In the Name of Allah, the Most Gracious, the Most Merciful
(Series of Answers by the Eminent Scholar Ata Bin Khalil Abu Al-Rashtah, Ameer of Hizb ut Tahrir,
To the Questions of his Facebook Page Visitors "Fiqhi")
Answer to Question
To: Abu Al-Qasim Nassar
Question:
My beloved Sheikh, peace be upon you and the mercy of Allah and His blessings,
I would like to ask you about the Sharia maxim that states "necessities permit prohibited acts" (ad-daruratu tubihul mahzhurat). What is the Sharia intent of the word "necessities" (darurat)? I will mention two cases to clarify my point:
First: The fatwa by Sheikh Yusuf Al-Qaradawi regarding the permissibility of removing the khimar (headscarf) in foreign schools for the purpose of education, considering that a necessity.
Second: Women giving birth attended by male doctors.
If we say that necessities only mean the occurrence of death and destruction, then why do male doctors examine pregnant women and perform deliveries in some cases, which is considered a requirement of necessity when no female doctor is available, for example?
We find that if we define necessity as death, it is not realized in either case—in education or in childbirth?
May Allah bless you and reward you with Paradise.
Answer:
Wa Alaikum Assalam Wa Rahmatullahi Wa Barakatuh:
Some scholars have adopted the maxim "necessities permit prohibited acts" and those who advocate for this maxim have used evidences such as the saying of Allah (swt) in verse 173 of Surah Al-Baqarah:
إِنَّمَا حَرَّمَ عَلَيْكُمُ الْمَيْتَةَ وَالدَّمَ وَلَحْمَ الْخِنْزِيرِ وَمَا أُهِلَّ بِهِ لِغَيْرِ اللَّهِ فَمَنِ اضْطُرَّ غَيْرَ بَاغٍ وَلَا عَادٍ فَلَا إِثْمَ عَلَيْهِ إِنَّ اللَّهَ غَفُورٌ رَحِيمٌ
"He has only forbidden you dead meat, and blood, and the flesh of swine, and that on which any other name hath been invoked besides that of Allah. But if one is forced by necessity, without wilful disobedience, nor transgressing due limits, then is he guiltless. For Allah is Oft-forgiving Most Merciful." (Surah Al-Baqarah [2]: 173)
And the saying of Allah (swt) in verse 3 of Surah Al-Ma'idah:
فَمَنِ اضْطُرَّ فِي مَخْمَصَةٍ غَيْرَ مُتَجَانِفٍ لِإِثْمٍ فَإِنَّ اللَّهَ غَفُورٌ رَحِيمٌ
"But if any is forced by hunger, with no inclination to transgression, Allah is indeed Oft-forgiving, Most Merciful." (Surah Al-Ma'idah [5]: 3)
And the saying of Allah (swt) in verse 115 of Surah An-Nahl:
إِنَّمَا حَرَّمَ عَلَيْكُمُ الْمَيْتَةَ وَالدَّمَ وَلَحْمَ الْخِنْزِيرِ وَمَا أُهِلَّ لِغَيْرِ اللَّهِ بِهِ فَمَنِ اضْطُرَّ غَيْرَ بَاغٍ وَلَا عَادٍ فَإِنَّ اللَّهَ غَفُورٌ رَحِيمٌ
"He has only forbidden you dead meat, and blood, and the flesh of swine, and any (food) over which the name of other than Allah has been invoked. But if one is forced by necessity, without wilful disobedience, nor transgressing due limits, then Allah is Oft-Forgiving, Most Merciful." (Surah An-Nahl [16]: 115)
Looking into this maxim, it becomes clear that it is incorrect:
The evidences cited by those who advocate for this maxim do not indicate what they have concluded. Rather, the extent of what they indicate is that it is permissible, when compelled by necessity, to eat from dead meat and its like due to hunger: “But if any is forced by hunger” (makhmasah). Makhmasah is hunger and starvation nearing destruction. In such a case, it is permissible for him to eat from what is forbidden. As is clear in the verse, the "compulsion" (idhtirar) is restricted to starvation and does not exceed it. The wording is not general or absolute such that its meaning would extend beyond that; rather, it is restricted to starvation.
In some explanations of this rule by its proponents, they treat it like concessions (rukhas). However, even a concession requires a text (nass) and is not determined by the mind without a text. For example, breaking the fast in Ramadan during travel or illness is a concession because of the existence of a text, such as the saying of Allah (swt):
يَا أَيُّهَا الَّذِينَ آمَنُوا كُتِبَ عَلَيْكُمُ الصِّيَامُ كَمَا كُتِبَ عَلَى الَّذِينَ مِنْ قَبْلِكُمْ لَعَلَّكُمْ تَتَّقُونَ * أَيَّامًا مَعْدُودَاتٍ فَمَنْ كَانَ مِنْكُمْ مَرِيضًا أَوْ عَلَى سَفَرٍ فَعِدَّةٌ مِنْ أَيَّامٍ أُخَر
"O you who believe! Fasting is prescribed to you as it was prescribed to those before you, that you may (learn) self-restraint. (Fasting) for a fixed number of days; but if any of you is ill, or on a journey, the prescribed number (should be made up) from days later." (Surah Al-Baqarah [2]: 183-184)
Thus, all concessions are based on the existence of a text.
Accordingly, this maxim is incorrect in its general application as phrased by its proponents. The correct view indicated by the evidences they relied upon is that a Muslim is permitted to eat or drink what Allah has forbidden of prohibited foods and drinks in a state of necessity, and it does not indicate anything else. Concession in case of necessity in other situations requires other evidences.
It is worth noting that in this era, this maxim has become a "crutch" to permit every prohibition by making the word "necessities" a loose term under which many matters are included according to their interpretation of what they see as necessity, until falling into the forbidden in the name of necessity has become frequent!
As for the examples mentioned in the question which they permit under the pretext of the maxim "necessities permit prohibited acts," they are not permissible. A mature Muslim woman is legally obligated (mukallafah) by Sharia to wear the khimar, and it is not permissible for her to remove her khimar under the pretext of studying in foreign schools. Rather, if she wishes to study and it is not possible for her in foreign schools, she must look for other schools that allow her to wear the khimar and jilbab, or adopt another means of study, or migrate with her mahram to a country where study is possible for her, without removing her khimar. This is because there are no evidences that permit a mature woman to remove her khimar for the sake of study and learning.
As for a doctor seeing a woman's awrah (private parts) for her treatment, this also does not fall under the maxim "necessities permit prohibited acts." Rather, it is indicated by the evidences for the permissibility of seeking medical treatment (tadawi), such as the saying of the Prophet (saw) in the hadith narrated by At-Tirmidhi in his Sunan from Usamah bin Sharik, who said: The Bedouins said: "O Messenger of Allah, should we not seek medical treatment?" He said:
نَعَمْ، يَا عِبَادَ اللَّهِ تَدَاوَوْا، فَإِنَّ اللَّهَ لَمْ يَضَعْ دَاءً إِلَّا وَضَعَ لَهُ شِفَاءً، أَوْ قَالَ: دَوَاءً إِلَّا دَاءً وَاحِدًا
"Yes, O servants of Allah, seek medical treatment, for Allah has not sent down any disease without sending down a cure for it—or he said: a medicine—except for one disease." They said: "O Messenger of Allah, what is it?" He said: "Old age."
Undoubtedly, uncovering the awrah is a requirement for medical treatment in many cases, and the evidences for the permissibility of medical treatment apply to it. In these cases, the uncovering is for the areas required for treatment and medical care, and it is not permissible to uncover other parts of the awrah; i.e., only the necessary place of treatment.
Your brother, Ata Bin Khalil Abu Al-Rashtah
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