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SITUATIONS AND REASONS THAT LEAD TO DARURA
Dr Yasmin Hanani Mohd Safian, Associate Professor
at Faculty of Syariah and Law, University sains Islam, Malaysia
Different writers have their very own categorisation of Darura circumstances. For
example, Zuhaili has listed 14 categories of situation which he deems Darura. The lists include
the situations of food and drink, complete compulsion,
forgetfulness, ignorance, al-usr and
umum al balwa (hardship and hard-to-remove difficulties), travelling, sickness, al-naqs al-tabii
(natural defect), legitimate defence, istihsan (juristic preference), maslaha (custom), urf (legal
custom), sadd al-dharay (blocking the means) and capturing one‘s property. Meanwhile, in his
thesis, Mutairi listed only four causes of
necessity which are compulsion, legitimate defence,
illness and change in circumstances [1]. Having examined both works, neither can be regarded as
giving a comprehensive list of darura situations. It can be assumed that such categorisations are
mainly based on exemplary cases in classical jurist works or fiqh treatises. However, Mutairi
added a new case of necessity, that is, a change in circumstances. Although Zuhaili's
categorisation may seem quite comprehensive, he has actually mixed the necessity cases with the
non-necessity cases, for example, the cases of ignorance and forgetfulness.
Ignorance and
forgetfulness are not Darura cases as there is no serious harm inflicted and no human necessities
to be protected. However, these cases of ignorance and forgetfulness are excuses which destroy
or impair the legal capacity of a person or change the injunctions applicable to him during the
circumstances [2]. The same is the case of naqs al-ÔabÐÝÐ (natural defect).
A person who has a natural defect is not considered as a mukallaf, hence, he has no
religious obligation to fulfil. In a Darura For instance, a man has not been legally obliged to
perform an act unless detailed knowledge and information about it has been provided.. There are
also two main conditions for the application of the command to a person under obligation; they
are reason and legal capacity. The legal capacity of a man for legal command is realised by
intelligence. Circumstances that affect
legal capacity include lunacy, infancy, idiocy,
forgetfulness, sleep, fainting, slavery, death illness, menstruation, childbed and death 392
situation, the person under duress is considered to be a complete mukallaf, but the pressing
situation is an impediment to him following the strict rule. ÝAwÁrià samÁwiyya (the work of
providence) and ÝawÁrià muktasaba (human symptoms affecting legal capacity) Having
examined the nature
of circumstances of necessity, I tend to classify Darura cases into two
general categories; ÝawÁrià samÁwiyya and ÝawÁrià muktasaba. This categorisation is
originally adapted from the jurists' classifications for ÝawÁrid al-ahliyya, impediments to legal
capacity [4].
Muslim jurists agreed that there are several legal impediments exempting a person from
religious obligations. The impediments of legal capacity fall into two classes, the work of
providence (ÝawÁrià samÁwiyya) and those which are created by man (ÝawÁrià muktasaba).
However, these impediments are general and comprise all situations,
including both non-
necessity and necessity. It includes ignorance, being a minor, sleeping, forgetfulness, duress and
necessity. As necessity is also part of legal impediments, the cause for necessity case can also be
divided into the two same causes, causes created by human and causes created by God. The
Darura cases which are classified as ÝawÁrià samÁwiyya are circumstances which are beyond
16
human control. These include hunger, thirst, famine, natural disaster, shipwreck, plague, lack of
water for prayer and severe illness.. On the other hand, the examples for Darura situations that
fall under the category of ÝawÁrià muktasaba, are duress, compulsion, war and legitimate
defence. Jurists unanimously agreed that duress and compulsion are both Darura situations, as
discussed in the interpretation of Q2.173. Explicitly in Q16.106,
God has remarked that who
utters the word unbelief because of compulsion is forgiven. In this matter, I have chosen the case
of duress to illustrate the case of Darura that is caused by human factors. According to Gimaret,
taklÐf is a term of the theological and legal vocabulary denoting the fact of an imposition on the
part of God of obligations on his creatures, of subjecting them to a law. The corresponding
passive participle mukallaf is used of someone who is governed by this law and in this
connection, in legal language; it denotes every individual who has at his disposal the full and
entire scope of the law [5].
Reference:
1.204 See Zuhaili NaÛariyÁt al-ÂarÙra al-SharÝiyya and and Mansour al-Mutairi, Necessity in
Islamic Law, pp. 78-165 205.
2.See Ahmad Hassan, The Principle of Islamic Jurisprudence, p. 257.
3.See pp. 308-332 . See Gimaret, D. ―TaklÐf (a.).‖ Encyclopaedia of Islam, Second Edition. P.
Bearman; Th. Bianquis; C.E. Bosworth; E. van Donzel and W.P. Heinrichs (eds.). Brill, 2010].
Brill Online. EXETER UNIVERSITY. 26 July 2010.
[4] . In the discussion of ÝawÁrid al-ahliyya.
[5]. 207 See al-QarawÐ, al-ÂiyÁÝ al-LÁmiÝ , Vol. I, pp. 164-173 93.
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