Maslaha

Maslaha or maslahah (Arabic: مصلحة‎, lit. 'public interest') is a concept in shari'ah (Islamic divine law) regarded as a basis of law.[1] It forms a part of extended methodological principles of Islamic jurisprudence (Uṣūl al-fiqh), and denotes prohibition or permission of a thing according to necessity and particular circumstances, on the basis of whether it serves the public interest of the Muslim community (Ummah).[1][2] In principle, maslaha is invoked particularly in cases that are not regulated by the Qur'an, the Sunnah (the teachings and practices of the Islamic prophet Muhammad), or qiyas (analogy). The concept is acknowledged and employed to varying degrees depending on the jurists and schools of Islamic jurisprudence (maddhab). The application of the concept has become more important in modern times because of its increasing relevance to contemporary legal issues.[1]

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Overview

The concept was first clearly articulated by al-Ghazali (d. 1111), who argued that maslaha was God's general purpose in revealing the divine law, and that its specific aims was preservation of five essentials of human well-being: religion, life, intellect, offspring, and property.[3] Although most classical-era jurists recognized maslaha as an important legal principle, they held different views regarding the role it should play in Islamic law.[4][5] Some jurists viewed it as auxiliary rationale constrained by scriptural sources and analogical reasoning.[4][6] Others regarded the concept as an independent source of law, whose general principles could override specific inferences based on the letter of scripture.[4][7] While the latter view was held by a minority of classical jurists, in modern times it came to be championed in different forms by prominent scholars who sought to adapt Islamic law to changing social conditions by drawing on the intellectual heritage of traditional jurisprudence.[4][8][9] Along with the analogous concept of maqasid, it has come to play an increasingly prominent role in modern times, due to the need of confronting legal issues unknown in the past.[1][4][9][5]

There are several other equivalent or analogous concepts in Uṣūl al-fiqh, some of each associated with respective maddhabs. The concept of maqasid (aim or purpose) is comparable in a sense that both connote the ultimate objective and goal of the application of the shari'ah. The concept of istislah is a related subject which is employed by Imam Ahmad ibn Hanbal.[1] While the meaning of maslaha is "public interest", the meaning of istislah is "to seek the best public interest"— the Sharia's object and purpose.[10] The concept of istihsan means equitable preference for finding solutions to the legal issues. This term is used by the Hanafi school of law, and according to the understanding, it is possible to override the results of qiyas when it is considered harmful or undesirable. The term was also used by the Hanbali scholar Ibn Qudamah as well as the Maliki jurist Averroes. While the Shafi'i school does not recognize the application of maslaha as it may open the door to the unrestricted use based on fallible human opinions, they have a concept corresponding to maslaha which called istidlal, induced when it is necessary to avoid the strict application of qiyas.[1]

Usage

Maslaha was used in one sense by the Andalusian lawyer al-Shatibi (d. 1388), who focused on the motivations behind the Islamic law. Regarding questions related to God, 'ibadat, humans should look to the Qur'an or the Sunnah for answers, but regarding the relationship between humans, mu'amalat, humans should look for the best public solution. Since societies change, al-Shatibi thought that the mu'amalat part of the Islamic law also needed to change.[11]

Maslaha has also been used by several Muslim reformers in recent centuries. Ibn Abd al-Wahhab (d. 1792) used maslaha in a few cases. The concept is more known to Islamic modernists. Among them, Muhammad Abduh is especially recognized for using the concept of maslaha as the basis for reconciling modern cultural values with the traditional moral code of Islamic law in the late 19th century. The Muslim Brotherhood, an Islamic fundamentalist group, also invokes maslaha to explain their commitment to public welfare.

See also

References
  1. I. Doi, Abdul Rahman. (1995). "Mașlahah". In John L. Esposito. The Oxford Encyclopedia of the Modern Islamic World. Oxford: Oxford University Press.
  2. Abdul Aziz bin Sattam (2015). Sharia and the Concept of Benefit: The Use and Function of Maslaha in Islamic Jurisprudence. London: I.B.Tauris. ISBN 9781784530242.
  3. Opwis 2007, p. 65.
  4. Duderija 2014, pp. 2–6.
  5. Gleave 2012.
  6. Opwis 2007, pp. 66–68.
  7. Opwis 2007, pp. 68–69.
  8. Ziadeh 2009.
  9. Brown 2009.
  10. John L. Esposito (2003). The Oxford Dictionary of Islam. Oxford University Press. ISBN 9780199757268.
  11. Knut S. Vikør (2005). Between God and the Sultan: A History of Islamic Law. Oxford University Press. ISBN 9780195223989.
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