General Rules of Jurisprudence Lesson 12 The rule of ( قاعدة لا حرج ) LA HARAJ “No Difficulty in religion” Part 2 Abundance of exemptions from General Individual or Generic Permission or compulsory Does LA HARAJ include the removal of the laws of title or status

Abundance of exemptions from General It is mentioned that every general has exclusions, or every rule has odds, and these odds or excluded components are few, that makes it odd and excluded, and makes the range of a General more wider. If some one tells you to eat every type of fruit from the table except for apple. And if we had one piece of 10 types of fruit, one Banana, one pineapple, one orange, one…, and we had 20 apples. (refer to LA DHARAR) We have two ways to understand this: 1.We must observe this as a real true statement ( القضية الحقيقية ) regardless of how it is implemented externally, in this case it is true exemption because exempted title is only one, which is the apple, so it is one item exempted from 11 items. 2.If we take this statement as an External statement then it will not be correct ( القضية الخارجية ) because the number of excluded externally are plenty (20) more than the number of general particles (10) which is less, so in this case it can be said that the exempted are more. But in defining religious laws and conditions, the statements are observed as True/ real ones which are related to titles and not to the external existence of those titles.

Individual (SHAKHSI) or Generic (NOWEE) The HARAJ or the severe difficulty could be either individual or personal or could be general or common or to general people like him. For example Salaat outdoor in cold whether could be difficult for him individually, or it could be difficult for people like him in his age and in his status, but for him he may not necessarily be in difficulty if he offers salaat in such condition, but many people or most of the people may be in difficult, this is called Generic or NOW’EE. So is the HARAJ which removes the obligation an individual HARAJ, Generally or commonly i.e. it is HARAJ to many people but there are few people who may not be in HARAJ personally? The answer is: Based on the evidences: the individual HARAJ is the one which is observed and removes the obligatory rules.

Permission or compulsory When the Islamic legislator says that if fasting is HARAJ then do not FAST, and make it up, does that mean that it is compulsory not to fast and if he does then it is not acceptable, will have to make it up any ways. Or does it mean that a person has permission not to fast, so if he would like to fast with the difficulty then he can do so, and if he wants to break it and make it up he can do that also, that means he has an option. To understand this we must know that removal of obligatory rule is a removal of obligatory rule only, or it is the removal of the obligatory rule and the permission to do (both are removed together). Some scholars chose that it is removal of obligatory rule only that means he can fast, others choose that it is both removal of obligatory rule and its permission or the option, so he must not do and make it up. Erawani: The evidence supports the removal of rule only, prohibition to do requires more evidence which does not exist. SO it is removal of obligation only and the permission to fast remains.

Those who choose the compulsory: In ELM USOOL it was mentioned that the obligation is activated when its MOWDHOO (conditions) exists, other wise it is not activated and not considered valid. For example if a sun sets then pray the MAGHRIB prayer, so if a person prays before that time his prayers will be invalid, because the MOWDHOO has not yet been existed. The same is here, for example existence of the water is the subject of the WODHOO and absence (not able to use it) of it is the subject of TAYAMUM, so if the water exists the TAYAMUM is not valid. So if there was HARAJ a person can uses both Water and the dust, and that is not the case, they both have separate MOWDHOO and separate cause, if there was an option to do both of them then it lead to TANAQODH or contradiction, which is a person is able to use water and not able to use it at same time for same purpose.

Erawani responds: The contradiction is pictured if we consider either WODHHO and TAYAMUM both are precisely as fixed and designated obligations, but we did not claim such, all what we say is that a person has an option and a permission to do either this or that. The existence of (being able to use) water is subject (MOWDHOO) of the WODHO being obligated as fixed precisely and not as optional obligation, the same thing is about TAYAMUM the absence of water is the subject of TAYAMUM being precisely fixed obligation, and not as an optional obligation. Our claim is one of both is obligatory as an option not as a fixed and precise obligation. So HARAJ is the subject of removal of the obligation of WODHO only, but still it remains an option if a person chooses not to do TAYAMUM, then his WODHO will still be correct.

Is the MILAAK removed or not: We mentioned previously that MILAAK is the benefit or the MASLAHA which is behind the obligatory rule. So if the obligatory rule is removed, does the MILAAK goes with it or it remains?. So if the MILAAK is removed too then the act should not be done (compulsory), because it does not have the MILAAK with it, and if the MILAAK remains, then even though the action is not obligatory, since its MILAAK exists then it can be performed, that makes optional obligation. The MILAAK remains, because removal of obligation is a favor God bestows (EMTINAAN) on his servant and not another obligation which might have a different opposite MILAAK. That means the command is not removed it remains but it comes down from the level of obligatory to the level of recommendation. Conclusion: The action with severe difficulty is valid.

LA HARAJ and the removal of the laws of title or status There are two cases: 1.The HARAJ is associated with the law of action related to the law of status, in this case only law of action is removed, the rule of LA HARAJ or severe difficulty cannot affect the title or the status given by the legislator, but it will only affect in this case the law of action. So the title remains, and the law of action associated with it is removed. Man and woman after marriage contract, the legislator makes a decree (LAW) on them and gives them a status of HUSBAND and WIFE. If the Husband was horrible and used to torture her, then the law of seeking husband’s permission to go out (law of action) is removed, but she remains his wife, the marriage remains, but some laws of action can be removed due to LA HARAJ.

Fraud (scam) trade 2 nd case: if the HARAJ is associated with the title it self, such as fraud trade or fraud marriage, here the trade or the marriage by it self as a title or status becomes HARAJ or critical, so the marriage or the sale can be nullified and void.