マーリク派におけるヒヤルの適用 -サハヌーンの『ムダッワナ』より-

Abstract

In Islamic jurisprudence, hiyal (sg. hila) signify “legal devices, ” or skills used to achieve a certain objective through legal methods. They were not ipso facto “evasions of law” as have been understood. It was common to consult with jurists about certain devices to solve legal problems in daily life. Not to neglect is that hiyal were produced as a result of jurists' ever-lasting endeavor to solve all possible problems using all possibilities allowed by the doctrine, and that they therefore made up an authentic part of jurisprudence except some controversial cases. Among the Sunni schools of law, the Hanafis sanctioned h (iyal most extensively, but the Shafi(is and the Hanbalis, even though criticizing some evasions of law, pursued hiyal within the framework of their jurisprudence. It is only the Malikis of whom no single work on hiyal is known. They adopted the principle of “blocking ways (sadd al-dhara)i()” which run against hiyal. Moreover, they never used the term “hiyal” in their legal discussion. However, we cannot conclude that the Malikis had nothing to do with hiyal which played an important role in the development of Islamic jurisprudence, if we examine the Mudawwana.The Mudawwana, ascribed to Sahnun (d. 240/855), a Maliki jurist and qadi under the Aghlabids, is one of the oldest Islamic legal texts. This text shows that jurisprudence in Qairawan had much in common with its Hanafi counterpart in Baghdad as formulated in the Asl. As one of the most important works of Shaybani (d. 189/805), the Asl represents the authoritative transmission of Hanafi doctrine in all fields of law, including hiyal. For this reason, we find many discussions common to Hanafi hiyal-literature and the Mudawwana. These discussions fall into two groups.In the first group, the hiyal suggested by the Hanafis are rejected as invalid by Malik or his disciple, Ibn al-Qasim (d. 191/806), who was the teacher of Sahnun. The basis of this rejection seems to be the Maliki principle of sadd al-dhara)i(, i. e. “blocking roads” that probably lead to an evil end. In the second group, however, Malik or Ibn Qasim, without using the term hiyal, gives his own solutions, and they, in some cases, differ from those of the Hanafis, and, in other cases, agree with them.