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The relationship between religion and legislation and role of rationing movements in this relationship

The relationship between religion and legislation and role of rationing movements in this relationship *

Preparation: Meets all the conditions legitimacy. D. Mohammad Akif Aydin **

In the name of God the Merciful

The application of religious values ​​in society undoubtedly also depends on the role of associate link to this debt to these values, as well as laws based on those values ​​play a role can not be ignored in this area. And no one can be observed religious community values ​​to the fullest and set them up to daily life without the element of support by the legislative provisions . And the face of another currency; since there must be a comprehensive system of religious or philosophical values ​​under those legal principles, as well as it should be. The values ​​of this system is that a reason to earn a law vital interior.

For example, the relationship between men and women a legitimate relationship within the family, which is considered an important religious value - which is found in all religions - you will not earn that relationship to exist only after endorsement by the law. If the legal system looks at the relationship between a man and a woman - albeit without a marriage contract- On the basis of the principle of absolute freedom of the parties, religious Achieving this value in life will be great difficulty. On the other hand; even be a law to prevent such illicit relationship of respect and effectiveness of individuals, it is necessary to be religious or philosophical values ​​of society are those relationships together and also illegal. We can increase our examples of those. Religion and the phenomena متلازمتان law is Mtfariqtin.

It is here that we can get to the following result: The presence of Islamic values ​​in Muslim communities depends on the legal system based on those values; which depends on the presence of Islamic jurisprudence and the possibility of its implementation of community. Communities that do not apply the Islamic law can not be installed religious values ​​and set them up to those communities to long in the fullest. This is not just about the Islamic religion, but all religions; Judaism or Christianity is also based on the same requirement have carried out to build a system of their own legislation.

This is the first aspect of the subject. The other side is the need to respond to the legal provisions applicable to the needs of the community, social and legislative business and economic development; because of the legal provisions but originally placed to regulate those areas. This means that the legal system should be attention to changes and needs in those areas; If you did not care system by legal provisions will therefore not applicable to society over time.

فالمفهوم so that Islamic countries should maintain religious values ​​and established their communities, and through the application of Islamic law on the one hand, on the other hand it has to renew and repair this legislation so that it meets the needs of the times. Here show the importance of rationing in terms of securing the application of Islamic law on the one hand, and in terms of making it in conformity with the needs of the community on the other hand. It is noted that the political and administrative power is that you can decide those needs best; because power is directly related to all strata of society, enabling it to identify those needs full image. Therefore we can say that التقنينات is the best way to put the provisions of Islamic law on the face of a comprehensive on the one hand, as you open the door on the other hand to take advantage of modern interpretations and jurisprudence.

We are in this lecture will try to give a brief about the legalization of Islamic law in the Ottoman Empire in its last century, and the lessons we can, including extraction. Valvgah Islamic origin of discretionary legislation; In other words, the Islamic jurisprudence fruit carried out scholars المجتهدون the drawing on all Islamic sources, and on top of the book and the Sunnah. When viewed on existing views in schools of Islamic jurisprudence and evaluation we will see that the reason for the richness of Islamic jurisprudence in terms of its provisions discretionary way is posed; any being legislation Ajthadia of the.

In the middle of the nineteenth century we see the first steps to legalize Islamic jurisprudence in the Ottoman Empire, under the impact of rationing movements in Western countries on the one hand and economic developments, commercial and social that have emerged in the nineteenth century on the other hand. In this regard appeared two laws are important; one: Journal of the judicial provisions which are civil law of the Ottoman Empire. The second: Is the law of the Ottoman family.

The magazine judicial judgments is considered the first example of this type of rationing; The بتحضيرها has a committee headed by Ahmed Cevdet Pasha, a man famous State and Law of the time, and that during the period 8 Years. They include 1851 Legal material, containing the Code of Obligations and Contracts and Commercial Law and Judicial. In short, we can say that it includes the transactions section in the books of Islamic jurisprudence. The Committee (Authority magazine) Prepared this law has made a successful attempt for its age to a large extent, especially if we take into account as they represent the first normative movement in the history of Islamic law.

In fact, the beginning of efforts to codify Islamic law extends to the first centuries of the codification of Islamic jurisprudence. The first attempt in this area we see in the letter sent by Ibn al-famous writer to the Abbasid Caliph Abu Jafar al-Mansur (D. 145 AH / 762 AD), When he saw the chaos caused by the legislative different judges hardworking, where he said: “فلو رأى أمير المؤمنين أن يأمر بهذه الأقضية والسير المختلفة، فترفع إليه في كتاب ويرفع معها ما يحتج به كل قوم من سنة أو قياس، ثم نظر أمير المؤمنين في ذلك، وأمضى في كل قضية رأيه الذي يلهمه الله تعالى ويعزمه له، وينهى عن القضاء بخلافه، وكتب بذلك كتابا جامعا عزما لرجونا أن يجعل الله هذه الأحكام المختلطة الصواب بالخطأ حكما واحدا صوابا، ورجونا أن يكون اجتماع السير قربة لإجماع الأمر برأي أمير المؤمنين وعلى لسانه، ثم يكون ذلك من إمام آخَر آخِر الدهر إن شاء الله”([1]). Asked Abu Ja'far Imam Malik that puts a book it brings people to achieve this goal. It draws attention, referring to Imam Malik points that observed when authored this legal Metn, where he said: «Avoid the hardships of Ibn 'Umar, Ibn Abbas and licenses, and the gay son of Massoud, and Otih people Foreword». However, the Imam Malik refused his request this under the pretext of the possibility of mistake in some Ajthadath, and the fact that some conversations are irrigated from the Messenger of Allah e acquaintances. Since the reign of Harun al-Rashid is wanted - also- That carries people on the Muwatta but the owner did not accept this time, too, for the same reasons.

The continued evolution of Islamic jurisprudence as dependent on legislation diligence, and made compositions that codified the Mufti of the views of the various sects or likely within the same denomination, uniform application of Islamic law, and ruled on the legislative chaos.

And stand out among these works that affection and care efforts of statesmen such as: Indian opinions and fatwas Altatarkhanih. The written pearls Mullah Khosrow and Abhar forum for Ibrahim al-Halabi, are considered two books semi-official in the Ottoman Empire because of their being two main references for judges in this state. With this Such books are books scientifically and not متونا the legal.

But this is a judicial judgments magazine first codification in the form of a legal board in the history of Islamic legislation; but it is - with this advantage- Attempt was incomplete in terms of lack of interest in the full attention taking into account the circumstances of the times and society at the time. For example, when the concept known “Money” Which is termed an important transaction in the jurisprudence of this law could not come out outside the scope of the Hanafi school, which was the ruling doctrine of the State Ottoman Empire, Frvoh the definition includes only physical money, did not intervene in the definition of the rights and benefits([2]). Whatever appears that this is just a simple definition, but if you leave the rights and benefits beyond the concept of “Money” This will be a reason to narrow the field of verbal behavior, and will not therefore can maintain those rights and benefits to harmful acts. For example, the easement will be placed in a separate contract for sale this concept, which we mentioned; well when grabbing the rights and benefits will not generate the right warranty for these benefits. For example, if the house was grabbing and may use for a long time, House فلصاحب right warranty for lack contained in the house, but it will not be the owner of the security right to receive the reward like him for the use of the usurper. In the present day, has widened the fields of rights and benefits, and therefore cause narrowing of the concept of “Money” Multiple legal problems do not need to explain.

Another example in the magazine about the movable and the impossibility to sell before receipt; It is noticeable that the jurists were very careful in the eras of the emergence of Islamic jurisprudence, especially in matters of injustice and ambiguity; This is why not Ajoswa sale of movable a new contract before taking possession by the buyer. Article 253 Of the magazine also codified matching to this view. However, in exchange for the emergence of new possibilities to determine the specifications that reduce the possibility of ambiguity and injustice in the new industrial products, one can not justify the eligibility of this caution and defend himself to be taken into account even today in our business.

فنستطيع to increase our of those examples; as these examples prove to us that scientists magazine staff members did not act with the necessary flexibility to take account of changed circumstances communities. The reason behind it was either the inability of jurists or legislators read those changes in the social and commercial life of a correct reading, and either human rights or the legislator saw those changes, but it remained committed to traditional views or the views of a particular doctrine. In both cases remain jurisprudence and social reality behind or legal community. Whatever the Islamic jurisprudence legislative system is mainly based on the Quran and Sunnah and other Islamic sources, however, scholars who lived amid the social and political conditions and cultural relations between the first century and the fourth century AH was their views and اجتهاداتهم the important place in the formation of this jurisprudence.

But we can say that the legislation has been the result of Islamic jurisprudence of these jurists. In other words, we can say that the consensus in Islamic jurisprudence may in fact affected by the social and political Ocean cultural, national and in those four centuries. This means that the jurists themselves if they were living today and provide their views on the same issues under the conditions the social, political and cultural rights of our present results that would have been reached it in many different aspects.

And when I say that, I do not mean to be jurisprudence follower of the changes and developments taking place without community any limitation Ochert,. It is indisputable, the general principles of religion must be the subject of attention by the legal rules in all Ages. But I'm trying to say that in the areas that remain outside these essential principles Failure to keep up with the facts of life, social and legislative pretext of adhering to only the views of traditional and ancient jurisprudence of our scientists valued the outcome will be paid to outside law contemporary society. Let me explain here that my words this and that we are discussing in the example of family law in the Ottoman Empire, which I would like to أتناوله detail.

The Ottoman legislator in the magazine has remained committed to largely Balajthadat the tap because of the conditions that existed in the community then; is that the Family Code, which was prepared after the Ottoman 40 Year of the magazine has opened a wider path to the views of other doctrines. It was the law of the Ottoman family, which consists of 157 Article governing marriage and divorce provisions contain next to the Hanafi jurisprudence of the Maliki and Shafi'i and Hanbali widely. There are some of these examples related to the views of the new entered the Family Law Ottoman based on assumptions that are contained in the doctrines doctrinal again about the issue not to marry before you get to a certain age, and the inadmissibility of marriage or divorce compulsion, and not the health of divorce drunk, and expand the boundaries of the conditions in the marriage, and expand .

In all of these changes, we can see the effects of the Ottoman experience of the application of Islamic law across six centuries on the one hand, and the effects of the changes that left urbanization Azahrta and the industrial revolution in the social structure and the institution of the family in the late period.

Let me give you two examples here clinging to the legal amendments that refer to these phenomena; one: Marriage or divorce passport for compulsion in the Hanafi school; and I'm not here I would like to discuss the theoretical underpinnings of this phenomenon, but it is hard historically that this view has caused many problems during its application in the history of the Ottoman law. In certain periods when the Ottoman society insecurity sometimes there was a phenomenon of kidnapping of girls or women, this was not a rare phenomenon. In many of these kidnappings were majority المخطوفات is married with a man for coercion, was given to this marriage marriage contract true picture. This phenomenon was caused in the community social and family problems than occurs to the mind. In light of these experiences Ottoman family law resorted to get away from the Hanafi opinion and the opinion came last under the light of the views of other sects, he decided not to marry or divorce passport for coercion. This kind of legal amendments may stop at least for those who walk to illegal methods of that Aljúa in achieving their goals to the protection of the law.

The nineteenth century is a century had been the great wars in parts of the Ottoman Empire. In the period that began t since 1830 m to 1917 m following wars: The war between the Ottoman army and between Muhammad Ali Pasha - and Egypt - was in 1830 AD. After the war in 1850 in the Crimea with the Russian army, followed by a war that took place in 1876 with the forces of Serbia and Montenegro and then with the Russian army in the Balkan Peninsula. Then with the forces of Greece in 1890. Then with Bulgarian forces in 1914. Then I started the First World War, which forced the Ottoman Empire to fight against coalition forces, led by France and England. It was more than attending those wars of warriors did not return to their families and their families; and worst of all that some of them did not reach the news of their death to their homelands. This final section of the warriors express their term “Lost” In Islamic jurisprudence; This means that a person who does not know him whether he is alive or dead, and did not know his whereabouts if he was alive. In order governs this person to death, and allows the marriage of his wife from someone else if they wanted to, and his legacy can be divided among the heirs must wait for each of the Hanafi school to age seventy-fifth, age ninety . And see to the person who went with the army at the age of 25 Years is no longer, and did not know the news of his death; For his wife to wait 50 Years so that they can marry someone else. So you can think about the social problems that arise as a result of this phenomenon?

However, the legislature has remained in Ottoman also in the Department of Islamic jurisprudence, benefiting from the views of other schools of Islamic jurisprudence, he decided the dissolution of the marriage contract passport by women either the arrival of the news of the death of her husband, either by not experience access period starting from one year to four years. Valmushara who noted that social events soon not have to do something otherwise; dish as an explicit judgment and improbable magazine: “Does not deny the provisions Climate change times” (Article 39).

It is noticeable that some conservatives of men of science have been prevented application of this law after a year and a half in the beginning of the implementation of the community; and so for one reason, which is that this law has benefited from the views of other schools of Islamic jurisprudence, after the abolition of family law Ottoman returned again applications Hanafi .

When the fall of the Ottoman Empire and the establishment of the Turkish Republic has been suggested in the first re-implementation of the Family Law Ottoman, then drop responsible for the consideration of this proposal for various reasons do not want to get into details; therefore decided translation SCC until the Turkish Civil Code, which included inside the Law .

It is noted that these conservative men of science opponents of the law, which benefited from the views of other schools of Islamic jurisprudence could not in the circumstances of those days to raise their voices on the issue of the introduction of the Swiss civil law, which was prepared according to the Catholic social structure . Of course I do not want to here that were all responsibility in this radical change rests with these conservative men of science; is that we can not forget that their views did not care at all social changes may have had a role in this result reached by the Turkish society.

This, I said at the outset that we can a lot of those examples; is that there was no need to mention all here. I would like to go back again to what I said in the beginning even terminated my words so:

We are if we want to establish Islamic values ​​in everyday life in Muslim communities, will be set up only by endorsing the legal provisions based on those values. If this support is not obtained in the space will not be possible to establish that the full sense of religious values. However, I would like to add something here; when I say that those values ​​should be supported legal provisions do not mean the force members of the community to accept these values. I do not mean that at all. In contrast, the legal system must note the legislative and social changes, trade and economic community soon, and to take appropriate attitude to these changes without compromising religious values.


*Rationing and innovation in contemporary Islamic jurisprudence held during the period (28-2) April 1429 / ( 5-8) April 2008 – Lectures Hall Sultan Qaboos Mosque.

**President of the Islamic Research Center (Assam) - Istanbul.

[1]) The legislative situation in the Arab countries past and present to Sobhi Mahmassani, pp. 145-146, Dar El Ilm million, Beirut 1962.

[2]) Look: Judicial judgments magazine article 126.

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