Necessity (darura) in Islamic Law: A study with special reference to the Harm Reduction Programme in Malaysia

Abstract

This study serves two aims, to shed light on the rule of darura in Islamic law and to examine the justification for the Harm Reduction Programme in Malaysia using the said rule. In an attempt to fathom the real understanding of this rule, I have employed two methods: a critical approach to the darura theoretical discussions and an analysis of darura cases presented in fiqhi treatises. The study demonstrates that the usuliyun have formulated a narrow scope of darura theory although the applications of the rule in fiqhi treatises suggest other ways in which the principle can be applied. The jurists tend to apply the rule in a much wider sense in the various fiqhi works, either in true and factual cases or in hypothetical ones. This research also finds that the modern jurists have expanded the application not only to protect the necessity of an individual person but to protect the necessity of the public at large. It can also be suggested that the rule of darura has provided measures derogating obligations; however, this must only be to the extent required by the exigencies of the situation. A rigorous understanding of this rule is crucial for the field of Islamic law in order to avoid any possible abuse. Based on the above understanding of darura, this study finally investigates whether darura can justify the Harm Reduction Programme in Malaysia. This programme has been promulgated to reduce HIV/AIDS cases by providing drug users with methadone, syringes and needles. The programme was assessed thoroughly using the legal requirements and preconditions of darura. Having examined the philosophy, its modus operandi and jurists' attitude towards drugs, the study concludes that this programme is justified from a shari`a perspective on the basis of necessity. However, strict precautions and regulations need to be continuously employed throughout this controlled programme to avoid any abuse which might impair its legality. The research also aims to enhance the public's understanding of the rule of darura and to improve the collaboration between Malaysian government and religious groups in minimising HIV/AIDS and drug cases in Malaysia.