Modern Debates on the Shar´-´Urf Differentiation in the Classical Ottoman Law
The different approaches to the Islamic law have played a crucial role in the formation of literature regarding the sharia/kanun (sacred law/sultanic law) distinction in the Ottoman legal system. According to some scholars, the Ottoman rulers made legal regulations in public law, because they considered the sharia insufficient in this field. In their opinion, the Islamic law could not be sufficient in the sphere of public law as it was mainly developed during the first two centuries of Hegira, and primarily consisted of detailed rulings related to the sphere of private law. Therefore, they claimed, the statutes in the Ottoman kanunnames (law books) were secular regulations entirely independent of the sharia as they were exclusively based on state authority. Thus, it was normal for state to produce some laws contrary to the sacred law. According to another group of scholars, the kanun was not the outcome of the so-called insufficiency of Islamic law. They asserted that the Islamic law was a legal system that could exist in different times and places with different appearances while maintaining its essence. These scholars regarded the kanun as the legitimate source of authority for the Muslim rulers to make law situations where lacunaes in Islamic law existed. In order to support their argument, they drew attention to certain theories in Islamic law such as tazir (administrative punishment), maslahat (public interest), örf (custom), sedd-i zerai (closing off the means that can lead to evil) and siyaset-i şer'iyye (Islamic administrative policy) which are related to the general principles of law. Rather, the kanun was legitimized by sharia through the above-mentioned theories. When viewed from this aspect it is no longer possible to describe kanun as secular. Moreover, some provisions which were allegedly contrary to the sharia would be seen as legitimate under this perspective.
MUHARREM MİDİLLİ
