Maslahah Mursalah
Introduction
Defnition: •
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Root word salaha or saluha which is to be good, to repair or toimprove Maslahah means beneft or interest. Maslahah Mursalah (MM) it reers to unrestricted public interest in the sense o its not having been regulated by the aw giver insoar as no te!tual authority can be ound on its validity or otherwise
"l#$ha%ali Maslahah consists o considerations which secure a beneft or prevent harm but are in the meantime, harmonious with the ob&ectives o the 'hariah
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b&ective o 'hariah *rotecting + essential values: religion, lie,intellect, lineage and property
-he concept o maslahah has a very close relationship with maasid al#shariah as M' are defned brie/y as obtaining maslahah (beneft) and preventing masadah(evil).
Juristic View
Ma&ority o ulama:
0stislah is a proper ground or legislation when a maslahah is identifed. 1hen the maslahah is identifed and the mu&tahid does not fnd an e!plicit ruling in the nusus, he must act in its pursuit by ta2ing the necessary steps to secure it
0mam Mali2: -he
main support or istislah as a proo and basis o legislation 3. -he 4ompanions have validated it and have ormulated the rules o 'hariah on its basis. 5. 1hen the maslahah is compatible with the ob&ectives o the awgiver (maasid al#shari6) or alls within the genus or category o what the awgiver has e!pressly validated, it must be upheld. 7or neglecting it under such circumstances is tantamount to neglecting the ob&ectives o the awgiver, which is to be avoided. 8ence maslahah as such is a norm o the 'hari ah in its own right9 it is by no means e!traneous to the 'hari 6ah but an integral pair o it. . 1hen maslahah is o the genus o the approved masalih and is not upheld, the li2ely result would be to in/ict hardship on the people, which must be prevented.
"l#-uf: " prominent 8anbali &urists#
"uthorises alternative to maslahah with or without the e!istence o a nass. 8e argues that the hadith la dharar wa ladhirar enables the maslahah to ta2e precedence over all other considerations. 8owever, he precludes devotional matters, specifc in&unction and prescribed penalties rom
the scope o maslahah. -hese matters can only be established by nass and i&ma."s or transaction and temporal a;airs# i the te!t conorm the maslahah o the people, they should be applied orthwith, but i they oppose, the maslahah should ta2e precedence over them.
0stislah is not a proo in respect o devotional matters (ibadah) and the specifc in&unctions o the 'hariah
Proof of MM
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Surah Al Anbiya’ : 107
“We hv sent you but a mercy for all creatures”
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Surah Yunus : 7
“O mankind, a direction has come to you from your Lord, it is a healing for the ailments in your hearts..”
!he "essa#e for these $ %hrases here e&ceeds all barriers that di'ide the hu"anity( none "ust stand on the way of see)in# "ercy * bene+cence to hu"an bein#s,
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Surah Al Maidah : -
“God never intends to impose hardship upon ppl”
.od also described that /is %ur%ose in the re'elation of reli#ion of Isla" is not a "eans of i"%osin# hardshi%,
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Sunnah/adeeth :
“harm is neither inicted nor tolerated in slam.”
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Sunnah/adeeth :
“!he "rophet did not choose but the easier of the t#o alternatives so long as it did not amount to a sin.”
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Sunnah/adeeth :
“$uslims are bound by their stipulations unless it be a condition #hich turns a haram into halal or a halal into haram.”
=ased on these hadeeths seems to grant muslims the liberty to pursue their benefts > to commit themselves to that e;ect provided that this does not amount to a violation o the e!plicit commands > prohibitions o the 'yariah.
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Sunnah/adeeth :
“God loves to see that %is concessions &rukhas' are observed in the same #ay that %is strict la#s are obeyed.”
0t is confrmed that no unnecessary rigour in the enorcement o the ahkam&rulings' is recommended, > that the Muslims should avail themselves o the /e!ibility > concessions that the awgiver has granted them > to utili%e such in pursuit o the masalih.
!y%es of b2ecti'e of Shariah 1, 3SS34!IA5S4363SSI!I3S VA53 8 DARURRIYAT 9 •
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+ essential value (al dharuriyyat al khamsah)s i.e. religion, lie, intellect, lineage > property ? must not only be promoted but also be protected against any real or e!pected threat which undermine their saety. -o uphold the aith would thus reuire observance o the prescribed orms o ibadat(ritual), whereas the saety o lie and intellect is secured by obtaining lawul means o sustenance as well as the enorcement o penalties which the 'hariah has provided so as to protect them against destruction and loss.
6MP53M34!AY VA53 8HAJIYYAT 9 -he whole supplementary to the + essential values > they reer to interests whose neglect leads to hardship in the lie o the community although not to its collapse. -hus in the area o ibadat the concessions that the 'hariah has granted to the sic2 > to the traveler not to observe the ast, > shorten the solat , (prayer) are aimed a preventing hardship. •
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3M<355IS/M34!S VA53 8TAHSINIYYAT 9 reers to interests who reali%ation leads to improvement > the attainment o that which is desirable. -hus the observance o cleanliness in personal appearance > ibadat , moral virtues, avoiding e!travagance in consumption > moderation in the enorcement o penalties all within the scope o tahsiniyyat . •
6ondition of MM 1, -he maslahah must be genuine (haiiyyah)= as opposed to a alse maslahah (maslahah wahmiyyah), which is not a proper ground or legislation. " mere suspicion or specious con&ecture (tawahhum) that a certain legislation will be benefcial without ascertaining the necessary balance between its possible benefts and harms is not su@cient. -here must, in other words, be a reasonable probability that the benefts o enacting a hu2m in the pursuance o maslahah outweigh the harms that might accrue rom it.
"n e!ample o a specious maslahah "ccording to Ahalla, would be to abolish the husbands right o tala by vesting it entirely in a court o law.
$enuine masalih are those which contemplate protection o the fve essential values noted above.
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"n e!ample, protecting the aith necessitates the prevention o sedition (ftnah) and o the propagation o heresy.
"n e!ample, protecting religion 0t also means saeguarding reedom o belie in accordance with the Buranic principle that there shall be no compulsion in religion (al#=aarah, 5:5+C)
"n e!ample, protecting lie protecting the means which acilitate an honourable lie such as the reedom to wor2, reedom o speech, and reedom to travel.
"n e!ample, protecting intellect (6al) necessitates the promotion o learning and saeguards against calamities which corrupt the individual and ma2e him a burden to society.
"n e!ample, protecting lineage entails protection o the amily and creation o a avourable environment or the care and custody o children.
"n e!ample, protection o property reuires deending the right o ownership. 0t also means acilitating air trade and the lawul e!change o goods and services m the community.
5. Maslahah must be general (2ulliyyah)
0n that it secures beneft, or prevents harm, to the people as a whole and not to a particular person or group o persons. -his means that enacting a hu2m on grounds o istislah must contemplate a beneft yielded to the largest possible number o people. 0t is not maslahah i it secures the interest o a ew individuals regardless o their social and political status. -he whole concept o maslahah derives its validity rom the idea that it secures the welare o the people at large.
. Maslahah must not be in con/ict with a principle or value which is up held by the nass or i&ma6.
8ence the argument, or e!ample, that maslahah in modern times would reuire the legali%ation o usury (riba) on account o the change in the circumstances in which it is practiced, comes into con/ict with the clear nass o the Buran. -he view that riba in the way it is practiced in modern ban2ing does not all under the Buranic prohibition, as "bu ahrah points out, violates the nass and thereore negates the whole concept o maslahah.
E. 0mam Mali2 has added two other conditions
the maslahah must be rational (ma 6ulah) and acceptable to people o sound intellect. must prevent or remove hardship rom the people, which is the e!press purpose o the Buranic ayah in sura al# Maidah (+:C) uoted above.
+. al#$ha%ali:
maslahah, in order to be valid, must be essential(al# maslahah aldaruriyyah). -o illustrate this, al#$ha%ali gives the e!ample o when unbelievers in the battlefeld ta2e a group o Muslims as hostages. 0 the situation is such that the saety o all the Muslims and their victory necessitates the death o the hostages, then al#$ha%ali permits this in the name o al#maslahah al#daruriyyah. 8owever the wea2ness o al#$ha%alis argument appears to be that the intended maslahah in this e!ample entails the 2illing o innocent Muslims, and the 'hariah provides no indication to validate this
!y%es of Maslahah
Maslahah MutabarahF Maslahah which the aw $iver hase!pressly upheld and enacted a law or itsrealisation.? *rotecting lie by enacting the law o retaliationor deending the right o ownership bypenalising the thie or protecting the dignityand honour o the individual by penalisingadultery and alse accusation. (Maslahahdharuriyyah) F -he lawgiver has upheld that each o;enceconstitute proper ground or punishment inuestion.F -he validity o maslahah in these cases isdefnitive ( F 'hortening and combining o prayers orbrea2 asting when travelling ? parts oru2hsah ? maslahah ha&iyyahF *olygamyGF 1ritten agreementHcontractG Maslahah MulghahF 0t is a maslahah which the awgiver hasnullifed either e!plicitly or by indicationthat could be ound in the shariah.F Ilama agree that legislation in pursuant osuch interests is invalid and no &udicialdecree maybe issued in their avour F
F More technically, MM is defned as aconsideration which is proper andharmonious with the ob&ectives o theawgiver9 it secures a beneft and preventsa harm9 and the 'hariah provides noindication as to its validity or otherwise.
