第77条 - 《哈里发国草案宪法》 | System Of Islam

第77条 - 《哈里发国草案宪法》 | System Of Islam

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第77条

Article 77

by Sheikh Taqiuddin An-Nabahani3 min readViewed 164 times

法官分为三种类型:第一种是法官(Qadi),他负责裁决人与人之间在交易和刑事方面的纠纷。第二种是Muhtasib(监察官),他负责处理任何可能损害社会公共权利的违法行为。第三种是申冤法庭(Madhalim)的法官,他负责裁决民众与国家之间的纠纷。

The Judges are of three types: One is the Judge (Qadi), and he undertakes settling the disputes between people over transactions and penal codes. The second is the Muhtasib, who undertakes the settling of any breach of law that may harm the rights of the community. The third is the judge of the Court of Injustices (Madhalim), who undertakes the settling of disputes between the people and the State.

本文阐述司法的种类。关于裁决人与人之间纠纷的法官的依据，源自真主的使者ﷺ的行为，以及他任命穆阿兹·本·哲白勒（愿真主喜悦他）管理也门某地区的事例。

This article explains the types of judiciary. The evidence about the judge that settles disputes between people is derived from the actions of the Messenger of Allah (pbuh) , and from his appointment of Mu’adh b. Jabal (ra) over an area of Yemen.

至于关于裁决那些危及社会公共权利的纠纷的司法依据，即由被称为муحتسب（穆哈塔西卜）的裁判官来处理，这一点有先知ﷺ的行为与言语为证，他说：«谁欺骗，谁就不是我们的人。»

As for the evidence for the judiciary regarding the settling of disputes which endanger the rights of the community, where the judge is known as the Muhtasib, this is confirmed by the action and words of the Messenger of Allah (pbuh) , for he said . » لَيْسَ مِنَّا مَنْ غَشَّ « .

“谁行欺诈，便与我们无关。”（艾哈迈德和伊本·马哲从艾布·胡莱赖传述）他过去常常当面斥责欺诈者，并惩罚他们。盖斯·本·艾布·盖尔扎·凯纳尼传述。

将维护社会权益的争端裁决机构称为“Hisbah”（ḥisba，监察），实际上是伊斯兰国家中一项特定职务的专门术语，即监督商人和工匠，防止他们在交易、工作或产品上作弊，强制其使用标准的度量衡，并杜绝任何可能损害社会的行为。这类行为正是先知ﷺ所示范、所命令遵守、并在处理其事务时亲自施行的，正如巴拉厄·本·阿齐卜的圣训所示：他禁止双方以赊账的方式买卖白银。因此，关于监察（Hisbah）的依据来自圣行（Sunnah）。同样，这些依据还包括：先知ﷺ在麦加被征服之后，任命赛义德·本·阿斯管理麦加市场，这记载于伊本·赛阿德的《层级志》和伊本·阿卜杜勒·巴尔的《伊斯提阿布》中。欧麦尔·本·黑塔卜（愿安拉喜悦他）任命他族中的女子沙法（Al-Shifa）担任市场监察官，即监察（Hisbah）裁决官；他也任命阿卜杜拉·本·欧特白管理麦地那市场，这由马立克在《穆宛塔》和沙斐仪在《圣训集》中转述。他本人也亲自处理监察事务，并像先知ﷺ那样巡视市场。哈里发们持续施行监察制度，直到马赫迪时期，他设立了专门的监察部门，使之成为司法机构的一部分。在拉希德时期，穆赫塔西卜（监察官）会巡视市场，检查度量衡是否有作弊，并审查商人的交易。

Calling the judiciary that settles the disputes that may harm the right of the community as Hisbah is in fact a technical term referring to a specific task carried out in the Islamic State, which is the monitoring of the traders and skilled workers in order to prevent them from cheating in their trade, work, or products, forcing them to use measurements and scales and preventing anything else that may harm the community. These are the very types of actions that the Messenger of Allah (pbuh) demonstrated, ordered to be observed, and undertook in settling their issues, as is clear from the narration Al-Bara’ b. ‘Azib, where he prevented both parties from selling silver by credit. Therefore, the evidence about the Hisbah is from the Sunnah. In the same manner, these evidences include that the Messenger of Allah (pbuh) appointed Sa‘id b. Al-‘As over the Makkan market after it had been conquered as is mentioned in Al-Tabaqat of Ibn Sa’d, and in Al-Isti’ab of Ibn Abdul Birr. And Umar Bin Al-Khattab (ra) appointed Al-Shifa, a woman from his clan, as a market judge (inspector), in other words, a judge of Hisbah, as he also appointed ‘Abd Allah b. Utbah over the market of Madinah, as reported by Malik in Al- Muwatta and Al-Shafi’i in his Musnad. He personally used to also deal with the judiciary of the Hisbah, and would go around the markets just like the Messenger (pbuh) used to do. The Khulafaa’ went on carrying out the Hisbah until when Al-Mahdi came he established a special department for the Hisbah, making it a part of the institutions of the judiciary. At the time of Al-Rashid, the Muhtasib (judge of Hisbah) would go around the markets, checking the weights and measures for any cheating, and to look into the traders’ transactions.

“谁被我鞭笞过背部，这里是我的背，让他来报复！谁被我玷污过名誉，这里是我的名誉，让他来玷污它！谁从他那里拿过钱，这里是我的钱，让他从中拿取。”这正是对不公之事（Madhalim）的审理，因为它属于对不公之事的审理的定义范围，即对民众与哈里发之间所发生之事进行调查。因此，对不公之事审理的依据，是先知ﷺ的言行。然而，他并没有为国家所有地区专门设立一位只负责不公之事的法官，此后的哈里发们也遵循同样的做法：他们像阿里·本·阿比·塔利卜（愿真主喜悦他）那样处理不公之事，但他并没有将其规定在特定的时间或采用特定的形式，而是随不公之事的发生而加以审查，因此它是整体行政工作的一部分。这种情况一直持续到阿卜杜·马利克·本·马尔万的时代，他是第一位将不公之事的审理单独列出、规定在特定时间并采用特定形式的哈里发。他会指定一个特定的日子来审查不公之事；如果其中有他难以处理的事务，便交给他的法官裁决。此后，在这一制度的基础上，哈里发会委任一名代理人审查民众提出的不公之事，不公之事法庭便成为一个专门的机构，并被称为“Dar Al-‘Adl”（公正之堂）。从委任专门负责此事的法官来看，这是允许的，因为哈里发可以委任某人作为代理，代其履行他所拥有的各项职权；从规定特定的时间和形式来看，这也是允许的，因为它属于被允许的事务。

“Whoever I had whipped his back here is my back, let him retaliate! Whoever I had cursed his honor, here is my honor let him curse it! Whoever I had taken some money from him here is my money, let him take from it.” This is nothing other than the judiciary of the injustices (Madhalim), because it is encompassed by the definition of the judiciary of injustices (Madhalim), which is the investigation into what occurred between the people and the Khalifah. Therefore, the evidence for the judiciary of injustices (Madhalim) is the actions and words of the Messenger (pbuh) . However, he did not make a judge specific to the injustices (Madhalim) alone for all the areas of the State, and the Khulafaa’ after him proceeded in the same manner, in that they used to deal with the injustices (Madhalim) as occurred with ‘Ali Bin Abi Talib (ra) – but he did not make it during a specific time or with a particular style, rather the injustice (Madhlamah) would be looked into as it occurred, and so it was part of the overall actions. The situation remained the same until the days of ‘Abd Al-Malik b. Marwan, who was the first Khalifah to deal with the injustices (Madhalim) separately at a specific time with a particular style, so he used to designate a specific day, and would look into the injustices, and subsequently if anything was difficult for him he would pass it to his judge who would rule upon it. After that, built upon this system, the Khalifah would appoint a delegate who would look into the injustices raised by the people, and the Court of Injustices (Madhalim) became a specific apparatus, and used to be called “Dar Al-‘Adl” (the House of Justice). This is permitted from the angle of appointing a judge who is specific for it, since it is permitted for the Khalifah to appoint someone as a delegate to undertake his work in all the mandatory powers that he has and it is permitted from the angle of specifying a particular time, and style, since it is from the permitted issues.