Filling the legal gap in Turkish and Islamic law comparatively

The existence of a rapid and continuous change in social life brings with it some problems. In order for these problems to be resolved and justice and security to be ensured, the law must be dynamic in that proportion. However, in law, it is not possible for every event to be foreseen and the rule of law to be formed accordingly. For this reason, we encounter some situations that we call gaps in legal systems. The gap in the law must be filled somehow and the disputes must be ended. This duty rests with the judge who carries out the judicial activity. In Turkish Law, the judge's filling of gaps is made dependent on a number of conditions and situations. If he cannot find a rule to be applied to the dispute, both in the law and between the customary law rule, the judge will act as a legislator and finalize the dispute. In Islamic law, the mujtahid is expected to refer to the primary sources at the first stage. Therefore, the mujtahid, who cannot find a rule that he can apply directly from the Qur'an and Sunnah, must come up with an applicable rule by relying on primary and secondary sources. This activity of the mujtahid is an effort to fill the gap in the law. Our study basically consists of three parts. In the first part, it is explained that the judge fills this gap in case of legal gap in Turkish law. The concept of emptiness, the customary law and its rule, the judicial activities of the judge and the characteristics of the created legal rules are explained. In the second part, the legal vacuum from the perspective of Islamic Law has been tried to be explained through the concept of ijtihad. Here, the tools of ijtihad are emphasized. Finally, in the third chapter, the first two chapters were compared methodologically.