There is a general concept similarity in what constitute a defence of necessity in English and Islamic legal systems. In both legal systems, the individual committing an offence has to be driven by a circumstance of necessity. Duress of circumstance in English law or Ikrah in Islamic law also falls under this category of law.
Although English law has over the years been reluctant to accept and apply it as a defence until recently, the courts are ready to accept it as a defence of some offences in criminal law.
Duration and the limit of how far an individual can go in order to eliminate the circumstance is one of importance and the type of the offence involved is very crucial when it comes to accept the defence of necessity. Therefore a mere circumstance of necessity would not constitute the defence.
The defendant must stop committing the offence as soon as s/he reasonably can as duress of circumstances cannot excuse the commission of an offence after the time when the threat has ceased: R v Pommell. I will demonstrate below how this also applies in Islamic law but it is worth remembering that if the court is satisfied an acquittal is the only outcome. And as in Islamic law no sin/offence is said to be committed under necessity.
I think the main reason is that for someone to have sufficient motive and intention to commit an offence or break the law all the circumstances to it must be under his control not faulting other operatives that led him to lose his control to do what he did.
More recently the courts have begun to show a willingness to allow the defence of necessity, or duress of circumstances as some judges have described it, where there is a fear of death or serious bodily injury.
The three principles of the defence and the two-stage test were explained by the Court of Appeal in R v Martin (1988).
The word necessity implies a situation where having explored all the available options one would not do without having to commit the alleged crime. This principle is a general defence in English law in certain offences and the leading case is R v Dudley & Stephens (1884), where two shipwrecked sailors killed and ate the cabin boy. They were convicted of murder. This case was affirmed by the House of Lords in R v Howe (a case on duress by threats) and until recently it was commonly thought that a general defence of necessity did not exist in English law.
In Islamic law, necessity arises where an individual is forced by circumstances to have done what he did. Necessity or Dharurah as it is called in Arabic is governed by the Quran and the Sunnat and their application has been an extensive area where Jurists of the four schools of Islamic Jurisprudence have differed on what really constitute a defence of necessity. This is clearly seen in their various books of Islamic Jurisprudence belonging to these schools; I will not attempt to discuss them individually but will suffice to flag up two or three correct opinion on the subject.
There is a leading and principle maxim on the law of necessity in Shariah which has various minor branches protruding from it. It has a general application and accepted in shariah law on issues such as Jinayaat (crimes), muaamalat (transactions) and other religious aspects observed by individual such as consuming wine for medical purposes when advised to do so by physicians or doctors.
Examples of offences under this category; eating anything from animals slaughtered not in the name of Almighty as prescribed in the Quran (haraam meat), quenching thirst with wine and denouncing Allah under duress of circumstances.
The maxim of “Necessity makes things that are prohibited by the law not prohibited” is sourced from the verse in the Quran 5:3, “…….but as for him who is forced by severe hunger with no inclination to sin (such can eat these above mentioned meats) then surely, Allah is Oft-forgiving, most merciful”.
It is also worth mentioning that necessity in Islamic law includes Dharurat, haajat, makhmaswat and all these names are used in the Quran and sunnat to imply necessity.
Another maxim emanating as a branch from the leading maxim above is that “need is of the same category as necessity”. It illustrates that there may be a difference between “necessity” and “need” but dire need may be of the same category as necessity.
Consequently, need may be a defence and generally accepted in the Islamic courts as in the examples above.
Muslims are not allowed to eat pork or any extracts from it but they can do so in time of need/haajat such as the time of starvation and famine where food is scarce. The principle is that it has to be done without inclinations to commit a sin.
Necessity works to suspend the law at the time the alleged sin is committed. A typical example in Islamic law among other events is that of a man who was caught stealing during the reign of Omar Bin Alkhtwaab, the second caliph. He was set free when he claimed a defence of necessity to have driven him to what he did and because at the time there was rampant food shortage in the country.
Of recent, scholars have extended this law to transactions such as mortgages and loans where in conventional banks no credit agreement comes without a requirement of paying interest on them including credit cards. Riba or usury/interest is not permitted in Islam and those who take and pay interest are considered to have waged war against the Almighty God and usury is one of the greatest sins in Islam.
The law of necessity will only apply under those circumstances if all other means of purchasing a property islamically i.e. without interest have been exhausted and there is a dire need of that property. Besides, there has to be greater harm in order to use this defence to the well being of the family and that it is very expensive to rent properties in the country.
I don’t really see how a person who owns a property would use this kind of defence to buy a second home as his/her need will be out of question in this case.
In the law of necessity there is also a requirement of directness and immediacy which was explained by the Court of Appeal in: R v Cole. At the defendant’s trial for robbing two building societies, he pleaded that he had done so because of his inability to repay money lenders who had threatened him, his girlfriend and child. The Court of Appeal held that the defence of duress of circumstances was not available.
For the defendant to rely on the defence of duress of circumstances there would have to be a greater degree of directness and immediacy between the danger to the defendant or others and the offence charged. What was required was evidence that the commission of the offence had been a spontaneous reaction to the prospect of death or serious injury.
Islamic law on Immediacy, the requirement is that whatever is allowed has to be measured according to the need.
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