378 murteza bedir

FIKIH TO LAW: SECULARIZATION THROUGH

CURRICULUM*

MURTEZA BEDIR

Abstract

This is a study of the transformation of the Muslim understanding of the

concept of fÌkÌh in the last two centuries. I argue that the western notion
of ‘law’ considerably influenced the form of fÌkÌh, transforming it into
‘Islamic law’, a process that has culminated in a ‘new stage’ in the history
of fÌkÌh. I will attempt to describe the general features of this transformation
as well as its implications in the Turkish context. I begin by explaining
the meanings of the terms âeriat, fÌkÌh, hukuk and kanun. I then present an
historical overview of developments in the field of law in Turkey since the
second half of the nineteenth century, with particular attention to codi-
fication. Next, I examine the curriculum of the faculty of theology, which,
after the 1920s, was the sole official venue for teaching fÌkÌh in Turkey.
Finally, I attempt to measure the extent of change in the perception of
fÌkÌh by modern Muslims by examining the form and content of a textbook
commonly used in theology faculties in Turkey.

The Muslim encounter with European intellectual traditions

during the 19th century caused a number of social, cultural and
intellectual changes, which in turn led to the transformation of
perceptions in many fields, including law, which is the focus of this
essay. In Ottoman and Republican Turkish four terms refer, in one
way or another, to the legal enterprise: âeriat, fÌkÌh, kanun and hukuk.1

Correpsondence: Dr. Murteza Bedir, University of Sakarya, Faculty of Theology,

Adapazari, Turkey 54040; e-mail: [email protected]
∗
An earlier version of this essay, entitled, “Teaching Islamic Law in a Secular
State” was presented to the International Summer Academy by ISIM and Working
Group on Modernity and Islam: Local Production of Islamic Knowledge, YÌldÌz Technical
University, Istanbul, 3-14 September 2001. I thank Dale F. Eickelman and
Brian Silverstein for their encouragement; David S. Powers for his editorial
assistance; and the anonymous readers of ILS for their important contributions.
Any remaining faults are solely mine.
1
Throughout this essay I usually use modern Turkish transliterations of
the Arabic words.

© Koninklijke Brill NV, Leiden, 2004 Islamic Law and Society 11, 3
Also available online – www.brill.nl

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 fikih to law: secularization through curriculum 379

By examining these terms, I attempt to shed light on the differing

conception of law in the western and Islamic traditions.
The terms ‘âeriat’ and ‘fÌkÌh’ are purely Islamic terms. ‘Hukuk’ was
used by traditional Muslim jurists to signify ‘right’, but in modern
Turkish has come to signify ‘law’ in the European sense. ‘Kanun’
was used in Islamic-Ottoman texts more or less in the same meaning
as it has today, i.e., a legal code or legal rule. Thus, ‘âeriat’ and
‘fÌkÌh’ represent an Islamic conception of law; ‘hukuk’ refers to a
western concept; and ‘kanun’ refers to a concept—practical laws—
shared by both legal traditions.
Muslim scholars initially used the word ‘âeriat’ to refer to din or
millet (an integral prophetic religion), but it later came to signify the
body of divine rules that govern human actions.2 These actions can
be legal, moral, or religious, in the narrow sense. The term is
usually translated into English as ‘Law’ with a capital ‘L’ or as
‘religious law’. It should be noted, however, that ‘âeriat’, even in its
later meaning of a body of rules, means more than law proper. Its
scope ranges from issues of personal hygiene, such as the purity of
the water to be used for religious or mundane purposes, to legal-
administrative issues, such as the prerequisites for the judgeship.
The âeriat or religious law of Islam is based on the assumption that
every human action may be qualified as obligatory, recommended,
permissible, reprehensible or forbidden (modern law recognizes only
three categories, obligatory, forbidden and permissible).
For example, drinking impure water or wine is forbidden and
these substances cannot be used to perform ritual purification.
Similarly, the sultan is required to appoint a knowledgeable upright
person as a kadÌ (judge) in order to preserve the stability of the
community and to implement the rules of God. Again, the acts of
keeping the roads clean and freeing a slave are ‘recommended’,
whereas walking at the head of a funeral procession is ‘reprehensible’.
The âeriat is addressed to the individual, i.e. the person who is
obligated, forbidden, exhorted (encouraged), or discouraged. It is
this fundamental characteristic of âeriat that prompted Schacht to
assert—and perhaps to exaggerate—the basic distinction between
the conception of law in the West and in Islam: âeriat is concerned
with obligations whereas western law is concerned with rights.3

2
On the term, see Norman Calder, ‘Shari‘a’, EI 2.
3
Joseph Schacht, An Introduction to Islamic Law (Oxford: University Press,
1964), 4.

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 380 murteza bedir

The word ‘fÌkÌh’, sometimes used interchangeably with ‘âeriat’,

refers to the science of exploring the rules of the âeriat. FÌkÌh signifies
the human aspect of those rules, whereas âeriat signifies their divine
aspect. FÌkÌh developed two main genres: furu-Ì fÌkÌh and usul-i fÌkÌh.
Furu-Ì fÌkÌh, literally the branches of fÌkÌh, classifies human acts and
their religio-legal qualifications according to two main groupings:
(1) acts of worship (ibadat), including ritual purity, prayer, fasting,
alms-giving and pilgrimage, and (2) interpersonal relations (muamelat),
which include family relations (marriage, divorce, inheritance, and
bequests), contracts (sale, debt, hire, loan, gift and partnership),
penalties, and judicial procedure. ‘Muamelat’ resembles the con-
temporary notion of ‘law’, although the individualistic and non-
legal tendency of âeriat is still operative. For example, in fÌkÌh manuals,
in the chapter on marriage, a man is advised to treat his wives
equitably; and a husband is forbidden to issue a talak (verbal utterance
of repudiation) during his wife’s menstrual period. However, if a
husband does repudiate his wife during her menstrual period, his
utterance is treated as a valid act. The fukaha or scholars of fÌkÌh
distinguished between judicial (kazai) and religious (diyani) acts for
the purpose of solving some of the dilemmas that judges encountered.
Thus, one may violate the religious rules of âeriat without exposing
oneself to the sanction of the kadÌ. This shows that the concern of
âeriat extends beyond the law itself, even in the domain of legal
acts.
In the furu-Ì fÌkÌh literature, legal topics are arranged in a distinctive
manner. A standard fÌkÌh text begins with matters relating to ritual
purity and continues with other ibadat topics. When it comes
to interpersonal relations (muamelat), similar topics are collected casu-
istically under one heading, and the headings follow each other in
a loosely connected way, e.g., sale is followed by hire, which, in
turn, is followed by either partnership or agency. Muslim jurists did
not attempt to classify the topics of sale, hire, loan, gift, or partnership
under more general headings, such as mercantile law or the law of
obligation. The chapter on marriage is usually followed by that on
divorce. The related topics of inheritance and bequests are usually
placed at the end of fÌkÌh texts rather than being included in discussions
of family law.
The phrase ‘usul-i fÌkÌh’ literally means ‘the roots of fÌkÌh’. The
science of usul-i fÌkÌh seeks to identify the primary sources from
which the rules of âeriat may be deduced and the methods to be

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 fikih to law: secularization through curriculum 381

used in the process of deduction. In a sense, usul-i fÌkÌh is the theoretical

aspect of fÌkÌh as opposed to its practical aspect.
The word ‘kanun’ originally signified administrative rulings issued
by a governor. In the Ottoman context, it refers to the rules issued
by the sultan, called kanunnames, usually in the field of public law
(administrative, penal and fiscal matters). Although ”eriat in principle
covers every human act, including those that fall within the domain
of public law, its administrative and constitutional aspects are less
developed, because they are left to the prerogative of the governor.
Today, ‘kanun’ refers to legal codes adopted from the European
legal tradition. In the Middle East the word also refers to those
codes whose main material is provided by fÌkÌh, although in a simpler
and more organized way than was originally the case.
The word ‘hukuk’ is the Turkish (and in some contexts the Arabic)
equivalent of the English ‘law’ or the French ‘droit’. At an un-
determined point in time in the middle of nineteenth century, during
the Tanzimat period, ‘hukuk’ came to signify the modern concept
of ‘law’.4 In the 1870s the Young Ottomans frequently used the
word ‘hukuk’ in its modern sense, e.g., in the name of a law school
(mekteb-i hukuk) founded in 1874. The 1917 Ottoman Family Code
was called Hukuk-Ì Aile Kararnamesi, and the use of ‘hukuk’ here suggests
that this word had become common in contemporary Turkish.
This Code, whose provisions were formulated in the style of western
codes, was based solely on fÌkÌh provisions on family law.5 One of
the last monumental works of fÌkÌh, written in the Republican era
and published by the faculty of law in Istanbul in the 1940s, uses
the word ‘hukuk’ in its title: Hukuk-Ì `slamiyye ve IstÌlahat-Ì FÌkhiyye
Kamusu by the Ottoman-Turkish scholar Ömer Nasuhi Bilmen.6
These examples all show that when the Muslims first encountered
European ideas during the Tanzimat period, they already took for
granted the equivalence of ‘fÌkÌh’ and ‘hukuk’. The process whereby

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.

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 382 murteza bedir

‘fÌkÌh’ and ‘hukuk’ became synonymous must therefore be sought in

the history of the law in Turkey in the 19th and 20th centuries.

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.

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 fikih to law: secularization through curriculum 383

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.

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 384 murteza bedir

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.

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 fikih to law: secularization through curriculum 385

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.

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Ahmet Cevdet Paâa consciously imitated this tradition, he apparently

did not encounter much opposition from the ulema. The result of
his efforts was the Mecelle.
It is true that the Mecelle did not depart from Hanefi fÌkÌh. What
is important, however, is that the method according to which the
Mecelle was produced was different from method of law production
followed in the Islamic tradition. The innovativeness of this step is
supported by the fact that the preparation of the Mecelle followed
the establishment of secular courts, Nizamiye Mahkemeleri, that were
separate from the âer‘i courts. Cevdet Paâa justified the creation of
these secular courts by referring to a 15th century manual, the
Divan-Ì Def‘i Mezalim of Celaleddin ed-Devvani.29 Another marker
of innovation was the opening of the Mekteb-i Hukuk, a law school
that trained cadres for these courts. This, too, was a result of the
efforts of Cevdet Paâa.
The opening of this school provided an important theoretical
justification for the codification process. This was the first time that
a school other than a medrese undertook the task of teaching legal
subjects. One would expect that such a dramatic move in the history
of fÌkÌh would have attracted the attention of Ulema, but they seem
to have ignored it, due either to a tacit admission of inevitability (as
in the case of Ahmet Cevdet Paâa)30 or because they viewed it as
a temporary situation that in the end would be reversed (this was
the general position of ulema). This accounts for the disregard by
medrese scholars of the consequences of opening a new school of
law. And the 1914 reform forced them to respond to pressure from
the political elite (`ttihat ve Terakki FÌrkasÌ) by accepting the inclusion
of new courses on modern (existing) law within the Medrese curri-
culum.31
The process that began with the Mecelle and new schools and

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.

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 fikih to law: secularization through curriculum 387

courts would become a pattern throughout the Muslim world in

subsequent decades. In the case of the Mecelle, the fÌkÌh provisions
of the Hanefi school were thoroughly investigated in order to find
the right solution to a given problem.32 In theory, fÌkÌh provisions
acquire their justification and legitimacy not from the appropriateness
of a particular rule to a given situation, but from the conformity of
that rule with fÌkhi reasoning. In other words, a legal rule based on
fÌkhi reasoning prevails over the realities of life, not vice versa.
What is more, Islamic legal theory describes the process of judging
in terms of ictihad, and the judge preferably should be a müctehid.33
Thus, in theory it was possible for a judge to formulate his own
opinion on a point of law. The reputed ability of a kadi to reach
a judgment in a case without following any formal procedure is
what led Max Weber to posit Islamic law as the model of an ideal
type of law— sacred law—that does not provide formal justice.34
However, classical usul theory was severely circumscribed by local
practice as well as by the ability of the schools of fÌkÌh to craft the
tools necessary for achieving legal certainty and formal justice. The
Hanefi school, for example, developed a complex and sophisticated
system of preference of various opinions within the school. Although
there might be more than one solution to a particular case, any one
of which might serve as the basis for a judge’s holding, the later
Hanefis sought to limit the discretion of a judge35 by recognizing

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.

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 388 murteza bedir

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

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 fikih to law: secularization through curriculum 389

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.

`lahiyat Fakültesi (Faculty of Theology)

Beginning in the 1920s Turkey witnessed a radical break with the

earlier Ottoman-Islamic heritage, especially the treatment of âeriat.

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.

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 390 murteza bedir

The Tanzimat era had already witnessed the gradual decline of

the ”er‘i system and the rise of western style institutions. During the
Tanzimat period, ”eriat and secular legal systems co-existed; the
Tanzimat reformers tried to create a kind of synthesis between the
Islamic and European traditions,41 e.g., they opened new schools
designed according to western European models but did not close
the medreses. Later, the Young Turks sought to reform the medreses
without closing them. The debate over the status of ”eriat with
respect to modern codes intensified in the aftermath of the 1908
revolution, when westernization in all fields, including law, reached
a point at which maintaining the status quo was almost impossible.42
As mentioned, the legislative process was westernized, at least formally,
and legislative organs became part of the state apparatus, thus
paving the way for the post-Republican reforms, such as the abolition
of the last remaining vestiges of the ”eriat and the reception of the
Swiss Civil Code. Hence, what the reformers of the new Republic
abolished was not the traditional system of fÌkÌh but the legal codes
that had been derived from it in the Tanzimat period.
Following the closure of the medreses in 1924, a Faculty of Theology
(`lahiyat Fakültesi) was established within Istanbul Darülfünunu
(later to become `stanbul University), along with four other faculties
of the Ottoman Darülfunun-Ì ”ahane (the first modern Ottoman
university, established in 1900).43 With the abolition of the ”eriat
based codes, courses bearing traditional names were removed from
the curriculum of the School of Law, except for one course, usul-i
fÌkÌh (jurisprudence), which is mentioned in the law of 1924 as one
of the compulsory courses.44 This is significant because, since the
late 19th century, Muslim intellectuals had been trying to find an
escape from the impasse into which Islamic thought had fallen.
The most frequently mentioned solution to this impasse was to
41
Zürcher, TURKEY, 53ff.; Berkes, 137ff.
42
Berkes, Development, 325ff.; Zürcher, TURKEY, 100ff.
43
Attempts to establish a European-style university in the Ottoman empire
date back to the middle of the 19th century. Darülfünun-i Osmani, established
in 1870, was closed a few years later but subsequently re-opened as Darül-
fünun-i Sultani. The idea of a modern university was finally realized in 1900
with the establishment of Darülfünun-i ”ahane (also called `stanbul Darülfünunu),
with five faculties, including a faculty for religious sciences (which became
superfluous when the medreses were reformed). See Arslan, Darülfünun’dan Üni-
versite’ye, 36f.
44
M. Tahir HatiboÅlu, Türkiye Üniversite Tarihi (1845-1997), Cumhuriyetin
75. YÌlÌna ArmaÅan, (Ankara: Selvi YayÌnlarÌ, 1998), 72.

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 fikih to law: secularization through curriculum 391

open the gates of ictihad. Almost all Ottoman intellectuals, religious

and secular, campaigned in favor of ictihad.45 For example, one of
the leading intellectuals of the Young Turk period, Ziya Gökalp (d.
1924), whose ideas would be influential on Atatürk’s reforms,46
tried to establish a bridge between Durkheimian sociology and
usul-i fÌkÌh.47 Apart from the course on usul-i fÌkÌh, the law school
had no course on fÌkÌh. Indeed, the teaching of fÌkÌh was not a part
of the curriculum of the Faculty of Theology, which had been
established to teach Islamic subjects that traditionally were taught
in the medrese. Whereas the law of 1924 specifically mentioned
traditional subjects such as tefsir and tefsir tarihi, hadis and hadis tarihi,
it mentioned only the history of fÌkÌh, not fÌkÌh itself.48 The desire to
separate fÌkÌh from other Islamic subjects was obvious. FÌkÌh probably
was seen by the reformers in light of the developments of the post-
Tanzimat period, when it was used, as stated above, by one group
of reformers as a basis for legislation. The other group, triumphant
in the 1920s, was not satisfied with these codes, and demanded the
full adoption of European codes in their place.
The Faculty of Theology was closed by the 1932 University reform49
and it did not re-open, as part of Ankara University, until Turkey
became a multi-party system in 1949.50 Two other institutions of
higher religious learning were then founded, the first in 1959, Yüksek
`slam Enstitüsü (the Higher Institute of Islam, of which there were
several, none a part of any university),51 and the second in 1971,
`slami `limler Fakültesi (the Faculty of Islamic Sciences) as part of
Atatürk University in Erzurum.52 Following the 1980 military coup,
the Higher Educational Council was established, and all higher
religious institutes were given the status of faculty, on the model of

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.

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 392 murteza bedir

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

The term ‘Islamic law’ was already common in the writings of

Orientalists, who emphasized that the meaning of ‘fÌkÌh’ is broader
than that of ‘law’, although they nonetheless continued to use the
term ‘Islamic law’.
In his Introduction to Islamic Law, for example, J. Schacht tried to
systematize fÌkÌh in conformity with modern European legal categories
such as obligations, family law and penal law,55 categories that
were not part of traditional fÌkÌh nomenclature. Acknowledging the
religious character of fÌkÌh, he states that ‘the term [Islamic law]
must indeed be used with the proviso that Islamic law is part of a
system of religious duties, blended with non-legal elements’.56 He
nevertheless argued that it is possible to derive from fÌkÌh legal-
subject matter as understood in the West. Indeed, the production
of the Mecelle and later codifications was based on the assumption
that ‘fÌkÌh’ and ‘law’ are equivalent or nearly so.
In the curriculum of the first Faculty of Theology in Ankara, the
study of fÌkÌh reappeared under the rubric of ‘Islamic law’ (`slam
Hukuku),57 although the term ‘fÌkÌh’ remained intact in the curriculum
of the Higher Islamic Institutes.58 After the Higher Islamic Institutes
were re-designated as faculties of theology, the curriculum of the
first Faculty of Theology at Ankara served as a model for the new
faculties. Along with `slam Hukuku, a few courses relating to Islamic
law were added. For example usul-i fÌkÌh became `slam Hukuk Usulü,
and the science of disputes (ilm-i hilaf) became Mukayeseli `slam Hukuku
(Islamic Comparative law).59 Thus, the nomenclature of modern

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.

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 fikih to law: secularization through curriculum 393

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.

The form and content of the textbooks

Between the 1920s and 1950s Islamic studies suffered a setback

because of the absence of any institutional backing for them. In
addition, the legacy of the Tanzimat period was almost forgotten.
With the revival of Islam in the 1950s, interest in traditional
Islamic studies increased. However, the materials on which the
students relied were mainly translations from Arabic and other
Islamic languages.60 Although, the cadres employed in the Higher
Islamic Institutes during the 1950s and 60s were former medrese
professors or their irregular students, the post-independence ideology
of Islamism of the wider Islamic and Arabic world was more appealing
to Turkish students in these Institutes, who regarded the medrese
professors as too traditional.61
As noted, the process of codifying fÌkÌh has spread to other parts
of the Muslim world, where Islamic law has been incorporated into
the general framework of the legal systems of Arab and Islamic
countries, on the one hand, and Islamists have attempted to present
Islamic law as a complete system designed to replace existing secular
systems, on the other. The Islamists, who also were not satisfied
with the traditional method of fÌkÌh, developed an alternative theory

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.

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 394 murteza bedir

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

General works and textbooks on Islamic law were already being

produced in other parts of the Muslim world, especially before the
Second World War when there existed no formal institution of
religious learning in Turkey. Newly emerging Turkish-Islamic
scholarship benefited greatly from these resources. Returning to
the question of how these developments affected the contents of
Islamic law courses taught in Turkish theology faculties, it is clear
that the original intention of the founders of these faculties was to
create the kind of theology faculty found in western European
universities. The secular character of the new institutions was highly
appealing to the Turkish elite.
I turn now to Hayrettin Karaman’s three volume Mukayeseli `slam
Hukuku (Islamic Comparative Law, hereafter MIH) (vol. one was
published in 1974, vol. two in 1982 and vol. three in 1991, and the
set has been reprinted several times subsequently).65 MIH is a widely

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).

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 fikih to law: secularization through curriculum 395

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

Karaman’s main concern, therefore, is not whether or not reading

the topics of fÌkÌh in terms of continental law poses any problem;
rather he is interested to show that the distinction between public
and private law can be found in fÌkÌh, too. It is interesting to note,
however, that most of the first two volumes and a small section of
the third are devoted to private law, whereas only half of the first
volume (one-sixth of the entire work) deals with public law. Ironically,
despite his claim that Muslim jurists developed a complete public
law, Karaman’s attempt to demonstrate its comprehensiveness is
confined largely to private law.
The public law discussion comprises three sections (note the
nomenclature which clearly follows European/Turkish legal ter-
minology):
1. The state and its organs (Administrative Law) (Devlet Hukuku)

66
Ibid., I, 20-30.
67
Ibid., I, 39.

ils268_bedir.pmd 395 11/12/2004, 11:03 AM

 396 murteza bedir

2. Constitutional Law (Esas Teâkilat or Anayasa)

3. Penal Law (Ceza Hukuku)
Karaman omits some public law institutions, e.g. fiscal law, without
any explanation. One public law topic is discussed under private
law (Public International Law).
With regard to content, in those parts of the public law section
that deal with the state and its organs, Karaman drew much of the
material from contemporary sources, such as a model Islamic
constitution prepared by al-Azhar University and M. Hamidullah’s
re-interpretation of a political document from the time of the Prophet
known as the ‘Constitution of Medina’. Apart from the qualifications
of a Caliph and the nature of the Caliphate, this part contains
almost no reference, for instance, to el-Ahkam el-Sultaniyye of el-
Maverdi (d. 450/1058), one of the best known political texts of
classical Islam. Similarly, the section on human rights is based on
apologetic literature that emerged during the second half of the
20th century in response to the explicit or supposed criticism of
Islam by Europeans. Thus, neither the organization nor the content
of the sections on public law give much support to Karaman’s
claim that classical sources treated Islamic public law in the same
measure as they did Islamic private law. It seems that the entire
discussion of public law in this work is motivated by the desire to
elevate ‘Islamic law’ to the level of contemporary European laws.
The sections on private law clearly show the extent to which fÌkÌh
has been re-read in light of continental legal terminology. Since the
topics of classical fÌkÌh fit more easily into the scope of private law,
one might not object to a re-reading of it that employs modern
legal terminology, which is the case here. Generally Karaman, like
many students of Islamic law, expresses reservations, saying that
the scope of fÌkÌh is wider than that of law, as it also deals with
rituals (‘`badat). As to the topics of law proper, he assumes that
‘Islamic law’ in the Continental sense can be reconstructed from
the topics of fÌkÌh. This can be seen in the classification of legal
subject-matter as well as in the formulation of its content. Karaman
includes six sections under private law:
1. The Law of Persons
2. Family Law
3. Inheritance Law
4. The Law of Obligations
5. Property Law

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 fikih to law: secularization through curriculum 397

6. Private International Law (Public International Law is treated

here)
Although these rubrics cannot be found in classical fÌkÌh terminology,
Karaman takes them as the foundations upon which the entire
edifice of Islamic law is built. Any of these foundational rubrics
may draw its materials from a number of places in classical fÌkÌh.
The diagram below shows the possible interactions between these
two systems:

K. el-ehliyye, K. el-Vasiyye, K. el-Velaye, K. El-

Wakf also some parts of K. el-Nikah, e.g. neseb,
Law of Persons mehr, nafaka, hacr, etc.

Family Law K. el-Nikah and K. el-Talak

Inheritance Law K. el-Fera’iz ve’l-Vesaya

K. el-Bey‘, K. el-Selem, K. el-Vekale, K. el-Kefale,

K. el-Havale, K. el-İcara, K. el-Rehn, Kitab el-
Law of Obligations Hacr ve’l-İkrah ve’l-İtlaf, K. el-Şerike, etc.

Property Law K. el-Bey‘, K. el-Şerike, K. el-KÌsme, K. el-Gasb,

K. el-Hibe, etc.

International Law (Public and Private) K. el-Siyer and monographs on the caliphate

In the introduction to his discussion of each of the six institutions,

Karaman reminds his reader of the sources from which the material
for any given institution may have been drawn. He justifies his
choice by saying that since the conceptual organization of fÌkÌh is
a product of juristic thinking, not a revealed principle, it is possible,
indeed desirable, to develop a totally new conceptual organization.
Thus he states:
Since there is no revealed injunction (nass) on how to compose a
given discipline, how to analyze a given subject-matter, how to organize
its topics and questions—in other words, since the systematization of
our fÌkÌh texts is not based on revealed law but on the exigencies of
time and the personal preferences of the authors—developing new
systematizations and methods … must be useful and is by no means
illegitimate.68

68
Ibid., III, 24-5.

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Karaman sees no harm in squeezing fÌkÌh texts into the categories

of western law, indeed he considers this to be an advance in Islamic
legal history. His adoption of the western legal structure as a basis
naturally leaves some of the topics of fÌkÌh untreated. For instance,
since Kitabü’l-`stihsan, which deals, inter alia, with permitted and
prohibited foods, and the rules for covering the body of a man, has
nothing to do with law in the western sense, it does not find a place
in this work. Similarly, Kitabü’l-Udhiyye, which lays down the rules
of ritual slaughter, is omitted.
Not only the general structure but also the internal order of these
six sections is designed in accordance with the western legal tradition.
In each section, the author provides an account of a certain institution
in contemporary Turkish law and European law, thereby illustrating
the boundaries of that institution, i.e. what is to be included and
what is not. Although he generally refers to the distinctive aspects
laid down in fÌkÌh, he remains loyal to the boundaries of this originally
Continental legal institution, at the expense of certain aspects of a
given topic as treated in fÌkÌh. An interesting example is the treatment
of rules concerning the relations between would-be spouses before
the contracting of a marriage. A typical fÌkÌh text discusses a man’s
right to see the body of his prospective spouse, i.e., whether he can
look at those parts of her body that he normally would not be
allowed to see. Since this question is of a purely religious nature,
Karaman ignores it and states only that Islamic law recommends
that each candidate look at, and communicate with, each other
before marriage.69
The nomenclature of the sub-divisions within these six sections is
also designed in accordance with modern legal terminology. A good
example is the law of obligations (covering the whole of the second
volume), which is divided into two main parts: the sources of obligation
and the general rules of obligation. In the first part are included
the theory of contract, unjustified acquisition and wrongful act.
The second part includes the consequences of an obligation, its
cancellation, types of obligation and its conveyance. These rubrics
are drawn not from the classical terminology of fÌkÌh, but rather
from the continental legal system. FÌkÌh, as noted, treats each contract
separately without subsuming it under a general heading. Karaman
concedes as much:

69
Ibid., I, 295.

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…Although these general rules and principles [taken for granted by

Muslim jurists] were not collected, analyzed or codified [in Islamic
law] in separate compositions, they were always taken into account,
observed and considered in legal works. It is always possible to identify
and develop the general rules and theories with the help of explicit
and implicit statements nourished within the structure of Islamic law
as well as through the principle of going from the effect to the cause…
since one of our significant aims in this study is to present Islamic
law to those who are trained in legal systems of western origin. In
order to explain Islamic law by using their terminology, it is incumbent
upon us to adopt the division between ‘personal right’ and ‘real
right’ [which does not exist in Islamic law]…70
After establishing what is or is not to be included in a particular
section, Karaman combines two popular styles already established
in the modern Muslim world, i.e. the style of Arab lawyers and that
of modern selefis, and he turns to the classical fÌkÌh texts as well as
to the Kitab and sunna to extract materials that are compatible with
the pre-established original institution. Here he selects from the vast
resources of fÌkÌh without limiting himself to this or that school; in
those cases in which fÌkÌh is unable to provide concrete examples,
he turns to the Qur’an and the hadith, asserting that they contain
sufficient resources to establish the Islamic version of the original
institution. He sometimes justifies himself by noting that the revealed
law did not explicitly reject certain rules and principles. This is
most clear in the section on public law, but one also encounters it
several times in the section on private law. For example, in the
classical fÌkÌh texts, legal personality is confined to real persons, and
there is no explicit recognition of a corporate personality. Unwilling
to accept that Islamic law lacks a concept that is found in western
law, Karaman argues that the concept of a corporate personality is
also known in classical fÌkÌh. He cites a number of examples, including
religious endowments (evkaf ), different types of partnership (âerikat),
and the Public treasury (beytü’l-mal), but seemingly dissatisfied with
his own arguments, he resorts to other explanations. He says:
The structure of Islamic law does not reject the rules about a corporate
personality pertinent to associations and institutions; for there is nothing
in these that would oppose its spirit and revealed sources.71

70
Ibid., II, 34.
71
Ibid., I, 268.

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Conclusion

From Cevdet Paâa to Karaman, the movement ‘from fÌkÌh to law’

and the objectification of âeriat were regarded merely as a matter of
changing classification and wording; Muslim scholars were not
bothered by the possible impact of this change upon the content of
the doctrine and further development of fÌkÌh. The process may be
compared to the change of clothing styles adopted by men and
women in the Ottoman world, which started at the same time as
the change of laws. Just as a change of clothing style may have a
profound effect on the way of thinking of those who adopt the
change, so too the change of form continues to alter Muslim perceptions
of fÌkÌh.
First, the perception of ‘fÌkÌh’ as ‘Islamic’ law by contemporary
Muslims—re-reading the entire body of fÌkÌh from a modern, legal
point of view—severely limits the scope of fÌkÌh’. In a sense, this
makes it impossible for students of fÌkÌh to go outside the legal
sphere, despite the fact that fÌkÌh is more than law. Thus, for example,
fÌkÌh ritual practice is no longer studied as a component of Islamic
law, but rather as a part of theology that requires a separate course
(`slam dini esaslarÌ). Similarly, the topic of what is licit or illicit to eat,
drink, or wear is no longer a part of Islamic law. Second, despite
the fact that the materials used to fill the contents of non-fÌkhi
categories of Islamic law come from fÌkÌh, it is no longer the reasoning
of fÌkÌh that determines the legitimacy of a specific provision. Instead,
it is the appropriateness and suitability of that provision for these
new categories, hence for ‘modern’ conditions, which make that
provision acceptable. And the exigencies of the modern situation
dictate a method of free-selection from the vast number of views,
originally formulated in a totally different milieu with a distinctive
reasoning. Third, what is now called ‘Islamic’ has attained a
compactness and comprehensiveness different from its original form,
fÌkÌh. That is, Islamic law is now treated as a legal system like the
legal systems of modern Europe. Areas of public law such as
constitutional law, traditionally less developed in fÌkÌh as compared
to western legal systems, have become the focus of attention. Fourth,
the emphasis on the idea of a ‘complete’ legal system entails the use
of an apologetic language in Islamic legal discourse. It is assumed
that Islamic law contains everything that a western legal system
contains. The law of persons provides an interesting example: although

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 fikih to law: secularization through curriculum 401

the concept of corporate personality is generally unknown in fÌkÌh,

Karaman and many writers on Islamic law argue that corporate
personality is a recognized concept in fÌkÌh. The underlying assumption
is that, as a complete legal system, Islamic law must contain everything
that a western legal system contains.
The reading of fÌkÌh in terms of the western legal tradition by
contemporary Muslims is an unprecedented phenomenon in the
history of fÌkÌh, which no doubt has triggered a new phase in its
development. Since the parameters of this change are determined
by a factor alien to fÌkÌh, i.e. western notions of law, the development
cannot be regarded, as some argue, as a result of ictihad. There is
no doubt that law in the western sense did exist in every society,
Muslim society being no exception. We can speak of the laws of the
Ottoman, Mamluk or Seljukid states and compare them with their
western counterparts. Law in this sense exists in both Western and
Near Eastern societies. FÌkÌh, on the other hand, continues in the
Abrahamic tradition of monotheist religions and, in modern terms,
seems close to a ‘deontology’ or ‘science of duties’, although it tries
to combine these two perspectives, legal and religious, in a single
realm. It is, therefore, essential to consider both aspects in any
study of fÌkÌh; to do otherwise would reduce fÌkÌh either to a study
of law proper, or to that of religion in the strict sense. What is
more, it would cause us to misinterpret the true nature of fÌkÌh, and
hence the outcome of fÌkÌh’s combination of legal and religious
realms.

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