The Qur’an and Sunnah give us certain rules which Islam has prescribed for the benefit of people. Sometimes these teachings are brief, but other times they can be very detailed. For example, the longest verse in the Qur’an [Al-Baqarah 2:282] is an entire page long and gives several details about when to write down a debt: “You who believe, when you transact a debt for a specific term, put it down in writing…” The verse goes on to mention some exceptions and the rationale behind it.
Now this is only one guideline about writing down debts. Imagine if every single issue that a person encounters had an entire page? The Qur’an would be tens of thousands of pages long and the Ḥadīth compliations would be even longer. But Allah is merciful. Sometimes we have a lot of details about one issue and other times we have just a few. Yet, in other cases, we have no details at all, but rather a general principle that applies to several different cases that might arise.
In Islamic legal terminology, a general rule like this is called a legal maxim [qāʿidah fiqhiyyah]. It is a technique to help process and solve issues in Islamic Law. Like most rules, there are some exceptions where they don’t apply to certain cases, but they do apply to most. Imam Shihāb Ad-Dīn Al-Qarafī [d. 684 AH] explains in the introduction to his book Al-Furūq that whichever scholar memorizes a lot of answers to particular cases but doesn’t know the general rules will eventually feel an inner contradiction in all those rulings and would have to memorize an endless number of particular cases to be able to answer queries about Islam. However, if a faqīh [legal scholar] masters the general rules, he can dispense with having to memorize too many legal rulings since many of them would come under the category of the general principles. [Al-Furūq, 1:3]
Some of these maxims come directly from a ḥadīth of the Prophet, such as: “Do not cause harm, and don’t get harmed [lā ḍarar wa lā ḍirār].” [Muwaṭṭa’ #1435]. Others are derived from analyzing the different rules in Islamic Law and seeing a pattern which should apply to most other cases. These legal maxims were present in the minds of the scholars among the Companions and their Successors, as well as the mujtahid [expert] imams like Abū Ḥanīfah, Mālik, Ash-Shāfiʿī, and Ibn Ḥanbal.
As the science of Islamic Law became more refined, scholars began to explain these maxims in more detail. One of the earliest scholars to codify these rules was the Ḥanafī ʿIrāqī scholar Abū Ṭāhir Ad-Dabbās who elaborated seventeen legal maxims and explained their usage. Then his contemporary Abul Ḥasan Al-Karkhi [d. 340 AH] documented thirty-seven rules [including several sub-rules] to help solve legal issues that arose. Scholars continued throughout the centuries to expound and expand these rules to encompass more and more issues until the famous civil code of the Ottoman Empire titled Majallah al-Aḥkām al-ʿAdliyyah was compiled by a group of scholars headed by Ahmad Cevdet Pasha. It was completed in 1876 and mentioned ninety-nine legal maxims in the introduction that could be used to help arrive at legal rulings.
Harm Should Be Removed [Aḍ-Darar Yuzālu]
One of the ways to apply the “do not cause harm” principle is by removing any harm that already exists. This is technically a sub-maxim because it addresses an issue where harm has already occurred. For example, early Muslim scholars discussed the question about what to do if someone installed a water drainpipe in their home but it ended up flowing out onto a public area such as a sidewalk. The issue becomes slightly confusing because technically the owner of the home has the right to install anything he wants in his own property. However, the flip side of the issue is that others are being harmed by that. Using the principle of “harm should be removed”, scholars understood that the harm resulting from the drainpipe must be removed.
The basis for such a ruling is spread throughout different guidelines which Islam had already established. For example, the Prophet Muhammad established the principle of preemption [shufʿah] by saying: “The right of preemption is valid in every joint property, but when the land is divided and the way is demarcated, then there is no right of pre-emption.” [Bukhārī #2496] Preemption is the right to purchase something before another person. The Prophet specified that a partner in a land has first priority to purchase the share of the other partner when it is put up for sale. This right to purchase first, at a reasonable price, ensures that a person who may be directly affected by a new owner will have priority to purchase something so they will not be affected by the transfer of ownership. Such a rule removes the potential, or likely, harm that would occur.
Averting Harms is Priority Over Attaining Benefits [Dar’ Al-Mafāsid Awlā min Jalb Al-Manāfiʿ]
Another sub-maxim in the same category as the “do not cause harm” principle addresses issues where there is a conflict between the harm and benefit an action might have. A common example used by Muslim scholars of Islamic Law is to prohibit selling harmful products to the public. For example, if someone were to sell drugs in society, they might claim that there is immense benefit for the seller. The drug-dealer could also claim that he donates a large portion of that money to the poor, therefore resulting in a significant benefit. A similar argument was made in the United States in 2012 when the state of Colorado was voting to legalize recreational use of marijuana. One of the arguments made in favor of legalization was that it would increase tax revenue which could be used to help schools and other social welfare projects. The problem with such an argument, from an Islamic perspective, is that it would cause harm to the individuals who use marijuana as well as harm to the society. Therefore, averting the harm of drug use should have taken priority over the benefits derived from additional taxes.
Harm is not Removed with its Like [Aḍ-Darar Lā Yuzālu bi Mithlihi]
The previous “harm must be removed” principle indicated that any harm which already exists should be removed. However, it did not clarify the means and limitations on how to remove that harm. The sub-maxim “harm is not removed with its like” clarifies that it is wrong to remove a harm by causing another harm. This might seem obvious in theory, but in practice, it can be common for people to justify their own actions.
Let’s take a few examples from Islamic Law [fiqh] literature. If a man’s land is flooded and it is harming his crops, he would apply the principle “harm must be removed”. So if he makes a drain for the water to leave his property, but then it ends up flooding his neighbor’s property, this becomes a problem. He might justify himself by saying, “I had to get the water off my property otherwise my crops would die.” However, this reasoning is wrong because it results in another harm where his neighbor’s property is now flooded. If the harms were equivalent, it is not allowed to prioritize one person being harmed over another, since the first harm already occurred. The second harm would have been directly caused by trying to remove the first one.
Another example would be for someone to harm another person’s wealth to protect their own. Let’s say there was a crash in the stock market. A fund manager might choose to liquidate his shares in a company while keeping the shares of his clients in order to secure a commission. He might justify himself with the principle “harm must be removed” but it is wrong to do that when causing harm to another’s wealth to protect your own. Similar is the case for food: one cannot eat another’s food when in need if the other person is also in need. Imagine there was a flour shortage and you were at a grocery store where the aisle containing flour was empty. If you saw a few bags of flour in another person’s shopping cart, then taking their flour would violate the sub-maxim, since most people are equally in need of flour for making food.
A Greater Harm is Removed by a Lesser Harm [Aḍ-Ḍararu l-Ashaddu Yuzālu bi Ḍ-Ḍarari l-Akhaff]
Allah mentions in the Qur’an that pork is prohibited but then follows it up by saying, “…but whoever is driven to necessity, not desiring, nor exceeding the limit, they will incur no sin…” [Qur’an 2:173] In Islam, everything is obligated or prohibited for a good reason. The prohibition of eating from a pig must be due to some physical and/or spiritual harm that results from its consumption. Despite that, Allah said it is allowed to eat it in dire necessity. Therefore, the principle of engaging in a lesser harm to prevent a greater harm is established.
The story of Prophet Musa and Al-Khadir [or Khidr] demonstrates the same principle in practice. [See Qur’an 18:71] When the two are invited to board a ship, Al-Khadir secretly damages that ship. Musa cannot understand why he would cause harm to nice and innocent people who did nothing wrong. At the end of the story, Musa learns that there was a tyrannical king seizing ships from people. Musa regrets and realizes that Al-Khadir actually saved the ship by damaging it, since causing this small harm was the only way to avert the greater harm of having the entire ship stolen by the tyrant.
This sub-maxim has two other, very closely related, sub-maxims, which almost appear to be restatements of the same principle: “Choose the Lesser of Two Harms” [Yukhtāru Akhaffu Ḍ-Ḍararayn] and “When Two Harms Conflict Restrict the Greater Harm by Doing the Lesser Harm” [Idhā Taʿāraḍat Mafsadatāni Rūʿiya Aʿẓamuhumā Ḍararan b-Irtikābi Akhaffihimā]. These maxims apply in many cases and have helped solve many practical issues throughout history. If someone cannot cover themselves fully for prayer, or if they are unable to face the qiblah direction, they will pray as they can, because not fulfilling the prerequisites for prayer is a lesser harm than skipping the prayer altogether. Another example would be that if someone is in a house which is on fire, and there is no other way to escape, they should jump out the window if there is a chance of survival, even if they end up breaking a leg, since physical injury is a lesser harm than death.
Bear Specific Harm by Repelling General Harm [Yutaḥammalu Ḍ-Ḍararu l-Khāṣṣu li Dafʿi Ḍ-Ḍararu l-ʿĀmm]
The last sub-maxim we will look at is based on the quantity of those affected. Sometimes, there will be a case where someone might be harmed on an individual level to prevent more people from being harmed. This sub-maxim is somewhat like the philosophy of utilitarianism which states that a guiding principle in ethics is to bring the greatest good to the greatest number of people. The converse of that would be to avert the greatest harm from the greatest number of people, even if that might result in some harm to a few individuals.
A good example of that would be banning untrained physicians from practicing medicine in society. So-called ‘quack doctors’ represent a potential harm to many people by giving bad medical advice that is not evidence-based. This can seriously harm people. For example, a few people, including former President Donald Trump, promoted the drug hydroxychloroquine as a protection from Covid-19. This advice resulted in several people being harmed, and even some dead. However, on the flip side, there may be some unlicensed medical practitioners who are very knowledgeable and do give good advice, and they would be harmed if they were prevented from officially practicing medicine in society. However, the priority of preventing a general harm to most people takes precedence over the individual harm that may result.
We have looked at what legal maxims in Islamic Law are and how they help Muslim scholars navigate contemporary issues that arise. However, it should be kept in mind that there are many more intricacies and conditions that scholars consider while using these principles, so people should not assume that fatwas [Islamic answers by qualifies scholars] are given out just by knowing a few maxims and principles. It is hoped that the reader will understand part of the process by which new issues are dealt with in Islamic Law and gain a greater appreciation for the beautiful religion of Islam.
[Shaykh] Mustafa Umar | Aug 31, 2022 – Irvine, CA