. JI ದ : ; (cont.)

(2) If a person is going to do an otherwise permissible act with his property but his sole intention is to harm someone else, then it is not allowed for him to do that act. Furthermore, if he is going to do something that he does not need to do or will not get any overriding benefit from but its only result will be harming others, he, again, is not allowed to do that act. (3) A person may do what he wills with his property when it does not bring about any harm to others. ( 4) If a person is in need of doing something with this property and the act will result in an overriding benefit, without any intent to cause harm to others, than that act is allowed and the resulting harm, if any, is to be excused. Ahmad was also of the view that if a person was going to do an act that was not going to harm his neighbor, then the neighbor has no right to object to his act since no harm is going to come to him. For the neighbor to try to stop the person in this case is actually a kind of causing of harm by the neighbor since he is preventing the other person from doing with his wealth what will be. pleasing to him. This is the manner in which the Hanbalis attempt to balance the implication of the hadith, "There is not to be any causing of harm nor is there to be any reciprocating of harm," with the general principle that a person has the right to dispose of his property in any permissible fashion he wills. Muwaafi's Conclusions: After reviewing the four schools of fiqh2 Muwaafi came to the following conclusions: All of the four schools of fiqh accept this hadith and its implication as a general principle (qaaidah fiqhiyah) that applies to co-owned or co-joined property or wealth as well as matters related to the public interest. They differ as to whether this hadith restricts an individual's right to use his sole property in the way he wishes. The Hanbalis definitely say it does. The Malikis are close to their view. The Hanafis do not apply to such property, unless it creates a clear and great harm. The Shafi' ees are on the furthest other end and do not apply it in general to a person's use of his solely owned property. However, the Shafi' ees and Hanafis do not completely disregard this hadith with respect to one's solely owned property, as was shown in the previous discussion. In other words, the Shafi' ees and Hanafis give more preference to individual property rights while the Hanbalis give more preference to the literal meaning of this 1 Cf., ibn Raj ab, Jaami, vol. 2, p. 2 1 7. 2 Muwaafi also reviewed the views of the Dhaahiris and Shiah. Commentary on the Forty Hadith of al-Nawawi particular hadith. If one looks at the shareeah evidences as a whole, Muwaafi concludes that the Hanbalis have the stronger argument as the shareeah as a whole is always trying to bring about benefit and prevent harm. Abu Zahra's Approach: Muhammad Abu Zahra has approached this question from a slightly different angle, having been influenced by al­ Shaatibi' s discussion in al-Muwaafaqaat. He divides the cases of possible harm to others through the use of one's own property into the following cases: (1) A case where harm is almost certain to occur: If, in this case, the person is able to use his property or meet his goal in such a way that it does not harm another party, then he is not allowed to do the harmful act and must instead do the non-harmful act. If such is not possible and the resulting harm will be a general or public harm, then the general interest takes precedence and the person is prevented from doing the act. If the act will harm only another individual, for example, then the right of the person to use his personal property in a beneficial manner takes precedence over the right of the person who is going to be harmed. (2) A case where harm is probable to occur: In this case, the ruling is exactly the same as in the cases described under (1). This is because in Islamic law the ruling for what is probable to occur is, in general, the exact ruling as for that which is certain to occur. This is a legal maxim that most jurists adhere to. If the amount of expected benefit is greater than or equal to the amount of probable harm, the person is free to use his personal property in the manner he so wills. (3) A case where harm occurs often but is not necessary probable or in the majority of the cases: The Shafi'ee and Hanafi approach is that the basic ruling is that of permissibility unless it can be shown that the act will bring about some harm.