. JI ದ : ; (cont.)

Some Hanbali scholars say that he has the same ruling as the one who made an oath, as discussed in the previous paragraph. Other Hanbalis say that if a man does not have intercourse with his wife for a period of four months and then she requests a separation, that separation is to be given to her because the act of sexual intercourse is obligatory upon him during that period. Ibn Rajah points out that these scholars differ as to whether the separation is only to be granted if the husband intended by that the harming of his wife. Malik and his companions say that if a husband avoids intercourse with his wife for no valid excuse, then their marriage can be dissolved. However, 1 Ibn Rajah, Jaami, vol. 2, p. 2 14. Hadith #32: "There is not to be Causing of Harm . . . " they differ as to the length of the period of time. Some say six months while others say two years. 1 The important point is that all of these rulings and similar ones are based on the principle mentioned in this hadith. There is nothing beneficial in the deeds described above. They just bring about harm and no benefit. It is not permissible for anyone to harm anyone else. If such harm is present, it must be put to an end. That is the basis for the above rulings and many other rulings in the Islamic fiqh. Acts that are Beneficial to One and Harmful to Another A much more problematic area is where a person performs an act that is permissible and beneficial for him but that, unfortunately, has negative consequences for others. An example is when a person uses his property in a way that is permissible but while doing so he has damaged his neighbor's property. How are cases like this to be handled in the light of this hadith? If a person performs an act that is customarily considered improper because it is known to lead to harmful results, he would be held responsible for that act and should be prevented from it. The example that the scholars give is a person starting a bonfire on his property on a very windy day. If the fire spreads to his neighbor, he is to be held responsible for the damage that he caused. There is agreement among the scholars on that point. 2 If the act is a normally acceptable and proper act, what then should be the ruling? Suppose, for example, a person adds a second floor to his house and now has windows overlooking his neighbor's property by which he can see the womenfolk who live next door. Is he allowed to do such a thing which obviously brings about harm to his neighbor? There is a difference of opinion among the scholars concerning the extent to which this hadith, "There is not to be any causing of harm nor is there to be any reciprocating of harm," is to be applied when it comes to one's sole personal belongings, shared or co-joining properties and the public interest. Why this question is difficult to answer is because it involves to conflicting harmful results: The owner of his property will be harmed if he is not allowed to use his property in a manner that benefits or pleases him; and the other party will be harmed if the owner is allowed to use his property in the manner he so desires. The different schools of fiqh have taken different approaches to this question, going from one extreme in applying this hadith with respect to personal property to the opposite extreme. Each school shall be discussed separately.3 1 Cf., ibn Rajab, Jaami, vol. 2, p. 2 14. 2 Cf., Ibn Rajab, Jaami, vol. 2, p. 2 1 7. 3 The following discussion is mostly based on Ahmad Muwaafi, Al-Dharar fi al-Fiqh al-/slaami (Al-Khobar, Saudi Arabia: Daar ibn Atfaan, 1 997), vol. l , pp. 25 1-327. Also see Abdullah al­ Muslih, Quyood al-Milkiyyah al-Khaasah (Riyadh: Daar al-Muayyad, 1995), pp. 509-554. Commentary on the Forty Hadith of al-Nawawi The Hanafi Approach: The Hanafis are explicit that the wording of this hadith, "There is not to be any causing of harm nor is there to be any reciprocating of harm," is general but its meaning is specific or particularized.' They say that hudood and tazeer punishments are obviously exempted from the meaning of this hadith although they obviously cause harm to those being punished. They extend that exemption from this ruling to the case of a person who has a tree on his property that provides shade to his neighbor. They say that it is permissible for the owner of the tree to cut down that tree and to do with his property what he wills, even if it may cause some slight harm to his neighbor.