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QAWAID FIQHIYYAHMAXIM 4 :“AL – DHARAR YUZAL”

Nur Elina Aini Bt MuhamadTengku Nuraisyah Safiyah Jumat

Azira Shareena Bt AmatNatasha Amirah Bt Nordin

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INTRODUCTION OF MAXIM 4

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Al-Dharar YuzalDamage is put an end to or the harm must be

removed all kinds of injury must be removed and

eliminated ‘dharar’ include all kinds of harm whether

involve of individual, society or environment harm that occurred must be remove doing any

precautionary measures which implemented by principle of sadd az-zarai’

it’s mean the prevention is better than cure

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2 categories of ‘dharar’:

i. inflicted intentionally - definitely prohibited and person who involve must bear the consequences of his action

ii. caused unintentionally

- doing without any intention to cause harm or damage to others

Cont’d- Categories

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prohibition of causing harm proved in Al-Quran:

“…make not your own hands contribute to (your) destruction, but do good, for Allah Love those who do good…”, (Al-Baqarah:195)

Hadith:

“there must be neither harm nor the imposition of harm”

(by Sunan al-Daraqutni)

Cont’d- Evidences

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Necessity renders prohibited things permissible (Art 21)

the application are numerous, include exemption from legal duties, minority, duress, forgetfulness

Harm (dharar) is not eliminated by another harm (Art 25)

we cannot avoid harm by doing another harm the repelling of evil is preferred to the acquisition of

benefits (Art 30)

if there a conflict between warding off an evil and securing benefit, the former is given preference over the latter

Cont’d-Related Maxims

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Branch of maxim 4 that we choose and the issues related

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1) BRANCH MAXIM 4: DHARAR IS MEASURED IN ACCORDANCE WITH ITS TRUE PROPORTION

(ART 22)

Known as al-daruratu tuqdaru bi-qadriha (Art 22). Dharar is an exceptional circumstance, therefore, should be given a

restricted interpretation. What is deemed necessary in the case of dharar should be allowed

to the extent required for resolving the harm. Also related on the subject of necessity (dharurah). Necessity is measured in accordance with its true proportion. For example If the court orders the sale of assets of a negligent

debtor to pay his creditors, it must begin with the sale of his moveable goods if this would suffice to clear the debt before selling his real property.

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Issue: Working At Riba-Based Bank

IS IT PERMISSIBLE

FOR A MUSLIM TO WORK IN A

CONVENTIONAL BANK THAT

DEALS WITH THE RIBA?

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RIBADefinition- Literally

- Technically

Types of riba 4 stages of prohibition

Issue: Working At Riba-Based Bank

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Opinion Scholars Regarding This Issue (PROHIBITED)

1) Monzer Kahf

• Any job that requires a Muslim to make a contract of Riba or making negotiation

to customer on behalf of the bank and other jobs related directly in making Riba-

based contract such as deposit and financing in riba-based bank is prohibited.

• Prophet once said “Those who involve in consuming riba or writing it down or

witnessing it or helping those who do that is cursed”.

• Riba is dharar (harm) and it is clearly prohibited by Allah in the Quran, it shows

that riba may bring harm or negative effect to the giver and receiver.

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Cont’d2) Sheikh Muhammad al-Munajjid

Major scholars have issued fatwas stating that working in riba-based banks is Haram,

even if the job does not deal with riba as such guards, cleaners, maintenance and etc.

In Fatwa al-Lajnah al-Daa’imah (15/41); “It is not permissible for a Muslim to work in

a bank that deals with riba, even if the work that the Muslim does has nothing to do with

riba, because he is giving the employees who do work with riba with what they need

because it is helping them to engage in riba-based transactions in one way or another.

Helping them in that manner is cooperating in sin and transgression”.

Allah also has forbid in Surah al-Maidah: 2, “but do not help one another in sin and

transgression”.

Based on Art 22, Muslim can removed or eliminate the harm stage by stage (not once at

all) and based on his effort.

Opinion Scholars Regarding This Issue (PERMISSIBLE)

1) Abdus-Sattar Fathallah As-Sa’eed The economy is usually associated with riba and if he is

obliged to work in this field, then there is nothing wrong or being excused for doing so.

However, he must ask forgiveness from Allah while striving hard to find another job.

ad-dararu yudfa’u bi-qadr al-imkaan (harm is eliminated to the extent that is possible) -

“Muslims must try their very best to find other jobs that does not involve with riba”

Cont’dArt 22- Dharar is measured in accordance with its true

proportion what is deemed necessary in the case of dharar should be

allowed to the extent required for resolving the harm Meaning- if there is alternative to remove or reduce the

harm, we should take those opportunities. Can also be used in case of darurah (necessity)

1970’s Islamic Banking was not yet introduced in Malaysia

Muslims is allowed to work in conventional bank which involve the element of riba since there is no alternative to work in banking sector.

Cont’d Art 21- Necessity makes the unlawful lawful Anything that can harm individual due to the

restriction are permissible in the case of darurah. For example, in the case of difficulty to find another

job which it may give effect on his earning living. He is allowed to work, provided that his intention

working there is to survive, not for seeking leisure and wealth.

However, he must repent and ask forgive from Allah

2) BRANCH MAXIM 4: HARM CANNOT BE ELIMINATED BY IT’S LIKE

Harm must be eliminated (Al-Dharar Yuzal) which indicates the importance to remove all kind of harm.

This branch maxim explain that any harm happen will not be solve by replace with another harm which the sure of the harm will be removed

All necessary measures should be taken to remove the harm as well as to lessen its destructive implications wherever possible

Example: “A private injury is tolerated in order to ward off the public injury” (Art 26)

Its means to repel a public damage, private damage is preferred or warding off public (majority) injury is given preference over personel (minority) injury (Mahyuddin Khalid, 2011)

Issue on the Establishment of Sekolah Harapan for Unwanted Pregnancy Teenager in Malaysia

Introduction about Sekolah Harapan Located in Jasin, Malacca The idea to set up the school was from Datuk Seri Mohd

Ali Rustam As means for “pregnant teenager” The school provides:

Maternity and delivery care

Accommodation facilities

Free education The main factor of setting up the school is to:

Reduce/ eliminate the case of baby dumpling

To reduce the case of zina among teenagers among Muslims

The Arguments on the Issue of Sekolah Harapan

Some scholars argue about the existence of such school will only encourage Muslim’s teenagers to do zina.

It is not the wise solution to eliminate the case of baby dumpling as well as zina

The scholars arguments were relied on the punishment of zina in the Qur’an;

Allah (SWT) has prescribed Hudud punishment for adultery.

o According to the Qur'an, the punishment is Flogging with a 100 stripes (both for men and women) [24:2]. The punishment for ‘faahishah’ which means gross indecency (e.g. stripping naked or 'being lewd' in public)

Cont’d

According to the Ibrahim b. Syed (2012), Islam considers Zina as a major sin, an indecent act, and an evil path. Therefore, protecting society from Zina is an evident aim of Islam

the punishment system in Islam has concerns that Muslims need to be aware of which is concern on the three aspect of any crime which are the criminal (the one who do the crime), the society (where the crime took place) and the victim (the one who was subject to the criminal act)

The objectives of punishment are:

To criminals, punishment is kaffara (purification) and reforming for the re-acceptance into the society.

To society, punishment is a preventive method to save the society from crimes.

To victims, punishment is a mean of retribution.

Punishments were created to protect and secure the ultimate five elements of maqasid Shariah for the people’s interests (al-dharuriyat; necessities) which are;

Al-deen (belief)

An-Nafs (life)

Al-aqil’ (intellect)

Al-mal (wealth)

An-nasil (family and lineage)

However, in many disputes on the establishment of Sekolah Harapan, Datuk Abdul Rahman Abdul Karim offended that the school as a practical strategy to combat the rising numbers of abandoned infants which we often heard about the case of baby-dumped dead

Cont’d

Nevertheless, a pregnant school is not the best solution to social illness that increasingly rampant nowadays.

Because of that reasons Islam set down a severe punishment for an adulterer to flogging a hundred times and set aside for those who are not married and stoned for those who were married, as some of the following propositions:

1. "The woman and the man who committed adultery, then whack each one of them with a hundred times stripes: Let no sympathy to both prevent you to (only) Allah, if ye believe in Allah and the Last Day, and shall (implementation) of their punishment be witnessed by a group of people who believe. "(Surah An Nur: 2)

2. From Abu Hurairah reported that Allah's Messenger gave the punishment to those who commit adultery (not married) with sentence removed (isolated) a year and shot a hundred times"(Narrated Bukhari).

Cont’d

Fiqh Maxim : “Harm Cannot be Eliminated by It’s Like”

The establishment of Sekolah Harapannot the wise solution to overcome the social illness among the teenagers as it is will only encouraging more activity of zina among the teenagers and even produce more children out of wedlock.

In the Surah Al-Isra’ 17:32, revealed that;

‘And do not approach adultery, fornication truly is an abomination and an evil way (that leads to damage)

Meanwhile, Chief Minister, Datuk Seri Mohd Ali Rustam encourages marriage among teens, “For parents who are not able to control their children, they should be allowed to marry instead of committing zina (The Star Online, 2010)

Therefore, it is necessary to eliminate or prevent harm to avoid the lesser harm that can lead to the greater hardship in our life in the world as well in the Hereafter.

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EXAMPLES OF ARTICLE SEKOLAH HARAPAN

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CONCLUSION

Conclusion The word harm in this maxim is general and it includes all kinds of harm.

All necessary measures should be taken to remove the harm In the case of someone who work at riba-based bank thus the rule of

darurah could be applied here as Allah has mentioned in the Qur’an in surah Al-An’am verse 145, "If a person is forced he does not want it and do not (yet) exceeds the limit, then surely your Lord is Forgiving, Merciful.“

The scholars highlighted that those in authority should interfere and prevent such harmful acts.

In the case of the issue on the establishment of Sekolah Harapan in Melaka, we could say that the establishment of Sekolah Harapan is not relevant to be applied as solutions to solve the problems of social illness like zina as well as baby dumpling. It will only give bad impact and greater harm to the society.

Therefore, it is necessary for us as Muslims to eliminate or prevent harm to avoid the lesser harm will lead to the bigger hardship in our life in the world as well as in the Hereafter.

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THANK YOU