Ahmad Hasan has observed that istihsan is more general than qiyas khafi, as the former embraces a
wider scope and can apply to matters beyond the confines of the latter.
p.352.]
[39. Ahmad Hasan, 'The Principle of Istihsan',
Aghnides has similarly held that istihsan is a new principle which goes beyond the scope of qiyas,
whether or not this is openly admitted to be the case:
Abu Hanifah and his earliest disciples did not consider istihsan as a kind of qiyas [...] nor did he use the
word in any technical sense. Had that been the case, like so many of his views, it would probably have
been placed on record. The fact is that he used the word istihsan in its usual meaning, namely, that of
abandoning qiyas for an opinion thought to be more subservient to the social interest.
Muhammedan Theories, p.73.]
Aghnides goes on to suggest that when the Shafi'i jurists attacked istihsan on the grounds that it meant a
setting aside of the revealed texts, the disciples of Abu Hanifah felt themselves forced to show that such
was not the case. Hence they put forward the contention that istihsan was nothing but another kind of
qiyas. According to another observer, the attempt to bring istihsan within the sphere of qiyas is
unjustified. For `it really lies outside of this narrow sphere and must therefore be recognised as a special
form of deduction'.
[41. Paret, 'Istihsan and Istislah', Encyclopedia of Islam, new ed., IV, 256.]
Al-Ghazali has criticized istihsan on different grounds. He has observed that the jurists of the Shafi`i
school have recognised the validity of istihsan which is based on an indication (dalil) from the Qur'an
or Sunnah. When there exists a dalil of this kind, then the case at hand would be governed not by
istihsan but directly by the provision of the Qur'an or Sunnah itself.
[42 . Ghazali, Mustasfa, I. 137.]
Furthermore alGhazali
is critical of Abu Hanifah for his departure, in a number of cases, from a sound Hadith in
favour
of qiyas
or istihsan.
Principles of Islamic Jurisprudence ~ Kamali 229
[40. Aghnides,
[43. Ghazali criticises Abu Hanifah's ruling, for example, with regard to implementing the punishment of zina on the
testimony of four witnesses each of whom point at a different corner of the room where zina is alleged to have taken place. This is a case, according to Ghazali, of
doubt (shubha) in the proof of zina which would prevent the enforcement of the hadd penalty. For according to a Hadith, hudud are to be dropped in all cases of
doubt. Abu Hanifah's ruling is based on istihsan, apparently on the grounds that disbelieving the Muslims (takdhib al-muslimin) is reprehensible. Ghazali regards
Abu Hanifah's ruling as whimsical and a form of istihsan which should not be followed (Mustasfa, I, 139).]
And finally, al-Ghazali rejects
istihsan which is based on popular custom, for custom by itself is not a source of law. He observes that
approved customs are often justified with reference, not to istihsan, but to other proofs. While referring
to the example of entry to a public bath for a fixed price without quantifying the consumption of water,
al-Ghazali asks: `How is it known that the community adopted this practice by virtue of istihsan? Is it
not true that this was the custom during the time of the Prophet, in which case it becomes a tacitly
approved Sunnah (Sunnah taqririyyah) so as to prevent hardship to the people?'
[44. Mustasfa, II, 138.]
Another Shafi'i jurist, al-Amidi, has stated that notwithstanding his explicit denunciation of istihsan, alShafi`i
himself resorted to istihsan.
Al-Shafi'i has been quoted to have used a derivation of istihsan
on
several
occasions including the ruling in which he said, 'I approve (astahsinu)
mut'ah
(gift ofconsolation) at the level of 30 dirhams'; and `I approve (astahsinu) the proof of pre-emption (shuf`) to
be three days' (following the date when the sale of the property in question came to the knowledge of
the claimant). Al-Amidi thus draws the conclusion that `there is no disagreement on the essence of
istihsan between the two schools,'
[45. Amidi, Ihkam, IV, 157.]
which obviously means that their differences
amount to no more than splitting hairs over words.
The Maliki jurist al-Shatibi has held that istihsan does not mean the pursuit of one's desires; on the
contrary, a jurist who understands istihsan has a profound understanding of the intention of the
Lawgiver. When the jurist discovers that a strict application of analogy to a new problem leads to loss
of maslahah and possibly to an evil (mafsadah) then he must set aside qiyas and resort to istihsan.
Shatibi, Muwafaqat (ed. Diraz), IV, 206.]
While discussing the controversy over istihsan, another observer, Shaykh al-Khudari, writes that
anyone who is familiar with the works of the ulema of jurisprudence would agree that Abu Hanifah and
his disciples are not alone in their reliance on istihsan. All jurists have resorted to istihsan in one form
or another, and a reader of the various juristic schools of thought is bound to come across opinions
which are founded in it.
[47. Khudari, Tarikh, p.201.]
This view finds further support from Yusuf Musa, who has tersely observed that juristic differences
over istihsan essentially amount to no more than arguments over words. For the fuqaha' of every major
school have invariably resorted to istihsan in one form or another.
[48. Musa, Madkhal, p.198.]
If this is accepted, then one naturally wonders as to the causes that might explain the controversy in
question. Al-Taftazani has observed that neither of the two sides of the controversy over istihsan have
understood one another, and that the whole debate is due to a misunderstanding. Those who argue in
favour of istihsan have perceived this principle differently to those who have argued against it. Had
istihsan been properly understood, al-Taftazani adds, its basic validity would never have been
disputed.
[49. Taftazani, Talwih, p. 82. It is not certain whether Taftazani was a Hanafi or a Shafi'i. In a bibliographical note on Taftazani, it is stated that he is
sometimes considered a Hanafi and sometimes a Shafi'i. See al-Mawsu`ah al-Fiqhiyyah, I, 344.]
Al-Taftazani's assessment has been widely endorsed by modern writers on the subject, including
Khallaf, Abu Zahrah and Yusuf Musa. In Khallaf's opinion, the essential validity of istihsan is
undeniable, for it enables a departure from the apparent or the general rule of law to a variant ruling
which warrants such a departure. Every judge and jurist must consider the circumstances of an
individual case, and occasionally decide not to apply a certain rule, or to make an exception, as he
considers this to be required by maslahah and justice.
[50. Khallaf, `Ilm, p. 83; Musa, Madkhal, p.197.]
And lastly, Abu
Zahrah observes that, 'One exception apart, none of al-Shafi'is criticisms are relevant to the Hanafi
conception of istihsan'. The one exception that may bear out some of al-Shafi'i's criticisms is istihsan
Principles of Islamic Jurisprudence ~ Kamali 230
[46.which is authorised by custom. For custom is not a recognised source of law and is, in any case, not
sufficiently authoritative to warrant a departure from qiyas.
Conclusion
[51. Abu Zahrah, Usul, p. 215.]
The attempt at linking istihsan with qiyas has involved tortuous reasoning which somehow remains less
than convincing. One way to resolve some of the juristic differences on this issue may be to go back to
the origin of istihsan and recapture the meaning that was given to it by Abu Hanifah and the early
ulema of jurisprudence. On this point there is evidence to suggest that Abu- Hanifah (d. 150/767) did
not conceive of istihsan as an analogical form of reasoning. About half a century later, when al-Shafi`i
wrote his Risalah and Kitab al-Umm, there was still little sign of a link between istihsan and qiyas. AlShafi'i
is, in fact, completely silent on this point. Had al-Shafi'i (d.204/820) known that istihsan
was a
variety
of qiyas,
one can imagine that he might have softened his stand with regard to it. Originally
istihsan
was conceived in a wider and relatively simple form which was close to its literal meaning and
free
of the complexities that were subsequently woven into it. One is here reminded of Imam Malik's
characteristic
statement which designates istihsan
as nine-tenth of human knowledge, a statement which
grasps
the true essence of istihsan
as
a method of finding better and more equitable alternatives to
existing
problems both within and beyond the confines of analogical reasoning. Istihsan
is basically
antithetic
to qiyas
and not a part of it. It enables the jurist to escape from strict conformity to the rules of
qiyas
when such conformity is likely to lead to unfair results. Istihsan
was originally formulated, not as
another
variety of qiyas,
but as a doctrine which liberated the jurist from the strait-jacket of qiyas,
especially
where conformity to qiyas
clashed with the higher objectives of the Shari'ah.
It is well to remember that much of the juristic controversy over istihsan has developed under the
pressure of conformity to the strict requirements of the legal theory once it was finally formulated by alShafi`i
and gradually accepted by others. The thrust of al-Shafi'i's effort in formulating the legal theory
of
the usul
was
to define the role of reason vis-à-vis the revelation. Al-Shafi'i confined the scope of
human
reasoning in law to analogy alone. In his well-known statement concerning ijtihad
and qiyas,
especially
where he considered the two to be synonymous, one hardly fails to notice the attempt at
confining
the use of human reasoning to qiyas
alone:
On all matters touching the life of a Muslim there is either a binding decision or an indication as to the
right answer. If there is a decision, it should be followed; if there is no indication as to the right answer,
it should be sought by ijtihad, and ijtihad is qiyas.
[52. Shafi'i, Risalah, p. 206.]
In this statement, al-Shafi`i reflected the dominant mood of his time. From that point onward, any
injection of rationalist principles into the legal theory of the usul had to seek justification through qiyas,
which was the only channel through which a measure of support could be obtained for istihsan. In order
Principles of Islamic Jurisprudence ~
Kamali 231
to justify istihsan within the confines of the legal theory, it was initially equated with qiyas and
eventually came to be designated as a sub-division of it.
The next issue over which the fuqaha' have disagreed is whether an istihsan which is founded in the
Qur'an, Sunnah, or ijma` should be called istihsan at all. In cases where a Hadith authorises departure
from an existing analogy in favour of an alternative ruling, then all that one needs to authorise the
departure in question is the Hadith itself. It would therefore seem redundant to apply the word istihsan
to this form of departure from the rules of qiyas. Whenever a ruling can be found to the Qur'an (or the
Sunnah), the jurist is obliged to follow it and should, basically, have no choice of resorting to qiyas or
to istihsan. If the Qur'an provides the choice of an alternative ruling which seems preferable, then the
alternative in question is still a Qur'anic rule, not istihsan.
It would appear that the fuqaha' initially used the term istihsan close to its literal sense, which is to
`prefer' or to deem something preferable. The literal meaning of istihsan was naturally free of the
restrictions which were later evolved by the fuqaha'. A measure of confusion between the literal and
technical meanings of istihsan probably existed ever since it acquired a technical meaning in the usage
of the jurists. This distinction between the literal and juristic meanings of istihsan might help explain
why some ulema have applied istihsan to the rulings of the Qur'an, the Sunnah, and ijma'. When we say
that the Qur'an, by way of istihsan, permitted bequests to be made during the lifetime of the testator, we
are surely not using istihsan in its technical/juristic sense - that is, giving preference to one qiyas over
another or making an exception to an existing legal norm - but merely saying that the Qur'an preferred
one of the two conceivable solutions in that particular case. When the Qur'an authorises bequests, then
one might say that it has established a legal norm in its own right regardless as to whether it can be
described as an exception to another norm or not. To regard this Qur'anic ruling as an istihsan can only
be true if istihsan is used in its literal sense. For as a principle of jurisprudence, istihsan can add nothing
to the authority of the Qur'an and the Sunnah. Although one might be able to find the genesis of istihsan
in the Qur'an, this would have nothing to do with the notion of constructing istihsan as an alternative to,
or a technique of escape from, qiyas. Furthermore, to read istihsan into the lines of the Qur'an would
seem superfluous in the face of the legal theory of the usul that there is no room for rationalist doctrines
such as istihsan in the event that a ruling can be found in the nusus.
Notwithstanding the fact that many observers have considered Abu'l-Hasan al-Karkhi's definition to be
the most acceptable, my enquiry leads to the conclusion that the Maliki approach to istihsan and Ibn al`Arabi's
definition of it, is wider in scope and probably closest to the original conception of istihsan,
for
it
does not seek to establish a link between istihsan
and qiyas.
Istihsan has undoubtedly played a significant role in the development of Islamic law, a role which is
sometimes ranked even higher than that of qiyas. Notwithstanding a measure of reticence on the part of
the ulema to highlight the role of istihsan, it in reality features most prominently in bridging the gap
Principles of Islamic Jurisprudence ~
Kamali 232
between law and social realities by enabling the jurist to pay individual attention to circumstances and
the peculiarities of particular problems. But for reasons which have already been explained, the fuqaha'
have exercised restraint in the use of istihsan, which, as a result, has not been utilised to the maximum
of its potential. Hence, it is not surprising to note that a certain gap between theory and practice has
developed in Islamic Law.
[53. Joseph Schacht has devoted a chapter to the subject, entitled `Theory and Practice' where he elaborates on how the
gap between the law and social realities has widened: An Introduction, pp.76-86.]
The potentials of istihsan could hardly be
translated into reality unless istihsan is stripped of its unwarranted accretions. The only consideration
that needs to be closely observed in istihsan is whether there exists a more compelling reason to warrant
a departure from an existing law. The reason which justifies resort to istihsan must not only be valid in
Shari`ah but must serve a higher objective of it and must therefore be given preference over the existing
law which is deemed unfair. Since istihsan enables a choice between alternative solutions, it
contemplates the relative merits and demerits of each of the alternatives. The existing law is always the
base to which an alternative is devised through istihsan. In this sense, istihsan offers considerable
potential for innovation and for imaginative solutions to legal problems. The question in istihsan is not
merely to find a solution to a particular problem but to find a better solution to the one which already
exists. It therefore calls for a higher level of analysis and refinement which must in essence transcend
the existing law and analogy.
The potential for new alternatives in istihsan would thus be considerably restricted if it were to be
subjected to the requirements of qiyas. The two are essentially designed for different purposes and each
must be allowed to function in its best capacity. Analogy essentially extends the logic of the Qur'an and
the Sunnah, whereas istihsan is designed to tackle the irregularities of qiyas. Thus it would seem
methodologically incorrect to amalgamate the two into a single formula.
Istihsan has admittedly not played a noticeable role in the legal and judicial practices of our times. It
has, as it were, remained in the realm of controversy, which may partly be explained by the dominance
of the phenomenon of taqlid in shaping the attitude of lawyers and judges towards istihsan. Only the
rulings of the jurists of the past have been upheld on istihsan, and even this has not been totally free of
hesitation. Muslim rulers and judges have made little or no use of istihsan either in developing the
existing law or in the day-to-day administration of justice. This is patently unjustified, especially in
view of the eminent suitability of istihsan in the search for fair and equitable solutions.
Istihsan can best be used as a method by which to improve the existing law, to strip it of impractical
and undesirable elements and to refine it by means of making necessary exceptions. Istihsan, in other
words, generally operates within the confines of the legal status quo and does not seek a radical change
in the existing law, although it has considerable potential to effect innovation and refinement.
Judges and lawyers are generally reluctant to depart from the existing law, or to make exceptions to it,
even in the face of evidence to the effect that a departure would be in the interests of fairness and
Principles of Islamic Jurisprudence ~
Kamali 233
justice. Their reluctance is often due to the reticence in the law as to precisely what role the judge has to
play in such a situation. Judges are normally expected to enforce the law at all costs, and often have
little choice in the matter regardless of the circumstances or results. Alternatively, it may be that the
judges are, in fact, doing this- departing from the law when it seems patently unfair - without openly
acknowledging what they are doing. In any case, it world seem advisable if the legislature explicitly
authorised the judge to resort to istihsan when he considers this to be the only way of achieving a fair
solution in a case under consideration. In this way, istihsan would hopefully find a place in the day-today
administration of justice and would consequently encourage flexibility and fairness in law and
judicial
practice. Judicial decisions would, in turn, influence legislation and contribute towards attaining
a
more refined and equitable legal order. A clear and well-defined role for istihsan
would
hopefully
mark
a new opening in the evolutionary process of Islamic law.
Principles of Islamic Jurisprudence ~
Kamali 234
Chapter Thirteen: 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.
[1. Khallaf, 'Ilm, p. 84; Badran Usul, p. 209.]
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.
[2. Ghazali, Mustasfa, I, 139-140.]
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.
[3. Badran, Usul, p. 210; Sabuni, Madkhal, p. 131.]
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.
[4. Khallaf, 'Ilm, p. 84.]
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.
[5. Badran, Usul, p. 210; Sabuni, Madkhal, p. 134.]
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.
[6. Shatibi, Muwafaqat, II, 2-3; Sabuni, Madkhal, p. 134.]
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
Principles of Islamic Jurisprudence ~
Kamali 235
be able to act in pursuit of the masalih as and when these present themselves.
211.]
[7. Khallaf, 'Ilm, p. 84; Badran, Usul, p.
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.'
[8. Cf. Shatibi, Muwafaqat, II, 3; Mustafa Zayd, Maslahah, p. 25.]
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 ahadith 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'.
[9. Ibn Majah, Sunan, Hadith no 2340.]
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.
[10. Khallaf, `Ilm, p.90; Abu Zahrah, Usul, p. 222.]
Najm alDin
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'.
[11. Muslim, Sahih Muslim, p.412, Hadith no. 1546.]
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.'
Sunan ( Hasan's trans.), III, 1020, Hadith no 3587.]
Principles of Islamic Jurisprudence ~ Kamali 236
[12. Abu Dawud,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.'
[13. Ibn al-Qayyim, I'lam, II, 242; Mustafa Zayd, Maslahah, p. 120.]
'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.
[14. Shatibi, I`tisam, II, 287; Khallaf, `Ilm, p.86.]
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.
[15. Ibn al-Qayyim, I`lam, I, 185; Abu Zahrah, Usul, pp. 222-223; Mustafa Zayd, Maslahah, p. 52.]
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.
[16. Shatibi, I'tisam, II, 292, 302; Ibn al-Qayyim, I`lam, I, 182; Abu Zahrah, Usul, p. 223.]
In a similar vein, the ulema
Principles of Islamic Jurisprudence ~
Kamali 237
detention and ta`zir for want of evidence of a person who is accused of a crime.
`Ilm, p.86, Abu Zahrah, Usul, p. 223.]
[17. Shatibi, I`tisam, II, 293. Khallaf,
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.'
16.]
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.
3. When the maslahah is compatible with the objectives of the Lawgiver (maqasid al-shari`) or
Principles of Islamic Jurisprudence ~ Kamali 238
[18. Ibn al-Qayyim, Turuq, p.
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.
4.
5. When maslahah is of the genus of the approved masalih and is not upheld, the likely result
6.
7.
would be to inflict hardship on the people, which must be prevented.
Zahrah, Usul, p. 223.]
Types of Maslahah
[19. Shatibi, I`tisam, II, 282-287; Abu
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.
[20. Shatibi, Muwafaqat, II, 3-5; Badran, Usul, p. 208.]
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.
[21. Shatibi, Muwafaqat, II, 5; Mustafa Zayd, Maslahah, pp.54-55.]
The `embellishments' (tahsiniyyat, also known as karahiyyah) denote interests whose realisation lead 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 attaining 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.
[22. Shatibi, Muwafaqat, II, 27ff.]
From the viewpoint of the availability or otherwise of a textual authority in its favour, maslahah is
farther 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.
[23. Khallaf, 'Ilm, p. 84; Badran, Usul, pp. 209-10.]
Principles of Islamic Jurisprudence ~
Kamali 239
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.
p. 85; Badran, Usul, p. 215.]
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 clear
nass 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).
[25. Badran, Usul, p. 209.]
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
Principles of Islamic Jurisprudence ~ Kamali 240
[24. Khallaf, 'Ilm,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.
[26. Khallaf, 'Ilm, p. 86.]
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 m the community.
[27. Abu Zahrah, Usul, p. 220.]
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.
[28. Khallaf,`Ilm, p.87; Badran, Usul, p. 214.]
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.
[29. Abu Zahrah, Usul, p. 219; Badran, Usul, p. 215.]
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.
[30. Shatibi, I`tisam, II, 307-14; Mustafa Zayd, Maslahah, p.51.]
Furthermore, according to al-Ghazali, maslahah, in order to be valid, must be essential (al-maslahah 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.
[31. Ghazali, Mustasfa, I, 141.]
However the weakness of al-Ghazali's argument appears to be that
Principles of Islamic Jurisprudence ~
Kamali 241
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
[32. Badran. Usul, pp. 215-16.]
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.
[33. Tufi, Masalih, p.139.]
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.
Maslahah, pp. 238-240. This book is entirely devoted to an exposition of Tufi's doctrine of Maslahah.]
[34. Tufi, Masalih, p. 141; Mustafa Zayd,
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.
Zahrah, Usul, p. 223. A discussion of Tufi's doctrine can also be found in Kerr, Islamic Reform, p. 97ff.]
[35. Cf. Mustafa Zayd, Maslahah, p. 121; Abu
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.
[36. Tufi, Masalih, p.141; Mustafa Zayd, Maslahah, p. 131-132.]
In short, al-Tufi's doctrine,
as Mahmassani has observed, amounts to saying after each ruling of the text, 'Provided public interest
Principles of Islamic Jurisprudence ~
Kamali 242
wider scope and can apply to matters beyond the confines of the latter.
p.352.]
[39. Ahmad Hasan, 'The Principle of Istihsan',
Aghnides has similarly held that istihsan is a new principle which goes beyond the scope of qiyas,
whether or not this is openly admitted to be the case:
Abu Hanifah and his earliest disciples did not consider istihsan as a kind of qiyas [...] nor did he use the
word in any technical sense. Had that been the case, like so many of his views, it would probably have
been placed on record. The fact is that he used the word istihsan in its usual meaning, namely, that of
abandoning qiyas for an opinion thought to be more subservient to the social interest.
Muhammedan Theories, p.73.]
Aghnides goes on to suggest that when the Shafi'i jurists attacked istihsan on the grounds that it meant a
setting aside of the revealed texts, the disciples of Abu Hanifah felt themselves forced to show that such
was not the case. Hence they put forward the contention that istihsan was nothing but another kind of
qiyas. According to another observer, the attempt to bring istihsan within the sphere of qiyas is
unjustified. For `it really lies outside of this narrow sphere and must therefore be recognised as a special
form of deduction'.
[41. Paret, 'Istihsan and Istislah', Encyclopedia of Islam, new ed., IV, 256.]
Al-Ghazali has criticized istihsan on different grounds. He has observed that the jurists of the Shafi`i
school have recognised the validity of istihsan which is based on an indication (dalil) from the Qur'an
or Sunnah. When there exists a dalil of this kind, then the case at hand would be governed not by
istihsan but directly by the provision of the Qur'an or Sunnah itself.
[42 . Ghazali, Mustasfa, I. 137.]
Furthermore alGhazali
is critical of Abu Hanifah for his departure, in a number of cases, from a sound Hadith in
favour
of qiyas
or istihsan.
Principles of Islamic Jurisprudence ~ Kamali 229
[40. Aghnides,
[43. Ghazali criticises Abu Hanifah's ruling, for example, with regard to implementing the punishment of zina on the
testimony of four witnesses each of whom point at a different corner of the room where zina is alleged to have taken place. This is a case, according to Ghazali, of
doubt (shubha) in the proof of zina which would prevent the enforcement of the hadd penalty. For according to a Hadith, hudud are to be dropped in all cases of
doubt. Abu Hanifah's ruling is based on istihsan, apparently on the grounds that disbelieving the Muslims (takdhib al-muslimin) is reprehensible. Ghazali regards
Abu Hanifah's ruling as whimsical and a form of istihsan which should not be followed (Mustasfa, I, 139).]
And finally, al-Ghazali rejects
istihsan which is based on popular custom, for custom by itself is not a source of law. He observes that
approved customs are often justified with reference, not to istihsan, but to other proofs. While referring
to the example of entry to a public bath for a fixed price without quantifying the consumption of water,
al-Ghazali asks: `How is it known that the community adopted this practice by virtue of istihsan? Is it
not true that this was the custom during the time of the Prophet, in which case it becomes a tacitly
approved Sunnah (Sunnah taqririyyah) so as to prevent hardship to the people?'
[44. Mustasfa, II, 138.]
Another Shafi'i jurist, al-Amidi, has stated that notwithstanding his explicit denunciation of istihsan, alShafi`i
himself resorted to istihsan.
Al-Shafi'i has been quoted to have used a derivation of istihsan
on
several
occasions including the ruling in which he said, 'I approve (astahsinu)
mut'ah
(gift ofconsolation) at the level of 30 dirhams'; and `I approve (astahsinu) the proof of pre-emption (shuf`) to
be three days' (following the date when the sale of the property in question came to the knowledge of
the claimant). Al-Amidi thus draws the conclusion that `there is no disagreement on the essence of
istihsan between the two schools,'
[45. Amidi, Ihkam, IV, 157.]
which obviously means that their differences
amount to no more than splitting hairs over words.
The Maliki jurist al-Shatibi has held that istihsan does not mean the pursuit of one's desires; on the
contrary, a jurist who understands istihsan has a profound understanding of the intention of the
Lawgiver. When the jurist discovers that a strict application of analogy to a new problem leads to loss
of maslahah and possibly to an evil (mafsadah) then he must set aside qiyas and resort to istihsan.
Shatibi, Muwafaqat (ed. Diraz), IV, 206.]
While discussing the controversy over istihsan, another observer, Shaykh al-Khudari, writes that
anyone who is familiar with the works of the ulema of jurisprudence would agree that Abu Hanifah and
his disciples are not alone in their reliance on istihsan. All jurists have resorted to istihsan in one form
or another, and a reader of the various juristic schools of thought is bound to come across opinions
which are founded in it.
[47. Khudari, Tarikh, p.201.]
This view finds further support from Yusuf Musa, who has tersely observed that juristic differences
over istihsan essentially amount to no more than arguments over words. For the fuqaha' of every major
school have invariably resorted to istihsan in one form or another.
[48. Musa, Madkhal, p.198.]
If this is accepted, then one naturally wonders as to the causes that might explain the controversy in
question. Al-Taftazani has observed that neither of the two sides of the controversy over istihsan have
understood one another, and that the whole debate is due to a misunderstanding. Those who argue in
favour of istihsan have perceived this principle differently to those who have argued against it. Had
istihsan been properly understood, al-Taftazani adds, its basic validity would never have been
disputed.
[49. Taftazani, Talwih, p. 82. It is not certain whether Taftazani was a Hanafi or a Shafi'i. In a bibliographical note on Taftazani, it is stated that he is
sometimes considered a Hanafi and sometimes a Shafi'i. See al-Mawsu`ah al-Fiqhiyyah, I, 344.]
Al-Taftazani's assessment has been widely endorsed by modern writers on the subject, including
Khallaf, Abu Zahrah and Yusuf Musa. In Khallaf's opinion, the essential validity of istihsan is
undeniable, for it enables a departure from the apparent or the general rule of law to a variant ruling
which warrants such a departure. Every judge and jurist must consider the circumstances of an
individual case, and occasionally decide not to apply a certain rule, or to make an exception, as he
considers this to be required by maslahah and justice.
[50. Khallaf, `Ilm, p. 83; Musa, Madkhal, p.197.]
And lastly, Abu
Zahrah observes that, 'One exception apart, none of al-Shafi'is criticisms are relevant to the Hanafi
conception of istihsan'. The one exception that may bear out some of al-Shafi'i's criticisms is istihsan
Principles of Islamic Jurisprudence ~ Kamali 230
[46.which is authorised by custom. For custom is not a recognised source of law and is, in any case, not
sufficiently authoritative to warrant a departure from qiyas.
Conclusion
[51. Abu Zahrah, Usul, p. 215.]
The attempt at linking istihsan with qiyas has involved tortuous reasoning which somehow remains less
than convincing. One way to resolve some of the juristic differences on this issue may be to go back to
the origin of istihsan and recapture the meaning that was given to it by Abu Hanifah and the early
ulema of jurisprudence. On this point there is evidence to suggest that Abu- Hanifah (d. 150/767) did
not conceive of istihsan as an analogical form of reasoning. About half a century later, when al-Shafi`i
wrote his Risalah and Kitab al-Umm, there was still little sign of a link between istihsan and qiyas. AlShafi'i
is, in fact, completely silent on this point. Had al-Shafi'i (d.204/820) known that istihsan
was a
variety
of qiyas,
one can imagine that he might have softened his stand with regard to it. Originally
istihsan
was conceived in a wider and relatively simple form which was close to its literal meaning and
free
of the complexities that were subsequently woven into it. One is here reminded of Imam Malik's
characteristic
statement which designates istihsan
as nine-tenth of human knowledge, a statement which
grasps
the true essence of istihsan
as
a method of finding better and more equitable alternatives to
existing
problems both within and beyond the confines of analogical reasoning. Istihsan
is basically
antithetic
to qiyas
and not a part of it. It enables the jurist to escape from strict conformity to the rules of
qiyas
when such conformity is likely to lead to unfair results. Istihsan
was originally formulated, not as
another
variety of qiyas,
but as a doctrine which liberated the jurist from the strait-jacket of qiyas,
especially
where conformity to qiyas
clashed with the higher objectives of the Shari'ah.
It is well to remember that much of the juristic controversy over istihsan has developed under the
pressure of conformity to the strict requirements of the legal theory once it was finally formulated by alShafi`i
and gradually accepted by others. The thrust of al-Shafi'i's effort in formulating the legal theory
of
the usul
was
to define the role of reason vis-à-vis the revelation. Al-Shafi'i confined the scope of
human
reasoning in law to analogy alone. In his well-known statement concerning ijtihad
and qiyas,
especially
where he considered the two to be synonymous, one hardly fails to notice the attempt at
confining
the use of human reasoning to qiyas
alone:
On all matters touching the life of a Muslim there is either a binding decision or an indication as to the
right answer. If there is a decision, it should be followed; if there is no indication as to the right answer,
it should be sought by ijtihad, and ijtihad is qiyas.
[52. Shafi'i, Risalah, p. 206.]
In this statement, al-Shafi`i reflected the dominant mood of his time. From that point onward, any
injection of rationalist principles into the legal theory of the usul had to seek justification through qiyas,
which was the only channel through which a measure of support could be obtained for istihsan. In order
Principles of Islamic Jurisprudence ~
Kamali 231
to justify istihsan within the confines of the legal theory, it was initially equated with qiyas and
eventually came to be designated as a sub-division of it.
The next issue over which the fuqaha' have disagreed is whether an istihsan which is founded in the
Qur'an, Sunnah, or ijma` should be called istihsan at all. In cases where a Hadith authorises departure
from an existing analogy in favour of an alternative ruling, then all that one needs to authorise the
departure in question is the Hadith itself. It would therefore seem redundant to apply the word istihsan
to this form of departure from the rules of qiyas. Whenever a ruling can be found to the Qur'an (or the
Sunnah), the jurist is obliged to follow it and should, basically, have no choice of resorting to qiyas or
to istihsan. If the Qur'an provides the choice of an alternative ruling which seems preferable, then the
alternative in question is still a Qur'anic rule, not istihsan.
It would appear that the fuqaha' initially used the term istihsan close to its literal sense, which is to
`prefer' or to deem something preferable. The literal meaning of istihsan was naturally free of the
restrictions which were later evolved by the fuqaha'. A measure of confusion between the literal and
technical meanings of istihsan probably existed ever since it acquired a technical meaning in the usage
of the jurists. This distinction between the literal and juristic meanings of istihsan might help explain
why some ulema have applied istihsan to the rulings of the Qur'an, the Sunnah, and ijma'. When we say
that the Qur'an, by way of istihsan, permitted bequests to be made during the lifetime of the testator, we
are surely not using istihsan in its technical/juristic sense - that is, giving preference to one qiyas over
another or making an exception to an existing legal norm - but merely saying that the Qur'an preferred
one of the two conceivable solutions in that particular case. When the Qur'an authorises bequests, then
one might say that it has established a legal norm in its own right regardless as to whether it can be
described as an exception to another norm or not. To regard this Qur'anic ruling as an istihsan can only
be true if istihsan is used in its literal sense. For as a principle of jurisprudence, istihsan can add nothing
to the authority of the Qur'an and the Sunnah. Although one might be able to find the genesis of istihsan
in the Qur'an, this would have nothing to do with the notion of constructing istihsan as an alternative to,
or a technique of escape from, qiyas. Furthermore, to read istihsan into the lines of the Qur'an would
seem superfluous in the face of the legal theory of the usul that there is no room for rationalist doctrines
such as istihsan in the event that a ruling can be found in the nusus.
Notwithstanding the fact that many observers have considered Abu'l-Hasan al-Karkhi's definition to be
the most acceptable, my enquiry leads to the conclusion that the Maliki approach to istihsan and Ibn al`Arabi's
definition of it, is wider in scope and probably closest to the original conception of istihsan,
for
it
does not seek to establish a link between istihsan
and qiyas.
Istihsan has undoubtedly played a significant role in the development of Islamic law, a role which is
sometimes ranked even higher than that of qiyas. Notwithstanding a measure of reticence on the part of
the ulema to highlight the role of istihsan, it in reality features most prominently in bridging the gap
Principles of Islamic Jurisprudence ~
Kamali 232
between law and social realities by enabling the jurist to pay individual attention to circumstances and
the peculiarities of particular problems. But for reasons which have already been explained, the fuqaha'
have exercised restraint in the use of istihsan, which, as a result, has not been utilised to the maximum
of its potential. Hence, it is not surprising to note that a certain gap between theory and practice has
developed in Islamic Law.
[53. Joseph Schacht has devoted a chapter to the subject, entitled `Theory and Practice' where he elaborates on how the
gap between the law and social realities has widened: An Introduction, pp.76-86.]
The potentials of istihsan could hardly be
translated into reality unless istihsan is stripped of its unwarranted accretions. The only consideration
that needs to be closely observed in istihsan is whether there exists a more compelling reason to warrant
a departure from an existing law. The reason which justifies resort to istihsan must not only be valid in
Shari`ah but must serve a higher objective of it and must therefore be given preference over the existing
law which is deemed unfair. Since istihsan enables a choice between alternative solutions, it
contemplates the relative merits and demerits of each of the alternatives. The existing law is always the
base to which an alternative is devised through istihsan. In this sense, istihsan offers considerable
potential for innovation and for imaginative solutions to legal problems. The question in istihsan is not
merely to find a solution to a particular problem but to find a better solution to the one which already
exists. It therefore calls for a higher level of analysis and refinement which must in essence transcend
the existing law and analogy.
The potential for new alternatives in istihsan would thus be considerably restricted if it were to be
subjected to the requirements of qiyas. The two are essentially designed for different purposes and each
must be allowed to function in its best capacity. Analogy essentially extends the logic of the Qur'an and
the Sunnah, whereas istihsan is designed to tackle the irregularities of qiyas. Thus it would seem
methodologically incorrect to amalgamate the two into a single formula.
Istihsan has admittedly not played a noticeable role in the legal and judicial practices of our times. It
has, as it were, remained in the realm of controversy, which may partly be explained by the dominance
of the phenomenon of taqlid in shaping the attitude of lawyers and judges towards istihsan. Only the
rulings of the jurists of the past have been upheld on istihsan, and even this has not been totally free of
hesitation. Muslim rulers and judges have made little or no use of istihsan either in developing the
existing law or in the day-to-day administration of justice. This is patently unjustified, especially in
view of the eminent suitability of istihsan in the search for fair and equitable solutions.
Istihsan can best be used as a method by which to improve the existing law, to strip it of impractical
and undesirable elements and to refine it by means of making necessary exceptions. Istihsan, in other
words, generally operates within the confines of the legal status quo and does not seek a radical change
in the existing law, although it has considerable potential to effect innovation and refinement.
Judges and lawyers are generally reluctant to depart from the existing law, or to make exceptions to it,
even in the face of evidence to the effect that a departure would be in the interests of fairness and
Principles of Islamic Jurisprudence ~
Kamali 233
justice. Their reluctance is often due to the reticence in the law as to precisely what role the judge has to
play in such a situation. Judges are normally expected to enforce the law at all costs, and often have
little choice in the matter regardless of the circumstances or results. Alternatively, it may be that the
judges are, in fact, doing this- departing from the law when it seems patently unfair - without openly
acknowledging what they are doing. In any case, it world seem advisable if the legislature explicitly
authorised the judge to resort to istihsan when he considers this to be the only way of achieving a fair
solution in a case under consideration. In this way, istihsan would hopefully find a place in the day-today
administration of justice and would consequently encourage flexibility and fairness in law and
judicial
practice. Judicial decisions would, in turn, influence legislation and contribute towards attaining
a
more refined and equitable legal order. A clear and well-defined role for istihsan
would
hopefully
mark
a new opening in the evolutionary process of Islamic law.
Principles of Islamic Jurisprudence ~
Kamali 234
Chapter Thirteen: 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.
[1. Khallaf, 'Ilm, p. 84; Badran Usul, p. 209.]
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.
[2. Ghazali, Mustasfa, I, 139-140.]
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.
[3. Badran, Usul, p. 210; Sabuni, Madkhal, p. 131.]
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.
[4. Khallaf, 'Ilm, p. 84.]
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.
[5. Badran, Usul, p. 210; Sabuni, Madkhal, p. 134.]
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.
[6. Shatibi, Muwafaqat, II, 2-3; Sabuni, Madkhal, p. 134.]
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
Principles of Islamic Jurisprudence ~
Kamali 235
be able to act in pursuit of the masalih as and when these present themselves.
211.]
[7. Khallaf, 'Ilm, p. 84; Badran, Usul, p.
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.'
[8. Cf. Shatibi, Muwafaqat, II, 3; Mustafa Zayd, Maslahah, p. 25.]
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 ahadith 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'.
[9. Ibn Majah, Sunan, Hadith no 2340.]
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.
[10. Khallaf, `Ilm, p.90; Abu Zahrah, Usul, p. 222.]
Najm alDin
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'.
[11. Muslim, Sahih Muslim, p.412, Hadith no. 1546.]
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.'
Sunan ( Hasan's trans.), III, 1020, Hadith no 3587.]
Principles of Islamic Jurisprudence ~ Kamali 236
[12. Abu Dawud,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.'
[13. Ibn al-Qayyim, I'lam, II, 242; Mustafa Zayd, Maslahah, p. 120.]
'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.
[14. Shatibi, I`tisam, II, 287; Khallaf, `Ilm, p.86.]
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.
[15. Ibn al-Qayyim, I`lam, I, 185; Abu Zahrah, Usul, pp. 222-223; Mustafa Zayd, Maslahah, p. 52.]
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.
[16. Shatibi, I'tisam, II, 292, 302; Ibn al-Qayyim, I`lam, I, 182; Abu Zahrah, Usul, p. 223.]
In a similar vein, the ulema
Principles of Islamic Jurisprudence ~
Kamali 237
detention and ta`zir for want of evidence of a person who is accused of a crime.
`Ilm, p.86, Abu Zahrah, Usul, p. 223.]
[17. Shatibi, I`tisam, II, 293. Khallaf,
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.'
16.]
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.
3. When the maslahah is compatible with the objectives of the Lawgiver (maqasid al-shari`) or
Principles of Islamic Jurisprudence ~ Kamali 238
[18. Ibn al-Qayyim, Turuq, p.
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.
4.
5. When maslahah is of the genus of the approved masalih and is not upheld, the likely result
6.
7.
would be to inflict hardship on the people, which must be prevented.
Zahrah, Usul, p. 223.]
Types of Maslahah
[19. Shatibi, I`tisam, II, 282-287; Abu
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.
[20. Shatibi, Muwafaqat, II, 3-5; Badran, Usul, p. 208.]
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.
[21. Shatibi, Muwafaqat, II, 5; Mustafa Zayd, Maslahah, pp.54-55.]
The `embellishments' (tahsiniyyat, also known as karahiyyah) denote interests whose realisation lead 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 attaining 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.
[22. Shatibi, Muwafaqat, II, 27ff.]
From the viewpoint of the availability or otherwise of a textual authority in its favour, maslahah is
farther 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.
[23. Khallaf, 'Ilm, p. 84; Badran, Usul, pp. 209-10.]
Principles of Islamic Jurisprudence ~
Kamali 239
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.
p. 85; Badran, Usul, p. 215.]
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 clear
nass 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).
[25. Badran, Usul, p. 209.]
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
Principles of Islamic Jurisprudence ~ Kamali 240
[24. Khallaf, 'Ilm,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.
[26. Khallaf, 'Ilm, p. 86.]
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 m the community.
[27. Abu Zahrah, Usul, p. 220.]
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.
[28. Khallaf,`Ilm, p.87; Badran, Usul, p. 214.]
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.
[29. Abu Zahrah, Usul, p. 219; Badran, Usul, p. 215.]
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.
[30. Shatibi, I`tisam, II, 307-14; Mustafa Zayd, Maslahah, p.51.]
Furthermore, according to al-Ghazali, maslahah, in order to be valid, must be essential (al-maslahah 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.
[31. Ghazali, Mustasfa, I, 141.]
However the weakness of al-Ghazali's argument appears to be that
Principles of Islamic Jurisprudence ~
Kamali 241
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
[32. Badran. Usul, pp. 215-16.]
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.
[33. Tufi, Masalih, p.139.]
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.
Maslahah, pp. 238-240. This book is entirely devoted to an exposition of Tufi's doctrine of Maslahah.]
[34. Tufi, Masalih, p. 141; Mustafa Zayd,
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.
Zahrah, Usul, p. 223. A discussion of Tufi's doctrine can also be found in Kerr, Islamic Reform, p. 97ff.]
[35. Cf. Mustafa Zayd, Maslahah, p. 121; Abu
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.
[36. Tufi, Masalih, p.141; Mustafa Zayd, Maslahah, p. 131-132.]
In short, al-Tufi's doctrine,
as Mahmassani has observed, amounts to saying after each ruling of the text, 'Provided public interest
Principles of Islamic Jurisprudence ~
Kamali 242
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