Mecelle Şerhi, 4 Cilt

Gül Neşriyat tarafından yayınlanan Mecelle Şerhi  (  Şerhu Meceleti’l-Ahkam ) kitabını incelemektesiniz.
Mecelle Şerhi  (  Şerhu Meceleti’l-Ahkam ) kitabı hakkında yorumları oku yup kitabın konusu, özeti, fiyatı, satış şartları hakkında bilgiyi geniş bir şekilde edinebilirsiniz.
 
Yaratan Rabbinin adıyla oku . O, insanı " alak " dan yarattı. Oku, Senin Rabbin en cömert olandır. Alak 1-2


 
             Son İslam devleti Osmanlıyı idare eden  İslam Kanunları


Ali Haydar Efendinin Şerhi . Acaba Bu meselede İslam Hukuku ne diyor diyenlerin aradığı kitap. Her hukuk severin ve hukukçunun kütüphanesinde mutlaka bulunması gerekli bir eser... Biz çalıştık bu eseri meydana getirdik... Şimdi ilgililer karar versin...
  
 
     Mecelle Hey'etinden Tanzîm olunan Mazbatanın Suretidir
 
Muhât-ı ilm-i âlî-i vekâlet-penâhîleri buyrulduğu üzre ilm-i fıkhın emr-i dünyâya ta'alluk eden ciheti, münâkehât ve mu'âmelât ve ukûbât kısımlarına münkasim olduğu gibi milel-i mütemeddinenin kavânî-i esâsiyesi dahi bu üç kısma taksim ve mu'âmelât kısmı "Kânûn-ı Medenî" diye tevsîm olunur. Fakat bu asırlarda mu'âmelât-ı ticariye pek ziyâde tevessü' eylemiş olduğundan, poliçe ve iflâs gibi pek çok hususlarda kânûn-ı aslîden istisna olunmuş ve bu mesâ'il-i istisnâ'iyeyi hâvî başkaca bir de "Ticâret Kanunnâmesi" tanzîm kılınmışdır ki, husûsât-ı ticâriyede ma'mûlün-bih olup cihât-ı sâ'irede yine kânûn-ı medenîye mürâce'at kılınır. Meselâ, bir mahkeme-i ticâretde ticâret kânunu hükmünce rü'yet olunan bir da'vânın rehn, kefgâlet ve vekâlet gibi bazı husûsât-ı müteferri'asında kânûn-ı aslîye mürâce'at olunuyor. Cerâ'imden neş'et eden hukük-ıâdiye da'vâlarında dahi bu minval üzre mu'âmele ediliyor.

Kânûn-ı medenîye mukabil Devlet-i aliyyede kadîmen ve hâdisen pek çok kavânîn ve nizâmât yapılmışdır. Eğer ki, bunlar kâffe-i mu'âmelâtın fasi ve tesviyesine kâfî değil ise de ilm-i fıkhın mu'âmelât kısmı bu husûsda olan ihtiyâcâta kâfî ve vâfîdir. De'âvînin şer' ve kânuna havâlesince bazı müşkilât görülmekde ise de, Temyîz-i hukuk meclisleri hükkâmının taht-ı riyasetlerinde bulunarak umûr-ışer'iyyeyi şer'an rü'yet itdikleri gibi mecâlis-i temyîzde nizâmen rü'yet olunan maddeler dahi onların ma'rifetiyle fasi ve bu misilli müşkiller hallolunmaktadır. Şu kadar ki, kavânîn ve nizâmât-ı mülkiyenin asıl ve merci'i ilm-i fıkh olarak nizâmen rü'yet olunan mevâddın dahi nice husûsât-ı müteferri'ası, mesâ'il-i fıkhiyyeye tatbîk ile fasi ü hasm olunagelip, mecâlis-i temyîz a'zâsı ise mesâ'il-i fıkhiyyeye muttali' olmadıklarından, gûyâ hâkim efendiler kavânîn ve nizâmât-ı mevzû'anın hâricinde olarak mürâfe'âtı istedikleri kalıba döküyorlar, nazariyle bakıp bir takım sû'izanlara zehâb ile güft-gûya bâ'is oluyorlar.
 
Devlet-i aliyyenin ticâret mahkemelerinde dahi ticâret kânûnnâme-i hümâyûnu düstûrü'l-amel olup, da'vânın ticârete ta'alluk etmeyen husûsât-ı müteferri'asında azîm müşkilât çekilmektedir. Şöyle ki, Avrupa kânunlarına mürâce'at olunsa, çünkü bunlar bâ-irâde-i seniyye mevzû'-ı kavânîn olmadığından mehâkim-i Devlet-i aliyyede medâr-ı hüküm olamaz. Şer'a havale olundukda dahi mehâkim-i şer'iyye o misilli husûsât-ı müteferri'ada mürâfe'ayı esâsından tutmağa mecbur olur. Halbuki, iki mahkemenin usûl-i muhakemesi esasen muhtelif olduğundan bi't-tab' işde çatallık peyda olduğu cihetle bu misilli husûsâtda mehâkim-i ticâretden mehâkim-i şer'iyyeye mürâce'at edilemiyor. Mehâkim-i ticâret a'zâsı kütüb-i fıkhîyeye intisâb hususunda, onlar dahi mecâlis-i temyîz a'zâsıyle hem-hâldir.
 
İlm-i fıkıh ise bir bahr-ı bî-pâyân olup, bundan dürer-i mesâ'il-i lâzimeyi istinbât ile hall-i mes'ele idebilmek haylîden hayli maharet ve melekeye mevküfdur. Ale'l-husûs mezheb-i Hanefîüzre tabekât-ı mütefâvitede pek çok müctehidler gelip, ihtilâfât-ı kesîre vuku bulmuş ve Fıkh-ı Hanefî, fıkh-ıŞâf'î gibi tenkîh edilemeyip, pek müteşa'ib ve müteşettit olmuştur. İşte bunca akvâl-i mütehâlife içinde kavl-i sahîhi temyîz ile havadisin ona tatbîkinde azîm usret vardır. Kaldı ki, tebeddül-i a'sâr ile örf ve âdete mübtenî olan mesâ'il-i fıkhiyye dahi tebeddül eder. Meselâ, kudemâ-yı fukahâ indinde, iştira olunacak hanenin bir odasını görmek kâfîdir. Müte'ahhirîn indinde her odasını görmek lâzımdır. Bu ise an-delîlin bir ihtilâf olmayıp, belki inşâ'ât hakkında örf ve âdetin ihtilâfından neş'et etmiştir ki, mu­kaddema hanelerin her odası bir tarz üzre yapılageldiğinden bir odasını görmek, sâ'irini görmekten muğnî imiş. Mü'ahharen hanelerin odaları muhtelif yapılmak âdet olduğundan her odasını görmek lâzım gelmiştir. Hakîkat-i hâlde lâzım olan keyfiyyet ise maksad-ışirâya göre bir ilm-i kâfî hâsıl etmekten ibaret olmasıyla asl-ı kâ'ide-i şer'iyye teğayyür itmeyip, fakat bunun havadise emr-i tatbîki, tebeddül-i ahvâl zaman ile tebeddül ediyor. Bu misilli ihtilâf-ı zemânî ile ihtilâf-ı burhânî beynini fark ve temyîz etmek dahi hayli dikkate muhtaçtır. Mesâ'il-i fıkhiyyeyi ihata ile ğavrına ıttıla' ise pek güçdür ve bir aralık mesâ'il-i fıkh-ı Hanefîyi cem' ve ihata etmek üzre asrın fukahâ ve fuzalâsı cem' edilerek Taterhânîye?)ve Fetevâ-yı Cihângîrîye gibi kitâblar te'lîfine himmet olunmuş ise de, yine bi'l-cümle furû'-ı fıkhiyye ve ihtilâfât-ı mezhebiyye asr ve ihata edilememişdir.
 
Fi'l-vâki' kütüb-i fetâvâ, havadisin kavâ'id-i fıkhiyyeye tatbikine dâ'ir verilmiş olan fetvaları hâvî mü'ellefât demek olup, halbuki, bunca asırlardan beri sâdât-ı Hanefiyye tarafından yerilmiş fetâvânın cem' ve ihatası ne kadar düşvâr olduğu muhtâc-ı beyân değildir. Binâenaleyh (İbn-i Nuceym) bir takım kavâ'id ve mesâ'il-i külliyyeyi cem' ederek, bunların tahtında furû'-ı fıkhıalâ-veçhi'l-ihâta dere eylemek yolunda bir güzel çığır açmış ise de, ondan sonraki asırların âlim ve fakîh yetiştirmek yolunda evvelki semâhati görülemediğinden onun eserine iktifa ile açmış olduğu çığırışâh-ı râh edebilecek zâtlar zuhûruyla bu yolda bezl-i cehd eylemelerine müsâ'id olmamışdır. Şimdi ise her tarafda ulûm-ışer'iyyede maharetli zevata nedret geldiğinden mehâkim-i nizâmiyyede lede'l-îcâb kütüb-i fıkhiyyeye mürâce'atla hall-i şüphe edebilecek a'zâ bulundurmak şöyle dursun, Memâlik-i mahrûsede kâ'in bu kadar mehâkim-i şer'iyyeye kâfî kudât bulmak müşkil olmuştur.

Binâ'en-alâ-zâlik ihtilâfâttan ârî ve yalnız akvâl-i muhtâreyi hâvî olmak üzre mu'âmelât-ı fıkha dâ'ir sehlü'l-me'haz bir kitâb yapılsa, herkes kolaylıkla mütâle'a ederek mu'âmelâtını ona tatbik ve böyle mazbut bir kitâb olduğu hâlde Nâ'ib efendilere azîm fâ'idesi olacağı gibi mecâlis-i nizamiye a'zâsıyle emr-i idarede bulunan me'mûrîn dahi bi'l-mütâle'a mesâ'il-i şer'iyyeye intisâb ile lede'l-îcâb işlerini vüs'leri mertebe şer'-i şerîfe tevfîk ederler. Ve hem mehâkim-i şer'iyyede mu'teber ve mer'î ve hem de, mecâlis-i nizamiyede hukuk da'vâları için kânun vaz'ından müstağnî olur, mütâle'asına mebnîöyle bir eser-i celîlin vücûda gelmesi hayli vakitten beri arzu olunur bir keyfiyyet olup, hattâ bunun için Meclis-i Tanzîmât Dâiresi'nde bir cem'iyyet-i ilmiyye teşkîl edilmiş ve haylice mesâ'il yazılmış iken hayyiz-i fîle gelemeyip, bu dahi (El-umûru merhûnetün bi-evkâtihâ) hükmünce te'sîsi ehemm olan bir çok mevâdd-ı hayriyye gibi mağbût-ı a'sâr olan asr-ı mehâsin-hasr-ı hümâyûna kalmışdır.

Muvaffakiyyet-i celîle-i Hazreti Pâdişâhî, semere-i feyz-behresi olarak müşâhede-i ayn-ı iftihar olan bunca âsâr-ı hasene sırasında bu dahi husule gelmek üzre ilm-i fıkıhdan asrın ihtiyâcâtına göre rûz-merre zuhura gelen mu'âmelâtın tatbîkine kâfî olabilecek öyle bir eser-i hayrın vücûda getirilmesi emr-i ehemmi âcizlerine havale buyrulmuş olduğundan, ber-mûceb-i irâde-i aliyye Dîvân-ı Ahkâm-ı Adliyye Dâiresi'nde bi'l-ietimâ' fıkhın mu'âmelât kısmından kesîrü'l-vukû' ve mu'âmelât-ı asra göre bedîhîyü'l-lüzûm olan mevâdd hakkında sâdât-ı Hanefiyyenin akvâl-i mu'teberesi cem' edilerek müte'addid kitâblara taksîm ve (Ahkâm-ı Adliyye) ismiyle tevsîm olunmak üzre bir Mecelle tertibine bi'l-ibtidâr, mukaddimesiyle Kitâb-ı evveli hitâm bularak bir nüshası zât-ı hakâyik-âyât-ı hazreti Fetvâ-penâhîye verildiği gibi ilm-i fıkıhda maharet ve ma'lûmât-ı kâfiyesi olan diğer bazı zevât-ı fihâme dahi birer nüshası bi'l-i'tâ olunan ihtârât üzerine ta'dîlât-ı lâzime icra olundukdan sonra tebeyyüz ile huzûr-ı hakâyık-zuhûr-ı Vekâlet-penâhîlerine arz olundu. Bunun lisân-arabîye nakl ve tercümesi der-dest olduğu gibi diğer kitâblar dahi cem' ve te'lîf olunmak üzredir.

Bi'l-mütâle'a muhât-ı ilm-i âlî buyrulur ki, mukaddimenin ikinci makalesi (İbn-i Nuceym) ile onun mesleğine sâlik olan fukahânın cem' eyledikleri kavâ'id-i fıkhiyye olup, hükkâm-ışer' bir nakl-i sarîh bulmadıkça yalnız bunlarla hükmedemez.' Lâkin mesâ'il-i fıkhiyyenin inzibatına küllî fâ'ideleri olarak ) Tatarhânfye bir cem'iyyetin te'lîf-gerdesi değildir, bir zâtın eseridir. Amma Fetâvâ-yı Cihângîriyye denilen Fetâvâ-yı Hindiyye on zâtdan mürekkeb bir cem'iyyetin eseridir. [Şârih]

                                                         
erbâb-ı mütâle'a mesâ'ili edillesiyle zabt etmiş olurlar. Ve me'mûrîn-i sâ'ireye her husûsda merci' olabilir ve bunlarla bir âdem mu'âmelâtını mehmâ-emken şer'a tevfîk ve takrîb edebilir. Binâenaleyh kitâb yahut bâb ünvânıyle yazılmayıp, mukaddimeye dere olunmuştur. Kütüb-i fıkhiyyede ekseriya mesâ'il ile mebâdî mehlût olarak zikrolunmuş ise de, bu Mecellede her kitaba müte'allik olan ıstılâhât, ol kitabın mukaddimesi olmak üzre zikrolunarak mesâ'il sâdece tertîb üzre yazılıp, fakat bu mesâ'il-i esâsiyyeyi îzâh zımnında misâl olarak kütüb-i fetâvâdan bir hayli mesâ'il dere ve ilâve olunmuşdur.

Fî zamâninâ cereyan eden ahz ü i'tâ ekseriya bazışerâ'ite merbut olup, Mezheb-i Hanefî'de ise sulb-i akidde der-meyân olunan envâ'-ışerâ'itin ekserisi bey'i müfsid olduğu cihetle Kitâbü'l-büyû'un en mühim mebhasi (bey' bi'ş-şart) faslı olarak cem'iyyet-i âcizânemizce pek çok bahs ve münazarayı mûcib olduğundan, mübâhesât-ı cariyenin halâsı ber-vech-i âtîîrâd olunmak münâsib görülmüşdür.

(Bey' bi'ş-şart) hakkında ekser-i müetehidînin akvâli yekdiğere muhâlifdir. Mezheb-i Mâlikî'de müddet-i cüz'iyye için ve Mezheb-i Hanbelî'de ale'l-ıtlâk bayi' kendisi için mebî'de menfa'at-i mahsûsa şart edebilir. Lâkin bâyi'de bu salâhiyet olup da, müşteri tarafında olmaması re'y ve kıyâsı muhalif görünür. İmâm-ı A'zam (rahmetu'llâhi aleyh) hazretleriyle hem-asır olup da, mü'ehhiren etbâ'ı münkariz olan müctehidlerden (İbn-i Ebî Leylâ) ile (İbn-i Şibrime) (rahmetu'llâhi aleyhimâ) hazreteyni dahi bu husûsda yekdiğere zıdd-ı tâmm olarak birer re'yde bulunmuşlardır. Şöyle ki, İbn-i Ebî Leylâ indinde ale'l-umûm bey' ve şart fâsid, İbn-i Şibrime indinde ale'l-ıtlâk hem bey', hem de şart câ'izdir.

Mezheb-i İbn-i Ebî Leylâ: "El-müslimûne inde şurûtihim" Hadîs-i şerîfine mübâyin görünür. İbn-i Şibrime mezhebi, bu hadîs-i şerîfe tamâmıyle muvafık isede, bayi' ve müşteri icrası câ'iz ve kabil olmayan şartlar darmiyân edebilip, şarta ri'âyet ise bi-kaderi'l-imkân olmak fukahâ indinde müsellemâtdan olmasıyle şarta ri'âyet meselesi tahsîs ve istisna kabul eder bir kâ'idedir. Binâ'en-alâ-zâlik, Mezheb-i Hanefî'de bir tarîk-i mütevassıt ittihâz olunarak, bey'in şerâ'iti (câ'iz) ve (müfsid) ve (lağv) diye üç kısma taksîm olunmuştur. Şöyle ki, akd-i bey'in muktezâsından olmayıp, yahut muktezâ-yı akd bey'i te'yîd etmeyip di ehad-i tarafeyne nâfi'olan şart-ı müfsid ve ona mu'allak olan bey', fâsid olur. Ve bir tarafa nef'i olmayan şartla bey' sahîh ve şart lağvdır. Zîrâ bey' üşirâdan maksat temlîk ve temellük hususu, yâni bilâ-mâni' ve müzâhim müşterinin mebî'a ve bâyi'in semene mâlik olması keyfiyyetidir. Halbuki, bir tarafa nâfi' olan şartın icrasını ol tarafa tâlib ve taraf-ı ahar ondan hârib olarak münâza'aya mü'eddî olabilir. Bu surette ise akd-i bey' tamam olmamış demek olur. Fakat örf ve âdet münâza'ayı kâtı' olduğundan ale'l-ıtlâk şart-ı müte'âref ile bey' tecvîz olunmuştur.
 
Mu'âmelât-ı ticariye ber-vech-i meşrûh zâten müstesna bir hâlde olup, esnafın ekserîsinde dahi birer mu'âmele-i müte'ârife takarrür ettiğine ve örf-i târî dahi mu'teber olduğuna nazaran fesadı mevzû'-ı bahs olacak yalnız bir takım mütferrik ve müteşettit alış veriş edenlerin hâriç ez-örf ve âdet ettikleri şartlar kalıp, bunların dahi çendân-ı diğeri ve bahis götürür yeri olmadığından mu'âmelât-ı asrın teysîri içün Mezheb-i Hanefiyye'nin hâricinde olarak İbn-i Şibrime Mezhebi'nin ihtiyarı münâsib görülmeyip, sâ'ir fasıllarda olduğu gibi Bâb-ı evvelin dördüncü faslında dahi Mezheb-i Hanefîüzre bey'i müfsid olmayan şartlar beyânıyle iktifa olunmuştur.
 
El-hâsıl bu Mecelleöe Mezheb-i Hanefîyye'nin hâricine çıkılmayıp, mevâdd-ı münderecesinin ekseri el-hâletü hâzihî Fetvâhâne'de mu'teber ve ma'mûlün-bih olduğu cihetle, bunlar hakkında bahse lüzum görülmez. Fakat yine fukahâ-yı Hanefiyye'den bazı fuhûl-i e'immenin akvâl-i mu'teberesi nâsa erfak ve maslahat-ı asra evfak olmak hasebiyle ihtiyar olunmuş idiğinden, bunların me'hazi makbule ve esbâb-ı mûcibesi ber-vech-i âtî beyân olunur:

Yüz doksan yedinci ve ikiyüz beşinci madde mucibince ma'dûmun bey'i sahîh değildir. Halbukigül ve enginar gibi şükûfe sebze ve meyve mahsulâtı meselâ hakka'l-vürûd olarak, bazı efradı zuhur etmeden diğer bazı efradı husule gelip geçer olduğu cihetle ekseriye bu misillilerin, zuhur etmiş ve edecek olan mahsulâtı toptan olarak satılmak örf ve âdet olmuştur. Bu misilli mahsûltta mevcuda tebe'an ma'dûmun dahi beraber olarak satılmasını (İmâm-ı Muhammed bin Hasan eş-Şeybânî) (rahmetu'llâhi aleyh) hazretleri istihsânen tecvîz buyurmuş ve (İmâm-ı Fazlı), (Şemsü'l-e'imme el-Halvânî) ve (Ebûbekir bin FazI) (rahmetu'llâhi aleyhim) onun kavliyle iftâ etmiş olduklarından ve nâsı bu misilli örf ve âdetlerinden geçirmek kabil olamayıp, halbuki mu'âmelât-ı nâsı fesada nisbetten ise mehmâ-emken sıhhate hami etmek evlâ olduğundan, bu Mecellede dahi kavl-i Muhammed bi't-tercîh ikiyüz yedinci madde ona muvafık olarak yazılmıştır.

 

Subre meselesinde meselâ: kilesi şu kadar guruşa olmak üzere bir yığın buğday satıldıkda (İmâm-ı A'zam) (rahmetu'llâhi aleyh) hazretlerinin indinde yalnız bir kilesi hakkında bey' sahîh olur. Ve İmameyn (rahmetul'Hâhi aleyhimâ) indlerinde ol yığın tamamen satılmış olarak kaç kile çıkarsa ona göre semeni verilmek lâzım gelip, mu'âmelât-ı nâsı teysîr etmek hasebiyle Sâhib-i Hidâye gibi nice fukahâ dahi bu hususta onların kavlini ihtiyar eylemiş olduklarından, ikiyüz yirminci madde ol minval üzre tahrîr kılınmıştır.

İmâm-ı A'zam hazretlerinin indinde hıyâr-ışartın müddeti üç günden ziyâde olamayıp, İmâmeyn indinde ise her kaç gün mukavele olunursa câ'iz olduğuna ve bu husûsda dahi onların kavli hâl ve maslahata evfak görüldüğüne mebnî ihtiyar olunarak, üçyüzüncü maddede müddet, mutlak olarak dercolunmuştur.

Hıyâr-ı nakitte dahi bu ihtilâf carî olup, bunda: Müddetin ıtlâkı hususunda (İmâm-ı Muhammed) (aleyhi rahmetü's-Samed) hazretleri münferit ise de maslahat-ı nâsa evfak olmak hasebiyle onun kavli ihtiyar olunarak, üçyüz on üçüncü maddede dahi "falan vakte kadar" deyü müddet ıtlâkı üzre bırakılmıştır.

İmâm-ı A'zam hazretlerinin indinde istısnâ'an mün'akid olan bey'den müstasni' rücû' edebilir ise de, İmâm-ı Ebû Yusuf (rahmetu'llâhi aleyh) hazretlerinin indinde masnû' ta'rîfe muvafık olduğu halde rücû' edemez. Şimdi âlemde pek çok kârgâhlar yapılarak bunca toplar, tüfenkler, vapurlar mukavele ve sipariş ile yaptırılagelip, istisna' keyfiyyeti masâlih-i cesîme-i cariyeden olmasıyle müstasni'in akd-i istısnâ'ı feshde muhayyer olması nice masâlih-i cesîmeyi ihlâl edeceğinden ve istisna' hususu hilâf-ı kıyâs olarak örf-i nâsa mebnî istihsânen meşru' olan seleme makTs ve örfe müstenid bir keyfiyyet olduğundan, maslanat-ı asra nazaran İmâm-ı Ebû Yusuf kavlinin ihtiyarına lüzum görülerek,üçyüz doksan ikinci madde ona muvafık olarak yazılmıştır.

Mesâ'il-i müctehedün-fîhâda İmâmü'l-müslimîn hazretleri her hengi kavi ile amel olunmak üzre emrederse mûcebince amel olunmak vâcib olduğundan, ma'rûzât-ı mebsûta nezd-i hakâ'ik-vefd-i Vekâlet-penâhîlerinde dahi karîn-i tasvîb buyrulduğu hâlde Mecelle-\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\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melfûfenin bâlâsı Hatt-ı hümâyûn-ı Hazreti Hilâfet-penâhî ile tevşîh buyrulmak babında...
 
Fî 18 Zi'l-hicce sene 215 ve fî 10 Mart 215
Ahmed Cevdet (Nâzır-ı Dîvân-ı Ahkâm-ı Adliyye)
Seyfeddin (an-A'zâ-yıŞûrâ-yı Devlet)
Seyyid Ahmed Hilmi (an-A'zâ-yı Dîvân-ı Ahkâm-ı Adliyye)
Seyyid Halil (Müfettiş-i Evkâf-ı Hümâyûn)
Seyyid Ahmed Hulusi (an-A'zâ-yı Dîvân-ı Ahkâm-ı Adliyye)
Mehmed Emin (an-A'zâ-yıŞûrâ-yı Devlet)
İbn-i Âbidîn-zâde Alaüddin (an A'zâ-yı Cem'iyyet)
 

  
               BİSMİ'LLÂHİ'RRAHMÂNİRRAHÎM
 
       Dürerü'l-Hükkâm Şerhu Mece//eti'l-Ahkâm
 
El-hamdü li'llâhi hamde'l-müteşerri'în, ve's-salâtü ve's-selâmü alâ seyyidinâ Muhammedin seyyidi'l-mürselîn, ve alââlihî ve ashâbihî ecma'în.

Ma'lûm-ı erbâb-ı hukuk olduğu üzre ilm-i celîl-i fıkıh, bir bahr-ı bî-pâyân olup, bundan gurer-i mesâ'il-i lâzimeyi istinbât ile hall-i mes'ele edebilmek hayli maharet ve melekeye mevkuf ve ale'l-husûs Mezheb-i Hanefîüzre te'lîf edilmiş kütüb-i celîle-i fıkhiyyede ihtilâfât-ı kesîre muharrer bulunmuş olmağla, onlardan akvâl-i muhtâreyi hülâsa ve tenkîh ve zikr-i edille ile ebsân Tenvîr ederek, Mecelle gibi bir eser-i âlîye şerh yazmak, müşkil ve tetebbu'ât-ı kesîreye mütevakkıfdır. Abd-ıâcizi kıllet-i bidâ'a ile beraber alâ-kaderi'l-istitâ'a sarf-ı mesâ'î ederek umûr-ışer'iyye ile meşgüliyyet-i âcizânem esnasında ilm-i fıkıh mütâle'asıyle iştigâl edilmiş ve bu vesîle ile hayli dürer-i mesâ'il intihâb ve ihtiyar edilerek, Mece//e'nin mevâdd-ı münâsibine şerh ve "Dürerü'l-Hükkâm Şerhu Mecelleîi'l-Ahkâm" ismiyle tevsîm kılınmıştı. Mecelle ahkâm-ı fıkhiyyeden ahzedilmiş olmağla buna dâ'ir yazılacak şerhin kütüb-i mu'tebere-i fıkhiyyeden iltikât edilmesi ve Mecelle'm ihtiyar eylediği akvâle tevâfuk eylemesi lâ-büdd bulunmuştur. Yoksa bazıların yapmış olduğu vecihle bir takım mütâle'ât-ı indiyye ve mülâhazât-ı akliyye serdiyle Mecelle'ye yazılacak şerhin hiç bir kıymeti olmadıkdan başka mazarratı bulnuduğu aşikârdır. İşbu şerh-i âcizî tamâmıyle Fetvâhâne-i âlîde müte'addid ulemâ ve fukahâ tarafından tedkîk ve şer'-i âlîye muvafakati tasdîk buyrulmuştur. Bu şân ve şeref işbu şerh-i âcizîye mahsûs ve maksûr olup, Fetvâhâne-i âlîce tasdîk olunmuş bundan başka Mece//e'nin bütün mevâddını muvazzıh ve mesâ'il-i mühimmeyi cami' şerh yokdur. Ve mina'llâhi't-tevfîk.

Hâ ene eşre'u fi'l-maksûdi mütevekkilen ale'r-Rabbi'l-ma'bûd, mürûîdü'l-ıslâh, kâsıdu'l-îzâh, sâ'ilen anh'l-hidâye ve'l-inâye ve mübtehilen minhü'l-vikâye fi'l-bidâyeti ve'n-nihâye iieyhi tübtü ve bihî i'tesamtü.
 

                                  MEDHAL
 
Bir ilmin tahsilini arzu eden talibin on şeyi bilmesi îcâb eder ki, bunlar o tâlib için mûcib-i basîret, yâni tahsîl-i ilimde göz açıklığı müstevcib olur.

Birincisi o ilmin ismi, ikincisi ta'rîfi, üçüncüsü mevzû'u, dördüncüsü me'hazi, beşincisi gayeti, altıncısı vâzı'ı, yedincisi mesâ'ili, sekizincisi hükmü, dokuzuncusu şeref ve fazileti, onuncusu nisbetidir.

İmdi bu ilmin, ismi fıkıhdır, ta'rîfi dahi Mecelle'nln birinci maddesinde zikrolunur. Bu halde bunun tarif ve izahı mezkûr maddenin müzâkeresi vaktine ta'lîk edelim.

Mevzû'una gelince: Mevzû'-ı ilim demek, kendisinde a'râz-ı zâtiyesinden bahsolunan şey demektir. Ve ilm-i fıkhın mevzû'u dahi sübûten veya selben abd-i mükellefin fi'ilidir. İşte buna mebnîdir ki, fukahâ; Kitâbü'n-nikâh, Kitâbül'l-bey' ve Kitâbü'l-hibe diye unvanlarla zikrederler. Nikaholsun, bey' veya hibe olsun mükellefin fiilinden ibarettir. Şu kadar var ki, fukahâ bazan ef'âl-i mükellefe müte'allik bir şeyi dahi ünvân-ı bahs kılarlar, kitâb-ı ariyet ve kitâb-ı me'zûn gibi. Halbuki fıkhın sâlifü'z-zikr mevzû'una göre bunlar, Kitâbü'l-i'âre ve Kitâbü'l-izn diye zikrolunmaiıdır. (Dürr-i Müntekâ) Bu halde mükellefin gayrinin fi'ili ilm-i fıkhın mevzûundan değildir. Mükellefin gayrisi sabî ve mecnûn ve behâyim gibilerdir.

"Sabî ve mecnûn, birinin malını itlaf etse zâmin olur, ve bir kimse hayvanını başıboş tarîk-i amma salıverse ettiği zararı zâmin olur" diye ilm-i fıkıhda bahisler vardır. Mademki mevzû'u fi'il-i mükellefdir, ilm-i fıkıhda bunlardan nasıl bahs olunur. Deriz ki, sabî ve mecnûn ve behâyimin itlaf ettikleri şeylerin tazmîniyle olan teklîf onlara âit olmayıp, belki velîleriyle sahihlerine râci' olduğundan bu gibi mesâ'il-i fıkhiyyeden bahis dahi ef'âl-i mükellefinden bahis demek olmakla, ilm-i fıkha dâhil olmuş olur.

Me'hazi dahi kitâb, yâni Kur'ân ve sünnet ve icmâ'-ıümmet ve kıyâsdır. Sünnet dahi Resûl-i ekrem ve Nebiyy-i muhterem Salla'llâhü aleyhi vesellem Efendimiz hazretlerinin akvâl ve ef'âl-i şerîfe ve takrîrât-ı münîfeleridir.

Ashâb-ı kiram gibi mesâ'il-i dîniyyede icmâ' ve ittifaklarına i'timâd olunan zevatın ittihâd ve icmâ'larına icmâ'-ıümmet denir.
Kitâb, sünnet ve icmâ'dan ahz ve istihraç olunan ahkâm-ı dîniyyeye gayrı bir şeyi kıyâs etmeğe kıyâs-ı fukahâ denilir. Kıyâsa bir misâl: "Velâ tekul lehümâüffin" nazm-i celîli ebeveyne karşı eser-i zucret izhârından bizi nehyetmektedir. İşte bu âyet-i kerîmenin nassı ile hürmet-i zacr sabit olmuştur. Ebeveyni darb ve şetm etmek gibi ezalardan men' ve tahrîm olunduğumuz buna kıyâsen sabit olur.
Gayeti, sa'âdet-i dâreyne nâ'il olmaktır. İlm-i fıkhın sahibi dünyâda aziz ve muhterem ve dâr-ı ukbâda mütenâ"im-i envâ'-ı ni'am olur, vâzı'ıİmâm-ı A'zam hazretleridir.

Fıkhın mesâ'ili, mevzû'u fi'il-i mükellef ve mahmulü ahkâm-ı hamse-i şer'iyyeden mürekkeb cümlelerin biridir. Ahkâm-ı hamse; vücûb, nedb, ibâha, hürmet ve kerâhetden ibarettir. İşte fıkhın mesâ'ili şu fi'il vâcib, bu fi'il haram, o fi'il mendûb, diğer fi'il mübâh, öbür fi'il dahi mekrûhdur gibi cümlelerdir. Fıkhın hükmü, ibâdâta dâir olan ahkâmını icmâlen olsun ta'ailüm ve tederrüs eylemek müslimîne farz-ı ayndır. Bey' ve emsali mu'âmelâta dâir ahkâmı mümkün mertebe öğrenmek farz-ı kifâyedir. Fıkhın şeref ve faziletine gelince, kelâm ve tefsir ve hadîs ve usûl-i fıkhdan mâ'adâ kâffe-i ulûmun efdalıdır.

Mezheb-i Hanefî'ye müte'allik ahkâm-ı dîniyye Abdullah ibn-i Mes'ûd hazretlerine muttasıl olan tarîk ile istinbât olunmuştur. Yâni mezhebimizin imâmı a'zamı bulunan Ebû Hanîfe Nu'man bin Sabit Hammâd'dan, Hammâd dahi İbrahim Neha'î'den ve bu da Alkame'den ve bu da Abdullah bin Mes'ûd'dan ve bu da Resûl-i ekrem salla'llâhü te'âlâ aleyhi vesellem hazretlerinden ahz eylemiştir.

 

               MUKADDİME  

Yâni Mecelle- Ahkâm-ı Adliyye'nin Mukaddimesi
 
[İki makaleyi hâvidir] ki, birincisi ta'rîf-i fıkıh ve diğeri kavâ'id-i külliye olmak üzre cem'an yüz maddeden ibarettir.
Mukaddimenin iki lügat ve iki de ıstılah ma'nâsı vardır. Lügat ma'nâlarının birincisi; meşhur olan; dâl-i müşeddedenin kesriyle olarak müte'addî bulunan "kaddeme" fi'il-i mazisinden me'hûz olup, mütekaddime ma'nâsınadır ki, öne geçirilmiş demektir. Yukâlü: "Tekaddeme'r-racülü izâ kâne mukaddimen". İkincisi, kezâlik müte'addî bulunan "kaddeme" fi'il-i mazisinden me'hûz olup öne geçirici demektir.

Burada şu iki ma'nânın ikisi de mülâhaza olunabilir.

Birinci ma'nâya göre; "öne geçici" demektir ki, fi'l-hakîka bu mevâdd kitabın önüne geçmiştir.

İkinci ma'nâya göre, mütekaddime "öne geçirici" demek olup, hakikaten bu mukaddime ondaki mevâddı anlayanı anlamayan üzerine geçirir. Yâni takdim eder. (Redd-i Muhtar)

Mukaddime lafzı, fi'l-asl ber-vech-i bâlâ sıfat iken "mukaddimetü'l-ceyş"e -talî'a- isim kılındıktan sonra "her şeyin evveli" ma'nâsına naklolunup, ba'dehû elfâz-ı mahsûsaya isim kılınmıştır.

Mukaddimenin ıstılah ma'nâlarına gelince, ıstılahça mukaddime iki nevi'dir.

Nev'-i evvel: Mukaddime-i ilimdir. Bu da, "mâ-yetevakkafu aleyhi sıhhatü'ş-şürû'" yâni "Sıhhat-i şürû'un mevküfun-aleyhi olan şeydir" diye tarif olunmuştur.

Sıhhat-i şürû', ilmi vech-i mâ ile tasavvur ve bir fâideyi tasdik ile hâsıl olur. "külliyât" ilmin haddini yâni ta'rîfini ve gayetini ve mevzunu ma'rifet gibi şeyler dahi mukaddime-i ilimden ma'dûddur.
 
Nev'-i sânî: Mukaddime-i kitâbdır. Yâni kelâm-ı kitâbdan bir tâife-i mahsûsadır ki, kitabın ona irtibatı veya kitâbda onunla intifa' için maksûdun önüne geçirilmiştir ki, maksûd gerek ona mevkuf oisun ve gerek olmasın (İzmirî) binâ-berîn mukaddimetü'l-ilm ile "mukaddimetü'l-kitâb" beyninde umûm ve husus mutlak olarak "mukaddimetü'l-ilm" ehass-ı mutlaktır. "Mukaddime" lafzının tafsîl ve tahkiki (Mutavvel) nâm kitâb ile havâşîsindedir.  ( mecelle şerhi, mecelletül ahkam şerhi, mecelle fiyat, 4 cilt mecelle kitabı, online satın al, Osmanlı yayın, gül neşriyat, ucuz dini kitap, uygun fiyat, islami kitap  satış, gonca kitabevi, İslam, onlıne satış, kitabyurdu.net, aynı gün kargo, 3 günde teslim, ucuz kitap, internetten satış, yazar, mecelle tercümesi, mecelle kanunları, mecelle tam metin, mecelle kitap, mecelle satış, mecelle satın al, mecelle 4 cilt fiyat, mecelle şerhi fiyatı  )
 
MAKÂLE-İÛLÂ

[İlm-i fıkhın ta'rîf ve] aksâm-ı erba'aya [taksimi beyânındadır] ki yalnız bir maddeden ibarettir.

İlm-i fıkıh, terkîb-i izafî olup, burada ilm-i mantık ıstılahında olduğu gibi yakînve zanna sâdık olan idrâkden ibarettir.

İdrâk, eğer nisbet-i tâmme-i hayriyyeyi iz'ân ise tasdik, değil ise tasavvur olur, lâkin atîde zikrolunacağıüzre tasavvurlar ilm-i fıkhdan ma'dûd olmamakla bundaki ilim, tasdik ma'nâsınadır.

Fıkh "fâ"nın kesri ve "kâfin sükûnu ile olup, lügaten, anlamak ma'nâsınadır ki, fi'il-i mazisi "Kâfin zammıyle olan "fakuhe" olup, "fakîh" yâni ilm-i fıkha âşinâ oldu demek olur. (Redd-i Muhtar fi'l-Mukaddime"  (  Mecelle Şerhi Şerhu Meceletil Ahkam Ali Haydar Efendi , Raşit Gündoğdu - Osman Erdem , Gül Neşriyat - Osmanlı Yayınevi , tercümesi )
 

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