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Abstract


Interpretation Of The Problems Of Jurisprudence Encountered In The Modern Era On Classical Islamic Legal Sources (Unexpected Situation And Force Major)
Just as in other Islamic sciences, the Islamic Law has been extended a lot in the second and third centuries, which we can call the period of development and maturation. But after the formation of Islamic law sects, the tradition of explaining previously written works prevailed instead of producing new things. After a certain period, this tradition has also been abandoned and a solution has been sought through reinterpretation of new problems encountered through classical sources. However, this method, which has been followed in the dynamic problems of social and economic life, has not provided a serious solution. This, in particular, has led to new quests in the recent period of the Ottoman Empire, especially in the field of law, and thus to the Tanzimat period. In fact, the lack of Islamic lawyers in this area, or in other words, this vacuum in the field of Islamic law has raised the appetite of the western and western admirers and has led them to seek solutions in foreign legal systems. Thus, the gap in the fields such as criminal law and commercial law was largely filled by taking the relevant laws in France; for the civil code, the French Code Civil has been proposed to be translated. But the domination of Ahmet Cevdet Pasha has taken this idea to the second plan and “Mecelle”, a national law based on Islamic law, has been prepared. With the adoption of the Swiss Civil Code in 1926 officially, Islamic Law has lost its function and the chances of finding solutions to current problems through Islamic law have been greatly reduced. Hence, Islamic law has found opportunity to continue its existence only in social life, doctrine, academic studies and fatwa. Although Islamic Law loses its function as binding in the law, new problems encountered in social life have been reevaluated especially through our classical sources and problems have been solved in terms of Islamic Law. Although the same events can not be found in these sources, basic principles that would contribute to similar examples or solutions could be identified. This cumulatively, in the modern period, especially in the field of debts, some unforeseen and irrevocable events make it difficult or even impossible to carry out acts originating from contracts. Today, a number of theories, which are expressed as “force majör” and “unexpected situation/imprecision”, have been sought to solve these problems. This study will investigate the effects of natural disasters in our classical Islamic legal sources on contracts and try to interpret the results obtained from these two theories.

Keywords
Islamic Law, Unexpected Situation/İmprecision, Force Major, Disaster, Jaiha, Comment.


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