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Footnotes

Ascriptive Naskh: Meaning & Scope Of Inheritance Verses

Another peculiar concept that emerged to become a very powerful tool used to assign meaning to the Qur’ánic enunciations is the notion of naskh.  Although the term itself can be traced to the language of the Qur’án, its applications and implications have colossal influence on the understanding and formulation of Islamic laws on inheritance in particular and Islamic jurisprudence in general.  Scholars’ positions on naskh had changed with time and from one school of thought to another.  Sunnis for instance, have charged that early Shi`ites have rejected naskh altogether charging that it was a form of badá’.  A closer examination of the Shi`ite books however, reveals that their position is more complex than it is made to be by Sunni critics.  In order to have a better sense of where each school of thought stands on this matter, I will briefly introduce some of the definitions as expressed in the works of the respective school of thought.

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Shi`ite scholars defined badá’ as “the making undesirable of something that was made desirable or the making desirable of something that was undesirable.”[77]  That is to say: making something that was legal illegal or making something that was illegal legal.  Otherwise said, mandating that someone should not undertake something then mandating that that same someone should do that same thing.  For a particular case to be considered badá’, they argued that five conditions must be met first:

·        The command must be regarding the same thing,

·        The object of the command must be the same,

·        The subject of the command must be the same,

·        The time must be the same, and

·        The circumstance must be the same.

If all the above conditions are satisfied, it follows then that abrogation can only be a case of badá’ since it can only be justified on the premise that knowledge has occurred necessitating the ratification of an otherwise wrong assessment.  Hence, it is said that—at first—it appeared (hence the term badá’) right to mandate something then it was proven wrong therefore requiring an abrogation of the initial ruling.  If anyone of the above conditions was not met, the case then, could not be considered badá’.

As to naskh, Shi`ite scholars appear to accept the general principle that law of the Qur’án could be abrogated.  For them, naskh is defined as “any aural proof (dalíl sam`í) determined to be lifted by a similar perpetual ruling sanctioned by an earlier written text in a manner without which the law would be perpetual despite its independence from it.”[78] The above-condensed definition also introduces some conditions that must be fulfilled before the case is considered naskh:

·        The násikh must be supported by a proof[79] because a command sanctioned by God’ shall not be lifted without proof. 

·        The násikh must be an aural[80] proof because naskh does not cover issues determined by reason. Religious matters shall not be lifted based on reason according to the Imámí Shi`ites.

·        The násikh must lift [81]an otherwise proven command, because if a legal proof does not void another then it shall not be considered an agent of abrogation. 

·        The násikh must be independent, because if it is explanatory to the original statement, then it shall not be considered a case of naskh; rather, it shall be considered a statement that is making an original case more specific.

If we juxtapose this definition of naskh with that provided by most Sunni authors it is evident that Shí`í definition would certainly exclude most of the naskh cases recorded in Sunni books.  Based on the conditions above, verses of specification (takh#í#), explanatory verses (bayán), and similar verses (mutashábihát) all do not satisfy the above-mentioned conditions.  Whereas Sunni scholars consider that to be some sort of naskh.  It must be noted nonetheless, that later Sunni jurists did adopt a more rational and analytical approach to defining naskh.  In fact, Sunni and Shí`í definitions become closer with time.

Conditions For Naskh In Sunni Thought

The later generations of scholars did not dispose of tradition as the dominant legal proof (dalíl) for naskh, but they produced more sophisticated formulation of the principles and conditions of naskh making it more approachable intellectually.  The list of conditions for naskh to be valid for instance is one good example of this evolutionary nature of the theory of naskh:

1.      Mansúkh must be supported by legal proof not through ijtihád (`aqlan)

2.      The násikh must be separated from the mansúkh and must be issued after the mansúkh chronologically.

3.      Naskh must be a general legal ordinance; for instance, the cessation of legal proof due to death shall not be regarded as naskh rather, it is an expiry of mandate.

4.      The mansúkh cannot be limited by a time stipulation.

5.      The násikh must be of equal or greater effect as the mansúkh

6.      The outcome of the mansúkh must be different from that of the násikh

7.      Naskh can only affects matters of human conduct; for instance, matters of theology shall not fall in the domain of naskh.[82]

Despite the refined definitions and guidelines for the determination of naskh cases, both schools of thought agree that the power of násikh traditions lays in the fact that it is an acoustic one.  In other words, oral traditional elocution could override any other form of expressions of legal rules or legal proofs; including written Qur’ánic verses.

Ground For Abú Muslim’s Rejection Of Naskh

Abú Muslim is a renowned opponent of the theory of naskh altogether.  His writings are not available today for examination but—based on the attention awarded to his dissent—it is reasonable to conclude that he had presented a strong case against the adoption of the principles and theories on naskh.  All scholars who dealt with naskh had referred to his views and had commented on his rejection of naskh.  Many of these scholars went as far as labeling him a ráfi_.  From what we can gather from the comments of other scholars on his views, we can establish the following objections as the main points Abú Muslim had used to refute the validity of naskh:

1.      Naskh is an act of voiding God’s sanctions due to some perceived defect.  This is not possible because God said that the Qur’án is protected.[83]

2.      If we accept the Qur’án to be valid for all times and places, recognizing that some verses were voided at some time, serves as a regressive proof that the Qur’án is not eternal.  On this ground, we must reject the theory of naskh.

3.      Most of the legal rules stated in the Qur’án are broad instruction and general principles.  The few verses that are made specific (takh#í#) are there to protect the rights of individuals, as is the case with the specific sanctions in family and inheritance laws.[84]

            The principle of naskh, more than any other principle, has been discussed and scrutinized by Muslim scholars leading to the current seemingly rational understanding.  However, rational and specific definitions are irrelevant if weighed against the inconsistency and inaccuracy in determining naskh occurrences.  Sunni orthodoxy that stemmed from Ash`arí superficiality (~áhirism) was at some point challenged by conflicting legal texts that expanded throughout time to include not only Qur’ánic text but also Prophetic traditions as well as opinions of the Companions and the Followers.  A proof of this predicament is the fact that scholars who came to accept the theory of naskh went as far as arguing that Sunnah can abrogate Qur’án.  Naskh therefore, has become a valuable means not only for reconciling texts that appear conflicting, but most importantly for manipulating legal sources to be in full agreement with the general ideological guidelines of schools of thought that were increasingly becoming predictable and systematic.
            As naskh was established as an independent science within the core of Islamic legal studies, it was incorporated and confused with a number of legitimate legal concerns namely supersession and precedent.  It remains my contention that naskh as defined in the third category has no basis whatsoever.[85]  The mention of abrogation in the Qur’án as well as the few references by the Muhammad may only be indicative of the first and second categories of naskh.  These are the major themes I thought needing attention and which ought to be challenged by modern scholarship[86] as far as Islamic legal history is concerned. 

            The knowledge of naskh is an abstract knowledge stored only in the memory of the privileged few—at least as far as the Muslim scholarship is concerned.  Even if it were to be recorded down in a written format, it would still depend on the oral validation by someone who is familiar with the násikh and mansúkh.[87] After all, what we have here is a case of written document, namely the Qur’án that contains void statements, which can only be identified by unwritten statements.[88] The attempt to collect these authoritative statements and write them down did not negate the effect of the parlance of the earlier generations of scholars, thus the discrepancies and the conflicts regarding the list of the násikh and mansúkh in later written literature is a non-issue as far as religious authority in Islam is concerned.  For them, it is the uttered word of the privileged scholars that determines the law.

Even in an era when theory was as important as tradition, the prominence of the discipline of kalám would indicate the role that speech had in formulating the law.  Fiqh and u#úl al-fiqh developed first under the watch of kalám which was an oral discourse.  Surely, that would have influenced the content and the style of the post-mi<nah Islamic law.  The attempts to systematize Islamic law—by producing all previously discussed principles of jurisprudence—did not lead to full positing of the legal rules.  Islamic law of inheritance is not, and never was, a system of rules extracted exclusively from the primary sources.

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