Principles of Islamic Jurisprudence by MH kamali

52 shatibi itisam ii 303 2 3 when the public treasury

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Unformatted text preview: eading ulema of the four Sunni schools are in agreement, in principle, that all genuine masalih which do not conflict with the objectives (maqasid) of the Lawgiver must be upheld. This is the conclusion that both Khallaf and Abu Zahrah have drawn from their investigations. [55. Abu Zahrah, Usul, p. 224; Khallaf, `Ilm, p.85.] The Shafi'i and Hanafi approach to maslahah is essentially the same as that of the Maliki and Hanbali schools, with the only difference being that the Principles of Islamic Jurisprudence ~ Kamali 246 former have attempted to establish a common ground between maslahah and the qiyas witch has an identifiable `illah. Some Maliki jurists, including Shihab al-Din al-Qarafi have observed that all the jurists are essentially in agreement over the concept and validity of maslahah mursalah. They only differ on points of procedure: while some would adopt it directly, others would do so by bringing the maslahah within the purview of qiyas. [56. Qarafi, Furuq, II, 188; Abu Zahrah, Usul, p. 225.] But Imam Malik's concept of maslahah is the most far-reaching of the four Sunni schools. Since maslahah must always be harmonious with the objectives of the Lawgiver, it is a norm by itself. Maslahah mursalah as such specifies the general (`Amm) of the Qur'an, just as the `Amm of the Qur'an may be specified by qiyas. In the event of conflict between a genuine maslahah and a solitary Hadith, the former takes priority over the latter. [57. Abu Zahrah, Usul, p. 225.] The changing conditions of life never cease to generate new interests. If legislation were to be confined to the values which the Lawgiver has expressly decreed, the Shari'ah would inevitably fall short of meeting the masalih of the community. To close the door of maslahah would be tantamount to enforcing stagnation and unnecessary restriction on the capacity of the Shari'ah to accommodate social change. 'Abd al-Wahhab Khallaf is right in his assessment that any claim to the effect that the nusus of the Shari'ah are all-inclusive and cater for all eventualities is simply not true. The same author goes on to say: 'There is no doubt that some of the masalih have neither been upheld nor indicated by the Shari'ah in specific terms.' [58. Khallaf, `Ilm, p. 88.] As for the concern that the opponents of maslahah mursalah have expressed that validating this doctrine would enable arbitrary and self-seeking interests to find their way under the banner of maslahah, they only need to be reminded that a careful observance of the conditions that are attached to maslahah will ensure that only the genuine interests of the people which are in harmony with the objectives of the Shari'ah would qualify. This concern is admittedly valid, but one which cannot be confined to maslahah alone. Arbitrariness and the pursuit of self-seeking interests have never been totally eliminated in any society, under any legal system. It is a permanent threat which must be carefully checked and minimized to the extent that this is possible. But this very purpose will be defeated if legislation on grounds of istislah were to be denied validity. To combat the evil of an arbitrary indulgence which waves the banner of maslahah would surely have greater prospects of success if the mujtahid and the Imam were to be able to enact the necessary legislation on grounds of preventing harm to society. Consequently the argu...
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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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