Question:

Explain about Maslahah Mursalah & the conditions to be fulfilled for it to be accepted as part
of sources of Islamic Law. Give examples of Maslahah Mursalah as practised in the modern
days.

Answer:

1. Type of Maslahah:

Acknowledged by The Shariah

Masalih Includes all types of maslahah where the Qur’an and Sunnah enacted a law for its realization
Mu’tabarah For example, essential public interest (masalih daruriyyah), needed public interest, (masalih
hajiyyat) and refining public interest (masalih tahsiniyyat)

Not acknowledged by the Shari’ah

Masalih Nullified by Qur’an and sunnah
Mulghat For example, practicing usury in transaction, prohibition of polygamy, equal share of man and
woman in the inheritance

Neither acknowledged nor rejected by Shari’ah

Masalih One which is neither nullified nor considered by Shari’ah
Mursalah For example, the compilation of the Qur’an, using the prison, liability of trustee, registration of
marriage, HIV test for those to get marriage

2. Definition of Maslahah al-Mursalah

 Literal meaning: Benefit or interest
 According to Imam al-Ghazali: A consideration which secures a benefit or prevents
harm but is in the meantime harmonious with the aim and objective of the Shariah.
These objectives consist of protecting the five essential values, namely religion, life,
intellect, lineage, and property. Therefore, any measures which secures these values
falls within the scope of maslahah(benefit) and anything which contravenes them is
mafsadah(evil).

3. Majority of Islamic jurists consider Maslahah al-Mursalah as a source of Islamic law. In fact,
the Ijma of Companions is also a part of the proofs that Maslahah as part of Islamic source.
 For example, compilation of the Qur’an, perpetual prohibition of marriage for one who
married woman during iddah period and consummated the marriage, imposition of
liability on trustee
4. Conditions of valid Maslahah al-Mursalah
 It must not conflict with definitive proof of the Quran and Sunnah. Even though it
provide job opportunities and create new sources of revenue for some members of
the public, they cannot be permitted on the basis of Maslahah, because they all
explicitly go against the values and teachings of the primary sources therefore,
legislation pursing these kinds of interests are strongly discouraged.
Example:
The legalisation of usury (riba’) on account of the change in circumstances is clearly
in conflict with the clear nass of the quran where in surah al-Baqarah verse 275:
“Allah has permitted trade and has forbidden riba.”

 It must be genuine (haqiqiyyah) where it really brings benefit and remove harm
Example:
i. To prevent sedition or clarify misunderstandings about the Islamic belief
system (protection of faith),
ii. The action creates and enabling and caring environment for children
(protection of lineage),
iii. The action prevents unnecessary injury to man and animals or loss of life
(protects life), how the action ensures justice in trade and other financial
transactions (protects property
iv. The action of discouraging laziness (protection of the intellect)

 General(kulliyyah) in order of securing benefit and removing harm to the people as a

whole and not to person or group of persons.
Example:
 i. The consigning resourceful land to the public as opposed to individual
ownership,
ii. Imposing taxes and anti-dumping laws on importation of certain resources,
iii. Setting up adequate surveillance networks to keep crime in check and
maintain law and order in the society.

 Imam Malik added two other conditions which is

i. It must be reasonable as to be acceptable by the people of sound intellect
ii. It must prevent or remove hardship from the people.