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irsyad usul fiqh 38

Alhamdulillah, praise and thanks to Allah for the countless blessings He has blessed us all with. Blessings and salutations to the Prophet Muhammad PBUH, his wives, his family, companions and all those that follow his teachings to the day of judgement.

Islamic Shari’a is to protect the maslahah of the people, and it is among the highest objective (maqasid) of Shari’ah. To achieve the maqasid, there must be a wasilah (way or medium) needed. Due to this, the scholars had discussed on the ways to achieve the maslahah, and it is under the chapter of sadd al-zari’ah and fath al-zari’ah.

 

Introduction

Zari’ah (ذريعة) or its plural form zarai’e (ذرائع) lexically means a way that leads to something.

There are some scholars who define zari’ah by limiting it only to haram (prohibited) matters. According to Imam al-Syusyawi:

الذريعة في الاصطلاح: وهو التوصل بمباح إلى ما فيه جناح

Al-Zari’ah technically is using halal means to achieve something haram. (Refer Raf’u al-Niqab ‘an Tanqih al-Syihab 6/194)

Imam al-Syatibi interprets it as “something that leads to things which are haram and mafsadah.” (Refer Al-Muwafaqat 4/198)

However, in my opinion, the most accurate opinion is the definition of zari’ah which is more general as stated by Imam Ibn al-Qayyim, in which zari’ah is a method or way to achieve something/ to go to some ways. (Refer Usul al-Fiqh al-Islamiy 2/902)

Sadd al-Zarai’e

Zari’ah lexically means ways that connect someone with something. While technically, Imam al-Qarafi defined sadd al-zari’ah with the meaning of closing the doors or ways which may lead to haram things. (See Anwar al-Buruq fi Anwa’ al-Furuq, 2/33)

The following are the examples of sadd al-zara’ie:

  • The prohibition of promiscuity with the ajnabi to avoid adultery.
  • The prohibition of looking at a non-Mahram woman without any need of doing so.
  • The prohibition of a man asking for a hand of an engaged woman to avoid animosity and hate.
  • The prohibition to ihtikar (monopoly) because it is way to burden others in their staple food.

Sadd al-zarai’e is one of the usul (source of evidence) in the Maliki madhhab. It is stated in a nazham:

وسد أبواب ذرائع الفساد

فمالك له على ذه اعتماد

Closing the doors and ways towards harm (is one of the usul) held onto it by Imam Malik (Refer Isol al-Salik ila Usul Mazhab al-Imam Malik, pg 86)

There are some who are of the opinion that only Maliki madhhab holds on to the usul of sadd al-zara’ie, and this fact is refuted by other madhhabs. However, according to Imam al-Qarafi, the most sahih one is Maliki madhhab are those who hold onto the dalil of sadd al-zara’ie more when compared to other madhhab. (Refer Syarh Tanqih al-Fusul, hlm. 448-449)

Fath al-Zara’ie

Fath al-zara’ie is a terminology mentioned by Imam al-Qarafi al-Hanafi:

اعْلَمْ أَنَّ الذَّرِيعَةَ كَمَا يَجِبُ سَدُّهَا يَجِبُ فَتْحُهَا وَتُكْرَهُ وَتُنْدَبُ وَتُبَاحُ

Know that, indeed, zari’ah (doors lead to haram matters) are wajib to be closed, the same as it is wajib to open, makruh, Sunnah and permissible (according to situation). (Refer Anwar al-Buruq fi Anwa’ Al-Furuq 3/46)

He gave examples:

قَدْ تَكُونُ وَسِيلَةُ الْمُحَرَّمِ غَيْرَ مُحَرَّمَةٍ إذَا أَفَضْت إلَى مَصْلَحَةٍ رَاجِحَةٍ كَدَفْعِ مَالٍ لِرَجُلٍ يَأْكُلُهُ حَرَامًا حَتَّى لَا يَزْنِيَ بِامْرَأَةٍ إذَا عَجَزَ عَنْ دَفْعِهِ عَنْهَا إلَّا بِذَلِكَ

Sometimes, means that lead to haram things do not become haram if it leads to maslahah which is rajih. For example, giving a man some amount of money to eat haram things in order to prevent him from committing adultery with other woman. That is only if one may not prevent the man from committing adultery with the woman except by doing it this way. (Refer Anwar al-Buruq fi Anwa’ Al-Furuq 3/47)

Imam Ibn al-Qayyim upon expanding on the types of wasilah and zari’ah has mentioned one category of wasilah; wasilah which is originally permitted, and the one which also lead to mafsadah, but the maslahah is more rajih than mafsadah in this case. Among the examples given by them are the permissibility of looking to one’s fiancé of whom he intends to marry, speaking the truth in front of oppressive ruler and others; then, Shari’ah cease to exist by permitting, encouraging or obligating these wasilah according to the level of maslahah. (Refer I’lam al-Muwaqqi’in 3/109-110)

In fact, the discussion on fath al-zara’ie is also found in the discussion of maslahah and maqasid syari’ah. According to Imam al-‘Izz ibn Abd al-Salam, the ruling for each wasilah is in accordance with its maqasid/ objectives. Wasilah which leads to the most prioritized purpose is the most prioritized wasilah and vice versa. (Refer Qawa’id al-Ahkam fi Masalih al-Anam 1/53)

International Islamic Fiqh Academy have listed out some examples on fath al-zarai’e (or according to a terminology used is fath abwab al-khair / opening the door of goodness):

  • The permissibility for the ruler to control the price for certain stuffs. Even though the policy may cause harm to the sellers, but there is maslahah which is more rajih, which is to avoid the users to pay for the high price for a certain thing due to monopoly, price speculation and falsehood by the sellers.
  • The permissibility of paying ransom money to the enemy to reclaim prisoners of war. Even though the ransom money may strengthen the enemy and is a mafsadah, but it is able to save the Muslim prisoners of war which is a clear maslahah because this will strengthen the Muslims.
  • The permissibility of digging a well at a route passed by the public seldomly; even though there are possibilities that there will be people who pass by and fall into the well. The possibility of falling into the well is smaller than a more rajih maslahah, which is the benefit of water which will surely be obtained by the people from the well. (Refer Majallah Majma’ al-Fiqh al-Islamiy 9/1557)

Besides, Imam Abu Hanifah gave a temporary permission to the Persians who just embraced Islam to perform prayer by reciting words of prayer in Persian language due to their hardship to pronounce Arabic pronunciation. According to Qadhi Abu Yusuf, those who are able to read al-Quran are still obligated to read the Quran in Arabic language. However, according to the recent scholars of Hanafi madhhab, Imam Abu Hanifah had revoked this opinion, and the mu’tamad opinion in Hanafi madhhab is it is impermissible to read al-Quran in prayer except by using Arabic language. (Refer Tabyin al-Haqa’iq Syarh Kanz al-Daqa’iq 1/110 and al-Binayah Syarh al-Hidayah 2/179)

Almarhum Syeikh Wahbah al-Zuhaily states that the Muslim ummah’s obligation to acquire various types of knowledge and skills in various industries is a form of fath al-zarai’e, in which by knowledge and skills, Muslim ummah may build a better civilization. (Refer Usul al-Fiqh al-Islamiy 2/906)

Conclusion

Consequently, the term fath al-zarai’e means opening the door and practices that may lead to maslahah, even if it still has the possibility of mafsadah. This is as the explanation of Imam al-Qarafi, Imam Ibn al-Qayyimm and Imam al-‘Izz ibn Abd al-Salam.

The above presented examples clearly indicate that the concept of fath al-zarai’e is broad and encompass all sorts of effort towards goodness, and its ruling is by consideration between mafsadah and maslahah as well as the level of maslahah presented.

We also see a close relationship between both terminologies (sadd al-zarai’e and fath al-zarai’e), in which sadd al-zarai’e is preventive which prevents any mafsadah from taking place even if originally, the wasilah is permissible. While fath al-zarai’e is more of an initiative to open the door towards goodness, even if the wasilah may lead to mafsadah, but, due to maslahah consideration, it may still be used towards goodness.

Wallahua’lam.