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Philosophy and Fundamentals of Sharī’ah for Islamic Finance
SHA0011

The maxim is a basic of prohibition of harm-causing action. Islām
requires eliminating any harm before or after it happens. Harm before
occurring can be overcome through preventing action while eliminating
it after taking place can be done through removing its impact and
preventing its recurrence. However, Islām prefer prevention to
remove. The rule shows the care of Sharī’ah teaching to avoid any
causes of damage and remove harm or injury that jeopardises people
in their lives. The prohibition of any harm will create the achievement
of public benefit as an objective of Sharī’ah.
Applications of the Maxim:

a. Driving beyond the stipulated limit on the highway that might
lead to an accident is prohibited in Islam as it will cause harm to
individuals and their property. Similarly a person is obliged to
adhere to the traffic rules and regulations in order to prevent
harm.

b. Based on this maxim, it is permitted to cast into prison for those
who are well-known on doing prostitution and corruption
although there is no defined criminal evidence through the
judicial to avoid their harm actions.

c. If someone sells a defective good to a customer but covers
such defect so that the customer does not realise it. The customer
has the right to return the defective good and takes back his
money as an application of defective option (khiyār ‘aib) in
jurisprudence.

d. If a debtor deliberately avoids paying his debt whereas he is
able to pay, the judge can impose to sell his property to settle
his debt. It is done to avoid harm. In the context of Islamic finance,
Shariah Advisory Council (SAC) of BNM has allowed the imposition
of one percent penalty rate on late payment. This is simply to
protect the Islamic banks and the interest of depositors from
dishonest clients who deliberately avoid the payment. The
compensation is imposed for actual loss suffered by the
Islamic bank

5. Custom is of Force
Basis is the saying of ṣaḥabah namely Ibn Mas’ūd:

“What the Muslims see as good is good in the sight of Allāh SWT.”
(Musnad Ahmad and Mustadrak)

General meaning of the Maxim:

This legal maxim rules that customary practices of a society in terms
of the words and actions are acknowledged and recognised by the
Sharī’ah in the absence of textual injunctions, provided they have
fulfilled the following requirements: