In a seminal modern work of uṣūl al-fiqh, al-Ākhund al-Khurāsānī argues that the two terms ṭalab and irāda are coined to refer to a single concept. Within the argument he implies that the Ashʿarīs, and some modern Twelver Shīʿa who lean towards their position, fall foul of a linguistic fallacy when they assert that ṭalab and irāda are distinct. For al-Khurāsānī, both ṭalab and irāda may be used in two distinct modes, a real mode or an initiating mode. (...) The former denotes a real seeking or willing within the essence of an actor, whereas the latter simply seeks to initiate the meaning of seeking or willing. Accordingly, an initiating ṭalab may be distinct from a real irāda, and a real ṭalab may be distinct from an initiating irāda, without undermining the position that ṭalab and irāda are conceptually identical. Analysis of al-Khurāsānī’s arguments, and some criticisms of it by later modern and contemporary scholars of uṣūl al-fiqh, will aim to broaden our understanding of the category of inshāʾ in Arabic, hitherto analysed through the lens of J. L. Austin’s notion of performatives. More generally, the paper takes the treatment of this linguistic issue as an example affirming the continued importance of modern and contemporary uṣūl al-fiqh for engaging with Arabic philosophy of language and argument. (shrink)

In a seminal modern work of uṣūl al-fiqh, al-Ākhund al-Khurāsānī (d. 1911) argues that the two terms ṭalab (seeking) and irāda (willing) are coined to refer to a single concept. Within the argument he implies that the Ashʿarīs, and some modern Twelver Shīʿa who lean towards their position, fall foul of a linguistic fallacy when they assert that ṭalab and irāda are distinct. For al-Khurāsānī, both ṭalab and irāda may be used in two distinct modes, a real (ḥaqīqī) (...) mode or an initiating mode (inshāʾī). The former denotes a real seeking or willing within the essence of an actor, whereas the latter simply seeks to initiate the meaning of seeking or willing. Accordingly, an initiating ṭalab may be distinct from a real irāda, and a real ṭalab may be distinct from an initiating irāda, without undermining the position that ṭalab and irāda are conceptually identical. Analysis of al-Khurāsānī’s arguments, and some criticisms of it by later modern and contemporary scholars of uṣūl al-fiqh, will aim to broaden our understanding of the category of inshāʾ in Arabic, hitherto analysed through the lens of J. L. Austin’s notion of performatives. More generally, the paper takes the treatment of this linguistic issue as an example affirming the continued importance of modern and contemporary uṣūl al-fiqh for engaging with Arabic philosophy of language and argument. (shrink)

This study includes an analytical study of the term "Qiyās al-Adna” among the Scholars of Uṣūl al-Fiqh. It is known that the Qiyās is divided into the following types: an analogy of higher order (Qiyās al-Awla), an analogy of an equivalent order (Qiyās al-Musawi), an analogy of a lower order (Qiyās al-Adna). However, Qiyās al-Adna raised issues and objections among some scholars, in past and present; hence, there is an urgent need to present a comprehensive study that shows (...) the meaning of Qiyās al-Adna for those who advocate it, discusses the objections and issues that have been raised about it, and clarifies its connection to other Qiyās types. Moreover, the study will concern the applied side of Qiyās al-Adna by explaining how jurists used it. The researcher used the analytical method and referred to the most important, ancient and modern Uṣūl al-Fiqh sources and references. The study concluded with results, the most prominent of which is that the Qiyās al-Adna has two meaning: the first is that in which the original case is more deserving of legal ruling than the new or parallel case, so the new case is considered as a lower order, and the second is that the effective cause in the new case is weaker than in the original case. Among the results of the study is that the objections directed to the Qiyās al-Adna are weak, and that it is not limited to the presumptive Qiyās on the most correct opinion, also, that the jurists used the term Qiyās al-Adna in the second meaning, which says that the lower order is in its effective cause, not the legal ruling. (shrink)

Due to the current shifting regional paradigms in the Middle East brought on by the series of popular uprisings known as the Arab Spring, this article focuses on the issue of minority rights within modern Islamic theorizing. Evaluating the writings of Islamic intellectuals such as Tariq Ramadan, Abdullah Ahmed An-Na’im and Rashid Al-Ghannushi, the article finds that there are indeed constructs available within modern Islamic theorizing that can help resolve current minority problems within Arab societies, albeit with the addition of (...) human rights discourse on citizenship and multiculturalism. Noting that minority–majority relations are a global problem, as seen through case studies of the United States and Europe, human rights discourse, cultural relativism and religion are explored, concluding that Islamic theorizing is a blend of the three. Turning to usul al fiqh, it is concluded that traditional Islamic approaches to minority rights fail to incorporate anything but religious minorities and those religious minorities are second-class citizens under shariah interpretation. The rise of the Ottoman millet system eventually helped shape the collective identity for minority groups, but it still placed sole emphasis on religious minorities and treated all minorities as unequal subjects under the sultanate. Building on the constructs of modern Islamic theorizing and expanding to include the concepts of multiculturalism and territorial citizenship, this article asserts that for minority–majority struggle to be solved, modernist Islamic theorists must transcend the traditional Islamic minority paradigm and instead promulgate citizenship as a basis for equality in society, applying new ijtihad for a fresh, integrative interpretation of minorities within Islam and the civil state. (shrink)

Ṣadr al-Sharīʿa al-Thānī al-Maḥbūbī (d. 747/1346) was the last major Māturīdī theologian of Transoxania. As he left no work of rational theology (kalām) proper, one of the chief sources of his theological thought is his book on legal theory, al-Tawḍīḥ fī ḥall ghawāmiḍ al-Tanqīḥ. Because the work served as a prominent reference for both legal theory and rational theol­ogy, an extensive commentary tradition on it emerged as it was transmitted from Transoxania to South Asia, Anatolia, and the Arab world. A (...) distinctive subfield of this commentary tradition consisted of glosses devoted exclusively to one specific section of al-Tawḍīḥ. Revolving around the nature of good and evil, and intimately linked to the question of human free will, this part of Ṣadr al-Sharīʿa’s text came to be treated as a separate work, commonly referred to as al-Muqaddimāt al-arbaʿ (“The four pro­legomena”). Due to its role as a highly sophisticated refutation of late Ashʿarī doctrine on human volition, al-Muqaddimāt al-arbaʿ eventually developed into a prime source for later Māturīdī scholars in their discussion of human volition and related topics. (shrink)

: The medieval Karaite grammarian and exegete Abū l-Faraj Hārūn b. al-Faraj was a broad reader of the literature available in Arabic, in a variety of genres. Earlier studies have demonstrated that in his grammatical works on the Hebrew language, Hārūn adapted discussions from well-known compositions focused on Arabic and the Qurʾān. The following examination of Hārūn’s treatment of the subject of biblical majāz, non-literal language, aims to show that in constructing his sophisticated and innovative discussion of the topic, the (...) Karaite scholar read widely – and adapted creatively – incorporating the methods of a variety of genres in Arabic, including uṣūl al-naḥw, uṣūl al-fiqh and even iʿjāz al-Qurʾān and combining them together with earlier Jewish and Karaite scholarly tradition to produce what seems to be the first comprehensive discussion of non-literal language in Judeo-Arabic. (shrink)

Abrogation (naskh) is one of the controversial themes of Islamic studies, especially in later period that of principle of exegesis (uṣūl al-tafsīr). However, the recent studies on abrogation (naskh) do not offer a comprehensive analysis on the concept. In fact, the problem of naskh (abrogation) is in need of a systematic and holistic approach, which would only be possible with a detailed study on how the concept of abrogation (naskh) is understood in Islamic interpretive tradition (tafsīr). With this purpose (...) in mind, this article intends to examine two points regarding the term abrogation: first, the article will offer a analytical reflection on the diverse views of naskh, and then it will highlight how Ibn Kathīr (d. 1373) understood and applied this term to his hermeneutical framework. By doing so, the present study aims to show Ibn Kathīr’s position in Islamic interpretive tradition on the matter of naskh. The key conclusion of this study is that although Ibn Kathīr is one of the representatives of the traditional riwayah (sound transmission through a chain of exegetes) exegesis, he advances his interpretive hermeneutics with multiple aspects that also involves dirayah (personal opinion) exegesis (tafsīr). SUMMARY The problem of naskh (abrogation) is one of the most important and controversial themes of science and principle of exegesis (ʿilm wan a-l uṣūl al-tafsīr) in Islamic tradition. In order to understand naskh, which is claimed to be occurred in the Qur’ānic text, it is necessary to involve the time of the revelation of the Qur’ān. An analysis of this period reveals that first Muslims regard the naskh as a natural process of the revelation and do not dispute over this matter. In other words, the controversial theme naskh is perceived by first addresses of the Qur’ān as a hermeneutical characteristic of the Qur’ānic revelation. Therefore, naskh was not considered as a controversial concept and debated its origins based on the question whether it organically belonged to the revelation. It will be clear that the different views on naskh (abrogation), particularly after the time of the Companions is not a conceptual problem; rather Muslim scholars differed in their methodological approaches to naksh. Naskh has not been questioned as a concept in early Islamic tradition. Rather it has gradually developed over the centuries. Naskh has been elaborated with the terms of uṣūl al-fiqh (principles of Law), such as takhṣīṣ (specification) and taqyīd (restriction) and its conceptual meaning has been extended after, particularly Abū ʿAbdullah Muḥammad b. Idris b. ʿAbbas al-Shāfiʿī (d. 820). To sum up, naskh is regarded with a methodological perspective. However, in the field of Turkish Islamic studies, especially after the Cumhuriyet, the term naskh is not regarded as a natural consequence of the process of tanzīl (revelation of the Qur’ān) neglecting the gradual aspect of revelation and the disputes over the term has been concluded either rejecting or simply accepting this concept without providing a satisfactory result on the matter. This article examines one of the most prominent Muslim exegete Ibn Kathīr’s (d. 1373) approach to the problem of naskh in the context of previous modern scholarship on naskh (abrogation). However, the analysis of Ibn Kathīr’s perception of naskh does not claim to be exhaustive on the matter. This requires a more comprehensive study on the concept of naskh, which is clearly beyond the scope of this article. Therefore, the present study intends to specifically focus on general aspect of Ibn Kathīr’s understanding of naskh and how his perception is presented in modern studies. When Ibn Kathīr’s commentary is analysed, it becomes clear that his understanding of naskh is significant and not necessarily in line with his riwayah (sound transmission through a chain of exegetes) tafsīr (exegesis). For example, he notes the dates between abrogating and abrogated Qur’ānic verses and claims that it is necessary to find certain proofs to validate the claim of abrogation (naskh) for particular legal judgments and verses, which clearly shows that Ibn Kathīr approaches to the problem of naskh with a methodological perspective. Ibn Kathīr’s interpretation of the well known Qur’ānic verse Q 2.106 in a different sense and most importantly his consideration of the matter only in the Qur’ānic context are clear examples of his methodological approach. His interpretation of Q 2.106 simply shows that he meticulously distinguish between the acceptance of naskh as a concept and as an interpretive method. The modern studies on naskh, on the contrary, consider the matter only on the base of a conceptual analysis. Ibn Kathīr prefers to transmit the traditional opinions based on personal interpretation and interprets some Qur’ānic verses. This is clearly his method of re-interpretation based on rational thinking (taʾwīl). His way of rational reasoning leads Ibn Kathīr to the rejection of naskh (abrogation) and the restriction of Qur’ānic verses that are related to the theory of abrogating and abrogated verses (nāsikh-mansūkh). This clearly proves that Ibn Kathīr does not merely adopts and employs the method of riwayah, which is contrary to the supposition that he is the exegete of a commentary that heavily draws on hadith reports and transmitted traditional reports. In fact, this most importantly shows that Ibn Kathīr’s Qur’ān commentary can also be regarded as a dirayah (personal opinion) tafsīr (exegesis) and that there are enough material in traditional Muslim Qur’ānic exegesis to re-analyse the problem of naskh (abrogation). Relying on this last point, this article argues that a comprehensive analysis of naskh requires a research on the traditional interpretive sources. Therefore, it might be helpful to reconsider the matter of naskh with its conceptual background in the works of traditional Muslim exegetes rather than focusing only on whether the concept naskh exits or not in the origins of the Qur’ānic revelation. At this point, an analysis of Ibn Kathīr’s perception of naskh and his rational reasoning that is employed in his commentary will contribute to the understanding of the theory of naskh (abrogation) in the tradition of Qur’ānic exegesis. (shrink)

The issue of wiping over socks is part of the more general issue of wiping over leather socks (khuffayn) for ablution (wuḍū’). Washing feet or wiping over them is a debate whose sides bases their claims on the verses of the Qur’an and supports these claims with narrations. When performing ablution, if shoes or socks are on the feet, whether one can wipe over them without taking these off and the qualities that these clothes should have is a debate based (...) on hadith narrations. Most Muslims except for the Ja’farite are of the opinion that either washing the feet or wiping over a khuff or similar clothing that was put on while a person already had ablution can be done during ablution, while the Ja’farite think that wiping over bare feet is enough but wiping over khuff is not. There is a consensus that shoes, boots, buskins and other leather footwear qualify as khuff. However, there is disagreement over whether clothing from materials like cotton, linen, wool, and felt -usually referred to as socks- qualify as khuff. For this reason, some Muslims of the world wipe over socks while others do not. There are contemporary fatwas (legal opinion) that are supportive of either of the positions. However, there are those who treat this issue beyond choosing a side in an ijtihad (process of juristic legal reasoning) and some who wipe on socks are censured strongly. In this research based on an examination of the fiqh heritage, the goal is to contribute to making this issue better understood and its fiqh ruling clearer.Summary: The sixth verse of Surah Ma’idah in the Qur’an clearly states that wuḍū’ requires washing the face, arms up until elbows, and wiping over the head. However, when it comes to the fourth element of wuḍū’, the feet, there has been disagreement about whether it should be wiped or washed. Arabic grammar rules and narrations have been interpreted in ways that support both views; in general Sunni sects, Zaydis, and Kharijites argue the feet should be washed while Shia Ja’farites are in favor of wiping over bare feet. There have also been efforts among faqihs (jurists) to reconcile washing and wiping; washing slightly; choosing the better one between the two; washing when not covered, wiping when covered; washing if there is dirt, wiping if it is clean; viewing at least wiping as fard (obligatory), washing as a Sunna (recommended) that includes the fard as a way to unify the two approaches have also been proposed.According to widely accepted narrations, the prophet and his companions washed their feet when performing wuḍū’ and once they put on their shoes having had wuḍū’, the next time they only wiped over the shoes without taking them off. In less commonly accepted narrations, which some hadith authorities regard as authentic, the Prophet is said to have wiped over his socks. In narration sources, it has been narrated that about fifteen faqih companions, among them ʿUmar b. al-Khaṭṭāb, ʿAlī b. Abī Ṭālib, ʿAbdallāh Ibn Masʿūd, ʿAbdallāh b. ʿAbbās, ʿAbdallāh b. ʿUmar, saw wiping over socks as appropriate. However, there are no narrations about the companions disapproving of wiping over socks. Among those who approved of wiping over socks are tābiʿūn (successors) faqihs like Saʿīd b. D̲j̲ubayr, Saʿīd b. al-Musayyab, Ibrāhīm al-Nakhaʿī, ʿAṭāʾ b. Abī Rabāḥ, al-Ḥasan al-Baṣrī ve al-Aʿmash, and Mujtahid Imams like Zufar, Sufyan al-Thawri, al-Ḥasan b. Ṣāliḥ, Ibn al-Mubārak, Abū Yūsuf, Muḥammad al-Shaybānī, Aḥmad b. Ḥanbal, Isḥāq b. Rāhawayh. Considering their most prominent positions, we can say that Ḥanafis and Shafis allow wiping over socks that are thick and opaque, Hanbalis allow it over socks that cover the foot even if thin, while Mālikīs do not allow wiping over socks at all.As far as it is understood from narrations from the Prophet’s time, due to both climate conditions and weaving possibilities, socks were used only rarely. Also, footwear like shoes or slippers made of leather were very hard to find and narrations suggest that prayers were performed at houses and the masjids over soil base on either bare foot or with shoes. For these reasons, the issue of wiping over socks did not arise at the time and at later periods different opinions on the issue led to disagreements. When carpets were placed on the ground at later periods, performing the prayer with shoes was abandoned and a second layer of shoes (khuff) was placed inside the shoes as khuff. Since removing the shoes would invalidate wuḍū’ performed over that shoe, those who wanted to avoid the difficulty of having to wash their feet each time they needed wuḍū’ have instead wiped over this second layer once they put them on after performing wuḍū’.Ḥanafīs and Shāfiʿīs, who tend to approach the issue of wiping over socks with hesitation and make this conditional on some strict rules, emphasize that the socks to be wiped over should be similar to shoes in terms of thickness, based on the idea that it is certain that the Prophet has wiped over shoes made of leather but his wiping over socks is weaker and that the qualities of those socks are not clear. Among the thickness criteria expressed for the socks are being waterproof, the ability to walk for at least a league with it, and its ability to hold on to feet without being tied at the wrists. Due to these criteria, which have been developed to protect the wuḍū’ and whose boundaries are not well specified, especially among Ḥanafis the idea that wiping over socks is not allowed has gained popularity. As opposed to this, in circles dominated by Ḥanbalīs opinions allowing wiping over any type of socks have been expressed.At times when the Prophet had his shoes on and did not want to take off his shoes, he used to wipe over the shoes. The equivalent of this act today is to wipe over socks since prayer with shoes on is not common any more. While nowadays wiping over socks is an ease for everybody when performing wuḍū’, it is something that is especially needed under certain circumstances. Cold weather and the lack of drying possibilities for the feet leading catching cold and illness, socks that are put on when feet are wet leading to bad smell and fungus on feet, the hardship of elevating the feet high enough to the sink and of changing socks on one foot when there are no special wuḍū’ places, the fact that at societies distant from Islamic culture it is seen against the etiquette to wash feet in the sink are among the reasons why this need arises. Because most of the time we are not in a position to determine the circumstances of our work and travels at modern times, it can be said that today this need is more than it was in the past.Some scholars of today use a precautionary principle and argue that the Qur’an commands to wash the feet, and the only narration powerful enough to make an exception to this rule is about masts made of leather, and extending this to include socks would go against the precaution principle and some other principles of uṣūl al-fiqh (Islamic legal theory). However, some other scholars who use the ease in religion principle argue that the permission to wipe over masts also include wiping over socks and that they are of the same nature, that there are authentic narrations that show wiping over socks are allowed and that one can even talk of an ijmāʿ (consensus) among the companions on this issue, and that seeking additional qualities socks on which one is to wipe over, such as thickness, ability to walk with it, its ability to hold on to the feet, being waterproof, have no merit in the sharīʿa. Jamaleddīn Qāsimī, who wrote a special research book on the topic, and scholars like Abū l-Aʿlā Mawdūdī, Yūsuf al-Qaradāwī, ʿAbd al-ʿAzīz b. Bāz, Ibn al Uthaymeen think that one can wipe over daily socks that do not show the skin beneath it, while scholars predominantly of the Ḥanafi opinion hold that one cannot wipe over the thin daily socks. (shrink)

The legal-ethical dynamism in Islamic law which allows it to respond to the challenges of modernity is said to reside in the institution of ijtihād (independent legal thinking and hermeneutics). However, jurists like Mohsen Kadivar and Ayatollah Faḍlalla have argued that the “traditional ijtihād” paradigm has reached its limits of flexibility as it allows for only minor adaptations and lacks a rigorous methodology because of its reliance on vague and highly subjective juridical devices such as public welfare (maṣlaḥa), imperative necessity (...) (ḍarūra), emergency (iḍtirār), need (ḥāja), averting difficulty (‘usr) and distress (ḥaraj), hardship (mashaqqa), and harm (ḍarar) without interrogating the fundamentals (uṣūl) of ijtihād. In contrast, in the “foundational ijtihād” model theology, ethics, intellect, epistemology, linguistics, hermeneutics, modern sciences, history, cosmology, anthropology, and the sources of Islamic legal theory (uṣūl al-fiqh) interact with one another to obtain resolutions that are just and non-discriminatory. (shrink)

The law of responsibility (compensation), which was formed around the concept of the ḍamān and was developed by the scholars within the system of furû‘ al-fiqh (substantive law) over time, constitutes one of the important parts of Islamic law. Although compensation law (ḍamān) was not addressed as a private subject in the first period fiqh literature, it is seen that the literature on this specific area started to emerge after the early period. It is the Hanafi jurists who (...) first brought together these issues that are scattered in the classical books of fiqh that are related to the law of responsibility. Compensation law took its classical form in the texts of the early periods and was shaped around the views of the founding imams of the Ḥanafī school (madhab). It has later been expanded with the fatwā and interpretations of the Sheikhs (mesāikh) of Hanafi in the type of waqi'at works. These works were a product of the need for the law to adapt to the new conditions. These issues, which are related to the compensation law in the Hanafi school have been covered as a special section (chapter) in the studies that are classified as waqi'at, such as Usrūshanī’s al-Fuṣūl fī al-muʿāmalat (Fuṣūl al-Usrūshanī), ʿImād al-Dīn al-Marginānī’s Fuṣūl al-iḥkām fī uṣūl al-aḥkām and Shaykh Badr al-Dīn’s Jāmiʿal-Fuṣūlāyn. Later, the topics discussed in these works were developed and continued, and ultimately separate works related to this field have been copyrighted. In this study, the kinds of development and expansion which are in the literature and related subjects will be discussed by examining the above-mentioned works. Therefore; first of all, the first examples of Hanafi jurists related the compensation will be analysed comparatively. Afterwards, the place of ad-Ḍamānāt fī al-furūʻ al-Ḥanafīyyah of Fuḍayl Chalābī (d. 991/1583), one of the Zenbillizade’s, will be addressed.Summary: The core idea of the law of responsibility, which constitutes one of the important parts of Islamic law, was stated in the Qur'an and Hadith, and then have accumulated by the contributions of the jurists (fuqaha), as they developed the idea of the law of responsibility within the furû‘ al-fiqh in relation to the systematic of the legal school (madhab) that they belonged to.These issues, which constitute one of the important parts of the law, were addressed by sprinkling among the topics in almost every part of classical fiqh books. In other words, the subject of ḍamān (responsibility) was not considered as a separate subject in the fiqh works of the first period. In this way, it is seen that the literature on compensation law started to emerge in the following periods, and at first several independent sections on this subject, and then separate works specific to this field, albeit limited in number, were written.It is the Ḥanafī jurists who first brought together these issues that are scattered in the classical fiqh books related to the law of responsibility. Compensation law, which took its classical form in the texts from early periods, shaped around the views of the pioneering imams of the Ḥanafī school, has been expanded with the fatwā and interpretations of the Sheikhs (mesāikh) of Ḥanafī in the waqi'at works, which is a product of the need for the law to adapt to new conditions. Firstly, one of the Ḥanafī jurists, Majd al-Dīn al-Usrūshanī (d. 637/1240) dealt with the responsibilities arising from the contract and unfair acts in the 29th section of his book named al-Fuṣūl fī al-muʿāmalat under the title “Types of Compensation Required to be Paid and Their Situation”. The method and system that Usrūshanī started in this work, the Ḥanafī jurisits ʿImād al-Dīn al-Marginānī in the Fuṣūl al-iḥkām fī uṣūl al-aḥkām and Shaykh Badr al-Dīn Ibn Qāḍī Samāwnā in the Jāmiʿ al-Fuṣūlāyn continued to develop the compensation section in their books. Afterwards Fuḍayl Chalābī (d. 991/1583), one of the members of Zenbillizade’s family, enriched these issues and made it an individual work, named ad-Ḍamānāt fī al-furūʻ al-Ḥanafīyyah. Marginānī titled the issues that Usrūshanī had handled in the compensation section and systemised it even more by gathering the fatwās on the related issues under one heading. It is noteworthy to mention that when the compensation sections of both works are compared, the way the subjects handled are exactly the same. But unlike Usrūshanī, Marginānī added the compensation for damages to the fetus in the womb and the responsibility of the person who brought back the fleeing slave at the end of the chapter. On the other hand, unlike them, Shaykh Badr al-Dīn added only the responsibility of the person who found the lost item. Considering that almost all of the topics in the compensation section of Sheikh Badr al-Dīn existed exactly in the compensation section of Marginānī, and that most of them were stated in Usrūshanī’s al-Fuṣūl, it is necessary to say that all of these discussions are based on Usrūshanī as the main backbone of this particular subject and that his work has a unique place in the Islamic legal literature. Chalābī’s ad-Ḍamānāt, is the first work that was written as a separate book in the field of compensation law. Even though in some modern works claim that the work Ghānim al-Baghdādī’s (d. 1030/1620) book named Majma‘ al-ḍamānāt fī madhhab al-Imām al-A'zam Abī Ḥanīfa al-Nu'mān was the first written book in this field; it is known that Chalābī's ad-Ḍamānāt had been written before Baghdādī’s Majma‘ al-ḍamānāt. As a matter of fact, the work of Chalābī had been completed in 984 Hijra, and the Baghdādī’s Majma‘ al-ḍamānāt was completed in 1027 Hijra. Although the subject sequence in Baghdādī’s work is different; this work is regarded as a continuation of the same tradition.An examination of the systematic and the content of the work reveals that Chalabi’s ad-Ḍamānāt is the continuation of the type of writing that Usrūshanī started and developed by Marginānī and Shaykh Badr al-Dīn. When compared with the compensation sections of these works before him, Chalābī has added new compensation issues to his book that are not addressed in these three works; such as partnership, mudaraba, suretyship (kafāla) transfer (ḥawāla), peace, legal disability (hajr), freedom of trade (idhn) and testament. Among the works mentioned above, works out of Shaykh Badr al-Dīn’s Jāmiʿ al-Fuṣūlāyn and Baghdādī’s Majma‘ al-ḍamānāt are available as manuscripts in the libraries. Therefore, these works have not been used much in modern studies on compensation. In addition, the Chalābī's ad-Ḍamānāt is almost unknown. Although there is little information about this work in some bibliographic studies, it is noteworthy to state that this work is not used as a source in contemporary studies written in Arabic on compensation law. The fact that this work is available as manuscripts in Istanbul libraries is probably the reason for this outcome. It is also very difficult to say that this work is known and used sufficiently in studies written in Turkish.Usrūshanī’s al-Fuṣūl fī al-muʿāmalat and Marginānī’s Fuṣūl al-iḥkām are currently in the form of manuscripts, so there is no comprehensive study on the whole work and the compensation section. It is possible to see the compensation issues discussed in the work, since Shaykh Badr al-Dīn’s Jāmiʿ al-Fuṣūlāyn, which has been published as printed, was translated into Turkish by an editorial group under the presidency of H. Yunus Apaydın. In addition, Kemal Yıldız, who translated the compensation section in this translation, published this section in Jāmiʿal-Fuṣūlāyn as a separate book with the name of “Sources of the Jāmiʿ al-Fuṣūlāyn and Compensation in the Practice of Ḥanafī School”. Yıldız, first introduced the sources of the Jāmiʿ al-Fuṣūlāyn in the first part of this work and then translated the compensation section from beginning to end by adding his own explanations and evaluations around the subject during the second part. Even though some introductory information about the books of Usrūshanī and Marginānī is presented in Yıldız’s study, the absence of information on the contents of the compensation sections of these books does not allow the opportunity for the researchers to evaluate on the subject wholly. (shrink)

The early period Ismaili jurist Al-Qādî al-Nu'mān appears as an important figure in the formation of Ismaili jurisprudence. There is very little information about Kadı Nu'mân's family, childhood, education and intellectual environment. His full name is Abû Hanîfah Nu'man b. Muhammad b. Mansûr al-Qādî at-Tamîmî Al Qayrawānî. He was born around 290/903 (late 3rd (9th) century) into an educated family in Qayravan in North Africa. There are different opinions about the sect he belonged to when he was growing up. On (...) the other hand, it is difficult to say for certain whether Nu’mān received education in the Ismaili sect due to the understanding of taqiyya in the madhhab. However, it is understood from the basic jurisprudence texts Nu’mān wrote that he most likely did not receive a Sunni education. Historians refer to him as 'Qadi Nu’mān or Abu Hanifah al-Shi'i' in order not to confuse him with the imam of the Hanafi school. Qādî Nu’mān served at different levels of the Fatimid State. Around 313/925, he entered the service of the first Fatimid caliph, Mahdi (r. 909-934 CE/297-322 AH), as a copyist and secretary. During the reigns of the third caliph Mansur and the fourth Fatimid caliph Mu’izz (d. 365/975), Qādî Nu’mān first served as a judge in Tripoli and then in Mansouriya, the Fatimid capital. After the Fatimids conquered Egypt and the center of government was moved to Cairo, Qādî Nu’mān was appointed by the fourth caliph Mu’izz as the head of the appellate courts (maẓālim). Qadi Numans career was at the peak in the period of Caliph Muiz. Qādî Nu’mān worked as a judge in the Fatimid State for about twenty-six years and continued this duty until his death in 363 (973). After the fall of the Fatimid caliphate, there haven’t been any other Fatimid or Ismaili jurists. Qādî Nu’mān is considered by contemporary Ismaili writers as a figure who systematically transformed Ismaili fiqh into an independent sect of fiqh. It can be said that Ismaili fiqh was developed through his works in the Fatimid period. His works continued as the main references in the fiqh studies and after the Fatimid period. With the death of Qādî Nu’mān, the period of ijtihad in Ismaili fiqh and its the establishment phase of Ismaili fiqh came to an end; The sect, in which esoteric interpretations were at the forefront, emerged as a distinctive school of fiqh by discarding ambiguity. Qādî Nu’mān was a very productive writer. He wrote important works related to the field of furu al-fiqh and usûl al-fiqh. Among his works, Ikhtilāf uṣūl al-madhāhib is undoubtedly one of the most important works in the early history of fiqh methodology. The work in question, which was originally written with the aim of rejecting the Sunni fiqh method, discusses the approaches of the Sunni schools of fiqh on ikhtilāf, taqlid, ijma, nazar, qiyas, istihsan, ijtihad and ra’y in a polemical manner. It reveals the differences of the Ismaili method from the Sunni method in terms of the sources on which the fiqh is based, the authority to make ijtihad and the theory of interpretation of the texts. Qādî Nu’mān examined the relationship between reason and revelation in general and the role of religious authority in comprehending and interpreting the texts while criticizing Sunni methods. Ikhtilāf uṣūl al-madhāhib has the characteristics of the works of development period as a form. It is possible to observe the question-answer and dialectic form which can be seen in the works of the development period throughout the work in question. Qādî Nu’mān endeavoured to persuade his opponents with a dialectical and argumentative style. Again, he replied to the Sunnis, who were his interlocutors, with their own proofs. In addition to these, Ikhtilāf uṣūl al-madhāhib has a unique feature in the matter of content. Because it is not very familiar to any Sunni handbook of usûl al-fiqh. It does not mention the hâss, âmm, ijma, qiyas, amir, nahy, alfaz bets, etc. The text is very similar to the Ahbari movement of the Jafari sect for it rejects all forms of ijtihad. It was written at a time when fiqh was not yet stable. Ikhtilāf uṣūl al-madhāhib gives us crucial information about the development of different usûl and fiqh sources in the middle of the fourth century. However, what is interesting here is that the information he gives about Ismaili method and fiqh is very little compared to the one about Sunni method and fiqh. Much of it centered on Sunni thought and its rejection. However, his ultimate goal was to defend the Ismaili doctrine. (shrink)

In this study, the classification of Zaydī fuqahā’ that emerged in the mutaaḫḫirūn period of Zaydī fiqh and related terms are examined. The book named Bulūgh al-arab wa-kunūz al-dhahab fī-maʿrifat al-madhhab, which has great importance among the studies aiming to present the Zaydī fiqh accumulation as a uniform doctrinal structure was taken as a basis in the processing of the subject. After an introduction in which Zaydī fiqh studies are evaluated in their relationship with the subject, the (...) issue is handled under three main headings. In the first title, the author and his work are introduced, and in the second and third titles, the methods and terms used in the classification of the Zaydī fukahâ are examined. The author of the work is ʿAlī b. ʿAbd Allāh al-Shaharī (d. 1190/1776) who lived during the period of the Qāsimī dynasty (al-dawla al-Qāsimiyya) in Yemen. The most important feature of the work, which was prepared using many sources that were attributed importance among the Zaydī literature, is that it was the most comprehensive of all that had written on madhhab doctrine until then. The first part of the work explains that the right madhhab to be followed is Zaydiyya. In the second part, the classes of the Zaydī fuqahā’, which is the subject of our study, are explained. The fuqahā’ classes are primarily divided into two parts: al-salaf al-ṣāliḥīn and al-ḫalaf al-ṣāliḥīn. The first dates back to the beginning of the 3rd/10th century. This class is divided into two parts, as al-sābiqūn and al-mutaaḫḫirūn. The sābiqūn starts with ʿAlī b. Abī Ṭālib, his two sons al-Ḥasan and Ḥusayn and ends with the sons of twelve imams who are their descendants. Zayd b. ʿAlī (d. 122/740) is one of the twelve imams. The most important of the faqīhs in the part of mutaaḫḫirūn, which started with al-Qāsim b. Ibrāhīm al-Rassī (d. 246/860), are the six imams called ahl-al-nuṣūṣ or aʾimma al-nuṣūṣ. The reason why they are named as such is that their words were taken as a basis in determining the views of the sect on the field of uṣūl and furūʿ l-fiqh. al-Qāsim al-Rassī is at a point where all the knowledge of the Prophet's family and the principles agreed upon by sābiqūn, reach him through many channels. al-Hādī Yaḥyā b. al-Ḥusayn (d. 298/911), grandson of al-Qāsim, is the most important imam in terms of his position in the madhhab. The ḫalaf al-ṣāliḥīn is also divided into two parts as ahl l-taḥṣīl and ahl l-naẓar. The first part also referred to as muḥaṣṣilūn or aʾimma al-taḥṣīl, has no subcategories. The second part is divided into two sub-sections as ahl l-taqrīr and mudhākirūn. The muḥaṣṣilūn class starts with those who catch up with the last class of ahl al-nuṣūṣ and ends with ʿAbd Allāh b. Ḥamza (d. 614/1217), one of the three important imams. Two other important imams of muḥaṣṣilūn are Aḥmad b. al-Huṣayn (d. 411/1020) and his brother Yahyā b. al-Husayn (d. 424/1032). It is the fiqh activity of the jurists of this class, called taḥṣīl l-madhhab, that brought Zaydī fiqh, which was fiqh of imams (madhāhib l-aʾimma) in its first period, into a single madhhab and to its classical form in the last period. Mudhākirūn jurists lived at the same time as the ahl-t-taqrīr. This period is about 700 years from the beginning of the 6th/12th century, which is the last century of the muḥaṣṣilūn class, to the end of the 12th/18th century, when Shaharī lived. The roles of the ahl al-taqrīr in the madhhab mostly consist of reviewing the works of the ahl-l tahṣīl, approving the correct ones, and correcting the wrong ones. That's why they are so named. The author of Kitāb l-Azhār, Aḥmad b. Yaḥyā l-Murtaḍā (d. 840/1437), is one of the prominent jurists among the ahl l-taqrīr. The majority of Zaydi fuqahā’ belong to the muẕākirūn class. These are the lowest class of the ahl-al-naẓar. As an important result reached in the study, it is possible to express the following: There is a difference between some of the knowledge and opinions in modern Zaydī studies, which include the same subject as Shaharī's work, in terms of the classification of Zaydī fuqahā’ and the terms used. Therefore, the findings and conclusions based on this work should be confirmed by new studies on other Zaydī classics, and existing opinions on Zaydī jurisprudence should be reviewed. (shrink)

Māzarī al-Tamimī (d. 536/1141) was one of the last jurists who lived in North Africa before the fall of al-Andalus. He is the author of Izāḥ al-Mahsūl, which is considered to be an important turning point in the formation of the uṣūl al-fiqh structure of Mālikī jurisprudence. The lack of studies on the uṣūl al-fiqh of al-Māzarī, who had considerable knowledge in the fields of ḥadīth, fiqh, theology, medicine, and fatwā, made this study necessary. This (...) study examines al-Māzarī's understanding of uṣūl through his work Izāḥ al-Mahsūl in the field of uṣūl al-fiqh. Izāḥ al-Mahsūl is al-Māzarī's commentary on the Shāfiʿī scholar al-Juwaynī's (d. 478/1085) al-Burhan fi uṣūl al-fiqh on uṣūl al-fiqh. The commentary on al-Juwaynī's al-Burhān is one of the fundamental texts of Shāfiʿī usūl al-fiqh. In his commentary on this important work, al-Māzarī followed his teacher al-Juwaynī's subject classification and systematization and applied the method of the mutakallim in writing uṣūl al-fiqh. Although it bears similarities with his teacher's work, this commentary, even in its incomplete form, is an independent work with the opinions and evaluations it includes. Al-Māzarī did not hesitate to oppose his teacher in the work and put forward his own method of ijtihād. Izāḥ al-Mahsūl, which is the subject of this study, is an important example of the influence of Shāfiʿī uṣūl al-fiqh on Mālikī uṣūl al-fiqh in terms of method and content. With this work, the Mālikī uṣūl al-fiqh literature and texts were modelled after Izāḥ al-Mahsūl. This work, which was a source for post-Māzarī Mālikī jurists, is also the subject of this study because it contains the traces of the Shāfiʿī-Mālikī interaction in Islamic jurisprudence. Within the scope of the study, the principles that stand out in al-Māzari's understanding of uṣūl al-fiqh in his work Izāḥ al-Mahsūl were tried to be identified. In this way, it is aimed to reveal on which issues the Mālikī uṣūl al-fiqh is based. It is impossible for al-Māzarī's understanding of uṣūl al-fiqh cannot to be influenced by the intellectual and political environment in which he grew up. With this in mind, we have tried to briefly touch upon al-Māzarī's life, his teachers, his works, and the intellectual and political atmosphere of the Maghreb region during his lifetime. We have tried to understand the impact of all the details of his life on al-Māzarī's scholarly life and his uṣūlism in particular. In addition, determining the prominent elements of al-Māzarī's understanding of uṣūl is also important in terms of understanding the jurisprudential structure in the Maghreb region and illuminating the region in terms of Islamic legal history. This study aims to present al-Māzarī's understanding of uṣūl in terms of its basic features. Thus, it aims to shed light on al-Māzarī's contribution to the Mālikī understanding of uṣūl al-fiqh and its literature. The document analysis method, one of the qualitative research methods, was used in the study. In this context, the textual analysis was applied by comparing al-Māzarī's views with those of his teacher al-Juwaynī, by whom he was influenced. (shrink)

The third century of the hegira represents an extremely important period in terms of the formation process of Islamic sciences and the acquirement of the identity of a systematic school of fiqh madhhabs. In terms of the Zaydiyya madhhab, this century has an identity that affects the next period in terms of both political and scientific studies. Because in this period, the scholars of the madhhab like Kāsim al-Rassî (d. 246/860), Ahmad b. Isā (d. 247/861) and Yahyā b. al-Husayn (...) (d. 298/911), who were in a leading position both in politics and in sciences such as kalām, hadith and fiqh, emerged. Kāsim al-Rassî, who was accepted as the star of the Ahl al-Bayt by Zaydî sources in the first period, was presented as the Plato of Muslims by orientalists in modern studies. The main reason why today's studies on him are mostly about the history of sects and theology, most of Rassî's works are about kalām. However, Kāsim al-Rassî is an important name in the science of fiqh and İslamic legal theory as well as in the science of kalām. According to Abī Tālib Nātik bi’l-Hakk (d. 424/1033), one of the important jurists of the Zaydiyya madhhab, Rassî was a scholar who came to the fore with his ability in fiqh issues; in order to see his ijtihād method, his skill in furû al-fiqh, his mastery in using hadiths and knowing the disagreements of scholars, ‘‘Masā’il al-Dja’far b. Muhammad and Abd Allah b. Hasan” should be consulted. Rassi's epistles named Kitab al-Nāsikh wa’l-Mansūkh, Kitab al-tahāra, Kitab al-salāt al-yevm ve al-Laylā and Kitab al-menāsik are important studies on fiqh that have survived to the present day. In addition, Mueyyed-Billah (d. 411/1021) compiled Kāsim al-Rassî’s and Yahya b. al-Husayn's views on fiqh in his work named al-Tecrîd. Kāsim al-Rassî's views on fiqh are also determinative in later fiqh books such as Tahrîr, al-Cāmi' al-Kāfi, al-Intisār and al-Azhar. In time, the emergence of a jurisprudence sect named Kāsimiyya in Zaydiyya, referring to his name, is also important in terms of revealing his position. Although Rassî's views on fiqh have been referred to a number of studies in our country, no independent study has been found that deals with his views on fiqh. However, considering both of his works on fiqh that have survived to the present day and the early works in which his views are compiled, it is obvious that Kāsim al-Rassî's views on fiqh deserve an independent works. The aim of this study is to reveal Ressî's position within the madhhabs and his perspective on fiqh in general. In this context, in the study, the period in which Ressî lived, his life and works were briefly mentioned, and then the basic views of the fiqh, especially in the field of worship, were discussed in outline. (shrink)

Aḥmad al-Chārpardī (d. 746/1346), Shāfi‘ī jurist, was one of the scholars of the period of mutakkhkhirīn. He dedicated his life to teaching students and composing works, settling in Tabriz where he remained for the rest of his life. Recognised as one of the most distinguished students of al-Qāḍī Batḍāwī (d. 685/1286), al-Chārpardī wrote a commentary on al-Bayḍāwī’s concise work on uṣūl al-fiqh entitled Minhāj al-wuṣūl, which he called al-Sirāj al-wahhāj. One of the fundamental characteristics of uṣūl al- (...) class='Hi'>fiqh of the mutaakhkhrīn period is the structuring of issues and evidence using the terminology of theology, logic, dialectics and disputation. Based on the systematic approach of al-Bayḍāwī’s work and the understanding of uṣūl al-fiqh of his time, al-Chārpardī discusses the issues and evidence that al-Bayḍawī succinctly addressed. The aim of the study is to determine Chārpardī’s methodology in jurisprudential thought, the scholars who influenced him, and the method he employed in jurisprudential debates by focusing on the evidence that falls outside the unanimously agreed upon evidence, which includes the Qur’ān, Sunna, ijmā‘, qiyās and is subject to debate as to its validity. The limited number of studies on al-Chārpardī in Türkiye, such as those found in the TDV İslam Ansiklopedisi and the İslam Düşünce Atlası, this study is seen as contributing to an increase in research focusing on Chārpardī’s jurisprudential thought. (shrink)

Along with the legal opinions, the juristic proofs presented to underpin these legal opinions also occupy an important place in uṣūl al-fiqh. Thus, scholars of uṣūl al-fiqh strived to propound the proofs indicating the relevant theoretical principles in an apparent and definite way. As a result, the disputed and undisputed proofs ranked among al-adilla al-shar‘iyya have been abundantly addressed in the classical uṣūl al-fiqh works. However, although it is not mentioned as a part of (...) legal sources in the uṣul literature, there has been another proof subjected to legal reasoning (istidlāl): the practice of the companions. In this study, “the practices of the companions” is used in the contextual meaing of the verbal and practical positions of the entire companions or some of them on a specific topic of uṣūl al-fiqh. By this definition, the concept of the practice of the companions is separated from the concepts of qawl al-ṣaḥābī, ʿamal ahl al-Madīnah and the ijmāʿ al-ṣaḥābah. As a matter of fact, the concept of qawl al-ṣaḥābī signifies an opinion narrated from a single companion and neither supported nor opposed by other companions, and subjected to use of legal inference for obtaining practical legal rulings. In return, the concept of the practice of the companions signifies the position that the companions hold on a topic of uṣūl al-fiqh and does not stipulate the conditions that it must be an opinion of a single companion and be neither supported nor opposed by other companions. In addition, as being related to the legal theoretical issues and not restricted to a certain region, the concept of the practice of the companions is distinct from the ‘amal ahl al-Madīnah. Likewise, it also differed from the ijmāʿ al-ṣaḥābah because the latter concept indicates the consensus of all companions on a practical legal ruling whereas the practice of the companions amounts to both the consensus of the companions and their individual opinions on the matters of uṣūl al-fiqh. Having said that, the concept of the practice of the companions has some overlaps with the qawl al-ṣaḥābī and ijmāʿ al-ṣaḥābah. It is observed in the Hanafi tradition of uṣūl al-fiqh that the practices of the companions are presented as a proof of many principles of uṣūl al-fiqh. This is because of the fact that the companions have a significant role as being the first practitioners of the revelation and the leading figures of the tradition of fiqh. Due to these significant roles of the companions, a central position is given to their interpretation method of the divine text and the technique of issuing legal opinions in determination of theoretical principles. In this study, I examine the impact of the practices of the companions on the Hanafi legal theory focusing on the work of al-Sarakhsī (d. 483/1090), al-Uṣūl, and try to identify how Hanafi legal theory was grounded, departing from, overall or particular, companions’ practices. This study consists of two main parts. First, I provide the conceptual framework by analyzing the concepts of the companion and the companions’ practice. Second, I discussed the theoretical issues rested evidentially on the companions’ practice. Hence, this study excludes the instances of qawl al-ṣaḥābī, ijmāʿ al-ṣaḥābah and the companions’ practice if they are not resorted in proving the uṣūl al-fiqh principles. This work deals with issues on which theoretical principles grounded in reference to the practice of the companions under the headings; Kitāb, Sunnah, qıyās, naskh and alfāz. When instances of the companions’ practice are in abundance in a case, I just focus on the highly representative ones and shortly refer to the others. In the conclusion part, I provide the consequences achieved by this research and some final remarks on the topic. (shrink)

Kin marriages have been a subject of literary, historical, sociological, religious, and medical studies from past to present. Such a marriage has been discussed within the science of fiqh in terms of religion. Ḥanafī and Mālikī mujtahids stated that this marriage is permissible. While Shāfiʿī and Ḥanbalī mujtahids did not recommend kin marriage by seeing it permissible. Based on the fundamental doctrines of Islamic law, they argued that marrying a foreign candidate is mustahabb and answered the related criticisms against (...) their fatwa. In scientific studies, genetic risks in kin marriages were found to be twice as high. Therefore, the kin marriage was not recommended and it is suggested that those who will marry with relatives should undergo carrier tests. In some contemporary religious studies, it has been argued that the families established by kin marriages are stronger, the genetic research does not have absolute precision, and it may be ideological in the form of weakening the family-society structure. Besides, the ijtihads distant to close kin marriage is weak in terms of evidence and opposing evidence has been put forward to defend kin marriage. On the other hand, in some sociological studies, it has been argued that kin marriage is predominantly caused by religion and that it wekaned the social solidairty. This study analyzes the classical and contemporary approaches to kin marriage in detail within the framework of thesis-antithesis in terms of fiqh, uṣūl al-fiqh, and evidence, and evaluates such studies from a fiqh point of view by including medical research results and some sociological studies on kin marriage. A generally accepted deterministic link cannot be established between kin marriage and genetic disorders. Because, the same risks are found in marriages with foreigners and also arise from harmful substance addiction. However, the genetic risk rate in marriage with close relatives is twice that of marriage with a foreign candidate. The least of the two possible losses is preferred. So it is very sensible that a marriage that is twice as likely to take such a risk should not be recommended by religion. Because, the main purpose of religion in marriage is to protect the generation and ensure its continuation. The fact that such a marriage is not religiously prohibited does not mean that it was recommended. Because it is left to individuals and public authority to limit the ibaha on the grounds of maṣlaḥa. On the grounds that the hereditary risk rate is high, kin marriage is not recommended in the fiqh and an effort has been made to prevent such a marriage from becoming widespread. Sociologically, marriages with a foreign candidate who is equivalent to a close relative are more appropriate in terms of strengthening the social organization. It is seen that Shafi'i and Hanbali ijtihad, which do not recommend close relatives marriage, are supported by current medical and genetic research. It is understood that the ijtihads that does not recommend marriage with close relatives is inaccurate in terms of evidence, and the views that argue that such marriages are stronger in terms of benefits are not in place. In general, it is seen that religion is distant from kin marriage, and such marriages are mostly caused by psychological, sociological, and cultural reasons. The fact that such marriages are common in areas belonging to the Shāfiʿī and Ḥanbalī schools that do not recommend marriage with close relatives, on the other hand, the fact that marriages between close relatives are less in Hanafi regions, which state that the same marriage is only permissible, supports this. In this respect, some claims arguing that such a marriage stems from religion based on the understandings that refer to that kin marriage is recommended by religion, are not accurate. For this reason, it is difficult to establish a connection between the disintegration of social unity, the spread of hereditary diseases, and the claims that religion recommends consanguineous marriage. Today, enlightening the religious aspect of kin marriage will be beneficial in protecting society against hereditary risks. (shrink)

Al-Qāḍī Ḥusayn al-Marwarrūdhī is one of the important representatives of Khurāsān Shāfi‘ī School. Al-Ta‘līḳa is his famous work, which is one of the first commentaries of al-Muzanī’s Mukḫtaṣar. One of the important features of this work is the introduction to some of the subjects of ijtihād (process of juristic legal reasoning), taqlīd (acting upon the word of another without asking for specific proof), ijmā‘ (consensus of jurists) and view’s of the companions of the Prophet. The first systematic, complete and detailed (...) works of uṣūl al-fiqh (Islamic legal theory) that belonged to the Khurāsān Shāfi‘ī School have reached to the present day belong to the second half of the V./XI. century. Making research on the studies which were done about uṣūl al-fiqh and formed the basis of this period is essential to follow the development of uṣūl al-fiqh of the Khurāsān Shāfi‘ī School. Transfer of the uṣūl al-fiqh in al-Qāḍī Ḥusayn al-Marwarrūdhī’s al-Ta‘līḳa make it possible to determine the literatüre, which was formed in Khurāsān region in the period from the death of Shāfi‘ī to the first half of the V./XI. century until the first half of the Khurāsān region, which allows the determination of the uṣūl al-fiqh. In this study, on the basis of ijmā‘, al-Qāḍî Ḥusayn al-Marwarrūdhī’s method in al-Ta‘līḳa will be examined.Summary: Al-Qāḍī Ḥusayn al-Marwarrūdhī is considered to be one of the most important representatives of the Khurāsān Shāfi‘ī School. In addition to receiving fiqh education from al-Qaffāl al-Marwazī, who is accepted as the founder of the Khurāsān Shāfi‘ī School in Shāfiʿī fiqh circles. Al-Qāḍī Ḥusayn, one of the most distinguished students of al-Qaffāl al-Marwazī, has become one of the important bearers of the fiqh heritage of Khurāsān Shāfi‘ī School. The fact that the epithet “el-kāḍî” is used in the works of Khurāsān Shāfi‘ī School to absolutely refer to al-Qāḍî Ḥusayn, is another issue that shows his being authority on fiqh. Al-Qāḍī Ḥusayn al-Marwarrūdhī has accomplished many works in the field of fiqh. The most famous and most important work of al-Qāḍī Ḥusayn is the al-Ta‘lîḳa, written according to the Mukḫtaṣar arrangement style of al-Muzanī. He is often cited as the author of the well-known work al-Ta‘lîḳa in the sect. Al-Ta‘lîḳa, commonly cited in fiqh studies to refer to the views of al-Qāḍī Ḥusayn, is one of the first commentary on Mukḫtaṣar by Muzanī. With these characteristics, al-Ta‘lîḳa is one of the outstanding manuscripts for exploring the fiqh legacy of the Khurāsān Shāfi‘ī School. Another important feature of this text is that uṣūl al-fiqh issues such as ijtihād, taqlīd, ijmā‘ and view’s of the companions of the Prophet (qawl al-ṣaḥābah) have been covered in the introduction of the work. Al-Qāḍī Ḥusayn discusses the issues of evidentiality and types of ijmā‘ and ijmā‘ of ṣaḥābah in the chapter on ijmā‘ in al-Ta‘lîḳa. Al-Qāḍī Ḥusayn also handles the debates on view’s of the companions of the Prophet in the section on ijmā‘ of ṣaḥābah. It is also seen that the proofs proposed for evidentiality of ijmā since Shāfiʿī’s period became more versatile and differed. The fact that the arguments al-Qāḍī Ḥusayn cites in the chapter of the evidences of ijmā‘ were also mentioned by his contemporary, al-Māwardī, an Iraqi Shāfiʿī jurist, points out the accumulation of knowledge in terms of proofs of ijmā. Al-Qāḍī Ḥusayn makes two related distinctions that are fundamentally related to the types of ijmā. The first is the division between ijmā supporters, those who argue for knowability of ijmā, and their opponents. According to this, ijmā is divided into two parts as ‘āmm (general public) ijmā‘ and khāṣṣ (scholars) ijmā‘. Opposition to ‘āmm ijmā‘, such as fardhs (obligations) in prayer, rawātib sunnah (the practice that the Prophet regularly performed) and feast prayer requires kufr (blasphemy). Al-Qāḍî Ḥusayn, who considers issues such as ‘awl (a sharing method in Islamic inheritance law), mut‘a marriage (a type of temporary marriage) and riba’l-faḍl (interest in exchange or sale transactions) which are seen as controversial ijmā‘ issues in literature, as khāṣṣ ijmā‘ and evaluates opposition to this type of ijmā‘ as fisq (impiety). The second division al-Qāḍī Ḥusayn makes is between ijmā‘ based on the text and apparent comparison, and the ijmā‘ based on hidden comparison. Al-Qāḍī Ḥusayn thinks that the opposition to ijmā‘ that is based on ijtihād or the text in terms of sanad (chain of narrators), requires blasphemy. In a sense, this is to accept ijmā‘ as a provision on an equal basis and to reduce the distinctions of ijmā‘ to literary level. Al-Qāḍī Ḥusayn also discusses evidentiality of qawl al-ṣaḥābah in connection with the issues of ijmā‘. Al-Qāḍī Ḥusayn opposes the thesis that ijmā‘ is only limited to companions’ era and argues that it can be realized in any century after the Prophet. Al-Qāḍī Ḥusayn, who discusses ṣaḥābah’s ijmā‘ under two categories: the views of ṣaḥābah that have gained prevalence among other ṣaḥābahs and those that have not gained prevalence among other companions, argues for evidentiality of qawl al-ṣaḥābah, which have gained prevalence and known not to be opposed. He provides significant information on ijmā‘ discussion in Shāfi‘ī fiqh methods with regard to the evidentiality of this type of qawl al-ṣaḥābah, which is referred ijmā‘ al-suqūtī (consensus based on lack of opposition-silence). The knowledge al-Qāḍī Ḥusayn cites with regard to the evidentiality of qawl al-ṣaḥābah which have not gained prevalence among other ṣaḥābahs differs from Māwardī, one of his contemporary, and his predecessors. The fact that he cites Shāfi‘ī’s previous and latest views with regard to the state of such qawl al-ṣaḥābah in the face of qiyās (legal analogy) enables him to make comparison using uṣūl material available in his era. Al-Qāḍī Ḥusayn, who mentions debatable issues among ṣaḥābah, makes controversial narrations. While al-Qāḍī Ḥusayn reports that there is not any conflict on the argument that it is legitimate to express a third view with regard to issues on which ṣaḥābah is divided in two groups and fall into conflict, his contemporary al-Māwardī and other Shāfi‘ī jurists report that it is not legitimate to propose a third view on such an issue as there is ijmā‘ on these issues. (shrink)

Muhammad Arsyad Al-Banjari who lived from 1710 to 1812 in Borneo, Indonesia, applied a model of integrating uses of the Banjarese tradition into Islamic Jurisprudence based on a dialectical constitution of qiyās, the legal argumentation theory for parallel reasoning and analogy, he learned from the Shāfi‘ī-school of jurisprudence (uṣūl al-fiqh). Our paper focuses in the model of integration proposed and practiced by Al-Banjari, a rational debate grounded on a dynamic view on legal systems. We will illustrate the method (...) with the help of two different kinds of qiyās deployed by Al-Banjari in order to argue for the rejection of some traditional Banjarese offering-rituals for avoiding disease or calamities (manyanggar and mambuang pasilih), and for the acceptance of the use of consuming the traditional drink called lahang made of the juice of sugar-palm. As our dialogical reconstruction shows, the development of the debates, particularly the first one, is quite sophisticated, with a Banjarese opponent that does not surrender easily to the rejection of his use of those rituals. (shrink)

Al-Shāfi’ī has been unreservedly credited as one of the designers, if not the “master architect,” of uṣūl al-fiqh. His most important scholarly work, Al-Risālah, clearly demonstrates his cognitive creativity in this field. One of the methodologies for the decision of cases under Islamic law that Al-Shāfi’ī championed is qiyās, which he equated with ijtihād. His balanced approach invites further enquiry into the extensive use of qiyās in general and in criminal law in particular. The extent to which qiyās (...) can be applied to Islamic criminal law depends upon the degree or typology of qiyās being used, taking into account the Islamic theory of criminology. This article will analyse the position of al-Shāfi’ī in this regard. It will critically examine al-Shāfi’ī’s complex views on the use of qiyās as a method for establishing culpability under Islamic criminal law. It will then explore how his position corresponds to the human rights paradigm in the contemporary age. This article concludes that, while the use of qiyās in criminal law, especially in law of retaliation and predetermined punishments in accordance with al-Shāfi’ī’s approach is tantamount to incriminating a person based on less than certainty, it also represents the most promising way of protecting the right of victim. (shrink)

The foundations of almost all Islamic sciences were laid in the first and second centuries of hijra. With the expansion of the Islamic world since the first century of hijra, the existence of a collective effort to transfer oral information into writing is notable. With the invitation of the prophet Muḥammad to Islam, an unprecedented increase in the culture of writing has been observed. Since the emergence of Islam, the world history scene has witnessed feverish writing activity. Especially in the (...) 2th/8th century, when the transition from oral culture to written culture accelerated, the founding texts of the science of language and religion, which were the carriers of these sciences related to aqāid-kalām, fiqh and uṣūl al-fiqh, tasawwuf, tafsir, and hadith, were compiled. Thanks to the founding texts containing the basic principles, the sciences have had the opportunity to develop by deepening. In this study, the contribution of Fiqh al-akbar, the founding text of the science of creed, to the science of kalam, which has made significant progress, will be discussed. In order for a text to be considered a founding and root, there must be a system that it establishes as the fruit of the tree. In this sense, Fiqh al-akbar established a moderate and defensible belief system. There is an organic link between the most concise faith texts and the most voluminous kalām books. While the creed texts, which consist of writing the goals at the end of the road, are the counting of the principles of faith, the texts of the kalām represent the walking of the road that leads to the goal of faith. Fiqh al-akbar, which marks the end of the road by finishing the roads to be walked, is the first and most important of the milestones of Islamic thought. In this study, the contribution of Fiqh al-akbar, the founding text of the science of aqāid, to the science of kalām will be discussed in the context of its belonging to its author. This text gave direction to Ahl al-Sunna theology, which would be written in the later stages of Islamic thought. In this study, the internal and external contexts of the founding text mentioned will be confirmed in terms of its relative acumen to Abū Ḥanīfa. In addition, the reason for the increase in the commentaries (Sharḥ) of Fiqh al-akbar during the Ottoman period will be shown. As a matter of fact, each annotation strengthens that it belongs to the author. In the annotations, there is no sentence stating that the text does not belong to Abū Ḥanīfa, on the contrary, the authenticity of the belonging is emphasized. Of course, not all the annotations of the relevant text will be included here, but mostly printed works will be emphasized. Theology, prophecy and the hereafter are discussed in Fiqh al-akbar. Here, how theological debates and problems related to the history of theological concepts are handled in the commentaries will be shown. In this article, within the framework of the method discussed as an example, a preparation will be made for further studies to evaluate the topics and concepts of prophecy and the hereafter in the context of commentaries. The point that should be emphasized here is that none of the scholars who commented on the text pointed out that the subject or concept was not discussed in the period of Abū Ḥanīfa. Moreover, from the early period until as late as the 7th/13th century, both theology and bibliography books did not have any doubts about the belonging of Fiqh al-akbar to Abū Ḥanīfa. Moreover, since the early period, both theological and bibliographical works did not have any doubts about Fiqh al-akbar’s belonging to Abū Ḥanīfa. (shrink)

al-Zarkashī, an ethnic Turk, is an important hadith, fiqh and commentary scholar who lived during the Mamlūks period. He was taught by some of the leading scholars of his era, such as Alā al-Dīn Mughultay (d. 762/1360), Imād al-Dīn Ibn Kashīr (d. 774/1372) ve Jamal al-Dīn al-Asnawī (d. 772/1370), and he grew up under their mentorship. Nevertheless, his only well-known student is Birmāvī (d. 831/1428). Almost half of his works have been related to fiqh and methodology of (...) class='Hi'>fiqh, and he has also written some important works in the field of hadith. Among these, especially al-Tadhkira, al-Nukat alā Ibn al-Salāh, al-Nukat alā al-Umda fī al-Ahkām ve al-Icāba are worthy of mention. The work named al-Tadhkira, which we built our work upon, is the first known work to have been preserved in the field. Due to his being a first in his field, he was vastly studied as to how he evaluated the narrations and what kind of procedure he followed. In this work of his, not only the criticism but also the application of the text criticism adds to the importance of the work. Then, on the basis of this work, scholars such as al-Sakhāwī and al-Aclūnī made complementary works on the same subject. Summary: It is inevitable for a person to be shaped by the society he lives in. During the time when al-Zarkashī lived, Egypt was under the rule of the Mamlūks. The history of Mamlūks is examined under two periods: 1. Bahrī or Turkish Mamlūks (745 / 1344 - 794-1391) 2. Burjī or Circassian Mamlūks (784 / 1382 - 923 / 1517) period. Our author lives in both periods. About forty years of his life was in the period of Bahrī and the rest was in the period of Burjī. In both periods, the state did not have a full political authority in the country, but this was not the case in education and training. In fact, on the contrary to the political situation, scientific activities have accelerated by the arrival of many scholars to the land of Mamlūk because of the Mongol invasions coming from the east and the Crusades from the west. The increase of scientific activity was caused not only by the coming of the scholars but also by the support given by the Mamlūk sultans. In fact, they built many new madrasas in addition to the resurrection of the old ones. In addition to madrasas during the Mamlūks period, mosque, hāngāh, ribat and zāwiya are also among the educational places.Hadith, fiqh and Tafsir scholar al-Zarkashī is originally Turkish. He was born in Cairo at 745 under the conditions mentioned above. His family learned of gold and silverworking because of their subsequent settlement to Egypt, and they made their living with this craft. A person who performs this is called Zarkash in Arabic. Muhammad ibn Bahādır, who learned and did this job, was known as al-Zarkashī. al-Zarkashī, known for his love of science since childhood, was trained hadith by Alā al-Dīn Mughultay (d. 762/1360) and Imād al-Dīn Ibn Kashīr (d. 774/1372) in Damascus, and fiqh by al-Asnawī (d. 772/1370). Among his beneficiaries are distinguished personalities such as al-Subkī (d. 756/1355), al-Azraī (d. 783/1381) and al-Bulqīnī (d. 824/1421). The most remarkable of his student is al-Birmāvī (d. 831/1428).It is known that he wrote about fifty works in hadith, tafsir, fiqh, methodology of fiqh and other fields. Especially among these works al-Burhān fī ʻUlūm al-Qur’ān, al-Tadhkira, al-Ijāba, al-Bahr al-Muhīt fî Usūl al-Fiqh ve al-Mansūr fī al-Qawāid is worth mentioning. Studies on al-Burhān and al-Bahr were carried out at the level of Master and PhD.al-Zarkashī did not hesitate to criticize any person for whom he had found his mistake. For example, even though he has a great love for him, and even because of this love, he has been given the name of al-Minhāj, the criticism of al-Nawawī is the clearest indication of the value given to science. Not just him, critics of scholars such as al-Hākim al-Naysābūrī and Ibn ʻAbd al-Barr who are recognized as authority in hadith can also be considered in this framework.The work named al-Tadhkira which we have studied in our work is of importance in that it shows the accumulation of knowledge in the field of hadith. In order to compose this work, it is necessary to have enough information in this field since the riwāyas must be criticized in terms of isnād and text. To compose his work, al-Zarkashī has benefited from about a hundred and forty works related to hadith, tafsir, al-siyar, history, tabakāt, commentary, jarh - taʻdīl, ilal and maghāzī. The use of such works is an effort to reach all sources and right information as much as possible. Some of these sources are basic hadith books such as al-Bukhārī (d. 256/870) al-Sahīh, Muslim (d. 261/875) al- Sahīh, Abū Dāʾūd (d. 275/889) al-Sunan, al-Tirmidhī (d. 279/892) al-Sunan, al-Nasā’ī (d. 303/915) al-Sunan, Ibn Mādja (d. 273/887) al-Sunan, Mālik ibn Anas (d. 179/795) al-Muwatta, Ahmad ibn Hanbal (d. 241/855) al-Musnad, al-Dārimī (d. 255/869) al-Sunan, ʻAbd al-Razzāq al-Sanʻānī (d. 211/826-27) al-Musannaf, Ibn Abī Shayba (d. 235/849) al-Musannaf, Ibn Rāhwayh (d. 238/853) al-Musnad, al- Bazzār (d. 292/905) al-Musnad, Abu Yaʻlā el-Mawsilī (d. 307/919) al-Musnad, Ibn Hibbān (d. 354/965) al-Sahīh, al-Tabarānī (d. 360/971) al-Muʻjam al-Awsat and al-Muʻjam al-Kabīr, al-Hākim al-Naysābūrī (d. 405/1014) al-Mustadrak.al-Zarkashī divided the riwāyas he had studied into eight subjects. These are judgments, wisdom, zuhd, medicine, virtue, prayer, story, words and riwāyas circulating in language. He shares the information he obtains from sources about him after mentioning the riwāyas he will examine. For example, it is mentioned that there is not a hadith which is transmitted as a hadith, it is a word of a sahāba, tābiun or a person. He transferred on the riwāyas the sources mentioned in the sources, but also stated that he did not participate in some information as the place came.The author has evaluated the narrators of the riwāyas from the point of jarh and taʻdīl. He did not only evaluate riwāyas in terms of isnād, but also text criticism. This activity is a distinctive feature of his work.al-Zarkashī gave information about the misrepresentation of the name of the narrators. He also explained the strange words that are difficult to understand in the text. It is a manifestation of his knowledge in the fiqh area that some of the riwāyas that are considered weak are expressed in some sects. The author described some errors about the riwāyas. For example, he stated that a riwāya that is said to be marfūʻ is a mavkūf. al-Zarkashī also included verses, hadiths and poems about the riwāya that he had studied while writing his work or he defended it by saying that it is not the case of a riwāya that is said to be fictitious.Perhaps it is the weakest point of al-Zarkashī’s work not to give any information about some riwāya, only to mention their isnāds. He also found some riwāyas that did not have a reliable isnāds and stated that their meanings are correct. This knowledge has become an enlightening characteristic for later generations.This work has a great significance in showing that the majority of the riwāyas that spread among the people are not hadiths. As a matter of fact, 73% of the riwāyas examined in the work are weak or irrelevant riwāyas. This work of al-Zarkashī is unique. The existence of such a work has not been determined before him. This work constituted the basis of the works written by scholars such as al-Sakhāwī and al-Aclūnī in the same subject after him. (shrink)

There are two widely accepted definitions of ilm al-tafsīr in the hāshiyahs on Anwār al-Tanzīl. The most accepted ones are as follows: Tafsīr is the science that investigates the states of the word of Allah in terms of signifying the will of Allah. This definition mainly belongs to al-Taftāzānī in his hāshiyah on al-Kashshāf. Despite the objections directed to it, the definition was accepted in the later phases and there were not any detailed discussions on it. From this point of (...) view, it can be concluded that there is a common tafsīr definition in Anwār al-Tanzīl hāshiyahs due to the fact that the majority concurred with this definition. The prevalence of this definition is also out of the question for al-Kashshāf hāshiyahs. Its prevalence in the following literature may be attributed to its implementation in accordance with the definition requirements. Because in the definitions made based on the subject, the subject is regarded as genus, and how this subject is addressed is also considered as a difference (fasl). Accordingly, in the above definition, the subject of the tafsīr is explained as the states of Kalam, and the direction in which it is addressed is expressed in terms of the will of Allah. Thus, the subject of tafsīr and its research direction were explained and its difference from other sciences researching the Qur’ān was also stated. According to the second most widespread definition in the hāshiyahs, tafsīr is a science in which the meanings of the Kalam of Allah are known in terms of human capacity/capability. This definition is more or less a description (rasm) compared to the previous one. Hence, it is a looser definition. For this reason, the definition does not allow tafsīr to be separated from other sciences. Because, the meanings of words in the Qur’ān, language sciences and religious sciences are also explored. However, in the other definition, the difference of tafsīr was taken into consideration by including the directional record and the will/intent expression more quickly. On the other hand, the second definition has a limitation of being based on human capacity/capability that reveals some features of the tafsīr more clearly. This limitation expresses that the research in tafsīr is based on suppositional data in one way and continuity in another. Both definitions in the hāshiyahs show that there are clear and common definitions of ilm al-tafsīr between the hijri 9th and 12th centuries. It is stated that with a few exceptions, in almost all of the hāshiyahs, the ilm al-tafsīr is divided into two parts as tafsīr and ta’wīl. The tafsīr here is based on narrative, and ta’wīl is based on reason. Explanation of both of them in this way can be seen in al-Kashshāf. Accordingly, it is understood that both concepts become evident in al-Kashshāf and Anwār al-Tanzīl hāshiyahs. However, when we look at some tafsīr introductions, and literature of ulūm al-Qur’ān, it is observed that vastly different explanations have been made about them. This gives the impression that there is no clear and widespread acceptance of them. However, by explaining as mentioned, their meaning becomes clear in the next literature. Because this explanation about them is essentially a statement that al-Māturīdī conveyed from his predecessors. Accordingly, an explanation about both concepts that was conveyed from the early period has gained acceptance and became widespread especially in the sharhs-hāshiyahs for the following process. Since al-Baydāwī associates both concepts with muhkam and mutashābih, the commentators also explained this relationship. They contain the definitions of the muhkam and mutashābih, which al-Baydāwī made in accordance with Shāfi‘ī method. Accordingly, muhkam are the ones that is clear in terms of what is meant, and do not need further explanation. Examples of muhkam are verses about shari‘a 'orders, inheritance distribution, transactions, and marriage issues. The provisions on these issues should be based on narrative, not reason. Thus, the explanation of muhkam becomes tafsīr. The mutashābih is interpreted since the meaning is not clear. In this case, their interpretation is also ta’wīl. The religious sciences that tafsīr benefits from are explained as being hadith, fiqh, theology, mysticism, and usūl al-fiqh, and this case expresses a general opinion. Literary sciences required for tafsīr are also described as glossary, derivation, morphology, grammar, bayān, ma‘ānī, and badī‘. However, there are two opinions about the knowledge of disciplines such as prosody, rhyme, qard al-shi‘r, khat, and inshā. According to one opinion, since these sciences are not related to the Qur’ān, it is not necessary to know them in order to interpret them. According to the other one, for a competent interpretation activity, these sciences must be known, and their data are thought to contribute to tafsīr. (shrink)

Al-Shafi'i (d. 820) is clearly one of the most important figures in the early history of Islamic jurisprudence. His Risala or "Treatise" on the "principles of jurisprudence" (usul al-fiqh) is also of interest as an example of an approach to ethics that focuses on divine commands. Following a brief introduction, I offer the reader a few comments about al-Shafi'i's context. I summarize the content of the Risala and then analyze it as an example of divine command reasoning in ethics. (...) Finally, I present some observations on the place of al-Shafi'i's theory in the history of Islamic ethics, particularly with respect to his comments on ikhtilaf, "disagreement.". (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)

I propose a framework for comparative Islamic—Western ethics in which the Islamic categories "Islam, Iman," and "Ihsan" are juxtaposed with the concepts of obligation, value, and virtue, respectively. I argue that "shari'a" refers to both the obligation component and the entire structure of the Islamic ethic; suggesting a suspension of the understanding of "shari'a" as simply Islamic "law," and an alternative understanding of "usul al-fiqh" as a moral epistemology of obligation. I will test this approach by addressing the question (...) of reason in Islamic moral epistemology via an examination of an argument advanced by a founding usul scholar Muhammad bin Idrīs al-Shāfi'ī (150 A.H./767 C.E.). (shrink)

It is widely acknowledged that two methods of writing have emerged in the history of usūl literature: Juristic method (usūl al-fuqahā) and theological method (usūl al-mutakallimīn). Although there are some attempts to determine the typical features of these methods, we do not have a comprehensive explanation regarding the criteria of this distinction, the motivation behind it and the period when these methods have become prevalent. This paper aims to shed light to certain dimensions of the issue and focuses especially on (...) the impact of juristic disputations and khilāfiyāt on the emergence of juristic method. The discussions about the sources and methods of religious knowledge were a significant part of the heated intellectual debates in the early period of Islamic scholarships. These discussions made by scholars interested in theological matters in kalām context were the matters of usūl, which would have turned into a separate discipline thereafter. The aforementioned period also witnessed Hanafīs completing the first fiqh compilation by recording the body of masā’il in fiqh that they had developed and codified. Hanafīs then involved in the methodological discussions of theologians in the context of justifying their juristic views. The tradition of scholarly discussion that had widely contributed to the earlier period took a new dimension by the introduction of jadal to the Islamic world. First theologians and later jurists adopted the method of jadal in their debates and scholarly works. By the 4th and 5th centuries AH, fiqh became popular more than ever and promoted the juristic disputations in such a way that those disputations turned into a common and significant performance among Islamic intellectuals. Meanwhile, the khilaf genre, in which the disputed juristic matters have been discussed and justified, improved in those centuries as well. Consequently, a new method of usūl writing, namely the method of fuqahā, which can be applied in the justification of the masā’il and in juristic disputations, emerged. Thus, the first and most typical work of that method, Taqwīm al-Adilla by Dabūsī, perfectly addressed the needs of the disputation tradition in the era, by including many chapters that could be regarded as related to the substantial law and many examples from substantial law, by treating the jadal topics in qiyas and ‘illa chapters in detail and by avoiding the speculative theological disputes. Later, the method developed by Dabūsī attracted attention and many jurisprudents wrote usūl works adopting the method before the end of 5th century AH. Especially the usūl work of Bazdawī served as a model for the later Hanafī usūl literature. However, the juristic method lost its popularity when the Islamic scholarships fell under the influence of philosophy and logic after al-Gazālī and al-Rāzī. Jadal and ‘ilm al-bahth wa’l-munāzara have been treated under the discipline of logic afterwards. Nevertheless, even after the evolution of the usūl perspective, some Hanafīs still wrote usūl works by juristic method and some of them, despite adopting the new philosophical perspective, referred to the usūl of Bazdawī in their “mamzūj” (combined) usūl works. (shrink)

In legal methodology (usul al-fiqh), the problem of the defining istiḥsān and the legitimacy of its definition is among the critical discussion topics. To overcome the rigorism of law, istiḥsān was used by the founder scholars of Ḥanafī school of law and Malik b. Anas - however this use received various objections. Although the Mālikī scholars also used istiḥsān strong criticisms of istiḥsān have been directed on the Ḥanafīs. After the severe criticism of Muḥammad b. Idrīs al-Shāfiʿī, the Ḥanafī (...) scholars carried out various intellectual activities to define istiḥsān and to prove that it is legitimate. This process -which started especially with Abū’l-Ḥasan al-Karkhī and Abū Bakr al-Jaṣṣāṣ, revealed a rich accumulation with the contribution of the legal theorists in other school of laws. It is known that al-Karkhī's definition of istiḥsān has become widespread among the legal theorists, and the legitimacy of istiḥsān in the works of legal theory was based on his definition. Al-Karkhī's considerations on the legaliticamy of using istiḥsān can be traced in his student al-Jaṣṣāṣ, in the following centuries, Abū Zayd al-Dabūsī, Abū l-‘Usr al-Bazdawī and al-Sarakhsī’s works. Al-Jaṣṣāṣ' explanations on the legitimacy of istiḥsān begin with the criticism of Imam al-Shāfiʿī's against istiḥsān. He provides the proof of legitimacy for istiḥsān in divided two sub-headings. Al-Jaṣṣāṣ, who deals with istiḥsān in two parts as word and meaning, argues that there is no disagreement about the use of istiḥsān and that all mujtahids accept istiḥsān, and even al-Shāfiʿī, who opposes to the use of istiḥsān, employs istiḥsān in this sense. The type of istiḥsān on which there is a deabte is the istiḥsān used in relation to its meaning. Al-Jaṣṣāṣ states that this use is a qiyas operation; he justifies his point of view by referring to the works of Muḥammad b. Hasan al-Shaybānī. Indeed, when we look at how al-Shaybānī explained the istiḥsān’s examples in his works, it is seen that there are two conflicting juristic analogy (qiyas) made in many examples. Moreover, al-Shaybānī openly considered some types of istiḥsān part of qiyas by stating that some examples “can be included in this type of istiḥsān” Ḥanafī scholars wanted to break the hostile atmosphere toward istiḥsān by defining and evaluating the istiḥsān in a way that their opponents could accept. The definition of Istiḥsān “to abandon the judgment given to similar ones due to stronger evidence.” has been generally accepted. In this definition, istiḥsān is defined by associating with qiyas, and referred to an istihsan that is presented as the more substantial evidence, and qiyas is the weaker evidence. Although it is appropriate to define istiḥsān in relation to qiyas, the claim that in the definition istiḥsān is put in stronger place than qiyas might casuse to some the contradictions- in particular when the example’s of al-Shaybānī are taken into consideration. Because in most cases, when qiyas conflicts with istiḥsān, istiḥsān is taken. But in an opposite case, qiyas might be taken. Apart from these, there are examples of the types of istiḥsān that al-Karkhī has classified in the works of al-Shaybānī, but sometimes there are also strange situations such as taking the qiyas by istiḥsān. This also means that the term is not sufficiently defined. The negative attitude towards istiḥsān in some Shāfiʿī circles and the criticisms against the legitimacy of istiḥsān continued in the works of the fiqh method. Istiḥsān is defined as making a judgment without evidence by Shāfiʿī circles. Therefore, they did not accept the abandonment of qiyas, which is a sharī proof, because of istiḥsān, which is a non-sharī notable proof. Based on the examples given by the users of istiḥsān, Ibn Ḥazm, one of the Ẓāhirītes, claims that istiḥsān opens the door to arbitrariness. According to him, a situation that is accepted as istiḥsān according to Ḥanafīs can be taken as istiḥsān according to Mālikīs. This creates an apparent contradiction. There are some valid points in the assessment of Ibn Ḥazm. Because while it is seen that the istiḥsān of Mālikīs is criticized in al-Shaybānī's book named al-Ḥujjah, it can be also found that the istiḥsān of Ḥanafīs is charged in the works of Abū’l-Walīd al-Bājī, one of the Mālikīs. The criticism toward istiḥsān was continued by Shāfiʿīs such as Abū Isḥāq al-Shīrāzī, Imam al-Haramayn al-Juwaynī and Abū Ḥāmid al-Ghazālī. While al-Juwaynī sees istiḥsān as a method based on the lust of the soul, not istinbat/legal deduction, al-Ghazālī understands istiḥsān as a personal comment. The main reason for the negative attitude towards istiḥsān is that the content based on the definitions, has been neglected most of the time. However, when we look at the works of al-Shaybānī, it can be seen that there is a proof of istiḥsān contrary to what is believed-and that this can be sometimes a work, sometimes a necessity, sometimes another comparison, or sometimes a custom. (shrink)

Abū Ishāq al-Ṣaffār was one of scholars of the Western Qarakhānids’ period who followed the Kalām thought of al-Māturīdī (d. 333/944). His theological works Talkhīs al-adilla and Risāla fī al-kalām, his method in kalām, and frequent reference to his works by Ottoman and Arab scholars indicate that al-Ṣaffār is a respected and authorative Māturīdī theologian. The article focuses on his defense of the kalām. By adding a long introduction to Talkhīs about the naming, importance, and religious legitimacy of the science (...) of kalām, Saffār asserted that the kalām should be learned. When systematical vindication of the science of kalām is examined, it is understood that al-Ṣaffār is the first theologian who reserved a private and voluminous part for defensing the kalām among Ḥanafī-Māturīdīs. Even though he does not state its systematic, it can be understood that vindication of kalām in al-Ṣaffār divides into three parts as of explanation, demonstration and refutation. Al-Ṣaffār’s defending the science of kalām shows that there were opposite thoughts against kalām in the 4th/10th and 5th/11th centuries throughout in Transoxania. In this period Aṣḥāb al-Ḥadīth and Ikhwān al-Ṣafāʾ were the opposite fronts of kalām. In addition, he was trying to go beyond the oppositions of Ḥanafī jurists. His vindication is consistent and has scholarly depth because it is able to be against a strong opposition. -/- SUMMARY: Abū Ishāq Ibrahīm b. Ismāil Zāhid al-Ṣaffār al-Bukhārī is a scholar belonging to the Ḥanafī theological tradition which was improved by the contribution of Ḥanafī theologians who used thinking system of Abū Ḥanīfa (d. 150/767) as base and adopted Abū Manṣūr al-Māturīdī (d. 333/944) and his thoughts in historical process. The contents of his theological works Talkhīs al-adilla li-qawāʿid al-tawḥīd and Risāla fī al-Kalām, the method that he used, and references to his works made by Ottoman and Arab scholars indicate that he is an important Māturīdī theologian. The article focuses on his defense of the science of Kalām. -/- In Talkhīs al-adilla, there are two sections including the subject of naming, and importance and necessity of Kalām discipline. Here, the necessity of learning Kalām and its value are defended in detail. -/- Besides, rumors “Abū Ḥanīfa turned away from the science of Kalām in his doomsdays” and that “He prohibited to make occupation with Kalām completely” are evaluated. -/- When systematical vindication of the science of Kalām is examined, it is understood that al-Ṣaffār is the first theologian who reserved a private and voluminous part for defensing the Kalām among Ḥanafī Māturīdīs. Even if Abū Manṣūr al-Māturīdī, Abū al-Yusr al-Bazdawī (d. 493/1100) and Abū Muʿīn al-Nasafī (d. 508/1115) defend that the science of Kalām is not wrong for religion; yet, the vindication of Kalām does not take a place under a separate title and in a detailed manner in any of Māturīdī theologians works. -/- The method that al-Ṣaffār used when he is defending the science of Kalām, differs from strategy of Abū Ḥanīfa. While Abū Ḥanīfa has mentioned that there is a need for the science of Kalām under these new circumstances, al-Ṣaffār has defended theologians who were charged with being Ahl al-Bidaʿ, by trying to prove that the prophets especially the Prophet Ibrāhīm, even the Companions of the Prophet Muḥammad (Ṣaḥāba) and the Successors of the Companions (Tābiʿūn) scholars use their minds and make arguments in religious matters. In this respect, he emphasizes that the Qurʾān orders to think and discuss gently, not to be stay in silence: “And dispute with them, using what is best” (16.125-126). Therefore, he states that this discipline which took a mission to explain and defend the creed of Islam (ʿaqīda), cannot be characterized as an innovation (bidʿah) or illicit. -/- His vindication method can be defined as a more developed type of method that Abu’l-Ḥasan al-Ash’arī’s (d. 324/935) used in Risāla fī istiḥsān al-khawḍ fī ʿilm al-kalām. Even though he does not state its systematic, it can be understood that vindication of Kalām in al-Ṣaffār divides into three parts as of explanation, demonstration and refutation: -/- a) Explanation: Explaining the necessity and importance of the science of Kalām by giving information about its definition, names, value and place among other principles. -/- b) Demonstration: Revealing the religious basics of the science of Kalām from the Qurʾān, the Sunna of the Prophet Muḥammad, the Companions of the Prophet, and the Successors of the Companions thus specifying that it is legitimate for religion. -/- c) Refutation: Replying the claims having aim to weaken the value of Kalām principle and its religious legality. -/- Al-Ṣaffār describes ‘the science of Kalām’ as ‘Knowing the Real with the evidences which help to reach the absolute information’. By allocating the concept of 'Ḥaqq', he repeats the definition of Kalām as “it is to know God with certain evidences” in a part of his work, and “it is to know the principles of religion (uṣūl al-dīn) with certain evidences” in another part. He describes Kalām as “Knowing ḥaqq / God / uṣūl al-dīn by depending on evidence”, and tries to prove that it is wrong to consider a science which performs the stated duty, as illicit and abominable and thus turn away from it. -/- Al-Ṣaffār thinks that it is right to call this principle as ‘Kalām’ because of the certain evidences leading to the truth that this science has used. This thought was defended by other theologians as well. -/- For example, according to Saʿd al-Dīn Masʿūd al-Taftazānī (d. 792/1310) it seems like to say “This is the word (kalām), not the other knowings” by the way of the power of evidences used in Kalām.Thus, it is appropriate to give name Kalām for this science which based on certain evidences. -/- Al-Ṣaffār’s explanations revealed in scope of vindication of the Kalām are adopted by some of following scholars. Ḥusām al-Dīn al-Sighnāqī (d. 714/1314) in his book called al-Tasdīd sharḥ al-Tamhīd fī qawāʿid al-tawḥīd quotes Saffâr’s explanations as the same. -/- Al-Ṣaffār indicates that the method told in the Qurʾān is to reply questions about religion, beliefs and rejection instead of remaining in silence. The duty taken on by Kalām is this vindication activity performed by the prophets whose examples are described in the Qurʾān and which is legal and demanded. His way of thinking and vindication of the Kalām resembles that of Abū Manṣūr al-Māturīdī. Al-Māturīdī says, “Prophets and we were ordered to invite infidels to Islam. When this invitation happens, the respondents will ask for evidence and explanation, and discussion will be inevitable. Therefore, discussing and talking about subjects of Kalām is not objectionable”. -/- Thoughts of al-Māturīdī and al-Ṣaffār regarding the vindication of the Kalām were repeated by Nūr al-Dīn al-Ṣābūnī (d. 580/1184), and Fakhr al-Dīn al-Rāzī (d. 606/1210) later. According to al-Ṣābūnī, the evidences put against deniers and especially the discussion made by the Prophet Ibrāhīm to defend his own belief, prove the legality of Kalām discipline. Likewise, according to al-Rāzī, the duty of Kalām is just an activity performed already in the Qurʾān and ordered to the prophets. At this point of view, since the prophets were leading to Kalām, banning this activity is nonsense. -/- According to al-Ṣaffār, the reason for why Abu Hanifa avoids his son Hammād from these discussions is that Abu Hanifa does not like discussions based on obstinate. Otherwise, it cannot be that Abū Ḥanīfa prohibits to learn Kalām and make discussion about Kalām. According to him, this behavior of Abū Ḥanīfa results from that people discussing with him are ignorant about the subject of Kalām, discussion turns to an obstinate, and coming to an end of discussion seems impossible. This comment of al-Ṣaffār is quoted in Miftāḥ al-saʿāda wa-miṣbāḥ al-siyāda by ʿIṣām al-Dīn Aḥmed b. Muṣṭafā Tashköprüzāde (d. 968/1561) and in Minaḥ al-rawḍ al-azhar fī sharḥ al-Fiqh al-akbar by ʿAlī b. Sulṭān Muḥammad al-Qārī (d. 1014/1606) as same as his words. -/- Al-Ṣaffār’s defending the science of Kalām shows that there were opposite thoughts against Kalām in the 4th/10th and 5th/11th centuries throughout in Transoxania.In this period Aṣḥāb al-Ḥadīth and Ikhwān al-Ṣafāʾ were the opposite fronts of Kalām. In addition, he was trying to go beyond the oppositions of Ḥanafī jurists (fuqahāʾ). Because some of the Ḥanafī jurists thought that Abū Ḥanīfa forsook occupation with the science of Kalām and even he prohibited his son to have interest in this discipline. But some of Ḥanafī theologians such as al-Māturīdī, al-Nasafī and al-Ṣaffār protested this thought which describes Abū Ḥanīfa as a banner for Kalām. -/- His vindication is consistent and has scholarly depth because it is able to be against a strong opposition. -/- His book Talkhīs al-adilla li-qawāʿid al-tawḥīd is a unique source in terms of containing vindication of the Kalām in detail and also influencing the approaches of the next period scholars. (shrink)

Saeed Ahmad Palanpuri, who was born in India in 1942, is one of the important scholars of our time. He taught fiqh and hadith in Diobend madrasahs for many years. He wrote some textbooks to be taught in the rings held here. One of the textbooks he wrote is the work called Mabādi’ al-uṣūl, which he wrote about the Ḥanafī school’s legal theory. With this work, It is aimed to introduce the book that mentioned and to reveal the (...) missing aspects. (shrink)

This article examines the influence of the Hanafī philosophy of the Mamlūk period on the early Ottoman fiqh studies. Since the Egyptian and Damascus regions, which were under the rule of the Mamlūks, became the most important centres of knowledge in the Islamic world, it is understood that the Mamlūks’ scientific knowledge was superior to the Ottomans. On this occasion, many scholars who were considered the leading figures of the Ottoman scientific community turned to Egypt and Damascus regions and (...) benefited from the scientific accumulation there. In fact, these scholars who played an active role in the formation of the Ottoman scientific environment completed their education in Damascus and Egypt under the rule of the Mamlūks and graduated from the Mamlūk education system and assumed important roles in the formation of the Ottoman science understanding. During this period, the Hanafī judges (fuqahāʾ), who were active in the Mamlūk community, contributed to the development of the leading names of the Ottoman scientific community and this thought had an impact on their understanding of science. In this context, it is possible to say that the fiqh studies of the Ottomans in the first period were influenced by the Mamlūk Hanafī who had their characteristics. The two main characteristics of Hanafī thought in the Mamlūk period, the hadīth-centred juristic (fiqh) idea and the method of mamzûc (mixed) fiqh style are also seen in Ottoman fiqh works.Summary: In this article, the effect of Hanafī fiqh thought on the early Ottoman fiqh studies in Mamlūk period is discussed. While the Ottomans did not yet establish a scientific tradition in the period of foundation and ascension, many Mamlūk cities replaced Baghdad as the centre of knowledge of the Islamic world. Because the Mongol invasion, the crusades and the destruction of Andalusia due to reasons such as many scholars displaced by the Mamlūks settled there. Especially during this period, Egypt and Damascus, which were under the rule of the Mamlūks, became the most important centres of science in the Islamic world. In this respect, 14th-16th It is accepted that the science level of the Mamlūks was quite superior to the Ottomans in the 16th century. On this occasion, many scholars who are considered as the leading names of the Ottoman scientific community turned to Egypt and Damascus regions and benefited from the scientific accumulation there. Osman Ghāzī’s teacher and father-in-law, Sheikh Edebālī, Davud-i Kayserī, Sheikh Bedreddin, Molla Fanārī, Molla Gürānī are some of these scholars. In addition to these, scholars such as Muhsin-i Kayserī, Germiyanlı Poet Ahmedī, Hacı Paşa, Celāleddin Hızır, İbnü’l-Cezerī and İbn Arabşāh have also studied science in Egypt and Damascus. These scholars, who played an active role in the formation of the Ottoman scientific environment, completed their education in Damascus and Egypt under the rule of the Mamlūk and after graduating from the Mamlūk education system, they played an important role in the formation of the Ottoman science understanding. Sheikh Edebālī was accepted as one of the scientific and spiritual leaders of the Ottoman Empire. Davud-ı Kayserī was the first chief professor of İznik madrasah, the first Ottoman madrasah. Molla Fanārī had the privilege of being the first Ottoman shaykh al-Islām. Molla Gürānī became the teacher of Fatih Sultan Mehmed. During this period, the Hanafi faculties, which were active in the Mamlūk science community, contributed to the growth of the leading names in the Ottoman science community. Molla Fanārī, Seyyid Şerif Cürcānī, Shaykh Bedreddin and Poet Ahmadī have learned lessons from Bābertī, who important Hanafī scholars in Egypt. The idea of Hanafī fiqh in the Mamlūk period influenced the studies of the Ottoman fiqh in the first period. In this context, Molla Khüsrev refers to Zeyla‛ī and Bābertī, the leading Hanafī scholars of Mamlūk in many parts of his work, although he did not go to the regions dominated by the Mamlūks. The two main characteristics of the Hanafī thought in the Mamlūk period were the hadith-centred fiqh thought and mamzûc (mixed) method of fiqh. In the Mamlūk period, hadith studies which were not seen before in Hanafī sect were done. During this period, Hanafī jurists spent time in the field of hadith such as Ibn Balabān, Ibn Turkmānī, Zeylaʻī, Kuraşī, Mogoltay b. Kılıç, Bedruddīn Aynī, Ibn Kutluboğa, Serūcī, Bābertī, İbnü’l-Humām, İbnü’l-‛Adīm. They tried to eliminate the lack of studies in the field of hadith in the Hanafī circles while their studies certainly require hadith expertise. As a result of the works of these jurists in the field of hadith, the basic sources were frequently included in the fiqh studies in the Mamlūk period and, the hadiths were started to be made. The influence of this understanding, which had an important place in the thought of the fiqh of Hanafī during the Mamlūk period, can be seen in the Ottoman fiqh works in the first period. In this context, Molla Khüsrev, in his work with the influence of the early Ottoman jurists who had been educated in Egypt before him, gave some basic sources of hadith and sometimes gave information about the reliability of hadiths. On the other hand, it is possible to say that this issue is quite insufficient in Ottoman fiqh works when compared with Hanafi jurists of the Mamlūks. A comparison of Ibnü’l-Humām’s Fethü’l-kadīr and Netāicu’l-efkār, which was performed by Kādızāde order to complete it, can be compared. Apart from that, there are different attitudes between Şürünbülālī and Şeykhi-zāde known as Damad Efendi, they lived in the same period. Şürünbülālī, one of the Egyptian scholars of the Ottoman period generally gave the hadiths from the basic hadith sources in his work Merāki’l-felāh, while Şeyhīzāde did not obey this issue and rarely included basic hadith sources in his work Mecma‛ü’l-enhur. These differences can be explained by the necessity of the scientific environment. Because the Hanafīs were accused of not using hadith in Egypt and its environs, the Hanafī jurists living in this region should have directed them to be more rigorous about the hadith. However, since the Hanafī jurists living in other Ottoman regions did not have such a problem, they probably did not feel the need to refer to the main sources of hadith in the power of hadiths. Therefore, it can be said that the scientific environment and the need arising in this direction lead to different attitudes of the jurists living in the same period. The mamzûc (mixed) method starting with Ibnu’s-Sāātī, In the 8th-century, it was especially effective on the idea of ​​the fiqh style of Hanafī jurists. Although the first name of the mamzûc (mixed) method, Ibnu’s-Sāātī, was not one of the scholars of the Mamlūk period, the influence he initiated was more common in the Mamlūk period and became one of the characteristic features of the Hanafī fiqh thought in this period. Therefore, it is understood that the majority of Hanafī jurists had a gratified method. In addition to this, it is seen that Ottoman jurists who were educated in and around Egypt write procedural works in grammatical style. Molla Fanārī's work Fusūlü’l-Bedāyi is the most important example of this genre. Moreover, even Molla Khüsrev, who had not gone to Egypt and his surroundings, wrote a memoir-like work called Mir’ātü’l-Usûl. The works of these two authors show that the Ottoman jurists were influenced by the Mamlūks. As a result, it is possible to say that the fiqh studies in the early period of the Ottomans were influenced by the Mamlūk Hanafīs who had their characteristics. The hadith-centred fiqh thought and mamzûc (mixed) fiqh style understanding had an impact on the early Ottoman fiqh studies. (shrink)

This study examined the contemporary ijtihād paradigm, especially in understanding the Islamic law sources, according to Muḥammad Shaḥrūr. This study focused on answering two things, namely Shaḥrūr's thinking in understanding the sources of contemporary Islamic law and compared it with the opinions of 'ulamā (Muslim scholars in Islamic law). An explorative method was used to explore the Shaḥrūr's thinking in understanding the contemporary Islamic law sources, and a comparative method was used to analyse it using 'ulamā's methodology. This research study (...) used an Islamic law methodology (uṣūl al-fiqh) approach. This study concluded that the Shaḥrūr's thinking in understanding the sources of contemporary Islamic law is not comprehensive and less of combination among sources and propositions used by 'ulamā. Etymology understanding is most dominant in his methodology. In addition, there are some misunderstandings on Islamic law concepts raised by 'ulamā. CONTRIBUTION: This research enriched the study of contemporary Islamic law in responding to challenges of different times. Shaḥrūr offered a new paradigm that in al-Quran, the laws have certain limits and they should not be violated. The sunnah was divided into two parts, the changing and the unchanging. Qiyas is an analogy with the problems that happen now with those that happened in the past. And ijma is an agreement from people who have authority in certain matters. (shrink)

The sources show that two different groups of sheikhs were followed in the Hanafi usūl al-fiqh: ‘Iraqi and Samarqandi sheikhs. However, the perception of followers of ‘Iraqi sheikhs formed the dominant Hanafī tradition. This situation has caused different approaches of the theologian methodologists who followed the Samarqandi sheikhs to become in shadow. Considering this separation within this denomination, when the sunnah sections of usūl al-fiqh literature are compared it is possible to see the different points raised within the (...) Hanafi usūl al-fiqh. In this study, “the definition of sunnah”, “the acts of the Prophet”, “the imitating companions”, “the criteria of ard (submission) to the Qur’an” and “the problem of faqīh (jurist) narrator” are determined as differentiated notions. Considering these issues, since the concepts which differentiate theologian methodologists, whose perception have been taken into account in this paper, from the dominant Hanafi usūl tradition have been generally related to theological concerns, it is possible to argue that this distinction can be explained by their approach of usūl in which theological premises considered as important as other concerns. Eventually, this paper aims to show that like any denomination Hanafi sect also does not have a uniform approach about sunnah.Summary: In this study, the marks of differentiations in sunnah topics were followed based on the works of Ḥanafī usūl al-fiqh written in the Transoxanian region between 5th-8th centuries A.H. The reason for the limitation of this issue is that there have been some changes and developments in the sect in this region and period. It is because Ḥanafī usūl al-fiqh, which is in two different lines, namely ʿIrāqī sheikhs and Samarqandī sheikhs, has improved in favor of one side in this period. It is thought that this dual disintegration occurs due to the effect of different theological tendencies. This situation has caused the different approaches of the theologian methodologists who mostly followed the Samarqandī sheikhs to be overshadowed. Because Ḥanafī tradition, which became a permanent establishment, mostly followed the line of ʿIrāqī sheikhs in terms of both the topics that are discussed and the approaches in these issues. The aim of this study is to determine the different approaches of the line of Samarqandī sheikhs to sunnah. In the study which is based on comparative method, sunnah topics of Dabūsī, Pazdawī, Sarakhsī and those who followed them and the theologian methodologists Abū l-Yusr, Samarqandī, Lamishī and Usmendī’s sunnah topics were compared and the differentiation points of the second group were determined.In this context, it is seen that there are two different approaches in the Ḥanafī usūl al-fiqh regarding the definition and scope of sunnah. Because the Ḥanafī principals who followed the ʿIrāqī sheikhs, while describing the sunnah, they included the companions in the scope of sunnah. However, Abū l-Yusr, Samarqandī and Lamishī did not mention the companions in the sunnah description and stated that the only person to be subjected was the Prophet. In addition, the Ḥanafīs in the second group, unlike others, do not accept the opinion that the meaning of absolute sunnah word is only sunnah of the Prophet. At this point they have shared the same conviction with the ahl al-ḥadīth (the traditionists) and cumhūr al-ulemā (majority of ulema).There are two different approaches, which are based on ʿIrāqī and Samarqandī sheikhs in the show of the judgments of the acts of the Prophet. According to the ʿIrāqī Ḥanafīs, the Prophet's act is attributed to mubāh (permissible) when there is no evidence about its feature. According to the Samarqandī sheiks, such an act is attributed to vucūb (obligation) in terms of practice and stopped in terms of faith. Most of the later Ḥanafī scholars have adopted the idea of ​​ibāha (permissibility) of the ʿIrāqī Ḥanafīs. On the other hand, Samarqandī, Lamishī and Itkanī have tended to the opinion of the Samarqandī sheikhs.It is seen that two different approaches were adopted by Ḥanafī scholars in the field of imitation of companions. Most of the Ḥanafīs adopted the view of Bardaī. According to this view, it is necessary to imitate companions and their expression takes precedence over the qiyās (legal analogy). On the other hand Samarqandī and Lamishī adopted the opinion of Māturīdī. According to this opinion, a companion who has reached the rank of fatwā (legal opinion), it is necessary to imitate that person if one of his peers did not oppose his opinion on a subject that is not likely to be hidden because the general public needs it.There is also a dispute between the Ḥanafī scholars on the type of information expressed by the famous report. Dabūsī, Pazdawī and Sarakhsī and later Ḥanafīs believe that the famous report does not refer to certain knowledge but to assured knowledge. However, it is understood that, Abū l-Yusr, Samarqandī and Lamishī believe that the famous report refers to certain knowledge. But this conflict between the Ḥanafīs only affects the issue of the takfīr who denies the famous report. It does not cause any dispute on judgments.There are two different approaches in the sect about the issue of opposition to the Qur'an covered by internal interruption. In this matter, the issue of opposition to the Qur'an, especially through ziyāda alā al-nās, has been evaluated in different ways. According to the ʿIrāqī sheikhs and majority of the Ḥanafīs, which followed them, ziyada ala al-nas is naskh (abrogation). But according to Māturīdī and Ḥanafīs which followed him, it is also possible that ziyāda alā al-nās is naskh and statement. One of them cannot be preferred without any evidence. In addition, according to the ʿIrāqī sheikhs general and apparent words of the Qur'an express certain knowledge. However, according to the Samarqandī sheikhs the general words of the Qur'an don not express certain knowledge. So, these words can be specialized by isolated tradition. But it was observed that this conflict between the Ḥanafīs was related to the fact that the first opinion caused some problems related to the faith.In the issue of the faqīh narrator, it was determined that three different approaches were exhibited by Ḥanafī scholars. Firstly, the attitude towards not accepting the report of the non-faqih narrator, expressed by the ‘Īsā b. Abān in Abū Hurayra, is gradually being softened along with Dabūsī and adopted by the later Ḥanafī principals. However, despite the same scientific environment and period, Abū l-Yusr does not follow this approach. At the same time, it is possible to say that Samarqandī, Lamishī and Usmendī don not adopt the faqīh narrator criterion. While ‘Abd al-‘Azīz Bukhārī and Kakī did not adopt this approach but criticized it openly. As a result, it is seen that Ḥanafī sect which contains different orientations in itself does not have a uniform approach about sunnah. The points which differentiate theologian methodologists, whose perception have been taken into account in this paper, from the dominant Ḥanafī usūl tradition have been generally related to theological concerns. So, it is possible to say that this distinction can be explained by their approach of usūl in which theological premises considered as important as other concerns. In addition, it is seen that some of the opinions theologian methodologists present as an alternative to dominant Ḥanafī usūl al-fiqh tradition are close to the ahl al-ḥadīth and cumhūr al-ulemā. (shrink)

There is burgeoning interest in the field of “Islamic” bioethics within public and professional circles, and both healthcare practitioners and academic scholars deploy their respective expertise in attempts to cohere a discipline of inquiry that addresses the needs of contemporary bioethics stakeholders while using resources from within the Islamic ethico-legal tradition. This manuscript serves as an introduction to the present thematic issue dedicated to Islamic bioethics. Using the collection of papers as a guide the paper outlines several critical questions that (...) a comprehensive and cohesive Islamic bioethical theory must address: (i) What are the relationships between Islamic law (Sharīʿah), moral theology (uṣūl al-Fiqh), and Islamic bioethics? (ii) What is the relationship between an Islamic bioethics and the lived experiences of Muslims? and (iii) What is the relationship between Islamic bioethics and the state? This manuscript, and the papers in this special collection, provides insight into how Islamic bioethicists and Muslim communities are addressing some of these questions, and aims to spur further dialogue around these overaching questions as Islamic bioethics coalesces into a true field of scholarly and practical inquiry. (shrink)

I propose a framework for comparative Islamic—Western ethics in which the Islamic categories "Islam, Iman," and "Ihsan" are juxtaposed with the concepts of obligation, value, and virtue, respectively. I argue that "shari'a" refers to both the obligation component and the entire structure of the Islamic ethic; suggesting a suspension of the understanding of "shari'a" as simply Islamic "law," and an alternative understanding of "usul al-fiqh" as a moral epistemology of obligation. I will test this approach by addressing the question (...) of reason in Islamic moral epistemology via an examination of an argument advanced by a founding usul scholar Muhammad bin Idrīs al-Shāfi'ī. (shrink)

The ijtihâd issues are among important problems of uṣûl al-fiqh (Islamic legal theory). Given al-beyân el-ijtihâd in the meaning of interpreting naṣṣ (text) and al-qiyâs el-jtihâd in the meaning of reaching a verdict of a new issue which is not determined by naṣṣ, it is possible to say that mujtahid (a jurist) is actively in the ijtihâd activity. Thus, the ijtihâd issues has been discussed in uṣûl al-fiqh since early period. The fact that Shâfi‘î refers to ijtihâd issues (...) in his works which have arrived the present day shows that there is a rich accumulation of knowledge about ijtihâd discussions in early period. After Shâfi‘î, the issues were discussed by scholars of Islamic legal theory. Among the Shâfi‘î (uṣûl al-fiqh) works which have arrived the present day, the first work that deals with ijtihâd issues in an ordered, systematic and detailed way is the work of al-Mâwerdî’s el-Ḥâvi’l-Kebîr. In this study, al-Mâwerdî discusses many issues in uṣûl al-fiqh, especially the definition of ijtihâd, its types, the relation between ijtihad and qıyâs, the qualities of mujtahid, iṣâbet (right) and ḫaṭâ’ (fault) in ijtihâd and the provision of ijtihâd. The debates on the ijtihâd issues in Shâfi‘î uṣûl al-fiqh before al-Mâverdî are important our subject. al-Mâwerdî’s view of uṣûl has a close relationship with the accumulation of uṣûl developed prior to him. al-Mâwerdî mentions the views of many scholars who have contributed the accumulation of the sect in the ijtihad issues, especially Shâfi‘î. He refers to the views of scholars from sects other than Shâfi‘î in the issues he discussed. From this point of view, it is certain that to determine the ijtihâd issues in al-Mâwerdî’s el-Ḥâvi’l-Kebîr will also help us to determine the framework and course of debates on ijtihâd in the classical period. (shrink)

This book introduces readers to the legal epistemology that is advocated within Twelver Shi'ite usul al-fiqh (legal theory). It critically surveys the epistemological underpinnings upheld by post-19th century Uṣūlīclerics that impel them to mainly deduce and interpret Sharia using scripture and literalist hermeneutical methods. An evaluation of these underpinnings uncovers the important juxtaposition that exists between the seminarian discourses of usul al-fiqh and philosophy. The book hypothesises that usul al-fiqh has both space and historical precedence to accept (...) alternative epistemological theories that may enable orthodox Shi'ite clerics to display greater dynamism in deducing and interpreting Sharia. (shrink)

In the Hanafī school, the writing of the fiqh method is basically divided into two sub-schools, namely the Iraqī and Samarkand method. Alaeddin es-Samarkandī (d.739/1144), one of the important representatives of the Samarkand school, who wanted the fiqh method to be rewritten from a theological perspective, strongly criticizes the method of writing, which became widespread in the Hanafī community before him. While he criticizes the methodists such as Dabusī (d.430/1039), who continued the Iraqī Hanafī methodists’ line, he never (...) mentions Sarakhsī (d.483/1090) and Pazdawī (d.482/1089) in his work. However, when we look at the subject of naskh [abrogation], which we base our study on, it will be seen that the systematic of Samarkandī’s work called “al-Mīzān” is almost the same as the way it is handled in Sarakhsī's work of usûl. The main reason for comparing the understandings of abrogation of both scholars is the close relationship between the subject of abrogation and kalam. In this study, the focus will be on how both scholars approached abrogation and on their approaches to abrogation, and the similarities and differences between them will be pointed out. Whether this similarity and differences coincide with Samarkandī’s critique of the Iraqī sheikh; in other words, the extent to which Samarkandi was right in his criticism that the Hanafī companions before him did not include theological issues in their procedural works will be evaluated through Sarakhsī's understanding of abrogation. (shrink)

The subject “rule”, which is one of the most fundamental issues of the Islamic legal theory (usūl al-fiqh), has been in the center of methodological debates. There is one important term in this regard, which should be studied very carefully: Khiṭāb(speech) of the God. It is because that, especially since the first period of Islam, it has been taken with some significant terms in the field of Kalāmsuch as Husn (pretty; good), Qubh (ugly; evil), and the quality of God’s (...) talk. Yet, adopting this term in the description of the “rule” shows that Fiqh is based on divine inspiration, and it also emphasizes that even though there are some differences in details, wisdom of human being is not ignored when adjudicating. Moreover, it suggests that the validity or methodological accuracy of the “rule” which is adjudicated with ruling case is related to the connection through the term speech or divine inspiration. In this regard, Kalāmdimension of the term and its affect to legal theoretical discussions are very important in terms of historical process of the definition of the “rule” in Islamic law. In this study, I tried to examine whether or not the term “khiṭābof the God” which is used in the definition of the “rule” formed a limitation for consideration of legal evidence in Islamic law and if there is any limitation for the legal evidence regarding being only in the Qur’ān and the Sunnah due to this definition.SummaryThe “hukm (rule, arbritation, judgment, God’s will)”-as the backbone notion in usūl al-fiqhis one of the significant key notions discussed in the legal theory. Specifically, the term “khitabullah” mentioned in the definition of hukmis noteworthy to investigate. Since the early formation period of Islamic law, the term khitabullahhas been embraced along with the theological subjects: “husnand qubuh(the good and evil) and kalām(the attribute of speech to Allah)”. The term “khitabullah” in the definition of hukmemphasizes that indeed the source of fiqhis the revelation (wahy) and also emphasizes that the function of reason (‘aql) is not ignored in the process of adjudication- even if there are some nuances in details.Additionally, it presents that the validity or methodological accuracy of the “rule” which is adjudicated with ruling a case is connected to the term speech (khitāb), or in other words to revelation (wahy).On the whole, in the legal theory, the rule of Sharī‘ah is defined as God’s khitab(the communication of God), which means the demand of God relating to the acts of those who are subject of law or the effect of the khitābon the acts of those persons. Although, in the early formative period various explanations were made about what the rule is, it can be understood that the present definition of hukmbegan to evolve towards the end of the 5thcentury (A. H.). It is clear that al-Ghazālī had an impact on the formation of this definition. It is because al-Ghazālī defined the rule of Sharī‘ahas “the communication from God relating to an act of the person who is the subject of law”. After al-Ghazālī, al-Rādī and al-Baydāwī added to al-Ghazālī’s definition the words “iqtidā and takhyīr” and Ibn Hājib added “wad‘an”. Whereas in the Mutakallimun(theologians) tradition, Ibn Hacib's definition was preferred, Fuqaha(jurists) tradition chose two definitions-resembling each other: “Those coming to exist with the khitāb” and “the effect of God’s khitāb”.Along with al-Ghazālī’s definition, the concept of khitābcarved out a niche for itself in it and became the main element of the definition. It is understood that some discussions in the field of theology, such as husn-qubhand God’s attribute of speech have been effective on the interpretation of the concept of khitāb. The Ash‘arilegal theorists argue that the good and evil are not attributes of the self / the acts, whereas the Maturidi legal theorists argue that the exploration and determination of these attributes is rational and thus, the verdict reached via this rationale is lawful. The Maturidi legal theorists initiated the concept of being subject of law with the concept Sharī‘ah and in the line with this opinion; they defined hukmon the basis of khitāb. On the other hand, the Mutazilites’ claiming the attribute of good and evil are inherent feature of the act, did not define hukmon the basis of the khitābaccording to their theological understanding. The word of khitābassessed with God’s eternal speech (al-kalām al-azalī) has been approached from various aspects: for instance, whether the presence of the addressee is mandatory. The early Asharites scholars (mutaqaddimun), in particular Imam Asharī, did not entitle the eternal speech as khitāb. They consider that the presence of the interlocutor is necessary in the conversion of Kalāminto khitāb. The mutaakhirunAsharites (successors of the early Asharites scholars) did not consider the presence of the interlocutor necessary, thus they viewed the eternal speech as khitāb. The former identification of the hukmwith khitābby the early Ashari legal theorists caused to the problem of whether hukmis adventitious or not. Therefore, this approach was criticised by the Mutazilites. On the other hand, the Maturidi and Mutezilite legal theorists accept that hukmis adventitious; hence they do not consider as a problem naming the eternal speech of God as khitāb.When the historical course is examined, it can be said that one of the important aspects of the development of hukm’s definition is the use of khitāb. Khitābin some cases is used without possessive construction, in other cases it is used with possessive construction with God, or in possessive construction with shar’ or Shāri’. The most important one within these possessive constructions is the notion “khitaballah”. Therefore, it is necessary for khitaballahto be approached from the angle of the legal theory. In comparison to other terms, this notion narrowed the scope of the rule down. In the meanwhile, it raised the question: how the rule deduced via legal evidences can be incorporated in khitāb? As a consequence of this question, some legal theorists, such as Tūfī, proposed another definition by adducing this question.Although it is commonly accepted that the rules deduced via other evidences are within the context of the khitāb, there are also different descriptions about the concept of khitaballah. The rule is not limited to khitaballahin the conception of traditional interpretation accepting the khitābas eternal speech or literal speech (al-kalām al-lafzī). Because either all evidences are within the context of the khitāb,which is the eternal speech or other evidences are within the context of the khitāb,which is the literal speech. Thus, each result coming to exist with the other evidences is part of the Islamic law. But not all of these rules are considered equal to each other. Because each rule which is deduced from indisputable origin (qatii al-thubut) and is deduced from completely explicit sources (qatii al-dalala) are accepted as the word of God or the Prophet. On the other hand, other rules deduced via jurisprudence- in other words by jurist’s own value of judgment is viewed as the virtual rule (al-hukm al-zāhir). Such rules do not express absolute certainty. It is unacceptable for these rules to be described as the word of God or the Prophet. In this way, it is clearly understood that the concept of khitaballahmentioned in the description do not introduce restriction to the evidences ofSharī‘ah.We do not see a contradiction when the indefinite rules of Islamic law included in the context of khitāb. Because ijtihāddoes not aim to produce a new rule, on the contrary it functions in order to find out the already existing rules. The legitimacy of the rule obtained through ijtihādemerges from the way that this rule is deduced from the khitāb,which directly or indirectly represents the divine will. In addition, according to us, this legitimacy is not merely limited to versification and conception of the khitāb, but it also includes the function of the reason in (reasonable of the) khitāb. As a matter of fact, trying to solve unlimited cases with limited texts is difficult- in fact this is impossible. The majority of the legal theorists also share this opinion. Then, there is no obstacle in accepting that each rule obtained by authentic source and methodology can be considered part of Islamic law by implicating the rule in the context of khitāb(which represents the divine will) - although it may contain error and presumption. (shrink)

Primer avance de un trabajo en curso sobre la doctrina de Ibn Tūmart. Se pone de relieve la profunda originalidad del pensamiento jurídico y religioso del fundador del movimiento almohade tal y como se refleja en A‛azz mā yuṭlab. Su respuesta a la pregunta «¿De qué clase es y de dónde procede el conocimiento de la ley divina?» supone una crítica radical a las posturas de sus predecesores en los uṣūl al-fiqh, ya que Ibn Tūmart rechaza frontalmente la (...) suposición como fundamento del saber. Una valoración de la šarī‛a no puede ser establecida en ningún caso basándose en una mera suposición. Al análisis de las consecuencias de este punto de partida, sigue el análisis de la estrecha conexión entre saber y práctica establecida en la doctrina de Ibn Tūmart, eliminándose así el principio de la «carga insoportable» del aŠ‛arismo. Frente a al-Gazālī, para Ibn Tūmart no sólo los conceptos, sino también las mismas cosas están en una relación susceptible de análisis, garantizadas por la existencia del saber creado por Dios. La misión de al-mahdī al-ma‛ṣūm al-ma‛lūm es la de hacer que ese saber aparezca claramente tal y como era al comienzo. Gracias al mahdī se sustentan el Cielo y la Tierra lo cual permite establecer un paralelismo con la doctrina del sufí al-Qādir al-Yīlānī, contemporáneo oriental de Ibn Tūmart. (shrink)

Dal 1980 sappiamo che Hasan Hanafi (1935-2021) aveva un progetto di vita che ha descritto come un triangolo. Il lato più lungo del triangolo è costituito dai suoi studi sull’eredità islamica e, in particolare, sul _ʿIlm usūl al-fiqh, La scienza dei fondamenti della giurisprudenza_. Un altro lato è costruito dalla sua analisi e critica del patrimonio occidentale. Il terzo lato riguarda la vera “realtà”, e per H. Hanafi la realtà è il Corano. L’articolo esamina il suo libro dedicato a (...) questo tema: fu il suo ultimo libro. Since 1980 we knew that Hasan Hanafi (1935-2021) had a lifelong project that he described as a triangle. The longest side of the triangle is made by his studies on the Islamic heritage and, in particular, on the _ʿIlm usūl al-fiqh, The science of the fundamentals of source law_. Another side is built by his analysis and criticism of the Western Heritage. The third side concerns true “reality”, and for H. Hanafi reality is the Koran. The article examines his book devoted to this issue: it was his last book. (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 debate on the Prophet’s parents’ (abawayn al-Rasūl) religious status and their position in the hereafter goes back to several narrations from the Prophet himself. This subject, which can principally be considered part of the problem of the religious status of ahl al-fatrah, seems to be raised by the Shīʿah as an issue of creed in line with their understanding of imamate. Abū Ḥanīfah’s (d. 150/767) statement in his al-Fiqh al-akbar that “Prophet’s parents passed away on kufr/jāhiliyyah” is seen (...) as a Sunnī reaction to this earlier position and led to a new area of discussion shaping the approach of several scholars to the issue. The earliest treatises dedicated to this issue are attributed to al-Ghazzālī (d. 505/1111) and Abū Bakr Ibn al-ʿArabī (d. 543/1148), but these works did not survive to this day. The earliest examples available today are the six epistles that al-Suyūṭī (d. 911/1505) penned. Literature on the Prophet’s parents flourished during the Ottoman times after the introduction of al-Fiqh al-akbar to the Ottoman scholarship. Starting with the first examples that belong to Ibrāhīm al-Ḥalabī (d. 956/1549), Ibn al-Khaṭīb al-Amāsī (d. 940/1534), and Kamālpashazādah (d. 940/1534), the treatises in question were mostly written in Arabic in the Ottoman scholarly milieu. Consequently, it seems that Rawḍat al-ṣafā fī wāliday al-Muṣṭafá is the first treatise dedicated to the issue in Ottoman Turkish. In the library catalogue records, some bio-bibliographical sources, and consequently in some modern studies on the issue of abawayn al-Rasūl, Rawḍat al-ṣafā wrongly attributed to a certain Wajdī Aḥmad Efendī (in Turkish: Vecdî Ahmed Efendi). This is probably due to the author’s presentation of himself in the introduction as just “Wajdī,” without making further description. Besides the data in Bursalı Meḥmed Ṭāhir’s Osmanlı Müʾellifleri, no more information could be provided about the identity of Wajdī Aḥmad Efendī who is shown as the author of the treatise. Intra-textual signs such as the author’s words about the reason and process of writing the work, the way he handled the subject and the evidence he put forward indicate that the treatise belongs to Nūḥ ibn Muṣṭafá al-Qūnawī (d. 1070/1660). Indeed, it overlaps with the fact that Nūḥ ibn Muṣṭafá presented himself as Wajdī in many of his other works. Seemingly the fact that Nūḥ ibn Muṣṭafá defends the view that the parents of the Prophet are among the people of salvation (ahl al-najāh), and while doing this, he was mainly based on the view that they were resurrected after death and that their souls are recaptured after they believed in the Prophet, stem from various reasons such as the view that attributed to Abū Ḥanīfah, Nūḥ’s Sufi identity to the extent that he was initiated to the Khalwatiyyah/Gulshaniyyah along with the ever-growing Sufi influences and the consequent idea of nūr-i Muḥammadī in the public sphere, the authority of the narrations attributed to the Prophet, and perception about the Prophet Muḥammed in the public imagination. (shrink)

This book is a collection of Shahid Murtada Mutahhari’s essential papers on philosophy, theology, ‘irfan (Islamic mysticism), usul al-fiqh (principles of jurisprudence) and morality. The six parts together serve as both a comprehensive survey of the fundamentals of different branches of Islamic studies and a general guide to understanding the basic teachings of Islam.

Dār al-Funūn Theology founded in 1924 was a modern educational institution which adopted both traditional and modern approach to Islamic Sciences. The changes in the field of hadīth during the process of transition to the university caused a change in the definitions and the titles of the courses such as from hadīth al-sharīf and usul al-hadīth to hadīth and the history of hadīth and the time allocated to each course was gradually reduced. The preparation of the texts by the teachers (...) in the hadith history courses and their content will answer the question of whether there is a transformation in the field of hadīth in the early years of the Republic of Turkey. As a matter of fact, Izmirli İsmāʿīl Ḥaqqī’s History of Ḥadīth and Ḥuseyin ʿAvnīʿ Arapkīrli’s al-Buġya al-Hasîs fī Tārīh al-Hadīth which were written in this period, pioneered the studies based on the field of the history of hadīth in Turkish hadīth literature. In addition, these works are the main source in understanding the period. In this study, the mentioned works will be textually analysed through the induction method. Therefore, the subjects that would reflect the ideas of the teachers will be discussed. Thus, it will be tried to determine whether the courses of the history of hadīth are closer to tradition or modern ideas and, how the education of hadīth is practised.Summary: After the foundation of the Turkish Republic in 1923, the Faculty of Theology was opened at Istanbul University as a result of the abolition of madrasas issuing a law regarding to the Unification of Education announced in 1924. With the opening of this faculty, the education in the field of Religious Sciences continued its presence on a new foundation, which can be considered modern, until 1933. In this study, it was attempted to trace the courses of Ḥadīth and the History of Ḥadīth given in the Faculty of Theology at Istanbul University between 1924 and 1933. Firstly, a brief history of the courses will be given, and then it is among the purposes of this study to perform a textual analysis of the works written by the teachers of these courses. While doing this, Izmirli Ismail Hakkı's History of Ḥadīth, which was written as course notes and Huseyin Avni Arapkirli's al-Buġya al-Hasîs fī Tārīh al-Hadīth, which has not been known until discussed it this article for the first time, were focused on. These works are very important in terms of initiating the History of Ḥadīth literature. Furthermore, these are the first works in the field of hadīth in the Turkish Republic, and they are very important sources for revealing the ideological infrastructure of the period. To begin with, it is necessary to attract attention to the change in the course names and duration if there is a need to briefly mention the history of hadīth courses in University. In the universities founded before the opening of the Faculty of Theology, the courses were named as Ḥadīth al-sharīf and usul al-hadīth. Besides, these courses were included in the curriculum for four years, which constituted the duration of the education. In the university founded in 1924 after the proclamation of the Republic, the name was changed as Ḥadīth and the History of Ḥadīth. It is seen that the courses of Hadīth and the History of Hadīth were taught three hours a week for two years from the opening of the Faculty of Theology until 1931. From 1931 until 1933, when the faculty was closed, the courses continued to be given two hours a week. When the content of the works is viewed, it can be seen that Izmirli İsmāʿīl Ḥaqqī followed a historical system in his work History of Ḥadīth. Beginning the subject with the classification of sciences, Izmirli touches upon the topics such as the writing and codification of hadīths. Afterwards, he also deals with the methodology of in detail. He then mentions about the history of hadīth by Shiʿā and draws a general map of the history of hadīth as of the third century of the Islamic calendar. This work differs from the previous tradition of the education of hadīth in terms of including the Shiʿā’s the history of hadīth and especially of ahl al-raʾy’s understanding of the hadīth. In addition, the detailed discussion of hadīth practice in the work is significant in terms of showing that the content of the course did not only cover the history of hadīth.Moreover, it is observed that Izmirli touched upon controversial topics in his work such as the writing of hadīth, Bukhari's criticism and hadīth-history relation. However, Izmirli does not express his approach to these topics so clearly. In doing so, he hides his views between lines, using ambiguous statements related to the topics while trying to base the views on authority. For instance, he says that the hadīths were written on the special pages of the companions in the early periods when it comes to writing hadīths, which was one of the most important topics of the history of hadīth. Even though this gives an impression that the hadīths were written in the companion period, it is stated in the following explanations that the hadīths had not been gathered and written down in one place. Izmirli also says that they refer to the hadīths in the hearts of the companion. In another example, he mentions that there is no doubt about the accuracy of the narrations in Bukhārī's work. However, in the following pages, he states that there are narrators, who are not trustworthy, in Bukhārī's work and says Dāraqutnī's criticisms related to Bukhārī. When the aforementioned two examples are examined, it can be stated that Izmirli acted a bit more cautiously especially in controversial topics. When it comes to Ḥuseyin ʿAvnīʿ Arapkīrli, who starts his work with the classification of sciences as Izmirli does, it is seen that he discusses the part of practice much more briefly. Additionally, he gives more attention to Prophet Muhammad and companion period of the hadīth history. In his work, he also provides detailed information about the formation of the hadīth literature in the third century of the Islamic calendar and afterwards. When the issue is reviewed within the scope of the topics discussed by Ḥuseyin ʿAvnīʿ in his work, it is necessary to mention that the topics related to the history of hadīth were more dominant in the work. Unlike Izmir, he does not allocate much space to controversial topics in his work. However, it should also be noted that he partly touched upon some controversial topics such as hadīth -history relation and writing of hadīths. Ḥuseyin ʿAvnīʿ considers the history of hadīth as a sub-heading of history. Regarding the writing of hadīths, he states openly that the hadīths generally were not written down because of the possibility for them to be mixed up with the Qur’ān in the early periods, and this continued until the time of caliphate ʿÖmer bin ʿAbd al-ʿAzīz. Thus, it can be said that both writers, who applied different methods in their works, looked for a new method. However, it should be remembered that these names were a part of the Ottoman educational system and included in a new system together with their background. Consequently, the fact that they were somewhere between old and new. (shrink)

Theories of ethics that attempt to incorporate divine speech or commands as necessary elements in the construction of moral obligations are often viewed as vulnerable to a challenge based on the so-called Euthyphro dilemma. According to this challenge, opponents of theistic ethics suppose that divine speech either informs one of a preexisting set of values and obligations, which makes it inconsequential, or is entirely arbitrary, which makes it irrational. This essay analyzes some of the debates on the nature of divine (...) commands in eleventh-century works of Islamic jurisprudence. I show that Muʿtazilī jurisprudents advanced the view that divine commands were actions performed in time that had concrete manifestations, while Ashʿarīs argued that divine speech in general, and commands in particular, were eternal divine attributes. After exposing certain weaknesses in the Euthyphro-inspired objections to theistic ethics, I argue that the Ashʿarī idea of commands as divine attributes is a promising move for scholars interested in defending a divine command view of moral obligation. (shrink)

The first poems about the Prophet Muḥammad appeared while he was alive. These first examples, which are panegyrics (madīḥ, i‛tiẕār, fakhr and ris̱ā), largely reflect the characteristics of the pre-Islamic qaṣīda poetry. Due to the developments in the following centuries, the number of poems about the Prophet increased. And thus, a separate literary genre was formed under the name al-madīḥ al-nabawī. Especially the fact that sufi leaning poets contributed to the literary richness in this field. Another factor is the beginning (...) of the tradition of writing mawlid poems in memory of the birth of the Prophet Muḥammad. The thirteenth century was an important period for poems praising the Prophet Muḥammad. Two important poets emerged in this century. One of them is Egyptian poet al-Būṣīrī and the other is Baghdad's famous poet, Yaḥyā al-Ṣarṣarī. Even after his death, Ṣarṣarî’s works with high literary value were read and memorized in the circles of science, literature and Sufism. Due to his competence in the field, al-Ṣarṣarī was known as the poet of the Prophet and Ḥassān b. Thābit of his time. However, it is understood that his poems, which lost their importance in literary circles over time, were not studied as much as they deserved in the modern period. In this article, his life and works are introduced and basic language and stylistic features of his poems are examined. Also, the image of the Prophet in his poems was determined within the framework of the political conditions of the period.Summary: In the field of madīh nabawī, which first appeared in the ‘Asr al-Sa’āda and has continued to the present day, especially two names stand out in the 7th/13th century, when famous poets such as Macduddīn al-Vitrī (d. 662/1264), Ibn al-Muraḥḥal (d. 699/1300) and Ṣafiyyuddīn al-Ḥillī (d. 749/1348) were also raised. One of them is the Egyptian poet al-Būṣīrī (d. 695/1296), who left his mark on the field of madīh nabawī with his many poems, especially Qaṣīda Burda, and the other is the Iraqi poet Yahya al-Ṣarṣarī (d. 656/1258), who was named Shā‘iru Rasūlillāh (The poet of the Prophet) and Ḥassānu Vaḳtihī (Ḥassān of that period) because of the quality of his poems in this field.al-Ṣarṣarī, was born in the village of al-Ṣarṣar, near Baghdad, spent most of his life in the shadow of Baghdad’s political instability and the social collapse that developed in parallel. He was killed in 656/1258 by the Mongolian forces that invaded Baghdad. al-Ṣarṣarī was extremely knowledgeable in fiqh, hadith, language, and ‘ilm al-qirāa. Our poet adopted the views of the Hanbalī law school. In addition, he turned to Sufism and became a murīd (disciple) of Ali ibn Idrīs al-Ya‘kūbī, a student of Abdalqadīr al-Gīlanī who was accepted as the founder of Qādiriyya. He was closely attached to the Sunnah of the Prophet and was fond of reading the Quran. He was chaste and patient and was content with what he had himself. All his works are poetic and they all concern the madīh nabawī or fiqh.Since his poems, almost all of which are about the praise of the Prophet, have a high literary value, they were read, memorized and narrated for a long time in the circles of science, literature and Sufism. In terms of its structure, his poems are based on the traditional forms of Arab qasīda. In the introductory sections of his poems, he often expresses his longing for Madina. The main subject in poems is usually the Prophet and his superior features. In the last part, he usually says salāt for the Prophet and seeks help from him. It can be said that he used simple language in his poems. The vocabulary reflects the characteristics of the urban life in which he lived. The source of inspiration for his poems are the Qur’an and especially the hadith of the Prophet. He uses the potential of literary arts as much as possible while conveying his feelings. But he does not allow the correct information to be lost due to these arts on a serious subject such as depicting the Prophet. We can see a lot of badī‘ (creative) art in some of his poems. But we can immediately understand that these arts do not spoil the beauty of his expression. The poet provides rhythm and harmony in his poetry with the meter and rhyme in accordance with the classical Arabic qasida rules. In addition, he strengthens the musicality in poetry with puns (jinās) and repetition.The influence of the instability of the region where al-Ṣarṣarī lived on his poems is obvious. According to him, the main reason for the terrible situation that Muslims were in was that they were away from the way of the Prophet. He thought that it would be possible to go back to the old peaceful days by following the way of the Prophet. Perhaps as a result of this opinion, he allocated his qasīda to the narration of the Prophet and his Companions. In his poems, he describes the Prophet with his names, superior qualities, physical and moral characteristics. He says that the sentences describing the Prophet are the ornament of poems and believes that praising him is a mean of salvation in the next world. He also hoped that the poems he said in order to achieve spiritual ascension would protect himself against the troubled events of the period.In his poems, especially on the occasion of mawlīd, al-Ṣarṣarī mentions the Prophet’s physical characteristics and likens his smiling face to a bright full moon, his brows to the letter nûn, his teeth to pearls. He describes the Prophet as a man with black eyes, broad shoulders, born with kohl-lined eyes, and who emanates a beautiful scent as a requirement of his creation. The poet, who also touches on the Prophet’s powerful address, states that his speech is more effective than Luqman’s wise words by virtue of his jawami‘ al-kalim (comprehensive speech) and faṣl al-khiṭab (clear speech), and that his soft address, which states nothing other than the truth, is a blessing from Allah. He additionally describes the Prophet’s plain words, easy to understand by all, as more valuable than jewels. al-Ṣarṣarī, who praises the Prophet in terms of morality with basic human virtues such as bashfulness, justice, modesty, and courage, emphasizes that he is, a paragon of patience, perseverance, kindness, and compassion through analogies such as, “his clothes are peace and perseverance”, his “cover is kindness and forgiveness”. In his world of imagery, the Prophet’s benevolence is so abundant like the rain that the clouds cannot compete with him. Also, he does not shame anybody for what he gives. He bestows the most valuable possessions like gold and camels. Even the respectable personalities of the tribe benefit from his grace. He is so generous that he is giving even when the clouds are stingy about giving rain during times of drought. He welcomes with a smile those who approach him with requests. The donations he makes privately are entirely satisfying.The image of prophethood in al-Ṣarṣarī’s poems, is centralized around the thought of nūr Muhammadī (prophetic light) and the miracles of the Prophet. He reminds that the Prophet never gave up despite the calamities he encountered and that he was supported with extraordinary events in various stages of his life since he was born, and reflects the understanding that the prophet is spiritually supporting the community with his nūr, and in the case the community follow his sunnah, overcoming the Mongolian attacks, which seems like a miracle, is possible. The mention of Qattāl (warrior), Māḥī (eliminator of disbelief), Ẓāhir, Ẓāfir, Manṣūr and Muẓaffar (victorious) among the Prophet’s names, especially those that evoke the superiority he gained in his fight against the disbelievers, giving greater prominence to his courage and valor among his virtues are also related to the political and social conditions of the period. The couplets about the Companions of the Prophet following the couplets that describe the Prophet’s valor, the emphasis of their aid to the Prophet, and the particular mention of their fighter spirit may be considered in the same context. Perhaps, in this way, the poet aims to boost the courage of the Muslims who are exposed to Mongolian attacks with respect to protecting their spiritual and holy values against the enemy. (shrink)

One of the basic denominators of Islamic jurisprudence is worship. Man's lifelong adventure of servitude gains meaning only through worship. I’tikāf is one of the acts of worship performed by human beings who want to fulfill their essential duties in this mortal world. In such a way that the servant retreats in seclusion in i’tikāf and approaches his Lord, free from worldly pleasures and desires. For such an act of worship to fulfill its purpose, it must be performed with its (...) conditions and rituals. In this study, the issues related to the worship of i’tikāf according to the Ḥanafī school are explained. The opinions of many jurists, especially the imams of the Ḥanafī sect, are included. This research, which is one of the first Turkish academic studies to examine the views of a sect on the worship of i’tikāf in a comprehensive and detailed manner, is also important because it explains the issues together with their basis in the usūl al-fiqh. Throughout the research, the fiqh sources of the Ḥanafī school were used, and the issues that the jurists agreed on were given from the source that explained the issue with its evidence and revealed its basis in the methodology. In addition, the narrations and procedural issues that are at the basis of the issues and that cause the jurists to disagree are mentioned. First, the definition of i’tikāf was made, then its ruling and its parts were explained. Then, the conditions of i’tikāf are examined and finally, the things that violate i’tikāf are analyzed. (shrink)