3. Eliminating Detriment

* “No wrong, no wrong-doing.”

This most important rule of the Sharia is based on a Hadith with similar wording. This guiding rule, read with its sub-rule, **”wrong is to be undone”, provides a guideline to regulate the entire economic and financial system in such a way that prohibits harm imposition and discourages retaliation. This basic rule is treated as a pillar of Islamic law. The rule forms the basis of the laws of option, inhibition, return of defective merchandise, pre-emption, requittal, Hudud, compensation and indemnity, etc. This also allows individuals to act unilaterally to protect themselves or others from harm. It is, therefore, necessary that an Islamic state should legislate and manage in such a way that would plug the sources of causing harm or damage. It is on this basis that the government has a right to blacklist those traders who indulge in illegal and anti-social activities such as smuggling and adulteration.

It can also take action against those influencial persons who provide support or give protection to unlawful practices or to miscreants.

It is on this basis that a landlord is not allowed to eject the tenant from the cropped land even on the expiry of the period of the contract of tenancy so that the cultivator is protected from the loss of his crop. The landlord is bound to extend the period of tenancy against payment of standard rent till the crop sown by the tenant is harvested.

In case the buyer of perishable goods absents himself without taking possession of the purchased goods the seller, in order to protect himself and the buyer from loss, has a right to unilaterally revoke the contract of sale and sell the goods to some other party lest the commodity should perish.

The application of the rule has the following prerequisites : )

(i) * “Let the ancient rest on its age.

Thus it is not permissible to close an age-old thoroughfare or to prevent the livestock from grazing in jungle or public pasture which has been in use since a long time. These rights have to be guaranteed unless their exercise is harmful to general interest. This is so because of the operation of another rule that

** “A wrong is a wrong even though it be ancient”.

Thus if an age-old canal is causing water logging and salinity it should not be allowed -to flow simply on account of previously held rights.

If a well has become dangerous to the neighbouring population it will be levelled up even if it is very old.. The government may ban cycle rickshaws in case it is found to
seriously impair the health of the rickshaw-pullers or in case it has become a nuisance to traffic. The government may also ban fishing on boats in high seas on account of high risk in case motor-operated boats are available. It can also order for shifting age-old noxious workshops and factories from congested areas. Thus ancientnesswould not be an excuse to continue a thing that has become hazardous.

(ii) *“Unlawful things are to be prevented irrespective of benefit”.

There may be situations in which an act might have certain benefits while it produces corruption and inequity. In such a case the Sharia would ban that act despite the benefits that it. might apparently yield.

Trading in unlawful items and earning with unlawful ways might provide employment to a large number of persons and bring substantial revenues to the government. Nonetheless the unlawful items in trading must be eliminated since the removal of comiption has priority over acquisition of benefits - economic, social or

Gambling or wager might be an effective source of collecting funds for philanthropic objectives; nevertheless, they have to be avoided since the acquisition of benefits is less important from the viewpoint of the Sharia than the avoidance of corruption.

There may be situations in which a trade, technique or a policy is not unlawful but involves both benefit and harm, such situations are governed by the following subsidiary rules:

(a) ‘injury is to be resisted to the extent possible.

This rule provides us with a guideline to adjust our policies in those situations which, although lawful, are fraught with risk and harm.

Automation would, in the short run, lead to unemployment. Industrialization may lead to pollution of atmosphere and overcrowding. Public expenditure on economic development may have an inflationary effect.

These risks or damages would not suggest that the efforts towards economic development should be discontinued. What the rule amounts to is that such effort should be continued with a serious effort to minimise the adverse effects as far as possible. The following further rules present the practical guidelines:

(b) **”A wrong is not avoided by another of the same kind”.

The law of sustenance binds a person to provide to kinsmen if they are struck by hunger and want. But enforcing this requirement on a pauper who possesses a single meal would merely transfer the harm from one person to another. This is repelling a harm with a similar harm and is not recommended.

In case a buyer gets a faulty article he is given the option to return the goods. But if the purchased article has developed similar fault while in possession of the purchaser he will lose his option to return the goods because, in order to protect himself from harm, he will also be harming the seller. This would amount to repelling a
harm by causing a similar harm.

The rule also lays down an important policy criterion for the government.

It is not lawful for any government to rob a person or a group in order to provide benefit to some other person or a group.

Thus it may not provide employment to some by denying it to others.

Likewise it may not irrigate some farms by drying up similar other farm.

In short, it is not allowed to use public property for the benefit of some at the cost of others’ benefit.

(c) * A greater injury may be avoided (enduring) a lesser injury.

The principle is that one may not ordinarily compel a well-to-do person in order to distribute his income among the have-nots.

But in situations where relatives are needy the government has a right to compel him under the law of sustenance to bear their expenses, as well, because the harm that is caused by the poverty of the poor relative is more serious than the harm caused by the
compulsory distribution of a portion of well-to-do’s wealth among his near relatives.

Similarly, the government may compel a resourceful debtor to redeem the debt on stipulated time.

The rule also provides some important choices in order to endure a minor harm to counteract a major harm. For example, in case a customer loses his coin in a slot, his coin may be allowed to go waste rather than to dismantle the machine which has much greater value than the coin. But in case a very expensive piece of jewellery is lost in a less expensive washing machine of a laundry its recovery, then, requires damage to the machine; the same will be effected to recover the piece of jewellery that is more expensive than the machine.

In all such cases where the choice is between two harmful alternatives the one fraught with less harm may be chosen.

(d) The rule in the case of conflict between a particular harm and a general harm is that *“To avoid public injury, a private injury may be suffered”.

The Sharia is inclined to allow free market operation and, under normal conditions, is disinclined to price-regulation. But in case traders manipulate the market and reap exorbitant profits in a manner that the interest of the consumers, i.e., the general public, is seriously jeopardised the government action is justified in regulating prices or profits to protect the interests of the consumers.

This is so because protecting public interests is more important than securing traders’ interests. By doing so the government will be preventing the general harm by tolerating a particular harm.

It is this rule of lesser evil that guides a choice among alternative uses of economic resources. The question of theory needs to be decided by competent experts who should be guided by objective rather than subjective factors in their judgement.

It is this rule which guides inquiry into population planning, nationalization, price control and rationing, ceiling on using land for fanning, interlocking of directors of business firms and a large number of similar economic issues and policies. In addition, there is another rule which contains the same spirit but is laid down in different words. It reads as * “The lesser of two evils is to be chosen”.

Thus fiscal and monetary restrictions on incomes and borrowing are undesirable, but inflationary pressure caused by monetary expansion is all the more undesirable.

Ordinarily, it is not justifiable for the government to compel someone to sell, but it is all the more unjustifiable for the seller to hoard foodgrain.

Price controls are generally undesirable but exploitation of the general public by making excessive profits on necessities like bread, milk, and medicines is much more undesirable.

In the Prophet’s (peace be upon him) time middlemen used to purchase articles from suppliers before they reach the towns-market. This had adversely influenced free market operation and proved to be detrimental to the interest of bonafide sellers and consumers. With a view to protecting the interest of both groups the holy Prophet (peace be upon him) is reported to have disallowed the middlemen to bargain with visiting village suppliers before they reached the market.

Thus the rule of choosing lesser evil gives the government wide powers to impose restrictions and controls on traders and members of other professions, and to regulate ownership and consumption.

In all the above cases the occurence of harm is real and calculable. There may be harm which has imaginary existence and has remote probability of occurrence. Such is not to be considered as a valid ground of policy choice as the rule is that there is * “no reliance on mere imagination”

Hence production of grape or barley may not be banned simply on the presumption that it may lead traders to manufacture wine or beer.

The sale of molasses may not be banned for fear of its misuse by some manufacturers.