| dc.description.abstract | The subject rule, which is one of the most fundamental issues of the Islamic legal theory (usul al-fiqh), has been in the center of methodological debates. There is one important term in this regard, which should be studied very carefully: Khitab (speech) of the God. It is because that, especially since the first period of Islam, it has been taken with some significant terms in the field of Kalam such as Husn (pretty; good), Qubh (ugly; evil), and the quality of God's talk. Yet, adopting this term in the description of the rule shows that Fiqh is based on divine inspiration, and it also emphasizes that even though there are some differences in details, wisdom of human being is not ignored when adjudicating. Moreover, it suggests that the validity or methodological accuracy of the rule which is adjudicated with ruling case is related to the connection through the term speech or divine inspiration. In this regard, Kalam dimension of the term and its affect to legal theoretical discussions are very important in terms of historical process of the definition of the rule in Islamic law. In this study, I tried to examine whether or not the term khitab of the God which is used in the definition of the rule formed a limitation for consideration of legal evidence in Islamic law and if there is any limitation for the legal evidence regarding being only in the Qur'an and the Sunnah due to this definition. Summary: The hukm (rule, arbritation, judgment, God's will) - as the backbone notion in usul al-fiqh is one of the significant key notions discussed in the legal theory. Specifically, the term khitabullah mentioned in the definition of hukm is noteworthy to investigate. Since the early formation period of Islamic law, the term khitabullah has been embraced along with the theological subjects: husn and qubuh (the good and evil) and kalam (the attribute of speech to Allah). The term khitabullah in the definition of hukm emphasizes that indeed the source of fiqh is the revelation (wahy) and also emphasizes that the function of reason ('aql) is not ignored in the process of adjudication-even if there are some nuances in details. Additionally, it presents that the validity or methodological accuracy of the rule which is adjudicated with ruling a case is connected to the term speech (khitab), or in other words to revelation (wahy). On the whole, in the legal theory, the rule of Shariah is defined as God's khitab (the communication of God), which means the demand of God relating to the acts of those who are subject of law or the effect of the khitab on the acts of those persons. Although, in the early formative period various explanations were made about what the rule is, it can be understood that the present definition of hukm began to evolve towards the end of the 5th century (A. H.). It is clear that al-Ghazali had an impact on the formation of this definition. It is because al-Ghazali defined the rule of Shariah as the communication from God relating to an act of the person who is the subject of law. After al-Ghazali, al-Radi and al-Baydawi added to al-Ghazali's definition the words iqtida and takhyir and Ibn Hajib added wad'an. Whereas in the Mutakallimun (theologians) tradition, Ibn Hacib's definition was preferred, Fuqaha (jurists) tradition chose two definitions-resembling each other: Those coming to exist with the khitab and the effect of God's khitab. Along with al-Ghazali's definition, the concept of khitab carved out a niche for itself in it and became the main element of the definition. It is understood that some discussions in the field of theology, such as husn-qubh and God's attribute of speech have been effective on the interpretation of the concept of khitab. The Ash'ari legal theorists argue that the good and evil are not attributes of the self / the acts, whereas the Maturidi legal theorists argue that the exploration and determination of these attributes is rational and thus, the verdict reached via this rationale is lawful. The Maturidi legal theorists initiated the concept of being subject of law with the concept Shari'ah and in the line with this opinion; they defined hukm on the basis of khitab. On the other hand, the Mutazilites' claiming the attribute of good and evil are inherent feature of the act, did not define hukm on the basis of the khitab according to their theological understanding. The word of khitab assessed with God's eternal speech (al-kalam al-azali) has been approached from various aspects: for instance, whether the presence of the addressee is mandatory. The early Asharites scholars (mutaqaddimun), in particular Imam Ashari, did not entitle the eternal speech as khitab. They consider that the presence of the interlocutor is necessary in the conversion of Kalam into khitab. The mutaakhirun Asharites (successors of the early Asharites scholars) did not consider the presence of the interlocutor necessary, thus they viewed the eternal speech as khitab. The former identification of the hukm with khitab by the early Ashari legal theorists caused to the problem of whether hukm is adventitious or not. Therefore, this approach was criticised by the Mutazilites. On the other hand, the Maturidi and Mutezilite legal theorists accept that hukm is adventitious; hence they do not consider as a problem naming the eternal speech of God as khitab. When the historical course is examined, it can be said that one of the important aspects of the development of hukm's definition is the use of khitab. Khitab in some cases is used without possessive construction, in other cases it is used with possessive construction with God, or in possessive construction with shar' or Shari'. The most important one within these possessive constructions is the notion khitaballah. Therefore, it is necessary for khitaballah to be approached from the angle of the legal theory. In comparison to other terms, this notion narrowed the scope of the rule down. In the meanwhile, it raised the question: how the rule deduced via legal evidences can be incorporated in khitab? As a consequence of this question, some legal theorists, such as Tufi, proposed another definition by adducing this question. Although it is commonly accepted that the rules deduced via other evidences are within the context of the khitab, there are also different descriptions about the concept of khitaballah. The rule is not limited to khitaballah in the conception of traditional interpretation accepting the khitab as eternal speech or literal speech (al-kalam al-lafzi). Because either all evidences are within the context of the khitab, which is the eternal speech or other evidences are within the context of the khitab, which is the literal speech. Thus, each result coming to exist with the other evidences is part of the Islamic law. But not all of these rules are considered equal to each other. Because each rule which is deduced from indisputable origin (qatii al-thubut) and is deduced from completely explicit sources (qatii al-dalala) are accepted as the word of God or the Prophet. On the other hand, other rules deduced via jurisprudence-in other words by jurist's own value of judgment is viewed as the virtual rule (al-hukm al-zahir). Such rules do not express absolute certainty. It is unacceptable for these rules to be described as the word of God or the Prophet. In this way, it is clearly understood that the concept of khitaballah mentioned in the description do not introduce restriction to the evidences of Shari'ah. We do not see a contradiction when the indefinite rules of Islamic law included in the context of khitab. Because ijtihad does not aim to produce a new rule, on the contrary it functions in order to find out the already existing rules. The legitimacy of the rule obtained through ijtihad emerges from the way that this rule is deduced from the khitab, which directly or indirectly represents the divine will. In addition, according to us, this legitimacy is not merely limited to versification and conception of the khitab, but it also includes the function of the reason in (reasonable of the) khitab. As a matter of fact, trying to solve unlimited cases with limited texts is difficult-in fact this is impossible. The majority of the legal theorists also share this opinion. Then, there is no obstacle in accepting that each rule obtained by authentic source and methodology can be considered part of Islamic law by implicating the rule in the context of khitab (which represents the divine will) - although it may contain error and presumption. | |
