Series of Answers by the Eminent Scholar Ata Bin Khalil Abu al-Rashtah, Ameer of Hizb ut Tahrir to the Questions of the Visitors of his Facebook Page "Fiqhi"
Answer to a Question
To Walid Elmi
Question:
Assalamu Alaikum our Sheikh. I have a question regarding the rules of "the lesser of two harms" or "the lesser of two evils" which many da’is and Islamic movements use as an excuse to participate in legislative and presidential elections. Are these considered Shari’ rules? Have some jurists spoken of them? What are their evidences and what is the response to them? May Allah bless you.
Answer:
Wa Alaikum Assalam wa Rahmatullahi wa Barakatuh,
Regarding this rule, we have answered it on 29/08/2010, and I will quote for you what was mentioned in our referred answer:
[The rule of "the lesser of two evils" or "the lesser of two harms."
This is a Shari’ rule for a number of jurists. For the scholars who adopt it, it refers to a single meaning: the permissibility of embarking upon one of two prohibited acts—the one that is less prohibited—if the mukallaf (legally responsible person) has no choice but to perform one of the two prohibitions and cannot leave both of them together; because that is impossible, meaning it is entirely beyond one’s capacity.
Allah (swt) says:
لَا يُكَلِّفُ اللَّهُ نَفْساً إِلَّا وُسْعَهَا
"Allah does not burden a soul beyond that it can bear." (QS Al-Baqarah [2]: 286)
And He (swt) says:
فَاتَّقُوا اللَّهَ مَا اسْتَطَعْتُمْ
"So fear Allah as much as you are able." (QS At-Taghabun [64]: 16)
This means that this rule, according to those who stated it, is not applied except when it is impossible to refrain from both prohibitions, such that one cannot stop both prohibitions except by the occurrence of a greater prohibition; in that case, the lesser of two harms is taken. Furthermore, these scholars do not determine the "lesser of two harms" according to whims, but rather according to Shari’ rules. For instance, saving two lives is more a priority than saving one life, and three is more a priority, and so on. Preserving life takes precedence over preserving wealth. Preserving Dar al-Islam is included in preserving the Deen, which takes precedence over preserving life and wealth. Likewise, Jihad and the Al-Imamah al-Uthma (the Caliphate) are included in preserving the Deen, which is the foremost and most important of necessities. The scholar Ash-Shatibi said in Al-Muwafaqat: "Lives are respected, protected, and required to be preserved, such that if the matter revolves between preserving life and destroying wealth for its sake, or destroying life and preserving wealth, then preserving life is more a priority..."
Examples mentioned by these scholars in application of the rule include:
1- If a mother's labor becomes difficult and it becomes impossible to save both the mother and the fetus, and the matter requires a quick decision: either save the mother, which necessitates the death of the fetus, or save the fetus, which necessitates the death of the mother. If the matter is left and no action is taken to sacrifice one for the other, it may lead to the death of both. In such a case, it is said to take the lesser of two evils, or the lesser of two prohibitions, or the lighter of two detriments (mufsadatayn), which is to proceed with the action that saves the one required to be saved—the mother—even if this action itself results in the death of the other.
2- A person is exposed to death by drowning or being killed by another person, or is exposed to severe physical harm, or a woman is subjected to adultery, in the presence of a mukallaf who can prevent these munkarat (evils) but is currently performing a mandatory prayer whose time might expire. Either he prevents that prohibition and misses the performance of the obligation, or he performs the obligation in its time and that prohibition occurs, and the time does not suffice for both. Here, the rule is applied, and the weighting is also done by the Shari’ which made removing those mentioned prohibitions more emphasized than performing the mentioned obligation—though if it were possible to do both, both would be mandatory.
3- These are other examples mentioned by Imams Al-Ghazali and Izz al-Din ibn Abd al-Salam (may Allah have mercy on them), showing how the rule of the lesser of two evils is applied according to them, and showing the balancing between rulings. Al-Izz said in his book Qawa'id al-Ahkam fi Masalih al-Anam: "If pure detriments (mafasid) gather, if it is possible to ward them off, we ward them off; if it is impossible to ward them all off, we ward off the most detrimental, then the next most detrimental..." Then he mentioned examples, saying: "That one is coerced to kill a Muslim such that if he refuses, he himself is killed; he must ward off the detriment of killing by being patient with being killed, because his patience with being killed is a lesser detriment than his embarking upon killing..." This is a clear example that it is a choice of the lighter of two detriments or prohibitions because there is no escape from one of them, and if he could prevent both detriments, it would be mandatory for him to do so.
He said in another example: "Similarly, if he is coerced by death to give false testimony or to judge with falsehood; if the thing he is coerced to testify to or judge by is a killing, the cutting of a limb, or the permitting of an unlawful private part, then the testimony or the judgment is not permissible. This is because surrendering to being killed is more a priority than causing the killing of a Muslim without sin, or the cutting of a limb without a crime, or approaching an unlawful private part..." Meaning, if it is a case where he is either killed or gives false testimony against another that leads to their death, the cutting of their limb, or the violation of their honor, it is not permissible for him to testify; rather he should be patient with being killed, because surrendering to his own death is more a priority than killing another Muslim...
This means the situation in which one resorts to working with the lesser of two prohibitions or detriments is the state of inability to avoid both prohibitions together or prevent them both together.
These are examples of the application of the rule of the lesser of two harms according to the scholars who adopt it. However, its examples are not what the "Sheikhs of the Sultans" promote, or those who want Muslims to deviate from the Shari’ rules through misguidance and falsehoods.
Those who use the rule to commit this prohibition instead of that prohibition, justifying their action by saying they feared being imprisoned or fired from their jobs—this is not from this rule.
Likewise, those who say: "We participate in the rule of Kufr (disbelief), even though it is prohibited, so that we do not leave all governing positions to the wicked (fussaq), because leaving the rule to them is a greater prohibition"—this is not among the applications of the rule. Rather, it is like one who says: "We will open a bar and earn money from it instead of a Kafir opening it and he earning the money..."
It is also not from the applications of the rule when a person is presented with two prohibited matters and he chooses the lighter of them while he is capable of refraining from both. This is like the saying of those who say: "Elect so-and-so even if he is a secularist Kafir or a fasiq (wicked), or support so-and-so and do not support the other, because the first helps us and the second does not," or what is similar to that. Rather, what should be said here is: Both matters presented before us are prohibited. It is not permissible to elect a secularist, nor is it permissible to authorize or delegate him to represent a Muslim in opinion. This is because he does not adhere to Islam and because he performs prohibited actions that the delegator (muwakkil) is not allowed to perform, such as legislating and ratifying prohibited projects, and demanding prohibited things, accepting them, and proceeding with them. In summary, he forbids the Ma’ruf (good) and enjoins the Munkar (evil). Therefore, it is not permissible to elect either of them, because electing this one or that one is prohibited. Refraining from electing this one or that one is within one’s capacity (wasa’).
It is not from the applications of "the lesser of two harms" for a Muslim to face two prohibited actions and be capable of refraining from both, but then proceed to choose the lighter one according to his whim, claiming that refraining from both prohibitions is difficult! Rather, it is mandatory to refrain from all prohibitions as long as that is within one's capacity according to the Shari’ rules.
This is a brief summary regarding "the lesser of two harms" or "the lesser of two evils."] End.
Your brother, Ata Bin Khalil Abu al-Rashtah
10 Rabi’ al-Awwal 1442 AH 27/10/2020 CE
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