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Definition

Taken from the root word salaha ( )or


saluha which is to be good, to repair or to
improve.
Istislah ( )(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 Shariah
( ) Protecting 5 essential values: religion, life, intellect, lineage
and property

The concept of maslahah has a very close


relationship with maqasid al-shariah 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().
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 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.

Masalih on which the lives of the people


depend 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 ( )
granted to the sick people, elderly and
traveller not to observe fast and shorten
the prayer.
Refers to interest whose realisation
leads to improvement and the
attainment of that which is desirable.
E.g. the observance of cleanliness in
personal appearance and ibadah.
Avoiding extravagance in consumption

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)

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
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 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.

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
()

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

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.

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 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

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
(haqiqiyyah)

must

be

genuine

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
(kulliyyah)

must

be

general

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
development?
Minimum age for marriage

purpose

of

Not in conflict with the nusus


? - the legalisation of usury (riba) on
account of the change in circumstances?
Is there any maslahah?
Conflict? Yes; its practice comes into
conflict with the clear nass of the Quran

Working as a bartender? Waiter/waitress


serving khamr?
Prostitution as an occupation?
Is there maslahah?
Protecting life?

Conflicting with nusus?

Continue

Imam Malik
conditions:

added

two

other

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 aldharuriyyah
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-Tufis view of maslahah almursalah


A
prominent
Hanbali
juristsauthorises 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

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.

Differences between MM and


Istihsan
Maslahah Mursalah

Istihsan

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

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 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.

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.