The document discusses the concept of maslahah mursalah in Islamic jurisprudence. It defines maslahah mursalah as unrestricted public interest that has not been explicitly regulated by the lawgiver. The document outlines the views of different jurists on when istislah (public interest) can be used as a basis for legislation. It also discusses the conditions for a maslahah to be valid, such as being genuine, general, and not in conflict with clear religious texts or scholarly consensus. Finally, it categorizes different types of maslahah - those upheld by the lawgiver, nullified by the lawgiver, and unrestricted maslahah murs

1. Maslahah
Mursalah
Nelfi Amiera Mizan
Multimedia University

2. Introduction
Definition:
 Root word  salaha or saluha which is to be good, to repair or
toimprove
 Maslahah means benefit or interest.
 Maslahah Mursalah (MM)  it refers to unrestricted public interest in
the sense of its not having been regulated by the Law giver insofar as no
textual authority can be found on its validity or otherwise
Al-Ghazali  Maslahah consists of considerations which secure a benefit or
prevent harm but are in the meantime, harmonious with the objectives of the
Shari’ah
 Objective of Shariah  Protecting 5 ‘essential values: religion,
life,intellect, lineage and property’
 The concept of maslahah has a very close relationship with maqasid al-shariah
as MS are defined briefly as obtaining maslahah (benefit) and
preventing mafsadah(evil).
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3. Juristic View
Majority of ‘ulama:
 Istislah is a proper ground for legislation when a maslahah is identified.
When the maslahah is identified and the mujtahid does not find an
explicit ruling in the nusus, he must act in its pursuit by taking the
necessary steps to secure it
Imam Malik:
 The main support for istislah as a proof and basis of legislation
1. The Companions have validated it and have formulated the rules of
Shariah on its basis.
2. When the maslahah is compatible with the objectives of the Lawgiver
(maqasid al-shari`) or falls within the genus or category of what the
Lawgiver has expressly validated, it must be upheld. For neglecting it
under such circumstances is tantamount to neglecting the objectives
of the Lawgiver, which is to be avoided. Hence maslahah as such is a
norm of the Shari ah in its own right; it is by no means extraneous to
the Shari `ah but an integral pair of it.
3. When maslahah is of the genus of the approved masalih and is not
upheld, the likely result would be to inflict hardship on the people,
which must be prevented.
Al-Tufi’: A prominent Hanbali jurists-
 Authorises alternative to maslahah with or without the existence of a
nass. He argues that the hadith la dharar wa ladhirar enables the
maslahah to take precedence over all other considerations. However, he
precludes devotional matters, specific injunction and prescribed
penalties from the scope of maslahah. These matters can only be
established by nass and ijma’.As for transaction and temporal affairs- if
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4. the text conform the maslahah of the people, they should be applied
forthwith, but if they oppose, the maslahah should take precedence
over them.
 Istislah is not a proof in respect of devotional matters (‘ibadah) and the
specific injunctions of the Shari’ah
 Example: Hudud penalties, kaffarat, entitlement in inheritance, specified
period of iddah and number of raka’at in solat.
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Multimedia University

5. Proof of MM
• Surah Al Anbiya’ : 107
“We hv sent you but a mercy for all creatures”
• Surah Yunus : 75
“O mankind, a direction has come to you from your Lord, it is a healing for the
ailments in your hearts..”
 The message for these 2 phrases here exceeds all barriers that divide the
humanity; none must stand on the way of seeking mercy & beneficence
to human beings.
• Surah Al Maidah : 6
“God never intends to impose hardship upon ppl”
 God also described that His purpose in the revelation of religion of Islam
is not a means of imposing hardship.
• Sunnah/Hadeeth :
“harm is neither inflicted nor tolerated in Islam.”
• Sunnah/Hadeeth :
“The Prophet did not choose but the easier of the two alternatives so long as it
did not amount to a sin.”
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6. • Sunnah/Hadeeth :
“Muslims are bound by their stipulations unless it be a condition which turns a
haram into halal or a halal into haram.”
 Based on these hadeeths seems to grant muslims the liberty to pursue
their benefits & to commit themselves to that effect provided that this
does not amount to a violation of the explicit commands & prohibitions of
the Syariah.
• Sunnah/Hadeeth :
“God loves to see that His concessions (rukhas) are observed in the same way
that His strict laws are obeyed.”
 It is confirmed that no unnecessary rigour in the enforcement of the
ahkam(rulings) is recommended, & that the Muslims should avail
themselves of the flexibility & concessions that the Lawgiver has granted
them & to utilize such in pursuit of the masalih.
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Multimedia University

7. Types of Objective of Shariah
1. ESSENTIALS/NECESSITIES VALUE (DARURRIYAT)
• 5 essential value (al dharuriyyat al khamsah)s i.e. religion, life,
intellect, lineage & property – must not only be promoted but also
be protected against any real or expected threat which undermine
their safety. To uphold the faith would thus require observance of
the prescribed forms of ibadat(ritual), whereas the safety of life and
intellect is secured by obtaining lawful means of sustenance as well
as the enforcement of penalties which the Shariah has provided so
as to protect them against destruction and loss.
2. COMPLEMENTARY VALUE (HAJIYYAT)
• The whole supplementary to the 5 essential values & they refer to
interests whose neglect leads to hardship in the life of the
community although not to its collapse. Thus in the area of ibadat
the concessions that the Shariah has granted to the sick & to the
traveler not to observe the fast, & shorten the solat,(prayer) are
aimed a preventing hardship.
3. EMBELLISHMENTS VALUE (TAHSINIYYAT)
• refers to interests who realization leads to improvement & the
attainment of that which is desirable. Thus the observance of
cleanliness in personal appearance & ibadat, moral virtues,
avoiding extravagance in consumption & moderation in the
enforcement of penalties fall within the scope of tahsiniyyat.
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Multimedia University

8. Condition of MM
1. The maslahah must be genuine (haqiqiyyah), as opposed to a false
maslahah (maslahah wahmiyyah), which is not a proper ground for
legislation.
 A mere suspicion or specious conjecture (tawahhum) that a certain
legislation will be beneficial without ascertaining the necessary balance
between its possible benefits and harms is not sufficient. There must, in
other words, be a reasonable probability that the benefits of enacting a
hukm in the pursuance of maslahah outweigh the harms that might
accrue from it.
An example of a specious maslahah According to Khallaf, would be to
abolish the husbands right of talaq by vesting it entirely in a court of law.
 Genuine masalih are those which contemplate the protection of the five
essential values noted above.
An example, protecting the faith  necessitates the prevention of sedition
(fitnah) and of the propagation of heresy.
An example, protecting religion It also means safeguarding freedom of
belief in accordance with the Quranic principle that there shall be no
compulsion in religion (al-Baqarah, 2:256)
An example, protecting life  protecting the means which facilitate an
honourable life such as the freedom to work, freedom of speech, and
freedom to travel.
An example, protecting intellect (`aql)  necessitates the promotion of
learning and safeguards against calamities which corrupt the individual and
make him a burden to society.
An example, protecting lineage  entails protection of the family and
creation of a favourable environment for the care and custody of children.
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9. An example, protection of property  requires defending the right of
ownership. It also means facilitating fair trade and the lawful exchange of
goods and services m the community.
2. Maslahah must be general (kulliyyah)
 In that it secures benefit, or prevents harm, to the people as a whole and
not to a particular person or group of persons. This means that enacting
a hukm on grounds of istislah must contemplate a benefit yielded to the
largest possible number of people. It is not maslahah if it secures the
interest of a few individuals regardless of their social and political status.
The whole concept of maslahah derives its validity from the idea that it
secures the welfare of the people at large.
3. Maslahah must not be in conflict with a principle or value which is up
held by the nass or ijma`.
 Hence the argument, for example, that maslahah in modern times would
require the legalization of usury (riba) on account of the change in the
circumstances in which it is practiced, comes into conflict with the clear
nass of the Quran. The view that riba in the way it is practiced in modern
banking does not fall under the Quranic prohibition, as Abu Zahrah
points out, violates the nass and therefore negates the whole concept of
maslahah.
4. Imam Malik has added two other conditions
 the maslahah must be rational (ma `qulah) and acceptable to people of
sound intellect.
 must prevent or remove hardship from the people, which is the express
purpose of the Quranic ayah in sura al-Maidah (5:6) quoted above.
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10. 5. 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. I f the
situation is such that the safety of all the Muslims and their victory
necessitates the death of the hostages, then al-Ghazali permits this in
the name of al-maslahah al-daruriyyah.
 However the weakness of al-Ghazalis argument appears to be that the
intended maslahah in this example entails the killing of innocent
Muslims, and the Shariah provides no indication to validate this
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Multimedia University

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