Definition• Taken from the root word salaha (صلح) or

saluha which is to be good, to repair or to improve.

• Istislah (استصالح) is a method employed by the Muslim jurists to solve problems that find no clear answer in sacred religious text.

• Maslahah means benefit or interest.

• So Istislah involves the acquisition of benefit and repulsion of the harm to the public based on the benefit or interest that will be enjoyed by the public.– From many contexts – economy, legal,

procedures, medical etc.

Definition by al-Ghazali• Maslahah consists of considerations which secure

a benefit or prevent harm but are in the meantime, harmonious with the objectives of the Shari’ah مقاصد الشريعة ) ) - Protecting 5 ‘essential values: religion, life, intellect, lineage and property’

– The concept of maslahah has a very close relationship with maqasid al-shari’ah as MS are defined briefly as obtaining maslahah (benefit) and preventing mafsadah (evil)

• Any measures which secure these values falls within the scope of maslahah and anything violates them is called mafsadah(مفسدۃ). Preventing mafsadah is also maslahah.

Juristic views• Majority of ‘ulama:

- Istislah is a proper ground for legislation when a maslahah is identified

- Istislah is not a proof in respect of devotional matters (‘ibadah) and the specific injunctions of the Shari’ah (muqaddarat)- Hudud penalties

– Kaffarat– Entitlement in inheritance– Specified period of iddah– Number of raka’at in solat

TYPES OF MASLAHAHDHARURIYYAT

(ESSENTIAL)

TAHSINIYYAT(EMBELLISHMENT)

HAJIYYAT(COMPLEMENTARY)

Masalih on which the lives of the peopledepend and their neglect leads to total distruption and chaos. Consist of five essential maslahah namely: religion,life, intelect (mind), lineage and property.Must be promoted and protected

Supplementary to the five essential values whose neglect leads to hardship in the life of the community although not to its collapse.E.g the concession (رخصۃ)granted to the sick people, elderly and traveller not to observe fast and shorten the prayer.

Refers to interest whose realisationleads to improvement and the attainment of that which is desirable.E.g. the observance of cleanliness inpersonal appearance and ibadah.Avoiding extravagance in consumption

In general:

The embellishments refer to those interests that, if realized, would lead to refinement and perfection in the customs and conduct of people at all levels of achievement.

they are needed to alleviate hardship so that life may be free from distress and predicament.

MU’TABARAH MURSALAH

MULGHAH

From the viewpoint of the availability or otherwise of a textual authority in its favourMaslahah is divided into;

Maslahah Mu’tabarah• 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 (قطعى) and no longer open to debate.

• Shortening and combining of prayers or break fasting when travelling – parts of rukhsah – maslahah hajiyyah

• Polygamy?• Written agreement/contract?

Maslahah Mulghah• 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 nass in the Quran which assigns to the son double the portion of the daughter, the maslahah in this case is clearly nullified.

• Right to divorce– Some said it should also be given to the wife

because of maslahah– Is there a maslahah?– Maslahah mulghah.

Maslahah Mursalah• Maslahah which has been validated after the

divine revelation came to an end.• MM is unrestricted public interest in the sense of

it not having been regulated by the Lawgiver insofar 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.

Authority of MM• Surah al-Anbiya’ (21):107

– “ We have not sent you but a mercy for all creatures”– ( وما ارسلناك اال رحمة للعالمين )

• Surah al-Maidah : 6– “God never intends to impose hardship upon people.”– (… ما يريد الله ليجعل عليكم من حرج …)

• Hadith:– “ La dharar wa la dhirar fil Islam”

• “harm is neither inflicted nor tolerated in Islam”- The hadith encompasses the essence of maslahah in

all varieties

– 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.

• يتحمل الضرر الخاص لدفع الضرر العام ) )• Harm is eliminated to the extent that is possible

– الضرر يدفع بقدر االمكان ) )

• A greater harm is eliminated by means of a lesser harm

– يزال الضرر األشد بالضرر األخف ) )

• Neccessity makes the unlawful lawful– الضروريات تبيح المحظورات ) ) – 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.

• Sayyiditina Aishah said:• “The Prophet did not choose but the easier of the two

alternatives so long as it did not amount to a sin.”

• Practice of companions

• Examples of maslahah mursalah introduced by 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.

Other examples of MM• 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

• War on those who refused to pay zakat• Nomination of Umar to replace Abu Bakar

as caliph• 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 al-Jund) and Diwan al-Ata’ (sort like ministry of finance) but to distribute money to the public – established by Sayyidina Umar

• Administration of justice

Conditions of Maslahah• The maslahah must be genuine (haqiqiyyah)

– Protecting the faith – necessitates prevention of sedition (fitnah) and propagation of hearsay

– Protecting intellect – promotion of learning, providing education

– Protecting of lineage – creation of favourable environment for care and custody of children

– Protecting property – facilitating fair trade and lawful exchange of goods and services in the community.

– 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• day care centers at the government offices and agencies• regulation on wearing of helmets and fastening of seatbelt.

• The maslahah must be general (kulliyyah)– It secures benefit or prevent harms to the

people as a whole and not to a particular person or group of persons

• Acquisition of land for the purpose of development?• Minimum age for marriage

• Not in conflict with the nusus– ? - the legalisation of usury (riba’) on account of

the change in circumstances?– Is there any maslahah?– Conflict? Yes; it’s practice comes into conflict

with the clear nass of the Quran– وحرم لربى١ ٲحلولبيع١ للها

– Working as a bartender? Waiter/waitress serving khamr?

– Prostitution as an occupation?• Is there maslahah?

– Protecting life?

• Conflicting with nusus?

Continue…• Imam Malik added two other conditions:

1. Maslahah must be rational and acceptable to the people of sound intellect.

2. Must prevent or remove hardship from the people

Continue…• Al-Ghazali only permits maslahah al-

dharuriyyah and fulfilled three elements; darurah (necessity), qat'iyyah (absolute certainty) and kuliyyah (universality).

• Al-Ghazali illustrated a classical example from the law of war whereby some Muslims were kept captives and used as human shield.

• Muslim soldiers encounter predicament whether:– to attack unbelievers' army who were shielding

themselves with a group of Muslim captives; or – to refrain from attacking.

• The first course of action would kill the innocent Muslims whereas the second would give opportunity to the unbelievers to conquer more Muslim territory. In such a situation, al-Ghazali thought that the Muslim soldiers should attack the unbelievers in view that the action would preserve a more important maslahah. In addition, the attack is considered daruri because it protects Muslim life, qat'i as it the only method of saving Muslims and kulli because it takes consideration of the whole community (al-Ghazali, 1993, p. 177).– His view was rejected by majority of Muslim jurists

Al-Tufi’s view of maslahah al-mursalah

• A prominent Hanbali jurists- authorises recourse to maslahah with or without the existence of a nass.

• He argues that the hadith la dharar wa la dhirar enables the maslahah to take precedence over all other considerations.

Continue…• However, he precludes devotional matters,

specific injunction and prescribed penalties from the scope of maslahah.

• These matters can only be established by nass and ijma’

Continue…• As for transaction and temporal affairs- if

the text conform the maslahah of the people, they should be applied forthwith, but if they oppose, the maslahah should take precedence over them.

Continue…• In the areas of transactions and temporal

affairs including governmental affairs, maslahah constitutes the goals.

• When there is a conflict between a maslahah and nass, the hadith “la dharar wa la dhirar” must take priority.

Similarities of MM and Qiyas

• They are applicable to cases on which there is no clear ruling available in nusus or ijma’

• The benefit that is secured by recourse to them is based on probability

DifferencesMaslahah Mursalah

• the benefit which is sought through MM has no specific basis in the established law whether in favour or against.

Qiyas• The benefit which is

secured by Qiyas is founded in an indication from the Lawgiver and a specific ‘illah is identified to justify the analogy to the nass

Differences between MM and Istihsan

Maslahah Mursalah• The ruling which is based

on MM is original in the sense that it does not follow, or represent a departure from, an existing precedent

Istihsan• It only applies to cases on

which there is a precedent available (usually in the form of Qiyas), but Istihsan seeks a departure from it in favour of an alternative ruling in a form of a hidden analogy or an exception to a ruling of existing law

RELATIONSHIP BETWEEN QIYAS, ISTIHSAN AND ISTISLAH (MM)

Maslahah in modern time• 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• ISA?• Income tax• Insurance• Manufacturing contract

• Business contracts through modern telecommunication

• Payment by installment• Warranty on purchased goods• Permission from the first wife before a man

can marry a second or subsequent wife

ISSUES• Special school for pregnant students?• Baby hatch?

Opponents of Istislah• The Zahiri and some Shafi’e and Maliki

Jurists do not recognise maslahah as a proof in its own right.

• To them there is no maslahah outside the shariah because the shariah itself is all inclusive.

• The Hanafi and Shafie jurists adopted a relatively more flexible stance as they maintain that the masalih are either validated in the explicit nusus or indicated in the rationale (‘illah) of a given text, or even in the general objectives of the Lawgiver.

• Only in the presence of a textual indication can maslahah constitute a valid ground for legislation.

• Specifically Imam Shafie approves of maslahah only within the scope of qiyas; whereas Imam Abu Hanifah validates it as a variety of Istihsan.