イスラム法における未成年者の法的能力 : マーリク派法学書に見られる「弁識能力」の概念を中心に
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概要
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Muslim jurists draw a distinct line between childhood and adulthood, and according to Islamic law the legal capacity of a person changes drastically at the point of puberty. Puberty is basically defined by elements of physical maturity, or at the age stipulated by each legal school in the absence of such physical signs. Although minors are not considered to be subject to Islamic law, there are numerous rules concerning children found in Islamic legal texts. These rules have two main aspects; a code of conduct for adults in treating children, and the legal capacity of the children themselves. The minor is not considered completely incompetent meaning his/her legal capacity evolves until maturity. According to some studies based mainly on Hanafi texts, childhood is divided into two stages, "the infant stage" which begins from birth onwards and "the tamyiz stage" which begins at approximately the age of seven and ends at puberty. During the latter stage, the child is known as sabi mumayyiz and his/her legal restraints are partly emancipated. The notion of tamyiz is an indicator for the change of legal capacity. This notion became common in Maliki texts at least from the 13th century onwards, although it is not found in the Qur'an nor earlier legal texts of any school of law. The purpose of this study is to examine the significance of this notion in the Maliki school. In chapter II, al-Mudawwana, the most authoritative Maliki text established in the 9th century, is examined in order to provide an overview of the normative doctrines concerning changes of legal capacities. It was observed that the legal capacity changes gradually over the course of childhood. In chapter III, through the analysis of later Maliki texts from the 13th century onwards, it is shown that a sabi mumayyiz who has gained tamyiz in Maliki texts represents a murahiq, a traditional term meaning "a nearly adult person" or a child of 10 years old and over with an equal capacity to the former, and the introduction of this new concept, tamyiz, to the legal texts did not modify the normative doctrines in any way in terms of the legal capacity. As to why the definition derived from Hanafi's does not fully apply to Maliki's, it can be explained by comparing some Hanafi and Shafi'i texts. The differences in the definition among schools correspond to the normative doctrines of each school. The later Maliki texts adopted a new idea to divide childwood into two stages through the notion of tamyiz as representing a criteria for the change of legal capacity while continuing to maintain the original normative doctrines. To address the question of how and why the notion of tamyiz was introduced to Maliki texts, the following three remarks are presented; the result of the scholarly interaction, practical needs, and the influence of the development of ethical thought.
- 日本中東学会の論文
- 2004-09-30