The Arabic term maslaha61 means interest or benefit, and the term mursala literally means unrestricted or absolute. Maslaha mursala is one of the most important sources of Islamic Shari’a and usually referred to when facing issues for which there is no injunction that can be found either in the primary sources or in Qiyas. Maslaha mursala technically means: the consideration of public interest in articulating Shari’a-based rulings. Any action or policy that brings benefit to the community or
57 Muhammed al-Shawakani (d.1759) gives several definition for Qiyas from the writing of the early Muslim scholars. Irshad al-Fuhul (Dār al-Fazila 2000) 840 et seq.
58 Zedan, above n 30,196.
59 The Qur’an 5:90.
60 Al-Zarqa, above n 18, 82 et seq. He gives various example of the application of Qiyas which were based on the Qur’an and the Sunnah.
61 Al-Ghazali uses the term istislah in his renowned book al-Mustasfa as synonym to maslaha mursalaAbu Hamid al-Ghazali, al-Mustasfa, (al-Jami’a al-Islamiyya) vol 2, 478.
33 prevents harm, and for which there is no specific text to demonstrate its validity or otherwise is considered as maslaha mursala.62
It is established in Islamic jurisprudence that the interest and welfare of the community is the highest priority in Islamic Shari’a ‘and We have not sent you, [O Muhammad], except as a mercy to the worlds’.63 In Islamic jurisprudence, the highest priorites, also known as Maqasid al-Shari’a or ‘the main objectives of Shari’a’, are to protect, preserve and promote: (1) religion (Dīn); (2) life (nafs); (3) intellect (ʿaql); (4) lineage (nasl) and (5) wealth (mal). In this regard the eminent scholar IzDīn Ibn Abd-Alsalam (1261 CE) says ‘Islamic Shari’a is all about an interest in preventing harm or bringing about benefits’.64
Accordingly, any new issue facing Muslim community would be considered within the parameters of maslaha mursala only if these issues help in preserving one or all of the objectives of Islamic Shari’a. For instance, new developments in the field of health would be considered under maslaha mursala if they assist in preserving the life or the intellect of Allah’s creations whether human or animal.65
For an interest to be considered as maslaha mursala and thus as a source of Shari’a it has to meet certain conditions66:
1. It must be certain, and this condition is fulfilled after conducting an evaluation to determine if its consequences constitute a definitive interest to the community.
2. It must be general, in that benefits it the whole community or or the majority of its members, and not only a limited number. This resembles what is known in Western political thought as ‘the greatest good for the greatest number’.
3. It must be compatible with the primary sources and must not breach fixed principles provided in the Qur’an, Sunnah or Ijma’.
62 Muhammed Sa’īd al-Būti, dawābit al-maslaha fi al-shari’a al-islamiyya (PhD Thesis, Faculty of Shari’a al-Azhar University,1965) 329. Maslaha mursala is classified here into different categories:
masalih dharūriyya (essentials), hajiyya (complementary) and tahsiniyya (embellishments).
63 The Qur’an (Sahih International trans) 21:107.
64 Al-‘izz Ibn Abd al-Salam, (d. 1261C.E) Qaw’aid al-Ahkām fi Islāh al-Anām (Dār ibn Hazm, 2003)14.
65 For more on this see al-Tahir B. Ashur, Maqasid al-Shari’a al-Islamiyya (Dār al-Nafa’is, 2001) at 302.
66 Abd al-Wahhab Khallaf, Usūl al-fiqh (Maktabat alda’awa al-Islamiyya/shabab al-Azhar 2002) 86.
34 For instance, if we take the example of IP and expose it to the concept of maslaha mursala, we need to consider specific issues to determine whether it can be regulated as part of Shari’a. First of all, we should look into the primary sources and Qiyas and see if there is a ruling for its validity or otherwise. If we find that there is no ruling, then, the research should move to evaluate the system of IP and determine whether it prevents harm or brings benefit to the community. If the overall assessment of the IP system suggests that its benefits outweigh its potential harm it will, then, be accepted into Islamic Shari’a by virtue of maslaha mursala. A detailed assessment of the benefits and harms of IP from an Islamic perspective is contained in Chapters 3 and 4.
Maslaha mursala has been used since the age of the righteous successors of the Prophet (632 to 661CE), and various examples can be provided to illustrate its operation.67 In a legal context, Imam al-Shatibi (1388 C.E) provides an example relating to the responsibility of craftsmen in one of his important works, al-‘itesam.
It has been reported that the righteous successors of the Prophet ruled that a craftsman should be held liable for the objects under his or her care.68 Although the Qur’an and the Sunnah said nothing about this issue, the righteous successors issued a ruling based on maslaha mursala. The public interest pursued in this case is the encouragement of craftsmen to take reasonable care of the property of others.
Professor Muhammed Sa’īd al-Būti in his 1965 PhD research at the Islamic University of Alazhar concludes that maslaha mursala as a source of Islamic Shari’a is ‘undisputedly acceptable according to the opinions of the companions of the Prophet, their followers (tabiun) and the four main schools of Islamic law’.69 The importance of maslaha mursala continues today, as will be discussed below.
2.3.2.3 Istihsan (Juristic Preference)
Istihisan literally means preferring one thing to another.70 The concept of istihsan as a secondary source of Islamic Shari’a is widely disputed, but was given various definitions which appear to denote the use of the jurist’s discretion in departing from
67 Al-Būti, above n 62, 353.
68 Al-shatibi, al-I’tisam (Maktabat al-Tawhīd) Vol 3, 319.
69 Al-Būti above n 62, 407, it is widely believed that the leading school that considers maslaha mursala as a source of Shari’a is the Maliki school which is the dominant school of Shari’a in Libya and North Africa in general.
70 Khaled Ramadan Hassan, Mu’jam Usūl al-Fiqh (Dār al-Tarabishi 1998) 29.
35 an established rule derived from Qiyas where it would lead to rigidity and unfairness, in favour of a new rule which the jurist prefers and finds to be more appropriate.71 Kamali observes that istihsan in Islamic Shari’a is the counterpart of the principles of equity in the Western legal systems, and maintains- in this regards- that:
Istihsan in Islamic Law and equity in Western law are both inspired by fairness and conscience and both authorise departure from a rule of positive law when its enforcement leads to unfair results. The main difference between them is, however, to be sought in the overall reliance of equity on the concept of natural law, and of [Istihsan] on the values and principles of [Islamic Shari’a].72
Accordingly, isthisan can be considered as opposite to Qiyas. This is because if Qiyas operates by deducing injunction for a case by looking into its counterparts in the main sources. Isthisan allows jurists to use reason to isolate new case from its counterparts73 if using the same injunction given to those counterparts would lead to unfair results.
Isthisan is divided into several categories74 the explanation of which is beyond the scope of this chapter. One simple example regarding its application to ‘contracts of deposit’ suffices. A contract of deposit is grounded in Shari’a on honesty and the good well of the depositary. If a dispute arises between the depositor and depositary, the claim of the latter will be considered true75 until the other party brings iron-clad proof to the contrary. Istihsan was used here to depart from an established rule of evidence in Islamic Shari’a which requires the plaintiff to prove his/her claims and the defendant to swear an oath denouncing them, to a new rule that gives the claim of the depositary credibility without swearing.
2.3.2.4 Istishab (Presumption of Continuity)
Istishab literarily means companionship76 or continuation of companionship. Al-Shawkani (1759 CE) concluded that istishab means the continuation of an established rule whether it proves or negates a fact so long as there is no iron-clad
71 Zedan, above n 30, 231.
72 Kamali, above n 21, 309.
73 Al-Zarqa, above n 18, 88.
74 Al-Shawakani, above n 57, 989.
75 Muhammed Khidr Hussain, above n 20, 81.
76 Hassan, above n 70, 33.
36 evidence that it should not be employed.77 Basically, istishab directs the jurist to assume that an established legal or factual matter should continue to exist if the concerned party cannot prove his claim. For instance, if a contract of sale has been concluded by which the ownership of the subject matter transferred from A to B.
Were A to then file an action to claim ownership, the judge in this case would presume that ownership has remained with B even if there is a probability that the circumstances have changed78 (e.g. the subject matter is under the possession of A) so long as the contract of sale is valid. In this sense istishab appears to be more a method of ruling than source of its own, as it is apparent from its definition that it does not function to deduce or infer new ruling or injunction but rather it instructs the jurist to rule by virtue of the established status quo unless new evidence comes to light. That is why it is widely accepted among jurists of Islamic Shari’a that istishab should be used only in the complete absence of ruling in the other sources.
2.3.2.5 Urf (Custom)
The literal meaning of the Arabic word ‘urf’ is ‘that which is known to people’. As one of the secondary sources of Islamic Shari’a, urf means the general continuous practices that are acceptable to people of a certain locality, provided those practices are compatible with the principles of the main sources.
Within the Islamic community, if people have continued to practise certain conduct in any field of life over a reasonable period of time this conduct becomes urf. In order for the urf to be considered by Islamic Shari’a, it has to be compatible with the primary sources urfe Sahih (approved urf). If the practices of the people constitute urf fasid79 (invalid urf) such as giving riba (usury) to creditors, they will not be considered as part of the secondary sources of Shari’a regardless of the number of people who deal with usury.
Professor Wahba al-Zuhili observes that Muslim jurists, especially Hanafis and Malikis regard urf as a source of Shari’a and consider all the injunctions which derived from a valid urf equal to the injunctions which are derived from the primary sources.80 For instance, urf plays significant role in determining the rights and
77 Al-Shawkani, above n 57, 974.
78 Abu Zahra, above n 26, 296.
79 Abdalwahab Khalaf, above n 66, 89 et seq.
80 Al-Zuhili, above n 20, 831
37 obligations of the spouses before the marriage contract is concluded, during the marriage and after the end of the marriage (e.g. urf gives the wife the right to keep the furniture of the house if the husband divorces her).81
Furthermore urf plays an important role in interpreting the Qur’an and Sunnah. In his well-known work of Islamic Jurisprudence‘al-ashbah wa al-nazair, al-Suyuti reports that ‘all the injunctions of Shari’a which appear in broad terms, are to be interpreted according to urf.’82
Rules which are derived from urf become part of the sources of Shari’a, but this does not mean that those rules are unchangeable. It is widely accepted in Islamic scholarship that new urf repeals old urf so long as the new urf meets an essential condition: compatibility with the primary sources.83