Monday, October 31, 2016

Understanding the concept of Dharoorah (“necessity”) in Fiqh

Understanding the concept of Dharoorah (“necessity”) in Fiqh


As Muslims, we know that our actions should be guided by the dictates that Allah (سبحان و تعالى) has placed for us, but among the many monkeys on our backs that we find it “difficult” to shake off in modern times are contemporary social strictures, pressures and conventions that can often make it challenging to practice even the most basic obligations. Obligations and prohibitions are often subverted – whether intentionally or otherwise – under the pretext of “necessity” and “difficulty”, meaning that this notion needs a close examination and a clear understanding. This article looks at the issue of Dharoorah – the juridical concept of “necessity” that determines when something is so dire that existing ahkam may be relaxed or exceptions to them applied. What is dhuroorah , what are its limits and where does it rightly apply?

In situations of genuine need which the Shariah itself recognised, it gave to mukallifeen (legally responsible persons) dispensations and exceptions to existing ahkam (rules). Scholars of Usool ul-Fiqh thus developed the concept of Dharoorahor necessity, to lay down principles for the mukallaf to apply (with the guidance of the learned) to determine whether a particular situation is of “dire need”, thus becoming an exception to existing rules. For instance: when is a physical ailment sufficiently immobilising such that one can sit in prayer? When is it allowed to eat something otherwise haram for essential nourishment? What genuinely is a “need” which “allows” otherwise invalid transactions to take place (if there exists one at all)?
The development of the concept of dharoorah helps us arrive at sound, evidence-based conclusions in strange and difficult circumstances.
Importantly, however, this principle has limitations and conditions placed upon it, and it is crucial to know how it works and when it applies, so that we fulfil our duties and do not inadvertently use “personal circumstances” to create exceptions where they do not actually apply. The potential ramifications of this are, without exaggeration, drastic. One may – without the right knowledge of this concept – feel they are at liberty to be exempted from certain ahkam, only that in reality their circumstances do not reach the level necessary to activate those exceptions. In this case a person might be committing grave sins while feeling they are acting on valid exceptions to Islamic injunctions.
It is unfortunately a common occurrence today that dharoorah has been stretched to where it doesn’t actually apply.
The use of Surah Baqarah verse 173
The most common evidence that is relied upon and unduly extrapolated from is the well-known situation of the threat of death from hunger, where it becomes permitted to eat pork and other haram food in order to remain alive. Some people have used this instance to generalise to a whole range of new cases, finding (invalid) grounds for exemption from ahkam where such exemptions do not actually exist.
It is true that Allah said in the well-known verse:
He has forbidden you Al-Maytah (meat of a dead animal), blood, flesh of swine, and any animal which is slaughtered as a sacrifice for other than Allah. But if one is forced by necessity without willful disobedience and not transgressing, then there is no sin on him [TMQ 2:173].
From this it has been deduced that the person who is in dire need can in fact eat from whatever he finds, even from prohibited food, to the extent that it is enough to keep him alive.
What must be understood, however, is that these exceptional rules apply to specific situations with specific evidences, or, in some cases, they apply in a principled way according to rules derived by scholars carefully over time.
For this reason, we cannot generalise and extrapolate widely, thus incorrectly concluding that we are allowed to find exceptions derived from such evidences as the above. While this point may seem obvious to some, it is a point to note that the assertion of exemptions based on evidences such as the above has become common among laity today and, in some cases, even among modern day scholars who justify certain matters which even have a near-consensus in Islamic scholarship throughout history.
Verses that refer to Islam’s “ease” 
Thus some have used the following verses, combined with the above, to suggest that given Islam is there to facilitate ease, then where there is a “need” Islam’s rules can be relaxed as necessary:
And He has not laid upon you in religion any hardship (22:78).
Allah does not want to place you in difficulty, but He wants to purify you, and to complete His Favour to you that you may be thankful (5:6).
We must be extremely careful when we speak about the principle of “necessity”. Taking a look at what our classical scholarship said on this matter highlights the importance of this caution.
Classical scholars’ explanation of “necessity” in Baqarah:173 and generally
A look at scholarly commentary on the Qur’anic verse quoted above itself clarifies what sort of “necessity” is being spoken of there by Allah and thus what the requisite “necessity” is that enlivens exceptions from the default ruling.
The great Hanafi scholar Imam Imam Abu Bakr al-Jassas al-Razi said in his Ahkam al Quran (vol 1/159):
… the meaning of necessity purports the fear for life and limbwhen someone avoids foods (that are in essence otherwise forbidden) …
The famous Hanbali jurist Imam Ibn Qudamah al Maqdasi wrote in his Al Mughni that (9/331):
If it has become established, then, that the necessity that is expedient is the type that leads to starvation if the food is left…
He continues to say:
…The reason for the allowance of is the need to preserve the self from destruction because this Maslaha is more beneficial than the benefit of avoiding the impure…
The Shafi’i school’s Imam Al Ghazali said in his Wasit (7/168):
As for necessity we imply the state that probably will lead to the person’s destruction; if, for example he does not eat and similarly if he fears that an illness would lead to death…
Imam Ibn Juzai al Maliki said in Al Quanin al Fiqhiya (p116):
… As for “necessity”, it is the fear of death and it is not conditional that someone is patient to such an extent that he witnesses his own death…
Clearly then, and with reference to all four schools of thought, when we speak of “necessity”, we are talking about an acute scenario that is particular in nature, not of generic “need”, “convenience” and so forth. This is not just the case for the understanding of the above verse but is a more broad principle.
In other words, this understanding of necessity is general and not specific to the above Qur’anic verse. In forming their principles on the concept of dharoorah, the understanding of necessity derived from the above applies more generally.
The issue of necessity thus has certain constraints according to many of the ‘ulema:
  • That there is no other means through which to remove the overbearing situation.
  • That this does not affect the rights of others. In other words, we try to look for an exit that does not affect others. For instance, a number of ‘Ulema forbade Muslims eating dead human flesh in matters of starvation because this affects the rights of others i.e. those of the dead. Another common example some ‘ulema commented on is the sinking ship scenario: what if we are going to sink because of the excessive weight of the passengers; do we throw a few overboard to their doom to save the majority? The majority refuse this “utilitarian” solution (as it were) in considerations of dharoora.
    Another example here is the Muslim prisoner-shield that is put up in defence by a non-Muslim army. This example is typically allowed for as a dharoora because there are textual indications (from the sunnah) that have allowed this sort of inevitable collateral damage if it absolutely cannot be avoided. Some scholars understand this point as a Dharoorah Kulliya i.e. an all encompassing dharoorah (it applies to the Muslims as a whole rather than some at the expense of others).
As the above scholarly examples show, dharoora in the fiqhi sense makes some things that are forbidden allowed in exceptional, serious situations. The key thing to take away is that this is not a norm, but applies for very particular, severe situations. It cannot be made a general law and certainly cannot lead to the establishment of new “default rulings” in our day and age for entire populations based on a new conception of what is “difficult” or “hard”.
So one cannot claim, for instance, that they have to take an interest-based mortgage to buy a house on the pretext of “necessity” as, in almost all cases, the level of “difficulty” experienced certainly does not reach the level spoken about by the scholars in the context of discussions on dharoorah, as explicated in the above quotes.
In the present example, people have the option of renting or staying with relatives. Similarly, one can’t claim that they have to pay a bribe in order to achieve their interests if they can achieve them in a legitimate, way even if it is more “difficult”.
Someone working in a job that involves something haram such as in a restaurant where they would have to serve alcohol or as a cashier in a bank where they would have to receive and give riba (usury) does not have a case for this to be allowed on the grounds of dharoorah.
The countless ayat and ahadith ordering us to undertake our actions according to the commands and prohibitions of Allah (swt) cannot be washed away based upon some difficulty or hardship that is far below the standard spoken about by the nusus (clear texts) and explained by scholars. Otherwise there would be little point in Allah saying that these ahkam and our adherence to them are a test. If every hukm was explained away on the basis of a new, low threshold of hardship, the test of iman that is adherence to the shariah would mean little.
“And certainly, We shall test you with something of fear, hunger, loss of wealth, lives and fruits, but give glad tidings to As-Sâbirin (the patient ones)” [TMQ al-Baqarah:155-157].
We should heed the warning of the Messenger of Allah (ﷺ) when he said:
Be prompt in doing good deeds (before you are overtaken) by turbulence which would be like a part of the dark night. During (that stormy period) a man would be a Muslim in the morning and an unbeliever in the evening or he would be a believer in the evening and an unbeliever in the morning, and would sell his Deen for worldly goods [Sahih Muslim: Kitab ul-Iman, 213].
Allah (swt) says:
“It is not for a believer, man or woman, when Allâh and His Messenger have decreed a matter that they should have any option in their decision. And whoever disobeys Allâh and His Messenger, he has indeed strayed in a plain error” [TMQ al-Ahzaab:36].
We ask Allah Most High to grant us taqwah, such that we do not exploit the ahkam of Allah by lowering the bars in cases of exceptions and deducing that things are of “necessity” when they in fact are not.

No comments: