The Fiqh of Neighborly Harm

 

Question: Can you please explain this hadith from below? I don't quite understand what it is saying.

307. Abu Hurayra reported the Messenger of Allah, may Allah bless him and grant him peace, said, "No neighbour should prevent his neighbour from inserting a piece of wood in his wall." Then Abu Hurayra said, "Why do I see that you are averse to this? By Allah, I will hurl it at you between your
shoulders!" [Agreed upon]

Allah Almighty says, "Worship Allah and do not associate anything with Him. Be good to your parents and relatives and to orphans and the very poor, and to neighbours who are related to you and neighbours who are not related to you, and to companions and travellers and your slaves." (4:36)

Abu Hurayra (Allah be pleased with him) reported that the Messenger of Allah (Allah bless him and give him peace), said, "Anyone who believes in Allah and the Last Day should not harm his neighbor."  [Bukhari & Muslim]

Walaikumassalam,

The great commentator of Imam Nawawi's Riyad al-Salihin, Imam Ibn `Allan al-Bakri explains the words of the Messenger of Allah (blessings and peace be upon him, his family, and companions), "No neighbour should prevent his neighbour from inserting a piece of wood in his wall," as meaning,

"One should not prevent their neighbor from doing so in the neighbor's own property, even if one is harmed thereby, such as if it creates a shade over one's property, for example. This is because an owner has the right to do what he wants within his own property..."

As for Abu Hurayra's saying, 'By Allah, I will hurl it at you between your shoulders!,' Ibn `Allan explains that it refers to the sunna. Namely, he will continue to promote the sunna even if people turn away from it.

Then he quoted Imam Nawawi's Sharh Sahih Muslim,

"The scholars differed regarding the meaning of this hadith, and as to whether it indicated recommendation [f: of such actions, which entail bearing some harm from one's neighbor]... or obligation. There are two positions of Shafi`i and the followers of Malik, and the soundest position in both schools is recommendation. This is what Abu Hanifas and the Kufis said...

They explained that the outward purport of the hadith shows that they [f: those Abu Hurayra addressed] were agreed in understanding recommendation from the hadith, not obligation. Otherwise, how would they turn away from it?" [Ibn `Allan, Dalil al-Falihin li Turuq Riyad al-Salihin, 3.138-139 #308, Dar al-Ma`rifa, 1420/2000]

This is subject to the legal principle that,

"Undue harm is lifted." [Majalla, item 20]

Based on numerous primary texts and principles, the Hanafi jurists derived a very detailed fiqh of neighborly relations. A systematic treatment of this may be found in the Ottoman Hanafi commercial law code, Majallat al-Ahkam al-`Adliyya. It says:

"[Book of Joint Ownership]

SECTION II. RELATIONS OF ONE NEIGHBOUR TO ANOTHER.

1198. Any person may raise the wall of his property owned in absolute ownership to any extent he wishes, and may do anything he desires, and, providing that he does not cause his neighbour any great injury thereby the latter cannot prevent him from doing so.

1199. Great injury consists of anything which causes damage to a building, that is to say, which weakens it and causes it to collapse or makes it impossible for it to be put to the use for which it was originally intended, as in the case of a dwelling house.

1200. Great injury, caused in any way whatsoever, must be removed.

Examples:-

(1). A forge or a mill is erected adjacent to a house. The house is weakened by the hammering from the forge, or the turning of the mill wheel; or it becomes impossible for the owner of such house to dwell therein by reason of the great quantity of smoke given off by a furnace or a linseed oil factory, erected in close proximity thereto. These acts amount to great injury, which must be removed.

(2). A constructs a water channel on a piece of land adjoining B's house. Water is brought along it to a mill and the walls of B's house are weakened: or A makes a rubbish heap at the foot of the neighbour's wall and throws sweepings there and the walls becomes rotten. The owner of the house may have the injury removed.

(3). A construct a threshing floor near to B's house and the dust coming therefrom makes it impossible for B to dwell in his house. B may have the injury removed.

(4). A erects a high building near a threshing floor belonging to B and thereby cuts off the flow of air to the threshing floor. This act amounts to great injury and may be stopped.

(5). A opens a cook shop in the cloth merchants' market. The smoke therefrom is deposited on his neighbours goods and causes great injury thereto. The injury may be stopped.

(6). The sewer in A's house is broken and sewage flows into his neighbour's house. This amounts to great injury, and upon the neighbour bringing an action, A must repair the sewer and put it in order.

1201. Any interference with benefits which are not fundamental necessities, such as cutting off the air or the view of a house, or preventing the entrance of sunlight, does not amount to great injury. If light is entirely cut off, however, this amounts to great injury.

Consequently, if a person erects a building and cuts off the light from the window of a room belonging to his neighbour, the room being darkened to such an extent that it is impossible to read anything written therein, the act amounts to great injury and may be stopped; and it may not be argued that light can come in through the door, since the door must be kept closed on account of the cold and for other reasons. If the room has two windows, however, and a building is erected and the light of one of them is cut off as mentioned above, such act does not amount to great injury.

1202. The fact that places which are frequented by women, such as a kitchen, the head of a well, and the courtyard of a house are overlooked, is considered to amount to great injury. Consequently, if a person constructs a new window in his house whereby he overlooks quarters frequented by the women of an adjoining neighbour, or of the owner of a house on the other side of the street, or if he overlooks them from a window in a nearby built house, an order shall be given for the removal of such injury. Such person may also be obliged to remove such injury by building a wall or constructing a partition in such a way that the women cannot be forced to close up the window. If quarters occupied by women can be seen through the interstices of a wall made of brushwood, the owner of the wall may be ordered to close such interstices. He may not, however, be obliged to tear the brushwood down and build a wall. (See Article 22)>

1203. If a window is constructed in a place which is of the same height as a man, a neighbour of the person constructing such window may not have it removed by alleging that it is probable that he will overlook the women's quarter of his neighbour by placing a ladder there. (See Article 74).

1204. A garden is not considered to be women's quarters. Consequently, if a person is unable to see the women's quarters of his neighbour,s house, but is able to see his garden, and consequently the women, but merely on the occasions when they go out into the garden, his neighbour may not demand that his view into the garden shall be stopped.

1205. If a person climbs up the fruit trees in his garden, and thereby overlooks the women's quarters of his neighbour, such person must give information that he intends to climb such trees, in order that the women may cover themselves. Should he fail to give such information, the Court may forthwith prohibit him from climbing such trees.

1206. If upon the partition of a country house jointly owned by two persons, the share falling to one overlooks the women's quarters of the other, the joint owners shall be ordered to construct a joint partition.

1207. If any person deals with property owned in absolute ownership in some manner authorised by law, and some other person constructs a building by the side thereof whereby he suffers injury, he himself alone must remove such injury.

Examples:-

(1). The women's quarters in a house newly constructed ore overlooked by the windows of an old house. The owner of the newly constructed house must himself remove the injury. He may not call upon the owner of they old house to do so.

(2). A person constructs a house on apiece of land adjoining a blacksmith's forge, and alleges that the hammering in the forge has caused great injury to his house. He cannot stop the forge from working.

(3). A person builds a house in a place where a threshing floor has been established for some time past and alleges that the dust is being deposited in his house. He cannot call upon the owner of the threshing floor to stop work.

1208. If a person who owns an old house with windows looking on to a piece of vacant land belonging to his neighbour has such house destroyed by fire, and the neighbour builds a house on the land in Question, and thereafter the owner of the old house has it rebuilt in its former state and from the windows thereof overlooks the women's quarters of the new house, the injury must be removed by the owner of the new house himself. He cannot oblige the owner of the old house to remove the injury.

1209. If a person constructs new windows in his house and is unable to overlook the women's quarters of his neighbour by reason of the latter having constructed a high room between, and the room is later pulled down by the neighbour with the result that the women's quarters of the latter can be seen, the neighbour cannot call upon such person to stop the view from the windows, or to close them up, but must remove the injury himself.

1210. One of the joint owners of a wall may not raise such wall without the permission of the other, nor may he erect a kiosk thereon or any similar thing, whether causing injury to the or not. But if one of them wishes to place beams on the ground in order to build a room, that is to say, if he wishes to place them upon the edges of the beams on the wall, he may not be prevented from doing so. The other joint owner, however, has the right of placing the same number of beams. He may not, however, put more than half the total number of beams which can be supported and may not exceed that number. If both of them originally had an equal number of beams upon such wall, and one of them increases his number of beams, the other may prevent him from so doing.

1211. One of the joint owners of a wall may not have the position of the beams on such wall changed to the right or left or up or down. If the beams, however, are placed in an elevated part of the wall, he may put them on a lower part thereof.

1212. If any person constructs a cesspit or a sewer near a well of water belonging to some other person, and contaminates the water thereof, he may be made to remove the injury. If it is impossible to remove the injury, he may be made to close up the cesspit or sewer. Again, if any person constructs a sewer near to a water channel, and the dirty water from such sewer flows into the channel and causes great injury thereto, and no other way can be found to remove such injury than by closing it, the sewer shall be closed.

1213. If any person who owns a house on either side of a street wishes to construct a bridge from the one to the other, he shall be prevented from doing so. If he does so, and the bridge causes no injury to the passers by, such bridge shall not be pulled down. There is, however, no right to permanency in the case of bridges and resting places constructed over the public highway. Consequently, if after a bridge constructed over the public highway as mentioned above has been pulled down, and the owner wishes to construct another such bridge, he may again be prevented from so doing.

1214. anything which causes great injury to passers by on the public highway may be removed, such as low projecting balconies and resting places, even though they have been there for a long period of time. (See Article 7).

1215. Any person who wishes to repair his house may make quickly on one side of the road for use on his building, provided that he does not thereby cause any injury to the passers by.

1216. When necessary, the property of any person held in absolute ownership may be taken for its value by order of the authorities and made part of the road. He may not be deprived of ownership thereof, however, until he has been paid the price. ( See articles 251 and 262).

1217. Provided no injury is done to passers by, any person may obtain any surplus land on the highway by paying its estimated price to the Government, and attach such land to his house.

1218. Any person whatsoever may construct a door giving on to the public highway.

1219. No person who is not the owner of a right of way in a private road may construct a door looking thereon.

1220. A private road is like the jointly owned property held in absolute ownership of persons having a right of way. Consequently, none of the owners of a private road may make any fresh construction therein without the permission of the other, whether such construction is prejudicial or not.

1221. One of the owners of a private road may not allow water to flow from a house which he has newly built, on to such road, without the permission of the other owners.

1222. If any person closes up a door giving on to a private road, he does not thereby lose his right of way thereover. Consequently, if he sells his house at some later date, the purchaser may again construct the door.

1223. Persons passing along the public highway have the right, if there is a great crowd of people therein, of entering a private road. Consequently, the owner of a private road may not sell it by agreement among themselves, nor may they divide it among themselves, nor may they close up the entrance thereto."

And Allah alone gives success.

Faraz Rabbani

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