Question:

Assalamualaikum ustaz. What is the ruling of taking the rights of another in exigent or desperate situations, for instance, in a flood where basic needs aren’t available? Hope for an explanation.

Answer:

Waalaikumussalam wrt. wbt.,

Alhamdulillah, praise and gratitude to Allah SWT for His countless blessings for us all. Praise and salutations to our beloved Prophet Muhammad PBUH, his family, companions, and all those who follow his footsteps until the Final day.

We start with the statement of Allah SWT:

وَلَا تَأْكُلُوا أَمْوَالَكُم بَيْنَكُم بِالْبَاطِلِ وَتُدْلُوا بِهَا إِلَى الْحُكَّامِ لِتَأْكُلُوا فَرِيقًا مِّنْ أَمْوَالِ النَّاسِ بِالْإِثْمِ وَأَنتُمْ تَعْلَمُونَ

“And do not consume one another’s wealth unjustly or send it [in bribery] to the rulers in order that [they might aid] you [to] consume a portion of the wealth of the people in sin, while you know [it is unlawful].” [1]

The above verse can be understood that some of you shouldn’t consume (take) the property of another unlawfully such as through false vows, seizing, stealing, bribery, usury and others. Furthermore, don’t present false arguments to a judge for the purpose of taking the rights of a group of people through a wrongful act whilst you know that what you are doing is prohibited. [2]

Moreover, the Prophet PBUH also said:

كُلُّ الْمُسْلِمِ عَلَى الْمُسْلِمِ حَرَامٌ، دَمُهُ، وَمَالُهُ، وَعِرْضُهُ

“Every Muslim’s blood, property and honor are unlawful to be violated by another Muslim.” [3]

This hadith shows the obligation of a Muslim towards his brother, which is it is prohibited for him from spilling the blood of a Muslim and violating his property such as stealing or robbing or deceiving in trade. [4]

Hence, basically, every Muslim individual is prohibited from taking and using the rights of another without first obtaining the permission of its owner.

Understanding the concept of al-Darurah

Before we went further, let us first understand the concept of al-darurah. Al-Darurah is an Arabic word that originated from the word al-darar which means an unavoidable calamity. [5] It is the antonym of the word al-naf’ which means benefit. In other words, al-dar is the antonym of benefit or something that isn’t good. [6]

Scholars such as al-Nawawi [7] and al-Zuhayli [8] relate the meaning of darurah (exigent/desperate) with a situation that could lead to the loss of life such as one being forced to consume prohibited food in order to save his life and in a desperate situation. This means the darurah meant is in a situation or circumstance that could lead to harm to one’s life or body parts.

However, some scholars explained darurah situation without relating it to harm or destruction due to not taking from something that is prohibited. This is as stated by Malikiyyah scholars where darurah is included as a fear that harm may happen to oneself whether it is for certain or zhan or concern that death might happen. The fear and concern have put the person considered to be in the exigent (darurah) situation. [9] It is also stated by Syafi’iyyah scholars that whoever doesn’t eat prohibited food will die or increase his illness or prolong his illness when there isn’t any halal food available except the prohibited food, then it is obligatory for him to eat it. [10]

There are numerous evidences on the sanctioning of darurah in both the Quran and hadiths of the Prophet PBUH. Among them is the statement of Allah SWT:

إِنَّمَا حَرَّمَ عَلَيْكُمُ الْمَيْتَةَ وَالدَّمَ وَلَحْمَ الْخِنزِيرِ وَمَا أُهِلَّ بِهِ لِغَيْرِ اللَّـهِ ۖ فَمَنِ اضْطُرَّ غَيْرَ بَاغٍ وَلَا عَادٍ فَلَا إِثْمَ عَلَيْهِ ۚ إِنَّ اللَّـهَ غَفُورٌ رَّحِيمٌ

“He has only forbidden to you dead animals, blood, the flesh of swine, and that which has been dedicated to other than Allah. But whoever is forced [by necessity], neither desiring [it] nor transgressing [its limit], there is no sin upon him. Indeed, Allah is Forgiving and Merciful.” [11]

Although the verse is regarding the issue of eating prohibited food during an exigent situation, there is an Islamic legal maxim which states:

الْعِبْرَة بِعُمُومِ اللَّفْظِ لا بِخُصُوصِ السَّبَبِ

“Ibrah (lesson/wisdom) is taken based on the generality of the statement and not the specificity of the reason.”

Whereas, in a hadith narrated by jabir bin Samurah RA, he said:

أَنَّ أَهْلَ بَيْتٍ كَانُوا بِالْحَرَّةِ مُحْتَاجِينَ ، قَالَ : فَمَاتَتْ عِنْدَهُمْ نَاقَةٌ لَهُمْ ، أَوْ لِغَيْرِهِمْ، فَرَخَّصَ لَهُمُ النَّبِيُّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ فِي أَكْلِهَا ، قَالَ : فَعَصَمَتْهُمْ بَقِيَّةَ شِتَائِهِمْ ، أَوْ سَنَتِهِمْ

“There was a family in Harrah (near Medina) who are in desperate need. Then, their camel or another animal died. Hence, Rasullullah gave facilitation for them to eat its carcass. (Jabir) said: (the camel’s carcass) is sufficient for them for the winter or the rest of the year.” [12]

The Quranic evidences show that there is an exception (istithna’) during exigent situations to prevent the loss of life. Al-Bazdawi and commentary, usul and other scholars state that Allah SWT exempted (the prohibition) in exigent situations, the exemption from prohibited means it is permissible. [13]

Syeikh Dr Wahbah al-Zuhaili stated that the conclusion from the discussion regarding darurah is that darurah is the concept of which its implication is that it permits what has been prohibited by syarak or the permissibility of leaving an obligation. Thus, in his opinion, darurah is a dangerous situation of extreme hardship that people face where they are worried it can endanger their lives or body or dignity or mind or wealth and anything related to them. During these times, it is permissible to take the prohibited or leave an obligation or postpone it from its time to avoid grave harm according to strong assumptions following the syarak guidelines. [14]

He then proceeded to present there are at least seven matters under the guideline of darurah situation.

• The darurah situation is actually happening and not just an assumption where there is harm to lives or property. If there is a concern based on assumption, then it must be a strong assumption after undergoing the process of experience and observation;
• The person in the exigent situation doesn’t have any other permissible route by syarak to avoid the harm except through the prohibited route;
• When both the prohibited and permissible matter exist, however, he is forced to take the prohibited because he is threatened with something or someone that he might lose his life or body parts (al-ikrah al-mulji’);
• The person in the exigent situation (forced) to strive to not choose something that clearly contradicts or is against the basic principles of the Islamic shariah and the usul aqidah such as he doesn’t choose to commit adultery, murder, choose disobedience and taking the rights of others, for, in truth, these matters are mafsadah (harm). This means that if in an exigent situation and he cannot free himself from the situation, for there isn’t any permissible routes, except several prohibited routes, hence, he must choose the lighter prohibition and it shouldn’t clearly contradict the basic matters in Islam;
• The prohibited or restricted matter must be taken only at the minimum or necessity level. The reason is the permissibility of taking the prohibition or restriction is only in an exigent situation and the exigency must be measured at the necessary rate;
• In the issue of taking or consuming medicine from prohibited products to preserve life, the additional condition that must be fulfilled is that the consumption of the medicine must be recommended by a trustworthy doctor whose religion and religious knowledge are good as well as his expertise is recognized and it is proven that there is no other halal medicine available;

In the state government ruling, the government should ensure to preserve the public and country’s well-being even if sometimes they are forced to take the prohibited route when the halal route is less effective in maintaining the interest of the nation. [15]

The ruling of taking the rights of others in exigent situations

This matter has been discussed by jurists and they stated that a person is permissible to take the rights of another if he is in an exigent situation where if he didn’t take it then it could lead to his death or near destruction to himself.

This means, that if he eats from something that isn’t his, he may die or nearly die, regardless if it is for himself, his children or his dependents. However, it mustn’t be a normal state of hunger. Likewise, the consumption of any type of medicine, or clothing that he uses to keep out the excessive cold, will ultimately lead to death or near death.

This is in line with the verse of the Quran in several places, among them is a statement of Allah SWT:

فَمَنِ اضْطُرَّ فِي مَخْمَصَةٍ غَيْرَ مُتَجَانِفٍ لِّإِثْمٍ ۙ فَإِنَّ اللَّـهَ غَفُورٌ رَّحِيمٌ

“But whoever is forced by severe hunger with no inclination to sin – then indeed, Allah is Forgiving and Merciful.” [16]

Ibn Kathir explained: Whoever is forced to eat the prohibited as stated by Allah SWT because of an exigent situation, then it is permissible for him to eat it, and Allah SWT is the Most Loving and Most Forgiving. The reason is Allah SWT knows the needs of His slaves who are in grave hardship for the food, hence, Allah permits (eating) it and forgives them. [17]

In another verse, Allah SWT states:

فَمَنِ اضْطُرَّ غَيْرَ بَاغٍ وَلَا عَادٍ فَلَا إِثْمَ عَلَيْهِ ۚ إِنَّ اللَّهَ غَفُورٌ رَّحِيمٌ

“But whoever is forced [by necessity], neither desiring [it] nor transgressing [its limit], there is no sin upon him. Indeed, Allah is Forgiving and Merciful.” [18]

Syeikh Dr Wahbah al-Zuhaili said: Allah SWT conditioned the permissibility of eating prohibited matters in His statement ‘غَيْرَ بَاغٍ وَلَا عَادٍ’ so that people wouldn’t follow their nafs in interpreting exigent situation that he assumed he is in an exigent situation when he isn’t and he transgresses the limit of the exigent situation or necessity taking advantage of the emergency situation and follow his desires. [19]

Furthermore, an Islamic legal maxim states:

الضَّرُورَات تُبِيْحُ المَحْظُورَات

“Exigent situations permit prohibited matters.”

According to Syeikh Muhammad al-Zuhaili when discussing the above maxim, an exigent situation for a person is only when if he doesn’t take something from the prohibited matter, then it will harm himself or near to destruction, such as loss of body parts or senses and this is considered as exigent situation according to syarak. [20]

Thus, this matter must be based on the ruling of the exigent situation by ensuring that the person is really in a situation where he is forced to take it.

In an Islamic legal maxim:

الضَّرُورَةُ تُقَدَّر بِقَدَرِهَا

“Exigency is determined by its measure.” [21]

The agreed meaning for this maxim is that if it is a permissible matter built on exigency, then the implementation must follow only the necessary measure. It isn’t permissible to be more than that. [22]

Another maxim states:

مَا أُبِيحَ لِلضَّرُورَةِ يُقَدِّرُ بِقَدَرِهَا

“What is made permissible due to exigent situation is permissible only according to its measure.” [23]

According to Ibnu Nujaim, in the issue of a person eating a carcass in an exigent situation, then he should take only the necessary amount to preserve his life. [24]

This means if we should eat to stay alive, then eat only what is necessary. Don’t take more than that.

Afterwards, after the exigency passed, and we know the person whose rights we violated, then we should pay it back to the person who bears the loss for the matter that we have taken. This follows the maxim:

الاِضْطِرَارُ لاَ يُبْطِلُ حَقَّ الْغَيْرِ

“Exigent situation doesn’t abrogate the rights of others.” [25]

This maxim explains that although a person experiences some sort of hardship to take a prohibited and sinful matter if he commits it, however, it doesn’t mean that it makes it permissible to abrogate or cancel the rights of others. This means a person still has to replace the property (right) that he was forced to take or benefit from, from the property of another person in the exigent situation. [26]

Hence, a person who is famished and is forced to eat the food of another, then he is obligated to replace the food or pay compensation to the owner as stated in the above maxim, that is, an exigent situation doesn’t abrogate the rights of others. If the thing he benefitted from is in the form of an item or something then, he must replace the item with a similar or same item. If not, then he should replace it by paying the price of the item. [27]

Closing

We state that if a person doesn’t have any opportunity in saving himself except by taking the rights of another person, then he should just take what is necessary. It must be in a situation where he is in desperate need that could endanger his life or nearly destroy himself or his family.

Furthermore, anyone who is capable especially the government and those who are wealthy should offer help to ensure that the people and citizens wouldn’t be in a situation when they are forced to take groceries or items from shops without permission. If this isn’t contained and become widespread, then it will lead to chaos and disarray in this country and others who aren’t in desperate need would also take advantage of the situation and this would ultimately lead to disaster in the legal system and country’s management.

Moreover, the attitude and action taken by the owner of the premise to forgive those who steal from his store are truly commendable and praiseworthy.

Wallahu a’lam.

[1] Surah al-Baqarah : 188

[2] See al-Tafsir al-Muyassar, pg. 29

[3] Narrated by Muslim (2564)

[4] See al-Adab al-Nabawi, 1/137

[5] See Mu’jam al-Ta’rifat, pg. 117

[6] See Lisan al-’Arab, 4/482

[7] See al-Majmu’ Sharh al-Muhazzab, 9/52

[8] See Nazariyyah al-Darurah al-Shar’iyyah, pg. 54

[9] See al-Qawanin al-Fiqhiyyah fi Talkhis Madhhab al-Malikiyyah, pg. 137

[10] See Mughni al-Muhtaj, 4/306

[11] Surah al-Baqarah: 173

[12] Narrated by Ahmad (21100)

[13] See Kashf al-Asrar, 4/1518

[14] See Nazariyyah al-Darurah al-Shar’iyyah, pg. 68

[15] See Nazariyyah al-Darurah al-Shar’iyyah, pg. 69-72

[16] Surah al-Ma’idah: 3

[17] See Tafsir al-Quran al-‘Azim, 2/14

[18] Surah al-Baqarah: 173

[19] See al-Tafsir al-Munir, 1/325

[20] See al-Qawaid al-Fiqhiyyah wa Tatbiqatiha fi al-Mazahib al-Arba`ah, 1/276

[21] See al-Asybah wa al-Nazha’ir by al-Suyuti, pg. 184-186

[22] See Durar al-Hukkam Syarh Majallah al-Ahkam, 1/38

[23] See al-Asybah wa al-Nazha’ir by Ibn Nujaim, pg. 107

[24] See al-Asybah wa al-Nazha’ir by Ibn Nujaim, pg. 107; Syarh al-Manzumah al-Sa’diyyah, pg. 71

[25] See Syarh al-Qawa’id al-Fiqhiyyah by al-Zarqa, pg. 213; Mausu’ah al-Qawa’id al-Fiqhiyyah, 2/208

[26] See Syarh al-Qawa’id al-Fiqhiyyah by Mustafa al-Zarqa, pg. 161 and Qawa’id Ibn Rajab, pg. 136

[27] See al-Qawa’id al-Kulliyyah wa al-Dawabit al-Fiqhiyyah by Dr Muhammad Uthman Syabir, pg. 227