13. MASLAHAH MURSALAH (CONSIDERATIONS OF PUBLIC INTEREST)
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. It is synonymous with istislah, and is occasionally referred to as maslahah mutlaqah on account of its being undefined by the established rules of the Shari’ah. For al-Ghazali, maslahah consists of considerations which secure a benefit or prevent a harm but which are, simultaneously, harmonious with the objectives (maqasid) of the Shari’ah. These objectives, the same author adds, consist of protecting the five `essential values’, namely religion, life, intellect, lineage and 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. More technically, mafsadah 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. The companions, for example, 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 favour of this.
The ulema are in agreement that istislah is not a proof in respect of devotional matters (`ibadat) and the specific injunctions of the Shari’ah (muqaddarat). Thus the nusus regarding the prescribed penalties (hudud) and penances (kaffarat), the fixed entitlements in inheritance (fara’id), the specified periods of `iddah which the divorced women must observe, and such other ahkam which are clear and decisive fall outside the scope of istislah. Since the precise values and causes of `ibadat cannot be ascertained by the human intellect, ijtihad, be it in the form of istislah, jurist, preference (istihsan) or qiyas, does not apply to them. Furthermore, with regard to ‘ibadat and other clear injunctions, the believer is duty-bound to follow them as they are. But outside these areas, the majority of ulema have validated reliance on istislah as a proof of Shari’ah in its own right.
Istislah derives its validity from the norm that the basic purpose of legislation (tashri`) in Islam is to secure the welfare of the people by promoting their benefit or by protecting them against harm. The ways and means which bring benefit to the people are virtually endless. The masalih (pl. of maslahah), in other words, can neither be enumerated nor predicted in advance as they change according to time and circumstance. To enact a law may be beneficial at one time and harmful at another, and even at one and the same time, it may be beneficial under certain conditions, but prove to be harmful in other circumstances. The ruler and the mujtahid must therefore be able to act in pursuit of the masalih as and when these present themselves.
The majority of ulema maintain that istislah is a proper ground for legislation. When the maslahah is identified and the mujtahid does not find an explicit ruling in the nusus, he must act in its pursuit by taking the necessary steps to secure it. This is justified by saying that God’s purpose in revealing the Shari’ah is to promote man’s welfare and to prevent corruption in the earth. This is, as al-Shatibi points out, the purport of the Qur’anic ayah in Sura al-Anbiya’ (21:107) where the purpose of the Prophethood of Muhammad is described in the following terms: `We have not sent you but as a mercy for all creatures.’ In another passage, the Qur’an describes itself, saying: `O mankind, a direction has come to you from your Lord, a healing for the ailments in your hearts […]’ (Yunus, 10:75). The message here transcends all barriers that divide humanity; none must stand in the way of seeking mercy and beneficence for human beings. Elsewhere, God describes His purpose in the revelation of religion, saying that it is not within His intentions to make religion a means of imposing hardship (al-Hajj, 22:78). This is confirmed elsewhere in sura al-Ma’idah (5:6) where we read, in more general terms, that `God never intends to impose hardship upon people.’
These are some of the Qur’anic objectives which grasp the essence of maslahah; they are permanent in character and would be frustrated if they were to be subjected to the kind of restrictions that the opponents of maslahah have proposed. We shall discuss the views of the opponents of maslahah in fuller detail; suffice it here to point out that the argument they have advanced amounts to a proposition that the general objectives of the Qur’an can only be implemented, in regard to particular cases, if there is another nass available in their support. This would seem to amount to an unwarranted restriction on the general objectives of the Lawgiver as these are expounded in the Qur’an.
The ulema have quoted a number of hadith which authorise acting upon maslahah, although none is in the nature of a clear nass on the subject. Particular attention is given, in this context, to the Hadith which provides that `No harm shall be inflicted or reciprocated to Islam’. The substance of this Hadith is upheld in a number of other ahadith, and it is argued that this Hadith encompasses the essence of maslahah in all of its varieties. Najm al- Din al-Tufi, a Hanbali jurist (d. 716 A.H.), has gone so far as to maintain, as we shall further elaborate, that this Hadith provides a decisive nass on istislah. The widow of the Prophet, A’ishah, is reported to have said that “the Prophet only chose the easier of two alternatives, so long as it did not amount to a sin.
According to another Hadith, the prophet is reported to have said that ‘Muslims are bound by their stipulations unless it be a condition which turns a haram into halal or a halal into a haram.’ This would seem to be granting Muslims the liberty to pursue their benefits and to commit themselves to that effect provided that this does not amount to a violation of the explicit commands and prohibitions of the Shari’ah. In yet another Hadith, the Prophet is quoted to have said: ‘God loves to see that His concessions (rukhas) are observed, just as He loves to see that His strict laws ( aza’im) are observed.’ ‘This would confirm the doctrine that no unnecessary rigour in the enforcement of the ahkam is recommended, and that the Muslims should avail themselves of the flexibility and concessions that the Lawgiver has granted them and utilise them in pursuit of their masalih. The rigorous approach that the Zahiri ulema have taken in regard to maslahah, as will later be discussed, tends to oppose the purport of this Hadith.
Technically, however, the concept of maslahah mursalah does not apply to the rulings of the Prophet. When there is a Prophetic ruling in favour of a maslahah, it becomes part of the established law, and hence no longer a maslahah mursalah. Historically, the notion of maslahah mursalah originated in the practice of the Companions. This is, of course, not to say that the Prophet did not rule in favour of maslahah, but merely to point out that 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 Caliph Abu Bakr, for example, collected and compiled the scattered records of the Qur’an in a single volume; he also waged war on those who refused to pay the zakah; and he nominated `Umar to succeed him. Similarly, `Umar b. al-Khattab held his officials accountable for the wealth they had accumulated in abuse of public office and expropriated such wealth. He also poured away milk to which water had been added as a punishment to deter dishonesty in trade. Furthermore, `Umar b. al-Khattab suspended the execution of the prescribed punishment for theft in a year of famine, and approved of the views of the Companions to execute a group of criminals for the murder of one person. These decisions were taken despite the clear ruling of the Qur’an concerning retaliation (qisas), which is `life for life’ and the Qur’anic text on the amputation of the hand, which is not qualified in any way whatsoever. But the Caliph Umar’s decision concerning qisas was based on the rationale that the lives of the people would be exposed to aggression if participants in murder were exempted from qisas. Public interest thus dictated the application of qisas for all who took part in murdering a single individual. Furthermore, the third Caliph, `Uthman, distributed the authenticated Qur’an and destroyed all the variant versions of the text. He also validated the right to inheritance of a woman whose husband had divorced her in order to be disinherited. The fourth Caliph, `Ali, is also on record as having held craftsmen and traders responsible for the loss of goods that were placed in then custody. This he considered to be for the maslahah of the people so that traders should take greater care in safeguarding people’s property. In a similar vein, the ulema of the various schools have validated the interdiction of the ignorant physician, the clowning mufti, and the bankrupt trickster, on grounds of preventing harm to the people. The Malikis have also authorised detention and ta`zir for want of evidence of a person who is accused of a crime In all these instances, the ulema have aimed at securing the maslahah mursalah by following a Shari’ah-oriented policy (siyasah shar’iyyah), which is largely concurrent with the dictates of maslahah. As Ibn al-Qayyim has observed, ‘siyasah shar’iyyah comprises all measures that bring the people close to well-being (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.’
The main support for istislah as a proof and basis of legislation (tashri) comes from Imam Malik, who has given the following reasons in its favour:
1. The Companions have validated it and have formulated the rules of Shari’ah on its basis.
2. When the maslahah is compatible with the objectives of the Lawgiver (maqasid al-shari`)or falls within the genus or category of what the Lawgiver has expressly validated, it must be upheld. For neglecting it under such circumstances is tantamount to neglecting the objectives of the Lawgiver, which is to be avoided. Hence maslahah as such is a norm of the Shari’ah in its own right; it is by no means extraneous to the Shari`ah but an integral pair of it.
3. When maslahah is of the genus of the approved masalih and is not upheld, the likely result would be to inflict hardship on the people, which must be prevented.
by M. H. Kamali.
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