ISLAMIC LEGAL MAXIMS

Certificate in Islamic Law

Lecture 4

Asst. Prof. Dr. Ghazali bin Jaapar

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Fourth Major Maxim
Injury must be removed (al-darar yuzal).
This maxim originated from the Tradition:
La darar wala dirar which is also considered as a
maxim. It has two portions.
Meaning:
1) Darar: To inflict harm/injury/damage to others,
i.e. injury not to begin with.
2) Dirar: To retaliate on the same offender with
the same injury/harm.

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 Darar means inflicting harm to others absolutely;
and dirar means inflicting harm to others not due
to legally prescribed punishment.
 Allamah Ibn al-Athir said in his book al-Nihayah:
La darara means: A person should not harm his
friend, so that reducing some of his rights, and
al-dirar means A person should not cause harm
to another person in order to reciprocate the
harm he has caused.

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 This means that it is not proper for
someone to cause harm on others, or his
property, whether to begin or to retaliate it.
It also means that when the judge wants to
deliver a sentence, it should not be more
or heavier than the offender did to the
victim.
 This is because the harm is
injustice/wrong and injustice is prohibited
by all religions.
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 Harm is prohibited even when someone
did the legitimate act such as A digs a well
adjacent to his neighbour‟s wall, or A
builds a wall which prevents lighs or air
from reaching his neighbour.
 It is equally prohibited when someone
did the illegitimate act such as to dig a
hole on public road.

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 No retaliation of harm with harm. This is
the meaning of la dirar. The wrong party
should take his case to the authority for
compensation or the like.
 No self-help.
 Application
 The buyer may return the goods to the
seller if the goods is defect.

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A practical manifestation of the maxim “Harm
must be eliminated” is the validation of the
option of defect (khiyar al-‘ayb) in Islamic law,
which is designed to protect the buyer against
harm.
Thus when A buys a car and then discovers
that it is substantially defective, he has the
option to revoke the contract. For there is a
legal presumption under the Shari‘ah that the
buyer concluded the contract on condition
that the object of sale was not defective. 7
 Suspend the license of the medical
practitioner.
 Stop the sapih (unsound mind) from
transaction.
 Nullification of the marriage because of aib
(short coming/defect).
 Do not cause harm to your client/customer i.e.
heavy penalty/ unnecessary burden or the
like.
 The jurists say no ribhan fahishan (ugly
profit).
 Discussion.
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Al-Dararu Yuzal

Some of the variant renderings of the

maxim Ad-dararu yuzal read as follows:
“Harm must be eliminated but not by
means of another harm” (Ad-dararu yuzalu
wa lakin la bi-darar); and “Harm is not
eliminated by another harm” (Ad-dararu la
yuzalu bid-darar).

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Anyone who destroys someone else property,
his property should not be destroyed as a
retaliation, because it could only cause
greater injury without any benefit accrued
from it. It is better to demand compensation in
terms of equivalent values of what he has
destroyed. Because by imposing
compensation it gives benefit to the person
his property was destroyed.

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Harm must be eliminated
 The hadith under discussion has provided the
basis of numerous other maxims on the subject
of darar, including for example,
 “A specific harm is tolerated in order to prevent a
more general one” (Yutahammal ad-darar al-
khaas li-daf’al-darar al ‘aam),
 “Harm is eliminated to the extent that is
possible”(Ad-dararu yudfa‘u bi-qadr al-imkaan)
and
 “A greater harm is eliminated by means of a
lesser harm” (Yuzal ad-darar al-ashaddu bid-
darar al-akhaff) 11
Basis of the maxim

The Messenger of Allah said: “La darara

wala dirar. Man darra darrahu Allah,
waman shaqqa shaqqa Allah ‘alayhi” [No
harm should be inflicted, nor reciprocated.
Anyone who cause harm, Allah will do
harm to him, and anyone who cause
hardship to people, Allah will do the same
to him.”

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 The Qur‟an says:
“Annoy them not, so as to restrict them. [Al-
Talaq: 6] A selfish man, because he has divorce
his wife, may, in the probationary period before
the divorce becomes absolute, treat her with
contumely, and while giving her residence and
maintenance, may so restrict it as to make her
life miserable. This is forbidden. She must be
provided on the same scale as he is, according
to his status in life. There is still hope for
reconciliation, and if not, yet the parting must be
honourable.”
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 No mother shall be treated unfairly (with harm)
on account of her child. Nor father on account
his child. [Al-Baqarah: 233]

 When you divorce women, and they (are about

to) fulfil the term of their („iddat), either take them
on equitable terms or set them free on equitable
term: But do not take them back to injure them,
or to take undue advantage; [Al-Baqarah: 231]

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A divorce is only permissible twice; after
that the parties should either hold together
on equitable terms, or separate with
kindness. [Al-Baqarah: 229]

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The prohibition of darar was well
established in almost all rulings. This is
also evident in the following verse “Do not
give your property to those weak of
understanding.” [Al-Nisa‟: 5]
The author of Taysir al-Tahrir says: “In
this verse there is indication on preventing
from harm, that is in order that he will not
destroy the property.”

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 RELATED MAXIMS/BRANCHES.
Choice between Conflicting Interests

 In the case of conflicting interests, the

rule is :
“The lesser of two evils is preferred.” (art.
29)
The rule is compatible with the Tradition of
„Aishah as has been discussed earlier.

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 Many rules stem from this maxim such as:
a) Ward off public injury
This means that “a private injury is
tolerated in order to ward off a public
injury.” (art. 26)
This is because Islamic law tends to
protect/preserve public interest rather than
private though it cause some injury to him
(private).

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The majority of the Muslim jurists thus
permit the state/authority to interfere the
affairs of individuals if such interference is
required by the public interest.
For instance, the prohibition from practice
of an incompetent physician, though it is
harm to him, pulling down a house to
prevent the spreading of fire, price control/

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fixing the price of commodities in situation
of monopoly or any other situation where
the authority sees fit and proper.
Forcing monopolists to sell his stocks in
case of need. Prohibition of transportation
of some commodities from one place to
the other if it is going to increase the price
by so doing. Pulling down the leaning wall.

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Example:
Should fire breaks out in any particular
place and should any person pull down a
house without the permission of the owner
thereof, and the fire is stopped, such
person is not liable to make good the loss
occasioned thereby, provided he has
pulled down the house by order of the
authorities. If he pulls down the house on
his own initiative, however, he must make
good the loss. [Art. 919]
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Example:

The law permits interdiction on an adult

and competent person, including an
ignorant physician, or a fraudulent lawyer,
in order to protect the public,
notwithstanding the harm this might inflict
on such individuals

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b) Ward off evil
As you know the objective of legislation
is to ward off evil and securing a benefit to
people. Usually, things are mixed up
between the two. In case of a conflict
between the two the rule is:
“Repelling an evil is preferable to securing
a benefit.” (art. 30)

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 This is because Islamic law tends to give
more consideration to prohibition rather
than commandments.
 The Hanafi school built upon this
principle the theory of the abuse of right.
It provides that a person may be denied
the exercise of his right if such exercise
should result in excessive injury to others.

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Example:

The upper storey of a building is owned in

absolute ownership by A and the lower
storey similarly by B. A has a right of
support from B and B has a right to be
protected from sun and rain. Neither may
perform any act which will prejudice the
other without obtaining permission from
him, and neither may pull down his part of
the building. [Art. 1192]
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c) Preference for the lesser injury

 The Majallah says: In the presence of

two evils: The one whose injury is
greater is avoided by the commission of
the lesser (art. 28); and “severe injury is
removed by lesser injury.” (art. 27)

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 A killer in self-defense may be excused.
Defense of human life is given preference
over defense of animals or property though
Islam respects them.
 Application and scale of priorities of the
five objectives of al-Shar‟ah.
 A classical example by the majority of
Muslims jurists is that if a ship with
passengers on board was in danger of
capsizing, it would be legitimate to throw
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overboard all goods or animals with a view
to saving human life, because the evil
resulting from the loss of those properties
is less than the evil resulting from the loss
of human lives. It is not permissible,
however, under such circumstances to
throw one of the passengers into the sea in
order to save the others, …(cont.)

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 …because all passengers are equal in
inviolability(‘ismah), and because the evil
here is counter balanced by no lesser an
evil. Preferential treatment therefore is
unwarranted.
 It is for this reason that the majority does
not accept the view of Ibn Hazm who
says that the poor and hungry,

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may fight the rich if the latter declines to
feed him to avoid dying of hunger. The case
will be different if the owner is also in need.
For, as has been mentioned earlier,
necessity will not invalidate the right of
another, otherwise, it will create havoc,
chaos, and the right of individuals is in the
state of jeopardy.

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If the harm cannot be removed by similar
harm, it can be removed by committing a
lesser harm or injury.
the jurists are of the view that to imprison
the father who refuse to give maintenance
to his small child; the harm that he will
suffer is lesser compared to those children
left without food and cloth (nafaqah)

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Injury cannot exist from time immemorial.”

 Anything which causes great injury to passers by

on the public highway may be removed, such as
low projecting balconies and resting places,
even though they have been there for a long
period of time. [Art. 1214]
 Waste disposal that pollutes a public passage
should be stopped regardless as to how long it
has been tolerated.
 Lapse of time, in other words, cannot justify
tolerance of a darar.

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Fifth Major Maxim
Custom is authoritative (al-’adah
muhakkamah)
Meaning:
 Custom: Those securing practices which
are acceptable to people of sound nature.
Customs are either general and of universal
acceptance or belong to a particular country
or a particular generation.

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‘Urf: Something that has widely known by
individuals or society and they usually
followed and respect it either by word,
action or something that people abstain
from it.
 The custom whether general or specific
shall become reference in the absence of
the text.

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 There are six categories of ‘Urf:
general, specific, qawli (words), fi’li
(action), good and bad.
 Adat perpatih?
inheritance, etc.
 Position of Islam vis-à-vis- Arabic
customs.
 When Islam came, some are
upheld,modify, or abolish.
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 The Prophet himself had on numerous occasion
upheld customary practices of the Arabian
society.
 The court is accordingly authorised to base its
judgment on custom in matters which are not
regulated by the text, provided that the custom
at issue is current, predominant among people
and is not in conflict with the principles of
Shariah.

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Evidences:
Al-Qur‟an:
Hold to forgiveness; command what is
right („Urf); but turn away from the
ignorant.
(Al-A‟raf; 7;199)
The Sunnah:
“What the Muslims see/think right, it is also
right in the sight of God.”
(Mauquf to Ibn Abbas or Marfu‟)
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 This Sunnah actually serves as the
evidence of consensus (al-ijma’). But it
can be used when the consensus was
based on good ‘urf.
 Amal ahl al-Madinah- Imam Malik.

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Conditions/Requirements:
1. It must not be against the text;
2. It has been practiced by the society;
3. It has been practiced before the
particular case is referred; and
4. No contradiction, words or actions, to the
‘urf, i.e. the parties to the contract
expressly set aside the existing ‘urf.

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Application:
 Change of the rules with the change of
time.
 Abu Hanifah‟s view on ‘adalah zahirah.
Imam Shafi‟i‟s view on al-qadim and al-jadid.
 The wages on teaching the Qur‟an, imam,
mu’azzin etc.
 The lost camel. Saydina Uthman changes
the rule for the “ corrupt of the time”.
 Changed vs. unchanged rules.
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Related Maxims/Branches
 Public usage is conclusive and action
must be taken in accordance therewith.
(art. 37);
 A matter recognized by custom is
regarded as if stipulated by agreement.
(art. 43);

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 A matter recognized as customary amongst
merchants is regarded as if agreed upon
among them. (art. 44); and
 A matter established by custom is like a
matter established by a legal text. (art. 45)
 The two contracting parties have the right to
option (khiyar al-majlis) so long as they do
not seperated.
( Related by two Imams)

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 Similarly, when someone rents a house or a car, he
should use it according to what is customary and
familiar, even if the detailed manner of its use is not
regulated in the contract.
 When a father of a bride gives her a wedding gift of a set
of furniture, and later claims that it was a temporary loan
(‟ariya) and not a gift (hibah) and there is no evidence to
prove the claim, credibility would be given to the
prevailing custom.
 If it is found that the father customarily gave such items
as gifts on such occasions, it would be counted as a gift,
even if the father claimed otherwise.

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 Whoever revives the land (dead/
uncultivated), it belongs to him.
(Related by Abu Dawud and al-Tirmidhi)
 This Tradition urges the Muslims to work
and not to leave the land or any other
property unutilised.

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 God says:
“ For divorced women maintenance
(should be provided) on a reasonable
(scale). This is a duty on the righteous”.
(Q.,al-Baqarah, 2:241)

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 Conclusion
1) All the rules that can be changed are
usually involves with branches and not
fundamental teachings or rulings;
2) The prevailing view among the jurists is
that it is permissible to contradict the text
in the case of necessity; and
3) The change of the rule by ijtihad should
not contradict the spirit of al-Shariah.

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 Thank you
May God bless you
See you in the final!

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