Understanding Usul Al-Fiqh by Abu Tariq Hilal - Abu Ismael al-Beirawi

Literally, Maslahah means benefit or interest. As a juristic term Maslahah Mursalah refers to accepting public interest in the absence of ruling regarding an issue from the Qur‟an or Sunnah.

A. Maslahah cancelled by the text - Maslahah (benefit/interest), which is cancelled due to a ruling from the text. All agree that this kind of Maslahah is invalid.

Example:

One of the Khaleefahs had marital relations with his wife during the daytime in Ramadan. One of the Ulema advised the Khaleefah to fast two consecutive months as Kaffarah. Another „Alim asked this „Alim how he issued this ruling when the Khaleefah first must free one slave, and if he could not, then feed 60 people, and, if he cannot, then he should fast two consecutive months.

The „Alim answered, that if he had ordered the first two punishments, then it would have been easy for the Khaleefah and he might have done the same act again. This form of Maslahah is invalid because a ruling on the issue already exists from Sunnah. The ruling is that if a person breaks his fast in Ramadan by having sexual intercourse with his wife, then he has to free a slave. If he can‟t, then feed 60 people, if he can‟t, then fast 60 days. This is based on a Hadith reported by Bukhari, Muslim, Ibn Majah and Abu Dawud. This order cannot be changed.

B. Maslahah approved by the Shari‟ah - Benefit, which the Shari‟ah does not forbid. As an example, allowing people to trade. This trade is the interest of the people and Qur‟an allowed us to conduct trade. All agree that this type is valid.

C. Adopting Maslahah (benefit/interest) in an action from which there is no ruling from Qur‟an and Sunnah.

For example compiling the Qur‟an or cancelling the Hadd (punishment) for stealing during famine.

There is no debate amongst the Ulema on the first two types of Maslahah al Mursalah. But there is disagreement regarding the third type of Maslahah.

Some have accepted it within specific requirements while others have rejected it outright.

The Ulema who have accepted Maslahah al Mursalah give the following justifications:

A. Shari‟ah, in general, came to satisfy the interests of the people in the correct manner.

B. Sahabah (ra) agreed through Maslahah (benefit/interest) to compile the Qur‟an without having evidence either in the Qur‟an or in the Sunnah to do so. This is among the many examples claiming that the Sahabah (ra) compiled the Qur‟an due to its benefit but without a Daleel.

Regarding the first justification, it is true that the Shari‟ah in general came for the interest of the Ummah, but we cannot use this argument as an „Illah (cause) to justify every ruling. All the rulings from Qur‟an, Sunnah, Ijma‟ as-Sahabah and Qiyas are there to satisfy our needs. In addition, a Muslim obeys and implements the rules as obedience to Allah (swt) and not because the rulings are easy, hard or connected with Maslahah (benefit). So we cannot use the benefit as a justification to legalise any action. There has to be evidence allowing such an action.

Regarding the second justification, by investigating all of these examples it will become obvious that the Sahabah (ra) understood the evidences thoroughly. The rules of Usul al-Fiqh were not written at the time. The Sahabah (ra) used to extract rulings because of their ability to understand both the language and text. We do not observe any actions by them, which did not have grounds from the text.

Regarding the compilation of the Qur‟an, it was not done because of Maslahah. The Sahabah (ra) understood that they had to do something to preserve the Qur‟an and this is in compliance with the Ayah:

“Lo! We revealed the Reminder, and Lo! We verily are its Guardian.” (TMQ Al-Hijr: 9)

In addition to the Ayah there is a Hadith asking Muslims to remove any harm or to avoid causing any harm. The Prophet (saw) said:

“There is no Harm or Harming” (Bukhari & Muslim), meaning that harm is not allowed.

What can be a bigger harm than losing the Qur‟an itself? What Uthman (ra) did by burning different copies of the Qur‟an and maintaining only one copy fits under the command of the above mentioned Ayah and Hadith.

Regarding Umar‟s (ra) cancelling the Hadd for cutting the hand during famine, it is in agreement with the requirement for cutting a person‟s hand for stealing. One of the requirements is that if the crime of theft happens during the famine, then the Hadd is lifted. So, Umar (ra) simply implemented the requirement. The Prophet (saw) said:

“No cutting in famine.” Also, the Prophet (saw) instructed us not to apply the Hadd in case of doubt. Above all, from the definition of Hukm Shar‟i, we should realise that it is the address of the Share‟, Allah (swt). Furthermore, it is well established from the Qur‟an that Allah (swt) has perfected our Deen and chosen Islam as that Deen. This indicates that the Shari‟ah is perfect. The concept of Maslahah, however, implies that there are some issues without rulings from Islam, and to fill this vacuum, we have to apply public interest. This concept is not correct and therefore, this type of Maslahah is invalid.