Abstract
Law, as a system that regulates social relations, takes an active part in people's lives. Law rules have an important place among other rules regulating social life. The statement that “Where there is society, there is law” clearly formalizes this fact. Understanding the character of law requires knowing its functions. The main functions of law are to provide justice, organize community life, and achieve practical benefits. The fact that law has various functions makes antinomic appearances inevitable. This brings up the problem of which function should be prioritized when antinomy occurs among the functions of law. In order for the law to achieve its ultimate goal of “realization of justice”, it needs to follow a balanced and harmonious approach between these functions. Law is defined as “a social life order oriented towards justice”. The purpose of law is to reach the idea of justice. Justice cannot always be achieved by people's wishes alone. For this reason, another intervention is required. This intervention means ensuring legal security and expressing an order. Being able to talk about the functions of law to provide justice and to meet social needs, the law must emerge as an order.
Our study focuses on connection between “legal maxims” (al-qawāid al-qulliyya) of Islamic law with the functions of law. When we examine the “legal maxims” of Islamic law, whose importance has increased with the codification movements in the history of Islamic law, we see that the main functions of law are also found in the “legal maxims”. “Legal maxims” are the product of trying to put Islamic law into a formal order and have contents based on various functions of law. “Legal maxims” as an indicator of coding have clear and precise expression structures. In this respect, “legal maxims” are primarily based on the order function of law. When evaluated in terms of content, it is seen that the “legal maxims” include regulations regarding the functions of law to provide practical benefits and to provide justice. For instance, the maxim of "al-umūru bi maqāṣidihā" regulates the will of the person in the dispositions and it expresses the function of law to provide justice; the maxim of "al-ḍararu yuzāl", when considering the context of benefit and harm, expresses the function of law to provide practical benefits for people; the maxim of "al-mashaqqa tajlibu al-taysīr" also includes regulations on fundamental issues such as need, necessity, and permission in Islamic law; or, the maxim of "al-‘āda muḥaḳḳama" comes to the fore in relation to meeting the social needs of people. When the “legal maxims” are evaluated one by one, we come to see that they express different functions of the law, and when they are considered together, there appears an inevitable antinomy between them. For example, according to the maxim of "al-umūru bi maqāṣidihā", responsibility for one's actions depends on one's intentions. On the other hand, the maxim of "al-ḍararu yuzāl" requires compensation liability in case of damaging to someone else's property, albeit unintentionally.
The study aims to evaluate the “legal maxims” in Islamic law, and the situations referred to as "legal maxim's exceptions" in the context of antinomy between their functions. In our study, we have primarily focused on the functions of law and tried to determine how these functions correspond to the “legal maxims”. We have exemplified the antinomic aspects between the functions of law on the basis of “legal maxims” in Islamic law. We tried to point out the high values such as special norms, customs and traditions of the people, necessities, and needs, which are taken into account when choosing between the functions of law in antinomic situations that arise between the “legal maxims”. Among the study, sources are al-Majalla, which include the final version of the “legal maxims”, and the commentaries of al-Majalla. We have also consulted the works in the literature of “legal maxims” when necessary, and classical fiqh sources to exemplify the “legal maxims”. Regarding the functions of law, we have benefited from the works of influential scholars who have studies the law.