Sharia and the Concept of Benefit

The Use and Function of Maslaha in Islamic Jurisprudence

Abdul Aziz bin Sattam

• Publisher: I.B. Tauris
• Year: 2015
• ISBN:
  9780857736598
• Edition: 1
• Topic: Theologie & Religion
• Subtopic: Islamische Theologie

The idea of maslaha has a rich history in classical legal thought and literature. Conventionally translated into English as 'general benefit' or 'general interest', it has been the subject, over many centuries, of intense argument in Muslim legal manuals about how the concept should be constructed and how it might be interpreted. Some celebrated scholars have even elevated its status to an independent legal source; while other prominent jurists have spoken of the special strictures which need to be applied to maslaha when considering it within the overall framework of Islamic law. In this thorough and original treatment of the concept, Abdul Aziz bin Sattam offers the first sustained examination of one of the most important tenets of Sharia. Seeking to illuminate not only the intricacies of its application, but also the wider history which has shaped it, the author examines its foundations, theoretical underpinnings and the key debates in both classical and contemporary texts. His book will be a vital resource for all those with an interest in Islamic law, whether of the medieval or modern periods.

Chapter One

WHAT IS MAṢLAḤA?

1. The Definition of Maṣlaḥa: Linguistic and Terminological

The Arabic term maṣlaḥa (pl. maṣāliḥ) finds its root in the verbal noun al-ṣalāḥ (righteousness), which in turn is the antonym of al-fasād (corruption). Its primary signification is of ‘benefit’. Aṣlaḥa, meaning to restore something after it has been corrupted, is a verbal form of the term.¹ Thus, in linguistic terms, the word maṣlaḥa may generally be applied in one of two ways. The first is to describe an object, or action, as ‘being perfectly suitable for something’. For instance, a pen could be described as a maṣlaḥa when it is perfectly suitable for writing. The second, which is a figurative usage of the word maṣlaḥa, is to indicate an action as bringing benefit or preventing harm. For example, seeking knowledge is a maṣlaḥa in that it results in certain benefits.

The word mafsada is the antonym of maṣlaḥa, a factor that creates some limitations upon their joint usage. The terms cannot be jointly and concurrently employed to describe the same thing and to the same degree. Correspondingly they cannot be simultaneously removed from the description of something such that it is described as neither maṣlaḥa nor mafsada at the same time and to the same degree. As benefit is also the antonym of harm, the removal of harm is itself a maṣlaḥa.²

Istiṣlāḥ is to seek maṣlaḥa, while the verbal form istaṣlaḥtu, means ‘I have sought what is beneficial.’ According to al-Ghazālī (d. 505 AH), the original meaning of maṣlaḥa as a technical religious term is to secure a benefit or remove a harm. However, the medieval theologian saw an alternative meaning to be of a more particular relevance: that of the preservation of the Sharīʿa objectives. Al-Ghazālī states,

The original meaning of maṣlaḥa is to secure benefit or prevent harm, but I do not imply this meaning. Indeed securing benefits and preventing harms are the objectives of the Creator [God] to achieve the interests of humankind as people’s welfare lies in realising their objectives. However, what I mean by maṣlaḥa is preserving the Sharīʿa objectives.³

He then goes on to clarify that in his view the objectives of the Islamic Sharīʿa are five: preservation of religion, life, reason, offspring and property. Al-Ghazālī suggests that whatever assures the preservation of these five represents a maṣlaḥa and whatever fails to preserve them is a mafsada, the removal of which is a maṣlaḥa in itself.

Al-Ghazālī indicates that maṣlaḥa is of three types: ḍarūriyyāt (necessities), hājjiyyāt (needs) and taḥsīniyyāt (complements). He further explains that maṣlaḥa at both the levels of hājjī and taḥsīnī cannot be judged by the process of istiṣlāḥ alone, unless supported by an original textual precedent, otherwise legislation will be based on mere personal opinion. However, once supported by an original precedent, it becomes a qiyās (analogy). As for those classified as ḍarūriyyāt (necessities), al-Ghazālī asserts that maṣlaḥa must be reached through ijtihād (personal reasoning) made by a mujtahid (a scholar qualified to make ijtihād) but there is no need for the presence of an original precedent.

According to al-ʿIzz b. ʿAbd al-Salām (d. 660/1 AH),⁴ maṣlaḥa is either the benefits and pleasures or their causes. As such, he classifies it into two categories: the first is the genuine literal form, that is the pleasures themselves. The second is allegorical, or the causes of such pleasures.⁵ Ibn Taymiyya defines maṣlaḥa as ‘the action that brings a preponderant benefit not declined by the Sharīʿa’.⁶ Al-Lakhmī defines maṣlaḥa as ‘the benefit that the All-Wise Legislator has intended for His servants: the preservation of their faith, life, intellect, offspring and property, according to a specific order’.⁷ It would appear al-Lakhmī was influenced by al-Rāzī (d. 606 AH)⁸ as we find the latter, in his work al-Maḥṣūl, defining al-munāsib (the suitable) as:

What leads to what suits humankind either through attaining or retaining something. Attaining could be called ‘bringing benefit’ and retaining could be called ‘removing harm’, because the removal of what is intended to be retained is a harm and retaining it is a removal of a harm. Attaining and retaining could be either maʿlūm (certainly known) or maẓnūn (surmised) and in either case they could be either religious or temporal.⁹

As achieving a decision within the framework of the Sharīʿa is intended to achieve the greatest level of benefit, perhaps the most appropriate definition for maṣlaḥa in this study is as follows: ‘The best option that achieves the optimum desired benefit, while avoiding contravention of the Sharīʿa.’

2. The Sharīʿa and Securing People’s Maṣlaḥas

From the Islamic perspective, God created people and did not leave them without managing their affairs. Rather, He assisted them with His messengers and revealed to each His law (Sharīʿa), the obedience to which results in guidance away from the darkness of misguidance. The Qur’an, which is understood by Muslims to be God’s word, indicates that such is the case with every Sharīʿa and that its application extends to all nations in all times, from the creation of Adam to the Day of Resurrection:

We sent to you [Muḥammad] the Scripture with the truth, confirming the Scriptures that came before it and with final authority over them; so judge between them according to what God has sent down. Do not follow their whims, which deviate from the truth that has come to you. We have assigned a law and a path to each of you. If God had so willed, He would have made you one community, but He wanted to test you through that which He has given you. So race to do good; you will all return to God and He will make clear to you the matters you differed about.¹⁰

Islamically, Sharīʿa aims to secure and maximize benefits, preventing and minimizing harms in the best and fairest way possible and in avoidance of any contradiction or confusion. It is argued within Musl...

Table of contents

• Author Biography
• Title Page
• Copyright Page
• Contents
• List of Illustrations
• List of Tables
• Foreword by Muhammad A. S. Abdel Haleem
• Introduction
• Chapter One: What is Maṣlaḥa?
• Chapter Two: Types of Maṣlaḥa
• Chapter Three: Maṣlaḥa Regulators: Function and Types
• Chapter Four: Maṣlaḥa Preferability
• Chapter Five: Types of Maṣlaḥa Preferability
• Chapter Six: Criteria of Maṣlaḥa Preferability
• Conclusion
• Notes
• Bibliography