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

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.

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