Usûlcülere göre ruhsat teorisi ve İslâm muâmelât hukukuna etkisi / The theory of rukhṣa (exemption) among Islamic jurists and its impact on commercial fiqh

This dissertation takes up the topic of exemption, considering it a part of Shari'a rulings which is based on removing hardship from the worshipers and considering their excuses. The dissertation takes the topic of exemption from the juristic and Islamic legal perspectives. The dissertation is divided into three sections: In the first section, there is the presentation of the overall theory related to exemption among Islamic jurists. Its material was gathered from the scattered views mentioned by Islamic jurists in various writings. The theory consisted of defining exemption among the Islamic jurists, the difference between exemption and terms with closer meanings like Istiḥsān (juristic discretion), Ibāḥa (permissibility) and Takhṣīṣ (specification), the approaches of Islamic jurists in dividing them, determining its status in the Shari'ah ruling, and highlight its ruling. Then, the discussion moved forward to Dalīl (proof), which endorses a case of exemption whether it was from the agreed-upon proofs or theoretically disputed, followed by a discussion on 'udhur (excuse) which could be the reason for adopting exemption, it was followed by a discussion on Mukallaf (a person subjected to religious obligation) adopting by the exemption, and it was followed by the discussion on the criteria which should be fulfilled while adopting exemption and then discussion on Tarjīḥ (the rule of preference) between taking upon 'azīmah (observing the initial ruling based on comprehensive general principle without considering exemption) or Rukhṣa. The second part of the thesis was dedicated to the discussion related to the application of exemption theory in the schools of Fiqh (madhāhib fiqhiyyah) and specifically in the financial transactions. It discussed the application of the theory in the matters of sale contracts like those sale contracts which were made permissible against the base principle considering the need attached to it like Salam and Istiṣnā', then discussion on the application of the theory of exemption in contracts which were made permissible against qiyās (juristic analogy) like Ijārah (leasing), Ju'āla (reward-based work), Muḍāraba (silent partnership), Musāqā (crop sharing), Muzār'a (land sharing), Qarḍ (loan), Ḥawāla (assignment) and Shuf'a (preemption). The basis of these contracts being a form of exemption was highlighted and its impact on the branches of Islamic fiqh. The third party had a discussion on the application of exemption theory in one of the most popular issues of contemporary financial transactions, i.e., borrowing on interest when there is a need, requesting for a letter of guarantee against a fee, depositing funds in conventional banks, using credit cards, conventional insurance. The original ruling of these transactions was highlighted, and the extent to which the need would be considered as influential resulting in giving a ruling of its permissibility and the criteria of exemption upon a preponderance (Rujḥān) of the view considering it.