Principles of Islamic Jurisprudence by MH kamali

Similarly the punishment of stoning for zina which is

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Unformatted text preview: az) property. These would all be deemed abrogated following the revelation of the ayah in sura alMa'idah (5:83) which prescribes mutilation of the hand for theft without any qualification whatsoever. If we were to open this process, it would be likely to give rise to unwarranted claims of conflict and a fear of departure from the Sunnah. [34. Shafi'i, Risalah, pp. 57-58. In raising the fear of departure from the Sunnah, Shafi'i was probably thinking of the doubts that would arise with regard to establishing the precise chronological order between the Qur'an and Sunnah in all possible cases of conflict. Since the Qur'an is generally authentic, any doubts of this nature are likely to undermine the Sunnah more than the Quran.] Notwithstanding the strong case that al-Shafi'i has made in support of his doctrine, the majority opinion, which admits abrogation of the Qur'an and Sunnah by one another is preferable, as it is based on the factual evidence of having actually taken place. AI-Ghazali is representative of the majority opinion on this when he writes that identity of source (tajanus) is not necessary in naskh. The Qur'an and Sunnah may abrogate one another as they issue both from the same provenance. While referring to al-Shafi'i's doctrine, al-Ghazali comments: `how can we sustain this in the face of the evidence that the Qur'an never validated Jerusalem as the qiblah; it was validated by the Sunnah, but its abrogating text occurs in Principles of Islamic Jurisprudence ~ Kamali 148 the Qur'an? Likewise, the fasting of `Ashura' was abrogated by the Qur'anic provision concerning the fasting of Ramadan while the former was only established by the Sunnah. Furthermore, the Qur'anic ayah which permitted conjugal intercourse at night-time in Ramadan (al-Baqarah, 2:178) abrogated the prohibition that the Sunnah had previously imposed on conjugal relations during Ramadan'. Mustasfa, I, 81; see also Amidi, Ihkam, III, 150ff.] Abrogation, Specification (Takhsis) and Addition (Taz'id) Naskh and takhsis resemble one another in that both tend to qualify or specify an original ruling in some way. This is particularly true, perhaps, of partial naskh, which really amounts to qualification / specification rather than repeal. We have already noted al-Shafi'i's perception of naskh which draws close to the idea of the coexistence of two rulings and an explanation of one by the other. A certain amount of confusion has also arisen between naskh and takhsis due to conceptual differences between the Hanafis and the majority of ulema regarding naskh in that they tend to view naskh differently from one another. These differences of perspective have, however, been treated more pertinently in our discussion of the Amm and the Khass. In this section, we shall outline the basic differences between naskh and takhsis without attempting to expound the differences between the various schools on the subject. Naskh and takhsis differ from one another in that there is no real conflic...
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