A Critique of the Theory of Abrogation

Jasser Auda, Adil Salahi

• Publisher: The Islamic Foundation
• Year: 2018
• Print ISBN: 9781905837168
• eBook ISBN: 9780860377603
• Topic: Theology & Religion
• Subtopic: Islamic Theology

Jasser Auda's clear and brave views on abrogation in the Islamic tradition challenge orthodoxy and dogma in favor of flexibility and practical implication.

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.

Chapter One

Objectives of Islamic Law:
Concepts and Aims

IT IS IMPORTANT to start by defining certain terms and concepts which we will be using in this work. The first thing we need to clarify is what we mean by maqāṣid al-sharī‘ah or ‘objectives of Islamic law’. This is defined as ‘the results that God, the Legislator, wants to be achieved through His legislation and rulings’.1 We know these results through study, that is, by the efforts of scrupulous scholars to understand religious texts, putting them together and deducing what they aim to fulfil and achieve.

The ‘objectives’ have many divisions and classifications, the most comprehensive of which is provided by contemporary scholars who write in this field. They agree that there are three levels of objectives: general, special and partial.2

The general objectives refer to the purposes addressed in all aspects of Islamic law, or in numerous and varied aspects of it, such as tolerance, removal of hardship, justice, freedom, agreement with human nature, consistency with natural laws, the preservation of the Muslim community and its system, and so on.3

The general objectives include the five or six well-known essentials (ḍarūrāt, sing. ḍarūrah), which mean the safeguarding of faith, life, reason, offspring, property and family honour. The basis of classifying these as essentials is that they are considered essential to the continuity of human life itself. Scholars say that the safeguarding of these is the aim of every Divine faith.4 Thus, at the level of essentials, the objectives are matters of life and death.

At the level of needs (ḥājiyyāt), the objectives are less necessary for human life. They include matters like marriage, commerce, roads, means of transport and consumer goods, in our contemporary parlance. These interests or needs do not rise to the level of essentials unless they become non-existent in a particular society, causing a general crisis that may lead to the loss of the essentials. At the level of enhancements (taḥsīniyyāt), the objectives are in a lesser category than needs. In modern terms, they refer to what adds to people’s comfort, but can be dispensed with.5

The special objectives are certain interests and meanings addressed in a particular section of Islamic law, such as the objectives of taking care of children’s interests and preventing harm being caused to women in the section on family law; the objectives of crime prevention and establishing the truth in the penal law; and the objectives of clarity, prevention of uncertainty and cheating in financial transactions, and so on.

Partial objectives are defined as the underlying purposes considered by the Legislator in a particular ruling on certain details,6 such as the objective of ensuring truth and accuracy in determining the number and qualities of witnesses, or the objective of removing hardship in the exemption from fasting of those who find fasting too hard, and so on.

Scholars of the early generations and of modern days also discuss the objectives of faith, giving the matter terms that may differ from the ‘objectives of beliefs’ in form but agree in content. They speak of the ‘secrets (asrār), wisdom (ḥikam), purposes (aghrāḍ), beauties (maḥāsin), and qualities (manāqib)’ related to the right beliefs such as belief in God, His Books, His Messengers, the Last Day and His Will, as well as God’s attributes and actions, and so on.7

If we look at the history of the term al-maqāṣid we find that Imam al-Juwaynī, one of the founders of this discipline, sometimes refers to the objectives of Islamic law as ‘general interests’.8 Abū Ḥāmid al-Ghazālī considers all three types of objectives as part of unspecified interests (al-maṣāliḥ al-mursalah).9 Al-Ṭūfī defines interest as ‘what leads to the fulfilment of the objective of the Legislator by way of worship, not by way of habit’.10 The same is expressed by al-Qarafi as he said: ‘A rule: Islam does not consider an objective except what leads to the fulfilment of a proper purpose that ensures an interest or prevents harm’.11 Tāj al-Dīn al-Subkī said: ‘Shaykh al-Islām ‘Izz al-Dīn ibn ‘Abd al-Salām considers that the purpose of the entire body of fiqh is to serve people’s interests and ensure the prevention of harm. Were anyone to question him he would have summed it all up in serving people’s interests, because the prevention of harm is part of it’. Al-‘Izz said: ‘Whoever studies the objectives of Islamic law in serving interests and preventing harm will arrive at a conclusion that such-and-such interest must not be ignored and that such-and-such harm must not be done, even though there is no text, unanimity or analogy suggesting this. Indeed, the mere understanding of Islamic law requires this’.12 The objectives of Islamic law and interests in general are, according to many scholars of legal theory, two terms expressing the same meaning.

Defining the Legislator’s objectives by the text is a matter of scholarly discretion, but it has a basis in what God’s Messenger (peace be upon him) approved of in his Companions’ understanding and deeds. A case in point is reported in the two authentic Hadith anthologies of al-Bukhārī and Muslim, as well as other anthologies. Ibn ‘Umar reports: ‘When the Prophet (peace be upon him) came back to Madīnah after [the encounter with] the allies of Quraysh (al-Aḥzāb), he told us: “Let none of you pray ‘aṣr except at the quarters of Banī Qurayẓa”. When ‘aṣr was due, many were still on the way. Some of them said: “We shall not pray until we reach there”. Others said: “We shall pray, because he did not mean that literally [meaning that he only stressed that we should make haste]”. This was mentioned to the Prophet (peace be upon him) and he did not take issue with any of them’.13 In Muslim’s narration: ‘Others said: “We shall not pray except where God’s Messenger (peace be upon him) ordered us to pray, even though we miss out the prayer time”’.14

This Hadith speaking of offering the ‘aṣr prayer at the Qurayẓa quarters is a basic principle allowing firstly the determination of the objective of a particular text on the basis of one’s understanding, and secondly the permissibility of defining practical rulings according to this determined objective, even though it goes against the wording of the text. The Prophet’s Companions who said that the Prophet merely intended that they should make haste, and not that they must pray at the Qurayẓa quarters, actually disobeyed the apparent meaning of the order when they offered their prayer on the way. The other Companions, who insisted on waiting until they had arrived at the Qurayẓa quarters, even though it would be after the ‘aṣr time had lapsed, took the order literally. They left the reason for this order to God and His Messenger. The fact that the Prophet approved both actions means that both methods are permissible.

Scholars’ comments on this Hadith differ according to their schools of legal theory and whether they lean towards establishing rulings on the basis of the apparent meaning of a text or its objective. However, the majority of scholars lean towards the actions of those who acted on the basis of the objective behind the order. Ibn al-Qayyim sums up their view as follows: ‘Both parties will be rewarded according to their intentions. However, those who prayed on the way achieved both good actions: obeying the order to make haste and obeying the order to offer prayers on time… The fact that the Prophet (peace be upon him) did not take issue with those who delayed the prayer is due to the fact that they have the clear excuse of adhering to the literal meaning of the order.’15 Thus, Ibn al-Qayyim considers making haste, which is the objective understood by some of the Prophet’s Companions from the context, not the wording of the Hadith, to be a religious order in its own right and to be obeyed. He also considers that the others, who adhered to the literal meaning of the order, are excused for basing their action on their understanding, which to him was incorrect.

The adherents of the Ẓāhirī school, of older generations and more recent ones, do not consider inner meaning or ultimate aims. This is not part of their logic. Ibn Ḥazm expresses their view in his usual style: ‘Had we been there on the day of Banī Qurayẓa, we would not have prayed ‘aṣr until we had reached there, even if that had been after midnight.’16 This view is consistent with their methodology of legal theory, based on taking all texts at face value, without looking at their objectives or contexts.

This Hadith and similar ones represent a basis for what we present in this book, namely, to deduce rulings on the basis of the objectives of texts, relate rulings to such objectives and understand them within their framework, rather than to claim abrogation of texts without proper evidence confirming either the principle or its application. In looking at the objectives with such methodology we have several aims:

Firstly, this book aims to preserve the flexibility of Islamic fiqh and its ability to address changing circumstances and times, so that it can ensure people’s interests, taking into consideration ‘changes of time, place, conditions, people, intentions and results’, as Ibn al-Qayyim puts it. It may be right to enforce the apparent meanings of fatwas when all these dimensions remain the same. However, when time brings with it fundamentally different situations and practicalities, as is the case in our present time with regard to a very large number of issues and questions, we must not allow literalism to lead to hardship or harm that the objectives of Islamic law do not allow. Having cited the above-mentioned dimensions, Ibn al-Qayyim goes on to say:

The essential basis of Islamic law is wisdom and serving people’s interests in this present life and in the life to come. In all its parts and aspects, Islamic law ensures justice, deals with comp...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• Introduction
• Chapter 1: Objectives of Islamic Law: Concepts and Aims
• Chapter 2: Internal Contradiction or Mutual Exclusion by a Scholar
• Chapter 3: Abrogation: Definitions and Uses
• Chapter 4: A Critique of Some Methodologies Confirming Abrogation
• Chapter 5: Cases of How Objectives Help in the Enforcement of Superficially Contradictory Texts
• Theoretical and Practical Conclusions
• Bibliography
• Index