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research İslam Hukuk Tarihinde, Şâtıbî'den sonra İslam hukukçularının büyük ölçüde Makâsıdu'ş- şeriâ teorisini uyguladıkları söylenebilir. Makâsıdu'ş-şeriâ naslarda yer alan dinî ve amelî hükümlerin gayeleri anlamına gelmektedir. Buna göre şâri, şer'î hükümlerin bütününde veya büyük çoğunluğunda çeşitli mâna ve hikmetleri göz önünde bulundurmaktadır. İslam yasaları, bireyin faydasına olacak çeşitli hikmetler, gayeler ve sebepler barındırmaktadır. Bu yönüyle İslam hukukunda hükümlerin illetleri tesbit edilmeye (ta'lîl) çalışılmıştır. Böylece karşılaşılan yeni fıkhî meselelerin çözümünde ta'lîl yöntemi uygulana gelmiştir. Bu uygulama kıyas olarak şekillenmiştir. Günümüze ulaşmış ilk usul eseri olan İmam Şâfiî'nin er-Risâle'sinden itibaren yazılan usul kitaplarının büyük çoğunluğunda ta'lîl düşüncesinin açık bir göstergesi olan kıyas, bir hüküm çıkarma metodu olarak yerini almıştır. Böylece her dönemde kıyas/ta'lîl yöntemi uygulanmıştır. Makâsıd teorisine göre şâri tüm insanlar için her hangi bir sınıfsal ayrıma gitmeden beş ana maksadı/ilkeyi/maslahatı gözetmiştir. Dolayısıyla çıkarılacak hükümlerin de bu beş maksadı ihlal etmemesi gerekir. Kur'an'da yer alan hükümlerde de bu esaslar görülmektedir. İslam yasaları bireyin korunması gereken haklarını zarûriyyât, tahsiniyyât ve haciyyât olarak üç sınıfta değerlendirmektedir. Zarûriyyât, en üst düzeydeki yararları, yani toplumun varlığı ve dirlik düzenliği için vazgeçilmez temel hak ve değerleri ifade eder. Bunlar hayat (can), nesil (nesep, ırz), akıl, mal ve dinin korunması olup literatürde "zarûriyyât-ı hamse, mak?sıd-ı hamse, külliyyât-ı hams" gibi adlarla anılır. Bir devlet adamı olan Prof. Dr. Necmettin Erbakan'ın yasama ve hukuk sisteminde bu beş esasa vurgu yaptığı ve uygulamalarında bu esaslara riayet ettiği anlaşılmaktadır. Bu çalışmada Erbakan'ın makâsıd anlayışı ele alınmaya çalışılacaktır It might be said that Şatıbi’s theory “Makâsıdu’sŞeria” mostly has been applied by scholars of Islamic Law. The meaning of “Makâsıdu’sŞeria” is purposes that are taking part in the rules that has to be obeyed that are religious and practical provisions. Accordingly Şâri has to take into account the different meanings and aphorisms in the complete or most of the Islamic provisions. Islamic provisions are containing some purposes and aphorisms that are helpful for the individuals. From this perspective the reasons and deductions of the provisions are tried to be determined in Islamic Law. Moreover the deduction method has been used to solve the new jurisprudence problems that have been met during the process. This application in Islamic taught has been shaped as comparison. From the first methodology book er-Risale of Imam Şafii, the written methodhology books have used comparison as a source of provision method. Therefore the comparison method has been applied in every term. According the purpose theory Şari has taken into account five main purposes-principalthe reason why something is for the good, without making a classification. In this case the provisions that will be made should not breach these five purposes. These essentials can be examined in the provisions that are held in Quran. Islamic law is classifying the protection of the rights of individuals from three different perspective such as zarûriyyât, tahsiniyyât and haciyyât. Zarûriyyât is the uppermost rights, which are containing of the rights that are necessary for the unification, protection and amity of the community. These are life, generation, mind, assets and religion. In literature they are called “zarûriyyât-ıhamse, mak?sıd-ıhamse, külliyyât-ı hams” meaning that the necessary five. It is been proven that Prof. Necmettin Erbakan has been emphasizing these five essentials in the jurisdiction and legislation system and he has been taking care of these essentials in his applications / practices. Erbakan’s purpose understanding will be tried to hold in this study It might be said that Şatıbi’s theory “Makâsıdu’sŞeria” mostly has been applied by scholars of Islamic Law. The meaning of “Makâsıdu’sŞeria” is purposes that are taking part in the rules that has to be obeyed that are religious and practical provisions. Accordingly Şâri has to take into account the different meanings and aphorisms in the complete or most of the Islamic provisions. Islamic provisions are containing some purposes and aphorisms that are helpful for the individuals. From this perspective the reasons and deductions of the provisions are tried to be determined in Islamic Law. Moreover the deduction method has been used to solve the new jurisprudence problems that have been met during the process. This application in Islamic taught has been shaped as comparison. From the first methodology book er-Risale of Imam Şafii, the written methodhology books have used comparison as a source of provision method. Therefore the comparison method has been applied in every term. According the purpose theory Şari has taken into account five main purposes-principalthe reason why something is for the good, without making a classification. In this case the provisions that will be made should not breach these five purposes. These essentials can be examined in the provisions that are held in Quran. Islamic law is classifying the protection of the rights of individuals from three different perspective such as zarûriyyât, tahsiniyyât and haciyyât. Zarûriyyât is the uppermost rights, which are containing of the rights that are necessary for the unification, protection and amity of the community. These are life, generation, mind, assets and religion. In literatüre they are called “zarûriyyât-ıhamse, mak?sıd-ıhamse, külliyyât-ı hams” meaning that the necessary five. It has been first held in the study of Gazzâlî (505/1111) that the law system has to protect five essentials, which are good, mind, generation, religion and life. Later Şâtıbî’nin (790/1388), Şah Veliyyullah ed-Dıhlevî (1176/1762) and Tâhir b. Âşûr (1394/1973) have added some value to the theory. It has been expressed that the zarûriyyât is containing these five essentials by some scholars. However there are some scholars who are adding some other essential principals. For instance, İbn Rüşd (595/1198) has added “justice” and Shah Veliyyullah ed-Dıhlevî has added “providing social security and social order” concepts to these five essentials. The reason that they have added these five essentials is to give solutions on the basis of the problems and the rights that are violated of their era. It has been proven that Prof. Necmettin Erbakan has been emphasizing these five essentials in the jurisdiction, legislation and in the executive system as well as he has been taking care of these essentials in his applications / practices as a statesman. In addition Erbakan has put a wide understanding that is covering all these rights on this topic that is studied by islamic scholars. “justice” “labor effort” and “right to contract” are the rights that are taken care but not written as specific articles by the Islamic scholars have been tried to protect as the essential rights by Prof. Erbakan. He founded his understanding of the concept of “right” on these issues because of being the most violated rights of these rights of his era. In this regard it can be said that Prof Erbakan has supported his ideas by the Islamic Thought before his era and he updated these rights accordingly the needs and the realities of new time period. Erbakan takes his essential principles under the title of “Right Understandings” According to Erbakan there are two types of “Right Understandings.” First; the “right understanding” that have been defensed by prophets. This understanding promotes “a new and livable World” without any discrimination on the basis of religion or race. These rights are valid for all human beings since their birth. This understanding will establish the peace order on the planet Earth. The aim of the prophets is to establish a peace order. The “Milli Görüş” movement also tries to establish this order as well. The work to establish these rights and order is called “Jihad.” The second understanding is the understanding of Firavuns. The reason of occupations and exploitation on the earth is this understanding. This understanding does not bring happiness and felicity to the humankind. The name of this order has called sinister. This understanding has been represented by Zionism today. Because of that they see themselves as the selected superior race and they see the rest of humankind is slave of themselves. The Table of “Understanding of Rights” of Necmettin Erbakan Correct Right Understanding. I) The Rights that are given to human beings from the birth. 1) Right to life 2) Right to protect honour, ancestor, purity. 3) Right to property 4) Right to protect mind 5) Right to live on behalf of beliefs a) Right to freedom of expression b) Right to education c) Right to assembly d) Right to belief e) Right to select law , Multi-law system II) Right to make agreements and contract by consent III) Rights because of justice IV) Right to protect manpower. Wrong Right Understanding 1) Power 2) Majority 3) Privilege 4) Benefit Erbakan has put his projects on the table in order to establish these rights firstly Turkey as well as worldwide. Because of the belief of to live as you believe in which is multi-law system, his political party Refah Party has been closured by the Turkish Constitutional Court. Erbakan’s policies on the behalf of his right understanding are; to make a better lifestyle of the Turkish civil servants, to update their salaries on 200 percent for the workers, to make 300 percent of rise of their salaries, to found the fund of poor to support poor people, to give enormous support to the farmers to produce more and qualified products, to abolish the article 163 of the Turkish Criminal Code, to oppose the imposition of Turkish as native language as well as to see Turkish as discriminatory language on Kurdish people in his famous speech in Bingol which is one of the Kurdish populated cities and to punish him because of that, to rise up against racism, to defense of the right to life of socialist youth who are those on death fasting, to oppose the tax system of the state and to express this enormous tax as unjust tax, to oppose the global interest system in banking system, to defense islamic Dinar against Dollar, to make the Cyprus Peace Operation, to oppose the NATO intervention on Iraq, to give a place to Iran on D-8 which is an Islamic union even though he was a Sunni muslim, to make an effort to bring Turkish soldiers who were held in Northern Iraq are the examples of applications of Milli Görüş Movement and Erbakan in the history. Necmettin Erbakan who is a machine professor is a very hard follower and supporter of Islamic Tradition. The basis of his ideas is consist of classical Islamic Doctrine. He got some lecture by the last term Ottoman Scholars during his youth era. It is clear that he got effected by Nakşibendi Cult in his life style. For instance he has been inspired by Gümüşhanevi dervish convent while he was putting the name of Gümüs Motor factory. He got a chance to know communism as well as capitalism closely during his PHD studies in Germany. Because of that he has determined the problems of the modern era clearly and has chosen to get into politics actively to promote solutions. In result, Erbakan is not a leader who is acting reflective against the facts. His movement is not a reactive movement but a reasonable and based on intellectual basis. He shared the essentials of his movement with public. He used a clear language. Because of that Milli Görüş movement is a movement that has a basis of a thesis. |
