天课是为特定用途而征收的义务，由真主规定，课于穆斯林的财产之上，由伊斯兰国家征收和分配。在伊斯兰国家中，是否允许在天课之外再征收其他税赋？抑或天课是穆斯林财产上唯一的义务，而且不得与其他税赋并存？我们将在以下三节中研究：允许在天课之外征收税赋的证据、征收此类税赋的必要条件，以及反对者提出的异议。

Zakah is levied for particular purposes, decreed by God, on the wealth of Muslims, and is collected and distributed by the Islamic state. In the Islamic state permitted to impose other taxes in addition to zakah? Or, is zakah the only duty on the wealth of Muslims? A duty that must not co-exist with other taxes. We will study in the following three sections the evidence that allows imposing taxes in addition to zakah, the necessary conditions for levying such taxes, and the objections raised by opponents.

1. 社会团结是必需的 无需重复前面章节中讨论过的、穆斯林社会成员之间社会团结的重要性。然而，穆斯林之间的团结与兄弟情谊本身就是天课的基础，同时也为在需要时征收其他税赋奠定了根基。

1. Social solidarity is a must There is no need to repeat talking about the importance of social solidarity between members of the Muslim society, discussed in previous chapters. However, solidarity and brotherhood of Muslims, that are the foundations for zakah itself, also lay the grounds for imposing other taxes when the need arises.

2. 天课的分配是预先确定的 由于天课只能用于本书第四部分所述的八类人，穆斯林学者认为天课必须拥有独立的预算。例如，艾卜·优素福说："哈拉only税（kharaj）的收入不得并入天课（sadaqat）的收入，因为哈拉只税是为所有穆斯林服务的，而天课只能用于真主所规定的那些类别。"1 学者们通常同意："天课不得用于修建桥梁、公路、运河、清真寺、学校等。"2

2. Distribution of zakah is pre-determined Since zakah can only be expended to the eight categories described in part four of this book. Muslim scholars argue that zakah must have an autonomous budget. Abu Yusuf, for example, says "The proceeds of kharaj must not be added to the proceeds of sadaqat, since kharaj is to serve all Muslims while zakah must only serve the categories named by God."1 Scholars usually agree that "Zakah must not be spent on building bridges, highways, canals, mosques, schools, etc."2

《斋戒与天课之法学》（第二卷），优素福·盖尔达维博士 298

Fiqh al Zakah (Vol. II), Dr. Yusuf al Qardawi 298

无人能否认，不得以天课支付的开支中包括某些公共必需事务，例如学校和清真寺，而这些都需要财力支持。若哈拉只税（kharaj）、战利品（ghanimah）和法伊（fai'）的收入足够，便无需征收其他税款；但若这些来源不存在或收入不足，则需要征收其他税款，因为伍苏尔（usul）原则规定："若无某事则义务无法履行，则该事本身亦成为义务。"我们在本书前文已经看到，沙斐仪派不允许将天课支付给正规军，而只限于支付给自愿参战者。当艾勒·纳瓦维面临其他资源不足以供养正规军的问题时，他与许多其他沙斐仪派学者一样建议，应责成富裕的穆斯林承担供养正规军的费用。3

No one can argue with the fact that services for which zakah cannot be appropriated include certain public necsseities, like schools and mosques, and these require financial resources. If the proceeds of kharaj, ghanimah, and fai' are sufficient, there is no need for imposing taxes, but if such sources do not exist or do not yield sufficient amount, other taxes need to be levied, since the rule of usul states, "That without which an obligation cannot be fulfilled is also obligatory." We have seen earlier in this book that Shafi'ites do not allow payment of zakah to the regular army, and restrict payment to voluntary fighters. When al Nawawi was faced with the problem of insufficiency of other resources to finance the regular army, he suggested, as do many other Shafi'ites, that rich Muslims be obligated to finance the regular army.3

3. 伊斯兰教法的一般原则 除天课之外征收税款的合法性，不仅取决于上述"无法履行义务之物，其本身亦成为义务"这一规则。伊斯兰教法的一般规则和原则也允许在有需要时征收税款。体现这种可能性的原则包括：国家有责任照顾穆斯林的公共利益；"避免损害优先于谋取利益"的规则；"为了更大的利益可以牺牲较小的利益"的规则；以及"为防止公共损害，可以容忍个人的损失"的规则。4

3. General rules in Shari'ah The permissibility of imposing taxes besides zakah does not only depend on the above mentioned rule stating, "That without which an obligation cannot be fulfilled is obligatory." The general rules and principles of Shari'ah allow the levy of taxes when need arises. Principles which imply such possibility include the state's responsibility to care for the public interests of Muslims, the rules that "avoiding evil has priority over bringing benefits" and "small benefit can be sacrificed for the great benefit," and " individual harm may be tolerated in order to prevent common harm."4

毫无疑问,应用这些一般原则为征税留有余地。事实上,从这些原则可以推出,在某些情况下,为了维护社会和国家的重要利益,防止危害和危险,必须征收赋税。如果一个不拥有丰富矿产资源的当代伊斯兰国家没有税收,它必将因缺乏内部服务而在极短时间内覆灭,更不用说外部的军事威胁了。出于这些源自伊斯兰教法原则的理由,穆斯林学者认为,当需要防止危险或实现重要利益时,由伊斯兰政府征收的赋税来充实公共国库是有义务的。

Undoubtedly, application of these general rules leaves room for imposing taxes. In fact it may be deducted from these rules that texts, on certain occasions, must be imposed to secure important interests of society and state, and to prevent harm and danger. If a contemporary Islamic state, that does not have huge mineral resources, is left without taxes, it is bound to be wiped out in a very short time because of lack of internal services, let alone outside military dangers. For such reasons derived from Shari'ah principles, Muslim scholars opine that financing the public treasury with taxes imposed by the Islamic government is obligatory when there is need to prevent a danger or fulfill an important benefit.

阿勒·哥扎利（Al Ghazali）是沙斐仪派（Shafi'ite）学者，以其严格的观点著称。他论及公共财产时说："当没有公款，国家收入不足以支付军队所需，并且有敌人侵犯穆斯林土地或邪恶的叛乱者可能出现的危险时，伊斯兰政府可以向富人征收足以支付士兵费用的税赋，因为我们知道这样一条原则：当必须在两种恶或两种害之间作出选择时，应当避免其中更为危险的那一种。"

Al Ghazali, a Shafi'ite known for his restrictive views, when it comes to public funds, says, "when there are no funds and the state income is not sufficient to pay for army needs, and there is danger that an enemy may transgress against the Muslim land or that evil rebels may arise, the Islamic government is allowed to impose on the rich taxes sufficient to pay for the soldiers, since we know the rule that when one must choose between two evils or two harms, the most dangerous of them must be avoided.

每一种由富人作出的牺牲,包括牺牲生命与财产,都比伊斯兰社会因缺乏抵御侵略或罪恶叛乱的手段而遭受的损害要小。5 马立克学派学者沙特比(Al Shatibi)说:如果我们碰巧拥有一个需要增加士兵数量以保卫穆斯林边境与土地的伊斯兰政府,而国库已经空虚,那么统治者在其公正的前提下,有权向富人征收足以满足国防需要的款项,直到国库重新有资金为止。政府有权对农业或其他产品征收此类款项。早期世代的学者中没有此类主张的记载,原因在于他们那个时代国库充盈。如果伊斯兰政府不征收此类税款,其力量将会消失,我们的国家将暴露于异教徒的侵略之下。政府与国防的支柱是军队。那些逃避缴纳应征税款的人应当明白,如果军队被撤销,他们自身将受到伤害,他们的全部财产,而不仅是一部分,都会被侵略者没收。若将这样巨大的伤害与纳税的损害相比较,没有人能够争辩说后者不是小得多。6

Every sacrifice made by the rich including the sacrifice of lives and wealth, is a lesser harm than lack of means to defend the Islamic society against aggression or sinful rebellion."5 Al Shatibi, a Malikite, says, If we happen to have an Islamic government that needs to increase the number of its soldiers in order to defend Muslim borders and lands and the treasury is empty, the leader, provided he is just, has the right to impose on the rich what is sufficient to fulfill defense needs, until the treasury has funds again. The government has the right to make these impositions on agriculture or other products. The reason no such opinion is reported from the scholars of the early generations is the abundance of treasury funds during their times. If the Islamic government does not impose such taxes, its strength would vanish and our country would be exposed to unbelievers' aggressions. The backbone of the government and defense is the army. Those who evade the payment of levied taxes would realize that if the army were abolished, they will be hurt personally and all their wealth, not only a part of it, would be confiscated by the aggressors if such enormous harm is contrasted with the harm of tax payment, no one can argue that the latter is much lesser.6

4. 圣战及其财务需求 伊斯兰教规定，圣战既要动用人的生命，也要动用人的财富。真主说："你们或轻或重都应出征，并以你们的财产和生命为主道而奋斗。"7"真正的信士，只是那些信仰真主和使者、此后毫不怀疑、并以自己的财产和生命为真主之道而奋斗的人，他们才是诚实的人。"8"你们应当信仰真主和他的使者，并以你们的财产和生命为真主之道而竭尽全力奋斗。"9

4. Jihad and its financial requirements Islam prescribes jihad on both persons and their wealth. God says, "Go ye forth (whether equiped) lightly or heavily, and strive and struggle with your wealth and your persons,"7 "Only those true believers who have believed in God and His Apostle and have never since doubted but have striven with their wealth and their persons in the cause of God, such are the sincere ones,"8 "That ye believe in God and His Apostle and that ye strive (your utmost) in the cause of God with your wealth and your persons,"9

"你们要为主道施舍财产，不要自己把自己推入毁灭。"10 这些经文都命令人为主道而花费财产。以财务圣战是一种本身就有的义务，如同天课的义务一样。伊斯兰政府有权决定每个人在这种财务圣战中应当承担的份额。伊本·泰米叶引用《Ghiyath al Umam》的作者所说的话，其要旨也正在于此。

"And spend of your substance in the cause of God, and make not your own hands contribute to your destruction."10 All these verses ordain spending of wealth and property in the way of God. Jihad in wealth is an obligation in itself, like the obligation of zakah. The Islamic government has the right to determine the share of each person in this financial jihad. This is also the essence of a quotation by Ibn Taimiyah from the author of Ghiyath al Umam.

如今，军备与军费的开支十分巨大。而且，一个国家的强大并不仅仅取决于其军队的规模。国家的实力需要在多个领域占据优势，包括科学研究、工业和整体经济。这些都需要充足的财力支持，而这些财力只有通过征收赋税才能获得。这些赋税是一种财产上的圣战（jihad），每个人都借此为国家的强大与防御作出贡献。这样的付出，又会以保护个人自身、他的宗教和他的财产的形式回报于他。

Armament and army expenditures today are huge. in addition to the fact that the might of a nation is not only measured by the size of its army. National strength requires superiority in several areas, including scientific research, industry, and the general economy. All these require abundant financial resources which cannot be secured except by imposing taxes. These taxes are a form of jihad in wealth whereby all individuals contribute to the strength and defense of their state. Such contributions pay back in the form of protection for the individual himself, his religion, and his assets.

5. 利益共享，负担共担 以税收形式征集的资源用于公共服务，这些服务惠及社会的全体成员，例如国防与安全、司法机构、教育、卫生服务、交通、灌溉等。每个人都受益于国家的存在与权力，也受益于它所提供的服务。因此，每个人都必须分担使这些服务得以运作的财政负担。正如每个人都从国家的服务和国家的存在中获益，他或她也有义务缴纳必要的税款，这符合收益应与付出相称的原则。

5. Sharing the burdens as the gains are shared Resources collected in the form of taxes are spent on public services which benefit all members of the society, such as defense and security, judicial institutions, education, health services, transportation, irrigation, etc. Each individual benefits from the presence and power of the state as well as from the services it provides. Thus each must share the financial burden that allows these services to be performed. Just as each individual benefits from the state's services and its presence, he or she is required to pay the necessary taxes, in application of the principle that gains must be comparable to sacrifices.

征收赋税有四个条件：真正的需要、公正的分配、资金的合法使用，以及国家协商机构的批准。

There art four conditions for imposing taxes: True need, just distribution, lawful use of funds, and approval of the shura body of the state.

应当存在确实的需要，使这些服务需要额外的财政资源来筹措，同时国库资金和其他国家资源不足以支付。

There should be real need for the services to be financed by additional financial resources as well as inadequacy of treasury funds and other state resources.

原则上，私人财产受到保护，除zakah之外不应被征收任何税款。除非处于迫切的需要，否则违反这一规定是不合法的。如果不存在这种需要，或者政府拥有其他财政来源，则不允许征收税款。

In principle, private wealth is protected and should not be charged any duties above zakah. It is unlawful to violate this rule except in dire need. If such necessity does not exist or if the government has other financial resources, it is not lawful to impose taxes.

历代的主要学者都曾强调这一条件。有些人甚至主张，必须是国库完全空虚，以防止统治者在无需之时随意征收赋税。伊斯兰历史上也有多次事例表明，当统治者在仍有其他财源的情况下欲征收赋税时，穆斯林学者坚定地站出来加以反对。

Leading scholars have emphasized this condition for centuries. Some go as far as requiring that the treasury be completely empty, in order to deter rulers from imposing taxes without need. Islamic history reveals several instances in which Muslim scholars stood fast confronting rulers who wanted to impose taxes while they still had other resources.

当苏丹古图兹准备军队对抗蒙古人时（当时蒙古人已占领叙利亚大部分地区），他召集了所有学者、法学家和法官，就他能否为圣战征税一事与他们商议。其中有伊兹·丁·本·阿卜杜·萨拉姆和巴德尔·丁·辛贾里。经过讨论，众人一致推举伊兹·丁代表大家发言。他说：“如果敌人侵犯穆斯林的土地，所有穆斯林都有义务参战。在这种情况下，如果公库中没有资金，而你们把自己、你的侍臣和士兵所拥有的金饰衣物以及所有奢华的器具和用品都卖掉，使军中每人只留一匹母马和一件武器，与普通百姓一样，那么你们就可以按照有助于这场圣战的数额向人民征税。但如果你的人马和士兵仍然拥有财产和奢侈的物品，而你却向民众募集钱财——那是不允许的。” 后来，纳瓦维在苏丹扎希尔·拜伯尔斯面前也采取了类似的立场。当苏丹想在叙利亚对抗鞑靼人时，国库资金不足，于是他询问叙利亚的学者，是否可以征税以支持政府和军队抗击伊斯兰的敌人。当时在场的学者都表示赞同，并将认可书面呈给国王。纳瓦维当时不在场，苏丹问是否有学者没有回应他的号召。他们说：“有，就是纳瓦维。”纳瓦维到来后，苏丹请他在其他人的认可书上也签名同意，但纳瓦维拒绝了。当被问及原因时，他说：“我知道你曾是前任统治者班达克达尔的奴隶，那时你一无所有，而真主慷慨地赐予你，使你成为君王。我听说你拥有一千名奴隶，每个人都有一件金饰的衣袍；你还拥有二百名女奴，每人都有一篮珠宝首饰。” "如果你们花费了这一切，而你们的奴隶只穿羊毛衣服，你们的女奴只有自己的衣服，没有任何首饰，那么在此之后，我同意你们向人民征税。"苏丹大怒，下令将纳瓦维逐出城外。纳瓦维服从了，回到自己的村庄纳瓦（位于大马士革以南约五十英里）。当其他一些学者为他说情，苏丹允许他回来时，纳瓦维拒绝了，并宣布："只要宰希尔·拜伯尔斯还在那里，我就不去大马士革。"结果国王一个月后便去世了。 纳瓦维写信给宰希尔解释道："只要国库中有任何形式的财富，无论是钱财、产业、土地，还是任何可以出售的东西，就不允许向人民征收任何东西。所有学者都同意这一点。而如今国库中，感谢真主，已有大量的财产和货物，愿真主永远使其增加。"13

When Sultan Qutuz of Egypt was preparing his troops to fight the Moguls, who by then had occupied most of Syria, he gathered all scholars, jurists and judges to consult with them on whether he could impose taxes for jihad. Among them were Izz al Din bin 'Abd al Salam and Badr al Din al Sinjari. After discussion, the opinion leaders agreed that Izz al Din speak for them. He said, If the enemy transgresses on the lands of Islam, all Muslim are obligated to fight. It is then permissible for you to collect taxes from people in the amount that helps you in this jihad, provided there be nothing in the public treasury and that you sell all gold ornamented clothes and all fancy tools and utensils that you and your courtiers and soldiers own, so that each person in the army has only a mare and a weapon, and all become equal to the common people. As for collecting funds from the public while your men and soldiers still have assets and luxurious things-no, it is not permissible." A similar stand was taken later by al Nawawi before Sultan al Zaher Bibars. When the sultan wanted to fight the Tatar in Syria, he had insufficient funds in his treasury, so he asked scholars in Syria whether he could impose taxes to help the government and the army fight the enemies of Islam. All the present scholars approved and wrote their approval to the king. Al Nawawi was then absent, and the Sultan asked if there were any scholars who did not respond to his appeal. They said, "Yes, there is al Nawawi." When he came, the Sultan asked him to add his approval to those of others, but al Nawawi refused. When asked for a reason, he said, "I know that you were a slave of the previous ruler, Bandaqdar. Then you owned nothing, and God generously gave you and made you a king. I hear that you own one thousand slaves, and each of them has a gold ornamented garment, that you also own 200 female slaves, and each of them has a basket of jewelry. If you spend all that, and your slaves live with woolen garments only, and your slave women keep only their clothes, without any jewelry, after that I approve of your collecting taxes from people." The Sultan was angered and ordered al Nawawi out of the city. Al Nawawi obeyed and went out to his village, Nawa [about fifty miles south of Damascus]. When some other scholars negotiated for his return and the Sultan permitted it, al Nawawi refused and announced, "I will not go to Damascus as long as al Zaher Bibars is there," but the king died after a month.12 al Nawawi wrote al Zaher a letter explaining, "It is not lawful to collect anything from people as long as the treasury has wealth in any form, money, property, land, or anything that can be sold. All scholars agree to this. And the treasury now, praise be to God, has much property and goods, may God always increase it."13

税负必须在人们之间公正分配，使任何人都不会无端地承受过重的负担，而其他人却无合理理由地获得豁免。公正并不要求纳税人之间完全平等，因为对不同的事物给予相同对待，与对相同的事物给予不同对待，同样是不公正的。在将税负分摊给社会中的富裕成员时，必须有客观的标准。

The burden of taxes must be distributed justly among people, so that none is ever-burdened while others are exempted without reasonable cause. Justice does not require equality among taxpayers, since treating equally what is different is as unjust as treating differently what is equal. There must be objective criteria for distributing the tax burden among the rich members of society.

艾布·欧拜德转述，伊本·欧麦尔说：欧麦尔过去向纳巴提人（即前来国内的外国商人）征收油和小麦的半什一税，以鼓励他们把更多此类货物运到麦地那；对豆类则征收一什一税。[14] 据知，欧麦尔所设此税的一般原则是：对外国商人征收一什一税，对属于盟约之民的商人征收半什一税，对穆斯林商人征收四分之一什一税，这一点由阿奈斯以及萨伊卜·本·叶齐德所转述。萨伊卜·本·叶齐德说：在欧麦尔时期，我曾任麦地那市场的税务官，我们过去向纳巴提人征收一什一税。[13]17

Abu 'Ubaid reports from Ibn 'Umar that 'Umar used to collect from the Nabatites [foreign merchants who used to bring goods into the country] half a tenth on oil and wheat, to encourage them to bring more of these goods to Madinah, and one tenth on beans."14 It is known that the general principle of this tax laid by 'Umar was to collect one-tenth from foreign merchants, one-half of a tenth from merchants who were people of the Pledge, and one-fourth of a tenth from Muslim merchants,13 as reported by Anas and by al Sa'ib bin Yazid, who says, I was a commissioner to the Madinah market during 'Umar's time, and we used to collect one-tenth from the Nabatites."17

但就油和小麦而言,据称'Umar为了一个重要的经济目的,将税率降至百分之五,即鼓励进口当时迅速发展的首都麦地那所需的粮食。'Umar的这一举措表明,税率可以根据其所要实现的经济目标而调整,无论是在贸易、进出口、工业还是农业领域。

But with regard to oil and wheat, 'Umar apparently reduced the tax to five percent for an important economic reason, i.e. encouraging food imports that were required in the fast growing Madinah, capital of the state. This action of 'Umar indicates that tax rates may be changed according to the economic target they aim at achieving, whether in trade, import and export, industry, or agriculture.

此外,伊斯兰经济制度的目标之一是缩小穆斯林之间的经济差距,分散财富的积累,使财富和收入不致仅在富人之间流转。如果除了累进税之外没有其他手段可以实现这一目的,那么这种税收便可以获得伊斯兰制度的认可与支持。不过,必须牢记,税收的个人层面也应加以考虑,包括如前所述,将生活开支、家庭供养和债务从应税范围中予以豁免。

Furthermore, since one objective of the Islamic economic system is to reduce economic differences between Muslims and decentralize wealth accumulation so that wealth and income do not circulate among the rich alone, if there are no other means except progressive taxes to achieve such a purpose, such taxes can be blessed and supported by the Islamic system. One must not forget that the personal aspects of taxes must be taken into consideration. These include the exemption of living expenses, family provisions, and debts from taxes, as mentioned earlier.

税款的征收只为服务于国家与民众。因此，税款的收入绝不能用于统治者及其亲信的任性与私欲，不能用于实现独裁的目的或个人的野心。真主在详细规定天课的分配时确立了这一原则，没有把它交由任何统治者来决定，即便是先知也不例外。哈里发四大正统者以及伟大的圣门弟子们，对公共财产的分配极为严格。 伊本·萨阿德在《阶层志》中转述萨勒曼的话：欧麦尔·本·哈塔卜曾问道："我是国王还是哈里发？"萨勒曼回答说："如果你从穆斯林的土地上征收哪怕一个迪拉姆，或多或少，却将其用于非其应有的正当用途，那么你就是国王，而不是哈里发。"欧麦尔听后哭了。[18] 苏夫扬·本·艾卜·阿尔-阿加说：欧麦尔·本·哈塔卜曾问："凭真主起誓，我不确定，我究竟是哈里发还是国王？如果我是国王，那确实是一件可怕的事。"有人回答说："信士的长官啊，两者之间确有很大的区别。"欧麦尔问："什么区别？"那人说："哈里发只取其应得之物，也只将其用于正当之处。您，赞美真主，正是这样的人。而国王则肆意压迫，从这里取，给那里。"欧麦尔沉默不语。[18] 泰伯里转述：欧麦尔的一位亲属向欧麦尔请求某项赏赐。欧麦尔拒绝了他，并让他离开。之后有人对欧麦尔说："信士的长官啊，此人向您请求，您却拒绝了他，还让他出去。"欧麦尔回答说："他确实请求我把真主的财产（即社会与国家的财产）给他。如果我这样做，我还有什么借口呢？那样我将以背信的君王之身去见真主！"19

Tax collection is aimed only at serving the nation. Thus tax proceeds must not be used for the whims and desires of the rulers and their inner circles, or to fulfill dictatorial purposes or individual ambitions. God establishes this principle when He details zakah distribution, not leaving it to be determined by any ruler, not even a Prophet. The Wise Successors, along with the great Companions, were extremely strict about the dispersement of public funds. Ibn Sa'd in his Tabaqat reports from Salman that 'Umar bin al Khattab once asked "Am I a king or a caliph?" Salman answered, "If you collect one single dirham from the Muslim land, or less, or more, and spend it on anything other than its right and proper dispersement, then you are a king and not a khalifah."Umar, hearing this, wept"18 Sufyan bin Abi al 'Awja' says, "Umar bin al Khattab once asked 'By God, I am not sure, am I a khalifah or a king? If I am a king, this is indeed an awful thing,' A man answered, 'O Prince of Believers, there is indeed a big difference between them.' 'Umar asked, 'What?' The man said, 'The khalifah does not take but what is right and does not spend it except on what is right. You, praise be to God, are of that kind. Kings oppress arbitrarily. They take from this and give to that.' 'Umar remained silent."18 Al Tabari reports, "A man who was a relative of 'Umar, asked Umar for some grant. 'Umar turned him down and asked him out. Then someone spoke to 'Umar about him, 'O Prince of Believers, so-and-so asked you but you turned him down and ordered him out.' 'Umar answered, He indeed asked me to give him from the property of God [meaning the property of the society and state]. If I do so, what would be the excuse? Then I would meet God as a betraying king!'"19

由于伊斯兰法保护私有财产,对个人征收任何税费都必须经过国家的协商机构批准。仅由统治者本人或其行政专员作出此类决定是不够的。《古兰经》和圣训都要求协商(舒拉)。真主称赞"那些听从主的召唤、谨守拜功、凡事以协商解决、并以我所供给他们的财物施舍的人"。 舒拉与接受真主的启示、谨守拜功和为主而施舍相连。这节经文早在麦加时期就确立了伊斯兰制度的基本原则。后来在麦地那,真主降示了这节经文:"凡事你当与他们协商,你决定以后,就当信托真主。" 这节经文启示于麦地那,即伊斯兰法律和生活的细节逐步确立的时期,为这一社会的政治体制提供了总体基础。这节经文是在乌候德战役之后降示的。战前,先知曾与众门徒协商:是留在麦地那,等敌人打到城里来,还是出城迎战入侵者。多数门徒主张出城迎战,而先知的意见是留守麦地那并加固防御。然而,先知遵从了多数人的意见,出城作战,结果战败,约七十位杰出的门徒殉难。即便如此,这节经文仍然重申协商是伊斯兰制度不可或缺的组成部分,仿佛在说:即使发生了遵从多数人意见所导致的结果,你们仍须继续与他们协商,并通过协商作出决定。

Since private property is protected by Islamic law, any levy on individuals must be approved by the consultative body of the state. It is not sufficient that the ruler alone or his administrative commissioners make such a decision. Shura consultation is required by Qur'an and Sunnah. God commends ". . . those who hearken to their Lord and establish prayer, who conduct their affairs by mutual consultation, and who spend out of what We bestow on them for sustenance."20 Shura is associated with accepting the message of God, establishing prayer, and spending for His sake. This verse establishes the essential principles of the Islamic system as early as the Makkan period. Later in Madinah, God sent down the verse, "And consult them in affairs, then when thou hast taken a decision, put thy trust in God."21 Revealed in Madinah, in the era when details of Islamic law and life were laid down, this verse gave the general foundations for the government structure of this society. This verse was revealed just after the battle of Uhud, before which the Prophet had consulted his Companions on whether to stay in Madinah and let the enemy reach there, or to go out and fight the invaders outside the city limits. The bulk of Companions wanted to go out, while the Prophet's opinion was to stay in Madinah and fortify it, but following the majority, he went out and the result was a defeat, about 70 great Companions were killed. Even despite that, the verse reaffirmed that consultation is an essential part of the Islamic system, as if to say: You must continue to consult them and make your decisions by consultation, even after what happened as a result of following the majority's opinion.

先知在没有得到真主关于某事的明确启示时,总会就所有重要事务与门徒们协商。在伊斯兰史上第一场战役白德尔战役时,先知征询了迁士和辅士的意见:是否应该拦截古莱什人的商队,以及在那场战斗中应在何处扎营。在乌侯德战役中,他同样基于协商做出决定。在壕沟战役时,先知ﷺ想接受异教徒提出的和约,和约要求他把麦地那的三分之一农产品交给他们,但主要的门徒们不同意,于是他拒绝了这一提议。在胡代比亚那天,他决定克制兵器、不与敌人交战,也是基于协商,因为艾卜·伯克尔对他说:"我们来这里不是为了打仗,我们只是来拜访真主的天房。"当他的妻子阿伊莎遭到诬告时,他也征询了穆斯林的意见,说:"穆斯林们啊,请给我提出意见,对那些诬蔑我妻子的人,我该怎么办?"他还就如何处理阿伊莎的事征询了阿里和乌萨玛的意见。22 伊本·凯西尔评论道:"先知ﷺ常就战役和其他决定与门徒们协商。法学家们对此存在分歧:这对他来说是必须的,还是仅仅是真主所推荐的,以使门徒们满意。"23

The Prophet used to consult his Companions on all matters of substance whenever he was not given clear revelation from God about the matter. At the time of Badr, the first battle in Islam, the Prophet asked the opinion of both the Muhajirin and Ansar on whether they should seek out the Quraish caravan and where to camp in that battle. In the battle of Uhud as well, he based his decisions on consultation. At the battle of al Ahzab, the Prophet (p), wanted to accept the peace treaty offered by the unbelievers, which required that he give them one third of the produce of Madinah, but leading Companions did not accept, so he refused that offer. On the day of al Hudaibiyah, he based his decision to hold back the weapons from fighting on consultation, for he was told by Abu Bakr, "We did not come here to fight, we came only to visit the house of God." When his wife ''A'ishah was accused, he also consulted Muslims, saying, "O Muslims, give me your opinion, what should I do with those who accuse my wife?" and consulted 'Ali and Usamah on how to deal with ''A'ishah.22 Ibn Kathir comments "The Prophet (p) used to consult the Companions on battles and for other decisions. Jurists dispute whether this was obligatory for him or only recommended (by God) in order to keep them happy."23

答案无疑是肯定的，理由在于：先知过去在协商之后，会接受大多数同伴的意见。伊本·凯西尔（Ibn Kathir）提到，伊本·马尔达瓦伊（Ibn Mardawaih）转述阿里的话说：“有人问真主的使者（ﷺ）关于经文‘当你决定了的时候，你就当信赖真主’的含义，他回答说，这意味着：‘与有见识的人协商，然后遵从他们。’”如果基于协商（舒拉）所作出的多数人的决定对政府没有约束力，那么舒拉就失去了意义。这等于是对协商的嘲弄，即统治者征询人们的意见，然后却不顾多数人的意见，我行我素。

The answer is certainly affirmative, on the grounds that the Prophet used to accept the opinion of the majority of his Companions after consultation. Ibn Kathir mentions that Ibn Mardawaih reports that 'Ali says, "The Messenger of God (p) was asked about the meaning of the verse, 'Then when thou hast taken a decision . . .' and he answered that it meant 'consult people of opinion and then follow them."24 If the majority's decision based on consultation (shura) is not binding on the government, shura looses its meaning. This makes a mockery of consultation, whereby rulers consult people and then do what they want, regardless of the majority opinion.

此外，穆斯林可以通过立法使协商（shura）的结论始终具有无可争议的约束力，即

Moreover, Muslims can make shura always indisputably binding by legislation, i.e.

在宪法中纳入这样一项条款：领袖经选举产生，但条件是多数人的意见对政府和国家元首具有约束力。先知ﷺ说：穆斯林必须履行他们的契约条件。"25 诚实履行此类条件对政府具有约束力，这一点毫无疑问，无论法学家对于不附带此类条件的协商（shura）究竟只是参考性的还是具有约束力的，持何种观点。

incorporating such a clause in the constitution, whereby the leader is elected on the condition that the majority's view shall be binding on the government and the head of state. The Prophet (p) says Muslims are bound by their contractual conditions."25 Honest fulfillment of such conditions are binding on the government, without the slightest doubt, regardless of jurist opinions on whether shura, when unassociated with such conditions, is only informative or is binding.

经文并未明确指出磋商（舒拉）应当针对哪些事务。毫无疑问，经文中的“事务”一词是泛指，涵盖一切事务；但其中最重要的，是那些关系到穆斯林社会及其未来的事务。当然，税收的重要性足以使其需要进行磋商。

The verses do not specify on what affaire shura is required. No doubt the words "matters" or "affairs" in the verse are general and include all affairs, yet the most important are those affairs that affect the Muslim society and its future. Certainly, taxes are of such importance as to require consultation.

有些学者认为,除天课(zakah)之外,征收任何其他税款都是不合法的。他们主要以三点论据支持其观点:第一,"财产上除天课外别无义务"这一原则,是法学家们广为人知的common rule。第二,私有财产受到保护,对其征收任何费用都必须有经文依据。先知ﷺ说:"在保卫自己财产时被杀的人,是殉道者。"26因此,未经穆斯林本人同意而取走他们私有财产的任何部分,都是不合法的。第三,有若干圣训否定对民众征收苛捐,并禁止征收什一税['ushr],例如下面这些:

Some scholars believe it is unlawful to impose any taxes besides zakah. They use three main arguments to support their views: First, the rule that nothing is obligated on wealth except zakah is commonly know among jurists. Second, private property is protected and any charge on it must be supported by a text. The Prophet says, "He who is killed while defending his wealth is a martyr."26 It is, therefore, unlawful to take any part of Muslims' private property without their consent. Third, several sayings discredit levies on people and prohibit the collection of tenth ['ushr], such as the following:

Abu al Khair说,埃及总督Maslamh bin Mukhlid曾向Ruwaifi' bin Thabit提议担任“十一税”征收官一职。Ruwaifi'拒绝了,并说:“我听到真主的使者ﷺ说:‘税吏在火狱之中。’”27 'Uqbah bin 'Amir称,他听到真主的使者ﷺ说:“税吏不入天堂。”28 尽管这两段圣训受到圣训学者的批评,但它们得到了穆斯林(Muslim)所载的一段话的支持。那段话出自一个通奸后被石击而死的已婚妇人的故事末尾。先知ﷺ说:“她的悔罪如此真诚,若是一个税吏做出同样的悔罪,他必定会得到宽恕。”这表明税吏的罪过实际上比通奸妇人的罪过更为严重。此外,还有数段圣训谴责“十一税”征收者,进一步佐证了这一点。虽然这些圣训都达不到“良好”或“正确”的级别,但它们相互支持:al Tabarani在其《al Mu'jam al Kabir》中转述,'Uthman bin Abi al 'As称,先知ﷺ说:“真主降临近于祂的被造物,并宽恕每一个求饶的人,除了以身体谋生的娼妓,以及‘十一税’征收者。”29 Ibn al Athir在其《al Nihayah》中解释说,“十一税”征收者即税务征收员。30 Al Bighawi补充道:“税吏是从经过他身边的商人那里征收一种名为‘十一税’的税款的官员。”31 Al Mundhiri则补充说:“如今,他们在征收一种名为‘十一税’的税,此外还有其他无名的税款,他们非法地收取这些税款。”

Abu al Khair says "Maslamh bin Mukhlid, who was governor of Egypt, offered Ruwaifi' bin Thabit the position of 'ushr commissioner. Ruwaifi' refused, saying, "I heard the Messenger of God (p) say, 'Levy collectors are in the Fire.'"27 'Uqbah bin 'Amir says he heard the Messenger of God (p) say, "Levy collectors do not enter Heaven."28 Although these two sayings are criticized by hadith critics, they are supported by a saying reported by Muslim at the end of a story about a married woman who committed adultery and was stoned. The Prophet said, "She made such sincere repentance that if similar repentance was made by a levy collector, he certainly would be forgiven." This shows that the sin of levy collectors is in fact more severe than that of the woman who committed adultery. This is further supported by several sayings that censure 'ushr collectors. Although none of these sayings reach the level of good or correct, they support each other: Al Tabarani in his al Mu'jam al Kabir reports from 'Uthman bin Abi al 'As that the Prophet (p) says, "God descends close to his creatures and forgives anyone who asks forgiveness, except a prostitute [who earns] by her body, and a 'ushr collector."29 Ibn al Athir in his al Nihayah explains that an 'ushr collector is a tax collector.30 Al Bighawi adds, "A tax collector is the officer who collects from merchants who pass by him a tax called 'ushr."31 Al Mundhiri adds, "Nowadays, they collect a tax named 'ushr, in addition to other nameless taxes that they take unlawfully.

伊斯兰教对私有财产的保护，与对这种财产征收某些义务并不矛盾。穷人、弱者和贫困者，基于人类与宗教上的兄弟关系，对富人的财富享有权利，正如我们在学习天课的理论基础时所说明的那样。社会对私有财产也享有权利，因为个人只能在社会的框架内获取财富，而且社会以这样或那样的方式为个人财产的获得做出了贡献；没有社会服务，城市居民的生活也将极为不便。在这一切之前，真主对私有财富享有权利。祂是造物主，是财富真正的所有者。财物首先是真主的财产，人只是祂的代理人。

The protection of private ownership in Islam is not contradictory to charging certain dues on this ownership. The poor, weak, and needy, have right on the wealth of the rich based on their brotherhood in humanity and in religion, as was shown when we studied the theoretical foundation of zakah. Society also has rights on private property, since individuals earn their wealth only in the framework of society, and one way or another, society contributes to the earning of individual property, and since without social services, life would be very inconvenient for urban people. Before all this, God has rights on private wealth. He is the Creator and true Owner of wealth. Goods are in fact God's property before anything else, and people are merely vicegerents.

如果在伊斯兰社会中，存在着即便用尽所有天课收入也无法满足其需要的贫困者；如果存在着军事、经济等各方面需要资源的公共需求；如果伊斯兰的传播与确立需要资金，那么伊斯兰准许向富人征收赋税，以实现这些目标，其依据是这一原则："若没有某事则义务无法履行，则该事亦为必须。"

If, in the Islamic society, there exist needy persons whose needs are not satisfied with all the proceeds of zakah, if there are public needs, military, economic, and otherwise that require resources, and if the spread and establishment of Islam requires funds, Islam approves of imposing taxes on the rich to achieve these targets, in application of the rule "that without which an obligation cannot be fulfilled is also obligatory."

A. 关于"马克斯"的圣训 前文已经提到，那些贬低赋税的圣训大多不可靠。即便是达到可接受程度的圣训，也并未明确禁止一切税收，因为其中用来指税收的阿拉伯词是"马克斯"（maks），而这个词有好几种含义。在《阿拉伯语词典》（Lisan al 'Arab，最受推崇的阿拉伯语词典）中，"马克斯"被定义为在伊斯兰前的市场上向商贩征收的钱款；也被定义为由"十一税"征收官所收取的款项。伊本·阿拉比（Ibn al 'Arabi）说，"马克斯"是征收天课的官员在应缴天课之外额外征收的一枚迪拉姆，而先知ﷺ禁止这种征收。他引用了这样一段圣训："征收马克斯的人不会进入天堂。"马克斯还被定义为由马克斯征收官所征收的税款。从本义上说，"马克斯"一词的意思是征收、收取。"马克斯"也有减少之意；马克斯是对商品售价的折扣。 拜哈基（Al Baihaqi）说："马克斯就是减少。如果征收官从天课的所得中扣减，他就被称为马克斯征收者。"39

A. The sayings about maks The saying that discredit levies are mostly inauthentic, as we have seen earlier. Even those which reach the level of acceptance do not explicitly prohibit every tax, since the word used in them for tax is the Arabic maks, which has several meanings. In Lisan al Arab (the most respected Arabic dictionary), "maks is defined as money collected from venders in pre-Islamic markets. It is also defined as what is collected by the 'ushr officer. Ibn al 'Arabi says that maks is an added dirham collected by the zakah officer above the due zakah, the collection of which the Prophet (p) prohibits. He mentions the saying 'A maks collector does not enter heaven.' Maks is also defined as the tax collected by the maks officer. Originally, the word maks means collection. Maks also means reduction; maks is a discount of the value of sale."38 Al Baihaqi says, "Maks is reduction. If the officer reduces from the proceeds of zakah, he is called a maks collector."39

因此,对马克斯(maks)征收者的贬斥,可以理解为对zakah官员的警告,因为马克斯征收者即是不诚实、不公正的zakah官员,他们向纳税人索取超出应缴的数额,或将本属于穷人的部分收入据为己有。有些传述者对这段圣训中"'ushr征收者"的解释,即把他们理解为非法收取sadaqah的官员,也支持这一理解。此外,艾卜·达乌德在"sadaqah的征收"一章中提到了此类圣训。对那些在计算和征收sadaqah时不公正的征收者的威胁性圣训,也支持这一理解。(其中一些圣训已在第四部分第二章中提及。)这些圣训无意中使一些圣门弟子因责任重大而拒绝担任zakah征收官。

Accordingly, the demeaning of maks collectors can be understood as a warning to zakah officers, for a maks collector is the dishonest and unjust zakah officer, who takes from payers more than what is due or keeps part of the proceeds, that belong to the poor, for himself. This understanding is supported by some narrators' explanation of 'ushr collectors' in the saying as officers who take sadaqah improperly.40 Moreover, Abu Daud mentioned such sayings in the chapter on "collection of sadaqah." This understanding is also supported by sayings that threaten collectors who are not just in their calculation and collection of sadaqah. (Some of these sayings are mentioned earlier in chapter two of part four). Such sayings inadvertantly convinced some Companions to refuse positions as zakah collectors because of the great responsibility involved.

然而，关于"马克斯"（maks）的这些说法，还有另一种理解，可能更具说服力。按照这种理解，这些说法中的"马克斯"指的是不公正的税收。伊斯兰兴起之时，这类税收在世界各地都很普遍。税款的征收没有正当依据，所得只用于君主的一时好恶；税负在有能力负担的人之间分配不公；税款的收入也不用于民众的福利；而这些税收主要加在穷人身上，富有的领主则得以免除。

However, there is another understanding of sayings on maks which may be more convincing. Maks in these sayings is explained as unjust taxes, that were predominant all over the world at the time of Islam's rise. Taxes were collected without due right and spent only on whims of the king, taxes whose burdens were not distributed justly among those who could afford them, whose proceeds were not spent for the benefit of people, taxes that were mainly imposed on the poor, from which the rich lords were exempted.

很少有法学家使用阿拉伯语词汇 daribah（意为税收）。但在他们的著作中，常用其他名称指称经常性的征敛，有时称之为"政府费用"、"赋税"、"kharaj"或"摊派"。无论是早期还是后期的哈乃斐学者，都提到过税收，并区分了正当合理的税收与苛刻的税收。 伊本·阿比丁说："某些摊派是合理的，例如为河流上修建蓄水池、分配水源、灌溉而征收的费用，为守夜人支付的报酬，为军队筹资，或在需要而公库没有资金时用于赎回俘虏。但有些摊派是不正当的，例如我们这个时代所征收的许多费用。" 在《al Qunyah》中，引述阿布·贾法尔·巴尔希的话说："伊斯兰政府为公共利益向民众征收的款项，是一种宗教上规定的义务财务负担，类似于 kharaj。我们的老师说：'政府为提供公共利益而征收的款项成为义务，例如为守卫道路、建筑物和高速公路入口而支付的卫兵薪资。'与这些正当税收相似的，是在花剌子模［中亚一座穆斯林城市，当时处于俄国占领之下］为修缮阿姆河（al Jihun）河岸、支付边境守卫费用而征收的款项。这类费用是义务性的，因为它们并不苛刻。每一位纳税人都必须缴纳。不应因这类征敛而谴责政府，但也不应鼓励其超出必要的范围。" 伊本·阿比丁在其《Radd al Muhtar》中引述巴尔希的这段话之后评论说："这只适用于公库中没有足够资金用于这些用途的情况。"52

Very seldom do jurists use the Arabic word daribah, which means tax. But in their writings they refer to regular levies using other names. Sometimes they call them "government charges" " duties," "kharaj," or "allotments." Hanafites, both early and later generations, mention taxes and distinguish between just and proper taxes and oppressive ones. Ibn 'Abidin says "Some allotments are justified, such as fees for making water pools on rivers, for distribution of water, for irrigation, to pay night watchmen to finance the aray, or to free captive, when this is needed and the public treasury does not have funds. But some allotments are not right, such as many which are collected in our times." In al Qunyah, Abu Ja'far al Balkhi is quoted as saying, "What is imposed by the Islamic government on people to pay for public interests is a religiously obligated financial due similar to kharaj. Our teachers say, 'What is collected by the government to provide for public interests become obligatory, such as salaries for guards that protect roads and buildings and entrances of highways'. Similar to these just taxes is what is collected in khawarizm [A Muslim city in Russian-occupied Central Asia] to repair the banks of the river al Jihun, and to pay the frontier guard. Such duties are obligatory, since they are not oppressive. Every taxable person must pay them. The government must not be denounced for such levies but must not be encouraged to exceed what is necessary."51 Ibn 'Abidin, after quoting al Balkhi's statement in his Radd al Muhtar, comments, "This only applies when there are no funds sufficient for these purposes in the public treasury."52

马利基派学者阿尔·马利基说："对穆斯林征收哈拉杰，取决于所要求的公共利益。在我们的学派中，这毫无疑问是允许的。显然，今天的安达卢西亚有此类需求，尤其是我们还要向穆斯林的敌人支付战利品，此外还有公共服务所需以及国库空虚的状况。所有这些都为今天安达卢西亚征收此类税赋提供了充分的依据。不过，重要的是确定所需的数额，不得超出这一数额征税。这由伊斯兰政府自行决定。"53

Al Maliqi, a Malikite says, "Imposing 'kharaj' on Muslims is subject to the given public interests. There is no doubt in our school that it is permissible. It is obvious that we have such needs in Andalusia today, especially since we pay war booties to the enemies of Muslims, in addition to what is needed for public services and in regard to the weakness of the treasury. All this provides sufficient grounds for the lawfulness of such taxes in Andalusia today. What is important, though, is to determine the amount needed and not to impose taxes beyond that. This is left to the discretion of the Islamic government."53

有若干关于不公正税收的教法裁决与观点，例如以下几种：

Several jurisprudence rulings and opinions deal with unjust taxes, such as the following:

1. 对于不公正税款的担保协议等交易是合法的，即：如果担保人不得不向政府支付不公正税款的金额，他有权向被担保人追回其所支付的款项。但这并不意味着政府有权向担保人征收不公正的税款。55

1. Transactions such as a guarantee agreement of unjust taxes are legal, in the sense that if a guarantor had to pay the amount of unjust taxes to the government, he has the right to collect what he paid from the guaranteed person. This does not, however, mean the government has the right to collect unjust taxes from guarantors.55

2. 谁承担起公正分摊这类不公levies负担的责任，谁就会得到真主的回报；因为若将负担的分摊交由压迫性的当局决定，这些摊派的负担就会分配得极不公正。 Note: "levies" in the original is kept as the English term, which I should not leave untranslated. Corrected version: 2. 谁承担起公正分摊这类不公摊派负担的责任，谁就会得到真主的回报；因为若将负担的分摊交由压迫性的当局决定，这些摊派的负担就会分配得极不公正。56

2. Whoever takes responsibility for just distribution of the burden of such unjust levies is rewarded by God, since leaving distribution of the burden up to the oppressive authority leads to very unjust distribution of the burden of these levies.56

3. 在这些税费方面欺骗政府是被允许的,除非已知这种做法会使其他纳税人承担更重的负担。如果是这样,则最好不要在缴纳时欺骗。57 伊本·泰米叶说:"当某些社群被压迫性的当权者征收税费时,无论是人头税,还是对其牲畜、树木或财产的征税,或者在天课、哈拉only税或其他伊斯兰教法无理据的税费(如销售税)上被过度征收,这些负担都必须在受压迫者之间公正地分摊。被不公正征税的人中,没有任何人有权把自己的那份负担转嫁给他人。他们需要以公平的方式分摊这些不公正的税负,仿佛它们是合法的一样,因为从征收和缴纳的角度看,人们被迫缴纳不公正的税与被迫缴纳公正的税并无二致。不公正税收的罪恶由征收和收取它们的人承担,而不由纳税人承担。在这种情况下,纳税人被要求公正地分担其应承担的负担。如果逃避缴纳会把负担转嫁给他人,那么没有人有权利逃避缴纳。"58

3. It is lawful to cheat the government with regard to these levies, unless it is known that such an endeavor ends up putting more burden on other tax payers. If so, it is preferred that one not cheat in payment.57 Ibn Taimiyah says, "When communities are charged levies by oppressive authorities, whether on heads, or on their animals, trees or wealth, or are over-charged in zakah or kharaj or other levies that are not justified in Shari'ah (such as sales taxes), such charges must be justly distributed among the oppressed. No one of the people unjustly charged with such taxes has any right to throw his share of the collective burden on others. They are required to distribute the burden of those unjust taxes in a fair way, as if they were lawful, since from the point of view of collection and payment, people are forced to pay unjust taxes the same way they are forced to pay just taxes, The evil of unjust taxes is carried by those who impose and collect them and not by payers. Payers in such cases are required to pay their share of the burden fairly and justly. No one has the right to escape payment if such an escape throws the burden on others."58