Some Legal Maxims Pertaining to Public Health

Setting the Framework: Understanding Legal Maxims:

What is a legal maxim?

A legal maxim (qa`idah fiqhiyyah) is, “A universal rule learned through induction which
applies to many individual cases.” Basically, scholars will look through the texts in an action
known as istiqra’, which is a comprehensive reading, and will then use induction to
determine universal principles and rules that are applicable to multiple scenarios.

The evidences used by the scholar may or may not be used to prove a universal concept
(qa`idah kulliyyah), but generally, there are five main legal maxims that are unanimously
accepted by jurists:

1) Actions are but by intention.

2) Certainty is not eliminated by conjecture.

3) Difficulty brings rise to ease.

4) Customs are authoritative.

5) Do not harm and do not reciprocate harm.

Apart from these five, there are other legal maxims that pertain to all discussions in
jurisprudence, whether it be related to worship, financial dealings, marriage and divorce,
and criminology.

The Legal Maxims that Pertain to Coronavirus:

‫الضرر ٌزال أو ال ضرر وال ضرار‬

Harm should be eliminated. Another articulation states, “Do not harm and do not
reciprocate harm.”

This maxim has submaxims, such as:

“Harm should be lessened to the furthest extent possible.”

“Harm should not be eliminated through use of another harm.”

“Individual harm should be withstood in order to repel harm from society at large.”

“When conflicted, repelling any harm is preferable to gaining utility.”

“When conflicted, communal benefits are more important than private benefits.”

‫ما ال ٌدرك كله ال ٌترك جله أو المٌسور ال ٌسقط بالمعسور‬

What cannot be wholly achieved must not be mostly neglected. It is also articulated as,
“Just because a part of worship is impossible, it does not mean the possible parts may be
neglected.”

‫المصلحة العامة مقدمة على المصلحة الخاصة‬

When conflicted, communal benefits are more important than private benefits.

Imam Badr al-Din al-Zarkashi said,

“The maxim which pertains to two mutually exclusive harms that one must choose
between: Ibn `Abd al-Salam said, ‘The scholars have unanimously agreed that the greater
harm must be repelled if it means committing the lesser harm.’ Ibn Daqiq al-`Id said, ‘One of
the universal maxims is that the greater of the two harms should be repelled by doing the
lesser of the two harms, if indeed one will inevitably happen.’”

How is this issue to be framed? Who decides which harm is worse? This goes back to
understanding the overlying intents of the Shari`ah.

Examples:

Prayer:

ًِ‫صلُّوا ف‬ َ : ‫ ث َّم قَا َل‬، َ‫ضجنَان‬ َ ‫ار َدة ِب‬ِ ‫ " أ َ َّذنَ ابن ع َم َر فًِ َلٌ َلة َب‬: ‫ قَا َل‬، ‫عن نَافِع‬ َ )696( ‫ ومسلم‬، )666( ‫روى البخاري‬
" ‫الر َحا ِل‬ِ ًِ‫صلوا ف‬ُّ َ
َ َ‫ " أال‬: ‫علَى إِث ِر ِه‬ َّ
َ ‫ ث َّم ٌَقول‬، ‫سل َم َكانَ ٌَأمر م َؤ ِذنًا ٌ َؤذِن‬ َ ‫صلَّى للا‬
َ ‫علٌَ ِه َو‬ ِ َّ ‫ فَأَخبَ َرنَا أ َ َّن َرسو َل‬، ‫ِر َحالِكم‬
َ ‫ّللا‬
‫سف َِر‬ َ ِ‫ أ َ ِو ال َمط‬، ِ‫ار َدة‬
َّ ‫ فًِ ال‬، ِ‫ٌرة‬ ِ َ‫ فًِ اللٌَّلَ ِة الب‬.

Bukhari (666) and Muslim (697) reported that Nafi` said,

Ibn `Umar called Athan on a cold night in Dhajnan, and then said, ‘Pray near your belongings
(or in your homes), and then informed us that the Messenger of Allah, peace be on him,
used to order the caller to Athan to say, ‘Pray near your belongings (or in your homes),’
during nights that were cold, rainy, or during travel.

Therefore, one is permitted to not pray in congregation if there is rain or it is cold outside, or
during travel.

The reason? ‫ المشقة تجلب التٌسٌر‬hardship generates ease.

Also, Allah said,

‫طائِفَة‬َ ‫ت‬ ِ ‫س َجدوا فَل ٌَكونوا مِ ن َو َرائِكم َولت َأ‬ َ ‫طائِفَة ِمنهم َّم َعكَ َول ٌَأخذوا أَس ِل َحت َهم فَإِذَا‬ َّ ‫َو ِإ َذا كنتَ فٌِ ِهم فَأ َ َقمتَ لَهم ال‬
َ ‫ص ََلة َ َفلت َقم‬
َ
َ‫عن أس ِل َحتِكم َوأمتِعَتِكم فٌََمِ ٌلون‬ َ َ َ‫صلُّوا َمعَكَ َولٌَأخذوا حِ ذ َرهم َوأس ِل َحت َهم ۗ َو َّد الذٌِنَ َكفَروا لَو ت َغفلون‬
َّ َ َ ٌ‫صلُّوا فَل‬ َ ٌ ‫أخ َرى لَم‬
ۗ ‫ضعوا أس ِل َحت َكم ۗ َوخذوا حِ ذ َركم‬ َ َ َ
َ ‫ضى أن ت‬ َ َ ً َ
َ ‫علٌكم إِن كانَ بِكم أذى ِمن َّمطر أو كنتم َّمر‬ َ َ َ ‫علٌَكم َّمٌلَةً َواحِ َدة ۗ َوال جنَا َح‬
َ ً َ
‫عذَابًا ُّم ِهٌنًا‬ َ َ ‫ّللا أ‬
َ َ‫ع َّد لِلكَاف ِِرٌن‬ ََّ ‫ِإ َّن‬

“When you [Prophet] are with the believers, leading them in prayer, let a group of them
stand up in prayer with you, taking their weapons with them, and when they have finished
their prostration, let them take up their positions at the back. Then let the other group, who
have not yet prayed, pray with you, also on their guard and armed with their weapons: the
disbelievers would dearly like you to be heedless of your weapons and baggage, in order for
them to take you in a single assault. You will not be blamed if you lay aside your arms when
you are overtaken by heavy rain or illness, but be on your guard. Indeed, God has prepared a
humiliating punishment for the disbelievers.” (4:1o2)

Fasting:

Allah said,

َّ ‫سفَر فَ ِعدَّة مِن أٌََّام أخ ََر ۗ ٌ ِرٌد‬

‫ّللا بِكم الٌس َر َو َال ٌ ِرٌد بِكم‬ َ ‫شه َر فَلٌَصمه ۗ َو َمن َكانَ َم ِرٌضًا أَو‬
َ ‫علَى‬ َّ ‫ش ِه َد مِ نكم ال‬
َ ‫فَ َمن‬
‫العس َر‬

“So any one of you who is present that month should fast, and anyone who is ill or on a
journey should make up for the lost days by fasting on other days later. God wants ease for
you, not hardship.” (2:185)

Therefore, if someone is sick, it’s preferable for them to break the fast, and undesirable
(makruh) to continue fasting if it harms them, according to a number of scholars. Further, if
a person is fasting due to dhihar, it is obligatory that they break their fast if they have a life-
threatening illness. (al-Furu`, 4/437)

Further, the Prophet, salla-llahu `alaihi wa sallam, said, “It is not piety to fast while
traveling.”

Hajj:

The Prophet, salla-llahu `alaihi wa sallam, said, “Hajj if one is able.” Therefore, if one is
unable, Hajj is not obligatory.

When is someone allowed to miss congregation or Jumu`ah?

Shaikh Mansur al-Buhuti says,

‫ لما‬- ‫سلَّ َم‬

َ ‫علٌَ ِه َو‬ َّ ‫صلَّى‬
َ ‫ّللا‬ َ - ‫فصل فً األعذار المسقطة للجمعة والجماعة (وٌعذر بترك جمعة وجماعة مرٌض) ؛ ألنه‬
‫ وكذا خائف حدوث مرض وتلزم الجمعة دون‬.‫«مروا أبا بكر فلٌصل بالناس» متفق علٌه‬:‫مرض تخلف عن المسجد وقال‬
‫ أو محموال (و) ٌعذر بتركهما (مدافع أحد األخبثٌن) البول والغائط (ومن بحضرة‬،‫الجماعة من لم ٌتضرر بإتٌانها راكبا‬
‫ أو‬،‫الطعام) هو (محتاج إلٌه) وٌأكل حتى ٌشبع لخبر أنس فً " الصحٌحٌن " (و) ٌعذر بتركهما (خائف من ضٌاع ماله‬
‫ أو آبق‬،‫ أو له ضالة‬،‫ أو له خبز فً تنور ٌخاف علٌه فسادا‬،‫ أو نحوه‬،‫ أو ضررا فٌه) كمن ٌخاف على ماله من لص‬،‫فواته‬
‫ (أو) كان‬،‫ أو ٌتضرر فً معٌشة ٌحتاجها‬،‫ أو مال‬،‫ أو ٌخاف فوته إن تركه ولو مستأجرا لحفظ بستان‬،‫ٌرجو وجوده إذا‬
‫ أو‬،‫ أو خاف على أهله‬،‫ أو لم ٌكن من ٌمرضهما غٌره‬،‫ أو رفٌقه‬، )‫ أو الجماعة (موت قرٌبه‬،‫ٌخاف بحضوره الجمعة‬
،‫ولده‬

Absolved from missing Jumu`ah and congregational prayers are: the sick, because when the
Prophet, salla-llahu `alaihi wa sallam, became ill, he did not go to the mosque and instead
said, ‘Tell Abu Bakr to lead the people in prayer.’ Reported by al-Bukhari and Muslim.
Likewise, absolved are those who fear becoming sick. Likewise, those who are holding in
feces or urine, or those who are in the presence of food and are in need of eating; in the
second case, they should eat until they are full, because of the hadith reported by al-Bukhari
and Muslim. Likewise, absolved are those who fear loss of their wealth, passing of their
wealth, or harm in their wealth. As examples, someone who fears from a thief who might
steal their money, etc., and those who have bread in an oven that he fears might burn, or
someone who has a missing item that they otherwise will not be able to retrieve, or if
someone fears loss of something even if they were merely hired to guard a garden or
wealth, or if someone fears harm in wealth they need for their lives.

Likewise, absolved are those who fear that by attending Jumu`ah and congregation, a
relative will die, or a travel partner will die, or if there is no one to look after their sick
besides them, or if a person fears for their family or children.” (Al-Rawdh al-Murbi`)

Based on all of these facts, can anyone deny that mass nonattendance of Jumu`ah prayers is
not only permissible, but recommended during times of a pandemic?

• A person can pray without the pillars and obligations of prayer for fear of being killed.

• A person may miss congregation and Jumu`ah if they have to use the bathroom and
cannot hold it in.

• A person can miss congregation and Jumu`ah if they fear the loss of wealth.

• A person can miss congregation and Jumu`ah if they fear loss of a loved one or travel
partner.

• A person can abandon fast if they fear sickness or becoming sick, even if they are not at
that time sick.

However, if a person fears spreading a mass virus to their elderly at home, they cannot miss
congregational prayer? This neither follows logically nor religiously.

The Basics of Qiyas (analogy):

Qiyas is to make a judgement on an issue based on a prophetic judgement in another issue,

while bearing in mind the underlying influencing ratio legis.

Here we have some examples:

Qiyas al-`Illah:

This is when we know the ratio legis and are able to determine it from the text itself. In such
a case, we can apply it to any subsidiary matters not directly mentioned by the text.

For example:
ًِ‫صلُّوا ف‬ َ : ‫ ث َّم قَا َل‬، َ‫ضجنَان‬ َ ِ‫ار َدة ب‬ ِ َ‫ " أ َ َّذنَ ابن ع َم َر فًِ َلٌ َلة ب‬: ‫ قَا َل‬، ‫عن نَافِع‬ َ )696( ‫ ومسلم‬، )666( ‫روى البخاري‬
" ‫الر َحا ِل‬ِ ًِ‫صلوا ف‬ُّ َ َ
َ ‫ " أال‬: ‫على إِث ِر ِه‬ َ َّ
َ ‫ ث َّم ٌَقول‬، ‫سل َم َكانَ ٌَأمر م َؤ ِذنًا ٌ َؤذِن‬ َ ‫صلَّى للا‬
َ ‫علٌَ ِه َو‬ ِ َّ ‫ فَأَخبَ َرنَا أ َ َّن َرسو َل‬، ‫ِر َحالِكم‬
َ ‫ّللا‬
‫سف َِر‬ َ ِ‫ أ َ ِو ال َمط‬، ‫ار َد ِة‬
َّ ‫ فًِ ال‬، ِ‫ٌرة‬ ِ ‫ فًِ اللٌَّلَ ِة ال َب‬.

Bukhari (666) and Muslim (697) reported that Nafi` said,

“Ibn `Umar called Athan on a cold night in Dhajnan, and then said, ‘Pray near your
belongings (or in your homes), and then informed us that the Messenger of Allah, peace be
on him, used to order the caller to Athan to say, ‘Pray near your belongings (or in your
homes),’ during nights that were cold, rainy, or during travel.”

This hadith is what is known as the Asl, as in, the original text that indicates the ruling.

Attending Jumu`ah and likely becoming a carrier of a virus to an elderly at risk person. This
is known as the Far`.

The commonality between the two, in this case, is fear of harm.

As such, the ruling would be that someone who fears the harm of others or themselves by
going to prayer or not practicing social distancing must refrain from going to Jumu`ah
prayer.

Precedent:

Have mosques ever been closed before?

We have just mentioned the hadith where the Prophet said to pray in your homes and near
your belongings. This means no one was praying in the mosques. That is quite clear.

The Value of Human Life:

Lastly, I leave you with the amazing words of Imam al-Tahir bin `Ashur, who said,

‫ وفً كل نفس‬،‫ ألن العالَم مركب من أفراد اإلنسان‬،ً‫ومعنى حفظ النفوس حفظ األرواح من التلف أفرادا ً وعموما‬
‫أضعف‬
َ ‫ بل نجد القصاص هو‬،‫ظها بالقصاص كما مثل به الفقهاء‬ َ ‫ ولٌس المراد حف‬.‫خصائصها التً بها بعض قِوام العالم‬
‫ مثل مقاومة األمراض‬،‫ بل الحفظ أهمه حفظها عن التلف قبل وقوعه‬.‫بعض الفوات‬ ِ ‫ ألنه تدارك‬،‫أنواع حفظ النفوس‬
ً‫ والمراد النفوس المحترمة ف‬.)1( ‫ وقد منع عمر بن الخطاب الجٌش من دخول الشام ألجل طاعون عمواس‬.‫السارٌة‬
‫صن بالرجم مع أن حفظ النسب دون‬ َ ‫ أال ترى أنه ٌعاقَب الزانً المح‬.‫ وهً المعبر عنها بالمعصومة الدم‬،‫نظر الشرٌعة‬
َّ ٌ ً‫ وهً األطراف الت‬،‫ وٌلحق بحفظ النفوس من اإلتَلف حفظ بعض أطراف الجسد من اإلتَلف‬.‫مرتبة حفظ النفس‬
‫نزل‬
2( ‫ مثل األطراف التً جعلت فً إتَلفها خطأ َ الدٌة كاملة‬.‫)إتَلفها منزلة إتَلف النفس فً انعدام المنفعة بتلك النفس‬.

“The meaning of ‘preservation of life,’ means to protect both individuals and the generality
of people from death. The world comprises of individual humans, and each individual person
has their share of unique actions and attributes, each of which play a part in maintaining the
world. The point of the concept of ‘preservation of lives,’ is not via retribution, as many
jurists use as an example. Actually, we find that retribution is the weakest type of
preservation of souls, because it is merely a rectification of something missed prior.
The meaning of ‘preservation of life,’ most importantly, is to protect it before its loss, by
protecting against contagious diseases. `Umar bin al-Khattab forbade the army from
entering Damascus due to the Plague of `Amwas.

The meaning of ‘lives,’ is the lives protected and respected by the Islamic system of law,
those who are referred to as having ‘protected blood.’ Do you not see that an adulterer is to
be killed, although preservation of bloodlines is less important than the preservation of life?

Appended to the concept of preservation of life is the concept of preservation of parts of the
body from destruction, the loss of which is tantamount to the loss of the soul, as in, that part
of the body will no longer be useful to the person. A good example is the parts of the body
that require the entirety of the blood money if they are injured or destroyed.” (Maqasid al-
Shari`ah al-Islamiyyah)

What must be further considered is that a person may utter a statement of disbelief if they
fear for their lives. In this case, they say something that would otherwise take them outside
of the fold of Islam, just to preserve their lives.

Conclusion:

The issue is with not understanding the full possible harm of this virus. These links can help
anyone understand what is truly going on, and Muftis who have no understanding of these
things need to keep out of public policy and focus on teaching things they are more aware
of.

Another issue is fear of making Fatwas for public backlash. Muftis should be scientifically
aware and also able to understand the true nature of what doctors are saying but must also
have the courage to say something that is not politically correct.

The solutions mentioned, such as just 3 people going to each mosque, are laughable and
show a deep disconnect between understanding law and practicing law.

• What if one of the three is a carrier with mild symptoms?

• What if one of the three has old relatives?

• What if two of the three are not carriers, but one is, and he passes it to the other two, and
each of them go to work, pass it on at home to their spouse and children, or pass it on to
their old parents?

https://medium.com/@ariadnelabs/social-distancing-this-is-not-a-snow-day-ac21d7fa78b4

https://informationisbeautiful.net/visualizations/covid-19-coronavirus-infographic-
datapack/

https://www.thestar.com.my/news/nation/2020/03/14/covid-19-77-patients-linked-to-sri-
petaling-mosque-gathering-as-of-saturday-march-14
https://www.independent.co.uk/voices/coronavirus-uk-doctor-nhs-hospital-symptoms-italy-
china-a9397736.html

https://www.washingtonpost.com/graphics/2020/world/corona-simulator/