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8th Fiqhi Seminar

Date: Dec.30, 1994 - Jan.2, 1995 Venue: Bharuch

The extent of Islamic shariah is not restricted to a certain age, country or people but it remains obligatory on all the Muslims to observe it till the Doomsday. The Islamic Shariah is binding and obligatory as on Muslims who live in Countries governed by non-Muslims as it is on those who are governed by Muslims.

The extent of government’s governance today has not remained restricted to only few areas as has assumed as its right to make laws, plan and oversee all aspects of human life. Millions of Muslims living in the system and atmosphere raised on western non-Islamic style (especially those who live in non-Muslim countries) are in a cute suffocation and constraint as the observance of Islamic Shariah have been rendered more difficult for them due to governmental legislation. If they give up observance of Islamic ahkam their heart censures them and the fear of accounting and hence torments in the Here (after) keeps on organising them. If, on the other hand, they strictly abide by those Islamic ahkam they are put to serve constriction and restriction. Contemporary laws restrict and compel them to withdraw from many areas of life.

Under such circumstances it is badly needed to indentify those basic guidlines in the light of the principles of “Rafa-e-Harj” (elemination of constriction), “Daf-e-Zarar” (removal of harm), “Zaroorat” (Need) and Izterar” (compulsion) on which grand ulema and people of Ifta may make proper decisions on problems of all-prevading tribulation and need in the present age so that the Ummah can be releived of acute restriction and countruction where there exist any possibility and permanently in the Shariah Muslims are provided with ease and amemity, within the precepts of the Shariah and the serios danger of persist year posed by unrestricted use of the principle of Hayat and Zaroorah are mnytslised.

First Resolution:  

  1. Basically there are five Masalah (exigencies0 whose achievement is the object of the Islamic laws : protection of (a) Religion (b) Life (including chastity and honour) (c) Intellect, (d) Wealth and (e) Race. The thing which is so imperative that its want causes strong presumption, rather surity, of the loss of these expediencies is called “necessity”. Necessity is a permanent terminology for the jurists and it includes “want” as well as. However, comparatively to “want” to term “necessity” contains vast and general connotations.
  2. Want is a state in which man indulges to achieve the above noted five expediencies and in doing so falls prey to such toil and harm from which Shariah aims to protect. However, the jurists sometimes interpret “want” as necessity and vice- versa.
  3. Want and necessity both are basically related to toil and labour. To a certain degree toil is obligatory in all Shariah precepts and it can not be used in any change of the precepts. Sometimes the toil becomes so rigorous that if no leniency is made it surely causes grave harm. This stage is called necessity. Sometimes the toil is of comparatively less severe but in comparison to the toil made obligatory by Shariah for the human beings it is of extra ordinary nature. This state is “want”. Hence the basic difference between “want” and “necessity”, is only the fluctuation of labour.
  4. The jurists have differenciated in the provisions of Want and Necessity as well which, in short, is that under “Necessity” there can be room for exemption from such definite and categorical orders which are irrevocably prohibited. But if want is not of prohibitive nature it can have the room of exemption only in such orders which are not required to be prohibited by themselves but for the remedy and prohibition of other forbidden things.
  5. In case the want is of general nature and people are in general exposed to it, such want falls under the category of necessity and causes exception and singularity in the categorical orders.
  6. Toil is the foundation of want and necessity. Since toil is a relative thing there can be differences in the determination of want and necessity in view of the place, area, prevalent situation, the people’s capacity of endurence and also taking account of the countries where Muslims are in minority.Therefore, while determining want and necessity the countries like India where the Muslims are not in a position of playing effective role in legislation, this angle should also be taken into account.
  7. Determination about something whether it has the status of want of necessity under prevailing circumstances requires deep insight, careful screening and detailed contemplation. Therefore it is the duty of jurists and theologians in every age to determine the category of want and necessity which can be efficacious on the provisions, keeping in view the condition of that age. It is also very necessary that such delicate and important decisions should not be taken by individual efforts but by a body of authentic and prominent jurists and theologians so that the door of libertinism may not be opened in the name of the prevention of harm to the Ummah.
  8. If some special condition of a forbidden thing has been exempted from prohibition either explecitly or through guidence, in that case it no longer remains prohibit and it is necessary to take advantage of this exemption. Apart from this where exemption or facility is proved through the comtemplation/collective deliberation of the jurists or by some categorical order it is only for the removal of sin.
  9. The facility provided on account of want or necessity is exceptional in nature as per principle.

Second Resolution:

The rule of permision and indulgence on the ground of necessity will be applicable to nearly all the chapters of jurisprudence with the exception of “Haram-ban-ain-e-hi” like the rights of persons, murder of “Nafs” and “Zina” (fornication) etc. and the limits of its influence will be different according to the details noted below.

  1. If the rules belong to the category of the commanded ones and their non-compliance afflicts only the right of the “Shari” like uttering profame words or blasphemy, in such a case although these are themselves unlawful but will be allowed for him in the state of helplessness and constrain i.e. inspite of its illegality it will not be considered a sin
  2. If the rules belong to the category of the forbidden things and their violation affects only the rights of the individual like consomption pork, dead/carrian, wine etc. in an involuntary state, such things become permissible only in case of compulsion and coersion, hence these afflict no sin.
  3. If the rules are in the category of forbidden things but their disolvedience afflicts the rights to other people e.g. culpable homicide, rape, adultery, destruction of the property of a Muslim etc, it will be deal with in two ways.
    1. If it is possible to compensate of the right of people, e.g. the destroyed property of a Muslim can be compensated by payment or support, it will be permitted in the case of duress.
    2. But if it is not possible to compensate the destroyed right of the people as can be in the case of murder or rape, it will not be permitted even if it is committed under duress, and it will be illegal to act upon it.

Third Resolution:  

Sometimes “Want” also plays an effective role like “necessity” in the permission of the prohilited and sometimes under certain conditions “necessity” is made replacement to “Want”. But there are certain conditions and limitations which should be kept in mind positively.

  1. Prevention of harm should be the motive in allowing the prohilition for the sake of “Want, and not the acquisition of any benefit. No. prohibited thing can be permitted for the sake of benefit.
  2. When the motive is to avoid the unaccustomed labour on account of “Want”, Such labour can not be counted as reliable want which is generally asociated with human actions and Shariah rules.
  3. When there is no other legal alternate to achieve the end or if there is such a way it is accompanied with hard labour.
  4. Any order granted on account of “Want”, will be consonant to degree of “want” and no extention will be permitted in it.
  5. No greater harm should emerge to avoid a harm.
  6. The “Want” should be genuine and not a fancied one.

Fourth Resolution:  

The following conditions should be positively found regarding genuine “Necessity” in order to permit the prohibited things.

  1. The necessity should be present and not presumed or surmised to occur in future.
  2. There should be no other legal alternative.
  3. Danger of death or loss should be definite or it should be very strongly presumed one.
  4. There should be surity that usage or commission of the prohibited will ensure revocation of any grave harm and in case of non-usage the grave harm will positively occur.
  5. The prohibited should be used only in accordance to need
  6. Its commitment will not cause any other mischief either greater than it or equal to it.

Fifth Resolution:  

  1. There are several reasons in the back ground of the cases wherein permission is granted by the Shariah due to “Want and “Necessity”. The theologians and jurists call these reasons as “reasons for exemption” and “reasons for remission”. According to prominent saying these reasons are seven in number : Journey, ailment, abhorrence (duress), forgetfulness, ignorence, distress and general harm, deficiency.
  2. Very often, want, necessity and avoidence of harm is involved in the orders based on “common and general usage, although, from juristic point the field of common usage and the orders derived form it are somewhat more vast.

Sixth Resolution:    

  1. Participants of the Seminar unanimously agree that in case of general harm and distress in some matter, it is sometimes given the status of necessity and compulsion and prohibited and illegal things are permitted in case of extra-ordinary harm and distress to the society.
  2. If general necessity, general harm and distress occur in matters whose prohibition is established by categorical Shariah orders, it is a very delicate matter of great responsibility to exempt them from prohibition in the case of necessity. All the collective and social necessities are not of the same degree and their eange and inevitablity is also different from one another. Therefore it is imperative to study each of them deeply before taking juristic decision regarding collective necessities.
  3. When a collective necessity assumes so much importance that it may become difficult for the people to avoid it and there may be no legal and feasible alternative of it, or there may be no way out due to the local legal coersion in, such cases justification can be found for the remission in that matter inspite of its categogical prohibition but only till that colective necessity lasts.
  4. Very deep and detailed exploration of the collective necessity is very necessary before taking a decision of this serious nature and the help of legal and social experts should be requisitioned according to the need in this regard. After consulting the experts of the field in which the collective necessity arises, and having obtained necessary details of the issue, the god fearing prudent theologions and jurists can conclude which collective necessity has reached the stage where the Millat will get grave harm either immediately or in near futre if this necessity is over looked, hence decision of its justification should be adopted.
  5. The decision about specification or exemption in the categorical orders regarding the matters on the ground of collective necessity should not be taken by the theologians and jurists through their individual efforts, taken by a large number of theologians and jurists through their individual efforts. Instead of it the decision should be taken by a large number of theologcions and jurists after collective deliberation in the light of juristic principles keeping in view the Shariah orders and the reasons behind them. Only collective decision in such delicate matters can be a careful and satisfactory one.

    Note: Mufti Shabbir Ahmad Sahib of Moradabad dissents in the remission on the ground of public necessity in the categorically prohibited matters.

 

 

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Islamic Fiqh Academy (India) (IFA) was established in 1988 at New Delhi under the guidance and supervision of the great known Islamic Scholars.

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