HT2201

Legal Maxim in Halal Industry

Harm must be eliminated

Facilitator:
Pg Dr Hjh Norkhairiah binti Pg Hj Hashim
Assistant Professor
Halalan Thayyiban Research Centre
Harm must be eliminated

• All kinds of detriments, harms and injuries must be

eliminated according to this leading maxim.

• The maxim has grounded on numerous quranic verse and

on the well known hadith :

• ‫ال ضرر وال ضرار‬

• Harm may neither be inflicted nor be reciprocated
And do not consume one another's wealth unjustly
• However, it may not possible to remove the
harm completely; hence it is to be
eliminated as far as possible as corollary
says:

• ‫الضرر يدفع بقدر اإلمكان‬

• “Harm is to be removed as far as possible
The rule provide us with the guideline to adjust
our policies in situations which, although lawful,
are fraught with risk and harm.
• Automation
would, in the
short run, lead
to
unemployment.
• Industrialization
may lead to
pollution of
atmosphere and
overcrowding.
•Public
expenditure on
economic
development
may have an
inflationary
effect.
‫الضرر يدفع بقدر اإلمكان‬
“Harm is to be removed as far as possible

• These risks of damages would not suggest

that the efforts towards economic
development should not be discontinued.
• What the rule amount to is that, such efforts
should be continued with the serious effort
to minimize the adverse effects as far as
possible
Source of maxim

•Derived from the sayings of the

prophet SAW :
‫ال ضرر وال ضرار‬

Neither harm nor be harmed.

Difference between al darar and al
dirar

two terms carrying

The first group
the same meaning

The scholar
two terms do have
The second group different meaning
 However the 2nd group of scholar has differed in
the meaning and they assigned to these two terms
as follows:

• 1. Ibn Abd Al Barr said: “for the expert in the Arabic

language al darar is a noun while al dirar is a verb”.
• 2. Ibn Abd al Barr quoted al khusaini on the meanings
of the hadith’s two terms in its context: “Al khushani
said: al darar is what benefits you but harms your
neighbor, whilst al dirar is what brings you no benefit
but still harms your neighbor. This opinion enhanced
the meaning in the hadith
• 3. Al Darar is the initiator in harming another person,
while al dirar is harming another in response to an
initial harm caused by the latter.
• Al tufi said in his explanation of al nawawi forty
hadiths: al darar means causing harm to another
intentionally, while al dirar, means causing harm to
another in response to a previous harm caused by
that person, which concludes to mean that both are
intending to cause harm to one another
•4. Al darar is to harm other without
getting any benefits from doing so.
Al Dirar is to harm others and to be
the initiator in doing so.
 What seems to be the predominant meaning is the
third one because:

3. Al Darar is the • It is appropriate in terms of

how the terms were expressed
initiator in harming by the prophet SAW
another person,
• The word al dirar suggests the
while al dirar is occurrence of confrontation
harming another in between two acts
response to an initial • This meaning is a
harm caused by the comprehensive meaning as
latter. compared to the others
Other evidence for this legal maxim – from
the holy quran

• 1. Surah Al Baqarah (231):

• And when you divorce women and they have [nearly]
fulfilled their term, either retain them according to
acceptable terms or release them according to
acceptable terms, and do not keep them, intending harm,
to transgress [against them].
• Divorce is twice. Then, either keep [her] in
an acceptable manner or release [her] with
good treatment. (Surah Al Baqarah: 229)
• The previous two quranic verse were revealed to
deal with a situation in which a man would divorce
his wife but then decide to take her back with no
intention to retain her as his wife as he truly knows
that he does not want her nor keep her as his wife .
His purpose in taking her back is to harm her by
causing her iddah period to be longer or by any
other way
• The previous quranic verse emphasize
on prohibiting harming people and
causing damage to them, showing the
seriousness of the matter and that
causing harm to others is prohibited
whether the harm is a minor or major
one.
• The following hadith support this maxim.
Ma’mar (Allah be pleased with him)
reported the prophet SAW as saying :
• “ He who hoards is a sinner.
 Al Imam al Mazri commented on this hadith by
saying :

• “the basic meaning of this hadith is to prevent harm.

Therefore, whatever harms muslims has to be removed.
If buying something in the country inflates its price and
hence harms muslims, then the respective buyer has to
be denied from making the purchase .
• Scholars have also said: If a person’s food was needed
by people then he must be forced to sell it to them.
• In conclusion, preventing harm is the norm here.
• This legal maxim is one of the pillar of shariah and there are
many quranic verses and hadith , some of which we have
mentioned above that can be used as evidences supporting it.
• This legal maxim is the basis for prohibiting any harmful act
and arranging for any compensation and punishment for the
results of the harmful acts
• It can be also be treated as the foundation for the principle of
bringing benefits and warding off evil or harm.
• It is a tool that scholars depend on to determine the shariah
rules pertaining to accidents
 This legal maxim is the most important and
significant rule in the Islamic jurisprudence.

• It has a wide applications in all different branches of fiqh.

• Ibn al Najjar said: “ this legal maxim covers a limitless
area in fiqh and it probably covers half of it. Rulings in
the Islamic jurisprudence are set either to bring benefits
or ward off harm and therefore they include the
protection of the five necessities which are religion, life,
posterity, property and dignity.
• It aims at achieving the objectives of the shariah and
confirming them by warding off harm or reducing their
impact.
 The restriction of this legal maxim

This maxim generally calls for absolute elimination of harm, however

this elimination is restricted. The harm reffered here is the one done
on wrongful basis.
Ibn Rajab said: the prophet SAW forbids al darar and al dirar that are
unlawfully exercised. However causing harm with a legal sanction
is permitted. For example , if a person violets the prohibitions set by
Allah , he shall be punished in accordance to his crime, or if a person
exercises injustice to another person, the victim can request to
retaliate to ensure that justice is restored – is definitely not what was
meant here. What is meant here is the harm caused to other
unlawfully.
 examples

• We can obviously see the practical example of this maxim

in the prohibition of transgression against life, dignity and
property, based on the tradition of the prophet saw
narrated by al bukhari and muslim which means :
• “verily your blood, your property and your dignity are
inviolable against you”
• However, the following are some of the cases where this
maxim is based upon:
 Dialy life examples:

• 1. Legislating qisas and retribution so that

crimes will not spread widely in the society. For
example, a person may not attempt to kill
another one intentionally if he knows that life
execution through qisas would be the
punishment for his criminal act.
• 2. Appointing judges to ensure justice in the
society and that people’s rights are preserved.
• 3. if a building that was newly constructed on a property
of its builder causes darkness in the neighbor’s room to
the extent that the neighbor is unable to read or write
then the building has to be removed according to article
1201 in the majalla al ahkam al adliyyah . The harm in
this case is considered excessive.
• 4. if a person’s tree branch grows such that it is extended
over his neighbour’s house and causes harm to his
neighbour, then the tree owner must cut off or remove
the branch.
 Examples related to commerce:

• 1. the shariah prohibits certain transaction that cause harm to others such
as:
• Sale of najasah (fraudulent overbidding)
• Sale of muzabanah (sale of a known quantity for unknown quality or price)
• Sale of munabadhah (sale of throwing e.g: clothes, at the commodity of sale
from one towards another to signify sale)
• Sale by a city dweller to a desert dweller,
• Sale of drugs
• Sale of stolen obvject
• Sale at a deferred payment.
2. allowing people to return sold items because of
defect discovered on them or because of other
types of options such as :
• - khiyar al ta’yin
• - khiyar al ru’yah
• - khiyar al ghubn
• - khiyar al taghrir
• - This is to prevent harm to the customer who would
have lost his money for a worthless item. Furthermore,
not allowing such a thing may also result in the spread of
fraudulent activities in this society.
• 3. Tt is not permissible to conclude an agreement on the
commodity before its arrival to the market because of the
possible gharar to the seller. The seller in this case does not
know the price of the commodity and hence may be harmed
by selling the item at an undervalued price.
• 4. Traders of a particular market cannot sell an item to a
bargainer at one price and at the same time, sell the same
item at a higher price to a non-bargainer. This must not be
done as it harms the buyers.
• 5. No one is allowed to secure special treatment by the
state which would enable him to be the sole sellerof a
particular commodity i.e a monopoly.
• The privilege of being the sole seller of a particular
commodity is considered unjust for two reasons; firstly, he
has unlawfully denied others from selling that particular
commodity and secondly, he is now at liberty to sell at any
price and may be tempted to inflated the price.
Related maxims

• ‫الضرورة تبيح المحظورة‬

• Necessity Dictates Exceptions

• In means in an emergency situation people are

allowed to undertake the actions which are
prohibited for them in normal situation as far as
Islamic law is concerned.
• As to the application of this rule what has been stated in the
elucidation of the majalla al ahkam al adiliyah that the valid
and legal authorities do have the right to seize the
property of the person, who does not want to settle the
debt despite being solvent, without his consent or to take
and sell it by force in order to settle his due debt. One
other principle which is relevant here that says:
• ‫الضرورة تقدر بقدرها‬
• [Necessity is determined by the extent thereof]
 ‫االضطرار ال يبطل حق الغير‬
Necessity does not invalidate the right of other

If one rents a boat for the defined period and the

period has expired whislst the boat has not reached
thyen shore, then the rental period will extent up to
the time it reaches the shore and essentially the
lessor shall pay the rent for the extenbded period.
The rationale behind it is that as the leasing
contract becomes terminated is justified, the
extension is also justifified.
• The period of leasing and farming has expired while
it is yet to harvest, in this case the contract shall
continue until the harvest at the usual time and the
lessor shall pay the customary rent; but necessity
of the lessor to continue the sowing until the
harvest at the usual time does not invalidate the
right of the owner to be fulfilled with the rental of
his property
• A government may compulsorily take over the property of other
persons if it is necessary for the achievement of important social
and national objectives but it will be required to pay them
compensation.
• Nonetheless, some other maxims are relevant here which would be
regarded as stipulations and conditions for this leading maxims.
• Such a maxim says:
• ‫الضرر ال يزال بمثله‬
• An injury cannot be removed by a similar injury
 Other corollary:

•‫يتحمل الضرر الخاص لدفع الضرر العام‬

• To Avoid Public Injury, A Private injury may be endured

Among the applications:

- Sale of property of a proscrastinating debtor to settle his debt
- preventing the monopolize to sell these with regular price in order
to prevent public harm
• It is reported that prophet SAW disallowed the middlemen to
bargain with visiting village supplies before they reached the
market.
• The rationale behind this is that it had adversely influenced free-
market operation and proved to be detrimental to the interest of
bona-fide (actual) sellers and cunsumers.
• Thus the rule of choosing the lesser evil gives the government wide
powers to impose restrictions and controls on traders and members
of other professions and to regulate ownership and consumption.
 Another corollary says:

•‫الضرر االشد يزال بالضرر األخف‬

• A greater injury may be avoided by a lesser
injury
• where the government may compel a
resourceful debtor to redeem the debt within
the stipulated time.
• In the combined property if the major
shareholder wants the division of the
property while other partner would get
harmed by this division; the demand of the
major shareholder shall be responded,
otherwise, his harm would be more if not
equal compared to his partner’s harm
through division.
 Another maxim:

•‫الرضر ال يكون قدميا‬

• Harm cannot establish a precedent

• Lapse of time, in other words, cannot justify tolerance of

a darar.
• For example, a government can issue a stop under and
shift age-old noxious would not be an excuse to continue a
thing that has become hazardous.
Another corollary:

• ‫درء املفاسد أوىل من جلب املصاحل‬

• Preventing harm is preferred over attracting benefit

• As application:
• There may be situation in which an act might have certain
benefits while it produces corruption and inequity.
• In such case, the shariah would ban that act despite the
benefits that might appear valid.
• Trading in unlawful items and earning with
unlawful ways might provide employment to a
large number of persons and bring substantial
revenues to the government.
• Nonetheless, the unlawful items in trading must
be eliminated since the removal of corruption has
priority over acquisition of benefits – economic,
social or otherwise.
• Gambling or wager might be an effective source
of collecting funds for philanthropic objectives ,
nevertheless, they must be avoided since the
acquisition of benefits is less important from
the viewpoint of the shariah than the avoidance
of corruption.
• In all the above cases, the occurance of harm is
real and calculable. There may be harm which
has imaginary existence and has remote
probability of occurrence .
Such a harm is not to be considered as a valid
ground of policy as another maxim says:

•‫ال عبرة للتوهم‬

• No reliance on mere imagination
• Hence, production of grape and barley may
not be banned simply on the presumption
that it may lead traders to manufacture
wine or beer.
Thank you