The medieval abrogation and the modern temporal conflict of laws
One of the three options to reconcile conflicting arguments is to assign the conflicting laws they produce to different times or temporal frameworks. This applies particularly in the area of texts.
The assumption is that a subsequent text cancels out an earlier text. The Quranic texts themselves bear the possibility of abrogation, but abrogation is applicable in Sunnah texts more frequently and abundantly.This is one area where medieval Islamic law’s theorization of superior argument finds a near exact equivalent in modern laws and may thus serve as a segue to modern applications of the idea of superior argument. The essence of abrogation, as we said, is that texts of later temporal provenance cancel out texts of earlier provenance. Whether it is the Prophet’s law or a modern legislative body’s laws, the idea is the same.
In all Sunni schools, temporary marriage was allowed. Sunnis believe that this permission was abrogated. Ja'fari jurists do not agree with this view.
In modern law, temporal jurisdiction of legislation may be debated. Article 917 of the 1949 Egyptian Civil Code states that,
were a person to transfer his/her property to one of his/her inheritors but keep physical control of the property and draw benefits from it for the remainder of his/her life, the property transfer is presumed to fall under the laws of the will — as long as no evidence militates against this presumption.13
One clash of legal imperatives relevant to article 917 concerns its retroactive application. It is not in disagreement that the law of gifts was extracted from personal status laws and made a normal part of civil law proper.14 Conflicting legal imperatives, however, persisted. Does article 917 retroactively apply to inheritance that occurred before 15 October 1949, the date the code became enforceable? This hinges on whether the article establishes a substantive law or a rule of circumstantial evidentiary presumption. If the former, it does not apply retroactively at all. If the latter, it tells the judge that when ambiguity befalls a certain property that is part of an inheritance, where the property was given in sale or as a gift to one of the inheritors but not delivered before the death of its owner, the judge must take the incomplete delivery as a presumption that the property was intended by the deceased to be part of the inheritance. Its retroactive application remained a matter ofjuristic disagreement.15
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