Principles of Islamic Jurisprudence by MH kamali

To illustrate this al ghazali gives the example of

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Unformatted text preview: jurists do not allow recourse to istislah in the presence of a textual ruling, a prominent Hanbali jurist, Najm al-Din al-Tufi, stands out for his view which authorises recourse to maslahah with or without the existence of nass. In a treatise entitled al-Masalih al-Mursalah, which is a commentary on the Hadith that `no harm shall be inflicted or reciprocated in Islam', al-Tufi argues that this Hadith provides a clear nass in favour of maslahah. It enshrines the first and most important principle of Shari'ah and enables maslahah to take precedence over all other considerations. Al-Tufi precludes devotional matters, and specific injunctions such as the prescribed penalties, from the scope of maslahah. In regard to these matters, the law can only be established by the nass and ijma`. If the nass and ijma' endorse one another on `ibadat, the proof is decisive and must be followed. Should there be a conflict of authority between the nass and ijma', but it is possible to reconcile them without interfering with the integrity of either, this should be done. But if this is not possible, then ijma` should take priority over other indications. [33. Tufi, Masalih, p.139.] As for transactions and temporal affairs (ahkam al-mu'amalat wa al-siyasiyyat al-dunyawiyyah), al-Tufi maintains that if the text and other proofs of Shari'ah happen to conform to the maslahah of the people in a particular case, they should be applied forthwith, but if they oppose it, then maslahah should take precedence over them. The conflict is really not between the nass and maslahah, but between one nass and another, the latter being the Hadith of la darar wa la dirar fi'l-Islam. Maslahah, pp. 238-240. This book is entirely devoted to an exposition of Tufi's doctrine of Maslahah.] [34. Tufi, Masalih, p. 141; Mustafa Zayd, One must therefore not fail to act upon that text which materialises the maslahah. This process would amount to restricting the application of one nass by reason of another nass and not a suspension or abrogation thereof. It is a process of specification (takhsis) and explanation (bayan), just as the Sunnah is sometimes given preference over the Qur'an by way of clarifying the text of the Qur'an. Zahrah, Usul, p. 223. A discussion of Tufi's doctrine can also be found in Kerr, Islamic Reform, p. 97ff.] [35. Cf. Mustafa Zayd, Maslahah, p. 121; Abu In the areas of transactions and governmental affairs, al-Tufi adds, maslahah constitutes the goal whereas the other proofs are like the means; the end must take precedence over the means. The rules of Shari'ah on these matters have been enacted in order to secure the masalih of the people, and therefore when there is a conflict between a maslahah and nass, the Hadith la darar wa la dirar clearly dictates that the former must take priority. [36. Tufi, Masalih, p.141; Mustafa Zayd, Maslahah, p. 131-132.] In short, al-Tufi's doctrine, as Mahmassani has observed, amounts to saying after each ruling of the text, 'Provided public intere...
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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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