Introduction
The
literal meaning of Naskh is “CANCELLING” or “TRANSFERRING”. In
its technical sense it is used to mean the “lifting (ral)” of a legal rule
through a legal evidence of a later date. The abrogating text or evidence is
called Nasikh, while the repealed rule is called mansukh.
All
the four Sunni Schools unanimously accept the doctrine of abrogation, though
they may disagree on the details. Most of the independent jurists also accepted
this doctrine. It may, therefore, be “overriding law” is a necessity in a legal
system and Islamic law acknowledge it. Such repealing in the texts, though,
could only occur during the lifetime of the Prophet (peace be upon Him), that
is abrogation where claimed came from the Lawgiver; it is not work of the
jurists.
Historical
Perspective
According
to al-Sahrakhsi, the Jews did not accept this concept in their legal system.
Perhaps, the reason for this was that they had very little chance of
implementing their system through a state, and their law has remained
theoretical having been developed mostly during the Diaspora. It is only in
modern times that they have been able to establish a state.
Although
some modern Muslim scholars have tried to deny the doctrine of abrogation, the
doctrine was firmly established within the Islamic legal system by the
unanimous agreement of all schools of law and their jurists.
Wisdom
Behind the Doctrine of Abrogation
It
is generally acknowledged that Islamic law works for the interest (maslahah) of
human beings. Interests may keep on shifting with a change in circumstances,
and the law adjusts accordingly. The law was laid down in the period of the
Prophet (PBUH) gradually and in stages. The aim was to bring a society steeped
in immorality to observe the highest standards of morality. This could not e
done abruptly. It was done in stages, and doing so necessitated repeal and
abrogation of certain laws.
Distinction
between Naskh (abrogation) and Takhsis (restriction)
The
concept of overriding laws ( Naskh jaz’l) is sometimes confused with
restriction(takhsis). The similarity between the two is that both annual a rule
for a certain class of people. The difference between the two is that inn the
case of abrogation the rule has become applicable to all without distinction and
a later evidence. Comes and removes it for certain people. In other words, the
rule has become applicable and an
obligation was created before it was removed. It the case of restriction,
the general rule is not established for a class of people ab initio, because the
restricting evidence was read with the general evidence; it did not become
operative at a later date.
The
main difference is that an abrogating evidence
operates after the obligation has been created, while a restricting evidence
operates before the creation of the obligation.
Justification
for the Doctrine of Abrogation
The
doctrine of abrogation has been described very briefly above. We have also
tried to describe some fine distinction, drawn by the jurists, between
abrogation and takhsis, also called naskh juz’l or partial abrogation. While
the doctrine of abrogation is reacted by many modern scholars, very few object to
takhis.. if we look the issue in a non-technical and objective way, we find
that there is no difference between the two processes, except in the quantum of
the effect they have on an existing rule.
For
example, one verse of the Holy Quran prescribes in general terms that any
person, male or female, indicting in unlawful sexual intercourse is
- · the consent of the parties
- · The presence of witnesses
- · Need of a guardian
- · Payment of dower
Types
of Abrogation
Abrogation
is of two types; explicit and implicit
Explicit
Abrogation: Explicit abrogation takes place whe the Lawgiver has explicitly
stated that a rule is abrogated. For example, The Prophet (PBUH) and “ I
used to forbid you form visiting graves, but you may do so now.”
Implicit
Abrogation:
Implicit abrogation takes place when the Lawgiver has not
expressly pointed out the abrogation, but has laid down a new rule that conflicts
with an earlier rule and there is no chance of reconciling the two provisions.
And example is the period of iddat for a woman after the death of her husband.
Qualifications
upon General Declaration
Some
times the general declarations of the
Quran are qualified by the Prophet (PBUH)
Illustration
The
Quran makes a general declaration that the hands of a male thief as well as a
female thief are to be cut. This general declaration is qualified by the Sunnah
of the Holy Prophet (PBUH)
- · That the convict should not be minor
- · Should not be lunatic person ( of unsound mind)
- · The punishment should be suspended during war\
- · Stealing of food in not punishable
- · The punishment should not be awarded in petty.
Exceptionality
of Sunnah
The
Sunnah sometimes creates exception to the general rule of the Quran. The Quran
makes a declaration that a person may give his property in the manner he/she
likes. But the Sunnah of the holy Prophet (PBUH) created an exception to the
general rule that a person should bequeath his property.
0 comments:
Post a Comment