Topic 5 (Maslahah Mursalah) PDF

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Topic 5: Maslahah Mursalah (Laws Based on Consideration of Public Interest)Definition Secondary source  Law that is not enacted in the primary sources, but is enacted for the consideration of public interest/ benefits of the people  Basically recognized by majority of scholars  Open to scholars ...

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UIL2712 - Islamic Law

Topic 5: Maslahah Mursalah (Laws Based on Consideration of Public Interest) Definition        

Secondary source Law that is not enacted in the primary sources, but is enacted for the consideration of public interest/ benefits of the people Basically recognized by majority of scholars Open to scholars to give solutions based on the interest of the people and to protect the aim of Syari’ah (Maqasid al-Syariah) Making a legal decision based on interest/ aim of Shariah Law is not regulated clearly in AQ/ Sunnah/ Qiyas Al-Ghazali: maslahah consists of considerations which secure a benefit or prevent a harm but which are, simultaneously, harmonious with the objectives of the Shariah Muslim scholars agreed that MM is a proper ground for legislation. They felt that they have the obligation to create law that suits the interest of the people. When the maslahah is identified and the mujtahid does not find an explicit ruling in the nusus, he must act in its pursuit by taking the necessary steps to secure it.

Proofs  AQ (2:185) “God never intends to impose hardship upon people.”  AQ (10:57) “O mankind, a direction has come to you from your Lord, it is a healing for the ailments in your hearts…” o God’s intention in revealing Shariah is to promote man’s welfare and to prevent corruption in the Earth  AQ (21:107) “We have sent you but a mercy for all creatures.” Sunnah:  “Harm is neither inflicted nor tolerated in Islam.”  “Muslims are bound by their stipulations unless it be a condition which turns a haram into halal or a halal into haram.” o Granting the Muslims the liberty to pursue their benefits and to commit themselves to that effect provided that this does not amount to a violation.  “The Prophet only chose the easier of two alternatives, so long as it did not amount to a sin.”  “God loves to see that His concessions are observed in the same way that His strict laws are obeyed.” Legal maxims:  related to the hadith and relevant as authority for maslahah mursalah- created by scholars

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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. Necessity makes the unlawful lawful. o E.g. Jurists validate demolition of an intervening house to prevent the spread of fire to adjacent building. o E.g. Validating the dumping of the cargo of an overloaded ship to prevent the danger to the life of its passenger.

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(a) The benefit must be genuine (haqiqiyyah). The law must be balance, not just a mere suspicious/ probability. Mere suspicion that certain legislation will be beneficial without ascertaining the necessary balance between its possible benefits and harms is not sufficient. Must be a reasonable in its aim to protect the rights of man/ human beings (maqasid al shariah) Benefit must be genuine as it is aims to achieve the 5 Maqasid al-Syariah. 1. Protecting the faith o Prevention of sedition and propagation of hearsay (Sedition Act, SOSMA), Safeguarding freedom of belief in accordance of AQ (2:256) by Art. 12(2) of FC 2. Protecting intellect o Promotion of learning, providing education, prevention of driving after drinking (Education Act, Transport Act) 3. Protecting of lineage o Registration of marriage, issuance of marriage certificate, creation of favorable environment for care and custody of children (Law Reform (Marriage and Divorce) Act) o Requirement of marriage (5 nikah)  Registration of marriage in the court and the issue of marriage certificate  Husband and wife/ legal guardian (father/brother/male descendant)/ witnesses/ contract (offer/acceptance)  Additional procedure/ legislation created for the benefits of people  If no proof – close proximity  Fulfilled requirements – registered – obtained certificate 4. Protecting property o Facilitating fair trade and lawful exchange of goods and services. (Consumer Protection law) o Recording of land transfer in the Registry departments - prevents false testimony and fraudulent land transfer. 5. Protecting life o Regulation of wearing of helmets and fastening of seatbelt (Transport Act), Freedom to work, freedom of speech, and freedom to travel (b) The benefit must be general (kulliyah)

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It aims to secures benefit, or prevents harm, to the people as a whole (everyone) It must contemplate a benefit to the largest possible number of people o It must not be enacted for individual or certain group of persons. The whole concept of maslahah derives its validity from the idea that it secures the welfare of the people at large. o E.g. Minimum age for marriage (16 y/o)  Law Reform Act/ Islamic Family Act – a person allowed to marry when 16 years old which is not stated in all primary sources  For the benefits of all people – centralized the min age of marriage (c) The benefit is not conflict with a principle or value which is upheld by the nass (text of AQ & Sunnah) or ijma’.

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The new principle formulated must not clash with a text or existing principles (nass) and propositions of Islamic law It must not attempt to alter the implication of a text.

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Any new law contradicted which are previously upheld by primary sources and such law x be enforced/ upheld. For example: o Legislation of usury on account of the change in circumstances: It’s practice comes into conflict with the clear nass of the Quran. o Khamr (alcohol/ wine drinking): A muslim working as bartender – permissible to serve (makruh/ x recommended) o Prostitution as an occupation (Conflict with protecting of lineage) o Banking/ finance impose loan interest (d) The benefit must be rational (ma’qulah)

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Reasonable/ acceptable to the people of sound intellect. It must be reasonable and among the purposed of Islamic law recognized by the syariah. (e) It must prevent and remove hardship from the people

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E.g. Abolish death penalty for drug trafficking;

(AQ 5:6)

Types of Maslahah • • •

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1. Maslahah al Mutabarah (Accredited Maslahah) Maslahah which the lawgiver (AQ / Sunnah) has expressly upheld and enacted a law for its realisation. The lawgiver had upheld that each offence constitutes proper ground for punishment. The validity of such maslahah is definitive and no longer open to debate. o AQ (5:38) Penalizing the thief (Protection of property) by defending the right of ownership o AQ (5:45) Law of retaliation “An eye for an eye, a tooth for a tooth.” (Protection of life) o AQ (5:90) Prohibition of wine drinking (Protection of mind) o AQ (24:2) Penalizing adultery and false accusation (Protection of lineage) o AQ (17:32) Don’t come near/ commit zinar (Protection of lineage) to prevent pregnancy o AQ (2:198/192) ‘eye for an eye, tooth for a tooth.’ (Protecting life) by enacting the law of retaliation. Law already been regulated clearly in primary source. Clearly upheld/ enacted which expressly mentioned in AQ/ Sunnah. At the same time enacted by the country. 2. Maslahah Mulgha (Invalidated Maslahah) Maslahah which the Lawgiver has nullified either explicitly or by indication that could be found in the Shariah. (The AQ/ Sunnah has denied/ nullified clear by indicating that the law could be upheld) Legislation in pursuant of such interests is invalid and no judicial decree may be issued in their favour. Attempt to change the clear ruling in AQ o AQ (4:11, 12, 176) Division of property as prescribed, which is the son gets double the portion of the daughter. (Maslahah attempts to give the son and daughter equal share) o Right to divorce (Maslahah attempts to give such right to the wife) 3. Maslahah Mursalah Maslahah that has been validated after the divine revelation came to an end. 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.

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It is unrestricted public interest in the sense of it not having been regulated by the AQ / Sunnah in so far as no textual authority can be found on its validity or otherwise. Such rulings are neither upheld nor nullified by the AQ / Sunnah. New kind of law/ cases which is not stated in AQ/ Sunnah. This kind of law regulated is permissible/ acceptable/ valid Examples of maslahah mursalah introduced by the Companions: 1. Introduction and the use of currency 2. Establishment of prison 3. Imposition of tax (kharaj) on agricultural lands in the conquered territories despite absence of textual authority. 4. The collection and compilation of al-Quran in a single volume 5. The introduction of land tax 6. The right to inheritance of a woman whose husband had divorced her during death sickness 7. 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. 8. Establishment of an organised military force department or defence ministry (Diwan al-Jund) and Diwan al-Ata’ (sort like ministry of finance) but to distribute money to the public – established by Sayyidina Umar 9. Administration of justice

Maslahah in modern time (Examples) 1. The law on road safety 2. The law on wearing helmet 3. The requirement on identification card 4. The HIV test before marriage 5. Needle and Syringe Exchange Programme 6. Pre-marital course 7. Marriage certificate 8. Wearing bangle / bracelet / necklace for male pilgrims 9. Separate coach / section for women in public transport 10. Islamic banking system and products 11. Increase in the price of cigarettes 12. ISA 13. Income tax 14. Insurance 15. Manufacturing contract 16. Business contracts through modern telecommunication 17. Payment by instalment 18. Warranty on purchased goods...