5.1 专家研究(ijtihād)
5.1 Expert Research (ijtihād)
从语言学角度看,"ijtihād"(伊智提哈德)指竭尽全力去完成某件事,而这件事需要承受一定的辛苦与困难。至于法学家(usūlī)的定义,它specifically指为了探求关于沙里亚(Sharī'ah)条规中某一事项的占优意见(ẓann,即zann)而耗尽自身精力,以至于那位穆贾台希德(mujtahid)觉得自己已无法再继续付出更多努力。
Linguistically Ijtihād is the exertion of ones utmost effort to realise a matter which entails a measure of discomfort and difficulty. As for the definition of the Usuli scholars, it is specifically the expenditure of ones energies in seeking a preponderant opinion (zann) about a thing from the Sharī’ah rules in a manner the mujtahid feels unable to exert any more.
“伊final”... let me restate: 伊智提哈德(ijtihād)已由圣训的文本所证明。据传先知(ﷺ)在派遣艾卜·穆萨前往也门时对他说: Wait, I must follow the rules precisely: the Prophet mention "the Prophet" gets ﷺ after it, and "Abu Musa" is a companion, no honorific. Also "ijtihād" transliteration. Final: 伊智提哈德(ijtihād)已由圣训的文本所证明。据传先知ﷺ派遣艾卜·穆萨前往也门时对他说:
Ijtihād has been proven by the text of the hadīth. It has been narrated about the Prophet that he said to Abu Musa when he sent him to Yemen:
“你们应当依据安拉的经典来裁决;如果在其中找不到,就依据安拉的使者的逊奈来裁决;如果在其中也找不到,就运用你们自己的伊智提哈德。”
“Judge by the book of Allah and if you do not find (solution there) then by the Sunnah of the Messenger of Allah. And if you do not find it there then exercise your own Ijtihād”
据传他曾在派遣穆阿兹和艾卜·穆萨·阿什阿里前往也门时对他们说:
And it has been narrated about him that he said to Mu’az and Abu Musa al-Ash’ari having dispatched them to Yemen:
“你将依据什么来裁决?”他们回答说:“如果我们在《Kitab》和《Sunnah》中找不到相关的hukm,我们就在两件事之间进行类比,哪一个更接近真理,我们就依照哪一个行事。”
“By what will you judge?’ They said: If we do not find the hukm in the Kitab and the Sunnah we will make analogy between two issues. Whatever is closer to the truth we will act upon that”
这种类比(qiyās)属于以独立推理(ijtihād)推导律例(ḥukm),而且先知接受了他们的这种做法。据传,先知在派遣穆阿兹担任也门的总督(wālī)时,曾对他说:
This Analogy (qiyas) is Ijtihād by deriving the hukm and the Prophet accepted it from them. It has been reported about him that he said to Mu’az when he sent as Wali (governor) to Yemen:
“你将以何为据来裁决?”他说:以安拉的经典。先知ﷺ说:如果你在其中找不到呢?他说:以安拉使者的逊奈。先知ﷺ说:如果你也找不到呢?他说:“那我就依自己的判断(ijtihād)来努力推理。”先知ﷺ说:“感谢安拉,使安拉的使者的使者,符合安拉和祂的使者所喜悦的。”
“By what will you pass Judgement ?’ He said: By the Book of Allah. The Prophet said: If you do not find it there ? He said: By the sunnah of the Messenger of Allah . He said: And if you do not find it ? He said: ‘I will exercise my own Ijtihād’ He said: ‘Praise be to Allah who has made the messenger of the Messeneger of Allah to accord with what Allah and His Messenger loves”
这一点在先知接受穆阿兹希望进行伊智提哈德(Ijtihād)的意愿中已经很清楚,也没有任何人否认伊智提哈德的合法性。此外,圣门弟子们就依据从沙里尔(Sharī'ah)证据中推导出的意见来作出裁决的问题达成了一致共识(ijma'),即他们一致同意,对于任何出现的、但找不到明确经文的事件,都可以运用伊智提哈德。这一点通过连续的传述(tawatur)传到了我们这里,其真实性毋庸置疑。其中一例是阿布·伯克尔(Abu Bakr)被问及“卡拉拉”(Kalala)时所说的话。他说:“我将依照我的意见来谈论此事。如果正确,那是来自真主的;如果错误,那是来自我,也来自恶魔,真主与此无关。卡拉拉是指既没有子女也没有父母留下的人。”他所说的“我将依照我的意见”并不意味着这一意见出自他本人的臆造,而是说:我将依照我对经文中“卡拉拉”一词的理解来发表看法。在阿拉伯语中,“卡拉拉”适用于三种情形:一是没有留下子女或父母的人;二是没有儿子或父亲(即没有后裔和尊长)的人;三是除子女或父亲一脉之外的亲属。那么,经文中的“卡拉拉”一词应当属于其中哪一种含义呢?阿布·伯克尔理解它属于其中的某一种含义,依据的是真主的话:
This is clear in the Prophet’s acceptance of Mu’az’s intention to practise Ijtihād and there is no one who disputes the legality of Ijtihād. Furthermore, an ijma’ (consensus) of the Sahabah took place on the issue of judging by an opinion which has been deduced from the Sharī’ah evidence i.e, they have agreed on the use of Ijtihād on any incident that takes place for which no (clear) text has been found. And this is what has reached us in successive reports (tawatur) in which there is no doubt. One such report is the saying of Abu Bakr when he was asked about the Kalala. He said: ‘I will speak about it according to my opinion. If it is correct then it is from Allah . If it is a mistake then it is from me and from Shaytan and Allah has nothing to do with it. Kalala is the one who has no children or parents left.’ His statement: ‘I will speak about it according to my opinion’ does not mean this opinion is from him. Rather it means I will say according to what I understand from the expression ‘Kalala’ in the verse. Kalala in the Arabic language applies to three people; the one who did not leave a child or parent or the one who does not have a son or a father from his descendants and the relatives from other than the direction of the child or father. So which of these meanings would apply to the word kalala in the verse ? Abu Bakr understood it to have one of those meanings in His saying:
“如果继承问题中的男子或女子既没有留下尊亲属,也没有留下卑亲属” [TMQ Nisā’: 12]
“If the man or woman whose in hereitence is in question has left niether ascendents or descendents” [TMQ Nisā’: 12]
"Kalala"是动词"kana"(是)的谓语(khabar),即一个男子死后没有留下可继承的父系尊亲属或子嗣。他大概也是从第二节经文中理解到这一点的:
Kalala is the predicate (khabar) of the verb ‘to be’ (kana) i.e, if the man leaves no ascendents or descendents to inherit after him. He probably understood this also from the second verse:
“说:‘安拉就关于卡拉拉(既无子嗣也无父母祖先作继承人者)作出这样的指示。如果一个男人死亡,没有留下子女’”
“Say: “ Allah directs (thus) about al-Kalala (those who leave niether descendents nor ascendents as heirs). If it is a man that dies leaving no child”
并且还有关于该经文降示原因的圣训,其记载如下:
And also from the hadīth which has been reported about the cause of the verse:
“{说:“真主是如此指引的。”}” [TMQ Nisā’: 176]
“Say: “ Allah directs (thus).” [TMQ Nisā’: 176]
据传,先知(ﷺ)探望患病的贾比尔·本·阿卜杜拉。他说:“我没有父系尊亲或子嗣。我该如何处置我的财产?”于是降示了经文:
It has been reported that the Messenger visited Jabir ibn ‘Abd Allah who was ill. He said: I leave no ascendents or descendants. What shall I do with my wealth? Thus the verse:
“如果死者是男子” [TMQ Nisā’: 176]
“If it is a man that dies” [TMQ Nisā’: 176]
……是针对贾比尔的提问而降示的。阿布·伯克尔所陈述的这一见解属于伊justihad(ijtihād,独立思考推断),并非出于他个人的臆想。此外,依据这一伊justihad,阿布·伯克尔将外祖母纳入继承范围,而排除了父亲的母亲(祖母)。有些安sar(Ansar,辅士)对他说:
was revealed in response to the question of Jabir. This opinion which Abu Bakr stated is an Ijtihād and it does not emanate from himself. Also from this Ijtihād Abu Bakr included the mothers mother in the inheritance to the exclusion of the father’s mother. Some of the Ansar said to him:
“你们把遗产分给了一个女人,而如果她先死了,那个人却不能继承她的遗产。可是,你们却忽略了另一个女人:如果她死了,那个人本可以继承她留下的全部遗产。”
‘You give inheritance to a woman from a deceased person who would not inherit from her if she died. Yet you ignored a woman, who if she had died, he would have inherited everything she left behind.’
所以艾布·伯克尔(Abu Bakr)让两位祖母平分遗产。艾布·伯克尔也曾平均地向穆斯林分发赏赐。欧麦尔(‘Umar)就这件事对他说:
So Abu Bakr gave both grandmothers equal shares in the inheritance. Abu Bakr also used to give equal gifts to the Muslims. ‘Umar said to him concerning this matter:
“不要把为了先知(ﷺ)而迁徙、舍弃家园与财产的人,与被迫皈依伊斯兰的人相提并论。”
‘do not put those who emigrated for the Prophet and left their homes and wealth behind on an equal footing with those who embraced Islam under duress.’
艾布·伯克尔回答道:
Abu Bakr answered:
“他们为了真主而皈依伊斯兰,而今世不过是一种传达(Balagh)。”
‘They embraced Islam for the sake of Allah , and the Dunya is nothing but a message (Balagh).’
同样,欧麦尔说:
Likewise ‘Umar said:
“我对祖父(父亲的父亲)的裁决依据我的意见,并依照我的见解作出陈述,即依照他对经文的理解。”
‘I judge concerning the paternal grandfather (father’s father) by my opinion and state concerning it according to my opinion. i.e. according to his understanding of the texts’
在欧麦尔(愿真主喜悦他)执政时期,一名妇女去世,遗留下丈夫、母亲、两个同母异父的兄弟,以及两个同父异母的兄弟。欧麦尔起初认为,同母兄弟应当按照其权利获得三分之一,但这样一来,同父异母的兄弟便一无所得。同父异母的兄弟便来见欧麦尔,对他说:
n the time of ‘Umars rule a woman passed away leaving behind a husband, mother, two maternal brothers and two paternal fathers. ‘Umar first thought that the maternal brothers should have the third as their right, but this left nothing to the paternal brothers. The paternal brothers approached ‘Umar and said to him:
"假设我们的父亲只是一头驴(在其他传述中是一块石头)——我们难道不还是同一个母亲所生的吗?"
‘Assume that our father is but a donkey (in other narrations, a stone) – are we still not of one mother?’
所以欧麦尔改变了主意,尽管圣门弟子们之前有不同的判决,他仍然在三分之一的份额中给所有兄弟平均分配。他们曾给丈夫二分之一的遗产,依经文所定给母亲六分之一的遗产,而最后的三分之一依经文所定给同母异父的兄弟,因此同父异母的兄弟一无所得。欧麦尔理解同母兄弟是这个男人母亲一方的兄弟,但这一理解不仅适用于同母兄弟,也适用于同父异母的兄弟。母亲是他们所有人的共同联系,因此当同父异母的兄弟一无所得时,他们应得的权利就取自同母兄弟的份额。其余的圣门弟子则另有看法;他们理解经文,并依自己的判断进行了伊智提哈德。再看另一个案例:一位名叫萨姆拉的穆斯林从一位犹太商人那里取走了一成的酒(作为关税),将其装瓶后出售。欧麦尔说道:
So ‘Umar changed his mind and gave all the brothers equal shares in the third, in spite of the fact the Sahabah had judged differently. They had given the husband one half of the inheritance, one sixth of the inheritance was given to the mother as decreed in the text, and the final third was given to the maternal brothers as also determined in the text, thus leaving nothing for the paternal brothers. ‘Umar understood that the maternal brothers were brothers of the man from his mother’s side, but this applied not just to the maternal brothers but also to the paternal brothers. The mother was the common factor between them all, so when nothing had been left to the paternal brothers, their right was of what they deserved from the maternal brothers. The rest of the Sahabah saw it differently; they understood the text and made their own Ijtihād. Consider also the case when a Muslim, named Samrah took from a Jewish merchant a tenth portion of alcohol (as customs), bottled it and then sold it. So ‘Umar said
“愿安拉与萨姆拉为敌。他难道不知道先知ﷺ说过:‘愿安拉诅咒犹太人。脂肪对他们来说是被禁止的,于是他们把它加工装饰后出售。’”
“May Allah fight Samrah. Does he not know that the Prophet said: ‘May Allah curse the Jews. The fat was made Haram upon them, so they ornamented it and sold it.’”
在这个例子中,欧麦尔以油脂为类比来推论酒,认为禁止饮酒就意味着禁止出售酒的价款。另一个关于伊智提哈德的例子是阿里对饮酒罪的刑罚(哈德)所作的论述。他说:
In this case, ‘Umar made the analogy between the alcohol and the fat, and that prohibition of it meant prohibition of its selling price. A further example of Ijtihād is what ‘Ali said regarding punishment (Hadd) for the crime of drinking alcohol. He said:
“谁饮用它,就会说胡话;谁这样做,就会捏造谎言,所以我认为他应当像捏造谎言者一样受到惩罚。”
‘Whoever drinks it will speak nonsense, and who did so would fabricate lies, so I see that he must be punished like the fabricator of lies.’
与‘Umar在前面的例子中一样,‘Ali也将饮酒与捏造谣言进行了类比,因为他从Shar'a中理解到,可能发生之事与已经发生之事被同等对待。这如同Shar'a将睡眠视同不洁(需要净化),并将性交与需要“Iddah”(离婚后女子为再婚而等待的法定期限)同等对待,就如同子宫已经受孕(怀孕)一样。所有这些都是圣门弟子的Ijtihād以及圣门弟子在Ijtihād问题上的Ijma'a(一致意见)的例子。
Like ‘Umar in the previous example, ‘Ali made an analogy between drinking and fabrication of lies because he understood from Shar’a that which is likely to happen is treated the same as that which happens. This is like when the Shar’a treated sleeping the same as ritual impurity, and the act of sexual intercourse in requiring the Iddah (legal period a woman waits after divorce for marriage) the same as if the womb had become engaged (pregnant). All these are examples of Ijtihād by the Sahabah and Ijma’a as-Sahaba on the issue of Ijtihād.
将某一裁决(hukm)应用于归属该裁决的具体问题上,并不被视为伊吉提哈德(Ijtihād),而只是对沙里亚(Sharī'ah)规定的理解。因为伊吉提哈德是从经文中推导出裁决,无论是从其字面(mantooq)、其含义(mafhoom),还是从其所指示的意义(dalalah)而得出的。
The application of a hukm on issues which are classified under it is not considered Ijtihād rather but only as the comprehension of the Sharī’ah rule. Since Ijtihād is the inference of a hukm from the text whether from its wording (mantooq), understanding (mafhoom), from its indication (dalalah)
或者从文本中已提及的“illah”(效因)推出。无论该推论是从一个全称的证据(dalīl kulli)推出一个全称的判决(hukm kulli),例如:因为立法者将断手规定为盗窃的hadd(定罪刑罚),所以推断盗窃者应当受到惩罚;还是从一个个别的证据(dalīl juz’i)推出一个个别的判决(hukm juz’i),例如:由于先知ﷺ……,从而推导出租赁(ijāra)的判决。
or from the ‘illah which has been mentioned in the text. Whether the inference was an inference of a comprehensive hukm (hukm kulli) from a comprehensive evidence (dalīl kulli); for example, the inference that a punishment should be imposed on the thief since the legislator made the cutting of the hand a hadd punishment for theft. Or the inference could be of a partial hukm (hukm juz’i) from a partial evidence (dalīl juz’i); such as the deduction of the hukm of hiring since the Prophet PBUH
(先知ﷺ)雇用了一位来自Bani al-Du'l的有经验的向导。[布哈里圣训集所载]以及他的话:
“(The Prophet PBUH) Hired a worker from Bani al-Du’l as an experienced guide” [Reported by Bukhari] And from His saying:
“然后,如果她们为你哺乳孩子,就把她们应得的报酬给她们。” [TMQ Talaaq: 6]
“Then if they give suck to the children for you, give them their due payment” [TMQ Talaaq: 6]
或者像从先知的话中推导出“工人完成工作后应当支付其工资”这一hukm(律例):“你们要在工人的汗水干之前付给他们工资。” Note: I included the hadith text as a translation placeholder would require the original hadith wording, which was cut off after "due to the Prophet's saying:". Since the original message ends at the colon, the faithful translation is simply the sentence without inventing the hadith. Correcting that: 或者像由于先知ﷺ的这句话,推导出工人完成工作后应当获得其工资的hukm(律例):
Or like the inference of the hukm of giving the worker his wage after he has finished his work due to the Prophet’s saying:
“在工人的汗水干透之前,就把他的工钱给他。” [Reported by Ibn Majah on Behalf of Abdullah Ibn Umar]
“Give the worker his wage before his sweat dries” [Reported by Ibn Majah on Behalf of Abdullah Ibn Umar]
这是一个部分的证据用于一个部分的律例。因此,从一个全面的证据推导出全面的律例,与从部分的证据推导出部分的律例,这一切都被视为伊杰提哈德(Ijtihād),因为它是从某个根据(dalīl)中采纳律例,无论该律例是从一般性证据中提取的一般律例,还是从specific证据中提取的特定律例。所有这些都构成了在从证据中理解律例时竭尽全力。至于将律例应用于属于其含义之内、或被归入其下、成为其组成部分的新问题,这不被视为伊杰提哈德。例如,安拉禁止食用死物(Maytah)。当一头牛被击打头部致死时,其肉不可食用,因为它已作为死物死亡,且并非依法宰杀,而死物之肉是哈拉姆的。罐装肉来自未依法宰杀的牛,在沙里阿中食用和出售它是哈拉姆的。这一律例并非经过推导得出,而是归入“死物”一词之下。又如,德鲁兹派所宰杀的动物不可食用,因为它不是由穆斯林或有经人宰杀的。因此,这一律例,即禁止食用德鲁兹派所宰杀的动物,并非经过推导得出,而是将一个已知的律例应用于其上,即禁止食用非有经人的异教徒所宰杀的动物。再如,妇女成为协商会(majlis al-Shura)成员是允许的,这是一条沙里阿律例。这一律例并非经过推导得出,而是将代理(Wikala,委托代表)的律例应用于其上。协商会成员身份即是代表某种意见,妇女可以委托他人提出意见,也可以代表他人表达其意见。 例如,天课只能给予那些贫穷的人,并且其贫穷状况须通过推断性的迹象得到确认,而这些迹象已提供了合法考量的依据。判决在没有公正之人('adl)的陈述时不得作出,而其可信度('adala)须在(最低限度的)怀疑之下得以确知。同样,一个人为了确定克布拉(礼拜朝向)而进行探求,直至经过考察后确定了克布拉,诸如此类的例子还有很多。所有这些事务并非通过伊志提哈德(Ijtihād,即从沙里亚证据中推演教法条例)而得出,而是通过将条例应用于具体的细节问题(juz'iyyat),或通过理解具体问题并对其适用裁决而得出。这种做法属于司法(qadā')的范畴,不属于伊志提哈德。这种做法不被视为伊志提哈德,因为它并未确定某一具体的沙里亚条例,而只是将已经确定并理解的沙里亚条例应用于某一已经裁决的事件上;当类似的事件发生时,同样的条例便依照最初的事件加以适用,因此它不被视为伊志提哈德。沙里亚条例在从证据中理解之后需要的是应用,而非伊志提哈德;而沙里亚文本则要求通过伊志提哈德来采纳沙里亚裁决,二者有所不同。因此,
It is a partial evidence for a partial hukm. So this inference of a comprehensive hukm from a comprehensive evidence and the inference of a partial hukm from a partial evidence, all of this is considered Ijtihād because it is the adoption of a hukm from a dalīl whether the hukm was general which was extracted from a general evidence or the hukm was specific which was extracted from a specific evidence. All of it constitutes exerting one’s outmost in understanding the hukm from the evidence. As for the application of the hukm on new issues which fall within its meaning or is classified under it being one of its constituents, this is not regarded as Ijtihād. For example, Allah has forbidden carrion. When a cow is killed by striking a blow to its head until it dies, its meat is not eaten because it has died as carrion and it was not lawfully slaughtered and the flesh of carrion is harām. And the hukm of tinned meat, which comes from the cow which has not been slaughtered lawfully, eating and selling it is harām in the Sharī’ah. This hukm has not been deduced; rather it is classified under the word ‘carrion’. For example, the animals slaughtered by the Druze are not eaten because it has not been slaughtered by Muslim or someone from the people of the book. So this hukm, i.e, the prohibition of eating the slaughtered animal of the Druze, has not been deduced. Rather a hukm which is already known has been applied on it, which is the prohibition of eating the animals slaughtered by the disbelievers who are not from the people of the Book. For instance, the permissibility of a woman being a member of the majlis al-Shura is a Sharī’ah rule. This hukm has not been deduced; rather the hukm of Wikala (representation) has been applied to it. The membership of the majlis al-shura is the representation of an opinion. It is allowed for the woman to delegate others to put forward opinions and she can represent others in their opinion. For example, Zakat is not given to anyone other than the one who is poor and his poverty is ascertained by speculative indications for which evidence has been furnished for its lawful consideration. Judgement is not passed without the statement of a just person (‘adl) and his trustworthiness (‘adala) is known by (the least amount of) doubt. And similarly, someone making inquiries to find out the qibla (direction of prayer) until the qibla is known after the investigation and others such examples. All these matters are not arrived at by way of Ijtihād which is the inference of rules from the Sharī’ah evidences but by way of applying the rules on the detailed issues (juz’iyyat) or by understanding the detailed issues and applying the rulings on them. This practise falls under the scope of the judiciary (qadā’) and does not come under Ijtihād. This practise is not considered Ijtihād because it does not determine a specific Sharī’ah rule but only applies a Sharī’ah rule on an incident which has already been decided and understood, when another incident of a similar type happens, the rule is applied on it similar to the initial incident and so it is not considered Ijtihād. The Sharī’ah rules require application after understanding them from the evidence and not Ijtihād, which is contrary to the Sharī’ah texts which require Ijtihād in order to adopt the hukm Shari’. Therefore,
“合法的伊吉提哈德,是竭尽全力去理解沙里亚经文,从而推导出律例。它不是竭尽全力把沙里亚的律例应用于那些归属其下的问题。”
“The legitimate Ijtihād is exertion of ones utmost to understand the Sharī’ah texts in order to deduce the ruling from it. It is not the exertion of ones utmost in applying the Sharī’ah rules on the issues that are classified under it.”
伊斯兰教法的经文要求穆斯林进行“伊占提哈德”(Ijtihād,独立推理)。这是因为伊斯兰教法的经文并非以详尽的方式降示,而是以概括笼统(mujmal)的形式降示,适用于人类所遇到的一切事件。理解这些经文并从中推导出安拉的“哈昆”(hukm,律例),需要付出努力,以便为每一件事确定其沙里亚律例。即便是那些以详尽的方式降示、涉及细节的经文,实际上仍是一般性的(‘amm)和概括笼统的(mujmal)。例如,关于继承的经文以明确的方式降示,涉及极为细微的细节,但就其具体规定而言,在许多问题上仍需要理解和推导,比如“卡拉拉”(kalala)的问题以及遮蔽继承(hajab)的问题。所有的穆智太希德(Mujtahideen)都认为,男孩或女孩在继承上优先于死者的兄弟,因为“瓦莱德”(walad,孩子)一词指男女两性的子女。伊本·阿拔斯(Ibn 'Abbas)则认为女孩不具有这样的地位,因为“瓦莱德”一词只指男性。这表明,即便是那些详细论述各种问题的经文,也是以概括笼统(mujmal)的形式降示的,从中理解和推导律例需要伊占提哈德。然而,这些涉及细节的经文需要应用于新发生的事件,而这种应用并不是伊占提哈德的本义。伊占提哈德的真正含义,是从其概括笼统(mujmal)的经文中推导出律例,即便这些经文涉及细节,它们依然是一般性的(‘amm)和概括笼统的(mujmal),并且它们是立法性的经文。立法性经文的本质就是一般性和概括笼统,即便它们深入细节。无论来自《古兰经》还是《圣训》,伊斯兰教法的经文都是:在思想领域最优秀的立法经文,最广阔的归纳空间,以及培育普遍原则最肥沃的土壤。 唯有它们适合作为所有民族和国家的立法文本。至于它们是思想领域最好的文本,这从其所涵盖的各类关系可以看出:无论是个人之间的关系,还是国家与公民之间的关系,抑或国家、民族与民众之间的关系,各种关系都包含在内。无论这些关系多么新颖、多样,思想都能够从这些沙里亚文本中推导出对它们的裁决。因此,在所有立法文本中,它们是思想领域最好的文本。至于它们具有最佳的概括范围,这从其句子、词语、表达方式中清楚可见,它们涵盖了字面含义(mantuq)、理解含义(mafhum)、所指含义(dalāla)和立法理由(ta'leel),并能类推到使每一行为的推论得以成立、持久且包容的“伊莱”(‘illah)。这确保了它们能够涵盖一切,既完备又普遍。至于它们是培育普遍原则的最肥沃土壤,这体现在这些文本所包含的大量普遍意义上,以及这些普遍意义的性质上。因为《古兰经》和圣训即使在涉及细节时,也是以宏观的纲领来阐述的。这些宏观纲领的性质在于,它们赋予《天启经典》与逊奈普遍意义,使普遍与特殊的问题都能被归入其下,大量的普遍意义正由此而来。此外,这些普遍意义包含的是真实可感的问题,而非通过理论或逻辑推演出来的假设性问题;同时,它们是为解决人的问题而存在的,而不仅仅针对特定个人,即阐明人类行为的裁决,无论促使他们做出该行为的本能动机是什么。 因此,这些文本可以适用于多种含义和诸多裁决。所以,沙里亚文本是产生普遍原则(一般性准则,qawaid ‘Aammah)最为丰沃的土壤。
The texts of the Islamic Sharī’ah require the Muslims to perform Ijtihād. This is because the Sharī’ah texts have not come in a detailed manner but have come in ambivalent form (mujmal), applicable to all incidents involving the human kind. Understanding them and deducing the hukm of Allah from them requires the expending of effort to adopt the hukm Shar’i for each incident. Even the texts which have come in an elaborate manner and deal with details, they are in fact general (‘amm) and ambivalent (mujmal). For example, the verses of inheritance have come in an elucidatory manner and deal with minute details, despite that in terms of the partial rules they still require comprehension and deduction in many issues such as the issue of kalala and issues of disinheritance (hajab). All the Mujtahideen take the view that the male or female child take precedence in inheritance over the brothers of deceased because the word ‘walad’ (child) refers to children of both sexes. Ibn 'Abbas holds the view that the girl does not have such role because the word 'Walad' refers to a male only. This shows that even the texts which treat various issues in detail have come as ambivalent (mujmal), and that understanding and deducing a hukm from them requires Ijtihād. However, these texts which deal with details require application to newly occurring incidents. This application however is not what is meant by Ijtihād. What is intended is the inference of a hukm from its ambivalent/equivocal (mujmaliha) even if they deal with details, they are general (‘amm) and ambivalent/equivocal (mujmal) and they are the legislative texts. It is the nature of legislative texts to be general and ambivalent/equivocal (mujmal) even if they dwelve on details. The Sharī’ah texts, whether they are from the Qur’ān or from the Sunnah are ; the best legislative texts for the field of thought, the widest of scope for generalisation, and the most fertile ground to cultivate general principles. And they alone are suitable as legislative texts for all peoples and nations. As for being the best texts for the field of thought that is observable from the way in which they encompass all types of relationships. This is because relationships of all types, whether relationships between individuals or relationships between the state and citizens or relationships between states, peoples and nations. However new and multifarious these relationships may be, the thought is able to deduce rulings for them from those Sharī’ah texts, Therefore they are the best texts for the field of thought from all the legislative texts. As for it having the best scope for generalisation, that is clear from its sentences, words, style of formulating (expressions) in terms of its encompassment of the wording (mantuq), understanding (mafhum), meaning (dalāla) and justification (ta’leel) and analogy to the ‘illah which makes the inference for every action feasible, permanent and inclusive. This insures that it is able to encompass everything, being complete and general. As for it being the the most fertile ground to cultivate general principles, that is apparent from the abundance of general meanings which these texts contain and from the nature of the general meanings. That is because the Qur’ān and the hadīth have come along broad lines even when touching on details. The nature of these broad lines is that they give the Kitab and Sunnah general meanings under which general and specific issues can be classified. And it is from this the abundance of general meanings come. In addition, these general meanings contain real and perceptible issues and not hypothetical issues that have been arrived at theoretically or logically. And at the same time they are there to solve the problems of man and not only for specific individuals that is, to clarify the ruling for the action of human beings, whatever be the instinctual manifestation that may have pushed them to this action. That is why they are applicable to diverse meanings and many rulings. Thus, the Sharī’ah texts are the most fertile ground for producing the general principles (qawaid ‘Aammah).
“如果法官作出判决并进行了伊吉提哈德,而他是正确的,那么他将获得两份报酬。如果他出错了,他仍将获得一份报酬。”【布哈里与穆斯林辑录】
“If a judge passes judgment and makes Ijtihād and he is right then he will have two rewards. And if he makes a mistake he will have one.” [Reported by Bukhari & Muslim
圣门弟子(Sahabah)达成了一致意见(ijma'),认为在涉及教法的推测性(zanni)问题上,法学家(Mujtahid)若进行了合乎规范的探求(ijtihad)即可免于罪责。至于确定性(qat'i)的问题,例如功修的义务、通奸和杀人的禁止,则不存在可供运用Ijtihad的余地,也不存在争议。因此,圣门弟子之间的分歧只出现在推测性问题上,而没有出现在确定性问题上。
The Sahabah formed an ijma’ (consensus) that the sin is taken off from the Mujtahiddin in the Sharī’ah rules in terms of the speculative fiqhi (jurisprudential) issues. As for the definite issues such as the obligation of the worships, prohibition of fornication and murder there is no Ijtihād or dispute with respect to them. That is why the Sahabah disagreed on the speculative issues and not on the definite issues.
在具有推测性的问题上,mujtahid(穆贾塔希德,即进行独立判断的学者)依其伊杰提哈德(Ijtihād,独立思考推论)所得出的结论是正确的,即便他的见解仍有可能出错。然而,"正确"并不意味着他已经击中了真理的靶心,因为这与推测性律例的实际情况不相符,先知曾称此人为 mukhti'(犯错者)。确切地说,说mujtahid是正确的,是指一种不排除错误可能的意义上的正确,而非指"中的"(isaba),即与错误相反的那种正中目标。因此,将在伊杰提哈德中犯错的人称为 musib(得对者,即正确者),其含义是:文本仍然给予这位mujtahid奖赏,哪怕他犯了错,而并非说他没有犯错。所以,每一位mujtahid都是依其所认为的正确而正确的,这并不排除错误;这是就他所达到的"得对"而言,而不是就他击中了真理的靶心而言。
The mujtahid in the speculative issues is correct in what he has arrived at by his Ijtihād even if he is liable to make a mistake in his opinion. However, being correct does not mean that he has hit the true target because this does not agree with the reality of a speculative rule since the Messenger called him a mukhti’ (one who has made a mistake). Rather what is meant by saying that the mujtahid is right is in terms that do not rule out a mistake and not in terms of hitting the true target (isaba) which is the opposite of mistake. So describing someone who makes a mistake in Ijtihād as right (musib) is in the meaning that the text rewards the mujtahid even when he makes a mistake and not in the sense that he did not make a mistake. Therefore, every mujtahid is right according to what he thinks is right which does not rule out mistake. It is in terms of getting it right and not in terms of hitting the true target.