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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 Shariah
( ) Protecting 5 essential values: religion, life, intellect, lineage
and property
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 Shariah
(muqaddarat)
- Hudud penalties
Kaffarat
Entitlement in inheritance
Specified period of iddah
Number of rakaat in solat
TYPES OF MASLAHAH
In general:
DHARURIYYAT
(ESSENTIAL)
HAJIYYAT
(COMPLEMENTAR
Y)
they are needed to alleviate hardship so that life may be free from distress and
predicament.
TAHSINIYYAT
(EMBELLISHMEN
T)
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.
From the viewpoint of the availability or otherwise of a textual authority in its favour
Maslahah is divided into;
MUTABARAH
MURSALAH
MULGHAH
Maslahah Mutabarah
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)
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 theres 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.
Authority of MM
Surah al-Anbiya (21):107
We have not sent you but a mercy for all creatures
()
Surah al-Maidah : 6
God never intends to impose hardship upon people.
()
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
Practice of companions
Other examples of MM
The collection and compilation of alQuran in a single volume
The introduction of land tax
The right to inheritance of a woman
whose husband had divorced her
during death sickness
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
(haqiqiyyah)
must
be
genuine
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
(kulliyyah)
must
be
general
purpose
of
Continue
Imam Malik
conditions:
added
two
other
Continue
Al-Ghazali only permits maslahah aldharuriyyah
and
fulfilled
three
elements;
darurah
(necessity),
qat'iyyah (absolute certainty) and
kuliyyah (universality).
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.
Differences
Qiyas
Maslahah Mursalah
the benefit which is The benefit which is
secured by Qiyas is
sought through MM
founded in an
has no specific
indication from the
basis in the
Lawgiver and a
established law
specific illah is
whether in favour
identified to justify the
analogy to the nass
or against.
Istihsan
ISSUES
Special school for pregnant students?
Baby hatch?
Opponents of Istislah
The Zahiri and some Shafie 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.