General Rules of Jurisprudence Lesson 10

1. General Rules of JurisprudenceLesson 10 The rule of “SELF HARMING IS FORBIDDEN” : The meaning The evidence Conflict between two harmful situations

2. SELF HARMING IS FORBIDDEN • The previous rule LA DHARAR was a general rule of NO HARM AND CAUSING HARM TO OTHERS. This rule is more specific towards harming one’s own self, Sh. Erawani discusses this rule under the previous rule. • This rule has three levels base on the level of Harm: • Severe harm causes death (Forbidden) • Severe harm but not death, such as cutting the leg or hand or poking his own eye. (forbidden) • Harm less than previous two types. (debatable)

3. The evidences of Prohibition: • 1st and the 2nd level of Severe harm which leads to death or perish, there is no doubt that this type of HARM is completely forbidden in Islam. الشَّهْرُ الْحَرَامُ بِالشَّهْرِ الْحَرَامِ وَالْحُرُمَاتُ قِصَاصٌ فَمَنِ اعْتَدَى عَلَيْكُمْ فَاعْتَدُواْ عَلَيْهِ بِمِثْلِ مَا اعْتَدَى عَلَيْكُمْ وَاتَّقُواْ اللّهَ وَاعْلَمُواْ أَنَّ اللّهَ مَعَ الْمُتَّقِينَ {194} • [Shakir 2:194] The Sacred month for the sacred month and all sacred things are (under the law of) retaliation; whoever then acts aggressively against you, inflict injury on him according to the injury he has inflicted on you and be careful (of your duty) to Allah and know that Allah is with those who guard (against evil).وَأَنفِقُواْ فِي سَبِيلِ اللّهِ وَلاَ تُلْقُواْ بِأَيْدِيكُمْ إِلَى التَّهْلُكَةِ وَأَحْسِنُوَاْ إِنَّ اللّهَ يُحِبُّ الْمُحْسِنِينَ {195} • [Shakir 2:195] And spend in the way of Allah and cast not yourselves to perdition with your own hands, and do good (to others); surely Allah loves the doers of good. • By killing others a person will cause death to him self because he will face the death penalty. The same evidence is used for the 2nd level beside other evidences.

4. 3rd Degree or level of self harming: • This one is disputed between the scholars, some mentioned that it is forbidden as previous two levels, based on the following evidences: • The lifestyle of the intellectuals, they avoid what ever is harmful , and the religious authority (Infallibles (AS)) did not oppose such, so there is acknowledgement. Respond: Yes indeed even if the intellectuals avoid harmful things, but on the basis of preference, and not as an obligation, other wise no intellectual would have eaten in excess, or the diabetes would never have eaten excess sugar which might raise the level of blood sugar, or person would not have had excessive intercourse which might be harmful, or no one would have gone out into extremely cold areas in a way they may harm themselves less in a degree less than severe. So the intellect do not necessarily avoid acts.

5. 2nd evidence: The Hadeeth NO HARM • The Respond: This Hadeeth LA DHERAAR or NO CAUSING HARM indicates causing harm to others, and not to one’s self or self harming. • 3rd evidence: The verses which prohibit being unjust (ZOLM) to one’s self, because, self harming is being unjust to one’s own self. • The Respond: Being unjust to one’s own self happens by committing sins, and the whole question here is that is whether harming one’s own self to a lesser severe degree of harm is a sin or not?! Which is the point of discussion. • 4rth evidence: The narrations which prohibit self harming. • The Respond: Such narrations do not define what type of harm is forbidden, on the contrary there are narrations which prefer avoiding some type of harmful food and does not prohibit eating it.

6. Conclusion: • There is no evidence prohibiting every harmful thing, unless if it was both severe types, the 1st and the 2nd level of harm.

7. Conflict between two harmful situations • There are two issues discussed in this book: First issue: If two people are going to be harmed, and the case was taken to the Religious Judge, then which one of them should bare the harm, there is no other way. The famous example is that if a goat’s head was stuck into a pot, and the only way to take it out was either to break the pot or to cut of the head of the goat, and both are owned by two different owners, and both want their belongings intact. If they agree to solve it then there is no problem, but if they both insist on not to compromise, then there is a conflict. • Rule of LA DHARAR cannot be implemented, both ownerships are respected, and no harm can be caused to any one of them (Preference without evidence TARJEEH BILA MORAJIH). • If there was one who belonging was less in the value, then that should be broken or cut.

8. DRAW (QURA’A) • If both were equal, then it is the DRAW (QURA’A), that is the only intellectual solution, and after that there should be a guaranteed compensation for the loss or deficit happened due to the cut or break on the second person. That is to be fair and just, due to: • The RULE OF JUSTICE (QAEDATIL ADL)which is derived from:إِنَّ اللّهَ يَأْمُرُكُمْ أَن تُؤدُّواْ الأَمَانَاتِ إِلَى أَهْلِهَا وَإِذَا حَكَمْتُم بَيْنَ النَّاسِ أَن تَحْكُمُواْ بِالْعَدْلِ إِنَّ اللّهَ نِعِمَّا يَعِظُكُم بِهِ إِنَّ اللّهَ كَانَ سَمِيعًا بَصِيرًا {58} • [Shakir 4:58] Surely Allah commands you to make over trusts to their owners and that when you judge between people you judge with justice; surely Allah admonishes you with what is excellent; surely Allah is Seeing, Hearing.Based on that both should have a fair and balanced judgment.

9. Contemporary example: • If the option was to prevent a pregnant woman from severe harm and let her fetus die, or to save her fetus and let her be harmed, there is no third option. • There is no doubt that if the option was death of the pregnant woman or causing her severe harm, then she will be saved and the fetus will have to die (abortion). • The rule of LA DHARAR can not be used, due to the absence of the factor of preference (TARJEEH BILA MORAJIH). • The solution is abortion, because there is no evidence forbidding the abortion in such case, and there will be the blood money for the existing heir of the fetus. • Should the doctor perform the abortion or the mother by herself? Both can perform, due to the lack of evidence and freedom of any rule (BARA A).

10. 2nd discussed issue of conflict: • Damaging the neighbor’s house in order to fix his house: If a person wanted to build a restroom in his house, beside a shared wall with his neighbor, or a common wall for both of them, and water may seep into his neighbor’s house and cause some damage. It is obvious that if he can build it in another place then that is the solution based of LA DHERAR, but what if there was no other way, and such was necessary in a way that if he does not build the restroom beside that wall he will be in Harm, so we have two harms, either the neighbor or the restroom builder. So implementing LA DHERAAR is not feasible, because both sides have the same level of DHERAAR assumed, if the neighbor does not give the permission it will be DHERAAR on the restroom builder, and if the later builds then it will be DHRAAR on his neighbor. Preferring one over another is TARJEEH BILA MORAJIH.

11. The rule of RIGHT IN BELONGINGS • The rule which says that the builder can build in his property as long as it is his property, there should be no problem, base on the rule which says: • (الناس مسلطون على اموالهم)People have full rights on their belongings (ANAAS MOSALTOON ALA AMWAALE HIM) • This rule has not been proven by authentic resources, very few scholars have mentioned it without proper evidence. The rule of belonging (NAAS MOSALTOON) can only be proven by the lifestyle of the intellectuals, which indicates that people can do any thing in their belongings. But the lifestyle does not indicate any prohibition if such actions will cause harm to others. So the lifestyle cannot prove the prohibition in such causes..

12. BARA’A: Freedom from liability • Solution: Since LA DHERAAR cannot be used, ANAAS MOSALTOON can not be used, then there is no evidence preventing the builder, therefore based on the principle of BARA”A he can build his restroom, (the neighbor will have to take necessary actions to prevent such water from seeping into his house).