TOPIC : MASLAHAH MURSALAH (CONSIDERATIONS OF PUBLIC INTEREST) DEFINITION • Literal : benefit or interest – unrestricted public interest in the sense of not having been regulated by the Lawgiver & no textual authority can be found on its validity or otherwise. – Al Ghazali : – consists of considerations which secure a benefit or prevent a harm but are, in the meantime, harmonious with the objectives (maqasid) of the Shariah. Technical : a consideration which is proper & harmonious (wasf munasib mula’im) to the objectives of the Lawgiver, it secures a benefit or prevents a harm, & the Syariah provides no indication as to its validity or otherwise. • E. g . : Decision to issue currency , to establish prisons, & to impose tax (kharaj) on agricultural lands in the conquered territories despite the fact that no textual authority can be found in its favour. • derives its validity fr the norm that the basic purpose of legislation in Islam is to secure the welfare of the ppl by promoting their benefits or by protecting them against harm. The word “maslahah” – can neither be enumerated nor predicted in advance as they chg according to time & circumstance. • Majority of uelama : MM is a proper ground for legislation – when the maslahah is identified & the mujtahid does not find an explicit ruling in the nass, he must act in its pursuit by taking the necessary steps to secure it. – therefore it is justified by saying that God’s purpose in revealing the Syariah is to promote man’s welfare & to prevent corruption in the earth. The concept of MM does not apply to the rulings of the Prophet : When there is a Prophetic ruling in favour of a maslahah, it becomes part of the established law, hence no longer a MM. – from a historical vantage, the notion of MM originates in the practice of the Companions. This is not to say that the Prophet has not ruled in favour of maslahah, but merely to point out that as a principle of jurisprudence, MM does not apply to the rulings of Sunnah. EXAMPLES OF MM : ? Caliph Bakr also waged war on those who refused to pay the zakah, ?Order now
The rule for murder provided in the texts was that one life could be taken for one life by way of retaliation. It was not clear whether a number of persons could be subjected to qisas when they participated in killing in a single person. Caliph Umar decided that all of them shd 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 hv said (in this decision) that if all the ppl of Sana’a had conspired to kill a single person he wld 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 ethe illah. The jurists hv been very cautious in the use of hukm for the determination of laws. The principle of maslahah is more flexible and is bsed on an interplay of general principles and the maqasid are based on the hikmah underlying the various rules. Sometimes advanced is that it will be misused by ignorant ppl.
The response to this is that the legal system must ensure that its professionals observe the proper methodology that meets the conditions imposed above. Further, the principle is to be used mostly by the judges of the Higher Ctts of the country and by the lawyers who assist these ctts. It is not up to every person to employ legal reasoning. PROOF (HUJJAH) OF MM : ? Surah Al Anbiya’ : 107 “We hv sent you but a mercy for all creatures” ? Surah Yunus : 75 “O mankind, a direction has come to you from your Lord, it is a healing for the ailments in your hearts.. – the msg for these 2 phrases here transcends all barriers that divide the humanity, none must stand on the way of seeking mercy & beneficience to human beings. ? Surah Al Maidah : 6 “God never intends to impose hardship upon ppl” – God also described that His purpose in the revelation of religion of Islam is not a means of imposing hardship. ? Sunnah/Hadeeth : “harm is neither inflicted nor tolerated in Islam. ” ? Sunnah/Hadeeth : “The Prophet did not choose but the easier of the two alternatives so long as it did not amount to a sin. ? Sunnah/Hadeeth : “Muslims are bound by their stipulations unless it be a condition which turns a haram into halal or a halal into haram. ” – base on these hadeeths seems to grant muslims the liberty to pursue their benefits & to commit themselves to that effect provided that this does not amt to a violation of the explicit commands & prohibitions of the Syariah. ? Sunnah/Hadeeth : “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 rigour in the enforcement of the ahkam is recommended, & that the Muslims should avail themselves of the flexibility & concessions that the Lawgiver has granted them & to utilize such in pursuit of the masalih. • Imam Malik has given these following reasons for MM as a proof and basis of legislation : – The Companions has validated it & hv formulated the rules of Shariah on its basis. – When the MM is compatible with the objectives of the Law giver 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 & it is not upheld, the likely result would be to inflict hardship on the ppl, which must be prevented. TYPES OF MM 1. ESSENTIALS (DARURRIYAT) – 5 essential value (al dharuriyyat al khamsah)s i. e. religion, life, intellect, lineage & property – must not only be promoted but also be protected against any real or expected threat which undermine 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 & 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 & to the traveler not to observe the fast, & shorten the solat, are aimed a preventing hardship. . EMBELLISHMENTS (TAHSINIYYAT) – refers to interests who realization leads to improvement & the attainment of that which is desirable. Thus the observance of cleanliness in personal appearance & ibadat, moral virtues, avoiding extravagance in consumption & 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 nor can he extend the meaning through strict analogy (qiyas), because there is no specific base (asl) from he can extend the rule by analogy. In other words, individual or specific evidences do not control the law anymore. The case now has to 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 1st thing that a jurist employing MM has to do is to “ formulate a new principle that will control the problem being faced by him”.
The new principle he has formulated must meet the following conditions i. e. : 1. MM must be genuine (haqiqiyyah). – must be a reasonable probability that the benefits of enacting a hukm in the pursuance of maslahah outweighs the harms that might accrue fr it. 2. MM must be general (kulliyah) in that it secures benefit, or prevents harm, to the ppl as a whole & not to a particular person or group of persons – must contemplate a benefit to the largest possible number of ppl. – the whole concept of maslahah derives its validity fr the idea that it secures the welfare of the ppl at large. . MM is not conflict with a principle or value which is upheld by the nass (AQ & Sunnah) or ijma’. – 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. 4. Maslahah must be rational (ma’qulah) & acceptable to the ppl of sound intellect. This is in reality means that the norm it promotes must be among the purposed of Islamic law recognized by the syariah. 5. it must prevent or remove hardship fr the ppl.