Harm Must Be Eliminated: Legal Maxim 4

Legal Maxim 4

 

الضرر يزال

Harm must be eliminated

The basis for this axiom is the hadith: "Harm may neither be inflicted nor reciprocated in Islam." The scholars differ over what is meant by the words inflicted and reciprocated. Some scholars stated that inflicted harm is harm caused by one individual, while reciprocated harm refers to two individuals causing harm to each other. Another view is that inflicted harm entails that the person inflicting the harm is benefiting in some way, and reciprocated harm entails that the person inflicting harm is not benefiting from the harm caused (Kitab al-Qawa'id).

Like the previous legal maxim, this axioms, upon which many rulings are based, enters into numerous sections of fiqh. Furthermore, this legal maxim has various sub-divisions:

1. Necessity makes the unlawful lawful, such as eating unslaughtered dead.
2. Necessity is measured in accordance with its true proportions, such as only eating from unslaughtered dead the amount needed to keep oneself alive.
3. Harm must be eliminated but not by means of another harm, such as when a person eats the food of another to satiate his own hunger.
4. A greater harm is eliminated by means of a lesser harm. This axiom is derived from the incident of the desert Arab who urinated in the mosque, and the Prophet (may Allah bless him and give him peace) ordered the companions to leave the desert Arab as he was in order to eliminated a greater harm. 
5. Prevention of evil takes priority over the attraction of benefit, such as leaving the group prayer or Friday prayer due to illness.

The various levels in this axioms are:

1. Necessity: al-Zarkashi defines this as reaching a point where one would die, or come close to death, if an unlawful thing is not taken advantage of.
2. Need: where one will not perish if an unlawful is not taken advantage of, however, one will fall into hardship. Need in this sense does not permit the unlawful.
3. Benefit: something that one desires.
4. Adornment: a thing of amusement.
5. Surplus: consuming more than one needs or utilizing doubtful things.