MASLAHAH MURSALAH (Laws Based on Consideration of Public Interest)

Definition

 Literally, maslahah means 'benefit' or `interest'.

 When it is qualified as maslahah mursalah, however, it refers to unrestricted public
interest in the sense of its not having been regulated by the Law giver insofar as no
textual authority can be found on its validity or otherwise.

** The world Maslaha is taken from the root word “Saluha” or “Salaha” which means to
be good or to repair or to do good. Istislah on the other hand refers to the methods used by
Muslim jurists to solve problems (a good deed) especially when there are no explicit
guidance from the Qur’an and the Sunnah on such matters. Maslaha as a derivative
concept literarily means benefit or interest which is quite a generic expression. However,
when qualified to Maslaha Al Mursala, it means the benefit or interest of the public.

** According to Al Ghazali, any action or measure taken to secure these five values
(property, life, lineage, intellect, religion) as well as any action taken with the aim of
preventing evil (Mafsadah) is termed Maslaha.

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 Maslahah Mursalah = Making consideration on matters which are of public
interest(acquisition of good or removal of harm) for which there is no specific
evidence or basis (in relation to it specifically) in the Syariah, but which in a general
sense would agree with universal Syariah principles and goals. Consideration is made
of them in order to help protect and preserve the 5 necessities (life, religion, intellect,
wealth and honour) .
 It is a consideration which is proper and harmonious to the objectives of the
Lawgiver, it secures a benefit or prevents a harm, and the Syariah provides no
indication as to its validity or otherwise.
 Majority of muslim scholars agreed that :
- Maslahah Mursalah is a proper ground for legislation – when the maslahah
(objective) is identified & the scholars do not find an explicit ruling in the text of
AQ and Sunnah, he must act in its pursuit by taking the necessary steps to secure
it. It is justified by saying that God’s purpose in revealing the Syariah is to
promote man’s welfare & to prevent corruption in the earth.

Proof (Hujjah) of Maslahah Mursalah

1. Surah Al Anbiya’ : 107

-  “We hv sent you but a mercy for all creatures”

2.  Surah Yunus : 57
 - “O mankind, a direction has come to you from your Lord, it is a healing for the
ailments in your hearts..”
- the message for these 2 phrases here transcends all barriers that divide the
humanity, none must stand on the way of seeking mercy & beneficience to human
beings.

3. Surah Al Baqarah : 185

- “God never intends to impose hardship upon people”

- God also described that His purpose in the revelation of religion of Islam is not a
means of imposing hardship.

4. Surat Al-Maidah 5:6

- “Allah never intends to impose hardship upon people.”

5. Surat Al-Hajj 22:78

- “…He has not laid upon you in religion any hardship…”

6. Sunnah/Hadeeth:

- “ La dharar wa la dhirar fil Islam”

- “harm is neither inflicted nor tolerated in Islam.”

7. Sunnah/Hadeeth :

- “The Prophet did not choose but the easier of the two alternatives so long as it did
not amount to a sin.”

8. Sunnah/Hadeeth :

- “Muslims are bound by their stipulations unless it be a condition which turns a

haram into halal or a halal into haram.”

 *based on these hadeeths seems to grant muslims the liberty to pursue their benefits & to
commit themselves to that effect provided that this does not amt to a violation of the explicit
commands & prohibitions of the Syariah.

9. Sunnah/Hadeeth :

- “God loves to see that His concessions (rukhas) are observed in the same way that
His strict laws are obeyed.”

 *it is confirmed that no unnecessary rigour in the enforcement of the ahkam(rulings) is

recommended, & that the Muslims should avail themselves of the flexibility & concessions
that the Lawgiver has granted them & to utilize such in pursuit of the masalih (public
interest).
** From all of these general sources, what is clear is that the concept of Maslaha is generally
to propose a framework of rules guiding actions that are beneficial for public interest or
actions that do much more good than harm to the greater public in areas of human endeavor
that are not explicitly addressed by canonical sources.

 Legal maxims (the principle get from Quran / Sunnah) that are related to the hadith
and relevant as authority for maslahah mursalah:
o a specific harm is tolerated in order to prevent a more general one.
- (‫)ﺍﻠﻌﺎﻡ ﺍﻟﺿﺮﺮ ﻠﺪﻔﻊ ﺍﻟﺨﺎﺺ ﺍﻠﺿﺮﺮ ﻴﺘﺤﻤﻞ‬
o Harm is eliminated to the extent that is possible
- (‫)ﺍﻻﻤﻜﺎﻦ ﺒﻗﺪﺮ ﻴﺪﻔﻊ ﺍﻠﺿﺮﺮ‬
o A greater harm is eliminated by means of a lesser harm
- ( ‫)ﺍﻷﺧﻑ ﺑﺎﻠﺿﺮﺮ ﺍﻷﺷﺪ ﺍﻠﺿﺮﺮ ﻴﺰﺍﻞ‬
o Neccessity makes the unlawful lawful
- (‫ ﺍﻠﺿﺮﻮﺮﻴﺎﺕ‬h‫)ﺍﻠﻤﺤﻇﻮﺮﺍﺖ ﺘﺑﻴﺢ‬
Eg: jurists validate demolition of an intervening house to prevent the spread of fire to
adjacent building
Validating the dumping of the cargo of an overloaded ship to prevent the danger to the life of
its passengers.

View of Imam Malik for MM as a proof and basis of legislation :

 The Companions has validated it & have formulated the rules of Shariah on its basis.
 When the MM is compatible with the objectives of the Law giver or that it falls within
the genus or category of what the lawgiver has expressly validated, it must be upheld.
 When MM is of the genus of the approved MM & it is not upheld, the likely result
would be to inflict hardship on the ppl, which must be prevented.

3 TYPES OF OBJECTIVES OF SYARIAH

1st type - ESSENTIALS/NECESSITIES VALUE (DARURRIYAT)

 5 essential value (al dharuriyyat al khamsah)s i.e. religion, life, intellect, lineage &
property – must not only be promoted but also be protected against any real or
expected threat which undermine their safety. To uphold the faith would thus require
observance of the prescribed forms of ibadat(ritual), whereas the safety of life and
intellect is secured by obtaining lawful means of sustenance as well as the
enforcement of penalties which the Shariah has provided so as to protect them against
destruction and loss. // Maslaha Al Dharuriyat refers to those actions or deeds that are
absolutely essential. A neglect of any of these actions or deeds could lead to
damaging circumstances or chaos to the community.

2nd type - COMPLEMENTARY VALUE (HAJIYYAT)

  the whole supplementary to the 5 essential values & they refer to interests whose
neglect leads to hardship in the life of the community although not to its collapse.
Thus in the area of ibadat the concessions that the Shariah has granted to the sick & to
the traveler not to observe the fast, & shorten the solat, (prayer) are aimed a
preventing hardship. // Maslaha Al Hajiyat on the other hand refers to actions
supplemental to the five essential values whose neglect could lead to hardship of
certain elements or all of the community but not essentially to a collapse.

3rd type - EMBELLISHMENTS VALUE (TAHSINIYYAT)

 refers to interests who realization leads to improvement & the attainment of that
which is desirable. Thus the observance of cleanliness in personal appearance &
ibadat, moral virtues, avoiding extravagance in consumption & moderation in the
enforcement of penalties fall within the scope of tahsiniyyat. // Maslaha Al Tashsiniya
refer to actions and deeds that lead to the improvement of the community and elevates
it to the desirable status.

Condition of Mursalah Maslahah

1. The benefit must be genuine (haqiqiyyah) – must be a reasonable in its aim to protect the
rights of man. // A first condition in this framework is that the Maslaha (benefit) must be
genuine (haqqiqi) in its aim to protect the rights of man Shariah. It should evidently be seen
how this action helps to prevent sedition or clarify misunderstandings about the Islamic belief
system (protection of faith), or how the action creates and enabling and caring environment
for children (protection of lineage), how the action prevents unnecessary injury to man and
animals or loss of life (protects life), how the action ensures justice in trade and other
financial transactions (protects property)or how the action incentivizes research and
development and discourages laziness (protection of the intellect).

2.  The benefit must be general (kulliyah) in that it secures benefit, or prevents harm, to the
ppl as a whole & not to a particular person or group of persons – must contemplate a benefit
to the largest possible number of ppl. – the whole concept of maslahah derives its validity frm
the idea that it secures the welfare of the ppl at large.

 3. The benefit is not conflict with a principle or value which is upheld by the nass (AQ &
Sunnah) or ijma’ – has to make sure that the new principle formulated does not clash with a
text or existing principles (nass) and propositions of Islamic law or attempt to alter the
implication of a text.

 4. The benefit must be rational (ma’qulah) & acceptable to the people of sound intellect. This
is in reality means that the norm it promotes must be among the purposed of Islamic law
recognized by the syariah. 

5. It must prevent or remove hardship from the people.

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Conditions of Maslahah

1. The maslahah must be genuine (haqiqiyyah)

 Protecting the faith – necessitates prevention of sedition (fitnah) and propagation of

hearsay
 Protecting intellect – promotion of learning, providing education
 Protecting of lineage – creation of favourable environment for care and custody of
children
 Protecting property – facilitating fair trade and lawful exchange of goods and services
in the community.
 Examples:
- registration of marriage in the court and the issue of marriage certificate
- the recording of land transfer in the Registry departments - prevents false
testimony and fraudulent land transfer.
- consumer protection law
- regulation on wearing of helmets and fastening of seatbelt.

2. The maslahah must be general (kulliyyah)

 It secures benefit or prevent harms to the people as a whole and not to a particular
person or group of persons
 Acquisition of land for the purpose of development?
 Minimum age for marriage

3. Not in conflict with the nusus

 the legalisation of usury (riba’) on account of the change in circumstances?

 Is there any maslahah?
 Conflict? = Yes, it is practice comes into conflict with the clear nass of the Quran
- ‫لبيع‬١ ‫لربى وحرم وٲحل هللا‬١
 Working as a bartender? Waiter/waitress serving khamr?
 Prostitution as an occupation?
- Is there maslahah?
- Protecting life?
- Conflicting with nusus?

Types of Maslahah:
i. Maslahah al Mu’tabarah(Accredited Maslahah)
ii. Maslahah Mulgha (Invalidated Maslahah)
iii. Maslahah Mursalah (Maslahah that has been validated after the divine revelation came to
an end
i. Maslahah al Mu’tabarah(Accredited 公认 Maslahah)

 Maslahah which the Law Giver has expressly upheld and enacted a law for its
realisation.
 Protecting life by enacting the law of retaliation or defending the right of ownership
by penalising the thief or protecting the dignity and honour of the individual by
penalising adultery and false accusation. (Maslahah dharuriyyah)
 The lawgiver has upheld that each offence constitute proper ground for punishment in
question.
 The validity of maslahah in these cases is definitive (‫ )ﻗﻂﻌﻰ‬and no longer open to
debate.
 Shortening and combining of prayers or break fasting when travelling – parts of
rukhsah – maslahah hajiyyah

Maslahah which the Quran or sunnah has expressly upheld and has enacted a law for its
realisation. This is called al Maslahah mu’tabarah or accredited Maslahah. This type of
Maslahah cannot be rejected and must be upheld. For instance, Islam has ordered its
followers to protect their intellect and, therefore, Islam has forbidden the consumption of
liquor by its followers. So, even if the consumption of liquor is accepted and common among
the people, this practice is still forbidden because it is against the Maslahah that was ruled out
by the Quran and Sunnah. Similarly, any other items of consumption, which can harm the
intellect, is also forbidden even though it is a common practice of the people to consume it.
The validity of Maslahah in this case is definite and shall not be questioned. Scholars are in
agreement that promoting and protecting this and other similar values constitutes a proper
ground for legislation. The fact that Allah has upheld them is equivalent to his permission and
approval for all measures, including legislation, that aim at their realization.

ii. Maslahah Mulgha (Invalidated Maslahah)

 It is a maslahah which the Lawgiver has nullified either explicitly or by indication that
could be found in the shariah.
 Ulama’ agree that legislation in pursuant of such interests is invalid and no judicial
decree maybe issued in their favour
 Example:
- An attempt to give the son and daughter equal share in inheritance on the assumption
that this will secure a public interest.
- Since there’s a clear nass in the Quran which assigns to the son double the portion of
the daughter, the maslahah in this case is clearly nullified.
- Right to divorce:
o Some said it should also be given to the wife because of maslahah
o Is there a maslahah? = Maslahah mulghah.

The second type of Maslahah is the invalidated Maslahah, or Maslahah mulgha which the
Quran or Sunnah has nullified either clearly or by indication that could be found in sharia.
The scholars are agreement that legislation based on such interest is invalid and no judicial
ruling may be enacted in its favor. Similarly, the practice of people that is included in this
category is invalid and cannot be considered. For example, the practice of usury in
transactions, even though it is common among the people, is invalid because the Maslahah in
this case is clearly nullfilled (mulgha).

iii. Maslahah Mursalah (Maslahah that has been validated after the divine revelation came
to an end

 Maslahah which has been validated after the divine revelation came to an end.
 Maslahah Mursalah is unrestricted public interest in the sense of it not having been
regulated by the Lawgiver insofar as no textual authority can be found on its validity
or otherwise.
 The Lawgiver has neither upheld nor nullified the necessary legislation
 More technically, Maslahah Mursalah is defined as a consideration which is proper
and harmonious with the objectives of the Lawgiver; it secures a benefit and prevents
a harm; and the Shariah provides no indication as to its validity or otherwise.
 Example:
- Introduction and the use of currency
- Establishment of prison
- Imposition of tax (kharaj) on agricultural lands in the conquered territories
despite absence of textual authority.
- The collection and compilation of al-Quran in a single volume
- The introduction of land tax
- The right to inheritance of a woman whose husband had divorced her during
death sickness
- The ruling of Umar that his officials must be accountable for the wealth they
had accumulated in abuse of public office and expropriation of such wealth
- Establishment of an organised military force department or defence ministry
(Diwan al-Jund) and Diwan al-Ata’ (sort like ministry of finance) but to
distribute money to the public – established by Sayyidina Umar
- Administration of justice

The third variety of Maslahah is the masalih that has been validated after the divine
revelation came to an end, namely the Maslahah mursalah. For this type of Maslahah, there is
no text that validates it or invalidates it. There are many legislations enacted in the past and
present based on this kind of Maslahah. Among the examples from the past are the
codification of al Quran carried out by the companions after the demise of the Prophet S.A.W
and the rulings of imposing the death penalty for a group of people who are involved in
killing a person. The contemporary utilization of Maslahah mursalah can be observed in
different enactments of the law, which benefits the people and prevents them from harm such
as traffic regulation that different regulation related to financial management, regulations
related to family matters and so on.

Examples of Maslahah in modern times

  The law on road safety
 The law on wearing helmet
 The requirement on identification card
 The HIV test before marriage
 Needle and Syringe Exchange Programme
 Marriage
- Pre – marital course
- Marriage certificate
- wearing bangle/bracelet/neclace for male pilgrims
- Separate coach/section for women in public transport
 Islamic Banking system and products
 Increase in the price of cigarettes
 ISA?
 Income tax
 Insurance
 Manufacturing contract
 Business contracts through modern telecommunication
 Payment by installment
 Warranty on purchased goods

**validity of MM = http://www.questjournals.org/jrhss/papers/vol2-issue5/G256671.pdf