著者

堀井 聡江

出版者

一般社団法人 日本オリエント学会

雑誌

オリエント (ISSN:00305219)

巻号頁・発行日

vol.45, no.1, pp.56-74, 2002

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In Islamic jurisprudence, <i>hiyal</i> (sg. <i>hila</i>) signify &ldquo;legal devices, &rdquo; or skills used to achieve a certain objective through legal methods. They were not <i>ipso facto</i> &ldquo;evasions of law&rdquo; 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 <i>hiyal</i> 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 <i>h</i> (<i>iyal</i> most extensively, but the Shafi⁽is and the Hanbalis, even though criticizing some evasions of law, pursued <i>hiyal</i> within the framework of their jurisprudence. It is only the Malikis of whom no single work on <i>hiyal</i> is known. They adopted the principle of &ldquo;blocking ways (<i>sadd al-dhara⁾i</i>⁽)&rdquo; which run against <i>hiyal</i>. Moreover, they never used the term &ldquo;<i>hiyal</i>&rdquo; in their legal discussion. However, we cannot conclude that the Malikis had nothing to do with <i>hiyal</i> which played an important role in the development of Islamic jurisprudence, if we examine the <i>Mudawwana</i>.<br>The <i>Mudawwana</i>, ascribed to Sahnun (d. 240/855), a Maliki jurist and <i>qadi</i> 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 <i>Asl</i>. As one of the most important works of Shaybani (d. 189/805), the <i>Asl</i> represents the authoritative transmission of Hanafi doctrine in all fields of law, including <i>hiyal</i>. For this reason, we find many discussions common to Hanafi <i>hiyal</i>-literature and the <i>Mudawwana</i>. These discussions fall into two groups.<br>In the first group, the <i>hiyal</i> 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 <i>sadd al-dhara⁾i</i>⁽, i. e. &ldquo;blocking roads&rdquo; that probably lead to an evil end. In the second group, however, Malik or Ibn Qasim, without using the term <i>hiyal</i>, gives his own solutions, and they, in some cases, differ from those of the Hanafis, and, in other cases, agree with them.