THE FOUNDATIONS OF THE PRINCIPLES OF ISLAMIC JURISPRUDENCE RELATED TO THE LEGAL VALUE OF CUSTOM IN MAJALLAH

Abstract

Author(s): Serkan EL?KAN

There are a number of basic principles in Islamic law that are called “the principles of Islamic jurisprudence” (kawaid alfiqhiyya). These have been regarded by some modern researchers as the basis of the philosophy of Islamic law, and scholars of fiqh who are experts in this field and who have contributed to it have also been described as Islamic philosophers. However, if carefully examined, these principles consist not only of philosophical and logical propositions, but it will be seen that there was a substantial literary and practical basis of them in the time of the Prophet and rightly guided caliphs (al-khulaf??u al-r?shid?n ) which constitutes the first application area of islamic law. It is also seen that some of principles that are in question are related to custom (´Urf), which is one of the important source of Islamic law and actually all legal systems, and establish the legal value of custom. The principles of Islamic jurisprudence continued its existence and development in the subsequent periods. From the beginning of the 4th century they were systematized and became a branch of fiqh. Continuing its development, reached the science of Qawaid the summit by giving its most mature samples in Hijri 10th century. After this stage, the principles of Islamic jurisprudence subjected to scientific activities appeared with ninety-nine articles in the introduction of the Majallah el-Ahkam-i-Adliya, which was compiled as a Civil Code by a commission composed of fiqh scholars during the Tanzimat period of the Ottoman State. However, it has been seen that the studies related to these principles are mostly based on their commentary (sharh) and legale sources, and there is no approach in terms of their foundations in the hadiths. This research aims to reveal the foundations of the principles of Islamic jurisprudence in Majallah, especially those related to custom. In this way, the legitimacy of custom as a source of law will also be established in terms of hadiths. Oral and practical examples and practice of sahaba period will be the basis for the present study.

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