Public Interest

Definition
Taken 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 procedures, medical etc. economy, legal,

Definition by al-Ghazali
Maslahah 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 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)

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

 Kaffarat Entitlement in inheritance Specified period of iddah Number of rakaat in solat

TYPES OF MASLAHAH
In general:

DHARURIYYAT (ESSENTIAL)
HAJIYYAT (COMPLEMENTARY)
they are needed to alleviate hardship so that life may be free from distress and predicament.

Masalih on which the lives of the people depend 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 protected Supplementary 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 realisation leads to improvement and the attainment of that which is desirable. E.g. the observance of cleanliness in personal appearance and ibadah. Avoiding extravagance in consumption

TAHSINIYYAT (EMBELLISHMENT)
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.

From the viewpoint of the availability or otherwise of a textual authority in its favour Maslahah is divided into;

MUTABARAH

MURSALAH

MULGHAH

Maslahah Mutabarah
Maslahah 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 hajiyyah Polygamy? Written agreement/contract?

Maslahah Mulghah
It 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 divorce
Some said it should also be given to the wife because of maslahah Is there a maslahah? Maslahah mulghah.

Maslahah Mursalah
Maslahah 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 MM
Surah al-Anbiya (21):107
We have not sent you but a mercy for all creatures ()

Surah al-Maidah : 6
God never intends to impose hardship upon people. ()

 Hadith:
La dharar wa la dhirar fil Islam
harm is neither inflicted nor tolerated in Islam - The 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 building Validating 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 currency Establishment of prison Imposition of tax (kharaj) on agricultural lands in the conquered territories despite absence of textual authority.

Other examples of MM
The collection and compilation of al-Quran in a single volume The introduction of land tax The right to inheritance of a woman whose husband had divorced her during death sickness

 War on those who refused to pay zakat Nomination of Umar to replace Abu Bakar as caliph The 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 alJund) and Diwan al-Ata (sort like ministry of finance) but to distribute money to the public established by Sayyidina Umar Administration of justice

Conditions of Maslahah
The maslahah must be genuine (haqiqiyyah)
Protecting the faith necessitates prevention of sedition (fitnah) and propagation of hearsay Protecting intellect promotion of learning, providing education Protecting of lineage creation of favourable environment for care and custody of children Protecting 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 certificate the recording of land transfer in the Registry departments prevents false testimony and fraudulent land transfer. consumer protection law day care centers at the government offices and agencies regulation 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 persons
Acquisition 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?

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Imam Malik added two other conditions:
1. Maslahah must be rational and acceptable to the people of sound intellect. 2. Must prevent or remove hardship from the people

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Al-Ghazali only permits maslahah aldharuriyyah 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 (alGhazali, 1993, p. 177).
His view was rejected by majority of Muslim jurists

Al-Tufis view of maslahah almursalah

A 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.

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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

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As 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.

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In 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 Qiyas

They are applicable to cases on which there is no clear ruling available in nusus or ijma The benefit that is secured by recourse to them is based on probability

Differences
Maslahah Mursalah
the benefit which is sought through MM has no specific basis in the established law whether in favour or against.

Qiyas
The 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 Istihsan

Maslahah Mursalah
The ruling which is based on MM is original in the sense that it does not follow, or represent a departure from, an existing precedent

Istihsan
It 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)

QIYAS

ISTIHSAN
ISTISLAH (MM)

Q&S RULING

Maslahah in modern time

Examples:
The law on road safety The law on wearing helmet The requirement on identification card The HIV test before marriage Needle and Syringe Exchange Programme

 Pre marital course Marriage certificate wearing bangle/bracelet/neclace for male pilgrims Separate coach/section for women in public transport

Islamic Banking system and products Increase in the price of cigarettes ISA? Income tax Insurance Manufacturing contract

 Business contracts through modern telecommunication Payment by installment Warranty on purchased goods Permission from the first wife before a man can marry a second or subsequent wife

ISSUES
Special school for pregnant students? Baby hatch?

Opponents of Istislah
The 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.