A Critique of the Theory of Abrogation - Softcover

Auda, Dr. Jasser

Softcover

ISBN 10: 086037730X ISBN 13: 9780860377306

Publisher: Kube Publishing Ltd, 2019

Synopsis

A typical definition of abrogation found in the Jurisprudence literature is: ‘The (heavenly) replacement of one juridical ruling with a later ruling.’

This book surveys the subject of abrogation (Naskh) in the Qur’an, Hadith and Islamic literature, illustrating that the concept of abrogation was introduced after the Prophetic era in order to explain certain verses of the Qur’an and what has come to be termed as “conflicting Prophetic narrations” (Mukhtalaf al-Hadith).

It goes on to suggest that the “abrogated rulings” were merely pre-Islamic cultural practices that contradicted with Islamic principles. Furthermore, the book argues that the Qur’anic verses and Prophetic narrations, which were misperceived as “conflicting,” should be contextually situated and applied according to the wisdom behind them with the practical implication being the validation of all Qur’anic verses and (authentic) Prophetic instructions regardless of their perceived contradictions. Allowing Islamic jurisprudence to retain its flexibility within changing circumstances.

About this title

About the Author:

Dr. Jasser Auda is the Executive Chairman of the Maqasid Institute, a global think tank based in London, and a Visiting Professor of Islamic Law at Carleton University in Canada. He is a Founding and Board Member of the International Union of Muslim Scholars, member of the European Council for Fatwa and Research, Member of the Fiqh Council of North America, Al-Shatibi Chair of Maqasid Studies at the International Peace College South Africa, Fellow of the Islamic Fiqh Academy of India, and General Secretary of Yaqazat Feker, a popular youth organization in Egypt. He has written 25 books in Arabic and English.

Excerpt. © Reprinted by permission. All rights reserved.:

Introduction

 

 

A rule of false logic has pervaded intellectual and philosophical methodologies, which we may call ‘the rule of inevitable false dualism’. It simply involves that any philosophical question may be presented as a choice between two logical conclusions and there can be no third alternative. Debate ensues between two extreme opposites and each debater tries hard to prove their point and refute their opponent’s argument.

 

For example, there is long-drawn debate between the advocates of objectivism, who maintain that things have natural realities that we can arrive at through consciousness, and the advocates of subjectivism, who claim that it is impossible to arrive at the reality of things. People simply have certain mental pictures of things. Each side makes certain arguments in support of their principle. We note that there are few attempts to come up with a theory that combines the facts of both sides, such as those who speak of ‘a reality with a social subjectivity’ as an alternative to both views. These try to combine all that is right in all views and reconcile the seemingly contradictory arguments.

 

Students of philosophy argue about another supposedly inevitable dualism even though it is false, namely, the dualism of science and religion. Many people imagine that the two are mutually contradictory. Indeed, this dualism appeared in our Islamic heritage under the heading ‘the contradiction between reason and revelation’ or ‘the contradiction between the rational view and religious text’. This occurred in spite of the strong emphasis Islam lays on the bond between faith and intellectual reasoning, which is well known to all. Many people imagine that they have to make an inevitable choice between what belongs to religion and what belongs to science. Other correlative choices are between the material and the metaphysical; personal interest and morality; the material and the spiritual; and other opposites that are by no means mutually exclusive.

 

Science and religion may be mutually contradictory in a particular area or dimension. For example, religion gives top position to its texts, while science accords that position to experience and observation. However, who can say that the Islamic faith, and its central belief, is not based on experience and observation? Who can claim that intellectual consideration of scientific findings has nothing to do with the divine text? The Qur’anic method of proving God’s existence and belief – in anything – is based on observation and contemplation. God says in the Qur’an: ‘Say: “Consider all that there is in the heavens and the earth.”’ (10: 101) ‘No fault will you see in what the Lord of Grace creates. Turn up your eyes: can you see any flaw? Then Look again, and again: your vision will come back to you dull and weary’. (67: 3–4) Indeed, Ibn Taymiyyah was absolutely right when he chose for his voluminous work on logic and philosophy the title: ‘Prevention of contradiction between reason and revelation, or the consistency between authentic religious texts and clearly rational views’. Moreover, religion and science are mutually complementary in several other areas, such as that both aim at the achievement of human happiness, and both attach central importance to the origin of life, the system of existence, and so on.

 

We may also consider that mind as an abstract and as matter, which is subject to our senses, are mutually complementary, rather than contradictory. If we extend our area of consideration beyond the domain of the five senses, we realise that the most recent theories of comprehension and the brain suggest that mind and matter have mutual influence on each other. Numerous examples of the interaction between mind and matter are given in contemporary sciences, such as having a hunch that leads to a fact without there being any material evidence pointing to it, or a dream that comes true, or the effect of spiritual and psychological factors on patients. We only need to think of the effect of ruqyah, which is a supplication, in speeding a patient’s recovery.

 

Islamic legal theory (usul al-fiqh) – the different schools of which represent the philosophy of Islamic legislation – was not immune to the different philosophical systems and their false assumptions. A number of false dualisms appeared in some theories of usul al-fiqh leading to long-drawn debates and differences. Yet some scholars of legal theories were aware that it was possible in each such case to reconcile opposed views within a creative and useful framework.

 

For example, scholars of legal theory differ concerning the acceptability of certain secondary sources as evidence or as the basis of rulings. Some would consider a certain source as acceptable evidence pointing to a particular conclusion or ruling, while others would consider it unacceptable or ‘false’, in the legal theorists’ parlance. If a source of evidence is acceptable then it may serve as a basis for a ruling, while a ‘false’ source is essentially unacceptable under any circumstances, and as such no ruling can be based on it. Examples of this include al-Shafi‘i’s book, Butlan al-Istihsan, or ‘The invalidity of subtle analogy’; Dawud’s book, Ibtal al-Qiyas, or ‘Refuting analogy’; Ibn al-Rawandi’s book, Ibtal al-Tawatur, or ‘Refuting recurrence’; the disagreement between the Maliki and the Shafi‘i schools on whether the actions of the people of Madinah serve as evidence for rulings or not; and the disagreement between the Zahiris, Ja‘faris and Zaydis on one side and the rest of the fiqh schools on the other side on whether analogy is acceptable as evidence or not.

 

For example, the practice or the unanimity of the people of Madinah is a full source of evidence according to the Maliki school of fiqh. Imam Malik determined many questions on its basis, such as the unanimity of the people of Madinah in explaining certain verses of the Qur’an. He considered such practice or unanimity a standard by which greater weight is given to certain hadiths of the category of ahad (narrated by single reporters). Imam al-Shafi‘i rejects the very concept of giving the people of Madinah or their practice any special legislative status. He argues that it could open the door to claiming such status for the unanimity of the people of other cities.[1]

 

Some scholars, such as Ibn Taymiyyah and Ibn al-Qayyim, take a different view, which does not consider the question as an inevitable dualism. They accept the practice of the people of Madinah as a basis in considering certain questions, although they themselves belong to the Hanbali school of fiqh, which rejects the idea of considering such practice as a source of evidence. Ibn Taymiyyah, for example, considers the unanimity of the people of Madinah, the Prophet’s city, as a sort of collective narration of the Prophet’s Sunnah. As such, it is treated as another narration that may even be more authentic than narrations by single reporters. This is a fine and logical solution that puts this source of evidence in a broader perspective that enables us to benefit from what is positive and useful of it, rather than confining it to the restriction of a dualism that either totally accepts or rejects it.[2]

 

Let us take another example of false dualism from legal theory, which is known as ‘the concept of opposite implications’ (mafhum al-mukhalafah). All main schools of legal theory, apart from the Hanafi school, consider the meaning of the wording of a text to be of two parts: agreement and disagreement. Thus, the concept of disagreement means that if the wording of a text confirms a particular ruling, then according to the concept of opposite implications, the same wording confirms its opposite. In other words, the presence of a particular fact means logically the absence of its opposite. The fiqh schools that adopt the concept of opposite implications divide it into five categories: name, description, condition, extent and number. Thus, the mention of any of these five categories in the text of the Qur’an or a hadith means that its opposite is non-existent or false. The Hanafi scholars reject this logic, but their rejection is not based on rejecting the concept of false dualisms. They consider that a single reason behind a religious text cannot include two rulings at the same time.[3] Yet this is another false dualism.

 

For example, fiqh scholars discuss the adjective ‘pastured’ in the hadith: ‘Zakat is due on pastured animals’.[4] According to the concept of opposite implications, cows that are not taken to pasture are not liable for zakat in the view of the majority of scholars,[5] even though they represent a property liable to growth. This is clearly contrary to the very purpose of zakat. An example of the ‘description’ category and the application of the concept of opposite implications occurs in the following Qur’anic verse: ‘Any of you who, owing to circumstances, is not in a position to marry a free believing woman may marry a believing maiden from among those whom your right hands possess’. (4: 25) The description here is the word ‘believing’, which refers to women and maidens. Al-Shafi‘i considers belief a condition for the validity of marriage. Hence, operating the concept of opposite implications, al-Shafi‘i considers marriage with non-believers unlawful in all situations. By contrast, the Hanafi scholars, who do not accept the concept of opposite implications, consider that a Muslim man may marry a woman who is a believer or an unbeliever. They argue that the adjective ‘believing’ in the verse does not necessarily negate unbelievers. Thus, they reject the false dualism.

 

In the category of ‘condition’ we may give the following example of inevitable dualism. God says in the Qur’an: ‘If they [meaning divorced women] are with child, maintain them until they have delivered their burden’. (65: 6) Implementing the concept of opposite implications, scholars say that if a divorced woman is not pregnant, then she does not have the right to maintenance by her divorcing husband. This is contrary to the understood meaning that when a man chooses to divorce his wife, he bears certain financial responsibility towards her. The Hanafi scholars disagree because they reject the concept of opposite implications,[6] not because of the contradiction with the understood meaning.

 

An example of the ‘extent’ category is found in the following verse detailing rulings applicable to fasting: ‘Eat and drink until you can see the white streak of dawn against the blackness of the night’. (2: 187) This verse makes clear that eating and drinking are permissible until the specified time, but not after that. The Hanafi school shares the same ruling, but the Hanafi scholars consider that the verse mentions eating and drinking as primary actions, and that they are specifically meant, not as a result of the concept of opposite implications.[7]

 

The concept of opposite implications is also applied to ‘number’. Thus, when a verse of the Qur’an or a hadith mentions a particular number, then all other numbers are, according to this concept, unacceptable. It is not possible that any other number, even ones mentioned in other verses or hadiths, can replace that specified number in the same context. Examples are found in the hadiths concerning zakat and specify thresholds for liability to zakat in different types of property. These thresholds, specifying numbers, may differ in different narrations or hadiths. Most scholars resort to the solution of specifying a particular number and rejecting others, either through considering a particular text weightier on balance or through inevitable choice even though different narrations are equally authentic, or through abrogation even though the abrogated text is confirmed. All this is not religiously required. This book is a critiqu...

About this edition

• Publisher: Kube Publishing Ltd
• Publication date: 2019
• ISBN 10: 086037730X
• ISBN 13: 9780860377306
• Binding: Paperback
• Number of pages: 160