10.1 处分权
10.1 Right of Disposal
所有权被定义为:关于某物本身或某种利益的一项天然规定,这一规定要求其所有者有权使用该物并因此获得回报。因此,所有权就是依据物品或利益而确定的天然规定;换言之,它是立法者(Ash-Shaari')的许可。处置(所拥有之物)是由这一天然规定所产生的事务,即源自立法者的许可,该许可使所有者有权使用该物并因此获得补偿。所拥有之物的处置因此受到立法者许可的限制,因为所有权本身就是立法者允许使用该物,而处置等同于使用该物。 既然财产属于真主(swt),而真主(swt)委任人类在获得祂的许可下使用这些财产,那么个人对财产的所有权就类似于一项职责,即为了使用和投资该财产,而非单纯的占有。这是因为人拥有财产,是为了从中获益,而他在此方面受到沙里亚界限的约束,在使用方式上并非完全自由。即便他拥有该物,他在处置该物本身时也不是自由的。证据是:如果他以非法的方式处置它,比如愚蠢或浪费地使用,国家就必须剥夺他对财产的使用权,并阻止他处置该财产,从而取消授予他的处置责任。因此,对物的处置及其使用,是其所有权所蕴含的事务,或是这一所有权的效果。所拥有之物的处置包括增值(投资)财产的权利,以及将其用于生活开支和赠与的权利。
Ownership has been defined as a divine rule concerning an object itself or a benefit, a matter which requires that its owner is entitled to use the thing and receive a recompense for it. Thus, the ownership is the divine rule estimated in terms of object or benefit; in other words it is the permission of the Lawgiver. The disposal (of the owned objects) is a matter, which therefore results from this divine rule, namely from the permission of the Lawgiver that entitled the owner to use the object and be compensated for it. The disposal of the owned thing is thus restricted by the permission of the Lawgiver because the ownership itself is the permission of the Lawgiver to use the object, and disposal is equivalent to using the object. Since property belongs to Allah (swt), and He (swt) appointed man to use this property with permission from Him (swt), then the individual’s ownership of a property is similar to a job He performs to use the property and to invest it, rather than owning it. This is because when the person owns a property He does so to benefit from it, and He is restricted in that by the limits of the Shar’a and not left free in his methods of utilisation. He is also not free in his disposal of the object itself even if He owned it. The evidence for this is that if He disposed of it by using it illegally such as using it foolishly or wastefully, the State has to deny Him access to the property and prevent Him from disposing of it, thus denying Him the responsibility for disposal which had been granted to him. Therefore, the disposal of the object and its usage is a matter which is implied by its ownership, or it is the effect of this ownership. The disposal of the owned thing includes the right of increasing (investing) the property and the right to spend it for living expenses and for giving gifts.