General Rules of Jurisprudence Lesson 7 la dharar –no harmلا ضرر

General Rules of Jurisprudence Lesson 7

• LA DHARAR –NO HARMلا ضرر

• Part two: NAHEE or NAFEE

• Four opinions:

• Prohibition (NAHEE) of action

• NAFEE (Negating) the prevented harm

• NAFEE (Negating) the rule or the legislation of the rule from the beginning.

• NAFEE (Negating) the rule by negating the subject (HARM).

• Selection of ERAWANI

Reminder:

• The LA is negating, but what is the meaning behind it, negating or prohibition.

• There are two LA (NO) in Arabic language,:

• For prohibiting an action, LA NAHEYA, prohibiting NO, which prohibits an action, which precedes a verb. NO Smoking (LA TAF’AL Do not do or NO DOING)

• For negating an existence of a thing, LA NAFEYIA, negating LA, which comes before a noun, LA RAJOL NO MEN in the house.

• The huge debate between the great scholars is about: what kind of LA is in the hadeeth of LA DHARAR, is it a prohibiting or negating.

• Based on the understanding of this LA (NO) we have four opinions:

• Prohibition (NAHEE) of action

• NAFEE (Negating) the prevented harm

• NAFEE (Negating) the legislation from the beginning.

• NAFEE (Negating) the rule by negating the subject (HARM).

1-Prohibition (NAHEE) of action

• The meaning of LA DHARAR –NO HARM لا ضرر:

• There is no doubt that the LAA is NAFIYA or negating, but it is used for the meaning of prohibiting an action associated with HARM, because HARM ضررis not an action or a verb, but it is a noun verbal noun, so the LA is preceding a noun, therefore it has to be negating (NAFIYA). But it has used for NAHE metaphorically, so as it says (NO HARMING is permitted).

• This opinion belongs to SH. ALSHREEA ABO ALHASAN AL-ESFAHANI.

• His evidence that the negating can be used metaphorically to prohibit an action:

• It has been used in the resources of Islamic legislation (SHAREEA), such as:

• فَلاَ رَفَثَ وَلاَ فُسُوقَ وَلاَ جِدَالَ فِي الْحَجِّ (these are verbal nouns meant for actions)

• the pilgrimage therein, there shall be no intercourse nor fornication nor quarrelling amongst one another (Shakir 2:197)

Evidences of ESFAHANI

• قَالَ فَاذْهَبْ فَإِنَّ لَكَ فِي الْحَيَاةِ أَن تَقُولَ لَا مِسَاسَ

• [Shakir 20:97] He said: Be gone then, surely for you it will be in this life to say, Touch (me) not;

• The Prophet (S): (LA TAA’ATA LE MAKHLOOQIN FEE MASIYATIL KHAALIQ) (لا طاعة لمخلوق في معصية الخالق) There is no obedience to a creature when there is disobedience to the creator.

• (لا غش بين المسلمين)There is no cheat amongst the Muslims.

• There is no doubt for the one who doubts in abundance (لا شك لكثير الشك)

• There is no REBA (interest usury) between the father and his son. (لا ربا بين الوالد و ولده)

• In all these examples the aim is the action but the phrase is negating and not prohibiting.

• 2. The linguistic proof or the minds jumps to the prohibition of the action when these type of phrase used.

The respond of ERAWANI to AKHUND:

• The HARM (DHARAR) is the affect of an action and not an action. Some of the examples were mentioning the action it self but in a nominal phrase (verbal noun), like the HAJ. (DHARAR is noun of a verbal noun)

• If it is used in some example as a Prohibition of an action, does not necessary mean that here also it is used in the same way.

• The metaphor requires a clue or a QAREENA, which is not clear in this case.

• The concept of the minds jump is also not proven in such case. (LA RAJOL it does not jump to the mind, that NO MAN SHOULD STAY)

• The linguist or the system of language is not a proof in the use of the phrases, it is proof only in the individual words and it real or metaphorical meanings, not in sentences.

2- Prevention from expected harm

• This opinion is of FADHIL AL-TONY, he mentions: that if some one stops him self from any action which might lead to harm, then he has secured him self from HARM, that means there is no HARM should exist, that means in Islam a person must not allow the HARM come to existence, so if it does not come out into existence, then there is NO HARM which is the hadeeth, so NO HARM means negating any HARM which is expected to come into existence.

• He mentioned that this hadeeth is a legislation for the liability for the damage, so if the HARM was not prevented, then the liability is fixed to remove the affects of HARM. In other words if HARM comes to existence it should be removed by the liability so there may be NO HARM or its affects.

• Rebuttal of ALKHOEI: A person should prevent the harm from coming into existence, such indication requires extra evidence, because it is a restriction to the ABSOLUTE wording of the HADEETH, and such evidence is lacked.

• More than that it is specification to a larger area, and the specification is exceptional or exemption or exclusion to the smaller area of a larger area general.

General is specified in a small area:

• Not every harm is guaranteed, or is associated with liability, for example:

• If a person’s leg is broken by himself accidentally.

• His house is burn, his books are burnt accidentally.

• If the bread earner of the household dies, the household's harm is not guaranteed.

• And so on there is a large area where a person is harmed but no one takes the liability.

• Yes if a person dies in the crowd of Salaat, pilgrimage, or the murderer was unknown, in this case Imam Ali (AS) judged the liability is on the treasury of Islamic state. قضى أمير المؤمنين (ع) في رجل وجد مقتولا لا يدري من قتله, قال : اذا كان عرف له اولياء يطلبون ديته اعطوا ديته من بيت مال المسلمين,....

Explanation of the HADEETH:

• In the authentic narration by Imam AS-SADIQ (AS) who said: that the chief of believer (AS) gave a decree in a man who was found killed and his murderer was unknown, he said: If he has relatives asking for the blood money, then give it to them from the state treasury (BAYTIL MAAL), the blood of a Muslim is not wasted, because (a Muslim if he does not have any relatives, then ) Imam inherits him, and so his blood money is on the Imam, and they can do (funeral) salaat on him and burry him. And he also decreed on a man died because of crowd of the people on Friday. Indeed his blood money is from the state treasury of Muslims.

3- Negating the RULE (annulling it)

• NO HARM (LA DHARAR) that means; that there is NO RULE (valid) which might lead to HARM. So if the rule is going to become a cause of an action which leads to HARM, then Islam says there is no such rule (NO HARM =NO RULE which leads to HARM)

• This opinion is of the two great ones AL- ANSARI and AL- KHOEI, and there are three ways to understand this method:

• A-There is an implicit word between LAA and DHARAR which is HOKM لا (حكم ينشأ منه) ضرر

• such as the verseوَاسْأَلِ الْقَرْيَةَ الَّتِي كُنَّا فِيهَا وَالْعِيْرَ الَّتِي أَقْبَلْنَا فِيهَا وَإِنَّا لَصَادِقُونَ {82}

• [Shakir 12:82] And inquire in the town in which we were and the caravan with which we proceeded, and most surely we are truthful.

• B-. LAA HOKM YES-TALZIM DHARAR or has the metaphorical meaning of DHARAR, so they both are replaceable metaphorically, i.e. NO RULE WHICH IS ASSOCIATED WITH HARM

C-The Generating Causeالسبب التوليدي

• In this use the claim is that is it a literal known use in the linguistic system, and is not a metaphorical use. The replace of the effect with the cause in the sentence, that is if there was only one generating cause for such effect. So if this rule was the only cause for a harm, then we can use the (harm) instead of the word (rule) (HOKM), so if we say Ali killed Zaid, but it was not Ali who killed , Ali was the cause of the bullet which killed ZAID, he was the generating cause for that bullet, so if it was not for Ali the bullet would not have been shot at Zaid and he would not have died, so it was the bullet which killed him, and we say Ali killed him. Here also the Rule is what could direct a person towards harmful actions, and such rule is negated in Islam and it is void. So NO HARM means NO RULE which is a generating cause for HARMFUL actions or leads to HARM. This type of use is not a metaphor and is so far the closest direct meaning of negating LAA here. (Another example: He burned the house, it was the fire and not him).

4-NAFEE (Negating) the subject (HARM).

• This opinion belongs to author of KIFAYA ALAKHUND ALKHURASANI, it is similar to the third opinion, but instead of considering the cause of harm the rule, he considers the SUBJECT (MOWDHOO) , because to be precise the cause of the HARM is not the HOKM or rule, but it is the action it self which is associated with that HOKM or rule, so the harming cause is the action for example, if the WODHOO or the water is harmful, based on the third opinion the obligatory rule is void, based on this opinion the action of WODHOO or the obligation (action) it self is not to be existed, NO HARM based on the third opinion was NO OBLIGATORY RULE (harmful rule), based on forth opinion NO OBLIGATION ( harmful action), so if there a SUBJECT or MODHOO (which activates the rule from legislation to activation) is harmful, the MODHOO does is not considered a part of the activation of the HOKM, the HOKM can be activated without it. So NO HARM, NO SUBJECT IS REQURIRED TO ACTIVATE THE RULE if it is harmful.

5-Respond of ERAWANI

• The fourth opinion is supported by that if a subject is excluded the whole rule is not void, but the subject is void, for example if a person cannot perform one part of the WODHOO, he has to perform different type of the WODHOO.

• Ayatollah ERAWANI discusses deeply ( the deep discussion will be taught in the higher levels) ,all the four methods and rejects some completely and accepts some, partially. He concludes these points:

• We have to separate between both LA DHARAR and LA DHERAAR, they both have different indications.

• In LA DHARAR he supports the 3rd opinion ALKHOEI, ALANSARI, but he has his different approach (he weakens their approaches) , he says the RULE is negated because the word DHARAR does not mean RULE or HOKM, but HARM means deficiency or decrease or damage, and the Prophet (S) used it literally, pointing out in the WORD DHARAR that all the rules which lead to HARM, because when he says NO HARM, it is understood that he is the legislator, and he is talking about the rules and laws only. So when he says NO HARM, that means directly from the mouth of the legislator NO RULE which generates HARM or DHARAR. (Hence no need for implicit word RULE).

ERAWANI and LA DHERAR

• 3. He supports the opinion of Sh. AL-ESFAHANI in this, because DHERAAR has the sense of action in it, it is a verbal noun (MASDAR) and MASDAR or a verbal noun is used as a verb in some places, so LAA DHERAAR means no causing HARM to others, it has straight indication, that causing HARM to others is forbidden, so this LA has the meaning of NAHEYA or Prohibition which precedes the verb. So it is like EDHRAAR أضرار

• SAMARA was causing harm to the ansarian, and cutting of the branch was one of the ways to stop his harm.

• Conclusion:

• LA DHARAR: LA HOKM or NO RULE

• LA DHERAR: LA EDHRAAR or NO CAUSING HARM TO OTHERS.