General Rules of Jurisprudence Lesson 9 LA DHARAR –NO HARM لا ضرر Part four: Positive Laws of and negative Laws Hadeeth LA DHARAR Prevails (HAKIM) Does this rule makes a real affect? Does the harm invalidate the WODHO? Conclusion:

Positive laws (existing) and negative laws (non existing things) There are two types of rules, Rules which initiates the existence of an action (positive) such as the WODHU being obligatory initiates the existence of WODHU. In such cases there is no doubt the rule (LA DHARAR) can be implemented. Rules which prevents an existence of an action (negative) such as absence of certain rights, such as the absence of divorce right for the woman, in this case if a husband does not divorce hi wife and she is going to be harmed by being stuck in between. So can we implement the Rule of “No Harm” in this case and divorce her from her husband if he was in prison for long time, or not supporting her financially. In this case there is a debate, some said that the Jurist has the right to execute the decree of divorce based on LA DHARAR.

2 nd example: If a person prisons a freeman in his house, and that man loses his job or the pay of those days, then does the prisoner takes the liability to pay for those missed days because of him. The majority refused to hold the prisoner liable, because the hadeeth is in the case of someone's slave being poisoned and the loss was created. So basically people are not liable, and now there is a situation that does the rule of LA DHRAR creates something which is not there? The 3 rd example was about a slave who is not released from duties unless for some reasons, so if that slave is in harm and danger from his master, will we implement the rule of LADHARAR and free him from his duties.

The respond of ERAWANI There is no need to specify the hadeeth (AL DHARAR) as long as the language of Hadeeth is general, so it includes both cases the positive (initiating) and the negative rules (preventing from initiation) rules. In some rules which are supposed to be negative they are positive if we look from other angle. Such as no right of divorce for other than the husband is basically a positive law which states that only a Husband can initiate the divorce. So this law which give the right of divorce (positive) to the Husband also take such right from other than him (negative) Based on that it includes both types of laws, therefore the other than the judge can divorce on behalf of the Husband, the slave is released, and the prisoner is liable in our examples.

Hadeeth LA DHARAR Prevails (HAKIM) Hadeeth LA DHARAR Prevails (Hakim) over all the evidences of the primary rules. That means the this hadeeth and the rule of “NO HARM” is a secondary, it is implemented after the existence of the primary rules, for example if there is no primary obligation, then the rule of DHARAR cannot be implemented, because there is no Harmful situation, but if the HAJ is obligated, all the conditions and subjects are available, and a person is going to perform the HAJJ, and he finds out that for some reasons, it is harmful for him to go, then obligation of HAJ becomes void. LA DHARAR overcomes or prevails or takes over (hakim), this is easily understood by the URF. There has to be a legislation of a rule, in order for LA DHARAR to over come such legislation, other wise if there is no legislation LA DHARA will be useless. ( S. Sistani has a different approach, which will be discussed in higher levels).

Does this rule makes a real affect? A Muslim believes that if there is an obligation then there is a certain (100%) benefit (MASLAHAH) for him, though some times it may be difficult to comprehend such benefits, but it is our belief the laws benefit us, and not our God the holy legislator. The question is, due to the rule of LA DHARAR when the obligatory rule becomes void, does the MASLAHA becomes eliminated with it? The rule of LA DHARAR is a favor of God for the believers, so if the MASLAHA will be removed, there will be no obligatory rule, therefore there will be no favor, so based on that, the MASLAHA of obligation remains, but only the rule becomes void base on the rule of LA DHRAR. The rule LA DHRAR does not have a real affect on the MASLAHA or the reality, but the least what it does is removes the punishment and the accountability from the responsible person.

Does the harm invalidate the WODHO? If harm voids some obligatory rule, then does it invalidate the WODHU? So if WODHU was going to cause harm to a person, and obligatory rule was removed, but if a person did the WODHU and harmed him self, will his WHODHO be valid? The answer is based on understanding two points: 1.The Hadeeth of LA DHARAR indicates the cancellation of the obligatory law, this is the least which it indicates, beyond this that either it invalidates the act if the rule (LA DHARAR ) was violated, or not is not indicated. 2.There needs to be an absoluteness (ETLAAQ) in the verse of WODHO which also indicates that WODHO if done properly is correct generally whether there is harm or not. But such ETLAAQ or absoluteness does not exist in the verse of WODHO.

Verse of WODHU: يَا أَيُّهَا الَّذِينَ آمَنُواْ إِذَا قُمْتُمْ إِلَى الصَّلاةِ فاغْسِلُواْ وُجُوهَكُمْ وَأَيْدِيَكُمْ إِلَى الْمَرَافِقِ وَامْسَحُواْ بِرُؤُوسِكُمْ وَأَرْجُلَكُمْ إِلَى الْكَعْبَينِ وَإِن كُنتُمْ جُنُبًا فَاطَّهَّرُواْ وَإِن كُنتُم مَّرْضَى أَوْ عَلَى سَفَرٍ أَوْ جَاء أَحَدٌ مَّنكُم مِّنَ الْغَائِطِ أَوْ لاَمَسْتُمُ النِّسَاء فَلَمْ تَجِدُواْ مَاء فَتَيَمَّمُواْ صَعِيدًا طَيِّبًا فَامْسَحُواْ بِوُجُوهِكُمْ وَأَيْدِيكُم مِّنْهُ مَا يُرِيدُ اللّهُ لِيَجْعَلَ عَلَيْكُم مِّنْ حَرَجٍ وَلَـكِن يُرِيدُ لِيُطَهَّرَكُمْ وَلِيُتِمَّ نِعْمَتَهُ عَلَيْكُمْ لَعَلَّكُمْ تَشْكُرُونَ {6} The verse restricts the obligatory of WOHDHU with well being and not being sick, so there is no absoluteness in the verse of WODHU.

The interpretation [Shakir 5:6] O you who believe! when you rise up to prayer, wash your faces and your hands as far as the elbows, and wipe your heads and your feet to the ankles; and if you are under an obligation to perform a total ablution, then wash (yourselves) and if you are sick or on a journey, or one of you come from the privy, or you have touched the women, and you cannot find water, betake yourselves to pure earth and wipe your faces and your hands therewith, Allah does not desire to put on you any difficulty, but He wishes to purify you and that He may complete His favor on you, so that you may be grateful.

Conclusion: Even though there is no absoluteness in the verse of WODHU, and the WODHU is not obligated if it is harmful, the verse of WODHU does not indicate the removal of the MASLAHA or the MILAAK or the benefit of the obligatory rule, we for sure know that the MASLAHA was there, and we do not have any evidence that the MASLAHA was removed, the only thing LA DHARAR and the verse of WODHO indicates is the removal of obligatory rule when there is harm, and does not indicate that the MASLAHA of the obligatory rule is removed too. So if the MSALAHA exists, then the WODHO will not be invalid if it was done with harm. Not every thing which is harmful to human is forbidden, but even if we say it is true, then it does not necessarily invalidate the WODHO if it has the MASLAHA, and it was done with the intention of achieving the nearness of Allah (TAQARROB), especially when the real prohibition of such act is unknown. (HORMA WA-QE’IYA), this rule initiates the apparent one.