第82条
Article 82
可以根据案件的类型来划分法院的等级。因此,某些法官可以被指派处理特定等级的案件,而其他法院则被授权审理其他案件。
It is permissible to vary the grades of courts in respect to the type of cases. Some judges may thus be assigned to certain cases of particular grades and other courts to be authorised to judge the other cases.
其依据在于:司法权是由哈里发委派的,它与代理( wakalah)一样,二者之间并无区别。司法权是代理的一种形式,而代理既可以是一般的,也可以是特定的。因此,允许任命一名法官只处理特定的案件,并禁止其处理其他任何案件。也允许另外任命一名法官审理各类案件,包括上述案件,甚至在同一地区,或审理上述以外的案件。因此,允许设立不同层级的法院,穆斯林在第一个时代就已有此制度。 Al-Mawardi在其著作《苏丹的律例》(Al-Ahkam Al-Sultaniyyah)中写道:"Abu ‘Abd Allah Al-Zubayr说:‘此地巴士拉的统治者过去会在中央清真寺任命一名法官,并称他为清真寺法官。他只审理涉及二十第纳尔和二百迪拉姆以下数额的纠纷,并判定赡养费(Nafaqah)。他不会越出自己的权限,也不会超出所委托的职责。’" 先知穆罕默德ﷺ曾在单一案件中委派他人代行司法,例如他委派了阿穆尔·本·阿绥(Amr b. Al-‘As);他也曾委派他人代理其在某一省份的全部案件的司法,例如他委派阿里·本·艾布·塔利布(ra)负责也门的司法。这表明,设立专门性和一般性的司法机构是允许的。
Its evidence is that the judiciary is delegated by the Khalifah and it is just like proxy, with no difference between them. The judiciary is one form of proxy, and it is permitted for proxy to be general or specific. Therefore, it would be permitted to appoint a judge to deal in specific cases only, and prohibited from dealing with any other ones. It is permitted to appoint another judge to look into all sorts of cases including those mentioned, even in the same location, or to look into cases other than those mentioned. Therefore, it is permitted to have various levels of courts, and Muslims had this in the first era. Al-Mawardi wrote in his book entitled Al-Ahkam Al-Sultaniyyah: “Abu ‘Abd Allah Al-Zubayr said: ‘The leaders here in Basra used to appoint a judge at the central mosque, and they called him the judge of the mosque. He used to judge in disputes involving amounts below twenty Dinars and two hundred Dirhams, and he used to impose maintenance (Nafaqah). He would not exceed his boundaries and nor the duties entrusted to him’”. The Messenger of Allah (pbuh) delegated others on his behalf in the judiciary in a single case such as when he delegated Amr b. Al-‘As, and he delegated others on his behalf in the judiciary in all of the cases in a particular province as he did when he delegated ‘Ali b. Abi Talib (ra) over the judiciary in Yemen. This indicates that it is permitted to have a specific and general judiciary.