Akademik Veri Yönetim Sistemi
CUMHURIYET ILAHIYAT DERGISI-CUMHURIYET THEOLOGY JOURNAL, cilt.26, sa.2, ss.717-741, 2022 (ESCI)
In this study, first the basic principles and approaches of legal realism will be introduced, and then it will be compared to some particular issues in Islamic law. The uncertainty approach advocated in legal realism cannot be found in Islamic law, therefore, the analysis will be carried out in terms of the issues where is a consensus (ijma) and where certainty is found via authenticity (thubut) and meaning (dalalah). Because in Islamic law, ijma refers to the most advanced fixed and clarified legal notion which is transformed into firm evidence and sealed the controversial issues. The subjects of consensus are among the fixed, untouchable and backbone topics in Islam. Contrary to the methodological, conceptual and principled uncertainty expressed in legal realism, it should be stated that there is certainty on the sources, concepts and principles in Islamic law. The fact that law practitioners operate on an uncertain ground makes the rule of law impossible and turns unlawfulness into its basic form. Muslim legal scholars do not consider legal rules that become clear with ijtihad as absolute law. The possibility of error will always exist for a mujtahid- despite he is bound by his own ijtihad. The approach that ignores the source of law inevitably becomes contradictory to Islamic law. Because the science of fiqh, which expresses the structural analysis of Islamic law, is essentially based on the concepts of finding the root and the determining the root. Contrary to legal realism, in Islamic law, it is impossible to ignore ethics at legal level, in other words ethics takes an indispensable position in both theory and practice of Islamic law. Despite the approach of realists that justice is subjected to law, although it is said that justice is subject to law in matters reached the consensus, it is not possible to talk about the fixation of justice at the level of ijtihad. Even though the current law formed by case law is fair, the new law that can be formed with new case law will also be fair. In this state, at the level of case law, justice is guided by law and at the same time it governs the law. While the legal realists say that all legal rules express possibility; the Muslim legal scholars have taken the balanced approach by emphasizing that some rules express certainty and others imply probability. In realism, concepts, methodology are unimportant and worthless, the results are what matters. In Islamic law, the method is as important as the result or even more than the result. In Islamic law, arbitrary sentimentality and personal tendencies in the clarification of law are not acceptable in judicial processes. As seen in the legal realism, for Islamic law, it is not possible to defend a casuistic approach of focusing on the event by ignoring the general rules of law for any period and the schools of Islamic law. To qualify any judgment to be Islamic, this judgement should be based on the al-Kitab, al-Sunnah, and the abstract legal norms. It is not possible to make an analysis by ignoring the na.. (the divine sources of Islam). Although the pluralist approach may seem positive in terms of offering a wealth of alternatives at first glance, it involves significant risks in terms of consistency. Each legal system and school have its own unique history, geography, concepts and methodology. The legal norms produced by each civilization basin, the value codes of that civilization are loaded. A legal system that is free from the value codes of the civilization in which it was born is unthinkable.