7.2. ABROGATION SPECIFICATION (TAKHSIS) AND ADDITION (TAZ’ID)
Naskh and takhsis resemble one another in that both tend to qualify or specify an original ruling in some way. This is particularly true, perhaps, of partial naskh, which really amounts to qualification / specification rather than repeal. We have already noted al-Shafi’i’s perception of naskh which draws close to the idea of the coexistence of two rulings and an explanation of one by the other. A certain amount of confusion has also arisen between naskh and takhsis due to conceptual differences between the Hanafis and the majority of ulema regarding naskh in that they tend to view naskh differently from one another. These differences of perspective have, however, been treated more pertinently in our discussion of the Amm and the Khass. In this section, we shall outline the basic differences between naskh and takhsis without attempting to expound the differences between the various schools on the subject.
Naskh and takhsis differ from one another in that there is no real conflict in takhsis. The two texts, namely the general text and the specifying text, in effect complement one another. This is not, however, the case with naskh, in which it is necessary that the two rulings are genuinely in conflict and that they could not coexist. Another difference between naskh and takhsis is that naskh can occur in respect of either a general or a specific ruling whereas takhsis can, by definition, occur in respect of a general ruling only.
As already stated, naskh is basically confined to the Qur’an and Sunnah and could only be affected by the explicit rulings of divine revelation. Takhsis on the other hand could also occur by means of rationality and circumstantial evidence. Naskh, in other words, can only occur by shar’ whereas takhsis can occur by rationality (`aql ), custom (`urf) and other rational proofs. It would follow from this that takhsis (i.e. the specification or qualification of a general text) is possible by means of speculative evidence such as qiyas and solitary Hadith. But in the case of naskh, a definitive ruling, that is, a qat’i, can only be abrogated by another qat’i ruling. Abrogation, in other words, is basically not operative with regard to speculative ruling.
As already stated, in naskh it is essential that the abrogator (al-nasikh) be later in time than the ruling which it seeks to abrogate. There can be no naskh if this order is reversed, nor even when the two rulings are known to have been simultaneous. But this is not a requirement of takhsis. With regard to takhsis, the Hanafis maintain that the ‘Amm and the Khass must in fact be either simultaneous or parallel in time. But according to the majority, the `Amm, and the Khass, can precede or succeed one another and they need not be in any particular chronological order.
Lastly, naskh does not apply to factual reports of events (akhbar) whereas takhsis could occur in regard to factual reports. Thus a news report may be specified or qualified, but cannot be abrogated. The closest concept to abrogation in regard to reports is that they can be denied.
Another issue which arises concerning naskh is whether a subsequent addition (taz’id) to an existing text, which may be at variance with it, amounts to its abrogation. When new materials are added to an existing law, the added materials may fall into one of the following two categories: (1) The addition may be independent of the original text but relate to the same subject, such as adding a sixth salah to the existing five. Does this amount to the abrogation of the original ruling? The majority of ulema have answered this question in the negative, holding that the new addition does not overrule the existing law but merely adds a new element to it. (2) The new addition may not be independent of the original text in that it may be dealing with something that constitutes an integral part of the original ruling. A hypothetical example of this would be to add another unit (rak’ah), or an additional prostration (sajdah) to one or more of the existing obligatory prayers. Another example would be to add to the existing requirement of releasing a slave in expiation for breaking the fast, a new condition that the slave has to be a Muslim. Does this kind of addition amount to the abrogation of the existing law? The ulema have differed on this, but once again the majority have held the view that it does not amount to abrogation as it does not seek to overrule the original text. The Hanafis have held, however, that such an addition does amount to abrogation. It is on this ground that the Hanafis have considered the ruling of the Ahad Hadith on the admissibility of one witness plus a solemn oath by the claimant to be abrogating the Qur’anic text which enacts two witnesses as standard legal proof (al-Baqarah, 2:282). The abrogation, however, does not occur, not because the Hanafis consider the new addition to be immaterial, but because the Ahad cannot repeal the Mutawatir of the Qur’an. The majority opinion does not regard this to be a case for abrogation. For the Qur’anic text on the requirement of two witnesses does not preclude the possibility of proof by other methods. Since the original Qur’anic text does not impose an obligatory command, it leaves open the possibility of recourse to alternative methods of proof.
by M. H. Kamali.
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