Principles of Islamic Jurisprudence by MH kamali

The requirement that the two rulings must be separate

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Unformatted text preview: the Qur'an and the Sunnah; its application to ijma` and qiyas, as will later be explained, has been generally overruled. And even then, the application of naskh to the Qur'an and Sunnah is confined, in terms of time, to one period only, which is the lifetime of the Prophet. There is, in other words, no naskh after the demise of the Prophet. But during his lifetime, there were instances when some of the rulings of the Qur'an and Sunnah were either totally or partially repealed by subsequent rulings. This was due mainly to the change of circumstances in the life of the community and the fact that the revelation of the Qur'an spanned a period of twenty-three years. The ulema are unanimous on the occurrence of naskh in the Sunnah. It is, however, with regard to the occurrence of naskh in the Qur'an on which there is some disagreement both in principle as well as on the number of instances in which naskh is said to have occurred. [3. Khallaf, Ilm, p. 222; Abu Zahrah, Usul, p.148.] Principles of Islamic Jurisprudence ~ Kamali 139 Abrogation is by and large a Madinese phenomenon which occurred as a result of the changes that the Muslim community encountered following the Prophet's migration to Madinah. Certain rules were introduced, at the early stage of the advent of Islam, which were designed to win over the hearts of the people. An example of this is the number of daily prayers which was initially fixed at two but was later increased to five. Similarly, mut`ah, or temporary marriage, was initially permitted but was subsequently prohibited when the Prophet migrated to Madinah. [4. Shatibi, Muwafaqat, III, 63; Badran, Usul, p. 447.] These and similar changes were effected in the nusus at a time when the Muslim community acquired sovereign authority and fresh legislation was deemed necessary to regulate its life in the new environment of Madinah. Some Hanafi and Mu'tazili scholars have held the view that ijma can abrogate a ruling of the Qur'an or the Sunnah. The proponents of this view have claimed that it was due to ijma` that `Umar b. al-Khattab discontinued the share of the mu'allafah al-qulub in the zakah. These were persons of influence whose friendship and co-operation was deemed to be beneficial to Islam. [5. Taj, Siyasah, p.14.] The Qur'an assigned them a share in zakah (al-Tawbah, 9:60), but this was discontinued apparently because the mujtahidun of the time reached a unanimous agreement to that effect. The correct view, however, is that owing to differences of opinion that are recorded on this matter, no ijma` could be claimed to have materialized. [6. Badran, Usul, p.458.] Besides, the majority of ulema have held that ijma` neither abrogates nor can be abrogated itself; and at any rate ijma cannot abrogate a nass of the Qur'an or the Sunnah. For a valid ijma' may never be concluded in contradiction to the Qur'an or the Sunnah in the first place. AlAmidi elaborates this as follows: the hukm which the ijma` seeks to repeal might be founded in a nass, another ijma, or qiyas. The first is not possible, for the ijma` which seeks to abrogate the nass of Qur'an or Sunnah is either based on an in...
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