Hanefî Mezhebinde Bir Yorum Yöntemi Olarak Siyaset: Siyaset Cezasının Ortaya Çıkışı
Siyāsa as a Method of Interpretation: The Emergence of Political Punusihment (Siyāsa)

Summary/Abstract: The term 'political punishment’ is employed to denote authority to impose extreme penalties upon the head of state. The shar'ī nature of political punishment, which constitutes one of the most controversial issues of Islamic criminal law in terms of legitimacy, is one of the most important issues emphasized both in the historical process and in the modern period. It is asserted by certain jurists that this punishment constitutes a deviation from the Shari'ah. Conversely, it is argued by other jurists that this punishment is in accordance with the Shari'ah. The present article focuses on the context in which the phenomenon of political punishment first emerged, the conceptualization process, thereof, and the reasons that gave rise to it. In this study, the theoretical underpinnings of this punishment have been traced back to classical Works. The theoretical basis of this punishment has been established through various sample issues, such as the narration stating that the punishment of jaldah will be given together with the punishment of stoning or exile together with the punishment of ‘flogging punishment’ (jaldah), the narrations and practices expressing the killing of the apostate woman, the narration that the punishment of cutting off the hand will be given to the shroud robber, and the narrations contrary to the prohibition of torture. This term is first encountered in the works of Abū Zayd al-Dabūsī (d. 430/1039), a Central Asian Ḥanafī. The absence of such a concept in the works of al-Jaṣṣāṣ (d. 370/981), al-Qudūrī (d. 428/1037) and al-Nāṭifī (d. 446/1054), who were among the Baghdad Ḥanafīs of the same period, makes it possible to say that the Ḥanafīs in the Central-Asian-Iranian region developed it for the first time. Despite the Baghdad Ḥanafīs of the same period mentioning a power granted to the head of state, this naming was not made by the jurists of the Baghdad region. The primary component of political punishment, utilised by al-Dabūsī and subsequently by Shams al-Aimme al-Sarakhsī (d. 483/1090), entailed the interpretation of news pertaining to certain severe punishments. These were narrated from the Prophet and the Companions and did not conform to the prevailing ḥad and ta´zīr theory of the Ḥanafī madhhab, which was deemed acceptable within the sect under the guise of politics. Consequently, the report was accepted as authentic, while the ḥad and ta´zīr theory of the sect remained unadulterated.

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