APPLICATION OF THE MAXIM :’’ HARM MAY NEITHER BE INFLICTED NOR BE RECIPROCATED”

ON THE CONCEPT OF REVOLUTION (ARAB SPRING)

DR. salaheddine youcef AZIEZ/G1321317

Outline

• Introduction

• Source , importance and meaning of the maxim

• Relationship with the subject

• The sub-rules(related maxims)

• Applications

• Conclusion

INTRODUCTION

Historically, the Hanafi jurists were the first toformulate legal maxims. An early Iraqi jurist, abo Tahir ad-Dabbas, collated the first seventeen maxims, and AbulHassan al-Karkhi (d.340) increased this to thirty-seven.

The four schools of Islamic jurisprudence are inagreement over five of the Islamic Legal maxims that theyclasp within themselves the entire quintessence of theIslamic Shari‘ah.

Legal maxims reflect settled principles of law to whichjurists appeal when confronting new legal cases.

One such maxim of Islamic political law stipulates thatscholars are to avoid any ways which give harm: harm mayneither be inflicted nor be reciprocated.

PRIMARY SOURCES

• Al-Quran

• Sunnah

• Ijma’

• Qiyas

SECONDARY SOURCES

• Istihsan (juristic preference of the stronger principles)

• Istishab(Presumption of continuity)

• Maslahah Mursalah (extended analogy/ consideration ofpublic interest)

• Sadd al-Zarai’ (blocking unlawful means to an unlawfulend)

SOURCES OF QAWAID FIQHIYYAH

4

Maxims which are reiterated from a particular text of the Qur’an or Sunnah

Carry greater authority

• Examples:

• La darara wa la dirar

• Al-’umuru bi maqasidiha

Maxims which are formulated by the jurists.

• Examples:

• Daarar la yakono kadimen.

Types of legal maxims

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Source and importance of the hadith/maxim(19)

Source:

• Is derived from the sayings of the prophet(S A W) :“La darara wa la dirar ” narrated by ibn Majah anddaraqutnee on the authority of abu sa’eed al-khudree. is considered one of jawami’ al-kalim

• This Hadith is present in the 40 Ahadeeth of ImamNawawi (RA), Hadeeth number 32 .

• This Hadith is a great maxim of fiqh and Is one ofthe five Universal Legal Maxims.

Cont..• Many text from the Qur'an and Sunna that confirm this maxim.• ALLAH the Almighty said : <...والدةتضارال> :“No mother shall be treated

unfairly on account of her child”{bakara:233}• ALLAH he also said: <..لتعتدواضراراتمسكوهنوال>: “but do not take them

back to injure them,”{bakara:231}• He also said: <..التهلكةإلىبأيديكمتلقواوال>: ‘’Make not your own hands

contribute to (your) destruction.• These verses prohibit causing harm against each other in any form, by

any means and at any time. Islam prevents evils before they occur bylaying down laws controlling peoples’ behaviour in utilization ofaccessible resources.

• Our prophet(S) ا<...حرامالمسلمعلىالمسلمكل> البخاري : which means:" verilyyour blood, your property and your dignity are inviolable against you“We can see The practical legal maxim in the prohibition of transgression against life, dignity, and property.

Importance:

• This legal maxim is one of the pillars ofshari'ah.

• Ibn al-najjar said: " this legal covers a limitlessarea in fikh and it probably covers half of it.

• Imam al-Suyuti said: “Pleased be informedthat this maxim become the basis of manyfiqh chapters.”

• Ibn nadjim said.“The maxim governs manyrulings of fiqh”.

The meaning of the maxim

• The scholars are divided regarding the meaning ofthese two words:

• Darar: means causing harm to another unintentionally,

• Dirar: means causing harm to another intentionally,

• Ibn hajar haythami said in his explanation of al Nawawiforty hadiths:

Darar: means causing harm to another intentionally,

Dirar: means causing harm to another in response to aprevious harm caused by that person,

• There should be neither harming (darar) norreciprocating harm(dirar).

• Proscribes all illegal forms of harm that may beinflicted by one person on another.

• All harm, and injuries…must be eliminated.

• This hadith/ maxim implies prohibition of all sortsof private and public harms.

• The maxim forestalls harm before they take placeand urges their removal if it occurred.

Cont..

Cont..

• This legal maxim is the basis for prohibitingharmful act and arranging for anycompensation and punishment for the resultsof the harmful acts .

• This rules also serves as the basis for istislahprinciple in bringing benefits and warding offevil.

• Jurists depend on this rule to decide onsharia rulings for accidents.

Subject of the Maxim

The important conditions of the harm:1. The harm should be real and not imagined.

based on the maxim :’’ the presumption is not considered’’ e.g.;more childbearing will give an impact in the national economy. inthis case the harm is presumptive(zuhaily)

2. the harm should be biggest and ugliest, according to ‘urf3. harm should be illegitimate, However ,causing harm with a legal

sanction is permitted(ta-zir, qisas…).Ibn najim said:....e.g. Enters in fighting the infidels and outlaws

ALLAH(SW) said <..حياةالقصاصفيولكم> meaning: And there isfor you in legal retribution [saving of] life, O you [people] ofunderstanding, that you may become righteous1.bakara2:179

Cont..

• Ibn rajab said: " the prophet (saw) forbids al darar andal dirar that are unlawfully exercised. However,causing harm with a legal sanction is permitted.

For example, if a person violates the prohibitions setby Allah, he shall be punished in accordance to hiscrime, or if a person exercises injustice to anotherperson, the victim can request to retaliate to ensurethat justice is restored-is definitely not what wasmeant here. What is meant here is the harm causedto others unlawfully.

Relationship with the subject

• The Muslim's world and especially Arabic ; passes under resonantslogans! : Reconciliation, freedom, democracy .. with dangerousdoctrinal and geographical changes, encouraged by foreign enemiesand supported by the inattention of the people inside.

• The Muslim state in general and the Arabic one in particular, wasundergoing upheavals through the revolutions or nicknamed theArab Spring!

• That obliges us to On reflection and study of this phenomenondifferently with an analytical mind , based on the legal maxim:“Ladarara wa la dirar”:Harm may neither be inflicted nor bereciprocated.

• All these reasons lead us to recommendations that illuminate ourpath to avoid failures and not make the same mistakes again.

Revolution What is the revolution?:

a- Literally:

- Revolted :(ثار) get excited; spread ….(al-mu’jam al wasiit )

b-Technically:

At the "dictionary of political thought" that was written by a group of115 foreign specialists with world renowned:

"Revolutions are complexes political changes , often in a dramatic way ....where several groups are fighting and including the government to seize thecentral authority, and this conflict could lead to a civil war or guerrilla orcoups military state .... and each group tries to establish a policy (and ofteneconomic) strategies to replace the existing strategy.

The three elements of the revolution: the collapse of the state, conflict forauthority and the establishment of a new state. They not follow a logicalorder.

Assessing the status of the protest during Arab spring

Situation Death tollCountry gouvernement overthrown338Tunisie

government overthrown /

ongoing crisis4300Egypt.

government overthrown /

ongoing crisis2000Yemen

government overthrown /

ongoing civil war25000-30000Lybia

ongoing civil warMore190000Syria

Cont..

• Total death toll and other consequences in all countries:

More 220,670(International estimate, ongoing, > 80% in Syria)

WHERE IS THE MASLAHA HERE?

Algerian’s spring

• Algerian Civil War(1991-2000) was an armedconflict between the Algerian government andvarious Islamist rebel groups which began in1991.

• Death toll

Bouteflika(president of algerian’s republic) saidin a speech on 25 February 2005, spoke of around figure of 150,000 people killed in the war.

• The thousands 'disappeared' (more 18000).

Outcome

Total death: Since algerian’s spring

• Around 400000

• Without disappeared

• Without the losses in economic matter

Our questions is:

• Where is maslahah in all this revolutions?

• Is the situation better from the past (before revolution) ?

• Is it legal the revolution?

Application

• The legal maxim is the basis for prohibiting any harmfulact and arranging for any compensation andpunishment for the result of the harmful acts.

• Ibn al-najjar said: " Rulings in the Islamic jurisprudenceare set either to bring benefits of ward off harm and,therefore, they include the protection of the fivenecessities which are religion, life, posterity, propertyand dignity"

• It aims at achieving the objectives of the shari-ah andconfirming them by warding off harm or reducing theirimpact".

Cont..

• As we understand, the philosophy of Islamic lawis to preserving the five necessities and eliminateany harm upon human’s believe, body, dignity ,intellect, and wealth and promote leniency andeasiness.

• Ibn taymia said in his book majm-ue el-fatawa(14/86):all scholars was consented on theprohibition of blood and dignity because Islamiclaw has decided to save these necessities andprevented any attack against them.

Related maxims

1. The harm element should be eliminated (al-dororyuzal)(20-mejelle)

• Some scholars use this maxim in same meaning thatthe hadith but The correct is the related maxim.

• Because hadith prevent any harm so the maxim isbased on the elimination harm after his existence.

• Al-Suyuti says: Please be informed that upon thismaxim many chapters of fiqh base their rules….egappointed qadi and imam (hakim) … keep out apostateand bughot (rebels).

Cont..

2. '' An injury cannot be removed by a similar injury'':al-darar la yuzalu bi-mithlihi(25/mejelle).

It also not permitted to eliminate this harm with agreater harm.

The condition here is that harm should be eliminatedwithout causing harm to other people, if possible.

3. ''to avoid public injury, a private injury may beendured'‘(26/M): (yutahammalu addharurul akhas lidaf'id dhararil 'aam)

Cont..

4. ''the lesser of two evils is to be chosen'‘(29/M): Yakhtaaru ahwanu alsharraini

Meaning of the maxim:

One who has been afflicted by two misfortunes , he/she can choose thelesser

Which one is the lesser? Freedoom with turmoil or oppressionwithout trouble.

5. ''preventing harm is preferred over attracting benefit'‘(30/M): (dar'ul mafaasid awlaa min jalbil manafi').

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

Which one is the lesser? Freedoom with turmoil !! or oppression without trouble.

CONCLUSION

• So the term "revolution" often revolves around the excitement, revenge ,violence, and the violent change was observed since the first revolution inIslamic history against Ottoman caliph (RAA) and other revolutions thatfollowed after

• The revolution bring the real, big and illegal harm .• Shaikh ibn uthaimeen says: I advise you to listen the cassettes of the

scholars who are known for uprightness and integrity (I’tidaal), and whoare not known for revolutionary ideology.

• The primary objectives of the sharia is the realization of benefit to thepeople, concerning to their affairs both in this world and the hereafter.

• Al-darar that needs to be eliminated here is the one that is clear ,excessive, general or specific if possible.

This hadith/maxim include the protection of the five necessities(AL-DARURIYYAT) which are :protection of al-dine, life, dignity, intellect and ofproperty.

In case of negligence , it will lead us to the total disruption and disorder andit could lead to evil ending.