środa, 8 czerwca 2011

Naskh (Abrogation).

The existence of abrogation within Islamic legislation is
among the manifestations of human welfare considerations in
Islamic legislation. God may prescribe a law suitable to people at the
time of its enactment, or it may serve a particular limited purpose.
However, its suitability may later disappear or its unique purpose
may have been achieved. In such circumstances, the need for the law
ceases to exist and its validity becomes cancelled. The following are
only a few of many such examples which may be found recorded in
both the Qur’aan and the Sunnah.50
Bequest (Waseeyah): In pre-Islamic Arab culture, his children
inherited the property of the decease, and parents would only inherit
if a bequest were made.51 Thus, in the early stages of Islaam, Allaah
made the writing of a bequest for parents and relatives compulsory,
in order to teach the new community of Muslims the importance of
family rights with regard to their wealth.
“It is prescribed that when death approaches any
of you, if he leaves behind any goods. That he
make a bequest to parents and next of kin,
according to what is reasonable. This is due from
the pious.”52
However, after the community willingly accepted this law and they
began to strictly put it into practice, Allaah replaced it by revealing
in the Qur’aan a clearly defined system of inheritance laws. And the
Prophet (s.w.) further confirmed the abrogation of the old laws by stating, “Surely Allaah has given everyone with a right (to
inheritance) his right, so there should be no bequest for inheritors.”

Mourning Period: The widow’s mourning period was originally a
full year, and it was compulsory for her husband to leave in his will
provision for maintenance and housing during that whole period the
Qur’aan states:
“If any of you die and leave widows behind, a
bequest of a year’s maintenance and residence
should be made for their widows. But it they
leave the residence, there is no blame on you for
what they do with themselves, provided it is
reasonable. And Allaah is exalted in power,
wise.”

Then the waiting period was reduced to four months and ten days.
“If any of you die and leave widows behind, they
shall wait concerning themselves four months
and ten days. When they have fulfilled their term,
there is no blame on you if they dispose of
themselves in a just and reasonable manner. And
Allaah is well acquainted with all that you do.”

And the bequest was cancelled by the verses on inheritance
which stipulated a specific portion for widows: one quarter of all the
inheritance if she did not have any children, and one eight if she had
children.
Fornication: Originally, the punishment for the crime of fornication
and adultery, as well as other sex crimes like homosexuality, was the confinement and punishment of offenders in their homes until they
became repentant and sought to reform themselves.
“If any of your women are guilty of sex crimes,
take the evidence of four witness from amongst
you against them. And if they testify, confine
them to houses until death claim them, or Allaah
ordain for them another way. If two men among
you are guilty of sex crimes, punish them both;
but if they repent and make amends, leave them
alone. For Allaah is Oft-returning, Most
Merciful.”56
This law was later abrogated in the Qur’aan by the setting of a
particular exemplary punishment.
“Flog the woman and man guilty of fornication
one hundred lashes. And, if you believe in Allaah
and the Last Day, do not let compassion move
you in their case for it is a matter decided by
Allaah. And let a group of the believers witness
the punishment.”57
Furthermore, the Prophet (s.w.) applied the punishment of stoning to
death for those who committed adultery58 and set the death penalty
for homosexuals without specifying the method.59
A review of the abrogated verses indicates that the early law
may be replaced by a more severe law, as in the case of the law for
fornication which changed from confinement and punishment to lashes or stoning to death; or it may be replaced by a less severe law
as in the case of the mourning period for widows; or it may be
replaced by a similar but more suitable law. At any rate, in all cases,
the abrogated law was suitable for the time and circumstances under
which it was revealed. When the situation changed, a new law was
enacted in order to realize Allaah’s intent in the earlier legislation.
Were it not for the situation of the Muslim community earlier, the
abrogating law would have been enacted from the beginning. For
Example, in the case of the widow who was at first required to wait
in her deceased husband’s house in mourning for the period of one
year during which she could not get married, it was the custom of the
Arabs to confine widows and prevent them from marriage for
indefinite periods, lasting from a year to the remainder of their lives.
And, during the period of confinement, they were obliged to wear
their worst clothes.60 If the waiting period were reduced to four
months and ten days along with the permission for them to leave
their houses if they wished, the early Muslims would have had great
difficulty in accepting it. Consequently, a year of mourning was set
along with the cancellation of the confinement and the obligation of
maintenance. Shortly after they had accepted the change and
adjusted to it, the new law was revealed reducing the period of
mourning.
Thus, abrogation contained in it consideration for human
conditions and their welfare during the era of the prophet hood which
ended with the death of the Prophet (s.w.), for there can be no
abrogation after his time.61
Legislative consideration of human welfare after the era of
prophet hood can be found in the fact that Islamic laws were enacted
for reasons, many of which were clearly mentioned.
The following verses of portions of verses from the Qur’aan
are among the many cases where the purposes for the enactment of
laws were explained:

“Oh you who believe, fasting has been prescribed
for you as it was prescribed for those before you
in order that you may be conscious of God.”62
“Take some charity from their wealth to purify
them and make them grow (spiritually)…”63
“Satan’s plan is to incite enmity and hatred
between you, with intoxicants and gambling, and
prevent you from the remembrance of Allaah and
from prayer. Will you not then give it up?”64
The Prophet (s.w.) often made mention of the rationale
behind his legal pronouncements. For example, in the case of the
abrogation of the prohibition of visiting graveyards, he was reported
to have said, “I had forbidden you from visiting the graveyards,
however, permission has been given to me to visit the grave of my
mother. So, visit them, for they do remind one of the next life.”65
The explanation of the reasons for laws indicates that the
presence of absence of laws depends on the existence or nonexistence
of their causes. If the benefit for which the law was enacted
continuous, then the law is continuous; but if it has changed due to a
change in circumstances, the law must also change; otherwise there
would not be any benefit in its continued existence. On the basis of
this principle, ‘Umar ibn al-Khattaab cancelled the distribution of the
portion of Zakaah assigned for the encouragement of non-Muslims to
accept Islaam which the Prophet (s.w.) used to give out. As he
explained, the need for their encouragement existed during the time
when Islaam was on the rise and in need of support, however, in his
time the Islamic state was already firmly established.

SOURCE : "The evolution of fiqh" by Dr. Bilal Philips

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