LEGAL MAXIMS AND OTHER GENRES OF LITERATURE 85

conclusion is drawn that we are allowed to utilize the resources of the earth for our benefit and, unless something is specifically declared forbidden, it is presumed to be permissible.

"Al-ḍararu yuzāl—harm must be eliminated" is a derivative, in turn, of the renowned hadith "la ḍarara wa lā ḍirār—let there be no infliction of harm nor its reciprocation". This hadith has also been adopted into a legal maxim in precisely the same words as the hadith itself.¹⁰ A practical illustration of this hadith-cum-legal maxim is as follows: Suppose that someone opens a window in his house which violates the privacy of his neighbour, especially that of its female inhabitants. This is a harmful act which should not have been attempted in the first place, and may call for legal action and remedy. But, it would be contrary to the maxim under review for the neighbour to reciprocate the harmful act by opening a window in his own property that similarly violates the privacy of the first neighbour.

A similar manifestation of the maxim "al-ḍararu yuzāl—harm must be eliminated" is the validation of the option of defect (khiyār al-‘ayb) in Islamic law, which is designed to protect the buyer against harm. Thus, when a person buys a car and then discovers that it is substantially defective, he has the option to revoke the contract. For there is a legal presumption under the Shari'a that the buyer concluded the contract on condition that the object of the sale was not defective.

The hadith of "lā ḍarar" has given rise to a number of additional maxims on the subject of ḍarar. To quote but a few, it is provided in a maxim: "A greater ḍarar is eliminated by (tolerating) a lesser one—al-ḍarar al-ashadd yuzālu bi'l-ḍarar al-akhaff." For example, the law permits compelling the debtor, or one who is responsible to support a close relative, to fulfill their obligations, and give what they must, even if it means inflicting some hardship on them. According to another maxim, "harm may not be eliminated by its equivalent—al-ḍarar la yuzālu bi-mithilih" (The Mejelle, Art. 25). This may also be illustrated by the example we just gave of "la ḍarara wa lā ḍirār".

Another maxim on ḍarar has it that "harm cannot establish a precedent—al-ḍararu lā yakūnu qadīman." Lapse of time, in other words, cannot justify tolerance of a ḍarar. For example, waste disposal that pollutes a public passage should be stopped regardless as to how long it has been.