Principles of Islamic Jurisprudence by MH kamali

This he considered to be for the maslahah of the

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Unformatted text preview: hese instances, the ulema have aimed at securing the maslahah mursalah by following a Shari'ah-oriented policy (siyasah shar'iyyah), which is largely concurrent with the dictates of maslahah. As Ibn al-Qayyim has observed, 'siyasah shar'iyyah comprises all measures that bring the people close to well-being (salah) and move them further away from corruption (fasad), even if no authority is found for them in divine revelation and the Sunnah of the Prophet.' 16.] The main support for istislah as a proof and basis of legislation (tashri) comes from Imam Malik, who has given the following reasons in its favour: 1. The Companions have validated it and have formulated the rules of Shari'ah on its basis. 2. 3. When the maslahah is compatible with the objectives of the Lawgiver (maqasid al-shari`) or Principles of Islamic Jurisprudence ~ Kamali 238 [18. Ibn al-Qayyim, Turuq, p. falls within the genus or category of what the Lawgiver has expressly validated, it must be upheld. For neglecting it under such circumstances is tantamount to neglecting the objectives of the Lawgiver, which is to be avoided. Hence maslahah as such is a norm of the Shari'ah in its own right; it is by no means extraneous to the Shari`ah but an integral pair of it. 4. 5. When maslahah is of the genus of the approved masalih and is not upheld, the likely result 6. 7. would be to inflict hardship on the people, which must be prevented. Zahrah, Usul, p. 223.] Types of Maslahah [19. Shatibi, I`tisam, II, 282-287; Abu The masalih in general are divided into three types, namely, the 'essentials' (daruriyyat), the 'complementary' (hajiyyat), and the `embellishments' (tahsiniyyat). The Shari'ah in all of its parts aims at the realisation of one or the other of these masalih. The `essential' masalih are those on which the lives of people depend, and whose neglect leads to total disruption and chaos. They consist of the five essential values (al-daruriyyat al-khamsah) namely religion, life, intellect, lineage and property. These must not only be promoted but also protected against any real or unexpected threat which undermines their safety. To uphold the faith would thus require observance of the prescribed forms of 'ibadat, whereas the safety of life and intellect is secured by obtaining lawful means of sustenance as well as the enforcement of penalties which the Shari'ah has provided so as to protect them against destruction and loss. [20. Shatibi, Muwafaqat, II, 3-5; Badran, Usul, p. 208.] The hajiyyat are on the whole supplementary to the five essential values, and refer to interests whose neglect leads to hardship in the life of the community although not to its collapse. Thus in the area of a 'ibadat the concessions (rukhas) that the Shari`ah has granted to the sick and to the traveler, permitting them not to observe the fast, and to shorten the salah, are aimed at preventing hardship. Similarly, the basic permissibility ('ibadah) regarding the enjoyment of victuals and hunting is complementary to the main objectives of protecting life and intellect. [21. Shatibi, Muwafaqat, II, 5; Mustafa Zayd, Maslahah, p...
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