CAFERİ MEZHEBİNDE ÖRF VE SĪRA ‘UQALĀİYYA ( AKLA DAYALI ÇIKARIM) DELİLLERİ ARASINDAKİ ETKİLEŞİMİN ZAMANSAL ANALİZİ

Abstract

In the Ja‘farī school of law, jurisprudence is not conceived as a civil act, but is instead held to be a religious practice that orientates towards eschatology and theology. The scholarly focus has converged upon the proposition that human society would not reach the true path and salvation unless limitations on the actions and appetites of each individual were first put in place by Islamic ideology (that is explained by the Prophet and Imams). From the point of Ja‘farī scholars, God has sought to impose boundaries upon human activity by putting in place five categories which encompass positive law in its entirety: absolutely forbidden actions (ḥarām), indispensable or expressly commanded actions (wājib or farḍ), admissible or permitted actions (mubāḥ), recommended or desired actions (mustaḥabb or mandūb) and reprehensible or offensive actions (makrūh). In the absence of solutions or rulings that can be achieved through the application of legal texts and methods, the principle of custom (‘urf) emerges as a valid source in response to the impossibility of restricting social issues that pertain to the jurisprudence. At this point, the resort to ‘urf which is applied as a legal principle in urgent circumstances may become an indispensable part of Islamic law that helps to validate the given solution or to categorise the permissible acts within the Ja‘farī school of law. The application of ‘urf might be considered as an affirmation of the position which holds that primary issues of faith (i‘tikād) should be determined with reference to the original Islamic sources including the Qur’an, the Sunna, icmā’ (consensus), ‘aql (reason) according to Ja‘farī school of law. However, here, it should be remembered that the scholars frequently advocate flexible and pragmatic approaches in the sphere of social relations (mu‘āmalāt). The implementation process of rules for cases pertaining to social relations can be said to have given credence to ‘urf being applied directly as a legal principle or as a subsidiary factor that relates to the interpretation of various legal principles. It is quite conceivable that the application of ‘urf will result in changes to legal methodologies and temporary legal rulings that had previously given by the early scholars of Ja‘farī school of law. The flexible nature of Islamic law in the scope of mu‘āmalāt authorises the scholars to interpret the legal sources (in harmony with the necessities of time and place) by using various legal methodologies. It is in fact the case that scholars are required to acknowledge the changing needs and habits of contemporary time during the jurisdiction process by preserving the formal framework of religious sanctity. The scholars have sought to set out the principles in more detail along with the conditions of their implementation. These principles relate to cases in which the true ordinance of God is not clear or deduced from the main sources of Islamic law. At the initial and foundational periods of the school, the classical Ja‘farī scholars openly referred to ‘urf as an independent source of ruling. However, the scholars of later and contemporary period have avoided to address ‘urf directly but prepared a substructure with ‘urf in order to use it during the interpretation of procedural and secondary sources. Among these sources, especially the principle of sīra ‘uqalā’iyya has gained a prestigious position and expanded the range of its validity in legal area according to explanations of recent Ja‘farī scholars. The principle of sīra ‘uqalā’iyya in operating as a legal constraint, prioritises the local conditions of the region and simultaneously operates at the level of theory and practice. The analogical and etymological comparison between the principles of ‘urf and sīra ‘uqalā’iyya clarifies that ‘urf (which finds its origin in the daily practices of people) is considered more vulnerable than and sīra ‘uqalā’iyya (which finds its roots in the rational practices of people).