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    Wednesday, 4 February 2015

    Doctrine of Abrogation (Naskh)

    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 The abrogating text or evidence is called Nasikh, while the repealed rule is called mansukh.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)

    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.
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