Hanefî Mezhebinde Teaddî ve Taammüd Kavramının Kullanımı ve Bunun Çağdaş İslam Hukuku Çalışmalarına Yansıması
The Use of the Ta‘addī and Ta‘ammud Concept in the Ḥanafī School and Its Reflection On Contemporary Islamic Law Studies

Summary/Abstract: The concept of “breach of obligation” and “unlawfulness” in the Turkish Law of Obli-gations is expressed in the classical sources of Islamic law with the concept of ta‘addī. However, this concept in Islamic law has a meaningful width to cover the element of “breach of obligation” and “fault” in the responsibilities arising from the contract in the Turkish Law of Obligations; and in unfair acts, the element of “unlawfulness” and “fault”.While explaining how to compensate for direct causes (mubāshara) and indirect causes (tasabbub) in classical Ḥanafī sources, what we usually encounter here and which determines the responsibility is the concept of ta‘addī. However, the word ta‘addī, which is one of the most basic concepts of compensation (liability) law has not been completely separated from the term ta‘ammud in classical Islamic law works. Since the concept of ta‘addī and ta‘ammud were sometimes used interchangeably. For example, Ibn Nujaym (d. 970/1562) and Abū Sa‘īd al-Khādimī (d. 1176/1762) preferred the concept of ta‘ammud instead of ta‘addī while expressing the rules regarding mubāshara and tasabbub. This situation is also regulated in the articles 92 and 93 of Majalla. The Ottoman scholars Mawlānā Meḥmed Izmīrī (d. 1165/1751) and Kirkagacī (d. 1287/1870) and one of the contemporary Islamic jurists Muṣṭafā Aḥmad ez-Zarqā state that the concept of ta‘ammud is not correct here; and one of the contemporary researchers, Muhammed Ahmad Siraj explains that it is a mistake to prefer the con-cept of “ta‘ammud” in the relevant articles of Majalla. However, it is not possible to say that Majalla writers made a mistake here, as Siraj said. Because these expressions, which became a rule in Majalla, were taken from Khādimī’s work titled Majāmi‘ al-Haqā’iq and Ibn Nujaym’s al-Aṣbāḥ wa al-Naẓā’ir. Although one of these articles was taken from the mentioned work of Khādimī and the other article from Ibn Nujaym, both jurists convey the understanding existing in the Ḥanafī school. But, while Ibn Nujaym and Khādimī conveyed this, they preferred the concept of muta‘ammid instead of muta‘addī. The examples given by both Ibn Nujaym and Khādimī and Majalla wri-ters and their explanations show that the concept of ta‘ammud in these places is not only in the meaning of intent and it is used in the meaning of ta‘addī.This issue, which is related to the terminological content of the ta‘addī concept, has caused confusion in Islamic law written in Turkish on compensation law. As a matter of fact, it is seen that the word ta‘addī is reduced to the concept of “unlawfulness” which is one of the conditions of tort liability in the Turkish Law of Obligations and used in a way that corresponds to this in some of these studies. Even in some of these studies, it is stated that there is no difference between the concept of unlawfulness in the law of obligations and the word ta‘addī in Islamic law. However, using the term ta‘addī in the classical fiqh literature in the same sense with this concept is problema-tic. Because the terminological content of the term ta‘addī and the content of the unlawfulness in the Law of Obligations do not exactly match, and the concept of ta‘addī has a broader meaning beyond the unlawfulness.Although the concept of ta‘addī is used in these studies in a way that corresponds to the concept of unlawfulness, the case studies used in the classical sources of Ḥanafī school show that this concept also includes the meanings of intent (ta‘ammud) and neglect (taksir). Therefore, the word ta‘addī should be seen as a top concept that inclu-des both the concepts of ta‘ammud and taksir. However, this situation does not mean that the word ta‘addī always includes the concepts of ta‘ammud and taksir and meets both at the same time. Because ta‘addī in an event that requires responsibility for compensation sometimes results from the intended act of the person and sometimes from the negligent act. In other words, the concepts of ta‘ammud and taksir in the classical Ḥanafī sources cause the action to gain the feature of being unlawful rather than being an element or condition that creates the responsibility for compensation in unfair acts. Whereas, fault (intent and negligence), which is one of the conditions of unfair act in the Law of Obligations, appears as a separate element; it is regarded as a concept that causes the action to gain the feature of being ta‘addī in the classical Ḥanafī sources. Accordingly, the concept of ta‘addī covers both the unlawfulness as well as the intent and negligence, in other words, both the elements of the unlawfulness and the fault in the Law of Obligations.As it is seen, the concept of ta‘addī in the classical Ḥanafī sources cannot be completely different from the concepts of “ta‘ammud” and “taksir (negligence)”. So, these concepts are sometimes used interchangeably due to the close relationship between them. As in the books of Khādimī and Ibn Nujaym, the use of the concept of ta‘ammud instead of ta‘addī in some sources is therefore. However, the concept of ta‘addī separa-tes from ta‘ammud and taksir concepts and emerges as a unique concept in contemporary Arabic literature. As a matter of fact, the concept of ta‘ammud and taksir started to be studied under the term “al-khata'” in these new studies. In other words, the concept of “fault” in the Turkish Law of Obligations has been used to correspond to the term of “al-khata'” in contemporary Arabic literature. In this case, the element of ta‘addī in contemporary Islamic law literature, corresponds to the concept of “unlawfulness” in the Turkish Law of Obligations, and the element of “al-khata'” to the concept of “fault”.Similar to this process about the conceptual development of the word ta‘addī in Islamic law, has been experienced in Roman law before. As a matter of fact, the concept of unlawfulness (iniuria) was seen as a top concept, including the word fault (culpa) in the beginning periods. But the concept of fault was adopted as a distinctive term apart from the concept of unlawfulness in the Justinianus period.As a result, the concept of ta‘addī, which is used in the classical Ḥanafī sources to cover both the concepts of “ta‘ammud” and “taksir”, is a top concept that can include both the element of “unlawfulness” and “fault” in the Turkish Law of Obligations. For this reason, the elements of “unlawfulness” and “fault”, which are the conditions of the unfair act of responsibility, should be handled under the title of “ta‘addī” in Islamic law studies or it should not be forgotten that their use in classical sources is not exactly like this.

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