16. Masalih Mursalah (267)
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THE THEORY OF AL-MASALIH AL~MURSALAH IN ISLAMIC LAW
3Y
A
IN
THESIS THE
PRESENTED
FACULTY
OF
FOR
THE
ARTS, JUNE
DEGREE OF
DOCTOR OF
PHILOSOPHY
UNIVERSITY OF EDINBURGH. 1990.
(Ph.
ACKNOWLEDGEMENTS
I
like
would
those
to
express
my
appreciation and thanks to all
people and institutions who have contributed to my
interests advice
and
and
efforts
and
to
those
thanks go to my supervisor,
lecturer
in Arabic
and
I
helped
and
and Middle
with
Islamic
Eastern
Studies
Studies,
I.K.A. Howard,
Dr. at
for
the
Senior
Department of
his guidance,
patience
kindness.
acknowledge with deep appriciation the generocity of Sheikh
Ibrahim Afandi Kuwait
who
like
would
Muhammad
of
have
Arabia
and
Africa Muslim Agency
The
provided the funds for this study.
thank
to
Abu
Saudi
my
al-Fath
guardian and
for
vital
Dr.
M.M.
his
advice
U.K.
for
Miss
Crawford,
Middle
Most
of
advice
Eastern
services
and
all,
*
•
the
and
efforts.
The
the Director of
Ahsan,
I also
al-Bayanunl for his kind assistance in my
Many thanks also go to my advisor Dr.
his
of
former professor Dr.
my
course.
to
me
criticism.
My first
Islamic
have
who
and
assistance.
same
CA1I Jurayshah
kind of
thanks
go
Islamic Foundation in My best
regards are due to
Secretary of the Department of Islamic and
Studies,
for her
endless
hospitality,
good
gentle handling of the departmental matters.
I
am
indebted
family who have sustained
to my me
wife,
Zubeda Mahugu, and my
with unfailing encouragement and
support during our stay in Edinburgh.
ABSTRACT
THEORY
THE
This
thesis
al-mursalah
Muslim
OF
AL-MASALIH AL-MURSALAH
seeks
to
which
the
which
it
as
it has been developed by
discusses the legal background in
one
concept developed and the area of Islamic law in
might be deemed appropriate.
It also provides
linguistic and legal definitions of the term. the
primitive
scholars
are
uses
to
be
the
In chapter two,
of the principle as used by early Muslim
analysed. Although there is
as
yet no systematic
applications of al-maslahah al-mursalah
theory, seen
ISLAMIC LAW.
analyse the concept of al-maslahah
(unrestricted utility)
jurists. Chapter
IN
emerging.
can
be clearly
Chapter three outlines the systematic
development of the theory in which the jurists categorise the kind
of
benefits
chapter four,
their
but
individual
also
several
contributions
own
al-mursalah
In
this systematisation is studied in terms of the
contribution of al-RazI
appropriate to this legal principle.
thinkers
other to
the
including al-Ghazali and
important thinkers who made theory of al-masalih
with.
are
Chapter five is devoted to the work of al-Shatibl whose contribution
to
the
theory is probably the most significant
and
lasting. Chapter six contains
the
work
of
al-Tufl,
who made
an
analysis and critique of
this principle the paramount
principle in Islamic law. The theory put forward by al-Tufx led
to
World
the
and
scholars.
developments and redetions in the Modern Islamic the
principle
These
came
aspects are
to be discussed by modern
reviewed in chapter
seven.
Chapter eight draws the distinction between the Islamic
understanding of "public interest" theories
on
the
Finally,
or
"utility" and Western
subject.
the conclusion draws together the aspects of the
study and establishes the role of al-maslahah al-mursalah in Islamic
law
as
it
has
been
developed over the years.
TABLE OF CONTENTS
CHAPTER
1.
ISLAMIC
THE
AL-MASALIH
BACKGROUND
TO
THE
Shari ah
6
[A].
The
1.2
[B].
Fiqh: The Classical Theory
1.3
The
Definition of
1.4
The
Four
1.5
The
1.6
The
Distinction
1.7
The
Root
The
of
of
The
Position the
POSITION THE
[A]
and
Fiqh
Meaning
Mursalah
OF
21
Al-mursalah
Shariah
the
23
in the Qur'an and Sunnah
THE
UTILIZATION
EARLY OF
THE
MUSLIM
SCHOLARS
THEORY
OF
33
AL-MURSALAH
The
Al-masalih
of
The
thought
the
of
Imams
the
Schools
regards the Theory of Al-masalih
as
36
Malik
Imam
and Al-masalih
(The Malikis)
37
Al-mursalah
2.3.2
The
Position
of
(The Hanbalis) Al-masalih
Ahmad
Imam
ibn
Hanbal
regards the Theory of
as
39
Al-mursalah
Hanifah
Abu
(The Hanafis)
2.3.3
Imam
Theory of Al-masalih Al-mursalah Imam al-Shafii (The Shafiis) and the
41
2.3.4
Theory of Al-masalih Al-mursalah
45
2.3.5
General
Conclusion
of
the
Four
and
the
Imams' 49
Attitude
CHAPTER
33
35
Al-mursalah
Position of
Al-mursalah 2.3.1
26
AS
the
[C]
12 17 18 19 21
Position of the Companions Prophet (The Sahabah) [B] The Position of the Tabiin (The Followers of the Sahabah) Regarding to the Theory of of
2.3
its
Al-masalih of
Sources
AL-MASALIH
2.2
of
Legal Ordinances
TO
2.1
of
Shariah
the
and
Al-masalih Al-mursalah
1.9
THE
11
between
Definition
Role
2.
Fiqh
Maslahah
The
in
10
Major Sources of Islamic Law Divisions of Fiqh
1.8
1.10
OF
THEORY
6
1.1
1.7.1
CHAPTER
LEGAL
AL-MURSALAH.
3.
DEVELOPMENT
THE
OF
OF
THE
LEGAL
UNDERSTANDING
52
MASLAHAH
3.1
[A]
The Legal
3.2
[B]
Al-maslahah Al-mursalah as Decision
of 3.3
[C] of
Definition of Maslahah
52
means
Making
57
The Main Reservations the
a
in the Application
3.4.1
The
Theory of Al-masalih Al-mursalah Scope and Classification of Benefits Necessary Benefits
3.4.2
The
Reasonable
3.4.3
The
Luxurious
Benefits
75
3.4.4
The
Cancelled
Benefits
77
3.4.5
The
Unrestricted
3.4
[D]
The
Benefits
Benefits
60 64 70 74
81
CHAPTER
4.
MASLAHAH
AS
GENERAL
A
AND
4.1
Maslahah
as
a
General
4.2
Maslahah
as
a
Technical
4.3
Two
Main
TECHNICAL
A
TERM
85
Term
88
Term
in the Development of the Concept of Maslahah 4.3.1 Al-Ghazali's Concept of Maslahah
CHAPTER
Influence
The
4.5
Al-Razi's
4.6
The
Main
Trends
AL-SHATIBI'S
5.1
The
5.2
The
5.3
The
al-Ghazali
Jurists
other
on
of
the
OF
the
of
should
be
Universal
5.6
Al-masalih
118 120 130
Hereafter
the
Maslahah
Al-mursalah
identical
Bidah
144
AL-DIN
AL-TUFI
Al-Tufi's
6.2
The
6.3
6.4 6.5
Maslahah
is
the
Intention
6.6
Maslahah
in
the
Sunnah
6.7
The
Consideration
6.8
The
Root
Treatise
147
MASLAHAH
AND
6.1
Maslahah
on
147
147
The
Meaning of the Hadith "La darar wala dirar" Opinion of al-Tufi concerning
the
Consideration
of
Benefit
149
The
Consideration
of
Maslahah
of
of
and
152 153
by Qiyas
157 159 167
ijma the Lawgiver
156
Maslahah
of
ijma and Its Basis Objections to the Proofs of ijma 6.10 The Source of Dispute among the followers of
MODERN OF
CHAPTER
8.
the
Madhahib
Al-Tufi's
6.11
7.
172
Conclusions
STUDIES
AND
on
Maslahah
DEFINITIONS
ON
174
THE
CONCEPT
217
MASLAHAH
THE
DIFFERENCE
AL-MASALIH THEORIES
8.1
136 139
not
are
determined
are
6.9
CHAPTER
106 118
World
of
5.5
with
this
98
99
MASLAHAH
Masalih
How
NAJM
TREATMENT
90 90
Concept
Maqasid Doctrine Meaning of Illah in Usui two Approaches of observing the
5.4
6.
of
Concept of Maslahah
of Maslahah During the Period between al-Razi and al-Shatibi
Masalih
CHAPTER
Stages
4.4
5.
85
The
BETWEEN
THE
THEORY
AL-MURSALAH
AND
THE
OF
PUBLIC
of
Basis
Al-masalih Theories
of
236
INTEREST
Difference
Al-mursalah Public
OF
WESTERN
between
and
Interest
the
the
Theory of
Western
242
CONCLUSION
246
BIBLIOGRAPHY
254
INTRODUCTION
that
There
is
a
there
is
no
advancement. this
to
in
room
is
It
misconception about Islamic Law
common
not
it
that
for
character
by this idea who and
progress
only non-Muslims
misunderstanding, but
influenced
any
even
are
many
or
are
a
prey
Muslims have been
unacquainted with
spirit of Islamic law. What mainly is
responsible for this attitude is the concept that generally exists in the mind of the
common
regard to Islamic Law and man-made law. law
every
one
man
with
About man-made
knows that its composition and compilation
cWeprimarily influenced by the needs and exigencies of society. Therefore,
changes in the law kept pace with the
changes in social conditions. it will that
by
probably undergo changes at the
of
social
On
the
any
is
should has
of
speed
as
other
Islamic Law is not at all bound
hand,
rest
occur
Divine
on
in society.
revelation,
on
Its
the wisdom of
logic and human nature. The nature of Islamic
such not
been
no
that
one
human
influence
sent
Messenger And
same
too,
Prophet and on its understanding of the eternal
values law
in future,
environment.
changes that might
foundations the
Likewise,
down
to
desires
its
and
day-to-day events
composition in the least,
human
for it
beings by their Creator.
His
then elucidated and elaborated it to mankind. except God the Almighty and His Prophet has
to alter His law in the slightest degree.
any power as
far
there to
be
can
conception of Islamic law is concerned doubt
no
that
Islamic
Law
changes in society. On the contrary,
regarded of
this
as
this
itself
Muslim
subject,
static
a
not
the
to
Since the
is
Law
it does
that
not
assume
possess
is
well
as
the potential to accommodate
great divergence of opinion among
a
the
as
non-Muslim
scholars
its
tends to render it
more
the
even
this
its
prove
it
unenduring and It
is,
therefore,
that while scholars remain aware
necessary
of
more
the man-made law.
strength and stability,
examination
on
section believing Islamic Law to be truly
one
capricious than
of
that
growing needs of society.
there
progressive,
the
in spite
thing and lacks elasticity, and
rigid, while another section, overzealous to
all
susceptible
society is
it is not at all correct to
fact,
Islamic
is
subordinate to Islamic Law. However,
as
Thus,
there should be a thorough
potential for change and adjustment to
advancing forces,
so
that its true character be
properly understood.
The
relationship between legal theory and social
change is law.
laws,
one
"Law"
of the basic problems of the philosophy of
which,
having its associations with physical
is assumed to be unchanging,
always faces the
challenge of social changes which demand adaptability from
it.
Most
often
the
impact of social change is
2
so
profound that it affects legal concepts as well as institutions
and
thus
creates
need
a
for
a
fresh
philosophy of law. The problem of social change and legal theory is of particular significance in Islamic legal
philosophy.
sacred and hence immutable.
religious, law
face
The
Islamic Law is generally defined
the
as
How does
such a
challenge of change?
above
question has brought to the fore the
problem of the adaptability of Islamic Law which has been widely discussed,
so
has
been
yet
remains debatable. The problem
generally formulated in the form of the
following question:
Is Islamic Law immutable or
is it
adaptable to the extent that the change and modernization sought can be pursued under
Broadly speaking, in a
answer
this
to
its aegis?
there have been two points of view
question. One view, which is shared by
large number of Islamicists such
J.
Schacht,
and by the most of
as
C.S.
nature
Law
is
of
its
immutable
and according to
development and methodology, and
hence
not
and
the traditionalist Muslim
jurists, maintains that in its concept, the
Hurgrpnje
Islamic
adaptable to social
changes. A second view, which is upheld by a few experts on
Islamic
Law
such
as
Linant
de
Bellefonds
and
by the
majority of Muslim reformists and jurists such
as
Subhl
Mahmasani,
as
the
contends
consideration
of
that
maslahah
such
legal principles
(roughly translated,
3
benefit,
utility), the flexibility of Islamic Law in practice
or
and
the
emphasis
ijtihad (independent legal reasoning)
on
sufficiently demonstrate that Islamic Law is adaptable to social
change.
This of
the
a
contribution
towards
the
paradox of the dilemma of Islamic Law,
of
that
is
research
The theory of al-masalih
solution
to
this
al-mursalah is
paradox. The nature of the
one
and
to shed
the question of its sublimity and immutability
on
establishment
the
a
essence
spirit of Islamic Law is explained in chapter
in
namely:
being immutable and yet adaptable to social
changes.
light
solution
of
facts
and
truths.
The
Islamic
legal background to the theory of al-masalih al-mursalah is
discussed
Islamic of our
law
here have
first
the
in
order
to
show
that
the
principles of
equally remained the same since the dawn
Islamic
society right through the
ages
up
to
days without being affected by the changes in the
society. The position of the early Muslim scholars
as
regards the application of the theory of al-masalih al-mursalah
is
discussed
in
chapter
although the theory in question it
then, how
the
attitudes appear
not elaborated by
extensively applied by the scholars to show
was
important As
was
two to indicate that
a
device of Islamic law it is.
Islamic
and
legal theory developed
so
differing
understanding of the concept of maslahah
in the work of different scholars,
4
this is dealt
with
in
chapter three. The concept of maslahah as a
general
well
as
as
technical term is discussed in
a
chapter four.
five is about al-Shatibi's treatment of the
Chapter
concept of maslahah defining the goals and the objectives of
Sharicah
the
with
consideration
the
that
means
(maqasid al-SharIcah) which have to do
attainment
of
and
laws
the
the
of
benefits
the
rules
of
of
people.
Sharicah
the
are
This for
the
people's benefits at the same time as
preserving them from injuries. No law therefore is to be enacted
in of
maslahah
al-Tufi's
Sharlcah without
the the
people.
on
the concept
of
of
his
maslahah
and
ideas
modern
The
consideration
of
the
Chapter six discusses Najm al-Dln
concept of maslahah highlighting his peculiar
opinion most
the
have
a
critique
concerning the concept.
works
been
in question and giving
and
definitions
discussed
at
of
the
concept of
length in chapter seven,
chapter eight is a comparison between the theory of
al-masalih
al-mursalah
and
the
theories
Western
of
public
interest.
It
is
al-masalih
hoped that after this study, al-mursalah
in
Islamic
law
the role of
and
its
scope
providing the immutable laws of Islam with the possibilities of meeting the challenges of changing social
needs,
will be
more
clearly understood.
5
for
Chapter 1 LEGAL_ BACKGROUND TO THE THEORY OF
ISLAMIC
THE
AL-MASALIH AL-MURSALAH •
1.1
A.
THE
is
It
different of
it
may
the as
is the
be conceived
as
man-made.
in
accordance
the
us
two
The latter conception is
or
is
what
men
ethical
principles because God because the king
the leaders of the
or
us
for the good
Islamic notion of
the
understand
what
technically
as
and qubh
Good
an
law? Man
and
Evil
are
in his unless
inspired Prophet. Good
the Muslim scholars have
(ugliness),
are
it,
to be taken in the
acceptation of the terms. What is morally
beautifu] be
Roman,
be compelled to
may
alternatively,
or,
guided in the matter by
(beauty)
C.L.
so,
certain
We
it is,
the Greek,
social custom demand it of
cannot
Evil,
husn
with
law.1
of
or
people in general.
weakness
and
do
to
notion
assembly of wise
the
is
Germanic
or
Now,
1
are
with Islamic law,
case
Ostrorog has pointed out,
Leon
community
not
there
Law may be considered to
as
desires
he
conceptions of law. origin
Count
act
of
to remember that
necessary
guiding principle of all modern legislation;
Celtic
or
SHARICAH
divine
be
•
must
done.
be
That
Ostrorog,
done; is
law
and what and
is morally ugly must
nothing else
The Angora reform,
6
p.
15
can
be law.
But
what
is
absolutely and indubitably beautiful, what is
absolutely and indubitably ugly? These legal questions;
and who
can
answer
the Muslim legists.
the important
are
them? Certainly not
There is Qur'an which is the
man,
say
very
word of God as believed by the Muslims.
Supplementary to it there is Sunnah, which is the model life
of
the
sayings in
-
Prophet
from which
the records of his actions and his
-
a
help and inspiration are derived If there is nothing in
arriving at legal decisions.
either
the
or
the
Sunnah
to answer
particular
a
then the dictates of reason in accordance with
question, certain
Qur'an
definite
These
principles have to be followed.
principles give assistance to the
comprehension of sacred law
or
sharlcah
as
the Muslim
jurists understand it. And it is these fundamental juristic notions which in
consonance
we
must
try to study and analyse
with the theory of al-masalih
al-mursalah.
Modern
jurists emphasize the importance of law for
understanding the character and ethos of "Law"
a
people.
says a modern jurist, "streams from of a people like national poetry, it
the is as holy as the national religion, it grows and spreads like language; religious, ethical, and poetical elements all contribute to its vital soul
force";2
2
C.K.
Allen,
Law
in
the making,
p.
7
54;
5th ed.,
p.
90
it
is, "the
distilled
of
essence
civilization
the
of
a
people";3 "it
reflects
This
the
people's soul
is
of
true
Islam
its
civilization,
of
core
its
of
than
more
Sharlcah is the central of
than any
more
organism".4
other
other
any
Islam;
faith.
The
understanding
no
social history or
its political
system is possible without a knowledge and appreciation of
its
system.5
legal
Sharlcah
(lit.,
path to be followed) law
Canon
Each The
of of
one
of
law
Islam, such
God
road to the watering place,
the as
a
inner
is
called
hukm
meaninggye not
(pi.
and Sharlcah embraces all human actions.
reason
it
an
not
infallible
DOCTRINE
considerations
and
3 4
of
A.S.
Diamond,
D.H.
Parry,
all
individual
the
modern
It
sense;
rights have
a
this
For
it contains
is fundamentally
code of obligations.
a
place in it. Above all, evaluation
the
guide to ethics.
DUTIES;6
OF
in
"law"
ahkam). to
easy
grasp;
is
the
totality of God's commandments.
the
its
signifies
technical term,
commandments
and
the
a
Legal secondary
the tendency towards a religious
affairs
of
life
Evolution of Law and Order,
Haldane memorial lecture,
p.
p.
is
supreme.
303
3
C
Esquisse,
J.Schacht, sources
®
This
of was
Goldziher, EI.
1,
vol.
the
Shariah
p.
9;
in
Law
and S.G.V. in
Fitzgerald,
the Middle
East,
Nature and vol. 1, p. 28
pointed out by Snouck Hurgronje, who according to is 2,
the p.
founder of historical
105;
and Fitzgerald,
8
criticism of op.
cit.,
fiqh.
vol.1,
p.
See
31
the
Sharlcah,
the
In
classified
the Muslim scholars have
religious injunctions into five kinds, al-ahkam
al-khamsah7
Those
strictly enjoined
strictly forbidden middle to
do
haram.
are
categories, namely, mandub,
from makruh,
prayers,
(festival)
are
crabs,
makruh,
things, is
advised
are
refrain
ja'iz.8 five in number,
mandub;
are
like those
on
fard; wine is the cid,
certain kinds of fish,
and there
are
all human activity
such as
thousands of
such as travelling by air etc.
universal;
you
and finally there are things about which
daily
are
Between them we have two
things which
the additional prayers
haram;
and those
and things which you are advised to
religion is indifferent
The
fard,
are
ja'iz
Thus the Sharicah
is embraced in its
sovereign domain. This fivefold division must be carefully noted;
unless this is done,
for,
it is
impossible to understand the distinction between that which
is
only morally enjoined and that which is legally
enforced.
Obviously, moral obligation is quite
different
thing from legal necessity, and if in law these
distinctions
of
not
inevitable
the
are
are
kept in mind,
result.
al-masalih al-mursalah
Thus,
error
the
a
and confusion
study of the theory
helps to comprehend those
•7
Kemal
Research 8
EI.
1,
A.
Faruki,
Institute, s.v.
Al-ahkam al-khamsah: pp.
Shariah,
43-8 vol.
4,
p.
322
9
The
five values;
Islamic
distinctions
and
demarcations
make
between
moral
obligations and legal necessities. 1.2
B.
THE CLASSICAL THEORY
FIQH:
Fiqh is the
given to the whole science of
name
jurisprudence because it implies the exercise of intelligence in deciding a
binding
Sunnah. a
(textual command)
nass
Fiqh literally
jurist,
a
difference
point of law in the absence of
a
person
from the Qur'an
or
"intelligence", and faqih is
means
skilled in the law. There is thus
between
cilm
(knowledge),
and fiqh, which
requires both intelligence and independent judgment. man
may
faqih
be learned,
fuqaha'), he must
(pi.
independent judgment, "correct"
and
fuqaha'
may
9
to
be
Wensinck,
term
fiqh
Roman,
found
also have been suggested by the Latin
also
Muslim creed,
p.
110
his
article
on
-
Jewish and Persian
has
in the
Fiqh
-
a
the
But
10
laws.9
valuable discussion on the the incorporation of
idea of
Islamic law
EI.l,
misleading
for a
traces of similar cases
some
in hadlth literature. in
(juris) prudentes;
in Roman,
Jewish and Persian laws
Goldziher
or
classical author. The terms fiqh
a
study of fiqh reveals that are
a
the quality of
binding rule of law, and the "weak"
(juris) prudentia and
terms
possess
A
the capacity to discern between the
unsupported opinion of and
culama'), but to be
calim (pi.
a
vol.
2,
as
p.
SuggesllCel by 102
-
seems
1.3
THE
DEFINITION
have
We
defined
the
the moral
now
term
OF
to
FIQH
see
fiqh.
how
the
Muslim
lawyers have
Abu Hanlfa's definition stresses
aspect:
"fiqh is the soul's cognizance of its rights and
obligations".10 Turkish
The
"the
four
1)
defines it
authorities,
basic
define it in terms of
however,
constituents,12
and
as:
questions".11
knowledge of practical legal
Islamic
Most
its
Mejelle (Art.
we
may
therefore
say
that:
"Fiqh or the science of Islamic law is the knowledge of one's rights and obligations derived from the Qur'an, or the Sunnah of the Prophet, or the consensus of opinion among the learned (ijmac), or analogical deduction "(qiyas)".13
This the
on
is
the
classical
view and
oft-quoted tradition of Mucadh.
reported to have sent Mucadh, governor
of
distributor and
the
is
a of
one
said
be
to
founded
The Prophet is
of his companions,
province and also appointed him
as
a
justice. No trained lawyers existed then
Prophet asked:
"According to what shalt thou judge? He replied: "According to the scriptures of God". "And if thou findest nought therein? "According to the 112 11 12
Taftazani,
12
Talwih,
vol.
1,
p.
10
S.MahmasanI, Philosophy of Jurisprudence in Islam, J.Schacht,
Jurisprudence,
Esquisse, p.
as
p.53;
cAbd al-Rahim, Muhammadan
48
al-Shafici, Al-risalah,
tr.
p.
by M. KhaddurI,
11
p.
78
8
a
Tradition of findest
the
Messenger of God"
"And if thou
nought therein?" "Then I shall strive to
interpret with my reason". And thereupon the Prophet said: "Praise be to God who has favoured the messenger of his Messenger with what His Messenger is willing to approve".14
Possibly of late origin, tradition methods that
of
of
arriving at law
limits,
Qur'an has the
are
silent
of
Sunnah
next
1.4
is
for it,
THE
Law
on
the
and judgment exercised in
question. A noteworthy feature
the
Qur'an
is given pre-eminence
practice of the Prophet. Although
specifically,
it
prepares
the
"prevalent usage" of the community.
MAJOR
no
SOURCES
op.
and
jurisprudence,
OF
ISLAMIC
LAW
according to this theory, law.
Its
is the first
importance is religious and
less than legal,
the Word of God.
war
the actions and sayings
ijmac emphasizes the importance the Arabs
Islamic
of
Ostrorog, of
interpreted,
mentioned
Qur'an,
spiritual,
14
independent judgement, within
that
not
FOUR
The
belief,
be
the
for
to the
source
it emphasizes the principle
legal theory in case the Qur'an and
is
comes
consensus
gave
as
Prophet duly considered,
Sunnah
way
of
to
with
and
important
is not only permissible but praiseworthy.
accordance
the
an
explain the Islamic understanding of the
exercise
the
certain The
to
this is
When
as a
it is,
verse
of
in Muslim the Qur'an
is
cit., p. 21; Wensinck, op.cit., p. 156; Khadduri, in Islam, p. 28; cAbdu al-Rahlm, Muhammadan
peace
pp.
140-1
12
cited,
the Muslim authors
Glorious is
It
He"
this
for
or
"Says God, that
reason
legal questions,
authority.
the Blessed and Exalted".
the
verses
of
Qur'an
In interpreting the Qur'anic verses,
deemed
to
be
abrogated
earlier
be
the
verses
The
ones.
the
held to be of paramount
are
important principle has to be observed.
the
Mighty and
says,
although only a few of them deal specifically
(ayat), with
is
"God
say:
abrogating (mansukh)
are
deemed
textbooks
attention
to
(nasikh)
be
Islamic
on
Some verses are
verses
and
some
Generally speaking,
ones. to
one
to
the
repealed by the later law
give
good deal of
a
problems of interpretation and discuss
exhaustively the question of how the rule of law is to be deduced or
a
when
several
similar
directly The
or
Qur'anic
problem,
indirectly.15
second
of
source
pre-Islamic times for established
later,
Prophet
the
in
term was
law
15
two
Mahmasani,
leads
the
Sunnah,
ancient and continuous
the
usage,
community (sunnat al-ummah);
applied to the practice of the
(sunnat al-nabi).
terms
is
The word sunnah was used in
an
the
Islamic
The word sunnah must be
distinguished from the term hadith, the
same
when one verse affects another,
or
practice of the Prophet.
well
deal with the
verses
sometimes
op.cit., p.66;
to
a
confusion
cAbd al-Rahim,
13
for
op.
careless use of of
thought.
cit., p.77
A
hadith the
is
the
of
rule
report of deduced
law
particular
a
from
it
is
occurrence;
the
"practice" of the
his "model behaviour". The two
Prophet,
sources,
and
Sunnah,
and
represent direct and indirect revelation
often called
are
respectively.16 According mirror
The
of
opinion
the
(textual ordinance),
to Wensinck,
hadith is the
source
Islamic
of
law
ijmac,
is
consensus
the learned of the community.
among
Although
modern
critics
consider
it
to
in
Islamic
law,
and
an
examination of the corpus
element
of
third
Qur'an
society.17
Muslim
of
nass
sunnah,
the
fiqh reveals that
consists
of
the
concurrent
the
most
important
major portion of the law opinions of scholars
on
legal
the Muslim legists give it the third place in
questions,
descending order. "the
a
be
Snouck Hurgronje considers it to be
foundation of foundations" in the law.18
and
the
movable
element A
tradition
of
the
Prophet tersely summarizes the
principle:
16
J.
Schacht,
Esquisse,
16 and p. 58; U.P.Azamgadh, Distinction 91; al-Shafici said that Sunnah explains the Qur'an, Al-risalah [tr. by Khaddurl ], p. 72. See also S.M.Yusuf, The Sunnah; Its transmission, Development and Revision, pp. p.
between
Hadith
271-82;
and Hadith by J.Robson,
17
Wensinck,
and
Sunnah,
Muslim Creed,
p.
p.
1;
3,
pp.
23-8
and generally
see
EI.l,
EI.
2,
555
18
S.Hurgronje, Selected Works,
p.289
14
vol.
vol.
4,
p.
"My community will and
Qur'anic texts
several
ijmac
But
does
the
allied
majority view the
it
are
on
among
should
thus
the
Sharlcah like and
be
not the
error"19
an
in
adduced
its
support.20
representing
the Muslim scholars,
pre-Islamic sunnah,
and
understand
agree
it stands in Islamic law,
as
to
never
taken
as
it
was
the prevalent usage,
as
an
original
Qur'an and Sunnah but
as
source an
of
aid to
supplement these twin origins of the
Sharlcah.21
The
fourth
and
last
analogical deduction. (hiqqish),
from
together".22 and
used
of
Islamic
is
qiyas,
is derived from Hebrew term
Aramaic root, meaning
an
law
"to beat
In Arabic usage the word means
therefore
often
It
source
"measurement"
"analogy". The term ra'y and qiyas are
by lawyers and it is well to know their exact
significance. According to Schacht, "Individual
reasoning in general is called ra'y (opinion). When it is directed towards achieving systematic consistency and guided by the parallel of an existing institution or decision is called qiyas. When it reflects the personal choice of the lawyer, guided by the idea of appropriateness, it is called istihsan or
19
—
Wensinck,
cit., p. 113; According to al-Shafi i, giyas and ijtihad run parallel and have equal value, M.H. Kerr, Islamic Reform, p. 76; cAbdu al-Rahim, op. cit., p. 115 ?0
21
—
—
Mahmasani, For
D.B.
22
op.
op.
cit.,
p.
ijmac generally,
Macdonald,
Schacht,
op.
EI.
1,
cit.,
see
vol. p.
76
Schacht, op. 2, p. 448
99
15
cit.,
p.
82;
and
(preference)".23
istislah
exercise
The
and
the
from
earliest
the
deduction is
the
opinion,
discretion
of
use
of
forms
the drawing of conclusions, used
were
in
the
days, and in Sunnite law, fourth
the
and
last
source
of
law
Islam
the method of of
law.
This
type of source in which a jurist may consult the
theory of al-masalih al-mursalah to draw his conclusions and
formulate
law
as
well,
exercised such
opinions. There
by English judges
will
be
discussed
difference
of
opinion
discretion
can
distinctions
on.
They mainly reflect the
jurists in matters where
among
have
and
become
lead
ijmac,
secondary
therefore
a
supplement of Qur'an and
addition
In
others
which
and
Schacht,
may
these
op.
to
the
four
be termed
cannot
cit.,
p.
Qiyas,
like
of the Sharlcah and is
a
source
and
refinements
questions of controversy
is
23
to
the adherents of various schools.
among
law,
judicial discretion
istishab and istihsan,
later
exercised
which
other sources of
matters of public policy,
on
istidlal,
,
be
are
in the nature of
often
istislah
as
which
his
formal
as
Sunnah.24 sources,
there
are
the material sources of
be neglected,
such as pre-Islamic
98
24
Generally see Schacht, op. cit., p. 98; and Ency. of Islam, under subject matter "Qiyas"; also see Mahmasani, op. cit., p. 79. For Shiite doctrine see Fitzgerald, Law in the Middle East, vol. 1, p. 122
16
is
There
custom.
considerable
authority for the
proposition that beneficial customs, although ancient and pre-Islamic, in mind
bear
retained.25
to be
are
those
that
indirectly at loggerheads with the
Qur'an
in
of
law
customs
of
different
this
known
of
material
as
retention
the
of
the
peoples and countries is also to be
cadah
as
or
binding ordinance from
Evidence
Islam.
in Java and Indonesia,
as
is
a
directly
are
Sunnah will not be considered
or
sources
found,
which
customs
it is important to
But
Africa,
curf.26
or
Egypt and India;
Customs
are
also
accepted under the guise of ijmac.
1.5
DIVISIONS
THE
While be
also
we
discussing the nature of fiqh,
are
sections.
foundations)
the
likened
first to
The
and the furuc,
modern
law,
from
as
the
we
Fitzgerald, See
"
op.
cAma1",
cit.,
E.I.
2,
p.
injunctions
would call of
usul.
East,
vol.
(or
vol.1,
1,
p.
-
ahkam
it,
which
The
science
28; MahmasanI,
may
be
op.
cit.,
or
-
the
really
p.
of
usul
91
On custom in general, see vi; Mahmasani, op. cit., p. 290 and Fitzgerald, Law in the 110; Coulson, History of Islamic law, p. 147 p.
427.
Levy, Social structure of Islam, chap, 130; S. Hurgronje, Selected Works, p. Middle
the branches
jurisprudence, while the science of
science
9 c
2®
the
principles of interpretation and
our
substantive
(or
The science of usul deals
of the law.
furuc deals with particular
follows
it must
literally the roots
usul,
of the law,
applications)
with
FIQH
pointed out that this science has been divided
into two
the
OF
17
deals with
the
science
the
of
sources
the
furuc deals with the law
of
applicable in courts of justice, marriage, law of
realize
the law of waqf
inheritance. in
that
distinction
between
1.6
DISTINCTION
their
have
essentials,
now
is
distinction, circle, is
the
if any,
have
the
edifice an
are
Sharicah
of
a
what
THE
SHARICAH
of
action
is
clear
AND
FIQH
in
fiqh. What is the
between them?
Sharicah is the wider
in its orbit all human actions and deals with what
Sharlcah reminds
cilm (knowledge) which
we
;
fiqh
commonly
are
us
always of
could
never
in fiqh,
and deductions based
continuously cited with approval. The path laid
down
by God and His Prophet;
fiqh is erected by human endeavour. is
the
to
Sharicah is and what,
either
legal
or
illegal,
yajuz) permissible or not permissible.
27
very
or
principles and the rules
of reasoning is stressed,
cilm
the law of
necessary
possessed but for the Qur'an and Sunnah; power
upon
one,
that
is
there
first
legal acts.
as
revelation,
law
BETWEEN
seen
it embraces
understood
instance,
for
therefore,
the definition of
narrower
is actually
it
as
application.27
from
We
the
interpretation;
(charitable foundation)
is,
It
Islamic
deduced
THE
its
law and
the
In fiqh,
(ma ya juz wa ma la In the
Sharlcah,
on Fiqh, E.I. 1, vol. 2, p. 104; this is a most general article on the subject; MahmascTtyt..Philosophy of Jurisprudence in Islam, p. 63; cAbd Rahim's Muhammadan Jurisprudence
I.Goldziher,
valuable
is
a
modern
textbook
on
usul
18
there
is
the
for It
various
are
used
term
the
law
however,
must,
distinction Muslim
the
is
in
the
law
as
science;
a
and Sharicah,
divinely ordained path of rectitude. be candidly confessed that the line of
by no means clearly drawn, and very often
scholars
themselves
use
the
terms
for the criterion of all human action,
synonymously; whether
for
the
as
Sharlcah
the
or
in
the
fiqh,
is the
seeking the approval of Allah by conforming to perfect
code.28
1.7
ROOT
THE
Before
OF
MASLAHAH AND •
•
it
maslahah
mursalah.
a
and
of
noun
indicate
of
an
-
ideally
MEANING
root
a
when
a
appropriate to define the words
seem
Etymologically, the word maslahah
"s-l-h".
thing
or
right, virtuous, honest, state
ITS
same
discussing the role of al-masalih
al-mursalah,
is
Fiqh
grades of approval or disapproval.
man or
The
verb
"saluha"
is
used
to
becomes good, uncorrupted, alternatively to indicate the
possessing these virtues. When used with the
preposition "li" it gives the meaning of suitability. Maslahah an
a
in
occasion,
thing,
an
conducive
28
to
Levy says
constitute
ete-fimition
its or
relational a
sense
means
goal which is good.
affair
or
a
good,
or
that is for good.
a
cause,
It
a
means,
is also said of
piece of business which is Its plural form
that fiqh plus kalam [scholastic philosophy] combine and Sharicah, Social Structure, p. 150, which is a wrong
the
of the
Sharicah
19
is
"masalih".
Ma£sadah
is
its
exact
In Arab
antonym.
usage,
it is said:
means:
"He
of
the
people". The sentence "f1 al-amr maslahah" is used
to
say:
considered
the
things that
were
for the good
"In the affair there is that which is good
In
the
Qur'an various derivatives of the root
"s-l-h"
are
used,
appear and
the word maslahah,
there. The Qur'an
"fasada"
"saluha". occurs
(or a
good).29
of
cause
al-nas" which
"nazara f1 masalih
"zalama"
corrupted)31
(he/it
"Salih"
uses
the
active
as
(he did
wrong)30
opposite terms to
participle of "s-l-h",
frequently in the Qur'an. On
very
does not
however,
one
meaning of this term is elaborated textually
occasion the as
follows:
"They believe in God and in the last day and enjoin goodness and forbid evil and hasten to do good deeds and these are the righteous ones
(salihin).32
it
Whereas and of
not
See
E.
1863-93], 30 31 32
the
Qur'an
clear was
good and utility,
had
29
in
is
See
yet become
Qur'an,
4,
pp.
its
use
in
the
early period
essentially related to the meanings there can be no doubt that the word
technical term.
An Arabic-English
Lane,
vol.
a
that
lexicon,
[London: Williams
and
1714-15
5:39
Ibid.,
26:125;
Ibid.,
3:114.
27:142;
2:220
Raghib al-Isfahani, Al-mufradat fi gharib al-Qur'an, Tijarat al-kutub, 1961], p. 286, also confirms that in the Qur'an "salah" is often opposed to "fasad" and "sayyia'" [Karachi:
20
1.7.1
DEFINITION
THE In
Arabic
OF
language the word "mursalah"
independently judged, indicates
of
state
a
MURSALAH
or
means
unrestricted. The word also
being left alone which is normally
expressed in Arabic by the term "mutlaq al-hal" "mursalah"
it only appears in the books of
Sunnah; used the
neither in the Qur'an
appears
nor
(unrestricted benefit)
as
of determining
means
a
to formulate
masalih mursalah}
{pi.
"maslahah mursalah"
in the
"usul al-fiqh"
concurrently with the word "maslahah" term
The word
♦
unspecified benefits in Islamic law.
1.8
ROLE
THE
For
lawyers, it
as
the
OF
AL-MASALIH
"al-masalih
term
while others
use
the
term
due
at
the
as
a
same
the
to
"maslahah"
(i)
Some call
(unrestricted suitability),
"istislah".
(seeking the
the term "istidlal"
use
same
objective from
fact
that
(benefit)
obtain
a
different angle.
certain
This
rule which is based on
every
could be observed in three aspects:
resulting benefit;
a
in
objective. Yet, each term
(ii)
as
a
suitable
description which necesitates the legislation of to
(seeking
Although these terms may seem different,
reality they imply the
is
Muslim
some
other terms.
use
al-mursal"
better) and still others
looks
al-mursalah"
jurists and scholars
"al-munasib
proof).
AL-MURSALAH
benefit;
and
benefit.
21
(iii)
as
a
a
rule
deciding
Those
aspect those
discern
who
in his
book
an
"Al-mukhtasar"
"maslahah"
within
"istislah"34
Some
Muslim
the
where
(a)
(c)
benefit.33
unrestricted
through the second aspect
into:
al-mursal"
a
as
Ibn
he
divides
the
an
effective benefit,
such
the
Qur'an,
istihsan to
and
Whereas
those
who
and
(d)
perceive
of the third aspect use the
scope
"istidlal"35
or
scholars
regard "istidlal" as being
excluding evidences
ijmac and qiyas, such
Sunnah,
istishab.
al-masalih
al-Hajib
strange benefit,
superior to all types of evidences, from
while
al-mursalah";
al-mursal"
consistent benefit,
a
term
"maslahah"
"al-munasib
term
"al-munasib
(b)
perceive "maslahah" through the first
the term "al-masalih
use
the
use
who
Hence
al-mursalah
this
as
of scholars refer
group
by the term "al-istidlal
al-mursal".36 t
In
Muslim of
spite of the differing perceptions amongst the jurists and scholars
lawyers,
maslahah mentioned
product is the
same
-
on
above,
notwithstanding,
i.e.
maslahah which enters in the
a
intention of the Lawgiver without having
33
al-Hajib, Al-mukhtasar, vol. Al-qhalll, p. 34
2,
p.
See
al-Ghazall, Al-mustasfa, vol. 1,
p.
139
See
Imam
See
al-Zarkashi,
Shifa 34 35
al-Haramain,
Al-burhln,
Al-bahy
vol.
Al-muhit,
22
an
the end
evidence for
-
Ibn
See
the three aspects
342; and al-Ghazali,
2,
p.
329
vol.
3,
p.
166
it
from
or
qiyas,
ordinances
the
of
the
Qur'an and Sunnah,
which acknowledges its consideration
its
nullification.
1.9
THE
POSITION
OF_AL-MASALIH
or
proves
AL-MURSALAH IN THE
SHARICAH
SOURCES
OF
THE
It
is
important to remember that the theory of
al-masalih
Sharicah,
for
sources
could
sources
not
be
Islamic
(vii)
Prophet;
practice);
a
(preventive measures);
the
simple);
(iv)
(xii)
(xiii) (xv)
the
37
cAbd
fih,
the Prophet)
(iii)
The Sunnah;
the Companion of the
(viii)
(ix) Al-Bara'
Istishab
al-asliyyah (xi)
Sadd al-dharaic
Istidlal
(
deduction);
Ikhtiyar al-aysar
(taking
(xviii)
for Shicas;
(xvii)
Ijmac of al-GItrah and
(xix)
Ijmac of
caliphs.37
four
See
nass
sources.
(xvi) Al-Cismah (immunity from sins);
Ijmac of the people of Kufah; (the house of
(ii)
these
Al-Cawaid (customs);
(x)
(equity);
of
al-masalih
Ijmac of the Medinah
A saying of
(induction);
Istihsan
one
The Qur'an;
(vi)
(original exemption);
(xiv)
as
which
al-Masalih al-Mursalah;
(continuation of
Al-istiqra'
in
law
described
(i)
are:
Qiyas;
(v)
of the
source
Some Islamic jurists have outlined
Ijmac of the Islamic Ummah; people;
primary
a
it cannot stand alone in legislation
hence
al-mursalah These
is
al-mursalah
except by conditions. nineteen
ijmac
or
p.
al-Wahhab
Khallaf,
Masadir
109
23
al-tashrlc al-Islami fi
ma
la
of
Some
these
sources
jurists and lawyers and order
In
their sul
to
detail
in
rules
their
know
accepted by all Muslim
are
of them
some
boundaries, one
has
to
the
are
realities and
the
books
on
u_
the
benefits
injuries confirmed
it
al-masalih
al-masalih al-mursalah
(La darar wala dirar)
the
negation of injuries;
thus
formulates
al-mursalah.
conflict
to
nor
repay
this
and since the
detested in the Sharicah and benefits are
In
the
basis
with
some
of
spite of this,
injunction is enjoined in the Qur'an seems
the prime
importance of confirming the consideration
and
are
are
"Do not inflict injury,
injury by another"
indicates
as
which
it is derived from the saying of the
concerned,
Prophet which states:
of
consult
Qur'an and Sunnah,
origins of the Sharicah. As far
one
scopes,
upon.
al-fiqh. Clearly the strongest out of these nineteen
sources
is
disagreed
are
benefit
or
the
if
theory of an
Sunnah which
thought of by the use
of
the
theory of al-masalih al-mursalah,
is
the
injunction that will be executed and not this
in that
case
theory simply because the injunction comes from the
primary
source
secondary
whereas the theory in question is a
source.
the Qur'an
or
Moreover,
Sunnah
are
the ordinances either from
not meant
to harass
people
deprive them of their rights and legal benefits
as
or
the
Qur'an states clearly: "And
(God)
has imposed no difficulties on you in
24
it
religion";38 and
also
the
"When
Prophet is reported to have said:
command
I
according to
It
the
of
you
your
to do something do it
ability".39
without saying therefore
goes
that the nature of
theory of al-masalih al-mursalah in the strict sense the
terminology is limited within the environment of which
benefits
neither
have
origins of the Sharlcah benefits
should
be
been
dealt
with by
cancelled by them.
nor
independently judged by
a
the main The
mujtahid and
weighed out without referring to previous experience, simply because when bearing the
same
analogy and
ceases
al-mursalah. made
rules
in
new
cases
causes,
the
the whole exercise develops
to work under
Islamic
The
best
referred to old ones
are
into
the theory of al-masalih
understanding is that God has
way
to fit the lives of people by
providing general principles and guidance and has left out
details
the
themselves sense.
He
of
things to be discovered by the people
through observation and the use of common has
dealt
with
general and has left the
human
the
primary issues of life in
the secondary ones to be tackled by
beings themselves
(as a mercy to them and not
through forgetfulness or failure). "0
38 O
Q
ye
Qur'an,
The Qur'an says:
who believe! Ask not questions about things
22:78 _
—
Reported by al-Bukhari and Muslim
25
which may
cause trouble. But if you ask about things when the Qur'an is being revealed, they will be made plain to you, God will forgive those: for God is Oft-forgiving, Most Forbearing. Some people before you did ask such questions, and on that account lost their faith".40 The
Prophet is also reported to have said: "...And
(God)
has kept silent over some things as forgetting them, so do not
mercy to you without ask about them".41 a
1.10
LEGAL
ORDINANCES
follows
It
al-masalih
that
IN
the
al-mursalah
THE
QUR'AN AND SUNNAH
sphere in which the theory of
could
operate
Qur'an and Sunnah
are
ordinances
of
Qur'an and Sunnah which deal with
issues
quite scanty compared to the injunctions which
are
with
deal
purpose every
the
other
silent.
is that in which the
In
fact
actual
aspects of life in general.
of this is to give enough
room
the
The main
to accommodate
benefit possible without the need of altering
anything in the main structure of the Sharicah. Qur'an, each
legal
and
for
instance,
every
rule,
has
not
The
into detail of laying
gone
but instead it has just laid down
general principles for the legislation of practical rules whether
in matters
criminology
or
economics. We limited its
the
Qur'an has
(i)
its legality:
40 44
Qur'an,
concerning civil rights, constitution, see,
rules
5:104-5
Reported by al-Bukharl
26
for example, to
four
in trade
things only:-
"...And God
has
permitted trade and forbidden
usury...";42 (ii)
the condition of mutual agreement:
"0 ye
who believe! Eat not your property among yourselves in vanities: but let there be amongst you traffic and trade of mutual good-will...";43 the act of witnessing:
(iii)
"...And take witnesses whenever commercial contract...";44 and
(iv)
believe! When a call is made for the Friday, rush for the rememberance of
ye who prayer of
civil the
in
trade...".45
and leave
Whereas
make a
its prohibition:
"0
God,
ye
find,
we
rights
rules
one
for example,
in the Egyptian code for
hundred and twenty rules for trade;
concerning trade in detail
Islamic
are
still
jurisprudence which differ from
one
and
numerous
school
system to another.
In
connection with
Qur'an has every
just political institution;
44 45
46
and
"...And
ask
consult
them
"And
43
constitutional
Qur'an,
matters
the
confined itself to three major principles
consultation
42
the
those
4:29
Ibid.,
2:282
Ibid.,
Surat
Ibid.,
3:159
(i)
counselling: God commanded the Prophet: for in
who
(God's)
forgiveness for them; and
affairs
(of
answer
the
2:275
Ibid.,
these are:
for
al-Jumucah:9
27
moment)...";46
call
of
their
Lord
and
establish
worship, and whose affairs by) counsel among themselves...";47 (ii)
are
(decided
justice: commands
"God
to render back the trusts to they are due, and that when you judge between people you judge with
those
to
you
whom
justice...";48 and
(iii)
believers
"The
between
peace
The has
not
equality:
Islamic
but
are
for
understanding of this is that the Qur'an
into details concerning legal rules in
gone
so
to
as
give
an
ample space for
generation to acquire what is beneficial and decide
themselves
their
therefore make
brethren...".49
your
constitutional matters every
brethren,
environment
In
is
what
and
connection
with
itself
offences:-
(i) murder:
it
does
to
not
to
them
according to
situation.
restricted
"And
suitable
punishments,
five
the Qur'an has
punishments for five major
behove
a
believer
to
kill
a
believer;
but (if it so happens) by mistake, (compensation is due): if one so kills a
believer,
it
is ordained that he should free
a
believing slave, and pay compensation to the deceased's family, unless they remit it freely. If the deceased belongs to a people at war with you, and he was a believer, the freeing of a believing slave (is enough). If he belonged to a people with whom you have a treaty of mutual
47 48
49
Qur'an,
42:38
Ibid.,
4:58
Ibid.,
49:10
28
alliance,
compensation should be paid to his family, and a believing slave be freed. For those who find this beyond their means, a fast for two months successively (is prescribed): by way of repentance to God; for God hath all knowledge and wisdom.
all
If
a
man
kills
a
believer
intentionally, his
recompense is Hell, to abide (for ever): and wrath and the curse of upon him, and a dreadful penalty is prepared for him";50 therein God are
(ii)
theft:
"As
to the thief, male and female, cut off his or hands: a punishment by way of example from for their crime: and God is Exalted in
her
God
Power";51 (iii)
transgression:
"The
punishment of those who wage war against God His Apostle and strive to make mischief on the land is only this, that they should be murdered or crucified or their hands and their feet should be cut off on opposite sides or they should be sent into exile from the land; this shall be as a disgrace for them in this world, and in the hereafter they shall have a grievous and
chastisement";52 (iv)
adultery:
"The
woman
and
fornication,
the
guilty of adultery or flog each of them with a hundred man
stripes...";53 and
(v) "And
slander of chaste those
who
launch
women:
charge against chaste four witnesses (to support their allegation),- flog them with eighty stripes; and reject their evidences ever after,
women,
for
50 51
52
53 54
Qur'an,
Ibid., Qur'an,
a
and produce not
such
men
are
wicked
transgressors".54
4:92-93 5:38 5:33
Ibid.,
24:2
Ibid.,
24:4
29
It
kinds
can
of
noticed here
be
offences
that
crimes
and
the
have
upon
by the responsible people in
they
see
fit for their benefits
with
the
principle:
"The
connection with
In
limited
itself
the
wealth
rich of
"And For
and
those the
(for
the
rich
the
every
poor
decided as
for
an
injury is
an
The
the
rules
Qur'an has
by
to a share in the wealth
right of
enunciated
in whose
be
generation
economic matters
state.
is
to
to go hand in hand
as
its multifarious
from
left
many
degree)...".55
establishing the right of of
been
recompense
(in
injury equal thereto
punishments of
is
by
poor
many
over
verses
the
such as:
recognised right. who asks and him who is prevented reason from asking)";56 wealth
a
(needy)
some
"By no means shall ye attain righteouness unless give (freely) of that which ye love...".57
ye And the
the
right of the
state
"And
is know
decided that
poor
by
out
to a share in the wealth of
verses of
all
-
such as:
the
booty that ye may (in war), a fifth share is assigned to God, - and the Apostle, and to the near relatives, orphans, the needy, and the
acquire
wayfarer...";58 "Alms
for
the
poor and the needy, and those employed to administer the (funds), for those whose hearts have been (recently) reconciled (to truth), for those in bondage and in debt, in the cause of God, and for the wayfarer; (thus is it)
55 56 57 58
Qur'an,
are
42:40
Ibid.,
70:24-25
Ibid.,
3:92
Ibid.,
8:41
30
ordained
by
could
It
God...".59
be
also
discovered
injunctions of the Sunnah, limited
to
three
that
the
like those of the Qur'an,
categories only:-
(i)
seller
and
concerning
the
they depart (i.e. reject it)";50 (ii)
e.g.
is reported to have said:
the Prophet
"The
are
to establish and
emphasize the injunctions of the Qur'an, trade,
legal
buyer have an option before either to accept the deal or to
to examplify and elaborate that which has been
ruled
by the Qur'an,
e.g.
the Prophet is reported to have
said: "The
value
of
the
the
compensation to the family of hundred camels, ten thousand
person slain by mistake, as a or one thousand golden dinars, or dirhams of silver";61
(iii) is
to give a new rule in a situation where the Qur'an
silent,
e.g.
the saying of the Prophet on the
representation of the Muslim community
on
legal matters:
"The Mulims are their contracts,
(all) liable to the conditions of except a condition which legalizes an unlawful thing or a condition which illegalizes a lawful thing".62
This
59
Qur'an,
illustrates
how
the
Qur'an and Sunnah have
9:60
rr n
«•»
Reported by al-Bukhari, Muslim, Abu Dawud, Ahmad
ibn Hanbal,
Malik
ibn Anas and al-Darml
r I
DJ-
62
al-Tirmizi,
__
Reported by Abu Dawud,
Reported by al-Bukhari,
al-Nisai and Malik ibn Anas
al-Tirmizi and Abu Dawud
31
al-Nasai,
given broad lines to the tackling of the legal problems
leaving
much space to accommodate every sensible
so
legislation which considers public interest in the strict sense
of
the
word.
al-mursalah
has
useful
to
tool
a
In
this
the theory of al-masalih
way
It stands as a
great role to play.
faqih without which his potential to
a
solve
new
problems according to the Sharlcah could not
work.
The
Qur'an and Sunnah have not mentioned all
cases
known
answers
gives
to
scope
to
all
for
mankind and
thus
have
not
legal
given ready made
possible problems which could occur. a
mujtahid to find
questions of the society.
For
the
answers very
This
to the daily
nature of the
theory of al-masalih al-mursalah demands that a mujtahid consider
unrestricted
benefits
in
has
to
and
according to the intentions of the Lawgiver.
the
32
the
light
Chapter 2 THE
SCHOLARS
AS
POSITION TO
THE
OF
AL-MASALIH •
In
search
our
in
scholars
the
al-masalih
in
Islamic
OF
THE
THEORY
OF
position of the early Muslim the
application of the theory device
of
decision making
it would be useful for
us
to look
al-mursalah
Law,
MUSLIM
EARLY
AL-MURSALAH
•
connection with
of
the
for
THE
UTILIZATION
as
a
into
history of Islamic Law in order to find out the
attitudes
of
the
early Muslim scholars towards it.
Although the theory of al-masalih al-mursalah was by then known
not
as
a
technial
it
term,
was
actually applied in
general terms in the legislation of the Sahabah
(the
Prophet's Companions). After looking at this general application,
we
followers
the
between to
of
the
shall investigate the position of the Sahabah
Sahabah
and
who
were
those
who
intermediaries
the
after
came
them
so
as
complete the chain till the advent of the Imams of the
major schools of thought
2.1
A.
THE
POSITION
OF
(jurisprudence). COMPANIONS
THE
OF
THE
PROPHET
[SAHABAH] There that
the
several
Sahabah
al-mursalah
without
are
and
used
evidences the
istislah
the
justify the view
concept of al-masalih as
a
device
of
legislation
defining it. They have always looked for the
corresponding hukm (judgment) of which
which
took
cases
resembling those
place at the Prophet's time for issues which
Sharicah has
not
given
any
33
injunctions.
However,
if
they did net
ever
in
time
the
the
of
find anything corresponding to the
the
they in fact depended upon
theory of al-masalih al-mursalah for the enactment of
laws
although that theory had not yet been presented in
any
elaborate form.
not
hesitate
appeared to the
of
Prophet,
to
The Companions of the Prophet did
adopt and legislate
intention of
the
example of
al-masalih
cUmar
ibn
the
al-mursalah al-Khattab
blood the
in
fact
upon
his that
fell within the general
Sharlcah.
in
by the Sahabah is the verdict of
killing an
a
individual
verdict it
had
as
the
been
a
group
of people who
nullification
of
acquittal by virtue of them being arisen
human
so
much
decision.
of
the
a
his
basis
considered
have
Were
individual to be crime group,
a
and
an
then there
killing in the society and loss
rights, apart from the discarding of the law of
qisas which had been enunciated by the Sharlcah. also
cUmar
(in qisas).
the benefit of the preservation of people's
an
would
of people who had
group
participated together in killing as
range
theapplication of the theory of
co-operated in killing
depended
rule on whatever
a
benefit and had not been mentioned by
possess
Qur'an and Sunnah but
An
of
cases
would
insofar
as
killed,
a
That
have
meant
opening the door to such crimes
when
there
was
group
a
desire
of people could
for
come
somebody to be
together to kill him
knowing that reprisal would have only been taken against individuals
and
not
groups
(as was the case in the time
34
of
ignorance mentioned
not
in
his
the
jahiliyyah).
-
in
verdict
the
is
Nevertheless,
Qur'an clear
a
or
Sunnah.
So,
this rule is what
ctJmar did
example of the application of
theory of al-masalih al-mursalah since there is no
injunction in the Sharicah which commanded that, and is
evidence
B.
of
its
type on which analogy could be
to.1
applied 2.2
found
no
POSITION
THE
REGARDING The
TO
THE
Tabicin
TABICIN
OF
THEORY
OF
follwed
{THE FOLLOWERS OF SAHABAH} AL-MURSALAH*
AL-MASALIH •
the
•
path of the Sahabah in
applying the theory of al-masalih al-mursalah to
new
problems which they confronted. A conspicuous example of the
TabicIn's application of
the
method
of
which
Sahabah
the
cUmar
who
is
the theory in question is
ibn cAbd al-cAziz also
considered
(a great the
as
fifth
rightly guided Caliphs of Islam) used in solving problems,
follower of
the
so many
especially in returning people's possessions
(wealth and land)
to the owners after
unjustly by the Umayyad rulers. He
they had been taken
just content with
was
slight evidence of the wronged party to verify the truth of
his
claim
Without
any
to
property without going into
shadow of doubt, his method
was
details.2 based
on
the
theory of al-masalih al-mursalah.
1
See
2
Al-ictisam, vol. 2, p. 107; al-furuc cala al-usul, pp. 107-109
al-Shatibi,
Takhrij
M.A.Saleh,
op.
cit.,
p.
479
35
see
also al-Zinjani,
Another
al-masalih
cUmar
example of the application of the theory of by the Tabicin is also the
al-mursalah
cAbd Al-cAziz had established hostels
ibn
accommodate
travellers
way
to
throughout the seasons of the
2
This act
year.
neither practised at the time of the
was
Prophet nor even at the time of the Sahabah; idea
of
difficulties
C.
THE
THOUGHT
AS
After and
and
POSITION
of
in order
THE
must
fully
OF
OF
of
relation
schools be
IMAMS
THEORY
was
based
THE_SCHOOLS OF
AL-MASALIH
the
to
the
AL-MURSALAH
position of the Sahabah theory of al-masalih
examine the position of the great of
thought in Islamic jurisprudence
aware
of the general application of
theory under discussion.
Some ambiguities have arisen
identifying the viewpoints and the position of
Imams on
to
in
we
the
OF THE
examination
our
TabicIn
the
Imams
in
travellers'
the
ease
provide them with services
REGARDS
al-mursalah,
the
to
the theory of al-masalih al-mursalah.
upon
2.3
hostels
these
the whole
in
the
this
issue;
eg.
some
the position of Imam al-ShaficI
validity of al-masalih al-mursalah
as
a
device of
legislation, and the standpoint of Imam Abu Hanifah in
using istihsan in the place of the theory of al-masalih al-mursalah
&
M.A.Saleh,
4
M.S.R.
p.
381
in
most
of
op.
cit.,
p.
al-Buti,
Dawabit
his
expositions.
4
479 al-Maslahah
36
fl al-Sharicah al-Islamiyyah,
2.4
IMAM
{THE MALIKIS} AND AL-MASALIH AL-MURSALAH
MALIK
Malik
Imam
[d.
179/795]
is known
as
being in the
vanguard of those who apply the theory of al-masalih
istislah it
from
their
in
al-mursalah
legal transactions.
is mentioned the
first
the
one
to
Whenever associated
be
great Imams is Malik ibn Anas.
with
He was so
deeply drawn to this theory that he is even claimed to be the
elaborated
who
one
by
al-Shatibl.5
or
a
was
Malik
mujtahid who indebted
al-mursalah
in
-
as
legal principle as noted
a
that an interpreter of Sharlcah
saw
versed in Sharlcah and its origins
was
the
to
it
knowledge of the theory of al-masalih
order
to
distinguish between different
types of benefits and have a clear conception that any benefit
which
intention
is
conflicts
with
cancelled.6
the
Imam
permitted the imprisonment of a
judge through analogy to be
Sharlcah
Malik
is
its
or
also
said
to
have
suspect who is thought by
a
guilty.7 Imprisonment is
a
heavy punishment and should not be applied to a person
just by saw
simple accusation.
a
that
the
considered
attainment
the
of
Nevertheless,
Imam Malik
justice is paramount,
imprisonment of
a
and he
suspect was a means of
attaining this justice.
5
See
al-Qatafi,
142-144;
vol.3, 6 7
p.
Malik,
Tanqih al-fuhul
in al-Dhakhirah,
66
Al-Shatibi,
Al-ictisam,
M.A.
op.
Saleh,
vol.
1,
pp.
by Abu Zahrah, p.290; Al-rasail by Husain al-Khidr,
cit.,
p.
vol.2,
p.114
481
37
Maliki
The
al-masalih
school
in
funds
purposes. the
in
al-mursalah
being threatened by of
has
the
an
applied the theory of the
enemy
question of while there
a
Muslim land
was
a
deficiency
exchequer to prepare soldiers for defence
A group of Andalusian scholars has
resorted to
public benefit side of this issue and has produced
verdict
a
allowing the leader of the country concerned to
put extra tax on the rich people in order to equip the army
with the
armament for the defence of the
necessary
country.
This tax
poor-rate
(zakat) which is compulsory and required by the
Sharlcah.
Those
danger of
a
considered
foreign attack, preserve
Another
case
where
al-mursalah
prisoners of field
a
the people's independence was a
Malikis
the was
when
hindrance
action would
prisoners of to
8
the
between
allowing the shooting at the that
the
fact
war that
Husein al-Khidr,
repel the
to strengthen the state's
applied the theory of enemy
end
who if
up are
the
—
Al-rasail,
army
put Muslim army
him and
The Maliki school gave its verdict
army.
to
in the front line of his
war as
that
the legislation of an extra tax.
strong reason for
battle
in addition to the ordinary
scholars
security and to
al-masalih
was
of
an
the
on
the
Muslim
in this issue enemy
even
if
with killing those Muslim the front
at
Muslim army
vol.
3,
38
p.
67
line.8 This
was
ceased to shoot at
due
the
of the enemy because of the fear of killing
army
those Muslim to
cause
captives,
great harm to the Muslim army and to the
a
people as a whole. situation order
to
2.5
THE
REGARDS
the public benefit in this
So,
with
lies
the
killing of those few Muslims in
save
the
lives
the
two
evils.
of
lesser
the enemy would use this loop-hole
POSITION
OF
AHMAD
the
IBN
be
the
second
person
theory in legislation, consider
it
as
legislation.9 Ibn
Imam
could and
is
of
one
Hanbal
that
Thus,
Imam
Ibn
which
maslahah
within
Qur'an,
the
that
al-masalih al-mursalah
was
M.A.
Saleh,
op.
ijmac
Sunnah,
recognized by him
special meaning.
a
as
a
basis
for
In this case the the
enactment
even
-
ijmac and qiyas. before
the
specification of
descriptions and terminologies in the field of the
9
of
for their argument is that
general origins of the Sharxcah
Sunnah,
However,
devices
incorporated in the general term of
was
considered
was
is considered
in applying this
Hanbal's
the maslahah which
analogy to formulate
the
Imam Malik
reason
considered
241/855]
only come within the terms of Qur'an,
qiyas.
rules
[d.
Hanbalite scholars do not
some
The major
{THE HANBALIS} AS
AL-MURSALAH
•
after
the
i.e committing the
-
HANBAL
•
Although Imam Ibn Hanbal to
many
OF'AL-MASALIH
THEORY
THE
of
cit.,
p.
482
39
of
i.e
marhalat
Islamic
of
structure
al-takwin
jurisprudence which
(the period of formation),
generally taken to encompass the
time
the
second
of
the
came
a
wide
range
after analogy
of meanings at
beginning of the period of the Imams in
century of Hijrah. Most of the Hanballs
including Ibn Taymiyyah and his student Ibn Qayyim detailed
attention
emphasis
on
Sharicah
was
to
analogical issues. They put
gave more
the general objectives and intentions of the
and
attempted to give definitions
upon
which
legitimate analogies could be based and from which
judgments would intentions
of
which emanated from the
emerge,
Sharicah.10
the
Among the examples of the application of the theory of
al-masalih
that
which
case
of
the
the
the
Sultan
God.
reported to
us
by Ibn Qayyim in the
doubt
on
the
casts
he
be
does
ruler
seen
be
punished by the
and the ruler should make him repent to
repents for it,
the
Ibn
Ibn
of
Imam Ibn Hanbal considered
action must
that
truthfulness
here
well and good,
but if he
is obliged to repeat the that
the
punishment.11
demanding of repentance and
repetition of the punishment by the ruler is
Badran,
so
who
who
(ruler)
If
can
the
11
been
one
one
doesn't,
1®
has
by Imam Ahmad ibn Hanbal is
Companions of the Prophet.
that
It
al-mursalah
Qayyim, Iclam Al-muwaqqicin, vol. Al-madkhal,
p.
Qayyim, op.cit.,
138;
Abu Zahrah,
vol.4,
p.
1, pp. 29-33; cAbd al-Qadir Ibn Hanbal p. 297
377; Abu Zahrah,
on
40
a matter
Malik,
p.
300 and
of
the
application of the theory of al-masalih
al-mursalah
for that
(nass) is
since
just done from
Ummah
as
neither
a
binding ordinance
is there any evidence from qiyas.
nor
so
is
there
to preserve the unity of the Muslim
disintegration and in order to appreciate the
position of the Sahabah who passed the Sharicah Muslims to
from
the
Muslims
the
needed
be
to
allowing the ruler to forgive
attained
by meting out
a
responsible for it
person
stipulated by Imam Ibn Hanbal.
2.6
IMAM
ABU
AL-MASALIH •
would
consider the
their
name.
name
the
devices
that
But
for
seem,
AND THE THEORY OF
at
first,
that
the Hanafls
theory of al-masalih al-mursalah of
the
what
as
does
truth
is
amounts
[d.
not
mention
that to
the
the
this
two
one
of
theory by this
difference
same
is
technique.
only in the In fact
Imam
150/767] puts forward the doctrine of
(equity) and considers it
as
one
of the bases of
legislation. Muhammad ibn al-Hasan al-Shaybani the
do not
legislation in Islamic Law due to the fact
school
Hanlfah
istihsan
{THE HANAFIS)
HANIFAH
AL-MURSALAH
•
It
Abu
to the
In doing so there is maslahah
Prophet.
which
on
punishment to prevent such disintegration and not
severe
as
It
great companions of Abu Hanlfah)
"The
(one of
says:
companions of Abu Hanlfah were at loggerheads with him (i.e Abu Hanifah) when dealing with analogical issues but when he talked of istihsan no one quarrelled with him any
41
.12
more"
about
of
binding
nass
in
be
found
drawn
are
is
used of
from the Qur'an of
in most
in
maslahah
that
qiyas,
either
were
utilization are
built
which from
do
the
not
for
Thus it
(maslahah).
the
the sole basis and
objective
be
of
or
because customs
people's life. Thus, the Hanafi
found that,
analogical issues based
name
of
customs
place,
ijmac
shed light on the
of
one
or
within the Hanafi School
full
in
with any
Sunnah
or
by Abu Hanifah,
benefits
cases,
conflict
Qur'an
scope
maslahah
in most
would,
from the Sunnah,
or
It is appropriate to mention here
given great
of
situation void
a
intentions
the
Customs as they are
system.
in
i.e the attainment of benefits and the
customs
ordinances
inference
supplementary rules which
of
terms
prevention of injuries. also
the
talking
was
the criterion used on
public benefit of
strong
a
for the method of istihsan,
up
Sharlcah,
the
of
strong inference,
a
favour
that
selection
Indubitably,
weak one.
a
of
would
which Imam Abu Hanifah
the
on
selection a
is
based
was
against the
istihsan by
the
Now
on maslahah
and the
name
it
books
are
but using the of istihsan in
another.
If maslahah
we
go
as
1
was
dealt
with
—
M.A.
p.
it
deeper into what
Saleh,
we
have discussed about
by Imam Ahmad ibn Hanbal we
—
Masadir al-tashric al-Islami
484
42
wa
manahij al-istinbat,
find
th it
the
at
beginning of the four great Imams'
he term "maslahah" did not attain a precise and a
period
standard definition, Hani,fah
Abu
laid
This
deduction.
but
find
also
that
an
that
the
theory of al-masalih in
role
enormous
the
analogical
methodology of Imam Abu Hanifah provided that
particular maslahah did not ordinance
from
Hanifah could advocates
of
the
be the
Qur'an
or
considered
Sunnah. to
term
be
one
theory of al-masalih
"istihsan"
instead
of
Among the many examples of
a
into conflict with
come
according to the analysis given above the
Imam
great emphasis on the process of means
al-mursalah had
further
we
Thus, of
any
Imam Abu
the
great
al-mursalah even
al-masalih
though he used
al-mursalah.13
Imam Abu Hanxfah's
application of the theory of al-masalih al-mursalah in his
analogical deductions is his verdict to take the
value
of
produce before its production without fixing a
a
particular period; deal
for
changes to a normal transaction where a reservation exchange in commodity and its value has to be
observed,14. See
14
pp.
So,
the consideration of maslahah
in making
Al-ictisam, vol. 2, p. 324; Abu Zahrah, Abu Mustafa al-Zarqa', Al-madkhal al-fiqh al-cam, vol.
al-Shatibi,
Hanifah, 1,
but once the duration is fixed the
p.
372;
60-76
in "Badaic Al-sinaci" by al-Kasani, vol. 4, p. 223, period is fixed for the produce, it becomes a normal transaction whereby a condition of exchange should be stipulated, i.e taking the value for the goods hand in hand; and this is what Abu Hanifah says" "if
It
a
is
noted
certain
43
the
people's affairs and transactions simple is the sole
basis
of
the
verdict
of
Imam
Abu
Hanifah
in
the
above
case.
Another the
example in which Imam Abu Hanifah applied
theory of al-masalih al-mursalah by the name of
istihsan
was
his
view of
holding
a
sharing employee
responsible for damage occurring in his work. This even
had
as
was
so
though the work of this employee differed from what been
stipulated in the agreement between him and his
employer;
except that which was damaged without his
intention
eg.
by theft
or
death.
In that case he had to
produce evidence for his claim, and his word would not be accepted except through that evidence.
reported by al-Sarakhs! the
Hanafi
school
"If
a
Abu
Hanifah,
This
was
what was
(one of the great propounders of
system)
when he said:
sharing shepherd herds sheep, according to he is responsible and liable to pay for any damage caused by him to the sheep since the participating employee is responsible for ".15 what he does with his own hands
It
is
noted
example,
here,
has
been noted
a
the
of
maslahah
for
the
sharing employee bases its foundation the
-
Al-Sarakhsi,
on
people and the necessity of these
development and the prosperity of their
lives.
is
in the previous
that the case of the responsibility and
liability of
demands
as
-
Al-mabsut,
vol.
15,
44
p.
161
2.7
IMAM
{THE SHAFICIS}
AL-SHAFICI
AND THE THEORY OF
AL-MASALIH AL-MURSALAH •
•
It
due
was
204/819]
standpoint of Imam al-Shafici
the
to
in regard to istihsan
his
books:
has
come
al-Risalah,
in
(nullification of equity) that
this
Imam
al-mursalah
as
Nonetheless, al-ShaficI
did a
the
is
not
of
Ibtal
device
of
legislation in Islamic Law.
istihsan which has been denied by Imam the
as
same
we
that
as
which
al-mursalah.
istislah
al-mursalah.
as
Moreover,
(public good)
What
Imam
has
been
applied
have seen when we talked about
legislation to which Imam al-ShaficI neither
al-Istihsan
that made many people believe
standpoint of the Hanafi school al-masalih
manifested in
accept the theory of al-masalih
not
by Imam Abu Hanifah the
as
al-Umm and especially that which
entitled
book
the
(equity)
[d.
nor
regards the theory
the method of was
opposed
was
al-masalih
al-Shafici opposed was
"the
following of lusts and passions which result in going astray from the ordained injunctions
innovating laws which Qur'an came
or
his "He
Sunnah famous
who
laws".16
^
or
(nusus);
and
not decreed by either
are
ijmac
or
qiyas"; and for
the
this
utterance:
applies istihsan is really innovating
Al-Shafici, Al-risalah,
p.
186
45
reason
However,
we
learn from
statement of
a
one
great disciples of the
Shafici school system
al-Haramayn al-Juwayni
(d.
478 A.H.):
-
of
Imam
"that he who
al-Shafici's explanation will find that he
follows
the
(i.e
al-Shafici) accords judgments with public benefits; and whenever
find
doesn't
he
accordance
that
he
turns
to
principles of resemblance". Al-Juwayni went further by elucidating that whatever al-ShaficI stipulated in his
judgments, al-masalih al-mursalah
its equivalent is
or
innately envisaged. Al-Juwayni also added, and
of
most
the
Hanafi
school
"al-Shafici
system embrace the view of
attaching judgments to the theory of al-masalih with
al-mursalah
sole
dictum
dependence
circle That
is
of
condition
of
suitability to the
benefits".17
considered
The
the
the
that
on
al-Shafici
was
opposed to was the
benefits which did not fall within the
Lawgiver's
common
usage
and acknowledgment.
why we see Imam al-Ghazali saying in this
connection:
"Every benefit which does not preserve the understood from the Qur'an, Sunnah and ijmac, itself being one of the alien benefits which do not agree with the intentions of the Lawgiver, is void and nullified; and the one who resorts to it has already made himself a lawmaker (i.e. a rival with God)".18 intention
The
17 -1-®
thing which Imam al-Shafici recognizes in the theory
Al-Shawkani,
Al-Ghazali,
Irshad Al-fuhul,
Al-mustagfa,
vol.
p.
242
1,
p.
46
310
of
al-masalih al-mursalah
the
considered
benefits
is
therefore
which
Sharicah and the enactment of which
terms
accepted In
and
a
have
not
been
are
dependence of
a
accepted by the
laws
connected
considered by
with
them
in
the Lawgiver as
cancelled.
or
the
7th
of
member
al-zanjanl
century A.H a scholar of Arabic Language Shafici school,
Shihab al-Din Muhammad
(d.656 A.H.), presented the position of Imam
al-ShaficI
regards the theory of al-masalih
as
al-mursalah
by the following words:
"al-ShaficI held the opinion that
it is right to
steadfast to the benefits which have reference to the general principles of the
hold
Sharicah
even
though not closely connected to a
particular section of this
Does
not
al-masalih
mean
the
al-mursalah
it".19
utilization which of
of
course
the
is
theory of a
principle not
closely connected to a special part of the Sharlcah?
of
One
the
examples in which al-Zanjani gives to
explain al-Shafici's acceptance of the theory of al-masalih
killing
group
"
in of He
is
his
adoption of the idea of
of people who have killed
by cUmar
decided
as
19
a
al-mursalah
an
individual
ibn al-Khattab. Al-Zanjani
says:
and this
killing a group of people for one person case, according to al-ShaficI, is an act aggression and injustice in its true sense".
still
goes
Al-ZSnjani,
further elucidating the point by saying:
Takhrij al-furuc cala al-usul,
47
p.
169
if similarity
"Truly,
the whole
case,
were to be observed in this issue would result in
blood-shedding and massive killing. Whereas the practice commanded by the Sharicah is to kill a group of people for a group like it, and an individual for an individual; nevertheless, wait for such an occurence would render the
to whole
practice unjust and inapplicable. The justice in this case is therefore to apply severity to the wrong incurred; thus, to kill a group of people who have killed an individual is an obligatory act in order to repel a gigantic injustice. In so doing a public interest which has not been enunciated by a particular principle in the Sharlcah
is maintained.
benefit
The
is
neither
injunction of the Qur'an nor the Prophet; but it has only depended upon the general outlook of the Sharicah i.e to safe-guard its canon and rule from the danger of massacre, to exaggerate its detestation towards unjust killing and to preserve mankind from anguish and annihilation". dependent
upon an Sunnah of the
Al-ZanjanI
goes
further saying:
"Daily happenings know no boundaries and so should their rules and judgments; and to confine oneself to particular principles from which restricted meanings and causes are derived would that
mean
the
use
should
nothing could face the extremist except
of similar methods. Therefore, there be another methodology of accomplishing
particular rules in a general mode though not connected to a particular principle; and this is possible only by the general utilization of benefits
attached
to
the
Sharicah and its
intentions".20
example whereby Imam al-ShaficI applied the
Another
theory of al-masalih book
Al-umm
concerning witnesses'
testimony. He "If
in
testify that
—
Al-Zanjani,
renouncing their
says:
witnesses
_
al-mursalah is as mentioned in his
op.
cit.,
pp.
170-71
48
a
man
divorced his
wife
times
three
that
judge revoked the marriage; then the witnesses renounced and abandoned their testimony, the judge had to impose a fine on them an amount equal to the wife's required nuptial gift(if the husband had had a sexual contact with her), but if he hadn't had any sexual contact with her, the judge will fine them an amount equals to the half of her required nuptial gift. This is because they have forbidden her deserves
so
from her
a
husband
and
therefore
she
equal to her required nuptial gift. The judge should not inquire into the actual amount given by the husband (at the time of marriage) as nuptial gift whether small amount or large, but he should rule according to the amount cherished by the jurists (i.e an amount equal to another woman's required nuptial gift who is of her status), and so he should make a decision on that value".21
It
can
amount
an
be
noticed here
by Imam al-Shafici in the the
witnesses
is
the
that
what
process
has
been
observed
of imposing a fine on
dependence of the benefit of the
wronged husband, and this benefit lies within the circle which
the
Lawgiver demanded to be preserved and
considered;
depend this
on
way,
those
who
in his
an
even
though this particular benefit does not
ordinance from the Qur'an
or
Sunnah.
applied the theory of al-masalih
interpretations of
GENERAL At
21
Imam
in
Imam al-ShaficI can be reckoned to be one of
number of
a
al-mursalah
cases
recorded from
him.
2.8
So,
this
CONCLUSION
point
al-Shafici,
we
OF
are
Al-umm vol.
FOUR
THE
IMAMS'
ATTITUDE
able to summarise the
7,
p.
49
50
fore-going account of
Imams
the
follows: That the four celebrated
as
school
systems,
Malik, Ahmad ibn
viz.
Abu Hanifah and al-Shafici,
Hanbal,
as
noted from their
expositions and impressions, do accept the theory of al-masalih al-mursalah Islamic Law
as
a
of
means
legislation in
inspite of their difference in the method of
application and degree of utilization. Everybody gives it a
different
As
name.
we
have
al-Zanjani
seen
propounder of the Shafici school system) killing of
a
of people for
group
an
(a
considered the
individual
as
an
application of the theory of al-masalih al-mursalah in al-Shafici's
judgments, whereas the Hanafis take the
decision
upon
but
the dependence of istihsan
same
(equity).
Although the judgment given by both of the school systems is
the
one,
name
given to the methodology is
degree of dissimilarity,
A
amongst these Imams the
however,
ibn
Ahmad
Hanbal
is observed
in the extent of the utilization of
theory of al-masalih al-mursalah;
paramount one is
different.22
Imam Malik after
ibn Anas,
which
come
the
the leading and the
followed by Imam two
Imams
Abu
Hanifah and al-Shafici.
prominent example of those who explained this
A
issue
22
See
is
Ibn
Daqiq al-cId (an apologist of the Shafici
—
al-Sarakhsi
detailed
in
his
book
Al-mabsut,
discussion
50
vol.
26,
p.
126,
for
a
school
system)
"The the
truth
who said the following: without
is
doubt
that
Imam
Malik
is
most
likely person (to apply the theory of al-masalih al-mursalah) of any of the Imams. After him follows Imam Ahmad ibn Hanbal; but this does not exclude the other two Imams in the •
•
general application of the theory, except the former two Imams have a preference for its utility and application over the latter ones".23
Al-Qsraf! said
(an apologist of the Malik!
school system)
regarding this issue: "There are some people who oppose the theory of al-masalih al-mursalah, nevertheless, you will see them in their derivations (of laws) give account for absolute benefit without inquiring from themselves about the process of deduction and generalizations to produce evidence for such
consideration, but they depend solely on the proportion and suitability (of the cillah (cause); and this by itself is a real application of the theory of al-masalih al-mursalah".24 a
23 24
144
Al-Shawkani, Al-Qarafi,
Irshad al-fuhul,
pp.
242-43
Tanqih al-fusul muqaddimat al-dhakhirah,
vol.
1,
p.
Chapter DEVELOPMENT
THE
OF
THE
3
LEGAL
UNDERSTANDING
OF
MASLAHAH
3.1
LEGAL
A.THE
DEFINITION
Muslim
The
•
•
OF
MASLAHAH
lawyers have differing definitions of
maglahah and its specifications. the
word
"maslahah"
denotes
To al-Ghazali
(d.
1111)
"obtaining benefit and
preventing injury". He goes further adding after that, "We do not mean by interpreting maslahah as obtaining benefit and preventing injury only because
these
welfare
in
human
are
human
aims
concerned with
human
terms
only, whereas what we actually mean by maslahah is the preservation of the
aims
of
the
Shariuah.
aim of
The
the
Sharicah
in
regard to man is fivefold: viz: (i) to preserve his religion, (ii) to preserve his life, (iii) to preserve his mind (reason), (iv) to preserve his offspring, and (v) to preserve his material wealth. Everything which secures the preservation of these five elements is a ma slahah, and everything which jeopardizes them is a "mafsadah" (injury), the prevention of which is _
maslahah.1
a
It
could
difference the
of
be
between
definition benefit
intention which
said
and of
the
that
there
is
no
clear
cut
general meaning of maslahah and
given by al-Ghazali, because the obtaining the
the
prevention of injury is the real
Sharlcah.
Still,
there is not: anything
brings benefits and repels injuries that is not
encompassed in the intention of the Sharicah and is
1
A.M.
Reform,
al-Ghazali, pp.
Al-mustasfa,
vol.
92-93
52
1,
pp.
286-87;
Kerr,
Islamic
directly
or
indirectly connected with religion,
mind,
or
offspring,
or
it
does
or
life,
material wealth. Nevertheless,
or
happen that an individual person considers a
not
thing to be beneficial to himself while the Lawgiver it
considers in
Qur1
the
the
other
way
round? We read,
for
instance,
an:
"Fighting is prescribed for you, and ye dislike But it is possible that ye dislike a thing which is good for you, and that ye love a thing which is bad for you. But God knoweth and ye know not".2 it.
On
the
maslahah "It
other
hand,
al-Khwarizml
(d.850)
defines
by saying: is
the
preservation of the objective of the injuries to human beings".3
Sharicah to prevent Maslahah
the
or
Sharlcah does
preservation of the objectivity of the only mean the prevention of injuries to
not
human
beings because this is
other
aspect which is equally important
side the
of maslahah Islamic
-
the
2
3
Qur'an,
aspect of it only.
The
is the positive
obtaining of benefits. Although
juristic principle has stressed the
prevention of injury by saying:
one
more
than the attainment of benefit
"Prevention of injury precedes the attainment
2:216
Al-Shawkanl ascribed this definition
to
al-Khwarizmi
in
his
book
213; Jamal al-Din al-Qasiml mentioned it in his commentary on the treatise of al-Tufi on masalih [Al-manar journal, M9, p. 747] without ascribing it to its auther; while the author of "Taclil Al-afrkam" has ascribed the definition to its auther but has "Irshad
not
Al-fuhul,
notified
p.
from which
reference
he
53
quoted.
See p.378 of
Taclil
of
benefit",
in reality they are two different
altogether and is
considered
be
and
nonetheless it
(d.660/1263),
that they
complementary.
as
in defining maslahah
However, al-Salam
same;
in order to understand them both,
necessary,
should
therefore not the
are
things
cIzz al-Din ibn cAbd
the Egyptian scholar,
puts a check
says: "He
who
wants
and
the
injuries,
the
weak,
has
visualization mentioned the
know
to
the
the benefits
rights,
strong amongst them as well as to review his mind with a
why the Sharlcah hasn't or judgment of a particular problem he is confronted with inspite of the fact that the Sharlcah manifested rules in which every single rule demands the subservience of human beings to their Creator and has not necessarily informed them of the benefit or injury of a thing in particular".
Then
he
goes
solution
to define benefits and injuries
on
"Benefits
to
as
are
four
kinds:-
their
and
needs
and happinesses and their causes.
causes;
Injuries
are also of four kinds:- pains and worries and their causes".4
causes
Elsewhere, benefits
real
"Benefits and of
the
are
4
I.
are
a
not
means
and
the
two
types:
inflict
allegorical real
Sometimes the commanded
are
they are injuries benefits,
such
cAbd al-Salam, Qawacid Al-ahkam, vol.
54
says:
(happinesses and desires),
injuries, they
secure
in which he
ones
(their causes).
because to
and their
cIzz al-Din ibn cAbd al-Salam discusses
allegorical
benefits
allowed,
saying:
or
"per se" but they
as
1,
causes
the amputation of
pp.
9-10.
thief's
a
before
the
the
all
meant
to
attain
they are
and security which is in
attain benefits
-
such
as
one
way
killing
deporting the unmarried adulterers etc. All
or
real
benefits, it
the one
benefits,
"ends"
Muslim
first
that
is
really
meant.5
lawyers have defined maslahah in this way
seven
centuries,
whereby they did not
general standard definition.
definition
difference
in
exclusively result
and they are called allegorical
although this seems to be calling them "means"
is
The
the
nonetheless,
injuries have been legalised in the Sharicah to
these
for
injury,
stoning the married adulterers and
transgressors,
when
the
legal punishments which are in actual fact
attain peace
to
other
lashing
to
protect people's wealth and the warning
pleasant due to their
enforced or
to
jihad to protect people's lives. As is also
with
case
not
hand
in
of
maslahah
their
.6
views
has
about
also
Their difference reflected
benefits
agree
on
the
inclusively
or
But this situation is not a necessary
every
condition.
Inspite of the difference of
opinion of these scholars in considering "public interest"
as
differ
the
5
Ibn
in
a
device of
decision making,
they never
recognition of benefit wherever it existed
cAbd al-Salam,
op.
cit., p.12
^
It is meant by this elaboration that what the Muslim lawyers have pointed out about the difference of Imams in the decision making process by putting into account "public interest", is that their difference is mainly caused by the specification of its indications.
55
and
did
From
it
Muslim
the
with
injury.
passion,
is it
nor
(i)
lawyers we learn:
however defined,
(benefit), a
confuse
not
is neither
that maslahah
sheer desire nor
a
personal objective;
a
and that is
why al-Ghazali insists that maslahah is the preservation of
the
intention of
the
prevention of injury is benefit
since
both
of
Shar1c<3h3 as
(ii) that the
important
which
as
constitute
the obtaining of
collectively the
meaning of benefit. This does not contradict with al-Khwarizml's the
of
restricting his definition of maslahah to
prevention of injury only, because the preservation the
intention
of
the
Sharicah already considers
positive aspect of benefit Perhaps,
all
and
and
(iii)
every
benefits
indirectly, viz:
negatively
that
sense
a
directly
that
or
life, mind, offspring and material wealth.
difference
scholars
in
that
benefit
whether
has considered
(God)
to the preservation of the five fundamentals,
no
and
to include within its
the Lawgiver
connected,
is
a
as
benefit in the Sharicah in
are
religion,
There
so
the objective and not to confine the intention
therein; each
i.e obtaining happiness.
-
this consideration has prompted Khwarizmi to
define maslahah canopy
the
and
whatsoever
of
whatever
therefore
opinion between the Muslim preserves
must
be
these fundamentals is
taken
into
consideration,
jeopardizes them has to be eradicated.
56
3.2
B.
AL-MASALIH
AL-MURSALAH
AS
A
MEANS
OF
DECISION
MAKING
has
It
already been noted that the theory of
al-magalih al-mursalah that
is
the
Sharicah is
for
social
utility, and its function
promote benefit and prevent evil.
to
Imam Malik
that
its origin to the conception
owes
one
of
and
names
the
approved the idea of public interest decision
of
means
this
new
device
According to MacDonald, al-mursalah,
cAbd al-Rahim,
it
is
somewhat
deduction
He
of
making in the
as
Shar!ce»h
al-mursalah".7
"al-masalih
the theory of al-masalih
corresponds to utility, while in the words
of
(istihsan).
As we have seen
the author
similar
juristic equity
or
preference
that Imam Malik would allow
says
law
to
of Muhammadan Jurisprudence,
be
to
based
public good. But it does not
on
a
general considerations of
appear
that the Malik!
jurists took full advantage of this principle, and it would
seem
Hanaf!
that
doctors
many
followers of that school like the
consider
the
doctrine
general to be useful in making legal
this
to
be
too
vague
and
deductions".8
interpretation of the text, according to
Ijtihad
or
theory,
is to consider the underlying
or
hidden
meaning of the revealed text in the light of the public interest.
^ O °
Abu
Qiyas
Zahrah,
(analogy)
Malik,
p.
is the primary method of
290
—
A.
Rahim,
Muhammadan Jurisprudence,
57
p.
166
tracing the effective is
cause
similar is
not
are
but
claimed
the difficulty arises when
The Orthodox Caliphs,
apparent.
have
to
resorted
discover
the
cause
words
the
revealed
of
traditions
of
the
with
reason
similar nature.
a
If the
apparent it will be admittedly extended to cases;
demands
of
cause
the
with
to
reason
reference
text,
to
the cause
in such and
the
the context
a
tried
case, to
meaning of the and the
Prophet. The application of this theory
interpretation of the text according to regard primarily to social utility. Here lies
the
major difference between the principle acted upon by
the
Orthodox
known
Cailphs and the
"hikmah"
as
use
of independent judgment
(act of wisdom).
theory base their
"qiyas"
or
Thus the users of this
analogy on "hikmah" which
they call the underlying reason of the text. (cause)
is therefore replaced by hikmah in this theory.
"Modern
convey the
rational
Kerr,
scholars,
says
Kerr,
are
anxious to
comprehensibility of the hikmah and its the
promotion of man's material interest.
lost,
we
In
the distinction between hikmah and cillah is the
must
latter
term
being employed to
former".9
meaning of the
Here
g
to
process
sometimes the
Muslim
the humanism of the Sharicah and tend to emphasize
relevance
this
"cIllah"
refer
Islamic Reform,
p.
to
the
67
58
twentieth
century
cover
cAbd al-Wahhab Khallaf who emphasizes the
commentator, social
utility of Sharicah. He draws cillah and hikmah.
between
only be suitable
a
sharp difference
"cIllah", he
says,
must not
(munasib) but also objectively
recognizable
(gahir) and clearly defined (mundabit);
hikmah
these
true
is
lacks
motive main
the
cillah will with
what
for
qualifications, yet it represents the
(God's)
enactment of
thing and the underlying serve
no
purpose.
the ruling.
Hikmah
without which
reason
TViUS/ Vie equates hikmah
al-Qarafi referred to
the
as
"promotion of
benefit".
In
of
to
show
the
difference
between
ruling and its hikmah, Khallaf gives
a
the
order
Qur'anic
an
the
cillah
instance of
verse:
"(Fasting) is for a fixed number of days, but if of you is ill, or on a journey, the prescribed number (should be made up) from the days later".10 any
Relief while
from
hardship, according to him,
travelling
or
cause.11
illness is the
to
ignore the fact that hikmah in this
in
cillah and not
to
exist
cause
is
without
10 11
if the
the
separate from it,
cillah is
taken
ground of action,
hikmah
it
would amount
Qur'Sn, 2:184 Khallaf,
Masadir,
p.
49
59
is the hikmah,
case
But he seems
is implicit
because hikmah ceases
away.
Besides, cillah
or
if it is considered to be to
folly.
Therefore,
cillah
hikmah,
covers
and the
interpreter has to take
into consideration cillah which the
revealed
is
He
the
ruling
so
as
is
the
effective
cause
to extend it to similar
of
cases.
primarily concerned to identify the hikmah of
not
but to identify the cillah that occasions the
ruling,
ruling.
Relying certain
the hikmah,
further
more,
would lead to
legal judgments being contradicted by the
conclusions for
on
of
consensus.
The
prohibition of adultery,
example, might be ascribed to the hikmah of the
necessity to protect genealogy; but would
be
on
this basis, it
logical also to prohibit intermarriage between
persons
of unknown parentage, which by consensus is not
in
the
fact
case.
The
hikmah,
in other words,
is
an
unacceptable criterion for judgment because of its generality and uncertain character; therefore
reliance
on
it is
presumptuous and likely to lead to
distortion.12
3.3
C.
THE
THEORY
OF
The
aloof
as
MAIN
an
which helps
Kerr,
IN
THE
APPLICATION
theory of al-masalih al-mursalah
(judgment)
12
RESERVATIONS
OF
THE
AL-MASALIH AL-MURSALAH
op.
does not stand
independent device of decision making
in Islamic law.
It
is
interpreter
or
a
an
cit.,
p.
74
60
a
supplementary tool
mujtahid to make
up
his
mind
in
the
which
for
cases
the Qur'an
of judging or giving verdicts to
process
clear
no
Sunnah.
or
ordinance
cut
is
specified in
the Muslim scholars have
So,
stipulated conditions and reservations in order to guide the
interpreter
the
right decision and reach
mujtahid
or
that he would arrive at
so
safe conclusion in the
a
of his decision making through the help of the
process
theory of al-masalih al-mursalah, hinder
him
from
judgment,
same
time to
attacking the Qur'anic and Sunnah
injunctions and keep him reservations
and at the
are
from perversity.
away
follows:
as
(i)
The main
He should not build his
in which he finds public interest,
upon
anything which has been abrogated by the Sharicah, excludes
that
the
from
case
circle
of
public
interests.
This
verdict
Yahya ibn Yahya al-Laythi who thought of a
of
will
the
since
be
shown
later
to
public interest which conflicted with
injunction and should not
a
be
was
result
a
of
result
Qur'anic
a
(ii) The benefit
therefore cancelled. of
a
well
established
probable proposition
a
apply to the
or
principle and of fanciful
imagination. A typical example of this condition is, for instance,
take away the
to
marriage from wife; the
right of divorce in
an
Islamic
husband and vest it in the hands of
a
a
which is in clear opposition to the ordinance of
Qur'an
interest
in
(2:230-32); this
simply because
case
any
so
and
it is not considered therefore
is
invalid.
benefit which conflicts with
61
a
public This any
is
injunction whether in the Qur'an void.
mode.
manner
rule
A
individual
or
or
individuals; the
all
a
and
should
in
law
should be
because
one
the
are
world
Sharicah
For
reserved
in
the
that
recommended the
a
particular
established
for
or
for
an
specific
a
important qualities
the most
for
eyes
reason,
prescribed to suit and include No
a
reservations
special
(believers)
of people,
are
an
Muslim
prisoners of
war
scholars
case,
enemy even
equal before the
who shields himself though that action
killing of those Muslims. This is due to
have
established
that
the
enemy
The
is,
to be attacked except where the danger
general and reaches all the people. encircle
the
all the
the Muslim scholars have
attacking of
the
privileges
of the Lawgiver.
the
mean
group
or
dependence of public interest in this issue.
Muslim any
of
over.
responsible human beings
the
not
particular family
Sharlcah
the
mankind
would
is
Islam
in
deemed
legislating nature of Islam is universality. The
in
with
be
not
a
but it is generally promulgated for all
group,
laws
rendered
(iii) The benefit should be observed in
universal
of
Sunnah is
or
enemy
within
in
is
Were it possible to
fort to stop him from
a
endangering Islam and the Muslims present within the region of this fort, on
then it
is not recommended to depend
public interest to attack the
62
enemy
and
cause
death to
Muslim
those common
qiyas.
rules
a
where
case
al-mursalah
neither
should there
benefit,
it
be
is
there
no
conflict
with or
a
ijmac
be
except when we fail to find direct
from
these
(v)
equal to it in preference.
should
be
criterion
a
distinguished by
as
sources,
The benefit
superseded by another important benefit
standard which
The
object of
an
apply the theory of al-masalih
ordinances
or
should
that
is
It
For we do not need to turn to the theory of
al-masalih
nor
to
(iv)
injunction whether from the Qur'an, Sunnah
clear or
to
sense
al-mursalah
war.13
prisoners of
is
mujtahid,
a
agreed
by which
upon
a
This
means
certain
may
be assessed.
by most of the Muslim
jurists and scholars is the consideration of benefits according to the order of the five fundamental principles of
aim of
the
the
Sharlcah
in
regard to
man;
viz: The
preservation of his religion, his life, his mind,
his
offspring and his material wealth. If needs
be
selected
suspended, assessed the
benefits
two
value
come
while
into
the
conflict
other
is
discarded
one
of
them
or
the two benefits should be examined and
in of
three each
(i)
aspects:benefit
in
to have a clear vision of
respect of
(ii)
to have a general understanding of
each
benefit's
1 o
utilty; and (iii)
their importance; the extent of
to have a clear
„
M.A.
p.
where
Saleh,
Masadir al-tashric al-Islami
485
63
wa
manahij al-istinbat,
of
assurance
their
whether
results
will
actually happen
benefit
over
the other as
not.
or
The
preference of
one
regards importance, extent of general utility and the
anticipation of its good results is made through the following procedure:- "The benefit which religion takes precedence his
life
if
which
that
which
one
mind
the
two
preserves
takes
his mind;
precedence
with
each
other; over
the
that which preserves man's
the one which preserves his
over
offspring; and that which precedence
conflict
man's life takes precedence
preserves
man's
the one meant to preserve
over
benefits
preserves
preserves
man's offspring takes
the one which preserves his material
over
wealth.14
3.4
D.
SCOPE
THE
Muslim
Sharlcah is
AND
CLASSIFICATION
jurists consider that the intention of the attain
to
the
attainment
the
world and
which will
of in
benefits
lawful
the
what them.
14
For
M.S.R.
a
human
hereafter.
Added a
to
this
mankind
detailed
al-Islamiyyah,
and
that
without saying,
goes
al-Buti,
best
elucidation of
in his Dawabit pp.
beings
which
64
a
clear
fi
who knows not
suit
that the
reservations
al-maslahah
119-275
does
therefore,
these
is
revealed code of law
the All-Wise and the All-Knowing
suits It
for
bring them happiness here in
conception that the Sharlcah is from God,
BENEFITS
OF
see
al-Sharicah
Sharlcah contains all to
procure
is
therefore
Lawgiver
the
legal aspects which help people
benefits and repel injuries.
something inherent in the actions of the
(God) and His intentions provided that there is Sharicah for
no
indication
in
the
be
considered
or
discarded.
It
is
divisions:
(i)
that which
relationship between of
acts
particular thing to
a
important to bear in mind that legal
obligations in the Sharlcah
the
Public interest
worship; and
are
divided into two
concerns
man
(ii)
the organisation of
and his Creator,
i.e the
that which concerns the
organisation of relationship between human bings individuals i.e
laws
as
well
as
-
societies and nations
groups,
-
governing behaviour and transactions
(mucamalat). The underlying principle for the first division
is
obedience
God-consciousness)
to
God
(to acquire
through following the ordained acts of
worship by observing their provision methods
the
causes
laws
of
and
of
effects
because
that
as
knowing
exercise
is
applicable to
governing behaviour and transactions and not to acts
worship. Moreover,
a
it is not essential for and effect
cause
to
or
even
one
innovate
ordained
ones
new
acts
because
the
It
of
who
the reason
particular act of worship, because by doing
deprives him of servitude. him
well
performing them without looking into their
worships to know the for
as
so
is also not permitted to
worship instead of the
Prophet of Islam has said,
65
it
"
innovation (in the acts of worship)
every
perversion and the abode of
is
perversion is hell
every
fire".15 issue
The
clear the
since
the
attainment
Subservience
to
in connection with
the
Sharlcah requires, of
subservience
God
acts
worship is
in the first place, God,
to
of
the Almighty.
implies the liberation of
an
individual
from any
To
the soul for this is one of the objectives of
prepare
the
in
Sharicah
-
i.e
servitude except that of God alone.
the
preparation of
good individual
a
society. This division of obligations
(i.e acts of
worship), therefore, does not enter into the orbit of research and
benefits,
though an individual may discover
try to interpret some implications of benefit
various not
on
acts
ordained
these
verses
"O
of
worship.
rules
in
the
for
It
in
is without doubt that God has
nothing;
we
read,
for instance,
Qur'an:
who believe! Fasting is prescribed to you was prescribed to those before you, that ye may (learn) self-restraint";16 as
ye it
"
and
verily prayer restrains unjust deeds ".17
(one)
from shameful
"From their goods take alms, that so thou mightest purify and sanctify them; and pray on their behalf, verily thy prayers are a source of
15
16 17
Reported by Muslim Qur'an, Ibid.,
our
2:183 29:45
66
them".18
security for
the
However,
implications and clear intention of the in
Lawgiver
may
worship,
there is also a great portion of acts of worship
with
appear
implications which
human mind.
the
For
most of the acts of
or
some
hidden
are
human mind
in
unknown to the
or
connection with
faith
in God
sometimes
cannot
is
necessary
to know the wisdom behind a particular
not
perceive its implications, and it
injunction in matters of faith since the material from God
does
who
not
lay
comes
rule except for the good of
a
human
beings. God does not oblige human beings to do
leave
something except for the
individual
an
and
a
group:
oddity in accepting such worship,
faith
between
an
worship
goes
are
obedience
to
enforcement the acts
18
are
long as the acts of free from
one
without saying,
worship with
abstruse
which is absurd is
therefore,
that acts of
God are
alone,
and the
reasons
for
their
primarily confined to the knowledge of
(God) alone,
that
is because almost all the
worship have hidden benefits in them.
Qur'an,
an
mainly meant for the adoration of and the
Lawgiver of
of
act
implication (wisdom) and the It
as
Perhaps it is better to mention here that
difference
clear.
and prosperity of
and the mind does not find any
in their various forms,
absurdities. the
a
success
or
9:103
67
for
As
Sharlcah comprising of
the
the
legal obligations in
rules of behaviour and
relationships between people in terms of society and
also
internationally. A mujtahid
discover
benefits the
with each other that the consideration
agree
and
reasons
intention
the
correct
structure
of
large.
Take
the
success
be
of
Sharlcah
the
is
This
to
is the
ensure
is
society where its network
tranquility and prosperity
of
individual
an
for instance,
prayer,
dominant.19
should
encompassed by justice,
at
individual and communal life.
why we find that the Muslim
reason
because
assure
recognized to
are
in matters concerning customs and transactions,
unanimously
to
interpreter could
the consideration of worldly
upon
tenets of
is the
causes
an
appeal to the mind and
supreme
scholars,
based
are
which
this
So,
or
easily that the underlying principles for
very
transactions
of
of
its scope and range is the organization of
transactions,
be
division
second
the
and
of
the
so
as
society
it is not permissible for r
its
structure,
duration,
the
to
find
conditions
19
A.S.
out
p.
season, the
that
so
Muhammad,
al-istinbat,
of
rakacat
their circumstances etc.
change of place, need
number
we
Masadir
generation
(prostrations), be
or
race.
reason
for
its
could
get
rid of it
structure
al-tashric al-Islami
465
68
influenced by a
to
wa
nor
We neither and can
manahij
we
add
anything has
new
to it,
simply because the Prophet of Islam
said,
"Pray in the way and
have seen
you
praying".20
me
said,
God
"Verily, prayer is ordained to the believers at prescribed times".21 in matters
Whereas we
in
are
certain
need
of
contract
concerning customs and transactions
knowing the is
and
cause
sanctioned
reason
becomes
or
null
legalize its execution and give allowance to
to
for
rule
in
the
a
new
society which is
Wherever the
contract;
to give
or
ever
legal benefits
encroachment
of
by which in a
a
order new
for an emergency
room
changing and developing.
are
found to exist free from the Sharlcah
passions and lusts,
ackowledges and recognizes them and encourages people to obtain
them;
and wherever
injuries
are
found the Sharicah
fights and checks them and enjoins people to refrain from them.
Once
it
becomes
Sharlcah concerning aim
at
benefits
21
the
injunctions of the
transactions and personal dealings
it should be realised that the
according to the Muslim jurists
three
muctabarah)
20
that
bringing benefits to human beings and repelling
injuries from them,
into
clear
kinds: -
(1)
these
—
Considered benefits
are
categorized
(masalih
benefits which have been laid
—
Reported by al-Bukhari and Muslim Qur'an,
are
4:103
69
by the Lawgiver with clear'legal proofs;
down
benefits
Cancelled
benefits
which
(masalih
have
been
cancelled
(3) Unrestricted benefits the
which
ones
discard
to
-
these
are
by the Lawgiver; and
(masalih mursalah)
-
these are
injunction is given to consider them
no
them;
mulghah)
(2)
they
are
or
left to be judged
independently.22 considered
The three
(ii)
kinds:
are
THE
benefits
NECESSARY
These
are
without,
for
absence.
To
divided
further
The necessary benefits
The reasonable benefits
luxurious
3.5
(i)
benefits
(al-daruriyyat);
(al-hajiyyat);
the
their
benefits
which
people cannot do
lives would become chaotic in their
preserve
these bene-fits is therefore an
and they are
through the ascertainment of their principles.
preservation of religion,
five
wealth.
pp.
Al-Shatibi,
the
concern
the
life, mind, offspring and
preservation of each necessary
preservation of religion is
benefit which
22
The
things is considered
The
The
BENEFITS
According to Muslim scholars these benefits
material
(iii)
(al-tahsiniyyat).
urgent need of human existence on earth attained
into
one
of these
and essential.
a
considerable
Sharicah has dealt with extensively.
Al-muwafagat,
vol.
2,
95-108
70
pp.
2-11;
Al-ictisam,
vol.
2,
Sharicah has obliged able Muslims
The
God
of
cause
doctrine all
the
(jihad)
to preserve religion,
monotheism should
of
to fight for the
reign
supreme
so
that the
and eradicate
impediments and shackles confronting humanity at The Qur'an says:
large.
"And fight is no more
them (the transgressors) until there or oppression, and there prevail justice and faith in God. But if they cease, let there be no hostility except to those who
life
dealt
a
legal benefit which
by the Sharicah at length;
with
and
a
penalty has been specified by the Sharlcah for
severe
of
preservation of life is
been
those
oppression".23
practise
The
has
tumult
who
of
illegitimately take life in order to
mankind
and
preserve
legal retaliation
Sharlcah in order
to
beings. The Qur'an "
secure
the
it from extinction. The rule
(qisas) has been laid down by the prevent any hostility among human
says:
if
And
anyone is slain wrongfully, we have given his heir (next of kin) authority (to demand qisas or to forgive); but let him not exceed bounds in the matter of taking life; for he is helped (by the Law)".24 In to
order
life
to
for
assure
every
the
security of mankind and the right
human being and to crush cruelties and
transgressions the Qur'an
says:
"0 ye
who believe! the law of equality is prescribed to you in cases of murder: The free 23 24
Qur'an,
Ibid.,
2:193 17:33
71
for
the
free,
for
the
woman.
if
But
brother of the reasonable demand,
slave,
the
woman
gratitude. This is a concession and a your Lord. After this whoever exceeds
mercy from the limits The
the
remission is made by
any
slain, then grant any and compensate him with
the
handsome
for
the slave
be
shall
in
penalty".25
grave
Qur'an has laid underlying principles
for the
preservation of human life, prevention of committing sins, of
removal
severity in duties,
in addition to the
illegalization of commiting suicide; all these show clearly that the Sharlcah is deeply concerned with the
preservation of life.
The
modification of of
the
When
the
Qur'an
that
the
taking of
the
as
a
deterrent "In
In
26
is
a
into existence it revenge
in
a
to
order
ye
was
made clear
legal way is not aimed an
individual only but
society. The Qur'an
preserve
says:
Equality there is (saving of) life of understanding; that ye may
men
yourselves".26
to
preserve
a
balanced mind,
the Sharlcah
prohibited intoxicants and has enjoined the Muslims refrain
vicious
25
(gisas)
prevailing custom before the advent
came
law of
the
you, 0 restrain
to
vengeance
preservation of the life of
to
has
taking
which could lead to uncontrolled bloodshed.
Islam,
at
of
enactment
Qur'an, Ibid.,
and
from all
activities
which make
speculative. The Qur'an
2:178 2:179
72
says:
the
mind
"0 ye
of)
who believe! Wine and gambling, (dedication and (divination by) arrows, are an
stones,
abomination of
Satan's
handiwork; Eschew such that ye may prosper".27
(abomination), The
Prophet of Islam is reported to have said: "Every intoxicant
is liquor and
every
liquor
is
forbidden".28 Above issue
all, of
there
the
several
are
preservation of
empowering its faculties activities; Muslim
the
which
is
by
some
kinship and chastity marriage
of
the
as
balanced mind and for its
to prepare grounds
expounded at length by
jurists.
named
of
a
rules have been
those
connection with
In
so
rules governing the whole
as
a
-
the
preservation of offspring,
scholars as
the safeguarding of
-
the Sharicah has ordained the act
positive
measure.
We read in the saying
Prophet of Islam:
"Intermarry extensively and spread so that I may proudly with you as the best of the nations on the Day of Judgment".29 stand
The
Sharicah permitted polygamy as a motivation,
alternative, has
entrusted
to to
attain the preservation of offspring, the
husband
justice to all the wives equally.
27 no °
Qur'an,
and
the
and
obligation of doing
Says the Qur'an:
5:90 _
—
_
Related
—
by al-Bukhari and Muslim? also refer to al-Shawkani, al-awtar, vol. 7, p. 148 n q J
an
_
Nail
~
Related
by al-Bukhari and Muslim. Another wording of this saying as related by Ahmad ibn Hanbal and narrated by Anas ibn Malik reads, "Marry the virgins so that I possess more population above all the Messengers of God on the Day of Resurrection"
73
"Marry four; deal one" the
To
women
of
justly .
end,
same
the
fornication and
and
those all
long
it
do
who
the
choice,
two or three, or that ye shall not be able to (with them), then (marry) only your
if ye fear
but
doors
and
Sharicah has prohibited adultery
laid has
down
a
painful punishment to
legislated it in order to close
leading to this sinful act which,
in the
breaks down the bonds of kinship and demolishes
run,
good character and generates recklessness and
irresponsibility in society. Concerning the preservation of material wealth, Sharlcah has robbers earn
laid
and
their
imposed
a
severe
various
down
punishment to thieves and rules
enable
to
people to
living legally, and prohibited them from
plundering the belongings of others. The Qur'an
3.6
thief,
"As
to
her
hand;
a
for
their
crime;
THE
REASONABLE
These
the
are
inconvenient
benefits
the
male
or
punishment by
the
cut
off his
or
of example from God
and God is Exalted
in
Power".31
BENEFITS
benefits
conditions
neither
female, way
says:
harms
which
only.
people need to avoid
The absence of these
people's lives
nor
causes
disequilibrium in their worldly and religious welfare but
30
31
only generates inconvenience. Ease and simplicity are
Qur'an,
Ibid.,
4:3 5:38
74
the
general features of the Sharlcah.
instance,
permission is granted to
traveller,
We see,
sick
a
for and
person
a
break the fast during the month of Ramadan:
to
"But if anyone is ill or on a journey, the prescribed period (should be made up) by days later. God intends every facility for you; He does We
see
not
want
to
in connection with prayer
also
prostration
prayer
may
that a four
be reduced to two prostrations in
particular circumstances; The
difficulties".32
put you to
on
eg.
journey
a
or
in jihad.
Qur'an says: "When ye travel through the earth, there is blame on you if ye shorten your prayers for the unbelievers may attack you".
With trade
regard to transactions and
commerce
visualize much
and
in order
we
forbiding to
and
forbidding
fear
the Lawgiver allowing
usury.
We do not need to
comprehend the demand of
people for these two principles commerce
see
no
usury.
-
i.e allowing trade and
There are numerous
examples of this type in the Sharicah which give scope for
mankind
to accommodate
circumstances
all
the
new
which
are
neither
of
life.
3.7
THE
LUXURIOUS
These
are
BENEFITS
benefits
the
smooth
the
development of the individual's life
32
33
Qur'an,
Ibid.,
running of people's lives
2:185
4:101
75
nor
necessary
for
important for or
the
community's prosperity. They
embellishers of
are
already confortable life. The taking,
an
for instance, of
sophisticated ornaments and adopting highly cultured customs
which make
necessities
of
the
life;
community look at
they
are
issue
into
consideration
opportunity of happiness and in
as
hereafter.
the
We
see,
are
not
surplus to normal life.
a
the Sharicah has taken
Inspite of this lack of necessity, this
ease
in
order
to
provide the
in this life
success
instance,
for
as
the Prophet of
Islam
commanding the Muslims to observe strictly the
rules
of
tidiness,
celebrations, of
some
wearing
new
well
clothes on cid
(festival)
putting
on
clean white clothes on occasions
gathering. As
we
find also,
luxurious
benefits,
forbidden and
the
harmful
in order to attain
food-stuffs have been
eating of bad smelling foods is
abhorred.
therefore
We
life
for
is
the
that
that
the
that which makes
category of embellishers
which
lies
between
the
two
ordinary needs and requirements
Al-cIzz vol.
1,
pp.
thing which is necessary
categorized in the essentials
(al-daruriyyat), in
find
ibn
cAbd al-Salam,
Qawacid
60-61
76
life
more
enjoyable is
(al-tahsiniyyat), and is
in
the
category of
(al-hajiyyat),34
al-ahkam fi
masalih
al-anam,
3.8
CANCELLED
THE
These
Sharicah.
the
with
the
create
the
grave
benefits
which
ones,
benefits
is
surrender
to
glance,
peace
to people and stops
lead
to
the
enemy of
wealth
successive
to
in
to
an
when one
enemy
at the
It may appear,
that surrendering to an opponent brings
nonetheless,
on;
discarded
injuries. An example of this type of
first
so
been
they are primary benefits which
or
capable of defending oneself.
and
have
They are secondary benefits which conflict
primary
discarded is
are
BENEFITS
over the
the shedding of innocent blood
the
Lawgiver considers this act
injuries;
the conquered,
such as the domination of
the exploitation of the
conquered and the oppression of the subject
population etc. For these
reasons
and others,
the
Lawgiver has ordained the obligation of self defence to safeguard the liberty and the security of the Ummah
as
an
imperative thing and has urged the preservation of the boundaries achieve aloof.
and
the The
maintenance
the
Ummah's act
of
of
the
Ummah
in
order
sovereignty and keep the intruders
not
yielding to the
enemy
helps
bringing victory and stability to the Ummah and it
to
succeed
Another
in
the
to
difficulties
of
in
prepares
life.
example of the discarded benefits is that of
committing suicide for somebody who finds difficulty in earning his living, and
who
or
for
someone
despairs of recovering.
who is seriously sick
It would seem at
first
glance that committing suicide by these people is an
77
individual
benefit
which puts
the misfortune
the
disease
the
injuries caused by this act
to
or
which would
be
the
termination
assassination of
the
creation
individuals
fatality of disbelief
well
as
of
narrowness
character
inordinate
of
as
of are
life.
Nevertheless
the least of
numerous
of
human
in
the
perseverance
and
society and the
uncertainty in the hearts of communities.
It
also
causes
optimism and disbelief of the natural
man
in
end to the torment of
an
which surrounds him from all angles.
the
natural
fatality of
man
The
generates
passiveness and negativity in the mind, while belief in it
imbues
like
with
positiveness and faith.
Sharicah has
The
abhors
man
those
do
who
killing
an
forbidden
it
it
and
committing suicide and
has
declared
its
innocent person with no cause;
exercise
the Qur'an
says:
"Take
not
life which God
by way of justice and "And
God The
do
not
hath
kill
been
to
hath made
sacred
except
law";35
(destroy) yourselves; most merciful".36
for verily
you
Prophet of Islam is reported to have prohibited the
killing of oneself, and considered it to be the action of removing oneself from true faith in God, His judgment and His
35 36
37
decision.37
Qur'an, Ibid., The
6:151 4:29
tradition
has
been
related
by al-Bukhari
78
Among the examples of cancelled benefits
is the
issue of
polygamy; a right which rests in the hands of
husband.
Polygamy may
grievances to if
them
exist
all.
at
Nevertheless,
Sharxcah has cancelled this benefit needs
of
first
the
husband:
a
wife
to
the
provide for the
the need to get children in case
eg.
the need for
barren;
was
injuries and
and it would be of great benefit to
women,
did not
it
to bring
appear
a
social
intercourse which would not
be
diseased wife;
the need for
social welfare and wellbeing
of
husbands
whose
women
wars
or
by calamities, etc.
In
this
forward famous
the
verdict
Andalusian
al-Andalus, *
of
his wife
Ramadan
after
_
bring a
verdict.
ArmV
The
of
*
•
during the day time of the fasting which
he
felt
sorry
for his action
jurists to ask them what would be the
a
day".38
p.
his
remedy for his action.
Saleh,
we
and the standpoint of other
scholar,
_
Masadir
So,
Yahya ibn Yahya
prominent jurist of his time,
"I find no remedy consecutive months
M.A.
benefits
Yahya ibn Yahya al-Laythl,
towards
al-Laythl, being
O O
long term
either being killed in
cancelled
•
collected
necessary
of
of
died,
a
cAbd al-Rahman ibn al-Hakam, had sexual
with
contact month
field
same
Muslim scholars
and
have
possible to
for
you except to without breaking
_
_
__
79
fast two single
a
__
al-tashric al-Islami
472
replied:
wa
manahij
ai-istinbat,
While fast
it
in
free,
is
known
this
way
the
Sharicah that he who breaks
has the choice of either setting
fasting two consecutive months
or
people.39.
poor
in
verdict,
or
a
the
slave
feeding sixty
When other jurists questioned him
on
his
replied by saying:
he
"Were we to open the door of choice to him, it would be simple for him to have sexual contact with his wife daily in the month of Ramadan and
simply set free a slave or feed sixty poor people (because of his richness); so, I have made the remedy more difficult in order that he should not repeat the same action again".40
is
What
based
upon
noteworthy in this verdict is that it is
vested benefit which has not been considered
a
by the Lawgiver.
AvVUf"* to
was
it might
Yes,
seem
that in making the
cAbd al-Rahman, fast two months consecutively
provide
a
great benefit to him and deter him from
following his passions which made him disobey God and to the Sharicah has
set
an
not
approved this benefit and cancelled it simply because
the
choice
of
example to others.
their
made
for
remedy applies to all believers regardless
economic
unlawful
Nonetheless,
and
or
social
sinful
to
status.
have
The
sexual
Sharlcah has
just
intercourse
during the day in Ramadan to all Muslims equally without segregation between the ruler and the ruled, and has sanctioned any one
39
40
The M.A.
—
hadith
Saleh,
is
of the three mentioned penalties.
related
op.
cit.,
by Ahmad ibn Hanbal in his Musnad p.
472
80
The
Sharicah has depended fear
of
which acts
God
individual's assist
to
3.9
are
evidence
the
punishment for the remedy,
of
an
of
the
Yahya ibn Yahya
which
enter
Sharicah has
the
them
upon
considered
or
benefits
upon,
nor
the
any
their removal. These benefits benefits"
discard them which
the
is there
due
to
the
given direct injunctions as
fact on
that
whether
opposed to the
Sharlcah has commanded to
the
and the cancelled benefits which have been
rejected by it. For this the
realm of
Sharicah which specifies
suggests
not
the
Lawgiver and His intentions. There
"unrestricted
the
use
attention
the
benefits
the
in
called
who
guard in
BENEFITS
the
are
acted
besides
drawn
has
indication which
be
first
utility of these benefits
necessary
act
the
since the Sharlcah has cancelled
UNRESTRICTED
consideration
to
as
void.
and
no
the view of
the Muslim scholars have rendered his verdict
These
is
upon
safeguarding of the Law of God and its
So,
which
al-Laythi, null
soul
the
executions.
benefit
in this matter
term
reason
"al-istislah"
there are some scholars to
mean
al-masalih
al-mursalah.
If
with
the
the
scholars, do
meaning of al-masalih al-mursalah tallies
meaning of istislah
as
put forward by some
and since the Sharlcah does not command
man
anything except for the benefit of human beings,
81
it
to
appropriate therefore to take al-masalih
seems
al-mursalah
As
we
original
have
certain
haram
if
when
of
do not find it
we
and
about
found
decision
p.
387 and
we
a
or
makruh (loathsome),
we
therein, do
not
look
we
find
in
do not find
three
the
rule
a
sources,
in the
we
Sunnah,
for
resort
a
to
that
is
a
qualification or
occurrence
judgment is made similar to
this
we
same
cillah.
find the Sharlcah connects these causes
but without connecting
judgments with benefits which cannot be
al-Buti, so
rule is to be given
particular action
bearing the
or
the
connected to causes cilal);
are
occasion
way
The Qur'an,
analogy in chapter one,
in
that the
(analogy). We have seen clearly,
judgments
ever
decisions
M.S.R.
If
these
qiyas
qualifications with
41
of
or
(the singular of cilal)
certain
In
one
source
talked
if
another
in
case
a
one
look in the Qur'an for its
ijmac. But if
cillah
a
we
the
we
which
making in
(compulsory) or mandub
_ia'i_z (lawful),
in
decisions and
or
decision.
fourth
are:
wajib
its
certain the
whether
case
for
look
we
of the Sharlcah
(illegal),
enactment; Sunnah
decision
of
ijmac and qiyas; and if
(recommended), or
devices
the
previously in chapter
seen
sources
the
Sunnah, a
of
one
Law.41
Islamic
for
as
Dawabit
al-maslahah fi
on
82
al-Sharicah al-Islamiyyah,
defined
certain
on
occasions.
there
Moreover,
is
a
problem of difference of opinion in demarcating the limits
could be all
benefits.
of
to
the genuine methodology which
So,
applied by
jurist
a
or
a
mujtahid is first of
identify the suitable cillah which would be
approved by the Sharicah and then give
a
decision
judgment to that particular occasion and other occurrences
But or
events
and
decisions
previous still
without
making
not
any
that
so
or
wrongness
Were
it
to
the mind
character
but
permit it
as
intoxication benefit
See
Malik,
of
bear
be
does a or
the
398 and
does he make
new
events and
cilal to the
similar or
is he to stand
decision, knowing that it is
of their
discovered
sluggish,
al-Shatibi, p.
benefits for
jurist
people are kept aware of the
Tightness
makes
event daily;
new
A
him to give legal decisions to those
upon
occurrences
on
limitless.
are
which have ordinances
ones
incumbent
do
a
new
cillah.
occurrences
depending
which
occurrences
42
same
mujtahid might face
a
new
bearing the
or
not
actions?42
that
some
type of drink
slow in thinking and creates bad
make
a
person
drunk;
are
we
to
lawful drink due to the lack of are
we
to
make
it
unlawful
for
the
preservation of mind and character and get
Al-muwafagat, so
vol.
on
83
1,
pp.
15-17;
also Abu Zahrah,
rid of all of
an
the
ensure
impurities which contaminate the integrity
individual
Without any of
the
well
as
that
of
the
society at large?
shadow of doubt, according to the intention
Sharlcah, the
as
we
have to declare
the drink
legal benefit; and in doing
applied the theory of al-masalih
84
so we
unlawful
to
have already
al-mursalah.
Chapter 4 MASLAHAH •
4.1
MASLAHAH •
AS
•
is
It
AS
•
GENERAL
A
GENERAL
A
AND
A
TECHNICAL
TERM
TERM
quite often claimed that "maslahah"
principle of legal reasoning
-
as
a
broadly speaking, to
argue
that
"good" is "lawful": and that "lawful" must be good
came
to
of
fiqh.
The
instance, law"
used
be
a
very
the early
to
the
to
founders
of
Malik
b.
Anas.
these
statements
the
early period in the development
of this principle is attributed,
use
even
or
at
Companions of the Prophet. Amomg the of
schools
There
in
it
law,
is associated with
however,
seems,
equating the
of maslahah may
similar observed not
have
other
to
used
that
use
to be a
confusion in
of "maslahah"
such
or
as
a
The early
technical
is
term
al-Shafici; hence this concept must
developed in the post-al-Shafici
Paret's
a
ra'y. Rudi Paret has
as
word maslahah
by Malik
as
have been in its general sense
terms
the
for
jurists of the "Ancient schools of
general term with its use as a technical term. use
-
observation,
however,
period.1
does not refute the
possibility already discussed that considerations similar to maslahah
were
considerations
1
R.
Paret,
[Leiden:
employed by pre-al-Shafici jurists.
do
not
seem
Istihsan and Istislah,
Brill,
1961],
p.
have
to
Shorter
185
85
been
formulated
Such
in
Encyclopedia of Islam,
technical
in
maslahah the
legal terms. the
The proponents of the use of
early period have,
early similar considerations with maslahah.
therefore,
incorrect to say that
not
such
was
a
continuation
early methods of reasoning which were not yet
formally defined. the method
of
insistence
that
texts
Later,
when al-Shafici's definition of
reasoning in terms of "sources" and his the
reasoning be linked with the revealed
through qiyas,
prevailed
over
other methods the
concept and method of maslahah was also seen,
by Shafici
From
reasoning
al-Haramayn al-Juwayni's
(438/1047)
it appears that by his time the validity of on
the basis of maslahah had become
controversial
Shaficis and
In this respect some claimed
are
to
have
on
such
textual of
an
(asl).
asl
and
evidence
The mursalah
such
(dalil)
as
are
are
a
problem
number of
maintained
acceptable maslahah is only that which has basis
a
enough to bring forth three schools of
"mutakallimun"2
textual
especially
jurists in terms of "sources".
Imam
Al-burhan,
thought.
is,
It
the post-al-Shafici
development of the concept of maslahah of
confused
apparently,
a
that
the
specific
(a maslahah not based
contradictory to the
not valid.
The second school
thought is attributed to Imam al-ShaficI and to the
majority of Hanafls in general. They believe that
2
A
group
of usuliyyun in the
in-fluevicecj by inter pfG+dt-'i
w®d(aeva,l per iod of Islam
were
theological exposition in tlnelr leg&l
86
maslahah
still
can
masalih
be
it
if
even
used,
which
are
is
not
supported
on
a
specific basis,
provided that it is similar to those
unanimously accepted
or
which
are
textually established. The third school is attributed to Imam
Malik
who
held
consideration of it
that
the
a
condition of
corresponded with the texts This
comment
similarity
whether
or
not.3
or
use
of maslahah but it is
significant to note what divides these schools
very
maslahah.
First,
any
by al-Juwaynl does not help us in
determining the dates of the
of
existed without
maslahah
shows
the comment
that
it
was
on
the method
reasoning which sought its basis in the revealed
texts.
Secondly, the
if
accept the attribution of
we of
maslahah
to
comment,
it also shows that the method of maslahah in its
names
the
jurists given in this
early formulation by Imam Malik and his followers was
independent of the consideration of "sources" and
further
conformed
first
to
group
that
maslahah
"sources"
-
was
to
and to ijmac in
or
"basis"
accepted by others if it
the
case
text
in
the
case
of
the
of the second group.
They rejected only al-maslahah al-mursalah because it did not
conform with
the
sources.
This
explains why the
concept of maslahah which originally was not necessarily
al-Haramayn al-Juwayni, Al-burhan fi Usui al-fiqh, MS. Ill photo. I.R.I, no: 219, fol. 135a; see also Mustafa al-Shalabi, Taclil Al-ahkam, [Cairo: al-Azhar, 1949], pp. 292ff Imam
Ahmet
1321,
87
conceived and confined within be
to
came
reference the
This
"sources".
of
"sources",
confused
this
confusion
following analysis, two
effectiveness, discussed
in
One
be noticed in the
in terms of need and
in reference to
and second of
terms
may
of
is the tendency to discuss maslahah
i.e first
levels,
that
in
discussion
the
concept of maslahah as we shall see later.
indication of
at
framework
particularly by later Shaficis,
seen,
to
the
validity,
sources.
When
these two levels were
confused.
4.2
MASLAHAH •
AS
•
A
TECHNICAL
TERM
Al-Juwaynl analysed maslahah basis into
five
categories. First is the category where its
where
it
is
neither
similar
of
noble to
the
priorities, concerns
not
the
essential
general need
a
Third
above,
is
but
call
The second category
(hajat cammah), but below
the
category which belongs
rather
concerns
something
The fourth category is
(mukarramah). third,
necessities
it
less
noble,
yet
in terms of
the fourth comes later. The fifth category
those
demanded
certain
inevitable.
darurI.
of
level
is rationally understandable and to
are
is
what
concerns
is
related
which
(darurat)
which
extra-textual
reasoning in the context of analogy by cillah
(significance)
to
an
of
macna
the
as
usul
whose
by darurah,
by a mukarramah.
macna nor
is
not
by hajah;
obvious, nor
and
is it required
Examples of this category are the
88
is
cadat.4
purely physical
Maslahah
Zahirl
as
a
technical
jurist Ibn Hazm's
al-ahkam,
is
term
in
used
not
the
(456/1065) Al-ihkam fi Usui
orrniingHanaf l jurist, Pazdawi's (d.
482/1089)
Usui.
The
and masalih
maslahah
terms
Muctazili Abu al-Husayn al-Basri (otin
and
technical
and maslahah
means
in
to
reference
and
are
good things,
Al-Basri discusses maslahah
goodness.
istidlal
by the
47S/10&5) bothin ejeneral
him masalih
To
sense.
used
are
cillah, and in arguments
against his opponents who maintain that masalih cannot be known
through reasoning at all. At
al-sharciyyah
al-masalih
acts
commands; These
these
means
(cause),
are
validity of
these
4
See
cibadat.5
are
Related to
achieving the Sharci
to
means
as
we
also connected with masalih.
means
are
dalil
(evidence),
amarah
(sign), sabab
cillah (reason) and shart (condition). The
illustrations
(usury)
the
are
point he defines
those acts which
as
obliged to do by the Sharicah such these
one
of
these
consensus,
terms
are
given
as
follows:
analogy, measurability for riba
and the conditions in contracts of sale. All of
means
connected
are
al-Juwayni,
op.
cit.,
with
fols.
maslahah.6
For
instance,
108ff
5
See Abu al-Husayn al-Basri, Al-muctamad fI Usui al-fiqh, Al-machad al-cilmi al-Firansi, 1964}, vol. 2, p. 888
®
See
the
al-Basri,
op.
cit.,
p.
888
89
{Dimashq:
the
connection of amarah and cillah is evident in what
follows:
When
reason
a
maslahah
It
...
not
be
to
indicates
found wherever
cillah and other
then,
related
that an
the
maslahah is terms
are
does not elaborate what
what
connection
which
he
mentions,
not
mention.
4.3
TWO
MAIN
is
basis
of
maslahah •
a
is
cillah is found.7
however, the
as
decide that it is the basis of
we
al-Basrl,
For
sign indicatesa quality (wasf)
correct
(cillah),
t
r
a
between
end for which
an
Al-Basri,
means.
•
these masalih
are
*
and
al-sharciyyah
al-masalih
and the other masalih which he does
STAGES
IN
THE
DEVELOPMENT
OF
THE
CONCEPT
OF
MASLAHAH •
•
the
In
advanced
maslahah
main
following centuries, however,
quite significantly.
the concept of
There are two
stages in the development of this concept.
One is
represented by al-Ghazall in the early twelfth century, the
other
AL-GHAZALI'S
4.3.1
In
of
by al-Razi in the early thirteenth century.
CONCEPT
al-Ghazali's is
maslahah
al-Basrl.
discussed
Al-Ghazall
its
"In
(d.
OF
1111) more
MASLAHAH •
•
Al-mustasfa,
the problem
clearly and fully than by
defines maslahah
as
follows:
essential
meaning (aslan) it (maslahah) expression for seeking something beneficial (manfacah) or removing something harmful
is
an
(madarrah). 7
—
Al-Basri,
op.
But
cit.,
p.
this is not what
805
90
we
mean,
because
seeking benefit and removing harm are the objectives (maqasid) (in usul al-fiqh) at which the creation (khalq) aims and the goodness (salah) of creation consists in realizing their goals (maqasid). What we mean by maslahah is the preservation of the maqsud (objective) of the law (sharc) which consists of five things: preservation of religion, of life, of reason, of descendants and of property. What assures the preservation of these five usul (principles) is maslahah and whatever fails to preserve them is mafsadah
Maslahah
the
of
its
denied
by
a
neither
basis the
of
third
its
The
qiyas.9
first
third, in
the
type which is
the type where there
favour,
nor
in
category is valid and can be the It is
as
From this angle there are three grades of
we
have
seen
above-mentioned
five
grade of daruriyyat.
^
textual evidence in
The second is obviously forbidden.
hajiyyat and tahsiniyyat
1970},
a
the element of maslahah contained in the
strength.
See
is
category is further examined from the viewpoint of
maslahah
the
definition
category which needs further consideration.
Accordingly, third
evidence
textual
above
second,
textual evidence; a
the
following three categories. First,
consideration;
contradiction.
8
in
type of maslahah which has
favour
is
the
maslahah".8
is
removal
understood
as
into
divided
then
its
and
al-Ghazali, vol.
Ibid.,
p.
1,
pp.
before, or
viz:
tazylnat.
daruriyyat, The preservation of
principles is covered in the
This is the strongest kind of
Al-mustasfa min
cilm al-usul,
286-87
284
91
{Baghdad: Muthanna,
maglahah.
The second grade consists of
munasabat
(occasions)
themselves
are
are
not
essential in
to realize the masalih in
necessary
The third grade is neither of the above but
general. exists
but
which
those masalih and
things.10
only for the refinement of
Keeping this classification in mind, only that al-maslahah
i.e
al-mursalah
that
which
is
not
supported
by textual evidence, will be accepted which has three darurah (essential), qatciyyah
qualities: kulliyyah however, a
it
(totality). The other two grades of maslahah, admissible if they are not supported by
not
are
specific textual evidence.
the
and,
called
istislah which
are
supported by
is
similar
to
istihsan,11
invalid.
hence
Al-Ghazall among
If these
reasoning is then called qiyas, otherwise,
the
text, is
(decisive) and
counts
istislah
along with istihsan
the methods of reasoning which do not have the same
validity that qiyas has. He calls such methods "usul mawhumah" on
-
those
imagination
or
principles in which the mujtahid relies on
his discretion rather than on
Tradition.12
The
10 11 12
above
Al-Ghazali,
op.
Ibid.,
2,
vol.
Al-Ghazali,
op.
definition
cit., p.
and
vol.
1,
p.
vol.
1,
pp.
classification
290
306
cit.,
92
274,
284
of
maslahah
have
a
particular place in al-Ghazall's structure of the
discussion of will
structure
the
usul
al-fiqh. A brief analysis of this
reveal
the
Al-Ghazall divides the
concept of maslahah.
discussion of
usul
place that al-Ghazall gave to
in his
book
Al-mustasfa
into
six
parts. Apart from the first two parts which deal with
introductory matters such introduction
to
methods
as
of
definition of usul and
an
logic, the remainder of the
parts discusses the following subject matters of usul: hukm
(command);
evidences)
al-adillah al-arbacah
i.e Qur'an,
(the four
ijmac and caql;
Sunnah,
-
interpretation and analogy; and taqlid (imitation) and ijtihad. The above treatment of maslahah appears as an annex
is
to
discussion
the
of
the
four
evidences.13
Also
it
significant that it is not discussed in the part
dealing with methods of interpretation and analogy, although its connection is implied. References
parts also. discusses
to
maslahah,
however,
In the part of hukm,
its
essential
meaning
appear
in other
where al-Ghazall
(haqiqah) and its four
components, maslahah is mentioned occasionally. components of hukm,
following: legislator,
13
Al-Ghazali,
(1)
according to al-Ghazali
hakim (the
sovereign);
op.
cit.,
pp.
one
(2)
who gives
are
93
the
judgment;
hukm (the judgment);
284-315
The four
the (3)
calayh (subject of judgement (4) mahkum flh (the
mahkum
object of judgement,
the act of mukallaf).
Discussing the meaning of hukm, he deals with the question of whether the goodness and
human
definition
above
meaning.14
course
of
(goodness) in
of maslahah
its
is similar to
essential
At one point he even uses the term masalih in
hasan.15
place of
(both
is known objectively or through sharc
His description of hasan
(law). his
divine)
badness of acts
or
his
He
frequently refers to mafsadah in the
analysis of mahkum fIh,
in dealing with the
question whether only voluntary acts
are
judgement
mafsadah for
not.
or
He
regards it
as
involuntary acts to be considered
a as
objects of
objects of
command.16
Reference methods he
of
to
is
maslahah
made
again in the part of
reasoning. Dealing with the method of qiyas,
explains that qiyas has four components:
root
to
which
which analogy basis
of
anology is made); is sought);
which
(3)
(2)
asl
(the
farc (the branch for
cillah (the
analogy is made);
(1)
and (4)
reason or
the
hukm (the
judgment to which analogy leads). Al-Ghazali maintains that
14 15
-1®
See
qiyas,
here,
al-Ghazall,
Ibid.,
p.
60
Ibid.,
p.
87
op.
must be distinguished from qiyas
cit., vol.
1,
94
pp.
56-57
in
philosophy. This distinction lies, apart from the difference
in
cillah itself.
cillah
cillah is sought the
explicit it
or
wa
tartib).
cillah is
istinbat
(sabab
istinbat
of
ijmac.
are
but
in which
the
(traditional), meaning The cillah is either
it is implicitly indicated (ima'),
or
,
from
known
"cause"
evidence
The
is "naqliyyah"
(sarIh)
is
different.
Sunnah and
Qur'an,
is not
Naturally then the methods of finding
also
are
in the conception of
reasoning,
cillah in fiqh
The
"sign".17
merely a the
form of
the
the
and order of the command
sequence
The fourth manner of finding the
(inference). The only valid methods
two:
al-sabr
(1)
al-taqsim
wa
(observation and classification; method of exclusion), and
(2) munasabah
munasabah
with
maslahah
that
sharc
is
as
main
a
defines
connected
of
the
with
meaning,
al-Ghazall
element
"munasib"
of
the
command
as
that
suitability
which,
(intadhama)
is achieved rationally
is
is in reference to
It
frequently discussed.
Al-Ghazall
magalih,
(suitability).18
(hukm).19
as
soon
classification and grades of munasib,
refers
17
18
^
See
and
to
maslahah
—
_
al-Ghazali,
Ibid.,
vol.
Ibid.,
p.
2,
as
the
annex
which
is
op.
are,
however,
cit., vol.
2,
295ff
297
95
p.
not
230
it
For a discussion
significantly
enough the discussion of maslahah and its grades. Munasib
like
identical.
Although al-Ghazall analyzes munasib also in terms of effectiveness
and
with maslahah,
of munasib,
significance for
istihsan and is
divided
is
suitable
evidence. is
nor
into
four
is
and
Second,
is
Fourth,
well in
the
difference between
the
as
of al-Ghazall. Munasib
eyes
categories:
first, a
the munasib which
specific textual
that munasib which
suitable
above
but
is
is neither
Third,
first
the
that
is suitable but
evidence.20 Al-Ghazali
classification
suitable
supported by textual
that munasib which
supported by textual the
he does
is of particular
one
supported by
not
as
Among the various
supported by the textual evidence.
evidence.
in
as
way
it explains the relationship of
as
istislah
munasib which
not
us,
maslahah
to
same
yet the details vary.
classifications
munasib
validity in the
is
adds that
category is
acceptable to all jurists. The second category is called istihsan which
clearly
means
to make law according to
personal discretion. The fourth is called istislah or al-istidlal
al-mursal♦
classification for
70
from
this
is
the
deciding the suitability
or
munasabah of something
istihsan
further
of
clear
maslahah
which
text
is
It
in
that
lacks.
But
—
—
op.
or
conformity to the
otherwise it will fall into the category
istihsan.
Al-Ghazali,
consideration
again the munasabah of maslahah
depends on its suitability general;
basic
cit., vol.
2,
p.
96
306
From
concluded
al-Ghazali's in general
fiqh in terms of
treatment
of
it
maslahah,
can
be
that his predilection for examining
theology21
and for qiyas
as
method of
a
reasoning, led him to examine the concept of maslahah with
reservations.
From
the
point of view of theology, he
rejected the concept of maslahah in terms of human
utility;
furthermore,
basis
revealed
of
he subjected it to scrutiny on the
texts.
Secondly,
he made the method of
reasoning by maslahah subordinate to qiyas. He did not reject maslahah altogether, the
as
he did with istihsan,
but
qualification he provided for the acceptance of
maslahah,
did not allow it to remain
an
independent
principle of reasoning. Furthermore,
with the above
concept of maslahah, other to
elements
maslahah,
al-hukm
which
such
as
are
in his
takllf
understanding of speech),
Al-mustasfa. necessary
21
_
that
In
the
quite relevant
fahm al-khitab
(the
tacbbud
niyyah (intention), etc.
haqiqat
The discussions of these
through various chapters in his
addition,
relationship
al-Ghazali did not
among
see
the
different categories of
—
Al-Ghazali,
much
scattered
discussion
(legal obligation),
(self consecration to God), are
on
he could now bring into focus the
(the reality of a rule),
elements
limitations
—
—
cit., vol. 1, pp. 5-7. Al-Ghazali complains the Transoxian jurists, such as Abu Zayd have tried to bring too fiqh into usul al-fiqh [p. 10] op.
97
maslahah.
of
Some
above
the
consideration
by
points
jurists after al-Ghazali, but
some
systematic consideration as
shall
we
4.4
THE
Al-Ghazali's
by
given to them by al-Shatibi,
was
OF
AL-GHAZALI
ON OTHER
classification
Khaldun
influence
is
Al-mustasfa later
reformulated in
then
for
later
number were
of
and
be
See
later
HanafI
Ibn
usul
influence.
mentioned
(646/1249)
22
a
As
that
major
sources
until
usul,
of
the appearance
Al-mahsul.22
above
works
two
and
concepts. Al-Razi's Al-mahsul
source
This
works.
in
the
of
commentaries
ShaficI
must
number
on
work
combined
became
usul
written
MalikI to
turn
a
remained
writers
monumental
Al-mahsul
strong.
very
al-Basri's book Al-muctamad and
noticed,
for
al-Razi's
of
were
number of jurists. His influence,
a
al-Ghazali's
JURISTS
and definition
particularly in reference to maslahah, Ibn
more
later.
see
INFLUENCE
followed
taken into
were
and
of
considerable
influence
is
abrigements
influence
evident on
from
Al-mahsul that
periods. This work influenced which We
has
need
not
al-Qarafi
so
go
far
the
taken
even
exception
into details, but it
(684/1285),
Ibn Hajib
and Ibn cAbd al-Salam with whom al-Shatibi was
Khaldun,
Al-muqaddimah,
[Cairo:
98
Bulaq,
1320 A.H],
p.
431
familiar
and
influence
in
of
general opposed, al-Din
Fakhr
al-Razi's
Al-mahsul23
Al-Razi's
i
is
■
largely under the
were
(606/1209) Al-mahsul.
structured
more
on
the
pattern of al-Basri's Al-muctamad than on al-Ghazali's Al-Razi
Al-mustasfa.
basic
hukm
and
more
than
the
about
of
the
Significantly enough,
meaning and classification of
the
this
of
chapter.
The scheme of the rest of
chapter is exactly the same as that of al-Basri. to
introduction,
maslahah
with,
are
the
commands
4.5
AL-RAZI'S
of
Al-Razi
as
of finding cillah is
manner
a
discussed
one
Sharlcah
the
CONCEPT
does
as
not
OF
of
the
with
leads in
man
each
•
—
maslahah,
al-Din
-
are
it
seems
-
Al-mahsul
1039
quite closely
(yuwafiq)
to him
-
fi usul al-fiqh,
[L- 643]
99
that
munasib is defined
agreeable
—
al-Razi,
University, Nemoy, A
is
but
(tahsil) and "preservation"
—
-
Fakhr
qiyas.
•
First,
other.
"acquisition"
to
MASLAHAH
define
what
to
of knowing
ways
in addition
thinking munasib and maslahah
associated "what
is
and in the last chapter where al-masalih
al-mursalah
his
in the
therefore,
the question of goodness of acts
where
question of munasabah dealt
made,
are
The
in the chapter concerning qiyas where the
discussed,
both
definitions
question of the goodness of acts constitute
half
references
in
the
introduction.
the
discussion
the
the
in
terms
with
deals
MS.
Yale
as
(ibqa').24
its
(mulaim)♦
in
and
alam
second
is
which
in
positive
The
achieve what
to
which is alam (pain)
munasib
the
is
is explained similarly
Ibqa'
(madarrah),
Thus
Ladhdhah
means.
ladhdhah
to seek
(manfacah), and manfacah is pleasure (ladhdhah)
"utility" or
He explains that tahsll means
are
its
evident
final
sense
and
as
its
or
need
is
suited
removing harm Both
means. not
be
defined.
analysis is related to ladhdhah
and to alam in the negative
definition of munasib
usually suited
(fi al-cadah)
is
given
sense.
that
as
to the actions of
wise.25
the
Al-Razi
then
maintains
that
first
the
definition
accepted by those who attribute hikam and masalih causes
of
God's
commands.
definition
second
The
is
as
is
employed by those who do not accept the above
causality.26 This explanation view
own
This
on
of
rational
much
problem of causality and God's commands.
question is first dealt with in the
discussion is
the
takes us back to al-Razi's
as
the
or
whether
the
goodness
established
by law.
25
26
See
Fakhr
al-Din
al-Razi,
op.
He argues
(of man)"
cit., part II,
Ibid. Ibid.
100
of
badness of things
definition and understanding
something "suitable to nature
2^
or
course
that in as
of good or
f.
as
87a
as
"a quality
of
perfection" is concerned, undoubtedly good and bad
rational. and as
bad
The
point in question is, however, whether good defined with
be
can
are
the Muctazilah
reference
praise
to
blame
or
done.27 Al-Razi, after detailed
have
analysis, concludes that,
if defined in the latter
good and bad can be established only by
law.28
sense,
The
question then is whether what is praised in God's commands
corresponds,
can
this correspondence be understood
Al-Razi
answers
this
discussion of munasabah. munasabah
of
first,
people;
a
maslahah;
of
that
probable is
command he
this
establishes
issued
because
contradiction maslahah terms
2 7
of
—
the
Ibid.,
f.
Al-Razi,
the
of
first
that
it
can
condition He
that
the
cit.,
part
f.
9a
II,
f.
90b
101
proofs,
commands
explains, however,
(human need);
part I,
the
be shown
maslahah.29 Giving six
Muctazilah the fuqaha'
cit.,
to be
that the case in question
13a op.
three premises
issued the commands for
general significance
op.
that to prove that
for God issuing this particular
masalih. the
are
and third,
particular
to
—
Al-Razi,
argues
second,
reason
gharad
as
He
that God
the
consists the
question in detail in his
cillah, there
be
can
established: masalih
as
motive?
or
cause
If it
corresponds with the rational good or not.
are
that in
do not
regard
they rather view it in
(macna)
or
hikmah
(philosophical basis).
In fact,
difference
two
between
follows:
as
the
whereas
the
positions. The difference is
Muctazilah believe that God is
obliged to consider maslahah, is
obliged to do
not
grace.30 third a
there is not much
so.
the fuqaha'
God has done
so
stress
that He
because of His
The second condition needs no explanation.
condition,
that
this particular command attributes
specific motive to God's acts and commands,
position which al-Ghazall does not this
resolves
The
is
a
accept.31 Al-RazI
problem by explaining it in the following
terms:
"Muslims
believe
heavens,
the
that the revolving of the rising and the setting of the stars, the continuity of their forms and the lights are not obligatory, yet it has been God's custom to continue them in one state. Inevitably it provides the probability that this (i.e what happens today) will continue tomorrow and after tomorrow with the same qualities... To sum up, if a certain thing occurs repeatedly many times, it gives the probability that when it happens (next) it will happen the same way... Now, when we observe sharaic (laws), we find that the commands and masalih occur together, without being separated from each other, this is known
inductively...32
To
can
be
sum
__
32
God's
that
God's
commands
f.
cit., part II,
op.
Al-Ghazali, Ibid.,
to
acts are
or
for
—
Al-Razi, 31
al-RazI stresses that
attributed
admits
in
up,
op.
cit.,
f. 91b
part II,
f.
92b
102
92a
no
motive
commands; the
or
cause
yet he
maslahah
of
the
people, and this maslahah or munasabah can be considered as
an
cillah for
command.
that
The
paradox in this
position is resolved in two explanations: these
masalih
coincidental
are
accidentally, not in terms of
with cause
God's
first,
that only
acts,
and effect and,
secondly,
that it has happened this way not as a
necessary
correlation between maslahah and command,
because
God
God
acted
has
established
Al-Razi the
is
not He
has
as
make
His
command
as
to
obliged to act in this
has
offered
a
Grace,
these
so
Rather,
way.
that
a
sign
may
be
known.
explanations in view of
possible objections against his admission of taclll
afcal Allah
(to attribute causes
to God's acts).
It
is
significant to note that al-Razi recounts the possible criticism of is
very
consists
his
short and quite unsatisfactory. of
more
Al-Razi's two
main "We
position in detail while his
than
ten
to
answer
points in his
own
defence
The criticism
objections.33 this
criticism
answer
are
have
as
is
very
brief,
follows:
explained that God's commands are issued (mashrucah) because of the masalih. As to the rational arguments that you have enumerated, they are not applicable here (ghair masmucah). Because if they are established, they would infringe upon the legal obligation (taklif), whereas the controversy over analogy whether in favour or in opposition, is based on the acceptance of the obligation. This well-considered answer is
33
See
al-Razi,
op.
cit.,
ff.
92
-
97
103
sufficient
for
all
what
mentioned".34
have
you
"Secondly, your criticism applies to those who mantain that to attribute masalih as Hillah to God's commands is rationally necessary. It is not
applicable to the one who holds that it is not obligatory for God but He has done so because of His Grace".35
al-Razi
Thus
masalih that
evidence
were
God's
could maintain
commands
reservation definition
munasib.
of
divides munasib
no
al-Razi
that
into
motives.
is
in
consists
the
fact
it
of
hereafter.
this
also
the
reason
a
(true)
in
appears
al-Ghazali,
this
world
haji and tahsini.
ta'thir
(effect) and shahadat al-sharc
evidence),
He divides munasib according
(textual
mula'amah (suitability).37
and
generally in agreement with al-Ghazali.
36
37
Al-Razi,
one
to be a munasib;
With the
exception of certain differences of detail, he is
35
or
in
al-Razi also divides maslahah into
daruri,
34
and
Haqiqi is that munasib
maslahah
Iqnaci only
he
that
not.36
is
Like
either
is with
It
categories: haqiqi
iqnaci (seemingly convincing). which
or
apparently accepted the first
This
two
munasabah
cillah, and could still insist
for
had
that
op.
cit.,
f.
97b
Ibid.
Ibid.,
f.
Ibid.,
ff.
88b 87
-
90
104
to
In
the attempt at expressing the concept of
general, in
maslahah
theological terms by al-Ghazali
by al-Razi with much that
conception of maslahah with reference to human
a
benefit not
objection
independent of God's determination,
Al-Razi
is
this general
gave
specific theological content. He made it
a
that
even
in
maslahah
attribute
to
and
alone
theologically possible.
clear
Al-Ghazali objected
emphasis.
more
completed
was
attribute
to
terms
of
the
consideration
benefit
human
to
God's
of
commands,
is
causality to His acts and hence
theologically impossible. Both of these positions led to a
kind
of
demand
commands of
ijbar
maslahah. -
»
If
(determination)38 obedience there
their
existed
Sharicah,
it
was
accident,
as
al-Razi held.
to
in
Both implied that God's
the
right,
own
not because
of maslahah
content
a
a
in
be explaned by the grace of God or These positions
rendered the
question of moral and legal responsibility meaningless. Al-Razi the
admitted
such
question of taklif
reasoning by analogy,
implications of his position for as
well as for the problem of
but he did not elaborate it
further.
Briefly, the concept of maslahah which originally as
18
such
a
a
general method of decision for
free
principle,
came
—
was
jurists and
to be limited by the
—
—
probably this is the ijbar which al-Shatibi refers, Al-muwafagat, vol. 1, pp. 19 - 20 Most
105
see
by
opponents of
this concept through two considerations.
First,
was
to
there
define
theological determinism which tended
a
maslahah
whatever
as
God
commands.
Second,
there
was
a
avoid
the
apparent arbitrariness of the method,
methodological determinism which, aiming to
subject maslahah to qiyas definite
First,
basis.
even
to
some
criterion
be
to decide
outside
This
was
determinism denied. the
to link it with some more
that
were
inadequate.
something is maslahah,
that God's commands are based on maslahah,
say
accepted.
seek
as
considerations
Both
in order
so
tried to
these
reasons
has
inevitably to
precisely what theological
Second,
cillah, which
theological
commands
or
to proceed by qiyas,
was
either
was
interpreted
one
must
denied because of so as
to mean
"sign". The implication of this position is obvious. On the
in
be
must
it insisted that further
hand,
one
units;
every
new
specific link in Sharicah. as
whole.
a
into
needs
On
the
other
deduction must have
a
it
because
refused to take social
it insisted upon
deducing laws from specific rulings of Sharlcah, from
4.6
the
THE
PERIOD
If
not even
general intent of the law.
MAIN
TRENDS_OF THE CONCEPT OF MASLAHAH DURING THE
BETWEEN
we
may
AL-RAZI
AND
AL-SHATIBI
take general note of major works on usul
during the period between al-Razi and al-Shatibl, see
rules
It denied the extension of law
hand,
consideration,
extension of
further
trends
in
these
works.
106
The
first
trend
we
can
refers
to
those
to
that
whose of
al-Razi
al-Ghazali's maslahah.
conception of maslahah is either similar those
or
and al-Razi's
Among Maliki
who
have
simply juxtaposed
definitions
of
munasib
and
jurists Shihab al-Din al-Qurafi
(684/1285)39
and among Hanafis Sadr al-Sharicah al-Mahbubi
(747/1346)40
stay closer to al-Razi. Accepting al-Razi's
criticism of maslahah, raised
serious
defined
and
Jamal
al-Subki
doubts
al-Qurafi whether
maslahah
(771/1370)42
al-Asnawi
(771/1369)43
second
al-maslahah
trend
refers
al-mursalah
as
a
to
those
in reference
jurists who reject
valid basis
Al-Q3rafi, Tanqih al-fusul fi cilm al-usul, {Cairo: Matbacah Kulliyyat al-Sharicah, 1961],
49
Sadr al-Sharicah al-Mahbubi, Al-tawdih tbacah Bosanawi, 1304 A.H.}, pp. 536-540 See
M.
Khalid
wa
of
reasoning.
In
in Al-dhakhirah pp.
144 -46
al-tanqih
Mascud, Islamic legal Philosophy,
{Cairo:
[Islamabad,
Ma-
1977],
235 al-Din
Jamal
Minhaj al-wusul al-tahbir 43
the Hanafi
(482/1089),
39
42
Sacd
al-Razi.
The
p.
be
combine al-Ghazali and al-Razi.
position, mainly that of Pazdawi
41
ever
and Taj al-Din
(792/1290)44 interprets
al-Din al-Taftazani
to
could
He
terms.41
justified in clear
al-Din
further.
went
even
al-Asnawi, Nihayat on
al-usul, Commentary on Baidawi'S Ibn Amir al-Hajji's Al-taqrir wa 1317 A.H.} vol. 3, pp. 134-140
the margin of
{Cairo: Bulaq
,
Taj al-Din al-Subki, Jamc al-Jawamic in cAbd al-Rahman al-Bannani,
Hashiyah cala matn 2,
pp.
44
Sacd
jamc al-jawamic,
{Cairo: Mustafa Babi, 1937}, vol.
270-285 al-Din
Bosanawi,
1304
al-TaftazanT, A.H.} vol. 2,
Sharh pp.
al-tawdih
548-683
107
wa
al-tanqih
{Cairo:
this
category fall the ShaficI
(646/1249)45
al-Amidi
(646/1249)46
them
To
follow
maslahah
a
and the MalikI,
Ibn Hajib
their arguments against al-maslahah
In
both
al-mursalah
jurist Sayf al-Din
is
al-Ghazali
rather
than
al-RazI.
acceptable only if it is textually
supported.
third
The
is
trend
illustrated
by the ShaficI
jurist, cIzz al-Din ibn cAbd al-Salam (660/1263). He inclined
inclination
towards
of
treatment
the
Sufistic
The
masalih
masalih of
this
The
can
former
noticiable
interpretation of law in his
world be
means
(happiness) and the
are
then
and
known
only be known by naql
45
a
concept of maslahah.
(pleasure) and farah
them.48
is
There
cAbd al-Salam maslahah
Ibn
To
tasawwuf.47
towards
was
by
divided
into
the masalih
means two
the
leading to
kinds: hereafter.
while the latter
reason,
(tradition,
of
ladhdhah
revelation).49
Sayf al-Din al-Amidi, Al-ihkam fi usul al-ahk'am, vol. 4, pp. 215-217
can
In view
{Cairo: Matbacah
Macarif, 1914}, 48
Ibn
vol. 4^
2,
Ibn
Hajib, Mukhtasar muntaha al-usul {Cairo: Bulaq, p. 289 cAbd
Al-Salam
was
initiated
into
1317
A.H.}
Suhrawardiyyah Tariqah
the
joined the Shadhiliyyah relationship with Ibn cArabi has, however, been a subject of dispute. For details see Ridwan cAli al-Nadawi, al-cIzz ibn cAbd al-Salam, {Damascus: Dar al-fikr, I960} pp. 103 - 110 [Sufistic order].
Tariqah.
48
He
is also claimed to have
His
cAbd al-Salam,
Qawacid al-Ahkam fi masalih al-anam, {Cairo: Istiqamah, n.d.} vol. 1, p. 10
49
See
Ibn
Ibn
cAbd al-Salam,
op.
cit.,
vol.
108
1,
p.
10
of
the
the masalih differ
people's knowledge, however,
according to the level of the approach of the people. lowest
of
level
masalih
which
that
Higher than this is the level
men.
(the wise people) is
is
masalih k
of
s_
The awliya'
reason
is
commands
the that
and
hereafter the
laws
common
to
all
which the adhkiya'
on
conceive the masalih. The highest level
peculiar to the awliya'
Sufis) alone.
is
The
Allah (friends of God, and asfiya' those
to
awliya'
are
of
(pure)
the
prefer the
this world.
The
anxious to know His
(in their reality),
hence their
investigation and reasoning (ijtihad)
is the most
complete.50 Elsewhere,
into two major divisions.
"rights" of
God,
fall God
second, men
and second,
into such
such
Ibn cAbd al-Salam divides masalih
three as
the
rights of
categories:
macarif
First men.
are
as
the rights
The rights of God
rights which belong purely to
(gnosis) and ahwal
(mystic states);
rights which combine rights of God and those of as
zakat
(alms);
and third,
those which combine
rights of God, and of His Prophet, and of the people in general.
The rights of men are also of three categories:
rights of nafs and
rights of
rights of animals toward
Ibn 51
(self),
cAbd al-Salam,
Ibid.,
p.
op.
cit.,
p.
men
men.51
24
129
109
toward each other,
The
his
above
references
Qawacid al-ahkam,
which
recurrent
are
indicate that Ibn cAbd al-Salam's
legal thinking was deeply influenced by mysticism. instance,
realization of
which aimed
where
usul
al-fiqh.
details
of
history.
rights
Sufi
the
came
to permeate
is not possible at this point to go into
It
It must,
conception of human masalih and its be pointed out that at
however,
a
very
rejection of huzuz al-nafs became significant as a
(pleasures of the animal soul) of
lower in rank than one
conception of masalih
early stage in Sufism,
means
as
maslahah aiming at
Ibn cAbd al-Salam represents the stage
Sufi
the
such
a
macrifah and ahwal.
at
fact,
In
For
although he did not reject huquq al-nafs
(rights of the soul), he considered the
in
themes
controlling the nafs.
al-Lumac, huzuz al-nafs
In Sarraj's
(378 A.H.)
frequently opposed to huquq
are
al-nafs.52
Zuhd
(denial of worldly pleasures)
huzuz.53
abandoning the
52
R.
A.
Nicholson
fi
al-tasawwuf,
of
terms
sawwuf
cf.
Abu
ed.
Luzac,
al-Babi,
pp.
5-6
—
—
I960},
r
Al-tacarruf li Madhhab ahl al-ta¬ p.
[Wiesbaden:
23; Najm al-Din Rubra, Fawaid Steiner, 1957], p. 71
[text]
Sarraj, Kitab al-Lumac fi al-Tasawwuf
Ruwayn b.
—
in Abu Nasr al-Sarraj, Kitab al-Luma^ 1914], p. 134. For this opposition
al-Kalabadhi,
Fritz Meier,
[Introduction], See
Bakr
as
The huquq are defined as ahwal,
Comm.],
[London:
(Cairo:cIsa
al-jamal,
[Ed.
is defined
Ahmad}
110
p.
47,
(quoting Sufi
its
had
Huzuz
apparent connection with masalih,
in
allowance) warac
of hardship.
case
(piety) and ikhlas
huzuz.
tasawwuf
obvious
An on
them
"when
faqlr
(holy man)
his
to
huzuz
him and
of
ibid., Abu
56 57
Abu
p.
violates
the
still stronger. Abu al-Hasan al-Shadhill
used
to define
tawhld
as
a
curse
(oneness of God)
al-nafs.57
from God when someone is found so
to be barred from cubudiyyah
336
cAli, 1948},
p.
Al-risalah fi cilm al-tasawwuf,
See
cAbd al-Halim Mahmud, Al-madrasah al-shadhiliyyah
n.
{Cairo:
181
above
54
al-Hasan al-Shadhuli, p.
in
He also
See
A.H.},
mutual
period of al-Shatibl, the opposition
al-Qasim al-Qushayri,
Muhammad
with God and
he
God.55
indulging in the huzuz
55
falls down from the level of
abandoning the huzuz
explained it
54
to his disciples where he
with whom Ibn cAbd al-Salam is claimed to have
connections,56 terms
the
to
appears
(656 A.H.)
be seen in
to that of rukhsah of Sharlcah,
covenant
between
Closer
may
against opting for such allowances because
haqlqah (reality) dissolves
required abandoning
example of this encroachment of
fiqh and usul al-fiqh
advised a
The Sufi stress on zuhd,
(devotion)
al-Qushayri's wasiyyah (will)
bond
and
particularly, with the question of rukhsah (legal
more
of
etc.54
(high ranks),
maqamat
{Cairo:
Dar
130
111
wa
al-kutub al-hadithah,
Imamuha
1387
(servitude).58 cAbbad al-Rundi
Ibn
with whom al-Shatibi
(792/1390), in
was
the famous Shadhuli,
correspondence
on matters
relating to tasawwuf and fiqh, also stressed the
rejection of huzuz. Commenting sayings) of Ibn cAta' Allah, nafs if
on
the Hikam (wise
Ibn cAbbad said that "the
always seeks huzuz and turns away from huquq;
you
are
confused in two matters,
harder
for
the
hikam he
needs)
nafs.59
a
is
provide
achieved
not
because
in
sawm
sawm
and
serious
utility.
Sufi
60
b.
cAbd
there
or
is
a
salat
(praying),
possibility of hawa
(lust).60
of
obligation to God,
thus, had
It not only denied human interest as a basis of but also
al-Halim Mahmud,
insisted
op.cit.,
p.
on
abandoning human
137
Ibn cAbbad al-Rundi, Sharh al-hikam li al-Imam Abi al-Fadl Ahmad cAta' Allah al-Iskandari, {Cairo: Mustafa Afandi, 1320 A.H.}, p.
99
60
Situations of
implications for maslahah in terms of human
consideration,
58
view
(fasting)
salat
(desire) and shahWS
The
Ibn cAbbad
disciple with purity of heart, which
a
by
the
contrary to an ordinary Muslim,
pleasure by loosing his huzuz.
neediness
on
(trial by wants and
happy occasion for the disciples",
explained that the Sufi, finds
commenting
"the coming of faqat
says:
is
always choose what is
in
Elsewhere
hence
Ibid.,
p.
106
112
interests
to
purify the obligations
obedience
to
God".
These
implications
recognized by the jurists. Sufi was
view,
but
either
led
"complete
as
were
not generally
Ibn cAbd al-Salam accepted the
in his attempt to synthesize the two, to
deny the masalih
he
of this world
altogether, or to accept the two on separate grounds.
The
fourth
trend
is
represented by Ibn Taymiyyah
(728/1328) and his student Ibn Qayyim al-Jawziyyah
(751/1350).
Ibn Taymiyyah tried to find
between
two
the
extremes
acceptance of masalih. similar
al-mursalah
of
total
a
middle
way
rejection and total
He considered al-maslahah the
to
methods
of
ra'y, istihsan,
kashf
(mystic revelation) and dhawq (mystic taste)
whose
validity he
them.
On
the
was
other
suspicious,61
hand,
he
of
and hence rejected
refuted the moral
implications of the denial of maslahah to the commands of God.
Ibn one
of
Taymiyyah also counts al-maslahah al-mursalah
the
seven
ways
as
of knowing the commands of God,
along with the traditional
sources
al-maslahah
follows:
al-mursalah
as
of law.
He defines
a decision) when a mujtahid considers particular act seeks a benefit which is preferable, and there is nothing in sharc that
"(It is
that
61
See
Ibn
khawariq Manar,
a
Taymiyyah,
al-cadah,
1349 A.H.],
in
Qawacid fi al-mucjizat wa al-karamat wa anwac Majmucat al-rasail wa al-masail [Cairo:Matbacah
vol.
5,
p.
22
113
Ibn
al-maslahah
to
istihsan and
opposed to maslahah,
in
hah
certain
a
citation
in
the
Either
meant.
to
on
legislate in
observer
does
maslahah
at
there not
all.64
to
be
is
there
found,
The
or
is
one
obvious
reason
no
Sharicah
finds masla¬
supporting
only two things are
definitely is
know
Haqli
He admits that
but when human
where
case
text
tahsin
reasoning).63
(legislation through is
is
al-mursalah
argue
religion, and God has not permitted this. To
similar
is
so
of
of
matters
do
Taymiyyah, however, concludes that to
basis
the
(consideration).62
this
opposes
a
text which the
not
dealing with
assumption in Ibn
Taymiyyah's arguments is that all the possible masalih already given in the text.
are
of
course,
maslahah.
The other assumption is,
that all of God's commands The
latter
are
based
on
assumption is of particular
significance to Ibn Taymiyyah,
as
moral
matter which he stressed
very
responsibility of
man,
a
it has to do with the
much. He condemned both the Muctazilah and the
Jabriyyah in reference to the question of maslahah. Muctazilah argued that God
fi 9
63 64
Ibn
Taymiyyah,
Ibid.,
p.
op.
cit., vol.
is obliged to command only
5,
23
Ibid.
114
p.
22
The
is
what
good for man.
They conceived God's actions
analogous to man's actions.
as
They assumed that whatever is
morally obligatory for man must be obligatory for God. Ibn
Taymiyyah refuted this. But he also refuted the
Jabriyyah position that God's commands
not based on
are
maslahah.
He
questioned their assumption that the
intention
of
maslahah
The
is
Jabriyyah argued that
iradah
(will).
limitation
a
command does not necessitate
a
Ibn Taymiyyah saw in this argument a
theological advantage, but morally such harmful. two
clarified
He
kinds
of
iradah;
in
that
commands
He
God
to
was
there
are
al-iradah al-sharciyyah al-diniyyah
and al-iradah al-qadriyyah
(the potential creative will). When God wills
the
first
kind
of
consideration of maslahah,
The
doctrine
a
reference
(the legal and religious will)
al-kawniyyah
God's acts.
upon
will.65
or
as
following Ibn Taymiyyah, often calls it,
(polity), plays
an
Ibn Qayyim,
siyasah
important part in explaining legal
obligations, legal reasoning and legal change in Ibn Qayyim's Iclam al-muwaqqicin. He expounds the principles of
Hanbalis
sources
and
fiqh, and enumerates the following five
principles:
(1)
Companions of the Prophet; of
65
the
See
Companions;
Ibn
Taymiyyah,
(4)
op.
Nass;
(3)
(2)
p.
30
115
The fatawa of the
Selection from the opinion
Hadith mursal
cit.,
as
(a report of a
saying of the Prophet which lacks
a
link in the chain
going back to the Prophet); and (5) Qiyas li
al-darurah.66 that
sourcres
Ibn
it
Thus the
in
is
reference
to
the
consideration of maslahah
three
is
expounded.
Qayyim explains that it is valid to attribute cillah
to
the
commands
of
the
Prophet themselves are replete with examples where
reasons
are
of
God,
because the Qur'an and the Sunnah
given to explain the
command.67
The larger
part of the Iclam is devoted to illustrating how various commands hikmah
are
or
The
his
based
certain
which
reasons
he
calls
maslahah.
following
views
on
on
"fatawa may
contains
passage
maslahah.
In
a
a
clear statement of
chapter where he explains how
change according to the change in time and
place, etc..." he says: "This
chapter is of great significance. Due to ignorance of the matters [to be discussed in this chapter] grave errors have been committed in reference to Sharicah. As a result hardship and severity has been brought forth [upon people]. Such obligations have been imposed as are not required, if one judges by the magnificent Sharicah which keeps the highest level of masalih♦ The foundations of Sharlcah are laid on the
the
hikam and masalih
al--ibad,
in this world of
living (macash) and in the world of return (macad). The Sharxcah is all justice, kindness, masalih and hikmah. Hence any case which departs from justice to injustice ... from maslahah to mafsadah is not part of Sharicah even though it has entered there by ta'wil ...
66
1, 67
See
pp.
Ibn Qayyim, 29-32
Ibd.,
p.
Iclam al-muwaqqicin,
197ff
116
[Cairo:
Sacadah, 1955], vol.
(interpretation),68
fi fl
Ibn
Qayyim,
op.
cit.,
vol.
3,
117
Chapter 5 AL-SHATIBI'S
TREATMENT
'
OF
MASLAHAH •
5.1
THE
MAQASID DOCTRINE
The
Islamic
al-Sharicah"
jurisprudence regards "maqasid
or
the
ends
and
basic doctrine.
The
laws
of
because
are
Maqasid al-SharIcah and that
human
goals of the Sharicah as the
Sharicah
are
its
promulgated
they conform with the objectives of God and the
objectives of God
one,
•
or
also the masalih of mankind. the goals and ends of Law are thus
is maslahah
the good and welfare of
or
beings.
The
"maqasid doctrine"
is based
on
a
generally
agreed premise which is theological in its origin. The
premise is that God instituted the sharaic masalih
(benefits,
future.1
and
opinion
There
among
good)
(laws)
for the
of the people, both immediate
exists,
however,
a
difference of
scholars concerning the details of this
premise.
The
mutakallimun
accept the general and apparent
meaning of the premise, yet they differ from about
of
1
2,
whether
cilal
See p.
the
(causes).
al-Shatibi
masalih
are
to
be
As we have seen
Al-muwafaqat,
one
understood
in the
case
[Cairo: Mustafa Muhammad,
6
118
in
another terms
of
n.d.],
vol.
al-Ghazall
explicit
as
God.
them,
For
the Ashcari
and al-Razi,
well
as
implicit causality in reference to
the premise implies that God is obliged by
consideration of masalih
the
Since
such
obligation
an
theologians reject
to
act
proposes
in
a
certain way.
limitation
on
God's
omnipotence, the Ashcaris reject the idea that the masalifr the
of
the cilal
are
of sharaic.
They,
however,
accept
premise by interpreting the masalih to be the "grace" God,
rather
than
"cause"
the
of His acts.
On
the other
hand,
the Muctazilah,
God's
omnipotence, yet believe that God is obliged to do
though they too maintained
even
good. Consequently they accepted masalih
as
the cillah of
Sharlcah.2
The
God's
theological disagreement initially concerned but
acts,
Qur'an
it
was
in the
extended to God's commands
they constitute His acts of speech. Thus the
as
theological disagreement manifested itself in usul al-fiqh
as
Theological arguments penetrated into
well.
usul
al-fiqh also because
were
theologians.
Usui
and
2
See
M.
Research O J
al-fiqh, however,
method
a
a
Khalid
of
on
required
of thinking
a
manner
reasoning different from that of
Mascud,
Institute,
number of writers
Islamic legal philosophy,
1977],
p.
usul
kalam.3
[Islamabad:
222
—
Kalam
expos
is
that
part of theology which deals with dialectical
it ion
119
Islamic
Legal thinking necessitated that the volition for
voluntary human acts must be attributed to is
man
himself if
to
be
held
obedience
to
Divine
volition,
the Command must be shown to be motivated by
man
legally responsible for his acts. Commands
consideration of
the
thus
depends
interests.
human
Since
human
on
Consequently,
the
premise of masalih must be accepted in usul in terms of "cause".
The
in
usul.
usuliyyin
Some
in order
others,
views,
premise of masalih
redefined the
connotation of sense
it
was
kalam
to
usul,
change. usul,* m
5.2
to be
we
For
came
to be generally accepted
(lawyers),
such as al-Ghazali and
consistent with their
term
"cillah"
so
as
to
theological rid it of the
"causality" and "motivation" in which
used
the
and
disputed in kalam. Passing from
term cillah
thus underwent
a
semantic
the explanation of the meaning it acquired in
now
turn
THE MEANING
Al-Shatibi
OF
to al-Shatibi. •
CILLAH
IN
USUL
explains that
al-Razi4 held
that like His
acts,
God's commands also cannot be analyzed in terms of
cilal
(causes)
Commands the
whereas the Muctazilah believed that His caused
were
masalih of
the
people.
cilal be established
4
For
al-Razi's
views
(mucallalah) by the consideration of
on
Since it
for
al-ahkam
this
point
120
see
was
inevitable that
al-sharciyyah (the
chapter four above
rules the
of
usul
rule
Sharlcah), the cillah came
known
interpreted
used in connection with
as
"the sign that makes a
specifically".5
Al-Shatibi established
be
to
as
argues
that the premise of masalih can be
Sharicah by method of
in
induction, both
as
a
general theme in Sharicah and in the description of the cilal of various commands Qur'an explains
jihad
as
After
For
the reasons for ablution,
being cleanliness,
oppression,
detail.
in
instance,
the
fasting and
piety and eradication of
respectively.6 explaining this premise,
let's
now
proceed to
explain the details of maqasid al-Sharicah in relation to the
theory of al-masalih al-mursalah.
There are five
aspects;
four in relation to the Lawgiver, and
relation
to
the
mukallaf
doctrine
The
establish maslahah
in
in
(subject of command).
maqasid al-Sharicah is
of
one
an
attempt to
particular and al-masalih
al-mursalah
generally as essential elements of the ends
of
law.
primary objectives
is
the maslahah
The
Sharlcah
of
concern
the
the
(maqasid) of the Lawgiver The obligations in the
people.
attainment
of
the
maqasid of the
Lawgiver which in their turn aim at the people attaining their
5
6
See
masalih.
al-Shatibi,
Ibid.,
p.
Thus
op.
maqasid and maslahah
cit.,
vol.
2,
7
121
p.
6
(or al-masalih
al-mursalah) to
become interchangeable terms with reference
obligations of the Sharicah.
the
Al-Shatibi
defines
the
concept of maslahah as
follows: "I
by maslahah that which
mean
subsistence
of
concerns
the
life, the completion of man's livelihood, and the acquisition of what is emotional and intellectual qualities require of him, in an absolute sense".
This
the
definition of maslahah
Al-Shatibi,
sense.
other
is
human
however,
takes
in which maslahah
senses
in
its
absolute
into account various
can
studied.
be
The
ma?alih belong either to this world
or
to the world
hereafter.
be
seen
Further,
the masalih
can
belonging to different grades and with
a
as
a
system;
definable
relationship with each other. second
The
idea of that
the
in
the
meaning of maslahah is the
"protection of interest". Al-Shatibi explains
the
either
element
Sharicah deals with the protection of masalih
in
a
positive
existence
of
manner
masalih
support their bases.
Or
as
the
when,
in order to
preserve
Sharicah adopts measures
in preventative
manner;
to
to
prevent the extinction of masalih it adopts measures to remove
7
any
Al-Shatibi,
elements which are actually or potentially
op.
cit.,
vol.
2,
p.
25
122
masalih.8
disruptive of
Al-Shatibi,
do most of
as
maqasid like the masalih
hajl
daruriyyah
into daruri
and tahsinl
(needed)
the usuliyyin,
(necessary),
(commendable). The maqasid
called necessary because they
are
divides the
are
indispensible in sustaining the masalih of din (religion and
the
hereafter)
if
that
(this world)
the
world
in
the
termination
it
hereafter
As
is
disrupted too. life
of
results
have
we
darurI
seen
sense
in
in
Their disruption results the
losing salvation and
before
with
(self),
nasi
that
these
five
the
blessings.9
regard to masalih
(family), mal
caql (intellect).10 Scholars,
observed
and in
world,
category consists of the following:
(religion), nafs and
in the
they are disrupted the stability of the masalih
of
the
and dunya
says
principles
are
that
din
(property)
al-Shatibi, have universally
accepted. Analysing the aims of the sharci obligations, find
we
The
that
sharcI
which
positive
obligations be
can
Sharicah also considers
termed
group
can
■»
9
10
op.
p.
(transactions);
8
Ibid.
Ibid.,
p.
groups
The
cibadat (acts of worship), cadat
includes
cit.,
necessary.
be divided into two
w
Al-Shatibi,
as
positive and preventitive.
(practices) and mucamalat
o
them
10
123
and falling
into
the
preventive
group are
cIbadat aim at
jinayat
attainment
the
of
(penalties). the
masalih
of
din.
Examples of cibadat are belief and the declaration of faith
(the oneness of God and the prophethood of salat
and
ha j
j
(prayer),
(pil^yimage)
.
(self) and caql
nafs
clothing and shelter
(alms),
jinayat
as
siyam (fasting)
cAdat aim at the protection of (intellect). are
Seeking food, drink,
examples of cadat.
protect the nafs and caql.
also
a
zakat
Mu^anomaeQ
Mucamalat
Al-Shatibi defines
those which concern the above five masalih in
preventive
manner;
they prescribe the removal of
impediments which prevent the realization of these interests.
illustrate
To
qisas
(legal retaliation)
nafs,
and hadd
the
in
order
and
to
hajiyyat to
expand
remove
and diyah
(blood money)
for
(punishment for drinking intoxicants)
protection of The
jinayat, he gives example of
the
for
-aql.11 are
so
called because they are needed
(tawassuf) the strictness
of
purpose
literal
of the maqasid
sense
the
application of which leads to impediments and hardships and
eventually to the disruption of the maqasid
(objectives). Thus if the hajiyyat consideration whole
11
See
will
are
not taken into
along with the daruriyyat the people on the
face
al-Shatibi,
hardship. The disruption of hajiyyat is,
op.
cit., vol.
2,
124
pp.
8-10
however,
not
the
with
case
daruriyyat.
_a
hardship in
for
decisions
weak
of
practices
disliked noble are
the
and
insufficient
evidence
interest.12
to adopt what conforms
means
in
(cadat) and to avoid those
to the best
manners
which
are
by wiser people. This type of maslahah covers
habits
(ethics, morality).
follows:
as
cause
(irrigation) and in jinayat,
affecting public
Tahslniyyat
in cadat,
may
on
in mucamalat, permission for qirad
hunting;
(money lending), musaqat allowances
sawm
-a
journey which otherwise
fasting etc.;
prayers, of
lawfulness
or
is
as
Examples of hajiyyat are as
concessions in salat and
sickness
of
account
the
cibadat,
in
follows:
disruptive of the whole of masalih,
Examples of this type
cibadat cleanliness
in
(taharah)
or
decency in covering the private parts of the body (sitr
al-cawrah) in
in mucamalat,
etc.;
(najs) and
prayer;
articles
depriving
a
or
freeman
in
a
12
12
structure
See
pp.
the sale of surplus food and water,
for jinayat,
the prohibition of killing
etc.13
regards the above division of maqasid as
consisting of three grades,
al-Shatibi,
Ibid.,
prohibition of the sale of unclean
place of a slave,
Al-ShatibI
manners,
slave of the position of witness and
leadership, etc.; a
in cadat, etiquette, table
op.
cit.,
vol.
2,
11-12
125
pp.
10-11
connected to
one
His
another.
their
detailed
analysis reveals two aspects of
relationships with
First,
one another.
every
grade
separately requires annexion of certain elements which supplement and complement this grade.
requires additional
Every one of the three grades achieve
to
objectives. cannot
realized without
be
(parallel evaluation). two
clarifications:
elements
does
objectives; elements
-
reasons
however,
this
for
these additional
the consideration of the additional
the
a
negation of the original
if the consideration of of
annulment
stipulation
element a
consideration of realization
Al-Shatibi,
of
op.
is
like
the
even
the
its
a
are,
an
original The
first, because the
quality (sifah).
If the
quality results in the negation of the
(mawsuf),
Second,
calls for
negation of the essential
a
bring about
in
qualified object
14
to
that is to say,
consideration of
well.
lack of
tamathul
its consideration will not be valid.
additional
as
amount
not
results
objective,
This position, a
its
(legal retaliation)
condition of
a
first,
second,
objectives element
not
must
realization of
fuller
the
instance, qisas
For
every
others.14
grade is related to the
elements
Second,
if
the qualification is negated it
additional
interests
cit.,
is supposed that the
p.
at
12
126
element the
cost
results of
the
in
the
original
objective,
it is stressed that the realization of the
prefered.15
original objective be
save
is
of
is
illustrated
by the following
The eating of carrion is allowed in the Sharicah
example. to
situation
above
The
life.
utmost
The
reason
is
that
the
preservation of life
importance, and preservation of muruah
(manliness, honour)
is only additional
protection of life.
Impure things are prohibited in order
to
preserve
(takmili)
honour and to encourage morality.
preservation of the additional element, i.e to honour
by avoiding eating impure things,
negation of the original interest, of
life,
the consideration of
to the
But
if the
preserve
leads to the
i.e the preservation
the additional element
is
forsaken.
Another
is
a
example may be seen in the act of sale which
necessary
maslahah while the prohibition of risk and
ignorance in sale transactions is additional. complete negation of risk is stipulated, be
the result will
complete negation of the act of sale.
The
relationship of the above three grades of
maqasid with additional The
is
If the
one
masalih
tahsiniyyat
—
another to
are
the
is the
op.
cit.,
as
that of the
original objective of the law.
thus additional to the hajiyyat which
—
Al-Shatibi,
same
p.
14
127
are
additional
fundamentals
the
to
of
daruriyyat. The daruriyyat
maqasid.
In view of
the
are
the above
explanation, al-Shatibi deduces the following five rules in
this
relationship: (ii)
maqasid;
necessitates
(i)
the daruri
the ikhtilal the
ikhtilal
(disruption) of glarur I of
other
maqasid absolutely;
the ikhtilal of other masalih,
(iii)
necessitate certain
an
sense,
is the basis of all
does not
however,
ikhtilal
of,
the daruri
however,
the
ikhtilal of tahsini
(iv)
itself;
in of
or
hajl absolutely necessitates the ikhtilal of daruri; (v)
the preservation
necessary
(muhafazah)
for the sake of
These
rules
(lex talionis).
may
a
and
of hajI and tahsini is
daruri.16
be illustrated by the rule of qisas
Qisas is daruri,
(consideration of equality)
and tamathul
in qisas is tahsini and
takmlll.
illustrate
To
exists
(tamathul)
To
the
^
is
(qisas)
rule,
tamathul
(daruri).
is the basis of
a
(tahsini)
Thus
maslahah
a
maslahah tahslniyyah
.
illustrate no
ikhtilal
See
first
only because of qisas
daruriyyah
there
the
the
second
consideration of
al-Shatibi,
the
op.
daruri
of
tamathul.
means
cit., vol.
if there
rule,
2,
128
the
pp.
In
same
16-17
is
other
for
no
qisas,
words,
the
other
grades of maqasid necessarily.
illustrate
To
does
tamathul
third
rule,
the
ikhtilal of
require ikhtilal of qisas.
not
fourth
The
the
and
fifth
rules
can
be
appreciated if
one
the sense in which darur1 is affected by the
grasps
ikhtilal effect
of
of
other
other
maqasid.
maqasid
on
following four arguments:
Al-Shatibi explains the necessary
(1)
maqasid with the
The relationship of other
maqasid to necessary maqasid is like that of protective zones
hima).
amounts
The interruption of one protective zone
the
to
interruption of the next
eventually to the disruption of the which
at
the
centre
relationship
may
also be understood
and
are
the
whole;
masalift make
obviously (3)
other
one
means
these
in
daruriyyat.
(4)
whole.
As
See
relation
as
(2)
This
that of the part
The disruption of the parts
to
the
can
be understood
universal,
as
a
prerequisite
as
i.e.
The hajiyyat and tahsiniyyat
serve
(muqaddimah),
the or
(muqarin).17
mentioned above,
-
zones;
the same as the disruption of the whole.
magalifr daruriyyah interrelated
maqasid
necessary
masalih together with the daruri
The hajiyyat and tahsiniyyat
individuals
17
of
and
zone
—
al-Shatibi,
op.
cit.,
the tnasalify are also divided
pp.
16-24
129
as
into
those
belonging to this world and those concerning
the
hereafter.
5.3
THE
TWO
APPROACHES
OF
OBSERVING
THE
MASALIH
OF
THIS
WORLD
There
world
be
can
angles from which the masalih
two
are
observed.
The
first
of this
angle is to observe them
as
they actually exist, and the second is to observe them
on
the
basis
of
clear
a
Examining masalih are
found
not
as
with discomfort may
precede,
the mafasid
but
pure
comfort world a
are and
reason
(opposite of masalih) found to be mixed with
small, which
a
Similar are
are
not
certain amount of
enjoyment. The entire phenomenon in this
opposites and that it is impossible to
(istikhlas)
that
the
only one aspect.
masalih and mafasid
in
It is for this this world
are
only on this basis of the pre-dominant aspect;
considered, considered
customarily, a
mafsadah.
a In
maslahah; otherwise it is these
matters
_
al-Shatibi,
op.
cit.,
vol.2,
130
p.
if
the matter at issue is
determining factor is the prevalent
See
or
which also
aspect of maslahah dominates,
TO
they are mixed
Rather,
follow the masalih.
or
they
points to the fact that this world is created from
abstract
the
Sharlcah.
the
hardship, however big
accompany
combination of
known
of
they exist in this world,
as
masalih.
pure and
statement
26
thus,
aspect.18
the
It
noticed here
be
must
this
that
principle is
applicable only to acts relating to cadah, and only to determination of maslahah
the
or
mafsadah
in
this
world
through knowing them as they exist. Acts which are not cadat
second
The
this
is
world
connection The
basic
mafasid pure. are
affected
not
are
approach to considering the masalih of observe
to
with
clear
in
rule
them
the
consideration
the
reality of the
maslahah m
■
or
is
It
clear
the
the
not
the
the
dominated
are
not
can
they,
Sharicah.20
or
are
they
As explained
is determined
(al-jihah al-ghalibah) of the
predominant aspect which is the object
aspect,
of
Sharicah.
the
The
dominated
whether maslahah or mafsadah is
objective of the Lawgiver. Why is it then that
the
elements,
though they may be maslahah,
when they are not the objectives of Sharicah,
contradiction with
—
Al-Shatibi, p.
even
objectives of Sharicah? On other hand, how
be masalih?
Ibid.,
(khitab).
(mashubah),
_____________
statement
(al-maghlubah)
Sharicah
mafsadah in this world
by the predominant aspect matter.
their
by the Lawgiver
in
so
to
approach is that the masalih
supposed to be mixed
'
19
of
are
not
still
reference
If they
above,
of
in
statement
this
into
taken
as
principle.19
by this
op.
Al-Shatibi the
cit.,
solves
this
apparent
following explanation.
vol.
2,
p.
27
131
26
He
which
is
considered
such
as
according to the acquired
(al-ictiyad al-kasbi) alone, i.e. without adding
habitude the
that al-maslahah al-maghlubah is that
argues
Lawgiver's requirements of maslahah. Customarily,
such
is
maslahah
a
*
*
not
into
taken
consideration.
This
the
part of maslahah which is also not the objective of
the
Lawgiver insofar
rules
(ahkam)
as
as
the sharciyyah (legality)
whole is considered.
a
Further,
of if the
dominated
aspect were also taken into account by the
Lawgiver,
no
act could have been the subject of command
alone
or
of
prohibition alone.
case.
If
it
is
Obviously such is not the
supposed that the dominated aspect in
mixed maslahah
is
the
becomes
and
the
yutaq
the
same
then one and the same
object of command and prohibition at which would have been
time,
a
object of prohibition and the
dominating aspect that of command, act
is
(impossible obligation)
as
a
taklif
ma
one
la
well as absurd
situation.21
The
above
existence
or
(Lawgiver's) elaborates
position the
2^"
occurrence
matter
appear
Muctazilah
See
of
mafsadah
despite the SharicI's
intention to the contrary. Al-Shatibi
the
may
explanation, however, does not clarify the
al-Shatibi,
on
by saying that the above
to be that of the philosophers and of
the
op.
further
existence
cit., vol.
2,
132
and
p.
28
occurrence
of
evil.
According to the philosophers, God created which
the
good is mixed with evil. which is
however,
world
the
create
the purpose of for
evil,
even
world in
a
It is the good,
creation. He did not though evil may occur
along with the good. Muctazilah believed that evils
The to
their
occur;
are
intended
not
is against God's will
occurrence
(iradah).
Al-ShatibI between
basis God.
his
of
first
and
the
discusses
above
distinction
a
First,
al-khalqi al-takwini);
apparent similarity
positions. He
between
two
argues
intentions
intention of creation
is the
there
the
and second,
the
on
(qasd)
of
(al-qasd
the intention of
legislation (al-qasd al-tashrlcl). The position of the philosophers and the Muctazilah al-Shatibi's
mafsadah, is
the
latter.
a
the
man
case
is
held
of al-qasd al-tashrICI,
free
(mukhtar)
of
al-iradah
22
See
above
al-Shatibi,
cit.,
to be
as
al-takwiniyyah,
discussion
op,
so
legally
This position is not justified
imply imperfection in God's
The
the occurrence of
argues,
case
responsible for his acts. in
and
despite God's will and intention for maslahah,
justifiable in the
because
he
As
the former,
concern
p.
as
this would
powers.22
of maslahah
30
133
has
been
concerned
with
the
basis
the
where
where
cases
of
the
actual
the
determining
a
maslahah.
may
for
carrion
case
in
specific dire
of
need
the
prevention of crimes,
the
fact
that
the
are
killing
a
eating
murderer for
considered maslahah despite
themselves
acts
unlike the
and
so
instance,
For
reason.
be used as
There are cases
judgment of general actions is not
definitive
words,
practice
not
are
so.
In
other
in the above discussion where
cases
the
despite their consisting of certain aspects of
acts,
mafsadah, whole,
regarded
are
the acts
themselves,
in the above examples,
though mafsadah in
become maslahah because of certain external
considerations.
The
supposition in this
consideration
external
maslahah in themselves on the
as
consideration.
can
this
How
dominate
domination
the
is
case
is that the
internal
decided
needs
elaboration.
view of
In
positions;
two
such or
a
one
of
situation,
logically,
either both considerations that
manner
above
the
them
can
one
be
cannot
be
are
there are
equal in
prefered to the other,
prefered. The former position
probably does not exist in Sharicah because it necessitates
that
Sharlcah should
intend
prohibition and
permission simultaneously.
Furthermore, is the
still other
if
one
consideration is preferable,
it
possible that the Lawgiver might have intended side.
Both
sides
will
134
always remain to be
weighed by after
a
mu jtahid.
weighing both considerations,
intention of
the
mujtahid,
a
consider to be the
we
Lawgiver, not what is intended by Him in
mind).23
reality (in His of
We are obliged only to do what,
In this way,
after the decision
the possibility of the other consideration
being intended has to be disregarded insofar fulfilling is,
obligation is concerned. The possibility
an
however,
not disregarded
(examination,
A
group
investigation)
insofar
well,
as
of scholars who believed the above case
maintained the principle of
(the consideration of opposition).
this principle,
elsewhere,
nazar
is concerned.
possibility to be applicable in the as
as
of obligations
muracat al-khilaf
As mentioned
to al-Shatibi, meant an
impossible and hence void obligation. Al-Shatibi that
the
sums
up
al-jihah al-maghlubah
objective of
governs
a
24
p.
or
~
—
al-Shatibi,
Ibid.,
is not
This principle
all problems which are subject to ijtihad
always correct
See
(the dominated aspect),
legal obligation.
irrespective of whether
23
the above discussion by saying
op.
one
believes
vol.
2,
not.24
cit.,
32
135
p.
31
a
mujtahid to be
5.4
HOW
THE
MASALIH
So
far
the
also
this
of
masah
THE
discussion
world.
as
well
as
of
God.
basic
rule
oneness
The
been
has
masalih
The
■
mixed
sometimes meted out
hell)
HEREAFTER
*
of
ARE
DETERMINED
concerned with the
hereafter
the are
(such as the attainment of the blessings of
pure
paradise)
the
OF
in
(such as the punishment of
masalih and mafasid
such
they are all determined according to Sharicah, the
reason
due
to
cannot
grasp
being beyond its
Sometimes
considering the instance,
pure
is
that
because
matters relating to the hereafter
and horizon.
scope
confusion may
a
in
to those who believe
even
masalih
arise because of mafasid
or
as
mixed.
the blessings bestowed upon the prophets
For
in
paradise differ from those given to others. Those in lower
ranks
absence
of
may the
be regarded
individual
is
to
members.
their
this confusion arises because
maintained
not
The
special characteristics, relation
being punished by the
blessings given to those in higher ranks.
According to al-Shatibi, distinction
as
between
individual
etc.,
species;
a
species and its
members
may
differ in
but they do not differ in
they are members of the same
species. This membership is the fact that determines their
25
See
wasf
(quality).25
al-Shatibi,
op.
cit.,
vol.
2,
136
a
p.
36
following rules
al-Shatibi deduces the
*
•
characteristics of maslahah;
as
in
and
the
hereafter,
but
in
disrupt the system of sharc;
(ii)
masalih
(iii)
above
be
to
to
takalif ahwal
The maslahah
abadi
be
and is
that
(eternal,
and camm (general)
(universal)
and
absolute;
considerations
two
instituted
of
(conditions,
above to
be
based
on
ahwa'
al-nufus
both
and
equating
a
(personal
of
above
relative
that they do not
the Sharic intends the the reason for the
Sharicah has been
continuous),
kulli
in relation to all kinds
(subject of command)
mutlaq
thus
(absolute) means
require
and kulli
that masalih should
subjective. Relativity is usually maslahah with one of the following:
(selfish inclinations), manafic
aghrad
(selfish
(fulfilment of desires) and
interests). According to al-Shatibi all
considerations and
render
the
concept of ma si ah ah.
subjective, which is not the
consideration of
the
Lawgiver with regard to maslahah,
though it may be so in customary law.
He
26
The
states).26
advantages), nayl al-shahawat
the
way
characteristics
three
relative
be
a
(obligations), mukallafin
(universal). The absoluteness not
(i)
of legislation is to establish masalih in this
purpose world
discussions,
above
the
From
argues
Al-Shatibi,
op.
on
the following grounds:
cit.,
p.
37
137
First,
the
objective of Sharicah is to bring the mukallafin out of dictates
the of
of
This
God.
their
desires
so
to
as
make
them
servants
objective negates the consideration of
personal liking as an element in the consideration of maslahah.
the masalih cannot
Second,
manafic because in cadah mixed with that
benefit
consideration
life
of
cadah
In
is
masalih
some
constitutes
maslahah.
well
as
in
as
as
mere
sharc they are
disadvantages. The point of emphasis here is
selfish
In
be considered
not
in
essential
in
the
cadah
is
it
nor
sharc..
in
higher goal like the subsistence of
the
basic
consideration
sharc the consideration must
in
determining
still
be
higher, and that is the attainment of the blessings of paradise.
Third,
the consideration of
the
fulfilment of
personal desires also renders the concept of maslahah
highly relative. The consideration of personal desire varies
time.
from It
is
state so
to
state,
relative
person
that
it
to person,
cannot
be
a
and time to
criterion
for
determining maslahah.
Fourth, not
a
consideration of
individual
interests
only to a divergence but, more significantly,
conflict
with
others
and
to
interests.
138
the
leads
also to
deprivation of others'
relativity and subjectivity
Consequently, excluded
sharcI
the
therefore,
must, is
from
are
consideration of maslahah;
be absolute.
it
sharc this absoluteness
In
provided by the stipulation that maslahah must aim at
the
subsistence
not
to
5.5
MASLAHAH
life
harm
•
•
The
of
life
in
SHOULD
the
in
this
a
way
as
world.
next
UNIVERSAL
BE
characteristic
second
in such
world
of
maslahah
is
its
universality. This universality is not affected by the takhalluf
(falling short)
instance,
the penalties are
universal
rule
that
of its particulars.
imposed
on
For
the basis of the
they generally restrain people from
committing crimes. Yet,
there are people who,
despite
being punished, do not abstain from committing a crime. such exceptions do not affect
Nevertheless, of
the
it
is
the
In the
Sharicah
(the major dominant)
which is
general rule about the al-ghalib al-akthar1
penalty.27
(al-camm al-qatcI) in the
general-definitive element
consideration
of
maslahah.
the validity
This
is
the
characteristic
(al-kulliyyat
(sha'n) of inductive universals
al-istiqraiyyah). An illustration of this universal be
found
in
universals
the
of
a
universal
See
—
—
al-Shatibi,
of
a
language.
The
language are closer to those of the
Sharicah, because both
27
rules
op.
are
cit.,
wadcI
vol. 2,
139
p.
(instituted,
52
may
conventional) universals if
even
(in Arabic grammar,
some
of
their
reference
al-Shatibl
remain valid
for instance)
particulars do not conform to the
particulars.28
majority of In
caqli (speculative). The inductive
not
into
takes
criticism of
the
to
this
characteristics
account
of
consideration
concept by other
maslahah, of
the
jurists. Among them he
specifically refers to Fakhr al-Dln al-Razi, Shihab and Ibn cAbd al-Salam.
al-Dln al-Qurafi their
criticisms.
As
criticisms
these
and
answers
quite relevant to the discussion of maslahah, summary
answered
He has
a
are
brief
of this debate is given below.
Analysing the position of those who favour maslahah, al-Razi
refers
manafic
is
manc
idhn
to
their
argument
that the basic rule in
lawfulness) and in madarr is
(permission,
(abstention).29 Al-Shatibl
rejects this analysis
representation of the maslahah-view.
as
It
an
unfaithful
is not possible
to
speak about manafic and madarr only in absolute terms
as
they do not exist
absolutes in reality;
as
they are largely relative. refer into
28 29
See
to
the
clear
consideration
al-Shatibi,
Ibid.,
p.
op.
Secondly,
statements
the
of
the
differences
cit.,
pp.
52-53
40
140
actually
since the masalih Sharlcah which take
among
persons,
times
and
it
states,
Third,
since
is
inadequate to talk in absolute terms.
manafic
no
mixed with madarr,
will
also
have
Shihab al-Razi's
accept that idhn and nahy
that
al-Din al-Qarafl,
Al-mahsul,
had
realized
and
because
terms,
hence
mubah
so
first,
defined
maslahah
no
(pain) and mafasid
of
the principle
legal obligations.
because maslahah cannot
in
can
simple and absolute
be gained without alam
(evils). Thus to maintain that
(permissible thing) must be based
amounts to
basis
on
argued that maslahah cannot be the basis of ibahah
(permission). This is be
which is absurd.
-
doubts about
the
we
(prohibition)
the commentator
some
constituted
maslahah
not
are
accept al-Razi's principle,
we
apply to one and the same thing
can
He
to
if
be found that
to
are
to
on maslahah
complete negation of mubah.
a
Second,
in order
that maslahah is the basis of obligation,
argue
maslahah
must
reference
be
defined
certain
to
of preference of
another
is
never
in absolute
terms
in
not
specific consideration to
one
ending and because it does not provide
universally accepted basis of definition. position cannot be supported
maglafoah is
and
specific factors, because this
process
this
every
that whose violator
on
Furthermore,
the grounds that
is punished by God.
This
*
definition on
the
manner
the
is
not
acceptable because it is based either
assumption that God punishes only evil and this of
argument
assumption that
is dawr every
(arguing in
a
circle),
obligation from God is
141
or
a
on
a
maslahah
simply because it is
Al-Qurafi adds to
maintain
as
well.
for
that
ashabuna
an
obligation. difficult
the maslahah view
is
(our
the Ashcaris)
colleagues
-
They cannot say that God takes maslahah into
consideration
against mafsadah,
over
because there
are
mubahat in which this consideration is lacking. The
many
only proof they have is an argument on the basis of the induction claim of
the
know
to
fiqh♦
that
of
obligations, and this also is based on
the
They are thus necessarily led to the position actions,
God's
entirely dependent Muctazilah
To
were
discussion of that
method
led
also
the a
consideration
to
practice
as
survey
basis
the
well.
the
same
al-Shatibl
conclusion.30
refers to his own
relativity of maslahah.
is
what
Second,
he
of the rules of Sharicah by the that Sharlcah has taken into
regarded
He argues
method
are
His will and nothing else. The
on
induction proves
of
of
commands and considerations
al-Qarafi,
answer
answers
rational explanation)
(secrets,
asrar
a
of
maslahah in customary
as
that such
induction
a
survey
on
the
provides the dawabit
(determining factors) of maslahah. The examination of the events
by
way
of induction where al-takallf al-sharciyyah
(legal obligations) that
Tfl
takalif
these
have been realized in practice shows and mubahat
did
_
See
al-Shatibi,
op.
cit.,
vol.
2,
142
p.
42
not
harm
human
interests
(or masalih)
established
them.
cAbd al-Salam had distinguished between masalih
Ibn
al-akhirah
al-dar
but have conformed to them and
(the hereafter)
and al-masalih
al-dunyawiyyah
(benefits belonging to this world)
basis the
that
the
former
latter
are
known
can
be
known
by needs,
wants
know
to
experience, practice and says
he may simply
maslahah,
a
the
only by sharc while
by consideration of probability. He even one
on
that when
find it
rationally,
supposing that the Sharic has given
indication.
Judgment is reached rationally in this manner
except masalih
in the or
case
mafasid
Al-Shatibi, to
him
not
by
of tacabbudat are
(acts of worship)
and hadha al-qail
masalih
in
the
masalih
of
this
hereafter world.
are
distinction between
are
not
independent of the
Hence
not
only al-masalih as
long as they
known by Sharlcah alone. the
(some
(this speaker). To al-Shatibi
al-ukhrawiyyah but also al-dunyawiyyah,
obligations,
refers
but by terms such as bacd al-nas
person)
are
where
given.
not
quoting Ibn cAbd al-Salam here,
name
no
two
masalih
were
If the
absolute,
the
sharc would have been concerned only with al-masalih
al-ukhrawiyyah. establishment Al-Shatibi statement
In
of
the
refutes that
fact,
the
to realize
the ukhrawiyyah,
the
dunyawiyyah is inevitable.
the
implication in Ibn cAbd al-Salam's
dunyawiyyah
143
are
rational and hence the
sharc is additional.31
consideration of
Al-masalih
illustrate
al-mursalah
the
type of new
things where the intention and the act both conform to
32.
of Sharicah.
the
purpose
the
levying of the
of
Sharlcah and the
The
conformity of the act with the intention
in
this
case
understanding of Sharlcah, and further, does
5.6
not
conflict
AL-MASALIH In
disassociates Al-ShatibI
32 qo
See
this
the
them
the
right
the intention
objectives of Sharicah. ARE
IDENTICAL
NOT
WITH
BIDCAH
conformity of al-masalih
maqasid al-SharIcah that
from
—
al-mursalah
—
al-Shatibi,
Ibid.,
the
show
purpose
bidcah
(innovation in religion).
disagreed with the jurists who identified
al-maslahah
31
is
with
al-mursalah
with
AL-MURSALAH
it
fact
this type is
taxes in addition to those prescribed
new
in
texts.
An example of
pp. —
Al-Shatibi,
_
as
_
Al-muwafagat,
bidcah33
vol.
2,
To
p.
him
the
two
were
48
341-42 here,
refers
al-masalih al-mursalah
—
to
Imam Malik
is
whose
reliance
on
strongly criticised by other jurists. Al-Shatibi defends Imam Malik in the following manner: "Malik, adhering to the principle of not applying rational explanations in matters of cibadat revolves entirely around his [approach to] stop at the limit prescribed by Sharicah, [and thus] disregarding what munasib requires... [This is] in contradiction to cadat which are governed according to suitable reason (al-macna al-munasib) which is evident to human reason. He employed laxity (istirsal) with self-confidence and with deep insight in reasoning by maslahah... [He employed this laxity so frequently] that the scholars often condemn him because of this laxity. They imagined that Malik threw off the yoke of Sharicah and opened the gate of law-making. How far it is [from truth], see Al-ictisam, p. 113
144
completely opposed to each he
other.34
To refute such views
argued that first of all the jurists
upon
are
not agreed
exact definition of al-masalih al-mursalah.
an
al-Ghazali
expressed two different views
on
this
Even
point.35
al-Shatibi explains, al-munasib al-mursal
Secondly,
(synonymous with al-maslahah al-mursalah in al-Ghazali's
terminology) which is neither specifically supported by
bidcah. On
the
legal text nor is it rejected,
the
contrary it is supported by the existence of the
which is
genus
al-mursalah,
common
and,
evidence
but
on
Al-Shatibi ten
this genus
is considered
Its validity is not based on specific
its
consideration
illustrates
as
a
whole.36
al-masalih al-mursalah with
Among them are the following events fron
examples.
Islamic
a
between al-Sharicah and al-maslahah
futhermore,
by Sharlcah.
valid
is not
legal history:
the collection of the Qur'an;
determining the penalty for using intoxicants; allegiance to
a
less
of
a
better
common
in
qualified
person
qualified
all
the
ten
for an office in the presence
one.37
He finds three elements
examples.
suitability with the objectives
34
Al-Shatibi, »
35 3^ 37
See
Al-ictisam,
al-Shatibi,
Ibid.,
p.
First is the element of (maqasid) of the
p.115
Al-muwafaqat,
vol.
2,
cit.,
pp.
99-110
p.
98
Al-Shatibi,
op.
vol.
2,
145
96
Sharicah.38 the
Al-masalih al-mursalah do not
fundamentals
Second,
do
because
latter
the
are
not
gives
more
removal of
end of
limited
Al-masalih
(acts of worship)
al-mursalah refer to (human)
impediments which an
prove
are
indispensable
harmful to means
to the
law.40
Al-Shatibi, cannot
Sharlcah.
than ten examples to
following principles: protection of
religion; and protection of
be
the
to
above
thus,
shows
the acceptable masalih
that
equated with bidcah and that they
maintained;
to
of
with
rationally intelligible in
point.39 Thirdly, al-masalih
necessities;
the
evidences
belong to tacabbudat
not
Al-ShatibI
detail.
the
the
they are rationally intelligible.
al-mursalah
this
with
or
conflict
category of daruri,
as
some
are
not
jurists have
they cover other categories as well.
In fact,
explanation of al-maslahah al-mursalah conforms
al-Shatibi's
fundamental
concept of maslahah which is of
significance to the doctrine of maqasid
al-Sharicah.
38
39
Al-Shatibi, Ibid.,
op.
cit.,
instance,
p.
Ill
al-Shatibi explains,
Lawgiver's prescriptions rationally uniform. In case of urine and stool one is obliged only to wash certain parts of one's body, [ i.e to make ablution], but in case of nocturnal discharge, washing of the whole body is obligatory about
40
For
cleanliness
Ibid.,
vol.
3,
from
pp.
human
excretions
113-115
146
are
not
Chapter 6 NAJM AL-DIN
AL-TUFI
MASLAHAH •
AL-TUFI1S
6.1
•
•
TREATISE ON MASLAHAH •
Najm al-Din al-Tufi is in
716
his
His
A.H.
AND
'
treatise
•
Hanbali scholar who died
a
maslahah
on
is
with
connected
commentary on the thirty second of a group of forty
sayings of the Prophet compiled by Imam al-Nawawi which "Do
states:
another". his
not
Since
inflict the
injury
whole
al-Tufi's rest
of
opinion
the
was
injury by
embedded within
treatise
The
its
ninth
THE
OF
text
al-Tufi"
published in the al-Manar journal
THE
the
tenth
part which was
issued in
He
of
said
the
in
"LA DARAR WALA DIRAR"
HADITH
began his views
maslahah by justifying
on
hadith which
that
treatise
al-tashric f_i ma la nass and
short commentary on the margin.
of
volume
above mentioned
treatise.
The
need to separate
A Damascus scholar called Jamal
a
also
was
MEANING
Al-Tufi the
a
1906.1
October,
6.2
there was
did that work and published it in a
special treatise with
144;
analysis
one
the concept of maslahah from the
on
commentary.
al-Din al-Qasimi
1
repay
commentary on the group of forty sayings of the
Prophet mentioned above,
in
nor
"Al-maslahah
by Mustafa Zayd,
the
of
he made
hadith
al-Tufi
in
can
the
question is
also
be
of
core
found
in
a
his
sound
"Masadir
fih" by cAbd al-Wahhab Khallaf, pp. 106 fi al-tashric al-Islami wa Nairn al-Din at
the appendix,
147
pp.
14
-
48
-
Then
one.
chains
weak,
he
of
sound
say
taken together he
So
and
to
on
that this hadith has many
authority (asanid) which, although individually
when
hadith.
went
concluded
give strong support to the
by saying that the hadith is
accordingly necessitates practice. As for the
meaning of the hadith, al-Tufi held it to prohibition of in
any
circumstances whatsoever. This
mischief
to
on
others
means
person
that
side and stoping the making of
one on
the
causing injury to another
someone
preventing evil
mean
the
other
side.
In
explaining the
meaning of that hadith, al-Tufi asserts that the Sharicah forbids
any
harm to be caused to any body except as a
result
of
argues
that the negation of injury in the case of the
Lawgiver
legal measures which require special proofs.
(God)
He
in His divine decree is not inevitable
simply because God judges things with the utmost justice and
impartiality in His Omnipotence. He further
there
are
some
types of
permissible, such
as
injury which
hudud
are
says
that
lawful and
(revealed punishments) and
punishments for various offences. On the question of the prohibition of injury according to the Sharicah, al-Tufi puts forward some ordinances from the Qur'an and Sunnah such
as:
"God
wants
hardship
2
Qur'an,
simplicity for
over
you";2;
2:185
148
you
and does not want
"God wants The
easiness
you"3
for
Prophet is reported to have said:
"Religion (Islam)
simplicity";4
is
and "I
been
have
Al-Tufi
has
introduction ordained benefit
mentioned
life;
these
in order
for
simple
a
of
way
life"5
(texts)
nusus
as
an
that the religion of Islam has been
prove
mankind
to
in
to
with
sent
to
attain
had the causing of
easement
and
injury and the
making of mischief not been prohibited by the Sharicah, there
would
ordinances for
the
have
been
a
Islamic
of
divine
lack
of
balance
in
some
of
the
legislation, which is impossible
revelation.
Thus
the
prohibition of
injuries by the law is the sole meaning of the hadith "la darar
wala
kinds
all
dirar", of
legalised by 6.3 OF
THE
4
Qur'an,
^
a
OPINION
special OF
proof.6
AL-TUFI
maintains
CONCERNING
THE
CONSIDERATION
that
the
consideration
of
benefit
4:38
Reported by al-Bukhari,
al-Nasai 5
injury except for that which has been
BENEFIT
Al-TufI
3
which implies a general prohibition of
and
Muslim, Abu Dawud,
Ahmad ibn Hanbal,
al-Tirmidhi
Reported by Ahmad ibn Hanbal
Zayd, Al-maslahah fi al-tashric al-Islami wa Nairn p.116; and cAbd al-Wahhab Khallaf, Masadir al-tashric al-IslamT fl ma la nass fih, p. 110 See
Mustafa
al-Din al-Tufi,
149
and
the
prohibition of injury is
the Sharlcah which goes beyond and above of
aspect of
ordinances
the
even
of
the
Qur'an,
supports his opinion by saying, of
some
paramount and unique
a
the
of
texts
Sunnah and
"Suppose
we
Sharlcah contain
the
ijmac. He
thought that
some
injury
(i.e the harm is caused by some of its dictates as we shall
this the
this
hadith
hadith,
be
would
if
expel that injury by the use of
exercising both this hadith and
mean
did not expel
we
in this
in
mean
it
case
useless.
No
is
a
the injury by using neglect of one of the
the hadith
doubt,
in question that
the combination of
solving problems is better than neglecting
them.7
of
we
it would then
made
evidences some
it
but
text;
evidences, will
if
later),
see
this
In
connection,
the
he enumerates
evidences
of
Sharicah and restricts them by means of
induction
to
nineteen
Sunnah,
(3)
viz.,
(1)
ijmac of the Islamic Ummah,
people of Medinah,
(5)
qiyas,
Companion of the Prophet,
(7)
istishab
a
(continuation of
ignorance to Islam),
exemption),
7
See
cit.,
(12)
istidlal
Mustafa p.
(9)
a
cit.,
the
ijmac of the
saying of the (8)
practice from the time of
sadd al-dharaic
op.
(4)
(2)
al-masalih al-Mursalah,
al-bara'
(deduction),
Zayd,
(6)
al-asliyyah (original
al-cAwaid (customs),
(10)
(induction), (13)
the Qur'an,
(14)
p.117;
109
150
(11)
al-istiqra'
(preventive measures),
istihsan
(equity),
cAbd al-Wahhab Khallaf,
(15)
op.
ikhtiyar al-aysar
(taking the simple),
(immunity from error),
Shicas);
the
After these
their methodology and their
books
of
usul
rules in
al-fiqh, al-Tufl
explain that the hadith before of
(for
refering the knowledge of the demarcations of
the
to
the house of the Prophet
-
ijmac of the four caliphs.
(19)
evidences,
detail
ijmaG of the people of Kufah,
(17)
ijmac of the citrah
(18)
al-cismah
(16)
us
goes
implies the
on
to
assurance
obtaining benefit and the denial of injury. This is
simply because the denial of injury necessitates the confirmation
of
benefit
contrary to one another. textual are
the
ordinances
to
the
fact
that
they are
After this he asserts that the
(whether
from the Qur'an
or
Sunnah)
strongest evidences out of those nineteen;
however, it.
due
they might agree with maslahah
Nonetheless,
maslahah
has
evidence)
or
to
it be
or
disagree with
is not necessary for al-Tufi in agreement
with
ijmac but it might
go
nass
that
(textual
against them.
After
making this assertion, al-Tufi does not hesitate to require the pre-eminence of al-masalih al-mursalah nass
and
ijmac if it does not
an
describes
this
pre-eminence
(takhgis)
of
nass
over
them,
over
the
a
and
an
as
agree
over
with them. He
the specification
ijmac and not
as
a
domination
corresponding to the pre-eminence of Sunnah
Qur'an
as
a
means
of explanation and
clarification.
151
a
al-Tufi
Then
problem if
a
nass
goes
and
to explain that there is no an
ijmac
are
in agreement with a
maglahah so that no injury at all is found in them,
which must have been exempted from
except in the hudud, hadith
the
be
to
seems
"la
darar
dirar".
wala
implicit in the
nass
However,
if
some
injury
and ijmac due to
particular evidence,
then it is obligatory to follow that
evidence,
is necessary to restrict nass and
or
else
it
ijmac by the hadith in question. 6.4
THE
CONSIDERATION
Here
that
not
evidence
•
•
IJMAC
objection which might be made
an
whereas
the
consideration of
a
maslahah
simply because its foundation is uncertain and
so,
therefore
it
cannot
al-Tufi
argues
because
it
based
raises
MASLAHAH AND
ijmac, according to most Muslim scholars, is
clear-cut
is
al-Tufi
OF
is
have
pre-eminence
over
ijmac. But
that maslahah is stronger than ijmac based
on
a
sound
hadith while
ijmac is
only on the opinion of the mujtahids. Thus,
maglafrah is the strongest proof of Sharicah simply because
one
of
another
becomes
the a
strongest arguments supported by
strong argument.
Then he goes on
talking about maslahah and ijmac in detail to support his claim
taking into account two aspects:
(i)
the literal
meaning of maslahah which signifies that law should be applied
as
is.
and
(ii)
law
should
it ought to be and not according to what it
be
its descriptive meaning which implies that beneficial.
He
does
152
this
by putting forward
evidences
some
raise
to
the
how
important it is in the
the
same
weakens
6.5
time
IS
Al-TufI
utilized in
is
is
of
for
are
of
of
the
their
a
of
THE
LAWGIVER
as
a
pen
being fully
and this is accepted
worship
benefit
of
...
-
like trade
it follows also that maslahah in
-
a
cause
of
the
leading to the Lawgiver whether in
mankind
Al-Tufi
very
While the acts
customary law.
or
the right of the Lawgiver,
affairs
whole;
OF
writing;
intention
Lawgiver has cared as
ijmac and
of
resulting in benefit
as
the
are
in
Sharicah is
the
acts
worship
INTENTION
used
usage
to
fulfilment of
and at
that if the literal meaning of
resulting in profit
terms
evidences
the
objective, such it
ordinary
relation
of the Lawgiver,
eyes
show
to
thing which is fully utilized according to
a
if
THE
argues
intended
the
maslahah
them.
MASLAHAH
maslahah
he mentions
of
status
and
makes
for
it
the practices
the
clear
organization that
the
much for maslahah in the Sharicah
and he quotes
the following verses:
"0 mankind! There hath come to you an admonition from your Lord and a healing for the (diseases) in your hearts, - and for those who believe, a
Guidance
and
is
that
Mercy. Say (0 Muhammad): "In the bounty of God, and in His Mercy, - in that let them rejoice": that is better than (the wealth) they hoard".8 It
8
clear
Qur'an,
a
the
thing which has
10:57,58
153
come
to human
beings from their Creator their
believe
in
considers
it
ordained
for
the
the as
guidance and
a
benefits
of
exhortation, mercy
a
healing of
for those who
should be something which
people at their fullest.
injunctions and rules in the Sharicah
Thus, are
accomplishment of those benefits.
al-Tufi
Then not
an
(i.e the Qur'an)
the
the
it
and
hearts
as
poses
possible to
hypothetical question:
a
presume
"Why is
that nass and ijmac contain
general consideration of the benefits of mankind so be
to
proof of their knowledge of the Sharlcah?
a
He
responds by saying that this is true with the acts of
worship, but with transactions and customary law
nass
and
ijmac must be in agreement with maslahah. He then recapitulates the differences between the acts of worship transactions
and
former
in
this
connection and
says
that the
belong to the will of God whose techniques
can
only be known from God Himself through either nass or
ijmac; whereas the latter, the consideration of benefit in
them
As
is
al-Tufi
and
clarifies
he,
at
the
asks,
those
those
"Are
this
same
surveys
the
time,
Lawgiver
on
investigates
the actions of God
the God's actions accounted
for
or
not? He
question by bringing forward the arguments
whose
whose
of
concern
the
things. First of all he
answers
of
prime intention of the Lawgiver.
in detail,
maslahah
four
the
response
answer
is
is affirmative
negative. Then he
154
as
well as of
says,
"The
actions
of
God
directed
are
towards
the
beneficence
and
perfection of His creatures and not to His benefit and perfection due to the fact that He is Self-sufficient". Secondly, he discusses the issue concerning the decision of
God
and
asks,
held it
on
the
consideration
"Is
it
matter
a
by the Sunnis
is
or
of
benefits
from Him
of favour
a
and taqbih exercise
mere
al-Tufi
by God is it
and
creatures
on
is
Him
as
on
tahsin
(detestation) which both have to do of
the
mind
a
-
speculative method
-
"The truth is that the consideration of
argues,
benefits
it
by the Muctazilahs? After establishing that
held
(approval) with
creatures
as
question of obligation
a
opinion of the Muctazilahs is based
the
His
for
matter of His favour to His
a
is
not
a
of
matter
compulsion
Him".
over
Thirdly, he talks about the benefits which the Lawgiver has
laid down and
in all
examines,
"Are they absolute benefits
aspects and cases or are they the best ones
in all
aspects and cases or are they the suited and the perfect ones
in
that
the
each
and
last
the
he puts forward the proofs which indicate
consideration
in
Al-Tufl maslahah
qigas
from
(i.e the suited and the
is the best and is likely to be the correct
Fourthly,
manifested
situation?" Al-Tufl establishes
type of benefits
perfect ones) one.
every
the
gives the
of
maslahah
Qur'an,
as
a
by the Lawgiver
Sunnah,
as
ijmac and qiyas.
.
.
proof of the consideration of
Qur'an
(legal retaliation)
verses
concerning the law of
and punishments for theft and
155
adultery for examples, and then he speaking there is
no
benefit
consist
of
another
place"9
in the Qur'an which does not
verse
benefits
or
"Generally
says,
as
have
we
When commenting on these
Qur'an he has mentioned that
explained in verses
the principles of
of the the
philosophy of Islamic jurisprudence have verified that ordinances
textual
the
(nusus)
have been ordained to
accomplish these principles. He went fundamentals
the
stand well
above
dialecticians,
6.6
MASLAHAH •
•
his
In
in
the
IN
Islamic
of all
that
has
been
THE
of
the
to
involved
be
sell
to
a
be
in
by the
consideration of maslahah
al-Tufi presents the hadlth on the
already been purchased by
considers
said
SUNNAH
prohibition of mudabarah (i.e to sell have
sufficient and
are
sophists and the philosophers.
observation
Sunnah,
religion
which
to maintain that
on
maslahah. the
He
else) which he
someone
considers maslahah
also
traditions:
buy goods which
or
that
a
townman
should
kinship is not
disrupted.10.
establishing the fact that there of
g
cases
It
the
Sunnah
where
so
are
many
individual
al-usuliyyah
Reported by al-Bukhari and Muslim
156
that
Then he goes further
_
as
_
of such types well
as
be he means his book, Al-irshadat al-ilahiyyah ila
al-mabahith 10
in
_
may
not
countryman and a woman should not be married
together with her aunt or her mother's sister, one's
to
community interests have been considered; the
is
Sunnah
simply because
explanation of the Qur'an,
an
the
so
explainer must collaborate with the explained.
6.7
his
no
forward
the
benefits
of
maslahah
to
as
much
the
BY
QIYAS
proof of the
by qiyas,
al-Tufi has put
argument that God is concerned with the His
of
as
account
less.
MASLAHAH
OF
into
maslahah no
more
discussion
consideration
this
takes
CONSIDERATION
THE In
in
Sunnah
Qur'an does
the
as
the
that
means
This
life
creatures
and
in
prior to this life,
life
the
to
come.
As
to
as
well as
the
beginning, God has created human beings from nothing in form
by which they could secure benefits in their lives,
while
living in this world. God has made their
easy
for them
the
means
of
the
earth
and
and
eventually God has led those who follow His guidance
and
do
good deeds to the
Him
so
as
to
win His
the
bliss
of
paradise in the hereafter. As long
has
considered
without
all
benefits
basis
of
these
in His
their
community
wealth,
is
that
by creating the heavens and
found
therein
success
and
between
them;
of being subservient to
pleasures and acquire His reward in
benefits
for
commandments
Sharlcah) which is
control
their
sustenance
His
as
creatures,
God
it goes
saying that it is not possible for Him to neglect
their
to
a
social so
as
an
and
legislation (the
overall action of guidance
system and to maintain order
in
to secure safety for their material
blood and prestige without which their
157
lives will
fall
a
that
God
all
of chaos and animosity.
prey has
considered
neglected them in
before
if
and
it
nass
so
that
restricted of
for the third time
as
he did twice
all
that it is important in this
ijmac by this maslahah
and
nass
or
to
It is quite a natural procedure to
...
evidences
of
Sharicah have to be
the
by maslahah due to the fact that the strongest
evidences
these
in
ijmac might disagree with maslahah;
and
clarify them by it al-Tufx
creatures
whatsoever...
case
He says
restrict
to
His
happens then it is maslahah which should be
given priority. case
any
supposes
that
of
it is improbable to think that God has
aspects and
Al-Tufi
benefits
the
follows therefore,
It
(nass and
ijmac) could not face such
a
challenge. Al-Tufi has defined maslahah by explaining how the
Lawgiver has cared for it, and therefore it should be
the
axis
of
all
the
al-Tufl
As
ijmac, he "ijarah"
evidences
observes
argues
that
of
Sharlcah.
consideration of maslahah
the
"salam"
(forward selling) and
(the renting transaction)
Sharlcah though opposed to analogy transactions
time); allowed of
to
take
nevertheless, on
people.
the
basis
then
says
are
permitted by the
(which requires
place hand in hand at the same the two mentioned transactions are of
the
consideration of
the
benefits
The case is also the same with the right of
pre-emption (shufcah)
by
and
many
other Islamic laws. He
that most of the chapters concerning
158
transactions of
masalih
Islamic
in
which
Muslim scholars, method
such
system,
except those who do not scholars
6.8
agreed
Then
one
OF
IJMAC
al-Tufl
AND
Arabic
goes
"jamac"
verb
al-Zahiriyyah school
on
-
BASIS
to discuss
which
ijmac in detail and
"ifcal" class form from means
resolution
When defined terminologically,
agreement. consensus
the
of the evidences of Sharlcah
ITS
that its wording is of
says
of
rely upon such
this fact.
on
ROOT
THE
proved by means
well as those who suspend judgement on the
as
question of ijmac being have
are
accepted by the majority of the
are
the
as
jurisprudence
of
the
an
or
ijmac
mujtahids of the Muslim Ummah
means on
a
particular legal rule. The evidence for it stems out of the
Qur'an,
the
proof of ijmac from the Qur'an has been based
three
Sunnah and qiyas;
verses.
following The
He
criticises
and al-Tufl remarks that
this
on
interpretation in the
manner.
first
verse
is:
"If
anyone contends with the Apostle even after guidance has been plainly conveyed to him, and follows a path other than that becoming to men of faith, We shall leave him in the path he has
chosen,
refuge" Al-Tufi
11
Qur'an,
and land him in Hell,
-
what an evil
.1;L
says
that it is clear
4:115
159
in this
verse
that God
threatens his
the
choice
Actually,
who
one
another
path rather than the believers'
is given against
threat
a
wrangles with the Prophet and makes
an
leaving
an
obligation. The path of the
which
is
the
-
is
agreed
is
an
basis
of
this
men
is
-
or
of faith here
that
which
one
It follows therefore that to follow ijmac
upon.
obligation. Al-Tufi
this argument from six
opposes
that if a threat is given for two things
(i)
aspects:
threat
evil deed
path.
collectively (as is the
case
with this
verse
-
viz.
to
dispute with the Prophet and to depart from the path of the
of
believers) them
it is not necessarily applicable to each
individually;
condition
or
does
a
mean
obligatory...;
(ii)
in
word
the
of them could be a
one
pillar of the other, and therefore the
not
verse
since
that
ijmac is
follow
to
that the definite article
"al-mu'minin"
might
(al)
used
special kind of
mean
people, which could then imply the Sahabah or some of them
since the address
only;
their
time.
"al-ihtimal
argument)
(iii) than not
than
it
is
established
yusqit al-ihtijaj"
so
this
means
made to them and in in
usul
al-fiqh that
(probability demolishes
that the argument is nullified;
that the annexation in the expression that
of
the
absolute, -
follows i.e
As
was
ghair". a
believers
-
(ghair sabil al-mu'minin)
due to the ambiguity of
The
different
verse
(a path other
is
the word "other
could be interpreted as
"he
path from the path of the believers"
opposed to their belief
(which
160
means
non-belief); and
this
meaning is witnessed by the logical
verse
itself
is
proof in the
no
ijmac;
and
of
verse
the
expression. Thus,
So,
is
free
from
that
is
the
threat
as
well
and
both
in
is
question corresponds to the
(v)
verse
joined to its conditional nature... prior to it three things:
verse
of
charity;
(2)
exhortation of
act
to
(1)
that the before it and
We find in the
exhortation to
make
conciliation
between
people.
ones
even
it
if
we
is
accept that the verse
which
a
the
a
proof for the no
impediment
a
stronger proof
Sharlcah than it.
The as
(vi)
prevents the pre-eminence of maslahah over
ijmac due to the fact that maslahah is of
So the
long as there is this possibility of
obligation of following ijmac, yet there is in
deed
mentioned in the
interpretation the proof for ijmac is rejected..; that
a
following the path of the believers means
not
As
as
exhortation to do justice; and (3)
doing things contrary to these verse.
path
the verse is not a proof for the obligation
following the path of the believers,
verse
there
of the obligation to follow
non-believers
the
which
lawfulness
promise.
after
that there is a mid-path between the path of
(iv)
believers
the of
before and
of the
sequence
second
which
verse
has
been
presented by al-Tufl
proof of ijmac is: "Thus have we balanced that
made ye
of
you an Ummah justly might be witnesses over the
161
nations...".12 Where
"justly balanced "
whose
dealings of
consensus
the people of justice
righteous. As long
are
the
means
i jmac is
as
mujtahids of this Ummah who have got
this
noble
quality,
just
means
of legislation and must be followed...
Al-TufI evidence is
a
also
it follows therefore that ijmac is
argued that this
ijmac. The
for
narration
and
and
falsehood
deduction of
laws
totality ijmac,
basis
those
who
and
applies to the act of
through the exercise of
diligence which incorporates in its
objection that the reality of
an
formation
on
formation
Ummah,
Qur'an,
the
the
the
but
on
a
validity of ijmac have accepted
basis
of
mere
indications
like qiyas and the narration of
on
firm basis;
consensus
obligates its application. However, most
assert
(riwayat ahad).
12
which
this qualification does not hold water.
which
mujarradah)
the
unfounded
is that justice
justice of the Ummah necessitates its
firm
its
wrong
raises
furthermore
of
he gives
an
giving evidence. Whereas in matters
concerning right and
the
reason
is
verse
a
necessity for righteousness in matters of
truthfulness
He
a
a
(imarat
single man
Still many amongst them have accepted its basis
just
on
of
mere
a
research
i.e
without
the pretext of the immunity of
and that whatever
its
2:143
162
consensus
might be,
a
whether is
not
come
on
firm basis
a
agreed
an
even
Al-TufI the
on
on
does
not
can
not
other
hand
be
the question still
it is admitted
purport!
remains concerning If by decisiveness
ijmac
or
it happened to exist
ever
against maslahah.
go
On the
it won't be anything other of
the
(iii)
Sharicah, viz.
than one of the
(i) al-nass,
the consideration of maslahah.
regard to ijmac,
it is not possible to accept it
basis
ijmac lest it becomes
is
another
existence
divided
into
well-established its
-
four
which
is
void.
categories:
of
However,
its
if
As
(i)
(mutawatir sarlh)
wording and verification,
terms
it
by decisiveness is meant legal
evidences
own
a
this is hardly non-existent in the proofs
expected to
if
absoluteness,
its
make
rationality (which does not contain
would
of
it
Thus,
together except on a
come
Sharicah; and if
the
(ii)
to argue that even if
decisiveness
that
contradiction),
three
followed.
basis...
weak
a
goes
Ummah
does
is meant
of
be
opinion that the Ummah does not
upon
decisive measure, what
must
together except on a firm basis i.e it
consensus
that
not
or
a
or
With the
on
proof proved by
it
regards al-nass, clear cut and
which is decisive in
yet it might be dubious
in
generalization and unrestricted nature. the
"mutawatir
sarlh"
specific possibility in that
case
does
but
dubious
have
a
he prevents it from
opposing the consideration of maslahah; well-established
not
(ii)
(mutawatir muhtamil);
163
(iii)
clear
and
but
cut
dubious
that
decisive..
the
basis
ijmac and
have
we
three
it could be
As
categories of
of
nass
decisiveness
the
isolated
seen
clearly
not
are
third
i
jmac
verse
ijmac
one
upon
which
-
then there only remains
-
consideration of maslahah and
decisiveness of
of
is rejected and excluded
nass
agreed upon previously
The
(iv)
and
.
the
another
(ahad sarlh);
(ahad muhtamil).
last
the
If
isolated
the
dependence of the
it.
on
which
al-Tufi
gives
as
a
proof for
ijmac is: "Ye
the
best
of
people evolved for mankind, enjoining what is right, forbidding what is wrong and believing in God The
are
manner
in which
this
verse
is
considered
to
be
a
proof for ijmac is that God's eulogy of the believers
signifies His justification for them; and therefore their consensus
should
Nevertheless,
ijmac in the
be
a
al-Tufi same
proof
(of the Sharicah).
opposes
manner
as
he
this
verse
has done
as
to
the proof for the
previous
one.
He
quoting
tries a
to
verify the proof of ijmac by Sunnah
saying of the Prophet which states:
"My followers will not
13
Qur'an,
agree
3:110
164
upon
a
perversion
or
wrong".14
something Al-Tufi
establishes
versions it
in which
attain
to
established
in
this
various
wordings and
saying has been reported have made
status
its
the
of
al-macnawi"
"al-tawatur
(the
meaning) and therefore it becomes
a
proof which necessitates the following of ijmac.
decisive He
the
that
that it is as strong as a decisive nass in its
says
wording and its basis and therefore deserves practice. spite of this fact, al-Tufi that
attainment
the
al-macnawl"
"al-tawatur has
simile and
reached
not
"
its
status
proof
the
like of
this
of
in
is
this proof and
opposes hadith
to
the
conceded
not
status
In
says
of
simply because it
strength the position of an Arabic
generosity of Hatim and the bravery of CA1I in
celebrity.
"al-tawatur
So anything less than the
al-macnawl"
is
not
so
a
strong
if it acquires the quality of majority
even
transmition
(al-ifadah)
people.
among
Suppose somebody might argue,
says
al-Tufi,
that the
proof of the firmness of this hadlth is that the Muslim Ummah
has
argues
ways:
this the
14
accepted its validity.
Nevertheless,
al-Tufi
that this assertion could be refuted in three
(i)
that those who rejected ijmac have not accepted
hadith because claim
that
the
of
their
opposition to ijmac;
Muslim Ummah
Reported by Ibn Majah
165
has
thus
unanimously accepted
it
is
of
the
valid;
not
Ummah
in
(ii)
that the implication of unanimity
accepting this hadith is
mere
proving
ijmac by another ijmac which is invalid; and (iii) that the
acceptance of the hadith by the Ummah on the
probability of
agreement is,
our
in actual fact,
a
supposition and not decisiveness. A supposition cannot formulate of
the
being
of
ijmac which is alleged to be
so
it is deprived of its strength...
hadith
goes
in
on
to say:
"Even if
we
accepted that
question has reached the status of being
firmly established (tawatur), nonetheless, that
mean
one
strongest proofs of the Sharlcah simply because by
Al-Tufi the
basis
the
we
it
hold
to
this does not
require the obligation of
following ijmac, because of the possibilty that what meant
by the word "perversion" might refer especially to
non-belief.
The
lack
of
the
of
consensus
the
Muslim Ummah
perversion in this special meaning does not exclude
on
its
agreement on another perversion.
not
a
suitable
non-belief. for
In
the
ijmac to base "Follow
Thus,
this hadith is
proof for the obligation of following
ijmac other than interpreting faith same
on
way,
as
opposed to
it is not suitable
a
proof
another hadith which states:
the
majority (of my Ummah), verily he who keeps aloof (from it) will be thrown in hell fire, and the hand of God is over the entire
body",15 15
was
Reported by Ahmad ibn Hanbal and Ibn Majah
166
simply because this hadith and
the
Imams
6.9
OBJECTIONS
to
TO
against them.
go
THE
PROOFS
IJMAC
al-Tufi puts
Qur'an and Sunnah,
the
OF
completing his argument concerning ijmac based
After on
not
to obey the rulers and
means
forward two
general objections to the proofs which he has mentioned:
(i)
which
of
another
a
mentioned
Thus,
verse
(ii)
divided
(i.e proving ijmac by
into
"believers" in the above
the word
include
all
the
"my followers" in the hadith Nevertheless,
and need be
ijmac by these
to prove
circular argument
ijmac);
occur
of the Muslim scholars due to
consensus
conclusiveness.
proofs is
apparently hearsay upon
are
problems in interpretation
some
proved by the lack
ijmac
that the proofs of
believers;
encompases
and the word
the whole Ummah.
according to another
the Ummah,
hadith16 is
seventy three sects and does not come
together except on the belief of God and His Messenger and
other
few
fundamentals concerned then
obvious
claimed, for
its
are
not
that
and the
fundamentals.
therefore all
the
this verse
is
These
basic
which
ijmac is
the
ones
rules
of
not
place where ijmac is
a
the
and the hadith
Sharicah.
are
not
It
is
applicable
proof...
Then
16
and
basic
al-Tufi
winds
up
the proofs for ijmac based on
Reported by al-Darmi
167
for
the
it
that
is
be
taken
found
that
error
in
carried
agree
proof for ijmac simply because it is
a
as
people of different faiths do agree on
great numbers and after hard work with
out
diligence and high intellectual
connection with
visualized by
he
manifests
to
the
the
is
immunity consensus
in
of
one
the
themselves
in
Muslims.
aspects in which
proofs with regard manner:
(i)
of the proofs of the
immunity from making mistakes and
Sharicah should attest their case.
Muslim Ummah
the
error
for the assembly (of the
which is not the
-
the
of
ijmac in the following
of
necessary
least
prey
four
contradiction of
to attain
at
or
as
discusses
ijmac is considered
mujtahids)
errors
in God
al-Tufl
verification
Sharlcah it
sins;
faith
this
After
an
in research
a
if
an
this acceptance is not
capacities, because they become
that
on
magnitude after striving diligently and
researching the law. Nevertheless, to
generally impossible
pious and intellectual people to
in
error
establishes
and
reason
is
or
invalid
The protection of the
mujtahids from making simply because the
possibility of making mistakes is not ruled out. As regards the witness of the Sharlcah to their exemption from
making
some
individuals,
(ii)
that the term "my Ummah"
errors,
it has only been reported to
which
are
"My Ummah will not agree on mean
to
include
all
the
us
by
insufficient to establish it;
a
sects
168
in the hadlth which states: perversion of
the
..." does not
believers
due
to
the
fact of
that
the
some
of
these
have
sects
been
deemed
to
be
out
pale of Islam because of their innovations in the
belief. circle
They are not therefore to be included in the of
the
assembly;
and still
some
sects do not hold
of the proofs of the Sharicah and therefore
ijmac
as
their
assembly is not to be taken into consideration even
if
one
they do so. The term "my Ummah"
suitable
to
mean
al-najiyah) because
sect
is
which
saved
(al-firqah
only amongst the seventy three sects simply
this
proportion
the
in the hadlth is not
so
will as
lead
to
make
to be read:
an
estimation
in
"Eighth of the nine parts of
Ummah will not agree on an error"; which is too weak a
my
style of speech to be accredited to the Messenger of God. follows
It
therefore,
the meaning of
that
the
hadlth
the
proof does not confirm ijmac.
should
be
especially "non-belief"; and thus
prefered the clearly stated
nass
ijmac in the question of debarring one
third
"perversion" in
(1/3) of inheritance
so
(iii)
that Ibn cAbbas
(zahir al-nass) a
over
mother from taking
that she took one sixth
(1/6) with the existence of two brothers. He cited the verse:
"If the deceased sisters ) . . . " ;17
and he
caliph)
17
Qur'an,
debated with
left
brothers
(or
cUthman ibn cAffan
(the third
saying that God has judged in the Qur'an that if
4:11
169
deceased
the take
left
sixth of
one
brothers
two
brothers the
in
are
third.18 cUthman
sisters)
inheritance,
the
the
(iv)
that
Safrabah
clear
since the
therefore,
one
ibn cAffan
sixth
only and not one
agreed with the opinion of Ibn
cAbbas contrary to his own opinion and that
the mother has to
plural form in Arabic language,
should deserve
the mother
(or
meanings of
nusus
are
ijmac. This
means
stronger than
ijmac;
Ibn Mascud went against the ijmac of the the question of the permision to use sand for
on
purification "tayammum" while in sickness and said: allow
to
we
sick people
the
"Were
to use tayammum instead of
making ablution,
then a person would resort to it because
of
coldness
there
of
Ibn Mascud
no
criticism of
when
Mascud
was
of
Sahabah
the
was
water".
was
Although this opinion
widespread at the time of the Sahabah,
it
has
received
been
right in going against the because
of
the
from
them.
nass19
Ibn
and the ijmac
general maslahah,
implies that the pre-eminence of maslahah
If
upon
this nass
and
ijmac is possible and permissible. On the contrary, if Ibn Mascud the
Sahabah
both
18
See
The
M. ,
is
wrong
in his opinion,
erroneous
situations
the
al-Tufi 19
was
the
for
not
then the assembly of
criticising him;
and in
proof of ijmac is repudiated.
Zayd, Al-maslahah fi al-tashric al-Islami 126
wa
Nairn al-Din
p.
in
question is the hadith which states: "The earth is for me and its sand is a purification, wherever time for prayer comes I purify myself with the sand and pray on it". Reported by Muslim. made
a
nass
mosque
170
Al-Tufi
goes
difference
to maintain that first of all,
on
the
opinion of Ibn Mascud is contrary to the
of
ijmac of the Sahabah; and secondly, although Ibn Mascud
al-AshcarI,
criticized by Abu Musa
was
individual
criticism and only
mistake
not
in
consensus
of
Sahabah
as
opinion of Ibn Mascud,
the
Therefore,
against the
nass
of
the
Before
establishes
its it
the
fact
fact
that
he
means
consideration hadith
"la
opposition to the ijmac and
his
that
that
of
darar
in
he
maslahah »
wala
himself
the
favour
basis
of
the
consideration
of
a
complete rejection of talks
it
of
(acts of worship)
this
«
as
in
and the like.
regard is to clarify that the which
dirar"
is
is a
Sharxcah than ijmac simply because than
Ibn Mascud which is
paramount and intact.
cibadat
connection with All
merely a
finishing his analysis of ijmac, al-Tufl
the
to
was
that formulated the basis of the ijmac
proofs should not be taken due
Since the
it follows that the
the opinion of
remains
Sahabah
an
community did not reject
a
disapproval of Abu Musa al-AshcarI contention.
was
indicated the Sahabah's
repudiating Ibn Mascud.
the
it
deduced
from
the
•
stronger proof in the
its basis is stronger
ijmac. He further tries to
prove
in
opinion which he has put forward,
that the
of
nass
maslahah
ijmac in three respects:
takes
(i)
precedence
over
and
that those who rejected
ijmac have accepted the consideration of maslahah. This means
that
maslahah
is
a
matter
171
agreed
upon
by all
ijmac is
whereas
maintain
something which is agreed
about
that
do
nusus
subject of disagreement; and to
a
which
is
there
contradict
and
upon
disagreement;
is better than (ii)
that the
disagree with each other thus
causing difference in judgments and decisions which would appear
to be blameworthy in the Sharicah;
consideration itself
where
is
of maslahah is
none
an
different,
item of
better
6.10
THE
and
agreement
in
and this quality of
agreement is desired in the Sharicah. is
whereas the
Thus to follow it
safer.
SOURCE
OF
DISPUTE
AMONG
THE
FOLLOWERS
OF THE
MADHAHIB
After
putting forward
accordance
and
some
nusus
which demand
agreement in judgments and decision
making, al-Tufi digresses and points out what happened to followers
the
of
of
celebrated
the
jurisprudence who,
with
each
other
due
Imams
of
the
four
schools
later, began to dispute and argue
to
competition between them,
preferring the apparent meanings of the
nusus
rather than
taking maslahah into consideration. Had they agreed with each
other
nugus,
in
their
then there would have been neither dispute nor
difference
of
opinion...
maintaining that scholars'
narrations the
methodology of dealing with the
nusus
one
Al-Tufi
goes
further
of the main causes of the Muslim
disagreement is the contradiction of the of of
hadith and
Qur'an.
the
divergent interpretations of
He mentions
172
the assertion of
some
people who said that the sole in
hadith
cUmar
is
from
Sahabah
of the contradictions
cause
ibn al-Khattab
who
prevented the other
compiling the Sunnah when they asked
permision from him and he replied: "I
write
don't
the
else".20
cUmar's opinion is contrary to
Nevertheless, of
the
Qur'an along with something
some
sayings
Prophet such as:
"Write
for
Abu
Shah
sermon";21
farewell
the
and "Preserve
Al-Tufi allowed the
down".22
quotes from those people who say: the
Sahabah
to
write
down what
"Had cUmar
they heard from
then the Sunnah would be fully preserved and
Prophet,
every
knowledge by writing
hadith which reached the Imams would have the
authority of the Companion who transmited it, and those books
would
al-Bukhari, instances between
in which
be
to
us
as
we
Muslim and others,
in
the
nusus
he
known
and
finds
Sunnah
clear
(iii)
in which
masalih.
know
the
books
that there are some
contradiction
Al-Tufi
of
occurs
gives eight examples
opposition. Then he concludes by
saying that the consideration of maslahah must precede all
211 2-1 9 9 "
the
See
rest
Mustafa
Reported by
proofs of the Sharicah in order to improve
Zayd,
op.
cit.,
p.128
al-Bukharl and Ahmad ibn Hanbal —
T
Reported by al-Darmi
in Muqaddimah,
173
p.
43
the
people's welfare,
all
the
organise their affairs and
goodness which God has bestowed
binding all the rules together in
upon
procure
them by
systematic order and
a
getting rid of all contradictions. Then he states that the
pre-eminence of al-masalih al-mursalah evidences
other reason
a
Sharicah is
after
reaches
device take
in
is
of
discussing these three aspects is is
stronger legislative
a
over
all the evidences of the Sharicah if
contradiction between them.
any
AL-TUFI'S
CONCLUSIONS
•
this
After
use
Sharicah than ijmac and should be made to
the
precedence
there
question of the
a
special preference. The inference that
al-masalih al-mursalah
that
6.11
rather
or
al-Tufi
of
all the
over
ON
assertion,
MASLAHAH •
•
al-Tufi gives four answers to
suggested objections to his exposition of the pre-eminence of the consideration of maslahah the
proofs of Sharicah.
conclusion
in
al-mursalah a
mere
rather
favour
is
not
mischievous it
is
of
to
He maintains that: the
the
(i.e ijmac)
al-fiqh). the
(ii)
benefits
analogy resembling satanic thinking,
which is
of
an
the Lawgiver
of
His
the
precedence of
of
as
over
174
a
stronger
a
strong
(in usul
is well versed in all
(God)
creatures
maslahah
over
accepted principle
His
depict this reality. Nonetheless, consideration
(i) his
proofs of Sharicah by
proof (i.e the consideration of maslahah) one
all
precedence of al-masalih
diminish
assertion
an
over
the
bounties
to
them
the pre-eminence of the
proofs of the Sharlcah
is
never
is
one
denial
a
simply because maslahah
long as God has given us the talent of
as
recognizing reasonable
of
truth
amongst these proofs and the most preferable.
Moreover,
which
this
of
benefits normally,
our
discard
to
might be
maslahah;
it
and
it is therefore not
depend
on
ambiguous thing
an
doubtiful method towards the attainment
a
(iii) he refutes the claim of those who
allege that the difference of opinion of the Imams on the
question of legal rules and judgments is "
ikhtilaf
sound a
nass
sound
must
al-Aimmah
take
to
more
mercy
that there is no
says
and
if there
even
support this opinion,
preference
is
former
He
support this claim;
to
nass
rahmah".
a
were
the agreed maslahah
the disagreed one because the
over
probable than the latter. Moreover,
the
disagreed maslahah makes possible two harmful effects: (a) of
people would be given to use the dispensations
some a
them
certain madhhab to
deem
some
therefore
involve
that
of
some
the
(school of
unlawful
things
themselves
in
non-believers
which could lead
law)
lawful
as
and
ones
great wickedness; who
in
are
need
(b)
of
embracing Islam might be prevented by the differences within to
the
involve
from
them.
Ummah, error
It
is
because and
those differences
naturally
without
doubt
a
in
following the
principle of the consideration of maslahah the towards causes
making beneficial judgments of
differences
are
are
demolished;
175
thought
would be repulsed
man
that
are
ways
unified and the
(iv)
he further
establishes
his
that
analysis is not
erroneous
but is not
necessarily the only method due to the fact that the foundation
of
this
analysis is the
Notwithstanding, there is
which
reason
an
urgent necessity to follow
simply because probability in question of customary
law
(and transactions) The
matters.
Ummah a
of
probability only and not decisiveness.
assumes
it
use
before
is equal to decisiveness in other
argument that by doing so implies that the this
generation must have been
is just
wrong
misunderstanding which could be arrived at by anybody
who
to
comes
With
before.
a
methodology which has never existed
new
regard to the vast majority
al-aczam) which the hadlth commands is
clear
a
poof and
consideration of the
us
great argument
a
maslahah
in
the
to
(al-sawad follow,
in favour of the
sense
that
had
case
been
so,
then it would be necessary for
scholars
(who
are
few)
went
against them Al-Tufi
al-masalih
on
different
his
that
pre-eminence of maglahah
Malik
the
and
all the proofs of the
over
unique from the theory of Imam
al-mursalah
in
the
that
sense
He goes on to say:
consideration
actual
the acts
nusus
of
maslahah
is
in
(of the Qur'an and Sunnah)
fact
a
customary law and general social
176
his
"The
support of
and ijmac in the
worship whereas its consideration in
transactions,
they
theory of the
theory is more comprehensive... of
not
to follow the masses whenever
maintains
is
it
the masses are the majority.
as
Sharicah
there
obligations, acts
of
it is
worship
verified
either
a
says
basic condition". al-Tufi,
In connection with
the rules and judgments are
by single clear cut proofs
variety of proofs which
congruent
are
or
by
in meaning,
a or
by
contradicting proofs which could be grouped together without
affecting the
But
nusus.
if the contradicting
proofs could not be grouped together, precedence
the rest of the proofs,
over
or
else nass
precedence in the absence of ijmac.
takes
When
the
proof is singled out from the Qur'an for a
particular judgment, whether it be or
then ijmac takes
an
apparent meaning of a verse,
a
clear cut ordinance
it has to be exercised
by giving the precedence to the most probable of its suitable
meanings.
meaning of the those
verse
possibilities
worship...
if
as
are
multifarious,
and
the
of
may
of equal strength,
be exercised in the acts of
two or numerous,
are
the
like,
verses
by
or
if at all there verses
are
together;
deemed
implications
are
grouped together by the
are
is
means a
but in cases where their then one or some of
abrogated and the
by the agreement of the Sunnah.
177
of restriction
possibility of
grouping together becomes difficult, verses
then they will be
But if their
congruent.
particularisation
grouping the
the
then any of
they were one verse only if all their
implications
method
are
If the proofs from the Qur'an for the same
particular thing taken
If the possibilities of the apparent
case
is verified
When
the
becomes
Sunnah
the
only evidence in a
judgment and the proof is verified by it
then
is
further
based
on
to carry out that hadith without any
necessary
research.
if
But
than
more
sound hadith,
one
one
the
proof from the Sunnah is
hadith and all
ahadith
the
•
•
are
equal in correctness and their implications are unified, then
all
ahadith will
the
hadith only. nonetheless will
be
applied
If their implications
if they
as
one
and if grouping is
another;
of them will be deemed abrogated.
some
need
no
to
beyond it for another proof;
go
meaning is not specific, verified with more
than
some
of
the
that
the
if
it
is
ahadith
necessary far
are
sound
not
ones
is are
a
provide evidence in
to be applied;
as
a
particular
then
one
the
should
they disagree. (i.e Sunnah)
other. be
in soundness,
case,
things should take place, either they or
natural
possible... When the Qur'an and Sunnah
both
of
it
or
to give precedence to the most correct
as
other
but if the
Sharicah. If
compete with each other
ones
two
then there
conjunction of the Qur'an and ijmac
amongst the proofs of the
ahadith
the
If the
then proof should be sought and
practice that only the correct but
one
then they
meaning is specific just in the Sunnah itself, is
were
divergent
are
they could be grouped together,
merged with
impossible
be
But
found
to
if
is
If they a
agree
one
agree
of the
with each
with each other,
clarification and
an
emphasis
they disagree with each other, a way
bind
them
together as much as
178
possible; and if grouping them together is impossible, then
is
should
one
suitable;
then
the
be
but
in
deemed
abrogated by the other if that
case
abrogation it is not applicable,
Qur'an should take precedence over
the Sunnah
simply because it is the origin and logic demands that the
origin should not be discarded for its This
the
is of
acts
how
and
consideration all
is
word
no
killer, stone
the of
of
an
maslahah
then
be
to
added
all
the
some or
is the
if any other proof agrees with it, as
is
the
case
with
the
where nass, -
eg,
ijmac and
or
to flog or
of
divergence between
Sunnah when there
is the possibility
In
the
five
to kill the
amputate the hand of a thief,
to
Qur'an and
judgments
norm
people in the first place
agreed together
adulterer...
merging
of
(al-ahkam al-khamsah)
have or
in connection with
rules
practices the established
else,
fundamentals maslahah
defines
worship. Whereas in connection with
transactions
before
al-Tufl
derivative.23
case
of the proofs into others in
some
conditions while excluding the others
taking into account the consideration of maslahah, they could be grouped together.
or
of
then
If grouping together is
not
possible, maslahah takes precedence
the
proofs due to the fact that the hadith "la darar wala
dirar"
23
See
states
op.
the rest of
categorically the negation of injury which
Mustafa
Khallaf,
over
Zayd, op. cit., appendix, cit., pp. 138-141
179
pp.
43-46; cAbd al-Wahhab
prompts the consideration of maslahah, take
and thus it must
precedence due to the fact that maslahah is the main
objective
far
as
people
as
are
concerned in the
legislation of laws, whereas the rest of the proofs in
reality
should
take
pre-eminence
Al-TufI
here
between benefits therefore
or
or
contains
(masalih) and injuries
He
a
a
be
as
acquired
begins by saying that
or
much as possible.
every
proposed
only, or mafsadah alone,
and mafsadah
single maslahah
possible to acquire
(mafasid); and he
to avoid that
canon
both maslahah
constitutes
the ends
the means...
over
constitutes maslahah
law
Logically,
perceives the possibility of opposition
lays down
contradiction... rule
to this objective.
a means
are
together.
several, But
If it
then it has to
if it is not
than one and the masalih were
more
contending against each other in degrees of importance, then
the most
important
there
is
no
means
of
preference,
about
which,
a
forms,
more
possible.
which
is
difficult has
to
be
one
the
then
are
to be acquired;
only will be obtained by
lots will take place...
If
ever
only quality within a thing in one or it must be expelled and checked as much
But when it
is not possible,
possible has to be expelled. to
and if
but if there happens to be doubt
then drawing
is
mafsadah
as
competition
ones
then only that
If it becomes
stop more than one mafsadah then an effort
made
to
expel the most injurious mafasid if
they are at different levels of harm;
180
but if they
are
then only one amongst them will be debarred by
equal,
selection
of
means
and
the maslahah
mafsadah
much
as
then
so
mafsadah
the
it is incumbent and
thing,
do
by drawing lots if doubt
or
of
importance.
But
anyone
selection
doubt
contradict
mafsadah
the
and
weightier obtained
be
one
one
As
a
the
but if it is difficult to one
which is
if they
are
apparently equal in
could take precedence in occurs,
each
then drawing
lots will
other,
or
a
maslahah counteracts
outweighs the other respectively,
then
(al-arjah) will be preferred either to
expelled.
or
importance, only selection
a
If two masalih oppose each other or two
place...
mafasid a
if
but
If
expel if they are at different
or
importance, then
take
to deter
precedence should be given to the
important to obtain levels
altogether do exist in
necessary
possible,
as
occurs.
one
If both
are
of them will be considered in the
by means of preference
conclusion
equal in
to
his
or
drawing
lots...".24
analysis of the theory of the
pre-eminence of the consideration of maslahah in Islamic al-Tufi
law,
emphasizes the point that this theory is
applicable only to transactional operations
(mucamalat)
and
customary law and not to the acts of worship due to
the
fact
in
24
the
See
that
the
realm of
Mustafa
al-Wahhab
rules
and
laws
concerning mucamalat
are
political affairs whose enactment depends
Zayd, op. cit., appendix, op. cit., pp. 141-142
Khallaf,
181
pp.
46-47;
and
cAbd
on
benefits
the
in mucamalat
of
the
it is important that
people. Thus,
consideration of maslahah
the
should
take
precedence and formulate its basis. Whereas the acts of
worship
are
one
know His
can
the rights of the Lawgiver
time and place
(God)
alone and no
rights in terms of quality, quantity,
except through His decree and will.
It is
obligatory therefore to perform acts of worship in the they have been laid down for
way
Himself
us
by His Prophet and not
or
by the Lawgiver
as
it has been
stipulated by the philosophers who worshipped through their
reason
denying the code of laws from God and
made Him angry,
and consequently they lead astray and Then al-Tufi winds up his
perverted other people...
analysis by emphasizing of
the
devices
special
of
the
Sharlcah,
feature
to
the
in the light of customs and proof of the Sharlcah
If
we
find
neglected it
or
has not considered it,
common
know
its strongest proof and
people who have been given
responsibility (mukallafIn)
has
again that maslahah is one
once
He ends up by saying that maslahah is a
one.
distinct
sense.
that
we
are
that
any
consideration
as
is
it
clear
own
the
Sharicah have not encompassed all
judgments of the everchanging events we
are
judgments by
then we should
prompted to obtain that maslahah through
our
that
so
that
the
nusus
the rules and as
much as we know
required to complete those rules and means
of qiyas.
182
of
THE
Al-Tufi's consideration
CRITIQUE OF AL-TUFI'S THEORY
theory of the pre-eminence of the of
is
maslahah
based
on
three
propositions:
that maslahah is the pivot of the intention of the
(i)
Lawgiver,
thus it is the special and the strongest of all
the
proofs of the Sharicah;
for
maslahah
coincide
to
(ii)
with
a
that it is not necessary decisive
ijmac of the Muslim Ummah, but it
ijmac,
and them
on
in which basis
the
case
of
the
can
go
nass
or
the
against the nass
it should take precedence over first
assumption;
(iii)
that the
sphere of action within which his theory could operate is in
(mucamalat) and customary law which
transactions
concerned
with
the
people's polity and social
obligations. As regards the acts of worship, should be
are
their rules
directly received from God due to the fact that
they belong to His will.
Al-Tufi
presented proofs for each of these
propositions at the beginning of his explanation of the hadlth
"la
hadith
itself
darar
is
dirar",
wala the
first
due
to
the
fact
that
the
proof for the first
proposition and the basis of his analysis.
Then he
produces detailed proofs showing that the Lawgiver has considered maslahah
in
this
on
Sunnah,
this
again and again to emphasize his position.
to
the
establish
Qur'an,
the
every
thing,
basing his proof for
ijmac and qiyas♦
He does
In trying
precedence of maslahah al-Tufi weakened
183
ijmac and made it celebrated He
these
also
the
the
schools
of
cause
the
to
Imams
nusus
the of
the
with
idea
the
disagreement.
that
maslahah
the
Sunnah.
He
darar
issue
on
ijmac
which there is
is the subject of
to be just
in
our
discussion
on
Then
clarifies and
the
Sharicah's
the
fact
that
inevitable.
this
meaning by discussing the
exclusions
infliction
The
same
a
is
cause
therein and of
of
injury by God's decree is
the
case
the
measure.
exclusion of
The hudud
injuries to those inflicted,
precise It
with
and other remedies for various
justice legalized by
the masalih.
says:"As regards
causing injury it is due to
special legal
(revealed punishments)
some
its
except by a specialised measure".
limitation
causing harm by
do
establishes
"No injury should be caused (whether
illegally)
limitations
in which he
dirar"
wala
or
mentions
stronger than
begins with the explanation of the hadith
legally
of
is
it is imperative to observe the
theory,
meaning to be:
crimes
that he could come
so
of the logical progression of his analysis.
Al-TufI
he
an
the latter
In order
al-Tufl's
sequence
acts
Qur'an and
eventually rejected them
agreement whereas
"la
jurisprudence.
divergence of opinion of
simply because the former is
the
Islamic
of
presented the proofs of ijmac and after discussing
them he out
of
Imams
referred
point of divergence amongst the four
a
is
nusus
clear
a
as
they are
special proof. Then he
which he maintains confirm
here
184
that
it
means
that
the
proofs of the Sharlcah do not conflict with maslahah in whatsoever simply because all types of injuries
any
case
are
initially excluded by the Sharlcah. As regards the
hudud
and
other
punishments for the different crimes,
although they seem to appear as injuries in themselves, they are in actual fact applied to attain important benefits
such
lives
people will be under great threat.
the
of
hadith
security and
as
"la
darar
In
dirar"
wala
pre-eminence of maslahah
peace
over
is
without which the
not
a
In this case
proof of the
nass.
spite of this, al-Tufi bases his opinion
the
upon
implication that this hadith makes maslahah override all the
evidences
of
by saying that if
injury,
we
hadith.
Thus
Sharicah.
the
He
tries
to
support this
evidence of the Sharicah contained
some
should get rid of that injury by applying this that
evidence
of
the
Sharicah would be
particularised by the application of this hadith and with
reconciled
suspension of would the of
this
be
evidences
one
Otherwise,
it would result
of these evidences
hadith.
There
is
no
in this
-
doubt
that
to
in
a
case
it
apply all
collectively is better than suspending
some
them.
Most
evidence in
it.
Muslim of
the
scholars
would
argue
Sharicah contained
that even if some
injury and therefore
would
require this hadith especially to
get rid of that injury,
it does1nt necessarily oblige the
such
a
case
we
185
precedence of maslahah an
application of
one
takhsis
means
of
would
argue
over
nass
nass
coming before another
(particularization). Moreover,
like
this
hadlth
particular evidence, restricts vice
not
they
in which
stands
general
a
together with a
it is the particular
which
one
general one yuhmal al-khas& cala al-camm anc}
the
versa.
Al-TufI
that
sees
consideration
of
particularizing
the
maslahah
nass
pre-eminence of the the
over
by maslahah
nass
or
a
as
a
type of
clerification of
by maslahah and claims that this method,
nass
by
nass
that in the method of general
particularization (takhsis camm) evidence
but it would rather be
as
a
principle, has its origin in usul al-fiqh whereby sometimes means
of
the
come
to precede
after
evidences
takes
of
precedence over the Qur'an by
(clerification) while in actual fact the
bayan
Qur'an has to
Sunnah
it. the
Most
the Sunnah in legislation and not Muslim
and
is
agree -
but they would
-
that some this argue
is
an
that
agreed matter that the implication of nass
an
ijmac could contain injury. As regards the hudud and
other are
not
do
Sharicah do restrict others
agreed factor in usul al-fiqh it
scholars
punishments,
exercised
in
they have already said above that they
order
to
whereby the injuries which
punishments
are
obtain are
important benefits
caused by these
far less significant
expected benefits in them. The
186
case
as
compared to the
is not also
understood
with
dictum
the
consideration of
the
hadith
"la
by
nass
darar
he
cast
of
a
wala
al-Tufi
dirar"
himself
doubts
some
which
maslahah
has
to
of particularization
means
that
seems
in which al-Tufi
maslahah,
on
the
has
is
felt
clarification!
this
on
forward
his
in
as
about
case.
defines maslahah
according to the common
between
usage,
the
two
is
no
definitions...
As
he notes, maslahah is
"a
cause
objective regards the
which brings
such as trade which brings
goodness and advantage,
profit; whereas in accordance with the technical Sharicah, maslahah is "a
the
t
intention of or
1
the
customs...";2
could
basis.1
well as in accordance with the technical usage
difference common
strong
al-Tufi tries to refute this truth
Sharicah and remarks that there
the
a
as
detailed account of maslahah and ijmac to
a
Al-Tufi usage
It
ambiguity when
weak basis,
a
compared to the ijmac which is based on
by giving
precedence above
strength of the consideration
which is based
Inspite of this fact,
that
implied from the
take or
asserts
»
cause
usage
in
which leads to the
Lawgiver whether being acts of worship and the literal meaning of
give light to both the definitions.
its wording Maslahah,
to
Zayd, Al-maslahah fi al-tashric al-Islami wa Nairn appendix, p. 15; and cAbd al-Wahhab Khallaf, Masadir al-tashric fi ma la nass fih, p. Ill See
Mustafa
al-Din al-Tufi,
2
See
Mustafa
Khallaf,
op.
Zayd, op. cit., cit., p. 112
appendix,
187
p.
19;
and
cAbd al-Wahhab
al-Tufl, it
is
is:
expected to be, its
when
with".
is
with
it
Lawgiver
or
main
is
obtained
Lawgiver
for
could not be of
pen
writing;
any
the same is the
"Is the benefit so
question arises: cause
is it the
existence?"
used
a
profit is the corner-stone of its
the
But
the
the
is
trade,
obtained
so
as
such as a pen becomes a utility
quite obvious that
unless
existence.
own
in its perfection
quality is expressed through being writing
It
benefit case
"the quality of a thing
purpose
Al-Tufl sole
the
leading to the intention of the
has
which is embedded in its
argued here that the benefit
basis
to
which
intention
the
of
its rationality; and has formulated his
owes
opinion by making maslahah pre-eminent above all the evidences
of
the
Sharlcah
that
so
pivot of its rationale. However, on
consideration
the
of
the
legislation in the Sharicah not
stands
as
the
if his theory is based
maslahah as
alone
as
a
cause
he has argued,
of
then it is
for him to hold it unique amidst the rest
proper
Sharicah due
evidences
of
the
evidences
do
share
based
it
this
common
consideration
to
the
fact
factor.
But
all
that
his
the
theory is
of maslahah
as
the
pivot of the intention of the Lawgiver
as
he has argued
in
so
on
many
al-Tufi
3
See
the
places in his
aimed
Mustafa
at
Zayd,
al-Wahhab Khallaf,
treatise.3
It
sole
is clear that
emphasizing the general outlook of
op. op.
cit., appendix, pp. 21 & 46; and cit., pp. 110, 129 & 141
188
and
cAbd
maglahah as he perceived it, considered
Sharlcah as
it
is
has
be
to
by
the
strongest of all the evidences of
the same as "maslahah mursalah"
no means
defined by
been
and the maglahah which he
the jurists.
This could be
easly discovered from his technical definition of "Maglahah is
maglahah when he said: intention of
the
of
worship a
i.e
of
said
acts
that
maslahah
and
not
cause
leading to
Lawgiver whether being in the acts
law."4
customary
or
maslahah
the
a
al-Tufi has made
By this,
general feature encompassing both the fields
-
worship and customary law; while he himself
the
realm
in
which
consideration of
the
operates concerns transactions and customary law acts
worship...".5
of
In this he seems to be
arguing with himself. Secondly, it is also obvious in al-Tufi's assertion that
reckoned
he
nineteen comment
"al-magalih of
the
Sharlpah when he made his
hadith
".la
darar
evidences on
the
introduction
of
his
book
which he
established
Sharicah
are
4 5
See
reference
See
Mustafa
Khallaf, ^
See
Mustafa
al-Wahhab 7
op.
al-mursalah" with the
nagg
that
wala
and
at
al-ilahiyyah"7
"Al-isharat the
dirar"6
the
after
strongest evidences of the
(Qur'an and Sunnah)
and ijmac which if
above
Zayd, op. cit., cit., p. 112 Zayd,
Khallaf,
op.
op.
appendix,
p.
19;
and
cit., appendix, pp. 16, cit., pp. 109, 110
Najm al-Din al-Tufi, Al-isharat al-ilahiyyah,
189
cAbd al-Wahhab
17;
p.
3
and cAbd
they disagree with maslahah it is obligatory to make it take
precedence
have
contradicted
nass
and
them.
over
himself
ijmac, and at the
Here again al-Tufi
seems
to
by making maslahah weaker than time making it the
same
strongest evidence above all.
Thirdly, he has expressed his method in connection with
consideration of
the
theory is not the al-masalih
void.9
is
that
Thus
the
unrestrictness neither -
which
been
from
that
every
intention
any
a
in
that
that
maslahah
which
conflicts
type of maslahah,
keen
his
Imam Malik held of
what
sense
considered is
said
and
the
even
the
Malikis with
nass
in its form of
i.e the benefit which has
(mursalah)
al-Tufi
free
as
al-mursalah8
maitained
have
same
maslahah
by the Sharicah
nor
to
general maslahah
analyse is
a
reservations and conditions.
cancelled it
He visualises
kind of maslahah enters the realm of the of
the
Lawgiver without distinction
or
categorization into the different kinds of maslahah. Never
does
he
(daruriyyat) the
luxurious
demarcate
from the reasonable ones
(tahsiniyyat)
agreement between nasg, basic
8
fundamentals
Mustafa
Khallaf, 9
Mustafa
Zayd, op. cit.,
op.
Zayd,
between
op.
the
necessary
ones
benefits
(hajiyyat)
and from
though he points out the
ijmac and maslahah in the five
(i.e the preservation of religion,
cit., appendix, 138
p.
cit.,
pp.
51-53
190
p.
43?
and cAbd al-Wahhab
mind,
soul, went
offspring and material
further
even
than
the
division
and
a
of
maslahah
into
categories is
unnecessary
judge masalih (benefits) should be
to
comprehensive than that and what
he
issue
the
by Ibn Qudamah by saying that
uselessly painstaking, and states that the best
method
here
in his commentary on
that,
al-Rawdah written
Mukhtasar
wealth).10 Al-Tufi
says
precise. Let
more
those
that
quote
us
there in order to cast some light on
Al-TufI
regarding his opinion.
informmed
more
who
divide
says:
"Be
into
maslahah
considerable,
cancelled and unrestricted;
unnecessary
have just flattered the issue and taken
-
pains for nothing while the
way
quite general and concise. Thus
necessary
and
to judge maslahah is we
have established that
the
Lawgiver has considered maslahah in absoluteness and
has
excluded if
that
an
it,
and if
it.
But
and
bears
mind
if
that
injury in its entirety.
action consists
of
pure
an
action
injury the
on
envelopes maslahah on the one hand the other
attainment
side
which
mere
selection.
op.
See
cAbd
maslahah we have to do
it consists of total injury we must discard
of
-
and it
maslahah
repelling of injury in that action
10
So upon this we say
carries An
al-Wahhab
cit., appendix,
p.
more
weight
or
-
we
appears
in
our
is
as
we
either prefer the
equal as the
make our choice by
example of this issue is like the one
Khallaf,
op.
cit.,
46
191
p.
141;
and Mustafa Zayd,
who
does
not
his body in
cover
(the front or the back of his body);
parts only
is he to
case,
enough clothes to
except a piece which suffices one of his private
prayer
unveiled
an
possess
cover
shameful
his
due to the fact that it is
rump
evil,
has
or
he to
part because of facing the qiblah
holy shrine in Makkah),
in this
cover
his
front
(the direction of the
is he to choose between the
or
two
because
the
two
the
injury and either the attainment of maslahah is
of
the
conflict
between
the
and
maslahahs
two
injuries? But if the maslahah is not
as
equal as
weightier than the repelling of injury or vice versa, then an
adhere
we
exercise
the
weightier
advocates
consideration,
wine),
becomes
By this
redundant.
is
found
so
because
inherent
therein its
rule
regard to legal maslahah is
is
of
(to avoid the making of
grapes
residence
in
(by
a
conflict
the
them.
weaaker
man
between
Nonetheless,
than
the
and
a
woman)
maslahah
-
and
the maslahah
enormous
mafsadah,
and
prohibition is weightier than its permission,
which
necessitates
could
be
the
With
whether pure or preferable,
to share
or
mafsadah
of
by the Sharlcah.
attested
prohibition of growing
thus
simply because such
As to the cancelled maslahah such as the
apparent.
this
one
division of maslahah which has been mentioned by
every its
is
to
obtained
unmarried
the
blocking of the benefit which
by growing grapes and the companionship couple in the same appartment due to the
expected mafsadah of distilling wine and committing
192
adultery. just
Were it to be admitted that this mafsadah is
suspected one not real and decisive whereas the
a
conflicting maslahah is decisive, would
maslahah
Al-Tufi maslahah.
be
more
appropriated than vice
sets
He
thing
a
versa".11
neglects the divisions and categories of casts
away
all that which has been mentioned
by those who divide maslahah into he
then the attainment of
criterion
new
for
the
a
number of types and
decision of
whether
or
an
action bears maslahah which ought to be
obtained
or
bears
which must
be
expelled
according to the quantity of maslahah
or
mafsadah
therein.
Thus,
bears
injury
no
mafsadah, also
case
bears
no
heavier
any or
with
its maslahah is weightier than its
therein,
the
The same is the
maslahah
the mafsadah
side;
maslahah
But as
or
regards
an
and mafsadah
in
or
a
or
is
thing which
equal proportions its
is to remain in
suspension awaiting the discovery of which probable,
side
its eradication is
action
judgment, according to al-Tufi,
is
among
doing it...
and
things from this angle and this consideration
See
Ibn
Badran
the two
making preference between doing it and
not
11
i.e
anything which is completely harmful and
maslahah than
-
action which is totally beneficial and
its enforcement is obligatory.
compulsory. contains
mafsadah
a
In other words,
al-Dimashqi,
al-Tufi observes actions
Nuzhat al-khatir
416
193
-
i.e
al-catir, vol. 1,
p.
actions
which
is
them
is
enunciated. if
even
ordained
in
their
it
is
obligatory to put into practice
fact
In
favour
or
ijmac is
no
they go against nass and i jmac. Whereas if the
actions
is
the maslahah in
matter how awkward they may appear and even
no
nass
no
or
weightier than their mafsadah, must be put into
practice if
contain pure maslahah
bear
heavier
foresake
total
their
than
them
mafsadah
found
the mafsadah
therein
it is compulsory to
maslahah,
if
even
or
they are ordained by
nass
and
ijmac. As regards the actions in which their maslahah and mafsadah
by al-Tufl till
or
equilibrium in
this
every
aspect
case
are
it
is
found and preferences not
recommended
ijmac simply because those actions
over
nass
conflict
as
-
their judgment will be suspended for
-
probabilities in
and
in
are
and
to
are
go
are
presumed a
while
made;
against
nass
not stronger
ijmac due to the weakness caused by the
between
maslahah
and mafsadah
therein.
Inspite of this criterion by which al-Tufl casts all the divisions of maslahah in his commentary to
away the
book
"Mukhtasar
nonetheless, in his
but
as
of
Ibn Qudamah,
al-Tufl himself mentions this very criterion
commentary to the hadlth "la darar wala dirar" but
in different nusus
al-Rawdah"
and
terms
ijmac
are
-
in which
he
establishes
that
the
applicable to the acts of worship;
regards the judgments of transactions and customs
194
paramount.12
is
maslahah
Then he puts a rule to avoid the
opposition of the masalih by the
mafasid13
there
state
also
there the
doesn't
he
could
in
and mafsadah
maslahah here
there
that
be
a
supposes
equilibrium of
aspect of an action,
every
(see above),
instead, he enunciates and fixes that
judgment should be made by preference and in
Muslim scholars
Most
action which
bears
proportions in the
one
of
are
the
opinion that in
aspect does not exist.
every
case
of
lots.14
and mafsadah
maslahah
an
equal
With regard
example which al-Tufi has given i.e that of the
who misses
clothing for
cover
that,
the covering of his
fact
female
of
his
could
the
but
stop from making a decision as he stopped
suspicion it should be made by drawing
to
of
and
one
it
that
is
a
prayer
except a piece which
private parts, their opinion is front part is paramount due to
particular
one
in which male and
differ.
Moreover,
a
comtempoV"3fy°f
w^°
one °f the
celebrated
Hanball
opinion
the issue in which its maslahah is as equal as
its
on
mafsadah
could
called
scholars
give
more
Ibn
Qayyim whose
light in support of the view
1 O
See
Mustafa
Khallaf, 13
See
cit., 14
op.
Zayd, op.cit., appendix, cit., p. 138
Mustafa p.
Zayd,
op.
cit.,
p.
47;
142
Ibid.
195
p.
43;
and
cAbd al-Wahhab
and cAbd al-Wahhab Khallaf, op.
of
the
majority of the Muslim scholars. He
says:
"As regards the second issue - the one in which its maslahah is equal to its mafsadah - there is difference and dispute as to its existence and ts
judgment;
some people affirmed it while the denied it. The answer to this question is this situation seems unlikely to happen even
others
that
though people are divided upon it. To clerify assertion further, either this issue's existence demands to be practised because of being its maslahah weightier (than its mafsadah) or it is a non-existent one which ought not be practised due to the fact that its mafsadah is this
heavier
than
the
maslahah
inherent
therein.
A
thing is done because of its maslahah and not done due to its mafsadah. However, to get a thing in which its maslahah weighs equal to its mafsadah is a dictum whose existence is hardly to be proved; but proof rather stands against it.
Actually, maslahah and mafsadah, benefit and injury and pleasure and pain, if they are in opposition to each other, one should prevail over the other and the judgment will be in favour of that which prevails. To get a situation in which the two opposing qualities are equal in such a way that one does not prevail over the other is unlikely. The case should be stated either: the two contending qualities are together in existence, which is impossible to occur in a single place; or it should be said that the two qualities are together non-existent - which is also impossible, simply because it is a preference between the two without a qualifier. This impossibilty is a result of a supposition of the contention between the two qualities thrusting back each of them which is an invalid case; thus, one of them should subdue its opponent and take with it the right of
judgment".15
Al-Tufi •
in
every
maintains
ordinance
as
that
God
has
considered maslahah *
implied in the following
"0 mankind! There hath come to you a from your Lord and a healing for the
15
See
Ibn
Qayyim,
Miftah dar al-sacadah, vol.
196
2,
verses:
direction (diseases)
p.
17
in your hearts, and for those who believe, a Guidance and a Mercy. Say: "In the bounty of God and in His Mercy, - in that let them rejoice; that is better than the (wealth) they hoard".16 deduces
He
from
these
two
verses
aspects which
seven
Lawgiver.17
verify the consideration of maslahah by the then
He
the
establishes
Qur'an thoroughly,
evidences
which
if
that
were
to
study the
would be able to find
we
indicate
we
this.
Al-Tufi
His
deeds
mankind's
for
the masalih
and
not
beneficence. His
of
comprehensive,
in
the
is
His
become
objectives
God's consideration for a
necessity and
favour
a
for maslahah
care
Al-Tufi infers from this and
life
well
as
oblivious
of
time
the
at
as
in
their
cared lives.
for
which
for
blood
the
and
the
10:
57,
58
See
details
of
al-tashric al-Islami 19-20;
and
creation,
hereafter,
masalih
in
are
the
in the
and after rules
that
and
imperative to be
part of the maslahah of
their
but those rules and judgments are
security of their material wealth,
their
Qur'an, the
are
only this,
Not
means
their
and
their
of
judgments of the Sharicah, which
17
much
so
extended to all places and situations
creatures
mundane
16
the
that it is impossible for God to consider maslahah
says
the
ultimate
Him. God's
upon
suitable way...
most
the
to
Thus,
creatures
obligation
an
is
for
connected
are
of
many
elaborates
point that the Lawgiver has cared for maslahah that
nusus
and without which their
honour;
these wa
aspects in the appendix of Al-maslahah fi Nairn al-Din al-Tufi, by Mustafa Zayd, pp.
cAbd al-Wahhab Khallaf,
op.
197
cit.,
pp.
112
-
113
existence
whole
without its
earth
is
so,
in
chaos.
it goes
Thus,
If the
it therefore becomes commendable and
exist.18
where they
nusus
although it is inappropriate to subject the
However,
the
be
in the ordinances of the Sharlcah.
obligatory to follow the
maslahah,
to
nusus
will
saying that God has considered maslahah in all
aspects
case
on
elaboration
of
God has left the
some
for ijtihad in
scope
law.
Although this explanation in its general and detailed al-Tufi
goes
evidence
of
reconciliation
al-Tufi and
and
maslahah
in
evidences
See
his
of
with
nass
op.
"If it
and i jmac or any other but if it
evidence of the Sharlcah then
is made
between
them
as
we
over
have
a
mentioned
the other
making it take precedence through the method
the one
the
The
reason
himself
in
for the
this
ambiguity is that
sense
that
he
presumes
impossibility of the Lawgiver neglecting hand,
and
assumes
the conflict of
Sharlcah in the other hand;
judgement
Mustafa
Khallaf, 19
any
contradicts
confirms
bases
surprising thing is that
Sharlcah it's well and good,
clarification.19
of
the
of particularising maslahah
means
evidence
18
agrees
the
with
conflicts
clear,
to say immediately after this:
on
(i.e maslahah)
by
is
nature
on
the
and then
this assumption. Since the
Zayd, op. cit., cit., p. 118
appendix,
Ibid.
198
p.
25;
and
cAbd al-Wahhab
Lawgiver has considered maslahah in creatures'
lives,
al-Tufl
think
to
His
are
it therefore goes against logic for that
dictates)
own
aspect of His
every
the
of
nusus
the
Sharicah
(which
could conflict with maslahah,
especially when he has not given
example of such
one
a
situation.
The
clearer the
when
Qur'an,
maslahah
it
contradictions
is
is
there
with it
ijmac,
expel evils.
evidennces
sound mind
any
the
to
the
Sunnah
Qur'an,
regards
it contains
he
says:
"Since
it has therefore to
masalih)".21
In connection
either to bring about masalih
(ahkam)
This principle is accepted even by those
profess to the fact that ijmac is of
"As
Sharicah";
and
of the
one
in connection with
common
al-Tufl says that every being who possesses a
sense,
rules
of
said:
has
in it except
verse
As
theory become
"All the authentic Muslim scholars
he:
says
or
not
himself
he
(in containing
verify the rules
do
no
masalih".20
or
do
who
that
see
clarification
a
agree with
we
in al-Tufi's
of
knows
for
transactions
sure
that
the
objective behind the
(mucamalat) and customary law in
just law is for the attainment of the benefits of
people;
and there is
Islamic
law,
it is
no
law which is more just than the
therefore,
the
best
of
all
the
laws
n r*
See
Mustafa
al-Wahhab
Zayd,
Khallaf,
cit., appendix, pp. cit., pp. 115 - 116
op.
op.
Ibid.
199
22
-
23; and
cAbd
in
consideration of
the
assertion
the
al-Tufi
of
in
masalih...22
issue where
the
categorically that there is which does
Sunnah
or
evil;
and that
This
no
neither
he
is
the
declares
either in the Qur'an
nass
contain
maslahah
expel
nor
ijmac of the Muslim mujtahids is
supplementary to the nusus.
would
It
that
seem
he
should
regard the Sharicah as
capable of accommodating all types of masalih which no mentioned
has
nass
no
ijmac has approved of.
those masalih should not go against
Nonetheless, ordained
been
which
or
in
the
Sharlcah either
directly
what has
or
indirectly. Above all, those masalih, whatever they might be,
could not be termed fundamental
the
that
as
primary
benefits
have
ones
due to the fact
been
considered
by the
Sharicah and indicated by more than one evidence.
Actually,
those masalih
are
regarded
as
secondary
ones
emerging after the epoch of legislation (cahd al-tashric) and
it
therefore
their
was
necessary
consideration.
annextures
and
Those
to lay down some rules for
masalih
are
regarded
as
supplements to the primary ones and not
opponents of them.
As
himself
22
See
regards the question of an with
Mustafa
Khallaf,
op.
a
band
Zayd, cit., p.
of
op.
Muslim
200
shielding
prisoners of
cit., appendix,
116
enemy
p.
23; and
war
which has
cAbd al-Wahhab
been mentioned which
could
mentioned this
by al-Ghazali
seem
conflict
the
between maslahah band
that to
pass
lives and
few
those
of
the
is
what
we
have
would argue that
between
two
benefits
and
in not
explanation is that when
Its
nass.
of
kept alive and the enemy is left
just to
preserve
the
but when that band is killed
people;
resisted, the maslahah in this
enemy
greater which has lives
lies
the maslahah is
through,
of
the
and
Muslims
of
contradiction
most Muslim scholars
here;
issue
real
a
above)23
(see chapter three
case
to do with the preservation of
entire Muslim Ummah.
doubt,
No
is the
the
preservation of the lives of all the Muslims precedes that
of
a
small
That is why we see al-Ghazali
group.
putting condtions
on
the issue in question showing the
necessity, decisiveness and its primary status which it
makes
deserve
pre-eminence
over
maslahah.24
the other
Suppose al-Tufi claimed that his theory of the
pre-eminence of maslahah Sharlcah and
nass
"la of
darar the
is
23 24
reality particularising
dirar"
wala
consideration
that
a
nass
by another
by maslahah due to the fact that the hadith
not
restricting mean
in
all the evidences of the
over
every
it
is
See
al-Ghazali,
See
al-Khidr,
is of
nass
not
a
maslahah
nass
the
to
in
the
extent
necessity of
which bears injury. This would
maslahah
Al-mustasfa,
Usui
decisive
al-fiqh,
which
vol. p.
391
201
1,
is
pp.
preceding
294-296
nass
but
it
is
another
takes
Muslim scholars would
most
be
could
it
situation
the
in
the
restricts
a
general
one
"la darar wala dirar",
nagg
method
which
used
could
be
derived
issue
results
in
a
restrict
to
nass
order
the
derived
issue,
are
to
in
three
his
which
claims
assertion are
as
special
a
made legal to
on
if
was
it
which of
have
the
follows:
consideration of
is
it
cause
of
a
serve
nass
some
for
existed,
ever
so
by
that
purpose.
been
nusus
let
us
(i)
that the nusus are
maslahah
accordance
no
are
nass,
over
diversely
the cause of difference in
is
a
matter
which
(ii) is
is
that
agreed
diagreement therein,
which
202
discuss
put forward by al-Tufl
precedence of maglafrah
in itself and there is a
nass
necessary
judgments which is detested by the Sharicah...;
upon
The
complete this point in the survey of
opposed to each other and
the
nass
whose application
excluded from this general
relationship between maslahah and the
particularization
other nass
any
causing injury. Whereby it
injuries In
of
particularizing
a
(mas'alat farciyyah)
restrict
special
some
this claim (which
which is quite general and
is before al-Tufl
to
Nonetheless,
and not vice versa.
comprehensive,
him
that
argue
pointed out earlier that it is
was
which
precedence...
adopted to elaborate the theory of al-Tufl)
reverses
as
that
nass
required by the
thus
Sharicah;25 (iii) that it is established in that
is
there
number
conflict
a
between masalih *
*
the Sunnah
and
in
nusus ■
*
a
issues.26
of
Al-Tufi
has
presented the first two arguments
together and deduced from them that the consideration of maslahah
is
of
due
nusus
upon
be
worth
following rather than the application fact
the
to
that
the
is
which
matter
agreed
deserves the right to be followed and commanded to
adopted rather than the
disagreement.
one
on
which there is
Then he put forward as a proof of his
argument some verses of the Qur'an and ahadith.
He also
pointed out the difference of opinions which happened between
the
of
Imams
the
celebrated madhahib
four
and
disagreement between the followers of these madhahib
the
as
a
proof of his argument about the contradiction of the nugu?
and their diversity...
about
nusus
he
claimed
that
ibn
has
nusus
of
mentioned
after
that,
from his
narrators...
pointed out
are
the
al-Khattab
Sunnah
the
here
because
As
an
Possibly, what al-Tufi meant
cause
who
of
Sunnah
difference
particularly,
that in
some
hadlth
people is
cUmar
rejected the idea of compiling the
colleagues
as
reported by
some
regards the third argument,
he has
alleged conflict with miscellaneous
n c
See
cit., 26
See
Mustafa p.
Zayd, op.
cit.,
p.
35; and cAbd al-Wahhab Khallaf,
129
Mustafa
Zayd,
al-Wahhab Khallaf,
cit., appendix, pp. cit., pp. 133 - 134
op.
op.
203
39
-
40; and
cAbd
op.
examples which he considers to be connected with his argument.
Al-Tufi of
reasonable
seems
he
when
demands
opinion in legal judgments. Nevertheles, in
incorrect
his
assertion
that
the
it
do
nusus
agreement seems
contradict
other
in
diversity
difference
of
opinion detested by the Lawgiver; whereas
each
most
Muslim scholars
with
each
the
and
other
benefits
maslahah assumed
would not
be
not
to
this the
is
illegal.
each
other
claim
as
in
harmony
If the nusus
al-Tufi
in
were
claimed, *
•
then
true,
was
it
our
own
were
benefits
of the Sharlcah, and
source
instance
in which
some
nusus
of them declared the
some
In other words all
very
consideration of itself
in
which
tensions.
maslahah
no
nusus,
rendered same
thing
is
not
difference of
which,
as
an
argue
that
agreed upon maxim
opinion is viewed
al-Tufi claims,
are
as
full
They assert that it is the consideration of is
maslahah
which
maslahah
keeps on evolving with changes in environments,
a
a
the nusus do complement each
Secondly, most Muslim scholars would
compared to the of
are
comprehensive enough to accomplish
principal
no
thing legal and
in
nusus
Qur'an.
There
the
the
rid of this contradiction, and if it
get
become
other.
that
see
enough to depend on the consideration of
that
the
to be the cause of
as
required for mankind.
contradiction with would
so
disagreed issue due to the fact that
204
times, peoples and societies. As regards the
places, nusus,
change is found therein to different
no
environments,
places,
The
constant
nusus a
are
a_
standard.
it is true that not all of them have reached the
Prophet, of
not
(narrated by a vast number).
tawatur
Nonetheless, does
and
regards the narrations of the traditions of the
As
status
times, peoples, societies etc...
that
mean
decisive.
Still
the
of
nusus
formulate
Muslim scholars would argue that
most
most
restricting
traditions
the
Qur'an and Sunnah in their verified
totality do not
homogenous
corpus
general nass by a special one
a
not
are
they would not admit to speculate that
decisive
a
of
this
after
-
(takhsis
al-camm) and clarifying the aggregate whole (bayan al-mujmal). evidences
other
as
criterion the
worship within the
nusus
which
seem
to
conflict with
of
their
multiplicity,
Sunnah.27 be
Mustafa
Zayd,
the
of
maslahah.
rules
•«
■-
of
As
from
nusus
205
al-Tufi •
talks
about
customary law and
cit. appendix, pp. cit., pp. 138 - 141
op.
op.
nusus
The seemingly conflicting
he again puts a measure
al-Wahhab Khallaf,
each
brought into accord without reference
consideration of
the
lays down a
bing accord between the different
to
evidences
See
of
rules
result
transactions,
27
acts
therefore
the
the
a
the
when talking about
of
the
Qur'an and
could to
for
of
context
Even al-Tufi himself,
to which the
43
-
46; and
cAbd
masalih and
mafasid
the
brought into adjudgment if
are
they seem to conflict with each other so that their
ever
tensions
are
avoided.28 al-Tufl
Furthermore,
is not satisfied with the
general reconciliation of the nusus and maslahah but he shows to
the
of
maslahah
Is
it therefore
weakness
lots.29
drawing
this
that
law,
is stronger
maslahah,
as
*
a
he
as
»
is
forced
proper
resort
to
to say after
device of legislation in Islamic
Al-Tufl has insisted in his
than nass?
theory on the decisiveness of the consideration of maslaftah in his verification of various evidences which he
put forward in clarifying the care of the Lawgiver for
maslahah.
At
the
mutawatir
sarih
same
time
he
categorised
nass
into:
(i)
(a clear cut narration from a vast
O Q
The some
scholars
of which
Al-mustasfa
of
have
which
usul
al-fiqh
use
been mentioned
could be
a
number of
by al-Ghazali
summarised
a
s
canons
in this
issue
in his book
follows:"..if
it
is
possible to accord together the two contending nusus it's well and good, but if it becomes difficult and the date of enactment of each nass is known, then the last to be enacted abrogates the first one, in
but will
case
another
nass
date is not known then verification by those nusus judgment is sought from other nass [or evidence]. If
the
fall and
[or evidence]
is not
found then the mujtahid
is at
liberty to choose one out of the two. [Al-Ghazali, Al-mustasfa, vol. 2, pp. 392 - 394]. He has also mentioned how one nass could be preferred from the other in seventeen ways which are connected with sanad [chain of narrators], matn [text] and five ways which are connected with other issues. See the details in vol. 2, pp. 395 - 398 of Al-mustasfa. We should not forget also that the conflict of nusus is just a mere surface perception only as far as our comprehension and knowledge are concerned and not in reality as we have mentioned above. See al-Shatibi, Al-muwafaqat, vol. 4, p. 63; Qur'an, 4:32 and Usui al-tashric al-Islaml, p. 273 29
You
will
"Al-maslahah
find fi
this in four places of p. 47 of the appendix of al-tashric al-Islami wa Nairn al-Din al-Tufi" by
Mu§£afa Zayd; and cAbd al-Wahhab Khallaf, op. cit.,
206
p.
142
(ii) mutawatir muhtamal
number), a
(iii) ahad sarIh (a clear cut isolated
number),
vast
narration) and (iv)
ahad muhtamal
(a dubious
to
be
undecisive
as
he
puts it in his own expression,
in
its
has
the mutawatir
even
generality is
isolated
Then he judges all these categories of nass
narration).
It
narration fom
(a dubious
simply because,
"it might be dubious
unrestrictness...30
or
obvious
sarlh
that
presented between
the
differentiation which
al-Tufl
and the consideration of
nass
maslafrah is not equitable and just due to the fact that if
the
evidennces
establish decisive
the
which
he
has
consideration
applied to confirm and
of
maslahah
in general
that they
are
same
is true with the
decisive and
origins of the Sharlcah and the strongest any
are
enough to make it one of the devices of
legislation in Islamic law, the nusus
in general
need of proof
verification.
or
of the
one
source
without
If al-Tufi intends to
give the quality of decisiveness to
every
secondary
ma?lahah just because it is in the realm of masalih which have
received
therefore
be
decisiveness
the more
to
care
of
the
Lawgiver,
appropriate to attribute the quality of
every
nass
in
every
secondary issue
simply because it is in the realm of the Sharlcah.
3^
See
Al-Tufi's
Mustafa
Khallaf,
op.
Zayd,
cit.,
p.
it would
nusus
consideration of maslahah
op.
cit., appendix,
123
207
p.
30; and
of the as
a
whole
cAbd al-Wahhab
only decisive device of the Sharlcah and then
to
be
the
to
judging all the
differentiation. the
to be undecisive is
nusus
follows
It
therefore
a
his
that
vacuous
theory of
pre-eminence of the consideration of maslahah which is based
nusug
The
correct.
both
that
this differentiation is not
on
right attitude towards this issue should be
the
proofs
-
i.e the
consideration of maslahah
are
-
and the
nusus
decisive
Sharlcah.
They both consist of juz'iyyat
which
either
are
over
qatciyyah (decisive)
(speculative); and
devices
of
the
(partial cases) zanniyyah
or
do the rest of the evidences of the
so
Sharlcah.
Al-TufI other the
so
has
Lawgiver.
between due
to
the the
in
result
to
as
judged the
nusus
the
laws
to contradict each which
abhored
are
by
The question of the difference of opinion
Imams
of
the
Islamic
schools
of
apparent meanings of the nusus
jurisprudence
is not
an
astonishing feature, but the truth is that he does'nt sight
even
a
single instance in which such
shows
that
these
Imams
do
not
agree
a
difference
to the fact
that the
Lawgiver has cared for the masalih of mankind in His commandments
concerning either acts of worship
obligations. But were
of
as
we
or
social
have seen in chapter three when we
discussing the position of the Imams of the schools
jurisprudence in relation to the theory of al-masalih
al-mursalah, maslahah
that
should
they all
agree
to the point that
duly be considered in
208
every
judgment and
is
of
one
(i)
neither is
there
devices
the
nass
need
of
i jmac
nor
and
the
of
qiyas is found, and
nor
necessity (darurah)
maglahah to the exclusion of
It
Sharicah in matters where:
(ii)
to consider
and ijmac.
na?s
without saying therefore that the difference
goes
opinion between the Imams has not been caused by the
preference of the apparent meanings of the nusus over the consideration of maslahah, of
levels well
as
knowledge and understanding of the
the
it
reason
is
not
Al-Tufi between
the
neither
a
acts
this
For
in
the
application of
worship and mucamalat
of
by establishing that the acts of worship
right of the Lawgiver the
as
mujtahid.
differentiated
the
time
nor
(God)
as
such in which
place and methodology are known
except from Him only;
thus it is obligatory to take
evidences
of
asserted
then
and
conflict
rules that
31
See
Zayd,
of
and
cAbd op.
the
acts
that
in
the
such
a
worship from the
nugus
way
are
in
a
nusus.31
state of
seems
al-Wahhab
cit.,
to
that they cause difference in
contradict
Khailaf,
appendix,
pp.
He
opposition
judgments. Most Muslim scholars would
al-Tufl
the
to blame the nusus for the
proper
has
(transactions) are
nusus
degree of ijtihad and observation.
misinterpretation of
nusus
but by the difference of
op.
21,
cit., 46
209
himself
pp.
114,
in
that
argue he
140; and Mustafa
proclaims the evidences he
of
to be the main source for
nusus the
judges these
of
acts
worship while at the
same
time
to be in conflict with each
nusus
very
the
other
in
Their
argument is based on the fact that it is illogical
to
and
rules
judgments for social obligations.
accept something to be right in one place and at the time
same
him
for
in
the
the
to
take
acts
of
source
for
rather
to
other
wrong the
in another place.
nusus
evidences
so
their
of
It was necessary
contradicting to each other
as
worship too and
the
not to make them the and
rules
judgments;
or
accept these nusus as not conflicting with each and
all
at
social
be
to
base
obligations
as
them the laws concerning
upon
is the
case
with the rules
concerning acts of worship. This with
the
is
the
nugus
discussed
its
acts
of
went
further
stand-point of al-Tufl in connection well
as
with the ijmac when he
as
evidences
in
relation
to
the
of
rules
the
worship and the laws of social obligations. He
invalidated
refute
to
it
in
such
every
evidence of ijmac and
a
that at the end of his
way
analysis the whole banch of its evidences became demolished, all
this
is
it,
because
saying: not we
nonetheless,
darar
wala
slander
do speak of
our
consideration "la
to
"Be informed that our intention from
of
ijmac and to totally demolish it in the acts of worship,
intention is maslahah »
(jirar"
«
to
which
clarify that the is
based
on
the
hadith •
is stronger than ijmac due to the
210
fact
that
base
as
is
apparent in
concluded
is
base
than the latter's
in its proof and from what could be
refutation of
our
stronger
the
evidences
of
ijmac".32
ijmac by raising various objections to its
weakens
He
former's
the
evidences
so
evidences
which he
Then
this unfounded hypothesis, al-Tufi bases
upon
rules
and
that
the
This
has
put forward becomes very strong.
is
not
in the acts of worship simply because
rejected there.
leads
to
the
question:
supposed that there is maslahah?
some
judgments in which he considers it to be the
strongest evidence maslahah
strength of maslahah and its
Most
Muslim
a
"Why should it be
conflict between ijmac and would
scholars
argue
that such a
supposition is merely theoretical simply because nothing has
been
presented
situation occured. conflict
between
as
actual instances in which such a
They would also argue that even if a
ijmac and maslahah occured in
some
questions another ijmac would have been made which would take
into
conflict in
the
consideration with
the
that
maslahah
previous ijmac.
which
seems
In reality it
to
is only
opinion of al-Tufi in which ijmac is restricted to
water-tight compartments, whereas most Muslim scholars
32
Thus,
_
—
the expression of al-Tufi as he raises an objection on his claim that the consideration of maslahah is stronger than ijmac, while he maintained that his objection is only to point out the strength of maslahah and not to revile ijmac and totally demolish it... See cAbd al-Wahhab Khallaf, op. cit., p. Ill; and Mustafa Zayd, op. cit., appendix, p. 18 goes
211
of
are
opinion that ijmac has
the
capacity to
a
accommodate
within
its
scope
environment
and
any
period due to the fact that there
be
can
on
a
consensus
death
of
the
incorrect
of
the
judgment at
legal
a
at
to
maslahah in any
mujtahids of the Islamic Ummah
particular time after the
any
Prophet.33
It follows therefore that
think
there
and
and maslahah
any
that
base
is
this
on
a
conflict
thought
between
More
that
of
the
astonishing is the
maslahah
is
argue
that
source
of
the
that
be
the
the
consideration
legislation.
of
maslahah
proof to
a
is
an
agreed
It is as if those who reject ijmac
only ones from whom opposition is feared most and attainment
of
their
consent
different
from
each
other.
will
cast
away
every
In reality the two issues In
other
it would
words,
accepted from al-Tufl that the Shicites,
the
Kharijites and the Nazzam (among the Muctazilites) who
33
See
of
those who
even
ijmac is not
type of opposition therein... are
source
that the al-Tufi's dependence on the
agreement of those who reject
are
agreed
an
ijmac accept its validity. Most Muslim scholars
oppose
show
all the
in which al-Tufl claims
case
legislation in Islamic law saying that
would
over
Sharicah.
consideration of
the
ijmac
opinion of the
an
precedence of the consideration of maslahah evidences
it is
cAli Hasab-Allah,
Usui
al-tashric al-Islami,
212
p.
51
reject the ijmac, do accept and consideration of maslahah. also
is
maslahah
that
an
It
would
item of
upon
be
It
of
one
seems
basis
agreement before most of
recognised devices of Sharlcah.
the
and ijmac.
which
there
applied,
a
is
Wherever neither
for
a
act as an independent
can
a
secondary maslahah is found in
nass
If
certain
mujtahids have made
ijmac
nor
nor
a
the
attain maslahah♦
thing
or
issue,
hukm
could
be
even
if
goes
and
due
it to
the
the Muslim it is
is liable to
that there existed another
than the one enunciated by the Lawgiver
envisaged by the seemed
an
it could sometimes happen,
Nonetheless,
maslafrah stronger
or
in its favour,
consensus
through need and necessity,
two
qiyas could be
Lawgiver has provided
primarily presumed that this hukm (law)
these
It also seems
rule should be exercised for its attainment
its maintenance.
ordinance
as
which laws could be based in the absence of
upon
na?s
so
accepted from him
appropriate to consider maslahah
more
apropriate that this device
or
the
Muslim scholars.
the
and
agree
to
of the Muslim mujtahids and
consensus contradict
enacted
to
attain
against the
submission
each
nass
and
the
other.
In
this
case
stronger maslahah
and ijmac, and that is
accommodation
of
that
need
necessity only. A typical example is the decision of
cUmar
ibn
al-Khattab
(the second caliph of
Islam)
amputate the hand of a thief in the year of famine
213
not to
cam
a
al-majacah,34 this
In
verdict
Malik,
of
connection,
Yahya ibn Yahya al-Laythi, a student of Imam
to one of
ibn al-Hakam,
which
month
of
wife.
Afterwards
sin
the
text
the kings of al-Andalus,
cAbd al-Rahman
have previously mentioned
we
in
The king intentionally broke his fast in the
chapter two.
his
it is useful to reproduce the
Ramadan
by having he
felt
by emancipating of
a
and wanted to expiate for
sorry a
But Yahya went against
slave.
hadith which
the
sexual contact with his
necessitates
the
remedy in
descending order, starting with the emancipation of
a
slave,
or
the
ending
up
with the feeding of sixty indigent people;
instead
of
fast
the
this
issue:
person
not
consecutive months "To
only. Al-Tufi said in
particularise fasting to
an
for the remedy of Ramadan is not far as
a
affluent
(from the
result of diligence of a mujtahid.
type of enacting laws by a sheer opinion,
a
either of
fasting of two consecutive months and
following this order Yahya obliged the king to
two
right path)
a
a
kind
of
restricting
a
diligence to look for maslahah
It
is
but it is or
a
type
general feature deduced from the
discarding of the details envisaged in the hadith of
al-Acrabi35
34
See
which
Muhammad
IS
a
general one and weak.
cAbd al-cAziz al-Hillawi,
b.
al-mu'minln cUmar
is
b.
al-Khattab", _
p.
—
Reported by al-Bukhari and Muslim
214
164
"Fatawa
Thus,
wa
the
Ugdiyat Amir
exercise
whole
beneficial
use
is
being particularised by the suitable
of
reason
(al-ijtihad al-maslahi
al-munasib). The particularisation of the generality is
praiseworthy method.
Muslim
Most
the
hadith
not
a
weak
al-Bukhari
but
one
be
and
the
beneficial
argue
which
-
Hadith.
of
use
of
is
the
■
in
so
many
a
places".36
that first of all
reason
is
■
emancipation of
highest category of
if the objective of
Secondly,
confirm
to
then maslahah in this
maslahah,
poor
of those
one
would
the
strong one being reported by
a
and Muslim
divisions
■
scholars
rich
al-AcrabI which al-Tufi has mentioned is
of
the
of
the
let this therefore,
place,
the Sharicah has
In actual fact,
differentiated between
a
issue
JL
is found in the
slave due to the fact that
a
attainment
the
member of
a
society is granted his liberty whose skills and knowledge in
the
building of
benefit
entire
the
to
a
better Ummah will be of great
community.
Whereas the remedy of
fasting the two consecutive months remains
terrifying agent for such
an
still that
of
no
affluent
fear
consecutive
1
See
417,
as
attained after
maslahah
the an
is
effect
in
individual
an
Ramadan may to
only.
Even if
here
due
to
the
not be able to fast the two
expiate for his sin since he has
~
___
_
al-Dimashqi, Nuzhat al-khatir al-°atir, vol. quoted from Sharh Mukhtasar al-rawdah
Ibn
Badran
fact
who performs sexual relations out
person
months
a
fasting the two months,
immaterial
seems
person
as
215
1,
p.
not
been able
emancipation of his
heart
breaks
the
for
be
to
a
patient in
slave,
in Ramadan, •
month only.
But in the
trace of fear will be found in
a
by liberating
fast
one
*
a
slave for each day he
he would be
wealth.
216
reduced
in
Chapter 7 STUDIES
MODERN
DEFINITIONS
AND
ON
THE
CONCEPT
OF
MASLAHAH •
modern
In
times
the
•
concept of maslahah has
undergone still further formulations. social
With the great
changes affecting all departments of life
utilitarian
philosophies became popular. The movement of
in
modernism
Islam
searched
in
Islamic
tradition
for
a
principle that would help them grapple with the changing conditions.
They found in maslahah such
concept.
a
Naturally therefore more attention has been given to the
study of this concept in modern times than
1857
In
Tunisian
law,
fundamental
"the
first
cAhd al-Aman,
the was
"God
document of
This document
issued.
reforms
later
became
in the
legal instrument in the 1860 constitution constitution
country in modern referred
a
before.
ever
to
as
times.1
the
be
to
issued
in
any
In its preamble,
-
Muslim
maslahah was
principle of interpretation of law:
has
given justice as a guarantee of the preservation of order in this world, and has given the revelation of law in accordance with human The
document
principles
1
Albert
[London: 2
See
as
Hourani,
Oxford,
Muhammad
Hourani,
op.
(masalih).2
interests then
expounded the following three
the components of the concept of maslahah:
Arabic
1962],
Bayram,
cit.,
p.
thought p.
in the liberal
age,
1798-1939,
65
Safwat 64
al-ictibar, vol. 2.
217
p.
11,
vide
liberty, security and 1867
In
al-masalik,
equality.3
Khayr al-Din Pashah,
in his Aqwam
reaffirmed that the principle of maslahah
government.4
must
be
this
principle extremely significant
to
the
justify
the
guide of the
as
He found
it could be used
change of institutions in the interest of
a
public
public
supreme
as
well as to condemn a change when it opposed
interest.5
In
in his speech of the
1899,
reforms in the court
systems in Egypt and the Sudan, Muhammad cAbduh also stressed law
the
use
making.6
maslahah
as
application of Islamic is
It
to
cAbduh both
guiding principle in
a
Schacht has argued that the principle of
J.
according to cAbduh,
maslahah, literal
of
be
noted
refered
to
interpretation of law
that
law.7
Khayr al-Din and Muhammad
maslahah -
preferable to the
was
as
principle of
a
and as such
a
principle of
change, dynamism and adaptability.
The
3
4 6 6
Muhammad
theme,
Bayram,
Ibid.,
p.
92
Ibid.,
p.
93
op.
in varying versions,
cit.,
vol.
2,
p.
has been
11
cAbduh, Taqrir Mufti al-diyar al-Misriyyah fi islah al-sharciyyah, [Al-manar] vol. 2 {1899}, p. 761
Mufti Muhammad
al-mahakim 7
same
See
Islam,
Schacht,
[Leiden:
Muhammad
Brill,
cAbduh, 1961],
p.
in The Shorter Encyclopaedia of
406
218
repeated by Islamic
large number of modern Muslim scholars of
a
law.
Among them the following are notable
illusrations:
Rashid
Rida, •
'
Subhi Mahmasani,' •
•
•
cAbd
al-Razzaq al-Sanhuri, Macruf al-Dawalibi, Mustafa al-Shalabi,
cAbd al-Wahhab Khallaf, Muhammad al-Khidr and
Zayd.8
Mustafa
In
1906,
al-Manar
journal of Islamic knowledge
published Najm al-Din al-Tufi's treatise
on
maslahah.
However,
the application of
raised
strong reaction among the conservative group of
a
in
scholars
Egypt.
the radical views of al-Tufi
Only to illustrate this opposition,
we
quote Zahid al-Kawthari's criticism of al-Tufi as follows: "One of their spurious methods in attempting to change the sharc in accordance with their desires is to state that 'the basic principle of legislation in such matters as relating to transactions among men is the principle of maslahah; if the text opposes this maslahah, then the
g
text
should
be
abandoned,
and maslahah should
The
following works by the authors enumerated below stress the dynamism of maslahah as a principle of interpretation of islamic law^ Rashid Rida, Yusr al-Islam, [Cairo: Nahdah, 1956], pp. 72 - 75; Subhi Mahmasani, Falsafat al-tashric fi al-Islam, transl. by F. J. Ziyadah [Leiden: Brill, 1961], {Arabic Ed. Bayrut, 1952}, pp. 130 - 133, 205f; cAbd al-Razzaq al-Sanhuri, Wujub tangih al-qanun al-madani al-Misri, in "Majallat al-qanun wa al-iqtisad", vol. 6 [196] 3 - 144 op. cit.}; Macruf Dawalibi, Al-madkhal ila —ilm usul [Bayrut: Dar al-cilm li al-malayin, 1965] pp. 442 - 450; Mus¬ tafa al-Shalabi, Taclil al-ahkam, —ard wa tahlil li tarigat al-taclil
{vide
Kerr,
al-fiqh wa
tatawwuratiha fI
cusur al-ijtihad
wa
al-taqlid,
[Cairo:
al-Azhar,
cAbd al-Wahhab Khallaf, Masadir al-tashric al-Islami fi ra la nass fTh, [Cairo: Dar al-kutub al-cArabi, 1955], pp. 70 - 122; Mustafa Zayd, Al-maslahah fi al-tashric al-Islami wa Najm al-Din al-TufI, [Cairo: Dar al-fikr al-cArabi, 1954]; Muhammad al-Khidr, Usui al-fiqh, {Cairo: Mustafa Muhammad, 1933} 1949],
pp.
278
-
384;
219
be
followed'.
What
statements, and construction of
evil
an
to
utter
such
it a basis for the a new sharc? This is nothing but an attempt to violate divine law (al-sharc al-Ilahl) in order to permit in the name of maslahah what the sharc has forbidden. Ask this libertine (al-fajir) what is this maslahah on which you want to construct your law?... The first person to open this gate of evil... was Najm al-Dln al-Tufi al-Hanbali... No Muslim has uttered
ever
to make
such
statement...
a
This
is
a
naked
Whoever listens to such talk, he partakes nothing of knowledge or religion".9
heresy. of
Al-Kawthari took
into
did
not
consideration
deny the fact that the sharc the
interests
and
that what is good and what is
people,
but he insisted
bad
only be known through revelation.
can
on
good of the
Maslahah as an
independent principle for the interpretation of law has, therefore,
no
validity whatsoever.
Al-Kawthari1s the
traditional
criticism of
view of
the
concept.
arbitrary and merely personal. arbitrariness
violation
of
Divine
law
the
typical of
Infact, this fear of on
the basis of
and hence considered to be is
familiar
a
history of the Islamic legal theory. similar
is
To him maslahah is
concerning the reasoning
regard for human interests, the
maslahah
feature
in
the
Maslahah and
legal principles which were employed in favour of
adaptability of Islamic law,
were
opposed on the same
grounds.
9
Zahid
1372
-T
al-Kawthari,
A.H]
as
Maqalat
—
ai-Kawthari,
quoted by Mustafa Zayd,
220
op.
[Posthumous Publication in
cit.,
pp.
164-66
Recent
studies
into two groups. al-maslahah
First,
al-maslahah for
istislah
al-maslahah
generally divided
is
second,
those
The focus in the first
maslahah proper but on
on
al-mursalah,
them
be
istislah and,
such.
as
of studies is not
group
can
there are studies dealing with
al-mursalah and
dealing with maslahah
that
maslahah
on
yet it is significant to note in
no
way
different from
al-mursalah.
Ignaz Goldziher compared istislah with istihsan
saying that the latter is which the
decision
a
which
discretion
other
hand,
removes
human
the
He
resembles well
as
the
revoves
of
an
depends
by analogy
can
is
beneficial.
a
opposes That
is
certain
a to
say
rigidity of law depending
individual on
be dismissed when
jurist.
Istislah,
upon on
the
it
rather objective method;
rigidity of law in consideration of general
"interests"
defined.
10
believes
he
istihsan
that
as
Hanafi principle according to
legislator finds that this decision
matter
the
reached
a
also
the
(masalih)
which
are
sufficiently
suggets that istislah partially
Roman
Rabbinic
legal principle of utilitum publicum
law".10
istishab in der Muhammedanischen Zeitschrift fur die Kunde des Morqenlandes, vol. 1 [1887], pp. 128 - 236; vide summary in French by G. H. Bousquet, in Arabica, VII [1960], pp. 12 - 15. The points of I.
Goldziher,
Das
prinzip des
gesetzwissenschaft, Wiener
resemblance with Roman
and
Rabbinic law
probably Goldziher refers to certain to the strict application of law
221
are
areas
not
elaborated
but
most
of flexibility in contrast
in
istislah
Bousquet
Aghnides and G. H.
P.
N.
the
same
sense.
also refer to
Aghnides defines it
principle that consists in recommending it
serves
evidence
useful
a
in
purpose,
revealed
the
a
as
a
thing because
although there is no express
sources
to
action.11 Bousquet's definition is
support such
follows:
as
"Istislah consists of discarding by exceptional disposition the rules deduced by qiyas in cases where the application of general rules would lead to illogical, unjust and undesirable resulsts".12
Joseph Schacht's treatment of maslahah is not much different istislah of
from as
a
istihsan
came
istislah
used
is
the
istislah.13
identical
Paret
istihsan, it
11
but
N.
P.
p.
or
described
rather a type
with
also
the
legal principles of
Roman
characterises
finds
former
the
re-emphasises that
Schacht
istislah
is
more
to
jus
honorarium.14
connected
be
with
limited and definite
Aghnides, Mohammedan Theories of Finance, 102
1^
G.H.Bousquet, 1947], p. 37 J.
Schacht,
Clarendon, 14
He
as
replaces a general principle such as "finding good",
1916],
12
writers.
by early Malik! scholars and which later
utilitum publicum which
R.
above
special form of analogy,
called
be
to
of
that
J.
Droit Musulman, [Alger: Maison
The Origins of Muhammadan Jurisprudence,
1959],
Schacht,
Precis ds
[London: Longman,
p.
du Livre,
[Oxford:
Ill
"Classicisme,
traditionalisme,
et
ankylose dans la loi
religieuse de 1' Islam"in Classicisme et declin culturel dan 1'histoire
de
1'Islam,
[ed]
Brunschvig et als,
222
[Paris: 1957],
p.
158
by
rather specific principle,
a
of
demand
the material
of
method
"according to the
Maslahah thus is
(maslahah)".
principle underlying istislah which is
reasoning.
a
In actual details where Paret traces
history of istislah, he specifically refers to
the
al-maslahah
This
is
al-mursalah,
than maslahah
rather
such.
as
why he finds nothing of much importance after
al-Ghazall to
welfare
human
such as
usul
theorized
had
are
confined
to
istislah.
about the
discussions
His of
references
al-maslahah
al-mursalah.15
Analysing the treatment of maslahah by modern Muslim scholars
such
criticised He
as
their
Muhammad •
use
argued that such
justified; been
an
*
maslahah
a
utilitarian
interpretation of maslahah
principle,
guide in the
a
reasoning by analogy rather than
Grunebaum,
Von
in
HouranI
A.
not
was
a
process
interest)
is unmistakably one point at which human
concluded that
permitted to impinge
istislah
on
(public
traditional
or
systematic considerations that would normally be viewed
15
Rudi
Islam,
Paret, p.
Albert
1stihsan and
Istislah,
185 HouranI,
op.
16
in his study of the concept of reason
ethics,
is
of
substitute for it".
in Muslim
"reason"
sense.
"for the traditional thought, maslahah had
subordinate
a
of
cAbduh and others,
cit.,
p.
234
223
in Shorter Encyclopaedia of
development.17
determining factors of sharc
the
as
Although all of the above opinions agree in
regarding maslahah and
that
needs,
as
a
principle that
yet according to the same writers, to
exceptional
cases
special form of analogy. The view of
in
maslahah
reason
studies
these
its function is
to the use of a
or
is
studied only al-maslahah al-mursalah
for such that
a
limited
they have
to the exclusion of
aspects of maslahah.
There
are,
however,
a
few studies which evince
integral approach to the problem of maslahah Among such studies, our
rigidity
suggests adaptability to changes based on human
restricted
other
removes
concept.
al-Buti
have
theory. E.
M.
such.
as
the following four are relevant to
point. G. F. HouranI has examined maslahah
ethical
an
H.
as
an
Kerr and Muhammad Sacid Ramadan
analyzed it in particular reference to legal
Tyan has studied it as a principle of
methodology.
Tyan describes maslahah as "social "to
utility" and "good", and has defined istislah
recognize
a
rule as
conceptions of istislah. 17
G.
E.
Ethics,
"general interest",
Von
Grunebaum,
Oriens,
vol.
15,
useful".18
He distinguishes two
In the original conception of
Concept
[1962],
and Function of Reason p.
1 ft °
in Islamic
15
E. Tyan, Methodoloqie et Sources du Droit en Islam, Islamica", vol. 10, [1959], p. 97
224
as
"Studia
istislah,
interests
the
(masalih)
were
divided into three
categories according to its recognition by the law, last
category being al-masalih al-mursalah.
the
The directing
principles in this kind of research consisted essentially in
considering the elements of social utility (maslahah)
and
of
suitability (munasabah). The speculation according
to
this
conception of istislah remains within the limits
of
law.
The
other
conception of istislah is
more
extensive.19 According to this conception of istislah it can
be
not
regulated by the precise texts of law,
employed not only in relation to matters which
those matters
regulations, over
which so
have
been
subjected to such
precise rules
or
over
conflicting
or
reasoning)
conformity with the objections of law, the
above-mentioned
contradicting
in the final analysis,
(the rules derived from this method of
with
but also in
that it be legitimate to make it prevail
regulations, provided that,
in
are
five
they
remain
i.e they accord
major interests viz.
religion, physical integrity, descendance, patrimony and mental
faculty.20
Tyan,
thus,
concluded that
istislah is
a
method of
interpreting the already existing rules by disengaging
19
20
E.
Tyan,
op.
cit.,
vol.
10,
p.
97
Ibid.
225
the
spirits of these rules from the letter;
and
extensions
and
correspond to the fundamental goals of the
G.
reached
are
Hourani
F.
which
command
studied maslahah
has
exceptions
practial utility
as
an
law.21 ethical
in medieval Islam, but his study bears
concept
significant connection with the present conception of
maslahah.22
in medieval
value
that
the
value are
observes
He
value
rational
that
existence;
real
theories
two
were
of objectivism, the
of
i.e
second theory of
subjectivism,
that the values
by the will of God. The theory of expounded by Muctazilah;
was
good
there
one,
theistic
of
determined
objectivism
Islam:
has
that
was
that
the idea of
called by them hasan or maslahah. The
was
theory of theistic subjectivism was maintained by the Ashcaris.
The
position of these two theories manifested
itself
the
field of
in
fiqh also. Jurists in the early
period used certain methods which did not correspond with "theistic
subjectivism". Principles such
istislah
tended
ethical
basis
of
these
unarticulated.
The
[that there
an
interest
21 9 9
See See
E. G.
is
F.
Muslim World,
op. —
Hourani,
vol.
and a real
L,
p.
justice
a
real public
(cadl), and that
98
"Two Theories
[1960],
remained
theory of rational good
objective good including
cit., -r
"objectivism". The
principles, however,
Muctazill
(maslahah)
Tyan,
towards
rather
istihsan and
as
pp.
of Value
269-278
226
in
Medieval
Islam",
they could be recognized by human reason]
provided
could have
basis to support the above principles. But the
a
theory of objectivism was superseded by theistic
subjectivism. Why? Hourani suggests that, apart from religious and political factors that prevented objectivism from being adopted by the lawyers, Muctazili First
it
Second, means
the
theory of objectivism had its own deficiencies. could
it
not
show
could not
how moral
judgment operates.
fill up the theoretical gap between
(moral and legal acts)
and the end
(the eternal
happiness, which is the happiness in the world and hereafter
On
for
the
Muslims).
other
hand,
the
theory of theistic
subjectivism corresponded with ShaficI and Zahiri views on
legal reasoning, which opposed the use of ra'y and any
judgment independent of the revelation. the
objetive value of idle fancy,
zann
Shaficis denied and hawa.
Theologically also the theory of objectivism appeared to curtail
the
omnipotence and omniscience of God, which the
theory of theistic subjectivism promoted.
Hourani's confined Because
to
of
study of maslahah,
the
this
consideration
choronologically,
early period of Islamic tradition. limitation
the
he
could
not
take
into
development in the treatment of
maglahah by later usuliyyln such as al-Shatibi. Hourani's
is
criticism of
In fact,
objectivism is mainly ethical. The
227
deficiencies
three
objective value of
maslahah
al-Buti
as
that
are a
maslahah
to
an
legal value. Muhammad Sacid Ramadan
Dawabit
al-Sharicah al-Islamiyyah at al-Azhar
f1
In his introduction to the published
University in 1965.
dissertation al-Buti
edition of
this
critics
Islam
of
as
found in al-Shatibi's conception
presented his doctoral dissertation,
al-maslahah
it.
not
ascribed
he
have
adopted
a
explains that the
new measure
to destroy
They are urging the Muslims to open the gate of
ijtihad, and in order to accomplish this end they refer to
the
of
Sharicah.
concept of maslahah as the fundamental principle
behind
this
Islam.
He
closed
and
to
the
is,
He
admits that
that
the
the
gate of ijtihad has never been
Lawgiver has given full consideration
principle of maslahah, but this principle has
a
detailed
maslahah,
a
number of
the qualifications
compares
this concept with the
concept of "utility" and "pleasure" Stuart
in
its
23
M.
S.
Mill
and
unqualified
R.
al-Buti,
al-Islamiyyah,
which the
jurists had suggested in the application of
principle. He also
of
qualifications.23
analysis of the etymology and concept of
he deduces
traditional this
real motive
proposal for ijtihad is the destruction of
always been restricted with After
convinced that
however,
J.
Bentham.
sense
He
in the philosophies
concludes
that
maslahah
is identical with the above
Dawabit al-maslahah
[Dimashq: Umawiyyah,
228
fT al-Sharicah
1966/67],
pp.
12
-
14
concepts which he considers
purely hedonistic. The
as
qualified concept of maslahah, however, contradistinguishes itself from utility and pleasure it
into
takes
consideration
characteristcs.
the
following three
it is not limited in this world
First,
only but equally includes the hereafter. Islamic
Second,
value
of
good is not material.
consideration
of
religion dominates other
considerations.24 other
qualifications
maslahah
Muslims
the
is
alone
criterion,
after
He
then
from
has
an
Third,
the
if
that
these
as
a
light post and
ijtihad such
as
a
that will descend upon
[To prove such terrifying results
brings the laws of Sharlcah out of the
that
fortress
of
into
texts
the
open,
exposed to desires and
arbitrary opinions that deceive (us) behind the and
maslahah
If
al-Buti's
becomes
consideration
of
name
manfacah.25
qualifications
expositions of maslahah and its
are
accepted, maslahah,
superfluous
as
of
by the Sharic
maslahah
a
as
a
matter of
legal concept.
The
(Lawgiver),
then
only means that maslahah is what the Sharic commands.
24 25
and
opening the gate of ijtihad it suffices to observe
evil
fact,
the
disregarded and the term
up
sides.
all
concluded
thus
are
held
as
Al-Butl, Ibid.,
p.
op.
cit.,
pp.
23
-
60
414
229
In
other
is
the
logical conclusion from al-Butl's view of
Islamic
law
according to which he rejects
between
this
This
words,
world
maslahah has
and
the
no
objective value.
hereafter.
He
a
distinction
does
not
mucamalat (transactions) from cibadat (acts of
separate
worship) but rather considers the former part of the latter.
He
does
ftuquq al-cibad. of
that
is
in
not
distinguish between huquq Allah and his conception of Islamic law is
In fact,
tacabbud
(mere obedience).
disagreement
even
concept of maslahah in
On all
these points he
with the jurists who employ the reference to human needs.
His
disagreement becomes particularly evident if his conclusions
are
compared with al-Shatibi's conception of
maslahah. ■
■
Al-Buti
has
dissertation, often out
out
the
of
but the
real
frequently referred to al-Shatibi in his these
references
context.
selective and
are
Al-Buti's
study fails to bring
significance of the concept of maslahah
mainly because he has not given full consideration to the proponents of this concept such as al-Shatibi.
The
same
maslahah,
deficiency is found in M.
which also offers
a
Kerr's study of
detailed analysis of
the
concept.
Examining Rashid Rida's legal doctrines, Kerr
observed
that
for
the
use
of
the
logical conclusion of Rida's arguments
maslahah
would
be
that
it
is
something
equal to natural law and that istislah does not depend on
230
and
texts
qiyas.
Such conclusions,
spelled out by Rida failure
the
to
himself.26
Why?
however,
are
not
According to Kerr,
spell out the full implications of the
argument has to do with theological nature of Islamic law which
influences
liberal
maslahah,
even
theoretically the most
principle of legal interpretation in Islamic
jurisprudence. The theological foundations of Islamic law insist
on
minimizing the part of human
formulation
of
law.27
Before
he
goes
into
law of
has the
general aspects of Islamic law which,
two
its
basis
will
of
differences will
jurisprudence, Kerr
affect the function of maslahah.
turn,
of
denied
In
freedom
intellectual "could
not
in
God.
between
God.
in the
detailed analysis of the
a
concept of maslahah in traditional clarifies
reason
revelation refers
Kerr
and to
Firstly,
thus the
is
an
Islamic expression
theological
Ashcaris and Muctazilahs about
contrast
in man's
the
to
acts.
in
the
Muctazilah, Ashcarl
Consequently,
the
spirit and method of Islamic jurisprudence
entirely
escape
the influence of the law's
theological underpinnings, which proclaimed that
reason
is
essentially irrelevant to the substance, determination
26 p. 27
See
M.
Kerr,
"Rashid Rida and
legal reform",
108 M.
Kerr,
Islamic Reform,
p.
56
231
Muslim World,
[1960],
and
second
The
emphasis itself
is
is
aspect that affected maslahah was
qiyas. According to Kerr,
on a
means
revelation.29 not
value
a
of
the
Kerr
finds
circumscribed and social
in
subordinate
cause
and effect.
the
consideration
under
judgment.30
munasabah.
the
to
timid
Further,
cIllah
the limitations of
Munasabah
text.
that
also confined to the use
are
munasabah
He
also
al-maslahah
discussed.
op.
to
(suitability)
is
a
conservative,
in God's commands.
analysis that
maslahah
the
as
divided maslahah sources,
al-mursalah
be
acknowledgement of the place of
indications of
treats
conformity to the
Kerr,
even
the final
thus
Kerr
31
of
matter
utility (maslahah)
concludes
30
cillah in jurisprudence is
term
only means that goes beyond the indications of the
texts.
29
sense
the
indication within
of
the
identify cillah
to
the method of qiyas
judgment, but only the attribute or the
gives rise to the means
the
protecting the authority of
fact,
In
characteristic
28
of
applied in usual not
the
principles".28
obligatory character of moral
one
on
In fact,
he
wunasabah is text.31 of the
the
aspects of
basis of
the
and thus it is only
which
really needs to be
According to him al-maslahah al-mursalah is a
cit.,
Ibid.,
p.
77
Ibid.,
p.
67
Ibid.,
p.
73
p.
60
232
form of
qiyas, because whereas qiyas looks for the
cillah, al-maslahah al-mursalah seeks hikmah, general cillah. based
on
more
concludes that because it is not
Kerr
specific cillah,
a
a
istislah has been
a
subsidiary and occasional technique of disputed
validity.32 In
the-final analysis Kerr
al-maslahah "The
for
al-mursalah.
comes
He
says
is therefore and since it is
maslahah
hikmah
to equate maslahah with
a
specific term
more
known
in
each
case
not
by direct indication in the textual source but by the jurist's own judgment, it is a maslahah
mursalah.33
with his
the
confines maslahah
also
Kerr
textual
discussion,
It
sources.
refers
is
such
to
to
its
correspondence
noteworthy that Kerr,
jurists
as
al-Ghazall and
al-Qurafl who viewed maslahah in the above terms. discusses he
chose
the as
views
of
Ibn
in
He also
Taymiyyah and Ibn Qayyim whom
opponents of the validity of maslahah as a
principle of legal interpretation. But these jurists, regarded maslahah
too, and
qiyas.
latter
33
See
are
Kerr,
Ibid.,
p.
subordinate to textual
sources
The consideration of maslahah according to
would prevail over
them,
32
as
harmful
op.
cit.,
to
p.
the text and qiyas only when the
obey.
76
81
233
has
Kerr
al-Shatibi,
not
into
taken
account
who favour maslahah
as
jurists such
as
independent legal
an
principle. The significance of studying al-Shatibi's views
is
evident
gives
a more
is
maslahah
of
al-Shatibi
from Kerr's
regretable. According to Kerr,
view
detail,
analysis of istislah
led
Kerr
to
outspoken in his defence of
comes
further
a
analysis of Rashid Rida,
study the concept of maslahah in
characterises al-Shatibi
It
which
integral picture of maslahah.
absence
The
whose
from Tyan's
"as
exceptionally
istislah.34
surprise that al-Shatibi
not
was
only disregarded but also suffered a sort of indifference when
Abu
probably following
Kerr,
sum
confused him with
al-Shatibi.36
al-Qasim
To
Paret,35
the present studies on maslahah generally
up,
present an unbalanced analysis of this concept. failed
3^
35
See
to
see
Kerr,
the
cit.,
op.
Paret,
op.
death,
which is
Firah al-Shatibi
520,
and F.
p.
significance of this principle as
107
cit., mentions 1194
R.
1390] b.
real
in fact
died.
Knenkow,
They have
See
as
the year
the year of al-Shatibi's [d. in which Abu al-Qasim Muhammad
Brockelmann
"Shafibi",
in E.I.I,
G.A.L
vol.
[Brill,
1943],
p.
337 - 338. Unfortunately, the same error is repeated in the heavily edited and revised version of Paret' s article in the Urdu Encyclopaedia of Islam. Urdu dairah macarif Islamiyyah [Lahore: Danishgah Punjab], vol. II, [pp. 586 - 591], p. 589 36
See
pp.
op. cit., p. 194, referring to Riga's mention of rightly quotes his year of death, but in his index on
Kerr,
al-Shatibi 247
IV,
identifies
him
as
Abu
al-Qasim b.
234
Firah al-Shatibi
p.
it
was
it
as
conceived and employed by an
independent principle,
which al-Tufi
evidences
of
has the
gone
those jurists who viewed
but not to the extent to
making it override all the
Sharlcah.
The
independence of the
concept of maslahah depends on the absence of the
validity of the textual evidence,
as
is the
case
with the
theory of al-masalih al-mursalah due to the fact that this
theory is part and parcel of the concept of
maglahah.
Hence,
in Islamic law it would
appropriate that there should be maslahah
or
al-mursalah from
the
no
seem more
consideration of
application of the theory of al-masalih with
the
presence
Qur'an and Sunnah
or
235
of textual evidence either from
ijmac.
Chapter 8 DIFE_RENCE BETWEEN THE THEORY OF
THE
AL-MASALIH THEORIES
Here
diference
it
between
in
al-mursalah
interest" Islamic
should be
PUBLIC
AND
THE
INTEREST
pointed out that there is of
nature
Islamic
law and
the
the
"public interest"
a
great
theory of al-masalih theories
of
"public
propounded by the Western writers.
as
law
the
AL-MURSALAH OF
In
is determined by the
highest degree in seeking the pleasures of God through fulfilling His commandments and performing virtuous deeds.
Any action which meets the approval and
satisfaction of is
that
the
will
of
God,
or
any
just and unbiased which could be applied
executed
to
named
public interest in Islamic law.
as
sublime so
is
the
in
case
people without any reservations could be
for
obtained
to
services.
with
the
In Islam the
specification of evil.
if the majority of people,
favour
enacted
Islamic
all
or
good lies with God and not with human beings and
instance, are
judgment
rule or
of
commandment
and
demand
its manufacture meet
This
law
wine
the
is
so
a
that
or
For
all the people,
policy money
or
rule be
could be
running costs of health and social
not
considered
as
a
public interest in
simply because it is opposed to the of
God
and
thus
against His will and
pleasure.
Whereas
the
nature
of
"public interest"
236
as
viewed by
the Western
writers
substantive
truths
refers or
are
must
however general
skill may
or
principles.
principles meet;
to
stands
for
body of
a
These truths or
not formal tests that any public policy
they may be and however much
be required to apply them in particular
cases,
they provide substantive guidance to the proper content of now
of and
public policy. "rules"
call
They are akin to what some philosophers as
opposed to "principles".
The problem
determining what is in the public interest is first foremost
body of
problem of attaining knowledge of this
a
truth. One who does not have such
supreme
knowledge could only stumble onto the right policy as a blind
man
might stumble onto the right road at
junction.1
a
Plato asserts:
"...the
Sun
visible,
not
only makes the things we see
but also brings them into existence and
gives them growth and nourishment; ... so with the objects of knowledge; these derive from the Good not only their power of being known, but their very being and reality...".
Plato's
dimension of
1
Plato,
[London: 2
Plato,
Memo
position minimizes the "contextual" the
97;
descriptive meaning of "public
Republic,
506,
Oxford University Press,
Republic,
508,
p.
translated by Francis M.
1941]
220
237
Cornford
3.
interest".
The
policy turns not
justifiability of upon
particular public
a
the relationship between that
policy and features peculiar to the problem circumstances
applied.
to
which
in which
or
the
or
policy is to be
It turns upon its relationship to
a
truth or a
body of truths which exists and has been discovered antecedent
to
circumstances, been
has
the
policy.
or
trained
of the problem,
emergence
know
to
It is the time that a statesman this
timeless
equips him to decide questions of view
raises
"Good"
common
which
concern.
This
questions about the relationship between the
particular policy enacted
which is held to be in the
now,
public interest, and the timeless truth
or
truths which
the
philosopher-king must know. Whether
we
ever
the
public interest in the
truths
say,
such
those
the
Good
interest"
public policy or
that
for is
some
to
body of substantive
a
denominates
Plato
in these circumstances, is
commendable to
as
of
sense
a
speak of
the
Good,
justifiable
we
do
or
because of its relationship
-
other
account
reason.
for
the
A
theory of
manner
concept functions must be able to account
3
in
"public
which
for the
the
manner
If the metaphysical and epistemological substructure of Plato's theory is set aside, it becomes clear that many theories of "public interest" in the West are closely akin to Plato's. Whenever it is argued that "public interest" stands for a body of substantive truths or proposition about public policy, the theory can be likened, however enormous the other differences may be, to Plato's theory. For this reason, conclusions reached about by Plato will prove to be applicable to a large number of theories as well
238
in which
we
abstract
metaphysical
justify this policy,
Plato's "common
conclusion
good"
are
truths.4
moral
or
is
not a set of highly
that
"public interest" and
concepts which would be appropriately
employed only by philosopher-kings in discussion with other
interest" and
If it is true that "public
philosopher-kings.
if
functions
to
and
commend
justify public policy,
only the philosopher-kings are capable of fully
understanding the justifications and commendations, follows
that
would
there
be
occasion
no
to
use
it
the
concepts outside of the circle of philosopher-kings.
and
Benn
Peters
substantive
a
is
which
one
not a goal of public
concept at all,
policy, but simply of
a
a
"public interest" is not
that
argue
procedural principle
number
conditions
of
public policy must satisfy. prescription "seek the
that
In their words:
a
justifiable
"...
is not of the
good"
common
requirement
or
the same
type as "maintain full employment". Whereas the latter counsel
a
We
may
of
it
or
different, because
4
former
the
is
one
of procedure.
have different ideas about the way to maintain
employment, with
substance,
is
it
Richard E.
we
are
clear what the world would be like
without
it.
"Seek
but
not does
because not
Flathman,
it
the
common
good"
is
is vague or more general,
describe
a
determinate
The Public Interest,
239
p.
54
but
goal at all.
is
It
certain that
instruction
an
to
approach policy-making in a
spirit, not to adopt
the
should
state
a
it
seek
determinate policy. is
to
say
To say
only that
political decisions should attend to the interests of its members
in
spirit of
a
Bertrand de
impartiality".5
Jouvenel
that the descriptive
argues
meaning of "common good" consists in what he calls "social
tie".6
freedom
or
in
favour
If
this
is
justified,
its
of
the
tie"
latter
else
or
-
we
Western
tie"
the
to
alter
the
Jouvenel defines the
may
be,
it does
highly pluralistic value system of
societies
will
must
broadly enough to win wide agreement about
importance. However important it
violence
conflict between
justice and the "social tie" must be decided
commendatory force of "common good". "social
any
to
that service of the "social
suggest
always take precedence.
Determination of the
descriptive meaning of "public interest" will involve examination of
substantive
general sort
norms,
and or
S.I.
B.
precepts a
-
of
a
highly
but its nature
single
norm,
value
precept.
State, 6
values,
meaning cannot be equated with
conclusions
These
5
-
considerations
de
Benn p.
and
Richard
lead
Peters,
to
the
theory of
"public
Social Principles and the Democratic
273
Jouvenel,
Chicago Press,
Sovereignty,
chap.
1957]
240
7
[Chicago, University of
interest"
argued by Peter Drucker. Drucker suggests that
"public interest" is purely "an organizing concept",
a
concept that provides a framework within which substantive another
one
to
values
and procedural
and
the
to
much the
recommend
to
values,
relevant
to
particular which
it provides
etc.,
To
this
"public interest"
used
in
can
this view has
does
not
supply
and contextual facts
an
heading
a
be brought
extent
as
Cohen
dual
a
interest"
peculiar
determining its descriptive meaning in
values,
Julius
"Public
Once again,
formal principles,
cases;
evaluated.
it.
related to
are
considerations
contextual
decisions.7
specific policy
norms
it
is
category under
together and
enlightening to think of
organizing concept. "public interest"
suggests that
sense;
or
in
first
logical
a
sense
-
is
...
i.e.,
to
explicate the meaning of the established basic values of the
community. Thus it would be in the public interest to
pursue the
meaning of in
used
be
certain goal because it would be consistent with
a
in
an
the
implement
a
basic community value.
instrumental
sense
i.e.,
-
public interest if its one
or
more
Second,
that
a
consequences
it is
policy would would
of the established basic values of
7
Drucler1 s view is reported in Wayne Leys and C. M. Perry, Philosophy and the Public Interest, [committee to Advance Original
Work
in
Philosophy, Chicago,
1959]
p.
241
31
community.8
the
Cohen
standards
recognizes that the general are
norms
and
to determine the descriptive
necessary
meaning of "public interest"; he also asserts that look
"community values" to find those
to
standards the
opposed, perhaps,
as
-
products of
and
to the laws of nature,
autonomous reason,
an
norms
we
the patterns of
or
history.
David
Whereas
Truman
"public interest" with
equates
social
unanimity
latter
prevails, dismisses "public interest" of
8.1
BASIS
AL-MASALIH INTEREST It
OF
DIFFERENCE
BETWEEN
AL-MURSALAH AND
could
theories
no
issue
which the
on
as
a
mere
politics.9
"datum"
THE
finding
and,
,
of
be
THE
THE
THEORY
THEORIES
OF
OF
PUBLIC
easly found that the nature of the
"public interest"
in the western framework of
thinking differs immensely vis-a-vis the nature of the theory of "al-masalih al-mursalah" the
basis
the
"givens of community values"
the
basis
of
of
in Islamic law. While
"public interest" in the western theories is
the
or
"the social ties",
theory of al-masalih al-mursalah is the
o
J.
Cohen,
Friedrich, Press,
view of
A Lawman's
editor,
1962,
pp.
the Public Interest,
The Public Interest,
[Nomos V]
in Carl
New York,
Atherton
155-6
Q
D.
Inc.,
Truman,
1951],
The Government pp.
50
-
51,
Process,
358
-
9
242
[New York:
Alfred A.
knopf,
"intentions
of
fundamentals
of
(mind),
reason
the
Lawgiver"
human
in preserving the five
existence
viz.
religion,
life,
offspring and material wealth.
The
meaning of "public interest" in Islam is therefore quite different West.
To
from
judge
requires
a
meaning of the
case
same
terminology in the
to legislate a rule in Islam
or
full knowledge of "Divine Guidance" simply
a God
because
the
(the Lawgiver)
alone deserves the right to
command: "...the
declares
command rests with the truth, and He
none
but
God;
He
is the best of
judges".10 It
follows
Islamic
therefore,
law
in
favour
that of
no
rule
judgment in
or
"public interest" could be
legislated without the spirit and appreciation of the divine
revelation
due
the
to
fact
that
everything rests with God alone and the
real
is the
so
truth
case
of
with
benefits.
real
should
It
the
frameworks
be
in
born
within which
mind
the
that
there
are
various
interpreters and propounders
working. Some of these frameworks take this
cosmos
as
are
the
only source of their knowledge while the others take the inside sources
is
10
well
as
of
6
the
outside
knowledge. As far
concerned,
Qur'an,
as
:
he bases
his
this
of
as
a
universe
as
the
mujtahid in Islamic law
interpretation within the
57
243
Islamic
inside of as
well
this
a
universe
rule
is
it
Thus or
a
its
knowledge from the
through observation and reasoning
from outside
as
revelation. refute
which obtains
framework
this a
universe
grave
by
means
of divine
mistake to venture to
judgment in Islamc law without the
light and knowledge of the divine guidance and basing the argument within the Western framework which obtains
knowledge from within this universe only. also
with
true
benefits.
(i) worldly and Islamic
accuse
are
Islam
The case is
benefits
are
two
fold:
(ii) hereafter. Those who condemn and law of
rigidity, uncouthness and cruelty
viewing the issue within the Western framework which
considers the
In
its
worldly benefits only and ignores and rules out
hereafter
together. As we have seen in our short
of the Western theories of "public interest" that
survey
their
all
basis
is
either
"community values"
or
"social ties"
only which have nothing to do with divine guidance or revelation.
It
goes
in
al-mursalah sense
due
of
to
the
the
without saying that the theory of al-masalih Islamic
law
is
like
the
theories
word
fact
that
develop into laws Western
theories.
or
there
not
are
no
principles
Theories
in
a
theory in the western of
"public interest",
theories
in
is the
case
as
Islam
are
Islam
which
with the
simply
expositions of interpreters elucidating their findings and
expressing their opinions. What all the theory of
al-masalih
al-mursalah
is
about
244
is
to
illustrate
the
attitude wisdom
in
of
a
the
mujtahid in the attestation of the divine
judgment of
legislation to the existence
on
ever
cases
and in the
process
of
changing circumstances of human
earth.
245
CONCLUSION
As
a
problem of legal theory the question of
adaptability to social change has been in
one
the
a
controversial
history of usul al-fiqh. The qadis in the
early courts of law, particularly in the Umayyad period, relied of
mostly
on
£a'y (consideration of opinion). The use
ra'y generally amounted to a general consideration of needs.
human
Ra'y was, thus
institution of
There
scholars These and
law
was,
who
a
method that kept the then
adaptable to social change.
however,
opposition to ra'y among the
specialized in hadith and in local practice. considered
scholars
therefore
the
use
unreliable method
of
of
ra'y as an arbitrary
making decision. The
diversity of laws that resulted from the exercise of ra'y by the qadis in various cities increased the number of opponents to the use of ra'y.
The
adhere as
strictly to the Qur'an and Sunnah (of the Prophet
well
any
general attitude of the hadith group was to
as
of
his
companions), and thus to reject
idea of the adaptability of Islamic law. This
attitude
was
distortion was,
that
of
however,
enormous
Islamic
motivated Islamic
by the religious apprehension of tradition
by the
use
of raVy.
It
impossible to maintain in the face of the
degree of social changes that had taken place in
society by the end of the eighth century.
246
literal
The
insufficient
provisions of the Qur'an and Sunnah accomodate
to
the
were
growing number of social
Even the method of extending these provisions by
changes.
accepting the ijmac of the past generation of scholars certain matters
failed
accomodate
the
extend
limited
the
to
meet
the
demand.
need
The
changes could not be denied,
on
to
but how to
legal provisions to adapt to these
changes?
need
The
method
for
the
this of the
it
the
Even among the
The religious and theological implications
attitude fear
done
adhered
to the
accepted the validity of the method of qiyas for
same
has
an answer
as
large number of scholars recognized this
a
purpose.
the
qiyas developed
adaptability of Islamic law.
hadith group, need and
of
to
the
the
hadith group,
arbitrariness
of
for
literal
of
for
however,
the
method
spelled out of
older
trend
of
rejecting anything beyond
provisions, opposed the
use
of qiyas and group.
Although initially a method of adaptability,
soon
was
to
ushered
the
as
ra'y. Consequently, the Zahirls who still
departed from the mainstream of the headlth)
reaction
qiyas
Zahiri
into
the
and
similar
criticism,
yet in
qiyas
was
protection of strict formality.
It
sought as a foolproof corrective of the method of
ra'y. To remove the fear of arbitrariness, qiyas connected
with
the
"sources"
appeal of this method
was
so
-
the
Qur'an and hadith.
strong that
247
was
The
it overshadowed
its
opposition
well
as
as
any
other methodological
development in Islamic legal theory.
Nevertheless,
the method of
swept away by qiyas. in
survived
istislah, derived
darurah,
from
considerable than
those
The
social
these
use
of
istihsan,
principles such
as
Islamic law
on
Incidentally,
-
probably
was
or
the basis of
a
even more
adapting legal doctrines to
changes, was itself hampered by at least two
derived
One
was
the
attitude
of
formalism which
explicitly from the original
or
words,
the basis
"cause"
attitude
the analogy must
(Qur'an,
sources
ijmac of the early generations). In other
Sunnah
a
of analogy must be explicitly expressed "reason"
for
the
discouraged the
use
of implicit
or
original ruling
as
a
original ruling. This cause
in the
basis of analogy. Also this attitude
required reference to specific original rulings, than
or
the intent and
"spirit" of the law
original rulings. The
the
rather
encouraging the search for, and the application of,
general principles in
a
number of other
required that in order to be conclusive,
as
rules
qiyas.
extending
limitations:
be
of ra'y
principles constitute the basis of
part of
based
not completely
was
Trends similar to the
munasabah etc.
qiyas which in
methods
form
the
ra'y
second
attitude
of
limitation, formalism,
which further
strengthened
stemmed from the theological
248
view of
the
attributes
problem of causality in reference to the of
God.
Ashcarls opposed the
The
causality behind God's actions and speech.
being
any
Thus,
since the command of God, have
cannot
qiyas
any
cause
seeking to appoint of
the
limitations that
the
To
-
major
i.e
"sources
formalism and the
on
Qur'an
or
not
linked
of
social
adopt methods such
and
a
as
legal evidence) Malikls
a
-
was
question of inference
the Zahirisrejected qiyas
on
its application.
with
or
certain
Nevertheless,
accept these changes
of
causality
problem of social change and
method of reasoning
Sunnah.
occurrence
of
The ShaficIs, who did not entirely reject
any
was
denial
law".
imposed limitations
rejected which
of
of the above
consequences
this dilemma,
escape
altogether. qiyas,
of His acts,
for the commands of God.
legal theory became essentially from
one
motive, the entire method of
or
causes
discussion
the
being
to be suspected as wrongly or arbitrarily
came
One
idea of there
changes,
any
They
form of qiyas
specific rulings in the they could not deny the
nor
could they refuse to
in practice. They had,
therefore,
to
istishab (presumption of continuity to
justify these changes. Hanafis
employed certain methods which did not
strictly adhere to the requirements of the theory of the sources
of
methods
are
law,
principally methods of qiyas.
istihsan
(to decide
249
Two such
in favour of something
is
which
considered
hasan,
by the jurist,
good,
against the conclusion that
have been reached by
may
qiyas), attributed to the Hanafls, decide
in
favour
of
on
another
istislah
basis). These methods
good.
in
have
their
law
order
In
render
to
sources.
not
this
of
human
into If
of
concept of maslahah suited to
the Shafici
which called
was
accorded with
maslahah
The
was
of
and
They
the
sources,
it
somehow justifiable as a
literarily derived from the
was
not
based
on
the
sources.
al-maslahah al-mursalah
al-maslahah
schools,
"source of law".
upon
only category which was questionable was
treatise.
discussion
jurists imposed
categories according to its basis
qiyas, when it The
the adaptability
to favour
changes.
disputable, since it
sources.
was
consideration
concept the approach of the
method
that
was
the
legal philosophy,
the
was
social
to
divided maslahah in
not
Invariably the underlying principle in the
Islamic
this
were
the concept of istihsan
Yet the
common
reasoning of these schools of
(to
than any alternative rule
accepted by all the schools. and
and istislah
something because it is considered
maglahah, more beneficial, decided
over
which
This is
category
the
core
of
Naturally for the Shafici jurists the only maslahah
that
al-mursalah. even
mattered
This
the Malikls
significant
view
came
a
to
discussion of
dominate other
eventually accepted it.
consequence
250
was
of the above
categorization of maslahah maslahah
as
that the original idea of
principal independent
a
disregarded, and istislah al-maglahah al-mursalah. studies
was
related
to
came
source
to be equated with
This is contrary to the recent
maslahah
as
have
we
most
before.
seen
beginnings unfolded its various aspects with
to be
the concept of maslahah with its simple
Eventually,
contact
came
tasawwuf,
theology,
as
it
came
into
logical analysis and,
significantly, with social and legal changes.
Theological determinism introduced by Ashcari jurists largely in the discussion of taklif
appears To
Ashcaris,
Muctazilah
taklif
is created by divine command. this
refuted
(obligation).
sense
of
The
theological determinism.
They differentiated between two senses of obligation: taklif
and
rational
(obligatoriness);
wujub
and
ethical,
In
other
it
only informs him.
of
good and bad,
words,
concluded
that
or
this
while the former command does
mere
the latter was
not
was
theological.
oblige
man
What obliges man is the knowledge of useful and harmful.
It might be
interpretation should have been
acceptable to the legal concept of obligation. were
based
certain on
complexities.
one's
First,
knowledge of utility,
it
may
lead to
and furthermore this criterion
absolute
is
things which elements
are
which
not
Yet there
if legal obligation is
arbitrariness, sense
to act;
in its
universally applicable. All the
apparently useful also have certain
are
harmful
either
251
to
the
person
concerned
or
others.
to
conform
Second,
the
to
rule
all
of
rules of
the
utility;
Sharicah do not
there are obvious
hardships and disadvantages in obeying them. Third, preserve
left
be
cannot
Still
of
system the decision of utility
a
individual.
the
to
another
taklif
and
order and
an
Who
should
between the
hard
latter.
and Not
devices
seeks
seeker,
formal
a
are
one
there is
to
the
this the
even
choice
a
to avoid harm to himself,
and since he is
legal;
a
he
utility
satisfied by escaping the full
implications of legal obligation. To Sufis, attitude,
to view
maslahah oriented person chooses
a
only that,
feels
he
Whenever
sense.
soft,
which
decide?
The consideration
seeking utility and avoiding harm leads
obligation in
then
aspect of the relationship of maslahah
brought forth by Sufis.
was
to
in its lawful aspects,
was
this
quite opposite
meaning of obligation towards God. They opposed
attitude
enemies
as
of
However,
such
Sharicah
can
huzuz
the an
of
nafs
traveller
(lower
on
the
soul)
who is one of
path of God.
interpretation of the application of the
only be regarded
as
appropriate to committed
Sufis.
Finally, treatment
status
for
of
it would the
the
seem
that the al-Shatibi's
concept of maslahah deserves a paramount
modern
understanding of maslahah.
growing needs of the Islamic society today to the
modern
advancement
of
science,
252
technology,
The
cope
with
economics,
politics, etc., demand examination of
the
a
thorough and comprehensive
concept in question.
Since the whole
development process of society depends mostly
on
the
principles which give guidance to do constructive and creative activities
in all
therefore
that these principles should be
necessary
determined
through
a
aspects of life,
it is
methodology which is competent and
capable of analysing and differentiating between good and bad,
benefit and injury,
civilized
constructive and destructive,
uncivilized
and
comprehension of maslahah
etc.
as
Al-Shatibi's
that which concerns the
subsistence
of
livelihood,
and the acquisition of what
intellectual sense;
human
life,
the completion of man's
qualities require of him,
is actually
"food for thought"
is emotional and in
an
obsolute
for a modern
mujtahid to exercise his independent thinking to discover such to
unrestricted
meet
the
interests
(masalih mursalah)
in order
ever-growing demands of the society.
253
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A61
3Y
A
IN
THESIS THE
PRESENTED
FACULTY
OF
FOR
THE
ARTS, JUNE
DEGREE OF
DOCTOR OF
PHILOSOPHY
UNIVERSITY OF EDINBURGH. 1990.
(Ph.
ACKNOWLEDGEMENTS
I
like
would
those
to
express
my
appreciation and thanks to all
people and institutions who have contributed to my
interests advice
and
and
efforts
and
to
those
thanks go to my supervisor,
lecturer
in Arabic
and
I
helped
and
and Middle
with
Islamic
Eastern
Studies
Studies,
I.K.A. Howard,
Dr. at
for
the
Senior
Department of
his guidance,
patience
kindness.
acknowledge with deep appriciation the generocity of Sheikh
Ibrahim Afandi Kuwait
who
like
would
Muhammad
of
have
Arabia
and
Africa Muslim Agency
The
provided the funds for this study.
thank
to
Abu
Saudi
my
al-Fath
guardian and
for
vital
Dr.
M.M.
his
advice
U.K.
for
Miss
Crawford,
Middle
Most
of
advice
Eastern
services
and
all,
*
•
the
and
efforts.
The
the Director of
Ahsan,
I also
al-Bayanunl for his kind assistance in my
Many thanks also go to my advisor Dr.
his
of
former professor Dr.
my
course.
to
me
criticism.
My first
Islamic
have
who
and
assistance.
same
CA1I Jurayshah
kind of
thanks
go
Islamic Foundation in My best
regards are due to
Secretary of the Department of Islamic and
Studies,
for her
endless
hospitality,
good
gentle handling of the departmental matters.
I
am
indebted
family who have sustained
to my me
wife,
Zubeda Mahugu, and my
with unfailing encouragement and
support during our stay in Edinburgh.
ABSTRACT
THEORY
THE
This
thesis
al-mursalah
Muslim
OF
AL-MASALIH AL-MURSALAH
seeks
to
which
the
which
it
as
it has been developed by
discusses the legal background in
one
concept developed and the area of Islamic law in
might be deemed appropriate.
It also provides
linguistic and legal definitions of the term. the
primitive
scholars
are
uses
to
be
the
In chapter two,
of the principle as used by early Muslim
analysed. Although there is
as
yet no systematic
applications of al-maslahah al-mursalah
theory, seen
ISLAMIC LAW.
analyse the concept of al-maslahah
(unrestricted utility)
jurists. Chapter
IN
emerging.
can
be clearly
Chapter three outlines the systematic
development of the theory in which the jurists categorise the kind
of
benefits
chapter four,
their
but
individual
also
several
contributions
own
al-mursalah
In
this systematisation is studied in terms of the
contribution of al-RazI
appropriate to this legal principle.
thinkers
other to
the
including al-Ghazali and
important thinkers who made theory of al-masalih
with.
are
Chapter five is devoted to the work of al-Shatibl whose contribution
to
the
theory is probably the most significant
and
lasting. Chapter six contains
the
work
of
al-Tufl,
who made
an
analysis and critique of
this principle the paramount
principle in Islamic law. The theory put forward by al-Tufx led
to
World
the
and
scholars.
developments and redetions in the Modern Islamic the
principle
These
came
aspects are
to be discussed by modern
reviewed in chapter
seven.
Chapter eight draws the distinction between the Islamic
understanding of "public interest" theories
on
the
Finally,
or
"utility" and Western
subject.
the conclusion draws together the aspects of the
study and establishes the role of al-maslahah al-mursalah in Islamic
law
as
it
has
been
developed over the years.
TABLE OF CONTENTS
CHAPTER
1.
ISLAMIC
THE
AL-MASALIH
BACKGROUND
TO
THE
Shari ah
6
[A].
The
1.2
[B].
Fiqh: The Classical Theory
1.3
The
Definition of
1.4
The
Four
1.5
The
1.6
The
Distinction
1.7
The
Root
The
of
of
The
Position the
POSITION THE
[A]
and
Fiqh
Meaning
Mursalah
OF
21
Al-mursalah
Shariah
the
23
in the Qur'an and Sunnah
THE
UTILIZATION
EARLY OF
THE
MUSLIM
SCHOLARS
THEORY
OF
33
AL-MURSALAH
The
Al-masalih
of
The
thought
the
of
Imams
the
Schools
regards the Theory of Al-masalih
as
36
Malik
Imam
and Al-masalih
(The Malikis)
37
Al-mursalah
2.3.2
The
Position
of
(The Hanbalis) Al-masalih
Ahmad
Imam
ibn
Hanbal
regards the Theory of
as
39
Al-mursalah
Hanifah
Abu
(The Hanafis)
2.3.3
Imam
Theory of Al-masalih Al-mursalah Imam al-Shafii (The Shafiis) and the
41
2.3.4
Theory of Al-masalih Al-mursalah
45
2.3.5
General
Conclusion
of
the
Four
and
the
Imams' 49
Attitude
CHAPTER
33
35
Al-mursalah
Position of
Al-mursalah 2.3.1
26
AS
the
[C]
12 17 18 19 21
Position of the Companions Prophet (The Sahabah) [B] The Position of the Tabiin (The Followers of the Sahabah) Regarding to the Theory of of
2.3
its
Al-masalih of
Sources
AL-MASALIH
2.2
of
Legal Ordinances
TO
2.1
of
Shariah
the
and
Al-masalih Al-mursalah
1.9
THE
11
between
Definition
Role
2.
Fiqh
Maslahah
The
in
10
Major Sources of Islamic Law Divisions of Fiqh
1.8
1.10
OF
THEORY
6
1.1
1.7.1
CHAPTER
LEGAL
AL-MURSALAH.
3.
DEVELOPMENT
THE
OF
OF
THE
LEGAL
UNDERSTANDING
52
MASLAHAH
3.1
[A]
The Legal
3.2
[B]
Al-maslahah Al-mursalah as Decision
of 3.3
[C] of
Definition of Maslahah
52
means
Making
57
The Main Reservations the
a
in the Application
3.4.1
The
Theory of Al-masalih Al-mursalah Scope and Classification of Benefits Necessary Benefits
3.4.2
The
Reasonable
3.4.3
The
Luxurious
Benefits
75
3.4.4
The
Cancelled
Benefits
77
3.4.5
The
Unrestricted
3.4
[D]
The
Benefits
Benefits
60 64 70 74
81
CHAPTER
4.
MASLAHAH
AS
GENERAL
A
AND
4.1
Maslahah
as
a
General
4.2
Maslahah
as
a
Technical
4.3
Two
Main
TECHNICAL
A
TERM
85
Term
88
Term
in the Development of the Concept of Maslahah 4.3.1 Al-Ghazali's Concept of Maslahah
CHAPTER
Influence
The
4.5
Al-Razi's
4.6
The
Main
Trends
AL-SHATIBI'S
5.1
The
5.2
The
5.3
The
al-Ghazali
Jurists
other
on
of
the
OF
the
of
should
be
Universal
5.6
Al-masalih
118 120 130
Hereafter
the
Maslahah
Al-mursalah
identical
Bidah
144
AL-DIN
AL-TUFI
Al-Tufi's
6.2
The
6.3
6.4 6.5
Maslahah
is
the
Intention
6.6
Maslahah
in
the
Sunnah
6.7
The
Consideration
6.8
The
Root
Treatise
147
MASLAHAH
AND
6.1
Maslahah
on
147
147
The
Meaning of the Hadith "La darar wala dirar" Opinion of al-Tufi concerning
the
Consideration
of
Benefit
149
The
Consideration
of
Maslahah
of
of
and
152 153
by Qiyas
157 159 167
ijma the Lawgiver
156
Maslahah
of
ijma and Its Basis Objections to the Proofs of ijma 6.10 The Source of Dispute among the followers of
MODERN OF
CHAPTER
8.
the
Madhahib
Al-Tufi's
6.11
7.
172
Conclusions
STUDIES
AND
on
Maslahah
DEFINITIONS
ON
174
THE
CONCEPT
217
MASLAHAH
THE
DIFFERENCE
AL-MASALIH THEORIES
8.1
136 139
not
are
determined
are
6.9
CHAPTER
106 118
World
of
5.5
with
this
98
99
MASLAHAH
Masalih
How
NAJM
TREATMENT
90 90
Concept
Maqasid Doctrine Meaning of Illah in Usui two Approaches of observing the
5.4
6.
of
Concept of Maslahah
of Maslahah During the Period between al-Razi and al-Shatibi
Masalih
CHAPTER
Stages
4.4
5.
85
The
BETWEEN
THE
THEORY
AL-MURSALAH
AND
THE
OF
PUBLIC
of
Basis
Al-masalih Theories
of
236
INTEREST
Difference
Al-mursalah Public
OF
WESTERN
between
and
Interest
the
the
Theory of
Western
242
CONCLUSION
246
BIBLIOGRAPHY
254
INTRODUCTION
that
There
is
a
there
is
no
advancement. this
to
in
room
is
It
misconception about Islamic Law
common
not
it
that
for
character
by this idea who and
progress
only non-Muslims
misunderstanding, but
influenced
any
even
are
many
or
are
a
prey
Muslims have been
unacquainted with
spirit of Islamic law. What mainly is
responsible for this attitude is the concept that generally exists in the mind of the
common
regard to Islamic Law and man-made law. law
every
one
man
with
About man-made
knows that its composition and compilation
cWeprimarily influenced by the needs and exigencies of society. Therefore,
changes in the law kept pace with the
changes in social conditions. it will that
by
probably undergo changes at the
of
social
On
the
any
is
should has
of
speed
as
other
Islamic Law is not at all bound
hand,
rest
occur
Divine
on
in society.
revelation,
on
Its
the wisdom of
logic and human nature. The nature of Islamic
such not
been
no
that
one
human
influence
sent
Messenger And
same
too,
Prophet and on its understanding of the eternal
values law
in future,
environment.
changes that might
foundations the
Likewise,
down
to
desires
its
and
day-to-day events
composition in the least,
human
for it
beings by their Creator.
His
then elucidated and elaborated it to mankind. except God the Almighty and His Prophet has
to alter His law in the slightest degree.
any power as
far
there to
be
can
conception of Islamic law is concerned doubt
no
that
Islamic
Law
changes in society. On the contrary,
regarded of
this
as
this
itself
Muslim
subject,
static
a
not
the
to
Since the
is
Law
it does
that
not
assume
possess
is
well
as
the potential to accommodate
great divergence of opinion among
a
the
as
non-Muslim
scholars
its
tends to render it
more
the
even
this
its
prove
it
unenduring and It
is,
therefore,
that while scholars remain aware
necessary
of
more
the man-made law.
strength and stability,
examination
on
section believing Islamic Law to be truly
one
capricious than
of
that
growing needs of society.
there
progressive,
the
in spite
thing and lacks elasticity, and
rigid, while another section, overzealous to
all
susceptible
society is
it is not at all correct to
fact,
Islamic
is
subordinate to Islamic Law. However,
as
Thus,
there should be a thorough
potential for change and adjustment to
advancing forces,
so
that its true character be
properly understood.
The
relationship between legal theory and social
change is law.
laws,
one
"Law"
of the basic problems of the philosophy of
which,
having its associations with physical
is assumed to be unchanging,
always faces the
challenge of social changes which demand adaptability from
it.
Most
often
the
impact of social change is
2
so
profound that it affects legal concepts as well as institutions
and
thus
creates
need
a
for
a
fresh
philosophy of law. The problem of social change and legal theory is of particular significance in Islamic legal
philosophy.
sacred and hence immutable.
religious, law
face
The
Islamic Law is generally defined
the
as
How does
such a
challenge of change?
above
question has brought to the fore the
problem of the adaptability of Islamic Law which has been widely discussed,
so
has
been
yet
remains debatable. The problem
generally formulated in the form of the
following question:
Is Islamic Law immutable or
is it
adaptable to the extent that the change and modernization sought can be pursued under
Broadly speaking, in a
answer
this
to
its aegis?
there have been two points of view
question. One view, which is shared by
large number of Islamicists such
J.
Schacht,
and by the most of
as
C.S.
nature
Law
is
of
its
immutable
and according to
development and methodology, and
hence
not
and
the traditionalist Muslim
jurists, maintains that in its concept, the
Hurgrpnje
Islamic
adaptable to social
changes. A second view, which is upheld by a few experts on
Islamic
Law
such
as
Linant
de
Bellefonds
and
by the
majority of Muslim reformists and jurists such
as
Subhl
Mahmasani,
as
the
contends
consideration
of
that
maslahah
such
legal principles
(roughly translated,
3
benefit,
utility), the flexibility of Islamic Law in practice
or
and
the
emphasis
ijtihad (independent legal reasoning)
on
sufficiently demonstrate that Islamic Law is adaptable to social
change.
This of
the
a
contribution
towards
the
paradox of the dilemma of Islamic Law,
of
that
is
research
The theory of al-masalih
solution
to
this
al-mursalah is
paradox. The nature of the
one
and
to shed
the question of its sublimity and immutability
on
establishment
the
a
essence
spirit of Islamic Law is explained in chapter
in
namely:
being immutable and yet adaptable to social
changes.
light
solution
of
facts
and
truths.
The
Islamic
legal background to the theory of al-masalih al-mursalah is
discussed
Islamic of our
law
here have
first
the
in
order
to
show
that
the
principles of
equally remained the same since the dawn
Islamic
society right through the
ages
up
to
days without being affected by the changes in the
society. The position of the early Muslim scholars
as
regards the application of the theory of al-masalih al-mursalah
is
discussed
in
chapter
although the theory in question it
then, how
the
attitudes appear
not elaborated by
extensively applied by the scholars to show
was
important As
was
two to indicate that
a
device of Islamic law it is.
Islamic
and
legal theory developed
so
differing
understanding of the concept of maslahah
in the work of different scholars,
4
this is dealt
with
in
chapter three. The concept of maslahah as a
general
well
as
as
technical term is discussed in
a
chapter four.
five is about al-Shatibi's treatment of the
Chapter
concept of maslahah defining the goals and the objectives of
Sharicah
the
with
consideration
the
that
means
(maqasid al-SharIcah) which have to do
attainment
of
and
laws
the
the
of
benefits
the
rules
of
of
people.
Sharicah
the
are
This for
the
people's benefits at the same time as
preserving them from injuries. No law therefore is to be enacted
in of
maslahah
al-Tufi's
Sharlcah without
the the
people.
on
the concept
of
of
his
maslahah
and
ideas
modern
The
consideration
of
the
Chapter six discusses Najm al-Dln
concept of maslahah highlighting his peculiar
opinion most
the
have
a
critique
concerning the concept.
works
been
in question and giving
and
definitions
discussed
at
of
the
concept of
length in chapter seven,
chapter eight is a comparison between the theory of
al-masalih
al-mursalah
and
the
theories
Western
of
public
interest.
It
is
al-masalih
hoped that after this study, al-mursalah
in
Islamic
law
the role of
and
its
scope
providing the immutable laws of Islam with the possibilities of meeting the challenges of changing social
needs,
will be
more
clearly understood.
5
for
Chapter 1 LEGAL_ BACKGROUND TO THE THEORY OF
ISLAMIC
THE
AL-MASALIH AL-MURSALAH •
1.1
A.
THE
is
It
different of
it
may
the as
is the
be conceived
as
man-made.
in
accordance
the
us
two
The latter conception is
or
is
what
men
ethical
principles because God because the king
the leaders of the
or
us
for the good
Islamic notion of
the
understand
what
technically
as
and qubh
Good
an
law? Man
and
Evil
are
in his unless
inspired Prophet. Good
the Muslim scholars have
(ugliness),
are
it,
to be taken in the
acceptation of the terms. What is morally
beautifu] be
Roman,
be compelled to
may
alternatively,
or,
guided in the matter by
(beauty)
C.L.
so,
certain
We
it is,
the Greek,
social custom demand it of
cannot
Evil,
husn
with
law.1
of
or
people in general.
weakness
and
do
to
notion
assembly of wise
the
is
Germanic
or
Now,
1
are
with Islamic law,
case
Ostrorog has pointed out,
Leon
community
not
there
Law may be considered to
as
desires
he
conceptions of law. origin
Count
act
of
to remember that
necessary
guiding principle of all modern legislation;
Celtic
or
SHARICAH
divine
be
•
must
done.
be
That
Ostrorog,
done; is
law
and what and
is morally ugly must
nothing else
The Angora reform,
6
p.
15
can
be law.
But
what
is
absolutely and indubitably beautiful, what is
absolutely and indubitably ugly? These legal questions;
and who
can
answer
the Muslim legists.
the important
are
them? Certainly not
There is Qur'an which is the
man,
say
very
word of God as believed by the Muslims.
Supplementary to it there is Sunnah, which is the model life
of
the
sayings in
-
Prophet
from which
the records of his actions and his
-
a
help and inspiration are derived If there is nothing in
arriving at legal decisions.
either
the
or
the
Sunnah
to answer
particular
a
then the dictates of reason in accordance with
question, certain
Qur'an
definite
These
principles have to be followed.
principles give assistance to the
comprehension of sacred law
or
sharlcah
as
the Muslim
jurists understand it. And it is these fundamental juristic notions which in
consonance
we
must
try to study and analyse
with the theory of al-masalih
al-mursalah.
Modern
jurists emphasize the importance of law for
understanding the character and ethos of "Law"
a
people.
says a modern jurist, "streams from of a people like national poetry, it
the is as holy as the national religion, it grows and spreads like language; religious, ethical, and poetical elements all contribute to its vital soul
force";2
2
C.K.
Allen,
Law
in
the making,
p.
7
54;
5th ed.,
p.
90
it
is, "the
distilled
of
essence
civilization
the
of
a
people";3 "it
reflects
This
the
people's soul
is
of
true
Islam
its
civilization,
of
core
its
of
than
more
Sharlcah is the central of
than any
more
organism".4
other
other
any
Islam;
faith.
The
understanding
no
social history or
its political
system is possible without a knowledge and appreciation of
its
system.5
legal
Sharlcah
(lit.,
path to be followed) law
Canon
Each The
of of
one
of
law
Islam, such
God
road to the watering place,
the as
a
inner
is
called
hukm
meaninggye not
(pi.
and Sharlcah embraces all human actions.
reason
it
an
not
infallible
DOCTRINE
considerations
and
3 4
of
A.S.
Diamond,
D.H.
Parry,
all
individual
the
modern
It
sense;
rights have
a
this
For
it contains
is fundamentally
code of obligations.
a
place in it. Above all, evaluation
the
guide to ethics.
DUTIES;6
OF
in
"law"
ahkam). to
easy
grasp;
is
the
totality of God's commandments.
the
its
signifies
technical term,
commandments
and
the
a
Legal secondary
the tendency towards a religious
affairs
of
life
Evolution of Law and Order,
Haldane memorial lecture,
p.
p.
is
supreme.
303
3
C
Esquisse,
J.Schacht, sources
®
This
of was
Goldziher, EI.
1,
vol.
the
Shariah
p.
9;
in
Law
and S.G.V. in
Fitzgerald,
the Middle
East,
Nature and vol. 1, p. 28
pointed out by Snouck Hurgronje, who according to is 2,
the p.
founder of historical
105;
and Fitzgerald,
8
criticism of op.
cit.,
fiqh.
vol.1,
p.
See
31
the
Sharlcah,
the
In
classified
the Muslim scholars have
religious injunctions into five kinds, al-ahkam
al-khamsah7
Those
strictly enjoined
strictly forbidden middle to
do
haram.
are
categories, namely, mandub,
from makruh,
prayers,
(festival)
are
crabs,
makruh,
things, is
advised
are
refrain
ja'iz.8 five in number,
mandub;
are
like those
on
fard; wine is the cid,
certain kinds of fish,
and there
are
all human activity
such as
thousands of
such as travelling by air etc.
universal;
you
and finally there are things about which
daily
are
Between them we have two
things which
the additional prayers
haram;
and those
and things which you are advised to
religion is indifferent
The
fard,
are
ja'iz
Thus the Sharicah
is embraced in its
sovereign domain. This fivefold division must be carefully noted;
unless this is done,
for,
it is
impossible to understand the distinction between that which
is
only morally enjoined and that which is legally
enforced.
Obviously, moral obligation is quite
different
thing from legal necessity, and if in law these
distinctions
of
not
inevitable
the
are
are
kept in mind,
result.
al-masalih al-mursalah
Thus,
error
the
a
and confusion
study of the theory
helps to comprehend those
•7
Kemal
Research 8
EI.
1,
A.
Faruki,
Institute, s.v.
Al-ahkam al-khamsah: pp.
Shariah,
43-8 vol.
4,
p.
322
9
The
five values;
Islamic
distinctions
and
demarcations
make
between
moral
obligations and legal necessities. 1.2
B.
THE CLASSICAL THEORY
FIQH:
Fiqh is the
given to the whole science of
name
jurisprudence because it implies the exercise of intelligence in deciding a
binding
Sunnah. a
(textual command)
nass
Fiqh literally
jurist,
a
difference
point of law in the absence of
a
person
from the Qur'an
or
"intelligence", and faqih is
means
skilled in the law. There is thus
between
cilm
(knowledge),
and fiqh, which
requires both intelligence and independent judgment. man
may
faqih
be learned,
fuqaha'), he must
(pi.
independent judgment, "correct"
and
fuqaha'
may
9
to
be
Wensinck,
term
fiqh
Roman,
found
also have been suggested by the Latin
also
Muslim creed,
p.
110
his
article
on
-
Jewish and Persian
has
in the
Fiqh
-
a
the
But
10
laws.9
valuable discussion on the the incorporation of
idea of
Islamic law
EI.l,
misleading
for a
traces of similar cases
some
in hadlth literature. in
(juris) prudentes;
in Roman,
Jewish and Persian laws
Goldziher
or
classical author. The terms fiqh
a
study of fiqh reveals that are
a
the quality of
binding rule of law, and the "weak"
(juris) prudentia and
terms
possess
A
the capacity to discern between the
unsupported opinion of and
culama'), but to be
calim (pi.
a
vol.
2,
as
p.
SuggesllCel by 102
-
seems
1.3
THE
DEFINITION
have
We
defined
the
the moral
now
term
OF
to
FIQH
see
fiqh.
how
the
Muslim
lawyers have
Abu Hanlfa's definition stresses
aspect:
"fiqh is the soul's cognizance of its rights and
obligations".10 Turkish
The
"the
four
1)
defines it
authorities,
basic
define it in terms of
however,
constituents,12
and
as:
questions".11
knowledge of practical legal
Islamic
Most
its
Mejelle (Art.
we
may
therefore
say
that:
"Fiqh or the science of Islamic law is the knowledge of one's rights and obligations derived from the Qur'an, or the Sunnah of the Prophet, or the consensus of opinion among the learned (ijmac), or analogical deduction "(qiyas)".13
This the
on
is
the
classical
view and
oft-quoted tradition of Mucadh.
reported to have sent Mucadh, governor
of
distributor and
the
is
a of
one
said
be
to
founded
The Prophet is
of his companions,
province and also appointed him
as
a
justice. No trained lawyers existed then
Prophet asked:
"According to what shalt thou judge? He replied: "According to the scriptures of God". "And if thou findest nought therein? "According to the 112 11 12
Taftazani,
12
Talwih,
vol.
1,
p.
10
S.MahmasanI, Philosophy of Jurisprudence in Islam, J.Schacht,
Jurisprudence,
Esquisse, p.
as
p.53;
cAbd al-Rahim, Muhammadan
48
al-Shafici, Al-risalah,
tr.
p.
by M. KhaddurI,
11
p.
78
8
a
Tradition of findest
the
Messenger of God"
"And if thou
nought therein?" "Then I shall strive to
interpret with my reason". And thereupon the Prophet said: "Praise be to God who has favoured the messenger of his Messenger with what His Messenger is willing to approve".14
Possibly of late origin, tradition methods that
of
of
arriving at law
limits,
Qur'an has the
are
silent
of
Sunnah
next
1.4
is
for it,
THE
Law
on
the
and judgment exercised in
question. A noteworthy feature
the
Qur'an
is given pre-eminence
practice of the Prophet. Although
specifically,
it
prepares
the
"prevalent usage" of the community.
MAJOR
no
SOURCES
op.
and
jurisprudence,
OF
ISLAMIC
LAW
according to this theory, law.
Its
is the first
importance is religious and
less than legal,
the Word of God.
war
the actions and sayings
ijmac emphasizes the importance the Arabs
Islamic
of
Ostrorog, of
interpreted,
mentioned
Qur'an,
spiritual,
14
independent judgement, within
that
not
FOUR
The
belief,
be
the
for
to the
source
it emphasizes the principle
legal theory in case the Qur'an and
is
comes
consensus
gave
as
Prophet duly considered,
Sunnah
way
of
to
with
and
important
is not only permissible but praiseworthy.
accordance
the
an
explain the Islamic understanding of the
exercise
the
certain The
to
this is
When
as a
it is,
verse
of
in Muslim the Qur'an
is
cit., p. 21; Wensinck, op.cit., p. 156; Khadduri, in Islam, p. 28; cAbdu al-Rahlm, Muhammadan
peace
pp.
140-1
12
cited,
the Muslim authors
Glorious is
It
He"
this
for
or
"Says God, that
reason
legal questions,
authority.
the Blessed and Exalted".
the
verses
of
Qur'an
In interpreting the Qur'anic verses,
deemed
to
be
abrogated
earlier
be
the
verses
The
ones.
the
held to be of paramount
are
important principle has to be observed.
the
Mighty and
says,
although only a few of them deal specifically
(ayat), with
is
"God
say:
abrogating (mansukh)
are
deemed
textbooks
attention
to
(nasikh)
be
Islamic
on
Some verses are
verses
and
some
Generally speaking,
ones. to
one
to
the
repealed by the later law
give
good deal of
a
problems of interpretation and discuss
exhaustively the question of how the rule of law is to be deduced or
a
when
several
similar
directly The
or
Qur'anic
problem,
indirectly.15
second
of
source
pre-Islamic times for established
later,
Prophet
the
in
term was
law
15
two
Mahmasani,
leads
the
Sunnah,
ancient and continuous
the
usage,
community (sunnat al-ummah);
applied to the practice of the
(sunnat al-nabi).
terms
is
The word sunnah was used in
an
the
Islamic
The word sunnah must be
distinguished from the term hadith, the
same
when one verse affects another,
or
practice of the Prophet.
well
deal with the
verses
sometimes
op.cit., p.66;
to
a
confusion
cAbd al-Rahim,
13
for
op.
careless use of of
thought.
cit., p.77
A
hadith the
is
the
of
rule
report of deduced
law
particular
a
from
it
is
occurrence;
the
"practice" of the
his "model behaviour". The two
Prophet,
sources,
and
Sunnah,
and
represent direct and indirect revelation
often called
are
respectively.16 According mirror
The
of
opinion
the
(textual ordinance),
to Wensinck,
hadith is the
source
Islamic
of
law
ijmac,
is
consensus
the learned of the community.
among
Although
modern
critics
consider
it
to
in
Islamic
law,
and
an
examination of the corpus
element
of
third
Qur'an
society.17
Muslim
of
nass
sunnah,
the
fiqh reveals that
consists
of
the
concurrent
the
most
important
major portion of the law opinions of scholars
on
legal
the Muslim legists give it the third place in
questions,
descending order. "the
a
be
Snouck Hurgronje considers it to be
foundation of foundations" in the law.18
and
the
movable
element A
tradition
of
the
Prophet tersely summarizes the
principle:
16
J.
Schacht,
Esquisse,
16 and p. 58; U.P.Azamgadh, Distinction 91; al-Shafici said that Sunnah explains the Qur'an, Al-risalah [tr. by Khaddurl ], p. 72. See also S.M.Yusuf, The Sunnah; Its transmission, Development and Revision, pp. p.
between
Hadith
271-82;
and Hadith by J.Robson,
17
Wensinck,
and
Sunnah,
Muslim Creed,
p.
p.
1;
3,
pp.
23-8
and generally
see
EI.l,
EI.
2,
555
18
S.Hurgronje, Selected Works,
p.289
14
vol.
vol.
4,
p.
"My community will and
Qur'anic texts
several
ijmac
But
does
the
allied
majority view the
it
are
on
among
should
thus
the
Sharlcah like and
be
not the
error"19
an
in
adduced
its
support.20
representing
the Muslim scholars,
pre-Islamic sunnah,
and
understand
agree
it stands in Islamic law,
as
to
never
taken
as
it
was
the prevalent usage,
as
an
original
Qur'an and Sunnah but
as
source an
of
aid to
supplement these twin origins of the
Sharlcah.21
The
fourth
and
last
analogical deduction. (hiqqish),
from
together".22 and
used
of
Islamic
is
qiyas,
is derived from Hebrew term
Aramaic root, meaning
an
law
"to beat
In Arabic usage the word means
therefore
often
It
source
"measurement"
"analogy". The term ra'y and qiyas are
by lawyers and it is well to know their exact
significance. According to Schacht, "Individual
reasoning in general is called ra'y (opinion). When it is directed towards achieving systematic consistency and guided by the parallel of an existing institution or decision is called qiyas. When it reflects the personal choice of the lawyer, guided by the idea of appropriateness, it is called istihsan or
19
—
Wensinck,
cit., p. 113; According to al-Shafi i, giyas and ijtihad run parallel and have equal value, M.H. Kerr, Islamic Reform, p. 76; cAbdu al-Rahim, op. cit., p. 115 ?0
21
—
—
Mahmasani, For
D.B.
22
op.
op.
cit.,
p.
ijmac generally,
Macdonald,
Schacht,
op.
EI.
1,
cit.,
see
vol. p.
76
Schacht, op. 2, p. 448
99
15
cit.,
p.
82;
and
(preference)".23
istislah
exercise
The
and
the
from
earliest
the
deduction is
the
opinion,
discretion
of
use
of
forms
the drawing of conclusions, used
were
in
the
days, and in Sunnite law, fourth
the
and
last
source
of
law
Islam
the method of of
law.
This
type of source in which a jurist may consult the
theory of al-masalih al-mursalah to draw his conclusions and
formulate
law
as
well,
exercised such
opinions. There
by English judges
will
be
discussed
difference
of
opinion
discretion
can
distinctions
on.
They mainly reflect the
jurists in matters where
among
have
and
become
lead
ijmac,
secondary
therefore
a
supplement of Qur'an and
addition
In
others
which
and
Schacht,
may
these
op.
to
the
four
be termed
cannot
cit.,
p.
Qiyas,
like
of the Sharlcah and is
a
source
and
refinements
questions of controversy
is
23
to
the adherents of various schools.
among
law,
judicial discretion
istishab and istihsan,
later
exercised
which
other sources of
matters of public policy,
on
istidlal,
,
be
are
in the nature of
often
istislah
as
which
his
formal
as
Sunnah.24 sources,
there
are
the material sources of
be neglected,
such as pre-Islamic
98
24
Generally see Schacht, op. cit., p. 98; and Ency. of Islam, under subject matter "Qiyas"; also see Mahmasani, op. cit., p. 79. For Shiite doctrine see Fitzgerald, Law in the Middle East, vol. 1, p. 122
16
is
There
custom.
considerable
authority for the
proposition that beneficial customs, although ancient and pre-Islamic, in mind
bear
retained.25
to be
are
those
that
indirectly at loggerheads with the
Qur'an
in
of
law
customs
of
different
this
known
of
material
as
retention
the
of
the
peoples and countries is also to be
cadah
as
or
binding ordinance from
Evidence
Islam.
in Java and Indonesia,
as
is
a
directly
are
Sunnah will not be considered
or
sources
found,
which
customs
it is important to
But
Africa,
curf.26
or
Egypt and India;
Customs
are
also
accepted under the guise of ijmac.
1.5
DIVISIONS
THE
While be
also
we
discussing the nature of fiqh,
are
sections.
foundations)
the
likened
first to
The
and the furuc,
modern
law,
from
as
the
we
Fitzgerald, See
"
op.
cAma1",
cit.,
E.I.
2,
p.
injunctions
would call of
usul.
East,
vol.
(or
vol.1,
1,
p.
-
ahkam
it,
which
The
science
28; MahmasanI,
may
be
op.
cit.,
or
-
the
really
p.
of
usul
91
On custom in general, see vi; Mahmasani, op. cit., p. 290 and Fitzgerald, Law in the 110; Coulson, History of Islamic law, p. 147 p.
427.
Levy, Social structure of Islam, chap, 130; S. Hurgronje, Selected Works, p. Middle
the branches
jurisprudence, while the science of
science
9 c
2®
the
principles of interpretation and
our
substantive
(or
The science of usul deals
of the law.
furuc deals with particular
follows
it must
literally the roots
usul,
of the law,
applications)
with
FIQH
pointed out that this science has been divided
into two
the
OF
17
deals with
the
science
the
of
sources
the
furuc deals with the law
of
applicable in courts of justice, marriage, law of
realize
the law of waqf
inheritance. in
that
distinction
between
1.6
DISTINCTION
their
have
essentials,
now
is
distinction, circle, is
the
if any,
have
the
edifice an
are
Sharicah
of
a
what
THE
SHARICAH
of
action
is
clear
AND
FIQH
in
fiqh. What is the
between them?
Sharicah is the wider
in its orbit all human actions and deals with what
Sharlcah reminds
cilm (knowledge) which
we
;
fiqh
commonly
are
us
always of
could
never
in fiqh,
and deductions based
continuously cited with approval. The path laid
down
by God and His Prophet;
fiqh is erected by human endeavour. is
the
to
Sharicah is and what,
either
legal
or
illegal,
yajuz) permissible or not permissible.
27
very
or
principles and the rules
of reasoning is stressed,
cilm
the law of
necessary
possessed but for the Qur'an and Sunnah; power
upon
one,
that
is
there
first
legal acts.
as
revelation,
law
BETWEEN
seen
it embraces
understood
instance,
for
therefore,
the definition of
narrower
is actually
it
as
application.27
from
We
the
interpretation;
(charitable foundation)
is,
It
Islamic
deduced
THE
its
law and
the
In fiqh,
(ma ya juz wa ma la In the
Sharlcah,
on Fiqh, E.I. 1, vol. 2, p. 104; this is a most general article on the subject; MahmascTtyt..Philosophy of Jurisprudence in Islam, p. 63; cAbd Rahim's Muhammadan Jurisprudence
I.Goldziher,
valuable
is
a
modern
textbook
on
usul
18
there
is
the
for It
various
are
used
term
the
law
however,
must,
distinction Muslim
the
is
in
the
law
as
science;
a
and Sharicah,
divinely ordained path of rectitude. be candidly confessed that the line of
by no means clearly drawn, and very often
scholars
themselves
use
the
terms
for the criterion of all human action,
synonymously; whether
for
the
as
Sharlcah
the
or
in
the
fiqh,
is the
seeking the approval of Allah by conforming to perfect
code.28
1.7
ROOT
THE
Before
OF
MASLAHAH AND •
•
it
maslahah
mursalah.
a
and
of
noun
indicate
of
an
-
ideally
MEANING
root
a
when
a
appropriate to define the words
seem
Etymologically, the word maslahah
"s-l-h".
thing
or
right, virtuous, honest, state
ITS
same
discussing the role of al-masalih
al-mursalah,
is
Fiqh
grades of approval or disapproval.
man or
The
verb
"saluha"
is
used
to
becomes good, uncorrupted, alternatively to indicate the
possessing these virtues. When used with the
preposition "li" it gives the meaning of suitability. Maslahah an
a
in
occasion,
thing,
an
conducive
28
to
Levy says
constitute
ete-fimition
its or
relational a
sense
means
goal which is good.
affair
or
a
good,
or
that is for good.
a
cause,
It
a
means,
is also said of
piece of business which is Its plural form
that fiqh plus kalam [scholastic philosophy] combine and Sharicah, Social Structure, p. 150, which is a wrong
the
of the
Sharicah
19
is
"masalih".
Ma£sadah
is
its
exact
In Arab
antonym.
usage,
it is said:
means:
"He
of
the
people". The sentence "f1 al-amr maslahah" is used
to
say:
considered
the
things that
were
for the good
"In the affair there is that which is good
In
the
Qur'an various derivatives of the root
"s-l-h"
are
used,
appear and
the word maslahah,
there. The Qur'an
"fasada"
"saluha". occurs
(or a
good).29
of
cause
al-nas" which
"nazara f1 masalih
"zalama"
corrupted)31
(he/it
"Salih"
uses
the
active
as
(he did
wrong)30
opposite terms to
participle of "s-l-h",
frequently in the Qur'an. On
very
does not
however,
one
meaning of this term is elaborated textually
occasion the as
follows:
"They believe in God and in the last day and enjoin goodness and forbid evil and hasten to do good deeds and these are the righteous ones
(salihin).32
it
Whereas and of
not
See
E.
1863-93], 30 31 32
the
Qur'an
clear was
good and utility,
had
29
in
is
See
yet become
Qur'an,
4,
pp.
its
use
in
the
early period
essentially related to the meanings there can be no doubt that the word
technical term.
An Arabic-English
Lane,
vol.
a
that
lexicon,
[London: Williams
and
1714-15
5:39
Ibid.,
26:125;
Ibid.,
3:114.
27:142;
2:220
Raghib al-Isfahani, Al-mufradat fi gharib al-Qur'an, Tijarat al-kutub, 1961], p. 286, also confirms that in the Qur'an "salah" is often opposed to "fasad" and "sayyia'" [Karachi:
20
1.7.1
DEFINITION
THE In
Arabic
OF
language the word "mursalah"
independently judged, indicates
of
state
a
MURSALAH
or
means
unrestricted. The word also
being left alone which is normally
expressed in Arabic by the term "mutlaq al-hal" "mursalah"
it only appears in the books of
Sunnah; used the
neither in the Qur'an
appears
nor
(unrestricted benefit)
as
of determining
means
a
to formulate
masalih mursalah}
{pi.
"maslahah mursalah"
in the
"usul al-fiqh"
concurrently with the word "maslahah" term
The word
♦
unspecified benefits in Islamic law.
1.8
ROLE
THE
For
lawyers, it
as
the
OF
AL-MASALIH
"al-masalih
term
while others
use
the
term
due
at
the
as
a
same
the
to
"maslahah"
(i)
Some call
(unrestricted suitability),
"istislah".
(seeking the
the term "istidlal"
use
same
objective from
fact
that
(benefit)
obtain
a
different angle.
certain
This
rule which is based on
every
could be observed in three aspects:
resulting benefit;
a
in
objective. Yet, each term
(ii)
as
a
suitable
description which necesitates the legislation of to
(seeking
Although these terms may seem different,
reality they imply the
is
Muslim
some
other terms.
use
al-mursal"
better) and still others
looks
al-mursalah"
jurists and scholars
"al-munasib
proof).
AL-MURSALAH
benefit;
and
benefit.
21
(iii)
as
a
a
rule
deciding
Those
aspect those
discern
who
in his
book
an
"Al-mukhtasar"
"maslahah"
within
"istislah"34
Some
Muslim
the
where
(a)
(c)
benefit.33
unrestricted
through the second aspect
into:
al-mursal"
a
as
Ibn
he
divides
the
an
effective benefit,
such
the
Qur'an,
istihsan to
and
Whereas
those
who
and
(d)
perceive
of the third aspect use the
scope
"istidlal"35
or
scholars
regard "istidlal" as being
excluding evidences
ijmac and qiyas, such
Sunnah,
istishab.
al-masalih
al-Hajib
strange benefit,
superior to all types of evidences, from
while
al-mursalah";
al-mursal"
consistent benefit,
a
term
"maslahah"
"al-munasib
term
"al-munasib
(b)
perceive "maslahah" through the first
the term "al-masalih
use
the
use
who
Hence
al-mursalah
this
as
of scholars refer
group
by the term "al-istidlal
al-mursal".36 t
In
Muslim of
spite of the differing perceptions amongst the jurists and scholars
lawyers,
maslahah mentioned
product is the
same
-
on
above,
notwithstanding,
i.e.
maslahah which enters in the
a
intention of the Lawgiver without having
33
al-Hajib, Al-mukhtasar, vol. Al-qhalll, p. 34
2,
p.
See
al-Ghazall, Al-mustasfa, vol. 1,
p.
139
See
Imam
See
al-Zarkashi,
Shifa 34 35
al-Haramain,
Al-burhln,
Al-bahy
vol.
Al-muhit,
22
an
the end
evidence for
-
Ibn
See
the three aspects
342; and al-Ghazali,
2,
p.
329
vol.
3,
p.
166
it
from
or
qiyas,
ordinances
the
of
the
Qur'an and Sunnah,
which acknowledges its consideration
its
nullification.
1.9
THE
POSITION
OF_AL-MASALIH
or
proves
AL-MURSALAH IN THE
SHARICAH
SOURCES
OF
THE
It
is
important to remember that the theory of
al-masalih
Sharicah,
for
sources
could
sources
not
be
Islamic
(vii)
Prophet;
practice);
a
(preventive measures);
the
simple);
(iv)
(xii)
(xiii) (xv)
the
37
cAbd
fih,
the Prophet)
(iii)
The Sunnah;
the Companion of the
(viii)
(ix) Al-Bara'
Istishab
al-asliyyah (xi)
Sadd al-dharaic
Istidlal
(
deduction);
Ikhtiyar al-aysar
(taking
(xviii)
for Shicas;
(xvii)
Ijmac of al-GItrah and
(xix)
Ijmac of
caliphs.37
four
See
nass
sources.
(xvi) Al-Cismah (immunity from sins);
Ijmac of the people of Kufah; (the house of
(ii)
these
Al-Cawaid (customs);
(x)
(equity);
of
al-masalih
Ijmac of the Medinah
A saying of
(induction);
Istihsan
one
The Qur'an;
(vi)
(original exemption);
(xiv)
as
which
al-Masalih al-Mursalah;
(continuation of
Al-istiqra'
in
law
described
(i)
are:
Qiyas;
(v)
of the
source
Some Islamic jurists have outlined
Ijmac of the Islamic Ummah; people;
primary
a
it cannot stand alone in legislation
hence
al-mursalah These
is
al-mursalah
except by conditions. nineteen
ijmac
or
p.
al-Wahhab
Khallaf,
Masadir
109
23
al-tashrlc al-Islami fi
ma
la
of
Some
these
sources
jurists and lawyers and order
In
their sul
to
detail
in
rules
their
know
accepted by all Muslim
are
of them
some
boundaries, one
has
to
the
are
realities and
the
books
on
u_
the
benefits
injuries confirmed
it
al-masalih
al-masalih al-mursalah
(La darar wala dirar)
the
negation of injuries;
thus
formulates
al-mursalah.
conflict
to
nor
repay
this
and since the
detested in the Sharicah and benefits are
In
the
basis
with
some
of
spite of this,
injunction is enjoined in the Qur'an seems
the prime
importance of confirming the consideration
and
are
are
"Do not inflict injury,
injury by another"
indicates
as
which
it is derived from the saying of the
concerned,
Prophet which states:
of
consult
Qur'an and Sunnah,
origins of the Sharicah. As far
one
scopes,
upon.
al-fiqh. Clearly the strongest out of these nineteen
sources
is
disagreed
are
benefit
or
the
if
theory of an
Sunnah which
thought of by the use
of
the
theory of al-masalih al-mursalah,
is
the
injunction that will be executed and not this
in that
case
theory simply because the injunction comes from the
primary
source
secondary
whereas the theory in question is a
source.
the Qur'an
or
Moreover,
Sunnah
are
the ordinances either from
not meant
to harass
people
deprive them of their rights and legal benefits
as
or
the
Qur'an states clearly: "And
(God)
has imposed no difficulties on you in
24
it
religion";38 and
also
the
"When
Prophet is reported to have said:
command
I
according to
It
the
of
you
your
to do something do it
ability".39
without saying therefore
goes
that the nature of
theory of al-masalih al-mursalah in the strict sense the
terminology is limited within the environment of which
benefits
neither
have
origins of the Sharlcah benefits
should
be
been
dealt
with by
cancelled by them.
nor
independently judged by
a
the main The
mujtahid and
weighed out without referring to previous experience, simply because when bearing the
same
analogy and
ceases
al-mursalah. made
rules
in
new
cases
causes,
the
the whole exercise develops
to work under
Islamic
The
best
referred to old ones
are
into
the theory of al-masalih
understanding is that God has
way
to fit the lives of people by
providing general principles and guidance and has left out
details
the
themselves sense.
He
of
things to be discovered by the people
through observation and the use of common has
dealt
with
general and has left the
human
the
primary issues of life in
the secondary ones to be tackled by
beings themselves
(as a mercy to them and not
through forgetfulness or failure). "0
38 O
Q
ye
Qur'an,
The Qur'an says:
who believe! Ask not questions about things
22:78 _
—
Reported by al-Bukhari and Muslim
25
which may
cause trouble. But if you ask about things when the Qur'an is being revealed, they will be made plain to you, God will forgive those: for God is Oft-forgiving, Most Forbearing. Some people before you did ask such questions, and on that account lost their faith".40 The
Prophet is also reported to have said: "...And
(God)
has kept silent over some things as forgetting them, so do not
mercy to you without ask about them".41 a
1.10
LEGAL
ORDINANCES
follows
It
al-masalih
that
IN
the
al-mursalah
THE
QUR'AN AND SUNNAH
sphere in which the theory of
could
operate
Qur'an and Sunnah
are
ordinances
of
Qur'an and Sunnah which deal with
issues
quite scanty compared to the injunctions which
are
with
deal
purpose every
the
other
silent.
is that in which the
In
fact
actual
aspects of life in general.
of this is to give enough
room
the
The main
to accommodate
benefit possible without the need of altering
anything in the main structure of the Sharicah. Qur'an, each
legal
and
for
instance,
every
rule,
has
not
The
into detail of laying
gone
but instead it has just laid down
general principles for the legislation of practical rules whether
in matters
criminology
or
economics. We limited its
the
Qur'an has
(i)
its legality:
40 44
Qur'an,
concerning civil rights, constitution, see,
rules
5:104-5
Reported by al-Bukharl
26
for example, to
four
in trade
things only:-
"...And God
has
permitted trade and forbidden
usury...";42 (ii)
the condition of mutual agreement:
"0 ye
who believe! Eat not your property among yourselves in vanities: but let there be amongst you traffic and trade of mutual good-will...";43 the act of witnessing:
(iii)
"...And take witnesses whenever commercial contract...";44 and
(iv)
believe! When a call is made for the Friday, rush for the rememberance of
ye who prayer of
civil the
in
trade...".45
and leave
Whereas
make a
its prohibition:
"0
God,
ye
find,
we
rights
rules
one
for example,
in the Egyptian code for
hundred and twenty rules for trade;
concerning trade in detail
Islamic
are
still
jurisprudence which differ from
one
and
numerous
school
system to another.
In
connection with
Qur'an has every
just political institution;
44 45
46
and
"...And
ask
consult
them
"And
43
constitutional
Qur'an,
matters
the
confined itself to three major principles
consultation
42
the
those
4:29
Ibid.,
2:282
Ibid.,
Surat
Ibid.,
3:159
(i)
counselling: God commanded the Prophet: for in
who
(God's)
forgiveness for them; and
affairs
(of
answer
the
2:275
Ibid.,
these are:
for
al-Jumucah:9
27
moment)...";46
call
of
their
Lord
and
establish
worship, and whose affairs by) counsel among themselves...";47 (ii)
are
(decided
justice: commands
"God
to render back the trusts to they are due, and that when you judge between people you judge with
those
to
you
whom
justice...";48 and
(iii)
believers
"The
between
peace
The has
not
equality:
Islamic
but
are
for
understanding of this is that the Qur'an
into details concerning legal rules in
gone
so
to
as
give
an
ample space for
generation to acquire what is beneficial and decide
themselves
their
therefore make
brethren...".49
your
constitutional matters every
brethren,
environment
In
is
what
and
connection
with
itself
offences:-
(i) murder:
it
does
to
not
to
them
according to
situation.
restricted
"And
suitable
punishments,
five
the Qur'an has
punishments for five major
behove
a
believer
to
kill
a
believer;
but (if it so happens) by mistake, (compensation is due): if one so kills a
believer,
it
is ordained that he should free
a
believing slave, and pay compensation to the deceased's family, unless they remit it freely. If the deceased belongs to a people at war with you, and he was a believer, the freeing of a believing slave (is enough). If he belonged to a people with whom you have a treaty of mutual
47 48
49
Qur'an,
42:38
Ibid.,
4:58
Ibid.,
49:10
28
alliance,
compensation should be paid to his family, and a believing slave be freed. For those who find this beyond their means, a fast for two months successively (is prescribed): by way of repentance to God; for God hath all knowledge and wisdom.
all
If
a
man
kills
a
believer
intentionally, his
recompense is Hell, to abide (for ever): and wrath and the curse of upon him, and a dreadful penalty is prepared for him";50 therein God are
(ii)
theft:
"As
to the thief, male and female, cut off his or hands: a punishment by way of example from for their crime: and God is Exalted in
her
God
Power";51 (iii)
transgression:
"The
punishment of those who wage war against God His Apostle and strive to make mischief on the land is only this, that they should be murdered or crucified or their hands and their feet should be cut off on opposite sides or they should be sent into exile from the land; this shall be as a disgrace for them in this world, and in the hereafter they shall have a grievous and
chastisement";52 (iv)
adultery:
"The
woman
and
fornication,
the
guilty of adultery or flog each of them with a hundred man
stripes...";53 and
(v) "And
slander of chaste those
who
launch
women:
charge against chaste four witnesses (to support their allegation),- flog them with eighty stripes; and reject their evidences ever after,
women,
for
50 51
52
53 54
Qur'an,
Ibid., Qur'an,
a
and produce not
such
men
are
wicked
transgressors".54
4:92-93 5:38 5:33
Ibid.,
24:2
Ibid.,
24:4
29
It
kinds
can
of
noticed here
be
offences
that
crimes
and
the
have
upon
by the responsible people in
they
see
fit for their benefits
with
the
principle:
"The
connection with
In
limited
itself
the
wealth
rich of
"And For
and
those the
(for
the
rich
the
every
poor
decided as
for
an
injury is
an
The
the
rules
Qur'an has
by
to a share in the wealth
right of
enunciated
in whose
be
generation
economic matters
state.
is
to
to go hand in hand
as
its multifarious
from
left
many
degree)...".55
establishing the right of of
been
recompense
(in
injury equal thereto
punishments of
is
by
poor
many
over
verses
the
such as:
recognised right. who asks and him who is prevented reason from asking)";56 wealth
a
(needy)
some
"By no means shall ye attain righteouness unless give (freely) of that which ye love...".57
ye And the
the
right of the
state
"And
is know
decided that
poor
by
out
to a share in the wealth of
verses of
all
-
such as:
the
booty that ye may (in war), a fifth share is assigned to God, - and the Apostle, and to the near relatives, orphans, the needy, and the
acquire
wayfarer...";58 "Alms
for
the
poor and the needy, and those employed to administer the (funds), for those whose hearts have been (recently) reconciled (to truth), for those in bondage and in debt, in the cause of God, and for the wayfarer; (thus is it)
55 56 57 58
Qur'an,
are
42:40
Ibid.,
70:24-25
Ibid.,
3:92
Ibid.,
8:41
30
ordained
by
could
It
God...".59
be
also
discovered
injunctions of the Sunnah, limited
to
three
that
the
like those of the Qur'an,
categories only:-
(i)
seller
and
concerning
the
they depart (i.e. reject it)";50 (ii)
e.g.
is reported to have said:
the Prophet
"The
are
to establish and
emphasize the injunctions of the Qur'an, trade,
legal
buyer have an option before either to accept the deal or to
to examplify and elaborate that which has been
ruled
by the Qur'an,
e.g.
the Prophet is reported to have
said: "The
value
of
the
the
compensation to the family of hundred camels, ten thousand
person slain by mistake, as a or one thousand golden dinars, or dirhams of silver";61
(iii) is
to give a new rule in a situation where the Qur'an
silent,
e.g.
the saying of the Prophet on the
representation of the Muslim community
on
legal matters:
"The Mulims are their contracts,
(all) liable to the conditions of except a condition which legalizes an unlawful thing or a condition which illegalizes a lawful thing".62
This
59
Qur'an,
illustrates
how
the
Qur'an and Sunnah have
9:60
rr n
«•»
Reported by al-Bukhari, Muslim, Abu Dawud, Ahmad
ibn Hanbal,
Malik
ibn Anas and al-Darml
r I
DJ-
62
al-Tirmizi,
__
Reported by Abu Dawud,
Reported by al-Bukhari,
al-Nisai and Malik ibn Anas
al-Tirmizi and Abu Dawud
31
al-Nasai,
given broad lines to the tackling of the legal problems
leaving
much space to accommodate every sensible
so
legislation which considers public interest in the strict sense
of
the
word.
al-mursalah
has
useful
to
tool
a
In
this
the theory of al-masalih
way
It stands as a
great role to play.
faqih without which his potential to
a
solve
new
problems according to the Sharlcah could not
work.
The
Qur'an and Sunnah have not mentioned all
cases
known
answers
gives
to
scope
to
all
for
mankind and
thus
have
not
legal
given ready made
possible problems which could occur. a
mujtahid to find
questions of the society.
For
the
answers very
This
to the daily
nature of the
theory of al-masalih al-mursalah demands that a mujtahid consider
unrestricted
benefits
in
has
to
and
according to the intentions of the Lawgiver.
the
32
the
light
Chapter 2 THE
SCHOLARS
AS
POSITION TO
THE
OF
AL-MASALIH •
In
search
our
in
scholars
the
al-masalih
in
Islamic
OF
THE
THEORY
OF
position of the early Muslim the
application of the theory device
of
decision making
it would be useful for
us
to look
al-mursalah
Law,
MUSLIM
EARLY
AL-MURSALAH
•
connection with
of
the
for
THE
UTILIZATION
as
a
into
history of Islamic Law in order to find out the
attitudes
of
the
early Muslim scholars towards it.
Although the theory of al-masalih al-mursalah was by then known
not
as
a
technial
it
term,
was
actually applied in
general terms in the legislation of the Sahabah
(the
Prophet's Companions). After looking at this general application,
we
followers
the
between to
of
the
shall investigate the position of the Sahabah
Sahabah
and
who
were
those
who
intermediaries
the
after
came
them
so
as
complete the chain till the advent of the Imams of the
major schools of thought
2.1
A.
THE
POSITION
OF
(jurisprudence). COMPANIONS
THE
OF
THE
PROPHET
[SAHABAH] There that
the
several
Sahabah
al-mursalah
without
are
and
used
evidences the
istislah
the
justify the view
concept of al-masalih as
a
device
of
legislation
defining it. They have always looked for the
corresponding hukm (judgment) of which
which
took
cases
resembling those
place at the Prophet's time for issues which
Sharicah has
not
given
any
33
injunctions.
However,
if
they did net
ever
in
time
the
the
of
find anything corresponding to the
the
they in fact depended upon
theory of al-masalih al-mursalah for the enactment of
laws
although that theory had not yet been presented in
any
elaborate form.
not
hesitate
appeared to the
of
Prophet,
to
The Companions of the Prophet did
adopt and legislate
intention of
the
example of
al-masalih
cUmar
ibn
the
al-mursalah al-Khattab
blood the
in
fact
upon
his that
fell within the general
Sharlcah.
in
by the Sahabah is the verdict of
killing an
a
individual
verdict it
had
as
the
been
a
group
of people who
nullification
of
acquittal by virtue of them being arisen
human
so
much
decision.
of
the
a
his
basis
considered
have
Were
individual to be crime group,
a
and
an
then there
killing in the society and loss
rights, apart from the discarding of the law of
qisas which had been enunciated by the Sharlcah. also
cUmar
(in qisas).
the benefit of the preservation of people's
an
would
of people who had
group
participated together in killing as
range
theapplication of the theory of
co-operated in killing
depended
rule on whatever
a
benefit and had not been mentioned by
possess
Qur'an and Sunnah but
An
of
cases
would
insofar
as
killed,
a
That
have
meant
opening the door to such crimes
when
there
was
group
a
desire
of people could
for
come
somebody to be
together to kill him
knowing that reprisal would have only been taken against individuals
and
not
groups
(as was the case in the time
34
of
ignorance mentioned
not
in
his
the
jahiliyyah).
-
in
verdict
the
is
Nevertheless,
Qur'an clear
a
or
Sunnah.
So,
this rule is what
ctJmar did
example of the application of
theory of al-masalih al-mursalah since there is no
injunction in the Sharicah which commanded that, and is
evidence
B.
of
its
type on which analogy could be
to.1
applied 2.2
found
no
POSITION
THE
REGARDING The
TO
THE
Tabicin
TABICIN
OF
THEORY
OF
follwed
{THE FOLLOWERS OF SAHABAH} AL-MURSALAH*
AL-MASALIH •
the
•
path of the Sahabah in
applying the theory of al-masalih al-mursalah to
new
problems which they confronted. A conspicuous example of the
TabicIn's application of
the
method
of
which
Sahabah
the
cUmar
who
is
the theory in question is
ibn cAbd al-cAziz also
considered
(a great the
as
fifth
rightly guided Caliphs of Islam) used in solving problems,
follower of
the
so many
especially in returning people's possessions
(wealth and land)
to the owners after
unjustly by the Umayyad rulers. He
they had been taken
just content with
was
slight evidence of the wronged party to verify the truth of
his
claim
Without
any
to
property without going into
shadow of doubt, his method
was
details.2 based
on
the
theory of al-masalih al-mursalah.
1
See
2
Al-ictisam, vol. 2, p. 107; al-furuc cala al-usul, pp. 107-109
al-Shatibi,
Takhrij
M.A.Saleh,
op.
cit.,
p.
479
35
see
also al-Zinjani,
Another
al-masalih
cUmar
example of the application of the theory of by the Tabicin is also the
al-mursalah
cAbd Al-cAziz had established hostels
ibn
accommodate
travellers
way
to
throughout the seasons of the
2
This act
year.
neither practised at the time of the
was
Prophet nor even at the time of the Sahabah; idea
of
difficulties
C.
THE
THOUGHT
AS
After and
and
POSITION
of
in order
THE
must
fully
OF
OF
of
relation
schools be
IMAMS
THEORY
was
based
THE_SCHOOLS OF
AL-MASALIH
the
to
the
AL-MURSALAH
position of the Sahabah theory of al-masalih
examine the position of the great of
thought in Islamic jurisprudence
aware
of the general application of
theory under discussion.
Some ambiguities have arisen
identifying the viewpoints and the position of
Imams on
to
in
we
the
OF THE
examination
our
TabicIn
the
Imams
in
travellers'
the
ease
provide them with services
REGARDS
al-mursalah,
the
to
the theory of al-masalih al-mursalah.
upon
2.3
hostels
these
the whole
in
the
this
issue;
eg.
some
the position of Imam al-ShaficI
validity of al-masalih al-mursalah
as
a
device of
legislation, and the standpoint of Imam Abu Hanifah in
using istihsan in the place of the theory of al-masalih al-mursalah
&
M.A.Saleh,
4
M.S.R.
p.
381
in
most
of
op.
cit.,
p.
al-Buti,
Dawabit
his
expositions.
4
479 al-Maslahah
36
fl al-Sharicah al-Islamiyyah,
2.4
IMAM
{THE MALIKIS} AND AL-MASALIH AL-MURSALAH
MALIK
Malik
Imam
[d.
179/795]
is known
as
being in the
vanguard of those who apply the theory of al-masalih
istislah it
from
their
in
al-mursalah
legal transactions.
is mentioned the
first
the
one
to
Whenever associated
be
great Imams is Malik ibn Anas.
with
He was so
deeply drawn to this theory that he is even claimed to be the
elaborated
who
one
by
al-Shatibl.5
or
a
was
Malik
mujtahid who indebted
al-mursalah
in
-
as
legal principle as noted
a
that an interpreter of Sharlcah
saw
versed in Sharlcah and its origins
was
the
to
it
knowledge of the theory of al-masalih
order
to
distinguish between different
types of benefits and have a clear conception that any benefit
which
intention
is
conflicts
with
cancelled.6
the
Imam
permitted the imprisonment of a
judge through analogy to be
Sharlcah
Malik
is
its
or
also
said
to
have
suspect who is thought by
a
guilty.7 Imprisonment is
a
heavy punishment and should not be applied to a person
just by saw
simple accusation.
a
that
the
considered
attainment
the
of
Nevertheless,
Imam Malik
justice is paramount,
imprisonment of
a
and he
suspect was a means of
attaining this justice.
5
See
al-Qatafi,
142-144;
vol.3, 6 7
p.
Malik,
Tanqih al-fuhul
in al-Dhakhirah,
66
Al-Shatibi,
Al-ictisam,
M.A.
op.
Saleh,
vol.
1,
pp.
by Abu Zahrah, p.290; Al-rasail by Husain al-Khidr,
cit.,
p.
vol.2,
p.114
481
37
Maliki
The
al-masalih
school
in
funds
purposes. the
in
al-mursalah
being threatened by of
has
the
an
applied the theory of the
enemy
question of while there
a
Muslim land
was
a
deficiency
exchequer to prepare soldiers for defence
A group of Andalusian scholars has
resorted to
public benefit side of this issue and has produced
verdict
a
allowing the leader of the country concerned to
put extra tax on the rich people in order to equip the army
with the
armament for the defence of the
necessary
country.
This tax
poor-rate
(zakat) which is compulsory and required by the
Sharlcah.
Those
danger of
a
considered
foreign attack, preserve
Another
case
where
al-mursalah
prisoners of field
a
the people's independence was a
Malikis
the was
when
hindrance
action would
prisoners of to
8
the
between
allowing the shooting at the that
the
fact
war that
Husein al-Khidr,
repel the
to strengthen the state's
applied the theory of enemy
end
who if
up are
the
—
Al-rasail,
army
put Muslim army
him and
The Maliki school gave its verdict
army.
to
in the front line of his
war as
that
the legislation of an extra tax.
strong reason for
battle
in addition to the ordinary
scholars
security and to
al-masalih
was
of
an
the
on
the
Muslim
in this issue enemy
even
if
with killing those Muslim the front
at
Muslim army
vol.
3,
38
p.
67
line.8 This
was
ceased to shoot at
due
the
of the enemy because of the fear of killing
army
those Muslim to
cause
captives,
great harm to the Muslim army and to the
a
people as a whole. situation order
to
2.5
THE
REGARDS
the public benefit in this
So,
with
lies
the
killing of those few Muslims in
save
the
lives
the
two
evils.
of
lesser
the enemy would use this loop-hole
POSITION
OF
AHMAD
the
IBN
be
the
second
person
theory in legislation, consider
it
as
legislation.9 Ibn
Imam
could and
is
of
one
Hanbal
that
Thus,
Imam
Ibn
which
maslahah
within
Qur'an,
the
that
al-masalih al-mursalah
was
M.A.
Saleh,
op.
ijmac
Sunnah,
recognized by him
special meaning.
a
as
a
basis
for
In this case the the
enactment
even
-
ijmac and qiyas. before
the
specification of
descriptions and terminologies in the field of the
9
of
for their argument is that
general origins of the Sharxcah
Sunnah,
However,
devices
incorporated in the general term of
was
considered
was
is considered
in applying this
Hanbal's
the maslahah which
analogy to formulate
the
Imam Malik
reason
considered
241/855]
only come within the terms of Qur'an,
qiyas.
rules
[d.
Hanbalite scholars do not
some
The major
{THE HANBALIS} AS
AL-MURSALAH
•
after
the
i.e committing the
-
HANBAL
•
Although Imam Ibn Hanbal to
many
OF'AL-MASALIH
THEORY
THE
of
cit.,
p.
482
39
of
i.e
marhalat
Islamic
of
structure
al-takwin
jurisprudence which
(the period of formation),
generally taken to encompass the
time
the
second
of
the
came
a
wide
range
after analogy
of meanings at
beginning of the period of the Imams in
century of Hijrah. Most of the Hanballs
including Ibn Taymiyyah and his student Ibn Qayyim detailed
attention
emphasis
on
Sharicah
was
to
analogical issues. They put
gave more
the general objectives and intentions of the
and
attempted to give definitions
upon
which
legitimate analogies could be based and from which
judgments would intentions
of
which emanated from the
emerge,
Sharicah.10
the
Among the examples of the application of the theory of
al-masalih
that
which
case
of
the
the
the
Sultan
God.
reported to
us
by Ibn Qayyim in the
doubt
on
the
casts
he
be
does
ruler
seen
be
punished by the
and the ruler should make him repent to
repents for it,
the
Ibn
Ibn
of
Imam Ibn Hanbal considered
action must
that
truthfulness
here
well and good,
but if he
is obliged to repeat the that
the
punishment.11
demanding of repentance and
repetition of the punishment by the ruler is
Badran,
so
who
who
(ruler)
If
can
the
11
been
one
one
doesn't,
1®
has
by Imam Ahmad ibn Hanbal is
Companions of the Prophet.
that
It
al-mursalah
Qayyim, Iclam Al-muwaqqicin, vol. Al-madkhal,
p.
Qayyim, op.cit.,
138;
Abu Zahrah,
vol.4,
p.
1, pp. 29-33; cAbd al-Qadir Ibn Hanbal p. 297
377; Abu Zahrah,
on
40
a matter
Malik,
p.
300 and
of
the
application of the theory of al-masalih
al-mursalah
for that
(nass) is
since
just done from
Ummah
as
neither
a
binding ordinance
is there any evidence from qiyas.
nor
so
is
there
to preserve the unity of the Muslim
disintegration and in order to appreciate the
position of the Sahabah who passed the Sharicah Muslims to
from
the
Muslims
the
needed
be
to
allowing the ruler to forgive
attained
by meting out
a
responsible for it
person
stipulated by Imam Ibn Hanbal.
2.6
IMAM
ABU
AL-MASALIH •
would
consider the
their
name.
name
the
devices
that
But
for
seem,
AND THE THEORY OF
at
first,
that
the Hanafls
theory of al-masalih al-mursalah of
the
what
as
does
truth
is
amounts
[d.
not
mention
that to
the
the
this
two
one
of
theory by this
difference
same
is
technique.
only in the In fact
Imam
150/767] puts forward the doctrine of
(equity) and considers it
as
one
of the bases of
legislation. Muhammad ibn al-Hasan al-Shaybani the
do not
legislation in Islamic Law due to the fact
school
Hanlfah
istihsan
{THE HANAFIS)
HANIFAH
AL-MURSALAH
•
It
Abu
to the
In doing so there is maslahah
Prophet.
which
on
punishment to prevent such disintegration and not
severe
as
It
great companions of Abu Hanlfah)
"The
(one of
says:
companions of Abu Hanlfah were at loggerheads with him (i.e Abu Hanifah) when dealing with analogical issues but when he talked of istihsan no one quarrelled with him any
41
.12
more"
about
of
binding
nass
in
be
found
drawn
are
is
used of
from the Qur'an of
in most
in
maslahah
that
qiyas,
either
were
utilization are
built
which from
do
the
not
for
Thus it
(maslahah).
the
the sole basis and
objective
be
of
or
because customs
people's life. Thus, the Hanafi
found that,
analogical issues based
name
of
customs
place,
ijmac
shed light on the
of
one
or
within the Hanafi School
full
in
with any
Sunnah
or
by Abu Hanifah,
benefits
cases,
conflict
Qur'an
scope
maslahah
in most
would,
from the Sunnah,
or
It is appropriate to mention here
given great
of
situation void
a
intentions
the
Customs as they are
system.
in
i.e the attainment of benefits and the
customs
ordinances
inference
supplementary rules which
of
terms
prevention of injuries. also
the
talking
was
the criterion used on
public benefit of
strong
a
for the method of istihsan,
up
Sharlcah,
the
of
strong inference,
a
favour
that
selection
Indubitably,
weak one.
a
of
would
which Imam Abu Hanifah
the
on
selection a
is
based
was
against the
istihsan by
the
Now
on maslahah
and the
name
it
books
are
but using the of istihsan in
another.
If maslahah
we
go
as
1
was
dealt
with
—
M.A.
p.
it
deeper into what
Saleh,
we
have discussed about
by Imam Ahmad ibn Hanbal we
—
Masadir al-tashric al-Islami
484
42
wa
manahij al-istinbat,
find
th it
the
at
beginning of the four great Imams'
he term "maslahah" did not attain a precise and a
period
standard definition, Hani,fah
Abu
laid
This
deduction.
but
find
also
that
an
that
the
theory of al-masalih in
role
enormous
the
analogical
methodology of Imam Abu Hanifah provided that
particular maslahah did not ordinance
from
Hanifah could advocates
of
the
be the
Qur'an
or
considered
Sunnah. to
term
be
one
theory of al-masalih
"istihsan"
instead
of
Among the many examples of
a
into conflict with
come
according to the analysis given above the
Imam
great emphasis on the process of means
al-mursalah had
further
we
Thus, of
any
Imam Abu
the
great
al-mursalah even
al-masalih
though he used
al-mursalah.13
Imam Abu Hanxfah's
application of the theory of al-masalih al-mursalah in his
analogical deductions is his verdict to take the
value
of
produce before its production without fixing a
a
particular period; deal
for
changes to a normal transaction where a reservation exchange in commodity and its value has to be
observed,14. See
14
pp.
So,
the consideration of maslahah
in making
Al-ictisam, vol. 2, p. 324; Abu Zahrah, Abu Mustafa al-Zarqa', Al-madkhal al-fiqh al-cam, vol.
al-Shatibi,
Hanifah, 1,
but once the duration is fixed the
p.
372;
60-76
in "Badaic Al-sinaci" by al-Kasani, vol. 4, p. 223, period is fixed for the produce, it becomes a normal transaction whereby a condition of exchange should be stipulated, i.e taking the value for the goods hand in hand; and this is what Abu Hanifah says" "if
It
a
is
noted
certain
43
the
people's affairs and transactions simple is the sole
basis
of
the
verdict
of
Imam
Abu
Hanifah
in
the
above
case.
Another the
example in which Imam Abu Hanifah applied
theory of al-masalih al-mursalah by the name of
istihsan
was
his
view of
holding
a
sharing employee
responsible for damage occurring in his work. This even
had
as
was
so
though the work of this employee differed from what been
stipulated in the agreement between him and his
employer;
except that which was damaged without his
intention
eg.
by theft
or
death.
In that case he had to
produce evidence for his claim, and his word would not be accepted except through that evidence.
reported by al-Sarakhs! the
Hanafi
school
"If
a
Abu
Hanifah,
This
was
what was
(one of the great propounders of
system)
when he said:
sharing shepherd herds sheep, according to he is responsible and liable to pay for any damage caused by him to the sheep since the participating employee is responsible for ".15 what he does with his own hands
It
is
noted
example,
here,
has
been noted
a
the
of
maslahah
for
the
sharing employee bases its foundation the
-
Al-Sarakhsi,
on
people and the necessity of these
development and the prosperity of their
lives.
is
in the previous
that the case of the responsibility and
liability of
demands
as
-
Al-mabsut,
vol.
15,
44
p.
161
2.7
IMAM
{THE SHAFICIS}
AL-SHAFICI
AND THE THEORY OF
AL-MASALIH AL-MURSALAH •
•
It
due
was
204/819]
standpoint of Imam al-Shafici
the
to
in regard to istihsan
his
books:
has
come
al-Risalah,
in
(nullification of equity) that
this
Imam
al-mursalah
as
Nonetheless, al-ShaficI
did a
the
is
not
of
Ibtal
device
of
legislation in Islamic Law.
istihsan which has been denied by Imam the
as
same
we
that
as
which
al-mursalah.
istislah
al-mursalah.
as
Moreover,
(public good)
What
Imam
has
been
applied
have seen when we talked about
legislation to which Imam al-ShaficI neither
al-Istihsan
that made many people believe
standpoint of the Hanafi school al-masalih
manifested in
accept the theory of al-masalih
not
by Imam Abu Hanifah the
as
al-Umm and especially that which
entitled
book
the
(equity)
[d.
nor
regards the theory
the method of was
opposed
was
al-masalih
al-Shafici opposed was
"the
following of lusts and passions which result in going astray from the ordained injunctions
innovating laws which Qur'an came
or
his "He
Sunnah famous
who
laws".16
^
or
(nusus);
and
not decreed by either
are
ijmac
or
qiyas"; and for
the
this
utterance:
applies istihsan is really innovating
Al-Shafici, Al-risalah,
p.
186
45
reason
However,
we
learn from
statement of
a
one
great disciples of the
Shafici school system
al-Haramayn al-Juwayni
(d.
478 A.H.):
-
of
Imam
"that he who
al-Shafici's explanation will find that he
follows
the
(i.e
al-Shafici) accords judgments with public benefits; and whenever
find
doesn't
he
accordance
that
he
turns
to
principles of resemblance". Al-Juwayni went further by elucidating that whatever al-ShaficI stipulated in his
judgments, al-masalih al-mursalah
its equivalent is
or
innately envisaged. Al-Juwayni also added, and
of
most
the
Hanafi
school
"al-Shafici
system embrace the view of
attaching judgments to the theory of al-masalih with
al-mursalah
sole
dictum
dependence
circle That
is
of
condition
of
suitability to the
benefits".17
considered
The
the
the
that
on
al-Shafici
was
opposed to was the
benefits which did not fall within the
Lawgiver's
common
usage
and acknowledgment.
why we see Imam al-Ghazali saying in this
connection:
"Every benefit which does not preserve the understood from the Qur'an, Sunnah and ijmac, itself being one of the alien benefits which do not agree with the intentions of the Lawgiver, is void and nullified; and the one who resorts to it has already made himself a lawmaker (i.e. a rival with God)".18 intention
The
17 -1-®
thing which Imam al-Shafici recognizes in the theory
Al-Shawkani,
Al-Ghazali,
Irshad Al-fuhul,
Al-mustagfa,
vol.
p.
242
1,
p.
46
310
of
al-masalih al-mursalah
the
considered
benefits
is
therefore
which
Sharicah and the enactment of which
terms
accepted In
and
a
have
not
been
are
dependence of
a
accepted by the
laws
connected
considered by
with
them
in
the Lawgiver as
cancelled.
or
the
7th
of
member
al-zanjanl
century A.H a scholar of Arabic Language Shafici school,
Shihab al-Din Muhammad
(d.656 A.H.), presented the position of Imam
al-ShaficI
regards the theory of al-masalih
as
al-mursalah
by the following words:
"al-ShaficI held the opinion that
it is right to
steadfast to the benefits which have reference to the general principles of the
hold
Sharicah
even
though not closely connected to a
particular section of this
Does
not
al-masalih
mean
the
al-mursalah
it".19
utilization which of
of
course
the
is
theory of a
principle not
closely connected to a special part of the Sharlcah?
of
One
the
examples in which al-Zanjani gives to
explain al-Shafici's acceptance of the theory of al-masalih
killing
group
"
in of He
is
his
adoption of the idea of
of people who have killed
by cUmar
decided
as
19
a
al-mursalah
an
individual
ibn al-Khattab. Al-Zanjani
says:
and this
killing a group of people for one person case, according to al-ShaficI, is an act aggression and injustice in its true sense".
still
goes
Al-ZSnjani,
further elucidating the point by saying:
Takhrij al-furuc cala al-usul,
47
p.
169
if similarity
"Truly,
the whole
case,
were to be observed in this issue would result in
blood-shedding and massive killing. Whereas the practice commanded by the Sharicah is to kill a group of people for a group like it, and an individual for an individual; nevertheless, wait for such an occurence would render the
to whole
practice unjust and inapplicable. The justice in this case is therefore to apply severity to the wrong incurred; thus, to kill a group of people who have killed an individual is an obligatory act in order to repel a gigantic injustice. In so doing a public interest which has not been enunciated by a particular principle in the Sharlcah
is maintained.
benefit
The
is
neither
injunction of the Qur'an nor the Prophet; but it has only depended upon the general outlook of the Sharicah i.e to safe-guard its canon and rule from the danger of massacre, to exaggerate its detestation towards unjust killing and to preserve mankind from anguish and annihilation". dependent
upon an Sunnah of the
Al-ZanjanI
goes
further saying:
"Daily happenings know no boundaries and so should their rules and judgments; and to confine oneself to particular principles from which restricted meanings and causes are derived would that
mean
the
use
should
nothing could face the extremist except
of similar methods. Therefore, there be another methodology of accomplishing
particular rules in a general mode though not connected to a particular principle; and this is possible only by the general utilization of benefits
attached
to
the
Sharicah and its
intentions".20
example whereby Imam al-ShaficI applied the
Another
theory of al-masalih book
Al-umm
concerning witnesses'
testimony. He "If
in
testify that
—
Al-Zanjani,
renouncing their
says:
witnesses
_
al-mursalah is as mentioned in his
op.
cit.,
pp.
170-71
48
a
man
divorced his
wife
times
three
that
judge revoked the marriage; then the witnesses renounced and abandoned their testimony, the judge had to impose a fine on them an amount equal to the wife's required nuptial gift(if the husband had had a sexual contact with her), but if he hadn't had any sexual contact with her, the judge will fine them an amount equals to the half of her required nuptial gift. This is because they have forbidden her deserves
so
from her
a
husband
and
therefore
she
equal to her required nuptial gift. The judge should not inquire into the actual amount given by the husband (at the time of marriage) as nuptial gift whether small amount or large, but he should rule according to the amount cherished by the jurists (i.e an amount equal to another woman's required nuptial gift who is of her status), and so he should make a decision on that value".21
It
can
amount
an
be
noticed here
by Imam al-Shafici in the the
witnesses
is
the
that
what
process
has
been
observed
of imposing a fine on
dependence of the benefit of the
wronged husband, and this benefit lies within the circle which
the
Lawgiver demanded to be preserved and
considered;
depend this
on
way,
those
who
in his
an
even
though this particular benefit does not
ordinance from the Qur'an
or
Sunnah.
applied the theory of al-masalih
interpretations of
GENERAL At
21
Imam
in
Imam al-ShaficI can be reckoned to be one of
number of
a
al-mursalah
cases
recorded from
him.
2.8
So,
this
CONCLUSION
point
al-Shafici,
we
OF
are
Al-umm vol.
FOUR
THE
IMAMS'
ATTITUDE
able to summarise the
7,
p.
49
50
fore-going account of
Imams
the
follows: That the four celebrated
as
school
systems,
Malik, Ahmad ibn
viz.
Abu Hanifah and al-Shafici,
Hanbal,
as
noted from their
expositions and impressions, do accept the theory of al-masalih al-mursalah Islamic Law
as
a
of
means
legislation in
inspite of their difference in the method of
application and degree of utilization. Everybody gives it a
different
As
name.
we
have
al-Zanjani
seen
propounder of the Shafici school system) killing of
a
of people for
group
an
(a
considered the
individual
as
an
application of the theory of al-masalih al-mursalah in al-Shafici's
judgments, whereas the Hanafis take the
decision
upon
but
the dependence of istihsan
same
(equity).
Although the judgment given by both of the school systems is
the
one,
name
given to the methodology is
degree of dissimilarity,
A
amongst these Imams the
however,
ibn
Ahmad
Hanbal
is observed
in the extent of the utilization of
theory of al-masalih al-mursalah;
paramount one is
different.22
Imam Malik after
ibn Anas,
which
come
the
the leading and the
followed by Imam two
Imams
Abu
Hanifah and al-Shafici.
prominent example of those who explained this
A
issue
22
See
is
Ibn
Daqiq al-cId (an apologist of the Shafici
—
al-Sarakhsi
detailed
in
his
book
Al-mabsut,
discussion
50
vol.
26,
p.
126,
for
a
school
system)
"The the
truth
who said the following: without
is
doubt
that
Imam
Malik
is
most
likely person (to apply the theory of al-masalih al-mursalah) of any of the Imams. After him follows Imam Ahmad ibn Hanbal; but this does not exclude the other two Imams in the •
•
general application of the theory, except the former two Imams have a preference for its utility and application over the latter ones".23
Al-Qsraf! said
(an apologist of the Malik!
school system)
regarding this issue: "There are some people who oppose the theory of al-masalih al-mursalah, nevertheless, you will see them in their derivations (of laws) give account for absolute benefit without inquiring from themselves about the process of deduction and generalizations to produce evidence for such
consideration, but they depend solely on the proportion and suitability (of the cillah (cause); and this by itself is a real application of the theory of al-masalih al-mursalah".24 a
23 24
144
Al-Shawkani, Al-Qarafi,
Irshad al-fuhul,
pp.
242-43
Tanqih al-fusul muqaddimat al-dhakhirah,
vol.
1,
p.
Chapter DEVELOPMENT
THE
OF
THE
3
LEGAL
UNDERSTANDING
OF
MASLAHAH
3.1
LEGAL
A.THE
DEFINITION
Muslim
The
•
•
OF
MASLAHAH
lawyers have differing definitions of
maglahah and its specifications. the
word
"maslahah"
denotes
To al-Ghazali
(d.
1111)
"obtaining benefit and
preventing injury". He goes further adding after that, "We do not mean by interpreting maslahah as obtaining benefit and preventing injury only because
these
welfare
in
human
are
human
aims
concerned with
human
terms
only, whereas what we actually mean by maslahah is the preservation of the
aims
of
the
Shariuah.
aim of
The
the
Sharicah
in
regard to man is fivefold: viz: (i) to preserve his religion, (ii) to preserve his life, (iii) to preserve his mind (reason), (iv) to preserve his offspring, and (v) to preserve his material wealth. Everything which secures the preservation of these five elements is a ma slahah, and everything which jeopardizes them is a "mafsadah" (injury), the prevention of which is _
maslahah.1
a
It
could
difference the
of
be
between
definition benefit
intention which
said
and of
the
that
there
is
no
clear
cut
general meaning of maslahah and
given by al-Ghazali, because the obtaining the
the
prevention of injury is the real
Sharlcah.
Still,
there is not: anything
brings benefits and repels injuries that is not
encompassed in the intention of the Sharicah and is
1
A.M.
Reform,
al-Ghazali, pp.
Al-mustasfa,
vol.
92-93
52
1,
pp.
286-87;
Kerr,
Islamic
directly
or
indirectly connected with religion,
mind,
or
offspring,
or
it
does
or
life,
material wealth. Nevertheless,
or
happen that an individual person considers a
not
thing to be beneficial to himself while the Lawgiver it
considers in
Qur1
the
the
other
way
round? We read,
for
instance,
an:
"Fighting is prescribed for you, and ye dislike But it is possible that ye dislike a thing which is good for you, and that ye love a thing which is bad for you. But God knoweth and ye know not".2 it.
On
the
maslahah "It
other
hand,
al-Khwarizml
(d.850)
defines
by saying: is
the
preservation of the objective of the injuries to human beings".3
Sharicah to prevent Maslahah
the
or
Sharlcah does
preservation of the objectivity of the only mean the prevention of injuries to
not
human
beings because this is
other
aspect which is equally important
side the
of maslahah Islamic
-
the
2
3
Qur'an,
aspect of it only.
The
is the positive
obtaining of benefits. Although
juristic principle has stressed the
prevention of injury by saying:
one
more
than the attainment of benefit
"Prevention of injury precedes the attainment
2:216
Al-Shawkanl ascribed this definition
to
al-Khwarizmi
in
his
book
213; Jamal al-Din al-Qasiml mentioned it in his commentary on the treatise of al-Tufi on masalih [Al-manar journal, M9, p. 747] without ascribing it to its auther; while the author of "Taclil Al-afrkam" has ascribed the definition to its auther but has "Irshad
not
Al-fuhul,
notified
p.
from which
reference
he
53
quoted.
See p.378 of
Taclil
of
benefit",
in reality they are two different
altogether and is
considered
be
and
nonetheless it
(d.660/1263),
that they
complementary.
as
in defining maslahah
However, al-Salam
same;
in order to understand them both,
necessary,
should
therefore not the
are
things
cIzz al-Din ibn cAbd
the Egyptian scholar,
puts a check
says: "He
who
wants
and
the
injuries,
the
weak,
has
visualization mentioned the
know
to
the
the benefits
rights,
strong amongst them as well as to review his mind with a
why the Sharlcah hasn't or judgment of a particular problem he is confronted with inspite of the fact that the Sharlcah manifested rules in which every single rule demands the subservience of human beings to their Creator and has not necessarily informed them of the benefit or injury of a thing in particular".
Then
he
goes
solution
to define benefits and injuries
on
"Benefits
to
as
are
four
kinds:-
their
and
needs
and happinesses and their causes.
causes;
Injuries
are also of four kinds:- pains and worries and their causes".4
causes
Elsewhere, benefits
real
"Benefits and of
the
are
4
I.
are
a
not
means
and
the
two
types:
inflict
allegorical real
Sometimes the commanded
are
they are injuries benefits,
such
cAbd al-Salam, Qawacid Al-ahkam, vol.
54
says:
(happinesses and desires),
injuries, they
secure
in which he
ones
(their causes).
because to
and their
cIzz al-Din ibn cAbd al-Salam discusses
allegorical
benefits
allowed,
saying:
or
"per se" but they
as
1,
causes
the amputation of
pp.
9-10.
thief's
a
before
the
the
all
meant
to
attain
they are
and security which is in
attain benefits
-
such
as
one
way
killing
deporting the unmarried adulterers etc. All
or
real
benefits, it
the one
benefits,
"ends"
Muslim
first
that
is
really
meant.5
lawyers have defined maslahah in this way
seven
centuries,
whereby they did not
general standard definition.
definition
difference
in
exclusively result
and they are called allegorical
although this seems to be calling them "means"
is
The
the
nonetheless,
injuries have been legalised in the Sharicah to
these
for
injury,
stoning the married adulterers and
transgressors,
when
the
legal punishments which are in actual fact
attain peace
to
other
lashing
to
protect people's wealth and the warning
pleasant due to their
enforced or
to
jihad to protect people's lives. As is also
with
case
not
hand
in
of
maslahah
their
.6
views
has
about
also
Their difference reflected
benefits
agree
on
the
inclusively
or
But this situation is not a necessary
every
condition.
Inspite of the difference of
opinion of these scholars in considering "public interest"
as
differ
the
5
Ibn
in
a
device of
decision making,
they never
recognition of benefit wherever it existed
cAbd al-Salam,
op.
cit., p.12
^
It is meant by this elaboration that what the Muslim lawyers have pointed out about the difference of Imams in the decision making process by putting into account "public interest", is that their difference is mainly caused by the specification of its indications.
55
and
did
From
it
Muslim
the
with
injury.
passion,
is it
nor
(i)
lawyers we learn:
however defined,
(benefit), a
confuse
not
is neither
that maslahah
sheer desire nor
a
personal objective;
a
and that is
why al-Ghazali insists that maslahah is the preservation of
the
intention of
the
prevention of injury is benefit
since
both
of
Shar1c<3h3 as
(ii) that the
important
which
as
constitute
the obtaining of
collectively the
meaning of benefit. This does not contradict with al-Khwarizml's the
of
restricting his definition of maslahah to
prevention of injury only, because the preservation the
intention
of
the
Sharicah already considers
positive aspect of benefit Perhaps,
all
and
and
(iii)
every
benefits
indirectly, viz:
negatively
that
sense
a
directly
that
or
life, mind, offspring and material wealth.
difference
scholars
in
that
benefit
whether
has considered
(God)
to the preservation of the five fundamentals,
no
and
to include within its
the Lawgiver
connected,
is
a
as
benefit in the Sharicah in
are
religion,
There
so
the objective and not to confine the intention
therein; each
i.e obtaining happiness.
-
this consideration has prompted Khwarizmi to
define maslahah canopy
the
and
whatsoever
of
whatever
therefore
opinion between the Muslim preserves
must
be
these fundamentals is
taken
into
consideration,
jeopardizes them has to be eradicated.
56
3.2
B.
AL-MASALIH
AL-MURSALAH
AS
A
MEANS
OF
DECISION
MAKING
has
It
already been noted that the theory of
al-magalih al-mursalah that
is
the
Sharicah is
for
social
utility, and its function
promote benefit and prevent evil.
to
Imam Malik
that
its origin to the conception
owes
one
of
and
names
the
approved the idea of public interest decision
of
means
this
new
device
According to MacDonald, al-mursalah,
cAbd al-Rahim,
it
is
somewhat
deduction
He
of
making in the
as
Shar!ce»h
al-mursalah".7
"al-masalih
the theory of al-masalih
corresponds to utility, while in the words
of
(istihsan).
As we have seen
the author
similar
juristic equity
or
preference
that Imam Malik would allow
says
law
to
of Muhammadan Jurisprudence,
be
to
based
public good. But it does not
on
a
general considerations of
appear
that the Malik!
jurists took full advantage of this principle, and it would
seem
Hanaf!
that
doctors
many
followers of that school like the
consider
the
doctrine
general to be useful in making legal
this
to
be
too
vague
and
deductions".8
interpretation of the text, according to
Ijtihad
or
theory,
is to consider the underlying
or
hidden
meaning of the revealed text in the light of the public interest.
^ O °
Abu
Qiyas
Zahrah,
(analogy)
Malik,
p.
is the primary method of
290
—
A.
Rahim,
Muhammadan Jurisprudence,
57
p.
166
tracing the effective is
cause
similar is
not
are
but
claimed
the difficulty arises when
The Orthodox Caliphs,
apparent.
have
to
resorted
discover
the
cause
words
the
revealed
of
traditions
of
the
with
reason
similar nature.
a
If the
apparent it will be admittedly extended to cases;
demands
of
cause
the
with
to
reason
reference
text,
to
the cause
in such and
the
the context
a
tried
case, to
meaning of the and the
Prophet. The application of this theory
interpretation of the text according to regard primarily to social utility. Here lies
the
major difference between the principle acted upon by
the
Orthodox
known
Cailphs and the
"hikmah"
as
use
of independent judgment
(act of wisdom).
theory base their
"qiyas"
or
Thus the users of this
analogy on "hikmah" which
they call the underlying reason of the text. (cause)
is therefore replaced by hikmah in this theory.
"Modern
convey the
rational
Kerr,
scholars,
says
Kerr,
are
anxious to
comprehensibility of the hikmah and its the
promotion of man's material interest.
lost,
we
In
the distinction between hikmah and cillah is the
must
latter
term
being employed to
former".9
meaning of the
Here
g
to
process
sometimes the
Muslim
the humanism of the Sharicah and tend to emphasize
relevance
this
"cIllah"
refer
Islamic Reform,
p.
to
the
67
58
twentieth
century
cover
cAbd al-Wahhab Khallaf who emphasizes the
commentator, social
utility of Sharicah. He draws cillah and hikmah.
between
only be suitable
a
sharp difference
"cIllah", he
says,
must not
(munasib) but also objectively
recognizable
(gahir) and clearly defined (mundabit);
hikmah
these
true
is
lacks
motive main
the
cillah will with
what
for
qualifications, yet it represents the
(God's)
enactment of
thing and the underlying serve
no
purpose.
the ruling.
Hikmah
without which
reason
TViUS/ Vie equates hikmah
al-Qarafi referred to
the
as
"promotion of
benefit".
In
of
to
show
the
difference
between
ruling and its hikmah, Khallaf gives
a
the
order
Qur'anic
an
the
cillah
instance of
verse:
"(Fasting) is for a fixed number of days, but if of you is ill, or on a journey, the prescribed number (should be made up) from the days later".10 any
Relief while
from
hardship, according to him,
travelling
or
cause.11
illness is the
to
ignore the fact that hikmah in this
in
cillah and not
to
exist
cause
is
without
10 11
if the
the
separate from it,
cillah is
taken
ground of action,
hikmah
it
would amount
Qur'Sn, 2:184 Khallaf,
Masadir,
p.
49
59
is the hikmah,
case
But he seems
is implicit
because hikmah ceases
away.
Besides, cillah
or
if it is considered to be to
folly.
Therefore,
cillah
hikmah,
covers
and the
interpreter has to take
into consideration cillah which the
revealed
is
He
the
ruling
so
as
is
the
effective
cause
to extend it to similar
of
cases.
primarily concerned to identify the hikmah of
not
but to identify the cillah that occasions the
ruling,
ruling.
Relying certain
the hikmah,
further
more,
would lead to
legal judgments being contradicted by the
conclusions for
on
of
consensus.
The
prohibition of adultery,
example, might be ascribed to the hikmah of the
necessity to protect genealogy; but would
be
on
this basis, it
logical also to prohibit intermarriage between
persons
of unknown parentage, which by consensus is not
in
the
fact
case.
The
hikmah,
in other words,
is
an
unacceptable criterion for judgment because of its generality and uncertain character; therefore
reliance
on
it is
presumptuous and likely to lead to
distortion.12
3.3
C.
THE
THEORY
OF
The
aloof
as
MAIN
an
which helps
Kerr,
IN
THE
APPLICATION
theory of al-masalih al-mursalah
(judgment)
12
RESERVATIONS
OF
THE
AL-MASALIH AL-MURSALAH
op.
does not stand
independent device of decision making
in Islamic law.
It
is
interpreter
or
a
an
cit.,
p.
74
60
a
supplementary tool
mujtahid to make
up
his
mind
in
the
which
for
cases
the Qur'an
of judging or giving verdicts to
process
clear
no
Sunnah.
or
ordinance
cut
is
specified in
the Muslim scholars have
So,
stipulated conditions and reservations in order to guide the
interpreter
the
right decision and reach
mujtahid
or
that he would arrive at
so
safe conclusion in the
a
of his decision making through the help of the
process
theory of al-masalih al-mursalah, hinder
him
from
judgment,
same
time to
attacking the Qur'anic and Sunnah
injunctions and keep him reservations
and at the
are
from perversity.
away
follows:
as
(i)
The main
He should not build his
in which he finds public interest,
upon
anything which has been abrogated by the Sharicah, excludes
that
the
from
case
circle
of
public
interests.
This
verdict
Yahya ibn Yahya al-Laythi who thought of a
of
will
the
since
be
shown
later
to
public interest which conflicted with
injunction and should not
a
be
was
result
a
of
result
Qur'anic
a
(ii) The benefit
therefore cancelled. of
a
well
established
probable proposition
a
apply to the
or
principle and of fanciful
imagination. A typical example of this condition is, for instance,
take away the
to
marriage from wife; the
right of divorce in
an
Islamic
husband and vest it in the hands of
a
a
which is in clear opposition to the ordinance of
Qur'an
interest
in
(2:230-32); this
simply because
case
any
so
and
it is not considered therefore
is
invalid.
benefit which conflicts with
61
a
public This any
is
injunction whether in the Qur'an void.
mode.
manner
rule
A
individual
or
or
individuals; the
all
a
and
should
in
law
should be
because
one
the
are
world
Sharicah
For
reserved
in
the
that
recommended the
a
particular
established
for
or
for
an
specific
a
important qualities
the most
for
eyes
reason,
prescribed to suit and include No
a
reservations
special
(believers)
of people,
are
an
Muslim
prisoners of
war
scholars
case,
enemy even
equal before the
who shields himself though that action
killing of those Muslims. This is due to
have
established
that
the
enemy
The
is,
to be attacked except where the danger
general and reaches all the people. encircle
the
all the
the Muslim scholars have
attacking of
the
privileges
of the Lawgiver.
the
mean
group
or
dependence of public interest in this issue.
Muslim any
of
over.
responsible human beings
the
not
particular family
Sharlcah
the
mankind
would
is
Islam
in
deemed
legislating nature of Islam is universality. The
in
with
be
not
a
but it is generally promulgated for all
group,
laws
rendered
(iii) The benefit should be observed in
universal
of
Sunnah is
or
enemy
within
in
is
Were it possible to
fort to stop him from
a
endangering Islam and the Muslims present within the region of this fort, on
then it
is not recommended to depend
public interest to attack the
62
enemy
and
cause
death to
Muslim
those common
qiyas.
rules
a
where
case
al-mursalah
neither
should there
benefit,
it
be
is
there
no
conflict
with or
a
ijmac
be
except when we fail to find direct
from
these
(v)
equal to it in preference.
should
be
criterion
a
distinguished by
as
sources,
The benefit
superseded by another important benefit
standard which
The
object of
an
apply the theory of al-masalih
ordinances
or
should
that
is
It
For we do not need to turn to the theory of
al-masalih
nor
to
(iv)
injunction whether from the Qur'an, Sunnah
clear or
to
sense
al-mursalah
war.13
prisoners of
is
mujtahid,
a
agreed
by which
upon
a
This
means
certain
may
be assessed.
by most of the Muslim
jurists and scholars is the consideration of benefits according to the order of the five fundamental principles of
aim of
the
the
Sharlcah
in
regard to
man;
viz: The
preservation of his religion, his life, his mind,
his
offspring and his material wealth. If needs
be
selected
suspended, assessed the
benefits
two
value
come
while
into
the
conflict
other
is
discarded
one
of
them
or
the two benefits should be examined and
in of
three each
(i)
aspects:benefit
in
to have a clear vision of
respect of
(ii)
to have a general understanding of
each
benefit's
1 o
utilty; and (iii)
their importance; the extent of
to have a clear
„
M.A.
p.
where
Saleh,
Masadir al-tashric al-Islami
485
63
wa
manahij al-istinbat,
of
assurance
their
whether
results
will
actually happen
benefit
over
the other as
not.
or
The
preference of
one
regards importance, extent of general utility and the
anticipation of its good results is made through the following procedure:- "The benefit which religion takes precedence his
life
if
which
that
which
one
mind
the
two
preserves
takes
his mind;
precedence
with
each
other; over
the
that which preserves man's
the one which preserves his
over
offspring; and that which precedence
conflict
man's life takes precedence
preserves
man's
the one meant to preserve
over
benefits
preserves
preserves
man's offspring takes
the one which preserves his material
over
wealth.14
3.4
D.
SCOPE
THE
Muslim
Sharlcah is
AND
CLASSIFICATION
jurists consider that the intention of the attain
to
the
attainment
the
world and
which will
of in
benefits
lawful
the
what them.
14
For
M.S.R.
a
human
hereafter.
Added a
to
this
mankind
detailed
al-Islamiyyah,
and
that
without saying,
goes
al-Buti,
best
elucidation of
in his Dawabit pp.
beings
which
64
a
clear
fi
who knows not
suit
that the
reservations
al-maslahah
119-275
does
therefore,
these
is
revealed code of law
the All-Wise and the All-Knowing
suits It
for
bring them happiness here in
conception that the Sharlcah is from God,
BENEFITS
OF
see
al-Sharicah
Sharlcah contains all to
procure
is
therefore
Lawgiver
the
legal aspects which help people
benefits and repel injuries.
something inherent in the actions of the
(God) and His intentions provided that there is Sharicah for
no
indication
in
the
be
considered
or
discarded.
It
is
divisions:
(i)
that which
relationship between of
acts
particular thing to
a
important to bear in mind that legal
obligations in the Sharlcah
the
Public interest
worship; and
are
divided into two
concerns
man
(ii)
the organisation of
and his Creator,
i.e the
that which concerns the
organisation of relationship between human bings individuals i.e
laws
as
well
as
-
societies and nations
groups,
-
governing behaviour and transactions
(mucamalat). The underlying principle for the first division
is
obedience
God-consciousness)
to
God
(to acquire
through following the ordained acts of
worship by observing their provision methods
the
causes
laws
of
and
of
effects
because
that
as
knowing
exercise
is
applicable to
governing behaviour and transactions and not to acts
worship. Moreover,
a
it is not essential for and effect
cause
to
or
even
one
innovate
ordained
ones
new
acts
because
the
It
of
who
the reason
particular act of worship, because by doing
deprives him of servitude. him
well
performing them without looking into their
worships to know the for
as
so
is also not permitted to
worship instead of the
Prophet of Islam has said,
65
it
"
innovation (in the acts of worship)
every
perversion and the abode of
is
perversion is hell
every
fire".15 issue
The
clear the
since
the
attainment
Subservience
to
in connection with
the
Sharlcah requires, of
subservience
God
acts
worship is
in the first place, God,
to
of
the Almighty.
implies the liberation of
an
individual
from any
To
the soul for this is one of the objectives of
prepare
the
in
Sharicah
-
i.e
servitude except that of God alone.
the
preparation of
good individual
a
society. This division of obligations
(i.e acts of
worship), therefore, does not enter into the orbit of research and
benefits,
though an individual may discover
try to interpret some implications of benefit
various not
on
acts
ordained
these
verses
"O
of
worship.
rules
in
the
for
It
in
is without doubt that God has
nothing;
we
read,
for instance,
Qur'an:
who believe! Fasting is prescribed to you was prescribed to those before you, that ye may (learn) self-restraint";16 as
ye it
"
and
verily prayer restrains unjust deeds ".17
(one)
from shameful
"From their goods take alms, that so thou mightest purify and sanctify them; and pray on their behalf, verily thy prayers are a source of
15
16 17
Reported by Muslim Qur'an, Ibid.,
our
2:183 29:45
66
them".18
security for
the
However,
implications and clear intention of the in
Lawgiver
may
worship,
there is also a great portion of acts of worship
with
appear
implications which
human mind.
the
For
most of the acts of
or
some
hidden
are
human mind
in
unknown to the
or
connection with
faith
in God
sometimes
cannot
is
necessary
to know the wisdom behind a particular
not
perceive its implications, and it
injunction in matters of faith since the material from God
does
who
not
lay
comes
rule except for the good of
a
human
beings. God does not oblige human beings to do
leave
something except for the
individual
an
and
a
group:
oddity in accepting such worship,
faith
between
an
worship
goes
are
obedience
to
enforcement the acts
18
are
long as the acts of free from
one
without saying,
worship with
abstruse
which is absurd is
therefore,
that acts of
God are
alone,
and the
reasons
for
their
primarily confined to the knowledge of
(God) alone,
that
is because almost all the
worship have hidden benefits in them.
Qur'an,
an
mainly meant for the adoration of and the
Lawgiver of
of
act
implication (wisdom) and the It
as
Perhaps it is better to mention here that
difference
clear.
and prosperity of
and the mind does not find any
in their various forms,
absurdities. the
a
success
or
9:103
67
for
As
Sharlcah comprising of
the
the
legal obligations in
rules of behaviour and
relationships between people in terms of society and
also
internationally. A mujtahid
discover
benefits the
with each other that the consideration
agree
and
reasons
intention
the
correct
structure
of
large.
Take
the
success
be
of
Sharlcah
the
is
This
to
is the
ensure
is
society where its network
tranquility and prosperity
of
individual
an
for instance,
prayer,
dominant.19
should
encompassed by justice,
at
individual and communal life.
why we find that the Muslim
reason
because
assure
recognized to
are
in matters concerning customs and transactions,
unanimously
to
interpreter could
the consideration of worldly
upon
tenets of
is the
causes
an
appeal to the mind and
supreme
scholars,
based
are
which
this
So,
or
easily that the underlying principles for
very
transactions
of
of
its scope and range is the organization of
transactions,
be
division
second
the
and
of
the
so
as
society
it is not permissible for r
its
structure,
duration,
the
to
find
conditions
19
A.S.
out
p.
season, the
that
so
Muhammad,
al-istinbat,
of
rakacat
their circumstances etc.
change of place, need
number
we
Masadir
generation
(prostrations), be
or
race.
reason
for
its
could
get
rid of it
structure
al-tashric al-Islami
465
68
influenced by a
to
wa
nor
We neither and can
manahij
we
add
anything has
new
to it,
simply because the Prophet of Islam
said,
"Pray in the way and
have seen
you
praying".20
me
said,
God
"Verily, prayer is ordained to the believers at prescribed times".21 in matters
Whereas we
in
are
certain
need
of
contract
concerning customs and transactions
knowing the is
and
cause
sanctioned
reason
becomes
or
null
legalize its execution and give allowance to
to
for
rule
in
the
a
new
society which is
Wherever the
contract;
to give
or
ever
legal benefits
encroachment
of
by which in a
a
order new
for an emergency
room
changing and developing.
are
found to exist free from the Sharlcah
passions and lusts,
ackowledges and recognizes them and encourages people to obtain
them;
and wherever
injuries
are
found the Sharicah
fights and checks them and enjoins people to refrain from them.
Once
it
becomes
Sharlcah concerning aim
at
benefits
21
the
injunctions of the
transactions and personal dealings
it should be realised that the
according to the Muslim jurists
three
muctabarah)
20
that
bringing benefits to human beings and repelling
injuries from them,
into
clear
kinds: -
(1)
these
—
Considered benefits
are
categorized
(masalih
benefits which have been laid
—
Reported by al-Bukhari and Muslim Qur'an,
are
4:103
69
by the Lawgiver with clear'legal proofs;
down
benefits
Cancelled
benefits
which
(masalih
have
been
cancelled
(3) Unrestricted benefits the
which
ones
discard
to
-
these
are
by the Lawgiver; and
(masalih mursalah)
-
these are
injunction is given to consider them
no
them;
mulghah)
(2)
they
are
or
left to be judged
independently.22 considered
The three
(ii)
kinds:
are
THE
benefits
NECESSARY
These
are
without,
for
absence.
To
divided
further
The necessary benefits
The reasonable benefits
luxurious
3.5
(i)
benefits
(al-daruriyyat);
(al-hajiyyat);
the
their
benefits
which
people cannot do
lives would become chaotic in their
preserve
these bene-fits is therefore an
and they are
through the ascertainment of their principles.
preservation of religion,
five
wealth.
pp.
Al-Shatibi,
the
concern
the
life, mind, offspring and
preservation of each necessary
preservation of religion is
benefit which
22
The
things is considered
The
The
BENEFITS
According to Muslim scholars these benefits
material
(iii)
(al-tahsiniyyat).
urgent need of human existence on earth attained
into
one
of these
and essential.
a
considerable
Sharicah has dealt with extensively.
Al-muwafagat,
vol.
2,
95-108
70
pp.
2-11;
Al-ictisam,
vol.
2,
Sharicah has obliged able Muslims
The
God
of
cause
doctrine all
the
(jihad)
to preserve religion,
monotheism should
of
to fight for the
reign
supreme
so
that the
and eradicate
impediments and shackles confronting humanity at The Qur'an says:
large.
"And fight is no more
them (the transgressors) until there or oppression, and there prevail justice and faith in God. But if they cease, let there be no hostility except to those who
life
dealt
a
legal benefit which
by the Sharicah at length;
with
and
a
penalty has been specified by the Sharlcah for
severe
of
preservation of life is
been
those
oppression".23
practise
The
has
tumult
who
of
illegitimately take life in order to
mankind
and
preserve
legal retaliation
Sharlcah in order
to
beings. The Qur'an "
secure
the
it from extinction. The rule
(qisas) has been laid down by the prevent any hostility among human
says:
if
And
anyone is slain wrongfully, we have given his heir (next of kin) authority (to demand qisas or to forgive); but let him not exceed bounds in the matter of taking life; for he is helped (by the Law)".24 In to
order
life
to
for
assure
every
the
security of mankind and the right
human being and to crush cruelties and
transgressions the Qur'an
says:
"0 ye
who believe! the law of equality is prescribed to you in cases of murder: The free 23 24
Qur'an,
Ibid.,
2:193 17:33
71
for
the
free,
for
the
woman.
if
But
brother of the reasonable demand,
slave,
the
woman
gratitude. This is a concession and a your Lord. After this whoever exceeds
mercy from the limits The
the
remission is made by
any
slain, then grant any and compensate him with
the
handsome
for
the slave
be
shall
in
penalty".25
grave
Qur'an has laid underlying principles
for the
preservation of human life, prevention of committing sins, of
removal
severity in duties,
in addition to the
illegalization of commiting suicide; all these show clearly that the Sharlcah is deeply concerned with the
preservation of life.
The
modification of of
the
When
the
Qur'an
that
the
taking of
the
as
a
deterrent "In
In
26
is
a
into existence it revenge
in
a
to
order
ye
was
made clear
legal way is not aimed an
individual only but
society. The Qur'an
preserve
says:
Equality there is (saving of) life of understanding; that ye may
men
yourselves".26
to
preserve
a
balanced mind,
the Sharlcah
prohibited intoxicants and has enjoined the Muslims refrain
vicious
25
(gisas)
prevailing custom before the advent
came
law of
the
you, 0 restrain
to
vengeance
preservation of the life of
to
has
taking
which could lead to uncontrolled bloodshed.
Islam,
at
of
enactment
Qur'an, Ibid.,
and
from all
activities
which make
speculative. The Qur'an
2:178 2:179
72
says:
the
mind
"0 ye
of)
who believe! Wine and gambling, (dedication and (divination by) arrows, are an
stones,
abomination of
Satan's
handiwork; Eschew such that ye may prosper".27
(abomination), The
Prophet of Islam is reported to have said: "Every intoxicant
is liquor and
every
liquor
is
forbidden".28 Above issue
all, of
there
the
several
are
preservation of
empowering its faculties activities; Muslim
the
which
is
by
some
kinship and chastity marriage
of
the
as
balanced mind and for its
to prepare grounds
expounded at length by
jurists.
named
of
a
rules have been
those
connection with
In
so
rules governing the whole
as
a
-
the
preservation of offspring,
scholars as
the safeguarding of
-
the Sharicah has ordained the act
positive
measure.
We read in the saying
Prophet of Islam:
"Intermarry extensively and spread so that I may proudly with you as the best of the nations on the Day of Judgment".29 stand
The
Sharicah permitted polygamy as a motivation,
alternative, has
entrusted
to to
attain the preservation of offspring, the
husband
justice to all the wives equally.
27 no °
Qur'an,
and
the
and
obligation of doing
Says the Qur'an:
5:90 _
—
_
Related
—
by al-Bukhari and Muslim? also refer to al-Shawkani, al-awtar, vol. 7, p. 148 n q J
an
_
Nail
~
Related
by al-Bukhari and Muslim. Another wording of this saying as related by Ahmad ibn Hanbal and narrated by Anas ibn Malik reads, "Marry the virgins so that I possess more population above all the Messengers of God on the Day of Resurrection"
73
"Marry four; deal one" the
To
women
of
justly .
end,
same
the
fornication and
and
those all
long
it
do
who
the
choice,
two or three, or that ye shall not be able to (with them), then (marry) only your
if ye fear
but
doors
and
Sharicah has prohibited adultery
laid has
down
a
painful punishment to
legislated it in order to close
leading to this sinful act which,
in the
breaks down the bonds of kinship and demolishes
run,
good character and generates recklessness and
irresponsibility in society. Concerning the preservation of material wealth, Sharlcah has robbers earn
laid
and
their
imposed
a
severe
various
down
punishment to thieves and rules
enable
to
people to
living legally, and prohibited them from
plundering the belongings of others. The Qur'an
3.6
thief,
"As
to
her
hand;
a
for
their
crime;
THE
REASONABLE
These
the
are
inconvenient
benefits
the
male
or
punishment by
the
cut
off his
or
of example from God
and God is Exalted
in
Power".31
BENEFITS
benefits
conditions
neither
female, way
says:
harms
which
only.
people need to avoid
The absence of these
people's lives
nor
causes
disequilibrium in their worldly and religious welfare but
30
31
only generates inconvenience. Ease and simplicity are
Qur'an,
Ibid.,
4:3 5:38
74
the
general features of the Sharlcah.
instance,
permission is granted to
traveller,
We see,
sick
a
for and
person
a
break the fast during the month of Ramadan:
to
"But if anyone is ill or on a journey, the prescribed period (should be made up) by days later. God intends every facility for you; He does We
see
not
want
to
in connection with prayer
also
prostration
prayer
may
that a four
be reduced to two prostrations in
particular circumstances; The
difficulties".32
put you to
on
eg.
journey
a
or
in jihad.
Qur'an says: "When ye travel through the earth, there is blame on you if ye shorten your prayers for the unbelievers may attack you".
With trade
regard to transactions and
commerce
visualize much
and
in order
we
forbiding to
and
forbidding
fear
the Lawgiver allowing
usury.
We do not need to
comprehend the demand of
people for these two principles commerce
see
no
usury.
-
i.e allowing trade and
There are numerous
examples of this type in the Sharicah which give scope for
mankind
to accommodate
circumstances
all
the
new
which
are
neither
of
life.
3.7
THE
LUXURIOUS
These
are
BENEFITS
benefits
the
smooth
the
development of the individual's life
32
33
Qur'an,
Ibid.,
running of people's lives
2:185
4:101
75
nor
necessary
for
important for or
the
community's prosperity. They
embellishers of
are
already confortable life. The taking,
an
for instance, of
sophisticated ornaments and adopting highly cultured customs
which make
necessities
of
the
life;
community look at
they
are
issue
into
consideration
opportunity of happiness and in
as
hereafter.
the
We
see,
are
not
surplus to normal life.
a
the Sharicah has taken
Inspite of this lack of necessity, this
ease
in
order
to
provide the
in this life
success
instance,
for
as
the Prophet of
Islam
commanding the Muslims to observe strictly the
rules
of
tidiness,
celebrations, of
some
wearing
new
well
clothes on cid
(festival)
putting
on
clean white clothes on occasions
gathering. As
we
find also,
luxurious
benefits,
forbidden and
the
harmful
in order to attain
food-stuffs have been
eating of bad smelling foods is
abhorred.
therefore
We
life
for
is
the
that
that
the
that which makes
category of embellishers
which
lies
between
the
two
ordinary needs and requirements
Al-cIzz vol.
1,
pp.
thing which is necessary
categorized in the essentials
(al-daruriyyat), in
find
ibn
cAbd al-Salam,
Qawacid
60-61
76
life
more
enjoyable is
(al-tahsiniyyat), and is
in
the
category of
(al-hajiyyat),34
al-ahkam fi
masalih
al-anam,
3.8
CANCELLED
THE
These
Sharicah.
the
with
the
create
the
grave
benefits
which
ones,
benefits
is
surrender
to
glance,
peace
to people and stops
lead
to
the
enemy of
wealth
successive
to
in
to
an
when one
enemy
at the
It may appear,
that surrendering to an opponent brings
nonetheless,
on;
discarded
injuries. An example of this type of
first
so
been
they are primary benefits which
or
capable of defending oneself.
and
have
They are secondary benefits which conflict
primary
discarded is
are
BENEFITS
over the
the shedding of innocent blood
the
Lawgiver considers this act
injuries;
the conquered,
such as the domination of
the exploitation of the
conquered and the oppression of the subject
population etc. For these
reasons
and others,
the
Lawgiver has ordained the obligation of self defence to safeguard the liberty and the security of the Ummah
as
an
imperative thing and has urged the preservation of the boundaries achieve aloof.
and
the The
maintenance
the
Ummah's act
of
of
the
Ummah
in
order
sovereignty and keep the intruders
not
yielding to the
enemy
helps
bringing victory and stability to the Ummah and it
to
succeed
Another
in
the
to
difficulties
of
in
prepares
life.
example of the discarded benefits is that of
committing suicide for somebody who finds difficulty in earning his living, and
who
or
for
someone
despairs of recovering.
who is seriously sick
It would seem at
first
glance that committing suicide by these people is an
77
individual
benefit
which puts
the misfortune
the
disease
the
injuries caused by this act
to
or
which would
be
the
termination
assassination of
the
creation
individuals
fatality of disbelief
well
as
of
narrowness
character
inordinate
of
as
of are
life.
Nevertheless
the least of
numerous
of
human
in
the
perseverance
and
society and the
uncertainty in the hearts of communities.
It
also
causes
optimism and disbelief of the natural
man
in
end to the torment of
an
which surrounds him from all angles.
the
natural
fatality of
man
The
generates
passiveness and negativity in the mind, while belief in it
imbues
like
with
positiveness and faith.
Sharicah has
The
abhors
man
those
do
who
killing
an
forbidden
it
it
and
committing suicide and
has
declared
its
innocent person with no cause;
exercise
the Qur'an
says:
"Take
not
life which God
by way of justice and "And
God The
do
not
hath
kill
been
to
hath made
sacred
except
law";35
(destroy) yourselves; most merciful".36
for verily
you
Prophet of Islam is reported to have prohibited the
killing of oneself, and considered it to be the action of removing oneself from true faith in God, His judgment and His
35 36
37
decision.37
Qur'an, Ibid., The
6:151 4:29
tradition
has
been
related
by al-Bukhari
78
Among the examples of cancelled benefits
is the
issue of
polygamy; a right which rests in the hands of
husband.
Polygamy may
grievances to if
them
exist
all.
at
Nevertheless,
Sharxcah has cancelled this benefit needs
of
first
the
husband:
a
wife
to
the
provide for the
the need to get children in case
eg.
the need for
barren;
was
injuries and
and it would be of great benefit to
women,
did not
it
to bring
appear
a
social
intercourse which would not
be
diseased wife;
the need for
social welfare and wellbeing
of
husbands
whose
women
wars
or
by calamities, etc.
In
this
forward famous
the
verdict
Andalusian
al-Andalus, *
of
his wife
Ramadan
after
_
bring a
verdict.
ArmV
The
of
*
•
during the day time of the fasting which
he
felt
sorry
for his action
jurists to ask them what would be the
a
day".38
p.
his
remedy for his action.
Saleh,
we
and the standpoint of other
scholar,
_
Masadir
So,
Yahya ibn Yahya
prominent jurist of his time,
"I find no remedy consecutive months
M.A.
benefits
Yahya ibn Yahya al-Laythl,
towards
al-Laythl, being
O O
long term
either being killed in
cancelled
•
collected
necessary
of
of
died,
a
cAbd al-Rahman ibn al-Hakam, had sexual
with
contact month
field
same
Muslim scholars
and
have
possible to
for
you except to without breaking
_
_
__
79
fast two single
a
__
al-tashric al-Islami
472
replied:
wa
manahij
ai-istinbat,
While fast
it
in
free,
is
known
this
way
the
Sharicah that he who breaks
has the choice of either setting
fasting two consecutive months
or
people.39.
poor
in
verdict,
or
a
the
slave
feeding sixty
When other jurists questioned him
on
his
replied by saying:
he
"Were we to open the door of choice to him, it would be simple for him to have sexual contact with his wife daily in the month of Ramadan and
simply set free a slave or feed sixty poor people (because of his richness); so, I have made the remedy more difficult in order that he should not repeat the same action again".40
is
What
based
upon
noteworthy in this verdict is that it is
vested benefit which has not been considered
a
by the Lawgiver.
AvVUf"* to
was
it might
Yes,
seem
that in making the
cAbd al-Rahman, fast two months consecutively
provide
a
great benefit to him and deter him from
following his passions which made him disobey God and to the Sharicah has
set
an
not
approved this benefit and cancelled it simply because
the
choice
of
example to others.
their
made
for
remedy applies to all believers regardless
economic
unlawful
Nonetheless,
and
or
social
sinful
to
status.
have
The
sexual
Sharlcah has
just
intercourse
during the day in Ramadan to all Muslims equally without segregation between the ruler and the ruled, and has sanctioned any one
39
40
The M.A.
—
hadith
Saleh,
is
of the three mentioned penalties.
related
op.
cit.,
by Ahmad ibn Hanbal in his Musnad p.
472
80
The
Sharicah has depended fear
of
which acts
God
individual's assist
to
3.9
are
evidence
the
punishment for the remedy,
of
an
of
the
Yahya ibn Yahya
which
enter
Sharicah has
the
them
upon
considered
or
benefits
upon,
nor
the
any
their removal. These benefits benefits"
discard them which
the
is there
due
to
the
given direct injunctions as
fact on
that
whether
opposed to the
Sharlcah has commanded to
the
and the cancelled benefits which have been
rejected by it. For this the
realm of
Sharicah which specifies
suggests
not
the
Lawgiver and His intentions. There
"unrestricted
the
use
attention
the
benefits
the
in
called
who
guard in
BENEFITS
the
are
acted
besides
drawn
has
indication which
be
first
utility of these benefits
necessary
act
the
since the Sharlcah has cancelled
UNRESTRICTED
consideration
to
as
void.
and
no
the view of
the Muslim scholars have rendered his verdict
These
is
upon
safeguarding of the Law of God and its
So,
which
al-Laythi, null
soul
the
executions.
benefit
in this matter
term
reason
"al-istislah"
there are some scholars to
mean
al-masalih
al-mursalah.
If
with
the
the
scholars, do
meaning of al-masalih al-mursalah tallies
meaning of istislah
as
put forward by some
and since the Sharlcah does not command
man
anything except for the benefit of human beings,
81
it
to
appropriate therefore to take al-masalih
seems
al-mursalah
As
we
original
have
certain
haram
if
when
of
do not find it
we
and
about
found
decision
p.
387 and
we
a
or
makruh (loathsome),
we
therein, do
not
look
we
find
in
do not find
three
the
rule
a
sources,
in the
we
Sunnah,
for
resort
a
to
that
is
a
qualification or
occurrence
judgment is made similar to
this
we
same
cillah.
find the Sharlcah connects these causes
but without connecting
judgments with benefits which cannot be
al-Buti, so
rule is to be given
particular action
bearing the
or
the
connected to causes cilal);
are
occasion
way
The Qur'an,
analogy in chapter one,
in
that the
(analogy). We have seen clearly,
judgments
ever
decisions
M.S.R.
If
these
qiyas
qualifications with
41
of
or
(the singular of cilal)
certain
In
one
source
talked
if
another
in
case
a
one
look in the Qur'an for its
ijmac. But if
cillah
a
we
the
we
which
making in
(compulsory) or mandub
_ia'i_z (lawful),
in
decisions and
or
decision.
fourth
are:
wajib
its
certain the
whether
case
for
look
we
of the Sharlcah
(illegal),
enactment; Sunnah
decision
of
ijmac and qiyas; and if
(recommended), or
devices
the
previously in chapter
seen
sources
the
Sunnah, a
of
one
Law.41
Islamic
for
as
Dawabit
al-maslahah fi
on
82
al-Sharicah al-Islamiyyah,
defined
certain
on
occasions.
there
Moreover,
is
a
problem of difference of opinion in demarcating the limits
could be all
benefits.
of
to
the genuine methodology which
So,
applied by
jurist
a
or
a
mujtahid is first of
identify the suitable cillah which would be
approved by the Sharicah and then give
a
decision
judgment to that particular occasion and other occurrences
But or
events
and
decisions
previous still
without
making
not
any
that
so
or
wrongness
Were
it
to
the mind
character
but
permit it
as
intoxication benefit
See
Malik,
of
bear
be
does a or
the
398 and
does he make
new
events and
cilal to the
similar or
is he to stand
decision, knowing that it is
of their
discovered
sluggish,
al-Shatibi, p.
benefits for
jurist
people are kept aware of the
Tightness
makes
event daily;
new
A
him to give legal decisions to those
upon
occurrences
on
limitless.
are
which have ordinances
ones
incumbent
do
a
new
cillah.
occurrences
depending
which
occurrences
42
same
mujtahid might face
a
new
bearing the
or
not
actions?42
that
some
type of drink
slow in thinking and creates bad
make
a
person
drunk;
are
we
to
lawful drink due to the lack of are
we
to
make
it
unlawful
for
the
preservation of mind and character and get
Al-muwafagat, so
vol.
on
83
1,
pp.
15-17;
also Abu Zahrah,
rid of all of
an
the
ensure
impurities which contaminate the integrity
individual
Without any of
the
well
as
that
of
the
society at large?
shadow of doubt, according to the intention
Sharlcah, the
as
we
have to declare
the drink
legal benefit; and in doing
applied the theory of al-masalih
84
so we
unlawful
to
have already
al-mursalah.
Chapter 4 MASLAHAH •
4.1
MASLAHAH •
AS
•
is
It
AS
•
GENERAL
A
GENERAL
A
AND
A
TECHNICAL
TERM
TERM
quite often claimed that "maslahah"
principle of legal reasoning
-
as
a
broadly speaking, to
argue
that
"good" is "lawful": and that "lawful" must be good
came
to
of
fiqh.
The
instance, law"
used
be
a
very
the early
to
the
to
founders
of
Malik
b.
Anas.
these
statements
the
early period in the development
of this principle is attributed,
use
even
or
at
Companions of the Prophet. Amomg the of
schools
There
in
it
law,
is associated with
however,
seems,
equating the
of maslahah may
similar observed not
have
other
to
used
that
use
to be a
confusion in
of "maslahah"
such
or
as
a
The early
technical
is
term
al-Shafici; hence this concept must
developed in the post-al-Shafici
Paret's
a
ra'y. Rudi Paret has
as
word maslahah
by Malik
as
have been in its general sense
terms
the
for
jurists of the "Ancient schools of
general term with its use as a technical term. use
-
observation,
however,
period.1
does not refute the
possibility already discussed that considerations similar to maslahah
were
considerations
1
R.
Paret,
[Leiden:
employed by pre-al-Shafici jurists.
do
not
seem
Istihsan and Istislah,
Brill,
1961],
p.
have
to
Shorter
185
85
been
formulated
Such
in
Encyclopedia of Islam,
technical
in
maslahah the
legal terms. the
The proponents of the use of
early period have,
early similar considerations with maslahah.
therefore,
incorrect to say that
not
such
was
a
continuation
early methods of reasoning which were not yet
formally defined. the method
of
insistence
that
texts
Later,
when al-Shafici's definition of
reasoning in terms of "sources" and his the
reasoning be linked with the revealed
through qiyas,
prevailed
over
other methods the
concept and method of maslahah was also seen,
by Shafici
From
reasoning
al-Haramayn al-Juwayni's
(438/1047)
it appears that by his time the validity of on
the basis of maslahah had become
controversial
Shaficis and
In this respect some claimed
are
to
have
on
such
textual of
an
(asl).
asl
and
evidence
The mursalah
such
(dalil)
as
are
are
a
problem
number of
maintained
acceptable maslahah is only that which has basis
a
enough to bring forth three schools of
"mutakallimun"2
textual
especially
jurists in terms of "sources".
Imam
Al-burhan,
thought.
is,
It
the post-al-Shafici
development of the concept of maslahah of
confused
apparently,
a
that
the
specific
(a maslahah not based
contradictory to the
not valid.
The second school
thought is attributed to Imam al-ShaficI and to the
majority of Hanafls in general. They believe that
2
A
group
of usuliyyun in the
in-fluevicecj by inter pfG+dt-'i
w®d(aeva,l per iod of Islam
were
theological exposition in tlnelr leg&l
86
maslahah
still
can
masalih
be
it
if
even
used,
which
are
is
not
supported
on
a
specific basis,
provided that it is similar to those
unanimously accepted
or
which
are
textually established. The third school is attributed to Imam
Malik
who
held
consideration of it
that
the
a
condition of
corresponded with the texts This
comment
similarity
whether
or
not.3
or
use
of maslahah but it is
significant to note what divides these schools
very
maslahah.
First,
any
by al-Juwaynl does not help us in
determining the dates of the
of
existed without
maslahah
shows
the comment
that
it
was
on
the method
reasoning which sought its basis in the revealed
texts.
Secondly, the
if
accept the attribution of
we of
maslahah
to
comment,
it also shows that the method of maslahah in its
names
the
jurists given in this
early formulation by Imam Malik and his followers was
independent of the consideration of "sources" and
further
conformed
first
to
group
that
maslahah
"sources"
-
was
to
and to ijmac in
or
"basis"
accepted by others if it
the
case
text
in
the
case
of
the
of the second group.
They rejected only al-maslahah al-mursalah because it did not
conform with
the
sources.
This
explains why the
concept of maslahah which originally was not necessarily
al-Haramayn al-Juwayni, Al-burhan fi Usui al-fiqh, MS. Ill photo. I.R.I, no: 219, fol. 135a; see also Mustafa al-Shalabi, Taclil Al-ahkam, [Cairo: al-Azhar, 1949], pp. 292ff Imam
Ahmet
1321,
87
conceived and confined within be
to
came
reference the
This
"sources".
of
"sources",
confused
this
confusion
following analysis, two
effectiveness, discussed
in
One
be noticed in the
in terms of need and
in reference to
and second of
terms
may
of
is the tendency to discuss maslahah
i.e first
levels,
that
in
discussion
the
concept of maslahah as we shall see later.
indication of
at
framework
particularly by later Shaficis,
seen,
to
the
validity,
sources.
When
these two levels were
confused.
4.2
MASLAHAH •
AS
•
A
TECHNICAL
TERM
Al-Juwaynl analysed maslahah basis into
five
categories. First is the category where its
where
it
is
neither
similar
of
noble to
the
priorities, concerns
not
the
essential
general need
a
Third
above,
is
but
call
The second category
(hajat cammah), but below
the
category which belongs
rather
concerns
something
The fourth category is
(mukarramah). third,
necessities
it
less
noble,
yet
in terms of
the fourth comes later. The fifth category
those
demanded
certain
inevitable.
darurI.
of
level
is rationally understandable and to
are
is
what
concerns
is
related
which
(darurat)
which
extra-textual
reasoning in the context of analogy by cillah
(significance)
to
an
of
macna
the
as
usul
whose
by darurah,
by a mukarramah.
macna nor
is
not
by hajah;
obvious, nor
and
is it required
Examples of this category are the
88
is
cadat.4
purely physical
Maslahah
Zahirl
as
a
technical
jurist Ibn Hazm's
al-ahkam,
is
term
in
used
not
the
(456/1065) Al-ihkam fi Usui
orrniingHanaf l jurist, Pazdawi's (d.
482/1089)
Usui.
The
and masalih
maslahah
terms
Muctazili Abu al-Husayn al-Basri (otin
and
technical
and maslahah
means
in
to
reference
and
are
good things,
Al-Basri discusses maslahah
goodness.
istidlal
by the
47S/10&5) bothin ejeneral
him masalih
To
sense.
used
are
cillah, and in arguments
against his opponents who maintain that masalih cannot be known
through reasoning at all. At
al-sharciyyah
al-masalih
acts
commands; These
these
means
(cause),
are
validity of
these
4
See
cibadat.5
are
Related to
achieving the Sharci
to
means
as
we
also connected with masalih.
means
are
dalil
(evidence),
amarah
(sign), sabab
cillah (reason) and shart (condition). The
illustrations
(usury)
the
are
point he defines
those acts which
as
obliged to do by the Sharicah such these
one
of
these
consensus,
terms
are
given
as
follows:
analogy, measurability for riba
and the conditions in contracts of sale. All of
means
connected
are
al-Juwayni,
op.
cit.,
with
fols.
maslahah.6
For
instance,
108ff
5
See Abu al-Husayn al-Basri, Al-muctamad fI Usui al-fiqh, Al-machad al-cilmi al-Firansi, 1964}, vol. 2, p. 888
®
See
the
al-Basri,
op.
cit.,
p.
888
89
{Dimashq:
the
connection of amarah and cillah is evident in what
follows:
When
reason
a
maslahah
It
...
not
be
to
indicates
found wherever
cillah and other
then,
related
that an
the
maslahah is terms
are
does not elaborate what
what
connection
which
he
mentions,
not
mention.
4.3
TWO
MAIN
is
basis
of
maslahah •
a
is
cillah is found.7
however, the
as
decide that it is the basis of
we
al-Basrl,
For
sign indicatesa quality (wasf)
correct
(cillah),
t
r
a
between
end for which
an
Al-Basri,
means.
•
these masalih
are
*
and
al-sharciyyah
al-masalih
and the other masalih which he does
STAGES
IN
THE
DEVELOPMENT
OF
THE
CONCEPT
OF
MASLAHAH •
•
the
In
advanced
maslahah
main
following centuries, however,
quite significantly.
the concept of
There are two
stages in the development of this concept.
One is
represented by al-Ghazall in the early twelfth century, the
other
AL-GHAZALI'S
4.3.1
In
of
by al-Razi in the early thirteenth century.
CONCEPT
al-Ghazali's is
maslahah
al-Basrl.
discussed
Al-Ghazall
its
"In
(d.
OF
1111) more
MASLAHAH •
•
Al-mustasfa,
the problem
clearly and fully than by
defines maslahah
as
follows:
essential
meaning (aslan) it (maslahah) expression for seeking something beneficial (manfacah) or removing something harmful
is
an
(madarrah). 7
—
Al-Basri,
op.
But
cit.,
p.
this is not what
805
90
we
mean,
because
seeking benefit and removing harm are the objectives (maqasid) (in usul al-fiqh) at which the creation (khalq) aims and the goodness (salah) of creation consists in realizing their goals (maqasid). What we mean by maslahah is the preservation of the maqsud (objective) of the law (sharc) which consists of five things: preservation of religion, of life, of reason, of descendants and of property. What assures the preservation of these five usul (principles) is maslahah and whatever fails to preserve them is mafsadah
Maslahah
the
of
its
denied
by
a
neither
basis the
of
third
its
The
qiyas.9
first
third, in
the
type which is
the type where there
favour,
nor
in
category is valid and can be the It is
as
From this angle there are three grades of
we
have
seen
above-mentioned
five
grade of daruriyyat.
^
textual evidence in
The second is obviously forbidden.
hajiyyat and tahsiniyyat
1970},
a
the element of maslahah contained in the
strength.
See
is
category is further examined from the viewpoint of
maslahah
the
definition
category which needs further consideration.
Accordingly, third
evidence
textual
above
second,
textual evidence; a
the
following three categories. First,
consideration;
contradiction.
8
in
type of maslahah which has
favour
is
the
maslahah".8
is
removal
understood
as
into
divided
then
its
and
al-Ghazali, vol.
Ibid.,
p.
1,
pp.
before, or
viz:
tazylnat.
daruriyyat, The preservation of
principles is covered in the
This is the strongest kind of
Al-mustasfa min
cilm al-usul,
286-87
284
91
{Baghdad: Muthanna,
maglahah.
The second grade consists of
munasabat
(occasions)
themselves
are
are
not
essential in
to realize the masalih in
necessary
The third grade is neither of the above but
general. exists
but
which
those masalih and
things.10
only for the refinement of
Keeping this classification in mind, only that al-maslahah
i.e
al-mursalah
that
which
is
not
supported
by textual evidence, will be accepted which has three darurah (essential), qatciyyah
qualities: kulliyyah however, a
it
(totality). The other two grades of maslahah, admissible if they are not supported by
not
are
specific textual evidence.
the
and,
called
istislah which
are
supported by
is
similar
to
istihsan,11
invalid.
hence
Al-Ghazall among
If these
reasoning is then called qiyas, otherwise,
the
text, is
(decisive) and
counts
istislah
along with istihsan
the methods of reasoning which do not have the same
validity that qiyas has. He calls such methods "usul mawhumah" on
-
those
imagination
or
principles in which the mujtahid relies on
his discretion rather than on
Tradition.12
The
10 11 12
above
Al-Ghazali,
op.
Ibid.,
2,
vol.
Al-Ghazali,
op.
definition
cit., p.
and
vol.
1,
p.
vol.
1,
pp.
classification
290
306
cit.,
92
274,
284
of
maslahah
have
a
particular place in al-Ghazall's structure of the
discussion of will
structure
the
usul
al-fiqh. A brief analysis of this
reveal
the
Al-Ghazall divides the
concept of maslahah.
discussion of
usul
place that al-Ghazall gave to
in his
book
Al-mustasfa
into
six
parts. Apart from the first two parts which deal with
introductory matters such introduction
to
methods
as
of
definition of usul and
an
logic, the remainder of the
parts discusses the following subject matters of usul: hukm
(command);
evidences)
al-adillah al-arbacah
i.e Qur'an,
(the four
ijmac and caql;
Sunnah,
-
interpretation and analogy; and taqlid (imitation) and ijtihad. The above treatment of maslahah appears as an annex
is
to
discussion
the
of
the
four
evidences.13
Also
it
significant that it is not discussed in the part
dealing with methods of interpretation and analogy, although its connection is implied. References
parts also. discusses
to
maslahah,
however,
In the part of hukm,
its
essential
meaning
appear
in other
where al-Ghazall
(haqiqah) and its four
components, maslahah is mentioned occasionally. components of hukm,
following: legislator,
13
Al-Ghazali,
(1)
according to al-Ghazali
hakim (the
sovereign);
op.
cit.,
pp.
one
(2)
who gives
are
93
the
judgment;
hukm (the judgment);
284-315
The four
the (3)
calayh (subject of judgement (4) mahkum flh (the
mahkum
object of judgement,
the act of mukallaf).
Discussing the meaning of hukm, he deals with the question of whether the goodness and
human
definition
above
meaning.14
course
of
(goodness) in
of maslahah
its
is similar to
essential
At one point he even uses the term masalih in
hasan.15
place of
(both
is known objectively or through sharc
His description of hasan
(law). his
divine)
badness of acts
or
his
He
frequently refers to mafsadah in the
analysis of mahkum fIh,
in dealing with the
question whether only voluntary acts
are
judgement
mafsadah for
not.
or
He
regards it
as
involuntary acts to be considered
a as
objects of
objects of
command.16
Reference methods he
of
to
is
maslahah
made
again in the part of
reasoning. Dealing with the method of qiyas,
explains that qiyas has four components:
root
to
which
which analogy basis
of
anology is made); is sought);
which
(3)
(2)
asl
(the
farc (the branch for
cillah (the
analogy is made);
(1)
and (4)
reason or
the
hukm (the
judgment to which analogy leads). Al-Ghazali maintains that
14 15
-1®
See
qiyas,
here,
al-Ghazall,
Ibid.,
p.
60
Ibid.,
p.
87
op.
must be distinguished from qiyas
cit., vol.
1,
94
pp.
56-57
in
philosophy. This distinction lies, apart from the difference
in
cillah itself.
cillah
cillah is sought the
explicit it
or
wa
tartib).
cillah is
istinbat
(sabab
istinbat
of
ijmac.
are
but
in which
the
(traditional), meaning The cillah is either
it is implicitly indicated (ima'),
or
,
from
known
"cause"
evidence
The
is "naqliyyah"
(sarIh)
is
different.
Sunnah and
Qur'an,
is not
Naturally then the methods of finding
also
are
in the conception of
reasoning,
cillah in fiqh
The
"sign".17
merely a the
form of
the
the
and order of the command
sequence
The fourth manner of finding the
(inference). The only valid methods
two:
al-sabr
(1)
al-taqsim
wa
(observation and classification; method of exclusion), and
(2) munasabah
munasabah
with
maslahah
that
sharc
is
as
main
a
defines
connected
of
the
with
meaning,
al-Ghazall
element
"munasib"
of
the
command
as
that
suitability
which,
(intadhama)
is achieved rationally
is
is in reference to
It
frequently discussed.
Al-Ghazall
magalih,
(suitability).18
(hukm).19
as
soon
classification and grades of munasib,
refers
17
18
^
See
and
to
maslahah
—
_
al-Ghazali,
Ibid.,
vol.
Ibid.,
p.
2,
as
the
annex
which
is
op.
are,
however,
cit., vol.
2,
295ff
297
95
p.
not
230
it
For a discussion
significantly
enough the discussion of maslahah and its grades. Munasib
like
identical.
Although al-Ghazall analyzes munasib also in terms of effectiveness
and
with maslahah,
of munasib,
significance for
istihsan and is
divided
is
suitable
evidence. is
nor
into
four
is
and
Second,
is
Fourth,
well in
the
difference between
the
as
of al-Ghazall. Munasib
eyes
categories:
first, a
the munasib which
specific textual
that munasib which
suitable
above
but
is
is neither
Third,
first
the
that
is suitable but
evidence.20 Al-Ghazali
classification
suitable
supported by textual
that munasib which
supported by textual the
he does
is of particular
one
supported by
not
as
Among the various
supported by the textual evidence.
evidence.
in
as
way
it explains the relationship of
as
istislah
munasib which
not
us,
maslahah
to
same
yet the details vary.
classifications
munasib
validity in the
is
adds that
category is
acceptable to all jurists. The second category is called istihsan which
clearly
means
to make law according to
personal discretion. The fourth is called istislah or al-istidlal
al-mursal♦
classification for
70
from
this
is
the
deciding the suitability
or
munasabah of something
istihsan
further
of
clear
maslahah
which
text
is
It
in
that
lacks.
But
—
—
op.
or
conformity to the
otherwise it will fall into the category
istihsan.
Al-Ghazali,
consideration
again the munasabah of maslahah
depends on its suitability general;
basic
cit., vol.
2,
p.
96
306
From
concluded
al-Ghazali's in general
fiqh in terms of
treatment
of
it
maslahah,
can
be
that his predilection for examining
theology21
and for qiyas
as
method of
a
reasoning, led him to examine the concept of maslahah with
reservations.
From
the
point of view of theology, he
rejected the concept of maslahah in terms of human
utility;
furthermore,
basis
revealed
of
he subjected it to scrutiny on the
texts.
Secondly,
he made the method of
reasoning by maslahah subordinate to qiyas. He did not reject maslahah altogether, the
as
he did with istihsan,
but
qualification he provided for the acceptance of
maslahah,
did not allow it to remain
an
independent
principle of reasoning. Furthermore,
with the above
concept of maslahah, other to
elements
maslahah,
al-hukm
which
such
as
are
in his
takllf
understanding of speech),
Al-mustasfa. necessary
21
_
that
In
the
quite relevant
fahm al-khitab
(the
tacbbud
niyyah (intention), etc.
haqiqat
The discussions of these
through various chapters in his
addition,
relationship
al-Ghazali did not
among
see
the
different categories of
—
Al-Ghazali,
much
scattered
discussion
(legal obligation),
(self consecration to God), are
on
he could now bring into focus the
(the reality of a rule),
elements
limitations
—
—
cit., vol. 1, pp. 5-7. Al-Ghazali complains the Transoxian jurists, such as Abu Zayd have tried to bring too fiqh into usul al-fiqh [p. 10] op.
97
maslahah.
of
Some
above
the
consideration
by
points
jurists after al-Ghazali, but
some
systematic consideration as
shall
we
4.4
THE
Al-Ghazali's
by
given to them by al-Shatibi,
was
OF
AL-GHAZALI
ON OTHER
classification
Khaldun
influence
is
Al-mustasfa later
reformulated in
then
for
later
number were
of
and
be
See
later
HanafI
Ibn
usul
influence.
mentioned
(646/1249)
22
a
As
that
major
sources
until
usul,
of
the appearance
Al-mahsul.22
above
works
two
and
concepts. Al-Razi's Al-mahsul
source
This
works.
in
the
of
commentaries
ShaficI
must
number
on
work
combined
became
usul
written
MalikI to
turn
a
remained
writers
monumental
Al-mahsul
strong.
very
al-Basri's book Al-muctamad and
noticed,
for
al-Razi's
of
were
number of jurists. His influence,
a
al-Ghazali's
JURISTS
and definition
particularly in reference to maslahah, Ibn
more
later.
see
INFLUENCE
followed
taken into
were
and
of
considerable
influence
is
abrigements
influence
evident on
from
Al-mahsul that
periods. This work influenced which We
has
need
not
al-Qarafi
so
go
far
the
taken
even
exception
into details, but it
(684/1285),
Ibn Hajib
and Ibn cAbd al-Salam with whom al-Shatibi was
Khaldun,
Al-muqaddimah,
[Cairo:
98
Bulaq,
1320 A.H],
p.
431
familiar
and
influence
in
of
general opposed, al-Din
Fakhr
al-Razi's
Al-mahsul23
Al-Razi's
i
is
■
largely under the
were
(606/1209) Al-mahsul.
structured
more
on
the
pattern of al-Basri's Al-muctamad than on al-Ghazali's Al-Razi
Al-mustasfa.
basic
hukm
and
more
than
the
about
of
the
Significantly enough,
meaning and classification of
the
this
of
chapter.
The scheme of the rest of
chapter is exactly the same as that of al-Basri. to
introduction,
maslahah
with,
are
the
commands
4.5
AL-RAZI'S
of
Al-Razi
as
of finding cillah is
manner
a
discussed
one
Sharlcah
the
CONCEPT
does
as
not
OF
of
the
with
leads in
man
each
•
—
maslahah,
al-Din
-
are
it
seems
-
Al-mahsul
1039
quite closely
(yuwafiq)
to him
-
fi usul al-fiqh,
[L- 643]
99
that
munasib is defined
agreeable
—
al-Razi,
University, Nemoy, A
is
but
(tahsil) and "preservation"
—
-
Fakhr
qiyas.
•
First,
other.
"acquisition"
to
MASLAHAH
define
what
to
of knowing
ways
in addition
thinking munasib and maslahah
associated "what
is
and in the last chapter where al-masalih
al-mursalah
his
in the
therefore,
the question of goodness of acts
where
question of munasabah dealt
made,
are
The
in the chapter concerning qiyas where the
discussed,
both
definitions
question of the goodness of acts constitute
half
references
in
the
introduction.
the
discussion
the
the
in
terms
with
deals
MS.
Yale
as
(ibqa').24
its
(mulaim)♦
in
and
alam
second
is
which
in
positive
The
achieve what
to
which is alam (pain)
munasib
the
is
is explained similarly
Ibqa'
(madarrah),
Thus
Ladhdhah
means.
ladhdhah
to seek
(manfacah), and manfacah is pleasure (ladhdhah)
"utility" or
He explains that tahsll means
are
its
evident
final
sense
and
as
its
or
need
is
suited
removing harm Both
means. not
be
defined.
analysis is related to ladhdhah
and to alam in the negative
definition of munasib
usually suited
(fi al-cadah)
is
given
sense.
that
as
to the actions of
wise.25
the
Al-Razi
then
maintains
that
first
the
definition
accepted by those who attribute hikam and masalih causes
of
God's
commands.
definition
second
The
is
as
is
employed by those who do not accept the above
causality.26 This explanation view
own
This
on
of
rational
much
problem of causality and God's commands.
question is first dealt with in the
discussion is
the
takes us back to al-Razi's
as
the
or
whether
the
goodness
established
by law.
25
26
See
Fakhr
al-Din
al-Razi,
op.
He argues
(of man)"
cit., part II,
Ibid. Ibid.
100
of
badness of things
definition and understanding
something "suitable to nature
2^
or
course
that in as
of good or
f.
as
87a
as
"a quality
of
perfection" is concerned, undoubtedly good and bad
rational. and as
bad
The
point in question is, however, whether good defined with
be
can
are
the Muctazilah
reference
praise
to
blame
or
done.27 Al-Razi, after detailed
have
analysis, concludes that,
if defined in the latter
good and bad can be established only by
law.28
sense,
The
question then is whether what is praised in God's commands
corresponds,
can
this correspondence be understood
Al-Razi
answers
this
discussion of munasabah. munasabah
of
first,
people;
a
maslahah;
of
that
probable is
command he
this
establishes
issued
because
contradiction maslahah terms
2 7
of
—
the
Ibid.,
f.
Al-Razi,
the
of
first
that
it
can
condition He
that
the
cit.,
part
f.
9a
II,
f.
90b
101
proofs,
commands
explains, however,
(human need);
part I,
the
be shown
maslahah.29 Giving six
Muctazilah the fuqaha'
cit.,
to be
that the case in question
13a op.
three premises
issued the commands for
general significance
op.
that to prove that
for God issuing this particular
masalih. the
are
and third,
particular
to
—
Al-Razi,
argues
second,
reason
gharad
as
He
that God
the
consists the
question in detail in his
cillah, there
be
can
established: masalih
as
motive?
or
cause
If it
corresponds with the rational good or not.
are
that in
do not
regard
they rather view it in
(macna)
or
hikmah
(philosophical basis).
In fact,
difference
two
between
follows:
as
the
whereas
the
positions. The difference is
Muctazilah believe that God is
obliged to consider maslahah, is
obliged to do
not
grace.30 third a
there is not much
so.
the fuqaha'
God has done
so
stress
that He
because of His
The second condition needs no explanation.
condition,
that
this particular command attributes
specific motive to God's acts and commands,
position which al-Ghazall does not this
resolves
The
is
a
accept.31 Al-RazI
problem by explaining it in the following
terms:
"Muslims
believe
heavens,
the
that the revolving of the rising and the setting of the stars, the continuity of their forms and the lights are not obligatory, yet it has been God's custom to continue them in one state. Inevitably it provides the probability that this (i.e what happens today) will continue tomorrow and after tomorrow with the same qualities... To sum up, if a certain thing occurs repeatedly many times, it gives the probability that when it happens (next) it will happen the same way... Now, when we observe sharaic (laws), we find that the commands and masalih occur together, without being separated from each other, this is known
inductively...32
To
can
be
sum
__
32
God's
that
God's
commands
f.
cit., part II,
op.
Al-Ghazali, Ibid.,
to
acts are
or
for
—
Al-Razi, 31
al-RazI stresses that
attributed
admits
in
up,
op.
cit.,
f. 91b
part II,
f.
92b
102
92a
no
motive
commands; the
or
cause
yet he
maslahah
of
the
people, and this maslahah or munasabah can be considered as
an
cillah for
command.
that
The
paradox in this
position is resolved in two explanations: these
masalih
coincidental
are
accidentally, not in terms of
with cause
God's
first,
that only
acts,
and effect and,
secondly,
that it has happened this way not as a
necessary
correlation between maslahah and command,
because
God
God
acted
has
established
Al-Razi the
is
not He
has
as
make
His
command
as
to
obliged to act in this
has
offered
a
Grace,
these
so
Rather,
way.
that
a
sign
may
be
known.
explanations in view of
possible objections against his admission of taclll
afcal Allah
(to attribute causes
to God's acts).
It
is
significant to note that al-Razi recounts the possible criticism of is
very
consists
his
short and quite unsatisfactory. of
more
Al-Razi's two
main "We
position in detail while his
than
ten
to
answer
points in his
own
defence
The criticism
objections.33 this
criticism
answer
are
have
as
is
very
brief,
follows:
explained that God's commands are issued (mashrucah) because of the masalih. As to the rational arguments that you have enumerated, they are not applicable here (ghair masmucah). Because if they are established, they would infringe upon the legal obligation (taklif), whereas the controversy over analogy whether in favour or in opposition, is based on the acceptance of the obligation. This well-considered answer is
33
See
al-Razi,
op.
cit.,
ff.
92
-
97
103
sufficient
for
all
what
mentioned".34
have
you
"Secondly, your criticism applies to those who mantain that to attribute masalih as Hillah to God's commands is rationally necessary. It is not
applicable to the one who holds that it is not obligatory for God but He has done so because of His Grace".35
al-Razi
Thus
masalih that
evidence
were
God's
could maintain
commands
reservation definition
munasib.
of
divides munasib
no
al-Razi
that
into
motives.
is
in
consists
the
fact
it
of
hereafter.
this
also
the
reason
a
(true)
in
appears
al-Ghazali,
this
world
haji and tahsini.
ta'thir
(effect) and shahadat al-sharc
evidence),
He divides munasib according
(textual
mula'amah (suitability).37
and
generally in agreement with al-Ghazali.
36
37
Al-Razi,
one
to be a munasib;
With the
exception of certain differences of detail, he is
35
or
in
al-Razi also divides maslahah into
daruri,
34
and
Haqiqi is that munasib
maslahah
Iqnaci only
he
that
not.36
is
Like
either
is with
It
categories: haqiqi
iqnaci (seemingly convincing). which
or
apparently accepted the first
This
two
munasabah
cillah, and could still insist
for
had
that
op.
cit.,
f.
97b
Ibid.
Ibid.,
f.
Ibid.,
ff.
88b 87
-
90
104
to
In
the attempt at expressing the concept of
general, in
maslahah
theological terms by al-Ghazali
by al-Razi with much that
conception of maslahah with reference to human
a
benefit not
objection
independent of God's determination,
Al-Razi
is
this general
gave
specific theological content. He made it
a
that
even
in
maslahah
attribute
to
and
alone
theologically possible.
clear
Al-Ghazali objected
emphasis.
more
completed
was
attribute
to
terms
of
the
consideration
benefit
human
to
God's
of
commands,
is
causality to His acts and hence
theologically impossible. Both of these positions led to a
kind
of
demand
commands of
ijbar
maslahah. -
»
If
(determination)38 obedience there
their
existed
Sharicah,
it
was
accident,
as
al-Razi held.
to
in
Both implied that God's
the
right,
own
not because
of maslahah
content
a
a
in
be explaned by the grace of God or These positions
rendered the
question of moral and legal responsibility meaningless. Al-Razi the
admitted
such
question of taklif
reasoning by analogy,
implications of his position for as
well as for the problem of
but he did not elaborate it
further.
Briefly, the concept of maslahah which originally as
18
such
a
a
general method of decision for
free
principle,
came
—
was
jurists and
to be limited by the
—
—
probably this is the ijbar which al-Shatibi refers, Al-muwafagat, vol. 1, pp. 19 - 20 Most
105
see
by
opponents of
this concept through two considerations.
First,
was
to
there
define
theological determinism which tended
a
maslahah
whatever
as
God
commands.
Second,
there
was
a
avoid
the
apparent arbitrariness of the method,
methodological determinism which, aiming to
subject maslahah to qiyas definite
First,
basis.
even
to
some
criterion
be
to decide
outside
This
was
determinism denied. the
to link it with some more
that
were
inadequate.
something is maslahah,
that God's commands are based on maslahah,
say
accepted.
seek
as
considerations
Both
in order
so
tried to
these
reasons
has
inevitably to
precisely what theological
Second,
cillah, which
theological
commands
or
to proceed by qiyas,
was
either
was
interpreted
one
must
denied because of so as
to mean
"sign". The implication of this position is obvious. On the
in
be
must
it insisted that further
hand,
one
units;
every
new
specific link in Sharicah. as
whole.
a
into
needs
On
the
other
deduction must have
a
it
because
refused to take social
it insisted upon
deducing laws from specific rulings of Sharlcah, from
4.6
the
THE
PERIOD
If
not even
general intent of the law.
MAIN
TRENDS_OF THE CONCEPT OF MASLAHAH DURING THE
BETWEEN
we
may
AL-RAZI
AND
AL-SHATIBI
take general note of major works on usul
during the period between al-Razi and al-Shatibl, see
rules
It denied the extension of law
hand,
consideration,
extension of
further
trends
in
these
works.
106
The
first
trend
we
can
refers
to
those
to
that
whose of
al-Razi
al-Ghazali's maslahah.
conception of maslahah is either similar those
or
and al-Razi's
Among Maliki
who
have
simply juxtaposed
definitions
of
munasib
and
jurists Shihab al-Din al-Qurafi
(684/1285)39
and among Hanafis Sadr al-Sharicah al-Mahbubi
(747/1346)40
stay closer to al-Razi. Accepting al-Razi's
criticism of maslahah, raised
serious
defined
and
Jamal
al-Subki
doubts
al-Qurafi whether
maslahah
(771/1370)42
al-Asnawi
(771/1369)43
second
al-maslahah
trend
refers
al-mursalah
as
a
to
those
in reference
jurists who reject
valid basis
Al-Q3rafi, Tanqih al-fusul fi cilm al-usul, {Cairo: Matbacah Kulliyyat al-Sharicah, 1961],
49
Sadr al-Sharicah al-Mahbubi, Al-tawdih tbacah Bosanawi, 1304 A.H.}, pp. 536-540 See
M.
Khalid
wa
of
reasoning.
In
in Al-dhakhirah pp.
144 -46
al-tanqih
Mascud, Islamic legal Philosophy,
{Cairo:
[Islamabad,
Ma-
1977],
235 al-Din
Jamal
Minhaj al-wusul al-tahbir 43
the Hanafi
(482/1089),
39
42
Sacd
al-Razi.
The
p.
be
combine al-Ghazali and al-Razi.
position, mainly that of Pazdawi
41
ever
and Taj al-Din
(792/1290)44 interprets
al-Din al-Taftazani
to
could
He
terms.41
justified in clear
al-Din
further.
went
even
al-Asnawi, Nihayat on
al-usul, Commentary on Baidawi'S Ibn Amir al-Hajji's Al-taqrir wa 1317 A.H.} vol. 3, pp. 134-140
the margin of
{Cairo: Bulaq
,
Taj al-Din al-Subki, Jamc al-Jawamic in cAbd al-Rahman al-Bannani,
Hashiyah cala matn 2,
pp.
44
Sacd
jamc al-jawamic,
{Cairo: Mustafa Babi, 1937}, vol.
270-285 al-Din
Bosanawi,
1304
al-TaftazanT, A.H.} vol. 2,
Sharh pp.
al-tawdih
548-683
107
wa
al-tanqih
{Cairo:
this
category fall the ShaficI
(646/1249)45
al-Amidi
(646/1249)46
them
To
follow
maslahah
a
and the MalikI,
Ibn Hajib
their arguments against al-maslahah
In
both
al-mursalah
jurist Sayf al-Din
is
al-Ghazali
rather
than
al-RazI.
acceptable only if it is textually
supported.
third
The
is
trend
illustrated
by the ShaficI
jurist, cIzz al-Din ibn cAbd al-Salam (660/1263). He inclined
inclination
towards
of
treatment
the
Sufistic
The
masalih
masalih of
this
The
can
former
noticiable
interpretation of law in his
world be
means
(happiness) and the
are
then
and
known
only be known by naql
45
a
concept of maslahah.
(pleasure) and farah
them.48
is
There
cAbd al-Salam maslahah
Ibn
To
tasawwuf.47
towards
was
by
divided
into
the masalih
means two
the
leading to
kinds: hereafter.
while the latter
reason,
(tradition,
of
ladhdhah
revelation).49
Sayf al-Din al-Amidi, Al-ihkam fi usul al-ahk'am, vol. 4, pp. 215-217
can
In view
{Cairo: Matbacah
Macarif, 1914}, 48
Ibn
vol. 4^
2,
Ibn
Hajib, Mukhtasar muntaha al-usul {Cairo: Bulaq, p. 289 cAbd
Al-Salam
was
initiated
into
1317
A.H.}
Suhrawardiyyah Tariqah
the
joined the Shadhiliyyah relationship with Ibn cArabi has, however, been a subject of dispute. For details see Ridwan cAli al-Nadawi, al-cIzz ibn cAbd al-Salam, {Damascus: Dar al-fikr, I960} pp. 103 - 110 [Sufistic order].
Tariqah.
48
He
is also claimed to have
His
cAbd al-Salam,
Qawacid al-Ahkam fi masalih al-anam, {Cairo: Istiqamah, n.d.} vol. 1, p. 10
49
See
Ibn
Ibn
cAbd al-Salam,
op.
cit.,
vol.
108
1,
p.
10
of
the
the masalih differ
people's knowledge, however,
according to the level of the approach of the people. lowest
of
level
masalih
which
that
Higher than this is the level
men.
(the wise people) is
is
masalih k
of
s_
The awliya'
reason
is
commands
the that
and
hereafter the
laws
common
to
all
which the adhkiya'
on
conceive the masalih. The highest level
peculiar to the awliya'
Sufis) alone.
is
The
Allah (friends of God, and asfiya' those
to
awliya'
are
of
(pure)
the
prefer the
this world.
The
anxious to know His
(in their reality),
hence their
investigation and reasoning (ijtihad)
is the most
complete.50 Elsewhere,
into two major divisions.
"rights" of
God,
fall God
second, men
and second,
into such
such
Ibn cAbd al-Salam divides masalih
three as
the
rights of
categories:
macarif
First men.
are
as
the rights
The rights of God
rights which belong purely to
(gnosis) and ahwal
(mystic states);
rights which combine rights of God and those of as
zakat
(alms);
and third,
those which combine
rights of God, and of His Prophet, and of the people in general.
The rights of men are also of three categories:
rights of nafs and
rights of
rights of animals toward
Ibn 51
(self),
cAbd al-Salam,
Ibid.,
p.
op.
cit.,
p.
men
men.51
24
129
109
toward each other,
The
his
above
references
Qawacid al-ahkam,
which
recurrent
are
indicate that Ibn cAbd al-Salam's
legal thinking was deeply influenced by mysticism. instance,
realization of
which aimed
where
usul
al-fiqh.
details
of
history.
rights
Sufi
the
came
to permeate
is not possible at this point to go into
It
It must,
conception of human masalih and its be pointed out that at
however,
a
very
rejection of huzuz al-nafs became significant as a
(pleasures of the animal soul) of
lower in rank than one
conception of masalih
early stage in Sufism,
means
as
maslahah aiming at
Ibn cAbd al-Salam represents the stage
Sufi
the
such
a
macrifah and ahwal.
at
fact,
In
For
although he did not reject huquq al-nafs
(rights of the soul), he considered the
in
themes
controlling the nafs.
al-Lumac, huzuz al-nafs
In Sarraj's
(378 A.H.)
frequently opposed to huquq
are
al-nafs.52
Zuhd
(denial of worldly pleasures)
huzuz.53
abandoning the
52
R.
A.
Nicholson
fi
al-tasawwuf,
of
terms
sawwuf
cf.
Abu
ed.
Luzac,
al-Babi,
pp.
5-6
—
—
I960},
r
Al-tacarruf li Madhhab ahl al-ta¬ p.
[Wiesbaden:
23; Najm al-Din Rubra, Fawaid Steiner, 1957], p. 71
[text]
Sarraj, Kitab al-Lumac fi al-Tasawwuf
Ruwayn b.
—
in Abu Nasr al-Sarraj, Kitab al-Luma^ 1914], p. 134. For this opposition
al-Kalabadhi,
Fritz Meier,
[Introduction], See
Bakr
as
The huquq are defined as ahwal,
Comm.],
[London:
(Cairo:cIsa
al-jamal,
[Ed.
is defined
Ahmad}
110
p.
47,
(quoting Sufi
its
had
Huzuz
apparent connection with masalih,
in
allowance) warac
of hardship.
case
(piety) and ikhlas
huzuz.
tasawwuf
obvious
An on
them
"when
faqlr
(holy man)
his
to
huzuz
him and
of
ibid., Abu
56 57
Abu
p.
violates
the
still stronger. Abu al-Hasan al-Shadhill
used
to define
tawhld
as
a
curse
(oneness of God)
al-nafs.57
from God when someone is found so
to be barred from cubudiyyah
336
cAli, 1948},
p.
Al-risalah fi cilm al-tasawwuf,
See
cAbd al-Halim Mahmud, Al-madrasah al-shadhiliyyah
n.
{Cairo:
181
above
54
al-Hasan al-Shadhuli, p.
in
He also
See
A.H.},
mutual
period of al-Shatibl, the opposition
al-Qasim al-Qushayri,
Muhammad
with God and
he
God.55
indulging in the huzuz
55
falls down from the level of
abandoning the huzuz
explained it
54
to his disciples where he
with whom Ibn cAbd al-Salam is claimed to have
connections,56 terms
the
to
appears
(656 A.H.)
be seen in
to that of rukhsah of Sharlcah,
covenant
between
Closer
may
against opting for such allowances because
haqlqah (reality) dissolves
required abandoning
example of this encroachment of
fiqh and usul al-fiqh
advised a
The Sufi stress on zuhd,
(devotion)
al-Qushayri's wasiyyah (will)
bond
and
particularly, with the question of rukhsah (legal
more
of
etc.54
(high ranks),
maqamat
{Cairo:
Dar
130
111
wa
al-kutub al-hadithah,
Imamuha
1387
(servitude).58 cAbbad al-Rundi
Ibn
with whom al-Shatibi
(792/1390), in
was
the famous Shadhuli,
correspondence
on matters
relating to tasawwuf and fiqh, also stressed the
rejection of huzuz. Commenting sayings) of Ibn cAta' Allah, nafs if
on
the Hikam (wise
Ibn cAbbad said that "the
always seeks huzuz and turns away from huquq;
you
are
confused in two matters,
harder
for
the
hikam he
needs)
nafs.59
a
is
provide
achieved
not
because
in
sawm
sawm
and
serious
utility.
Sufi
60
b.
cAbd
there
or
is
a
salat
(praying),
possibility of hawa
(lust).60
of
obligation to God,
thus, had
It not only denied human interest as a basis of but also
al-Halim Mahmud,
insisted
op.cit.,
p.
on
abandoning human
137
Ibn cAbbad al-Rundi, Sharh al-hikam li al-Imam Abi al-Fadl Ahmad cAta' Allah al-Iskandari, {Cairo: Mustafa Afandi, 1320 A.H.}, p.
99
60
Situations of
implications for maslahah in terms of human
consideration,
58
view
(fasting)
salat
(desire) and shahWS
The
Ibn cAbbad
disciple with purity of heart, which
a
by
the
contrary to an ordinary Muslim,
pleasure by loosing his huzuz.
neediness
on
(trial by wants and
happy occasion for the disciples",
explained that the Sufi, finds
commenting
"the coming of faqat
says:
is
always choose what is
in
Elsewhere
hence
Ibid.,
p.
106
112
interests
to
purify the obligations
obedience
to
God".
These
implications
recognized by the jurists. Sufi was
view,
but
either
led
"complete
as
were
not generally
Ibn cAbd al-Salam accepted the
in his attempt to synthesize the two, to
deny the masalih
he
of this world
altogether, or to accept the two on separate grounds.
The
fourth
trend
is
represented by Ibn Taymiyyah
(728/1328) and his student Ibn Qayyim al-Jawziyyah
(751/1350).
Ibn Taymiyyah tried to find
between
two
the
extremes
acceptance of masalih. similar
al-mursalah
of
total
a
middle
way
rejection and total
He considered al-maslahah the
to
methods
of
ra'y, istihsan,
kashf
(mystic revelation) and dhawq (mystic taste)
whose
validity he
them.
On
the
was
other
suspicious,61
hand,
he
of
and hence rejected
refuted the moral
implications of the denial of maslahah to the commands of God.
Ibn one
of
Taymiyyah also counts al-maslahah al-mursalah
the
seven
ways
as
of knowing the commands of God,
along with the traditional
sources
al-maslahah
follows:
al-mursalah
as
of law.
He defines
a decision) when a mujtahid considers particular act seeks a benefit which is preferable, and there is nothing in sharc that
"(It is
that
61
See
Ibn
khawariq Manar,
a
Taymiyyah,
al-cadah,
1349 A.H.],
in
Qawacid fi al-mucjizat wa al-karamat wa anwac Majmucat al-rasail wa al-masail [Cairo:Matbacah
vol.
5,
p.
22
113
Ibn
al-maslahah
to
istihsan and
opposed to maslahah,
in
hah
certain
a
citation
in
the
Either
meant.
to
on
legislate in
observer
does
maslahah
at
there not
all.64
to
be
is
there
found,
The
or
is
one
obvious
reason
no
Sharicah
finds masla¬
supporting
only two things are
definitely is
know
Haqli
He admits that
but when human
where
case
text
tahsin
reasoning).63
(legislation through is
is
al-mursalah
argue
religion, and God has not permitted this. To
similar
is
so
of
of
matters
do
Taymiyyah, however, concludes that to
basis
the
(consideration).62
this
opposes
a
text which the
not
dealing with
assumption in Ibn
Taymiyyah's arguments is that all the possible masalih already given in the text.
are
of
course,
maslahah.
The other assumption is,
that all of God's commands The
latter
are
based
on
assumption is of particular
significance to Ibn Taymiyyah,
as
moral
matter which he stressed
very
responsibility of
man,
a
it has to do with the
much. He condemned both the Muctazilah and the
Jabriyyah in reference to the question of maslahah. Muctazilah argued that God
fi 9
63 64
Ibn
Taymiyyah,
Ibid.,
p.
op.
cit., vol.
is obliged to command only
5,
23
Ibid.
114
p.
22
The
is
what
good for man.
They conceived God's actions
analogous to man's actions.
as
They assumed that whatever is
morally obligatory for man must be obligatory for God. Ibn
Taymiyyah refuted this. But he also refuted the
Jabriyyah position that God's commands
not based on
are
maslahah.
He
questioned their assumption that the
intention
of
maslahah
The
is
Jabriyyah argued that
iradah
(will).
limitation
a
command does not necessitate
a
Ibn Taymiyyah saw in this argument a
theological advantage, but morally such harmful. two
clarified
He
kinds
of
iradah;
in
that
commands
He
God
to
was
there
are
al-iradah al-sharciyyah al-diniyyah
and al-iradah al-qadriyyah
(the potential creative will). When God wills
the
first
kind
of
consideration of maslahah,
The
doctrine
a
reference
(the legal and religious will)
al-kawniyyah
God's acts.
upon
will.65
or
as
following Ibn Taymiyyah, often calls it,
(polity), plays
an
Ibn Qayyim,
siyasah
important part in explaining legal
obligations, legal reasoning and legal change in Ibn Qayyim's Iclam al-muwaqqicin. He expounds the principles of
Hanbalis
sources
and
fiqh, and enumerates the following five
principles:
(1)
Companions of the Prophet; of
65
the
See
Companions;
Ibn
Taymiyyah,
(4)
op.
Nass;
(3)
(2)
p.
30
115
The fatawa of the
Selection from the opinion
Hadith mursal
cit.,
as
(a report of a
saying of the Prophet which lacks
a
link in the chain
going back to the Prophet); and (5) Qiyas li
al-darurah.66 that
sourcres
Ibn
it
Thus the
in
is
reference
to
the
consideration of maslahah
three
is
expounded.
Qayyim explains that it is valid to attribute cillah
to
the
commands
of
the
Prophet themselves are replete with examples where
reasons
are
of
God,
because the Qur'an and the Sunnah
given to explain the
command.67
The larger
part of the Iclam is devoted to illustrating how various commands hikmah
are
or
The
his
based
certain
which
reasons
he
calls
maslahah.
following
views
on
on
"fatawa may
contains
passage
maslahah.
In
a
a
clear statement of
chapter where he explains how
change according to the change in time and
place, etc..." he says: "This
chapter is of great significance. Due to ignorance of the matters [to be discussed in this chapter] grave errors have been committed in reference to Sharicah. As a result hardship and severity has been brought forth [upon people]. Such obligations have been imposed as are not required, if one judges by the magnificent Sharicah which keeps the highest level of masalih♦ The foundations of Sharlcah are laid on the
the
hikam and masalih
al--ibad,
in this world of
living (macash) and in the world of return (macad). The Sharxcah is all justice, kindness, masalih and hikmah. Hence any case which departs from justice to injustice ... from maslahah to mafsadah is not part of Sharicah even though it has entered there by ta'wil ...
66
1, 67
See
pp.
Ibn Qayyim, 29-32
Ibd.,
p.
Iclam al-muwaqqicin,
197ff
116
[Cairo:
Sacadah, 1955], vol.
(interpretation),68
fi fl
Ibn
Qayyim,
op.
cit.,
vol.
3,
117
Chapter 5 AL-SHATIBI'S
TREATMENT
'
OF
MASLAHAH •
5.1
THE
MAQASID DOCTRINE
The
Islamic
al-Sharicah"
jurisprudence regards "maqasid
or
the
ends
and
basic doctrine.
The
laws
of
because
are
Maqasid al-SharIcah and that
human
goals of the Sharicah as the
Sharicah
are
its
promulgated
they conform with the objectives of God and the
objectives of God
one,
•
or
also the masalih of mankind. the goals and ends of Law are thus
is maslahah
the good and welfare of
or
beings.
The
"maqasid doctrine"
is based
on
a
generally
agreed premise which is theological in its origin. The
premise is that God instituted the sharaic masalih
(benefits,
future.1
and
opinion
There
among
good)
(laws)
for the
of the people, both immediate
exists,
however,
a
difference of
scholars concerning the details of this
premise.
The
mutakallimun
accept the general and apparent
meaning of the premise, yet they differ from about
of
1
2,
whether
cilal
See p.
the
(causes).
al-Shatibi
masalih
are
to
be
As we have seen
Al-muwafaqat,
one
understood
in the
case
[Cairo: Mustafa Muhammad,
6
118
in
another terms
of
n.d.],
vol.
al-Ghazall
explicit
as
God.
them,
For
the Ashcari
and al-Razi,
well
as
implicit causality in reference to
the premise implies that God is obliged by
consideration of masalih
the
Since
such
obligation
an
theologians reject
to
act
proposes
in
a
certain way.
limitation
on
God's
omnipotence, the Ashcaris reject the idea that the masalifr the
of
the cilal
are
of sharaic.
They,
however,
accept
premise by interpreting the masalih to be the "grace" God,
rather
than
"cause"
the
of His acts.
On
the other
hand,
the Muctazilah,
God's
omnipotence, yet believe that God is obliged to do
though they too maintained
even
good. Consequently they accepted masalih
as
the cillah of
Sharlcah.2
The
God's
theological disagreement initially concerned but
acts,
Qur'an
it
was
in the
extended to God's commands
they constitute His acts of speech. Thus the
as
theological disagreement manifested itself in usul al-fiqh
as
Theological arguments penetrated into
well.
usul
al-fiqh also because
were
theologians.
Usui
and
2
See
M.
Research O J
al-fiqh, however,
method
a
a
Khalid
of
on
required
of thinking
a
manner
reasoning different from that of
Mascud,
Institute,
number of writers
Islamic legal philosophy,
1977],
p.
usul
kalam.3
[Islamabad:
222
—
Kalam
expos
is
that
part of theology which deals with dialectical
it ion
119
Islamic
Legal thinking necessitated that the volition for
voluntary human acts must be attributed to is
man
himself if
to
be
held
obedience
to
Divine
volition,
the Command must be shown to be motivated by
man
legally responsible for his acts. Commands
consideration of
the
thus
depends
interests.
human
Since
human
on
Consequently,
the
premise of masalih must be accepted in usul in terms of "cause".
The
in
usul.
usuliyyin
Some
in order
others,
views,
premise of masalih
redefined the
connotation of sense
it
was
kalam
to
usul,
change. usul,* m
5.2
to be
we
For
came
to be generally accepted
(lawyers),
such as al-Ghazali and
consistent with their
term
"cillah"
so
as
to
theological rid it of the
"causality" and "motivation" in which
used
the
and
disputed in kalam. Passing from
term cillah
thus underwent
a
semantic
the explanation of the meaning it acquired in
now
turn
THE MEANING
Al-Shatibi
OF
to al-Shatibi. •
CILLAH
IN
USUL
explains that
al-Razi4 held
that like His
acts,
God's commands also cannot be analyzed in terms of
cilal
(causes)
Commands the
whereas the Muctazilah believed that His caused
were
masalih of
the
people.
cilal be established
4
For
al-Razi's
views
(mucallalah) by the consideration of
on
Since it
for
al-ahkam
this
point
120
see
was
inevitable that
al-sharciyyah (the
chapter four above
rules the
of
usul
rule
Sharlcah), the cillah came
known
interpreted
used in connection with
as
"the sign that makes a
specifically".5
Al-Shatibi established
be
to
as
argues
that the premise of masalih can be
Sharicah by method of
in
induction, both
as
a
general theme in Sharicah and in the description of the cilal of various commands Qur'an explains
jihad
as
After
For
the reasons for ablution,
being cleanliness,
oppression,
detail.
in
instance,
the
fasting and
piety and eradication of
respectively.6 explaining this premise,
let's
now
proceed to
explain the details of maqasid al-Sharicah in relation to the
theory of al-masalih al-mursalah.
There are five
aspects;
four in relation to the Lawgiver, and
relation
to
the
mukallaf
doctrine
The
establish maslahah
in
in
(subject of command).
maqasid al-Sharicah is
of
one
an
attempt to
particular and al-masalih
al-mursalah
generally as essential elements of the ends
of
law.
primary objectives
is
the maslahah
The
Sharlcah
of
concern
the
the
(maqasid) of the Lawgiver The obligations in the
people.
attainment
of
the
maqasid of the
Lawgiver which in their turn aim at the people attaining their
5
6
See
masalih.
al-Shatibi,
Ibid.,
p.
Thus
op.
maqasid and maslahah
cit.,
vol.
2,
7
121
p.
6
(or al-masalih
al-mursalah) to
become interchangeable terms with reference
obligations of the Sharicah.
the
Al-Shatibi
defines
the
concept of maslahah as
follows: "I
by maslahah that which
mean
subsistence
of
concerns
the
life, the completion of man's livelihood, and the acquisition of what is emotional and intellectual qualities require of him, in an absolute sense".
This
the
definition of maslahah
Al-Shatibi,
sense.
other
is
human
however,
takes
in which maslahah
senses
in
its
absolute
into account various
can
studied.
be
The
ma?alih belong either to this world
or
to the world
hereafter.
be
seen
Further,
the masalih
can
belonging to different grades and with
a
as
a
system;
definable
relationship with each other. second
The
idea of that
the
in
the
meaning of maslahah is the
"protection of interest". Al-Shatibi explains
the
either
element
Sharicah deals with the protection of masalih
in
a
positive
existence
of
manner
masalih
support their bases.
Or
as
the
when,
in order to
preserve
Sharicah adopts measures
in preventative
manner;
to
to
prevent the extinction of masalih it adopts measures to remove
7
any
Al-Shatibi,
elements which are actually or potentially
op.
cit.,
vol.
2,
p.
25
122
masalih.8
disruptive of
Al-Shatibi,
do most of
as
maqasid like the masalih
hajl
daruriyyah
into daruri
and tahsinl
(needed)
the usuliyyin,
(necessary),
(commendable). The maqasid
called necessary because they
are
divides the
are
indispensible in sustaining the masalih of din (religion and
the
hereafter)
if
that
(this world)
the
world
in
the
termination
it
hereafter
As
is
disrupted too. life
of
results
have
we
darurI
seen
sense
in
in
Their disruption results the
losing salvation and
before
with
(self),
nasi
that
these
five
the
blessings.9
regard to masalih
(family), mal
caql (intellect).10 Scholars,
observed
and in
world,
category consists of the following:
(religion), nafs and
in the
they are disrupted the stability of the masalih
of
the
and dunya
says
principles
are
that
din
(property)
al-Shatibi, have universally
accepted. Analysing the aims of the sharci obligations, find
we
The
that
sharcI
which
positive
obligations be
can
Sharicah also considers
termed
group
can
■»
9
10
op.
p.
(transactions);
8
Ibid.
Ibid.,
p.
groups
The
cibadat (acts of worship), cadat
includes
cit.,
necessary.
be divided into two
w
Al-Shatibi,
as
positive and preventitive.
(practices) and mucamalat
o
them
10
123
and falling
into
the
preventive
group are
cIbadat aim at
jinayat
attainment
the
of
(penalties). the
masalih
of
din.
Examples of cibadat are belief and the declaration of faith
(the oneness of God and the prophethood of salat
and
ha j
j
(prayer),
(pil^yimage)
.
(self) and caql
nafs
clothing and shelter
(alms),
jinayat
as
siyam (fasting)
cAdat aim at the protection of (intellect). are
Seeking food, drink,
examples of cadat.
protect the nafs and caql.
also
a
zakat
Mu^anomaeQ
Mucamalat
Al-Shatibi defines
those which concern the above five masalih in
preventive
manner;
they prescribe the removal of
impediments which prevent the realization of these interests.
illustrate
To
qisas
(legal retaliation)
nafs,
and hadd
the
in
order
and
to
hajiyyat to
expand
remove
and diyah
(blood money)
for
(punishment for drinking intoxicants)
protection of The
jinayat, he gives example of
the
for
-aql.11 are
so
called because they are needed
(tawassuf) the strictness
of
purpose
literal
of the maqasid
sense
the
application of which leads to impediments and hardships and
eventually to the disruption of the maqasid
(objectives). Thus if the hajiyyat consideration whole
11
See
will
are
not taken into
along with the daruriyyat the people on the
face
al-Shatibi,
hardship. The disruption of hajiyyat is,
op.
cit., vol.
2,
124
pp.
8-10
however,
not
the
with
case
daruriyyat.
_a
hardship in
for
decisions
weak
of
practices
disliked noble are
the
and
insufficient
evidence
interest.12
to adopt what conforms
means
in
(cadat) and to avoid those
to the best
manners
which
are
by wiser people. This type of maslahah covers
habits
(ethics, morality).
follows:
as
cause
(irrigation) and in jinayat,
affecting public
Tahslniyyat
in cadat,
may
on
in mucamalat, permission for qirad
hunting;
(money lending), musaqat allowances
sawm
-a
journey which otherwise
fasting etc.;
prayers, of
lawfulness
or
is
as
Examples of hajiyyat are as
concessions in salat and
sickness
of
account
the
cibadat,
in
follows:
disruptive of the whole of masalih,
Examples of this type
cibadat cleanliness
in
(taharah)
or
decency in covering the private parts of the body (sitr
al-cawrah) in
in mucamalat,
etc.;
(najs) and
prayer;
articles
depriving
a
or
freeman
in
a
12
12
structure
See
pp.
the sale of surplus food and water,
for jinayat,
the prohibition of killing
etc.13
regards the above division of maqasid as
consisting of three grades,
al-Shatibi,
Ibid.,
prohibition of the sale of unclean
place of a slave,
Al-ShatibI
manners,
slave of the position of witness and
leadership, etc.; a
in cadat, etiquette, table
op.
cit.,
vol.
2,
11-12
125
pp.
10-11
connected to
one
His
another.
their
detailed
analysis reveals two aspects of
relationships with
First,
one another.
every
grade
separately requires annexion of certain elements which supplement and complement this grade.
requires additional
Every one of the three grades achieve
to
objectives. cannot
realized without
be
(parallel evaluation). two
clarifications:
elements
does
objectives; elements
-
reasons
however,
this
for
these additional
the consideration of the additional
the
a
negation of the original
if the consideration of of
annulment
stipulation
element a
consideration of realization
Al-Shatibi,
of
op.
is
like
the
even
the
its
a
are,
an
original The
first, because the
quality (sifah).
If the
quality results in the negation of the
(mawsuf),
Second,
calls for
negation of the essential
a
bring about
in
qualified object
14
to
that is to say,
consideration of
well.
lack of
tamathul
its consideration will not be valid.
additional
as
amount
not
results
objective,
This position, a
its
(legal retaliation)
condition of
a
first,
second,
objectives element
not
must
realization of
fuller
the
instance, qisas
For
every
others.14
grade is related to the
elements
Second,
if
the qualification is negated it
additional
interests
cit.,
is supposed that the
p.
at
12
126
element the
cost
results of
the
in
the
original
objective,
it is stressed that the realization of the
prefered.15
original objective be
save
is
of
is
illustrated
by the following
The eating of carrion is allowed in the Sharicah
example. to
situation
above
The
life.
utmost
The
reason
is
that
the
preservation of life
importance, and preservation of muruah
(manliness, honour)
is only additional
protection of life.
Impure things are prohibited in order
to
preserve
(takmili)
honour and to encourage morality.
preservation of the additional element, i.e to honour
by avoiding eating impure things,
negation of the original interest, of
life,
the consideration of
to the
But
if the
preserve
leads to the
i.e the preservation
the additional element
is
forsaken.
Another
is
a
example may be seen in the act of sale which
necessary
maslahah while the prohibition of risk and
ignorance in sale transactions is additional. complete negation of risk is stipulated, be
the result will
complete negation of the act of sale.
The
relationship of the above three grades of
maqasid with additional The
is
If the
one
masalih
tahsiniyyat
—
another to
are
the
is the
op.
cit.,
as
that of the
original objective of the law.
thus additional to the hajiyyat which
—
Al-Shatibi,
same
p.
14
127
are
additional
fundamentals
the
to
of
daruriyyat. The daruriyyat
maqasid.
In view of
the
are
the above
explanation, al-Shatibi deduces the following five rules in
this
relationship: (ii)
maqasid;
necessitates
(i)
the daruri
the ikhtilal the
ikhtilal
(disruption) of glarur I of
other
maqasid absolutely;
the ikhtilal of other masalih,
(iii)
necessitate certain
an
sense,
is the basis of all
does not
however,
ikhtilal
of,
the daruri
however,
the
ikhtilal of tahsini
(iv)
itself;
in of
or
hajl absolutely necessitates the ikhtilal of daruri; (v)
the preservation
necessary
(muhafazah)
for the sake of
These
rules
(lex talionis).
may
a
and
of hajI and tahsini is
daruri.16
be illustrated by the rule of qisas
Qisas is daruri,
(consideration of equality)
and tamathul
in qisas is tahsini and
takmlll.
illustrate
To
exists
(tamathul)
To
the
^
is
(qisas)
rule,
tamathul
(daruri).
is the basis of
a
(tahsini)
Thus
maslahah
a
maslahah tahslniyyah
.
illustrate no
ikhtilal
See
first
only because of qisas
daruriyyah
there
the
the
second
consideration of
al-Shatibi,
the
op.
daruri
of
tamathul.
means
cit., vol.
if there
rule,
2,
128
the
pp.
In
same
16-17
is
other
for
no
qisas,
words,
the
other
grades of maqasid necessarily.
illustrate
To
does
tamathul
third
rule,
the
ikhtilal of
require ikhtilal of qisas.
not
fourth
The
the
and
fifth
rules
can
be
appreciated if
one
the sense in which darur1 is affected by the
grasps
ikhtilal effect
of
of
other
other
maqasid.
maqasid
on
following four arguments:
Al-Shatibi explains the necessary
(1)
maqasid with the
The relationship of other
maqasid to necessary maqasid is like that of protective zones
hima).
amounts
The interruption of one protective zone
the
to
interruption of the next
eventually to the disruption of the which
at
the
centre
relationship
may
also be understood
and
are
the
whole;
masalift make
obviously (3)
other
one
means
these
in
daruriyyat.
(4)
whole.
As
See
relation
as
(2)
This
that of the part
The disruption of the parts
to
the
can
be understood
universal,
as
a
prerequisite
as
i.e.
The hajiyyat and tahsiniyyat
serve
(muqaddimah),
the or
(muqarin).17
mentioned above,
-
zones;
the same as the disruption of the whole.
magalifr daruriyyah interrelated
maqasid
necessary
masalih together with the daruri
The hajiyyat and tahsiniyyat
individuals
17
of
and
zone
—
al-Shatibi,
op.
cit.,
the tnasalify are also divided
pp.
16-24
129
as
into
those
belonging to this world and those concerning
the
hereafter.
5.3
THE
TWO
APPROACHES
OF
OBSERVING
THE
MASALIH
OF
THIS
WORLD
There
world
be
can
angles from which the masalih
two
are
observed.
The
first
of this
angle is to observe them
as
they actually exist, and the second is to observe them
on
the
basis
of
clear
a
Examining masalih are
found
not
as
with discomfort may
precede,
the mafasid
but
pure
comfort world a
are and
reason
(opposite of masalih) found to be mixed with
small, which
a
Similar are
are
not
certain amount of
enjoyment. The entire phenomenon in this
opposites and that it is impossible to
(istikhlas)
that
the
only one aspect.
masalih and mafasid
in
It is for this this world
are
only on this basis of the pre-dominant aspect;
considered, considered
customarily, a
mafsadah.
a In
maslahah; otherwise it is these
matters
_
al-Shatibi,
op.
cit.,
vol.2,
130
p.
if
the matter at issue is
determining factor is the prevalent
See
or
which also
aspect of maslahah dominates,
TO
they are mixed
Rather,
follow the masalih.
or
they
points to the fact that this world is created from
abstract
the
Sharlcah.
the
hardship, however big
accompany
combination of
known
of
they exist in this world,
as
masalih.
pure and
statement
26
thus,
aspect.18
the
It
noticed here
be
must
this
that
principle is
applicable only to acts relating to cadah, and only to determination of maslahah
the
or
mafsadah
in
this
world
through knowing them as they exist. Acts which are not cadat
second
The
this
is
world
connection The
basic
mafasid pure. are
affected
not
are
approach to considering the masalih of observe
to
with
clear
in
rule
them
the
consideration
the
reality of the
maslahah m
■
or
is
It
clear
the
the
not
the
the
dominated
are
not
can
they,
Sharicah.20
or
are
they
As explained
is determined
(al-jihah al-ghalibah) of the
predominant aspect which is the object
aspect,
of
Sharicah.
the
The
dominated
whether maslahah or mafsadah is
objective of the Lawgiver. Why is it then that
the
elements,
though they may be maslahah,
when they are not the objectives of Sharicah,
contradiction with
—
Al-Shatibi, p.
even
objectives of Sharicah? On other hand, how
be masalih?
Ibid.,
(khitab).
(mashubah),
_____________
statement
(al-maghlubah)
Sharicah
mafsadah in this world
by the predominant aspect matter.
their
by the Lawgiver
in
so
to
approach is that the masalih
supposed to be mixed
'
19
of
are
not
still
reference
If they
above,
of
in
statement
this
into
taken
as
principle.19
by this
op.
Al-Shatibi the
cit.,
solves
this
apparent
following explanation.
vol.
2,
p.
27
131
26
He
which
is
considered
such
as
according to the acquired
(al-ictiyad al-kasbi) alone, i.e. without adding
habitude the
that al-maslahah al-maghlubah is that
argues
Lawgiver's requirements of maslahah. Customarily,
such
is
maslahah
a
*
*
not
into
taken
consideration.
This
the
part of maslahah which is also not the objective of
the
Lawgiver insofar
rules
(ahkam)
as
as
the sharciyyah (legality)
whole is considered.
a
Further,
of if the
dominated
aspect were also taken into account by the
Lawgiver,
no
act could have been the subject of command
alone
or
of
prohibition alone.
case.
If
it
is
Obviously such is not the
supposed that the dominated aspect in
mixed maslahah
is
the
becomes
and
the
yutaq
the
same
then one and the same
object of command and prohibition at which would have been
time,
a
object of prohibition and the
dominating aspect that of command, act
is
(impossible obligation)
as
a
taklif
ma
one
la
well as absurd
situation.21
The
above
existence
or
(Lawgiver's) elaborates
position the
2^"
occurrence
matter
appear
Muctazilah
See
of
mafsadah
despite the SharicI's
intention to the contrary. Al-Shatibi
the
may
explanation, however, does not clarify the
al-Shatibi,
on
by saying that the above
to be that of the philosophers and of
the
op.
further
existence
cit., vol.
2,
132
and
p.
28
occurrence
of
evil.
According to the philosophers, God created which
the
good is mixed with evil. which is
however,
world
the
create
the purpose of for
evil,
even
world in
a
It is the good,
creation. He did not though evil may occur
along with the good. Muctazilah believed that evils
The to
their
occur;
are
intended
not
is against God's will
occurrence
(iradah).
Al-ShatibI between
basis God.
his
of
first
and
the
discusses
above
distinction
a
First,
al-khalqi al-takwini);
apparent similarity
positions. He
between
two
argues
intentions
intention of creation
is the
there
the
and second,
the
on
(qasd)
of
(al-qasd
the intention of
legislation (al-qasd al-tashrlcl). The position of the philosophers and the Muctazilah al-Shatibi's
mafsadah, is
the
latter.
a
the
man
case
is
held
of al-qasd al-tashrICI,
free
(mukhtar)
of
al-iradah
22
See
above
al-Shatibi,
cit.,
to be
as
al-takwiniyyah,
discussion
op,
so
legally
This position is not justified
imply imperfection in God's
The
the occurrence of
argues,
case
responsible for his acts. in
and
despite God's will and intention for maslahah,
justifiable in the
because
he
As
the former,
concern
p.
as
this would
powers.22
of maslahah
30
133
has
been
concerned
with
the
basis
the
where
where
cases
of
the
actual
the
determining
a
maslahah.
may
for
carrion
case
in
specific dire
of
need
the
prevention of crimes,
the
fact
that
the
are
killing
a
eating
murderer for
considered maslahah despite
themselves
acts
unlike the
and
so
instance,
For
reason.
be used as
There are cases
judgment of general actions is not
definitive
words,
practice
not
are
so.
In
other
in the above discussion where
cases
the
despite their consisting of certain aspects of
acts,
mafsadah, whole,
regarded
are
the acts
themselves,
in the above examples,
though mafsadah in
become maslahah because of certain external
considerations.
The
supposition in this
consideration
external
maslahah in themselves on the
as
consideration.
can
this
How
dominate
domination
the
is
case
is that the
internal
decided
needs
elaboration.
view of
In
positions;
two
such or
a
one
of
situation,
logically,
either both considerations that
manner
above
the
them
can
one
be
cannot
be
are
there are
equal in
prefered to the other,
prefered. The former position
probably does not exist in Sharicah because it necessitates
that
Sharlcah should
intend
prohibition and
permission simultaneously.
Furthermore, is the
still other
if
one
consideration is preferable,
it
possible that the Lawgiver might have intended side.
Both
sides
will
134
always remain to be
weighed by after
a
mu jtahid.
weighing both considerations,
intention of
the
mujtahid,
a
consider to be the
we
Lawgiver, not what is intended by Him in
mind).23
reality (in His of
We are obliged only to do what,
In this way,
after the decision
the possibility of the other consideration
being intended has to be disregarded insofar fulfilling is,
obligation is concerned. The possibility
an
however,
not disregarded
(examination,
A
group
investigation)
insofar
well,
as
of scholars who believed the above case
maintained the principle of
(the consideration of opposition).
this principle,
elsewhere,
nazar
is concerned.
possibility to be applicable in the as
as
of obligations
muracat al-khilaf
As mentioned
to al-Shatibi, meant an
impossible and hence void obligation. Al-Shatibi that
the
sums
up
al-jihah al-maghlubah
objective of
governs
a
24
p.
or
~
—
al-Shatibi,
Ibid.,
is not
This principle
all problems which are subject to ijtihad
always correct
See
(the dominated aspect),
legal obligation.
irrespective of whether
23
the above discussion by saying
op.
one
believes
vol.
2,
not.24
cit.,
32
135
p.
31
a
mujtahid to be
5.4
HOW
THE
MASALIH
So
far
the
also
this
of
masah
THE
discussion
world.
as
well
as
of
God.
basic
rule
oneness
The
been
has
masalih
The
■
mixed
sometimes meted out
hell)
HEREAFTER
*
of
ARE
DETERMINED
concerned with the
hereafter
the are
(such as the attainment of the blessings of
pure
paradise)
the
OF
in
(such as the punishment of
masalih and mafasid
such
they are all determined according to Sharicah, the
reason
due
to
cannot
grasp
being beyond its
Sometimes
considering the instance,
pure
is
that
because
matters relating to the hereafter
and horizon.
scope
confusion may
a
in
to those who believe
even
masalih
arise because of mafasid
or
as
mixed.
the blessings bestowed upon the prophets
For
in
paradise differ from those given to others. Those in lower
ranks
absence
of
may the
be regarded
individual
is
to
members.
their
this confusion arises because
maintained
not
The
special characteristics, relation
being punished by the
blessings given to those in higher ranks.
According to al-Shatibi, distinction
as
between
individual
etc.,
species;
a
species and its
members
may
differ in
but they do not differ in
they are members of the same
species. This membership is the fact that determines their
25
See
wasf
(quality).25
al-Shatibi,
op.
cit.,
vol.
2,
136
a
p.
36
following rules
al-Shatibi deduces the
*
•
characteristics of maslahah;
as
in
and
the
hereafter,
but
in
disrupt the system of sharc;
(ii)
masalih
(iii)
above
be
to
to
takalif ahwal
The maslahah
abadi
be
and is
that
(eternal,
and camm (general)
(universal)
and
absolute;
considerations
two
instituted
of
(conditions,
above to
be
based
on
ahwa'
al-nufus
both
and
equating
a
(personal
of
above
relative
that they do not
the Sharic intends the the reason for the
Sharicah has been
continuous),
kulli
in relation to all kinds
(subject of command)
mutlaq
thus
(absolute) means
require
and kulli
that masalih should
subjective. Relativity is usually maslahah with one of the following:
(selfish inclinations), manafic
aghrad
(selfish
(fulfilment of desires) and
interests). According to al-Shatibi all
considerations and
render
the
concept of ma si ah ah.
subjective, which is not the
consideration of
the
Lawgiver with regard to maslahah,
though it may be so in customary law.
He
26
The
states).26
advantages), nayl al-shahawat
the
way
characteristics
three
relative
be
a
(obligations), mukallafin
(universal). The absoluteness not
(i)
of legislation is to establish masalih in this
purpose world
discussions,
above
the
From
argues
Al-Shatibi,
op.
on
the following grounds:
cit.,
p.
37
137
First,
the
objective of Sharicah is to bring the mukallafin out of dictates
the of
of
This
God.
their
desires
so
to
as
make
them
servants
objective negates the consideration of
personal liking as an element in the consideration of maslahah.
the masalih cannot
Second,
manafic because in cadah mixed with that
benefit
consideration
life
of
cadah
In
is
masalih
some
constitutes
maslahah.
well
as
in
as
as
mere
sharc they are
disadvantages. The point of emphasis here is
selfish
In
be considered
not
in
essential
in
the
cadah
is
it
nor
sharc..
in
higher goal like the subsistence of
the
basic
consideration
sharc the consideration must
in
determining
still
be
higher, and that is the attainment of the blessings of paradise.
Third,
the consideration of
the
fulfilment of
personal desires also renders the concept of maslahah
highly relative. The consideration of personal desire varies
time.
from It
is
state so
to
state,
relative
person
that
it
to person,
cannot
be
a
and time to
criterion
for
determining maslahah.
Fourth, not
a
consideration of
individual
interests
only to a divergence but, more significantly,
conflict
with
others
and
to
interests.
138
the
leads
also to
deprivation of others'
relativity and subjectivity
Consequently, excluded
sharcI
the
therefore,
must, is
from
are
consideration of maslahah;
be absolute.
it
sharc this absoluteness
In
provided by the stipulation that maslahah must aim at
the
subsistence
not
to
5.5
MASLAHAH
life
harm
•
•
The
of
life
in
SHOULD
the
in
this
a
way
as
world.
next
UNIVERSAL
BE
characteristic
second
in such
world
of
maslahah
is
its
universality. This universality is not affected by the takhalluf
(falling short)
instance,
the penalties are
universal
rule
that
of its particulars.
imposed
on
For
the basis of the
they generally restrain people from
committing crimes. Yet,
there are people who,
despite
being punished, do not abstain from committing a crime. such exceptions do not affect
Nevertheless, of
the
it
is
the
In the
Sharicah
(the major dominant)
which is
general rule about the al-ghalib al-akthar1
penalty.27
(al-camm al-qatcI) in the
general-definitive element
consideration
of
maslahah.
the validity
This
is
the
characteristic
(al-kulliyyat
(sha'n) of inductive universals
al-istiqraiyyah). An illustration of this universal be
found
in
universals
the
of
a
universal
See
—
—
al-Shatibi,
of
a
language.
The
language are closer to those of the
Sharicah, because both
27
rules
op.
are
cit.,
wadcI
vol. 2,
139
p.
(instituted,
52
may
conventional) universals if
even
(in Arabic grammar,
some
of
their
reference
al-Shatibl
remain valid
for instance)
particulars do not conform to the
particulars.28
majority of In
caqli (speculative). The inductive
not
into
takes
criticism of
the
to
this
characteristics
account
of
consideration
concept by other
maslahah, of
the
jurists. Among them he
specifically refers to Fakhr al-Dln al-Razi, Shihab and Ibn cAbd al-Salam.
al-Dln al-Qurafi their
criticisms.
As
criticisms
these
and
answers
quite relevant to the discussion of maslahah, summary
answered
He has
a
are
brief
of this debate is given below.
Analysing the position of those who favour maslahah, al-Razi
refers
manafic
is
manc
idhn
to
their
argument
that the basic rule in
lawfulness) and in madarr is
(permission,
(abstention).29 Al-Shatibl
rejects this analysis
representation of the maslahah-view.
as
It
an
unfaithful
is not possible
to
speak about manafic and madarr only in absolute terms
as
they do not exist
absolutes in reality;
as
they are largely relative. refer into
28 29
See
to
the
clear
consideration
al-Shatibi,
Ibid.,
p.
op.
Secondly,
statements
the
of
the
differences
cit.,
pp.
52-53
40
140
actually
since the masalih Sharlcah which take
among
persons,
times
and
it
states,
Third,
since
is
inadequate to talk in absolute terms.
manafic
no
mixed with madarr,
will
also
have
Shihab al-Razi's
accept that idhn and nahy
that
al-Din al-Qarafl,
Al-mahsul,
had
realized
and
because
terms,
hence
mubah
so
first,
defined
maslahah
no
(pain) and mafasid
of
the principle
legal obligations.
because maslahah cannot
in
can
simple and absolute
be gained without alam
(evils). Thus to maintain that
(permissible thing) must be based
amounts to
basis
on
argued that maslahah cannot be the basis of ibahah
(permission). This is be
which is absurd.
-
doubts about
the
we
(prohibition)
the commentator
some
constituted
maslahah
not
are
accept al-Razi's principle,
we
apply to one and the same thing
can
He
to
if
be found that
to
are
to
on maslahah
complete negation of mubah.
a
Second,
in order
that maslahah is the basis of obligation,
argue
maslahah
must
reference
be
defined
certain
to
of preference of
another
is
never
in absolute
terms
in
not
specific consideration to
one
ending and because it does not provide
universally accepted basis of definition. position cannot be supported
maglafoah is
and
specific factors, because this
process
this
every
that whose violator
on
Furthermore,
the grounds that
is punished by God.
This
*
definition on
the
manner
the
is
not
acceptable because it is based either
assumption that God punishes only evil and this of
argument
assumption that
is dawr every
(arguing in
a
circle),
obligation from God is
141
or
a
on
a
maslahah
simply because it is
Al-Qurafi adds to
maintain
as
well.
for
that
ashabuna
an
obligation. difficult
the maslahah view
is
(our
the Ashcaris)
colleagues
-
They cannot say that God takes maslahah into
consideration
against mafsadah,
over
because there
are
mubahat in which this consideration is lacking. The
many
only proof they have is an argument on the basis of the induction claim of
the
know
to
fiqh♦
that
of
obligations, and this also is based on
the
They are thus necessarily led to the position actions,
God's
entirely dependent Muctazilah
To
were
discussion of that
method
led
also
the a
consideration
to
practice
as
survey
basis
the
well.
the
same
al-Shatibl
conclusion.30
refers to his own
relativity of maslahah.
is
what
Second,
he
of the rules of Sharicah by the that Sharlcah has taken into
regarded
He argues
method
are
His will and nothing else. The
on
induction proves
of
of
commands and considerations
al-Qarafi,
answer
answers
rational explanation)
(secrets,
asrar
a
of
maslahah in customary
as
that such
induction
a
survey
on
the
provides the dawabit
(determining factors) of maslahah. The examination of the events
by
way
of induction where al-takallf al-sharciyyah
(legal obligations) that
Tfl
takalif
these
have been realized in practice shows and mubahat
did
_
See
al-Shatibi,
op.
cit.,
vol.
2,
142
p.
42
not
harm
human
interests
(or masalih)
established
them.
cAbd al-Salam had distinguished between masalih
Ibn
al-akhirah
al-dar
but have conformed to them and
(the hereafter)
and al-masalih
al-dunyawiyyah
(benefits belonging to this world)
basis the
that
the
former
latter
are
known
can
be
known
by needs,
wants
know
to
experience, practice and says
he may simply
maslahah,
a
the
only by sharc while
by consideration of probability. He even one
on
that when
find it
rationally,
supposing that the Sharic has given
indication.
Judgment is reached rationally in this manner
except masalih
in the or
case
mafasid
Al-Shatibi, to
him
not
by
of tacabbudat are
(acts of worship)
and hadha al-qail
masalih
in
the
masalih
of
this
hereafter world.
are
distinction between
are
not
independent of the
Hence
not
only al-masalih as
long as they
known by Sharlcah alone. the
(some
(this speaker). To al-Shatibi
al-ukhrawiyyah but also al-dunyawiyyah,
obligations,
refers
but by terms such as bacd al-nas
person)
are
where
given.
not
quoting Ibn cAbd al-Salam here,
name
no
two
masalih
were
If the
absolute,
the
sharc would have been concerned only with al-masalih
al-ukhrawiyyah. establishment Al-Shatibi statement
In
of
the
refutes that
fact,
the
to realize
the ukhrawiyyah,
the
dunyawiyyah is inevitable.
the
implication in Ibn cAbd al-Salam's
dunyawiyyah
143
are
rational and hence the
sharc is additional.31
consideration of
Al-masalih
illustrate
al-mursalah
the
type of new
things where the intention and the act both conform to
32.
of Sharicah.
the
purpose
the
levying of the
of
Sharlcah and the
The
conformity of the act with the intention
in
this
case
understanding of Sharlcah, and further, does
5.6
not
conflict
AL-MASALIH In
disassociates Al-ShatibI
32 qo
See
this
the
them
the
right
the intention
objectives of Sharicah. ARE
IDENTICAL
NOT
WITH
BIDCAH
conformity of al-masalih
maqasid al-SharIcah that
from
—
al-mursalah
—
al-Shatibi,
Ibid.,
the
show
purpose
bidcah
(innovation in religion).
disagreed with the jurists who identified
al-maslahah
31
is
with
al-mursalah
with
AL-MURSALAH
it
fact
this type is
taxes in addition to those prescribed
new
in
texts.
An example of
pp. —
Al-Shatibi,
_
as
_
Al-muwafagat,
bidcah33
vol.
2,
To
p.
him
the
two
were
48
341-42 here,
refers
al-masalih al-mursalah
—
to
Imam Malik
is
whose
reliance
on
strongly criticised by other jurists. Al-Shatibi defends Imam Malik in the following manner: "Malik, adhering to the principle of not applying rational explanations in matters of cibadat revolves entirely around his [approach to] stop at the limit prescribed by Sharicah, [and thus] disregarding what munasib requires... [This is] in contradiction to cadat which are governed according to suitable reason (al-macna al-munasib) which is evident to human reason. He employed laxity (istirsal) with self-confidence and with deep insight in reasoning by maslahah... [He employed this laxity so frequently] that the scholars often condemn him because of this laxity. They imagined that Malik threw off the yoke of Sharicah and opened the gate of law-making. How far it is [from truth], see Al-ictisam, p. 113
144
completely opposed to each he
other.34
To refute such views
argued that first of all the jurists
upon
are
not agreed
exact definition of al-masalih al-mursalah.
an
al-Ghazali
expressed two different views
on
this
Even
point.35
al-Shatibi explains, al-munasib al-mursal
Secondly,
(synonymous with al-maslahah al-mursalah in al-Ghazali's
terminology) which is neither specifically supported by
bidcah. On
the
legal text nor is it rejected,
the
contrary it is supported by the existence of the
which is
genus
al-mursalah,
common
and,
evidence
but
on
Al-Shatibi ten
this genus
is considered
Its validity is not based on specific
its
consideration
illustrates
as
a
whole.36
al-masalih al-mursalah with
Among them are the following events fron
examples.
Islamic
a
between al-Sharicah and al-maslahah
futhermore,
by Sharlcah.
valid
is not
legal history:
the collection of the Qur'an;
determining the penalty for using intoxicants; allegiance to
a
less
of
a
better
common
in
qualified
person
qualified
all
the
ten
for an office in the presence
one.37
He finds three elements
examples.
suitability with the objectives
34
Al-Shatibi, »
35 3^ 37
See
Al-ictisam,
al-Shatibi,
Ibid.,
p.
First is the element of (maqasid) of the
p.115
Al-muwafaqat,
vol.
2,
cit.,
pp.
99-110
p.
98
Al-Shatibi,
op.
vol.
2,
145
96
Sharicah.38 the
Al-masalih al-mursalah do not
fundamentals
Second,
do
because
latter
the
are
not
gives
more
removal of
end of
limited
Al-masalih
(acts of worship)
al-mursalah refer to (human)
impediments which an
prove
are
indispensable
harmful to means
to the
law.40
Al-Shatibi, cannot
Sharlcah.
than ten examples to
following principles: protection of
religion; and protection of
be
the
to
above
thus,
shows
the acceptable masalih
that
equated with bidcah and that they
maintained;
to
of
with
rationally intelligible in
point.39 Thirdly, al-masalih
necessities;
the
evidences
belong to tacabbudat
not
Al-ShatibI
detail.
the
the
they are rationally intelligible.
al-mursalah
this
with
or
conflict
category of daruri,
as
some
are
not
jurists have
they cover other categories as well.
In fact,
explanation of al-maslahah al-mursalah conforms
al-Shatibi's
fundamental
concept of maslahah which is of
significance to the doctrine of maqasid
al-Sharicah.
38
39
Al-Shatibi, Ibid.,
op.
cit.,
instance,
p.
Ill
al-Shatibi explains,
Lawgiver's prescriptions rationally uniform. In case of urine and stool one is obliged only to wash certain parts of one's body, [ i.e to make ablution], but in case of nocturnal discharge, washing of the whole body is obligatory about
40
For
cleanliness
Ibid.,
vol.
3,
from
pp.
human
excretions
113-115
146
are
not
Chapter 6 NAJM AL-DIN
AL-TUFI
MASLAHAH •
AL-TUFI1S
6.1
•
•
TREATISE ON MASLAHAH •
Najm al-Din al-Tufi is in
716
his
His
A.H.
AND
'
treatise
•
Hanbali scholar who died
a
maslahah
on
is
with
connected
commentary on the thirty second of a group of forty
sayings of the Prophet compiled by Imam al-Nawawi which "Do
states:
another". his
not
Since
inflict the
injury
whole
al-Tufi's rest
of
opinion
the
was
injury by
embedded within
treatise
The
its
ninth
THE
OF
text
al-Tufi"
published in the al-Manar journal
THE
the
tenth
part which was
issued in
He
of
said
the
in
"LA DARAR WALA DIRAR"
HADITH
began his views
maslahah by justifying
on
hadith which
that
treatise
al-tashric f_i ma la nass and
short commentary on the margin.
of
volume
above mentioned
treatise.
The
need to separate
A Damascus scholar called Jamal
a
also
was
MEANING
Al-Tufi the
a
1906.1
October,
6.2
there was
did that work and published it in a
special treatise with
144;
analysis
one
the concept of maslahah from the
on
commentary.
al-Din al-Qasimi
1
repay
commentary on the group of forty sayings of the
Prophet mentioned above,
in
nor
"Al-maslahah
by Mustafa Zayd,
the
of
he made
hadith
al-Tufi
in
can
the
question is
also
be
of
core
found
in
a
his
sound
"Masadir
fih" by cAbd al-Wahhab Khallaf, pp. 106 fi al-tashric al-Islami wa Nairn al-Din at
the appendix,
147
pp.
14
-
48
-
Then
one.
chains
weak,
he
of
sound
say
taken together he
So
and
to
on
that this hadith has many
authority (asanid) which, although individually
when
hadith.
went
concluded
give strong support to the
by saying that the hadith is
accordingly necessitates practice. As for the
meaning of the hadith, al-Tufi held it to prohibition of in
any
circumstances whatsoever. This
mischief
to
on
others
means
person
that
side and stoping the making of
one on
the
causing injury to another
someone
preventing evil
mean
the
other
side.
In
explaining the
meaning of that hadith, al-Tufi asserts that the Sharicah forbids
any
harm to be caused to any body except as a
result
of
argues
that the negation of injury in the case of the
Lawgiver
legal measures which require special proofs.
(God)
He
in His divine decree is not inevitable
simply because God judges things with the utmost justice and
impartiality in His Omnipotence. He further
there
are
some
types of
permissible, such
as
injury which
hudud
are
says
that
lawful and
(revealed punishments) and
punishments for various offences. On the question of the prohibition of injury according to the Sharicah, al-Tufi puts forward some ordinances from the Qur'an and Sunnah such
as:
"God
wants
hardship
2
Qur'an,
simplicity for
over
you";2;
2:185
148
you
and does not want
"God wants The
easiness
you"3
for
Prophet is reported to have said:
"Religion (Islam)
simplicity";4
is
and "I
been
have
Al-Tufi
has
introduction ordained benefit
mentioned
life;
these
in order
for
simple
a
of
way
life"5
(texts)
nusus
as
an
that the religion of Islam has been
prove
mankind
to
in
to
with
sent
to
attain
had the causing of
easement
and
injury and the
making of mischief not been prohibited by the Sharicah, there
would
ordinances for
the
have
been
a
Islamic
of
divine
lack
of
balance
in
some
of
the
legislation, which is impossible
revelation.
Thus
the
prohibition of
injuries by the law is the sole meaning of the hadith "la darar
wala
kinds
all
dirar", of
legalised by 6.3 OF
THE
4
Qur'an,
^
a
OPINION
special OF
proof.6
AL-TUFI
maintains
CONCERNING
THE
CONSIDERATION
that
the
consideration
of
benefit
4:38
Reported by al-Bukhari,
al-Nasai 5
injury except for that which has been
BENEFIT
Al-TufI
3
which implies a general prohibition of
and
Muslim, Abu Dawud,
Ahmad ibn Hanbal,
al-Tirmidhi
Reported by Ahmad ibn Hanbal
Zayd, Al-maslahah fi al-tashric al-Islami wa Nairn p.116; and cAbd al-Wahhab Khallaf, Masadir al-tashric al-IslamT fl ma la nass fih, p. 110 See
Mustafa
al-Din al-Tufi,
149
and
the
prohibition of injury is
the Sharlcah which goes beyond and above of
aspect of
ordinances
the
even
of
the
Qur'an,
supports his opinion by saying, of
some
paramount and unique
a
the
of
texts
Sunnah and
"Suppose
we
Sharlcah contain
the
ijmac. He
thought that
some
injury
(i.e the harm is caused by some of its dictates as we shall
this the
this
hadith
hadith,
be
would
if
expel that injury by the use of
exercising both this hadith and
mean
did not expel
we
in this
in
mean
it
case
useless.
No
is
a
the injury by using neglect of one of the
the hadith
doubt,
in question that
the combination of
solving problems is better than neglecting
them.7
of
we
it would then
made
evidences some
it
but
text;
evidences, will
if
later),
see
this
In
connection,
the
he enumerates
evidences
of
Sharicah and restricts them by means of
induction
to
nineteen
Sunnah,
(3)
viz.,
(1)
ijmac of the Islamic Ummah,
people of Medinah,
(5)
qiyas,
Companion of the Prophet,
(7)
istishab
a
(continuation of
ignorance to Islam),
exemption),
7
See
cit.,
(12)
istidlal
Mustafa p.
(9)
a
cit.,
the
ijmac of the
saying of the (8)
practice from the time of
sadd al-dharaic
op.
(4)
(2)
al-masalih al-Mursalah,
al-bara'
(deduction),
Zayd,
(6)
al-asliyyah (original
al-cAwaid (customs),
(10)
(induction), (13)
the Qur'an,
(14)
p.117;
109
150
(11)
al-istiqra'
(preventive measures),
istihsan
(equity),
cAbd al-Wahhab Khallaf,
(15)
op.
ikhtiyar al-aysar
(taking the simple),
(immunity from error),
Shicas);
the
After these
their methodology and their
books
of
usul
rules in
al-fiqh, al-Tufl
explain that the hadith before of
(for
refering the knowledge of the demarcations of
the
to
the house of the Prophet
-
ijmac of the four caliphs.
(19)
evidences,
detail
ijmaG of the people of Kufah,
(17)
ijmac of the citrah
(18)
al-cismah
(16)
us
goes
implies the
on
to
assurance
obtaining benefit and the denial of injury. This is
simply because the denial of injury necessitates the confirmation
of
benefit
contrary to one another. textual are
the
ordinances
to
the
fact
that
they are
After this he asserts that the
(whether
from the Qur'an
or
Sunnah)
strongest evidences out of those nineteen;
however, it.
due
they might agree with maslahah
Nonetheless,
maslahah
has
evidence)
or
to
it be
or
disagree with
is not necessary for al-Tufi in agreement
with
ijmac but it might
go
nass
that
(textual
against them.
After
making this assertion, al-Tufi does not hesitate to require the pre-eminence of al-masalih al-mursalah nass
and
ijmac if it does not
an
describes
this
pre-eminence
(takhgis)
of
nass
over
them,
over
the
a
and
an
as
agree
over
with them. He
the specification
ijmac and not
as
a
domination
corresponding to the pre-eminence of Sunnah
Qur'an
as
a
means
of explanation and
clarification.
151
a
al-Tufi
Then
problem if
a
nass
goes
and
to explain that there is no an
ijmac
are
in agreement with a
maglahah so that no injury at all is found in them,
which must have been exempted from
except in the hudud, hadith
the
be
to
seems
"la
darar
dirar".
wala
implicit in the
nass
However,
if
some
injury
and ijmac due to
particular evidence,
then it is obligatory to follow that
evidence,
is necessary to restrict nass and
or
else
it
ijmac by the hadith in question. 6.4
THE
CONSIDERATION
Here
that
not
evidence
•
•
IJMAC
objection which might be made
an
whereas
the
consideration of
a
maslahah
simply because its foundation is uncertain and
so,
therefore
it
cannot
al-Tufi
argues
because
it
based
raises
MASLAHAH AND
ijmac, according to most Muslim scholars, is
clear-cut
is
al-Tufi
OF
is
have
pre-eminence
over
ijmac. But
that maslahah is stronger than ijmac based
on
a
sound
hadith while
ijmac is
only on the opinion of the mujtahids. Thus,
maglafrah is the strongest proof of Sharicah simply because
one
of
another
becomes
the a
strongest arguments supported by
strong argument.
Then he goes on
talking about maslahah and ijmac in detail to support his claim
taking into account two aspects:
(i)
the literal
meaning of maslahah which signifies that law should be applied
as
is.
and
(ii)
law
should
it ought to be and not according to what it
be
its descriptive meaning which implies that beneficial.
He
does
152
this
by putting forward
evidences
some
raise
to
the
how
important it is in the
the
same
weakens
6.5
time
IS
Al-TufI
utilized in
is
is
of
for
are
of
of
the
their
a
of
THE
LAWGIVER
as
a
pen
being fully
and this is accepted
worship
benefit
of
...
-
like trade
it follows also that maslahah in
-
a
cause
of
the
leading to the Lawgiver whether in
mankind
Al-Tufi
very
While the acts
customary law.
or
the right of the Lawgiver,
affairs
whole;
OF
writing;
intention
Lawgiver has cared as
ijmac and
of
resulting in benefit
as
the
are
in
Sharicah is
the
acts
worship
INTENTION
used
usage
to
fulfilment of
and at
that if the literal meaning of
resulting in profit
terms
evidences
the
objective, such it
ordinary
relation
of the Lawgiver,
eyes
show
to
thing which is fully utilized according to
a
if
THE
argues
intended
the
maslahah
them.
MASLAHAH
maslahah
he mentions
of
status
and
makes
for
it
the practices
the
clear
organization that
the
much for maslahah in the Sharicah
and he quotes
the following verses:
"0 mankind! There hath come to you an admonition from your Lord and a healing for the (diseases) in your hearts, - and for those who believe, a
Guidance
and
is
that
Mercy. Say (0 Muhammad): "In the bounty of God, and in His Mercy, - in that let them rejoice": that is better than (the wealth) they hoard".8 It
8
clear
Qur'an,
a
the
thing which has
10:57,58
153
come
to human
beings from their Creator their
believe
in
considers
it
ordained
for
the
the as
guidance and
a
benefits
of
exhortation, mercy
a
healing of
for those who
should be something which
people at their fullest.
injunctions and rules in the Sharicah
Thus, are
accomplishment of those benefits.
al-Tufi
Then not
an
(i.e the Qur'an)
the
the
it
and
hearts
as
poses
possible to
hypothetical question:
a
presume
"Why is
that nass and ijmac contain
general consideration of the benefits of mankind so be
to
proof of their knowledge of the Sharlcah?
a
He
responds by saying that this is true with the acts of
worship, but with transactions and customary law
nass
and
ijmac must be in agreement with maslahah. He then recapitulates the differences between the acts of worship transactions
and
former
in
this
connection and
says
that the
belong to the will of God whose techniques
can
only be known from God Himself through either nass or
ijmac; whereas the latter, the consideration of benefit in
them
As
is
al-Tufi
and
clarifies
he,
at
the
asks,
those
those
"Are
this
same
surveys
the
time,
Lawgiver
on
investigates
the actions of God
the God's actions accounted
for
or
not? He
question by bringing forward the arguments
whose
whose
of
concern
the
things. First of all he
answers
of
prime intention of the Lawgiver.
in detail,
maslahah
four
the
response
answer
is
is affirmative
negative. Then he
154
as
well as of
says,
"The
actions
of
God
directed
are
towards
the
beneficence
and
perfection of His creatures and not to His benefit and perfection due to the fact that He is Self-sufficient". Secondly, he discusses the issue concerning the decision of
God
and
asks,
held it
on
the
consideration
"Is
it
matter
a
by the Sunnis
is
or
of
benefits
from Him
of favour
a
and taqbih exercise
mere
al-Tufi
by God is it
and
creatures
on
is
Him
as
on
tahsin
(detestation) which both have to do of
the
mind
a
-
speculative method
-
"The truth is that the consideration of
argues,
benefits
it
by the Muctazilahs? After establishing that
held
(approval) with
creatures
as
question of obligation
a
opinion of the Muctazilahs is based
the
His
for
matter of His favour to His
a
is
not
a
of
matter
compulsion
Him".
over
Thirdly, he talks about the benefits which the Lawgiver has
laid down and
in all
examines,
"Are they absolute benefits
aspects and cases or are they the best ones
in all
aspects and cases or are they the suited and the perfect ones
in
that
the
each
and
last
the
he puts forward the proofs which indicate
consideration
in
Al-Tufl maslahah
qigas
from
(i.e the suited and the
is the best and is likely to be the correct
Fourthly,
manifested
situation?" Al-Tufl establishes
type of benefits
perfect ones) one.
every
the
gives the
of
maslahah
Qur'an,
as
a
by the Lawgiver
Sunnah,
as
ijmac and qiyas.
.
.
proof of the consideration of
Qur'an
(legal retaliation)
verses
concerning the law of
and punishments for theft and
155
adultery for examples, and then he speaking there is
no
benefit
consist
of
another
place"9
in the Qur'an which does not
verse
benefits
or
"Generally
says,
as
have
we
When commenting on these
Qur'an he has mentioned that
explained in verses
the principles of
of the the
philosophy of Islamic jurisprudence have verified that ordinances
textual
the
(nusus)
have been ordained to
accomplish these principles. He went fundamentals
the
stand well
above
dialecticians,
6.6
MASLAHAH •
•
his
In
in
the
IN
Islamic
of all
that
has
been
THE
of
the
to
involved
be
sell
to
a
be
in
by the
consideration of maslahah
al-Tufi presents the hadlth on the
already been purchased by
considers
said
SUNNAH
prohibition of mudabarah (i.e to sell have
sufficient and
are
sophists and the philosophers.
observation
Sunnah,
religion
which
to maintain that
on
maslahah. the
He
else) which he
someone
considers maslahah
also
traditions:
buy goods which
or
that
a
townman
should
kinship is not
disrupted.10.
establishing the fact that there of
g
cases
It
the
Sunnah
where
so
are
many
individual
al-usuliyyah
Reported by al-Bukhari and Muslim
156
that
Then he goes further
_
as
_
of such types well
as
be he means his book, Al-irshadat al-ilahiyyah ila
al-mabahith 10
in
_
may
not
countryman and a woman should not be married
together with her aunt or her mother's sister, one's
to
community interests have been considered; the
is
Sunnah
simply because
explanation of the Qur'an,
an
the
so
explainer must collaborate with the explained.
6.7
his
no
forward
the
benefits
of
maslahah
to
as
much
the
BY
QIYAS
proof of the
by qiyas,
al-Tufi has put
argument that God is concerned with the His
of
as
account
less.
MASLAHAH
OF
into
maslahah no
more
discussion
consideration
this
takes
CONSIDERATION
THE In
in
Sunnah
Qur'an does
the
as
the
that
means
This
life
creatures
and
in
prior to this life,
life
the
to
come.
As
to
as
well as
the
beginning, God has created human beings from nothing in form
by which they could secure benefits in their lives,
while
living in this world. God has made their
easy
for them
the
means
of
the
earth
and
and
eventually God has led those who follow His guidance
and
do
good deeds to the
Him
so
as
to
win His
the
bliss
of
paradise in the hereafter. As long
has
considered
without
all
benefits
basis
of
these
in His
their
community
wealth,
is
that
by creating the heavens and
found
therein
success
and
between
them;
of being subservient to
pleasures and acquire His reward in
benefits
for
commandments
Sharlcah) which is
control
their
sustenance
His
as
creatures,
God
it goes
saying that it is not possible for Him to neglect
their
to
a
social so
as
an
and
legislation (the
overall action of guidance
system and to maintain order
in
to secure safety for their material
blood and prestige without which their
157
lives will
fall
a
that
God
all
of chaos and animosity.
prey has
considered
neglected them in
before
if
and
it
nass
so
that
restricted of
for the third time
as
he did twice
all
that it is important in this
ijmac by this maslahah
and
nass
or
to
It is quite a natural procedure to
...
evidences
of
Sharicah have to be
the
by maslahah due to the fact that the strongest
evidences
these
in
ijmac might disagree with maslahah;
and
clarify them by it al-Tufx
creatures
whatsoever...
case
He says
restrict
to
His
happens then it is maslahah which should be
given priority. case
any
supposes
that
of
it is improbable to think that God has
aspects and
Al-Tufi
benefits
the
follows therefore,
It
(nass and
ijmac) could not face such
a
challenge. Al-Tufi has defined maslahah by explaining how the
Lawgiver has cared for it, and therefore it should be
the
axis
of
all
the
al-Tufl
As
ijmac, he "ijarah"
evidences
observes
argues
that
of
Sharlcah.
consideration of maslahah
the
"salam"
(forward selling) and
(the renting transaction)
Sharlcah though opposed to analogy transactions
time); allowed of
to
take
nevertheless, on
people.
the
basis
then
says
are
permitted by the
(which requires
place hand in hand at the same the two mentioned transactions are of
the
consideration of
the
benefits
The case is also the same with the right of
pre-emption (shufcah)
by
and
many
other Islamic laws. He
that most of the chapters concerning
158
transactions of
masalih
Islamic
in
which
Muslim scholars, method
such
system,
except those who do not scholars
6.8
agreed
Then
one
OF
IJMAC
al-Tufl
AND
Arabic
goes
"jamac"
verb
al-Zahiriyyah school
on
-
BASIS
to discuss
which
ijmac in detail and
"ifcal" class form from means
resolution
When defined terminologically,
agreement. consensus
the
of the evidences of Sharlcah
ITS
that its wording is of
says
of
rely upon such
this fact.
on
ROOT
THE
proved by means
well as those who suspend judgement on the
as
question of ijmac being have
are
accepted by the majority of the
are
the
as
jurisprudence
of
the
an
or
ijmac
mujtahids of the Muslim Ummah
means on
a
particular legal rule. The evidence for it stems out of the
Qur'an,
the
proof of ijmac from the Qur'an has been based
three
Sunnah and qiyas;
verses.
following The
He
criticises
and al-Tufl remarks that
this
on
interpretation in the
manner.
first
verse
is:
"If
anyone contends with the Apostle even after guidance has been plainly conveyed to him, and follows a path other than that becoming to men of faith, We shall leave him in the path he has
chosen,
refuge" Al-Tufi
11
Qur'an,
and land him in Hell,
-
what an evil
.1;L
says
that it is clear
4:115
159
in this
verse
that God
threatens his
the
choice
Actually,
who
one
another
path rather than the believers'
is given against
threat
a
wrangles with the Prophet and makes
an
leaving
an
obligation. The path of the
which
is
the
-
is
agreed
is
an
basis
of
this
men
is
-
or
of faith here
that
which
one
It follows therefore that to follow ijmac
upon.
obligation. Al-Tufi
this argument from six
opposes
that if a threat is given for two things
(i)
aspects:
threat
evil deed
path.
collectively (as is the
case
with this
verse
-
viz.
to
dispute with the Prophet and to depart from the path of the
of
believers) them
it is not necessarily applicable to each
individually;
condition
or
does
a
mean
obligatory...;
(ii)
in
word
the
of them could be a
one
pillar of the other, and therefore the
not
verse
since
that
ijmac is
follow
to
that the definite article
"al-mu'minin"
might
(al)
used
special kind of
mean
people, which could then imply the Sahabah or some of them
since the address
only;
their
time.
"al-ihtimal
argument)
(iii) than not
than
it
is
established
yusqit al-ihtijaj"
so
this
means
made to them and in in
usul
al-fiqh that
(probability demolishes
that the argument is nullified;
that the annexation in the expression that
of
the
absolute, -
follows i.e
As
was
ghair". a
believers
-
(ghair sabil al-mu'minin)
due to the ambiguity of
The
different
verse
(a path other
is
the word "other
could be interpreted as
"he
path from the path of the believers"
opposed to their belief
(which
160
means
non-belief); and
this
meaning is witnessed by the logical
verse
itself
is
proof in the
no
ijmac;
and
of
verse
the
expression. Thus,
So,
is
free
from
that
is
the
threat
as
well
and
both
in
is
question corresponds to the
(v)
verse
joined to its conditional nature... prior to it three things:
verse
of
charity;
(2)
exhortation of
act
to
(1)
that the before it and
We find in the
exhortation to
make
conciliation
between
people.
ones
even
it
if
we
is
accept that the verse
which
a
the
a
proof for the no
impediment
a
stronger proof
Sharlcah than it.
The as
(vi)
prevents the pre-eminence of maslahah over
ijmac due to the fact that maslahah is of
So the
long as there is this possibility of
obligation of following ijmac, yet there is in
deed
mentioned in the
interpretation the proof for ijmac is rejected..; that
a
following the path of the believers means
not
As
as
exhortation to do justice; and (3)
doing things contrary to these verse.
path
the verse is not a proof for the obligation
following the path of the believers,
verse
there
of the obligation to follow
non-believers
the
which
lawfulness
promise.
after
that there is a mid-path between the path of
(iv)
believers
the of
before and
of the
sequence
second
which
verse
has
been
presented by al-Tufl
proof of ijmac is: "Thus have we balanced that
made ye
of
you an Ummah justly might be witnesses over the
161
nations...".12 Where
"justly balanced "
whose
dealings of
consensus
the people of justice
righteous. As long
are
the
means
i jmac is
as
mujtahids of this Ummah who have got
this
noble
quality,
just
means
of legislation and must be followed...
Al-TufI evidence is
a
also
it follows therefore that ijmac is
argued that this
ijmac. The
for
narration
and
and
falsehood
deduction of
laws
totality ijmac,
basis
those
who
and
applies to the act of
through the exercise of
diligence which incorporates in its
objection that the reality of
an
formation
on
formation
Ummah,
Qur'an,
the
the
the
but
on
a
validity of ijmac have accepted
basis
of
mere
indications
like qiyas and the narration of
on
firm basis;
consensus
obligates its application. However, most
assert
(riwayat ahad).
12
which
this qualification does not hold water.
which
mujarradah)
the
unfounded
is that justice
justice of the Ummah necessitates its
firm
its
wrong
raises
furthermore
of
he gives
an
giving evidence. Whereas in matters
concerning right and
the
reason
is
verse
a
necessity for righteousness in matters of
truthfulness
He
a
a
(imarat
single man
Still many amongst them have accepted its basis
just
on
of
mere
a
research
i.e
without
the pretext of the immunity of
and that whatever
its
2:143
162
consensus
might be,
a
whether is
not
come
on
firm basis
a
agreed
an
even
Al-TufI the
on
on
does
not
can
not
other
hand
be
the question still
it is admitted
purport!
remains concerning If by decisiveness
ijmac
or
it happened to exist
ever
against maslahah.
go
On the
it won't be anything other of
the
(iii)
Sharicah, viz.
than one of the
(i) al-nass,
the consideration of maslahah.
regard to ijmac,
it is not possible to accept it
basis
ijmac lest it becomes
is
another
existence
divided
into
well-established its
-
four
which
is
void.
categories:
of
However,
its
if
As
(i)
(mutawatir sarlh)
wording and verification,
terms
it
by decisiveness is meant legal
evidences
own
a
this is hardly non-existent in the proofs
expected to
if
absoluteness,
its
make
rationality (which does not contain
would
of
it
Thus,
together except on a
come
Sharicah; and if
the
(ii)
to argue that even if
decisiveness
that
contradiction),
three
followed.
basis...
weak
a
goes
Ummah
does
is meant
of
be
opinion that the Ummah does not
upon
decisive measure, what
must
together except on a firm basis i.e it
consensus
that
not
or
a
or
With the
on
proof proved by
it
regards al-nass, clear cut and
which is decisive in
yet it might be dubious
in
generalization and unrestricted nature. the
"mutawatir
sarlh"
specific possibility in that
case
does
but
dubious
have
a
he prevents it from
opposing the consideration of maslahah; well-established
not
(ii)
(mutawatir muhtamil);
163
(iii)
clear
and
but
cut
dubious
that
decisive..
the
basis
ijmac and
have
we
three
it could be
As
categories of
of
nass
decisiveness
the
isolated
seen
clearly
not
are
third
i
jmac
verse
ijmac
one
upon
which
-
then there only remains
-
consideration of maslahah and
decisiveness of
of
is rejected and excluded
nass
agreed upon previously
The
(iv)
and
.
the
another
(ahad sarlh);
(ahad muhtamil).
last
the
If
isolated
the
dependence of the
it.
on
which
al-Tufi
gives
as
a
proof for
ijmac is: "Ye
the
best
of
people evolved for mankind, enjoining what is right, forbidding what is wrong and believing in God The
are
manner
in which
this
verse
is
considered
to
be
a
proof for ijmac is that God's eulogy of the believers
signifies His justification for them; and therefore their consensus
should
Nevertheless,
ijmac in the
be
a
al-Tufi same
proof
(of the Sharicah).
opposes
manner
as
he
this
verse
has done
as
to
the proof for the
previous
one.
He
quoting
tries a
to
verify the proof of ijmac by Sunnah
saying of the Prophet which states:
"My followers will not
13
Qur'an,
agree
3:110
164
upon
a
perversion
or
wrong".14
something Al-Tufi
establishes
versions it
in which
attain
to
established
in
this
various
wordings and
saying has been reported have made
status
its
the
of
al-macnawi"
"al-tawatur
(the
meaning) and therefore it becomes
a
proof which necessitates the following of ijmac.
decisive He
the
that
that it is as strong as a decisive nass in its
says
wording and its basis and therefore deserves practice. spite of this fact, al-Tufi that
attainment
the
al-macnawl"
"al-tawatur has
simile and
reached
not
"
its
status
proof
the
like of
this
of
in
is
this proof and
opposes hadith
to
the
conceded
not
status
In
says
of
simply because it
strength the position of an Arabic
generosity of Hatim and the bravery of CA1I in
celebrity.
"al-tawatur
So anything less than the
al-macnawl"
is
not
so
a
strong
if it acquires the quality of majority
even
transmition
(al-ifadah)
people.
among
Suppose somebody might argue,
says
al-Tufi,
that the
proof of the firmness of this hadlth is that the Muslim Ummah
has
argues
ways:
this the
14
accepted its validity.
Nevertheless,
al-Tufi
that this assertion could be refuted in three
(i)
that those who rejected ijmac have not accepted
hadith because claim
that
the
of
their
opposition to ijmac;
Muslim Ummah
Reported by Ibn Majah
165
has
thus
unanimously accepted
it
is
of
the
valid;
not
Ummah
in
(ii)
that the implication of unanimity
accepting this hadith is
mere
proving
ijmac by another ijmac which is invalid; and (iii) that the
acceptance of the hadith by the Ummah on the
probability of
agreement is,
our
in actual fact,
a
supposition and not decisiveness. A supposition cannot formulate of
the
being
of
ijmac which is alleged to be
so
it is deprived of its strength...
hadith
goes
in
on
to say:
"Even if
we
accepted that
question has reached the status of being
firmly established (tawatur), nonetheless, that
mean
one
strongest proofs of the Sharlcah simply because by
Al-Tufi the
basis
the
we
it
hold
to
this does not
require the obligation of
following ijmac, because of the possibilty that what meant
by the word "perversion" might refer especially to
non-belief.
The
lack
of
the
of
consensus
the
Muslim Ummah
perversion in this special meaning does not exclude
on
its
agreement on another perversion.
not
a
suitable
non-belief. for
In
the
ijmac to base "Follow
Thus,
this hadith is
proof for the obligation of following
ijmac other than interpreting faith same
on
way,
as
opposed to
it is not suitable
a
proof
another hadith which states:
the
majority (of my Ummah), verily he who keeps aloof (from it) will be thrown in hell fire, and the hand of God is over the entire
body",15 15
was
Reported by Ahmad ibn Hanbal and Ibn Majah
166
simply because this hadith and
the
Imams
6.9
OBJECTIONS
to
TO
against them.
go
THE
PROOFS
IJMAC
al-Tufi puts
Qur'an and Sunnah,
the
OF
completing his argument concerning ijmac based
After on
not
to obey the rulers and
means
forward two
general objections to the proofs which he has mentioned:
(i)
which
of
another
a
mentioned
Thus,
verse
(ii)
divided
(i.e proving ijmac by
into
"believers" in the above
the word
include
all
the
"my followers" in the hadith Nevertheless,
and need be
ijmac by these
to prove
circular argument
ijmac);
occur
of the Muslim scholars due to
consensus
conclusiveness.
proofs is
apparently hearsay upon
are
problems in interpretation
some
proved by the lack
ijmac
that the proofs of
believers;
encompases
and the word
the whole Ummah.
according to another
the Ummah,
hadith16 is
seventy three sects and does not come
together except on the belief of God and His Messenger and
other
few
fundamentals concerned then
obvious
claimed, for
its
are
not
that
and the
fundamentals.
therefore all
the
this verse
is
These
basic
which
ijmac is
the
ones
rules
of
not
place where ijmac is
a
the
and the hadith
Sharicah.
are
not
It
is
applicable
proof...
Then
16
and
basic
al-Tufi
winds
up
the proofs for ijmac based on
Reported by al-Darmi
167
for
the
it
that
is
be
taken
found
that
error
in
carried
agree
proof for ijmac simply because it is
a
as
people of different faiths do agree on
great numbers and after hard work with
out
diligence and high intellectual
connection with
visualized by
he
manifests
to
the
the
is
immunity consensus
in
of
one
the
themselves
in
Muslims.
aspects in which
proofs with regard manner:
(i)
of the proofs of the
immunity from making mistakes and
Sharicah should attest their case.
Muslim Ummah
the
error
for the assembly (of the
which is not the
-
the
of
ijmac in the following
of
necessary
least
prey
four
contradiction of
to attain
at
or
as
discusses
ijmac is considered
mujtahids)
errors
in God
al-Tufl
verification
Sharlcah it
sins;
faith
this
After
an
in research
a
if
an
this acceptance is not
capacities, because they become
that
on
magnitude after striving diligently and
researching the law. Nevertheless, to
generally impossible
pious and intellectual people to
in
error
establishes
and
reason
is
or
invalid
The protection of the
mujtahids from making simply because the
possibility of making mistakes is not ruled out. As regards the witness of the Sharlcah to their exemption from
making
some
individuals,
(ii)
that the term "my Ummah"
errors,
it has only been reported to
which
are
"My Ummah will not agree on mean
to
include
all
the
us
by
insufficient to establish it;
a
sects
168
in the hadlth which states: perversion of
the
..." does not
believers
due
to
the
fact of
that
the
some
of
these
have
sects
been
deemed
to
be
out
pale of Islam because of their innovations in the
belief. circle
They are not therefore to be included in the of
the
assembly;
and still
some
sects do not hold
of the proofs of the Sharicah and therefore
ijmac
as
their
assembly is not to be taken into consideration even
if
one
they do so. The term "my Ummah"
suitable
to
mean
al-najiyah) because
sect
is
which
saved
(al-firqah
only amongst the seventy three sects simply
this
proportion
the
in the hadlth is not
so
will as
lead
to
make
to be read:
an
estimation
in
"Eighth of the nine parts of
Ummah will not agree on an error"; which is too weak a
my
style of speech to be accredited to the Messenger of God. follows
It
therefore,
the meaning of
that
the
hadlth
the
proof does not confirm ijmac.
should
be
especially "non-belief"; and thus
prefered the clearly stated
nass
ijmac in the question of debarring one
third
"perversion" in
(1/3) of inheritance
so
(iii)
that Ibn cAbbas
(zahir al-nass) a
over
mother from taking
that she took one sixth
(1/6) with the existence of two brothers. He cited the verse:
"If the deceased sisters ) . . . " ;17
and he
caliph)
17
Qur'an,
debated with
left
brothers
(or
cUthman ibn cAffan
(the third
saying that God has judged in the Qur'an that if
4:11
169
deceased
the take
left
sixth of
one
brothers
two
brothers the
in
are
third.18 cUthman
sisters)
inheritance,
the
the
(iv)
that
Safrabah
clear
since the
therefore,
one
ibn cAffan
sixth
only and not one
agreed with the opinion of Ibn
cAbbas contrary to his own opinion and that
the mother has to
plural form in Arabic language,
should deserve
the mother
(or
meanings of
nusus
are
ijmac. This
means
stronger than
ijmac;
Ibn Mascud went against the ijmac of the the question of the permision to use sand for
on
purification "tayammum" while in sickness and said: allow
to
we
sick people
the
"Were
to use tayammum instead of
making ablution,
then a person would resort to it because
of
coldness
there
of
Ibn Mascud
no
criticism of
when
Mascud
was
of
Sahabah
the
was
water".
was
Although this opinion
widespread at the time of the Sahabah,
it
has
received
been
right in going against the because
of
the
from
them.
nass19
Ibn
and the ijmac
general maslahah,
implies that the pre-eminence of maslahah
If
upon
this nass
and
ijmac is possible and permissible. On the contrary, if Ibn Mascud the
Sahabah
both
18
See
The
M. ,
is
wrong
in his opinion,
erroneous
situations
the
al-Tufi 19
was
the
for
not
then the assembly of
criticising him;
and in
proof of ijmac is repudiated.
Zayd, Al-maslahah fi al-tashric al-Islami 126
wa
Nairn al-Din
p.
in
question is the hadith which states: "The earth is for me and its sand is a purification, wherever time for prayer comes I purify myself with the sand and pray on it". Reported by Muslim. made
a
nass
mosque
170
Al-Tufi
goes
difference
to maintain that first of all,
on
the
opinion of Ibn Mascud is contrary to the
of
ijmac of the Sahabah; and secondly, although Ibn Mascud
al-AshcarI,
criticized by Abu Musa
was
individual
criticism and only
mistake
not
in
consensus
of
Sahabah
as
opinion of Ibn Mascud,
the
Therefore,
against the
nass
of
the
Before
establishes
its it
the
fact
fact
that
he
means
consideration hadith
"la
opposition to the ijmac and
his
that
that
of
darar
in
he
maslahah »
wala
himself
the
favour
basis
of
the
consideration
of
a
complete rejection of talks
it
of
(acts of worship)
this
«
as
in
and the like.
regard is to clarify that the which
dirar"
is
is a
Sharxcah than ijmac simply because than
Ibn Mascud which is
paramount and intact.
cibadat
connection with All
merely a
finishing his analysis of ijmac, al-Tufl
the
to
was
that formulated the basis of the ijmac
proofs should not be taken due
Since the
it follows that the
the opinion of
remains
Sahabah
an
community did not reject
a
disapproval of Abu Musa al-AshcarI contention.
was
indicated the Sahabah's
repudiating Ibn Mascud.
the
it
deduced
from
the
•
stronger proof in the
its basis is stronger
ijmac. He further tries to
prove
in
opinion which he has put forward,
that the
of
nass
maslahah
ijmac in three respects:
takes
(i)
precedence
over
and
that those who rejected
ijmac have accepted the consideration of maslahah. This means
that
maslahah
is
a
matter
171
agreed
upon
by all
ijmac is
whereas
maintain
something which is agreed
about
that
do
nusus
subject of disagreement; and to
a
which
is
there
contradict
and
upon
disagreement;
is better than (ii)
that the
disagree with each other thus
causing difference in judgments and decisions which would appear
to be blameworthy in the Sharicah;
consideration itself
where
is
of maslahah is
none
an
different,
item of
better
6.10
THE
and
agreement
in
and this quality of
agreement is desired in the Sharicah. is
whereas the
Thus to follow it
safer.
SOURCE
OF
DISPUTE
AMONG
THE
FOLLOWERS
OF THE
MADHAHIB
After
putting forward
accordance
and
some
nusus
which demand
agreement in judgments and decision
making, al-Tufi digresses and points out what happened to followers
the
of
of
celebrated
the
jurisprudence who,
with
each
other
due
Imams
of
the
four
schools
later, began to dispute and argue
to
competition between them,
preferring the apparent meanings of the
nusus
rather than
taking maslahah into consideration. Had they agreed with each
other
nugus,
in
their
then there would have been neither dispute nor
difference
of
opinion...
maintaining that scholars'
narrations the
methodology of dealing with the
nusus
one
Al-Tufi
goes
further
of the main causes of the Muslim
disagreement is the contradiction of the of of
hadith and
Qur'an.
the
divergent interpretations of
He mentions
172
the assertion of
some
people who said that the sole in
hadith
cUmar
is
from
Sahabah
of the contradictions
cause
ibn al-Khattab
who
prevented the other
compiling the Sunnah when they asked
permision from him and he replied: "I
write
don't
the
else".20
cUmar's opinion is contrary to
Nevertheless, of
the
Qur'an along with something
some
sayings
Prophet such as:
"Write
for
Abu
Shah
sermon";21
farewell
the
and "Preserve
Al-Tufi allowed the
down".22
quotes from those people who say: the
Sahabah
to
write
down what
"Had cUmar
they heard from
then the Sunnah would be fully preserved and
Prophet,
every
knowledge by writing
hadith which reached the Imams would have the
authority of the Companion who transmited it, and those books
would
al-Bukhari, instances between
in which
be
to
us
as
we
Muslim and others,
in
the
nusus
he
known
and
finds
Sunnah
clear
(iii)
in which
masalih.
know
the
books
that there are some
contradiction
Al-Tufi
of
occurs
gives eight examples
opposition. Then he concludes by
saying that the consideration of maslahah must precede all
211 2-1 9 9 "
the
See
rest
Mustafa
Reported by
proofs of the Sharicah in order to improve
Zayd,
op.
cit.,
p.128
al-Bukharl and Ahmad ibn Hanbal —
T
Reported by al-Darmi
in Muqaddimah,
173
p.
43
the
people's welfare,
all
the
organise their affairs and
goodness which God has bestowed
binding all the rules together in
upon
procure
them by
systematic order and
a
getting rid of all contradictions. Then he states that the
pre-eminence of al-masalih al-mursalah evidences
other reason
a
Sharicah is
after
reaches
device take
in
is
of
discussing these three aspects is is
stronger legislative
a
over
all the evidences of the Sharicah if
contradiction between them.
any
AL-TUFI'S
CONCLUSIONS
•
this
After
use
Sharicah than ijmac and should be made to
the
precedence
there
question of the
a
special preference. The inference that
al-masalih al-mursalah
that
6.11
rather
or
al-Tufi
of
all the
over
ON
assertion,
MASLAHAH •
•
al-Tufi gives four answers to
suggested objections to his exposition of the pre-eminence of the consideration of maslahah the
proofs of Sharicah.
conclusion
in
al-mursalah a
mere
rather
favour
is
not
mischievous it
is
of
to
He maintains that: the
the
(i.e ijmac)
al-fiqh). the
(ii)
benefits
analogy resembling satanic thinking,
which is
of
an
the Lawgiver
of
His
the
precedence of
of
as
over
174
a
stronger
a
strong
(in usul
is well versed in all
(God)
creatures
maslahah
over
accepted principle
His
depict this reality. Nonetheless, consideration
(i) his
proofs of Sharicah by
proof (i.e the consideration of maslahah) one
all
precedence of al-masalih
diminish
assertion
an
over
the
bounties
to
them
the pre-eminence of the
proofs of the Sharlcah
is
never
is
one
denial
a
simply because maslahah
long as God has given us the talent of
as
recognizing reasonable
of
truth
amongst these proofs and the most preferable.
Moreover,
which
this
of
benefits normally,
our
discard
to
might be
maslahah;
it
and
it is therefore not
depend
on
ambiguous thing
an
doubtiful method towards the attainment
a
(iii) he refutes the claim of those who
allege that the difference of opinion of the Imams on the
question of legal rules and judgments is "
ikhtilaf
sound a
nass
sound
must
al-Aimmah
take
to
more
mercy
that there is no
says
and
if there
even
support this opinion,
preference
is
former
He
support this claim;
to
nass
rahmah".
a
were
the agreed maslahah
the disagreed one because the
over
probable than the latter. Moreover,
the
disagreed maslahah makes possible two harmful effects: (a) of
people would be given to use the dispensations
some a
them
certain madhhab to
deem
some
therefore
involve
that
of
some
the
(school of
unlawful
things
themselves
in
non-believers
which could lead
law)
lawful
as
and
ones
great wickedness; who
in
are
need
(b)
of
embracing Islam might be prevented by the differences within to
the
involve
from
them.
Ummah, error
It
is
because and
those differences
naturally
without
doubt
a
in
following the
principle of the consideration of maslahah the towards causes
making beneficial judgments of
differences
are
are
demolished;
175
thought
would be repulsed
man
that
are
ways
unified and the
(iv)
he further
establishes
his
that
analysis is not
erroneous
but is not
necessarily the only method due to the fact that the foundation
of
this
analysis is the
Notwithstanding, there is
which
reason
an
urgent necessity to follow
simply because probability in question of customary
law
(and transactions) The
matters.
Ummah a
of
probability only and not decisiveness.
assumes
it
use
before
is equal to decisiveness in other
argument that by doing so implies that the this
generation must have been
is just
wrong
misunderstanding which could be arrived at by anybody
who
to
comes
With
before.
a
methodology which has never existed
new
regard to the vast majority
al-aczam) which the hadlth commands is
clear
a
poof and
consideration of the
us
great argument
a
maslahah
in
the
to
(al-sawad follow,
in favour of the
sense
that
had
case
been
so,
then it would be necessary for
scholars
(who
are
few)
went
against them Al-Tufi
al-masalih
on
different
his
that
pre-eminence of maglahah
Malik
the
and
all the proofs of the
over
unique from the theory of Imam
al-mursalah
in
the
that
sense
He goes on to say:
consideration
actual
the acts
nusus
of
maslahah
is
in
(of the Qur'an and Sunnah)
fact
a
customary law and general social
176
his
"The
support of
and ijmac in the
worship whereas its consideration in
transactions,
they
theory of the
theory is more comprehensive... of
not
to follow the masses whenever
maintains
is
it
the masses are the majority.
as
Sharicah
there
obligations, acts
of
it is
worship
verified
either
a
says
basic condition". al-Tufi,
In connection with
the rules and judgments are
by single clear cut proofs
variety of proofs which
congruent
are
or
by
in meaning,
a or
by
contradicting proofs which could be grouped together without
affecting the
But
nusus.
if the contradicting
proofs could not be grouped together, precedence
the rest of the proofs,
over
or
else nass
precedence in the absence of ijmac.
takes
When
the
proof is singled out from the Qur'an for a
particular judgment, whether it be or
then ijmac takes
an
apparent meaning of a verse,
a
clear cut ordinance
it has to be exercised
by giving the precedence to the most probable of its suitable
meanings.
meaning of the those
verse
possibilities
worship...
if
as
are
multifarious,
and
the
of
may
of equal strength,
be exercised in the acts of
two or numerous,
are
the
like,
verses
by
or
if at all there verses
are
together;
deemed
implications
are
grouped together by the
are
is
means a
but in cases where their then one or some of
abrogated and the
by the agreement of the Sunnah.
177
of restriction
possibility of
grouping together becomes difficult, verses
then they will be
But if their
congruent.
particularisation
grouping the
the
then any of
they were one verse only if all their
implications
method
are
If the proofs from the Qur'an for the same
particular thing taken
If the possibilities of the apparent
case
is verified
When
the
becomes
Sunnah
the
only evidence in a
judgment and the proof is verified by it
then
is
further
based
on
to carry out that hadith without any
necessary
research.
if
But
than
more
sound hadith,
one
one
the
proof from the Sunnah is
hadith and all
ahadith
the
•
•
are
equal in correctness and their implications are unified, then
all
ahadith will
the
hadith only. nonetheless will
be
applied
If their implications
if they
as
one
and if grouping is
another;
of them will be deemed abrogated.
some
need
no
to
beyond it for another proof;
go
meaning is not specific, verified with more
than
some
of
the
that
the
if
it
is
ahadith
necessary far
are
sound
not
ones
is are
a
provide evidence in
to be applied;
as
a
particular
then
one
the
should
they disagree. (i.e Sunnah)
other. be
in soundness,
case,
things should take place, either they or
natural
possible... When the Qur'an and Sunnah
both
of
it
or
to give precedence to the most correct
as
other
but if the
Sharicah. If
compete with each other
ones
two
then there
conjunction of the Qur'an and ijmac
amongst the proofs of the
ahadith
the
If the
then proof should be sought and
practice that only the correct but
one
then they
meaning is specific just in the Sunnah itself, is
were
divergent
are
they could be grouped together,
merged with
impossible
be
But
found
to
if
is
If they a
agree
one
agree
of the
with each
with each other,
clarification and
an
emphasis
they disagree with each other, a way
bind
them
together as much as
178
possible; and if grouping them together is impossible, then
is
should
one
suitable;
then
the
be
but
in
deemed
abrogated by the other if that
case
abrogation it is not applicable,
Qur'an should take precedence over
the Sunnah
simply because it is the origin and logic demands that the
origin should not be discarded for its This
the
is of
acts
how
and
consideration all
is
word
no
killer, stone
the of
of
an
maslahah
then
be
to
added
all
the
some or
is the
if any other proof agrees with it, as
is
the
case
with
the
where nass, -
eg,
ijmac and
or
to flog or
of
divergence between
Sunnah when there
is the possibility
In
the
five
to kill the
amputate the hand of a thief,
to
Qur'an and
judgments
norm
people in the first place
agreed together
adulterer...
merging
of
(al-ahkam al-khamsah)
have or
in connection with
rules
practices the established
else,
fundamentals maslahah
defines
worship. Whereas in connection with
transactions
before
al-Tufl
derivative.23
case
of the proofs into others in
some
conditions while excluding the others
taking into account the consideration of maslahah, they could be grouped together.
or
of
then
If grouping together is
not
possible, maslahah takes precedence
the
proofs due to the fact that the hadith "la darar wala
dirar"
23
See
states
op.
the rest of
categorically the negation of injury which
Mustafa
Khallaf,
over
Zayd, op. cit., appendix, cit., pp. 138-141
179
pp.
43-46; cAbd al-Wahhab
prompts the consideration of maslahah, take
and thus it must
precedence due to the fact that maslahah is the main
objective
far
as
people
as
are
concerned in the
legislation of laws, whereas the rest of the proofs in
reality
should
take
pre-eminence
Al-TufI
here
between benefits therefore
or
or
contains
(masalih) and injuries
He
a
a
be
as
acquired
begins by saying that
or
much as possible.
every
proposed
only, or mafsadah alone,
and mafsadah
single maslahah
possible to acquire
(mafasid); and he
to avoid that
canon
both maslahah
constitutes
the ends
the means...
over
constitutes maslahah
law
Logically,
perceives the possibility of opposition
lays down
contradiction... rule
to this objective.
a means
are
together.
several, But
If it
then it has to
if it is not
than one and the masalih were
more
contending against each other in degrees of importance, then
the most
important
there
is
no
means
of
preference,
about
which,
a
forms,
more
possible.
which
is
difficult has
to
be
one
the
then
are
to be acquired;
only will be obtained by
lots will take place...
If
ever
only quality within a thing in one or it must be expelled and checked as much
But when it
is not possible,
possible has to be expelled. to
and if
but if there happens to be doubt
then drawing
is
mafsadah
as
competition
ones
then only that
If it becomes
stop more than one mafsadah then an effort
made
to
expel the most injurious mafasid if
they are at different levels of harm;
180
but if they
are
then only one amongst them will be debarred by
equal,
selection
of
means
and
the maslahah
mafsadah
much
as
then
so
mafsadah
the
it is incumbent and
thing,
do
by drawing lots if doubt
or
of
importance.
But
anyone
selection
doubt
contradict
mafsadah
the
and
weightier obtained
be
one
one
As
a
the
but if it is difficult to one
which is
if they
are
apparently equal in
could take precedence in occurs,
each
then drawing
lots will
other,
or
a
maslahah counteracts
outweighs the other respectively,
then
(al-arjah) will be preferred either to
expelled.
or
importance, only selection
a
If two masalih oppose each other or two
place...
mafasid a
if
but
If
expel if they are at different
or
importance, then
take
to deter
precedence should be given to the
important to obtain levels
altogether do exist in
necessary
possible,
as
occurs.
one
If both
are
of them will be considered in the
by means of preference
conclusion
equal in
to
his
or
drawing
lots...".24
analysis of the theory of the
pre-eminence of the consideration of maslahah in Islamic al-Tufi
law,
emphasizes the point that this theory is
applicable only to transactional operations
(mucamalat)
and
customary law and not to the acts of worship due to
the
fact
in
24
the
See
that
the
realm of
Mustafa
al-Wahhab
rules
and
laws
concerning mucamalat
are
political affairs whose enactment depends
Zayd, op. cit., appendix, op. cit., pp. 141-142
Khallaf,
181
pp.
46-47;
and
cAbd
on
benefits
the
in mucamalat
of
the
it is important that
people. Thus,
consideration of maslahah
the
should
take
precedence and formulate its basis. Whereas the acts of
worship
are
one
know His
can
the rights of the Lawgiver
time and place
(God)
alone and no
rights in terms of quality, quantity,
except through His decree and will.
It is
obligatory therefore to perform acts of worship in the they have been laid down for
way
Himself
us
by His Prophet and not
or
by the Lawgiver
as
it has been
stipulated by the philosophers who worshipped through their
reason
denying the code of laws from God and
made Him angry,
and consequently they lead astray and Then al-Tufi winds up his
perverted other people...
analysis by emphasizing of
the
devices
special
of
the
Sharlcah,
feature
to
the
in the light of customs and proof of the Sharlcah
If
we
find
neglected it
or
has not considered it,
common
know
its strongest proof and
people who have been given
responsibility (mukallafIn)
has
again that maslahah is one
once
He ends up by saying that maslahah is a
one.
distinct
sense.
that
we
are
that
any
consideration
as
is
it
clear
own
the
Sharicah have not encompassed all
judgments of the everchanging events we
are
judgments by
then we should
prompted to obtain that maslahah through
our
that
so
that
the
nusus
the rules and as
much as we know
required to complete those rules and means
of qiyas.
182
of
THE
Al-Tufi's consideration
CRITIQUE OF AL-TUFI'S THEORY
theory of the pre-eminence of the of
is
maslahah
based
on
three
propositions:
that maslahah is the pivot of the intention of the
(i)
Lawgiver,
thus it is the special and the strongest of all
the
proofs of the Sharicah;
for
maslahah
coincide
to
(ii)
with
a
that it is not necessary decisive
ijmac of the Muslim Ummah, but it
ijmac,
and them
on
in which basis
the
case
of
the
can
go
nass
or
the
against the nass
it should take precedence over first
assumption;
(iii)
that the
sphere of action within which his theory could operate is in
(mucamalat) and customary law which
transactions
concerned
with
the
people's polity and social
obligations. As regards the acts of worship, should be
are
their rules
directly received from God due to the fact that
they belong to His will.
Al-Tufi
presented proofs for each of these
propositions at the beginning of his explanation of the hadlth
"la
hadith
itself
darar
is
dirar",
wala the
first
due
to
the
fact
that
the
proof for the first
proposition and the basis of his analysis.
Then he
produces detailed proofs showing that the Lawgiver has considered maslahah
in
this
on
Sunnah,
this
again and again to emphasize his position.
to
the
establish
Qur'an,
the
every
thing,
basing his proof for
ijmac and qiyas♦
He does
In trying
precedence of maslahah al-Tufi weakened
183
ijmac and made it celebrated He
these
also
the
the
schools
of
cause
the
to
Imams
nusus
the of
the
with
idea
the
disagreement.
that
maslahah
the
Sunnah.
He
darar
issue
on
ijmac
which there is
is the subject of
to be just
in
our
discussion
on
Then
clarifies and
the
Sharicah's
the
fact
that
inevitable.
this
meaning by discussing the
exclusions
infliction
The
same
a
is
cause
therein and of
of
injury by God's decree is
the
case
the
measure.
exclusion of
The hudud
injuries to those inflicted,
precise It
with
and other remedies for various
justice legalized by
the masalih.
says:"As regards
causing injury it is due to
special legal
(revealed punishments)
some
its
except by a specialised measure".
limitation
causing harm by
do
establishes
"No injury should be caused (whether
illegally)
limitations
in which he
dirar"
wala
or
mentions
stronger than
begins with the explanation of the hadith
legally
of
is
it is imperative to observe the
theory,
meaning to be:
crimes
that he could come
so
of the logical progression of his analysis.
Al-TufI
he
an
the latter
In order
al-Tufl's
sequence
acts
Qur'an and
eventually rejected them
agreement whereas
"la
jurisprudence.
divergence of opinion of
simply because the former is
the
Islamic
of
presented the proofs of ijmac and after discussing
them he out
of
Imams
referred
point of divergence amongst the four
a
is
nusus
clear
a
as
they are
special proof. Then he
which he maintains confirm
here
184
that
it
means
that
the
proofs of the Sharlcah do not conflict with maslahah in whatsoever simply because all types of injuries
any
case
are
initially excluded by the Sharlcah. As regards the
hudud
and
other
punishments for the different crimes,
although they seem to appear as injuries in themselves, they are in actual fact applied to attain important benefits
such
lives
people will be under great threat.
the
of
hadith
security and
as
"la
darar
In
dirar"
wala
pre-eminence of maslahah
peace
over
is
without which the
not
a
In this case
proof of the
nass.
spite of this, al-Tufi bases his opinion
the
upon
implication that this hadith makes maslahah override all the
evidences
of
by saying that if
injury,
we
hadith.
Thus
Sharicah.
the
He
tries
to
support this
evidence of the Sharicah contained
some
should get rid of that injury by applying this that
evidence
of
the
Sharicah would be
particularised by the application of this hadith and with
reconciled
suspension of would the of
this
be
evidences
one
Otherwise,
it would result
of these evidences
hadith.
There
is
no
in this
-
doubt
that
to
in
a
case
it
apply all
collectively is better than suspending
some
them.
Most
evidence in
it.
Muslim of
the
scholars
would
argue
Sharicah contained
that even if some
injury and therefore
would
require this hadith especially to
get rid of that injury,
it does1nt necessarily oblige the
such
a
case
we
185
precedence of maslahah an
application of
one
takhsis
means
of
would
argue
over
nass
nass
coming before another
(particularization). Moreover,
like
this
hadlth
particular evidence, restricts vice
not
they
in which
stands
general
a
together with a
it is the particular
which
one
general one yuhmal al-khas& cala al-camm anc}
the
versa.
Al-TufI
that
sees
consideration
of
particularizing
the
maslahah
nass
pre-eminence of the the
over
by maslahah
nass
or
a
as
a
type of
clerification of
by maslahah and claims that this method,
nass
by
nass
that in the method of general
particularization (takhsis camm) evidence
but it would rather be
as
a
principle, has its origin in usul al-fiqh whereby sometimes means
of
the
come
to precede
after
evidences
takes
of
precedence over the Qur'an by
(clerification) while in actual fact the
bayan
Qur'an has to
Sunnah
it. the
Most
the Sunnah in legislation and not Muslim
and
is
agree -
but they would
-
that some this argue
is
an
that
agreed matter that the implication of nass
an
ijmac could contain injury. As regards the hudud and
other are
not
do
Sharicah do restrict others
agreed factor in usul al-fiqh it
scholars
punishments,
exercised
in
they have already said above that they
order
to
whereby the injuries which
punishments
are
obtain are
important benefits
caused by these
far less significant
expected benefits in them. The
186
case
as
compared to the
is not also
understood
with
dictum
the
consideration of
the
hadith
"la
by
nass
darar
he
cast
of
a
wala
al-Tufi
dirar"
himself
doubts
some
which
maslahah
has
to
of particularization
means
that
seems
in which al-Tufi
maslahah,
on
the
has
is
felt
clarification!
this
on
forward
his
in
as
about
case.
defines maslahah
according to the common
between
usage,
the
two
is
no
definitions...
As
he notes, maslahah is
"a
cause
objective regards the
which brings
such as trade which brings
goodness and advantage,
profit; whereas in accordance with the technical Sharicah, maslahah is "a
the
t
intention of or
1
the
customs...";2
could
basis.1
well as in accordance with the technical usage
difference common
strong
al-Tufi tries to refute this truth
Sharicah and remarks that there
the
a
as
detailed account of maslahah and ijmac to
a
Al-Tufi usage
It
ambiguity when
weak basis,
a
compared to the ijmac which is based on
by giving
precedence above
strength of the consideration
which is based
Inspite of this fact,
that
implied from the
take or
asserts
»
cause
usage
in
which leads to the
Lawgiver whether being acts of worship and the literal meaning of
give light to both the definitions.
its wording Maslahah,
to
Zayd, Al-maslahah fi al-tashric al-Islami wa Nairn appendix, p. 15; and cAbd al-Wahhab Khallaf, Masadir al-tashric fi ma la nass fih, p. Ill See
Mustafa
al-Din al-Tufi,
2
See
Mustafa
Khallaf,
op.
Zayd, op. cit., cit., p. 112
appendix,
187
p.
19;
and
cAbd al-Wahhab
al-Tufl, it
is
is:
expected to be, its
when
with".
is
with
it
Lawgiver
or
main
is
obtained
Lawgiver
for
could not be of
pen
writing;
any
the same is the
"Is the benefit so
question arises: cause
is it the
existence?"
used
a
profit is the corner-stone of its
the
But
the
the
is
trade,
obtained
so
as
such as a pen becomes a utility
quite obvious that
unless
existence.
own
in its perfection
quality is expressed through being writing
It
benefit case
"the quality of a thing
purpose
Al-Tufl sole
the
leading to the intention of the
has
which is embedded in its
argued here that the benefit
basis
to
which
intention
the
of
its rationality; and has formulated his
owes
opinion by making maslahah pre-eminent above all the evidences
of
the
Sharlcah
that
so
pivot of its rationale. However, on
consideration
the
of
the
legislation in the Sharicah not
stands
as
the
if his theory is based
maslahah as
alone
as
a
cause
he has argued,
of
then it is
for him to hold it unique amidst the rest
proper
Sharicah due
evidences
of
the
evidences
do
share
based
it
this
common
consideration
to
the
fact
factor.
But
all
that
his
the
theory is
of maslahah
as
the
pivot of the intention of the Lawgiver
as
he has argued
in
so
on
many
al-Tufi
3
See
the
places in his
aimed
Mustafa
at
Zayd,
al-Wahhab Khallaf,
treatise.3
It
sole
is clear that
emphasizing the general outlook of
op. op.
cit., appendix, pp. 21 & 46; and cit., pp. 110, 129 & 141
188
and
cAbd
maglahah as he perceived it, considered
Sharlcah as
it
is
has
be
to
by
the
strongest of all the evidences of
the same as "maslahah mursalah"
no means
defined by
been
and the maglahah which he
the jurists.
This could be
easly discovered from his technical definition of "Maglahah is
maglahah when he said: intention of
the
of
worship a
i.e
of
said
acts
that
maslahah
and
not
cause
leading to
Lawgiver whether being in the acts
law."4
customary
or
maslahah
the
a
al-Tufi has made
By this,
general feature encompassing both the fields
-
worship and customary law; while he himself
the
realm
in
which
consideration of
the
operates concerns transactions and customary law acts
worship...".5
of
In this he seems to be
arguing with himself. Secondly, it is also obvious in al-Tufi's assertion that
reckoned
he
nineteen comment
"al-magalih of
the
Sharlpah when he made his
hadith
".la
darar
evidences on
the
introduction
of
his
book
which he
established
Sharicah
are
4 5
See
reference
See
Mustafa
Khallaf, ^
See
Mustafa
al-Wahhab 7
op.
al-mursalah" with the
nagg
that
wala
and
at
al-ilahiyyah"7
"Al-isharat the
dirar"6
the
after
strongest evidences of the
(Qur'an and Sunnah)
and ijmac which if
above
Zayd, op. cit., cit., p. 112 Zayd,
Khallaf,
op.
op.
appendix,
p.
19;
and
cit., appendix, pp. 16, cit., pp. 109, 110
Najm al-Din al-Tufi, Al-isharat al-ilahiyyah,
189
cAbd al-Wahhab
17;
p.
3
and cAbd
they disagree with maslahah it is obligatory to make it take
precedence
have
contradicted
nass
and
them.
over
himself
ijmac, and at the
Here again al-Tufi
seems
to
by making maslahah weaker than time making it the
same
strongest evidence above all.
Thirdly, he has expressed his method in connection with
consideration of
the
theory is not the al-masalih
void.9
is
that
Thus
the
unrestrictness neither -
which
been
from
that
every
intention
any
a
in
that
that
maslahah
which
conflicts
type of maslahah,
keen
his
Imam Malik held of
what
sense
considered is
said
and
the
even
the
Malikis with
nass
in its form of
i.e the benefit which has
(mursalah)
al-Tufi
free
as
al-mursalah8
maitained
have
same
maslahah
by the Sharicah
nor
to
general maslahah
analyse is
a
reservations and conditions.
cancelled it
He visualises
kind of maslahah enters the realm of the of
the
Lawgiver without distinction
or
categorization into the different kinds of maslahah. Never
does
he
(daruriyyat) the
luxurious
demarcate
from the reasonable ones
(tahsiniyyat)
agreement between nasg, basic
8
fundamentals
Mustafa
Khallaf, 9
Mustafa
Zayd, op. cit.,
op.
Zayd,
between
op.
the
necessary
ones
benefits
(hajiyyat)
and from
though he points out the
ijmac and maslahah in the five
(i.e the preservation of religion,
cit., appendix, 138
p.
cit.,
pp.
51-53
190
p.
43?
and cAbd al-Wahhab
mind,
soul, went
offspring and material
further
even
than
the
division
and
a
of
maslahah
into
categories is
unnecessary
judge masalih (benefits) should be
to
comprehensive than that and what
he
issue
the
by Ibn Qudamah by saying that
uselessly painstaking, and states that the best
method
here
in his commentary on
that,
al-Rawdah written
Mukhtasar
wealth).10 Al-Tufi
says
precise. Let
more
those
that
quote
us
there in order to cast some light on
Al-TufI
regarding his opinion.
informmed
more
who
divide
says:
"Be
into
maslahah
considerable,
cancelled and unrestricted;
unnecessary
have just flattered the issue and taken
-
pains for nothing while the
way
quite general and concise. Thus
necessary
and
to judge maslahah is we
have established that
the
Lawgiver has considered maslahah in absoluteness and
has
excluded if
that
an
it,
and if
it.
But
and
bears
mind
if
that
injury in its entirety.
action consists
of
pure
an
action
injury the
on
envelopes maslahah on the one hand the other
attainment
side
which
mere
selection.
op.
See
cAbd
maslahah we have to do
it consists of total injury we must discard
of
-
and it
maslahah
repelling of injury in that action
10
So upon this we say
carries An
al-Wahhab
cit., appendix,
p.
more
weight
or
-
we
appears
in
our
is
as
we
either prefer the
equal as the
make our choice by
example of this issue is like the one
Khallaf,
op.
cit.,
46
191
p.
141;
and Mustafa Zayd,
who
does
not
his body in
cover
(the front or the back of his body);
parts only
is he to
case,
enough clothes to
except a piece which suffices one of his private
prayer
unveiled
an
possess
cover
shameful
his
due to the fact that it is
rump
evil,
has
or
he to
part because of facing the qiblah
holy shrine in Makkah),
in this
cover
his
front
(the direction of the
is he to choose between the
or
two
because
the
two
the
injury and either the attainment of maslahah is
of
the
conflict
between
the
and
maslahahs
two
injuries? But if the maslahah is not
as
equal as
weightier than the repelling of injury or vice versa, then an
adhere
we
exercise
the
weightier
advocates
consideration,
wine),
becomes
By this
redundant.
is
found
so
because
inherent
therein its
rule
regard to legal maslahah is
is
of
(to avoid the making of
grapes
residence
in
(by
a
conflict
the
them.
weaaker
man
between
Nonetheless,
than
the
and
a
woman)
maslahah
-
and
the maslahah
enormous
mafsadah,
and
prohibition is weightier than its permission,
which
necessitates
could
be
the
With
whether pure or preferable,
to share
or
mafsadah
of
by the Sharlcah.
attested
prohibition of growing
thus
simply because such
As to the cancelled maslahah such as the
apparent.
this
one
division of maslahah which has been mentioned by
every its
is
to
obtained
unmarried
the
blocking of the benefit which
by growing grapes and the companionship couple in the same appartment due to the
expected mafsadah of distilling wine and committing
192
adultery. just
Were it to be admitted that this mafsadah is
suspected one not real and decisive whereas the
a
conflicting maslahah is decisive, would
maslahah
Al-Tufi maslahah.
be
more
appropriated than vice
sets
He
thing
a
versa".11
neglects the divisions and categories of casts
away
all that which has been mentioned
by those who divide maslahah into he
then the attainment of
criterion
new
for
the
a
number of types and
decision of
whether
or
an
action bears maslahah which ought to be
obtained
or
bears
which must
be
expelled
according to the quantity of maslahah
or
mafsadah
therein.
Thus,
bears
injury
no
mafsadah, also
case
bears
no
heavier
any or
with
its maslahah is weightier than its
therein,
the
The same is the
maslahah
the mafsadah
side;
maslahah
But as
or
regards
an
and mafsadah
in
or
a
or
is
thing which
equal proportions its
is to remain in
suspension awaiting the discovery of which probable,
side
its eradication is
action
judgment, according to al-Tufi,
is
among
doing it...
and
things from this angle and this consideration
See
Ibn
Badran
the two
making preference between doing it and
not
11
i.e
anything which is completely harmful and
maslahah than
-
action which is totally beneficial and
its enforcement is obligatory.
compulsory. contains
mafsadah
a
In other words,
al-Dimashqi,
al-Tufi observes actions
Nuzhat al-khatir
416
193
-
i.e
al-catir, vol. 1,
p.
actions
which
is
them
is
enunciated. if
even
ordained
in
their
it
is
obligatory to put into practice
fact
In
favour
or
ijmac is
no
they go against nass and i jmac. Whereas if the
actions
is
the maslahah in
matter how awkward they may appear and even
no
nass
no
or
weightier than their mafsadah, must be put into
practice if
contain pure maslahah
bear
heavier
foresake
total
their
than
them
mafsadah
found
the mafsadah
therein
it is compulsory to
maslahah,
if
even
or
they are ordained by
nass
and
ijmac. As regards the actions in which their maslahah and mafsadah
by al-Tufl till
or
equilibrium in
this
every
aspect
case
are
it
is
found and preferences not
recommended
ijmac simply because those actions
over
nass
conflict
as
-
their judgment will be suspended for
-
probabilities in
and
in
are
and
to
are
go
are
presumed a
while
made;
against
nass
not stronger
ijmac due to the weakness caused by the
between
maslahah
and mafsadah
therein.
Inspite of this criterion by which al-Tufl casts all the divisions of maslahah in his commentary to
away the
book
"Mukhtasar
nonetheless, in his
but
as
of
Ibn Qudamah,
al-Tufl himself mentions this very criterion
commentary to the hadlth "la darar wala dirar" but
in different nusus
al-Rawdah"
and
terms
ijmac
are
-
in which
he
establishes
that
the
applicable to the acts of worship;
regards the judgments of transactions and customs
194
paramount.12
is
maslahah
Then he puts a rule to avoid the
opposition of the masalih by the
mafasid13
there
state
also
there the
doesn't
he
could
in
and mafsadah
maslahah here
there
that
be
a
supposes
equilibrium of
aspect of an action,
every
(see above),
instead, he enunciates and fixes that
judgment should be made by preference and in
Muslim scholars
Most
action which
bears
proportions in the
one
of
are
the
opinion that in
aspect does not exist.
every
case
of
lots.14
and mafsadah
maslahah
an
equal
With regard
example which al-Tufi has given i.e that of the
who misses
clothing for
cover
that,
the covering of his
fact
female
of
his
could
the
but
stop from making a decision as he stopped
suspicion it should be made by drawing
to
of
and
one
it
that
is
a
prayer
except a piece which
private parts, their opinion is front part is paramount due to
particular
one
in which male and
differ.
Moreover,
a
comtempoV"3fy°f
w^°
one °f the
celebrated
Hanball
opinion
the issue in which its maslahah is as equal as
its
on
mafsadah
could
called
scholars
give
more
Ibn
Qayyim whose
light in support of the view
1 O
See
Mustafa
Khallaf, 13
See
cit., 14
op.
Zayd, op.cit., appendix, cit., p. 138
Mustafa p.
Zayd,
op.
cit.,
p.
47;
142
Ibid.
195
p.
43;
and
cAbd al-Wahhab
and cAbd al-Wahhab Khallaf, op.
of
the
majority of the Muslim scholars. He
says:
"As regards the second issue - the one in which its maslahah is equal to its mafsadah - there is difference and dispute as to its existence and ts
judgment;
some people affirmed it while the denied it. The answer to this question is this situation seems unlikely to happen even
others
that
though people are divided upon it. To clerify assertion further, either this issue's existence demands to be practised because of being its maslahah weightier (than its mafsadah) or it is a non-existent one which ought not be practised due to the fact that its mafsadah is this
heavier
than
the
maslahah
inherent
therein.
A
thing is done because of its maslahah and not done due to its mafsadah. However, to get a thing in which its maslahah weighs equal to its mafsadah is a dictum whose existence is hardly to be proved; but proof rather stands against it.
Actually, maslahah and mafsadah, benefit and injury and pleasure and pain, if they are in opposition to each other, one should prevail over the other and the judgment will be in favour of that which prevails. To get a situation in which the two opposing qualities are equal in such a way that one does not prevail over the other is unlikely. The case should be stated either: the two contending qualities are together in existence, which is impossible to occur in a single place; or it should be said that the two qualities are together non-existent - which is also impossible, simply because it is a preference between the two without a qualifier. This impossibilty is a result of a supposition of the contention between the two qualities thrusting back each of them which is an invalid case; thus, one of them should subdue its opponent and take with it the right of
judgment".15
Al-Tufi •
in
every
maintains
ordinance
as
that
God
has
considered maslahah *
implied in the following
"0 mankind! There hath come to you a from your Lord and a healing for the
15
See
Ibn
Qayyim,
Miftah dar al-sacadah, vol.
196
2,
verses:
direction (diseases)
p.
17
in your hearts, and for those who believe, a Guidance and a Mercy. Say: "In the bounty of God and in His Mercy, - in that let them rejoice; that is better than the (wealth) they hoard".16 deduces
He
from
these
two
verses
aspects which
seven
Lawgiver.17
verify the consideration of maslahah by the then
He
the
establishes
Qur'an thoroughly,
evidences
which
if
that
were
to
study the
would be able to find
we
indicate
we
this.
Al-Tufi
His
deeds
mankind's
for
the masalih
and
not
beneficence. His
of
comprehensive,
in
the
is
His
become
objectives
God's consideration for a
necessity and
favour
a
for maslahah
care
Al-Tufi infers from this and
life
well
as
oblivious
of
time
the
at
as
in
their
cared lives.
for
which
for
blood
the
and
the
10:
57,
58
See
details
of
al-tashric al-Islami 19-20;
and
creation,
hereafter,
masalih
in
are
the
in the
and after rules
that
and
imperative to be
part of the maslahah of
their
but those rules and judgments are
security of their material wealth,
their
Qur'an, the
are
only this,
Not
means
their
and
their
of
judgments of the Sharicah, which
17
much
so
extended to all places and situations
creatures
mundane
16
the
that it is impossible for God to consider maslahah
says
the
ultimate
Him. God's
upon
suitable way...
most
the
to
Thus,
creatures
obligation
an
is
for
connected
are
of
many
elaborates
point that the Lawgiver has cared for maslahah that
nusus
and without which their
honour;
these wa
aspects in the appendix of Al-maslahah fi Nairn al-Din al-Tufi, by Mustafa Zayd, pp.
cAbd al-Wahhab Khallaf,
op.
197
cit.,
pp.
112
-
113
existence
whole
without its
earth
is
so,
in
chaos.
it goes
Thus,
If the
it therefore becomes commendable and
exist.18
where they
nusus
although it is inappropriate to subject the
However,
the
be
in the ordinances of the Sharlcah.
obligatory to follow the
maslahah,
to
nusus
will
saying that God has considered maslahah in all
aspects
case
on
elaboration
of
God has left the
some
for ijtihad in
scope
law.
Although this explanation in its general and detailed al-Tufi
goes
evidence
of
reconciliation
al-Tufi and
and
maslahah
in
evidences
See
his
of
with
nass
op.
"If it
and i jmac or any other but if it
evidence of the Sharlcah then
is made
between
them
as
we
over
have
a
mentioned
the other
making it take precedence through the method
the one
the
The
reason
himself
in
for the
this
ambiguity is that
sense
that
he
presumes
impossibility of the Lawgiver neglecting hand,
and
assumes
the conflict of
Sharlcah in the other hand;
judgement
Mustafa
Khallaf, 19
any
contradicts
confirms
bases
surprising thing is that
Sharlcah it's well and good,
clarification.19
of
the
of particularising maslahah
means
evidence
18
agrees
the
with
conflicts
clear,
to say immediately after this:
on
(i.e maslahah)
by
is
nature
on
the
and then
this assumption. Since the
Zayd, op. cit., cit., p. 118
appendix,
Ibid.
198
p.
25;
and
cAbd al-Wahhab
Lawgiver has considered maslahah in creatures'
lives,
al-Tufl
think
to
His
are
it therefore goes against logic for that
dictates)
own
aspect of His
every
the
of
nusus
the
Sharicah
(which
could conflict with maslahah,
especially when he has not given
example of such
one
a
situation.
The
clearer the
when
Qur'an,
maslahah
it
contradictions
is
is
there
with it
ijmac,
expel evils.
evidennces
sound mind
any
the
to
the
Sunnah
Qur'an,
regards
it contains
he
says:
"Since
it has therefore to
masalih)".21
In connection
either to bring about masalih
(ahkam)
This principle is accepted even by those
profess to the fact that ijmac is of
"As
Sharicah";
and
of the
one
in connection with
common
al-Tufl says that every being who possesses a
sense,
rules
of
said:
has
in it except
verse
As
theory become
"All the authentic Muslim scholars
he:
says
or
not
himself
he
(in containing
verify the rules
do
no
masalih".20
or
do
who
that
see
clarification
a
agree with
we
in al-Tufi's
of
knows
for
transactions
sure
that
the
objective behind the
(mucamalat) and customary law in
just law is for the attainment of the benefits of
people;
and there is
Islamic
law,
it is
no
law which is more just than the
therefore,
the
best
of
all
the
laws
n r*
See
Mustafa
al-Wahhab
Zayd,
Khallaf,
cit., appendix, pp. cit., pp. 115 - 116
op.
op.
Ibid.
199
22
-
23; and
cAbd
in
consideration of
the
assertion
the
al-Tufi
of
in
masalih...22
issue where
the
categorically that there is which does
Sunnah
or
evil;
and that
This
no
neither
he
is
the
declares
either in the Qur'an
nass
contain
maslahah
expel
nor
ijmac of the Muslim mujtahids is
supplementary to the nusus.
would
It
that
seem
he
should
regard the Sharicah as
capable of accommodating all types of masalih which no mentioned
has
nass
no
ijmac has approved of.
those masalih should not go against
Nonetheless, ordained
been
which
or
in
the
Sharlcah either
directly
what has
or
indirectly. Above all, those masalih, whatever they might be,
could not be termed fundamental
the
that
as
primary
benefits
have
ones
due to the fact
been
considered
by the
Sharicah and indicated by more than one evidence.
Actually,
those masalih
are
regarded
as
secondary
ones
emerging after the epoch of legislation (cahd al-tashric) and
it
therefore
their
was
necessary
consideration.
annextures
and
Those
to lay down some rules for
masalih
are
regarded
as
supplements to the primary ones and not
opponents of them.
As
himself
22
See
regards the question of an with
Mustafa
Khallaf,
op.
a
band
Zayd, cit., p.
of
op.
Muslim
200
shielding
prisoners of
cit., appendix,
116
enemy
p.
23; and
war
which has
cAbd al-Wahhab
been mentioned which
could
mentioned this
by al-Ghazali
seem
conflict
the
between maslahah band
that to
pass
lives and
few
those
of
the
is
what
we
have
would argue that
between
two
benefits
and
in not
explanation is that when
Its
nass.
of
kept alive and the enemy is left
just to
preserve
the
but when that band is killed
people;
resisted, the maslahah in this
enemy
greater which has lives
lies
the maslahah is
through,
of
the
and
Muslims
of
contradiction
most Muslim scholars
here;
issue
real
a
above)23
(see chapter three
case
to do with the preservation of
entire Muslim Ummah.
doubt,
No
is the
the
preservation of the lives of all the Muslims precedes that
of
a
small
That is why we see al-Ghazali
group.
putting condtions
on
the issue in question showing the
necessity, decisiveness and its primary status which it
makes
deserve
pre-eminence
over
maslahah.24
the other
Suppose al-Tufi claimed that his theory of the
pre-eminence of maslahah Sharlcah and
nass
"la of
darar the
is
23 24
reality particularising
dirar"
wala
consideration
that
a
nass
by another
by maslahah due to the fact that the hadith
not
restricting mean
in
all the evidences of the
over
every
it
is
See
al-Ghazali,
See
al-Khidr,
is of
nass
not
a
maslahah
nass
the
to
in
the
extent
necessity of
which bears injury. This would
maslahah
Al-mustasfa,
Usui
decisive
al-fiqh,
which
vol. p.
391
201
1,
is
pp.
preceding
294-296
nass
but
it
is
another
takes
Muslim scholars would
most
be
could
it
situation
the
in
the
restricts
a
general
one
"la darar wala dirar",
nagg
method
which
used
could
be
derived
issue
results
in
a
restrict
to
nass
order
the
derived
issue,
are
to
in
three
his
which
claims
assertion are
as
special
a
made legal to
on
if
was
it
which of
have
the
follows:
consideration of
is
it
cause
of
a
serve
nass
some
for
existed,
ever
so
by
that
purpose.
been
nusus
let
us
(i)
that the nusus are
maslahah
accordance
no
are
nass,
over
diversely
the cause of difference in
is
a
matter
which
(ii) is
is
that
agreed
diagreement therein,
which
202
discuss
put forward by al-Tufl
precedence of maglafrah
in itself and there is a
nass
necessary
judgments which is detested by the Sharicah...;
upon
The
complete this point in the survey of
opposed to each other and
the
nass
whose application
excluded from this general
relationship between maslahah and the
particularization
other nass
any
causing injury. Whereby it
injuries In
of
particularizing
a
(mas'alat farciyyah)
restrict
special
some
this claim (which
which is quite general and
is before al-Tufl
to
Nonetheless,
and not vice versa.
comprehensive,
him
that
argue
pointed out earlier that it is
was
which
precedence...
adopted to elaborate the theory of al-Tufl)
reverses
as
that
nass
required by the
thus
Sharicah;25 (iii) that it is established in that
is
there
number
conflict
a
between masalih *
*
the Sunnah
and
in
nusus ■
*
a
issues.26
of
Al-Tufi
has
presented the first two arguments
together and deduced from them that the consideration of maslahah
is
of
due
nusus
upon
be
worth
following rather than the application fact
the
to
that
the
is
which
matter
agreed
deserves the right to be followed and commanded to
adopted rather than the
disagreement.
one
on
which there is
Then he put forward as a proof of his
argument some verses of the Qur'an and ahadith.
He also
pointed out the difference of opinions which happened between
the
of
Imams
the
celebrated madhahib
four
and
disagreement between the followers of these madhahib
the
as
a
proof of his argument about the contradiction of the nugu?
and their diversity...
about
nusus
he
claimed
that
ibn
has
nusus
of
mentioned
after
that,
from his
narrators...
pointed out
are
the
al-Khattab
Sunnah
the
here
because
As
an
Possibly, what al-Tufi meant
cause
who
of
Sunnah
difference
particularly,
that in
some
hadlth
people is
cUmar
rejected the idea of compiling the
colleagues
as
reported by
some
regards the third argument,
he has
alleged conflict with miscellaneous
n c
See
cit., 26
See
Mustafa p.
Zayd, op.
cit.,
p.
35; and cAbd al-Wahhab Khallaf,
129
Mustafa
Zayd,
al-Wahhab Khallaf,
cit., appendix, pp. cit., pp. 133 - 134
op.
op.
203
39
-
40; and
cAbd
op.
examples which he considers to be connected with his argument.
Al-Tufi of
reasonable
seems
he
when
demands
opinion in legal judgments. Nevertheles, in
incorrect
his
assertion
that
the
it
do
nusus
agreement seems
contradict
other
in
diversity
difference
of
opinion detested by the Lawgiver; whereas
each
most
Muslim scholars
with
each
the
and
other
benefits
maslahah assumed
would not
be
not
to
this the
is
illegal.
each
other
claim
as
in
harmony
If the nusus
al-Tufi
in
were
claimed, *
•
then
true,
was
it
our
own
were
benefits
of the Sharlcah, and
source
instance
in which
some
nusus
of them declared the
some
In other words all
very
consideration of itself
in
which
tensions.
maslahah
no
nusus,
rendered same
thing
is
not
difference of
which,
as
an
argue
that
agreed upon maxim
opinion is viewed
al-Tufi claims,
are
as
full
They assert that it is the consideration of is
maslahah
which
maslahah
keeps on evolving with changes in environments,
a
a
the nusus do complement each
Secondly, most Muslim scholars would
compared to the of
are
comprehensive enough to accomplish
principal
no
thing legal and
in
nusus
Qur'an.
There
the
the
rid of this contradiction, and if it
get
become
other.
that
see
enough to depend on the consideration of
that
the
to be the cause of
as
required for mankind.
contradiction with would
so
disagreed issue due to the fact that
204
times, peoples and societies. As regards the
places, nusus,
change is found therein to different
no
environments,
places,
The
constant
nusus a
are
a_
standard.
it is true that not all of them have reached the
Prophet, of
not
(narrated by a vast number).
tawatur
Nonetheless, does
and
regards the narrations of the traditions of the
As
status
times, peoples, societies etc...
that
mean
decisive.
Still
the
of
nusus
formulate
Muslim scholars would argue that
most
most
restricting
traditions
the
Qur'an and Sunnah in their verified
totality do not
homogenous
corpus
general nass by a special one
a
not
are
they would not admit to speculate that
decisive
a
of
this
after
-
(takhsis
al-camm) and clarifying the aggregate whole (bayan al-mujmal). evidences
other
as
criterion the
worship within the
nusus
which
seem
to
conflict with
of
their
multiplicity,
Sunnah.27 be
Mustafa
Zayd,
the
of
maslahah.
rules
•«
■-
of
As
from
nusus
205
al-Tufi •
talks
about
customary law and
cit. appendix, pp. cit., pp. 138 - 141
op.
op.
nusus
The seemingly conflicting
he again puts a measure
al-Wahhab Khallaf,
each
brought into accord without reference
consideration of
the
lays down a
bing accord between the different
to
evidences
See
of
rules
result
transactions,
27
acts
therefore
the
the
a
the
when talking about
of
the
Qur'an and
could to
for
of
context
Even al-Tufi himself,
to which the
43
-
46; and
cAbd
masalih and
mafasid
the
brought into adjudgment if
are
they seem to conflict with each other so that their
ever
tensions
are
avoided.28 al-Tufl
Furthermore,
is not satisfied with the
general reconciliation of the nusus and maslahah but he shows to
the
of
maslahah
Is
it therefore
weakness
lots.29
drawing
this
that
law,
is stronger
maslahah,
as
*
a
he
as
»
is
forced
proper
resort
to
to say after
device of legislation in Islamic
Al-Tufl has insisted in his
than nass?
theory on the decisiveness of the consideration of maslaftah in his verification of various evidences which he
put forward in clarifying the care of the Lawgiver for
maslahah.
At
the
mutawatir
sarih
same
time
he
categorised
nass
into:
(i)
(a clear cut narration from a vast
O Q
The some
scholars
of which
Al-mustasfa
of
have
which
usul
al-fiqh
use
been mentioned
could be
a
number of
by al-Ghazali
summarised
a
s
canons
in this
issue
in his book
follows:"..if
it
is
possible to accord together the two contending nusus it's well and good, but if it becomes difficult and the date of enactment of each nass is known, then the last to be enacted abrogates the first one, in
but will
case
another
nass
date is not known then verification by those nusus judgment is sought from other nass [or evidence]. If
the
fall and
[or evidence]
is not
found then the mujtahid
is at
liberty to choose one out of the two. [Al-Ghazali, Al-mustasfa, vol. 2, pp. 392 - 394]. He has also mentioned how one nass could be preferred from the other in seventeen ways which are connected with sanad [chain of narrators], matn [text] and five ways which are connected with other issues. See the details in vol. 2, pp. 395 - 398 of Al-mustasfa. We should not forget also that the conflict of nusus is just a mere surface perception only as far as our comprehension and knowledge are concerned and not in reality as we have mentioned above. See al-Shatibi, Al-muwafaqat, vol. 4, p. 63; Qur'an, 4:32 and Usui al-tashric al-Islaml, p. 273 29
You
will
"Al-maslahah
find fi
this in four places of p. 47 of the appendix of al-tashric al-Islami wa Nairn al-Din al-Tufi" by
Mu§£afa Zayd; and cAbd al-Wahhab Khallaf, op. cit.,
206
p.
142
(ii) mutawatir muhtamal
number), a
(iii) ahad sarIh (a clear cut isolated
number),
vast
narration) and (iv)
ahad muhtamal
(a dubious
to
be
undecisive
as
he
puts it in his own expression,
in
its
has
the mutawatir
even
generality is
isolated
Then he judges all these categories of nass
narration).
It
narration fom
(a dubious
simply because,
"it might be dubious
unrestrictness...30
or
obvious
sarlh
that
presented between
the
differentiation which
al-Tufl
and the consideration of
nass
maslafrah is not equitable and just due to the fact that if
the
evidennces
establish decisive
the
which
he
has
consideration
applied to confirm and
of
maslahah
in general
that they
are
same
is true with the
decisive and
origins of the Sharlcah and the strongest any
are
enough to make it one of the devices of
legislation in Islamic law, the nusus
in general
need of proof
verification.
or
of the
one
source
without
If al-Tufi intends to
give the quality of decisiveness to
every
secondary
ma?lahah just because it is in the realm of masalih which have
received
therefore
be
decisiveness
the more
to
care
of
the
Lawgiver,
appropriate to attribute the quality of
every
nass
in
every
secondary issue
simply because it is in the realm of the Sharlcah.
3^
See
Al-Tufi's
Mustafa
Khallaf,
op.
Zayd,
cit.,
p.
it would
nusus
consideration of maslahah
op.
cit., appendix,
123
207
p.
30; and
of the as
a
whole
cAbd al-Wahhab
only decisive device of the Sharlcah and then
to
be
the
to
judging all the
differentiation. the
to be undecisive is
nusus
follows
It
therefore
a
his
that
vacuous
theory of
pre-eminence of the consideration of maslahah which is based
nusug
The
correct.
both
that
this differentiation is not
on
right attitude towards this issue should be
the
proofs
-
i.e the
consideration of maslahah
are
-
and the
nusus
decisive
Sharlcah.
They both consist of juz'iyyat
which
either
are
over
qatciyyah (decisive)
(speculative); and
devices
of
the
(partial cases) zanniyyah
or
do the rest of the evidences of the
so
Sharlcah.
Al-TufI other the
so
has
Lawgiver.
between due
to
the the
in
result
to
as
judged the
nusus
the
laws
to contradict each which
abhored
are
by
The question of the difference of opinion
Imams
of
the
Islamic
schools
of
apparent meanings of the nusus
jurisprudence
is not
an
astonishing feature, but the truth is that he does'nt sight
even
a
single instance in which such
shows
that
these
Imams
do
not
agree
a
difference
to the fact
that the
Lawgiver has cared for the masalih of mankind in His commandments
concerning either acts of worship
obligations. But were
of
as
we
or
social
have seen in chapter three when we
discussing the position of the Imams of the schools
jurisprudence in relation to the theory of al-masalih
al-mursalah, maslahah
that
should
they all
agree
to the point that
duly be considered in
208
every
judgment and
is
of
one
(i)
neither is
there
devices
the
nass
need
of
i jmac
nor
and
the
of
qiyas is found, and
nor
necessity (darurah)
maglahah to the exclusion of
It
Sharicah in matters where:
(ii)
to consider
and ijmac.
na?s
without saying therefore that the difference
goes
opinion between the Imams has not been caused by the
preference of the apparent meanings of the nusus over the consideration of maslahah, of
levels well
as
knowledge and understanding of the
the
it
reason
is
not
Al-Tufi between
the
neither
a
acts
this
For
in
the
application of
worship and mucamalat
of
by establishing that the acts of worship
right of the Lawgiver the
as
mujtahid.
differentiated
the
time
nor
(God)
as
such in which
place and methodology are known
except from Him only;
thus it is obligatory to take
evidences
of
asserted
then
and
conflict
rules that
31
See
Zayd,
of
and
cAbd op.
the
acts
that
in
the
such
a
worship from the
nugus
way
are
in
a
nusus.31
state of
seems
al-Wahhab
cit.,
to
that they cause difference in
contradict
Khailaf,
appendix,
pp.
He
opposition
judgments. Most Muslim scholars would
al-Tufl
the
to blame the nusus for the
proper
has
(transactions) are
nusus
degree of ijtihad and observation.
misinterpretation of
nusus
but by the difference of
op.
21,
cit., 46
209
himself
pp.
114,
in
that
argue he
140; and Mustafa
proclaims the evidences he
of
to be the main source for
nusus the
judges these
of
acts
worship while at the
same
time
to be in conflict with each
nusus
very
the
other
in
Their
argument is based on the fact that it is illogical
to
and
rules
judgments for social obligations.
accept something to be right in one place and at the time
same
him
for
in
the
the
to
take
acts
of
source
for
rather
to
other
wrong the
in another place.
nusus
evidences
so
their
of
It was necessary
contradicting to each other
as
worship too and
the
not to make them the and
rules
judgments;
or
accept these nusus as not conflicting with each and
all
at
social
be
to
base
obligations
as
them the laws concerning
upon
is the
case
with the rules
concerning acts of worship. This with
the
is
the
nugus
discussed
its
acts
of
went
further
stand-point of al-Tufl in connection well
as
with the ijmac when he
as
evidences
in
relation
to
the
of
rules
the
worship and the laws of social obligations. He
invalidated
refute
to
it
in
such
every
evidence of ijmac and
a
that at the end of his
way
analysis the whole banch of its evidences became demolished, all
this
is
it,
because
saying: not we
nonetheless,
darar
wala
slander
do speak of
our
consideration "la
to
"Be informed that our intention from
of
ijmac and to totally demolish it in the acts of worship,
intention is maslahah »
(jirar"
«
to
which
clarify that the is
based
on
the
hadith •
is stronger than ijmac due to the
210
fact
that
base
as
is
apparent in
concluded
is
base
than the latter's
in its proof and from what could be
refutation of
our
stronger
the
evidences
of
ijmac".32
ijmac by raising various objections to its
weakens
He
former's
the
evidences
so
evidences
which he
Then
this unfounded hypothesis, al-Tufi bases
upon
rules
and
that
the
This
has
put forward becomes very strong.
is
not
in the acts of worship simply because
rejected there.
leads
to
the
question:
supposed that there is maslahah?
some
judgments in which he considers it to be the
strongest evidence maslahah
strength of maslahah and its
Most
Muslim
a
"Why should it be
conflict between ijmac and would
scholars
argue
that such a
supposition is merely theoretical simply because nothing has
been
presented
situation occured. conflict
between
as
actual instances in which such a
They would also argue that even if a
ijmac and maslahah occured in
some
questions another ijmac would have been made which would take
into
conflict in
the
consideration with
the
that
maslahah
previous ijmac.
which
seems
In reality it
to
is only
opinion of al-Tufi in which ijmac is restricted to
water-tight compartments, whereas most Muslim scholars
32
Thus,
_
—
the expression of al-Tufi as he raises an objection on his claim that the consideration of maslahah is stronger than ijmac, while he maintained that his objection is only to point out the strength of maslahah and not to revile ijmac and totally demolish it... See cAbd al-Wahhab Khallaf, op. cit., p. Ill; and Mustafa Zayd, op. cit., appendix, p. 18 goes
211
of
are
opinion that ijmac has
the
capacity to
a
accommodate
within
its
scope
environment
and
any
period due to the fact that there
be
can
on
a
consensus
death
of
the
incorrect
of
the
judgment at
legal
a
at
to
maslahah in any
mujtahids of the Islamic Ummah
particular time after the
any
Prophet.33
It follows therefore that
think
there
and
and maslahah
any
that
base
is
this
on
a
conflict
thought
between
More
that
of
the
astonishing is the
maslahah
is
argue
that
source
of
the
that
be
the
the
consideration
legislation.
of
maslahah
proof to
a
is
an
agreed
It is as if those who reject ijmac
only ones from whom opposition is feared most and attainment
of
their
consent
different
from
each
other.
will
cast
away
every
In reality the two issues In
other
it would
words,
accepted from al-Tufl that the Shicites,
the
Kharijites and the Nazzam (among the Muctazilites) who
33
See
of
those who
even
ijmac is not
type of opposition therein... are
source
that the al-Tufi's dependence on the
agreement of those who reject
are
agreed
an
ijmac accept its validity. Most Muslim scholars
oppose
show
all the
in which al-Tufl claims
case
legislation in Islamic law saying that
would
over
Sharicah.
consideration of
the
ijmac
opinion of the
an
precedence of the consideration of maslahah evidences
it is
cAli Hasab-Allah,
Usui
al-tashric al-Islami,
212
p.
51
reject the ijmac, do accept and consideration of maslahah. also
is
maslahah
that
an
It
would
item of
upon
be
It
of
one
seems
basis
agreement before most of
recognised devices of Sharlcah.
the
and ijmac.
which
there
applied,
a
is
Wherever neither
for
a
act as an independent
can
a
secondary maslahah is found in
nass
If
certain
mujtahids have made
ijmac
nor
nor
a
the
attain maslahah♦
thing
or
issue,
hukm
could
be
even
if
goes
and
due
it to
the
the Muslim it is
is liable to
that there existed another
than the one enunciated by the Lawgiver
envisaged by the seemed
an
it could sometimes happen,
Nonetheless,
maslafrah stronger
or
in its favour,
consensus
through need and necessity,
two
qiyas could be
Lawgiver has provided
primarily presumed that this hukm (law)
these
It also seems
rule should be exercised for its attainment
its maintenance.
ordinance
as
which laws could be based in the absence of
upon
na?s
so
accepted from him
appropriate to consider maslahah
more
apropriate that this device
or
the
Muslim scholars.
the
and
agree
to
of the Muslim mujtahids and
consensus contradict
enacted
to
attain
against the
submission
each
nass
and
the
other.
In
this
case
stronger maslahah
and ijmac, and that is
accommodation
of
that
need
necessity only. A typical example is the decision of
cUmar
ibn
al-Khattab
(the second caliph of
Islam)
amputate the hand of a thief in the year of famine
213
not to
cam
a
al-majacah,34 this
In
verdict
Malik,
of
connection,
Yahya ibn Yahya al-Laythi, a student of Imam
to one of
ibn al-Hakam,
which
month
of
wife.
Afterwards
sin
the
text
the kings of al-Andalus,
cAbd al-Rahman
have previously mentioned
we
in
The king intentionally broke his fast in the
chapter two.
his
it is useful to reproduce the
Ramadan
by having he
felt
by emancipating of
a
and wanted to expiate for
sorry a
But Yahya went against
slave.
hadith which
the
sexual contact with his
necessitates
the
remedy in
descending order, starting with the emancipation of
a
slave,
or
the
ending
up
with the feeding of sixty indigent people;
instead
of
fast
the
this
issue:
person
not
consecutive months "To
only. Al-Tufi said in
particularise fasting to
an
for the remedy of Ramadan is not far as
a
affluent
(from the
result of diligence of a mujtahid.
type of enacting laws by a sheer opinion,
a
either of
fasting of two consecutive months and
following this order Yahya obliged the king to
two
right path)
a
a
kind
of
restricting
a
diligence to look for maslahah
It
is
but it is or
a
type
general feature deduced from the
discarding of the details envisaged in the hadith of
al-Acrabi35
34
See
which
Muhammad
IS
a
general one and weak.
cAbd al-cAziz al-Hillawi,
b.
al-mu'minln cUmar
is
b.
al-Khattab", _
p.
—
Reported by al-Bukhari and Muslim
214
164
"Fatawa
Thus,
wa
the
Ugdiyat Amir
exercise
whole
beneficial
use
is
being particularised by the suitable
of
reason
(al-ijtihad al-maslahi
al-munasib). The particularisation of the generality is
praiseworthy method.
Muslim
Most
the
hadith
not
a
weak
al-Bukhari
but
one
be
and
the
beneficial
argue
which
-
Hadith.
of
use
of
is
the
■
in
so
many
a
places".36
that first of all
reason
is
■
emancipation of
highest category of
if the objective of
Secondly,
confirm
to
then maslahah in this
maslahah,
poor
of those
one
would
the
strong one being reported by
a
and Muslim
divisions
■
scholars
rich
al-AcrabI which al-Tufi has mentioned is
of
the
of
the
let this therefore,
place,
the Sharicah has
In actual fact,
differentiated between
a
issue
JL
is found in the
slave due to the fact that
a
attainment
the
member of
a
society is granted his liberty whose skills and knowledge in
the
building of
benefit
entire
the
to
a
better Ummah will be of great
community.
Whereas the remedy of
fasting the two consecutive months remains
terrifying agent for such
an
still that
of
no
affluent
fear
consecutive
1
See
417,
as
attained after
maslahah
the an
is
effect
in
individual
an
Ramadan may to
only.
Even if
here
due
to
the
not be able to fast the two
expiate for his sin since he has
~
___
_
al-Dimashqi, Nuzhat al-khatir al-°atir, vol. quoted from Sharh Mukhtasar al-rawdah
Ibn
Badran
fact
who performs sexual relations out
person
months
a
fasting the two months,
immaterial
seems
person
as
215
1,
p.
not
been able
emancipation of his
heart
breaks
the
for
be
to
a
patient in
slave,
in Ramadan, •
month only.
But in the
trace of fear will be found in
a
by liberating
fast
one
*
a
slave for each day he
he would be
wealth.
216
reduced
in
Chapter 7 STUDIES
MODERN
DEFINITIONS
AND
ON
THE
CONCEPT
OF
MASLAHAH •
modern
In
times
the
•
concept of maslahah has
undergone still further formulations. social
With the great
changes affecting all departments of life
utilitarian
philosophies became popular. The movement of
in
modernism
Islam
searched
in
Islamic
tradition
for
a
principle that would help them grapple with the changing conditions.
They found in maslahah such
concept.
a
Naturally therefore more attention has been given to the
study of this concept in modern times than
1857
In
Tunisian
law,
fundamental
"the
first
cAhd al-Aman,
the was
"God
document of
This document
issued.
reforms
later
became
in the
legal instrument in the 1860 constitution constitution
country in modern referred
a
before.
ever
to
as
times.1
the
be
to
issued
in
any
In its preamble,
-
Muslim
maslahah was
principle of interpretation of law:
has
given justice as a guarantee of the preservation of order in this world, and has given the revelation of law in accordance with human The
document
principles
1
Albert
[London: 2
See
as
Hourani,
Oxford,
Muhammad
Hourani,
op.
(masalih).2
interests then
expounded the following three
the components of the concept of maslahah:
Arabic
1962],
Bayram,
cit.,
p.
thought p.
in the liberal
age,
1798-1939,
65
Safwat 64
al-ictibar, vol. 2.
217
p.
11,
vide
liberty, security and 1867
In
al-masalik,
equality.3
Khayr al-Din Pashah,
in his Aqwam
reaffirmed that the principle of maslahah
government.4
must
be
this
principle extremely significant
to
the
justify
the
guide of the
as
He found
it could be used
change of institutions in the interest of
a
public
public
supreme
as
well as to condemn a change when it opposed
interest.5
In
in his speech of the
1899,
reforms in the court
systems in Egypt and the Sudan, Muhammad cAbduh also stressed law
the
use
making.6
maslahah
as
application of Islamic is
It
to
cAbduh both
guiding principle in
a
Schacht has argued that the principle of
J.
according to cAbduh,
maslahah, literal
of
be
noted
refered
to
interpretation of law
that
law.7
Khayr al-Din and Muhammad
maslahah -
preferable to the
was
as
principle of
a
and as such
a
principle of
change, dynamism and adaptability.
The
3
4 6 6
Muhammad
theme,
Bayram,
Ibid.,
p.
92
Ibid.,
p.
93
op.
in varying versions,
cit.,
vol.
2,
p.
has been
11
cAbduh, Taqrir Mufti al-diyar al-Misriyyah fi islah al-sharciyyah, [Al-manar] vol. 2 {1899}, p. 761
Mufti Muhammad
al-mahakim 7
same
See
Islam,
Schacht,
[Leiden:
Muhammad
Brill,
cAbduh, 1961],
p.
in The Shorter Encyclopaedia of
406
218
repeated by Islamic
large number of modern Muslim scholars of
a
law.
Among them the following are notable
illusrations:
Rashid
Rida, •
'
Subhi Mahmasani,' •
•
•
cAbd
al-Razzaq al-Sanhuri, Macruf al-Dawalibi, Mustafa al-Shalabi,
cAbd al-Wahhab Khallaf, Muhammad al-Khidr and
Zayd.8
Mustafa
In
1906,
al-Manar
journal of Islamic knowledge
published Najm al-Din al-Tufi's treatise
on
maslahah.
However,
the application of
raised
strong reaction among the conservative group of
a
in
scholars
Egypt.
the radical views of al-Tufi
Only to illustrate this opposition,
we
quote Zahid al-Kawthari's criticism of al-Tufi as follows: "One of their spurious methods in attempting to change the sharc in accordance with their desires is to state that 'the basic principle of legislation in such matters as relating to transactions among men is the principle of maslahah; if the text opposes this maslahah, then the
g
text
should
be
abandoned,
and maslahah should
The
following works by the authors enumerated below stress the dynamism of maslahah as a principle of interpretation of islamic law^ Rashid Rida, Yusr al-Islam, [Cairo: Nahdah, 1956], pp. 72 - 75; Subhi Mahmasani, Falsafat al-tashric fi al-Islam, transl. by F. J. Ziyadah [Leiden: Brill, 1961], {Arabic Ed. Bayrut, 1952}, pp. 130 - 133, 205f; cAbd al-Razzaq al-Sanhuri, Wujub tangih al-qanun al-madani al-Misri, in "Majallat al-qanun wa al-iqtisad", vol. 6 [196] 3 - 144 op. cit.}; Macruf Dawalibi, Al-madkhal ila —ilm usul [Bayrut: Dar al-cilm li al-malayin, 1965] pp. 442 - 450; Mus¬ tafa al-Shalabi, Taclil al-ahkam, —ard wa tahlil li tarigat al-taclil
{vide
Kerr,
al-fiqh wa
tatawwuratiha fI
cusur al-ijtihad
wa
al-taqlid,
[Cairo:
al-Azhar,
cAbd al-Wahhab Khallaf, Masadir al-tashric al-Islami fi ra la nass fTh, [Cairo: Dar al-kutub al-cArabi, 1955], pp. 70 - 122; Mustafa Zayd, Al-maslahah fi al-tashric al-Islami wa Najm al-Din al-TufI, [Cairo: Dar al-fikr al-cArabi, 1954]; Muhammad al-Khidr, Usui al-fiqh, {Cairo: Mustafa Muhammad, 1933} 1949],
pp.
278
-
384;
219
be
followed'.
What
statements, and construction of
evil
an
to
utter
such
it a basis for the a new sharc? This is nothing but an attempt to violate divine law (al-sharc al-Ilahl) in order to permit in the name of maslahah what the sharc has forbidden. Ask this libertine (al-fajir) what is this maslahah on which you want to construct your law?... The first person to open this gate of evil... was Najm al-Dln al-Tufi al-Hanbali... No Muslim has uttered
ever
to make
such
statement...
a
This
is
a
naked
Whoever listens to such talk, he partakes nothing of knowledge or religion".9
heresy. of
Al-Kawthari took
into
did
not
consideration
deny the fact that the sharc the
interests
and
that what is good and what is
people,
but he insisted
bad
only be known through revelation.
can
on
good of the
Maslahah as an
independent principle for the interpretation of law has, therefore,
no
validity whatsoever.
Al-Kawthari1s the
traditional
criticism of
view of
the
concept.
arbitrary and merely personal. arbitrariness
violation
of
Divine
law
the
typical of
Infact, this fear of on
the basis of
and hence considered to be is
familiar
a
history of the Islamic legal theory. similar
is
To him maslahah is
concerning the reasoning
regard for human interests, the
maslahah
feature
in
the
Maslahah and
legal principles which were employed in favour of
adaptability of Islamic law,
were
opposed on the same
grounds.
9
Zahid
1372
-T
al-Kawthari,
A.H]
as
Maqalat
—
ai-Kawthari,
quoted by Mustafa Zayd,
220
op.
[Posthumous Publication in
cit.,
pp.
164-66
Recent
studies
into two groups. al-maslahah
First,
al-maslahah for
istislah
al-maslahah
generally divided
is
second,
those
The focus in the first
maslahah proper but on
on
al-mursalah,
them
be
istislah and,
such.
as
of studies is not
group
can
there are studies dealing with
al-mursalah and
dealing with maslahah
that
maslahah
on
yet it is significant to note in
no
way
different from
al-mursalah.
Ignaz Goldziher compared istislah with istihsan
saying that the latter is which the
decision
a
which
discretion
other
hand,
removes
human
the
He
resembles well
as
the
revoves
of
an
depends
by analogy
can
is
beneficial.
a
opposes That
is
certain
a to
say
rigidity of law depending
individual on
be dismissed when
jurist.
Istislah,
upon on
the
it
rather objective method;
rigidity of law in consideration of general
"interests"
defined.
10
believes
he
istihsan
that
as
Hanafi principle according to
legislator finds that this decision
matter
the
reached
a
also
the
(masalih)
which
are
sufficiently
suggets that istislah partially
Roman
Rabbinic
legal principle of utilitum publicum
law".10
istishab in der Muhammedanischen Zeitschrift fur die Kunde des Morqenlandes, vol. 1 [1887], pp. 128 - 236; vide summary in French by G. H. Bousquet, in Arabica, VII [1960], pp. 12 - 15. The points of I.
Goldziher,
Das
prinzip des
gesetzwissenschaft, Wiener
resemblance with Roman
and
Rabbinic law
probably Goldziher refers to certain to the strict application of law
221
are
areas
not
elaborated
but
most
of flexibility in contrast
in
istislah
Bousquet
Aghnides and G. H.
P.
N.
the
same
sense.
also refer to
Aghnides defines it
principle that consists in recommending it
serves
evidence
useful
a
in
purpose,
revealed
the
a
as
a
thing because
although there is no express
sources
to
action.11 Bousquet's definition is
support such
follows:
as
"Istislah consists of discarding by exceptional disposition the rules deduced by qiyas in cases where the application of general rules would lead to illogical, unjust and undesirable resulsts".12
Joseph Schacht's treatment of maslahah is not much different istislah of
from as
a
istihsan
came
istislah
used
is
the
istislah.13
identical
Paret
istihsan, it
11
but
N.
P.
p.
or
described
rather a type
with
also
the
legal principles of
Roman
characterises
finds
former
the
re-emphasises that
Schacht
istislah
is
more
to
jus
honorarium.14
connected
be
with
limited and definite
Aghnides, Mohammedan Theories of Finance, 102
1^
G.H.Bousquet, 1947], p. 37 J.
Schacht,
Clarendon, 14
He
as
replaces a general principle such as "finding good",
1916],
12
writers.
by early Malik! scholars and which later
utilitum publicum which
R.
above
special form of analogy,
called
be
to
of
that
J.
Droit Musulman, [Alger: Maison
The Origins of Muhammadan Jurisprudence,
1959],
Schacht,
Precis ds
[London: Longman,
p.
du Livre,
[Oxford:
Ill
"Classicisme,
traditionalisme,
et
ankylose dans la loi
religieuse de 1' Islam"in Classicisme et declin culturel dan 1'histoire
de
1'Islam,
[ed]
Brunschvig et als,
222
[Paris: 1957],
p.
158
by
rather specific principle,
a
of
demand
the material
of
method
"according to the
Maslahah thus is
(maslahah)".
principle underlying istislah which is
reasoning.
a
In actual details where Paret traces
history of istislah, he specifically refers to
the
al-maslahah
This
is
al-mursalah,
than maslahah
rather
such.
as
why he finds nothing of much importance after
al-Ghazall to
welfare
human
such as
usul
theorized
had
are
confined
to
istislah.
about the
discussions
His of
references
al-maslahah
al-mursalah.15
Analysing the treatment of maslahah by modern Muslim scholars
such
criticised He
as
their
Muhammad •
use
argued that such
justified; been
an
*
maslahah
a
utilitarian
interpretation of maslahah
principle,
guide in the
a
reasoning by analogy rather than
Grunebaum,
Von
in
HouranI
A.
not
was
a
process
interest)
is unmistakably one point at which human
concluded that
permitted to impinge
istislah
on
(public
traditional
or
systematic considerations that would normally be viewed
15
Rudi
Islam,
Paret, p.
Albert
1stihsan and
Istislah,
185 HouranI,
op.
16
in his study of the concept of reason
ethics,
is
of
substitute for it".
in Muslim
"reason"
sense.
"for the traditional thought, maslahah had
subordinate
a
of
cAbduh and others,
cit.,
p.
234
223
in Shorter Encyclopaedia of
development.17
determining factors of sharc
the
as
Although all of the above opinions agree in
regarding maslahah and
that
needs,
as
a
principle that
yet according to the same writers, to
exceptional
cases
special form of analogy. The view of
in
maslahah
reason
studies
these
its function is
to the use of a
or
is
studied only al-maslahah al-mursalah
for such that
a
limited
they have
to the exclusion of
aspects of maslahah.
There
are,
however,
a
few studies which evince
integral approach to the problem of maslahah Among such studies, our
rigidity
suggests adaptability to changes based on human
restricted
other
removes
concept.
al-Buti
have
theory. E.
M.
such.
as
the following four are relevant to
point. G. F. HouranI has examined maslahah
ethical
an
H.
as
an
Kerr and Muhammad Sacid Ramadan
analyzed it in particular reference to legal
Tyan has studied it as a principle of
methodology.
Tyan describes maslahah as "social "to
utility" and "good", and has defined istislah
recognize
a
rule as
conceptions of istislah. 17
G.
E.
Ethics,
"general interest",
Von
Grunebaum,
Oriens,
vol.
15,
useful".18
He distinguishes two
In the original conception of
Concept
[1962],
and Function of Reason p.
1 ft °
in Islamic
15
E. Tyan, Methodoloqie et Sources du Droit en Islam, Islamica", vol. 10, [1959], p. 97
224
as
"Studia
istislah,
interests
the
(masalih)
were
divided into three
categories according to its recognition by the law, last
category being al-masalih al-mursalah.
the
The directing
principles in this kind of research consisted essentially in
considering the elements of social utility (maslahah)
and
of
suitability (munasabah). The speculation according
to
this
conception of istislah remains within the limits
of
law.
The
other
conception of istislah is
more
extensive.19 According to this conception of istislah it can
be
not
regulated by the precise texts of law,
employed not only in relation to matters which
those matters
regulations, over
which so
have
been
subjected to such
precise rules
or
over
conflicting
or
reasoning)
conformity with the objections of law, the
above-mentioned
contradicting
in the final analysis,
(the rules derived from this method of
with
but also in
that it be legitimate to make it prevail
regulations, provided that,
in
are
five
they
remain
i.e they accord
major interests viz.
religion, physical integrity, descendance, patrimony and mental
faculty.20
Tyan,
thus,
concluded that
istislah is
a
method of
interpreting the already existing rules by disengaging
19
20
E.
Tyan,
op.
cit.,
vol.
10,
p.
97
Ibid.
225
the
spirits of these rules from the letter;
and
extensions
and
correspond to the fundamental goals of the
G.
reached
are
Hourani
F.
which
command
studied maslahah
has
exceptions
practial utility
as
an
law.21 ethical
in medieval Islam, but his study bears
concept
significant connection with the present conception of
maslahah.22
in medieval
value
that
the
value are
observes
He
value
rational
that
existence;
real
theories
two
were
of objectivism, the
of
i.e
second theory of
subjectivism,
that the values
by the will of God. The theory of expounded by Muctazilah;
was
good
there
one,
theistic
of
determined
objectivism
Islam:
has
that
was
that
the idea of
called by them hasan or maslahah. The
was
theory of theistic subjectivism was maintained by the Ashcaris.
The
position of these two theories manifested
itself
the
field of
in
fiqh also. Jurists in the early
period used certain methods which did not correspond with "theistic
subjectivism". Principles such
istislah
tended
ethical
basis
of
these
unarticulated.
The
[that there
an
interest
21 9 9
See See
E. G.
is
F.
Muslim World,
op. —
Hourani,
vol.
and a real
L,
p.
justice
a
real public
(cadl), and that
98
"Two Theories
[1960],
remained
theory of rational good
objective good including
cit., -r
"objectivism". The
principles, however,
Muctazill
(maslahah)
Tyan,
towards
rather
istihsan and
as
pp.
of Value
269-278
226
in
Medieval
Islam",
they could be recognized by human reason]
provided
could have
basis to support the above principles. But the
a
theory of objectivism was superseded by theistic
subjectivism. Why? Hourani suggests that, apart from religious and political factors that prevented objectivism from being adopted by the lawyers, Muctazili First
it
Second, means
the
theory of objectivism had its own deficiencies. could
it
not
show
could not
how moral
judgment operates.
fill up the theoretical gap between
(moral and legal acts)
and the end
(the eternal
happiness, which is the happiness in the world and hereafter
On
for
the
Muslims).
other
hand,
the
theory of theistic
subjectivism corresponded with ShaficI and Zahiri views on
legal reasoning, which opposed the use of ra'y and any
judgment independent of the revelation. the
objetive value of idle fancy,
zann
Shaficis denied and hawa.
Theologically also the theory of objectivism appeared to curtail
the
omnipotence and omniscience of God, which the
theory of theistic subjectivism promoted.
Hourani's confined Because
to
of
study of maslahah,
the
this
consideration
choronologically,
early period of Islamic tradition. limitation
the
he
could
not
take
into
development in the treatment of
maglahah by later usuliyyln such as al-Shatibi. Hourani's
is
criticism of
In fact,
objectivism is mainly ethical. The
227
deficiencies
three
objective value of
maslahah
al-Buti
as
that
are a
maslahah
to
an
legal value. Muhammad Sacid Ramadan
Dawabit
al-Sharicah al-Islamiyyah at al-Azhar
f1
In his introduction to the published
University in 1965.
dissertation al-Buti
edition of
this
critics
Islam
of
as
found in al-Shatibi's conception
presented his doctoral dissertation,
al-maslahah
it.
not
ascribed
he
have
adopted
a
explains that the
new measure
to destroy
They are urging the Muslims to open the gate of
ijtihad, and in order to accomplish this end they refer to
the
of
Sharicah.
concept of maslahah as the fundamental principle
behind
this
Islam.
He
closed
and
to
the
is,
He
admits that
that
the
the
gate of ijtihad has never been
Lawgiver has given full consideration
principle of maslahah, but this principle has
a
detailed
maslahah,
a
number of
the qualifications
compares
this concept with the
concept of "utility" and "pleasure" Stuart
in
its
23
M.
S.
Mill
and
unqualified
R.
al-Buti,
al-Islamiyyah,
which the
jurists had suggested in the application of
principle. He also
of
qualifications.23
analysis of the etymology and concept of
he deduces
traditional this
real motive
proposal for ijtihad is the destruction of
always been restricted with After
convinced that
however,
J.
Bentham.
sense
He
in the philosophies
concludes
that
maslahah
is identical with the above
Dawabit al-maslahah
[Dimashq: Umawiyyah,
228
fT al-Sharicah
1966/67],
pp.
12
-
14
concepts which he considers
purely hedonistic. The
as
qualified concept of maslahah, however, contradistinguishes itself from utility and pleasure it
into
takes
consideration
characteristcs.
the
following three
it is not limited in this world
First,
only but equally includes the hereafter. Islamic
Second,
value
of
good is not material.
consideration
of
religion dominates other
considerations.24 other
qualifications
maslahah
Muslims
the
is
alone
criterion,
after
He
then
from
has
an
Third,
the
if
that
these
as
a
light post and
ijtihad such
as
a
that will descend upon
[To prove such terrifying results
brings the laws of Sharlcah out of the
that
fortress
of
into
texts
the
open,
exposed to desires and
arbitrary opinions that deceive (us) behind the and
maslahah
If
al-Buti's
becomes
consideration
of
name
manfacah.25
qualifications
expositions of maslahah and its
are
accepted, maslahah,
superfluous
as
of
by the Sharic
maslahah
a
as
a
matter of
legal concept.
The
(Lawgiver),
then
only means that maslahah is what the Sharic commands.
24 25
and
opening the gate of ijtihad it suffices to observe
evil
fact,
the
disregarded and the term
up
sides.
all
concluded
thus
are
held
as
Al-Butl, Ibid.,
p.
op.
cit.,
pp.
23
-
60
414
229
In
other
is
the
logical conclusion from al-Butl's view of
Islamic
law
according to which he rejects
between
this
This
words,
world
maslahah has
and
the
no
objective value.
hereafter.
He
a
distinction
does
not
mucamalat (transactions) from cibadat (acts of
separate
worship) but rather considers the former part of the latter.
He
does
ftuquq al-cibad. of
that
is
in
not
distinguish between huquq Allah and his conception of Islamic law is
In fact,
tacabbud
(mere obedience).
disagreement
even
concept of maslahah in
On all
these points he
with the jurists who employ the reference to human needs.
His
disagreement becomes particularly evident if his conclusions
are
compared with al-Shatibi's conception of
maslahah. ■
■
Al-Buti
has
dissertation, often out
out
the
of
but the
real
frequently referred to al-Shatibi in his these
references
context.
selective and
are
Al-Buti's
study fails to bring
significance of the concept of maslahah
mainly because he has not given full consideration to the proponents of this concept such as al-Shatibi.
The
same
maslahah,
deficiency is found in M.
which also offers
a
Kerr's study of
detailed analysis of
the
concept.
Examining Rashid Rida's legal doctrines, Kerr
observed
that
for
the
use
of
the
logical conclusion of Rida's arguments
maslahah
would
be
that
it
is
something
equal to natural law and that istislah does not depend on
230
and
texts
qiyas.
Such conclusions,
spelled out by Rida failure
the
to
himself.26
Why?
however,
are
not
According to Kerr,
spell out the full implications of the
argument has to do with theological nature of Islamic law which
influences
liberal
maslahah,
even
theoretically the most
principle of legal interpretation in Islamic
jurisprudence. The theological foundations of Islamic law insist
on
minimizing the part of human
formulation
of
law.27
Before
he
goes
into
law of
has the
general aspects of Islamic law which,
two
its
basis
will
of
differences will
jurisprudence, Kerr
affect the function of maslahah.
turn,
of
denied
In
freedom
intellectual "could
not
in
God.
between
God.
in the
detailed analysis of the
a
concept of maslahah in traditional clarifies
reason
revelation refers
Kerr
and to
Firstly,
thus the
is
an
Islamic expression
theological
Ashcaris and Muctazilahs about
contrast
in man's
the
to
acts.
in
the
Muctazilah, Ashcarl
Consequently,
the
spirit and method of Islamic jurisprudence
entirely
escape
the influence of the law's
theological underpinnings, which proclaimed that
reason
is
essentially irrelevant to the substance, determination
26 p. 27
See
M.
Kerr,
"Rashid Rida and
legal reform",
108 M.
Kerr,
Islamic Reform,
p.
56
231
Muslim World,
[1960],
and
second
The
emphasis itself
is
is
aspect that affected maslahah was
qiyas. According to Kerr,
on a
means
revelation.29 not
value
a
of
the
Kerr
finds
circumscribed and social
in
subordinate
cause
and effect.
the
consideration
under
judgment.30
munasabah.
the
to
timid
Further,
cIllah
the limitations of
Munasabah
text.
that
also confined to the use
are
munasabah
He
also
al-maslahah
discussed.
op.
to
(suitability)
is
a
conservative,
in God's commands.
analysis that
maslahah
the
as
divided maslahah sources,
al-mursalah
be
acknowledgement of the place of
indications of
treats
conformity to the
Kerr,
even
the final
thus
Kerr
31
of
matter
utility (maslahah)
concludes
30
cillah in jurisprudence is
term
only means that goes beyond the indications of the
texts.
29
sense
the
indication within
of
the
identify cillah
to
the method of qiyas
judgment, but only the attribute or the
gives rise to the means
the
protecting the authority of
fact,
In
characteristic
28
of
applied in usual not
the
principles".28
obligatory character of moral
one
on
In fact,
he
wunasabah is text.31 of the
the
aspects of
basis of
the
and thus it is only
which
really needs to be
According to him al-maslahah al-mursalah is a
cit.,
Ibid.,
p.
77
Ibid.,
p.
67
Ibid.,
p.
73
p.
60
232
form of
qiyas, because whereas qiyas looks for the
cillah, al-maslahah al-mursalah seeks hikmah, general cillah. based
on
more
concludes that because it is not
Kerr
specific cillah,
a
a
istislah has been
a
subsidiary and occasional technique of disputed
validity.32 In
the-final analysis Kerr
al-maslahah "The
for
al-mursalah.
comes
He
says
is therefore and since it is
maslahah
hikmah
to equate maslahah with
a
specific term
more
known
in
each
case
not
by direct indication in the textual source but by the jurist's own judgment, it is a maslahah
mursalah.33
with his
the
confines maslahah
also
Kerr
textual
discussion,
It
sources.
refers
is
such
to
to
its
correspondence
noteworthy that Kerr,
jurists
as
al-Ghazall and
al-Qurafl who viewed maslahah in the above terms. discusses he
chose
the as
views
of
Ibn
in
He also
Taymiyyah and Ibn Qayyim whom
opponents of the validity of maslahah as a
principle of legal interpretation. But these jurists, regarded maslahah
too, and
qiyas.
latter
33
See
are
Kerr,
Ibid.,
p.
subordinate to textual
sources
The consideration of maslahah according to
would prevail over
them,
32
as
harmful
op.
cit.,
to
p.
the text and qiyas only when the
obey.
76
81
233
has
Kerr
al-Shatibi,
not
into
taken
account
who favour maslahah
as
jurists such
as
independent legal
an
principle. The significance of studying al-Shatibi's views
is
evident
gives
a more
is
maslahah
of
al-Shatibi
from Kerr's
regretable. According to Kerr,
view
detail,
analysis of istislah
led
Kerr
to
outspoken in his defence of
comes
further
a
analysis of Rashid Rida,
study the concept of maslahah in
characterises al-Shatibi
It
which
integral picture of maslahah.
absence
The
whose
from Tyan's
"as
exceptionally
istislah.34
surprise that al-Shatibi
not
was
only disregarded but also suffered a sort of indifference when
Abu
probably following
Kerr,
sum
confused him with
al-Shatibi.36
al-Qasim
To
Paret,35
the present studies on maslahah generally
up,
present an unbalanced analysis of this concept. failed
3^
35
See
to
see
Kerr,
the
cit.,
op.
Paret,
op.
death,
which is
Firah al-Shatibi
520,
and F.
p.
significance of this principle as
107
cit., mentions 1194
R.
1390] b.
real
in fact
died.
Knenkow,
They have
See
as
the year
the year of al-Shatibi's [d. in which Abu al-Qasim Muhammad
Brockelmann
"Shafibi",
in E.I.I,
G.A.L
vol.
[Brill,
1943],
p.
337 - 338. Unfortunately, the same error is repeated in the heavily edited and revised version of Paret' s article in the Urdu Encyclopaedia of Islam. Urdu dairah macarif Islamiyyah [Lahore: Danishgah Punjab], vol. II, [pp. 586 - 591], p. 589 36
See
pp.
op. cit., p. 194, referring to Riga's mention of rightly quotes his year of death, but in his index on
Kerr,
al-Shatibi 247
IV,
identifies
him
as
Abu
al-Qasim b.
234
Firah al-Shatibi
p.
it
was
it
as
conceived and employed by an
independent principle,
which al-Tufi
evidences
of
has the
gone
those jurists who viewed
but not to the extent to
making it override all the
Sharlcah.
The
independence of the
concept of maslahah depends on the absence of the
validity of the textual evidence,
as
is the
case
with the
theory of al-masalih al-mursalah due to the fact that this
theory is part and parcel of the concept of
maglahah.
Hence,
in Islamic law it would
appropriate that there should be maslahah
or
al-mursalah from
the
no
seem more
consideration of
application of the theory of al-masalih with
the
presence
Qur'an and Sunnah
or
235
of textual evidence either from
ijmac.
Chapter 8 DIFE_RENCE BETWEEN THE THEORY OF
THE
AL-MASALIH THEORIES
Here
diference
it
between
in
al-mursalah
interest" Islamic
should be
PUBLIC
AND
THE
INTEREST
pointed out that there is of
nature
Islamic
law and
the
the
"public interest"
a
great
theory of al-masalih theories
of
"public
propounded by the Western writers.
as
law
the
AL-MURSALAH OF
In
is determined by the
highest degree in seeking the pleasures of God through fulfilling His commandments and performing virtuous deeds.
Any action which meets the approval and
satisfaction of is
that
the
will
of
God,
or
any
just and unbiased which could be applied
executed
to
named
public interest in Islamic law.
as
sublime so
is
the
in
case
people without any reservations could be
for
obtained
to
services.
with
the
In Islam the
specification of evil.
if the majority of people,
favour
enacted
Islamic
all
or
good lies with God and not with human beings and
instance, are
judgment
rule or
of
commandment
and
demand
its manufacture meet
This
law
wine
the
is
so
a
that
or
For
all the people,
policy money
or
rule be
could be
running costs of health and social
not
considered
as
a
public interest in
simply because it is opposed to the of
God
and
thus
against His will and
pleasure.
Whereas
the
nature
of
"public interest"
236
as
viewed by
the Western
writers
substantive
truths
refers or
are
must
however general
skill may
or
principles.
principles meet;
to
stands
for
body of
a
These truths or
not formal tests that any public policy
they may be and however much
be required to apply them in particular
cases,
they provide substantive guidance to the proper content of now
of and
public policy. "rules"
call
They are akin to what some philosophers as
opposed to "principles".
The problem
determining what is in the public interest is first foremost
body of
problem of attaining knowledge of this
a
truth. One who does not have such
supreme
knowledge could only stumble onto the right policy as a blind
man
might stumble onto the right road at
junction.1
a
Plato asserts:
"...the
Sun
visible,
not
only makes the things we see
but also brings them into existence and
gives them growth and nourishment; ... so with the objects of knowledge; these derive from the Good not only their power of being known, but their very being and reality...".
Plato's
dimension of
1
Plato,
[London: 2
Plato,
Memo
position minimizes the "contextual" the
97;
descriptive meaning of "public
Republic,
506,
Oxford University Press,
Republic,
508,
p.
translated by Francis M.
1941]
220
237
Cornford
3.
interest".
The
policy turns not
justifiability of upon
particular public
a
the relationship between that
policy and features peculiar to the problem circumstances
applied.
to
which
in which
or
the
or
policy is to be
It turns upon its relationship to
a
truth or a
body of truths which exists and has been discovered antecedent
to
circumstances, been
has
the
policy.
or
trained
of the problem,
emergence
know
to
It is the time that a statesman this
timeless
equips him to decide questions of view
raises
"Good"
common
which
concern.
This
questions about the relationship between the
particular policy enacted
which is held to be in the
now,
public interest, and the timeless truth
or
truths which
the
philosopher-king must know. Whether
we
ever
the
public interest in the
truths
say,
such
those
the
Good
interest"
public policy or
that
for is
some
to
body of substantive
a
denominates
Plato
in these circumstances, is
commendable to
as
of
sense
a
speak of
the
Good,
justifiable
we
do
or
because of its relationship
-
other
account
reason.
for
the
A
theory of
manner
concept functions must be able to account
3
in
"public
which
for the
the
manner
If the metaphysical and epistemological substructure of Plato's theory is set aside, it becomes clear that many theories of "public interest" in the West are closely akin to Plato's. Whenever it is argued that "public interest" stands for a body of substantive truths or proposition about public policy, the theory can be likened, however enormous the other differences may be, to Plato's theory. For this reason, conclusions reached about by Plato will prove to be applicable to a large number of theories as well
238
in which
we
abstract
metaphysical
justify this policy,
Plato's "common
conclusion
good"
are
truths.4
moral
or
is
not a set of highly
that
"public interest" and
concepts which would be appropriately
employed only by philosopher-kings in discussion with other
interest" and
If it is true that "public
philosopher-kings.
if
functions
to
and
commend
justify public policy,
only the philosopher-kings are capable of fully
understanding the justifications and commendations, follows
that
would
there
be
occasion
no
to
use
it
the
concepts outside of the circle of philosopher-kings.
and
Benn
Peters
substantive
a
is
which
one
not a goal of public
concept at all,
policy, but simply of
a
a
"public interest" is not
that
argue
procedural principle
number
conditions
of
public policy must satisfy. prescription "seek the
that
In their words:
a
justifiable
"...
is not of the
good"
common
requirement
or
the same
type as "maintain full employment". Whereas the latter counsel
a
We
may
of
it
or
different, because
4
former
the
is
one
of procedure.
have different ideas about the way to maintain
employment, with
substance,
is
it
Richard E.
we
are
clear what the world would be like
without
it.
"Seek
but
not does
because not
Flathman,
it
the
common
good"
is
is vague or more general,
describe
a
determinate
The Public Interest,
239
p.
54
but
goal at all.
is
It
certain that
instruction
an
to
approach policy-making in a
spirit, not to adopt
the
should
state
a
it
seek
determinate policy. is
to
say
To say
only that
political decisions should attend to the interests of its members
in
spirit of
a
Bertrand de
impartiality".5
Jouvenel
that the descriptive
argues
meaning of "common good" consists in what he calls "social
tie".6
freedom
or
in
favour
If
this
is
justified,
its
of
the
tie"
latter
else
or
-
we
Western
tie"
the
to
alter
the
Jouvenel defines the
may
be,
it does
highly pluralistic value system of
societies
will
must
broadly enough to win wide agreement about
importance. However important it
violence
conflict between
justice and the "social tie" must be decided
commendatory force of "common good". "social
any
to
that service of the "social
suggest
always take precedence.
Determination of the
descriptive meaning of "public interest" will involve examination of
substantive
general sort
norms,
and or
S.I.
B.
precepts a
-
of
a
highly
but its nature
single
norm,
value
precept.
State, 6
values,
meaning cannot be equated with
conclusions
These
5
-
considerations
de
Benn p.
and
Richard
lead
Peters,
to
the
theory of
"public
Social Principles and the Democratic
273
Jouvenel,
Chicago Press,
Sovereignty,
chap.
1957]
240
7
[Chicago, University of
interest"
argued by Peter Drucker. Drucker suggests that
"public interest" is purely "an organizing concept",
a
concept that provides a framework within which substantive another
one
to
values
and procedural
and
the
to
much the
recommend
to
values,
relevant
to
particular which
it provides
etc.,
To
this
"public interest"
used
in
can
this view has
does
not
supply
and contextual facts
an
heading
a
be brought
extent
as
Cohen
dual
a
interest"
peculiar
determining its descriptive meaning in
values,
Julius
"Public
Once again,
formal principles,
cases;
evaluated.
it.
related to
are
considerations
contextual
decisions.7
specific policy
norms
it
is
category under
together and
enlightening to think of
organizing concept. "public interest"
suggests that
sense;
or
in
first
logical
a
sense
-
is
...
i.e.,
to
explicate the meaning of the established basic values of the
community. Thus it would be in the public interest to
pursue the
meaning of in
used
be
certain goal because it would be consistent with
a
in
an
the
implement
a
basic community value.
instrumental
sense
i.e.,
-
public interest if its one
or
more
Second,
that
a
consequences
it is
policy would would
of the established basic values of
7
Drucler1 s view is reported in Wayne Leys and C. M. Perry, Philosophy and the Public Interest, [committee to Advance Original
Work
in
Philosophy, Chicago,
1959]
p.
241
31
community.8
the
Cohen
standards
recognizes that the general are
norms
and
to determine the descriptive
necessary
meaning of "public interest"; he also asserts that look
"community values" to find those
to
standards the
opposed, perhaps,
as
-
products of
and
to the laws of nature,
autonomous reason,
an
norms
we
the patterns of
or
history.
David
Whereas
Truman
"public interest" with
equates
social
unanimity
latter
prevails, dismisses "public interest" of
8.1
BASIS
AL-MASALIH INTEREST It
OF
DIFFERENCE
BETWEEN
AL-MURSALAH AND
could
theories
no
issue
which the
on
as
a
mere
politics.9
"datum"
THE
finding
and,
,
of
be
THE
THE
THEORY
THEORIES
OF
OF
PUBLIC
easly found that the nature of the
"public interest"
in the western framework of
thinking differs immensely vis-a-vis the nature of the theory of "al-masalih al-mursalah" the
basis
the
"givens of community values"
the
basis
of
of
in Islamic law. While
"public interest" in the western theories is
the
or
"the social ties",
theory of al-masalih al-mursalah is the
o
J.
Cohen,
Friedrich, Press,
view of
A Lawman's
editor,
1962,
pp.
the Public Interest,
The Public Interest,
[Nomos V]
in Carl
New York,
Atherton
155-6
Q
D.
Inc.,
Truman,
1951],
The Government pp.
50
-
51,
Process,
358
-
9
242
[New York:
Alfred A.
knopf,
"intentions
of
fundamentals
of
(mind),
reason
the
Lawgiver"
human
in preserving the five
existence
viz.
religion,
life,
offspring and material wealth.
The
meaning of "public interest" in Islam is therefore quite different West.
To
from
judge
requires
a
meaning of the
case
same
terminology in the
to legislate a rule in Islam
or
full knowledge of "Divine Guidance" simply
a God
because
the
(the Lawgiver)
alone deserves the right to
command: "...the
declares
command rests with the truth, and He
none
but
God;
He
is the best of
judges".10 It
follows
Islamic
therefore,
law
in
favour
that of
no
rule
judgment in
or
"public interest" could be
legislated without the spirit and appreciation of the divine
revelation
due
the
to
fact
that
everything rests with God alone and the
real
is the
so
truth
case
of
with
benefits.
real
should
It
the
frameworks
be
in
born
within which
mind
the
that
there
are
various
interpreters and propounders
working. Some of these frameworks take this
cosmos
as
are
the
only source of their knowledge while the others take the inside sources
is
10
well
as
of
6
the
outside
knowledge. As far
concerned,
Qur'an,
as
:
he bases
his
this
of
as
a
universe
as
the
mujtahid in Islamic law
interpretation within the
57
243
Islamic
inside of as
well
this
a
universe
rule
is
it
Thus or
a
its
knowledge from the
through observation and reasoning
from outside
as
revelation. refute
which obtains
framework
this a
universe
grave
by
means
of divine
mistake to venture to
judgment in Islamc law without the
light and knowledge of the divine guidance and basing the argument within the Western framework which obtains
knowledge from within this universe only. also
with
true
benefits.
(i) worldly and Islamic
accuse
are
Islam
The case is
benefits
are
two
fold:
(ii) hereafter. Those who condemn and law of
rigidity, uncouthness and cruelty
viewing the issue within the Western framework which
considers the
In
its
worldly benefits only and ignores and rules out
hereafter
together. As we have seen in our short
of the Western theories of "public interest" that
survey
their
all
basis
is
either
"community values"
or
"social ties"
only which have nothing to do with divine guidance or revelation.
It
goes
in
al-mursalah sense
due
of
to
the
the
without saying that the theory of al-masalih Islamic
law
is
like
the
theories
word
fact
that
develop into laws Western
theories.
or
there
not
are
no
principles
Theories
in
a
theory in the western of
"public interest",
theories
in
is the
case
as
Islam
are
Islam
which
with the
simply
expositions of interpreters elucidating their findings and
expressing their opinions. What all the theory of
al-masalih
al-mursalah
is
about
244
is
to
illustrate
the
attitude wisdom
in
of
a
the
mujtahid in the attestation of the divine
judgment of
legislation to the existence
on
ever
cases
and in the
process
of
changing circumstances of human
earth.
245
CONCLUSION
As
a
problem of legal theory the question of
adaptability to social change has been in
one
the
a
controversial
history of usul al-fiqh. The qadis in the
early courts of law, particularly in the Umayyad period, relied of
mostly
on
£a'y (consideration of opinion). The use
ra'y generally amounted to a general consideration of needs.
human
Ra'y was, thus
institution of
There
scholars These and
law
was,
who
a
method that kept the then
adaptable to social change.
however,
opposition to ra'y among the
specialized in hadith and in local practice. considered
scholars
therefore
the
use
unreliable method
of
of
ra'y as an arbitrary
making decision. The
diversity of laws that resulted from the exercise of ra'y by the qadis in various cities increased the number of opponents to the use of ra'y.
The
adhere as
strictly to the Qur'an and Sunnah (of the Prophet
well
any
general attitude of the hadith group was to
as
of
his
companions), and thus to reject
idea of the adaptability of Islamic law. This
attitude
was
distortion was,
that
of
however,
enormous
Islamic
motivated Islamic
by the religious apprehension of tradition
by the
use
of raVy.
It
impossible to maintain in the face of the
degree of social changes that had taken place in
society by the end of the eighth century.
246
literal
The
insufficient
provisions of the Qur'an and Sunnah accomodate
to
the
were
growing number of social
Even the method of extending these provisions by
changes.
accepting the ijmac of the past generation of scholars certain matters
failed
accomodate
the
extend
limited
the
to
meet
the
demand.
need
The
changes could not be denied,
on
to
but how to
legal provisions to adapt to these
changes?
need
The
method
for
the
this of the
it
the
Even among the
The religious and theological implications
attitude fear
done
adhered
to the
accepted the validity of the method of qiyas for
same
has
an answer
as
large number of scholars recognized this
a
purpose.
the
qiyas developed
adaptability of Islamic law.
hadith group, need and
of
to
the
the
hadith group,
arbitrariness
of
for
literal
of
for
however,
the
method
spelled out of
older
trend
of
rejecting anything beyond
provisions, opposed the
use
of qiyas and group.
Although initially a method of adaptability,
soon
was
to
ushered
the
as
ra'y. Consequently, the Zahirls who still
departed from the mainstream of the headlth)
reaction
qiyas
Zahiri
into
the
and
similar
criticism,
yet in
qiyas
was
protection of strict formality.
It
sought as a foolproof corrective of the method of
ra'y. To remove the fear of arbitrariness, qiyas connected
with
the
"sources"
appeal of this method
was
so
-
the
Qur'an and hadith.
strong that
247
was
The
it overshadowed
its
opposition
well
as
as
any
other methodological
development in Islamic legal theory.
Nevertheless,
the method of
swept away by qiyas. in
survived
istislah, derived
darurah,
from
considerable than
those
The
social
these
use
of
istihsan,
principles such
as
Islamic law
on
Incidentally,
-
probably
was
or
the basis of
a
even more
adapting legal doctrines to
changes, was itself hampered by at least two
derived
One
was
the
attitude
of
formalism which
explicitly from the original
or
words,
the basis
"cause"
attitude
the analogy must
(Qur'an,
sources
ijmac of the early generations). In other
Sunnah
a
of analogy must be explicitly expressed "reason"
for
the
discouraged the
use
of implicit
or
original ruling
as
a
original ruling. This cause
in the
basis of analogy. Also this attitude
required reference to specific original rulings, than
or
the intent and
"spirit" of the law
original rulings. The
the
rather
encouraging the search for, and the application of,
general principles in
a
number of other
required that in order to be conclusive,
as
rules
qiyas.
extending
limitations:
be
of ra'y
principles constitute the basis of
part of
based
not completely
was
Trends similar to the
munasabah etc.
qiyas which in
methods
form
the
ra'y
second
attitude
of
limitation, formalism,
which further
strengthened
stemmed from the theological
248
view of
the
attributes
problem of causality in reference to the of
God.
Ashcarls opposed the
The
causality behind God's actions and speech.
being
any
Thus,
since the command of God, have
cannot
qiyas
any
cause
seeking to appoint of
the
limitations that
the
To
-
major
i.e
"sources
formalism and the
on
Qur'an
or
not
linked
of
social
adopt methods such
and
a
as
legal evidence) Malikls
a
-
was
question of inference
the Zahirisrejected qiyas
on
its application.
with
or
certain
Nevertheless,
accept these changes
of
causality
problem of social change and
method of reasoning
Sunnah.
occurrence
of
The ShaficIs, who did not entirely reject
any
was
denial
law".
imposed limitations
rejected which
of
of the above
consequences
this dilemma,
escape
altogether. qiyas,
of His acts,
for the commands of God.
legal theory became essentially from
one
motive, the entire method of
or
causes
discussion
the
being
to be suspected as wrongly or arbitrarily
came
One
idea of there
changes,
any
They
form of qiyas
specific rulings in the they could not deny the
nor
could they refuse to
in practice. They had,
therefore,
to
istishab (presumption of continuity to
justify these changes. Hanafis
employed certain methods which did not
strictly adhere to the requirements of the theory of the sources
of
methods
are
law,
principally methods of qiyas.
istihsan
(to decide
249
Two such
in favour of something
is
which
considered
hasan,
by the jurist,
good,
against the conclusion that
have been reached by
may
qiyas), attributed to the Hanafls, decide
in
favour
of
on
another
istislah
basis). These methods
good.
in
have
their
law
order
In
render
to
sources.
not
this
of
human
into If
of
concept of maslahah suited to
the Shafici
which called
was
accorded with
maslahah
The
was
of
and
They
the
sources,
it
somehow justifiable as a
literarily derived from the
was
not
based
on
the
sources.
al-maslahah al-mursalah
al-maslahah
schools,
"source of law".
upon
only category which was questionable was
treatise.
discussion
jurists imposed
categories according to its basis
qiyas, when it The
the adaptability
to favour
changes.
disputable, since it
sources.
was
consideration
concept the approach of the
method
that
was
the
legal philosophy,
the
was
social
to
divided maslahah in
not
Invariably the underlying principle in the
Islamic
this
were
the concept of istihsan
Yet the
common
reasoning of these schools of
(to
than any alternative rule
accepted by all the schools. and
and istislah
something because it is considered
maglahah, more beneficial, decided
over
which
This is
category
the
core
of
Naturally for the Shafici jurists the only maslahah
that
al-mursalah. even
mattered
This
the Malikls
significant
view
came
a
to
discussion of
dominate other
eventually accepted it.
consequence
250
was
of the above
categorization of maslahah maslahah
as
that the original idea of
principal independent
a
disregarded, and istislah al-maglahah al-mursalah. studies
was
related
to
came
source
to be equated with
This is contrary to the recent
maslahah
as
have
we
most
before.
seen
beginnings unfolded its various aspects with
to be
the concept of maslahah with its simple
Eventually,
contact
came
tasawwuf,
theology,
as
it
came
into
logical analysis and,
significantly, with social and legal changes.
Theological determinism introduced by Ashcari jurists largely in the discussion of taklif
appears To
Ashcaris,
Muctazilah
taklif
is created by divine command. this
refuted
(obligation).
sense
of
The
theological determinism.
They differentiated between two senses of obligation: taklif
and
rational
(obligatoriness);
wujub
and
ethical,
In
other
it
only informs him.
of
good and bad,
words,
concluded
that
or
this
while the former command does
mere
the latter was
not
was
theological.
oblige
man
What obliges man is the knowledge of useful and harmful.
It might be
interpretation should have been
acceptable to the legal concept of obligation. were
based
certain on
complexities.
one's
First,
knowledge of utility,
it
may
lead to
and furthermore this criterion
absolute
is
things which elements
are
which
not
Yet there
if legal obligation is
arbitrariness, sense
to act;
in its
universally applicable. All the
apparently useful also have certain
are
harmful
either
251
to
the
person
concerned
or
others.
to
conform
Second,
the
to
rule
all
of
rules of
the
utility;
Sharicah do not
there are obvious
hardships and disadvantages in obeying them. Third, preserve
left
be
cannot
Still
of
system the decision of utility
a
individual.
the
to
another
taklif
and
order and
an
Who
should
between the
hard
latter.
and Not
devices
seeks
seeker,
formal
a
are
one
there is
to
the
this the
even
choice
a
to avoid harm to himself,
and since he is
legal;
a
he
utility
satisfied by escaping the full
implications of legal obligation. To Sufis, attitude,
to view
maslahah oriented person chooses
a
only that,
feels
he
Whenever
sense.
soft,
which
decide?
The consideration
seeking utility and avoiding harm leads
obligation in
then
aspect of the relationship of maslahah
brought forth by Sufis.
was
to
in its lawful aspects,
was
this
quite opposite
meaning of obligation towards God. They opposed
attitude
enemies
as
of
However,
such
Sharicah
can
huzuz
the an
of
nafs
traveller
(lower
on
the
soul)
who is one of
path of God.
interpretation of the application of the
only be regarded
as
appropriate to committed
Sufis.
Finally, treatment
status
for
of
it would the
the
seem
that the al-Shatibi's
concept of maslahah deserves a paramount
modern
understanding of maslahah.
growing needs of the Islamic society today to the
modern
advancement
of
science,
252
technology,
The
cope
with
economics,
politics, etc., demand examination of
the
a
thorough and comprehensive
concept in question.
Since the whole
development process of society depends mostly
on
the
principles which give guidance to do constructive and creative activities
in all
therefore
that these principles should be
necessary
determined
through
a
aspects of life,
it is
methodology which is competent and
capable of analysing and differentiating between good and bad,
benefit and injury,
civilized
constructive and destructive,
uncivilized
and
comprehension of maslahah
etc.
as
Al-Shatibi's
that which concerns the
subsistence
of
livelihood,
and the acquisition of what
intellectual sense;
human
life,
the completion of man's
qualities require of him,
is actually
"food for thought"
is emotional and in
an
obsolute
for a modern
mujtahid to exercise his independent thinking to discover such to
unrestricted
meet
the
interests
(masalih mursalah)
in order
ever-growing demands of the society.
253
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