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Unformatted text preview: ther than blocking, the means to the desired benefit. On a similar note, it is permissible for the Muslim community to pay the enemy so as to prevent the latter from inflicting harm on the Muslims, but only when the Muslim community is otherwise powerless to defend itself. Furthermore, the ulema have generally held that giving bribes is permissible if it is the only way to prevent oppression, and the victim is otherwise unable to defend himself. To this the Hanbali and Maliki jurists have added the proviso that giving bribes is only permissible as a means of defending one's proven rights but not if the right in question is disputed. [19. Abu Zahrah, Usul, p. 232.] Notwithstanding the essential validity of sadd al-dhara'i' as a principle of Shari'ah, over-reliance on it is not recommended. The ulema have cautioned that an excessive use of this principle may render the lawful (mubah) or even the praiseworthy (mandub) and the obligatory (wajib) unlawful, which should not be encouraged. An example of this would be when an upright person refuses to take custody of the property of the orphan, or of waqf property, for the pious motive of avoiding the possibility of incurring a sin. A refusal of this nature would seem to over-emphasise the significance of the means that might lead to evil. With regard to the guardianship of the property of orphans, the Qur'an offers some guidance in that it permits mixing their property with that of the guardian as a matter of trust, a conclusion which is drawn from the text where we read in a reference to the orphans: 'If you mix their affairs with years, they are your brethren, but God knows the wrong-doer from the upright' (al-Baqarah, 2:220). While discussing the ulema's caution against over-reliance on sadd al-dhara'i`, Abu Zahrah quotes the renowned Maliki jurist Ibn al-'Arabi, to the effect that the application of this principle should be Principles of Islamic Jurisprudence ~ Kamali 275 regulated so as to ensure propriety and moderation in its use. Abu Zahrah then concurs with Ibn al`Arabi to the effect that if an evil is to be prevented by blocking the means towards it, one must ascertain that the evil in question is mansus `alayh, that is, one which has been ruled upon as such in the Qur'an or the Sunnah. Similarly, when a benefit is to be facilitated by opening the means towards it, the propriety of the benefit must be sustainable by analogy to a halal mansus (that which has been declared lawful in the nass). But Abu Zahrah is careful to add that these conditions remain in the nature of an opinion and are not required in the accepted Maliki exposition of this doctrine` [20. Abu Zahrah, Usul, p. 233.] And finally, with regard to the guardianship of property and trust in the foregoing example, it is suggested that the harm which is likely to arise from refusal by an upright person to undertake it is likely to be greater than that which might arise from undertaking it. If the orphans were to be neglected for fear of opening the means to misuse of trust, or if no-one gave testimony for fear of indulging in lying, then surely this would itself become a means to greater evil and should therefore be avoided. We might...
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This note was uploaded on 04/13/2013 for the course ISLAM 101 taught by Professor Islam during the Spring '13 term at Harvey Mudd College.
- Spring '13