Q. You have given a ruling that buying a house on mortgage in non-Muslim countries is permissible, but you provided no source of evidence. As you know, such a transaction involves the payment of interest which is a form of usury. You treated this as a necessity. Surely, this cannot be so. How can you compare a starving person who is allowed to eat forbidden things, such as pork, in order to preserve his life, and one who can rent a house, rather than buy it with a loan that pays interest? There is no emergency in this second situation; no question of life and death. Are you not yielding to the pressure of Muslims living in America and Europe who are really after improving their material situation in this life, rather than abiding by Islamic rules? Could you not advise them to try to pressurize Western governments or Western banks to provide some sort of transaction that can be acceptable under Islam? Alternatively, they could go to Islamic banks for an acceptable solution. If we are to allow what is forbidden, that is surely a grave error.
R.A. Bana
A. There are several points to make here. The first is that we do not try to legalize what God has made forbidden. Far be it from us to do so. This is a grave sin, and we pray to God that we never make such an error. We accept all that God has decreed, considering lawful only what He has made lawful and abiding by what He has prohibited.
Secondly, we in no way compared buying a house with a person reaching a degree of starvation that allows him to eat pig meat in order to preserve his life. We spoke of having a house as comparable to a necessity, but we did not suggest that there is a question of life and death. Scholars identify five areas which must be preserved for human life to progress. These are: self, mind, offspring, faith and property. Indeed, all divine and man-made laws recognize the need to ensure the protection of these five essentials.
Muslim scholars divide actions and practices that serve people’s interests into three categories: necessities, needs and improvements. Necessities are actions and practices that are essential to ensure the achievement and protection of those five purposes. Needs are those that are not absolutely necessary for the preservation of those five areas, but needed to remove difficulty and ensure comfort. Under this category of needs we may include the permissibility of hunting, renting and leasing. You may consider that if renting was not permitted, people would have had to own every thing they need, even temporarily. The third category includes things that are not needed to remove hardship or difficulty, but their observance promotes moral values, good manners, and well-being.
When we consider housing in human life, we may say that people can survive in caves, forests and tents. As long as they have some sort of protection against the elements, they can survive. So, where do we classify a house under the three categories? Well, it is better not to go into a detailed discussion on this point, but we may say that having some accommodation is a necessity, while ownership of such accommodation is a need. It is easy to explain why it is a need, considering that people may not always have sufficient income to rent, and as they grow old, they may not be able to work and have an income. If they do not have a house of their own, they may run into great difficulty.
Now, let us look at the possibility of buying a house on mortgage. I have stated in these columns more than once that it is permissible. But this is not a personal opinion. Some of the top scholars have given such a ruling. The late Sheikh Mustafa Al-Zarqa, who ranked among the top ten scholars of Fiqh in the 20th century, gives such a ruling. More recently, the European Fiqh Council, under the chairmanship of Sheikh Yusuf Al-Qaradawi, has given a similar ruling. The Council gives a dual basis for its ruling: the first is that house ownership is a necessity, and the Qur’an mentions the lifting of prohibition in case of necessity in five different verses, such as 6: 119 and 6: 145. It also makes clear the rule agreed by scholars that a need could be treated as a necessity under certain conditions. This is rule 31 in Majallat Al-Ahkam Al-Adliyyah which was a codification of Islamic law issued by the Ottoman Caliphate in 1293 AH, corresponding to 1876 CE. The other basis for the ruling, which is also the basis adopted by Sheikh Mustafa Al-Zarqa, is the view of the Hanafi school of Fiqh which allows Muslims to participate in transactions that may be prohibited under Islam, but allowed by the law of non-Muslim countries, provided that there is a real interest for the Muslim in such a transaction, and that no shady dealing or deception is involved.
I have cited these cases to show that this is an acceptable ruling by an increasing number of scholars. I am not particularly happy with the second basis of the ruling by the Council although it is the view of the Hanafi school of Fiqh, which is widely acceptable as a school that Muslims may follow. However, I find that the mortgage transaction differs in substance with a usurious loan. Here the mortgager, who buys the house, receives much more than the amount of money the bank advances to him. This is the full ownership of the house which ensures for him any profit made on the house, should he want to sell it at any time during the loan period.
Finally, I object to the reader’s comments about the behaviour of Muslims in the USA or other places. He assigns to them motives which may or may not be true. He is better advised not to judge people’s motives, as he cannot prove them. Let motives by judged by God alone.
