9.4 法官的生计来源
9.4 The judges’ means of living
法官的条例
Provisions of the judges:
据伊本·哈哲尔在《取舍之光》(Al-Fath)中所述:生活供给(rizq)是指伊玛目从公库(bait al-mal)中拨给那些为穆斯林利益尽责之人的款项。司法审判是允许从公库中为其提供生活供给的职责之一,这是国家为穆斯林利益而雇用他们所执行的职能。凡依照沙里亚受雇从事与穆斯林利益相关的任何工作,无论该工作属于敬拜还是其他性质,都有权获得报酬。其证据是,安拉(SWT)为收取天课的人规定了一份报酬。
Al-Hafiz mentioned in Al-Fath: provision (rizq) is that which the imam appoints from bait al-mal to whoever discharges Muslims interests. Judiciary is one of the tasks which is allowed to obligate provision to it from bait ul-mal, which is a function the State employed them for of the interests of Muslims. Anyone who is employed to undertake in accordance with the shara any work relating to the interests of the Muslims, is entitled to a wage, whether this work was worship or otherwise. The evidence to this is that Allah (S.W.T) assigned a share to those who collect the sadaqah. .
所以祂(SWT)说:
So He (S.W.T) says: .
"以及那些负责征收善款的人。"[TMQ 9:60]。
"And those who collect them." [TMQ 9:60].
阿布·达乌德、伊本·胡宰麦在其《赛海哈》中,以及拜哈基、哈基姆,均判定此段圣训符合两位谢赫的条件,并获济哈比认同。该圣训转述自布赖ダ(Buraydah),他说:安拉的使者ﷺ说:
Abu Dawud, Ibn Khuzaymah in his Sahih as well as Al-Bayhaqi and Al-Hakim, declare sound on the conditions of the two sheikhs, and agreed by Al- Dhahabi, a narration from Buraydah that the Messenger of Allah ( PBUH) said: .
“我们所雇用的任何员工,并为其分配了供给,那么他所取得的超出部分,即是欺骗(ghulul)。”[Abu Dawud, Sunan, #2943]。
"Any employee we used and assigned to him provision, any provision he takes more than that is deception (ghulul)." [Abu Dawud, Sunan, #2943]. .
马瓦尔迪在《大全》(Al-Hawi)中说:"司法职务可以从公库(bait ul-mal)中获得供给,因为真主(SWT)已为征收天课者规定了从中取得的份额。欧麦尔也曾任命舍莱哈,并每月给他一百迪拉姆的供给。待哈里发之位传到阿里手中时,他每月给他五百迪拉姆。此外,宰德·本·萨比特也因担任司法职务而领取报酬。"布哈里对此评论说:"
Al-Mawardi said in Al-Hawi: "Judiciary is allowed to take provision for it from bait ul-mal, because Allah (S.W.T) has assigned to the collectors of Sadaqah a share from it. ‘Umar has also appointed Shurayh and assigned to him provision made of one hundred dirham monthly. When Khilafah reached Ali he assigned to him five hundred dirham every month, additionally Zayd ibn Thabit took a wage for judiciary". Al-Bukhari commented on this saying: .
“Shurayh used to take a wage over judiciary”。Al-Hafiz 在评论这一说法时说:“关于Shurayh的传述,Sa’id ibn Mansur 告诉我们:Sufyan 从 Mujahid 处告诉我们,Mujahid 从 Ash-Sha'bi 处得知,他说:‘Masruq 过去不因司法而取报酬,而 Shurayh 则会取。’”Al-Hafiz 在《Al-Fath》中提到:“Ibn al-Mundir 提到 Zayd ibn Thabit 过去因司法而取报酬。”Ibn Sa'd 从 Nafi' 处传述,他说:“‘Umar ibn Al-Khattab 任命 Zayd ibn Thabit 担任司法工作,并为他确定了供给。”Sahabah 以及其后的人们一致认为,因司法工作而取供给是允许的。Al-Hafiz 在《Al-Fath》中说:“Abu Ali Al-Karabisi 说:‘法官因履行司法职务而取供给并无不妥,这是所有学者的共识,包括 Sahabah 以及追随他们的人。这也是各地法学家的观点,未见他们之间有分歧。Masruq 虽然不喜欢这样做,但没有人禁止它。’”Ibn Qudamah 在《Al-Mughni》中提到:“‘Umar 在派遣 Muadh ibn Jabal 和 Abu Ubaydah 前往 Al-Sham 时写信给他们,要他们在当地寻找一些良善之人,任用他们担任司法工作。他说:‘要竭尽全力为他们提供生活所需,并以真主的财富使他们满足。’”
"Shurayh used to take a wage over judiciary". Al-Hafiz said commenting on this comment: "As regarding the report of Shurayh, Sa’id ibn Mansur told us that Sufyan informed us from Mujahid from Ash-Sha'bi, he said, “Masruq did not use to take a wage on judiciary, and Shurayh used to take." Al-hafiz mentioned in Al-Fath: "Ibn al-Mundir mentioned that Zayd ibn Thabit used to take a wage on Judiciary". Ibn Sa'd narrated from Nafi', he said: "‘Umar ibn Al-Khattab employed Zayd ibn Thabit on judiciary and he assigned provision to him." The Sahabah made ijmaa', as well as those that came after them on the permissibility of taking provision for judiciary. Al-Hafiz said in Al-Fath: "Abu Ali Al-Karabisi said,”It is not wrong that the judge takes provision for making judiciary as conceived by all the scholars, including the Sahabah and those that followed them. This is the opinion of the jurists of the various provinces, without knowing a difference between them. Masruq however disliked that, but no one prohibited it." Ibn Qudamah mentioned in Al-Mughni, "‘Umar wrote to Muadh ibn Jabal and Abu Ubaydah when he sent them to Al-Sham, to find out some good people amongst them and use them on judiciary, he said, “do your utmost for them, provide for them and satisfy them with the wealth of Allah."