. JI ದ : ; (cont.)

They argue that this hadith, "There is not to be any causing of harm nor is there to be any reciprocating of harm," applies only to great or destructive harm, such as a person doing something with his property that will destroy another person's property, completely block off a basic need to another person or make another person's property unusable. In other words, the Hanafis give preference to a person's general right to use his own personal property over the general meaning of this hadith. This seems to be the clear opinion of Abu Hanifah, Abu Y oosuf and Muhammad al-Shaibaani. 2 The second question of importance here is one piece of property that has shared ownership. For example, if two people own two apartments in the same apartment building, one on the upper floor and the other on the bottom floor, does the one on the top floor have the right to do something that is harmful to the one on the bottom floor? In this case, the Hanafis take a slightly different approach. They do not allow either person to do anything that would harm the other, even if the harm is only slight. If a person is going to do something that is going to cause a general or public harm, then the Hanafis state that this hadith, "There is not to be any causing of harm nor is there to be any reciprocating of harm," is to be applied in its most general sense. No one is allowed to cause such public harm even if that harm is not of a great nature. Hence, it can be seen that the Hanafis' prohibition of harm becomes stricter as one moves from one's private personal belongings to property that is co-owned or co-joined to matters affecting the public interest. A person has the right to use his exclusive and sole personal belongings in any permissible way he sees fit, even if it causes slight harm to others. However, if others have a vested interest in that property or if the common interest is involved, he is not allowed to create any harm, even if that harm is slight. It should also be noted that the Hanafis do state that it is morally wrong to cause any kind of harm to 1 This is an acceptable form of speech wherein one says something in a general fashion while the actual intent is to refer to only a subset of the general class. 2 Muwaafi, vol. I , p. 261 , notes that some of the later Hanafi scholars were somewhat more liberal in their application of this hadith and placed more restrictions on a person's use of his private property. Hadith #32: "There is not to be Causing of Harm . . . " others in all cases, although legally the law cannot object in the first case of slight harm while using one's exclusive property. The Maliki Approach: The Malikis accept the hadith, "There is not to be any causing of harm nor is there to be any reciprocating of harm," and adhere to it in its most general meaning. Based on it, they forbid any form of harm, even if it involves a person's use of is own private property. In other words, they give preference to the implication of this hadith over the general right of the person to use his property in any permissible manner he wills. Therefore, for example, they say that a person is not allowed to dig a well on his property if that causes harm to his neighbor's already existing well. Studying the fatwas or rulings of Imam Malik himself, such was definitely his approach to this issue. The esteemed Maliki legal theorist al-Shaatibi discussed this issue and divided the possible cases into eight cases: (1) the case where the act does not necessarily cause harm to another; (2) what necessarily causes harm to another and the person intends to harm the other; (3) what necessarily causes a general harm but the person does not intend that harm; ( 4) what necessarily causes harm to another but the person does not intend the harm and is in need of performing the act; (5) similarly to (4) but the person is not in need of the act and it only causes harm; (6) what rarely causes harm; (7) what causes harm in the majority of the cases; and (8) what causes harm often but not in the majority of the cases. In the first case, the person is definitely allowed to perform the act. In the second case, he is sinful due to his intention and if there is no other way for him to achieve his beneficial goal, he is still allowed to go forth with the act. In the third case, the general interest takes precedence over his individual need. The fourth case is the most debatable. Al-Shaatibi concludes that the person fulfilling his need will take precedence over harming the other.