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In the previous article , we looked at how the legal maxim, “Do not cause harm and do not get harmed [lā ḍarar wa lā ḍirār]” was implemented in Islamic Law throughout history.
Now we look at some sub-maxims under the same category which helps Muslims arrive at decisions about what to do in life.
Harm Should Be Removed [Aḍ-Darar Yuzālu]
One of the ways to apply the “do not cause harm” principle is by removing any harm that already exists. This is technically a sub-maxim because it addresses an issue where harm has already occurred.
For example, early Muslim scholars discussed the question about what to do if someone installed a water drain pipe in their home but it ended up flowing out onto a public area such as a sidewalk.
The issue becomes slightly confusing because technically the owner of the home has the right to install anything he wants in his own property.
However, the flip side of the issue is that others are being harmed by that. Using the principle of “harm should be removed”, scholars understood that the harm resulting from the drain pipe must be removed.
Principle of Preemption
The basis for such a ruling is spread throughout different guidelines which Islam had already established. For example, the Prophet Muhammad established the principle of preemption [shufʿah] by saying: “The right of preemption is valid in every joint property, but when the land is divided and the way is demarcated, then there is no right of preemption.” [Bukhārī #2496]
Preemption is the right to purchase something before another person. The Prophet specified that a partner in a land has first priority to purchase the share of the other partner whenever it is up for sale.
This right to purchase first, at a reasonable price, ensures that a person who may be directly affected by a new owner will have first priority to purchase something so they will not be affected by the transfer of ownership. Such a rule removes the potential, or likely, harm that would occur.
Closing Mosques and Cancelling Umrah
In the case of the Novel Coronavirus, Muslim scholars have relied on the same principle to “remove harm” by closing masjids for jumuʿah prayers and canceling ʿUmrah visas to Makkah.
This seems like an unprecedented and drastic move, which it is. However, it is justified based on the principle of “removing harm” given the current understanding of the effects of COVID-19 and how it spreads faster through large gatherings where close contact is normal. Both the Friday Prayer and Ṭawāf around the Kaʿbah are gatherings which cause people to congregate close to each other and it would be almost impossible to have such large gatherings observe some type of social distancing measures.
By using the “remove harm” principle the masjids have been forced to close, including the masjids in Makkah and Madinah.Pages: 1 2