MASLAHAH

Batoota — Sun, 03 Aug 2014 14:36:16 +0000

MASLAHAH. Public interest (al-masalih almursalah) is regarded in shari `ah (the divine law) as a basis of law. According to necessity and particular circumstances, it consists of prohibiting or permitting a thing on the basis of whether or not it serves a “useful purpose” or maslahah. It can be defined as the establishment of legal principles recommended by reason of being advantageous. The jurists of different schools have used different Arabic words to describe it. Imam Malik calls it al-masalih al-mursalah, that is, the public benefit or public welfare. The Arabic word mursalah literally means to set’ loose from the texts, and masalih means welfare. The Hanafis call it istihsan, meaning equitable preference to find a just solution. It consists of disregarding the results of qiyas (analogy) when it is considered harmful or undesirable to meet the strict demands of theory, for example, where a strict qiyds would lead to an unnecessarily harsh result. The Hanbali scholar Ibn Qudamah as well as the Malik! jurist Ibn Rushd also have occasionally used the term istihsdn. Imam Ahmad ibn Hanbal calls it istisldh, meaning seeking the best solution for the general interest of the Muslim community. Unprecedented interests should be supported and protected so long as they fulfill the following conditions: they should not be related to religious observances; they should not be in conformity with shari `ah; it should be a necessity and not a luxury. The only school that does not recognize istislah as a source is the Shafi’i school. According to Imam Shafi’i, if this is allowed, it can open the door to the unrestricted use of fallible human opinions, since the public interest will vary from place to place and from time to time. The concept of public interest can be very helpful particularly in cases that are not regulated by any authority of the Qur’an, the sunnah, or qiyds. In that case, equitable considerations can override the results of strict qiyas, taking into consideration the public interest. Shafi’i jurists have employed istidlal to achieve similar results by avoiding merely the application of strict qiyds. Istidlal is the process of seeking guidance, basis, and proof from the sources through deduction, although its dictionary meaning is merely “argumentation.” As examples of juristic decisions based on maslahah, two juristic decisions of Imam Malik ibn Anas are listed: (I) the Muslim ruler can exact additional taxes from wealthy citizens in periods of emergency; (2) sale of grapes (which is otherwise legal) is prohibited to a wine merchant. Since contemporary fiqhi (legal) issues have arisen, it is important to evaluate the role al-masalih al-mursalah can play to make life easier for ordinary Muslims who must confront legal issues unknown in the past. The first step in dealing with present-day legal problems is to establish the proper context for interpreting the nass (“text”; explicit provision of the Qur’an or prophetic tradition) with a view to operate al-masalih al-mursalah. I do not mean by “context” mere perspective, which focuses on the angle of vision of the interpreter of the nass. In fact, context refers to the environment of what is being interpreted. With masdlih of the ummah (community) in mind, fuqaha’ (jurists) can add the perspective of fiqh (jurisprudence) to create a bridge to the modern scientific age and interpret not only the nass but also the very spirit of the nass. Each new generation of interpreters of the Qur’an and the sunnah, particularly the fuqahd’, will faithfully interpret the dyah (verse of the Qur’an) and the hadiths (prophetic traditions) for renewed illuminations on such new issues as using gelatin in the preparation of sweets and marmalade or adding certain animal products to cheese and margarine. In the best interests of the community, jurists have examined the molecular structure of gelatin both in its original form and after being processed before it can be used. They have noticed that the original structure of the substance changed while being processed. In juristic terms, this phenomenon is called qalb al-mdhiyah (changing of the very property of the substance). Since a new substance has been formed, its consumption is considered permissible. The interpretation of nass does not and should not restrict the interpreter to any one particular exegetical method to arrive at certain solutions to modern-day problems. Attempts to interpret and apply the spirit of the nass on various new issues, such as blood transfusion and organ transplant involving non-Muslims, became to some legal scholars an offense, as they insisted that nass must be understood in a particular context. The fiqh academy, with its headquarters in Mecca, offered solid liberal legal alternatives to make life easier for Muslims in the modern age; for example, blood transfusion and organ transplants were adjudged mubah (permissible), considering that human life is sacred and that as human beings we must not remain silent spectators to human suffering, or even the suffering of animals, as can be vouchsafed from the sunnah of the Prophet. Muslim minorities in non-Muslim lands will also have resort to juristic principles of maslahah, since the ruling power of their land operates a political system based on principles different from those that govern the running of an Islamic state, laid down by the Muslim jurists in such books as Ahkam al-sultaniyah and many others. In the case of democracy, elections are held where Muslim citizens are encouraged to vote. Some `ulama’ (religious scholars) have opined that since the ruling system is one of disbelief, Muslims may not participate in an election. Others apply the principle of maslahah. They concede that the political structure is bdtil (based on falsehood and thus null and void) but also accept that it is an existing reality that elections will take place and certain candidates or parties will assume power. These scholars have therefore defined the exact nature and implication of voting. The casting of the vote can be interpreted as a form of shahddah (giving testimony). By voting for a certain candidate or party, the voters are indirectly testifying to the credibility of that candidate or party. Voting can also be viewed from the angle of shafa’ah (intercession). The voter is thus interceding for a party to come into power that is most likely to safeguard Islamic rights in particular and human rights in general. Voting is also explained as a form of representation. When one votes for a certain party, one is in essence appointing that party as a representative for one’s Islamic and human rights. Voting is also a form of mashwarah (consultation). The voter is giving an opinion on who should be elected to run the government. Thus, purely shari (juristic) equivalents such as shura (counsel), shahddah, and shafa`ah are linked to some aspects of the nature of voting. Similarly, the concept of modern banking seems to be somewhat foreign to the sections of fiqh dealing with buyu` (commerce). Banks are, however, an indispensable part of modern-day commerce. Muslims find it necessary to deal with these financial institutions in their day-to-day affairs. Banks are usually interest based, although Islam is strongly opposed to an interest-based economy with its resultant financial oppression. This situation puts the Muslim in a dilemma. With the principle of maslahah (best interest) in mind, the fugahd’ have thus promoted the idea of “Islamic banking,” which runs on the principles of sharikah and muddrabah. The dividends an investor receives are not from interest but from joint participation with the bank in various investment schemes. Apart from these few examples, there are issues, such as those dealing with birth control, abortion in the case where the mother’s life is in danger, artificial insemination, adoption of children, or inheritance of a child whose father has died in the lifetime of the grandfather, which can be addressed afresh to find meaningful solutions. It would be a mistake to identify the fuqaha’ of the past as too conservative or too orthodox and the fugahd’
of the present time as modern, but it is fair to say that the jurists of the past simply did not have to confront the issues that Muslims face in the modern scientific and technological age. The Qur’an and sunnah were read, understood, and interpreted in the past in a certain setting, and then are read and interpreted in a different setting today. It is unfair to say that the earlier setting in which the `ulama’ and fugahd’ worked is irrelevant for later generations. The historical continuity of the Muslim background offers a historical rationale to face new challenges-for the religion of Islam is for the past, present, and future, and so is fiqh and its usul. BIBLIOGRAPHY Doi, Abdul Rahman 1. Shariah: The Islamic Law. Kuala Lumpur, 1989. Ghazali, Abu Hamid al-. Al -Mustasfa min `ilm al-usul. Cairo, 1937 ABDUL RAHMAN I. Doi

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MASLAHAH