37.2 法律责任的归属 [khitab al-taklīf]
37.2 The address of legal responsibility [khitab al-taklīf]
法律责任(taklīf)的训令是立法者关于强制或选择的训示,即要求人去做某事或放弃某事,或在作为与不作为之间进行选择。如果训示是针对做某事的确定性要求,那么该行为即为瓦吉卜(wājib,义务)或法尔德(fard),二者含义相同。瓦吉卜行为是指:凡故意且完全地放弃它的人,在法律上即应受到谴责。所谓放弃者在法律上应受谴责,是指《古兰经》、穆罕默德使者的逊奈(Sunnah)或圣门弟子的共识(Ijmā‘ al-Sahābah)表明,如果一个人放弃了这样的行为,他就是有所欠缺并应受谴责。在放弃某一行为这一问题上,并不考虑人们的指责,而是以天启的谴责为准。从义务的角度看,个人义务(wājib al-‘ayn)与代办义务(wājib ‘alā al-kifāyah)之间并无区别。
The address of legal responsibility [taklīf] is the address of the legislator related to compulsion or choice, that is, it is related to the request to perform an action or to abstain from an action, or to the option of choosing between commission and omission. If the address is related to a decisive request to perform an action, that action is wājib [obligatory] or fard, the two being synonymous. The wājib action is that which the person who leaves it intentionally and absolutely is legally blameworthy. The meaning of the leaver being legally blameworthy is that the Book of Allah, the Sunnah of His Messenger (saw) or the Ijma’ al-Sahabah indicate that if a person leaves such an action he has acted deficiently and is blameworthy. There is no consideration given to the blame of the people on the omission of an action. Rather what is considered is the blame of the revelation. There is no difference, from the perspective of obligation, between the action which is individually obligatory [wajib al-‘ayn] and the obligation of sufficiency [wajib ‘ala al-kifāyah].