Osmanlı Sonrası Şer’î Aile Hukuku Uygulamaları: Filistin Örneği

Abstract

Palestine remained under the rule of the Ottoman Empire for nearly four centuries.  During this period, the Ottoman legal system was in force in Palestine as well as in the lands under Ottoman rule. Another link of the enactment movement that started after the Tanzimat for various reasons was the Ottoman Legal Family Decree (OLFD). The decree, which came into force in 1917, was implemented in the field of Sharia family law in Palestine. As a result of the weakening of the Ottoman Empire in the region, the Palestinian lands were given to the administration of Britain in 1918 by the decision of the UN. Britain made radical reforms in the field of law in the region, but it did not amend the application of Sharia family law, and the OLFD, which was previously implemented in the region, was implemented. Britain, which kept silent on the problems between the Jews who constantly settled in the region and the dream of establishing a state and the people of the region, withdrew from the region in 1948. The Jews who had previously become stronger politically, administratively economically, declared on the same day that they had established the State of Israel in the region. The decision in question was met with a reaction by some surrounding Arab states. As a result of the war between the newly established State of Israel and the Arab states, the Palestinian territories were divided into three parts administratively. The area which was defined as the Occupation Zone, passed to Israeli control, Gaza region to Egyptian control, and West Bank region to Jordanian administration. The states that dominate Palestinian territories implemented their own law system in the territories where they administer. The Law Decree that was previously in force in the West Bank region, which is under the control of Jordan, and the laws that came into force after it were periodically abolished, and it had already been replaced only in the West Bank region by "Kanûnu'l-Ahvâli'ş-Şahsiyye" No. 61 of 1976. As far as it can be determined, the lack of study on the subject in our country has led us to investigate the subject. Again, this study is aimed to constitute a stepping stone to the research of other countries' Sharia family law practices. In the examination, it was concluded that “Kânûnu’l-Ahvâli’ş-Şahsiyye” is a binding law only for Muslims who are living in the West Bank, it was prepared with a telphic understanding as well as it is mainly Hanafi sect, the judges are given the opportunity to make new ijtihads provided that they stay within the Islamic legal system, some of the articles are different from the classical sectarian ijtihads, and some of the articles were prepared by considering the customs of the region. Among the results reached, the father is obligated to cover his children's education expenses until they receive their primary, secondary, high school, and university diplomas. The education expenses are counted as alimony, and education is given importance without discrimination between boys and girls. The law consists of 187 articles, and it has been accepted in principle that the preferred view should be taken as a basis in the Hanafi sect on matters not stated in the law. The study, it is aimed that is known the Shari family law and its application. The study, prepared within the framework of explaining and titling the articles of the law, was formed based on the sections of classical and modern fiqh works, court ijtihads, and the Official Gazette decisions issued on the subject. The mentioned study aimed to investigate the family law enforcement in one part of Palestine (West Bank), and it suggested conducting a comprehensive study on the Shari family law enforcement in the remaining two regions (Gazza and Occupation Zone). * This study was prepared based on the master’s thesis, titled “Shariah Family Law Practices in Post-Ottoman Palestine”, which has continued under the supervision of Assoc. Dr. Pehlul Duzenli (Yalova: Yalova University, Graduate Education Institute, master’s thesis, 2023)