İSLAM - OSMANLI HUKUKUNDA VAKFA MÜDAHALE KAVRAMI


TOPCU E. N.

Erciyes Üniversitesi Hukuk Fakültesi Dergisi, cilt.19, sa.2, ss.833-883, 2024 (Hakemli Dergi) identifier

  • Yayın Türü: Makale / Tam Makale
  • Cilt numarası: 19 Sayı: 2
  • Basım Tarihi: 2024
  • Dergi Adı: Erciyes Üniversitesi Hukuk Fakültesi Dergisi
  • Derginin Tarandığı İndeksler: TR DİZİN (ULAKBİM)
  • Sayfa Sayıları: ss.833-883
  • Eskişehir Osmangazi Üniversitesi Adresli: Evet

Özet

Önceki hukukumuzda vakıf, diğer tüm müesseselerden farklı olarak ebediyete kadar işlemesi amacına binaen dizayn edilmiş bir kurumdur. Bu nedenle, mülkiyeti yaratıcıya nispet edilerek menfaati kamuya tahsis edilen bu kurumun her bir unsuruna, başka hiçbir hukuki özneye tanınmamış bir dokunulmazlık zırhı biçilmiştir. Vakfın varlığının ve işleyişinin ebedi kılınması, ancak onun hukuki veya maddi varlığına yönelen her nev’iden müdahalenin bertaraf edilmesiyle mümkün olabilir. Ancak önceki hukukumuzda vakıf kurumu, hayatın her noktasına tesir etmiş en önemli içtimai müessese olarak, daima müdahalelerin hedefinde olmuştur. Öte yandan Osmanlı hukuk pratiğinde ziyadesiyle geniş bir yer işgal eden vakfa müdahale kavramı, teorik düzlemde yeterince incelenmemiştir. Bu çalışmanın iki temel hedefi bulunmaktadır: i) Vakfa müdahale fiilinin İslam hukuku kapsamında kavramsal çerçevesini ve unsurlarını tayin edebilmek için fıkıh literatürünü ve fetva mecmualarını inceleyerek hukuki bir analiz yapmak, ii) Pratikteki görünüm şekillerini ortaya koyabilmek için vakfa müdahale fiillerini ahkâm-ı şikayet defterleri, mühimme defterleri ve şer’iyye sicillerindeki kayıtlar üzerinden örneklendirmek.
Waqf is the most important of the legal institutions that influenced the social life of the Ottoman period. During this period, waqfs undertook and successfully performed many public services that are today performed by the state. The charitable waqfs did not stop there and performed very important functions in terms of preventing class conflicts and injustice in the distribution of wealth, as well as establishing social solidarity. However, there is something that distinguishes waqfs in Islamic law from similar institutions in other systems: Its eternal establishment. In fact, it is essential that the establishment of a waqf is not subject to any condition or time limit, otherwise the waqf is not established. There is only one way for such an institution to function in perpetuity: to protect it from all interventions. However, waqfs have been the target of interventions in every period as an institution that manages a small or large amount of material assets and allows many people to benefit in different ways due to its nature. The aim of this study is to make a legal analysis of the acts of intervention in waqf and to examine their practical appearances by exemplifying them. When fiqh literature, fatwa journals and muhimme and verdicts complaint registers are analyzed, it has been determined that the intervention in the waqf, as a tort, consists of three elements: illegality, intent and act. Illegality element, on the other hand, has three norm sources within the framework of waqf law. The first one is the sharia provisions as the general cause of illegality in Islamic law. In this context, the acts that need to be mentioned separately are the acts that are illegal only due to the violation of sharia provisions without the need for other reasons of illegality. This includes, first of all, acts that themselves constitute an offence. Such as stealing waqf property, usurping waqf property, and destroying waqf property. It also includes acts that are normally legitimate but become illegitimate when they are done with waqf property, such as selling waqf property, inheriting waqf property and cancelling the waqf. The second source of illegality that has the force of a norm is the waqfiyyah (waqf deed). The conditions of the founder of the waqf are absolutely binding, unless they are contrary to the sharia provisions. Many details such as who will benefit from the waqf and how, who will be the personnel of the waqf, and how the property of the waqf will be managed are determined in the waqfiyyah. Therefore, all acts carried out in violation of these conditions should be considered as intervention in the waqf. In the sources we have analyzed, we have come across another norm of waqf law that is not permitted to be changed or interfered with: “amel-i kadim” as the third ground of illegality. Amel-i kadim is the reflection of the concept of customary practice (teamül) in the law of waqf. In cases where the conditions of the waqf are not known, even the judge or the mutawalli (trustee) cannot intervene in this practice, which has become a rule after a long period of practice. The second element of the act of intervention in the waqf is intent, which consists of knowingly and willingly performing an act of interference that is illegal. As seen in the case examples, in order for legal accountability to arise, intention is required only for the act itself, not for the result of the act. And the third element of intervention in the waqf is the act. And in order for the element of the act to be deemed completed, it is not required that the result of the damage occurs. On the other hand, although the main form of the act of intervention in the waqf is by executive action, it is seen that it can also be committed by negligent action by persons who have the responsibility of ‘guarantor’. In this study, the structural elements of the waqf institution that may be subject to intervention are determined as the assets of the waqf, the officers of the waqf and the functioning/operating principles of the waqf. In the next step, the interventions against the assets of the waqf were also categorized according to the components of the assets, so that the identity of the interventions in this category with the standard types of crimes and torts could be revealed. In order to better analyze the interventions they are subjected to, the elements of the assets are also divided into three categories: the “ayn” (tangible entity) of the waqf property, the benefits of the waqf property and the income of the waqf property. The interventions against the ayn of the assets consist of legal transactions regarding the transfer of the ownership of the waqf property, as well as acts of property damage. The acts directed against the benefit of waqf property are mostly of the usurpation type and there are many examples of them in the verdict-complaint registers. In the case of interventions in the income of waqf property, the variety of types of acts increases: extortion, pres- sure to confiscate, bribery, betrayal of the waqf are examples of such acts. It was also possible to intervene indirectly in the income of the waqf. In fact, and especially in the 18th century Jerusalem waqfs, the majority of those who intervened in waqfs in this way were members of the “ehl-i örf”, in other words, those authorized by the state. In summary, waqf is one of the most well-protected legal institutions in Islamic law. On the other hand, this institution, which penet- rates social and economic life to such an extent, is also one of the most subject to intervention. The most common concept we encounter in the sections on waqfs in both fatwa journals and verdict-complaint registers, is the concept of intervention. The sanction for this tort is very clear: the intervention is immediately stopped, the perpetrator is obliged to compensate for any damage, and if necessary, is expelled from the waqf through various means.