Lecture Notes 8_usul Fiqh

GT20302 USUL FIQH/ISLAMIC JURISPRUDENCE Maslahah Mursalah (Considerations of Public Interest) Copyright Reserved@2008 Mohd Zulkifli Muhammad

1

Contents 1) Introduction 2) Types of Maslahah Mursalah 3) Conditions (Shurut) of Maslahah Mursalah

Copyright Reserved@2008 Mohd Zulkifli Muhammad

2

Introduction • Literally, maslahah means 'benefit' or `interest'. When it is qualified as maslahah mursalah, however, it refers to unrestricted public interest in the sense of its not having been regulated by the Law giver insofar as no textual authority can be found on its validity or otherwise.

Copyright Reserved@2008 Mohd Zulkifli Muhammad

3

Introduction • More technically, maslahah mursalah is defined as a consideration which is proper and harmonious (wasf munasib mula'im) with the objectives of the Lawgiver; it secures a benefit or prevents a harm; and the Shari'ah provides no indication as to its validity or otherwise. • Objectives consist of protecting the five `essential values', namely religion, life, intellect, lineage and property. Copyright Reserved@2008 Mohd Zulkifli Muhammad

4

Types of Maslahah Mursalah 1) The 'essentials' (daruriyyat): • The `essential' masalih are those on which the lives of people depend, and whose neglect leads to total disruption and chaos.

Copyright Reserved@2008 Mohd Zulkifli Muhammad

5

Types of Maslahah Mursalah • They consist of the five essential values (al-daruriyyat al-khamsah) namely religion, life, intellect, lineage and property. • These must not only be promoted but also protected against any real or unexpected threat which undermines their safety.

Copyright Reserved@2008 Mohd Zulkifli Muhammad

6

Types of Maslahah Mursalah • To uphold the faith would thus require observance of the prescribed forms of 'ibadat, whereas the safety of life and intellect is secured by obtaining lawful means of sustenance as well as the enforcement of penalties which the Shari'ah has provided so as to protect them against destruction and loss. Copyright Reserved@2008 Mohd Zulkifli Muhammad

7

Types of Maslahah Mursalah 2) The 'complementary' (hajiyyat): • The hajiyyat are on the whole supplementary to the five essential values, and refer to interests whose neglect leads to hardship in the life of the community although not to its collapse.

Copyright Reserved@2008 Mohd Zulkifli Muhammad

8

Types of Maslahah Mursalah • Thus in the area of a 'ibadat the concessions (rukhas) that the Shari`ah has granted to the sick and to the traveler, permitting them not to observe the fast, and to shorten the salah, are aimed at preventing hardship. • Similarly, the basic permissibility ('ibadah) regarding the enjoyment of victuals and hunting is complementary to the main objectives of protecting life and intellect. Copyright Reserved@2008 Mohd Zulkifli Muhammad

9

Types of Maslahah Mursalah 3) The `embellishments' (tahsiniyyat): • The `embellishments' (tahsiniyyat, also known as karahiyyah) denote interests whose realisation lead to improvement and the attainment of that which is desirable.

Copyright Reserved@2008 Mohd Zulkifli Muhammad

10

Types of Maslahah Mursalah • Thus the observance of cleanliness in personal appearance and 'ibadat, moral virtues, avoiding extravagance in consumption, and moderation in the enforcement of penalties fall within the scope of tahsiniyyat.

Copyright Reserved@2008 Mohd Zulkifli Muhammad

11

Conditions (Shurut) of Maslahah Mursalah 1) The maslahah must be genuine (haqiqiyyah), as opposed to a specious maslahah (maslahah wahmiyyah), which is not a proper ground for legislation. • A mere suspicion or specious conjecture (tawahhum) that a certain legislation will be beneficial without ascertaining the necessary balance between its possible benefits and harms is not sufficient.

Copyright Reserved@2008 Mohd Zulkifli Muhammad

12

Conditions (Shurut) of Maslahah Mursalah 2) The 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. • This means that enacting a hukm on grounds of istislah must contemplate a benefit yielded to the largest possible number of people. Copyright Reserved@2008 Mohd Zulkifli Muhammad

13

Conditions (Shurut) of Maslahah Mursalah 3) The maslahah must not be in conflict with a principle or value which is upheld by the nass or ijma`. • Hence the argument, for example, that maslahah in modern times would require the legalization of usury (riba) on account of the change in the circumstances in which it is practiced, comes into conflict with the clear nass of the Qur'an. Copyright Reserved@2008 Mohd Zulkifli Muhammad

14

Conditions (Shurut) of Maslahah Mursalah • The view that riba in the way it is practiced in modern banking does not fall under the Qur'anic prohibition, as Abu Zahrah points out, violates the nass and therefore negates the whole concept of maslahah.

Copyright Reserved@2008 Mohd Zulkifli Muhammad

15

WALLAHU ’ALAM THANK YOU VERY MUCH FOR YOUR ATTENTION Copyright Reserved@2008 Mohd Zulkifli Muhammad

16