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
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.
日本中東学会年報 20(2), 197-220, 2004