4.11 哈里发的权力受限于沙里亚关于立法(制定律法)的规定。
4.11 The Khalifah is restricted to the Shari’ah rules regarding adoption (enacting of laws)
哈里发在其采纳权力方面受到伊斯兰律法的约束。因此,他不得采纳未从天启证据中推导出的律例。他还有义务将自己限定于其所采纳的律例,以及他所承诺遵循的伊智提哈德(推导律例)方法。因此,他不得采纳以与其所采纳方法相悖的方法推导出的律例,也不得发布与其所采纳律例相矛盾的命令。由此,哈里发受到两方面事项的约束:
The Khalifah is restricted by the divine rules in his powers of adoption. He is thus forbidden from adopting a rule that has not been extracted from the divine evidences. He is also obliged to restrict himself to the rules he has adopted, and to the method of ijtihad (extracting rules) he has committed himself to. Therefore he is forbidden from adopting a rule that has been extracted by a method that is contrary to the one he had adopted, or from issuing an order that contradicts the rules which he has adopted. The Khalifah is thus restricted with two matters: .
关于第一个问题的证据,即哈里发在采用神圣律法方面受到限制,证据如下:
The evidences for the first matter, i.e. the Khalifah is restricted regarding the adoption of the divine rules, are: .
1. 安拉(SWT)规定每一位穆斯林,包括哈里发在内,都必须依照神圣的律法来行事。安拉(SWT)说:.
1. Allah (S.W.T) has obliged every Muslim, including the Khalifah to conduct his actions according to the divine rules. Allah (S.W.T) says: .
“不,凭你的主发誓,他们在彼此纷争的事情上,不以你为裁决者,他们就不算真正信道,直到他们……”——《古兰经》4:65 Wait—the source gives the verse with braces only in the original text; I'll translate faithfully as requested: “不!凭你的主发誓,他们在彼此纷争的事情上,若不以你为裁决者,他们就不算信道,直到……”
"But no, by your lord, they will not believe (in the truth) until they make you judge of what is in dispute between them." [TMQ 4-65] .
依照真主的律例行事,要求穆斯林在对立法者的言辞理解存在分歧时,采纳某一特定的律例;也就是说,在对立法者言辞的含义理解不一时,须从诸多律例中采纳一个特定的律例。因此,当穆斯林想要付诸行动,即想要执行某项律例时,从诸多律例中采纳一个特定的律例便成为他的义务。哈里发在履行其职责——即施政裁决——时,同样负有此项义务。
Conducting actions according to the divine rules obliges the Muslim to adopt a specific rule when understanding of the Legislator’s speech varies, i.e. when understanding the meaning of the Legislator’s speech varies. So adopting a specific rule from amongst various rules becomes obligatory upon the Muslim when he wants to carry out an action, i.e. when he wants to implement the rule. This is also obligatory upon the Khalifah, when he performs his duty, which is the ruling. .
2. 授予哈里发的效忠誓词的内容,要求他遵守伊斯兰教法,因为这是一份以《古兰经》和逊奈为准的效忠。因此,他被禁止违反它;如果他出于确信而违反,甚至可能构成背教(كفر)。如果他违反教法并非出于确信,则会被视为不服从、作恶者和叛乱者。
2. The content of the text of the bayah which the Khalifah is given obliges him to abide by the Islamic Shariah, as it is a bayah on the Book and the Sunnah. He therefore is forbidden from violating it and may even commit an act of disbelief if he did so with conviction. If he violated the Shariah without conviction he would be considered disobedient, a wrongdoer and a rebel. .
3. 哈里发是为实施沙里亚而被任命的,因此他禁止在统治穆斯林时参照沙里亚以外的任何东西。这是因为沙里亚已明确判定此事为非法,以至于任何以非伊斯兰之法统治的人,其信仰都会受到损害,而这是一件具有确定性含义的事情。这意味着,哈里发在采纳律例即制定法律时,仅受天启律例的约束。如果他制定了源自沙里亚以外的任何法律,那么若他是在确信其正当性的情况下这样做,他就犯了不信之罪;若他不信其正当性,则是违抗、不义与叛逆之罪。 至于第二点,哈里发受其所采纳的律例以及他所遵循的推导方法的约束。其依据在于:哈里发所执行的天启律例,是压在他肩上的天启律例,而不是压在其他任何人身上的。换言之,是他所采纳用以处理自身事务的那条天启(沙里亚)律例,而不是任何一条天启律例。这意味着,如果哈里发推导出一条律例,或在某一律例上效仿他人,那么这条天启律例便成为压在他身上的安拉的律例。他同样受此约束,须为全体穆斯林采纳这一律例,并禁止采纳任何其他律例,因为另一条律例并不是压在他身上的安拉的律例,因而对他而言不是天启(沙里亚)律例,相应地对穆斯林而言也就不是天启(沙里亚)律例。 因此,他所颁布给臣民的命令,受他所采纳的天启(沙里亚)律例的约束。他禁止颁布与其所采纳的天启(沙里亚)律例相抵触的命令。如果他这样做了,就如同他颁布了违背天启(沙里亚)律例的命令,故此他禁止颁布与其所采纳的天启(沙里亚)律例相冲突的命令。
3. The Khalifah is appointed to implement the Sharia, therefore he is forbidden to refer to anything other than Sharia in ruling the Muslims. This is because Sharia has made this decisively unlawful, to the point where belief is compromised for anyone who rules by other than Islam, and this is a matter which carries decisive connotations. This means that the Khalifah is restricted in his adoption of the rules, i.e. in his enacting of laws, solely by the divine rules. If he enacts any law from other than Sharia, he would be committing an act of disbelief if he did so with conviction, and an act of disobedience, wrongdoing and rebellion if he did not believe in it. As for the second matter, the Khalifah is restricted to the rules that he adopts, and to the method of deduction he commits himself to. The evidence for this is that the divine rule that the Khalifah executes is the divine rule that is upon his neck and not on anybody else. In other words it is the divine (Shariah) rule that he adopted to conduct his affairs and not just any divine rule. This means that if the Khalifah extracted a rule or imitated in a rule, this divine rule would become Allah’s rule on his neck. He would be restricted also in adopting this rule for all the Muslims, and forbidden from adopting any other rule, for another rule would not be Allah’s rule upon his neck, and therefore it would not be a divine (Shariah) rule for him, and accordingly it would not be a divine (Shariah) rule for the Muslims. Therefore he is restricted in the orders which he decrees for the subjects by the divine (Shariah) rules that he has adopted. He is forbidden from issuing an order that conflicts with what he has adopted in terms of divine (Shariah) rules. In the case he did so, it would be as if he issued an order contrary to the divine (Shariah) rule, hence he is forbidden from issuing an order conflicting with what he adopts in terms of divine (Shariah) rules. .
对神圣(沙里亚)律例的理解,也会因"伊斯廷巴特"(推导)方法的不同而有所差异。若哈里发认为,只有取自神圣(沙里亚)经文的"伊拉"(法律效力因)才可视为神圣的因由,既不把公益(�सलaha)视为神圣的因由,也不把"马萨利哈·穆尔赛赖"(无限定公益)视为神圣(沙里亚)的证据,那么他就已为自己确定了推导的方法。据此,他必须局限于此,若他采纳一项以"马萨利哈·穆尔赛赖"为证据的律例,或以并非取自神圣(沙里亚)经文的"伊拉"为基础进行类比推理(qiyas),便是错误的。因为这样的律例不会成为他身上的神圣沙里亚律例,他既不把其来源视为神圣(沙里亚)的证据,那么在他看来它就不是神圣的沙里亚律例。既然这样的律例对哈里发而言不被视为神圣律例,对穆斯林而言也就不会是神圣律例。这等同于哈里发采纳了一项外于沙里亚的律例,而这是被禁止的。若哈里发是"穆盖利德"(效仿者)或"事件中的穆扎提德"(在单一事件中的法学家),且没有特定的推导方法,那么在此情况下,他可以采纳任何神圣(沙里亚)律例,无论其证据为何,只要其证据具有或然性即可,在采纳律例上他不受任何方法的限制。他只在发布命令时受限制,即不得发布与他所采纳的律例不相符的命令。
The understanding of the divine (Shariah) rule also varies according to the method of "Istinbat" (extraction). If the Khalifah considers that the ‘Illah (effective legal cause) of the ruling is considered a divine cause if taken from a divine (Shariah) text, and he does not consider the interest (maslaha) as a divine cause, nor consider the Masalih mursala (unrestricted interests) as being a divine (Shariah) evidence, then he would have defined the method of istinbat for himself. Accordingly, he must restrict himself to it, and it would be wrong for him to adopt a rule that had its evidence as "Masalih Mursala", or to use an analogy (qiyas) based on an ‘illah (cause) that was not extracted from a divine (Shariah) text. For such a rule would not be considered a divine Shariah rule upon his neck, because he does not consider its source as a divine (Shariah) evidence, therefore it would not be a divine Shariah rule in his view. And since such a rule is not considered a divine rule for the Khalifah, it would also not be a divine rule for the Muslims. This would be as if the Khalifah adopted a rule alien to the Shariah and this is forbidden. If the Khalifah is a "Muqallid" (imitator) or a Mujtahid fi’l-Mas’ala (Jurisprudent in a single matter), and has no specific method of Istinbat, in this case, he is allowed to adopt any divine (Shariah) rule whatever its evidence, as long as he has a probable evidence, and he would not be restricted by any method in adopting the rules. He is only restricted when he issues orders, not to issue them except in accordance with the rules he has adopted.