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Unformatted text preview: n qiyas, let alone maslahah, on the grounds that qiyas partakes in speculation. The rules of Shari'ah must be founded in certainty, and this is only true of the clear injunctions of the Qur'an, Sunnah and ijma'. Anything other than these is mere speculation, which should be renounced. As for the reports that the Companions issued fatwas on the basis of their own ra'y which might have partaken in maslahah, Ibn Hazm is categorical in saying that 'these reports do not bind anyone'. Hazm, Ihkam, VI, 40.] Thus it would follow that the Zahiris do not accept maslahah mursalah, which they consider to be founded in personal opinion (ra'y). [50. Cf. Mustafa Zayd, Maslahah, p. 62.] [48. Ibn Hazm, Ihkam, V, 55-56.] Principles of Islamic Jurisprudence ~ Kamali 245 [49. Ibn The Malikis and the Hanbalis have, on the other hand, held that maslahah mursalah is authoritative and that all that is needed to validate action upon it is to fulfill the conditions which ensure its propriety. When these conditions are met, maslahah becomes an integral part of the objectives of the Lawgiver even in the absence of a particular nass. Ahmad b. Hanbal and his disciples are known to have based many of their fatwas on maslahah, which they have upheld as a proof of Shari'ah and an instrument of protecting the faith, securing justice, and preventing mafsadah. They have thus validated the death penalty for spies whose activity violates the maslahah of the Muslim community. The Hanbalis have also validated, on grounds of maslahah, the death penalty for propagators of heresy when protecting the maslahah of the community requires this. But in all this, the Hanbalis, like the Malikis, insist that the necessary conditions of maslahah must be fulfilled. Maslahah must pursue the valid objectives of the Shari'ah and the dictates of sound intellect, acting upon which fulfils a useful purpose, or serves to prevent harm to the people. [51. Cf. Mustafa Zayd, Maslahah, p. 60.] Some of the more far-reaching instances of maslahah in the Maliki doctrine may be summarised as follows: 1. Imam Malik validated the pledging of bay`ah (oath of allegiance) to the mafdul, that is the lesser of the two qualified candidates for the office of the Imam, so as to prevent disorder and chaos afflicting the life of the community. [52. Shatibi, I'tisam, II, 303.] 2. 3. When the Public Treasury (bayt al-mal) runs out of funds, the Imam may levy additional taxes on the wealthy so as to meet the urgent needs of the government without which injustice and sedition (fitnah) may become rampant. [53. Shatibi, I'tisam, II, 295.] 4. 5. In the event where all the means of earning a lawful living are made inaccessible to a Muslim, 6. 7. he is in a situation where he cannot escape to another place, and the only way for him to earn a living is to engage in unlawful occupations; he may do so but only to the extent that is necessary. Conclusion [54. Shatibi, I'tisam, II, 300.] Despite their different approaches to maslahah, the l...
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