(3) Eliminating Detriment:

"No wrong, no wrong doing"

This most important rule of the Sharia is based on a Hadith with similar wording. This guiding rule, read with its sub-rule, "wrong is to be undone".provides a guideline to regulate the entire economic and financial system in such a way that prohibits harm imposition and discourages retaliation. This basic rule is treated as a pillar of Islamic law. The rule forms the basis of the laws of option, inhibition, return of defective merchandise, preemption, requital, Hudud, compensation and indemnity, etc.("' This also allows individuals to act unilaterally to protect themselves or others from harm. It is therefore, necessary that an Islamic state should legislate and manage in such a way that would plug the sources of causing harm or damage. It is on this basis that the government has a right to blacklist those traders who indulge in illegal and anti-social activities such as smuggling and adulteration.

It can also take action against those influential persons who provide support or give protection to unlawful practices or to miscreants.

It is on this basis that a landlord is not allowed to eject the tenant from the cropped land even on the expiry of the period of the contract of tenancy so that the cultivator is protected from the loss of his crop. The landlord is bound to extend the period of tenancy against payment of standard rent till the crop sown by the tenant is harvested.

In case the buyer of perishable goods absents himself without taking possession of the purchased goods the seller, in order to protect himself and the buyer from loss, has a right to unilaterally revoke the contract of sale and sell the goods to some other party lest the commodity should perish.

The application of the rule has the following prerequisites:

"Let the ancient rest on its age".

Thus it is not permissible to close an age-old thoroughfare or to prevent the livestock from grazing in jungle or public pasture which has been in use since a long time. These rights have to be guaranteed unless their exercise is harmful to general interest. This is so because of the operation of another rule that

"A wrong is a wrong even though it be ancient".

Thus if an age-old canal is causing water logging and salinity; it should not be allowed-to flow simply on account of previously held rights.

If a well has become dangerous to the neighboring population it will be leveled up even if it is very old. The government may ban cycle rickshaws in case it is found to seriously impair the health of the rickshaw-pullers or in case it has become a nuisance to traffic. The government may also ban fishing on boats in high seas on account of high risk in case motor-operated boats are available. It can also order for shifting age-old noxious workshops and factories from congested areas. Thus ancientness would not be an excuse to continue a thing that has become hazardous.

"Unlawful things are to be prevented irrespective of benefit".

There may be situations in which an act might' have certain benefits while it produces corruption and inequity. In such a case the Sharia would ban that act despite the benefits that it might apparently yield.

Trading in unlawful items and earning with unlawful ways might provide employment to a large number of persons and bring substantial revenues to the government. Nonetheless the unlawful items in trading must be eliminated since the removal of corruption has priority over acquisition of benefits - economic, social or otherwise.

Gambling or wager might be an effective source of collecting funds for philanthropic objectives; nevertheless, they have to be avoided since the acquisition of benefits is less important from the viewpoint of the Sharia than the avoidance of corruption.

There may be situations in which a trade, technique or a policy is not unlawful but involves both benefit and harm; such situations are governed by the following subsidiary rules:

(a) "Injury is to be resisted to the extend possible"

This rule provides us with a guideline to adjust our policies in those situations which, although lawful, are fraught with risk and harm.

Automation would, in the short run, lead to unemployment. Industrialization may lead to pollution of atmosphere and overcrowding. Public expenditure on economic development may have an inflationary effect.

These risks or damages would not suggest that the efforts towards economic development should be discontinued. What the rule amounts to is that such effort should be continued with a serious effort to minimize the adverse effects as far as possible. The following further rules present the practical guidelines:

(b) "A wrong is not avoided by another of the same kind".

The law of sustenance binds a person to provide to kinsmen if they are struck by hunger and want. But enforcing this requirement on, a pauper who possesses a single meal would merely transfer the harm from one person to another. This is repelling harm with a similar harm and is not recommended.

In case a buyer gets a faulty article he is given the option to return the goods. But if the purchased article has developed similar fault while in possession of the purchaser he will lose his option to return the goods because, in order to protect himself from harm, he will also be harming the seller. This would amount to repelling a harm by causing a similar harm.

The rule also lays down an important policy criterion for the government.

It is not lawful for any government to rob a person or a group in order to provide benefit to some other person or a group. Thus it may not provide employment to some by denying it to others. Likewise it may not irrigate some farms by drying up similar other farms.

In short, it is not allowed to use public property_ for the benefit of some at the cost of others' benefit.

(c) "A greater injury may be molded (enduring) a lesser injury".

The principle is that one may not ordinarily compel a well-to-do person in order to distribute his income among the have-nots. But in situations where relatives are needy the government has a right to compel him under the law of sustenance to bear their expenses, as well, because the harm that is caused by the poverty of the poor relative is more serious than the harm caused by the compulsory distribution of a portion of well-to-do's wealth among his near relatives.

Similarly, the government may compel a resourceful debtor to redeem the debt on stipulated time.

The rule also provides some important choices in order to endure a minor harm to counteract a major harm. For example, in case a customer loses his coin in a slot, his coin may be allowed to go waste rather than to dismantle the machine which has much greater value than the coin. But in case a very expensive piece of jewellery is lost in a less expensive washing machine of a laundry its recovery, then, requires damage to the machine; the same will be effected to recover the piece of jewellery that is more expensive than the machine."

In all such cases where the choice is between two harmful alternatives the one fraught with less harm may be chosen.

(d) The rule in the case of conflict between a particular harm and a general harm is that

The Sharia is inclined to allow free market operation and, under normal conditions, is disinclined to price-regulation. But in case traders manipulate the market and reap exorbitant profits in a manner that the interest of the consumers, i.e., the general public, is seriously jeopardized the government action is justified in regulating prices or profits to protect the interests of the consumers. This is so because protecting public interests is more important than securing traders' interests. By doing so, the government will be preventing the general harm by tolerating a particular harm.

It is this rule of lesser evil that guides a choice among alternative uses of economic resources. The question of theory needs to be decided by competent experts who should be guided by objective rather than subjective factors in their judgment.

It is this rule which guides inquiry into population planning, nationalization, price control and rationing, ceiling on using land for farming, interlocking of directors of business fines and a large number of similar economic issues and policies.

In addition, there is another rule which contains the same spirit but is laid down in different words. It reads as "The lesser of two evils is to be chosen"

Thus fiscal and monetary restrictions on incomes and borrowing are undesirable, but inflationary pressure caused by monetary expansion is all the more undesirable.

Ordinarily, it is not justifiable for the government to compel someone to sell, but it is all the more unjustifiable for the seller to hoard food grain.

Price controls are generally undesirable but exploitation of the general public by making excessive profits on necessities like bread, milk, and medicines is much more undesirable.

In the Prophet's (peace be upon him) time middlemen used to purchase articles from suppliers before they reach the towns-market. This had adversely influenced free market operation and proved to be detrimental to the interest of bonafide sellers and consumers. With a view to protecting the interest of both groups the holy Prophet (peace be upon him) is reported to have disallowed the middlemen to bargain with visiting village suppliers before they reached the market.

Thus the rule of choosing lesser evil gives the government wide powers to impose restrictions and controls on traders and members of other professions, and to regulate ownership and consumption.

In all the above cases the occurrence of harm is real and calculable. There may be harm which has imaginary existence and has remote probability of occurrence. Such is not to be considered as a valid ground of policy choice as the rule is that there is "no reliance on mere imagination".

Hence production of grape or barley may not be banned simply on the presumption that it may lead traders to manufacture wine or beer.

The sale of molasses may not be banned for fear of its misuse by some manufacturers.

(4) The Rules of Relaxation:

The Quranic policy is:

Allah desireth for you ease: He desireth not hardship for you. (2:185)

We hath chosen you and hath not laid upon you in religion any hardship. (22:78)

The Prophet (peace be on him) is also reported to have insisted on the same point on a number of occasions. (33) This is one of the most misinterpreted and most misused rules for want of clarification. Hardship for physical persons as hinted in the Quran has been defined by jurists as a situation in which acting upon an injunction of the Sharia causes loss of life or limb or leads one to performance of a prohibited act. Islam insists that one should earn by lawful means alone and should only consume what is permissible. These restrictions may sometime lead a person to die of starvation for want of a lawful earning or availability of a permissible esculent. When a person is placed in such dire circumstances the Islamic law permits the use of an unlawful item.

Muslims are prohibited from shedding the blood of their brethren. Thus if an aggressor on dar-al-Islam deploys Muslim soldiers on the front line. Islamic law considers it permissible to disregard the presence of Muslims in the front line of the enemy in repelling the attack even though that would entail the killing of innocent Muslims which, as a rule, is absolutely prohibited. In both cases the primary objective of the Sharia is the protection of Muslims and the defence of dar-al-Islam. Thus the obstacle that confronts the achievement of this primary objective will have to be overcome by relaxing the two conditions.

There are cases in which the Quran andlor the Hadith have outlined the nature of hardship which forms the basis/cause of relief. In such cases no other hardship is taken into account for claiming similar or further relief. There are, however. situations where the Quran and the Hadith have not laid down the hardship which calls for relief or relaxation while acting upon some injunctions. It is here that experts of high calibre may determine whether this really deserves relief. An important point that needs to be emphasized here is that the object of providing relief in case of a hardship consists of facilitating a more efficient achievement of the objective of the Sharta. This provision of relief is motivated by the spirit of compliance rather than escapance.

Similarly, there are situations in which the Quran or the Hadith grant a relaxation in principle. In such cases the relief is restricted to those laid down in the text and only to that extent, but no further.

It is prohibited to sell the fruits on the tree before they come to maturity.

It is also prohibited to sell food grain for the same quantity and specie of food grain for delivery in future. Moreover, the quantity sold should be determinable and not conjectural.(35)' The Hadith relaxes this principle to the extent of 5 wasqs in the case of date and grape for those cultivators who need them but they have to wait long for their own produce. Those cultivators are allowed to sell conjecturally a quantity of their expected fresh produce for a quantity of dry produce available promptly.

The relaxation so granted cannot be further expanded in items quantity or in situation. Similarly a contract to sell a commodity which one does not possess at the time of making the sale contract is not lawful. Bay' Salam which technically means prompt payment for a commodity that the seller does not possess is permissible in the case of producers who need finance for inputs. If finance is not forthcoming at the time of sowing, production will cease which will be harmful for the entire community. To ensure productive activity is not hampered the cultivator is allowed to sell his expected produce against advance payment. In this particular case, however, the Prophet (peace be upon him) made a relaxation in the law of sale of goods. Thus the relaxation in the principle of "sale before possession" will remain confined to Bay' Salam only and cannot be used in other sale transactions.

In contracts of hire and commission one party agrees to pay for a benefit (hire) or a part of the proceeds (commission) which does not exist at the time of making the contract. In principle this absence of the consideration should have nullified the contract but it was the rule of universal need that such contracts were permitted.

While elaborating this application, early scholars have cited a number of examples applicable to economic life:

Hardship may be faced because of compulsion, distress and universal affliction (umum bahva), physical handicap, ignorance, forgetfulness, sickness and journey. The relaxations that are granted in many of these situations take a variety of forms, for example:

1. Relaxation (Suqut). The Quran prescribes eight different heads of expenditure of Zakat proceeds (9:60). In view of practical difficulties that an Islamic state would face in allocating Zakat proceeds among all the heads together it has been made optional to set priorities and neglect some of the heads. It is because of this factor or hardship that Hanafites absolve the sahib mal (owner of wealth) from paying Zakat if his Zakatable property is destroyed.

   The doctors who are in favor of levying Zakat on all the items of land-produce exempt vegetable produce from the levy. The probable reason is the hardship in their prompt distribution among the beneficiaries in a wholesome condition because they are perishable and cannot generally be stored. Moreover, there is also hardship in managing daily collection of Zakat on a large number of items of vegetables which are picked up every day.

   A contract of sale must precisely specify the quality and the nature of merchandise on sale; failing, the contract would be treated as void. Yet, there are certain commodities whose quality cannot be ensured without damaging them. Pomegranate or uncooked egg, for example. cannot normally be sold without skin. Removing the skin would be a damaging exposure. It is in such cases that the rule of precisely defining the content of merchandise will be relaxed.

2. Decrease (tangis). The Quran ordains Muslims to fulfill their promises / contracts (5:1; 17:34; 23:8). This does not accept nullification even though the conditions laid down become impracticable or injurious to either or both the parties. It is i view of this hardship that a large number of commercial contracts have been made revokable (aqd a, hayr lazim).The rate of levy of Sadaqa on land produce is 10% (Ushr). In view of hardship that a farmer has to face in irrigating his land as compared with rain-irrigated lands, the Prophet (peace be upon him) has reduced the rate of levy irrigated produce to 5%.

3. Advancing (taqdim). Sadaqa or Zakat is due on the completion of a full year or on harvest. In case the government is in desperate need for Zakat funds it may request the payer to pay the same in advance of its becoming due. Advance payment of price in the case of bay salam and bay istisna are also examples with the object of meeting the need of the cultivator or craftsman.

4. Postponement (Ta'khir). A debtor is morally bound to settle his debt on or before the stipulated date. Default in timely discharge is not only sinful but also exposes the debtor to legal action. But there may be situations in which he is unable to pay the loan. This will require for deferment to a future date lest he should commit a sin by refusing to pay the loan.

5. Permission (tarkhis). The Quran prohibits consumption of wine, pork, and carrion. But in case water is not available one is allowed to use wine for swallowing down if he fears death from choke-throat. The reason is protection of one's life from sure death.

Similarly a man who is dying of starvation for want of permissible food is permitted to use carrion or pork in a quantity required just to save his life.

It should be noted that permission to act on this basis is restricted by time and extent in the sense that this permission is purely temporary and the quantity consumed or act rendered should be the barest minimum sufficient to save one from death or irreparable damage. This qualification is applicable in the case of permission for all unlawful items and acts. The restriction is explained by the Quran in the following words:

"But he who is driven by necessity, neither craving nor transgressing, it is no sin for him. Lo; Allah is Forgiving, Merciful. (2:173)"