The intra-school controversies in Hanafī school are remarkable. These controversies pose a risk for legal safety and stability and creates difficulties for muqallīd Hanafī judges and muftīs. In the historical process, different types of literature such as mukhtaṣar and fatwa (legal opinion) books, and applications such as aṣṣaḥ-ı aqvāl and maʻrūdhāt, emerged to solve this problem. One of the last example of these applications is the codification movement. The subject of this study is the relationship between the Majalla al-Aḥkām al-ʿAdliyyah, (...) which is the first product of codification based on fiqh (Islamic jurisprudence), and the intra-school preference. In order to describe this relationship, it is briefly emphasized that one of the aims of codification of Majalla is to satisfy the need for intra-school preference. The function and content of Majallaʼs necessary reasons, (asbāb al-mūjiba) was analyzed in terms of intra-school preference. The interventions on the preferences of the Majalla Commission are also emphasized. The Majalla is a text of the intra-school preference. The analysis of its content in relation to intra-school preference is very important. Therefore, in order to reveal what kind of method is used in intra-school preferences and to determine different aspects of intra-school preference in the Majalla, the chapter about ‘sale’ (Kitāb al-Buyūʿ) of the Majalla are examined.Summary: The intra-school controversies in Hanafī School, which is quite important in terms of freedom of ijtihād (independent legal judgment) and legal wealth, possible to threaten legal safety and stability. These controversies also make difficult for judges to reach a judgment or fatwa in controversial affairs. For this reason, determination of the rājiḥ (preferred opinion) in controversial issues in the school, is a need that must be eliminated.The intra-school preference can be described as "to determine the superior, preponderant of different opinion or narrations about a specific issue in the school". In the historical process different types of literature such as mukhtaṣar and fatwa books, and different applications such as asaḥḥ-ı aqvāl and maʻrūzāt, emerged to meet this need. One of the applications aimed to meet this need is the codifications in the last period of the Ottoman State.The relationship between the Majalla al-Ahkam al-Adliyyah, which is the first example of codification based on fiqh (Islamic jurisprudence), and the intra-school preference; and in this context, while preparing the Majalla how a method was followed in the intra-school preference; at what rate be obeyed the rājiḥ (preferred) opinion; articles contrary to the rājiḥ (preferred) opinion in Majalla and their reasons; whether legal arrangements have been made in all controversial issues; at what rate be met the need of determination of rājiḥ (preferred) opinion are the issues that need to be examined.One of the main reasons for the need for a law text such as Majalla al-Ahkam al-Adliyyah is the multitude of the intra-school controversies in Hanafī School. Therefore, the goal of Majalla is to prepare a code that contains rājiḥ opinion.When Majallaʼs necessary reasons, i.e. asbāb al-mūjiba, are examined in terms of the intra-school preference, it is seen that there are two basic functions of necessary reasons. The first of them is, emphasizing that the code is prepared substantially in accordance with the râjih opinion in the school. In fact, that this issue in the asbāb al-mūjiba of the first ten books of Majalla is expressly stated. The other function of the asbāb al-mūjiba is to justify that why rājiḥ opinion are not be confirmed in some article. In the necessary reasons it is stated that twelve articles are prepared in the direction of unrâcih (unpreferable) opinion. Considering that Majalla is formed of 1851 article, it will be better understood that how the rājiḥ opinions are effective in Majalla's content. Essentially, the conditions of the period also make it necessary. The preference of the non-preferred opinion of Züfer (d. 158/775) in 692nd article of Kitāb al-Ḥavala, caused the reaction of some circles mainly Şeyhülislam Hasan Fehmi Efendi (d.1298/1881) and for this reason Ahmet Cevdet Pasa (d.1895) was dismissed from the ministry of Divan al-Ahkâm al-Adliyyah and the chairman of the Majalla Commission.When the asbāb al-mūjibas of contrary articles to rājiḥ opinions are examined, it is seen that maṣlaḥa and customs are determinative in these preferences. It is also seen that the preferences of some jurists are also mentioned as a reason of preference. The most widespread preference’s reason in Hanafī sources is in congruity with the texts. On the contrary, it is noteworthy that, besides the interdiction of extravagant (safih), it is not operated as a preference’s reason in Majalla.Some preferences of the Majalla Commission were intervened by other institutions. The chapters prepared by the commission were examined both by Majlis-i Wukalā and Mashihat, and these chapters were subject to some revisions at this time. Here, two articles prepared on the basis of the non-preferred opinion were intervened by Majlis-i Wukalā. The first of these is 216th article that written in the direction of opinion of Mashāyikh Balkh, which argues that it is permissible to sell separately ḥaqq al-murūr (the right of passage) and ḥaqq al-shirb (water right), the second is the 611th article which regulates the liability to damage of ajīr al-mushtarak (joint salaried employee).When the content of Kitāb al-Buyū, the first and the most voluminous book of Majalla, is examined in terms of the intra-school preference, it is seen that the rājiḥ opinions in the school are generally taken as basis. It is stated that in the asbāb al-mūjiba of the Kitāb al-Buyūʿ the four issues are prepared basing on the non-preferred opinion and these preferences are justified with custom and maṣlaḥa. However, the contrary articles to the rājiḥ opinion in the Kitāb al-Buyūʿ are not limited to these. According to our research, in addition to these, three articles were prepared with the preference of non-preferred opinion. These are the 118th article regarding that the bayʻ bi-l-wafā is permissible in chattels, 165th article on the definition of al-ghabn al-faḥiş (lesion), and the 309th article concerning the provision of the khiyār al-sharṭ (right of cancellation). These three articles show that the regulations contrary to the rājiḥ opinion in Majalla are not just those explained in the asbāb al-mūjiba and this situation is contrary to the method that is followed when preparing the Majalla.In some controversial issues in the Hanafi School, authorized jurists to preference (asḥāb al-tarjīh) disagreed over which opinion is rājiḥ. It wasn’t explained that how a method would be followed in Majalla when the legal arrangements were made in these matters. When these issues are examined, it can be said that the preferences of the majority, the providing of convenience and the preference by some jurists are effective.Preferences in Majalla have not been occurred only among the sharʻī (related to Islamic Law) provisions. In addition, the definitions and the inscription in the definitions are also the subject of preference. In this context, the preferences related to the definition of the sales contract, the suspended contract (al-ʻaqd al-maqqūf) and the al-ghabn al-faḥiş in Kitāb al-Buyūʿ can be mentioned as an example.Some controversial issues in the Hanafi School are not regulated in Majalla. When considering the multiplicity of controversial issues and therefore the difficulty of making legal arrangements to cover all of them, this situation is natural. Moreover, some of these issues may not have been regulated in Majalla because they are not frequent and necessary. However, it is not possible to explain all the controversial issues that have not been regulated for these reasons. Because some of the controversial issues that have not been legislated are basic, relatively important issues and they are included in the mukhtaṣars. This indicates that when preparing the Majalla, instead of making preference on some controversial issues, the method of non-regulation of these matters is adopted. It can be said that this method is applied as a way of creating law text which is clear of controversy. Thus, the determining of the rājiḥ opinion in these matters has been left to the judges. This situation is not suitable to meet the need of determining the rājiḥ opinion, which is the goal of Majalla. But it is the result of the difficulty of making a law that encompasses all legal issues. (shrink)

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. (shrink)