第六章 第二种所有权的取得方式
6 The Second Means Of Ownership
另一种获得财产所有权的方式是继承。继承由《古兰经》的确定性(Qat’i)经文所确立,并且有其明确的字面规定,不容以理性推论加以改变。虽然《古兰经》已经阐明了继承的详细内容,但这些详细规则仍属于总体性的原则。安拉(SWT)说:
Another means of property ownership is inheritance, which is established by the definite (Qat’i) text of the Qur’an, and it has certain literal rules which are not subject to reasoning. Although the Qur’an has stated the details of inheritance, these detailed rules are general guidelines. Allah (swt) says,
“关于(遗产的)子女部分:{真主命令你们关于子女的遗产:男子得两个女子的分额;如果子女都是女子,且多于两个,她们得遗产的三分之二}。”[《妇女章》:11] 我们从祂的话语中理解了许多法则。我们理解到,儿子所得是女儿所得的两倍。我们还理解到,在没有(在世的)子女的情况下,儿子的子女被视同子女,因为“子女”一词包括儿子的子女。这与女儿的子女不同:在没有(在世的)子女的情况下,女儿的子女不被视同儿子的子女,因为女儿的子女在语言上不包含在“子女”一词之内。 我们还理解到,如果子女都是女性且多于两人,她们共享遗产的三分之二。先知ﷺ为两个女儿定下的份额与多于两个女儿的份额相同,圣门弟子(愿真主喜悦他们)也就此事达成了一致(公议)。因此,关于两个女性的规定与关于多于两个女性的规定相同。这些法则是从经文的普遍含义中理解出来的。依据这些法则,继承人有权获得其应得的遗产份额。因此,财产所有权的途径之一便是继承,而其规则在《古兰经》、圣训以及圣门弟子的公议中均有详细规定。
“Concerning (the inheritance) for your children: to the male is the equivalent of the portion of two females, and if they (children) were women more than two, then theirs is two-thirds of the inheritance.” [An-Nisa: 11] We understand many rules from His speech. We understand that the male child takes double that which the female child takes. We also understand that the child of the son is treated as the child in cases where there are no (living) children, because the children of the male child (son) are included in the word ‘children.’ This is contrary to the children of the daughter, who are not treated like the children of the son where there are no (living) children. Because the children of the daughter are not included linguistically in the word ‘children.’We understand also that if the children were females, and more than two in number, then they share in twothirds of the inheritance. The Prophet (pbuh) made for the two females a portion equivalent to those who are more than two, and the Sahabah (companions) (ra) made Ijma’a (consensus) on that matter. So the rule in regard to the two females is the same rule for more than two females. These rules have been understood from the general meaning of the verse. According to these rules, the inheritor deserves his portion of the inheritance. Thus, one of the means of property ownership is the inheritance according to its rules, which are detailed in the Qur’an, Sunnah and the Ijma’a of the Sahabah (ra).
继承是财富得以分散的途径之一。财富的分散并不是继承的Illah(成因),而是继承之实际存在的体现。财富一旦被允许拥有,就可能在少数人手中于其生前积聚起来。为了使这种财富积聚不在他们去世后继续下去,就有必要存在一种途径,将财富在人们之间进行分配。现实中可以看到,继承正是自然地分散这些财富的途径。经过考察可以明确,财富借以分散的继承有三种情况:
Inheritance is one of the means by which the wealth is broken up; though the breaking up of the wealth is not an Illah (reason) for the inheritance, rather it is a manifestation of its reality. Once the wealth has been allowed to be possessed, it may then accumulate in the hands of a few individuals during their life. In order that such accumulation of wealth does not continue after their death, it is then necessary to have a means to divide the wealth amongst the people. It is observed in reality that the inheritance is the means of dividing this wealth naturally. Through examination, it is apparent that there are three cases of inheritance by which the wealth is broken up:
a. 第一种情况是:继承人依照继承法则获得全部遗产,财产全部在他们之间分配。
a. The first case is when the inheritors take the whole inheritance according to the laws of inheritance, whereby all the wealth is distributed amongst them.
b. 第二种情况是:依照继承法的规定,没有可以继承全部遗产的继承人。例如,丈夫去世后只留下一位妻子,或者妻子去世后只留下一位丈夫。在这种情况下,妻子只取得遗产的四分之一,丈夫只取得遗产的一半,两种情况下其余的遗产都归入公库(Bait ul-Mal)。
b. The second case is when there are no inheritors who are entitled to take the whole property according to the rules of inheritance. Such a case would be if a husband died leaving behind only a wife or a wife died leaving behind only a husband. In such instances the wife takes only a quarter of the inheritance, and the husband takes only half of the property, while the rest of the inheritance in both cases is left to the Bait ul-Mal.
c. 第三种情况是,当完全没有任何继承人时,此时全部遗产归入公库(Bait ul-Mal),换言之,交由国家处理。
c. The third case is that when there is absolutely no inheritor at all, and in this case the whole property is put in the Bait ul-Mal, in other words it is left to the State.
这样,财富便被分散,财产转移到各继承人手中,财产的流通在人们之间重新形成经济循环。财产不会被保留在某一个人手中,使财富在其身上不断积累。
The wealth is thus broken up and the property is transferred to the inheritors, where the exchange of the property resumes in an economic cycle amongst the people. The property is not kept in the hands of a particular person where the wealth accumulates.
继承是一种合法的财产所有权取得方式,因此任何继承某物的人都依法拥有该物。由此可见,继承是伊斯兰教法所允许的财产所有权取得方式之一。
Inheritance is a legal means of property ownership, so anybody who inherits a thing owns it legally. Thus the inheritance is one of the means of property ownership, which the Islamic Shari’ah has permitted.