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16. ve 18. Asırlarda Osmanlı Fetva Literatüründe Mudârebe Ortaklığı

Author(s): Ahmet İnanır / Language(s): Turkish / Issue: 40/2020

Mudārabah is a type of partnership that was founded by putting labor on the one hand and capi-tal on the other, dating back thousands of years before Islam. In Islam, this partnership has been accepted as legitimate and used by Muslim societies. This partnership has included in the classic fiqh books as a separate section from the şarikah subjects. Mudārabah partnership continues to exist in various ways today. Participation finance which is developing day by day collects capital based on this partnership. Some researchers even recommend it as an alternative method to participation banking based on contemporary usury especially the interest finance system. For this reason, whether the partnership in question is of a nature to perform the task expected from it will only be revealed by knowing the historical experience. Furthermore, determining the change that this partnership has undergone in the historical process will help to understand its current situation and the way it will take in the future. Because, depending on the human expe-rience in the historical process, it is seen that some provisions and consequences of the partners-hip have changed. The partnership structures, which were simple in the first periods, have gained more and more technical features. For this reason, it is of great importance in terms of economic history to determine and how the Ottoman period partnerships were established in the 16. and 18. centuries, which business lines were widely used, and what legal problems and solutions were produced during this period. In this way, functional determinations can be made as to whether the contract will be able to fulfill the function expected today.This research tries to put forward the various legal problems and solutions faced by the conflict partnership based on Ottoman fatwa literature in the 16. - 18. centuries. Because the current problems encountered with the application have been the subject of fatwas as well as fiqh books. Fort this purpose, fatwa journals belonging to Ibn Kemal (d. /9401534), Ebu’s-su‘ud Efendi (Abū l-Su‘ūd) (d. 982/1574), Sun‘ullah Efendi (d. 1021/1612), Feyzullah Efendi (d. 1115/1703) and Yenişe-hirli Abdullah Efendi (d. 1156/1743), who stand out in terms of recognition and accessibility in the aforementioned centuries have been collected and fatwas that can be determined on the subject have been evaluated.In the Ottoman period fatwa literature, the contractual contract takes place in separate titles separate from the company department, as in the tradition of fiqh. It is understood that fatwas related with mudārabah mostly reflect the problems and solutions that arise during the applica-tion. When the prominent fatwa journal of the research subject are examined, it is seen that the mudārabah partnership has been widely used in Ottoman society in terms of both number and issues. Due to the fact that this partnership can be said to be one of the most useful tools for the capitalist to operate his capital and to meet the financing needs for the entrepreneur. It seems that some people especially women, who do not have the opportunity to trade, prefer this part-nership.Expressions such as “Zeyd Captain”, “Black Sea and the Mediterranean”, which are frequently mentioned in mudārabah related to fatwas are observed that a partnership has been made mainly in the Istanbul-centered, Mediterranean and Black Sea basins for the agricultural and commercial works in the Ottoman Empire in the aforementioned centuries. Thus, entrepreneurs seem to meet their short-term financing needs. It can be said that the fact that the mudārabah partner is active in the partnership and the passivity of the capital owner causes the parties to have more reflecti-ons in the fatwa than the other partnership types. Because, it is seen that if the mudārabah part-ner is not unjust due to the mudārabah partnership, he is not responsible for the loss in his capi-tal, and if the profits are due to the transactions against the immigration of the capital owner, the probability of the mudārabah partner is to take more risks. This situation causes the capital owner to try to impose various restrictions on the place, time and duration in order to protect the capital from loss, and even to go further, to put forward some conditions contrary to the spirit of the depository, as the depository is common to the loss in the capital or to be a guarantor to the capital. Nevertheless, it is understood that the deposi-tory did not comply with the relevant conditions too much and that in some cases the capital was lost, this was considered within the scope of injustice. One of the main points of disagreement between the capital owner and the mudārabah partner whether the capital is given as debt, treatment or mudarabah. Especially, in case mudārabah partnership makes a loss, it is seen that capital owner is trying to save his main capital, while the mudārabah partner is trying to avoid the obligation of compensation. Even, in some fatwas, capital may claim that while he took profit from the mudārabah partner, he made a profit in the event that the loss occurred while the nature of the capital was not on the agenda. He claims that he/she took the ruin in response to his/her claim that the capital owner lent. In fatwas, if the partners can not put forward any evidence or if both parties present the evidence, the evidence of debt is accepted, if no preference can be made a selection between the evidences, it is seen that if capital get lost, debt is preferable, if profit is obtained, the evidence of mudārabah is preferred. Because, the mudārabah partner with the permission of capital owner, admits that he/she delive-red the goods in capital owner, according to which he embraced capital. In this case, mudārabah partner may file suit a compensation case. However, if there is no evidence related capital owner lends, it is accepted that his/her oath related to mudārabah partner is a mudarabah. It is seen that the capital owner is trying to make a capital such as wheat, hemp, cloth and sheep in fatwas. However, if he gave a power of attorney and told him to use it, it is seen that the cont-ract of mudārabah could not draw up. In addition, except for the labor of the mudārabah partner, the claim that he added capital and was the permission of the capital owner etc. is accepted in some circumstances. It can be said that the issues of loss and detriment related to mudārabah are subject to more fatwa than other issues. Some of them appear to be due to negligence and male-volent attitude of the destructor, some to be due to negative market conditions, and others to physical adverse conditions such as the sinking of the ship. From these point, it is also possible to identify the areas where the damage was caused in these centuries. Among them, the sinking and side lying of the sea vehicles come to the fore. It can be said that in the centuries of research in the example of Mudarabah, there is no incompatibility between the fatwas and the tradition of fiqh, that is between theory and practice.

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A Fresh View On Zakah As A Socio-Financial Tool To Promote Ethics, Eliminate Riba And Reduce Poverty

Author(s): Magda Ismail Abdel Mohsin / Language(s): English / Issue: 1/2020

Current statistical data shows that almost all Muslim countries are facing economic and social problems such as the spread of poverty, mounting outstanding external debt due to compound interest and widespread unethical behaviour. Some contemporary scholars relate these problems to the oppression and the crippling policies of former colonial administrations, while others point to the governmental incompetence and corruption that triggered the last Arab spring. However, this paper contends that although the above mentioned issues may have served as catalysts that led to the worsening of socio-economic situation in many countries, the main reason for the overwhelming problems plaguing Muslim countries is their neglect of many Islamic financial and socio-financial duties, including zakah (alms) which is conceived to spread ethical behaviour, eliminate riba (interest), empower the poor and needy and so reduce and may even end poverty. This study aims to demonstrate how zakah, as a socio-financial tool, can help promote sound standards of ethics, generate funds to counter external borrowing endorsed by anti-poverty programmes, empower the poor, and eradicate poverty in Muslim societies. This paper uses a secondary source based meta-analysis of books, articles, journals, annual reports, and websites, besides referring to the Quran and the Sunnah of the Prophet (PBUH) whenever necessary. The findings show it is imperative that zakah to be recognised as an effective socio-financial tool to counter the ills currently plaguing Muslim societies. Adequately managed and distributed zakah can help to promote good ethics, overreliance on external borrowing, empower the poor and end their poverty hence, resulting in a just and a caring society.

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Ahkâm Ayetlerini Yorumlamada Fıkhî Mezhep Faktörü: Cessâs, Ebû Bekr İbnü’l-Arabî ve Kiyâ el-Herrâsî Örneklemleri

Author(s): İlyas Yıldırım / Language(s): Turkish / Issue: 2/2019

The Quranic verses have a wide range of topics. They are sometimes revealed directly and do not need interpretation, but sometimes they lack clarity. This makes it necessary for the person dealing with the verse to have a certain method and knowledge to understand the text correctly. Therefore, the person’s perspective will affect the process of understanding and interpreting the text. Hence, when we examine the verses that put forward a provision, it is seen that they are limited and regulating some areas. In addition, they have a style that can be interpreted in different ways. This provides a broad interpretation area for the scribes, who try to understand the verses. On the other hand, the element of accountability is important in interpreting a verse. In this tension, the legal verses subjected to various interpretations by the scribes. These scholars, who try to make judgments from the verses, carry out this process under various factors. One of these factors may be the practical sect that is followed. This article focuses on this aspect of the issue through three faqīh-mufassīr who have the first legal exegesis of Quran, but belong to different sects. Thus, it is possible to obtain an idea about the extent of the existing effect.

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Allah Hakkı ve Kul Hakkı Arasında Hanefi Ceza Hukukunun Kamusallığı

Author(s): Muharrem Midilli / Language(s): Turkish / Issue: 1/2017

Modern criminal law is generally regarded as a public domain because it primarily aims at protecting general interests and has dominant vertical relationships between public institutions and the individual. This understanding corresponds to a certain extent in the Hanafi criminal law. According to Hanafi jurists, the fixed penalties such as adultery, theft, and drinking wine/getting drunk are applied only to the benefit of all people. The fixed penalty for the false accusation of adultery and the retaliation (kısas) protect the benefit of all people, as well as the the interests of individuals. The public authority is able to impose discretionary chastisements (ta´zîr) and administrative punishments (siyâsa) for the benefit of the society. It is his responsibility to investigate crimes, to prosecute suspects and to impose punishments. In all these steps, vertical relations are formed between the public authority and the perpetrator. On the other hand, the Hanafi criminal law has unique features such as the determination of public interests by the Lawgiver and the penalties imposed directly on behalf of individuals.

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Application of Tawarruq in Islamic Banking in Malaysia: Towards Smart Tawarruq

Author(s): Muhammad Faruq Roslan,Omar Bamahriz,Aishath Muneeza,JinZi Chu,Zakariya Mustapha,Mohamad Zabidi Ahmad / Language(s): English / Issue: 2/2020

The objective of the paper is to discuss the application of tawarruq in Islamic banking generally. The modus operandi of tawarruq in Islamic banking is an essential discussion in jurisdiction like Malaysia, where most Islamic banks use tawarruq to structure Islamic banking products. This paper employs a systematic literature review on best practice models and mechanism of current tawarruq application. The outcome of the research helps to understand the modus operandi of tawarruq transactions practically with a view towards understanding its future prospects in the era of Fintech. It is envisaged that this research will assist the growing understanding of the existing application of tawarruq in Islamic banking as well as its future development using technology.

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BEYU’L-ÎNE ve YAKIN KAVRAMLAR

Author(s): Arif Atalay / Language(s): Turkish / Issue: 46/2020

The sales contract forms the basis of such mutual contracts. In this case, the necessity and acceptance of the parties, the words they use while saying these, the conditions, the halal and haram in their behavior are by the nature of the contract. When the same process is used with different words, it is sometimes valid and sometimes it is not. In this case, shopping tools are important. Although it is not haram, there are some vehicles that take people to haram. However, some of these vehicles are vehicles that are involved in vehicles that will not lead to haram. Vehicles leading to haram sometimes have two ends, there is a possibility for both sides. For example, on the one hand, while it looks like a sale contract, on the other hand, even though the wording used is different, interest shopping can be made considering its application. Some of the contracts in Islamic law are controversial due to their damages, losses, interest, safqateyn and similar suspicions. Although there is a controversial issue in the contract called contract, it is one of the contracts that are frequently applied both in the classical period and in the economy world today. When dealing with a subject, it is important to reveal the relevant concepts in terms of understanding the subject. When evaluated in general, the îne contract arises due to the needs of people for gold and silver. Someone who needs money buys goods and sells it for the amount they need. In fact, nobody needs property, only money.

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DEKLARACIJA O LJUDSKIM PRAVIMA U ISLAMU IZ KAIRA

Author(s): Oliver P. Nikolić / Language(s): Serbian / Issue: 3/2020

U radu autor prikazuje Deklaraciju o ljudskim pravima u islamu, jedan od najvažnijih pravnih dokumenata o pravima čoveka koji je donela Organizacija islamske saradnje u Kairu 1990. godine. Iako ova deklaracija pretenduje da unapredi Univerzalnu deklaraciju UN, mora se konstatovati da je ona prihvatljiva samo u državama sa većinskim stanovništvom islamske veroispovesti. Ono što najviše narušava univerzalnost primene jeste njena duboka ukorenjenost i doslovno zavisnost od šerijatskog prava.U radu su ukratko opisana sva prava i slobode koji se pominju u Kairskoj deklaraciji. Na prvi pogled ova deklaracija pruža zaštitu i garantuje mnoga ljudska prava, čak i više od Univerzalne deklaracije, ali sva ta prava moraju biti u skladu sa šerijatskim pravom. Ta obaveznost usklađenosti sa šerijatskim pravom često obesmišljava i sputava pravu zaštitu zagarantovanih prava. Prikazana su i pozitivna ali i negativna razmišljanja i pogledi na Kairsku deklaraciju, u zavisnosti da li su o njoj pisali teoretičari islamske veroispovesti ili zapadnih zemalja. Kako god da se posmatra, ova deklaracija će imati smisla i važiće samo u muslimanskim zemljama, bez ikakvih mogućnosti da se primeni u nekim drugim državama.

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DETECTING THE IDEOLOGICAL POSITION OF POLITICAL ISLAM TOWARDS LIBERAL DEMOCRACY IN MUSLIM COUNTRIES

Author(s): Nikola Gjorshoski,Goran Ilik / Language(s): English / Issue: 03/2020

The question of the correlation between Islam, political Islam and liberal democracy has so far been the most exposed topic in exploring the democratic capacity of political Islam and Islamic societies in general. What is particularly intriguing about the relationship between political Islam and liberal democracy is the fact of its westernized triviality that has received a pejorative tone in Islamic political circles. Simplified, the triviality of liberal democracy for the Islamic political campus implies imposing a model of democracy that cannot be fully compatible with the original Muslim notion of society and government. Hence, the following paper analyzes exactly the relations of political Islam to specific inherent categories of liberal democracy such as the rule of law, representative government, the separation of powers and secularism as diferenta specifica of liberal western democratic discourse. Through the methods of induction and deduction, the author will illustrate how appropriate tangent or divergence is illustrated and how this is reflected in the general ideological positioning of political Islam towards liberal democracy in Muslim countries through an axiological and praxeological perspective.

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Determinants of Debt Maturity Structure in Shariah and Non-Shariah Firms in Pakistan: A comparative Study

Author(s): Naveeda Karim Katper,Azian Madun,Karim Bux Shah SYED,Muhammad Nawaz TUNIO / Language(s): English / Issue: 50/2017

Despite the global emergence of Shariah-complaint firms and the resulting interest of investors and policy makers, the research on these companies is still at an embryonic stage. This paper addresses this issue by investigating the capital structure decisions of Shariah compliant firms in comparison with the conventional or non-Shariah firms. Using the theories of corporate debt maturity structure, we carried out the empirical analysis of firm-level factors influencing the debt maturity structure among Shariah firms in Pakistan. Since Shariah compliance entails some specific firm characteristics such as lower debt ratio, lower liquidity, and higher tangibility, we argue that the debt maturity structure of Shariah and conventional firms would differ significantly. Our purpose, therefore, is to explore how Shariah compliance translates into debt maturity structure decisions of these firms. Our results show some significant variations among the impact of various determinants of debt maturity among the Shariah and conventional firms. Our most striking finding is that the debt maturity among Shariah firms is significantly shorter than conventional firms. Amid the dearth of studies investigating the relationship between Shariah compliance and firm’s choice of financial decisions, our study would be a source of unfolding the debate and understanding the nature of capital and debt maturity structure of Shariah firms. The research findings are also expected to benefit large and growing clientele of the Shariah firms by providing better insights on the capital and debt maturity structure of these firms.

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Doğuşu ve Tarihsel Gelişimi Bağlamında İslam Hukukunda İhtilaf

Author(s): Yüksel Salman / Language(s): Turkish / Issue: 42/2020

Ikhtilaf (differences of opinion on religious matters) is a natural phenomenon. Throughout the history, different views and understandings have always existed. This fact should be taken into account while evaluating the ikhtilaf on fiqh (jurisprudence) matters. The ikhtilaf that are in contradiction with the nass, the ijma, and the general tenets and principles of Islam have not been approved throughout the history of Islamic law. The duly-conducted ijtihad made by the qualified fuqaha (fiqh scholars) on matters open to ijtihad, and the ikhtilaf that occurring as their consequence are, however, evaluated as a reason for mercy. The scholars of Islamic law in the period of the Companions and the subsequent periods have had disagreements on many issues. However, this situation was not seen as a reason for dissension (fitnah) except for some marginal views. While the differences of opinion were met with more understanding and accepted as richness in thought, they began to be criticized and their legitimacy to be questioned after the second Hijri century. General rulings of some verses that prohibit ikhtilaf were shown as the basis for this approach.Differences of opinion while the Prophet was still alive were resolved by the Messenger of Allah himself. Therefore, it is not possible to mention about an ikhtilaf in the real sense in that period. But since the revelation stopped and no source of resolution left with his demise, we can say that the first serious differences of opinion arose. The main reasons for ikhtilaf in the period of the Companions can be counted as not reaching the related nass or ruling, the fact that the hadith has not come through an.The differences of opinion that arose in the period of tabi’un (successors of compan-ions) were mostly based on place and region. Main reasons for the ikhtilaf in that period are the use of words literally or metaphorically, the hadith’s being known or not, the authenticity of the hadith, difference of knowledge and method of ijtihad, and social circle. The new cultures and understandings emerged with the conquests, the effects of ra’y and hadith schools, and differences of opinion resulting from evidence, language, and geography are among other reasons for the ikhtilaf in tabi’un period.Borders of the Islamic state reached Spain and China, and social and cultural dynamism increased in the period of mujtahid imams, from the beginning of the 2nd century to the 4th century after Hijrah. Comprehensive interpretations of the Qur’an and the Sunnah, and the rich accumulation consisting of the ijtihad of Companions and fuqaha tabi’un have formed massive data for the systematization of Islamic fiqh. While the schooling was around basic trends in the period of tabi’un, in this period, a person-centered new legal structure called “madhhab” (Islamic jurisprudence school) emerged among these schools.The phenomenon of imitation left its mark on the “madhhab and literature-centered development period” starting with the second half of the 4th century after Hijrah and continuing until the conquest of Baghdad by the Mongols. Absolute ijtihad (ijtihad al-mutlaq) gradually decreased in this period while strict adherence to a certain madhhab and previous ijtihads came to the fore. This period is also the one when Islamic jurisprudence matured in the context of concept, theory and method, and settled as a tradition. For this reason, this period is also called “the period of stability” or “the period of institutionalization” by some. As the absolute ijtihad era ended in this period, followers of each madhhab adhered to their imam.Islamic law continues to have an effect on organizing life in Muslim societies, whose number is today close to two billion worldwide. In today’s world where multidimensional developments are experienced in every field of social life and thus legal prob-lems are increasing and deepening, some of the studies in Islamic law continue at legislation level while others are held at the academic level in the official and civil field, particularly in universities.We can say that in addition to many boards and organizations that focus on fatwa, scientific studies conducted in universities also shed light on the solution of today’s jurisprudential problems, help to eliminate the legally-baseless ikhtilaf, and contribute to the development of common-sense approaches.In this study, by which we tried to reveal the emergence and historical development of ikhtilaf in the Islamic law, the political factors affecting the course of ikhtilaf, the environmental factors, the elements regarding time and geography, and the differences of methods adopted by Islamic jurists are discussed. Contemporary studies on Islamic law are also included in addition to the classical sources of fiqh. This study aims to position the fact of ikhtilaf correctly and to draw attention to its legal nature. Understanding the ikhtilaf and its historical course will open the door to comprehending the reasons behind different opinions in Islamic law and to richness in views. It will also make significant contributions to prevention of ikhtilaf-based separations.It is a fact that it is impossible to imagine a world without ikhtilaf. Although it is a well-intended thought to expect all mujtahids to have the same opinion or everyone to obey an opinion in subjects open to ijtihad, we need to state that it does not have religious, legal or rational basis. What really matters is to accept the fact of ikhtilaf, comprehend its legal nature, and evaluate it as a different horizon.

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Endülüs’ü Hanefî Mezhebi İle Tanıştıran İlk Fakih: Abdullah b. Fer-rûh ve Öğrenci Silsilesi

Author(s): Abdullah Acar / Language(s): Turkish / Issue: 2/2019

Among the Muslims the most common sect is Ḥanafī. It is mentioned in the Ḥanafī sect that there are a line of students who transfer the principles of the sect from generation to generation. In order for the Islamic conquests that started simultaneously in the Eastern and Western lands to be permanent, people were sent to teach Islamic morality, worship and fiqh that encompass daily life. From the 2nd century (A.H.) the sectarianization process that started in the centers such as Kufa, Medina and Damascus has naturally spread to the geography of the West. Many jurists who were educated in the madrasas in the East transferred this education to the newly conquered lands in the West, thus contributing to the fact that sectarianization began in the East and West at the same time. During this period, the views of many mujtahids, including Abū Ḥanīfa and his students, began to enter this geography again through his students. In this article, the most important person who introduced the Ḥanafī sect in the Andalusian region and transferred Abu Ḥanifa's ijtihads, ʿAbdallāh Ibn Farrūkh's life, his scientific personality, his contributions to the spread of the sect and the reasons for the Ḥanafī sect to find supporters in the region will be followed by a short course and the history of the sect will be tried to uncover in the history of Andalusia.

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Erken Ödeme İndirimi Muamelesinin Şer‘î Hükmü ve Cahiliye Ribâsı ile İlişkisi Açısından Tahlili

Author(s): Mehmet Aziz Yaşar / Language(s): Turkish / Issue: 2/2019

The matter about whether it is permissible that there is a discount in the time loan in exchange for the advance payment is our study’s main subject. The majority of scholars accepted the aforementioned discount as the purchase of term, and accepted it as unlawful by evaluating it within the scope of interest of jahiliyyah. Some jurists thought such discount as the benefit of parties and accepted the discount as halal by evaluating it in the context of discount magistrate. The main reason of disputes about this matter is that there are two opposite hadiths. The approaches of jurists were revealed about the canonical judgment of the transaction of early cash discount in the article. In this context, the information will be firstly given about the importance of this matter, and then the subject will be tried to be enlightened as the sanad criticism is made about the aforementioned hadiths. Then, an effort was made to determine a view worthy to be preferred as the views of jurists were evaluated with their legal reasoning. In this respect, it was tried to be determined about whether there is a relationship between the aforementioned transaction and the interest of jahiliyyah.

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European courts ́ authority contested? The Case of Marriage and Divorce Fatwas On-line

Author(s): Vít Šisler / Language(s): English / Issue: 1/2009

This article explores Islamic websites providing normative content for European Muslim minorities. It focuses on four distinct Sunni websites and analyzes their fatwas, i.e. legal and religious recommendations issued in matters related to family law. Drawing from a broader research of more than 450 fatwas, this article presents the various ways, in which Muslim authorities associated with these sites deal with the conflicting areas between Islamic law and European legal systems. Essentially, it argues that the Internet and information and communication technology create new public spheres where different, and oftentimes conflicting, concepts of coexistence between Islam and the State are negotiated. Moreover this article demonstrates how these concepts are later incorporated into existing legal frameworks through the institutions of arbitration and marriage contracts. At the same time it explores the underlying rationale behind the fatwa-issuing websites, which emphasize the role of the individual and promote voluntarily adherence to Islamic law. On a more general level, this article aims to provide case studies on how technology redefines the politics of religious authority.

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FAİZSİZ FİNANSMAN BONOSU SUKUK UYGULAMASI VE MUHASEBELEŞTİRİLMESİ

Author(s): Recep Yılmaz,Rabia BÖLÜKBAŞI / Language(s): Turkish / Issue: 1/2020

Aim: Sukuk, which gives ownership rights over goods or services subject to exportation and provides profit share or rental income instead of interest income due to the prohibition of interest in terms of Islamic law, has become a new investment instrument used quite frequently by participation banks around the world and especially in our country. In this study, by examining the accounting record systems used between banks, it has been aimed to do the accounting records of the given example in the study. The study, by examining the financial-tool Sukuk, is intended to contribute to the literature on its accounting. Method: There has been accounting records made in accordance with the given example in the application section of the study. In the study, firstly, the definition of sukuk, its varieties, advantages and disadvantages, risks and differences with bond are explained. Finally, considering the General Communique on Accounting System Application and the chart of accounts and TMS/TFRS, an application was included, and accounting records were made for Originator, asset leasing company and investor. Results: Conventional banks and participation banks use different accounting registration systems for investment vehicles. Conclusion: This essay is intended to the accounting of one of the investment tools, sukuk, by loan originator, asset leasing company and investors.

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Fıkıh Usulü Tarihinde Dört Temel Şer‘î Delil Tertibinin Gelişimi

Author(s): Ahmet Temel / Language(s): Turkish / Issue: 40/2020

This study deals with the four-source order, which is commonly accepted in the Sunni legal theory, within the limits of a historical investigation of Islamic legal theory. This article aims to determine in which phases this recognition has occurred and with what sort of changes. The majority of extant uṣūl works that have been produced in different traditions and some other sources in different disciplines have been defined as the research universe of this study. Among them, those which could represent these works have been cited in this article. Since it was de-signed as a historical investigation and evaluation study, some dimensions of the subject that may be of interest in terms of legal philosophy and theory are not included in the analysis. These topics some of which have already been studied in certain works are suggested for further re-search.In this article, two main questions are addressed: First, the question of which actors have histori-cally contributed to the acceptance of the four-source order in the form of kitāb, sunna, ijmā‘ and qiyās. On this point, contrary to what is claimed in some contemporary scholarship, it has been revealed that the thesis that al-Shāfi‘ī was the responsible authority for this four-source order is not accurate. It is seen that the scholars living in the second to fourth centuries A.H. mentioned these four sources together with different sources such as reason, definite deduction, sense, language, recurrent reports and famous narrations. Among these, al-Jaṣṣāṣ’s explanation as to whether qiyās can be counted as a source together with kitāb, sunna, and ijmā‘, which is the main subject of discussion in the next periods, has significantly illuminated the rational ground for qiyās to take place in this four-source order. Beginning with the fifth century, the tendency to restrict the notion of dalīl to definitive sources, had a consequence in the direction of excluding qiyās from the apparatus of source order; hence it was generally accepted that the sources were limited to kitāb, sunna, and ijmā‘ during that time. However, in the same century, it seems that jurist-theoreticians made the claims that qiyās should be recognized together with these three sources. At this point, it seems that the Hanafi theoreticians, especially al-Pazdawī and al-Saraḥsī, took an important step of expanding their acceptance of the main sources by claiming qiyās as the fourth source after mentioning the three main sources as kitāb, sunna, and ijmā‘. Al-Sam‘ānī, who could be regarded as a contemporary of them and who had been once in the Ḥanafī school before shifting to the Shāfi‘ī school, gives us the most obvious testimony of this transition. He lists the three sources as aṣl and others as ma‘qūl al-aṣl, a classification developed by some Shāfi‘ī jurist-uṣūl scholars including al-Baghdādī and al-Shirāzī. However, instead of this classification, he states that the order of the sources developed by jurists in the form of kitāb, sunna, ijmā‘, and qiyās is more accurate. The Ash‘arī theologian-theoreticians of the time including al-Juwaynī, al-Ghazālī also defend an attitude against counting qiyās among main sources by limiting three sources as kitāb, sunna, and ijmā‘. Since the logic-oriented uṣūl works marked the style of uṣūl traditions to a great extent afterwards, the understanding of the theologian-theoreticians who excluded qiyās from the sources and highlighted the three main sources continued to be effective in the sixth and seventh centuries A.H.. However, Fakhr al-Dīn al-Rāzī, the important uṣūl scholar of the period, provides strong evidence that the four-source order have increased its effect during that time. In his famous tafsīr work, al-Rāzī states that “the jurists accepted the sources of the sharī‘a in the form of kitāb, sunna, ijmā‘, and qiyās”, while he retains the three-source order in his uṣūl work. Even though he does not explicitly promote four-source order in his uṣūl work, he does list these four sources when mentioning the sources of the judgments in a topic. As a matter of fact, although al-Rāzī refrains from mentioning four-source order clearly, one of his leading followers al-Bayḍāwī does explicitly state this four-source order at the beginning of his work. Unlike his theologian-theoretician predecessors, al-Āmidī does not hesitate to include qiyās in the scope of shar‘ī dalīl, but he maintains the same reservation by classifying three sources as primary and qiyās and istidlāl as secondary. It is understood that the “three plus one classifica-tion” initiated by al-Pazdawī and al-Saraḥsī was preserved by the Hanafī uṣūl scholars of the sixth century A.H. such as al-Lāmishī, al-Samarqandī, al-Usmandī. However, it is seen that in the sev-enth century A.H., beginning with Ibn al-Sā‘ātī, this order started to be pointed out directly in the form of four sources without the need of mentioning classification in the form of three plus one. When the eighth century A.H. is reached, the order of four sources have started to be pointed out with a special term as al-adillat al-arba‘a (the four sources). In the same century, the Mālikī scholar Ibn Juzay al-Kalbī and Ḥanbalī scholar Ibn Mufliḥ give the shar‘ī dalīls in the form of kitāb, sunna, ijmā‘, and qiyās, which shows that this order was established by the eighth century A.H..The second question is the one of when the term al-dalīl al-shar‘ī started to be used for the sources of sharī‘a and when it was settled. The term uṣūl, from which the title of this scientific discipline was derived, was widely used in the early periods to indicate the sources of sharī‘a. Although by time different terms such as ḥujja, burhān, amāra, and dalīl were used simultaneously for the sources of sharī‘a, the term dalīl gained a greater acceptance over time. The Ḥanafī uṣūl scholars, probably beginning with ‘Īsā b. Abān used the term ḥujja (pl. ḥujaj) more dominantly for a long time. The Hanafi uṣūl scholars, even al-Dabūsī, who used the term of dalīl in the title of his uṣūl work, preferred the term ḥujja until Ibn al-Sā‘ātī. In addition to being one of the first scholars representing the change in the classification of sources in the Ḥanafī tradition, Ibn al-Sā‘ātī stands out also one of the first Ḥanafī scholars in preferring the term dalīl over the term ḥujja. This re-search has shown that these two elements can be mentioned in the answer to the question of how Ibn al-Sā‘ātī, who is mostly listed in the first place, by the authors who mention mamzūj styled uṣūl (arguably claimed to be a hybrid style between the theologian-oriented and jurist-oriented writings) works, differed from his Ḥanafī predecessors. The main actors, however, in the domina-tion of the term of the al-dalīl al-shar‘ī in the literature of Islamic legal theory were the theologi-an-theoreticians. The leading scholar responsible for this usage was Abū al-Ḥusayn al-Baṣrī, who used this term consistently for the first time throughout his work. After al-Baṣrī, theologian-theoreticians, whether Mu‘tazilī or Ash‘arī, preferred the term dalīl for sources of sharī‘a. Yet, it took a few more centuries for Shāfi‘ī and Ḥanafī uṣūl scholars to widely settle this term for that meaning.

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Fudayl Çelebi’nin ed-Damânât fi’l-furûi‘l-Hanefîyye Adlı Eserinin Tazminat Literatürü İçerisindeki Yeri

Author(s): Kamil Yelek / Language(s): Turkish / Issue: 1/2020

The law of responsibility (compensation), which was formed around the concept of the ḍamān and was developed by the scholars within the system of furû‘ al-fiqh (substantive law) over time, constitutes one of the important parts of Islamic law. Although compensation law (ḍamān) was not addressed as a private subject in the first period fiqh literature, it is seen that the literature on this specific area started to emerge after the early period. It is the Hanafi jurists who first brought together these issues that are scattered in the classical books of fiqh that are related to the law of responsibility. Compensation law took its classical form in the texts of the early periods and was shaped around the views of the founding imams of the Ḥanafī school (madhab). It has later been expanded with the fatwā and interpretations of the Sheikhs (mesāikh) of Hanafi in the type of waqi'at works. These works were a product of the need for the law to adapt to the new conditions. These issues, which are related to the com-pensation law in the Hanafi school have been covered as a special section (chapter) in the studies that are classified as waqi'at, such as Usrūshanī’s al-Fuṣūl fī al-muʿāmalat (Fuṣūl al-Usrūshanī), ʿImād al-Dīn al-Marginānī’s Fuṣūl al-iḥkām fī uṣūl al-aḥkām and Shaykh Badr al-Dīn’s Jāmiʿal-Fuṣūlāyn. Later, the topics discussed in these works were developed and contin-ued, and ultimately separate works related to this field have been copyrighted. In this study, the kinds of development and expansion which are in the literature and related subjects will be discussed by examining the above-mentioned works. Therefore; first of all, the first examples of Hanafi jurists related the compensation will be analysed comparatively. Afterwards, the place of ad-Ḍamānāt fī al-furūʻ al-Ḥanafīyyah of Fuḍayl Chalābī (d. 991/1583), one of the Zenbillizade’s, will be addressed.

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HALAL MESO I SAVREMENI NAČIN KLANJA ŽIVOTINJA

Author(s): Hakija Kanurić / Language(s): Bosnian / Issue: 11/2019

The meat of some animals is absolutely forbidden to consume while the meat of others is allowed under certain conditions. Animals that live solely in water are allowed without slaughter, except for land animals whose meat will only be allowed if they are slaughtered in a special way. Due to that it is necessary to fulfill certain conditions related to the animal itself, the person who is slaughtering, the way it has been done and the accessories it uses. This paper deals with the analysis of these conditions, with an overview of the ways of killing animals in modern slaughterhouses. By comparing the four known mezheb, the views of scholars about the types of animals whose meat is forbidden to be eaten are explicated. Also it highlights the issues in which scholars have taken a unique position and the issues in which they have diverged, as well as the arguments they invoke and which opinion is preferred.

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Hanefî Mezhebinde Teaddî ve Taammüd Kavramının Kullanımı ve Bunun Çağdaş İslam Hukuku Çalışmalarına Yansıması

Author(s): Kamil Yelek / Language(s): Turkish / Issue: 42/2020

The concept of “breach of obligation” and “unlawfulness” in the Turkish Law of Obli-gations is expressed in the classical sources of Islamic law with the concept of ta‘addī. However, this concept in Islamic law has a meaningful width to cover the element of “breach of obligation” and “fault” in the responsibilities arising from the contract in the Turkish Law of Obligations; and in unfair acts, the element of “unlawfulness” and “fault”.While explaining how to compensate for direct causes (mubāshara) and indirect causes (tasabbub) in classical Ḥanafī sources, what we usually encounter here and which determines the responsibility is the concept of ta‘addī. However, the word ta‘addī, which is one of the most basic concepts of compensation (liability) law has not been completely separated from the term ta‘ammud in classical Islamic law works. Since the concept of ta‘addī and ta‘ammud were sometimes used interchangeably. For example, Ibn Nujaym (d. 970/1562) and Abū Sa‘īd al-Khādimī (d. 1176/1762) preferred the concept of ta‘ammud instead of ta‘addī while expressing the rules regarding mubāshara and tasabbub. This situation is also regulated in the articles 92 and 93 of Majalla. The Ottoman scholars Mawlānā Meḥmed Izmīrī (d. 1165/1751) and Kirkagacī (d. 1287/1870) and one of the contemporary Islamic jurists Muṣṭafā Aḥmad ez-Zarqā state that the concept of ta‘ammud is not correct here; and one of the contemporary researchers, Muhammed Ahmad Siraj explains that it is a mistake to prefer the con-cept of “ta‘ammud” in the relevant articles of Majalla. However, it is not possible to say that Majalla writers made a mistake here, as Siraj said. Because these expressions, which became a rule in Majalla, were taken from Khādimī’s work titled Majāmi‘ al-Haqā’iq and Ibn Nujaym’s al-Aṣbāḥ wa al-Naẓā’ir. Although one of these articles was taken from the mentioned work of Khādimī and the other article from Ibn Nujaym, both jurists convey the understanding existing in the Ḥanafī school. But, while Ibn Nujaym and Khādimī conveyed this, they preferred the concept of muta‘ammid instead of muta‘addī. The examples given by both Ibn Nujaym and Khādimī and Majalla wri-ters and their explanations show that the concept of ta‘ammud in these places is not only in the meaning of intent and it is used in the meaning of ta‘addī.This issue, which is related to the terminological content of the ta‘addī concept, has caused confusion in Islamic law written in Turkish on compensation law. As a matter of fact, it is seen that the word ta‘addī is reduced to the concept of “unlawfulness” which is one of the conditions of tort liability in the Turkish Law of Obligations and used in a way that corresponds to this in some of these studies. Even in some of these studies, it is stated that there is no difference between the concept of unlawfulness in the law of obligations and the word ta‘addī in Islamic law. However, using the term ta‘addī in the classical fiqh literature in the same sense with this concept is problema-tic. Because the terminological content of the term ta‘addī and the content of the unlawfulness in the Law of Obligations do not exactly match, and the concept of ta‘addī has a broader meaning beyond the unlawfulness.Although the concept of ta‘addī is used in these studies in a way that corresponds to the concept of unlawfulness, the case studies used in the classical sources of Ḥanafī school show that this concept also includes the meanings of intent (ta‘ammud) and neglect (taksir). Therefore, the word ta‘addī should be seen as a top concept that inclu-des both the concepts of ta‘ammud and taksir. However, this situation does not mean that the word ta‘addī always includes the concepts of ta‘ammud and taksir and meets both at the same time. Because ta‘addī in an event that requires responsibility for compensation sometimes results from the intended act of the person and sometimes from the negligent act. In other words, the concepts of ta‘ammud and taksir in the classical Ḥanafī sources cause the action to gain the feature of being unlawful rather than being an element or condition that creates the responsibility for compensation in unfair acts. Whereas, fault (intent and negligence), which is one of the conditions of unfair act in the Law of Obligations, appears as a separate element; it is regarded as a concept that causes the action to gain the feature of being ta‘addī in the classical Ḥanafī sources. Accordingly, the concept of ta‘addī covers both the unlawfulness as well as the intent and negligence, in other words, both the elements of the unlawfulness and the fault in the Law of Obligations.As it is seen, the concept of ta‘addī in the classical Ḥanafī sources cannot be completely different from the concepts of “ta‘ammud” and “taksir (negligence)”. So, these concepts are sometimes used interchangeably due to the close relationship between them. As in the books of Khādimī and Ibn Nujaym, the use of the concept of ta‘ammud instead of ta‘addī in some sources is therefore. However, the concept of ta‘addī separa-tes from ta‘ammud and taksir concepts and emerges as a unique concept in contemporary Arabic literature. As a matter of fact, the concept of ta‘ammud and taksir started to be studied under the term “al-khata'” in these new studies. In other words, the concept of “fault” in the Turkish Law of Obligations has been used to correspond to the term of “al-khata'” in contemporary Arabic literature. In this case, the element of ta‘addī in contemporary Islamic law literature, corresponds to the concept of “unlawfulness” in the Turkish Law of Obligations, and the element of “al-khata'” to the concept of “fault”.Similar to this process about the conceptual development of the word ta‘addī in Islamic law, has been experienced in Roman law before. As a matter of fact, the concept of unlawfulness (iniuria) was seen as a top concept, including the word fault (culpa) in the beginning periods. But the concept of fault was adopted as a distinctive term apart from the concept of unlawfulness in the Justinianus period.As a result, the concept of ta‘addī, which is used in the classical Ḥanafī sources to cover both the concepts of “ta‘ammud” and “taksir”, is a top concept that can include both the element of “unlawfulness” and “fault” in the Turkish Law of Obligations. For this reason, the elements of “unlawfulness” and “fault”, which are the conditions of the unfair act of responsibility, should be handled under the title of “ta‘addī” in Islamic law studies or it should not be forgotten that their use in classical sources is not exactly like this.

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Hanefi Usulünde Fasid Sayılan İstidlallerden İstifade İmkânı

Author(s): Mustafa Çil / Language(s): Turkish / Issue: 2/2014

Principles of Islamic Jurisprudence, in addition to its mission of determining the ruling methods from the Islamic sources, assesses the possible methods from various point of views and decides on their validity. The aim of this work is to review the methods that are not validated by Hanafi School of Thought Jurisprudence, analyses of the reasons for their invalidation, and possibility of benefiting from those in judging or in another purposes without violating the essential principles of the Hanafi School.

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Hanefî ve Zâhirî Usûlcülerin Kur’ân’ın Âmm Lafızlarının Delâleti ve Haber-i Vâhidle Tahsîsine İlişkin Görüşlerinin Fıkhî Düzenlemelere Etkisi

Author(s): Mustafa TÜRKAN / Language(s): Turkish / Issue: 1/2020

The subject of general utterances (al-lafdh al-āmm) being certain or presumptive in their usage as an indication to all their members is controversial amongst the methodists. Ḥanafī methodists suggest that the indication of general utterances to all of their members as certain and unless they are specified with a certain evidence, they can’t be specified with a presumptive evidence. Like the ḥanafī methodists, the ẓāhirī methodists also suggest that the general utterance is certain indicant for all of its members and can be specified only with an-other evidence in the same rank. The main difference between the two groups focuses on whether al-khabar al-wāhid (single prophetic narration) is a certain or a presumptive evi-dence in terms of certitude. According to ḥanafīs, al-khabar al-wāhid is a presumptive evi-dence and unless the general utterances in Qur’ān are specified initially with another certain evidence, they can’t be specified with al-khabar al-wāhid. However, al-khabar al-wāhid is a certain evidence according to ẓāhirīs and it can specify general utterances in Qur’ān. In this study, the comparison of the views of the methodists of two schools regarding the indication of general utterances in Quran and their specification (takhsīs) with al-akhbar al-wāhid is made and their influence on Islamic Law regulations is studied afterwards. In this study, the two sect’s approaches are compared over the provision of reading al-Fatehah during prayer, the number of milk sucking to establish the kinship, the rights of women divorced with bain talaq and the execution of the death penalty in the Harem region.

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