Sadd. al-zaraie blocking the mean in Islamic Law

sadd

1. BLOCKING THE MEANS (SADD AL-DHARA’I) Definition Proof of blocking the means as a source of Islamic law Juristic Views Types of permissible acts which lead to an evil and position of Muslim jurists Its relationship with maslahah Conclusion

2. Definition It composes of two words i.e. sadd and dhara’i Literally sadd means preventing or blocking. Dhara’i is the plural of dhari’ah signifies the means which leading to certain end either beneficial or harmful. Technically, sadd al- dhara’i means blocking the permissible acts which lead to an evil.

3. Proof of sadd al- dhara’i as a source of Islamic law Proof of sadd al- dhara’i is established by the Qur’an and Sunnah. 1)The Qur’an; “And do not abuse those whom they call upon besides Allah, lest exceeding the limits they should abuse Allah out of their ignorant.” (al- An’am : 108) In this verse Allah prohibits the Muslims from cursing objects that worshipped by non-Muslim, so to block the means to curse Allah. 2)The Sunnah; The Messenger of Allah prohibits a creditor to accept a gifts from debtor so as not to be a mean of taking interest and taking gifts instead of interest.

4. Juristic Views 1)Hanafi and Syafi’e jurists They did not recognise Sadd al- Dhara’i ’ as a principle of jurisprudence in its own right on the ground that the necessary ruling regarding the means can be derived by recourse to other principles such as Qiyas, Istihsan (according to Hanafi jurists) and ‘ Urf . 2)Maliki and Hanbali jurists They have approved Sadd al- Dhara’i ’ as a proof of Shari’ah in its own right. They argued that sadd al- dharai ’ is an acknowledged principle of shari’ah and as long as the lawful acts lead to unlawful results, they should be prohibited. The Maliki jurists say that ‘repelling of injury is to be accorded greater weight than the securing of benefit.

5. Types of permissible acts which lead to an evil 1)Means which definitely lead to evil digging a deep pit next to the entrance door to a public place which is not lit at night. Anyone who enters the door is most likely to fall into it. Based on the near certainty of the expected result of injuring others, the means which leads to that result is equally forbidden. The jurists of all schools are unanimous on the prohibition of this type of means.

6. Types of permissible acts continue… 2) Permissible acts which most likely leading to an evil. Selling of grapes to wine maker, renting out a premise for the purpose of gambling or prostitution. Muslim jurists are in agreement that, this type of permissible act is to be blocked. 3) Permissible acts which are rarely leading to an evil. For example, cultivating grapes, travelling by plane. Muslim jurists agree that this type of permissible act is not to be blocked . Since the benefit is prevalent.

7. Types of permissible acts continue… 4) Means which frequently lead to evil but in most cases will not happen either on certainty or probability Examples: Deferred sales: This sale is used to procuring usury (according to Imam Malik and Ahmad bin Hanbal ). They said that the means which is likely to lead to usury is unlawful and must be obstructed. Imam Abu Hanifah and Imam Shafi’e ruled that unless it definitely leads to evil the basic legality of sale must prevail. • E.g., Inah sale It is a sale and buy back agreement. For instance, A sells a car for RM20,000 to B payable at a future date (deferred payment) and later A buys it back from B for RM15,000 payable at once (for cash). • Tahlil marriage: Marrying a woman with the intention of divorce her so as to enable her to remarry her previous husband.

8. Muslim jurists agree that if the unlawful intention is apparent , such act is to be blocked. If not, it is not to be blocked. But they differ with regard to the indication that manifests such intention. Shafi’i jurists look into formation of a contract or transaction. If the contracting parties expressly state in their contract of unlawful intention, such contract is prohibited. And if they do not expressly state, such contract is not prohibited.

9. Maliki and Hanbali not only look at the formation but also circumstantial evidence surrounding, and consequence of such transaction. Hanafi agree with the Maliki and Hanbali but they stipulate that there shall be a strong circumstantial evidence.

10. Position and proof of blocking the means as a source of law The Muslim jurists do not differ among themselves on the authority of sadd al- dhara’i as a source of law but their difference is with respect to the scope of the application of this source. Its application in Maliki and Hanbali is wider and followed by Hanafi. Meanwhile in Shafi’i school, it is strictly applied.

11. Its relationship with maslahah Sadd al- dhara’i is complementary to maslahah as the removal of hardship is a type of maslahah . Thus the position of sadd al- dhara’i as a source of law is the same position as masalih mursalah .

12. C onclusion The whole concept of Sadd al- Dhara’i ’ is founded in the idea of preventing an evil before it actually materialises . In line with the concept of ‘prevention is better than cure.’ It is therefore not always necessary that the result should actually obtain.