Principles of Islamic Jurisprudence by M. H. Kama Part 12

permission to do something and that this is the widest meaning of amr, which is common to all three of
the foregoing concepts.
[4. Badran, Usul, p. 361; Shawkani, Irshad, p. 91.]
According to the majority opinion, however, a command by itself, that is, when it is not attended by
clues or circumstances that might give it a particular meaning, implies obligation or an emphatic
demand only. But this may change in the event of other indications being present, which might reduce a
command to permissibility, recommendation, or indeed to a variety of other meanings. Thus when we
read in the Qur'an commands such as kulu wa'shrabu (`eat and drink') (al-A'raf, 7:31), the indications
are that they amount to no more than permissibility (Ibahah). For eating and drinking are the necessities
of human life, and a command in respect of them must logically amount to a permissibility only.
Similarly the Qur'anic permission in respect of hunting after the completion of the hajj ceremonies
given in sura al-Ma'idah (5:2 - wa idha halaltum fastadu) and its address to the believers to 'scatter in
the land' (fa'ntashiru fi'l-ard) after performing the Friday prayers (al-Jumu`ah, 62:10) are both in the
imperative form. But in both cases the purpose is to render these activities permissible only.
Muwafaqat, III, 88.]
A command may likewise convey a recommendation should there be indications to warrant this
conclusion. This is, for example, the case with regard to the Qur'anic command which requires the
documentation of loans: `When you give or take a loan for a fixed period, reduce it into writing' (alBaqarah,
2:282). However, from an indication which occurs in the next ayah in the same sura, it is
concluded
that the command here implies a recommendation (nadb)
only. This ayah reads: `and if one
of
you deposit a thing on trust, let the trustee [faithfully] discharge his trust'. Here the use of the word
'trust'
(amanah)
signifies that the creditor may trust the debtor even without any writing.
The majority of ulema have held the same view regarding the requirement of witnesses in commercial
contracts, which is the subject of another Qur'anic command occurring in the same passage, known as
the ayah al-mudayanah (2: 282): 'Whenever you enter a contract of sale, let it be witnessed and let
neither the scribe nor the witness suffer harm.' The Zahiri ulema have upheld the obvious meaning of
these provisions and have made documentation a requirement of every loan, or any form of deferred
payment, and have made witnesses a requirement of every contract of sale. This, in their view, is more
conducive to the fulfillment of contracts and the prevention of disputes among people.
p.75; Badran, Usul, p.362.]
A command may, according to the indications provided by the context and circumstances, imply a
threat, such as the Qur'anic address to the unbelievers: 'Do what you wish' (i`malu ma shi'tum-al-Nur,
24: 33) and to the devil: 'Lead to destruction those that you can' (wastafziz man intata'ta) (Bani Isra'il,
17:64). A command may similarly imply contempt (ihanah) such as the Qur'anic address to the
unbelievers on the Day of Judgment: 'Taste [the torture], you mighty and honourable!' A command may
sometimes imply supplication when someone says, for example, `O Lord grant me forgiveness', and
indeed a host of other meanings which may be understood in the light of the context and surrounding
Principles of Islamic Jurisprudence ~
[5. Cf. Shatibi,
[6. Khallaf, Ilm, p.111.]
[7. Abu Zahrah, Usul, Kamali 132
circumstances.
[8. Badran, Usul, p.363; Hitu, Wajiz, pp.134-138]
 As already noted, the majority of ulema have held that a
command normally conveys an obligation unless there are indications to suggest otherwise.
The Lawgiver may at times order something which has hitherto been prohibited. The question then
arises as to the nature of a command which follows a prohibition (al-amr ba'd al-hazar); does it convey
an obligation or a mere permissibility? The majority of ulema have held the view that a command
following a prohibition means permissibility, not obligation. Two examples of such a command in the
Qur'an have already been given above in the context of the permission to hunt following its prohibition
during the hajj ceremonies and the permission to conduct trade following its prohibition at the time of
the Friday prayers (al-Ma'idah, 5:2; and al-Jumu'ah, 62:10 respectively)
[9. Badran, Usul, p.363; Hitu, Wajiz, p.141.]
 An
example of such a command in the Sunnah is the Hadith in which the Prophet is reported to have said: 'I
had forbidden you from ,visiting the graves. Nay, visit them, for it reminds you of the hereafter'.
Ghazali, Mustasfa, I, 83; Amidi, Ihkam, IV, 211; Tabrizi, Mishkat, I, 554, Hadith no.1769.]
The next question which arises in this connection is whether a command requires a single compliance
or repetition. According to the majority view, this question can only be determined in the light of
indication, which might specify that repeated performance is required. However in the absence of such
indications, a single instance of performance is the minimum requirement of a command. Among the
indications which determine repetition is when a command is issued in conditional terms. For example,
the Qur'anic provision `if you are impure then clean yourselves' (al-Ma'idah, 5:7), or the text which
provides: 'The adulterer and adulteress, flog them each one hundred lashes', that is, if they commit
adultery (al-Nur, 24:2). Since the command to take a bath in the first ayah is conditional on janabah,
that is, on sexual intercourse, then a bath must be taken following every instance of sexual intercourse.
Similarly when a command is dependent on a cause or an attribute, then it must be fulfilled whenever
the cause or the attribute is present. The Qur'anic command, for example, which reads: `Perform the
salah at the decline of the sun' (Bani Isra'il, 17:18), requires repeated performance at every instance
when the cause for it is present, that is, when the specified time of salah arrives.
Badran, Usul, p.364.]
Principles of Islamic Jurisprudence ~ Kamali 133
[10.
[11. Shawkani, Irshad, pp 98-99;
As for the question whether a command requires immediate or delayed performance, it is once again
observed that the command itself merely consists of a demand, and the manner of its performance must
be determined in the light of indications and surrounding circumstances. When, for example, A tells B
to 'do such and such now', or alternatively orders him to `do such and such tomorrow', both orders are
valid and there is no contradiction. However, if a command were to require immediate execution then
the word `now' In the first order would be superfluous just as the word `tomorrow' in the second order
would be contradictory. When a person commands another to `bring me some water' while he is thirsty,
then by virtue of this indication, the command requires immediate performance just as the order to
'collect the rent' when it is given, say, in the middle of the month while the rent is collected at the end of
each month, must mean delayed performance.
It is thus obvious that the commandant may specify a particular time in which the command must be
executed. The time limit may be strict or it may be flexible. If it is flexible, like the command to
perform the obligatory salah, then performance may be delayed until the last segment of the prescribed
time. But if the command itself specifies no time limit, such as the order to perform an expiation
(kaffarah), then execution may be delayed indefinitely within the expected limits of one's lifetime.
However, given the uncertainty of the time of one's death, an early performance is recommended,,
regard to kaffarat.
[12. Shawkani, Irshad, pp.99-100; Badran, Usul, pp.365-366.]
And lastly the question arises as to whether a command to do something implies the prohibition of its
opposite. According to the majority view, a command to do something does imply the prohibition of its
opposite regardless as to whether the opposite in question consists of a single act or of a plurality of
acts. Thus when a person is ordered to move, he is in the meantime forbidden to remain still; or when a
person is ordered to stand, he is forbidden from doing any of a number of opposing acts such as sitting,
crouching, lying down, etc. However, some ulema, including al-Juwayni, al-Ghazali, Ibn al-Hajib and
the Mu'tazilah, have held that a command does not imply the prohibition of its opposite. A group of the
Hanafi and Shafi'i ulema have held that only one of the several opposing acts, whether known or
unknown, is prohibited, but not all.
[13. Shawkani, Irshad, pp.101-102.]
 The result of such differences would
obviously have a bearing on whether the person who commits the opposite of a command must be
penalized, and if so, to what extent. Specific answers to such questions can obviously only be
determined in the light of the surrounding circumstances and the state of mind of the individual
concerned, as well as the general objectives of the Lawgiver/commander that can be ascertained in a
given command.
II. Prohibitions
Prohibition (nahy), being the opposite of a command, is defined as a word or words which demand the
avoidance of doing something addressed from a position of superiority to one who is inferior.
Usul, p.366.]
 The typical form of a prohibitory order in Arabic is that of a negative command beginning
with la such as la taf'al (do not), or the Qur'anic prohibition which reads 'slay not [la taqtulu] the life
which God has made sacred' (al-An'am, 6:151). A prohibition may be expounded in a statement (jumlah
Principles of Islamic Jurisprudence ~
[14. Badran,Kamali 134
khabariyyah) such as occurs, for example, in the Qur'an (al-Baqarah, 2:221): `prohibited to you are the
flesh of dead corpses and blood'. It may sometimes occur in the form of a command which requires the
avoidance of something, such as the Qur'anic phrase wa dharu al-bay' (`abandon sale', that is during the
time of Friday salah-al-Jumu`ah, 62:100), or wa'jtanibu qawl al-zur (`avoid lying') in sura al-Hajj
(22:30), or may occur in a variety of other forms that are found in the Qur'an.
A prohibition, like a command, may convey a variety of meanings. Although the primary meaning of
nahy is illegality, or tahrim, nahy is also used to imply a mere reprehension (karahiyyah), or guidance
(irshad), or reprimand (ta'dib), or supplication (du'a'). An example of nahy which implies reprehension
is the Qur'anic ayah addressing the believers to `prohibit not [la tuharrimu] the clean foods that God
has made lawful to you' (al-Ma'idah, 5:87). Nahy which conveys moral guidance may be illustrated by
the Qur'anic ayah addressing the believers to 'ask not questions about things which, if made plain to
you, may cause you trouble' (al-Ma'idah, 5:104). An example of nahy which implies a threat is when a
master tells his recalcitrant servant: `Don't follow what 1 say and you will see.' An example of nahy
which conveys supplication in the Qur'an occurs in sura al-Baqarah (2:286) which reads: 'Our Lord,
condemn us not if we forget.' Since nahy can convey several meanings, the ulema have differed as to
which of these is the primary (haqiqi) as opposed to the secondary or metaphorical meanings of nahy.
Some have held that illegality (tahrim) is the primary meaning of nahy while others consider
reprehension (karahiyyah) to be the original meaning of nahy. According to yet another view, nahy is a
homonym in respect of both. The maturity (jumhur) of ulema have held the view that nahy primarily
implies tahrim, a meaning which will be presumed to prevail unless there are indications to suggest
otherwise. An example of nahy in the Qur'an which has retained its primary meaning is the phrase 'la
taqtulu' in the ayah which provide, `slay not life which God has made sacred'. There is no indication in
this text to warrant a departure from the primary meaning of la taqtulu, which must therefore prevail.
The primary meaning of nahy may be abandoned for a figurative meaning if there is an indication to
justify this. Hence the phrase la tu'akhidhna (`condemn us not') implies supplication, as the demand
here is addressed to Almighty God, and is hence a demand from a position of inferiority, which
indicates that the correct meaning of nahy in this context is supplication, or du'a.
110;Badran, Usul, pp. 366-368; Hitu, Wajiz, p. 150.]
III. Value of Legal Injunctions
[15. Shawkani, Irshad, pp.109-
The object of a prohibition may be to prevent an act such as adultery (zina), or it may be to prevent the
utterance of words such as those purporting to effect the sale of dead corpses, or of a freeman, by means
of offer and acceptance. In either case, the prohibition does not produce any rights or legal effects
whatsoever. Hence no right of paternity is established through zina; on the contrary, the perpetrator is
Principles of Islamic Jurisprudence ~
Kamali 135
liable to punishment. Similarly, no contract is concluded and no right of ownership is proven as a result
of the sale of a corpse.
If the object of prohibition is an act, and it is prohibited owing to an extraneous attribute rather than the
essence of the act itself, such as fasting on the day of `id, then the act is null and void (batil) according
to the Shafi`is but is irregular (fasid) according to the Hanafis, The act, in other words, can produce no
legal result according to the Shafi`is, but does create legal consequences according to the Hanafis,
although it is basically sinful. The Hanafis consider such acts to be defective and must be dissolved by
means of annulment (faskh), or must be rectified if possible. If the prohibition consists of words such as
concluding a contract of sale which partakes in usury, it is still batil according to the Shafi'is but fasid
according to the Hanafis, which means that it should be either revoked or amended to the extent that it
is purified of its usurious content.
The position is, however, different with regard to devotional matters (`ibadat) whose purpose is seeking
the pleasure of God. The fasid in this area is equivalent to batil. Hence there is no merit to be gained by
fasting on the day of id, nor will it be taken into account in compensation to the fasting owed by the
mukallaf.
But if the prohibition is due to an external factor such as a sale concluded at the time of the Friday
prayer, or when salah is performed in usurped land (al-ard al-maghsubah), the ulema are generally in
agreement that all the legal consequences will follow from the prohibited act, although the perpetrator
would have incurred a sin. Thus the sale so concluded will prove the right of ownership and the salah is
valid and no compensatory performance of the same salah will be required.
p. 369.]
[16. Shawkani, Irshad, p.110; Badran, Usul,
 Further detail on the fasid and batil can be found in our discussion of the ahkam, which is the
subject of a separate chapter.
As for the question of whether a prohibition requires both immediate as well as repeated compliance,
the ulema are generally in agreement that it does and that this is the only way a prohibition can be
observed. Unless the object of a prohibition is avoided at all times, the prohibition is basically not
observed. It is therefore necessary to avoid the prohibited act as from the moment it is issued and
whenever it is applicable. This is the case with regard to prohibitions that are not qualified in any way,
such as the Qur'anic text concerning the property of the orphans which provides: 'Do not approach [la
taqrabu] the property of the orphan except in the way that is best' (al-An'am, 6:152). However if a
prohibition is qualified by a condition that overrules immediate compliance, then it has to be observed
within the meaning of that condition. An example of this occurs in the Qur'an (al-Mumtahinah, 60:10)
which reads, in an address to the believers: 'When there come to you believing women refugees,
examine [and test] them. God knows best as to their faith. If you find that they are believers, then send
them not back to the unbelievers.' In this ayah, the prohibition (not to send them back) is conditional
upon finding that they are believers, and until then the prohibition must remain in abeyance.
Principles of Islamic Jurisprudence ~
[17. Badran, Usul,Kamali 136
p.370.]
 There is a difference between a command and a prohibition in that the purpose of the former is to
create something or to establish the existence of something, and this is realized by a single instance of
execution, and there is basically no need for repetition. A prohibition on the other hand aims at the
absence of something, and this cannot be realized unless it is absent all the time. A single instance of
absence is thus not enough to fulfill the purpose of a prohibition.
[18. Hitu, Wajiz, p.151.]
As already stated, a command which succeeds a prohibition conveys permissibility only. The position is
once again different with regard to a prohibition: whenever a prohibition succeeds a command, it
conveys illegality or tahrim, not a mere permissibility.
[19. Hitu, Wajiz, p.151.]
Injunctions, whether occurring in the Qur'an or the Sunnah, are of two types: explicit (sarih) and
implicit (ghayr sarih). Explicit commands and prohibitions require total obedience without any
allowance for individual circumstances and regardless as to whether they are found to be rational or not.
For it is in the essence of devotion (ibadah) that obedience does not depend on the rationality or
otherwise of an injunction. The question arises as to whether one should adopt a literal approach to the
enforcement of commands and prohibitions, or should allow considerations of rationality and maslahah
to play a part in the manner of their implementation. For example, the Hadith which provides that the
owners of livestock must give `one in forty sheep' in zakah
159.]
[20. Abu Dawud, Sunan, II, 410, Hadith no.1567;Ghazali, Mustasfa,
: should this provision be followed literally, or could we say that the equivalent price of one or many
sheep could also be given in zakah? Similarly, when the Qur'an enjoins the Muslims concerning
attendance at the Friday congregational prayers to `rush to the remembrance of God and abandon sale'
(al-Jumu'ah, 62:9), should the word rush (fa's aw) be taken literally or in the sense of an emphasis on
diligence at attending the Friday prayers? A similar question can be raised with regard to the second
part of the same ayah which commands the Muslims to 'abandon sale' (wa dharu'l-bay'). Should this be
taken to imply that a sale which has occurred at the specified time is actually unlawful and void, or
should it once again be taken as an order that requires perseverance and consistent observance? Should
one follow the main objective of the Lawgiver or the literal requirements of the text which convey a
command or a prohibition? These are but some of the questions which are asked concerning the correct
understanding of Qur'anic injunctions.
[21. For a detailed treatment of commands and prohibitions see Shatibi, Muwafaqat, III, 90-140]
The implicit injunctions are also divided into two types. The first of these is when a ruling of the Qur'an
is conveyed in implicit terms but has been substantiated by the explicit terms of the Hadith, in which
case it becomes equivalent to an explicit ruling.
[22. Shatibi, Muwafaqat, III, 92.]
 The second type of implicit
injunction is when a ruling of the Qur'an occurs, not in the form of a command or a prohibition, but as
praise or condemnation of a certain conduct. The precise import of such provisions cannot always be
ascertained as to whether they convey an injunction or a mere warning or recommendation as the case
may be. Note for example the text which reads that `God does not love the prodigals (al-musrifin)' (alA'raf,
7:31). The text of this ayah
does not indicate the precise legal or religious enormity of
extravagance,
and it cannot be ascertained whether extravagance is prohibited or merely disapproved.
Principles of Islamic Jurisprudence ~
Kamali 137
Another question which merits attention in the study of commands and prohibitions is related to the
means that lead to the performance of a command, or the avoidance of a prohibition. The question is
whether the means should also be covered by the rules which regulate their ends. Briefly, the answer to
this question is in the affirmative. The means which lead to the observance of commands and
prohibitions are covered by the same ruling which applies to the command/prohibition in the first place.
[23. Shatibi, Muwafaqat, 93.]
A mujtahid who deduces the law from a given text must be adequately familiar with the language of the
Qur'an and must know that the ahkam are not only expressed in the imperative but that a praise or a
promise of reward may in effect be equivalent to a command. Similarly, a mere denunciation, a threat
of punishment in the hereafter, or a reference to the adverse consequences of a form of conduct, may be
equivalent to a prohibition.
[24. Abu Zahrah, Usul, p.72.]
 The distinction as to whether a command in the Qur'an
conveys an obligation (wujub), a recommendation (nadb) or mere permissibility (ibahah) must be
determined in the light of the objectives of the Shari'ah as well as by looking at the meaning of the
words of the Qur'an. To determine the value (hukm) of a command, attention is paid not only to the
grammatical form of the words in which it is conveyed, but also to the general objectives of the law.
This is equally true of a prohibitory text. To determine whether a prohibition conveys actual tahrim, or
mere reprehension (karahah) is not always easily understood from the words of the nusus. Only a
portion of the nusus convey a precise meaning by virtue of clarity of their language. In Shatibi's
estimation, a much larger portion of the nusus of the Qur'an cannot be determined by reference only to
the linguistic forms in which they are expressed. The mujtahid must therefore be fully informed of the
general principles and objectives of the Shari'ah so as to be able to determine the precise values of the
nusus and the commands or prohibitions that they contain.
[25. Shatibi, Muwafaqat, III, 90.]
Principles of Islamic Jurisprudence ~
Kamali 138
Chapter Seven: Naskh (Abrogation)
Literally, naskh means 'obliteration', such as in nasakhat al-rih athar al-mashy, meaning 'the wind
obliterated the footprint'. Naskh also means transcription or transfer (al-naql wa al-tahwil) of something
from one state to another while its essence remains unchanged. In this sense, 'naskh' has been used in
the Qur'anic ayah which reads: inna kunna nastansikhu ma kuntum ta'malun, that is, 'verily We write all
that you do' (al-Jathiyah, 45:29). This usage of naskh can also be seen in the familiar Arabic
expressions, tanasukh al-arwah (reincarnation), and tanasukh al-mawarith, the transfer of inheritance
from persons to persons. The ulema have differed as to which of these two meanings of naskh is the
literal (haqiqi) as opposed to that which might be metaphorical (majazi). Some ulema, including Abu
Bakr al-Baqillani and al-Ghazali, have held that 'naskh' is a homonym and applies equally to either of
its two meanings. According to the majority view, however, obliteration (al-raf wa al-izalah) is the
primary, and transcription/transfer is the secondary, meaning of naskh.
102ff; Hitu, Wajiz, p.241.]
 [1. Ghazali, Mustasfa, I, 69; Amidi, ahkam, III,
Naskh may be defined as the suspension or replacement of one Shari'ah ruling by another, provided that
the latter is of a subsequent origin, and that the two rulings are enacted separately from one another.
According to this definition, naskh operates with regard to the rules of Shari'ah only, a proviso which
precludes the application of naskh to rules that are founded in rationality (aql) alone. The hukm, or
ruling, in this definition not only includes commands and prohibitions but also the three intermediate
categories of recommended, reprehensible and mubah. The requirement that the two rulings must be
separate means that each must be enacted in a separate text. For when they both occur in one and the
same passage, it is likely that one complements or qualifies the other, or that one may embody a
condition or an exception to the other.
 [2. Badran, Usul, p. 442.]
Abrogation applies almost exclusively to the Qur'an and the Sunnah; its application to ijma` and qiyas,
as will later be explained, has been generally overruled. And even then, the application of naskh to the
Qur'an and Sunnah is confined, in terms of time, to one period only, which is the lifetime of the
Prophet. There is, in other words, no naskh after the demise of the Prophet. But during his lifetime,
there were instances when some of the rulings of the Qur'an and Sunnah were either totally or partially
repealed by subsequent rulings. This was due mainly to the change of circumstances in the life of the
community and the fact that the revelation of the Qur'an spanned a period of twenty-three years. The
ulema are unanimous on the occurrence of naskh in the Sunnah. It is, however, with regard to the
occurrence of naskh in the Qur'an on which there is some disagreement both in principle as well as on
the number of instances in which naskh is said to have occurred.
[3. Khallaf, Ilm, p. 222; Abu Zahrah, Usul, p.148.]
Principles of Islamic Jurisprudence ~
Kamali 139
Abrogation is by and large a Madinese phenomenon which occurred as a result of the changes that the
Muslim community encountered following the Prophet's migration to Madinah. Certain rules were
introduced, at the early stage of the advent of Islam, which were designed to win over the hearts of the
people. An example of this is the number of daily prayers which was initially fixed at two but was later
increased to five. Similarly, mut`ah, or temporary marriage, was initially permitted but was
subsequently prohibited when the Prophet migrated to Madinah.
[4. Shatibi, Muwafaqat, III, 63; Badran, Usul, p. 447.]
These and similar changes were effected in the nusus at a time when the Muslim community acquired
sovereign authority and fresh legislation was deemed necessary to regulate its life in the new
environment of Madinah.
Some Hanafi and Mu'tazili scholars have held the view that ijma can abrogate a ruling of the Qur'an or
the Sunnah. The proponents of this view have claimed that it was due to ijma` that `Umar b. al-Khattab
discontinued the share of the mu'allafah al-qulub in the zakah. These were persons of influence whose
friendship and co-operation was deemed to be beneficial to Islam.
[5. Taj, Siyasah, p.14.]
 The Qur'an assigned
them a share in zakah (al-Tawbah, 9:60), but this was discontinued apparently because the mujtahidun
of the time reached a unanimous agreement to that effect. The correct view, however, is that owing to
differences of opinion that are recorded on this matter, no ijma` could be claimed to have
materialized.
[6. Badran, Usul, p.458.]
 Besides, the majority of ulema have held that ijma` neither abrogates nor
can be abrogated itself; and at any rate ijma cannot abrogate a nass of the Qur'an or the Sunnah. For a
valid ijma' may never be concluded in contradiction to the Qur'an or the Sunnah in the first place. AlAmidi
elaborates this as follows: the hukm
which
the ijma`
seeks
to repeal might be founded in a nass,
another
ijma,
or qiyas.
The first is not possible, for the ijma`
which
seeks to abrogate the nass
of Qur'an
or
Sunnah
is either based on an indication (dalil)
or not. If it is not based on any dalil,
then it is likely to
be
erroneous, and if it is based on a dalil
this
could either be a nass
or
qiyas.
If the basis (sanad)
of
ijma`
is
a qiyas,
then abrogation is not permissible (as we shall explain later); and if the sanad
of ijma`
is
a nass,
then abrogation is by that nass,
not by ijma`.
The share of the mu'allafah
al-qulub was
discontinued
by Umar b. al-Khattab on the grounds of the Shari'ah-oriented
policy (al-siyasah
alshar`iyyah),
which is explained in the caliph's widely-quoted phrase that `God has exalted Islam, which
is
no longer in need of their favor.'
[7. Amidi, Ihkam, III, 161; Taj, Siyasah, p. 28.]
According to the general rule a Qur'anic nass or a Mutawatir Hadith cannot be abrogated by a weaker
Hadith, by ijma' or by qiyas. For they are not of equal authority to the nass. This is, in fact, the main
argument in support of the rule, already referred to, that no abrogation of the nusus is possible after the
demise of the Prophet, for the Qur'an and the Sunnah ceased to be revealed with his demise. Since
nothing weaker than the Qur'an and Sunnah can abrogate anything in either of these sources,
abrogation, to all intents and purposes, came to an end with the death of the Prophet. Ijma`, qiyas and
ijtihad, being weaker in comparison to the nusus, cannot abrogate the rules of divine revelations.
Ilm, p. 228.]
Principles of Islamic Jurisprudence ~
[8. Khallaf,Kamali 140
It is in view of these and similar considerations that the ulema have arrived at the general rule that ijma'
can neither abrogate anything nor be abrogated itself. Abrogation in other words is generally not
relevant to ijma`. The preferable view, however, is that ijma' cannot abrogate the rulings of the Qur'an,
the Sunnah, or of another ijma' which is founded in the Qur'an, Sunnah, or qiyas. However, a
subsequent ijma' may abrogate an existing ijma` which might be founded in considerations of public
interest, or maslahah mursalah. This would in theory appear to be the only situation a which ijma`
could operate as an abrogator.
[9. Badran, Usul, p. 459.]
And finally, since the principal function of qiyas is to extend the rulings of the Qur'an and Sunnah to
similar cases, it may never operate in the opposite direction, namely, to repeal a text of the Qur'an or
Sunnah. Broadly speaking, qiyas has no place in the theory of naskh: qiyas cannot be an abrogator,
basically because it is weaker than the nass and ijma and thus cannot abrogate either. Nor can qiyas
itself be abrogated, for qiyas is normally based on a textual ruling and is bound to remain valid for as
long as the original text remains valid. It is thus inconceivable that a qiyas be abrogated while the text
to which it is founded remains in force. Furthermore, an established analogy is not exactly abrogated by
a subsequent analogy. If the first analogy is based on the Qur'an, or Sunnah, then a conflicting analogy
would presumably be erroneous. Besides, the two analogies can coexist and be counted as two ijtihadi
opinions without the one necessarily abrogating the other. For the rule concerning ijtihad is that the
mujtahid deserves a reward for his effort even if his ijtihad is incorrect. In short, naskh basically applies
to binding proofs, and qiyas is not one of them.
[10. Amidi, Ihkam, III, 163ff; Badran, Usul, p. 459.]
In his Risalah, Imam Shafi'i has maintained the view that naskh is not a form of annulment (ilgha'); it is
rather a suspension or termination of one ruling by another. Naskh in this sense is a form of explanation
(bayan) which does not entail a total rejection of the original ruling.
[11. Shafi'i, Risalah, p. 103, Abu Zahrah, Usul, p. 148.]
Naskh is explanatory in the sense that it tells us of the termination of a particular ruling, the manner and
the time of its termination, whether the whole of a ruling or only a part of it is terminated, and of
course, the new ruling which is to take its place. However, the majority of ulema do not accept the view
that naskh is a form of bayan. The fact that naskh terminates and puts an end to a ruling differentiates it
from bayan, and when a ruling is terminated, it cannot be explained.
There may be instances of conflict between two texts which, after scrutiny, may turn out to be apparent
rather than real, and it may be possible to reconcile them and to eliminate the conflict. One of the two
texts may be general (`amm) and the other specific (khass), in which case the rules of interpretation and
takhsis (specification) must be applied so as to eliminate the conflict as far as possible. If the two texts
cannot be so reconciled, then the one which is stronger in respect of authenticity (thubut) is to be
preferred. If, for example, there be a conflict between the Qur'an and a solitary Hadith, the latter is
weaker and must therefore give way to the Qur'an. The solitary, or Ahad, Hadith may also be abrogated
by the Mutawatir, the Mashhur, or another Ahad, which is dearer in meaning or which is supported by a
stronger chain of narration (isnad). But if the two texts happen to be equal on all of these points, then
Principles of Islamic Jurisprudence ~
Kamali 141
the prohibitory text is to be given priority over the permissive. Furthermore, in all instances of conflict,
it is essential to determine the time factor. If this can be determined, then the later in time abrogates the
earlier. The chronological sequence between the two rulings can, however, only be established by
means of reliable reports, not by rational argumentation or analogical reasoning.
Usul, p. 455.]
[12. Ghazali, Mustasfa, I, 83; Badran,
As a general rule, naskh is not applicable to the `perspicuous' texts of the Qur'an and Hadith, known as
muhkamat. A text of this nature is often worded in such a way as to preclude the possibility of repeal.
There are also certain subjects to which abrogation does not apply. Included among these are provisions
pertaining to the attributes of God, belief in the principles of the faith, and the doctrine of tawhid and
the hereafter, which could not be subjected to abrogation. Another subject is the Shari'ah of Islam itself,
which is the last of the revealed laws and can never be abrogated in its entirety.
[13. Ghazali, Mustasfa, I,72.]
 The
ulema are also in agreement that rational matters and moral truths such as the virtue of doing justice or
being good to one's parents, and vices such as the enormity of telling lies, are not changeable and are
therefore not open to abrogation. Thus a vice cannot be turned into a virtue or a virtue into a vice by the
application of naskh. Similarly the nusus of the Qur'an and Sunnah which relate the occurrence of
certain events in the past are not open to abrogation. To give an example, the following Qur'anic text is
not amenable to the application of naskh: `As for the Thamud, they were destroyed by a terrible storm,
whereas the `Ad were destroyed by a furious and violent wind' (al-Haqqah, 69:5-6). To apply naskh to
such reports would imply the attribution of lying to its source, which cannot be entertained.
p.454; Hitu, Wajiz, p. 244.]
To summarise the foregoing: no abrogation can take place unless the following conditions are satisfied.
First, that the text itself has not precluded the possibility of abrogation. An example of this is the
Qur'anic provision concerning persons who are convicted of slanderous accusation (qadhf) that they
may never be admitted as witnesses (al-Nur, 24:4). Similarly the Hadith which proclaims that `jihad
shall remain valid till the day of resurrection', obviously precludes the possibility of abrogating the
permanent validity of jihad.
[15. Abu Dawud, Sunan, II, 702, Hadith no. 2526; Abu Zahrah, Usul, p. 150.]
 Second, that the subject is
open to the possibility of repeal. Thus the attributes of God and the principles of belief, moral virtues
and rational truths, etc., are not open to abrogation. Third, that the abrogating text is of a later origin
than the abrogated. Fourth, that the two texts are of equal strength in regard to authenticity (thubut) and
meaning (dalalah). Thus a textual ruling of the Qur'an may be abrogated either by another Qur'anic text
of similar strength or by a Mutawatir Hadith, and, according to the Hanafis, even by a Mashhur Hadith,
as the latter is almost as strong as the Mutawatir. By the same token, one Mutawatir Hadith may
abrogate another. However, according to the preferred (rajih) view, neither the Qur'an nor the
Mutawatir Hadith may be abrogated by a solitary Hadith. According to Imam Shafi'i, however, the
Sunnah, whether as Mutawatir or Ahad, may not abrogate the Qur'an.
Principles of Islamic Jurisprudence ~ Kamali 142
[14. Badran, Usul,
[16. Shafi'i, Risalah, p.54; Amidi, Ihkam, III,146ff.]
Fifth, that the two texts are genuinely in conflict and can in no way be reconciled with one another. And
lastly, that the two texts are separate and are not related to one another in the sense of one being thecondition (shart), qualification (wasf) or exception (istithna') to the other. For when this is the case, the
issue is likely to be one of specification (takhsis), or qualification (taqyid) rather than abrogation.
Wajiz, p.244; Khallaf, Ilm, p. 223.]
Types of Naskh
Abrogation may either be explicit (sarih), or implicit (dimni). In the case of explicit abrogation, the
abrogating text clearly repeals one ruling and substitutes another in its place. The facts of abrogation,
including the chronological order of the two rulings, the fact that they are genuinely in conflict, and the
nature of each of the two rulings, and so forth, can be ascertained in the relevant texts. An example of
this is the Hadith which provides: `I had forbidden you from visiting the graves. Nay, visit them, for
they remind you of the hereafter.'
[18. Tabrizi, Mishkat, I, 552, Hadith no.1762; Muslim, Sahih, p.340.]
In another Hadith the Prophet is reported to have said, `I had forbidden you from storing away the
sacrificial meat because of the large crowds. You may now store it as you wish.'
Ihkam, III, 181.]
Principles of Islamic Jurisprudence ~ Kamali 143
[17. Hitu,
[19. Ghazali, Mustasfa, I, 83. Amidi,
The initial order not to store the sacrificial meat during the id festival (`id al-Adha) was given in view
of the large number of visitors who attended the festival in Madinah, where the Prophet desired that
they should be provided with necessary foodstuffs. The restriction was later removed as the
circumstances had changed. In both these examples, the text leaves no doubt as to the nature of the two
rulings and all the other relevant facts of abrogation. An example of explicit abrogation in the Qur'an is
the passage in sura al-Baqarah (2: 142-144) with regard to the change in the direction of the qiblah from
Jerusalem to the Ka'bah. The relevant text of the Qur'an as to the direction of the qiblah before and after
the new ruling is clear, and leaves no doubt with regard to the facts of abrogation and the nature of the
change which was effected thereby.
[20. Another instance of explicit naskh in the Qur'an is the passage in sura al-Anfal (8:65-66) which
encouraged the Muslims to fight the unbelievers. The passage reads as follows: 'If there be of you twenty steadfast persons, they shall overcome two hundred, and
if there be one hundred of you, they shall overcome one thousand.' The subsequent ayah reviewed these figures as follows: `Now Allah has lightened your burden
[...] if there be of you one hundred steadfast persons, they shall overcome two hundred, and if there be of you one thousand, they shall overcome two thousand.']
In the case of implicit abrogation, the abrogating text does not clarify all the relevant facts. Instead we
have a situation where the Lawgiver introduces a ruling which is in conflict with a previous ruling and
the two cannot be reconciled, while it remains somewhat doubtful whether the two rulings present a
genuine case for abrogation. An example of implicit abrogation is the ruling in sura al-Baqarah (2:180)
which permitted bequests to one's parents and relatives. This was subsequently abrogated by another
text (al-Nisa, 4:11) which entitled the legal heirs to specific shares in inheritance. Notwithstanding the
fact that the two rulings are not diametrically opposed to one another and could both be implemented in
certain cases,
[21. Shafi'i (Risalah, p. 69) has observed concerning these ayat that the abrogation of bequest to relatives by the ayah of inheritance is a
probability only, but he adds that the ulema have held that the ayah of inheritance has abrogated the ayah of bequests. On the same page, Shafi'i quotes the Hadith
that `there shall be no bequest to an heir.' It thus appears that in his view, the abrogation of bequest to legal heirs in the Qur'an is a probability which has been
confirmed and explained by this and other ahadith on the subject.]
 the majority of ulema have held that the initial ruling which
validated bequests to relatives has been abrogated by the rules of inheritance. They have held that the
ayah of inheritance prescribes specific portions for legal heirs which can be properly implemented only
if they were observed in their entirety, and that the Qur'anic scheme of inheritance is precise and selfcontained,
and any outside interference is likely to upset the individual shares as well as the overall
balance
between them. Since bequest to legal heirs is seen as a principal source of such interference it is
totally
forbidden. This analysis is substantiated by the explicit ruling of a Hadith in which the Prophet is
reported
to have said, `God has assigned a portion to all who are entitled. Hence there shall be no
bequest
to legal heirs.'

[22. Shafi'i, Risalah, p. 69; Abu Dawud, Sunan, II, 808, Hadith no. 2864; Khallaf, `Ilm, p. 224.]
Implicit abrogation has been sub-divided into two types, namely total abrogation (naskh kulli) and
partial abrogation (naskh juzi). In the case of the former, the whole of a particular nass is abrogated by
another, and a new ruling is enacted to replace it. This may be illustrated by a reference to the two
Qur'anic texts concerning the waiting period (`iddah) of widows, which was initially prescribed to be
one year but was subsequently changed to four months and ten days. The two texts are as follows:
1. Those of you who are about to die and leave widows should bequeath for their widows a year's
maintenance and residence; but if they leave the residence, you are not responsible for what
they do of themselves (al-Baqarah, 2:240).

2.
3. Those of you who die and leave widows, the latter must observe a waiting period of four
4.
months and ten days; when they have fulfilled their term, you are not responsible for what they
do of themselves (al-Baqarah, 2:234)
As can be seen, the provision concerning the waiting period of widows in the first ayah has been totally
replaced by the new ruling in the second. There is no doubt on the point that both of these rulings are
exclusively concerned with the same subject, namely, the widows. Both ayat require them to observe a
waiting period, whose length varies in each, and only one must be observed, not both. The two passages
are thus in conflict and the latter abrogates the former. But this is a case, as already noted, of an implicit
naskh, in that the two ayat do not expound, with complete clarity, all the facts of abrogation and it is not
certain whether they are genuinely in conflict, for the term `a year's maintenance and residence' in the
first ayah does not recur in the second. There is, in fact, no reference to either maintenance or residence
in the second ayah. This would, for example, introduce an element of doubt concerning whether the two
Principles of Islamic Jurisprudence ~
Kamali 144
ayat are concerned with different subjects of maintenance and `iddah respectively. There is, in other
words, a level of discrepancy which might make it possible to apply each of the two rulings to different
situations. This is not to argue against the majority view which seems to be the settled law, but merely
to explain why an abrogation of this type has been classified as implicit naskh.
Partial abrogation (naskh juz'i ) is a form of naskh in which one text is only partially abrogated by
another, while the remaining part continues to be operative. An example of this is the Qur'anic ayah of
qadhf (slanderous accusation) which has been partially repealed by the ayah of imprecation (li'an). The
two texts are as follows:
1. Those who accuse chaste women [of adultery] and then fail to bring four witnesses to prove it
shall be flogged with eighty lashes (al-Nur, 24:4).

2. Those who accuse their spouses and have no witnesses, other than their own words, to support
their claim, must take four solemn oaths in the name of God and testify that they are telling the
truth (al-Nur, 24:6).
The first ayah lays down the general rule that anyone, be it a spouse or otherwise, who accuses chaste
women of zina must produce four witnesses for proof. The second ayah provides that if the accuser
happens to be a spouse who cannot provide four witnesses and yet insists on pursuing the charge of
zina, he may take four solemn oaths to take the place of four witnesses. This is to be followed, as the
text continues, by a statement in which the husband invokes the curse of God upon himself if he tells a
lie. The ruling of the first text has thus been repealed by the second text insofar as it concerns a married
couple.
[23. Shafi'i, Risalah, p. 72; Khallaf, `Ilm, p.227.]
It will be noted that the text of the Qur'an has two distinctive features, namely, the words of the text,
and the ruling, or the hukm, that it conveys. Reading and reciting the words of the Qur'an, even if its
ruling is abrogated, still commands spiritual merit. The words are still regarded as part of the Qur'an
and salah can be performed by reciting them. It is on the basis of this distinction between the words and
the rulings of the Qur'an that naskh has once again been classified into three types. The first and the
most typical variety of abrogation is referred to as naskh al-hukm, or naskh in which the ruling alone is
abrogated while the words of the text are retained. All the examples which we have given so far of the
incidence of naskh in the Qur'an fall into this category. Thus the words of the Qur'anic text concerning
bequests to relatives (al-Baqarah, 2:180) and the one concerning the `iddah of widows (al-Baqarah, 2:
240) are still a part of the Qur'an despite the fact that they have both been abrogated. We still recite
Principles of Islamic Jurisprudence ~
Kamali 145
them as such, but do not apply the law that they convey. The other two varieties of naskh, respectively
referred to as naskh al-tilawah (sometimes as naskh al-qira'ah), that is, abrogation of the words of the
text while the ruling is retained, and naskh al-hukm wa al-tilawah, that is, abrogation of both the words
and the ruling - are rather rare and the examples which we have are not supported by conclusive
evidence. Having said this, however, we might add that, except for a minority of Mu'tazili scholars, the
ulema are generally in agreement on the occurrence of abrogation in both these forms.
An example of naskh al-tilawah is the passage which, according to a report attributed to `Umar b. alKhattab,
was a part of the Qur'an, although the passage in question does not appear in the standard text.
However
the ruling conveyed by the passage in question still represents authoritative law. The reported
version
of this text provides: `When a married man or a married woman commits zina,
their punishment
shall
be stoning as a retribution ordained by God.'
Principles of Islamic Jurisprudence ~ Kamali 146
[24. Amidi, Ihkam, III,141.]
[25. The Arabic version reads 'al-Shaykhu wa'l-shaykhatu idha zanaya farjumuhuma
albattatas nakalan min Allah.' Both Ghazali (Mustasfa, I, 80, and Amidi, Ihkam III, 141) have quoted it. 'Umar b. al-Khattab is quoted to have added: 'Had it not
been for fear of people saying that `Umar made an addition to the Qur'an, I would have added this to the text of the Qur'an']
In the event where the words of the text, and the law that they convey, are both repealed, then the text in
question is of little significance. According to a report which is attributed to the Prophet's widow,
`A'ishah, it had been revealed in the Qur'an that ten clear suckings by a child, make marriage unlawful
between that child and others who drank the same, woman's milk. Then it was abrogated and substituted
by five suckings and it was then that the Messenger of God died. The initial ruling which required ten
suckings was read into the text of the Qur'an. The ruling was then repealed and the words in which it
was conveyed were also omitted from the text. However since neither of these reports is established by
tawatur, they are not included in the Qur'an. The position now, according to the majority of ulema, is
that either five clear suckings, or any amount which reaches the stomach, even if it be one large
sucking, constitutes the grounds of prohibition.
[26. Amidi, Ihkam, IV, 154; Ghazali, Mustasfa, I, 80; Denffer `Ulum, p. 108.]
According to the majority (jumhur) view, the Qur'an and the Sunnah may be abrogated by themselves
or by one another. In this sense, abrogation may be once again classified into the following varieties:
(1) Abrogation of the Qur'an by the Qur'an, which has already been illustrated. (2) Abrogation of the
Sunnah by the Sunnah. This too has been illustrated by the two ahadith which we quoted under the
rubric of explicit abrogation. (3) Abrogation of the Qur'an by Sunnah. An example of this is the ayah of
bequest in sura al-Baqarah (2:180) which has been abrogated by the Hadith which provides that `there
shall be no bequest to an heir'. It is generally agreed that `the Qur'an itself does not abrogate the ayah of
bequest and there remains little doubt that it has been abrogated by the Sunnah'.
Qadri, Islamic Jurisprudence, p. 230.]
[27. Hitu, Wajiz, p. 252. See also
 (4) Abrogation of the Sunnah by the Qur'an. An example of this is the initial
ruling of the Prophet which determined the qiblah in the direction of Jerusalem. When the Prophet
migrated to Madinah, he ordered the believers to pray in the direction of Jerusalem. This was later
repealed by the Qur'an (al-Baqarah, 2:144) which ordered the Muslims to turn their faces toward the
holy mosque of the Ka'bah.
[28. Hitu, Wajiz, p. 252. See also Qadri, Islamic Jurisprudence, p. 230.]
 The Qur'an, in other words,
abrogated a practice that was initially authorised by the Sunnah.The main exception to the foregoing classification of naskh is taken by Imam Shafi'i, the majority of the
Mu'tazilah, and Ahmad b. Hanbal (according to one of two variant reports), who have validated the first
two types of abrogation, but have overruled the validity of the remaining two. In their view, abrogation
of the Qur'an by the Sunnah and vice versa is not valid.
[29. Amidi, Ihkam, III,153]
 This is the conclusion that alShafi'i
has drawn from his interpretation of a number of Qur'anic ayat
where it is indicated that the
Qur'an
can only be abrogated by the Qur'an itself.
[30. Shafi'i, Risalah, p.54ff; Amidi, Ihkam, III,156ff.]
 Thus we read in
sura al-Nahl (16:101):
And when We substitute one ayah in place of another ayah [ayatun makana ayatin],
and God knows best what He reveals.
This text, according to al-Shafi`i, is self-evident on the point that an ayah of the Qur'an can only be
abrogated or replaced by another ayah. The fact that the ayah occurs twice in this text provides
conclusive evidence that the Qur'an may not be abrogated by the Sunnah. In another place, the Qur'an
reads:
None of our revelations do We abrogate [ma nansakh min ayatin] or cause to be
forgotten unless We substitute for them something better or similar (at-Baqarah,2:106).
The text in this ayah is once again clear on the point that in the matter of naskh, the Qur'an refers only
to itself. The Qur'an, in other words, is self-contained in regard to naskh, and this precludes the
possibility of it being abrogated by the Sunnah. Naskh in the Qur'an, according to al-Shafi'i, is a wholly
internal phenomenon, and there is no evidence in the Qur'an to suggest that it can be abrogated by the
Sunnah. Indeed the Qur'an asks the Prophet to declare that he himself cannot change any part of the
Qur'an. This is the purport of the text in sura Yunus (10:1 5) which provides: `Say: it is not for me to
change it of my own accord. I only follow what is revealed to me.' It is thus not within the Prophet's
terms of reference to abrogate the Qur'an at his own initiative. 'The Sunnah in principle', writes alShafi`i,
'follows, substantiates, and clarifies the Qur'an; it does not seek to abrogate the Book of God'.
Shafi'i, Risalah, p. 54.]
 All this al-Shafi'i adds, is reinforced in yet another passage in the Qur'an where it is
provided: 'God blots out or confirms what He pleases. With Him is the Mother of the Book' (al-Ra'd,
13: 39). The reference here is again to naskh and the source in which it originates is the Mother of the
Book, that, is the Qur'an itself. The Sunnah, even the Mutawatir Sunnah, may not abrogate the Qur'an.
AI-Shafi'i is equally categorical on the other limb of this theory, namely that the Qur'an does not
abrogate the Sunnah either. Only the Sunnah can abrogate the Sunnah: Mutawatir by Mutawatir and
Principles of Islamic Jurisprudence ~
[31. Kamali 147
Ahad by Ahad. Mutawatir may abrogate the Ahad, but there is some disagreement on whether the Ahad
can abrogate the Mutawatir. According to the preferred view, which is also held by al-Shafi'i, the Ahad,
however, can abrogate the Mutawatir. To illustrate this, al-Shafi'i refers to the incident when the
congregation of worshippers at the mosque of Quba' were informed by a single person (khabar alwahid)
of the change of the direction of the qiblah
from Jerusalem to the Ka'bah; they acted upon it and
turned
their faces toward the Ka'bah. The fact that Jerusalem was the qiblah
had been established by
continuous,
or mutawatir,
Sunnah,
but the congregation of Companions accepted the solitary report as
the
abrogater of Mutawatir.
[32. Shafi'i, Risalah, p.177; Ghazali, Mustasfa, I, 81.]
Al-Shafi'i elaborates his doctrine further. If there existed any occasion for the Sunnah to abrogate the
Qur'an or vice versa, the Prophet would be the first to say so. Thus in all cases where such an
abrogation is warranted, there is bound to be a Sunnah of the Prophet to that effect, in which case the
matter automatically becomes a part of the Sunnah. The Sunnah in other words is self-contained, and
covers all possible cases of conflict and abrogation of the Qur'an by the Sunnah and vice versa. If any
Sunnah is meant to be abrogated, the Prophet himself would do it by virtue of another Sunnah, hence
there is no case for the abrogation of Sunnah by the Qur'an.
[33. Shafi'i, Risalah, p. 102.]
Al-Shafi'i considers it necessary for the abrogation of Sunnah that the Prophet should have informed the
people specifically about it. If the Qur'an were to abrogate the Sunnah, while the Prophet has not
indicated such to be the case, then, to give an example, all the varieties of sale which the Prophet had
banned prior to the revelation of the Qur'anic ayah on the legality of sale (al-Baqarah, 2:275) would be
rendered lawful with the revelation of this ayah. Similarly, the punishment of stoning for zina which is
authorised by the Prophet would be deemed abrogated by the variant ruling of one hundred lashes in
sura al-Nur (24:2). In the case of theft, too, the Prophet did not punish anyone for theft below the value
of one-quarter of a dinar, nor did he apply the prescribed punishment to the theft of unguarded (ghayr
muhraz) property. These would all be deemed abrogated following the revelation of the ayah in sura alMa'idah
(5:83) which prescribes mutilation of the hand for theft without any qualification whatsoever.
If
we were to open this process, it would be likely to give rise to unwarranted claims of conflict and a
fear
of departure from the Sunnah.
[34. Shafi'i, Risalah, pp. 57-58. In raising the fear of departure from the Sunnah, Shafi'i was probably
thinking of the doubts that would arise with regard to establishing the precise chronological order between the Qur'an and Sunnah in all possible cases of conflict.
Since the Qur'an is generally authentic, any doubts of this nature are likely to undermine the Sunnah more than the Qur’an.]
Notwithstanding the strong case that al-Shafi'i has made in support of his doctrine, the majority opinion,
which admits abrogation of the Qur'an and Sunnah by one another is preferable, as it is based on the
factual evidence of having actually taken place. AI-Ghazali is representative of the majority opinion on
this when he writes that identity of source (tajanus) is not necessary in naskh. The Qur'an and Sunnah
may abrogate one another as they issue both from the same provenance. While referring to al-Shafi'i's
doctrine, al-Ghazali comments: `how can we sustain this in the face of the evidence that the Qur'an
never validated Jerusalem as the qiblah; it was validated by the Sunnah, but its abrogating text occurs in
Principles of Islamic Jurisprudence ~
Kamali 148
the Qur'an? Likewise, the fasting of `Ashura' was abrogated by the Qur'anic provision concerning the
fasting of Ramadan while the former was only established by the Sunnah. Furthermore, the Qur'anic
ayah which permitted conjugal intercourse at night-time in Ramadan (al-Baqarah, 2:178) abrogated the
prohibition that the Sunnah had previously imposed on conjugal relations during Ramadan'.
Mustasfa, I, 81; see also Amidi, Ihkam, III, 150ff.]
Abrogation, Specification (Takhsis) and Addition (Taz'id)
Naskh and takhsis resemble one another in that both tend to qualify or specify an original ruling in some
way. This is particularly true, perhaps, of partial naskh, which really amounts to qualification /
specification rather than repeal. We have already noted al-Shafi'i's perception of naskh which draws
close to the idea of the coexistence of two rulings and an explanation of one by the other. A certain
amount of confusion has also arisen between naskh and takhsis due to conceptual differences between
the Hanafis and the majority of ulema regarding naskh in that they tend to view naskh differently from
one another. These differences of perspective have, however, been treated more pertinently in our
discussion of the Amm and the Khass. In this section, we shall outline the basic differences between
naskh and takhsis without attempting to expound the differences between the various schools on the
subject.
Naskh and takhsis differ from one another in that there is no real conflict in takhsis. The two texts,
namely the general text and the specifying text, in effect complement one another. This is not, however,
the case with naskh, in which it is necessary that the two rulings are genuinely in conflict and that they
could not coexist. Another difference between naskh and takhsis is that naskh can occur in respect of
either a general or a specific ruling whereas takhsis can, by definition, occur in respect of a general
ruling only.
[36. Ghazali, Mustasfa, I,71; Badran, Usul, p.452.]
As already stated, naskh is basically confined to the Qur'an and Sunnah and could only be effected by
the explicit rulings of divine revelation. Takhsis on the other hand could also occur by means of
rationality and circumstantial evidence. Naskh, in other words, can only occur by shar' whereas takhsis
can occur by rationality (`aql ), custom (`urf) and other rational proofs. It would follow from this that
takhsis (i.e. the specification or qualification of a general text) is possible by means of speculative
evidence such as qiyas and solitary Hadith. But in the case of naskh, a definitive ruling, that is, a qat'i,
can only be abrogated by another qat'i ruling. Abrogation, in other words, is basically not operative
with regard to speculative rulings.
[37. Amidi, Ihkam, III, 113; Badran, Usul, p.453.]
Principles of Islamic Jurisprudence ~
[35. Ghazali, Kamali 149
As already stated, in naskh it is essential that the abrogator (al-nasikh) be later in time than the ruling
which it seeks to abrogate. There can be no naskh if this order is reversed, nor even when the two
rulings are known to have been simultaneous. But this is not a requirement of takhsis. With regard to
takhsis, the Hanafis maintain that the 'Amm and the Khass must in fact be either simultaneous or
parallel in time. But according to the majority, the `Amm, and the Khass, can precede or succeed one
another and they need not be in any particular chronological order.
Lastly, naskh does not apply to factual reports of events (akhbar) whereas takhsis could occur in regard
to factual reports. Thus a news report may be specified or qualified, but cannot be abrogated. The
closest concept to abrogation in regard to reports is that they can be denied.
Another issue which arises concerning naskh is whether a subsequent addition (taz'id) to an existing
text, which may be at variance with it, amounts to its abrogation. When new materials are added to an
existing law, the added materials may fall into one of the following two categories: (1) The addition
may be independent of the original text but relate to the same subject, such as adding a sixth salah to
the existing five. Does this amount to the abrogation of the original ruling? The majority of ulema have
answered this question in the negative, holding that the new addition does not overrule the existing law
but merely adds a new element to it. (2) The new addition may not be independent of the original text in
that it may be dealing with something that constitutes an integral part of the original ruling. A
hypothetical example of this would be to add another unit (rak'ah), or an additional prostration (sajdah)
to one or more of the existing obligatory prayers. Another example would be to add to the existing
requirement of releasing a slave in expiation for breaking the fast, a new condition that the slave has to
be a Muslim. Does this kind of addition amount to the abrogation of the existing law? The ulema have
differed on this, but once again the majority have held the view that it does not amount to abrogation as
it does not seek to overrule the original text. The Hanafis have held, however, that such an addition
does amount to abrogation. It is on this ground that the Hanafis have considered the ruling of the Ahad
Hadith on the admissibility of one witness plus a solemn oath by the claimant to be abrogating the
Qur'anic text which enacts two witnesses as standard legal proof (al-Baqarah, 2:282). The abrogation,
however, does not occur, not because the Hanafis consider the new addition to be immaterial, but
because the Ahad cannot repeal the Mutawatir of the Qur'an.
[38. Amidi, Ihkam, III,170; Hitu, Wajiz, p.256.]
 The
majority opinion does not regard this to be a case for abrogation. For the Qur'anic text on the
requirement of two witnesses does not preclude the possibility of proof by other methods. Since the
original Qur'anic text does not impose an obligatory command, it leaves open the possibility of recourse
to alternative methods of proof.
The Argument Against Naskh
[39. Amidi, Ihkam, III, 175; Hitu, Wajiz, p. 257.]
Principles of Islamic Jurisprudence ~
 Kamali 150
As already stated, the ulema are not unanimous over the occurrence of naskh in the Qur'an. While alSuyuti
has claimed, in his Itqan
fi `Ulum al-Qur'an,
twenty-one instances of naskh
in the Qur'an, Shah
Wali
Allah (d. 1762) has only retained five of al-Suyuti's twenty-one cases as genuine, stating that the
rest
can all be reconciled.
[40. Subhi al-Salih (Mabahith, p.280) records the view that only ten of al-Suyuti's twenty-one instances of naskh in the
Quran are genuine and that all the rest can be reconciled.]
 Another scholar, Abu Muslim al-1sfahani (d. 934) has, on the
other hand, denied the incidence of abrogation in the Qur'an altogether.
110.]
[41. Abu Zahrah, Usul, p.155; Denffer, 'Ulum, p.
 The majority of ulema have nevertheless acknowledged the incidence of naskh in the Qur'an on the
authority of the Qur'an itself. This is the conclusion that the majority have drawn from the relevant
Qur'anic passages. However, it will be noted that the counter-argument is also based on the same
Qur'anic passages which have been quoted in support of naskh. The following two ayat need to be
quoted again:
None of our revelations do We abrogate nor cause to be forgotten unless We substitute
for them something better or similar [ma nansakh min ayatin aw nunsiha na'ti bikhayrin
minha aw mithliha]
(al-Baqarah, 2:106).
Elsewhere we read in sura al-Nahl (16:106):
When We substitute one revelation for another, and God knows best what He reveals
[wa idha baddalna ayatan makana ayatin wa' Llahu a'lam bima yunazzil].
To some commentators, the word 'ayah' to these passages refers, not to the text of the Qur'an itself, but
to previous scriptures including the Torah and the Gospel. An interpretation of this type would, of
course, render the ayah under discussion irrelevant to the occurrence of naskh in the Qur'an. Abu
Muslim al-Isfahani, a Mu'tazili scholar and author of a Qur'an commentary (Jami al-Ta'wil), has held
the view that all instances of so-called abrogation in the Qur'an are in effect no more than qualifications
and takhsis of one text by another.
[42. Subhi al-Salih, Mabahith, p.274.]
 To al-Isfahani, the word 'ayah' in these
passages means not a portion of the Qur'anic text, but 'miracle'. To read this meaning in the first of the
two passages quoted above would imply that God empowered each of His Messengers with miracles
that none other possessed; that God provided each of His Messengers with superior miracles, one better
than the other. That this is the correct meaning of the text is substantiated, al-Isfahani adds, by the
subsequent portion of the same passage (i.e. al-Baqarah, 2:106) which reads: 'Do you not know that
God is all-powerful?' (`ala kulli shay'in qadir). Thus this particular attribute of God relates more
appropriately in this context to the subject of miracles rather than abrogation of one ayah by another.
This interpretation finds further support in yet another portion of the same passage (i.e. 2:108) which
Principles of Islamic Jurisprudence ~
Kamali 151
provides in an address to the Muslim community: `Would you want to question your Prophet as Moses
was questioned before?' It is then explained that Moses was questioned by the Bani Isra'il regarding his
miracles, not the abrogation as such?
[43. Amidi, Ihkam, III, 120.]
 The word `ayah', in the second passage (i.e. alNahl,
16:101) too means 'miracle'. For after all, 'ayah'
literally means 'sign' and a miracle is a sign. AIIsfahani
further argues: Naskh
is equivalent to ibtal,
that is, 'falsification' or rendering something
invalid,
and ibtal
as
such has no place in the Qur'an. This is what we learn from the Qur'an itself which
reads
in sura Ha-Mim (41:42): 'No falsehood can approach it [the Book] from any direction [la
ya'tihi
al-batil
min bayn yadayhi wa la min khalfih].'
In response to this, however, it is said that naskh
a not
identical
with ibtal;
that naskh
for all intents and purposes means suspension of a textual ruling, while
the
words of the text are often retained and not nullified.
[44. Amidi, Ihkam, III, 124.]
Two other points that al-Isfahani has added to his interpretation are as follows. Supposing that the
passages under consideration do mean abrogation, even then they do not confirm the actual occurrence
of naskh but merely the possibility of it, and there is a difference between the two. Lastly, al-Isfahani
maintains that all instances of conflict in the Qur'an are apparent rather than real, and can be reconciled
and removed. This, he adds, is only logical of the Shari'ah, which is meant to be for all times; this is
just another way of saying that it is not open to abrogation.
[45. Abu Zahrah, Usul, p.155; Badran, Usul, p.448.]
Having explained al-Isfahani's refutation of the theory of naskh, it remains to be said that according to
the majority of ulema, the occurrence of naskh in the Qur'an is proven, although not in so many
instances as has often been claimed. The proponents of naskh have stated that the incidence of naskh in
the Qur'an is proven, not only by the Qur'an itself, but also by a conclusive ijma. Anyone who opposes
it is thus going against the dictates of ijma.
[46. Al-Ghazali, Mustasfa, I, 72.]
 In the face of the foregoing
disagreements, it is admittedly difficult to see the existence of a conclusive ijma' on the point. But
according to the rules of ijma`, once an ijma' is properly concluded, any subsequent differences of
opinion would not invalidate it. Divergent views such as that of al-Isfahani seem to have been treated in
this light, and almost totally ignored.
In his book The Islamic Theory of International Relations: New Directions For Islamic Methodology
and Thought (originally a doctoral dissertation), Abdul Hamid Abu Sulayman is critical of the classical
approach to naskh and calls for a fresh and comprehensive understanding `of the technique of naskh [..
.] on a systematic and conceptual basis, not a legalistic one'
[47. Abu Sulayman, The Islamic Theory, p.84.]
 The author is
of the view that the classical exposition of naskh is unnecessarily restrictive as it tends to narrow down
the 'rich Islamic and Qur'anic experience', and also indulges, in some instances at least, in a measure of
exaggeration and excess.
[48. Abu Sulayman, The Islamic Theory, p. 107.]
The author maintains that abrogation was primarily an historical, rather than juridical, phenomenon and
ought to have been read in that context. This may be part of the reason why the jurists have found it
difficult to establish the validity of abrogation by the direct evidence of the Qur'an or Sunnah. The
Principles of Islamic Jurisprudence ~
Kamali 152
argument runs that the facts of naskh in regard to, for example, the ayah of the sword, as discussed
below, were historical and were largely dictated by the prevailing pattern of relationship between
Muslims and non-Muslims at the time. Now, instead of understanding naskh as a circumstance of
history, the ulema turned it into a juridical doctrine of permanent validity. This classical concept of
permanent abrogation is oblivious of the space-time element which, if taken into account, would have
restricted the application of naskh to those circumstance alone.
[49. Abu Sulayman, The Islamic Theory, p. 73.]
The broad sweep of naskh was, however, taken so far as to invalidate a major portion of the Qur'an.
This is precisely the case with regard to the ayah of the sword (ayah al-sayf) which reads, in the
relevant part: `And fight the polytheists all together as they fight you all together, and know that God is
with those who keep their duty [to Him]' (al-Tawbah, 9:36). Influenced by the prevailing pattern of
hostile relations with non-Muslims, 'some jurists took an extreme position in interpreting this ayah,' and
claimed that it abrogated all preceding ayat pertaining to patience, tolerance and the right of others to
self-determination.
[50. Abu Sulayman, The Islamic Theory, p. 36.]
 Although scholars are not in agreement as to the exact
number of ayat that were abrogated as a result, Mustafa Abu Zayd has found that the ayah of the sword
abrogated no less than 140 ayat in the holy Book.
[51. Abu Zayd, Al-Nasikh wa al-Mansukh, I, 289 ff and II, 503 ff.]
 Jurists who
were inclined to stress the aggressive aspect of jihad could only do so by applying abrogation to a large
number of Qur'anic ayat, and 'using abrogation in this manner has, Abu Sulayman contests, `indeed
narrowed the Qur'anic experience'
 [52. Abu Sulayman, The Islamic Theory, p.36.]
 and undermined the egalitarian
substance of its teachings. In many passages the Qur'an calls for peace, compassion and forgiveness,
and promotes a set of moral values such as moderation, humility, patience and tolerance whose scope
could not be said to be confined to relations among Muslims alone.
The Muslim jurists of the second hijrah century, as al-Zuhayli informs us, considered war as the norm,
rather than the exception, in relations with non-Muslims, and they were able to do so partly because of a
certain exaggeration in the use and application of naskh. The reason behind this attitude was the need,
which was then prevalent, to be in a state of constant readiness for battle in order to protect Islam.
Wahbah al-Zuhayli, Athar al-Harb, p.130.]
 Under such political circumstances, it is not difficult to understand how
abrogation was utilised as a means by which to strengthen the morale of the Muslim in facing their
enemies.
[54. Abu Sulayman, The Islamic Theory, p.74.]
 It is to be noted further that the position of the classical jurists
which characterised war as the permanent pattern of relationship with non-Muslims, as al-Zuhayli
points out, is not binding on anyone, and is not supported by the balance of evidence in the Qur'an and
Sunnah.
[55. Al-Zuhayli, Athar al-Harb, p.135.]
It is therefore important, Abu Sulayman tells us, 'to put the concept of naskh back in proper context' and
confine its application only to clear cases, such as the change of qiblah from the direction of Jerusalem
to the Ka'bah. As for the rest, the rules and teachings of Islam are valid and applicable in unlimited
combinations as they meet the needs and benefits of mankind, in the light of the broader values and
Principles of Islamic Jurisprudence ~
Kamali 153
objectives that the Qur'an and Sunnah have upheld.
James Piscatori, in Journal of the Institute of Muslim Minority Affairs, 10.2 (July 1989), pp. 542-3.]
[56. cf. Abu Sulayman, The Islamic Theory, p. 107; cf. the review of his book byChapter Eight: Ijma' or Consensus of Opinion
It must be noted at the outset that unlike the Qur'an and Sunnah, ijma does not directly partake in divine
revelation. As a doctrine and proof of Shari'ah, ijma' is basically a rational proof. The theory of ijma' is
also clear on the point that it is a binding proof. But it seems that the very nature of this high status that
is accorded to ijma` has demanded that only an absolute and universal consensus would qualify
although absolute consensus on the rational content of ijma' has often been difficult to obtain. It is only
natural and reasonable to accept ijma` as a reality and a valid concept in a relative sense, but factual
evidence falls short of establishing the universality of ijma`. The classical definition and the essential
requirements of ijma`, as laid down by the ulema of usul, are categorical on the point that nothing less
than a universal consensus of the scholars of the Muslim community as a whole can be regarded as
conclusive ijma'. There is thus no room whatsoever for disagreement, or ikhtilaf, within the concept of
ijma'. The theory of ijma' is equally unreceptive to the idea of relativity, or a preponderance of
agreement within its ranks.
The notion of a universal ijma ` was probably inspired by the ideal of the political unity of the ummah,
and its unity in faith and tawhid, rather than total consensus on juridical matters. As evidence will show,
ijma' on particular issues, especially on matters that are open to ijtihad, is extremely difficult to prove.
Thus the gap between the theory and practice of ijma` remains a striking feature of this doctrine. A
universal ijma` can only be said to exist, as al-Shafi'i has observed, on the obligatory duties, that is, the
five pillars of the faith, and other such matters on which the Qur'an and the Sunnah are unambiguous
and decisive. However, the weakness of such an observation becomes evident when one is reminded
that ijma` is redundant in the face of a decisive ruling of the Qur'an or the Sunnah.
The Shari'ah has often been considered as `a diversity within unity'. This is true in a general sense, in
that there is unity to the essentials and in the broad outlines of the ahkam. But the same cannot be said
of the detailed rulings of the jurists. It is admittedly true to say, again in a general sense, that the ikhtilaf
of individual jurists, or of the various schools of law, are different manifestations of the same divine
will and may therefore be regarded as an essential unity. But to expect universal consensus on ijtihadi
matters is totally unrealistic, as many prominent ulema have recognised.
The gap between the theory and practice of ijma` is reflected in the difficulty that many jurists have
acknowledged to exist over implementing its theoretical requirements. The absolute terms of the
classical definition of ijma` have hardly been fulfilled by conclusive factual evidence that would
eliminate all levels of ikhtilaf. Ijma' has often been claimed for rulings on which only a majority
consensus had existed within or beyond a particular school. The proof and authenticity of ijma ` has, on
Principles of Islamic Jurisprudence ~
Kamali 155
through a reliable isnad. The only form of ijma' which has been generally upheld is that of the
Companions of the Prophet, which is partly due to their special status and not always due to their
participation and consensus. With these introductory remarks, then, we may begin to examine the
meaning and definition of ijma', and then proceed to discuss some of the issues we have raised.
Ijma` is the verbal noun of the Arabic word ajma'a, which has two meanings: to determine, and to agree
upon something. To give an example of the former, the expression ajma `a fulan `ala kadha, means `soand-so
decided upon such-and-such'. This usage of ajma`a
is
found both in the Qur'an and in the
Hadith.
[1. In the Qur'an the phrase fajma'u amrakum which occurs in sura Yunus (10:71) means 'determine your plan'. Similarly fajma'u kaydakum in sura
Taha (20:64), where the Prophet Noah addresses his estranged followers, means 'determine your trick'. The Hadith la siyama liman lam yajma'al-siyama min al-
layl means that fasting is not valid unless it is determined (or intended) in advance; i.e. from the night before. For details see Amidi, Ihkam, I, 195; Shawkani,
Irshad, p.70.]
 The other meaning of ajma'a is `unanimous agreement'. Hence the phrase ajma'a al-qawm ala
kadha means `the people reached a unanimous agreement on such-and-such'. The second meaning of
ijma` often subsumes the first, in that whenever there is a unanimous agreement on something, there is
also a decision on that matter.
Ijma` is defined as the unanimous agreement of the mujtahidun, of the Muslim community of any
period following the demise of the Prophet Muhammad on any matter.
[2. Amidi, Ihkam, I, 196, Shawkani, Irshad, p.71.
Abu Zahrah and `Abd al-Wahhab Khallaf's definition of ijma` differs with that of Amidi and Shawkani on one point, namely the subject matter of ijma `, which is
confined to shar'i matters only (see Abu Zahrah, Usul, p.156 and Khallaf, `Ilm, p. 45).]
 In this definition, the reference to the
mujtahidun precludes the agreement of laymen from the purview of ijma`. Similarly, by reference to the
mujtahidun of any period, is meant a period in which there exist a number of mujtahidun at the time an
incident occurs. Hence it would be of no account if a mujtahid or a number of mujtahidun become
available only after the occurrence of an incident The reference in the definition to any matter implies
that ijma` applies to all juridical (shar'i), intellectual (aqli), customary (urfi,) and linguistic (lughawi)
matters.
[3. Shawkani, Irshad, p.71.]
 Furthermore, shar'i, in this context is used in contradistinction to hissi, that
is, matters which are perceptible to the senses and fall beyond the scope of ijma`. Some ulema have
confined ijma' to religious, and others to shar'i matters, but the majority of ulema do not restrict ijma`
to either. Although the majority of jurists consider dogmatics (itiqadiyat) to fall within the ambit of
ijma`, some have expressed the view that ijma` may not be invoked in support of such subjects as the
existence of God or the truth of the prophet hood of Muhammad. The reason is that such beliefs precede
ijma` itself. Ijma` derives its validity from the nusus on the infallibility (`ismah) of the ummah. These
nusus, in turn, take for granted the existence of God and the Prophethood of Muhammad. Now if one
attempts to cite ijma` in support of these dogmas, this would amount to circumlocution. To illustrate the
point further, it may be said that the Qur'an cannot be proved by the Sunnah, because the Qur'an
precedes the Sunnah.
[4. According to one view, attributed to the Qadi `Abd al-Jabbar, matters pertaining to warfare, agriculture, commerce, politics
and administration are described as worldly affairs, and ijma` is no authority regarding them. One reason given in support of this view is that the Prophet himself
precluded these matters from the scope of the Sunnah and the same rule is to be applied to ijma`. Amidi, however, confirms the majority view when he adds (in his
Principles of Islamic Jurisprudence ~
Kamali 156
Ihkam, I, 284) that these restrictions do not apply to ijma'.]
 Matters of a practical type witch do not partake in the nature of
tashri` (legislation) do not constitute the proper subject of ijma`. For example, the agreement of the
Companions to send out troops to Syria or to Persia, or their agreement on setting up certain
government departments, etc., did not constitute ijma`. For these were practical decisions which were
valid in connection with particular circumstances and did not bind the succeeding generations of
Muslims. Ijma' on a shar`i ruling, on the other hand, has a quality of permanence and its validity is not
confined by a time limit.
[5. Abu Zahrah, Usul, p. 165.]
Although the theory refuses to impose any restriction on the subject-matter of ijma`, in actual terms the
application of ijma` is bound to be subject to some reservations. For example, ijma' must be of a
somewhat limited application in regard to rational and linguistic matters. To say that lying is evil, or
that `hand' also means `power', need not be supported by ijma'. In actual terms, ijma' has always been
selective in determining its own subject-matter. It was perhaps in view of the dynamic nature of ijma`
and its infallibility that the ulema were persuaded not to impose any advance reservations on its scope.
It is clear from its definition that ijma' can only occur after the demise of the Prophet. For during his
lifetime, the Prophet alone was the highest authority on Shari'ah, hence the agreement or disagreement
of others did not affect the overriding authority of the Prophet. In all probability, ijma` occurred for the
first time among the Companions in the city of Madinah. Following the demise of the Prophet, the
Companions used to consult each other over the problems they encountered, and their collective
agreement was accepted by the community. After the Companions, this leadership role passed on to the
next generation, the Successors (tabi'un) and then to the second generation of Successors. When these
latter differed on a point, they naturally referred to the views and practices of the Companions and the
Successors. In this way, a fertile ground was created for the development of the theory of ijma'.
Aghnides, Muhammedan Theories, pp. 37-38.]
 The essence of ijma` lies in the natural growth of ideas. It begins with the
personal ijtihad of individual jurists and culminates in the universal acceptance of a particular opinion
over a period of time. Differences of opinion are tolerated until a consensus emerges, and in the process
there is no room for compulsion or the imposition of ideas upon the community.
Ijma' plays a crucial role in the development of Shari'ah. The existing body of fiqh is the product of a
long process of ijtihad and ijma`. Since ijma` reflects the natural evolution and acceptance of ideas in
the life of the community, the basic notion of ijma' can never be expected to discontinue. The idea that
ijma` came to a halt after the first three generations following the advent of Islam seems to be a byproduct
of the phenomenon known as the closure of the gate of ijtihad.Since ijma' originates in ijtihad,with the closure of the gate of ijtihad, it was expected that ijma' also came to a close. This is, however, no more than a superficial equation, as in all probability ijma' continued to play a role in consolidating and unifying the law after the supposed termination of ijtihad. [7. Cf Ahmad Hasan, Early Development, p.160ff.]
Principles of Islamic Jurisprudence ~
Kamali 157
Ijma' ensures the correct interpretation of the Qur'an, the faithful understanding and transmission of the
Sunnah, and the legitimate use of ijtihad. The question as to whether the law, as contained in the divine
sources, has been properly interpreted is always open to a measure of uncertainty and doubt, especially
in regard to the deduction of new rules by way of analogy and ijtihad. Only ijma' can put an end to
doubt, and when it throws its weight behind a ruling, this becomes decisive and infallible. Ijma` has
primarily been regarded as the instrument of conservatism and of preserving the heritage of the past.
This is obvious enough in the sense that whatever is accepted by the entire Muslim community as true
and correct must be accepted as such. However, ijma` is also an instrument of tolerance and of the
evolution of ideas in such directions as may reflect the vision of the scholars to the light of the fresh
educational and cultural achievements for the community. According to one observer, `clearly this
principle (i.e. ijma`) provides Islam with a potential for freedom of movement and a capacity for
evolution. It furnishes a desirable corrective against the dead letter of personal authority. It has proved
itself, at least in the past, an outstanding factor in the adaptability of Islam.'
[8. Goldziher, Introduction, p.52.]
Ijma` enhances the authority of rules which are of speculative origin. Speculative rules do not carry a
binding force, but once an ijma `is held in their favour, they become definite and binding. Instances can
be cited, for example, where the Companions have, by their ijma', upheld the ruling of a solitary Hadith.
In such cases, the ruling in question is elevated into a binding rule of law. For example, the prohibition
concerning unlawful conjunction, that is, simultaneous marriage to the close relatives of one's wife, is a
definitive ruling which is based on ijma `, despite the fact that the basis of this ijma` is a solitary Hadith
- namely the Hadith that prohibits simultaneous marriage to the maternal or paternal aunt of one's wife.
Similarly, the grandmother is entitled to a share in inheritance, and this is a qat'i ruling of ijma` which
is based on a solitary Hadith. The Hadith in question is reported by al-Mughirah b. Shu'bah to the effect
that the Prophet assigned to the grandmother the portion of one-sixth. Ijma` has also played a role in
regard to ahadith that were not equally known to all the mujtahidun especially driving the period
preceding the collection and compilation of Hadith. It was through ijma` that some scholars were
informed of the existence of certain ahadith.
Zahrah, Usul, pp.159-161.]
[9. Muslim, Sahih, p.212, Hadith no. 817; Ibn Majah, Sunan, II, 910, Hadith no. 2724; Abu
And lastly, ijma` represents authority. Once an ijma is established it tends to become an authority in its
own right, and its roots in the primary sources are gradually weakened or even lost. It then becomes
common practice to quote the law without a reference to the relevant sources. It is partly due to the
significance of ijma` that the incentive to quote the authority tends to weaken. This is according to Shah
Wali Allah, one of the reasons which induced the jurists to recognize ijma` as the third source of the
Shari'ah.
[10. Shah Wali Allah, Qurrah, p.40.]
Essential Requirements (Arkan) of Ijma`
Principles of Islamic Jurisprudence ~
Kamali 158
Whenever an issue arises and attracts the attention of the mujtahidun of the Muslim community at the
time of its incidence, and they reach a unanimous agreement on its ruling, it is implied that the ruling so
agreed upon is the correct and authoritative ruling of the Shari'ah, provided that the following
conditions are fulfilled:
1. That there are a number of mujtahidun available at the time when the issue is encountered. For
consensus can never exist unless there is a plurality of concurrent opinion. Should there be a
situation where a plurality of mujtahidun could not be obtained, or when there is only a single
mujtahid in the community, no ijma' could be expected to materialise.
requirements of ijma' see Khallaf, `Ilm, p.45ff; Shawkani, Irshad, p.71ff.]
[11. For details on the essential

2.
3. According to the majority of ulema, unanimity is a prerequisite of ijma`. All the mujtahidun,
regardless of their locality, race, colour and school or following, must reach a consensus on a
juridical opinion at the time an issue arises. The presence of a dissenting view, even on the part
of a small minority, precludes the possibility of ijma`. If, for example, the mujtahidun of Mecca
and Madinah, or those of Iraq, or the mujtahidun of the family of the Prophet, or the Sunni
ulema without the agreement of their Shi'i counterparts agree upon a ruling, no ijma' will
materialise.

The majority of ulema maintain that lay opinion is not taken into account: in every field of
learning, only the opinion of the learned is relevant to ijma`. Al-Amidi, however, prefers the
minority view, attributed to Abu Bakr al-Baqillani and others, to the effect that ijma' includes
the agreement of both the laymen and the mujtahidun, the reason being that 'ismah, which is the
doctrinal basis of ijma `, is a grace of God bestowed on the whole of the community. It would
therefore be improper to turn the property of the entire community into a privilege of the
mujtahidun. The majority view is, however, based on the analysis that the mujtahidun, in their
capacity as the constituents of ijma`, merely represent the community, and therefore no change
is proposed in the original locus of 'ismah.
[12. Amidi, Ihkam, I, 226. Bazdawi, however, distinguishes matters which do not
require specialised knowledge from other matters, and suggests that no discrimination should be made between the layman and the jurists regarding
the essentials of the faith. Ijma` is thus confined to the mujtahidun only in regard to matters which require expert knowledge. See for details, Bazdawi,
Usul, III, 239.]

4.
5. The agreement of the mujtahidun must be demonstrated by their expressed opinion on a
particular issue. This may be verbal or in writing, such as by giving a fatwa in either of these
forms, or it may be actual, when, for example, a judge adjudicates the issue in question; or it
Principles of Islamic Jurisprudence ~
Kamali 159
may be that every mujtahid expresses an opinion, and after gathering their views, they are
found to be in agreement. Similarly the mujtahidun may give their views collectively when, for
example, the mujtahidun of the Muslim world assemble at the time an issue is encountered and
reach a consensus over its ruling.

6.
7. As a corollary of the second condition above, ijma' consists of the agreement of all the
8.
mujtahidun, and not a mere majority among them. For so long as a dissenting opinion exists,
there is the possibility that one side is in error, and no ijma' can be envisaged in that situation,
for ijma' is a decisive proof, which must be founded on certainty. However, according to Ibn
Jarir al-Tabari, Abu Bakr al-Razi, one of the two views of Ahmad Ibn Hanbal and Shah Wali
Allah, ijma' may be concluded by a majority opinion. But al-Asmidi prefers the majority view
on this point, which requires the participation of all mujtahidun.
[13. Amidi, Ihkam, I, 235.]
In regard to the rules of fiqh, it is the ijma' of the fuqaha alone which is taken into account.
Irshad, p.71.]
 The question naturally arises whether fuqaha belonging to certain factions like the Khawarij,
the Shi'ah, or those who might have been charged with heresy and bid'ah are qualified to participate in
ijma`. According to the majority view, if a faqih is known to have actively invited the people to bid'ah,
he is excluded from ijma' ;
otherwise he is included in the ranks of ahl al-ijma'.
[15. Abu Zahrah, Usul, p.162.]
 The Hanafis preclude a
transgressor (fasiq) and one who does not act upon his doctrine from being among the ahl al ijma`,
whereas the Shafi'is and some Malikis maintain that a mere transgression is no disqualification.
Ihkam, I, 261; `Abdur Rahim, Jurisprudence, p.122.]
 Some fuqaha have held that ijma` is concluded only with the
disappearance of the generation (inqirad al-'asr), that is, when the mujtahidun who took part in it have
all passed away. For if any of them is known to be alive, there would still be a possibility that he may
change his view, in which case the ijma` would collapse. A corollary of this rule is that ijma` is
retrospective, in that it only binds succeeding generations but not its own constituents.
p.164.]