DefinitionTaken from the root word salaha () or saluha which is to be good, to repair or to improve.Istislah () is a method employed by the Muslim jurists to solve problems that find no clear answer in sacred religious text. Maslahah means benefit or interest.

So Istislah involves the acquisition of benefit and repulsion of the harm to the public based on the benefit or interest that will be enjoyed by the public.From many contexts economy, legal, procedures, medical etc.

Definition by al-GhazaliMaslahah consists of considerations which secure a benefit or prevent harm but are in the meantime, harmonious with the objectives of the Shariah ( ) - Protecting 5 essential values: religion, life, intellect, lineage and propertyThe 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)

Any measures which secure these values falls within the scope of maslahah and anything violates them is called mafsadah(). Preventing mafsadah is also maslahah.

Juristic viewsMajority of ulama:-Istislah is a proper ground for legislation when a maslahah is identifiedIstislah is not a proof in respect of devotional matters (ibadah) and the specific injunctions of the Shariah (muqaddarat)Hudud penalties

KaffaratEntitlement in inheritanceSpecified period of iddahNumber of rakaat in solat

TYPES OF MASLAHAH

DHARURIYYAT(ESSENTIAL)

TAHSINIYYAT(EMBELLISHMENT)

HAJIYYAT(COMPLEMENTARY)Masalih on which the lives of the peopledepend and their neglect leads to total distruption and chaos. Consist of five essential maslahah namely: religion,life, intelect (mind), lineage and property.Must be promoted and protectedSupplementary to the five essential values whose neglect leads to hardship in the life of the community although not to its collapse.E.g the concession ()granted to the sick people, elderly and traveller not to observe fast and shorten the prayer.Refers to interest whose realisationleads to improvement and the attainment of that which is desirable.E.g. the observance of cleanliness inpersonal appearance and ibadah.Avoiding extravagance in consumptionIn general:The embellishments refer to those interests that, if realized, would lead to refinement and perfection in the customs and conduct of people at all levels of achievement.they are needed to alleviate hardship so that life may be free from distress and predicament.

MUTABARAHMURSALAHMULGHAHFrom the viewpoint of the availability or otherwise of a textual authority in its favourMaslahah is divided into;

Maslahah MutabarahMaslahah which the Law Giver has expressly upheld and enacted a law for its realisation.Protecting life by enacting the law of retaliation 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. (Maslahah dharuriyyah)

The lawgiver has upheld that each offence constitute proper ground for punishment in question.The validity of maslahah in these cases is definitive () and no longer open to debate.

Shortening and combining of prayers or break fasting when travelling parts of rukhsah maslahah hajiyyahPolygamy?Written agreement/contract?

Maslahah MulghahIt is a maslahah which the Lawgiver has nullified either explicitly or by indication that could be found in the shariah.Ulama agree that legislation in pursuant of such interests is invalid and no judicial decree maybe issued in their favour

Example:An attempt to give the son and daughter equal share in inheritance on the assumption that this will secure a public interest. Since theres a clear nass in the Quran which assigns to the son double the portion of the daughter, the maslahah in this case is clearly nullified.

Right to divorceSome said it should also be given to the wife because of maslahahIs there a maslahah?Maslahah mulghah.

Maslahah MursalahMaslahah which has been validated after the divine revelation came to an end.MM is unrestricted public interest in the sense of it not having been regulated by the Lawgiver insofar as no textual authority can be found on its validity or otherwise.The Lawgiver has neither upheld nor nullified the necessary legislation.

More technically, MM is defined as a consideration which is proper and harmonious with the objectives of the Lawgiver; it secures a benefit and prevents a harm; and the Shariah provides no indication as to its validity or otherwise.

Authority of MMSurah al-Anbiya (21):107 We have not sent you but a mercy for all creatures ( )Surah al-Maidah : 6God never intends to impose hardship upon people. ( )

Hadith: La dharar wa la dhirar fil Islamharm is neither inflicted nor tolerated in IslamThe hadith encompasses the essence of maslahah in all varieties

Legal maxims that are related to the hadith and relevant as authority for maslahah mursalah: a specific harm is tolerated in order to prevent a more general one.( )Harm is eliminated to the extent that is possible( )

A greater harm is eliminated by means of a lesser harm( )Neccessity makes the unlawful lawful( ) Eg: jurists validate demolition of an intervening house to prevent the spread of fire to adjacent buildingValidating the dumping of the cargo of an overloaded ship to prevent the danger to the life of its passengers.

Sayyiditina Aishah said:The Prophet did not choose but the easier of the two alternatives so long as it did not amount to a sin.Practice of companions

Examples of maslahah mursalah introduced by companions:Introduction and the use of currencyEstablishment of prisonImposition of tax (kharaj) on agricultural lands in the conquered territories despite absence of textual authority.

Other examples of MMThe collection and compilation of al-Quran in a single volumeThe introduction of land taxThe right to inheritance of a woman whose husband had divorced her during death sickness

War on those who refused to pay zakatNomination of Umar to replace Abu Bakar as caliphThe ruling of Umar that his officials must be accountable for the wealth they had accumulated in abuse of public office and expropriation of such wealth

Establishment of an organised military force department or defence ministry (Diwan al-Jund) and Diwan al-Ata (sort like ministry of finance) but to distribute money to the public established by Sayyidina UmarAdministration of justice

Conditions of MaslahahThe maslahah must be genuine (haqiqiyyah)Protecting the faith necessitates prevention of sedition (fitnah) and propagation of hearsayProtecting intellect promotion of learning, providing educationProtecting of lineage creation of favourable environment for care and custody of childrenProtecting property facilitating fair trade and lawful exchange of goods and services in the community.

Examples: registration of marriage in the court and the issue of marriage certificatethe recording of land transfer in the Registry departments - prevents false testimony and fraudulent land transfer.consumer protection lawday care centers at the government offices and agenciesregulation on wearing of helmets and fastening of seatbelt.

The maslahah must be general (kulliyyah)It secures benefit or prevent harms to the people as a whole and not to a particular person or group of personsAcquisition of land for the purpose of development?Minimum age for marriage

Not in conflict with the nusus? - the legalisation of usury (riba) on account of the change in circumstances?Is there any maslahah?Conflict? Yes; its practice comes into conflict with the clear nass of the Quran

Working as a bartender? Waiter/waitress serving khamr?Prostitution as an occupation?Is there maslahah? Protecting life?Conflicting with nusus?

ContinueImam Malik added two other conditions:Maslahah must be rational and acceptable to the people of sound intellect.Must prevent or remove hardship from the people

ContinueAl-Ghazali only permits maslahah al-dharuriyyah and fulfilled three elements; darurah (necessity), qat'iyyah (absolute certainty) and kuliyyah (universality).

Al-Ghazali illustrated a classical example from the law of war whereby some Muslims were kept captives and used as human shield.Muslim soldiers encounter predicament whether:to attack unbelievers' army who were shielding themselves with a group of Muslim captives; or to refrain from attacking.

The first course of action would kill the innocent Muslims whereas the second would give opportunity to the unbelievers to conquer more Muslim territory. In such a situation, al-Ghazali thought that the Muslim soldiers should attack the unbelievers in view that the action would preserve a more important maslahah. In addition, the attack is considered daruri because it protects Muslim life, qat'i as it the only method of saving Muslims and kulli because it takes consideration of the whole community (al-Ghazali, 1993, p. 177).His view was rejected by majority of Muslim jurists

Al-Tufis view of maslahah al-mursalahA prominent Hanbali jurists- authorises recourse to maslahah with or without the existence of a nass. He argues that the hadith la dharar wa la dhirar enables the maslahah to take precedence over all other considerations.

ContinueHowever, he precludes devotional matters, specific injunction and prescribed penalties from the scope of maslahah.These matters can only be established by nass and ijma

ContinueAs for transaction and temporal affairs- if the text conform the maslahah of the people, they should be applied forthwith, but if they oppose, the maslahah should take precedence over them.

ContinueIn the areas of transactions and temporal affairs including governmental affairs, maslahah constitutes the goals.When there is a conflict between a maslahah and nass, the hadith la dharar wa la dhirar must take priority.

Similarities of MM and QiyasThey are applicable to cases on which there is no clear ruling available in nusus or ijmaThe benefit that is secured by recourse to them is based on probability

DifferencesMaslahah Mursalahthe benefit which is sought through MM has no specific basis in the established law whether in favour or against.QiyasThe benefit which is secured by Qiyas is founded in an indication from the Lawgiver and a specific illah is identified to justify the analogy to the nass

Differences between MM and IstihsanMaslahah MursalahThe ruling which is based on MM is original in the sense that it does not follow, or represent a departure from, an existing precedentIstihsanIt only applies to cases on which there is a precedent available (usually in the form of Qiyas), but Istihsan seeks a departure from it in favour of an alternative ruling in a form of a hidden analogy or an exception to a ruling of existing law

RELATIONSHIP BETWEEN QIYAS, ISTIHSAN AND ISTISLAH (MM)

Maslahah in modern timeExamples:The law on road safetyThe law on wearing helmetThe requirement on identification cardThe HIV test before marriageNeedle and Syringe Exchange Programme

Pre marital courseMarriage certificatewearing bangle/bracelet/neclace for male pilgrimsSeparate coach/section for women in public transport

Islamic Banking system and productsIncrease in the price of cigarettesISA?Income taxInsuranceManufacturing contract

Business contracts through modern telecommunicationPayment by installmentWarranty on purchased goodsPermission from the first wife before a man can marry a second or subsequent wife

ISSUESSpecial school for pregnant students?Baby hatch?

Opponents of IstislahThe Zahiri and some Shafie and Maliki Jurists do not recognise maslahah as a proof in its own right.To them there is no maslahah outside the shariah because the shariah itself is all inclusive.

The Hanafi and Shafie jurists adopted a relatively more flexible stance as they maintain that the masalih are either validated in the explicit nusus or indicated in the rationale (illah) of a given text, or even in the general objectives of the Lawgiver.Only in the presence of a textual indication can maslahah constitute a valid ground for legislation.

Specifically Imam Shafie approves of maslahah only within the scope of qiyas; whereas Imam Abu Hanifah validates it as a variety of Istihsan.