The Quranic policy is:

Allah desireth for you ease; He desireth not hardship for you. (2:185)

We hath chosen you and hath not laid upon you in religion any hardship. (22:78)

The Prophet (peace be upon him) i s a l s o r e p o r t e d t o h a v e insisted on the same point on a number of occasions. This is one of the most misinterpreted and most misused rules for want of clarification. Hardship for physical persons as hinted in the Quran has been defined by jurists as a situation in which acting upon an injuction of the Sharia causes loss of life or limb or leads one to performance of a prohibited act. Islam insists that one should earn by lawful means alone and should only consume what is permissible. These restrictions may sometime lead a person to die of starvation for want of a lawful earning or availability of a permissible esculent. When a person is - placed in such dire circumstances the Islamic law permits the use of an unlawful item.

Muslims are prohibited from shedding the blood of their brethren. Thus if an aggressor on dar-al-Islam* deploys Muslim soldiers on the front line. Islamic law considers it permissible to disregard the presence of Muslims in the front line of the enemy in repelling the attack even though that would entail the killing of innocent Muslims which, as a rule, is absolutely prohibited. In both cases the primary objectiveof the Sharia is the protection of Muslims and the defence of dar-al-Islam. Thus theobstacle that confronts the achievement of this primary objective will have to be overcome by relaxing the two conditions.

There are cases in which the Quran and/or the Hadith have outlined the nature of hardship which forms the basis/cause of relief. In such cases no other hardship is taken into account for claiming similar or further relief. There are, however, situations where the Quran and the Hadith have not laid down the hardship which calls for relief or relaxation while acting upon some injunctions. It is here that experts of high calibre may determine whether this really deserves relief. An important point that needs to be emphasised here is that the object of providing relief in case of a hardship consists of facilitating a more efficient achievement of the objective of the Sharia. This provision of relief is motivated by the spirit of compliance rather than escapance.

Similarly, there are situations in which the Quran or the Hadith grant a relaxation in principle. In such cases the relief is restricted to those laid down in the text and only to that extent, but no further.

It is prohibited to sell the fruits on the tree before they come to maturity.

It is also prohibited to sell foodgrain for the same quantity and specie of foodgrain for delivery in future. Moreover, the quantity sold should be determinable and not conjectura1. The Hadith relaxes this principle to the extent of 5 wasqs in the case of date and grape for those cultivators who need them but they have to wait long for their own produce. Those cultivators are allowed to sell conjecturally a quantity of their expected fresh produce for a quantity of dry produce available promptly. The relaxation so granted cannot be further expanded in items, quantity or in situation.

Similarly a contract to sell a commodity which one does not possess at the time of making the sale contract is not lawful.
Bay’ Sa/am which technically means prompt payment for a commodity that the seller does not possess is permissible in the case of producers who need finance for inputs. If finance is not forthcoming at the time of sowing, production will cease which will
be harmful for the entire community. To ensure productive .activity is not hampered the cultivator is allowed to sell his expected produce against advance .payment. In this particular case, however, the Prophet (peace be upon him) made a relaxation in the law of sale of goods. Thus the relaxation in the principle of “sale before possession” will remain confined to Bay’ Sa/am only and cannot be used in other sale transactions.

In contracts of hire and commission one party agrees to pay for a benefit (hire) or a part of the proceeds (commission) which does not exist at the time of making the contract. In principle this absence of the consideration should have nullified the contract but it was the rule of universal need that such contracts were permitted.

While elaborating this application, early scholars have cited a number of examples applicable to economic life:

Hardship may be faced because of compulsion, distress and universal affliction (umum balwa), physical handicap, ignorance, forgetfulness, sickness and journey. The relaxations that are granted in many of these situations take a variety of forms, for example:

(a) Relaxation (Suqut). The Quran prescribes eight different heads of expenditure of Zakat proceeds (9:60). In view of practical difficulties that an Islamic state would face in allocating Zakat proceeds among all the heads together it has been made optional to set priorities and neglect some of the heads.

It is because of this factor or hardship that Hanafites absolve the sahib mal (owner of wealth) from paying Zakat if his Zakatable property is destroyed.

The doctors who are in favour of levying Zakat on all the items of land-produce exempt vegetable produce from the levy. The probable reason is the hardship in their prompt distribution among the beneficiaries in a wholesome condition because they are perishable and cannot generally be stored. Moreover, there is also hardship in managing daily collection of Zakat on a large number of items of vegetables which are picked up every day.

A contract of sale must precisely specify the quality and the nature of merchandise on sale; failing, the contract would be treated as void. Yet, there are certain commodities whose quality cannot be ensured without damaging them.
Pomegranate or uncooked egg, for example, cannot normally be sold without skin. Removing the skin would be a damaging exposure. It is in such cases that the rule of precisely defining the content of merchandise will be relaxed.

(b) Decrease (tanqis). The Quran ordains Muslims to fulfil their promises / contracts (5:1; 17:34; 23:8). This does not accept nullification even though the conditions laid down become impracticable or injurious to either or both the parties. It is in view of this hardship that a large number of commercial contracts have been made revokable (aqd qhayr lazim).

The rate of levy of Sadaqa on land produce is 10% (Ushr). In view of hardship that a farmer has to face in irrigating his land as compared with rain-irrigated lands, the Prophet (peace be upon him) has reduced the rate of levy on irrigated produce to 5%.

(c) Advancing (taqdim). Sadaqa or Zakat is due on the completion of a full year or on harvest. In case the government is in desperate need for Zakat funds it may
request the payer to pay the same in advance of its becoming due. Advance payment of price in the case of bay salam and bay istisna* are also examples with the object of meeting the need of the cultivator or craftsman.

(d) Postponement (Ta’khir). A debtor is morally bound to settle his debt on or before the stipulated date. Default in timely discharge is not only sinful but also exposes the debtor to legal action. But there may be situations in which he is unable to pay the loan. This will require for deferment to a future date lest he should commit a sin by refusing to pay the loan.

(e) Permission (tarkhis). The Quran prohibits consumption of wine, pork, and carrion. But in case water is not available one is allowed to use wine for swallowing down if he fears death from choke-throat. The reason is protection of one’s life from sure death.

Similarly a man who is dying of starvation for want of permissible food is permitted to use carrion or pork in a quantity required just to save his life.

It should be noted that permission to act on this basis is restricted by time and extent in the sense that this permission is purely temporary and the quantity consumed or act rendered should be the barest minimum sufficient to save one from death or irreparable damage. This qualification is applicable in the case of permission for all unlawful items and acts. The restriction is explained by the Quran in the following words:

“But he who is driven by necessity, neither craving nor transgressing, it is no sin for him. Lo; Allah is Forgiving, Merciful. (2: 173)”

It will be found from the above discussion that all these relaxations are amenable to the situation of necessity. But any necessity cannot qualify for relaxation. This requires defining the Sharia concept of necessity which plays a very important role in
elaborating the main rule. The concept not only forms the basis of many subsidiary rules but also lays down the limitations within which the main rule has to operate. The rule “necessities (ad-darurat) justify that which may be unlawful” is the most important principle that provides us with guideline to bypass the impasse in practising upon the principles of the Sharia. The scholars, while defining necessity, have distinguished between darura (compulsive necessity), and haja (need). For them darura is an indispensable necessity which, if not met, may cause severe hardship resulting in loss of life -- known or suspected. Haja on the other hand, is a need which when unsatisfied, does not cause hardship. It affects convenience and efficient performance of an act.*

In addition to the compulsive character of necessity jurists have laid down certain conditions which should be met before relaxation is sought. These conditions include:

(i) The necessity should be in esse but not speculative or imaginative.

(ii) No lawful alternative should be available to the suffering person than the one which calls for relaxation.

(iii) The solution should not infringe the inviolable rights of the people leading to homicide, apostasy, usurpation of property (ghasb) or indulgence in unlawful sex.

(iv) There should be a very strong justification such as the protection of life or limb, for relaxation to the extent of consuming an unlawful thing or performing an unlawful act. The relaxation is made only to the barest extent that may avert the threat to life or limb.

(v) In view of experts it should be a genuine solution and the only one available. For example, in the case of medical treatment, only an expert physician is competent to pronounce whether liquor alone is the available remedy for disease and that nothing else would be effective .

(vi) In addition to the above, a very important condition of permitting an act under constraint or compulsion is that

* “necessity does not destroy the right of others: for example one who is compelled to eat the food of another is still liable to pay the cost”

A government may compulsorily take over the property of other persons if it is necessary for achievement of important social and national objectives but it will be required to pay fair compensation.

It is under the above conditions that relaxation is allowed in the main principle. In case, however, the hardship is not so extreme as to endanger life o r l imb i t wi l l no l o nge r b e t e rme d darura. It may be termed as haja which, if faced casually or by individuals, will not justify any relaxation. However, if this haja has become general or universal and the entire society or a group of the society is confronted with hardship, this will call for relaxation. It is because of this consideration that the Prophet (peace be upon him) has allowed such as hire, bay salam and istisna even though they run counter to the rule of the sale of non existent commodity. The object of relaxation is to overcome the impediments in the smooth economic functioning of the society. Thus the relaxations that can be made for the society on the ground of general need cannot be allowed in the case of individual needs. As an example the general principle is that a person is allowed to use only what he owns.

In case the entire society is made to rigidly follow this principle economic activities would be confined to those actuated by purely selfish motives and would become altogether bereft of benevolence and mutual cooperation. No entrepreneur would like to offer his skill to the saver (mudaraba contract). No businessman would join the other to carry on joint business (shirka contract), nobody would borrow for his personal and business needs, nobody would sell on deferred delivery basis (bay salam) or take an advance for manufacturing an article (istisna) or rendering a service (ujra). An individual can do without all such contracts but if the entire society is made to refrain from such contracts it will drastically curtail production, consumption and investment and ultimately may ruin the economic structure of the Islamic state and might undermine the economic well-being of the people. The Sharia, in order to remove. such impediments, has legalized a number of contracts which are likely to expand the scope of economic activity and promote economic cooperation; Thus in certain cases, what is an ordinary need, haja, of the individuals becomes an indispensable need, darura, of the society.

Some scholars have classified the degrees of permission (tarkhis) taking into account the urgency of the situation and the benefit (maslaha) which the Sharia intends to achieve. According to them on some occasions the permission to do an unlawful act might become obligatory while at some other time it might only be recommended. While in some other situations it would simply be treated as optional. These three degrees can be made equally applicable to the individual acts as well as to government policies. Applying this classification to individuals it becomes obligatory if human life is at stake. For example, if a person is dying of choke-
throat but has nothing to swallow except with wine, he is obligated to use it and save his life.

The example of a recommended permission is transfer of the liability of debt (hawala) to a non-borrower. Optional permission lies in allowing the patient of scabies to wear silken attire which otherwise is prohibited for men.

A trustee of an orphan’s or an insane’s property, compelled by necessity, has the option to utilize the property to the extent of his service to the owner.

Relaxation in the case of society or government becomes obligatory when the community feels that it would suffer an irreparable loss. Payment of interest is not permissible for any Muslim including the Islamic State. But in case it is unable to make prompt payment for military hardware to prepare itself for the defence of dar-al-Islam it must make credit purchase even though the credit is available only at interest.

The same rule will apply in case the country is witnessing a famine and is threatened by the loss of a large number of lives. Ordinarily, the government is not allowed to compel traders to sell their goods or fix their prices. However, in the event of scarcity of bare necessities, their hoarding and mal distribution justifies the government intervention to control supply and price of the commodities concerned.

Relaxation becomes recommended when the original injunction implies some procedural difficulties. The element of gharar makes a contract/transaction void. But this does affect the enforceability of an unilateral offer of gratuitous payment. It would be advisable for government to announce the award of suitable prizes on good performance by its citizens.

As a general rule a trustee is not liable for the loss of trust property. But in the case of general misbehaviour of the trustee it may be recommended to make him liable for the loss of property inflicted on account of trustee's negligence.

Normally the government has no right to exact money from the people even though as a compulsory loan. But in order to relieve inflationary pressure and restrict the expansion of money it will be desirable to bind the wealthy individuals and financial institutions to compulsorily subscribe to contractionary loans/bonds floated by the government.

Wages are to be determined by contracts freely made between the concerned parties. But in case the government finds that one of the two contracting parties is, due to superior resources or bargaining power, inclined to exploit the other party by dictating unfair terms, it is desirable for it to fix minimum / normal wages.

Similarly, there may be situations in which it would be advisable for the government to freeze wages and salaries.

There are some situation in which relaxation is simply optional but not compulsory or desirable. It would be optional for the government, for instance, to fix prices of certain commodities and rents of some categories of premises at some places and to impose credit ceilings for financial institutions.

It may also fix the crops that should be grown in some regions and may put a ban on the manufacture of certain items provided that it finds those actions to be in the interest of some particular class or community rather than the community as a whole.

It should be noted carefully that there is a basic difference between the extent of relaxation on account of darura and on account of haja. Similarly, there is a difference between relaxation for individuals and for society. Hardship falling in the category of darura facing individuals involves loss of life or limb, and hence rightly calls for relaxation in basic principles of the Quran or Sunna. On the other hand, hardship faced by society which is not of the class of darura but is treated as haja is less severe and only affects smooth and efficient performance of social institutions. It does not claim relaxation in subsidiary rules that are based on analogical reasoning of the fuqaha. The former relaxation is purely temporary and ends with relief in hardship. The later relaxation continues for as long as it is found beneficial to the society.

While the rule* “necessities justify that which may be unlawful”

broadens the scope of activity there are counter-rules to prevent the misuse of the permissibility and relaxation. One such counter-rule, as laid down by some jurists, reads as ** ''permission when exceeds will be narrowed down".

This rule, though not discussed generally, has in fact been in practice since the earliest days of Islam* and provides us with significant policy guidelines.

According to most of the fuqaha an indebted person is exempt from Zakat on his non apparent wealth (mal batin) to the extent of his liability of debt. Presently this exemption could be misused by a large number of wealthy businessmen and industrialists. In Pakistan the use of the above quoted counter-rule led the Zakat and Ushr ordinance 1980 to discriminate between different categories of debt and narrowed down the legal exemption.

The holy Prophet (peace be upon him) permitted betting on horses with the object of encouraging horse rearing which was the most important riding animal during Jihad. As horses are of lesser importance in modem warfare, the entire sport of racing involving stakes needs to be reviewed in the light of the counter-rule.

Indiscriminate sale of birth control devices leading to their misuse also recommends for application of the counter-rule.

The use of platinum jewellery by men which is much more expensive than the prohibited gold jewellery and of much more expensive dress than silken which is not permitted for men need to be reviewed on the same ground.

Similar is the case of practising a large number of financing techniques adopted by contemporary interest-free banks.

Techniques of joint trading could be expanded into a number of interest-free modes of financing by banks. But in case these modes are made into a device for ensuring a fixed return, it will be necessary to impose restrictions to prevent their misuse.

The holy Prophet (peace be upon him) has allowed the right of tilling the unclaimed barren land to the one who reclaims it.
The point to see is if the general licence to occupy in this way would not be misused by the resourceful persons.

The situations where the relaxations of the Sharia seem to have been surpassed to an embarassing extent are many and varied and need to be carefully examined by the jurists. Should the customary withdrawal of a daughter from her right to inheritance in
landed property be taken on its face value?

Should an orphan be deprived of all rights in the inheritance of a grand-father?

Should mineral wealth hidden deep beneath the land be treated as a right of the person who possesses that land for cultivation?

Should state land be unconditionally leased out to individuals for very long periods?

Should all the revocable contracts and irrevocable ones be retained as they are treated fiqh literature?

Should “spoils of war” now left by vanquished enemy in the battle field be distributed among fighters?*

These and such issues need to be resolved in the light of the rule “'permission when exceeds will be narrowed down”. The second counter-rule to relaxation lies in the maxim.** “The extent of necessities limits action thereunder”.

This maxim aims at restricting the scope of relaxation only to the extent and nature of necessity. One is not allowed to extend this relaxation to cover situations that are not really necessary. In consumption, for example, as stated above a person may be allowed to save his life by eating an unclean stuff, but this permission is restricted to the extent of eating a quantity that may save him from death but not eating to his fill.

Everybody has a right to dispose of his property in any lawful manner he chooses. As a general principle he cannot be deprived of this right. But under the rule of necessity government may freeze or seize the properties of a defaulter who fails to discharge government claims or personal or institutional debts, in order to adjust the claims with the defaulter’s frozen accounts or seized properties. But the maxim that “the extent of necessities limits action thereunder” binds a government to attach only as much property as is sufficient to adjust the claims, not more than that. It will be offensive to deprive the defaulter of all his fixed and transportable property or to stop him from exercising his normal business operations that exceed the extent of claims.

Another counter-rule that prevents the misuse of the permissibility or relaxation provides that *”What is lawful for a reason becomes invalid when such reason disappears”

The maxim is equally applicable to individuals as to society and government. Individuals may, sometimes, be compelled to carry on their living through a job that is not religiously clean. When they get an opportunity to join a clean profession it will not remain permissible for them to continue their unclean job.

There was a time when, in some regions scrupulous lenders were not willing to advance loans to traders unless they had an axe to grind. It was on account of this excuse that “Ulama” in those regions legalised bay` bi’! wafa’ (buy-back arrangement) so that the traders had not to suffer due to lack of funds. The situation has now changed. The largest and the most organised source of finance are banks which mobilise and allocate most of national savings. Credit policy is controlled and monitored by central bank keeping in view the overall public interest. This has discarded the refusal of scrupulous money lender for not financing the needy producer or trader. The central bank may impose controls to ensure supply of funds to all the priority sectors or neglected sectors on terms and conditions that are in consonance with the Islamic principles of
finance, on the one hand, and attractive to both the parties on the other. Thus the legality of bay ‘bi’l-wafa will no longer remain permissible.

On higher level a government has the authority to levy tax for meeting budgetary requirements for public welfare projects only when it is short of public resources. In cases such as compensation for earthquake victims, the justification would cease after rehabilitation work is completed. Special purpose taxes thus need to be spent exclusively for those purposes. Any infringement would amount to a breach of trust.As soon as the purpose is achieved, the permissibility of the tax would cease.