マムルーク朝前期シリアにおける司法の一斷面 : カーディー、タルスーシーの記述するワクフ管理權繼承訴訟を通して

Abstract

Although alarge number of studies have been made on qadls (judges) from a theoretical or a social point of view, there are not enough studies which explain their actual condition, that is to say, how they applied the islamic law and how the judicial world was they lived in. The purpose of this paper is to show a series of cases of succession to the right of administration of a waqf, which offers some hints to solve the problems mentioned above. All these cases had been brought many times between 1253 and 1352 by the members of the 'Asrun family, who belonged to the Shafi'i madhhab in Damascus, and had been judged under many qadis, who belonged to the different madhhabs. Qadi al-qudat al-hanafi al-Tarsusi (d. 1357) noted and tried to explain about these cases in his work al-Faqtawa al-Tarsusiya. From these cases which he wrote in his work, we see the followings: 1) Qadis judged the cases based on the theory of their own madhhabs. Of course they sometimes judged them within their own discretion. 2) It is certain that there seemed to be superiority between the madhhabs, but there was no superiority between the judgements based on the madhhabs. 3) The difference of the madhhabs which qadis belonged to is not the factor that hindered them from disposing of the cases. 4) There was no relation between the madhhabs which the party supported and those the qadi belonged to. In the cases that we have seen, the members of the 'Asrun family chose the different madhhabs at every time. One reason for this may be that the party chose the qadi who would pass a desirable judgement for the party's own.