23.1 利息(Riba,高利贷)
23.1 Riba (Interes-tUsury)
在买卖(Bay'a)和预付定金买卖(Salam)中,高利(Riba)只发生在六种物品上,它们是:椰枣、小麦、大麦、盐、黄金和白银。至于借贷(Qardh),高利可以发生在它的所有种类中,即一切物品上:一个人把某物借给另一个人,却期望从中获得更多或更少,或收取不同的东西作为回报,这是被禁止的。偿还借款或任何借来之物,应当以相同的数量和借来之物的同类物品进行。买卖和预付定金与借贷之间的区别在于:前者可以用不同种类或相同种类进行交换,而借贷只能以相同种类交换,不能用其他任何东西。 至于高利只能发生在上述六种物品上的证据,它源自圣门弟子的普遍共识,也源自穆斯林圣训实录(Muslim)所载,乌巴得·本·萨米特传述,安拉的使者ﷺ说:"黄金换黄金、白银换白银、小麦换小麦、大麦换大麦、椰枣换椰枣、盐换盐,等量换等量,逐一交割(即当场交付);若种类不同,则可随你们的意愿出售,只要是当场交割。"圣门弟子的普遍共识以及圣训都提到,特定的物品属于高利的范畴,因此高利只能存在于这些物品之中。伊斯兰教法的原则是:"一切事物原本都是被允许的,除非有禁止的证据。"这一原则适用于可能产生高利的物品。除上述六种物品外,没有其他物品被确立有禁止的证据,因此高利只存在于这六种物品之中。与这六种物品同源、以及符合其描述的物品也包括在内,并遵循同样的规定,但其他物品则不适用。 至于禁止这些事情的原因(伊莱),并没有相应的沙里亚经文,因此在此情况下不必推导原因,因为这个原因必须是沙里亚层面的,而非理性层面的;如果原因无法从经文中推导出来,它就不能被承认。
Usury does not take place in the Bay’a (trade) and the Salam (advance sale) except in six items only, and they are: dates, wheat, barley, salt, gold and silver. As for the Qardh (loan), usury can take place in all its types i.e. in everything; it is forbidden for a person to lend something to another, and to expect more or less for it, or to receive something different in return. The settlement of the loan or anything borrowed should be by the same amount and the same type of goods borrowed. The difference between the trading and the Salamon the one hand, and the Qardh on the other hand, is that the former can be exchanged for a different type or for the same type, whereas the Qardh can only be exchanged for the same type and nothing else. As for the evidence that usury can only take place in the six mentioned items, this is derived from the general consensus of the Sahaba and because Muslim reported on the authority of Ubada ibn as-Samit that the Messenger of Allah (pbuh) said: “The gold for gold, the silver for silver, the wheat for wheat, the barley for barley, the dates for dates and the salt for salt; like for like, measure for measure and hand to hand (i.e. immediately) and if they differed sell as you wish if it was hand to hand.” The general consensus of the Sahaba and the Hadith have mentioned that specific things are subject to Riba, thus it cannot occur except within these things. The Shari’ah principle stating that: “All things are originally permitted unless there is evidence about the prohibition” applies to the things in which Riba occurs. Evidence has not been established regarding any other things except these six that are mentioned, therefore Riba only occurs in them. Things which are from the same origin and things which fit the description, as the six mentioned, are included and they follow the same rule, but nothing else. As for the reason (Illah) behind prohibiting these things, there is no Shari’ah text to that effect, therefore no reason must be deduced in this instance, simply because the reason must be a Shari’ah one and not rational; and if the reason cannot be deduced from a text, it cannot be recognised.
至于以理性类比的方法,在此处同样无法推出,因为以理性进行类比的条件,必须是存在一个清晰且为人所理解的描述,才能以之进行类比。若找不到清晰的描述,则禁令背后便不可能有理由;而诸如原生名词(非由动词派生)以及含糊的描述,不能被视为神圣的理由,也不能据此进行类比。例如,真主的使者ﷺ曾说,据伊本·马哲引述艾布·伯克拉的传述:“法官在愤怒之时,不得坐下来在两造之间裁决。”愤怒被视为阻止作出判决的理由;这是因为很明显可以理解,愤怒正是阻止因素,因此它就是一个“illa”(理由);这一理由本身是从对经文的理解中推出的,即禁止之所以存在,正是因为它。这种理解意味着心智会陷入混乱,因此可以对愤怒,或任何与构成愤怒这一理由(Illah)的事物相类似的事物进行类比,即凡会使心智陷入混乱者,例如极度饥饿等。在这类情形中,以其他事物类比愤怒是正当的,因为“愤怒”这一表述是解释禁止作出判决的描述。这与真主(SWT)的如下经文不同:
As for the analogy of the reason, this also cannot be deduced in this instance, for the condition of making analogy in the reason itself must be the presence of a clear and understood description in order that analogy can be made to it. If there were no clear description to be found, there can be no reason behind the rule of prohibition; and things like a primary noun (not derived from a verb form) and a vague description cannot be regarded as divine reason, and analogy cannot be made from it. For instance, when the Messenger of Allah (pbuh) said, as reported by Ibn Majah on the authority of Abu Bakra: “A judge must not sit to pass judgement between two disputing parties when he’s in a State of anger.” Anger was considered as the reason for preventing the passing of judgement; this is because it is clearly understood that anger is the preventive factor, thus it was an “illa” (reason); the reason itself was deduced from the understanding of the text, which is that the prevention was because of it. This understanding entails that the mind is confused; therefore analogy can be made to anger or anything similar to what made anger as the reason (Illah) i.e. it would cause the mind to be in a state of confusion, such as severe hunger for instance. In such cases, it would be right to make analogy with the anger on anything else, for the expression of “anger” is a description that explains the prevention of passing judgement. This is unlike Allah (swt)’s saying:
"你们被禁食的有:死物之肉" [Al-Ma’idah: 3]
“Carrion meat has been made unlawful to you” [Al-Ma’idah: 3]
腐肉并不是对禁令的说明性描述,因此不能对其进行类比,禁令在此情况下仅限于腐肉本身。另外,如果高利贷在小麦上被禁止,那么它不能被用作对其他任何事物进行类比的依据,因为小麦是一个原生名词,而不是一个包含某种理解的表述。若说高利贷在小麦上被禁止是因为它是食物,那就是错误的,因为“食物”并不是一个包含理解的表述,因此它不能被视为禁令的理由,也不能被用来类比其他事物。
Carrion is not an explanatory description of prohibition, therefore, analogy can not be made to it and the prohibition would in this case be restricted to the carrion meat. Also if usury has been prohibited on wheat, it cannot be used as analogy for anything else, for wheat is a primary noun, and not an expression that carries an understanding. It would be wrong to say that usury has been forbidden in the wheat because it is food, for it is not an expression that carries an understanding, thus it cannot be considered as a reason for the prohibition and it cannot be used as an analogy on other things.
至于真主的使者ﷺ,穆斯林(Muslim)从穆阿迈尔·伊本·阿卜杜拉(Mu'mmar ibn Abdullah)处转述的圣训说:"食物换食物,须等量相换。"还有艾哈迈德(Ahmed)从艾布·赛义德·胡德里(Abu Sa'id Al-Khudri)处转述的圣训,说真主的使者ﷺ在他们之间分配了不同种类的食物,其中一些比另一些更好,于是他说:"我们开始在彼此之间竞相抬价,真主的使者ﷺ便禁止我们这样做,并命令我们,除非是等量换等量、不得有任何增加,否则不得交易。"此外,奈萨仪(An-Nisai)从贾比尔(Jabir)处转述的圣训,说真主的使者ﷺ曾说:"一堆食物不得与另一堆食物交换,一堆食物也不得与固定量的食物交换。" 所有这些圣训都没有表明禁止的理由是食物本身。它们只是表明高利贷确实会发生在食物之中,因此它涵盖了所有种类的食物,从而成为一条普遍原则;随后,真主的使者ﷺ的圣训又来specify(明确)了高利贷所发生的食物种类。原因在于,还有许多其他种类的食物,即便在其中发生交易,也不被禁止,例如茄子、西葫芦、胡萝卜、甜菜、辣椒、大蒜和葡萄,都属于食物。根据圣门弟子的一致意见(Ijma'a of the Sahaba),这些食物中不存在高利贷,尽管"食物"一词确实适用于它们,因为它们都是可食用之物。并且,穆斯林从阿伊莎(Ayisha,愿真主喜悦她)处转述,真主的使者ﷺ曾说:"食物已摆上时,不可礼拜。"即食物已备好可食用。因此,如果高利贷发生在每一种食物上,那么上述食物本应成为高利贷的对象;这表明食物的圣训是普遍的,而高利贷发生在真主的使者ﷺ在其所说"小麦换小麦、大麦换大麦、椰枣换椰枣……"中所明确的那些种类上。 同样,正如《古兰经》可以被圣训所限定,圣训也可以被另一段圣训所限定。因此,买卖和预付买卖(Salam)中的高利(riba)只发生在圣训中提到的六类物品上。
As for the Messenger of Allah (pbuh) Hadith reported by Muslim on the authority of Mu’mmar ibn Abdullah: “The food for food, in equal quantities”, and the Hadith reported by Ahmed on the authority of Abu Sa’id Al-Khudri “that the Messenger of Allah (pbuh) divided among them different types of food, some of which was better than the other, so He said: ‘We started bidding amongst ourselves so the Messenger of Allah (pbuh) prohibited us from doing so and ordered us not to trade in it except by measure for measure with no increase whatsoever’”. As well as the Hadith reported by An-Nisai on the authority of Jabir that the Messenger of Allah (pbuh) said: “A heap of food must not be traded for another heap of food, nor the heap of food for the fixed measure of food.” All these Ahadith do not indicate that the reason of prohibition is the food. Rather they merely indicate that usury does occur in the foodstuffs, therefore it includes all types of foodstuffs which makes it a general rule; then came the Hadith of the Messenger of Allah (pbuh) to specify the types of food in which usury occurs. This is so because there are many other types of foodstuffs where usury, if it occurred, would not be forbidden e.g. aubergines, courgettes, carrots, the sweet, peppers, garlic and grapes are foodstuffs. Usury does not occur in them according to Ijma’a of the Sahaba, despite the fact that the expression of food does apply to them, for they are edible things; and because Muslim reported on the authority of Ayisha (ra) that the Messenger of Allah (pbuh) said: “No prayer when food is ready”, i.e. the food is ready to eat. Therefore, if usury occurred in every type of food, the above mentioned foods would have been the subject of usury; this indicates that the Hadith of food is general and usury occurs in the types specified by the Messenger of Allah (pbuh) in his saying: “The wheat for wheat, the barley for barley, the date for dates...”. And just as the Qur’an can be specified by the Hadith, so can the Hadith be specified by another Hadith. Therefore, usury in the trading and the Salam occurs only in the six types mentioned in the Hadith.
此外,若说高利贷之所以在金和银中被禁止,是因为它们以重量计算,从而把禁止的理由归于它们是称重之物,那是错误的。同样,若说小麦、大麦、椰枣和盐中的高利贷被禁止,是因为这些物品以容量计算,从而把禁止的理由归于这类食物以容量计量,这也是错误的,因为在圣训中提到重量和容量,是作为对这些食物种类的描述,而不是作为理由。 An-Nasai 引述乌巴达·伊本·萨米特的传述说,安拉的使者ﷺ说:"黄金换黄金,无论是金块还是金币,都须重量相等、同等交换;白银换白银,无论是银块还是银币,都须重量相等、同等交换;盐换盐、椰枣换椰枣、小麦换小麦、大麦换大麦,都须等量、同样交换;谁多给或多取,谁就陷入了高利贷。" 这段圣训说明了禁令适用的情况:即金银在重量上的差异,以及小麦、大麦、盐和椰枣在容量上的差异。这表明的是交易的方式,即买卖所发生的方式,而不是禁令的理由。因此,高利贷并不出现在每一种可称重或可量取的物品中,而只出现在上述六类物品中:金银以重量计,其他四类以容量计。 至于借贷(Qardh),在上述六类物品以及其他任何可以被拥有、且其所有权可以合法转移的物品上,都是允许的。在这种情况下,只有当借贷附带条件要求更多的偿还或更少的偿还,或者要求偿还的质量低于所借之物时,才会构成高利贷。
Furthermore, it would be wrong to claim that usury has been forbidden in gold and silver because they are estimated in weight, making the reason of prohibition the fact that they are weighed items. And it would be wrong to say that usury in wheat, barley, dates and salt is forbidden because such items are estimated in volumetric measure, thus making the reason of prohibition the fact that such types of foodstuffs are estimated in volumetric measure, this is wrong because the weight and measure were mentioned in the Hadith as a description of those types of foodstuffs and not as a reason. An-Nisai reported on the authority of Ubada Ibn as-Samit that the Messenger of Allah (pbuh) said: “Gold for gold, ore and coins alike, weight for weight, and silver for silver, ore and coins alike, weight for weight, and salt for salt, dates for dates, wheat for wheat, barley for barley, equally and similarly; so He who were to increase or take an increase, He would fall into usury.” The Hadith has explained the situation in which prohibition applies, which is the difference of weight in gold and silver, and the difference of volumetric measure in wheat, barley, salt and dates. This shows the way of exchange i.e. the trading takes place, not a reason for the prohibition. Therefore, usury does not occur in every measured or weighed item, but only in the six types mentioned above in weight for gold and silver, and in measure for the others. As for lending and borrowing (Qardh), this is permitted in the six types mentioned and in other types and in any other thing that can be subject to ownership and whose ownership is lawfully transferable. Usury in this case can only occur if it is stipulated for a higher return or a lower return, or if a condition is laid for lower quality than what has been loaned.