著者

飯山 陽

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.46, no.2, pp.113-133, 2003 (Released:2010-03-12)

被引用文献数

1 1

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Maslaha has received considerable attention from scholars as a crucial principle which guarantees the developing tendency of Islamic society since the early 20th century. This paper attempts to show its importance in the lslamic legal theory which has been evolved to expand and adapt the established authoritative doctrines in the changing circumstances. Qarafi (d. 684/1285), who is famous for his theory of qawa'id (legal precepts), evolved the concept of maslaha which had been defined as ‘the preservation of the purpose of law (God's legislation)’ by Ghazali to the source of a valid and concrete methodology for creative law findings in his theory of qawa'id. He could legitimate goal-oriented and substantive interpretations by applying considerations of maslaha not only as a criterion to identify a 'illa's suitability but as an indispensable stipulation for some legal principles such as rukhsa (legal license) and sadd al-dhara'i‘(blocking means). Maslaha functions to legitimate his legal theory as a whole which purposes to give mujtahids’ legal methodology to muqallids so as to be depended in their law findings. The origin of maslaha is God, i. e. the prime authority in Islam; thus Qarafi could make use of this concept as the origin of all law findings in structuring his legal theory. Maslaha is the key concept to understand the legal theory and practice in the post-formative period of Islamic jurisprudence.

著者

飯山 陽

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.47, no.2, pp.102-119, 2004 (Released:2010-03-12)

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There have been many studies about maslaha since the early 20th century and they agree that Al-Ghazali (d. 1111, 505A. H.) formulated maslaha as a legal concept. They, however, only discuss maslaha from Al-Ghazali on, so it has remained unclear on what kind of theoretical bases Al-Ghazali formulated his famous maslaha thesis by now. In this paper I present some parts of maslaha theory by Al-Juwayni (d. 1085, 478A. H.) so as to consider how Al-Ghazali innovated former theories of maslaha. The core of Al-Ghazali's maslaha thesis is that he defined it as ‘the purpose of God's law’. Al-Juwayni, in his book Al-Burhan, uses the words ‘the intention of the lawgiver’ When writing abaut maslaha. Although he discussed that both maslaha and ‘the intention of the lawgiver’ were ultimate sources of all legal judgements, he treated them a little differently. Legal theorist before Al-Juwayni had regarded maslaha as God's law itself or compliance with it. Then it can be said that Al-Ghazali could have depended on his master, Al-Juwayni's theory of maslaha, or at least got some crucial ideas from it even if the position as the formulator of maslaha is appropriate to Al-Ghazali.

著者

飯山 陽

出版者

東京大学

巻号頁・発行日

2009

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博士論文

著者

飯山 陽

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.50, no.2, pp.141-160, 2007 (Released:2010-03-12)

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It is usually said that maslaha as a legal concept was first defined in a tangible manner by al-Ghazali (d. 1111) and that he made a breakthrough innovation in the evolutional history of maslaha theory. But in my previous article (Oriento 47: 2 [2005]), I analyzed the maslaha theory of his master al-Juwayni (d. 1085) and clearly demonstrated that (al-Juwayni's) theory was innovative by comparison with former theories. The current article investigates three books of legal theory written by al-Ghazali, namely Mankhul, Shifa' and Mustasfa, to reconsider whether his achievement was this accepted notion. The findings show that most of the terms and the logic used in his maslaha theory had been already used by al-Juwayni. However, al-Ghazali arranged his master's maslaha theory in an easily comprehensible and methodical fashion. His master's theory, in contrast, was complicated and used many terms inconsistently, and what is more, he criticized harshly the interpretation and application of maslaha by the Maliki school. This is why later scholars, especially Maliki scholars, quote al-Ghazali's maslaha theory exclusively. Thus, the achievement of al-Ghazali in the history of maslaha theory should be sought in his arrangement of his master's theory, because without that, it is hard to understand how later scholars could have evolved maslaha theory and applied the con-cept in legal practice.

著者

飯山 陽

出版者

ワック

雑誌

Will : マンスリーウイル

巻号頁・発行日

no.169, pp.197-203, 2019-01

著者

飯山 陽

出版者

日本在外企業協会

雑誌

グローバル経営 (ISSN:13452932)

巻号頁・発行日

no.423, pp.22-25, 2018-11

著者

飯山 陽

出版者

山川出版社

雑誌

歴史と地理 (ISSN:13435957)

巻号頁・発行日

no.616, pp.26-33, 2008-08

著者

飯山 陽

出版者

上智大学

雑誌

上智史學 (ISSN:03869075)

巻号頁・発行日

vol.51, pp.231-233, 2006-11-30

著者

飯山 陽

出版者

日本中東学会

雑誌

日本中東学会年報 (ISSN:09137858)

巻号頁・発行日

vol.20, no.2, pp.197-220, 2005-03-31 (Released:2018-03-30)

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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.

著者

飯山 陽

出版者

東洋文庫

雑誌

東洋学報 = The Toyo Gakuho (ISSN:03869067)

巻号頁・発行日

vol.87, no.4, pp.536-562, 2006-03

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Maṣlaḥa, which is translated as public interest or common good, has been one of the major topics in the study of Islamic legal theory since the beginning of the 20th century, and today, is attracting the attention of scholars interested in “publicness,” or the nature of a community of people as a whole. However, the original meaning of maṣlaḥa is merely “interest” or “good,” and how it developed into the term for “public interest” or “public good” has not been clearly investigated. The present article discusses the legal theory of Abū al-Ḥusayn al-Baṣrī (d. 1044), a Mu‘tazili theologian and attempts to show that in his ideas we can see the germination of the usage of maṣlaḥa in the sense of public interest or public good in the Islamic world.In al-Baṣrī’s ideas, maṣlaḥa is principally used merely in its original sense of “interest,” but he divides the meaning into two types: one that receives praise from God as one of His followers, the other that does not involve praise nor blame from God. The former is almost synonymous with the legal rules derived from revealed sources of law, such as Qur’ān, Sunna, Ijmāʻ and Qiyās, and regarding them, he argues vehemently against the use of maṣlaḥa as ratio legis, for this maṣlaḥa is what we can gain through speculation and is not determined by human reason. This maṣlaḥa can be interpreted as sharī‘a, which God revealed to men as their public interest or common good.The latter meaning is used interchangeably with other Arabic words, such as naf‘ and manfa‘a, which also mean “interest” principally. He says that we are able to understand this maṣlaḥa through reason and can use it as the basis for judging something or some action to be good and permissible. The significance of his ideas about maṣlaḥa lies in these two separate usages; and the author concludes from this that this double meaning paved the way for maṣlaḥa to play a prominent role in legal theory, by providing later scholars with a hint to use maṣlaḥa as the basis of their own legal speculations.