Principles of Islamic Jurisprudence by MH kamali

As for istihsan it only applies to cases on which

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Unformatted text preview: lf. This is the view of the Zahiris and some Shafi'is like al-Amidi, and the Maliki jurist Ibn al-Hajib, who do not recognise maslahah as a proof in its own right. They maintain that the masalih are all exclusively contained in the nusus. When the Shari'ah is totally silent on a matter, it is a sure sign that the maslahah in question is no more than a specious maslahah (maslahah wahmiyyah) which is not a valid ground for legislation. [40. Khallaf, `Ilm, p.88; Badran, Usul, p. 213.] The Hanafis and most Shafi'is have on the other hand adopted a relatively more flexible stance, maintaining 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. The identification of the causes (`ilal) and objectives, according to this view, entails the kind of enquiry into the 'illah that would be required in qiyas. The main difference between this view and that of the Zahiris is that it validates maslahah on the basis of the rationale and the objective of the Shari'ah even in the absence of a specific nass. Both these views are founded in the argument that if maslahah is not guided by the values upheld in the nusus there is a danger of confusing maslahah with arbitrary desires, which might lead to corruption and mafsadah. Experience has shown that this has frequently occurred at the behest of rulers and governors who have justified their personal wishes in the name of maslahah. The way to avoid this is indicated in the Qur'an, in sura al-Qiyamah (75:36) where we read: 'Does man think that he has been left without guidance?' The maslahah must therefore be guided by the values that the Lawgiver has upheld. Hence there is no maslahah unless it is corroborated by an indication in the Shari'ah. Usul, pp. 221,224; Khallaf, `Ilm, p. 88; Badran, Usul, p. 213.] While commenting on istihsan, Imam Ghazali writes: `We know that the masalih must always follow the shar'i indications; istihsan is not guided by such indications and therefore amounts to no more than a whimsical opinion". As for maslahah mursalah, alGhazali maintains that when it is not approved by the Lawgiver, it is like istihsan. Principles of Islamic Jurisprudence ~ Kamali 244 [41. Abu Zahrah, [42. Ghazali, Mustasfa, I,138.] Al-Ghazali recognises the `accredited' maslahah, that is, when the maslahah is indicated in the nass. He also approves of maslahah mursalah when it is based in definite necessity, that is, maslahah daruriyyah. In the absence of a definite necessity, al-Ghazali maintains that maslahah is not valid. Consequently, al-Ghazali does not approve of the remaining two classes of the masalih, namely the complementary (hajiyyat), and the embellishments (tahsiniyyat). [43. Ghazali, Mustasfa, I, 139-140.] By making the stipulation that the maslahah, in order to be valid, must be founded in definite...
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