An Applied fundamentalist Study on the rule "Need Supersede Necessity"

(Waleed Ali Husin)

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Abstract

The science of jurisprudence rules is a major field of interest for scholars. However, some of these rules are still in need of further study. One of the rules that is extensively used and misused recently is the rule "Need supersede Necessity". Some scholars widen their classification of a need, and judge any case as a need to apply this rule, without careful examination of the rule's controls and conditions. This research examined the rule that is related to facilitation, easing, and excluding hardship for legally competent. The work aims to indicate the meaning and forms of the rule to clarify the differences between need and necessity, the types of needs that can be treated as necessity, explaining the rule disputes in addition to its evidences, conditions, and jurisprudence applications including the type and conditioning of the need. The work concluded that this role is acceptable because of several evidences that classified a need with hardship a necessity since the original purpose is to exclude hardship for legally competent. This is appropriate when the need is determined properly by experts, as in the case of patient needs that can be judged according to a specialized fair doctor. Key Words: Abdallah bin Bayyah, Al-Juwayni, Al-Shatiby, Legally prohibited.
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