Islamic Law I Chapter 5 Maslahah Mursalah PDF

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CHAP 5: MASLAHAH MURSALAH (CONSIDERATIONS OF PUBLIC INTEREST)INTRODUCTION Making consideration on matters which are of public interest(acquisition of good or removal of harm) for which there is no specific evidence or basis (in relation to it specifically) in the Syariah, but which in a general sens...

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CHAP 5: MASLAHAH MURSALAH (CONSIDERATIONS OF PUBLIC INTEREST) INTRODUCTION - Making consideration on matters which are of public interest(acquisition of good or removal of harm) for which there is no specific evidence or basis (in relation to it specifically) in the Syariah, but which in a general sense would agree with universal Syariah principles and goals. - Consideration is made of them in order to help protect and preserve the five necessities (life, religion, intellect, wealth and honour). - It is a consideration which is proper and harmonious to the objectives of the Lawgiver, it secures a benefit or prevents a harm, and the Syariah provides no indication as to its validity or otherwise. PROOF (HUJJAH) OF MM: - Majority of muslim scholars agreed that: MM is a proper ground for legislation – when the maslahah (objective) is identified & the scholars do not find an explicit ruling in the text of AQ and Sunnah, he must act in its pursuit by taking the necessary steps to secure it. Therefore it is justified by saying that God’s purpose in revealing the Syariah is to promote man’s welfare & to prevent corruption in the earth. -- Quran: • (Surah Al Anbiya’ 21: 107) - “We hv sent you but a mercy for all creatures” •

(Surah Yunus 10: 57) - “O mankind, a direction has come to you from your Lord, it is a healing for the ailments in your hearts.”

^ The msg for these 2 phrases here transcends all barriers that divide the humanity, none must stand on the way of seeking mercy & beneficience to human beings. •

God also described that His purpose in the revelation of religion of Islam is not a means of imposing hardship in (Surah al- Hajj 22:78), this may be confirmed in (Surah al- Maidah 5:6)/ (Surah Al Baqarah 2: 185), “God never intends to impose hardship upon ppl”

-- Sunnah/Hadeeth: • “ La dharar wa la dhirar fil Islam” - “harm is neither inflicted nor tolerated in Islam.” •

The widow of Prophet, Aishah: “The Prophet did not choose but the easier of the two alternatives so long as it did not amount to a sin.”

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“Muslims are bound by their stipulations unless it be a condition which turns a haram into halal or a halal into haram.” ^ based on these hadeeths seems to grant muslims the liberty to pursue their benefits & to commit themselves to that effect provided that this does not amt to a violation of the explicit commands & prohibitions of the Syariah.

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“God loves to see that His concessions (rukhas) are observed in the same way that His strict laws are obeyed.” ^ It is confirmed that no unnecessary rigour in the enforcement of the ahkam(rulings) is recommended, & that the Muslims should avail themselves of the flexibility & concessions that the Lawgiver has granted them & to utilize such in pursuit of the masalih.

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“Al-Mashaqqah tajlub Al-Taisir” - Hardship begets facility.

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“Al Umur bi Maqsidiha” - Matters are determined according to intentions. Legal maxims that are related to the hadith and relevant as authority for maslahah mursalah: • A specific harm is tolerated in order to prevent a more general one. • Harm is eliminated to the extent that is possible • A greater harm is eliminated by means of a lesser harm • Neccessity makes the unlawful lawful - Eg: jurists validate demolition of an intervening house to prevent the spread of fire to adjacent building - Validating the dumping of the cargo of an overloaded ship to prevent the danger to the life of its passengers.

-- View of Imam Malik for MM as a proof and basis of legislation: • The Companions has validated it & hv formulated the rules of Shariah on its basis. • When the MM is compatible with the objectives of the Law giver or that it falls within the genus or category of what the lawgiver has expressly validated, it must be upheld. • When MM is of the genus of the approved MM & it is not upheld, the likely result would be to inflict hardship on the ppl, which must be prevented. -- From all of these general sources, what is clear is that the concept of Maslaha is generally to propose a framework of rules guiding actions that are beneficial for public interest or actions that do much more good than harm to the greater public in areas of human endeavor that are not explicitly addressed by canonical sources. TYPES & SOURCES OF MASLAHAH MURSALAH  TYPES: 1. ESSENTIALS/NECESSITIES VALUE (DARURRIYAT) • Actions that are absolutely compulsory or essential. A neglect of the principle of Al Dharuriyat would result in chaos in the community • 5 essential value (al dharuriyyat al khamsah)s i.e. religion, life, intellect, lineage & property – must not only be promoted but also be protected against any real or expected threat which undermine their safety. To uphold the faith would thus require observance of the prescribed forms of ibadat(ritual), whereas the safety of life and intellect is secured by obtaining lawful means of sustenance as well as the enforcement of penalties which the Shariah has provided so as to protect them against destruction and loss. • Example: a legislation that prescribes a “death penalty” for premeditated murder. 2.

COMPLEMENTARY VALUE (HAJIYYAT) • The whole supplementary to the 5 essential values & they refer to interests whose neglect leads to hardship in the life of the community although not to its collapse. Thus in the area of ibadat the concessions that the Shariah has granted to the sick & to the traveler not to observe the fast, & shorten the solat,(prayer) are aimed a preventing hardship. • Example: concession of the sick from fasting, the exemption of menstruating and pregnant women from fasting and also the permission for travelers to shorten the obligatory prayers.

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EMBELLISHMENTS VALUE (TAHSINIYYAT) • Refers to interests who realization leads to improvement & the attainment of that which is desirable. • Thus the observance of cleanliness in personal appearance & ibadat, moral virtues, avoiding extravagance in consumption & moderation in the enforcement of penalties fall within the scope of tahsiniyyat.

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Example: building of grand mosques. Some of these edifices (Blue Mosque-Istanbul, Sheikh Zayed Grand Mosque –Abu Dhabi), are towering and serve to remind visitors of the grandness and greatness of Allah (SWT). However, should there have been dire need for survival in the countries where these mosques are built, having them would have been unnecessary.

 SOURCES: 1. Maslahah al Mu’tabarah(Accredited Maslahah)  Maslahah which the Law Giver has expressly upheld and enacted a law for its realisation.  Protecting life by enacting the law of retaliation or defending the right of ownership by penalising the thief or protecting the dignity and honour of the individual by penalising adultery and false accusation. (Maslahah dharuriyyah)  The lawgiver has upheld that each offence constitute proper ground for punishment in question.  The validity of maslahah in these cases is definitive and no longer open to debate.  Shortening and combining of prayers or break fasting when travelling – parts of rukhsah – maslahah hajiyyah  All Muslim scholars were unanimous in the agreement of laws enacted on the ground of Mu’utabarah and are the opinion that it should be recognized as a proper ground for legislation. 2. Maslahah Mulgha (Invalidated Maslahah)  It is a maslahah which the Lawgiver has nullified either explicitly or by indication that could be found in the shariah.  Ulama’ agree that legislation in pursuant of such interests is invalid and no judicial decree maybe issued in their favour  Example: An attempt to give the son and daughter equal share in inheritance on the assumption that this will secure a public interest.  Since there’s a clear verse in the Quran (Al- Nisa 4:11) which assigns to the son double the portion of the daughter, the maslahah in this case is clearly nullified.  Example: practicing usury in business, although usury had been a common practice among people, it is still considered invalid because its Maslahah goes against the values and principles of Shariah. 3. Maslahah Mursalah (Maslahah that has been validated after the divine revelation came to an end)  Maslahah which has been validated after the divine revelation came to an end. There is neither a text that validates it nor invalidates it.  MM is unrestricted public interest in the sense of it not having been regulated by the Lawgiver in so far as no textual authority can be found on its validity or otherwise.  The Lawgiver has neither upheld nor nullified the necessary legislation  More technically, MM is defined as a consideration which is proper and harmonious with the objectives of the Lawgiver; it secures a benefit and prevents a harm; and the Shariah provides no indication as to its validity or otherwise.  Examples of maslahah mursalah introduced by the Companions:  Introduction and the use of currency  Establishment of prison  Imposition of tax (kharaj) on agricultural lands in the conquered territories despite absence of textual authority.  The collection and compilation of al-Quran in a single volume  The introduction of land tax  The right to inheritance of a woman whose husband had divorced her during death sickness

 The ruling of Umar that his officials must be accountable for the wealth they had accumulated in abuse of public office and expropriation of such wealth  Establishment of an organised military force department or defence ministry (Diwan alJund) and Diwan al-Ata’ (sort like ministry of finance) but to distribute money to the public – established by Sayyidina Umar  Administration of justice * To summarise, when the Shariah provides an indication, whether direct/ implicit, on the validity of a maslahah, it falls under the accredited maslahah. The opposite of this is maslahah mulgha, which is overruled by a similar indication in this sources. The unrestricted maslahah applies to all other cases which’re neither validated not nullified by the Shariah. CONDITIONS OF MM •

The benefit must be genuine (haqiqiyyah). – must be a reasonable in its aim to protect the rights of man. – It should evidently be seen how this action helps in -- necessitates prevention of sedition (fitnah) and propagation of hearsay (Protecting the faith) -- Promotion of learning, providing education (Protecting intellect) -- Creation of favourable environment for care and custody of children (Protecting of lineage) -- facilitating fair trade and lawful exchange of goods and services in the community. (Protecting property) -- Safeguarding freedom of belief in accordance with (Surah Al-Baqarah 2:256), ‘there shall be no compulsion in religion’ – Examples: - Registration of marriage in the court and the issue of marriage certificate - The recording of land transfer in the Registry departments - prevents false testimony and fraudulent land transfer. - Consumer protection law - Regulation on wearing of helmets and fastening of seatbelt.

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The benefit must be general (kulliyah) -- It secures benefit, or prevents harm, to the ppl as a whole & not to a particular person or group of persons – Enact a hukm on ground of istislah must contemplate a benefit to the largest possible number of ppl. -- It is not maslahah if it secures the interest of a few individuals regardless of their social and political status. –The whole concept of maslahah derives its validity frm the idea that it secures the welfare of the ppl at large. -- Example: the consigning resourceful land to the public as opposed to individual ownership, imposing taxes and anti-dumping laws on importation of certain resources, products and services that could be effectively sourced locally, setting up adequate surveillance networks to keep crime in check and maintain law and order in the society. -- These actions are seen obviously to benefit a wider public as opposed to certain personal interests and so pursuing legislation in this regard are encouraged.

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The benefit is not conflict with a principle or value which is upheld by the nass (AQ & Sunnah) or ijma’. – has to make sure that the new principle formulated does not clash with a text or existing principles (nass) and propositions of Islamic law or attempt to alter the implication of a text. -- Example: actions related to usury, prostitution, working in bars, female photo advertising and nudity. Though these actions provide job opportunities and create new sources of revenue for some members of the public, they cannot be permitted on the basis of Maslaha, because they all

explicitly go against the values and teachings of the canonical sources. Legislation pursing these kind of interests are strongly discouraged.

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The benefit must be rational (ma’qulah) & acceptable to the ppl of sound intellect. -- This is in reality means that the norm it promotes must be among the purposed of Islamic law recognized by the syariah.

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It must prevent or remove hardship frm the ppl. (Surah Al- Maidah 5:6)

MASLAHAH IN MODERN TIMES  Examples:  The law on road safety  The law on wearing helmet  The requirement on identification card  The HIV test before marriage  Needle and Syringe Exchange Programme  Pre – marital course  Marriage certificate  wearing bangle/bracelet/neclace for male pilgrims  Separate coach/section for women in public transport  Islamic Banking system and products  Increase in the price of cigarettes  Income tax  Insurance  Manufacturing contract  Business contracts through modern telecommunication  Payment by installment  Warranty on purchased goods ……………………………………………………………………………………………………………………. TUTORIAL 7 1. What makes a legislation based on Maslahah al Mursalah valid? SUGGESTED ANSWER - Definition of MM, - Evidence on the validity of MM: PROOF (HUJJAH) OF MM (refer above) - To validate MM, few conditions to be observe (refer above) ……………………………………………………………………………………………………………............. 2. Maslahah Mursalah is employed in order to achieve the purposes of Islamic law or the maqasid shariah. Discuss the types of Maslahah Mursalah according to the source and the condition identified by the scholars in employing the above method. SUGGESTED ANSWER: Definition of MM Type of MM - Maslahah (Mu’tabarah) - Maslaha (Mulghah) - Maslaha (Mursalah)

Condition of MM...