4 3 2 1 ha and benefits of principles applicable for unifyingeveryone in every age to safeguard their welfare. sets Sharī῾ah The locations. to the creation’s perception of benefit and harm, as they vary between individuals and regional Sh of scope the within simultaneously harmonious with the objectives of the Sharī῾ah , namely the the five essentials, fall Ghazāli, For Maslaha.” intellect, life, progeny and wealth. So all that which religion, entails in preserving these five essentials is known of to be preservation are which Sharī῾ah; the of objectives the preserving w what Relatively, objective. their attaining for interest their and creation the of objectives the with accordance in harm deferring and benefit procuring “In principle it is an expression of procuring benefit or deferring harm. By this we do not mean follow is authority is found to either validate or invalidate it. used in conjunction with sense, this In ‘interest’. Maslaha Definition Law. Islamic Islām. to essay,of this mainlyrefer Sharī῾ahwill includes Throughout many branches given to it. It must be made clear th at this point that of the term Sharī῾aheach is an ainclusive status term which the of discover to seek polemics and jurist the legal the explore amongst will essay the Thereafter it. employing for Maslaha; on light shed will of status silent about it. What is t newly emerging authority cases has its been clearly reason, expressed by this some scholars For whilst others proofs. have remained rational of forms other is the of principles Islamic generalLaw the through case legal particular that of ruling legal exercise the to determine endeavour must jurist a result, a As Sunnah. and Qur'ān the in expressed clearly are cases detailed all not Nevertheless, case. legal any to answers for seeking jurist legal a for Law Islamic of sources fundamental the are Sunnah and Qur'ān The Introduction

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THE INSTITUTE FOR THE REVIVAL OF TRADITIONAL ISLAMIC SCIENCES the Sharī῾ah promotes unity and harmony in the society. In following those universal principles, it prevents discord and most importantly, exploitation of benefit and harm for the individual’s interest as opposed to the society at large.

Apart from Ghazāli, other scholars have contributed their discussion and thoughts on the concept of Maslaha, for instance Ibn Taymiyyah, a renowned Hanbali jurist and thinker. A general understanding of Ibn Taymiyyah’s concept indicates that though Maslaha cannot be rejected entirely, it should not be used as an independent source. 5 He asserts that historically, scholars failed to exercise precaution in this matter, eventually ended up prohibiting or permitting things of their own accord without realising it. He postulates that Maslaha is restricted to procuring benefit and deferring harm and does not recognise any other classifications apart from this.6 He further argues that though the Sharī῾ah does not overlook Istislah altogether, human intellect cannot encompass all types of Maslaha in the sources. In support of this, he presents some examples to explain the inability for humans to distinguish between Maslaha and Mafsadah and what the Sharī῾ah says otherwise.7

Distinction between Qiyās, Istihsān and Maslaha

In view of both the aforementioned jurists, it is the Lawgiver ultimately who determines benefit and harm for the creation. Therefore indicating that exercising Maslaha in legal matters is warranted only if it conforms to the general norms of the Sharī῾ah. What follows from this discussion is that how does it differ from other speculative evidences such as Qiyās and Istihsān?

Initially when determining a Shar’i (legal) ruling on a particular issue, the jurist conducts a thorough search in the textual sources; Qur'ān, Sunnah and then Ijmā; a unanimous agreement of the Muslim jurists through a collective ijtihād. In the absence of a clear ruling in any of the above sources, he subsequently resorts to Qiyās by identifying a common underlying illah existing between the text and the particular case in question and then applies the ruling accordingly. In the advent where applying the illah would potentially lead to difficulty or an unfavourable result, he may employ an alternative analogy conducive to a favourable solution. This recourse is known as Istihsān (juristic preference). However, if in such case a common underlying illah is not identifiable, the jurist will then formulate a ruling through Maslaha.8

The common features found in both Qiyās and Maslaha is that both serve as a valid recourse where no clear ruling is found in the text or Ijma. Both resemble one another in the sense that the outcome of their ruling is zann (speculation). They differ however to some degree that in Qiyās, an indication of an illah is found in the text whereas Maslaha no illah is identified nor any established law is found either affirming or disapproving of it. Rather, a ruling is determined based on the general understanding of the aims of the Sharī῾ah.9 Some have also stated the same differences with respect to Istihsān and Maslaha. Istihsān seeks to depart from the apparent Qiyās for an alternative solution. But this alternative may take form in many ways such as dharoorah (necessity), in that to extenuate a ruling to remove hardship which might

5 Masud, Shātibi’s philosophy of Islamic Law, p. 148 6 Shamsuddin Ibn Taymiyyah, Al-Majmu’ al-Fatāwa, p. 344-345 vol 11 7 ibid 8 Sābuni, Madkhal, p. 135, Kamali, Principles of Islamic Jurisprudence, p. 361 9 ibid

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THE INSTITUTE FOR THE REVIVAL OF TRADITIONAL ISLAMIC SCIENCES occur if strict Qiyās was applied. This feature, removal of hardship is also found in Maslaha.10 So arguably, Istihsān is much closer to Maslaha than Qiyās itself.

Classifications of Maslaha

In some literatures, one jurist views of the classifications of Maslaha differs from the other depending on the respective jurist’s approach to it. For instance, Ibn Taymiyyah does not consider any further classifications apart from benefit and harm. Reason being is to exercise precaution in the matter so that scholars do not exploit it. On the contrary, al-Shātibi presents two classification in the essential category of Maslaha; first those which seek the worldly objectives, for instance the five essentials and the second, those seek the objective of the Hereafter, namely success and admission into Paradise.11 Clearly in al-Shātibi’s classification, securing the worldly Maslaha ultimately paves the way to securing the Maslaha in the Hereafter; attaining paradise. In the worldly perspective there are two main approaches;

First approach based on actions. 1. Dharuriyyāt – That which aims to preserve the five major essentials. Laws have been constructed and legislated around preserving those essentials. Any shortcomings will imminently lead the essentials at stake. They are namely; Religion, life, progeny, intellect and wealth. 2. Hājiyyāt – A degree below the dharuriyyāt and its shortcoming eventually leads to difficulty in fulfilling the above five essential but not necessarily jeopardising them. The purpose behind the legislation of such laws is uplifting constrain to allow the legally commissioned person (mukallaf) to fulfil his duty towards his Creator. Examples of this type are the concessions in the five prayers: sitting if unable to stand and offering of two units of every four units of obligatory prayer for a traveller, and so forth. 3. Tahsiniyyāt – The embellishment acts whereby the shortcomings of which shall neither jeopardise nor constrain the above five essentials, rather they serve as a complementary to them. Ignoring such laws ensue one to be blameworthy as they do not befit the character of a true believer. Examples of such natures are the laws of purity, dress codes, moral values, cleanliness and ritual bath, eating and drinking etiquettes and so forth.12

The second classification is the legitimacy based approach. 1. Al-Maslaha al-Mu’tabara (accredited) – That form of Maslaha which the Sharī῾ah recognises and promotes. Such category has been supported by clear evidences from the text. Thus, given the name mu῾tabara which means recognised and accepted by the source. 2. Al-Maslaha al-Mulghāt (rejected) – which is a form of benefit that not only does the Sharī῾ah support it but has rejected it with clear evidences. The name given to this type is Mulghāt which means rejected or unacceptable by the source.

10 ibid 11 Abū Ishāq Al-Shātibi, al-Muwāfaqāt, p.7 vol 2 12 Al-Būti, Zawābitul Maslaha fi al-Sharī'at al-Islamiyyah p. 119-121

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THE INSTITUTE FOR THE REVIVAL OF TRADITIONAL ISLAMIC SCIENCES 3. Al-Maslaha al-Mursala (unrestricted) – Commonly referred to as unrestricted interest. The type of which there is no specific evidence of approving or disapproving it. However, a meticulous collective study of the general principles of the Sharī῾ah will determine its validity and invalidity. The discourse up for discussing here is the legal authority of the third type since the first two are non-disputed categories.

Legitimacy of Maslaha Mursalah

Maslaha Mursalah has gained its recognition through an inductive study of the legal rulings found in the Shar’i sources catering for the welfare of human beings.13 There are many textual evidences and examples indicating to the validity of Maslaha in general, which inevitably includes Mursalah category as well.

1: “And we have not sent you but as a Mercy for the worlds.” (Q. 21:107) The purport of this verse according to Ibn Katheer is salvation in this world as well as the Hereafter.14 This was the primary mission of Prophet Muhammad, to lead mankind to the path of salvation in both worlds by extracting them from darkness and abyss of ignorance to the light of Islām. Moreover, to alleviate the burden and remove hardship from them. He chose the easiest of the two (or more) commands in consideration for the welfare of his Ummah (nation) as expressed by his noble wife, Ā’ishah, “The Prophet was never given a choice between any two matters except he chose the easiest of the two so long as it did not amount to a sin.”15 This is a clear indication of the Prophet’s aim as a legislator; not to impose any harm onto his nation and determine the best choice of interest for them.

2: “Allāh does not intend to impose hardship upon you.” (Q. 5:6) This verse is perhaps the most decisive evidence for the legitimacy of Maslaha. Hardship in this context refers to constraint in religion because of the verse in Surah al-Hajj (22:78).16 Maslaha seeks to avert the constraint and hardship from the servant. To impose hardship causes the mukallaf (the legally commissioned individual) to undergo unnecessary constrain and difficulty which opposes the objective of the Sharī῾ah, as outlined in this verse.17

3: The Messenger of Allāh is reported to have said, “No harm is to be endured nor reciprocated in Islām”

Scholars have given particular attention to this Hadeeth by formulating abundant of legal maxims such as “harm is to be averted”, “harm is not to be averted with another harm” and maxims generally related to dharoorah.18 Al-Tufi maintains that this Hadeeth provides a decisive nass for the validity of Maslaha. In his commentary of an-Nawawi’s collection of forty Hadeeth, al-Tufi has dedicated an entire treatise on the concept of Maslaha just under Hadeeth no: 32 “No harm is to be endured nor reciprocated in Islām”. Unlike other jurists, he asserts that this Hadeeth warrants to qualifying and overriding clear texts whether in the Qur'ān, Sunnah or Ijma if it infringes Maslaha under the pretext that the Sharī῾ah aims to promote public welfare and defer harm. Thus anything opposing it is subjected to reinterpretation or

13 Abū Zahra, Usul al-Fiqh, 277 14 Ibn Katheer, Tafseer al-Qur'ān al-Adheem, p. 385, vol 5 15 Saheeh al-Bukhāri, no:6786 16 Al-Qurtubi, Ahkāmul Qur'ān, p.108 vol 6 17 Abū Zahra, Usul al-Fiqh, 282 18 See in Nujaym, al-Ashbah al Nazā’ir, p. 72-80

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THE INSTITUTE FOR THE REVIVAL OF TRADITIONAL ISLAMIC SCIENCES qualified based on this Hadeeth.19 This assertion however is problematic and controversial because it seeks to override a decisive Quranic text with a solitary report. Furthermore, his claim is a paradox within itself as nothing in the Qur'ān infringes basic human interest. This requires further research and beyond the scope of our discussion. An elaborative discussion on al-Tufi’s concept of Maslaha will be presented in the subsequent paper.

4: The companions of the Prophet are also known to have utilised Maslaha Mursalah such as the compilation of the Qur'ān to preserve the religion, even though this did not occur during the lifetime of the Prophet. Sayyidunā Umar is reported to have used this on multiple occasions despite that no textual authority is to be found. a) Issuance of currency b) Regular accountability of all the governors, ensuring they do not mix the public’s wealth with their own. c) He forbade mixing milk with water when selling due to fear of deceiving others. On one occasion he even poured out the milk mixed with water to serve as a deterrent for committing such an act. d) Qisās (capital punishment) of an entire group for murdering an individual because of being accomplices in the crime. 20 The proponents of Maslaha Mursalah are in full agreement that apart from general dealings, it is not a proof nor legitimate in devotional matters, penal laws, laws of inheritance and penances since they cannot be ascertained by human intellect, Ijthād whether in the form of Qiyās or Maslaha. A believer is duty-bound by the Sharī῾ah to accept them without questioning.21 Evidently, Maslaha has its place of recognition within the Islamic sources namely the Qur'ān and Sunnah. Like any other rational forms of legislation, Maslaha Mursalah indifferently ought to be bounded by certain conditions. Respectively, jurists have stipulated stringent conditions for the use of Maslaha Mursalah ensuring that it does not become a tool of unrestricted use for legislation.

Conditions for the Legitimacy of Maslaha Mursalah

1. The Maslaha must be of a genuine nature as opposed to plausible (Wahmiyyah) one. In other words, there must be reasonable grounds for enacting a ruling on the basis of Maslaha Mursalah and not by mere conjecture. And in doing so, its benefits outweigh the harmful effects.22Thus arguably, transferring the right of divorce into the hands of the wife based on Maslaha Mursalah is not warranted at all on the basis that a clear prophetic text states that divorce is in the hands of men. 2. Ghazāli as well as al-Āmidi assert that Maslaha Mursalah must comprise of three elements namely; Dharoori, Qat’i and Kulli. Dharoori implies situation of extreme necessity, however Abū Zahra argues that Dharoorah is an independent principle, recognised through the sources of the Sharī῾ah as opposed to Masalaha Mursalah

19 See al Tufi’s Sharah of al-Arba’een of Imām an-nawawi Hadeeth No:32. It must be stressed here that scholars such as al-Buti have criticised al-Tufi of opposing the consensus of the scholars. His classifications of Maslaha differs considerably from those of the classical jurists and often contradicts himself in his own principles. 20 Abū Zahra, Usul al-Fiqh, 281 21 Kamali, Principles of Islamic Jurisprudence, p. 353 22 Kamali, Principles of Islamic Jurisprudence, p. 359

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THE INSTITUTE FOR THE REVIVAL OF TRADITIONAL ISLAMIC SCIENCES which its validation or invalidation is not to be found in the Sharī῾ah text.23 Nevertheless, Maslaha Mursalah operates within the framework of necessity (as understood from the above classification). Kulli suggests that it secures the benefits and removes harm of the people universally, not for some individuals. Finally Qat’i means the outcome for securing the benefit is definitive and not mere speculation. 3. It must not conflict with the general objectives of the Sharī῾ah or the established principles of the Sharī῾ah.24 4. The ruling must pertain to a rational nature for instance in social dealings and so on.25 Thus Maslaha Mursalah cannot be used in ritual worship, penances and penal laws. Polemics of Maslaha Mursalah amongst the legal Jurists

The polemical discussion amongst the jurists about the legal position of Maslaha Mursalah can be divided broadly into three respective categories;26 1. Those who strictly adhere to the literal text and reject any rational approaches to the textual sources. These are Zāhiri (literalist) school. 2. Those that recognise Maslaha within the scope of Qiyās. The illat which forms the basis of ruling is all-inclusive of the purpose of the Sharī῾ah . Maslaha is thus identified through the illah. 3. Those who suggest that Sharī῾ah all-encompasses Maslaha and aims to preserve the five major essentials. It can be used as an independent authority. The Zāhiri School present the verse in Surah al-Qiyāmah in support of their view; “Does man think that he has been left without guidance?”27 The purport to this verse, as they argue, is that the Sharī῾ah takes full cognisance of all Masālih. There is no Maslaha that falls outside the scope of the Sharī῾ah itself.28 However, this can be argued that the Sharī῾ah intents to outline broad principles of Masālih and has deliberately dismissed the detailed aspects of it. The community continue to face innumerable new cases throughout the passage of time, thus making it unfeasible for the Sharī῾ah to explain all of them in detail otherwise it will incur unnecessary burden. Masālih can also vary between societies and regions. Not considering Maslaha in the absence of clear Nass and Ijma suggest the Sharī῾ah not being adaptable to social changes and eventually result in burdening the society. 29 The second group include the Hanafi and Shāfi’i jurists. They have adopted a different approach of incorporating it within Qiyās.30 They present their arguments for not accepting Maslaha Mursalah as an independent authority as follows;

1. If Masālih is accredited then it is falls within the general scope of Qiyās and if not accredited then rejected. However, it is not appropriate to evoke something of being an accredited Maslaha if it does not fall inside the clear Nass or Qiyās. To maintain otherwise is tantamount to claiming that the textual sources are deficient which opposes the mission of the Prophet.31

23 Abū Zahra, Usul al-Fiqh, 285 24 Ayyūbi, Maqāsid al-Sharī῾ah al-Islamiyyah, p. 505 25 Ayyūbi, Maqāsid al-Sharī῾ah al-Islamiyyah, p. 505 26 Abū Zahra, Usul al-Fiqh, 279 27 Q. 75:36 28 Kamali, Principles of Islamic Jurisprudence, p. 362 29 Hassan. Fan Usūl ki Tareekh, p. 791 30 Abū Zahra, Usul al-Fiqh, 280 31 Abū Zahra, Usul al-Fiqh, 283

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THE INSTITUTE FOR THE REVIVAL OF TRADITIONAL ISLAMIC SCIENCES 2. Taking Maslaha Mursalah as an independent authority suggests that the differences in legal rulings on certain matters become attached with regional or individual variances. In other words, a ruling is Harām for some whilst simultaneously Halāl for others depending on the regional location and the individual capacity. This negates the idea of the Sharī῾ah being eternal; encompasses the entire humankind for all times.32 Albeit the Hanafi jurists do not consider Istislāh as an independent authority, this does not negate in them not employing it. This is because the Hanafis are known to have employed Qiyās extensively compared to the other schools. 33 The Hanafis validate Istislāh on the grounds of Istihsān because both strive for a common goal; averting difficulty and establishing easiness. This is apparent from al-Sarakhsi’s definition of Istihsān which follows; “Istihsān is abandoning Qiyās and taking that which is more suitable for people. It is said that Istihsān is to seek facilitation in laws where there is (genuine) suffering whether in a specific or general ruling……all these (different definition given to Istihsān) propose forsaking hardship for easiness and this is the principle of the religion where Allāh Almighty states; “Allāh intends easiness for you and does not intend hardship for you (2:185).”34

The Shāfi’i jurists recognise Maslaha through the application of direct Qiyās. Some have argued through the application of Istidlāl: identification of the illah which conforms with the general principles of the Sharī῾ah.35 Al-Shāfi’i indicates this in his al-Risālah that if there is no clear indication of Halāl or Harām in the Nass; Qur'ān and Sunnah or the Ijma then analogy is the final resort through a meticulous search of a closest similitude of a particular evidence in the text. In analogy, the Halāl or Harām is only exposed (in the new case) if it meets the requirements of the established principles and the objectives of the Sharī῾ah.36 Al-Zunjāni states that al-Shāfi’ee validates inferring laws in relation to those Masālih that are recognised through universally established principles in the Sharī῾ah if no specific proof (from the Shar’i sources) is to be found. This is because there is no limit to the emergence of specific cases and circumstantial rulings in every era. 37 Al- Zunjāni’s statement clearly suggests that al-Shāfi’i inadvertently endorsed Maslaha Murslaha without clearly expressing it in any of his own works. Like other jurists, he also advocates the pursuance of Maslaha Mursalah to be in full conformity with the universally established principles in the Shar’i sources. Some examples in the Hanafi and Shāfi’i traditions who have ruled certain cases on the grounds of public welfare through the scope of Istihsān or Qiyās. 1. In the Hanafi Tradition, Abū Hanifa permitted the trade of Istisna: advanced payment of the item before its manufacture. Qiyās suggest its impermissibility because this falls in the category of bay Majhool (trade of an anonymous item). When a transaction is Majhool it potentially leads to dispute between both parties. However, this is permitted because of Istihsān as to not to overburden the society and furthermore, its prevalence suggests it does not lead to disputation between both parties.38 2. According to al-Shāfi’i if the witnesses give testimony to the judge that such a person divorced his wife thrice and because of this the judge separated the couple. Subsequently, the witnesses retracted from their testimony, the witnesses are now

32 ibid 33 Al-Būti, Zawābitul Maslaha fi al-Sharī'at al-Islamiyyah p. 380 34 Al-Sarakhsi. Al-Mabsoot, Kitāb al-Istihsān, p. 151 vol 10 35 Doi, Sharī῾ah Islamic Law, p. 125 36 Al-Būti, Zawābitul Maslaha fi al-Sharī'at al-Islamiyyah p. 371 37 Shihābal-Deen al-Zunjāni, Takhreej al-Furu alal-Usool, p.321-322 38 Al-Būti, Zawābitul Maslaha fi al-Sharī'at al-Islamiyyah p. 382

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THE INSTITUTE FOR THE REVIVAL OF TRADITIONAL ISLAMIC SCIENCES responsible of paying the full mahr mithl to the wife if the marriage was consummated otherwise half of the mahr mithl.39 It is clear by now that though Hanafis and Shāfis do not accept Istislāh as an independent proof, both have employed in determining specific legal cases through Istihsān and Qiyās respectively if needed. To the Hanafis, Istislāh is somewhat synonymous to Istihsan in terms of their end goal. The Shāfis on the other hand incorporate it in Qiyās: identification of an illah which conforms to the general principles and valid objectives of the Sharī῾ah.

The third category of jurists who take Maslaha Mursalah as an independent proof are the Mālikis and the Hanbalis. In fact, the Mālikis are the bearers of the flag of Maslaha Mursalah and known for their extensive use of it in resolving many legal cases.40 However, al-Shātibi elucidates the Mālik’s approach to Maslaha stating that though Mālik immersed himself in deciphering the Masālih of the proofs, he would simultaneously be considerate of the general objectives of the Sharī῾ah ; ensuring he does not exit the boundaries of the Sharī῾ah nor oppose its established principles.41 In other words, even in the Mālikis’ view, Maslaha is a legitimate tool only when it fulfils the necessary conditions as outlined above to ensure its propriety.42 The Mālikis present the following reasons for considering Maslaha Mursalah to be an independent authority;43

1. The Companions were known to have employed Maslaha Mursalah in the case of absence of textual evidences. For instance, compilation of the Qur'ān, killing of an entire group in Qisās (equal retribution) etc. 2. Endorsing Maslaha is tantamount to endorsing the objectives of the Sharī῾ah. Overlooking Maslaha is equal to overlooking the Shar’i objectives. So conclusively, it falls within the principles of the Religion. 3. The purpose of the Sharī῾ah is to avert harm and guarantee welfare for the creation. This is evident from the verse: God has not placed any difficulty in your Religion. This a clear manifestation that not considering Maslaha will ensue constraint and difficulty upon everyone. The Hanbali jurists have used Maslaha Mursalah extensively in solving political issues in the absence of a clear Nass.44 Conversely, in al-Būti’s analysis, Ahmad Ibn Hambal includes Maslaha in the domain of Istinbāt; a sub-branch of sound Qiyās. He quotes from Ibn Qayyum’s that the Hanbali jurists regard Masālih amongst the principles of Istinbāt. He goes on to mention that Ibn Qayyum affirms that all legal matters enshrined in the textual sources by the Lawgiver, holistically cater for the welfare of the servants. Maslaha underpins all financial dealing in the Sharī῾ah, guaranteeing benefit for the people and preventing harm. But all Masālih are recognised through sound Qiyās in the Usūl methodology.45 The obvious assumption in al-Būti’s argument is that the Hanbalis like the Shāfi’s and Hanafis, do not recognise Maslaha as an independent authority. Nevertheless, al-Būti himself confesses that

39 Al-Shāfi’i Al-Umm, p.50 vol 7 (Cited in Al-Būti, Zawābitul Maslaha fi al-Sharī'at al-Islamiyyah p. 379) 40 Amini, Ijtihād, p. 206, Al-Būti, Zawābitul Maslaha fi al-Sharī'at al-Islamiyyah p. 367 41 Al-Shātibi, al-I’tisām, p. 311 vol 2 42 Abū Zahra, Usul al-Fiqh, p. 280 43 ibid 44 Amini, Ijtihād, p. 207 45 Al-Būti, Zawābitul Maslaha fi al-Sharī'at al-Islamiyyah p. 369. Ibn Qayyum outlines the principles of Istinbāt in the Hanbali School; The Nass; Qur'ān ans Sunnah, Fatawa of the Companions, Mursal and weak Hadeeth and thereafter Qiyās. (See I’lām al Muqi’een p. 29-33 vol 1).

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THE INSTITUTE FOR THE REVIVAL OF TRADITIONAL ISLAMIC SCIENCES Ahmad ibn Hanbal was also an advocate of Maslaha after Mālik.46 The impression give here is that even though the Hanbali jurists do not specifically mention Maslaha in their Usūl methodology, public interest is an important principle to be considered when employing Istinbāt. Some examples of both schools employing Maslaha Mursalah are as follows;

1. Imām Mālik validates the pledging of the Bay’ah of the Mafdhūl, the least qualified candidate, for the post of Imām to prevent disorder. If the money treasury funds run out, the Imām can impose tax on the rich people to meet the need of the people.47 2. Imām Ahmad Ibn Hanbal permits a father to make additional gifts for a specific child of his; son or daughter, a certain portion of his wealth or land for a need. Like if he is ill or a religious student etc. He also allows a governor to compel those withholding stock from the people to sell it to the people in need with the same price they themselves purchased it.48 Conclusion A careful study of the fiqhi case studies in the juristic works of the four Sunni schools reveal that they all recognised Maslaha Mursalah. Al-Qarrāfi’s assertion corroborates to this fact that Maslaha Mursalah is not exclusive to the Māliki jurists alone. Rather, he states that you will find other legal jurists (referring to the remaining three Sunni jurists) relying on it also. 49 The Hanafis and Shāfi’s expressed different Arabic terms respectively in describing it, but refuse to employ it as an independent authority because of it being a rational proof.50 The Mālikis and Hanbalis are not only known to have used it but have clearly expressed its legality in the legal theory. The Māliki School in particular is well-known for its extensive usage in comparison to other three schools of law. One thing is for sure that though the Māliki and the Hanbali jurists seek to employ it as an independent authority, it is accepted only if it complies with the necessary conditions outlined above. Any Maslaha based issue conflicting with the general objectives of the Sharī῾ah is no longer warranted and as a result rejected. This being the case, it can be safely concluded that any newly unprecedented case emerging in our times can be resolved through Maslaha Mursalah whereby the general interest of the public sphere be taken into consideration which aims to procure benefit and defer harm.

Mufti Abdul Waheed Student of IRTIS December 2015 Under the supervision of Mufti Amjad Mohammed

46 Ibid 47 Hassan. Fan Usūl ki Tareekh, p. 789 48 ibid 49 Shihāb al-Deen Qarrāfi, Tanqeeh al-Fusool, p. 200

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THE INSTITUTE FOR THE REVIVAL OF TRADITIONAL ISLAMIC SCIENCES

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