Islamic Law Objectives (Maqāṣid) and the International Declaration for the Protection of the Environment

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Mohamed Qasim al-Mansi; Lecturer on Fiqh (Islamic jurisprudence), Faculty of Dar-ul-Ulum, Cairo University.

Article contents: Chapter One: Introduction (to the subject matter) Chapter Two: Islamic law objectives (maqāṣid) and their relationship to the environment Chapter Three: The attention granted by Islamic jurisprudence to the environment Chapter Four: Environmental protection methods between Islamic law and international agreements

Several things prompted me to embark on this study, most notably:

First: my desire to reveal an aspect of the rulings of Islamic law, the Shariah, relating to the environment; given the global interest—growing since the latter part of the previous century—in environmental affairs and issues. Indeed, several international conferences were convened for the purpose of saving the environment from further deterioration, and to afford its protection from all forms of pollution arising from numerous factors.

Second: in today’s world, the question of the environment is considered a crucial entrée to international relations based on shared human foundations. It is the environment—at the end of the day—that is the common factor binding all peoples on the planet; humans are either partners in humanity, or neighbours in one world. In totality, this compels relationships between humans to be restructured, in light of the challenges and threats they are experiencing.¹

Third: in our Arab and Muslim world, the level of environmental awareness, whether in the material or cultural domains, is extremely poor. This presents a grave risk to the region’s inhabitants; as the environment, in either respect, is considered one of the most critical influences on human life.

Fourth: it is quite a shock for the researcher in Islamic jurisprudence (fiqh) to find that Muslim jurists in the different eras paid a high level of attention to issues of the environment, yet, on examining present reality, to find no effect of this on contemporary Muslim life.

Concern for the environment does not stop at merely protecting it from all forms of pollution: water, air, food, atomic radiation, etc. Rather, it goes beyond that, to regulating social behaviour, preserving personal and public rights, establishing social justice, and securing human dignity. Muslim jurists put this into practice, by imposing civil liability or responsibility on those causing personal or public injury to others, in life, body, or wealth. Hence, they ruled that a doctor is liable for failure to perform his duty in treating the patient; a contractor is liable for the damages arising from his negligence in performing what he agreed to; a vehicle driver is liable, if he throws up dust or mud, soiling a pedestrian’s clothing while speeding, let alone crashing into them.

Fifth: Concern for the environment—in all its dimensions—represents one of the areas of work relating to development and social cohesion; hence, the necessity to restore the effective and key role of compensation for harm, and in the event of physical or financial injury, or what is called “applying penalties”, manifesting in both aspects of compulsion and deterrence; these function together to regulate behaviour, preserve rights, ensure duties are performed, and eliminate contention and hatred.

Without doubt, all this requires concerted effort in the domains of legislation, and religious and cultural instruction; the desired outcome being well-being of world and religion, and well-being of life for all humans and living creatures.

For these reasons, I prepared this paper to answer the following questions:

1. What is the status of the environment in Islamic law, the Shariah?
2. How did Islamic jurisprudence (fiqh) deal with issues of the environment?
3. What is the role of Islamic law objectives (maqāṣid) in protecting the environment?
4. What are the environmental protection methods in Islamic law and international agreements?

This paper is divided—following this foreword—into four chapters:

Chapter One: Introduction (to the subject matter).

Chapter Two: Islamic law objectives (maqāṣid) and their relationship to the environment.

Chapter Three: The attention granted by Islamic jurisprudence to the environment.

Chapter Four: Environmental protection methods between Islamic law and international agreements

If this paper reveals aspects of the attention granted by Islamic jurisprudence to the environment; if it were to highlight the depth of the link between Islamic law objectives and environment issues; and if it contributes to solving the problems suffered by contemporary Muslim society, and indeed the whole world, then it will have achieved the desired aim.

Chapter One

Introduction

This chapter addresses four areas of enquiry:

First: The concept of environment.

Second: A historical examination.

Third: The attention granted to the environment by the Noble Qur’ān and the Prophetic Sunnah

Fourth: International agreements and protecting the environment

First area of enquiry

The concept of the environment and its most important elements

1. Referring to dictionaries, it is clear that the lexical origin of the Arabic word, bī’ah (بيئة) is the root (bā – wāw - alif). In “Lisān al-‘Arab”, the word, bawaa’, in the phrase: “bā’ ilā al-shay’ yabū’ baw’an”, means returned (raja‘). Furthermore, al-bā’ah means matrimony (al-nikāḥ). Also, “wa abā’ahu manzilan, wa bawwa’ahu iyyāh, wa bawwa’ahu lah, wa bawwa’ahu fīh, bi ma‘nā hayya’ahu lah, wa anzalahu, wa makkana lahu fīh” means: to prepare a position for him, place him in it, and grant him power over it.

He [Ibn Manẓūr] said: “the noun is al-bī’ah…” and “tabawwa’tu manzilan”, i.e. to take the position; for example, Allāh, the Exalted says [in the Qur’ān]: “And those who were settled in their abode (al-Madinah) before them and [adopted] the faith (wa alladhīna tabawa’ū al-dār wa al-īmān min qablihim…)” [Sūrat al-Ḥashr, 9]. He designated “īmān” or faith, as their abode, and may have intended: settled in the place of faith, and land of faith, which were omitted.

And “tabawwa’a al-makān: ḥallahu…” meaning to come to live in it, and “wa innahū la ḥasan al-bī’ah, ay, hay’at al-tabawwu’)”² meaning his taking up position is done with refinement, i.e. describing the form of taking position.

From the abovementioned, it appears that the verb, (bawa’a), revolves around several meanings, namely: preparing the place to settle in; returned; matrimony; and condition.

2. In the terminology (muṣṭalaḥ) of the discipline, researchers offered numerous definitions³, but the one I am inclined to is: the environment corresponds to the surroundings (muḥīṭ) in which the human being lives.

These surroundings, or the environment, encompass several aspects, namely:

The natural environment, industrial environment, and social environment, and everything that surrounds the human being, comprising elements, circumstances, things, or events that influence him, either negatively or positively. Hence, the environment is a complete system of diverse and interacting stimuli, alternating their influence on the circumstances of the human being, leading to poverty and wealth, health and disease, progress and backwardness, knowledge and ignorance, good and evil, probity and corruption, etc.

3. It is appropriate to mention here, the definition chosen in Egyptian Environment Law No.4 for 1994, namely “the vital surroundings, including living creatures, the materials it contains, and the air, water, and soil surrounding it, as well as those facilities established by humans⁴”.

4. It is also appropriate to say that some researchers indicated that the lexical meaning of the word, bī’ah (بيئة), is almost the same in different languages. It refers to the setting or surroundings in which the living creature lives, in general, and also the circumstances that surround this setting, whatever their nature, whether natural, social, or biological, which influence the life, growth, and reproduction of that creature⁵.

Second area of enquiry

Historical examination

1. Reflecting on the history of care for the environment, it may be noted that the environment is old—as ancient as mankind itself. The first environmental incident was Adam’s son murdering his sibling, and then not knowing what to do with his brother’s body; until Allāh sent a crow to teach him how to deal with the corpse. Since that time, the issue of environment has grown little by little commensurate with the incremental growth and progress of human life.

2. It is only natural that over many decades in time, environmental problems were quite limited; life was quite easy and simple, while the pace of human growth was no cause for concern; natural resources in most lands were sufficient, and mostly exceeded the needs of the population. It was not out of the ordinary that Egypt—for example—during Pharaonic times reached a peak in wealth and natural resources, to the extent that the Noble Qur’ān described in the words of Allāh Almighty the people ofPharaoh: “So We removed them from gardens and springs. And treasures and honourable station” (Sūrat al-Shu‘arā’ 57-58).

3. Furthermore, ancient Egyptian archaeological sites, such as the Pyramids, Abu Simbel Temple in South Luxor, the Valley of Kings in Luxor, and others, are testimony to a high level of environmental awareness; surviving for thousands of years to this day, defying all elements of ruin and loss.

It is enough for us to know that the ancient Egyptians constructed Abu Simbel Temple in an architectural form that allowed the sun’s rays to enter and shine on the face of King Ramses II for 21 minutes in only two days of the year—his birthday and the day of his coronation as monarch, i.e. on 22 February and 22 October, respectively⁶.

4. Greek civilisation played an important role in environmental science; the Greek scholar and philosopher, Hippocrates, authored a book titled “On Airs, Waters, and Places” (‘Abr al-ajwā’ wa al-miyah wa al-amākin). He understood the influence of these three elements on living creatures, especially the human being. Aristotle and his disciples also played a significant role through their books of natural history. Perhaps, his most renowned work in this domain is “History of Animals” (Kitāb al-ḥaywān). Indeed, numerous Greek scholars exerted mammoth efforts in the area of science of fauna and flora⁷.

5. The extent of interest in the environment in ancient times is illustrated by the choice of location for towns. Ibn Khaldūn comments: “… know that towns are the fixed abode adopted by nations when they achieve the desired luxury and its means, preferring indolence and tranquillity, and turn to selecting places for settlement. As these are for permanent residence and accommodation, it is imperative to consider repelling harms by protecting from their precursors, procuring benefits, and facilitating amenities. In regards to protection from harms, consideration must be given to erecting a barrier of walls encircling all its homes, and that these are sited on the most defensible of places, either on top of a rocky crag, or encircled by sea or river, and cannot be accessed except by crossing a bridge or dyke, so that it is difficult for the enemy to reach, and its defence and fortification is thus multiplied. Consideration must also be given to protection from Divine afflictions, with pure air for protection from disease… As for procuring benefits and facilities to the land, consideration must be given to matters like water: such as the place being on a river, or nearby abundant, pure water springs… Also for the amenities of cities, consideration must be given to good pasture for their grazing animals, as the permanent dweller is in need of reproducing animals for offspring, udder, and mount, and these must have pasture… thought must also be given to farms… Also, consideration of proximity to sea to ease access to vital goods from distant lands…Also to be considered for coastal settlements located on the sea, is that they be positioned on a mountain, or nestled within a nation endowed with a large population that comes to their rescue if attacked by enemy raiders…⁸”

6. The care afforded to the environment by Islamic teachings and rulings is demonstrated in the numerous civilising institutional bodies invented by the Muslim mind, including:

(a) The Caliphate (khilāfah): where we saw how the Caliphs, and their appointed governors and assistants, showed personal concern for the environment. We find ‘Umar b. al-Khaṭṭāb (may Allāh be pleased with him) encouraging one of the Companions to plant a tree on the latter’s land, and he himself took part in planting. We saw how he advised care and gentleness in treating animals, and encouraged the revival of dead land (mawāt). Also ‘Alī (may Allāh be pleased with him), who ruled that the land of Kharāb in Kūfah was to be treated as dead land⁹.

(b) The judiciary (qaḍā’): where the judge could issue a sentence on the basis of ta‘zīr, i.e. State-imposed penalties, on those who abused the environment.

(c) The institution of supervision of public rights and morals (ḥisbah), which played a substantial role in supervision, guidance, control, and correction, and intervened in many social, economic, and moral matters.

(d) The institution of charitable endowment (waqf khayrī): this is based on continuous charity in perpetuity, where a person sets aside an asset, stipulating that the earnings generated from it are to be given in charity, and to fill gaps in people’s lives… Indeed, we find that some philanthropists established trusts to care for stray dogs.

(e) The institution of zakāt or obligatory religious tax on wealth exceeding a specified threshold: zakāt performed its effective role of treating the problems of the poor, the destitute, defaulting debtors, and travellers in need… It is well known that the problem of the three enemies: poverty, disease, and ignorance, is considered to be the most complex of problems standing as an obstacle to caring for, and manifesting excellence (iḥsān) towards, the environment.¹⁰

7. Attention to the environment - in its different aspects - did not represent a source of concern for humanity; however, the situation changed radically following the industrial and technological revolution that brought a significant change in human beings’ treatment of natural wealth and resources. Excessive exploitation of these resources led to depletion, “impoverishing life on this Earth, and upsetting the fine balances in the natural infrastructure of the planet; the pace of desertification increased due to neglecting agriculture in the plains; waves of destructive flooding resulted from deforestation of mountains; chemical substances were used arbitrarily, while water resources were drowned in human and industrial waste. Hence, underground water was polluted, poisons leached into the ground; marine wealth dwindled, and the balance relating to marine creatures was disrupted in many parts of the sea, while gas emissions led to a greater proportion of poisons in the air, leading to acid rain, which impacted the rain cycle, until the resulting drought became one of the most prominent problems in a large number of countries”.¹¹

8. Global interest in the necessity to protect the environment came to the fore from the second half of the 20th century, manifested in approximately 130 international agreements. Yet, the complaint still stands regarding the deterioration of environmental affairs for many reasons, forcing the erudite Shaykh al-Qaradawi to say:

“If the environment had a tongue to speak, and voice to be heard, our ears would be deafened by the shrieks of rainforests deliberately burned in the Amazon, the keening of water suffocated by oil slicks in bays and seas, the gasping of air suffocated by factory gases and lead in the world’s large cities¹²”.

Third area of enquiry

The attention granted to the environment by the Noble Qur’ān and Prophetic Sunnah

(a) The attention granted to the environment by the Noble Qur’ān

Many verses (āyāt) of the Noble Qur’ān are replete with mention of the environment from several perspectives:

1. Drawing attention to the natural elements of the environment that surround humans—of earth and sky, land and sea, water and air, and sun and moon.

2. Environmental balance, which refers to the natural elements and constituents of the environment persisting in their original, natural state, as created by Allāh, without any notable change.

3. Forbidding corruption and its instigation on Earth, land and sea; this corruption includes the material kind, resulting from pollution and changes in the nature of the elements surrounding human life, and the moral kind, resulting from injustice, autocracy, and waywardness.

Here are examples of Qur’ānic verses that speak about elements of the environment:

Allāh, the Exalted says: {“It is He who made the earth a bed for you, and the sky a structure. He sent down water from the sky and by it brings forth fruits for your provision. So do not, knowingly, make others equal to Allāh.”} (Sūrat al-Baqarah, 22)

He, the Exalted says: {“As for the earth, We stretched it out, cast in it firmly embedded mountains, and made everything on it grow in due proportion. And We created livelihoods in it for you and for those you do not provide for. There is nothing that does not have its stores with Us and We only send it down in known measure.”} (Sūrat al-Ḥijr, 19-21)

He, the Exalted says: {“Have they not looked at the sky above them: how We structured and adorned it, and how there are no fissures in it? And the earth: how We stretched it out, and cast firmly embedded mountains onto it, and caused luxuriant plants of every kind to grow in it, as an instruction and reminder for every penitent human being. And We sent down blessed water from the sky and made gardens grow by it and grain for harvesting, and soaring date-palms with layered spathes, as provision for Our slaves; by it We brought dead land to life. Indeed, that is how the Resurrection will take place.”} (Sūrat Qāf, 6-11)

He, the Most Magnificent says: {“Are you stronger in structure or the sky? He built it. He raised its vault high and made it sound. He darkened its night and brought forth its morning light. After that He smoothed out the earth, and brought forth from it its water and its pastureland, and made the mountains firm, for you and your livestock to enjoy.”} (Sūrat al-Nāzi‘āt, 27-33)

He, also says: {“Man has only to look at his food. We pour down plentiful water, then split the earth into furrows. Then We make grain grow in it, and grapes and herbs, and olives and dates, and luxuriant gardens, and orchards and meadows, for you and your livestock to enjoy.”} (Sūrat ‘Abasa, 24-32)

He, the Exalted says: {“Say: ‘Do you reject Him who created the earth in two days, and make others equal to Him? That is the Lord of all the worlds.’ He placed firmly embedded mountains on it, towering over it, and blessed it and measured out its nourishment, laid out for those who seek it – all in four days.”} (Sūrat Fuṣṣilat, 9-10)

He, the Exalted says: {“It is He who made the earth submissive to you, so walk its broad trails and eat of what He provides, and the Resurrection is to Him.”} (Sūrat al-Mulk, 15)

Animals are also constituents of the environment, and the Qur’ān gives them a significant amount of attention. Indeed, many of its chapters (sūrah) are named after animals and birds; for example, “the Cow (Sūrat al-Baqarah)”, “the Cattle (Sūrat al-An‘ām)” comprising camels, cows, and sheep, “the Bees (Sūrat al-Naḥl)”, “the Ants (Sūrat al-Naml)”, “the Spider (Sūrat al-‘Ankabūt)”, and “the Elephant (Sūrat al-Fīl)”.

Allāh, the Exalted tells us about animals and their importance to mankind: {“And He created livestock. There is warmth for you in them, and various uses and some you eat. And there is beauty in them for you in the evening when you bring them home and in the morning when you drive them out to graze. They carry your loads to lands you would never reach except with great difficulty. Your Lord is All-Gentle, Most Merciful. And horses, mules and donkeys both to ride and for adornment. And He creates other things you do not know.”} (Sūrat al-Naḥl, 5-8)

Horses, mules, and donkeys are among the animals mentioned in the Qur’ān; Allāh, the Exalted says: {“And horses, mules and donkeys both to ride and for adornment. And He creates other things you do not know.”} (Sūrat al-Naḥl, 8)

Flying creatures mentioned in the Qur’ān include the crow, hoopoe, fly, mosquito, and bee.

While crawling creatures mentioned are the ant, snakes (both large (thu‘bān) and small (ḥayyah)), locust, wheat weevil (qummal)—an insect that eats the developing wheat spike, before the kernel emerges, also called al-naṭṭāṭ in some quarters.

The Qur’ān informs us that birds and pack animals are nations like us; Allāh, the Exalted says: {“There is no creature crawling on the earth or flying creature—flying on its wings, who are not nations like yourselves – We have not omitted anything from the Book – then they will be gathered to their Lord.”} (Sūrat al-An‘ām, 38)

The Qur’ān also tells us about plants; Allāh, the Exalted says: {“It is He who sends down water from the sky. From it you drink and from it come the shrubs among which you graze your herds. And by it He makes crops grow for you and olives and dates and grapes and fruit of every kind. There is certainly a Sign in that for people who reflect.”} (Sūrat al-Naḥl, 10-11)

He, the Exalted says: {“It is He Who sends down water from the sky from which We bring forth growth of every kind, and from that We bring forth the green shoots and from them We bring forth close-packed seeds, and from the spathes of the date palm, date clusters hanging down, and gardens of grapes and olives and pomegranates, both similar and dissimilar. Look at their fruits as they bear fruit and ripen. There are Signs in that for people who have faith.”} (Sūrat al-An‘ām, 99)

The sea is also a constituent of the environment, about which the Qur’ān talks; Allāh, the Exalted says: {“It is He who made the sea subservient to you so that you can eat fresh flesh from it and bring out ornaments from it to wear. And you see the ships cleaving through it so that you can seek His bounty, and so that perhaps you will show thanks.”} (Sūrat al-Naḥl, 14)

Allāh, the Exalted also says: {“Your Lord is He who propels the ships on the sea for you so that you may seek His bounty. He is indeed Most Merciful to you. When harm occurs to you at sea, those you call on vanish – except for Him alone! But when He delivers you to dry land, you turn away. Man is truly ungrateful. Do you feel secure against Him causing the shore to swallow you up or sending against you a sudden squall of stones? Then you will find no one to be your guardian.”} (Sūrat al-Isrā’, 66-68)

In this way, the Qur’ān has told us about all of nature’s constituents—the elements of the environment surrounding the humans.

We note that there is a fine and perfect balance between all elements of the environment; everything in this universe is created in defined measure, with wisdom, for a purpose, and in precise calculation.

Indeed, if the sun was larger than it is, or hotter, or closer to Earth, everything on the face of the Earth will have burned. If it was smaller, cooler, or farther than it is now, then Earth will cool, and life would not be possible. If Earth were to revolve on its axis, or around the sun, faster or slower, the same would happen.

If the moon was closer to Earth, or larger in size, then ocean tides would be more powerful, submerging the entire planet twice a day.

If the proportion of oxygen was less, or the proportion of carbon dioxide was less or more, then there would be no life.

Not only did the Qur’ān tell us about the environment, but called on us to preserve, and not corrupt it. Allāh, the Exalted says: {“Do not corrupt the earth after it has been put right. Call on Him fearfully and eagerly. Allāh’s mercy is close to those who practice excellence.”} (Sūrat al-A‘rāf, 56)

Allāh, the Exalted says: {“… and do not go about the earth, corrupting it.”} (Sūrat al-A‘rāf, 74)

The corruption mentioned here is not restricted to material corruption by polluting air, water, soil, etc., but also moral corruption, i.e. sinfulness, exceeding limits, profligacy, and injustice.

(b) The attention granted to the environment by the Prophetic Sunnah

As for the Prophetic Sunnah, it granted the environment significant attention, parallel to that of the Noble Qur’ān, from several perspectives:

1. The perspective of inviting to planting, cultivation, and caring for greenery: for example, Allāh’s Messenger (peace be upon him) said: “Any Muslim who sets a plant in soil, or sows a crop, from which bird, human, or animal eats, it counts as charity given by him”.¹³

2. The perspective of inviting to reviving land through planting and growing, etc., such as the Prophet (peace be upon him) saying: “He who revives a dead land (mawāt), it is his” [in ownership]¹⁴.

Dead land (mawāt) is fallow land, free of cultivation or construction. This tradition (ḥadīth) called it dead to indicate that, like humans, who live and perish, places and lands may also die and be revived. Land dies as a result of being left fallow, while its life and revival is through tilling, growing crops, planting trees, and building homes and other structures.

Ibn Ḥajar in “al-Fatḥ” quotes al-Qazzāz as saying: “Al-mawāt: is a land that has not benefited from cultivation or development (‘imārah). Such development or ‘imārah has been likened to life, while neglect is likened to loss of life. Reviving dead land is by a person going to a piece land, of no known prior ownership, and revives it by irrigation, seeding, or planting, and it comes into his ownership through this action”¹⁵.

3. The perspective of cleanliness and removing harm from people’s way: such as his (peace be upon him) saying: “Faith has over sixty branches; the most excellent is declaring: lā illāha ila Allāh (there is no god but Allāh), and the humblest, removing whatever causes harm from the way, and modesty (ḥayā’) is a branch of faith¹⁶”.

4. The perspective of concern for the life of animals and birds, and not killing them gratuitously: He (peace be upon him) said: “No person kills a small bird or larger, without due right, but Allāh, Most Glorious, Most Mighty, shall ask him about it”. They said: O’ Messenger of Allāh, what is its due right? He said: “He slaughters it, and eats it, and does not decapitate it and then throws the carcass away”.¹⁷

Ibn ‘Umar (may Allāh be pleased with him) reports, in a tradition attributed to the Prophet (marfū‘): “A woman was punished on account of a cat, she kept it captive until it died of hunger, and so she entered hellfire because of it”.¹⁸

5. The perspective of forbidding the pollution of water by any means: for example, his (peace be upon him) saying: “Protect yourselves from the three curses: defecating in the water resources, in the roadside, and in the shade”.¹⁹

Abū Hurayrah (may Allāh be pleased with him) narrated that the Messenger (peace be upon him) said: “protect yourselves from the two curses”. They said: what are the two curses, O’ Messenger of Allāh? He said: “the one who relieves himself in peoples’ way or their shade”.²⁰

- “You should not urinate in standing water that does not flow, then wash in it”.²¹

- “You should not urinate in standing water, that does not flow, then perform ablution (wuḍū’) in it”.²²

6. The perspective of forbidding excessive use of water: On the authority of ‘Abd Allāh b. Mughaffal (may Allāh be pleased with him), who said: I heard the Messenger of Allāh (peace be upon him) say: “There will be from amongst this nation [of Muslims] people who will transgress in purification (ṭahūr) and supplication (du‘ā)”.²³

7. The perspective of practising excellence (iḥsān) with animals: the Messenger of Allāh (peace be upon him) said: “Verily Allāh has prescribed excellence (iḥsān) in all things. So if you kill, then kill well; and if you slaughter, then slaughter well. Let each one of you sharpen his blade and let him spare suffering to the animal he slaughters”.²⁴

In the Prophetic tradition: while a man was walking, he was overcome by intense thirst. He found a well, and descended in it, drank, and then climbed out. There he encountered a dog, panting and eating moist soil from thirst. The man said: this dog is as thirsty as I was. So, once again, he descended into the well, filled his shoe, gripped it in his mouth, and gave the dog to drink; Allāh appreciated his act, and pardoned him. They said: O’ Messenger of Allāh, do we gain reward by serving animals? He said: “In every moist liver [i.e. animal], there is reward”.²⁵

8. The perspective of preserving animal and plant resources in wartime: on this matter, we find the instruction of Abū Bakr (may Allāh be pleased with him) to his armies’ commanders: “I advise you of ten [things]: do not kill a woman, child, or aged person; do not cut fruit-bearing trees; do not destroy inhabited areas; do not kill a goat or camel, except to eat; do not burn palm trees, nor inundate them; do not embezzle from the war booty; and do not succumb to cowardice²⁶”.

Fourth area of enquiry

International agreements and protecting the environment

With the appearance of numerous environmental problems, the world began to pay attention to the danger of abusing the environment. Conferences were held and agreements reached, with the aim of ending this abuse and protecting the environment, so as to ensure a safe and stable life for humans on the planet. This is illustrated in the following:²⁷

(a) In 1972, the UN Conference on Human Environment was held in Stockholm, Sweden ²⁸. This was followed by successive international and regional conferences aimed at protecting the environment from the dangers of pollution, and indeed, to educate people on protecting the environment where they live; for example, the Intergovernmental Conference on Environmental Education, held in 1977 in Tbilisi (the Georgian SSR, USSR).

(b) Protection of the environment became an important area of international law. Key agreements or conventions in this regard are:

1) The 1933 London Convention Relative to the Preservation of Fauna and Flora in their Natural State.

2) The 1974 Helsinki Convention on the Protection of the Marine Environment of the Baltic Sea Area.

3) The 1976 Barcelona Convention for Protection of the Mediterranean Sea against Pollution.

4) The 1978 Kuwait Regional Convention for Co-operation on the Protection of the Marine Environment from Pollution.

5) The 1982 Jeddah Regional Convention for the Conservation of the Red Sea and of the Gulf of Aden Environment.

6) The 1989 Geneva Convention on Long-Range Transboundary Air Pollution²⁹.

(c) In 1993, the Green Cross International organisation was established in Geneva to work in collaboration with the United Nations for the protection of the environment from disasters and pollutants. Its founding president was Mikhail Gorbachev, the Soviet Union’s last president.

The Earth Summit:

The conference titled “United Nations Conference on Environment and Development”, later known as the [Rio] Earth Summit, was convened in the first half of June 1992 in Rio de Janeiro, Brazil. This was the largest global meeting in history, as it included representatives of 178 States, and was attended by more than 100 heads of state and governments. Its aim was to protect the Earth, its resources and climate, by setting policy for global growth, ending poverty, and preserving the environment.

The conference began with a two-minute silence, out of respect for the ailing planet’s problems. Then, Dr Boutros-Ghali, UN Secretary-General at the time, delivered the opening speech. He emphasised that Earth was ill, suffering from both backwardness and progress, and that the richer countries carried the greater burden of responsibility for polluting Earth; moreover, that everyone was concerned—people in the rich north and those in the poor south, because Earth is their common home. He added that development must not be secured at the expense of the environment, and that saving Earth for the sake of future generations requires unified international efforts, and coordinated global cooperation between all members of the human race.

He demanded that both rich and poor countries change their way of life; he accused the former of following an illogical way of life and causing the rise in global temperature, and the latter of destroying their wealth in a tragic way, based on depleting future resources to secure present-day needs.

The conference discussed a number of draft proposals for international agreements, where 150 States signed only two of these agreements, namely:

1. The Convention on Climate Change: addressing climate change, rising Earth temperature and the means of confronting this; particularly, through reducing carbon dioxide, and oxides of nitrogen and sulphur gases emitted into the air. This was ratified after removing the clauses enforcing compliance, and accepting as substitute the simple commitment from signatory states to reduce emissions of gases causing rising global temperature and the greenhouse effect to 1990 levels. This solution, as emphasised by scientists, was insufficient to protect Earth’s climate, but represented a compromise solution, following the USA’s refusal to sign the convention in its first strict and obligatory form; the USA alone is responsible for 35% of the mentioned gases’ emissions.

Both the Europeans and Japanese supported the idea of imposing a mandatory tax on carbon dioxide emissions, resulting from the use of fossil fuel energy sources, such as oil and coal; so that the balance of collected funds would be used to modernise processing plants and refineries, in order to be less polluting. However, the oil-producing countries rejected this, while the USA objected on the grounds that this would hamper economic development.

2. The second agreement was the Convention on Biological Diversity aimed at protecting living animals and plants under threat of extinction; however, the USA did not agree to this convention, so as to protect vital interests in genetic engineering, as the convention would allow patent rights for the biotechnology industry to be infringed. American President George Bush declared that: The United States contributes to the protection of living things under threat of extinction without signing the treaty, and that its efforts by far exceeded the treaty requirements. A dispute also arose around funding for conservation programmes. The American rejection appears to have been influenced by impending presidential elections in November 1992. Therefore, the subsequent President, Bill Clinton decided to sign the Convention on Biological Diversity in 1992, in line with the global trend of ratifying it.

The matter of protection of forests - equatorial or temperate - led to a dispute, especially among those states, in whose territories these forests were situated, and others. The USA announced doubling its assistance to poor countries for forest protection, and introduced legislation making it compulsory to plant trees to replace those felled.

The Conference concluded with the Rio Declaration, adopted by all UN member states; it included 27 principles that are the basis of stewardship of Earth, as humanity’s home, so as to preserve the environment while pursuing development.

(e) In late June 1997, the Earth Summit II Conference, held by the UN in New York, failed to agree a closing statement regarding environmental protection, including adopting new measures to combat rising Earth temperature. The Conference Chairperson emphasised that governments did not have the political will to solve the complex environmental problems they faced. The majority of delegates to the Conference, representing 170 countries, confessed to its failure. This was attributed to insurmountable disputes between the industrialised nations demanding environmental initiatives, and the developing nations demanding financial aid.

The New York Earth Summit ratified a document, agreed at the last minute, as a substitute for the final declaration, which emphasised the following:

1. The increasing degradation of environment is cause for grave concern.

2. Climate change represents one of the greatest challenges the world will face in the 21st century.

3. Broad, but not full consensus, exists on the need to adopt binding, realistic, and fair restrictions on industrial nations leading to a large reduction in gas emissions, according to defined timetables.

4. The results of the forthcoming summit, to be held in Kyoto, Japan, will be crucial.

(f) In early September 2002, the Earth Summit was convened in Johannesburg, South Africa, attended by 104 heads of state and governments.

A few days before the conference, the UN published the “Global Challenge Report”, warning that: 30% of arable land worldwide was under threat of desertification; 90 million hectares of forest had actually been destroyed during the Nineties, after the first Earth Summit; one billion people were unable to secure clean drinking water; and an estimated 3.5 billion people faced a sharp decline in water supplies by 2025, especially in North Africa and West Asia. The report stated that polluted water was causing the death of 2.2 million people every year. The report also indicated that demand for food will rise as the world population increased, while soil fertility declined in many places in the world due to land depletion, as a result of over-utilisation, drought, or desertification.³⁰

Chapter Two

Islamic law objectives (maqāṣid) in relation to protecting the environment

The chapter comprises five areas of enquiry:

First area of enquiry: The environment and the objective of preserving faith (ḥifẓ al-dīn).

Second area of enquiry: The environment and the objective of preserving life (ḥifẓ al-nafs).

Third area of enquiry: The environment and the objective of preserving progeny (ḥifẓ al-nasl).

Fourth area of enquiry: The environment and the objective of preserving wealth (ḥifẓ al-māl).

Fifth area of enquiry: The environment and the objective of preserving the intellect (ḥifẓ al-‘aql).

First area of enquiry

The environment and the objective of preserving religion

Duties in Islamic law—as posited by al-Shāṭibī—are based on preserving Islamic law objectives in God’s creation; these objectives are classified into one of three kinds:

1. Necessities (ḍarūriyyah).

2. Needs (ḥājiyyah).

3. Improvements (taḥsīniyyah).

Objectives classed as necessities (ḍarūriyyah) are indispensable to materialising religious and worldly benefits. If necessities are missing, then worldly benefits can no longer be procured with probity, but through corruption, bloodshed, and inequalities, while in the Hereafter, there is no salvation or eternal bliss, but resurrection in abject loss. Necessities are safeguarded by two things: one is attention from the perspective of existence, which establishes their pillars, and cements their foundations. The second is attention from the perspective of absence, which protects against disturbance, actual or potential… There are five necessities in total, namely preserving faith, life, progeny, wealth, and intellect.³¹

Hence, if faith is the first of these five necessities—essential to securing religious and worldly benefits, then this entails protecting the environment, and indeed, its development. This is because the environment is the domain, where the human being exercises his mission of vicegerency (istikhlāf) and civilising development (isti‘mār), as tasked by God, the Legislator, who says: {“… I am putting a vicegerent (khalīfah) on the earth…”} (Sūrat al-Baqarah 30); and says: {“… He brought you into being from the earth and made you its inhabitants…”} (Sūrat Hūd 61)

Therefore, preserving and protecting the environment from all forms of abuse is a religious obligation, not just a life necessity. This is expressed by the legal maxim (qā‘idah fiqhiyyah), “that without which an obligation cannot be fulfilled is itself obligatory (mā lā yatim al-wājib illā bihī fa huwa wājib)”. Moreover, as the pillars of religion relate to either ritual acts of worship (‘ibādāt), or transactions (mu‘āmalāt), then, these pillars cannot be manifested in isolation from the environment:

- Ritual prayer, ṣalāh, requires purification, which in turn requires water—one of the environment’s constituent elements. The condition is that this water must be pure; free from pollutants that corrupt its nature, and prevent its use for drinking, ablution (wuḍū’), or ritual washing (ghusl).

- Paying the compulsory share of one’s wealth that exceeds the threshold in zakāt, requires humans to disperse across Earth, to strive and do work of all kinds, in agriculture, industry, commerce… implying developing and protecting the environment.

- Fasting (ṣiyām) requires forsaking anything that corrupts or destroys the elements of environment, because they are a gift from Allāh.

- Pilgrimage (ḥajj) requires financial and physical capacity, which cannot exist for an individual without working or striking out on Earth, to build, settle, and restore.

- Transactions (mu‘āmalāt) are the sum of humans’ interaction with the environment, in all it contains of raw materials and elements, providing opportunities for investment, development, and exchange with others, in a way that achieves collaboration and integration, which is beneficial to the entire human race.

However, Islam did not stop there, and showed humans how to deal with the creatures around them, because these represent one of the elements of the environment; {“There is no creature crawling on the earth or flying creature, flying on its wings, who are not nations just like yourselves – We have not omitted anything from the Book – then they will be gathered to their Lord.”} (Sūrat al-An‘ām 38)

Islam also forbade corruption, and corrupting the environment; He, the Exalted says: {“When they are told, ‘Do not cause corruption on the earth,’ they say, ‘We are only putting things right.’ No indeed! They are the corrupters, but they are not aware of it.”} (Sūrat al-Baqarah 11-12); also: {“… Do not cause corruption in the land after it has been put right. That is better for you if you are believers”} (Sūrat al-A‘rāf 85); and {“Corruption has appeared in both land and sea because of what people’s own hands have brought about so that they may taste something of what they have done; perhaps they will turn back]”} (Sūrat al-Rūm 41).

In addition, Islam has forbidden profligacy in using environmental elements. Excessive use is considered a main reason for environmental deterioration, and resource depletion. Indeed, all its manifestations and forms lead to one result, namely devastation of plants and progeny, and destruction of environmental balance, which is considered one of the laws necessary for continued life on the planet.

From this perspective, Qur’ānic verses speak about excess and those engaged in it, namely: {“… pay their due on the day of their harvest, and do not be profligate. He does not love the profligate.”} (Sūrat al-An‘ām 141); and {“… eat and drink but do not be profligate. He does not love the profligate”} (Sūrat al-A‘rāf 31). Moreover, other verses indicated that those who indulged in excess were wiped out; Allāh, the Exalted says: {“But We kept Our promise to them and rescued them and those We willed, and destroyed the profligate”} (Sūrat al-Anbiyā’ 9).

The Prophet (peace be upon him) also warned of excess, in saying: “Eat, drink, and give charity; without excess or showing off”.³²

Second area of enquiry

The environment and the objective of preserving life

The rationale of this objective is to protect human life—the body and soul, from anything that represents a danger to one or both, or leads to either the annihilation of the human race, or exposing humans to the danger of diseases and harms that cause death.

Ibn Ashur explains the meaning of preserving life, by saying:

“Preserving life means to protect souls from impairment, individuals or generally, because the world is composed of human individuals, and each soul possesses particular characteristics, contributing to the world’s functioning. Preserving life by applying retaliatory punishment (qiṣāṣ) is not what is intended, despite the jurists presenting this as an example; rather, we find that qiṣāṣ is the least effective form of preserving lives, because it is action taken only after the fact. Yet, most importantly, preservation is action before harm occurs; for example, combating endemic diseases; indeed, ‘Umar b. al-Khaṭṭāb (may Allāh be pleased with him) forbade the army from entering the Levant (Shām), due to the plague of Amwas (‘Amwās).

The intended here are those souls afforded respect by Islamic law, referred to as “ma‘ṣūmat al-dam”, i.e. those whose blood is sacrosanct; do you not see that the adulterer is punished by stoning to death (rajm), even though preserving progeny is lower in level than preserving life; while protecting some parts of the body from damage is an adjunct to preserving lives from harm. These are those parts to which damage is equivalent to damage to the entire body, leading to loss of benefit from that person; like those parts whose damage by mistake warrants full diyyah, or compensation”.³³

It must be noted that preserving life necessitates several measures aimed—ultimately—at maintaining both human and animal life; these measures include:

- Islam’s prohibition of killing a person, where the killing of one person is considered equal to killing all mankind. Allāh, the Exalted says: {“… if someone kills another person – unless it is in retaliation for someone else or for causing corruption in the earth – it is as if he had murdered all mankind. And if anyone gives life to another person, it is as if he had given life to all mankind...”} (Sūrat al-Mā’idah 32).

- Islam’s prohibition of killing oneself, i.e. committing suicide, promising painful torment on the Day of Resurrection for those who do so. Allāh, the Exalted says: {“… And do not kill yourselves. Allāh is Most Merciful to you”} (Sūrat al-Nisā’ 29).

- Islam’s prohibition of killing an animal, unless it was injurious to the person. It was reported that the Messenger of Allāh (peace be upon him) mentioned five animals that may be killed lawfully, inside and outside the Sanctuary [in Makkah]: “the crow, kite, rat, scorpion, and aggressive dog”.³⁴

Those posing no harm to humans must be treated with gentleness; they are not to be tortured, nor their right to life violated. This is because they play a role in keeping the environmental balance; hence, in the Prophetic tradition: “A woman entered Hellfire on account of a cat; she kept it captive, and neither did she feed and water it, nor did she leave it to scavenge and eat of the earth’s scraps”.³⁵

- Among these measures, Islam’s invitation to bury the dead in the soil, and not abandon corpses in the open, to protect the environment from deadly diseases and epidemics.

- Also, Islam’s call for treatment and cure as a necessity: “seek treatment, servants of Allāh; for Allāh has not sent a disease, but He has created a cure for it”.³⁶

Third area of enquiry

The environment and the objective of preserving progeny

The intention of this objective is to preserve life for mankind, and the continuation of the human race on this Earth, as Allāh, the Exalted, willed it to be. Progeny encompasses offspring and generations to be born in the future.

Islamic law has addressed this, through several means:

First, legislating marriage, which is considered to preserve the human kind in one of its most important intents and purposes.

Second, not depleting natural resources, by demanding economy and moderation, because successive generations possess rights over these resources.

Third, protecting the environment from all the features of pollution, to preserve environmental balance and prevent harm to human and animal life.

Fourth, prohibiting the call to restricting family size (taḥdīd al-nasl) for the Muslim nation, because this leads to neglect of the Islamic law objective of continuity of the human race.

Fifth, calling for taking care of younger generations in their health and psychological well-being.

Ibn Ashur pointed to this objective saying: “As for preserving lineage, expressed as protecting progeny, the scholars have used the term, without explaining its intended meaning. Therefore, we shall address this in detail:

If the intended meaning is that lineage, i.e. having children, not to be disrupted, then it is clearly a necessity. This is because progeny are descendants of the individuals of the species, and if having children is neglected, then the consequences are stagnation and decline in the race; as [Prophet] Lot said to his people: {“… and you waylay people on the road…”} (Sūrat al-‘Ankabūt 29), according to one of two exegeses. With this meaning, there is no doubt in considering it one of the universal matters (kulliyāt), because it is equivalent to preserving lives. Therefore, the Muslim nation’s males must, for example, be protected from sterilisation, and not stop engaging in conjugal relations with wives by preferring celibacy, and so on. The Muslim nation’s females must also be protected from surgical removal of the parts of the womb that allow pregnancy to take place, the incidence of interrupted pregnancy at the time of implantation, and excising the breast; this leads to high child mortality due to the great burden of artificial feeding for many women, and its near impossibility in rural areas.

On the other hand, if the intended meaning of preserving lineage is to protect the relationship of children to their forefathers, where for this purpose Islam set legal rules for marriage, and prohibited extramarital relations, stipulating a specific punishment, then it may be said: ‘indeed, counting it among the necessities is not clear’, as the Muslim nation has no tangible necessity in knowing who is Zayd son of ‘Amrū; rather, the necessity lies in the continued existence of the individuals of the species, and that their affairs are sound and proper. However, in this particular case, there is a very grave harm, in that doubts in the mind regarding the child’s tie of kinship to the parent eliminates that parent’s natural and innate inclination to protect, defend, and care for that child, assuring its existence and well-being, and soundness of body and mind, which are achieved through edification and spending on children until they no longer need such care. This is a harm that does not reach the level of a necessity (ḍarūrah), because the mother’s care for her children is sufficient to achieve the intended for progeny. However, it eliminates the child’s feeling of being cared for, loved, helped, and protected when powerless. In this sense, deconstructing its aspects locates protecting lineage in the class of needs (ḥājiyyāt). However, it transpires that not protecting lineage in the sum total of these aspects leads to many serious consequences, which upset the nation’s order, and severely undermine the foundation of family; hence, our scholars considered preservation of lineage as a necessity. Indeed, this is borne out by Islamic law imposing a harsh penalty for adultery, and the reported position of some scholars in being very strict regarding marriage in secret, without a legal guardian (waliy), or in the absence of witnesses…”³⁷

Fourth area of enquiry

The environment and the objective of preserving wealth

For us to grasp the connection between the environment and preservation of wealth, we must learn the meaning of the term, “māl”, in language and terminology.

The word, māl, in the lexis is used for: all the things that a human being owns.³⁸

As for the terminological meaning, jurists have differed on the definition of māl, as follows:

- Ibn ‘Ābdīn posited that it signifies: the thing to which people are naturally inclined, and can be saved for times of need. It is evidenced by all or some people using it as such.³⁹

- Al-Shāṭibī defined it as: what is possessed, and the owner imposes his exclusive right over it, if gained from legitimate source.⁴⁰

- Ibn al-‘Arabī defined it as: those things that are coveted, and it is appropriate—customarily and in Islamic law—to derive benefit from them.⁴¹

- ‘Abd al-Wahhāb al-Baghdādī said: what is used normally as wealth, and is authorised for use in exchange⁴².

- The Ḥanbalī scholars said: māl in Islamic law is what is permitted absolutely, i.e. in all circumstances, and is allowed to be owned without need to do so.⁴³

From the previous definitions, we deduce the following:

1. The word, māl, is used for those things that are exchangeable, or hold monetary value.

2. It is appropriate in both custom and Islamic law to derive benefit from it.

3. It encompasses those things owned for the purpose of commerce or need.

In conclusion, the word, māl, is used to describe all things that surround the human being, which he strives to gain, or enjoy exclusive rights over.

Therefore, land, plants, cattle, pasture, residence, clothes, and minerals are all wealth (māl).

Ibn Khuldūn says: know that gain is by striving to possess, and intent to obtain; to secure provision, to strive and work is a must, even in partaking of it, and seeking it from its legitimate sources. Allāh, the Exalted says: {“… So seek your provision from Allāh …”} (Sūrat al-‘Ankabūt 17). This striving to gain is achieved by Allāh’s decrees and inspiration; as everything is from Allāh, and hence, human activity is required in every matter of gain and wealth, because if it is work performed for himself, as in the case of a craftsman, then it is clear, and if it is a thing to be owned, like animal, plant, or mineral, then human work is necessary, as you see; otherwise, nothing will happen, and no benefit will be secured.

Furthermore, Allāh, the Exalted, created the two metals, gold and silver, as value measure for every wealth, and they are the means of savings and prized possession for the majority of people in the world; even when other kinds are owned sometimes, the intent is to secure their possession given that others are subject to market exchange from which both are isolated. They are both the foundation of gain, possession, and savings⁴⁴.

If we have defined the meaning of wealth (māl), then it is imperative to indicate how wealth is preserved; as preserving wealth is through the following means:

First, growing, i.e. increasing, wealth; this increase may be derived from the same thing, or it could be external. However, for this increase to be achieved, then the human must strive to work, and seek provision (rizq). For this reason, Islamic law permitted types of contracts that lead ultimately to growth in wealth, through trade, agriculture, manufacturing, or other activities. The aim is to preserve wealth, for the benefit of both individual and collective.⁴⁵

Second, preventing those lacking the capacity to manage their affairs and orphaned minors from taking control of their wealth, so as to stop them from squandering it.⁴⁶

Third, ruling that those infringing on others’ wealth are liable to compensate, either by like-for-like replacement of what has been damaged, or paying its value; as “Majallat al-Aḥkām al-‘Adliyyah” stated: to give like-for-like, if of similar things (al-mithliyyāt), or pay its value, if of those things that may be monetised (al-qiyamiyyāt).⁴⁷

Therefore, if wealth is as we have presented, then preserving it needs the environment’s living or non-living elements. This is achieved by conserving, and striving to further develop the environment. Also, by not exposing it to devastation, loss, or abusive exploitation, leading to adverse effect on the individual and society.

Natural resources must receive the utmost care from the individual, because he is not an exclusive owner. Rather it belongs to all generations, present and future. For this reason, one of the Islamic law objectives is preserving wealth, which underpins human living in this world, and is one of two things that Allāh, the Exalted created as domains for adornment, show, and taking pride, saying {“Wealth and children are the embellishment of the life of this world…”} (Sūrat al-Kahf 46).

Fifth area of enquiry

The environment and the objective of preserving the intellect

The intellect (al-‘aql) is highly regarded in Islam, as it is the effective cause or ratio legis (manāṭ) for the human being’s accountability before Allāh (taklīf). Hence, the obligation to perform the acts of ritual worship, namely prayers (ṣalāh), fasting (ṣiyām), pilgrimage (ḥajj), Jihad or others, does not apply to those with impaired reasoning, such as the insane person, even if they were Muslim and had passed puberty. The Prophet (peace be upon him) stated: “The pen [recording a person’s deeds] has been lifted [i.e. will not write] for three [individuals]: the sleeping person until they wake up, the young boy until they reach puberty, and the insane person until they recover their reason”.⁴⁸

Jurists (fuqahā’) have agreed that the financial transactions of the non-reasoning person are null and void, and so his sale, lease, agency, or collateral contracts are all disallowed. Moreover, he cannot be party to any contract, financial or otherwise; indeed, his statements have no effect, whether declaring Islam or apostasy, contracting marriage, divorcing, or repudiating through ẓihār by declaring his wife equal to those he cannot lawfully marry. All his disclosures, in matters of lineage or finance, testimony, reports, or narrations, are not admissible.

The intellect enjoys such a high position, because it is the most weighty of meanings, and most beneficial of all the senses; indeed, it is through intellect that human is distinguished from animal; he determines true facts, is guided to his interests, protects himself from harm, and by it enters into obligations before Allāh. It is a condition for taking up positions of authority (wilāyāt), correctness of actions, and performing the various kinds of ritual worship (‘ibādāt).⁴⁹

Islamic law has adopted diverse ways to care for, and develop, the intellect, not just preserve it, because through it—as Ibn ‘Ābidīn mentions in al-Ḥāshiyah—is the benefit of life and hereafter.⁵⁰

Among these diverse ways, is that Islam invited the human being to apply the intellect to reflect on the different aspects of the universe, comprising earth, sky, mountains, and animals, and indeed, to reflect on himself, his food, and everything related to him, so as to comprehend the majesty of the Creator, and the requisite obedience and worship⁵¹.

Islamic law also prohibited anything that may debilitate, dissipate, or extinguish mental faculty…⁵²

Moreover, Islamic law imposed the penalty of paying financial compensation (diyyah) for the offence of causing loss of mind, on the basis of the missive of the Prophet (peace be upon him) to ‘Amrū b. Ḥazm: “financial compensation (diyyah) is due on the mind”⁵³.

Ibn Ashur pointed to the meaning of preserving the intellect, saying: “and the meaning of preserving the intellect is to preserve peoples’ minds from any defect occurring in them, because defect of the mind results in great evil, of irrational, uncontrolled behaviour; indeed, a defect in the individual’s mind leads to partial evil, while it slipping into the minds of collectives and the general public in the Muslim nation is ever more serious. Therefore, it is imperative to stop the individual from drunkenness, and prevent its prevalence among the Muslim nation, as well as the pervasiveness of corrupting substances, like marijuana, opium, morphine, cocaine, heroin, and others, which are consumed widely in the 14th century AH⁵⁴”.

In terms of the connection between preserving the intellect and protecting the environment, it is clear that protecting the human being means—among other things—preserving his intellect. The absence of rational thinking means that the human being cannot function, or deal properly with the elements of the surrounding environment, so as to ultimately conserve, rather than waste, natural resources, even more, to judiciously employ these towards developing the environment, and protecting it from all manifestations of pollution and corruption.

Conserving and protecting the environment from all kinds of corrupting influences is one of the most important conditions of vicegerency and civilising development (i‘mār).

Vicegerency requires the human being to deal with the environment as a trust, and know that it has been subjugated to his wishes, and that he will be held accountable on the Day of Judgement.

Furthermore, civilising development is commanded by God, requiring the human being to strive to take advantage of all the natural resources and raw materials surrounding him, as well as all those things that help in accomplishing his mandatory task of civilising development, on the one hand, and also secures his freedom, which is the basis of responsibility on the other.

Chapter Three

Attention to the environment in Islamic jurisprudence

This comprises two areas of enquiry:

First area of enquiry: Domains of care for the environment.

Second area of enquiry: Juristic applications of care for the environment.

First area of enquiry

Domains of care for the environment

A- Rulings related to human health:

Without doubt, Islamic jurisprudence granted significant attention to human health; given the public interests (maṣāliḥ) and utilities (manāfi‘) contingent on good health and well-being, and the harms (ḍarar) and evils (mafāsid) stemming from frailty and illness; indeed, the noble Prophetic tradition states that: “the strong believer is superior and more beloved to Allāh than the weak believer, and in each there is good…⁵⁵”. Without doubt, good health and well-being are among the chief reasons for attaining the strength required by the Muslim nation under all conditions.

The book, “Maṣāliḥ al-abdān wa al-anfus”, written by Abū Zayd al-Balkhī (d. 322AH) is one of the most important written works illustrating this. “Its author lived in the second half of the 3rd, and beginning of the 4th Century AH; in addition, al-Balkhī is considered to be one of the greatest scholars of his time; a polymath, who accumulated the knowledge and sciences of his time; he was a man of letters, a philosopher, an orator, with important contributions in Islamic law sciences, medicine, history, and geography”.⁵⁶

Al-Balkhī begins his book with the statement: “Allāh, Magnificent in mention, gifted the human being with the power of discernment; to know what is of utility and procure it, and what is harmful and avoid it; for this to be the means to securing the good of his life and hereafter, and resource to acquire the best for his present and future.

His soul and body are his equipment to procure utilities and evade harm, such that their sound condition enables him to accomplish his duty in that regard; the human being has just one body and one soul. The two constitute his being, and basis for his existence in this world. Therefore, it is right for every sane person to apply the utmost earnestness and diligence in pursuing those matters that sustain their safety and health, and repel prevailing harms and afflictions, and emergent ills and diseases. Moreover, not to allow himself to miss the opportunity of gaining his share of learning those things that by knowing and practising one attains well-being of body and soul; indeed, he must uphold this as the most important matter of his concern, and grant it the highest priority, warranting his undivided attention”.⁵⁷

He then says: “This is a book I authored on the interests of bodies and souls; in it, I included what I hope is of benefit to the one perusing it, informing them of the grand gain in using it. I divided it into two articles: one on managing the interests of bodies, and the other on managing the interests of souls”.⁵⁸

As for the degree of attention that must be given to the human’s health— the well-being of his body and soul, he says: “Indeed, care and mending of people’s bodies during time of good health is what is needed to protect from the adversities of heat and cold, and painful setbacks on the outside, and from harms of hunger and thirst, and the like on the inside; while, in times of sickness, the need for treatment with medicines that banish disease is glaringly obvious to commoners, let alone the enlightened; this is because they have seen first-hand the result of caring for, and maintaining, body and soul, in their survival and good condition, and appreciate that negligence leads to impairment and a miserable state.

The ruling for all species of animals in this matter—I mean the essential need for care and upkeep, good management of feeding and watering, repairing each one’s shelter and habitat, banishing incident afflictions from their bodies, and treating illnesses that appear, as well as their demise and wretched state, if abandoned and neglected—is similar to the ruling for humans.

Domesticated animals live among people, who manage these animals’ interests within these meanings, while wild animals are endowed with the instinct necessary for preserving body, procuring utilities, and repelling harms.

This description we gave for animals also extends to plant and tree species, in their need for nurturing (ta‘ahud), improving (istiṣlāḥ), and protection from the debilitating conditions of heat and cold.

One can see the benefits with one’s own eyes, where those sheltered from the cold of winter survive, while those left exposed, quickly fall victim to the detrimental effects of the cold. ⁵⁹

Similarly, one can see the beneficial effect on their produce, when cared for, in lasting unchanged for a long time, and how they quickly decay and spoil when neglected.

This meaning, i.e. the need to provide care and attention, is also true for the artificial things that people make, as well as those things possessing properties created by The Creator, the Exalted; for example, constructed buildings need maintenance and refurbishment, and once this is stopped, deterioration and dilapidation quickly appear.

This is the same for all the worldly things that people use in their lives. Indeed, all of these, each in its own way, need care and maintenance, otherwise, failure will swiftly take root.

In total, everything in this world, whether natural or artificial, is essentially susceptible to decline and change (istiḥālah)⁶⁰, and is in critical need for care and maintenance to ward off deterioration, and preserve it over the period of useful life dictated by their characteristics”.⁶¹

He further says: “the human’s body is one of those things that must be granted precedence in not being overlooked and neglected; indeed, to be given its due share of care and improvement; Allāh has made humans preside over everything in this world, managers and administrators, sustaining what is needed for the survival of other species, while their corruption leads to corruption of all that Allāh has given in possession, and exercise of power over.

Care for bodies is accomplished for two things: one is to preserve health, if present, and the other restoring it, if absent.

Here we shall disclose the best management in each one of the two cases, in the chapters of this article subsequent to this one, after we present a set of descriptions relating to the origins of things, the beginning of human nature, and arrangement of his parts; this will serve as a foundation upon which to build, of those things required in elucidating what we intend to explain, and clarify, by the Will of Allāh, the Almighty”.⁶²

Therefore, it is clear that from al-Balkhī’s perspective, preserving health is part of preserving life, which includes human beings and living creatures, with nurturing (ta‘ahud) and improving (istiṣlāḥ) as the means to accomplish this; “Care for bodies is accomplished for two things: one is to preserve health, if present, and the other restoring it, if absent”. Does this sentence not echo as a precursor of Imām al-Shaṭibī’s theory of “preservation (ḥifẓ)” from both perspectives of existence and absence?

The book consists of two parts; one on managing the interests of bodies, and the second on managing the interests of souls; its approach is a study of objectives from the perspective of interests and evils, and establishing the theory of preservation, out of concern for existence and preventing lack; the objectives in it are both material and moral at the same time.

The first part comprises fourteen chapters, some concentrating on health of the body, some tackling managing food, drink, matters of smell, sleep, procreation, washing, physical exercise, auditory matters, and restoring health or treatment.

The theory of preservation here addresses the human’s physical strengths, in his need for food, clothing, sleep, cleansing, and treatment of mental strength, and the required kinds of physical exercises, and practice of types of arts; all these are mainstays of his mental health.

The second part of the book addresses interests of souls in eight chapters; firstly, reporting on the degree of need for managing the interests of souls, and its aim is knowing human traits, “if the human being was to become acquainted with his nature, limits of its strength, and degree of independence in matters, then accordingly, he can arrange management of his expectations and intentions”.⁶³

2- Domains of care for animal:

The domain of caring for animals represents another manifestation of the attention given by Islamic jurisprudence to the environment, as animals are an essential part of it. Indeed, the Noble Qur’ān draws attention to the fact that the animal world contains many nations, not just one: {“There is no creature crawling on the earth or flying creature, flying on its wings, who are not nations like yourselves – We have not omitted anything from the Book – then they will be gathered to their Lord.”} (Sūrat al-An‘ām 38).

From this verse (āyah), we deduce the following:

1. We are not alone in this universe, but have the company of other living things; each animal walking the earth, or bird flying in the air, is part of a nation united by common attributes. There is the nation of cows, nation of goats, nation of wolves, nation of horses, nation of mules, nation of donkeys, nation of ants, nation of crawling creatures, nation of bees, nation of crows, nation of sparrows, nation of pigeons, nation of butterflies… and so on.

All living things on the Earth’s surface belong to their respective nations, and likewise, everything that flies through the air…

2. We cannot live without animals, in their diverse types; we ride some, and carry our loads and baggage on others; we eat the meat of some, such as cows, buffalo, camels, sheep, goats, and hens; we also eat the fat of these animals, drink their milk, and eat honey from bees. We produce furnishings, clothes, rugs, and covers from their pelt, wool, and hair. Animals also help us in farm work, such as tilling, threshing, and irrigation. Dogs are also a nation, among them guard dogs that guard our homes, possessions, and livestock, and police dogs that help us catch criminals, and find explosives.

3. The need for animals is not solely for practical reasons, but is also aesthetic; many people love to own some animals for beauty and enjoyment; for example, horses, dogs, cats, parrots, small birds, pigeons, ornamental fish, and others.

4. Not only that, but an intimate bond, and deep love, may arise between human and animal leading to sadness and depression, if the animal falls ill or dies.

Moreover, some animals reciprocate the love of their owners, and are happy to see them, sad to leave them, enjoy their play, and put themselves in danger for their owner’s sake; indeed, some dogs or cats suffer depression, when their owners die, and cannot live without them.

The Noble Qur’ān points to this, as Allāh, the Exalted says: {“And He created livestock. There is warmth for you in them, and various uses and some you eat. And there is beauty in them for you in the evening when you bring them home and in the morning when you drive them out to graze. They carry your loads to lands you would never reach except with great difficulty. Your Lord is All-Gentle, Most Merciful. And horses, mules and donkeys both to ride and for adornment. And He creates other things you do not know.”} (Sūrat al-Naḥl 5-8).

5. Furthermore, animals played a role in the lives and stories of Prophets and righteous persons. For example, the crow in the story of Cain and Abel: {“Then Allāh sent a crow which scratched at the earth to show him how to conceal his brother’s corpse. He said, ‘Woe is me! Can I not even be like this crow and conceal my brother’s corpse?’ And he became one of those who suffer bitter remorse”} (Sūrat al-Mā’idah 31).

For example, the dog belonging to the people of the cave (Kahf): {“You would have supposed them to be awake whereas in fact they were asleep. We turned them to the right and to the left, and, at the entrance, their dog stretched out its paws. If you had looked down and seen them, you would have turned from them and run and have been filled with terror at their sight”} (Sūrat al-Kahf 18).

Prophet Yūnus’ (Jonah) (peace be upon him) whale: {“Yunus too was one of the Messengers. When he ran away to the fully laden ship, and cast lots and lost. Then the fish devoured him and he was to blame. Had it not been that he was a man who glorified Allāh, he would have remained inside its belly until the Day they are raised again”} (Sūrat al-Ṣāfāt 139–144).

Uzair’s donkey: {“Or the one who passed by a town which had fallen into ruin? He asked, ‘How can Allāh restore this to life when it has died?’ Allāh caused him to die a hundred years then brought him back to life. Then He asked, ‘How long have you been here?’ He replied, ‘I have been here a day or part of a day.’ He said, ‘Not so! You have been here a hundred years. Look at your food and drink – it has not gone bad – and look at your donkey so We can make you a Sign for all mankind. Look at the bones – how We raise them up and clothe them in flesh.’ When it had become clear to him, he said, ‘Now I know that Allāh has power over all things.’ ”} (Sūrat al-Baqarah 259).

Prophet Solomon’s (peace be upon him) hoopoe: {“He inspected the birds and said, ‘How is it that I do not see the hoopoe? Or is it absent without leave? I will certainly punish it most severely or slaughter it if it does not bring me clear authority.’ However, it was not long delayed, and then it said, ‘I have comprehended something you have not and bring you accurate intelligence from Sheba”} (Sūrat al-Naml 20–22).

6. These are some of the kinds of animals mentioned in the Noble Qur’ān: sheep, goats, cow, lion, ants, donkeys, horses, mules, camel, mosquitoes, spider… Moreover, in the Qur’ān are chapters named as: the Cow (al-Baqarah), the Cattle (al-An‘ām), the Bees (al-Naḥl), the Spider (al-‘Ankabūt), the Ants (al-Naml), the Galloping Horses (al-‘Ādiyāt), and the Elephant (al-Fīl).

Regarding animal rights, these are:

The first right: the right to food and drink:

This is a natural right of every living creature, because without eating or drinking, they will die. The animal’s owner must provide for it, otherwise they would be sinful, and considered to have killed it, if he acted wilfully. If the animal was ownerless, then it is people’s duty to ensure this animal’s natural right to life, so that it does not die of hunger.

The compassion in the hearts of some Muslims reached praiseworthy heights; some of them endowed part of their wealth to spend on feeding stray dogs, in what was called at the time, “Waqf al-kilāb” (the dogs trust), saving them from starving to death.

The Messenger of Allāh (peace be upon him) informed us of the woman who “entered hellfire because of a cat; she confined it, and did not give it food or drink, nor did she release it to eat from the scraps of the Earth”.⁶⁴

He also told us about the man who entered paradise because of a dog, to which he gave water; he (peace be upon him) said: “while a man was walking, he was overcome by intense thirst. He found a well, and descended in it, drank, and then climbed out. There he encountered a dog, panting and eating moist soil from thirst. The man said: this dog is as thirsty as I was. So, once again, he descended into the well, filled his shoe, gripped it in his mouth, and gave the dog to drink; Allāh appreciated his act, and pardoned him. They said: O’ Messenger of Allāh, do we gain reward by serving animals? He said: ‘In every moist liver [i.e. animal], there is reward’ ”.⁶⁵

There is no disagreement among the jurists that the owner of the animal is responsible for its provision; in “Maṭālib ulī al-nuhā (Aspirations of the people of wisdom)”: “the owner of the animal must feed it, even if it is incapacitated [i.e. no benefit is expected from it], and water it, to the beginning of hunger being appeased, and thirst quenched, below its anticipation; on the basis of the Prophetic tradition narrated by Ibn ‘Umar: “a woman was punished because of a cat; she confined it until it died of hunger”.

If unable to provide for it, the owner would be compelled to sell, hire, or if edible, slaughter it, to eliminate harm and injustice upon it; also, because it is open to loss if left without provision, and squandering wealth is prohibited.

If he refused to do any of that,⁶⁶ then the judge or ruler may choose from the most appropriate of the three [prior] options, or borrow on his behalf, and spend it on the animal, as if the owner had refused to pay a debt. It is also forbidden to curse the animal, as reported by Aḥmad and Muslim on the authority of ‘Umrān b. Ḥaṣīn (may Allāh be pleased with him) that the Prophet (peace be upon him) was on a journey, and a woman cursed a she-camel (nāqah), he said: “remove the load upon it, and set it free; for it is cursed”, ‘Umrān said: it is as if I see it now passing between people, with no one interfering with it.⁶⁷

They also report the tradition on the authority of Abū Barzah: “a she-camel upon which is Allāh’s curse shall not accompany us”.⁶⁸ Muslim also reports on the authority of Abū al-Dardā’, that he [the Messenger] said: “those who curse habitually shall not be interceding on the Day of Resurrection”.⁶⁹

It is forbidden to overload the animal, because this is torture. It is also forbidden to milk it, such that its offspring suffer; because its milk was created for its offspring, similar to slave woman’s children; it is also recommended for the milking person to cut their nails short, so as not to injure the animal’s udder.

It is forbidden to hit, or brand any part of the face; the Prophet (peace be upon him) cursed those who strike or brand the face, and forbade that—as mentioned in “al-Furū‘ ”… It is disliked (makrūh) to cut mane or forelock, cut off tail, or hang bell, or string; to draw attention… It is disliked to overfeed beyond its capacity, and force it to eat, as is the custom of some people, for the purpose of fattening, as stated in “al-Ghunyah”.

It is an obligation on the owner to feed and water the dog that is lawful in Islam to own, otherwise to set it free, because not doing so is torture… It is not permitted to confine any livestock until they die of thirst or hunger, as this is torture, even those that are lawful to kill; in accordance with the Prophetic tradition: “… Thus if you kill, kill well…”⁷⁰

The second right: right to health care and cleaning:

This is the case for domesticated animals that do not harm humans; the minimum cleaning is washing with water to repel insects that harm it.

If the animal becomes ill, then it must be presented to a doctor specialised in treating animals, and if the owner is negligent in doing so, then they are considered to have disobeyed Allāh.

The third right: the right of being gentle to it:

Dealing with animals must be based on gentleness, not violence or severity. The Messenger of Allāh (peace be upon him) urged us to be gentle with animals in all circumstances, most particularly when slaughtering; he said: “Verily Allāh has prescribed excellence (iḥsān) in all things. Thus if you kill, kill well; and if you slaughter, slaughter well. Let each one of you sharpen his blade and let him spare suffering to the animal he slaughters”.⁷¹

An animal deserves to be treated with compassion and gentleness, even when being slaughtered…!

Some may say: of what benefit is this to the animal, if it is to be slaughtered moments later; however, the benefit may not be in being gentle to the animal, but rather in the human being’s favour?

Those who are gentle to animals are more likely to be so with fellow humans, while those who are harsh to animals will also be harsh to humans.

‘Umar b. al-Khaṭṭāb, may Allāh be pleased with him, saw a man dragging a goat by its leg to slaughter; he said to him: “woe to you, lead it to death in the nicest way”.⁷²

A man said: O’ Messenger of Allāh, I have mercy on the goat in slaughtering it. He (peace be upon him) responded: “If you are merciful to it, then Allāh will have mercy on you; he who does not show mercy is shown no mercy”.⁷³

Part of being gentle to the animal is to not burden it beyond its capacity; Imām Aḥmad reported that one day the Prophet (peace be upon him) entered an orchard belonging to one of the Anṣār; inside was a camel, which began to shed tears on seeing the Prophet of Allāh. The Prophet (peace be upon him) went to it and passed his hand over it, until it calmed down, and was quiet. He then said: “who is the owner of this camel?” A young man from the Anṣār came forward, and said: it is mine, O’ Messenger of Allāh. He said: “Will you not fear Allāh in this animal over which Allāh has granted you possession, for it has complained to me that you let it go hungry, and tire it with too much work”.⁷⁴

One of the closest illustrations of gentleness towards animals is what the management of one of the zoos in Japan did; they decided to install electric heaters in the monkey cages, after they found that the monkeys had been affected by the extreme cold!!

The fourth right: the right to burial below the soil after death:

As a living creature, it deserves to be buried in the ground. It is not appropriate for the corpse to be left out in the open, or thrown into the water; because all this leads to pollution of water and environment, and results, in the end, to provoking various diseases.

The fifth right: not harming animals without reason:⁷⁵

Islamic legislation has prohibited harming animals; this is evidenced in many Noble Prophetic traditions, including:

The report by Abū Hurayrah, Allāh be pleased with him, who said: I heard the Messenger of Allāh (peace be upon him) saying: “An ant bit one of the Prophets; he ordered the colony of ants to be torched. So Allāh sent down revelation to him: You were bitten by an ant, so you burned a nation among nations that glorify Me”.⁷⁶

In another narration, the Messenger of Allāh (peace be upon him) said: “One of the Prophets stopped to rest under a tree, and was bitten by an ant. He commanded his belongings to be removed from under the tree, and then ordered its home to be torched with fire. So Allāh sent him revelation: why not just one ant”.⁷⁷

Al-Nawwawī in “Sharḥ Muslim” states: “The scholars said: from this Prophetic tradition, it is understood that in the law of that Prophet (peace be upon him) it was allowed to kill ants, and it was allowed to burn with fire, and he was not reproached on the principle of killing or burning, rather in going beyond one ant”.⁷⁸

He mentions that this was according to the law of that Prophet, who was allowed to kill ants, unlike ours [i.e. in Islam]. On the authority of Ibn ‘Abbās that the Prophet (peace be upon him) said: “Do not take anything with soul as object of triviality”.⁷⁹ On the authority of Sa’īd b. Jubayr, he said: Ibn ‘Umar passed by a group of people, who had set up a hen, and were shooting arrows at it. When they saw Ibn ‘Umar, they dispersed from around it. Ibn ‘Umar said: who did this? The Messenger of Allāh (peace be upon him) cursed the one who does this?⁸⁰

In this tradition, it is forbidden to use an animal for target practice; this prohibition indicates unlawfulness (taḥrīm) in Islamic law, while “the wisdom of such a prohibition is that: the animal suffers pain, squandering its worth, forgoing lawful slaughter, if of those that can be slaughtered, and its benefit, if of those animals that are not to be slaughtered”.⁸¹ In this, there is protection for the animal from meaningless interference, and mutilation (al-muthlah), which cause harm to the creature.

Another manifestation of Islam’s concern for the animal not to be harmed is that it forbade verbal abuse and cursing. This is because cursing is an infringement and aggression without lawful premise. Therefore, Islam was very strict on the matter of cursing; it is worth knowing that a curse is an invocation to be deprived of any good, and of Allāh’s Mercy. ⁸²

‘Umrān b. Ḥaṣīn said: while the Prophet (peace be upon him) was on one of his journeys—a woman from the Anṣār was riding on a she-camel (nāqah)—she became exasperated, and cursed it. The Messenger of Allāh (peace be upon him) heard that, and said: “remove what is on it, and set it free; for it is cursed”,⁸³ ‘Umrān said: it is as if I see it now passing between people, with no one interfering with it.⁸⁴

Al-Nawwawī said: “He said this to deter her and others; he had previously forbidden her and others from cursing; so she was punished by setting the she-camel free”.⁸⁵

Abū Dawūd reported a tradition on the authority of Zayd b. Khālid—on the prohibition of cursing animals—he said: The Messenger of Allāh (peace be upon him) said: “Do not curse the rooster, for indeed, it wakes [people] for prayer”.⁸⁶

This illustrates how Islam is concerned for animals not to be subjected to verbal abuse or to be cursed, and is quite strict on ensuring they are not harmed or aggrieved.⁸⁷

Islam’s concern for the animal was such that it imposed legal liability to compensate financially, i.e. diyyah, on one who blinds an animal; in the tradition: the Prophet (peace be upon him) judged the eye of the animal to be worth a quarter of its price.⁸⁸

He stated in “al-Hidāyah”: “we have what is reported that the Prophet (peace be upon him) judged the eye of the animal to be a quarter of its price; ‘Umar (may Allāh, the Exalted, be pleased with him) ruled similarly, because there are objectives (maqāṣid) other than meat, such as riding, adornment, carrying loads, and working”.⁸⁹

Also, reported in “al-Durr al-Mukhtār”: “liability in blinding the eye of the hen or goat destined for slaughter or other is the deficit to it, and in the butcher’s cow and camel, or donkey, mule, and horse: one quarter of the price”.⁹⁰

3- The domain of care for plants:

The Noble Qur’ān talked to us about plants, and drew our attention to the grand wisdom behind plants, in that plants are created by Allāh, whereby the signs of Divine Power are manifested, like in animals, humans, the earth, the heavens, and other features of Divine Creativity.

So what does the Qur’ān say about plants?

Allāh, the Exalted says: {“… And you see the earth dead and barren; then when We send down water onto it, it quivers and swells and sprouts with luxuriant plants of every kind”} (Sūrat al-Ḥajj 5)

Allāh, the Exalted also says: {“… And We send down water from the sky and make every generous species grow in it. This is Allāh’s creation. Show me what those besides Him have created! The wrongdoers are clearly misguided.”} (Sūrat Luqmān 10-11)

Allāh, the Exalted also says: {“As for the earth, We stretched it out and cast firmly embedded mountains in it and made everything grow in due proportion on it.”} (Sūrat al-Ḥijr 19)

Allāh, the Exalted also says: {“Have they not looked at the earth and seen how We have made every sort of beneficial species grow in it?”} (Sūrat al-Shu‘arā’ 7)

Allāh, the Exalted also says: {“… and sends down water for you from the sky by which We make luxuriant gardens grow – you could never make their trees grow. Is there another god besides Allāh? No indeed, but they are people who equate others with Him!”} (Sūrat al-Naml 60)

Allāh, the Exalted also says: {“And We sent down blessed water from the sky and made gardens grow by it and grain for harvesting, and soaring date-palms with layered spathes, as provision for Our slaves; by it We brought a dead land to life. That is how the Resurrection will take place.”} (Sūrat Qāf 9-11)

Allāh, the Exalted also says: {“Glory be to Him who created all the pairs: from what the earth produces and from themselves and from things unknown to them.”} (Sūrat Yāsīn 36)

Allāh, the Exalted also says: {“It is He who sends down water from the sky. From it you drink and from it come the shrubs among which you graze your herds. And by it He makes crops grow for you and olives and dates and grapes and fruit of every kind. There is certainly a Sign in that for people who reflect.”} (Sūrat al-Naḥl 10-11)

In the frame of the Qur’ān’s discourse regarding plants, it tells us about trees; Allāh, the Exalted says: {“The shrubs and the trees all bow down in prostration.”} (Sūrat al-Raḥmān 6)

{“Have you thought about the fire that you light? Is it you who make the trees that fuel it grow or are We the Grower?”} (Sūrat al-Wāqi‘ah 71-72)

{“He Who produces fire for you from green trees so that you use them to light your fires.”} (Sūrat Yāsīn 80)

{“Do you do not see how Allāh makes a metaphor of a good word: a good tree whose roots are firm and whose branches are in heaven? It bears fruit regularly by its Lord’s permission. Allāh makes metaphors for people so that they may pay heed.”} (Sūrat Ibrāhīm 24-25)

He told us about cultivation, saying: {“Do they not see how We drive water to barren land and bring forth crops by it which their livestock and they themselves both eat? So will they not see?”} (Sūrat al-Sajdah 27)

He told us about fruits, saying: {“It is He who made the earth a bed for you, and the sky a structure. He sent down water from the sky and by it brings forth fruits for your provision. So do not, knowingly, make others equal to Allāh.”} (Sūrat al-Baqarah 22)

Allāh says: {“… Look at their fruits as they bear fruit and ripen. There are Signs in that for people who have faith.”} (Sūrat al-An‘ām 99)

He also says: {“… Eat of their fruits when they bear fruit and pay their due on the day of their harvest, and do not be profligate. He does not love the profligate.”} (Sūrat al-An‘ām 141)

He says: {“… and made two types of every kind of fruit. He covers over day with night. There are Signs in that for people who reflect.”} (Sūrat al-Ra‘d 3)

And also told us about the orchards: {“It is He who produces orchard gardens, both cultivated and wild, and palm-trees and crops of diverse kinds, and olives and pomegranates, both similar and dissimilar. …”} (Sūrat al-An‘ām 141)

{“In the earth there are neighbouring pieces of land and gardens of grapes and cultivated fields, and palm- trees sharing one root and others with individual roots, all watered with the same water. And We make some things better to eat than others. There are Signs in that for people who use their intellect.”} (Sūrat al-Ra‘d 4)

He also told us about the gardens, saying: {“He Who created the heavens and the earth and sends down water for you from the sky by which We make luxuriant gardens grow – you could never make their trees grow. Is there another god besides Allāh? No indeed, but they are people who equate others with Him!”} (Sūrat al-Naml 60)

This is the Qur’ān’s discourse about plants and their elements, of trees, cultivation, fruits, orchards, and gardens; so what do we discover in this discourse?

First, all living things—principally plants—have male and female; even those plants that were thought not to have a male sex; however, it soon became clear that the plant has both sexes; so one plant may have both male and female reproductive organs on the flower, or on distinct parts of the stem, or on two separate plants. This is what the Qur’ān meant by the word “pair (zawj)”; indeed, pairing is the rule for all creation. Allāh says: {“And We created all things in pairs so that hopefully you would pay heed”} (Sūrat al-Dhāriyyāt 49), and {“… and made two types of every kind of fruit...”} (Sūrat al-Ra‘d 3).

Hence, fruit is only produced after a process of fertilisation involving the plant’s male and female gametes, as is the case for humans and animals.

Second, the plant sexual pair (zawj) is described one time as “luxuriant (bahīj)” and another time as “noble (karīm)”; Allāh, the Exalted says: {“… and sprouts with luxuriant [plant] pairs of every kind”} (Sūrat al-Ḥajj 5), and {“… and make every noble [species] pair grow in it”} (Sūrat Luqmān 10).

Plants have an emotive aesthetic function, invoking joy, relaxation, and pleasure in the self; plants are also noble, or indeed elevated by life that has its source from Allāh, the Most Noble.

Therefore, we must receive Allāh’s creation with the deserved appreciation, joy, and celebration, not with disdain, heedlessness, and negligence.

Third, this plant that we may not notice, except once or a few times, is a demonstration of Allāh’s signs and creation; Allāh, the Exalted says: {“… There are Signs in that for people who use their intellect.”} (Sūrat al-Ra‘d 4), and {“… There are Signs in that for people who use their intellect.”} (Sūrat al-Naḥl 11). In this way, the Qur’ān renews human emotions through numerous views and scenes into the universe and self.

Each time you look at the plant, you find a sign of Allāh’s incomparable making.

Fourth, the plant in all its elements prostrates to Allāh, and glorifies His mention, as does every one of Allāh’s creatures; Allāh, the Exalted says: {“The stars and the trees all bow down in prostration.”} (Sūrat al-Raḥmān 6)

The expression using the continuous verb tense (fi‘l al-muḍāri‘) alludes to the continuation of the act of prostration. Indeed, everything in this universe is subjugated to, prostrates to, and worships Allāh. He, the Exalted, says: {“Do you not see that everything in the heavens and everything on the earth prostrates to Allāh, and the sun and moon and stars and the mountains, trees and beasts and many of mankind; and many of those who inevitably merit punishment…”} (Sūrat al-Ḥajj 18)

The plant glorifies and prostrates in a way that we cannot comprehend; Allāh, the Exalted, says: {“… There is nothing which does not glorify Him with praise, but you do not understand their glorification...”} (Sūrat al-Isrā’ 44)

Fifth, the plant is not merely a source of food, but also spiritual joy; Allāh, the Exalted, says: {“… Look at their fruits as they bear fruit and ripen. There are Signs in that for people who have faith.”} (Sūrat al-An‘ām 99)

The Divine signs in pollination, and the fruit’s emergence, maturing, and taste.

How many of us have reflected on these meanings, while eating seeds or fruit of various kinds?

With these examples, the Qur’ān remains novel in perpetuity, because it refreshes human emotions through views and scenes of universe and self.

The Qur’ān connects the heart to the sights of the universe, and attracts dormant emotions and hardened hearts to the exquisiteness of Allāh’s creation dispersed everywhere around the human being. So that, mankind may explore the living universe with conscious heart; witnessing Allāh in its wonderful and intricate making; sensing Allāh, every time their sight falls on one of His fine creations; connecting to him through all His creatures; and are self-conscious as they senses His existence at every moment of night or day.

The human being feels he is one of Allāh’s slaves and creatures, linked to laws that govern them all, and has a special role in this universe.

In the creation around us, there are many scenes of universe, and of worship.

We have explored those scenes of universe, but not worship, which are those when Muslims join together in Friday congregation, in Ramadan, and rites of pilgrimage… etc.

Rights of plants

Before presenting these rights, we mention two things:

First, the plant is not just a source of food for people and their livestock, but is a source of supply of the pure air we need; it provides us with the oxygen vital for life to continue.

It is also a source of spiritual joy, where the soul delights in it and is contented. Therefore, the Noble Qur’ān continues to invite us to contemplate on plants, so as to gain these benefits; Allāh, the Exalted says: {“… Look at their fruits as they bear fruit and ripen. There are Signs in that for people who have faith.”} (Sūrat al-An‘ām 99)

Second, the plant, as we are told by the Qur’ān, is a worshipping creature, glorifying Allāh. Do you not see Allāh’s saying: {“The stars and the trees all bow down in prostration”} (Sūrat al-Raḥmān 6)

And: {“Do you not see that everyone in the heavens and everyone on the earth prostrates to Allāh, and the sun and moon and stars and the mountains, trees and beasts and many of mankind…”} (Sūrat al-Ḥajj 18)

The reference to trees here indicates that the plant prostrates to Allāh, but we do not know how.

The plant plays a major role in human life; it provides food and pure air, which ensures health and vitality. It is also source of enjoyment, when humans gaze upon it.

Plant rights are as follows:

First: the right to plant or cultivate:

The plant does not belong to us, but is part of nature, of the universe in which we live. We do not in reality plant, but we till the earth, and prepare it for planting. The true Planter is Allāh, as He says, Most High: {“Have you thought about what you cultivate? Is it you who make it germinate or are We the Germinator?”} (Sūrat al-Wāqi‘ah 63-64)

The human, who plants, does no more than place seeds into the ground, after preparing it for planting, then waters it, and can do no more than that; it is Allāh who makes plants grow and draws them out of the ground.

Allāh, the Exalted, says: {“And We sent down blessed water from the sky and made gardens grow by it and grain for harvesting.”} (Sūrat Qāf 9)

Allāh, the Exalted, also says: {“It is He who made the earth a cradle for you and threaded pathways for you through it”} (Sūrat Ṭāhā 53)

He says, Most High: {“It is He who made the earth a cradle for you and threaded pathways for you through it and sent down water from the sky by which We have brought forth various different types of plants. Eat and pasture your cattle. Certainly there are Signs in that for people of sound intellect.”} (Sūrat Ṭāhā 53-54); also, {“Good land yields up its plants by its Lord’s permission, but that which is bad only yields up scantily. In this way We vary the Signs for people who are thankful.”} (Sūrat al-A‘rāf 58), {“He Who created the heavens and the earth and sends down water for you from the sky by which We make luxuriant gardens grow – you could never make their trees grow. Is there another god besides Allāh? No indeed, but they are people who equate others with Him!”} (Sūrat al-Naml 60), and {“It is He who sends down water from the sky. From it you drink and from it come the shrubs among which you graze your herds. And by it He makes crops grow for you and olives and dates and grapes and fruit of every kind. There is certainly a Sign in that for people who reflect.”} (Sūrat al-Naḥl 10-11)

Farming is one of the righteous actions, for which Allāh, the Exalted, rewards those engaged in it. The Prophet (peace be upon him) said: “Any Muslim who sets a plant in soil, or sows a crop, from which bird, human, or animal eats, but it counts as charity given by him” as in Ṣaḥīḥ al-Bukhārī.⁹¹

In the narration reported by Muslim: “but it is charity for him to the Day of Resurrection”⁹²

This signifies that the reward of the farmer continues, while the plant or cultivation is being eaten from, even if the farmer or planter dies, and even if these plants pass into someone else’s ownership.

This reward is not solely for the landowner, but those who plant it have reward equal to that of the landowner.

In another tradition: “Whoever owns land then let him cultivate it, and if he does not do so then let his brother cultivate it”,⁹³ i.e. to rent it to the one who will cultivate it. The important thing is that the land does not stay uncultivated.

Second: the right to be tended to:

Tending cultivation has many forms, of which we mention:

Plants like any living thing, if tended to and cared for, then it will grow and bear fruit; however, if we do not care for it, then it will wilt, dry out, and turn into chaff. Therefore, it must be cared for constantly.

- Tilling the ground well, to eliminate weeds harmful to the plants.

- Watering it by any means of irrigation.

- Cutting off those boughs and branches that are diseased or dead.

Third: the right to maintain and conserve:

The Prophet (peace be upon him) says, as reported by Imām Aḥmad in his “Musnad”: “whoever establishes a tree, and is patient in preserving it, and tending to it until it gives fruit, then for every [living] thing that eats of its fruit, he shall have recorded as charity with Allāh, the Exalted”.⁹⁴

In another tradition: “He who cuts down a sidr (Ziziphus) tree, then Allāh will throw him headfirst into the hellfire”.⁹⁵ Explaining this tradition, Abū Dawūd said: “meaning cutting down a sidr tree in a hot desert plain, under which wayfarers and livestock shade themselves, without reason and as an injustice, then Allāh will cause him to hang his head, and then throw him headfirst into the hellfire; this is either a report or a supplication, and for this reason, the Prophet (peace be upon him), used to advise Muslim soldiers during battle not to cut down trees or devastate crops”.

Fourth: the right to protection:

Here I ask, do plants also need protection?

Yes, they need protection from human aggression, chaos, and barbarity; indeed, they are attacked in the roads and squares, and other places, without remorse or sense of responsibility.

Sometimes, they level the ground, turning it from a green plot to a bare one, so that some may sell it for a high price.

In the last fifty years, we have destroyed large tracts of green land, to build unauthorised residential compounds; killing the green belt that used to surround Cairo. This rings alarms of an impending national disaster.

Advanced countries provide full protection to trees and plants in two ways:

Education: educating people and informing them of the importance of preserving this wealth.

Legislation: by punishing those who trespass against these trees. In America, some people brought a case to the courts against a company that wanted to turn a green area in California into an amusement park and ice rink; they won the case and the project was stopped.

This is what we lack in Egypt, in that the laws relating to protecting the environment and plants are enforced.

In this regard, I wish to remind people of an industry that did not exist fifty years ago, and is now perhaps the fastest-growing industry globally; this is the eco-tourism industry.

Travelling to see deserts, wide jungles, and even coral reefs under the sea, etc. comes within the frame of paying in return for enjoying highly valuable places and things.

Greenery now competes with archaeological and historic sites in attracting those wishing to enjoy beautiful natural scenery.

4. The domain of caring for water:

The word, water (mā’), appears in the Qur’ān 63 times, a number that indicates the age of the Prophet (peace be upon him)!!

Regarding rights relating to water, these are as follows:

The first right: prohibition of polluting it:

The Messenger of Allāh (peace be upon him) said: “Protect yourselves from the three curses: defecating in the watering places, the middle of the way, and the shade”.⁹⁶

This prohibition encompasses two matters:

First: Protecting water resources from all forms of impurity (najāsah), whether due to defecation in them, or running impure, polluted water into them.

Second: relates to removing harm from people’s way, by avoiding those places where they pass or rest, whether shade of tree, wall or otherwise.

On the authority of Abū Hurayrah, may Allāh be pleased with him, the Messenger of Allāh (peace be upon him) said: “You should not urinate in the standing body of water, which does not flow, then wash in it”.⁹⁷

The second right: the prohibition of excess and profligacy in use:

The prohibition on profligacy is not intended solely for eating and drinking, as mentioned in His saying {“… and eat and drink but do not be profligate. He does not love the profligate”} (Sūrat al-A‘rāf 31)

The prohibition of profligacy here is general to include any consumption, whatever its kind, material, or reason, even if it is in the acts of ritual worship, such as ablution to perform prayer.

Ibn Mājah reports that the Prophet (peace be upon him) passed by Sa‘d b. Abū Waqāṣ, as he was performing ablution. He said to him: “What is this profligacy?” So he responded: Is there profligacy in ablution? He said: “Yes, even if you were on a flowing river”.⁹⁸

Also, Abū Dawūd reported on the authority of ‘Abd Allāh b. Mughaffal, he said: I heard the Messenger of Allāh say: “There will be from amongst this nation [of Muslims] people who will transgress in purification (ṭahūr) and supplication (du‘ā)”.⁹⁹ The meaning of transgress in purification is that they exceed the reasonable amount in using water, and go beyond the lawful moderation into prohibited profligacy.

A Bedouin came to the Prophet and asked him about ablution. He showed him how to perform it, washing each part of the body three times. Then he said: 'This is the ablution, and whoever does more than this, has abused, transgressed the limits or committed an injustice.”.¹⁰⁰

Of the forms of non-profligacy, is to consume water according to priority of use; for example, if there is need for human or animal to drink, then drinking is given precedence over all else, even if it were performing ablution form the purpose of prayer. In that case, those wishing to pray should perform dry ablution (tayammum), or use seawater, so as to conserve their drinking water.

Abū Hurayrah reported that a man asked the Prophet (peace be upon him) saying: we ride on the sea, and carry little water with us. If we use it for ablution then we go thirsty; can we perform ablution with seawater? The Messenger of Allāh (peace be upon him) said: “Its water is a means of purification and its dead meat is permissible”.¹⁰¹

The third right: the right of preserving it from germs and microbes:

This is because water or food left exposed to the air allows germs and microbes from mixing with it, and hence, it becomes harmful to humans.

Al-Bukhārī reports through the chain of narrators that the Prophet (peace be upon him) said: “Extinguish the lamps when you go to bed; close your doors; tie the mouths of your water skins, and cover the food and drinks, even with a stick you place across the container.”¹⁰² The meaning of “khamirū al-āniyah”, i.e. cover the container, so that insects, germs, and microbes do not enter.

5. The domain of care for the road

The public road has a significant position in Islam; Allāh has granted it a right, or rather rights, like other things, given the benefits relating to the collective of people.

These are five rights: the right to sit on the road; the right to walk or pass on it; the right to level it; the right to maintain it; and the right to decorate it.

However, before I launch into a detailed explanation of these rights, I want to point out that the rights of our roads have been lost, and have become source of great sorrow, misery, and onerousness. Here I ask everyone to compare between the etiquettes and teachings of Islam in the domain of caring for the road, where people pass, and our reality. They need to ask: how can we restore sanctity to the road and those who use it?

First: the right to sit on the road:

In principle, sitting on the road is discouraged from the perspective of Islamic law, given the discomfort to those using it, both men and women. Moreover, it exposes the person to the risk of committing unlawful things, and requires one to bear the burden of responsibilities that perhaps they are not capable of bearing. Therefore, the Prophet (peace be upon him) warned of sitting on the road in people’s path; he said: “Beware! Avoid sitting on the roads." The people said, “There is no way out of it as these are our sitting places where we converse.” The Prophet (peace be upon him) said, “If you must sit there, then observe the rights of the way.” They asked, “What are the rights of the way?” He said, “These are the lowering your gazes (on seeing what is unlawful to look at), refraining from harming people, returning greetings, and commanding good and forbidding evil.”¹⁰³

In this way, Islam makes the Muslim work for people’s comfort, eliminating any harm that obstructs their way, and causes them injury, in wealth or body.

Some of the kinds of harm that should be highlighted:

- Causing loud noises.

- Uttering vile or vulgar words.

- Throwing water, rubbish, or waste on the road, and digging holes and causing breaches on its surface.

- Spitting.

- Placing stones or metal obstructions, to prevent others from benefiting from the road.

- Setting up rock or asphalt blocks or so-called speed bumps that do not meet the proper specifications.

- Displaying nude images that hurt sensibilities.

- Burning paper or waste producing deadly fumes.

Second: the right to walk or pass:

Walking on, or using, the road is subject to certain etiquettes, which are the same as the etiquettes of sitting on the road, to which the following may be added:

1. Humility, and rejecting arrogance; Allāh, the Exalted, says {“The slaves of the All-Merciful are those who walk lightly on the earth and, who, when the ignorant speak to them, say, ‘Peace’.”} (Sūrat al-Furqān 63)

Allāh, the Exalted, says {“Be moderate in your tread and lower your voice. The most hateful of voices is the donkey’s bray.”} (Sūrat Luqmān 19)

Allāh, the Exalted, says {“Do not strut arrogantly about the earth. You will certainly never split the earth apart nor will you ever rival the mountains in height.”} (Sūrat al-Isrā’ 37)

2. Not disturbing others using the car horn, radio, or any other means.

3. Not driving in the opposite lane.

4. Not entering a lane, unless satisfied that it is safe to do so.

5. Checking that loads placed on the vehicle are properly secured for the safety of others.

6. Adhering to the legal speed limit, for the safety of driver and those in the vehicle.

Third: the right to level the road:

What is meant here is to pave the road, and ease travelling over it, making passage a boon rather than a penance, and enjoyment not torture.

Humankind has known many means by which roads were made easy to travel over, enjoyable, and beneficial. We cannot settle and develop an area without paved roads. I witnessed in some countries that the government begins by preparing utilities like roads, water and electricity, after that people begin to build. As work is a religious obligation, then all those things that assist in working become religious duties as well; all that which leads to a duty is itself a duty, according to the accepted legal maxim. Hence, it is an obligation on rulers to level the road. Here I remind people of the report that ‘Umar said: if a small goat tripped up in the land of Iraq, then I would be answerable on the Day of Resurrection; why did you not level the road, ‘Umar?!

If it is the ruler’s duty to level the road, then it is people’s duty to look after it.

Levelling the road includes:

1. Supplying it with the necessary lamp posts.

2. Providing signs to guide road users regarding directions, speed limits, pedestrian crossings, etc.

Fourth: the right to maintain the way:

The road, like anything, needs maintenance and care through inspection; repairing areas that had failed or fallen apart; specialists call this process raising road efficiency, to ease traffic flow over it. I witnessed in some countries that when they want to perform road maintenance, they lay another road close to the one they aim to repair. Thus people use the temporary road until the original one has been repaired. Repairing the road is no less important than levelling the road, because neglecting repair of the road leads to waste of money, and causing harm to others.

Fifth: the right to decorate the road:

Islam is a religion that invites to beauty and beautification; indeed, Allāh is Beautiful and He loves beauty. The beauty we point to here is that of the road.

Beautifying the road is accomplished as follows:

1. Good planning of the road, so that there are no surprises.

2. Keeping it clean.

3. Planting both right and left sides with trees, flowers, and palm trees, where possible.

4. Using electric signs.

5. Inviting to, and glorifying Allāh.

6. Writing the Prophetic supplication for travelling.

7. Having respectable rest areas, especially on long routes, for people to rest, and regain their vitality.

8. Paying attention to road cleaners, in all aspects, so that their appearance is civilised.

9. Cleaning of the roads and streets should be performed at night when traffic is lighter, and not in the morning, when people are going to work.

6. The domain of caring for soil:

Soil also has an important role in care for the environment; therefore, Islam called for, and encouraged taking care of the soil. The Prophet (peace be upon him) said: “he who revives dead land (mawāt), then it is his” [in ownership].¹⁰⁴ Reviving dead land means to cause growing life; the soil has been called dead due to the negation of deriving benefit, while reviving it—as stated in Ibn ‘Ābdīn’s Ḥāshiyah—is by construction, planting, tilling or ploughing (karb)¹⁰⁵, or irrigation.

This care reaches another level in that “whoever staked out a land, i.e. prevented others from it, by putting a marker, of stone or other, then neglected it for three years, then it would be given over to another, who when he accepts it, then has more right to it, even if he did not own it, because possession is through revival and development, not merely laying down a stone marker”.¹⁰⁶

7. The domain of caring for buildings or what is termed fiqh al-‘imārah

The domain of buildings and architecture is one of those that is testimony to the attention granted by Islamic jurisprudence to everything connected to the environment, whether closely-related or not. The issues of this domain were dispersed across the different chapters of jurisprudence (fiqh), and was also documented in the books on novel issues (al-nawāzil), fatwa, court judgements (al-qaḍā’) and supervision of public rights and morals (al-ḥisbah). Some scholars even authored dedicated texts on this; for example, “al-Qismah wa uṣūl al-arḍīn (Division and principles of lands)” by Abū al-‘Abbās al-Farsaṭā’ī, who was born in the middle of the 5th Hijri Century.

Jurists based their rulings on buildings, on a set of texts and legal maxims related to matters of buildings and residences. This included the Prophet (peace be upon him) saying: “no harm shall be inflicted or reciprocated”,¹⁰⁷ as well as the legal maxim on custom (al-‘urf).

We will illustrate the effect of this maxim on the urban movement through the example of the harm and effects on relations between neighbours, arising from creating an aperture (window).¹⁰⁸

In the context of the principle of “reviving land”, people follow each other in construction. So one of them creates an aperture that overlooks an empty parcel of land, then another person comes along and builds on the hill. Now that existing aperture overlooks this new house, infringing on its privacy. The jurists have agreed that the aperture has the right to remain and continue, while the owner of the new house should protect himself from the harm of that window, by raising the height of his wall, for example.

In “al-Mudawwanah al-kubrā”: “Do you not see that he had an old opening, or old door overlooking his neighbour that is of no benefit, and is harmful to his neighbour, is he [the judge] to compel him to close this for his neighbour? He said: he does not compel him to do that, because this is a matter that he did not cause newly for him”.¹⁰⁹

However, in the case of a new opening that harms neighbours, the majority of opinions stipulate that the harm be eliminated by closing that opening, if the injured party protests. Imām Saḥnūn asked Imām Ibn al-Qāsim: “Do you see that a man wants to open an aperture in his wall, a window or door, overlooking his neighbour, which is a harm to his neighbour; the one who made the opening did so in his own wall, is this to be stopped according to Mālik’s opinion?” He said: “It was reported to me that Mālik said: he may not do something new that is injurious to his neighbour, even if it was done to his property”.¹¹⁰

Indeed, it was neighbours’ right to compel them to do so through litigation; the records of Shariah Courts are replete with many incidents that highlight the solidarity of the people in the area or neighbourhood in confronting the offenders among them.¹¹¹

The legal principles of injury—no harm shall be inflicted or reciprocated (lā ḍarar wa lā ḍirār), and custom—what is customary is a legal ruling (al-akhdh bi al-‘urf), were applied to rulings on buildings. This led to development of the principle of owning injury (ḥiyāzat al- ḍarar). This means that those who are first to construct acquire a number of concessions that the subsequent neighbour must respect, and take into consideration when building his residence. Thus, the earlier house shapes the later one from the architectural perspective, as a result of owning the harm. The earlier property¹¹² controls many rights, which others must respect when they come to build; this in addition to the rights mandated by the Islamic law in the domain of urban organisation. Hence, both these [rights]—together—led to a stable urban environment, whereby the community of users reached a stable agreement on the form of roads they used; this was then difficult to violate by new buildings.

Second area of enquiry

Juristic applications in caring for the environment

This comprises two areas of enquiry:

The first area of enquiry: matters related to public injury and private injury

The second area of enquiry: matters related to environmental damages

The first area of enquiry

Matters related to public injury and private injury

Jurists’ interest in the environment manifested on both theoretical and practical levels.

On the theoretical level, we find that jurists tended to matters of the environment through books on the supervision of public rights and morals or ḥisbah, and Islamic public governance (al-siyāsah al-shar‘iyyah). In the domain of ḥisbah, we find the book, “Nihāyat al-rutbah fī ṭalab al-ḥisbah” at the head of the list of such works. This was authored by ‘Abd al-Raḥmān b. Muḍar b. ‘Abd Allāh al-‘Adawī al-Shayzarī al-Shāfi‘ī (d. 589AH), which he divided into 40 chapters.¹¹³

Muḥammad b. Muḥammad b. Aḥmad renowned as Ibn al-Ukhuwah al-Qurashī al-Shāfi‘ī (d. 729AH) followed in the footsteps of al-Shayzarī and named his book, “Ma‘ālim al-qurbah fī aḥkām al-ḥisbah”.¹¹⁴

Also, Muḥammad b. Aḥmad known as Ibn Bassām, who lived in Egypt before 844AH; he chose the same name as al-Shayzarī’s for his book, i.e. “Nihāyat al-rutbah fī ṭalab al-ḥisbah”. He also reproduced word-for-word the latter’s Muqadimmah (Introduction), but added chapters based on his experience of ḥisbah, which enhanced the book’s importance and gave it a distinct character.¹¹⁵

Nevertheless, books on ḥisbah contained diverse issues related to the necessity of preserving public health. This will be clear after we present these issues, which we shall address in order, as follows:

The first issue: on ḥisbah over bakers.

The second issue: on ḥisbah over cooks.

The third issue: on ḥisbah over slaughterers and butchers.

The fourth issue: on ḥisbah over public baths.

The fifth issue: on ḥisbah over the evils of markets.

The sixth issue: on harm to health.

The seventh issue: preventing foul smells.

The eighth issue: preventing noise.

The ninth issue: leakage of dangerous materials into other peoples’ property.

The first issue: on ḥisbah over bakers:¹¹⁶

Their shop ceilings should be high, and doors open; there should be wide openings in the roofs to allow smoke to escape, so that people are not harmed. Once the baker finishes heating the oven, he must wipe down the interior with a clean rag, then begin baking. The person supervising public rights and morals or the muḥtasib must write down the names of all the bakers and the location of their shops in his ledger, because need dictates that he must know them. Furthermore, he should order them to clean and cover all water vessels, as well as wash the utensils used for preparing the dough, and those used to cover, and carry the bread. The person kneading the dough should not do so with his feet, knees, nor elbows, because this is disrespectful to food, and perhaps some of the sweat from his armpits or body could drip onto the dough; therefore, he should not prepare the dough unless he is wearing a sleeveless overall or apron, and should also cover his mouth with a bandana, because he could possibly sneeze or speak, where some of his saliva or mucus may fall onto the dough. He must also tie a white cloth across his forehead, to prevent anything of his sweat from dropping onto the dough. He should shave the hair of his arms to prevent any of it from getting into the dough. If he prepared the dough during the day, then let someone be with him to fan away the flies. All this after repeatedly passing the bread flour through fine sieves.

The second issue: on ḥisbah over cooks:¹¹⁷

They should be ordered to cover their pots to protect from flies and vermin, after washing them in hot water and plant-sourced soda ash (ashnān). They must not cook the meat of goats mixed with that of sheep, nor camel meat mixed with that of cows, to prevent a convalescing patient from relapsing as a result. The muḥtasib must be alert to the abundance of stew and little meat, because many of them drain off the fat, and pour it into the cooking pot, where it floats on the face of the food, deceiving people into thinking that it contains a lot of meat.

The third issue: on ḥisbah over slaughterers and butchers:¹¹⁸

In performing the duty of ḥisbah over slaughter men and butchers, it is recommended that the butcher is a sane Muslim over the age of puberty, who invokes Allāh’s name over the animal to be slaughtered, facing the direction of prayers (Qiblah). He should slaughter camels in their seated position with their forelegs tied accordingly, while cows and goats are slaughtered on lying on their left side; all these were mentioned in the Prophetic Sunnah (peace be upon him). He should not drag a goat violently by the leg, nor slaughter with a blunt blade, because this is torture for the animal. The Messenger of Allāh (peace be upon him), prohibited torturing an animal. He is obliged to slaughter by cutting through the jugular, oesophagus, and throat. He must not begin to skin the animal until it is cold, and the spirit has left the body; Umar b. al-Khattab (may Allāh be pleased with him) ordered a crier to announce in Madinah: “the slaughtered goat shall not be skinned until it is cold [i.e. completely dead]”.

As for butchers, the muḥtasib must stop them from putting out the meat cuts so that they jut out beyond the limit of their shop terraces. Rather, these must be tucked well within the limit of their terrace and shop corners, so that people’s clothes do not touch them, and are harmed. They are also to be instructed to separate goat meat from sheep meat, and not mix one with the other. They should mark goat meat with saffron, so that it is clearly distinguished from others. The goat tails shall remain attached to the hindquarters until all is sold. Goat meat shall be distinguished by the white colour of its fat, and fine rib bones. They must not mix goat meat with sheep fat, nor rich meat with one that is poor in quality. Goat fat is identified by its whiteness and clarity, while sheep fat is a high yellow.

The fourth issue: on ḥisbah over public baths:¹¹⁹

The muḥtasib must order them to wash, sweep, and clean the baths with purifying water, other than the water from washing. They should do so repeatedly throughout the day. They should scrub the floor tiles with rough materials, to prevent the residues of ziziphus (sidr), mallow (khiṭmī), and plant soda ash (ashnān) from sticking to the surface, causing people’s feet to slip. They should wash the water tank from the accumulated dirt in its channels, and the sediment settled at its bottom once a month; this is because if left for more than that, the water within will change in taste and smell. If the person in charge wished to climb to the tank to open water into the pools, then he must wash his feet with water, and then climb, because he may have waded through the used bath water. He should not block the pipes with hair from hairdressing, but should do so with clean natural sponges and rags, so as to avert any juristic dispute. He should burn incense twice a day, especially if he starts to clean and sweep the baths.

Once the bath cools down, the person in charge must pass through with the incense of lavender (khuzāmā), because its smoke protects the air, and improves its smell. The used bathing water must not be blocked in the channels of the baths, so that its smell does not pervade. He should not allow shoemakers and others from dyeing hides in the baths, because people are perturbed by the smell of tanning. Moreover, the person with leprosy (al-majzūm) or vitiligo (al-abraṣ) should not be allowed into the baths.

The bath should make towels or loincloths available for rent or loan to people, because strangers and the poor may need this. The muḥtasib should command them to open the baths in the hours before the Morning Prayer (al-saḥar) due to people’s needs to purify themselves before the ritual prayer. The caretaker is compelled to guard people’s clothing, and if any are lost then he is deemed liable, according to the verified opinion of the school of jurisprudence of al-Shāfi‘ī (may Allāh be pleased with him).

The bath hairdresser must be light in body and athletic, as well as proficient and experienced as a barber. His blade must be wetted and sharp, and he must not approach the head and the roots of the hair directly. The hairdresser must not eat anything that will change the smell of his breath, such as onions, garlic, leek, etc., so that the smell of his breath does not cause discomfort for people as he attends to them.

He must cut the hair on the forehead and temples as appropriate, and must not cut the hair of a boy without the permission of his guardian, nor cut the sideburns of the one lacking facial hair (amrad) nor the beard of an effeminate man (mukhanath). The muḥtasib must order the massager to rub his hand with pomegranate shells to roughen them (38a)[EI1] to drive out grime, and bring pleasure to the person. He must prohibit massaging with legumes and lentils in the baths, because this is food and it is not permitted to disrespect it.

The muḥtasib must inspect the baths many times daily, and do what we have mentioned. If he sees anyone exposing his private parts, then he should punish them for doing so. This is because exposing private parts is unlawful (ḥarām), and the Messenger of Allāh (peace be upon him) cursed both the one looking and one looked upon,¹²⁰ and Allāh knows best.

The fifth issue: on ḥisbah over the evils (munkar) of markets:¹²¹

Regarding narrow alleys, none of the market sellers is permitted to sit there, or extend his shop terrace beyond the edges of the roof awnings out into people’s passage, as this is a violation, and causes distress to pedestrians. Therefore the muḥtasib must remove it, and stop this from happening, due to the detriment it causes to people. Similarly, extending shop dividers, wings, planting trees, setting up a stall table in a narrow alley are evils that must be eliminated; unless, he sets up his stall table, or plants a tree, at the door of [his] house.

The muḥtasib must forbid that fire wood loads, camel loads of hay, leather water carriers, baskets of rubbish, ash, loads of grass, and thorns, tear people’s clothes, as this is an evil. Otherwise, these are to be tied down, and bound together so that they do not tear anyone’s clothes. If possible, these must be taken to a more spacious place, but they may not be forbidden, because of people’s needs for these and other goods to be brought to the markets, and given the harm to people, if not. The muḥtasib must order carriers of fire wood, hay, tiles, sulphur, turnips, watermelon, and straw, if they stopped in the market squares to unload them from the backs of the pack animals. This is because standing stationary with these loads on the animals’ backs is harmful, and is torture for them. The Messenger of Allāh (peace be upon him) forbade torturing an animal for other than [slaughtering] for food.¹²² The muḥtasib should order the market people to sweep and clean the accumulated rubbish, and whatever causes detriment to people, because the Prophet (peace be upon him) said: “no harm shall be inflicted or reciprocated”.

No one is allowed to look on neighbours from roofs or windows, and men should not sit in the ways taken by women, without need; those who do anything of the kind must be punished by the muḥtasib.

The sixth issue: on harm to health:¹²³

Patients with contagious diseases are to be compelled to take the necessary measures to prevent the spread of these diseases or transmission to others. In “Kashf al-qina‘ ” it is stated: “Lepers are not permitted to mix with healthy people generally, nor with any particular healthy individual without the latter’s permission. The ruler must prevent them from mixing with healthy people by providing them residence in a specially segregated area, etc. If the ruler or a leper refused to do so, then they are sinful; and if they persisted in not complying with their duty, then they are considered to have transgressed (fasaq)”.¹²⁴

The action of both the patient and ruler is considered under infringement (ta’adī), which is appropriate in applying liability on both, if anyone becomes ill due to their disobedience of their duty under Islamic law. This is evidence is that it is not a condition that the action leading to harm be of the material kind. Accordingly, the imposition of liability on those who own animals infected with contagious diseases, and are located next to other farms dedicated to raising animals and birds, if the same diseases are transmitted to them, and the principle of cause (al-sababiyyah) was proven by expert testimony.

The seventh issue: preventing vile smells:¹²⁵

The opinion of the late Ḥanafī scholars is to prohibit taking up anything whose smell harms a neighbour. It would appear that the Mālikī and Ḥanbalī scholars were also concerned to stipulate this, and do not permit a person to establish a tannery, or “open a toilet without covering it close to his neighbour, or anything whose smell is repellent, because the strong stench burns the nostrils, reaches the gut, and harms the human being; it is the meaning of the Prophet’s (peace be upon him) saying: ‘whoever eats of this vile tree, then let them not come close to our mosques, and discomfort us with the smell of garlic’. Hence, any smell that is repellent is to be prohibited for this reason. He said: and this is the legal practice”.¹²⁶

In “Ḥāshiyat al-Dusūqī”, the stipulation on forbidding taking up anything that has “smoke like a bath, baker’s oven, cook’s kitchen, or kiln, or a smell like tanning, slaughter house, evisceration station… Due to the harm caused by this. What is intended of those mentioned, are those that are newly established, not pre-existing”.¹²⁷

Whatever effects the person with cough [i.e. having a respiratory condition] of harm and shortness of breath due to smoke, then his liability is on whoever caused the smoke.¹²⁸

If the smell of cooking is harmful to a pregnant woman, then preparing similar food must not take place. If they were aware of her being harmed by this smell, and caused harm to her or her pregnancy, then the sin and liability lies on the cook.

English law did not recognise this type of harm, except in the second half of the 19th century. Its legal theorists did not look to apply prohibition on non-specific or unquantifiable harms, except at that time.

One of the landmark cases in this regard is Benjamin v. Storr (1874CE); the plaintiff owned a coffee house in an abbey garden, while the defendant regularly left his horses and carriage in front of the coffee house. The plaintiff commenced an action in the courts for damages suffered due to the horses and carriage obstructing the road in such a way that blocked traffic, prevented light from entering the coffee house, and drove away customers due to the vile smell of the dung dropped by the horses. The court found in favour of the plaintiff and awarded compensation for these damages.

The eighth issue: preventing noise:¹²⁹

Normal and non-harmful sounds, which people typically endure, are not prohibited. However, if the harm resulted from a sound that cannot typically be endured by people, due to its strength, continuous nature, or because it combined with other harms that magnify its effect, then these are prohibited. This is deduced from the following texts: in “al-Ṭabṣirah”, Ibn ‘Atāb said: the scholars of our town, both past and present, have disputed over the man who establishes in his house or similar, that which has sound and echo that is annoying and detrimental to their neighbour, such as an ironmonger; some said: he is to be forbidden if he worked on it night and day. Some said: he should not be prohibited. Ibn Sa‘īd said: that which our scholars have agreed upon is that work should be prohibited at night, if harmful to his neighbour, and is not forbidden during the day; as stated by Ibn ‘Abd Rabuh.¹³⁰

In “Ḥāshiyat al-Dusūqī”, sounds not to be prohibited are thumps from pounding textiles, and those emanating from whitening textiles, iron working, and incense burning… the sound of boys in a school under the instruction of their teacher, rather than their sounds while playing, where they are to be forbidden. Also, under this, is the music teacher, sound of parrot adopted for screeching, and pigeons adopted for cooing. On face value, the author is of the opinion that this is not forbidden even if the sound is loud and continuous like that of thumping. In “al-Mawwāq”, it is the opposite, and that the rationale for not forbidding it, is if it was not a strong sound and not constant, otherwise they are forbidden from doing so.¹³¹

Mālikī jurists have stipulated that a person is forbidden to establish a stable for animals at his neighbour’s door, even if it was within his property; “due to its urine, manure, and movement day and night, preventing people from sleep”; also the mill, ironmonger’s bellows, and the like.¹³²

These texts guide to the following meanings:

There is a level of noise and unpleasant sounds that are not considered to be abusive, and are not prohibited; this is if these were usual and people were used to them; moreover, they are linked to activities that are vital to the interests of society, such as the sound of children at school, and the sounds of trimming and dyeing clothing.

There is noise where the resulting harm is disproportionate to the interests secured, by which it is right and proper to prevent these, such as the sounds of children playing, and birds kept for enjoyment.

Noises that cause harm to people in such a way that they cannot endure, are also forbidden due to their severity, persistence, and repetitiveness at inappropriate times, such as those arising at night, preventing people from sleeping.

Dr Siraj presented that English courts considered noise and foul smells, until the end of the 19th century among those harms that must be endured and forgiven. This was to avoid paving the way to dispute, and fearing the difficulty of estimating compensation. However, it took the path of recognising the right of injured parties to receive a court order that prevents these from that date onwards.

The ninth issue: leakage of dangerous materials into other persons’ property¹³³:

If the rule was that no one is allowed to “establish something that is harmful to his neighbour”,¹³⁴ then it is also not permitted to possess dangerous substances that may leak and damage land belonging to a neighbour, unless they take the necessary measures to prevent such harm.

This is explained in “al-Ṭabṣirah”, in relation to conveying water over aqueducts, where the person who established them did not take the precautions, as a result they are liable. Also, if they took precautions in building the aqueducts, but forgot to release the water until the structure collapsed, whether in whole or part, and water flowed into his neighbour’s land, and damaged something of his possessions.¹³⁵

English courts recognised liability in the event of leakage of harmful substances in Rylands v. Fletcher (1868CE); a famous case in English law.

In this case, the defendant, who owned a mill wanted to build a reservoir to store the water necessary for the mill to function. He even hired experts to construct this reservoir, but later discovered the existence of underground voids below, which led to massive damage. The judgement in this case was developed into the following general rule: “the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, if he does not do so, is prima facie answerable for all damage which is the natural consequence of its escape”.

The second area of enquiry

Matters related to general environmental damages

This area of enquiry relates to general environmental damages; the difference between these and private damages, is that the latter occur to near or far neighbours residing in the area where the harm arises

As for general damages or harms, these are specific to public facilities, such as roads, streets, rivers, canals, sewers, and other public facilities.

The issues related to this type of harm are:

First issue: some rulings related to the public road.

Second issue: owning bees, pigeons, poultry, and dogs.

Third issue: the one who has scabies and enters the mosque.

Fourth issue: the one known for casting the “evil eye”.

Fifth issue: planting and building, if harmful to the public road.

Sixth issue: acts not permitted in the streets.

Seventh issue: building an oven among grape vines belonging to others.

Eighth issue: raising bees between pigeon towers.

Ninth issue throwing rubbish onto derelict land.

Tenth issue: regarding one who incorporates part of the alley into his house.

Eleventh issue: regarding one who establishes a horse stable in his home.

Twelfth issue: regarding mud in markets and neighbourhoods.

Thirteenth issue: polluting substances leaking into the water.

Fourteenth issue: a spring with a channel carrying sewage running alongside.

Fifteenth issue: regarding one who transports earth to the road blocking it.

Sixteenth issue: building a permanent bread oven in his home.

Seventeenth issue: compelling the person to pay the worth of a dog they killed.

First issue: some rulings related to the public road:

1- The one who places something on the road intending to kill a person, who then dies as a result; then Ibn al-Qāsim says: he is to be executed for killing that person. Indeed, if someone else is killed due to his scheme, then compensation for manslaughter (diyyah) is due from him. This is because the first was his intended victim, while the other was not.

2- A person is liable, if they place a rock or tree trunk, erect a structure, or have a timber joist or stone jutting out of their wall, or built an arch, rain gutter, or shade protruding onto the road, which resulted in someone being harmed.

Therefore, if someone tripped over what he had erected on the road, and fell on another, who died, then liability is on the person who placed those things on the road, and was as though he had pushed the one who had tripped. In this case, the latter is considered to be pushed, and one who is pushed is like an instrument… If the balcony or arch fell and killed a person, then a man tripped over the rubble, and a man tripped over the dead victim, and are both killed, then the liability for everyone lies on the owner of the balcony or arch. This is presented at the end of the chapter on the leaning wall within “Qādikhān”. In “al-Khulāṣah”: erecting a protruding balcony, timber joist, or rain gutter, if it is detrimental to Muslims then he is not allowed to do so, and if it is not harmful than he may do so. He is liable for any damages arising, whether causing harm to Muslims or not, and even if he did so with the permission of the ruler.¹³⁶

In “al-Ṭabṣirah”, we find that: “if the wall was leaning as constructed, then the owner is liable. And if he had built it so that it was not, but later, it started to lean, and the owner was warned, in the presence of witnesses, and he was able to repair this, but did not do so, then he is liable for any damages arising. If he was not warned, then his liability is a matter of dispute”.¹³⁷

3- If he sprayed water on the road or performed ablution (wuḍū’), and a person was harmed in that location, then he is liable; this is because what he caused by pouring water on the road led to harm to passers-by, and hindered their passage for fear of losing their footing.

On this basis, washing, repairing, or parking the car on the public road, is considered an infringement that attracts liability.

4- It is not permitted to sit on the narrow road that is only wide enough for people to pass. Anyone who does so is considered to be an abuser, and is liable.

5- If one placed a piece of wood on the road, and someone else came along and moved it to another position, and as a result a person was harmed, then the liability is on the one who moved it, not on the one who placed it initially.¹³⁸

Second issue: forbidding having bees, pigeons, poultry, and dogs:

The erudite scholar, Abū Zayd Sīdī ‘Abd al-Raḥmān al-Ḥāyik, was asked about a man who bought a piece of land in the vicinity of a house, and wanted to prevent the owner from raising poultry, and dogs typical of the rural area (al-bādiyah).

He responded: he has no right do so, as stated in “Ajwibat al-Fāsī (al-Fāsī’s answers)”:

1. As for raising bees, pigeons, and poultry, if these cause damage to people in their crops and trees, then this is a matter of disagreement. Ibn ‘Arafah said: the correct opinion on the issue is to rule according to the statement by Ibn Ḥabīb, i.e. forbidding this, even though it is contrary to the statement by Ibn al-Qāsim, and this is if these things were new. However if they preceded him, then these are not harm, and Allāh knows best (end quote). Indeed, the one who bought what he bought, while the house was a house with its poultry and dogs, then this buyer has nothing to say to the owner of the house, except in those things that he creates that are out of the ordinary; he has nothing to say in those pre-existing things, wherein he had entered with the harm being established prior; also, as stated by Abū ‘Alī in his “Ḥāshiyah”, and Allāh knows best (end quote).

2. He was also asked about raising poultry and others, if this caused harm to people.

He responded: the correct position is to rule in the issue based on Ibn Ḥabīb’s statement, i.e. to forbid this; Ibn ‘Alī stipulated: the most correct, and the basis on which fatwa is issued, is to forbid raising pigeons, and others, if this causes harm to people, which is a fringe opinion, and Ibn Qāsim’s statement on this is unsound (majrūḥ); he said: all this [is relevant], if it was done after the planter planted; however, if, for example, acquiring the pigeons was prior to that, and subsequently, a man came and planted in the vicinity, then he has nothing to say, because he had entered into the harm.¹³⁹

Third issue: the one who has scabies and enters the mosque:

Sīdī Aḥmad al-Qabbāb was asked—as presented in the novel issues relating to purification in “al-Mi‘yār”—about one who is infested with lice; if he came to the mosque to pray, and scratched himself, then the lice scales fell in the mosque, and he is unable to prevent this, is he permitted to enter the mosque or not?

He answered: I could not find textual evidence regarding this, and if he were to pray outside of the mosque and follow their prayer, if possible, then this would be better for him, as a precaution.

I said: on the basis of Ibn ‘Arafah’s statement, in that what comes off the living human, is impure (najis) according to both opinions, then there is no reason for denying the prohibition; similarly based on the statement of Ibn ‘Abd al-Salām, in that it follows from the two opinions regarding the dead part of the human, if we are to extrapolate in what he issued in “al-Mukhtaṣar”, in the statement: of louse and human being. However, in corollary, the basis for prohibition is clear, and the correct position is that he himself must stop entering, and he must be prevented, if others request this for him, because this is harmful to people and his harm is no less so than the smell of onion and the like. Moreover, many people take extra precautions out of devoutness (tawarru‘), and the opinion declaring this as impure is quite strong; therefore, those devout people will not be comfortable to pray on these scales. Therefore, reflect upon it with fairness… as stated by al-Shaykh al-Rahwanī.

I say: also similar to this are the scales that fall off the head of a bald person; therefore, it is not permitted. Also, one whose clothes are infested with lice is not to enter the mosque until he has shed them off himself, because he harms people by this.¹⁴⁰

Fourth issue: the one known for casting the “evil eye” or al-‘ayn:

In “al-Ikmāl” quoting some scholars: if someone is known to cause the evil eye, then he must be avoided and protection from him sought. The ruler must stop him from mixing with people, and order him to stay at home. If he is poor, then he is given provision that is sufficient for him, and people shielded from his harm. Indeed his harm is greater than the harm of eating garlic and onions, for which the Prophet (peace be upon him) forbade entry into the mosque, to prevent discomfort to the Muslims. Indeed this is greater harm than that of the leper, whom ‘Umar, may Allāh be pleased with him, forbade, as did scholars, to mix with people, and it is a greater harm than that of aggressive livestock, which is ordered to be sent away, so that its harm does not manifest. Also in this meaning, is the statement of Ibn ‘Abd al-Barr (may Allāh have mercy on him): I saw our teacher, Abū ‘Umar b. ‘Abd al-Malik al-Ishbīlī (may Allāh have mercy on him) issue a fatwa regarding a man whose neighbours had complained about him, and proved to the judge that he verbally and physically harmed them in the mosque; he ruled that the man be expelled and banned from the mosque. I said to him: what is this, would not being chastised with stick and whip be deterrent enough? He said: evidencing using the Prophet’s (peace be upon him) tradition has greater precedence. He said: he referenced ‘Umar’s tradition, i.e. his statement: O’people, you eat from two vile trees, onions and garlic. I saw the Messenger of Allāh (peace be upon him) if he found their smell emanating from someone, he would order that they be removed to al-Baqī‘.

In “Aḥkām Ibn Ḥamdīn”, regarding the one who has testimony against him that he harms people verbally, and abuses them; then Sa‘īd b. Aḥmad b. ‘Abd Rabuh said: my view is that he be detained for three days. Ibn al-Ḥārith said: my view is that you order his incarceration, and allow him the opportunity to provide a defence; if there is no defence, and someone came with evidence to prove that he had libelled them, then you would grant them redress, and serve a final, unequivocal writ that he warrant to stop truly, or be ejected from among these people and leave the place. Ibn Khuzaymah said: my opinion is that you should order his detention, allow him to mount a defence, and provide evidence that allows him mitigation, otherwise you should stop his evil from his neighbours by forcibly selling off his home or renting it, and deport him from the place; this harm is one that requires that he be expelled far away from those Muslims that he has harmed. He should also strive to discipline him by the whip to the degree of his sin, and his trespass on people’s honour; people’s honour is protected and no one may infringe upon it, except that he is disciplined accordingly.¹⁴¹

Fifth issue: planting and building, if harmful to the public highway:

Planting and building in the vicinity of the city’s wall is forbidden, if there is harm in that, otherwise it is not.

The author of al-Mughārasah said: like a plant or building in the vicinity of the wall where there is fear that the enemy would take advantage of that, or if they were to harm the public road. In “al-Sharḥ” he said: this means that it is not allowed for anyone to plant or build in the vicinity of the wall of any Muslim land, whereby the enemy may hide behind such plantation or structure; this is clear, and quite apparent.¹⁴²

Sixth issue: acts not permitted in the streets:

a) It is quite apparent that raising cows among houses in the urban settlement, especially in the centre, and the noble places in them, is a harm that is not accepted under any circumstances, and must be eliminated by all those who are able to do so without prejudice; given that they smear house doors with their dung, stop walkers by blocking passage in the vicinity, and harm young children and others by goring with their horns; in addition to other kinds of harm. Indeed, the norm in all urban settlements is that cows are raised at the edges of the settlement and not the centre.

b) Similarly, slaughtering a camel at the butcher’s door, and polluting the road with blood, is an evil that must be prevented. Rather, he has the right to slaughter inside his shop, where he may establish a slaughter area, because otherwise, he shall be harming people. Similarly, throwing floor sweepings onto the road, scattering melon skin, spraying water in such a way that there is a risk of people slipping, are all evils. Moreover, rain gutters jutting out of the walls onto a narrow way, this results in impurities falling on people’s clothes due to the narrowness of the passage; it is not prohibited when the road is wide… etc.

c) Those who want to shake out their rugs or otherwise at the door of their house, which results in harm to passers-by due to the dust, are to be prohibited from doing so. It is no excuse for them to say: I did this at the door of my house.

d) Scholars have ruled that it is forbidden to bring pigeons, poultry, and bees into the urban setting; this despite the harm that they pose is significantly less than that of cattle; they also prohibited dogs in the urban area.¹⁴³

Seventh issue: building an oven among grape vines belonging to others:

Ibn al-Makwī was asked about this; he said: he is to be forbidden.

Aḥmad b. ‘Abd Allāh al-Lu’lu’ī was asked about a man who built a tile or brick oven on his property among grapevines belonging to others. His neighbours complained about the harm from those congregating, and patronising the oven.

He responded: this is not harm, and he should not be forbidden from establishing this, unless its construction is harmful or its fire damages the neighbouring grapevines, whether in value, or produce.¹⁴⁴

Eighth issue: raising bees among pigeon towers:

Cordoba’s jurists were asked about some people in the rural areas, who had established pigeon towers in the past. Later on, other people from the area introduced bees, living in tree trunks and openings. These bees were harmful to the tower pigeons, while ranging around water and other places, to the point where they would curtail the pigeons’ activities, and perhaps harmed them during rest periods, as well as harming livestock when drinking water.

He answered saying: we are of the opinion—and Allāh is the Guide and Helper to what is correct—if there was no other statement but that of the Messenger of Allāh (peace be upon him) “no harm shall be inflicted or reciprocated”, then this statement would have been conclusive, sufficient, and requiring no further comment, in compelling the elimination of harm; those who established bees must be stopped from doing so. More so, it is also the opinion of our companions. This exact same issue occurred and is recorded in the letter of the Sultan in “al-Mustakhrajah” that no one may bring bees that harm pre-existing pigeon towers, and I do not know any disagreement among them. I ask Allāh to bestow success, guidance, and sound opinion upon you; as stated by Ibn Lubābah, Muḥammad b. Walīd, Sa‘īd b. Mu‘ādh, Yaḥyā b. Salmān, and others.

Ibn Walīd answered another similar question, saying: what we say is that any new harm brought by a man to his neighbours, then he is forbidden from doing so, based on the statement of the Prophet, peace be upon him: “no harm shall be inflicted or reciprocated”. There is no harm more clearly illustrated than that of a man who brings into the village that which devastates their bees, and harms their children. Therefore, such persons must desist from bringing hives into their homes, and must be prevented from doing so, with Allāh’s permission; indeed, one cannot guard against bees or pigeons, in the same way as one can guard against livestock, and there is no harm greater than that against which one cannot protect oneself; stated by Ibn Mu‘ādh, Ibn Lubābah, and Yaḥyā b. Salmān.¹⁴⁵

Ninth issue throwing rubbish onto derelict land:

Saḥnūn was asked about derelict land belonging to a man, situated among homes, onto which rubbish was being thrown by the people of the neighbourhood. However, he did not know the specific individuals throwing the rubbish. The neighbour, whose wall was to this derelict land said to the owner: the rubbish on the abandoned land has damaged my wall. The owner of the land said to him: it is not from my neighbourhood, and I complain of its harm to my land as you complain about your wall.

He answered by saying: this is similar to a wall belonging to a man that collapses, obstructing another man’s entry and exit; he claimed at the end of his statement that the owner of the derelict land must be compelled to remove the rubbish on his land, which had harmed his neighbour, even if the derelict land owner were to stand up to the neighbours around it and force them to sweep it. Abu Bakr said: Saḥnūn’s statement regarding neighbours is a matter of juristic preference or istiḥsān, because it is possible that non-neighbours may actually be throwing rubbish on it.¹⁴⁶

Tenth issue: regarding one who incorporates part of the alley into his house:

He was asked about a man who incorporates part of the Muslims’ alley into his house, while the alleyway remains unobstructed. The neighbours did not raise the matter to the judge with their testimony only after twenty years.

He answered: what he has built is to be demolished, and returned to the alleyway, if the evidence presented is true. Alleyways cannot be owned, and are not open to possession.¹⁴⁷

Eleventh issue: regarding one who establishes a horse stable in his home:

He was asked about one who establishes a stable behind his neighbour’s house to hold a small animal; the owner of the house complained of the harm by the animal.

He answered that this harm must be eliminated, and animal removed. The owner of the animal cried out, and said to him: I cannot dispense with this animal, because I depend upon it for my livelihood, so ask those people of knowledge on what may remove the harm from my neighbour. The matter was referred to master builders, and they said: he should dig a foundation, up to a man’s height behind the wall at the centre of the house, and raise in that trench a wall of 5 inches up to the rooftops. They informed the judge of what they had ordered the owner of the animal to do. When he did so, the harm was eliminated from the owner of the house. The judge, may Allāh’s mercy be upon him, said: witnesses must testify on this, such that over time, he does not remove the wall, and [de facto] deserve the stable by passage of time.¹⁴⁸

Twelfth issue: regarding mud in markets and neighbourhoods:

He was asked about the mud in markets and neighbourhoods, and must they remove it from impure (najasah) water, which is drawn out of wells, harming pedestrians?

He responded: if there was a benefit in the elimination of that, then they would be compelled to remove it; each removing what is in his vicinity. It is forbidden for impure things (najasah) to be channelled onto the road, and those who do so are sinful.

Ibn al-Ḥāj said: The judge is to forbid the running of sewage water and rubbish in the alleys.¹⁴⁹

Thirteenth issue: polluting substances leaking into the water:

Ibn Zarb was asked about a well spring beside a channel with waste in it; the waste falling into the channel was harmful to the well spring.

He answered: If the waste flowing in the channel is proven to be harmful, then stopping the flow of waste is an obligation.¹⁵⁰

Fourteenth issue: a spring with a canal carrying sewage running alongside:

He was asked about a spring with a canal carrying sewage running alongside, and that the rubbish falling into the canal is harmful to it, and that the self-representing person had requested through ḥisbah to construct a bridge of rock between spring and canal, claiming that the harm to the spring would be eliminated.

He responded: if it is proven to you that sewage running in the canal is harmful, then stopping the sewage flow is an obligation.¹⁵¹

Fifteenth issue: regarding one who transports earth to the road blocking it:

He was asked about one who transports earth to the road blocking it.

He answered, saying: the owner of the earth is told: “remove it”, and if he refused then he is not to be forced to do so, and the others are told: remove it from your way.

Yaḥyā b. ‘Umar said: if shop owners accumulate mud, then they are compelled by force to remove it; similarly, if someone transports his earth to the road blocking it.¹⁵²

Sixteenth issue: building a permanent bread oven in the home:

Al-Rāzī mentions in “Kitāb al-istiḥsān”: if he wished to build a permanent bread oven in his house, such as is found in shops, or a millstone, or hammers to produce powder, this is not allowed, because it is extremely harmful to his neighbours, and cannot be guarded against; indeed, it produces a lot of smoke, while the millstone and the hammering weaken structures, in contrast to baths, because these harm through damp, and may be mitigated by building a wall between him and his neighbours, and it is also different to the oven normally found in homes (end quote).¹⁵³

Seventeenth issue: compelling the person to pay the worth of a dog they killed:

One of the books on fatwa presented the following: “in al-Akhmās tribe, a novel issue is recorded by the Mufti in his own hand, which he answered; he said in the question and answer: all gratitude is to Allāh, and peace and blessings on the Messenger of Allāh: the writer of this—may Allāh pardon him—was asked about a man who killed another’s dog at his door, is he due to pay the value of the dog or not? And is he to be punished for killing him near the owner’s home or not?

The answer—Allāh knows best—that it is ruled that he must pay the value of the dog, because it is lawful to own rural dogs, and anyone who kills a permitted dog is fined its value; in “al-Mudawwanah”, he says: “whoever kills a house dog, which is not permitted to own, then there is nothing against him, because it is to be killed and not excused. However, if it is a dog permitted to own in order to guard crops or other, then he is liable for its value”, quoted by al-Rahwanī in Bab al-Buyu‘ (Chapter on business transactions).

In “al-Risālah”: “there was disagreement regarding the sale of the dog that is permitted to own, as for whoever kills it, then he must pay its value”. Also quoted by al-Rahwanī in the mentioned place. He said: there are many texts on this, and it would take long to present them all, Allāh knows best; he is to be punished at the judge’s discretion, given that he has passed near the owner’s home, unless it was necessary, and his home was not on that way”¹⁵⁴ [end quote].

Chapter Four

Environmental protection methods between Islamic law and international agreements

This consists of five areas of enquiry:

First: the general principles governing consideration of environmental issues.

Second: raising awareness of the importance of the environment and its protection.

Third: applying the principle of compensation for environmental damages.

Fourth: exercising legislative and disciplinary authority.

Fifth: evolving measures and actions limiting environmental pollution.

First area of enquiry

General principles governing consideration of environmental issues

The general principles that govern thinking about environmental issues are:

1) The environment is a boon (ni‘mah) from Allāh.

2) The environment is a worshipping creature (kā’in muta‘abid).

3) The environment is a friend of humanity.

4) The environment is a manifestation of Divine Beauty in the universe.

5) The environment is the domain for human civilising settlement and development (al-‘imrān).

6) The necessity of preserving environmental balance.

7) The environment is humanity’s shared heritage.

No doubt that these principles represent the religious and philosophical frame that defines human beings’ relationship to the environment at the level of concepts, vision, and measures. In all this, it is far removed from visions and concepts founded on a materialistic basis, which ultimately led the relationship with the environment, and indeed, the ‘other’, to be based fundamentally on conflict, and depletion of resources, without any limits or checks and balances.

The issue of the environment is much more significant than that of resources and wealth; in addition, it is a purely human relationship, blending the worldly with the religious, and the material with values, to shape life in a way worthy of the message, with which the human being was tasked on Earth.

Second area of enquiry

Raising awareness of the importance of the environment and its protection

Islamic law presents numerous and diverse means in the context of protecting and preserving the environment. One of these means is to raise awareness of the importance of the environment, harms to it, protection, development and enhancement, as well as treatment of problems, by offering a unique perspective on environmental problems. This is based on the premise that the human being is the one who created these problems, and not nature; hence, taking care of the human being himself—given that they are one of the elements of the environment on one hand, and responsible for its deterioration or conservation on the other— then, ultimately, this will lead to true protection of the environment.

This enhanced awareness can be achieved in the following ways:

1. Edification of the younger generation:

“The first of these means is edification and education, especially young generations in nurseries and schools at their different levels, until university.

It is an obligation to plant the idea of caring for, conserving, and dealing with the environment with an approach defined by: “excellence (ihsān)”, which Allāh commanded, and prescribed upon everything; in the Prophetic tradition: “Allāh has prescribed ihsān upon everything”;¹⁵⁵ “gentleness (al-rifq)”, which Allāh, the Exalted, loves to see manifested in everything, and is such that its presence in anything results in beauty, and its absence in anything results in ugliness; “moderation (al-i‘tidāl)”, which allows the human being to benefit from the good bounties of the environment, without miserliness or profligacy, as befitting the servants of the Most Gracious (‘ibād al-Rahman), {“Those who, when they spend, are neither extravagant nor mean, but take a stance midway between the two”} (Sūrat al-Furqān 67); and “gratitude for the boon (shukrān al-ni‘mah)”, which must be a description of every believer, because it is Allāh, Who protects, increases, and grows it for him; as such, the believer should say as did Prophet Solomon, peace be upon him: {“… he said, ‘This is part of my Lord’s favour to test me to see if I will give thanks or show ingratitude. Whoever gives thanks only does so to his own gain. Whoever is ungrateful, my Lord is Rich Beyond Need, Generous.’”} (Sūrat al-Naml 40).¹⁵⁶

2. Promoting awareness and education among adults:

“The second means is promoting awareness and educating adults, and the general public generally, through cultural bodies that work at raising the nation’s thought, and elevating tastes, and rational and psychological trends, as well as correcting erroneous concepts, and addressing deviant ideas. Moreover, cooperating with serious and principled media outlets, which are constructive and not destructive, and seek to reform and not corrupt. The goal being to establish a novel, knowledge-based, environmental concept stemming from the Islamic general viewpoint on: Allāh, the Exalted; the human being; the universe; and life and existence. Indeed, it is culture, which is capable of changing ideas, tastes, and inclinations, and shaping individuals’ directions, whether good or evil.

In addition, mending the environment, with genuine concern for its well-being and growth, and its delivery of what is required of it in an ideal way… All this must be part of the approaches taken by print, audio, and visual media. In that sense, appropriate cultural programmes must be developed; each addressing the different segments of the population appropriately—academic programmes suitable for the highly educated, and mainstream ones for the benefit the general public.

Indeed, it is imperative that these environmental meanings and concepts are included in works of drama, plays, series, etc., due to the entertaining content, and the significant influence these have on people.

In addition, religious media must perform its mission of spreading awareness, channelling energies in the right directions, and providing guidance, based on the Noble Qur’ān, Prophetic tradition, and the example of the pious predecessors, through the Friday sermon, mosque lesson, and religious lectures. Without doubt, the mosque leverages huge influence on the Muslim mind and conscience, especially when a capable Friday congregation orator, who has a firm grasp of the religion and our times, assumes this responsibility”.¹⁵⁷

3. Oversight exercised by public opinion:

The third means is the oversight and scrutiny brought to bear by public opinion, which represents the collective conscience of the Muslim nation. This is manifested in the obligation to command good and forbid evil (amr bi al-ma‘rūf wa nahiy ‘an al-munkar), by which Allāh made this nation distinct. He, Most High, says: {“You are the best nation ever to be produced in mankind. You enjoin the right, forbid the wrong and have belief in Allāh…”} (Sūrat Āl-‘Imrān 110).

This is one of the quintessential descriptions of the society of believing men and women; Allāh, the Exalted has described them in his book, saying: {“The believing men and women are friends of one another. They command what is right and forbid what is wrong, and establish ritual daily prayer (ṣalāh) and pay obligatory charity (zakāt), and obey Allāh and His Messenger. They are the people on whom Allāh will have mercy. Allāh is Almighty, All-Wise”} (Sūrat al-Tawbah 71).

[In this verse, we note that] Allāh presented commanding good and forbidding evil before the known obligatory acts of Islam, namely daily prayer (ṣalāh) and obligatory charity (zakāt). The reason being to emphasise the importance of commanding good and prohibiting evil in Islam. Thus, the social conscience of the Muslim nation is fashioned, and the oversight exercised by public opinion over its conditions, as it strives to secure probity, is a matter of prescription.

Without doubt, repairing and caring for the environment is part of doing good, while its corruption, pollution, and infringement upon it is clear evil.

This means that every Muslim has joint responsibility to ensure the well-being and good condition of the environment. If he sees anyone infringing upon it, through polluting, damaging, or corrupting it, then he is duty-bound to forbid them from doing so. Indeed, the essential demand is that he change this evil according to his capacity; by his hand [i.e. power] if he holds authority, and if he cannot then by his tongue [speaking out], and if not then [rejecting this] in his heart, which is the weakest degree of faith”.¹⁵⁸

Third area of enquiry

Applying the principle of compensation for environmental damages

One of the means that lead to protection of the environment from pollution and infringement in any form that threatens human life or that of living creatures, or even forests… is to apply the principle of compensation for harm to the environment, where human beings exercise their right to work, exploit resources, or anything else related to affairs of the environment.

As environmental damage has taken a regional and international character, international efforts have been directed towards recognising the principle of compensation for environmental damage, whether direct or not. Therefore, international agreements have been drawn up making this principle mandatory for everyone, because harm to the environment is now global in nature. Examples of these agreements are: the 1969CE International Convention on Civil Liability for Oil Pollution Damage; the 1962CE treaty relating to nuclear power; the 1982CE United Nations Convention on the Law of the Sea, and others. All these illustrate to us that damage to the environment recognises no geographical or political boundaries in their effects. Hence, it is imperative to develop rules defining responsibility and compensation for environmental damage, in those cases where preventative measures have failed to stop the harm from occurring.

Some workers proposed a number of global measures that contribute to environmental protection, as well as restoring it to the original state, to be suitable for human life, and suit humankind’s role and mission on Earth.

“First: seeking recourse to international justice in the case of those provable direct harms; jurisdiction will be determined in front of the International Court of Justice, and it appears to us that regional courts concerned with pollution under the umbrella of regional international organisations should also be established; taking the example of the European Court of Justice. This leads to the possibility of establishing courts such as: the Arab Gulf Court; the Arab League Court; the Organisation of African Unity court; and the court for the Americas. However, recourse is to the national courts in the case of transboundary pollution, where harm is proven in the case of exceeding the internationally agreed levels and limits of pollution. Moreover, on the basis of the United Nations Convention on the Law of the Sea, regional and international agreements on compensation, the legal principles announced in the Stockholm Declaration (principles 21, 22) the OECD principles, and established international case law, or indeed, national laws.¹⁵⁹

Second: imposing a levy on factories causing transboundary pollution; this levy would be increased in proportion to the degree of non-compliance to environmental levels and standards; this would cover cement, steel, brass, aluminium, and pesticide factories.¹⁶⁰

Third: it is our view that an international environment fund should be established and funded by multilateral financial institutions, such as World Bank, International Monetary Fund (IMF), and regional development banks.¹⁶¹

Fourth: we believe that international centres treating health conditions caused by toxicity should be established by the world’s rich, acting collectively, and funds secured in the form of a tax.¹⁶²

Fifth: inviting all the world’s countries to sign and ratify the agreements related to the protection of nature and the environment, and compensation for environmental damages.¹⁶³

Sixth: providing financial and technical assistance to developing countries, enabling them to improve measures for protection of their environment and natural wealth. Moreover, the results of research relating to polluted products, methods of use, and eliminating their harms, should be put at the disposal of developing countries.¹⁶⁴

Fourth area of enquiry

Exercising legislative and disciplinary authority

The intent behind using the authority to legislate and punish is to issue the necessary legislation and laws to protect the environment. This requires establishing an integrated legislative framework to protect the environment in all its aspects. This includes all the necessary fundamental principles to prevent pollution, in addition to some measures that help eradicate all manifestations of pollution and corruption to the environment.

Indeed, legislative instruments can be created based on the customary principles of [Islamic] legal theory, such as juristic analogy (qiyās), juristic preference (istiḥsān), blocking the means (sadd al-dharāi‘), and public interests neither acknowledged nor rejected in Islamic law (al-maṣāliḥ al-mursalah); such work will also find significant support in the following legal maxims:

1) No harm shall be inflicted or reciprocated (lā ḍarar wa lā ḍirār).

2) Harm is to be eliminated (al-ḍarar yuzāl).

3) The lesser harm is endured to suppress the greater harm (yutaḥamal al-ḍarar al-adnā li daf‘ al-ḍarar al-a‘lā).

4) The lesser of two harms is committed (yurtakab akhaf al-ḍararayn).

5) Custom is applied as a legal ruling (al-‘ādah muḥakamah).

In addition to other rules related to health and environmental damages, both public and private.

In this context, one must not forget the articles relating to environmental protection in “Majallat al-Aḥkām al-‘Adliyyah”, which codified civil law based on the Ḥanafī school of jurisprudence, as presented in articles: 1200, 1201, 1202, and 1212.

Fifth area of enquiry

Applying measures and actions limiting environmental pollution

1. Environmental protection body:

Protecting the environment is no easy matter, even with the availability of intent and funds. This is because combating pollution requires studies, research, and efforts, as well as coordination between different state organs. Therefore, in every state, it is necessary to establish a body or higher authority dedicated to the matter of protecting the environment and combating pollution. It would monitor pollution in all the elements of the environment, measure the levels, investigate causes, and search for the best means of treatment. This body would be in constant contact with the different agencies concerned with the environment, and coordinates between them. It also undertakes the task of proposing general policy, and drafting legislation related to environmental protection.

2. Establishing pollution monitoring centres:

The centres are to be staffed by specialists, and given the necessary technical equipment. Pollution measurement stations must be sited in different places on land and sea, with numbers increasing where high levels of pollution are expected.

3. Determining pollution levels:

Appropriate levels of pollution must be defined, to provide a basis for verifying its presence, and assessing the level of danger, in preparation to combating it, and eliminating its effects. This is because there is no longer any single element of the environment that is free of pollution in all its forms. Therefore, there is no escape from ignoring and forgiving low levels of pollution, as long as these are within limits that can be endured, and do not pose a danger to public health or the environment in general. For this reason, States and concerned international organisations work to specify approved levels of pollution relative to the different elements of the environment.

4. Confronting industrial pollution:

Factories are considered the principal and most significant factor contributing to pollution in the modern age. In order to avoid or reduce this, a comprehensive study must be undertaken of all the effects that can arise from each proposed industrial project, and to search for the scientific solutions that are capable of treating the negative effects. Even better, legislators should explicitly stipulate that permits for the project are to be withheld until a comprehensive study of its effects is presented. In addition, the costs of combating its pollution may be included in project establishment costs. Moreover, for verification, the factory may be allowed to operate for a short trial period to monitor and measure the effects of its operations. Factory management must conduct periodic inspections and measure pollution, so as to confront it at the appropriate time. New factories in the developed countries have included, as part of their works, a department to treat the waste they produce… and other things, and employ experts. The matter is not restricted to those factories that are in the process of being established, but must include current ones. The concerned authorities should examine them, and apply appropriate measures to eliminate or limit the causes of pollution.

5. Combating vehicle pollution:

Vehicles are one of the most important causes of air and sound pollution. Therefore, the necessary legislative and administrative measures must be taken to limit their negative effects and protect from pollutants. For example, working towards reducing the number of vehicles, or limiting the rate of rise in vehicle numbers. In addition, vehicle types must be improved, by issuing and applying legislation obliging that gas emissions from vehicles not exceed specific levels, with all the required measures.

6. Protecting water bodies:

Work must be done to protect sea and river water within State territory from the multiple causes of pollution, through prohibiting the leakage of oil and its derivatives to it, and performing prompt clean-up in the case of spillages. This through issuing the necessary legislation and ratifying the international agreements regulating such means. As for public sewer or waste water, this must be disposed of safely, and should not be channelled into fresh or salty water, causing its pollution, and becoming a source of harm. This type of water may also be cleaned and reused, wherever practicable.

7. Protecting living creatures:

Legislation must be concerned with protecting both land and marine life, as well as crops, and preserving green areas… These must be protected from violations by humans that may lead to their complete disappearance.

8. Combating food pollution:

Food is the body’s support and fuel for life; its pollution leads to direct and grave harms to the human being. Therefore, State legislation on food must be comprehensive and strict, in order to stop all causes of pollution of food products.

9. Combating soil pollution:

The importance of soil and the necessity for its protection from pollution requires no explanation. Therefore, soil use must be regulated, erosion prohibited, and all actions that lead to pollution banned. Moreover, solid waste must be treated before being disposed of in soil, with reuse of those materials that can be reused, while searching for alternatives for polluting materials.

10. Maintaining public peace:

Noise or loud and disturbing sounds have become one of the most important factors causing stress, which is the disease of our time, and is prevalent everywhere… This must be confronted in a way that achieves public peace, such that the great blessing of hearing does not turn into a huge curse.

11. Confronting radiation pollution:

The whole world is using nuclear and atomic power and others for many purposes. This requires regulating the means of protection from radiation pollution from all sources. Moreover, there should not be a rush by underdeveloped countries into using nuclear energy, given its huge dangers.

12. Combating space pollution:

The advanced industrial nations have led to the degradation of the ozone layer, and pollution of outer space through the quantity of propelled bodies and artificial satellites thrown into space. Those countries that wish to catch up with them, should not contribute to this space pollution, whether by using consumer products that emit ozone-depleting substances, or rushing into participating or encouraging pollution of space.

The human being through research, thinking, contemplation, and reflection may benefit from technical and technological progress, without being forced to pay an added price for this from his security, health, or well-being.¹⁶⁵

Conclusion

At the end of the study, I mention here the most important findings:

1) The care, preservation, protection of the environment from all forms of pollution is considered a religious obligation from the Islamic perspective; this is because “that without which an obligation cannot be fulfilled is itself obligatory”. If the pillars of the religion are distributed between the ritual acts of worship (ibādāt) and transactions (mu‘āmalāt), then securing these pillars cannot be achieved in isolation from the environment in all its elements.

2) Environmental protection in light of the objectives of Islamic law (maqāṣid) comes through a faith-based vision of the environment concept, which asserts that the environment is a trust from Allāh, bound to serve mankind, over which they enjoy usufruct, and which they must preserve. It is also considered a boon given by Allāh to the human being, and is a manifestation of beauty and creativity. It is also a public right for all human beings and all generations, and so no one has a right to act exclusively in a way that disrupts its balance, or leads to loss of its natural characteristics.

3) Muslim jurists have been concerned with the environment at both theoretical and practical levels; their fatwas are witness to the degree of concern with the requirement to protect the environment from all harms that threaten it, in light of the circumstances in which they lived, and the harms that occurred in their time.

4) Means of environmental protection must take diverse forms, including raising awareness of the importance of the environment; applying the principle of compensation in the event of environmental damage occurring, similar to compensation in the event of private injury; exercising legislative and disciplinary authority; and developing new measures and actions to limit environmental pollution.

5) The problem of the environment is no longer local or regional, rather it has become a global problem, requiring the pooling of all efforts, and the unity of the international community, because the danger now threatens everyone. With the plethora of signed international agreements relating to environmental protection, we note that the majority of these agreements have not been complied with for many reasons; hence, environmental harms remain the same, which is an extremely grave matter.

6) Protecting the environment enjoys an intimate relationship with protecting human rights; if the human being has the right to live with freedom and dignity, then this will only be achieved in an environment that is healthy, clean, and free of pollution. Hence, violation of the environment is counted as a violation of human rights. Similarly, protecting the environment is related to protecting the rights of all living creatures, indeed, all elements of life, whether water, air, soil, plants, or animals. The environment is everything surrounding the human being of those means necessary for life, and any violation or infringement on any aspect is an attack on life in all its shapes and forms.

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Source note: This article was published in the following book: The Objectives of Sharīʿah and the International Conventions, 2013, Al-Furqān Islamic Heritage Foundation, London, p 275-398, translated into English. Please note that some of the images used in this online version of this article might not be part of the published version of this article within the respective book

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