3.2 私有制的定义
3.2 Definition of Private Ownership
个人所有权是一项神圣的规定,依据资产或收益来确定,由此使所有者得以利用该资产并从中获得补偿。例如,一个人对一条面包或一所房子的所有权即属此类。他凭借对面包的所有权,可以吃掉它,也可以卖掉它;同样,凭借对房子的所有权,他可以住在里面,也可以卖掉它。在这两个例子中,面包和房子都是资产。与它们有关的神圣规定,是立法者允许人通过消费、受益或交换来利用它们。利用的许可意味着所有者既能吃面包、住房子,也能出售它们。就面包而言,神圣规定依据的是资产本身,即食用它的许可;就房子而言,神圣规定依据的是收益,即居住其中的许可。因此,所有权被定义为立法者允许利用该资产。相应地,所有权只有在立法者允许、并允许其途径的情况下才得以确立。拥有某项资产的权利并非源自资产本身,也并非源自其有益或有害的性质,而是源自立法者的许可,以及他对使资产获得合法所有权之途径的认可。据此,立法者允许某些资产的所有权,禁止另一些资产的所有权。他也允许某些契约,禁止另一些契约。因此,立法者禁止穆斯林拥有酒和猪,禁止伊斯兰国的任何公民拥有通过高利贷和赌博获得的财产。他允许买卖,使其成为合法(Halal);禁止高利贷,使其成为非法(Haram)。他允许 ‘Anan 式合伙(人身与资金的合伙),禁止合作社、股份有限公司和保险。
Individual ownership is a divine rule estimated in terms of asset or benefit, which accordingly enables the owner to utilise the asset and to receive compensation for it. This could be in the form of a person’s ownership of, for example, a loaf of bread or a house. He is able through his ownership of the loaf, to eat it or to sell it. Similarly, through his ownership of the house, He is able to live in it or sell it. In both examples, the loaf of bread and the house are assets. The divine rule concerning them is the Law-Giver’s permission for man to utilise them by consuming them, benefiting from them or exchanging them. The permission of utilisation entails that the owner is able to eat the loaf and live in the house, as well as being able to sell them. With regard to the loaf, the divine rule is estimated by the asset, which is the permission to consume it. With regard to the house, the divine rule is estimated by the benefit, which is the permission to live in it. Ownership is thus defined as the Lawgiver’s permission for utilising the asset. Accordingly, ownership is not established except when the Lawgiver allows it and allows its means. The right of owning the asset does not result from the asset itself, or from its nature by being either beneficial or harmful. Rather it results from the permission of the Lawgiver, and from His allowing of the means that permits an asset to be legally owned. By this, the Lawgiver permits the ownership of some assets and prohibits the ownership of others. He also permits some contracts and prohibits others. Thus, the Lawgiver prohibited the ownership of wine and pigs by Muslims, and prohibited the ownership of property acquired through usury and gambling by any citizens of the Islamic State. He permitted selling, thus making it Halal, and prohibited usury thus making it Haram. He permitted the company of ‘Anan (partnership by body & finance) and prohibited co-operatives, joint stock companies and insurance.
法定所有权有其条件,其处置也受到限制。所有权不应妨碍集体的利益,也不应妨碍身处某一特定社会中、作为社群一员的个人的利益。对所拥有资产的使用,只有通过立法者才能实现,立法者依照神圣的途径将其授予个人。所有权是立法者将某一物品指定给社群中的某个人,而若非如此,此人本无权拥有该物。
Legal ownership has conditions and its disposal has constraints. Ownership should not interfere with the interests of the community or the interests of the individual who is part of a community and living in a particular society. Utilisation of the owned asset only comes about through the Lawgiver, Who grants it to the individual by following the divine means. Ownership is the Lawgiver’s assignment to an individual in the community of a particular thing, which He would not otherwise have the right to own.
然而,资产的所有权既包括对资产本身的所有权,也包括对其收益的所有权。所有权的真正目的,在于以伊斯兰教法(Shar'a)所规定的方式使用该资产。
However the ownership of an asset is ownership of the asset itself and of its benefit. The real aim of the ownership is to utilise the asset in a manner enjoined by the Shar’a.
鉴于对个人所有权的这一定义,可以理解,所有权有其合法的取得方式。同时也可以理解,所有权有其处分的特定方法,以及所拥有之物的特定使用方式。
In light of this definition of individual ownership, it can be understood that there are legal means of ownership. It can also be understood that there are certain methods for the disposal of this ownership and a certain manner in which owned things may be utilised.
因此,那些被视为侵犯个人所有权的事件便可以得到理解。由此,立法者所界定的"占有"的真正含义——即为获取某物而努力,以及对其加以利用——便被理解为所有权的真正定义。换言之,所有权的真正定义揭示了所有权的真正含义。
Incidents that are considered to be an aggression against the right of individual ownership may therefore be understood. Thus the true meaning of possession which the Lawgiver defined as the striving for a possession as well as its utilisation is understood as the true definition of ownership. In other words, the true definition of ownership indicates the true meaning of ownership.