Hanefî Mezhebinde Usûl Kurallarının Fürûda Uygulanışı: Babertî’nin Darp Yoluyla Ta‘zîrin Üst Sınırı Hakkındaki Görüşünün Tahlili
Authors: Çöklü Ramazan 
Published: September 2023

Ekmal al-Dīn al-Babertī (d. 786/1384) from Bayburt, one of the provinces around Artvin, is one of the muhaqqīq scholars who left his mark on his era with his works. In fiqh, through his teacher al-Qāqī (d. 749/1348), he was part of a lineage extending to Abū Yūsuf (d. 182/798), one of the founders of the Hanafī madhhab. Babertī spent a significant part of his life in Egypt during the Mamluk period and trained many students, including scholars such as Mullā Fanārī (d. 834/1431) and Sayyid Sharīf al-Jurjānī (d. 816/1413), who were considered authorities in their time. He was a versatile scholar who composed valuable works in various scientific disciplines such as fiqh, hadith, kalām, and rhetoric. One of his works in the field of fiqh is al-'Ināya, a commentary on al-Hidāya by Burhān al-Dīn al-Mergīnānī (d. 593/1197). In the aforementioned work, he draws attention with his detailed treatment of the issues. One of these topics is ta'zīr. Ta'zīr, which is the general name of the punishments other than the punishments of qisas and hadd and left to the discretion of the ruler, is applied in Islamic law in various forms such as beating, exile, and rebuke. In this presentation, which is limited in scope, al-Babertī's opinion on the upper limit of the punishment of beating and ta'zīr is analyzed based on the method of Tahrīj al-furū' 'ala al-usūl, that is, within the framework of the usul-furūl relationship. He adopted the preferred view of the Hanafī madhhab on this issue and argued that the offender could be hit with a maximum of 39 strokes of the cane in ta'zīr by beating. His evidence in this regard is the hadith "Whoever exceeds the limit in punishments other than the hadd punishment is considered one of the extremists/ مَنْ بَلَغَ حَدًّا فِي غَيْرِ حَدّ فَهُوَ مِنَ المُعْتَدِين". There has been a debate among the scholars as to which of the two punishments, free and slave, is meant by the hadith in hadd punishment. If the hadd punishment of a free person is taken as a basis, the offender can be beaten with a maximum of 79 strokes of the cane. This is because, according to the Hanafi madhhab, the maximum number of strokes that can be inflicted on a free person is 80 strokes. If 79 strokes are given to the offender, the ta'zīr punishment does not reach the full amount of hadd. In the case of a slave, the maximum number of strokes is 39 strokes. This is because, according to the Hanafi school of thought, the maximum number of strokes that can be inflicted on a slave in a full hadd punishment is 40 strokes. Baberṭī argued that the term "hadd" in the hadīth is indefinite and expresses ummūm, and therefore includes both the free person and the slave, and argued that the upper limit of beating and ta'zīr would be determined according to the hadd of a slave. Accordingly, in al-Baberṭī's fiqh thought, the head of state can strike the offender with a maximum of 39 strokes of the cane as a punishment of ta'zīr. Although there are various studies on the subject of ta'zīr in the literature, we have not been able to identify a study that deals with the issues in the relationship between usul and furu. Therefore, we aimed to conduct a research that would fill this gap to some extent and set an example for today's researchers. This approach is compatible with the view of the Hanafi school on the subject.