İslam hukuk metodolojisinde nasların mubahlığa delalet etme yolları

Abstract

Shariah provisions in Islamic theory; it is basically divided into five: vacip, mendub, mubah, mekruh and haram. Mubah expresses the legally free areas where man is free to do or not. Among the Sharia provisions, the most broad scope is the provisions that are categorized as “mubah“. As a matter of fact, prohibitions (harams) in Islamic law are limited and they are determined by relıgıous texts (nass). In principle, the conditions outside the prohibitions (harams) constitute the halal (legally free) area. In fiqh literature, halal is sometimes used as a synonym for mubah, but when it is mentioned as absolute, it includes mendup and vacib. Therefore, it is important to identify the styles / ways expressing ibaha (legal freedom) separately. The word “ibaha”, which denotes legal freedom, or the derivatives of this word are not available in the Qur’an, but the word “ibaha” is available in the some texts of Hadiths. On the other hand, in theory of Islamic provisions it was accepted as a fundamental principle that ibaha (legal freedom) was essential in cases outside of the provisions stating the absolute obligation and prohibition. As a matter of fact, there are many expressions / styles in Quran and Sunnah texts, which express legal freedom directly or indirectly. Ways of knowing the legal freedom in the works of classical jurisprudence have not been emphasized. Islamic jurists of the last period have examined the ways to know the legal freedom under the titles of “turuku ma’rifeti’l-ibâha”, “esâlîbü’l-ibâha” ve “sîyağu’l-ibâha”. However, in these studies, the ways of knowing ibaha/mubah have not been examined as a whole. The ways of knowing the ibaha (legal freedom) in theory of Islamic provisions are basically divided into religious texts and non-religious means. The signification of religious texts to ibaha (legal freedom) is in two ways: direct and indirect. In principle, mubah provisions, which are called as shariah ibaha, are fixed by relıgıous texts. In this article, the ways of expression/indication of relıgıous texts (nass) to mubah (legal freedom) in theory of ıslamic provisions will be focused on.