Fiqh

The science of Islamic worship and law.

The word fiqh, which means “to know something, to understand it well and completely, to grasp it deeply” in the dictionary, has a more specialised meaning than other closely related concepts such as ilm and fahim. Faqīh (plural fukahā) means “one who comprehends a subject deeply, one who has a fine understanding”. Although the use of the word fiqh in the Qur’an, hadith and the early periods of Islam remained within the framework of this dictionary meaning, since the Qur’an and hadith were the two main sources of knowledge of the Islamic society, the word was generally used as one of the concepts expressing religious knowledge and understanding centred on the Qur’an and hadith. (VIII.) century, it started to become a term expressing the knowledge of the practical provisions of Islam regarding individual and social life and a branch of science that examines this subject. The clarification of the meaning of the word is in the later centuries.

The word fiqh occurs in twenty places in the Qurʾān with various verb forms (see M. F. ʿAbd al-Bālāqī, al-Muʿjam, “fḳh” md.) and is generally used in the sense of “to understand something well and completely, to comprehend, to know the truth of something, to reason”. The “fi’d-dīn” entry in one of these verses (al-Tawbah 9/122) gives the word a more specialised meaning of “having deep knowledge in religion.” The word fiqh and its derivatives in the hadiths, when used in absolute form, mean “good, correct and in-depth knowledge and comprehension” within the framework of the dictionary meaning, and when used with the “fi’d-dîn” record, it is seen that knowledge of religion and the Qur’an is meant (bk. Wensinck, al-Muʿjam, “fḳh” md.; cf. Bukhārī, “ʿIlm,” 10, 20; Muslim, “Imāra,” 175, “Zakat,” 98, 100; Abū Dāwūd, “Ṣalāt,” 1). The word fiqh is used in the hadith, “There are many who transmit fiqh to those who are more understanding than they are” (Abū Dāwūd, “ʿIlm”, 10; Tirmidhī, “ʿIlm”, 7), which means knowledge based on understanding as well as knowledge of the Qur’an and Sunnah. However, it is more commonly understood that fiqh, together with rʿā’y and fatwa, is used for “the meaning and judgement deduced from the Book and Sunnah,” while ‘ilm, narration, and hadīth are used for “direct knowledge of the Book and Sunnah” (knowledge of verses and hadīth) (Abū Dāwūd, “Ferāʾiż,” 1; Ibn Saʿd, I, 346, 348, 350, 357, 368, 375, 378; Ibn Saʿd, “The Prophet’s knowledge of the Qurʾān and Sunnah during his lifetime and after his death. Ibn Sa’d used fatwa, fiqh, and rā’i in the same sense, and the word ‘ilm (knowledge) in the sense of knowledge of the verses and hadīth in particular, and sometimes in the sense of knowledge that includes both groups). However, it can be said that in the era of the Prophet and his companions, the words qaḍa and r’y had a more widespread usage than fiqh, and those who had knowledge in religious matters were called “kurrā” due to the close connection between literacy and memorisation and knowledge, and with the development of scientific accumulation and methodology, fiqh became a branch of science and the word kurrā was replaced by the words faqih and ʿilm (Ibn Khaldūn, III, 1046).

There are records dating back to the time of Abū Ḥanīfah (al-Fiḳh al-absaṭ, p. 40) that almost all of the religious knowledge (knowledge of one’s rights and obligations) obtained through mental effort from the main sources was called fiqh and that fiqh became a term in this sense. This broad meaning of fiqh continued at least until the V (XI. This broad meaning of fiqh continued at least until the V. (XI.) century, when the knowledge of faith and belief became the subject of a separate branch of science called “al-fiqh al-akbar, ilm al-tawḥīd, ilm al-usūl al-dīn,” and the issues related to the Muslim’s good and bad habits, private life, social relations, and behaviour became the subject of the sciences of ethics and mysticism, after which the term fiqh was allocated to the jurisprudence of religion (knowledge of the catechism and Islamic law). The definition attributed to Imam Shafi’i, “Fiqh is the knowledge obtained by deducing the practical rulings of the religion from its specific evidences and sources”, has become widespread (Hatīb al-Baghdādī, I, 45; Tehānawī, I, 31). The later Hanafī methodologists, especially Abū al-ʿUsr al-Pazdawī, Shams al-ʿAmema al-Sarahsī, ʿAbd al-ʿAbd al-ʿAzīz al-Bukhārī and Ṣadr al-Sharīʿa, largely preserved Abū Hanīfa’s definition, and the Shāfiʿī methodologists preserved the definition attributed to Shāfiʿī. However, a group of usulists, including Imām al-Haramayn al-Juwaynī, Fakhr al-Dīn al-Rāzī, al-Sayf al-Dīn al-Āmidī, Jamāl al-Dīn Ibn al-Khājib, and Abū al-Barakāt al-Nasafī, defined fiqh as “the knowledge of the rulings obtained through ijtihād and istidlāl from sharī’ah evidence”, They wanted to point out the subtle difference between the sharī’ah rulings (sharī’ah), which are based on the clear statements of the Qur’ān and the Sunnah and are known to be from the religion (sharī’ah), and the opinions and rulings derived from these sharī’ah evidences by means of deduction, in other words, between the sharī’ah rulings and the legal doctrine formed around these rulings. On the other hand, Ibn al-Humām, one of the Hanafī jurists, defined fiqh as “the knowledge of what is certain among the sharīʿa ahkām” (for detailed information on these definitions, see Nizāmeddin ʿAbd al-Hamīd, pp. 11-19). These different definitions of fiqh closely affect the differences between basic concepts such as religion, shari’ah, fiqh, ahkām al-far’iyya, and the relationship between generality and specificity.

Even after fiqh became the name of the branch of science that includes the knowledge and judgements pertaining to the furu of religion and practical life, its scope remained broad, and until our age, the sciences of ilmihal, law and legal methodology, economics, politics, administration and institutions related to these sciences have been considered and analysed within the branch of fiqh in the census of Islamic sciences. The branch of jurisprudence known as usul al-fiqh (usul al-fiqh, usul al- teşrî’), which was established and developed by Muslims for the first time in the world, constitutes a sub-discipline of jurisprudence within the dual division of jurisprudence as usul-furû, Since it developed as a separate branch of science from the beginning (the first example that has survived to the present day is Imam Shāfi’ī’s al-Risāla) and a separate literature was formed in this field, the distinction of fiqh – usul al-fiqh was made instead of the above binary distinction, and as a result, the term fiqh has always meant furu al-fiqh (bk. FÜRÛ). In addition to this, some of the subjects within the whole of fiqh, either due to the necessity of education or practical needs, have been the subject of separate books written under separate names, although they are also included in general fiqh books. “al-ahkām al-sultāniyya, siyāset al-shar’iyya”, which covers administration, constitution, taxation and partly punishment; “siyar”, which deals with the law of states; “harāj” and “emwāl”, which are mostly related to tax law; “ferāiz”, which includes inheritance law; “şürüriz”, which deals with official and legal correspondence, deeds, etc. “şürût”, which deals with official and legal correspondence, deeds, etc., “edebü’l-kādî”, which talks about procedural law, “hilâf”, which is a kind of comparative law, and “hikmetü’t-teşrî'”, which corresponds to the philosophy of law, are the main examples of these branches that are the subject of special books. From the XIXth century onwards, when the legalisation movement started with the influence of the West, the sub-branches and subjects of fiqh began to be called by new names in parallel with the laws enacted, and new sub-branches of fiqh were formed. “Ahwāl al-shahsiyya” (personal and family law), “munākehāt-mufārekāt” (family law), “ukūd ve iltizāmāt” (law of obligations), “cinâyāt” (criminal law), “düstūr” or “nizām al-hukm” (constitutional law) are examples of this change. The term “fiqh” (fiqh) in Turkish is translated as “Islamic law” (Eng. Islamic law, Fr. droit musulman) and in Arabic as “al-fiqhü’l-Islâmî” (el-fiqhü’l-Islâmî), which are also the results of this change brought about by the influence of Western legal understanding.

Source. While investigating the source of fiqh and the circles influencing fiqh, it is necessary to distinguish between the emergence and development of fiqh and, accordingly, the phases of fiqh. Although there are different claims, the most important and decisive source in the birth of fiqh and its emergence as usul and furu is revelation. Revelation, which was transmitted to the ummah in the Qur’ân al-kerîm and partly in the hadiths, was the first source in regulating the relations between man and God, individual and society, and other influences could affect Islamic life after passing through the filter of this source and receiving its legitimacy from here. It is not far from the possibility that the parts of fiqh other than worship, halal and haram issues and the institutions based on them have been influenced by other cultures and civilisations throughout Islamic history, even if the limits are controversial.

Three different theses have been put forward about the influence between fiqh and other contemporary and preceding laws (Roman, Sasanian, Jāhiliyya, Jewish laws). According to orientalists such as I. Goldziher, A. von Kremer, Sceldon Amos, fiqh in the sense of “Islamic law” was borrowed from Roman law. The parts of Islamic law that Islamic law borrowed from Jewish law actually belonged to Roman law; they were first transferred to Jewish law and then to Islamic law. On the contrary, the thesis of some Muslim authors is that Islamic law was not influenced by any other law; on the contrary, it first influenced Roman law through Spain (ʿAbd al-Karim Zaydān, p. 89) and Western general law of states (Muhammad Hamīdullah, p. 55), and then French (Ḥajwī, I, 14), English (M. ʿAbd al-Hādī Sirāj, III, 7-22; John Maqdisi, pp. 135-146), and even Israeli law (Yaakov Meron, pp. 83-117) in later periods. According to the third group, which includes some orientalists such as Joseph Schacht, Sholomo Dow Goitein, S. V. Fitzgerald, H. G. Bousquet, and some Muslim legal historians, Islamic law is original, based on revelation, and has not been borrowed from any foreign law. The influence belongs to later periods and is mostly in the field of public law and this is quite limited.

The arguments of the proponents of the imputation thesis can be summarised as follows: 1. The Prophet had the opportunity to learn Roman-Byzantine law through Syria, which was under Roman rule in the East, and he quoted from this law. 2. In Kayseri, Istanbul, Alexandria and Beirut, there were madrasas teaching Roman law and courts applying this law. When these centres were taken over by the Muslims, the first Islamic jurists such as al-Awza’i and al-Shafi’i learned Roman law from these madrasas and courts and incorporated it into Islamic law. 3. In the regions formerly ruled by the Romans, Roman law infiltrated the customs and traditions of the people and passed into Islamic law through the jurists who used the same customs as a basis for legal practices. 4. Since the Jāhiliyyah and Jewish-Talmudic law were previously influenced by Roman law, Islamic law, which quoted from them, indirectly took Roman law as well. 5. Comparisons between these two laws reveal significant similarities, indicating that the latter borrowed from the former.

The answers of those who argue that Islamic law owes its birth to its own sources and that it was not influenced by other laws, especially during this period, based on historical facts can be summarised as follows: 1. The Prophet did not know the languages in which Roman law was written, and was not even literate. He travelled to Syria at the age of twenty-four and stayed there for fifteen days, except for a trip he made as an eight-year-old boy. It is not possible to teach Roman law to a young man of this age in fifteen days. 2. a) Iustinianos I (Justinian) had closed madrasas outside Rome, Istanbul and Beirut in 533 with a decree. Among the places whose madrasahs remained open, Rome was never conquered by the Muslims and Istanbul was conquered only in 1453. b) Al-Awzā’ī went to Beirut and al-Shāfi’ī to Egypt only towards the end of their lives; the birth and development of Islamic law took place long before that. c) Since Islam gave non-Muslims the right to choose their own law and this right was actually exercised by them (they were tried in their own courts), the claim of influence through the courts is also baseless. A comparative research on the Syrian-Roman code, which dates back to the V century A.D. and was used as a law in the courts of the Christians living there after the conquest of Syria by Hazrat Umar, has revealed the significant differences between these two laws and the remote possibility of influence (Kavakcı, Syrian-Roman Code and Islamic Law). 3. It is not established that any of the early jurisprudents knew Roman law and referred to it in their works. Although a limited influence through the customs and traditions living in the countries conquered by the Muslims is possible in accordance with the aims and instructions of Islam, it is not in accordance with the facts to confine this to Roman law; in this sense, it would be more appropriate to speak of the Jāhiliyya law and partly Sasanian law (Köprülü, History of Islamic and Turkish Law, pp. 16, 18 et al.; IA, IV, 611-612). Moreover, this influence does not prejudice the originality of a law. 4. The claim of influence through the Talmud is inconsistent, because Roman-Byzantine law was influenced by the Talmud after the third century, and not the other way round. Moreover, despite the slight and possibly accidental similarities between Talmudic law and fiqh, there are significant differences between these two laws. 5. There are differences in systems, institutions and norms that prevent the similarities between Roman law and Islamic law from being considered as evidence for quotation and exploitation. a) Roman law is secular in character and is divided into persons, property and qiyas. Fiqh, on the other hand, is based on revelation in terms of its source and is divided into ibādāt, muāmalāt and ukūbāt. b) In Roman law, there are extreme paternal sovereignty, husband’s sovereignty, and the institution of adoption based on patriarchalism; these are absent in Islamic law. Legal institutions and conceptions such as waqf, shuf’a, milk brotherhood, hisba, ta’zîr, transfer of debt are peculiar to fiqh. According to fiqh, a man can marry more than one woman, talaq is the husband’s right, in inheritance the man usually receives twice as much as the woman, the heir does not bear the debts of the deceased (there is no succession), and the requirement of form in legal transactions is minimised. The research on the claims of influence summarised so far caused the Orientalists to change their judgement, and the result is expressed in the following sentences: “… However, it should not be assumed that the main lines of the Islamic law of property, contracts and obligations were formed by a part of the customary law of the pre-Islamic Arabs. The idea on which such an assumption is based has lost its validity as a result of new researches on the history of Islamic law. Islamic jurisprudence was not born from an existing law, but created itself” (Schacht, Introduction to Islamic Law, pp. 18, 118).

Islamic law has a great originality in terms of its structure, content, categories and concepts compared to other laws (Roman-Germanic, socialist laws, common law). The main thing is the extraordinary original structure of Islamic law in comparison to other laws and especially to canonical law, which is religious in nature. Compared to all systems that do not have such a source, the fact that Islamic law is fundamentally based on revelation constitutes its most prominent characteristic (David, pp. 418, 424; for discussions on this subject, cf. “Fıḳh”, EI2, II, 886-891; “Fıḳh”, IA, IV, 601-608; Hel li’l-ḳānūni al-Rūmī, teʾs̱īrun ʿale’l-fıḳh; Karaman, Islamic Law, I, 31-35; Goitein, I/1-4, pp. 57-62; Fitzgerald, XXIX/4, pp. 1128-1154).

Characteristics. From a comparative point of view, fiqh (Islamic law) has some fundamental differences and characteristics compared to human law. Firstly, fiqh is divine in its source and is based on the revelation expressed in the Qur’an and authentic hadiths. Fiqh, which is based on the ijtihad of both the Prophet and other scholars, also takes its inspiration and measure from revelation. On the other hand, while the effect of legal and penal sanctions in other laws is limited to the life of this world, in Islamic law, sanctions are carried to eternal life. In addition, obedience to the law in good faith has a reward in addition to its worldly consequences, and disobedience has an afterlife responsibility and sin, which plays an important role as an incentive in addition to sanctions. In addition to worldly and material sanctions, the perception of reward and sin is effective in educating the conscience and perceiving obedience to the law as a duty of faith and servitude. In fiqh, Allah is the lawgiver. The authority of the servants is to search and discover the divine law (judgement). Ijtihad is understood as finding and revealing the divine judgement, not the human being’s self-judgement. Although the ijtihad of each mujtahid binds himself, it constitutes a rich source for the state and competent authorities in terms of codification and determining the legal provision to be applied. Fiqh has a unique classification. Since it is essential to seek and find the divine will in every judgement and practice, and since it is primarily aimed to determine the religious-legal ruling to which the taxpayer will be subjected, the science of fiqh was not built on theories and norms with a wide scope in the period of its development and formation, but the way of dealing with each issue separately and adjudicating it (casuistic, issue method) was preferred. This feature prevented fiqh from acquiring a prescriptive and dogmatic structure, and enabled different judgements and solutions to be produced according to different conditions and environments. However, since the fiqh literature, which was compiled with an issue-oriented method, provides common explanations for similar legal issues and judgements, makes legal analyses of the solutions reached, and engages in theoretical and doctrinal discussions of legal provisions, it is also possible to deduce general judgements and theories related to various sub-branches of fiqh from the legal issues and judgements. As a matter of fact, especially in the twentieth century, the number of works written with this method has increased considerably (ibid.). The basis of the fact that fiqh, which also regulates some of the relations of social life, has made it possible to establish a connection between the unchangeable divine provisions and the changing social conditions and to solve new issues within this framework, lies in the fact that instead of making a binding provision for every issue (these are quite few), it has introduced broadly framed provisions and allowed the necessity and public interest to be respected and left a wide field for ijtihad.

In the course of the development of the science of fiqh, although the distinction between public and private law adopted by Western laws originating from Roman law was not made, the literature mentions the field of law considered as the rights of God close to the concept of public law and the field of law considered as the rights of servants close to the concept of private law. However, this classification was not taken as a basis during the compilation of fiqh; instead, it was based on the needs of Muslims in their practical lives, and information and provisions related to worship (ibādāt), then rights and debt relations (muāmalāt), and then criminal law (cināyāt, ukūbāt) were included. Although the law of wills and inheritance is included in the framework of rights and debt relations, it is also placed at the end of fiqh books since it is necessary at the end of human life. Although the classification is generally in this way, some authors took different paths and, for example, put the section on criminal law at the end (Karaman, Islamic Law, I, 25-29).

History. In the changes and developments of fiqh from its birth to the present day, sometimes individuals and generations, and sometimes political, social and cultural conditions have played a decisive role. Therefore, the periods of fiqh are listed as the Prophet, the Companions, the Abbasids, the Seljuks, from the Mongol invasion to the Mecelle and from the Mecelle to the present day.

The Prophet’s era is the most important of the jurisprudence periods because the legislation and practice based on revelation or under the supervision of revelation were completed in this period, and therefore this period became a source and example for the later periods. In the part of this period that took place in Mecca before the Hijrah, the emphasis was on faith, worship and ethics rather than the regulation of social relations, and in a sense, the infrastructure for fiqh was created. In Medina, where the Messenger of Allah (peace be upon him) was adopted as the leader of the society and invited to Medina, Islam has tended to regulate social life as well as the relations between God and individuals, and a number of provisions and rules have been made regarding worship, jihad, family and inheritance on the one hand, and constitution, punishment, judicial procedure, transactions and inter-state relations on the other. All these rulings and rules were revealed in two ways. a) An event would occur or a question would be asked which would require an explanation of a divine ruling, upon which either a verse would be revealed or the ruling would be communicated to the Prophet, who would explain and implement the ruling in his own words and style (sunnah). Sometimes there was no revelation, and the Messenger of Allah would make an application based on his knowledge and experience of Allah’s will (ijtihad), and if he made a mistake, he would be corrected by Allah. In the Qurʾān, the expression “yesʾalūnnak” (they ask you) occurs fifteen times (see M. F. ʿAbd al-Bābāqī, al-Muʿjam, “sʾal” md.), eight of which are related to jurisprudence. The expression “yestaftūnnak” (They ask you to explain the religious ruling; an-Nisā 4/127, 176) is mentioned in two places. In the books of al-asbāb al-nuzūl, many examples of hadiths are mentioned as reasons for the revelation and the explanation of the religious ruling. b) Some rulings were directly announced without waiting for an event or a question, because the time and place in the divine plan had come. Because the aim of Islam was not only to meet the needs of the society at a certain sociocultural level; Islam was both meeting the needs of the society to which it was addressed, developing them, and bringing universal provisions and values.

Fiqh had three main features in this period: Tedrîc, convenience and naskh. Tedrīj is the gradual introduction of rulings by spreading them over time, thus allowing the society to prepare and assimilate the new rulings by the society, and finally completing the teşrîm by bringing the degrees and parts together. In terms of time, the gradualism took twenty-three years. The examples of prayer, zakat, prohibition of liquor and interest, and jihad are interesting in terms of digestion, preparation, and completion in stages. Simplicity, on the other hand, is not to put the obstacle of difficulty between religion and its interlocutor by taking into account the nature, inherent characteristics and needs of human beings in legislation, rule-making and practice, and to take endearment and facilitation as a basis, apart from the practices that are natural in evolutionary education. Distributing the acts of worship to short parts of the day, making objects that meet people’s natural needs permissible, accepting conditions such as illness, travelling, pressure, mistake, forgetting as excuses, and making harams permissible in case of hardship are important examples of facilitation. The nullification, which is a subject of debate among Islamic scholars, has also been realised in the form of introducing some rulings first and then abolishing them, depending on the wisdom of practice and facilitation. Although the study, teaching and writing of the usul and furu parts of fiqh as separate branches of science took place in later periods, the foundations of both usul and furu were laid in the Prophet’s era and even completed in principle. The provisions related to fiqh are either directly stated by the Qur’ân al-kerîm or the Sunnah, or they are transmitted through thinking and pondering on them (ijtihad: syllogism, istidlâl), or through an alliance (ijmâ) based on one of them. In the first period of fiqh, the first two of these sources were completed, while the other sources and the methods of deducing judgements were either used or explained to be used in the future. The verses and hadiths have brought sufficient explanations in all areas of individual and social life such as worship, family life, social life, human relations, individual-society relations, and inter-state relations, sometimes with general provisions and principles, and sometimes with special and detailed provisions, which can be a measure and example for the following periods, and in this respect, the roof of Islamic jurisprudence was completed during the Prophet’s era. The number of verses related to fiqh is around 200, based on the fact that the verses bring clear and direct judgements. However, this number increases when the judgements that can be reached through various ways of reasoning are taken into consideration. For example, Abū Bakr Ibn al-ʿArabī’s Aḥkām al-Ḳurʾān is about the verses that bring jurisprudential rulings, and in the work, approximately 800 verses are emphasised and various rulings are deduced from them (Ḥajwī, I, 26). As a source of fiqh, the Sunnah explains the verses of the Qur’an that need to be explained, and fills the gaps that need to be filled in the matters that it does not touch upon. The broad explanations and application examples of the subjects of faith and Islam, basic worships such as prayer, fasting, pilgrimage, zakat, etc., which are explained in general terms in the Qur’an, are the areas where the Sunnah’s function of explanation is seen; hundreds of examples such as alms of al-fitr, the vitir prayer, some punishments, the prohibition of taking a woman’s aunt and aunt as a second wife, the forbidden meat of domestic donkeys, and the expiation for breaking the fast are the areas where the function of filling the gaps is seen. According to Ibn al-Qayyim al-Jawziyya, the number of hadiths that form the basis of the provisions of fiqh is around 500, if different or repeated narrations on the same subject are excluded; the number of hadiths that explain the hadiths related to these basic provisions, give details, and state the conditions and conditions reaches 4000 (Iʿlâm al-muvaḳḳıʿîn, II, 245).

Among the jurisprudence belonging to the Meccan period are important acts of worship such as ghusl, ablution, tahārah from najāsah, prayer, and Friday prayers. In the first year of the Medinan period, the sermon, adhan, marriage, jihad, municipal order; in the second year, fasting, Eid prayers, almsgiving, sacrifice, zakat, changing the qibla, spoils and their division; in the third year, inheritance provisions, divorce; In the fourth year, prayer while travelling and in dangerous situations, stoning, land, tayammum, punishment for adultery, veiling, entering houses with permission, hajj and ‘umrah; in the fifth year, prayer for rain and prayer, îlâ; in the sixth year, international agreements, provisions regarding obstruction on the way to hajj and ‘umrah, prohibition of drinking and gambling, dhihar, waqf, punishment for rebellion and banditry; In the seventh year, the prohibition of the domestic donkey, carnivores hunted with their teeth and claws, agricultural partnership; in the eighth year, the sanctity and inviolability of Mecca, qisas, the prohibition of the sale of liquor and temporary marriage, the equality of people before the law, the permission to visit the graves; In the ninth year, the prohibition of circumambulation in the nude, moulaane; in the tenth year, the proclamation of human rights, will, generation, maintenance and some provisions on debts, the individuality of punishment, and the prohibition of interest (Karaman, History of Islamic Law, pp. 78-104).

The second period of the history of fiqh is divided into two as the Khulefâ-yi Râshidîn and Umayyads with a breaking point. Although the generation of the Companions had a decisive role in fiqh in both periods, the Umayyad period constitutes an important turning point in terms of the relationship between politics and fiqh because the caliphate was transformed into a sultanate. The period of the Khulefā-yi Rāshidīn was the period of the evolution of religious life and the revolution brought to humanity by Islam. In this period, everything was for religion, for realising the aims of religion. In the Umayyad period, political stability and material development began to take the place of virtue and spiritual development, and the opposition (Hawāric and Shī’a) caused by cultural mixing, sultanate and political oppression prepared the ground for new ideas and theories, especially in the field of public law of jurisprudence. One of the important developments in terms of the sources of fiqh during the period of the Khulefā-yi Rāshidīn was the end of revelation and the possibility of submitting the ijtihad of the Companions to the Prophet and obtaining his approval. Henceforth, jurisprudence was based on the limited teachings of the Book and the Sunnah, as well as r’y ijtihad. In this period, the meaning of re’y was to make judgements on the issues that the Book and the Sunnah did not explain the rulings of, by relying on the explanations of the Qur’an in parts and as a whole. Although they were not named as terms, the methods that were later named as istihsan, istislâh, custom, and qiyas were also used within the framework of re’y. The first and second caliphs resorted to consultation, especially in the field of public law, in order to reduce disagreement, to ensure unity and to increase the probability of hitting the intention of the shari’ah, and the caliphs did not allow the members of the shūra to leave Medina until the reign of Hazrat Uthman. The jurisprudence of the Shūra was considered stronger and more binding than individual jurisprudence, whereas individual jurisprudence was binding only on its owners and was one of the options for those who could not afford jurisprudence. Although it did not take the form of a sect as a religious-social institution, there were many differences of judgement and judgement among the Companions, in a sense, there were as many sects as the number of mujtahids. The main reasons for the differences in methods and opinions among the Companions are the lack of knowledge based on the source of revelation of the Companions who were away from Medina for conquests and other purposes, different understanding of the information obtained from this source, error, forgetting, reconciliation of seemingly contradictory verses in different ways, or adoption of different opinions on issues about which there is no verse (for examples, see Karaman, Ijtihad in Islamic Law, pp. 47-54). Although there are also claims to the contrary, it is not possible to consider all of the Companions as jurisprudents at the level of mujtahid. In fact, the Companions who carried fiqh material to those who were more knowledgeable and intelligent than them and the Companions who understood, interpreted, and deduced new rulings from this material constitute a minority among the more than 100,000 Companions (Shīrāzī, pp. 35-36; al-Ghazālī, al-Menḫūl, pp. 469-470; al-Suyūṭī, al-Rad ʿalā men aḫlada ile al-arż, pp. 187-190). In terms of the number of fatwas they issued, the faqihs of the ashab were divided into three groups. The Companions whose fatwas were so numerous that they constituted one large volume each were Hazrat ‘Umar, ‘Ali, Ibn Mas’ūd, Ibn ‘Umar, Ibn ‘Abbas, Zayd b. Sābit, and Hazrat ‘A’isha. The fatwas given by about twenty Companions, including the Prophet Abū Bakr, Uthman, Abū Mūsā, Talha, Zubayr, etc., are enough to fill a small book. The fatwas given by about 120 Companions in the third group are enough to fill a volume (Ibn Hajar, I, 14; Hajwī, I, 278).

During this period, some rules and principles were observed while making ijtihad and giving fatwa, and these set an example for many jurists in later periods. a) The Companions opened the door to re’y ijtihad without consulting the source of revelation and submitting it to its approval. The letter sent by Hazrat ‘Umar to Abū Mūsā al-Ash’arī is an important document in this regard (Shīrāzī, pp. 39-40). b) The Companions did not consider the judgements they arrived at through ijtihad and reasoning as definitive, did not attribute them to Allah and His Messenger, and were meticulous in separating their own opinions from the clear provisions of these two sources. c) Theoretical jurisprudence has not yet begun; it is waited until the events and relations that concern jurisprudence occur, and when the practical need arises, an effort is made to find a ruling. d) Rulings that are known to be based on a certain cause and wisdom are changed when it is determined that the cause and wisdom have changed, and the application of some rulings is suspended in order to protect public order, to realise rights and justice, and to eliminate necessities. The practices of Hz ‘Umar on issues such as not giving a share of the state’s zakat income to the muellefe-i kulûba, counting three talaqs pronounced at once as three talaqs in terms of preventive and punitive measures for men, introducing some convenience in determining and paying the amount of diet due to the increase in camel prices, not cutting off the hands of those who steal due to hunger and famine, making the tradesmen and craftsmen pay for the customer goods lost in their workplaces even if they are not at fault. The practices of ‘Umar are examples of this attitude and approach. e) Due to the change in economic and social conditions, permissive provisions and options that would have bad consequences that the Shari’ah did not intend were not applied. The prohibition of marrying the women of the Ahl al-Bayt, not distributing the lands of Syria and Iraq as booty to the veterans, Hz. ‘Uthman’s four rak’ah obligatory prayer in Mina during the hajj season, which was four rak’ah, was shortened to two rak’ahs due to travelling, but he made it four rak’ahs in order not to mislead the people. f) The Companions judged some events and relations by likening them to the Prophet’s judgements on similar matters, and judged those that were not similar by saying “it is good, beneficial, and beneficial”; war against those who do not pay zakat, collecting the Qur’an in a mushaf, adding an external call to prayer for Friday, and limiting prices are judgements made in this way.

Despite the persistent denials and negative interpretations of the Orientalists, the researches carried out in the last fifty years have revealed that, as in the other basic Islamic sciences, the compilation of fiqh dates back to the Prophet’s era. Although the writing of fiqh treatises in the sense that it is understood today started at the end of the Sahāba period and developed during the Umayyad period. However, the fiqh writings that were the source of these treatises and the books to be written in later periods started earlier. Fuat Sezgin has identified some important examples that reveal this fact. a) Hishām stated that his father Urwa b. Zubayr had many fiqh writings, which were burnt in the Harrah incident (63/683) and that his father was very upset about it. b) It is known that the Messenger of Allah gave or sent written instructions to some of the Companions. After ‘Umar b. ‘Abd al-‘Abd al-‘Aziz became caliph, he ordered the discovery of two writings on taxation and alms, one of which belonged to the Messenger of Allah and the other to the Prophet ‘Umar; when the writings were found, he asked for copies to be made, and the original writings remained with Abu Bakr b. Muhammad b. ‘Amr b. Hazm (Abu Bakr b. Hazm). Amr b. Hazm had already mentioned this writing of the Prophet. c) Anas b. Maalik received a letter from Caliph Abu Bakr concerning tax and zakat. d) The grandson of Hazrat ‘Umar reported that after the death of his grandfather, they found a letter among his property concerning zakat and tax on animals. e) Ibn al-Hanafiyya, the son of Hazrat ‘Ali, stated that his father gave him a letter to take to Hazrat ‘Uthman and that it contained the Prophet’s instructions on zakat. f) Ancient sources mention a book describing the Messenger of Allah’s method of tashri’ which was kept by Sa’d b. ‘Ubādah. g) Two letters of Hazrat ‘Umar, one addressed to Abū Mūsā and the other to Mu’āwiya, on the subject of qiyas are mentioned in many sources and their texts are given (GAS, I/3, pp. 3-7).

During the Umayyad period, which started with the fifth Caliph Hz Hasan’s abdication in favour of Mu’awiya and lasted until 132 (750), the generation of the Companions passed away and were replaced by the generation of the tâbiîn. The narration of hadith, which Hz. Umar had banned in order to spread the knowledge of the Qur’an and to prevent the mixing of foreign elements with it, resumed after him as the Companions dispersed throughout the Islamic world and conveyed what they had seen and heard from the Prophet in the places they went; in the meantime, the incident of fabricating hadith for various purposes also started. Unlike the period of Hulefā-yi Rāshidīn, the Umayyads deviated from the letter and spirit of the Book and Sunnah, especially in the field of public law (Abū Nuaym, II, 167; Süyūtī, Tārīḫu’l-ḫulefāʾ, p. 196; Karaman, History of Islamic Law, p. 163 et al. Thinking that the widespread spread of this situation would harm Islam, the sahāba and tābiîn gathered in Hijaz and especially in Medina and began to compile authentic hadiths. For the same purpose, ready-made and theoretical fiqh rulings were produced without waiting for an event to occur. The mujtahids of the tâbiîn generation raised by the Sahâbîs were divided into two groups as Hijâziyyûn (Ahl al-hadîth) and Irâqiyyûn (Ahl al-râ’y) based on the difference in masters, environment and knowledge. In the era of the great tâbiîn, the imam of the first of these two groups was Sa’id b. Musayyeb and the imam of the second was Ibrâhim an-Nahaî. Ibn Mas’ûd, one of the companions, went to Iraq and settled in Kûfa, where he worked as a teacher, judge and mufti, and when Hazrat Ali became caliph, the caliphate centre was moved from Medina to Kûfa. In addition to Ibn Mas’ūd, other Companions such as Sa’d b. Abū Waqqās, Ammār b. Yāṣir, Abū Mūsā al-Ash’arī, Mugīra b. Shu’be, Anas b. Mālik, Hudhayfah b. Yemān, Imrān b. Husayn, and Companions such as Ibn ‘Abbās came with Hazrat ‘Ali. Since the Iraqis learnt jurisprudence from them and believed that all of the Sunnah had been transmitted to Iraq through them, they considered themselves equal to the jurists of Medina and put forward different opinions from them on many issues. There were more Companions in Medina. The Messenger of Allah left about 12,000 Companions in Medina after returning from the Hunayn Campaign, 10,000 of them completed their lives here, and about 2000 of them dispersed to other Islamic regions. The prominent Companions who transmitted knowledge of jurisprudence and hadith in Medina were Hz. Abu Bakr, ‘Umar, ‘Uthman, ‘Ali (until he went to Kufa), Zayd b. Sâbit, ‘A’ishah, Umm Salama, Hafsa, Ibn ‘Umar, Ubay b. Ka’b, Talha b. Ubaydullah, ‘Abdurrahman b. ‘Awf, Abu Huraira. ‘Awf, Abū Hurayrah; in Egypt, Zubayr b. ‘Awwām, Abū Zar al-Ghifārī, ‘Amr b. ‘As, ‘Abdullah b. ‘Amr; in Damascus, Mu’āz b. Jabal, Abū al-Darḍā, Mu’āwiyah; in North Africa, Ukba b. ‘Amr, Mu’āwiyah b. Hudhayj, Abū Lubāba, Ruwayfi’ b. Sābit.

The jurisprudents of each region made some jurisprudential deductions and ijtihad based on the information they received from the Companions, the fatwas and judgements given by them and their disciples, and their own customs and traditions, and from time to time they disagreed with the jurists of other regions. However, the most important grouping in terms of the history of fiqh occurred between the fuqaha of Iraq (Kufa) and Hijaz (Medina). Since the knowledge of fiqh and hadith was more abundant in Medina, ‘Umar b. ‘Abd al-‘Aziz, who wanted to revive the Sunnah of the first caliphs, sent an instruction to Abu Bakr b. Hazm, who was first a qadi and then a governor in Medina, and asked him to collect hadiths from the Companions and the tâbiîn living in this region, write them down and send them to him. The people of Medina did not use the narrations from Kufa and Damascus unless there was a confirmation from the scholars living in their own region, and they did not consider them valid as evidence; their reasoning was the negative effect of the political events, turmoil and fitnahs occurring in this region on r’y and narrations. At the end of the Umayyad period and the beginning of the Abbasid period, Ahl al-Ra’y would emerge from the Iraqi madrasah and Ahl al-‘eser (Ahl al-hadîs) from the Hijaz madrasah. Although the dispute between the Hijaz and Iraqi groups was mostly based on the difference of environment and teacher (source of knowledge), there were also some procedural differences between these two schools. Both groups use the Book, the Sunnah and the ijma of the Companions as sources of judgement. The Hijazis value the customs of the people of Medina as the living Sunnah of the Prophet, and their hadith materials are richer due to their neighbourhood. The Iraqis do not accept the custom of Medina as a source, their hadith materials are scarce, they make more meticulous sorting on the existing ones, and they give more place to r’y ijtihad. Although almost all of the faqihs of the Sahāba were Arabs, there were many non-Arabs (mawālī) among the faqihs of the tābiîn. It is possible to list the main scholars representing the science of fiqh in important centres in this period as follows: Sa’id b. Musayyeb, Urwa b. Zubayr, Kāsim b. Muhammad, Khārja b. Zayd, Abū Bakr b. ‘Abd al-Raḥmān, Sulayman b. Yathār, Ubaydullah b. ‘Abdullah b. ‘Utba, Abū Bakr b. Hazm, Abū Ja’far Muhammad al-Baqir, Rebīatra’y, Ibn Shihāb al-Zuhrī in Medina; Atā b. Abū Rebāh, Mujāhid b. Jabr, Ikrimah, Sufyān b. ‘Uyayna in Mecca; Sufyān b. Uyayna; in Basra, Hasan al-Basrî, Muhammad b. Sīrîn, Qatāda b. Diāma; in Kufa, Alqamah b. Qays, Shurayh b. Khāris, Masrūq b. Ajda’, ‘Abd al-Rahman b. Abū Leyla, Ibrāhīm b. Abū Leyla, Ibrāhīm al-Nahā’ī, Hammād b. Abū Sulaymānī; Mekhūl b. Abū Muslim, ‘Umar b. ‘Abd al-‘Aziz, Abū Idrīs al-Hawlānī in Damascus; Leys b. Sa’d in Egypt.

Although hadiths were partially collected in written sources before fiqh, their classification according to certain systems took place after fiqh was organised. It is understood that the first systematic fiqh books were written during the Umayyad period (at the end of the first [VIIth] century and the beginning of the second [VIIIth] century). According to Ibn al-Qayyim, Ibn Shihāb al-Zuhrī’s fatwas were collected in three volumes. The fatwas of al-Ḥasan al-Basrī, organised by subject, are seven volumes (Iʿlâm al-muvaḳḳıʿîn, I, 26). Four books written during this period have survived to the present day: Sulaym b. Qays al-Khilālī’s book of fiqh, Qatāda b. Diāma’s al-Manāsik, Zayd b. ʿAlī’s Menāsik al-ḥaj wa ādāb al-ḥaj, and al-Majmūʿ. The books that are known to have been written in this period but have not survived to the present day are so many that they constitute a long list (Sezgin, I/3, pp. 10-26).

The Abbasid period is the age of maturity of fiqh. Since this dynasty aspired to power with a cause such as returning the caliphate to its rightful owner and reviving the era of the Khulefâ-yi Râshidîn, the caliphs acted as the caliph of the Messenger of Allah and the president of the Muslims in both religious and world affairs, albeit ostensibly. As a natural consequence, they were closely interested in the words, deeds, thoughts and beliefs of the religious scholars. As a matter of fact, Abū Ja’far al-Mansūr granted favours to the scholars who did not contradict his politics, and on the other hand, he had Abū Hanīfa flogged for refusing to accept his appointment and secretly supporting the opposition. Mahdī-Billāh was very harsh against heretics and set up a department to follow and punish them. Hârûnürreşîd appointed Abû Yûsuf as the head of the judiciary and never let him leave his side. Al-Ma’mûn issued a decree stating that the Qur’ân al-kerîm had been created, had the marriage of mut’a debated, and attempted to issue a decree on its permissibility. These attitudes of the Abbasids also affected fiqh in terms of knowledge and practice. Irrigation system, taxes, canals, various divans, etc. were religious affairs in a way, and the regulations to be made in this regard should not be contrary to the principles of Sharia. For this reason, Abū Yūsuf wrote his work al-Ḫarāj and other mujtahids put forward various solutions and opinions. There are other factors that enabled the development and expansion of fiqh in this period. 1. To the Qur’an and Sunnah, which were the sources of fiqh in the era of the Sahāba, the ijtihād and practices of the Sahāba were added in the era of the tābiîn, and the ijtihād of the tābiîn were added in the later generation of the tabau’t-tābiîn. 2. Theoretical and hypothetical jurisprudence studies accelerated; issues such as divorce, oaths, vows, sacrifices, and pardon were emphasised and ideas were practised. This movement developed by Iraqi jurists was later joined by Shafi’i and Mālikī jurists. 3. The borders of the Islamic country expanded with new conquests, and many tribes either accepted Islam or became subject to Muslims and brought their cultures into the common culture of the ummah. The jurisprudents reviewed these cultures, customs and traditions while searching for answers and solutions to new needs, and some of them were rejected, some were accepted, and some were modified and incorporated into jurisprudence. 4. Scholars travelled for purposes such as pilgrimage, jihad and science, and found the opportunity to meet with each other and exchange information and ideas. For example, al-Rabi’atra’y travelled from Medina to Iraq and back, Muhammad b. Hasan al-Shaybānī went to Medina and read Imam Mālik’s al-Muvaṭṭaʾ, and Shāfi’ī went to Medina, Iraq and Egypt. 5. The disagreement of ijtihad, which was seen in the era of the Sahāba and the great tābiîn, continued to increase as the number of fiqh scholars and issues increased and the customs, traditions and needs diversified in the expanding Islamic world, in addition to the previous reasons. 6. The door of ijtihad is wide open and the freedom of ijtihad is fully available; those who have the power to do ijtihad understand and live the religion and those who do not have the power to do ijtihad follow the mujtahids. The sects, which had not yet been born in the previous period, started to emerge in this period for the following reasons: a) Although the previous mujtahids did not produce judgements in all subjects of fiqh with systematic ijtihad, the mujtahids of this period did so. b) The ijtihads were collected in certain books and ease of access was provided for those who wanted to benefit from them. c) Schools of hadith and re’y emerged within the Hijaz and Iraqi groups, and debates and discussions were held between the members of these schools. d) These debates led the mujtahids belonging to certain schools to write down their methods of ijtihad systematically and thus the science of usul al-fiqh was born. In this period, sects began to emerge in the sense of “a certain mujtahid’s unique method of ijtihad and the set of fiqh rulings obtained by this method”, but until the IVth (X.) century, the Muslim people were not divided into four sects and the number of fiqh sects was not four. The sects of Hasan al-Basrî, Abû Hanîfa, Evzâî, Sufyân al-Sawrî, Leys b. Sa’d, Mâlik b. Anas, Sufyân b. Uyayna, Shâfi’î and later Ishaq b. Râhûya, Abû Sevr, Ahmad b. Hanbal, Dâvûd al-Zâhirî, Ibn Jarîr al-Tabarî are famous among many others. Each of these sects has different methods of ijtihad, their opinions and judgements based on them, and their followers spread in various regions.

At the beginning of the Abbasid period, a new grouping, known as r’yists and hadithists, emerged in relation to the issue of the place and value to be given to r’y and hadith in making judgements, which had been debated among the jurists. When the extremists and moderates of each of them are evaluated separately, four different groups can be mentioned. a) The extreme re’yists. This group, which did not accept the Sunnah as a source of evidence and judgement and relied on the Qur’an and r’ee as evidence, disappeared in time and left no works. The views and arguments of this group, which is presumed to have originated from the Basra Mu’tazilites or the Khārijites, were narrated by Imam Shāfi’ī (al-Üm, VII, 250). b) Moderate rationalists. Although they accept the Sunnah as evidence, they use meticulous measures to determine its authenticity and abstain from narrating hadith. They do not hesitate to use methods and sources within the scope of re’y, such as qiyas, istihsan, and maslahat; they produce judgements on hypothetical issues, and make judgements based on what the masters have said. Ibn Abū Leyla, Abū Hanīfa, al-Rabi’ah, al-Rabi’ah, Zuafar b. al-Husayl, al-Awzā’ī, Sufyān al-Sawrī, Mālik b. Anas, Abū Yūsuf, Muḥammad b. Ḥasan al-Shaybānī, and ‘Uthman al-Battī belong to this group. c) Extremists. They do not accept r’y ijtihad and especially qiyas, which is the most important part of it, and the fatwas of the sahāba and tābiîn as evidence. This attitude, which is also attributed to some Mu’tazilite imams, belongs especially to Dāwūd al-Zāhirī, the imam of the sect known as Zāhiriyya, and his followers. d) Moderate authors. In general, hadithists are moderate authors. Although they do not reject re’y and qiyas, they rarely resort to them, they consider the fatwas of the Companions and Tâbiîn as a source in addition to the hadiths; they do not prefer any re’y to hadith, and they do not perform fiqh on hypothetical issues. Shu’be b. Hajjāj, Hammād b. Zayd, Abū Awāna al-Wāsṭī, Ibn Lehīa, Ma’mer b. Rāshid, Lays b. Sa’d, Sufyān b. Uyayna, Wajī’ b. Jarrah, Sharīq b. Abdullah, Fudayl b. Abdullah, Fudayl b. Iyaz, Abdullah b. Mubarak, Yahyâ b. Saîd al-Kattân, Abdurrezzâq al-San’ânî, Abû Dâwûd al-Tayâlisî, Abû Bakr b. Abū Shaybah, Ahmad b. Ḥanbal, and the authors of the six famous books of ḥadīth from the later stratum are the prominent of the moderate authors (Ibn Qutaybah, pp. 219-230; Shah Waliyyullah al-Dihlawī, Ḥujjatullāhi’l-bāliġa, I, 317). The authors of fiqh and the history of sects have placed the famous imams of the sects in different groups, taking into account the extremism and moderation in the followers of r’y and works. Ibn Qutayba did not mention Ahmad b. Ḥanbal’s name as a jurist and included the other three imams in the list of rationalists (al-Maʿārif, p. 216). Al-Maqdisī in Aḥsen al-taḳāsīm, probably by giving different meanings to the terms, in one place mentions Ahmad b. Ḥanbal as a jurist. Hanbal as a hadithist rather than a jurisprudent, whereas he included the Hanafīs, Mālikīs, Shāfi’īs, and Zāhirīs in the sects of jurisprudence; in one place he counted the Shāfi’īs as ahl al-ḥadīth and the Hanafīs as ahl al-rā’y; and in another place he listed Abū Hanīfa and Shāfi’ī as rā’yists and Ibn Ḥanbal and his followers as hadithists (pp. 37, 127, 142). Shahristānī identified Imam Mālik, Shāfi’ī, Sufyān al-Sawrī, Ahmad b. Ḥanbal and Dāwūd al-Zāhirī’s followers as ahl al-hadīth and Abū Hanīfa and his followers as ahl al-rā’y (al-Milal, I, 365-368). According to Ibn Khaldūn, Ahl al-Hijaz are scholars and hadithists, while Ahl al-Iraq are re’yists. The imam of the former is Mâlik and the imam of the latter is Abû Hanîfa. Shafi’i combined these two methods by benefiting from Abū Hanīfa and Mālik. Ahmad b. Ḥanbal, on the other hand, was a muhaddith; however, he read and benefited from his disciple Abū Ḥanīfa’s disciple, and he compiled the Hanbalī fiqh (Muḳaddimah, III, 1046-1050).

As for the composition of fiqh during the Abbasid period, it is known that partly hadiths and fiqh had been collected and written down in earlier periods. The compilation of all Islamic sciences other than these two disciplines began in the Abbasid period (al-Suyūtī, Tārīḫu’l-ḫulefāʾ, p. 261). Among these sciences, the study of sunnah, fiqh, and usul al-fiqh made significant progress in this century. a) Sunnah. The transcription of the Sunnah into books according to the subjects was carried out in this period and the fiqh books that had been written according to this method were taken as an example. The compilation of the six books of hadith (Kütüb-i Sitte) was also in this period. b) Fiqh. The compilation of fiqh, which started in the Umayyad period, reached its peak in terms of quantity and quality in this period. The fiqh books compiled by fiqh scholars such as ‘Abdullah b. Mubārak, Abū ‘Asr, Ibrāhīm al-Nahā’ī, Hammād b. Abū Sulaymān (Ibn al-Nadīm, pp. 297-319) have not survived to the present day, but Imam Mālik’s al-Muvaṭṭṭaʾ, Imam Muhammad’s al-Mabsūṭ, al-Ās̱ār, Abū Yūsuf’s al-Ḫarāj and Imam Shāfi’ī’s al-Um, which contain the hadīths, the fatwas of the Sahāba and tābiîn, and his own ijtihad, have survived to the present day and have been studied and printed many times. The writing system followed in these works, which also set an example for later fiqh books, consists of bringing together the issues and their rulings within a subject (book, bab, chapter), mentioning their evidences, and refuting them by responding to different ijtihad. The fact that a casuistic system is followed in fiqh books can be explained by the fact that fiqh is closely connected with daily life and problems, that facts play an important role in determining the agenda and systematics of fiqh discussions, that fiqh has developed in the form of solutions to individual issues since the beginning, and that fiqh books aim to compile the fiqh solutions and approaches brought by jurists to the urgent and current issues and needs of Muslims. In addition to this, the idea that dealing with each fiqh issue in its own conditions would be more accurate and just than solving similar issues with a general principle and judgement can also be added to this. However, the jurists mentioned the principles and general rulings that they relied on and kept in their minds while deducing the rulings of fiqh issues in the books of jurisprudence and kavāid, not in the books of fiqh (fürū). c) The method of fiqh. Differences of opinion among the fuqaha in terms of principles and methodology and the discussions related to them occurred long before the compilation of fiqh. These disputes and discussions led to the writing of books of mutual refutations on the one hand, and to the emergence of the science of jurisprudence on the other. The mujtahids had to compile and write down the evidences they used, the rules of deducing and interpreting judgements from the evidences, and the rules of reconciliation when the evidences seemed to contradict, in order to save the discussions and the causes of dispute from disorganisation and to put them on a basis, and this formed the science of usul al-fiqh. Some books of usul al-fiqh written in later periods were written in the form of compiling the procedural rules obtained by analysing the judgements revealed by a certain mujtahid with his ijtihad. Although it is mentioned that Abū Yūsuf and Imam Muhammad also wrote books on usul (M. Zāhid Kevserī, Ḥüsnü’t-teḳāḍī, p. 33; ibid, Bulūġu’l-amānī, p. 67), they have not survived, and the first extant book of usul is Imam Shāfiʿī’s al-Risāla, which deals with the Qurʾān and its method of explaining judgements, nāsih-mensuh, haber al-wāḥid, qiyas, istihsan, sunnah and its relation to the Qurʾān, hidden defects of hadīths, ijmā, ijtihād, and disagreement. While the jurisprudence and usul of fiqh were being compiled, many terms such as fard, wājib, mendūb, sunnah, haram, makruh, condition, rūfun, illa, reason, etc., whose definitions and scope had not been finalised in previous periods, came to be widely used, and some terms gained clarity and certainty (Ibn al-Qayyim, Iʿlâm al-muvaḳḳḳıʿîn, I, 40 ff. Shah Waliyyullah al-Dihlawī, al-Inṣāf, pp. 7 ff.).

The end of the Abbasids and the Seljuk period were periods of stagnation in fiqh. Although the shaking of the central authority and the establishment of many Islamic states, the friendly and hostile relations between these states, the mutual interaction of various cultures, the emergence and spread of many right and wrong ideas, beliefs and thoughts, etc. factors affected the intellectual and cultural life and scientific developments in the Islamic society both positively and negatively, the rise of the evolution graph in the science of fiqh in this period stopped and even started to move downwards. The free and absolute ijtihad of the era of the great mujtahids and the imams of the sects, the studies that brought direct solutions and enlightenment to legal and religious life from the sources of the Book and Sunnah stopped, the spirit of imitation began to take its place, endless useless discussions became widespread, sectarian fanaticism settled and the door of ijtihad was closed. The spirit and mentality of taqlid, negative debates and discussions, and sectarian fanaticism are the main aspects that characterise this period.

The spirit and mentality of taqlid. The fact that the scholars and the people who were engaged in fiqh felt themselves obliged to abandon ijtihad and adhere to a certain mujtahid, and that they considered the opinions and ijtihad of the mujtahids as binding as revelation is a mentality of imitation, and this mentality is a product of this period. The following words of Abū al-Hasan al-Karhī, one of the Hanafi jurists, are like the definition of the spirit and mentality of imitation: “Every verse that does not conform to the ruling of our sect has either been interpreted or has been annulled; the dissenting hadiths are the same; either they have been interpreted and not taken in their literal meaning, or the hadith has been annulled” (Risāla, p. 84). According to this understanding, it is not the verses and hadiths that bind the jurist, but the words of the imams of the sect; if a verse or hadith appears to be contrary to these words, the imam’s word will be taken, and the verses will be interpreted accordingly, or they will be deemed to have been abrogated. Another manifestation of the same mentality is that Rukn al-Islām al-Juwaynī, the father of Imām al-Haramaynī of the Shāfiʿī sect, abandoned his sectarian prejudice and abandoned his attempt to write a book called al-Muḥīṭ based on authentic hadīths after being criticised by Ahmad b. Husayn al-Bayhaqakī (al-Subkī, V, 77-90). The main factors that caused the imitation mentality to take root can be summarised as follows: a) Adult students. Every imam of each sect had well-educated students who gained the respect and trust of the people in their time. The excessive respect and loyalty of these students, who were themselves scholars, towards their teachers, and the priority given by the master to his students in duties and benefits influenced later students and the public, and gradually prepared the ground for the imitation mentality to take root. b) Politics, the interests of qiyas and waqf. In times when interests and positions were given to the students of a certain imam, those who obtained the licence of ijtihad preferred not to disclose these qualifications and to carry out their ijtihad within the imam’s sect and method. In earlier periods, qadis were chosen among mujtahids, but as the need for legal stability gradually prevailed, qadis who were affiliated with a mujtahid whose ijtihad had been compiled in a book began to be preferred. The fact that the heads of state and viziers favoured a certain sect also gave priority to the scholars belonging to this sect in the assignment of duties. As a matter of fact, the Seljuks mostly favoured the Hanafi madhhab. The Abbasids’ inclination towards this sect since Abū Yūsuf and its suitability for Seljuk politics played a role in this preference. After Nizâmülmülk, who put an end to the oppression and persecution of Ash’arites and Shafi’is by Tugrul Beg’s vizier Amîdülmülk al-Kündürî and enabled the scholars of these sects to return to their homeland, the Shafi’i sect gained the right to life in the country (IA, X, 403; Sübkî, III, 393; Ibn al-Asîr, X, 31, 209). Mahmud of Ghaznavid in the east and Salāhaddīn-i Ayyūbī in the west provided the same opportunity for the Shāfi’i sect. The allocation of some foundation benefits to scholars and students of a certain sect also led to the establishment of the spirit of taqlid (Sha’rānī, I, 32). c) Tedvin. Editing the madhhab of the mujtahid and putting it into books made it easier to apply for benefit, and this development both helped the survival of that madhhab and encouraged those who grew up to be lazy.

Debates and discussions. Although it is clear that discussions aimed at finding the truth are useful, there were negative developments in the purpose and number of discussions in the field of fiqh during this period. According to al-Ghazālī, the aim of the debates of this period was to gain influence, to show off his knowledge, to propagandise his sect, and to look good to the rulers (Iḥyāʾ, II, 49). The debates became extremely prolific and widespread. There was no major centre, especially in Iraq and Khorasan, where there was no debate between two great scholars (for examples, see al-Subkī, V, 12-50, 209-218; Ibn al-Asīr, X, 125 ff.). These debates condemned the parties to adopt and defend the sectarian views in any case, and as a result, the exchange of information between groups and schools became virtually impossible.

Sectarian fanaticism. In the previous period, there were sects and their followers in the sense of a mujtahid’s method of ijtihad and the collection of rulings issued according to this method. Fiqh scholars used to meet with each other and mutually benefit from each other, and the public used to benefit from more than one mujtahid when necessary. The sectarian fanaticism that started from the III. (IX.) century onwards became stronger and stronger and turned into enmity. There were various manifestations of fanaticism. a) Strife, sedition and destruction. Divisive ideas such as those with different sects could not pray behind each other and their marriages would not be valid spread, and groups belonging to fiqh sects fought each other in the cities of Baghdad, Rey, Isfahan and Merv, and many people and wealth were destroyed. Ibn Jarīr al-Tabarī was stoned by the Hanbalites for not including Ahmad b. Hanbal’s views in his book Iḫtilāf al-fuḳahāʾ, and when he died, he could only be buried at night. b) Persistence in error. Since taqlid is to follow and adhere to something without evidence, even if the evidence of the other party was strong and his ijtihad was accurate, the error was insisted on, and the mentality of “My imam knows best” was adopted. c) Wearing down the opponents. Those who opposed the Imams and the jurists of the sect on the basis of evidence were attacked, and everything was done to ostracise them in their surroundings. d) Before the IV. (X.) century, ijtihad, which was known as the most honourable work and a worship at the level of obligatory kifāya, was opposed, scholars who declared their qualifications were persecuted, and the newly trained ones were discouraged. For this reason, “absolute independent ijtihad” became rare from the IVth (X.) century onwards, ijtihad in the sect and in the matter continued for a few more centuries, but gradually it decreased and was replaced by strict imitation (Karaman, Ijtihad in Islamic Law, p. 180 et seq.; a.mlf., “Mezheb Kavgalar in Islamic History”, Islamın Işında Günün Meseleleri, II, 715-721).

In this period, which started after the mujtahid students of the imams of the sects, it is necessary to divide the editing movement into several groups in terms of the method and purpose followed. 1. Books written to establish the methodology and basis of the rulings of the sect. When the ijtihad movement stagnated, a new method called “tahrīj” was invented in order to meet the needs of the marching life and to fill the gaps that occurred after the imams; those who did this (ashāb al-tahrīj, muharricūn) first examined the imam’s ijtihad and determined the method and reason on which each ruling was based, and then produced precedent rulings based on this (Shah Waliyyullah al-Dihlawī, al-Inṣāf, p. 29 ff.). The treatises of Abū al-Ḥasan al-Karhī and Debūsī, as well as the books of al-Jassas, Abū al-ʿUsr al-Pazdawī, and Shams al-ʿUmma al-Sarahsī on usul and fürū were written for this purpose. Since Imam Shafi’i wrote his usul himself, it can be said that a method developed in the Shafi’i madhhab, not from usul to usul, but vice versa. In the same period of fiqh, books were also written according to this method, which is called the “Shāfi’ī or theologians’ profession”. Abū al-Husayn al-Basrī’s al-Muʿtemad, Imām al-Haramayn al-Juwaynī’s al-Burhān, and al-Ghazālī’s al-Mustaṣfā are outstanding examples of this genre. 2. Works for the purpose of preference. When the ijtihad of the imams of the sect were compiled and written down by their students, inconsistent ijtihad and opinions that were in need of explanation were also included, and in the works written later on, the studies carried out to distinguish the valid ones belonging to the imam from the unreliable ones were called “preference”, and this was divided into two types: narration and direct narration. In terms of narration, the preference is made according to the reliability of the narrator (student faqih) who narrates the imam’s words. For example, the Hanafis preferred the books of Imam Muhammad which were narrated in a reliable manner. Books based on the narrations of Hanafis such as Abū Hafs al-Kabīr and Abū Sulayman al-Jūzjānī are of this kind and they are called “zāhir al-rivāya”. Those with weaker narrations are called “nādir al-rivāya” or “nawādir”. The Shafi’is preferred the narration of Rabi’ b. Sulayman al-Murādī to the narrations of al-Musanī and other student narrators. The Mālikīs, on the other hand, found Ibn al-Qāsim’s narration more reliable. The practice of preferring one of the two opposing opinions, which are equally authentic in terms of narration, or one of them belongs to the imam and the other belongs to his disciple, who is also considered the imam of the madhhab, based on the Book and Sunnah and the methodology, is “preference through dirayat” and started in this period. There are examples of such studies that are still used today. Hakim al-Shahīd summarised Imam Muhammad’s six authentic books in his book al-Kāfī, and al-Sarahsī commented and supplemented them in his book al-Mabsūṭ. Ibn Abū Zayd al-Qayrawānī and Abū Saīd al-Barāziī summarised the principles of Imam Mālik’s madhhab in al-Muḍawwānat al-qubrā, using the method described above. Among the Shāfiʿīs, Abū Ishaq al-Shīrāzī’s al-Muḥaẕẕẕeb and al-Ghazālī’s al-Basīṭ, al-Wasīṭ, and al-Wajīz are examples of the same genre. 3. Books for the defence of the sect. The jurists who wanted to reach a conclusion by collecting the different rulings of the sects in a book and comparing them, created a new branch of jurisprudence known as “hilāf”. These are also divided into two groups. The aim of the first group is to defend their own sect and refute the evidence of other sects; the books mentioned above can be considered as examples of this type; Debūsī’s work on this subject is recorded as the first book of hilāf (Izmirli Ismail Hakki, p. 4 et al.). The aim of the second group is to analyse the provisions on which the jurists disagree and to try to determine the correct one by referring to the generally binding and reliable evidences of Islam. Ibn Jarīr al-Tabarī’s Iḫtilāf al-fuḳahāʾ is such a work. Ibn Rushd’s Bidāyah al-mujtahid, Muwaffaquddin Ibn Qudāma’s al-Muġnī, and Ibn Ḥazm’s al-Muḥallāʾ can be mentioned as examples of these works of preference.

During this period of fiqh, there were also important developments in the organisation of justice and legalisation. In the first period of the Abbasid period (846-946), the movement of ijtihad gradually stagnated, sects emerged, and judges issued their judgements according to one of these sects, for example, according to the Hanafi sect in Iraq, the Mālikī sect in Syria and Maghrib, and the Shāfi’ī sect in Egypt. When a person from a sect other than the one to which the woman belonged applied to the court, the qadi appointed a nāib from the plaintiff’s sect for that case. The duties and powers of the qadi expanded, and the qadi, who had previously dealt with civil and criminal cases, now also dealt with foundations, guardianship, security, municipal affairs, darbhâne, and treasury affairs. Concepts and institutions such as “shurūt” and “sicillāt” were introduced to jurisprudence as both the trials were transcribed and written documents became more important. In the second period of the Abbasids (946-1258), especially when the Shiite Büveyhids dominated Baghdad, the office of the qadi could be accessed by paying a significant amount of money, and as a result, court fees were collected from the parties in cases. In the Seljuk period, the judicial system was generally conducted according to the Hanafi and partly Shafi’i madhhabs, as in the first period of the Abbasids. In addition to the Sharī’ah courts, the establishment of customary courts that dealt with offences that disturbed public order or had a political aspect was also in this period. In addition, the institution of kazaskerate, which dealt with the Sharī’ah cases of the members of the army, was also put into operation (Hasan İbrâhim Hasan – Ali İbrâhim Hasan, pp. 273-290, 294; IA, X, 400; Uzunçarşılı, pp. 21, 132).

The claim that the Seljuks applied for the first time in the Islamic world the concept of a state that separated religious and worldly affairs, which existed in the Uighurs and Khazars, and that they abandoned the theoretical and narrow moulds of religious law in order to protect the public interest (Köprülü, TTK Belleten, II/5-6, pp. 41 et al.; Kafesoğlu, TD, XV/20, pp. 178, 182-183; IA, VI, 185-186; X, 390) is based on a lack of information and a hasty generalisation. Although the non-involvement of the caliphs in world affairs, taxes and punishments contrary to the Shari’ah, the application of some Turkish customs and traditions, and some land dispositions such as military ichta were put forward as evidence for this claim, the non-involvement of the caliphs in world affairs stemmed from their impotence, and the law applied by the sultans, who were ostensibly subordinate to the caliph, was Islamic law. In order to protect the public interest, the suspension of the nafs and the abandonment of the provisions of jurisprudence, which seem to contradict it, have been realised within the framework of the principles of maslahat and necessity, which are also included in jurisprudence, since the time of Hazrat ‘Umar. The application of customs and traditions that do not contradict the definitive provisions of Islam has been valid since the Prophet Muhammad. The method of imposition started in the era of Hz. Umar, again based on the principle of public benefit; Nizâmülmülk’s practice was a military imposition, which was a variant of this. The imposition of certain punishments for offences other than the crimes and punishments determined by the Shari’ah falls within the field of ta’zîr, and this practice is based on the authority granted by Islam to the ulu’l-amr (Karaman, History of Islamic Law, p. 261 et seq.). As long as any practice of an individual, society or state is not based on abandoning Islam in the form of intention and declaration, and as long as it derives its legitimacy from religion, even with forced interpretations, it is not correct to talk about being secular and non-religious, or abandoning the Sharia.

The period from the Mongol invasion until the Mecelle was the age of the decline of jurisprudence. The role of the administration and the state in the development of the science of law and its institutions is important. The Mongols, who ended the Abbasid and Seljuk sovereignty, ruled the state according to the Genghis law until the Ilkhanid ruler Gāzān Khan (1295-1304) and left the people free in their personal and religious affairs. The people and jurists clung to certain sects, used them as a means of legitimate defence, and closed the doors to ijtihad and inter-sectarian communication. The ties and relations established between the jurists through travelling in the previous periods weakened in this period, and the jurists of each sect withdrew into their own shells. The reading of the books of the mujtahids and their students, which trained jurists, was abandoned, and instead, books that conveyed ready-made judgements and information without evidence, analysis and discussion were read. In order to be able to teach all subjects of fiqh in madrasas in a certain period of time, the writing of ihtisar and texts gradually took the form of an art, and it became necessary to write commentaries and hoshiyas on texts that had become riddles. When the light of jurisprudence was extinguished, the needs of the marching life were met with interpretations and tricks (hiyel and mehāric) that were far from the purpose, and this negatively affected the ability of fiqh to encompass Muslim life. During the reign of the Abbasids of Egypt and the Mamluks, there was a revival of the ijtihad movement in Egypt, Syria and Yemen, but it could not become widespread because it was subjected to oppression and attack instead of being encouraged. From the middle of the VIth (XIIth) century onwards, an ijtihad movement was initiated by the state in North Africa and especially in Morocco, but it was not successful. The reason for this movement, which was conceived by the Muwahhid ruler ‘Abd al-Mu’min al-Qūmī and carried out by his son and especially his grandson Abū Yūsuf al-Mansūr, was that the rulers, who belonged to the Zāhiriyya sect, saw that the people had been cut off from the main sources by being condemned to the Mālikī fiqh books. In order to bring the jurists back to the main sources, Mālikī jurisprudence books were banned from being taught, those that had been seized were burnt, and ten hadīth books (five of the Kütub al-Sitte except Ibn Māja’s al-Sunan, al-Muvaṭṭaʾ, The hadiths contained in al-Sunan of al-Bayhaqī and al-Dāraqutnī, al-Musnad of Bezzār and Ibn Abū Shaybah were compiled and printed according to their subjects, teaching and practice were ordered to be done from these sources, and rewards were given to those who were successful. However, the presence of a Zāhiriyya tendency behind this movement, the oppression and the desire of the new rulers to destroy and change everything belonging to the old ones after the change of administration made the movement unsuccessful (Ḥajwī, II, 170-173). In this period, except for the Mongol rule before Gāzān Khan, Sharīʿah was applied in the dominated regions of the Islamic country. In general, in the field of public law, customs, traditions and laws were used without going beyond the framework of Islamic principles and provisions, and in the field of private law, fiqh and fatwa books were used as laws where necessary. Although there are laws inherited from the Aqqoyunluids, Mamluks and Anatolian Principalities (IA, VI, 194), the oldest compiled typical laws belong to the Ottomans (Akgündüz, bk. bibl.). As in the Seljuk period, these kanunnâmes were prepared and put into effect on the basis of maslahat, necessity and the authority granted to the ulu’l-amr. As J. Schacht points out, kanunnâmas are “formal laws that try to fill the deficiencies of religious law, provided that they do not contradict its provisions and do not prejudice its validity” (IA, VII, 148). The qadi ruled on matters such as punishments of imprisonment and land law according to these laws, and on other areas of public and private law according to fiqh and fatwa books. The sect that the qāḍīs would follow in their judgements, the fiqh and fatwa books that they could use, and the method of preference in conflicting judgements in these books were explained in the relevant works (“edeb al-kādī”, “ukūd resmi al-muftī”, “edeb al-muftī wa al-kādī”), and sometimes edicts were issued on this subject (Ebüssuûd Efendi, pp. 49-53).

The period from the Mecelle to the present day is an era of awakening, revival and codification of fiqh. In the programme of the awakening and development movement initiated by Jamāl al-Dīn al Efgānī and his followers, jurisprudence has an important place. According to the programme, the solutions and legislation needed for the establishment of a new Islamic world would be developed by making choices from the jurisprudence of various fiqh sects on the one hand, and by making ijtihad where necessary on the other (Subhī al-Mahmesānī, p. 246 ff.). The movement of ijtihad and preference in fiqh did not affect the drafting of the Mecelle in the Ottoman Empire, which was compiled from the provisions of the Hanafi madhhab that were the basis for fatwa. However, the movement influenced some of the professors of dârülfünunun and the writers of magazines such as Sırât-ı Müstakîm and Sebîlürreşâd, who defended ijtihad in various books and articles (Karaman, History of Islamic Law, p. 315). In Egypt, the journal al-Manâr published by Rashid Reza, one of Muhammad ‘Abduh’s students, on the one hand fervently defended ijtihad and strongly opposed taqlid, and on the other hand published fatwas, interpretations and solutions based on ijtihad and preference. It is possible to see the traces of the same movement in various scientific institutions, ulema and legislation of the Islamic world of that day, from India to Morocco, from Kazan to Yemen.

During this period, important developments were recorded in fiqh research and practice. 1. The movement of codification (taqnīn, codification) began. The laws seen in the previous periods were in the nature of filling the gaps in the legal fields that were not included in the fiqh books according to the Sharī’ah principles rather than the codification of fiqh. The movement that started in this period was aimed at the codification of fiqh and the replacement of the fiqh and fatwa books used in courts with sharī’ah laws prepared in accordance with the rules of procedure. Mecelle-i Ahkâm-ı Adliyye, which gave its name to the period, constituted the first important step of the legalisation movement, followed by a rapid legalisation activity in the whole Islamic world. There were external and internal factors that led to the introduction of the Mecelle. The external factors were the pressure exerted by the states with which we had political and economic relations, such as England, Austria, France and Russia, for the establishment of new courts by using the minorities as an excuse, the efforts of the French ambassador in particular, and the strengthening of the idea of translating and adopting the French Civil Code with the support of some state officials from within. The Nizāmiye courts’ need for sharī’ah judgements and therefore the laws containing them in some cases, the difficulty of the judges working in the sharī’iyya courts in deducing judgements from the fiqh and fatwa books, the obsolescence of some of the ijtihad contained in these books and the need to change them according to the rule that with the change of time, ahkām will also change are internal factors. Like these factors in the Ottomans, there are also compelling reasons for the movement of legalisation in the Islamic world. a) National and international law and relations have developed, new institutions, concepts and relations have emerged such as legal companies, commissions, insurance, multilateral agreements; fiqh books do not contain these. b) There has been a need for contractual conditions which some mujtahids, especially the Hanafis, do not consider permissible. c) For financial, legal and political reasons, governments have felt the need to regulate and consolidate the dispositions of land and immovable property; land registry and cadastral laws have emerged from this need. d) New procedures and rules were required in matters such as litigation, judgement and execution; the laws of procedure, execution, bankruptcy and notary public were the result of this need. e) The jurisprudence formed in the social, political and social conditions of the old times could not meet the needs of the new times, and rules and rulings that transcended a single sect and that would be produced by new jurisprudence when necessary were needed. These new laws, examples of which will be discussed in the section on the application of fiqh in the last period, are divided into two groups in terms of their sources. In the first group, there are laws imported from foreign countries; the ones related to the procedure of judgement are quite compatible with Islamic law, while the laws pertaining to other fields of public and private law show great differences and contrasts in essence and detail. These laws are like mirrors of the Western understanding of human, family, society, economics and politics. The laws in the second group, which are indigenous and based on Islamic roots, fiqh and jurisprudence, resemble Western laws in form, but their content is based on Islamic law, national customs and traditions. In the codification movement, the drafters of Islamic laws followed two different methods. The first method was to take the jurisprudence of a certain sect as a principle in codification, even though some issues were also subject to the jurisprudence of other sects. Mecelle and Mürşidü’l-ḥayrân (641 articles and published by the Egyptian government in 1890) prepared by Kadri Pasha in Egypt to be used like Mecelle are relatively old examples of this method. The commission established at the Majma al-bukhūsi al-Islamiyya of the Jāmiat al-Azhar followed this method in moulding the jurisprudence of the four madhhabs into laws, each in a separate collection of laws. Likewise, the government of the Islamic Republic of Pakistan followed this method by taking the Hanafi madhhab as a basis when enacting laws on punishment, zakat, tithe, qisas and diet. In Tunisia in 1905, a delegation of scholars from the University of Zeytûne and a number of judges from the Sharia Court prepared a law of obligations according to the Mâlikî madhhab and this law was put into effect as of 1906. The second method is to prepare draft laws by accepting all sects of Islamic law as a whole and selecting the provisions and ijtihad of each sect suitable for the purpose. Since the awakening movement that started in the Islamic world after the Mecelle also affected Turkey, the family law (Hukūk-ı Āile Kararnāmesi) prepared in 1917 contained the jurisprudence of more than one sect, and this method was also followed in the laws made in Egypt, South Yemen and Sudan (Subhī al-Mahmesānī, pp. 182-185). However, since most of these laws were prepared in haste, were not based on the necessary scientific research, had deficiencies in terms of legal technique and did not contain the whole Islamic law in an encompassing perspective, they had to be reconsidered after a while after they were put into effect, and important amendments and additions were needed. 2. Books that were once regarded as forbidden by custom, but which were essential to be seen and read in order to learn Islamic law and to acquire the capacity of ijtihad, were researched and published. The works of scholars such as Shah Waliyyullah, Shawkani, Ibn Taymiyya, Ibn Qayyim, Ibn Hazm, Shātibī and the works of the imams of the sects and their mujtahid students are the main ones of these books. 3. Books collecting the rulings of various sects with or without evidence in a certain systematic way, and encyclopaedias explaining the main fiqh terms and rulings in alphabetical order have been written. 4. In universities, academies and research institutes, many subjects of the history of fiqh, usul and furu have been studied. 5. In order to introduce Islamic law to members of Western law, which is as widespread in the Islamic world as it is in the West, books on Islamic law were written in Western systematics, and comparisons were made between sects and with foreign laws. 6. At first, Western researchers turned towards Islamic studies as a part and tool of colonial policy, translated important sources on Islamic law, then published articles and books partly out of altruistic and scholarly considerations, and included Islamic law teaching and research in some universities (Houghwout, I, 8 et al.; Camp, I, 11 et al.; Saba, p. 16 et al.). 7. Scientific congresses and conferences were organised in the East and the West, which included Islamic law in their programmes, and the papers and discussions were published in books.

Application. As for the current status and practice of fiqh in Islamic countries, it is a historical fact that fiqh, also called sharia, i.e. the political, economic and legal provisions of Islam, has been applied in the lives of Muslim individuals and societies throughout Islamic history. In the fields of public law such as main organisation, taxation, punishment, administration, etc., Islam had few binding provisions and instructions in all times and places, and the necessary arrangements in these fields were left to the rulers to be made through shūra. The fact that legal regulations and practices in these fields were mostly based on the sultan’s will and laws misled some legal historians and led them to believe that there was a secular practice in public law. However, in areas left to the jurisprudence of the ulu’l-amr and the shūra, the solutions and judgements produced by these authorities based on their proper jurisprudence, the practices of the Prophet, the Hulefā-yi Rashidīn and later rulers, and the purpose and general provisions of Islam are just as Islamic and religious as the judgements that are deduced and applied based on the evidence. It is necessary to evaluate the failures before the Tanzimat, that is, the points where practices and regulations contradict the binding provisions of Islam, as minor omissions and deviations based on political and personal reasons instead of a conscious and planned tendency towards secularism. The most important deviation in history was the transformation of the caliphate into a sultanate, and it was never possible to correct this deviation. The Ottoman compromises that began with the Tanzimat Edict can be explained by external pressures and the principle of necessity. In this period, with the exception of some state officials such as Midhat Pasha, Âlî Pasha and some Ottoman intellectuals, the Ottoman administration and the people did not have the idea of abandoning Islamic law and replacing it partially or completely with the law of non-Muslim nations. From the beginning until the Republican period, the law in the Ottomans was generally Islamic; the foreign citations in edicts, kānûn-ı esâsî, judicial procedure, penalties and some private law codes were based either on necessity or on the idea of conformity with Islam. The Kānûn-ı Esāsî, which was promulgated with the First Constitutional Monarchy in 1876, was inspired by the French and Belgian basic organisation laws. However, this law, which consists of twelve chapters and 119 articles, confirms the religious structure of the state in Articles 7, 11, 27, 64 and 87 and grants the sultan wide powers. The penal codes enacted until the reign of Sultan Abdülmecid were domestic and Islamic; they were enacted to regulate crimes and punishments other than hadd and qisas. The first two of the three penal codes enacted during the reign of Abdulmecid (1840, 1851) were of the same nature. The third law dated 1858 was translated from the French penal code and partially amended. The 1861 dated Usûl-i Muhâkeme-i Ticâret and 1880 dated Usûl-i Muhâkeme-i Hukūkıyye laws were taken from French procedural codes. The 1879 Law on Usûl-i Muhâkeme-i Cezâiyye is also an amended translation of the French Code of Procedure. The Commercial Code of 1850 is a translation of the French Commercial Code. The 1864 dated Kānunnāme-i Ticâret-i Bahriyye was based on the French law and utilised the relevant laws of other maritime nations. The 132-article Land Law of 1858, enacted after the abolition of the Timar system, is a local and Islamic law. During the Republican period, Turkey adopted the principle of secularism and completely severed the relationship between legal life and religion. Most of the other Islamic countries whose people are Muslims express their commitment to Islam in their constitutions and laws. The state’s adherence to Islamic principles is expressed in the constitutions of Morocco, Tunisia, Mauritania, Yemen, Iran, Sudan, Afghanistan and Pakistan. The civil codes of Egypt (1948), Syria (1949) and Iraq (1951) instruct judges to fill in the gaps according to Islamic principles. The Indonesian constitution introduces a procedure to ensure that institutions and laws comply with Islam.

In terms of positive law, Islamic countries should be divided into three groups. In the first group, there are the former socialist countries whose majority of the population is Muslim. Albania, Kazakhstan, Turkmenistan, Uzbekistan, Tajikistan, Kyrgyzstan, Azerbaijan, Kazakhstan, Turkmenistan, Uzbekistan, Tajikistan, Kyrgyzstan and Azerbaijan, before the collapse of the Soviet Union, were governed by the secular and atheistic law of that union. Those of these states that have declared their independence are endeavouring to adapt the old system and, by the way, the law to their national structure. In the second group, there are countries that are less affected by modernism and maintain a relatively closed regime. Saudi Arabia, Yemen, Uman and Muscat, United Arab Emirates, Qatar, Afghanistan, Pakistan, Sudan and Iran are typical examples of this group. Theoretically, these countries apply Islamic law; in practice, they include provisions based on customs and traditions to a large extent with the idea that they are in accordance with Islam. In the Islamic countries in the third group, Islamic law is applied in certain areas of law (mainly personal law, family law, inheritance, foundations); in other areas, laws of Western origin have been put into force. The Western laws applied in these countries are different from each other due to the old colonial relations. The common law in India, Malaysia, Bengal and Northern Nigeria, French law in the French-speaking countries in the north of Africa, and Dutch law in Indonesia are the sources of importation. In Egypt, Iraq, Syria and the Sudan before 1970, the foreign laws quoted varied according to political and ideological relations and were mostly under the influence of French, sometimes English and Soviet laws. In Egypt, for the last twenty years, there has been an intense democratic struggle between the modernists (i.e. the Ikhwān al-Muslimīn movement) and those who want to Islamise all law. Among this group, Sudan is unique in terms of Islamisation of law. Until the declaration of independence in 1956, the law of the last colonial state, Britain, was applied in this country. Since this law was based on court judgements rather than written laws, there were very few duly made laws. After much debate on the Islamic character of the constitution, Islamic law and custom were accepted as the two main sources of legislation, and it was stated that the personal behaviour of non-Muslims would be regulated by special laws. In another article, the principle of the judge filling the gaps by resorting to Islamic jurisprudence, court judgements, custom, equity and conscience was adopted. The 1974 laws on contracts, bey’ and proxy laws were again largely influenced by English law. With the insistent demands of the Islamists and the military movement of 1989, the last of the successive revolutions, the government was handed over to those who wanted to Islamise the country completely; Islamists undertook important Islamisation activities in the fields of economy, education, communication and law. In the meantime, the Penal Code of 1991 was drafted in accordance with the drafts prepared in the Arab League, the United Arab Emirates, Pakistan and Egypt, taking into account the needs and requirements of the age, including articles on terrorism and violation of the environment and individual liberty, reducing the penalties of imprisonment and flogging, including all the elements that reduce the hadd penalties, minimising the authority of the judge in sentencing, and excluding the people of the South from the sharia hadd penalties because of their different beliefs. After this law, the drafting of the laws of ahvāl al-personaliyya and the law of obligations of the same nature and quality was undertaken (T. Zayn al- Zaynalābidīn, pp. 3-16; on the application of fiqh in Islamic countries in general, see Anderson, bibl. Anderson, bibl.; Subhî al-Mahmesânî, bibl.; David, pp. 427 ff.; Botivean, bibl.; Karaman, History of Islamic Law, pp. 317-327 ff.).

The local and foreign writers on the future of fiqh should be divided into two groups: pessimists and optimists. According to the first group, whose number is gradually decreasing, fiqh has outlived its time; its value is only related to the history of culture; Islamic countries will gradually modernise, integrate with the world and abandon the law based on religion; it is not possible to reverse the flow of water. Although the early orientalists and some legal historians in Turkey after the Republican period predicted such a future for fiqh, developments show that this prediction will not be fulfilled. According to those in the second group, nothing can be said for the time being about whether fiqh will preserve its vitality as a source in law-making and practice; this depends to some extent on the opening of the door of ijtihad and the finding of reasonable solutions to new social, legal and economic needs; however, fiqh will always retain its importance in comparative legal studies and in the writing of national legal history (Köprülü, History of Islamic and Turkish Law, pp. 276-277). Even the developments in some Islamic countries (such as Iran, Pakistan, Sudan) in the last quarter of the 20th century confirm the idea that Islamic law will maintain its place among the great legal systems of the world and that it is an alternative legal system to Western law, no matter how important the developments in Islamic countries on the path of Westernisation are. Islamic scholars constantly remind us of the strength of the Islamic tradition. According to L. Milliot, the last stage to be reached in the acquisition of Western institutions would be the Islamisation of these institutions (David, p. 441). It is quickly forgotten that for a long time in Western countries, even when the law was not sacred, the belief that it was something inviolable prevailed. Nevertheless, when the needs arose, the necessary solutions could be found without harming the dogmatics of law. The interventions of the pretors in Rome and the chancellor in England are striking examples of this development. The situation is no different in Islamic law. Although Islamic law is basically based on a written text that cannot be changed, this law has been able to respond to the solutions that would enable the modernisation of the society without harming itself by leaving as much free space as possible to customs and traditions, the consent of the parties and even the will (ibid., pp. 427-428). There are developments indicating that the optimistic group’s predictions will prove to be correct. Some of the Islamic countries attempted to modify the laws they had received from non-Muslim societies and to make them appropriate to the conditions of their own societies, responsive to their needs and compatible with the prevailing value judgements. The commissions appointed for this purpose, while making the required amendments, made use of the culture of fiqh, which has a long history of fourteen centuries and a rich accumulation of knowledge due to its application in different periods and regions, the principles and theories of fiqh, and put some of the provisions in this rich content into the mould of law; this is the “codification of fiqh”. However, in terms of its basic principles and philosophy, the concepts and conceptions on which it is based, even the provisions it regulates, the solutions it offers, and some of the terms it uses, these laws, as a whole, are still human laws. Thereupon, a new call began: “Islamisation of Law”. This concept includes the full implementation of Islamic law by getting rid of the defects seen in the previous codifications, putting the jurisprudence of ijtihad into the mould of law, and making extensive efforts to prepare the society for this implementation. The above-mentioned practices constitute a part of these efforts; there are also scholarly and academic studies for this purpose. 1. Faculties and institutes have been established to conduct comparative research to establish the superiority and applicability of Islamic law. The universities established in Uganda and Nigeria, the International Islamic Universities established in Islamabad and Malaysia, the University of Dawah and Jihad established by the Afghan mujahideen in Peshawar, Pakistan are the most recent institutions established for this purpose. 2. In order to realise Islamic economics, there is a need both to formulate its theory and to train people. In order to fulfil this need, Islamic economics departments have been established at the universities of Umm al-Qura in Mecca and Muhammad b. Saud in Riyadh, and a Faculty of Islamic Economics has been established within the university in Islamabad. These faculties provide undergraduate and postgraduate education and their graduates are involved in the programme of Islamisation of law and economics in Pakistan. 3. Research centres and academies have been established to discuss new issues related to Islamic law and economics, to produce solutions and rulings, to prepare draft laws to be made available to countries in need, and to design new Islamic institutions. The jurisprudence academies in Mecca and Jeddah, the Academy of Islamic Studies affiliated to Al-Azhar, the Islamic Academy affiliated to the university in Islamabad, the Zakat Research Centre in Kuwait are famous examples of these institutions. 4. Research on Islamic law, master’s and doctoral theses, and scientific meetings are carried out in the relevant scientific and academic institutions in almost all Islamic countries, as well as in some institutions in the West, and these are published in books. 5. The Islamic banking experiment, which started in Egypt in the 1960s, reached its goal with the establishment of the Islamic Development Bank in Jeddah in 1975, after which Islamic banks were established both in Islamic countries and in some Western countries, and examples were presented showing that it was possible to finance the economy and trade with an incentive tool other than interest (partnership in profit and loss) (Hasan Hâmid, XXII, 1048-1049; Karaman, History of Islamic Law, p. 360 et al.).

Fiqh, which is the law of a system that declared to the world fifteen centuries ago that human beings are free, equal and entitled to certain rights and obligations by creation, has values to offer not only to the believers of this system but also to humanity. The realisation of this contribution depends on Muslims living the age of ijtihad again. Author: HAYREDDİN KARAMAN

BIBLIOGRAPHY

Ṭahānawī, Kashshāf, I, 31.

Wensinck, al-Muʿjam, “fḳh” md.

M. F. ʿAbd al-Bābāqī, al-Muʿjam, “fḳh”, “sʾel” mds.

Bukhārī, “ʿIlm,” 10, 20.

Muslim, “Imāra,” 175, “Zakat,” 4, 8, 14, 19, 98, 100.

Abū Dāwūd, “Ṣalāt”, 1, “ʿIlm”, 10, “Ferāʾiż”, 1.

Tirmidhi, “ʿIlm,” 7.

Abū Ḥanīfa, al-Fiḳh al-absaṭ (ed. M. Zāhid Kevserī), Cairo 1368, p. 40.

Shafi’i, al-Um, Cairo 1329, VII, 250.

Ibn Saʿd, al-Ṭabaḳāt, I, 346, 348, 350, 357, 368, 375, 378.

Ibn Qutayba, al-Maʿārif (Sāwī), pp. 216, 219-230.

Al-Karhī, Risāla, Istanbul, ts., p. 84.

Maqdisī, Aḥsen al-taḳāsīm, pp. 37, 127, 142.

Ibn al-Nadīm, al-Fihrist, Cairo 1348, pp. 297-319.

Abū Nuaym, Ḥilye, Cairo 1351/1931, II, 167.

Khatīb al-Baghdādī, al-Faḳīh wa’l-mutafaḳḳḳih (ed. Ismāʿil al-Ansārī), Beirut 1400/1980, I, 45.

Shīrāzī, Ṭabaḳāt al-Shāfiʿiyya, Beirut 1970, pp. 35-36, 39-40.

al-Ghazālī, al-Manḫūl, pp. 469-470.

a.mlf., Iḥyāʾ, Cairo 1387/1967, I, 48-49.

Shahristānī, al-Milal, Cairo 1948, I, 365-368.

Ibn al-Asīr, al-Kāmil, X, 31, 125 ff., 209.

Ibn Taymiyya, Ṣıḥḥḥat al-ṣūli meẕhebi aḥl al-Madīna, Cairo, ts. (Matbaat al-Imām), p. 32.

Ibn al-Qayyim al-Jawziyya, Iʿlâm al-muvaḳḳiʿin, I, 26, 40 ff.; II, 245.

Subkī, Ṭabaḳāt (Tanāḥī), III, 393; V, 12-50, 77-90, 209-218.

Ibn Khaldūn, Muḳaddima, III, 1046-1050.

Ibn Ḥajar, al-Iṣāba (Bijāwī), I, 14.

al-Suyūṭī, al-Rad ʿalā men aḫlada ile al-arż, Alexandria 1984, pp. 35-36.

a.mlf., Tārīḫ al-ḫulefāʾ, pp. 196, 261.

Shaʿrānī, al-Mīzān al-qubrā, Cairo 1318, I, 32.

Abüssuûd Efendi, Ma’rûzât (in Ahmet Akgündüz, Ottoman Kanunnâmeleri ve Hukukî Tahlilleri), Istanbul 1992, IV, 35-75.

Shah Waliyyullah al-Dihlawī, Ḥujjatullāhi al-bāliġa, Cairo 1966, I, 317.

a.mlf., al-Inṣāf, Cairo 1372, pp. 7 ff., 29 ff.

Izmirli Ismail Hakki, Ilm-i Hilāf, Istanbul 1330, pp. 4 ff.

M. Zāhid Kevserī, Bulūġ al-amānī, Cairo 1355, p. 67.

a.mlf., Ḥüsnü’t-teḳāḍī fī sīrat al-Imām Abī Yūsuf al-Ḳāḍī, Cairo 1948, p. 33.

Uzunçarşılı, Medhal, pp. 21, 132.

J. R. Houghwout, “Freword”, Law in the Middle East (ed. Majid Khadduri – Herbert J. Liebesny), London 1955, I, 8 ff.

K. G. Camp, “Background and Development of the Project”, ibid, I, 11 et seq.

H. Saba, “Introduction”, Islamic Law in the Modern World (ed. J. N. D. Anderson), New York 1959, pp. 16 ff.

Hasan Ibrāhim Hasan – Ali Ibrāhim Hasan, al-Nuẓum al-Islamiyya, Cairo 1962, pp. 273-290, 294.

Muhammad Hamīdullah, State Administration in Islam (tr. Kemal Kuşcu), Istanbul 1963, p. 55.

ʿAbd al-Karīm Zaydān, al-Madḫal, Bagdad 1969, p. 89.

Hel li’l-ḳānūni al-Rūmī, teʾs̱īrun ʿale al-fiḳh, Beirut 1973.

Yusuf Ziya Kavakcı, The Syrian-Roman Code and Islamic Law: Macmūʿ al-Fıḳh Systematics, Ankara 1975.

Karaman, Islamic Law, I-III.

a.mlf., Ijtihad in Islamic Law, Ankara 1975.

a.mlf., “Mezheb Kavgalar in Islamic History”, Islamın Işında Günün Meseleleri, Istanbul 1988, II, 715-721.

a.mlf., History of Islamic Law, Istanbul 1989.

Hajwī, al-Fikr al-sāmī, I, 14, 26, 278; II, 170-173.

N. Anderson, Law Reform in the Muslim World, London 1976.

J. Schacht, Introduction to Islamic Law (trc. Mehmet Dağ – Abdülkadir Şener), Ankara 1977, pp. 18, 118.

a.mlf., “Court”, IA, VII, 148.

a.mlf., “Fıḳh”, EI2 (Eng.), II, 886-891.

Subhī al-Mahmasānī, al-Awżāʿ al-tašrīʿiyya fi al-ḍuwali al-ʿArabiyya, Beirut 1981, pp. 182-185, 246 ff.

M. Fuad Köprülü, History of Islamic and Turkish Law, Istanbul 1983, pp. 16, 18 ff., 276-277.

a.mlf., “Les Institutions juridiques turques au moyen-âge”, TTK Belleten, II/5-6 (1938), pp. 41-76.

a.mlf., “Fiqh”, IA, IV, 608-622.

Sezgin, GAS (Ar.), I/3, pp. 3-7, 10-26.

Nizām al-Dīn ʿAbd al-Hamīd, Mefhūm al-fiḳhi al-Islamī, Beirut 1404/1984, pp. 11-99.

Jādelhak ʿAlī Jādelhak, “Baḥs̱ ʿani al-fiḳhi al-Islamī,” Dirāsāt fi al-ḥaḍārati al-Islamiyya, Cairo 1985, III, 164-288.

M. Mustafa al-Salabī, al-Medḫal fi al-fiḳhi al-Islâmī, Beirut 1405/1985, pp. 27-220.

Rene David, Contemporary Major Legal Systems (tr. Argun Köteli), Istanbul 1985, pp. 418, 424, 427 et seq.

John Makdisi, “An Inquiry into Islamic Influences During the Formative Period of the Common Law”, Islamic Law and Jurisprudince, Washington 1990, pp. 135-146.

Ahmet Akgündüz, Ottoman Kanunnâmeleri ve Hukukî Tahlilleri, I-VIII, Istanbul 1990-94.

T. Zeynelâbidîn, Teṭavvürü ḥareketi’t-teşrîʿi’l-Islâmî fi’s-Sûdân, Islamâbād 1991, pp. 13-16.

B. Botievean, Loi islamique et droit dans les sociétés arabes, Paris 1993.

Hasan Hāmid, “Taṭbīḳu al-sharīʿati al-Islamiyya fī Baqistān,” Aḫbār al-ʿālamī, XXII/1048-1049, Mecca 1983-84.

S. D. Goitein, “The Birth of Islamic Law” (trc. Bülend Davran), ITED, I/1-4 (1954), pp. 57-62.

S. V. Fitzgerald, “Islamic Law’ün Roman Hukukundan İktibasta Bulğu Bulğu İddiası” (trc. Bilge Umar), IU Hukuk Fakültesi Mecmuası, XXIX/4, Istanbul 1964, pp. 1128-1154.

Ibrahim Kafesoglu, “Prof. Osman Turan, History of the Seljuks and Islamic-Turkish Civilisation”, TD, XV/20 (1965), pp. 178, 182-183.

a.mlf., “Seljuks”, IA, X, 390, 400, 403.

M. ʿAbd al-Hādī Sirāj, “Teʾs̱īr al-fiḳhi al-Islâmī fi al-ḳānūni al-Injilīzī,” Dirāsāt ʿArabiyya wa Islamiyya, III, Cairo 1984, pp. 7-22.

Yaakov Meron, “Points de contact des droits juifs et musulman”, St.I, LX (1984), pp. 83-117.

I. Goldziher, “Fiqh”, IA, IV, 601-608.

Ömer Lütfi Barkan, “Kanûn-nâme”, ibid, VI, 185-196.