1 – Al-Istihsaan comes together with Al-Masaalih Al-Mursalah which were taken by Al-Imaam Maalik and that is because Al-Istihsaan represented the outweighing of the Qiyaas Khafiy over the Qiyaas Jalliy (apparent/evident analogy) due to the appearance of the Maslahah within the Qiyaas Al-Khafiy (hidden/concealed analogy). He also took a Maslahah Juz’iyah (partial interest) in opposition to a Qiyaas Kulliy (comprehensive Qiyaas).

2 – Al-Istihsaan in the opinion of Al-Imaam Ash-Shaafi’iy who declared it invalid and in the opinion of Al-Imaam Maalik who used it, incorporated and covered the Masaalih Al-Mursalah within it. Al-Imaam Maalik said: “Al-Istihsaan is nine tenths of Al-‘Ilm (knowledge)” and then said: “And Al-Istihsaan that is restricted to opposing the Qiyaas by the Maslahah counts for a negligible amount (of its usage)”.

3 – Al-Istihsaan and Al-Masaalih Al-Mursalah according to the view of those who used it as a proof is based upon Al-Qiyaas. That is because Al-Istihsaan represents the departure from a Qiyaas Jalliy to a Qiyaas Khafiy or the departure from Qiyaas to adopting based on the Daroorah (necessity) and the Maslahah (interest) to remove the hardship (Haraj). The Jins (type/kind) of Al-Masaalih Al-Mursalah is measured (analogised) upon the Jins (type) of the Masaalih Ad-Darooriyah (essential or necessary interests) that the Shar’a has mentioned like the preservation of the Nafs, Maal, Nasl, ‘Aql and Deen (life, property, progeny, mind and Deen).

4 – Al-Masaalih Al-Mursalah and Al-Istihsaan according to the definition of each of them are not based upon an explicit (Sareeh) text from the Sharee’ah texts but are rather based upon a semblance 256

(Shubhat) of a Daleel that the ‘Ulamaa have seen or perceived between the lines of the Sharee’ah texts.

5 – Al-Istihsaan and Al-Masaalih Al-Mursalah according to those who uphold it are both established upon the basis of removing or lifting Al-Haraj (the hardship or difficulty), acquiring the Maslahah and repelling the Mafsadah.

6 – The majority of the Maalikiyah view that there exists a clear difference between the two. That is that Al-Istihsaan occurs in the case where the subject of the Mas’alah (issue) is subservient to the Qiyaas and so in that case the Istihsaan comes negating that Qiyaas. As for the Maslahah Al-Mursalah, then it, in its branch issues, represents a Daleel for these issues (Masaa’il) in the case when there is no Daleel other than it.

As for Ash-Shaatibi then he viewed that there is no difference between them.

The relationship between Al-Istihsaan and Al-Masaalih Al-Mursalah can therefore be summed up in the following points:

- They have a connection with Al-Qiyaas.

- They give consideration and regard to the lifting of the Haraj (hardship/difficulty) from the people.

- The purpose of them is to bring or acquire the Masaalih and repel the Mafaasid.

- Each of them has a Shubhat (semblance) of a Daleel.

Note: The Ahkaam derived from the Daleel of Al-Masaalih Al-Mursalah are considered to be Ahkaam Shar’iyah and in particular those Ahkaam derived by the Imaams from the ‘Ulamaa like Al-Imaam Maalik and Al-Imaam Abu Haneefah (Note: May be Al-Imaam Ahmad Bin Hanbal was intended here). That is because they had a 257

Shubhat of a Daleel for these Ahkaam and also because many of these Ahkaam, as we explained earlier when refuting the Masaalih Al-Mursalah, are actually based upon a text from the Kitaab, the Sunnah or Ijmaa (As-Sahaabah). They are however not binding for the one who does not consider them to represent a Hujjah (proof and evidence) for the legislation.