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Abstract


The Functıonalıty of 'Urf' and 'Istıhsan' in Islamic Philosophy of Law
Legalistic doctrines in Islam which emerged in the second and third century of the Hijrah, predominantly seem to be centered upon the nass (Quranic verses/hadith). Indubitably, the main reason for this is the fact that the social conditions of the period in which Qoran was revealed and in which the Prophet (PBUH) lived stayed unchanged for the most part. This literal/zahiri reading of the nass, which was deemed sufficient throughout the said period, proved to be essential both for the correct understanding of the nass and for preserving its word and meaning. However, later changes in the social environment resulted in a failure of the literal reading in question to satisfy the contemporary legal requirements and in forcing the law methodologists to pursue new answers. While the primary sources, identified as Kitab, Sunnah, Ijma' and Qiyas, were considered sufficient by the early methodologists, the secondary sources such as Maslahah Mursalah, Istihsan, Urf (Custom), Sadd al-Dhara’i, Sharh man Qablana, Qawl as-Sahaba or Istishab gradually became used more broadly. In this study, two of these later sources, namely urf and istihsan, will be examined concerning their functionality in our day.

Keywords
Law, philosophy, urf, istihsan, the methodology of al-fiqh.


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