İslam Ceza Hukukunda Celde Cezasının İnfazında Kullanılacak Alet ve Uygulanışı Üzerine Bir İnceleme

Özet

Celde, mahiyeti itibarıyla bedeni bir ceza olup İslam hukukunda sıkça kullanılan bir ceza türüdür. Bu nedenle ceza infazında haddi aşmamak ve mahkûma hak ettiğinden fazla ceza vermemek için celdenin infazında kullanılacak aletin ne olduğunu tespit etmek önemlidir. Özellikle son dönemde yayımlanan Ku’rân-ı Kerîm mealleri ile tercüme veya telif tarzındaki tefsir ve fıkıh kitaplarının birçoğunda infaz aletinin değnek ya da sopa olduğu yönünde bir kanaat vardır. Bu, hadis ve fıkıh metinlerinde yer olan mecâzî kullanımı hakikat olarak algılamaktan kaynaklı hatalı bir kanaattir. Araştırmamızda, bahsedilen bu hatanın sebepleri üzerinde durulmuştur. Celde, sopa ve değnek kelimelerinin tahlilleri yapılmış, temsil kabiliyeti yüksek metinlerde celde kelimesinin nasıl tercüme edildiğine dair örnekler verilmiştir. Klasik sözlüklerde, temel fıkıh ve tefsir metinlerinde celde kelimesinin hangi anlamda kullanıldığı ele alınıp celdenin hangi aletle infaz edilmesi gerektiği tespit edilmeye çalışılmıştır. Ayrıca infaz aletinin ne olduğunu doğru tespit edebilmek için celde cezasının nasıl infaz edilmesi gerektiği üzerinde durmak gerekir. Bu nedenle araştırmada infazın nasıl yerine getirilmesi gerektiğinden ve infaz anında nelere dikkat edileceğinden de bahsedilmiştir.

Abstract

The most important aim of punishing criminals is to prevent others from committing the same crime again. This aim, which is known as general prevent (zecr-i âmm) in Law, is the primary objective of the penalties in Islamic law. Because of its influence on the realization of this aim, the Islamic penal law has created the majority of penalties for physical punishments.The celde in these penalties is a kind of punishment which is appreciated in the face of many crimes covered by hadd and ta’zir because of the faster and cheaper execution of the punishment. The execution of such penalties, which cannot be compensated for the damages that may arise as a result of being directed to the human body, must be carried out with great precision. What is the tool to be used in the execution of the Celde sentence, and what qualifications should be in the execution of the execution is important to prevent the overthrow? Because it will prevent the fulfillment of the intended aim with the execution of the wrong tool or punishment or the guilty will be punished more than he deserves with the overcoming of execution.Celde word is used in dictionaries to hit with “sevt”. The word of “sevt” means a whip. However, there is a conviction that most of the books published in the Qur’an translations and the books in Islamic jurisprudence and the Qur’anic exegesis, the word is translated as stick or bat. In the case of a few pieces of work, the execution device in celde sentence is stated as a whip. For this reason, it is inevitable for the reader to be confused about what the execution tool is for the celde penalty when reading through Turkish works. However, there are big differences between the wand / stick and the whip in terms of both the nature and the impacts on the body. The purpose of this study is to investigate the origin of the mentioned problem and to examine why the word has different meanings in Turkish works. The study was started by analyzing the meaning of words celde, stick and wand. It has been investigated the meaning of celde in classical dictionaries, tafseers, hadith and fiqh books. Then, some examples of the word of celde how translated into Turkish have been given in pioneer Qur’anic interpretations and books of tafseer and hadith. In these translations, the wand and stick, which are used as the equivalent of the words of “celde” and “sevt” have been exemplified what exactly used in Turkish. How it occurs the conviction in the tool to be used in the execution of the celde sentence whether wand or stick is the basic question of this study. As far as we have determined, the reason for this conviction is the expression of “بسوط لا ثمرة له” “whip without fruit” in the basic Hanafi jurisprudence texts. The basis of this statement is the phrase of “بسوط جديد لم تقطع ثمرته” “a fresh whip uncut its fruit” in a hadith in Muvatta. The word “ثمرة” in these phrases means, in the first sense, the knotty part of the fruit or tree. However, when looking at this word in depth, it is seen that the forked tip of the whip or the protruding places in the skin of the whip are metaphorically used. The metaphorical meaning of the word has not been taken into consideration in relevant Turkish books, while the words ”celde“ and ”sevt” were expressed as wand and stick in literal meaning. When we look at the commentaries of the texts in Hanafi fiqh and commentaries of Muvatta, it is clearly stated that this use is figurative, and it is emphasized that the tool used in the execution of the punishment is the whip. In order to determine the exact meaning of “celde” and “sevt” in the study, and to determine accurately what the execution tool was, examples of how the execution of the execution of the punishment in classical jurisprudence books were given. These examples show that the execution tool is made of leather, not a wand or a stick. For example, it is mentioned that the purpose of the celde sentence is not to leave a trace in the body of guilty but only to hurt him. It will be possible to create permanent marks on the body of the guilty after the execution with hard objects such as wands or sticks. However, when the whip is used in the specified qualifications, the prisoner will not be permanently traced on his body and will only be hurt. In addition, as a result of the execution of hard objects, the blows are likely to hit the prisoners' vital organs. In this case, the guilty will be punished more than his punishment. In conclusion, it is understood that most of the translation and copyright works mentioned in the research are not taken care of. When the metaphorical meaning of the phrase is not taken into account, it is inevitable that strange translations are revealed. It is seen that the misunderstandings in the previous studies are repeated exactly when Turkish interpretations are concerned. In addition, it is seen that the punishment is not the punishment method, in which the guilty is conceived in modern minds as remains in blood and he is brought to the wounds. In particular, when considering the issues to be taken into consideration during the execution of the sentence, it is understood that the prisoner is a human being, that all the measures are taken in order not to damage his honor and glory, and even that measures are taken in order to prevent the disclosure of genital locations in the body of the guilty at the time of execution.