The issue of the dependence of the accruing of the religious provision on the judicial decision: The example of the Hanafī Madhhab

Abstract

The aim of this study is to determine the reasons whether the existence of the religious judgment depends on the judicial decision by examining the relevant issues in the Hanafi furūʿ sources and using the inductive method. In addition to being theoretically important to know in which cases the religious provision depends on the judicial decision, it is also a prerequisite for making sound assessments about whether the religious provision will be valid or not, in case of a difference between the judicial decision and the religious provision in a concrete matter. It has been determined that five main factors are effective in the dependence of the existence of the religious provision on the judicial decision. These factors are as follows: Whether the legal event is suitable to be the subject of a judicial decision; whether the reason for the religious provision is definite/clear/strong; the disagreement or consensus of the jurists in the provision; whether the person is authorized to take legal transaction; and the legal action to be in the nature of termination of a binding contract. It is possible that more than one reason may be effective regarding the adherence of the religious provision to the judicial decision in a concrete issue. On the other hand, these factors may be in contradiction with each other in a concrete case.