The Jurisprudential Maxim of “Preventing Harm Takes Precedence over Securing Benefits” and Its Impact on the Rulings of Marriage and Divorce: Applications in the Libyan Judiciary as a Case Study

Abstract

This study examines one of the fundamental maxims of Islamic jurisprudence that extends to all branches of Islamic law, namely: “Preventing harm takes precedence over securing benefits.” It investigates the applications of this maxim in the rulings governing marriage and divorce, with particular emphasis on its implementation in the Libyan judicial system.

The research addresses several key questions: What are the principles governing the practical application of this maxim? Should the evaluation of harms and benefits be based on certainty, or is a preponderance of probability sufficient? What are the practical applications of this maxim in the legal rulings related to marriage and divorce?

To answer these questions, the study adopts an inductive-analytical methodology. It examines the textual evidence and juristic principles underlying the maxim as established by classical Islamic jurists and analyzes its applications in Libyan legislation and judicial practice concerning marriage and divorce. These applications are critically examined to present practical models illustrating the implementation of the maxim.

The study concludes that the maxim “Preventing harm takes precedence over securing benefits” has been recognized by both classical and contemporary scholars as a fundamental principle of Islamic jurisprudence because it provides an effective framework for resolving conflicts between competing benefits and harms. It further concludes that the application of this maxim is governed by specific conditions that must be understood by the qualified jurist when balancing conflicting interests and determining whether preventing harm should take precedence over attaining benefits. Moreover, the study demonstrates that this maxim has extensive applications in family law, particularly in matters relating to marriage and divorce, as clearly reflected in the rulings of the Libyan judiciary.