Principles of Islamic Jurisprudence by MH kamali

Principles of Islamic Jurisprudence by MH kamali

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Unformatted text preview: necessity, however, alGhazali is no longer speaking of maslahah mursalah, but of necessity (darurah), which is a different matter altogether and governed by a different set of rules. [44. Cf. Badran, Usul, p. 211.] It thus appears that this view only validates the type of maslahah which is referred to as maslahah mu'tabarah. The opponents of istislah further add that to accept istislah as an independent proof of Shari`ah would lead to disparity, even chaos, in the ahkam. The halal and haram would be held to be applicable in some place or to some persons and not to others. This would not only violate the permanent and timeless validity of the Shari'ah but would open the door to corruption. [45. Khallaf, 'Ilm, p.88.] As already stated, the Hanafis and the Shafi`is do not accept istislah as an independent proof. Al-Shafi'i approves of maslahah only within the general scope of qiyas; whereas Abu Hanifah validates it as a variety of istihsan. This would explain why the Shafi`is and the Hanafis are both silent on the conditions of maslahah, as they treat the subject under qiyas and istihsan respectively. They have explained their position as follows: should there be an authority for maslahah in the nusus, that is, if maslahah is one of the accredited masalih, then it will automatically fall within the scope of qiyas. In the event where no such authority could be found in the nusus, it is maslahah mulgha and is of no account. But it would be incorrect to say that there is a category of maslahah beyond the scope of the nass and analogy to the nass. To maintain that maslahah mursalah is a proof would amount to saying that the nusus of the Qur'an and the Sunnah are incomplete. Badran, Usul, p. 213.] [46. Abu Zahrah, Usul, p. 222; Mustafa Zayd, Maslahah, p. 61; The opponents of istislah have further argued that the Lawgiver has validated certain masalih and overruled others. In between there remain, the maslahah mursalah which belongs to neither. It is therefore equally open to the possibility of being regarded as valid (mu'tabarah) or invalid (mulgha). Since there is no certainty as to their validity, no legislation may be based on it, for law must be founded in certainty, not doubt. In response to this, it is argued that the Lawgiver has proscribed certain masalih not because there is no benefit in them but mainly because of their conflict with other and superior masalih, or because they lead to greater evil. None of these considerations would apply to maslahah mursalah, for the benefit in it outweighs its possible harm. It should be borne in mind that the masalih which the Lawgiver has expressly overruled (i.e. masalih mulgha) are few compared to those which are upheld. When we have a case of masalih mursalah on which no clear authority may be found in the sources, and they appear to be beneficial, they are more likely to belong to the part which is more extensive and preponderant (kathir al-ghalib), not to that which is limited and rare (qalil al-nadir). [47. Badran, Usul, p. 214.] The Zahiris do not admit speculative evidence of any kind as a proof of Shari`ah. They have invalidated eve...
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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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