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 THE PRINCIPLES OF ABROGATION WITH

SPECIAL REFERENCE TO THE USUL

OF AL-JASSÄS

BY

MOHAMMAD AKRAM

Thesis presented to the University of St. Andrews

for the Degree of Doctor of Philosophy
St. Andrews November 1986.

1;,N1yEý
ýýýCA
ýý,
ýý 9ý
'.
 -i-

DEDICATION

To my dear mother and to the memory of my late

father, I dedicate this thesis.

 -ii-

ABSTRACT

I have prepared a critical edition of the portion on a1-Näsikh

wa-1 mansukh from Usu1 al-Lass as (Usu1 al-figh), by Abu Bakr Ahmad

b. cA1i (d. 370 A. H. ). The manuscript,

a1-Razi a1-jassäs used in

this edition, is preserved under 229 Usul: Där al-Kutub al-Misriya.

I have also prepared separate notes in order to elucidate and compare

this work with the views of the renowned Muslim scholars such as

Shäfi c1, Tabari, Nahhäs, Räzi, Sarakhsi The

and many others.

manuscript itself is edited carefully so that to the best of my knowledge

no incorrect materials have failed to be mentioned in the footnotes.

I have also to the Qur'änic and äthär

provided references verses

mentioned in this work of jassäs.

To discuss the subject of al-Näsikh wa-1 mansukh, I have also

prepared an introduction. This section consists of eight chapters.

The first chapter is devoted to the description of the manuscript and

text along with the importance of Usul al-Jassäs. The second chapter

is designed to provide details of the author's life and his works. The

third chapter deals with the basic sources of Islamic law and throws

light on the background of the phenomenon of naskh. In this chapter

the views of anti-traditionists are also recorded. The fourth chapter

provides details about the principles of abrogation - whether special

or general together with the significance of naskh. It also discusses

the problem of the change of the gibla and informs us that naskh is a

speciality of the Fugaha'.

 -iii -

In chapters five to seven, I have discussed the three modes

of naskh described by the Usulis. They are: naskh al-hukm du-na

al-tilawa, naskh al-tilawa duna al-hukm and naskh al-hukm wa al-

tilawa. The first mode involves the discussion of the problem of

(bequest) cidda (waiting The second

wasiyya and period). mode

investigates the origin of the Islamic stoning penalty for adultery.

The third mode is concerned with the Tafsir of Q. 87,6-7. In the

final chapter, I have examined jassas' concept of the relationship of

the Qur'an with the sunna and vice versa in the formation of the ahkäm.
 -1V-

DECLARATIONS

(a) I, Mohammad Akram, hereby certify that this thesis which

is approximately 99,000 words in length has been written

by me, that it is the record of work carried out by me and

that it has not been submitted in any previous application

for a higher degree.

00
7 //. /9Y6.. 1*0
Date Signature of Candidate
.. .

(b) I was admitted as a research student under Ordinance No. 12

on 11th October, 1982 and as a candidate for the degree of

Ph. D. on 24th June, 1983; the higher study for which this

is a record was carried out in the University of St. Andrews

between 1982 and 1986.

9 8b
Date ", Signature of Candidate
. .U. "/ .,,
 -V-

CERTIFICATION

I hereby certify that the candidate has fulfilled the

conditions of the Resolution and Regulations appropriate to the

degree of Ph. D. of the University of St. Andrews and he is

qualified to submit this thesis in application for the degree.

Name of Candidate: Mohammad Akram

Title of Thesis: The Principles of Abrogation with special

reference to the Usül of Al-Jassäs.

7th November, 1986.

Date .................. Signature of Superv ........
 -V1-

COPYRIGHT

In submitting this thesis to the University of St. Andrews

I wish access to it to be subject to the following conditions:

for a period of four years from the date of submission, the thesis

shall be withheld from use.

I understand, however, that the title and abstract of the

thesis will be published during this period of restricted access;

and that after the expiry of this period the thesis will be made

available for use in accordance with the regulations of the University

Library for the time being in force, subject to any copyright in the

work not being affected thereby, and a copy of the work may be

made and supplied to any bona fide library or research worker.

lgl
Date Signature
........ ...........
 -V11-

ACKNOWLEDGEMENTS

I must express my gratitude to my supervisor, Dr. J. Burton,

for his scholarly guidance and valuable suggestions which he

afforded me from the very beginning of my studies until this

thesis took its final shape. I also offer him my warmest thanks

for his providing me with enough material on the subject of al-

Näsikh wa-1 mansukh.

My thanks are also due to Dr. Jackson, Dr. Suleiman and

Mr. Kimber who gave me help in many ways. My thanks go also

to the staff of the main Library of the University of St. Andrews,

and to all my friends and relatives who helped me directly or

indirectly in preparing this thesis. I have also to thank Mrs. Kerr

for typing a part of this thesis. My thanks are proffered to the

Ministry of Education of the Government of Pakistan and the Embassy

of Pakistan in London for sponsoring my studies.

I must mention my wife Farhat whose love and continual

encouragement throughout the writing of this work has been invaluable,

CAmara
and our daughter who has been a joy to us both. Finally, I

appreciate the patience and moral support of all my family at home.

 -viii-

TRANSLITERATION

Short vowels

b -a
t =u

ý:. th i

h Long vowels

kh IIa

d s
3. dh si
.
r `s ýYY

z Diphthongs

s au

sh ýs - ai

s
d
b t

C
gh
f

c9 q

J 1
P m
u n

-ý h

a; at (construct state)
w

S y
 -ix-

ABBREVIATIONS

A. H. After Hijra

b. Son of

bt. Daughter of

cf. Compare

d. Died

ed. Edited

E. I. Encyclopaedia of Islam

fo. Folio

ff. Folios

K. Kita b

1. Line

ms, Manuscript

n. d. No date

p. Page

pp. Pages

Q. Qur'an

V. Verse

vv. Verses

vol. Volume

vols. Volumes
 -x-

TABLE OF CONTENTS

Pacue

Dedication i
Abstract ii-iii
Declarations iv
Certification v
Copyright vi
Acknowledgements vii
Transliteration viii
Abbreviations ix

Table of Contents x-xi

PART ONE: INTRODUCTION

Chapter One: Introduction to the manuscript and text. 1-9

The manuscript used in this edition. 1

The copyist and orthography. 2

Critical apparatus. 3

The importance of Usul al-Jassas. 4

A previous edition of a portion of Usuassas. 7

Chapter Two: The author. 10-18

His life. 10
A brief review of some of his sources. 14
His works. 16

Chapter Three: The sources of Islamic law and naskh. 19-56

The Qur'än. 19
The emergence of the ancient schools. 23
The sunna. 29
Anti-sunna arguments. 37
Shäfici and the sunna. 48
 -xi-

Paq?

Chapter Four: The principles of abrogation. 57-107

ShäficPs principles of abrogation. 57
The general principles of abrogation. 69
e. g. The change of the gibla. 80
The significance of naskh. 89
Naskh is a speciality of the Fugaha'. 100

Chapter Five: The abrogation of the ruling but not of

108-38
the wording.

a. Wasiyya (bequest). 108

b. °Idda (waiting period). 122

Chapter Six: The abrogation of the wording but not of

139-88
the ruling.

a. Kaffarat al-Yamin. 139

b. Ayat al-Ridac. 143

c. The background to the stoning penalty for adultery. 146

i. The Torah-source theory. 151
ii. The Qur'än-source theory. 156

jassäs' discussion of the penalty. 158

Shäfi i's discussion of the penalty. 167

Chapter Seven: The abrogation of both the ruling and

189-96
the wording,

Chapter Eight: Jassäs' concept of naskh. 197-215

Notes. 216-34
Bibliography. 235-41

PART TWO: TEXT

Text. iA-
-1
Notes. 1-47
 -1-

CHAPTER ONE

INTRODUCTION TO THE MANUSCRIPT AND TEXT

The manuscript used in this edition .

The number of the manuscript used in this edition is 229

(1)
Usul al-Jassas (Usu1 al-figh). The original copy of this manuscript

is preserved in the Dar al-Kutub al-Misriya. The manuscript was

obtained on microfilm through the kind assistance of N. D. Ahmad,

First Secretary to the Embassy of Pakistan, Cairo, to whom my thanks

are due.

The measurement of each page of the present work is 4" x 6"

.

The manuscript has 329 folios. Each half folio contains 25 lines. At

is written L"l JI ýý
the top of the first page of the manuscript

LI 1ý,
1ýýj 1. On the left side of the same page,
`"ý u,

one can see the stamp but unfortunately the writing is indistinct. The

bottom line on the same page of the manuscript is water-stained. The

with the following 1,

manuscript starts words: rXL., y aU .saJI

4)1 eJLc and continues with

Jt It finishes L-cj NAs e)

1ý.
sý _,,,._,,,___ ýy asiiºI . with v)a1
ti,

(2)
A few pages of the manuscript are missing. Although they

are mentioned in the index given on the second page, they are not

contained in the text itself. The manuscript is well preserved and clearly

written. The transcription of the work was completed on a Monday in

 -2-
ý3ý
Rabi° al-thani 748 /April 1347 in Masjid al-Agsä.

In the present edition, 44 folios are annotated. In these

folios the theory of naskh is discussed. The first chapter starts on

L;
folio 115a with the title &, w,;.J) ý, 14bJI --j
SJ{followed

by the sub-title x: 11LA t ýýill 4 J. J The last chapter is

.

Ij I) )KJI, which ends with folio 158b.

--.;! -

The copyist and the orthography.

(4)
The name of the copyist was Muhammad b. Qadi. He does

not seem to have been well known, because no biographical account of

him is traced. Having edited this portion of al-Nasikh wa-l-mansukh,

we can say that he had insufficient knowledge of the principles of

abrogation. We know little about him apart from the fact that he was

alive in 748/1347 the date when the transcription of the manuscript was

completed. His orthography is generally good and clear. The

consonants bear no diacritical points. Therefore, one has to be very

careful in transcribing the text.

Hamza is omitted after final long alif as '--l; ' for ''L--SJ

(fo. 118a), ' 1.1 -' for ' sl ý--; ' (fo. 115b), ' L-. I' for '

(fo. 118b) and at the end of a word, for example 'kr' for

(fols. 117a, 120b). Occasionally, y replaces the alif such as ' 3ý '

for' 1,-S ' (fo. 117b). Generally, is written instead of hamza in

' ý, ý' for ' ä...i1. ' (fo. 119a). In some cases the copyist uses long

alif instead of alif m ura such as ' V}iI' for ' Lv-i)3"Jl' (fo. 133b).

He does not seem to have taken care in copying. After the name
 -3-

of the Prophet he used 1....9 4;,.1c d lll

sometimes -_. IL4 and sometimes

rt Lok . He missed out numerous words and repeated others.

Several corrections have been made in the text; these are consistently

noted in the apparatus. Because the handwriting of these corrections

is similar to that of the original, it is to be presumed that the corrections

were made by the copyist himself. This gives us the idea that the

copyist had revised his transcription and made the corrections. He

has made corrections in various ways. When some words are missed

out, the correct words are placed between the lines or in the margin.

Sometimes incorrect words are simply crossed out.. Occasionally the

' tt) '

copyist uses the sign at the end of a sentence as full stop.

Some words are found which seem to have no obvious connection with

the passage which in turn suggests that the copyist had missed out some

words or lines from the original copy.

Critical apparatus.

The critical apparatus has been designed to deal with the

problems of the manuscript. The main aim in this edition is to preserve

the original reading of the text whenever possible. Modern Arabic

orthography has been preferred and several letters in the manuscript

have had to be altered as not conforming with modern Arabic usage, for

'. %-6v 1"I.

example to to to

' In such cases no mention has been made in the footnotes

as this is only a matter of orthography. This applies also to words

which have no diacritical points, because it would be impractical to

mention them all. Further, some words in the manuscript have had to
 -4-

be changed because they did not agree with the ideas of jassäs.

References for the quotations, Qur'änic verses and Haadiths

have been provided in the notes. The text has been explained and

compared with the works of renowned scholars. Missing words have

been provided and mentioned in footnotes. Parentheses '( )' have

been used only for Qur'anic verses but inverted commas have been

applied for the ahh dith of the Prophet and the athar of the companions

and successors.

in al- ILucjam
The numbers of the Qur'änic verses are traced

by M. Fu'äd cAbd
al-mufahras li-alfäz al-Qur'an al-Karim al-Bagi,

printed in Beirut n. d. The quotations from the traditions are traced

to A. J. Wens ink's Concordance et indices de la tradition Musulmane,

Leiden 1936-69.

Punctuation and paragraphing have been added whenever

in the present edition. Oblique strokes '//' have been

required

used in order to indicate words that have been added by the editor.

The mark '+' in the Arabic text indicates the end of a folio. The

figures in the left hand margin give the number of the new folio. The

lines of each page are counted in fives. The Western numerals in the

right hand margin are employed for that purpose.

The importance of Usül a1-Jassäs.

In the usual classification of Muslim sciences, the Ilsul al-fish

are generally defined as the sciences of the proofs which lead to the
(5)
establishment of legal standards.

The uTul had been the subject of study by jurists as attested

 -5-

by the fact that Abu Yusuf (d. 182/798) discusses certain aspects of
(6)
it in his K. al-Kharaj and Shaibani (d. 189/804) is reputed to have
(7)
written a book on usu1.
V
But this term had not yet acquired the

technical meaning of a science dealing specifically with the sources

of Islamic law. The Risa la, a unique work in the literature of

Islamic law, gave Shäfici (d. 204/820) a name as the founder of the

science of Usul al-q. The Risala is not a complete work on

jurisprudence dealing with the nature and principles of law, although

the reader may well gain insight into ShäficPs concept of the nature

of law. Several sections are devoted to an exposition of the broad

(9)
principles and rules of the ShariCa.

Shaffci was followed in his monumental work on the principles

of jurisprudence by a Hanafi jurist, al-Karkhi (d. 340/931), the teacher

of our author jassas. Although his treatment was very sketchy, it was
(10)
a fruitful start in the field concerned.

Al-Karkhi was followed by Abu Bakr al-jassäs who wrote a

comprehensive book about Usl al-filth in which he explained the views

(11ý äs,
of his teacher, al-Karkhi. Usul al-Jass as a matter of fact,

is the first systematic attempt ever made to describe the principles of

Muslim jurisprudence. The late Hanafi works on uussuland particularly

on al-Näsikh wa-l-mansukh give us clues that most of the ideas expressed

(12) (13)
were borrowed from Usul al-Tassas. M. Zaid, a modern writer

on the subject of al-Näsikh wa-l-mansukh, states that Jassäs' definition

of naskh was followed for five centuries. Its importance increases when

we recall that most of the works of jassas are lying neglected in the
 -6-

shelves of the Dar al-Kutub al-Misrrya beyond the access of the

learned of today. jassäs made an effort to deal with the Figh problems.

Each topic is discussed in very great detail. The importance of this

work may be estimated by the fact that the views of his opponents

are discussed and examined carefully. The views of those who do

and do not believe in the theory of naskh are also recorded. The views

Isä b. Aban (d. 221/835)

of his fellow Hanafis like are explained.

Some of these views are not acceptable to Jassäs because according to

cIsa b. Aban's. (14)

him Karkhi's opinions were clearer than those of

Records show that Jassäs was an exponent of the Hanafi school

and its acknowledged uusul but this did not mean that he blindly

accepted all the agreed doctrines of this school. Generally the function

of the usuli was to verify the law that existed in the circle in which he

grew up. The production of Usul al-Jassäs, which is an enormous book,

was intended to verify the Fiah of Imam Abu Hanifa (d. 150/767). jassäs

narrated ahädith and athär in support of the Hanafi views and examined

the äthar of his opponents. He endeavoured to document the

carefully

Hanafi views in the light of the verses of the Qur'an and the ahädith of

the Prophet. He rejected Abu Yüsuf and Shaibäni's views when they
(15)
differed from those of Abu Hanifa.

An edition of the section of Usul al-Jassäs on al-Näsikh wa-1-

mansukh reveals that the work is certainly by jassäs, because all the

ideas mentioned in this work can be traced in Ahkam al-Qur'än, which

is a second well-known work by Jassas. Moreover, Zarkashi(16) and

ýý
Suyuti<1 have quoted passages of Usul al-Passas in their works. It
 -7-

should be noted that there is no single indication which leads one to

believe that the work is not by jassäs.

This critical editing of the portion of Usul a1-Jassas is an

attempt to make known the original Hanafi principles on abrogation

which were confronted by the principles of other schools of law during,

before and after the 4th century Ham. jassäs has discussed, as we

have mentioned, these principles in great detail. After studying this

portion, one should be able to draw a conclusion about jassäs' concept

of the role of the Qur'an and the Hadith in the formation of the ahkam.

The main aim in editing this text is to examine the principles of naskh

which were used as debating instruments by the scholars among whom

there had been frequent disagreement.

In a previous partial edition, the chapters on Oiyäs and I'ttIhad

were edited by Said Allah Qädi. I thank Allah, who has provided me

with this opportunity to edit the section on al-Näsikh wa-l-mansukh

which is the most important chapter of us l literature as well as of

Usul al-Jassäs. The editing of the rest of the portion of Usul al-Jassäs

is a debt that is yet owed by me and I hope to undertake it in the near

future.

A previous edition of a portion of Usu1 al-Jassas.

About five years ago, a prominent Pakistani scholar and Associate

Professor, at the Department of Islamic Studies, Peshawar University,

prepared the first edition of a portion of Usul al-jassäs on the chapters

of i äs and I'týihäd.
 -8-

In this work a brief introduction to the evolution of the

science of Usul al-figh was presented followed by a chapter on the

Hanafi Figh and its legal position. The historical development of

i äs and I'týihäd was examined along with their legal and technical

value. The viewpoints of those who do not consider i äs and I tihäd

to be sources of Islamic law were presented but rejected by producing

jassäs' arguments. This introduction was written in English as well

as in Arabic. A number of Hardiths were collected in order to show the

recognition of the use of Qiy9s and I'týihäd in the lifetime of the Prophet

and companions.

In this edition fifty-five folios were considered. The first

chapter started with "concerning discussion on the validity of i äs

and I'tý ihad. " The last chapter ended with "on mentioning the causes

of inductive reasoning. " The text was supported by producing

extracts from the works of those renowned scholars who preceded and

followed jassas. The footnotes in this edition were given in Arabic.

At the end of the introduction a list of the contents of the manuscript

was provided.

The comparison of the manuscript and the edited text shows that

many mistakes in the text were corrected but not mentioned in the

footnotes. For example in the first chapter "concerning discussion on

the validity of i äs and I't3ihäd", it seems that thirteen items should

have been mentioned in the footnotes because they have been altered in

the edited text. In this edition, the critical apparatus used to edit the

text has not been described. In addition to that, new topics were
 -9-

introduced in the text. As the sources of these topics were not

mentioned in either the footnotes or in the introduction, it could lead

one, wrongly, to assume that the topics formed an original part of

the Usul a1-jassäs.

 -10-

CHAPTER TWO

THE AUTHOR

His life.

In the fourth Islamic century which was a period of political

anarchy and in which rivalries among the Sunnis and Shica were in

full swing, our author Jassas was born. Most of the biographers have

failed to mention his place of birth but two reports are available,

this issue. cAbd

although they are at variance regarding al-Hayy
(l) CAli Akbar
Lacknawi records his place of birth as Baghdad, while

Dihkhuda(2) states that it was al-Ray. Which of these two reports

is genuine is a subject for further inquiry. As far as the former is

concerned, his statement cannot be trusted, because a number of

(3) CUmar
reports suggest that Jassas went to Baghdad in 324 A. H.

Ridä Kahhäla(4) states: Abu Bakr known as al-Jassas was a Hanafi

jurist and came down to Baghdad when he was young. Similarly,

Khatib Baghdädi(Sý mentions that Jassäs came down to Baghdad in his

youth and attended the lectures of al-Karkhi. Kahhala and Baghdädi

have used the word "warada" (to arrive or to come) which gives us the

clue that jassäs was not born in Baghdad. Furthermore, it is well-known

that jassäs was called al-Räzi; this nisba is normally applied to persons
(6) (7) (8)
born in al-Ray. In addition Zirikli and ibn Qutlubghä narrate

that jassäs stayed in Baghdad; they use the word "Sakana" (to stay or to

dwell in). These statements show that jassäs was, probably, born in

al-Ray.

11
 -11-

Concerning jassäs'. date of birth biographers were agreed that

he was born in 305/917. Were jassäs and Razi two different people?
(9)
The answer would certainly be in the negative. Ibn Qutlübgha

remarked that one who has understood jassäs to be different from

al-Razi, has made a mistake, in fact they were one. Except for ibn

al-Nad7im(10) and ibn Kath7ir(l1) who have listed Jassäs as al-Razf,

all the other biographers have named him al-Räzi, known as al-Jassäs.

Apart from that, one certain fact is that al-Räzi's most famous book

on Usül-al-figh is called Usul al-Jaýgag.

cAli, Abu Bakr a1-Razi, known as

His full name was Abmad b.

a1-Jassäs. Most biographers appear to have understood who al-jassäs

12)
was. However, al-Lacknawt has recorded a statement of
CA1i
al-Zurgäni, that Abu Bakr Ahmad b. b. Husain al-Räzi was one of

the leading Hanafi traditionists from Nisabur. He studied ahh dith

°Uthman
with Abu Hatim and al-Därimi; and from him ahadith were

cAli
narrated by Abu and Abu Ahmad al-Hakim. According to ibn

cUgda, and died in 315 A. H. Zurgani's

jassas was Hafiz ahadith,

statement, recorded by Lacknawi, as a matter of fact, does not talk

about jassäs. It rather describes a different person's biography which

(13)
is recorded in Tadhkiratal-Huffäz. Therefore, it can be ascertained

Ahmad b. cA1i b. Husain

that al-Lacknawi confused with Ahmad b.

°Ali
al-Räzi al-jassas.

Why is Abu Bakr known as al-Jassas 2 This has been explained

(14)
by al-Sam°ani. He says that nisba, al-Jassas, has been attributed to
 -12-

all those who engage in the use of gypsum or work as plasterers.

As far as jassäs' biography is concerned, no detailed

information has been mentioned so far, but through the available

sources scattered here and there an outline can be sketched. Abu

cAli
Bakr Ahmad b. al-Rani al-jassas came down to Baghdad in 324
(15)
A. H. at the age of 19. Here he studied law under al-Karkhi. In

order to increase his knowledge he left for Ahwaz where he spent some

days, but soon he returned to Baghdad and joined the circle of al-
(16)
Karkhi. Jassas was an expert on the Qur'an and adith" and the

best known jurist of his time. The production of Ahkäm al-Qur'an is a

clear indication of his expertise in Qur'änic studies. As for the adith

he studied these with al-Hakim al-Nisaburi, following the advice of

(17)
his teacher. For this purpose he travelled to Nisäbur. There is

no doubt that he was a famous Hanaff jurist and the chief representative

of the Ashab al-Ra'y in his time. After the death of his teacher,

al-Karkhi, he became the head of the Hanafis in Baghdad. By this time

he was a great scholar and he mediated between the traditionists and

(18)
the lawyers. Abu Bakr has produced numerous books, especially

on jurisprudence. (see p. 16).

According to reports, he was twice nominated for the office of

Qädi but he declined. Al-Saymari reported that Abu Bakr al Abhari

said: "An envoy of Mu; io 1il1äh, the Caliph of Baghdad, asked me to

become a judge but I refused and referred to him jassas. Meanwhile I

personally met a1-jassäs and told him not to accept this position.
 -13-

After that Abu al-Iiasan, the envoy of the Caliph, sought my help.

I took him to jassas. When jassas saw me, he abruptly said, 'Have

I not consulted you and you advised me not to accept? ' Abu al-Hasan

disliked my behaviour and asked why I had referred a person to him

and then told the person not to accept. " I said, "Yes, (I did as you

have said). Here I have followed Malik b. Anas who advised the

people of Medina to choose Näfic as their Imam for prayer, while at

the same time, he advised Näfic not to become Imam. When Malik

was asked about his act, he replied that he preferred Näfic because

no one else reached his standard; and he advised Näfic not to accept

because he would provoke envy and create enemies against him.

Similarly, I preferred Jassäs because no one else is like him and I

advised him not to accede to the request because he had submitted to

(19)
the will of God. "

As jassäs' fame spread far and wide, reaching almost all

quarters of the Muslim world, students came in flocks to attend his

4
lectures. Among his students were:

(1) Abu CAbd A117ahMuhammad b. Yahyä b. Mahdi (d. 398/

a1-Jurjäni
(20)
1008).
(21)
(2) Muhammad b. Musa b. Muhammad a1-Khawärizmi (d. 403/1012).

(3) Abu al-Husain Muhammad b. Ahmad b. Ahmad b. Muhammad b.

CAbdus b. Kämil (22)
al-Dallal, known as al-Zacfarani, (d. 393/1003).

(4) (23)
Abu ja°far Muhammad b. Ahmad al-NasafX, (d. 414/1023).

(5) Abu al-Faraj Ahmad b. Muhammad b. CUmar b. al-Hasan known as

(24)
ibn al-Maslama (d. 415/1025).
 -14-

(6) Abu al-Husain Muhammad b. Ahmad b. Tayyib b. ja°far b. Kämär

(25)
al-Kämari, (d. 417/1026).

Abu Bakr al-Jassäs died on Sunday the 7th of Dhul - hijja 370
(26)
A. H. i. e. 14th of June, 981 in Baghdad. His funeral was

attended and blessed by his pupil Abu Bakr Muhammad b. Musa al-
(27)
Khawarizmi, who led the prayer.

A brief review of some of his sources.

As we have already pointed out, Jassäs was highly influenced

by the founder of Hanaf1 school, Imam Abu- Hanifa. In order to support

his doctrines, jassas äthär and also used his own reasoning.
produced

Each viewpoint that became controversial among the jurists was judged

äthär
by jassäs using Qur'änic statements and ahadith or and then using

logic or reasoning. This left the impression that Jassas was influenced

by the Muctazila or at least he was among those Iraqi scholars who

shared Muctazili views. Here are some examples which demonstrate

the influence on Jassas of the Muctazila.

Good and evil J1' could be judged either by a

.9 t>W-'

command or prohibition of God and His Prophet or by reasoning ' J.,.

-u' .

The Ashcaris and some of the Shäficites held that nothing was good or

bad in itself. All was dependent upon the law giver's

command or prohibition which alone made the thing good or bad. In

contrast, the Muctazila and some of the ahnäf argued that good and evil

of things could be judged by reason '' and once reason had

determined. something to be good, a Muslim who acted in the specified

 -15-

way would be rewarded. Similarly, once reason had considered

something to be bad, a Muslim who acted in such a way would be

punished. They further remarked that good or bad things willed by

(28) (29)
the law-giver should be commanded or prohibited. Jassäs

stated that God, the Almighty, never commanded an act unless it was

good and He never prohibited an act unless it was bad. The result

was that the very things which were good in themselves like justice

and belief in Allah could not be abrogated by opposite commands.

Like the Muctazila, jassäs did not believe in magic ' mow'.

He quoted several examples which indicated that the reality of magic

was out of the question. He was certain that magicians were unable

to turn a man into an ass or dog or turn an ass or dog into a human

being. He attacked magicians by saying: "Man could not perform

supernatural acts. If he had been able to perform such acts, he would

(30)
not have surrendered to Moses. "

Among the teachers who influenced Jassäs, two names were

prominent Abu Sahl al-Zajjaj and al-Karkhi. The former did not
-

over influence Jassas but the latter prevailed on his professional

writings. Jassäs has elaborated most of the views of al-Karkhi in his

usül and the collection of these views from Usul al-Jassäs could
(31)
become a topic for separate research. According to ibn al-Nadim,

al-Karkhi was a man whose counsel was sought and from whom learning

was acquired. The most prominent legal authorities of the period

studied under him and he was unique in his time because he was not
 -16-

obliged to defend himself, and was not involved in public disputes.

At the age of 81 al-Karkhi became paralysed. He was a very poor

fellow and had no money to pay for his treatment. His pupils

consulted among themselves and sought the assistance of Sacid al-

Daula, the ruler of Syria at that time. When al-Karkhi knew that, he

was shocked and died before al-Daula could send money. This money
(32)
was later given to charity. Al-Karkhi died in 340 A. H.

Among the other sources, the names of those from whom Jassäs

narrated ahadith are worth mentioning. They were Abu al-°Abbas al-

(d. 346/958), Abu CUmar Ghuläm ThaClab (d. 345/957),

Asamm al-

(d. 360/971), (d. 346/958) °Abd b.

Tabarani al-Isfahani and a1-Bagi

Qänic (d. 352/963). It seemed to us that Jassäs mainly relied on ibn

QäniC, for most of the ahh dith in Ahkäm al-Qur'än were narrated on his

authority. Däraqutni, a well-known traditionist, also narrated

ahädith on his authority, but stated that ibn Qänic used to make mistakes
(33)
in his narrations. According to others he was trustworthy.

His works.

jassas made a very considerable contribution to the field of

Islamic jurisprudence. He has left numerous books on this subject.

Unfortunately, some of them no longer exist, while others are still

lying on the shelves of the Dar al-Kutub al-Misriya awaiting scholarly

attention. Here these are examined one by one.

(1) Usul al-Jassäs: This is a mugaddama (introduction) to Ahhkkäm

al-Qur'an. The study of the latter work shows that whenever jassä?
 -17-

comes to a point of Usul al-figh he refers it back to his usul Usul

(34)
a1-Jassas).

(2) Ahkäm a1-Qur'an: This is a second cAbd

work of jassäs.

al-Rahmän took the responsibility of producing the text of Ahkäm al-

Qur'an by jassäs. It appeared in 3 volumes in Cairo in the year 1347/

1928. The next step was taken by the Suhail academy, in Lahore,

Pakistan, and the year 1980 saw a new edition. This is an important

work in the sense that it provides the views of those scholars whose

books are not available cUthmän

to us, such as al-Batti, al-Awzäci,

al-Thawri, al-Laith, ibn Abi Laila and ibn Shubrurna. It also provides

notice of different views of the leading Imams - Abu Hanifa, a1-Shäfici

and Malik. This book also contributes to the sciences of tafsir, hadith,

and Usül al-figh.

(3) Sharh l mit al-Kabir: is a well-known work by jassäs. Ibn

al-Nadim(35) states: "jassas' commentary on the large compilation of

Muhammad b. al-Hasan al-Shaibani is a delightful book. " This

manuscript is preserved in two volumes. The first volume was written

in 559 A. H. and the second in 560 A. H. It is preserved in the

,
(36)
Dar al-Kutub al-Misriya, under Figh Hanafi, 745 and 746 respectively.

(4) Sharh Jämic al-Saghir - Haji Khalifa(37) has recorded this book,

but there is no further evidence of its existence.

(5) Sharh Mukhtasar al-Karkhi. It is an established fact that al-

Karkhi wrote a book called mukhtasar. It is also known that this

 -18-

was abridged by Jassas as most biographers mention this. However,

it is doubtful whether it has survived.

(6) Sharh mukhtasar al-Tahawi - All the biographers agree that

jassäs wrote a Sharh mukhtasar al-Tahäwi. This manuscript is

preserved in two volumes. S. Fu'ad(38) states: The handwriting of

the first volume reveals that it was written in 5th A. H. and the second
,

volume was written by a1-cAllama 'Itgäni in 748 A. H. Both volumes are

preserved in the Dar al-Kutub al-Misriya, under Figh Hanafi 756 and
(39)
498 respectively.

(7) Sharh al-asmä' al-Husnä. This book, to the best of my knowledge,

has not survived.

(8) Sharh adab al-Qädi li al-Khassäf -A manuscript was written in

(40)
629 A. H. Its number is JraAllah 1689. It consists of 201 folios.

(9) Jawähät can Calaih. This book containing the

masä'il waradat

fatäwä of Jassäs to the best of my knowledge has not survived.

 -19-

CHAPTER THREE

THE SOURCES OF ISLAMIC LAW AND NASKH

The Qur'an.

The first and basic source of Islamic law is the Qur'an

(1)
revealed to Muhammad through the angel Gabriel, over a period

of twenty-two years. It demands serious study because it is not

an easy book. To understand the theory of naskh knowledge of the

Qur'an and the sunna is essential. From the very beginning scholars

were busy interpreting the Qur'änic verses in order to clarify the inner

Ibn CAbbäs (d. 68/687), for example,

meanings of the rulings. is

said to have been a remarkable authority on Qur'änic exegesis. To

understand his interpretations of the various verses, attention must

be paid to TabarPs tafsir; this contains interpretations of most

passages of the Qur'an which were attributed to him. Moreover, we

can also trace the views of other early scholars, such as Sacid b.

Jubair (d. 95/713), Mujähid (d. 102/721) cIkrima (d. 105/724),

and

who were also outstanding authorities on the Qur'änic verses.

However, as there are some contradictory reports ascribed to each of

the above mentioned scholars, it has been suggested that interpretations

were later ascribed to these highly regarded scholars by jurists and

commentators, in order to project back their own legal doctrines. It

is believed that during the lifetime of the Prophet, the revelation was

explained by the Prophet himself to his companions. Therefore, no

controversy resulted over any issue and once the Prophet had decided
 -20-

upon some matter, then that was binding. It was his role to tell

them the inward meanings of the commands and the prohibitions

(2)
revealed to him.

It is interesting here to note that there was no single reported

instance in which the Prophet said that a certain ruling was abrogated.

This tells us that the principles of naskh emerged later in the history

of Islamic law. It will be seen that when the Commentators and the

jurists could not reconcile apparently contradictory verses dith,

and ah ah

they put forward this theory. We shall see also that in order to

justify their theory, they appealed to certain Qur'änic verses. Further,

they produced some traditions which bore witness, according to them,

to the fact that acquiring a knowledge of naskh or al-Näsikh wa-1

mansukh was a necessary qualification for interpreting the Qur'anic

verses. They went one step further by saying that no one could

interpret the Qur'an unless he was an expert on the abrogating and

(3)
abrogated verses.

Records indicate that the Qur'an was used to deduce rules from

the very beginning. cUmar,

When the territory of Iraq was conquered,

the second Caliph, consulted the leading authorities of his time

concerning the distribution of the land. The majority including Bilal

b. Ribah and °Abd

al-Rahmän were of the opinion that it should be

distributed. The opinion cUmar

of was contrary to those who insisted

cUmar "May
upon his distributing it. remarked: Allah save me from

Bill and his friends. " The discussion went on for some days until
 -21-

cUmar found in the Qur'an (59-8-10).

a reason He recited the

verse until he reached the saying of Allah: "Those who came after
cUmar
them. " asked, "how could I distribute it amongst you and

leave those who came afterwards without any share? " He decided
(4)
to leave it in the hands of the owners.

(5)
Another anecdote is found in the form of a hadith. Sa%d

b. Hisham b. cAmir ibn cAbbas

asked about the prayer of the Prophet.

The latter CA'isha, oAmir

referred him to the Prophet's wife, whom ibn

consulted concerning the behaviour of the Prophet ( UI

a. Jý,.. 6 ).
ý ty.

Ibn cÄmir "Do you not recite

was answered in the form of a question,

the Qur'an? " to which he replied, "Yes, I do. " cA'isha then stated:

"The behaviour " cAmir

of the Prophet is the Qur'an. Ibn stated:

"I wanted to stand up and not to ask anybody about anything until I

died. Suddenly, another question came into my mind and I asked her

again, "Could you possibly tell me about the night prayer ( týiº )

of the Prophet? " She replied, "Do you not recite the Qurlan (73)

'0 you heavily wrapped in a garment ' This anecdote also

... ."

indicates the tension between the ahl al-Qur'än and the ahl al-Hadith.
CA'isha CAmir
was made to refer ibn to the Qur'än, although she herself

could have told him about the behaviour and the night prayer of the

Prophet as she had obviously been aware of these during the lifetime

of the Prophet. Her name was used in the anecdote in order to stress

the importance of the Qur'an. It has been argued that this anecdote
(6) cÄmir
was propounded by the ahl al-Qur'an. That ibn was contented
 -22-

by CP.
'isha
with the answer provided shows that the provisions of

the Qur'an were known to the early Muslims.

The following report confirms our view that reference was made

to the Qur'an, in the initial process of law making. A runaway slave

CUmar, Ibn cUmar

of ibn according to a report, stole something.

sent someone to ask Saoid b. al-cAs, the governor of Medina, to cut

off his hands. Sacid b. al-°Äs refused to do so saying that a runaway

if he committed theft. Ibn cUmar

slave should not suffer amputation

reportedly said: "In which Kitab Allah did you find that? " Thereupon,

cUmar (7)
ibn ordered that the slave's hand should be amputated.

cAbis
Kindi(8) reports that b. Sacid, the second gadi of Egypt,

under the Umayyad administration, was asked to solve a problem of

inheritance. The gadi solved it immediately. The Caliph Marwän

was very pleased with his gadi's instinct and remarked that he was

among those who have mastered such problems. Knowledge of the

Qur'an, according to this anecdote, was essential at least for the post

of gädi. The verses on inheritance are clear regarding legal heirs and

their shares, to the extent that there is little exegetical discussion on

(9)
them. To a greater or lesser extent, scholars are unanimous on

the details of inheritance and these details agree with those provided

by the inheritance verses. Furthermore, the categories mentioned in

Q. 4,23 concerning women with whom marriage is prohibited are

unanimously accepted in the Figh. This unanimity points out that the

Qur'än was the basic source of Islamic law and was referred to before
(10)
the emergence of regional schools.
 -23-

Evidence can also be produced in favour of key scholars who

(11)
would refer to the Qur'an in certain cases. According to Malik,

mules, horses and donkeys were forbidden food. Commenting on

Q. 16,8 and 22,28 he said, "God said that horses, mules and donkeys

were to be used for riding and adornment. " It should be noted that

Malik derived his doctrine direct from the Qur'an. He did not refer

to any haTdith to this Ibn cAbbäs

effect. was also of the view that

the meat of horses was forbidden in the Book of God. When he was

asked to provide evidence, he recited Q. 16,8 and remarked that these

animals were for riding. Mujähid, Auzäci and Abu Hanifa have also
(12)
accepted this view. The latter is also reputed to have based his

judgements on certain verses of the Qur'an. For instance, he proposes

that it is acceptable to cut down or set fire to palm-trees which belong

to an enemy. Abu Yusuf supports his master's view and produces

äthar. (13)
Shäfici also accepts their views and gives reasons. Abu

Hanifa refers to Q. 59,5 : "Whether you cut down the tender palm-tree

or you left them standing on their roots, it was by God's permission. "

The emergence of the ancient schools.

After the demise of the Prophet, the situation was totally

altered. Now the process of establishing legislation through Qur'änic

revelation and Prophetic authority came to an end. It was natural that

the early Caliphs in consultation with the leading companions of the

Prophet should endeavour to guide the Muslim community on the lines

of its founder. However, new incidents which occurred through the

passage of time had to be solved. We are told that if there

were no
 -24-

precepts in the Qur'an or the sunna, they used their own opinions.

Let us produce an example which will illuminate their reliance on

ra'y. When a sum of money from Bahrain reached Abu Bakr, the

first Caliph, he observed equity among the Muslims. But when he

was told that there were some people who claimed preference over

others because they were first to embrace Islam, Abu Bakr replied:

"I do not recognise this excellence; these are merits the reward of

which is with Allah, and this is a worldly matter, i. e. distribution of

(14)
booty. Equity is far better than discrimination. , On the contrary,

cUmar became Caliph,

when conquests were made and property

oUmar
obtained, then said, Abu Bakr had one opinion with regard to

this property and I have a different opinion. I will not treat one who
ý(15)
fought against the Prophet like one who fought with him

cUmar's thinking
There were, however, numerous cases where

was contrary to the Qur'änic rulings. The following example will

cUmar the giving

demonstrate this point. abolished of a share of

zakät by the Prophet to certain Muslims and non-Muslims for

'reconciliation of their hearts', as prescribed by the Qur'än (9,60).

The Prophet used to give this portion of zakät to chiefs of certain

Arab tribes in order to prevent them from doing harm to the Muslim

community; and to attract them into accepting Islam as their religion.

The Prophet also gave this share to newly converted Muslims so. that

they might become active members of the community. Abü Bakr had

promised during his caliphate to donate certain lands to some persons

But cUmar
on the basis of the above ruling. refused to accept the
 -25-

claim made by the same persons, arguing that the Prophet had given

this share in order to strengthen Islam, but that now Islam was

strong, there was no need to reconcile these people, therefore, this

(16)
share must be stopped.

When the caliphate was transformed into a hereditary dynasty,

the spirit to serve the Muslim community was allegedly not the same

as under the first four Caliphs. However, the Umayyad government

contributed to the development of a legal system which according to

some was already in existence from the lifetime of the Prophet. Here

we would like to mention some of the sources of law on which the

Umayyad dynasty relied. The Umayyad rulers, in consultation with

the governors of the respective regions, appointed gadis and the

decisions made by them were put into practice. For example, one of

the gädis of the Umayyad government decided that payment of compen-

sation for physical injury should be paid by the treasury. This

(17)
decision was put into practice. Mucäwiya, the founder of the

dynasty, cUmar,
Umayyad carried on the practice of according to which

when any state official died, half of his property would be taken by the
(18)
government and should become part of the treasury. The Umayyad

government preserved the spirit of the Qur`anic religious practices as

(19)
they thought fit. This can be explained as follows. The case

deals with the implications of a general moral injunction of the Qur'an.

Q. 2,241 urges husbands to make provision for wives that they have

divorced. Ibn Hujaira, gädi of Egypt (688-702), made this provision

obligatory. He fixed the amount at three dinars and maintained that in

 -26-

case of denial, it should be recovered from the husband's stipends.

On the contrary, a later qadi, Tawba b. Namir, remarked that the

Qur'anic ruling was not obligatory; it depended upon the husband's

discretion. When a husband refused to provide a provision for his

repudiated wife, the gadi could not do anything, because he did not

consider the ruling binding upon the husband. However, when this

same husband appeared as a witness in another case, the gädi rejected

his testimony on the grounds that he was not among the pious ones.

Khair b. Nucaim, Tawbä's successor, once again made the ruling

(20)
incumbent. The argument centres upon the tafsir of the verse.

The Umayyad rulers and their governors were alleged to have

been little concerned about the religious life of the population,

therefore theological differences were thought to have emerged among

the Muslims. Mecca, Medina, Basra and Kufa became the scholastic

centres. Mecca had little effect on the growth of Islamic Filth.

because people were more attached to Medina. Here, Malik established

his Figh setting it out in his book of Hadith Muwatta'. In this book
(21)
the word naskh is mentioned only once. It is held that the

Qur'änic injunction which prescribed the precise shares of the listed

relatives of a deceased person (Q. 4,11,12) abrogated the Qur'änic

22)
injunction concerning wasiyya (Q. 2,180). Malik also indicated that

the Qur'an could abrogate the sunna, but in this case he used the word
(23)
taraka. He agreed with his teacher Zuhri (d. 124/827) on the point

that the Qur'an could abrogate the Qur'än; the later command abrogated
(24)
the earlier. In Syria, Auzaef (d. 157/744) established his Fi h
 -27-

which was eventually to be replaced by the Mäliki Figh. However,

the most vigorous efforts to establish a legal system were made in

Iraq. Abu Hanifa (d. 150/767) may here be mentioned as the founder

of the system. He acquired much of his knowledge from Hammäd b.

Abf Sulaimän (d. 120/738), who is regarded as the pioneer of the

Hanafi school. The Eich of the Iraqi school was supported and

established by two great pupils of Imam Abu Hanifa Abu Yusuf (d.
-

182/798) and Shaibäni (d. 189/804). At the request of Caliph Harun

al-Rashid, the former compiled his K. al-Kharäj which, however, covers

much wider ground than is indicated by its title. For example, he talks

about Rajm among other things. Little is learnt about naskh from this

book. However, Abu Yusuf maintains that the sunna can override the

Qur'an. The abrogation of the Quranic injunction of ablution (Q. 5,6)

(25)
by the wiping of the boots is a case in point. Shaibani, like his

companion Abu Yusuf, did not discuss the theory of naskh in detail

although some instances of naskh are discussed in his works. Shaibäni

reported that the Prophet launched a campaign against al-Tä'if at the

beginning of the sacred month of Muharram and continued it for forty

days until he captured the city in the month of Safar. Shaibäni then

produced a report on the authority of Mujähid in order to demonstrate

that the prohibition of fighting during the sacred months was abrogated.

According to Mujahid, the prohibition of fighting during the sacred

months as laid down in Q. 2,217 was abrogated by God in another verse:

(26)
"slay the polytheists wherever you may find them. " (Q. 9,5).

When Shaibani was reminded that fighting during the sacred months,
 -28-

according to al-Kalbi, was not abrogated, he remarked that al-Kalbi's

(27)
opinion was not to be followed. This sort of report tells us that

there was no agreed theory of naskh. It also informs us that there

seems to be no agreement among the jurists themselves on the

incidence of naskh.

The Iraqi school was also supported by the Basri theologian

al-Thauri (d. 161/778) whose system for a long time remained

authoritative, but like that of the above mentioned Auzac did not
,

survive. As has been mentioned, the principles of law arose first in

Medina and then in Iraq, the object of the pious men who at first

worked without theory or method, was to correct and adjust the material

of the law they found in existence, according to Muslim religious

principles and on the basis of a tradition which they recognised as

binding. Later, their attempts resulted in establishing individual views

as one finds numerous cases which were settled by the use of ra, y.

Although the Mäliki school did not entirely decline the use of ra'y' it

made a moderate use of it in comparison with the Iraqi school. As far

dith
as the ham is concerned, the Iraqis had better knowledge of it than

the Malikis. The study of K. Siyar al Auzäci shows that Abu Yusuf was

acquainted with the knowledge of haad_ithas well as the sunna (i. e.

practice) on many cases of law. There were, however, scholars like

ShäfiC1 who never used ra'y or hadith as long as the sunna of the Prophet

was available. We shall discuss ShaficPs views in the following pages,

but here it should be noted that some of the Muctazila argued that

dith contradicted
because ham itself and the Qur'an, it ought not to be
 -29-

accepted. Before we mention their arguments against the whole

body of the sunna, it would be useful to understand the distinction

between the two terms - hadith and sunna.

The Sunna .

The second source of law in Islamic Figh is the Prophet himself.

During his lifetime, numerous cases were referred to him. The Qur'än

itself bears testimony that the companions asked him certain important

questions and in turn, the answers were provided by God in His book.

For example, they asked about spoils of war ( JW11 ), new moons

( äJ.aºyi ), what they should spend (O, 1.3 L), women's courses

and many other topics. The answers to all these questions

are still preserved in the Qur'an. Yet there were other problems which

were solved by the Prophet himself. These problems will occupy us

in the following paragraphs. Further, during his lifetime, he appointed

some ambassadors to different places and these were authorised to deal

(28)
with and solve the issues which they confronted. Even after the

death of the Prophet, questions were referred to his close friends and

CR'isha. It was asserted that these latter

his wives, particularly

authorities were best acquainted with the Prophet's day-to-day

behaviour. Thus, by settling problems in this way there came into

existence alongside the Book of God another source of law which was

later named the sunna.

Generally speaking, the terms haaddi_th

and sunna are identical

and convey the same meaning, but in a critical sense their meanings

differ from each other. Literally, the word hadith means oral
 -30-

communication of any kind, secular or religious, whether of times

long past or of more recent events. The Qur'än has used the word
(29)
hadith in this sense. Technically, dith
the term ham is now restricted

to the Prophet's sayings, whether made on his own initiative or in

response to a question.

The term sunna in Arabic means pathway, behaviour, practice,

manner of acting or conduct of life. A number of Qur'änic verses show

that the term sunna implied the normative practice or the model behaviour
(30)
of an individual, sect or community. The concept of sunna was

already in vogue in pre-Islamic Arabia. Therefore, it was not new for

the Muslims. It had been used for the past customs of Arabs and

conduct established by their forefathers. The Arabs strictly followed

these customs, because they regarded them as norms for themselves.

The Qur'an draws their picture in the following words, "when one says
C9f

to them: obey the law which God has revealed, they reply: we follow

the customs of our ancestors" (Q. 2,170). They also said: "We found

that our fathers were on a path, thus we follow their footsteps! ' (Q. 4 3,22).

The Muslims used the term sunna in the sense of normative practice that

should be adopted in all aspects of life especially in legal matters.

However, they were divided over the precise meaning of this term.

According to the early scholars, local practice, consensus and traditions

which came down from the Prophet and successors were regarded as
(31)
sunnas. According to Malik the ideal practice was the practice of

Medina. Therefore, he restricted the term sunna to the agreed or

established practice of Medina, either in his time or before him. Abu

 -31-

Yüsuf stressed the importance of reviving the sunna of the pious men

because, according to him, maintenance of sunna is a virtue which

(32)
never perishes. It was Shäfici who restricted sunna to the

normative practice of the Prophet.

The difference between the two terms which has to be kept in

(33)
mind, according to Goldziher, is this: "Ha=dith means an oral

communication derived from the Prophet, whereas sunna in the usage

prevailing in the old Muslim community, refers to a religious or legal

point, without regard to whether or not there exists an oral tradition

for it. A norm contained in a ham is naturally regarded as sunna;

but it is not necessary that the sunna should have a corresponding

haadth which gives it sanction. It is quite possible that the content

of a hadith may contradict the sunna. " Further distinction between

the two terms may be made by the following cAbd

example. al-Rahmän

b. Mahds (d. 198/813) is reported to have said: "Al-Thauri (d. 161/778)

is an Imam in hadith but not in the sunna while Auzäci is an Imam in

sunna but not in hadith and Malik is an undisputed master in both the
(34)
sunna and the hadith. The Fugaha' also distinguished the terms in

their works. Abu Yusuf urges us to follow dith which

the haT conforms to
(35)
the Qur'an and the sunna. The term hadith, according to him, can

also be applied to the statements of the companions. cn the problem of

allotting a share, from the booty to the horse and its rider, the decision

cUmar,
made by the governor of Syria and later approved by is considered
(36) °Urwa,
dith.
a haT Shaft i says that Sac id b. al-Musayyab, and
Qäs im b. Muhammad narrate ahädith from the Prophet, which they accept
 -32-

(37)
as sunnas. Referring to a question by his interlocutor, Shäfioi

remarks that the basis of a particular doctrine is the sunna which is

(38)
traced in the haTdith reported by Malik from the Prophet.

As a matter of fact, the sunna, as will be shown, originated

in the early tafsir, from the practice of the early Muslims; it is thus

also based on the Qur'än. Abu Sulaiman al-Juzjäni, the pupil of

Shaibäni reported on the authority of al-Aslam1, who said: "Whenever

C
the Prophet sent forth an army, he would say, fight in the name of

Allah and in the path of Allah. Do not cheat or commit treachery, nor

mutilate anyone or kill children. Whenever you meet polytheist

enemies, invite them first to adopt Islam. If they do so, accept it

This hadith(39) is obviously derived from the

and let them go.

Qur'änic injunction: "We never punished anyone until we first sent

them an Apostle. " (Q. 17,16). Shaibani reported on the authority of

Hasan al-Basri cAtal, both of whom said: "The prisoners

and of war

should not be killed, but they may be ransomed, or set free by grace. "

This hadith(40) is an exact derivation from the Qur'anic verse:

"Therefore, is the time for either generosity or ransom. " (Q. 47,4).

The ancient scholars based numerous doctrines on the Qur'änic

exegesis. It is very difficult to determine the starting point of tafsir,

but it is obvious that it emerged in the history of Islamic law before

the growth of the ancient schools, as the scholars built their doctrines

upon it. Further, it would be justifiable to say that the scholars

agreed on the problems where tafsir was not in contradiction. For

CIdda for
example, they agreed that the a pregnant widow should expire
 -33-

with the birth of a child. The Qur'an, in fact, does not stipulate

this prescription but it is the tafsir that has settled the matter by

c Idda (41)
i as with the of divorcees. There are many other injunctions

such as prayer, fasting, poor-tax and pilgrimage where the detailed

rulings owe their origin to tafsir. As we have pointed out, the date

of the tafsir is obscure; this led the scholars to attribute their doctrines

to early higher authorities until the isnäd (chain of transmission), in

some cases, arrived at the Prophet. This attitude can be traced in

(42)
Muwatta' where Malik utters expressions like: 'the best that I heard'
(43)
and 'this is what I heard. ' Malik wanted to support his doctrines

by attributing them to higher authorities. This way of attributing the

doctrines, according to some, should not be considered. It is the

Qur'an that should be taken as the criterion and hardith which is related

to the Qur'än must be accepted. Putting it in another way, the

importance of a hadith lies in its origin and not in the authorities to

whom it is ascribed. Further, it is not reasonable to compare two

contradictory sources on the strength of the authorities and on a number

(44)
of reports, as ShäfiCi does.

The following example will illustrate the way in which Shafi°i

(45)
bases his doctrines on a number of reports.

cAlisha "In what was revealed,

reports: ten attested sucklings

were required to establish the bar. The ten were later replaced by

five. The Prophet died and the five were still being recited in the

Qur'an. " She used to say: "The Qur'an was revealed with ten

attested sucklings setting up the bar. These later became five. "
 -34-

cUrwa "The Prophet commanded

reports: the wife of Abu

Hudhaifa to nurse Salim five times to set up the bar. She did

so and always considered Salim a son. "

cAbd Allah
b. al-Zubair reports: "The Prophet said, not one

and not two sucklings constitute the bar, nor one nor two sucks. "

Salim b. cAbd Allah °Ä'isha

reported that sent him away and

refused to see him. He was being suckled by her sister Umm

Kulthum who had fallen ill after suckling him only three times.

Salim said: "I could CA'isha I had not completed

never visit since
(46)
the course of ten. "

On the basis of the above reports, Shafic1 considered the five

(47)
sucklings as a Qur'änic injunction whose tilawa was withdrawn.

Shäfici's other aim was to refute the doctrine of his opponents - the

Malikis. Malik had derived his doctrine direct from the Qur'an.
(48)
Although he knew the ahh dith, he did not rely on them. ShäfiC

quoted another report in which another of the Prophet's widow, Hafsa,

She sent cAsim b. cAbd Allah b. Sacd to her sister

is involved. Fatima

to be breast fed ten times so that he could call upon her. He was only
(49)
small at that time. She did this and as a result, he did call upon her.

Shäfi°i blames the Malikis by saying that they transmitted ahadith

but rejected them in favour of the opinion of a successor. The Mälikis

dith from the Prophet and cA'isha;

reported ah a= they also reported the

Prophet's command to Sahla bt. Suhail to feed Salim. But they rejected

all these reports in favour of the ray of Sacid b. al-Musayyab Sacid

-

had claimed that one suckling by itself could constitute a bar, yet on
 -35-

another occasion they ignored his view in favour of their own

(50)
doctrine.

Shäfi°i's interpretation of Q. 4,23 is not straightforward and

must be open to question. His arbitrary opinion on the problem in

question is not justifiable, because what Sacid had said was only

Shäfi i has also tried

the direct tafsir of Q. 4,23. to harmonise the

and the a ädith. He claims that the verse in question is

verse

couched in general terms and that the ahh dith explain it. He, as a
cÄ'isha
matter of fact, admits that the alleged report was the direct

tafsir of Q. 4,23 when he says: "Some of the people in the past said

cA'isha.
the same as "(51) Shafict and his interlocutor were discussing

the problem, taking into account the early tafsir, the origin of which

was obscure. One gets the impression that the scholars were not left

with any contradiction between the Qur'än and hadith but that there was

contradiction in the tafsir. It was the task of the usui to differentiate

between correct tafsir and arbitrary tafsir.

According cA'isha is strange in the theory

to Makki(52) the report

of al-Nasikh wa-i mansukh because neither the abrogating nor the

abrogated is recited in the Qur'än. According to Malik and the Medinese,

the ruling and the wording have both been abrogated by Q. 4,23.

Therefore, one suckling sufficed to set up a marriage bar. Makki was

prompted to say that this doctrine was excellent because the näsikh was

recited in the Qur'än while the mansukh was not.

ý53ý
jassäs has dealt with this problem painstakingly. According

to him, one suckling is enough to constitute a bar since this is the

 -36-

exact meaning conveyed by the Qur'än (4,23). He points out that

in order to determine the number of sucklings we must refer to the

Qurlan and the sunna mutawätira, not to Khabar al-Wähid, since

the latter is not capable of restricting takhsi) the explicit ruling of

the Qur'an. Jassäs rejects the ahadith on which Shafici had based

his judgement. He has a number of reports to strengthen his doctrine

but we mention He quotes in which ibn cAbbäs

only one. an anecdote

is asked, "the people say that one or two sucklings do not count

CAbbäs
I9 'rýI {r'''te Y ). " Ibn reportedly says:
.jj

"That was the practice in the past but now one suckling constitutes the

bar", Jassäs, CÄ'isha's

i. e. a counter tafsir) adtth. after quoting

report, remarked: "No Muslim can say that the Qur'än can be abrogated

after the demise of the Prophet. Were the abrogation possible, the

tiläwa would have survived. As the tiläwa is not in existence and the

abrogation can not possibly be made after the death of the Prophet, the

CA'isha dith must be taken as if it conveyed

haY one of the two possible

meanings. Either the ruling of this hadith is not confirmed, or it had

been confirmed but was abrogated during the lifetime of the Prophet and

what was abrogated could not be practised after his death. "

From the above discussion we can safely conclude that the early

tafsir reflected one of the elements of the sunna on which the early

schools were founded. In the problem of Ridac, the tafsir made by

Sacid is more in keeping with the Qur'an than those of the ahadith

presented by Shafici, because one suckling is the minimum on which

the implication of the verse can be applied and this is the direct tafsir

of Q. 4,23.
 -37-

Another element of the sunna was the legal or ritualistic

practice of the predecessors. The origin of this practice was unknown

to the ancient scholars. They could not remember when and on what

basis that particular practice was started. However, they accepted

the practice and based their doctrines on it. It should be noted when

the rival schools demanded documentation, there emerged the tendency

to project back the doctrines by producing isnad which in some cases

could be traced back to the Prophet. The following is a clear instance

in which this has occurred. A widow, during her waiting period,

according to practice, was not allowed to leave her matrimonial home.

However, widows could visit one another during the day provided they

came back and slept in their own homes. This practice must have been

based on the hadith in which permission was granted to the widows of

(54)
the Muslims who were killed in the battle of lThud. According to
(55)
Abu Hanifa the permission emanated from ibn Mascud while
ý57ý
Shaft i(56) attributed this doctrine to the Prophet.

Anti Sunna arguments.

Shafici in his treatise JimaC al-calm clearly indicates that some

ahl al-Kaläm were among those who rejected ahith altogether. He

also acquaints us with another group whom he does not name but

through polemics with his opponents, it is clearly understood that the

ancient scholars were included among them. This latter group rejected

hadith which Shäfici calls Khabar al-Khäss hadiths not universally

"
(58)
8)
transmitted). Qutaiba has mentioned some of the rival factions

who were considered among the opponents of the traditionists. He

 -38-

ý59ý
named them as Khärijites, Murii'tes, adarites and Rafidites.

He also gives some reasons why hadith was being rejected by the

above mentioned groups. He thinks it was because of the mistrust

which developed among the Muslims after the death of the Prophet.

He further comments that by various political and religious squabbles

they were divided into several groups. As a result, various battles

took place and they started accusing even the early Caliphs who were

the close friends of the Prophet. Because most of the traditions were

related by these authorities, they were rejected and discarded. Each

group restricted its reception to those ahh dith which in their isnäd

bore the names of those who were considered their allies. The Shica

rejected all those traditions which went back to the authority of the

cAl1 CAli
first three Caliphs before or at least in which appeared as
(60)
their representative.

The arguments presented by the anti-traditionists against the

ahhadith of the Prophet were as follows. The main argument against the

traditions was the acceptance of the absolute authority of the Qurän

which, according to them, explains everything and is gätic in its

(61)
meaning and transmission. Therefore, it should be taken, they

argued, as the criterion and standard by which traditions are accepted

or rejected. Ibn Qutaiba(62) has recorded examples where the ahl al-

Kalam claimed that contradiction existed between the sources and hence

rejected the haTdith material altogether. The anti-traditionists produced

two ahädith in favour of their doctrine.

(1) The Prophet said: "Compare what is related on my authority

 -39-

with the Qur'an. If it agrees with it, I have said it; if it does not
(63)
agree I have not said it. "

(2) The Prophet said: "People ought not to shelter behind

my authority, I allow what Allah allows and forbid what Allah

(64)
forbids. °

Shäfici does not accept these reports on the grounds that the
(65)
isnäd is weak. He, in turn, produces a haTdith on the authority of

the Prophet and thus refutes his opponent's doctrine. The hadith runs:

"Let me find no one of you reclining on his couch, when

confronted with an order or a prohibition from me saying:

I do not know (whether this is authentic or not), we follow

(66)
(only) what we find in the Qur'an. ''

The traditions reflect the squabbles among the traditionists and

the anti-traditionists; these must, therefore, be spurious. The Iraqis

abandon haydith if it contradicts the Qur'än. Abu Yusuf clearly says:

(67)
What contradicts the Qur'an, is not from the Prophet. " Arguing in

favour of his doctrine, he relies on the above-mentioned two traditions

narrated by the anti-traditionists and produces a further report from

cUmar in Qurza b. Kacb al Ansäri is reported to have said: "I

which

CUmar
joined a group of Ansär who were setting out for Kufa, accompanied

the group to a particular place and said: 'You are heading towards

people who are humming with the Qur'an like bees, therefore, relate

only a little from the Prophet. ' "X68) Abu Yusuf further C
claimed, Ali,

(69)
the fourth Caliph, made it a habit not to relate ah aadith from the Prophet.
 -40-

On the problem of the evidence of one witness together with

the oath of a plaintiff, the Iraqis do not accept the relevant hardith,

because, according to them it contradicts the Qur'an (2,282). jassäs

calls this procedure an addition to the Qurlan, which if accepted is

termed naskh. He remarks that the ruling of the verse in question

(70)
cannot be combined with the witness and the oath of a plaintiff.

According to the verse, the minimum number for the admissibility of

evidence is two men or one man and two women. Malik and Shäfici
(71)
endorse the procedure. The former supports his doctrine with

systematic reasoning and the established practice of Medina. The

(72)
latter accepts the authenticity of the haadi-th and produces the full

isnäd.

The hadith narrated by Qurza b. Kacb is tendentious and serves

to vindicate the Iraqis' abandoning of the hardith and resorting to the

explicit meaning of the Qur'an. Shafici calls this: rejecting the

(73)
hadith by comparing it with the Qur'an (vltall I,cc,öýc3ti:. l).
ýýJl`Jtý,

The Medinese also reject dith when it contradicts

a ham, the

Qur'an. on the issue of whether marriage remains valid when one of a

non-Muslim married couple accepts Islam before the other, they reject

hadith Shafii c bases his doctrine. Shäfic1 blames

the mursal on which

them by saying: "You are among the people who do not know ahadith

or else you know them but reject them by interpreting the Qur'an in your
(74)
II
favour.

The anti-traditionists, in order to reject traditions propounded

a formula, according to which the Qur'an could abrogate the sunna.

 -41-

Shäfi i did this formula because

not consider as appropriate in this
(75)
way, he argued, the whole sunna might be abandoned. The

followers of hardith, in turn, put forward the counter formula: the

sunna prevails over the Qur'än but the Qur'än does not prevail over

the sunna. Whether these formulae were put into circulation before

or after Shäfici is a subject for further debate. According to

(76)
Goldziher, "the power attributed to the sunna as the normative

principle in the Muslim life is as old as Islam. Already at the end

of the first century the principle was formed: 'the sunny is the judge
(77)
of the Qur'an and not vice versa', " A1-Nahhas has also counted

one group which in the past (i. e. before fourth Islamic century) held the

view that the sunna abrogates the Qur'an; the Qur'an does not abrogate
(78) (79)
the sunna. In connection with this we have already quoted above

that Abu Yusuf admits that the sunna can prevail over the Qur'an as the

wiping of the shoes abrogated the Qur'änic injunction of ablution

(5,6). The Mälikis c

allow mash ala al-Khuffain only to travellers.

Shafic1 warns them that your Master (Malik) accepted the practice.

had produced CAbd Allah

Malik hadith on the authority of Näfic and b.

CUmar
Dinar that ibn came to Ku-fa and disliked the practice of mash

approved by the governor Sacd b. Abi Wagqäs. The latter referred the
(80)
former to his father who declared it valid. The Egyptian Medinese

went one step further by saying: "We do not like the mash either for
(81)
those in residence or for those travelling. " Shäfici says: "You

neglect the sunna of the Prophet and the practice, of his companions,

how then can you hold that you follow the sunna and the practice. "X82)
 -42-

Shäfici accepts the practice of mash and refutes the doctrine of

those who held that the Qur'an (5,6) has repealed the sunna (mash

Gala (83)
al-Khuffain). According to him the sunna never contradicted

the Qur'an. He claimed that if the sunna was abrogated by the Qur'an,

the Prophet immediately introduced another sunna in order to indicate

(84)
that the sunna abrogated the sunna. Hence both formulae

recorded above reflect the counter attacks made by the rival factions

and, therefore, must have started before Shafici and continued after

him. However, the origin of these formulae is obscure.

Another argument used by the anti-traditionists for rejecting

the ahh dith was that they contradicted each other and the Qur'an. Ibn
(85)
Qutaiba produced ahaadith which according to the anti-traditionists

were in contradiction. The Iraqis were keen to find contradiction in

the traditions and if one disagreed with their doctrine they rejected it.

dith of cA'isha "They,

For instance, they rejected the ham who said: the

believing women, were in the habit of performing the Fa ar prayer with

the Prophet; then they went their way in the half light, wrapped up in
(86)
their robes and unrecognised by anyone.. According to them this

hadith was contrary to the hadith in which the Prophet said: "Start

your Fajar prayer at day-break, for its performance at this time is the
(87)
most rewarding to you. , They maintained that it was possible to

Shäfi i
choose one of the two contradictory situations. follows the

former tradition and gives reasons. He says that if there is a tradition

CR'isha's
contrary to tradition, we must accept her tradition, for her

tradition should be the standard according to which we make our choice.

 -43-

So, whenever traditions are found to be contradictory, we should

choose the one for which there is valid reason which makes us

believe that it is more reliable than others. His interlocutor asked

($$)
him what would that reason be? Shafici replied: .,It is that one

of the two traditions should be more consistent with the meaning of

the Qur'an and in case there is no relevant text in the Quran, we shall

choose the more reliable of the two ahä dith, the one related by an

authority better known as an expert in transmission and who has a

greater reputation for knowledge, or at least better memory, We choose

the tradition related by two or more authorities in preference to one

related by one authority, or the one which is more consistent with the

general meaning of the Book or with the other sunnas of the Prophet. "

The Iraqis felt no hesitation in allowing the ahh dith of the

(89)
companions to override the ahädith that came down from the prophet.

Their argument was that the companions were the people best informed

about the sunna of the Prophet. The Medinese adopted the same

attitude. Their argument was the same as that of the Iraqis, that the

Prophet's companions were more knowledgeable than anyone else. An

example is traced on the problem of how many times one has to raise

the hands for prayer. The Maliki representative disputes with ShäfiCi
(90)
and eventually rejects the hadith on which Shäfici bases his doctrine.

jassäs solves this problem differently. He says: "If two reports are in

contradiction and there is a possibility that one of them is mansukh

and the people of knowledge agree as to which of them is abrogating,

their consensus indicates that the reports on which they agree is later
 -44-

than that on which they disagree. " He concludes, the hadith

CAbd Allah b. Massüd

reported on the authority of and Barra' b.

cAzib
was later than the haadith in which the Prophet is believed to
(91)
have raised his hands three times in a prayer.

The anti-traditionists had ith

rejected a when it contradicted
(92)
reason or logical proof. Ibn Qutaiba gives examples where a

hadith was contrary to reason according to ahl al-Kalam. He also

acquaints us with the hostile attitude of the traditionists against

ahl al-Ra'y. The traditionists main aim was to oppose Abu Hanifa

who is believed to have made legal decisions on his own discretion.

We found Auzäci saying: "I do not object to Abu Hanifa because he

uses ray as I use it, but whenever a hadith is known to him he forsakes
(93)
Ishäq b. Rähawiya, a traditionist, claims that ahl al- Ra'y
(94)
forsake the Qur'an and the sunna of the Prophet and use i as instead.

A clear example of this occurred in the tradition of the Prophet abouta

slave whose masters are manifold and one of them manumits him. The

Iraqis abandon haTdith and use analogy - according dith

to the ham the

master who frees his slave should pay the total price if he owns property,

otherwise the slave would be partially free. The Iraqis do not accept

partial freedom and give the slave an opportunity to earn so that he

could buy his freedom from the other masters. They base their doctrine

on the analogy with the problem of inheritance where the partially free
(95)
slave is not entitled to inherit nor is he to be inherited. Hadith

was ignored by Abu Hanifa in numerous cases. The following example

shows that reason prevailed over the hadith. According to the tradition
 -45-

Khums (one-fifth) is imposed on whatever is produced or taken from

the sea, like ornaments. Abu Hanifa and ibn Abi Lai1ä used to say:

"Nothing is leviable on the ornaments because they are like fish. "(96)

(This might be the tafsir of Q. 16,14).

The home of sunna, Medina, was not free from the use of ray.

Malik narrates ahaadith but judges them from his own personal viewpoint.
CAsr
He narrates aha ith in which the Prophet had combined Zuhr and

cIsha' But
and likewise, Maghrib and without any particular reason.
(97)
Malik reports: "I think it probably happened on a rainy day. " The

Medinese narrate ahadith which describe the way in which the Prophet

and the early caliphs used to recite long chapters of the ur'dn in the

Fajar and Maghrib prayers but they do not follow these traditions,
(98)
because, according to them to do so would cause hardship. The

expressions like ' and ' sal' are easily found in the

Muwatta'. On the problem of destroying property in an enemy's

territory, Shafic1 explicitly says that Malik uses his opinion and
(99)
abandons hadith.

The opponents of ShafiC1 argued that an isolated tradition could

not be accepted as authenticated unless it was related by two reliable

and trustworthy authorities as was the case with legal evidence.

in which cUmar demanded

This argument referred to a tradition the

testimony of another person to confirm a report of a single individual

(100)
concerning a decision of the Prophet. Shaft i's answer to this

cUmar
objection was threefold. Firstly, wanted to be more careful

because the narrative of two makes the case stronger. Secondly, it

 -46-

CUmar
was possible that the transmitter was not known to and he

wanted to confirm the report. Thirdly, it was possible that the

cUmar
information related to was unacceptable and he rejected it so
(101)
that someone else could verify it. In addition to that, ShäfiC

cUmar had
provided some instances where accepted isolated
(102)
traditions. Further, Shäfici argued that the number of witnesses

demanded for legal evidence was not always two. He quoted a

in which cUthmän
tradition was said to have accepted the evidence of
(103)
one woman concerning the decision of the Prophet in a legal case.

Similarly, he produced a haadith in which Zaid b. Thabit was made to

°Abbas
ask ibn whether a woman who has begun to menstruate should

from the pilgrimage before visiting the Kaoba? Ibn CAbbäs

return

referred the former to a woman from the Ansar and thus the decision
(104)
was confirmed on the witness of one woman. Shafici tried to

compel his opponents to recognise the authenticity of Khabar al-Wähid,

but they did not change their attitude and went one step further by
(105)
calling ignorant those who accepted the Khabar al-Infiräd. Abu
(106)
Yusuf warns against isolated traditions, considers them irregular

' 31.. ' and urges against accepting them. Shaibani explicitly
__

remarks 'because the majority is not in favour of isolated traditions,

(107)
we do not accept them. ' According to jassäs Khabar al-Wahid

as an addition to the Qur'an cannot be accepted. He maintains that

Khabar al-Wähid is of three kinds. Firstly, it is narrated by a reliable

person and was not disapproved of by any of the predecessors. It is

acceptable provided it is not in contradiction to the Qur'an. Secondly,

 -47-

it is narrated by a person whose reliability is unknown, but is

further narrated by a reliable reporter. This ha dith is accepted

it is not contrary to i äs. Finally, it is narrated by a

provided

well-known authority but the authority is accused of committing

mistakes. This report is also accepted on the condition that it is

not contrary to Qiyis. However, if this report has been accepted by

(108)
any of the predecessors, it then enjoys priority over i äs.

jassäs clearly points out that Khabar al-Wähid cannot abrogate the
(109)
Qur'an and sunna. The Medinese also reject Khabar al-Wähid

on the grounds that their consensus takes precedence over it. The

Medinese, however, were inconsistent in their arguments. This gave

Shaft 1 an opportunity to accuse them by saying: "If you object that

this is an isolated, tradition then what do you think of all those cases

where you yourself rely upon them? Either the Khabar al-Wahid is a

reliable argument or it is not; if it is not you must discard all those

(110)
cases in which you rely on Khabar al-Wahid. " It is obvious that

Shäfici wanted to establish his doctrines on the basis of Khabar al-

Wahid, therefore, he urged the adherents of the ancient schools to

accept it as hujja. He did not discard any such haTdith, if, according

to him, it had come from the Prophet. He accepted ahh dith when they

were narrated by a reliable and trustworthy authority. His only

concession was that the isolated tradition was inferior to a unanimously

recognised sunna and did not provide absolute knowledge. However, it

(111)
could be taken as a basis for action.
 -48-

Shäfi i
and the sunna.

Before we discuss Shafici's concept of sunna, it would be

very useful to underline the concept of his predecessors regarding it.

We have already seen that Shafici's predecessors felt no hesitation in

allowing the traditions of the companions to supersede the traditions

of the Prophet. We have put forward their reasons for doing so.

Here we are confined to the way in which the sunna was understood

by Shäfici's predecessors.

Records indicate that according to the ancient scholars the

concept of the sunna was not restricted to the traditions of the Prophet

but indeed also the traditions from the companions and, in the case of

Malik, the practice set by the people of Medina. Addressing his

(112)
Egyptian opponent Shafici says: , You claim to establish the sunna

in two ways, one is to find that the authorities among the companions

of the Prophet held an opinion that agrees with the doctrine in question

and the other is to find that men did not disagree on it. You reject it

(as not being the sunna) if you do not find a corresponding opinion on

the part of the authorities or if you find that men disagree. " This can

be exemplified as follows. On the problem of ShufaC (pre-emption)

Malik produces a ham

dith, according to which the Prophet allowed this

practice. He then reinforces the hadith by producing Sac-id b. al-

Musayyab's opinion. Sacid was asked, "is there any sunna concerning
(113)
it? " He replied, "Yes, Shufac is applicable to houses and lands. ýý

Malik sometimes verifies the sunna byI jmäc. In the case of the

mutaläcinän (husband and wife cursing each other) he gives the verdict
 -49-

that after Licän (sworn allegation of adultery committed by either

husband or wife) they should never be re-united. He points out

that, "this is the practice about which there is no doubt or

(114)
disagreement among us. " Further, Malik uses the term 'sunna

of all Muslims. ' This is an expression which denotes the practice

set up by the Muslims but, in fact, it conveys the meaning of that

practice which is restricted to the people of Medina. Malik's use

of the term sunna in the sense of the established practice in Medina

becomes obvious when we find the following expressions: 'the sunna

(115)
has established, ' the agreed practice' and our practice. '

These expressions are used interchangeably in the Muwatt a' in order

to indicate that there was an established practice of the people of

Medina. Nevertheless, it should be noted that whenever I mäc was

claimed to have occurred, it owed its origin to the personal opinions

of the scholars. In other words, sunna was derived from I mac which

in turn was derived from an opinion. The following example serves

to clarify this statement. The problem concerns the penalty in the

event that a slave who steals something from his master -whether or

not his hand should be amputated. The Medinese held that if the

ruling authority refuses to cut off his hand, the master is entitled to

do so. They base their doctrine on the Ijmac which owes its origin
cUmar, CUmar cUrwa
to the opinions of ibn and b. Zubairý116) The

argument in favour of established practice was that it was more reliable

than an isolated tradition. It was held that a tradition is narrated by

one or two or at the most six persons while the practice was known to
 -50-

thousands of people. The Medinese opposition to a ha dith in

favour of practice is obvious from many cases. Malik rejects the

legal doctrine of Khiyar al-majlis in which the right to repudiate the

contract is granted to the contending parties only while they are

(117)
present at the place of contract. He says: "We have no such

practice and specific rule for thisdespite the existence dith

of haT, on

the subject. Further, their reliance on practice is understood by the

following Muhammad b. Abi Bakr b. Muhammad b. CAmr b.

anecdote.

Hazm (d. 132/749), judge of Medina, gave judgement against a

When he came home, his brother cAbd Allah b. Abi Bakr

tradition.

asked him, 'You have given judgement contrary to the tradition while

the tradition was enough upon which to base the verdict. ' The former's

reply, 'Alas, what of the practice' meant that the agreed practice of
(118)
Medina was more acceptable than the hadith. There were

numerous cases where Malik quoted opinions of the companions and

the successors but decided in favour of the practice. For example,

he rejected the opinion of Sacid b. al-Musayyab that the compensation

for causing an injury to some part of the body was one-third of the

compensation which would be payable for the whole body. Malik

argued that agreed practice was contrary to Sac-id's opinion, therefore,

(119)
the Imam should decide according to his own discretion.

The term sunna occurs in the sense of religious established

practice in the arguments of Iraqis. They accepted the doctrine on

cUmar, ibn cUmar cAbbäs
which and ibn were of one view that one
(120)
should prostrate when reciting Q. 22,18. In another situation
 -51-

when the defendant refuses to take an oath, the Iraqis give judgement

in favour of the plaintiff although the latter does not provide legal

proof. They clearly say: "We do so on account of the sunna; " i. e.

(121) (122)
practice. Abu Yusuf is of the opinion that if a Muslim

judge orders the killing of captured children, women and slaves who

do not take part in war, his judgement will be wrong and against the

practice. Regarding the land of Basra and Khurasan, Abu Yusuf says,

"They are like the territory of Sawäd. " He does not want to

differentiate between the two lands but when he finds the practice of

the early Caliphs contrary to his own opinion, he suggests that the

practice should prevail over his opinion and be followed as a normative

(123)
precedent.

It could be said that according to the ancient scholars the local

community was a source of law because it conveyed and preserved the

normative practice (sunna). Therefore, it was easy to set aside a

hadith from the Prophet which did not conform to the general practice

of the community. However, it should be noted that this sort of

attitude was merely a device used to refute the opponent's ideas and

to ratify their own ideas. They were inconsistent in their arguments.

This gave an opportunity to Shafici to criticise them. Addressing his

(124)
Egyptian opponent he states: "You relate an authentic tradition

from the Prophet; you relate two traditions from the companions, but

reject them because they are not in favour of your practice. Whose

practice do you follow when you diverge from the sunna of the Prophet?

I have not understood what you really mean by practice. " To refute
 -52-

he quoted an example cUmar

the idea of practice, of ibn who gave up

the practice of Mukhäbara (the lease of agricultural land for a share

of its produce) when a haadith in which the Prophet prohibited this

him. Shafici cUmar

practice reached shrewdly pointed out that ibn

neither used his opinion nor said: "nobody has so far reproached us
(125)
for this and we have been practising it until now. °

Shäfici restricted the term sunna to the usage of the Prophet.

To establish the claims of the sunna he argued that acceptance of it

was equivalent to belief in the Prophet himself. The ahl al-Kahm

had accepted the primacy of the Qur'an over all traditions. ShafiC

used the Qur'an as evidence to compel them to accept the claims of

(126)
the sunna. He quoted several Qur'änic verses and stated that

they impose obedience to the Prophet in all matters. It should be

observed, however, that none of these verses referred to an obligation

to accept the authenticity of the ahh dith of the Prophet. Let us

examine some of them.

Q. 59,7 reads: "Whatsoever God granted (as spoil) to His

Prophet from the people of settlements, is to be divided (i. e. to be

used for such a purpose allowed by God), the Prophet of God, those

near to him, the orphan, the poor and the way-farers; so that it will

not come under the control of the wealthy among you. Whatsoever the

Prophet gives you, take it; what he prohibits, cease demanding. " The

verse clearly speaks about the booty and enjoins the Muslims to accept

what the Prophet has given them and to desist from asking for more.

Shäfici cleverly quotes the last part of the verse (L., y. ay4" L-I l. '
 -53-

6wI! )
a;c t5Lv, and argues that the verse manifestly obliges us

to accept the instructions of the Prophet as laid down in the ha

adth,
(127)
i. e. it refers to the obligation to accept his sunna.

The verse is also used by the scholars in their arguments to

(128)
maintain that the sunna can abrogate the Qur'än. This sort of

trend shows us how the scholars employed the Qur'änic verses in

favour of their doctrines.

i's
Shafi second argument goes to Q. 33,36: "It is not fitting

for a believer, man or woman, when God and His Prophet have come to

a decision on a matter, to have any choice therein. " The verse, if

read in context, clearly shows that it has nothing to do with the

authenticity of the haadith or sunna. Vv. 28 and 29 commanded the

Prophet to tell his wives that if they wanted a worldly life, it would

be granted to them; if they dedicated their lives to God, the Apostle

and the Hereafter, their reward would be great. Vv. 30 and 31

informed the consorts of the Prophet that if they were guilty of an

abomination, their punishment would be doubled; if they devoted

themselves to God and His Prophet, their reward would be granted

twice. Vv. 32,33 and 34 instructed the Prophet's wives that they

were not like ordinary women. They were obliged to pray and give

something to charity; they should recite what was rehearsed to them

in their houses. V. 35 informed all Muslim women that if they were

good in deeds, they would be rewarded. V. 37 described the story

of Zaid b. Härith's marriage with the Prophet's cousin Zainab bt. jahsh.

It told how Zaid divorced Zainab and she was married to the Prophet by
 -54-

God's permission. According to the exegetes verse 37 referred to

the marriage of Zaid to Zainab. She had opposed the proposals of

her marriage to Zaid because according to her Zaid was lower in

status than she was, but when God revealed Q. 33,36, she accepted
(129)
the proposal. Shafic1, however, considered that v. 36 was

non-specific and argued that the sunna of the Prophet embodied in

a hardith must be applied. He particularly referred to the hadith in

ibn cAbbäs
which was asked whether one could pray two Rakcas after
°Asr (130)
the prayer to which he replied, 'no' and quoted verse 36.

Shäfi% s great achievement was that he systematized the

sources of law and laid down the exact limits within which each might

be used. He defined the sunna, as we have already pointed out, as a

source of law only when it came down from the Prophet. He quoted in

this connection the combination of al-Kitab wa-1 hikma which appeared

(131)
in so many passages of the Qur'an. ShaficPs interlocutor asked

him, "We understand by the "Book" that it is the Qur'an, but what do

you mean by al-hikma? " Shafic-i replied: "It was the sunna of the
(132)
Prophet. " He further asserted that the sunna of the Prophet was

Divinely inspired. According to him, apart from the wahr which

Gabriel recited to the Prophet, there existed yet another kind of wahy

which the angel, by God's command, put into the Prophet's heart. This
(133)
latter type was called the sunna. ShäficPs reference to the

sunna, as Divinely inspired clearly demonstrated that he desired to

compel his opponents to accept the authenticity of the sunna, but he

did not realise that his opponents were not worried about the authenticity
 -55-

of the sunna, it was the report which embodied dith,

ham that they
(134)
were talking about. His interpretation of hikma, however,

did not pass unnoticed. He was told that the 'Book' and hiTkma were

Qur'an. 'No', i
two names for the same thing - the Shafi replied

and insisted that they were two separate things - the Qur'an and the

sunna. His reference again went to the Qur'änic verses which he had

already quoted in order to support his doctrine that acceptance of the

sunna was the same as belief in the Prophet himself. Moreover, he

quoted Q. 33,34: "Do repeat (0 wives of the Prophet) what has been

recited (mss--ý) in your homes from the verses of God and the hikma. » .

When he was reminded that the verb did not normally apply

to the sunna, he answered, "u--4 means to pronounce

therefore, it could be applied in the same way. ýý135) Shafici's claim

that hikma was the other name for the sunna might not be convincing,

because the Qur'an itself bore testimony to the fact that the hikma
(136)
was granted to other Prophets and even to the persons other than
(137)
the Prophets. Shafici's main quarrel with the Malilos was

however concentrated on their attitude to the relation between the

sunna of the Muslims and the hardiths from companions on the one side

and hadiths from the Prophet on the other.

Concerning the abrogation of the had h, Shafi°i claimed that

only a hadith from the Prophet could override another had ith from the

Prophet, because a hadith from a companion was not equal in nature

dith from the Prophet.

to the haT His thinking is expressed in the

following statement. "Nothing is equal to the sunna except the sunna

 -56-

of the Prophet, since God has never given to any other human being

the power He gave to the Prophet. He commanded men to obey the

Prophet and made his orders binding upon them. Thus all men are

his followers. He who follows shall never depart from what he was

ordered to obey, and he who is under obligation to obey the sunna of

the Prophet shall not refuse to obey it, because he is not empowered
(138)
to abrogate any part of it.,, Shäfic1 accepts a hasdith when it

is handed down from the Prophet. He accepts a ha dith of the companion

when there is no haTdth available from the Prophet, but preference is

given to ahh dith of the first four caliphs. Shafiol's theory of traditions

can be understood by this statement. "One authentic haadith overrides

another authentic hadith. If there are two authentic traditions and

abrogation cannot be applied, the one which is more reliable should

be accepted. In the case where both are reliable the one which is
(139)
closer to the meaning of the Qur'an enjoys priority. °

Shäfici, in fact, does not readily accept the abrogation. He

argues both the traditions have come down from the Prophet and are equal

in nature. Let us see how Shaficli justifies his theory of abrogation.

 -57-

CHAPTER FOUR

THE PRINCIPLES OF ABROGATION

Shafici's principles of abrogation.

ShäfiCi maintains that some of the rulings of the Qur'an and

of the sunna are abrogated. The rulings are abrogated, because God

wanted to bestow mercy upon His creatures, to lighten their burden

(l)
and to comfort them. He also, as will be shown, discusses the

theory of naskh between the Qur'an and the sunna. He claims that

they do not and can not supersede each other. He states that the

Qur'an supersedes only the Qur'an and the sunna supersedes only the

sunna. The function of the sunna, he believes, is to follow what is

laid down in the Qur'an and to explain what is meant by the general
(2)
communications of the Book. In support of his view Shäfi°i lists

some Qur'änic verses, which according to him, clearly speak about

the abrogation of the Qur'an by the Qur'an alone. He refers to Q. 10,15

in which God says: "When our clear verses are recited to them, those

who do not look forward to meeting us, say: Bring a scripture other

than this, or change it. Say (0 Muhammad) it is not for me to alter

it of my own accord. I follow only what is revealed to me; verily,

I fear, if I disobey my Lord, the punishment of a Great day. " According

to Shafici, "It is not for me to alter it of my own accord" clearly

indicates that for him nothing can abrogate the Book of God except His

Book itself.

It should be noted that scholars could not accept Shäfici's

 -58-

interpretation of the verse. Ibn Hazm(3) said: "We did not say

that the Prophet altered the verses of his own accord -a proponent

of this belief would be an unbeliever - the Prophet altered the verses

by an inspiration (w,ahy) from God as He commanded the Prophet to

say: 'I follow only what is revealed to me. ' The verse informed us

of the abrogation of the wahr by the wem. Since the sunna was

wem, it could abrogate the Qur'an and vice versa. " Shäfici himself

acknowledged that some scholars have maintained that there was, in

this communication, some evidence that God has empowered His

Prophet to speak of his own accord, but only by His Divine aid, on
(4)
the matters where He had not provided Qur'änic communication.

Shäfici further supports his doctrine by interpreting Q. 2,106

in its favour. The verse, according to him, reads: "For whatever we

abrogate or defer of the Qur'änic communication, we bring a better or

similar verse to it. " Concluding, he remarked that God has made

abundantly clear that abrogation or deferment of the Qur'än cannot be

made possible except by another Qur'anic communication, as He says

in Q. 16,101: "When we substitute one verse for another, Allah knows

best what He reveals, they say: You (Muhammad) are but a forger. "

ShaficPs opponents interpreted the same verse to indicate that

the Qur'an could be abrogated by the sunna and the sunna could be

abrogated by the Qur'an. When they were reminded that Shafici

insisted that Q. 2,106 mentioned only the Qur'än's abrogation by the

Qur'an, as it said: We bring better or like thereof, " and the sunna

could never be considered better than the Qur'an, they replied, that
 -59-

the sunna also came down from God; as He said: "He (the Prophet)

does not speak on his own account but from what is revealed to him"

(Q. 53,3-4). Further God did not mean to say that He proposed to

bring a second verse superior to the first; no part of the Qur'an was

superior to any other. He meant to state that He would make a ruling

superior to the first in the sense of its being easier to perform, or

(5)
richer in terms of reward. According to Jassäs, Q. 2,106 indicated

that naskh occurred in the Qur'än. It did not indicate that the

Qur'anic verse would be abrogated by a better or similar Qur'anic

verse, since nothing prevented us from understanding from the verse

that abrogation might be achieved by the sunna which was revealed to

the Prophet, and this, he argued, was the precise meaning of the

verse: "we bring better or like thereof. " jassas went one step further

by claiming that the ruling of the sunna might be better than the ruling
ý6ý
of the Qur'an.

Shafici has also exploited the verse in question in order to

point out that no companion of the Prophet was similar or superior to

the Prophet. Therefore, the traditions of the companions could not

override the traditions of the Prophet. Thus, he refuted the idea of

his predecessors that the companions ahädith, in certain cases, set

aside the traditions of the Prophet. These interpretations suggest that

Shäfici was compelled by the circumstances prevailing in his time to

interpret the verses in this way. His theory of abrogation, therefore,

conveys two clear meanings. Firstly, if he accepted that the sunna

could abrogate the Qur'an, the Qur'an party (ahl al-Kaläm) would
 -60-

certainly reject his view appealing to "na'ti bi khairin minhä aw

mithliha, " because, according to them, the sunna was not equal to

the Book of God. The Qur'an had definite superiority over the sunna.

Secondly, if he claimed that the Qur'an could abrogate the sunna, it

would mean that contradiction existed between the two sources, while

his main aim was to maintain that contradiction never existed between
(7)
the Qur'an and sunna.

- C7
Shaft i(8) declared that "nothing could abrogate the sunna save

another sunna of the Prophet. If God were to address His Prophet on

a matter on which the Prophet had provided a sunna different from that

which God addressed to him, the Prophet would immediately provide a

second sunna in conformity with whatever God had communicated to

him. In that way he would make clear to men that he had provided a

sunna that abrogated an earlier one being contrary to it. " When

Shafici was asked for evidence "Since the Qur'an could abrogate the

Qur'an because there was nothing at all to match the Qur'an. Could

you possibly provide evidence in the sunna - that the sunna abrogates

the sunna? " Shäfi°i remarked that the evidence lay in his earlier

statements, in which he had pointed out that God enjoined upon men

to obey the commands of His Prophet, since the sunna emanated from

God and whosoever obeyed it, obeyed the Book of God. We did not

find, said Shafici, any other order which God made incumbent upon His

creatures, except what was in this Book and in the sunna of the Prophet.

If it was considered that nothing else said by a human being was equal

to the sunna, nothing could abrogate it but another of equal status.

 -61-

God did not empower any human being as He empowered His

Prophet. Indeed He made it incumbent upon His creatures to follow

the Prophet. Therefore, everyone who was a follower of his would

never disobey what he had been ordered to obey, and he who was

obliged to obey the sunna would not refuse to obey it, because he

was not empowered to abrogate any part of it.

(9)
jassas has vehemently criticised the statement of Shafici

mentioned above. He openly declared that Shafioi's elaboration on

this point was full of confusion. According to him, in saying:

"nothing can abrogate the sunna of the Prophet except another sunna

of the Prophet, " Shäfici maintains that the sunna cannot be abrogated

except by another sunna, yet in his following statement ("If God were

to bring forth to His Prophet a communication on a matter on which the

Prophet had provided a sunna different from what God brought forth to

him, the Prophet would immediately provide a sunna in order to make

it clear that his second sunna abrogated the earlier one or if contrary

to it") Shäfici accepts the possibility that God can abrogate the sunna.

Thus, according to jassäs, Shafici himself has contradicted his own

statement that only the sunna abrogates the sunna. jassäs was

questioned by his interlocutor as to whether or not Shäfici did necessarily

mean that God would produce a communication through the Qur'än. He

might produce one by way of the sunna wah ). jassas asked, what was

the meaning of this statement: "The Prophet would introduce a (second)

sunna? " Moreover, said jassäs, Shäfici himself has admitted this,

when he was asked whether sunna could be abrogated by the Qur'an?

 -62-

and replied: "If a sunna were abrogated by the Qur'an, another

sunna must have been laid down by the Prophet in order to make it

clear that his earlier sunna was abrogated by his later sunna, so as

to demonstrate to men that an act could be abrogated only by a

(1 0)
similar act. " Shafici allowed the sunna's abrogation by the

Qur'an because the Prophet made it clear that his earlier sunna was

abrogated by the intervening Qur'an. Further, in the statement:

"The Prophet would immediately provide another sunna, " there was

an acknowledgement that God abrogated the sunna because the first

sunna already existed when God revealed His command. If the

second sunna, which the Prophet has to introduce in order to make it

clear that his later sunna abrogated the earlier one, was considered

to have emanated from God, how then could God abrogate the ruling

which He had already abrogated (by the Qur'an)? How would the

abrogation of the ruling which was already abrogated be possible?

Shäfici in his doctrine that the Prophet's sunna could be

abrogated only by another sunna of the Prophet, has clearly shown his

awareness that if he accepted the sunna's abrogation by the Qur'an, it

(11)
would mean that every sunna would be argued away. He argued

that all kinds of sales which the Prophet has made unlawful, could

be considered as lawful according to Q. 2,276: "God has permitted

selling and forbidden usury. " The same might be held true about the

stoning of adulterers - that this was abrogated by God: "The fornicatress

and the fornicator, scourge each of them with a hundred stripes"

(Q. 24,2). The tradition concerning the wiping of the shoes might be
 -63-

abrogated by the instruction on ablution (Q. 5,6): 110 you who

believe: When you rise up for prayer, wash your faces, and your

hands up to the elbows, and rub your heads and (wash) your feet

up to the ankles. "- Similarly, he concluded that a quarter of a

dina as the minimum value of stolen goods required for amputating

the hand of a thief would be considered as abrogated by Q. 5,42:

"the thief, male and female, cut off their hands. "

Shäfici was always of the view that the sunna never contradicted

the Qur'an. The role of the sunna was merely to state which of the

Qur'anic rulings were abrogated and which were the abrogating. This

could be explained as follows. God had imposed a certain duty for

prayer before the obligation of the five prayers. The duty was

introduced in Q. 73,1-4: "0 you wrapped up in your raiment. Keep

vigil the night long, save a little, a half thereof, or abate a little

thereof, or add a little thereto and chant the Qur'an in measure. "

God, according to Shäfici, abrogated this duty by the following v. 20:

"Your Lord knows how you keep vigil sometimes nearly two-thirds of

the night, or a half or a third thereof, as do a party of those with

you. Allah measures the night and the day. He knows that you are

unable to count it so He has turned to you with mercy. Recite, then,

from the Qur'an that which is easy for you. He knows that there are

sick folk among you, while others travel in the land in search of Allah's

bounty, and others are fighting for the cause of Allah. So recite what

is convenient of it and establish regular prayer and pay the poor what

is due, and so lend to Allah a goodly loan. " According to Shafici,

 -64-

the ruling: "You stand up nearly two-thirds of the night " is

...
(12)
clearly abrogated by: "So, recite what is convenient of it. "

Shafioi, after concluding this, was not sure whether the latter ruling

was still applicable. If the latter ruling was in turn abrogated, then

the abrogating ruling must be: "And some part of the night awake for

it, as a work of supererogation for you; it may be that your Lord will

raise you up to a laudable position" (Q. 17,79). He further said:

"This duty might be similar to the duty: 'to recite what is convenient

of it. ' " However, he has to find proof from the sunna in order to

make sure that the ruling was abrogated. Luckily, he was able to
(13)
trace a hadith which runs: "A tribesman from Najd, excited and

crying, whose voice was hardly intelligible until he came to the

Prophet's company, was really inquiring about Islam. The Prophet

said: 'Five prayers were prescribed every day and night. ' He asked

if there was any other obligation upon him. The Prophet said: 'No,

not unless you volunteer and then mentioned the fasting during the

month of Ramadan. ' He enquired if there was any other obligation

upon him and the Prophet repeated the same answer. The man went

away saying: 'I shall neither add to nor lessen any of these obligations. '

Thereupon, the Prophet remarked that he would be successful if he

kept his promise. " Shafici concluded that only the duty of five prayers

was obligatory and that any earlier obligatory prayers were abrogated

including 'what is convenient of the Book. ' It must be observed that

this way of strengthening the claim of abrogation by use of the sunna

was an attempt to demonstrate that the sunna always distinguishes the

 -65--

näsikh from the mansukh. This method was not acceptable to

(14)
jassäs. He criticised Shafici saying: If we accepted that the

sunna always indicated the abrogation, then there would be no naskh

in the Qur'an unless there was a sunna to indicate so. This would

be impractical because there were numerous cases in the Qur'an

where there was no sunna to so indicate. " However, jassas did not

provide any examples in illustration.

(15)
Shäfici, according to Hamadhäni, was the first scholar

who systematized the principles of naskh. This reveals that the

principles of naskh were already in operation. These principles were

indispensable for the scholars, because, in this way, they could

easily set aside the sources which did not agree with their doctrines,

and at the same time they could adopt the sources which supported

them. Shafici, as an usuli, therefore, could not ignore them. He

accepted, refined and justified them on the basis of certain Qur'anic

(16)
communications which we have mentioned above. Shäfici always

stressed to the scholars that they should find evidence which enabled

them to judge which of the two contradictory sources was abrogated;

otherwise, they would remain confused about the meaning of the

Qur'an. Mentioning Q. 2,180 and 240 which impose bequests in

(17)
favour of parents, relatives and wives, ShafiCi says: "Then God

provided legislation for the inheritance of parents as well as for near

relatives and for the inheritance of the husband from his wife and wife

from the husband. " The verses, according to ShafiC convey one of
,

two possible meanings: Either the parents, relatives and wives

 -66-

benefit from the estate by means of bequest and inheritance together,

(18)
or inheritance abrogates bequests. Since both interpretations

are possible, scholars must seek evidence first in the Qur'an, as to

which of the two is valid; if they cannot find this in the Qur'an, they

should search in the sunna. If such evidence is found, it should be

accepted. In other words, the principle of naskh must be consulted.

There is no doubt that Shafici inherited the principle of naskh

from his predecessors, but his main aim was to establish the universal

authority of the sunna. In order to maintain this standard, he simply

could not reconcile himself with the procedures of his predecessors,

i. e. he could not accept their doctrine that the Qur'an abrogated the

sunna and the sunna abrogated the Qur'an. He strongly emphasized

that naskh operated within the sunna and within the Qur'an. The

verses he quoted in this connection meant that only God (not the Prophet)

abrogated His commands. The clear meaning of his discussions is

that he wanted to maintain that only the sunna of the Prophet abrogated

the sunna of the Prophet. Neither the Qur'an nor the reports from the

companions abrogated the sunna.

Shäfi°i, as a traditionist, was not worried about the abrogation

of the Qur'än by the Qur'an. His principal concern was with the

abrogation of the sunna. He was afraid of the ahl a1-Kaläm who were

ready to establish contradiction between the Qur'än and the sunna, so

that they could easily reject the whole body of the sunna on the grounds

that it contradicted the Qur'an. The theory of the traditionists was

that every case of law should be referred to the sunna of the Prophet.
 -67-

This also led the early scholars to trace their doctrines from the

authority of the Prophet, but they could not do so in every point of

law. Therefore, they had to accept the authority of the companions

and the successors. But in cases where hadiths from the companions

and hadiths from the Prophet were also found, they openly argued the

abrogation of the haadiths of the Prophet by the haadiths of the

companions. Shäfici, in his time, found a mass of contradictions,

between those of a single companion, between the ham

diths of the

companions and the Prophet and between the hadiths of the Prophet

himself. He accepted the theory of the traditionists that the hadiths

from the Prophet, which he called sunna, enjoyed priority over all the

traditions of the companions. If any hadith from the companion was

to the sunna, it must be rejected. In this way, Shäfi ci

contrary was

able to solve the conflict referring every case of law to the sunna.

Consequently, the theory of the traditionists helped Shäfioi to remove

the contradictions between the had iths of the companions, and between

the hardiths of the companions and the Prophet. However, contradictions

remained within the body of the traditions of the Prophet. This was the

problem which Shafici still had to face. In order to achieve his goal,

he employed three methods. Firstly, he interpreted the sunna in such

a way that both the contradictory sunnas would be accepted and

(19)
practised. Secondly, considering both the sunnas genuine, he
(20)
rejected one on the grounds that it was the earlier of the two.

Finally, he rejected one of the two contradictory sunnas on the grounds

(21)
that one of them was weaker in isnäd.

f
 -68-

In the second Islamic century, scholars held different views

regarding the sunna of the Prophet. One group accepted the claims

made for the sunna on matters where the Qur'än was silent. This

group could be named ahl al-Hadith. The second group was not

ready to accept any argument from the sunna unless it was based on

the Qur'dn, i. e. tafsir hadith. This group might be called ahl al-Ra'y.

The third group was more rigorous, and rejected the sunna outright.

The attitude of this last group, the ahi al-Kalam, was destructive for

fabric Shaft i, therefore,

the whole of the sunna. put forward a

harmonious system mid-way between the Qur'än and the sunna. In

this respect he presented his theory of Bavän and Takhs The

function of these two theories was to support and preserve the sunna,

so that it should be made abundantly clear that the sunna always

explained the Qur'an. Shafic1 never accepted the view that the sunna

contradicted the Qur'an. He repeatedly told the Fugahä' that if one

accepted the abrogation of the sunna by the Qur'an, it would mean that

many sunna-based rules would be abandoned. His Bayan and Takh is

theory was an attempt to reconcile the two contradictory sources.

This theory of reconciliation together with his harmonious system

within the sunna, was his great contribution to the systematization of

sources in Islamic jurisprudence.

His argument that the Qur'än abrogates only the Qur'an was

also an attempt to safeguard the sunna from its rejection by the Qurän.

He stressed the claim that there is no conflict between the Qurlan

and the sunna, because it is obvious that if there is no conflict then

 -69-

there is no question of abrogation. However, if there was seeming

contradiction, it was solved by his theory of Bayän and Takhsis

Naskh implied suppression. The ahl al-Kahm were keen

to suppress the sunna by alleging its contradiction with the Book of

God. His other opponents could suppress the sunna by means of the

Qur'an and the traditions of the companions and the successors.

But Shafici could suppress the sunna only by the sunna. He could

not suppress the sunna by the Qur'an or by any other hardith from the

companions. To maintain this he introduced his special rule that the

sunna is suppressed only by the sunna and not by the Qur'an. If

God were to intervene on a matter on which the Prophet had provided

a sunna different from that which God addressed to him, the Prophet

provided a second sunna, so that it would become clear to men that

his second sunna abrogated the earlier sunna. The scholars should

accept this rule, argues Shäfici, or else the whole sunna will

disappear. In the light of his Bayan and Takhsss theory he cannot

see any contradiction between the two basic sources of Islamic law.

These were the methods applied by Shaficf in order to prevent the

suppression of the sunna by the Qur'an and by the ah th of the

companions and the successors.

The general principles of abrogation.

ShafiCi's claims that the Qur'an abrogates the Qur'an and that

the sunna abrogates the sunna strongly suggest that principles of

naskh existed in Islamic jurisprudence before the emergence of

Shäfi0 . Generally, the scholars considered that the term naskh

 -70-

(22)
implied that the later command abrogated the earlier. If this

definition is accepted then naskh in the early period expressed

supersession. Whenever contradiction was apparent the phenomenon

of naskh operated to suppress the inconsistency and thus ensure that

a single operative ruling applied in the interpretation of the Qur'än as

well as in the sunna. In every alleged instance of naskh two elements

were required: - Firstly, conflict of pronouncement between two or

more texts. Secondly, knowledge of the relative dates of the

conflicting sources. It is interesting to note that it was entirely up

to the Fugahal to decide which text was the more recent and therefore

of greater validity. Since it is evident that the jurists did not agree

on the F_igh we are left with the situation that their decisions were
,

contradictory. The concept of date was thus crucial to the principle

of naskh and therefore gained a prominent position during discussions

on particular topics between scholars. In order to ascertain the dates

of the texts under scrutiny, very often scholars would cite the names

of persons witnessing a revelation who were known to have lived at a

cAbbas' (23)
particular time. Ibn name was used frequently to this effect.

Sarakhsi(24) maintains that contradiction between the sources

is impossible, since this would mean Divine fallibility; in actuality

the contradiction is created by our very human inability to estimate

correctly the date of the texts. Once this has been done, however,

the later text abrogates the earlier. The process of dating is thus

very significant in Islamic jurisprudence. One of two conflicting

sources could not be suppressed until the jurists had found ample
 -71-

evidence of its abrogation. The conflict over the possibility of

the testimony of the ahl al-Kitab exemplifies this. Those arguing

against its acceptability produce Q. 65,2: "And call to witness two

just men among you. " Ibrahim al-NakhaO was the exponent of the
(25)
idea that the verse refers only to Muslims. Those arguing in

favour of the doctrine consider Q. 5,106 applicable, i. e. not

abrogated. The verse reads: "You who believe let there be witnesses

between you, when death draws nigh to one of you, at the time of

bequest - two witnesses just men from among you, or two others from

other than you. " It was argued that at the time of bequests members

of the ahl al-Kitab could act as witnesses. The doctrine was supported

by producing the authority of the Prophet who was believed to have said:

"Al-Ma'ida (Q. 5) is among the parts of the Qur'an, which were revealed

at a late period. Regard as halal what is halal in it and regard as

(26)
haräm what is haram in it. " Also cA' isha and Hasan were of the
(27)
view that nothing had been abrogated from al-Mi'ida.

(28)
Although Jas säs mentions that a nas ikh haadith or verse is

not difficult to recognise once a date has been established, he further

observes that often which is the näsikh verse is self-evident as it will

contain within itself an indication of its abrogating nature. He also

maintains that the reports of the companions and the successors can

be decisive in the process of distinguishing the nasikh and the mansukh .

This indicates two further elements in the history of abrogation.

Firstly, that any doctrine supported by a scholar carries the approval

of a companion or a successor. Secondly, that naskh as a principle

 -72-

was alleged to have been accepted during the lifetime of the

companions. Jassas' final criterion for determining the nasikh

from the mansukh is that of Ijmac. However, I mac itself cannot

abrogate the ruling from the Qur'an and the sunna since it came into

being after the Prophet expired. During his lifetime any disputed

case would simply have been referred to the Prophet himself.

Hamadhani(29) also mentions that the agreement of the scholars

indicates whether or not a certain ruling is abrogated. Makk i(30)

believes that only persons of sufficient knowledge can distinguish the

abrogating from the abrogated.

Ibn Hazm(31) warns that it is not lawful for any Muslim, who

believes in Allah and the Day of judgement, to say that a certain

ruling is abrogated unless he is sure of it. He cites four criteria to

be utilized to distinguish näsikh verse. Like jassäs and Hamadhani,

he asserts that agreement of scholars can indicate that a certain verse

is abrogated. Secondly, the later abrogates the earlier when the

scholars cannot agree and where the two conflicting doctrines cannot

apply together. Thirdly, it can be the case that an explicit text

showing that one of these three exists: either that a prohibition has

been issued after a command, or vice versa, or that a ruling has been
(32)
transferred from one category to another. Finally, where a third

text refers to an abrogated ruling and its age in relation to the

abrogating text is unclear; the abrogating text should not be abandoned,

since we are already sure of its abrogating nature. Ibn Hazm uses an

example to clarify this last observation. Originally, it was held that

 - 73-

during Ramadan a person who had slept and rewoken could not eat,

drink or have sexual intercourse with his wife for the rest of the

night. This ruling was abrogated when God revealed Q. 2,187:

"It is made lawful for you to go to your wives on the night of the

fast. They are a raiment for you and you are a raiment for them.

Allah is aware that you were deceiving yourselves in this respect and

He has turned in mercy toward you and relieved you. So hold

intercourse with them and seek that which Allah has ordained for

you, and eat and drink until the white thread becomes distinct to you

from the black thread of the dawn. " However, Abu Huraira reported

that the Prophet said that if some one found himself in a state of

impurity, when he arose in the morning, his fast was invalidated.

According to ibn Hazm, this haadith corresponded to the abrogated

situation, since verse 187 had already permitted sexual intercourse

until morning. He remarked that the hadith must have been abrogated

at least by inference, since the Qur'an specifically abrogates the

original ruling to which Abu Huraira says the Prophet was referring.

It is clear that ibn Hazm's principal intention was to abrogate Abu

Huraira's tradition since it was in conflict with the Qur'an which had

already abrogated a practice outwith its delineation.

For the implication of I'tý ihäd, knowledge of al-Nasikh wa-1

was considered very important. i äs, the kind of I't] ihad

mansukh

recognised by Shäfic1, cannot be exercised by a person unless he is

competent to do so through his knowledge of the commands of the Book

of God: its prescribed duties and its ethical discipline, its abrogated
 -74-

and abrogating communications, its general and particular rules

(33)
and its right guidance.

CAbd (34)
According to Abu Allah Muhammad b. Hazm, this

branch of science is one of the necessary requirements of I'tý ihäd

since the main basis of I'tý ihad is the knowledge of what has been

handed down to us; an important part of this knowledge is knowledge

of the näsikh and the mansukh; to deal with the reports as they stand

is easy and to carry their burden is not difficult. The difficulty lies

only in the techniques of deducing legal doctrine from the documents

.

Part of the investigation in this matter involves the determination of

the earlier and the later of two situations. This report conveys

twofold meaning: Firstly, the knowledge of the näsikh and mansukh

is a necessary element for Ijtihäd. Secondly, knowledge of the

Divine revelation, in its final form, depends only on knowledge of

the documents which have been handed down and on the discrimination

between the later and the earlier statements, i. e. the näsikh and the

mansukh. What has been handed down comprehends 'both the Qur'an
(35)
and the sunna. In simple terms, the naskh operates in the Book

of Allah and the sunna of the Prophet.

The general theory of naskh meant that if scholars were

confronted with two seemingly contradictory statements, on one and

the same topic of legal or ritual regulation, their first concern was to

enquire closely into the meaning of each statement. If they were

clever enough in their exegetical techniques they could remove the

contradiction. They had to try their best in order to solve the

 -75-

contradiction but only if they did not succeed in the attempt to

reconcile the two statements could the principle of naskh be applied

(36)
because al Damao yamnac al-naskh. If the scholars despaired

of reconciliation they should search for information on the circumstances

in which the particular verse was revealed. This demand was met
(37)
by introducing another science which was named asbab al-nuzul,

and producing the isnäd which went back to the companions and even

to the Prophet himself. Shafici has used this method in his discussion

of al-näsikh and mansukh.

Q. 8,65 reads: "0 Prophet, exhort the believers to fight; if

there be of you twenty steadfast they shall overcome two hundred and

if there be of you a hundred steadfast, they shall overcome a thousand

of those who disbelieve, because they are a people without

intelligence. " The following verse 66 reads: "Now Al1äh has

lightened your burden, for He knows that there is weakness in you.

So, if there be of you a hundred steadfast, they shall overcome two

hundred, and if there be of you a thousand steadfast they shall

overcome two thousand by permission of Allah. Allah is with the

steadfast. "

After producing these two verses, Shefici supported his doctrine

CAbbäs
by the statement which is credited to ibn who said, "When the

Divine communication: 'If there be of you twenty steadfast they shall

overcome two hundred' was revealed, it became obligatory for twenty

believers not to flee from two hundred unbelievers. When God revealed:

'Now Allah has lightened your burden, for He knows that there is
 -76-

weakness in you ... it became obligatory for a hundred believers

,'

not to flee from two hundred. " Shäfic1 claimed that God has made

this so clear in His communication that it does not require

(38)
explanation. His main aim, by producing this example, was

twofold. Firstly, He wanted to show that naskh occurred in the

Islamic Shari°a. Secondly, when there are two contradictory

statements the later abrogates the earlier.

ý39ý
jassäs has produced the verse in question to reject the

view of his opponents who dismiss the belief that naskh occurred in

the Qur'an. He further claimed that Q. 8,65 and 66 cannot be combined

in one situation. Therefore, the latter abrogated the former. It is

clear that jassäs could not reconcile the verses, therefore, he applied

the principle of naskh. However, there were scholars who could not

understand the abrogating nature of the second verse. They argued

that there was no commandment in this verse; it conveyed only that

God had promised victory over polytheists provided the Muslims would

be steadfast. If the Muslims fulfilled this condition the promise made

by God would be carried out. Ibn Hazm(40) argued: "whosoever

accepted the abrogation of the first verse, made a mistake because

there was neitherIjmäc nor was there any indication of abrogation.

The verses describe the rivalry with the polytheists. When the two

forces met, it was not allowed for anyone to turn his back upon the

whole population of the polytheists. The verses talk only of victory

over the polytheists if the Muslims remained steadfast. "

Before we further discuss the problem in question, let us

 -77-

(41)
examine ShäficPs claim of naskh within the sunna. Malik -
CAbd Allah b. Abi Bakr b. Muhammad b. °Amr b. Hazm - °Abd Allah

b. Wägid CAbd Allah b. cUmar who said. "The Prophet

- prohibited
CAbd Allah
the eating of sacrificial meat after three days. " b. Abi

CAmral, CAbd
Bakr said that he mentioned this hadith to daughter of

it saying: "I have heard cA'isha

al-Rahmän, who confirmed saying:

'Some Bedouin came to Mecca during the day of Adha in the time of

the Apostle, who said, 'preserve the meat of sacrifice for three days

and give the rest to the poor. ' She said later the Prophet was told men

used to utilize their sacrifices. They took the fat and used the skins

to carry water; the Prophet asked, 'why not now? ' She replied, 'You

have ordered us not to keep the meat more than three days. ' The

Prophet said: 'I have prohibited that only for the sake of those who

came to Mecca during the day of Ad h9. Indeed you can eat, give it

as alms and preserve it. "

Shäfic1 narrates another version, contrary to the first, from

Ibrahim b. Maisara who heard from Anas b. Malik: "We used to

sacrifice the animals and preserve the remaining portion so that we

could take it with us when we travelled to Basra. " icT has another

in which cA1i "Nobody

version says: should eat the sacrificial meat

after three days. "

The contradiction among the above mentioned ahädith is obvious.

Shäfici He argues cAli's hadith

adopts a reconciliatory method. that

agrees with that of ibn Wägid regarding the Prophet's prohibition

against keeping the meat after three days. He further says that there
 -78-

cAli
is an indication that both and ibn Wägid heard the order of

prohibition from the Prophet. The Prophet's permission for keeping

days failed both cAli

meat more than three to reach and ibn Wägid,

for had it reached them they would not have related the order of

prohibition which was abrogated, and would have followed the order

of permission which had become the abrogating one. The opinion of

Anas that they used to preserve the meat more than three days may

mean that Ana s had heard the order of permission but not the order of

prohibition or he may have heard both but did not mention the order of

prohibition because it was abrogated. After examining the ahädith,

Shafic proposes that it is one of the clearest examples of the abrogating

cA'isha both the order of
and abrogated sunnas, since narrated

prohibition and permission from the Prophet and she narrated the

Prophet's reason for giving the order of prohibition.

(42)
According to Jasss, this was a case of abrogation in the

Prophet's sayings, where both the näsikh and the mansukh were
(43)
mentioned together. Hamadhäni, however, does not allow the

storage of meat, if the same situation appears which had arisen in the

Prophet's time.

The above examples from the Qur'an and the sunna were exploited

by Shafi i
and jassäs in order to establish the fact that naskh has

affected the rulings of the Qur'an and the sunna. Certain verses of

the Qur'än were considered to be in conflict and there was some evidence

of one being later than the other. The later date of v. 66 was confirmed

by the words: 'now God has alleviated your burden. ' The scholars
 -79-

were thus bound to choose the later one, as Shafici has done,

declaring it the ndsikh of the earlier. Both Jassäs and Shafici

were misled by the word 'alleviation' which was considered synonymous

(44)
with the term naskh. The word 'now', if we believe it introduces

the second regulation, would certainly lead to the belief that God has

now realised that which He had not realised beforehand when He

revealed v. 65. This would be tantamount to the theory of Badä' which

(45)
is not accepted by the sunni Muslim scholars. As a matter of

fact, the word 'alleviation' was used as the equivalent of naskh in

order to show that whenever it came after a ruling which was more

demanding, this became the näsikh of the more demanding. This was
(46)
openly acknowledged by jasss. Similarly were the word

interpreted in this way, the scholars would have no choice but to

accept that God Himself declared the occurrence of naskh in Q. 8,65-66.

One can safely conclude that the examples provided by Shafici

and jassäs, in order to show the occurrence of naskh, are not appropriate.

However, there was no choice for both eminent scholars but to produce

Qur'anic examples in order to indicate that naskh had affected the

rulings of the Qur'än. Otherwise the contradictory nature of the

documents would be evident and the Divine will would be unknown.

The result would be that we shall be left in confusion and that would

be contrary to God's expression that He had not left mankind without

(47)
guidance. But, it must be noted, the interpretation by ibn Hazm

suggests that every instance of naskh was merely a device to

rationalize the conflict between and within sources, otherwise he would

 -80-

also have accepted the operation of naskh in Q. 8,65-66, because

he was an exponent of the theory of naskh. The following instance

would further indicate that decisions made by the scholars for the

cases of abrogation were contradictory and thus not convincing.

The change of gibla.

Shafi°i, as we have seen, was the first person to systematize

the principles of abrogation. We have also seen that he was the

first person to propound the principle that naskh operated exclusively

within the Qur'an and the sunna. In addition to that, we have pointed

out that sunna has always been the focal point of his discussions.

In order to formulate the detailed principles, he presented some

examples which, according to him, dealt with the occurrence of naskh

within Islam. We have already examined one of these examples and

showed that he failed to provide an appropriate illustration of the

principle. In the following paragraphs we shall investigate how

Islamic scholarship, before, during and after Shäfici's time was active

in establishing the fact that naskh operated within Islam. The case

deals with the change of gibla.

"God had commanded His Prophet to turn his face towards

Jerusalem in prayer. This was the only recognised gibla until it was

abrogated. Then God abrogated the Jerusalem bla and ordered

ict

Muhammad to turn his face towards the sacred house. Now no Muslim

is ever allowed to face the Jerusalem ctibla in any obligatory prayer.

He is not entitled to face towards any direction but the Kacba. "

"Every ruling was sound in its prescribed time limit. The

 -81-

turning towards Jerusalem was obligatory in the days when God

ordered His Prophet to face it. Later, God abrogated it and it became

obligatory to face towards the Sacred House for ever. No other

direction is allowed to be faced except the Kacba in an obligatory

prayer save in the event of fear of danger or in a supererogatory prayer

while travelling. This is indicated in the Book and the sunna. "

(48)
Shäfici, after the above two statements, concluded: "This

applies to all the rulings which God had abrogated, since the word

naskh means to abandon His command. It was obligatory to abandon

the gibla because God had abrogated it. Everyone who had observed

the abrogated imposition was considered obedient because of his

following it (before it had been abrogated) and of his abandoning it

(after it had been abrogated), but he who had not perceived the abrogated

imposition was considered obedient if he followed only the imposition

which had abrogated it. "

The above discussion of Shäfici conveyed two meanings. Firstly,

both impositions emanated from God. Secondly, the phenomenon of

naskh must operate because one ruling was later than the other and

conflicted with it. One can judge that ShaficPs main concern was

with the nasikh ruling, because he stated: "He who has not perceived

the abrogated imposition, was considered obedient if he followed only

the imposition which has abrogated it. " Therefore, a person is not

required to know the abrogated ruling. His use of the word ''

(His command) hints at the reality that naskh is confined to the field of
(49)
Figh.
 -82-

Scholars have used the instance of the change of gibla to

support their views that naskh has occurred in the Islamic Sharica.

When Jassäs was required to produce an example which would

(50)
demonstrate the existence of naskh, he said: The Prophet used

to pray facing Jerusalem until God by Q. 2,144 ordered him to turn

his face towards the Kacba. Then God revealed Q. 2,142 and showed

that the Muslims were facing towards the Jerusalem bla rather
iQ than

the Kacba but later they were turned from it. " According-to this

statement of Jassäs Q. 2,142 was revealed after Q. 2,144. In the

following quotation he contradicted his own statement and placed

(51)
Q. 2,142 before Q. 2,144. The quotation runs: "Naskh is

recognised in various ways. One of them is that words contain the

abrogating and abrogated situation together with their dates. Anyone

who hears them can easily comprehend from the date that the second

of them is the abrogand of the first. As God said: 'And now verily

we shall make you turn towards a gibla that will please you. 5o turn

your face towards the Sacred Mosque' (Q. 2,144). Before this God had

said : 'The fools among the people will say: What has turned them

from the gibla which they have been observing' (Q. 2,142). In the

former statement the word 'then' ( and in the latter statement

the words 'before this God had said' ( dU 3 L-3 Z)

ý11aü

explicitly indicate that Jassäs shows himself confused over the precise

relative dating.

Showing the change of gibla as an instance of naskh was further

cAbbas
supported by an anecdote, according to which ibn is believed to
(52)
have said: "The first thing that God abrogated in the Qur'an was
 -83-

the gibla; when the Prophet migrated from Mecca to Medina, the

majority there was Jewish. God ordered His Prophet to face towards

Bait al-Magdis. As a result the Jews were pleased. The Prophet

faced towards it for more than ten months. The Prophet used to love

the gibla of Ibrahim (the Prophet); Muhammad requested of God the

change of gibla and looked up at the sky, and God revealed Q. 2,144.

The Jews were much concerned with this change and said 'What has

made them turn their faces. ' Then God revealed Q. 2,115 and Q. 2,143. "

This anecdote reveals the following results: (a) God Himself

changed the iqbla" It was not therefore the sunna which effected the

change. (b) Q. 2,115 was revealed after Q. 2,144, therefore, cannot

be considered abrogated by Q. 2,144. (c) God changed the gibla

because the Prophet has requested it of Him. (d) The Prophet used

to face the Jewish gibla by God's order. The last result obviously

throws light upon the view that Qur'anic law abrogated the Jewish law,

but the scholars do not emphasise this in this instance. Further, in

order to remove the possibility of Jewish influence, scholars propounded

(53)
another anecdote which reads: The Prophet prayed at Mecca

facing towards Bait al-Magdis, with the Kacba in front of him.

Sixteen months after he had migrated to Medina from Mecca, he was

turned to the Kacba. " According to Macgib b. Yasar and Barra' b.

cÄzib the after seventeen Qatada

change occurred months. was of

the opinion that the change of gibla from the Sakhra to the Kacba occurred
(54)
after eighteen months. Thus, Islamic scholarship was not

unanimous about the precise date of the change of the gibla. It

 -84-

certainly, they thought, occurred at Medina. The above mentioned

anecdote was put forward to indicate that the practice of facing the

gibla started in Mecca, and it must be abandoned because it was the

earlier of the two situations.

Q. 2,144 reads: "We have seen the turning of your (Muhammad)

face towards the Heaven. And verily we shall make you turn (in prayer)

towards a gibla which will please you. So turn your face in the

direction the Kacba. Wherever (Muslims)

of you may be, turn your

faces (when you pray) in that direction. Verily the people of the Book

know that this is the truth from their Lord, and He is not unmindful of

what they do. " The words: "We have seen the turning of your face"

were thought to provide evidence that the Prophet made it his habit to

request God to change the direction of his prayer. As a result God

ordered him to turn his face in prayer towards the Kacba. Thus, it was

argued that the behaviour of the Prophet became the cause of revelation
(55)
of this verse. This view was supported by the following anecdote:

"The Prophet, whenever he stood up for a prayer, after the migration,

in Medina, looked up at the sky waiting for a wahy. The Prophet would

'0
say to Gabriel, my brother, until when shall I pray facing the gibla of

the Jews ?' Gabriel would answer him.: 'Verily, I am only a servant to

be commanded, therefore ask your Lord. " The Prophet kept asking

until Gabriel came down to him, one day, and said: '0 Muhammad,

read, 'We have seen the turning of your face ' Thus, the gibla
...

was changed to the Kacba from the akhra. ' That Muhammad had

sought from God to change his direction from Jerusalem to Mecca, was
 -85-

thought to provide enough evidence that the Muslims of Medina had

been in great anxiety and discomfort. This discomfort was because

of the Jews'annoyance at the Muslims. This is shown by a report

(56)
recorded by Nahhäs. "The Jews said: 'The Prophet did not

discover the gibla until we guided him. ' The Prophet disliked their

claim and looked up at the sky and God revealed Q. 2,144. " The

verse in question was thought to have been revealed because of the Jews'

annoyance. It was further confirmed from the content of the verse

because all the surrounding verses talk about the Jews. For example,

v. 135 reads: "And they say: Be Jews or Christians, then you will be

rightly guided. Say (0 Muhammad): Nay, but we follow the religion

of Ibrahim, the upright, and he was not of the idolaters. " V. 142 reads:

"The fools among the people will say: What has turned them from the

gibla which they have been following. " ('Fools' in the tafsir is said

to refer to the Jews). The final v. 145 reads: "Even if you were to

bring to the people of the Book all kinds of signs, they would not follow

the gibla. "

The Qur'an does not, in fact, impose verbally the original

igbla. But that there is change is certain. The Qur'an implies an

earlier qibla: ( ä-, Yl) YI L ; JI älI LL, L9 (Q. 2,143);

yrici ---,
L., c 1y;lsý. )1 i. (Q. 2,142) ). Now the question arises:
CAeAV3

on what basis the Prophet and the Muslims faced the earlier gibla?

The answer to this question will solve the problem regarding the change

of gibla and sort out which ruling was the abrogating one and which the

abrogated.
 -86-

As regards the näsikh verse, the majority argued that it was

q. 2,144. As far as the mansükh is concerned, the scholars could

not reach an agreement as to whether the Prophet followed the order

of God when he faced the Jerusalem gibla (before it was abrogated)

or whether it was up to him and as a result he chose the Jerusalem

gibla i. e. was it or was it not a sunna.

,

Those who wanted to prove that the mansükh was imposed by

God appealed to Q. 2,143. (k. )( I) VI Ly-J6%:.:S 1I ä_1.1 1 W, 1.9

. ýý

According to them the word gibla referred to Bait al-Maadis. Although

(57)
Makki accepts that it was an instance of the Qur'an's abrogation

by the Qur'an, he provides an exegetical debate which rejected the

claim that the word gibla in Q. 2,143 referred to Jerusalem. Rather it

referred to the Kacba. The verb q. -,S in this verse was considered

as equal to =z I and was argued to have applied to a state which

referred to the present and not to the past. It was further argued that

the same verb ý_:.: 5 appeared in Q. 3,110 (____. S) and

=1

denoted the state of present which means The

verse, according to this explanation, reads: "We did not appoint the

gibla which you are now facing except ... ."

It can be assumed that

this interpretation was yet another attempt to show that naskh, in this

case, did not affect Qur'än rulings.

Among the Muslims, there were some scholars who were not

worried about the sunna's abrogation by the Qur'an. They claimed that

God did not order the Prophet to face Jerusalem, it was the Prophet who

himself followed the Jewish aibla, in order to console them. Thus,

 -87-

the practice of the Prophet was based on his own discretion. When
(58)
God revealed Q. 2,144, it abrogated the sunna. Shafici and his

followers could not accept this view and claimed that only the Qur'an

could abrogate the Qur'an. In order to reject their opponent's claim

(59)
they had to find evidence in the Qurlan. Shafici said: "God

directed His Prophet to face the Jerusalem iqbla in prayer. " Shafi°i

did not clarify whether or not God had communicated this to His

Prophet by the Qur'an or by the sunna. His opponent demanded clear

Shafii c Q. 2,142. This verse,

proof. referred to as a matter of

fact, speaks about the query about the change of the qibla. It is

obvious that the Jews could not ask about a thing unless it had

happened, i. e. the change of the gibla. Thus, it would not be

appropriate to consider Q. 2,142 as the mansukh because it merely

explained the näsikh verse. If jassäs' first statement, mentioned

above, is considered correct, it supported the claim.

An attempt was also made to consider Q. 2,115 as the mänsukh.

(60)
Hibat Allah was an exponent of this idea. He tells us a story as

to how Q. 2,115 was abrogated. He says: "The Jews were of the view

that either Muhammad was on the right direction but he turned his heels,

or that he was on the wrong direction which is unlawful to believe. To

clarify this situation God revealed Q. 2,115: 'East and west belong to

Allah. ' And later God abrogated this verse by means of Q. 2,144. "

This view was further projected back on the authorities of ibn Zaid and
(61) (62)
Qatäda. Nahhas rejected this claim and mentioned that, "It

is more appropriate to say that v. 115 is neither abrogated nor abrogating,

 -88-

because the scholars differ as to its abrogating and abrogated nature.

The verse is likely not to be abrogated and one should not say that

there is näsikh and mansukh except when there is a sound proof of

abrogation. " It must be observed that if this statement be followed,

then, in the Qur'an, there would be no case of abrogation. The question

of naskh would not arise at all, because there is no single alleged

verse on which scholars would agree that it was abrogated. It is

worth mentioning that the words, 'East and West belong to Allah',

which are believed to have been abrogated again appear in v. 142.

According to the anecdote which we have mentioned above

concerning the cause of revelation, the mansukh was the Jewish cýibla

which of course was regulated in the Jewish law. This anecdote if

considered correct weakens the claims of the scholars who argued

that the change of the gibla was an instance of abrogation within Islam.

Hence, on the analysis of the above discussion one can judge that

Shäfici and the rest of the scholars failed to identify the origin of the

gibla before v. 144. Therefore, this instance of naskh may represent

external naskh and not internal (i. e. an Islamic imposition abrogated

the Jewish imposition which the Prophet and his followers had been

following for a certain period). This view was strengthened by the

fact that the Muslims agreed that Islamic law has abrogated the ShariCa*s
(63)
of the early prophets. However, they were divided over this

issue. Some said the Sharica of Muhammad totally repealed the Sharica

of the previous prophets; others said that it repealed only the

(64)
communications which were in contradiction with the Qur'än.
 -89-

They were also of the view that some enactments of the previous

Shari a's were imposed for a certain period and were later repealed,

as in the case of gibla; and some were imposed upon the Muslims
(65)
for ever. This can be explained by the following example.

Q. 5,5 reads: "This day good things are made lawful for you. The

food of those who have received the scripture is lawful for you, and

your food is lawful for them. " According to this verse, it has been

made lawful for the Muslims to eat the food of the people of the Book.

The food in this verse, according to the Fugaha', is animal meat

because there is no question of prohibiting the ordinary food of the

people of the Book. The lawfulness of food like bread, cheese and
(66)
fruit has nothing to do with religion. Further, this verse can be

compared with Q. 6,121 which informs us not to eat (the meat) on which

God's name has not been pronounced. The scholars who argue that

Islam totally abrogated the practices of the previous prophets would

tend to believe that Q. 6,121 abrogated Q. 5, S. On the other hand, the

scholars who counter this belief would confine Q. 6,121 to Magis and

allow the Muslims to eat the animals slaughtered by the people of the

Book.

The significance of naskh.

We have already pointed out that Shäfici inherited the principles

of naskh from his predecessors. We have also mentioned that because

these principles were indispensable for him, he altered and justified

them on the basis of Qur'änic references and logical arguments. His

use of these arguments strongly suggests that there was some resistance
 -90-

to these principles both prior to and during his own period. This

resistance even continued after his own time, since we find much
(67)
emphasis on the acceptance of the theory of naskh, jassäs

clearly indicates that there were two opposing groups. Firstly, the

Jews and secondly, a group among the Muslims. He further divided

the Jews into two groups. He maintained that among the Jews some

refused to accept these principles on logical grounds and others argued

on tradition that Moses had informed them that the Sharica of the Torah

and the day of Sabbath would never be abrogated. According to jassäs,

the main argument of the opposing group was that naskh implied Badä'

and it could thus not be ascribed to God. Jassäs' interpretation of the

word naskh indicated that it was adopted in order to oppose the doctrine
(68)
of Badä'. He maintained that: "Nas kh in the Sharica was the

declaration of the time of the particular ruling which we thought would

remain for ever but the second ruling made it clear that the time of the

first ruling was for a certain period only and it was no longer valid. "

He warned the scholars that no ruling could be held to be abrogated

except on the basis of his definition of naskh. He argued that the

first ruling was not required in the second situation in which naskh

had occurred and nullified the first ruling. He was of the view that

whatever the meaning of naskh might be in the Arabic language, it could

not be strictly applied in the Sharica. He justified his restriction of

the word naskh in the Shari a by Q. 2,106. In this verse, he maintained,

God Himself used the word naskh. He further said that naskh did not

mean the lifting of the ruling, because the ruling which was once
 -91-

confirmed could not be lifted. Naskh indicated only that the

abrogated ruling was no longer valid.

The resistance to the principle of naskh is further obvious

(69)
from Nahhäs' statement: "Scholars among the companions and

the successors talked about the subject of al-N sikh wa-1 mansu-kh.

Then later writers differed in their opinions, some of them followed

the course of the earlier scholars and were right but others diverged

from them and were wrong. There were others who said there was

neither näsikh nor mansukh in the Qur'an. They ignored the reality

and followed no Muslim way. "

The writers on al-Nasikh wa-1 mansükh produced a series of

ah&iith, which are normally recorded at the forefront of the most of

the books, in order to establish the authenticity and antiquity of the

principle by projecting it back to the earlier authorities. In the

(70)
following paragraphs we shall examine these ah adith. Nahhas

devotes one chapter of his book to such traditions. The title of this

chapter is 'encouragement to acquire knowledge of the nasikh and the

mansükh. ' In one version of these traditions, " CAli, entered the

cAli
mosque and saw a preacher who was frightening the people. asked

the people who were gathered around the preacher, who is this man? '

They 'A man who is preaching to the ' cAli, thereupon,

replied: people.

said: 'He is not preaching but is saying, I am so and so, the son of

and know ' cAli sent for him and when the
so and so you must me.

cAli
preacher came, asked him whether he knew the nasikh and the
c Ali
mansukh. The preacher shook his head. expelled him from the
 -92-

(71)
mosque and forbade him to preach there again. " Hibat Allah's

cAbd b.
version tells us that the name of the preacher was al-Rahmän
(72)
Dä'b who was a companion of Abu Musa al Ashacri. In Isfaral-ni's

CAli
version when asked his name, the preacher replied that his name

cAli 'no', cUzza (a goddess

was Abu Yahya. answered, you are Abu

of pagan Arabs). According to Isfarai'ni's version the man was

interpreting the Qur'an while IrrabatAllah mentions that the man confused

commanded with prohibited, and permissible with forbidden. According

to these versions when the man acknowledged that he did not know the

from the mansukh, CAli 'You have lost

nasikh said: your soul and

' CAli then twisted

caused others to lose theirs. the man's ear and
(73)
forbade him to preach in the mosque again. Hibat Allah and

Isfarai'ni that same story was ascribed to ibn cAbbäs.

claim

(74) cAbd
In another version produced by Naýbäs Abu al-Rahmän
CAli
reported that stopped a man who was preaching to the masses and

asked him, ' Do you know the näsikh and the mansükh? ' The man

CAli "You have lost

answered in the negative. stated: your soul and

caused others to lose theirs. " The same report is preserved by

Hamadhani, but instead of the word ' oß.. 3' (a narrator) is

(75)
used. Hamadhäni also preserves a story in which Abu Yahya .

himself says: "cAli passed near to me while I was preaching at Ku-fa.

CAli
He asked me who I was and I told him, my name was Abu Yahyä.

said you are not Abu Yahyä. You are saying, 'know me! know me: '

Then cAli asked I could distinguish the näsikh from the

me whether

To which I replied, 'no. ' CAli 'You have lost

mansukh. remarked:
 -93-

your soul and caused others to lose theirs. ' "

(76) cAbbäs
Nahhas has another version to quote. Ibn passed

by aq to the people. Ibn cAbbäs kicked his

ss who was preaching

foot and said; 'Do you know what the näsikh and the mansükh are? '

The g ass replied in the negative. Thereupon, ibn CAbbas

claimed:

"You have lost your soul and caused others to lose theirs. " In

cAbbäs
another version ibn is reported to have commented on Q. 2,269

(He who is given wisdom is verily given great riches), that is knowledge

of the Qur'an concerning its abrogating and abrogated verses, its clear

and unclear verses, and its prohibitions and permissions. Hibat Allah

in which CAli cAbbäs

records yet another version neither nor ibn is

The name mentioned in this is that of ibn CUmar.

mentioned. version

(77)
Ibn Khuzaima has an alternative version of this story.
cA1i by Kacb al-Ahbar the people. He was
passed who was exhorting

CAli told
sitting on the seat where usually the preacher would sit.

him no one could sit on that seat except anAmir or someone who was

After CAli
commanded by the Amir. some days elapsed came back and

cAli
saw Kacb again sitting on the seat and preaching to the people.

"0 Abu Ishäq, did not I prevent you from sitting

asked, on this seat?;

Do you know what is al-Nasikh wa-1 mansukh? " He replied: "God

knows better. " cAli "You have lost

repeated the same sentence: your

soul and caused others to lose theirs. "

From the above reports one may conclude that in order to

vindicate the theory, its exponents invoked the names of the different.

scholars. It should be noted that the uncertainty of the central

 -94-

character in these ahh d th suggests that we have to be very careful

The name of ibn cAbbäs

about the reports they convey. was chosen

because he was considered a remarkable authority on the Qur'änic

exegesis. Further, the Prophet is believed to have said: "May Allah

" CAli
give him the understanding of the Qur'an. The name of was
(78)
suggested because he was believed to be an expert in legal matters.
CAli, like ibn Masoud,
Further, was regarded as an authority on the

Iraqi legal doctrines and was the last of the orthodox caliphs. His

twisting of the man's ears confirms that he was accepted as a ruling

cUmar's because
authority. The choice of ibn name is obvious he was

one of the main authorities for the Medinese. In this way the followers

of this school could easily accept the theory of naskh. However, it is

extremely interesting to note that the name of Ubayy b. KaCb was not

selected. The reason was that he did not believe in the theory of naskh
cUmar is (79)
operating in the Qur'an. reported to have said: "The

legal CAli
Qur'an expert among us is TJbayy and the expert among us is

but we have abandoned elements in Ubayy's doctrine, since he maintains

that he will not give up anything heard direct from the Prophet although

God himself has said: 'Whatever verse we abrogate or cause to be

forgotten we shall bring one better than it, or one similar to it' (Q. 2,106): '

Ubayy's name appears in the ahadith in which it is assumed that some

(80)
of the verses of the Qur'än were withdrawn.

These ahh dith clearly demonstrate that knowledge of the nasikh

and the mansukh was very important to our knowledge of God's will.

By applying this method scholars could easily reject or accept the rulings
 -95-

of the Qur'an. This was the main reason that higher authorities

were involved to speak about the abrogation of the rulings since it

was believed that they had acquired the knowledge of the nasikh and

the mansukh. The knowledge of the Qur'an alone did not suffice,

the scholars must know which ruling of the Qur'an was abrogated.

That this was the obvious reasoning behind these ahadith was shown
°Ali the man because
by Hibat Allah and Isfaräi'ni. rebuked he had

confused Divine commands with the Divine prohibitions. Isfarä'i-ni

(81)
openly says that, "whosoever wants to speak about the meaning

of the Qur'an, it is incumbent upon him to know the science of the

mansukh verses following the examples of the predecessors, because

when he interpreted the Qur'an without knowledge of the näsikh and

the mansukh, he might order people to accept some rulings which, in

fact, were abrogated. " Ibn Khuzaima(82) went one step further and

declared that no one was allowed to recite the Qur'än unless he had

acquired the knowledge of the abrogating and abrogated verses.

The significance of naskh may be estimated by the following

report. Hudhaifa was approached for a fatwä on some matter. In

answer he replied, "Only three kinds of men can do this: firstly, he

who is expert in the nasikh and the mansukh (when he was asked who
c Umar),
was expert, he replied secondly, a Sultan who in order to

execute his duties is obliged to make a decision, thirdly, an officious

(83) (84)
pedant. " In Hibat Allah's version the categories are four: an

Amir, a person commanded by the Amir, he who knows the näsikh and

the mansukh and a brainless officious pedant. Nahhas'85) also records

 -96-

this version and concludes that only an expert in the abrogated

verses of the Qur'an can give a decree and such a one he says is

CUmar;
a gadi can do so because he is entitled to make a decision.

He also includes an officious pedant in this category. Hudhaifa,

then said: "I am not included in the first two categories and I would

not wish to be the third. The version recorded by Nahhäs did not

throw light on the source of the nasikh: whether it was the Qur'an or

the sunna. It suggested that according to Nahhas naskh could operate

between the Qur'an and the sunna. This was the theory of Shafici's

predecessors who did not make any sharp distinction between the

sources. This theory was accepted in the post-Shäfici period as it

is obvious from numerous works of later scholars. For example,

jassäs clearly maintains that the Qur'an can abrogate the sunna and
(86)
the sunna the Qur'an. Traditionists wanted to establish the

authority of the sunna so that it could participate in the establishment

of the doctrines where the Qur'an was silent, or at least where both

the sources were in agreement. However, the scholars were divided

over the issue where the sunna was in contradiction to the Qur'an.

We have already pointed out that in such conflict the ahl al-Kalam and

the adherents of the ancient schools were inclined to accept the

authority of the Qur'an. Therefore, they could easily abrogate the

sunna by reasons of its contradiction with the Qur'an. Shäfici opposed

their view and propounded his special theory of abrogation, i. e. only

the Qur'an could abrogate the Qur'an; only the sunna could abrogate

Shaft i that if he accepted

the sunna. was certain the abrogation of
 -97-

the sunna by the Qur'an, it would be a disaster for the sunna and

eventually for the Figh itself. Therefore, he made a sharp distinction

between the well-known and respected sources. To this end he

embraced the Qur'anic prop ' J_:.;. ' (like) which appears in Q. 2,106:

na'ti bi Khairin minha aw mithlihä. Shäfici used this word consistently

in his discussions of al-Nasikh wa-1 mansukh. For instance, there is

nothing similar to the Qur'an, a source is abrogated by another source

similar to it, nothing is similar to the sunna except the other sunna of
(87)
the Prophet. These slogans defend his theory of abrogation.

The word mithl which was a main buttress for ShäficPs theory

of naskh, is further traced in a series of ah dith which are preserved

(88)
in the armoury of Hamadhäni. The ha dith of the Prophet is like
I
the Qur'an, therefore, one part abrogates the other. It should be

pointed out that scholars could interpret this hadith the other way round

='the haadith of the Prophet is like the Qur'an, and the one may abrogate

the other. " This interpretation, in any case, was not sought by

Hamadhani, because he placed this hadith together with the following

hadith. "Part of the hadith of the Prophet abrogates another part of the

hadith as part of the Qur'an abrogates another part of the Qur'an. "

dith
This ham is further supported by a statement which bears the name

cUrwa b. Zubair: "I testify that my father told

of me that the Prophet

would make a statement and after a while, he would abrogate it by

means of another statement just as the Qur'än abrogates other parts of

the Qur'än. " This doctrine was traced back by involving the Prophet

himself. Ibn al-Bailamani reported on the authority of his father that

 -98-

ibn °Umar heard from the Prophet who had said: "Some parts of my

ahadith abrogate other parts of my ah adith.

These ahdith emphasized that naskh operated exclusively

within the Qur'an and the sunna. Hamadhant does not accept ibn al-

Bailamani's report and argued that no one except ibn al-Bailamani has

narrated this haadith. Further, he said: "Ibn al-Bailamani was not a

reliable person and his hadith must not be accepted. " These ahädith

i
were not known to Shäfi because he did not refer to them whenever he

discussed the principle of naskh. These ahh dith emerged only in the
(89)
post-Shäficf period. The allegation that the sunna abrogates the

sunna was justified by the scholars who argued from the agreed position

that the Qur'an abrogates the Qur'an. It is interesting, however, that

according to- the majority Q. 2,106,16,101 and 13,39 clearly speak

about the abrogation of the Qur'an by the Qur'an. This led ibn al-

Bailamani to report from the Prophet that, "some parts of the ahadith

abrogate other parts of the ahh dith. " In this way both sources could

be supported by God and His Prophet respectively. If the Muslims had

accepted that abrogation indeed had occurred in the Qur'än, it would

be easy to believe that the abrogation had affected the rulings of the
(90)
sunna. A similar sort of argument was that of jass9s: "If the

sunna could be abrogated by the sunna why should it not be abrogated

by the Qur'an? " Indeed the operation of naskh in the sunna was

inevitable because there was a mass of contradiction within the sunna.

This was the reason which encouraged the ahl al-Kaläm to reject the

whole body of the sunna. They held that there was not only contradiction
 -99-

(91)
within the sunna but even between the Qur'än and the sunna.

It has become clear that the traditionists badly felt the need of

abrogation within the sunna so that it could not be rejected on the

grounds that it not only contradicted itself but also the Qur'än.

Shafici was a member of the traditionists. He propounded his special

theory of abrogation and justified it, using certain verses of the Qur'än.

To help him, the traditionists put forward these ahh dith which are

mentioned above.

The literature on the subject of al-Nasikh wa-1 mansükh helps

us to understand that scholars were preoccupied with whether or not

the Qur'an and the sunna could abrogate each other. Further, it tells

us that unanimity never existed among the Muslims. Nahhas(92)

records five views to this effect.

(1) The Qur'an can abrogate the Qur'an and the sunna.

This is the theory of Kufans (i. e. Iraqis).

(2) The Qur'än can abrogate the Qur'än but the sunna

cannot abrogate the Qur'än. This is the theory of

Shafio and a group who follow him.

(3) The sunna tan abrogate the sunna and the Qurlan.

(4) The sunna can abrogate the sunna; the Qur'än cannot

abrogate the sunna.

(5) The fifth view was ascribed to Muhammad b. Shujjac

who said: "Doctrines have clashed, therefore, I do not

judge one of them by means of the other. "

 -100-

This gives us a clue that he did not want to stress any of

the above mentioned views. He suggested that scholars could adopt

any one of these theories when they wanted to document their Figh.

Nahhäs did not mention the exponents of the third and the fourth view,

but it is obvious that the third view was also that of the ancient

scholars - the upholders of the first theory. Likewise, the fourth

view was accepted by Shäfici. The difference in these theories, pointed

out by Nahhas, is very important. It tells us how Islamic scholarship

was working in the early period of Islam when the status of the Qur'an

and the sunna was being discussed. It should be kept in mind that in

the beginning of the age of scholarship very little attention was paid

to the field in which naskh operates and the reasons for its occurrence.

This suggests that the-theory of naskh was accepted without its details

prior to the emergence of Usüi al-figh literature.

Naskh is a speciality of the Fuaahä'.

The literature on al-Nasikh wa-1 mansukh reveals that naskh

is restricted to the field of Figh. This can be supported by the fact

that the majority agreed that naskh affected the rulings, and not the
(93)
narrative statements. Nahhas condemned the scholars if they

attempted to expand the field of naskh into the narrative statements.

According to Makki, the main theme of his chapter (what

can be abrogated and what cannot) is that God removes His ruling and

substitutes för it another ruling. Both the abrogating and abrogated

rulings are recited but the abrogated one is not practised (naskh al-hukm

duna al-tiläwa). God also removes His ruling as well as wording and
 -101-

puts in its place another ruling. In this case, only the ruling of

the abrogating verse is accessible to the Muslims. All this is

possible in the field of rulings, duties, commands, prohibitions,

restrictions that God has placed on man's freedom of actions and

un-prescribed penalties which are enforced in the law of this world.

Makki that this view was adopted by the majority °Ulamäl

claimed of

and ua ä'. In addition, he said, no view other than this was

accepted. All that God has informed us that would happen or that

had happened, all that He has told us about the people who passed

away, about Heaven, Hell, judgement, punishment, resurrection, the

creation of the Heavens and the earth, the abode of the unbelievers

in Hell, the abode of the believers in Heaven, are the categories in

which abrogation cannot play any role. akhbär, i. e. statements).

(95)
According to jassas, the rulings governing the deeds of

the devotees, when they become incumbent upon them, are of three

kinds. Firstly, some rulings are binding forever and cannot be changed

such as to believe in the unity of God and in the Prophets, to be

grateful for the bounties of God and to avoid disgusting deeds.

Secondly, some rulings are forbidden to be acted upon such as not to

be grateful for the bounties of God, to tell lies, to disbelieve in the

Prophets and to commit disgraceful acts. These two categories are

related to reason, therefore, they cannot be changed. No text can be

found to contradict what reason has confirmed because reason is an

authoritative source for understanding the will of God. Whatever He

declares good, is good and whatever He declares shameful, is shameful.

 -102-

The text which embodies the ruling is also an authoritative source

for knowing the will of God. Hence, it is impossible for these two

sources to contradict each other. Therefore, no text can lift the

obligation which reason has accepted as obligatory; nor can it

prescribe what reason has prohibited. On the above mentioned

argument, jassäs concludes, that naskh cannot operate in those two

fields. As regards the third category, reason can . allow any act

to be carried out after it has been prohibited. The reason jassäs

puts forward is this: "The source of every ruling is God Himself and

it is expedience which works behind these rules. If He knows that

the welfare of the people is in prescribing something, He does so.

On the other hand, if He knows that the welfare of the people is in

prohibiting something, He follows that course. This is the exact

reason why He prescribed fasting in the month of Ramadan, .

but forbade

fasting on the day of Fitr. Likewise, He prescribed the prayer at its

fixed times, but did not allow prayer as the sun is rising and setting.

Further, it is lawful to lay the duty of fasting and prayers on the clean

and purified believers, but the menstruating women are not allowed to

do so. This can be applied to all His commands which He orders us

to follow. " It is really up to God, says jassäs, "To make men poor

or rich, to make them healthy or unhealthy. He can also create warm

and cold weather. God has knowledge of all these things and He keeps

making decisions according to the welfare of the people. " jassas

again stresses the point that in the first and second categories different

rulings cannot run simultaneously. For example, it is unlawful to order

 -103-

someone to believe in the unity of God and at the same time to give

someone else the opposite command. Similarly, it is impossible

to order one person to believe in the prophets and to ask another not

to believe in the prophets. Moreover, it is not appropriate to tell

the people not to commit disgraceful acts, but to order others to do

so. In making the above statement, Jassas concludes that the rulings

concerning prayer, fasting, Hajj and sacrificing the animals can be

abrogated. Thus, he openly confined the scope of naskh to the Fý

rulings.

We see that the definition of naskh, propounded by the Usülis,

mainly covers the legal texts. Thus it would be appropriate to say

that scholars were concerned with the texts of the Qur'än and the

sunna. Ghazzä1i(96) defines naskh as a text which indicates the

lifting of a ruling which has been confirmed by an earlier text, and

that the abrogating text always succeeds the abrogated one. Tabari(97)

also confines naskh to the rulings of the Qur'an. Interpreting Q. 2,106

he says the verse means: "Whatever ruling of the Qur'än we transfer

to a different legal category, God changes what was lawful into

unlawful, or vice versa; He changes what was not prohibited into

what was prohibited, or vice versa. Naskh can affect only commands

and prohibitions. It cannot affect the narrative statements from God.

The term naskh is derived from naskh al-Kitäb. It is transferred from

one exemplar to another, different, exemplar. The naskh of a ruling

means its changing from one category to another by transferring what

God had said about the ruling in His earlier utterance, to a later
 -104-

different utterance, (touching on the same topic and ruling). " Ibn
(98)
Faris defines naskh as repealing a command which has been acted

upon until it was replaced by a second command. According to him

anything which is subsequent to another, takes the place of it.

These definitions suggest that naskh is a speciality of the

Fuqaha'. However, the first task of the scholars was to reconcile

the sources which were in conflict. Tabarit99ý clearly remarked:

"No ruling of either the Qur'an or the sunna can be said to have

abrogated another ruling unless the two contradictory sources are

impossible to apply together, and there is an abundant proof that one

(100)
of them is abrogating and the other is abrogated. " Jassäs

maintains that the abrogating ruling always occurs after the previous

ruling has been confirmed and there is no possibility of combining

them for one situation and for one person. The concept of an abrogating

ruling - that it should always occur after the mansukh has been confirmed

cAbbäs
- was traced back to the authority of ibn who is believed to have

said, "the companions of the Prophet would follow the later and the

later from his commands; '(101) It must be noted that when Fig h

doctrines clashed with the usul of Figh, new rules emerged in order to

remove the incompatibility. This is explained as follows:

Q. 4,15-16 read: "Those of your women who commit indecency,

seek four witnesses against them, and if they testify, confine them

to their houses until death takes them, or God appoints a way out for

them. And when two of you commit indecency, punish them both, but

if they repent and reform, then desist from them, verily God always has
 -105-

been relenting, compassionate. " The verse is believed to have

prescribed the penalty for adultery for the first time in Islam. Later,
(102)
according to some, it was abrogated by Q. 24,2, "the fornicator

and the fornicatress scourge each of them with a hundred stripes. "

In these verses, three penalties are mentioned - nabs, adhd and laid.

jassäs can combine these three penalties regarding one person in one
(103)
situation. According to him, applying the bald for an unmarried

couple would not prevent the continuing validity of the Nabs and adhä ,

and would not cause the latter penalties to be eliminated. In other

words the rulings of Q. 4,15-16 and Q. 24,2 can be combined, but

jassäs is not ready to do so because this would be an addition to the

previous ruling which, if accepted, is termed naskh. It is obvious,

that jassas knows that the combination of the two rulings is possible,

yet he ignores the fact because it would break down his whole theory
(104)
on adultery. The penalty for fornication, concerning a married

couple, according to jassäs, is Rajm (stoning to death). Ram cannot

be combined with Nabs and adhä, argues jassäs, because their

combination is not feasible. His interlocutor was not convinced and

pointed out that there was no harm in combining habs, adhä and Ram.

The Rajm would be carried out after applying h7abs and adhä. This

objection reveals that there was resistance, in Jassäs' time, against

*0 a
the theory of naskh. Because if his interlocutor's idea is accepted,

i. e. the penalties are combined, then, on this point there is no question

of naskh. However, jassäs' answer to this question is this: Q. 4,15

"until death approaches them or God appoints a way out for them" means:
 -106-

habs and adhä are the penalties until the woman dies a natural
10
death or God appoints her a way. By Rajm God appointed her a

way out, therefore, these penalties cannot be combined in any case.

He further argues that Rajm, by itself, is a penalty for adultery. In

the past habs and adhä were the penalties. Ram has replaced habs

and adhä, therefore, there is no question of combination. In other

words the later has abrogated the earlier. Similarly, Jassas admits

that bequests (Q. 2,180 and 240) and inheritance verses (Q. 4,11-12)

can be reconciled, but he does not show himself ready to accept this
(105)
idea.

According to jassäs when one ruling is confirmed, then nothing

should be added to it because that would be equivalent to naskh. The

very nature of this rule shows that it was generated by the Hanafis

in order to oppose the doctrines of their opponents. The following

example serves to clarify this statement. Q. 5,6 reads: "0 you who

believe when you rise up for prayer, wash your faces and your hands

up to the elbows " The explicit meanings require that before

...
(106)
prayer washing of these parts of the body is necessary. ShaftcI{107)

remarks that ni a must be made for purification whether it is in the

form of hgusl, wudu' or tayammum. He refers to the Prophet's haTdith

in which he is believed to have said: "Every practice is based on

(108)
niyya. It Jassäs rejects this claim and argues: "Prayer will be

valid after washing hands and face. Niyya must not be involved,

because ghusl has a legal name and its meaning is understood, i. e.

passing water over the body. It has nothing to do with niyya, and
 -107-

whosoever attached riiyya to hg

usl added to the explicit text.

This is invalid for two reasons. Firstly, an addition to the text is

naskh. Secondly, the text has its own ruling, therefore nothing

should be added to it, which was not part of it: it is also unlawful

to drop something which is related to it. "

 -108-

CHAPTER FIVE

THE ABROGATION OF THE RULING BUT NOT OF THE WORDING

(l)
Dr. Burton states: "The term naskh or al Nasikh wa-1 mansükh,

despite the u sulPs habit of treating them in a single chapter, refer not

to one but to three methodological principles. They are quite

unconnected with each other, and each has evolved from its evidentiary

base to supply three distinct needs in separate Islamic sciences. "

These three methodological principles, according to the insults are:

(1) Naskh al-hukm duna al-tiläwa (the abrogation of the

ruling but not of the wording).

(2) Naskh al-tiläwa duna al-hukm (the abrogation of the

wording but not of the ruling).

(3) Naskh al-hukm wa al-tiläwa (the abrogation of both

the ruling and the wording).

In this chapter we shall examine the first mode of naskh which

is widely accepted by the exponents of the theory of naskh. According

to the writers on the subject of al-Nesikh wa-1 mansukh this mode deals

with numerous verses of the Qur'än, but the standard verses provided

by the usulis (in order to establish the fact that some rulings of the

Qur'an were abrogated while the wording remained valid) are concerned

the problems cldda.

with of wasyya and

a Wasiyya (bequest).

There are three verses involved in this connection.

 -109-

(1) Q. 2,180: , It is prescribed for you, when death draws

nigh to one of you and he leaves property, that he

make bequest to both parents and the near relatives. "

(2) Q. 2,240: "And those of you who die and leave behind

wives, they should bequeath in favour of their wives

a provision (maintenance and accommodation) for the

year without turning them out. "

(3) Q. 4,11-12: This verse prescribes the precise shares

for the heirs of a deceased person.

Q. 2,180 and 240 clearly prescribe the making of a bequest in

favour of parents, relatives and wives. Simultaneously, by Q. 4,11-12

parents and wives can get their shares from the estate of a deceased

man. Scholars have admitted the fact that both the rulings can be
ý2,
Shäfi ci Q. 2,180
applied together. after quoting and 240, says:

"Then God provided legislation for the inheritance of the parents and

those who inherited with them or after them among the near relatives.

He provided legislation for the inheritance of the husband from his wife

and vice versa. " Shafici continued to say that the foregoing verses

could be interpreted in this way, that the bequest in favour of the

parents, near relatives and wives was allowed together with the

inheritance, so that they enjoyed their share of inheritance with the

bequest. These Q. 4 verses can also be interpreted as abrogating the

(3)
verses concerning bequests. jassäs said: "The inheritance verses

did not abrogate the wasiyya because the inheritance and bequest

verses could be combined in one situation for one person. " However,
 -110-

the doctrine accepted by the majority was that the parents and wives
(4)
were not entitled to inheritance together with the bequests. They

could get only a share from the inheritance of a deceased man because

the making of a bequest in their favour was abrogated. The doctrine

clkrima, Qatäda, Mujähid

was ascribed to ibn Zaid, and Suddi. The

cAbbäs
doctrine was further strengthened on the authority of ibn who

once delivered a speech in order to clarify the meaning of the sürat al-
(5)
Bagara; when he reached Q. 2,180, he said, it was abrogated.

According to Dahhak, Hasan and Tawus, the making of a wastyya, in

favour of the parents and near relatives who do not inherit for some
(6)
particular reasons, is obligatory. This doctrine was also referred
cAbbas "Q. 2,180 was not abrogated in the cases
to ibn who said: of

those who do not inherit. " To this effect jassäs remarked that two

to ibn cAbbäs. According

contradictory reports were ascribed to the

former report, the verse was totally abrogated and according to the

latter it was partly abrogated.

(7)
jassäs informs us that according to some scholars the bequest

was obligatory in favour of relatives, but it was not the case that a

testator should make the bequest in favour of all the relatives. He

had to make the will in favour of only those who were close relatives.

Therefore, he was not obliged to make the wasiyya for remote relatives.

Later the bequest in favour of those who were close relatives was

abrogated; the remote relatives remained in the same state as they

were before, because, although a man could make the bequest to them,

he did not have to.

 -111-

The above mentioned views reflect the majority's attitude

towards the abrogation of the wasiyya. However, scholars were

divided on what had abrogated it. Some said the ham

dith of the

Prophet: "la wasiyya li warith" abrogated the obligatory nature of

the wasiyya. Those who did not accept the Qur'än's abrogation by

the hadith were inclined to argue that Q. 4,11-12 abrogated the bequests.

Thus, the doctrines upheld by the majority, that the wasiyya was

abrogated, made Q. 2,180 clash here with the sunna and there with the

Qur'an. In both cases naskh was asserted. Let us first examine the

views of those who claimed that Q. 2,180 was abrogated by Q. 4,11-12.

cAbbas (8)
Ibn is believed to have said: "Inheritance verses

abrogated the wasi a. " Malik(9) followed this view, but did not

provide details. Yahyä narrated, "I have heard Malik saying:

'Q. 2,180 was abrogated by what God revealed in His Book concerning

the precise shares in the inheritance. ' " He further said that,

according to Malik no bequest is valid in favour of legal heirs because

this is an agreed practice concerning which the Medinese have no

dispute. This was why, perhaps, some scholars were tempted to say

that the was yya was abrogated by the IJmac. Razi(10) tells them

that their doctrine is nullified for two reasons. Firstly, Lm äc cannot

abrogate the Qur'an. Secondly, some scholars were of the view that

this was not a case of abrogation, therefore, Ijmä-c could not be claimed

to have occurred.

ýl l}
Shäfic1 s argument concerning the problem in question was

somewhat complicated. His main aim in producing this example was

 -112-

to show that both the sunna and IjmaC indicated that some of the

rulings of the Qur'an were abrogated. Shafi°i's argument starts:

God said: "Enjoined upon you when death comes to one of you and

he leaves property is the making of a bequest to both parents and the

nearest of kin (Q. 2,180). " God further said: "And those of you who

die and leave behind wives, shall bequeath in favour of their wives

a provision for the year without turning them out (Q. 2,240). 11 God

also said: "And to the deceased's parents one-sixth of the inheritance,

if he has a child; if he has no child and his parents are his heirs

one-third is for his mother(Q. 4,11). " Thus God provided two

legislations. According to the first two verses the bequest is

obligatory in favour of the parents, near relatives and wives. According

to the second legislation God fixed the shares of the persons who

inherit from the estate. Shafici holds that the verses contain two

possible meanings, a) the parents, next of kin and widows benefit

from the bequest together with the inheritance. b) the verses

containing the ruling on bequests had been abrogated and therefore no such

bequest is valid. Since both interpretations are possible, it is the

duty of the scholars to find evidence from the Book of God (as to which

of the two is valid). If the scholars cannot trace it in the Book of God,

they should try the sunna of His Prophet. If they found evidence in the

sunna, it should be accepted, because God ordered mankind to obey His

C
Prophet. After making this statement Shafi i said, we have found the

Maghazi scholars were not in disagreement over what the Prophet

(12)
said: 'There is no bequest in favour of an heir; no believer should
 -113-

(13)
be slain for the blood of an unbeliever. " Shafici said: "This

is a hadith which is transmitted by the public from the public. It

is, therefore, of greater validity than the report of one individual from
(14)
another. " He further said: "I do not know any scholar who

disagrees that the was to parents is abrogated by the inheritance

verses. The sunna indicates that the waasiyya is invalidated in favour

of heirs whether parents or otherwise. The sunna indicates that the

bequest in favour of those who are not relatives is valid. It also

displays that the wasiyya in favour of the parents and others who inherit

is totally abrogated. However, if they are not heirs, the bequest is

still valid. When a bequest is prepared with regard to the parents

and other heirs do not mind, the parents merely take it as a gift from

the heirs and not as a property that was bequeathed to them. "

We have already pointed out that Tawus was of the opinion

that the wasiyya in favour of those who do not inherit is valid. He

further held that if someone made a wasiyya for other than his relatives,
(15)
it would be taken back from them and returned to the relatives.

Shafici said what Täwus mentioned was possible because the Prophet

had merely said: "No bequest for an heir was valid. " Yet it was

obligatory upon the scholars to seek evidence either in favour of Täwüs

or against him. Shafici found a decision of the Prophet concerning

six slaves who were owned by an Arab. This was the only property

possessed by the man. He set them free at the time of his death. The

Prophet divided them into three groups and freed one group of them.

Thus four slaves were left in slavery. The Prophet's decision to free
 -114-

the two slaves at the time of Arab's death, said Shafici, constitutes

ya
a waste The man was an Arab, said Shafici, and the Arabs

owned only those who were non-kin. From this precedent Shafici
(16)
draws numerous conclusions. Two of them are related to our

discussion. Firstly, the making of a bequest in favour of those who

are not relatives is valid because, if it were invalid, it would have

been void concerning the freed slaves. Thus he refutes the doctrine

of Täwüs. Secondly, the bequest of a deceased person cannot exceed

more than one-third of his estate. Thus he confirms on these points

the view of Malik.

(l ýý
jassäs disagreed, suggesting that the slaves owned by

the Arab who set them free might be his relatives, because it was

possible that the man's mother could be a non-Arab. Therefore, the

slaves could be his maternal relatives. The bequest made in this

connection was for his relatives and not for other than his relatives.

inconsistency c
in Shafii's
jassäs also showed another arguments.

In his opinion, Shafici held that making of the wasiyya in favour of

the near relatives was abrogated by the decision of the Prophet; while

ShaficPs principle was that the Qur'an was never abrogated by the

sunna. The following is the clear illustration provided by jassäs.

"Shäfici stated that it was possible that the inheritance verses

abrogated the bequest; or that the bequest was a confirmed obligation.

When a hadith (lä wasyya li wärith) from the Prophet, narrated by

Mujahid, reached us, we concluded that this indicated that the

inheritance verses abrogated the bequest in favour of the parents and

 -115-

kin (although the hadith was interrupted). " jassas, in

next of

reference to this, remarked that "Shafici admitted that the two verses

(Q. 2,180; Q. 4,11-12) could be combined; he also admitted that

the was interrupted, but Shäfici accepted it while in principle

report

he did not accept this, even if it came down by the way of tawätur.

Using this report he decided on the ruling of the verse while he did

not allow the abrogation of the Qur'an by the sunna. "

The hadith 'la wasiyya ii wärith' indicates, according to

Shafioi, the abrogation of the wasiyya legislation. The report, weaker

in isnäd, as is admitted by ShäfiCi, was strengthened by the authority

of Ijmac. This sort of judgement gave rise to doubts about the

validity of the report. One may argue that the haTdith was a legal

was widely accepted by the Fuaahal, in the form of Dmac

maxim which
(18)
and was later ascribed to the Prophet. Before we record the further

variations of this hadith, let us examine the views of those who accept

that the wasiyya was directly abrogated by this dith.

ham The argument

of the exponents of this theory was that, when God prescribed the

shares of the parents He said, they are to be deducted after any bequest

that has been made. Therefore, by the explicit text of the Qur'än the

parents, relatives and widows could get their shares after the wasiyya

had been made in favour of them. The abrogation of the was by

Q. 4,11-12 creates ambiguity because in these verses the obligation of

a re-appears; if the abrogation of the verse (Q. 2,180) is claimed

wasi
(19)
to be by the sunna, no ambiguity arises. " The Hanafis clearly

say that the wasiyya was abrogated by the sunna. Räziý20) favours
 -116-

this doctrine saying that, "it is more likely that the Qurlanic

injunction is abrogated by the sunna, but this is difficult to believe

since the report is Khabr al-Wähid which in any case cannot supersede

the Qur'an. However, I maintain that this hadith was accepted by

the scholars of all ages, therefore, it becomes like a Khabr al-

mutawätir. " Qurtubi(21) also accepts this doctrine and gives reasons.

These arguments clearly indicate that the Fugahä' had definitely

decided to abrogate the legislation of waýya. Now they were

preparing their arguments to escape from the problems which had arisen

after their discussions. The question arises as to why scholars were

so anxious to abrogate the ruling of Q. 2,180 and 240. The reason for

this decision seems to be material interest and a desire to avoid

creating two legal categories of claimants, i. e. those who benefited

by way of was iyya and mirath; and those who benefited by miräth alone.

Shäfici(22) openly acknowledges this by saying that they (the parents,

near relatives and wives) might not benefit from the estate in these two

ways. The doctrine was expressed in a form of ham

dith ("there is to

be no bequest in favour of an heir"). ý:"ýýy n_. This

.I ý, ý,.,ýy'i".

expression was developed in another form which reads:

("it is not allowed to bequeath in favour of an heir "). In jassäs'

version the word " is replaced by " These words fully

supported the Figh doctrines because the answer to the problems was

provided directly. jassas records another version which is narrated by

(23)
Abu Umama who said: "I have heard the Prophet declaring during

his last pilgrimage: "Behold, God has granted to every legal heir his
 -117-

share, therefore no bequest is valid in favour of an heir"). dUf cýI 1I11

" d. J "--wob ý+ ýý J5 1. ". It should be noted

c9ýº 4SS Ul-A

that in Ahkäm this hadith was put forward by jassas in favour of those

who argued that the Qur'an was abrogated by the sunna. But in his

usul this ha dith was explained away because it was accepted by his

opponents who maintained that the hadith indicated the abrogation of

(24)
the wasiyya by the müäth. jassäs said that the ha dith did not mean

that the bequest was abrogated by the ayat al-mawärith as an instance

of abrogation of the Qur'an by the Qur'än, but it was abrogated by

wahy (By wahy Jassas means aýI I1. at. The

a LWO$.,

Prophet's mentioning of the word miräth in the haY

dith, with the

abrogation of the wasiyya, meant only that he had explained the verse

(Q. 2,180) and declared that man's share of the previous wasiyya was

abrogated, because God himself had provided him with a new share by

way of the miräth. This share might be better, however, than the

share of the was iyya. The Prophet made it clear that a man would not

be left without his share from the estate whether before the abrogation

of the wassiyya or after the abrogation of the wassiyya (That is, the

sunna provided here, not the näsikh of the Qur'an, but its Baygn

dith was certainly

The ham propounded by the scholars who were

familiar with the arguments of Shäfici, that the sunna's function was to

elucidate the Qur'an and to distinguish the näsikh from the mansükh.

It was declared that God Himself had abrogated the Qur'an (2,180) by

the Qur'an (4,11-12). This form of the hadith as is obvious, was not
c However, it represents
known to Shafi1. the central point of his

discussions.
 -118-

jassäs' treatment of the verse (2,180) was totally different

from that of his fellow Hanafis who argued that the verse in question

was abrogated by the sunna, and from the rest of the scholars who

maintained that it was abrogated by ayat al-mirath. He did not

accept the idea that the alleged hadith abrogated Q. 2,180 because

he knew it was mun a ic. He also did not consider the inheritance

verses as the näsikh, because both mirath and the wasiyya could be

applied together. He says: "Do you not think that the Prophet would

have allowed the bequest in favour of an heir if the other heirs consented.

It is not absurd to combine them for one person. " He declares that

the obligatory nature of the was iyya, in favour of the parents and the

near relatives, was abrogated by - God's saying - "after any legacy

he may have bequeathed (has been given) or any debt (has been paid,

the shares are distributed). " According to Jassäs, the word wasiyya

in this verse was expressed as an indefinite noun. Therefore, one

could make a wasteiyya to anybody that he wanted (excluding the parents

and relatives). After doing so, the rest of the property was divided

among legal heirs according to their shares. After making this waslyya

and giving the heirs their shares, nothing remains to be bequeathed to

the parents and the relatives.

jassäs' interlocutor remarked that as the word was iyya was

indefinite, it was not restricted and could be applied to everyone

including the parents. Wasi yya was more likely to be made in favour

of the man's heirs. By accepting this argument, maintained his

opponent, the permissibility of making a wasiyya remained valid.

 -119-

jassäs answered: "By Q. 2,180 wasiyya was made obligatory. There

was no mention of its permissibility, because the word wasiyya

in the äyat al-mirath with regard to its indefinite

mentioned nature

abrogated the obligatory nature of v. 180. " jassäs' interlocutor was

not convinced and stated that the was iyya mentioned in Q. 4,11-12

could be referred to the wasiyya of Q. 2,180. In this way the parents

(25)
fell in the same category. jassäs answered: Were that intended

God would have said al-wasiyya in Q. 4,11-12, so that the article

( J) ) would have referred to the same definite noun which was

,.

mentioned in Q. 2,180. " He concluded that, "the obligation to make

wasiyya in favour of the parents and the near relatives, even if they

were not heirs (for some reason), was abrogated. This was because

the wording L. ä--- ºj .L*_; co " necessitated

ý, --. ý jI _._.. f.; ß, a9-

that the wasiyya was permissible only in favour of the rest of the

people. It should be noted that, like Shaft°i, jassas' main aim in

putting forward this argument was to reject the doctrine of Tawus. He

(26)
himself acknowledged this by saying: "Through this doctrine, I

have invalidated the views of Tawus, Masruq and Muslim b. Yasär who

confirmed the wasiyya in favour of the parents provided they were not

heirs. " Tawus did not allow wasiyya in favour of outsiders as long

as the parents and relatives were alive.

Sarakhsi(27) argued: "In this legislation (Q. 2,180) there is

a textual provision that wasiyya in favour of both the parents and

relatives is obligatory. This was abrogated by the hadith '1ä wasiyya

li wärith'. This is a well-known sunna. It is not proper to say that

 -120-

this Qur'anic legislation was abrogated by the ayat al-mawarith,

because Q. 4 imposes a second right which is not in contradiction

to the right imposed by Q. 2,180. If there is no conflict, the question

of naskh does not arise. It is also not proper to assert that one

right (Q. 2,180) was abrogated by what was revealed in the Qur'an,

whose wording because of its abrogation did not reach us, while the

ruling remained valid. For, to open this door would certainly lead

one to say concerning all the rulings of the Sharica, that there is no

rule but it might have been abrogated by a revelation whose wording

has not reached us. The inheritance verses manifestly mention an

indefinite noun wa i a) because it is said "after any wasiyya he

may have bequeathed or debt (he owed) has been paid. " The obligatory

wa$iyya of Q. 2,180 was introduced by alif-lam. If this wasiyya had

still been in operation when the inheritance verses were revealed the

word was ia would have been expressed in Q. 4 by the article ( J1 ).

The lack of this article suggests that the earlier wasiyya was abrogated. "

From the above arguments, it is confirmed that both jassäs`and

Shafici's primary purpose was to confront the view of Täwus, because

it was accepted by a minority. Further, both scholars were of the view

that this was an instance of the Qur'än's abrogation by the Qur'an.

However, their instances differed from each other regarding the nasikh.

jassäs although an exponent of the Hanafi school, did not follow their

doctrine that the wasiyya was abrogated by the alleged hasdith. His

argument, that the wasiyya was abrogated by "after any legacy he may

have bequeathed or debt (has been paid)" strongly suggests that an

 -121-

atmosphere in favour of ShaficPs doctrine - the Qur'an is abrogated

only by the Qur'an - still prevailed and it partly affected jassas.

However, the example provided by Jassas in order to refute all the

theories regarding the näsikh gives us the impression that he was

c The reason which

far cleverer than Shäfi1. may be put forward is

that Shafici had supported his doctrine by an interrupted ham

dith and

by so-called Ijmäc jassäs was aware of this problem. Therefore,

.

he relied on neither hadith nor on Ijmäc. He created contradiction

within the Qur'an and argued in favour of the existing doctrine that

"wasiyya should not be made in favour of the parents and next of kin. "

Without looking at the Figh, if one pays attention solely to

the Qur'an, it becomes clear that there is no contradiction between the

Qur'anic verses. Q. 2,180 and Q. 2,240 clearly speak about the shares

of the parents, near relatives and widovAs out of the deceased's property.

The verses required that the wasiyya was made in favour of the above

mentioned categories of people. It is the right of a man, granted by

God, to dispose of his property in the way that he desires. It is by

no means illogical. However, Illogicality is caused by the Figh which

tried to distribute the property to outsiders. The Figh doctrine based

on the hardith (concerning six slaves) is irrational and arbitrary.

Further, the legal maxim "la wasiyya li warith" must have originated

in the tafsir of the early scholars and it eventually became a hadith

which was later ascribed to the Prophet.

As there is no positive indication, Q. 4,11-12 does not

contradict vv. 180 and 240, but rather confirms them. One finds
 -122-

repeated indication in Q. 4 that shares are allotted only after the

bequest has been made and the debts paid. This doctrine was not

acceptable to scholars because they were simply under the influence

of the Fiah doctrine which did not allow the was to be made in

favour of the heirs.

CIdda (waiting
period)

Q. 2,180 reads: "It is prescribed for you, when death draws

nigh to one of you and he leaves property, that he make a

bequest to both parents and the near relatives. "

Q. 2,240 reads: "And those of you who die and leave behind

wives, should bequeath in favour of their wives a provision

(maintenance and accommodation) for the year without

turning them out. "

Both the above mentioned verses contain the word wasiyya.

The first step, in order to consider the abrogation of v. 240, was taken

to prove that both verses spoke about one and the same topic. As it

was upheld by the Fugahä' that the wad mentioned in Q. 2,180 was

abrogated, the wad mentioned in Q. 2,240 was also thought to have

been abrogated. This was because it was easier to claim that all

bequests were abrogated by the detailed inheritance regulations of

(28) (29)
Q, 4,11-12. This view was expressed in the words of Qatada.

"Q, 2,240 prescribed bequests before the inheritance verses were

revealed. A man used to make a wa___siyyain favour of his wife and

whomsoever he wanted, but later this was abrogated. God fixed the
 -123-

shares of each heir from the inheritance. If a woman had a child,

He gave her one-eighth of the inheritance and if she had no child,

her share was one-fourth of the whole estate. From the property of

her husband, a widow was entitled to get maintenance for a year and

then she was allowed to move from the husband's house. The ruling

regarding the period of four months and ten nights (CIdda) abrogated

this. The obligation of one-fourth or one-eighth abrogated the bequest

(originally made in favour of her). The wasiyya, however, remained

valid in favour of those relatives who did not inherit. "

ý30ý cAbbäs.
jassäs ascribed this view to ibn Mentioning

Q. 2,240, the latter said: "A widow used to get maintenance and

residence for a year. Ayat al-miräth abrogated this and fixed for her

one-fourth (if she had no child) or one-eighth (if she was left with

children). The Prophet made it clear that no waya was valid in

favour of heirs except with the other heirs'consent. " According to

jassas Q. 2,240 embraced four rulings. "Firstly, the waiting period

for a widow was one year; later, what was more than four months and

ten nights was withdrawn. Secondly, she was entitled to maintenance

and residence from the property of her deceased husband. This was

by the äyat al-miräth from ibn CAbbäs

abrogated as was narrated and

others (Qatada). God had imposed upon the husbands that they should

provide maintenance and accommodation for their wives. This was

abrogated as the wasiyya for the parents and next of kin was abrogated

by the inheritance verses and by the Prophet's haY

dith: 'la wasiyya li

warith. ' Thirdly, the ruling of this verse indicated that mourning was
 -124-

obligatory. This ruling was still applicable as was indicated by

the sunna of the Prophet. Finally, the ruling was concerned with

the wife's departing from the house of her husband. This ruling was

also valid. This was the only verse in the Qur'än which contained

four rulings. Among these, two were abrogated and two were not. "

The assimilation of Q. 2,240 and Q. 2,180 and their subsequent

suppression by Q. 4,11-12 was clearly argued by Shäfici. We have

(31)
pointed out that he put v. 180 with v. 240 and abrogated them by

Q. 4,11-12 relying on an interrupted hadith and so-called I jmäc. He

(32)
claimed, there was no disagreement among the scholars that the

maintenance and residence rights of a widow for a complete year were

abrogated by the miräth. Because the report was weaker in isnäd, the

Ijmäc emerged in order to support the doctrine of the majority. However,

Shäfi°i rejected the doctrine of the Hanafis who argued that the sunna

had abrogated the Qur'an. ShaficPs argument was that the sunna

merely explained the abrogation of the wasiyya. One group obviously

argued that the sunna abrogated the Qur'an and the other held that the

sunna explained the Qur'an, while both groups relied on the same hadith.
(33)
These squabbles suggest that their discussions were purely academic.

Q. 2,234 reads: "And those who die and leave behind wives.

they (the wives) shall wait, keeping themselves apart, for four months

and ten nights. " This verse was considered to be in conflict with v. 240.

But what has made them appear to be in conflict is a matter of further

inquiry. Q. 2,240 does not stipulate that the CIdda for a woman whose

husband died should be one year. It was the Fiqh that formulated the
 -125-

cIdda in the past had been for one year.

ruling that the of a widow

The majority of the scholars were of the opinion that Q. 2,234 abrogated

Q. 2,240; on the grounds that for a short period in Islam when a man

died leaving behind a widow, he would make a wasiyya for his wife,

in order to accommodate her for a year - provided she would neither

leave the house nor re-marry. This situation was abrogated by the
(34)
cIdda and by the inheritance legislation.
of four months and ten nights
ý3S)
The view that v. 234 abrogated v. 240 was outlined in a hadi th in

cAbd Allah cUthman

which b. Zubair was made to ask the reason why

he had recorded v. 2,240 in the Qur'an, since it was abrogated.

cUthman that he was not supposed to withdraw any part of the

replied

Qur'an which he had directly learned from the Prophet.

The idea that v. 234 abrogated v. 240 was questioned by the

authorities who claimed that v. 234 was earlier in revelation than

v. 240. This question was simply discarded by arguing that the order

of the verses in the Qur'an was not the same as that in which they had
(36)
been revealed. Thus the protest against the doctrine was

extinguished. However, according to some this was a case of reduction

from one year to four months and ten nights. Their argument was that

the prayer for travellers was originally of four RakCas but was later
(37)
reduced to two Rakcas. This doctrine was rejected by Nahhas(38)

on the grounds that the ruling prescribed for a widow was to observe

cldda for a year provided she did not leave the house of her husband.

cldda
If she did leave, she, observed the of four months and ten nights.

This, he argued, was a case of abrogation. He continued: "The

 -126-

to do with cIdda. "

traveller's prayer has nothing the In support of

dith from cA'isha

his view Nahhas produced a ham who said: "The

prayer was originally prescribed as two Rakcas which was later

increased to four Rakcas for a non-traveller while the prayer for the

travellers remained in its original form. Nahhas claimed that this

doctrine was held by the majority but was rejected by some on the

CÄ'isha the prayer when she

grounds that was never seen shortening

travelled. Hence contradiction was claimed by Nahhäs' opponents

CÄ'isha had narrated this ha dith, have
suggesting that if she would

acted upon it. According to Nahhas the Fugaha' had answered this

"There was no contradiction, cÄ'isha

question, maintaining: since

was the mother of all the believers: wherever she might alight she

was always with them. For this reason she has never been a traveller.

Her ruling concerning the traveller's prayer, therefore, did not affect
(39)
her. , The idea that Q. 2,240 was abrogated is further expressed

in a hadith series.

Zainab said: 'I visited Umm Habiba, the Prophet's widow, when

her father Abu Sufyän b. Harb died. Umm Habiba asked for some

perfume and smeared herself. After applying it to her cheeks, she

said: "I do not really need perfume, only I heard the Prophet say: 'it

is not lawful, to mourn a dead man for more than three nights except

for the husband, for whom the widow should mourn for four months and

ten nights. "

Zainab said: My mother heard Umm Salama saying, A woman

came to the Prophet and said: "0 Prophet, my daughter's husband

 -127-

recently died; her eyes are troubling her, may I treat them with

kohl? " The Prophet answered, 'No', twice or thrice and said,

"It is only four months and ten nights and one of you women in the

ähili a used to throw a handful of dung at the beginning of the new

year. "

Humaid from Näfic reported that he had heard from Zainab bt.

Abi Salama from Umm Salama or Umm Habiba: "A woman came to the

Prophet and said that her daughter's husband had died. Her eyes were

sore and she wished to treat them with kohl. The Prophet said: 'One

of you women used to throw a handful of dung at the beginning of the

new year; it is only four months and ten nights. ' "

Tabari(40) records these ahaadith involving the Prophet's other

cA'isha. (42)
widows Hafsa and Shafici and jassas mention these

ahadith under the title of mourning and argue that mourning is an

additional duty for the widows. That the Qur'an is silent concerning
cldda for for
the period of one year as an a widow, was compensated

by these ahdith. The Prophet himself had declared, it was argued,

cIdda
that the once had been one year but it was now four months and

ten nights. Thus the view that Q. 2,240 was in contradiction to Q. 2,234

was confirmed. It should be noted that mourning is nowhere mentioned

(43)
in the Qur'an. Shafi°44) says: "The mourning is not mentioned

in the Qur'än, we have accepted it from the Prophet and the Prophet's

command is like the command of God. " jassas(4S) says: "Although

there is an indication in the äj (Q. 2,240) concerning mourning, we

confirm it by the sunna. "

 -128-

The artificiality of their claims is obvious from the discussions

of the question concerning how a widow who does not know about the
cIdda? CAbbäs,
death of her husband should observe Ibn Mascud, ibn

cUmar, cAtal "Her cIdda

ibn and Jäbir b. Zaid said: commences from

CAli,
the day her husband dies, whether she knew or not. " Hasan

b. cUmar held that, "Her °Idda from the day the news
and jallas starts

of her husband's death reaches her. " There was a third view attributed

to Shacbi and Sa%d b. al-Musayyab who claimed: "If evidence of his

cIdda from the day he dies;
death is established, the starts and if

does not stand, cIdda from the day the news

evidence the commences

his death her. CAll that the widow is required

of reaches argued(46)

cldda
to mourn during her and she cannot do so until she knows that

her husband is dead. Further the cIdda is a religious duty which she
(47)
cannot perform unless she is sure that it is due. jassäs said that

CAli in taking but the cIdda is merely

was right care, a passing of

time. There is no difference, whether she is aware of her husband's

death or not. jassas also compares this problem with the miräth which

is due from the day the man dies and not from the day the news of his

death is established. He further argues that the only possibility is

that she omits mourning when she does not know about her husband's

cIdda
death, and it has no affect on the validity of which goes by as

the time passes. If a widow knew that her husband had died, and did
cldda (48)
not mourn, the would not be affected. Shäfici's argument

is that if a widow is unaware of her husband's death, she will start

cldda
reckoning her only when she becomes aware of it. However, if
 -129-

she cannot get the news of her husband's death before the period of
cIdda from the actual
her elapses time of her husband's death, she
cIdda.
observes no

cIdda
Scholars also disagreed concerning the of a pregnant

woman whose husband had died. Q. 65,4 : "For those who are

pregnant, their period is until they deliver their burdens" speaks about

the pregnant divorcees, but it was held that this verse was general and

included all pregnant women including women whose husbands had

died. Jassäs(49) suggested that they have observed this view because

there was no indication to restrict this verse to divorcees only. In

order to make Q. 2,234 agree with Q. 65,4, it was also held that the

former verse was general in its terms, including pregnant and non-

pregnant women, but its restriction to pregnant widows was abrogated

(50)
by Q. 65,4. There were three standpoints regarding this issue.

cIdda
Firstly, the expires as soon as she delivers her burden, i. e.

birth. This view was claimed to be the doctrine cUmar, ibn

gives of

cUmar, cAli CAbbäs

ibn Mascüd and Zaid b. Thabit. Secondly, and ibn

to observe cldda
held that she was required as whichever of the two

periods - either Q. 2,234 or Q. 65,4 - was longer. The third view was

attributed to Hasan who said: "She should not re-marry until the child
(51)
is produced and she is purified after the delivery. "

(52) cAli's
According to Jassäs view was that Q. 2,234

cldda by Q. 65,4 cIdda

prescribed months and required the completion of

by giving birth. In order to confirm the ruling of both verses he

cldda
combined them and observed that the of the pregnant woman is
 -130-

the longer of the two periods. While ibn Mas°ud said: "Whosoever

wishes I challenge him to engage In mutual oath-taking, that Q. 65,4

was revealed later than Q. 2,234. " Therefore, we get the impression,

said Jassäs, that Q. 65,4 was general in applying both to the divorcees

and the widows (pregnant). It does not matter that the verse was

mentioned after the talk legislation, since all agreed that after the

expiration of four months and ten nights she would not be permitted to

re-marry until she had given birth. The idea that a widow was free to

re-marry after the production of a child was propounded by the following

(53)
ahädith.
T"

Umm Salama said that Subaica bt. Harith gave birth forty nights

after the death of her husband. The Prophet allowed her to re-marry.

Abu Sanabil b. BaCkak said that Subai°a was relieved from her

burden twenty nights after the death of her husband. The Prophet

ordered her to re-marry.

CAbbäs
Sulaiman b. Yasar reported that ibn and Abu Salama

fatwa in question. Ibn CAbbas

were asked to give on the problem

said: "It is the longer of the two periods. " Abu Salama said: "When

she gives birth she can re-marry. " Abu Huraira was there and said:

Abu Salama's " They all cAbbäs'

"I follow view. sent Kuraib, ibn

freed man, to Umm Salama, the Prophet's widow, who declared that

Subaica had given birth only nights after her husband's death and was

allowed to re-marry.

cAbbäs CAR, in fact, to preserve

Ibn and wanted the rulings of

both verses and considered that Q. 2,234 had not been repealed. Yet
 -131-

they adopted the rule, as did the others, that if a widow were

pregnant after the expiration of four months and ten nights, she

could not re-marry until she had given birth. In either of the above

mentioned reports the number of the nights is not confirmed. One

gets the impression that scholars were engaged in tafsir in order to

settle the disputes which had arisen among themselves. The reports
(54)
merely tell us that the application of Q. 2,234 was unstable.

There was further division of opinion concerning a widow's

cIdda. Q. 2,240 and Q. 65,1 were
going out during her On this point,

confounded with each other. In the former verse the phrase " Z.:1 rs"

('They shall not be evicted') occurs. The latter verse reads: "You

shall not evict them from their matrimonial houses, nor shall they go

out. " Interpreting this last verse jassäs(55) says: "A husband was

forbidden to remove her from his house during cIdda;

the she was not

allowed to leave her husband's house. " The concept that divorcees

were not allowed to go out was then extended to widows. Shäfici(56)

says: Q. 65,1 is concerned with the divorcees. The widow has to

cldda in the same way as the divorcee. Therefore,

observe it was

possible that the obligation to provide accommodation for the divorcees,

and prohibition of their eviction was applicable to the widows. The

sunna indicated that the widow should stay in her matrimonial house

"until the book expired" (Q. 2,235). It was also possible that the

ruling was concerned only with the divorcees, and not the widows.

It was the duty of the husband to accommodate a divorcee because he

owned his property but the dead husband was not obliged to accommodate
 -132-

the widow, since the property was now owned by his heirs.

Shafici then produces a hadith to show that the widow was obliged

house until her cIdda.

to stay in her husband's she completed

Furaica bt. Malik b. Sinan, the sister of Abu Sacid al-Khudri, reported

that she came to the Prophet and asked for his permission to return to

her family tribe of Khudra, - when her husband went forth to capture

his runaway slaves, they had killed him. She said, "I asked the

Prophet to return me to my family because my husband had left nothing

for me. The Prophet answered in the affirmative. - As soon as I

departed from him and was near to the door of the Mosque, he called

me back and asked me to repeat the story. After I had told him the

story he said: 'Stay in your house until the book expires. ' She said:

cldda home.
'I completed four months and ten nights at my matrimonial

cUthman, during his caliphate called me and asked about the matter.

I told him the ruling, he accepted it and judged accordingly. ' "

The wording of this hadith "until the book expires" is borrowed

from Q. 2,235: e. %c ly, :, i 9". This gives

rtWl

rise to the suspicion that the authenticity of the haY

dith is doubtful.

Further, the judg'ement "stay in your house until the book expires" was
(57)
interpreted in two ways. Firstly, scholars held that the wording

"stay in your house " implies that the widows are entitled to stay
...

husband's house as long as they are in their cIdda. Secondly,

in their

the wording means: stay in your house so long as you are not evicted.

The argument of the scholars who held this last view was that it was

up to the heirs to accommodate her. If they did not accommodate her,

 -133-

it was their right not to do so, because they owned the property

after the husband's death. She was not entitled to maintenance

and accommodation, because the moment her husband died the property

ceased to be owned by him.

Malik allows widows to pay calls after the night prayer.

According to the Hanafis the widow can go out during the day but she

has to spend the night in her home. The idea behind this rule was

during her cldda,

that not being entitled to maintenance she had to

earn some money in order to meet her demands. The logic of this rule

is a subject of interest. The words ý! 'ý " mean, 'The widows

should not be evicted. ' This subsequently means that the widows have

the right to accommodation. It would certainly provide the widows

with an extra share from the property which would be against the

doctrine. This led the scholars to allow the widows to go from their

houses during the day and earn some money for themselves. The idea

was strengthened on the authority of ibn Massud who had allowed the

widows to go out and exchange visits. However, they had to come

(58)
back to spend the night at their homes. Shaficiý59ý extended the

isnäd to the Prophet: "The widows whose husbands were lost at the

battle of Uhud complained of loneliness to the Prophet and he allowed

them to visit each other during the day. "

(60)
jassäs' interpretation of the words &" is no

less than confused. This tells us that he was also confronted with the

settled doctrine, i. e. the widow should stay in the house during her

cldda, but was not entitled to maintenance allowance. Interpreting

 -134-

v. 240 he says: "Her maintenance and accommodation rights were

abrogated. " He further says: "The ruling not to remove her from

the matrimonial house was still applicable. " These two statements

obviously contradict each other. In order to avoid inconsistency

arising from his own interpretations, he remarks, "There is a

possibility that the phrase " : j-

- I, c" was abrogated,
Ob
r- because it
r-I

means that the widow was entitled to accommodation from the property

of her husband. Since the right was abrogated, the prohibition of

her going out was also abrogated. However, has two

meanings. Firstly, the obligation of accommodation from the husband's

property; and secondly, the prohibition of both moving out

and eviction " - ". " Because the widows were not allowed
ýýý---

to be evicted, he says, they were certainly commanded to stay

it--1 " at their homes. Although the obligation to provide her

accommodation was abrogated, she was obliged to stay in her husband's

CIdda.
house during her

The divorcees in any case were not allowed to leave their

homes during cldda, because

matrimonial their the Qur'an had

stipulated this. But the reason the widows were involved was clearly
(61)
outlined by jasss. The idea, in fact, was to refute the doctrine

cAbbäs cAtal held that to complete

of ibn and who a widow was entitled

cIdda God Himself had said: "If they leave

her wherever she wanted.
CAta'
(the residence) there is no blame on you. " said: "When God

revealed Q. 4,11-12, her right to maintenance was abrogated. Therefore,

CIdda
she could spend her wherever she wanted. " Jassas argued that
 -135-

her staying in the home did not contradict the obligation of miräth.

The Furaica hadith conveyed two meanings. Firstly, the ruling for

a widow to stay in the house in which her husband died, was

obligatory. Secondly, the widows had the possibility of going out

because Furaica had gone out to ask her question. Had her going

out been objectionable, the Prophet would have scolded her. According
(62)
to Nahhäs, this hadith is clearly against the doctrine held by ibn

CAbbas. The scholars the widow to spend her cIdda

who allowed
cAl1, ibn CAbbäs, cAtä', CAbd
wherever she wanted included J bir b.

ckisha. They appealed to the Qur'an: "But if they leave

Allah and

(the residence) there is no blame on you. " It was now up to the

scholars to choose how they interpreted the verse. jassäs said:

cIdda.
implies after she has completed her Nahhas

quotes different wordings in order to refute the above, mentioned five

scholars. He says: "the words li v. 234 mean,

they must shut themselves away from all things including going out.

According to Tabari(63) these words mean to refrain from re-marriage,

beautification, adornment and retiring from the husband's house. Ibn

CArabi (64)
al says: " __# " means waiting and it involves marriage,

perfumes, beautification and going out. He further says that the

Furaica hadith shows that the widows choice of removing or remaining

was abrogated. On the basis of this hardith, he entitles the widows to

accommodation.

Taking a neutral look at the above mentioned verses, we come

to the conclusion that there is no contradiction between v. 234 and 240.

 -136-

Both verses treat different topics in their entirety. V. 234 prescribes

cIdda for
four months and ten nights a widow and obliges her to keep

herself in waiting during this period for re-marriage. V. 240 provides

maintenance and accommodation for a widow for the whole year from

the property of her deceased husband. These two rulings are easily

reconcilable. The widow would not re-marry for four months and ten

nights and she would continue to get maintenance and accommodation

for another seven months and twenty nights (provided she did not leave

her matrimonial home). However, if she chose to leave her home after
cIdda,
the completion of her neither she nor her husband's heirs would

be blamed for her so doing.

The Qur'anic right which gives a widow maintenance and

accommodation was connected with the wasiyya prescribed by Q. 2,180.

Thus, it was argued that all the bequests were abrogated by Q. 4,11-12

(in order to avoid setting up two classes of beneficiary). The scholars

ignored the fact, as we have already mentioned, that the verse by

which they claimed the abrogation had occurred had itself repeated four

times that the shares were allotted after such bequests had been made.

If we take it for granted that the word means, they

must shut themselves away from all the things including moving out,

then vv. 234 and 240 still individually carry weight. The widow will

remain in the house for four months and ten nights as Q. 2,234 prescribes

but during the remaining seven months and twenty nights she will be

free to go out as v. 240 reads: "If they go forth, then there is no blame

upon you. " However, they shall not be forced to go out as the wording
 -137-

(65)
11r-I,,.;. I & 11suggests Interpreting v. 234, Mujähid asserted
.

"the Cldda
that, of four months and ten nights was a starting point.

Then God revealed Q. 2,240 and extended cIdda from

the period of

four months and ten nights to one year. If the widow wanted she

could stay in her wasiyya for a year and if she wanted she could go

out after the completion of four months and ten nights. This is what

God said: Without eviction, if they go out then there is no blame on

you. "

(66)
This report rejects all the claims that v. 240 was revealed

earlier than v. 234 and hence breaks down the theory of certain scholars

cldda had ever been for a complete

that the for a widow year in Islam.
cIdda had been one year was propounded to break
The view that the

down the harmony of vv. 234 and 240, and, thus, to ensure that the

widows were not entitled to accommodation and maintenance for a full

year. Once it was believed that v. 240 was abrogated, no widow was

able to claim her double share from the property of her deceased husband.

Fantastic links were made between the different Qur'änic verses in order

to justify the Figh doctrines. To make this effective, external elements

tafsir, hadith or sunna) were involved. V. 2,180 was connected with

v. 240. V. 240 was connected with v. 234. Similarly, unnecessary

links were set up between the verses concerning divorcees and those

concerning widows. If the scholars had taken the Qur'an as the direct

source of law, without involving the tafsir of their predecessors, no

difficulties and confusions would have resulted.

A modern scholar(67) argues: "Q. 2,240 provides wasiyya for

 -138-

a whole year and during this period widows are not allowed to go

out. However, if they desire to leave their matrimonial homes

there is no blame upon the heirs because they have no power to shut

the widows away. How could the scholars bar the widow from

getting her share from the deceased's property since the wasiyya is

known to be repeated four times in Q. 4,11-12? "

 -139-

CHAPTER SIX

THE ABROGATION OF THE WORDING BUT NOT OF THE RULING

According to this mode of naskh, the wording of a particular

verse does not exist in the present mushaf while the ruling remains

valid for the Figh. In the history of al Näsikh wa-1 mansukh three

instances of naskh al-tilawa duna al-hukm have been discussed so far.

They are: äyat al-Rajm, ayat al-Ridac and Kaffarat al-Yam-in. The

first of these is embraced by Shafici's followers, for technical reasons.

The second of these is accepted by Shafici himself. Therefore, one

would be justified to say that he was the first person to invent this

mode of naskh. The third instance is a peculiarity of the Hanafis.

a) Kaffärat al Yamin.

Literally, Kaffara means "what covers the sin. " God speaks

about some definite Kaffäras in the Qur'än, and one of them is Kaffarat

al-Yamin which is imposed upon a Muslim who fails to fulfil his

deliberate oath. The verse involved in this connection reads: "God

will not call you to account for what is futile in your oaths, but He

will call you to account for your deliberate oaths. For expiation (of

breaking an oath) feed ten indigent persons on a scale of the average

intake of food for your families, or clothe them, or give a slave his
(1)
freedom. If this is beyond your means, fast for three days "
...
(2)
The Hanafis argued that these three days should be consecutive,

because the wording 'mutatabicat' had existed in cAbd Allah b. Mascud's

 -140-

mushaf. It was also held that Ubayy b. Kacb used to recite "fast
(3)
for three consecutive days ( bl-I I - } ). ,
f1 -.. fLý

According to one report Qatäda(4) had also accepted this reading.

(5)
Arguing in favour of his companions jassäs says: "It is

'mutatäbiatc ` does not exist in the mushaf.

known that the wording

Therefore, its recitation is not permissible. However, the wording

cAbd Allah b. Mascud in the time of the companions

of was widespread

of the Prophet. We know that abrogation is not possible after the

demise of the Prophet. Were it possible, we could not feel safe

ca death
from (the belief) that the Shari at the time of the Prophet's

would have been double that which is now in our hands. Were that

possible, we would have nothing left from what we had in the lifetime

of the Prophet. It would not be held true that God Himself had caused

the people to forget or had withdrawn the wording from their minds, but

later had inspired and composed (the Shari a) in the hearts of the people.

One who held this view would be excluded from the number of the

Muslims. Thus, it is certain that the expiation for breaking an oath

days because the wording cAbd Allah b.

is three consecutive of

Mascüd's mushaf was abrogated in the lifetime of the Prophet. The

Muslims were commanded not to read this wording as being of the

Qur'an and not to recite it in the Salat as being Qur'änic. That was

the reason why the wording could not reach us as the rest of the Qur'an

had reached us. The wording was withdrawn while its ruling remained

valid. Had it been possible to accept that the wording existed after

the demise of the Prophet, it would have reached us in the same way
 -141-

as the rest of the Qur'an had reached us. Since the wording did

not reach us, this indicates that it was abrogated before the Prophet

expired. If someone were to argue that the ruling has not reached us

except by Khabar al-wahid and Khabar al-wahid cannot decide the

content of the Qur'an, he would be answered by our saying that the

ruling had been widespread and the wording of the ruling recited.

Thus, the ruling was confirmed. As far as the wording was concerned,

it did not reach us in the same way as the ruling had reached us.

Further, it was possible that the wording could have disappeared while

the ruling did not. " This argument was not satisfactory to Jassäs'

opponent who asked why the wording had not reached us since the

mode of arrival for both the ruling and the wording was the same?

jassäs remarked: "It was not necessary that the ruling should be

abandoned when the wording had been abandoned, because the abrogation

of one without the other was possible. Moreover, the ruling was

confirmed by tawätur while the wording was not. "

Sarakhsi(6) also claimed that the fasting in expiation of breaking

CAbd Allah b. Mascüd's
an oath according to mushaf was three consecutive

days. He argued: "This reading was well-known until the time of Abu

Hanifa but its wording was not widespread as was the rest of the Qur'an.

There was no doubting ibn Mascud's honesty. There was no alternative

but to say that it was recited in the Qur'an - as ibn Massüd had

remembered it - but its recitation was abrogated in the lifetime of the

Prophet. God turned it away from the hearts of the people but did not

turn it away from the heart of ibn Masud, so that the ruling should
 -142-

continue to be transmitted. The ruling of Khabar al-wahid must be

implemented. The recitation is not binding except when it is

transmitted by many to many. The continuation of the ruling is not

dependent upon the continuation of the reason which had first made

it obligatory. Therefore, it is argued that the abrogation of the

wording does not affect the continuing validity of the ruling. "

(7)
According to Tabari, if feeding ten indigent persons, or

clothing them, or freeing a slave is beyond the means of the one who

has to expiate for breaking an oath, then the three days' fasting would

suffice, whether the days were consecutive or otherwise (because God

obliged him to fast only for three days). In whatever way he fasted,

it would suffice. As far as Ubayy b. Kacb and ibn Mascud's readings

are concerned, that it was for three consecutive days, this is

contradictory to what is in our masaahif. It is not permissible to accept

any view which is not in our masaahhif. 'However, I maintain, said

'that
Tabari, the faster who has to expiate for the breaking of an oath

should fast for three continuous days. There is no disagreement among

the scholars that this will suffice; others disagree as to whether

fasting on non-consecutive days will suffice, as expiation. It is

preferable to implement the practice concerning which there is no

disagreement, even if the other practice is considered lawful:

According to one report, Shäficir(8) said: The expiation for

breaking an oath is three consecutive days of fasting. In another

Shäfi ci(9)
report said: For all those for whom fasting is obligatory,

when there is no condition laid down in the Book of God that the three
 -143-

days should be consecutive, it will suffice if the fasting is

distributed. "

Muzani(10) argued that God made the condition that for the

expiation of zihar(il) (form of divorce) fasting should be consecutive,

and the fasting for expiation of an oath was similar. Shäfici had

specified that the expiation of zihar should be by the freeing of a

(12)
Muslim slave relating it to the expiation of killing. It is the more

necessary for him to accept taCabuc in the case of the expiation of an

oath because it is similar to the atonement of zighar.

b) Ayat al-Rida°

We have already the ahh dith concerning ayat al-

recorded(13)

Ridäc on which Shafici had based his judgement. We have also

T

pointed out that Shäfici's main aim in producing these aha dith was

twofold. Firstly, to base his judgement on the verses which do not

in the present mushaf and thus to document naskh al-tilawa duna

exist

al-hukm. Secondly, to refute the doctrine of the Malidis who had

based their judgement directly on the Qur'an. Malik had known these

ahadith but did not rely on them. Malik followed the opinion of SaCid

b. al-Musayyab who had claimed that one suckling by itself constitutes

a bar. After quoting Makki's view we produced jassäs' criticism.

Here we shall enhance the arguments which he has discussed in his

usul.

(14)
According to jassas, Shafic1 had argued that five sucklings

constituted the bar; he based his judgement on what was related on the
°Ä'isha: "In what was revealed in the Qur'än, ten attested
authority of
 -144-

sucklings ", and on the report of other ham

dith in which it was
...

held that the wordings were written on a sheet which was placed
CÄ'isha's bedding. "When the Prophet became sick we were
under

busy because of his ailment, and a domestic goat entered and swallowed

it up. " The one who accepts these ahadith may mean that naskh of

the wording of the Qur'dn was possible after the death of the Prophet

or that it was not possible. If he accepted the first view, he certainly

committed an abominable and disgusting act and followed the way of

the heretic who argued that the greater part of the Qur'an had not reached

us and that much of it was lost. If he declared impossible the abrogation

of the wording after the demise of the Prophet, his own argument would

be nullified because dith reads

the ham that the Prophet died and the

in the Qur'an. CÄ'isha had said:

wording of the verse was still recited

"The Prophet died and the verses were recited in the Qur'an. " Were

the report confirmed by Shafici, he should have proved it, yethe confessed

that abrogation was not possible after the demise of the Prophet.

jassäs' opponent told him: "We confirm only the ruling but not

the wording in the same way as you confirm the ruling for the äyat al-

tatäbuc but not the wording. " He answered: "The wording of ibn

Mascud did not record the following: 'the Prophet died and it was written

in the Qur'an'; its recitation for a short time did not mean that it should

be found for ever in the Qur'än. As the wording of ibn Mascüd had not

reached people by way of tawätur, one should not consider it Qur'änic

after the demise of the Prophet. While the report of CÄ'isha

clearly

says that it was in the Qurän before the Prophet expired. If that were
 -145-

to be confirmed by Shäfioi, then its abrogation was impossible.

Moreover, it was mentioned that the goat had eaten up the sheet of

paper. It is not sound to hold such a view of the Book of God

because "falsehood cannot come at it from before it nor behind it"

(Q. 41-42). It was said that the goat had eaten it up and this wording

disappeared after the death of the Prophet. "

jassäs required to show what the hadith meant to him. In

answer to this he replied: It is probable that the wording has been

from what was originally in the hadith. °A'isha

altered narrated might

have said that it was what God revealed or that it was in the Book of

God or some similar words. She might have said that the wording

was in the Qur'an or that it was a wahy other than Qur'an. The narrator

thought that the meaning of all the wordings was the same. It might

be that the wording CÄ'isha hadith

of the meant that it was in the Qur'an

until the Prophet died. When all these interpretations were possible,

the argument could not be advanced particularly when the Qur'än and

the consensus of the umma rejected this possibility. God said: "We

revealed the Reminder (the Qur'an) and Vk verily are its guardian (Q. 15,9);

It is for Us to collect it and to promulgate it but when We have

promulgated it, follow its recital (as promulgated). More, it is for

Us to explain it (Q. 75,17). "

It was insisted that jassäs should accept the ruling, even if

he did not consider the wording obligatory (as he had accepted the

ruling of äyat a1-tatabuc). To explain the difference between the two

he pointed the CA'isha hadith

verses, out: was very weak and faulty
 -146-

and because of its unsoundness, no argument could be based on it.

Since the wording of the hadi was not confirmed and there was no

way of judging the exact condition of the original wording, it was not

possible to confirm its ruling. It was possible that the narrator

might have omitted some of the wording. It was also possible that

the wording was concerned only with the suckling of adults. As we

could not recover the exact meaning of its wording and content, the

protest should be withdrawn. As far as the wording of ibn Masoud

regarding tatäbuc was concerned, there was nothing by which it could

be repudiated. Moreover, it was held that the wording was in the

Qur'an. This meaning was believable and not to be rejected. Having

once been in the Qur'an before the death of the Prophet should not

mean it should remain there after the death of the Prophet.

c) The background to the stoning penalty for adultery.

Q. 5,42-44 read: "They (certain Jews) are fond of listening

to falsehood, of devouring anything forbidden. If however they come

to you judge between them or refuse to hear them. If you refuse to

hear them, they will not harm you. If you judge, judge between them

equitably. For God loves those who judge in equity. " "But why

should they come to you for judgement while they have the Torah in

which is God's verdict? Yet even after that they turn their backs "
...
"We revealed the Torah in which is guidance and a light, by which the

Prophets who surrendered to God's will judged the Jews; the Rabbis

and the Doctors of Law also (judged) by God's Book, which they have

preserved, and they are witnesses thereto whoso does not judge
...
 -147-

by what God has revealed; they are unbelievers. "

Q. 5,48 and 49 state: "We revealed to you the Book in truth,

confirming and verifying the scripture that came before it. Therefore,

judge between them by what God has revealed "So judge

.. ."

between them by what God has revealed... "

Scholars differed as to the reasons for the revelation of these

verses. A minority of the exegetes argued that the verses were

revealed to regulate the rules regarding the talion. The majority,

however, argued that the verses referred to the penalties for adultery.

(15)
According to some the tafsir of vv. 42-49 displayed that the

Jews had the habit of kitmän (concealment). The idea in fact was

borrowed from some verses of the Qur'an. For example, Q. 2,75-76

advised Muhammad and the Muslims not to expect the Jews to believe

in Muhammad's message, because a group of them after hearing the

word of God had perverted it. Q. 2,59 and Q. 7,161 read that the Jews

had changed the word from that which had been given to them. Q. 2,146

stated that the Jews were aware that the Kacba was the gibla as they

were aware of their own sons; but also stated that some of them

concealed the truth about it. The tafsir of vv. 41-49, it was argued,

clearly stated that the Jews continued their habit of concealment in the

lifetime of the Prophet. Muslim scholars preserved this attitude in

their discussion and interpretation of Qur'änic verses which they thought

had some connection with the Jews. The Jewish attitude is preserved

in the form of anecdotes which were regarded as causes for the

revelations for the above mentioned verses. These anecdotes, which

 -148-

we shall record later, according to some, suggest that the origin of

the stoning penalty was the Torah. Others maintained that it had

originated within Islam. They were further divided in their attempts

to solve this issue: whether it was based on the Qur'an, or whether

it was established by the sunna of the Prophet. The expression

'Kitab Allah' contained in the following ahädith, was the common clue

for the supporters whose theory was that the origin of the 'stoning' was

the Torah and also for the supporters who claimed that it was the Qur'an.

Abu Huraira and Zaid b. Khalid al-Juhani reported(16) that two

men brought a dispute before the Prophet. One of them said: "Oh,

messenger of God, judge between us according to the 'Book of God'. "

The one who was more knowledgeable than the other in legal matters

said: "Yes, oh messenger of God, judge between us according to the

'Book of God', and permit me to speak first. " After getting the Prophet's

permission, he said: "My son was a labourer under this fellow and

fornicated with the man's wife. He told me that my son was liable

to 'stoning' but I ransomed my son with one hundred sheep and a slave

girl of mine. Then I asked the learned men who informed me that the

stoning penalty was to be exercised on the man's wife. " Thereupon

the Prophet said: "By Him who holds my soul in His hand, I will judge

between you according to the 'Book of God'. As far as your sheep and

slave girl are concerned, they are to be restored to you. " Then the

Prophet flogged the son with one hundred strokes and banished him for

a year. The Prophet ordered Unais al-Aslami to go to the man's wife

and in the event that she confessed, to carry out the stoning penalty.
 -149-

She confessed and he stoned her.

This hadith supports several claims: that the penalty for the

married fornicator is stoning; that the penalty for the unmarried

fornicator is one hundred strokes and a year's banishment and that

guilt can be ascertained by confession.

The second hadith(17) which bears the expression 'KitäbAllah'

°Abbas "I heard oUmar ' Stoning

is reported by ibn who said: saying:

in the 'Book of God' is due against those men or women who commit

adultery after becoming muhsan, when valid proof is established,

pregnancy occurs, or confession is made. ' 11

This hadith extends the penalty to those who are ready to confess

their crime, when valid proof is provided or when pregnancy shows the

guilt.

There was further development of the view concerning the

°Ata' (18)
validity of v. 42. Ibrahim, Shaobi, and Qatäda were of the

opinion that v. 42 was confirmed and a Muslim judge had a choice either

to judge the Jews or to ignore them. Tabariý19) accepted this view and

argued that naskh could not play any role unless the second ruling

totally conflicted with the first; and unless it was impossible to apply

the two rulings together. It is absurd to say that v. 49 has abrogated

v. 42. In the explicit meaning of the revelation there is no indication

that one of them has abrogated the other; one ruling has not contradicted

the other. There is no report from the Prophet that one of them is the

abrogand of the other; there is no consensus of opinion concerning the

 -150-

abrogation of either verse. It is feasible from what we have said

that one ruling verifies the other. There is no abrogation of one

ruling by the other.

The contrary cIkrima, Suddi,

view was ascribed to Hasan,

cUmar b. CAbd (20)

Mujähid and al-cAziz. According to their view,

a Muslim judge was obliged to hear such a case. It was argued that

the freedom of choice - to hear or to refuse - had been abrogated by

(21)
vv. 48-49. jassäs favoured this doctrine. His criterion in

judging these verses was based on a report from the companions and

the successors. If that sort of report, concerning the date of the

rulings was found, it indicated that naskh had occurred. He reported

cIkrima,
that, according to Mujahid and v. 49 was revealed later than

v. 42. Therefore, it was the abrogand of the earlier. He further

argued that these two situations could not be combined together

concerning one person in one situation. According to jassas, v. 42

was valid and its ruling was established for the time being; but later

God revealed v. 49 and it indicated that the choice mentioned in v. 42

was abrogated.

Reports also conflicted over the problem of the basis of

judgement. Zuhri argued that a Muslim judge should base his judgement

on the 'Kitäb Allah'. Qatäda said the basis of judgement should be

what God had revealed. These scholars leave the expression 'Kitäb

Allah' ambiguous and thus represent possibly one tendency according

to which judgement might be based outside the Islamic source., Lo. "the

Torah. Mujähid, however, clearly says that 'Kitäb Allah' implies

 -151-

(i g) ("our Book"). The same idea was reported from the

CAtä' cAmr b. Shucaib. (22)

authorities and The expression 'Kitäb

Allah' found in the above mentioned ahh dith was not clear. It helped

to generate two clear elements in Islamic scholarship. According to

one 'Kitab Allah' meant the Qur'an and according to the other it meant

the Torah. Both views are preserved in the form of aha dith.

(i) The Torah-source theory.

cAbd Allah cUmar (23)

b. reported: The Jews came to the

Prophet and mentioned that a man and woman from among them had

fornicated. The Prophet said to them: 'What do you find in the Torah

concerning Rajm? ' They replied: 'We dishonour them and they are

flogged. ' cAbd Allah b. Salläm said: 'You are lying; it contains the

stoning verse. ' They brought the Torah and spread it out. One of

his hand äyat the verses before

them put over the al-Rajm and recited
CAbd Allah b. Sallam said to him: 'Lift
and after it. your hand. '

The man lifted his hand and there was the verse referring to stoning.

The Jews said: 'Oh Muhammad, he spoke the truth; the 'stoning verse'

is in the Torah. ' Thereupon, the Prophet gave his order and the couple

were stoned. "

In this version the Kitäb Allah was alleged to be the Torah.

Most probably, the story was designed to show the occurrence of Jewish

Kitman, especially their concealment of the stoning penalty for adultery.

The story lacks information as to whether the couple stoned were muhsan

or otherwise. However, it clearly responds to the question that the

penalty was exercised by Muhammad on the basis of the Mosaic enactment.

 -152-

Q. 5,43: "But why should they ask you to judge them while

they have the Torah, in which is the verdict of God" was interpreted
(24)
by ibn Zaid: "When a nobleman fornicated with a woman of a

lower class, the Jews would stone her and blacken the face of the

nobleman and put him up on a camel, facing the rear. When a low

caste man fornicated with a noblewoman, they would stone him and

put her up on the camel. The Jews brought the latter case to the

Prophet and he stoned the noblewoman. The Prophet, however, asked

the Jews "Who is the most learned among you in the Torah? " They

said: ''So and so', the one-eyed. ' The Prophet sent for him and

when he approached, the Prophet questioned him: 'Are you the most

learned in the Torah? ' He answered: 'The Jews say so. ' The Prophet

said to him: 'I adjure you by Allah and by the Torah which He revealed

to Moses at Mt. Sinai what do you find in the Torah concerning

,

fornicators? The man replied: 'Oh, Abu al-Qasim, they stone the

common woman and put the nobleman up on a camel; they blacken

his face and they make him face towards the rear. They stone the

common man when he fornicated with the noblewoman and do to her as

they do to the nobleman. ' The Prophet again said: 'I adjure you by

Allah and by the Torah which He revealed to Moses at Mt. Sinai.

What do you find in the Torah? ' The man showed hesitation. The

Prophet started adjuring him until the learned man said: 'Oh, Abu al-

Qäsim, I find in the Torah the words: al-Shaikh wa al-Shaikha idhä

zanayä f-arjumu huma a1-battata'. The Prophet said: 'That is it.

Take them and stone them. ' "

 -153-

The version ibn cUmar's "I was among

ends with words:

those who stoned them. The man was leaning over her and protecting

her from stones until he died. " This hadith quotes the wording of

the Torah concerning the stoning penalty, and it elaborates the

previous version. It further displays that it was influenced by the

Muslim doctrine on the Jewish Kitmän.

(25)
Abu Huraira said: "The Jewish scholars assembled at the

synagogue when Muhammad first arrived at Medina. One of the Jews

(26)
had fornicated, after Ihsan, with a Jewish woman, after her Ihsan.

The Jewish scholars said: 'Take them to Muhammad and ask him what

rule should be applied? Let him judge this couple. If he treats

them according to your practice, follow him, for he is a king. But if

he orders them to be stoned, beware of him lest he might deprive you

of what you have in your hands (i. e. religious leadership). ' They

came to the Prophet and after telling him the story promised to apply

his judgement. The Prophet walked until he reached the synagogue.

Thereupon the Prophet said: 'Bring me the most learned among you. '
CAbd Allah b. Suriyä 'the one-eyed',
Among the most learned were

Abu Yasir b. Akhtab and Wahb b. Yahudha. They agreed upon Abu

Suriyä's scholarship and when he came forward the Prophet said: 'I

adjure you by Allah, and by His bounties which He had bestowed upon

Bani Isrä' i1. Do you not know that God, In the Torah, had decreed

the stoning penalty for one who committed zinä after ihsän? ' He

replied: 'By God, yes, oh Abu al-Qasim. The Jews know that you are

a genuine Prophet but they are jealous of you. ' The Prophet ordered
 -154-

them and the couple were stoned at the door of his mosque.

The Prophet in this version is made to inform the Jews that

the penalty for adultery decreed in the Torah was stoning. The Jews

were made to admit in their own words the genuineness of the Prophet

and their distortion of the words of the Torah. This hadith mentions

that the penalty exercised was on the muhssa_ncouple.

r-f

Suddi(27) remarked: "God revealed to Banu Isra'il when one

of you fornicates stone him "oýý li a>I 31." The Jews had
ýL", 9-Vi

been observing this penalty until one of their aristocrats fornicated.

When Banu Isrä'il agreed to exercise this penalty on the aristocratic

man, some of their noblemen objected and the stoning was abandoned.

Later a man of their lower classes fornicated and they agreed to apply

this penalty to him. But the folk of the lower class objected by saying:

'Do not stone him until you bring your (aristocratic) fellow and stone

them together. ' Thereupon, all agreed to suppress stoning and replaced

it with forty strokes and blackening the face. This practice continued

until the Prophet came to Medina. Then a high class Jewess, named

Busra, fornicated. Her father sent some of his companions to ask the

Prophet about the penalty which God had revealed to him. The Prophet

declared that it was the Ra]m. "

This story also mentions the 'stoning verse. ' Thus, one finds

two wordings of the alleged 'stoning verse' in the Torah: 'When one of

you fornicates, stone him'; 'the elderly man and the elderly woman,

if they fornicate stone them outright. ' This story does not help one

to understand whether the penalty mentioned was for the non-virgin only.
 -155-

However, the point which should be noted is that the Jews approached

to ask Muhammad what had been revealed to him - the Qur'an. This

story might then be taken as an attempt to show that both the Torah

and the Qur'an were the sources of the 'stoning' penalty and in both,

the 'stoning penalty' was prescribed.

b. c Äzib(28) "The Prophet by a Jew who

Barra' said: passed

had been flogged and had his face blackened. The Prophet called for

their most learned man and said: 'Do you find this penalty (flogging

and blackening of the face) concerning fornication decreed in the Torah? '

He replied: 'Yes. ' The Prophet said: 'I adjure you by Him who

revealed the Torah to Moses. Do you find this penalty in this Torah? '

The learned man replied: 'No, ' had you not adjured me I would not have

told the truth. We found stoning was inflicted for such a crime, but
(29)
when fornication became widespread among the Jewish upper classes

we abandoned it. If someone of the lower class fornicated, we

exercised the stoning penalty on him. Later, we all agreed to replace

it with flogging and blackening of the face. ' The Prophet declared:

'I am the first to revive your commandment, oh God, after they had

suppressed it. ' "

The Prophet, in this version, is made to show that the Jews

had distorted the real penalty and had replaced it with a lighter penalty.

Further, the version was meant to state that the Prophet had already

known the 'stoning penalty' as described in the Torah.

All the above mentioned tafsir ahädith were propounded to show

that the origin of the Islamic stoning penalty was a revealed source -
 -156-

the Torah, and subsequently the practice was based upon this act

of the Prophet. The second aim of these ahadith was perhaps to

counter-act the Jews' objection: that the Prophet was a liar and,
(30)
therefore, not to be believed. The Jewish distortion and

:. concealment of the stoning penalty were considered as the causes of

the revelation for vv. 41-44. v. 41 speaks of tahrif al-Kalim which is

understood by Tabari as the hukm of the verses. According to Zuhri,

(31)
the word bil ist referred to the stoning penalty. There was a

further view, as we have pointed out earlier, which showed that the

reason for the revelation of these verses was not the matter of stoning

but the laws governing blood-money and retaliation. This view was

also developed as anti-Jewish propaganda. However, both reflect

views that the Kitab Allah means the Torah.

(ii) The Qur'an-source theory.

Some scholars held that the source of the stoning penalty was

the Qur'an, not the Torah. Their argument also referred to Kitäb Allah,

which they understood as the Qur'an. It might be argued that this view

was developed by certain scholars as a reaction against the Torah-source

theory, for they wanted to keep the origin of the stoning penalty within

Islam.

(32)
Malik records a hadith in which the very wording of the

'stoning is claimed to be part of the Qur'an. When cUmar b.

verse'

al-Khattäb returned to Medina from the pilgrimage, he addressed the

people, saying: "Oh people, the norms have been established for

you; the duties have been laid out for you and you have been left
 -157-

clear signs, unless you lose your way with the people to the left

or right. " He struck one of his hands against the other, saying:

"Beware lest you suppress the ayat al-Rajm by saying, we do not

find two penalties in the Book of God. The Prophet stoned and we

have stoned. By Him in whose hands is my soul: if it were not

CUmar had added something

that the people might say that to the Book

of God, I would have written: al-Shaikh wa al-Shaikha farjumuhumä

al-battata - for we recited it. "

The wording "the Prophet stoned" manifests that the stoning

was a sunna, but the wording "we recited it" clearly suggests that

CUmar the notion that the stoning

was made to confirm penalty was

Qur'änic. Further, the fear of the people who might say: 'We do

not find two penalties in the Book of God, ' reflects the dispute between

the scholars who held that stoning was a Qur'änic hukm and those who

maintained that the penalty for fornication was only flogging (Q. 24.2).

Zirr b. Hubaish(33) said: 'Ubayy b. Kacb, the Qur'änic

scholar, asked me, 'How many verses do you count or recite in the

Surat al-Ahzäb (Q. 33)? ' I said, 'seventy-three. ' Ubayy replied,

Is that all. I have seen it when it was equal (in length) to Surat al-

Bagara and it contained the verse: t Y,ý II ä3. ýý11

., wwJl

This version is a clear imitation of the Qur'änic style. The

phrase "a JI J L<." is borrowed from the wording of Q. 5,38. It

t: 04

was perhaps designed to counter the claims of those who argued that

the verse originally had been revealed in the Torah.

 -158-

(34)
Kathir b. Salt reported that they would copy the mushaf

in the company of Zaid b. Thabit and when they came to this verse,

Zaid said: I heard the Prophet say: i by--*ýý n.ý. ^j I JI

,.;

A i9ýIaJ
9d III ý. `ýl4;
.J

According to the other version of this report Zaid said: "We

used to recite 'al-Shaikh wa al-Shaikha idha Zanayä f-arjumuhumä al-

battata. ' Marwän asked Zaid: "Shall we not record it in the mushaf? "

Zaid replied: "Do not you see that the youth, if married, would be

" cUmar "I shall this " We asked

stoned. added, solve problem.

him, "How, " and he replied: "I shall go to the Prophet and speak

about different things and when he mentions 'stoning', I shall say:

'Oh Prophet, let me write the stoning ' " °Umar did this, but
verse.

the Prophet replied: "I cannot let you write it. "

This report clearly favours the doctrine of naskh al-tiläwa duna

al-hukm. This and the rest of the versions were clearly designed to

show that stoning was a Qur'anic regulation. The Torah source theory

emerged when scholars were making their tafsir of Q. 5,41-44 and, in

reaction to this', as we have seen, emerged the Qur'an-source theory.

It is possible to hold that the stoning penalty originated in the tafsir

of early scholars, the origin of which was obscure, and that it

originated indirectly in the Qur'än. Let us see how the usulis document

it.

jassäs' discussion of the penalty.

According to Jassäs, the 'stoning penalty' for adultery emanated

 -159-

from the sunna of the Prophet. It was by no means based on the

(35)
ruling of the Torah. He argued: "The Prophet's stoning of the

Jews was either based on the Torah ruling or it was based on the

Prophet's own judgement. If it was based on the Torah ruling, it

became the sunna of the Prophet, because what remained from the

previous Sharica's of the Prophets by Muhammad's time, should be

considered as the sunna of the Prophet, unless the rulings were

abrogated. If the ruling was based on the Prophet's judgement, then

it is confirmed that it was the Prophet's own practice, because nothing

has come to abrogate it. The sound view, however, according to us,

is that the ruling emanated from the Prophet, and was not a practice

originating from the Torah ruling. The proof of this view is that the

first penalty for adultery in Islam was introduced by God in Q. 4,15-16.

This indicated that the stoning penalty introduced by God in the Torah

was abrogated. "

CUmar's
jassäs' second argument was based on haadith in which

he was believed to have said: 'I fear that with the passage of time some

will say: "We do not find the 'stoning penalty' in the Book of God, and

will thus go astray by abandoning an obligation of God which He has

revealed. " For we recited: al-Shaikh wa al-Shaikha f-arjumuhuma

al-battata. " The Prophet stoned and we have stoned after him. '

This haTdith serves two purposes. Firstly, the penalty was based

on the sunna. Secondly, the flogging, in addition to the stoning, was

not obligatory for the mubsan. Had it been obligatory, argued jassäs,

CUmar have mentioned it.

would
 -160-

jassäs, a scholar one and a half centuries later than

Shafici, vehemently objected to the 'ayat al-Rajm' considered as part

of the Qur'än. This reveals that the theory naskh al-tilawa duna al-

hukm concerning the stoning verse had become widespread by jasss'

CUbäda (36)
time. The hadith, according to Jassäs, was a starting

point for the 'stoning penalty. ' Therefore, it was not based on the

Qur'anic verse whose tt1awa was thought to have been withdrawn. He

(37)
argued: "cUmar's hadith concerning 'ayat al-Rajm' was Khabar al-

wähid and a Qur'änic wording could not be established by Khabar al-

wahid. " Further, the verse in question has two possible meanings:

a) It was part of the Qur'än. b) It was not part of the Qur'an. If it

were part of the Qur'an, its wording and ruling were both abrogated in

the lifetime of the Prophet. Moreover, it was either aya of the Qur'an

or it was a ruling of the Qur'an. Aya can be applied to anything; it is

not used only of the Qur'änic verse. God said: "And of his signs

(äyät) is the creation of the Heavens and the Earth" (Q. 30,32); God

"In these things (äyät)" (Q. 13,3). cUmar

also said: there are signs

mentioned the 'äyat al-Raj ', but he meant: 'What God had revealed

to His Prophet through the wahy. ' The original report, in which It was

said that God revealed it, was misunderstood by the narrators. Some

of the narrators understood just the superficial meaning without

comprehending the wording. Some of them understood that it was

part of the Qur'an and, therefore, they interpreted it like that.

Someone questioned: If the 'stoning verse' was not part of

CUmar to write it down in the mushaf.
the Qur'an why was prepared
 -161-

How was it possible to write in the muusshaf something that was not

part of it?

(3 8ý ° Umar
jassäs answered: might have thought of writing

it on the margin of the mushaf. Moreover, it is clear that the verse

was not part of the Qur'an because it did not reach us as the rest of

CUmar 'Verily,
the Qur'an reached us. " Further, said: the Rajm is

in the Book of God, for we have recited it and remembered it. ' It is

cUmar
possible that meant that it was prescribed upon the people by

God. If it were so, it indicated that he did not mean that it was in

the Qur'an and its tiläwa was withdrawn. He further said: 'Were

cUmar have written

the Rajm considered a verse of the Qur'an, would

blamed him or otherwise. In addition cUmar's

it, whether people to that,

wording: "that the Rajm is what God revealed and people will come who,

not finding it in the Qur'an, will reject it, " suggests that it was not

part of the Qur'an. (Because what God has revealed includes both the

Qur'an and the wah As God Himself has said: "He (the Prophet)
.

does not speak from his own accord but from what is revealed to him"

(Q. 53,3-4).

Finally, the wording: "People will come and reject the stoning

" cUmar's It was the wording

penalty, was not own wording. of the

Prophet, because the knowledge of its rejection was not known except

by way of wahy (and wäß used to descend upon the Prophet). It is

cUmar to publicize
said that merely wanted the penalty and make it

known so that his report would be widespread. He did not mean to

say that the verse in question was part of the Qur'an, since he had
 -162-

directly heard from the Prophet who said: "People will come and

reject the stoning penalty. "

All the above mentioned arguments of jassäs reveal that he

wanted to keep the origin of 'stoning penalty' in the sunna. It is

obvious that scholars, like jassas, who argue that the sunna can

abrogate the Qur'än and vice versa, do not need to rely on the 'stoning

verse. '

According to jassäs and the majority of exegetes the first

Qur'änic provision in relation to the punishment for fornication was

(39) (40)
introduced in Q. 4,15-16. He maintains if both the verses

(15 and 16) are taken together, they indicate that the penalty for a

woman was habs and adhä until she dies a natural death (provided she

was included in v. 16). The penalty for a man was insulting and

striking. The second possibility was that the habs was prescribed

for a woman who fornicated, then, in this punishment, adhä was added.

If it were so, the penalty of habs was abrogated by adhä because an

addition to a previous ruling is termed naskh. In other words habs had

been the complete hadd; when adhä was added to this, it became part

of the hadd. This implies that the confining of the woman to the house

was abrogated. The final possibility was that adhä was the penalty

for both women and men. Later, habs was added for a woman until

she died a natural death or God appointed a way out for her. According

to this interpretation habs abrogated adhä. Jassas stated that all

these interpretations were possible. These interpretations suggest

that jassäs was engaged in tafslr of the verses and was not sure what
 -163-

the penalty was from the outset.

Scholars differed in their views on the question of abrogation

of these verses (Q. 4,15-16). Some said the verses were abrogated

Others held that the verses by the CUbäda

by Q. 24,2. were abrogated

hadith: "The Prophet said: Take it from me (repeated twice) God

had appointed for them (women) a punishment; the virgin with the

virgin are liable to one hundred strokes and banishment for one year,

and the non-virgin with the non-virgin should be punished with one
(41)
hundred strokes and stoning. ,

jassäs accepts the second argument, because the wording

indicated that this was the explanation of Sabil

mentioned in v. 15. According to him, there was no ruling involved

Q. 4,15-16 cUbada ha dith, Q. 24,2 had not yet

between and the since

been revealed. This was a clear case of the Qur'an's abrogation by

(42) CUbäda
the sunna. However, it should be noted that the hadith,
.

according to jassäs, abrogated only the penalty concerning the non-

virgins. The penalty regarding the virgins was directly abrogated by

(43)
Q. 24,2. We have pointed out earlierý44ý that jassäs knew that

the combination of Nabs, adhä and jald was perfectly all right. Yet,

he argued that it would be an addition to the previous ruling, which if

accepted would be termed naskh. Therefore, he preferred to abrogate

Q. 4,16 by Q. 24,2, because, the penalty for a virgin offender, according

He had to abrogate Q. 4,15 by the cUbäda

to him, was only flogging.

hadith, because he had no difficulty in arguing that the Qur'än could

be abrogated by the sunna. Howbeit, it is of the highest interest to

 -164-

note that his discussion on the abrogation of the Qur'an by the

in order to justify cUbada ham

dith
sunna, was maintained that the

abrogated the Qur'an (4,15). If he had accepted on the contrary

cUbada hadtth than Q. 24,2,
the view that the was later then there

was no convincing argument for Jassas that the sunna could abrogate

the Qur'an.

In order to refute jassäs' idea, some of his opponents suggested

00 *
that habs and adhä were the penalties concerning virgins and were

abrogated by the flogging of Q. 24,2. As far as the non-virgins were

concerned, Rajni was prescribed as a penalty at the outset.

(45)
jassäs answered that this interpretation of Q. 4,15-16 had

not been asserted by any of his predecessors. Whoever interpreted

the verse, maintained that Q. 4 prescribed a penalty for both muhsan

and non-muhsan. Had they known that it was prescribed for only one

of these two categories, they would have reported it. It was

inconceivable that they knew that the penalty was for one of the two

categories, but they had applied it to both of them. Further, in the

cUbäda ha dith, the Prophet had combined the two groups when he said:

"virgin with virgin one hundred strokes and a year's banishment; non-

virgin with non-virgin, one hundred strokes and stoning. "

Razi(46) informs us that Jassäs had a strong wish to attack

Shäfici. Therefore, he accepted the view that vv. 15-16 were abrogated

by the CUbada hadith, that "were the äyat

arguing al-Jald revealed before

cUbada hadith,
the there would not have been. any sense in the Prophet's

wording: " LoPPý9 . ". Thus, he proved that the Qur'an and the sunna
 -165-

could abrogate each other, contrary to Shäfici who had held that

neither of those could abrogate each other. " Razi, after quoting

the above statement refuted jassäs' idea, maintaining that "the Sabil

mentioned in v. 15 indicated a time-limit, until God appointed a way

out for them. " Further, the Sabil was general. Later, the Prophet

it. Hence, the cUbäda hadith Q. 4,15 and did

explained explained

not abrogate it. With reference to Jassas he further argued: "You

that it was not possible to argue that the äyat al-Jald

established
CUbada ha:dith.
preceded the Why would you not say that when Q. 24,2

the Prophet mentioned his wording: 13 "? To

was revealed,

Q. 24,2 and the cUbäda hadith

this effect, were introduced respectively

and this nullified your claim that the hadith preceded Q. 24,2. "

Sarakhsiý47) stated: "Whoever mentioned that habs and adhä

by the CUbada hadith did not hold strong It

were abrogated views.
cUmar,
was confirmed that according to the 'stoning verse' was recited

in the Qur'än. This was a case of the Qur'än's abrogation by the

Qur'an. Furthermore, the Sabü mentioned in Q. 4,15 prescribed a

time-limit and its ruling was general. Later, the Prophet explained

the meaning of Sabil. There is no disagreement among the scholars,

that the general intention of the Qur'än can be clarified by the sunna. "

(48)
jassäs in answer to those who maintained that the Prophet

had explained the Sabil and that it indicated a time-limit, had already

argued that, "the Sabil did not show a time-limit, since it was possible

to argue that God would not appoint a way out for them (women); Nabs

and adhä would always be exercised as penalties. The mention of a

 -166-

Sabil was a confirmation of the view that the ruling would remain

until it was abrogated. However, if that view is accepted, that

Sabil was for a time-limit, our view is still valid, because the Sabil

was related specifically to women. It was not related to men, because

their punishment was adhä until they repented. The penalty of

Q. 4,15-16 was abrogated by the stoning of the non-virgins and by the

flogging of virgins. jassäs made it clear that 'stoning' abrogated the

verse (15). It was a confirmed instance of the Qur'än's abrogation

by the sunna. 11

The 'Ubäda hadith informs us of two classes of offenders and

prescribes two different penalties. In the case of the virgins, the

penalty was flogging and banishment for one year. In the case of the

non-virgins the penalty was one hundred strokes and stoning to death.

In the former case, banishment was abandoned and in the latter case

flogging was dropped. These procedures were developed by the

(49)
Hanafis. This can be summarised in jassäs' words: The flogging

(mentioned in Q. 24,2) is a complete hadd. If banishment is added to

this, the flogging becomes part of the hadd and this leads to the

abrogation of the verse (Q. 24,2). Had banishment been part of jald,

the Prophet would have mentioned it when he recited Q. 24,2 so that

the companions would have understood that the banishment was a part

of the Jald. Moreover, banishment came down to us by Khabr al-wähid,

therefore, it could not be considered a hadd.

This argument goes against jassas, because the banishment,

cUbäda
as he says, was introduced for the first time in the hadith and
 -167-

by this hadith he held that Q. 4,15 was abrogated. If this hadith

came down as Khabr al-wähid why did he abrogate the Qur'an by it,
(50)
while according to him Khabr al-wähid .
could not abrogate the Qur'an.

jassäs did not consider banishment as a hadd, because he wanted to

refute the idea of certain scholars who endorsed this penalty together

with flogging. In order to make his argument compelling he had to

(51) cUbäda
admit, at this point, that Q. 24,2 abrogated the hadith

concerning the virgins, because banishment was mentioned in this

hadfth. Thus, we find a two-sided argument. Firstly, Q. 4,16 was

directly abrogated by Q. 24,2. Secondly, Q. 4,16 was abrogated by

cUbäda
the hadith and then by Q. 24,2.

Concerning non-virgins, jassäs argued that flogging (mentioned

cUbäda
in the hadith and Q. 24,2) was no longer applicable, because

cAsif hadith(52) did not contain it. The Prophet ordered Unais
the to

proceed against a woman who had committed adultery and in the event

that she confessed, stone her. The Prophet did not say flog her. Had

the flogging been applicable, he would have mentioned it. The same
(53)
was true in the story of Ma iz. When he confessed his crime the

Prophet ordered that he should be stoned. On the basis of the above

discussion, the chronological order for the penalty, according to jassäs

be read: Q. 4,15-16, CUbada hadith, Q. 24,2, CAsif hadfth

could and

Mäciz dith.
haT In order to abrogate the contents CUbäda hadith
of the
cAsif hadith, he clearly
by the corresponds with the views of Shäfici.

ShafiCi's discussion of the penalty.

"God revealed Q. 4,15-16, and later abrogated both habs and

 -168-

adha mentioned in the verses, by Q. 24,2. The sunna indicated

that flogging with one hundred strokes was confirmed in respect of

free virgins, but abrogated in respect of non-virgins. It also

indicated that stoning was endorsed for the free non-virgins. The

Prophet's wording: "take it from me, God has appointed for them a

way out ... " indicated the first penalty to be revealed and by it

were abrogated hTabs and adhä from the fornicators. When the Prophet

stoned Mäoiz and did not flog him, and also when he ordered Unais to

go to the wife of al-Aslami and in the event that she confessed to

stone her, he indicated the abrogation of flogging concerning free

non-virgins. The Book of God and the sunna of the Prophet displayed

that the slaves were excluded from these provisions. God said

regarding the slaves: 'And when they come. under ihsän, and commit

abomination, their penalty shall be half that for the muhsan women

(Q. 4,25). ' This can refer only to flogging, since it alone is divisible

while 'stoning' which is a capital punishment is indivisible. The

Prophet said: 'If one of your slave-girls fornicates and her fornication

is confirmed, flog her. ' The Prophet did not say: 'stone her. ' The
(54)
Muslims are unanimous that a slave-girl should not be stoned. "

From the above discussion of Shaf1%, it was possible to argue

(the cUbäda ham h), in this

that for him, the sunna particular case has

abrogated the Qur'an (4,15-16). This conclusion is obvious from his

c Ubada hadith just Q. 4,15-16.

reasoning as he places the after But,

°Ubäda hadith
this interpretation of the was not intended by Shäfi°i,

since his main argument was that the sunna never abrogated the Qur'än.
 -169-

In order to escape from the problems which definitely would have

arisen from his discussion he relied on his theory of takhsis and

ßän, The theory of taxis was justified by declaring that some

%

verses of the Qur'an were general in their intent. They were

particularised either by another Qur'anic text or by the sunna of the

Prophet. The function of takhssis, in fact, was to harmonise the two

conflicting sources, and in this particular case to exclude slave-girls

from the general injunction of Q. 24,2, and narrow the application of

the verse to free offenders. The theory of Bayän was vindicated by

declaring some verses of the Qur'an ambiguous. They were either

clarified by the Qur'an or more often by the sunna. Thus, the function

of the sunna was to clarify the Quranic statements as to their real

intent. In the matter of fornication, when the Prophet stoned non-

virgins, without flogging them, the sunna and Q. 4,25 showed that by

Q. 24,2, only free virgins were intended. Shafici put a lot of weight

on the recognition of the sunna. He declared it as a revealed source

of law. When men accepted the decision of the Prophet, they accepted

it as if it emanated from God, because God had informed them that

(55)
Muhammad's order was His order. Shäfici argued that numerous

verses of the Qur'än showed the religious imposition of the sunna of

(56)
the Prophet. The function of the sunna was twofold. Firstly, to

follow what was intended by God, i. e. tafsir-hadith and secondly,

harmony: to elucidate where the Qur'änic texts were general. Thus,

the sunna also provided takhsis of the general Qurlanic statements.

The function of the sunna - it clarifies the Qurlanic injunctions - was

 -170-

adopted by Shäfici in order to save it from rejection because it

appeared to contradict the Qur'an. According to him any conflict

between the Qur'an and the sunna is not real but apparent. Use of

the principle of naskh, therefore, was inevitable for resolving the

conflict between the sources but it has to be modified to suit his

theory of takhsts. He stressed the point that naskh operated internally

i. e. the sunna abrogated the sunna; the Qur'an abrogated the Qur'an.

Shäfici's main concern, however, was with the abrogation of the sunna

by the sunna alone, because he wanted to preserve it from rejection if

it conflicted with the Qur'an. In order to achieve this purpose he had

to maintain the parallel theory that the Qur'an abrogated the Qur'an.

If he accepted the view that the sunna might abrogate the Quran, it

would certainly allow his opponents to argue that the Qur'an could

abrogate the sunna. By his special theory of naskh and Bayan which

he calls takhs is, Shafici documents the stoning penalty.

The penalty at the outset of Islam, according to him, was

Q, 4,15-16. In answer to a suggestion that the penalty for adultery in

the Qur'an was something else and was later alleviated by Q. 4,15-16,

CUbäda hadith indicates

he remarks that the that the provisions of Q.
(57)
4,15-16 were the first Qur'änic wording about zinc. He further

applies this penalty only to Muslims because the wording

(58)
meant Muslim women.

Shaft i's teacher, Malik, had found no difficulty in documenting

the stoning penalty. He had offered three possible origins of the

penalty. He had not preferred one to the others. These three origins
 -171-

(as mentioned CUmar's

were the Torah in ibn hadith), the Qur'an

(as mentioned in CUmar's hadith) (as mentioned

and the sunna in the

CAsif hadith). Malik's aim was to put his finger on the material

which was scattered here and there, during his time, concerning the

stoning penalty. He was not concerned with any theory or method

and was not concerned with any systematization of the sources',

while Shäfici had to confront this issue because he saw himself as

the champion of the sunna and thus he had to ensure that it did not

and could not appear to contradict the Qur'an. He was, however,

confronted with a serious difficulty: whether in this case the sunna

(CUbada ham
dith) abrogated the Qur'än, as he was sure that the verses

(Q. 4,15-16) had been abrogated.

Before we plunge further into Shafi' Ps arguments, it is

interesting to note that the word fähisha mentioned in v. 15, according

to some, does not necessarily refer to fornication. Abu Muslim al-

9)
Isfahanr argued that the verses do not speak about heterosexual

misdemeanours. V. 15, he says, refers to women exclusively and the

punishment embodied in it is for lesbianism and not for fornication.

V. 16 refers to men exclusively and the punishment embodied in it is

for homosexuality. According to him only Q. 24,2 concerns fornication

and it has no connection with the provisions of Q. 4,15-16. Baidäwi(60)

records some views according to which it was possible to argue that

vv. 15-16 refer to fornication but the punishment mentioned in these

verses could be combined with the flogging of Q. 24,2 and with the

stoning and banishment prescribed by the sunna. According to this

 -172-

view, there is no contradiction between the verses and, therefore,

the question of naskh does not arise. We have seen that Jass

knew that the combination of these penalties was possible, yet he

ignored the fact, because the penalty for the unmarried, according

to him, was flogging alone.

The material utilized by Shafi% in his discussions on the

penalty for adultery, apart from Q. 4,15-16, Q. 24,2, Q. 4,25 and the

CAsif hadith includes the Mäciz story and the Prophet's stoning of two
(61) (62)
Jews. According to the Maciz story, it was held that Maciz

himself came to the Prophet and admitted that he had committed

adultery. The Prophet asked him if perhaps he had kissed the woman,

or just signalled with an eye or had simply looked at her. When the

Prophet was satisfied that Mäciz was muhsan and that he was not

drunk, the Prophet commanded Maciz to be stoned. Let us examine

how Shafici tackles the problem in question.

He says: "God imposed habs and adhä as punishment for

(63)
fornication in Q. 4,15-16, until lie revealed Q. 24,2 and Q. 4,25.

By means of these two verses habs and adhä were abrogated and

penalties were confirmed. It was possible that the words of God in

surat al-Nur referred to all fornicators or to some, but not to others.

We sought an indication in the sunna as to who was intended. We

find in the hadith the Prophet's words: 'God has appointed the Sabil

for them. ' The words 'God has appointed ' themselves indicate
...

that this was the first penalty appointed for fornicators, since God said:

'or until God appoint a procedure for them. ' God's words concerning
 -173-

slave-girls (in Q. 4,25) indicate the distinction between the penalty

for free persons and that for slaves. The half penalty for slave-

girls can refer only to flogging, because it contains a divisible

number. It cannot refer to stoning because stoning has no end but

death. " "The Prophet stoned Maciz and did not flog him; he stoned

the wife of al-Aslami and did not flog her. Thus, the sunna indicated

that the flogging of free non-virgins (mentioned both in Q. 24,2 and

°Ubäda The °Asif hadith

the hadith) was abrogated. and the hadith

by ibn cUmar the two Jews (that the Prophet had

reported concerning

stoned) indicated that 'stoning' was endorsed for non-virgins and that

the flogging with one hundred strokes and banishment for a year was

endorsed for virgins. "ý64)

From the above mentioned statement of Shäf1%, a very serious

cUbäda
question arises as to which of Q. 24,2 and the haadith should be

placed after Q. 4,15-16. ShaficPs argument is two-sided. Firstly,

he argued that Q. 4,15 was abrogated by Q. 24,2 which stipulated

(65)
flogging. This argument he desired to establish, since his main

contention was that the Qur'an could be abrogated only by the Qur'an.

He also argued that Q. 4,25 excludes slave-girls from the general

application of Q. 24,2. To this effect the former verse is later than

Q. 24,2 and its role is particularization. The second argument of

CUbada haadith
Shafioi is that the was the first to be revealed after

Q, 4,15-16. He derived this conclusion from the Prophet's wording:

(66)
which according to him, indicated that

this was the first penalty by which the fornicators were punished, and
 -174-

was the direct answer to v. 15's wording: $ 0. *J &UI

cUbäda hadith
He stresses the point that the was the first to be

revealed and by it habs and adhä were abrogated. He further claims

that flogging in respect of non-virgins was withdrawn by the Prophet's

Maciz, CAsif.
decision concerning and in the story of the Therefore,

these two were later than Q. 24,2. Thus, the chronological

arrangement of the material applied by ShäfiCi for the penalty for

°Ubäda
adultery might be read: Q. 4,15-16, the hadith, Q. 24,2, Q. 4,25

CAsif, by jassäs.
Mäciz and the same order as that proposed

As we know that Shafici does not allow the Qur'än's abrogation

by the sunna, CUbada hadith

what was the relationship of the to

Q. 4,15-16? Shafic1 could have said that the cUbäda hadith explained
CUbäda hadith
Q. 4, but he maintained that the .
penalties were the first

to come down after Q. 4 's habs and adhä and by these the provisions

of Q. 4 were abrogated (_" 1tJI CIO ýY1 ý (, J31 ).

15 4' ý., ý;
Thus, he clearly implies that in this particular case the sunna has
(67)
abrogated the Qur'än. To this extent he deserves Schacht's comments

"Shäfici's theory of repeal breaks down over the problem of punishments

for adultery and fornication. " ShäficPs argument that the sunna did

not abrogate the Qur'än, was taken more seriously by Jassas. We have
(68)
pointed out that jassas proved Shafici's inconsistency in his

arguments. Jassäs did not say clearly that on the problem of fornication,

Shafi°i had failed to uphold his argument but Jassäs' intention was

obvious. Shäfici could not maintain his argument against the abrogation
(69)
of the Qur'an by the sunna. jassäs pointed out that Shafici had
 -175-

Q. 4,15-16 by the °Ubäda haadith.

abrogated

cUbada
In spite of the fact that Shafici places the haadith

immediately after Q. 4,15-16, he argues dith

that the ham elucidates
(70)
Q. 24,2. To this extent, he says that Q. 24,2 abrogates Q. 4,15-16.

He further says that Q. 24,2 is general in its application and is

elucidated by Q. 4,25 which excludes slave-girls. In other words

takhsis has occurred. The verse of Q. 24, in this respect, is confirmed

to free The function cUbada hardith

as applying persons only. of the

is to distinguish two categories of fornicators (virgins and non-virgins)

and to appoint the penalties for each category. For virgins it appoints

one hundred strokes and banishment for a year; and for non-virgins it

stipulates one hundred strokes and death by stoning. Q. 24,2 mentions

flogging without restricting it to virgins or non-virgins. Therefore, the

question arises as to which category is intended by Q. 24,2. The

cUbada hadith does not help because it stipulates flogging for both

categories with the additional penalty of banishment for the virgins and

stoning for the non-virgins. To solve this problem, Shäfici has to

CAsif because
resort to the and Mäciz ahädith, in these ah dith flogging

for non-virgins was not carried out. Thus he concluded that by these

ahh.dith flogging was abrogated concerning non-virgins but stoning was

(71)
endorsed. In other words the function of these ahädith was to

supply takhsis or Bayan to Q. 24 because they excluded non-virgins from

the general implication of the verse.

Takhsiss is a kind of Bayan and its function is to indicate the

exclusion of certain categories which are not intended to be part of the

 -176-

original application of the verses. Shafici extends this method to

(72)
numerous verses of the Qur'an. For example, he argues that

the Qur'an stipulates shares in inheritance for parents, offspring and

spouses but the sunna excludes them if they do not fulfil certain
(73)
conditions. The Qur'an prescribes the making of a wasiyya but

the sunna indicates that it should not exceed more than one-third of

the estate nor be made in favour of heirs. Similarly, the Qur'an

enjoins that feet are to be washed during the wudii' but the sunna

indicates that in certain circumstances, wiping the boots suffices.

The Qur'an says that the hand of the thief should be amputated but the

sunna excludes those who steal goods whose value is less than a

quarter of a dinar. The Qur'an stipulates flogging, but the sunna

indicates that it was meant for certain categories of fornicators. It

should be noted that in this particular case the sunna (cAsif or Maciz)

does not exclude anything but rather adds the stoning penalty because

it is known that 'stoning' is not mentioned anywhere in the Qur'an.

Therefore, it is possible to argue that it is not an elucidation or

takhsis of flogging, but a clear innovation and an addition to the

Qur'anic flogging penalty. There is no doubt that takhsis is a useful

ploy of ShaficPs to defend the sunna from rejection if it contradicts the

Qur'an. However, it cannot be applied in the case of stoning, because

the function of takhsis is exclusion and specification, while the stoning

which it excludes is not mentioned in the Qur'an- This can be taken as

evidence of Shäfici's failure to maintain his theory of takhsis. This

conclusion can also be applied to all other instances where the sunna
 -177-

provides extra information on the problems where the Qurlan is

completely silent.

It is extremely interesting to note that ShäfiC being a pupil

,
does not rely on the report cUmar in which he had declared
of Malik, of

the 'stoning verse' as having been part of the Qur'än text. Shäfi%,
(74)
however, records this report in his late work, but does not pay it

more than passing attention. He neither comments on it nor does he

emphasise it. Malik had known this hadith and recorded it in the

Muwatta' showing that the hadith was in circulation in his time and

possibly before that. It is also possible that its circulation was part

of a counter-attack by the Sunnis on the Khawärij and Muctazila who

(75)
outrightly rejected it, arguing: We do not find it in the Qur'an. "

The 'stoning verse', however, does not coincide with the established

Figh doctrine adopted by the Sunnis, because the wording it quotes does

not necessarily refer to non-virgins. It rather refers to elderly people.

That was the reason, probably, that Malik had to gloss it as 'al-thayyib
(76)
wa al-thayyiba. ' The verse would not help, if the person who

committed adultery is not elderly but muubsan (the penalty established

in the Figh for him, is stoning). The verse would be applicable in a

case where an offender is elderly but virgin (the penalty established in

the Figh, for him, is flogging). The verses therefore, seem to support

a different doctrine according to which the penalty for an elderly person

(77)
is a combination of flogging and stoning. Shäfici, as a matter of

fact, had realised that reliance on the 'stoning verse' does not guarantee

the stoning penalty. Further, his non-reliance on this verse suggests

 -178-

that his takhis theory was sufficient to serve his purposes. It

does not matter that his defence was different from that of his

predecessors. We have seen that Shäfici has to defend the 'stoning'

on one hand, and to defend the sunna on the other hand. Dr. Burton
ýýsý
suggests: "Shafici failed to solve the problem of the source of

the stoning penalty, but he incidentally, by his skilful use of the

Qur'an texts, secured the position of the sunna, generally, as a

referent. "

We find a wording °Ubada hadith

of the which suggests that it

°Ubada (79)
might have been a revelation. said: 'Whenever a

Qur'anic verse was revealed to the Prophet, he became distressed and

his face coloured. One day a verse came upon him, and he reacted

that way, and when he recovered, he said: "Take it from me (repeated

twice), God has now appointed a means for them. " ' Shäfici never
°Ubada hadTth was Qur'änic,
said that the wording of the but he strongly
(80)
relied on this hadith and made full use of it. jassäs remarked:
cUbäda hadith
"The wording of the was not Qur'änic. How could it

be a Qur'an while the report suggested that it emanated from the Prophet.

Had it been a Qur'an, the Prophet would not have said: take it from me.

He would have said: Take it from God. " Both Shafioi and jassas had

cUbada hadith, because it did not only

to rely on the provide them with

the basis for stoning, but it also represented the established Figh

doctrine, since it distinguished the non-virgin from the virgin, and

provided an extra-Qur'änic penalty, i. e. banishment for twelve months

in the case of virgins. (Banishment was later rejected by Jassäs).

 -179-

More importantly, it provided the stoning penalty for non-virgins.

It should be noted, however, that the hadith itself is faulty in isnäd.

"
Shäfici finds himself in a difficult situation when he deals with the
(81)
isnäd, which in turn suggests that the hadith was unsound.

TabariX82, clearly refuses to adhere to it because according to him the

isnäd of the hadith is unacceptable. We have noticed that Shafici

had difficulty in dating the hadith. On the basis of his takhsTs theory,

cUbada hadith Q. 24,2, but the wording

the comes after of the har ith

shows him a way to place it after Q. 4. Consequently, he faces a

serious problem in determining its relationship to Q. 4. The obvious

is nothing other than the abrogation CUbäda haydith.

result of Q. 4 by the

This, however, cannot be the conclusion of Shäfici who always said

that the function of the sunna was taxis and Bayän to the Qurtän.

Although he uses the ambiguous word naskh which undermines his whole

discussion on the penalty for fornication, he still argues that takhsis

has taken place. This was merely a clever device in his efforts to

safeguard the sunna from rejection by means of references to the Qur'an.

cUbada hadTth before Q. 24,2 jeopardized Shafici's

To place the

treatment of the penalty, since it was possible to argue that the hadith

was abrogated by Q. 24,2, and the penalty for fornication was simply

flogging. We find some authorities who questioned the authenticity

(83)
of the 'stoning penalty. ' Sulaimän al-Shaibäni reported: "I asked

CAbd Allah b. Abi Aufä, 'Did the messenger of Allah use stoning? ' He

'Yes. ' Thereupon I asked: 'Before the revelation of sürat

answered:

or after that? ' He said: 'I do not know. ' " This report
al-Nur

k
 -180-

implies a possibility that the stoning embodied in the sunna was

abrogated by the flogging of Q. 24,2. This further shows that the

authorities (Sulaiman al-Shaibani and Abi Aufä) were not sure about

the validity of the 'stoning' and were uncertain about the reports

(including cUbada) that 'stoning' for

which conveyed was a penalty

cUbäda hadith: "Now God

fornication. Moreover, the wording of the

has appointed a procedure" suggests that it was a direct imitation of

Q. 4,15's wording: "Until God appoints a procedure for them. " The

"Take it from me" are a clear echo of Q. 59,7: "Whatsoever

words:

God grants as spoil from the people of the townships to His Prophet,

belongs to Allah (i. e. to be used for purposes allowed by God), the

Messenger, the next of kin, the orphans, the needy and the wayfarer;

so that it will not make a circuit between the wealthy among you.

Whatever the Messenger gives you, take it; what he denies you,

cease demanding. " The verse clearly concerns the distribution of

booty gained from a defeated army. The last part of the verse was

cleverly taken by Shafic1 particularly, and by the ahl al-hadith generally,

in order to prove that the Qur'an obliges us to accept the authenticity

(84) cUbäda
of the sunna of the Prophet. The contents of the hadith

further suggest that it was designed to bring together all the elements

established in practice relating to fornication. For instance, it

to Q. 4's wording ' 'when it says: all) J, a"s

referred .,yJ .
- ,

_It also covers the flogging of Q. 24,2 and the extra-

Qur'anic penalties of banishment and 'stoning. ' It is obvious that the

hadith was designed to serve as a bridge between the Qur'änic verses

 -181-

(24,2 and 4,15-16) and between Q. 24,2 and the penalties established

in the Figh. It can confidently be concluded that the hadith was not

Sah ih was propounded by the ahl al-hadith who wanted to prove

that the origin of the 'stoning penalty' was in Islam, i. e. the sunna -

since all admit it was never in the Qur'an.

As it was possible to argue that the hadith was abrogated by

the subsequent revelation of Q. 24, a way was found to maintain the

'stoning ' To this CAsif

penalty. effect, the Mäciz and stories seem

(besides both Q. 4,15 and CUbada

to have been invented refer only to

women). These stories clearly demonstrate the confirmation of the

'stoning' in the cUbada hadith,

originally created which was no longer

secure in the face of Q. 24,2. The function of these ahädith was to

abrogate the flogging imposed upon non-virgins mentioned in the

cUbäda ha dith, because the Prophet was now believed to have stoned

non-virgins without flogging them. The function of the MäOiz hadith

the penalty to male non-virgins, CUbäda ha*rditth

was to extend since the

and Q. 4,15 were limited to females, as is indicated by the word

' -j__._ 1J'. The CAsif hadith CUbäda

restores the stoning for female

cUbäda's
non-virgins, on the one hand, and it endorses one hundred

strokes and a year's banishment for virgins, on the other hand. It also

extends the penalty to male-virgin fornicators because the man's son is

(85) °Asif
presumed to have been a virgin. The hadith clearly

corresponds with the majority's settled doctrine: stoning is prescribed

for non-virgins; flogging is imposed upon virgins. But their banishment

(86)
is disputed. The Hijazis accept it; the Iraqis reject it. A

minority was inclined to apply the dual penalty - stoning and flogging -
 -182-

Their authority CA11

to non-virgin offenders. seems to be who is

believed to have said: "I flogged her on the basis of the Book of

God and stoned her on the basis of the sunna. "(87 This hadith

represents an attempt to combine all the sources. It was argued that

cAsif
the omission of flogging from the hadith does not mean that the

flogging was not applicable. Its omission might mean that it was
(88)
already in vogue, therefore, there was no need to mention it. The

cUbada hadith
argument perhaps referred to the which contains both

the flogging and stoning penalties for non-virgin fornicators. In order

the stoning, it was also argued that the cUbada hadith

to confirm was
c
sunna gawliyya while the Asif hadith was sunna fi°liyya. According

interpretation, CUbäda hadith does not provide

to this the evidence of

whether the Prophet stoned and flogged or flogged and banished for a

year, but merely tells that these are the penalties. In contrast the

oAsif hadith this The CUbäda hadith did not

actually applies penalty.

coincide with the established Figh doctrine, since it prescribed flogging

and 'stoning' in the case of non-virgins, whereas the Figh enjoined only

'stoning' upon them. Therefore, it has to be abrogated by the hadith

which could fulfil the conditions of the Figh. That demand was met by

cAsif
the invention of the Maciz and ahädith.

jassäs and Shäfi% s discussion on the whole problem in question

can be summarised: the habs, adhä and jald were Qur'änic; the

flogging penalty had been abrogated for certain classes of offenders;

the non-virgins were liable to 'stoning' and no Muslim should base his

judgement on the foundation of the Torah. ShäficPs problem was an

 -183-

inability to admit that the sunna could abrogate the Qurlan. To

bolster this view he had appealed to Q. 2,106 which according to

him indicated that only the Qur'an could abrogate the Quran. The

sunna was defended by Shafici who argued that God had obliged us

to accept Muhammad's right to rule. The contradiction between the

Qur'an and the sunna was shown to be illusory by Shäfici, because

the function of the sunna was merely Bayan to the Qur'an. This

function of the sunna was allegedly based upon some texts of the

Qur'an. We have seen the inapplicability of Shafici's Bayan - takhs is

theory in the problem of the 'stoning penalty. ' Those who had

accepted Shafici's theory that the sunna could not abrogate the Qur'an

and vice versa, were now frustrated and had no recourse but to argue

that the 'stoning' must originally have been part of the Qur'än. The

fact that the 'stoning' is not traced in the Qur'än was justified by

introducing a chapter in the collection of the Qur'än stating that the

Qur'an was not collected by the Prophet. Had the Prophet collected

the Qur'an, he would not have omitted the verse. This collection must

be seen as the work of the companions who allowed its omission from
(89)
the mushaf.

The Hanafts had argued that the sunna could abrogate the

Qur'an. We have seen jassas that the CUbäda hadith

saying has

abrogated the Qur'an. Therefore, he did not need to rely on the

'stoning verse, ' which was considered part of the Qur'an. He rejected

any possibility that the 'stoning' once figured in the Qur'än. In the

same vein, were the arguments of the Malikis. Finding conflict

 -184-

between the penalties, they argued that the Qur'än's flogging has

abrogated the habs and adha, this being a case of the Qur'an's

abrogation by the Qur'an. The sunna has abrogated the flogging of

(90)
Q. 24,2, this being a case of the Qur'än's abrogation by the sunna.

ShäficPs followers could not accept these views, since the sunna was

not capable of tampering with the Qur'an; and it could not be relied

on as the source of the stoning. They have also to respond to the

objections of those Muslim scholars who had held that the 'stoning'

was not found in the Qur'an. On this basis, they argued that the

'stoning penalty' must have originated in the Qur'än. The fact that

the 'stoning verse' is not mentioned in the Qur'an does not nullify their

claims, because its wording had already been in circulation before

Malik's time. Otherwise Malik would not have recorded it in his

Muwatta'. It had been part of the Quran, they argue, when the Qur'an

was at the oral stage. It was preserved in the community memory and

its ruling is still valid. They adopt this attitude in relying on the

theory of naskh al-tiiäwa duna al-hukm. The enthusiasm to adopt this

rule was derived from Shäfici who had shown positive response to the

legitimacy of this principle of abrogation, not on the question of the

(91)
stoning penalty but on the problem of Ridäc.
.
According to Shäfici,

five sucklings constitute a bar to marriage. This doctrine, he derives

cA'isha he asserts
from the wordings which were a Qur'änic enactment,

whose tilawa was withdrawn, but whose ruling is still applicable. It

is very interesting to note that he does not adopt the same attitude to

the 'stoning verse' in his work. The reason is that he relies on his
 -185-

theory of ta khsfs which affects people. He does not apply naskh

(92)
which affects time. Shafici, therefore, fails to document the

'stoning penalty', because, if stoning has replaced flogging, it is

naskh. If stoning is additional to flogging, it is still naskh, because

according to some, an addition to a previous text is naskh. In view of

Shafici's unsuccessful use of this theory of takhsis, his followers

took the 'stoning verse' as a weapon against fellow sunnis and against

the ahl al-Kalam who had rejected it. The verse which was originally

invented in order to counter the views of those who had held that this

was recorded in the Torah, was now used as an argument in the

methodological squabbles between the ahi al-sunna. This quarrel

led the scholars, not to enforce the 'stoning' as a penalty but to

document it. The assumption made by ShäficPs followers that it was

an instance of naskh al-tilawa duna al-hukm was merely an extension

of Shafici's treatment of the problem of Rdac. It can confidently be

said that Shäfici was the originator of this mode of naskh. Since its

legitimacy was accepted by Shafici, it led jassäs to argue that

mutatäbi9at was also a case of naskh al-tiläwa düng al-hukm. Hence

he argued that fasting in expiation of breach of an oath should be three

consecutive days. That the 'stoning' originated in Islam - either in

the sunna or in the Qur'an - was the view of the majority of the scholars.

Those who argued that the sunna could abrogate the Qur'än referred it

to the sunna. Those who held the contrary view tended to argue that

the basis of the 'stoning penalty' was the Qur'än whose tilawa was

withdrawn. The former view can be ascribed to Tabari, Nahhäs, ibn

 -186-

al-cArabi, jassas, Baidawi and many others. The latter view can

confidently be ascribed to ShaficPs followers.

One thing common to the doctrines accepted by the scholars

is that the 'stoning' is the penalty for certain offenders, and that the

stoning is nowhere mentioned in the Qur'an. It is equally interesting

to note that banishment is not mentioned in the Qur'an, but it is not

accepted unanimously. This disagreement in turn suggests that both

the 'stoning' and banishment were taken into consideration at different

stages of development in the discussions as to the sources of the

penalties. Banishment may have been accepted originally by the

Hijazis. Stoning may have been accepted unanimously by the ancient

scholars The objections that the stoning is not mentioned in the

.

Qur'an were, as a matter of fact, raised later in the history of Islamic

law. They were raised possibly when it was settled that the Qurän

should be taken as a criterion to judge every case of law. It is also

possible to suggest that when the Qur'an was established as arbitrator

in every case of law, the meaning of the expression 'Kitab Allah' was

not yet fixed. That is why we find parallel references on this question

to the Torah and to the Qur'an (or to the sunna as imposition I__:; ).
%.,

We have already pointed out that the 'stoning penalty' is not

mentioned in the Qur'an.. The scholars could easily have referred it

to the sunna. But in order to explain its absence from the present

mushaf, they have to document it, on the one hand, and they have to

trace its origin, on the other hand. We find jassäs and Shäfici arguing

that although it was mentioned in the Torah, it was the Prophet's

 -187-

legislation. To trace the origin of this penalty, the arguments were

referred to the ambiguous expression the 'Book of God. ' Some

argued that it referred to the Pentateuch and others held that it

referred to the Qur'an. The wording of Malik's hadith in which the

Prophet was alleged to have said: "I shall judge between you according

to the Book of God" and the Jew's story presented in another hardith

showing that the Prophet had stoned, encourages one to assume that

a dispute had occurred between the scholars regarding both the origin

of the penalty and its association with the Prophet. The dispute as

to the basis on which Muhammad had rendered his judgement was to

be solved by declaring that Muhammad, as a Prophet, had judged

To this the cAsif hadith

according to a revealed source. extent was

distinguished from that of the Jews. The Jews stories represent the
(93)
tafsir of Q. 5,41-49. The stories found on the tafstr of Q. 5,41-49

later became ha diths and were eventually transmuted into Sharica

These ahädith by both Shäfii c

materials. were accepted and jassäs.

The former under the influence of his sunna doctrine, was content that

since the Prophet had stoned, stoning was the sunna. In the same

vein, was the argument of jasss, but he held also that the sunna had

abrogated the Qur'an. Nonetheless, some technical arguments have to

be advanced. It was argued that the Prophet had stoned on the basis

of a revealed source. This idea helped some ahädtth 0

to emerge which

described the Prophet as having stoned the Muslims. The fact that the

'stoning penalty' is not traced in the Torah suggested, according to

some, that the Jews had concealed it. (Malik's version clearly
 -188-

(94)
represents this view. ) Further, seeking justification from the

Jewish literature was opposed by some scholars who argued that the

Jews had distorted their works. In the light of this approach one can

judge that Islam was not seen as a continuation of Judaism but as a

new revelation which abrogated Judaism. Therefore, it was strongly

held that the Prophet had not stoned the Jews on the basis of the

revealed Torah, but on the basis of Muhammadan law which had

abrogated the provisions of Q. 4,15. It can clearly be seen that the

present mushaf does not contain the 'stoning verse', it is, therefore,

declared to be a clear instance of naskh al-tiläwa dung al-hukm.

 -189-

CHAPTER SEVEN

THE ABROGATION OF BOTH THE RULING AND THE WORDING

Neither ShafiCi nor jassäs emphasises this mode of naskh.

Shäfici simply does not refer to this mode of naskh, as is obvious

throughout his discussions on the subject of naskh. However, jassäs(l)

mentions this mode of naskh, but remarks that its occurrence was

impossible after the death of the Prophet. After settling the meaning
(2)
of naskh he states: "Naskh can affect the ruling without the wording;

it can affect the wording without the ruling it had embodied. It cannot

affect more than this. " From this statement it is obvious that jassäs

acknowledges only two modes of naskh, i. e. naskh al-hukm duna al-

tilawa and naskh al-tilawa duna al-hukm. The usulis are mainly

concerned with the documentation of their Figh doctrines. To this

extent, they take the Qur'an merely as a source of law. This third

mode of naskh has no connection with their Figh activities, because it

merely deals with the 'disappearance' of certain 'parts of the Qur'an. '

Therefore, it is suggested that this mode was embraced by those who

had been preoccupied with the Qur'än as a document. We have discussed

the first two modes of naskh and saw that they originated in the Figh.

This mode of naskh, as we shall see, originated in tafsir.

Q, 87,6-7 reads: "We shall teach you (Muhammad) the Qur'än

and you will not forget (any of it) except what God wills. " Scholars

differed in their interpretations of this verse. The majority argued that

 -190-

Muhammad was capable of forgetting some parts of the revelations,

but whenever it happened he was soon reminded so that the part he

had forgotten was not irrecoverably lost. One finds hadiths which
(3)
tend to establish this view. It is narrated that, "the Prophet

performed a prayer and part of the sura, he was reciting, was left out.

When he completed his prayer, Ubayy said: 'You left out the verse. '

The Prophet replied: 'Why did you not remind me? ' Ubayy said: 'I

thought it was abrogated. ' The Prophet replied: 'It was not abrogated,

I just forgot it. ' " In another had7ith(4) the Prophet is believed to have

declared: "I am human, I forget as you forget. " The scholars argued

that this forgetting had occurred because God Himself wanted to omit
(s)
certain parts of His revelation. jassäs pointed out: , The abrogation

of the wording happened because of Divine intention. God's intention

worked in numerous ways: the Prophet was made to forget; the people

who had remembered the verses, in his time, were caused to forget;

the verses were wiped out from their memories; the people were

commanded not to record them in the mushaf so that with the passage of

time, but before the demise of the Prophet, the verses would be forgotten. "

There were two readings of the clause 'iila mä shä'a Allah'

mentioned in Q. 87,7. Those who held that Muhammad did not forget

anything, read the clause as ineffective. Al-Kalbf(6) reported that

after the revelation of Q. 87,6-7 the Prophet did not forget anything.
(7)
Al-Farrä' said: "God did not want Muhammad to forget anything.

The mention of the clause illy ma shwa Allah was a declaration that if

God so desired He could cause His Prophet to forget. God said in

 -191-

Q. 17,86, 'If we desired, we weuld remove what we have revealed

to you. ' We are sure that God never wanted to realise this intention.

God also said to His Prophet: 'If you associated a partner with Allah,

(Q. 39,65). ' We know that

your deeds would avail you nothing

Muhammad never associated anyone with Allah. " Räzi(8) indicates

that since some read the clause as ineffective, this denies any

possibility, of Muhammad's forgetting revelation.

The second reading which regards the clause as effective, is

(9)
attributed to al-Zajjäj. He finds nothing amiss in declaring that

if God wanted Muhammad to forget, He could do so. But, whatever,

Muhammad forgot he was soon reminded of so that nothing was

irrecoverably lost. The champions of this theory further argued that

the forgetting may play a role in the moral teachings, but it has no

effect on the validity of the rulings. If the Prophet forgot any of the

obligatory duties and he was not reminded, it would certainly frustrate

the Divine will. Thus, mere forgetting was inconceivable. diths

Ham

come to play their role, i. e. to strengthen these doctrines. The Prophet

CAbbad "He has reminded

heard the Qur'an recital of and remarked: me
(10)
of a verse which I had forgotten. °

Mugatil(11) suggests that the clause ilia mä shä'a Allah implies

that Muhammad would be caused to forget and causing to forget is naskh.

God said: "ma nansakh äya aw nunsing bi Khairin

min na'ti minha aw

mithlihä. " In the light of this verse the meaning would be that you

(Muhammad) would forget part of the revelation

.
for ever. God will order

you not to recite it and not to rehearse it when you are praying. That
 -192-

would be either because of your forgetting or its elimination from

your hearts. In order to support this view there emerges a set of

ahadith.

CUmar (12)
Ibn reported: Two men recited a süra which was

taught them by the Prophet. They used to recite it; one night, they

stood up to pray but could not recall any word of it. Next morning

they went to the Prophet and mentioned the case. The Prophet said:

'It is part of what has been abrogated, ignore it. ' " Ibn Massüd
(13)
said: "The Prophet taught me a verse. I memorised it and

recorded it in my muus-1haf. When night fell I went to my bedroom but

could not recall the verse. Early in the morning I consulted my mushaf,

but found the page blank. I informed the Prophet and he said to me:

'Oh, s
ibn Masüd it was withdrawn ' " These ahh dith,
yesterday.

however, do not clearly say that Muhammad himself had forgotten, but

c (14)
there is a report attributed to ibn Abbas who said: "Revelation

used to descend upon Muhammad during the night and he forgot it by

the following day. "

(1 S)
Qatäda was of the view that Muhammad used to recite verses

of the Qur'an, but later these were withdrawn; God caused His Prophet

to forget. Hasan(16) remarked that Q. 87 was a clear reference to the

phenomenon of naskh al-hukm wa al-tilawa. Mugätil's interpretation

also stands in the line of this doctrine. We have pointed out that

according to him Q. 87 refers to naskh. These interpretations were

brought together with the tafsir of Q. 2,106: ma nansakh min aya aw

nunsihä na'ti bi Khairin minha aw mithlihä. One finds two verbs in

 -193-

this verse: nansakh and nunsiha. The first root was exploited by

the exponents of the theory of naskh, according to which some rulings

of the Qur'an were rendered ineffective but the wording of these

rulings was considered valid for recital in prayers. The second 'verb'

'nunsiha' was exploited by the adherents of this third mode of naskh to

provide evidence for its existence. For this second stem of Q. 2,106,

various interpretations were suggested. Some of them are quoted

below.

Tansaha = you (Muhammad) will forget it.

Tunsaha = you (Muhammad) are made to forget.

Nunsihä = we cause yoü to forget.

This last interpretation was most popular and attracted the

cUbaid b. cUmair
attention of most scholars. said: nunsihä means:

we lifted from you. ' Hasari said: that it means: 'your Prophet

would be instructed to recite a part of the Qur'än, then he would forget

it. ' Rabic said: nunsiha means: 'we withdraw it. ' Qatäda said:

'God caused His Prophet to forget whatever He wished. ' Ibn Zaid

maintained: nunsihä is equal to namhuhä ('we expunge it'). That the

omissions occurred by God's causation, was also alleged to be the

view of ibn Mascud who read Q. 2,106: 'mä nunsik' which means, "We
(17)
cause you to forget. " To bolster the view that Muhammad's

forgetting, if any, was by Divine intention, the Prophet himself was

believed to have said: It is very bad for one of them to say: 'I have

' "On (18)

forgotten so and so. the contrary, he was made to forget it. "

The arguments of the scholars who would not accept the occurrence
 -194-

of any omission from the Qurlan on the basis of Muhammad's human

failure, is summarised by Tabari: -(19) "It is impossible to hold that

the Prophet forgot some parts of the revelation which had not been

abrogated. If Muhammad had forgotten anything and he was not

reminded, his companions would not have forgotten because they

recited and memorised the verses. " The claim that Muhammad would

not forget anything was reinforced by interpreting Q. 87,6-7 as one of

the Prophet's miracles. The fact that such a lengthy Qur'an was

preserved word by word, although the Prophet was illiterate, was

definitely one of his miracles and was surely a Divine favour.

Wahidi(20) reads Q. 87,6-7: "We will cause you to recite the Qur'an

by reminding you of it. Therefore, you will not forget any part of it

which once you had rehearsed. " Further, the verse was considered

one of the earliest revelations of Mecca which in turn suggests, that

the whole life of Muhammad would be free from the shortcoming of

forgetting. Thus, it was a second miracle of the Prophet, since God

Himself ensured that Muhammad would not forget anything.

Some suggested that fa lä tansy (Q. 87,6) referred to God's

prohibition to Muhammad: "Do not neglect the Qur'an. " This would

be contrary to the foregoing interpretation, since it did not exhibit

the Prophet's miracle. Therefore, it has to be explained away by

comparing Q. 87 with Q. 75,16: "Do not move your tongue to pronounce

it, hastening to recite it, its collection and its recitation are our

responsibility. IS It was thought that given the existence of this verse,

(21)
no other verse needed to be issued, conveying the same message.
 -195-

The comparison of a verse with another verse was a common

device to support this or that view. One finds the comparison of

Q. 87 with Q. 17,86: "If we so desired we could remove what we have

revealed to you. " These verses were compared merely to make the

point that the clause ilia mä shwa Allah was ineffective, because it

was held that God never wanted to avail Himself of His intention to

erase the Qur'an.

Scholars who have seen Muhammad as capable of forgetting

were inclined to argue that such omissions were unimportant, since

these were not related to äyät al-ahkäm, but to moral regulations. In

the light of this interpretation the clause has a dual character, i. e.

positive and negative. In its negative sense, it was held that

Muhammad could not forget any part of the revelation originally

revealed to him. For its positive function it was urged that God may

have wanted to abandon some of His verses which He had once revealed

to Muhammad as part of the Qur'an. Muhammad may have momentarily

forgotten part of the revelation but it was soon recovered. To this

extent we have seen that ha_diths were propounded. Thus the idea that

forgetting may have occurred was accepted on the grounds that its

cause was God Himself.. Muhammad had omitted a verse and was not

immediately reminded by his companions, because they had thought that

the verse was withdrawn. "Withdrawal is one of the two modes of

(22)
naskh. " Zajjäj argued that Muhammad might forget some parts of

the Qur'anic revelation but this would have become clear to him, unless

the verse had been withdrawn. This interpretation of Q. 87 was seen

 -196-

as adequate in the light of Q. 2,106. We have seen Hasan

remarking that the second root of Q. 2,106 ns ) refers to the

phenomenon of naskh al-hukm wa al-tilawa. This root was taken

as a Divine reference to omissions from the Qur'än texts. The

tafsir of Q. 87,6-7 and Q. 2,106 helped a great number of ahädith

to emerge. Later, these ah9d7ith (which betray their origin in the

use of Qur'änic root agra') and in the wording of Q. 87,6-7 were used
(23)
to confirm the occurrence of either forgetting or withdrawal.
 -197-

CHAPTER EIGHT

JASSAS' CONCEPT OF NASKH

(1)
jassäs states: "People have disagreed concerning the

abrogation of the Qur'an by the sunna. Our companions allowed this,

provided the sunna prescribed knowledge, i. e. mutawatir and was not

Khabar al-Wähid. Abu al-Hasan used to narrate from Abu Yusuf that

the sunna by which the abrogation of the Quran was possible came by

tawätur and prescribed knowledge as, for instance, the report on the

wiping of the boots. " As far as the abrogation of the sunna by the
() )
Qur'an is concerned Jas states: "If the sunna can be abrogated

by the wahr which is not Qur'an, it can certainly be abrogated by the

wahy which is Qur'an. "

Shafici's predecessors, both Hanafis and Mälikis had allowed

the abrogation of the Qur'an by the sunna and vice versa. For Shäfici,

who had interpreted Q. 2,106 in the light of Q. 16,101, it was very

difficult to adopt this procedure. Moreover, when he arrived on the

intellectual stage, rejection of the role of the sunna because of its

contradictory nature was threatened by the ahl al-Kaläm. Therefore,

Shafi°i had to adopt the rule that only the Qur'an abrogated the Qur'an;

and only the sunna abrogated the sunna. The function of the sunna was
(3)
merely Bayan to the general provisions of the Qurän. ShäficPs

rigidity in this view secured the place of the sunna as a source of law

and the danger which had threatened it was now no longer felt. Even

the followers of Shafici, let alone the Hanafis and Malikis, felt free to
 -198-

revert to pre-ShafiC1 thinking. jassäs, a Hanafi exponent, had no

difficulty, therefore, in arguing that the sunna could be abrogated by

the Qur'an and the Qur'an could be abrogated by the sunna. The

Qur'an and sunna mutawatira could not be abrogated by Khabar al-

(4)
Wahid while the latter could be abrogated by the former.

We have seen in chapter six, that the Fugaha' of the east and

the west unanimously accepted 'stoning; differing merely as to its

source; whether it was the Qur'an or the sunna. The Mälikis and

the Hanafis confidently attributed it to the sunna. Shaficf himself

did not say that the stoning penalty originated in the Qur'an, but his

followers who had seen the inapplicability of his theory of takhsis,

traced it to a Qur'an whose tilawa was thought to have been withdrawn.

Thus the mode: 'naskh al-tilawa duna al-hukm' which was originally

created by Shafic1 on the problem of Ridäc, was now extended to the

Since its legitimacy by Shafi i,

problem of stoning. was accepted it

CAbd A117ahb. Mascud's

led Jassas to argue that in mushaf the wording

mutatabicät concerning the expiation of breaking an oath had existed.

The ruling is applicable, but the wording was abrogated.

Apart from the formula quoted above there also existed two other

formulae: naskh al-hukm duna al-tiläwa and naskh al-hukm wa al-tilawa.

The majority accepted these two formulae which, as we have seen,

originated respectively in the Figh and tafsir.

jassas, as an sü i accepted only two modes: naskh al-hukm

duna al-tiläwa and naskh al-tilawa duna al-hukm. The justification of

these modes was sought from Q. 2,106 which also spoke for the majority.
 -199-

In answer to a suggestion that naskh might mean izäla (eradication)

(5)
jassäs states: It refers to both the eradication of the ruling

without the wording and eradication of the wording without the ruling.

If someone seeks justification for one of these meanings, his view is

false because the general implication of the word naskh embraces both

categories. Further, the meaning of izäla is traced from the second

section (nunsihä) of Q. 2,106. Naskh, therefore, refers to

the abrogation of the ruling and izala. refers to naskh al-tiläwa duna

al-hukm. This answer comes in the course of his justification of the

He quotes Q. 16,101: "We substitute one äya

occurrence of naskh.

for another" and Q. 13,39: "God effaces what He pleases and confirms

what He pleases. " These verses always stand on an equal footing in

the justification of the theory of naskh. The former verse apparently

provides Qur'änic warrant because naskh has been considered as

(6)
equivalent to tabdil, i. e. substitution. In answer to an objection

that Q. 13,39 refers to the abrogation of narrative statements akhbär),

jassas remarked: God did not say that He would abrogate(the meaning

He wished. Ibn cAbbas "The meaning

of the) statements whenever said:

of Q. 13,39 is that God replaces whatever He wishes of the Qur'än and

He confirms whatever He wishes of the Qur'än, because He has the

master copy. " Thus, according to Jassäs Q. 13,39 also speaks about

the substitution of verses.

We have seen in chapter seven that Q. 2,106 was brought

together with the tafsir of Q. 87,6-7 on the grounds that both the verses

shared the common root 'i'. Further, in order to ascertain the meaning
 -200-

of naskh scholars always referred to its secular usage. Their

(7)
arguments are clearly outlined by Jassäs. He says: "The scholars

disagreed concerning the meaning of naskh. Some said: 'It refers

to nagl (transfer). ' They say: 'nasakha al-kitäb' (He copied the

book), i. e. he transferred what was in the original copy to another copy.

Others said: 'It refers to ibtäl (nullification). ' They say: 'nasakhat

al-shams al-7, ill, ' (the sun removed the shade). Some of them said:

'naskh is izäla. ' They refer to 'nasakhat al-rih al-athär' (the wind

obliterated the traces). These words are close in meaning, and whatever

naskh may mean in the Arabic language, when it is used of the abrogation

of the rulings, it is used metaphorically. " Jassäs, after quoting this

statement, rejects all the possible meanings of naskh, derived from

secular usage, whether it refers to nagl, ibbtäl or izala. He states:

Some believe that the meaning of naskh in the Arabic language is nag1;

this meaning does not exactly exist in the abrogation of the ruling.
(8)
Nagl either refers to the transfer of the ruling or transfer of a

worshipper from one ruling to another ruling. If nagl means the transfer

of the ruling, it cannot be accepted, because the ruling cannot be

transferred in reality. Further, nagl is logically applied to a thing

which can be transferred while the ruling cannot. If the naql means

the transfer of the worshipper from one ruling to another ruling, it would

not be considered as a transfer, if the worshipper devoted himself to

another ruling. Naskh al-kitäb refers to nagl metaphorically, but not

in reality, because when the written text is transferred from one place

to another, the original writing remains in its place. The statement

 -201

that naskh is izala in the language, would not be accepted because

izäla refers metaphorically to both the wording and ruling. Further,

it is feasible to say: "I removed azaltu) the stone from its place",

but it existed in another place as it had existed in its first place.

In contrast, the first ruling does not exist after its abrogation. It

is not proper to consider naskh equal to izäla except in a metaphorical

sense. The statement that naskh is ibtal cannot be considered valid

when it is applied to ahkäm, because the first ruling cannot be nullified

at all. The first ruling is merely not applicable in the second

(9)
situation, since the näsikh ruling was confirmed.

jassas restricts discussion of the word naskh to Sharica usage

(10)
and remarks: "Naskh is the declaration of the time of the particular

ruling which we thought would remain for ever, but the second ruling

made it clear that the time of the ruling was for a certain period and

it was now no longer valid. " He further remarked: "Whatever the

meaning of naskh might be in the Arabic language, it could not be

strictly applied in the ShariCa. " He quoted Q. 2,106 and maintained

that God Himself used the word naskh.

This meaning of naskh had not been defined by any of jassäs'

predecessors. Therefore, he was the first person to declare that naskh

ca (il)
in the Shari is the Bayän of the duration of the ruling. This

definition of naskh was adopted by jassas in order to refute the view

of those Muslim scholars who held that naskh never occurred in the

°
Shari a. It was also to refute those Jews who had declared
Islamic

that Moses had informed them that the Shari a of the Torah and the
 -202-

Sabbath would never be abrogated. Concerning the Muslim scholars

(12)
jassas stated: "Some of the modern scholars have asserted that

there was no naskh in the Shari°a of our Prophet. The occurrence

of naskh was merely an indication that the laws of the previous prophets

were abrogated like the Sabbath and facing towards the east or the west

while praying. They had argued that our Prophet was the last of the

prophets and his Shari a was confirmed and everlasting until the Day

of Judgement. The man (Abu Muslim al-Isfahani) who had held this

view was endowed with knowledge of rhetoric and Arabic, but he had

no knowledge of jurisprudence and the principles of jurisprudence.

Although it could not be doubted that he was perfect in faith, he

deviated greatly from the right path by declaring this dogma, since no

one had reported this view before him. Our predecessors and their

successors understood from the religion of God, that numerous rulings

were abrogated from it; and they have narrated these reports in a way

which could not be questioned. There are general, specific, confirmed

and obscure passages in the Qur'an. The one who rejected the occurrence

of naskh, rejected all its general, specific, confirmed and obscure

commands because these categories all arrived in the same manner.

This man had derived, from the abrogating and abrogated verses,

judgements which were excluded from the interpretations of our early

scholars. I could not understand where he had obtained his information.

However, I maintain that he had used his own judgement leaving aside

the reports of the salaf. The Prophet had said: 'Whoever interpreted

the Qur'an by using his personal opinion, certainly committed a sin. '
 -203-

jassäs divided the Jews who opposed the occurrence of

naskh into two groups. Firstly, those who refused to accept this

principle on logical grounds, maintaining that to accept this principle

would lead to the idea of Badä', which in no case could be ascribed

to God. Secondly, those who persisted in saying that Moses did

not allow them to accept the abrogation of the Sabbath and the

ca (13)
Shari of the Torah. In answer to the former group, jassäs said

that they maintained this view only because they could not understand

the meaning of naskh. Naskh indicates that the time of the obligation

of the first ruling has expired and that the first ruling is no longer

required in the second situation. It is possible that the rulings

governing the deeds of men may contradict each other. Some men are

asked to follow a ruling which is not prescribed for others. For

example, prayer is prescribed for the pure and at the same time forbidden

to menstruating women. These rulings are observed in one situation.

In a similar vein, God causes some to die and creates others. He

makes some ill and restores others to health. He makes some rich and

makes others penniless, and this also happens to one person in different

situations. There is here nothing which could lead one to the concept

of Badä', since what God willed in the second situation is different

from what He willed in the first situation. Thus, the obligatory duties

follow the same course. As for those who held that Moses had informed

them that the laws of the Torah would not be abrogated, they had

admitted that the Torah had informed them about the arrival of the

prophets after Moses. If it is possible to declare this view lawful,

 -204-

it meant that God had said: "Declare the Sabbath sacred until I

allow you (to work on this day) by the laws of the Prophet who

follows Moses. " It was also possible if God had said: "Declare

the Sabbath sacred until through your own mouth I allow you (Moses)

to work on that day. " Moreover, if the Jews declaration about the

validity of the Sabbath forever had been confirmed, we certainly would

have known it. Since we did not know it - although we heard the

reports which they had handed down - we knew that they merely
(14)
interpreted the wording in that way and made a mistake.

jassas asserts(is) that any ruling which bears the word ta'bid

or shows otherwise that it is eternal, would not be abrogated, because

it requires us to act upon it forever. It is inconceivable that such a

ruling was for a short time or for a defined period, because this would

lead to rulings being invalidated. He was reminded that the Jews

assert that holding the Sabbath sacred as long as the Heavens and the

earth remained firm was decreed in the Torah, whereas it was abrogated

through the Prophets who followed Moses. jassas remarked that what

the Jews had said was not confirmed. Even if that was confirmed, it

might refer to ta'bid or otherwise. Since we could not comprehend the

exact meaning of the word of the Torah, what they had said was not to

be accepted. The scholars who allowed the abrogation of such a ruling,

allowed it because we have to follow the later command which would

contradict or confirm the previous one. According to this view, the

meaning of ta'bid would be connected with the possibility of naskh if

what had been said was: 'Follow these practices in the future forever -

until I abrogate them. ' However, the sound view is that a ruling which
 -205-

shows its eternal nature would not be abrogated. Otherwise, it

would be possible to say of all the general meanings of the Qur'an

that we believe in them if God did not intend their particularisation.

According to jassas the occurrence of naskh is shown by

Q, 2,106, Q. 13,39 and Q. 16,101. Although he knew the use of

(16)
Q. 22,52: "God eradicates (yansakh) what the Devil attempts to

insinuate -", he ignored it. But in answering an objection that the

abrogation of the Qur'än by the sunna is not possible, because the

latter is not considered better than the former, he stated that if the

abrogation of the tiläwa may occur and not involve the abrogating

wording of the Qur'an, it is possible that it involve the abrogating

(17)
wording of the sunna. The majority of scholars dismissed the

use of Q. 22,52 in their discussion on the naskh, on the grounds that

(18)
the verse does not refer to the abrogation of God's revelation.

However, when they wanted to nullify or suppress the rulings or

wordings of the Qur'an, they fell back upon the verse and made use of

it. Apart from jassäs, Tabari can be seen using Q. 22,52 when speaking
(19)
of the suppression of rulings. He also argues that there were some

verses of the Qur'an which had been revealed as part of the Qur'an,

but later were forgotten or suppressed. That is why we could not find

them in the present mushaf. He adopts this view after rejecting the

objections of those Muslim scholars who could not accept that

Muhammad could have forgotten some passages of the Qur'an. Tabari

(20)
produced two instances and argued that there are many more.
 -206-

(1) Anas b. Malik reported: the following was revealed

concerning those seventy Ansär who were killed at Bi'r

Mauna: "Inform the people on our behalf that we met

our Lord and He was pleased with us. "

(2) Abu Musa al-Ashcari reported that they used to recite:

"Were ibn Adam to possess two wädis of property, he would

ask for a third. Nothing will fill the maw of ibn Ädam

except dust, but God will forgive him who repents. "

The latter report is also recorded by jassäs, but on the authority

(21)
of Anas. However, he rejected this, and the rest of the reports

which considered wordings as having been revealed to be part of the

Qur'än, arguing that they were not considered as part of the Qur'än,
sýý-="
because the word may be used for the sunna as well as for

the Qur'an. An objection(22) was raised claiming that all the abrogated

wordings would be unknown to the people and therefore could not be

recited. The confirmation of the reports and their recitation suggested

that the reports existed after the demise of the Prophet. How could a

report once abrogated be known to have existed until this day? jassas

answered that the reports did not contain the exact wording of the

Qur'an. These were reported by words other than the Qur'än; the

original wording was forgotten while the ruling was not forgotten. He

further argued that God could remove the wording from the hearts of the

people as He said: "If we wished, we could remove what we have

revealed to you, " (Q. 17,86). When God removed the Qur'än and

caused His creatures to forget, this was no longer the Qurlan, because
 -207-

what is not present could not be called the Qur'an. Therefore it

was possible to believe that when a revelation had come down with

its original wording, it was Qurlan; but when it was removed, it

was no longer Qur'an.

(23)
jassäs' opponent(s) quoted several passages from the

Qur'än in order to show that abrogation or withdrawal of the verses

was impossible. God said: "We revealed the Reminder (the Qur'än)

and verily We are its guardian" (Q. 15,9). God also said: "It is

incumbent upon Us to put (the Qur'än) together and its reading, and

when we read it follow its recitation. Moreover, it is for us to

explain it" (Q. 75,17-19). The explicit meaning of the verses requires

that God would guard the Qur'an forever and its implication is for the

whole Umma, because He did not specify the time or the generation.

God said: "The Qur'an is but a Reminder to the people" (Q. 12,104).

God in this verse informed us that the whole Qur'än is a Reminder and

it confirms that there would be no abrogation of the wording, because

what is abrogated or forgotten and did not reach us, would not be

considered as a Reminder for the people. God said when instructing

His Prophet: "This Qur'än has been inspired in me, that I may warn

you and whomsoever it may reach" (Q. 6,19). God informed us that

the Prophet would warn us with all the Qur'an and what was withdrawn

could not be used for warning.

jassäs explains away these verses simply saying that they

refer to something else. These verses do not prevent the possibility

of the ruling being abrogated. In similar vein, the verses do not

 -208-

prevent the possibility of the wording being abrogated. The view

that these verses do not prevent us from talking about the abrogation

of the wording or ruling might mean that Jassäs was dealing with the

two phenomena of naskh: naskh al-tiläwa duna al-hukm and naskh

al-hukm duna al-tiläwa. In contrast, Tabari who found nothing amiss

in declaring that verses together with their rulings were withdrawn and

were not recorded in the mushaf, was also dealing with the two

phenomena but different from the two mentioned above. He was not

concerned with the mode: naskh al-tiläwa duna al-hukm. The reason

Tabari was not interested in this mode of naskh can be put forward in
(24)
J. Burton's words: "Those scholars who accepted with equanimity

the notion that the Qur'an might abrogate the sunna, or the sunna the

Qur'an (and Tabari

.
is to be reckoned in their number) felt themselves

to be under no obligation to consider this third mode of abrogation.

Their concern was with only two alleged phenomena - the setting aside

of the ruling of one verse by that of another, where both have survived

in the documents; and the simple non-survival of both the wording and

the ruling of an alleged revealed element of the original Qur'än. "

(25)
Tabari had found the stoning penalty in the sunna.

Therefore, he was not concerned with the 'stoning verse' whether it was
(26)
revealed to become part of the Qur'an or not. He defined Q. 2,106:

"Whatever ruling of the Qur'an we transfer to a different legal category -

God changes what was lawful into unlawful, or vice versa. He changes

what was not prohibited into what was prohibited, or vice versa. "

Tabari's insistence that mä nansakh min äya referred to the abrogation

 -209-

of the ruling illuminated the fact that for him the sunna ruling

might abrogate the Qur'än ruling, since it was possible that the

second ruling might be better than the previous ruling whereas the

be better than the previous Via, because all

second s could not

the Qur'an verses are equally muCjaz (inimitable). Whether the

Qur'an abrogates the sunna or not; whether the sunna abrogates the

Qur'an or not, Q. 2,106 is a basis for every scholar who argues in

favour of the doctrine of naskh. Those who argue that the sunna

cannot abrogate the Qur'an appeal to na'ti bi Khairin minhä aw mithlihä

saying that the sunna cannot be better than the Quran, nor can it be

mithl to the Qur'an. Those who held the reverse attitude interpreted

these words in a different way. jassas can be listed among the latter

group. He argued that the words Khairin minhä refer either to wording

of the verses, or refer to the fact that the second ruling would be

better for us in the sense that it would offer richer rewards. No one

would argue in favour of the first sense because no aya is considered

better than any other aya. Whereas nothing prevents us accepting

that the ruling confirmed by the sunna would be more suitable and more

profitable than the ruling of the Qur'an. That was the reason God

revealed some rulings through the Qur'an and some rulings through the
(27)
wahr, i. e. the sunna. If that was what was meant by the aya, it

indicated the permissibility of the abrogation of the Qur'än by the

sunna. The wording mithliha might refer to resemblance in all ways

or in some ways. The word mithl can be applied when two things

resemble each other in some ways as God said: "And (there will be)
 -210-

fair ones with lovely eyes like hidden pearls" (Q. 56,22). God

used the word mumathala because of the resemblance in some ways,

since it is known that the eyes do not resemble pearls in every way.

They merely resemble each other because of their clarity and purity.

The sunna can resemble the äya of the Qur'an in that both are more
(28)
proper and more profitable and that both are wad and come from God.

These arguments suggest that a way was going to be found for

the sunna to replace the Qur'an. We have seen in chapter six that

Q. 4,15-16 by the CUbada

jassäsl main purpose was to abrogate hadith

and thus ensure that the sunna was the basis of the 'stoning' before

Q. 24,2. In order to make his argument compelling, he put much

weight on the recognition of the sunna and went one step further:

that the sunna ruling might be better than the Qur'an ruling. jassäs

cUbada haTdith after Q. 24,2 and thus could

could place the argue that

the former explained the latter. But what then of the concept of the

Qur'än's abrogation by the sunna? One gets a clear impression that

Q. 2,106 was interpreted in order to defend the usul al-figh. The

question of the Qur'än's abrogation by the sunna and vice versa was

now rooted so deeply among the later generations, that scholars like

Qurtubi, Razi and Ghazzäli were able to produce instances of such

occurrences.

(2 9)
Qurtubi, a Maliki, states: "The Qur'än can be abrogated

by the sunna. This occurred in the case of wasiyya, when the Prophet

said: 'lä wasiyya li wärith'. This is clear in the arguments of Malik,

but Shäfici and Abü Faraj (Mäliki)did not accept this. The first is a
 -211-

sound view, since both the Qurlan and the sunna come from God.

The flogging of Q. 24,2 is abandoned for the non-virgin offenders

who are stoned to death. Nothing has abrogated flogging except

the sunna. The sunna can be abrogated by the Qurlan. This

occurred in the case of iqbla. There is no reference in the Qur'an

to the prayer that was performed facing the Jerusalem igbla""

(30)
Razi, after listing ShafioPs objections: i. e. the Book

cannot be abrogated by the sunna and the sunna cannot be abrogated

by the Book, can bring evidence from the majority to show that such

cases have occurred. "The verse referring to was iyya (Q. 2,180) was

abrogated by the Prophet's saying: 'there is no wasiyya in favour of

heir. ' Äyat al-laid (Q. 24,2) by stoning

an was abrogated which was

referred to in a hadith. The former case had been rejected by

äyat
Shafio who argued that the al-miräth prevented us from making

the was iyya. The other case was also rejected by Shafici who said
°Umar's idhä zanay f- arjumuhumä
that report al-Shaikh wa al-Shaikha

al-battata, was revealed to be part of the Qurlan. Perhaps that stoning

verse had abrogated Q. 24,2. " (We have seen in chapter six that

Shäfici never said so. This argument was later developed by his
(31)
followers).

(32)
Ghazzali, Shafici's follower, also produces some instances

where the Qur'an has abrogated the sunna and the sunna the Qur'än.

Concerning the former case, he argued that the Jerusalem gibla, i. e.

the sunna, was replaced by the Meccan gibla, i. e. the Qur'an.

Regarding the latter case, he produced the abrogation of Q. 2,180 by

 -212-

the sunna of the Prophet: '1a wasiyya li wärith. ' Although Ghazzäli

refers to three modes of naskh, he provides the examples for the two;

this in turn suggests that as an Usuli he was not interested in the

form of naskh according to which both the ruling and wording were

dropped. He says, one of the two modes of naskh is that the ruling

is abrogated while the tiläwa is not; this being the case of wasiyya.

According to the second mode, the tilawa is abrogated while the ruling

is not; this being the case of 'stoning. ' Thus, he corresponds to

Shafici and jassäs who accept these two modes of naskh, but disagrees

with Shäfici in his treatment of stoning.

Before we go back to pre-jassäs thinking we examine his

arguments concerning the sunna's abrogation by the Qur'än. According

to jassas this principle is acceptable. The proof of the possibility of

the sunna's abrogation by the Qur'an is Q. 16,89: "We revealed the

Book to you as an exposition of all things. " When naskh is the Bayän

of the period of the (first) ruling, the general meaning of the verse

demands the possibility of the sunna's abrogation by the Qur'an.

(Because the Qur'an would be revealed to explain the duration of the

first ruling established by the sunna). Moreover, when it is possible

to abrogate the sunna by one wem, i. e. the sunna, it is also possible

to abrogate it by the other wahy i. e. the Qur'an, since both the

Qur'an and the sunna come from God. There is no disagreement among

the salaf that the Qur'än may abrogate the sunna. They have mentioned

numerous cases and one of them is the case of the igbla

.
The Prophet

performed his prayer for more than ten months facing the Bait al-magdis
 -213-

when he first arrived at Medina. Later God revealed: "Turn your

face towards the Kacba" (Q. 2,144), and by this the earlier practice
(33)
of the Prophet was abandoned.

In answer to a question that Q. 2,106 and Q. 16,101 clearly

say that only a part of the Qur'an can abrogate the other part of the

Qur'an, Jassäs remarked: The verses merely indicated that naskh

occurred in the Qur'an. They did not state what the nasikh would be,

but did suggest that naskh would occur before the mithl or khair was

brought. His interlocutor remarked that the learned merely agree on

the abrogation of the Book by the Book; and the abrogation of the sunna

by the sunna. jassas claimed that they also agreed on the abrogation

of the sunna by the Qur'än. When he was reminded that Shafici never
(34)
accepted this jassas answered: The people who preceded

Shäfici accepted this, how could Shäfici go against them, and Shafici

could not defend his theory upon the views of his predecessors, whereas

we can certainly defend it from those of our predecessors. " The

opponent of jassäs referred his case to Q. 16,44: "You (Muhammad)

may explain to mankind that which has been revealed for them, " and

argued that the Prophet was sent forth to explain the Qur'an. Therefore,
(35)
the Qur'an cannot explain the sunna. jassäs explained away

the verse by saying: the verse enjoined upon the Prophet to explain

the Qur'an whether it needed clarification or not. God may reveal the

abrogation for the sunna and then the Prophet would explain it. This

would be a clear case of the sunna's abrogation by the Qur'än. Moreover,

if the verse means that the Prophet should explain the Qur'än which
 -214-

requires explanation it still does not deny the possibility of the

sunna's abrogation by the Qur'an. The Qur'an explains the Qur'an

and the Qur'an abrogates the Qur'an. The sunna explains the sunna

and the sunna abrogates the sunna. Therefore, the Prophet's

character of elucidator of the Qur'an does not prevent the Qur'an from

abrogating the sunna.

When the question as to whether the Qur'an can abrogate the

sunna was raised before Shäfici, he had replied that it was impossible.

However, if that had happened, the Prophet immediately would have

introduced a second sunna in order to demonstrate that his first sunna

was abrogated by his second sunna, so that it would become clear that
(36)
an act could be abrogated by a similar act. Shäfici had defined
(37)
naskh as izala and taraka. The latter meaning he applied in the

case of the Jerusalem gibla - that it was abandoned. He pointed out

that no ruling was ever abandoned unless it was replaced. This was

a clear reference to Q. 16,101: "When we substitute one aya for

another aya, " From this Shäfici argued that the sunna abrogated the

sunna; the Qur'an abrogated the Qur'an.

The sunna would not have been considered above the Qur'an if

Shafici had been very strict about his special principles of abrogation.

On the problem of stoning Shafici showed himself weak when he discussed

the problem of stoning in the F igh. The logical argument was that since

the stoning was not mentioned in the Qur'an, it must be sunna. The

followers of Shafici had, however, endeavoured to show that the stoning

was in a Qur'än whose tilewa was abrogated. But this argument could
 -215-

not win the hearts of the Hanafis and the Mälikis. They argued that

the stoning was the sunna and it abrogated the Qur'an. The principle:

the sunna can abrogate the Qur'an, was later extended to other

problems where the Qur'an showed seeming contradiction to the sunna.

The principle was justified by referring to the wording of Q. 2,106.

The verse was also shown to provide sufficient grounds for the above

mentioned modes of naskh. Because naskh was used to suppress the

ruling, on the one hand, and the wording, on the other hand, its

vindication was sought from the Qur'än itself. Numerous verses

could have helped to justify the doctrine, but the choice of Q. 2,106

was marvellous, since it provided justification for several claims

discussed under the rub. ric of naskh, such as a lighter command can

be replaced by a more demanding command and vice versa. jassäs

accepted the principle of naskh al-hukm duna al-tiläwa because he

could not reconcile the apparent contradiction within and between the

sources. He further accepted the principle of naskh al-tiläwa duna

al-hukm because he had to defend the ruling of mutatäbicat whose

tiläwa did not appear in the mushaf. Naskh, therefore, seems to

have appeared as an element in the secondary science of Usu-1 al-figh

in order to defend and justify a particularFigh doctrine. Ikhtilaf al-

Fugahä' is responsible for the emergence of differing principles of

naskh. The differences were brought back to the key verses of the

Qur'an and thus used to legitimise actual occurrence of naskh.

 -216-

NOTES

Chapter One: Introduction to the manuscript and text.

(1) Fu'äd Sayyid, Fihris Makhtutat, (3 vols. ) Cairo, 1347/1954,

Vol. 1, p. 240.
(2) Ibid.
(3) Usul al=Jassäs, fo. 329b (unedited portion).
(4) Ibid.
(5) E. I. (4 vols) London, 1924, Vol. 4, p. 1055.
,
(6) Abu Yusuf, K. al-Kharäj, Cairo, 1352/1933; According to Khatib
Baghdädf, Abü Yüsuf was the first person to compose a book on
Usül al-figh, Ta'rikh Baghdad, (14 vols) Beirut, n. d. Vol. 14,
p. 246. But cf. Schacht, The Origins of Muhammadan jurisprudence
Oxford, 1979, p. 133: "The statement of Khatib Baghdädt, that
Abu Yusuf was the first to compose books on the theory of law on
the basis of the doctrine Abu Han ifa is not confirmed by the
of ,
old sources. "
(7) Ibn al-Nadim, al-Fihrist, (2 Vols) London, 1970, Vol. 1, p. 506.

(8) Shäfici, Risäla, Cairo, 1358/1939.

(9) M. Khadduri, Islamic Jurisprudence: (Shafici's Risäla Baltimore,
,
1961, p. 41.
(10) Sacid Allah Qadi, Principles of Muslim jurisprudence, Lahore,
1981, p. 2. Al-Karkhi's al-Usül is published as a supplement to
al-Dabusi s Ta'sis al-Nazar, Cairo, n. d. quoted by Shehäby,
N., "cllla and Qiyäs in early Islamic legal theory, " J. A. O. S.
1982, p. 27.
(11) Sacid Allah Qadi, op. cit. loc. cit. Khudari, Us l al-Figh,
Beirut, 1969,5.10.
(12) cf. Sarakhsi, Usül, (2 Vols), Haiderabäd, 1372/1952, Vol. 2,
pp. 53-86.
(13) M. Zaid, al-Ataskh fi-1 Qur'än a1-Karim, (2 Vols) Cairo,
1383/1963, Vol. 1, p. 82.
(14) Text, p. 101.
(15) jassäs, Ahkäm al-Qur'an, (3 Vols) Cairo, 1347/1928, passim.
(16) Zarkashi, al-Burhan, (4 Vols) Cairo, 1376/1957, Vol. 2, p. 40.
(17) Suyüti, al-Itgdn, (2 Vols) Cairo, 1370/1951, Vol. 2, p. 26.
 -217-

Chapter Two: The author.

(1) jassäs, op. cit. Vol. 1, foreword.
,
(2) Dihkhüda, Lughat Nama, Tehran, 1315/1897, Vol. 1, p. 378.
(3) E. I. (new edition) Vol. 2, p. 486.
(4) Kah4ala, Mu jam al-Mu'allifin, (15 Vols) Damascus, 1376/
1957, Vol. 2, p. 7.
(5) Khatib Baghdädi, op. cit., Vol. 4, p. 314.
(6) Dihkhuda, op. cit. , loc. cit.
(7) Zirikli, al-A°läm, (10 Vols) Cairo, 1346/1927, Vol. 1-2, p. 165.
(8) Ibn Qutlubghä, Täj al-Taräjim, Baghdad, 1382/1962, p. 6.
(9) Ibid; jassas
op. cit. loc. cit.
, ,
(10) Ibn al-Nadim, op. cit. , p. 514.
(11) Ibn Kathir, al-Bidäya wa-1 Nihäya, 14 Vols, Beirut, 1386/1966,
370 A. H.
(12) jassäs, op. cit. loc. cit.
,
(13) Dhahabi, Tadhkirat al-Huffäz (3 Vols) Haiderabad, 1377/1957,
Vol. 3, no. 781.
(14) al-SamCani, K. al-Ansäb, (6 Vols) Haiderabäd, 1382/1962,
Vol. 3, p. 282.
(15) E. I., loc. cit.
(16) Qurashi, al-Jawähir al-MudTca, (2 Vols) Haiderabäd, 1322/1913,
Vol. 1, p. 84.
(17) E. I., loc. cit.
(18) Ibid.
(19) Kawthari, Magälät, Cairo, 1388/1968, p. 643; Baghdadi,
op. cit., loc. cit.
(20) Ibid.
(21) Ibn Kathir, op. cit. , Vol. II, p. 351.
(22) Baghdädi, op. cit., Vol. I, P. 265.
(23) Qurashi, op. cit., Vol. 2, p. 24. Ibn Kathir, o2. cit. , Vol. 12,
p. 17.
(24) Ibn Kathir, op. cit., loc. cit.
(25) Qurashf, op. cit., Vol. I, p. 85.
(26) Ibn Qutlübghä, op. cit., loc. cit. Ibn al-Athir, al-Kämil ff-1
Ta'rikh, (9 Vols) Cairo, 1353/1934, Vol. 7, p. 106.
(27) Ibn Kathir, op. cit. , 370 A. H.
 -218-

fi Cilm tJsu1 al-figh,

(28) Dawalibi, al-Madkhal Beirut, 1385/1965,
Shahrastäni, ; va-1 Nihal, (3 Vols)
p. 170; al-Milal Cairo,
1386/1948, Vol. 1, pp. 56-7.
(29) Text, p. 31.
(30) Ahkäm, Vol. 1, p. 50.

(31) Ibn al-Nadim, op. cit., p. 514.

(32) Ibn Kathir, o. cit. , 340 A. H.
(33) Sacid Allah Qadi, op. cit. pp. 37-38. Ibn Qutlubgha, op. cit.,
,
p. 91.
(34) Ahkäm, passim; According to Sacid Allah Qädi who prepared
a'partial edition of Usül al-jassäs "the chapters of Qiy9s and
I'tý ihäd this is the only copy available to us. He says:
,
1, a) ce sß.19ö3.,..; äb la" Io in v1&. 11 v 11,1. x" 13C)o%. I LA
_. . . -
r äý.yl, y (Jý 3I
"iv I u!.. JI °9 ä6ýlýý., 1I i.
e . ýº
. º. tsi uti. E:r. - uo9 -
See Sacid Allah Qädi, op. cit., p. 2. cf. Marie Bernand. The
Hanafi Usul al-figh through a manuscript of jassäs, J. A. O. S.
1985, p. 623.

(35) Ibn al-Nadim, op. cit. , p. 11.

(36) Sezgin, Geschichte Des Arabischen Schrifttums, (5 Vols) Leiden,
1387/1967-, Vol. 1, p. 624.
(37) Ha 1 Khalifa, Kashf al-Zunun, (6 Vols) London, 1253/1837,
Vol. 2, p. 555.

(38) Fu'ad Sayyid, op. cit., Vol. 1, p. 263.

(39) Ibid.
(40) Ibid.

Chapter Three: The sources of Islamic law and naskh.

(1) Q. 2,97.
(2) cf. Q. 75,94.
(3) See below, p. 95.
(4) Abu Yüsuf, o . cit. , p. 35; cf. Sarakhsi, Usul, Vol. 2, p. 8.
(5) Muslim, Sa_hi_h, (8 Vols) Cairo, 1375/1955, Vol. 2, p. 169.
(6) cUthmän, H. Shafici and the interpretation of the role of the
,
Qur'dn and the Hadith, unpublished Ph. D. thesis, presented to
the University öf St. Andrews, July 1976, p. 29.

(7) Malik, Muwatta, (2 Vols) Cairo, 1370/1951, Vol. 2, p. 833.

 -219-

(8) Kindi, K. al-Wulät wa-l-qudät, Beirut, 1908, p. 311.

(9) cf. Tabari, Tafsir, ed. Shakir, (15 Vols) Cairo, 1380/1960,
Vol. 8, p. 34.
(10) cf. Schacht, Introduction to Islamic law, Oxford, 1964, p. 18.
(11) Muwatta', Vol. 2, p. 497.

(12) Qurtubi, Tafsir, (18 Vols) Cairo, 1373/1954, Vol. 10, p. 76.

(13) Shäfici, al-Umm, (8 Vols) Cairo, 1381/1961, Siyar al-Auzäci,

p. 356.
(14) Abu Yusuf, K. al-Kharäj, p. 42.
(15) Ibid, p. 43.
(16) jassäs, Ahk Vol. 3, p. 154.
(17) Kindi, op. cit., p. 309.
(18) Goldziher, Muslim Studies Translated from the German by
C. R. Barber, (2 Vols) London, 1971, Vol. 2, p. 38.
.
(19) Schacht, op. cit., p. 26.
(20) Coulson, A History of Islamic law, Edinburgh, 1978, p. 31.
(21) Mälik, op. cit., Vol. 2, p. 765.

(22) This subject is discussed in chapter S.

(23) Malik, op. cit., Vol. 1, p. 299; cf. Shafici, Risäla, p. 122.
(24) A. Rippin, Naskh al-Qur'an and the problem of early tafsir texts,
Bulletin S. G. Ä. , Nov. 1984, p. 25.
(25) Abu Yusuf, K. al-athär, Haiderabad, 1355/1936, p. 14. jassäs,
Ahkam, Vol. 2, p. 425; Text, p. 145.
(26) According to one report, Q. 9,5 abrogated one hundred and twenty
four verses of the Qur'an. See Hibat Allah, al-Ngsikh wa-1
mansükh, Cairo, 1387/1967, p. 51.

(27) Shaibäni, K. al-Siyar al-Kabir, ed. M. Khaddüri, Maryland,

1966, p. 94.
(28) Risäla, p. 57.
(29) cf. Q. 12,6,21,101; Q. 66,3.

(30) cf. Q. 35,43; Q. 48,23.

(31) See below, p. 48-

(32) K. al-Kharäj, p. 5.
(33) Goldziher, o p. cit. , Vol. 2, p. 24.

(34) Abu Nucaim al-Isfahäni, Hil at al Awliyä (10 Vols) Cairo, 1936,
Vol. 6, p. 332.
 -220-

Cala Siyar i,
(35) Abu Yusuf, al-Radd a1-Auza Cairo, n. d., p. 31.
(36) K. al-Kharaj p. 19.
,
(37) Risäla, pp. 453-5.
(38) Shafici, Ikhtiläf Mälik, p. 201.
(39) Sarakhsi, Mabsut, (30 Vols) Cairo, 1324/1906, Vol. 10, p. 30.

(40) Ibid., p. 24.

(41) Q. 65,4.
(42) Muwatta', Vol. 2, p. 497.

(43) Ibid.
, pp. 5-34.
(44) ShafiC 1, Ikhtiläf al-Hadith, p. 524; Umm, Vol. 1, p. 103.

(45) Umm, Vol. 5, pp. 26-7; Vol. 8, p. 226. The translation of

these ahadith is from J. Burton, The Collection of the Qur'an,
Cambridge, 1977, p. 87.

(46) This hadith is tendentious because it tries to endorse the

Qur'änic ten by CA'isha.
alleged sucklings reported
(47) Umm, Vol. 5, p. 27.
(48) Muwatta', Vol. 2, p. 601.

(49) Shäfici, Ikhtiläf Mälik, p. 224; cf. Hamadhäni, al-Ictibär, Hirns

1386/1960, p. 187.
(50) Burton, The Collection of the Qur'an, p. 88; Malik rejects
Sao-id's opinion in favour of practice, see below p. 50.
(51) Umm, Vol. 5, p. 27.
(52) Makki, al-Idah li näsikh al-Qur'an wa mansukhihi, Riyäd, 1369/
1976, p. 44.
(53) Ahkäm, Vol. 2, p. 150; Also see below, p. 143.
(54) Ibid, Vol. 1, p. 496; Also see below, p. 133.
(55) Mabsut= Vol. 6, p. 32.
(56) Umm, Vol. 5, p. 235.
(57) This is a clear example of the growth of isnäd.
cilm,
(58) Jimäc al p. 273.
(59) Ibn Qutaiba, Ta'wil Mukhtalaf al-Hadith, Beirut, 1393/1973,
pp. 3-6.
(60) E. I. Article on Usulal_figh, Vol. 4, p. 1054.
,
(61) jimac al calm, loc. Cit.
(62) Ta'wil, pp. 119,193.
(63) Shafici, K. Siyar al Auzä°i, p. 339; Risäla p. 224.
 -221-

(64) Shafici, Bayan Fara'id Allah, p. 2 88. The translation of

these ahadith is from Schacht, The origins of Muhammadan
jurisprudence, p. 45.
(65) Ibid. Burton, The Collection of the Qur'än, p. 54.
,
(66) K. Siyar al-Auzäci, p. 341.
(67) Ibid.
(68) Ibid.
(69) Ibid.
(70) Text, p. 74; Also see Coulson, op. cit., p. 90.
(71) Muwatta', Vol. 2, p. 721.
(72) Shafici, K. al-Musnad, p. 389; Umm, Vol. 6, p. 254.
(73) K. Siyar al-Auzäcr, p. 340.
(74) Ikhtiläf Mälik, p. 218; Umm, Vol. 5, pp. 44,49.
(75) Risäla, pp. 110-11.
(76) Muslim Studies, Vol. 2, p. 31.

(77) cf. Schacht, The origins, p. 47.

(78) Nahhas, K. al-näsikh wa-1 mansükh, Cairo, 1323/1906, p. 7;
see below, p. 99.
(79) See above, p. 27.
(80) Muýta', Vol. 1, P. 35
.
(81) Ikhtilaf Malik, p. 226.
(82) Ibid; cf. Abu- Hanifa, al-Figh al-Akbar, Haiderabäd, 1373/1953, p-4-
(83) This doctrine is attributed to Shacbi, see Nahhäs, op. cit. p. 123.
,
(84) Risäla, p. 108.
(85) Ta'w11, p. 122.
(86) Muwatta', Vol. 1, p. 5.
(87) Därimi, Sunan, (2 Vols) Cairo, 1386/1966, Vol. 1, p. 221.
(88) Risäla, p. 284.
(89) Ikhtiläf cA1i cAbd Allah b. Mascüd, - p. 164.
wa
(90) Ikhtilaf Malik, p. 200.
(91) Text, p. 109.
(92) Ta'wil, pp. 97,102.
(93) Ibid. p. 52.
,
(94) Ibid. p. 53.
,
 -222-

(95) Ikhtilaf Mglik, p. 197; Ikhtilaf al-Hadith, p. 564. For an

instance where the Mä1lkis reject sunna and use i äs, see
Ikhtiläf Mglik, p. 260.
(96) K. al-Kharäj p. 70.
,
(97) Muwatttaa, Vol. 1, p. 144; Ikhtilaf Mglik, p. 205.
(98) Ikhtiläf Mglik, pp. 207,228.
(99) Ibid. p. 229.
(100) Risala, p. 432.
(101) Ibid. pp. 433-34.
,
(102) Ibid. p. 426.
,
(103) Ibid., p. 438; Muwatta', Vol. 2, p. 591. For full version of
this hadith see p. 132.
(104) Ibid., p. 440.
(105) Jimäc al calm, p. 280.
(106) Siyar al-Auzäci, p. 338.
(107) Schacht, The origins p. 51.
(108) Usul al-Jassäs fo. 192 (unedited portion).
(109) Text, p. 124; According to Shatibi, this is I mäc, (a1-Muwäfagät,
(4 Vols) Cairo, 1969, Vol. 3,6.106. )

(110) Ikhtilaf Malik, p. 262. The translation is from Schacht,

The origins, loc. cit. with few changes.
,
(111) Risäla, p. 599.
(112) Ikhtilaf Malik, p. 259. The translation is from Schacht,
The origins, p. 61.
(113) Muwatta', Vol. 2, pp. 713-4; Ikhtilaf Malik, p. 246.
(114) Ibid. Vol. 2, p. 568.
,
(115) Ibid. pp. 775,794,804,812,865.
,
(116) See above, p. 22.
(117) Muwatta', Vol. 2, p. 671; Ikhtilaf Malik, p. 220.
(118) Tabari, Annales, (4 Vols) Netherlands, 1964, Vol. 4, p. 2505.
(119) Muwatta' Vol. 2, p. 859.
,
(120) Ikhtiläf cAli cAbd Allah b. Mascüd,
wa p. 169; Umm, Vol. 1, p. 133.
(121) Ikhtildf Malik, p. 268.
(122) K. al-Kharäj p. 203.
,
(123) Ibid. p. 59.
,
 -223-

(124) Ikhtilaf Mälik, p. 260.

(125) Risäla, p. 445.
(126) cf. Q. 4,59,65,69,80,171; Q. 8,20; Q. 33,36; Q. 24,48-52;
Q. 59,7.
(127) Jimdc al-calm, 274; A. W. Khalaf, calm
p. cf. usül al-figh,
Cairo, 1397/1977, p. 163; Also see below, p. 180.
(128) Makki, op. cit., p. 68.
(129) Tabari, Tafsir, (30 Vols) Cairo, 1373/1954, Vol. 22, p. 11.
(130) Risäla, p. 443.
(131) Q. 2,129,151; Q. 3,164; Q. 33,34; Q. 62,2.
(132) Risäla, pp. 78,93,103; Jimac al-calm, p. 274.
(133) Ibtäl al-Istihsän, p. 229; Risäla, pp. 88,103.
(134) Jimäc al-cilm, loc. cit.
(135) Ibid.
(136) Q. 2,251. " ll 1LJ I alll obI ýýI JJ
-S-, ja, yJl:!.
(137) Q. 31,12. e 11 vui L., ^ iJ
41- ,I.. 3
(138) Risäla, p. 109.

(139) Ikhtiläf Malik, p. 191.

Chapter Four: The principles of abrogation.

(1) Q ä, y.
Risäla, p. 106.4U ß
(2) Ibid.
(3) Ibn Hazm, Ihkäm fi usul al-ahkäm, (8 Vols) Cairo, 1380/1960,
*
Vol. 4, p. 478.
(4) Risäla, p. 107.
(5) Ghazzäli, Mustasfa, (2 Vols) Büläq, 1322/1904, Vol. 2, p. 125.
cf. Tabari, Tafsir, on Q. 2,106.
(6) Text, p. 152.
(7) Burton, The Collection of the Qur'än, p. 52; Risäla, p. 106.
(8) Risäla, pp. 108-9.
(9) Text, pp. 139-40.
(10) Risäla, p. 110.
(11) Ibid. pp. 111-12.
,
(12) Ibid. pp. 114-5; Umm, Vol. 1, p. 68.
,
 -224-

(13) Ibid., p. 116.

(14) Text, p. 140.
(15) al-Ictibä, p. 50.
(16) See above pp. 57-8.
(17) Risäla, p. 138.
(18) This subject is discussed in the following chapter.
(19) Umm, Vol. 2, p. 68; Vol. 1, pp. 123-24.

(20) Ikhtilaf al-Hadith, p. 497.

(21) See above p. 39; Umm, Vol. 5, p. 133.
(22) Ibn Hazm, op. cit. , Vol. 4, p. 459; Sarakhsi, Usul, Vol. 2, p. 12.
(23) Tabari, o . cit. , passim.
(24) Usul, loc. cit.
(25) Jassäs, Ahkäm, Vol. 2, p. 598.
(26) Ibid.
(27) Ibid.
(28) Text, pp. 79-83.
(29) Ictibär, p. 10.
(30) op. cit. , p. 70. He confines this idea to the reports of the
Prophet.
(31) op. cit., loc. cit.
(32) cf. Tabari, Tafsir, on Q. 2,106.
(33) Ibtäl al-Istihsän, p. 301; cf. Shahrastäni, op. cit. , Vol. 1,
p. 348.
(34) Abu- cAbd Allah Muhammad b. Hazm, K. al-nas ikh wa-l-mansukh,
published on the margin of Tafsir al-Jalälain, Cairo, 1308/1890,
p. 133. The translation is from J. Burton, al-L¬sikh wa-i
mansukh, Ph. D. thesis presented to the S. O. A. S., University
of London, 1970, p. 46.
(35) Burton, al Näsikh wa-1 mansukh, p. 47.
(36) Ictibär, p. 6.
(37) Suyuti, Itgan, (2 Vols) Cairo, 1370/1951, Vol. 1, p. 12.
Sarakhsi, Ustil, Vol. 2, pp. 20-21.
(38) Risa la, p. 128.
(39) Text, pp. 73-4.
(40) op. cit., Vol. 4, p. 462.

(41) Risäla, pp. 235-38; Ikhtiläf al-Radith, p. 532.

 -225-

(42) Text, p. 81.

(43) Ictibä p. 135.
(44) Risäla, p. 106, ; Umm, Vol. 7, p. 84.
t,
(45) Ghazzali, op. cit. , Vol. 1, p. 110; Text, p. 10.
(46) Text, pp. 22,80.
(47) cf. Q. 75,36; Burton, al-Nasikh wa-1 mansükh, p. 73.
(48) Risäla, pp. 121,220.
(49) See below, p. 100-
(50) Text, p. 20.
(51) Ibid. P. 79.
,
(52) Nah has, op. cit., p. 13; cf. Makki, op. cit., p. 109.
.
(53) Ibid.
(54) Isfarä'ini, al-Näsikh wa-l-mansukh, Chester Beatty Library,
Dublin, MS. No. 5246 (2), fo. 77.
(55) Ibid.
(56) Näsikh, p. 15, Tabari, op. cit., Vol. 3, p. 174.

(57) op. cit., P-111.

(58) Qurtubi, op. cit., Vol. 2, p. 66; Text, p. 125.
(59) Risala, p. 121.
(60) op. cit., p. 13.
(61) Ibid.
,
(62) Näsikh, p. 16.
(63) Ämidi, Ihkäm fi us-ul al-ahkam, (3 Vols) Cairo, 1332/1913,
Vol. 3, p. 166.
(64) Ghazzäli, op. cit., Vol. 1, p. 111; Sarakhsi, Usul, Vol. 2, p. 99.
(65) Ahkäm, Vol. 1, p. 157; Sarakhs i, op. cit. loc. cit.
,
(66) Qurtubi, op. cit., Vol. 6, p. 75.
(67) Text, p. 16; see below p. 203.
(68) Ibid, pp. 4-5. Marie Bernand, op. cit., p. 630.
(69) Nasikh, pp. 3-4.
(70) Ibid., p. S.
(71) op. cit., p. 4.
(72) op. cit., fo. 70.
(73) According to the following version the Mosque was in Kufa.
(74) Näsikh, loc. cit.
 -226-

(75) Ictibär, p. 6; Ibn jawzi uses the word " AL .3 instead of

.
bi Akaf ahl al-Rasükh calm
it ", see al-Musaffä min al-
nasikh wa-1 mansükh, ed. Hatim Salih al-Dämin, al-Mawrid
A. S. Library, Per, 8f., 286846, 195-216. (1977)
in S. O. pp.
(76) Näsikh, loc. cit.
(77) Ibn Khuzaima, al-Müjaz fi al-näsikh wa-1 mansükh, printed
in the same volume with Nai läs' al-Näsikh wa-1 mansukh,
pp. 25-60.
(78) Ibn Hajar, Fath al-Bäri (17 Vols) Cairo, 1378/1959, Vol. 9, p. 233.
(79) Bukhäri, Sahih, (9 Vols) Cairo, 1377/1957, Vol. 6, on Q. 2,106.
(80) Hindi, Kanz, (12 Vols) Haiderabäd, 1365/1945, Vol. 2, p. 359.
(81) op . cit., fo. 70; Zarkashi, o . cit. , Vol. 2, p. 29.
(82) op. cit. , p. 260.
(83) Ictibär, loc. cit.
(84) op. cit., p. 4.
(85) Nasikh, p. 6.
(86) Text, pp. 124,145.
(87) Risäla, pp. 108-10.
(88) Ictibär, pp. 24-5; Burton, Näsikh, p. 93.
(89) jassäs, however, does not record these ahädith.
(90) Text, p. 124.
(91) jimac al-cilm, passim; Ibn Qutaiba, o . cit. passim.
,
(92) Näsikh, loc. cit.
(93) Ibid, p. 4; Ibn jawzi, o. Cit. , p. 198.
(94) op. cit., pp. 56-7.
(95) Text, pp. 6-7.
(96) op. cit., Vol. 1, p. 107.
(97) Tafsir, ed. Shakir, Vol. 2, p. 472.
(98) Qurtubi, op. cit., Vol. 2, p. 62.
(99) Tafsir, ed. Shäkir, Vol. 8, p. 12.
(100) Text, p. 68.
(101) Muwatta', Vol. 1, p. 294; Ictibar, p. 39.
(102) This doctrine is attributed to ibn cAbbäs.

(103) Text, p. 70.

(104) See below, p. 163.
 -227-

(105) Text, p. 165.

(106) Nahhas, op. cit., p. 121.
(107) Umm, Vol. 8, p. 2.

(108) Text, p. 74; Ahkäm, Vol. 2, p. 408.

Chapter Five: The abrogation of the ruling but not of the wording.

(1) The Collection of the Qur'än, p. 46.

(2) Rlsäla, p. 138.
(3) Text, p. 165; Ahkam, Vol. 1, p. 193.
(4) Tabari, Tafsir, ed. Shäkir, Vol. 3, p. 385.

(5) Ibid.
(6) Umm, Vol. 4, p. 72. Shahrastani lists Täwüs (d. 101 A. H. )
under the rubric op. cit'. , pp. 319,326.
(7) Ahkam, loc. cit.
(8) Ibid.
(9) Muwatta', Vol. 2, p. 765.
(10) Tafsir, Vol. 5, p. 62; M. Khudari, o . cit., p. 263.
(11) Risäla, pp. 137-38.
(12) Ibid. p. 139; al-Wagidi, K. al Maghäzi, (3 Vols) London,
1386/1966, Vol. 2, P. 836.
(13) Risäla, p. 139.
(14) Umm, Vol. 4, p. 99.

(15) Tabari, Tafsir, ed. Shäkir, Vol. 3, pp. 388-89.

(16) Risäla, p. 145; According to Schacht this tradition dates from
the second century, The origins, p. 202; cf. Coulson, op. cit.,
pp. 67-70.
(17) Ahkäm, Vol. 1, p. 194.
(18) CUthmän, op. cit., p. 51.
(19) Makki, op. cit., p. 120.
(20) Tafsir, loc. cit.
(21) Tafsir, Vol. 2, p. 263.
(22) Umm, Vol. 4, p. 113.

(23) The hadith was designed to establish that this was the final
decision of the Prophet.
(24) Text, p. 166.
 -228-

(25) Ibid., p. 165; Ahkäm, Vol. 1, p. 190.

(26) Ibid. p. 168.

,
(27) us L Vol. 2, p. 69.
(28) Nahhas, Näsikh, p. 74.
(29) Tabari, Tafsir, ed. Shakir, Vol. 5, p. 256.
(30) Ahkäm, Vol. 1, pp. 490-91.
(31) See above pp. 111-2.
(32) Umm, Vol. 5, p. 223.
(33) cf. J. Burton, Nas ikh, p. 165.
(34) Nahhäs, Näsikh, loc. cit.
(35) Qurtubi, op. cit., Vol. 3, p. 224.
(36) Ahkäm, Vol. 1, p. 491.
(37) Qurtubi, op. cit. , Vol. 3, p. 174. Also see Burton, Nas ikh, p. 143.
(38) Nä sikh, p. 75.
(39) The hadith conflict was harmonised.
(40) Tafsir, ed. Shakir, Vol. 5, p. 81; for translation cf. Burton
Näsikh, p. 146.
(41) Umm, Vol. 5, p. 230.
(42) Ahem, Vol. 1, p. 497.
(43) Nahhäs, Näsikh, p. 77. l... eJ19 AW
3 (.X; a>JI
Lp; o JI I 1 i k-I IL-, L- I ß:l.! 3
9: ask cI)3; --Jl ý. ýt:.. -. t>j it's
(44) Umm, loc. cit. "Iý,.
(45) Ahkäm, Vol. 1, p. 498.
(46) Qurtubi, op. cit. , Vol. 3, p. 183.
(47) Ahkäm, Vol. 1, p. 493.
(48) Umm, Vol. 5, p. 216.
(49) Ahkäm, Vol. 3, p. 563.
(50) This doctrine is attributed to Mahdawi (Qurtubi, op. cit., Vol. 3,
p. 174).
(51) Shafici says: "She is allowed to re-marry as soon as she gives
birth but her husband is not allowed to assume sexual relations
until she is completely purified. " (LJmm, Vol. 5, p. 244).
(52) Ahkam, Vol. 1, p. 492; Sarakhsi, Maw Vol. 6, p. 31; us 1
al- assns, fo. 72.
(53) Ibid; Umm, Vol. 5, p. 224.
 -229-

(54) Burton, al-Näsikh wa-1 mansukh, p. 153.

(55) Ahkäm, Vol. 3, p. 558.
(56) Umm, Vol. 5, pp. 226-27.
(57) Ibid.
(58) Mabsut, Vol. 6, p. 32.
(59) Umm, Vol. 5, p. 235.
(60) Ahkäm, Vol. 1, p. 498.
(61) Ibid.
(62) Näsikh, p. 78.
(63) Tafsir, ed. Shakir, Vol. 5, p. 225.
(64) Ibn al-cArabi, Ahkam al-Qur'än, (4 Vols) Cairo, 1376/1957,
Vol. 1, p. 207.
(65) Tabari, Tafsir, ed. Shakir, Vol. 5, p. 258.

(66) Qurtubi admits that the report from Mujahid quoted by Tabari is
sound and confirmed. afsir, Vol. 3, p. 227).

(67) M. CAbduh, al-Acmal al-Kämila, (4 Vols) Beirut, 1972, Vol. 4,

p. 6 89.

Chapter Six: The abrogation of the wording but not of the ruling.

(1) Q. 5,89.
(2) Text, p. 51.
(3) Tabari, Tafsir, Vol. 7, p. 30.
(4) Ibid.
(5) Text, pp. 51-54.
(6) t. iil, Vol. 2, p. 81.
(7) Tafs ir, loc. cit.
(8) Umm, Vol. 2, p. 103.
(9) Ibid., Vol. 8, p. 293.
(10) Ibid., cf. Ghazzäli, op. cit., Vol. 1, p. 102.
(11) Q. 58,3-4. äSj i ly.!h U )3, Ilk, ill
y.-'+., u. t &, tºf-`l. x% .
-,,
a gi
a,, s, fD 3L6:;,, Je ý:,"
,:,:_., .Z t1.
(12) 4,92.
. ä.aw. %yä:. `g. ä. sL1. l:. `.
"r... ý%. 'ý 4ý E:r ,
(, ýýJ ¢+
Umm, Vol. 5, p. 280. '''' rº
ý: ! c:ýr+ý-; ,º,. ý,.:; ýl., rý
 -230-

(13) See above pp. 33-4.

(14) Text, p. 63; cf. Ibn Hazm, op. cit., Vol. 4, p. 441.
(15) cf. Tabari, Tafsir, ed. Shakir, on Q. 5,14; Q. 5,41-44.

(16) Malik, op. cit. , Vol. 2, p. 819; ibn Hajar, op. cit. , Vol. 15,
pp. 174,188.
(17) Ibid., p. 823; cf. Baihagi, Sunan, (10 Vols), Haiderabäd,
1344/1925, Vol. 8, p. 211.
(18) Tabari, Tafsir, ed. Shakir, Vol. 10, pp. 329-30.
(19) Ibid; According to Shäfici, v. 42 was not abrogated. See Umm,
Vol. 7, p. 42.
(20) Ibid.
(21) Text, p. 83.
(22) Tabari, Tafsir, ed. Shakir, Vol. 10, pp. 329-32.

(23) Malik, op. cit., loc. cit; IbnHajar, op. cit., Vol. 15, p. 182.

(24) Tabari, Tafsir, ed. Shakir, Vol. 10, p. 328.

(25) Ibid., p. 303; For translation see Burton, Nasikh, p. 216.

(26) For the meaning of ihs n consult J. Burton, "The meaning of Ihs n" .
J. S. S. 1974, p. 47.
(27) Tabari, Tafstr, ed. Shakir, Vol. 10, p. 310.

(28) Ibid. p. 304.

,
(29) cf. Suyuti, op. cit., Vol. 2, pp. 26-7.
(30) Tabari, Tafsir, ed. Shakir, Vol. 10, p. 312; Burton, Näsikh, p. 218.
(31) Ibid., p. 338.
(32) Muwattta', Vol. 2, p. 824.

(33) Baihagi, op. cit., Vol. 8, p. 211.

(34) Ibid. In this version the words " L;; $3" are missing.
,
(35) Ahkam, Vol. 3, pp. 317-8; For Abu Yusufsdoctrine see Sarakhsi,
usul, Vol. 2, p. 100.
(36) See below p. 163.
(37) Text, p. 56; Also see Zarkashi, op. cit., Vol. 2, p. 36.
(38) Ibid. p. 58.
,
(39) For translation of the verse see above p. 104.
(40) Ahkam, Vol. 2, pp. 128-29.

(41) Risala, p. 247.

(42) Ahkam, Vol. 2, p. 130.
 -231-

(43) Text, p. 20; Ahakam, Vol. 3, p. 314.

(44) See above pp. 104-5.

(45) Text, pp. 161-62.
(46) Tafsir, Vol. 9, p. 232.
(47) Usül, Vol. 2, p. 71.

(48) Text, loc. cit.

(49) Ahkäm, Vol. 3, p. 315.

(50) Text, p. 145.

(51) Ibid. p. 75; Ahkäm, Vol. 3, p. 316.
,
(52) See above p. 148.
(53) See below p. 172.
(54) Risäla, pp. 128-32; Burton, Nasikh, p. 232.
(55) cf. Q. 4,80.
(56) See above pp. 52-53.
(57) Umm, Vol. 7, p. 83.
(58) Ibid.
(59) Razi, op. cit. Vol. 9, p. 231,* cf. Baidäwi, Tafsir, Cairo,
,
1305/1887, p. 116.
(60) Baidawi, op. cit., loc. cit.
(61) Risala, p. 250.
(62) Ibn Hajar, op. ci ., Vol. 15, pp. 141,147,148" cf. Ibn Hazm,
cit. Vol. 2, p. 191. Iý.. z1,. iýo )b ý" y
op. , t:.!.Jj sc
(63) Risala, p. 246.
(6 4) Ibid. p. 250.
,
Umm, loc.
(65) cit.
(66) Risala, p. 247.
(67) The origins p. 15.

(68) See above pp. 61,114.

(69) Text, p. 162.
(70) Risala, p. 129.
(71) Ibid. p. 132.
,
(72) Ibid. pp. 64-67. Also see, Burton, Näsikh, p. 251.
,
(73) The same example is provided by jassas for the takhsis of the
Qur'dn by the sunna, see Usui alýjassas, fo. 20 (unedited portion).
(74) Ikhtilaf a1-Hadith, p. 533.
 -232-

(75) Ibn Hajar, op. cit. , Vol. 15, p. 127.

(76) Muwatttaa', Vol. 2, p. 824.
(77) Ibn Hajar, op. cit. , Vol. 15, pp. 130,170.

(78) Nasikh, p. 255.

(79) Tabari, Tafsir, ed. Shakir, Vol. 8, pp. 76-7.

(80) Text, p. 163.

(81) Umm, loc. cit.
(82) Tafsir, ed. Shakir, Vol. 8, p. 80.
(83) Ibn Hajar, o . cit. , Vol. 15, pp. 130,181.

(84) Jimäc al-cilm, p. 274.

(85) Ikhtilaf al-Hadith, loc. cit.
(86) Umm, Vol. 7, p. 163.
(87) Ibid., "The Book" here means Q. 24,2.
(88) Ibn Hajar, op. cit., Vol. 15, p. 129.
Ibn f-iazm follows this doctrine, op. cit. , Vol. 2, p. 191.
(89) Itgan, Vol. 1, p. 58; cf. p. 60.
(90) ibn al-cArabi, op. cit., Vol. 1, p. 361.
(91) See above pp. 33,143; Burton, Nasikh, p. 287; The Collection,
p. 86.
(92) Naskh: bayän lil azmän; takhsis: lil acyan.
_bayän
(93) That the Jews came to consult the Prophet was also a doctrine
of Zuhri. See Tabari, op. cit., ed. Shäkir, Vol. 10, pp. 303,325.

(94) Muwatta', Vol. 2, p. 819; Sarakhsi, Ussül, Vol. 2, p. 100;

Burton, Nasikh, p. 300; Usül al-Lassa s, fo. 159 (unedited portion).

Chapter Seven: The abrogation of both the ruling and the wording.

(1) Text, p. 54.

(2) A.hkäm, Vol. 1, p. 67.
(3) Qurtubi, op. cit. , Vol. 20, p. 19; cf. Text, p. 55.
"
(4) IbnHajar, op. cit. , Vol. 2, p. 50.
(5) Text, loc. cit.
(6) Razi, op. cit. , Vol. 31, p. 141.

(7) Ibid.
(8) Ibid.
 -233-

(9) Ibid.
(10) Abü Hayyän, al-Bahr al-Muhit, (8 Vols) 1969, Riyäd, Vol. 8,
459.
p.
(11) Razi, op. cit., loc. cit.
(12) Suyüti, op. cit., Vol. 2, p. 26.
(13) Hibat Allah, op. cit., p. 5; Ibn al-Barizi, Näsikh al-Qur'an,
Beirut, 1983, p. 19.
(14) Suyuti, al-Durr al-Manthür, (6 Vols) n. d. Bulaq, Vol. 1, p. 104.
(15) Tabari, op. cit., ed. Shakir, Vol. 2, p. 474.
(16) Abü-Hayyän, op. cit., Vol. 8, p. 458.
(17) For all these interpretations, consult, Tabari, op. cit., loc. cit.
(18) Bukhari, op. cit., Vol. 6, pp. 331,333.

(19) Tafsir, loc. cit.

(20) Razi, op. cit., loc. cit.
(21) Ibid.
(22) J. Burton, "The interpretation of Q. 87,6-7 and the theories of
naskh", Der Islam, August 1985, p. 12.
(23) Ibid. p. 19.
,

Chapter Eight: jassäs' concept of naskh.

(1) Text, p. 145.

(2) Ibid., p. 124.
(3) Risäla, p. 106.
(4) Text, loc. cit.
(5) Ibid, p. 19; cf. M. Zaid, op. cit., Vol. 1, p. 62.
(6) Sarakhsi, Us u1, Vol. 2, p. 54; cf. Räzi, op. cit. , on Q. 2,106.
(7) Text, pp. 1-4.
(8) cf. Tabari, Tafsir, ed. Shakir, on Q. 2,106.
(9) cf. Razi, op. cit. , on Q. 2,106.
(10) Text, loc. cit.
(11) Ibid.
(12) Ahkäm, Vol. 1, p. 67; For Abu Muslim al-Isfahäni's view, see
Nür al-Dä'im, The charge of Shicism against Tabari, Ph. D.
thesis presented to the University of Edinburgh, 1969, p. 115.
 -234-

(13) Text, p. 16; For Shica views on the doctrine of Bach', see
al-Khü'i, al-Bayän fi Tafsir al-Qur'än, al-Najf, 1966, p. 409.
(14) Text, p. 18; Also see Abu-l-Macali, Usü1 al-figh, 2 Vols,
Qatar, 1979, Vol. 2, p. 1302.
(15) Ibid. p. 14.
,
(16) Ahkäm, loc. cit.
(17) Text, p. 51.
(18) Makki, op. cit., p. 54.
(19) Tafsir, ed. Shäkir, Vol. 2, p. 478; Burton, "The exegesis of
Q. 2,106 and the Islamic theories of naskh", Bulletin of the
School of Oriental and African Studies, University of London,
Vol. XLVIII, part 3,1985, p. 469.
(20) Tafsir, ed. Shakir, Vol. 2, p. 479; cf. above p. 194.
(21) Text, p. 56. According to some, the first report was abrogated by
Q. 3,169.
(22) Ibid.
(23) Ibid. p. 63.
,
(24) J. Burton, "Those are the high-flying cranes, " J. S. S. XV, 2,
,
1970, p. 251.
(25) Tafsir, ed. Shäkir, Vol. 8, p. 86.
(26) Ibid., Vol. 2, p. 472; Also see above p. 103.
(27) Text, p. 150; Also see ibn Hazm, op. cit., Vol. 4, p. 477.

(28) Ibid.
(29) Tafsir, Vol. 2, pp. 65-66.
(30) Tafsir, on Q. 2,106.
(31) cf. Ikhtilaf al-Hadith, p. 533.
(32) Ghazzäli, op. cit., Vol. 1, p. 124.
(33) Text, p. 125.
(34) Ibid. p. 128.
,
(35) Ibid. p. 136.
,
(36) Risäla, p. 110; For Shäfici's theory of naskh, see above, p. 57.
(37) Ibid., pp. 107,122.
 -235-

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 PAGE
NUMBERING
AS ORIGINAL
 (I)

NOTES

TAE FOLLO; "1ING NOTES ARE ARRANGED ACCORDING TO THE TOPICS OF THE TEXT.
i..; J IäLjr ; liJ Ij

(I) Usü1 al-figh, (2 Vols) Haiderabad, 1372/1952,

al-Sarakhsi,
Vol. 2, p"53.

I iIIx., 1,51( J; l'ýJI Jij Jyö

rý I uc ä, l, c
"tý, oyý ýJ ,, , bye v, ct. ý,,,,; : v, t
" a;. uý II ICJi
,,.. _:
JI,.
ý.; P.
S
ýýS
ý.
J Uý
,yI cc äý l. c ,
eta
14=ß-w%

" I;
t_y_J Iui: JLYITL. r ä1IýyI ýc ä, I.ý rsa : J
r-ýJs9ýr ,ý-ý'-:
" äi. ß. 11 tý.,. Uý JS
It seems that al-Sarakhsi has borrowed this statement from

al-Jassas.
(2) al-Sarakhsi, op. cit. cit.
yloc.
Ji: JIu is
L..; 1 IL9 (7ý,,. `J
, -- LJ cý9Ii: .iIaJIc, j,
yi
ýU-, L$; .gis, ", yiy,.. ý I ,ýý: i º,, ý
IItcyf.:. It. UI c.. 1, a.:.., JI .
.3IJIL.; L, yA
, ts
bJ II I ý;.. wJ l
.ýIJ., . a.

See va.kki, al-Idah li nasikh al-Qur'an wa mansukhihi, al-Riyad,

1369/1976, P"41-
Cf. Räzi., (32 Vols) Tehran, n. d., Vol. 3,
al-Tafsir al-Kabir,

P1226"
can Ta'wil äy a1-Qur'än, (15 Vols
Cf. Tabari, Jämio al-Bayä. n
to date) Cairo, 1380/1960, Vol. 2, p. 471.
Cf. Amid-il Ih- kam fi Usül (3 Vols) Cairo, 1332/1913,
a1-ahkam,
Vol. 3, p. 160.

(3) al-Sarakhsi, op. cit., loc. cit.

L. a. y
ý,ý--+ ý9 rS1y: a ý.w ýº ý _,
äJ I; YI JI Qäýs> cý >S J9Y1 lI: `1 ý,, jIaý.. l' JIv IS. 1I
,r;. ?ý`c r'?" cs':"= ,

Cf. R; Zi! o . city 1oc. cit.

(4) Q"45,29.
 (2)

(5) al-Sarakhsi, o . cit., loc. cit.

b,yI t-...1Iäý
J L. uiS 3är J, J6-. - 4j L Li J t1L,yI kirJ `U iS
v9i L. . .
l.. L'5,1: I) la., a1yiý. L; yi l (a., al! II.
gi ý`! .i csý

And see- Suyuti, Itaan fi: cUlum'a1-Qur'; (2 Vols) 'Cairo,

" n,
1370/19519 Vol. 2, p. 2o.
Cf. Nahb s, al-Näsikh wa-1 amansu-kh, Cairo, n. d., p. 8.

(6) (4 V ols)
al-Nasafi, Tafsir, Cairo, 1385/1966, Vol. I, p. 63.

See M. Zaid, al-Naskh fi-1 Qur'an al-Karim, (2 V ols) Cairo,

1383/1963, Vol. I, pp. 82-3.

La'J I u9f cc Lvß' cj lc: l;.

a.: ýr I a,;yJ(
r,..,, ,WIa; c
v--+ I
ý+s%r'ý" .ý:? aa,, uY Lei Jt

l..
tr''
Cfi
(7) See p. 49 note. 9.

(8) Ahkam al-Qur'an, (3 Vols) Cairo, 1347/1928,

al-Jassas,
Vol. I, p. 67.

1J
a. 1jjI a.y1 tsa vom? l j Li , äJI &J1 j. t; j6
. .ýi eo
?-3 C' 1." `. lr a; Lº J9, Jl*ve j. !+L. s1 (u Umv.Ji j4 l.. I
ý, a1J
4%IuJli (vs l. S L1 .
9ýa sa3 a.. r,: t) : aJý;., r" J1
ýs'
wJI ý1b i U.. 1.11
aß. 1. 15 t. ", 1I
ý, ý. ýy ýs a: @ J,; v sa.., +U
J' I

From this statement it is clear that Jassas acknowledp: es only

two modes of naskh i. e. naskh al-hukm duna al-tilawa and naskh
al-tiläwa düna al-hukm. Cf. Text) P-54; Introduction, p. 189.
Cf. QurJubi, al-Jämi0 li a1 käm al-Qur'än, (20 Vols) Cairo,
1373/1954, Vol. 2, p. 62.

(9) a. 2, IO6.
 (3)
ýYý y l" ate-,-% i9' JIý.. L

(I) Sacid Allah 4?

a,diý Principles of Muslim Jurisprudence, (chapters

on Qiyas and Ijtihad by al-Jassas) Lahore, 1981, P"93.

k. l1 I. J IvI
,, 'tr' ". !!. ý:r+:" ý1-,ý: ,IJl..
aJ l> I t. 1.. Ji
.ýý" ý!., ýJ t,; c "
"e it----- ; ,ýsr-' L I..ý: YIý,..:. Ji
!. ýJ..,, 4s :.5 I ',jLo J, JI
.rý^"
(2) Said Alläh Qädi, o . cit., loc. cit.

C'-@JLý ( LSl*-I S L.. c11ý,

ý.; ýý "ý t I
ýi ; 4 ?"' "j
" J,y_._.'sý..!i_ýý, tý.;.ä.J I ý,; t.,.,, ý... iý1Iý rý.
I (y.: ) Jý,,, ý.i:.:, a.Sý.
.ý1. .: .c
(3) Sacid Allah ^ op. cit. 9 loc. cit.
"di,

(4) SaSid Allah: Qadi, "op. cit., loc. cit.

o Y14; L,, 1y L
" Ls-'-! L=4 t...,.:
,ý
1c c; +! I wem-, cr. aJLa-a::..
ý L `.
LXýJ si . .
l; lc a>l. 1, I 6c L'bj <, 1I
y. ýI ýýýiº,.. ýI
And see Jassäs, o . cit., Vö1.2, PP-3400-
(5) The old name of the three days following the day of immolation
(I0th of dhul hijja) during the 42, a festival.

See M. Cowan, Arabic English Dictionary, 3rd edition, New York,

1976, p. 468.
(6) Cf. Tabari, op. cit., loc. cit.
And cf. Nahhäs, op. cit., p. IO.

(7) See p. 14, note-

3-And see al-Sarakhsi, op. cit., Vol. 2, p. 58.

t-; t Xvc.; 4. º 31 Jl"'

! cJ"j - VL

(3) o Vol. 2, p. 59.

al-Sarakhsi, . cit.,

I 19? Jj'J 1
`"'"`J `: Ji5
I 1
ä11a..yI iss )I =
"=I .ir. .! ,
 (4)

(9) Bads. ', appearance; In the dogmatic sense, the intervention

of new circumstances which bring about the alteration of an

earlier Divine determination.

E. I. London, 1927-609 Vol. I, P-550-

Cf. M. Zaid, op. cit., Vol. I, p. 20.
And cf. Nahhäs, o . cit., p. II.
00
(IO) Q.5, zoz.
(II) Q. 29284.

(z2) Q.13j39"

(13) The mother of the book is the original copy of the Qur'an

which exists with God in Heaven.

See BaidEwi, Anwar al-Tanzil, Cairo, 1305/1387, P"334.

" The original of the Qur'an is thought of as a book preserved

in the seventh Heaven in the presence of God. This is assumed
to be what is by the preserved tablet (lawh
meant mahflzz)
spoken of in LXXX, 22. Sometimes it is thought of as having

been sent down to the nearest Heaven on the night of power,

lailat al-aadar, described in XCVII, so as to be available for

revelation to the Prophet by the angel Gabriel. "

See Bell R., Introduction to the Qur'an Edinburgh, 1953, P"37.

, ,

And see Khaddnri, Muhammad, Usü1 (Shafiei's Risäla),

al-figh
"
Baltimore, 1961, p. 124.

(14) Qurtubi, o . cit., Vol. 9, p. 331.

Tabari, op. cit., second edition, Cairo, I373/1954, Vols. 13-5,
.

p. 169.

ccä. L. . ' L.. &U I c l: '. v.. l"s c J I ; a>

s: "j6t CJ ,. `J `s,: L:; .
1. V dU lJ jk cu l}J I C,. - J6 (' Ut 6 .LUt. to, I-
-
`

!U3 Js
ý., uI
 (5)

(15) Tabari, o . cit., loc. cit.

) '' JG: J6
Y..,.,,,._, 4J, gis'

cL 4JI
"Jy,, y C_.bvl rl a.z,ý, ) : JL
(16) See ibn Kathir, Tafsir al-Qur'an, (4 Vols) Cairo, 1370/
1950, Vol. 2, p. 520.

IsU. JE", L-.

%, L U I
.;r att. u.: 4.

And see Tabarl, op. cit., loc. cit.

JI-i

(I) See Text, p. 26.

(2) See Muhammad al-Khudari, Usu1 al-fish, Cairo, 1329/1911,

pp. 309-10.

s
pL Lii
LiJ I I
n. LJ rx c.sJ
is LYI I
--

zt. ` Iý. 1. ya L.: I a.Jc J IaC: ý,

ý cs]c ý ...; _I1
s"'W1 lS 4-s:a. 11ä.: I l-ß. 1 aSJI L 4; Yo L' j
.4`: t:ý. J,,

J.ýY Iv1 31 u L.*' 1:.

-.. &. J 13 a..; LJI y% LW I lam.
o x. l`.
. .) *% 3W uk
JO I
Jam.; 1d: is ý: ': L"JI I
ýs-s 1.. `s., L; ýY ý.. a. LO
J'Y6 ýy: J II isa i ;.,..:
.
"ý.,*_ 11ä.,,,
x,a,. 4ijIa. -J L

(3) See Abi-l-Ma°ä1i °Abdul Malik ibn CAbd Allah b. Yusuf

Usiz1 al-figh, (2 Vols) Qatar, 1399/1979, Vol. 2, p. 1302.

l;w.: I,.
4e -L; yca, 'J t 6.,,, lS
u yJ c
j- j. -) co cyzJILuI
uI Ali !J3 ` 1 au 3 19: -,1 J 1
1j Lc , 5 rý,, 4.6
0 11: I5 1 05 J J 1 YIvk 11,1.7-
L14' Ls-s `11 t'om' 51W. L9611 x1..; .,.
 (6)

(I) al-Sarakhsi, on. cit., Vol. 2, p. 54"

ý1--, ": ý5,iJ I J IiJ,: l-ý- t j I1 (,,,,..1Iss ä,,

l l
L. S.; .-; ßy,.. Asa , ý..,;
': J1J. J, 4: Lr6
urn yuI ýrý 1
1 /L Jy
yJ
ý..,. L, :J1
J6 ljý
Le

. t_ gig'.,, y 4; 1
,N11
Amidiý op. cit., Vol. 3, p. 166.
Rzi, op. cit., loc. cit.
For detail see M. Zaid, op. cit., Vol-I, pp. 26-52.
,,

(2) ibn Kathir, o . cit., Vol. I, pp. 150-51.

;%,.,
Cjj*)L
U- ý," 4. ,`l; ý,. ate U-. 1.5ry, J> I$i ýr I rý
, ., W -e .
L. j-9 `1-» `lam
ý.. r 9` ýr 9r v
iJ I
.
9

(3) Isfarä'z. ni, al-Näsikh wa-1 mansnkh, Chester Beatty Library,

Dublin, MS, No. 5246(2), fo. 72.

JP; co I Is? J. aJ 16 is
'f-O - Lr6 -J

J t. ýýJ _.I L',:..

I J
ýl.,. I Qý.
lc
_. ý: r cswjo CW
"t_. raýSj
ibn Kathir, op. cit., loc. cit.

al-Razi, op. cit., loc. cit.

Fath al-Qadir, (5 Vols) Cairo, 1349/1930,
a1-Shawkani,
"
Vol. I, p. I08.

(4) See p. 5, note 3.

(5) Q.2, I06.

(6) Q. 16, IOI.

(7) Q. 13,39-

(8) Q-5948-
(9) Q. 3,50.
 (7)

(10) Ibid.

(II) Q. 4,160.

(12) Q. 2,144"

(13) Q. 2,142.

(14) Nahhas, op. cit., PP. 13-4.

;JLäy La.. L",:a> J Ii I, I L- j- jüL

CJ ,.
ij I Cy- J- ,f I
d-u ý-.. %1. J, Iv Lei j 6, is äß,1J, I
-- ,I "c Le o.
is ä;.,aJ IjIý,. U lJ Js 11",
L I J-1--i I W. 3 1..;
ä. J I
, ,4
1.1.,., aU &U C.
) 3
Ll I 1I
aß. L*=,a.U I a1.II LA
I

.iý,. yrJ ,ý. ý . .:.".; UJ

_AS

du 19 it I
4-6 4u L1.,ß iu
I
1;
I
°1J ,c ak lSs 11.,. J ark s,ýr ä1ý+ J.,. I
r. ý, , aJc aU LL
4Jpa (`l-J I º II I
" L1 `. LJL., aU ýJ
ýa 1!9 L) I, J6, Jgýr. JI ýl.I .ir. ý..L:ý Li
61,,ß...i i9 LJ i *.u) dui J;; 6 (Li P it uI
JII. J I a.W I 1J- 1.,)" lam, Jlý (all I aý
ý" *-ºý I-Jp :5L; ýJ ,

Tabari also records this report ( op. cit., Vol. 2, p. 52I

U5) Q-4915-6. (L 15-- liJ I ;, LC-S;xJ I )

(I6) Q. 2412.

(ii) Q"29240.

(I8) Q. 2,234.

(19) Gha7zali, Musta. sfa, (2 Vols) Buläq, 1324/1906, Vol. I, p. II2.

ä. L ýf ö lsgJI JI I l.. _.J Ei I
r. f.. ,! a..,
ß pý va, 1"" "% ý. -, s°ti ^' JJ
lc 11.
a_. aU -, 111° J9-ýrl I I-2.9
ä-4J 1 ; >, f__; a,ý. (ää a.. I9 i) I.
_,. ; , 1S 1r
u, . .;r,_ .JL, - J ý, r,>
" (ý I, I J I bam ý-ý---y J9ý) ý'ý- J9'ß ae- S1ß, 1r
ýJ ,,,.... , csý iwJ I `ý, t:, c
s1 .

For naskh in the sunna:

See al-Hamadhäni, a1-Ictibär, Hims, 1386/1960.

(20) Ghazzäli, op. cit., loc. cit.

 (8)

ý; ý
a:ý. ý; y.ý lam,%J I ý,..; ýL
ý.

(I) Isfara'ini, op. cit., loc. cit.

gz l" crliI iý ý!; k 1(a.-, all I `, LS

't jLý.. ß.
J9
" .ý L--* -..
JI LS a:,. ý.sý>I ya LjI
rS, !: °J bi I
r,, ji 19

.nt.. tI1. I J. dl;,. J I pd +a `J U I[ý

r ý. ,,J )tý. y
ibn Hazm, Ihkam fi Usul al-ahkam, (8 Vols) Cairo, 1380/
1960, Vol. 4, P"446.
Qurtubi, op. cit., Vol-I, p. 65.

(2) al-Sarakhsi, OP-Cit., Vo1.2, p. 62.

(3ý Ghazzali, op. cit., Vol. I, p. 120

1- LS1
-<
m4
(4) al-Sarakhsi, op. cit., loc. cit.
ä.,Lyc 1 .
1 L, 1I 1;
+J Jp n? ya JLJ ä, ýi;. Iv 1äs
Iaj 1u1 sr"- "Ic Ic Iý. L. I
. ret. ,ýJ1ý. .; sa ýJ ;.)
` 19 JIv. y L`
OJ ly I l`I ý.;
.. ýJ ýyJ , _J

{5) Q"4,160.

(6) Q. 2, I84.

i7) Q.2,185.

(8) Jassas, op. cit., Vol-I, p. 206.

Hibat Alla-h, al-Nasikh wa-1 mansükh, Cairo, 1387/1967, p. 18.

For detail see Tabari, Tafsir on Q. 2,184-5.

(9) Nahhas, op. cit., p. 41.

ibnHazm, OP-Cit., Vol. 4, P"471-

(10) Q.5,13.
(II) Q. 22,39.
 (9)
(12) Q. 9,5. The sword verse Cf. Hibat A11äh,
. OP-city p. 51.

ý-"` Lý. 19 ý, le ICJ I ýý.... % l LJ 14, IIä. JI Iv

9 ý v ve vS. 9cöý. ý,
Uz dj.yi ý 9c L*J9J L&.. L"
" `.. _.
" (ýp,. L.; Iyý LJI Iy; 19 ö; t'i II 61 I9,,bvL
W
(13) Q. 2,190 3 c. 2,244"

(14) ibn Hazm, op. cit., Vol. 4, PP"448-9.

J_ JIyc Iy aJ .JL, ö L;ýJ 19 j 19rßI 19 31! 11 Lý. ý...:

_ r- jJ 1ý: c. 9

" J
ý._,.. 19 J I 9; IoL. j 1y öýI J 1vI ýöc aJ JIy
ýý, .. v, ý ?,ý. t:ý4 .1,,1-x:
Amidi, op. cit., Vo1.3, p. 177.
L. U I j 3
d. :)I:.
_ýJ

19 L---JL 17: L a;:ý., 1: I I

_: 1ý r: 3 1J r6 .a

(15) Cf. Malik, Muwa (2 Vols) Cairo, 1371/1951,

a', Vol-I, p. 297.

(I6) Malik, op. cit., Vol. I, p. I46.

ibn Hajar, Fatb. al-Bäri, (17 Vols) Cairo, 1378/1959, Vol. 2,
P-9.
S `,.
1.,,. :JL LJ IJ6
,JL.
YJILUI:,: is
-J
"rI öýl-, c 1..
i ý J9J., I SJ SJ
ýi . 9 l"""' ° p `ý1i 1 ""r aýJ ýS° lJ_" t! "'
But cf. Q. 4, IOI.

JI

(17) Q. 21I06.

(I$) al-Razi, op. cit., Vol. 3, p. 232.

il I`1ý, ^, öI 1.Ip; S v9ýý LýJl; IJ t v?? = l
mss, J:: . eJ ' ý. t,
Z.5") ä Lý,J a: tI I aý
uS ,.; . .r au .,. ys9 sý

ä)
-. 179. i z, Is rr r
Amidi, op. Clt.
gVo1.39 p.
al-Khudari , op "cit,, pp. 31I-2.
 (io)

°`', J. ° W- I &-; J 1J
ý'"'' t 's' .L

(I) See Text, p. 48,1. I0.

Shäfici, Risäla, ed. Ahmad Muhammad Shäkir, Cairo,
1358/1939, p. 59"
ibn Hazm, op. cit., Vol. 4, P"391.
Cf. Schacht, J., The Origins of Muhammadan Jurisprudence,
Oxford, 1967, P"52.

(2) Usu-1 al-Jassas, fo. IIO. (unedited portion)

L a.1.lr =-i
d. I `, is
rºJ ýJ csý 9

(3) Ibid, fo. 97.

k J
ný. . r...: 1:
9 j 6-.. l LJý I
41J a..,. j I ,,.I ;,,; IS
-, I
"J

Jsa; I vyý1II isa ä.ß.,o JJ JJ Iytoba.... yLa: 1

. ,6 W,
JL Ij !.J I ß.,,.s1IyL:, it- 1,..:
--j ýý.
l
a. co lS I yL`. I iJ LI-P 6 li 1 J Ij ti; I u"J
.iUf. ý. a. ,,
LV6 ,,
VL
LIJLJILS
" Jt: J Iiý;.
LS &W
L ýt 'i I JI9,
>.I J3I ý*;
L;
(4) See Text, P. 14.
And see p. 52 note. 2.

(5) Usn1 al-Jassas, ff. IIO-14. (unedited portion)

 (II)
d--; `ý
9 S' J1.
' ä1`J AjI
Lr6

(Iý M. M. Dawälibi., al-Macikhal fieilm Usü1 al-fiah, Beirut,

1385/1965, pp. 166-67.

1;j.,,,;, I I.3I j
_:.II. j,.,oyI 'u ju
J..;. 1I ßs1111 131 LS Ij1I
c ä.-"J I L: I '1J

"ä,.. s.: ' .:.. ý 1,s,; IJ I' c a:c

ulIß;...,. `='-N'
(2) A. W. Khaläf, oilm Usnl Cairo, 1397/1977,
0
al-figh, PP"105-6.

"600""l.: lJb L:J

-,
" ý.;ý. rc LJ I ',. alp U1Iý.. J.b
_USJ
(3) For " jdiJI" see Ghazzali, op. cit., Vol. 2, pp. 35-6.
ý,9. aJI
A. W. Khalif, o . cit., pp. 182-83.
M. M. Dawalibi, op. cit., pp. 145-46.

(4) See Usn1 al-Jassäs, fo. I07. (unedited portion)

J-la1 I `=59 JjýS S:c oý.,..: I I vIoIvI ä1a. `: yI ý9ý9ý9ý`ý y

t. ý, ^!' 1'
4;p e
1 4-L° c asa1SI JIý: ): I as Ji.,
ý`'"= f. r. e 4: 0, .
yy alt, J I o! I Jp"ýý. y 1.1aiJ L
.: y,, e .eyIj
41s c ''' IvIy 4&6 ':-j a's'vI &W I J! L vI ý7ý
C-0

y c; 1' äaý..: J Io iQ cjc l :. yIC yi

. )l ,Sr,
I wk sI I J,. 4J11 1% 4 ly J L
rJ ý, ,1 ,;
c `. "slyý. l lý t.1!G1 Lam,a.U I ,6 ý9?`r 'I ': U 3ycý. J vIo 1:.ý..
y
.itd
. RI, iljy
.
(5) Q. 60, II.

(6) Q. 58,12.

(7) Q.58,23.

(8) Q. 24,62.
 I

(I2)

(9) Jassas, op-cite, Vol. 2, p. 12.

01 ` liy. 114t LL-a j lx. a;

. t-:1 ,ý' all) C:r 01 3

(I0ý ibn Rushd, Bidaya al-Mujtahid wa Nihäya al-Muotasid,

(2 Vols) Cairo, 1379/1960, Vol. I, P-305-

Lt.;, a: ý:JI.,; - t" 1,31 JLJI, 1
N!JIe +n c 13 IYIý, (. JIuJ y I J IyI öy., ý119
.i ýc ý, ý, ýyý a,; ýp;,.,, ý
" (ý. L I ýý ý: I... t',
ý.. ý., n: '_ rl ý;ý._,. i) J, iJ
u!
(II) Jassas, op. cit., Vol-It P-311-

'i t_.:
I--- I CA S I "c L Uh LLA,
Lr -Z)j C. C.
) a",
uP C9b Cr: rý a-
I
all u, 1.,, JiL-,jjIvIIa, 1
t-,.
°ý--ýJ. JV Js I auI Jrýý Jt
Lg;CPJ
-
And see Usnl fo. I04. (unedited
al-Jassas, portion)

(12) ibn Hanbal, Ahmad, Musnad, (6 Vols) Beirut, 1389/1969,

Vol. I, pp. 259,316,318.

(13) See p. 422 note-28.

(I4) ibn Zad a1-Masir fi cilm (9 Vols)

al-Jawzi, al-Tafsir,
Damascus, 1385/1965, Vol. 1, P-75-

(15) Q. 37.102.
(Iä) M. Zaid, op. cit., Vol. I, p. I85.

ä: I.j I: ý! jJ j II. ýý ,1, y"..... ý1JI -S.,,j a..i 3-- Lx...1

-!

(17) Amidi, op. cit., Vol. 2, P. M.

Nahhas, op. cit., p. 231.
"
ibnKathi. r, or. cit., Vol. 4, P"326.
M. Zaid, op. cit., p. I33.

'" l. k äý..?..... Iý
L'., Las
°-trý9 rlS vI ý1c I»J IvI
L J. c

CO aä. .Dea jI IS =-.: 1 S i, i i> )

cD . (I Z
.9A L .;
 (I3)

J! 1,,...1 tSjI(,. (s äs II
,x: __" ,
'4JcI, " I lIJ?
`, aU al wý ýs-k
%"S sy, .. 1I ar äs a L 14, I, I aA J iý 1..L9 cP 1., I k
ýý ,s . ý:,, ,ýJ : "J a:,
" är *11 (_ 'I s) :I iQ ý. 4111 I"uc äJ
. . r cý+
Js'J I k. L I3, JIa.

(I i) x"9,5

(19) Q"24,4"

(20) Jassäs, op. cit., Vol. 3, p. III.

(ýI) Jassäs, op. cit., p. 35I.

00 *
1,49 1>9)J1 c- L.; ý. JIL3 Ij z,. is
uJ-,° a. a-6 .W-U19caWI .

)I J Ii
13 L`ý'J I L :. I>911I
;..,...: a; ,it . ate. -. .ib ate- I :JL
J 11v txu Aw I Z. y) J
' ý"-N.
4:r ý:,y 1;1,9 L, U I J. I
y --j9 _s a.
('%2) M971ik, Vol I,
op . cit., p . 299 .
And see Maltki, op -cit., pp. 122-3.

U I as
a. ý!9-ýý ý.. t.. ls 4. lsaIß.1I ý 6 ,: ä..: 6 C.J l;
üs ,, a9. ß, P9r
IS
°ß,,,r°11rF L: u l, ß.ß ;ýý 1.. 6 a l..,a. ,º13 a. L,c c cam, I
yJ ý,. I
I (9
a_JcaU (AL
°J. s. °ý"' s 1... L,,. ', I..,.
9 j; " asJ: v,. C.
1; ti ' ,A

" °: Jga
, 9-S49 c,.

Also i,
see Shäfi ikhtiläf al-Hadith, p. 498.

"ý.: Ji jL
" a,,. V, ýr 1! -
_ , -ý
 (14?

ýLjI
(I) See Text, p. 16,1.2.

(2) 7, I9-9.
.

(ý) Suyuti has quoted this passage in his Itgan, Vo1.2, p. 26.
LIa. U IL l.; Iy o9 A,
-,j I I11I I l9
cýý y., Jj
1.,.,5 JI If 'l L Q1. (, Lsz91
x:, Pl~ ß. y ý, v,
yIJI J ):
Ia LS l ý1S J äý.. ýJ
Ly; .ua t:; a1g'sýc , S L' .UIL .S
.,

14.U I

lc I
ar. a1J SJ, JIö li9 ý,. I., 1
ö,.I '
. v CA) Lc
And see Zarkashi, al-Buch n, (4 Vols) Cairo, 1376/1957,
V01.29 p. 40.

(4)

(7) Jassas, op. cit., V-ol. 2, p. 561.

U I
a. a. jp c, c a-z I:.. `yý lPI ä'. `.!: i )
c,.;
l_ I
r , cs) Le vs
Lß.. 1::. L!ý L-s I1,19 ssaIý.. l. c IJ6
,ý9 9ö 9 . e

L" "1 h. L" 13

"ßy9 3 x.-

(6) al-: Sarakhsi, op"cit., Vol. 2, p. 3I.

l4S I"4 41 J6 LFc; l.. s t.S-J I

r9-ß
ö Iý ik 15 Lw.,1:ý. S!". L...ý.s) J9-ß Iö I1L äý. l-.4 L
°. .: -yiý. rL1ä: P ,... cr. ý r ý.
I :J
Owl
l.. !U is J9a,vIy1 :U -u a: 6z 1 1.5p
.iv 'ci
ö Lam- 4.9yl: U
4;.,,a. Ia LLS l)J Ics
ýs te-
" rl..,, 3 4:.6 di I ý1, ý aU I ýIýýý

(7) See Text , pp . 3-I0.

(? ) ibn Hanbal, op. cit.., Vo1.4, p. 74.

Elbat Allah, op. cit., p. 5.
ibn Kathir, op. cit., Vol. Iq p. 149-50.
 (I 5)

ý9) Q.87,6-7.
(zo) Q. 2,106.

(II) ib. Kathir, op. cit., Vol. I, p. 150.

(12) (10 Vols) Haiderabäd,

al-Baihagi, al-Sunan al-Kubrä,
"
1344/1925, Vol. 8, p. 211.
ibn M ja, Sunan, (2 Vols) Cairo, 1372/1952, Vol. 2, p. 853.

Hindi, Kanz (12 Vols) Haiderabäd, 1365/1945,

a1-CUrnIn1,
Vol. 2, p. 359"
Suyuti, op. cit., Vol. 2, p. 25.

(13) Hindi, op. cit., loc. cit.

Suynti, op. cit., loc. cit.

(14) Zarkashi, op. cit., Vol. 2, p. 39"

Suyati, op. cit., loc. cit.

(15) Tabari, op. cit., Vol. 2, p. 106.

Suyuti, op. cit., Vol. 2, p. 26.

(16ý 7arkashi refers to this by saying:

tU a-ýXWIa iQ.ý äL aJ L
.
de
.9
op. cit., Vol. 2, p. 36.
And see Suyuti, op. cit., Vol. 2, p. 26.

tla. ul,. ýsl 41JILsa: Iý. ýIýý J3+J

IF,
"< aUIaI (fS I
all x.,Ls J (; L
.
(18) al-Baihagi, op. cit., loc. cit.
Muslim, Sahih, (8 Vols) Cairo, 1375/1955, Vol-I, p. I16.
Qastallani, Irshad (10 Vols) Beirut, 1391/1971
al-Sari,
Vol. 7, p. 212.
 (16)

(19) .. 4,24.

(20) Q. 8,75 ; Q"33,6.

(21) Q. 2, I83.

(22) Q. 2,2I6.

(23) al-Sarakhsi, op. cit., Vol. 2, p. 39"

ld: Icäý; I- Liz- LSvI" ILiI J9'» uIyý. 1 : 4J? 1v
iýJ JA
is &-j; Lsi w 1, Lj Ija. ý.ý.
öyýL-JI LS jli: I U. Iisz %It ä: L u9i'
jJ -ýo uI rid
Li IJI; 4 ýY< (j IJ 1" a;,- JJ Ijj L
äa;
,,. <y v-6 r .3U º
But Suyüti's (o loc. )
cf. statement:. . cit., cit.
äyI `9. s JIa. I ä%-ý> äßi: U
.aý., LrL "..,,, tý y ý' ßs1 9 ý="ý

(24) Q"53,3-4"

(25) Nahhz. s, op. cit., p. 9.

Jeffery, A., Materials for the History of the Text of the
Qur'an, Leiden, 1937, p. 7$.

(26) c. 3O, 22 ; Q. 42129.

(27) Q.IO, 7 ; Q.13,3.

(28) Baihaci, op. cit., loc. cit.

duI LAIC uI
a. ýJ. di I bS j JL
J () 1:.1IJiIY i: jJ I. (44ýj ý,,, ls
L.,"° 14c y JJ o- Ate`s,.., a ý; a.
.... ä. I 1.. l:. (J ä I' 1 Ii
"(, 52g. ý. j 9'. I
4...! J rýiJ r..:: 41J
,J
N 1ik, op. cit., Vol. 2, p. 824-

(29) '%-17186.
 (17)

(30) Q. 15,9-

(31) Q. 75, '7-9"

(32) Q. 12, IO4.

(33) Q. 6,19.

(34) Q"41,42.
(35) Q"17,9-
(36) Q. 2,97"

(37) See Text, p. 60.1.7.

(38) ShEfioi, K. al-Umm, (8 Vols) Cairo, 1381/2961, Vol-7, p. 224.

.

11.11 j 1. L';
ul-i .uI':.

IJ 1Iv, `Iä- LAsayLy4_. lc

(39) Fazdawi, Kashf a1-Asrä, r, (4 Vols) Istanbul, 1307/1889,

Vol-3, p"909.
ibn F.azm, op. cit., Vol. 4, P"452.
al-Sara_: hsi, op. cit., Vol. 2, p. 79.

(40) 4.4I, 42.

(41) al-Sarakhsi, op. cit., loc. cit,

x.. 3 dJ i ý. JIIJJ. U
as n. I Cr+ l; ", - ; is
r31..
ä, UI
" ý, J- J11 I* J J. r, I'a; II
,9c SJ-

Also see ibn Zutaiba2 Ta'wi1 Mukhtalaf al-Vadit Beirat,

,
1393/1973, PP. 310-5.

(42) Q"15,9-
(43) Q"75,17-9"
 (I? )

(44) Jassäs, op. cit., Vol. 2, p. 152.

Lß J LU L. kc, IJ; t.
c,jL-4; .33
JJ9
Lk c-,,, o ä.W: lc _.,.. a L. 1
,
U
rL y a- °. I LUI
J ycý. 1:, l.. fa
..ý,, ? 9 csi9'
ar .shy, r1 13 6öl:, lr v IS I Imo
&U
_6
C', ,J .i J-h, ýcý, ý I 63
.I y q-6 4W L,,, o .IIä
IS uI I I- vJ I % &-.%. I:
91 ri>J ,YIJ . use, uI1. u--f->'
a; j. ý la l-.,. IS L 1.. k I l1 l.. L
g.r:.. , r. y a: 4.11 LV1.
o d.UIL:.
I
.J .L .ýý,:ý v lS `1J .i v9< uI`!? Jas1...,
Ji y ß.1.r ya 41.11U1.- Lr, J 1 I, IrL )9 rIý I ý. 1
gis' ý.r .

(45) a. 4, I5 .

(46) Q.58, I2.

(47) Q"58,13.

(43) Q.2,240.

(49) Q. 2,234.

(5o) a. 21I34.

(-)I) x. 2,135.

(ý2) al-Sarakhsi, op. cit., Vol. 2, p. 30.

(ý9:... 1I r i,... L) 1Lam,d; ä1JI`6, C6
ýi " ý.
L").I It53 1...ULýIyI (ý
ä lsgJIö ýc aä: v is J9-ßJ I 16 b- )" 1. - aJ,i :?J 3s ýLJ I` 1äv
. r L) L5J ý°y
I u:, a9 if %, 11 1.1,1- IS Jy
y, . 5-J .I 7, r. ,,
i all J-9
r.
y PpX11 v.., - )1
ra- 9I

Ghazzali
, oD. ci t, 'Vol
I, p . 124 .
ibn Hazm, op. cit,, Vol. 4, P-441.
 (i9)

(I) a1-Sarakhsi, op. cit., Vol. 2, p. 65.

U I
a;,oa. LJ Ii
tý
"ýy (JIc lo,. 11 J Iyc, bLJIä,, IIL
(2)
ycn;. rte rk
Q. 2,187.

(3) Ibid.

(4) ibn Kathir, op. cit., Vol. I, p. 22I.

Hibat A11äh, op. cit., p. 17.
For detail see Tabzri, Tafsir on Q. 2,187.

(5) Q"5, I3.

(6) Q.41,34.
(7) Q. 22,39.

(8) Watt, j,'. M., Bell's Introduction to the Qur'än2 Islamic

Surveys (3), Edinburgh, 1970, p. 163-
11 It is known from. 5 m 73 that prayer for a large part
of the night was a practice of the Muslims at Mecca but
that this rule ( by verse 20 ) so that
was abrogated
rising at night ceased to be obligatory. "

c
And see Shafii, Risala, pp. I13-7.

(9) Q. 24,4.

(I0) See p. 131 note. 21.

And see ibn Haja. r, op. cit., Vol. I0, pp. 65-6.

(II) 1391ik, op. cit., Vol. I, p. 294.

Muclim, op. cit., Vol-I, p. 40.

(I2) Q. 4,15.
 (20)

(13) Q. 24,2.

(I4) See Text-9 P"75,1.5.

(15) ""4,15

(Z6) See P-429 note. 28

.

(17) Jassas, op. cit., Vo1.3, p. 314.

(I3) Q. 291'30.

(19) See Text, p. 265,1.2.

(20) See p. 13, note. 22.

(21) Nahhä. s, o^. cit., pp. 5ý)-6.

Jo J6)

ilibat Allah, op "cit., pp. II, 20.

Iýs"J
I ää ý.,o ýS ä,öyýä..l Ic ISjJI C..ý :ý lä ß.äf I ,aý ý,, 1vr Syr
I JU
ýs .
3 J5 JS

A corai. nb to Jassas these were riot cases of abrogation.

He has tried to harmonise them. See Text, p. 73.1. I.

(22) According, to Shafici, ; his hadith was abrogated.

See ikhtiläf a1-Hadith, p. 495"

Ia. ICcI.,. tJI: I

L,">tl z, c vý ýýc1ý9ý1IcälII. ý
J, 1.=.s j--. 0 Iý.. >y. iASvl: LQ1131:,.::. 16 ä.;.r Iz uc (s'J1
-j9L1a. P,,,,
L',,, L cc 'W I ` lJ I l,.J lC all I
v. ,.:.
c I.,.J I jd53ß. 1I ý. 131 `. h J.,.,.ß.1I
L) 'ý rc 3°UI".
ý9«
LJ

But cf. Jass s, op. cit., Vol. 3, p. 308.

J ý9
. 1.A 9 , ir
 (2I)

(23) Q. 5,42.

(24) Q"5,49.

(25) Sh;. fici argued that vv. 48,49 " Judge between them "
.....
served to confirm and elucidate v. 42. (op. cit., Vol. 7, p. 39)
But Jassäs and Nahhäs argued 0Abbäs
on the authority of ibn
14 . .0
aý Mujähid that v. 42 was abrogated by v. 49.

(See Nahhas, op. cit., p. 31; Jassas, Text, PP"73,83")

Also see Introduction, pp. 149-50.

(26) Jassas, op. cit., Vol. I, p. I2.

(27) Q"73,20.
(28) Jassasq op. cit. Vol-39 P"35"

(29) Q.8,65.
(30) Q. 8,66.

(31) ibn al-cArabi, Ahkam al-Qxr'än, (4 Vols) Cairo, 1376/1957,

Vol. 2, p. 866.
Shafici, Risala, p. 127.
Jassäs, op. cit., Vol-3, p. 59.
ibn Hazm, o . cit., Vol. 4, p. 486.

(32) Q. 5,6.

(33) Jassas, op. cit., Vol. 2, P-408-

*

J--; J I ýy,. cý1.,oJII (ýSSaý. I}Li li) (I

r wra; ý.9 . LJ alys
JY :U l+ I äß:J 1 a.; I;
.ia; ý . ýºJ j
4' 4: It äj ý"J I l, 1 I I1' I ýa c-;
1-i t'r vy LSI -U
u ý"yr a: Cr 61a
a.,., to 3 I) s 4:
.q ,JIja: y -y. wj
4: cý-''a= üI ýt? 'L Y

"a .A }sa 1.4;4 1-a..., 1 la

But of. Muzani's Shafic1 ..
statement, 7 OP-Cit., Vo1.8, p. 2.

cä.; 9Im. ,., ýy 'r 9 ci^ & °JI-1-1-Lg;.

>.- 'J i: L.
-J 1J6
L *J
 (22)
Ycc _. lý JlJL. `l
S. I': I
41J L_$J-4Jy4,,ä;:.:ý.. , °9,ýyJI t> I ý.
,
bi Lt-!
- 3 roL

Also see Introduction, pp. I06-7.

(34) Q. 2,282.

(35) Jassas, op. cit., Vol. I, p. 6II.

al-Tahawi, Sharh Macani a1-Athär, (4 Vols) Cairo, 1386/
1966, Vol . 4, PP-144-45-
Cf. Shafici, OP-cit., Vol. 7, p. 7.

(36) Q. 24,2.

(37) Ibid.

(38) See p. 42, note. 28.

(39) Q. 212110.

(no) Q. 29234.

(41) Q. 2,282.

(42) Q. 24,2.

(43) See Text, p. I16.

(44) See p. 20y note. 14.

(45) Q. 29I44.

(46) Q. 2,142.

(47) See p. 7, note. I4.

(48) Q. 8265-

(49) Q.8,66.
 (23)

(j0) See p. 21, note. 3I

.

>i) 73920.
.

(ý2) a. 73,2.

(53) Q.73,20.

(, 4) See o. 19, note, 8.

(55) a. -)3, I2.

(56) ý.: )8J 3.

(57) a. 2 J37.

(53) See p. 199 note-4.

(59 ý Muslim, op. cit., Vol. 6, p. 92.

1asa'i, $unan, (3 Vols) Beirut, n. d., Vol. 4, p. 89.

L,, % 6
4:.. I
&1u au IJJ6J6a.; 1 ý,c aa.. I
ý. .; ?-
L. r. ý"r
9 r. JI of 6 Iii..,. is at )b jy L'. 1 j
rLI ,i 'ýy 0-,
" ä,.
ý... yI Iy,, 6s lä- \I I
ý,: ýr
(60) According to Jassäs this sunna was abrogated by the Qur'än.
See Text
Text, p. I2>" >s>>P.
1.5 And see op. cit. Vo1.2 3.; 2.
ibn al-Jawzi, op. cit., Vol. 2, p. 290.

(61) ibn Hanbal, op. cit. p. 133 ; vol. 6, p. 391.

yVo1.27
ibn Mäja, op. cit., Vol. 2, o. I068.

ý.. ý...., j 1.-1 l::

L.. 4.J all I - &U 6J"
ý, ý. LV., 1113--jv
" ,a1-, JS 1.
rAj
Cf. Goldziher, Muslim 6tudies, London 1971 2,
g q vol. P-56.

(62) ibn Hanbal, t

o . ci ., Vol p. 2,30.
.2,
 (2ý,)

(63) the the ruling to '_:ill a rin if

According to mijority
he drinks fourth time is abrogated, but Suyuti thinks

ted. See Sharh 'asa'i, op. cit., Vol. 8,

it is not abror.
p"313"
(04)
a1-Bu! chzri, a6h1h.,
(9 Vols) Cairo, 1377/1957, Vol. I, p. 63.

,,uslim, op. cit., Vol. I, p. I87.

op. cit., Vol. 3, p. 414"

aca'i,
ibn Yi ja, op. cit. Vol. I, p. 164.
_,
Tahäwi, op. cit., Vol. I, p. 67.
: `, tom.1j
I iii ýt'. yiýIýi
all ýJ ,a ý ýr' vý'
"`ý, WIJJ tom.L ysa
(5) 0,.9,5"
(66) Ibid.

(67) ibn r_1-cArabi, op. cit., Vol. 2, pp. 379-80"

f L- Ij6
ý..,
4J iU L J. L I It l: y ` LJ" is
3ä: r uJ - :;.
JLLJ31: Li iI
,4J

Cf. Suynti, op. cit., Vol. I, P-27-

(63) 4.4774,
(69) Bukt Vol. 7, pp. 202,206.
ri, op. cit.,
I:aac 'i, op. cit., Vol. 5, p"170-
ibn ?:anbal, op. cit., Vol-3, pp. I33.203"
Tah¬iwi, on. cit., Vol. 3, p. 180.
Jasse, or. cit., Vol. 1, p"139"
I IS
all c.s l" .JI -G

I I, ýY'ý l`L.. öl... J is .... -a1t. 1I

aý1J aJJ s: ý.
"e Ia_1Iý, c LLj.; e1-' ars
3

(70) Bukiiari, Vol. I, p. 145"

op. cit.,
?u;; lim, op. cit., Vol. 2, p. I07.

ý71) ibn Vol. I, p. 222.

',; jr., op. cit.,
 (2j)

(72) x. 2,173.

(73) Jassas, Vol. I,

op. cit., p. I33.

IJ 6J "J I i> Sys a+

r- : c'r u
II iA y ((u4 )1, y1 ý}9 y": ý.,., 3 4J 4i I
CP. - ks9ý- ,,, . LJG 41J
`ia:. I I 1119 J 4J13 L aJ 1S är 'I Ir,,. , 1_,.;l...w %.
ry. c °: uo .i ýi , -
Iý
9IJ Ls°
(74) _
Jassas, Vol. I,
op. cit., p. 173.

(75) Jassas, op"cib,, Vol. I, p. I34-

II Iss U 6s iU LJ `z lS ::. J lv äß.. i
c-6 dU
ILj v. Iy). L : -, dJ )l. s rL L'". L"ýiL ýJýs L" JLi1.,,
csß'9 . ýJ ý y
l sa"..,.; LfJ I I.: LI, LL lb
111.. äe1.,., is yr L- L,o > asl,.,..: Ili- oL'J... I.z l'.. j
,. e1c-J `ý. } .ý1ý.
1.
" ý.,Lsa
1: Is I
9:,; :ua J. I
C. 6 L: J Us L:: 6 I
ý. yJ o L, 4.. au ýJ.,o

(76) Bukhäri, op. cit., VD1.3, pp. 222-3.

Yasa-_t-i, op"cit. iVol. 6, p. I02.
ibn .Iäja, op. cit., Vo1. I, p. 622.
Jassas, oo . cit., ýiol . I, P. 485-
0.

(77) 1-5149-

(73) Q"5,42.

(79) See p. 2I, note. 2).

80) Jassäs, op. cit., Vol. 2, pp. I9I-2.

J ti .Z.. 431. L L. J 1b am.j6., ý i --, J i, 12wa,

,, ý.,.
aJ U.
J 9ßr1
iiakci oo ci t, p . 44 "
,
JA Iy 4) V Lc
.
UI1: J9' I ' 1;, ö li (4 L
ab z ,, --? _LO Pr' Asa . --" ,J11.D4
,"

(3I) Jassä. s, op"cit. p. 540.

gVo1.39
 (26)

(32) Jassas, op. cit., Vol. I, p. 526.

LJJ J6
*0 3m ý9' jIIý,: .LsI
lax v lSi
.
And see Text, p. 176,1.3.

(83) Jassas, op. cit., Vol-I, p. I89.

t.A a,. IJ1. I UIIyý, I. J I a;..ic 4;S, J,

SIý.
. x .,. Ls1C
ý 9 cs".
IL,lSL-; - LL-ý IGLr:.
LrL JI lS :,
1s3 9..,

(84) Ariidi, o . cit., Vol. 2, p. I88.

al-Sarakhsi, op. cit., Vol. 2, pp. 66-7.

M. M. Da -alibi, op. cit., p. 341.

(85) Q.60, II.

(86) Jassas, op. cit., Vol. 3, p. 542.

(87) ibn Iianbal, op. cit., Vol. 2, p. 454"

(88) ibn Hanbal, op. cit., Vol. 5, p. 6.

Hamadhani, op. cit., p. 205.

(89) ibn MEja, op. cit., Vol. 2, p. 853.

ibn Hanbal, op. cit., Vol. 4, p. 276.
Hamadhani, op. cit., loc. cit.

(90) x-5967-

(91) Q.15994-
(92) Jassas, op. cit., Vol. 2, pp. 383,507.

(93) Q. 7,32.

(94) Q.67,15.
(95) Q"7,31.
 (27)

(96) Jassas, op. cit. Vol. 2 p. I 3.

[t ý1yI . 1ý.,.1is ä_ l.. l.,. I ": j lss W J IJ li

.:. .i ý>c " Lr:-"-.:
1. Y10L. JIC, " C. L.. J 19) aJ."i a,
" (ý >Y I Iý.. -, 19) : aJys cc LI: ((, 5: LI
,. ý,., a, v 4Jy; 3

(97) ibn Hanbal, on. cit., Vol. 3,0.479.

trsI vc lJ
!. LJLIý; ; a,. a,L)I a. c l: ; ate.

jý
cý iý. (c Lit,. ý.. s iý
s J tü `asý.: l,,.,
"cc. yý . sJ vt"ý.. sisr, y aý!c &u

Tahawi, op. cit., Vol. 3, ?. 475.

" Lfs, : ý, ö )LJ I ýia,: cr äýýc is, ýJI I'°: j is

, ý;, ý_>r
'1L.,ýJ Iai, JI". J.-, J I1 1, t is c 6:j 1 :U 61
a;. ,.: _, , J- C,, .i aß.9 9

ljiL.., 1-*- IIj

9
LYs1.,.,9c LF ýý9c LY-ý-?9 9cI ký-"-^ý 5c lsaj I Ly.;, u ý. LYn:..
.. u1
"Ls; 'iJ. 3ý, LUiI1 `J,
ý,. r.

(98) BukhEri, op. oit., Vol. 5, P. 17.

y1 :;
a_ L i: I .ii ` 1. as C,1& ac 6 c, IS r.l .. y a_.
lc aU I
Sý
J1
-. ,ýI . Lr.,
Lcsa il. Lt. J. 3. J l.
" v :4
_li
'uslim, op. cit., Vol. 7, p. I16.
lý. lS L--. ,. I U I Js, lS J 19ä :: tz i
ýc s -1 9 4e-6aU a. ",,ý u ý,
ý?
....... (.: r y- ,.......... IýL. 64.; L 4_ ice
,g., 31 .

(99) Jassas, op. cit., Vol. 3, p. 23.

aJ I aý, L ýJ l.; J 19 a6J Ii L',,6..,. l c sa1S; J51 ui Iy
plc `J_J _,, .ýI
Ljr j6 a->-S, ,cII. L;Jy"s
J I J,.. lý, l yJ I Li Li-: I.,, l; 1,1 IS1.,;, I
a! ý s ý_.ýsL'=J ýý . - .
Jr= Irý I ý" I IJ l' s LZ L:, I. L.,ö l:, IÄ(. i sa 1. J Js I
a. 41J SJ.,.
v+ ý, -, o
is .
c LI isa 4i c isa v9ý' u1ý. s- : ý. I 1
._L., . 9cU., . 1;
"JU141., ý I f
){...., Iaka: ýJ y a; J I` 6S 1, IU` jS `JI L. 15 j
1. ý. v 9J

al-Sarakhsi , op" cit ., Vol .2, p. 20.

Cf. Shäfici, ikhtiläf al-Hadith, 0.508.
ibn Qutaiba, op. cit., p. 266.
 (28)

(100) Jassas, op. cit., Vol. 2, p. 158.

" I I., a-, L 'J 19'hJ I"s, L. -

*,;.,, rsý
.rv.

(I0I) Bukhari, op. cit., Vol. I, p. 20.

ibn M ja, op. cit., Vol. 2, PP. 1318-19.
.
ibn Hanbal, op. cit., Vol. 4, pp. 267,269,271,275.
Sunan, (2 Vols) Cairo, 1386/1966, Vol. 2, p. 161.
al-Darimi,

(102) Bukhari, op. cit., Vol. 7, p. 137.

ibn Hanbal, op. cit., Vol. 6, pp. 36,71,97,190,226.
Nahhas, op. cit., p. 44.

(103) Baihagi, op. cit., Vol-8, p. 302.

U04) See p. 24, note. 64.

U05) ibn Maja, op. cit., Vol. I, p. 163.

ibn Hanbal, op. cit., Vol. 6, p. 407.
Hamadhani, o .c., p. 41.

(106) Jassas, op. cit., Vol-I, p. 271.

ý1Ij! I aJ I, lß: 1
ýºy--, _.
<<< 16_ j69ý, ate. Jw
ýJý .ýL ,
3s9 fS is
-tu . ,
U07) BulJiä, ri, op. cit., Vol. 7, p. 16.

al-Darimi, op. cit., V01-I, p. 368.

al-Sarakhsi, op. cit., Vol. 2, p. 21.

(108) Bukhari, op. cit., Vol-3, P"94"

al-Sarakhsi, op. cit., loc. cit.

c-._ U1 i lJ I L,.* j a.,J I 1 1 :, -, j Ivycý,; Lj I C.

-äjJ , L, L. . ýýi

Jim,
 (29)

11, jJ I ICJIjj 1.9 l:.: lJ J l5 a.

ý.,ý. y4J ßc9 .ý.,.._ 9. ýJ9°" .l Ls
......... 1I ý. J I sy lij IL ý. 4...,, j iý.., is I ýu
`, ý y,. ý.. üs , ýo ý(y _, . ý a:
cI... k ILa. U I
y a. all
L.; ýI Iv lSb ýI IjI L*-..,, vI L3 ýIý. ýI c I-c-. I
9ca. '. 9i 9II .yý cS9ý9
lr "iIifscJi L' i} l9 ýýä cI Lý--'-9) ä llý
c s-. _ . .>I. r} uV uI ýc9ý v+ cs°
L; 'J
L

(109) ibn 'daja, op . cit., Vol. 2, p. I0I: `3.

al-Sarakhsi, oD. cit., Vol. 2, p. 24.

J Iv 14;P a.U I ýý x; :!J

t_;,; , ,! .ý .aý- .: ,"9
i.. 1ý. J 1. a: II mo-,I is tC:,, iti)Ir6 Ltýp o a: I a:s dJ I
p. Ld-,
SJ J
a:. 9 a. ý. ý. 1.! l. X. J a. 6 is J l a; I }I". öý. yI ý:
>g. ý+.^ rJ ,ný r. f. 9c . eyr,
' ýs° Lj 1v"c C, i I
sý91 ..

(IIOý See Text, p. IIO, 1.12.

 (30)

(I) ibn Mý ja, op. cit., Vol. I, p. 279.

Shäfici, op. cit., Vol. I, p. IOi.
And see ikhtilaf al-Hadith, p"524"

(2) ] Sunan, (4 Vols) Cairo, 1386/19669 Vol. I,

raqutni, p. 239.
Sha.fici, op. cit., loc. cit.

(3ý According to Jassas, the Zuhri hadith ted by

his abro
the hadith by CAbd Allah b. Mascud
which was narrated and
Barra' b. cXzib. On the ShTfici followed the Zuhri
contrary
hadith on the grounds that the isnad was sound and the

reports were manifold.

See Shafici, op. cit., loc. cit.

(4) D raautni, op. cit., Vol. 2, p. 37.

(5) Däraqutni, op. cit., Vol. 2, p. 38.

Also see rargin, loc. cit.

III

(6) According to Abu- Hanifa, Abü Yizsuf and al-Shaibuni

the QAnnt (invocation) in all the prayers was abrogated.
See Tahä. Fri, u p. cit., Vol. I, p. 25.
According to ShEfici, the Q nüt in the morning prayer
was still allowed.
See ikhtilaf al-Hadith, p. 542.
ft

ö ýl_____ o.l I L4J I° !c. J lS l.. lc J ý11,ý vI I Ji

, si `: -ý
. `ý+
" ?a2.9 y9 y
(7) op. cit., Vol-I, p. 331. ý"

(8) Cf. Shafici 527-

o . cit. 9 P.

-J
 (3')

69S °-A-SJJS I l. vS js-,. S

-f-ý° ,'y
5ý J "9 Läc L-"r- I L'.. is
JÄ rr a ý.,
, ' JL, u C) -4 ysLJIJ
ýJ
J

(9) Q. 2 282.
,

(I0) See p. 22, note-35.

(II) " l>."signifies the dates in their fresh

selling ripe
state upon the-heads of the palm-trees for dried dates
by measure; which is forbidden, because it is a sale by

conjecture, without measuring and without wei`: hing: it

is from " v'..ý'"5 because it leads to contention and mutual

repulsion: and in like manner, the selling any fruit upon

its trees for fruit by measure.

Lane, Arabic English Lexicon, (8 Vols) London, 1863-93,

Vol. 3, p. 1213. +
Muslim, op. cit., Vo1.5, p. 17.
Tahawi, oo. cit., Vol. 4, p. 32.

(12) L'°ry "and ", 7'J1": the

"J- computing by conjecture the
quantity of fruit upon palm-trees and of dates. It is the
computing quandity by opinion, not by knowledge.
A needy man, having some dried dates, would come to
the o:: ner of palm-trees and say to him, " sell to me the fruit
of a palm-tree or of two calm-treek?, and would givehim those
C_
remaining dried dates. According to Malik and. Shafi i this

sort of sale is allowed. Lane, op. cit., Vol. 2, Vol.

p. 723, 5, p. 2029.
See Mälik, on. cit", \bl. 2, p. 619.
And see Sk fii, op . cit., p. 552.
.

(I3) :=ee p. 24, note. 64.

(14) Baihagi V o1.3,

, op. cit ., P-390.

(15) Baihaql, op. cit., loc. cit.

 (32)

(I6) ibn Hanbal, Vol. 2,

op. cit., p. 372.

(17) Malik, op. cit., Vol. I, p. 29.

Muslim, on "cit., Vo1. I, p. I30.

(I3) Tahawi, op seit ., Vol . I, pp 106-7 .

Js `-i9 < CI"-W1 J 1. öJLlJ JI

C,.,...
ulp
9I' . U. I.. X-- l. sr, J c 4.. 1c It:. IJ 1-. It
-L1' _, L:; -J1c
sß.111.c' ý:. a.,J I I,. ý,äý, äJlbcä, b l. J
w.,,,. I äJ Iý, 1ý
. , ý, ý. vIý:. ý.: .19y9 -ýJ'
°s:..-> (s: I J99 °ý-'° : s9 JSJ `4i Lß; 1 jp ! IJ i
9-> qc t.
X11 .mj u" `.. ,s
" ýJ la.-. a1JI ý,.y..ý.J u.,,.ý.JI u-. ,aýý.. 95ý 19
ýs:
(I)) See o 30, 8.
. note .

Also see Tahawi, OP-cit., Vol-I, p. 331.

Shäfii, o Vol. I,
al-Umm, pp. 242-46.

Malik, op. cit., Vol. I, p. 186.

 (33)
J----.
mss

(i) See Text, P"74,1.5"

(2) Q. 24,2.

(3) Jassä. s, op. cit., Vol. 3, p. 315

is
I9 lam- ICJIy 4e;IjJ 11JI sJ Ics:. c, 1 J-J 1
.a ý: ,6 "IJ
J LS a: I, L'ß.11. I aJ IiI asa Iy
,
Iu ISJ I i l:.! 1+ a. I
a1ýJ a.r.. .ý- ,sTM^J a>g. . IJ
)I ö y,l.J 1IvISI r"=' l. %I J
A: 1I:....:. s
ý mss:. °-ý>9 .aý.; .15 .rý. tsa
ý,, ýs ,
L I9 t,: I
ýrtJI . vLi xwIý.. ýaJI vlS9J I
ýU a. lti ä lý., nU Gsg.ä.9 1y
ar a.U
J IvI
a1ý, "oy:.Ji 1..ý. ,s.c
, : lS 1
`1I Jý9 'tu aS ate-fir? 9sr
I j
x;. 11f. r1U 4
'": Js; ý9ý9 C")3 0
c_s9 ýW ý, yo .
I ýl I
lam. b ý9ýý L ü, ä1
f:. lIo ý..:
" ,ýý., ,rý,.! a: ..: ýyt,ý ý" o ü ,

But cf. Shäfii c, op. cit., Vol . 7, p. 163.

aj 11. IA JIv l_.%ýý.1Ic

,ý-ý-ý9+ v+ ü s'`=
I). I I L., 9 djc AU J-- 1
1.. I sue-'
a.% &U s" 9 ü" 999 mss'

(4) Malik, on . cit., Vol. 2, p. 282.

Muslim, op. cit., Vol. ), p. I2I.
Tabari, on . cit., Vol. 4, p. 199 "

ibn He,jar, Vol. I2 pp 120-43 "

op . cit ., j .

(7) See P-42, note 28.

.

(6) Jassäs, O . cit., 1oo. cit.

al-Sarakhsi op. cit .,

Vol . 2, p. 33 "
,

a
1 I J-J I 4; *J Ia>
ä1aJ I älý:ý., aß..: a-J v9S.ý
II isa 6.....% .JL '- S.,,
J I C,ý. `_
" ,,. p! . ý,. vWU .UI+.

Also see Abu Yusuf, K. al-Kharaj, Cairo, 1352/1933, P. 162.

(7) Q"58,3"
 (34)

(3) Jassäsý o, ). cit., yol. 3, p. 522.

al-Sarakhsi, op. cit. 'loc. cit.

J19irr'ýýf4,. 1 1.,.
-A---Lij. *y
" ý..,, a: I L",,
ýý..s t cý IsSJI a, Sý1:,;,, 1.
y,.:

t9) Chazzali, op. cit., Vol. 2, p. I26.

ýI AjJ L 4--j 1 LsJ L IyýJ I l-, 6j Ii

Ltz- Y19 e--; y
-) r, J-,
; lý. I- IgJict 1,33 i, yIJ J 1 1-iA c LL I LS11.,. 4.z I,
-i- ' . y_y..ý. dL ,a -
IyJIJý.. 9l-YLI 4 JJ It- a. ýn J
Li tJI.,.: J is
.-IIIC;
' `J 11: I °J.1I 1,..1IyT. sJ ý. Iy
a. rr'ý u ,W'J
al-Sarakhsi, oo. cit., Vol. 2, p. 66.

IS lsJ l; ä; J Iy1,. L-1JI e, `J °r I ° I-J-. J I

,,. - -: c.s°
y J9'ß' a, 1ý. I
ý v+ ýb IA;J1" =J J ýt'"ý WI L-., ýIZ.
c J5'
cs'ý°
c: Yý ;? "J ý""'"'" : 1"

J I L-J I ý' JS' LSJ I IJ! J I

c as a...,. v+ a c a; 1.,,
Jam.. -,.. " '1

ý,.J L ä..,...
Q. 1I bJL,.. b5JI
J 19 ý.. 1SJI a, J 6,. ýySr äß.
ö..JI1JIII. %
albLfpo1%;;.... L6
" J
ä:.,. I I. SJ
Lc Ill I ýr I; IS aäs ä; l>..ý Ii lii, L
y. sý u" ý,"

Ämicii,
op . cit., Vol. 2, p. 190.
2. IM.Dawalibi, oo. cit., pp. 290-I.
Khuciari 9 oo . ci t., p . 318.

(10) i ,n Hanbal, op. cit., Vol. 5, pp. 236,242,

ibn Sä d, (8 Vors) Beirat, 1376/1956,
al-Tab agat- al-Kuba,
Vol. 3, P")34"
Phe tradition :du ädh has been
of reported by the authorties.
According to ibn Hazm, this badith is not Sahih.

See op. cit", Qol. 6, pp. 766,773.

It is interesting to note that Bukhäri and Muslim do not

mention this haäith.

Cf . Schacht, op . cit p I06.

., .

(II) Usül al-Jassäs_. to-33. (unedited portion)

(I2) See Text, p. 173,1. II.

(I3) `Q.29232.
 (35)

j jw I 1.
.

(I) x. 16,39.

(2) al-Sarakhsi Vol

, op. cit ., .2, P-76.

I; L`:, L-äJI6l J-e: ):

Jl. -. aJys11L-SJL Z;JI-; Iy
- -%j
I-*-.'w. U 1.. lJ 19 ýr J1J. r1. J"a. IU 1i
I-Ds . ... V, 9s..:
`ý j5j üIIuI Lam:,aU Iy "' I"I`(;.,,
ýr_: r,
is +-.J L ä; I
Q. ;.J sJ 19 c L-SJL L-J I
_J
sv ä:.,.J I I> 136 L Let ly
.J3

ibn Hazm, OR cit. Vol. 4, P "477.

.

sy 19-ý I I ýc L. l.a., aJpu,

aUI 1J3 jS
ý, ýSSýJ 9) ý1 -Vr, ý,. vIs
I' Iy,,, j5 a
" ýý.y a: '1J
, .3
Ghazzä. 1i op. ci t Vol p. 124.
, ., .I,

f d-U IIuyuL äß,.J 19 Z: jL

-

But cf. Shafici, Risala, p. I06. ( For ýýýýäJL ä_Jl =; ' see p. II0)

ä1-, .9cL,,. v- : 1. LUL.; 1yc_. UU aý....,L %I a: II

,;...:, --i
" X. ý. all I Jý,;,ILý. a..
(3) ;x"2,144"

(4) Bukhari, Vol. ö, p. 27.

op. cit.,

al-Sarakhsi, op. cit., loc. cit.

Ghazzali, op. cit., loc. cit.

(7) See p 23, note . 6I .

.

(6) See p. 231 note . 00.

(7) a. 5,4.

(8) Q. 292I9.

(9) a"5,9O.

(I0) Shawkani, oo. cit., Yol. I, p. 197.

For detail see Tabari, Tafsir, on Q. 5,90.
 (36)

(II) Q. 21187.

(12) ibn :Cathir, Vol-I,

op. cit., PP. 220-2I.
Makki, op. cit., PP. I22-24.

(z3) Q. 60, IO.

(14) Qurtubi, op. cit., Vol. 18, p. 63.

ibnKathir, o . cit., Vol. 4, p"350.
Ghazzali, op. cit., loc. cit.

(15) Q.6o, Io.

(I6) Jassäs, Vol. 3,

op. cit., p. 540.

X17) Q. 9,5"
See p. 99 note. 12.

(18) Makki, OP-cit., p. 378"

(19) Jassäs, op. cit., Vol. 3, p. 454"

(20) Q. 33,40.

(2I) Q. 33,5"

(22) Jassäs, op. cit., Vo1.3, P"436.

: Jýl JL

(23) Q.2,196.

(24) Nahhas, op. cit., p. 34.

.0

(25) Q"59,7"
 (37)

(26) Q. 7,158.

(27) Q. 5,92 ; Q. 64, I2.

(28) Q. 2, IO6.

(29) Q. 16, IOI.

(30) Ibid.

(3I) Q. 6,90.

(32) Q. 21219.

(33) Q. 5,90.

(34) Q. 2, I83.

(35) @.6,90.

(36) Ibid.

(37) Q. 6,146.

(38) Q. 6,90.

(39) Vol. 2,
al-Sarakhsi, op. cit., pp. 76-7.

(40) Q. 2, I83.

(41) Q. 2,187.

(42) Q. 2,183.

(43) Q. 2, I84.
 (38)

(44) @. 2,219.

(45) Ibid.

(46) Ibid.

(47) Q. 7,33.

(48) Jassas, Vol-I,

op. cit., p. 382.

(49) Jassäs, op. cit., loc. cit.

(50) Q. I6,44.

(51) Q"2, TO6.

(52) Q.16, IOI.

(53) Q. 16,44.

(54) Q"5,67"

(55) Q.I6,44.

(56) Ibid.

(57) Q.16,89.

(58) Q.I6,44.

(59) Ibid.

(60) Q. I6,89.

(61) ä"2I06.
 (39)

(62) Q. 16, Iol.

(63) Sha.fi°i, Risýla, pp. I08-9.

(64) s fi°i, op. cit., p. II0.

(65) Q"7,3"

(66) Cf. Q. 2,23 ; 10,83 ; II, 13.

(67) Q.2,275"

(68) Q. 24,2.

(69) Si fioi, op. cit., p. III.

(70) Sh fi°i, op. cit., pp. 242-45"

(71) Ibid.

w.. ä41I uc `,:. i I uc 4 as I v, J. S.(,.,., II

rIC., - s,
-.
J' <ý
"

"( IJ-----.. f L, ä di I IS JL______r; ýý =9.J aU I S

c,_,;,. ý;

See Text, pp. 171-72.

(72) I-1ä1ik, op. cit., Vol-It PP. IS3-84.

Shä.fici, op. cit., loc. cit.
Muslim, op. cit., 1oc. cit.
 (40)

ä; J Li JJ vIý.. 1,
., .lIT,. w;

(I) Jassä, s, op. cit., Vol. 2, p. 425.

lti
a. a. U I J I ý,c ýý iºý.J I JI 0s : Ij
ýs.:. plc c, -., . r%.9r

JI 131 ä:...J L 1,1J

C,. 9slp r-.. tS `,
J1 a. 6-.. 1 I
u1c r,,..
Pazdawi, op. cit., V-o1.3, p"39ý"
c- 7,
Shaii i, ou. cit., Vol. I, 0.32, Vol. p. 226.

M lik, o. ). cit., V'ol. I, pp. 3)-7.

(2) al-Sarakhsi op" ci t ., V o1.2 , P-67.

,

Jia: is L..I:SJL a; I ILJIJ,

ä.:..J L L-SJ c
ý u! y
us a-Js,a. U IýL aiJI I., I ý..,l;S
JJ
ý9?,J I oJ Ir. J9'ß' a. 6,0 I C"i t l
ý.., SJ IYIý.. Lu I ý,....;, J
vý ýYý 9 ýO; ý
c:
ý9
mss;oJIf -
" `. b JL ä:...Ji
Pazd.awi, op cit., Vol. 3, P. 97"
.
Ghazzali Vol
, op cit . .I, .14

(3) .. 16,44"

(4) Ibid.

(ýý al-$arakhsi, ou. cit., Vol. 2, p. 72.

J iJ I au I L'JJ,;I y) : J 1. ý. L-S!I `,..:

Lam.4,; "a..,. ly `. l. ".ýI äý..
.".; 1$ . ,1 >J
L"- - L,SJI S> 1ý.: Iý Iv(I Jý %I. l'ýU
üs sL-. r_c ý. r
ý.... 1IL5
5;

(6) ibn Hazm, op. cit., Vol. 4, p. 439.

LJII,; I ý. ýp; ysa " LJ; L1 LIei

Js Le
(7) a. 16, ; 9.

O '4"42,52-3.

C9) Q."53 73-4

 (41)

ý Io) See D-35, note. 2

.

(II) See p. I4, 3.

note.

(I2) See p. 17, 37.

note.

(13) See Text, p. 69,1. I0.

(14) Usu1 a1-Jassas, fo. 22. (unedited portion)

(I3) 2, IO6.
.

(16) Razi, o.o. cit., Vol. 3, p. 232.

Uhazzali, op. cit., Vol-I, p. i' j.

y I1aJIj
. --
v+ r Jý-'-: LuIo L' L+9 yI la; ý"s a'sl. sýS J I 11,,
>
mss`- .vJ. . . ..;
Ir" J)-> 14 j'u 9Ia; J. ýJ I 'J
4 y. .iß; r41

(17) a. 6), 22-3.

(I3) See p. 14, note. 3.

(19) a"II2, I.

(-'. 0) i. IJ9, I.

(2I) Razi, op, cit", vol. 32, pp. 1369I74.

(22) ß. 2, I06.

(23) x. 10,15.

(24) ibn Hazm. op . cit., Vo1.4, p. 477.

( n: `61- ý,. ei a; IvI L. ý: ) LIZ lys"º,

'; 1
ý... sJ ý,95ý " LJ c. T.;,. ý,. ,..,.,.
all I 1o l I `J
al. ý;s-WývI uff: rl1: ý: n ý.yJ äß..a. 'I ,ia. %.zk..ýju
,
J i., LIy"LI sa J: Vyn.,,, n; 161 ß,
a1. ý-
.i y 4e-6
J., j6 L tom.:,du

" It+Jl; äý.,.J I'cä;.,,. J(, ICJ I

 (42)

(25) ý. 16, IOI.

(26) ibn Hazm, op. cit., Vol. 4, p. 479.

ýº. Ij Is (J le,;r1 I LU13ä;,,I v UALI L'J % 131 ) ..., J W- aJ9a. 919

.. -,.. J..,
UJ lj t.; 1.9Llvl, )ILIj 9'a:
a.. a. b J äý,,. "I .i sa
r""r .
X.., I l: l"s I J: IJ lL äýI I a. a:
. a, ycc1::..; ; .i 15:: ý1 ý.: ycä, ý, r
Iü lS' 3 L.,
' 1'- IIr. ': c 4= 91: ' r_r s>9 atz y. a c ._J y_c ,I erlas,,,yL

(27) ä. 4, I -6.

c-
(23) Shafi i, Risala, pp. 129,247.
iduslim, op. cit., V ol. 5, p. I15.
ibn Hanbal, op. cit. sVol.
5, p. 318.

I J-., ýq c I9 U. c Iy ":
ice- 4..1c a1JI 1,., di I J9. j is
,>4 all - , Ls:c ,; . s
y,: . r1,, y ., o '"ß
19ä; l. l> :. 1L 19cä:... ýº: ä: 1. a1ý. l 1. J It ; ý...,.
cc X11 .s. ý;.! y , ýi.. ýS.
(29) Qstalläni, V'o1.7, pp. 20L-14.
oD. cit., marin,

(30) x"24,2.

(31) Jassas, op. cit. vol. 2,0.130, Vol. 3, P. 316.

19 i> "J L"sa: '9 jlJ jILI äUL-,.. J 3j 1yo Ls, :. ý.

,ýý; C . .i * . .3 ý. >
J I Lij li lS Ju cc %L,,,.,c'-"J 41J
.. .iäyIC.,.;
I:.
I aJ-.J I är I :, j 13yß. lS W
.iJI

(32) 1.4,16.

(33) x. 24,2.

(34) ShafiCi, Ris31a, p. I32.

1L S.J I ý1.,.. ý. Y! aU I sö Iy ý>" : a1JI Jp.. ý J99 u ý! -

,. . ý: c
-&> J1 r6J, JL,: J r6
(35) Jassäs, op. cit., Vol. 3, p. 3I4. I. JI ý,c s3ýll,
,:,
1I äJl.. c
ýy .. iy ýv
ccý,yýJ IyaWI., JL-. JIyP6 JJ - S,J LJIX,.. aU I
- .ýJ
wß-l JI )U 1.9): °J99
.
ark atJ IsI `1J 44i jI
L'I LJ I1.J ILL_,. J I
 (43)

(36) Some of the Muctazila and the Khawarij do not recognize

the 'stoning penalty' on the grounds that such a verse
is not traced in the Qur'an. They insist on applying
the penalty which does appear in the Qur'an. (24,2)

See ibn Hajar, op. cit., Vol. 15, p. 127.

Also seeJassäs, op. cit., Vol. 2, p. 130.

(37) sh9fici, op. cit., Vol-4, pp. 27,36,40.

ibn Hanbal, op. cit., Vol. 5, p. 267.
ibn Maja, op. cit., Vol. 2, p. 83.
ibn Hazm, Muhallä, (II Vols) Cairo, 1352/1939, Vol-99 P"316.
Kawthari, Maoalät, Cairo, 1388/1966, p. 81.

(38) See p. 42, note. 35.

(39) @"2,180.

(40) @.2,240.

(41) Q. 2, I33.

(42) See rote. 37.

(43) Q. 4, II.

(44) Jassäs, op. cit., Vol-I, P-193-

.00

(45) Jassas, op. cit., loc. cit.

(46) Q. 4, II.

(47) Sha. fici,, Risala, P-138-

Z%:
a=-, 19`,.. r° j1y_-.,, j -u Iu=>: - cz u;
-, , 'ý" ,yI
"LI 1- Ls 1,
"Ll L' t.: Ig.J I
u

(48) See Text, p. 72,1. II.

 (44)

(49) al-Sarakhsi, op. cit., Vol. 2, p. 69.

(50) Q.4, II.

(51) Q"4, I2.

(52) Jassas, op. cit., loc. cit.

Shzfici, Risala, p. 143-

(53) Jassas, op. cit., loc. cit.

c-
Shafi il Risala, loc. cit.

(54) Q. 2, I44"

(55) M.M. Dak. libi, op. cit., p. 204.

jo L.;. U 6 LI.; I lb a.9 w v LS P. 1ä, I (,,

.JIä. -xi - yi1. ....: .iIyc(; y

"-uLL, c 1. X" rII tw. u

Also see Pazdawri, op. cit., Vol. I, p. 306.
ibn Hazm, op. cit, Vol. 3, p. 362.

(56) See p. 39, note-72.

(57) Q"2, I44"

(58) Q.2,115.

(59) Q. 2,144"

(60) Q..21115-

(61) Q. 4,23.

(62) Ibid.

(63) Q. 2, I15.
 (4>)

(64) Idälik, op"cit., y01. I, p. 151.

Muslim, oo . cit., Vol. 2, p. 149.
ibn Kathir, op. cit., Vol. I, p. 153.

(65) Q. 2P115.

(66) The K. al-Maghäzi, (3 Vols) London, I366/1966,

al-Wagidi,
Vol. I
, pp-395-402.
ibn Khaldün, Tdrikh, (7 Vols) Beirut, 1376/1956, Vol. 2,
P-772.

(67) See p. 44, note.

-)6.

(63) a. 60, iz.

(69) x. 33,52.

(70) al-Sarakhsi, oo. cit Vo1.2 75 .

., ,a .

1j'! ) L, - 4Jys I Ui UI,,, 1I JJ ail ý

Ur,
U,- L -; 1 1....:
JI
l_.:.sJI C', a: 6 du I all I L.. y is 4-1-; I di I
rL,,, y -. LL",
1.9 1 I L; L Sj'I `J I ;.,., l: L-J* I
-sap t-.ß,.; uk-- -Sib aJ
" ý, L-SJI J,,;,, ,., UJ I
It is obvious that al-Sarakhsi. borrowed this idea from Jassas.

(7I) Q.33,5O.

(72) Ibid.

(73) Q. 33,52.

(74) Ibid.

(75) a.33,5o.
(76) See Text, p. I24,1.4.

(77) See Text, p. I22,1. II.

 (46)

(73) Ibid.

(79) See Text, p. I2_3,1.5.

1JI

(I) a. 3,67.

(2) ;. 47,4.

(3) Q.9,5

(4) See p. 24, note-67-

C5) Q.4, I5 .

(6ý See p. 42, note. 23.

(7) x. 24,2 .

3) See p. 33 ý note-4-

(9) See p. 42, note . 35"

(I0) Muslim, op. cit., Vol. 2, p. 71.

s
ý.., öyý.,a1I 9-ý ' 3 k
a.. aU IJo 4L1JI J? L ($ J l's I
, cs' I`mo' ^ý ist a1J .ý.c
4 4..6 L J- : I',; J 1
f'`6 .
c3 `,W LI AA- äXLJ ILI., I6; c L':,lc ), j I
Le
a! J I 1ý 1 öd1,9Jöý1., I L. Is Lsaýc Lý : lý lS ; ýI
,S3v a1

(II) G,
Shaii ikhti laf al-Hadi th, P-539.
Cf. Text, :). 699 1. I0 .

(12) Jasias, op .cit., Vo1. I, p. 526.

0
Shafi1, op. cit., loc. cit.

(I3) 1.2 1233.

 (47)

(14) Muslim, op. cit., 1oc. cit.

6
vý : J
s ýySý, L L', is G a.U ly,, )
- y',

(15) Sh fici, op. cit., PP"540-41.

(16) Jassas, loc. cit.

. cit.,

(17) i,
Shafi. op. cit, p. 534"

(I8) Shafici, op. cit., loc. cit.

Jassas, op. cit., Vol. 2, p. 177.
Tahawi, op. cit., Vol. 3, p. 24"
00

(19) ibn Hazm, op. cit., Vol. 4, p. 456.

c oý,.,,.; r, caa t LIe. ^_II Lý;

ý.,
LI

Cf. Qurtubi, op. cit., Vol. 5, pp. 130-33.

Also cf. al-Khi'i, al-Bayän. fi Tafsir al-Qur'an, al-Najf,

1966, p. 333.

e' Ld' ýý
(I) Q. 4,33.

(2) Q. 9,71.

(3) Q.8,72.

(4) Q. 33.6.

(5) Jass s, op. cit., Vol. 2, p. 226.

(6) x. 33,6.

(7) Jassäs, op. cit., 1oc. cit.

.00

(8) Q. 24,58.
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e
t_ý Jý yI l. j 16130 f-- 1I °r ýä_, l°e" a:y J Ic
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,._..,.. rý1 J

J11316--yJ 35 Iý; Iý l>Irä:

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a) ms ~ý~
b) ms jut

c) ms I a,

d) ms }l ,.

e) ms aJ I
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6v- 14 Iöi. .
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L-J irUS, Iý., --iJla. vI)I>l. S aroJL I

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(3)
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aý. ýr vI

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a) ms above the line.

 (IA)

LJ 41, ý L. J1; 4;Isrý.-,:i I. I L-5

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4y

1ýd1- ý1 L-I J, I ýý bL ý-:

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o etý

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(5)
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bUI.. tzij Lam.. ii
r_ý.. 31 _ v. ,..:; "ýJ aJ

a) ms 1V

bý ms
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) Jt1j

"bl; w, JIyä! iý Jiý,_,R;

9, ý II iý ý
ý.,,,;,, IýI I,:,I ý; 6J6 is
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. 9'c cý . . -I r,

' yiý, ß;ýr 5

dJm. uA ß'r.1'

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,., ýS . a;

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L-- dJ,L ä..ýs...
(zo)
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(II)

a) ms ?4»
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L-ij 1 &JP ýrl 1 I IYi I J 19 1I j, J I, Jß9 £i

.> .s -u r, ,x. r6 'r

a9 dJa. lJ I JIýI }lýý. J I

Lsj ,C,
b
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(12)
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W)
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r, r
(14)
c Iý1i; L
lS a; 9"Lf: Li
ä. lc IýS;
LS
r,._; sec -. r. F.;
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ICJ iz ýJ I) 1 Lz. &4L ;, .-.ý.. J Y,
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(IT)
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s .zv1",
s

L1 Iý,J I i. J I/I/ IýiJ I);,, JI ý9'

ý ýtý , y. . ý

a) ms

b) ms ýLJ
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djs IL..
ij I Cý9 vII isa ark Jj1 I °j:: r'
. t.sIC' 9
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I9 51

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ý ý.. ý, s'

a) ms iLs
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s
L4 LSJI L

z--y% ý. = rS 1! u*Il; JW ZUj

?-: r
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a;.

J,; II l.. ý. J9'ß

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Js äJ71 I L.
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r. .UI1 .3
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lyrl I I sl, yIcä,. 1, w1I awý:i lý k. iI iL i,. l 10

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I ii *c-ýI'L. AIx, 113 J 1 v. e äi L5 j-i i1 1

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; L-i IjI-L: I
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a) ms L

b) ms :. I. 3L1JI

I
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(4)
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Lx. J1 J1 aclC 1 1 + ä> Ly1ý,, is: a; I ;. li

fo. I2 0b . a.; sa
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(9)
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a
1$". " ý1 L2;, all I i_y. ; k
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0 r- a

LJJJayiL,; j i Iý,., ä,ag. JI U-J 1

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f{

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l. s l: w ý v. Iý 13- j L; I
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uý Js> I ä;. IrI,., iL'I1, I L.S as

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(17)
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31 _

a) ms above the line.

b) ms :-6 ýJI
)
Cý ins zuýj

d) ms

e) ms . ýý

f) sic.
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W"

"/ n:ý / I' Ial:. 1II, ý; I Le Ijr a., I az

ý
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1. I ýº: `J a: i äJy LF-,° `, L') : 1L. aJy'

ý1 _, plc r_-'^ý ý. -- °J
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l y: yI ý(' `I "c aýL.

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LkyIä. ,1I , w. f.

"13r. 61 o,U I
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J I, JI ma1,
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fo . I2Ia ." J1.. r I IA1 ä.,...> 1..,"sI I a, j; W 1. al-; j JI

v

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j
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19 L L Irsý yt5
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b

cI%11y Iý-S y1 Lr_ 194 9ö Is1o 4Jy IL

scs
19-----'g^° I a. I Iy_l.,ý Jam, L.. WLL; u9i, u
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Ls-
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U') 1 0.IA c, 6 1....

"s') Io JU

c
r- I L C-" I
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a) ms above the line.

b) ms C, lsyýf I I
oýjS, 0>9 6JIJ L'°1° J9
but cf. p. 28,1.9.

ms I
xlý.
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3J-.z a.

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ä;. JIo !Aý:,, ` Iljr" 6 19. :J6 I `1Ic6, /y/ ci3 Ll,
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c-J I,jJ
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a) ms &L i, but of P"49,1 I0.

.

b) ms after see y
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c) ms J-,.
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d f. yIý,,, I it vUcal:. 4 .yIJ? °

ýl .

LS 4,
J.
WI4i,:
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c- i- 1, a:y 'tu 3

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ý;,,; ,; 1;

I J3' A ai L'`..L4: L' I ý! I yI ELI 5

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y yt 19 L'ý.
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(sue

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ate, f5. ý. .110
(3)

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6cL l'J ij &L. 4Jas

11
11.11, A; 111. J ý a+f1 : l; 1 dl-*- rJ
ii ,ýct4,1 y. -*.

IS LIi -J tJI' ie J is WI s 1
dl-, ý. v L: ýS, alb I. vU

a) ms

b) ms
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I ý u9 "1 I "I L a1t.. I x:ijc.:: 4 IS J--. L

co tv' (. ja c .3ý v 4.s

f. 's JJIC; s` J I ý9 yyta

a1 Cya,,, ,,; .ýa.. y1
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Wsc

a...:c 1aä.,, 'i L

j" 5 ,A
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" "4 5

ls9 I IJ / 4J s w, 11jIrMJI t1, /

a19sy ý.; .1UI ýS .ia: .y jS4 ,. r uI ?ý9x:

! I, IIy. l.,
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d-P .. a4-Y JS. . ci
(4)

31 J9 L':, :r cýLo J9ý5 uuI l: JIß.,. s1 11. IyI0

. _ 9-Qy v. ý

L-JI L ý3 Li"" I +
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4J.,_; tIy,. L.
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(5)
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yLI° I I
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ß.

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j%% Z^ =s ýr_ ý' `l+º. fir, xar L'...,x9:

cs-h-ý . y "c cý9-ý 9-5

wr

Lý1. 13. 16 / LAS LJ I° ,JIr lw j 1:13 "/a. 9/ t...: i

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a) ms x>.I
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y `ýý.. J U "I AJIj

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". W> a: a:c
ýs-rJ 91.

U 'j jJ I W oýpJ II ia
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a) ms Lsi

bý ms
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's}JI! JAiJ II i+a(i a: I c `1LýJ ai 4! yjL.. I :ua aJ

ý ., . sue' L1 1.

3 J3 L- 1.. 6 131 J 13 9LJ I 1

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utý v.; .3 , 41
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4__ JL ýJ I i ýý"" Lis a:. d Iý I li a.; **Ja:s o

ý. v9 cý v ,ý .

J-3^- 5 15 e'! I 1 i.sa a 1,11. a 'I lam,

Lsrj ,*. . 5"o.:.

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p L ýý'
e
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rý , , y.

a) ms Jy Lzri

b) ms

e) ms Li

d) ms

e) ms rye
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ra s i1 II 3.J IjzIlk5oJ Iý iS i11 0>ý 11 1 ýl. l ii ä saISS Af

`s,º;.. ý. , , , ,

9 a. lC J l..lýti .. ate.; I
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1:,
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_iJI " Ir,
pý. c

äsaISS1Iä (ý1! I l.,ý 5li ý" ýý ný9 ý" äsaII5

ýy. yc . cr" cr_ '`ý ur-t-'' 9 vý a.

n_ ý_,-s_>ýSa isa ö ä, i1ä J-1) I

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1 1.. 1J 'l l3 L'pJ L" ý.,,s, &,.. ýJI

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La' I Iu1 1 J, j j lr,, IJ tu al l1

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l"; JI... I I L'., 1 1, x. yt iJ ý9'r L1

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ba

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iJa; 1{SlI 1:,, I. s.l ,,..
1.71

fo .I23a. J1JJ lS 131 4, -3 1 isL J I1 + 11. J; UJ 1' 6

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1 w 1ä1ý.. .J1 C3 11I1T.. ) I

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abý ; _, `U .i lS 1 31 c IrýI I
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`r ý: ý rSs ate..
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4WI J- i, YI lr Jtý i ýI I isa ý; lý I YIý,..

-i ýs^Z ý' ýr , ý1c '"ý,.
(2)

as :ý l'J I ý1:ý- I ý.,.. > xi 13 1 lý, ý! I °-t J I I

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a) ms u,

b) ms after see JL,;,

r)1S)I "I

C) ms Lt

d) ms i (-
 (ro)

Ja GI I> ýj ýr Js; I
TJ

F-I;:: I`s,. - u. *.:J I r' Y 1, j iý.j I at-

'yL5 C) ýI ýý-'^:

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(3)
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+, w i 1,i. Li 16 ýý,, J -1 Jt
o.123b. Lj; -,,. '-p6 :,u

a) ms a. s

b ms I
tilc ,1J

c) ms below the line.

 (ri)

:,c IL =`! c `: "ý' 19J

Iv J Ij
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ý..; r. . -4

I 1
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9-sa

a) ms US

b) ms 1J1-.
1. but cf. p. 4I, 1.4.
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ejisS

-I- `J I. ua y yI s' 3 all I

ý.
a..
I J `ý.: J L JIya;.,. I 11I ý
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J Is 'J I J. J a, WI
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1. ý61., r ý,: .)

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I Jtý Ii
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j,44'9 r.

s ý>.
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a) ms after - '` see 3

b) ms y
.:;

c) ms csltJl but crossed out. of. 1.13.

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a
c` Iý JIL I aJ U oýý.
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a) ms

b) ms : -19yJI
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j ý. 9"L: JI 1 ý1.,_ II a; rg1a...1 ý; lS

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1
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a) ms aJ=-sL

b) ms

c) ms

d) ms
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l°r`° JI°L. L". ýo" L1 Ii A I. i s IIy

9Ji° ýJ ' °11 v° C "ýSJ9J I ýýs ý..,

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a. 3 S4.JIJ lý l: ý.L "1
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plc j. .,.,

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1.41
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9 I I :,.' . a: ýý I as II LS öJ1. J
crý v cý--? tR asaýSrJ . ýýjä, v ýY..= a; a.

L 1S Ij a1 - ,ýII. AC., Iý ýaa..

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p.:.. L:, ý., cý ý, o, je& . j4

J10 JG 'i- L" I7

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ýý

Li r- °.S} L 15 ý. l:J I ý; lr., J, J. d.

ý"r - -r,. fi.

ý1 yIl; 1,,. J, il. S ImoyILSa. IýIIl:.. lý oýJ Li J Ai I C.i9

ý+

J i1ý. ýl ýsýr. yIL ij 1..ý:.,.

yý y3 Imo.: zo
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Jýý 91 "s: . .a;

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i-& 4,99 VI" y, "Li 6J .s
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J--. ý-+
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Jy$ . cs' ,ý ýs .ýL c9

IS L.J aý.. I L J. a 4Ia., vom, vI lam- l4 a.>>9 J lsýs Ia Jay, L4ß.1I iais aJ
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a) ms 1...,
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C-UJvI L",,,, 170 a )I 1 `11 6%, )u *-"- a; 1 `1 I Ir '..1

. ) y> -1 .: a;
-R.;. ý.. .; L; cs° y..

i l:. L 1 ` ýº-? ý I Li
d4L- 4. j. ý. v*i " jy, _ `1

f4 JI ä1.ß.J1, JIý. JI LSa: I l:. is l.: i J

j. a,.

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r- 'ý9J' Lrk
J.

D 125b.

1J iýr°r yI aJ U t<r°r yI-! J psi I

1-L---. --1ý,; ý-r.. ý. vIU, 3-%5 aJ

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f'ý"ý' r_-'ý: *J . .a9 ýs

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a) ms
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'j- 16 u I
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I v-ýy-'9-J ý1; L4y4. is lr1. 1c1 I is Iý I-v,

f ruý'ý°! c v v-y-ý ß. all may;.:.
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d LJ I L. 4. JMI jL-- L alt, tc `U J ;:, 1,*j 1kL I0

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a. ºJ ý, ". ý,

y4 LJ 11)4 L I y9S9° .
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a) ms missing.

b) ms ý(ý
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"LJI L. JJIf ateI J' L,,:,JI1yp1;,, 1I

:-I ýJ . rk ýJ

` L..: yIo isa IL1 la,: a UI ý9 'uI J. 'o

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l.: L. U 1 7
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cc all i Jtýý L ý... i `JI `JI°:

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jP 3ýJ I 1I
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a) ms above the line.

b ms ý

c) ms after ý: C see 9
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- j. WI JAI

a
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a) ms airl
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a äL 61 I ! -; '. -j It lä;, Iýc, ;, C) S--1 1/-4 a;_ w,, w3 4---! -L o,,. I L;

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f xý L: j 134.1, i- L. 14 11 j, 19
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b) ms f) ms
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(25)

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c) ms missing.

d) ms ýL
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ms

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c;- Jb lJ IL i) iJ I
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s°
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(40)
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cb
z4 4U1 Jý; !. tSý; -J ýsS%

a) ms

b) JLS
ms

C) ms ý. ýý
 (II)

fo. 131a. lij IIa, t.

ý Iý., I ý,. 1I b li. )yi

lA IJ5,; Ib!. IS 1 J Iv 13 a. I3 j1J I

9-'" Lr-k ° -p Lý-'-J uI Ls ' u a: .3I,, , ý

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(42)
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(43)
älsy 1ý., d- Iýs.
l I Lilo ä_., sa1ILJI / 3/ (4;
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J
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is li

L-*.A 1y ýý.i, ýI Cl : ' Lt; 6 '-ý, a-1 3j-iJ I aJ J-s

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cr LSý,I 1C. U1ý ze r Iý;. > 11-W--9 ä, 1'ß.

I 1 `, L ý
9% las.. I0
üs

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, s
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L a i. l:. L" x. 9.1 11= I c 31 c a1ä: ICJI' l6>

L yý Lrk aJ o ü9? ' u r, di Lc9
üs

ýýýºr ýJ

JIa: lI I L., J IJd `J

(JJ

a) ms ;W
 (lv)

L. ýJ
ýyg, arsJ so 66a. ý
y a^s

lS ii 19. YI L.,
v . cJ E Jý ý- aASý,.J äs `J
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(44)

&tw ä+ý.
"sý sgigJ I le 6 äw L> 51I lo j 1. L
plc ý. .ýx, x..

L,: SIvJ k. LL L-:J 1j 1

d-U .ßs C. L19"d,
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l IS I Iýij I l5 3
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sa9 cý+ u . c) a, ý

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(45)
Jl; aJ JL IWIL, _ 5U1
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(46)
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(43)
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(49)
vý : La:, af99 (Irýc äý., I ý,. ý,...s: L I> I
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f_: -,, -oL.. y -,r._ ýJIý, . -w gis) " ßs. -- dj"i,

a) ms f. a, ß. 11

b) ms ,j >9J,

c) ms missing.

d) ms r_s
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ýj ýy-ý J,ýMj
L.
I IiIrI7. U I
I .
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gis---' ,a, 1' ___I > s .

I-..
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(2)
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,; ýý riý .ra. v9,1: ß.;,

I3-jI, I, 1Si) : L J
dj3L ý! 3 i ILUJr,: JI
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(3)
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(5) (4)
(I, t,,:, cJ,j JI Ujio
r'"ý L) 1-- ," a1.9,Iaa. ý,. ý1
(6)
Jq; ate....; (ý.. > 1, a; lS öIýI iJ I 136) Lam,aJ,ö
.xa; r. , sJ
(7)

ýLo,
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C

ß. 1JIö" ý Liý.. lý I f: 1,,.,

ä_.

aý ms
_ý

b) ms ý..ý.. J 1913

C) ms
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(3)
L, U I
a. `. >ý IL ä. L" ä,ý I-s,; l IrW IaiIU 1--3
ýr-" ýJ ý':, ýS ýh; yI ýJ
(9)
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1ý a_ äß., L IS 13 ' Lý.uIý, l LJI36 aj-. jt

. y o 'Sli

aJy aJ JI ISý.. I a.>

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J ýl.
k aJ yI': Imo;'Iý. J li =ýr y I,
'r. ," s' :'L5

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JIj c, a I. JhäI
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a
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, csý x5-. , .ýl., Z: '
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L-l 1.31 L'..;.. ý wry I 1. l.. sz a.> I i. LL Ii sß. 1

ýI w .r) -. üs .ý..r . y

15a: 1 L'J JrJ aJ y

-3 VIA ,zý.,

a) ms (,..;1

b jj
rns
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Jx. Ie J> I JJ9 IJI Li L., JI L. I Jý9 IJIUbjIJ1 I9

ýaý 1>
. ýe

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L. `J II` rr 9"a ýý ý ` LL La.:1. J

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9 ý ,,, 4 .9I-l. -. `, ° ýs ý 1.

y ;lb 19 aJIsI, äsý. JI

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ýv

JI :ss ýýy a; L.,,..; I L: 1 ää_s..:,, L 1:c L

.iQ tee.,, 9 ,J.,_J .

j 10.. IS 1)9 Imo,, L5 1J1 6 L/r, ý I/ 1

rß plc -. --a 9 di u C1., ý,., :. 145 4s,,.,

19a-ý lWJI, l_, ý, x1 19) Lam. 'J

" ý1 -, aJa"sgam,;:
.iy"a, arý::: J
(I2)
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.. :j1 tS 9rs " a.,nJJ üJ ., aa, ý, _N

19 111Iyä.: IJ i) J ugI O
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(13)
.v

aL1 jI ý9ý9 s !.1J a_ aJ?. 1 J 7119 J I/ a .sy/ vpsö 19 JU,

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t. 1 )L lIJ 3 3'119 J I S.> `! "s:

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`mss Lroý 9Iö .ý .,.: ýyýr a: aý9J
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`-4. -.: ý, I ýJ I .sýJ IL sý J I Lis (X.;..,. I J.. I ýyJ IIo
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b
fo. 132b. 1. sa 1L..... l Q.1 all I ýý., Lfri;
r' ý? '9 rc yI

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J,,,.JIL. ýý
C

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ý; L4;

a) ms L'41cI

b) ý---W
ms

c) ms Ly; lS.
 (YT)

" ý%: au. l 1c a. ý°-i.' ý ýI I

ß,. vL _' `_'":^' ý9's cJ (.y jJ

caJI i9.ß": JýPx., JI

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(16)
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(17)

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rý

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ý: ý..
J .3 Incy1y 4-J I J"- 1 a: 1 S1, J1ä 1y J lam.
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(27)

(26)
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Lrk `. o 'tu
(27)

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Fo. 13 3a. L-SJI ä,,;, (n, ö+I.J I +,; 1I,,.. J. > I ;dJJI
"; ýs sic 1,. ,iIy
(28)
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.. ý,

ä_: 1. rim. uSi u u^.: %V ýy-ý ý-'° i;

vom.:c ? ' vv ý) X '
°J5, Y:.
' u9r " X11

a) ms j;.,,,;,,.
 (Yt)

(29)
1743w ä: wI -' wIä. 9 l"s,.C", I `.?. y (a (W 111..
Lsjfý. rMý Lrk

P aU IvY I) :J Is" c t, f-"' Iý.ýJI lC

ri; r.: ý,ý
(30)
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J, t1I L L"JI L,.: (1I IyäJ I fSi. I u:.. 1.
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(31)
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Lj; 5'r>j 10
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(32)

II£ L, ` l, yIa ise ý+ý.. ö)1.ý,! I Iý Lb

ýL- aJpr5 Gi ý,
c . a: .'s> eýa

6 I-tý 134:..;
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(33)
ej 10
(34)
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.
"ý-ý-'" -a. yJ

l. -'JI
d
f`c J -d 1ý.J 1 JýJ 1 isa t J lJ1ß. 1c ý:... >31 J1 `J a: 1f
u' ýr . .:

(o
j" Gam.. 13 l.. JL1ý

ý-y
a) ms

b) ms
`il
c) ms '5

d) ms above the line.

 (yo )

(36)
13JS 13ilk. is I1J13 ä_;ICJI) : 1Ll- aJys!U 35 9
. S; ý.
a
J `Li -I) t1ýI .ter l.ý ate.ä:Wý%u
r` r_ -ý ,

; Lam;3 ate jL; 1 ý, >ý, a1l. S 13 o-.: ý 1Ip,.. I isa 3UJ. 0-- u1
-J C.,,j .X. 'tu

I Jam.. o J'JJý k-' I Li Lii

V ,-J, 1, ?1L mi "
)/I tJ7"= Sys

b
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J1 ö L, J I ä L,
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JpiA4J c1
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(37)
r .ýi.
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Jb-Li aJ-JIP Ieý, n:J I SIýJI aýlc .;.JI ". ä 1!Ic IQ Jar J-9 JO
JJ j5 .iP
(38)
Jc. JI I I ß...
1d c' X.,,,., >J 1 J, :g, 1ý.i} w: a. ;, a. x1 L, 9
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yIIr! c 1S 1..,as Jý iL 4r
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f JI (ý
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Jp0. ui-u ný- '»5 .3 -W s J.

a) ms ) I1-JI

b L*,%pS
ms
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I
l., 1 t--: j I ý, "I- I..
yI Jam' ý3 ?`ý ýs °? tý _j
sý
114

LL,. I'! yL I1 UZL-. a.

ý a- 13 -> j -. oil3 Clam-I __. v1 5 ,sue. ýi

J 1;,
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L. ,rI, l: lö lJ J IjöL
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1 b. sa; 1-, -11 111.4
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j jWI ILL
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d.

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31 Ji Li JLJi a. z i,. UJ of r , zo
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I, JL,

Iý 1. } 5ý. 1I L Iiy. L.: c I L'ý1+ V 1.

> ..:.! "s
fo. ,ý ._, > .I. üs ý.. .. ýS .il.:

a) ms 1J6
-

b) after L see
ms

c) ms a-,
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I l'am'°J9' ? '" yIöa, Imo.ý. ° -L ý'r.' I =ýýD vy

ýr ý) " ýJ Jý f. .ýI, -ý 1-F-ß
(39)
I J, kI. I>JJ IsIiJI
L4ý' (`IJý. JwG ýJI ýJI ý rý? 4. , o'
uýJ-ý uý'S
._ý,
a
L 4,; Jr 15 Jr, L-,L" 14>-
(40)
sr} 11 4"J 1j 1 J, J C,- ö ac W 1ý, L" L4ýCI3 ;I
ýýS-W ý, J-i

L
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J1 ý,:.. J ,. 136 1JIJ, ý L i ia ; ac J,

,,; r- LS -s-. 1) cs+..

01aýý 3

L,,,JI r5 6J66

(41)
J L; j L z-, 711 L.: (} QL
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" ý...: J ý-ýy_. 1. yI.; l. ý aý ýsý9 a, :, LSa

ýJ I
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J 1ö Lý u9l" y 1:.. I ýýý IIL: y aý.?J iI iý jI 1, .JI? ',,., I j

tt,; . plc ,ia aJ

J ti. vII, U, I aa. > L Y JIr. > ý.J Iul. %

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fo. I 34 a. I ä. I I JIý; +öl, JIL: I

ýS ýc iß, LýJ ýr vom; ý

a) ms 1;ß,, JI

b) ms )I
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(42)
UI L6. ,LSä.. ßy. ä_yI 4;.
a (ö a
3J-.. 1. I, JS 13al> 6
v*. .
a
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L ii LuIIo
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rsn -w ý .

a) ms ýIyJ1

b) ms Ln

c) ms dj9L- li:

4J. iL
d) ms
 (vi)

I iS I iS yII. J is (, xý.I, L:.,lb3 1..ý.. >

, , (j,

131
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r,

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r1_, U1I Jc j, U;JI °y& uyl; ýs>ý W
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L- 3- L t9-..:..J13 t,,,,,U 11S3 Llc J.: -.i, lliJ .3r u' Lr.
is . " °s'-3

: JL J9Ut-Lp- ,U1ý "W I )L I, Jam-y9zo

(45)

""u .1Je- L,- J

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(46)
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(47)
" Lt--i I I}1y. t,_; L äL;
IS-6
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(48)
I:., L. LIS-, I (ums Ij L" uff: I-,,` vor I) JLý.:, j
.SU; ,=L :, _ '
rs'. crý u " ýS a1 3.a; 3

a) ms ) above the line.

b) ms L;
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(49)
w I Lim j I) JG
ný.:1J cýS j as ä: `l II
ýý, ýJ fii--; vI rlc y &.
n1J L.U-! :),
(50)
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ý; rS.> .
.,

I( I
J_-1J L' c," lx, I) L-- dJ,i
uq:. ý. j "J sue-
(51)
a
yI -uI r) .)u:. dj;q Imo, a
- dj,,
(53) (52)
tý I,,,ý,-ý. II ý, . aý,...ýI , ý.II(, " ý;. ýs-ý I rý) .J 5
(54)
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f O.13 8b . I:* X1591 L, LyIýyý 1II aller rSýJ I l"J

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a) ms J
rJ ,,,
b) ms Jj. "
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Liar 1k y`L --j -n --L.. 1.3 --; j

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a) ms lýlc

b) ms I-ýI3
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L.:! 6 Ui IJ Jý.. J I J- 1L-J I

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a) ms

b) ms J9ý9

c) ms SL
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13.
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a) I e) ms I.
ms -ý -. -
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c) ms ms i11
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(103)
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a) ms but cf. abkam, vol. p. 271.

b) ms il

c) ms a>.....:s

d) ms 131 I, il
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b) ms after Jý see

c) L above the line.

ms
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äx, yIIý, ý..ý5 1. ä.> 1 -! I -J I `.; LS IJG6

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c) ms (... ;.,,
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ba
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but
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b) h) ms after` 411see r,Ul a_k

ms
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d) ms

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f) ms L,,
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a
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b) ms 3I jay 31
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C) ins a: f. 7 "°
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(107)
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L.. a; 1.. -lUV...,., l; L}L., l4%3iý;. Y1

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a) ms 1.3L,

b) ms }-Ld but cf. g. III, 1.8.

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b) ... Wý,
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1-113

LIvI a1 1ý,.., `s1rý.. J Irk 4J

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(II)
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a) ms ?"%

bý ý,
ms ýý

c) ms Isc sr

ms 1liUI

e) ms
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(I8)

(19)
I L' >vI Wi; 16 L4_I oy ý'
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JI LýýJ: I, L JI; L.. 'I k Y
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ms ms ,i1ýJ1 cf. p. II3 1.3,

ms

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LL C.?.
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l: J Iy ärL:.,. L I IS W 3S3
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a) ms before Wl see L. s. but cf. p. 173,1.2.

. yl

b) ms 1I
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LJ Li
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aJ d.> Jt
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L I aß; yIc1. ý. .
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1 IA, ate.
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f _,. Lr6
(I)
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lý. Li L 1,

(2)
L aU1

b
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before J see L
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b) ms C.)'
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0Ij. J 1 ä}y. Lt; 1 I,

ý, ß$13ý:,.

aJ I a+ //ý. J. °-.1c a.UI J IuIaiI

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iý
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ci >. r`. -lý
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(io) (9)
Co 145b. +( is u I. Ir j) yI3,,
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'L

1 J5y 1 15 y a: sý
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ý%JS L-:, a1JI

(I2) (II)
; ý"+ ýJ L J 1c I J IvI i:. i IiJI
r. .. ar all LA. - Ls.-; ýSý " ,

l amd, e-US &-. i; Lys, J ý 'r_ ''

6. t" ý-y,.
,

a) ms ä. ' l
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(i4) ('3)
uu1", äc är 91(j I; SJ1jI yaý'ýr ýL;c-" .>. js,
say. )
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(16) (15)
ba
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l-,. J IIa. UI J1: li o xy a'ý 1...: r ýL JI "L J III5

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(20)
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(22) (21)
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ýyJ ,ýi 1. . ý..ý,;
(24) (23)
( o.1JäJ1 I IyI I `, aJyÄ. },..: ý ý1Jj: tbý. 1t v; J6, I
T.ýJ ý) .1lý. eJ

"ä lu L6, I0
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,
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Lk Jz ai 1Si1 LJ S 1j£ 'J1 L*iLS __

a) ms ýý a;

b) ms uVIS,
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rk Z,

1 W. Jý J6
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l.. szra lý i JS I : 11. äß.J L ä:..,J I -.,.: ýtaJ1, v ý-9JI

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., .ý. .L s . -i vI

a) ms I, ýI JL
e) ms
b) ms ýp, ý:.e1I f) ms a;

c) ms a. ý-y) g) ms

d) ms y below the line.

 (ITA)

(2ß)
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(29)
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I i(ä. I L4.ä' Iwa.
" ý ý., c. a ýý, . cla,

1 4-i U'I J `J I.,;J I J I Jyýg., S1I I lam;

I :: J J9'% J J, 's
a: (lc o Si iý-,..; rl: ý;. ß,
a
ä 4: I l. ) aJ (1" vuIYa; 11 Ial:.
ýý" ý...:. y_ý.,
(30)
( ar 1 L4. -4::' Lj J, Iý1 ý) Lam:,
4Jý 'lll .15
.J
b
1;
aI JýZ A
1_*. 1 J

dc
ä;,."J A; ums.JyIL;. L.
".5
e
" ä_.,_J Ly1
f

" J i ý.W;9tiý,
4;., r; ;>,.. w i jQ J6ý, 6

0 . l-SJL ä; I I lc 13;.
I I i.1I 1.!3 Iyä;, 1 w ý1Ial J_,;I0
f -j ,; ys . plc ,

J i1 lam, x; LJ I J; 6j6,6
ýs ý.

L:J I vyS, i X11 19Jlam.

1 as as L.:J Ir aä, aJ
. ý, ý,.
M

L S> 19 1> I JYJ II IA l{ ;. j

Cl --- ý9-ý- >P C. -- . 9 d,{ -a: ýý. { . tom' v

, Je , Gýý U, , 4- "'; Le- ti 0e li, jj-j ,

r-J-J c,ý.a--ýZý: ilp s--i :), ci Z) -

a) ms otý,

b) ms 1
ý.

c) ms v-

L
(1) ms

`.' L
e) ms

f) ms
 ('Iri)

6 x:; LJ1 J,7L, ß,6, J,; Lri- IJI J!WI I3 i

.; S

4 L-ý L. 1
u---; -Ii U-6 3

I le y.: ý, bS1I &1 - I.f. l l: a>9

ýi .

J1
(t, jWL; i 1
r,:. -%ýý,.: ý 1, 1,
Js%J 411
ä,.,: J 5

I Is ä.!Is I) lam,dJy I iy> lý JI Li

Ca.ý_. s all .ui ,. ý. aý..
ý,. . ,"J ,,,
b
J---. i Ictl;. ý---): L;, 4J.0 W jJ I ", 1(4 X_j I
1----4111 L1 y-L1.1. `. rý
(32)

s°ý s ,ý-r IsJ IS/ I-ý-,-W I ýJý,..,"(,, rUit+L.

(33)
(,...,ý..II, ý I t.; I) tom,1y
a. Jr yIo :ý Jyr ý: I-rýrl-w Ir' 15 I
,. " ýJ r-= r ý:,
ý' I Ir.J jio
f 9' v+ !>I. u94ý ý.9.,ýs1
-ý1
(34)
fo. 146b. uI :5 LS 11. )
L' .sI u" :, tx6 JUII
df
ýýý v1"J 1-F-; ý. /I/ a'sý. 10 isr aý,: 1 L. !U
ý.: ý ý5., -IS

" c.,.la " t:zu 1 1ý}'- I+ I ýs'. i" Y 1.

Lsi-;. :11ý `, ". u9S-- cD _ 4-.
-i 1,-SA-1

JV I
lao. IwjV,

a) ý:
ms -j e) ms
ýý

b) ms L-rt

LY.
c) ms after /-4 see

cl) ms &.,-, I of. p. 134,1.3.

 (i r")

LJIa.. lc Ji.,.,. I I at;

-.
t

(35)
U
a.

r---I I
cý1Cd1J L,- d. LS L. all I dGr LT.
üi ý1 _r - u9 V1

IS

a
L',L9
:, o

L_S ýö `J I ä> LIi Lk, 19 am. äIe im 't }li LJ I 1 J

v . y `' J cv+ .
- cs' +.

;11I I
a>ýJ ý. lc (, Ls ä, ý,,
S ý" LLAO
ý.,: Cýa
(36) b
&U I

J! !J l;
.3JJGý,

- L:: 1, I` lr '1 1k I$
41."As I0
f -+ý, - . Y: a cJ9s 3 3

L. 19 I J J5 Lt;. Iy 1 Lsz !JIs. 6

f ="_ r ýJ c:r+ 9 ýs - L,
(37)

tiJ II J
-ýA -U

6 J " 1.f1 I ö. JU iS L.Li Cj. ISC,,,äx. lS 71

4: ý.: .a. ý. * ý- ý; u ,a's

Ll-ý;
a) ms

b) ms 'h° I
 (iri)

cäý. (, YIIý, J I I. LS ; ä. J I J I jý 'I

ý_", ý, _i v LJI f$ ý. -.
ss
ä:.,.J IL aJ Jl

YIý;... I LLii
£`L.; ý,.

J 31 L. aUIJ;; J I `. 1; Ll ý,...;
_., .$J -- ý4J .
(38)
a
3JI'J : Lam,
J6
II) LsJ 5
(39)
" ý,_.. ý:,J I`L..: YIäa...r' s' cý
lS LS, l-SJL
-,

p, Jwj 15
tt..ýJ 7ý 13 IJJ,. j t:i ,
LJsy
(40)
ýý 5 JG
Lam' 'ý V7'= tJ d' 9( riL-A V- C} .uI siy ý-.-. rI L

ýý": yvILLa: is &, J1I isa lc

, ý.
(41)
f o. I4 7a. it<I
a1JIS1. I 19 v-ý ) +ý %J 11 IJ>, IO
vJl: .

äß. jv IS `U 3S Z9 Le-s
' a,
J..:. c

£ JU 9J Ll( ýy-ý.:.. y`.., L" 1::.ý.., x; ` l. `J I L"1.9 IS

-W rU usi ý% ý,. ý,.
(42)
c b
,Dl"Jli (>w. iiý: s isf).
,ý- r-A -7Z-5)
U ;, l. -J 13 17.,.,:J 1, Jsy
I-v1 uv:

coI9''
a) ms

bý ms P(,, -J) missing

c) ms C.ý='ui
 (Irr)

a
JSY is a ýýý cý LI "a,
-J

b
ß..äy jIý i- -: I--, I
JA i ý. L r, ý,.. J t.ý: yi"Uý.. dsry9ý, ý.a.. - _, psi

J/ ä1,J l

lb I isr ý, r: lI J -j II iss. 1c äýý7a1 Io iss

ý___c LJys 9 Lsi, cI. v. . L., ý, 9 .

I3 L.j I L'J L 54; IJS3 L;I a;I Lr6 3 .3"JI

,ýI, J_-u1
Ly rý r 5
J-U
9 1 J9 L- L-iý p;J

c (43)
Li J-J 1 J, L.:, y t: 1 ": 5sUI Iv 11.; 6 (v 1 39i-,. 6LI)
...9 r. rg.,aJ " .

" Lyý. ý..: , j.; äýyL Lj, Jq7m

(44)
ice 15 ( LJJ )Lam, lý-l.. lS a; 11.ß.J i ý. 1.I
. 4; 5 aJ9i rW `ý °Jý' 9
(45)
ß-w=1') I-,- J6 ý-= ( I ",, L) L..
- J, 10
rsI " r= " Lº .AyL
(46)
L djý,
(47)
f 1:,..
u ojSJI L.;I Ji'i )
ýýi, t-5v

L.
ýS ,WJI

" ý.hý, 11° lä. ý.. 1ý.: II l

ýy

a) ms LI

ms PL,.-,
Ji
Cý ms
 (irr)

y 1,ý! I ä.l y ýL äý J9r '-'ý ý-r ter : y; lS 179 6 p, L.

ý; . P.ý.; 4J

(43)
JIIu IS I l- " a.1c
r` jq

LYJLLJLLI1.
L LI ýJ LLi
LM1 .3 "',.. ß.i1rte,;,L L=6J6 Li
C) 5

ýý9 J-; J-,O'JIJILL ý-ý ýr ý; lS Y J9r

L 'J I 4w yII Jh, yI

a_sýy ,iý, it ý.,:li

a.S> I. t lý. b l.; 1

-. yA

X91' 1.. I JA ä:..,..1 L

cyi ate. ,..: y al u ýiJ

fo. 147b. 11% dj 10

, -6-6

(49)
' ll ý; ä, yi lc ,k, Jý I /S/ 1- `' -i: )l...J I ar1c ý., J i r1`ý''
. JJ9
c_. .vy de e1Ia
fý a-
L-zJ J. YI&: ýý 19 I ;JLä:.,. J 1 ;,,.:, ý:, s L"ýS3s :aJI o.i.ýo1 6 ate....:..
s.

sI, " "J r., "il ýlS I L:.1J i:.,., ILý, I k

,ý .1I . ý.

ä1J aJ I . IP P61 U-.. d

.UI

a) ms `1I aý-ýJIJý. yI o-ýý 1

r-&-
 (Irt)

9 'rr 1vLki
4.1P j, jJ

l;
0 jS 3 1. äß.., O 4; J L J' x- y
v

v1!
13 :
-1+ -,
c 11 :ur a.: 1Lu iS
9J JJ
1I is-. Jý L.
1c
a
"ý 1ý.1G SJý ý+ ý J9'ß' L ý 4S ý5. Y Iý JJi
-1° üi> ýýyýL: tJ9ý ýJ Ji'b`= 'lag ý

34 J Lý. a: is 5
J15

1--:. Lsz ? 4-*'J I k 44kL l-SJIc

Q ,ýt u ýt> cHJ6ul; ý.,.
b
lar_-'ý I9'ß. lA`9Ilam.;.
is JI Lt 1 a"sä:..J1 yý. L-SJ1 vf; Iy LS
. ýs

Ir k ýý999 ` Lh, &J I

vI ýf .s vý . vIl: ýlc . lä

1 Lfj&
J.= -, ij-- :i. 1ý,u dj j ti
r- ---»4s rs-- JL

u9ý JJ r4ýJ[UI rl, ý, ýl; rSýJI !!J I0

L`.6 bSJI ), J U. u1 4-,! 1 - I '! 1

-; --Q
. .výW. .

L IJ I lam;
1

" ý- jq x) fýI 1 : 1
-ü-i -ü t£>- -ýJ : D, q a-J-- 4-L ý-ý -ý t&2
-5

J L-°_ (ý9 Ir 1 (.szý 1 ä. I I C";; jI `" jII

.1I . ua ý.: y ý, ý5

L.
a) ms

b) L1i
ms
 (Iro)

``ý ä. `JI ä. ý,1 i.. v' .L'-x'' cr': ' äß;.S LEI ýJ
l ý.: a1JI I+S) v
ý1S

" --pi.,,,J Iz1.6 ýg, 1 isa3 I-t: 4

ý,
b
4Lý I Iw i ýi.. IG J ýe iS Jv Jyy,, lsa 4J J 6::
a:. sy f. ý. ýI q.. ý. a r.. ý, L y

v l.. ý.. LJIa. k J I ate....; L' 1J $ I:sj I eýyý i.

. -. Lc.; üs .

ý. Lc L"a.. ; °°% 5
r16

us ,91 jj, J11 it

UL

USIL, -LS t: L 1 ýý h: L,.. js-s

ý$ j4I, ,Ja; ,sk ,"ý,

Co 148a. LJJIL;;. (; ' +1I5jy.. z YI jim..J la.: all I L-S I Jý 1 c. 11

y ýJ ý1

1 c.Sý. Li lý tu 3, 1:
bß
L1 .ý `J :yI ýý v9Sý UI L.

£9ý.. ISJ I S> 1: iJ I WI ice L,, I u9 6 10

:,, a. > xs c. yý ä; uIC,,
-1c ". .

I LJ I `y; ö LiJ I }fib. 1I

.u6 LrLSs,., ýc

fc LS JI C- l.. 1I
e....;. `..; ) J 19 C-, J Lý. I
.-, r g1 a: C ,-9ä:.,.. :ý1I vý

4: L a: IY9`. I:SJL
rý- --1 -)

<<C
tJ, dot

a) ms

b) ms us

before I see 3
c) ms
 (iri)

(., LiJ. Ivy I Iy, J UJ IJIa: ALam 1 Iiij I

JL-jI-, .;
a
LJIol: L' L*-,,9 J> II iA yI Q_.
lc ; r.l
-1 1j ýS .iyä.

" lJ II is! djj l:; lS> ofS i;.., s ýi LJ 1 oý ý`s

, _ .ýa . .

U L*J ß. l6.4: 1 I. L-: III sy I :, IL, 6

f, _-

`L-, L äf.,. 11 c., a., aJyä 1jß L li J, II ä1ls. JIä. >. äJ'
3 ý, ,o Lck ,ý1I5

ý..1lä. L i ä,ß.r. 1I I J.ý b 1L,. J. a.:...I ý:. ý_ y5 ä1Y Ia

-.; LS .. ý'r ýJ

0 I,. L6L cJy; v tS L. 1. L- 09-ý'9 Lt L3

*wiL3J? ^°y Ls6
(50)
(r.ý JL LW ). ý: J.,; tý.Jl;. a.ý.. ,Jr,J. J a.ý J; Jl;
,1.,
lý. -, aJ9,9 J,,i J L:.,.. 131ý.. LIJ 1
. ýJ
(ý
J I. L*-;- L 1.4.,,..;:
t)1ý-,I 10
s-6
(52)

"i äýi LIA, I LJ a. 1 31y) 11a:.aJ3i c'!J 35 3

. .
(53)

Lysl. :ýIL 1; J L=:..;4; LS dJLJIa, J Ij. J I ut4r "I

_ ý1Ic. J;, ,
(54) b

a) ms ? v-l°

b) ms cý'"-°j
 (Irv)

I1.JIvbý, is "du9. j, JtJI I a:. L.> L. 4. JI v9ý

sI
ýJ `
WWýý

dLi d LL :ýi L)L,- 4IJI J;:- i J9J1ý, Ji ý.

a
Iý Iv I"ij L 4: JI Uy J vyýý I a,
v vIa:. e ý: w: vIIa; ý ýý ß.....
b
L. JG Imo, IU 'J
L J
, I
fS

l-SJ :JI P9j5

J J9 L4-, j i iQ J lc ý x,. J lý J (ý 1
. ,s! c r .. a_. `. y1 a; P ar ý.: v

UJI >..4
J14.

L- a.U is JI 4-1; j Ivl., + I+ IS I.J6

r)- r. u" ,_j,ý,,. ý;,
(55)
ü-+ 1, uvla.; 1. (r-ý. 1IJ j% L. l:. U c---J ): la c.lj l
c5., r. 3ca:. c
ý. Ls1 ,

9-;' 3 aJJ

dC

f Iii. 1I L0 Ii, J I JI arc JI

ir: r u u9L üIý; ý, e) ý.

ä.-J I11.5 ate.,.:. :UI I 11s'J

IvIl. S L,
ya Iij

before J
a) ms u9 see

bý ms ýJ}-3 Ai

c) ms JJL

d) ms Ll--
 (IrA;

(56-) a
% I., U J) . JI9 S ýJis L,ý, 19
.IJ. ýL.. .
(57) b
31 4; Ii`l; L:, ý.,l-SJI `L. k 1;,1ý;, J6
-j y) .
(53)
r. JI JJ: L,.,,. LIJ ý, :J) : aJ99 ý,
csý f
(59)

oJ Iý 19 I i5 J6JL,, IvIP ýl J I a. 1c JI
41J ,. ..:
d
I; SJIt; Lj; L..,`, aJy9Lis-
y). ýJ

(60)

(61)
L Lt--;;
9 a, _ ý, ,..:;
l. )
" ý1
Lam.;cJy9 la
9

äJy-) j99I Lf-:- I ä- IIa; Ia1. i

S a; Y l;, s t4.
a_ .; ,;
(62)
e
LS. I tj i. I aJy'sý1J is I. Jo
. '31y) .ý1L.: 9

4'
J9s J

fý
" ä. L; ä:.aJI

J69

JdJ:. Jr., /J/

rL ajý.. ý; aß ý. yJ 3" ail

a) ms after see

b) Wry
ms

c) ms Jlsý

d.) LJýlwI
ms
L-i
e) ms after see

f) see Risäla p. IOß. aJy...,JJ -

 (IrA)

1 al! I ý, as 11. i J 1. k JJI

ß. L:,.., r. _3 a_. o
LSJ..,

aý.
l 4t-k all I all I Jt-j °I
,.
b
a_,
1 1! a: Yc ICJ I Iýi1 II äJJ aJ I L' l; J l;
v
li
. ., _, v
d
a: JIL; W3 L" v. 6
- . 3

I J-.. a1JII I 1JIL. lc aUI ) l. s : i UJIJ6 5

c-U LL.-- J., ,; C,. ,ý9 Le.
s
Ic
&__1J -k I I
a1J rJ o dJJ
g_fe
lf I
aU am,J 11 &U I bi j I_r-., z I c,, i

ýr_. L a:.. y31. S ä; 1I c.; LS136Y1

VJ ,..

L*J y' Lt-lt- yI Lt ý 1 L-- al! I jj-: jJ--; - Jy

r_c -- -'ý...;ý. rý. ý ý. "- ýJ -v
(63)
" rJ- y 41c aUI dii I ;..,, a%-wI0
-rLo
OI I
fo. 149a. J* d. ' ýrJI lý. -, all d*) J6
r(

f1
zui) tu J U 1 ä;.,., %)19ä;,.,, J 1v1»: aJy' 4.,
c... ':. ?-. 4cca. `jt-, 4

J--> ll I I ; 1Sy L.,.. 13º; Lt-b, ä:.,.J 1. ') I

f n. .a> yJ 3": a. ,i di ý:

ý,> JIauý, ss 1. 1 au i J. V, '

aý. awl
4. . ß; M. "- ý-j C'- " ý. ý r gis'

lc I
a) see Ri s 7le. p. I0,. r1.,., a,.. aU Irlo a::...
b) ms aä but cf. Ri sä. 1T p. 103. i) ms v. s

c) see Ris'al p. IJ3.

d) ý-t but Risäld p. I03.
ms of.
ýy- but Ibid.
e) ms cf. P-109-

f) ms but of. Ibid.

L but Ibid.
g) ms of.

h) ms but cf. Ibid.

aJ
 (1z")

wiir
isa Irv L: Z; all I`", I !U ) I> L; c1 cam,.,., a7- J , 1, L:.U
. 3c - -i l., ,.,_

" ä;.ý, yI LY;,,.,;: `J ä;.,,.JI 11, a, 4J)9

J

a^; I d..3I,. usý uIey "r+ u I1* ýU a1JI :.. v. I I sý, ý; GJ ý+ is

: ý, ý; ýºJ ý,

fa. 1
vý ý.. ý. sg. aý..ý.ý.
cb

aJ 5

IJiý. ýi SUteit ýiý. -t "ý,. ý: ti

&ý;ý;ý., 'Dim use Jr L
9d

" J. aij I Ile tu 3 z-, j; WII L J. I

a19ä, .iaýJ, y ,ý
e
ý' IýiJ 16C, is
u

J1 a=%-w ä; J 1 4-1r.
>L.. : LS If, J l; ä: J I
u ýr_--. -., as szJJ -; ,, di
(64)
" al;.ý. J IvLc L"JI aj I /ö ýI I ar: / ä>y...
,_°ý: ,ý ýk Q9ä-'LS'D' ,,..: ,ý
fcf,.
W
' a''ý ,,.-° X1911I L: j I,:; I

ct L_y1.9 .ll äý.... L" ä; .. aJ 1 L"Uu 1

,1,,, ýs"--'.aJ al!

Z
d-;-. au 1v4! Jc

a) ms ä1ý:...

b) ms after a- see rUl 4-. JI

-k `s

c) ms These words appear after cýý}

d) ms c9}ß'
_.

J but Risila, p. II0.

e) ms cf.
 Ot))

J 1 LU J I U II 6
4; 4:. d.

a
T,...; yý 1ý dJI
a. ate.....;. vI ý9'" UI L.s tc Lt-L, 1J
.Sya .Sa. ß.

S la: aU I
,J

a1 l L. a-6 L. j )lý° J I ý,c l. 3Y 1 a;

- ra .:

jr, j; c r)1...J I aýlo Ill 3 C,. 5

6 ai J,J YI iQ 9Px.,. J 1 4J aL &U11.

.

JI ý1ý; P LJ I aý1Cý.; J IyLL, syIý.; ,J

I' l iJ

Cb
ICJ II 1i /I3 I/ L. J I dJ J 1 c:. e_L L L'ý..ILI L'J
yIý, ýJ r . ý,; ,.,

4- 4 all I I_; 19ý P

-., (, 1.
e ,,. 94, sI- (J 9)i. may u9ý9 ° r'`^s 1 a1 ä;...,,

(65)
" Iß.1L ý,.., Imo.
/ .ýUý/ r.;.ý,
r!
(rS-ý v" 1 Jr 1, Iyý. , I) " I.ý., ý1 , a,l-S zo
ý!
d
Iý 1,,,
oJ ý. . tc c1JI ýL - v. 1jJ lys v, LfrJ &4
J a: I ,I of i 1:1
-J ,
e
fo. I49b.

Z) I J9'ß "IC.,. I, I6 W IdaI! IS li " ri>J Is11,,

f -6. /4 u9L
f
}Lj 1 4-6 cj 15 1-$ri JI ;JI

a) ms above rehe line.

b) LI L%
ms
C) ms 9

CO ms dj but cf. Ris. Tla p. 109.

e) ms j
f) ms 6: J L
ß,.
 (1tT)

JI eJI C,. --ý, I A 3 ý. ;JIIý, c I 11;

1! t~' l lJ Iý a4>lS l5
-! ý; x, ,... tý 9

aJc ý.: 1I ý1S lS ýJ Ir1.., ýý :JI lý,c 1, ß..J I ysr Itoj I y

ý, y ýýW ý,
(66)
a
aZ l. S

l; xSJ 1,., iJ
f; ý:

j- i1 I ,. Ii 1 lJ 19 J I5
. , -ii .ý..

Li ä;,.,,
J Iö ý., L"J
I 1oJ Iý, lS ist
y-,. ý, rW v v1yiI .

U-111
i ý, 'j, JI ý1.:,: ,I jw I ". rX,,. 1I a, k :JI! I Jgn, I
, 3ý.

I1 JLä; J I ý...; l.; 11:,. )l5 y ýý ylýJ I raL d1S

,. tQ ,;Y 9Q. ,1Il;.

d1A- Jssli

Lij 4. I
`J ä....J I, __ 1
v yJ a; 10
- plc. y

v-° IL 10I ;1ýý ý, J ICJ IuI ja LJ d. SAS

-I- C' di a..,, js, (I.. ,..;,ý Es-s. L5;,_'-'
b

" ý, IJaJ1. ä;-J IUJ aJ I a}y JCiJ II i+a

.

Jrd ii I ) IJ, L, Jlievi I> 1, ýl1. i ý., I

1 G
a. uJo dl. - .aö. , . . .+l.: ,;

a) ms ý y
ü.;..;.:

b) £US
 () tr)

ba
".! J

WW

L. f., J,;ý,ý .ý"sý1 ýr I-U

(67)
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fo. 150a. I C,. t- WII; +

:ý., L_y.
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a) see Risa1a p. III

b) Ibid.

c) ms bJI
ci) see Risäla p. III JJI
-14J
e) ms jj"J6
f) ms after see

g) ms J ,, crossed out.
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(72)
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b) ms A-I
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d) L~''19
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a) ms below the line.

b) ms ly>
v

J9xJ1 4
c) ms after see

d) ms above the line.

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a; tý-+ýý-=ý cr_- ýs}-) v

a) ms but cf. 1,7.

b ms a.,_;,

c) ms ýýý but cf. p. 149,1. I.

 (ILA)

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b) ýy_ý-
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C) IDS ý'-z;
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äß as °ý! "' but of. p. 15211. I.

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a) ms c

b) ms c;

A
c) ms C; 3

(1) ms

e) ms
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a) ms

b) ms

C) ms UI

d) ms ray

e) ms water stained.
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Juj I

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b) ms above the line.

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a) ms%

b) ms cýýý

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L ä1.. J I `L; Iä.. LI a: IS 19 ýJI 'I 'J. 5: J aJ J1
_....> ýk ß, 's: L5.6 . r,
e (77)
l.; l; L. a.,ý L is a. i Jy; J I L. P. ate. I0
,; 4
f
s1, yI" u. a, s}r l.. rS I ° aj ýJ I ä,ßc LY.ý.yi
76z% ýr,

ýa. JI s: J
c.

" l:: b .... Jli 1. cl'. J I C," 'r a, l: " L"1. a-, L.; I Le;.. lJ
ýi j.; ` .UIi: jr° -..
(73)

Jr: ,JL

a) ms

b) ms
JJI
c) ms

d) ms
but cf. p. 145,1.6.

e) ms

f) ms ý°}r
 (Ivt)

ý, 1 Li L- tu j, ZLei 1jý, ":,

fo. Iý)7b. Z. r, -1 rw _u -A

ter. L*-- Jr. IS

'rk -) .t
(79) a
. '7.__ 1

f.

a) sic.
 (1Vo)

UJI
,S-S

L ý1yý,; ý!19 rSa1I ". ý,,.,UI t., ýJI j.,, U

4. I d&-,ý-r. Ij6
ý1 Lr6 .v: j

J
(2)

Cc i,.ß:9i) "Lý, /
ý,. ý: r.ý. / (L. t. 6): J L,- J,i
(3)
as`a; ill j
LW ýIc
(4)
1.
,1_.. ayl: J I ý,::, ý. ýLlI y) " L-- d-J.
U1
0 ''J 39ý.: v. "u ILij I uw Jr 1.
r_
(7)

a>v LSa; I a-ai 11.;. I I is f` L-.:

;S .i" csl
a
1* II 13 L. WI 13 al-- a: 1 ICJ
. -t , ...; f-J .JL...;

I
a1J S. I, i> J64; I ý,1.,,, a.lc 4.UI 0 J I uc ý:.. I.
ß,1I v, cJl. c
;; . UL, S..:
(6)
iJ L I ý. I0
fiJ .. yJ

t.. :. ateI, JS 4 Li I; J Iyä; V I) t-.: 4 is- C..ý I, ýc t,. " J->i I

ý . -4 ý: . ý.!
b (7)
/I/L J6 ä_at W 13 l;.r,L. a.},, J 1 (ä ah. ä; 1.
.i13: >. uc'
plc. jw-

11.
ýý. J I J I
a1e, ý.;. wy_ 1 J I iL Y1 ýý. y, ß,1i ccýl; wý:, c Iu is I iý ö
t. si:

i L Ij3 *11 ý,, ýaJI e,ý. Yö>U' a> IS

ýs---- _) re; .

a) sic.

b) ms al?
,
 (IYI)

v L.
_S r; cc Aý- ctJ aU I J-.. ß. .1; L aJjJ I9
äff,,,., l. c
.:. r .a
(9)
"L L+ yyI Jar
a

fo ; -i tu
c Lt-, J 1 ý: t £i :ISj 1
au . >, , 1
au LC 9c 1

"ýIyä:. i. JI I OJ JI LS Lt:. I LS 1
_. LS ia U3 s' C, S3,3 (ä :)ý. a: Sy, s 5

tý 9 k
a_ all II
(io)
lo 1
s'' ý,)1ý.. ýý1C Vc° %1, L-^°''-: LS
ýr_ " ýý a1 sý -: cs,

d-UIvIIa. ]t J6a,

(II)
ä ý1_, JI ; ýsý i. ýj ((a )LJ t \J a}L. 19 'Lt.
,bW . . )

(22)
ILý.
J-9 Imo, JI
ýý--t ßs9, _
(23)
ro. I5 8a lö a.U 1.ý Jý:, l +ý.'sýI
.( dJý a: ,ý,
X14)
ý. w 4 9-sa5 iP I cam.
SI1J LIJl>
. f-. rlv. S.r

Lp al

L.
d
,yý ate. I L- "2I; L.., :.1J .
±. 7rr 0ý. } p. ýw
(d

.i

j I
a) ms r%-,
 (Ivor)

z Joa. 0 LIn"J la I I
CL., rJ.,,.,9 a1c LU LsL.,r, Ls:'J
(16) (I5)
a

J 14J J IvI": J Lb I J`1,,..: J I- Lam,

I'ý;
ýt.. ý..: `. ýs: v: csls uc ý;9, a: -ý y9
(17)
Ib W
f c-f-ý-l;

c (I3)
c ä> L ýJI I
'J
(ý9)
ILm II tý

before JL J1 Jl
a) ms seer Ls-: c)'J 9

b) res °rf- but cf. Ja$ý'Ssq abkamg vol. 2, p. 177.

c) ms below the line.

 (IYA)

1ý
ý... ý.. sý ýýý. lr
c,
a
J34; 1Ivyý. ý..., `1 I J9 I L
4-. a..., r ý.ý. `ýL-j
(I)
ýL". `s*Jý ur. `r. ll ý) .j Lx Jl;, 6 L
r.:
(2)
`1ý vý SJL. ý9t> LS l9 ýY` J is (a- ` LJ I
Cl
ß.4K. ý. _ý. ýr_ .11 9) 'ýJL,.. 9 ,oý.,

(3)
L. J, L it,," 3

(4)
LF-J `ßa1I I- LS j
ýr. ý'- it-ý v,. d-U jam uJ_
C
s
J6L. bi 13 L; I l. 1
31 uI a1 u--: ll sr 'i ý.. ý. ý. 9
CJs,9
d
c, Its di uS, 131 'r- tos ö Lý..J IyL Iý, I (, l9
rl ,ý"s ýJ

I,. `
am 3,,c 1.1.31 et, u1 `J1.9 kv
a"s IS 1 31;. Ir... l 1t-ý 1 y.,,;...,
ß;1c <» 3-Z. - Jr. a 30 . ,

J, L `. ýJ I L. ": i
J lö a: ýýz.,...
ý., TO

.cc'L. > aJL " Ui IS I. 6 ri;,. L"j1yY9

_. r5 .iI;... .f,.:y'

J.! I -0--r- lS ci Ii l-; b.,., ý a; Ir.. `J I i. Q )I U--i l..: tiJ 1J1;

_ u . »i ,

Ir_
a; "y4jy 1 1I JA 1 `J
:- 1 1 l. S JWia ice
it j,,. :, 4 t `, 4; a.

ý_1 lý 03 3 :4- :)1y aJ Cý.-r/ / 1J

C'. . -i5 ý, yI 1-
>1 f--ýj ýs -)J. y ,ic 9-
. ,.

a) ms üI9

b) ms after this verse see JLj J°Jy

which is the part of Iýý Iý,. I ill

, y

c) ms 1.9
: te
'Aj
A
dý ms A.
 (IYA)

i5)
"ö .vU.. J L ý. I?,
J I I
lam. L5. i
J ý.., _.

J lý. äJU.. y `ý....;. ö J L ý. `JI ý. y ý-y x'11 J9ä' a i1 19 : IJG

mss; .vL... ý ýi . J1,y,

6
U I !! 33 'sJ
v Jf d. CJ J9ý'9
r->

fo. 153b. I al ý> 9 ac

ßs19 r..F.. T.. 9
(6)
a
6J Io AA I-fJ 19 I : 41JI l-.S j ýý.; I5
ýs ý,ti.;s ýs ,ý }
ý"r. _, , ý1y

3jI "
4. IS L
ý)

1.
y.;_, r:
G ý. 71I
rS,. b J üi tJ
I 19 1 s9 3Jyý. yJU. ' La..J 19
ý +.,.lJ
b
ö I l. A 1I Gam... I Lý s Jam-
I Jý9 L: I ý. l I LSsä_yIä. ýis 11, k
,vI.. _JIj ýS1 plc r:.

(aJ I ,ýII iQ lc` I ý9y9 J L' J 19

`J ý; . ýsý: 9 ý9 ý`?rl ýS9 . ýs-ý9`U.
ý7)
c
" .ýL. JI `s:.!aJ IIy,. J ä,>y4JI ä,yI aý.,ýy 11.
,6"

äý `JI (rS; L X5 L iJ Iri: L_j L 4

aJy. JyI ;' ld. y
. " ýJ .iQa; _

c aJ ,.J> .L, )>1J J6

,ý. c,.
113 1ý 13_,,,; J I, dJJ I
. I LI &J.J)I i- JIt 4.UI ,, 61d.L 1
.,;
tf

"I aµ, `l I ý. US aä W I, tJIs Ij

. C)

aý msý, ý

b) ms but y crossed out.

`ylsý:. Wyl

c) ms ö a9L,., J I
,
 (Ii")

1y rW IJL. JJ6 J
)J ......,. IW3J, a19'9
ý,' J J-F,
s IJ (ý
ý.,. ý1C 'k, " ýS!}

' `oSU I Lta:, J11.31 s 3J I _. ->,JI I,

.6
LS
>J r.ý
I

A.
, y __ýJJ LýJ Iv ua / ýJ/ l6; I ö)Lý Iv `J
, ýi '"r

l.: Ia I 4;s,ý1::,: c-- b l: z ,6J

ý1
a
1al 1 ", ý 1 "c 3
j, L,..,11 1.,,,,,
y1rx£. 1,
& ýi xt,,.,21 '.., I'., 1 ä, y1c. ij9
ryJ Lý

6J Io_ I- y 1, 1IIvw r. sa
yy 19
t, ý. ,1> v. ý-y=J
r 3äJ plc u ß.

`il i Irr I. IC,- ýIýIJ

ks I) -i °. jI -Y La Imo,:,
`.. L"-
Ls r_ý
I

Jy X,,., V
a) ms