Assalamu Alaykom Wa Rahmatu Allah
Treating need in equal terms with necessity in permitting the prohibition
الحاجة تنزل منزلة الضرورة في إباحة المحظور
A group of contemporary scholars issued a fatwa that it is permissible to
borrow in interest for the purpose of completing the university study arguing
that education is a need and sometimes this need could not be satisfied except
through borrowing in interest. If borrowing in interest proved to be the only
alterative, they added, there would be no harm in it because need, like
necessity, turns the prohibition permissible.
In a question submitted to the senior judge Faisal Mawlawi (may Allah have
mercy on him as he passed away 2 days ago) titled: "Ruling on taking a
Riba-based loan from the university to continue one's study," the questioner
said:
I am a Muslim living in Sweden and want to continue my university study, but I
could not do that except by taking a Riba-based loan from the university. This
is the only way to continue my study. Should I reject it and stop my education?
Am I permitted to take the money considering my case a necessity? This is a
problem that all Muslims in Europe generally encounter and that would enable
non-Muslims only to study and prevent Muslims from effective participation in
the West. All Muslims and the new Muslim generations face this problem since
education is very important in the West. I do not mean that all Muslim students
must take Riba, but I am just asking about those who are forced by necessity to
take it. Please advise.
The answer of Sheikh Mawlawi was as follows:
It is known that Riba is one of the major sins, and both taking and giving it
are in principle prohibited. However, they vary in the sense that taking Riba
cannot be permissible under any circumstances or necessity, and were there any
necessity, it would permit only the Riba contract. In such a case, a Muslim
gives away the Riba he has taken or does not accept it from the beginning. That
is because there could be no necessity for taking Riba or benefiting by it.
Unlike giving Riba, i.e. borrowing in interest; there might be necessity for
it, and thus scholars permitted the Muslim to give Riba in such circumstances.
Continuation of study may be considered necessity since seeking knowledge is an
obligation, and if it is not necessity, it will unquestionably be a need that
most of Muslim jurists treat in equal terms with necessity. Therefore, if the
Muslim student could not continue his study except by borrowing in interest, it
would be permissible for him to borrow on condition one has tried his best to
look for other lawful ways.
The point in this fatwa is the sheikh's saying: "…and if it is not necessity,
it will unquestionably be a need that most of Muslim jurists treat in equal
terms with necessity." He also states that continuation of study is necessity,
and this will be discussed in the next topic – Allah willing. The sheikh's
fatwa is the same conclusion of the European Council for Fatwa and Research in
its previous fatwa which permits buying houses through Riba-based loans with
certain conditions. The ECFR affirmed that one of the reasons for permitting
this is considering the need like necessity in permitting the prohibition. Here
is part of the text of the fatwa with slight modifications: "This fatwa is
based on the following two major juristic considerations. First: The juristic
rule which states that extreme necessities turn unlawful matters lawful.
Moreover, Muslim jurists have established that need, whether for an individual
or a group, can be treated in equal terms like extreme necessity. Need is
defined as those things which put the Muslim in difficulty, if not fulfilled,
even if he or she can do without…" This fatwa implies permissibility of
borrowing in interest due to the need for education.
There are some comments on this argument that permit borrowing in interest due
to a need:
First: Scholars cited the rule "Need is treated in equal terms with necessity
in permitting the prohibition" in the books of Fiqhi rules and Al-Ashbaah
wan-Nadhaa'ir in order to prove forms of dealings the Sharee‘ah endorsed by
explicit texts. Since these forms of dealings were endorsed contrary to the
analogy, Muslim jurists introduced for that a rule which would show easiness of
the Sharee‘ah and how it alleviates hardship from people. In other words, Allah
The Almighty permitted for people what they need even if this would violate the
general rules and analogy. Perhaps the often-quoted statement that contemporary
scholars use for this rule is what As-Suyooti wrote in Al-Ashbaah wan-Nadhaa'ir
while explaining the rule "Need, whether for an individual or a group, can be
treated in equal terms like necessity." He said: "Lease, Gi‘aalah (Reward
allocated for bringing back lost items), and Hiwaalah (Bill of exchange) and
the like are with greater reason made permissible against the analogical
deduction. For instance, coating a pot with silver is permissible for a need.
The text signifies that the saying which considers the need a reason for
alleviation is not unconditionally applicable. Put differently, it is not
permissible for the Muslim to approach a matter which is prohibited by a text
because of a normal hardship involved. Rather, concession must come from the
Sharee‘ah itself by a text or obvious analogy. Thus, the rule was introduced
only in the context of grounding the rulings and demonstrating harmony of
Islamic legislation.
Second: In this regard, Al-Ghazaali (may Allah have mercy upon him) grounds for
the rule "What has been established against analogical deduction cannot be
extended to other cases", saying:
The second section refers to what is excluded from another rule and there is
significance for its exclusion. This rule is extended to every issue revolving
between the excluded and the remaining as well as sharing the cause of
exclusion. For instance, exclusion of Al-‘Araaya; it was not legislated to
abrogate or cancel the rule of Riba, but it was excluded due to people's need.
So, we draw analogy between the grapes and dates because we see them sharing
the same sense. Otherwise, we dare not do this conjunction.
Al-Ghazaali (may Allah have mercy upon him) affirms that stated needs should
not be unconditionally extended to unstated needs and stipulates existence of
significance to its exclusion, i.e. presence of a common cause. Thus, he
treated grapes like dates in the sense that it is permissible to sell grapes
unequally for raisins due to a cause that he did not express. Perhaps the cause
is storing or that the sold items are fruits. Ibn Hajar articulated this cause
while explaining the Hadith of Al-‘Araaya. He said: "The righteous predecessors
differed whether or not grapes could be conjugated with others like dates in
Al-‘Araaya. Some scholars, like Dhaahiris, contested it, whereas some Shaafi‘i
scholars, like Al-Muhhib At-Tabari, approved it. Other scholars said that it is
conjugated with grapes only, and this is the dominant opinion of the Shaafi‘i
school of jurisprudence. Maaliki scholars said that every item that can be
stored is included, and Ash-Shaafi‘i also said it is extended to every
fruit."Each cause suggested by Ibn Hajar could be deemed an obviously defined
description that serves as a valid cause for the ruling, and it is obvious that
here need alone cannot be considered as a valid cause for the ruling.
Ibn Qudaamah came to the same conclusion when he talked about Al-Istislaah or
Al-Masaalih Al-Mursalah (public interest) as one of principles of the Hanbali
School of jurisprudence. After mentioning examples for the needs and personal
preferences, he said: "There is no disagreement that it is not permissible to
adhere to these two categories without evidence. Had this been permissible, it
would have been introducing to the Sharee‘ah by reason, and we would not have
needed messengers. Also, the common Muslim would have been equal to the scholar
since every person knows his personal interest.
Third: From all the quotations above, one gets assured that the rule "treating
needs in equal terms with necessities" is an Usooli rule, not a Fiqhi rule. It
means it is not required that need is established for individuals so that
lease, Hiwaalah and Salam are made lawful for them; rather, they are rulings
and lawful transactions for the beginning and the Sharee‘ah permitted them due
to people's need for them. Thus, other cases should not be extended to them due
absence of the legalizing text. Assuming otherwise would result in the fact
that whatever people need in general becomes lawful for all of them, whether
they need it or not, since need establishes a permanent ruling and is not
required to exist with individuals. To apply the rule to our issue, borrowing
in interest would be permissible for all the students regardless their need
since need is treated in equal terms with necessity in permitting the
prohibition! No scholar can say that. So, it is inevitable to conclude that the
rule is an Usooli one, and the need mentioned in it reflects a continuous
needful matter on which the Sharee‘ah based some rulings.
Fourth: presence of necessity with some individuals is the only exception to
the above discussion. In such a case, they are permitted to violate the
Sharee‘ah rule to the extent in which necessity and need are satisfied, and
thus it could be said "need is treated in equal terms with necessity in
permitting the prohibition." Necessity must exist first in order for the need
to be incorporated. Imam Al-Joowayni explained what a Muslim can take when
prohibition is unavoidable and the lawful is not available, saying: "In this
subject, it is supposed that prohibition dominates and people of the area
cannot leave their dwellings or move to other lawful locations…it must be
limited to the extent needed, and things related to luxury and entertainment
are forbidden. Were this impossible provided they are a large population and
living in such hard conditions and waiting elapse of the times of necessity
will deprive them of their needs, the ruling would apply to them like all
people, i.e. they should take only the extents needed as previously detailed.
To sum up, it is not valid to support permissibility of borrowing in interest
to continue the university study by the rule "Need is treated in equal terms
with necessity in permitting the prohibition."
Dr.Main Al-Qudah
Assistant Professor of Islamic Studies
Imam, MAS Katy Center
Member, AMJA Fatwa Committee
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سياسة النشر في المجموعة:
ترك ما عارض أهل السنة والجماعة... الاكتفاء بأمور ذات علاقة بالاقتصاد الإسلامي
وعلومه ولو بالشيء البسيط، ويستثنى من هذا مايتعلق بالشأن العام على مستوى الأمة
كحدث غزة مثلا... عدم ذكر ما يتعلق بشخص طبيعي أو اعتباري بعينه باستثناء الأمر
العام الذي يهم عامة المسلمين... تمرير بعض الأشياء الخفيفة المسلية ضمن قواعد
الأدب وخاصة منها التي تأتي من أعضاء لا يشاركون عادة، والقصد من ذلك تشجيعهم على
التفاعل الإيجابي... ترك المديح الشخصي...إن كل المقالات والآراء المنشورة تُعبر
عن رأي أصحابها، ولا تعبّر عن رأي إدارة المجموعة بالضرورة.
