Abstract

In the fatwas given today related to whether individual or social life, the area of jawāz either has been very wide or very narrow. Those, who feature the behavior making prohibited things lawful, have nearly defined even necessity within the pragmatism on the basis of need and they keep the area in question very wide. On the other hand, those who confine the evidence of maṣlaḥa to a methodological principle, have nearly disregarded needs in solving individual and social problems. Whereas, in the fiqh, the needs have been categorized as necessary/ḍarūrī, human want/ḥājī and making beautiful/taḥsīnī, and many principles have been constructed for taking stock of them. One of the principles is the lex of “Need/al-Ḥāje, general or particular, is dealt with as to meet necessity/al-Ḍarūra.” When it is determined how this lex has come out since the first period and its conditions in the context of implementation are determined, it will be come out that necessary cannot be reduced to need. In the same way, it will be come out that the maṣlaḥa is not an evidence disconnected with life. So, in the article, we will discuss the concepts of necessary and need. Then, we will show what the conditions to be considered in implementation of this lex are, what its base is in the sharia, how it has come out since the first period, and how it has been used in actual issues of the fiqh as well as in a specific example. Thus, with this study, we purpose to contribute to the solution of the actual issues of the fiqh. SUMMARY The notions of need and necessity (ḍarūra, ḥāje) which are of four notions cited in the lex were individually examined and the differences between them were explained. The notions of general or particular (umūmī, khuṣūṣī), because of their using as adjective of the notion of ḥāje, were explained in the context of it. In the literature, the conception of ḥāje was used in the meaning both for all needs containing ḍarūra and just for needs apart from ḍarūra. A similar situation applies to the conception of ḍarūra. Ḍarūra having two descriptions was used in the meaning of ḥāje at times. This closure in using has caused the idea that both concepts have the same notion. In fact, from this point of view, there are the implications about that the lex is unnecessary. In this study, it is purposed that the mentioned idea and implications are wrong. As a requirement, the differences between the mentioned concepts were also examined under a separate title. As for the notions of umūmī and khuṣūṣī, the scope of umūmī and khuṣūṣī ḥāje were not transparently defined and were just explained through examples in the classical period. In the context of ḥāje, the descriptions about the scope of these notions have been done after the lex took its final shape and became popular in this shape. According to these descriptions, umūmī ḥāje is the needs regarding all community. Khuṣūṣī ḥāje is the needs regarding a certain group in the community. There are interpretations as well about that individual needs must be dealt with in the scope of khuṣūṣī ḥāje. This study has same opinion. Taking into consideration of the historical development of the lex, this situation has been more clearly understood. Taking into consideration of the historical development of the lex, it is seen that the first person to make the lex a current issue is Juweynī (d. 1085). Juweynī mentioned the lex in different shapes. These combine in the point of umūmī ḥāje: “Umūmī ḥāje is dealt with as khuṣūṣī ḍarūra.” Juweynī not mentioning the notion of khuṣūṣī ḥāje in the lex shows that there is the differentiation between umūmī and khuṣūṣī ḥāje in his mind. Juweynī has a clear attitude in umūmī ḥāje while is hesitant in khuṣūṣī ḥāje. Another point which he is clear is that the needs dealt with as ḍarūra is not pure advantage and relaxation and it must have some conditions. Likewise, Gazzalī (d. 1111) and ‘Izz b. ʿAbd al-salām (d. 1262) continued the clear attitude of him. Both asserted some conditions about ḥāje dealt with as ḍarūra. But both did not mention any notation to imply these conditions in the lex. However, Ibn al-Wakīl (d. 1317) seems to want to show all ḥāje not to be dealt with as ḍarūra by adding the notation of in some situation: “Umūmī ḥāje is dealt with as ḍarūra in some situation.” In the historical development, it is seen that the first person to mention the notion of “khuṣūṣī ḥāje” in a lex is Zarkashī (d. 1392). But he mentioned this notion in another lex not in the lex in question. It is claimed that the addition of “khuṣūṣī ḥāje” to the lex was done in time of Ibn al-Wakīl or before and Zarkashī divided the lex in two as umūmī ḥāje and khuṣūṣī ḥāje. But this study proves for the mentioned claims to be unsuitable the historical development. Because, the first person to mention the notions both of umūmī ḥāje and khuṣūṣī ḥāje in one lex is Suyūtī (d. 1505): “Ḥāje, umūmī or khuṣūsī, is dealt with as to meet ḍarūra.” The lex has been fixed and become popular as it is. After this, especially in the recent period, the clear definitions have started to be done regarding what scope the notions of umūmī and khuṣūsī ḥāje in question in the lex is and the conditions about ḥāje have been dwelled on. In this study, the conditions in question have been treated under four items. In this study, this conditions have been analyzed with regard to functionality of the lex. It has been determined that the idea claimed about that ḥāje must not oppose to a special base, in the context of the first conditions especially, will cancel the functionality of the lex. The current use of the lex, because of the study’s boundaries, has been dealt with over a specific example topic. The issue of being a resident has been preferred as an example topic. Though there is an alliance about having a residence as a need, there is a conflict about the buying a residence by bank credit. While some have not allowed this by claiming that credit is against to a special base, some have allowed it on the basis of this lex. According to the second group, when its conditions are met, the buying a residence by credit is permissible. Because, residence is among essential needs. In this study, it is stated that the preferred opinion is this. However, by taking into account the spirit of sharia it is expressed that every need for having a residence cannot be dealt with as necessity. It has been emphasized that instead of accepting everything as a need dictated especially by the consumerism that elevates human desires to an uncontrollable level, identifying a suitable need for our own values is important. This study deals with the lex of “Need, general or particular, is dealt with as to meet necessity” used in the fatwās today. The study determining the historical development and break points of the lex and the conditions argued about it examines daily use of it on the basis of a current example. So the study purposes to prove how the lex must come out in solving of the other problems. The study is of important to determine the break points of the lex in its historical development. Ḥāje must be appropriate to a base in the sharia. Ḥāje must contain a hardship over ordinary hardship. Ḥāje must not be possible to eliminate by a legitimate way. Ḥāje must be realized by conclusive evidence or near it. In this study, this conditions have been analyzed with regard to functionality of the lex. It has been determined that the idea claimed about that ḥāje must not oppose to a special base, in the context of the first conditions especially, will cancel the functionality of the lex. The current use of the lex, because of the study’s boundaries, has been dealt with over a specific example topic. The issue of being a resident has been preferred as an example topic. Though there is an alliance about having a residence as a need, there is a conflict about the buying a residence by bank credit. While some have not allowed this by claiming that credit is against to a special base, some have allowed it on the basis of this lex. According to the second group, when its conditions are met, the buying a residence by credit is permissible. Because, residence is among essential needs. In this study, it is stated that the preferred opinion is this. However, by taking into account the spirit of sharia it is expressed that every need for having a residence cannot be dealt with as necessity. It has been emphasized that instead of accepting everything as a need dictated especially by the consumerism that elevates human desires to an uncontrollable level, identifying a suitable need for our own values is important