10.3.7 法官的任命
10.3.7 The Appointment of Judges
允许在普遍意义上任命法官和穆赫塔西卜(监察官),使其在全国范围内裁决一切事务。也允许在特定意义上任命他,这种特定可以是地域上的,也可以是按某一类司法事务划分的。这符合安拉的使者ﷺ的行为:他任命阿里·伊本·艾比·塔利卜为也门的法官,任命穆阿兹·伊本·哲白勒为也门某一地区的法官;他还任命阿穆尔·伊本·阿绥为某一特定事务的法官。以上就是关于穆赫塔西卜法官和普遍法官的情况。
It is permitted to appoint the judges and the muhtasib in a general capacity, to judge on all matters all over the country. It is also permitted to appoint him in a specific capacity, where the specification could either be geographic or according to a certain type of judiciary. This would be in accordance with the actions of the Messenger of Allah (saw), for he appointed ‘Ali ibn Abi Talib as judge over Yemen, and Mu‘adh ibn Jabal as judge over an area of Yemen; he also appointed ‘Amr ibn al-A’as as judge in one specific matter. This is as far as the qadi muhtasib and the qadi ‘Aam are concerned.
关于申诉法官(qādī al-maẓālim),允许为其任命覆盖全国的权限,也允许将其限定在某一特定地区,因为先知穆罕默德ﷺ曾任命拉希德·本·阿卜杜拉为其所辖地区的司法与申诉之长(Amir)。至于将申诉法官限定于某些事务,则是被禁止的,因为先知穆罕默德ﷺ并未这样做;而且,他的职责是审理民众的申诉并消除其根源,因此专门化是行不通的,因为申诉无法被切割划分。此外,申诉法官除了是审理申诉的法官外,还是消除申诉根源的统治者,而统治权也不可分割。因此,统治者不得专门化于某一统治范围,即不能被限定只统治某些事务而禁止其统治其他事务;他只能被限定于某一地区。
As for the judge of madhaalim, it is permitted to appoint him for the whole country or to confine him to a specific area, for the Messenger of Allah (saw) appointed Rashid ibn Abdillah as Amir of the judiciary and the madhaalim over the imara where he was appointed. As for the confining of the judge of madhaalim to certain matters, this is forbidden, for the Messenger of Allah (saw) did not do so, and because his duty would be to look into the complaints of the people and remove their causes, thus specialisation would not be feasible, for the complaints cannot be partitioned. Also, in addition to him being a judge looking into the madhaalim, he is also a ruler in removing the causes of the madhaalim, and the rule cannot be partitioned. Thus the ruler does not specialise in the rule, i.e. he cannot be confined to ruling over certain matters and be restricted from ruling over other matters, he can only be confined to an area.
当一位统治者被任命,并获得了其所必需的权力以及处理一切事务的权威时,禁止对其统治职责加以限制和分类。同样,对于马扎利姆法官而言,就司法而言,其任命应是普遍性的。然而,他可以像瓦利被限定在特定的管辖区域那样,被限定在某一特定区域。这并不是对其统治权的分割,而是对管辖范围的具体限定;无论该管辖区域位于何处、属于何种类型,其统治权都不能被分割。马扎利姆法官同样是在马扎利姆管辖范围内被任命的,而这一管辖范围是普遍性的,因此分割其管辖领域是错误的。这证明,就马扎利姆的司法而言,他只能通过普遍性的任命而受任。
When a ruler is appointed and he acquires the mandatory powers and the authority to look into all matters, it is forbidden to restrict and categorise his duties of rule. The same applies to the judge of madhaalim - his appointment would be general as far as the judiciary is concerned. He can, however, be confined to a specific area just as for the confinement of the wali to a special wilayah. This would not be a partition of his rule but a specification of the wilayah, and no matter where and what type of wilayah it is, the rule of that wilayah cannot be partitioned. The judge of madhaalim would be appointed similarly over the wilayah of madhaalim, and this wilayah is general, therefore it would be wrong to partition the domain of his wilayah. This serves as evidence that he should not be appointed except with a general appointment as far as the judiciary of madhaalim is concerned.