Maqasid Shari’ah: Introduction to correct understanding of Blocking the means (sadd al-dharai) principle & the permissibility of women driving cars

[Q]. Could you explain to us the principle of blocking the means with some examples from the Scholars of the salaf?

[A]. Sadd, literally means to block and dharai’ connotes means to an end. Thus sadd al-dharai’ means ‘’blocking the lawful means to an unlawful end’’. [Niyazi: 248]

Most scholars, in principle, agree that the principle of sadd al-dharai is a source of Islamic Legislation except some such as Imam Ibn Hazm, but it was the Maliki School that gave it more importance and credence. This may be due to the fact that the Maliki School recognise the principle of maslaha as an independent source of legislation and the aim of the principle of sadd al-dharai is predicated upon procuring benefit and warding off harm.

As with all other principles or sources of legislation in Islamic Law there are some clear and explicit examples  found in the Qur’an and Sunnah that the scholars cite for the validity of this principle:

Qur’an -

Allah’s saying, ‘And do not revile those who call upon other than Allah in case they revile Allah out of spite and ignorance’ [al-An’am: 108]

The expected result of insulting or abusing those who call upon other than Allah is that they will in turn abuse and revile Allah and hence this action is prohibited.

Allah’s saying, ‘and let them not strike [stamp] their [women] feet [on the ground] so as to make known what they conceal of their adornments’ [al-Nur: 31].

The expected result of a woman striking her feet on the ground while adorning herself with something [anklets as was done in the Jahiliyyah days] that will cause eyes of foreign men to turn is prohibited since this will most certainly lead to fitnah. In addition, women are also forbidden to wear perfume out doors in case foreign men are enticed by their fragrance.

Sunnah –

Narrated by Abdullah bin ‘Amr: Allah’s Apostle said. “It is one of the greatest sins that a man should curse his parents.” It was asked, “O Allah’s Apostle! How does a man curse his parents?” The Prophet said, “‘The man abuses the father of another man and the latter abuses the father of the former and abuses his mother.” [Bukhari]

The expected result of one insulting the parents of another is that in turn his parents will be reviled and insulted and hence this action is prohibited.

Imam ibn al Qayyim in ‘Ilam cited 99 cases which validates this principle. There are few scholars, most evidently Imam Ibn Hazm [ in al-Ihkam], who are ardent deniers of this principle. Ibn Hazm predicates his argument of denying the validity of sadd al-dharai on the foundations that it is based upon ray’, and since he is known to be an enemy of ray’ and in addition someone who takes the dhahir [literal] meaning of the text as opposed to looking at the maqasid of the texts, its quite understable that he denies this principle.

The opposite of sadd al-dharai’, which is fath al-dharai’ [opening the means] or ‘’permitting the unlawful means to a lawful end’’ is also used by scholars to achieve benefit and prevent harm. [Niyazi: 48]

Scholars cite few examples in support for fath al-dharai’:

1- It is permissible to pay money to the non Muslim combatant enemy as ransom for the Muslim prisoners. The original ruling of giving money to the enemy is unlawful since this will strengthen the enemy, however in this case it is allowed since you are freeing a Muslim from enslavement and also strengthening the Muslim army.

2- It is allowed paying a bribe to a person to prevent oppression or harm upon oneself. This is only permissible if one is unable to defend oneself or to prevent a great harm from taking place.

3- It is permissible for the Muslim state to pay money to the enemy state so as to prevent the latter from causing harm to the Muslim community. This is only permitted as long as the Muslim state is unable to defend itself.

4- It is permissible to pay the high way robbers who prevent the Pilgrims to make their way to the house of Allah.

The aforementioned examples are taken from Dr Wahba Zuhaily’s Usul al Fiqh al Islami, 2/906.

For further reading on this principle in English, one may refer to the following excellent books:

1- Islamic Jurisprudence by Dr Imran Ahsan Niyazi

2- Principles of Islamic Jurisprudence by Dr M.Hashim Kamali

3- Imam Shatibi’s theory of Maqasid Shari’ah by Dr Ahmad Raysuni

4- Maqasid Shari’ah by Imam ibn Ashur

Below is an excerpt from Dr Jasser Auda’s book, ‘Maqasid Shari’ah: A beginners guide’ for further reading and examples of how this principle can be misused and misapplied.

‘Blocking the means in the Islamic law entails forbidding, or blocking, a lawful action because it could be a means that lead to unlawful action. Jurists from various schools of Islamic law agreed that in such case leading to unlawful actions should be more probable then not, but they differed over how to systemise the comparison of probabilities. Jurists divided probability of unlawful actions into four different levels.

Probability of unlawful/harmful results cause by lawful means

↓ ↓ ↓ ↓

Certain

Most probable

probable

rare

The following are examples that jurists mentioned to illustrate the above categories:

1) A classic example of an action that results in certain harm is digging a well on a public well which will certainly harm people. Jurists agree to block the means in such case, but had a difference of opinion over whether the well digger, in this example, would be liable for any harm that would happen to people because of his/her action. The difference of opinion is actually over whether prohibiting such action entails making people liable for the resulting damage if they carry that action or, not.

2) An example of an action that results in a rare harm, according to al-Shatibi, is selling grapes, even though a small number of people will use them to make wine. Blocking the means does not apply to such action, jurists agree, since the benefit of the action is more than the harm, which happens in rare cases in any case.

3) Harm is most probable, jurists argued, when weapons are sold during civil unrest or grapes are sold to a wine maker. The schools of Malikis and Hanbalis agreed to block these means, while others disagreed because, as they argued, harm has to be certain to justify blocking its means.

4) Harm is probable some jurists claimed, when a women travels by herself, and when people use legally correct contracts with hidden tricks as means to usury. Again, Malikis and Hanbalis agreed to block these means, while others disagreed because the harm is not certain or most probable.

The above classical examples show that, again, means and ends are subject to variations in economic, political, socail, and environmental circumstances and not constant rules. A women travelling by herself, the selling of weapons, or selling of grapes could lead to probable harm in some situations, but could definitely be harmless or even beneficial for people in other situations. Therefore, it is inaccurate to classify actions according to probability of herm in hard catogories, as shown above.

Ethically speaking, blocking the means is a consequentialist approach. It could be useful in some situations, but could also be misused pessimistic jurists or politically motivated authorities. Today, blocking the means a recurring theme in current neo-literalist approaches, which is utilised by some authoritarian regimes for their own ends, especially on the areas of law related to women.

For example, in the name of blocking the means, women are prohibited from driving cars, travelling alone, working in radio or television stations, serving as representatives, and even walking in the middle of the road. To illustrate one such misapplication of blocking the means, the following is a fatwa, which I find rather amusing! It was issued by the Saudi high council of fatwa regarding women driving cars.

(Question): Under circumstances of necessity, is it permissible for a woman to drive an automobile by herself, without the presence of a legal guardian, instead of riding in a car with a non mahram man?

(Fatwa): It is impermissible for women to drive a automobile, for that will entail unveiling her face or part of it. Additionally, if her automobile were to break down on the road, if she were in an accident or if she were issued a traffic violation she would be forced to co-mingle with men. Furthermore, driving would enable a woman to travel far from her home and away from the supervision of her legal guardian.

Women are weak and prone to succumb to their emotions and to immoral inclinations. If they are allowed to drive, then they will be freed from appropriate oversight, supervision, and from the authority of the men of their households. Also, to receive driving privileges they would have apply for a license and get their picture taken. Photographing women, even in this situation, is prohibited because it entails fitna and great perils!!

Some Malikis proposed opening the means in addition to blocking them. Al-Qarafi divided rulings into means and ends/purposes and suggested that means that lead prohibited ends should be blocked, and means that lead to lawful ends should be open. Thus , Al-Qarafi linked the ranking of means to the ranking of their ends, and suggested three levels for ends, namely , most repugnant , best, and in between. Ibn-Farhun (died.769 AH), also from the Maliki school, applied Al-Qarafi’s opening the means to a number of rulings.

Most repugnant end: forbidden means

Ends ‘in between’ lawful means

Best ends: obligatory means

Levels of ends and alternative of means, according to al-Qarafi.

Thus Malikis do not restrict themselves to the negative side of consequentialist ethics, to borrow a term from moral philosophy. They expand this method of thinking to the positive side of it, which entails opening means to achieving good ends even if these ends were not mentioned in specific scripture. And in order to give Al-Qarafi’s maqasid-based expansion of blocking the means more flexibility, the following chart suggests a continuous measure of goodness and repugnance of ends, to use Al-Qarafi’s expressions. Neutral ends, then, would entail lawful means’.

Level of repugnance                       Neutral means Level of goodness of the ends of the ends Level of prohibition Lawful means Level of requirement of the means                                                                                      of the means

Taken from Dr Jasser Auda’s Maqasid al-Shari’ah, A Beginners Guide P. 40-43 [IIT]