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TeOJIOriDI 4Ja.K)'JibTeTHHHH HJIHMHH )KypHaJihl
Thesis Studies About in Turkey
Abstract
Thesis studies about in Turkey
MaMJieKeTTHK
YHHBej>CHTeTH .
TEOJIOriHI
<I>AKYJih TETJ.iiHHH
:>KYPHAJihl
13- CaHLI, 2008
33-44-66.
Vahit
. This study takes an account of brief introduction to and assessment of
thesis studied and published in Turkey on Hasan b. Mansur el-zcendi (d.
59211 I 96), known Kadihan "an interpreter of the subject", who is a reputed
Islam Lawman of \: JXII. Century, and a pioneeringfakih of his age. Titles of
thesis studied on are as Ascertainment and Analysis of the
.work of titled 'z-Ziyaddt, and his method in Haniyye,
Kadzhdn el-zcendi and Fetava While introducing these thesis,
content analysis and criticism are preferred as methods.
Keywords: ,
Thesis, Haniyye, Fetava
zet
Kadaha.n ile alakah Trkiye'de tezler
Bu VI/XII. Hukukusu, en byk
fakihlerinden, nictehid" Kadihan Hasan b.
Mansur ei-zcendi (. 592/1196) Trkiyetde ve
tezlerin ve
alakah tezterin Kad1han'm
Ziyadat Adli Eserinin Tahkik ve Tahlili, Kad1han ve Haniyye'deki Metodu,
Kad1han ei-zcencd ve Fetava . Kadihan. B'-' tezlerin
muhteva analizi ve tenkit C:ihetinEf de
. Anahtar KE!Iimeler:
n Ph.D. Ankara University, Faculty of Divinity, e-mail: vahitgoktas@gmail.com
. '
21

Tez, Haniyye, Fetava
Introduction
Hasan b. Mansur el - Ozcendi, who is kno\\-11 with his nick in
Islam law history and who passed away in Bukhara in591/1196, was bom in
Ozkent city ofFergana district of Maveriinnehr in 12. century and lived in this
geography. In the period of the Karahans were prevailing in the
Maveraunnehr region, which is the first Muslim Turkish state. In this period, it
be easily said that there was a high Ievel of scientific movement in the
region due to the scholars raised up and the madrasas that were established.
was raised up in a geography where the scientific movements were
intense and in a family atmosphere which pomoted scholars. In the
period when he lived, he reached the d.egree of "mujtahid in issue" in
mazhab", namely "ehl,t-tashih ve't-tercih"
2
and has received therankof the
master of lawmen. He has learnt science from important scholars and
also taught to pupils. His most famous works is the Fetava
which is also known as Haniyye, which mainly isa book of fatvva.
also has other woiks, namely Camiu 's-Sagfr, Kitabu A1esai!i '!-
Gurur which currently exists in ou..r han ds, and Camiu '1-Kebir,
ve Edebi'l-Kddi, el-Emali, el-Vakuit,
. Fevaid, Addbu '1-.fudala , which are the works that are nam ed but have not
reached to our days.
Thesis are the essential works that are prepared . by researchers, who
conduct scientific research, after long efforts. In our country and in the works,
many of the thesis' are not published due to lack of opportunities, and the
opportunity to use them is limited. In some countries, there is access to the
thesis only in the institute where it is prepared, and there are restrictions on
using the thesis due to various reasons. However, thesis prepared in Turkey can
be collected ina center ina higher education institution. This center. in YOK
gives the readers the opportunity to readand photocopy these thesis.
3

Despite the fact that is a pioneering scholar of it is hard to
say that there are related to the life, works and opinions of this
person. Three thesis hav:e been prepared iri Turkey about as far as we
could determirie. Two of these are masters thesis' and orie is a thesis. In
1
Kadihan belorigs to the Merginanis family, .which is considered. a pioneer in in
scientific terms.
2
Karaman, Islam Hukuk Tarihi, iz Yay., 1999, s. c.
V, s. 279.
Thesis prepared and being prepared in Turkey can be scanned at www.yok.gov.tr There is opportunity to
read 1 O thesis in pdfformat in electronic media, with the condition to become a member of this page.
TeOJIOrH.SI 4JaKyJI&TeTHHHH HJIHMHH X<)'PHaJibl
our current study, we aim 'af making a short description about the thesis
prepared and published about Hasan b. Mansur el-Ozcendi (d. 592/1196), who
is known with this title who is one of the leading faqihs of his time, a
famous Islam of VI/XII. Century, with the opinion that this will
benefichil for the researchers.
Kadihan and his method in Haniye, Cumhuriyet
University, of Social Sciences, Masters Degree, Consultant:
Assoc. Prod. Hakki Aydin, Sivas 2001, p 148.
, In.., this thesis, a content analysis has been performed about "Fetav!y-i
which is known among scholars as "Haniye", which is the most
importa.nt.and famous work of The thesis comprises of premise,
three sections and conclusion. In the first section, information has been
provided about the author in general, and about his fiqh and history. In
this section, the periods of Islam Law up to description of
:and the periods of fiqh from the Prophet (SAV) to the Abbasid period are
deseribed generally. Besides, Information has been provided about the
, Hanafi: sect, which belongs to. The fatwa books are studied in
. detail due to the fact that there are closely related __ b;> the issue are
examined in various aspects. : '' . .- :
the second seetion of the . work, the life of is exani'ined.
White studying' this -section, the basic resources are and'efforts are
: demonstrated to .give :a brief su m mary of the subject, sin ce there are lots -of
works about the issue. Second h and resources are referred .. for issues
which required lriterpretation.-. In the second seetion of the.' thesis,
information h,as been provideci;ftbout.the environment in which has
lived. Since lived In .?. time period and geography which the
Karahan li state, which is the f_i,rs_t Muslim Turkish state, preva.iled,
information has been providecf about In that period as well" as the
. Karahanli madrasa;s as well as the situation of Hanafr sect in this period.:
In the third ,.mairi seetion of tlie thesis, Hanjye;- the Wdrk of
and the method of this .work are studled. The author has provlded
the index of the issues included . in the book , after the introduction of
. HaniyYe. Following this, the system!tlc style of the
work are studied .. Titles are from certain predeter:irli.ned
whlle studying the issues, and are studied within' tt\ e Jrame of
these headings. Since the scope' of the wrirk is limited to .the work of
named HAniyye, other works and the content of the works are not
. mentloned. In the third seetion of the work, same terminology frequently
used by are determined and these are studied. Based on the work
titled Haniyye, the view point of han towards lawmen before him
ls -demonstrated. Concerning the content analysis of the work, following
lssues are considered about the method of wile authoring his work;
1. Senaration of the to !:>n...l co ... - ... :---
ilAHiYAT FAKLTESi
a. Examples about describing an issue
.)3xamples about direct to the issue and i ts
Studying the issues theoretically
a. Gjving a direct judgment on the issue
b. Giving solutions to some hypotetical problems
4. lssues on which the three masters of Sect (Ebu Hanife, Ebu
Yusuf, Imam agree .
5. Issues of dispute among masters of sects
6. Issues on which the sect masters do not have healthy narratives
7. !nCluding opinions of other sects
a. Examples about the Quran verses .
b. Examples about sayings ofprophet (hadeeth), and the iss.ues are studied
under these
not only referred to the opinions of faqihs who lived before him
the subject he. deals with, but alsa he emphasized that lle preferred the
opinions of. some sect which he referred to he mentioned about
his and jurisprudence .. In ihe last seetion of the work, assessments
made about the place of and his work, Haniyye, the realm of
Islamic La"'. ' : : ; . . .
A general accoq.nt of the work is given in the CQnclusion part of the thesis.
In summacy, Hasan b. Mansur el-Ozcendi, who is known_:.with his nick
is:'an important faqih, who in l2:>century in Ozkent city of.
Fergana district of and passed away in Bukhara in 592/1196. In
the period . of J(arahans were the Maveraup.nehr .
region, whjch is the. Muslim Turkish state. iarahanlis has estabshed
great madrasas is :Khori;lsait and Maveraunnahr fqng before the madrasas
establisheq_by Saljukian:State. Important science and cultural
figures we_fe grown in which were establisherl in Bukhara,
Semerkan4:,and was.porn in a:family which has grown
numeJ.'ous in such an He has become famous as the
master of his has reached the degree of
and he taq:ght to ni&ny imporlant per,sons. has Haniyye,.
which is kriown among .. f Although this W9fk is
namedas it a work of..ftqh. covers all
of the ibad_at, muailJa/at and of Isiani Fiqh. lt Is a systematic
work. Its is reason, been &.main reference
books high)y reputed.;among se'ct. . .
-. "-:. -- - . - - . .. .- . ' . . ! ..
. ;
'
; .
. 24
reonoriDI <J.>aKynhTeTHHHH HIDIMHH
Samagan, el-zcendl and Fetiiva
Kadlhan, Ankara University, Institute of Social Sciences, Masters Thesis,
Consultant: Assoc. Prod. Osman Ankara 2002, p 92.
This work of which studies the life, works and
opinions of comprises of a premise section, and one
conclusion section.
The author has studied the life, works and tra.ining of in the
first setion. In this seetion of the thesis, information about his life has
. been given in short due to the lack of sufficient information. In this section,
the training of his scientific activities, places where he recelved his
education., sciences he learnt, his teachers and pupi_ls and his scientific
personality are studied in _general. Again in this section, the professional
life of and his works other than Fatawai are studied.
second seetion of the thesis, the most reputed work of
Fetawa ls studled. Information about this seetion mainly rely on
the Arabic tabaqat books. This seetion covers a significant place in the
thesis. has studied the work titled Fatawa in four
main headings. He emphasized the issue of fatwa and a general
information has been given about Fetawa Following this, the
method of authoring and the issues of Fetawa are examined and
comparisons are made. Accordingly, the work is not written in the form of
question and an.swer. has demonstrated various approached In .
. each seetion of the work. Th.ere are differences the classification of
sections of the work compared to other works. studied the same
issue in various different parts. explains the reason of the fatwas
he gave. Kadihan has mentioned the opinions of the masters of sects,
scholars.lived before him and the scientists and faqihs lived in his period.
In this part of the thesis, studied the works mentioned in
Fetawa and Hanafi fatwa books before Fetava Kad1han', the place
of Fetava Kadthan among the fatawa books, and to which fatwa books this
work has acted asa
then condueted works about specific issues which he
sefected from inside the work. The heading of the third seetion of the
thesis is : '' Opinions of about . family law in . his Fatawa"
this seetion under two headings. These include the
.marriag_e law and dlvorce law (talaq) .. The nikah seetion studies
such issues as pr:esence of a guardian, right of the guardian, the witnesses,
mehir, type of mehir, mehri misil, right to determine the. mehir and
disputes on mehii". Divorce law included issues related to taJaq, proxy in
talaq, conditional divorce, zihar, ila, hulu, iddet and nasab.
In the fourth. seetion . of the thesis, the "opinions of about
debts in mentioned in. his Fatawa" are deseri bed. This seetion dea ls w ith
:_:vidous trades, .. non-bindfng coritracts,. condition being on
wltness.ing being on approvaf, defect be ing in approval, and ikale .. . l.n .this
. section, due to the faet that did not have any outstanding pinion
25
FAKLTESi
about sales contract and that this contract type has been adopted by all
fiqh sects, these contracts were not emphasized, and the opinions of
about the types of vicious contracts, which are first mentioned by
Hanafis, were mentioned.
In the fifth seetion of the thesis, the "opinions of about
penalty law in mentioned in his Fatawa" are described. In this section,
similar to the issues mentioned in classical fiqh books, subjects such as
murders, erime requiring reprisal (qisas), qisas fi'n-nefs, political reprisal,
the criminal being killed white committing erime, effect of joint action in
killin on reprisal, doubt in killing, qisas fi'l etraf, crimes which do not require
qisas, crimes which require hadd, hadd of adultery, qazf, hadd of drinking
spirits, hadd of waylayering, theft, crimes requiring tazir are examined.
Crimes of hadd and crimes of tazir are examined in separate issues. In this
seetion alsa the damages caused by animals, crimes comrnitted by children
and crimes jointly committed are deseribed in detail.
The author has made a general assessment in the final seetion of the
thesis. According to this, has integrated his personal
characteristics with the environment he was grown in. The fact. that his
family came from a scientific background and the environment he was
raised up lead to the person like has received lectures
from the most reputed scholars of his time, and he raised various
students. He is a scientist with which is lead by his
position. His most famous work is Fawata This work, with its
reputed opinions and felicitous solutions to problems, has been used as a
resource by many _scholars after him up to our days. In thts work,
reflected the opiriions of Har.afi sect, which is his sect, and provided
important contributions to the literature of this sect. He provided various
examples in his work about the issue, mentioned different methods and
alsa included his own opi.nion. emphasizes up to date examples
while studying an issue.
As a conclusion, the most essentlal aspect of Fatawa is that
lt is a book of fatwa rather than being a book of and that it has a
significant place in the history of.fatwa.
While working this work of demonstrated the
opinions of in terms of method, and did not prefer the
method of comparison. He only confined with short While
making canceptual analysis, works of the current lawmen are referred to.
Comparisons are made with the problems of our day while studying the
issue.
Abdullah, Tahqeeq and Tah/eel of . Kadthan's Work
Nairied Marmara University, Faculty of S.ocial
Sch:!nces, Ph.D thesis, Consultant: Prof. Dr. Fahrettin Atar,
2002, p. 110+926
26
TeOJIOnUI cpaKyJihTeTHHHH HJIHMMH )KypHaJihi
The thesis comprises of one introduction
1
four sections and one
conclusion. Sevim indicates his basic target in studying such an i.ssue as
follows: "Kad1han, who has an elite position in Hanafi fiqh, authored
numerous works. Works other than the one named
11
ei-Fatawa" are
manuscripts. There is a widespread opinion that analyzing the manuscripts
is a very benefidal service. Based on this opinion, we have believed that
making a tahqeeq and tah/eel of all of the works of this scho/ar, who is
known as the "mujtahid in issue" or at least "mujtehid of fatwa and ehl'u/
and particularly his manuscript work named will
be very beneficial for the academic realm. For this reason, we have
determine the tahqeeq and tah/eel of the work named as
the subject thesis."
It should be first emphasized that the work of named
is an incarnate work which provides important information
and hints to t,hose who particularly deal with fiqh.
In the introduction part of the thesis, Sevim studied the political and
intellectual background of XII. Century Anatolia, in which ljved and
which is known as the age of imitatian in the history of fiqh, and
emphasized the Turkish immlgrations to Anatolia after Malazgirt victory,
Turkish immigrations to Anatolia over Khorasan and the religios, civilization
and cultural changes caused by these immigrations in Anatolia. Besides, he
took a look at the political, civilization and scientific status of Karahanlis.
Also in this seetion of the thesis, the characteristics of this period,
which is known as the period of imitati6n
1
are ass.essed.
The heading of the first seetion of the thesis is life, his
works, and his place in and fiqh method". In this section, information
has been given about name, ancestry, place and year of birth,
and places where he lived, namely Ozcend and. Fergana. White giving
information about the placed he lived; the Islamizatian of these regions and
the scholars and faqihs lived Jnthe region are considered. In the seetion
related to the life of the issues of his teachers, students and
deatha are studied. Also in this seetion of the thesis, the works of
deseribed in a wide format. Fallawing are the works that are in our
ha: rio s taday:
': ei-Feta.va'l-haniyye
. : 2.
, . Kitabu Mesaili'l-gurur
' . Works have not reached to us but mentioned in the resources
are as follows:
1. ei-Emali
2. , ei-Mehadrr .
3. . Edebi'I-kadi
4. e/-Vakiat
s. Fevaid
6. Adabu'l-fudala
27
ilAHiYAT
We are of the opinion that failure of these works to reach to our dates
isa great loss particularly in terms of the science " " .
Anather title of the first seetion of the Place of
and method of fiqh according to Sev . the
following in ord er to _estabfish the place of the of
"The fa ct that the works of titlede/-Fetava, dimii's-sagir,
and Email were referred to in 1090 parts of 14 books
pertinent to various sects, which are lead by Hanafi sect, demonstrates that
had an importance place in the science of fiqh. is quoted
with praise in the tabaqat books. The fact that he is referred to as the
"mujtahid of fatwa" '
1
ehlu't-tenkih" and "mujtahid in issue" demonstrates
his place in the science of fiqh. In order to set the place of in the
science of flqh, Sevim details the following issues:
His jurisprudences (ijtihad) in the form of preference
2. His ability to deal with the issues using both the abstract and issue-
based methods
3. His ability to involve principles of fiqh in his work
4. His ability to include the opinions of Faqih Ashab, Mutekaddimun
and Muteahhirun in his work.
In order to determine his place in the method of fiqh, he studies the
evidences he used and the ways of using such evidences. Accordingly, the
evidences relied on by are as follows: Quran, sunna, ijma, qiyas,
istihsan, istishan, tradition - customs, sayings- actions of ashab
Also for the purposes of determining his place In the of
procedure, he studied some fiqh procedure concepts mentioned in his work
named These concepts include the following: The te'vil of
hadeeth, relying on haber-i vahid, liaynihi haram-ligayrihi .haram,
mentioning the karaha and intending for prohibiting,_ tenzihen mekruh,
tahrimen mekruh,tahsees of amm, sefef, precautiof1. -_
After studying the life, works of and his place in fiqh and
procedure of the first seetion of the thesfsi in the second section,
works such as ez-:-Ziyadat and are presented. Whife
studying this section; the subject of the work, works conducted in relation
to the work, way of studying the topic, and his place among Hanafi
resources are detailed. These two works and also ei-Fetava and Mebsut are
examined in terms of content and exampled topics. Besides, Sevim
prov!ded the researchers with a wide document related to the manuscript
copies w ith in and outside Turkey.
In the third seetion of the thesis, information has been given, though
very briefly, about the method followed in the tahqeeq and tahlil of the
work. Accordingly, comparison of the copies, demonstrating the dif.ferences
in copies, authoring of the text of the work, referring to Quranic verses and
hadeeth, giving the resources for the hadeeth, describing the important
persons, determining the principles of fiqh, establishing the resources of the
work and the methods followed while doing these are taken into
consideration.
28
HllHMHH
Before giving the analyzed text, which is the fourth seetion of the
thesis, a general evaluation is made in the conclusion part of the work.
According Iy, the work n amed is written with the style of
authoring, not commentating. Event based method and abstract method
are used in authoring the work. The work has been prepared by using the
opinions of fiqh scholars as well as numerous reliable fiqh resources. The
work includes important findings in terms of comparative Islam law. As a
conclusion, is a candidate of being one of the important
resources of Islam law even today.
Review
Three works studied under the headings Tahqeeq and Tahlil of
KadJhan's Work Titled " Kad1han and his method in
Hfmiye, ei-zcendi and Fetava Kadihan fill an important gap in
their fields. Part of the works of such an important person is stili alive as
manuscripts, waiting for the researchers. Works conducted about this
scholar, who is so much valuable that each of his work could be
studied in a thesis, are not sufficient. However, in order to avoid that the
works conducted repeat each other and no effort is wasted away, it is
required to collect information on who works which subject in a center to be
established and to enable the researches to execute their works in this
center in a coordinated manner. Three thesis prepared were studied on
dates close to one another. Asa matter of fact, this is evident in the points
that are similar in all of the three thesis, which had diffen:int subjects and
were prepared independent from each other, as we have mentioned above.
Particularly the information given about the life of mainly repeats
itself, although this does not mean that it has not benefit.
29