- 法制史研究 (ISSN:04412508)
- vol.2004, no.54, pp.81-113,en13, 2005-03-30 (Released:2010-05-10)
Roughly speaking, studies on Islamic law in the West have been centered around four theses advanced or elaborated by Joseph Schacht (1902-69), represented, among others, in his two monographs, The Origins of Muhammadan Jurisprudence (1950) and Introduction to Islamic Law (1964).First, the formation of Islamic law was a slow process in which the precepts of the Qur'an were gradually extended to cover the subject matters that they do not explicitly cover. In the first centuries of Islam, the popular practice and the Umayyad administrative regulations provided the materials for the nascent Islamic law.Second, in the first half of the eighth century, "the ancient schools of law" were formed in a number of centers of jurisprudence. They represented the average doctrine of each region, but it did not take long before the doctrines were projected back to several past authorities of jurisprudence. This phenomenon preceded the formation of personal schools of law, which were characterized by the adherence to a particular authority.Third, the process of projecting back of doctrine to the past authorities culminated in the fabrication of a large number of the Prophetic hadith (words and deeds of the Prophet), which were finally regarded as second only to the Qur'an as the basis of Islamic law.Fourth, once brought to perfection by the tenth century, Islamic law suffered no substantial change in the following millennium, which phenomenon was known as "the closing of gate of ijtihad (independent reasoning)."Recent studies based on a large number of sources published in the last twenty years and manuscripts that have become accessible to students of Islamic studies have modified these theses. As for the first thesis, recent studies have clarified in details the process during which individual rules were formed in the first two centuries of Islam. Regarding the second thesis, the problem of transition from the regional school to the personal school has been discussed based on the analysis of different kinds of sources, such as biography or works of positive law. The third thesis concerning the authenticity of the Prophetic sunna did not cease to be one of the most disputed subjects of Islamic law. The fourth thesis is no longer maintained, particularly after Wael B. Hallaq published a number of important treaties that shed light on the elaboration of science of theoretical bases of Islamic law.It should be noted that many studies have been undertaken that are focused on the relationship between Islamic law and the medieval and modern Islamic societies.In Japan, it was not until the middle of the eighties that study of Islamic law was undertaken on the basis of the original texts, although a few historians had used sporadically legal sources. Now a number of legal texts or works related to Islamic law have been translated into Japanese, such as the Shìhs of al-Bukhari (1993-94) and Muslim b. H ajjaj (1998), The Ordinances of Government of al-Mawardi (1981-89, of which a revised edition will appear in a couple of years), al-Raw d al-murbi' of the Hanbali jurist al-Bahutì (2002-) and Ma'alim al-din wa-maladh al-mujtahidin of the Shi'i jurist Ibn Zayn al-Din (1985).A History of Islamic Law of HORII Satoe (2004) is the first work in Japanese that deals with the development of the law since its formation in the seventh century up to the present day. It deserves to be mentioned because it assigned a large portion to the legal development since the tenth century, when Islamic law was brought to perfection with the four Sunni schools of law being established. Few scholars are specialized in the theoretical foundation of law (u s ul al-fiqh), but studies by Wael B.Hallaq and 'Abd al-Wahhab Khallaf have been translated.