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Abuse of ‘Blocking the Means’

Leslie Terebessy

Abstract............................................................................................................................................................. 1
Jurisprudence...................................................................................................................................................2
‘Blocking the Means’............................................................................................... 3
Why ‘Blocking the Means’ is Problematic ..................................................................................................3
Conflation of Means and Ends ................................................................................ 3
Permitting the Prohibited....................................................................................... 4
Prohibiting the Permitted....................................................................................... 4
Sudan ..................................................................................................................... 5
Fusion of Means and Ends ............................................................................................................................6
End Justifies the Means .......................................................................................... 6
Burdening the Believers ......................................................................................... 7
Effects of Blocking the Means .......................................................................................................................8
Blocking Access to Knowledge ............................................................................... 8
Prohibition of the Press .......................................................................................... 9
Murder in Ruling Families ..................................................................................... 9
Takfir of Philosophers as Heretics.......................................................................... 10
Effects of the Disparagement of Reason .........................................................10
Persecution of Dissidents ................................................................................ 11
Present-day Realities .................................................................................................................................... 11
Extremism ............................................................................................................. 11
Avoiding Suspicion................................................................................................ 11
Recommendations........................................................................................................................................ 12

Abstract
Crime entails means and ends. Crimes are perpetrated in different ways. According to the
theory of “blocking the means” an unlawful act may be prevented by blocking the means to it.
This is among the methods of arriving at rulings. The method is not a root of the law, but a
means of arriving at law.

Inspection shows that it has been abused. The reasoning behind it is flawed. Rather than
preventing crime it has actually facilitated the commission of crime. It should therefore be
discarded. It is a manifestation of overzealousness.

The expectation is that prohibiting the means to a prohibited act will prevent its perpetration.
For example, if firearms are used to kill, murder may be reduced by banning the possession of

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firearms. On the surface it seems to make sense. But a deeper look reveals flaws and the
possibility for abuse.

The teaching of “blocking the means” is presented as a root of the law. But it is not a root of
law, according to revelation. The law is the prerogative of Allah. ‘Blocking the means’ is a
juristic construct. It has been used beyond its jurisdiction and in defiance of revelation.

For example, the killing of the free thinkers (zandaqah) was justified by asserting that “free-
thinkers” had to be “eradicated” to prevent corruption. Extremists persist in calling for the
“eradication” of persons with alternative perceptions. Wayward jurists issued fatwas that cost
peoples’ lives.

‘Blocking the means’ has also been used in addition to prevent even acts that, while not illegal,
might be perceived as inappropriate. Examples encompass being together of in a secluded place
by a male and female who are not related.

The problem with the rule of “blocking the ways” is that a “way” is pronounced unlawful just
because it “could” lead to an unlawful “end.” This reasoning is highly speculative and therefore
weak, as it assumes that the act banned necessarily leads to unlawful behavior.

It appears unmindful of the fact that an unlawful act may be perpetrated using alternative
means. Thus, prohibiting a particular way does not necessarily prevent the crime being
committed in another way. The perpetrator could use a different approach to attain an equal
or comparable result.

“Blocking the means” is an aberration in jurisprudence. It requires attention. The principle is


based on a poor knowledge of the relationship between crime and the ways in which it is
perpetrated.

The misunderstanding fuses means and ends, with catastrophic results and a failure to uphold
justice, the chief purpose of the law. In practice, it has provided a perverse rationale for the
violation of the law and the perpetration of crime.

Jurisprudence
Jurisprudence is the process of deducing laws from their “roots.” The chief “root” of the law is
revelation. All additional roots extend the rulings or principles already expressed in revelation.

Additional roots according to jurists encompass the prophetic traditions, agreement of jurists,
juristic reasoning, public welfare, and juristic preference. According to revelation, God provides
legislation on what is lawful and what is unlawful. All law should aim at the realization of
justice, the foremost purpose of the shariah.

According to revelation, the virtue of justice is second to piety. Surprisingly the prophetic
traditions contain almost no traditions about justice or even ethics. They feature many
traditions about ritual.

It is advisable to refrain from enlarging rulings. Revelation warns against designating unlawful
what God made lawful and making lawful what He prohibited. Revealed rulings encompass

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the prohibitions of murder, defamation, theft, and zina. All secondary roots are subject to
revelation. No ruling should defy revelation.

‘Blocking the Means’

Sadd al dharai is “blocking a lawful means to an unlawful end.”1 The principle provides the
rationale for preventing an unlawful act by “blocking the means” to it. It prevents an unlawful
act by making the ways to an unlawful act unlawful.

The rationale is that if the end is illegal, the means to it should be also illegal. The acts that could
lead to crime are not in themselves illegal. However, they are pronounced illegal on the grounds
that they “could” lead to unlawful acts.

The precept rests on the assumption that “the means takes on the value of the ends.” This
principle could be pernicious if applied in reverse. For it may be used to justify the perpetration
of unlawful acts to “achieve” allegedly lawful ends.

Why ‘Blocking the Means’ is Problematic


The principle of blocking the means is problematic because it criminalizes deviant behaviour,
blocks access to knowledge and could be used to make the unlawful lawful. By declaring lawful
acts unlawful just because they “could” be used to perpetrate unlawful acts, the rule prevents
the performance of lawful acts that could be required to perform even praiseworthy acts.

For lawful acts facilitate not just the execution of unlawful but also lawful acts. Hence, making
a lawful act unlawful just because it could lead to an unlawful act also prevents people from
performing lawful and even praiseworthy acts. This could result in a crippling of life.

For example, the sales of firearms could be banned on the grounds that they may be used to
commit crimes. But firearms may also be used to defend against criminals. In other words,
actions that a be used to facilitate crimes may also be used for laudable purposes, for example
to protect oneself from criminals.

Conflation of Means and Ends


The rule that “the means takes on the values of the end” conflates means and ends. For it is
assumed that if the end is evil, the means is also evil. But this is not necessarily the case. The
end may be evil, but the means remains lawful.

For while a lawful act could facilitate the commission of a crime, and thus qualify as a “means”
to a crime, there is no guarantee that a lawful act necessarily leads to a crime. This is an
assumption without foundation. It is speculation.

1Akram Laldin and Hafas Furqani, “Shariah Scholars, ijtihad, and Decision Making in Islamic
Finance,” Journal of Islamic Business and Management, pp. 39 - 50, Vol 5, No. 1, 2015, p. 42,
accessed online on 11 July 2020;
https://jibm.org/wp-content/uploads/2018/05/5-Hafs-Furqani.pdf
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There are many acts that do not necessarily lead to crimes. Driving a car could lead to the crime
of murder when a person intentionally drives into a crowd of people; are we going to ban
driving cars because one person choses to use a car as a weapon?

Permitting the Prohibited


More worryingly, the rule teaches that when the end is permitted, the means to it also becomes
permitted. For the central idea in the principle, that “the means take on the value of the end”
may also be used in reverse.

Thus, if applied in reverse, the process may make unlawful acts lawful. The principle is based
on the presumption that “the means takes on the value of the end.” This means that if the end
is lawful, an unlawful means to a lawful also becomes lawful.

In this way, the application of this principle could be used to make unlawful acts lawful, to turn
what is prohibited into what is allowed. This could be dangerous. It could be used to justify
mass murder, by asserting that the end – for example an establishment of Islamic state – is
beneficial. That this has already happened is indicated by the legacy of ISIS.

ISIS justified mass murder by asserting that this was required to bring about the Islamic
regime. This was Machiavellian and equivalent to asserting that “the end justifies the means.”
If the end is acceptable, the means also become acceptable. This is flawed reasoning.

This rationale appears unaware of the fact that an offense may be perpetrated using different
ways. Prohibiting one way does not guarantee that a person will not commit the same crime
using an alternative method. For example, if firearms are made illegal, a person could still
commit murder by using alternative means.

Prohibiting the Permitted


The principle of “blocking the means” criminalises a lawful act on the grounds that it could
lead to crime. It criminalizes behaviour that is merely reprehensible. It confuses crime with
reprehensible behavior.

Thus, for example, the rule makes it a crime – known as “close proximity” – for unmarried
people to be together in an isolated place. For this “may” lead to the offense of adultery. No
impropriety has to take place; merely being alone together is a crime.

The emphasis here is on “could lead” because there is no certainty that it “will lead” to a crime.
In different words, the presumption is that the two people, if given the opportunity, will
commit an offense rather than follow the law. It appears to presume that people are predisposed
to perpetrate unlawful acts.

This reflects a rather negative view of people and is at variance with the revealed requirement
to “avoid suspicion.” This negative perception of people is alien to revelation. It goes against the
expectation that we should think well of people and extend to them the benefit of doubt.

For a man to be in a secluded place with an unrelated female is not a crime according to
revelation. It may be inappropriate, but it is not a crime. Criminalization of inappropriate

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conduct shows overzealousness in jurisprudence and acting according to passion rather than
revelation.

Sudan
In Sudan it was an offense for males to speak to females who were not their relatives even in
public space, for example at a bus stop. The crime of speaking to a female who was not a relative
was designated “attempted unlawful sexual intercourse.” Merely speaking in public by a male
to a female who was not related to him was deemed to be a crime and proof that a crime had
taken place.

The “reasoning” is beyond bizarre. It appears to betray an abdication of reason. It reflects


hostility against reason and rationalists by traditionists at the time of Musa al-Hadi and after the
rule of the Mu’tazilites.

To think that a person would attempt “illegal sexual intercourse” in a public place is past the
pale of belief. It indicates the extent to which the reasoning (ijtihad) of the authors of this “law”
deteriorated.

This is an example of the Boko Haram kind of “thinking,” that will ban all books just because
a few books could be harmful to readers. This “reasoning” is a legacy of the shutting of the gates
to reasoning centuries ago. It is a result of the atrophy of reasoning, which produced what has
been termed as “a crisis in the Muslim mind.”

There is no evidence in revelation to support the criminalization of being together with another
person who is not a relative. It seems that this law is a result of flawed reasoning, fueled by
excessive zeal and suspicion.

A person may wish to buy a laptop to watch educational programs. But his guardian assumes
that the person will watch pornography. Accordingly, he will prevent him from being a
computer. This way of reasoning disregards the fact that technology is neutral; it may be used
in beneficial and harmful ways.

Preventing people from using technology is not the right way to teach ethics. The right way is
to explain to them why watching pornography is wrong and why we should refrain from it.

Behind the urge to ban acts which, in the perception of a few, might lead to unlawful activity
appears to be the urge to decide for people what they may or may not do, rather than entrust
them with the responsibility to make the right choices. This appears to be a result of excessive
zeal.

It reflects a patronising attitude and treats people as underage persons who are unable to know
the difference between right and wrong, based on knowledge of religion. This reflects a police-
like approach unfit for persons who take responsibility for their actions.

The policing approach to morality in turn reinforces an ethos of dependence among persons
subjected to it. They are unlikely to take responsibility for their acts and will probably remain
reliant on on their patrons for the rest of their lives. This perpetuates an ethos of dependency.

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Watching pornography is evil because it violates and corrupts the person. It lures the person to
participate in unseemly acts. That is why it should be abhorred. It may also lead to the abuse
and sexual exploitation.

Good intentions do not justify an evil act. As a popular saying puts it, “The road to hell is paved
with good intentions.” We must have both good intentions and to act well.

Fusion of Means and Ends


The assumption that “the means take on the value of the end” is based upon a problematic
perception of crime. A crime is an act that defies a rule of God and wreaks harm. Laws are in
place to protect, not to cause harm, whether to people, animals or to the environment.

The law is there to realise justice, which in revelation is referred to as second to piety. The
problematic perception arises from a conflation of the means to a crime with the crime itself.
For it rests on the conflation of means and ends, the abolition of the difference between the two.

This “rationale” does not appear to be aware of the fact that the methods used to commit
crimes are also used to perform worthy acts, for example helping to teach the word of God. The
Internet may be used to teach about Islam, not just to spread pornography. Thus, the reasoning
behind this “root” is problematic, if not perilous.

For the principle that “the means takes on the value of the end” may also be used to endorse
breaking the law to attain an allegedly beneficial end. This is the teaching of Machiavelli and is
hardly different from teaching that the end justifies the means.

The prohibition of a lawful act takes place on the assumption that a lawful act “may” lead to a
crime. Is it enough to declare a lawful act unlawful just because it may lead to a crime? Under
this definition many lawful acts could be declared illegal, as many lawful acts may lead to
crimes. For example, purchasing a knife might be made unlawful because it could lead to a
crime: a person might kill another person with the knife.

Are we going to make buying knives unlawful because people could be harmed by them? Just
because an unlawful act may follow a lawful act does not mean that lawful acts that precedes
unlawful acts should also be unlawful. Since many acts may lead to crimes, this could result in
the criminalisation of lawful acts.

End Justifies the Means


Particular acts have been designated unlawful as they may lead to crimes. By this definition,
even driving an automobile might be pronounced unlawful as it may be used by a person to
kill or injure people. Alcohol refineries have been closed by an appeal to this principle.

Inspection reveals that the theory is problematic as it may be abused to justify the attainment
of a lawful end by unlawful means. It could be used to transform unlawful acts into lawful acts.

The principle of “blocking the means” could be used to justify the perception that the end
justifies the means. For it could be used to provide a Machiavellian justification to perpetrate
mass killings to realize an allegedly worthy end, for example the establishment of an allegedly
Islamic regime.
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This view has been attributed to Niccolò Machiavelli. For prohibiting an act that can lead to
beneficial results we may also prevent good deeds, while intending to prevent evil deeds.

The practice is problematic because it runs counter to the principle of original permissibility.
According to this principle, everything is permitted unless it is prohibited by a text.

The application of the principle of “blocking the means” expanded the range of offenses, and
re-classified behaviour that is merely deviant into a crime. It fails to appreciate the difference
between crime and inappropriate behavior. It also explains the proliferation of prohibitions that
may make life impossible.

Moreover, the rule of “bocking the means” could be used to prohibit what Allah permitted.
Revelation prohibits making the lawful unlawful and the unlawful lawful. On exception is the
case of necessity.

In extreme cases, Muslims are permitted to consume pork to prevent starving to death. But
this applies in extreme cases. It has been loosened to justify the charging and payment of
interest for example in car and housing loans.

The application of this principle, manifested for example in khalwat searches, may be driven
by the urge to bully. It provides grounds for the violation of people’s dignity. It is as repugnant
as it is pernicious.

Burdening the Believers


While Islam is a straightforward religion, a few jurists appear to complicate it. They prohibit
actions that are not prohibited in the Quran, and they permit action – such as the collection
and payment of interest – which are prohibited:

God intends for you ease. The religion is easy, beautiful and simply perfect.
Why make things hard? The Qur’an reads: “Allah intends for you ease and does
not intend for you hardship.” (Qur’an, 2:185)

This verse explains that Islam is easy to follow and rather encourages us to
create ease in religion. Unfortunately some Muslims, including some reverts,
are under the misconception that the more stringent they are in following
religion, the more pious they become. This is totally in contradiction to what
our religion teaches us. The misconception is a result of lack of understanding
of religion and at times drives some people away from religion, mainly because
of the way it is presented to them.

Some people have aimed at causing religion to deviate from its essence,
preventing religion from being practiced by attempting to add on many
difficult practices and superstitions to it. Such practices have sadly resulted in
people deviating from Islam.2

2Deana Nassar, “Islam is simple, don’t make it complicated,” Arab News, April 03, 2015,
accessed on 8 Sep. 2020; https://www.arabnews.com/islam-perspective/news/726926
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Thus, rulings that unnecessarily complicate Islam are doing a disservice to Islam. In fact, they
make it less attractive and thereby provide incentives to believers to leave and incentives to
potential converts not to come to Islam.

Effects of Blocking the Means


The application of the doctrine of “blocking the means” has had adverse effects. Collectively,
they had the effect of slowing down the growth of the Muslim community. Examples of the
abuse of the concept of “blocking the means” may be found in the way this principle was
applied in the past, where unlawful acts were pronounced legal. These declarations at times
took the form of fatawa or juristic views.

Blocking Access to Knowledge


The principle of “blocking the means” hampered the acquisition of knowledge. This took the
form of the persecution of the rationalists under Musa al-Hadi and then the form of the “closing
of the gates to ijtihad.”

The principle of “blocking the means” was also used to block access to intellectual activity, on
the pretext that Muslims had to be protected from “deviant” or free thinking. An example of
this was the “shutting of the gates to reasoning” hindered access to knowledge and slowed the
evolution of the Islamic civilisation. There have even been cases of the destruction of books.

In a few universities in the world access to the Internet is blocked for comparable reasons. What
is overlooked, however, is that products of technology may be used for praiseworthy aims, too.
Thus, forbidding a particular technology prevents it from not just evil but also beneficial uses.

In Nigeria at one time the government prohibited then use of information technology,
computers in particular, on the grounds that people might watch pornography on them. This
had the unfortunate side effect of slowing down development and reducing the efficiency of
government services.3

3I recall wanting the students of English at an Islamic University to write a paragraph about
the “Battle at Kruger.” At present with eighty-two million views, the brief film features buffalos
rescuing a buffalo from two different kinds of predators.
The calf was pulled by alligators from the lake and by predators from the shoreline. It appeared
that it was the end for the calf. But the unexpected happened. The buffaloes tackled both
predators and rescued the calf.
I wanted the students to write about the way the buffalos applied the principle “one for all and
all for one.” Alas, I realized that the university would not allow access to YouTube, based no
doubt on the theory of “blocking the means.” By blocking YouTube, the university blocked the
means to watch material in poor taste; however, it also blocked access to learning.
This is among the reasons that the Muslim civilization is unable to emerge from its academic
atrophy, first inflicted on it by the closing of the gates to ijtihad and reinforced by the subsequent
belittling of reason as a faculty of knowledge.
https://www.youtube.com/watch?v=LU8DDYz68kM
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Prohibition of the Press
Another example of the way in which the application of the teaching of “blocking the means”
retarded the evolution of the Islamic civilization is provided by the prohibition of the printing
press in Turkey. The Ottomans, under sultan Bayezid II, prohibited the use of the printing
press, especially to print religious texts in 1483 for years on the grounds that its use could spread
evil.

In 1515 the Ottoman Sultan Selim I, persuaded by the influential clerics of the
realm, issued a decree that imposed death penalty on anyone using a printing
press, invented in Germany in 1455, to print books in Turkish or Arabic. The
ban remained in force for the next 270 years … The ban on the printing press
was not the only ban to reckon with. There were other bans, taboos and
restrictions which, compounded by sheer lack of curiosity, placed the Ottoman
Empire in a self-imposed intellectual quarantine.4

The punishment for violating the prohibition was the death penalty. It did not seem to matter
to the authors of the ban that the printing press could also be used to spread good, for example
the knowledge of revelation.

The banning of the printing press slowed the spread of knowledge in the Ottoman empire, in
particular religious knowledge, and thus contributed to its decline and eventual demise. It
amounted toa prohibition of the freedom of expression.

Murder in Ruling Families


Another example of how the rule of “blocking the means” was used to justify perpetration of
criminal acts is provided by the killing of rivals by rulers to prevent wars of succession. A crime
was justified by saying that this had to be done to prevent “fitna” or civil war. The advocates of
this abhorrent practice even referred to – out of context – the verse from the Quran which states
“fitna is worse than killing.” The Turkish sultanate practiced:

the policy of ritually murdering a significant proportion of the royal family


whenever a sultan died … Ottoman succession had been governed by the “law
of fratricide” drawn up by Mehmed II in the middle of the 15th century. Under
the terms of this remarkable piece of legislation, whichever member of the
ruling dynasty succeeded in seizing the throne on the death of the old sultan
was not merely permitted, but enjoined, to murder all his brothers (together
with any inconvenient uncles and cousins) in order to reduce the risk of
subsequent rebellion and civil war. Although it was not invariably applied,
Mehmed’s law resulted in the deaths of at least 80 members of the House of
Osman over a period of 150 years. These victims included all 19 siblings of
Sultan Mehmed III—some of whom were still infants at the breast, but all of

4Iqbal Jafar, “Origins of Islam’s crises,” The Friday Times, 19 Jun. 2015, accessed on 1 Aug.
2017;
http://www.thefridaytimes.com/tft/origins-of-islams-crises/
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whom were strangled with silk handkerchiefs immediately after their brother’s
accession in 1595.5

An official fatwa (juristic perception) was announced to justify the killing of a brother of a ruler.
Here we have an example of a legalisation of crime by recourse to the principle of sadd al-dharai.

This is hardly in keeping with the teaching of revelation. Taking life, unless it be punishment
for a capital offence, decided upon after the due process of law, is expressly prohibited in
revelation. No amount of juristic reasoning can change that.

If the means take on the value of the end, then mass killings to attain a “just” society become
acceptable because the end is “desirable.” Acts of violence might be justified by extremists
proclaiming to have worthy goals, for example establishing a caliphate. The principle that the
means take on the value of the end teaches that the end justifies the means.

Takfir of Philosophers as Heretics


Anti-rationalism reached a peak with the denunciation of the philosophers as heretics. This
was bound to have an adverse effect on the development of sciences. Who would wish to
undertake the study of science if it meant that one could be declared a heretic and an apostate?

To be declared a heretic was equivalent to getting a death sentence. The declaration of


philosophers as heretics produced an environment of fear that retarded the development of
science and technology within the Muslim community.

The declaration of the philosophers as heretics was the culmination of antinationalism that
resumed with the shutting of the gates to ijtihad around the year 1000. The gates to ijtihad were
shut to prevent the evils of misconstruing the teaching of revelation and departing from faith.

But the shutting of the gates to ijtihad, and the denigration of reasoning this implied, together
with the denunciation of philosophers had another, unintended effect. It slowed the
development of present-day knowledge in the Muslim empire.

Effects of the Disparagement of Reason


The Muslim world fell behind in every scientific discipline, a condition that persists to this day.
The corrosive effects of unrestrained traditionism inflicted a terrible catastrophe on the Muslim
civilization.

By leaving it exposed due to lack of arms to protect itself, the jurists effectively rendered
Muslims incapable of defending themselves. While Muslim theologians succeeded in reviving
the religious sciences, they did so by condemning present-day disciplines, and with them, the
Muslim civilization itself to technological stagnation.

5Mike Dash, “The Ottoman Empire’s Life-or-Death Race,” smithsonianmag.com, March 22,
2012 Accessed 12 Sep. 2020;
https://www.smithsonianmag.com/history/the-ottoman-empires-life-or-death-race-
164064882/
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When the Mongols came in 1258, Muslims found themselves at the mercy of the invaders. This
asymmetry in military and economic capability persists to the present and is attested to by the
prevailing geo-political realities.

Persecution of Dissidents
The first attempt to “protect” faith took place during the purges of philosophers by Musa al-
Hadi in 786. Five thousand scientists were reportedly put to death to “protect” faith. The
persecution of the scientists resumed with the return of the traditionists to power under
Mutawakkil in 849.

Present-day Realities
Present-day realities confirm a deficit of rationality. This is confirmed by the continuation of
irrational acts, such as those performed by ISIS and similar organizations. What is a required
is a rehabilitation of reasoning and a re-assessment of the principle of “blocking the means.”

Extremism
An example is a fatwa making attacks on non-combatants lawful. To refer to these acts as
“martyrdom operations” is beyond the pale of belief. It reveals the extent to which a few
Muslims transformed the teaching of revelation into purveyor of violence.

Avoiding Suspicion
What exactly does it mean to say that an act “may lead to a crime”? An act may or may not lead
to a crime. As a rule, we should avoid thinking badly of people. This should help cement the
bonds of the community rather than tear it apart.

We cannot just assume that a person who does any act has the intent to perpetrate a crime.
There is a concept of husn zann, thinking well of people. The Quran advises us to avoid
suspicion:

O ye who believe! Avoid suspicion as much (as possible): for suspicion in some
cases is a sin: And spy not on each other behind their backs. Would any of you
like to eat the flesh of his dead brother? Nay, ye would abhor it ... But fear God:
For God is Oft-Returning, Most Merciful.6

Revelation advises against unwarranted suspicion. The Quran warns against prohibiting what
Allah swt has permitted. Thus, this concept is prone to abuse as many acts could lead to crimes
that do not necessarily lead to crimes.

6 Quran, 49: 12, translated by a. Yusuf Ali, accessed on 12 July 2020;


https://www.altafsir.com/ViewTranslations.asp?Display=yes&SoraNo=49&Ayah=12&toAya
h=12&Language=2&LanguageID=1&TranslationBook=4
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Recommendations
For the reasons discussed, it is advisable to place the principle of blocking the means into
abeyance. The act of close proximity should be reclassified as reprehensible rather than illegal.
Courses on ethics should be offered in the universities. Crimes should never be made lawful
under any circumstances and for whatever reasons. The injunctions of revelations take priority
in relation to all secondary roots of the law.

It is necessary to be on guard against the perceptions of pseudo-jurists who abused this


procedure by “authorizing” allegedly “martyrdom operations” and related aberrations.

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