OUR FORMER CONSTITUTIONAL LEGISLATION AND ISLAMIC
CONSTITUTION (By Prof. Dr. Ahmed AKGÜNDÜZ)
As the information related to our Old Constitutional Legislation was not written properly, some researchers consider that this issue was not studied intensively in our old legislation. The fact that very few studies have been done in the world and particularly in Turkey with regard to the history of legislation has led to such allegations and misinformation. Although the Holy Qur’an and Sunnah have not stated detailed decrees on the Constitutional Legislation unlike on private legislation and penal law, they have put forward general principles and frame decrees that could be changed by ages and applied at different places and times.
The essential references of our Old Constitutional Legislation is composed of the Noble Qar’an, which puts some general principles and frame decrees concerning state and political life; Sunnah, which means the Exalted Prophet’s (p.b.u.h.) practices; the practices of Khulafah al-Rashidin (the Four Caliphs) that set examples to all the Muslims as to how to best live Islam; and scholarly ijtihads (interpretations) that do not contradict Shariah decrees. In fact, the term “in harmony with Shar al-Sharif” often seen in all the legal codes of the Ottoman State proves this.
The work weighs upon three significant issues:
First: The general decrees of the Constitutional Legislation have been very briefly summarized in Islamic Legislation and the text of the Constitution of the City State of Medina, which has been considered by some legal historians as the first written constitution, has been included in the book.
Second: Brief mention has been made of those Constitutional movements seen, especially after Tanzimah, in the Ottoman State, the last great Islamic State founded by Turks. Qanun al-Esasi (Constitution) dated 1293/1876, the first written text of constitution from the aspect of Turkish Legal History and the first constitution that was attempted to be prepared in accordance with Shariah Decrees from the aspect of Islamic Legislation, has also been included in the book.
Third: An exemplary text of Islamic Constitution, which is the product of the contemporary Islamic jurists’ studies and researches over our old constitutional legislation, the Turkish text whereof was presented to all the jurists of the world by Islamic Council of Europe, has been included in the book in consideration of its importance from the aspects of both Turkish Legal History and comparative law.