Principles of Islamic Jurisprudence by MH kamali

Muslim rulers and judges have made little or no use

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Unformatted text preview: n and refinement. Judges and lawyers are generally reluctant to depart from the existing law, or to make exceptions to it, even in the face of evidence to the effect that a departure would be in the interests of fairness and Principles of Islamic Jurisprudence ~ Kamali 233 justice. Their reluctance is often due to the reticence in the law as to precisely what role the judge has to play in such a situation. Judges are normally expected to enforce the law at all costs, and often have little choice in the matter regardless of the circumstances or results. Alternatively, it may be that the judges are, in fact, doing this- departing from the law when it seems patently unfair - without openly acknowledging what they are doing. In any case, it world seem advisable if the legislature explicitly authorised the judge to resort to istihsan when he considers this to be the only way of achieving a fair solution in a case under consideration. In this way, istihsan would hopefully find a place in the day-today administration of justice and would consequently encourage flexibility and fairness in law and judicial practice. Judicial decisions would, in turn, influence legislation and contribute towards attaining a more refined and equitable legal order. A clear and well-defined role for istihsan would hopefully mark a new opening in the evolutionary process of Islamic law. Principles of Islamic Jurisprudence ~ Kamali 234 Chapter Thirteen: Maslahah Mursalah (Considerations of Public Interest) Literally, maslahah means 'benefit' or `interest'. When it is qualified as maslahah mursalah, however, it refers to unrestricted public interest in the sense of its not having been regulated by the Law giver insofar as no textual authority can be found on its validity or otherwise. [1. Khallaf, 'Ilm, p. 84; Badran Usul, p. 209.] It is synonymous with istislah, and is occasionally referred to as maslahah mutlaqah on account of its being undefined by the established rules of the Shari'ah. For al-Ghazali, maslahah consists of considerations which secure a benefit or prevent a harm but which are, simultaneously, harmonious with the objectives (maqasid) of the Shari'ah. These objectives, the same author adds, consist of protecting the five `essential values', namely religion, life, intellect, lineage and property. Any measure which secures these values falls within the scope of maslahah, and anything which violates them is mafsadah (`evil'), and preventing the latter is also maslahah. [2. Ghazali, Mustasfa, I, 139-140.] More technically, maslahah mursalah is defined as a consideration which is proper and harmonious (wasf munasib mula'im) with the objectives of the Lawgiver; it secures a benefit or prevents a harm; and the Shari'ah provides no indication as to its validity or otherwise. [3. Badran, Usul, p. 210; Sabuni, Madkhal, p. 131.] The Companions, for example, decided to issue currency, to establish prisons, and to impose tax (kharaj) on agricultural lands in the conquered territories despite the fact that no textual authority could be found in favour of this. [4. Khallaf, 'Ilm, p. 84.] The ulema are in agreement that istislah is not a proof i...
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