Maslahah

Mursalah

Introduction
Definition:
Root word salaha or saluha which is to be good, to
repair or toimprove
Maslahah means benefit or interest.
Maslahah Mursalah (MM) 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
Al-Ghazali Maslahah consists of considerations which secure
a benefit or prevent harm but are in the meantime, harmonious
with the objectives of the Shariah
Objective of Shariah Protecting 5 essential values:
religion, life,intellect, lineage and property
The concept of maslahah has a very close relationship
with maqasid al-shariah as MS are defined briefly as
obtaining
maslahah
(benefit)
and
preventing
mafsadah(evil).

Juristic View
Majority of ulama:
Istislah is a proper ground for legislation when a maslahah
is identified. 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
Imam Malik:
The main support for istislah as a proof and basis of
legislation
1. 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 (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.
Al-Tufi: A prominent Hanbali jurists Authorises alternative to maslahah with or without the
existence of a nass. He argues that the hadith la dharar
wa ladhirar enables the maslahah to take precedence over
all other considerations. However, he precludes devotional
matters, specific injunction and prescribed penalties from

the scope of maslahah. These matters can only be

established by nass and ijma.As for transaction and
temporal affairs- if the text conform the maslahah of the
people, they should be applied forthwith, but if they
oppose, the maslahah should take precedence over them.
Istislah is not a proof in respect of devotional matters
(ibadah) and the specific injunctions of the Shariah
Example: Hudud penalties, kaffarat, entitlement in
inheritance, specified period of iddah and number of
rakaat in solat.

Proof of MM

Surah Al Anbiya : 107

We hv sent you but a mercy for all creatures

Surah Yunus : 75
O mankind, a direction has come to you from your Lord, it is a
healing for the ailments in your hearts..

The message for these 2 phrases here exceeds all

barriers that divide the humanity; none must stand
on the way of seeking mercy & beneficence to human
beings.

Surah Al Maidah : 6
God never intends to impose hardship upon ppl
God also described that His purpose in the revelation
of religion of Islam is not a means of imposing
hardship.

Sunnah/Hadeeth :
harm is neither inflicted nor tolerated in Islam.

Sunnah/Hadeeth :
The Prophet did not choose but the easier of the two
alternatives so long as it did not amount to a sin.

 Sunnah/Hadeeth :
Muslims are bound by their stipulations unless it be a
condition which turns a haram into halal or a halal into haram.
Based on these hadeeths seems to grant muslims the liberty
to pursue their benefits & to commit themselves to that
effect provided that this does not amount to a violation of
the explicit commands & prohibitions of the Syariah.

Sunnah/Hadeeth :
God loves to see that His concessions (rukhas) are observed
in the same way that His strict laws are obeyed.
It is confirmed that no unnecessary rigour in the
enforcement of the ahkam(rulings) is recommended, & that
the Muslims should avail themselves of the flexibility &
concessions that the Lawgiver has granted them & to utilize
such in pursuit of the masalih.

Types of Objective of Shariah

1. ESSENTIALS/NECESSITIES VALUE (DARURRIYAT)
5 essential value (al dharuriyyat al khamsah)s i.e.
religion, life, intellect, lineage & property must not
only be promoted but also be protected against any
real or expected threat which undermine their safety.
To uphold the faith would thus require observance of
the prescribed forms of ibadat(ritual), whereas the
safety of life and intellect is secured by obtaining
lawful means of sustenance as well as the
enforcement of penalties which the Shariah has
provided so as to protect them against destruction and
loss.

2.

COMPLEMENTARY VALUE (HAJIYYAT)

The whole supplementary to the 5 essential values &
they refer to interests whose neglect leads to hardship
in the life of the community although not to its
collapse. Thus in the area of ibadat the concessions
that the Shariah has granted to the sick & to the
traveler not to observe the fast, & shorten the solat,
(prayer) are aimed a preventing hardship.

3.

EMBELLISHMENTS VALUE (TAHSINIYYAT)

refers to interests who realization leads to
improvement & the attainment of that which is
desirable. Thus the observance of cleanliness in
personal appearance & ibadat, moral virtues, avoiding
extravagance in consumption & moderation in the
enforcement of penalties fall within the scope of
tahsiniyyat.

Condition of MM
1. The maslahah must be genuine (haqiqiyyah), as opposed
to a false 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 husbands right of talaq by vesting it
entirely in a court of law.
Genuine masalih are those which contemplate
protection of the five essential values noted above.

the

An example, protecting the faith necessitates the

prevention of sedition (fitnah) and of the propagation of
heresy.
An example, protecting religion It also means safeguarding
freedom of belief in accordance with the Quranic principle
that there shall be no compulsion in religion (al-Baqarah,
2:256)
An example, protecting life protecting the means which
facilitate an honourable life such as the freedom to work,
freedom of speech, and freedom to travel.
An example, protecting intellect (`aql) necessitates the
promotion of learning and safeguards against calamities
which corrupt the individual and make him a burden to
society.

An example, protecting lineage entails protection of the

family and creation of a favourable environment for the care
and custody of children.
An example, protection of property requires defending the
right of ownership. It also means facilitating fair trade and
the lawful exchange of goods and services m the community.
2. 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. Maslahah must not be in conflict with a principle or value
which is up held 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
Quran. The view that riba in the way it is practiced in
modern banking does not fall under the Quranic
prohibition, as Abu Zahrah points out, violates the nass
and therefore negates the whole concept of maslahah.
4. Imam Malik has added two other conditions
the maslahah must be rational (ma `qulah) and
acceptable to people of sound intellect.
must prevent or remove hardship from the people, which
is the express purpose of the Quranic ayah in sura alMaidah (5:6) quoted above.

5. al-Ghazali:
maslahah, in order to be valid, must be essential(almaslahah aldaruriyyah). 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-Ghazalis argument appears to
be that the intended maslahah in this example entails the
killing of innocent Muslims, and the Shariah provides no
indication to validate this

Types of Maslahah
Maslahah Mutabarah Maslahah which the Law Giver
hasexpressly upheld and enacted a law for itsrealisation.
Protecting life by enacting the law of retaliationor defending the
right of ownership bypenalising the thief or protecting the
dignityand honour of the individual by penalisingadultery and
false accusation. (Maslahahdharuriyyah)
The lawgiver has upheld that each offenceconstitute proper
ground for punishment inquestion. The validity of maslahah in
these cases isdefinitive (
Shortening and combining of prayers orbreak fasting when
travelling parts ofrukhsah maslahah hajiyyah Polygamy?
Written agreement/contract?
Maslahah Mulghah It is a maslahah which the Lawgiver
hasnullified either explicitly or by indicationthat could be found
in the shariah. Ulama agree that legislation in pursuant
ofsuch interests is invalid and no judicialdecree maybe issued
in their favour
Example: An attempt to give the son and daughter
equalshare in inheritance on the assumption that thiswill secure
a public interest. Since theres a clear nass in the Quran
whichassigns to the son double the portion of thedaughter, the
maslahah in this case is clearlynullified.
Right to divorce Some said it should also be given to the
wifebecause of maslahah Is there a maslahah? Maslahah
mulghah.
Maslahah Mursalah Maslahah which has been validated after
thedivine revelation came to an end. MM is unrestricted public
interest in thesense of it not having been regulated by
theLawgiver insofar as no textual authority canbe found on its
validity or otherwise. The Lawgiver has neither upheld
nornullified the necessary legislation.

 More technically, MM is defined as aconsideration which is

proper andharmonious with the objectives of theLawgiver; it
secures a benefit and preventsa harm; and the Shariah
provides noindication as to its validity or otherwise.