İnsanların günlük hayatlarında en çok kullandıkları muamelelerden biri olan alış veriş, toplumların örflerine göre çeşitlilik göstermiştir. Bu sebeple klasik füru fıkıh eserlerinde akitlerin çok bilinenlerine yer verilmiş, diğerleri için de genel şartları sağlaması kaydıyla caiz olabileceği kanaatine varılmıştır. Bununla beraber mezheplerin nasları anlama yöntemleri ve örfi uygulamaları değerlendirme biçimleri, akitlerin sıhhatini değerlendirmelerinde de ektili olmuştur. Mahiyeti itibariyle değişik formları bulunmasıyla birlikte kısaca, ürünün peyderpey alınıp ücretin ürünün tüketilmesinden sonra ödenmesinin taahhüt edilmesi şeklinde tarif edilen isticrâr akdi, İslam hukuk ekolleri (...) tarafından tartışılmıştır. Bu tartışmalar genellikle akdin sıhhat ve kuruluş unsurlarını taşıyıp taşımaması etrafında gerçekleşirken Hanefi fukahası, isticrâr yoluyla yapılan alışveriş işlemlerinin insanlar tarafından sıkça yapıldığını göz önünde bulundurarak bu akdin istihsan yoluyla caiz görülmesi gerektiği kanaatine varmışlardır. Diğer mezheplerde de bu akde benzer gerekçelerle olumlu yaklaşımların bulunduğunu görmekteyiz. Bu çalışmamızda günümüz kırsal kesimde uygulanan ve özellikle finans dünyasında uygulanmaya başlanan ve aynı isimle literatüre girer isticrâr akdini, mezheplerin görüşleri bağlamında değerlendirmeye çalışacağız. (shrink)

İslam hukuk doktrininde bir fiilin veya sözün hükmünü belirleme noktasında kasıt esas alınır. Kasıt; hukuki işlemlerden elde edilmek istenen neticedir. Bununla birlikte mükellefin söz veya fiillerinin kasıt sonucu meydana gelmesi halinde söz ve fiillerine hüküm bağlanır. Bu takdirde bir akdin esasını onunla elde edilmek istenen hukuki neticeye yöneltilmiş olan tarafların kastı teşkil eder. İslam dini mükelleflerden bir davranışı ortaya koyduğu zaman bunun bilinçli olarak yapılmasını ve o işe kalben yönelmesini istemiştir. Dini emir ve yasakların tamamı bir maksadı gerçekleştirmek (...) için vazedilmiştir. Şari’in emir ve yasaklardaki maksadı da ya kulların maslahatını temin etmek yada onlardan bir mefsedeti gidermektir. Mükelleften istenen de bu maksat doğrultusunda hareket etmesi ve Şari’in maksadından başka bir şeyi kastetmemesidir. Hukuki tasarrufların geçerli olması noktasında bütün mezheplerin kasta önem verdikleri görülmektedir. (shrink)

Ribā/interest is one of the prominent regulations in Islam regarding commercial life. The commercial lives of Muslims and laws related to commerce were regulated in accordance with the prohibition of ribā, and by this a society that avoided ribā with sensitivity was created in practice. This sensitivity about ribā manifested in the principle that the suspicion of ribā is evaluated as ribā, and it is ruled as haram like riba. In fiqh sources, besides issues regarding ribā, issues involving suspicion of (...) ribā were also mentioned, and some rulings were justified with the presence of suspicion of riba. However, the logic of using the concept of ribā suspicion in fiqh sources may vary from case to case: the reasoning behind the use of riba suspicion in one case may not fit into another case, and thus a completely different reasoning of ribā suspicion may appear in another case. To clarify the framework of the concept of ribā suspicion, it would be noteworthy to study these each of the uses in the classical fiqh sources. The purpose of this article is to examine the use of the concept of ribā suspicion based on the cases in the Ḥanafī sources. Methodologically, first, the cases in which the concept of ribā suspicion is used are determined. Secondly, the reasoning made for each example is examined by considering the contextual framework of the case. Lastly, these uses are classified and presented to the reader with examples. The principle of evaluating “the suspicion of ribā like ribā” in Islamic law is indeed related to the rule of considering “any suspicion as certainty when it comes to harams or in matters where precaution is substantial”. Since ribā is a haram that Muslims should meticulously avoid, and therefore requires caution, its suspicion is subject to the same rulings as ribā itself. In the Hanafi fiqh books, the concept of suspicion of ribā is mostly referred in the following cases: - Not knowing whether there is equality between the subject matters in barter transactions where equality is stipulated. For example, when exchanging two batches of the same kind of ribawi goods, though quantities are unknown. - It is not known whether tariq al-itibār has taken place in changes that may be permissible through tariq al-itibār. For example, in the exchange of a silver-embroidered sword with silver, if the amount of silver in the ornamented part is not known, the suspicion of ribā arises. - The emergence of a situation similar to ribā because of a transaction that is normally permissible: While there are two legitimate sales in Bay' al-inah, the conclusion of being the same as an interest bearing loan is considered as ribā suspicion. - When the case has two different sides; from one side the act is ribā, but from other side it is not. For example, in the case of salam contract of ribawi goods, if goods of different quality are brought during delivery and the quality difference is requested from the customer; suspicion of ribā arises. Apart from these uses in the Hanafi fiqh books, it is seen that the concept of ribā suspicion is employed to prove an opinion disputed between schools of Islamic law. For example, to argue that ribā rules are also valid for goods sold by piece (adadiyyāt) or by length measures (zirāiyyāt), the Hanafis say that one of the two causes (illah) of ribā is found in the exchange of these goods by type, and the suspicion of ribā arises with just a single cause (illah). On the other hand, the Shafiis use the concept of suspicion of ribā to argue that determining the subjects (ta’yin) in the exchange of ribavi goods other than gold and silver is not sufficient. Another use of the term emerges because of the authors' preference for a cautious language. Some authors acted cautiously on some cases that were normally ribā and were described by other authors in this manner, and used the term "ribā suspicion" instead of ribā; probably as they both require the same ruling (harām). Another wrongly used (in our opinion) is the use of “suspicion of ribā” in some cases that are actually considered only as disliked acts (makruh). (shrink)

The subject of this study is the review of the book titled Akitlerde Şart Hürriyeti (Freedom of Provisions in Contracts) written by Mahmut Samar. For this purpose, the book, in this review, is being subjected to a multifaceted analysis taking into account several aspects such as the contents, subject order, the language, the style, the way the subject topics are discussed, the criticisms it received andthe sources it used. Moreover, the shortcomings and weaknesses of the book were pointed out and (...) some suggestions were made to be taken into consideration in subsequent editions. (shrink)

Yavuz [Altıntaş], Miyase. İctihadın Modern Müslüman-Çoğunluklu Ülkelerin Aile Hukuku Reformlarındaki Rolü: Fas Örneği. Doktora Tezi, SOAS Londra Üniversitesi, Hukuk ve Sosyal Bilimler Fakültesi Hukuk Anabilim Dalı, İngiltere, 2018. Bu çalışmanın temel amacı ictihadın modern dönemdeki kavramsallaştırma ve hukuki temellendirmelerini analiz ederek İslam hukukunun modern Müslüman-çoğunluklu ülkelerde uygulanmasındaki rolünü araştırmaktır. Bu araştırmada ictihadın hukuk reformlarında neden ve nasıl kullanıldığı meselesinin yanı sıra uygulama esnasında hangi motivasyonlar, teknikler, formlar ve muhakeme usullerinin benimsendiği incelenmektedir. Aynı zamanda ictihadın birincil kaynaklara, yani Kur ’an (...) ve S ünnet ’e d önülerek mi yoksa klasik İslam hukuk bilimi içerisinde var olan hukuki görüşlerden seçmek suretiyle mi yapıldığı analiz edilmektedir. Son olarak klasik İslam hukuk teorisi kuralları ve prensiplerinin ne derece itibar gördüğü ve bunların günümüzde ictihad vasıtasıyla ger çekleştirilen reformlarda ne derece takip edildiği araştırılmaktadır. Tezin ana odak noktasını modern Müslüman-çoğunluklu ülkelerde İslam hukukunun en yaygın uygulanan yönü olması sebebiyle aile hukuku teşkil etmektedir. 2004 Fas Aile Kanunu reformlarıictihada dayanılarak uygulamaya konduğundan dolayı özellikle incelenmiştir. Tezin ana argümanı ictihadkavramının klasik ana akımdaki anlayıştan tanım, kapsam ve ictihadetme yetkisi açısından farklılık gösterse de modern dönemdeki ictihadkavramsallaştırmaları ve uygulamalarının İslam hukuku içerisinde yer alması gerektiğidir. Nitekim kavramsal bir analiz yapıldığında özellikle tarihi bağlamın sosyo-politik değişikliklerinin zemin hazırladığı çeşitli ictihadanlayışlarının ve uygulamalarının İslam hukuk tarihi içerisinde var olduğu görülmektedir. Modern dönem ictihaduygulamalarına bakıldığında çoğunun genel olarak klasik İslam hukuk teorisinin detaylı kural ve prensiplerini sıkı bir şekilde takip etmediği görülmektedir. Bununla birlikte bu uygulamalar hukuki temellendirmelerden mahrum değildir ve bazıları klasik İslam hukuk bilimi içerisinde kaynağını bulabilmektedir. Dahası bu uygulamalar iptidai de olsa meşru bir teorik çerçeve sunmaktadır. (shrink)

للنقود دور هام في حياة الناس والمجتمعات البشرية ، كما أن لها دورا أساسيا ومحوريا في النظام الاقتصادي. ويتعرض الاقتصاد إلى العديد من المشكلات والنكسات التي تترك الأثر البليغ في استقراره وأحواله ، وبالتالي ينعكس ذلك على الوضع الاقتصادي المتقلب على الأوضاع المعيشية ، والتجارية لأفراد المجتمع. وتبرز مشكلة انخفاض قيمة النقود كإحدى هذه المشكلات التي تصيب الاقتصاد ، وهو ما يُطلق عليه " التضخم " حيث تنخفض قيمة النقود مقابل ارتفاع سعر السلع والمواد. يؤثر هذا الانخفاض لقيمة النقود على (...) معاملات الناس وبيعهم بالأجل ، أو الديون التي لهم في ذمم الآخرين فيأتي موعد القرض أو البيع بالأجل وقد تبدلت قيمة النقود من حيث قوتها وقيمتها الحقيقية ، فيكون المدفوع عند حلول الأجل غير مساوٍ أو مكافئ للمدفوع في أول العقد وبداية التعامل. فيقع الغُبنُ الكبير على أحد طرفي العقد دون تقصير أو سبب منه. فهل هناك اعتبار لتبدل قيمة النقود ارتفاعا أو انخفاضا في سداد الديون أو الحقوق المترتبة في الذمة أم لا ؟ تعددت أقوال العلماء في هذه المسألة : فمنهم من قالوا: بوجوب ارجاع المثل ، والبعض الآخر قالوا : برد القيمة ، ومنهم من فرّق بين الاختلاف اليسير والكبير في قيمة النقود ، ومنهم من جعل الخسارة مناصفة بين طرفي العقد. Para, insanların ve insan toplumlarının yaşamlarında önemli bir role sahiptir. Aynı zamanda ekonomik sisteminde temel ve çok önemli bir rolü de mevcuttur. Ekonomi, istikrarı ve koşulları üzerinde finansal bir etki bırakan pek çok sorun ve aksaklıkla karşı karşıyadır ve bu durum, yaşam koşullarındaki dalgalı ekonomik duruma ve toplumdaki bireylerin ticaretine yansımaktadır. Paranın değerinin düşmesi sorunu, ekonomiyi etkileyen bu sorunlardan biri olarak karşımıza çıkıyor. Paranın değerinin düşmesi sorunu, malların ve malzemelerin fiyatındaki artış karşılığında paranın değerinin düştüğü "enflasyon" olarak adlandırılan ekonomiyi etkileyen bu sorunlardan biri olarak ortaya çıkıyor. Paranın değerindeki bu düşüş, insanların işlemlerini ve krediyle satmalarını veya başkalarının borçlarında sahip oldukları borçları etkilediğinden, kredi veya satış zamanı zamanında gelir ve paranın değeri mukavemet ve gerçek değer, böylece sözleşmenin başında ve anlaşmanın başında ödenen zamandaki ödeme eşit veya eşdeğer değildir. Sözleşmenin taraflarından birine temerrüt veya sebep olmaksızın önemli adaletsizlik düşer. Borcun ödenmesinde veya borçtan doğan haklarda paranın değerinin artması veya azalması gibi bir husus var mıdır? Âlimlerin bu konuda çeşitli açıklamaları vardır. Birçok alim aynısı zorunludur derken başka alimler küçük ve büyük farklılıklar arasında farklılık gösterilir görüşü belirtmişlerdir. Ayrıca, paranın değer kaybı akdin iki tarafın arasında bölünmeli gibi görüşler mevcuttur. (shrink)

Çocuk evliliği, tarih boyunca farklı toplumlarda bilinen ve uygulanan sosyal bir olgu olsa da son zamanlarda, modern duyarlılıkları giderek daha fazla rahatsız eden bir hal almıştır. Son iki asır öncesine kadar, Avrupa hukuki düşüncesinde çocuklar yargı önünde farklı bir muamele görmelerine imkan veren istisnai bir statüye sahip değildi. Diğer taraftan, İslam hukukunun çocuklara, özel bir hukuki statü kazandırma konusunda bazı öncü adımlar attığını söyleyebiliriz. Nitekim, en eski İslam hukuku kitaplarının bile, insanın fiziksel ve zihinsel gelişim aşamalarına ve her (...) bir aşamada ortaya çıkan hukuki hükümlere dair son derece teknik ayrıntılarla dolu olduğunu görebiliriz. Ancak çocuk hakları konusundaki bu erken farkındalığa rağmen, çocuk evliliği olgusu hem İslam toplumlarında hem de İslam hukukunda kendini gösterebilmiştir. Çünkü, İslam çocuk hukuku, ilk ortaya çıktığı dönemin kültürel şartlarından ciddi şekilde etkilenmiştir. Üstelik bu kültürel şartlar, İslam dünyası boyunca İslam çocuk hukukunun temel zemini olma işlevini sürdüre gelmiştir. Bu çalışma, alimlerin çocuk evliliğini delillendirmek üzere yapageldikleri bazı aşırı yorumları ortaya koymaya ve konuyla ilgili âyetleri metinsel bağlamıyla daha uyumlu bir şekilde okumaya çalışmaktadır.Özet: Her bağlam için geçerli olabilecek, standart bir çocuk tanımı yapmak göründüğünden daha güçtür. Bu nedenle çocuk araştırmaları sahasında çalışan akademisyenlerin, muhtelif sosyal disiplinler tarafından yapılacak herhangi bir çocuk tarifi konusunda memnuniyetsizlik içinde olması doğaldır. Diğer yandan, İslam hukukunda baştan beri ayrıntılı bir çocuk hukuku teorisi mevcuttur. İslam hukuk düşüncesinde, insanlar doğum ile yetişkinlik arasındaki gelişim döneminde üç aşamadan geçerler: Çocukluk (küçüklük), buluğ ve rüşt. Bütün fıkıh mezhepleri, insanın doğumu ile ergenliği arasındaki dönemde küçük çocuk sayılacağı kanaatindedirler. Bu çocukların mallarının en iyi şekilde idare edilebilmesi için yasal temsilcileri bulunmak zorundadır. Fakîhler çocuğun velisinin, özellikle de baba veya baba tarafından dedenin, velâyeti altındaki küçük çocuklar üzerinde mücbir bir yetkisi olduğu (velâyet-i mücbire) konusunda geniş bir fikir birliğine sahiptirler. Buna göre veliler, velâyetleri altında bulunan çocukları uygun gördükleri kişilerle evlendirme yetkisine de sahiptirler. Fakat zaman zaman beşik kertmesi olarak da anılan bu uygulama bir ön sözleşmeden ibarettir. Yani bu sözleşme doğrudan doğruya fiziksel boyutları da olan müşterek bir evlilik hayatını meşru kılmamaktadır. Çünkü cinsel hayatın ancak buluğdan sonra gerçekleşmesi ön görülmektedir. Modernite öncesi İslam tarihi boyunca, İbn Şubrume (ö. 144/761), Ebû Bekr el-Esamm (ö. 200/816) ve Osman el-Bettî (ö. 143/760) gibi bir kaç fakih dışında küçük çocukların evlenmesine kategorik olarak karşı çıkan kimselere pek rast gelinmemektedir.Hanefi mezhebinde, herhangi bir zihinsel özrü olmaksızın buluğa eren erkek ve kız çocuklar evlilik konusunda mücbir velâyetin kapsamı dışına çıkarlar. Bu, evlilik sözleşmelerini bizzat gerçekleştirebilecekleri anlamına gelmektedir. Fakat veli, uygunsuz bulduğu evliliğe karşı dava açarak bunu yargı yoluyla geçersiz kılma yoluna gidebilir. Diğer üç Sunnî mezhep ise erkek ve kız çocuklar arasında bir ayrım yapar: Buluğa eren erkek kendi evlilik akdini yapabilme hakkını elde ederken aynı durumdaki kız çocuklar velâyet altında kalmaya devam ederler. Şâfiʿî mezhebine göre, velâyeti gerekli kılan illet (bekaret) hâlâ geçerliliğini korumaktadır. Dolayısıyla veli, kızları evlendirme konusundaki icbâri yetkisini elinde tutmaya devam etmektedir. Bu durumda kızın rızasının alınması, akdin geçerliliği için şart olmaktan ziyade sadece nezaket gereğidir. Rüşte ulaşmak veya fizyolojik olgunlaşma sürecini tamamlamak ise İslam hukukunda evlilik için şart görülmemiştir.Modern zamanlara kadar geleneksel İslam hukukunun erken evlilik lehinde gösterdiği bu yaklaşımda herhangi bir değişiklik olmamıştır. 1917 yılında çıkan Hukuk-ı Aile Kararnamesi daha önce benzeri görülmemiş bir dizi düzenleme getirmiştir: İlk olarak, evlilik yaşı erkek için on sekiz kız için ise on yedi olarak belirlenmiştir. On sekiz yaşın altındaki erkeklerin hakimden evlenme izni alması; on yedi yaşından küçük kızların ise hem veli onayı hem de hakim iznine sahip olması zorunlu hale getirilmiştir. On iki yaşın altındaki erkekler ile dokuz yaşından küçük kızların ise asla evlendirilemeyeceği kararlaştırılmıştır.Mantıkî bağlam ve sentaktik yapı elverişli olmamasına rağmen fakihler çocuk evliliğini desteklemek üzere bazı Kur’ân âyetlerine (Nisâ 4/3-6, Nisâ 4/127, Talâk 65/4) referansta bulunmuşlardır. Makale içeriğinde detaylı şekilde açıklandığı üzere zorlama yorumlamalarda bulunmuşlardır. Bu makale, söz konusu âyetlere daha tutarlı bir yorum getirmeye çalışmaktadır. Aynı şekilde, Kur’an’ın çocuk evliliğini kolaylaştırıcı bir tavır içerisinde olmadığını, çocukların evlendirilebilmesi yönündeki yaklaşımların tarihsel ve kültürel şartlara bağlı olarak yapılan bazı zorlama yorumlara dayandığını ileri sürmektedir.Hz. ʿÂişe’nin Hz. Peygamber ile oldukça erken bir yaşta evlendiğine dair nakledilen rivâyet de konuyla ilgili olarak ileri sürülen başka bir argümandır. Bu rivâyetin sahih olduğuna inanılmaktadır. Buna rağmen ilginç bir şekilde bu rivâyet çok az fakih tarafından kullanılmıştır. Bunun sebebi, fakîhlerin Hz. Peygamberin mahremiyetinden bahsetmek istememeleri olabilir. Rivâyetin hücciyeti konusuna kuşkuya kapılmış olmaları da mümkündür. Söz konusu rivâyete daha yakından bakıldığında, ifadedeki menfi üslup hemen dikkat çekmektedir. Çünkü rivâyette Hz. ʿÂişe, Hz. Peygamberle evlendiği günü anlatırken sürekli olarak fizyolojik ve psikolojik açıdan olumsuz koşullardan bahsetmektedir. Nitekim Hz. ʿÂişe birden bire oynamakta olduğu salıncaktan alınmakta ve kendisinin de bilmediği bir yere doğru götürülmektedir. Rivâyet, sadece çocuk evliliğinin cevazını ortaya koymakla yetinmemekte, sanki aynı zamanda çocukların uygunsuz koşullardaki evlilik taleplerine bile itaatkar olmaları gerektiğini salık vermektedir. İçerik yanında teknik olarak bakıldığında bu rivâyet, haber-i vâhiddir. Çünkü rivâyet, sadece Hz. ʿÂişe tarafından bilinebilecek detayları içermektedir. Tarihî açıdan bir öneme sahip olmasına rağmen dinî hükümlere kanıt olma niteliğinden yoksundur. Çünkü bu rivâyette, râvi konuyla ilgili Hz. Peygamber’e ait resmi bir açıklamayı nakletmemekte; sadece kendi zaviyesinden maruz kaldığı bir durumdan bahsetmektedir. (shrink)

In society, people need some properties themselves (the same) or for their own benefits. According to Islamic law, while people acquire the same properties they need through a bay' (sale) contract, they gain access to the benefits of the properties as a means of contracts such as idjâra (rent) or âriyya (lending). Muslims must conclude all kinds of contracts in accordance with the principles and conditions determined within the framework of the Quran and Sunnah. Otherwise, the contracts will be invalid (...) or void. In terms of Islamic law, in a sales contract, the location which subjects to the contract must be existing, and possible to deliver. Since the sale of something that does not exist is prohibited, such a sales contract is void. However, some types of contracts, including the idjâra contract, are exempt from this rule based on some special evidence. Because the idjâra contract, which has been implemented since the time of legislation, is a mandatory need in human life, and also occupies an important place. For this reason, according to some jurists, the idjâra contract was not considered within the scope of the sale of the non-existent through istihsân, contrary to the general rule, and was accepted as legitimate on the grounds of istihsân. The fact that the İdjâra contract is established in a way that is contrary to analogy does not make it possible to compare other contracts with this contract. Since the contract of idjâra is one of the most frequently referred contracts after the contract of sale, it has been discussed in all its aspects by Islamic jurists and examined under separate headings. In this context, the impact of natural disasters on the idjâra contract has not been disregarded. In principle, a rent contract duly established with its provisions and conditions, as well as a sales contract, is binding on both parties. However, in unforeseen circumstances, especially during unexpected disasters, legal problems such as continuation of the rent contract, benefiting from the benefit of the rented property and refund of the paid fee arise. In our study, first of all, after briefly presenting what natural disasters mean in Islamic law literature, the nature of the idjâra contract will be focused on, and then only the consequences of natural disasters on the rent contract will be detailed. As a result, in such disasters cause partial or total loss to the rented property, the possibility of continuation of the contract and the responsibilities of the parties will be revealed. (shrink)

Fas Ahvâl-i Şahsiyye Kanunu üzerinde 2004 yılında yapılan reformlarla birlikte Fas Aile Kanunu (Müdevveneh), İslam dünyasındaki en eşitlikçi kanunlardan biri olarak kabul edilmektedir. Söz konusu reformlar, Fas'ta onlarca yıldır devam eden uzun soluklu kamuoyu tartışmalarının bir ürünü olarak ortaya çıkmıştır. Ahmed el-Hamlîşî 1980'lerin başından itibaren bu tartışmalara aktif olarak katılmış ve Ahvâl-i Şahsiyye Kanunu'nun yoruma açık insan yapımı bir kanun olduğunu ve revizyonunun ictihad yoluyla yapılması gerektiğini savunmuştur. Kral 6. Muhammed tahta çıktıktan kısa bir süre sonra, 2001 yılında, Fas (...) Ahvâl-i Şahsiyye Kanunu'nda reform yapmak üzere Kraliyet Danışma Komisyonu'nu oluşturdu. Kral 6. Muhammed komisyonu, Şeriat'ın temel hedeflerini (makâsıdü'ş-Şeria) gözeterek ve aynı zamanda ictihad yoluyla zamanın ve toplumun ihtiyaçlarına cevap vererek Ahvâl-i Şahsiyye Kanunu’nda önemli değişiklikler yapmakla görevlendirdi. Bununla birlikte, komisyon üyelerini kamu yararını göz önünde bulundurmaya ve önerilen her türlü değişiklikte uzlaşma ve ılımlılık için çaba göstermeye teşvik etti. Komisyon üyeleri önerilen değişiklikler üzerinde yaklaşık iki buçuk yıl çalıştı ancak birçok konuda uzlaşmaya varamadı. Bu bağlamda, üyelerin komisyon içinde oluşan iki ana gruptan reformist ve gelenekçilerden birine, az ya da çok, meylettiği söylenebilir. Ahmed el-Hamlîşî, Kraliyet Danışma Komisyonu'nun üyelerinden biriydi. Komisyon üyeleri arasında reformist grubun değişiklik tekliflerini destekleyen ama aynı zamanda bunu gelenekçilerin benimsediği dili kullanarak yapan etkili ve önemli bir isim oldu. Nitekim, el-Hamlîşî İslam hukuku çerçevesi içinde kalan eleştirel ama ılımlı görüşleriyle aile hukukunun reformunu talep eden gruplar için bir referans noktası haline geldi. Bu çalışmada, Ahmed el-Hamlîşî’nin fıkhi temellendirme ve delillendirme açısından Fas 2004 aile hukuku reformlarının arkasındaki isim olduğu savunulmaktadır. Veri analizi yönteminin uygulandığı bu çalışmada, öncelikli olarak Hamlîşî'nin eserleri, çeşitli mecralardaki mülakatları ve konuşmaları kullanılmıştır. Hamlîşî’nin anlayışındaki farklılık ve benzerlikleri ortaya çıkarmak için literatüre başvurulmuş ve benzer görüşlerle karşılaştırmalar yapılmıştır. Fas Ahvâl-i Şahsiyye Kanunu’nun reformuna dair kısa bir arka plan açıklamasının ardından bu makale, Hamlîşî'nin metin ve bağlam arasındaki arabulucu rolünü, aile hukuku reformları tartışmasındaki yerini ve dolayısıyla Şeriat-devlet ilişkileri konusundaki duruşunu incelemektedir. Daha sonra, ictihad kapısının kapanması meselesi, müctehid olabilmenin şartları, müctehidin nitelikleri ve Kraliyet Danışma Komisyonu tarafından uygulandığı şekliyle kolektif ictihad türü (cemâʿî ictihad) hakkındaki görüşlerine atıfla Hamlîşî’nin ictihad anlayışına odaklanılmaktadır. Son olarak, Hamlîşî'nin akıl yürütme yöntemi ve ortaya koyduğu gerekçeler aile hukuku ile ilgili meseleler örnekliğinde gösterilmektedir. (shrink)

The jurists, taking as reference the texts and the experiential studies of the period, preached various provisions regarding the issues such as fetal development, full birth or birth and death in this process. The majority made evaluations on the basis of the hadith about the fetal development process -mentioned in three separate periods of forty days-, but it was observed that this did not overlap with some medical guidance. Because the development period expressed by the jurists could not be prolonged, (...) it was determined that this process was completed before according to modern medicine. Jurists stated that he did not have any law regarding the fetus born before this period, since it was based on this period, and evaluated and evaluated whether those born later were alive or not. It has been presented in different jurisprudence in terms of various branches in fiqh, which is called “frequency” of the previous abortion effect after/during the full birth, and which is considered to be soul-blowing at the end of four months. These conflicts affected sons' abilities such as bathing, shrouding, burial and burial of the miscarriage. The mother also created many provisions such as her legal status such as nifas, talaq and ummu'l-veled, punishment lessons such as abortion and gurra, financial concepts such as heir and inheritance, and its effects on conditional contracts. In our study, in the event that the fetus dies due to the cell in the womb where the study medical information is located, the protections against it and the judgment it gives birth to in relation to it are discussed. (shrink)

The rights granted to individuals by the legal system are examined with a fundamental distinction as regards their economic value as "property rights" and "personal rights". Property rights, which differ from personal rights in terms of their economic value, are characterized as ‘absolute’ if they can be asserted against everyone and as ‘relative’ if they can only be claimed against the convict on behalf of the debtor. If absolute property rights are based on a tangible (physical) subject, they are referred (...) to as real rights. Real rights and rights of claim that have relative characteristics and can therefore only be used through the act of a specific person constitute two important components of a property. Although various attempts have been made to bring these two types of rights closer together in the historical process, these rights have continued to be considered different in terms of both nature and legal implications. The aforementioned difference arises from the form of dominance over the subject of the right, whether it is direct or indirect, the impact of these rights on the ownership of the property, whether the right is absolute or relative, whether it is continuous or not, and priority/superiority, which will be discussed in detail in the article. The conceptual framework and terms belonging to the Continental European legal system are also found in Islamic legal doctrine in similar or equivalent forms. In this context, the term "milk" has been used in the fiqh literature to encompass all property rights, and terms such as "milk al-ayn," "milk al-manfaa," "milk al-dayn," and "milk al-habs wal-yad" have been developed depending on the nature of the property subject to the right. Real rights and personal rights constitute two important parts of the asset. In some cases where legal interests between people are confronted, it may be necessary to choose between these two types of rights. In such cases, considering the authorities it contains, a kind of priority has been given to real rights over personal rights. One of the cases where this priority is most clearly seen is when a leased property is transferred to third parties while the current lease agreement is in effect. In Islamic law, the authorities granted to the person by the lease contract differ from the Continental European legal system. At this point, the powers granted by the lease contract in Islamic law differ from those in the Continental European legal system. This article argues that the right of the tenant in this regard is considered as real right in Islamic law, unlike in the Continental European legal system. To justify this, the authorities granted to the tenant in Islamic law have been examined in cases where the leased property is transferred to third parties through means that can be interpreted as unlawful acts such as sale, lease, or usurpation during the lease period. In addition, the unique approach of Islamic law on this issue has been expressed by considering both classical and modern fiqh works, and by making comparisons with Turkish law. (shrink)

The foundation (waqf), which is a charity institution that was able to find an application area since the emergence of Islam, has developed over time in Islamic societies and has become a common institution. In the Ottoman Empire, these institutions had incorporated different services into its structure. This expansion has also led to the establishment of many different types and purposes of foundations such as charities; family, animal care, hospice, foodbank and educational institutions and mosques. Types of foundations in which (...) the incomes of the foundation were shared in different ways were also developed in this period. Family foundations are one of the types of foundations established for the purpose to share of income. Family foundations, which are characterized by many different names such as “zürri” (familial), “ehli” (domestic) and “evlatlık” (filial), have been criticized legally for various reasons in the last period of the Ottoman Empire and the Republic period, and their legitimacy has been questioned. This questioning of legitimacy, which started especially with orientalist studies, was also written among Turkish historians and lawyers, and attempts were made to base the claims that family foundations are illegitimate. In time, these criticisms came out of the family foundations and became legally questioning the entire Islamic foundation system. Investigating the justification of these criticisms, which have been popular since the end of the 19th century, is of particular importance for the development of today's foundation system. Because as a result of these criticisms, the foundations, which are one of the most effective institutions that provide social cohesion and that Islam has created and developed, have lost their importance over time and there has been a noticeable decrease in established foundations. Previously established foundations were somehow transferred to individual ownership on legal grounds. Based on these reasons, the study aims to determine the truth of these claims and to offer a critical approach to the debates on the legitimacy of family foundations in Islamic law, thus revealing the legal basis of the foundation system in Islam. In terms of nature, family foundations are a type of foundation for the purpose of the foundation. Although its name is described as family, it indicates a foundation that is broader than the concept of family. In this sense, it refers to foundations established first for private individuals and then for one of the general charity classes. Specially designated persons do not have to be among family members. It is referred to by this name as these foundations are mostly established for family members. When the evidence regarding the legitimacy of these foundations is examined, examples from the practices of the Prophet himself can be seen, as well as general verses from the Qur'an that will be included in the scope of these foundations. On the other hand, there are examples of family waqfs in foundations established by almost all of the Companions. The legitimacy of family foundations is challenged within the framework of four main reasons such as violation of the provisions of legacy, avoiding to be confiscated, preventing the fragmentation of property by the heirs and causing the feudal system and it is claimed to be illegitimate. However, the fact that these foundations have existed in Islamic societies since the golden age, including the Ottoman Empire raises a question about the authenticity of the criticisms. When examining the details of the criticisms, it can be easily seen that there is no question of legitimacy in the real sense, only a misinterpretation arising from misunderstanding. As a result, it will be seen that it is not possible to say that the practices of Muslims throughout history are illegitimate. Family waqfs have taken place in history as an institution that does not contradict the general provisions of Islam, on the contrary, by increasing Islamic foundation culture and social solidarity. It is extremely important for these foundations to find a field of application in social and economic terms now. (shrink)

Sunnah is the second main source for Islamic law following the Qur’ān. Sunnah in the books on the Methodology of Islamic Law (Usūl al-fiqh) is examined in two main parts, one of which is as the source for religious commands and the other is being as religious/taklīfī commands. Sunnah is divided into three categories in terms of being the source for Islamic commands: qawlī (verbal), fi‘ilī (behavioral) and taqrīrī (approval). In the Islamic literature, when the word “sunnah” is mentioned, first (...) of all, it is understood as a verbal appeal, which is qawlī sunnah (hadith). Verbal sunnah has a rhetoric/wording that includes demand (amr/order-nahy/prohibition) or freedom (mubāḥ). And ultimately to the wording of this verbal address, some religious commands, such as farḍ/wājib, sunnah/mandūb, and permissible/mubāḥ are attributed. The behavioral sunnah (the acts of the Prophet Muḥammad), on the other hand, does not have a rhetoric that includes demand (amr/order-nahy/prohibition) or freedom (mubāḥ). The command/judgment is based on rhetoric. In other words, if there is an address, there is a command; if there is no address, there is no command/judgment. Therefore, it is problematic that the acts of the Prophet are decreed in the form of farḍ/ wājib, sun-nah/mandūb and mubāḥ. For this reason, the acts of the Prophet in the books on the Method-ology of Islamic Law (Usūl al-fiqh) have been particularly examined under the title of Afʿāl al-Rasūl. While some of the acts of the Prophet Muḥammad have a religious character, some of them are the acts that he performed completely in accordance with the customs and traditions in the society he lived in. Therefore, not all of the Prophet’s deeds/acts (behavioral sunnah) are at the same level in terms of obligation. Therefore, while some of the acts/deeds of the Prophet express wucūb, some other mandūb (sunnah-mustaḥab) and still some other ibāhā/mubāḥ. On the other hand, the acts of the Prophet Muḥammad, in terms of being the source of religious commands, are divided into two categories: the tashrīī (religiously) qualified and non tashrīī (religiously) qualified. What is meant by a religious act is the actions of the Prophet, which he performed as being a prophet, for the purpose of worshiping and that he wanted his followers act accordingly. What is meant by a non-religious act is the behavior of the Prophet as a human being or as a requirement of the society he lived in. Sunnah, in terms of being a religious com-mand, refers to commands other than fard and wājib. Ḥanafī scholars are of the opinion that sunnah as a religious decree is divided into two parts as sunnah-i hudā and sunnah-i zawāid. The acts of the Prophet, in accordance with his being a human or the custom of the society he lived in, are included in the scope of sunnah zawāid. In other words, sunnah zawāid generally means the actions of the Prophet that he did not do with the intention of worship. In this con-text, the acts of the Prophet Muḥammad are important. Because, the acts of the Prophet are not the same in terms of qualification (command), nor are they the same in terms of their nature (being religious or humanly natural). The acts of the Prophet Muḥammad with a religious nature are divided into two as known qualities and unknown qualifications. In principle, the religious acts of the Prophet, whose qualities are known, are also obligation for the ummah (Muslims). Therefore, when it is known for what purpose the Prophet Muḥammad made a deed/behavior, that act is accordingly is binding for the ummah (Muslims). Accordingly, if the attribute of a deed/behavior made by the Prophet is wājib/farḍ, it is also wājib for the ummah and permissible (ibāḥā) for the ummah if it is permissible. On the other hand, the acts of the Prophet in the Qur’ān as a mujmal (ambiguous nass /verse) are also subject to the command of mujmal. There is a dispute regarding the verdict of the Prophet’s acts of religious nature whose qualifications are unknown. According to the majority of Hanafī scholars, what is essential in the actions of the Prophet whose qualifications are unknown and that contain the characteris-tics of worship, is that it is mustahab/mandūb. According to Kerkhī (d. 340/952), what is es-sential in such deeds/behaviors is that it is permissible. Jassās (d.370 / 980) expresses the same opinion with Kerkhī. Opinions on this issue are conveyed from Imām Mālik and Imām Shafiī that he declared permissibility. The preferred opinion in Hanbalis is to declare permissibility. Non-religious acts of the Prophet Muḥammad as a human being or as per the custom of the society he lives in are not obligation for the ummah. Therefore, what is essential in such deeds/behaviors is that it is permissible. (shrink)

The Build-Operate-Transfer (BOT) model is a financing model used especially in the financing of infrastructure projects in developing countries. It is one of the most common methods used by the countries to provide non-budgetary financing. The fact that becoming popular in the world as of the 20th Century, this model started to be implemented in the Islamic countries created the need for examining the model in terms of Islamic law. No substantive studies have been conducted on this matter in Turkey. (...) In the Arab world, the first significant development in this regard was the 23rd Term meeting of Al Baraka Group organized in Mecca in November 2002. Next, the Islamic Fiqh Community, which operates under the Organization of Islamic Cooperation, organized a meeting about the BOT model in 2009. At this meeting, ten experts from different countries presented papers on the BOT model, and a final declaration was announced at the end of the meeting. After this meeting, some independent studies were carried out on the BOT model. However, it was observed that these efforts did not reach a sufficient level, and generally remained within the framework of the papers presented at the meeting. The BOT model is a model that takes place in the form of the transfer of the facility to the relevant public institution or organization free of charge at the end of the period after the depreciation and profit of the invested capital are realized. All expenses are covered by the private enterprise. The public service or activity is operated for a certain period of time by the private enterprise. It was observed that the studies on the BOT model in Turkey mainly dated back to the last quarter of the Twentieth Century. In this context, the Law No. 3996 about the BOT model was enacted on 08 June 1994 in Turkey. Today, the BOT model is actively used in many areas, and the delivery of the service begins after the projects are completed. The BOT model has three main successive stages. In the first stage, the project is completed with the financing of OGS. In the second stage, the operating right of this project would be awarded to the investor in accordance with the contract. In the third stage, the ownership of the facility would be transferred to the relevant public institution. The BOT model was discussed in terms of Islamic law, firstly in general and then in terms of the interests and convictions. The BOT model contains many interests in terms of both the state and the society. In addition, it has certain disadvantages. There are many reasons and aims in selecting the BOT model. The most important of these reasons is the continuation of the projects and the required work without imposing a burden on the public budget. Islamic law has a structure that prioritizes public interest. In this context, the state must observe the public interest in its operations. In the BOT model, the existence of public interest is particularly notable with the projects implemented in the fields of hospitals, roads, bridges, airports and etc. Islamic jurists have different opinions regarding the contracts administered in the BOT model. Some of them consider this model as a new contract that does not exist in the tradition, while others compare it to a traditional contract. The analogies of the traditional contract have been compared to leasing, payment, foundation, fief, corporate (with partnership) and exception contracts. Others, on the other hand, considered the BOT model as an atramentous contract combining several different contracts. It seems difficult to argue that the BOT model is completely similar to any of the classical fiqh contracts. However, as a result of the BOT model, it is considered an agreement with a company to conclude a contract; therefore there is a more prominent similarity to an exception contract. Nonetheless, it is not possible to say that the BOT model fully complies with the traditional exception contract. As a matter of fact, while there is no time determination in the exception contract, the time is determined in the BOT model. In the exception contract, while the material must be completely covered by the private sector, in the BOT model, issues such as the right to land and building construction are covered by the employer. In addition, the classical exception contract does not contain many contracts as in the BOT model; and it is an agreement in which the fee is presented and terminated after the order is placed. Nonetheless, the BOT contract includes three basic contracts (construction-operation-transfer) as well as many contracts related to these contracts. Finally, considering that the BOT model was a contract, the issues in the context of the basic elements that should be included in a contract were discussed in this study. In addition, situations such as ignorance, gharar and interest in terms of affecting the validity of the contract were discussed and dealt with in terms of the BOT contract. (shrink)

Carrying out analyses performed on the provisions of “Pre-Islamic Divine Laws”, which is described as the religious provisions introduced by the prophets before Prophet Muhammad is one of the questions of debate in Shafiī Sect. The reason laying out of this controversy is based on the question, whether the provisions enunciated via the prophets before the Prophet Muhammad are recognized within the legal aspect, or not. On the other hand, there is no controversy between the procedural, on non-binding for Muslims, (...) about of the previous divine communiqués, which are not mentioned in the Qur’ānor the sunnah, and previous divine messages with evidence that they were abolished despite their presence in these two sources. In the same way, there is no debate about the fact that the provisions of the previous divine religions that were in force for Muslims, such as fasting, also remained in force for Muslims. In this case, with taking part in the Qur’ān or the sunnah, the provisions that there is no evidence about whether they abolished or not, it is debated that they are for Muslims binding or not.In this study, our objective is to carry out analyses and researches on the methodological conceptions of Imam Shafiī and Shafiī lawmen with regards to Pre-Islamic Divine Laws, which have no evidence for being retained in force or being abolished for Muslims despite being mentioned in the Qur’ān or the sunnah, as well as on the level of theoretical conceptions of these scribes being put into practice within the scope of fiqh examples.SummaryIt is a must to identify the scope of Pre-Islamic Divine Laws (Sharia Man Qablanā) [shariah of those before us], which is discussed in terms of being recognized as a shariah evidence by the Shafiī lawmen before analzying the opinions of Shafiī Sect followers. Yet, setting forth the opinions in a healthy manner is based on the identification of the question of debate. Within this context, it is a must to draw up the lines and borders in what the Shafiī lawmen / lawyer and canonists / judiciary mean by the term “Pre-Islamic Divine Laws (Sharia Man Qablanā)” in order to designate the practical results of methodological discussions on Pre-Islamic Divine Laws.Sharia Man Qablanā, of which lexical meaning is “shariah of those before us” is defined in fiqh as follows: “These are the religious provisions acquainted by the prophets before Prophet Muhammad”. In fact, this definition can be categorized as “general” in terms of the evidential value of Sharia Man Qablanā. In that, since it is not possible to carry out an analysis on the reliability of the informational value in the previous divine notices, which cannot be conferred neither in the Holy Qur’ān and the sunnah, each and every lawmen and canonists, including those recognizing Sharia Man Qablanā as hujjat (proof), have come to an agreement that the early divine notices that are not mentioned in the Holy Qur’ān and sunnah will not be recognized in terms of its informational value for Muslims, thus being besides the mark to discuss its validity and bindingness. In this case, the outlines of Sharia Man Qablanā, as controversial in terms of its hujjat value, must be specified. Belonging the earlier divine religions as per the works of lawmen, Sharia Man Qablanā is subjected to a categorization of four part with regard to provisions mentioned in the Holy Qur’ān or the sunnah, whether they are recognized as hujjat by Muslims. 1. The provisions that are not mentioned in the Holy Qur’ān or the sunnah, yet being mentioned only in the earlier monotheistic revelations. The fiqh lawmen have come to an agreement that these provisions are not binding for Muslims, and even that it is not permissible to act in accordance with these provisions. Because, there is no certain information on whether these provisions are reliable.2. The earlier divine notices, which have been proven to be nullified for Muslims, despite being mentioned in the Holy Qur’ān or the sunnah. Since these divine notices have lost their validity, there is a consensus among Muslims that they are not recognized as hujjat. The following hadith is shown as an example as of from the sunnah for this part “Pillage was not halal to those before me, but not it is halal to me” (Muslim, “Masājid”, 56). In that, this hadith indicates that prohibition with regards to the pillage, which was not permissible to the earlier ummahs (nations), is not recognized by Muslims. Thus, rendering pillage as not halal cannot be attributed to Muslims. 3. The provisions of earlier divine religions, which remained in force about Muslims. The canonists exemplify this matter with “fasting”. It can be understood from the verse “O ye who believe! Fasting is prescribed to you as it was prescribed to those before you, that ye may (learn) self-restraint.” (al-Baqara 2/183) that the fasting was a provision as prescribed for the earlier ummahs, which remained in force for Muslims as well. There is no controversy on the matter that fasting is prescribed for Muslims too, as it can be clearly seen from the verse. The hadith of the Prophet Muhammad “It (sacrificing an animal for God) is the sunnah from your Ancestor Ibrahim” (Ibn Majah, “Adāhi”, 3) can be shown as an example that sacrificing an animal for god is applicable to Muslims as well. As a matter of fact, this hadith attests that sacrificing an animal for god is applicable to Muslims, as it is in the religion of the Prophet Ibrahim. 4. The provisions from earlier divine religions, which have no evidence whether they were revoked or remaimed in force for Muslims. The canonists cannot find any evidence for the provisions with regards to the alternative utilization of something between the partners to be recognized as applicable for Muslims within the scope of the following verses: “Here is a she-camel: she has a right of watering, and ye have a right of watering, (severally) on a day appointed” (al-Shu‘ara 26/155) and “And tell them that the water is to be divided between them: Each one's right to drink being brought forward (by suitable turns)” (al-Qamar 54/28). Similarly, there is no evidence that the provisions concerning the retailation, as prescribed in Torah, whether they remained in force or were revoked, as it can be seen in the verse “We ordained therein for them: "Life for life, eye for eye, nose or nose, ear for ear, tooth for tooth, and wounds equal for equal” (al-Ma’ida 5/45). (shrink)

People who are not Muslims but live under the rule of the Islamic state under certain conditions are called "non-Muslim". With the Prophet’s migration to Madinah, he encountered a non-Muslim community and clearly demonstrated his stance on them with the "Madinah Convention". As a result of the intense conquest movements that started with the Companions period, non-Muslim people became the citizen of the Islamic state. Legal arrangements have been made regarding these, and their status before the state and within the (...) society has been determined. These people, who were not forced to accept the Islamic faith, were also given the freedom of belief and worship. However, by limiting the framework of this freedom to the interests of the Islamic state and Muslim society, social security and peace were ensured, and the basic parameters of coexistence were tried to be established. Islamic states have evaluated the non-Muslim temples in the places taken by peace and the places taken as a result of war. While obtaining the consent of the non-Muslim people for the demolition of the temples or the conversion of them into mosques in the places taken by peace; In the dispositions on the temples located in the places taken by the war, they were treated more freely. In principle, the principle of not touching or repairing the temples of non-Muslims built before the conquest was preserved in almost all periods, and the construction of new temples was not viewed positively. Yes, as a requirement of religion, non-Muslims were freed in their beliefs and were not forced to become Muslims, taking into account the freedom of religion and conscience. However, in order for the Muslim community to preserve its religion, non-Muslims are not allowed to live their religion, culture and traditions in front of the public; Restrictions have also been imposed on their temples. In this context, a series of measures were taken, such as the demolition of some churches and the reduction of the number of existing temples. Despite this, it was also allowed to build new temples in case of necessity. In this case, the magnificent construction of the temples was not allowed, and they were required to comply with some criteria in architecture. In this study, starting from the time of the Prophet, an answer will be sought to the question of whether the policies carried out by the Islamic states towards the places of worship of non-Muslims are religious or political, with some examples of practice from different periods of the history of Islamic law. In this context, the status of the temples belonging to these people, who are defined as "dhimmis" in the Islamic state, rather than their general legal status, forms the basis of our study. Our study has been limited to Christian and Jewish temples. (shrink)

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. (shrink)

The judgeship is one of the oldest professions in history. In the Hebrews, which is a divinely based legal system, judgeship arised and practiced both by the Torah and later by the contributions of jurists. In the Torah, which is the main source of Hebrew law, it is mentioned that the other prophets and Moses were authorized both as rulers and judges. Moreover, judges are ordered to make fair judgments on the basis of protecting the weak and prohibited of bribery. (...) We see that there are similar or even the same provisions in Islamic law. In Islamic law, it is seen that both the previous prophets and the last prophet Muhammad have the powers as prophet, ruler and judge. Moreover, in the Qur'an, judges are ordered to make judgments fairly, avoid bribery and without favoring any litigants. In this study, the rules of ancient Hebrew law and the Islamic law will be compared. Since the subject is limited to judges and courts, first the status and appointment of judges will be explained, then the courts and the trial procedure will be compared, and afterwards the responsibilities of judges and the qualifications required to be appointed as a judge will be discussed. In this respect, the rules in Hebrew law will be compared with Islamic law only in the light of the information given, and the more detailed rules in Islamic law will not be cited because they don’t have equivalents in Hebrew law. (shrink)

Futures contracts in agricultural commodities are an agreement to buy or sell a predetermined amount of agricultural commodities (such as wheat, corn, cotton, soybeans, live pork, live cattle, cocoa, etc.) at a specific price depending on the price on a specific date in the future. Futures contracts in agricultural commodities are carried out under “commodity futures contracts” on the futures exchange. These contracts are executed in two ways in terms of the delivery of the contract subject; physical delivery and cash (...) settlement. In the physical delivery, the underlying asset is physically received at the end of maturity. In our country, physical delivery method is used in futures contracts made on commodities. In the second contract method that results in cash settlement, there is no physical delivery of the underlying asset at the end of maturity. The transaction takes place over the settlement price at the end of maturity. Futures contracts in agricultural commodities can be analyzed in two categories in terms of Islamic law. First, within the scope of sales where both the goods and the price are on credit; the second is a combined contract that includes a promise to sell and a contract of sale when due. It is more convenient to analyze in the former because the agricultural commodities in the warehouse are kept ready to be delivered when due and the commodities price is also delivered on time. In this category, it resembles the sale of a credit on credit, which is prohibited in Islamic law. We can see that there are five parties within the exchange organization regarding the futures contracts in agricultural commodities; futures and options exchange, clearing house, brokerage houses, market participants, supervisory institutions. When the transactions of the related parties are examined in terms of legal capacity and power of representation; it is observed that brokerage houses transacting on behalf of sellers and customers operate by proxy. On the other hand, the Exchange, the Clearinghouse (Takasbank) and the custody warehouse within the scope of the exchange system; carries out transactions on behalf of the parties both as a proxy and a guarantor. Therefore, this futures transaction has the nature of containing more than one contract. When analyzed in terms of the establishment of the contract; if there are agricultural commodities that are considered as legitimate property of the Islamic law (mütekavvim), there is no objection regarding the parties and the offer-acceptance. In addition the delivery time of the commodity subject to the contract must be equal to the amount sold and the amount in the warehouse, which is guaranteed to be in the warehouse. In terms of invalid condition, one-sided benefit causing conflict for the parties contains something prohibited by the legal order. It is seen that it does not contain conditions contrary to the content of the contract and established practices. However, except for the condition that the collateral is retained with interest income in direct proportion to the period of stay in the Clearinghouse (Takasbank), in order to obtain the highest return. In terms of enforcement conditions, after the approval of the buyer and seller, transactions are carried out within the exchange system without asking for the right and approval of another person. Therefore, this contract can be considered as a running contract. In terms of the bindingness of this contract; at first glance, it can be seen as a mutual promise and non-obligatory promise based on the fact that the commodity and its price are not cash. But when the subject is examined in depth, it turns out to be a different situation. Because both parties are under mutual obligation by paying the guarantee stipulated by the Exchange, one party is obliged to deliver the commodity on time and the other party to deliver the price. In addition, the contract does not allow the parties to imagine the right. So, this contract can be considered as an obligatory contract. However, based on the current functioning futures contracts in agricultural commodities as a whole, it is considered unappropriate to Islamic law. In this study, first, the nature of futures contracts in agricultural commodities that are not deemed suitable for Islamic law in its current form are determined. Then, an analysis from the point of view of Islamic law was made and some offers were made for a model that was reconfigurated according to Islamic law. (shrink)

Women are more visible in economic and public life than before. This visibility has led to a change in the social perspective towards women in recent centuries. Some provisions regarding women, which are generally accepted in classical fiqh teachings, have started to be discussed again. It has also started to be seen that the existence of different perspectives has emerged within these discussions. The issue of the amount of the victim's diya, which is included in the field of Islamic criminal (...) law, is one of the issues that has been discussed on a different ground recently in this context. The view that the diya penalty of a woman is half of that of a man has been generally accepted and practiced since the early periods of Islam. However, the issue, which has come to the agenda again with the conferences and articles written recently, has formed the basis of heated disputes. Considering the importance of the legal aspect of the subject, it is aimed to deal with the issue in detail in this study. Then, the evidences of the critical view that "the diya of a woman is the same as that of a man" will be explained. Finally, the points of disagreement on the subject will be determined, and a result will be tried to be reached by considering the opinions and evidences mentioned in the general framework. (shrink)

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. (shrink)

Almost every state has its own legal system and there is a legal system in accordance with the social norms of the state. However, although states have autonomy with their own legal systems, the legal system of each state unites under larger legal systems. From this point of view, three major legal systems can be accepted; Anglo-Saxon Legal System (English Legal System, Common Law), Continental European Legal System (Legal system of European states based on Roman law), Social Legal System on (...) which Russian Federation is based. Apart from these systems, there is also an Islamic legal system with its unique structure. The reason why the Islamic legal system is unique is that it is based on both religious and rational sources. In general, the case-based method is used in the Anglo-Saxon Legal System, and the rule-based method is used in the Continental European Legal System. Which one of these two method used by Islamic law which takes its source from Qur’an and hadith well? Or is it use both methods? Our aim in this study, in addition to analysing the operation of these two methods in Islamic law from a logical point of view, is to analyse the integration of the rule-based method into the case-based method and the case-based method with the rule-based method. With this research it is to provide a logical proposal to extend the intended use of analogy in Islamic law. As a matter of fact, we think that different branches of science should come together in order to produce new suggestions in this field. (shrink)

The focus of this study is to explore the impact of transformation from living as a community and perceiving cooperation as a responsibility to meet each other’s needs to individualized society of the modern life due to the capitalist market system on religious obligations with economic implications through emerging institution in the modern period. This study will first analyze how the proxy-embeddedness has led to a transformation in the society from the perspective of Islamic economics under four categories: (1) the (...) weakening of Muslims’ relations with their relatives and neighbours; (2) Equalization of worship for different purposes on a common denominator; (3) Lack of social awareness due to deprivation of the experience of performing worship personally; and (4) the prioritization of those capable of being productive over unproductive people in terms of being beneficiaries of zakat or other types of benefits. Worships such as zakāt and sacrifice are among the acts of worshipping that enable wealthy Muslims to help those in need financially. Although the transfer of material resources to the needy people through modern institutions ensures the fulfilment of worship, through which principles and objectives this transfer is carried out are also important. Significant transformations are observed in the way these worships are performed compared to the pre-modern period, as institutions that carry out zakāt and sacrificial meat collection and distribution activities in line with capitalist principles such as low transaction costs and efficiency. First, it is expected from a Muslim to be aware of the social environment he/she is in, be aware of the needy, and maintain social relations within this awareness. All kinds of charity and financial aid at the level of individual relations, especially zakāt and sacrifice, ensure the continuation of this awareness. If Muslims perform these worships and charity activities through institutions, the awareness of one’s environment will weaken. A second transformation is to make these worships indistinguishable from each other by equating them to the common denominator of paying money. This situation leads to the equalization of worship at the material level and causes the differences to be invisible for Muslims who perform the worship. A third transformation is that the realization of worship by institutions through the proxy system causes Muslims to be deprived of the experience of performing worship individually. While these prayers are performed through institutions in an efficient and low-cost way, the only thing expected from Muslims is to make the necessary payment through the bank. In this case, the spiritual contributions expected to be realized during the fulfilment of the worship decrease. Finally, we see that some institutions utilize capitalist principles and goals to decide who should receive financial aid. For this reason, people who can become a productive factor due to the help they receive are prioritized over others. There is a rational choice behind this decision mechanism: It is aimed to reduce the number of needy people in society by transforming zakat recipients into zakāt payers. On the other hand, Islamic sources do not consider such a priority among those who deserve to receive zakāt. Moreover, this situation will lead to the permanent postponement of people who are not included as a productive factor in the capitalist system but in need. In the second part of the study, an analysis of the agency (vekalet) system, which allows individuals to transfer some of their responsibilities to private institutions to spend time more efficiently, is conducted through the example of nursing houses. Another example of the fulfilment of zakat and sacrifice through the proxies given to institutions is that Muslims fulfil their responsibilities towards their relatives through institutions such as nursing houses. The reason for such a need arises from the fact that people, who take place as human capital in the capitalist system, are required to spend their time to improve themselves, get new education and gain more experience, instead of spending their time taking care of their relatives so that the production process can continue to grow. Although this type of service contract is formally valid in terms of Islamic law when evaluated in terms of the bond that Islamic morality envisages to be established between Muslims and their relatives and the protection of this bond, institutions such as nursing houses can lead to the commodification of family ties due to the transfer of responsibilities to relatives in return for a service fee. (shrink)

Created as a social being, human beings communicate and interact with other people in society. Their economic activities are also part of this communication.Transactions such as shopping and lending are also an element of the economy. Troughout history, legal systems have laid down rules regulating these activities,and imposed orders and prohibitions. Studies comparing Islamic and Jewish legal systems, which originated from revelation and still applied by their followers, are less than those made in terms of the history of religions. The (...) aim of this study is to contribute to the comperative studies in the field of law by examining the similar and differente aspects of both legal systems in terms of contractual contract. It has been determined that there are more similarities in the provisions of Islamic law and Jewish law regarding the issue of lending. The fact that the sources of these two legal systems are the same is the most natural reason for similarity.The differences are due to the interpretations of the Jews that changed religious rules in order to ensure harmony between the law and the life conditions that changed over time. (shrink)

Islamic law has an advanced legal theory, apart from the four basic decision-making methods, many judgment-gaining theories based on interpretation and reasoning have been derived which have been developed by Islamic jurists in the process. Islamic jurists have used some of their knowledge and techniques to correct the problematic results that arise from both the incorrect use of methods of obtaining judgments and the expansion of the scope of these methods. With these interdisciplinary studies, it was aimed to interpret the (...) criticisms directed against the analogy process and the causes accurately. One of the methods used at the point of revealing whether these criticisms and objections are based on a justified reason and evidence is the debating method. The method of debating, which has become an independent discipline along with fiqh and kalām in the Islamic scientific tradition, began to form during the periods when sects were formed (II century Hijri). The discipline of debate, which has found a practical field in the methodology of Islamic jurisprudence (fiqh), has been particularly effective in interpreting analogy (qiyas), which constitutes an important part of fiqh, and is even assumed to be among the methods of inference (istidlāl). Many Fasād al-waḍʻ (invalidity of an argument of syllogism) is one of the methods of debating has been used in uṣūl al-fiqh. Fasād al-waḍ‘ has been described as the binding of a provision to a cause (ʻillat) that is the opposite of what that cause requires. This is a situation that completely invalidates the cause. In Fasād al-wad‘, the objector proves that the analogy is erroneous by directing objections to the person who brings the evidence. Since Fasād al-wad‘ is a type of objection directed to the basis of the fiction of analogy, it has been accepted by Islamic jurists as one of the strong objections directed to the cause/analogy. However, the issue of which cause this type of objection can be directed against has been discussed among Islamic jurists. Hanafīs accept Fasād al-wad‘ as a sound objection method, but they think that it is not possible to object to the effective causes (al-ʻillat al-muaththirah) with it. Because, according to Hanafīs, the correctness of the effective quality has been revealed by the Qur’ān, the Sunnah and the consensus (ijmā’). Because these proofs do not produce false qualifications. According to Shafeis, all causes and provision can be objected with Fasād al-wad’. In fact, some Shāfi'ī jurists consider this method as a general type of objection, not aunique one to the analogy. Due to these different interpretations that Islāmic law schools attribute to the conditions of analogy and the nature of Fasād al-wad‘, different results may arise in furû issues. In this study, Fasād al-wad‘as a type of objection to the analogy process in Islamic legal procedure has been examined and the nature of Fasād al-wad‘ has been tried to be revealed by determining the comparative furû. Thus, it is aimed to identify and analyse the diversity of legal reasoning methods, which have an important place in the logic of law in Islam and can be gathered under the name of analogy. (shrink)

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 another 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 evidence in terms of certitude. According to ḥanafīs, al-khabar al-wāhid is a presumptive evidence 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.Summary: The purpose of this study is to try to demonstrate that an assertion in the Ph.D. thesis, The History and Doctrine of Ẓāhirī Madhhab, completed by Amr Osman in 2010 is incorrect. It can be summarized that in his study, Amr Osman claims that the affiliation of the schools to ahl-al-hadith and ahl-al-ra’y in conventional classification is wrong. According to him, contrary to what is known, the School of Ẓāhiriyya is closer to School of Ḥanafiyya rather than schools coming out of ahl-al-hadith. In this study, one of the arguments that he relied on to support his claim is studied in order to prove that his claim was inaccurate. Osman claims that ẓāhirīs are closer to ḥanifīs, based on the view that in both schools the general utterances embrace all of their members in their usage and they are a certain indicant to all of their members. At this stage, although the views of both schools are common, the ḥanifīs don’t accept the idea that the general statements of Qur’ān can be established with al-khabar-al-wāhid, those which they acknowledge as presumptive as of certitude. However, according to the ẓāhirīs, the certitude of al-khabar al-wāhid is as precise as the narrated report, so it can specify the general statements of Qur’ān which are in equal power. The related dispute between the schools has been reflected on many Islamic law regulations. Some of them are:1. Ḥanafīs state that the correct Quranic prayer may be performed by reading any or a few verses of the Qur’ān in prayer, which is a practice based on the verse “Read what you can read from the Qur’ān now”. On the other hand, the ẓāhirīs have established the related order based on the report “There is no prayer without reading Umm Al-Quran (Surah al-Fatehah)” and it is obligatory (fardh) to read Surah al-Fatehah in prayers.2. Because that the terms milk-mother and milk sister are in general form in the verse “It is forbidden to you to marry these people...Your milk-mothers who nursed you, your milk-sisters who nursed you” the ḥanafīs clarify that it is sufficient for a child to breastfeed only one time in order to form a milk-kinship. They do not act in accordance with the solitary report (al-khabar-al-wāhids) which indicate that the milk kinship specifying the verse shall only be formed with at least three or five breastfeeding. However, one of the ẓāhirīs, Dāwūd al-Ẓāhirī, has specified the verse with the report indicating that the kinship shall not be formed with less than three breastfeeding by the child, and Ibn Ḥazm has specified it with Salim hadith which indicates that the kinship shall be formed with five breastfeeding.3. According to ḥanafīs, there is an alimony and inhabiting right of the widow woman to be procured by the husband within the period of delay who divorced her either with irreversible divorce (talāq al-bāin) or reversible divorce (talāq al-ric‘ī) according to the generalization of the verse “Give shelter to them (the women you have divorced) in some part of your household within your capacity.” They did not act with the report of Fātima binti Qays, who specified the generalization of the verse. On the other hand, the ẓāhirīs recognize the abovementioned rights only for the women who got divorced with irreversible divorce or the ones who are pregnant, specifying the verse with the report indicating that His Holiness the Prophet does not grant alimony and inhabiting to the woman who was divorced with reversible divorce.4. According to ḥanafīs, the criminal who committed a crime that would require a death penalty and took refuge in the Harem region could not be executed while in Ḥarem, according to the common statement of the verse, “Whoever enters there, will be safe.” Dāwūd al-Ẓāhirī, one of the ẓāhirīs has specified the verse with the report indicating that His Holiness the Prophet has authorized the execution of the sentence to Ibn Khattal in Ḥarem on the day of the conquering of Mecca and he states that the death sentence can be executed wherever the criminal is caught, even if it is inside the Harem. Ibn Ḥazm shares the same view with ḥanafīs regarding the provision of this issue. However, the reason for his opinion stems from the fact that the report about Ibn Khattal was an event specific to that day. As it is seen, even though the ḥanefīs and ẓāhirīs share the same opinion about the general utterances being a certain indicant to all their members, they have disagreements upon the argument about the general utterances of Quran being specified by al-khabar al-wāhid and many Islamic Law regulations have been issued by these schools based on such disagreements. According to us, in the final analysis, Amr Osman’s claim must be met with caution. (shrink)

Basic characteristic of Islamic heritage law, principally it has accepted the two-to-one ratio between the male and the female children/siblings in division of heritage. In Islamic inheritance law, the main/basic reason why the share of the male is twice the share of the female is no “value” judgments given to female/women in creation and gender in Islam, on the contrary, are real realities related with the roles and financial obligations that man and woman have undertaken, in other words, related with (...) “socio-economic structure/fact” in the family and society structure foreseen by Islam. As a matter of fact, “need principle” is based on in division and succession of heritageand a fair arrangement has been made in accordance with the rights and responsibilities of the husband and wife in Islamic Law. In some classical tafsīr books, the concept of “degree” in the verse “... Men have a degree (right) over women” (Al-Baqara 2/228) mentioning the mutual rights and responsibilities of women and men; and the expression of “lil al-dhakari mithlu haẓẓ al-unthayain” in the verse –the inheritance of man is the share of two women– (Al-Nisā 4/11) mentioning the inheritance shares of boys and girls is interpreted against the woman by disregarding the intended purpose and socio-economic contexts of these verses. As a result of this interpretation, the share of men in inheritance is twice the share of women in Islamic law is ontologically (existential/creation) based on a justification that “man is superior to woman”. In this article/study, an analyticallook atthe interpretations in some classical tafsīr books on the axis of “daraja/degree” and “lil al-dhakari mithlu haẓẓ al-unthayain” that today sheds light on the sociological-historical background of depriving the daughter from the heritage will be made. Summary: Just as there is no way to determine a person’s sex, it is not either possible by reason to have such an opportunity. - With the possibility of medical intervention nowadays - sex is determined by the discretion of the Supreme Creator rather than will. Indeed, it is mentioned in the Qur’ān: To Allah belongs the dominion of the heavens and the earth; He creates what he wills. He gives to whom He wills female [children], and He gives to whom He wills males (Al-Shūrā 42/49.)In addition to human biological sex, there is also social gender. Indeed, the term “sex” refers to being biologically female or male, while the term "gender" refers to the social and cultural identity of a woman or man, or the social roles that occur in the historical process.Accordingly, while it is not possible to determine biological sex (in normal circumstances in advance), determining gender is shaped by the cultural will of individuals and societies. As a matter of fact, gender is shaped according to the religions, customs and cultures of the societies and it shows differences according to time, culture and family structure. In this context, in the pre-Islamic Arab society, the gender of the girl or the woman was shaped by the custom of the ritual and customs. Indeed, it is a known fact that during the period of Jahiliyyah, in terms of social gender, the girl/woman has been deprived of many social and economic rights, especially heritage. The Qur’ān has brought the girls who, in the period of Jahiliyyah, were oppressed in terms of gender, deprived of many social and economical rights, treated as second class human, embarrassed of themselves and buried alive, to the same position as man. In this context, as it is in every field in the direction of social structure and social conditions of that day, also in the field of inheritance law, a number of regulations were made in the Qur’ān and the Sunnah being the main sources of Islam. The divisions of the inheritance were connected with religious and legal rules and the shares of the inheritance of the sons and daughters were determined by naṣṣ (verses and hadiths).However, in Islamic inheritance law, as a requirement of the structure of family and society accepted by Islam, in principle, “two-to-one” measures have been adopted between male and female children. As a matter of fact, in this aspect, it is mentioned in the Qur’ān: Allah instructs you concerning your children: for the male, what is equal to the share of two females (Al-Nisā 4/11.)On one hand, the principle that Islamic law brings between boys and girls; Seems to be an inequality in terms of the arrangement in which "the inheritance share of the male child is twice the share of the female child", while on the other hand, within the border of in the family foreseen by Islam, this regulation has not been seen as an injustice and inequity by Muslim societies, because in Islamic family law, a man is obliged to ensure the livelihood of the family after marriage. He is also obliged to give his wife her mahr when marrying.In Islamic inheritance law, “necessity principle” is taken as the basis of responsibility that women and man have undertaken in family and society. Therefore, even though giving nothing at all to those who are not in need and giving less to those who are in less need, giving too much to those who are in much need might seem contrary to the principle of equality, it is a necessity of the principle of justice and fairness. As a matter of fact, while "law equality, necessity in sharing" principle, law is arranged according to people's qualifications, goods and wealth sharing is divided according to the needs of people. In this context, there has been a fair division in Islamic heritage law based on the necessity, (distributive) justice and fairness principle. Indeed, the French philosopher Roger Garaudy (1913-2012), who chose /converted to Islam, evaluates the following about the proportion of male child in the Qur'an to that of female child: “When we consider that in the Arab society all the obligations of the family and of the care of the parents and of all the things that we call ‘social security’ today are put on the shoulders of the husband, the hereditary male child's share must be twice as high as the female child’s is”.As Garaudy argues, the difference in the inheritance of women and men in Islamic inheritance law is not a legal discrimination/inequality, but a form of divisiveness stemming from a need based on the role and responsibility that women and men have undertaken in the family and society. Therefore, giving nothing to those who need nothing, giving little to those who need little, and giving a lot to those who need a lot,even though may seem contradictious to the principle of equality, it becomes a necessity of equity and (distributive) justice principle. In this case, in Islamic inheritance law, the basic reason why the share of the male child is twice the share of the female child, is social and economic reasons and it is possible to rank them as follows:1) According to Islamic law, women are not obliged to make their own economic livelihoods. The woman’s economic responsibility belongs to her father or brothers before marriage, and then to her husband after marriage. 2) When a woman is married she is not responsible for herself or other family members’ livelihood. The male is obliged to make a living for himself, his wife and his children.3) While married, the male is obliged to give the wife mahr. The woman has no such responsibility.As it is understood from the above explanations, in Islamic inheritance law, the basic reason why the share of the male child is twice the share of the female child is not about the ontologically “value” based on creation and sex given to the woman (girl child) in Islam. On the contrary, it is the real facts concerning the family and society structure that Islam predicts, the roles and financial obligations that man and woman have undertaken, namely “socio-economic structure/fact”.In some commentaries in classical commentary books, the rights and responsibilities of women and men are referred to, like: the word “degree” mentioned in: …but the men have a degree over them [in responsibility and authority (Al-Baqara 2/228), and the talk about the inheritance shares of boys and girls in: for the male, what is equal to the share of two females (Al-Nisā 4/11). Eventually, the concepts “lil al-dhakari mithlu haẓẓ al-unthayain” have been associated with the gender of the woman/girl child ontologically (based on social fact) by ignoring the referent purpose and socio-economic contexts of these verses. As a result of these interpretations, it was desired that the Islamic law principle of inheritance share of male child being twice the share of female child, ontologically, should be based on a justification that “man is superior to woman”.In this study, some of the era’s dominant culture classical interpretations grounding women's inheritances share on her gender and based on the axis of the concepts of "degree" and “lil al-dhakari mithlu haẓẓ al-unthayain” in the related verses of the Qur'ān will be elaborated. (shrink)

Polygyny, the marriage of a man with more than one woman at the same time is a well-known practiced in human history. Islamic law accepts the institution of polygyny as a substitute provision if it fulfills the certain conditions and reasons, -and limited the maximum number of wives to four. Although polygyny is mubah (permissible) in Islamic law, it is not an absolute right that every man can use arbitrarily. Thus in Islamic law, the legitimacy of polygyny has been attributed (...) to the presence of two basic conditions: the observance of justice among co-wives and providing maintnance. However, the observance of these conditions that is left to the mercy of men leads to the exploitation of the right for practicing to polygyny and victimization of the first spouse. Therefore, inserting some restrictions for using this right has come to the agenda from time to time in Islamic legal history. The first legal arrangements concerning the restriction of the polygyny (taaddud al-zawjāt) in the history of Islamic law were indirectly made with the Family Law Decree of 1917 which was prepared in the last periods of the Ottoman Empire. Among the late Islamic jurists, the issue of the limitation of polygyny by public authority in Islamic law continues to be discussed. The civil laws of contemporary Muslim countries contain different regulations on the issue. In this article, the restriction of polygyny by the public authority in Islamic family law will be focused on.Summary: Polygyny, the marriage of a man with more than one woman at the same time is a well-known practiced in human history. Islamic law accepts the institution of polygyny as a substitute provision if it fulfills the certain conditions and reasons, and limited the maximum number of wives to four. Thus, relevant verses in the Qur’an (al-Nisa 4/3, 129) and the Prophet’s own practice (al-Ahzab 33/50, 51, 59 al-Tahrim 66 / 3-5) show that it is legitimate for a man to marry more than one woman (up to four) at the same time in Islamic law. Although polygyny is legally permissible (mubah) in Islamic law it is not an absolute right that every man can arbitrarily use. Thus in Islamic law, the legitimacy of polygyny has been attributed to the presence of two basic conditions: the observance of justice among co-wives and providing maintenance. On the other hand, there may be some exceptional circumstances permitting polygyny in Islamic law. For example, when female population is much more than male in the society and when a, woman is can not fulfill her family duties due to her cureless illness, polygyny is permitted in Islamic law.As it can be understood from the explanations above, polygyny in Islamic law is not a general and mandatory provision that should be applied by every man who has legal capacity to marry. On the contrary, it is an exceptional provision that is justified if there are certain conditions and justifications. According to this; polygyny is a moral and legal institution that is made up of mutual consent based on individual and social conditions and needs in Islamic law. Therefore, men do not have to marry a second woman on their current wives, as well as women have the right to say “no” to marry a married man as a second wife.When the conditions and rationales indicated in the relevant verses and doctrine are evaluated together, it can be said that in order to be able to legitimize the polygyny in Islamic law, there must be three basic conditions:(1) Observing justice among spouses, (2) Having sufficient financial power to provide maintenance for spouses, (3) Existence of individual or social need or necessity.Therefore, in order to prevent the exploitation of polygyny, which is justified under certain conditions and justifications in Islamic law, the above-mentioned conditions must be fulfilled. Otherwise, polygyny can cause some problems, unrest and injustice for individual, family and society. Hence, in the presence of certain conditions and justifications, polygyny accepted in Islamic law as a moral and legal institution aiming the elimination of individual and social arbitration.Although the legitimacy of polygyny in Islamic law depends on the existence of certain conditions and special circumstances, it is a known fact that they are not always observed in practice. It can be said that the right of polygyny is a subject of abuse in practice. Therefore, the limitation of polygyny by the public authority has come to the fore in Islamic legal history. Today, control of the public authority and inserting some restrictions of polygyny continue to be discussed among the Islamic jurists. In the past, it is possible to say that the control of the exercising of this right has been done relatively by society (social environment). However, nowadays, since the society cannot perform the control mechanism, it is brought up by the state (public authority) on behalf of the society.Among the contemporary Islamic jurists regarding the supervision or limitation of polygyny by the public authority; there are two approaches: “those who accept” and “those who do not accept” such restrictions.Islamic jurists, who accept that public authority is allowed to intervene in polygyny, grounded their views on two perspectives: The first is that the polygyny is legally permissible and the public authority has the authority to limit the permissible (mubah) in Islamic law. The second is that polygyny is restricted with the conditions in the Qur’anic verses such as “husband’s observation supervision of justice among his wives” and “having the power for ensuring the livelihood (nafaqa) of his wives” and it is more appropriate for the benefit of society and the purpose of the legislator (Shari’) to be subject to the control of the public authority whether these conditions are present or not. Islamic jurists, who do not agree that the public authority has the right to intervene in polygyny grounded their views on two perspectives as well: First, polygyny is a legitimate right mentioned in the verses in Islamic law and there is no definite proof that this can be prohibited or restricted by the public authority. Secondly, it is contrary to the verses to prohibit or limit the right that the Qur’an makes legitimate (free).Thus, it is possible to say that the opinion which accepts that the public authority has to limit polygyny is more accurate in terms today’s social conditions. Namely, polygyny is linked to two basic conditions: ”husband’s observance of justice among his wives and having the power to provide maintenance for his wives. Therefore, supervision of the public authority on checking the existence of these conditions is more appropriate for the purpose of the legislator (Shari legitimizing polygyny and social benefit.In fact, the Ottoman Family Law Decree of 1917 indirectly limited the right of the husband to marry more than one woman, giving the woman right to stipulate a condition in her marriage contract that her husband not to marry a second woman. In the 1924 Draft of Family Law Decree, which was prepared after the repeal of the Family Law Decree of 1917, but not enacted, it was proposed that the application of polygyny should be presented to the approval judge.In today’-s Muslim countries, there are three different practices: namely “completely prohibiting polygyny”, ”releasing polygyny” and “giving the court the right to monitor the existence of necessary conditions “. In countries such as Morocco, Algeria, Iraq, Syria, Indonesia, Malaysia (and Pakistan), the validity of polygyny depends on the permission and supervision of the judiciary. Some of these countries which have accepted judicial review have given the judicial control for the requirement of justice, some of them the conditions of justice and maintenance some of them for the conditions of justice, maintenance and a legitimate justification.In sum, in accordance with the provisions of the relevant verses, polygyny in Islamic law is legitimately permissible (mubah). However, the public authority has the right and authority to limit the mubah in Islamic law in the case of the elimination of damage and the necessity of the public interest. On the other hand, the public authority has the right and authority to enact the law in Islamic law by preferring one of the existing ijtihads that meet the needs of the society and conforms to the conditions of the age.According to this, when the public authority made a statutory regulation that links the use of right of polygyny to the permission of the judge, this regulation is binding on society.Therefore, in the event of such a legal arrangement, it is possible for the public authority to allow the men who comply with the conditions and not to allow the ones who are not to comply with the conditions after conducting the necessary investigation. As a matter of fact, now Family Laws of many Muslim countries now include such legal arrangements. It is also worth mentioning here that there may be a necessity for a man to marry more than one woman (up to four) at the same time in terms of social benefits, when the population of male and female in a society is excessively disproportionate. In such circumstances, it is also possible that the public authority encourages, or even mandates, the marriage of men who have fulfilled the conditions to more than one woman. (shrink)

Gold has been used as money for many centuries in human history. In today's markets, it is observed that gold is subject to exchange transactions that are either similar to the ṣarf contract found in classical fiqh texts or much different and more complex than it. At this point, the question of how and in which category the current gold-related transactions will be evaluated in terms of Islamic law and the solution to this problem come to the fore. In this (...) article, Yusuf Erdem Gezgin's work titled " Gold Transactions in Financial Markets: A Review in Terms of Islamic Law", written on the subject, will be introduced. In this work, which he contributed to the literature, the author discussed gold transactions in financial markets. (shrink)

The article examines the metaphysical doctrine of being of the great Iranian philosopher and theologian Sadr ad-Din Shirazi, who fundamentally renewed philosophy in Islamic world. The following aspects of this doctrine are considered: primacy and hierarchy of being; the distinction between the concept of being and the reality of being; the difference between being and entity; the difference between being and quiddity. The article shows the similarity of Sadr ad-Din Shirazi’s doctrine and certain Thomas Aquinas’s conceptions, especially his doctrine of (...) the act of being. Both philosophers elaborated the ontological difference between being and entity. Therefore, they can not be included in the “oblivion of being” tradition which is the main feature of the history of European metaphysics, according to Martin Heidegger. (shrink)

The commentary dwells on certain features of al-Farabi’s work Risala fi Tanbih ‘ala Sabil al-Saadah and first of all the “Islamic” and universalist visions of the text. It explores the essential ethical doctrine of al-Farabi: the notions of “good deeds”, “appropriate states of soul” and, finally, “good distinction”. The strict observance of these "means" in pursuit of happiness leads, according to al-Farabi, to perfection of one’s virtues. It is concuded that al-Farabi links rationality and ethics placing his logical views in (...) the context of eudemonism. The translation and commentary show that al-Farabi's ethics is integrated in his project of making “virtuos city”. The commentary also elucidates the meanings of al-Farabi’s therms. (shrink)

The article covers main features of Early Modern Sufi Philosophy in Crimea. Based on the new discoveries of Arabic manuscripts in Turkey and Germany, the study provides analysis of the Sufi approach towards human onthology, developed by Crimean thinkers Ibrahim al-Qirimi, Abu Bakr al-Kafawi and finally Hussam al-Din al-Qirimi. Apart from the classical Sufi rethinking of a human being as the body-soul entity making spiritual journey towards final Perfect Man and approaching ultimate revival, Crimean thinkers also paid great attention to (...) the issue of human freedom, naming it by special term. In contrast to rather conservative background of Islamic discursive theology and other schools of Islamic philosophical thought of the Post-Classical period, special attention to this concept can be regarded as evidence of some "humanistic" tendencies among thinkers of the Crimean Khanate. The article also notes that this concept of freedom was considered by Crimean thinkers as one of the important conditions for the manifestation of Divine Attributes in human existence; that is, the anthropologic measurement of the pantheistic idea of "unity of being", widely poplular among Sufis of those times. Taking into account the fact that the modern notion of "freedom" in the Arabic philosophical thought is based predominantly on Western concepts, the new reading of Sufi Post-Classical manuscripts reveals autochthonous cultural potential of this tradition. (shrink)

Review of Ahmed Malik, S.. Islam and Evolution: Al-Ghazālī and the Modern Evolutionary Paradigm. London: Routledge.

One of most vivid examples of deep penetration of the Koran in Sufi consciousness which result became original mystical language is The Book of Spiritual Stayings of Muhammad al-Niffari (d. 977), an obscure figure in the history of Islamic Mysticism. As the main intermediaries-obstacles between the God and the person аl-Niffari considers three stages: 1) letter (harf), or Koran, 2) knowledge (ilm), 3) gnosis (ma’rifah). All three, in opinion al-Niffari, represent the veils hiding the God from Sufi. The language of (...) this Book is paradoxical and such paradoxicality shows the abnormal condition of Sufi consciousness and impossibility of expressing his mutual relation with God. Al-Niffari tries to demonstrate that any attempt of verbal expression of Supreme Essence is doomed to failure. The mostcharacteristic of Niffari’s doctrines is the doctrine of waqfah. Waqfah is regarded as the spirit of ma’rifah: whereas ma’rifah sees God and itself also, waqfah sees only God and it is God’s presence. Ma’rifah is the limit of the utterable, but waqfah is beyond the utterable. The Book of Spiritual Stayings may be regarded as an unique interpretation experience of Koran overcoming it as obstacle on the way toward to God. Owing to it the principle of unity of Deity is preserved in its purity. (shrink)

One of most vivid examples of deep penetration of the Koran in Sufi consciousness which result became original mystical language is The Book of Spiritual Stayings of Muhammad al-Niffari (d. 977), an obscure figure in the history of Islamic Mysticism. As the main intermediaries-obstacles between the God and the person аl-Niffari considers three stages: 1) letter (harf), or Koran, 2) knowledge (ilm), 3) gnosis (ma’rifah). All three, in opinion al-Niffari, represent the veils hiding the God from Sufi. The language of (...) this Book is paradoxical and such paradoxicality shows the abnormal condition of Sufi consciousness and impossibility of expressing his mutual relation with God. Al-Niffari tries to demonstrate that any attempt of verbal expression of Supreme Essence is doomed to failure. The mostcharacteristic of Niffari’s doctrines is the doctrine of waqfah. Waqfah is regarded as the spirit of ma’rifah: whereas ma’rifah sees God and itself also, waqfah sees only God and it is God’s presence. Ma’rifah is the limit of the utterable, but waqfah is beyond the utterable. The Book of Spiritual Stayings may be regarded as an unique interpretation experience of Koran overcoming it as obstacle on the way toward to God. Owing to it the principle of unity of Deity is preserved in its purity. (shrink)

This article challenges the widely-held belief, within and outside academia, that premodern Muslims did not make a distinction between the religious and secular. I explore the issue by examining several usages of the dīn – dunyā binary across diverse genres of medieval Islamic writings and assessing to what extent it accords with or diverges from the categories of the religious and secular as commonly used in the modern Western world. I situate my particular counter-claim vis-à-vis the argument against the relevance (...) of the religious–secular distinction to Islam made by Shahab Ahmed in his, What is Islam? The Importance of Being Islamic. My findings show that contrary to Ahmed and the broader consensus, premodern Muslims did in fact view the world in terms of distinct spheres of religion and non-religion and that this distinction was used to understand phenomena as diverse and significant as politics and prophethood. Nevertheless, the two categories interacted in a way distinct from the common understanding of the two in the modern world insofar as, under the medieval Islamic conception, it was religion that regulated the secular. My article will make sense of these similarities and differences in an effort to present an indigenous account of the religious–secular dialectic in medieval Islam, one that problematizes the current standard account which holds that these categories were invented within the modern West. (shrink)

Islamic philosophy; Islamic thought; Greek philosophy.

Articles, chiefly on Islamic philosophy.

_Dialogues for the Future_ provides a sneak peek at the long philosophic and intellectual journey of the renowned Arab scholar Taha Abderrahmane. This English translation allows English-speaking readers to engage with the open canvas of dialogue Taha has resiliently initiated.

9 Eastern Christianity and Jesuit Scholarship on Arabic and Islam: Modern History and Contemporary Theological Reflections -- 10 Autonomy, Dignity, Human Rights: Correcting a Popular Error -- 11 Liberal and Authoritarian Approaches to Raising Good Citizens -- 12 Stewardship as Welcome and Respect for the Dignity of the Vulnerable: An Essay in Bioethics -- 13 Dialogue in a Pluralist Context: Theological Ethics and the New Interest in Happiness -- Index.

This chapter presents the text of a lecture on the anthropology in the territory of rights given at the British Academy's 2009 Radcliffe-Brown Lecture in Social Anthropology. This text discusses the transnational initiatives for Muslim women's rights and the everyday lives of some village women in Egypt and argues that anthropologists can provide critical insight into the limits and politics of global discourses on rights. It suggests that anthropologists should intervene into the worlds of power that authorise, shape, and naturalise (...) rights work and the understandings of human social life to which it gives rise. (shrink)

Al-Kindi was the first philosopher of the Islamic world. He lived in Iraq and studied in Baghdad, where he became attached to the caliphal court. In due course he would become an important figure at court: a tutor to the caliph's son, and a central figure in the translation movement of the ninth century, which rendered much of Greek philosophy, science, and medicine into Arabic. Al-Kindi's wide-ranging intellectual interests included not only philosophy but also music, astronomy, mathematics, and medicine. Through (...) deep engagement with Greek tradition al-Kindi developed original theories on key issues in the philosophy of religion, metaphysics, physical science, and ethics. He is especially known for his arguments against the world's eternity, and his innovative use of Greek ideas to explore the idea of God's unity and transcendence. Despite al-Kindi's historical and philosophical importance no book has presented a complete, in-depth look at his thought until now. In this accessible introduction to al-Kindi's works, Peter Adamson surveys what is known of his life and examines his method and his attitude towards the Greek tradition, as well as his subtle relationship with the Muslim intellectual culture of his day. Above all the book focuses on explaining and evaluating the ideas found in al-Kindi's wide-ranging philosophical corpus, including works devoted to science and mathematics. Throughout, Adamson writes in language that is both serious and engaging, academic and approachable. This book will be of interest to experts in the field, but it requires no knowledge of Greek or Arabic, and is also aimed at non-experts who are simply interested in one of the greatest of Islamic philosophers. (shrink)