37. 法律责任的条件 [shurūt al-taklīf]
37. The conditions of legal responsibility [shurūt al-taklīf]
伊斯兰(即成为穆斯林)并不是承担法律责任(taklīf)的条件,就法律裁决而言,除非某条经文明确规定某项裁决是针对穆斯林的,无论是明文规定(sarahatan),例如:
Islam (being Muslim) is not a condition for legal responsibility [taklīf] with respect to the legal rulings, except for a ruling about which a text specifies that it is for Muslims, either explicitly [sarahatan], like,
“O you who believe, fear Allah…” [al-Imrān: 102], and Note: the Qur'an verse marker text here follows the same format as the source, with the verse reference in brackets. Translation: { “信道的人啊!你们应当敬畏真主……”} [阿ali 伊姆兰:102],以及
“O you who believe, fear Allah…” [al-Imrān: 102], and
"对不信道者,你当奋斗……"[忏悔者:73];以及
“Strive against the disbelievers…” [al-Taubah: 73]; and
“并且真主绝不会让不信道者统治信道者”[妇女章:141];或者通过所指含义(dalalatan),例如将不信道者排除在某事之外,如排除在拜功(ṣalāt)之外,由此表明伊斯兰是该行为的一个条件。
“And Allah will never allow the disbelievers to have authority over the believers” [alNisa’:141]; or by denotation [dalalatan], like the exemption of the kuffar from something, like the salāt, thereby indicating that Islam is a condition in that act.
因此,伊斯兰教是那些以伊斯兰为条件的法律责任条件之一。然而,还有一些更为普遍的法律责任条件,在这些条件上穆斯林与卡菲尔之间没有区别。这些条件是身体成熟[bulūgh]、神智清醒或理智健全[‘aql],以及能力[qudrah]。因此,一个人要承担法律责任,他必须身体成熟、神智清醒,并且有能力履行他被责成去做的事情。阿里(愿安拉尊崇他的面容)传述,先知ﷺ说:“笔从三种人身上被抬起:睡眠者直到他醒来,疯癫者直到他恢复神智,孩童直到他成年。”此段由伊玛目栽德在其《穆斯奈德》中转述。而安拉,至高无上,说:
Therefore Islam is one of the conditions of legal responsibility in that which it comes as a condition. However there more general conditions of legal responsibility, in which there is no distinction between Muslim or kāfir. These conditions are physical maturity [bulūgh], sanity or a sane intellect [‘aql], and ability [qudrah]. Thus for a person to be legally responsible he must be physically mature, sane, and able to perform what he has been made responsible with. From Ali (may Allah ennoble his face) that the Messenger of Allah (saw) said, “The pen is lifted from three: the sleeping one until he wakes up, the insane until he regains his sanity, and the child until he matures”, narrated by Imam Zayd in his Musnad. And Allah, the Exalted, says,
“安拉不会让任何灵魂承受超过其能力的负担……”(黄牛:286)
“Allah burdens not a soul beyond its ability…” (al-Baqarah: 286)
“笔被提起”的意思是责任被提起,即此人在法律上不负责任,也不受法律条文的约束。而“安拉不让任何灵魂承受其力所不及的”这句经文,虽然是否定句式,却包含禁止的含义。这一点有先知ﷺ的圣训为证:“我若命令你们做什么,你们就尽力去做。”此段圣训由布哈里和穆斯林辑录。 这里不应说:安拉已使未成年人和精神病人承担天课、供养义务和赔偿责任(damanāt),因此他们也就属于应负法律责任者(mukallaf),因为他们在某些法律条文上被要求承担责任。这种说法是不正确的,因为这些义务并非与未成年人或精神病人的行为相关,而是与他们的财产和义务责任(dhimmah)相关。承担责任的是他们的财产和义务责任,而非未成年人或精神病人本身。 这一点很清楚:笔被提起的情况有明确的时限界定,即“直到他成年”和“直到他恢复理智”。这有助于推导出一个有效的起因,即身体上的未成年和精神失常,而这些与金钱和债务毫无关联,因此它们并不构成这一规则的例外。 也不应说:安拉至高无上,让一个没有能力完成某件事的人负责完成该事,如同安拉命令艾卜·莱哈卜相信所降示的经文,而安拉又告知他不会信,于是将两件相互矛盾的事情放在一起,从而让他承担不可能之事的责任,也就是使人承担他无法做到的事。这种说法是不正确的,因为安拉最初就是让艾卜·莱哈卜负责去相信……
The meaning of ‘lifting of the pen’ is ‘lifting of the responsibility’ such that one is not legally responsible nor addressed by the legal rulings, and the meaning of “Allah burdens not…”, although a negation, contains the meaning of prohibition, and this is supported by the his (saw) saying, “and if I command you with a matter fulfill it as much as you are able”, narrated by al-Bukhāri and Muslim. It should not be said here that Allah has obliged the zakāt, provision [nafaqah], and liabilities [damanāt] upon the child and the insane and so therefore they are legally responsible [mukallaf] because they have been made responsible for some of the legal rulings. This is not correct because these obligations are not connected to the act of the child or the insane, rather they are connected to their wealth and liability [dhimmah]. Their wealth and liability are the subject of responsibility, not the child or insane themselves. This is clear by the fact that the lifting of the pen is specified by a clear limit, “until he becomes mature”, and “until he becomes sane”, and this benefits the derivation of an effective cause, which is the physical immaturity, and the insanity, and these have no relevance to money and debt, hence they are not an exception to the rule. Nor should it be said that Allah, the Exalted, has made him who has no ability to fulfill a matter responsible with the fulfillment of that matter, as He commanded Abu Lahab to believe in what was revealed, whilst He (swt) informed that he will not believe, so He brought together two contradictory matters, thereby assigning responsibility of the impossible, that is, He made a person responsible for that which he cannot do. This is incorrect because Allah first made Abu Lahab responsible to believe in what He (swt)
had revealed, and did not at that stage reveal that Abu Lahab will not believe. Only after this did Allah (SWT) inform that he will not believe. Thus His (SWT) informing that Abu Lahab will not believe did not come with His being made responsible with the belief, because the informing came after the evidence establishing the obligation of belief. This is in terms of the original conditions of legal responsibility with respect to the legal rulings. As for the lifting of the legal rulings from the one made responsible for them, these are not conditions of legal responsibility, rather they are reasons which make permissible the leaving of the ruling. These are like the one who is coerced, the one who makes a mistake, and the one who forgets; these matters (coercion, error, forgetfulness) lift the blame [haraj] of non-fulfillment from those made responsible for the relevant legal ruling. This is not a case of these people not been responsible in the first instance, hence these matters are not of the conditions of legal responsibility. The Messenger ﷺ said, "Allah has removed from [wada'a 'an] my Ummah mistakes, forgetfulness, and that which one is coerced upon", narrated by Ibn Majah. Notice the difference between his ﷺ saying, "The pen is lifted…", and his saying, "removed from my Ummah", such that the former refers to the lifting of legal responsibility, such that one is not originally responsible, whilst the latter refers to the removal of accountability from the Ummah, and it does not necessitate the lifting of the legal responsibility.