Author
Turcan, Talip
Publication Place
Hits University -
Hits University
Subject
Hittite Journal of Theology, 2024-06, Vol.23 (1), p.111-134
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.1428114
Record ID
cdi_doaj_primary_oai_doaj_org_article_18ae3357bea546918a91af4210e00686
Library Location
DOAJ Directory of Open Access Journals (WRLC)
Notes
In the history of legal thought, various tendencies have emerged in defining the concept of legal validity, depending on the criteria adopted. Legal validity has been subject to axiological, material and formal evaluations, alternative to each other. Legal validity is reduced to fairness when axiological evaluation is made, to effectiveness when material evaluation is made, and to belonging to a certain legal order when formal evaluation is made. The criteria of fairness, effectiveness or belonging, when taken as alternatives to each other, are not sufficient to define legality, that is, to distinguish law from other normative structures, and they also lead to an overlap between the concepts of legality and legal validity. What is fair in the natural law tendency and effective in the realist law tendency is considered both legal and valid. The positivist legal tendency, on the other hand, defines legal validity as belonging to a certain legal order, which in fact cannot distinguish it from legality. In this respect, legal validity is tried to be grasped as an additional quality to legality, in the positivist tendency, based on the conditions regarding invalidity. In Islamic jurisprudence, legal validity is accepted as a formal evaluation, not axiological or material. This is a natural and necessary consequence of the principle of Sharia, on which the general theory of law is based. Any norm that does not have a Sharia character is not considered valid merely on the grounds that it is fair or effective. Determination of Sharia law is a matter of authority and procedure. al-Tufi's maslaha and Ibn Qayyim al-Jawziyya's validity approaches, which take justice as a criterion, constitute an exception to the general approach in Islamic jurisprudence. We find a similar exception in the Hanafi view, which regards the effectiveness of the legal order as a whole as a condition for the continued validity of individual norms. This view seems comparable to positivist theory, which concerns the validity of norms and the effectiveness of the legal order as a whole. In the classical doctrine of Islamic jurisprudence, an opinion constructed at the theoretical level that a legal norm will lose its validity due to abandonment is, as far as we know, only written by Abu Mansur Muhammad b. It was defended by Muhammed es-Samarkandî el-Mâturîdî. Al-Māturīdī explains his view of abandonment as a reason for the invalidity of legal norms through the interpretation of the 10th verse of the Surah al-Mumtahīna and by taking as evidence the abandonment of the regulations envisaged in the verse. Abandonment means that a norm loses its effectiveness. As a matter of fact, al-Māturīdī defines abandonment as people abandoning the practice of the norm. In al-Māturīdī's theory, although abandonment is a reason for invalidity in terms of legal norms, it is not absolute. It is foreseen as a reason for invalidity that the norm is not subject to mere abandonment, but only the abandonment that occurs under certain conditions. Accordingly, for a norm to be deemed invalid due to abandonment, a. There is no statement in the Book or Sunnah showing that the norm is invalid, b. The reason for imposing the norm (the purpose pursued when imposing the norm) is mentally comprehensible (the provision is reasonable), c. There is an agreement (ijma) of people to abandon applying the norm or complying with the norm, d. The norm is about an event with a limited context of social relations (hukm urf: it is a special regulation regarding a certain social practice), e. Conditions such as the fact that the reason for its imposition has subsequently disappeared must be fulfilled together within the same norm. The fact that he covers the concept of invalidity due to abandonment with the term abrogation implies that al-Māturīdī is of the opinion that the relevant norm will not be valid again. Because he sees invalidity due to abandonment as possible only for the norms that regulate events with a limited context of social relations. When this is taken in the sense of norms that deal with events that will not take place in social life again after their disappearance, the conclusion we draw is confirmed. In al-Māturīdī's theory, abrogation due to abandonment represents, in our opinion, a different form of realization of invalidity that cannot be reduced to abrogation through ijtihad. Abrogation through ijtihad means deciding on the invalidity of the norm through a voluntary action because the reason for its referral disappears over time. Although the norm is still applicable to the social relationship it is about, it is deemed invalid because it no longer fulfills the reason for which it was referred. However, abrogation due to abandonment is a completely factual type of invalidity. Not only the reason for referring the norm, but also the context of social relations has disappeared.
Detaylı Başlık
el-Mâturîdî’de Hukuk Normlarının Geçersizlik Sebebi Olarak Metrûkiyet
