فِقهُ الضَّرَر — مَبدَأُ الضَّرَرِ فِي الفِقهِ الإِسلَامِيّ: كَيفَ تَعمَلُ القَاعِدَةُ النَّبَوِيَّةُ [لَا ضَرَرَ وَلَا ضِرَار] بِوَصفِهَا إِحدَى القَوَاعِدِ الفِقهِيَّةِ الكُبرَى الخَمسِ وَتَطبِيقُهَا عَبرَ قَانُونِ العُقُودِ وَقَانُونِ الأُسرَةِ وَالأَخلَاقِيَّاتِ الطِّبِّيَّةِ وَعَلَاقَتُهَا بِإِطَارِ المَقَاصِد
Fiqh al-Darar (فِقهُ الضَّرَر — Jurisprudence of Harm; *darar*: harm, injury; from *d-r-r*: to harm, be harmful; *dirar*: counter-harm, reciprocal harm, harming in retaliation/reaction; the foundational hadith: 'La darar wa-la dirar' ['No harm and no reciprocal harm'] narrated by Ibn Majah and Ahmad from Ibn Abbas; this hadith is one of the most frequently cited by Islamic legal theorists; the five grand legal maxims [al-qawa'id al-fiqhiyya al-kubra]: all four Sunni schools recognize five grand maxims from which subsidiary rules derive: [1] 'al-umur bi-maqasidiha' [matters are determined by their purposes]; [2] 'al-yaqin la yazulu bil-shakk' [certainty is not removed by doubt]; [3] 'al-mashaqqa tajlib al-taysir' [hardship brings ease]; [4] 'al-darar yuzal' [harm is to be removed]; [5] 'al-'ada muhakkama' [custom is a legal source]; al-darar yuzal [harm is removed]: the grand maxim derived from the 'la darar' hadith; subsidiary rules: [a] 'al-darar la yukhraju bil-darar': harm may not be removed by [inflicting equivalent] harm; [b] 'al-daruriyyat tubih al-mahzurat': necessity makes the prohibited permissible [when harm from abstention exceeds harm from violation]; [c] 'al-darar al-ashadd yuzal bil-darar al-akhaff': the greater harm is removed by the lesser harm; [d] 'dara' al-mafasid muqaddam 'ala jalb al-masalih': preventing harm takes priority over bringing benefit; applications in contract law: [1] khiyar al-'ayb [defect option]: a purchaser may return goods that have defects causing harm; the defect constitutes darar sufficient to void the contract; [2] gharar prohibition: excessive uncertainty in contracts is itself a form of darar — it harms by exposing one party to unknown risk; [3] unconscionable terms: conditions that harm one party without corresponding benefit may be struck down under the darar principle; applications in family law: [1] judicial divorce [khul'/faskh]: a wife may seek judicial dissolution if the husband causes her darar — physical harm, refusal of maintenance, abandonment; the Maliki school is most expansive in recognizing darar grounds; [2] spousal battery: the Quran's [4:34] 'idrib' [strike] verse has been debated extensively; the darar principle is used by many contemporary scholars to argue that physical harm to a spouse is prohibited under la darar regardless of the 4:34 passage's precise meaning; applications in medical ethics: [1] principle of non-maleficence: 'la darar' maps directly onto medical ethics' non-maleficence principle; Islamic medical ethics derives the prohibition of unnecessary harm in medical procedures from this maxim; [2] necessity in medicine: the daruriyya principle permits prohibited acts [eating pork; taking alcohol in medicine] when abstaining would cause greater harm; [3] end-of-life care: the darar principle is central to debates about withholding life-sustaining treatment — is withholding treatment causing darar [harm by omission]? Most jurists: no harm in withdrawing futile treatment; the darar-maslaha connection: the 'preventing harm' side of maslaha [public interest] fiqh corresponds directly to the darar maxim; al-Shatibi's maqasid framework — preserving the five necessities — is partially operationalized through the harm-prevention principle: any law that prevents harm to life, intellect, property, progeny, or religion is supported by the darar maxim) is one of Islamic law's most flexible and far-reaching principles.
La Darar wa-la Dirar
Two words — la darar (no harm) and la dirar (no counter-harm/no harming in retaliation) — constitute one of Islamic law’s most generative principles. The prophetic hadith is brief but the fiqh built on it is vast: entire areas of contract law, family law, and medical ethics organize themselves around the question of whether a given rule, practice, or act causes or prevents harm.
The distinction between darar and dirar is significant. Darar is unprovoked harm. Dirar is harm inflicted in response to harm received — retaliatory injury. The hadith prohibits both: neither initiating harm nor using harm as your instrument for removing harm. This second prohibition is the source of the maxim “harm may not be removed by harm” (al-darar la yukhraju bil-darar).
The Hierarchy of Harms
When two harms conflict — when avoiding one harm requires accepting another — Islamic jurisprudence developed a hierarchy:
- The greater harm is removed by tolerating the lesser harm
- Preventing harm takes priority over bringing benefit
- Necessity makes the prohibited permissible when abstaining would cause greater harm
This hierarchy operates throughout Islamic law: the necessity doctrine (darura) that permits eating prohibited food when starving; the permission to consume alcohol in medicine when lives are at stake; the permission to reveal medical information that would normally be confidential to prevent serious harm to third parties.
Harm and the Maqasid
The darar principle is the harm-prevention face of the maqasid (objectives) framework. Al-Shatibi’s five necessities — preservation of religion, life, intellect, progeny, and property — are partly defined by what harms them. Any act that causes harm to one of the five necessities is presumptively prohibited; any rule that prevents such harm is presumptively obligatory.
See also: Fiqh Al Ahkam Al Khamsah, Fiqh Al Ijtihad Wal Taqlid, Fiqh Al Istislah, Fiqh Al Usul Al Fiqh, Fiqh Al Gharar