Author
And, Ayhan
Publication Place
University of Afyon Kocatepe -
University of Afyon Kocatepe
Subject
Islamic law, Justice, Natural law
Type
Book
Language
ara,eng
Digital
Yes
Manuscript
No
Library
Leitir Library
Library Asset ID
ISSN: 2757-8399, EISSN: 2757-8399, DOI: 10.52637/kiid.1182397
Record ID
cdi_doaj_primary_oai_doaj_org_article_5f43768d983344659e9d3220bb51abd1
Library Location
DOAJ (Directory of Open Access Journals)
Notes
In this article, first of all, the basic ideas that are put forward in the context of the natural law movement, that there is a law that is desired to be achieved beyond the law imposed by the state, that it is accepted as universal for all people and nations because it is a more perfect and higher law compared to all positive law systems, that it consists of the sum of some high rules that find their validity in their own essence, that it is an inexhaustible source and control mechanism for positive law, and that the understanding of natural law is the pioneer of advances in the field of law. Afterwards, Socrates, who was one of the first advocates of natural law with his approaches to morality, justice and virtue, starting from Heraclitus, Sophocles, who stated that administrative orders were not strong enough to exceed divine orders, Plato, who defended natural law by transferring the distinction between the world of senses and the world of ideas, Aristotle, who saw natural law as a guide in the interpretation of positive law, who said that natural law covers all people and that law originates from the nature of people and things, not from human will. The historical course of natural law is conveyed by discussing Cicero, Grotius, who said that the first basic principle of natural law is pacta fidelity, Pufendorf, who gave more space to God in the thought of natural law, and natural law thinkers of the eighteenth and nineteenth centuries. Following this, the basic ideas defended in the natural law approach were analyzed under five headings from the perspective of Islamic law. In the first heading, on the axis of different approaches such as human nature, the nature of things, divine will and human mind, it is stated that focusing on the activity of ijtihad as focusing on the human soul and searching for the idea of justice in the human soul means taking an opposing stance regarding the essence of the fiqh procedure, that reason is not the absolute evidence of the law, that the activity of the mind is not in the form of making judgments independently, but in the form of discovering and revealing the meanings inherent in the texts, that the source of law is divine. The issue of the source of law is discussed, emphasizing that it will be explained by divine will, not by reason. In the second title, the distinction between the law and the law that should be is discussed, stating that if there is a consensus of the ummah on a provision, that provision is ideal, that a more ideal one will not be sought in that regard, and that no jurisprudential provision is accepted as the absolute and indisputable judgment of Islam. In the third heading, the issue of husun-kubuh is one of the ancient areas of disagreement among the ulema, that the mind's knowledge of what is good and producing binding knowledge on this issue makes it possible to characterize the mind as an independent source of law, that it is not possible to talk about a legal rule that finds its validity in its own substance, as defended in natural law in terms of the Ash'ari approach in Islamic law, and that in terms of the Maturidi approach, it is not one of the legal rules that "find their validity in their own essence", but "the validity of which is confirmed by its own substance". It is stated that the "law rules" can be mentioned, that good and evil exist essentially in actions and things, that the mind knows good and evil and that this is binding knowledge, overlaps with the approach defended in natural law with the approach of Mutezile, and that it is not possible to limit the divine will with any principle or rule in terms of Sunni theology and Islamic law, and the higher legal rules that find their validity in their own essence are evaluated. In the fourth heading, some effective factors create inevitable areas of differentiation between justice and law in both the creation and implementation of rules, it is not possible to see one of the jurisprudences as superior to the other on a theoretical plane, nor is it possible to see the level of justice achieved with any of these jurisprudence as being further than that achieved with the other, all criteria of legality are subject to the divine will, and therefore to the criterion of conformity with the Book and the Sunnah, a justice that is above the divine will, controls and limits it. It was emphasized that the law-justice relationship cannot be mentioned as a criterion. In the fifth title, it is analyzed that natural law is seen as a criterion of legal value and a pioneer of progress, stating that the understanding and freedom of jurisprudence is the pioneer of progress in terms of Islamic law. The article is completed with the presentation of the results achieved. In this article, first of all, the basic ideas put forward in the context of the natural law movement are given: that there is a legal order that is desired to be achieved alongside or above the law created by the state, that it is accepted as generally valid for all people and nations because it is a more perfect and higher law as opposed to all positive legal systems, that it consists of the sum of some high rules that find its validity in its own essence, that it is an inexhaustible source and control mechanism for positive law, and that the understanding of natural law is the pioneer of advances in the field of law. Then, starting with Heraclitus, Socrates, who was one of the pioneers of natural law with his defense of the concepts of morality, virtue and justice; Sophocles, who stated that the administrative commands were never powerful enough to override divine commands; Plato, who defended natural law by reflecting the distinction between the world of ideas and the world of senses, which is the basis of his philosophy, to the field of law; Aristotle, who saw natural law as a guide in the interpretation of positive law, Cicero, who stated that natural law covers all human beings, that law arises not from human will but from the nature of human beings and things, Grotius, who stated that the first basic principle of natural law is loyalty to the covenant, Pufendorf, who gave more place to god in natural law thought, and natural law thinkers of the eighteenth and nineteenth centuries, the historical course of natural law has been conveyed. After that, the basic ideas defended in the natural law approach are analyzed under five headings from the perspective of Islamic law. In the first heading, in the axis of different approaches to the source of law as human nature, the nature of things, the divine will, and the human intellect, it was argued that focusing on the activity of ijtihad on the human soul and characterizing it as a search for the ideal of justice in the human soul means taking an oppositional stance regarding the essence of the method of fiqh, It was dealt with by emphasizing that the intellect is not the absolute proof of law, that the activity of the intellect is not in the form of making judgments independently but in the form of discovering and revealing what exists in the nass, and that the source of law is explained by the divine will, not the divine intellect. In the second heading, the distinction between the law as it is and the law as it should be discussed by stating that if there is the ijma of the ummah on a rulings, that rulings is ideal, that one should not search for a more ideal one, and that no ijtihadi rulings is accepted as the absolute, undisputed rulings of Islam. In the third heading, it is stated that the issue of al-husn and al-qubh is one of the ancient areas of dispute among the ulema, that the intellect's knowing what is hasen and producing binding knowledge in this regard will make it possible to characterize the intellect as an independent source of law, that it will not be possible to speak of a rule of law that finds its validity in its own substance as advocated in natural law in terms of the Ash'ari approach in Islamic law, and that it is not possible to speak of rules of law that find their validity in their own substance, in terms of the Maturidi approach, the approach of Mutazila, which states that good and evil exist essentially in acts and things, that the intellect can know good and evil and that this is binding knowledge, and the approach defended in natural law overlap, and that it is not possible to limit the divine will with any principle or rule in terms of Sunni theology and Islamic law, and the high legal rules that find their validity in their own substance are evaluated. In the fourth heading, it is stated that some factors that are effective in the process of both the formulation and implementation of rules create inevitable areas of differentiation between justice and law, and that it is not possible to see one jurisprudence as superior to the other on a theoretical level, nor is it possible to see the level of justice achieved by any of these jurisprudences as more advanced than that achieved by the other. The fifth chapter analyzes the view of natural law as the criterion of legal value and the pioneer of progress by stating that the ijtihad understanding and freedom of jurisprudence is the pioneer of progress in terms of Islamic law. The study was completed with the presentation of the results obtained.
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