FIKIH DÜŞÜNCESİNDE FİİL KAVRAMI VE HİSSİ-ŞER'İ FİİL AYRIMI
THE CONCEPT OF FI‘L (ACT) IN ISLAMIC LEGAL THOUGHT AND THE DISTINCTION BETWEEN HISSI AND SHAR‘I ACTS

Summary/Abstract: According to a division which was made by Dabusi, an important scholar of fiqh and usul al-fiqh who died in the first half of the fifth century according to hijrah, all of the acts can be divided into sensorial (hissī) and canonical (shar’ī). The criterium of the division is whether an act is considered to be performed when it is acted or not. According to this idea, for all of the acts there is a sensorial aspect, and some of them as well as have a canonical aspect, that is to say, adequacy of the acts with the conditions which has been put by the sharia, in order to be considered to be performed, in addition to sensorial one. Scholars of usul al-fiqh after Dabusi, especially Sadrushsheria among them, made improvements on the topic and Kāsānī, an Hanafite faqih, used it as a means to analyze a problem of furu al-fiqh. The division has meaningful ties with the problem of the goodness or badness of acts, which is called husn and qubh in usul al-fiqh and kalam literature, and the division rather is a consequence of this problem. This division must be seen as a contribution from the thought of fiqh, and in this tradition as a contribution from the Hanafites. Also this division has convenient elements for comparison with the division of acts which modern continental European law has developed.

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