13- The Fiqh of Balances and Preference in the Quran: Dr. Ihssan Baadarani

We say: “He weighed the words,” meaning he evaluated them. And we say: “He weighed the opinion,” meaning it was sound. The most weighty statement: the strongest and most effective. We say: “He balanced between the two matters,” meaning he compared them to know which one is more favorable. And we say: “The opinion prevailed with him,” meaning it dominated over the others.

Preference: Favoring one opinion over another.
Preference: Favoring and it is only based on what strengthens it and it has three types:

1. Preference between benefits and harms: when both are present together, so that we know when to prefer averting harm over obtaining benefit, and when harm is tolerated for the sake of benefit in terms of quantity, quality, distance, and time.
2. Preference between harms and harms: in terms of their quantity and quality, their distance and impact, their permanence and time, and which one should be prioritized, postponed, accepted, or opposed to prevent it. And if harm must be committed, then which is less damaging, lighter to bear, the specific harm is tolerated to prevent the general harm, the lesser harm is endured to remove the greater harm, and so on.
3. Preference between benefits and benefits: based on the aforementioned criteria, and which one is to be nullified or relied upon, which one is to be pursued and selected first, and which one is to be expedited or postponed.

The higher benefit is prioritized over the lower benefit, and the private benefit is forfeited and compensated for the sake of the public benefit. The temporary benefit is not considered in the face of the permanent benefit, the benefit that focuses on substance outweighs the benefit that focuses on form and appearance, the benefit that is closer to certainty is favored over the benefit that is closer to doubt and suspicion, the benefit that is nearer in terms of time is prioritized over the benefit that is far off, and the real benefit is favored over the imagined benefit.

Here are some examples from the Holy Quran:

Preference between harms and harms:
a. Allah says: “They ask you about the sacred month – about fighting therein. Say, ‘Fighting therein is great [sin], but averting [people] from the way of Allah and disbelief in Him and [preventing access to] al-Masjid al-Haram and the expulsion of its people therefrom are greater [evil] in the sight of Allah. And fitnah is greater than killing.’ And they will continue to fight you until they turn you back from your religion if they are able.” [Al-Baqarah: 217].
b. Allah says: “As for the ship, it belonged to poor people working at sea. So I intended to damage it, for there was after them a king who seized every [good] ship by force.” [Al-Kahf: 79].

Preference between moral and material benefits:
Allah says: “It is not for a prophet to have captives [of war] until he inflicts a massacre [upon Allah’s enemies] in the land. You desire the commodities of this world, but Allah desires [for you] the Hereafter. And Allah is Exalted in Might and Wise.” [Al-Anfal: 67].

Preference between harms and benefits:
Allah says: “They ask you about wine and gambling. Say, ‘In them is great sin and [yet, some] benefit for people. But their sin is greater than their benefit.'” [Al-Baqarah: 219].

The absence of understanding the jurisprudence of prioritization and weighing options closes many doors of ease, flexibility, and mercy for us in the most difficult times and crises, on the level of individuals, communities, the nation, and humanity, across the present and the future, and on the scale of the homeland, region, and world. What is essential for the fulfillment of the affairs of Muslims is obligatory, and what is necessary for the fulfillment of a duty is also obligatory, otherwise, it is a confirmed Sunnah, recommended, permissible, or…

We begin this study by seeking help from Allah, the Almighty:

The actions that humans intend to undertake cannot be judged as lawful or unlawful until the consequences of these actions are considered. This is known as the jurisprudence of prioritization and weighing options, which involves examining the outcomes of actions. If the result of the action indicates a predominance of benefit, the action remains lawful. If the result shows a predominance of harm over benefit, the action is deemed unlawful. If the predominance of benefit and harm is equal, then the action is considered permissible. This is the view of scholars of Islamic jurisprudence.

Imam Al-Shatibi says: “There is no pure benefit or pure harm in the world; the aim of the lawgiver is what predominates.”

Thus, if human actions lead to what contradicts the intention of the wise lawgiver, they become unlawful. The principle of weighing options in rulings is clearly illustrated in the narration by Al-Nu’man ibn Bashir, who reported that the Prophet Muhammad ﷺ said: “The example of the person abiding by Allah’s orders and restrictions in comparison to those who violate them is like the example of those who drew lots for their seats in a boat. Some of them got seats in the upper part, and some in the lower part. When those in the lower part needed water, they had to go up to bring water (and that troubled the others), so they said, ‘Let us make a hole in our part of the ship and save those above us from troubling them.’ If the people in the upper part left the others to do what they had suggested, all the people of the ship would be destroyed, but if they prevented them, both parties would be safe.” [Bukhari in his Sahih].

This statement by the Messenger of Allah ﷺ sheds significant light on how rulings in Sharia (Islamic law) are formulated (which is one of its primary objectives). By considering the consequences of the action (the result of the action), if those in the lower part of the boat wanted to make a hole to avoid troubling those above, the predominance of harm over benefit becomes clear. Therefore, the Prophet ﷺ said: “If they prevented them, they would all be safe.” What was lawful for those in the lower part of the boat became unlawful and prohibited because the harm outweighs the benefit here. This is what is known as the jurisprudence of prioritization and weighing options.

This statement leads us to many pieces of evidence and examples in the Holy Quran that clarify the jurisprudence of prioritization and weighing options, which is an objective of the wise lawgiver, the Almighty.

As in the verse: “And do not insult those they invoke other than Allah, lest they insult Allah in enmity without knowledge. Thus We have made pleasing to every community their deeds. Then to their Lord is their return, and He will inform them about what they used to do” [Al-An’am: 108].

Before we delve into the jurisprudence of prioritization and weighing options in this verse, through what some noble Companions narrated about the temporal, spatial, personal, and communal occasions in which the previous Quranic verse was revealed, explaining a ruling therein, we pause at the prohibitive phrase “And do not” in His saying: “And do not insult those they invoke other than Allah” and its implication of obligation in refusing insult as such, and its call to the principle stemming from the values that the Quranic text adopts in building human personality based on respecting what the other adopts in intellectual and doctrinal matters.

Before we refer to the reports of the noble Companions regarding this text, we say: prohibition is the second pillar upon which the Quranic verses are based, namely: command and prohibition. Allah established them in His saying: “And whatever the Messenger has given you – take; and what he has forbidden you – refrain from” [Al-Hashr: 7]. And in His saying: “Indeed, Allah commands justice, benevolence, and giving to relatives and forbids immorality, wrongdoing, and transgression. He admonishes you that perhaps you will be reminded” [An-Nahl: 90]. The head of the command is the command to worship the One and Only Allah, as He says: “They have taken their scholars and monks as lords besides Allah” [At-Tawbah: 31]. And the head of the prohibition is the prohibition of idol worship, as He says: “That [is so]. And whoever honors the sacred ordinances of Allah – it is best for him in the sight of his Lord. And permitted to you are the grazing livestock, except what is recited to you. So avoid the uncleanliness of idols” [Al-Hajj: 30]. Prohibition is the second organizer of human behavior and values in the Quran.

Let’s consider, for example, some prohibitions:

• His saying: “Do not make with Allah another deity and [thus] become censured and forsaken” [Al-Isra: 22], which is the prohibition of associating partners with Allah (shirk).
• His saying: “And do not stretch [your hand] out to its utmost reach and [thereby] become blamed and insolvent” [Al-Isra: 29], which is the prohibition of both miserliness and extravagance.
• His saying: “And do not kill your children for fear of poverty” [Al-Isra: 31], which is the prohibition of killing children, noting that selling children, abandoning them on the streets, or neglecting and depriving them of care and attention falls under the title of killing.
• His saying: “And do not approach unlawful sexual intercourse. Indeed, it is ever an immorality and is evil as a way” [Al-Isra: 32], which is the prohibition of prioritizing forbidden desires in sexual relations that lead to the corruption of society.
• His saying: “And do not kill the soul which Allah has forbidden, except by right” [Al-Isra: 33], which is the prohibition of killing any soul except by right, noting that this prohibition is not limited to human beings, as animals and plants are included under the broad perspective of the verse.
• His saying: “O you who have believed, do not put [yourselves] before Allah and His Messenger” [Al-Hujurat: 1], which is the prohibition of prioritizing the words of any human over the words of Allah and His Messenger.
• His saying: “O you who have believed, do not raise your voices above the voice of the Prophet” [Al-Hujurat: 2], which is the prohibition of raising one’s voice above that of the Prophet.
• His saying: “O you who have believed, avoid much [negative] assumption. Indeed, some assumption is sin. And do not spy or backbite each other” [Al-Hujurat: 12], which is the prohibition of spying and backbiting, akin to eating the flesh of one’s dead brother, which is detested. This prohibition also includes a call to piety, which is the essence of worship and the pinnacle of values.

After this digression, we return to the Quranic verse: “And do not insult those they invoke other than Allah, lest they insult Allah in enmity without knowledge. Thus We have made pleasing to every community their deeds. Then to their Lord is their return, and He will inform them about what they used to do” [Al-An’am: 108].

Qatadah narrated that the Muslims used to insult the idols and gods of the polytheists (disbelievers), and in return, the polytheists would insult Allah—because the polytheists were ignorant people who had no knowledge of Allah. Thus, Allah forbade this behavior. Ibn Abbas said that the polytheists said: “O Muhammad, either you stop insulting our gods, or we will insult your Lord.” Then Allah revealed the verse: “And do not insult those they invoke other than Allah.” Therefore, the Prophet ﷺ forbade this practice according to Allah’s command in the previous verse. The benefit resulting from insulting the idols and deities does not align with the harm that such actions lead to.

Abdullah bin Amr bin Al-As reported that the Messenger of Allah ﷺ said: “Among the major sins is a man insulting his own parents.” The people asked, “O Messenger of Allah, how does a man insult his own parents?” He said: “He insults another man’s father, and then the other man insults his father, and he insults his mother, and then the other man insults his mother.”

As in His saying: “… But if one fears from the bequeather [some] error or sin and corrects that which is between them, there is no sin upon him. Indeed, Allah is Forgiving and Merciful” [An-Nisa: 12].

Before discussing what this verse contains, we must first define the term “will” and explain its meaning and implications. So, we say:

Linguistically, a will (وصية) is something that is bequeathed, and its plural is “wasaaya” (وصايا).
We say: “He bequeathed it to him, for him, with something,” meaning he made it for him.
Legally, a will is the transfer of ownership that is effective after death.
In terms of meaning and implication, a will signifies human communication and social interconnectedness.

Here are the translations of the verses where the term “will” (الوصية) is mentioned:

1. Surah Al-Baqarah, 2:180:
   “Prescribed for you when death approaches [any] one of you if he leaves wealth [is that he should make] a bequest for the parents and near relatives according to what is acceptable – a duty upon the righteous.”
2. Surah Al-Baqarah, 2:234:
   “And those who are taken in death among you and leave wives behind – they, [the wives, shall] wait four months and ten [days]. And when they have fulfilled their term, then there is no blame upon you for what they do with themselves in an acceptable manner. And Allah is [fully] Acquainted with what you do.”
3. Surah Al-Baqarah, 2:240:
   “And those of you who die and leave wives behind – for their wives is a bequest: maintenance for one year without turning [them] out.”
4. Surah Al-Baqarah, 2:182:
   “But whoever fears from the bequeather [some] error or sin and corrects that which is between them – there is no sin upon him. Indeed, Allah is Forgiving and Merciful.”
5. Surah Al-Baqarah, 2:62:
   “Indeed, those who believed and those who were Jews or Christians or Sabeans [before Prophet Muhammad] – those [among them] who believed in Allah and the Last Day and did righteousness – will have their reward with their Lord, and no fear will there be concerning them, nor will they grieve.”

These verses highlight various aspects of bequeathing and the responsibilities associated with it in Islamic law.

And His saying, exalted is He: “O you who have believed, testimony [should be taken] among you when death approaches one of you at the time of bequest – [that of] two just men from among you or two others from outside if you are traveling through the land and the disaster of death should strike you. Detain them after the prayer and let them both swear by Allah if you doubt [their testimony, saying], ‘We will not exchange our oath for a price, even if he should be a near relative, and we will not withhold the testimony of Allah. Indeed, we would then be of the sinful.'” [Surah Al-Ma’idah, 5:106]

As for the reports mentioning the term “bequest” (الوصية), they are narrated from Ibn ‘Umar, Jabir, and Abu Hurairah (may Allah be pleased with them). Ibn ‘Umar said: “Not a night has passed since I heard the Messenger of Allah (ﷺ) say this except that I have my will with me.”

Regarding the legality of bequest, it is permissible for the testator to change it, cancel parts of it, or cancel the entire will during their lifetime. The beneficiary becomes entitled to the bequest after the death of the testator and the settlement of debts. If the debts exceed the estate, the beneficiary is not entitled to anything. A conditional bequest is valid unless the condition is prohibited or contradicts the objectives of Islamic law.

There are conditions for the testator, the beneficiary, and the person appointed in the will that must be met for the bequest to be valid, as mentioned in its provisions. A bequest is a gift from a person, whether tangible, financial, or beneficial, to another person after their death.

Its legitimacy is established by the Sunnah, as narrated by Abdullah bin ‘Umar from the Messenger of Allah (ﷺ) who said: “It is not permissible for a Muslim who has something to will to stay for two nights without having his will written down with him.”

Abu Hurairah narrated from the Messenger of Allah (ﷺ) who said: “A man may do the deeds of the people of Paradise for sixty years, then when there is only a cubit’s length between him and it, the decree of destiny overtakes him and he does the deeds of the people of Hell and thus enters it.” Then Abu Hurairah recited: “But whoever fears from a testator [some] error or sin and corrects that which is between them – there is no sin upon him. Indeed, Allah is Forgiving and Merciful.” [Surah An-Nisa, 4:12]

As for the ruling on bequest, the early scholars and jurists say that its ruling varies according to the circumstances, depending on the nature of the prevailing conditions of time and place. It may be obligatory, recommended, disliked at times, or prohibited at others, and it may also be void in certain cases.

It becomes obligatory: When a person has a legal right that they fear may be lost if not bequeathed, such as an unpaid trust without witnesses, unpaid zakat, unperformed hajj, or a debt owed to someone unknown to others.

It becomes recommended: For voluntary acts of worship and optional charities.

It becomes disliked: If the heirs are in need of it.

It becomes prohibited: If it harms the heirs and exceeds one third, unless the heirs consent to it.

As for being void: It is not valid for an heir (considered void by some and permissible by others, each with their own arguments and evidence from the Quran).

Disposing of one-third of the wealth is a legitimate right. However, if the testator intends to harm the heirs during their lifetime, it becomes illegitimate according to some scholars and a group of jurists. This principle is prioritized in the Hanbali school, and is also narrated from Imam Malik and the interpretation of later scholars such as Ash-Shatibi (who follows the Maliki school), Ibn Taymiyyah, and Ibn al-Qayyim (both of whom are Hanbali scholars).

It becomes obligatory: When a person has a legal right that they fear may be lost if not bequeathed, such as an unpaid trust without witnesses, unpaid zakat, unperformed hajj, or a debt owed to someone unknown to others.

It becomes recommended: For voluntary acts of worship and optional charities.

It becomes disliked: If the heirs are in need of it.

It becomes prohibited: If it harms the heirs and exceeds one third, unless the heirs consent to it.

As for being void: It is not valid for an heir (considered void by some and permissible by others, each with their own arguments and evidence from the Quran).

Disposing of one-third of the wealth is a legitimate right. However, if the testator intends to harm the heirs during their lifetime, it becomes illegitimate according to some scholars and a group of jurists. This principle is prioritized in the Hanbali school, and is also narrated from Imam Malik and the interpretation of later scholars such as Ash-Shatibi (who follows the Maliki school), Ibn Taymiyyah, and Ibn al-Qayyim (both of whom are Hanbali scholars).

Regarding reports, Abu Umamah said: I heard the Messenger of Allah (ﷺ) say in his sermon during the Farewell Pilgrimage: “Allah has given each person their due right, so there is no bequest for an heir.” We have a statement regarding bequest for an heir that can be referred to under the title: “Restriction on the Expansion in the Place and Concept of Abrogation in Bequest.”

Regarding reports, Abu Umamah said: I heard the Messenger of Allah (ﷺ) say in his sermon during the Farewell Pilgrimage: “Allah has given each person their due right, so there is no bequest for an heir.” We have a statement regarding bequest for an heir that can be referred to under the title: “Restriction on the Expansion in the Place and Concept of Abrogation in Bequest.”

And in the narration from Sa`d ibn Abi Waqqas, he said: “I fell severely ill during the Year of the Conquest, a sickness that brought me close to death. The Messenger of Allah (ﷺ) came to visit me, and I said, ‘O Messenger of Allah, shall I bequeath all my wealth?’ He said, ‘No.’ I said, ‘Then shall I bequeath two-thirds of my wealth?’ He said, ‘No.’ I said, ‘Then half or a third?’ He said, ‘A third, and a third is plenty. Indeed, to leave your heirs wealthy is better than to leave them dependent, begging from people. And you will not spend any sum seeking the face of Allah, except that you will be rewarded for it, even the morsel that you put into your wife’s mouth.'” [Agreed upon]

Ibn Abbas said regarding bequests: “Causing harm through bequests is among the major sins, due to the saying of the Messenger of Allah (ﷺ): ‘There should be no harming or reciprocating harm.'” In this narration, we observe the negation of harm, even that which is assumed. Harm and reciprocating harm are opposed to benefit, encompassing anything disliked or harmful that befalls or is inflicted upon a person, and scholars differ in the meanings and implications of these two terms.

We conclude by stating: The verse on bequests in Surah An-Nisa, verse 12, and others clarify that if a bequest leads to harm for the other heirs, it becomes illegitimate, following the principle of jurisprudence of balancing and preference.

As in the saying of Allah, “Mothers may breastfeed their children two complete years for whoever wishes to complete the nursing [period]. Upon the father is the mothers’ provision and their clothing according to what is acceptable. No person is charged with more than his capacity. No mother should be harmed through her child, and no father through his child. And upon the [father’s] heir is a duty like that. But if they both desire weaning through mutual consent from both of them and consultation, there is no blame upon them. And if you wish to have your children nursed by a substitute, there is no blame upon you as long as you give payment according to what is acceptable. And fear Allah and know that Allah is Seeing of what you do.” [Surah Al-Baqarah: 233]

This noble verse clarifies that breastfeeding is a natural right that a mother fulfills towards her child with kindness, and it is not permissible to deny this right to her to harm her by forcibly taking her child from her. Imam Al-Qurtubi says: “It is not permissible for the father to prevent the mother from breastfeeding if she desires it, and this is the opinion of the majority of interpreters.”

Breastfeeding, for example, in the Hanafi school, is obligatory upon the mother: “Mothers may breastfeed their children two complete years.” Also, the mother should not refuse breastfeeding except due to incapacity, and she should not be compelled when it turns to her harm, “No mother should be harmed through her child.” Likewise, the mother should not refuse breastfeeding to harm the father, “And no father through his child.” The consideration of the consequences of actions in building judgments is a goal of the wise Sharia, clear without confusion.

As in the saying of Allah in the story of Moses and one of His servants:
“So they set out, until when they had embarked on the ship, al-Khidhr tore it open. [Moses] said, ‘Have you torn it open to drown its people? You have certainly done a grave thing.’ [Al-Khidhr] said, ‘Did I not say that with me you would never be able to have patience?’ [Moses] said, ‘Do not blame me for what I forgot and do not cover me in my matter with difficulty.’ So they set out, until when they met a boy, al-Khidhr killed him. [Moses] said, ‘Have you killed a pure soul for other than [having killed] a soul? You have certainly done a deplorable thing.’ [Al-Khidhr] said, ‘Did I not tell you that with me you would never be able to have patience?’ [Moses] said, ‘If I should ask you about anything after this, then do not keep me in your company. You have obtained from me an excuse.'” [Surah Al-Kahf: 71-78]

We return to reiterate what we said at the beginning of our discussion, stating: “Actions intended by humans cannot be judged as permissible or impermissible except after considering the consequences that result from these actions.” This is what is called (jurisprudence of balancing and preference). The essence of the three matters in the previous noble verses from Surah Al-Kahf clearly demonstrates that when two harms conflict, the lesser harm must be endured to prevent the greater. If the righteous servant had not damaged the ship, its owners would have forcibly taken it and lost its benefits. If he had not killed the boy, his staying would have been a source of corruption for his parents in their religion and worldly affairs. And because the difficulty caused by the erection of the wall is lesser harm than its collapse, as its collapse would have resulted in the loss of wealth for those orphans, indeed, the angels in the three verses are guarding humanity.

In summary, Allah informed that righteous servant among His servants of the subtleties and realities of things within themselves, He says: “So We intended that their Lord should substitute for them better than it in purity and nearer to mercy.” [Surah Al-Kahf: 81]. It is He, glorified be He, who taught him from His knowledge about what his actions would lead to and what their consequences would be, wherein benefit outweighs harm. Just as that servant informed the Prophet of Allah, Moses, peace be upon him, that what he did was not based on his own opinion or impulse but was done by the command of Allah, because diminishing people’s wealth and shedding their blood is not permissible except by clear revelation and definitive text, He says: “And I did it not of my own accord.” [Surah Al-Kahf: 82]. Meaning: What the righteous servant mentioned to Prophet Moses about the reasons for which he did the actions that were criticized, is an explanation of the consequences to which the actions that troubled Moses, peace be upon him, would lead. He did not endure until the righteous servant first informed him of them.

In conclusion, we can say: Indeed, Allah, glorified be He, did not inform that righteous servant of the subtleties and realities of matters and things, except in these cases, which were a cause of astonishment for the Prophet of Allah, Moses, peace be upon him, for reasons whose explanation is now lengthy.