<論考>法源学構築のもう1つの道 --ハナフィー法学派における「法学原則」の形成と「法規定の7範疇」--

Abstract

This article inquiries into the construction of Islamic Jurisprudence, or ʻIlm Uṣūl al-Fiqh, in the broader sense, focusing on the Path of Jurists, or Ṭarīq al-Fuqahāʼ, which was carried out by the Hanafi school of law, and less studied in modern academia when compared with the Path of Speculative Theologians, or Ṭarīq al-Mutakallimīn. Formative writings of Uṣūl al-Fiqh started with al-Shāfiʻī (d. 204 A.H./820 C.E.) and constructed interpretive methodologies based on deduction from the fundamental texts of Islam. Responding to such a trend, the Hanafi scholars constructed al-Qawāʻid al-Fiqhīya (Legal Principles) based on induction from the actual legal interpretations of the founding masters of their school, Abū Ḥanīfa (d. 150/767), Abū Yūsuf (d. 182/798), and Muḥammad al-Shaybānī (d. 189/805). Actual writings of the Principles were started, as far as we can confidently assure with the existent materials, by al-Karkhī (d. 340/951–2) with his Uṣūl of al-Karkhī, followed by al-Jaṣṣāṣ (d. 370/981) and al-Dabūsī (d. 432/1041). These principles were extracted from the legal judgments of actual cases through inductive generalization. As such, the Legal Principles were accepted widely because of their usefulness for the Jurists. The term Uṣūl in the Hanafi school was, however, used to mean the basis of these principles since al-Karkhī for a long time, not in the sense of Uṣūl of Uṣūl al-Fiqh in the narrower sense. While the Shafiʻi and Maliki scholars contributed to constructing the “Five Categories of Legal Rules, ” the Hanafi scholars constructed the “Seven Categories” of their own. This difference can also be traced to the Hanafi esteems and reliance on the founding masters of their school. The contrast between the two Paths continued until the eras of synthesizing across scholarly boundaries started in the 13th century.