Discretionary power of the judge in Islamic law

Law regulates the social life of people living collectively. It is a branch of science that resolves disputes between individuals and carries out this function through judges and the power of the state. It is an accepted fact that laws do not cover every possible situation. Judges are obligated to reach conclusions on the cases they encounter. However, not every dispute is addressed by a specific provision in the law. In this case, the judge will fill the internal legal gap in accordance with principles of justice and equity, and in the presence of an external legal gap, will act as a legislator to resolve the dispute. This study aims to reveal the existence and nature of judicial discretion, a concept of modern law, within Islamic law. In addition to classical sources in our Islamic heritage, such as fiqh, hadīth, and tafsīr, the study also draws upon modern legal texts and sharīʿah court records where applications are mentioned. The introductory section of the three-part study addresses the significance of the topic, the sources, and a review of previous works. In the first section, following an examination of judicial discretion and related concepts, the historical process is explained, concluding the section. The second section addresses the litigation process in which disputes are reviewed. Here, judicial discretion granted to the judge at this stage by Islamic law is analyzed comparatively with Turkish law, referencing inter-school (madhhab) differences wherever possible. The third section examines judicial discretion in criminal and family law according to this methodology. Additionally, examples from sharīʿah court records are provided to present a comparative study. This is because the existence of judicial discretion is substantiated by the practices observed during litigation. Ultimately, the study seeks to demonstrate that the judicial discretion present in modern law actually exists more comprehensively within Islamic law.