Kitap değerlendirme: Hanefîlerde Mezhep Usûlü: Şerhu Ukûdi resmi’l-müftî
The review of: İbn Âbidîn, Hanefîlerde Mezhep Usûlü: Şerhu Ukûdi resmi’l-müftî, çev. Şenol Saylan, (İstanbul, Klasik Yayınları, 2016), 342 s.
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The review of: İbn Âbidîn, Hanefîlerde Mezhep Usûlü: Şerhu Ukûdi resmi’l-müftî, çev. Şenol Saylan, (İstanbul, Klasik Yayınları, 2016), 342 s.
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In the last quarter of the 19th century and the first quarter of the 20th century, many books and treatises dealing with talfīq were written, and many fatwās were issued in parallel. Although the majority of the scholars were against talfīq between the 17-18th centuries, this strong opposition was broken in the last quarter of the 19th century, and some of the scholars living in this period argued that talfīq was permissible. On the other hand, there are also jurists who opposed to talfīq. One of the main references of the jurists who do not accept talfīq on this subject is the views of scholars who are against talfīq in previous centuries. In this half-century period, one of the main reasons for the discussions about talfīq is whether or not one can benefit from it in the codification of Islamic Law. Indeed, the issue of copyright was brought to the agenda during the preparation process, and amendment of Majalla, and this issue was discussed in the draft laws prepared on family law. Especially some prominent scholars of the period, such as Elmalılı Hamdi Efendi, stated that new laws could be made by making talfıq by staying within the tradition of fiqh instead of taking laws from the West. Likewise, in a document criticising Majalla, it was emphasized that talfıq should be used. These discussions about talfīq took place in Istanbul as well as in other important centres of the Islamic world, such as Damascus and Cairo.
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The early period Ismaili jurist Al-Qādî al-Nu’mān appears as an important figure in the formation of Ismaili jurisprudence. There is very little information about Kadı Nu’mân’s family, childhood, education and intellectual environment. His full name is Abû Hanîfah Nu’man b. Muhammad b. Mansûr al-Qādî at-Tamîmî Al Qayrawānî. He was born around 290/903 (late 3rd (9th) century) into an educated family in Qayravan in North Africa. There are different opinions about the sect he belonged to when he was growing up. On the other hand, it is difficult to say for certain whether Nu’mān received education in the Ismaili sect due to the understanding of taqiyya in the madhhab. However, it is understood from the basic jurisprudence texts Nu’mān wrote that he most likely did not receive a Sunni education. Historians refer to him as ‘Qadi Nu’mān or Abu Hanifah al-Shi’i’ in order not to confuse him with the imam of the Hanafi school. Qādî Nu’mān served at different levels of the Fatimid State. Around 313/925, he entered the service of the first Fatimid caliph, Mahdi (r. 909-934 CE/297-322 AH), as a copyist and secretary. During the reigns of the third caliph Mansur and the fourth Fatimid caliph Mu’izz (d. 365/975), Qādî Nu’mān first served as a judge in Tripoli and then in Mansouriya, the Fatimid capital. After the Fatimids conquered Egypt and the center of government was moved to Cairo, Qādî Nu’mān was appointed by the fourth caliph Mu’izz as the head of the appellate courts (maẓālim). Qadi Numans career was at the peak in the period of Caliph Muiz. Qādî Nu’mān worked as a judge in the Fatimid State for about twenty-six years and continued this duty until his death in 363 (973). After the fall of the Fatimid caliphate, there haven’t been any other Fatimid or Ismaili jurists. Qādî Nu’mān is considered by contemporary Ismaili writers as a figure who systematically transformed Ismaili fiqh into an independent sect of fiqh. It can be said that Ismaili fiqh was developed through his works in the Fatimid period. His works continued as the main references in the fiqh studies and after the Fatimid period. With the death of Qādî Nu’mān, the period of ijtihad in Ismaili fiqh and its the establishment phase of Ismaili fiqh came to an end; The sect, in which esoteric interpretations were at the forefront, emerged as a distinctive school of fiqh by discarding ambiguity. Qādî Nu’mān was a very productive writer. He wrote important works related to the field of furu al-fiqh and usûl al-fiqh. Among his works, Ikhtilāf uṣūl al-madhāhib is undoubtedly one of the most important works in the early history of fiqh methodology. The work in question, which was originally written with the aim of rejecting the Sunni fiqh method, discusses the approaches of the Sunni schools of fiqh on ikhtilāf, taqlid, ijma, nazar, qiyas, istihsan, ijtihad and ra’y in a polemical manner. It reveals the differences of the Ismaili method from the Sunni method in terms of the sources on which the fiqh is based, the authority to make ijtihad and the theory of interpretation of the texts. Qādî Nu’mān examined the relationship between reason and revelation in general and the role of religious authority in comprehending and interpreting the texts while criticizing Sunni methods. Ikhtilāf uṣūl al-madhāhib has the characteristics of the works of development period as a form. It is possible to observe the question-answer and dialectic form which can be seen in the works of the development period throughout the work in question. Qādî Nu’mān endeavoured to persuade his opponents with a dialectical and argumentative style. Again, he replied to the Sunnis, who were his interlocutors, with their own proofs. In addition to these, Ikhtilāf uṣūl al-madhāhib has a unique feature in the matter of content. Because it is not very familiar to any Sunni handbook of usûl al-fiqh. It does not mention the hâss, âmm, ijma, qiyas, amir, nahy, alfaz bets, etc. The text is very similar to the Ahbari movement of the Jafari sect for it rejects all forms of ijtihad. It was written at a time when fiqh was not yet stable. Ikhtilāf uṣūl al-madhāhib gives us crucial information about the development of different usûl and fiqh sources in the middle of the fourth century. However, what is interesting here is that the information he gives about Ismaili method and fiqh is very little compared to the one about Sunni method and fiqh. Much of it centered on Sunni thought and its rejection. However, his ultimate goal was to defend the Ismaili doctrine. Ikhtilāf uṣūl al-madhāhib has shown us that Shiite works are as valuable as Sunni works in shedding light on the historical development of Sunni method of fiqh. The most important contribution of the work to fiqh is that it illuminates the early history of fiqh, the period of approximately one and a half centuries after Shafi’i’s death. In addition, it has been understood from the aforementioned work that the Sunni fiqh method is at an advanced level in terms of development in the early period.
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The work named Fusûlü'l-İmadî, which belongs to Ebü'l-Feth Zeynüddîn el-İmadî, the grandson of Burhaneddin el-Mergînânî, the owner of the famous Hidaye, which includes the subjects of Fürû-i Fiqh and the law of trial, has been one of the main works that has been applied by influencing many mufti, kadi and jurists, especially the Ottoman sheikhs. The work is also important in terms of being a source for many fatawa and fürû-i fiqh works. The fact that the work written in the Fergana region is one of the main sources referenced both in the Ottoman geography and in other Muslim geographies also shows that the work is valuable. In this study, by pointing out the importance and value of the work, it was tried to determine the contribution of the work to the Ottoman period fetâvâ mecmuas and Hanafi fiqh literature. In the study, the life of Ebü'l-Feth Zeynüddîn el-İmadî was mentioned, and his work Fusûlü'l-İmadî was examined in detail. The contribution of the Ottoman Fetvâhâne, which uses Fusûlü'l-İmadî as a source, to some of the fetâva works, which are accepted as one of the most respected fetâva journals, is discussed and some quotations from the work are included with their examples. In addition, the contribution of the work to the Hanafi fiqh literature was examined on the basis of some fürû-i fiqh works of the Ottoman period and the work called Mir'ât-ı Mecelle. Thus, by pointing out the importance of Fusûlü'l-İmadî and his contribution to the literature of fiqh and fatwa, this work was drawn attention to new studies.
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As a fiqh (Islamic jurisprudence) term, the concept of “ignorance” ex-presses uncertainties in legal transactions and, in Islamic law, is accepted as a situation that negatively impacts the legitimacy of contracts. If the sale is deferred, clarification of the delivery time of the price to be paid for the goods sold, the number of installments, etc. during the contract is considered essential for the validity of the transactions in order not to damage the principle of mutual consent in purchase and sale transactions and to avoid conflicts between the parties. However, not every uncertainty is considered an obstacle to the validity of the contract, and minor uncertainties that do not lead to disputes are tolerated. The fiqh sources of four Islamic sects contain many examples of these uncertainties. This study firstly examines the effect of ignorance on the validity of purchasing contracts in Islamic law using the issues in classical fiqh sources and then analyses the housing sales contract of TOKI’s (housing development administration of Turkey) “my first house social housing project” in this context from a fiqh perspective. In addition, the study addresses the related housing sales contract in terms of the juristic preference method by considering the aspect of meeting an important need of society and realizing the purpose of this project. Then, while evaluating the issue from a juris-prudential point of view, the study discusses that the absolute and strict interpretation of the rule of “ignorance renders the contract void,” which is adopted by ignoring the public interest, does not produce favorable results.
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In this article, the views of Yusuf al-Qaradawi (d. 2022) on the change of the fatwa are discussed. Other issues of the fatwa method are generally excluded from the scope. At the point of solving new problems, the change of the fatwa is important. The aim of the study is to reveal al-Qaradawi's contribution to the issue of changing the fatwa. In this study, in which the qualitative research method was used, thematic reading was made. As it is known, scholars have adopted the idea that the provisions open to ijtihad can be changed. According to al-Qaradawi, there is even a consensus on this. Likewise, there is a consensus that the final provisions are not subject to change. al-Qaradawi mentioned that independent ijtihad activities should continue. Because only in this way can fiqh remain alive and dynamic. Therefore, it can solve new problems. Therefore, the idea that the door of ijtihad is closed cannot be accepted. On the other hand, scholars should take into account the ancient jurisprudence. It should contribute to this information by adding or correcting it. The principles that allow the change of the fatwa are four in the form of time, place, situation and custom. al-Qaradawi stated that he added six new elements to these. These are as follows: The change of information, the change of people's needs, the change of people's power and possibilities, umumu'l-balwa, the change of social, economic and political conditions, the change of opinion and idea. The author has reached these six elements as a result of a deep research. Muftis should take these factors into consideration when issuing a fatwa. Because the maslahah of the servants and the principle of convenience require this.
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Ḥanafī scholars resorted to various methods such as abrogation (naskh), specification (takhṣīṣ), preference, (tarjīh) interpretation (taʾwīl) in order to eliminate the incompatibility between the views of the founding authorities of the madhab (ashāb) and the nass (verses and hadiths). According to the famous narration attributed to Abu’l-Hasan al-Karkhī (d. 340/952), one of the Iraqī Ḥanafī scholars, it is thought that the nass contradicting the views of the madhhab scholars are abrogated, or that other evidence is preferred over them, but it is more appropriate to reconcile and interpret them. However, this approach adopted by the Hanafīs has brought some criticism and accusations that the views of the madhab scholars are prioritized over the nass or that these were ignored in the face of their views. On the other hand, the discourse that the views of the madhab scholars should be preferred in case of incompatibility between the views of theirs and the nass, seems problematic and in need of explanation at first glance. Due to the reason mentioned, these statements, which reveal the general attitude of Ḥanafīs, need to be explained theoretically. In this study, firstly, the Hanafīs’ justifications for adopting this approach are discussed, and then it is seen that this does not mean “the nass is ignored or the views of the jurists are prioritized” as it is claimed.
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The primary source of income in the Ottoman Empire, like in other pre-vious and contemporary states, was land. For this reason, the private ownership of land, especially those used for grain production, was avoided, and efforts were made to keep them as state-owned or public lands known as "mirî" or "memleket arazisi". This situation brings up the issue of cultivating the land and generating income from it. The Ottoman Empire further developed the timar system, which was also implemented by the previous states, and allocated land to families based on its productivity by dividing it into certain sizes. These families were required to pay a tax known as "çift resmi", "raiyyet resmi", or "kulluk akçası." The system was based on the cultivation of the land by the peasants, thus ensuring both the production of crops without venturing food security and providing the state with the necessary tax revenue. Thus, it was necessary for the peasants not to abandon their land. One of the precautions taken to ensure this was "cebrî ikamet" (compulsory residency), and the other was "çift bozan resmi" (a tax imposed on those who leave their land uncultivated). Regulations regarding these measures have been included in the Kanunnames (legal codes) since the time of Fatih Sultan Mehmet, and they remained in effect until the 1858 Land Code. Since the nişancıs who prepared the Kanunnames had a good command in Islamic fiqh and the laws were at least theoretically approved by the sheikh al-islam until the mid-17th century, no one among the Ottoman scholars was known to oppose these regulations. Due to the serious disruption of the timar system and the increasing oppression of the peasants, criticisms of the "çift bozan" and "cebrî ikamet" measures began among the scholars in the Damascus region, led by Hayreddin Remlî, in the second half of the 17th century. This criticism intensified over time. In fact, two separate treatises were written on this issue. The scholars in Istanbul were also partly affected by this criticism. In this article, the "çift bozan" tax and its status in Islamic law will be primarily examined. All views in favor or against this issue will be put forth as much as possible, and an evaluation will be made while trying to come up with a different perspective.
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The menace of extremism and terrorism over the past years has been largely aided through a creation of the chaos of fatwā (legal and moral norm in Islam) by extremists. This is an impudent violation of the venerable traditional institution of fatwā in Islam. With a hidden agenda in mind, the perpetrators of aberrant and unregulated legal pronouncements as well as false and misconstrued Islamic teachings and principles succeeded in some way to disturb the universal Islamic core values of peace, coexistence, stability and security across the globe. Having this in mind, the Dār al-iftāʼ („the House of fatwā“) of Egypt has initiated a global authoritative fatwā institution under a single umbrella organization located in Cairo, Egypt, to generate profoundly reliable fatwās for the sake of refuting false fatwās in the name of Islam. Thus, since its inception, the General Secretariat for Fatwā Authorities Worldwide has held five conferences which have resulted in numerous initiatives, which are designed to correct the false and clarify the true and authentic teachings of Islam. Indeed, it aims to develop tools and offer training for the muftīs, the issuers of fatwā, to enable them to manage fiqh-juristic differences as well as to equip them with reliable references for making fatwā through an acceptable procedure, aiming to regulate a peaceful relationship not only within Muslim communities but also between Muslim and non-Muslim societies as well as a peaceful relationship between Muslims who abode within non-Muslim societies. In all circumstances, the Muslim fatwās must be wisely and peacefully delivered because the very meaning of the term “Islam” is the message of peace. In order to achieve this goal, the Egyptian General Secretariat for Fatwa has initiated an e-platform for training and providing fatwā skills to the muftīs. This e-platform enables muftīs to relate Islamic legal norms to the context of real human life. Besides, the institution of the global Egyptian fatwā offers: ‘a fatwā research center’; ‘a global fatwā index’, ‘a futurology observatory for fatwā’, ‘fatwā services for Muslims living in non-Muslim countries’. This article is about goals and achievements in securing the traditional institution of fatwā from a flagrant deviation and distortion of the fatwā reliability and validity today.
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The article shows the growing role of Islamic economy and capital in the world. Selected undertakings to encourage Islamic capital investment in France, the UK and the USA are presented. The conclusion is that it is necessary to harmonize Islamic accounting with conventional accounting, showing both the reasons and the difficulties of legislative work in this area.
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This study examines and analyses the implementation of Musharakah, Mudharabah and Murabahah financing and the obstacles in implementing such financing at Bank Muamalat Indonesia Mataram Branch. The type of research used is normative empirical using statutory, sociological and conceptual approach methods. Types and sources of data are carried out using primary and secondary legal materials and field data. Based on the research results, it is known that implementing Musharakah, Mudharabah and Murabahah financing at Bank Muamalat Indonesia Mataram Branch from the perspective of Islamic law has yet to be appropriate in several aspects. The obstacles in funding come from two factors, namely external and internal.
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One of the leading scholars of the Ottoman period is Kınalızâde Ali Çelebi (d.979/1572). During his lifetime, he worked as a mudarris in more than one madrasah and served as a judge. Kınalızâde Ali Çelebi has developed himself in a versatile way in terms of scientific equipment, and he has not only been limited to şer-i sciences, but has also produced works in fields such as philosophy, literature, poetry. Many copies of Kınalızâde Ali Çelebi, who is essentially a fiqh scholar, are available in libraries in the field of fiqh. Some of these works have not been published yet, and studies on their publication and analysis continue. Haşiye ala Dürü-l Hükkam, written by Kınalızâde Ali Çelebi as an annotation, has a volume of approximately fifty-seven and a half sheets, and we have three copies of it. In the copy of this work that we have dealt with, subjects such as tahara, wudu, ghusl, mash, tayammum, etc., which we call the introductory part of fiqh, are discussed. In this work, the author not only contented with fiqh information, but also occasionally provided very useful information by quoting Arabic grammar, word analysis, and citations from the works of some jurists.
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This study highlights international and traditional documents that ensure the protection of human rights in relation to Islamic law. In this regard, we will make a brief presentation of the main sources that guarantee the protection of the citizens of the states under the jurisdiction of Islamic law.
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This paper focuses on a scientific analysis of the genesis and historical development of the good faith principle as a doctrinal interpretation of Latvian regulations. It is about the evolution of attitudes toward the principle of bona fides in modern legal science and case law, starting with its origins in archaic Roman law and its rediscovery by Justinian’s Corpus Juris Civilis through its application in the Western medieval ius commune and its continental renaissance in the early twentieth century, considering its limited position in the Code of Civil Laws of the Baltic Provinces to its triumph in Latvian civil law. This comparative historical study shows that a clear definition of good faith can be found through a system-historical interpretation of the good faith rule. This should help to determine the nature of subjective rights and obligations under any legal rule governing specific legal relationships.
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This paper elaborates on how the scholars of the Hanafi School of Law theoretically considered mufesser and muḥkem. Mufesser and muḥkem represent two out of four categories (ẓāhir, naṣṣ, mufassar and muḥkem) in the categorization of the clear meaning of the legislative text (wāḍiḥ) in the Hanafi school. Naming examples, the paper analyses the use of mufesser and muḥkem in the Hanafi scholars’ ijtihād and shows the results and consequences of their understanding of the indications of these categories. At the beginning of the paper, the discipline of linguistics in Uṣūlu-l-fiqh is briefly explained, and then the linguistic and terminological definitions first of the concept of mufesser and then also of muḥkem in the Hanafi School of Law are presented. At the end, the legal value of mufesser and muḥkem and the value of their indications in legal reasoning in Shariat (ijtihad) are explained.
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A few Quranic verses implicitly prohibit uncertainty in contracts, while hadith texts explicitly prohibit it. The analysis of primary sources of Islamic law and the views of eminent scholars show that uncertainty in contracts is tolerated in situations where there is a need for the contract and where the potential harm from the risks and uncertainties in the contract is negligible compared to the interest achieved by it. This paper defines uncertainty in linguistic and terminological terms, presents arguments for the prohibition of uncertainty, highlights the specificities that render a contract prohibited due to uncertainty, elaborates on the situations in which uncertainty in contracts is tolerated, and provides practical, contemporary examples.
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Today, when digital transformation is progressing rapidly, the digital product market is also forming. It is seen that digital products are used, valued and circulated in the market in many sectors. In fact, as the effect of the rapid progress of the digital world, many university candidates have put software engineering on their agenda and put it at the top of their choices. In the digital sector, where such an economic, social, political and technological environment is formed, digital products are bought and sold in various ways and large capitals enter the market. It comes to the fore whether a product that does not have a physical existence, that cannot be touched or seen with the naked eye, in other words, whether the asset will be accepted as a property of Islam. Because Muslim societies are also in a dynamism in both the metaverse and the NFT world, where digital products are bought and sold. They also invest large sums in the digital world. However, Muslim societies cannot freely use every product or thing that exists as a commodity. In order for Muslim societies to use something as property, it must be "muntefeu'n-bih" or, in other words, "mal-ı mutakavvim". In this study, the definition of the concept of property in Islamic law will be revealed. Thus, starting from the characteristics of the concept of goods, digital products will be compared and an opinion will be expressed accordingly. While making this evaluation, digital products will be evaluated in general, while all digital products will not be considered separately.
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The aim of this article is to compare certain segments of the Shariah law and the positive legal system of Serbia and to present the similarities and differences thereof. The comparison presented here is based on the general characteristics of the two legislatures without a deeper analysis of the financial systems of the two legal frameworks and the barriers to the institutionalization of Islamic banking in Serbia. In other words, this article represents an initiating platform in the process of analyzing the common principles and meeting points of Sharia law and the positive legal system of Serbia. The similarities between these two legislative systems represent a contribution to further research work on characteristics of the financial systems of Sharia law and the positive law of Serbia and the potential for implementation of Islamic banking in Serbia.
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Under the Extraordinary circumstances theory are implied concluded contracts or obligations, such as purchase contracts and similar ones, whose realization has been delayed, so that after their conclusion, extraordinary circumstances and opportunities occur that dictate that the application of contractual obligations becomes harmful and unfair to one contractor in relation to their application in normal circumstances and opportunities. The arisen extraordinary circumstances, in which the application of the above-mentioned material contractual obligations produces harmful and unfair consequences for the contracting parties, dictate that the method of their implementation must be reconsidered, reduced and subdued to dimensions that will have the consequences of justice and the elimination of the above-mentioned damage and injustice. Therefore, the aim of this study is to investigate the legality and legitimacy of the impact of extraordinary circumstances on contractual substantive rights and obligations in Islamic law through basic legal sources and rules, and to clarify the role of the stated principle or theory in resolving unfair and harmful consequences that may affect the contractor. Likewise, the study intends to highlight the importance and role of the mentioned theory in the reinterpretation of contractual obligations with the aim of realizing justice between the contracting parties and its importance and reflection on the socio-economic aspect. The recognition of the of the aforementioned principle by Islamic law plays a major role in establishing justice between contracting parties in many property transactions, especially in times of economic market disruption and inflation, and at the same time it would have a positive and stimulating effect on the economic activity of society itself, because in this way it would guarantees and security to potential and real investors in such a way that its application and legalization would protect their investments and assets. As far as I know, this topic has not been covered in our area of speech.
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A bank guarantee is an instrument of protection against the risk of non-performance or irregular performance of obligations arising from a specific contract. This paper defines the concept of bank guarantee, indicates its subjects and types, and then presents the legal nature of bank guarantee in Islamic law. Modern scholars have linked the bank guarantee with classical contracts, such as suretyship, agency and mortgage, and on this basis have taken a position on the legal status of the bank guarantee in Islamic law. The paper critically analyzes and compares their arguments and draws conclusions.
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