The Tenth Source of Imam Maliks Fiqh: The Principle of Means (adh-Dhara’i’)

This is another of the principles on which Imam Malik often relied when deriving judgements and in that respect Imam Ahmad ibn Hanbal closely resembled him. We will begin our discussion with the meaning and categories of this term and then see how it becomes a legal principle which can be used as evidence.

The meaning of dhari’a is “means”. Sadd adh-dhara’i’ (blocking the means) implies preventing them, which entails making the means to what is forbidden also forbidden; and fath adh-dhara’i’ (facilitating the means) entails making the means to what is obligatory also obligatory. Thus because adultery is unlawful, looking at the private parts of a unrelated woman is also unlawful because it is likely to lead to adultery. Because the Jumu’a prayer is an obligation, going to it is also an obligation, and leaving off trading to go to it is also obligatory. Hajj is an obligation, and going to the Sacred House and the other practices of Hajj are obligatory for its sake.

Sources of judgements fall into two categories: objectives, which are benefits, harmful matters; and means, which are the paths leading to them. Their judgement is like the judgement of that which leads to prohibition or allowance, although they have a lesser rank than those which are judged to be objectives. Al-Qarafi says: “The means to the best of goals is the best of means, and to the worst of goals is the worst of goals. That which is in the middle is in the middle.” (Tanqih, p. 200) Ibn al-Qayyim explained that principle:

Since objectives can only be reached by the causes and paths which lead to them, then those paths and causes which follow them must be taken into consideration. The means to unlawful things and acts of rebellion are disliked and prohibited inasmuch as they lead to their consequences, and the means to acts of obedience and acts of nearness are recommended and permitted inasmuch as they lead to their objectives. The means to the objective is subordinate to the objective, and both of them are intended, but their being intended is the objective of the ends. They are intended as the means to what is intended. When the Lord forbade something which has means which lead to it, He also made the means unlawful and forbade them in order to achieve the prohibition and confirm it, and to prevent people approaching it. If the means leading to it were allowed, that would impair the prohibition and entice people to it. His wisdom and knowledge completely rejects that. Indeed, it is the policy of the kings of the world to reject that. When one of them forbids his army or people or household something and then permits them the means, causes, and paths which lead to it, that is considered a contradiction. It achieves the opposite of his aim in his people and army. It is like that with doctors when they want to terminate an illness: they forbid the one who has it the paths and means which lead to it. Otherwise, what they desire to mend will be spoiled for them. So what did do you think about the Shari’a which is in the highest ranks of wisdom, benefit and perfection? Whoever reflects on its sources and roots will know that Allah Almighty and His Messenger forbade the means which leads to unlawful things as He forbade and prohibited the things themselves.” (I’lam, pt. 3, p. 119f.)

The basis for the assessment of blocking means is to examine the consequences of actions and what they lead to as a whole. If they lead towards benefits, which are the objectives of human transactions with one another, they are desirable commensurate with how appropriate they are to the quest for these goals, even if they are not the same as it in the goal. If their consequences are directed towards evils, they are forbidden as corresponds to the prohibition of these evils, even if the amount of prohibition is less in the means.

Investigation into these consequences is not done by examining the goal and intention of the doer. One looks at the result and fruit of the action. It is according to the intention that a person is rewarded or punished in the Next World, but it is according to the result and fruit that the action is good or repellent, or desirable or forbidden in this world, because this world is based on the welfare of people and on equity and justice. This requires investigating the result and fruit after the reckoned intention and good aim. If someone curses idols sincerely out of devotion to Allah Almighty, his intention will be reckoned with Allah in his claim, but He forbade cursing since that results in the resentment of the idolaters and they may curse Allah Almighty. The Almighty says: “Do not curse those they call upon besides Allah, in case that makes them curse Allah in animosity, without knowledge.” (6:108) That which is noted in this noble prohibition is the result which occurs, not the religious intention.

We see from this that the prohibition in what leads to sin or corruption is not directed to the intention alone. It is directed to the result as well and so it is forbidden because of its result. Allah knows the sincere intention.

A person may intend evil by a permitted action and thus sin in what is between him and Allah, but no one has a way against him nor can judge that his actions are legally baseless. This is like someone who makes a reduction in his sale in order to injure a trader with whom he is in competition. Without a doubt that is a permitted action although it is a means to sin and so it is harming in itself and he actually intended that. In spite of that, the action is not judged in any respect to be invalid and it does not fall under the clear prohibition of the judicial decision. From the aspect of intention, this action is a means to evil, and from its apparent aspect, it is a means to both general and specific benefit. There is no doubt that the buyer benefits from his purchase, the marketability of his trade and good reception for it; and there is general benefit in that reduction and it may lead to a lowering of prices.

So the principle of blocking means does not only involve intentions and personal aims as you see, but also what it intends of general benefit or averting general harm. It examines the result with the intention or the result alone.

Ash-Shatibi posed a case in which the doer intends to benefit himself and harm others, and there is no general benefit or general harm in the case. He said about the judgement of this case:

“There is no obscurity about the prohibition of the aim of harming inasmuch as it is harm since the evidence is established that ‘there is no harm and no causing injury’ in Islam, but it remains to examine this action which includes both intending a benefit and intending harm to someone else: is it forbidden so that it becomes not permitted or does it retain its basic permissibility while he sins in his intention? This is part of that in which disagreement is conceivable in general. Moreover elaboration is possible in ijtihad. It is that when that action can be changed in a manner which will procure that benefit or avert that harm, he will obtain what he wants in the first place. If that is the case, there is no ambiguity in prohibiting it because by that he only intends harm. If there is no way to avoid that aspect by which someone else is harmed, then avoidance or repelling is favoured over the aim of causing harm.” (al-Muwaqafat, pt. 2, p. 242)

It is clear from this that the basis of blocking takes no account of intention in permission or prohibition. Investigation is directed to the results. If the result of the action will be general benefit, it is obligatory. If it leads to evil, it is forbidden because evil is forbidden and so what leads to it is forbidden. What leads to the desirable benefit is desirable. Investigation of this principle shows us that it is affirmed by the confirmation of the previous principle: the procurement of benefits and repelling of harms as much as possible. Since the aim of the Shari’a is to establish welfare by imposing the judgement of the deen in it and repelling corruption and prohibiting harm wherever it is, all of the means and reasons which lead to that have the same judgement as that basic aim: seeking benefit and repelling harm and injury. What is meant by benefit is general utility, and by harm is the harm which befalls a large number of people. That is why if holding to permissible personal benefits for a person will lead to general harm or prevent a general benefit, then holding to it is forbidden in order to block the means and to prefer general over private utility. Thus meeting goods before they arrive in markets and taking them to control the markets is forbidden because, even if it permitted in its basis, it is a type of purchase which, if permitted, will cause constriction to people and freedom of exchange will not be established. Thus there is general harm in allowing permission and so it is forbidden to block the means and the prohibition is general, even if some of the people who meet them have a good and rewardable intention.

Ibn al-Qayyim divides means into two categories in respect to their results:

Action or words leading to evil, which has two grades:

Grade One: Doing it leads to it: like drinking the intoxicant which leads to intoxication, slander which leads to lying, and fornication which leads to confusion in paternity and corruption, and the like. These are words and deeds which lead to evils, and they clearly are nothing else.

Grade Two: Doing it leads something permitted or recommended, but it can be taken as a means to the unlawful, either intentionally or unintentionally. The first is like someone who contracts a marriage by which he intends to make a woman lawful to a previous husband or concludes a sale intending usury. The second is like someone who curses the deities of the idolaters in their presence. Then this category of means has two sub-divisions, one of which is that the benefit of the action is more likely than its harm, and so there are four categories.

The four derived divisions are:

  1. Something forbidden which must lead to harm, like drinking wine, slander and fornication.
  2. Something permitted which it is intended as a means to an evil.
  3. Something permitted which may contain evil but is more likely to bring benefit.
  4. That which is more likely to bring evil.

These divisions are sound in respect to logical hypothesis, but the first division is not considered part of means. It is counted among the aims because wine, fornication and slander, usury, wrongfully consuming people’s property, misappropriation, and theft are harms in themselves and not means to worse evils.

As for the discussion on the means which are instruments which lead to evil, their avoidance is called ‘blocking means’, and those which lead to the procurement of benefits and are desirable are, according to the words of al-Qarafi, ‘the opening of means.’

The first division is not termed ‘blocking’ means because it itself is evil. So the three other categories are those which are included in this division. Since the psychological goal is not considered in respect of worldly judgements even though it has consideration in respect of the reward and penalty, we leave that intention as we are dealing with the actualisation of worldly judgements. We consider ash-Shatibi’s division of actions as it is composed of evils or of evil connected to other than the doer. He divided that into four categories:

  1. What leads definitely to harm, like digging a well next to the door of a house in the dark so that one who enters the house must fall into it, and the like.
  2. What rarely leads to harm, like digging a well in a place which would not normally lead anyone to fall into it and selling foods which normally do not harm anyone.
  3. What often leads to harm such that it is probable that it will lead to it, like selling weapons at a time of civil war and selling grapes for wine, and other things which of which it is highly probable, but not definite that they will lead to harm.
  4. What often leads to harm, but does not reach the level where the intellect thinks it probable that it will always lead to it, like questions about usurious sales which may lead to usury itself.

These are four categories, and we will speak on every category in order to clarify it.

As for the first category, which is that which definitely leads to harm, it is the action which in itself is forbidden as is what leads to harm, and there are two prohibitions in it: the prohibition itself and the prohibition of what leads to it, and so it is a multiple prohibition and the forbidding is strengthened.

If the action is basically permitted, then we can approach the matter in one of two ways: one is to look at the permission itself and the second is to look at the evils which result from it. There is no doubt that the side of evils predominates, especially if these evils will definitely occur in the normal course of things, and he prefers to do that, and evils occur through it – which is inevitable – then he is liable to the one who received the injury. That is because he intended that action along with whatever harm would definitely result from it and the transgressor is liable for his transgression.

The second category is that from which harm rarely results. It remains basically permitted as long as the action is permitted. That is because actions are connected to the probable, not the rare. When the action is basically permitted, the permission is only because the aspect of benefit is dominant. Harm only ensues in rare cases. That is because a pure benefit only exists rarely. The Lawgiver considered the predominance of benefit in the decisions about matters and did not consider the rare harm.

The third category is what will probably result in harm when it is done, but it is not definite and not considered rare. In this case predominant opinion is connected to definitive knowledge because blocking means obliges curtailment of the harm as much as possible. There is no doubt that curtailment demands the use of likelihood and because opinion in actual judgments occurs as knowledge. So here it follows its course. It is also because allowing it is a type of mutual help to sin and aggression and that is not permitted.

The fourth category is that which often results in harm, but does not reach the level of probability so that the aspect of harm is preferred over the basis of permission in the action, like selling on credit which often leads to usury, even if it is not predominant.

Here strong aspects of the view conflict. One is to look at the basis of the legality, and the basis of the legality is that the benefit is predominant for the doer. That is why the Lawgiver permitted it. The second is the harm which is frequent, even if it is not predominant. Abu Hanifa and ash-Shafi’i considered the basis of the legality. That is why they permit the behaviour and say there is no justification for prohibiting it since the prohibition is not based on knowledge or supposition. So the basis of legality remains.

This is the view of Abu Hanifa and ash-Shafi’i who preferred the aspect of legality because it is the basic position. Malik looked at the other side, which is also strong: the frequency of harm which results from the action, even if it is not predominant.

Malik preferred that aspect over others for three reasons:

1. He looks at the actuality, not the intentions. It can happen that the evils which result from the action are numerous, even if that is disputed. So harm soon occurs and care taken to avoid it in the action. Several evils result in precautions being taken against them when they are probable or known absolutely in the course of customs. There is knowledge of the numerous resulting harms. It is established in fiqh that repelling harm is favoured over procuring benefits.

2. In this case two principles conflict because the basis of the action is permissibility as it is the basis of the duty. There is a second principle, which is preserving the human being from harming and causing pain to another. The second principle is favoured because of the great number of resulting harms, and the prohibition is for prevention. Thus the action leaves its root, which is permission, for the second root, which is prohibition in order to block the means to evil.

3. Sound traditions have come forbidding matters which are basically permitted because in many cases they lead to evils, even if they are not probable or definite. The Messenger of Allah, may Allah bless him and grant him peace, forbade being alone with an unrelated woman and for a woman to travel without a relative. He forbade building mosques over graves so that the dead would not worshipped; proposing to a woman in ‘idda so that she does not lie about her ‘idda; the sale and advance; the gift of the debtor; and fasting on the ‘Id al-Fitr. In all the prohibitions of these matters is out of fear of the evils which might result from them, even if the consequence is not probable or definite.

Ash-Shatibi said in this topic:

“The Shari’a is based on circumspection and adopting discretion and being on guard against what might lead to harm.” (al-Muwafaqat, pt. 2, p. 253)

One must note what Ibn al-‘Arabi stated in his book, The Judgements of the Qur’an, in the discussion of the ayat on orphans. He explained that it is permitted for an orphan’s guardian to purchase the property of the orphan. It is derived from what he said that blocking means must be adopted since the means leads to what is forbidden by text, not to the purely forbidden. He said:

“If it is said that Malik must have obliged leaving the root on account of suspicion and means when in the permissibility of buying from an orphan girl, the answer is that he did not. He deals with is a means in forbidden actions which will lead to things which are textually forbidden. In this case Allah has allowed a form of mixing property and those who mix property are assigned their trust when He says, “Allah knows the corrupter from the one who puts right.” This is the case with every perilous matter in which Allah Almighty has assigned the responsible person a trust which is not said to be used as a means to something forbidden and thus forbidden, as Allah entrusted women with responsibility for their private parts in spite of the enormity of judgements which might result from their assertions in that, connection to the lawful and unlawful, and lineages, even if it is possible that they lie.” (Ahkam al-Qur’an, pt. 3, p. 65)

We see from this that he confirmed that means should be blocked when they lead to something forbidden on which there is text, but anyone who studies the Maliki books on usul and secondary rulings will see that that which leads usually leads to harm is forbidden without limitation about whether there is a specific text on it, or it is included in the general prohibition of harm, injury and from all corruption.

Facilitating means

We have mostly discussed the blocking of means, i.e. repelling the means of harm, and noted that means are examined for their results. If it is harm, then it is mandatory to forbid it because harm is forbidden and so what leads to it is forbidden. If it is a benefit, it is desirable to take it because benefit is sought, and that is called ‘facilitating means,’ as the first is called ‘blocking means’. Facilitating means is used by Malik as well as blocking them. That is why al-Qarafi said in al-Furuq, “Know that as it is mandatory to block the means, it is also mandatory to facilitate them, or disliked, recommended and allowed. The means is the means. So as the means to the unlawful is forbidden, the means to the mandatory is mandatory, like going to Jumu’a and Hajj.” (pt. 2, p. 32)

In general what leads to a benefit is desirable like seeking this benefit. If it is mandatory, then it is mandatory if it specifies the way to it. If the benefit is only permitted in it, the means in it is permitted.

Part of this is the necessity of crafts considered to be means to the general benefits on which civilisation is based and with which people cannot dispense. It is obligatory that they be undertaken in general, but it is not a specific obligation because all people are not asked to be artisans. They only asked to bring into existence the crafts necessary for the establishment of civilisation. The achievement of that obligation is enough.

Since the benefit is the desired purpose of laws, and the Islamic Shari’a makes it one of its ends, – indeed the most manifest of its ends – when something forbidden leads to a confirmed benefit, and the benefit is greater than the harm of the forbidden –or, more precisely, the harm averted by the realisation of this benefit is greater than what develops from committing what is prohibited – then that forbidden thing is moved to the rank of the legitimate in order to achieve that benefit or to repel the greater harm. The following are examples of that:

1. Paying money to rebels to ransom Muslim captives. The basic position is that it is unlawful to give money to a rebel because it strengthens him, and there is harm in that for the Muslims, but it is permitted because it achieves the repelling of a greater harm: it prevents the enslavement of Muslims and releases them and strengthens the Muslims through them.

2. One person paying money to another as a bribe and the like in order to protect himself from an act of disobedience which he intends to commit whose its harm is greater than the harm of paying him money.

3. Paying money to a hostile state to avert its harm when the Community of Muslims do not have sufficient force to defend against the attack and protect the territory.

We see in all of those cases that the harm in something prohibited becomes desirable when it repels a greater harm or procures a greater benefit. In this case, the aspect of harm is compared with what it brings of benefit or averts of harm. What is considered is the aspect of the utility or the repelling of the greater harm.

The principle of means was adopted by Malik and some fuqaha’ have claimed that it was not one of the usul of any of the fuqaha’ except him, but the Malikis mentioned that the fuqaha’ share with them in many of their methods, even if they do not give the same name. Al-Qarafi said in Tanqih al-Fusul:

“As for the means, there is agreement that there are three types: one of them is considered consensus, like digging wells in the roads of the Muslims, putting poison in their food, and cursing idols in the presence of someone when it is not known whether he will curse Allah Almighty. The second is nullified by consensus like growing grapes which is not prohibited out of fear of wine. The third is one which varies, like credit sales. We consider the means in it while other disagree with us. The result is that we block means more than others, not that we alone have it.” (p. 200)

In al-Furuq he clarified some of the details of the third type, on which there is disagreement, and he said on it:

“There is disagreement among the scholars regarding it and whether is it blocked or not, like credit sales. This is like when someone sells some goods for ten dirhams with a month’s credit and then he buys them for five before the month is up. Malik says that five is taken from his hand now and he takes ten at the end of the month. This is a means to advance five for ten on credit in the form of a sale. Ash-Shafi’i says that one looks at the form of the sale and applies the matter to its outward form and so that is permitted. These sales are said to lead to a thousand questions which are particular to Malik, and ash-Shafi’i opposed him about them…

“This is also like the disagreement about the liability of artisans because they alter goods by their work so that their owners may not recognise them. So they are liable for damages in order to block the means. It is not because it is employment where the basis of hire is on trust. That is also the case in making food porters liable so that they do not filch some of it. It is frequent in these questions. We say that the means are blocked but ash-Shafi’i did not say that. Blocking of means is not particular to Malik. He does it more than others, but the basis of its blocking is agreed on.” (p. 33)

We are inclined to believe that all scholars adopt the principle of means, even if they do not call it that, but most of them consider the means to be the end when it is definitely a means to this end and to any other definitely or probably. When the means is only specified by means of knowledge or by means of probability, Malik utilised the principle of means in it. When the end frequently results from the means, like credit sales which in many cases are desired to obtain usury, they are unlawful because of this and the means to usury should be blocked. Others disagreed with him about that because the the transaction is basically permitted, and that is only nullified by definitive or probable evidence. There is no evidence of that sort, but only conjecture, and contracts are not invalidated by pure conjecture. They are only invalidated for evident known or probable matters.

The principle of means is established by the Qur’an and the Sunna. In the Qur’an, it is the words of the Almighty, “Do not curse those they call upon besides Allah, in case that makes them curse Allah in animosity, without knowledge.” (6:108) It is related that the idolaters said, “You refrain from cursing our gods or we will curse your God.” There are also the words of the Almighty, “O you who believe, do not say, ‘Ra’ina,’ but say, ‘Undhurna,’ and listen well” (2:104) because the aim of the Muslims is good, but the Jews used it as a means of abusing the Prophet.

As for the Sunna, the statements of the Prophet, may Allah bless him and grant him peace, and the fatwas of his Companions are numerous. Part of that is his refraining from killing the hypocrites since that would be a means for the unbelievers to say that Muhammad kills his Companions.

One example is that the Prophet, may Allah bless him and grant him peace, forbade a lender to accept a gift from a debtor unless he reckons to be part of the repayment of the debt. That is so that that will not be means to delay the debt for the sake of the gift, which would be usury. Another is that the Prophet, may Allah bless him and grant him peace, forbade cutting off hands in the expedition so that it would not be means for the one under a hadd to flee to the rebels. Part of it is that the first forerunners of the Muhajirun and Ansar allowed a woman who had been irrevocably divorced in her husband’s final illness to inherit since there was the suspicion that he intended to deprive her of inheritance, even if the aim of deprival was not established because divorce is a means.

Another is is that the Prophet, may Allah bless him and grant him peace, forbade hoarding. He said, “No one hoards except someone who does wrong.” Hoarding is a means to constrict people in what they need. There is no prohibition of hoarding what does not harm people, like jewelry and items which are not part of necessities or needs.

Yet another example is that the Prophet forbade the one who gave charity to buy back his charity even if he finds it being sold in the market, to bar the means of taking back what he gave for Allah, even for recompense, and if the giver is forbidden to take his charity by paying for it, there is a stronger prohibition against taking it without payment. To allow it to be taken for payment is a means to deceive the poor person by giving him the charity of his property and then buying it from him for less than its price. The poor person thinks that he has obtained some of his need and allows the sale. It is like that with a lot of traditions related from the Messenger of Allah, may Allah bless him and grant him peace and his Companions. Ibn al-Qayyim in I’lam al-Muwaqq’in gives about ninety-nine traditions as evidence to support the prohibition in blocking means.

Means are borne in mind in half of the laws of Islam.

The principle of blocking or facilitating the means, according to al-QarafiÕs definition, is considered from the aspect of consolidation of the principle of public interest which Malik adheres to. He considers general benefit to be the outcome which the Lawgiver desires, esteems, calls for and encourages, and so it is desirable to do anything that brings it about. Its opposite, which is corruption, is forbidden. So all that is known to lead to benefit, definitely or probably or mostly, even if it is not predominant, is desirable, and all that is known to lead, whether certainly or only probably, to corruption must be avoided.

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