Topic: Maslahah Mursalah (Considerations of Public Interest)
– Literal: Maslahah Mursalah refers to benefit or interest that is not regulated by the Lawgiver and has no textual authority on its validity.
– Al Ghazali: Maslahah Mursalah consists of considerations that secure a benefit or prevent harm, while being harmonious with the objectives (maqasid) of the Shariah.
– Technical: Maslahah Mursalah is a consideration that is proper and harmonious to the objectives of the Lawgiver, secures a benefit or prevents harm, and has no indication of its validity or otherwise in the Shariah.
– Examples: Decision to issue currency, establish prisons, and impose tax (kharaj) on agricultural lands in conquered territories despite the lack of textual authority.
Maslahah Mursalah derives its validity from the norm that the basic purpose of legislation in Islam is to secure the welfare of the people by promoting their benefits or protecting them against harm. The word maslahah” cannot be enumerated or predicted in advance as it changes according to time and circumstance.
The majority of ulama consider Maslahah Mursalah a proper ground for legislation. When the maslahah is identified and the mujtahid does not find an explicit ruling in the nass, he must act in its pursuit by taking necessary steps to secure it. Therefore, it is justified to say that God’s purpose in revealing the Shariah is to promote man’s welfare and prevent corruption in the earth. The concept of Maslahah Mursalah does not apply to the rulings of the Prophet. When there is a Prophetic ruling in favor of a maslahah, it becomes part of the established law and is no longer considered Maslahah Mursalah. From a historical vantage, the notion of Maslahah Mursalah originates in the practice of the Companions.
Examples of Maslahah Mursalah:
– Caliph Bakr waged war on those who refused to pay the zakah.
The rule for murder provided in the texts is that one life can be taken for one life by way of retaliation. It is not clear whether a number of persons can be subjected to qisas when they participate in killing a single person. Caliph Umar decided that all of them should be put to death. This rule is said to be based on the “preservation of life”, which is a purpose of Islamic law. This is strengthened by the words of the AQ: “in retaliation there is life for you”. Caliph Umar is reported to have said (in this decision) that if all the people of Sana’a had conspired to kill a single person, he would put all of them to death.
Justification of MM: The main objection against the use of MM, in particular, and the concept of maslahah, in general, is that it is based upon the hikmah (wisdom) of the rule rather than on the illah. The jurists have been very cautious in the use of hukm for the determination of laws. The principle of maslahah is more flexible and is based on an interplay of general principles, and the maqasid are based on the hikmah underlying the various rules. Sometimes, it is advanced that it will be misused by ignorant people.
The legal system must ensure that its professionals observe proper methodology that meets the conditions imposed above. The principle is to be used mostly by judges of the Higher Courts of the country and by lawyers who assist these courts. It is not up to every person to employ legal reasoning. Proof (Hujjah) of MM: Surah Al Anbiya 107 states, We have sent you but a mercy for all creatures.” Surah Yunus 75 states, “O mankind, a direction has come to you from your Lord, it is a healing for the ailments in your hearts.” The message for these two phrases transcends all barriers that divide humanity. None must stand in the way of seeking mercy and beneficence to human beings. Surah Al Maidah 6 states, “God never intends to impose hardship upon people.” God also described that His purpose in the revelation of the religion of Islam is not a means of imposing hardship. Sunnah/Hadeeth states, “Harm is neither inflicted nor tolerated in Islam.” The Prophet did not choose but the easier of the two alternatives so long as it did not amount to a sin. Muslims are bound by their stipulations unless it be a condition which turns a haram into halal or a halal into haram. Based on these hadeeths, it seems to grant Muslims the liberty to pursue their benefits and to commit themselves to that effect provided that this does not amount to a violation of the explicit commands and prohibitions of the Syariah. Sunnah/Hadeeth states, “God loves to see that His concessions (rukhas) are observed in the same way that His strict laws (‘aza’im) are obeyed.” It is confirmed that no unnecessary rigor in the enforcement of the ahkam is recommended, and that Muslims should avail themselves of the flexibility and concessions that the Lawgiver has granted them and to utilize such in pursuit of the masalih. Imam Malik has given the following reasons for MM as a proof and basis of legislation: The Companions have validated it and have formulated the rules of Shariah on its basis. When the MM is compatible with the objectives of the Lawgiver or that it falls within the genus or category of what the lawgiver has expressly validated, it must be upheld. When MM is of the genus of the approved MM and it is not upheld, the likely result would be to inflict hardship on the people, which must be prevented. TYPES OF MM: 1. ESSENTIALS (DARURRIYAT) – 5 essential values (al dharuriyyat al khamsah) i.e. religion, life, intellect, lineage, and property – must not only be promoted but also be protected against any real or expected threat which undermines their safety. To uphold the faith would thus require observance of the prescribed forms of badat, whereas the safety of life and intellect is secured by obtaining lawful means of sustenance as well as the enforcement of penalties which the Shariah has provided so as to protect them against destruction and loss. 2. COMPLEMENTARY (HAJIYYAT) – the whole supplementary to the 5 essential values and they refer to interests whose neglect leads to hardship in the life of the community although not to its collapse. Thus in the area of ibadat, the concessions that the Shariah has granted to the sick and to the traveler not to observe the fast, and shorten the solat, are aimed at preventing hardship. 3. EMBELLISHMENTS (TAHSINIYYAT) – refers to interests whose realization leads to improvement and the attainment of that which is desirable. Thus the observance of cleanliness in personal appearance and ibadat, moral virtues, avoiding extravagance in consumption, and moderation in the enforcement of penalties fall within the scope of tahsiniyyat. CLASSIFICATIONS OF MASLAHAH: The scholars have divided maslahah into 3 categories: 1. Maslahah al Mu’tabarah 2. Maslaha al Mulgha 3. Maslahah Mursalah CONDITIONS OF MM
MM is employed when the jurists cannot find a rule for the case at hand through literal interpretation or strict analogy (qiyas) because there is no specific base (asl) from which they can extend the rule by analogy. In other words, individual or specific evidence does not control the law anymore. The case must now be settled by looking at all the texts collectively. This is achieved by referring to the purposes of Islamic law or the maqasid al syariah. The first thing that a jurist employing MM has to do is formulate a new principle that will control the problem being faced by them.
The new principle he has formulated must meet the following conditions:
- MM must be genuine (haqiqiyyah) – there must be a reasonable probability that the benefits of enacting a hukm in the pursuance of maslahah outweigh the harms that might accrue from it.
- MM must be general (kulliyah) in that it secures benefit, or prevents harm, to the people as a whole and not to a particular person or group of persons – it must contemplate a benefit to the largest possible number of people. The whole concept of maslahah derives its validity from the idea that it secures the welfare of the people at large.
- MM must not conflict with a principle or value which is upheld by the nass (AQ & Sunnah) or ijma’ – it has to make sure that the new principle he has formulated does not clash with a text or existing principles (nass) and propositions of Islamic law or attempt to alter the implication of a text.
- Maslahah must be rational (ma’qulah) and acceptable to the people of sound intellect. This means that the norm it promotes must be among the purposes of Islamic law recognized by the syariah.
- It must prevent or remove hardship from the people.