LESSER OF TWO EVILS

Under the overwhelming influence of Capitalism, Muslims have, willingly or unwillingly,

redefined their parameters in life. The criterion that now governs any action is the inherent
benefit that the action brings (or the harm that it causes). Halal and Haram are consciously
excluded from today‟s discussions. This is more so in countries where Muslims live as
minorities. And once a beneficial solution is found, we go great distances to find some
justification from Islam. One such justification is the concept of lesser of two evils.

The principle of lesser of two evils (Akhaff Ad-Dhararain; Ahwan Al-Sharrain) is a sub-principle
of the principle of injury (Qa‟idat Al-Dharar) that states, „harm is to be lifted‟ (al dharar yuzaal)
which in turn is based on a principle derived from the hadith: “La dharara wa la dhirar” (there
is no harm and no harming). The principle of lesser of two evils is applied when one is forced to
choose one of the two options, both defined as haram by Shariah because failing to choose one
would cause great harm. The principle stipulates that choosing the lesser of the two prohibited
evils, is permissible in such a situation.

A good example is given by Al-Zayla`i and quoted by Ibn Nujaym in Ashbah wa‟l-naza‟ir: “if a
man had a wound from which blood would flow if he were to prostrate in prayer but if he did not
prostrate then it would not flow, in this case, he must sit and pray, merely enacting the acts of
bowing and prostrating because to leave prostration in prayer is a lesser evil (Ahwan) than
praying in a state of impurity. Leaving the prostration is permitted in certain conditions like in
the case of offering optional prayers while riding an animal whereas praying in a state of
impurity is not permitted at all…” Ibn Nujaym quotes another example: “similar is the case of an
elderly person who is unable to recite the Qur‟an in the prayer while standing but is able to do
so in a sitting posture. In this case, he prays in a sitting posture because it is permitted to sit
when praying optional prayers whereas it is not permitted to pray leaving the recitation of the
Quran…”

Another example is the difficult situation of a pregnant woman who would jeopardise her life
and the life of a viable foetus if she continued the pregnancy; in origin, abortion is haram in
Islam, so is killing oneself but abortion is a lesser evil compared to killing oneself. Hence it is
allowed for her to terminate the pregnancy. Similar is the example of a man witnessing a
drowning woman whose awrah is totally exposed. To look at her, go near her or touch her are all
clearly haram but allowing someone to die is considered a greater evil. Hence he is allowed to go
and rescue her. And, the example of a person who is starving and will die if he doesn‟t eat
something and the only available food is pork. Again, Shariah gives him the concession to
consume pork that is in origin haram. Therefore, in all these situations committing the lesser of
two evils is permitted to remove the harm.

Before one proceeds further, few related principles must be clearly understood. Firstly, harm
cannot be relieved by an option that leads to a similar harm (al dharar la yuzaal bi mithlihi). For
example, if eating pork will save one from death, it is permitted but if the pork is spoilt and
eating it will cause more harm than presently faced, eating it is not permitted. Or, if there are two
persons, both dying out of starvation, and the quantity of pork is only sufficient to save the life of
one and if that person ate it, the other would die; in this situation too it will not be permissible for
one to eat it alone because eating pork is removing the harm from one but increasing it for
another.

Secondly, when the prohibited and the permitted occur together and a choice has to be made
between the two, the prohibited has priority of recognition over the permitted (idha ijtama'a al
halaal wa al haram ghalaba al haraam al halaaal). Meaning, between a halal and a haram
option, not doing the haram has greater importance than doing the halal. Also, however difficult
that halal option is, the rule is to avoid the haram and choose the halal. In a situation where only
two haram options exist and choosing one of them is inevitable, the lesser haram is committed
(ikhtiyaar ahwan al sharrain) so as to remove a bigger harm (al dharar al ashadd yuzaalu bi al
dharar al akhaff). By greater reasoning, if the lesser haram doesn‟t actually remove the harm
then it is not permissible to commit it.

From the foregoing, it is clear that when applying the principle of lesser of the two evils, certain
conditions must be met. These are:

 The prohibition of both options is clearly known in Shariah

 The harm involved is defined by the Shariah
 The harm is real and existent and not assumed or possible
 Choosing one of the two harams is compulsory in order to ward off the harm
 No other option exists that may eliminate or lessen the harm
 The intended benefit therein should be defined by the Shariah
 Shariah should define which one is lesser evil of the two
 Choosing the lesser evil should definitely bring the benefit intended by the Shariah

In the abovementioned examples two inevitable evils are the only options. The man dying out of
starvation may choose to eat pork to save his life. But if there was, let‟s say, an uncooked
vegetable that he could eat to save himself, he‟s not allowed to eat the pork although the raw
vegetable is insipid and difficult to chew. This is simply because the unsavory, uncooked
vegetable is a halal option this person has in order to save himself. He cannot eat pork under the
pretext that the raw vegetable is tasteless, difficult to chew and may harm his digestion. Also, he
cannot eat pork out of fear that he may possibly die in some days if he continued to starve (may
be carry it along if he fears he may not find anything else and eat only when he reaches the
Sharii condition where impermissible becomes permissible). And, when permitted to eat pork, he
cannot take a morsel more than what is sufficient to save himself from dying. When committing
the haram, one must sincerely detest the act as well as the situation that is forcing him to commit
it.

So we see that the mind cannot be used to define the harm or the lesser of the two harams nor
decide what action to take. It is only the Shariah that categorically defines each of these.
Understandably, the principle of the lesser of the two evils cannot be applied as a default remedy
in every situation.

Let‟s look at how this principle is applied (or misapplied) in the case of voting in an un-Islamic
system. To help us understand, we shall determine whether the abovementioned conditions are
met or otherwise.
1. The prohibition of both the options is defined by the Shariah

If by „options‟ one meant the choice of candidates, then this condition is met since both options
are known to be haram. We know that all candidates vying for the post propose to rule and after
winning, would only rule by other than the Shariah of Allah (swt) which is haram. So, by voting
for any of the candidates one would end up assisting Kufr. But if by „options‟ one means voting
versus not voting and suffering (or a possibility of suffering), then the Shara doesn‟t accept it as
haram. Though suffering oppression is humanly unacceptable, it is not haram in Sharii
perspective. The Ambiya suffered many zulumaat but no one says they committed haram. In the
present-day hedonistic, materialistic world suffering is unacceptable however minor it may be.
Therefore, if two Sharii harams don‟t exist, the question of validity of the principle doesn‟t arise.

2. Harm must be defined by the Shariah

The harm that is evident from the above examples is loss of life or the missing of an obligation.
These are the conditions that Shara recognizes as harm. No such harm exists in the context of
voting. As mentioned above, hardship and suffering are not the harm that Shariah includes as
basis to change the ahkam.

If Muslims were faced with a reality where they were forced to vote or face death, then the
principle of lesser of two evils would apply. Because the harm involved then is defined by
Shariah and the lesser of the two harams is also clearly defined. Between dying and voting in a
Kufr electoral system, the latter would be the lesser evil. In today‟s reality no Indian is ever
coerced, compelled or forced to vote or die thus invalidating the application of the principle.

3. The harm is real and existent and not assumed or possible

The harm or injury involved by not voting is neither definite nor actual rather it is an assumed
one. We know many Muslims (and non-Muslims) of India who do not vote and yet continue with
their lives for a long time now. If the harm was indeed real, any Muslim who did not vote should
be executed (or persecuted). We know quite well that this is not the case. Shariah has never
recognized the possibility of harm as equal to real harm. The principle of certainty (Qaidat al
yaqeen) states certainty cannot be removed by doubt (al yaqeen la yazuulu bi al shakk).
Accordingly, Sharii ahkam are revisited solely based on certainty (yaqeen). No one is allowed
the freedom to operate at the level of conjecture (dhann) or doubt (shakk) or when there are
second thoughts (taraddud). Legal certainty (yaqeen) is a situation devoid of dhann, shakk or
taraddud. Therefore, if the injury doesn‟t become established, the principle of injury (Qa‟idat Al-
Dharar) and the principle of lesser of two evils (Akhaff Ad-Dhararain; Ahwan Al-Sharrain)
simply do not apply in this situation.

Further, another Sharii principle states that necessity permits a haram only temporarily (al
idhtiraar la yubtilu haqq al ghair) and the temporary concession from haram ends when the
necessity that justified it in the first place ceases to exist (ma jaaza bi „udhri batala bi zawaalihi).
So, a necessity that existed in the past or exists in some other region cannot be a basis for
Muslims in some other time and place to commit haram. So, the Rohingya crisis or the Godhra
violence or any such examples cannot be presented as universal arguments to apply the principle
of lesser of two evils.

4. Choosing one of the two harams is compulsory in order to ward off the harm

As discussed in No. 2 above, this reality doesn‟t exist. Nowhere in the planet (except for some
troubled regions) does the authority force the voters to cast their vote at gunpoint. In most places
they merely exhort the voters to cast their vote. Therefore, the principle wouldn‟t apply except in
those regions where one finds the extreme persecution of people.

5. No other option exists that may eliminate or lessen the harm

In an electoral system, many options exist that are halal. The option to not enroll in the voter list,
the option to abstain from voting and the option to invalidate one‟s vote are all halal options.
And according to the principle that when the prohibited and the permitted occur together and a
choice has to be made between the two, the prohibited has priority of recognition over the
permitted (idha ijtama'a al halaal wa al haram ghalaba al haraam al halaaal). In recent times,
„none of the above‟ (NOTA) has been introduced as an option. Muslims may utilize this option
(with a conviction in the belief that this system is haram and not because the candidates are
unworthy).

6. The intended benefit therein should be defined by the Shariah

As stated above, since the Sharii harm doesn‟t exist, the discussion regarding intended benefit
doesn‟t arise. Most scholars have discussed that Sharii benefits are protection of life or
protecting an obligation. Plainly, these are not the immediate benefits people refer to with respect
to voting. Material benefits, personal benefits and social benefits that are involved in this context
are not the benefits that the Shara includes in the discussion related to the principle.

7. Shariah should define which one is lesser of the two evils

It is said that Muslims should vote for a candidate who is less harmful based on the principle of
lesser of two evils. This is essentially incorrect. We must clearly understand that the evil
involved herein is ruling by other than Shariah. Allah (swt) says in the Quran:

And those who do not rule by that which Allah has revealed, are indeed the Kafiroon. [Al-
Maidah 5:44]

All parties and their candidates are therefore equally evil in that context and no one is lesser evil.
Allah (swt) defines rejection of Islam as Al-fitnah. Not ruling by the just system that Allah (swt)
has given us is the cause for all the tribulations, oppression and injustice that exists in the world
today, against Muslims and non-Muslims alike. If a Muslim thinks he will be saved from
affliction by voting for a Kufr rule, he is grossly wrong. By accepting and participating in the
Kufr system, a Muslim allows and contributes to the continuation and dominance of Kufr which
is the sole cause for the oppression. So the Muslim is committing a greater haram by voting in
the Kufr system while he‟s made to believe it is a lesser haram. Moreover, if not voting in the
Kufr system would indeed lead to death of Muslims, the principle of lesser of two evils should
have lead Muslims to choose the lesser haram of suffering the oppression (or even die rejecting
or fighting Kufr) than the greater haram of preserving and promoting a Kufr system.

8. Choosing the lesser evil should definitely bring the benefit intended by the Shariah

Voting for any one, be it party A or party B, has never proven beneficial in the past. The
favorable and the unfavorable ones have been inimical to the Muslims. It is common knowledge
that the massacres and demolitions have also happened during the favorable rule in the state or at
centre. The standards of Muslims have been on the downward path for decades, irrespective of
who came to power. Muslims are told to acknowledge things like the submission of the Sachar
Committee report as a great achievement while it was merely a documented statement of the
reality of the Muslims, not a solution to their problems. Many such fictitious benefits are argued
as reasons to vote for a particular party. It may be true that in some cases certain palpable
material benefits were given to Muslims but from a Sharii perspective such benefits have never
been the criterion for action.

Also, a party that may be favorable towards us may not be favorable to Muslims from other
regions or countries. The most recent and apt example is that of Muslim refugees; where almost
all parties unanimously agreed that refugee problem was a national security issue. It is a well
known principle that general interests are given priority over interests of few (al maslahat al
aamat muqaddamat ala al maslahat al khaassat). So how does one islamically justify such a
selfish approach? By their own analogy, wouldn‟t we then be responsible for the oppression
towards the Muslim refugees since we empowered the oppressors with our votes?

Moreover, innumerable examples of oppression and persecution exist against persons who
religiously voted for the winning party. Despite winning, the party or its candidate could do
nothing to prevent the harm for the voters. There are a host of examples from recent times where
interests and desires of the voters have been brazenly disregarded by the winning party and the
governments proceeded with whatever they had decided.

So in essence, neither the lives nor the interests of the voters are protected. According to
Shariah, if committing the lesser haram is not removing the harm or bringing the intended
benefit, the haram is not permissible under the principle. The bitter truth is, the “lesser” or
“greater” in these cases is defined by the mind and is invariably based on who is more favorable
to the Muslims or who brings us greater personal benefit. So we see Muslim (and non-Muslim)
politicians promising us better reservations, better job opportunities, favorable verdicts for
Masjid disputes, some meager sops for Muslims or any of those unreal benefits. Thus, what was
in essence haram was incorrectly allowed on the basis of benefit rather than the Sharii hukm.
Deriving a hukm based on what our mind perceives as benefit (or loss) is clearly impermissible
in Shariah. Allah (swt) says,

Then We have put you on a plain way of commandment So follow you that and follow not the
desires of those who know not. [Al-Jathiya 18]

and Allah (swt) says,

Have you seen him who takes his own vain desires as his Ilah and Allah knowing, left him
astray, and sealed his hearing and his heart, and put a cover on his sight? Who then will guide
him after Allah? Will you not then remember? [Al-Jathiya 23]

Worse still is the fact that in recent times, in relation to voting, the principle of lesser of two evils
has been completely abandoned. The prohibition of the act is wantonly ignored and
unfortunately, some even have the temerity to say „casting our vote in the elections is the
primary obligation upon Muslims. The voter card is termed the new age weapon of the Muslims.
Sharii ahkam are dismissed and the entire discourse is based on benefit and harm. Allah (swt)
says,

“And so judge between them by what Allah has revealed and follow not their vain desires, but
beware of them lest they turn you far away from some of that which Allah has sent down to
you….” [ Al-Maidah 5:49]

and Allah (swt) says,

…you desire the good of this world, but Allah desires the Hereafter. And Allah is All-Mighty,
All-Wise. [Al-Anfal 67]

Some claim that by neglecting politics, not having political representation and not voting we
adversely impact our future and therefore, are intrinsically responsible for all the ensuing
adversity on the community. Such a claim is demonstrably false for two reasons. First, the
fundamental flaw is in the fallacy that having a representative or voicing an opinion is the same
as giving a solution. Many believe that if we have someone to raise our concerns in the
government (and we have quite a few entities already doing that), it solves our problems.
Presenting the truth about the oppression to the oppressors is plainly irrational but calling it a
solution is criminally absurd. It is similar to Sachar Committee report being heralded as a
solution. It is already discussed earlier that if committing a lesser haram is not removing the
harm then the Shariah doesn‟t permit the haram. Second, it would lead to an imputation that
Prophet (saw) should have participated in the ruling in Mecca (which he was offered and, given
his position and stature amongst the Quraysh, he was completely capable of). Since he didn‟t,
someone else took that position and imposed harsh laws upon Muslims. Therefore, he (saw) was
intrinsically responsible for the hardships Muslims faced in Mecca. This insinuation is as
preposterous as the claim that leads to it.

The real reason for the ignominy of Muslims is not abstinence from political participation in
Kufr systems rather it is our separation from the true nature of Islam. We have taken the Deen
not as a comprehensive way of life but as a set of religious and cultural rituals. We have taken
our ibadaat from Islam while we have willingly accepted Kufr, secular principles in our societal
life. The materialistic, capitalistic values of benefit and loss are slowly replacing the halal and
haram that defined our actions for centuries. And the resulting humiliation and disgrace is for all
to see. Allah (swt) says in the Quran:
…Then do you believe in a part of the Scripture and reject the rest? Then what is the
recompense of those who do so among you, except disgrace in the life of this world, and on the
Day of Resurrection they shall be consigned to the most grievous torment. And Allah is not
unaware of what you do.[Al-Baqarah 2:85]

Elections are a permissible tool in the Shari'ah to choose our representatives. The Messenger of
Allah (saw), during the Pledge of Aqabah, allowed this when he said, "Bring out from you twelve
Nuqaba to be responsible for their people's upholding of their duties." But to advocate incorrect
concepts and pass them as Islamic principles is a reprehensible thing that is worsening the
already existing confusion in the Ummah. Any justification for participating in Kufr only
contributes to maintain its dominance and delays the return of Islam.

Though the Ummah is on the slope of a spiritual-intellectual decline, we strongly believe there
will always be khair in the Ummah. Through this composition we intend to solicit that segment
of the Ummah to take on the mantle of elevating the thoughts and Islamic values in the Ummah.

Help you one another in Al-Birr and At-Taqwa but do not help one another in sin and
transgression. And fear Allâh. Verily, Allâh is Severe in punishment. [Al-Maidah 5:2]