LEGAL MAXIMS AND OTHER GENRES OF LITERATURE 87

The hadith of lā ḍarar has also been used as the basic authority for legal maxims on the subject of necessity (ḍarūra). I refer here to only two, the first of which proclaims that “necessity makes the unlawful lawful” (al-ḍarūrāt tubīḥ al-maḥẓūrāt). It is on this basis that the jurists validate the demolition of an intervening house in order to prevent the spread of fire to adjacent buildings, just as they validate dumping of the cargo of an overloaded ship in order to prevent danger (or ḍarar) to the lives of its passengers. Another maxim on necessity declares that “necessity is measured in accordance with its true proportions” (al-ḍarūrāt tuqdaru bi-qadrihā). Thus, if the court orders the sale of the assets of a negligent debtor in order to pay his creditors, it must begin with the sale of his movable goods—if this would suffice to clear the debts—before ordering the sale of his real property.¹⁶

The maxim “hardship begets facility” (al-mashaqqatu tajlub al-taysīr) is, in turn, a rehash of the Qur’ānic āyāt: “God intends for you ease and He does not intend to put you in hardship” (2:185), and “God does not intend to inflict hardship on you” (5:6), a theme which also occurs in a number of hadiths. The jurists have utilised this evidence in support of the many concessions that are granted to the disabled and the sick in the sphere of religious duties, as well as civil transactions. With reference to the option of stipulation (khiyār al-sharṭ), for example, there is a hadith which validates such an option for three days, that is, if the buyer wishes to reserve for himself this amount of time before ratifying a sale. The jurists have then reasoned that this period may be extended to weeks, or even months, depending on the type of goods that are bought, and the need of the buyer, who may need a longer period for investigation. According to another, but still related, legal maxim “idhā ḍāq al-amru ittasa‘a—an opening must be found when matters become exceedingly difficult.” For example, a debtor who accedes to his obligation, but is unable to pay, must be given time, if this would enable him to clear his debt. The same logic would validate, on the other hand, killing a violent thief if a lesser threat or action is not likely to put a stop to his evil. The judge may likewise admit the best available witnesses, even if some doubt as to their uprightness (ʿadālah) persists, if this is deemed to facilitate justice in stressful situations. The maxim under review is also related to the