Is The Intangible Compensated? The Problem of Compensation for Intangibles in Ḥanafī Madhhab and Late Ottoman Law

Abstract

One feature distinguishing the fiqh madhhabs (sects) that emerged in Islamic history from each other is their theological and philosophical views. When the jurisprudence of the madhhabs is analysed, it is seen that the practical rulings emerge according to a particular theological and philosophical background. For example, the ontological background of the Ḥanafīs is reflected in their views on property, which one of the most fundamental issues of law. They considered existence from a material point of view. They did not accept the benefits that do not have a material existence and that arise depending on the substance of material assets as property in law. What is not property cannot be damaged. Therefore, it cannot be compensated. The Ḥanafīs adhered to their ontological principles to maintain their legal consistency. However, these principles caused some problems to arise over time. Although they overcame these problems with the principle of necessity, this was not enough to eliminate the problem. This problem came to the agenda even in the last periods of the Ottoman Empire. However, there was a new systematics in the field of law then. The issue was dealt with in the articles of law, not in the theoretical texts in which the accumulated knowledge of the madhhab was transmitted. The ontological principles of the Ḥanafīs were distributed to many areas of law within the new system. However, in the last period of the Ottoman Empire and contemporary studies, only the part of the subject reflected in the law of obligations has been addressed. However, areas such as the Press Law and the Penal Code seem to have been ignored, as well. When the other legal texts are analysed, a situation different from that in Med̲j̲elle stands out. The Press Law and the Penal Code had already done what the Med̲j̲elle commissions could do much later. In these laws, things that do not exist in material terms are legally recognized as property.