Creating Capaciousness in Islamic Law : An Examination of Abrogation & Consensus

Abstract

To Amidi and Ghazali, the real object of an abrogation is, of course, a rule of law or other type of divine categorization of a human act, not a text. But since, according to the majority view, only rules contained within the meaning of Qur’anic and Sunnaic texts may abrogate or be abrogated, abrogation remains very much an intertextual phenomenon. As with most technical terms employed by Muslim jurisprudents, “abrogation” (naskh) is variously defined. Amidi critiques a number of definitions before turning to one that he finds acceptable, that of Baqillani, which was also espoused by Ghazali. According to Baqillani, abrogation is “addressed speech of the Legislator that indicates that a rule of law established by earlier addressed speech has become inoperative and does so in such a manner that, were it not for the later addressed speech, the rule would continue to be operative.” Amidi and Ghazali explain that this definition embraces four components, all of which constitute exclusions. “Addressed speech” excludes other things that may indicate that a rule of law has become inoperative, such as death, sickness, and mental incapacity. “Established by earlier addressed speech” excludes from consideration rules established by human reason apart from revelation. Such rules are invalid from the beginning and cannot, therefore, be subject to abrogation. “In such a manner that, were it not for the later addressed speech, the rule would continue to be operative” excludes from consideration rules that would become inoperative in any case because of their having been originally presented as operative within a fixed time span. “Earlier addressed speech” abbreviates the Arabic original, which describes the speech in question both as preceding the other speech and as being remote from it, that is to say, as being an unattached appendage. It thus excludes speech that is in any way syntactically tied to the other speech. Amidi and Ghazali go to considerable lengths to defend this definition of abrogation against various criticisms leveled against it but nonetheless gives us, in the end, a definition of their own making, which, they tell us, contains all truly essential exclusions while using fewer words. Abrogation, according to this more succinct definition, is “addressed speech of the Legislator that obstructs the continuing operation of a rule established by means of preceding speech.” It must be noted that these definitions contain no phrase that limits abrogation to the sphere of Qur’anic and Sunnaic texts. The phrase “addressed speech of the Legislator” does not in and of itself necessarily enforce such a limitation. All rules of law are representative of the addressed speech of the Legislator. For those jurisprudents, like Amidi and Ghazali, who accepted the idea that valid rules of law may be established by a consensus or on the basis of analogies discerned by individual mujtahids, trained Islamic legal scholars, this could only mean that the addressed speech of the Legislator was not limited to words found in Qur’anic and Sunnaic texts. Thus, Baqillani’s and Amidi’s and Ghazali’s definitions of abrogation leave open the question of exactly what, within the domain of the addressed speech of the Legislator, may and may not abrogate or be abrogated. Amidi and Ghazali also explain the relationship between the terms “abrogator” (alnasikh) and “abrogated” (al-mansukh). The former, they say, is subject to a variety of uses. Sometimes it is applied to God, sometimes to specific texts, sometimes to rules that replace other rules, and sometimes to the mujtahid who claims that a rule has been abrogated. However, only God, they say, is an abrogator in the proper sense. “Abrogated,” on the other hand, is applicable only to one thing, the rule that has become inoperative.