The notion of maslaha, as a legal term, has given rise to numerous debates since it was first used, principally by the ulama of the Maliki school, against the firm opposition displayed by the Zahiri school, and in particular by Ibn Hazm. These quarrels were very often ill founded, and it seems that very often it was, more than anything, a question of defining relations to the sources and to the corpus of the Sharia.
In more recent times, this notion has been used to justify all sorts of new fatawa (plural of fatwa), even some that were manifestly in contradiction with obvious proofs from the Qur’an and the Sunna, as in the case of rules concerning interest (riba) and inheritance.
It is therefore important to recall briefly the early researches and studies carried out in this area, not only in order to understand the scope of maslaha but also to evaluate the advantages to be derived from applying it in the light of developments over time and from the diversity of contexts. The Imam Malik referred to the notion of istislah, which meant “to seek the good.” In his legal research, he therefore used the example of the Companions—who formulated numerous legal decisions in the light of the common good while respecting the corpus of the sources—to justify the fact that “to seek the good” (istislah) is one of the fundamentals of the Sharia and so is part of it. After the work of codification carried out by alShafii, the ulama, as we have recalled, began to set out distinctions between what were actually the sources and their areas of legal application, the hierarchy of values among the regulations, and so on.
Numerous ulama, such as al-Juwayni, in his Al-burhan, and the Mutazila Abu al-usayn al-Basri, in Al-mutamad fi usul al-fiqh, (both ulama lived in the eleventh century) refer to this notion in one way or another. At that time, the polemic had already begun concerning the definition of the exact meaning of this notion and its status within the Islamic legal apparatus. It is Abu Hamid al-Ghazali who, with his strict codification, provided the clearest framework for tackling this question from that time to the present. In his Al-mustasfa min ilm al-usul, he states very precisely: “In its essential meaning, al-maslaha is a term which means to seek something beneficial [manfaa] or avoid something harmful [madarra]. But this is not what we mean, because to seek the beneficial and avoid what is bad are the objectives [maqasid] intended by creation, and good [sahah] in the creation of humanity consists in the attaining of these objectives [maqasid]. What we mean by maslaha is the preservation of the objective [maqasid] of the Law [shar], which consists in five things: the protection of religion, life, intellect, lineage, and property. Whatever ensures the protection of these five principles [usul] is maslaha; whatever goes against their protection is mafsada, and to avoid it is maslaha.”
This general definition defines a structure on which almost all later ulama were to agree, for he refers implicitly to the sources without making a distinction between the objective of the good, which is found in the Qur’an and the Sunna, and how it is humanly stipulated when nothing is clearly stated in the sources. In fact, with this definition al-Ghazali placed himself above the disputes of the ulama, and when this light was shed on the subject, a more detailed codification in the nature of things opened the way for a precise understanding of maslaha and what was at stake in the legal argument; his contribution was therefore immense and central.
Al-Ghazali, still referring to the broad meaning of maslaha, mentions three different types: al-daruriyyat (the imperative), a category which has to do with the five elements of maqasid al-sharia (here in the sense of the objectives of the Law) listedearlier, that is, the protection of religion, life, reason, lineage, and property; al-hajiyyat (the necessary, the complementary), which has to do with the prevention of anything that could be a source of difficulty in the life of the community, without leading to death or destruction; and finally al-tahsiniyyat and al-kamaliyyat (the enhancing and the perfecting), which concern anything that may bring about an improvement in religious practice. These three levels cover all that can be considered as the masali (common good) of the human being considered as a person and as a worshipper of God, and this categorization was hardly ever questioned in debate and polemic.
What did give rise to disagreements and conflicts in the legal field was the question of discovering whether there was a real need for this notion within the Islamic legal framework or whether al-maslaha should be considered an independent source, though supplementary, of Sharia (and thus a part of the latter, and whose scope should be limited), or, finally, whether it should simply be seen as part of another source, such as qiyas (analogy). These various positions also rely on another qualification that distinguishes three types of masali (this time differentiated according to their classification, not according to their hierarchical importance), by which the ulama established a typology based on the degree of proximity of al-maslaha to the sources. If al-maslaha is based on textual evidence (i.e., a quotation from the Qur’an or the Sunna), it is called maslaha mutabara (accredited), and it must necessarily be taken into account. If, on the other hand, the maslaha invoked is contradictory to an undisputed text (nass qati), it is called mulgha (discredited) and cannot be taken into account. The third type occurs when there is no text: the Qur’an and the Sunna do not confirm but neither do they reject a maslaha that became apparent after the age of Revelation. A maslaha of this type is call mursala (undetermined), for it allows the “ulama” to use their own analysis and personal reasoning in order to formulate a legal decision in the light of the historical and geographical context, using their best efforts to remain faithful to the commandments and to the “spirit” of the Islamic legal corpus where no text, no “letter” of the Law, is declared.
It is this last type that has given rise to much debate and polemic (the analysis is beyond the scope of this study). Suffice it to say here that the main cause of disagreement was the fear, on the part of those opposed to the very concept of al-maslaha al-mursala, that such a notion, with such broad scope, might then allow the ulama to formulate regulations without reference to the Qur’an and the Sunna on the basis of exclusively rational and completely free reasoning, all in the name of a remote hardship or “an anticipated difficulty.” These were the main arguments of the Zahirite school, as well as numerous Shafii and even Maliki ulama who did not recognize al-maslaha al-mursala—not referring back to the sources—as a legal proof; they saw in it a specious (wahmiyya) proof, not valid for legislation. This was the same instinctive fear of an approach that was purely rational and not connected with the Law that pushed al-Ghazali to restrict work on al-maslaha to the area of the application of qiyas (analogy), which, of its nature, requires a close link with the text for the deduction of the cause (illa) on which analogical reasoning rests.
Some ulama in the course of history have formulated judgments in the name of al-maslaha and sometimes completely changed and disturbed the manner and conditions of the use of legal instruments within the Islamic framework. The particularly interesting example of the famous fourteenth-century Hanbali jurist Najm al-Din al-Tufi seems to have partly given them just reason to be fearful: al-Tufi ended up giving al-maslaha priority over texts from the Qur’an and the Sunna, which, according to him, should be applied, according to Mahmasani, only “to the extent that the common good does not require anything else.” Moreover, in our own times, we see very strange “modern Islamic legal decisions” based on “modern maslaha” that are clearly contradictory to the sources. The notion of al-maslaha al-mursala thus sometimes seems to justify the strangest behavior, as well as the most obscure commercial dealings, financial commitments, and banking investments, under the pretext that they protect, or could or should protect, “the common good.”
But this kind of excess was not typical among those who supported taking al-maslaha al-mursala into account as an authentic and legitimate source of legislation. They believed that the formulation of Islamic legal decisions should take place in the light of the Qur’an and the Sunna and in agreement with them and, moreover, upon certain demanding conditions (even if al-maslaha al-mursala should be considered as an independent source in the absence of any text). A careful study of the various opinions (for and against al-maslaha al-mursala) shows that the ulama are in agreement on numerous important points, even considering the conditions stipulated by supporters of the concept, among the first of whom was the alim of Grenada, al-Shatibi (fourteenth century). We find in his works a series of conditions and precise definitions regarding recognition of the “common good” as a reliable juridical source, which restrict its application and prevent the ulama from having recourse to al-maslaha without justification. Without going into too much detail, we may summarize the three generally recognized main conditions for situations when it is sure that no text has been enunciated:
- The analysis and identification must be made with serious attentionso that we may be sure that we have before us an authentic (haqiqiyya) and not an apparent or spurious (wahmiyya) The scholar must reach a high degree of certainty that the formulation of an injunction will avoid a difficulty and not do the opposite and increase problems in the context of the Islamic legal structure.
- The maslaha must be general (kulliyya) and be beneficial to the population and to society as a whole, and not only to one group or class or individual.
- The maslaha must not be in contradiction to or conflict with an authentic text from the Qur’an or the Sunna. If it were, it would no longer be a maslaha mursala but would be a maslaha mulgha.
These three conditions give us broad guidelines by which we can understand the concept of maslaha, the common good, in the Islamic frame of reference. What is clear above all is the supremacy of the Qur’an and the Sunna over all other references and legal instruments. Yusuf alQaradawi rightly recalls, taking up the ideas of al-Ghazali, Ibn al-Qayyim, and al-Shatibi, that everything found in the Qur’an and the Sunna is, in itself, in harmony with “the good of humankind” in general, for the Creator knows and wants what is best for human beings, and He shows them what they must do to achieve it. We find in the Qur’an, referring to the revealed message: “[the Prophet] who will enjoin upon them the doing of what is right and forbid them the doing of what is wrong, and make lawful to them the good things of life and forbid them the bad things, and lift from them their burdens and the shackles that were upon them [aforetime]”; “O human beings! An exhortation has come to you from your Lord, a healing for what is in your hearts, a guidance and a mercy for the believers.” We find the preference for the good of humanity in the first revelation (of the three that led to their eventual prohibition) concerning intoxicating drinks: “They ask you about intoxicating drinks and games of chance. Say: ‘These two things contain great harm for men as well as benefits; but the harm found in them is greater than the benefit.’ ”
Ibn al-Qayyim al-Jawziyya summarized the position as follows: “The principles and fundamentals of the Sharia concerning the injunctions and the good of humankind in this life and the next are all based on justice, mercy, the good of man, and wisdom. Every situation in which justice succumbs to tyranny, mercy to cruelty, goodness to corruption, wisdom to foolishness, has nothing in common with the Sharia, even if it is the result of an allegorical interpretation [tawill]. For the Sharia is the justice of God among His servants, the mercy of God among His creatures, His shadow upon His earth, and His wisdom, which is both the proof of His own existence and the best witness to the authenticity of His Prophet.”
To seek for the good (maslaha) of man, in this life and the next, is the very essence of Islamic commandments and prohibitions. If the latter are clearly proclaimed (qati al-thubut wa-qati al-dalala) in the Qur’an and/or the Sunna, they must be respected and applied in the light of an understanding of the whole body of the objectives of Islamic teaching, maqasid al-Sharia: they are, and represent, the revealed good maslaha granted by the Creator to His creature to guide him toward the good.
Nevertheless, the sources are sometimes silent. When facing new situations and problems, the ulama cannot find specific responses in the Qur’an and the Sunna; so, guided by the light of Revelation and the example of the Prophet, they have to formulate judgments such as will protect the best interests of people without betraying the frame of reference. These interests are called masalih mursala and require the total and constant commitment of the ulama if they are to make it possible for individuals to live as Muslims in all times and places and prevent them from carrying too heavy a burden, for God said: “God wants things to be easy for you, He does not want it to be difficult for you.”
So this is the framework within which we must consider the notion of maslaha, which has been a controversial concept, often because there has been a lack of clarity in the way it is defined and because of the strict and demanding conditions required for its application. It has sometimes suffered from excessive use by some ulama and scholars when they have tried to justify some “modern judgment” or “progress” in the name of almaslaha. We have seen that it is a very specific concept—in its definition, its levels, its types, and its conditions—and requires that the ulama constantly refer back to the sources so that they are able to formulate judgments in conformity with the revealed Message, even when there is no specifically relevant text. They must try—by carrying out a deep, thorough, and detailed study—to provide the Muslim community with new rational judgments guided by Revelation. This is the meaning of ijtihad, which is both the source and the legal instrument that allows a dynamism to be set in motion at the heart of Islamic law and jurisprudence.