立法的方法
The Method Of Legislation
《古兰经》的各段经文在先知穆罕默德ﷺ开始传道的公元609年至他去世前不久(公元623年)期间陆续降示,前后约二十三年。《古兰经》的各段经文大多是为了解决先知ﷺ及其信徒在麦加和麦地那所面临的问题而降示的。许多经文直接回答了先知时期穆斯林和非穆斯林提出的问题,其中不少经文以“他们问你”开头。例如:
Sections of the Qur’aan were continuously revealed to the Prophet Muhammad (s.w.) from the beginning of his prohethood in the year 609 CE until shortly before his death (623 CE), a period of approximately twenty-three years. The various sections of the Qur’aan were generally revealed to solve the problems which confronted the Prophet (SW.) and his followers in both Makkah and Madeenah. A number of Qur’anic verses are direct answers to questions raised by Muslims as well as non-Muslims during the era of prophet hood. Many of these verses actually begin with the phrase “They ask you about.” For example,
还有许多其他经文是因某些特定事件而降示的,这些事件发生在先知ﷺ的时代。
A number of other verses were revealed due to particular incidents, which took place during the era of the Prophet (s.w.).
例如,希拉勒·本·乌迈叶曾来到先知(ﷺ)面前,指控他的妻子与先知的另一位同伴通奸。先知(ﷺ)说:"要么你就得在背上受执行的刑罚(八十鞭)。"希拉勒说:"真主的使者啊!如果我们中有人看见一个男人压在自己的妻子身上,他还要去找证人吗?"然而,先知(ﷺ)仍然要求他提供证据。随后,天使吉卜拉伊勒降临,向先知(ﷺ)启示了这节经文:16
An example can be found in the case of Hilaal ibn Umayyah who came before the Prophet (s.w.) and accused his wife of adultery with another of the Prophet’s companions. The Prophet (s.w.) said, “Either you will receive the fixed punishment (of eighty lashes) on your back.” Hilaal said, “Oh Messenger of Allaah! If any of us saw a man on top of his wife, would he go looking for witnesses?” However, the Prophet (s.w.) repeated his demand for proof. Then angel Gabriel came and revealed to the Prophet (s.w.) the verse:16
“至于那些指控自己妻子、却除了自身之外没有证据的人,他们的证词可以是:以真主起誓,发誓自己所言属实,共四次;第五次则诅咒自己,若是说谎,愿真主降罚于己。”
“As for those who accuse their wives and have no evidence but their own, their witness can be four declarations with oaths by Allaah that they are truthful and a fifth invoking Allaah’s curse on themselves if they are lying.
“但如果妻子以安拉起誓,四次作证说丈夫在撒谎,并以第五次起誓,若丈夫说的是实话,便愿自己遭受安拉的诅咒,那么她便可免受刑罚。”17
But the punishment will be averted from the wife if she bears witness four times with oaths by Allaah that he is lying, and a fifth oath invoking Allaah’s curse on herself if he is telling the truth.”17
伊斯兰教法在圣训中的确立也是如此,其中大部分内容要么是针对提问的回答,要么是事件发生时所作的裁示。例如,有一次,一位圣门弟子问先知:“真主的使者啊!我们航海,如果用淡水做小净(Wudoo),我们就会口渴。可以用海水做小净吗?”先知ﷺ回答:“它的水是纯净的,它的死物(海中生物)是合法的(哈拉姆之外的可食用之物)。”[18] 这种立法方式的目的,是使法律的颁布循序渐进,因为阿拉伯人习惯于完全的自由,这种方式更容易为他们接受。这也使他们更容易学习和理解法律,因为立法的理由和背景对他们而言是清楚的。这种渐进立法的方法不仅限于整体的法律,也出现在一些个别法律的颁布过程中。拜功(Salaah,礼拜)的立法就是个别法律渐进颁布的一个好例子。在麦加早期,拜功最初每天两次,一次在早晨,一次在夜晚。[19] 在迁往麦地那之前不久,每日五次拜功才被命令信士们遵行。然而,当时的拜功每次只有两拜(Rak'ah),唯独日落拜(Maghrib)是三拜。待早期的穆斯林已经习惯于定时礼拜之后,居住者的拜功拜数增加到四拜,但晨礼(Fajr)和日落拜除外。20
The same was the case of Islamic legislation found in the Sunnah, much of which was either the result of answers to questions, or were pronouncements made at the time that incidents took place. For example, on one occasion, one of the Prophet’s companions asked him, “Oh Messenger of Allaah! We sail the seas and if we make Wudoo (ablutions) with our fresh water we will go thirsty. Can we make Wudoo with sea water?” He replied, “Its water is pure and its dead (sea creatures) are Halaal (permissible to eat).”18 The reason for this method of legislation was to achieve gradation in the enactment of laws, as this approach was more easily acceptable by Arabs who were used to complete freedom. It also made it easier for them to learn and understand the laws since the reasons and context of the legislation would b e known to them. This method of gradual legislation was not limited to the laws as a whole, but it also took place during the enactment of a number of individual laws. The legislation of Salaah (formal prayers) is a good example of gradation in the enactment of individual laws. In the early Makkah period, Salaah was initially twice per day, once in the morning and once at night.19 Shortly before the migration to Madeenah, five times daily Salaah was enjoined on the believers. However, Salaah at that time consisted of only two units per prayers, with the exception of Maghrib (sunset) prayers, which were three units. After the early Muslims had become accustomed to regular prayer, the number of units were increased to four for residents, except for Fajr (early morning) prayer and that of Maghrib.20
13 《古兰经》黄牛章(2):217 14 《古兰经》黄牛章(2):219
13 Soorah al-Baqarah (2): 217. 14 Soorah al-Baqarah (2): 219.
15 《古兰经》第2章(黄牛章):222节
15 Soorah al-Baqarah (2): 222.
16 由阿布杜勒-布哈里(al-Bukhaaree)收录(《布哈里圣训实录》(阿英对照本),第6卷,第245-246页,编号271)。
16 Collected by al-Bukhaaree (Sahih Al-Bukhari (Arabic-English), vol. 6, pp. 245-6, no. 271).
第十七章 《光明章》(24):6-9
17 Soorah an-Noor (24): 6-9.