Mustafa Ateş

İnebey Yazma Eser Kütüphanesi; Osmanlı Devleti’nin ilk başkenti olan Bursa’daki cami, medrese, tekke gibi
çeşitli ilim merkezlerinde bulunan ve geçmişten günümüze miras kalan yazma eserlerin bir araya getirildiği bir
kütüphanedir. Halen günümüzde matbû olmayan, üzerinde herhangi bir çalışma yapılmayan, bir kısmı ünik nüsha
olup keşfedilmeyi bekleyen birçok değerli eserin bulunduğu kütüphanede; müellif hattı nüshalar veya müellif hattı
ile karşılaştırılmış nüshalar da mevcuttur. Kütüphanede tespit edilebildiği kadarıyla fıkıh usûlüne dair toplam 222
yazma eser bulunmakta olup mükerrerler hariç eser sayısı 96’dır. İnebey Kütüphanesi’ndeki fıkıh usûlü yazmaları,
türlerine göre beş grupta tasnif edilebilir. Buna göre eserlerin 21’i metin, 36’sı şerh, 33’ü hâşiye, 3’ü muhtasar ve 3’ü
risâle türünde kaleme alınmıştır. Bu eserlerin 42’si günümüzde matbû olmayıp yazma halde bulunmaktadır. Gü-
nümüzde matbû olmayan eserlerden 4’ü metin, 11’i şerh, 23’ü hâşiye, 1’i muhtasar ve 3’ü risâle türündedir. Ayrıca
kütüphanede üzerine en çok şerh ve hâşiye türü çalışma bulunan metinler Menârü’l-envâr, Muhtasarü’l-Müntehâ ve
Tenkîhu’l-usûl adlı eserlerdir. İnebey Kütüphanesi’nde bulunan fıkıh usûlü alanındaki eserlerin türlerine göre tasnif
edildiği bu çalışmada, eserler türleri ve müellifleri açısından incelenmiş, günümüzde matbû olmayıp yazma halde
bulunan eserler tespit edilerek çeşitli açılardan değerlendirilmiştir.

İnsanın dünya hayatındaki davranışlarının bir kısmı iktisadî davranışlardır. İktisat (economy); temelde insanın ihtiyaçlarını karşılamaya yönelik her türlü faaliyeti içeren ve özellikle üretim-tüketim-ticaret faaliyetlerine yönelik bir terim olup bütünüyle insan etkinliğine dayanır. Dolayısıyla insan davranışlarını (iyi veya kötü olmakla) niteleyen ahlakın insan etkinliğine dayanan iktisattan bağımsız olması düşünülemez. Ahlakî açıdan bakıldığında bir iktisadî davranış biçimi ya iyidir ya da kötüdür. Bu çerçevede iktisat biliminin rasyonel, nesnel ve evrensel olma iddiası, iktisadî davranışta bulunan insanın bu davranışının iyi ya da kötü olması gerçeğini değiştirmez. Günümüzde istatistiksel yöntemlerden ve matematiksel modellerden yaygın olarak yararlanan İktisat bilimi, disiplin
olarak her ne kadar genellikle teknik bir bilim dalı şeklinde bir görünüm arz etse de insanın iktisadî davranışlarını incelemesi sebebiyle esasında sosyal bilimlerle yakından irtibatlıdır. Nitekim iktisadın felsefe, etik, sosyal teori gibi disiplinlerden uzaklaşması, geçmişten günümüze çeşitli iktisatçılar tarafından eleştirilmiş, ancak bu eleştiriler iktisat
disiplininin genel yapısında pek yankı uyandırmamıştır. Bununla birlikte iktisadın genel kabul gören mevcut yapısı eleştirilmeye ve özellikle iktisat-etik ilişkisi bağlamında yeni teoriler üretilmeye devam etmiştir.

In our study, it is aimed to reveal and analyze the booklet called Shudhūr al-dhahab fī taḥqīq al-madhhab of Dulāma (d. 1179/1765), which belongs to the late period of Yemeni-Zaydī school, with the critical edition method. In the work written as an addendum to Isḥāq b. Yūsuf's treatise called al-Tafkīk li-‘Uqūd al-tashkīk, critical issues related to Zaydī's fiqh such as the nature of the sect and its relation to Zayd b. Alī, the method of the sect, the takhrīj and tarjīḥ terms in the Zaydī fiqh texts have been discussed. The work, which is seen to have a madhhabian understanding compatible with the work called Bulūgh al-arab wa-kunūz al-dhahab fī maʿrifat al-madhab, which was written in the same period, is an essential source in terms of understanding the doctrinal structure of the Zaydiyya madhhab. Another thing that makes the work, which is prepared in the style of question and answer, important is that it was written by a jurist who was educated both from the prominent scholars of the Zaydi community and Hanafi scholars known for their sūfī personalities. The subjects that the work deals with are especially related to Zaydiyya fiqh, but they are also important in terms of the nature of the term madhhab in general. In our study, the preference method was used in the construction of the text of the work, which does not have a copy of the author, based on the four oldest copies, including the copy dated 1238/1823.

The treatises written on specific subjects in the Ottoman period are the works that best reflect the current problems and intellectual interests of the period in which they were written. Considering the treatises written in the field of fiqh, it can be said that these works contain essential data about the mentality and social life of the society. ‘Ālim Muhammad, who is mainly known for his fiqh treatises and died on 12 January 1711, has a total of eighty-four treatises. The treatises of ‘Ālim Muhammad, which have spread to a large part of the Ottoman geography by being copied since the moment they were written, have attracted the attention of both the scholars and high-level administrators such as Kādī ‘Askar and Shaykh al-Islām. The reason for the writing of these treatises, most of which are about fiqh, can be summarized under three headings. Accordingly, the author wrote some of his treatises to criticize an opinion he did not like. On the other hand, he wrote some of his treatises to answer a question in detail and with evidence. Sometimes, although he does not clearly state the reason for writing, he aims to solve a social problem related to social life. Some of the issues considered as problems by the author are about common mistakes in society towards individual behavior, and some of them are about legal problems. In this study, the issues that are seen as legal problems in the treatises of the ‘Ālim Muhammad will be grouped under the main headings and some determinations about the social life of the period will be included. Accordingly, the examples identified in our study can be discussed under three headings in general. The first of these is the problems that arise due to wrong assumptions about worship. In each of the issues in the treatises of ‘Ālim Muhammad, about the performance of the prayer, the al-zuhr al-ākhir prayer, and the Friday prayer in the villages, the problems that arise due to the wrong assumptions and perceptions that exist among the public are discussed. In the other chapter, the issues that ‘Ālim Muhammad criticized on the grounds of bid‘ah or in which he explained the practices that were not bid‘ah although it was claimed to be bid‘ah are examined. In the examples of bai‘al-‘inah, erroneous narkh (officially fixed price) practices and divorce under duress, which are included in the last title, it has been determined that ‘Ālim Muhammad evaluated these issues within the scope of fasād al-zamān. The period in which ‘Ālim Muhammad lived coincides with the last period of the Celali revolts, which lasted for many years. For this reason, it is understood that some administrative and economic problems experienced in society are the subject of his treatises in the context of the fiqh problem. In particular, his evaluations of bai‘al-‘inah and the criticisms of some local administrators about the cruel practices against the people point to the economic and administrative problems of the central government. On the other hand, the debates on bid‘ah and the issues dealt with in worship can generally be considered as problems that can manifest in different ways in every period. The issue of divorce under duress, which is seen as a social problem and tried to be solved within the framework of sectarian systematics, is one of the most striking issues among the examples examined. In order to solve this problem, ‘Ālim Muhammad explains at length with his justifications that the views of other sects can be used within the framework of the Hanafi sect. He discusses the opinion in the madhhab that the talaq of mukrah will be valid on the grounds of fasād al-zamān. This situation shows that some provisions that provide systematic consistency in the sect may be insufficient to solve social problems in practice, and in this context, the ulema’s efforts to produce solutions within the sectarian system. This issue, which ‘Ālim Muhammad opened up for discussion, was enacted in the Family Law Decree (1917) about two centuries later, based on similar reasons, and was enacted as invalid.

Discussions such as not sharing the booty according to the shar‘ī method and the conformity of obtaining the concubines sold by slave traders to the sharī‘a have led to the questioning of the legality of sexual relations with concubines, especially since the 15th century. If there is a possibility that the concubine, who is halal for her owner in terms of sexual intercourse under normal conditions, maybe free, it was deemed necessary as a precaution to marry the concubine because of the existence of this suspicion. If there is a suspicion of property, the marriage of a person with one’s concubine to get rid of the worry of adultery by showing precautionary reason is called al-nikāh al-tanazzuhī. Since the institution of slavery-concubine has disappeared in the classical sense, the al-nikāh al-tanazzuhī has no importance today. However, in our opinion, the al-nikāh al-tanazzuhī is an issue that needs to be emphasized, especially in the Ottoman period, in terms of being a subject of practice and evaluating some historical information in terms of the law. In this context, firstly, the issue of concubine and marriage will be discussed within the general framework of the subject. Then, the theoretical background, reasons and emergence of the al-nikāh al-tanazzuhī will be investigated, its differences from the regular marriage and its legal consequences will be examined, and the examples of the al-nikāh al-tanazzuhī in Ottoman practice will be examined. Again, this study is aims to examine the existence of rules and fatwas similar to al-nikāh al-tanazzuhī and the relationship between them in the Hanafi sect. In the research conducted in this framework, it has been seen that al-nikāh al-tanazzuhī has been included in Hanafi sources since the 8th/14th century. Under normal circumstances, the master cannot marry his concubine. Because the concubine’s a slave, as she is under the property of her master, prevents her from being the owner in terms of marriage. On the other hand, the master has the right to sexual intercourse with his concubine if she does not marry another person. However, as mentioned above, some concubines are suspected of being free despite being sold as slaves. When the court records of the Ottoman period are examined, it is seen that this situation has become widespread enough to be the subject of the court. Of course, concubines who were originally proved to be free could regain their freedom through court. For this reason, the al-nikāh al-tanazzuhī could not be performed for those who were in the status of concubine but were initially free. On the other hand, those known to be concubines were not included in the scope of the al-nikāh al-tanazzuhī. Therefore, the al-nikāh al-tanazzuhī was only applied to concubines who doubted whether they were initially free or not. One of the debates on whether sexual intercourse with concubines is permissible or not, as mentioned above, is the issue of not sharing the booty properly. However, this discussion about the concubines obtained from the booty does not fall within the scope of the al-nikāh al-tanazzuhī, although it is about sexual intercourse. Because there is no doubt that the concubines obtained from the booty are in the status of slaves. The fact that sexual intercourse is not permissible with a concubine, who is the property of booty, arises from the suspicion of ownership of other people who have a share in the booty over these concubines. When the Ottoman court records and the fatwa books of the period are examined, it is understood that al-nikāh al-tanazzuhī is not different from the regular marriage contract in terms of how it is done. However, the results of the marriage contract do not arise with this. Because the concubine status of the concubine he married continues. From this point of view, the idea that al-nikāh al-tanazzuhī is a fake marriage may come to mind. However, just like the al-zuhr al-ākhir prayer, the al-nikāh al-tanazzuhī is aimed at eliminating the doubt in question on the grounds of precaution. Therefore, it can be said that al-nikāh al-tanazzuhī is considered religiously necessary, not legally. When evaluated from this point of view, it is understood that al-nikāh al-tanazzuhī is a fatwa that is put forward to solve a problem that arose later through sectarian ijtihad.

According to Islamic law, talāq is defined as the termination of the marriage with the husband’s unilateral declaration and specific words. Accordingly, it is valid for the husband to divorce his wife without informing, it is not necessary for the wife to be aware of the divorce for the talāq to take place. ʿIddah, one of the results of talāq, means the time that the woman has to wait in case the marriage ends. ʿIddah begins after talāq in case of divorce and after death in case of death. However, the fact that talāq is suitable for concealment, as it occurs with a unilateral declaration of will, allows some savings that are normally prohibited. One of the issues discussed in this context is the issue of marriage with the fifth woman and the sister of the divorced woman. According to Islamic law, it is not possible for a person to marry his fifth wife or his wife’s sister. Again, in relation to this, a man who has four wives and divorces one of them and wants to marry another woman, or who wants to marry the sister of his divorced wife, must wait for the ʿiddah of his divorced wife before getting married. A person who has four wives and claims that he has divorced one of them before and that the period of iddah has expired can marry another woman or the sister of his wife, whom he claims to have divorced, without waiting for the ʿiddah period. Because he states that he divorced his wife before the ʿiddah period. Therefore, in this case, his wife’s ʿiddah period also expires. Again, if it is accepted that the ʿiddah starts from the talāq in case the talāq is hidden, a person who has four wives can divorce one of them and marry another woman when his ʿiddah expires, although he does not tell which one he has divorced. As a matter of fact, after Sultan Abdülhamid II’s death, the inheritance case, in which each of his nine remaining wives claimed marriage, has been interpreted in this way by some legal historians. One of the issues related to the concealment of talāq is the possibility of collusion. The possibility of collusion, which comes to the fore when a person who is sick with death says that he has divorced his wife before and that the period of ʿiddah has been completed, has caused a disagreement within the madhhab about when the ʿiddah will start in the aforementioned issue. A husband who agrees with his wife to achieve a certain purpose may say that he divorced his wife, for example, five years ago. Considering this example, if it is accepted that ʿiddah started after talāq, there may be some purposes that the husband and wife may want to achieve illegally by colluding. For this reason, the mashāyikh gave a fatwa that ʿiddah would start from the moment of acknowledgement, even if the woman approved the acknowledgement in such cases, due to the possibility of collusion and to prohibit concealing the talāq. This fatwa became a rule in the madhhab. It is understood that the fatwa stating that if the talāq is hidden, the ʿiddah will start from the time of acknowledgement, has become a rule in the madhhab at the latest as of the sixth Hijri century. Since this century, no different views or objections have been encountered on the subject. It is seen that especially Marghīnānī, Ḳādī Khān, and Burhān al-Dīn al-Bukhārī were influential in the adoption of the fatwa as a rule in the sect. On the other hand, the statement made by al-Sughdī about the zāhir al-riwāya view was considered important in that it showed that the aforementioned fatwa was not contrary to the zāhir al-riwāya, and it was mentioned on this occasion in many places. According to al-Sughdī, the view in al-Mabsut that ʿiddah will start from the time of talāq is attributed to the fact that the husband and wife live separately from the date of talāq. The separation of husband and wife indicates divorce, and the possibility of collusion disappears However, suppose the husband and wife continued to live together. In that case, it is understood that both of them lied, and the aforementioned acknowledgement and the woman’s approval are not taken into account. In the research, it was seen that this fatwa, which was transmitted in relation to the mashāyikh, was first attributed to Abu Bakr al-Iskāf al-Balkhī within the framework of accessible sources. The fact that the aforementioned fatwa was mentioned in relation to the “Mashāyikh al-Balkh” in the following periods indicates that Abu Bakr al-Iskāf had a significant influence on the adoption of the fatwa. However, it is of course possible that the jurists of other regions brought up the same fatwa at different times. On the other hand, considering that Abu Bakr al-Iskāf lived in the fourth Hijri century, it can be said that the fatwa became a rule at least two centuries later.

Pīrīzāde Ibrāhim is one of the essential Hanafi scholars who lived in Mecca in the 17th century. Pīrīzāde, who is mentioned to have more than a hundred books in the sources, wrote most of his works in the form of treatise. On the one hand, these treatises give an idea about society’s needs and the legal solutions put forward within this framework; on the other hand, the treatises provide essential clues about the period’s fiqh discussions. This study focuses on the analysis and critical edition of a manuscript written by Pīrīzāde Ibrāhim on the subject of mukhala’a (mutual consent divorce). He states that he wrote this manuscript based on a few questions he was asked. In this manuscript, he both answers these questions and examines the subject of mukhala’a within the framework of these questions. Pīrīzāde Ibrāhim, who discussed the issue under five main headings, used only Hanafi sources in the entire study.

XVI. yüzyılda dünya genelinde yayılan tütün, bu tarihlerden itibaren fıkıh âlimlerini meşgul etmiş nevâzil türü bir meseledir. Tütün içilmesinin hükmü, tömbeki suyunun necis olup olmaması gibi hususlarda yapılan tartışmalar, bu alanda birçok risâlenin yazılmasına neden olmuştur. Bu çalışmanın konusunu teşkil eden iki risâle de tömbeki suyunun ve tömbeki içmenin hükmüyle alakalıdır. İbrâhim b. Ebî Seleme risâlesinde, konuyu Hanefî mezhebi çerçevesinde çözmeyi hedeflerken, Pîrîzâde ise öncelikle İbn Ebî Seleme’nin söz konusu risâlesinde yapmış olduğu hataları, yine onun mezhebe uyarak çözdüğünü iddia ettiği hususlarda mezhebe aykırı ya da mezhep usûlüne uygun olmayan görüşlerini düzeltmeyi hedeflemiştir. Her iki risâle karşılaştırıldığında, söz konusu dönemde mezhebe bağlılığın kuru bir taklidden öte, yeni ortaya çıkan meseleleri belli bir bakış açısıyla tutarlı bir şekilde ve mezhep içi yöntemlerle çözme gayesini güden bir anlam taşıdığı açık bir şekilde görülmektedir.

Tobacco, which spread throughout the world in the sixteenth century, has been a kind of humble issue that has occupied fiqh scholars since these dates. The discussions on the issues such as the provision of tobacco smoking and whether or not hookah water is forbidden have led to many writings in this area. The two manuscripts that are the subject of this study are related to the provision of hookah water and smoking hookah. In his study, while Ibrāhim b. Abu Salamah aimed to solve the issue in the Hanafi sect system, Pīrīzāde firstly aimed to detect the errors in the manuscript of Ibrāhim b. Abu Salamah and to determine and correct the implications that are contrary to the sect or not in accordance with the sect method. When comparing both manuscripts, it is clearly seen that adherence to sect in this period is more than a dry imitation and fanaticism, but has the purpose of solving emerging issues consistent with a certain perspective and by intra-sectarian methods.

Ibn Ābidīn (d. 1836) who was one of the prominent representatives of the Hanafi school and one of the late Ottoman jurists lived in a period of time when debates on taqlīd-ijtihād began to increase gradually. He wrote many books especially in the field of fiqh such as Redd al-Muhtār and he was respected by Hanafi people. In this study, it is aimed to establish the evaluations of Ibn Ābidīn in the matter of tabakāt al-fukahā and his original approach in this topic. For this purpose, the evaluations of Ibn Ābidīn on taqlīd and ijtihād will be examined. Because the concepts of taqlīd, ijtihād within madhhab/school and tabakāt al-fukahā are closely each other. When any of these concepts are taken into consideration, others also come to the fore.

In Bursa Inebey Writing Works Library has got 96 different manuscripts about usul al-fıqh within 21 texts, 36 sharhes, 33 hashiyas, 3 concise texts (mukhtasar) and 3 booklet (risâlah). 54 of these manuscripts have published today and 42 of them are still stay non-published. Among these manuscripts, the most studies are Muhtasarü’l-Müntehâ, Menârü’l-envâr and Tenkîhu’l-usûl. There are 18 works on Muhtasarü’l-Müntehâ, 15 works on Menârü’l-envâr and 14 works on Tenkihu’l-usûl in this library. In this article, the works on the three books is briefly introduced, furthermore some rare books about usul al-fiqh were examined in detail.

Hanefi mezhebinde meşâyih, Ebû Hanîfe ve öğrencile-rinin ardından en önemli otorite olarak karşımıza çık-maktadır. Kurucu imam ve talebelerinden sonraki oto-riteyi temsil eden bir kavram olarak meşâyih kelimesi, esasında geniş bir fakihler topluluğunu ifade etmekte-dir. Başka bir ifadeyle ilk dönem Hanefi fakihler ara-sında yetkin ve itibar sahibi olanların fıkhî faaliyetleri-nin önemi ve mezhebe etkisi, onların meşâyih olarak anılmalarıyla vurgulanmış ve böylece mezhepte kurucu imam ve talebelerinden sonra üçüncü bir otorite mer-kezi oluşmuştur. Sonraki dönemde mezhepteki görüşle-rin zâhirü’r-rivâye, nâdirü’r-rivâye ve fetâvâ şeklinde bir ayrımla hiyerarşik bir yapıya kavuşması, meşâyihin mezhep içerisindeki rolü sebebiyledir. Bu açıdan değer-lendirildiğinde her ne kadar kurucu imam Ebû Hanîfe’ye nispetle Hanefi mezhebi olarak anılsa da bu mezhebin gerek onun talebeleri gerekse sonraki dönem takipçileri tarafından geliştirilen kolektif bir yapı arz ettiği rahatlıkla söylenebilir.
Bu çalışma, Hanefi mezhebindeki meşâyih kavramını ve bu kavramla ilgili meseleleri, kavramsal ve kronolo-jik bir takiple araştırmayı hedeflemektedir. Daha önce doğrudan ya da dolaylı olarak meşâyihe dair yapılan diğer çalışmalardan alınan ilhamla, meşâyihle ilgili zih-nimizi meşgul eden soruların cevapları belli bir düzen ve tertip çerçevesinde aranarak bu araştırmada meşâyih kavramına dair genel bir tasavvur oluşması için müte-vazı bir katkı amaçlanmaktadır.

An obsession is defined as an excessive thought or impulse that constantly comes to mind involuntarily, is difficult to get rid of, causing distress and anxiety, despite efforts to forget and prevent it. Compulsions, on the other hand, are stereotyped repetitive behaviors or mental actions that are performed despite the opposing will of the individual at the conscious level in order to get rid of the ideas revealed by the obsessions, although they are known to be unnecessary and meaningless. Obsessive compulsive disorders (OCD) are considered as distinct and specific disease from other mental disorders. There are various sub-symptom groups of obsessive compulsive disorders (OCD), which significantly affect an individual's level of life and quality. In addition to obsessions in the form of pollution and contamination, symmetry and order, doubt and uncertainty, religious obsessions are also one of the frequently seen mental disorders. It can be said that the closest equivalent of obsessive compulsive disorders (OCD) in Islamic literature is waswasah (scrupulosity). As a matter of fact, waswasah is described as a phenomenon that should be protected from in the Qur’an and hadiths. In this context, some religious words and behaviors, which can be considered as obsessive-compulsive disorder (OCD) and defined as waswasah in the classical literature, are discussed in terms of religious responsibilities in the fiqh literature. In this study, it is aimed to examine these disorders in terms of fiqh through some examples of religious obsessive compulsive disorders. Thus, on the one hand, answers to the fiqh questions of individuals who have difficulties in their religious life due to the aforementioned mental disorders will be sought, and on the other hand, the effects of such mental disorders on religious obligations will be investigated.