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Saturday, 31 December 2011

Forbidden list for business transaction

Islam has not provided any exhaustive list of halal (permitted) business transactions. In fact, no list of this nature has been provided by the blessed Prophet (peace and blessings of Allah be to him). Rather, the guiding principle is that everything that has not been forbidden (declared as haram) is permitted. Hence a list of items and traits that make something forbidden has been described by the blessed Prophet.
This is a great boon for mankind as he has not been burdened with any description of permitted affairs as that would have made human life miserable. A small, countable and exact list of forbidden things has been pronounced and enlisted, leaving man free to take advantage of the vast scope of earning his livelihood and entering into any trade and business deals of his liking and in accordance with his abilities and available opportunities. It is like opportunity provided for Adam, our forefather, to visit any place in the Paradise and consume anything except the produce of one tree. It is another matter that man is tempted to do the forbidden act and thereby lose the Paradise itself! The message is the same even today; keep at bay the forbidden zone and exploit all other opportunities, the life on earth will become like that in the Paradise and this will, God-willing, pave the way for his entering the Paradise itself hereafter – this time eternally as we will be spared the test that our forefather faced.

The forbidden list and features relevant for business transactions are very limited; in fact, they are less than twenty in number. Any business venture not hit by the provisions of these less than twenty forbidden items and traits can be construed and considered Islamically in order. Here lies their relevance and importance. So to ascertain the correctness of any proposal, the correct approach is to examine whether or not it falls under any forbidden activity or attribute. If it is not improper, it must be proper. For everything is permitted if not expressly prevented.
Islamic scholars have described these principles under exclusive terms and qaaidah fiqhiya (jurisprudential principles) that may be called fiqh maxims. Our objective in this write-up is to reach the relevant texts (nasoos) of the traditions of the blessed Prophet for better understanding of the letter and spirit of principles. The relevant texts of the Holy Qur’ān are well-known and those can be found with little effort. However, some amount of searching will be required to reach relevant traditions of the blessed Prophet.
In order to understand these in their true letter and spirit, we will discuss these severally.

Both causing harm initially and reciprocating harm in response to the harm caused are not permitted. Prophet Muhammad (peace and blessings of Allah be to him) has, in a very popular tradition (hadeeth) has expressed his disapproval of both the types of harm – initial and the reciprocal.
“There is not to be any causing of harm nor is there to be any reciprocating of harm” [as reported by al-Daaraqutni, al-Baihaqi and al-Hakim, and narrated by Abu Saeed al-Khudry (may Allah be pleased with him)]. Other companions of the blessed Prophet such as ibn Abbas, Aisha, Jaabir, Ubada ibn al-Samit, Abu Hurairah, Abu Lubaadah and Thalaba and ibn Abu Maalik (may Allah be pleased with all of them) have also narrated this hadeeth.
The Arabic wordings, la dharar wa la dharar, is so much popular that it is often quoted as a phrase and axiom. Its literal translation would be ‘no harm and no reciprocal harm.’ This is in the form of a statement. However, when a statement comes from the blessed Prophet it becomes a commandment and is imperative upon the faithful to act accordingly. This is the spirit in which Islamic scholars have taken and described this particular Prophetic tradition.
Apart from the position that no person should harm any other person, this Prophetic tradition means that every person has the right to make sure that he is not harmed by any other person. This right of taking due care to ensure self-interest is ingrained in the principle of no-harm-and-no-reciprocal-harm. Business transactions are done on mutual consent and in pursuit of mutual benefits. Such deal on mutual benefit with free will cannot be ensured without abstaining from causing harm from both sides.
The difference of meaning of dharar and dharar has been understood by the experts in different situations. One view is that both the words mean the same and the latter is an expression of stressing the former. A more plausible and understandable view is that dharar is in reference to an act by which someone benefits but which, unfortunately, harms others. On the other hand dharar is an act by which no one benefits and only harm is brought upon others.” [Zarabozo, Jamal al-Din M; Commentary on the Forty Hadith of al-Nawawi; published by Al-Basheer Company for Publications and Translations, USA, Volume 3, P.1135-1160]
An act whereby a person himself is not benefited but it is meant to harm others is heinous. It is obviously wicked and evil. However, some discussion is required in the case where a person does not intend to harm others and he acts in self-interest only but, in effect, it affects others. Although no harm is intended but it harms others. These are the acts beneficial to one and harmful to another. This case has been discussed by almost all the schools of thought of Islamic jurisprudence. Jamal al-Din M. Zarabozo [ibid] has summed up these discussions brilliantly and concluded that virtually any act that a person does with his personal private property can be seen as an infringement or harm upon others. If an act performed in a normal manner causes a normally accepted and expected harm, a person should not be prevented from doing that. However, if the act is done in an improper manner and it causes unacceptable level of harm, the person so causing harm will be prevented and he will be liable for compensating any damage caused thereby. Performing an act in pursuit of any benefit is a right of a person and so barrier to performance will be raised only if the act brings unacceptable level of distress to others.  Another relevant deciding factor is that the interest of the general public will take precedence over the right-to-act of any person. The rights of the society may supersede the rights of an individual.
Another barring situation is the due process of law. A person may be harmed by owing to such process of law.

Fiqh Maxims are basically principles of jurisprudential thoughts in Islam which are applied in all areas of jurisprudence to ascertain law relating to any aspect of human life. The Prophetic tradition we are discussing is itself applied as afiqh maxim. Further, a number of fiqh maxims have also been derived from this tradition (hadith). Zarabozo [ibid] has enlisted the following eight such jurisprudential principles:
1.      “Harm is to be prevented from appearing as much as possible.” As prevention is better than cure, the approach should be to thwart the harm before it happens or remove it at the earliest if it has already appeared. Proactive action for averting harm is called for.
2.      “Harm is to be removed or put an end to.” A corollary of this principle is that the person responsible for the harm is responsible for the consequential damages.
3.      “Harm is not to be removed by a similar harm.”
4.      “A greater harm can be removed by a lesser harm.” A corollary of this principle is that if one has no other option, he should take the lesser of two evils. Another corollary is that if there is conflict between two evils, one should avoid the evil of the greater harm.
5.      “The presence of a particular harm is accepted to ward off a general harm.” As society’s need takes precedence over individual needs, harm to individuals or to lesser number of people will be accepted in order to prevent the harm to the general public.
6.      “Preventing evil takes precedence over bringing about some benefit.” The example of sale of intoxicants may be cited. There are admittedly economic benefits involved but the decision to prevent their transaction is based on their harm. Something may have both benefit and harm. In that case prevention of harm shall take precedence over getting the benefit.
7.      “If there is a conflict between factors calling for something and factors prohibiting something, the prohibition takes precedence.” 
8.      “Something harmful is not given precedence just because it was pre-existing.” Existence of anything, as such, does not always give it sanctity and justification for continuation. If it may cause any harm, it may be removed as prevention of harm is a more sacrosanct object.       
 ---by Dr. Waquar Anwar  []                                                                                 

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