13.1. TYPES OF MASLAHAH
The masalih in general are divided into three types, namely, the ‘essentials’ (daruriyyat), the ‘complementary’ (hajiyyat), and the ’embellishments’ (tahsiniyyat). The Shari’ah in all of its parts aims at the realisation of one or the other of these masalih. The `essential’ masalih are those on which the lives of people depend, and whose neglect leads to total disruption and chaos. 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. 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.
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. 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.
The ’embellishments’ (tahsiniyyat, also known as karahiyyah) denote interests whose realisation leads to improvement and the attainment of that which is desirable. 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.
It will be noted that the unrestricted maslahah does not represent a specific category of its own in the foregoing classification, for the obvious reason that it could fall into any of the three types of masalih. Should it be the case that the realisation of maslahah mursalah is sine qua non to an essential maslahah, then the former becomes a part of the latter. Likewise, if maslahah mursalah happens to be a means to attain one of the second classes of masalih, then it would itself fall into that category, and so on. Furthermore, we may briefly add here the point which al-Shatibi has discussed at some length, that the masalih are all relative (nibs, deaf), and as such, all the varieties of maslahah, including the essential masalih, partake in a measure of hardship and even mafsadah. Since there is no absolute maslahah as such, 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.
From the viewpoint of the availability or otherwise of a textual authority in its favour, maslahah is further divided into three types. First, there is maslahah which the Lawgiver has expressly upheld and enacted a law for its realisation. This is called al-maslahah al-mu’tabarah, or accredited maslahah, such as protecting life by enacting the law of retaliation (qisas), 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. The Lawgiver has, in other words, upheld that each of these offences constitute a proper ground (wasf munasib) for the punishment in question. The validity of maslahah in these cases is definitive and no longer open to debate. The ulema are in agreement that promoting and protecting such values constitutes a proper ground for legislation. The fact that the Lawgiver has upheld them is tantamount to His permission and approval of all measures, including legislation, that aim at their realisation.
But the masalih that have been validated after the divine revelation came to an end fall under the second class, namely the maslahah mursalah. Although this too consists of a proper attribute (wasf munasib) to justify the necessary legislation, but since the Lawgiver has neither upheld nor nullified it, it constitutes maslahah of the second rank. For example, in recent times, the maslahah which prompted legislation in many Muslim countries providing 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 Shari’ah. The law on these points has thus upheld the unrestricted maslahah; more specifically it is designed to prevent a mafsadah, which is the prevalence of perjury (shahadah al-zur) in the proof of these claims.
The third variety of maslahah is the discredited maslahah, or maslahah mulgha, which the Lawgiver has nullified either explicitly or by an indication that could be found in the Shari’ah. The ulema are in agreement that legislation in the pursuance of such interests is invalid and no judicial decree may be issued in their favour. An example of this would be 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 clearnass in the Qur’an (al-Nisa’, 4:11) which assigns to the son double the portion of the daughter, the apparent maslahah in this case is clearly nullified (mulgha).
To summarize: when the Shari’ah provides an indication, whether direct or implicit, on the validity of a maslahah, it falls under the accredited masalih. The opposite of this is maslahah mulgha, which is overruled by a similar indication in the sources. The unrestricted maslahah applies to all other cases which are neither validated nor nullified by the Shari’ah.
Conditions (Shurut) of Maslahah Mursalah
The following conditions must be fulfilled in order to validate reliance on maslahah mursalah. These conditions are designed so as to ensure that maslahah does not become an instrument of arbitrary desire or individual bias in legislation.
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. There must, in other words, be a reasonable probability that the benefits of enacting a hukm in the pursuance of maslahah outweigh the harms that might accrue from it. An example of a specious maslahah, according to Khallaf, would be to abolish the husband’s right of talaq by vesting it entirely in a court of law.
Genuine masalih are those which contemplate the protection of the five essential values noted above. Protecting the faith, for example, necessitates the prevention of sedition (fitnah) and of the propagation of heresy. It also means safeguarding freedom of belief in accordance with the Qur’anic principle that ‘there shall be no compulsion in religion’ (al-Baqarah, 2:256). Similarly, safeguarding the right to live includes protecting the means which facilitate an honourable life such as the freedom to work, freedom of speech, and freedom to travel. Protecting the intellect (`aql) necessitates the promotion of learning and safeguards against calamities which corrupt the individual and make him a burden to society. Furthermore, safeguarding the purity of lineage (nasl) entails protection of the family and creation of a favourable environment for the care and custody of children. And lastly, the protection of property requires defending the right of ownership. It also means facilitating fair trade and the lawful exchange of goods and services in the community.
2. The second condition is that 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. It is not maslahah if it secures the interest of a few individuals regardless of their social and political status. The whole concept of maslahah derives its validity from the idea that it secures the welfare of the people at large.
3. Lastly, 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. 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.
Imam Malik has added two other conditions to the foregoing, one of which is that the maslahah must be rational (ma`qulah) and acceptable to people of sound intellect. The other condition is that it must prevent or remove hardship from the people, which is the express purpose of the Qur’anic ayah in sura al-Ma’idah (5:6) quoted above.
Furthermore, according to al-Ghazali, maslahah, in order to be valid, must be essential (al-maslahah al-daruriyyah). To illustrate this, al-Ghazali gives the example of when unbelievers in the battlefield take a group of Muslims as hostages. If the situation is such that the safety of all the Muslims and their victory necessitates the death of the hostages, then al-Ghazali permits this in the name of al-maslahah al-daruriyyah. However the weakness of al-Ghazali’s argument appears to be that the intended maslahah in this example entails the killing of innocent Muslims, and the Shari’ah provides no indication to validate this.
Al-Tufi’s View of Maslahah Mursalah
Whereas the majority of jurists do not allow recourse to istislah in the presence of a textual ruling, a prominent Hanbali jurist, Najm al-Din al-Tufi, stands out for his view which authorises recourse to maslahah with or without the existence of nass. In a treatise entitled al-Masalih al-Mursalah, which is a commentary on the Hadith that `no harm shall be inflicted or reciprocated in Islam’, al-Tufi argues that this Hadith provides a clear nass in favour of maslahah. It enshrines the first and most important principle of Shari’ah and enables maslahah to take precedence over all other considerations. Al-Tufi precludes devotional matters, and specific injunctions such as the prescribed penalties, from the scope of maslahah. In regard to these matters, the law can only be established by the nass and ijma`. If the nass and ijma endorse one another on `ibadat, the proof is decisive and must be followed. Should there be a conflict of authority between the nass and ijma’, but it is possible to reconcile them without interfering with the integrity of either, this should be done. But if this is not possible, then ijma` should take priority over other indications.
As for transactions and temporal affairs (ahkam al-mu’amalat wa al-siyasiyyat al-dunyawiyyah), al-Tufi maintains that if the text and other proofs of Shari’ah happen to conform to the maslahah of the people in a particular case, they should be applied forthwith, but if they oppose it, then maslahah should take precedence over them. The conflict is really not between the nass and maslahah, but between one nass and another, the latter being the Hadith of la darar wa la dirar fi’l-islam. One must therefore not fail to act upon that text which materialises the maslahah. This process would amount to restricting the application of one nass by reason of another nass and not a suspension or abrogation thereof. It is a process of specification (takhsis) and explanation (bayan), just as the Sunnah is sometimes given preference over the Qur’an by way of clarifying the text of the Qur’an.
In the areas of transactions and governmental affairs, al-Tufi adds, maslahah constitutes the goal whereas the other proofs are like the means; the end must take precedence over the means. The rules of Shari’ah on these matters have been enacted in order to secure the masalih of the people, and therefore when there is a conflict between a maslahah and nass, the Hadith la darar wa la dirar clearly dictates that the former must take priority. In short, al-Tufis doctrine, as Mahmassani has observed, amounts to saying after each ruling of the text, ‘Provided public interest does not require otherwise.’
Differences between Istislah, Analogy, and Istihsan
In his effort to determine the shar`i ruling on a particular issue, the jurist must refer to the Qur’an, 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. However, if the solution arrived at through qiyas leads to hardship or unfair results, he may depart from it in favour of an alternative analogy in which the ‘illah, although less obvious, is conducive to obtaining a preferable solution. The alternative analogy is a preferable qiyas, or istihsan. In the event, however, that 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 prevents a harm that may otherwise ensue.
It thus appears that maslahah mursalah and qiyas have a feature in common in that both are applicable to cases in which there is no clear ruling available in the nusus or ijma’. They also resemble one another in the sense that the benefit that is secured by recourse to them is based on a probability, or zann, either in the form of a ‘illah in the case of qiyas, or of a rational consideration which secures a benefit in the case of maslahah mursalah. However, qiyas and maslahah differ from one another in certain respects. The benefit which is secured by qiyas is founded on an indication from the Lawgiver, and a specific ‘illah is identified to justify the analogy to the nass. But the benefit which is sought through maslahah mursalah has no specific basis in the established law, whether in favour or against. Maslahah mursalah in other words stands on its own justification, whereas qiyas is the extension of a ruling which already exists.
This explanation would also serve to clarify the main difference between maslahah and istihsan. A ruling which is based on maslahah mursalah is original in the sense that it does not follow, or represent a departure from, an existing precedent. As for istihsan, 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. This alternative may take the form of a hidden analogy (qiyas khafi), or of an exception to a ruling of the existing law, each representing a variation of istihsan.
The Polemics over Maslahah
The main point in the argument advanced by the opponents of istislah is that the Shari’ah takes full cognizance of all the masalih; it is all-inclusive and there is no maslahah outside the Shari’ah itself. This is the view of the Zahiris and some Shafi’is like al-Amidi, and the Maliki jurist Ibn al-Hajib, who do not recognise maslahah as a proof in its own right. They maintain that the masalih are all exclusively contained in the nusus. When the Shari’ah 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 Hanafis and most Shafi’is have on the other hand adopted a relatively more flexible stance, maintaining 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. The identification of the causes (`ilal) and objectives, according to this view, entails the kind of enquiry into the ‘illah that would be required in qiyas. The main difference between this view and that of the Zahiris is that it validates maslahah on the basis of the rationale and the objective of the Shari’ah even in the absence of a specific nass. Both these views are founded in the argument that if maslahah is not guided by the values upheld in the nusus there is a danger of confusing maslahah with arbitrary desires, which might lead to corruption and mafsadah. Experience has shown that this has frequently occurred at the behest of rulers and governors who have justified their personal wishes in the name of maslahah. The way to avoid this is indicated in the Qur’an, in sura al-Qiyamah (75:36) where we read: ‘Does man think that he has been left without guidance?’ The maslahah must therefore be guided by the values that the Lawgiver has upheld. Hence there is no maslahah unless it is corroborated by an indication in the Shari’ah. While commenting on istihsan, Imam Ghazali writes: ‘We know that the masalih must always follow the shar’i indications; istihsan is not guided by such indications and therefore amounts to no more than a whimsical opinion’. As for maslahah mursalah, al-Ghazali maintains that when it is not approved by the lawgiver, it is like istihsan. Al-Ghazali recognises the accredited maslahah, that is, when the maslahah is indicated in the nass. He also approves of maslahah mursalah when it is based in definite necessity, that is, maslahah daruriyyat. In the absence of a definite necessity, al-Ghazali maintains that maslahah is not valid. Consequently, al-Ghazali does not approve of the remaining two classes of the masalih, namely the complementary (hajiyyat), and the embellishments (tahsiniyyat). By making the stipulation that the maslahah, in order to be valid, must be founded in definite necessity, however, al-Ghazali is no longer speaking of maslahah mursalah, but of necessity (darurah), which is a different matter altogether and governed by different set of rules. It thus appears that this view only validates the type of maslahah which is referred to as maslahah mu’tabarah.
The opponents of istislah further add that to accept istislah as an independent proof of Shari`ah would lead to disparity, even chaos, in the ahkam. The halal and haram would be held to be applicable in some place or to some persons and not to others. This would not only violate the permanent and timeless validity of the Shari’ah but would open the door to corruption.
As already stated, the Hanafis and the Shafi`is do not accept istislah as an independent proof. Al-Shafi’i approves of maslahah only within the general scope of qiyas; whereas Abu Hanifah validates it as a variety of istihsan. This would explain why the Shafi`is and the Hanafis are both silent on the conditions of maslahah, as they treat the subject under qiyas and istihsan respectively. They have explained their position as follows: should there be an authority for maslahah in the nusus, that is, if maslahah is one of the accredited masalih, then it will automatically fall within the scope of qiyas. In the event where no such authority could be found in the nusus, it is maslahah mulgha and is of no account. But it would be incorrect to say that there is a category of maslahah beyond the scope of the nass and analogy to the nass. To maintain that maslahah mursalah is a proof would amount to saying that the nusus of the Qur’an and the Sunnah are incomplete.
The opponents of istislah have further argued that the Lawgiver has validated certain masalih and overruled others. In between there remain, the maslahah mursalah which belongs to neither. It is therefore equally open to the possibility of being regarded as valid (mu’tabarah) or invalid (mulgha). Since there is no certainty as to their validity, no legislation may be based on it, for law must be founded in certainty, not doubt.
In response to this, it is argued that the Lawgiver has proscribed certain masalih not because there is no benefit in them but mainly because of their conflict with other and superior masalih, or because they lead to greater evil. None of these considerations would apply to maslahah mursalah, for the benefit in it outweighs its possible harm. It should be borne in mind that the masalih which the Lawgiver has expressly overruled (i.e. masalih mulgha) are few compared to those which are upheld. When we have a case of masalih mursalah on which no clear authority may be found in the sources, and they appear to be beneficial, they are more likely to belong to the part which is more extensive and preponderant (kathir al-ghalib), not to that which is limited and rare (qalil al-nadir).
The Zahiris do not admit speculative evidence of any kind as a proof of Shari`ah. They have invalidated even qiyas, let alone maslahah, on the grounds that qiyas partakes in speculation. The rules of Shari’ah must be founded in certainty, and this is only true of the clear injunctions of the Qur’an, Sunnah and ijma’. Anything other than these is mere speculation, which should be renounced. As for the reports that the Companions issued fatwas on the basis of their own ra’y which might have partaken in maslahah, Ibn Hazm is categorical in saying that ‘these reports do not bind anyone’. Thus it would follow that the Zahiris do not accept maslahah mursalah, which they consider to be founded in personal opinion (ra’y).
The Malikis and the Hanbalis have, on the other hand, held that maslahah mursalah is authoritative and that all that is needed to validate action upon it is to fulfill the conditions which ensure its propriety. When these conditions are met, maslahah becomes an integral part of the objectives of the Lawgiver even in the absence of a particular nass. Ahmad b. Hanbal and his disciples are known to have based many of their fatwas on maslahah, which they have upheld as a proof of Shari’ah and an instrument of protecting the faith, securing justice, and preventing mafsadah. They have thus validated the death penalty for spies whose activity violates the maslahah of the Muslim community. The Hanbalis have also validated, on grounds of maslahah, the death penalty for propagators of heresy when protecting the maslahah of the community requires this. But in all this, the Hanbalis, like the Malikis, insist that the necessary conditions of maslahah must be fulfilled. Maslahah must pursue the valid objectives of theShari’ah and the dictates of sound intellect, acting upon which fulfils a useful purpose, or serves to prevent harm to the people. Some of the more far-reaching instances of maslahah in the Maliki doctrine may be summarised as follows:
1. Imam Malik validated the pledging of bay`ah (oath of allegiance) to the mafdul, that is the lesser of the two qualified candidates for the office of the Imam, so as to prevent disorder and chaos afflicting the life of the community.
2. When the Public Treasury (bayt al-mal) runs out of funds, the Imam may levy additional taxes on the wealthy so as to meet the urgent needs of the government without which injustice and sedition (fitnah) may become rampant.
3. In the event where all the means of earning a lawful living are made inaccessible to a Muslim,he is in a situation where he cannot escape to another place, and the only way for him to earn a living is to engage in unlawful occupations; he may do so but only to the extent that is necessary.
Conclusion
Despite their different approaches to maslahah, the leading ulema of the four Sunni schools are in agreement, in principle, that all genuine masalih which do not conflict with the objectives (maqasid) of the Lawgiver must be upheld. This is the conclusion that both Khallaf and Abu Zahrah have drawn from their investigations. The Shafi’i and Hanafi approach to maslahah is essentially the same as that of the Maliki and Hanbali schools, with the only difference being that the former have attempted to establish a common ground between maslahah and the qiyas witch has an identifiable `illah. Some Maliki jurists, including Shihab al-Din al-Qarafi have observed that all the jurists are essentially in agreement over the concept and validity of maslahah mursalah. They only differ on points of procedure: while some would adopt it directly, others would do so by bringing the maslahah within the purview of qiyas. But Imam Malik’s concept of maslahah is the most far-reaching of the four Sunni schools. Since maslahah must always be harmonious with the objectives of the Lawgiver, it is a norm by itself. Maslahah mursalah as such specifies the general (`Amm) of the Qur’an, just as the `Amm of the Qur’an may be specified by qiyas. In the event of conflict between a genuine maslahah and a solitary Hadith, the former takes priority over the latter.
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 Shari’ah would inevitably fall short of meeting the masalih of the community. To close the door of maslahah would be tantamount to enforcing stagnation and unnecessary restriction on the capacity of the Shari’ah to accommodate social change. ‘Abd al-Wahhab Khallaf is right in his assessment that any claim to the effect that the nusus of the Shari’ah are all-inclusive and cater for all eventualities is simply not true. The same author goes on to say: ‘There is no doubt that some of the masalih have neither been upheld nor indicated by the Shari’ah in specific terms.
As for the concern that the opponents of maslahah mursalah have expressed that validating this doctrine would enable arbitrary and self-seeking interests to find their way under the banner of maslahah, they only need to be reminded that a careful observance of the conditions that are attached to maslahah will ensure that only the genuine interests of the people which are in harmony with the objectives of the Shari’ah would qualify. This concern is admittedly valid, but one which cannot be confined to maslahah alone. Arbitrariness and the pursuit of self-seeking interests have never been totally eliminated in any society, under any legal system. It is a permanent threat which must be carefully checked and minimized to the extent that this is possible. But this very purpose will be defeated if legislation on grounds of istislah were to be denied validity. To combat the evil of an arbitrary indulgence which waves the banner of maslahah would surely have greater prospects of success if the mujtahid and the Imam were to be able to enact the necessary legislation on grounds of preventing harm to society. Consequently the argument that the opponents of maslahah have advanced would appear to be specious and self-defeating.
by M. H. Kamali.
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