General Rules of Jurisprudence Lesson 8 LA DHARAR –NO HARM لا ضرر Part three: Why was the tree cut? The problem of Abundance of exclusion of General The issue of harmful laws

Why was the tree cut? Sh. Al- Ansari mentioned that if the rule is not causing harm to others, and intrusion of SAMARA was casing harm to the Ansari, then the least implementation of this rule was to make a decree prohibiting Samara from entering the Ansari’s house without permission. But why did the Prophet (S) made a decree to cut of the tree which does not fit this rule. The Prophet (S) told him to ask the permission, be he rejected the first option, and he was going to continue what he had been doing, then the Prophet went to next step which is to stop him from continuing of doing such, and that was by cutting the branch, he also made the reason clear by his famous statement. Such action was to prevent further violation of Samara and his causing harm to the Ansari. The Prophet used his WELAYAT (authority) as HAKIM (ruler) or judge to prevent such problem.

ERAWANI’s respond The hadeeth has two segments, No harm (LA DHARAR) and No causing Harm (LA DHERAR), the first segment is a legislative, that there is no rule or subject of a rule (based on the different understanding of the Hadeeth) in Islamic legislative system which is associated with harm. The other segment: No causing harm (LA DHERAR) is the segment which is prohibiting direct harm to some one else, and preventing any direct harm can be done by a prerequisite action, and cutting of the branch was required to stop SAMARA from violating and harming the privacy of the ANSARI, if he would have appointed a guard on the ANSARI’s house it would not have been feasible or Practical. So that was the only preventative measure which could be taken at that time to prevent SAMARA from causing Harm to SAMARA.

The problem of Abundance of exclusion of 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. A problem was raised In this rule (LA DHARAR WA LA DHERAR), that this rule excludes a large range of Islamic laws and rules which may seem to have apparent harm in it but still need to be executed and cannot fall under the implementation of this rule. Many Islamic laws seem to be harmful, and based on this General rule, either they should not be implemented which may lead to contradiction, or must be implemented and do not fall under the jurisdiction of this general rule because they are exempted, if such then the excluded parts are plenty, such as:

Examples of exemptions: The punishments and penalties in criminal laws, such as penalty of death, steeling, fornication, and the financial penalties (DEYAAT). Guaranty money, obligatory charities such as Khums and Zakaat, penalties of worship such as on fasting and swearing or in HAJ. Haj and defense war. Rule of impurity, if a huge pot of food or soup was defiled by a drop of blood, the whole soup needs to be eliminated. All these are cause of decrease, of loss to person or his wealth or his dignity. If this is the case then the enemies of Islam will attack Islam of being a harmful religion, because many rules and laws are harmful.

Responds of different scholars: 1.The exemption general is observed on the specific title and not the specific individuals of such of the title. For example: If it is said respect the people (general) except the corrupted ones (specific title), though even if the corrupted individuals were plenty more than non corrupted, we will still consider this general statement valid. ALKHOEI: We must observe this a real true statement ( القضية الحقيقية ) regardless of how it is implemented externally, yes if we take this statement as an External statement then it will not be correct ( القضية الخارجية ) For example if we say that every one in this room will get a candy except for the adults, and there were 50 people in the room and the children were only five. Then in reality it does not matter how many individual were excluded, because we are not observing the implementation on external individuals and their numbers, but we are observing as a real general statement and its excluded titles, regardless of its being general or not in external world.

Responds of different scholars: 2. This general rule is exception to every rule which does not appear to have from the beginning such as salaat, so if salaat is going to be a cause of loss, then the rule of LA DHARAR will be implemented. But in the case of penalty and punishment, this rule it out of its jurisdiction and implementation. So as we are saying if the Islamic rule or law was not harmful from the beginning and later on becomes harmful, then base on this rule such obligation and forbidden act rule is void. And if the Islamic rule or law has some loss or harm from the beginning such as punishments and penalties, then such are not subjected to the rule of DHARAR and are out of its JURISDICTION.

Responds of different scholars: 3.In the rules of Khums (not Zakaat which has different rule of ownership), we cannot assume any harm, because the legislator did not consider the 1/5 under the ownership of the payer, he does not own it, so if he does not own it, then he will not have loss if he pays it, it is not his from the beginning, therefore it should not be a loss for him. 4. The concept of a conflict between two harms, the larger harm is avoided, such as penalties and punishments are but to keep away the bigger harm from the community. So if there are two harms, then there a rule we will take later which says if there is a conflict between the harmful situations, then the greater harm should be avoided. So this general rule does not include such areas.

Opinion of ERAWANI A Muslim community is like one family, the rich helps the pour, the house leader will take care of maintaining the order in the family, so if any one harms other members of the family, the leader takes care of some disciplinary actions, which might have some harm or loss to the criminal but the out come will be a more general benefit to other members and less harm to the entire community. So prevailing justice in a community even it leads to harm or loss to a criminal but at the end there is a great benefit to the whole community, which is reduction of greater loss and greater harm. The same is if a germ is in a huge pot of soup, the whole soup will be eliminated, to prevent the illness or disease which is to bare a minor harm in order to prevent a major harm. Therefore eliminating a huge pot of soup for the purity can be understood. He same can be said about war in defense.

Muslims are like one body: If one part of the body is suffering, then the whole body suffers. The rules and laws of Islam bring a greater benefit to the community and prevent a greater harm from affecting the community. Islam observes at the benefit of the community as a whole and every single individual, so if a conflicting situation where the harm can be avoided by causing some type of loss to an individual such as executing punishments, then the causing harm to an individual prevails. Having said that, the misconception and the attacks on Islam can easily be rejected. On the contrary this concept makes Islam a unique, just and worth of praise religion. The harm or loss which is associated with the laws and rules of Islam which bring a greater benefit to the community, as long as they bring such benefit, the society of intellects or the intellects accepts it and acknowledges.

Best of nations: By avoiding harm كُنتُمْ خَيْرَ أُمَّةٍ أُخْرِجَتْ لِلنَّاسِ تَأْمُرُونَ بِالْمَعْرُوفِ وَتَنْهَوْنَ عَنِ الْمُنكَرِ وَتُؤْمِنُونَ بِاللّهِ وَلَوْ آمَنَ أَهْلُ الْكِتَابِ لَكَانَ خَيْرًا لَّهُم مِّنْهُمُ الْمُؤْمِنُونَ وَأَكْثَرُهُمُ الْفَاسِقُونَ {110} [Shakir 3:110] You are the best of the nations raised up for (the benefit of) men; you enjoin what is right and forbid the wrong and believe in Allah; and if the followers of the Book had believed it would have been better for them; of them (some) are believers and most of them are transgressors. وَلَكُمْ فِي الْقِصَاصِ حَيَاةٌ يَاْ أُولِيْ الأَلْبَابِ لَعَلَّكُمْ تَتَّقُونَ {179} [Shakir 2:179] And there is life for you in (the law of) retaliation, O men of understanding, that you may guard yourselves. These laws and rules bring life, security and peace in the Muslim community and keeps them united. Therefore the best of nations.