Ahmed ez-Zerkâ’nın Mecelle Şerh Literatürüne Yönelik Metodolojik Tenkitleri
Ahmad al-Zarqa’s Methodological Critiques of the Mecelle Commentary Literature

Summary/Abstract: Adliyye paved the way for the emergence of a rich commentary literature from the period of its codification onwards. Commentaries authored by late-period jurists such as Crimean Abdüssettâr Efendi, Mesud Efendi, Kuyucaklızâde Âtıf Efendi, Türkzâde Hâfız Mehmed Ziyâeddin Efendi, Muhammad Hâlid al-Etâsî, Hacı Reşid Paşa, Ali Haydar Efendi, Selim Rüstem Bâz, and Muhammed Sa‘îd al-Mehâsinî have transmitted an immense body of legal knowledge to the present day by elucidating the origins and application of the articles of the code. However, these works were predominantly composed using a casuistic method, and the fiqh origins of the articles are explained in detail. Nevertheless, theoretical analyses regarding the abstract functioning of legal logic, the theoretical infrastructure of general principles, and the systematic integrity of universal rules remain lacking in certain respects. This study aims to examine the methodological critiques directed at the existing commentary tradition, as well as the original doctrinal contributions made to the literature in the work titled Sharh al-Qawâ‘id al-Fiqhiyya by the Aleppine jurist Ahmed b. Muhammad alZarqa. Employing document analysis technique, one of the qualitative research methods, this study determined that while al-Zarqa sometimes directed his criticisms directly at specific commentators, these criticisms also possessed a structural nature that indirectly encompassed the commentary literature in general. The findings indicate that the author's contribution to the literature materialized on three fundamental levels. First, al-Zarqa criticized the superficiality in the commentators' methods of interpretation and legal reasoning (istidlal). In this context, he demonstrated the role of expressions considered redundant in the commentaries in the construction of rulings, corrected the methods of interpreting silence in the code from a procedural perspective, questioned the authenticity of transmissions, and rejected the approach of deriving rulings solely from general maxims while neglecting the school's established corpus of particular rulings (furū‘). Second, the author remedied the errors committed regarding the scope and application of universal rules. Within this framework, criticisms were directed at the commentators' unwarranted narrowing of the scope of maxims, incorrect determination of the legal characterization of concepts, procedural errors made when identifying exceptions, and inapt derivations (tafrī‘) that did not align with the logic of the maxim. Third and finally, al-Zarqa shifts the scope of criticism from the level of “the incorrectness of what was said” to the level of “the absence of what should have been said,” thereby bringing attention to the deficiencies and omissions in the literature to the agenda. In this regard, he identifies overlooked procedural gaps, addresses the failure to formulate scattered issues through comprehensive controlling precepts (ḍābiṭ), and supplementes the deficiencies regarding the extension of the application area of existing maxims to similar fields through original legal connections. The findings demonstrate that Ahmed al-Zarqa possessed the identity not merely of a passive commentator transmitting the Mecelle commentary literature, but of a constructive jurist who fortified and complemented it.

• Details
• Contents