The Islamic Utopia

وَفِي السَّمَاءِ رِزْقُكُمْ وَمَا تُوعَدُون “And in heaven is [the source of] your sustenance [on earth] and [of] all that you are promised [for your life after death]” (51:22) 

This page came from our following note, because of which we thought the subject needed its own page to present it properly; 1278) From Our Wilayah: Artificial Intelligence Is Philosophy; Science is when you build it, Philosophy is what you say when you don’t know the science. You can only build machines that mimic man, you can’t improve on his qualities or you will build something unbalanced and there are plenty of unbalanced people in the world to take examples from. Quick to calculate = fast to judgement, reality takes time and the best balance for judgment is with Man that is why He is on top, try teaching an AI wisdom. Some advice, don’t leave computer nerds in charge of morality questions, I have seen what they have come up with in regards to driver less cars, they are idiots, primarily because they are not qualified to ask such questions and answer them, yet they have not even seen that much and gone ahead with writing the rules for things like who to kill and who to save, the last people you want in charge of AI are computer people. Ask one of our Islamic scholars to teach you how we advanced the principles of legal thought in regards to Public Interest (Al Maslaha al Mursala), we are the most advanced people in regard to it because we began the field long before Europe even went into the Dark ages, Al Ghazali (d.1111) and Shatibi were its height, the American legal system takes from us verbatim, their methods/rhetoric are entirely from us, we taught them what to say and were to look. Islamic Society was a Utopia precisely because we defined the laws of public interest and this was part of public discourse through out our history. “[This is] the truth from thy Sustainer; be not, then, among the doubters”. الْحَقُّ مِن رَّبِّكَ فَلَا تَكُن مِّنَ الْمُمْتَرِين

The following is taken from M.H Kamali’s Principles of Islamic Jurisprudence, he isn’t the best scholar but this is all we have in English. Imam Al Ghazali (q) said to us regarding him, “If it doesn’t have the spirituality of our speech, then it isn’t our speech”, Kamali is not someone liked by Rasul Allah (saws).

Chapter Thirteen: Maslahah Mursalah (Considerations of Public Interest)

Literally, maslahah means ‘benefit’ or `interest’. When it is qualified as maslahah mursalah, however, it refers to unrestricted public interest in the sense of its not having been regulated by the Law giver insofar as no textual authority can be found on its validity or otherwise. [1. Khallaf, ‘Ilm, p. 84; Badran Usul, p. 209.] It is synonymous with istislah, and is occasionally referred to as maslahah mutlaqah on account of its being undefined by the established rules of the Shari’ah. For al-Ghazali, maslahah consists of considerations which secure a benefit or prevent a harm but which are, simultaneously, harmonious with the objectives (maqasid) of the Shari’ah. These objectives, the same author adds, consist of protecting the five `essential values’, namely religion, life, intellect, lineage and property.

Any measure which secures these values falls within the scope of maslahah, and anything which violates them is mafsadah (`evil’), and preventing the latter is also maslahah. [2. Ghazali, Mustasfa, I, 139-140.] More technically, maslahah mursalah is defined as a consideration which is proper and harmonious (wasf munasib mula’im) with the objectives of the Lawgiver; it secures a benefit or prevents a harm; and the Shari’ah provides no indication as to its validity or otherwise. [3. Badran, Usul, p. 210; Sabuni, Madkhal, p. 131.] The Companions, for example, decided to issue currency, to establish prisons, and to impose tax (kharaj) on agricultural lands in the conquered territories despite the fact that no textual authority could be found in favour of this. [4. Khallaf, ‘Ilm, p. 84.] The ulema are in agreement that istislah is not a proof in respect of devotional matters (`ibadat) and the specific injunctions of the Shari’ah (muqaddarat). Thus the nusus regarding the prescribed penalties (hudud) and penances (kaffarat), the fixed entitlements in inheritance (fara’id), the specified periods of `iddah which the divorced women must observe, and such other ahkam which are clear and decisive fall outside the scope of istislah. Since the precise values and causes of `ibadat cannot be ascertained by the human intellect, ijtihad, be it in the form of istislah, jurist, preference (istihsan) or qiyas, does not apply to them. Furthermore, with regard to ‘ibadat and other clear injunctions, the believer is duty-bound to follow them as they are. But outside these areas, the majority of ulema have validated reliance on istislah as a proof of Shari’ah in its own right. [5. Badran, Usul, p. 210; Sabuni, Madkhal, p. 134.]

Istislah derives its validity from the norm that the basic purpose of legislation (tashri`) in Islam is to secure the welfare of the people by promoting their benefit or by protecting them against harm. The ways and means which bring benefit to the people are virtually endless. The masalih (pl. of maslahah), in other words, can neither be enumerated nor predicted in advance as they change according to time and circumstance. [6. Shatibi, Muwafaqat, II, 2-3; Sabuni, Madkhal, p. 134.] To enact a law may be beneficial at one time and harmful at another; and even at one and the same time, it may be beneficial under certain conditions, but prove to be harmful in other circumstances. The ruler and the mujtahid must therefore be able to act in pursuit of the masalih as and when these present themselves. [7. Khallaf, ‘Ilm, p. 84; Badran, Usul, p.211.]

The majority of ulema maintain that istislah is a proper ground for legislation. When the maslahah is identified and the mujtahid does not find an explicit ruling in the nusus, he must act in its pursuit by taking the necessary steps to secure it. This is justified by saying that God’s purpose in revealing the Shari’ah is to promote man’s welfare and to prevent corruption in the earth. This is, as al-Shatibi points out, the purport of the Qur’anic ayah in Sura al-Anbiya’ (21:107) where the purpose of the Prophethood of Muhammad is described in the following terms: `We have not sent you but as a mercy for all creatures.’ In another passage, the Qur’an describes itself, saying: `O mankind, a direction has come to you from your Lord, a healing for the ailments in your hearts […]’ (Yunus, 10:75). The message here transcends all barriers that divide humanity; none must stand in the way of seeking mercy and beneficence for human beings. Elsewhere, God describes His purpose in the revelation of religion, saying that it is not within His intentions to make religion a means of imposing hardship (al-Hajj, 22:78). This is confirmed elsewhere in sura al-Ma’idah (5:6) where we read, in more general terms, that `God never intends to impose hardship upon people.’ [8. Cf. Shatibi, Muwafaqat, II, 3; Mustafa Zayd, Maslahah, p. 25.]

These are some of the Qur’anic objectives which grasp the essence of maslahah; they are permanent in character and would be frustrated if they were to be subjected to the kind of restrictions that the opponents of maslahah have proposed. We shall discuss the views of the opponents of maslahah in fuller detail; suffice it here to point out that the argument they have advanced amounts to a proposition that the general objectives of the Qur’an can only be implemented, in regard to particular cases, if there is another nass available in their support. This would seem to amount to an unwarranted restriction on the general objectives of the Lawgiver as these are expounded in the Qur’an.

The ulema have quoted a number of ahadith which authorise acting upon maslahah, although none is in the nature of a clear nass on the subject. Particular attention is given, in this context, to the Hadith which provides that `No harm shall be inflicted or reciprocated to Islam’. [9. Ibn Majah, Sunan, Hadith no 2340.]

The substance of this Hadith is upheld in a number of other ahadith, and it is argued that this Hadith encompasses the essence of maslahah in all of its varieties. [10. Khallaf, `Ilm, p.90; Abu Zahrah, Usul, p. 222.] Najm alDin al-Tufi, a Hanbali jurist (d. 716 A.H.), has gone so far as to maintain, as we shall further elaborate, that this Hadith provides a decisive nass on istislah. The widow of the Prophet, A’ishah, is reported to have said that “the Prophet only chose the easier of two alternatives, so long as it did not amount to a sin’. [11. Muslim, Sahih Muslim, p.412, Hadith no. 1546.]

According to another Hadith, the prophet is reported to have said that ‘Muslims are bound by their stipulations unless it be a condition which turns a haram into halal or a halal into a haram.’ [12. Abu Dawud, Sunan  ( Hasan’s trans.), III, 1020, Hadith no 3587.]

This would seem to be granting 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 Shari’ah. In yet another Hadith, the Prophet is quoted to have said: ‘God loves to see that His concessions (rukhas) are observed, just as He loves to see that His strict laws ( aza’im) are observed.’ [13. Ibn al-Qayyim, I’lam, II, 242; Mustafa Zayd, Maslahah, p. 120.] ‘this would confirm the doctrine that no unnecessary rigour in the enforcement of the ahkam is recommended, and that the Muslims should avail themselves of the flexibility and concessions that the Lawgiver has granted them and utilise them in pursuit of their masalih. The rigorous approach that the Zahiri ulema have taken in regard to maslahah, as will later be discussed, tends to oppose the purport of this Hadith.

Technically, however, the concept of maslahah mursalah 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, and hence no longer a maslahah mursalah. Historically, the notion of maslahah mursalah originated in the practice of the Companions. This is, of course, not to say that the Prophet did not rule in favour of maslahah, but merely to point out that as a principle of jurisprudence, maslahah mursalah does not apply to the rulings of the Sunnah.

The practice of the Companions, the Successors and the leading mujtahidun of the past tends to suggest that they enacted laws and took measures in pursuance of maslahah despite the lack of textual authority to validate it. The Caliph Abu Bakr, for example, collected and compiled the scattered records of the Qur’an in a single volume; he also waged war on those who refused to pay the zakah; and he nominated `Umar to succeed him. [14. Shatibi, I`tisam, II, 287; Khallaf, `Ilm, p.86.] Similarly, `Umar b. al-Khattab held his officials accountable for the wealth they had accumulated in abuse of public office and expropriated such wealth. He also poured away milk to which water had been added as a punishment to deter dishonesty in trade. Furthermore, `Umar b. al-Khattab suspended the execution of the prescribed punishment for theft in a year of famine, and approved of the views of the Companions to execute a group of criminals for the murder of one person. [15. Ibn al-Qayyim, I`lam, I, 185; Abu Zahrah, Usul, pp. 222-223; Mustafa Zayd, Maslahah, p. 52.] These decisions were taken despite the clear ruling of the Qur’an concerning retaliation (qisas), which is `life for life’ and the Qur’anic text on the amputation of the hand, which is not qualified in any way whatsoever. But the Caliph Umar’s decision concerning qisas was based on the rationale that the lives of the people would be exposed to aggression if participants in murder were exempted from qisas.

Public interest thus dictated the application of qisas for all who took part in murdering a single individual. Furthermore, the third Caliph, `Uthman, distributed the authenticated Qur’an and destroyed all the variant versions of the text. He also validated the right to inheritance of a woman whose husband had divorced her in order to be disinherited. The fourth Caliph, `Ali, is also on record as having held craftsmen and traders responsible for the loss of goods that were placed in then custody. this he considered to be for the maslahah of the people so that traders should take greater care in safeguarding people’s property. [16. Shatibi, I’tisam, II, 292, 302; Ibn al-Qayyim, I`lam, I, 182; Abu Zahrah, Usul, p. 223.] In a similar vein, the ulema of the various schools have validated the interdiction of the ignorant physician, the clowning mufti, and the bankrupt trickster, on grounds of preventing harm to the people. The Malikis have also authorised detention and ta`zir for want of evidence of a person who is accused of a crime. [17. Shatibi, I`tisam, II, 293. Khallaf, `Ilm, p.86, Abu Zahrah, Usul, p. 223.] In all these instances, the ulema have aimed at securing the maslahah mursalah by following a Shari’ah-oriented policy (siyasah shar’iyyah), which is largely concurrent with the dictates of maslahah. As Ibn al-Qayyim has observed, ‘siyasah shar’iyyah comprises all measures that bring the people close to well-being (salah) and move them further away from corruption (fasad), even if no authority is found for them in divine revelation and the Sunnah of the Prophet.’ [18. Ibn al-Qayyim, Turuq, p.16.]

The main support for istislah as a proof and basis of legislation (tashri) comes from Imam Malik, who has given the following reasons in its favour:

1. The Companions have validated it and have formulated the rules of Shari’ah on its basis.

2. When the maslahah is compatible with the objectives of the Lawgiver (maqasid al-shari`) or falls within the genus or category of what the Lawgiver has expressly validated, it must be upheld. For neglecting it under such circumstances is tantamount to neglecting the objectives of the Lawgiver, which is to be avoided. Hence maslahah as such is a norm of the Shari’ah in its own right; it is by no means extraneous to the Shari`ah but an integral pair of it.

3. When maslahah is of the genus of the approved masalih and is not upheld, the likely result would be to inflict hardship on the people, which must be prevented. [19. Shatibi, I`tisam, II, 282-287; Abu Zahrah, Usul, p. 223.]

Types of Maslahah

The masalih in general are divided into three types, namely, the ‘essentials’ (daruriyyat), the ‘complementary’ (hajiyyat), and the `embellishments’ (tahsiniyyat). The Shari’ah in all of its parts aims at the realisation of one or the other of these masalih. The `essential’ masalih are those on which the lives of people depend, and whose neglect leads to total disruption and chaos. They consist of the five essential values (al-daruriyyat al-khamsah) namely religion, life, intellect, lineage and property. These must not only be promoted but also protected against any real or unexpected threat which undermines their safety. To uphold the faith would thus require observance of the prescribed forms of ‘ibadat, whereas the safety of life and intellect is secured by obtaining lawful means of sustenance as well as the enforcement of penalties which the Shari’ah has provided so as to protect them against destruction and loss. [20. Shatibi, Muwafaqat, II, 3-5; Badran, Usul, p. 208.]

The hajiyyat are on the whole supplementary to the five essential values, and refer to interests whose neglect leads to hardship in the life of the community although not to its collapse. Thus in the area of a ‘ibadat the concessions (rukhas) that the Shari`ah has granted to the sick and to the traveler, permitting them not to observe the fast, and to shorten the salah, are aimed at preventing hardship. Similarly, the basic permissibility (‘ibadah) regarding the enjoyment of victuals and hunting is complementary to the main objectives of protecting life and intellect. [21. Shatibi, Muwafaqat, II, 5; Mustafa Zayd, Maslahah, pp.54-55.]

The `embellishments’ (tahsiniyyat, also known as karahiyyah) denote interests whose realisation lead 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.

It will be noted that the unrestricted maslahah does not represent a specific category of its own in the foregoing classification, for the obvious reason that it could fall into any of the three types of masalih. Should it be the case that the realisation of maslahah mursalah is sine qua non to an essential maslahah, then the former becomes a part of the latter. Likewise, if maslahah mursalah happens to be a means to attaining one of the second classes of masalih, then it would itself fall into that category, and so on. Furthermore, we may briefly add here the point which al-Shatibi has discussed at some length, that the masalih are all relative (nibs, deaf), and as such, all the varieties of maslahah, including the essential masalih, partake in a measure of hardship and even mafsadah. Since there is no absolute maslahah as such, the determination of value in any type of maslahah is based on the preponderance of benefit that accrues from it, provided that the benefit in question is in harmony with the objectives of the Lawgiver. [22. Shatibi, Muwafaqat, II, 27ff.]

From the viewpoint of the availability or otherwise of a textual authority in its favour, maslahah is farther divided into three types. First, there is maslahah which the Lawgiver has expressly upheld and enacted a law for its realisation. This is called al-maslahah al-mu’tabarah, or accredited maslahah, such as protecting life by enacting the law of retaliation (qisas), or defending the right of ownership by penalising the thief, or protecting the dignity and honour of the individual by penalising adultery and false accusation. The Lawgiver has, in other words, upheld that each of these offences constitute a proper ground (wasf munasib) for the punishment in question. The validity of maslahah in these cases is definitive and no longer open to debate. The ulema are in agreement that promoting and protecting such values constitutes a proper ground for legislation. The fact that the Lawgiver has upheld them is tantamount to His permission and approval of all measures, including legislation, that aim at their realisation. [23. Khallaf, ‘Ilm, p. 84; Badran, Usul, pp. 209-10.]

But the masalih that have been validated after the divine revelation came to an end fall under the second class, namely the maslahah mursalah. Although this too consists of a proper attribute (wasf munasib) to justify the necessary legislation, but since the Lawgiver has neither upheld nor nullified it, it constitutes maslahah of the second rank. For example, in recent times, the maslahah which prompted legislation in many Muslim countries providing that the claim of marriage, or of ownership in real property, can only be proved by means of an official document has not been explicitly validated by the Shari’ah. The law on these points has thus upheld the unrestricted maslahah; more specifically it is designed to prevent a mafsadah, which is the prevalence of perjury (shahadah al-zur) in the proof of these claims. [24. Khallaf, ‘Ilm, p. 85; Badran, Usul, p. 215.]

The third variety of maslahah is the discredited maslahah, or maslahah mulgha, which the Lawgiver has nullified either explicitly or by an indication that could be found in the Shari’ah. The ulema are in agreement that legislation in the pursuance of such interests is invalid and no judicial decree may be issued in their favour. An example of this would be an attempt to give the son and the daughter an equal share in inheritance on the assumption that this will secure a public interest. But since there is a clear nass in the Qur’an (al-Nisa’, 4:11) which assigns to the son double the portion of the daughter, the apparent maslahah in this case is clearly nullified (mulgha).[25. Badran, Usul, p. 209.]

To summarize: when the Shari’ah provides an indication, whether direct or implicit, on the validity of a maslahah, it falls under the accredited masalih. The opposite of this is maslahah mulgha, which is overruled by a similar indication in the sources. The unrestricted maslahah applies to all other cases which are neither validated nor nullified by the Shari’ah.

Conditions (Shurut) of Maslahah Mursalah

The following conditions must be fulfilled in order to validate reliance on maslahah mursalah. These conditions are designed so as to ensure that maslahah does not become an instrument of arbitrary desire or individual bias in legislation.

1 ) The maslahah must be genuine (haqiqiyyah), as opposed to a specious maslahah (maslahah wahmiyyah), which is not a proper ground for legislation. A mere suspicion or specious conjecture (tawahhum) that a certain legislation will be beneficial without ascertaining the necessary balance between its possible benefits and harms is not sufficient. There must, in other words, be a reasonable probability that the benefits of enacting a hukm in the pursuance of maslahah outweigh the harms that might accrue from it. An example of a specious maslahah, according to Khallaf, would be to abolish the husband’s right of talaq by vesting it entirely in a court of law. [26. Khallaf, ‘Ilm, p. 86.]

Genuine masalih are those which contemplate the protection of the five essential values noted above. Protecting the faith, for example, necessitates the prevention of sedition (fitnah) and of the propagation of heresy. It also means safeguarding freedom of belief in accordance with the Qur’anic principle that ‘there shall be no compulsion in religion’ (al-Baqarah, 2:256). Similarly, safeguarding the right to live includes protecting the means which facilitate an honourable life such as the freedom to work, freedom of speech, and freedom to travel. Protecting the intellect (`aql) necessitates the promotion of learning and safeguards against calamities which corrupt the individual and make him a burden to society.

Furthermore, safeguarding the purity of lineage (nasl) entails protection of the family and creation of a favourable environment for the care and custody of children. And lastly, the protection of property requires defending the right of ownership. It also means facilitating fair trade and the lawful exchange of goods and services m the community. [27. Abu Zahrah, Usul, p. 220.]

2) The second condition is that the maslahah must be general (kulliyyah) in that it secures benefit, or prevents harm, to the people as a whole and not to a particular person or group of persons. This means that enacting a hukm on grounds of istislah must contemplate a benefit yielded to the largest possible number of people. It is not maslahah if it secures the interest of a few individuals regardless of their social and political status. The whole concept of maslahah derives its validity from the idea that it secures the welfare of the people at large. [28. Khallaf,`Ilm, p.87; Badran, Usul, p. 214.]

3) Lastly, the maslahah must not be in conflict with a principle or value which is upheld by the nass or ijma`. Hence the argument, for example, that maslahah in modern times would require the legalization of usury (riba) on account of the change in the circumstances in which it is practiced, comes into conflict with the clear nass of the Qur’an. The view that riba in the way it is practiced in modern banking does not fall under the Qur’anic prohibition, as Abu Zahrah points out, violates the nass and therefore negates the whole concept of maslahah. [29. Abu Zahrah, Usul, p. 219; Badran, Usul, p. 215.]

Imam Malik has added two other conditions to the foregoing, one of which is that the maslahah must be rational (ma`qulah) and acceptable to people of sound intellect. The other condition is that it must prevent or remove hardship from the people, which is the express purpose of the Qur’anic ayah in sura al-Ma’idah (5:6) quoted above. [30. Shatibi, I`tisam, II, 307-14; Mustafa Zayd, Maslahah, p.51.]

Furthermore, according to al-Ghazali, maslahah, in order to be valid, must be essential (al-maslahah aldaruriyyah). To illustrate this, al-Ghazali gives the example of when unbelievers in the battlefield take a group of Muslims as hostages. If the situation is such that the safety of all the Muslims and their victory necessitates the death of the hostages, then al-Ghazali permits this in the name of al-maslahah al-daruriyyah. [31. Ghazali, Mustasfa, I, 141.]

However the weakness of al-Ghazali’s argument appears to be that the intended maslahah in this example entails the killing of innocent Muslims, and the Shari’ah provides no indication to validate this. [32. Badran. Usul, pp. 215-16.]

Al-Tufi’s View of Maslahah Mursalah

Whereas the majority of jurists do not allow recourse to istislah in the presence of a textual ruling, a prominent Hanbali jurist, Najm al-Din al-Tufi, stands out for his view which authorises recourse to maslahah with or without the existence of nass. In a treatise entitled al-Masalih al-Mursalah, which is a commentary on the Hadith that `no harm shall be inflicted or reciprocated in Islam’, al-Tufi argues that this Hadith provides a clear nass in favour of maslahah. It enshrines the first and most important principle of Shari’ah and enables maslahah to take precedence over all other considerations. Al-Tuf precludes devotional matters, and specific injunctions such as the prescribed penalties, from the scope of maslahah. In regard to these matters, the law can only be established by the nass and ijma`. If the nass and ijma’ endorse one another on `ibadat, the proof is decisive and must be followed. Should there be a conflict of authority between the nass and ijma’, but it is possible to reconcile them without interfering with the integrity of either, this should be done. But if this is not possible, then ijma` should take priority over other indications. [33. Tufi, Masalih, p.139.]

As for transactions and temporal affairs (ahkam al-mu’amalat wa al-siyasiyyat al-dunyawiyyah), al-Tufi maintains that if the text and other proofs of Shari’ah happen to conform to the maslahah of the people in a particular case, they should be applied forthwith, but if they oppose it, then maslahah should take precedence over them. The conflict is really not between the nass and maslahah, but between one nass and another, the latter being the Hadith of la darar wa la dirar fi’l-Islam. [34. Tufi, Masalih, p. 141; Mustafa Zayd, Maslahah, pp. 238-240. This book is entirely devoted to an exposition of Tufi’s doctrine of Maslahah.]

One must therefore not fail to act upon that text which materialises the maslahah. This process would amount to restricting the application of one nass by reason of another nass and not a suspension or abrogation thereof. It is a process of specification (takhsis) and explanation (bayan), just as the Sunnah is sometimes given preference over the Qur’an by way of clarifying the text of the Qur’an. [35. Cf. Mustafa Zayd, Maslahah, p. 121; Abu Zahrah, Usul, p. 223. A discussion of Tufi’s doctrine can also be found in Kerr, Islamic Reform, p. 97ff.]

In the areas of transactions and governmental affairs, al-Tufi adds, maslahah constitutes the goal whereas the other proofs are like the means; the end must take precedence over the means. The rules of Shari’ah on these matters have been enacted in order to secure the masalih of the people, and therefore when there is a conflict between a maslahah and nass, the Hadith la darar wa la dirar clearly dictates that the former must take priority. [36. Tufi, Masalih, p.141; Mustafa Zayd, Maslahah, p. 131-132.] In short, al-Tufi’s doctrine, as Mahmassani has observed, amounts to saying after each ruling of the text, ‘Provided public interest does not require otherwise.’ [37. Mahmassani, Falsafah al-Tashri`, p. 117. This author also quotes Shaykh Mustafa al-Ghalayini in support of his own view.]

Differences Between Istislah, Analogy, and Istihsan

In his effort to determine the shar`i ruling on a particular issue, the jurist must refer to the Qur’an, the Sunnah and ijma’. In the absence of any ruling in these sources, he must attempt qiyas by identifying a common ‘illah between a ruling of the text and the issue for which a solution is wanting. However, if the solution arrived at through qiyas leads to hardship or unfair results, he may depart from it in favour of an alternative analogy in which the ‘illah, although less obvious, is conducive to obtaining a preferable solution. The alternative analogy is a preferable qiyas, or istihsan. In the event, however, that no analogy can be applied, the jurist may resort to maslahah mursalah and formulate a ruling which, in his opinion, serves a useful purpose or prevents a harm that may otherwise ensue. [38. Cf. Sabuni, Madkhal, pp.134- 35.]

It thus appears that maslahah mursalah and qiyas have a feature in common in that both are applicable to cases on which there is no clear ruling available in the nusus or ijma’. They also resemble one another in the sense that the benefit that is secured by recourse to them is based on a probability, or zann, either in the form of a ‘illah in the case of qiyas, or of a rational consideration which secures a benefit in the case of maslahah mursalah. However, qiyas and maslahah differ from one another in certain respects. The benefit which is secured by qiyas is founded on an indication from the Lawgiver, and a specific ‘illah is identified to justify the analogy to the nass. But the benefit which is sought through maslahah mursalah has no specific basis in the established law, whether in favour or against.

Maslahah mursalah in other words stands on its own justification, whereas qiyas is the extension of a ruling which already exists. This explanation would also serve to clarify the main difference between maslahah and istihsan. A ruling which is based on maslahah mursalah is original in the sense that it does not follow, or represent a departure from, an existing precedent. As for istihsan, it only applies to cases on which there is a precedent available (usually in the form of qiyas), but istihsan seeks a departure from it in favour of an alternative ruling. This alternative may take the form of a hidden analogy (qiyas khafi), or of an exception to a ruling of the existing law, each representing a variation of istihsan. [39. Cf. Badran, Usul, pp. 216- 217; Sabuni, Madkhal, p.135.]

The Polemics Over Maslahah

The main point in the argument advanced by the opponents of istislah is that the Shari’ah takes full cognizance of all the masalih; it is all-inclusive and there is no maslahah outside the Shari’ah itself. This is the view of the Zahiris and some Shafi’is like al-Amidi, and the Maliki jurist Ibn al-Hajib, who do not recognise maslahah as a proof in its own right. They maintain that the masalih are all exclusively contained in the nusus. When the Shari’ah is totally silent on a matter, it is a sure sign that the maslahah in question is no more than a specious maslahah (maslahah wahmiyyah) which is not a valid ground for legislation. [40. Khallaf, `Ilm, p.88; Badran, Usul, p. 213.]

The Hanafis and most Shafi’is have on the other hand adopted a relatively more flexible stance, maintaining that the masalih are either validated in the explicit nusus, or indicated in the rationale (‘illah) of a given text, or even in the general objectives of the Lawgiver. Only in the presence of a textual indication can maslahah constitute a valid ground for legislation. The identification of the causes (`ilal) and objectives, according to this view, entails the kind of enquiry into the ‘illah that would be required in qiyas. The main difference between this view and that of the Zahiris is that it validates maslahah on the basis of the rationale and the objective of the Shari’ah even in the absence of a specific nass. Both these views are founded in the argument that if maslahah is not guided by the values upheld in the nusus there is a danger of confusing maslahah with arbitrary desires, which might lead to corruption and mafsadah. Experience has shown that this has frequently occurred at the behest of rulers and governors who have justified their personal wishes in the name of maslahah. The way to avoid this is indicated in the Qur’an, in sura al-Qiyamah (75:36) where we read: ‘Does man think that he has been left without guidance?’ The maslahah must therefore be guided by the values that the Lawgiver has upheld. Hence there is no maslahah unless it is corroborated by an indication in the Shari’ah. [41. Abu Zahrah, Usul, pp. 221,224; Khallaf, `Ilm, p. 88; Badran, Usul, p. 213.] While commenting on istihsan, Imam Ghazali writes: `We know that the masalih must always follow the shar’i indications; istihsan is not guided by such indications and therefore amounts to no more than a whimsical opinion”. As for maslahah mursalah, alGhazali maintains that when it is not approved by the Lawgiver, it is like istihsan. [42. Ghazali, Mustasfa, I,138.]

Al-Ghazali recognises the `accredited’ maslahah, that is, when the maslahah is indicated in the nass. He also approves of maslahah mursalah when it is based in definite necessity, that is, maslahah daruriyyah. In the absence of a definite necessity, al-Ghazali maintains that maslahah is not valid.

Consequently, al-Ghazali does not approve of the remaining two classes of the masalih, namely the complementary (hajiyyat), and the embellishments (tahsiniyyat).[43. Ghazali, Mustasfa, I, 139-140.] By making the stipulation that the maslahah, in order to be valid, must be founded in definite necessity, however, alGhazali is no longer speaking of maslahah mursalah, but of necessity (darurah), which is a different matter altogether and governed by a different set of rules. [44. Cf. Badran, Usul, p. 211.] It thus appears that this view only validates the type of maslahah which is referred to as maslahah mu’tabarah.

The opponents of istislah further add that to accept istislah as an independent proof of Shari`ah would lead to disparity, even chaos, in the ahkam. The halal and haram would be held to be applicable in some place or to some persons and not to others. This would not only violate the permanent and timeless validity of the Shari’ah but would open the door to corruption. [45. Khallaf, ‘Ilm, p.88.]

As already stated, the Hanafis and the Shafi`is do not accept istislah as an independent proof. Al-Shafi’I approves of maslahah only within the general scope of qiyas; whereas Abu Hanifah validates it as a variety of istihsan. This would explain why the Shafi`is and the Hanafis are both silent on the conditions of maslahah, as they treat the subject under qiyas and istihsan respectively. They have explained their position as follows: should there be an authority for maslahah in the nusus, that is, if maslahah is one of the accredited masalih, then it will automatically fall within the scope of qiyas. In the event where no such authority could be found in the nusus, it is maslahah mulgha and is of no account. But it would be incorrect to say that there is a category of maslahah beyond the scope of the nass and analogy to the nass. To maintain that maslahah mursalah is a proof would amount to saying that the nusus of the Qur’an and the Sunnah are incomplete. [46. Abu Zahrah, Usul, p. 222; Mustafa Zayd, Maslahah, p. 61; Badran, Usul, p. 213.]

The opponents of istislah have further argued that the Lawgiver has validated certain masalih and overruled others. In between there remain, the maslahah mursalah which belongs to neither. It is therefore equally open to the possibility of being regarded as valid (mu’tabarah) or invalid (mulgha).

Since there is no certainty as to their validity, no legislation may be based on it, for law must be founded in certainty, not doubt. In response to this, it is argued that the Lawgiver has proscribed certain masalih not because there is no benefit in them but mainly because of their conflict with other and superior masalih, or because they lead to greater evil. None of these considerations would apply to maslahah mursalah, for the benefit in it outweighs its possible harm. It should be borne in mind that the masalih which the Lawgiver has expressly overruled (i.e. masalih mulgha) are few compared to those which are upheld. When we have a case of masalih mursalah on which no clear authority may be found in the sources, and they appear to be beneficial, they are more likely to belong to the part which is more extensive and preponderant (kathir al-ghalib), not to that which is limited and rare (qalil al-nadir). [47. Badran, Usul, p. 214.]

The Zahiris do not admit speculative evidence of any kind as a proof of Shari`ah. They have invalidated even qiyas, let alone maslahah, on the grounds that qiyas partakes in speculation. The rules of Shari’ah must be founded in certainty, and this is only true of the clear injunctions of the Qur’an, Sunnah and ijma’. Anything other than these is mere speculation, which should be renounced. [48. Ibn Hazm, Ihkam, V, 55-56.]

As for the reports that the Companions issued fatwas on the basis of their own ra’y which might have partaken in maslahah, Ibn Hazm is categorical in saying that ‘these reports do not bind anyone’. [49. Ibn Hazm, Ihkam, VI, 40.] Thus it would follow that the Zahiris do not accept maslahah mursalah, which they consider to be founded in personal opinion (ra’y). [50. Cf. Mustafa Zayd, Maslahah, p. 62.]

The Malikis and the Hanbalis have, on the other hand, held that maslahah mursalah is authoritative and that all that is needed to validate action upon it is to fulfill the conditions which ensure its propriety.

When these conditions are met, maslahah becomes an integral part of the objectives of the Lawgiver even in the absence of a particular nass. Ahmad b. Hanbal and his disciples are known to have based many of their fatwas on maslahah, which they have upheld as a proof of Shari’ah and an instrument of protecting the faith, securing justice, and preventing mafsadah. They have thus validated the death penalty for spies whose activity violates the maslahah of the Muslim community. The Hanbalis have also validated, on grounds of maslahah, the death penalty for propagators of heresy when protecting the maslahah of the community requires this. But in all this, the Hanbalis, like the Malikis, insist that the necessary conditions of maslahah must be fulfilled. Maslahah must pursue the valid objectives of the Shari’ah and the dictates of sound intellect, acting upon which fulfils a useful purpose, or serves to prevent harm to the people. [51. Cf. Mustafa Zayd, Maslahah, p. 60.] Some of the more far-reaching instances of maslahah in the Maliki doctrine may be summarised as follows:

1.Imam Malik validated the pledging of bay`ah (oath of allegiance) to the mafdul, that is the lesser of the two qualified candidates for the office of the Imam, so as to prevent disorder and chaos afflicting the life of the community. [52. Shatibi, I’tisam, II, 303.]

2.When the Public Treasury (bayt al-mal) runs out of funds, the Imam may levy additional taxes on the wealthy so as to meet the urgent needs of the government without which injustice and sedition (fitnah) may become rampant. [53. Shatibi, I’tisam, II, 295.]

3.In the event where all the means of earning a lawful living are made inaccessible to a Muslim, he is in a situation where he cannot escape to another place, and the only way for him to earn a living is to engage in unlawful occupations; he may do so but only to the extent that is necessary. [54. Shatibi, I’tisam, II, 300.]

Conclusion

Despite their different approaches to maslahah, the leading ulema of the four Sunni schools are in agreement, in principle, that all genuine masalih which do not conflict with the objectives (maqasid) of the Lawgiver must be upheld. This is the conclusion that both Khallaf and Abu Zahrah have drawn from their investigations. [55. Abu Zahrah, Usul, p. 224; Khallaf, `Ilm, p.85.]

The Shafi’i and Hanafi approach to maslahah is essentially the same as that of the Maliki and Hanbali schools, with the only difference being that the former have attempted to establish a common ground between maslahah and the qiyas witch has an identifiable `illah. Some Maliki jurists, including Shihab al-Din al-Qarafi have observed that all the jurists are essentially in agreement over the concept and validity of maslahah mursalah. They only differ on points of procedure: while some would adopt it directly, others would do so by bringing the maslahah within the purview of qiyas. [56. Qarafi, Furuq, II, 188; Abu Zahrah, Usul, p. 225.] But Imam Malik’s concept of maslahah is the most far-reaching of the four Sunni schools. Since maslahah must always be harmonious with the objectives of the Lawgiver, it is a norm by itself. Maslahah mursalah as such specifies the general (`Amm) of the Qur’an, just as the `Amm of the Qur’an may be specified by qiyas. In the event of conflict between a genuine maslahah and a solitary Hadith, the former takes priority over the latter. [57. Abu Zahrah, Usul, p. 225.]

The changing conditions of life never cease to generate new interests. If legislation were to be confined to the values which the Lawgiver has expressly decreed, the Shari’ah would inevitably fall short of meeting the masalih of the community. To close the door of maslahah would be tantamount to enforcing stagnation and unnecessary restriction on the capacity of the Shari’ah to accommodate social change. ‘Abd al-Wahhab Khallaf is right in his assessment that any claim to the effect that the nusus of the Shari’ah are all-inclusive and cater for all eventualities is simply not true. The same author goes on to say: ‘There is no doubt that some of the masalih have neither been upheld nor indicated by the Shari’ah in specific terms.'[58. Khallaf, `Ilm, p. 88.]

As for the concern that the opponents of maslahah mursalah have expressed that validating this doctrine would enable arbitrary and self-seeking interests to find their way under the banner of maslahah, they only need to be reminded that a careful observance of the conditions that are attached to maslahah will ensure that only the genuine interests of the people which are in harmony with the objectives of the Shari’ah would qualify. This concern is admittedly valid, but one which cannot be confined to maslahah alone. Arbitrariness and the pursuit of self-seeking interests have never been totally eliminated in any society, under any legal system. It is a permanent threat which must be carefully checked and minimized to the extent that this is possible. But this very purpose will be defeated if legislation on grounds of istislah were to be denied validity. To combat the evil of an arbitrary indulgence which waves the banner of maslahah would surely have greater prospects of success if the mujtahid and the Imam were to be able to enact the necessary legislation on grounds of preventing harm to society. Consequently the argument that the opponents of maslahah have advanced would appear to be specious and self-defeating.

The following chapters from The Islamic Journal 02 are relevant to this subject;

1. The Foundations Of Islamic Society Are Laid Down and The World Is Changed Forever
2. The Objectives Of The Quran and Sunnah Are Codified Into Law
3. The Objectives Of Shariah
4. Imam Al Shatibi
5. The Maqasid Model
6. The Question Of The Ship and Torture
7. Founding Fathers of America and The Enlightenment Adopt The Maqasid Of Shariah