An Analysis of Natural Law From the Perspective of Islamic Law

Abstract

In this article, first of all, the basic ideas put forward in the context of the natural law movement are given: that there is a legal order that is desired to be achieved alongside or above the law created by the state, that it is accepted as generally valid for all people and nations because it is a more perfect and higher law as opposed to all positive legal systems, that it consists of the sum of some high rules that find its validity in its own essence, that it is an inexhaustible source and control mechanism for positive law, and that the understanding of natural law is the pioneer of advances in the field of law. Then, starting with Heraclitus, Socrates, who was one of the pioneers of natural law with his defense of the concepts of morality, virtue and justice; Sophocles, who stated that the administrative commands were never powerful enough to override divine commands; Plato, who defended natural law by reflecting the distinction between the world of ideas and the world of senses, which is the basis of his philosophy, to the field of law; Aristotle, who saw natural law as a guide in the interpretation of positive law, Cicero, who stated that natural law covers all human beings, that law arises not from human will but from the nature of human beings and things, Grotius, who stated that the first basic principle of natural law is loyalty to the covenant, Pufendorf, who gave more place to god in natural law thought, and natural law thinkers of the eighteenth and nineteenth centuries, the historical course of natural law has been conveyed. After that, the basic ideas defended in the natural law approach are analyzed under five headings from the perspective of Islamic law. In the first heading, in the axis of different approaches to the source of law as human nature, the nature of things, the divine will, and the human intellect, it was argued that focusing on the activity of ijtihad on the human soul and characterizing it as a search for the ideal of justice in the human soul means taking an oppositional stance regarding the essence of the method of fiqh , It was dealt with by emphasizing that the intellect is not the absolute proof of law, that the activity of the intellect is not in the form of making judgments independently but in the form of discovering and revealing what exists in the nass , and that the source of law is explained by the divine will, not the divine intellect. In the second heading, the distinction between the law as it is and the law as it should be is discussed by stating that if there is the ijma of the ummah on a ruling, that ruling is ideal, that one should not search for a more ideal one, and that no ijtihadi ruling is accepted as the absolute, undisputed ruling of Islam. In the third heading, it is stated that the issue of al-husn and al-qubh is one of the ancient areas of dispute among the ulema , that the intellect's knowing what is hasen and producing binding knowledge in this regard will make it possible to characterize the intellect as an independent source of law, that it will not be possible to speak of a rule of law that finds its validity in its own substance as advocated in natural law in terms of the Ash'ari approach in Islamic law, and that it is not possible to speak of rules of law that find their validity in their own substance, in terms of the Maturidi approach, the approach of Mutazila, which states that good and evil exist essentially in acts and things, that the intellect can know good and evil and that this is binding knowledge, and the approach defended in natural law overlap, and that it is not possible to limit the divine will with any principle or rule in terms of Sunni theology and Islamic law, and the high legal rules that find their validity in their own substance are evaluated. In the fourth heading, it is stated that some factors that are effective in the process of both the formulation and implementation of rules create inevitable areas of differentiation between justice and law, and that it is not possible to see one jurisprudence as superior to the other on a theoretical level, nor is it possible to see the level of justice achieved by any of these jurisprudences as more advanced than that achieved by the other. The fifth chapter analyzes the view of natural law as the criterion of legal value and the pioneer of progress by stating that the ijtihad understanding and freedom of jurisprudence is the pioneer of progress in terms of Islamic law. The study was completed with the presentation of the results obtained.