Author
ALSAÇ, Hatice
Publication Place
Hits University -
Hits University
Subject
Antinomy, Islamic law, Justice
Type
Book
Language
ara,eng,tur
Digital
Yes
Manuscript
No
Library
Leitir Library
Library Asset ID
ISSN: 2757-6949, EISSN: 2757-6949, DOI: 10.14395/hid.1156814
Record ID
cdi_doaj_primary_oai_doaj_org_article_02d01a8808dc41a497c6aefc55638972
Library Location
DOAJ Directory of Open Access Journals
Notes
Law, as a system that regulates social relations, plays an active role in people's lives. Among the rules regulating social life, legal rules have an important place. This situation is clearly formalized as "Wherever there is society, there is law". Understanding the nature of law requires knowing its functions. Although different functions of law are mentioned, the main prominent functions of law are; to ensure justice, to organize social life and to meet social needs (to provide practical benefit). The fact that law has different functions makes antinomic/contradictory appearances inevitable between these functions. This situation raises the problem of which one should be prioritized when a conflict occurs between the functions of law. What needs to be done is to try to achieve a balance between the different functions of law. Law must follow a balanced and harmonious approach between these functions to achieve the ultimate goal of “the realization of justice.” “Law is defined as an order of social life oriented towards justice”. The purpose of law is to achieve the idea of justice. However, since it is not always possible for justice to be realized spontaneously by people's wishes alone, another intervention is required. This intervention means ensuring legal security and represents an order. Being able to talk about the functions of law in meeting justice and social needs requires that it first emerge as an order. Our study focuses on the connection of universal rules with the functions of law in Islamic law. When we examine the universal rules, whose importance increased with the legalization movements in the history of Islamic law, it is seen that the basic functions of law also find their counterparts in the universal rules. Universal rules, as the product of an attempt to formalize Islamic law, contain content based on different functions of law. Universal rules, as a manifestation of legalization, have clear and precise expression structures. In this respect, it is based on the order function of law. However, when evaluated in terms of content, it is seen that they contain regulations regarding the functions of law to provide practical benefit and ensure justice. For example, the rule "whatever the purpose of a job is, the decision is according to it/al-umūru bi maḳāṣidihā" expresses the function of law to ensure justice by regulating that the will of the person is taken as basis in dispositions. The principle “harm is negligible/eḍ-ḍararu yuzāl” is related to the function of law to provide practical benefits for people, considering the context of benefit and harm. The principle "Hardship attracts taysir/al-meshaḳḳa teclibu't-teysīr" also includes regulations on basic issues such as need, necessity and license in Islamic law. The rule “det muhakkemdir/al-‘āde muḥaḳḳeme” comes to the fore in the context of meeting people's social needs. When the rules are evaluated alone, they express different functions of the law, but when they are evaluated together, it is inevitable that there will be conflict between them. For example, although it depends on the person's intention to be responsible for a person's actions according to the principle of "whatever the purpose of a job is, the decision depends on it", the principle of "damage is deductible" requires compensation liability in case of damage to someone else's property, even if unintentional. The aim of the study is to evaluate the universal rules in Islamic law and the situations referred to as "exceptions to the rules" in the literature, in the context of conflicts between the functions of law. In our study, we first focused on the functions of law and tried to determine how these functions were reflected in universal rules. We exemplified the antinomic views between different functions of law on the basis of universal rules in Islamic law. In antinomic situations that arise between universal rules, we tried to point out higher values such as higher particular norms, customs and traditions, necessity and need, which are taken into account when choosing between the functions of law. Among the sources of the study are Mecelle and Mecelle's commentaries, which contain the final version of the universal rules. When necessary, we consulted works written on kavaid literature and classical fiqh sources to exemplify universal rules. Regarding the functions of law, we benefited from the works of important names who have studies on law. Law, as a system that regulates social relations, takes an active part in people's lives. Law rules have an important place among other rules regulating social life. The statement that “Where there is society, there is law” clearly formalizes this fact. Understanding the character of law requires knowing its functions. The main functions of law are to provide justice, organize community life, and achieve practical benefits. The fact that law has various functions makes antinomic appearances inevitable. This brings up the problem of which function should be prioritized when antinomy occurs among the functions of law. In order for the law to achieve its ultimate goal of “realization of justice”, it needs to follow a balanced and harmonious approach between these functions. Law is defined as “a social life order oriented towards justice”. The purpose of law is to reach the idea of justice. Justice cannot always be achieved by people's wishes alone. For this reason, another intervention is required. This intervention means ensuring legal security and expressing an order. Being able to talk about the functions of law to provide justice and to meet social needs, the law must emerge as an order. Our study focuses on connection between “legal maxims” (al-qawāid al-qulliyya) of Islamic law with the functions of law. When we examine the “legal maxims” of Islamic law, whose importance has increased with the codification movements in the history of Islamic law, we see that the main functions of law are also found in the “legal maxims”. “Legal maxims” are the product of trying to put Islamic law into a formal order and have contents based on various functions of law. “Legal maxims” as an indicator of coding have clear and precise expression structures. In this respect, “legal maxims” are primarily based on the order function of law. When evaluated in terms of content, it is seen that the “legal maxims” include regulations regarding the functions of law to provide practical benefits and to provide justice. For instance, the maxim of "al-umūru bi maqāṣidihā" regulates the will of the person in the dispositions and it expresses the function of law to provide justice; the maxim of "al-ḍararu yuzāl", when considering the context of benefit and harm, expresses the function of law to provide practical benefits for people; the maxim of "al-mashaqqa tajlibu al-taysīr" also includes regulations on fundamental issues such as need, necessity, and permission in Islamic law; or, the maxim of "al-‘āda muḥaḳḳama" comes to the fore in relation to meeting the social needs of people. When the “legal maxims” are evaluated one by one, we come to see that they express different functions of the law, and when they are considered together, there appears an inevitable antinomy between them. For example, according to the maxim of "al-umūru bi maqāṣidihā", responsibility for one's actions depends on one's intentions. On the other hand, the maxim of "al-ḍararu yuzāl" requires compensation liability in case of damaging to someone else's property, albeit unintentionally. The study aims to evaluate the “legal maxims” in Islamic law, and the situations referred to as "legal maxim's exceptions" in the context of antinomy between their functions. In our study, we have primarily focused on the functions of law and tried to determine how these functions correspond to the “legal maxims”. We have exemplified the antinomic aspects between the functions of law on the basis of “legal maxims” in Islamic law. We tried to point out the high values such as special norms, customs and traditions of the people, necessities, and needs, which are taken into account when choosing between the functions of law in antinomic situations that arise between the “legal maxims”. Among the study, sources are al-Majalla, which include the final version of the “legal maxims”, and the commentaries of al-Majalla. We have also consulted the works in the literature of “legal maxims” when necessary, and classical fiqh sources to exemplify the “legal maxims”. Regarding the functions of law, we have benefited from the works of influential scholars who have studies the law.
Detaylı Başlık
İslâm Hukukunda Küllî Kâidelerin Hukukun İşlevleri Arasındaki Antinomi/Çatışma Bağlamında Değerlendirilmesi
