Public Interest (Maslahah)

Sheikh Zoubir Bouchikhi, Imam of the Islamic Society of Greater Houston’s Southeast Mosque, states the following: “There are many verses in which Allah the Almighty clearly show us that this Deen is for both the Dunya (the worldly life) and the Akhirah (Hereafter). Among those verses:
“And of them (also) is he who saith: ‘Our Lord! Give unto us in the world that which is good and in the Hereafter that which is good, and guard us from the doom of Fire.'” (Al-Baqarah: 201)
The word “Dunya” also is mentioned in the Qur’an 115 times exactly like the word “Akhirah“, and this means something. The Prophet (peace and blessings be upon him) also said, “Seek what brings benefit to you…”, and this is a clear statement about the maslahah.
Having said this, the maslahah has to be Shar`iyyah, which means it should not contradict a clear text from the Qur’an and from the Hadith of the Prophet Muhammad (peace and blessings be upon him).
There are also many examples from Islamic History to prove the aforementioned such as when the enemies take hostages, what should the Muslims do in this case? Should they attack the non-Muslims and kill the Muslims who were hostages also or should they stop the fight?
`Umar ibn al-Khattab (may Allah be pleased with him) did not divide the land of Iraq to the Mujahideen who opened that land, which seems to be against the Qur’an and the Sunnah of the Prophet (peace be upon him) who was dividing the land to the Mujahideen as war gains, but he (`Umar) observed a much greater maslahah or benefit Islam and the Muslims which is the continuation of Jihad up to China. There are other evidences that could be mentioned here.”
Elaborating on public interest and its conditions, Shah Abdul Hannan stated in his book Usuul fiqh that:
Maslahah literally means benefit or interest. When qualified as maslahah mursalah it refers to unrestricted public interest. Maslahah mursalah is synonymous with Istislah which is also called maslahah mutlaqah. Al-Ghazali thinks maslahah consists of considerations which secure a benefit or prevent harm. Protection of life, religion, intellect, lineage and property is maslahah.
On the basis of maslahah, the companions decided to issue currency, to establish prisons and impose Kharaj (agricultural land tax). The scholars of Usul (Principles of Islamic Jurisprudence) are in agreement that Istislah is not a proof in respect of devotional matters (`Ibadat) and in respect of specific Shari`ah injunctions like shares of inheritance. The majority of jurists maintain that Istislah is a proper ground for legislation. Ash-Shatibi points out that this is the purpose of the Qur’anic verse: “We have not sent you but as a mercy for all creatures.” (Al-Anbiya’: 107) There is support for maslahah in the Qur’an in surat Yunus (10: 7), al-Hajj (22:78) and al-Ma’idah (5: 6).
The jurists have quoted a number of hadiths in support, such as the following: “No harm shall be inflicted or tolerated in Islam.”
“The Prophet (peace and blessings be upon him) only chose the easier of two alternatives so long as it did not amount to a sin.” “Allah loves to see that His concessions (rukhas) are observed, just as He loves to see that His strict laws (`aza’im) are observed.”
The above would confirm that no unnecessary rigor is recommended in the enforcement of the (ahkam) rulings and that the Muslims should avail of the flexibility and concessions of Shari`ah.
All the Rightly Guided Caliphs acted in pursuance of maslahah. Abu Bakr (may Allah be pleased with him) compiled the Qur’an. `Umar (may Allah be pleased with him) held his officials responsible for abuse of public office. `Uthman (may Allah be pleased with him) distributed the authenticated copy of the Qur’an and destroyed the copies of variant texts. `Ali (may Allah be pleased with him) held the craftsmen and traders responsible for the loss of goods that were placed in their custody.
Maslahah has been upheld by the majority of scholars. However, strong support for it comes from Imam Malik. Maslahah has been divided into three types by Ash-Shatibi and some other scholars: a) essentials (daruriyyat), b) the complementary (hajiyyat), and c) beautifications (tahsiniyyat).
From the point of view of availability or otherwise of textual authority, maslahah has been further sub-divided into the following:
a) Maslahah Mu`tabarah (accredited maslahah) which has been upheld in the Shari`ah such as defending the right ownership by penalizing the thief.
b) Maslahah Mursalah is that which has neither been upheld nor nullified by the Shari`ah such as provision in law in many Muslim countries for documentary evidence to prove marriage or ownership of property.
c) Maslahah Mulghah which has been nullified either explicitly or by indications in Shari`ah.
To validate maslahah the following conditions have to be met:
a) Maslahah must be genuine,
b) Maslahah must be general (kulliyah) – that is it secures the interest for all.
c) It must not be in conflict with clear Nass (textual evidence).
In his book Masalih al-Mursalah, At-Tufi maintains that except for Ibadat (devotional matters) or specific Shari`ah injunctions, masalih (plural of maslahah) should take precedence over other proofs. However, this view is not held by the majority.
As regards to the relation among Qiyas, Istihsan (Juristic Preference) and Istislah, it may be stated that Qiyas and Istihsan are essentially based on `illah (effective cause) in the Nusus (hidden or obvious). Law is expanded by Qiyas or Istihsan on the basis of `illah of Nusus (textual evidences). But when law can not be made on the basis of Nusus or through Qiyas and Istihsan, law is made on the basis of maslahah or public interest. A group of scholars have seriously disagreed with maslahah. But they are a minority and their arguments are not very solid. To meet the new situations in the changing world, maslahah is a major instrument in the hands of jurists of Islam.”