Author(s): Ahmet Çetinkaya / Language(s): Turkish
Issue: 3/2021
Majalla al-Aḥkam al-‘Adliyyah, which is the first example of codification based on Islamic law, has been the subject of criticism from different angles in terms of its preparation and content. The main reasons for criticism are following the casuistic method, being limited to the Hanafi sect, and therefore, the regulations on some issues not meeting the needs of the period, and the lack and excesses that do not comply with the content of the civil law. The commentator of the Majalla, ‘Ali Ḥaydar Efendi, also criticized Majalla from different angles. In this study, it was aimed to identify, describe, and classify Ali Ḥaydar Efendi's critics of the Majalla, and -with some exceptions- no evaluation was made about the criticism of the commentator. Ali Ḥaydar Efendi, the author of the most comprehensive and famous commentary of the Majalla, Dureru'l-hukkâm, criticized the Majalla both in terms of law technique and content, justified his criticisms, and offered alternative suggestions regarding the issues he criticized. Although Ali Ḥaydar Efendi criticized an item for only one reason, he criticized some items from more than one point of view. In the article, each of the criticisms of Ali Ḥaydar Efendi on the Majalla’s items is discussed under a separate heading, and the items criticized from more than one point of view are discussed under a separate heading and exemplified as much as possible. His criticisms of the Majalla in terms of law technique are as follows: The statements of the items are prone to making wrong judgments, not of a general nature, the concepts are not used appropriately, both the concepts and the items are not compatible with each other and with the fiqh books, having some missing, unnecessary or incorrect statements in the items, and the lack of records in the statements. Among the criticisms made in terms of content, first of all, the fact that the provision contained in the article is contrary to the ruling in the fiqh books or the view of the sect should be mentioned. Some of the criticisms in terms of content are related to the preferences made while preparing the Majalla. In this context, it has been the subject of criticism that some of the preferred views are not suitable for the needs of the period or the preferred view in the madhhab, conflicting between preferences from time to time, and not making a choice in some controversial issues. The existence of provisions that do not comply with the requirements of the time, and the asl-far' incompatibility is another reason for criticism. In such criticisms, the suitability of the content of the law with the madhhab books in various aspects has been tried to be revealed, and inappropriate aspects have been criticized. However, ‘Ali Ḥaydar Efendi also pointed out that the text of the law should be prepared by making use of the provisions of different madhhabs, since it does not meet the needs of the time, although it is in accordance with the provisions of the madhhab. ‘Ali Ḥaydar Efendi also criticized the Majalla in terms of missing some issues or not being regulated sufficiently, and included provisions regarding the qarḍ contract and crimes against animals, which were not dealt with even though they should have been included in the Majalla. However, he never touched upon the subjects of consumption and ribā, which were not dealt with in the Majalla, although they should have been. ‘Ali Ḥaydar Efendi said that there is a deficiency in the items dealing with subjects such as luqata and hacr, since some conditions regarding these issues are not included. ‘Ali Ḥaydar Efendi also criticizes the Majalla in terms of the contradiction between the provisions contained in the items; the lack of unity in language, style and terminology among the items; and unnecessary repetitions both between the items and within the items. ‘Ali Ḥaydar Efendi, who did not make any criticism about the repetitions due to the fact that the Majalla was prepared with the casuistic method, justified or criticized the other repetitions and offered suggestions to avoid such repetitions. Also, according to him, there are deliberate repetitions in the Majalla. In addition, he also criticized the Majalla from a systematic point of view, such as the incompatibility of the title and content, the arrangement of similar subjects in different chapters/items/paragraphs, or the handling of different subjects in the same chapter/item/paragraph. Another criticism of ‘Ali Ḥaydar Efendi about the Majalla is about definitions. He criticizes the definitions made as not being collectively exhaustive, mutually exclusive and not being in the definition technique such as the tautology, but also on the grounds that it is not comprehensive, contrary to the method followed in other definitions made in the Majalla, and not being included in the fiqh books.
More...
