Principles of Islamic Jurisprudence by MH kamali

Khallaf ilm might accrue from it an example of a

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Unformatted text preview: e life such as the freedom to work, freedom of speech, and freedom to travel. Protecting the intellect (`aql) necessitates the promotion of learning and safeguards against calamities which corrupt the individual and make him a burden to society. Furthermore, safeguarding the purity of lineage (nasl) entails protection of the family and creation of a favourable environment for the care and custody of children. And lastly, the protection of property requires defending the right of ownership. It also means facilitating fair trade and the lawful exchange of goods and services m the community. [27. Abu Zahrah, Usul, p. 220.] 2) The second condition is that the maslahah must be general (kulliyyah) in that it secures benefit, or prevents harm, to the people as a whole and not to a particular person or group of persons. This means that enacting a hukm on grounds of istislah must contemplate a benefit yielded to the largest possible number of people. It is not maslahah if it secures the interest of a few individuals regardless of their social and political status. The whole concept of maslahah derives its validity from the idea that it secures the welfare of the people at large. [28. Khallaf,`Ilm, p.87; Badran, Usul, p. 214.] 3) Lastly, the maslahah must not be in conflict with a principle or value which is upheld by the nass or ijma`. Hence the argument, for example, that maslahah in modern times would require the legalization of usury (riba) on account of the change in the circumstances in which it is practiced, comes into conflict with the clear nass of the Qur'an. The view that riba in the way it is practiced in modern banking does not fall under the Qur'anic prohibition, as Abu Zahrah points out, violates the nass and therefore negates the whole concept of maslahah. [29. Abu Zahrah, Usul, p. 219; Badran, Usul, p. 215.] Imam Malik has added two other conditions to the foregoing, one of which is that the maslahah must be rational (ma`qulah) and acceptable to people of sound intellect. The other condition is that it must prevent or remove hardship from the people, which is the express purpose of the Qur'anic ayah in sura al-Ma'idah (5:6) quoted above. [30. Shatibi, I`tisam, II, 307-14; Mustafa Zayd, Maslahah, p.51.] Furthermore, according to al-Ghazali, maslahah, in order to be valid, must be essential (al-maslahah aldaruriyyah). To illustrate this, al-Ghazali gives the example of when unbelievers in the battlefield take a group of Muslims as hostages. If the situation is such that the safety of all the Muslims and their victory necessitates the death of the hostages, then al-Ghazali permits this in the name of al-maslahah al-daruriyyah. [31. Ghazali, Mustasfa, I, 141.] However the weakness of al-Ghazali's argument appears to be that Principles of Islamic Jurisprudence ~ Kamali 241 the intended maslahah in this example entails the killing of innocent Muslims, and the Shari'ah provides no indication to validate this. Al-Tufi's View of Maslahah Mursalah [32. Badran. Usul, pp. 215-16.] Whereas the majority of...
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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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