第十二条

第十二条 - 《哈里发国草案宪法》 | Quran Course

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Article 12

by Sheikh Taqiuddin An-Nabahani28 min readViewed 148 times

《古兰经》、圣训（逊奈）、圣门弟子的公议（伊джма'）以及类比推理（格亚斯）是伊斯兰教法所采用的唯一依据，不允许采用这些依据之外的任何立法来源。

The Book, the Sunnah, the Ijmaa’ of the Sahabah and the Qiyas (analogy) are the only evidences considered in Shari’ah laws, and it is not permitted to adopt any legislation from other than these evidences.

本条款并不意味着国家将采用某种伊ijtihad(独立推理)的方法;其含义是国家在采纳伊斯兰教法(沙里亚)规则时,将遵循某一特定的方法。这是因为采纳沙里亚规则,在某些情况下可能是强制性的,而在另一些情况下则可能是国家可以选择的。如果这种采纳采用两种相互矛盾的方法进行,就会导致采纳所依据的基础出现矛盾。因此,国家应当在采纳沙里亚规则时采用某一特定方法。促成在规则采纳中采用这一方法的原因有三点:

This article does not imply that the State will adopt a method of Ijtihad; it rather means that the State will follow a specific method when adopting the Shari’ah rules. This is because the adoption of the Shari’ah rules could either be obligatory in some cases or, in other cases, permitted for the State. If this adoption were to be conducted in two contradictory methods, it would lead to a contradiction in the basics upon which the adoption has been conducted. Therefore, the State ought to adopt a specific method in adopting the Shari’ah rules. Three reasons prompted the adoption of such a method in the adoption of rules:

首先，穆斯林所应遵循的准则是沙里亚（Shari'ah）的准则，而非理性的准则；换言之，这是安拉在该事上的法则，而不是人所制定的法则。因此，推导出该准则的证据，必须是启示所带来的内容。

Firstly, the rule by which the Muslim should proceed is a Shari’ah rule and not a rational rule; in other words, it is the rule of Allah in the matter and not the rule laid down by man. Therefore, the evidence from which this rule is deduced must be what the Revelation has brought.

第三，可以确定的是，人在生活中的行为是依照他对生活的观念而展开的。尽管对生活的观点以"阿קיدה"（信仰）为根基，但它仍由存在于乌玛（穆斯林共同体）中的大量概念、标准和信念所构成。这些反映在这一大批概念、标准和信念中的思想并非都属于信仰问题。其中一些属于信仰问题，另一些则属于沙里亚（伊斯兰教法）的律例；而由于律例是以最少的疑虑推导出来的，因此令人担忧的是：如果律例的来源并未确凿地证实是由启示所带来的，那么一些非伊斯兰的思想就可能因为沙里亚律例的存在而渗入乌玛，这些律例所依据的基础原本并非启示最初所带来的。如果这种情况广泛存在并长期使用，它就会影响乌玛所持有的生活观，进而影响其行为。因此，必须确认国家所执行的律例所依据的证据，必须是启示所带来的证据。

Thirdly, what is conclusive is that man’s behaviour in life proceeds according to his concepts about life. Although the viewpoint about life has the 'Aqeedah as its basis, it is nevertheless formed of a host of concepts, criteria and convictions which are existent in the Ummah. Not all of these thoughts, which are reflected in this host of concepts, criteria and convictions are part of the matters of 'Aqeedah. Rather, some of them are from the matters of 'Aqeedah and others are part of Shari’ah rules, and since rules are deduced with the least amount of doubt it is ,therefore, feared that if the origin of the rules has not been conclusively confirmed as being brought by way of Revelation, then some of the non-Islamic thoughts may creep into the Ummah due to the presence of Shari’ah rules deduced from a foundation which Revelation has not brought in the first instance. If it is widespread and used over a long period of time it will influence the viewpoint about life held by the Ummah and consequently affects its behaviour. Accordingly, it is imperative to confirm that the evidences, upon which rules to be implemented by the State are deduced, must be those evidences brought by Revelation.

其次，我们的宗教是从那些圣门弟子那里获取的，因为正是他们把降示给我们的主穆罕默德ﷺ的那部古兰经传述给了我们。因此，如果我们假设他们所一致同意的事项中有某一件出现了缺陷，那就意味着这种缺陷可能侵入古兰经；换言之，这种缺陷可能侵入我们从他们那里所获取的宗教，而从伊斯兰教法的角度来看，这是不可能的。所以，尽管从理性上讲，圣门弟子一致同意某个错误的事项并非不可能——因为他们毕竟也是人，这种情况是可能发生的——但从伊斯兰教法的角度来看，这在他们身上绝无可能发生，因为如果这是可能的，那么错误就可能侵入宗教。换言之，那就可能使我们今天所拥有的这部古兰经并非降示给我们的主穆罕默德ﷺ的那部古兰经，而这从伊斯兰教法的角度来看是不可能的；因此，他们普遍地对某件错误的事情达成共识，也是不可能的。

The second matter is that we have taken our Deen from those Companions since they are the ones who transmitted to us the very Quran that had descended upon our master Muhammad . Hence, if we assumed that a flaw were to creep into one single matter from among what they had agreed upon, this means that the flaw could creep into the Quran; in other words, the flaw could creep into the Deen which we had taken from them and this is impossible from the angle of Shari’ah. Therefore, although it would not be rationally impossible for the Companions to unanimously agree upon an erroneous matter - for this could happen since they are only human - however, this could not possibly happen to them from the Shari’ah point of view since if this were possible, it would then be possible for error to creep into the Deen. In other words, it would be possible for error to creep into the fact that this Quran that we have today is the very same Quran that descended upon our master Muhammad , and this is impossible from the Shari’ah point of view; thus, it would be impossible for them to generally consent on something erroneous.

然而，必须明确指出：众圣门弟子一致认定某一条律例属于沙里亚的律例，这种共识实际上是揭示了一条证据。换言之，该律例背后存在一条源自安拉的使者ﷺ的行为、言语或默许的证据，圣门弟子传述了这一律例，却没有传述其证据。因此，他们对该律例的传述表明，该律例确有证据存在。所以，他们的普遍共识并不意味着他们在某一具体问题上的个人见解趋于一致，因为他们的个人见解不是启示，他们每个人也都不是无谬的；由此，圣门弟子的见解不能被视为沙里亚证据。这是因为，沙里亚证据必须通过启示而来才能被视为沙里亚证据，而圣门弟子的见解并非如此；因此，无论他们一致认同的见解还是他们存在分歧的见解，都不能被视为沙里亚证据。正因如此，圣门弟子的伊吉玛仪并不是指他们对某一个单一见解的共同认可，而是指他们对某条律例属于沙里亚律例这一事实的普遍共识，即某条律例属于沙里亚律例；在这种情况下，这并非他们的个人见解，而是一种认定其出自沙里亚的普遍共识。因此，圣门弟子的伊吉玛仪所揭示的，正是一条证据。

However, what should be made absolutely clear is that the Ijma’ of the Companions stipulating that such and such rule is a Shari’ah rule is simply uncovering an evidence; in other words, there exists for this rule an evidence derived either from the action, words or silence of the Messenger of Allah (pbuh) , and that the Companions transmitted the rule but did not transmit the evidence. Hence, their transmission of the rule discloses the fact that there exists an evidence for that rule. Therefore, their general consensus does not mean that their personal opinions are in agreement over a specific matter for their personal opinions are not Revelation and each one of them is not infallible; thus, a companion’s opinion cannot be regarded as a Shari’ah evidence. This is because the Shari’ah evidence must be brought by way of Revelation in order to be considered as Shari’ah evidence, and the Companions’ opinions are not like that; therefore, they cannot be considered as Shari’ah evidence whether these were the opinions upon which they agreed or the opinions over which they disagreed. For this reason, the Ijma’ of the Companions does not mean their agreement upon one single opinion, it rather means their general consensus about the fact that a rule is a Shari’ah rule, or such and such rule is a Shari’ah rule; in this case, it is not their opinion but rather a general consensus that it is from Shari’ah; hence, the Ijma’ of the Companions is simply uncovering an evidence.

在这两段圣训中,安拉的使者(愿主赐其平安)把对安拉的债务——在斋戒和朝觐中的债务——与对人的债务联系起来。这两者都是已知事物与另一个已知事物之间的关联,即把对安拉的债务与对人的债务相联系,以确认代为偿还即可充抵。之所以如此,是因为这两件事都属于债务;因此两者之间共同的要素就是债务,这便是“illah”(效果因),而为二者所确立的规定就是代偿可以充抵。这就是按照伊斯兰教法,从法律文本中所得的类比(qiyās)的实质。因此,这一定义是一条必须执行的教法规定,是安拉对于推导它的人以及对于效仿它的人所作的约束性规定,无论此人是追问证据的效仿者(Muttabi‘,即查究证据的穆格莱德),还是未追问证据的普通效仿者('Ammi,即未查究证据的穆格莱德)。它与其他任何由教法依据推导出的教法规定一样,因为从教法依据中推导出的教法定义和原则,与其他一切教法规定同属教法规定。

In these two narrations, the Messenger of Allah (pbuh) linked the debt to Allah (swt) in fasting and in Hajj onto the debt to the human and they are both the linkage of a known matter upon another known matter, i.e. the association of the debt to Allah with the debt to the human in confirming that their settlement on one’s behalf would suffice. This is so because both of these matters are debts; thus the mutual factor between them is the debt and this is the ‘Illah and the rule that has been confirmed for both of them is the sufficing of the settlement. This is the reality of Qiyas according to the Shari’ah from the Shari’ah text. Therefore, this definition is a Shari’ah rule that must be implemented and it is the binding rule of Allah upon the one who deduces it and upon the one who imitates it either as a Muttabi’ (a Muqallid who queries the evidence) or as an ‘Ammi (a Muqallid who did not query the evidence). It is like any other Shari’ah rule, deduced from a Shari’ah evidence, because the Shari’ah definitions and principles deduced from the Shari’ah evidences are Shari’ah rules like all other Shari’ah rules.

“作为全世界的慈悯”（TMQ 21:107）以及前面的各段经文，即便被视为属性，经文中也有表明潜在动因（Illah）的字词，但其语境并不表明存在动因，因为这些属性可能缺失，而且立法并非为此而设。因此，伊斯兰教法对于信仰它并依其而行的人来说可以是慈悯，例如最初几代穆斯林；而对于不信它的人，例如不信者，它则可以是灾祸。所以，穆圣ﷺ的派遣对不信者而言是一种灾祸，而他们也属于“全世界”之列。此外，伊斯兰的讯息至今依然存在，因为派遣已在实际中发生，而相信这一讯息的穆斯林今天正处于困境之中。由此可见，并非仅仅派遣，即仅仅伊斯兰教法的存在，就是慈悯，因此它不能作为教法的动因。基于此，获取利益与排除危害并非教法的动因；因而它不被用作类比（Qiyas）的依据。

“Mercy to the worlds (all mankind)” (TMQ 21:107) and the rest of the previous verses, even if they are considered as attributes and within the verses are the letters that would indicate an underlying Illah, the context of the words does not indicate the existence of an Illah because they could be absent and because the legislation was not for its sake. Accordingly, the Islamic Shari’ah could be a mercy for the one who believes in it and who acts according to it, such as: the first generations of Muslims, and it could be an affliction for whoever disbelieves in it, such as the disbelievers. So, the sending of the Messenger (pbuh) is an affliction upon the disbelievers and they are from the ‘Aalameen. Additionally, the Islamic message is present today. This is since the sending has practically taken place and with that the Muslims who themselves believe in that message are today in hardship. So, it is not the sending alone, that is the existence of the Shari’ah alone, that is a mercy, and for that reason it is not an Illah for it. Based upon that, attaining the benefits and repelling the harms is not a Shari’ah Illah; so, it is not taken as a basis for Qiyas.

“我的同伴如同群星，你们无论跟随哪一位，都会得到正道。”这段圣训被用来证明一位圣门弟子的意见是一种证据。这一推论是不正确的，因为先知ﷺ赞美的是众圣门弟子的整体，而非个别人。先知ﷺ的赞美以及圣门弟子的集体共识，证明圣门弟子的一致意见（易季玛尔）是沙里尔的证据。而圣门弟子并非各自单独传承《古兰经》，这同样证明他们的一致共识是沙里尔的证据。真正的沙里尔证据是对他们的赞美，以及他们共同认定某一条律例为沙里尔的律例。因此证据由两点构成：赞美与共识，而这两点都不存在于某一位个别的圣门弟子身上。既然如此，对圣门弟子的赞美和《古兰经》的传承，就不能用来证明传承《古兰经》者的言论是沙里尔证据。理由是：真主ﷻ同样赞美了随从圣门弟子的人，而即使是真主所赞美的人传承了《古兰经》，也不能使传承者的个人言论成为沙里尔证据，因此这一推论是无效的。能够证明这一推论无效的，是个别圣门弟子所传承的内容以及他们所转述的圣训，并不被视为确定的，而是不确定的。因此，“老翁与老妇若通奸，就把他们用石头打死”这句话，尽管是某位圣门弟子所传承的，也不被视为《古兰经》的经文，因为它没有获得共识。同样，圣门弟子传承的单传圣训也不被视为确定的，而是不确定的。

“My companions are like stars, whoever you follow you follow guidance”, support the opinion of a companion being an evidence. This deduction is incorrect since the praise of the Prophet (pbuh) for the companions collectively not individually is a proof that the Ijma’ of the Companions is a Shari’ah evidence and the fact that the Companions did not convey the Quran individually is a proof that their consensus is a Shari’ah evidence. Rather, the Shari’ah evidence is the praise upon them and the fact that they collectively agree that a rule is the Shari’ah rule. So the evidence is two matters, praise and consensus and these are not found in the individual companion. In which case, the issue of praise and the conveyance of the Quran are not suitable to be proofs that the words of whoever conveyed the Quran from those whom Allah (swt) praised are Shari’ah evidences because in the same manner that Allah (swt) praised the Companions, He (swt) also praised those who followed them, and since the conveyance of the Quran even if by those whom Allah (swt) has praised does not make the words of the one who conveyed it a Shari’ah evidence, and due to that the inference made is invalid. What indicates the invalidity of this inference is that what an individual companion conveyed and what he narrated from the narrations is not considered to be definite – rather it is indefinite. Therefore, “When the old man and the woman commit fornication then have them stoned.” is not considered to be a verse from the Quran even though it was conveyed by a companion since there was no Ijma’ upon it. In the same manner, the narrations that are transmitted by the Companions from the singular reports are not considered definite - rather they are indefinite.

这与圣门弟子的公议（Ijma'）不同。圣门弟子一致认定为《古兰经》的内容即是《古兰经》，并且是确定无疑的；他们在圣训方面一致认可、并通过多条相继传述链（Mutawatir）流传下来的内容，同样被视为确定的证据。因此，圣门弟子公议与单个圣门弟子的意见之间差别巨大：圣门弟子一致同意、毫无分歧的内容是确定的，否认它的人即是叛教者；而单个圣门弟子所传述的内容是非确定的，否认它的人不被视为叛教者。所以，圣门弟子的公议属于伊斯兰法的证据，而单个圣门弟子的意见则不被视为伊斯兰法的证据。此外，圣门弟子的公议不会在错误上达成一致，而单个圣门弟子则可能犯错，并非免于错误。圣门弟子之间常常在问题上存在分歧，各人采取不同的观点；因此，如果某位圣门弟子的意见可以作为证据，那么真主的证据之间就会互相矛盾、彼此冲突。所以，圣门弟子个人的意见不被视为伊斯兰法的证据。

This is different from the Ijma’ of the Companions since what they agreed upon unanimously as being from the Quran is considered to be Quran and to be definite, and what they agreed upon unanimously in terms of narrations and were transmitted from them by Mutawatir (successive multiple chains) are considered to be definite evidences. Accordingly, the difference is vast between what the Companions agreed upon unanimously - where there is no disagreement, meaning it is definite and the one who denies it is a disbeliever - and what the single companion narrated which is indefinite and the one who denies it is not considered to be a disbeliever. Therefore, Ijma’ of the Companions is Shari’ah evidence whereas the opinion of the individual companion is not considered to be from the Shari’ah evidences. In addition to that, contrary to the Ijma’ of the Companions who do not agree upon a mistake, the individual companion can make mistakes and he is not free from them. The Companions used to differ over issues and each of them adopted a different opinion from the other; so, if the opinion of the companion were a proof then the proofs of Allah (swt) would be in disagreement and contradictory. Therefore, the opinion of a companion is not considered to be Shari’ah evidence.

“（过去）我曾禁止你们探访坟墓，现在你们可以去探访了。”因此，后来的一条伊斯兰教法经文取消并解除了先前的规定，这就是停止（Naskh）。停止的成立，必须具备三个条件：被停止的规定须先于停止性的规定而降示；停止性的经文中须有迹象表明它是针对某一特定规定的停止；除此之外的情形都不能称为停止。仅仅两条规定之间存在差异或矛盾，并不能使其中一条成为另一条的停止，而必须在停止性的经文中有明确迹象，表明它是针对某一具体规定的停止。据此，这些从先前教法中转述而来的规定，并不会因伊斯兰教中与之不同或相矛盾的规定而被停止，因为没有任何迹象表明这一点。此外，它们与伊斯兰教法的立法之间也没有关联，因此，它们是通过伊斯兰教法对先前教法的废止而被废止的，而不是通过专属于它们的、用来废止它们的法律而被废止的。由此可以清楚地看出，认为我们受到穆圣ﷺ所带来的内容的约束，并以此为限，这种推论是不成立的，因为我们受约束的，是他ﷺ带给我们的伊斯兰教立法，并以此为限；而我们并不受他ﷺ向我们转述的先知们的故事及其记载所约束，也不受他ﷺ向我们阐明的先前民族的情况及其所遵循的律法所约束。由此，已经清楚地表明：先前民族的立法对我们而言不是立法，而将其视为伊斯兰的证据，这种看法也是站不住脚的。

“(In the past) I forbade you from visiting graves, but visit them now.”; therefore, the nullification and raising of the previous rule by a subsequent Shari’ah text is abrogation. Therefore, for abrogation to take place there must be an abrogated rule that was revealed before the abrogating rule, and for an indication to be present in the abrogating text that it is an abrogation for that rule, and anything other than this is not considered to be abrogation. The mere difference between two rules or contradiction between them does not make one of them an abrogation for the other; rather, there must be an indication in the abrogating text which indicates that it is an abrogation for a specific rule. Accordingly, these rules, narrated from the previous Shara’ih, are not abrogated by the rules of Islam which differs with them or contradicts them since there is nothing which indicates that. Furthermore, there is no relationship between them and the rules of Islam in legislation; so, they are abrogated by the abrogation of the previous Shara’ih by the Shari’ah of Islam and not by laws specific to them that came to abrogate them. With this, it is clear that the inference that we are addressed by what the Messenger (pbuh) came with and are restricted by it as being an invalid inference since we are addressed by what came to us with him from the legislation of Islam and restricted by that, and we are not addressed by what he related to us from the stories of the previous Prophets and their narrations, and neither are we addressed by what he explained to us from the circumstances of the previous nations and what laws they used to follow. Accordingly, it has become apparent with clarity that the legislation of those before us is not legislation for us and the invalidity of considering it being from the Islamic evidences is also apparent.

istihsaan 分为两类：第一类是“istihsaan qiyasi”（基于类比的istihsaan），第二类是“istihsaan 因需要而定”（基于必要性的istihsaan）。istihsaan qiyasi 是指放弃一条表面上显而易见的类比推理所得出的规定，转而采用另一条更为精微、隐蔽但证据更强、观点更能令人信服、推导更为正确的类比所得出的规定。例子如下：某人与两个人在同一份契约中从他们二人那里购买了一辆车，作为借来的债务。随后，二人中的一名债权人收到了这笔债务的一部分。然而，他没有权利专门取走这笔钱；相反，他的债务合伙人有权要求分得他那一份收款，因为他（第一位债权人）是从同一笔买卖的合并价款中拿走了这笔钱。而且，二人中任何一方从两人合并的买卖价款中的所得，都等同于两个合伙人的所得，换言之，这是为合伙关系而取得的，并非任何一方可以专门据为己有。因此，如果被取走的那部分在第一位接收者手中于第二位合伙人取得其份额之前被毁损，那么依照类比的推理，损失应从二人的总额中扣除，也就是从合伙关系的总额中扣除。然而，依照istihsaan，损失只应由接收者一方承担，而不应计入第二位合伙人的账上，因为从本质上讲，他并不与接收者的合伙关系不可分割；相反，他能够放弃由取得者所收到的部分，并单独地与债务人建立联系。其他例子也以同样的方式推进。这就是 istihsaan qiyasi。

Istihsaan is divided into two categories; the first is Istihsaan Qiyasi and the second is Istihsaan of necessity. Istihsaan Qiyasi is to abandon the rule of an apparent Qiyas that comes to fore for a different rule by another Qiyas which is more subtle and hidden, but is a stronger proof, with a more satisfying viewpoint and a more correct derivation. An example of this is: if a person bought a car from two people in one agreement as a loan from them. Then, one of the two creditors was given part of this debt. However, he didn’t have the right to take it specifically; rather, his partner in the debt has a right to claim his part of the receipt since he (the first creditor) has appropriated it from the combined sale price in the single sale. Moreover, the appropriation of either of the two partners from the price of the combined sale between them is the appropriation of both the partners, in other words, it is an appropriation for the partnership and it is not for either of them to take specifically. So, if whatever was taken is destroyed while it is in the possession of the one who received it before the second partner took his share from it, then the deduction from the Qiyas is that it would be taken away from the total sum of the two, or in other words, from the total sum of the partnership. However, in Istihsaan the loss would be considered to be taken only from the one who had received it and the loss would not be counted against the second partner according to Istihsaan since in origin he is not inseparable from the partnership of the one who received it; rather, he is able to leave what is received by the appropriator and become attached to the debtor by himself specifically. The other examples follow in the same manner. This is Istihsaan Qiyasi.

关于为了必要而运用的Istihsaan（istihsaan，公益/优选），它是指以考虑迫切的必要或所需的利益来对抗Qiyas（类比推理）的规定，从而满足需要或消除困难。当Qiyas的规定在某些问题上导致困难或弊端时，便会在此时舍弃它，改用能够消除困难、排除弊害的另一规定。例如雇工的情况：雇工对其所受雇之物的占有被视为一种委托（Amanat）；因此，若所雇之物在其手中受损，只要他没有疏忽，便无需赔偿。据此，若有人雇用一人在自己家中工作，为别人缝制衣物，为期一个月，此人即被视为私人雇工。此后，若衣物在雇工手中受损，而他并无任何过失，则无需赔偿，因为他是以委托的方式占有这些衣物。另外，若有人雇用一人在自己的店铺中为众人缝制衣物，而此人为所有人缝衣，则他是公共雇工。因此，若衣物在此雇工手中毁坏，而他并无任何过失，同样不需赔偿，因为他以同样的方式以委托身份持有这些衣物。然而，依据Istihsaan，私人雇工无需赔偿，而公共雇工则需赔偿，目的是使公共雇工不会接受超出其能力范围的工作，以免毁损民众的财产。

As for Istihsaan of necessity, it is what contradicts the rule of Qiyas by taking into account an incumbent necessity or a required benefit in order to fulfil the need or prevent the hardship. This occurs when the rule from the Qiyas leads to a hardship or a problem in some issues and so it is abandoned at that time by Istihsaan for another rule which would remove the hardship and repel the problem. This is like the example of the employee since his possession with respect to what he is employed upon is considered to be an Amanat (trust); so there is no liability (to be paid) if it is damaged while it is with him as long as he was not negligent. Therefore, if someone employed a person to work in his house to sew clothes for someone else for one month, he is considered a private employee. Then, if the clothes were damaged while they are in the employee’s possession without any transgression from him, there is no payment of liability because he possessed it as a trust. Additionally, if someone employed someone to work in his shop to sew clothes for others and he used to sew clothes for all the people, then he is a general employee. So, if the clothes are destroyed while they are in this employee’s possession without any transgression from him then there is no liability since he held them as a trust in the same manner. However, according to Istihsaan, there is no liability upon the private employee while there is for the general employee so that he (the general employee) would not accept more work than he is able to do since he might destroy the peoples’ wealth.

关于对伊斯提哈桑（Istihsaan）的各种解释，它们都是站不住脚的。至于第一种解释，即证据存在于穆扎希德（Mujtahid）的内心之中，而他并不知道它是什么，这种说法是不允许的：一件事物只要仍然未知，就不能被视为证据，因为无法将其阐明、使其显现，这恰恰证明它对穆扎希德而言并不清楚，他也并不了解它，因此它不能算作沙里阿（Shari'ah）的证据之一。至于其他的解释，它们的含义都是相同的，即为了另一个更强的观点而放弃与当前问题相类似的问题，换言之，就是为了更强的证据而放弃类比（Qiyas）。如果这些解释所说的“更强的证据”指的是《古兰经》或《逊奈》中的经文，那么这就不是伊斯提哈桑，而是对经文的优先选择，因此这是从经文中进行推导，属于依据《古兰经》或《逊奈》的推导，而不是依据伊斯提哈桑的推导。如果“更强的证据”指的是理智根据它所认为的利益而作出的判断，并且这才是其真正含义，那么这种说法同样无效，因为类比是建立在沙里阿的伊拉（'Illah，即效因）之上的，而这个效因是由经文确定的，它是立法者（swt）对我们的训示。理智和利益并不是沙里阿的经文，也不是比经文更强的另一个效因；理智和利益与沙里阿的经文（即启示所降下的内容）之间并无关联。因此，这种放弃类比的做法是无效的。

With respect to the explanations of Istihsaan, all of them are invalid. As for the first explanation that the evidence is sensed in the mind of the Mujtahid and that he or she does not know what it is, it is not permitted to consider something an evidence as long as it remains unknown since the lack of ability to make it clear and apparent proves that it is not clear to the Mujtahid and that he or she lacks knowledge of it; so, it is not correct to be from amongst the Shari’ah evidences. As for the other explanations, all of their meanings are the same, i.e. to abandon similar issues to the issue at hand for another stronger view, in other words, to abandon Qiyas for stronger evidence. If these explanations intend by the “stronger evidence”, a text from the Book or the Sunnah, then this is not Istihsaan; it is rather preference of the text, so it is deducing from the text which would be deduction by the Book or the Sunnah and not deduction by Istihsaan. If the “stronger evidence” is the mind by what it considers as benefit and this is the intended meaning, then this is invalid since Qiyas is built upon the Shari’ah ‘Illah which is determined by the text and it is the address of the Legislator (swt) to us. The mind and the benefit are not Shari’ah texts and nor are they another ‘Illah stronger than the text; rather, there is no relationship between the mind and benefit with the Shari’ah text (i.e. what came as Revelation). For that reason, this abandonment is invalid.

关于这些解释，我们要说明：对伊斯提哈桑（Istihsaan）作“伊斯提哈桑格亚西”（Istihsaan Qiyasi）的分类是无效的，这一点已经从第二种解释的无效中清楚地显现出来，那种解释是放弃与该问题相似的问题。另外，他们认为这是一种隐蔽的类比，也是无效的，因为它与类比毫无关系；它实际上只是以利益作为推理依据（即把利益当作“伊拉”，即起因）。至于一个合并买卖的例子，即在一次契约中出售的组合物品的价款，主张在以下规定上存在分歧是不正确的：合伙人之一所侵占的财物的损失，应被视为合伙财产的损失，因为合伙人之一从财物中侵占的部分，就是对合伙财产的侵占。因为这笔财物，无论是已售出的汽车还是其价款，都属于合伙财产，而不是某一合伙人的财产；因此，它的损失就是公司财产的损失，正如它被侵占就是对公司财产的侵占一样。所以，这种基于公益（Maslahi）的放弃毫无依据，并且与伊斯兰教法相违背。

This is regarding the explanations. As for the categorisation of Istihsaan, the invalidity of Istihsaan Qiyasi has become clear from the invalidity of the second explanation, which was to abandon the similar issues to the issue. Also, their consideration that it is a hidden Qiyas is invalid because it has no relationship with Qiyas; rather, it is simply reasoning by benefit (making the benefit an ‘Illah). Regarding the example of the price of a combined sale which was sold in one agreement, it is not correct to differ in the rule, the loss of the wealth which one of the two partners appropriated, that it is a loss from the wealth of the partnership, for what one of the two partners appropriated from the wealth is from the appropriation of the partnership. Because the wealth, irrespective of whether it was the sold car or its price, is the wealth of the partnership and not the wealth of one of the partners; so its loss is the loss of the wealth of the company just like its appropriation is an appropriation of the wealth of the company. So, this beneficial (Maslahi) abandonment has no place and it contradicts the Shari’ah.

所谓“al-Maṣāliḥ al-Mursalah”（麦绥利哈·穆尔赛莱，即无经文依据的公益），可以定义为：凡是在伊斯兰教法中既没有针对它本身、也没有针对其类别的经文记载的利益。因此，“Mursalah”的含义就是它没有在证据中被提及。他们说，如果某项公益本身就在某段具体经文中被提及，例如教授、阅读和书写；或者它出自某段概括性的经文，而该经文提到了其类别并证实了其应被考虑，例如命人行一切善事、禁止一切恶行，那么在这两种情况下，它都不属于“麦绥利哈”。确切地说，“麦绥利哈”是指从证据之外推出的利益，也就是说，在它之上找不到任何证据；相反，它是从伊斯兰教法的总体旨意中推导出来的，因为教法的本意就是获取利益、排除损害。然而，教法所认可的利益与不合法的利益之间存在区别：教法认可的利益是与教法的宗旨（Maqāṣid）相一致的利益，而不合法的利益则是与教法宗旨相违背的利益。因此，能够作为教法证据的“麦绥利哈”，是那些与教法宗旨相一致的利益；而与教法宗旨相违背的，则不被视为“麦绥利哈”，因此也就不能作为教法的证据。由此可见，“麦绥利哈”是指教法经文以概括的方式表明其应被考虑的利益。因此，当某一事件或与之类似的事情没有相应的教法经文时，便可以在这一利益的基础上建立具体的教法规定，此时该利益本身即成为教法的依据。

Al-Masalih Al- Mursalah may be defined as: every interest which has no text narrated in the Shari’ah with respect to it or its type. So, the meaning of Mursalah is that it is not mentioned in evidence. They said that if the Maslahah was itself mentioned in a specific text, such as teaching, reading and writing, or was from a general text which mentioned its type which confirmed its consideration, such as the enjoining of every type of good and the forbiddance of all the acts of evil, then in these two situations it is not considered to be from Al-Masalih Al-Mursalah. Rather, Al-Masalih Al-Mursalah is forwarded from the evidence, in other words, there is no evidence found upon it; instead, it is derived from the generality of the Shari’ah being sent to gain the interests and repel the harms. However, there is a difference made between the Shari’ah interests and those which are not legitimate since the Shari’ah interests are those that agree with the intentions (Maqasid) of the Shari’ah, and the interests that are illegitimate are those which contradict the intentions of the Shari’ah. So, Al-Masalih Al-Mursalah that are considered to be a Shari’ah evidence are those which agree with the intentions of the Shari’ah, and those which contradict with the intentions of the Shari’ah are not considered to be from Al-Masalih Al-Mursalah; consequently, it is not a Shari’ah evidence. Hence, Al-Masalih Al-Mursalah are those that the Shari’ah texts indicate its consideration in a general manner, and accordingly, specific Shari’ah rules are built upon its basis when there is no Shari’ah text regarding the event or anything which is comparable to it, in which case the interest would be the Shari’ah proof.

“以及心被争取的人们。”（TMQ 9:60）他（SWT）只是在阐明“illah”：将财富分给穷人而非富人，是为了防止财富在富人之间流转；他也在阐明，穆圣ﷺ与宰乃卜（Zaynab）结婚的“illah”，是为了说明人可以娶其养子之妻的合法性；他还阐明，为了争取人心而给予财物的“illah”，是国家需要将人心凝聚在一起。因此，他（SWT）并未将此解释为利益；相反，这些解释只是说明某一特定事项是某一特定律例的“illah”，完全不考虑其中是否有利益，也绝不予以任何顾及。那么，从什么角度可以说，沙里亚指明了这些理由，从而使利益可以被视为沙里亚的证据呢？如果沙里亚经文没有指明沙里亚是为了利益而降，无论是在对律例的指示上，还是在对律例之“illah”的指示上，那么就不可能说经文指明了特定的利益或其类别，因为沙里亚经文中对此根本没有任何记载。由此可见，所谓沙里亚经文是作为特定利益或其类别之证据的说法是站不住脚的；并且由更进一步的推理可知，那些未被沙里亚经文提及、表明其属于沙里亚证据的利益，同样不被视为有效。

“And those whose hearts are to be conciliated.” (TMQ 9:60), He (swt) is only clarifying the ‘Illah distributing the wealth amongst the poor rather than the rich in order to prevent the circulation of the wealth amongst the rich, and clarifying that the ‘Illah of marrying the Messenger (pbuh) to Zaynab is to be an explanation of the permissibility for someone to marry his adopted son’s wife, and clarifying that the Illah for giving (money) in order to attract the hearts is the need for the State to bind the hearts together. So, He (swt) did not explain that this was benefit; rather, the explanation was that a specific issue was the Illah of a specific rule without any regard given to the interest or its absence and absolutely without any consideration to it. So, from what angle then, can it be said that the Shari’ah indicates these reasons such that the interests can be considered Shari’ah evidence? If the Shari’ah texts did not indicate that the Shari’ah came for the interest, neither in its indications upon the rule nor in its indications for the Illah of the rule, then it is not possible for it to be said that the texts indicate specific interests or by their type since nothing at all came regarding this in the Shari’ah texts. Accordingly, the invalidity of the claim that the Shari’ah texts came as a proof for specific interests or by their type has become clear, and from greater reasoning, the interests that were not mentioned by a text from the Shari’ah that indicates that they are from the Shari’ah evidences are also not considered.

关于以“马沙利哈穆尔赛拉”（Al-Masalih Al-Mursalah）从沙里阿的意图中推导而来的问题：沙里阿的意图并不是可以被直接理解的沙里阿经文，因此从中所理解的内容不能被视为证据，故而以之作为沙里阿律例的依据并无价值。此外，所谓沙里阿的意图究竟指什么？如果其所指的是经文所表明的内容，例如禁止通奸、偷窃、杀人、饮酒以及叛教，那么这并不是沙里阿的意图，而是对信徒行为的律例，除经文的字面指示之外，不必再作延伸。因此，从经文中所理解出的这一律例不能被视为沙里阿证据，而只是一条沙里阿规定。由此推论，人心凭想象所设定的、所谓沙里阿的目的，更不能被视为沙里阿证据。那么，又怎能把仅凭想象而构想出的沙里阿目的当作沙里阿证据呢？基于此，从沙里阿意图中所理解出的内容，其有效性是完全无效的。

With respect to Al-Masalih Al-Mursalah being understood from the intentions of the Shari’ah, the intentions of the Shari’ah are not a Shari’ah text which can be understood such that what is understood from them can be considered a proof, and so there is no value in what is understood from them as far as using them as evidence for Shari’ah law. Furthermore, what is meant by the intentions of the Shari’ah? If what is intended by it is what the texts indicate, such as the prohibitions of fornication, stealing, murder, alcohol and apostasy from Islam, then this is not an intention of the Shari’ah; rather, it is the law for the actions of the worshipper and there is no looking beyond the indication of the text. So, there is no place to consider that this law which was understood from the text is Shari’ah evidence; rather, it is a Shari’ah rule. By greater reasoning, there is no account given to what the mind imagines from that law as being the purpose of the Shari’ah to be from the Shari’ah evidences. So, how would you consider that which is conceived from the mere imagination as a purpose of the Shari’ah to be a Shari’ah evidence?!! Based upon this, the validity of what is understood from the intentions of the Shari’ah is completely and utterly void.

因此,从这些证据中推导出的每一条规则,在主张所据证据属于伊斯兰教法证据的人看来是教法规则,在反对者看来同样如此。然而,它只对推导出该规则的人具有约束力,而对持不同理解的人没有约束力。这就像从经文中推导出的规则:对经文理解的差异,并不会使推导出的规则在推导者眼中成为教法规则,而在反对此理解者眼中成为不合法的规则。相反,只要从经文中能够得出这种理解的可能性存在,它对所有穆斯林而言都是教法规则;换言之,只要存在疑似证据(Shubhat Daleel),情况便是如此。然而,它并非对所有穆斯林都具有约束力的规则,而只对推导者本人和效仿他的人具有约束力,对反对者则无约束力。尽管如此,无论如何它都是教法规则。同样,从某一证据中推导出的规则与从经文中推导出的规则完全相同:只要疑似证据存在,它对所有穆斯林而言都被视为教法规则,无论对于那些认为该证据属于教法证据的人,还是对于那些不认为它属于教法证据的人。例如前面那些证据,我们已经反驳了它们作为教法证据的地位。

Hence, every rule deduced from any of these evidences is considered a Shari’ah rule in the eyes of those who advocate that what the rule has been deduced from is part of the Shari’ah evidences and in the eyes of those who oppose it as well. However, it is only a binding Shari’ah rule upon the one who deduces it and not binding upon the one who holds a different understanding. This is like the rules deduced from the texts since the difference in understanding the text does not make the deduced rule a Shari’ah rule in the eyes of the one who deduced it and illegitimate in the eyes of the one that opposed him or her in this understanding. Rather, it is a Shari’ah rule from the viewpoint of all the Muslims as long as the possibility of reaching such understanding from the text is possible; in other words, as long as the doubted evidence (Shubhat Daleel) exists. However, it is not considered a binding rule upon all the Muslims but only binding upon the one who has deduced it and the one who has emulated it, and not binding upon the one who has opposed it. Nonetheless, in any case it is a Shari’ah rule. Likewise, the rule deduced from an evidence is exactly like the rule deduced from the text; it is considered a Shari’ah rule in the eyes of all the Muslims whether for those who considered it a Shari’ah evidence or for those who did not consider it a Shari’ah evidence, provided the doubted evidence is existent, such as in the case of the previous evidences which we refuted their consideration as the Shari’ah evidences.