Hukuk Tekniği Açısından Mecelle’ye Yapılan Eleştiriler ve Değerlendirilmesi / The Evaluation of the Criticisms Made to the Majalla in Terms of Law Techniques
KeywordsMecelle, şer’i hukuk, örfi hukuk, fıkıh, kanun, külli kaide
Mecelle, şer’i hukuk, örfi hukuk, fıkıh, kanun, külli kaide
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AbstractMajalla is the first systematic law made in the history of Islamic law. Majalla has been criticized from many aspects such as Sheria Law and Customary Law. It has also been criticized in terms of its language and its wording, etc. Majalla Delegation remained under internal and external pressures while the regulatory commission was trying to recover identified deficiencies. So, civil law has been passed before the expected arrangements had been made. Majalla has taken place in history because of its uniqueness which collected the normative and the issue method together. Our aim is to adress the Majalla and the cristicisms directed at it in an article
Özet: Mecelle İslam hukuk tarihinde yapılan ilk sistematik kanundur. Mecelle’ye yöneliksadece şer’i ve örfi hukuk açısından değil, dil ve üslup gibi çeşitli yönlerden deeleştiriler yapılmıştır. Mecelle heyeti tespit ettiği eksiklikleri tadil komisyonlarıyla telafiyoluna giderken önceden olduğu gibi dış ve içten gelen yoğun baskılar altında kalmış vebeklenilen düzenlemeler tamamlanmadan medeni kanuna geçilmiştir. Mecelle mücerretve meseleci metodu cem eden nev-i şahsına münhasır bir kanun metni olarak tarihe geçmiştir.Amacımız Mecelle ve ona yöneltilen eleştirileri bir makale çerçevesinde mütalaaetmektir.Anahtar Kelimeler: Mecelle, şer’i hukuk, örfi hukuk, fıkıh, kanun, külli kaide.The Evaluation of the Criticisms Made to the Majalla in Terms of LawTechniquesAbstract: Majalla is the first systematic law made in the history of Islamic law. Majallahas been criticized from many aspects such as Sheria Law and Customary Law. Ithas also been criticized in terms of its language and its wording, etc. Majalla Delegationremained under internal and external pressures while the regulatory commission wastrying to recover identified deficiencies. So, civil law has been passed before the expectedarrangements had been made. Majalla has taken place in history because of its uniquenesswhich collected the normative and the issue method together. Our aim is to adressthe Majalla and the cristicisms directed at it in an article.Keywords: Majalla, Sheria Law, Customary Law, Fiqh, Law, General Rules
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On LawTOKU, Neşet (Yalova ÜniversitesiYalova University, 2017-11-10)How to define the law is undoubtedly a difficult issue. Functional aspect; the law isformal interpretation of political arrangement, or the concluding of relations thatoccur between the individuals, by means of a universal-ethical principle, or thearrange of social order by means of coercive rules. But; In terms of logic, is law, it arational-reconciliation rule for individual and social benefit? Or, is the command ofthe sacred message? Or is it the universal norm is imperative and prohibitive that isdiscovered by mind which indicates what does and does not suitable the rationalhuman nature? Or is it the will of the sovereign power? This issue is highlycontroversial. In this article, different definitions for the law will be argued.
Our Hopes for the Justice and the Justice as ItselfNamlı, Tuncer; ; Anadolu İlahiyat Akademisi (Anadolu İlahiyat Akademisi, 2018-05-30)This study tries to give a general framework aboutjustice. For this aim, it discusses the etimological dimensions of the word ofadalet, justice; and it is attempted to confirm the various senses of this wordby referring some relevant verses in Quran. Following that, the concept isdiscussed in details in the relationship between Ethics and Law. In the secondpart of the article, it is referred to the unity of reason and heart in Quran,mentioning a justice in the Islamic sense. It takes some relevant versescontain particular judgements about justice to reach the objectivizations ofit. It is concluded that justice is one of the most important parts of Islamand the consciousness, adding it is an eternal and ideal value.
A REALISTIC CRITICAL OUTLOOK ON LAW: SOCIOLOGY OF LAWTürkbağ, Ahmet (İstanbul ÜniversitesiIstanbul University, 2012-02-07)Positive law or a legal system as a closed logical system has its own inner coherence and this characteristic is a very important element of a system. It is important because the logical structure of norms which lead concepts and conceptions, at least in theory, is the guarantee of objectiveness or impartiality (thus &lsquo;rule of law') of a legal system. In the second part of the nineteenth century and the first decade of the twentieth century however, legal theory was dominated by a kind of reductionism. It reduced the legal system to logical coherence. Exaggerating the logical element, it neglected other aspects of law &ndash; namely social reality and ethics. The first reactions were important but they depended completely on temporary social or judicial needs and were unsystematic. The second phase was not only a reaction but also gave birth to a new science, the sociology of law. So sociology of law has to have two opposite aspects: first, in order to prevent legal systems being withdrawn it always has to be critical and second, to help solve social problems it has to build up a strong theoretical base.