フルーウは実定法か? : ジュワイニーおよびカラーフィーのシャリーア論を介したフルーウ概念再考 Is Furu' Positive Law? : Reconsideration of the Concept of Furu' through the Shari'a Theory of Juwayni and Qarafi

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著者

    • 飯山 陽 IIYAMA Akari
    • 東京大学大学院人文社会系研究科 Graduate School of Humanities and Sociology, The University of Tokyo

抄録

Furu^^-', in Arabic, has been translated in English as 'positive law' by contemporary scholars since J. Schacht wrote 'positive law is called furu^^-' 'in his famous book An Introduction to Islamic Law (1964). The concept of positive law, however, is essentially different from that of furu^^-'. Most of the contemporary scholars have taken furu^^-' as positive law without authorities and founded reasons, but some of them like N. Calder and B.M. Wheeler translate it simply as rules or regulations. In this article, I present two examples of Muslims' conceptions of 'law' through the books of usu^^-l al-fiqh so as to reconsider the appropriateness of translating furu^^-' as positive law. Muslim scholars such as Juwayni^^- (d. 478/1085) and Qara^^-fi^^-(d. 684/1285) regarded furu^^-' as shari^^-'a, that is, orders the God set down. For furu^^-' is originated in the God and derived from revelations by following strict principles and methodologies, it is shari^^-'a no less. Moreover, in the historical reality, furu^^-' had been applied to real cases at least by the end of 19th century and it can be said that this explains the perception. For in Islam, lawgiver is only the God. The two scholars have never denied the probability of furu^^-', but at the same time, they have never regarded furu^^-' as the law which man can legislate and change. In the center of the concept of positive law, there are some fundamental factors. For example, it is regarded as the counterpart of natural law, and is legislated by man, and is fallible and changeable. These factors, however, are not found in Muslim scholars' perceptions of furu^^-'. In addition, contemporary scholars apply the western-originated dichotomy (natural law / positive law) to Islamic law even if the dichotomy dose not exist in Islamic law originally. To identify furu^^-' as positive law contradicts perceptions of furu^^-' of Muslims. In my opinion, it is not appropriate to translate furu^^-' as positive law. The words 'positive law' would just drive us far away from understanding its original meaning and semantic structure. It is sufficient to translate furu^^-' just as concrete rules or norms like N. Calder dose. It seems that contemporary scholars have studied Arabic texts through the filter of translated concepts, using the words 'positive law'. As a result, they regard Islamic law as if there is a dichotomy between shari^^-'a and furu^^-' in it just as western law (natural law / positive law) although Muslim scholars such as Juwayni^^- and Qarafi take furu^^-' as a part of shari^^-'a. Islamic law should never be to studied through western-originated concepts or explained in western contexts. We have to study the texts in original language paying attentions to the words' own semantic structures so as to respect the uniqueness of Islamic law and derive its universality as law. I believe this approach should contribute to the more sincere study of Islamic law in future.

収録刊行物

  • 日本中東学会年報

    日本中東学会年報 20(2), 197-220, 2004

    日本中東学会

各種コード

  • NII論文ID(NAID)
    110004023768
  • NII書誌ID(NCID)
    AN10183797
  • 本文言語コード
    JPN
  • ISSN
    0913-7858
  • NDL 記事登録ID
    7726585
  • NDL 雑誌分類
    ZA5(政治・法律・行政--国際政治・国際事情) // ZG76(歴史・地理--アジア・アフリカ--その他のアジア諸国)
  • NDL 請求記号
    Z1-417
  • データ提供元
    NDL  NII-ELS  J-STAGE 
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