A comparative study of qawaid in Majalla with Turkish law

This study examines 100 qawaid (general principles) of Majalla in comparison with positive Turkish law. It aims to find out the similarities and differences between Islâmic law and Turkish law in the light of these general principles. In this thesis, it has been underlined that these qawaid were mainly transferred from the book called Majami al-haqaiq written by Abu Said el-Hadimi (d. 1176/1762) who copied them from al-Ashbah wa al-Nazair of Ibn Nujaim (d. 970/1563) with some new additions. However, some qawaid were altered or shortened in order to make them suitable to a code of law. It has been seen that although Majalla is based on Hanafi law, these general principles are practicable by different legal systems. It has been revealed that 90% of these principles are still in practice in positive Turkish law. However, there are differences in the remaining 10% of these principles. It has been underlined that Islamic and Turkish laws both adopted the principles zarurat (necessity) and needs; custom is one of the basis of law and the defendant gets the benefit of doubt in both laws. However, it has been observed that both laws have differences in procedure law. While Islamic law adopts the witness system as the basis of procedure law, Turkish criminal law sees it as the discretionary evidence. This study has shown that although the legal systems have different approaches, they have similarities in many aspects. Key words: Islamic law, Majalla, Turkish law, Qaida