Darūra
Darūra ( Arabic ضرورة, DMG ḍarūra , distress, distress, predicament ') is a principle of Islamic legal theory that is used in various contexts as a justification for non-compliance with Islamic legal norms. It has its formulaic expression in the famous Arabic legal rule aḍ-ḍarūrāt tubīḥ al-maḥẓūrāt (الضرورات تبيح المحظورات / 'Difficulties make forbidden things permitted, need knows no prohibition'), which appears for the first time in a collection of popular hadiths in the 15th century and was incorporated into the Ottoman Mecelle as Article 21 in the late 19th century .
Usually this principle is based on Sura 2: 173 in the Qur'anic context: “But if someone finds himself in a predicament without coveting something (forbidden) or committing a transgression, he is not to blame. God is merciful and ready to forgive. ”The exemption formulated here and in other verses of the Koran (e.g. Sura 6: 145) specifically for the consumption of unclean meat in the case of impending starvation is extended to other issues within the framework of the Darūra principle by Qiyās . Typical cases in which the Darūra principle is applied are the violation of the Islamic ban on alcohol to avert physical harm, for example drinking wine when there is a risk of suffocation due to swallowing, and the uttering of blasphemy under duress.
One of the earliest Islamic legal scholars to discuss the Darūra principle was the Syrian Hanbalit Ibn Qudama al-Maqdisī (d. 1223). He explained that a "permissive predicament" ( ḍarūra mubīḥa ) only existed in the case of a real, but not of an assumed danger. In this case, however, Darūra is a recognized fact ( amr muʿtabar ). A first monographic treatment of the principle was published in 1969 in the book "The Theory of Religious Law Darūra, Compared to Positive Law" ( Naẓarīyat aḍ-ḍarūra aš-šarʿīya muqārana maʿa 'l-qānūn al-waḍʿī ) by the Syrian legal scholar Wahba az- Zuḥailī (born 1932) experienced. Therein Darūra is presented as a theory "which covers all provisions of the law of revelation from which the permission of the forbidden and the omission of the required result." In principle, the principle should be applicable in all cases, but only if certain conditions are met must be checked individually. This includes, among other things, that the emergency situation must be acute and no other permitted means of averting the damage are available. Since the darūra criteria “can hardly be determined with the utmost precision”, according to Zuhailī, ultimately the inner trust and idschtihād of the person in a predicament must decide.
Since the 1980s, the Darūra principle has often been used in connection with questions of medical ethics , for example to justify organ transplants or abortions under religious law .
literature
- Y. Linant de Bellefonds: Art. “Ḍarūra” in The Encyclopaedia of Islam. New Edition Vol. II, pp. 163b-164a.
- Birgit Krawietz: "Darura in Modern Islamic Law: The Case of Organ Transplantation" in Robert Gleave (ed.): Islamic Law. Theory and Practice . London u. a. 1997. pp. 185-193.
- Mawil Izzi Dien: Islamic law from historical foundations to contemporary practice . Edinburgh, Edinburgh Univ. Press, 2004. pp. 82-94.
Individual evidence
- ↑ Shams ad-Dīn as-Saḫāwī: al-Maqāṣid al-ḥasana fī bayān kaṯīr min al-aḥādīṯ al-muštahara ʿala l-alsina . Hadith No. 643. The work is available online here: http://www.almeshkat.net/books/open.php?book=1050&cat=29#.UcftD5wQBic
- ↑ Cf. Linant de Bellefonds 163b.
- ↑ Already as-Saḫāwī in his commentary on Hadith No. 643.
- ↑ Quoted from Birgit Krawietz: Hierarchy of legal sources in traditional Sunni Islam . Berlin 2002. pp. 239f.
- ↑ Cf. Dien 83f.
- ↑ Quoted from Birgit Krawietz: Hierarchy of legal sources in traditional Sunni Islam . Berlin 2002. p. 232.
- ↑ See Krawietz 2002, 232.
- ↑ See Krawietz 1997.
- ↑ Cf. Muhammad ʿAlī al-Ḥāǧǧ: al-Iǧhāḍ baina l-islām wa-l-masīḥīya . Beirut: Dār al-Fikr 2005. pp. 76–79.