Rational Inference in Hanafi Criminal Law (In the Context of the Crime of Cutting off Hands)

Abstract

Primary/shariah evidence accepted by the majority of Islamic legal doctrines and used in deducing judgments are; book, sunnah, ijma and qiyas. However, apart from these primary evidences, it is known that many additional/methodical evidences are also used in the production of religious/legal judgments. Procedural evidences frequently used in Hanafi doctrine are; istihsan, custom, maslahat-i mursal, and the words of the companions. Other methodological evidence used in Islamic law by almost all legal doctrines, including Hanafis, with different intensity and with some additional conditions are; şer'u men kablena, istishâb, istislâh, deeds of the people of Medina, seddi zerâi' etc. can be listed as follows. However, when secondary  issues  are  examined   with   the  inductive  method,  it  is  observed  that  different  evidence  and methods, apart from the primary and secondary evidence mentioned above, are also used as legal instruments in deriving the verdict. In this context, the present study deals with the issue of "rational inference", which is used in determining the criminal sanction of the crime in the context of Hanafi criminal law, "in the context of the crime of cutting off hands". In the research, it has been determined that in Hanafi criminal law, in addition to the above-mentioned evidence, rational inference was also used as a basis for the decision. Considering the volume of the article, types of inference, evidentiary value and conceptualization process were excluded from the scope of the study. The subject is limited to the rational inferences that are effective in determining the criminal sanction of amputation of hands among effective acts; the crimes of hadd, retaliation for killing and ta'zir are excluded from the scope. In addition, examples of rational reasoning carried out on the issues of hudud and retaliation for killing are pointed out in the footnotes. In Islamic law, the punishment for the crime of cutting off a hand in accordance with retaliation is to cut off the hand of the perpetrator of the crime if he meets the necessary conditions. The focus of this study is on the rational inferences that are effective in determining a different penal sanction instead of the retaliation provision in some special cases for the perpetrator or victim(s).