Principles of Islamic Jurisprudence by MH kamali

20 shatibi muwafaqat ii 3 5 badran usul p 208 the

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Unformatted text preview: p.54-55.] The `embellishments' (tahsiniyyat, also known as karahiyyah) denote interests whose realisation lead to improvement and the attainment of that which is desirable. Thus the observance of cleanliness in personal appearance and 'ibadat, moral virtues, avoiding extravagance in consumption, and moderation in the enforcement of penalties fall within the scope of tahsiniyyat. It will be noted that the unrestricted maslahah does not represent a specific category of its own in the foregoing classification, for the obvious reason that it could fall into any of the three types of masalih. Should it be the case that the realisation of maslahah mursalah is sine qua non to an essential maslahah, then the former becomes a part of the latter. Likewise, if maslahah mursalah happens to be a means to attaining one of the second classes of masalih, then it would itself fall into that category, and so on. Furthermore, we may briefly add here the point which al-Shatibi has discussed at some length, that the masalih are all relative (nibs, deaf), and as such, all the varieties of maslahah, including the essential masalih, partake in a measure of hardship and even mafsadah. Since there is no absolute maslahah as such, the determination of value in any type of maslahah is based on the preponderance of benefit that accrues from it, provided that the benefit in question is in harmony with the objectives of the Lawgiver. [22. Shatibi, Muwafaqat, II, 27ff.] From the viewpoint of the availability or otherwise of a textual authority in its favour, maslahah is farther divided into three types. First, there is maslahah which the Lawgiver has expressly upheld and enacted a law for its realisation. This is called al-maslahah al-mu'tabarah, or accredited maslahah, such as protecting life by enacting the law of retaliation (qisas), 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. The Lawgiver has, in other words, upheld that each of these offences constitute a proper ground (wasf munasib) for the punishment in question. The validity of maslahah in these cases is definitive and no longer open to debate. The ulema are in agreement that promoting and protecting such values constitutes a proper ground for legislation. The fact that the Lawgiver has upheld them is tantamount to His permission and approval of all measures, including legislation, that aim at their realisation. [23. Khallaf, 'Ilm, p. 84; Badran, Usul, pp. 209-10.] Principles of Islamic Jurisprudence ~ Kamali 239 But the masalih that have been validated after the divine revelation came to an end fall under the second class, namely the maslahah mursalah. Although this too consists of a proper attribute (wasf munasib) to justify the necessary legislation, but since the Lawgiver has neither upheld nor nullified it, it constitutes maslahah of the second rank. For example, in recent times, the maslahah which prompted legislation in many...
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This note was uploaded on 04/13/2013 for the course ISLAM 101 taught by Professor Islam during the Spring '13 term at Harvey Mudd College.

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