THE INFLUENCE OF THE OTTOMAN STATE ON ISLAMIC LAW

The social history of Islamic law is a recording of beliefs, thoughts, actions and interpretations of Muslims against the Islamic Law system. The content of the social history Law is illustrated intact in the social history of Islamic Law concerning the character, place and time. The purpose of this research is to know the social history of Islamic Law starting from the condition of Pre-Islamic Arabia, the period of Mecca and Medina, Khulafa Rashidun, Umayyads, Abbasid dynasties, sand social history of Islamic Law. The method used is an analytical, descriptive method based on the historical literature review of Islamic Law that colored the life of the nation and the state. Pre-Islamic Arabs hold fast to tradition. And the Mecca period, the number of Muslims, is still small and weak, not yet united as a people and not yet have government. The principles of law in the constitution of Medina, the ideas in the constitution can serve as the basis or model of the development of the modern government. The laws that came out of the Messenger of Allah became tasyrik 'for Muslims and is a law that must be followed, whether it comes from God's revelation and from ijtihad (diligence) of Muhammad own. The condition of Islamic law in The Khulafa Rosyidun time, there are several things that can be concluded: (1). The caliphs still cling to the Qur'an and al-Sunnah in overcoming various legal problems, (2). The territory of Islam is widespread and the problematic life of the people is increasingly complex and complicated, then Umar bin Khatab, both as a person and as caliph much encouraged scholars to actively perform ijtihad. The Islamic law of the Umayyad period did not go far beyond what the earlier scholars did (in Sahabah era). There are several factors that encourage the rapid development of Islamic Law, namely: (1). Personal factors mujtahid 1) , (2). Social Environment factors, and (3). Political factors and the will of the authorities. At the time of the Abbasid, socio-cultural factors influenced the development and fostering of Islamic Law. In the field of tafsir (commentary), from the beginning was known two methods, the first is the tafsir bil ma'tsur, the traditional interpretation by taking the interpretation of the Prophet and the Sahabah 2). Secondly, the tafsir bi al-ra'yi, a rational method that relies heavily on opinions and thoughts rather than taking traditions and opinions of Sahabah. The framework of the fiqh is determined by the time factor, place, customs and local socio-cultural conditions. The journey of fiqh cannot stop until the fiqh Maliki, Hanafi, Shafii, and Hanbali, fiqh must continue to develop throughout the ages and places, especially in the face of pluralism and globalization, fiqh must appear to provide alternative solutions to humanitarian solutions.

State Law and Legal Positivism: The Global Rise of a New Paradigm, 2022

Comparative Studies in Society and History 55 (3), 2013

This article proposes a comparative analytical framework to study changes in Islamic law during the post-Mongol period, particularly the rise of the official school of law (or state madhhab). Taking as my case study the Ottoman adoption of a particular branch within the Sunni Hanafi school of law, I suggest that this adoption marks a new chapter in Islamic legal history. In earlier periods, while rulers appointed judges and thus regulated the adjudication procedures, they did not intervene, at least theoretically, in the structure and doctrine of the schools of law, which remained the relatively autonomous realm of the jurists. The Ottoman adoption of the school, by contrast, was not merely an act of state patronage, since the dynasty played an important role in regulating the school's structure and doctrine. To this end, it employed a set of administrative and institutional practices, such as the development of an imperial learned hierarchy with standardized career and training tracks and the appointment of jurisconsults (muftis). Some of these practices were found in other polities across the eastern Islamic lands in the post-Mongol period, but these similarities have not been treated comparatively in modern historiography. They suggest that the Ottoman case was part of a broader legal culture that spanned several polities across the region. This article outlines a framework that will enable historians of Islamic law to treat these similarities in a more coherent manner. The framework raises key issues in the historiography of Islamic law and its nineteenth-century modernization.

Al-Istinbath: Jurnal Hukum Islam, 2023

This article aims to describe the impact of legal dualism within the Ottoman Empire. After Constantinople was taken over, Sultan Muhammad Al-Fatih instituted a significant policy, including issuing laws and regulations for the benefit of society; then, there was also a dualism system within the Ottoman Empire, which was visible during the reign of Sultan Sulaiman I. During this time, foreign nationals were mainly recruited, and foreign traders began to gain impunity at the peak of power. This then prompted several questions, such as were the sultans free to create the laws they wanted, or was Islamic law still binding on them? Was Sultan's law an innovation from the Ottoman Empire or a legacy from the preceding dynasty in the form of Capitulation? To address those issues, the authors conducted a comparative historical analysis of various types of literature. We used a descriptive qualitative approach to Qānūn's position, which served as a springboard for foreign intervention in an Empire that was strong but weak in political policies which occasionally strayed outside the corridor of Islamic Sharia which had become customary and national culture. The tolerance separated from the corridors of Islam derailed during the crisis. This became a springboard for legal dualism in a state body with integrity in various dimensions.

Islamic Law and Society, 2009

This essay addresses the Shari'ah courts and Shari'ah records within the broader framework of the application of Islamic law in the Ottoman state. We first explore historical developments before and after Tanzimat as well as a number of developments in the legal guidelines for the preservation of the Shari'ah records. A concise summary is given of the Shari'ah courts, qadis, and the judiciary, including the shaikhu islam and qadaskar. Section two reviews the Shari'ah records, with special attention to the sijil, mahdar, sakk, and hujjah deeds. This section also examines judicial decrees, including their definition, arrangement, qualities, types and models. Linked to this is a discussion of a number of interesting documents in the Shari'ah courts and the…

The Ottomans absorbed into their empire teritorles as well as practices of the existing states that were well established outside the Arab world, such as Seljoukides of Anatolia and Ilkhanides of Persia. Thus it was that the empire was influenced by the culture and civilization of central Asia and Persia. And, by also encompassing vast Christian territories, it became similarly open to influence from that, very different, heritage. In order to maintain political stability there was no question of erasing the past history of these countries they had conquered. And so the decision was made not only to accept the numerous customs going back to time immemorial, but also to adopt more recent legislation in force before the occupation, created by order, frequently, or Christian sovereigns. Finally, with the further expansion of the empire by annexing other Moslem states, a third component was added: the sharia, or religious law. This last aspect of Ottoman legislation took on such a level of importance that, even if a legal clause relied on customary law for its disposition, in the end it was the sharia that was the ultimate judge of its legitimacy. Thence comes the fascinating question of how the chancellery controlled the multitude of Ottoman incomes and taxes, and how it managed to bring together and succeed in working such a diverse network of laws. They had eventually to resort to a written record wherein would be listed the different elements of Ottoman law, specifically the three components of the rulings from the sultan, ancient custom and religious law.

Marmara Üniversitesi İlahiyat Fakültesi Dergisi, 2006

Özet Cumhuriyet dönemi akademik İslâm hukuku araştırmaları, Osmanlı Devleti'nin yıkılmasıyla inkıtaya uğrayan taklid, telfik ve ijtihad sürecinin bir şekilde devamıdır. Yetmişlerde ortaya çık-maya başlayan akademik araştırmalar seksenlerde gelişme gösterip doksanlarda bir yoğunluk ka-zanmıştır. Fürû fıkıh, Türk pozitif hukukuna paralel olarak kara Avrupası hukuk sistemi forma-tında üretildi. Usûl-i fıkıh tartışmaları ictihad kavramı üzerinden yürütüldü. Bütün bu yaklaşım-larda, genelde İslâmî araştırmalara özelde İslâm hukuku araştırmalarına damgasını vuran sürekli-lik ile değişim arasındaki gerilim olmuştur. Aslında herkes değişimi kaçınılmaz görmektedir. Fakat temel soru, kimliği koruyarak değişimin nasıl başarılabileceğidir. Gelenek, İslâmî kimliğin temel bir unsuru olduğundan, hiçkimse radikal bir kopuştan yana değildir. Tabiatiyle geleneğe yaklaşım tarzı ayrışmada belirleyici rol oynamaktadır. Bir yanda geleneğin sadece ruhuna sadık kalmayı yeterli bulan modernist yaklaşımlar vardır. Tabii bu, gelenekten irtibatı koparmak kadar tehlikeli algılanmıştır. Diğer yanda ise gerçek muhtevası açığa çıkarılıp bütün imkânları yeterince tüketil-meden gelenek hakkında olumsuz karar verildiği iddiası var. Teori ile pratik arasındaki karmaşa ve İslâm dünyasının içinde bulunduğu perişan durum mevcut yaklaşım ve iddia sahiplerini ko-numları hakkında tereddüte sevketmektedir. Abstract Academic Islamic legal studies of Republican period are somehow the resumption of a taqlid-talfiq-ijtihad process that ceased with the decline of Ottoman Empire. Academic studies began to come out in 1970s, improved in 1980s, and got intensed in 1990s. Legal dimension of fiqh was mostly articulated in style of legal system of continental Europe benefiting from Turkish positive law and the modern Arabic legal classics. Debates on usûl al-fiqh have been carried out mostly through the concept of ijtihad. In all these approaches, it's the tension between continuity and change that imprints on Islamic studies in general and Islamic legal studies in particular in Turkey. Indeed, everybody agrees that change is indispensable. But, the main question is how to cope with change keeping one's identity. Since the tradition is deemed a main constituent of Muslim identity, nobody accepts a radical departure from tradition. Therefore, the manner of dealing with the tradition distinguishes the community one from another. On one side, there are mod-ernist voices that find it enough to keep in contact with tradition in the level of spirit. This approach is conceived as dangerous, as to lead to cutting off the relation with the tradition. On the other side, there are voices that question whether we have really exhausted the potentiality of 1

In Islamic faith, law and religion have developed a unique and very elementary association between them.