Abstract

Some contemporary Islamic jurists divided the sources of debt into five parts. Unilateral legal proceedings, contract, tort, unfair acquisition and law. Tort, means illegal and harm to someone else’s property and body. In order for an action to be deemed to be tort, it is necessary to have four conditions. These conditions are the conditions of “unlawfulness”, “fault”, “damage” and “causality.” In our article, we have examined the element of unlawfulness by using the literature and systematics of Islamic law and Turkish positive law. As it is known, the concept of unlawfulness is one of the basic and important concepts of the science of law. Because for an action to give legal responsibility that action must be unlawfulness. If an action conforms to the legal order, that action shall not cause legal responsibility. However if the act violates the legal order, then the act causes legal responsibility. But there are some reasons that eliminate the unlawfulness. These reasons are the “enjoyment/use of the right”, “permission of the competent authority”, “performing”, “lawful defense”, “necessity”, “victim’s consent”, “self aid”, “superior public interest or superior special benefits” and “scientific research and criticism.”

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