NECESSITY IN ISLAMIC LAW -o ý BY MANSOUR Z. AL-MUTAIRI THESIS SUBMITTED TO THE UNIVERSITY OF EDINBURGH FOR THE DEGREE OF DOCTOR OF PHILOSOPHY ( Ph. D ) JANUARY 1997 i ý"' ", , ý .ýt.-i. , ' :º IN THE NAME OF ALLAH, THE MOST MERCIFUL, THE MOST BENEFICENT TABLE OF CONTENTS. page Declaration. v Abstract. vi Acknowledgements. Note on Transliteration. ix List of Abbreviations. x-xv INTRODUCTION. 1-7 CHAPTER ONE : DEFINITION OF NECESSITY. 8-37 1. Necessity in the Arabic Language. 8 2.Necessity as a Juristic Technical Term. 9 A. Necessity as Defined by Classical Muslim Jurists. 10 B. The Criticism Of This Definition. 11 13 C. Necessity as Defined by ContemporaryJurists. 15 3. SomeTerms Associatedwith Necessity. A. Removing Hardship (raf' al-haraj ). 16 16 B. Need (bä ah ). C. Force Majeure ('a'ihah 17 . D. Compulsion. 18 E. The Five Fundamental Benefits (al-darüriXyät al-khams 18 4. Necessity in the Qur'än and the Traditions of the Prophet. 27 CHAPTER TWO : MAXIMS OF NECESSITY. 38-77 Introduction. 38 i 1. Hardship Begets Facility. 39 * Hardship 42 2. Injury is to be Repaired. 49 3. Necessity Permits Prohibited Things. 57 4. Necessity is Estimated by the Extent Thereof. 59 5. Necessity Does not Invalidate the Rights of Others. 61 6. The Lesser of Two Evils is Preferred. 64 7. Need, whether it was Public or Private, Should be Treated as a Caseof Necessity. 66 CHAPTER THREE : CAUSES OF NECESSITY. 78-166 1. Compulsion 78-95 A. Definition of Compulsion. 78 B. The Conditions for the Consideration of Compulsion. 81 D. Types of Compulsion. 81 2. Legitimate Defence 96-114 A. Definition of Legitimate Defence. 96 B. Conditions for Legitimate Defence. 98 C. The Area of Legitimate Defence. 102 D. The Effect of Legitimate Defence. 108 E. Proving the State of Legitimate Defence. 109 F. Exceeding the Limit of Defence. 109 3. Illness 115-136 A-Fatal Illness. 118 B. Medication by Unlawful Substances. 120 C. Organ Transplantation. 122 4. Change in Circumstances. 137-166 A. Introduction. 137 B. Definition of jawWi 138 C. The Effect of jawä ih. 140 D. al `Udhr ( excuse ) 145 i. General Excuse. 146 i.i. Private Excuse. 146 E. Modem Contracts. 150 CHAPTER FOUR : CONDITIONS OF NECESSITY 167-189 1. Acting According to Necessity Must be Compatible with the Objectives of the Sharf ah. 167 2. Necessity Must be Genuine. 171 * Interest in the Modern Monetary System. 174 3. Removing Necessity Should not Result in a Similar or Greater Injury. 179 4. What Becomes Permissible by Necessity Must be Limited to the Extent of Such Necessity. 182 CHAPTER FIVE: NECESSITY IN CONNECTION WITH OTHER ISLAMIC JURIDICAL TERMS. 190-254 1. The Link between Necessity and Public Interest ( ). 190-209 A. Introduction. 190 B. The Validity of alai-Ma ah al-Mursalah. 193 C. The Conditions for the Consideration ia_hal-Mursalah_. 195 of a1-Mas1a_. _ D. The Link Between Necessity and al-Ma 1ahahal-Mursalah. 198 2. Necessity and Blocking Means (Lsaddal-dharä'i') 210-222 A. Introduction. 210 B. Types of Means. 213 C. The Link Between necessity and Means ( dhara'i, ). 216 i. Prohibiting Lawful Acts. 216 ii. Permitting Unlawful Acts. 218 iii. Releasing One from his Obligations. 219 3. Necessity in Relation with Concessionary Law (rukh; ah 223-238 ). A. Introduction. 223 B. Concessionary Law ( rukh5gh ). 225 C. Types of Rukh§ah According to the Ham School. 227 i. Literal Concession. 227 ii. Figurative Concession. 230 D. Types of $ukhýah According to the Majority of Jurists. 231 E. The Link Between Concessionary Law and Necessity. 234 4.The Link BetweenNecessity and I. 239-254 CONCLUSION 255-259 BIBLIOGRAPHY 260-274 iv DECLARATION I hereby declare that this thesis has been composed by myself, the undersigned, and that it does not represent the work of any other person, and that every work which has been consulted is duly acknowledged. Mansour Z. al-Mutairi V ABSTRACT This study aims at exploring thewidely applied principle of necessity ( darnrah ) in Islamic law. Its main focus is to examine the legal definition and limitations of necessity. It has been divided into five chapters, an introduction and a conclusion. In the first chapter, special attention has been given to the definition of necessity in Islamic classical and modern jurisprudence. Since the maxims of necessity are an essential element of this topic, these have been explored in the secondchapter. The causes of the state of necessity are dealt with in the third chapter. In this regard, compulsion, legitimate defence, illness, change in circumstances have been discussed insofar as they related to necessity. To give an accurate idea of the limitation of this principle, the conditions of necessity are the main concern of the fourth chapter. In the fifth chapter, the discussion is concerned with the relation between necessity and other Islamic legal concepts particularly those concepts which are regarded as sources of law. The link between public interest ( asmlahah iursalah blocking the ( istihsdn , means sadd al-dharä'i') , and concession ( Inkhsah ), and necessityon the other hand was found to be strong. The conclusion, finally, summarizes the discussion previously made and presents the findings of this study. Ni ACKNOWLEDGMENT First of all, all the praise is due to Allah the Creator and the Sustainer of all mankind and all that exists. May the peace and blessing of Allah be upon his Messenger, Muhammad and all the Messengers before him who have guided mankind to the straight path. Secondly, My genuine, deep thanks and respect go to my supervisor Dr. I. K. A. Howard whose guidance and kindness have contributed enormously in bringing this study to the light and affected me personally in many ways. I will not and could not forget my parents whose support and patience have greatly touched my life in general. My thanks to them is unlimited but it is not sufficient. I ask Allah sincerely to give me the opportunity to reward them in their lives. I am indebted also to many people whose help and cooperation deserve to be mentioned here: * The staff of the Department of Islamic and Middle Eastern studies. * Dr. Michael V Macdonald. * Dr. John Burton. * Dr. Yaseen Dutton. My thanks goes also to Miss Crawford the former secretary of the Department. And to the present secretary Miss Lesley Scobie for their efforts and help. I would like also to thank the staff of the Department of Inter-Library loan for their constructive work and help. My thanks also extend to Mr. 'Abd al-Rahmän al-Luwayhq from the Islamic university of Imäm Muhammad b. Su'üd for his valuable assistance. My deep thank and appreciation go to my wife whose help, patience and support to me and to our children cannot be expressed in words. She alone take the credit of creating a happy and stable family life away from home. Last but not least, I would like to express my gratitude to King Khalid Academy in general and to the Department of Humanities in particular for giving me the opportunity and scholarship to accomplish my studies. A. Constants. BýH ý ü TH w i J C Y CS H r_ KH C Dii'( not shown initially ) Cf-i ý 4-- (h) except when mudäf; then (t) R J ZýB. Vowels. U S O, SH &1 Vý ý 0" I S v° a D vý ä ý-/ý- T lo LI , . J- Zý aw 6 t. I Qi L ay cs- Fý Qv KJ LJ Mr ý N v LIST OF ABBREVIATIONS The following abbreviations are used to refer to the works which were frequently consulted throughout this study. Full bibliographical data of these works and others which were cited will be provided in the bibliography. hkäm Ibn al-'Arabi, Ahkiim al-Our'än. ALQ Arab Law Quarterly. Ashbäh al-Siyüti, al-Ashbäh wa al- azä'ir fi äl-Furü' 'Awdah 'Abd 'Awdah '' al-Qädir , al- ash al-Jinä'i al-Islami Mugäranan bi l-Dänin al-Wadi. B id äyah Ibn Rushd, Bidävat al-Mujtahid wa Nihäyat al- Mugcasid. Diräsät `Abd al-Wahäb Abü" Sulaymän, Dir-Isät F, al- Figh al-Islämi. Durar 'Ali Hayder, Durar al-Hukkäm Shat Majallat a1-Ahkäm. Dawäbit al-H4, Dawäbit al-Maslahah f1 al- Shari `ah al-Islami,y, yah. D arfirah Zaydän, Iiälat al-I)arürah fi at- Shari'ah al-Islamiy, yah. x Falsafat Mahmmsäni, Falsafat al-Tashri' fi al-Islam. al-FarfL'id Ibn al-Lahäm, al-Oawä'id wa at - Farä'id al-'UsvliX, yah wa Mä Yta'1aq BihA min al-Abkäm al- Far-i35ib. Fatiwl Ibn Taymiyyah, Majmü' Fatäwä Shavkh a! - Is15m A! mad Ibn Taymiyyah. Fnrfi al-Q1Cdf1, al-FUt'üg. Ghamz al-Hamawi, Ghamz 'Uyfin zl- asä'' Shari Kitäb al-Ashbäh wa al- azä''r Häshiyat a1-Dusngi, äs ' at - usü i 'a1a al-Sharh a-1IC ýaiir Ibn Humayd, Raf` al-Uaoj ft a1- ara' Shari`ah al-Islämi,y, yah.. ]2awäbituhu wa Tatbig ätuh I'1äm Ibn Qayyim al-Jawziyyah ; 'läm al-Muwagi'in 'a n Rabb aL - ' ami . Ibn Kathir, Tafsir än Ibn Kathir al-Our' al- 'Azim xi Ibn Ra'ab Ibn Rajab al-Hanbali, al-Oawä'id ial-. h at- slazn-. Ibn al-Wakil Ibn al-Walöl, al-Ashbäh wa al- azä' r Ihk-aa al-Amidi, al-Ibkäm ft- Usül al- Um " Jassäs al Jassäs, Ahkä.m al-Our'än. Jämi' al-Qurtubi, al i' li Abkam al- ur'ä Kabir al-Dardir, al-Sharh al-Kabir. Kashf 'Abd al-'Aziz al-Bukhäri, ashf a1-A.st-5r alä Usv1 al-B azdawi. halläf Khalläf, ' Ilm Usill al-Figh.