Principles of Islamic Jurisprudence by MH kamali

The fact that the lawgiver has upheld them is

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Unformatted text preview: Muslim countries providing that the claim of marriage, or of ownership in real property, can only be proved by means of an official document has not been explicitly validated by the Shari'ah. The law on these points has thus upheld the unrestricted maslahah; more specifically it is designed to prevent a mafsadah, which is the prevalence of perjury (shahadah al-zur) in the proof of these claims. p. 85; Badran, Usul, p. 215.] The third variety of maslahah is the discredited maslahah, or maslahah mulgha, which the Lawgiver has nullified either explicitly or by an indication that could be found in the Shari'ah. The ulema are in agreement that legislation in the pursuance of such interests is invalid and no judicial decree may be issued in their favour. An example of this would be an attempt to give the son and the daughter an equal share in inheritance on the assumption that this will secure a public interest. But since there is a clear nass in the Qur'an (al-Nisa', 4:11) which assigns to the son double the portion of the daughter, the apparent maslahah in this case is clearly nullified (mulgha). [25. Badran, Usul, p. 209.] To summarize: when the Shari'ah provides an indication, whether direct or implicit, on the validity of a maslahah, it falls under the accredited masalih. The opposite of this is maslahah mulgha, which is overruled by a similar indication in the sources. The unrestricted maslahah applies to all other cases which are neither validated nor nullified by the Shari'ah. Conditions (Shurut) of Maslahah Mursalah The following conditions must be fulfilled in order to validate reliance on maslahah mursalah. These conditions are designed so as to ensure that maslahah does not become an instrument of arbitrary desire or individual bias in legislation. 1 ) The maslahah must be genuine (haqiqiyyah), as opposed to a specious maslahah (maslahah wahmiyyah), which is not a proper ground for legislation. A mere suspicion or specious conjecture (tawahhum) that a certain legislation will be beneficial without ascertaining the necessary balance between its possible benefits and harms is not sufficient. There must, in other words, be a reasonable probability that the benefits of enacting a hukm in the pursuance of maslahah outweigh the harms that Principles of Islamic Jurisprudence ~ Kamali 240 [24. Khallaf, 'Ilm, might accrue from it. An example of a specious maslahah, according to Khallaf, would be to abolish the husband's right of talaq by vesting it entirely in a court of law. [26. Khallaf, 'Ilm, p. 86.] Genuine masalih are those which contemplate the protection of the five essential values noted above. Protecting the faith, for example, necessitates the prevention of sedition (fitnah) and of the propagation of heresy. It also means safeguarding freedom of belief in accordance with the Qur'anic principle that 'there shall be no compulsion in religion' (al-Baqarah, 2:256). Similarly, safeguarding the right to live includes protecting the means which facilitate an honourabl...
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