Concept of siyāsa al-shar'iyya in the Hanafī school

In this thesis, the nature of the concept of siyāsa al-shar'iyya is attempted to be determined through the practice of the Hanafī school of thought. The primary aim is to identify the meaning, scope, and the factors that constitute the concept of siyāsa al-shar'iyya, which is often used in its simple form as siyaset in the Hanafī tradition, through examples of its usage in Hanafī texts. The study focuses on the position of politics in the furu' al-fiqh (jurisprudential branches), the contexts in which it is used, the process of its conceptualization, and whether it has undergone any changes in meaning. Based on these considerations, the thesis seeks to establish the understanding of siyāsa al-shar'iyya in the Hanafī furu' tradition. The concept has been determined to typically refer to the interpretation of specific, shadh (irregular), or generally ahad (single) narrations that contradict the primary views of the Hanafī school, and to understanding their aspects that conflict with the systematic structure of the Hanafī madhhab. Specifically, the practices of the Prophet Muhammad and the Rightly Guided Caliphs that were not accepted by the Hanafī school are included within the legitimate framework of siyāsa al-shar'iyya. The concept of siyāsa al-shar'iyya, which began to be used synonymously with the concept of ta'zīr (discretionary punishment) at a certain point, was predominantly employed in the context of criminal law, referring to the political authority's "imposition of punishment ex officio" and the "aggravation of existing penalties." In some cases, the concept of siyaset has also been understood as referring to "ijtihads" (independent juristic opinions) issued by the ruler, based on the "discretionary power of the Imam," regarding certain penalties. When explaining why narrations contrary to the Hanafī school are not applied, it is stated that the practices in these narrations were the result of ijtihad, and this is expressed using the concept of siyāsa. Jurists who provided definitions of the concept, while considering this specific usage, have made more narrowly framed definitions. Undoubtedly, a cumulative reading of the material reveals that the concept has predominantly been confined to the field of criminal law, where it is often considered equivalent to the concept of ta'zīr. However, the extent to which the term siyaset and ta'zīr can be regarded as identical remains a debated issue. This is because, when examining the practices referred to as siyaset, the fundamental principle of ta'zīr -which is that it should not lead to the application of the hadd (fixed punishment)- does not seem to apply in the same way.