The principles of "Ahwanu ash-Sharrain" or "Akhafu adh-Dhararain 

" are shar'iah principles

according to a number of jurists. Both according to the scholars who took it, refer to the same
meaning. That is, it is permissible to do one of the two unlawful acts, namely the act which is
less unlawful between the two acts if the mukallaf cannot avoid both of them, because that is
not possible, i.e., beyond his capabilities from all sides. And he has no choice but to perform
one of the two unlawful acts.

Allah SWT says:

"Allah does not burden a person except according to his ability" (Al-Baqarah:286)
 
And Allah SWT says:
"So, fear Allah according to your ability" (At-Taghabun:16)
 
According to those who advocate it, this rule does not apply if there is a provision to avoid
the two unlawful acts at once without the occurrence of a greater harm. It only applies when
it is not possible to prevent oneself from the two unlawful acts such that he is forced to
choose one prohibited action in order to avoid the occurrence of a greater prohibition. So, he
chooses the lighter of the two dharar. Also, the scholars did not make the determination of
the lightness of the two dharar according to human mind but according to the sharia'h laws.
Keeping two lives is more important than keeping one life, guarding three lives is more
important… and so one. And guarding the life is prioritized over protecting property,
guarding Dar al-Islam is included in guarding religion, and that is more important than
protecting life and property. Likewise, jihad and al-imamah (Al-Khilafah), both of which are
included in maintaining religion, are included in the first and foremost dharurah. Ash-Shatibi
said in al-Muwafaqât : "Indeed the soul is respected, guarded and required to be revived and
if there is a matter between reviving the soul and the disappearance of its assets, or the loss of
the soul and the maintenance of property, then reviving the soul is more important ...".

Among the examples mentioned by the scholars as the application of this rule:
1. If a mother has difficulty in giving birth and there is an inability to save the mother
and the fetus at the same time and the case requires a quick decision: saving the
mother would mean death of the fetus and saving the fetus would mean death of
the mother. And if the case is left unchecked and an operation is not carried out
which could save one life, it will cause the death of both at once. In a situation like
this, the principle of ahwanu ash-sharrain (milder evil) or aqallu al-
haramain (that which is less unlawful) or akhafu al-mafsadatain (lighter of the
mafsadat) is used by prioritizing an operation that saves who is required to be
saved, namely the mother, even though the act itself leads to a certain death of the
fetus.
2. A person is faced with destruction or death by someone else, or a severe attack on
his body or organs will be afflicted, or a woman will be adulterated (raped), in
front of a mukallaf who is able to prevent these evils but the time to perform the
fardh prayers is almost over. Then, does he prevent the haraam and miss the
performance of the obligation (prayer) or does he fulfil the obligation on time and
let the haraam to occur? Since it is impossible to do both things at once, the
principle is applied. The determination between the two comes from sharia'h that
makes the elimination of the mentioned prohibitions more important than the
fulfilment of the obligation mentioned. And, if it were possible to perform both
obligations at the same time, it would be obligatory for both of them to be
performed.
 3. Imam al-Ghazali and Izzuddin bin Abdus-Salam (rah) mentioned how the principle
of ahwanu ash-sharrain is applied. Al-'Izz said in his book Qawâ'idu al-A h kâm
fî Mashalih al-Anâm: "If we meet certain mafsadat, and if it was possible to
prevent them, we prevent them. And if we are unable to prevent everything, then
we prevent the most mafsadat and the next and so on or the worst and the next and
so on…”. Then he mentions examples: "a person is forced to kill another person
and if he is given the choice that the other person will be saved if he himself
patiently allowed that he be killed, then he must prevent the mafsadat of killing
another person by being patient upon his own killing, because his patience upon
being killed is lesser compared to the sin of committing murder of another
person…”. This is a clear example that it is a lighter choice of mafsadat or haram,
because he cannot be separated from the two of them, and if he can block both
mafsadat at once then it is obligatory for him.

In another example he says: "Similarly if he is threatened with death or having his

organs cut off and is forced to give false testimony/lie or judge with falsehood or
make lawful (eating) something that is forbidden, then he is not allowed to give
false testimony and cannot make a false judgment, because surrendering to be
killed is better than causing the killing of an innocent Muslim. If one is threatened
with having his organs cut off, or his honor being attacked, he must not give false
testimony. Instead, he must be patient with being killed because surrendering to be
killed is better than killing another Muslim.

The primary precondition that must be met in order to refer to the principle of "akhafu al-
haramain or akhafu al-mafsadatain" is not being able to avoid the two prohibitions altogether
or blocking both of them at once.

These were the examples of the application of the "akhafu adh-dhararain" according to what
was stated by the classical scholars who adopted the rule. The misapplication of this principle
today by some scholars using misguidance and false reasons, is only taking Muslims away
from the shari'ah.

The scholars who use this rule to allow a haram without any sharii evidence and justify their
actions under the pretext of fear, expulsion or imprisonment, are only misapplying the
principle and encouraging a haram within the Ummah.

Then there are those who say, “we participate in the government of kufr even though it is
haram, so that we do not allow the various government positions to be taken by the wicked,
because allowing that would be a greater haram.” This is a clear misapplication of the
principle. It's like the person who says I would work in a bar that sells alcohol and make
money from it rather than allowing the disbeliever to make a fortune from it.

When someone is offered two unlawful things and then he chooses to do the lesser of the two
evils while in reality he was able to avoid committing both, then this does not fit in the
sharii’ application of this principle. People say, choose a Muslim leader even if he is secular
or wicked, or support a particular party and don't support others because this party helps
Muslims and the rest don't.

The fact is, these two options that are thrust upon us are haram. We must not elect a secular
person and delegate him to represent Muslims in expressing opinions because he does not
adhere to Islam and because he commits unlawful acts such as enactment of law (legislation)
or approving illegitimate projects and like demanding accountability in haram and accepting
and working in it. In essence, he forbids good and commands evil. Therefore, it is not
permissible to choose anyone of the two, because choosing either of them is haram, and not
choosing either of them is well within one's ability.

And it is not a correct application of the principle of "akhafu adh-dhararain " when two
unlawful acts are offered to a Muslim, while avoiding both evil acts is still within his ability.
Then, he chooses the lesser one according to his desires and does it in order to avoid the
difficulty that may arise while preventing himself from committing both prohibitions. But, in
origin, he is obliged to protect himself from committing any prohibition as long as he is able
to do so according to the laws of sharia'h.

It can be said that dharar (harm) principle is the most widely used usul principle, both as a
legal justification and to seek rukhsah (dispensation), especially in certain contexts. For
example, when there are two accidents that are seen as clashing, which one to choose? From
this, the principle known as the akhaffu ad-dhararain (lesser of the two harms) was born, or
ahwan as-sharrain (lesser of the two evils). With a different editor, such a rule is found
among others in the work of Al-Ghazali, al-Mustasfâ fî' 'Ilm al-Usul, p. 178 and As-Suyuthi,
al-Ashaybâh wa an-Nadhâ'ir, p. 87. In this book study rubric, we will discuss the above rules
in more detail, as well as reposition them in the correct position,because the rule is often used
out of context. Happy reading!

As is known, the scholars of ushul have formulated the following rules:

If two evils or harms collide, the one with the more serious harm and the greater the harm
must be removed.

If two evils collide, then what must be considered is the one with the greater harm, by
carrying out the lighter one.

This rule became known as the rule: akhaffu ad-dhararayn (two of the lesser harms), or
ahwan as-sharrayn (two of the lesser evils). Regarding the evidence that is used as a support,
among others, the words of the Prophet:

If two dangers meet then the least (danger) should be chosen.

However, in its implementation, the use of the dharar rule is often rash, and even out of
context. In fact, as sharia law, this rule is not a proposition, although it can be derived in other
cases. It's just that, in other cases, this rule was revealed as sharia law, its status is like tahqiq
al-manâth, or proof of facts. That is, if the facts referred to in the law are the same as in other
cases, those other facts are the same facts as the original legal facts, so the law is the
same. Therefore, to implement this rule, the first thing that must be understood is the
limitation of the law of dharar (defense) itself.

Dharar Limitation
Etymologically, according to al-Jurjani, dharar is the root word of dharûrah, which can
connote something that happens, which incidentally cannot be avoided (an-nâzil mimmâ lâ
madfa' lahu). As for the terminology of usul scholars, dharûrah are:
1. It reaches the limit when something that is prohibited is not obtained, it will be harm or
perish, or almost (perish or be harmed).
2.  A very urgent necessity, which is feared will cause destruction or death.

According to Muhammad Husayn Abdullah, dharar (madarat) is the opposite of naf'

(benefit). According to him, what is included in this understanding is when someone inflicts
harm, both on himself and others. These two contexts, namely inflicting harm on oneself and
others, are included in the general hadith: Lâ dharar wa lâ dhirâr (There is no danger and
repay evil with evil). Because, the word dharar in the hadith is in the form of nâkirah, which
is in a negative sentence so that it has a general connotation.

According to Shaykh Taqiyuddin an-Nabhani, the scope of this dharar law includes two
things:

(1)  Something in itself is dangerous and dangerous even though there is no call from the
maker of the Shari'a indicating a demand to implement, leave, or choose it. The dangerous or
dangerous status itself has become a proof for its prohibition, because the Shari'a Maker has
forbidden the dharar (dangerous and dangerous things), as the Prophet SAW said:
There is no danger and repay evil with evil (HR Malik in al-Muwaththa').

(2)  Something that has been generally permitted by the makers of the Shari'a, but among the
ones that are allowed there are some that are harmful so that one by one that endangers or
causes the occurrence of the danger can be a proof for its prohibition. This is because the
makers of the Shari'a have forbidden one by one case that is dangerous or causes harm, even
though in general the case is still permissible. This is based on the words of the Prophet. to
the companions in the Battle of Tabuk, when he had passed a boulder, then stopped there, and
the people drew water from his well. While they were resting, the Prophet said:

Do not drink the water and do not use it to perform ablution for prayer (HR Ibn Wahab).

In fact, the law on water is absolutely permissible, but in the case of well water, it is haraam,
because it is dangerous.

Both of the above contexts can apply to things and actions. Poison, for example, is a
dangerous object if drunk, and can endanger the life of the drinker. Meanwhile, the action of
a bullfighter who provokes a bull attack in the performance arena, for example, is a
dangerous act, and can endanger the safety of the bullfighter. Therefore, both poison and the
action of the matador are both forbidden. The proof of its prohibition lies in the danger aspect
contained in it.

As for the US dollar, as a foreign currency, for example, it is forbidden to trade when it
endangers the state's financial stability, even though other foreign currencies are still
permitted to be traded. Likewise, giving information to regimes that are hostile to Islam,
which causes the suppression of da'wah and its proponents, is haraam, even though the law
provides information about da'wah in absolute terms. Regarding the argument for the
prohibition, it can be returned to the hadith of a stone above.
As mentioned above, that dharar (damage) can happen to oneself and can also happen to
other people. Dharar (damage) that befalls others, namely when someone does something that
harms others, is absolutely unlawful.
As for the dharar (damage) that befalls oneself, that is, when someone does something that
could harm themselves, then the law can be makruh, sunnah, or haram. The Prophet's
prohibition against his companions from entering the plague area (ardh thâ'ûn), for example,
is a non-binding prohibition (ghayr jazim), or makruh. The attitude of a woman prefers to be
patient in return for heaven for her patience rather than being prayed for by the Prophet. so
that his swollen leg is healed by Allah is an example of an evil deed that is obligatory.

While dharar which is the implication of actions that are syar'i permissible, such as jihad and
da'wah, which can lead to death, then the law is still ordered. Therefore, the existence of
dharar which is the implication of jihad or da'wah cannot change the law which originally
was obligatory to become haram, because there are disadvantages. On the other hand,
martyrdom—both in jihad and da'wah—is a matter declared by Allah as goodness, not
dharar. This is praised by Allah in His words:
]ً‫[ ِمنَ ْال ُمْؤ ِمنِينَ ا ٌل ا ا اهَدُوا هللاَ لَ ْي ِه ا لُوا ال‬
Among the believers there are those who keep what they have promised Allah. Then among
them there are those who fall (as martyrdom) and among them there are also those who are
waiting (it is their turn to be martyred); they did not change (the promise). (Surat al-Ahzab
[33]: 23).

Application of the Akhaffu ad-Dhararyn Rule

In addition to the hadith stated by the author of al-Mawâhib al-Jalîl above, there are several
other traditions that can be used as arguments for this rule, including the actions of the
Prophet Muhammad, which also shows how the Prophet Muhammad saw. make a choice,
when faced with two clashing dharar (defense). This happened when the Prophet and his
companions fought in the month of Ramadan. Fasting in these conditions can cause the
stamina of the combat troops to be not optimal and result in the Muslim troops being defeated
on the battlefield. In this case, the Apostle ordered the Companions to break the fast, so that
the stamina of the troops was excellent, and in the end they could carry out jihad properly and
perfectly so that victory would be on their side.

Indeed, the law of breaking the fast in the month of Ramadan is haram, but defeat in battle
due to lack of stamina due to intentional factors is also haram, even more forbidden than
breaking the fast in the month of Ramadan. Because, defeat in battle is more harmful and
more dangerous for the Muslims. Therefore, in a case like this, the Messenger of Allah.
ordered his troops to break their fast. That is, he ordered his companions to carry out actions
that are lighter in the level of haraam. This applies in the context when two laws that both
cause dharar (damage) cannot be done together at the same time.

Another example, on the battlefield, the troops of the Muslims are forbidden to destroy the
weapons they have. Because, Allah ordered the Muslim troops to always be vigilant and even
have to carry weapons in the area of hatta battle even at the time of prayer. Allah SWT says
in QS an-Nisa [4]: 102, which means:
"Let them be alert and hold their weapons. The disbelievers aspire that you will be careless of
your weapons and possessions and then they will attack you all at once.”
This verse shows that destroying weapons is haram because it is more dangerous than laying
down weapons. However, if the weapon is not destroyed, it is suspected that it will be
controlled by the enemy, then the weapon must be destroyed so that the enemy does not
become stronger than the Muslims. Even the Messenger of Allah. has forbidden anything that
causes harm (dharar) to Muslims. He said:
'There is no danger and repay evil with evil' (HR Ahlad and Ibn Majah).

Therefore, destroying the weapons of the Muslims is haraam and the enemy's control over
them is also haraam, but destroying these weapons would be less dangerous. Therefore, the
akhaffu adz-dzararayn rule applies.

However, if the two laws that cause harm can be done at the same time, then the law to do
both is equally obligatory. No more options; which of the two is lighter in dharar (madarat).
Because, in other cases, such as in the case of the Battle of Badr, the Apostle did not order his
troops to break their fast, when their fasting did not result in the loss of their prime stamina.

However, when a person is not in the context of choosing one of the two dharars, then in this
context there is also no choice; which of the two has the lightest dharar. For example, the
localization of prostitution that is clearly dharar is punished with jaiz (not haram) on the
grounds of avoiding a bigger dharar, namely the development of illegal sex transactions. This
is an example of the incorrect use of the akhaffu ad-dhararyn rule. This is because the two
forms of dharar are avoidable violations of sharia law, and do not require people to choose
one of the two.

Conclusion

From the description above, it can be concluded that the use of the Akhaffu ad-Dhararyn rule
must pay attention to the following provisions:

1.  If each of these dharars is of the same position—both dangerous and dangerous, while
each cannot be avoided (either by abandoning the order or carrying out the prohibition)—
then the one that must be chosen is which of the two dharars is the lightest. This is where the
akhaffu ad-dhararayn rule applies.
2.  If each of these dharars is of the same position—both dangerous and dangerous, while
each of them can be avoided (either by carrying out orders or leaving the prohibitions)—then
it is not permissible to choose which of the two dharars is the lightest. In this case, the
akhaffu ad-dhararayn rule clearly does not apply.
3.  When a person is not in the context of choosing one of the two dharars, then in this
context there is also no choice; which of the two has the lightest dharar. In this case, the
akhaffu ad-dhararayn rule clearly cannot be used.

In the study of Maqasid Sharia, we recognize the term " Adh-Dharuriyyat al Khams " (five
emergency words), namely Religion, Intellect, Soul, Descendants and Wealth. These five
things are always guarded by the Shari'a, because they are primary, very important and urgent
for human survival in this world and their success in the hereafter. So, when these five cases,
or one of them is in a threatened condition, the situation can be declared an "emergency
situation". And in the rules of fiqh it is said, " Adh-Dharuratu tubiihu al Mahdzuraat "
(Emergencies allow things that are prohibited).
In the context of politics in this country, factually, leaders are elected through a political
mechanism that refers to a democratic system. We also know that democracy is not from
Islam, is against the Shari'a, and even, its principles contain kufr. However, participating in
this system is not absolutely unlawful. In an emergency situation, the act can be legalized.
Having an infidel leader or an anti-Islamic figure is certainly a madhorot that threatens the
existence of the "five emergency cases above". How many Islamic countries have turned into
infidel countries due to infidel rulers or leaders, such as Spain, Iran and others. How many
Muslims have lost their lives and property because they were led by infidels, as happened in
Syria, Burma and others.

From a religious point of view it is very clear. Infidel or anti-Islamic leaders will block
people from the path of Allah, limit the space for preachers to preach, allow falsehood to
spread everywhere, even to the extent of massacring Muslim experts.

So, choosing to participate in democratic products such as elections or presidential elections,

is not the attitude of someone who has a tempeh, ABG or kabayan mentality, nor is it an
attitude of fear of other than Allah. Such accusations are very heinous, even though choosing
the attitude to participate is also supported by the fatwas of many scholars, either personally
or collectively. Choosing to participate actually shows an attitude of vigilance, noble
orientation and intention to carry out the will of the Shari'a to seek Ishlah (improvement)
and taghyiir al munkar (change munkar) according to ability.

And one thing that must be understood, that improvement requires a process and changing
munkar does not mean eliminating munkar completely, but also means reducing munkar and
the potential dangers that threaten it. The attitude of choosing to participate is also in the
context of practicing the word of God, " Fattaqullaha mash tatho'tum " ( Fear God according
to ability).

Talking about democracy, we can at least look at it from two sides. The first is to talk about
democracy in terms of the concepts and principles of democracy, and what are our views and
beliefs about it. And this is clear, as stated above.

The second is talking about democracy in terms of our attitude and response to the system,
which in fact, there is no other political system in this country. Attitude or response to
something, of course, is not only determined by a single variable; namely belief. Attitudes or
responses, apart from being determined by beliefs, are also influenced by other variables,
namely the situations and conditions that surround us when we have to take a stand and
determine the response.

So sometimes, what we believe is bad, we can do. And conversely, things that we view as
good, we may leave. When do we choose the bad? and when do we turn out to leave the
good? Well, this then became the basis for the emergence of the Shari'a concept, " Jalbul
Mashalih wa Taktsiiruhaa wa Dar`ul Mafasid wa Taqliiluhaa " ( Bringing benefits and
multiplying them, as well as preventing harm and reducing it). Yes, these considerations of
benefit and mafsadah are the answer.

We can do something bad, to achieve a great benefit, or to prevent a worse evil. As we also
sometimes leave the good, to achieve a greater good, or to prevent greater harm. So that in
the Shari'a there are also rules, " Tarkul waajib limaa huwa aujab " (Leaving the obligatory
to achieve the more obligatory), " Irtikaabu akhaffu adh-dhararain " (choosing the lightest
harm), or " Irtikaabu al mafsadatish shughraa li daf'il mafsadatil kubraa (chooses a small
harm to prevent a big one)
Likewise, in our attitude and response to democracy, even though we consider democracy to
be bad, it does not always mean that the attitude we choose is to completely abandon it. If it
is in line with the values and rules of the Shari'a above, it can become legal. If not, then it is
haram as it came from.

The values and rules that I have conveyed above are not based on mere subterfuge. There are
many evidences from the Qur'an and Sunnah that confirm the legality of the above
rules. Among them:

First: The story of Ammar bin Yasir who said kufr words because his soul was
threatened. When this was reported to the Messenger of Allah, he asked Ammar, "How is
your heart?" "Calm in faith", replied Ammar. He then said, "If they do that again, then repeat
what you did." This incident became the cause of the revelation of the word of Allah (which
means),

" Whoever disbelieves in Allah after he has believed (he gets the wrath of Allah), except the
one who is forced to disbelieve, though his heart remains calm in believing (he has no sin),
but whoever opens his chest for disbelief, Allah's wrath will fall on him and for him a severe
punishment. big ." (An Nahl:106)

Second: Allah's Word about criticizing the idols of the polytheists (which means),

" And do not curse the idols they worship besides Allah, for they will curse Allah by
transgressing without knowledge. Thus We have made every Ummah consider their work
good.  then to their Lord they will return, and He will tell them what they used to do .” (Al
An'aam: 108)

Ibn Kathir said,

"The Word of Allah forbids the Messenger of Allah ( sallallāhu 'alayhi wa sallam) and the
believers from reproaching the idols of the polytheists, even though there is benefit in them,
but it will cause greater harm than that, namely the recompense of the polytheists by
criticizing the idols of the people. "Those who believe, namely Allah, there is no god worthy
of worship except Him."

Third: Prophet Yusuf ' alaihissalam who asked for a position to the King of Egypt. Allah
says about Joseph,

" Yusuf said: "Make me treasurer of the state (Egypt); Verily, I am a person who is good at
guarding, and is knowledgeable .” (Joseph: 55)

Being part of the government of an infidel king of course contains evil, but when there are
benefits that are expected by doing so, the Prophet Yusuf also did so, namely so that he could
achieve justice in managing the produce of the earth during the seven years of famine.

Fourth: The Prophet advised his companions to emigrate to the land of Habasyah, because in
Mecca the intimidation of the Quraysh polytheists was getting worse. The land of Habasyah
is an infidel country, of course something that is bad to live in an infidel country, but when
living there is better than living in the city of Mecca, it is the choice of the Prophet sallallaahu
'alaihi wa sallam.
Fifth: Hudaibiyyah Agreement. When the Prophet and the Muslims were about to go to
Mecca to perform Umrah, they were stopped by the Quraysh. It was at this time that there
was an agreement between the Muslims and the polytheists. When the points of the
agreement were about to be written, the delegation of the Quraysh rejected the words Ar-
Rahman and Ar-Raheem, the two names of Allah. Likewise, rejecting the word "rasulullah"
after the name Muhammad. Not to mention the points of the agreement outwardly demean
the Muslims. So Umar had time to say, " Limaa nardhaa bid daniyyah? "Why are we willing
to humility?"

Why was all that done by the Prophet sallallaahu 'alaihi wa sallam, even though it appears
outwardly all of it is bad? Again, the consideration is benefit and madhorot. He wanted the
agreement to be realized, so that he and the Muslims had the freedom to preach without any
interference from the polytheists.

Sixth: when it became clear to him (sallallaahu 'alayhi wa sallam) the nature of some of the
hypocrites and their necessity to be killed according to the Shari'a law, he did not do so and
reasoned,
‫ال الناسُ ا ُل ابَه‬
" So that people do not say that Muhammad killed his companions ." (Narrated by Bukhari)

He did not kill him in order to bring greater benefit to Islam and Islamic scholars, also in
order to prevent the greater evil that could arise from the evil caused by not killing him.

That is because if people speak with such talk (Muhammad has killed his friend) and the
news spreads, while they do not know the reason, then that will be a matter that can keep the
polytheists from entering this religion. Because their ears have been filled with talk like this,
so they think that surviving murder by converting to Islam is not true. So they fled from this
religion and went far away.

I. PRELIMINARY

Talking about ushul fiqh cannot be separated from the discussion of the methods used for the
legal istinbath process . This is because ushul fiqh is always related to problems that require
correct and accurate resolution.

If the Qur'an has explicitly stated the legal position of an act or problem, then there is no need
for a legal study of the case. However, if the Qur'an does not explain explicitly, as well as the
Hadith as a second source also does not provide a real solution, then the case should be
immediately resolved.

Because the focus of the discussion on ushul fiqh is the general syara' arguments in terms of
their general accuracy [1] then to be able to study these arguments a mujtahid must master
various types of knowledge related to legal istinbath such as Arabic, nahwu, sharaf, I'lal,
balaghoh, mantiq , and so on.

In addition to equipping themselves with these sciences, it is also important for mujtahids to
understand the basic rules that need to be used as the basis or foundation in the process of
establishing the law, so that it is hoped that the results taken from the process can provide
mashlahah for all. Departing from these thoughts, in this paper will be explained a little about
the rules that can be used as the basis for legal istinbath .

II. FORMULATION OF THE PROBLEM

Based on the background that has been stated, the author tries to formulate the problems that
are the focus of this study as follows:

A. What is the meaning of qowaid syar'iyyah ?

B. What is the basis or purpose of the formation of syara' law ?

C. How is the distribution of qowaid syar'iyyah ?

III. DISCUSSION

A. Definition of Qowaid Syar'iyyah

Al qowa'id al syar'iyyah comes from Arabic, namely, qawaid and syar'iyyah . Qawaid is the
jama' of qa'idah which means the formulation of principles that become laws, definite rules,
benchmarks, arguments. [2] Terminologically there are several definitions, including:

According to Ath Thahanawi, the rules are general provisions that are suitable for all parts of
it partially, when they want to know the partial legal provisions. According to Abu Al Baqa'
Al Kafawi Al Hanafi mentions qa'idah as a general preposition that potentially includes all
legal provisions that are juz'i in its scope. Meanwhile At Taftazani said that qawa'id is a law
that is kulli which can be applied to all its juz from which the laws can be known. [3]

From the explanation above, it can be concluded that qawa'id is a general provision that can
be applied to all its parts.

Meanwhile, syar'iyyah is a form of the word shari'ah . Shari'ah itself means the road to the
flow of water or the road that must be passed. The Qur'an uses the word shari'ah to mean a
clear path to lead humans to safety and success in this world and the hereafter. But lately the
word shari'ah is intended to refer to the material of Allah's word related to human activities.
This distinguishes the term shari'ah with aqidah and morals. [4] In the dictionary it is also
stated that syar'iyyah is everything related to the rules of syara' .[5]

Based on the above definition, the writer can conclude that qawaid syar'iyyah are the rules
that are used as the basis for legal istinbath based on the purpose or wisdom of syara'.
Qawa'id syar'iyyah is part of the rules of ushul which is also known as qawa'id
ma'nawiyyah .

B. The Purpose of the Establishment of Syara'

The general purpose of the formation of syara' is to realize the benefit of human beings by
guaranteeing their needs. Every syara' law has no other purpose except for one of the three
things that can bring benefit to humans, namely dharuriyyah [6] , haajiyah [7] and
tahsiniyyah [8] .

Because the general purpose of the formation of syara' is to determine benefit, bring benefits
and eliminate harm , then if the primary, secondary and complementary needs have been met,
it means that their benefit has been realized. [9]

Based on the legal objectives ( maqasid al sharia ) [10] , legal istinbath can be developed to
solve problems that are not answered by the Qur'an and Hadith texts. Shari'a as explained in
Surah Al Anbiya verse 107 is a mercy for the universe.

and We have not sent you, but to be a mercy to the worlds . [11]

The benefit that is the goal of Islamic law is the essential benefit and is oriented to the
maintenance of five things, namely religion, life, property, reason, and lineage. Failure to
maintain these five things can be fatal and cause destruction, damage, and destruction in
human life. These five things occupy dharuriyat needs and rank the highest and most
important compared to the other two. [12] Complementary needs are not considered if they
can damage secondary needs, and complementary and secondary needs are not considered if
they can damage primary needs. [13]

C. Distribution of Qowaid Syar'iyyah

As it is known that the rules in ushul fiqh consist of two parts. The rules of ushul fiqh itself
are;

‫القواعد التى ل ا لى استنباط األحكام ال ّشرعية العملية لتها التفصيلية‬

The rules used to explore syara' laws which are 'amaliyah' from detailed arguments.

While part of the rules of ushul fiqh is qawa'id lughowiyyah which studies ushul fiqh from a
linguistic approach. This is very necessary considering the main source of Islamic law itself
is the Koran and Hadith which use Arabic.

While the second is qawaid ma'nawiyyah or qawaid syar'iyyah . [14] This qawaid syar'iyyah
is taken through a legal objective approach ( maqashid ash shari'ah ) where the sole purpose
of shari'a making law is for the benefit of His people, not for the distress of His servants.

Therefore, it can be seen that everything that is prescribed in the Qur'an and Hadith is never
an indication that orders an action, unless it contains benefits. Mukholafah understand his
Syari ' does not prohibit an act unless there is a danger and kemudharatan in the ban. [15]

Based on the objectives of the Shari'a law, a legal basis that rejects danger ( daf'u adh dharar )
and a syara' legal basis that eliminates difficulties ( nafy al haraj ) can be adopted . Some of
the rules relating to the principles of daf'u adh dharar and nafyu al haraj include [16] :

a. Al Haraj Marfu' ( ‫) الحرج‬

The point of this rule is that the Shari'a does not require the mukallaf to perform or abandon
the actions that put them in extreme hardship and hardship. This is based on two things,
namely creating balance in the life of the mukallaf and avoiding saturation in the
implementation of taklif.

Basically the mukallaf is required to carry out various practices. However, humans have
limitations, both internal and external. So that if he is required to carry out all obligations
excessively beyond reasonable limits, it will certainly make it difficult for him to fulfill other
obligations. Therefore, these obligations must be carried out fairly and not excessively.

In addition, overburdening obligations will make the mukallaf feel bored. This will result in
the neglect of other burdens. To avoid this, Allah made Islamic law easy and tolerant.

b. Al Masyaqqah Tajlib At Taysir ( ‫) ال ليب التيسير‬

Difficulty in attracting convenience, namely if in the implementation of a syara' stipulation of

mukallaf experiencing difficulties and narrowness that exceeds the limits of reasonable
ability, the difficulty will automatically give birth to mitigating provisions.

c. Adh Dharar Yuzal ( ‫) ال ليب التيسير‬

Everything that causes harm must be removed. This rule is related to the previous rule where
both are one unit and are complementary. This rule is based on the hadith of the Prophet
SAW that it is not permissible to make madharah for oneself or for others ( ‫) ال ال ار‬

d. Adh Dharurah Tubih Al Mahzhurah ‫) ) الضرورات المحظورات‬

Disadvantage allows things that are prohibited. Based on this rule, among other things, it is
permissible to eat carrion when forced because of hunger.

e. Al Hajah Tunazzil Manzilah Adh Dharurah ( ‫) الحاجات ل لة الضرورات احة المحظورات‬

Hajat takes its place in an emergency , both general and specific. The purpose of this rule is
that if it is permissible to do something that was originally prohibited on the grounds of
dharurah , then it is also permissible to do something that is prohibited on the grounds of
hajah .

f. Ma Ubih Li Adh Dharurah Tuqaddar Bi Qadariha ( ‫) ا للضرورة ا‬

Something that is allowed on the grounds of dharurah , its permissibility is limited to the size
of the dharurah . The purpose of Qa'idah this is all that is allowed on the grounds dharurah
and Hajjah not cross the limits of the purposes of refusing kemadharatan. It also indicates that
if udzur ( dharurah or Hajjah ) is lost, the automatic ability to do something that is forbidden
is also missing.

g. Adh Dharar La Yuzal Bi Adh Dharar (‫) الضرر ال ال الضرر‬

Evil cannot be eliminated by any other evil. A person who is facing an emergency must not
refuse or avoid the situation by causing harm to others.
h. Irtikab Akhaff Adh Dhararain

The complete rule is :

‫ا ارض ان ا ا ارتكاب ا‬

If the two mafsadat (which causes harm) are in conflict, then the one with the greater
mafsadat is guarded by doing the lighter mafsadat . This rule is an elaboration of adh dharar
la yuzal bi adh dharar , i.e. if one of the two madharas is greater than the other, then what can
be done is a lighter harm.

i. Dar'u Al Mafasid Awla 'An Jalb Al Mashalih ( ‫) المفاسد لى لب المصالح‬

Rejecting harm takes precedence over attracting benefit. Based on this rule, if there is a
conflict between mafsadah and benefit, then the priority is to reject the mafsadah . This is
because Shari'a's attention to prohibitions is more strict and greater than Shari'a's attention to
commands.

IV. CONCLUSION

Based on the brief description above, it can be concluded that:

1. qawaid syar'iyyah are the rules that are used as the basis for legal istinbath based on the
objectives or wisdom of syara'. Qawa'id syar'iyyah is part of the rules of ushul which is also
known as qawa'id ma'nawiyyah .

2. The general purpose of the formation of syara' is to realize the benefit of human beings
by guaranteeing their needs. Every law Personality 'has no other purpose except one of the
three things that can realize kemashlahatan for man, which dharuriyyah , haajiyah and
tahsiniyyah .

3. Based on the objectives of the Shari'a law, a legal basis that rejects danger ( daf'u adh
dharar ) and a syara' legal basis that eliminates difficulties ( nafy al haraj ) can be adopted .
Several rules related to the principles of daf'u adh dharar and nafyu al haraj are related to
each other as explained above.

V. CLOSING
That is the description that the author can convey in this paper. As an ordinary human being,
of course, this paper is still far from perfection. Therefore, criticism and suggestions from
readers are very much expected for the sake of perfection of the paper in the future.
Hopefully this paper useful for us all.