Bedir 2004
Bedir 2004
MURTEZA BEDIR
Abstract
© Koninklijke Brill NV, Leiden, 2004 Islamic Law and Society 11, 3
Also available online – www.brill.nl
2
On the term, see Norman Calder, ‘Shari‘a’, EI 2.
3
Joseph Schacht, An Introduction to Islamic Law (Oxford: University Press,
1964), 4.
4
On the infiltration of Western ideas into Ottoman intellectual life in the
period of the Tanzimat, see ”erif Mardin, The Genesis of Young Ottoman Thought:
A Study in the Modernization of Turkish Political Ideas (Princeton: Princeton University
Press, 1962); Niyazi Berkes, The Development of Secularism in Turkey (London: Hurst
& Company, 1998), esp. 89-250; Bernard Lewis, The Emergence of Modern Turkey
(London: Oxford University Press, 1961), esp. 21-125.
5
For this code, see M. Akif AydÌn, `slam-OsmanlÌ Aile Hukuku (Istanbul:
M. Ü. `lahiyat Fakültesi VakfÌ YayÌnlarÌ, 1985).
6
This text was first published by Istanbul University, Faculty of Law, 1949-
52 in six volumes, and later reproduced many times.
Historical developments
The terms ‘fÌkÌh’ and ‘âeriat’ are the most general and comprehensive
of the four terms that are the subject of this essay. Each has a
specifically Islamic origin.
What distinguishes ‘âeriat’ from ‘law’ as we understand it today is
not only the generality of the Islamic term, but also the fact that
it is primarily addressed to the individual Muslim and has been
systematized in a distinct manner. That is why, until the 1908
revolution, Ottoman medreses never came to terms with the idea of
‘law’7 and accepted no course on European law (hukuk) into their
curriculum,8 despite the fact that western laws had become part of
state law beginning with the Tanzimat edict of 1839.9 It is worthy
of note that the Mecelle (1869-1876), the first codification of certain
fÌkÌh legal provisions, did not make its way into the curriculum of
mainstream medreses,10 despite attempts by the Ottoman government
7
The situation reminds us of England, where law was initially treated as
an apprenticeship rather than as a science and universities therefore resisted
the inclusion of law in their curricula. Although Muslims did accept fÌkÌh as a
science as early as the first century of Islam, the practice of law as a civil activity,
due to its religious character, usually remained outside the scholarly sphere.
8
On the reforms of the medrese curriculum, see Osman Ergin, Türkiye Maarif
Tarihi, 5 vols. (`stanbul: Eser MatbaasÌ, 1977), I, 121-31; Mübahat S. KütükoÅlu,
‘Darü’l-Hilafeti’l-Aliyye Medresesi ve Kuruluâu Arefesinde `stanbul Medreseleri’,
`stanbul Üniversitesi Edebiyat Fakültesi `slam Tedkikleri Enstitüsü Dergisi, 7 (1978), 1-
14.
9
Beginning in the 1940s the Ottoman government introduced a number of
codes based on Western codes, including a new Penal Code (1844), Commercial
Code (1850), and a Maritime Trade Code (1863); it also created a new court
system, Nizamiye Mahkemeleri. See Berkes, Development, 160-3; Zürcher, TURKEY:
A Modern History (London: I.B. Tauris & Co Ltd, 1993), 64-5; Coâkun Üçok,
Türk Hukuk Tarihi Dersleri (Ankara: Ankara Üniversitesi Hukuk Fakültesi YayÌnlarÌ,
1972), 182-96; Gülnihal Bozkurt, BatÌ Hukukunun Türkiye’de Benimsenmesi: OsmanlÌ
Devleti’nden Türkiye Cumhuriyeti’ne Resepsiyon Süreci (1839-1939) (Ankara: Türk Tarih
Kurumu YayÌnlarÌ, 1996), 48f.
10
This indifference to what is going on in actual life is not unfamiliar; indeed
it was one of the most striking features of the classical fiqh tradition, which
persists in the teaching of fiqh in contemporary settings. See N. Calder, ‘Law’,
in History of Islamic Philosophy, ed. Seyyed Hossein Nasr and Oliver Leaman
(London and New York: Routledge, 1996), 979-98.
to familiarize judicial personnel with the new legal codes and concepts.
When the Muallimhane-i or Mekteb-i Nüvvab (School of Judges) was
opened in 1854, the only courses relating to the practice of law
were those on sakk (the drafting of legal petitions) and ta‘lik (the
script used in courts);11 this school offered many courses on Ottoman
and European law, and in 1908 it was renamed Medresetü’l-Kuzat.12
In the same year, the first reforms of the medreses were undertaken,
but the reformers did not dare to touch the traditional curriculum.13
It was only after the radical reform of 1914 that courses on modern
law began to be taught in medreses.14
The Tanzimat leaders, especially, Ahmet Cevdet Paâa, advocated
the creation of a school of law that would teach modern legal
subjects,15 e.g. Mecelle and Land Law (Arazi Kanunu), in addition to
Ottoman kanuns, a project that was realized in 187416 with the
establishment of a new school of law, the Mekteb-i Hukuk. The courses
taught in this new law school include: (1) traditional fÌkÌh subjects,
such as interpersonal relations (fÌkhÌn muamelat kÌsmÌ), legal theory
(usul-i fÌkÌh), laws relating to religious endowments (ahkam-Ì evkaf),
bequests (vasiyet), inheritance (feraiz); (2) western subjects, such as an
introduction to the science of law (Medhal-i ilmi hukuk) (both Islamic
and western), international law (Hukuk-i Düvel), the history of the
international law (Tarih-i hukuk-Ì düvel), philosophy of law (Hikmet-i
hukuk), Roman law (RomalÌlarÌn Kanununu), and the French Civil Code
(FransÌzlarÌn hukuk-i adiye kanunnamesi); and (3) Ottoman law, such as
11
Ergin, Türkiye Maarif Tarihi, I, 159.
12
Ibid. On the politics of this name change, see now Jun Akiba, “A New
School for Qadis: Education of the Sharia Judges in the Late Otoman Empire”,
TURCICA, 35 (2003), 153-5.
13
The innovation was restricted by having only two courses with a western
outlook: the history of fiqh (Tarih-i `lm-i FÌkÌh) and the philosophy of legislation
(Hikmet-i Teâri). See Ergin, Türkiye Maarif Tarihi, I, 121-2.
14
Ibid, I, 128-31; M. S. KütükoÅlu, ‘Darü’l-Hilafeti’l-Aliyye Medresesi’, 5-
11. In a recent study based on archival sources, however, Jun Akiba has argued
that the reform of the curriculum of Mekteb-i Nüvvab started before the 1908
Revolution. See Jun Akiba, “A New School for Qadis”, 148-53.
15
The 1869 Educational Regulation (Maarif Nizamnamesi) already stipulated
that Roman and French laws were to be taught alongside Islamic legal subjects
in Darülfunun-i Osmani, but this was not put into practice. See Ali Arslan,
Darülfünun’dan Üniversite’ye (`stanbul: Kitabevi, 1995), 36; Cemil Bilsel, `stanbul
Üniversitesi Tarihi (`stanbul Kenan MatbaasÌ, 1943), 56-7.
16
Arslan, Darülfünun’dan Üniversite’ye, 38-9; Bilsel, `stanbul Üniversitesi Tarihi,
21.
Mecelle-i Ahkam-Ì Adliye, the Penal Code (Ceza Kanunnamesi), and the
Land Law Code (Arazi kanunnamesi).17
The Ottomans recognized the âeriat, in theory, as the main law
of the land. In practice, however, the Sultan acted as a promulgator
of laws. It is well known that the idea of governmental legislation
is alien to classical Islamic legal theory; after all, modern students
of Islam characterize Islamic law as a typical representative of a
jurists’ law,18 i.e. law promulgated and interpreted by members of
the religious elite whose authority derives not from their appointment
by a ruler but from their scholarly qualifications. Thus, sultanic
promulgations, which sometimes interfered with the ”eriat, generally
were regarded as legislation outside the domain of fÌkÌh.19 In classical
Ottoman law, the office of NiâancÌ was responsible for the preparation
of kanuns.20 However, from the perspective of classical Islamic law
there is no positive recognition of kanun, only a negative one under
the categories of siyaset and ta’zir (the prerogative of the sultan to
introduce extra-âer‘i regulations).21 This situation remained unchanged
until the Tanzimat. It is possible that new conditions resulted in
the transformation of the traditional Office of NiâancÌ into an office
that came to be responsible for the regulation of new codes, called
17
Arslan, Darülfünun’dan Üniversite’ye, 42-3; Bilsel, `stanbul Üniversitesi, 22-4;
Ergin, Türkiye Maarif Tarihi, III-IV, 1104-5.
18
See, for example, Schacht, Introduction, 209.
19
For the relation of âeriat to the kanunnames, see Ömer Lütfi Barkan, OsmanlÌ
Devleti’nin Sosyal ve Ekonomik Tarihi, Tetkikler-Makaleler, ed. Hüseyin ÖzdeÅer, 2
vols. (`stanbul: `stanbul Üniversitesi YayÌnlarÌ, 2000), II, 1330-51, 1381-1401;
H. `nalcÌk, ‘OsmanlÌ Hukukuna Giriâ’, in Ankara Üniversitesi Siyasal Bilgiler Fakültesi
Dergisi, 13 (1958), 102-26; idem, ‘Kanunname’ in EI 2; U. Heyd, Studies in Old
Ottoman Criminal Law, ed. V. L. Menage (Oxford: Clarendon Press, 1973), 167-
207; M. Akif AydÌn, Türk Hukuk Tarihi, 2nd rev. ed. (`stanbul: Beta, 1996), 73-
84; Colin Imber, Ebu’s-su‘ud: The Islamic Legal Tradition (Edinburgh: Edinburgh
University Press, 1997), 24-62.
20
In the 16th century, Kanunnames were prepared under the supervision of
the office of NiâancÌ. This led a prominent Ottoman intellectual, Gelibolulu
Mustafa Ali, to compare it with the office of âeyhülislam. See Cornell H. Fleischer,
Bureaucrat and Intellectual in the Ottoman Empire: The Historian Mustafa Âli (1541-
1600) (Princeton: Princeton University Press, 1986), 92-5, 220, 227-8; see also
`nalcÌk, ‘Kanun’, EI 2; idem, ‘Suleiman the Lawgiver and Ottoman Law’, Archivum
Ottomanicum I (1969), 115-6. See also M. Akif AydÌn, Türk Hukuk Tarihi, 81.
21
Many Muslim jurists, including Ibn Taymiyya and his pupil Ibn Qayyim
al-Jawziyya, tried to reconcile the classical theory of âeriat with the prerogative
of rulers, which was also the pattern in the Ottoman world; see, Heyd, Studies,
198-204; F. E. Vogel, ‘Siyasa’, EI 2.
Meclis-i Valay-Ì Ahkam-Ì Adliye (The High Council for Judicial Regula-
tions), which was established after the Tanzimat Edict,22 and its later
versions (Meclis-i Tanzimat = Office of Regulations, established in
1854, and Divan-Ì Ahkam-Ì Adliye= Office of Judicial Ordinances,
established in 1868).23
During the Tanzimat period, a number of legal codes were prepared
in these institutions and then promulgated by the sultan.24 These
institutions employed not only scholars trained in modern laws but
also members of the Ulema class, most notably Ahmet Cevdet Paâa.
It was Cevdet Paâa who proposed a solution to the tension between
the theoretical recognition of âeriat as the exclusive law of the land
and the de facto status and importance of non-âer‘i codification, which
reached its peak towards the end of the 1860s.25 He accepted the
Young Ottoman idea that fÌkÌh is compatible with modern needs
and that it therefore is perfectly reasonable to codify it as a code.26
This was a conceptual innovation, arguably the most important
departure ever made from the traditional understanding of fÌkÌh.
For the first time in the history of fÌkÌh, sultanic legislation entered
into the domain of âer‘i law and specified a legal text produced
from the classical fÌkÌh works as the law of the land. It was most
probably the Ottoman legal tradition that facilitated this transition
from a purely jurists law’ to state-law, as the great Ottoman âeyhülislam
Ebu’s-su‘ud (d. 982/1574) recognized that, in disputed matters, the
sultan has the power to enforce one of the existing views in the fÌkÌh
books and his enactments are binding.27 Ebu’s-su‘ud’s impact on
subsequent Ottoman legal thought is well known.28 Whether or not
22
Zürcher, TURKEY, 43-4, 64-5; Berkes, Secularization, 94-5.
23
Üçok, Türk Hukuk Tarihi Dersleri, 195-6; Bozkurt, BatÌ Hukukunun Türkiye’de
Benimsenmesi, 134f.
24
Zürcher, TURKEY, 43-4; Berkes, Secularization, 95; Bozkurt, BatÌ Hukukunun
Türkiye’de Benimsenmesi, 134.
25
For the debate on the codification of civil law in the Tanzimat period, see
Ebü’l-Ulâ Mardin, Medenî Hukuk Cephesinden Ahmet Cevdet Paâa (1822-1895):
Ölümünün 50 nci YÌldönümü Vesilesiyle (`stanbul: `stanbul Üniversitesi Hukuk
Fakültesi YayÌnlarÌ, 1946), 61-5; Berkes, Secularization, 165-9; Bozkurt, BatÌ
Hukukunun Türkiye’de Benimsenmesi, 159-61.
26
For the views of the Young Ottomans on the value of fÌkÌh tradition for
the practical needs of the 19th century Ottoman state, see Mardin, Genesis, 163-
4, 313-9, 370-1.
27
Barkan, OsmanlÌ Devleti’nin Sosyal ve Ekonomik Tarihi, Tetkikler-Makaleler, 1388-
91; Imber, Ebu’-su‘ud, 106-10.
28
Imber, Ebu’-su‘ud.
29
Ebü’l-Ulâ Mardin, Medenî Hukuk Cephesinden Ahmet Cevdet Paâa, 61. The
original work of Devvani, called Risale der Divan-i Mezalim, was written in Persian,
and Cevdet Paâa prepared a summary translation of it into Turkish. The text
was recorded by Cevdet Paâa in his memoirs; see A. Cevdet Paâa, Tezakir, ed.
M. Cavid Baysun, 4 vols. (Ankara: Türk Tarih Kurumu YayÌnlarÌ, 1953-57),
IV, 85-90.
30
For Ahmet Cevdet Paâa, see Ebü’l-Ulâ Mardin, Medenî Hukuk Cephesinden
Ahmet Cevdet Paâa; Christoph K. Neumann, Araç Tarih Amaç Tanzimat: Tarih-i
Cevdet’in Siyasi AnlamÌ, tr. from German by Meltem Arun (`stanbul: Tarih VakfÌ
Yurt YayÌnlarÌ, 1999), esp. 208-15.
31
Berkes, Development, 411-6; Zürcher, TURKEY, 125.
32
On the preparation of the Mecelle, see Ebü’l-Ulâ Mardin, Medenî Hukuk
Cephesinden Ahmet Cevdet Paâa.
33
The standard Hanefi legal texts specify that the judge must be a müctehid
(mujtahid); a non-müctehid may be appointed as a judge only if there is no müctehid
and with certain reservations; see for example, Ali b. Ebi Bekr el-MerÅinani,
el-Hidaye ”erh Bidayeti’l-Mübtedi, ed. M. Muhammed Tamir and H. Aâur HafÌz,
4 vols. (Cairo: Daru’s-Selam, 1420/2000), III, 1067-68.
34
Weber called this system of justice kadijustiz, meaning that Islamic law
does not advance a formal system of justice due to the excessive leeway for
interpretation given to the judges. See Max Weber, Economy and Society: An Outline
of Interpretive Sociology, tr. from German by Guenther Roth and Claus Wittich
(Berkeley: University of California Press, 1978). For an evaluation of Weber’s
ideas, see Baber Johansen, Contingency in a Sacred Law: Legal and Ethical Norms in
the Muslim Fiqh (Leiden: Brill, 1998), 46-51; on kadijustiz, see now D. Powers,
Law, Society, and Culture in the Maghrib, 1300-1500 (Cambridge, 2002), chap. 1.
35
An interesting treatise that deals with limiting the judge’s discretion was
written by the 19th century Damascene Hanefi scholar, Muhammed Emin b.
Ömer, better known as Ibn Abidin (1306/1888). See his, ”erh Ukud Resmi’l-
Müfti, published in Resail Ibn Abidin (Beirut: Dar `hyai’t-Türasi’l-‘Arabi, n.d.),
10-52.
what they called the ‘preferred’ view (esahh, zahir, racih) as the dominant
opinion of the school. However, the process of establishing the
preferred view did not always follow the guidelines laid down in
usul-i fÌkÌh treatises, for judges and jurists frequently took into
consideration local practice, the specific context of individual cases,
and other extra-legal considerations. The fundamental principle
that guided the Muslim jurist or fakih was his reliance on earlier
school authorities and legal maxims coined by jurists over the
centuries, in addition to Kitab and Sunna.36
Although all of the provisions formulated by the Mecelle Committee
in the 19th century were more or less in conformity with the recognized
opinions of the Hanefi school, the formulation of the preferred
opinion was now more explicitly driven by a new consideration.
The authors of the Mecelle articulated this new idea in the memo-
randum that accompanied each of its sixteen books, as follows: nasa
erfak ve asrÌn maslahatÌna evfak, i.e., ‘that which is easiest for the people
and the most suitable for contemporary needs’.37 And they used
this Hanefi maxim as the sole justification for their singling out a
particular opinion and promulgating it as the law on a given case.
In the context of the present study, one of the most striking features
of the Mecelle is that its scope was generally restricted to civil and
procedural law. Family law would not be codified until the promul-
gation of the 1917 Code of Family Law (Hukuk-u Aile Kararnamesi).
The authors of the 1917 code went beyond the Hanefi school,
drawing materials from other schools in order to increase the chances
of finding solutions that were in accordance with the needs of the
time. This method, called telfik or tehayyur, would subsequently be
employed in the production of new works on fÌkÌh38 and in the
36
On legal maxims, see el-Eâbah ve’n-Nezair by Zeynüddin Zeyn b. `brahim,
better known as `bn Nüceym, ed. Muhammed Muti‘ HafÌz (DÌmaâk: Darü’l-
Fikr, 1983). These maxims were incorporated into the Mecelle as an Introduction
that includes 100 of its 1851 articles.
37
This statement is found in each of the sixteen books of the Mecelle as follows:
‘Bu Mecellede mezheb-i Hanefinin haricine çÌkÌlmayÌp ve mevadd-Ì
mündericesinin ekseri elhaletü hazihi fetvahanede muteber ve mamülün
bih olduÅu cihetle bunlar hakkÌnda bahse lüzum görülmeyip fakat gine
fukaha-i Hanefiyeden bazÌ fuhul-u eyimmenin akval-i muteberesi nase
erfak ve maslahat-Ì asra evfak olmasÌ hasebiyle ihtiyar olunmuâ…’ (italics
mine).
See Ebü’l-Ulâ Mardin, Medenî Hukuk Cephesinden Ahmet Cevdet Paâa, 67ff.
38
Until the end of the 19th century the production of fÌkÌh texts in the Sunni
tradition usually followed one of the four schools of fÌkÌh, so that the author of
preparation of the civil law codes of Egypt, Syria, Iraq, Libya and
other states.39
When we assess this development in the light of traditional fÌkÌh,
several interesting points emerge. First, the comprehensiveness of
traditional fÌkÌh was sacrificed for the sake of conformity with modern
concepts of law. Second, the choice of a particular rule was no
longer guided by the dictates of legal reasoning, but by the needs
of modern times (recall the recurring phrase of the Mecelle: nasa
erfak ve asrÌn maslahatÌna evfak). The men who drafted the Mecelle
must have assumed that the fÌkÌh doctrine in its entirety is based on
âer‘i reasoning and that whatever aspect of this doctrine is chosen
for inclusion in the new codes naturally will be in conformity with
this reasoning. What was accomplished in later codifications, in
fact, was nothing more than the justification of modern conditions
by reference to fÌkÌh, since, in the end, the outcome was more in
line with contemporary European codes than with traditional fÌkÌh.
However, for the sake of legitimacy, reference to fÌkÌh was always
seen as necessary.
To sum up, the process that started with the Mecelle and continued
with the promulgation of new law codes transformed the âeriat itself
into one of the objects of legal reform. I turn now to the effects of
the objectification40 of âeriat upon the curriculum of Turkish universities.
a given text remained loyal to his school and tried to refute the positions of the
other school(s). In modern times, this approach has been rejected as blind
imitation (taqlid), and a new trend has emerged: the authors of new fÌkÌh works
tend to prefer one of several views on a given matter on the basis of supposedly
free thinking and objective method. The criterion that they used was not always
different from that followed by the authors of Mecelle, i.e. that which is easiest
for people and most suitable for contemporary needs. As an example, see
Mahmud Muhammed ”eltut and Muhammed Ali es-Sais, Muqaranatü’l-Mezahib
fi’l-FÌkÌh (Cairo: Matba‘at Muhammed Ali Sabih we Ewladuh, 1373/1953);
Mustafa Ahmed ez-Zerka’, el-Medhalu’l-FÌkhi’l-‘Amm: el-FÌkhu’l-Islami fî Sevbihi’l-
Cedîd, 3 vols. (9th ed., Dimaâk: Daru’l-Fikr, 1967-68).
39
See Noel J. Coulson, A History of Islamic Law (Edinburgh: Edinburgh
University Press, 1964), 185-201.
40
On objectification, see Dale F. Eickelman and James Piscatori, Muslim Politics
(Princeton: Princeton University Press, 1996), 37-45.
45
`smail Kara (ed.), Türkiye’de `slamcÌlÌk Düâüncesi: Metinler / Kiâiler, 3 vols.
(`stanbul: Risale, 1986), I, lx-lxi.
46
Niyazi Berkes, ‘Gökalp, Ziya’, EI 2.
47
Recep ”entürk, `slam DünyasÌnda Modernleâme ve Toplumbilim: Türkiye ve MÌsÌr
ÖrneÅi), (`stanbul `z YayÌncÌlÌk, 1996) 143-55, 297-429.
48
HatiboÅlu, Üniversite Tarihi, 73; Arslan, Darülfünun’dan Üniversite’ye, 136-7.
49
Horst Widmann, Atatürk Üniversite Reformu, tr. from German by Aykut
KazancÌgil, Serpil Bozkurt, `.Ü. CTF Atatürk’ün 100. DoÅum YÌlÌnÌ Kutlama
YayÌnlarÌ Özel Seri 3 (`stanbul, 1981), 35.
50
Halis Ayhan, Türkiye’de Din EÅitimi (`stanbul: Marmara Üniversitesi `lahiyat
Fakültesi VakfÌ YayÌnlarÌ, 1999), 211ff.
51
Ibid., 224ff.
52
Ibid., 223.
both the 1924 experience and the existing 1949 Faculty of Theology.53
This completed the process of secularization of the educational
system started in 1924. Currently, twenty-two of fifty-six public
universities in Turkey have a faculty of theology.54
The programs
53
Mehmet PaçacÌ and Yasin Aktay, ‘75 Years of Higher Religious Education
in Modern Turkey’, The Muslim World, lxxxix (1999), 403.
54
M. PaçacÌ and Y. Aktay, ‘ 75 Years’, 412.
55
Schacht, Introduction, esp. systematic section on 112ff.
56
Ibid., 200-1.
57
Halis Ayhan, Türkiye’de Din EÅitimi, 218.
58
Ibid.
59
Ibid., 582-7.
law prevailed in the curriculum, not only in course names but also
in the structure and formulation of the Islamic legal subject-matter
as a whole.
60
The 1970s and 1980s the ideas of Sayyid Qutb, Mawdudi, Hasan al-Banna
and Sa‘id Hawwa became popular among Turkish Islamicists.
61
Ahmed Davudoglu and Ömer Nasuhi Bilmen are two good examples.
These men, who were trained in a medrese and taught there, later became teachers
in higher religious institutions. But younger scholars who used new methods
and approaches found their approach to religious issues too conservative. One
heated debate between younger and older scholars during the 1960s and 1970s
was related to the issues of ictihad and taklid (esp. whether or not a Muslim is
obligated to follow a mezheb). In the 1970s, Hayrettin Karaman, a younger scholar
whose work will be discussed below, entered into a heated debate with Ahmet
DavudoÅlu, a representative of old school; during the course of the debate,
severe accusations were exchanged, including heresy. See Ahmed DavudoÅlu,
Dini Tamir DavasÌnda Din Tahripçileri (`stanbul: YaylacÌk MatbaasÌ, 1974); also
see various issues of the monthly journal of Nesil, published between 1976 and
1980. As an example, see Receb Özgüner, ‘Karaman’la Bir Mülakat’, Nesil, 3:
9 (1979), 15-28.
of the Islamic state, the main features of which are modern, although
it retains certain features of the traditional Caliphate.62 For example,
âura is seen as a kind of parliament and the bey‘at is seen as a kind
of election and contract between the ruler and the ruled.63 Islamist
ideology requires a comprehensive system of law that would maintain
a modern Islamic state, and the Islamists have re-read the âeriat
system in light of these objectives. Thus, the two groups, Arab and
other Muslim lawyers on the one hand, and Islamists on the other,
have contributed greatly to the production of new works on Islamic
law. The legal profession and law schools have adopted the European
style of writing, while the Islamists have tended to be anti-mezheb
and selefi.64
Textbooks
62
Hamid Enayat, Modern Islamic Political Thought (London: Macmillian Press,
1982), 69-110.
63
Ibid., 125-39; `smail Kara (ed.), Türkiye’de `slamcÌlÌk Düâüncesi, I, liv-lvii.
64
It is no surprise that the outcome of these two efforts largely coincide, as
the link between salafism and modernist Islamism is well-documented. They
share, for instance, the anti-mezhep attitude, stressing the need for abandoning
taklid and exercising ictihad. See John L. Esposito, Islam: The Straight Path, expanded
edition (Oxford: University Press, 1991), 128-32.
65
Hayreddin Karaman, Mukayeseli `slam Hukuku, 3 vols. (`stanbul: `z YayÌncÌlÌk,
1999).
used textbook that formulates fÌkÌh along the lines of the continental
legal system. I shall try to demonstrate that not only its form but
also its content were substantially circumscribed by the style of
composition adopted. Both the organization and the nomenclature
of this text were heavily influenced by continental legal terminology,
which constitutes the basis of the Turkish legal system. Thus, the
book is divided into two main parts, public law and private law.
Although Karaman knew that this division is not part of Islamic
law, he defended his choice by referring to its usefulness to the
contemporary situation, and he did not see any theoretical problem
with it.66 Indeed, he justified his choice by contending that the
distinction between public law and private law was always present
in fÌkÌh. He opposed the widely held idea that Muslim jurists did
not develop public law and that their interest was confined mainly
to the sphere of private law. Thus he says:
… some of the experts on Islamic law state that the sources of Islamic
law contain as many fairly clear rules and principles regarding the
various branches of public law as they do in the sphere of private
law. However, due to the differences in the organization of themes
as well as differences of terminology, they maintain that it is very
difficult to explain, especially for non-experts, these principles and
rules.67
66
Ibid., I, 20-30.
67
Ibid., I, 39.
International Law (Public and Private) K. el-Siyer and monographs on the caliphate
68
Ibid., III, 24-5.
69
Ibid., I, 295.
70
Ibid., II, 34.
71
Ibid., I, 268.
Conclusion