16. SADD AL-DHARA’I` (BLOCKING THE MEANS)
Dhari’ah (pl. dhara’i’) is a word synonymous with wasilah, which signifies the means to obtaining a certain end, while sadd literally means `blocking’. Sadd al-dhara’i thus implies blocking the means to an expected end which is likely to materialize if the means towards it is not obstructed. Blocking the means must necessarily be understood to imply blocking the means to evil, not to something good. Although the literal meaning of sadd al-dhara’i might suggest otherwise, in its juridical application, the concept of sadd al-dhara’i’ also extends to `opening the means to beneficence’. But as a doctrine of jurisprudence, it is the former meaning, that is, blocking the means to evil, which characterises sadd al- dhara’i`. The latter meaning of this expression is not particularly highlighted in the classical expositions of this doctrine, presumably because opening the means to beneficence is the true purpose and function of the Shari’ah as a whole and as such is not peculiar to sadd al-dhara’i’.
When the means and the end are both directed toward beneficence and maslahah and are not explicitly regulated by a clear injunction (nass), the matter is likely to fall within the ambit of qiyas, maslahah, or istihsan, etc. Similarly, when both the means and the end are directed towards evil, the issue is likely to be governed by the general rules of Shari’ah, and a recourse to sadd al-dhara’i’ would seem out of place. Based on this analysis, it would appear that as a principle of jurisprudence, sadd al-dhara’i’applies when there is a discrepancy between the means and the end on the good-neutral-evil scale of values. A typical case for the application of sadd al-dhara’i` would thus arise when a lawful means is expected to lead to an unlawful result, or when a lawful means which normally leads to a lawful result is used to procure an unlawful end.
Both the means and the end may be good or evil, physical or moral, and they may be visible or otherwise, and the two need not necessarily be present simultaneously. For example, khalwah or illicit privacy between members of the opposite sexes, is unlawful because it constitutes a means to zina whether or not it actually leads to it. All sexual overtures which are expected to lead to zina are similarly forbidden by virtue of the certainty or likelihood that the conduct in question would lead to zina. Dhari’ah may also consist of the omission of a certain conduct such as trade and commercial transactions during the Friday congregational prayer. The means which obstruct the said prayer, in other words, must be blocked, that is, by abandoning trade at the specified time.
The whole concept of sadd al-dhara’i’ is founded in the idea of preventing an evil before it actually materialises. It is therefore not always necessary that the result should actually be obtained. It is rather the objective expectation that a means is likely to lead to an evil result which renders the means in question unlawful even without the realisation of the expected result. This is the case in both the examples given above: khalwah is this unlawful even without actually leading to zina, and trading during the time of the Friday prayer is unlawful whether or not it actually hinders the latter. Furthermore, since sadd al- dhara’i basically contemplates preventing an evil before its occurrence, the question of intention to procure a particular result cannot be a reliable basis for assessing the means that leads to that result. Abu Zahrah has aptly observed that the nature and value of the means is determined by looking at the purpose that it pursues regardless as to whether the latter is intended or otherwise. When a particular act is deemed to lead to a certain result, whether good or evil, it is held to be the means toward that end. The question of the intention of the perpetrator is, as such, not relevant to the objective determination of the value of the means. It is rather the expected result which determines the value of the means. If the result is expected to be good and praiseworthy, so will be the means towards it, and if it is expected to be blameworthy the same will apply to the means regardless of the intention of the perpetrator, or the actual realisation of the result itself. This is, for example, borne out by the Qur’anic text which forbids the Muslims from insulting idol worshippers, notwithstanding the inherent enormity of idol- worshipping or the actual intention behind it. The text thus proceeds: ‘And insult not the associates lest they [in return] insult God out of spite and ignorance’ (al-An’am; 6:108). The means to an evil is thus obstructed by putting a ban on insulting idol-worshippers, a conduct which might have been otherwise permissible and even praiseworthy, as it would mean denunciation of falsehood and firmness of faith on the part of the believer. Thus a means which is intrinsically praiseworthy leads to an evil result, and acquires the value of the latter. Furthermore, the prohibition in this example is founded on the likelihood that the associators would insult God as a result. It is, in other words, the expected result which is taken into account. Whether the latter actually materialises or not is beside the point: insulting the idols and their worshippers is thus forbidden regardless of the actual result that such conduct may lead to. Similarly, the question of intending whether or not to bring about a particular result is irrelevant to the prohibition under discussion. Insulting idol worshippers is thus forbidden even when a Muslim does not intend to bring about the expected result, that is, an insult to God; his intention may be good or bad, in either case, insulting the idols and their worshippers is forbidden as it is, on an objective basis, most likely to invoke the expected result.
The doctrine of sadd al-dhara’i contemplates the basic objectives of the Lawgiver. Hence the general rule regarding the value of the means in relationship to the end is that the former acquires the value of the latter. Al-Shatibi has aptly observed that the Lawgiver has legalised certain forms of conduct and prohibited others in accordance with the benefit or harm that they lead to. When a particular act or form of conduct brings about a result which is contrary to the objectives of the Lawgiver, then the latter would be held to prevail over the former. If the means, in other words, violate the basic purpose of the Shari’ah, then they must be blocked. The laws of Shari’ah are for the most part distinguishable in regard to their objectives (maqasid), and the means which procure or obstruct those objectives. The means are generally viewed in the light of the ends they are expected to obtain, and it is logically the latter which prevail over the former in that the means follow their ends, not vice versa. Normally the means to wajib become wajib and the means to haram become haram.
Means may at times lead to both a good and an evil in which case, if the evil (mafsadah) is either equal to or greater than the benefit (maslahah), the former will prevail over the latter. This is according to the general principle that ‘preventing an evil takes priority over securing a benefit’. Sadd al-dhara’i` thus becomes a principle of jurisprudence and a method of deducing the juridical ruling (hukm shar`i) of a certain issue or type of conduct which may not leave been regulated in the existing law but whose ruling can be deduced through the application of this principle.
In addition to the Qur’anic ayah (al-An’am, 6:108) on the prohibition of insulting idols as referred to above, the ulema have quoted in authority for sadd al-dhara’i` the Qur’anic passage in sura al-Baqarah (2:104), as follows: ‘O believers! Address not the Prophet by the word ra’ina, but address him respectfully and listen to him.’ The reason for this prohibition was that the word ‘ra`ina‘, being a homonym, had two meanings, one of which was ‘please look at us or attend to us’, while with a slight twist the same word would mean ‘our shepherd’. The Jews used to insult the Prophet with it, and in order to block the means to such abuse, the Muslims were forbidden from using that form of address to the Prophet despite their good intentions and the fact that the word under discussion was not inherently abusive.
Authority is also found for the principle of sadd al-dhara’i’ in the Sunnah, especially the ruling in which the Prophet forbade a creditor from taking a gift from his debtor lest it became a means to usury and the gift a substitute to riba. The Prophet also forbade the killing of hypocrites (al-munafiqun) and people who were known to have betrayed the Muslim community during battles. It was feared that killing such people would become a means to evil, namely, of giving rise to a rumour that ‘Muhammad kills his own Companions. which would, in turn, provide the enemy with an excuse to undermine the unity of the Muslim community. Consequently the Prophet put a ban on killing the munafiqun. On a similar note, the Prophet suspended enforcement of the hadd penalty for theft during battles so as to avoid defection to enemy forces. It was for this reason, namely to block the means to an evil, that the army commanders were ordered not to enforce tire prescribed penalties during the military engagements.
The leading Companions are also known to have entitled to inheritance the divorced woman whom her husband had irrevocably divorced during his death illness in order to exclude her from inheritance. This was forbidden by the Companions so that a divorce of this kind would not become a means to abuse. It is also reported that during the time of the caliph Umar b. al-Khattab, one of his officials, Hudhayfah, married a Jewish woman in al-Mada’in. The caliph wrote to him saying that he should divorce her. Hudhayfah then asked the caliph if the marriage was unlawful. To this the Caliph replied that it was not, but that his example might be followed by others who might be lured by the beauty of the women of ahl al-dhimmah. The caliph thus forbade something which the Qur’an had declared lawful so as to block the means to an evil as he perceived it at the time. It might be interesting to add here that Ibn Qayyim al-Jawziyyah records at least seventy-seven instances and rulings of the learned Companions and the subsequent generations of ulema in which they resorted to sadd al-dhara’i `so as to block the means that led to evil.
The ulema are, however, in disagreement over the validity of sadd al-dhara’i`. The Hanafi and Shafi’i jurists do not recognise it as a principle of jurisprudence in its own right, on the grounds that the necessary ruling regarding the means can be derived by recourse to other principles such as qiyas, and the Hanafi doctrines of istihsan and ‘urf. But the Maliki and Hanbali jurists have validated sadd al- dhara’i` as a proof of Shari’ah in its own right. Despite the different approaches that the ulema have taken to this doctrine, the Maliki jurist al-Shatibi has reached the conclusion that the ulema of various schools are essentially in agreement over the conceptual validity of sadd al-dhara’i` but have differed in its detailed application. Their differences relate mainly to the grounds which may be held to constitute the means to something else, and also to the extent to which the concept of sadd al-dhara’i` can be validly applied. Abu Zahrah has reached essentially the same conclusion by observing that the Shafi’i and Hanafi jurists are for the most part in agreement with their Maliki and Hanbali counterparts, and that they differ only in regard to some issues. The following classification of sadd al-dhara’i’ may cast light on the consensus, as well as some of the areas in which the ulema are in disagreement, over the application of this doctrine. It is perhaps well to remember at this point that notwithstanding the application of sadd al-dhara’i’ in respect of opening the means to beneficence (maslahah), it is usually the prevention of evil (mafsadah) that acquires greater prominence in the discussion of this principle.
From the viewpoint of the degree of probability or otherwise that a means is expected to lead to an evil end, the ulema of usul have divided the dhara’i` into four types.
1. Means which definitely lead to evil, such as digging a deep pit next to the entrance door to a public place which is not lit at night, so that anyone who enters the door is very likely to fall into it. Based on the near-certainty of the expected result of injuring others, the means which leads to that result are equally forbidden. The ulema of all schools are, in principle, unanimous on the prohibition of this type of dhari’ah and a consensus (ijma) is said to have been reached on this point. Having said this, however, it should be added that the jurists have envisaged two possible eventualities. Firstly, the dhari`ah may consist of an unlawful act of transgression in the first place, as was the case in the foregoing example, in which case the perpetrator is held to be responsible for any loss or damage that might be caused, as by digging a pit in a place where he has no right or authority to do so. Secondly, the dhari’ah may consist of an act which is basically lawful, in which case the ulema have disagreed over the question of responsibility. If, for example, someone digs a water well in his own house but so close to the wall of his neighbour that the wall collapses as a result, the act here is held to be basically lawful as it consists of the exercise of the right of ownership, which is said to be irreconcilable with the idea of liability for damages. According to a variant view, however, the perpetrator is liable for damages. This ruling draws support from the principle, already referred to, that preventing an evil takes priority over securing a benefit.
2.The second type of means is that which is most likely (i.e. on the basis of al-zann al ghalib) to lead to evil and is rarely, if ever, expected to lead to a benefit. An example of this would be selling weapons during warfare or selling grapes to a winemaker. Although al-Shatibi has noted that these transactions are invalid according to the consensus (ijma`) of the ulema, both Abu Zahrah and Badran have noted that it is only the Maliki and Hanbali ulema who have considered these transactions to be forbidden (haram), as they are most likely to lead to evil notwithstanding the absence of certain knowledge that this will always be the case. In their opinion, a dominant probability or zann is generally accepted as a valid basis for the ahkam of Shari’ah. Consequently when there is a strong likelihood that means would lead to an evil, the means may be declared forbidden on the basis of this probability alone.
3. The third of the four types of means under discussion is that which frequently leads to evil, but in which there is no certainty, nor even a dominant probability, that this will always be the case. An example of this would be a sale which is used as a means to procuring usury (riba). These types of sales, generally known as buyu’ al-ajal (deferred sales), in which either the delivery of the object of sale, or the payment of its price, is deferred to a later date, would all tend to fall under this category of means. If, for example, A sells a garment for ten rials to B with the price being payable in six months’ time, and A then buys the same garment from B for eight rials with the price being payable immediately, this transaction in effect amounts to a loan of eight rials to B on which he pays an interest of two rials after six months. There is a dominant probability that this sale would lead to riba although there is an element of uncertainty that it may not, which is why the ulema have disagreed as to the validity or otherwise of this type of transaction. Imam Malik and Ahmad b. Hanbal has held that the means which are likely to lead to usury are unlawful (haram) and must be obstructed. They have acknowledged the possibility that a deferred sale may not actually lead to riba; they also take cognizance of the basic norm in regard to sale, which is legality, and yet they have ruled, on grounds of caution (ihtiyat), that sales which are likely to lead to riba are unlawful. The mere possibility that riba may not actually materialise is of no account, and although sale is generally lawful, this basic legality is of no consequence if it is expected to procure an evil. Furthermore, to prevent the latter must be given priority over any possible benefit that the sale in question might entail.
The Imams Abu Hanifah and al-Shafi’i have, on the other hand, ruled that unless it definitely leads to evil, the basic legality of sale must be held to prevail. Sale is basically lawful in all of its varieties, deferred or otherwise, and in the absence of either positive knowledge (‘ilm) or of a dominant zann that a sale would lead to riba, a mere frequency of occurrence should not be allowed to override the original legality of sale. The preferred view, however, is that of the Maliki and Hanbali schools, for there is evidence in the Sunnah to the effect that original permissibility may be overruled in the face of a likelihood (or customary practice), even without definite evidence, that it might open the way to evil.
The ulema have similarly differed over the validity or otherwise of a marriage that is concluded with the intention of merely satisfying one’s sexual desire without a life-long commitment. Imam Malik considers this to be invalid (batil), as acts, according to this view, are to be judged by the intention behind them, and since the norm in marriage is permanence, the absence of an intention to that effect vitiates the nikah. The main thrust of this view is to prevent the likely abuse to which the marriage in question is likely to lead. Imam Shafi`i has on the other hand held that the nikah is valid so long as there is nothing in the contract to vitiate it. The Shari’ah, according to this view, cannot operate on the hidden intentions of people but only on tangible facts that are susceptible to proof. Whether the nikah in this case is a means to abuse is a matter for the conscience of the individual, and not the positive application of the law. The difference here is one of perspective. Whereas the Shafi’i and Hanafi view is based on the apparent validity of a contact and the necessary caution that must be taken in order to prevent an evil. The ulema are, on the other hand, all in agreement on the prohibition of illicit privacy (khalwah) which is founded in the likelihood, though not amounting to positive proof, that it might lead to adultery.
Another, similar instance in which the jurists have invoked the principle of sadd al-dhara’i is the ruling, disputed by some, that close relatives may neither act as witnesses nor as judge in each other’s disputes. Likewise, a judge may not adjudicate a dispute on the basis of his personal knowledge of facts without the formal presentation of evidence, lest it lead to prejudice in favour or against one of the parties. The principle involved here is that such activities might constitute the means to an evil end, namely miscarriage of justice, and are therefore to be avoided. The Hanafis on the other hand maintain, particularly in reference to adjudication on the basis of personal knowledge, that it is lawful. Some ulema have also held the view that testimony by a relative may in fact facilitate justice and may not lead to evil, especially if relations testify against each other, which is why the ulema of various schools have allowed the testimony of father or son, or of spouses, against one another, but not in favour. The jurists have thus disagreed over the application of sadd al-dhara’i to particular issues and the extent to which it may be validly applied to different situations.
4. The last of the four varieties of means are those which are rarely expected to lead to evil and are most likely to lead to a benefit. An example of this would be to dig a water well in a place which is not likely to cause injury or harm to anyone, or speaking a word of truth to a tyrannical ruler or growing certain varieties of fruits, such as grapes, on one’s own property. In all of these, as in many other matters, there is a possibility that a mafsadah might be caused as a result. In the case of growing grapes, for example, it is possible that the fruit may be fermented into wine, but a mere possibility of this kind is overlooked in view of the stronger likelihood of the benefit that it would otherwise achieve. The ulema are generally in agreement on the permissibility of this type of means. The basic norm in regard to acts and transactions that would fall under this category of means is permissibility, and no one may be prevented from attempting them on account of the mere possibility that they may lead to a mafsadah. On a similar note, no-one may be prevented from giving testimony in judicial disputes, nor may anyone be obstructed from telling the truth to a tyrannical ruler because of a mere possibility that this might give rise to a mafsadah.
The foregoing discussion of sadd al-dhara’i` has primarily been concerned with means which led to an unlawful end. There was, in other words, no attempt to change the haram into halal: whenever there was a likelihood that a lawful means led to an unlawful end, the means itself became unlawful. But the application of sadd al-dhara’i’ also covers the eventuality where a haram may be turned into halal or mubah if this is likely to present a greater evil. A lesser evil is, in other words, tolerated in order to prevent a greater one. To give an example: it is permissible to seek the release of Muslim prisoners of war in exchange for the payment of a monetary ransom. To give money to the warring enemy is basically unlawful as it adds strength to the enemy, which is generally harmful. But it is permitted here as it achieves the freedom of Muslim prisoners, which would in turn add to the strength of the Muslim forces. This ruling is based in the principle of sadd al-dhara’i’, and consists of opening, rather 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.
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 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`
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 end our discussion of sadd al-dhara’i` by distinguishing the means from the preliminary (muqaddimah), although the two can at times coincide and overlap. Briefly, a ‘preliminary’ consists of something which is necessary for obtaining the result that it contemplates, in the sense that the latter cannot materialise without the former. For instance, ablution (wudu’) is a preliminary to salah and the latter cannot be performed without the former. But a means to something does not stand in the same relationship to its end. Although the means is normally expected to lead to the end it contemplates, the latter may also be obtained through some other means. The end, in other words, is not exclusively dependent on the means. To give an example: traveling in order to commit a theft is a preliminary to the theft that it contemplates but not a means to it. Traveling which might consist of riding a train in a certain direction is basically neutral and cannot, on an objective basis, be said to constitute a means to theft. But tahlil, that is, an intervening marriage concluded in order to legalise remarriage between a divorced couple, is a means to the proposed marriage but not a preliminary to it, as the latter is not exclusively dependent on tahlil and can, for example, follow a normal intervening marriage. Similarly, seductive overtures between members of the opposite sexes are a means, but not a preliminary, to adultery, as the latter can materialise even without such overtures. Sexual overtures can only constitute a preliminary to zina when they actually lead to it.
The other difference to note between the means and the preliminary for our purposes, is, as already indicated, that the former is usually evaluated and declared unlawful on an objective basis even without the realisation of its expected end. The preliminary to an act, on the other hand, is of little value without the actual occurrence of the act of which it becomes a part. The relationship between preliminary and its result is subjective in the sense that it can only be evaluated in the light of the completed or the intended result. Walking in the direction of a mosque to perform the Friday prayers, for example, can only acquire the value of the wajib if it actually leads to the performance of the prayers, not otherwise.
by M. H. Kamali.
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