CHAPTER XIII: MASLAHAH MURSALAH (Considerations of Public Interest)

Maslahah means benefit or interest; Masalih in plural form When it is qualified as maslahah mursalah , it refers to unrestricted public interest in the sense of not having been regulated by the lawgiver and no textual authority can be found on its validity or otherwise. Maslahah mursalah technically defined as a consideration which is proper and harmonious (wasf munasib mulaim) to the objectives of the Lawgiver. It secures a benefit or prevents a harm, and the Shariah provides no indication as to its validity or otherwise.

The notion of maslahah mursalah originates in the practice of the Companions, as a principle of jurisprudence, maslahah mursalah does not apply to the rulings of the Sunnah. The practice of the Companions, the Successors and the leading mujtahidun of the past tends to suggest that they enacted laws and took measures in pursuance of maslahah despite the lack of textual authority to validate it. The ulema have aimed at securing the maslahah mursalah by following a Shariah-oriented policy ( siyasah shariyyah ) Shariah-oriented policy ( siyasah shariyyah )comprises all measures that bring the people close to beneficence (salah) and move them further away from corruption (fasad) even if no authority is found for them in divine revelation and the Sunnah of the Prophet. *Support of Istislah as a proof and basis of legislation (tashri) from Imam Malik; following reasons: 1. that the Companions have validated it and have formulated the rules of Shariah on its basis 2. when the maslahah is compatible with the objectives of the Lawgiver or that it falls within the genus or category of what the Lawgiver has expressly validated, it must be upheld. 3. when maslahah is of the genus of the approved masalih and it is not upheld, the likely result would be to inflict hardship on the people, which must be prevented.

Example: Companions decided to issue currency, to establish prisons, and to impose tax (kharaj) on agricultural lands in the conquered territories despite the fact that no textual authority could be found in its favor. It is synonymous with istilah and is occasionally referred to as maslahah mutlaqah on account of its being undefined by the established rules of Shariah. To al-Ghazali, maslahah consists of considerations which secure a benefit or prevent a harm but are, in the meantime, harmonious with the objectives ( maqasid ) of the Shariah.
Objectives consist of protecting the five essential values: 1. Religion 2. Life 3. Intellect 4. Lineage 5. Property Any measure which secures these values falls within the scope of maslahah, and anything which violates them is mafsadah (evil), and preventing the latter is also maslahah.

TYPES OF MASLAHAH
Divided in three types:

Essentials masalih (daruriyyat ) are those on which the lives of the people depend and their neglect leads to total disruption and chaos. *Consist of the 5 essential values: 1. Religion 2. Life 3. Intellect 4. Lineage 5. Property

Istislah- derives its validity from the norm that the basic purpose of legislation (tashri) in Islam to secure the welfare of the people by promoting their benefits or by protecting them against harm. When there is a Prophetic ruling in favor of a maslahah, it becomes a part of the established law, hence no longer a maslahah mursalah

Complementary (hajiyyat) on the whole supplementary to the five essential values and they refer to interests whose neglect leads to hardship in the life of the community although not to its collapse.

Embellishments (tahsiniyyat)- also known as kamaliyyat refer to interests whose realization leads to improvement and the attainment of that which is desirable. The determination of value in any type of maslahah is based on the preponderance of benefit that accrues from it provided that the benefit in question is in harmony with the objectives of the Lawgiver.

nass in the Quran which assigns to the son double the portion of the daughter, the maslahah in this case is clearly nullified (malgha).

CONDITIONS (SHURUT) MASLAHAH MURSALAH:

OF

Must be fulfilled in order to validate the reliance on maslahah mursalah: 1. The maslahah must be genuine (haqiqiyyah), as opposed to a plausible maslahah (maslahah wahmiyyah), which is not a proper ground for legislation. (EXAMPLE of plausible: to abolish the husbands right of talaq by vesting it entirely into a court of law.)

From the viewpoint of the availability or

otherwise of a textual authority in its favor, maslahah is further divided into three types:

Accredited maslahah (al- maslahah almutabarah) - maslahah which the Lawgiver has expressly upheld and enacted a law for its realization. EXAMPLE: protecting life by enacting a law of retaliation (qisas) or defending the right of ownership by penalizing the thief. The fact that the Lawgiver has upheld them is tantamount to His permission and approval of all measures, including legislation, thataim at their realization. Maslahah mursalah masalih that have been validated after the divine revelation came to an end fall under the second class. Although this too consists of a proper attribute (wasf munasib) to justify the necessary legislation, but since the Lawgiver has neither upheld it nor nullified, it constitutes the maslahah of the second rank. (unrestricted maslahah) EXAMPLE: The maslahah which prompted legislation in many Muslim countries that the claim of marriage, or of ownership in real property, can only be proved by means of an official document has not been explicitly validated by the Shariah. Discredited maslahah ( maslahah malgha)- which the Lawgiver has nullified either explicitly or by indication that could be found in the Shariah. The ulema are in agreement that legislation in the pursuance of such interests is invalid and no judicial decree may be issued in their favor. EXAMPLE: an attempt to give the son and the daughter an equal share in inheritance on the assumption that this will secure a public interest., but since there is a clear

There must be a reasonable probability that the benefits of enacting a hukm in the pursuance of maslahah outweighs the harms that might accrue from it.

Genuine masalih- those which contemplate the protection of the five essential values. 2. That he maslahah must be general (kulliyyah) in that it secures benefit, or prevents harm, to the people as a whole and not to a particular person or group of persons. Enacting a hukm on grounds of istislah must contemplate a benefit to the largest possible number of people. It is not maslahah if it only secures the interest of a few people. The whole concept of maslahah derives its validity from the idea that it secures the welfare of the people at large.

3. That the maslahah is not in conflict with a

principle or value which is upheld by the nass or ijma. Additional: That the maslahah must be rational and acceptable to the people of sound intellect. It must prevent or remove hardship from the people, which is the express purpose of the Quran.

Al-Tufis View of Maslahah Mursalah:

A prominent Hanbali jurist, Najm al-Din al-Tufi Al-Tufi precludes devotional matters, and specific injunctions such as the prescribed penalties, from the scope of maslahah. As for transactions and temporal affairs (ahkam al-mu amalat wa al-siyasiyyat aldunyawiyyah) al-Tufi maitains that if the text

and other proofs of Shariah happen to conform to the maslahah of the people in a particular case, they should be applied forthwith, but if they oppose it, the maslahah should take precedence over them. In the areas if transactions and governmental affairs, al-Tufi adds, maslahah constitutes the goal whereas the other proof like the means; the end must take precedence over the means.

To close the door of maslahah would be tantamount to stagnation and unnecessary restrictions on the capacity of the Shariah to accommodate social change.

CHAPTER XV: (PRESUMPTION CONTINUITY)

ISTISHAB OF

Differences between istislah, Analogy and Istihsan:

To determine the Shariah ruling of a particular issue, the jurist must first refer to the Quran, the Sunnah and Ijma. In the absence of any ruling in these sources, he must attempt qiyas by identifying a common illah between a ruling of the text and the issue for which a solution is wanting. If the solution is arrived through qiyas leads to hardship or unfair results, he may depart from it in favor of an alternative analogy in ehich the illah is conducive to obtaining a preferable solution. The alternative analogy is a a preferable qiyas or istihsan. When no analogy can be applied, the jurist may resort to maslahah mursalah and formulate a ruling which, in his opinion, serves a useful purpose or it prevents a harm that may otherwise occur.
A ruling which is based on maslahah m,ursalah is oroginal in the snese that it does not follow, nor sdoes it represent a deparute from, an esixting precednet. As for istihsan, it only applies to cases in which there is a precedent available (usually in the form of qiyas) but isthisan seeks a departure from it in favor of an alternative ruling.

THE POLEMICS OVER MASLAHAH: When the Shariah is totally silent on a matter, it

is a sure sign that the maslahah in question is no more than a specious maslahah (maslahah wahmiyyah) which is not a valid ground for legislation. The maslahah must therefore be guided by the values that the Lawgiver has upheld. There is no maslahah unless it is corroborated by an indication in the Shariah.

CONCLUSION: All genuine masalih which do not conflict with

the objectives (maqasid) of the Lawgiver must be upheld. The changing conditions of life never cease to generate new interests. If legislation were to be confined to the values which the Lawgiver has expressly decreed, the Shariah is bound to fall short of meeting the masalih of the community.

Istishab- means escorting or companionship. A rational proof which may be employed in the absence of other indications. Technically, it denotes the facts, or rules of law and reason, whose existence or non-existence had been proven in the past are presumed to remain so for lack of evidence to establish any change. The technical meaning of Istishab relates to its literal meaning in the sense that the past accompanies the present without any interruption or change. To the Shafiis and Hanbalis, it denotes continuation of that which is proven and the negation of that which had not existed. It presumes continuation of both the positive and the negative until the contrary is established by evidence. EXAMPLE OF POSITIVE: Istishab requires that once a contract of sale, or of marriage is concluded, it is presumed to remain in force until there is a change. Thus the ownership of the purchaser, and the marital status of the spouses are presumed to continue until a transfer of ownership, or dissolution of marriage can be established by evidence. EXAMPLE OF NEGATIVE: A purchases a hunting dog from B with the proviso that it has been trained to hunt but then A claims that the dog is untrained. As claim will be acceptable under ishtishab unless there is evidence to the contrary. For the istishab maintains the natural state of things, which in the case of animals is the absence of training. Istishab only applies when no other evidence (dalil) is available, which is not the case when there is a clear text that could be invoked. Since istishab consists of a probability, that is the presumed continuity of the status quo ante, it is not a strong ground for the deduction of the rules of the Shariah. Istishab is supported by both SharaI and rational (aqli) evidences. Reason tells us that in Gods order of creation and in popular custom, it is normal to expect that pledges, contracts and laws will probably continue to remain operative until the contrary is proved. Ir is equallt normal to expect that things which had not existed will remain to be so until the contrary is proved.

The rules of Shariah continue to remain valid until there is a change in the law or in the subject to whch it is applied. EXAMPLE: The law has forbidden the wine, a ruling which will remain in force until there is a state of emergency or that the wine loses its intoxicating quality such as by being changed into vinegar.

VARIETIES OF ISTISHAB:
Divided into four types:

Presumption of original absence (istishab aladam al-asli)- means that a fact or rule of law which had not existed in the past is presumed to be non-existent until the contrary is proved. EXAMPLE: A child and an uneducated person are presumed to remain so until there is a change in their status by attaining majority or educational qualifications. Presumption of original presence (istishab al-wujud al-asli)takes for granted the presence or existence of that which is indicated by the law or reason. ERXAMPLE: A is known to be indebted to B, A is presumed such until it is prove that he has paid the debt or was acquitted of it. Istishab al-hukm or istishab- which presumes the continuity of the general rules and principles of the law. When there is a ruling in the law, whether prohibitory or permissive, it will be presumed to continue until the contrary is proved. But when there is no such ruling available recourse will be had to the principle of Ibahah which is the general norm of Shariah law concerning a matter that is deemed beneficial and free of evil consequences. Hence, when the law is silent on a matter and it is not repugnant to reason it will be presumed to be permissible. Isitshab al-wasf - or continuity of attributes; such as presuming clean water (purity being an attribute) to remain so until the contrary is established like a change of color or taste.

qualified in some way. Just as a general text remains general until it is specified, so is the validity of that text which is presumed to continue until it is abrogated. EXAMPLE: The Quranic rule which assigns to the male double share of the female in inheritance is general and would have remained so if it were not qualified by the Hadith that the killer does not inherit. Presumption of original freedom from liability (baraah al-dhimmah al-asliyyah) means freedom from obligations until the contrary is proved. No person may thus be compelled to perform any obligation unless the law requires so. EXAMPLE: No one is required to perform the hajj pilgrimage more than once in his lifetime nor to perform a sixth salah in the same day because the Shariah imposes no such liability. Permissibility is the original state of things (alasl fi al-ashyaal-ibahah) to recapitulate all materswhich the Shariah had not regulated to the contrary remain permissible. They would be presumed so unless the contrary is proved.

CONCLUSION: Isitshab is not an independent proof or a method of juristic deduction in its own right but mainly functions as a means of implementing an existing indication (dalil) whose validity and continued relevance is established by the rules of istishab. Istishab is applicable either in the absence of other proofs or as a means of establishing the relevance of applying an existing proof. Istishab is often described as a principle of evidence as it is mainly concerned with the establishment or rebuttal of facts and as such it is of greater relevance to the rules of evidence.

LEGAL MAXIMS FOUNDE IN ISRISHAB:

Certainty may not be disproved by doubt (alyaqin la yazul bil-shakk) EXAMPLE: When someone is known to be sane, he will be presumed such unitl it is established that he has become insane. The presumption can only be set aside with certainty not by a mere doubt. Presumption of generality until the general is subjected to limitation the general (amm) must therefore remain amm in its application until it is