İslam Hukuk İlmi Açısından Makâsıd İctihadının ya da Teleolojik Yorum Yönteminin İlkeleri Üzerine

Abstract

Ijtihad and reason of law (ratio legis) are two crucial concepts of fiqh, which requires each other. Development of law preserving its vitality in parallel to progress and change of social conditions depends on ijtihad while this developments’ being in accordance with legislators intentions is due to compliance with the reason of law. For the expected development and vitality of law, mujtahids who makes law and judges who implements law should give central importance to the finalist character, namely the reason of law (ratio legis), in their interpretations and judgments. Because of its critical function, in legal doctrine, it has been accepted for a mujtahid to know the intentions of law as crucial. Although it is so important to determine the legislators intention (ratio legis) and to establish the legal system according to this end, subjectivities emerging from the content of the subject and subjective interpretations are seemed as dangers to be challenged. Some principles and assumptions must be determined in order to prevent the dominance of subjectivity in law, which can be the result of an attempt to find out the intention of the legislator. This article tries to find out these principles; therefore, it indicates the ways ofevaluating text and sense of a law together.