The Historical Development of the Theory of Necessity: A Fundamental and Applied Study
Prof. Iqbal Abdul Aziz Al Mutawa
Professor and Head of Comparative
Jurisprudence and Islamic Studies Department
Kuwait International Law School
This study aims to shed light on the theory of necessity, and to monitor the stages that have developed in Islamic jurisprudence since the era of revelation, until its stability in our time, a comprehensive theory that addresses all other emergency and exceptional circumstances, public and private, as well as the development of this theory in law. The study did not neglect the statement of objective controls in jurisprudence and law that would put the application of the theory of necessity on the right track, away from exploitation or abuse of its implementation. The study also included two models of applications, one in the constitutional system, and the second in precautionary measures to confront the Corona pandemic. The study relied on the descriptive, analytical, and comparative approach, given the nature of the subject and its jurisprudential and legal controls.
The study concluded with several results, the most important of which are: that the theory of necessity finds an original basis in Islamic jurisprudence derived from the tolerance, flexibility, and humanity of Islamic legislation, which allows the development of Ijtihad and providing creative solutions to various social problems. Great attention was accorded to it, and regulations, general provisions, and flexible and renewable controls were put in place for it. The study recommended legislators, jurists, and researchers in the Arab and Islamic worlds to conduct further studies to develop practical applications of the theory of necessity in various fields, by focusing on the comparative study between Sharia and law.
Keywords: precautionary measures, emergency conditions, jurisprudence, law, constitutional system, Corona pandemic.