finzioni giuridiche nel diritto islamico

Legal fictions has long been a topic worth exploring in legal theory, for the fact that it carries many productive implications such as a carrier for legal change, an area where jurists have more or less the freedom to showcase their own deduction and problem solving abilities in order to simultaneously be loyal to the word of law as well as demonstrate their connection and deep intimate understanding of any given case, and tailoring their legal knowledge to fit it, thus creating a reasonable resolution, this rather spontaneous and well observed legal practice has been one of the many cornerstones of legal practice in the west, yet, when we come to talk about legal fictions in the context of Islamic law, it becomes a rather ambiguous term, for many reasons that this dissertation duly covers, that is for one that the idea of law, its development and practice has many different and distinct aspects in the Islamic world compared to the western, that is in term of the structure of the court, the authority and the methodologies employed to maintain it, and for two, the term legal fiction itself as an Anglo term has almost no equivalent in Arabic legal language except for “Hiyal” plural for “Hila”, which is a legal stratagem that albeit shares similarities with the English conception of a legal fiction, still shares many differences specifically in its application, and also in its popularity of usage, in this paper we shall delve into legal fictions and Islamic law, the worlds behind both these concepts and then later on legal fictions in Islamic law, their correspondence to existing Islamic legal devices utilized in court, and the whole teaching of “Hiyal” as well as give examples and demonstration of both new and old events.