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 Post subject: Did the Sunna abrogate 5:38?
PostPosted: 24 Oct 2013, 19:47 
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Abu-Bakr Al-Hamdaani, in his book الاعتبار في الناسخ والمنسوخ من الآثار, page 23, quotes Abush-Shaykh Al-Haafizh stating that the Sunna abrogated

His evidence is two hadeeths,

لا قطع على سارق الغنم وإن كثرت وكثرت قيمتها إذا لم يأوها المراح، ولا قطع على سارق التمر إذا لم يأوه الجرين

Translation: No cutting off upon a thief of sheep, even if it is plenty and valuable, if it was not sheltered in a yard. And no cutting off upon a thief of dates if it was not sheltered in a barn.

To begin with, he did not authenticate this hadeeth. And I could not find an authentication of it anywhere. Secondly, the hadeeth clearly states its contingency: shielding of stolen property. That means that unprotected property that gets stolen is not to be punished, which is the opinion of Abu-Haneefa. So, not only is the ruling of the hadeeth conditional, but also there a reasonable reconciliation argument to eliminate inconsistency.

And,
لا قطع في ثمر ولا كثر

Translation: No cutting off in fruit, nor kernels.

Al-Hamdaani did not authenticate this hadeeth, but his book verifier did. He said it was reported by Abu-Daawood, At-Tirmizhi, An-Nasaa'i and Ibn Maajah. I confirmed that.

But that is a simple case of exception, not abrogation.

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 Post subject: Who said what
PostPosted: 24 Oct 2013, 19:52 
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For:
Abu-Bakr Al-Hamdaani (implied),
Abush-Shaykh Al-Haafizh (quoted by Al-Hamdaani).

Against:
No one else discussed this claim, as far as I know.

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