利用合乎圣训的习惯做法作为证据
Utilising The Saheeh ‘urf As A Daleel:
持“习惯”(’Urf)之说的学者们指出:习惯可以是正当的(Saheeh),也可以是败坏的(Faasid)。正当的习惯是不与Shar’a(伊斯兰教法)相违背的,败坏的习惯则是与Shar’a相违背的。败坏的习惯例如:一些家庭习惯在游泳池中男女混杂一起游泳,或者妇女外出时不穿着符合Shar’iy(教法规定)的服饰;又如在婚礼或开斋节庆祝活动中,男女在同一个圈子里一起跳舞。 与Shar’a不相违背的正当习惯,被一些学者视为一种Daleel(证据),法学家或Mujtahid(独立立法的学者)可以借此为指引,来推导出那些没有明文经文规定的现实事物的Ahkaam(律例)。因此,在他们看来,它构成了立法的Masdar(渊源)之一,与Al-Qiyaas(类比推理)、Al-Ijmaa’(公议)同属立法渊源。也有学者认为,它是一种用来指引理解Shar’iyah经文的旨意,以及理解缔约双方用语(Alfaazh)的证据。
The ‘Ulamaa who adopted the ‘Urf stated: ‘The ‘Urf can be Saheeh (correct) and it can be Faasid (corrupted). The Saheeh is that which does not go against the Shar’a whilst the Faasid is that which goes against the Shar’a. The Faasid would be like some families being accustomed to swimming together in the swimming pools whilst the men and women are mixed or women leaving their houses without the Shar’iy dress or like men and women dancing together in a single circle at weddings or Eid celebrations. The ‘Urf As-Saheeh which is not contrary to the Shar’a has been considered by some of the ‘Ulamaa to be a Daleel that the Faqeeh or Mujtahid uses as a guide to arrive to the Ahkaam (rulings) of some of the realities which do not have a text for them. It therefore represents, in their opinion, a Masdar (source) from the Masaadir (sources) of legislation like Al-Qiyaas and Al-Ijmaa’. Some of them have considered it to be a Daleel that is used to guide to understanding the intent of the Shar’iyah texts and from the wordings (Alfaazh) of contracting parties.