Preventing the Means to Wrongdoing

There is a famous principle in Islamic legal theory referred to in Arabic as sadd al-dharâ’i`. The term literally translates as “blocking the means” and refers to legal measures taken to prevent the occurrence of crime and immoral behavior, generally achieved by prohibiting some activity that would otherwise be permitted were it not for it being a means to something wrong.

If we consider carefully the vast number of legal rulings found in the Qur’ân and Sunnah that exist to prevent people from falling into sin, we must admit that the principle of preventing the means to wrongdoing is to be found in the sacred texts.

There are two general axioms in Islamic law that are derived from this principle. The first is that “means take the legal ruling of their objectives”. The second is that “everything that leads to something unlawful is itself unlawful”.

The idea of preventing the means to wrongdoing is a sensible one. This is why we find this principle employed in legal systems throughout the world. It is certainly not exclusive to Islam. In fact, all countries take recourse to this principle in the development of legislation, differing with each other only in the extent to which they apply it.

Considerations of Difficulty and Ease

The idea of preventing the means to wrongdoing is something that all Islamic thinkers agree upon in principle. There are two areas where scholars are in unanimous agreement:

1. If something leads invariably and certainly to that which is expressly unlawful, then that something is unquestionably unlawful as well. Scholars do not differ on this point.

2. Scholars also recognize that many of the things that are prohibited by the sacred texts are prohibited merely because they often lead to something else that is unlawful. An example of this is Islam’s prohibition of an unmarred man and woman being alone together. Even though such privacy does not always lead to unlawful consequences, scholars agree that it is prohibited, because the sacred texts explicitly declare it to be so. They are not, in this case, deriving the ruling from legal principles, but directly from the texts.

The majority of scholars also agree that if something leads to unlawful consequences most of the time, then it should be prohibited, even if it is not explicitly prohibited by the sacred texts.

Outside of these areas of general agreement – in matters where the possibility of unlawful consequences are less certain – scholars differ regarding how to apply the principle of preventing the means to wrongdoing. Scholars differ in their estimation of the possibility of wrongdoing that results from given activity. Then, scholars differ regarding the threshold of possibility for wrongdoing that warrants prohibiting an activity. Some scholars follow the rule that if the activity is likely to result in wrongdoing at least half the time, then that activity should be prohibited. Others see this as insufficient cause to warrant prohibiting an activity.

These decisions fall in the domain of juristic discretion (ijtihâd) where scholars’ perceptions and opinions naturally differ. No qualified scholar should be censured or dealt with harshly in such matters as long as he or she exercised every effort to arrive at the right answer and gave due consideration to the broad objectives of Islamic Law, weighing the pros and cons of the matter to the best of his or her knowledge.

As for activities where the possibility of wrongdoing is weak and where it is ludicrous to regard the activity in question as being bad or dubious – it is clearly wrong to prohibit such activities on the pretext of preventing wrongdoing. A scholar must always consider the general situation. If something does not usually mead to wrongdoing, then it should not be permitted. Preventing such activities is harsh and excessively strict. It is, in fact, an abuse of the legal principle of preventing the means to wrongdoing.

The great classical legal theorist, al-Qarrâfî, writes:

There are matters where scholars unanimously agree that the principle (of preventing the means to wrongdoing) should not be employed. Take, for instance, the cultivation of grapes. It should not be prohibited in order to prevent the manufacture of wine, even though it is definitely an essential means to the production of wine.

The activates that should be prohibited are those that always or usually result in wrongdoing. When an activity does not directly lead to wrongdoing – when there are many other intermediate steps that need to be taken before something wrong is actually committed – then the prohibition of the activity becomes a wrong in itself. It becomes a source of hardship and difficulty for people. Such harshness and strictness is an evil that it is equally important to prevent.

For instance, Islam prohibits the mixing between men and women that often leads to privacy and dubious liaisons. However, it would be wrong to prohibit women from walking on the same roads as men or to frequent the same public places. The prophet (peace be upon him) did not prohibit women and men from passing by each other on the street. He only prohibited them from jostling each other and coming into physical contact. When the Prophet (peace be upon him) saw the men and women all trying to leave the mosque at the same time, he said to he women: “Don’t push your way through, but keep to the sides.” As we can see, he only prohibited jostling and crowding, since that is what could lead some people to temptation. He did not prevent the men and women from walking out at the same time.

Severity in applying this principle is counter-productive. It might reduce the frequency of a certain wrongdoing in the short term, but ultimately, its impracticality causes people to doubt the principle themselves, leading them to react in the opposite way. They not only seek to engage in the sensible acts that were injudiciously prohibited, but they tend to go farther and aspire to activities that are truly harmful and that really do encourage vice.

At the same time, we must recognize that disagreements exist among scholars regarding particular applications of the principle of preventing the means to wrongdoing as well as regarding the extent to which this principle should be applied. Such disagreements do not give us cause to doubt the principle itself. Likewise, scholars have disagreed regarding specific applications of analogous reasoning (qiyâs) in Islamic Law. Such disagreements in application do not cast doubt in the validity of the principle of analogous reasoning or detract anything from the importance to Islamic Law.

Exceptions to the Rule

A distinction is made in Islamic Law between those activities that are prohibited in their own right and those that are prohibited merely because they often lead to other unlawful consequences. Activities that are prohibited in their own right are either always prohibited, or only permitted in cases of dire necessity. By contrast, activities that are prohibited because they are a means to wrongdoing are permitted in cases of genuine need, even when there is no dire necessity for doing so.

Scholars have expressed this distinction as a legal axiom in various ways:

1. “That which is prohibited because it is a means to something else is to be permitted whenever there is an overriding consideration of welfare.” [Ibn Taymiyah, Majmû` al-Fatâwâ (22/298) as well as Ibn al-Qayyim, I`lâm al-Muwaqqi`în (2/142) and Zâd al-Ma`âd (2/242)] 2. “Concessions are made regarding means that are not made regarding that which is prohibited in its own right.” [al-Suyûtî, al-Ashbâh wa al-Nazâ’ir (293)] For example, Ibn Taymiyah writes [Majmû` al-Fatâwâ (23/186)]:

That which is prohibited on account of it being a means to wrongdoing is allowed in consideration of an overriding benefit, like the permissibility of taking a look at a woman before considering marrying her. Looking at a woman is only prohibited because it can lead to sin. Therefore, when looking at a woman results in an overriding benefit, it is no longer regarded as a means to sin.

Elsewhere, he writes [Majmû` al-Fatâwâ (23/214)]:

That which is prohibited in order to block the means to wrongdoing only remains prohibited when it is unnecessary, and not when it is needed to achieve a greater good that can not otherwise be realized. This is why a distinction is made in Contract Law between the question of loopholes and that of preventing the means to wrongdoing. The person seeking a loophole is out to achieve some unlawful purpose. This is why the loophole is prohibited. As for someone resorting to one of the means that can lead to something unlawful, he is not seeking after something unlawful in itself, so such means are prohibited when it is not really needed, but permitted in cases of need.

It should be clear to us that those activities which are prohibited for being means to wrongdoing are to be reassessed when a need arises to resort to those activities by weighing the benefits of doing so against the possibility of harm. Whenever the consideration of benefit outweighs the possibility of harm, then the means is not to be prohibited. Indeed, it becomes permitted in light of the overwhelming good and the lesser likelihood of bad consequences is removed from our consideration.

“Opening the Means” – a Confusing Phrase

The term fath al-dharâ’i` – or “opening the means” – has been adopted as a legal term by some scholars. For instance, al-Qarrâfî writes in Tanqîh al-Fusûl (449):

Just like it is obligatory to prevent means, it is obligatory to permit means – so that they will be regarded rather as disliked, preferred, or permissible…

Ibn `Âshûr writes: “Islamic Law has sought out the means to good and has opened them up.” [Maqâsid al-Sharî`ah (369)]

This idea is, in fact, expressed as a principle of Islamic Law with a different wording, like “anything that is required for carrying out an obligatory act becomes obligatory itself” and “that which is needed to realize a permitted act is itself permitted”.

However, the phrase “opening the means” is not a good term in my opinion, even though some scholars have used it, since it can suggest the wrong idea that the means that have been prohibited are to be opened and allowed to lead to what is unlawful. Because of this confusion, some people have rejected the valid underlying principle – mistaking it for an allowance of the means that lead to what is unlawful. However, this is not the case. The scholars who have adopted the term fath al-dharâ’i` merely intended means that are permitted, preferred, or obligatory.

To avoid confusion, I think that it is better to avoid using the phrase fath al-dharâ’i`, but rather to discuss “moderation and balance in employing the principle of preventing the means to wrongdoing.” This means that we should not prevent means except when those means really lead most of the time to unlawful consequences, and even then, only in cases where there is not a greater good to be achieved through allowing those means.

Looking at the question in this way, those means that lead to lawful consequences are to be regarded as lawful by default – since the default ruling in Islamic Law in the absence of other contrary evidence is that a given activity is assumed to be lawful.

And Allah knows best.