Comparative Analysis of Maslahah and Maqasid

July 20, 2021

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Maslahah

The word “Maslahah” in Arabic means “to receive the benefit and harm diversion”. In the Sharia, the concept of Maslahah can be construed as a blessing, favor, or interest. In terms of the legal use of Maslahah, there exists an argument that the Sharia observes the human right to receive advantages and the good, while prohibiting the harmful and rejoicing the good. Maslahah al-Mursal is a Maslahah, which features the fact that its legality or illegality is not specified through an explicit argument from the Quran and Sunnah. In general, there are three types of Maslahah (Vikor 271).

The first one is Maslahah, the validity of which is indicated by the Sharia. The ban on wine is one such example. Maslahah in this case is that the person giving up the wine protects his/her mind from drunkenness and intoxication, thereby obtaining the good and benefits. This argument stipulates the Maslahah of Sharia, under which drinking wine is haram. The Sharia makes decisions based on Maslahah allowed in the unanimous opinions of the sheikhs.

The illegality of Maslahah is indicated by the Sharia. Actions that fall under this category may outwardly seem to be useful, but actually pose a threat to humans in this life and the next life (Gleave and Kermeli 116). In this form of Maslahah, smoking is hukm. For example, based on the fact that Maslahah sustains life, people may prefer to give in to the invaders of the Muslim lands to save their lives instead of fighting with them. Shariah Maslahah rejects this because the action seeks to lessen the respect and pride of the Islamic Ummah and harms the Muslim religion (non-believers can make a person withdraw from Islam). The Sharia maintains that Allah Almighty ordered the Muslims to wage jihad, i.e. in this case the preservation of life is inferior and Maslahah should save the religion of Islam and the dignity of the Muslims. It is mandatory to wage jihad, despite the fact that a person may die during the hostilities.

From the point of view of ordinary thinking, people may decide that polygamy is harmful as it may lead to hostility among women, and in order to prevent such harm, it is better to abolish polygamy (Ramadan 57). However, Maslahah rejects the Sharia, which declares that men are allowed to marry up to four women, provided that it is valid in relation to all the wives. Also, polygamy is the cause of other goods, such as giving birth to many children, which is one of the central reasons for marriage. There is also a category of men who are not able to be satisfied by one woman. Imposing a ban on polygamy could be the reason for them to commit adultery. In addition, many men prefer to marry many wives. Also, during the hostilities, many men tend to die and a large number of women are left without husbands. In this case, the fact that a man can marry several women can be a great boon for women who can get married again and get custody and material support from their new husband (Vikor 307).

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Another example is the illegal kind of Maslahah usury. The person who borrows money with interest may seem to benefit from the deal as he/she is able to spend borrowed money on needs. Obviously, it seems to be good for someone who lends money with interest. In this case, their Maslahah is from the perspective of reason, but this Maslahah Shariah does not recognize the plight of shylocks who exploit fellow humans. In this point of view of the Sharia, riba is a source of great evil and harm for the individual and society as a whole. Usury generates such a phenomenon as the exploitation of man by man; there are people in the society who live at the expense of others, making profit without applying any efforts. At the same time, there is a category of people who are forced to work hard and endure hardships to repay the debt. Such a state of affairs in the society is regarded as a great injustice by the Sharia.

Maslaha al-Mursal is a Maslahah of the legality or illegality and does not indicate a specific argument of the Sharia. There is a disagreement among the sheikhs whether it is possible to rely on this Maslahah when making a decision on a Shariah matter and whether the Maslahah bears one of the sources of the Sharia (along with the Quran, the Sunnah). However, many sheikhs are of the opinion that a number of conditions based on Maslahah al- Mursal when making the Sharia hukm should be allowed (Warmer 33). The validity of using this type of Maslahah as an argument indicates that the Sharia observes the human right to receive the benefit and the good. This is a generally accepted principle of the Sharia, according to scientists. One example of this Maslahah in the history of Islam is an act of righteous Caliph Umar, the anhu that legitimized the Islamic Caliphate state agencies, founded a prison for criminals. In the Sharia, there is no argument that the Muslims should build prisons for criminals or open public institutions. However, these actions are Maslahah al-Mursal, i.e. things with a benefit for the Islamic state.

Consequently, the act is consistent with general principles of the Sharia, i.e. to be a good Muslim. Also, an example of this type of Maslahah is met in one book of the Quran righteous Caliph Abu Bakr, the anhu (Kamali 252). Its validity or irregularity in the Quran poses no argument for the Qur’an or the Sunnah, but in this case the Maslahah is good for the Muslims. Maslahah al-Mursal has several categories, including the Hell – dururiyat. There are a number of things, without which human life would be in disorder, i.e. these things facilitate human beings in this life, as well as in the next one. Five such things are: conservation, religion, preservation of life, preservation of mind, maintaining kinship, and preservation of property. For example, if people abandon religion, it will lead to a great punishment for them in the next life.

Al-Hajj is the second category. This category includes things without which human life is possible, though difficult. An example of this category is Maslahah transfer of power wali (a guardian) over marrying underage girls. The implication is that if the girl decided to marry, it could affect her rationale for a sustainable husband, consequently causing serious problems in the future. The ruling of the Sharia gives an underage girl a right to marry with a sound mind and she is facilitated to select a suitable man for herself (Gleave and Kermeli 226). Al- tahsinat is the third category. This category includes things that contribute to improving the quality of life, but the lack of which makes life impossible or difficult. For example, wearing beautiful clothes is permitted by the Sharia and it can be good for men. However, refusal to wear beautiful clothes will not lead any difficulties in life (Ramadan 15). This Maslahah refers to the good, not contradicting the Sharia, customs, and nice deeds.

Most sheikhs recognize Maslahah al-Mursal as the Sharia argument along with the Quran and the Sunnah. Maslahah al-Mursal Sharia is the basis of reducing the hukm in cases when there is no clear decision on the basis of the Quran, the Sunnah, ijma, and Kiyas istihsana. Sheikhs give the following proof of the legal use of Maslahah al-Mursal as an argument in the Sharia. At the heart of all provisions of the Sharia, there is a benefit or advantage for the Islamic Ummah, as well as protection of the Muslims from the harm and evil. The validity of the principle of the Sharia is to purchase the good for the Ummah and dismis anything that might harm it, as ijma sheikhs indicates no alim who would say that the Sharia requires a person to do the work, which is no good for him/her, or prohibits things that do not harm. All that is forbidden by the Sharia is harmful to the Ummah, and all that the Sharia has permitted bears advantages to humans (Hallaq 145). Over time, there are new Maslahah (good and useful). It is impossible to list everything that can be a boon for people as these things cannot be counted. If to accept that Maslahah al-Mursal is illegal in the Sharia and take into account only those types of Maslahah, which indicate a clear argument from the Quran, Sunnah, etc., many good and useful things will be beyond the Sharia and it will bring great harm to the Muslims.

Abu Bakr al-Siddiqov collected verses of the Quran that were written on bones and palm fibers in a roll. The legality of this action does not indicate a specific argument of the Sharia, the argument in this case being Maslaha al-Mursal (Argunduz 31). In addition, Abu Bakr al-Siddiqov declared war on people who refused to pay zakat and appointed himself Caliph Umar. Righteous Caliph Umar ibn a-Khattab also resorted to Maslahah al-Mursal. For example, he founded the Islamic Caliphate state institutions, prisons. Furthermore, it is known that Umar ibn al-Khattab did not cut off the hand of a thief in the period of starvation. The legality or illegality of these acts have no specific argument from the Quran, Sunnah, etc. Consequently, all these cases relied on Maslahah caliph’s al-Mursal (Kamali 250). The above evidence confirms that al-Mursal Maslahah had an argument in the Sharia. However, to use this Maslahah as an argument, a number of conditions must be met. Sheikhs, who recognize the legitimacy of Maslaha al-Mursal, use this as an argument to view Maslahah with great caution.

In order to guide the use of Maslahah as an argument, it is necessary that Maslahah al- Mursal complies with the Sharia main objectives, namely, preservation and protection of five things: religion, human life, property, mind, and belonging to one or another kind (Argunduz 35). Every Maslahah, which pursues these objectives of the Sharia, is not legitimate. Fatwa built on this form of Maslahah actually is based on passions of the soul or imagination. In this regard, Imam al-Ghazali expressed his opinion. However, by legitimate views of Maslahah, the paper means preservation of main objectives of the Sharia. Every Maslahah, which keeps these five things, is a legitimate argument for the Sharia.

In turn, every Maslahah, which is not aimed at preserving one of these five things, represents harm and exclusion from the kind of Maslahah (Vikor 24). Sheikhs made ??the following conditions for the legality of using Maslahah al-Mursal as an argument: Maslahah must be real and not imaginary in a particular case; it should be a real benefit for the Islamic Ummah. In some instances, the Sharia concludes that something is good for the Muslims (Maslahah) and should not be based on passion or imagination. If a Sharia decision regarding the severity of some things or actions that cause harm is to be imposed, the action should benefit or be protected from harm in terms of the vast majority of the Muslims and not just a specific person or group of people.

Only this case portrays a legal argument of Maslahah. On this account, there is a classic example: during hostilities unbelievers hiding in a fortress create a “human shield” made of the Muslims. It is known that if the Muslims do not break through this “human shield” of the army of unbelievers, they will suffer together with a large number of Muslims put as live barriers. In this case, the Sharia supports the Muslims who are at war with unbelievers to smite this “human shield”. In this case, a Muslim who may have to kill another Muslim should have the intention to kill the enemy, not his brother (Hallaq 146). In this regard, sin will not happen because major preservation of life takes precedence over the preservation of life of a group of the Muslims put as live barriers. This should be reasonably certain that the Muslim warriors will kill not only those who are at war with them, but also the “human shield”. In this case, the Muslims must continue to fight, even if it leads to the death of those who are in a “human shield”. This decision is based on Maslahah al-Mursal, and the benefit is to save the lives of the vast majority of the Muslims, as well as to protect the religion.

Maslahah must not contradict the clear arguments of the Sharia. As an example, children ought to be treated equally in terms of getting inheritance from their parents. From the standpoint of the reason, it can draw a conclusion that since a son and a daughter have received an equal share of the inheritance, they will benefit (Maslahah). However, this view is not a legitimate Maslahah as the Sharia indicates that son and daughter depend on different shares of the inheritance (Gleave and Kermeli 45). Maslahah should not contradict reason. In law, Maslahah must be a real need like Muslims should receive a specific benefit or protect themselves from a particular harm. It is assumed that if this view is rejected by Maslahah, the Muslims will face serious difficulties.

Maqasid

Maqasid is the relationship between the Islamic law and the current reality. Children often ask quite deep philosophical questions and it is unclear whether they understand their meaning. However, the beauty of children’s issues is that they are usually not connected with “general concepts” and older ideas like “the world works in such a way”. Lectures on Maqasid al-Shari’ah often begin with a story of a young girl asking her father: “Dad, why did you apply brakes before the traffic lights?” He responds: “Because of the red light and it means “stop”, “but why?” – asked the girl again. “And why do we penalize it?” – continued the daughter. “Well, because the red lights imply danger”, “but why?” – the girl did not cease asking. “That is how the world is,” is a so-called standard phrase, but the father decided to philosophize a bit with his beloved little daughter and instead said: “Since you cannot make people sick, do you get hurt?” “No,” – said the girl. “So, many people did not like to get hurt. In Reply, the Prophet (peace is upon him) said: “I wish other people what they wish for me.” “But why should we wish for others what you wish for yourself?” – insisted the daughter. After a moment’s thought, the father replied: “Because all people are equal, and if you ask why, I answer that God is just and His justice made us all equal with equal rights and that He created this world.”

Question “why” is tantamount to the question of what Maqasid is. “Levels why”, as they are called by philosophers, are used as “levels Maqasid” in the terminology of Islamic jurists (Ramadan 164). Considering these “levels why”, delving into the study of Maqasid, one moves from simple actions and understandable sign systems, such as the need to stop at a red traffic signal, to the laws and regulations, such as rules of the road, as well as to the laws and regulations on the utility level and mutual benefit (e.g. concern for the safety of others in exchange for one’s own safety), and, finally, to the level of mutual benefit and advantage in terms of the level of general principles and fundamentals of the faith, such as justice, compassion, and attributes of God. Maqasid al-Shari’ah is the sphere of Islamic knowledge, responding to all kinds of “why” of any level, for example:

• Why is charity (payment of zakat to the poor) one of the “pillars” of Islam?
• Why are the Muslims required to maintain good relations with neighbors?
• Why do the Muslims desire for health and peace (“assalyamu alaikum” in Arabic means “Peace be with you”)?
• Why must the Muslims pray so many times a day?
• Why is the month of Ramadan a significant pillar of the Islam faith?
• Why do the Muslims constantly mention Allah?
• Why is the use of any amount of alcohol considered as a major sin in the Islam?
• Why is smoking, for instance, of cannabis, prohibited by the Islam in the same way as alcohol?
•  Why does the Islamic law prescribe the death penalty for rape or genocide?

Maqasid al-Shari’a explains “the wisdom hidden in the Rules: for example, charity, good attitude to the neighbors, welcoming people in the world in order to strengthen social cohesion”. Another example of the wisdom hidden in the rules is, “the pursuit of the realization of God”, which is one of the rationales to regularly pray, fast, and make requests to God (Ramadan 167). Maqasid also portrays good intentions aimed at achieving or prohibiting restrictive laws. Consequently, Maqasid “save human souls and minds” as evident from the fact that the Islam imposes a strict ban on alcohol and intoxicants, and Maqasid “ought to protect and honor people” as evident in the Quran from “death penalty” as a (possible) punishment for rape or genocide (interpretation of verses 2:178 and 5:33 by some Islamic law schools).

Similarities and Differences of Maqasid and Maslahah

Both the Maqasid and the Maslahah portray similar characteristics. First, they base their concerns on legislation. The two principles argue that there should be the general advantage for the entire population and people should also be protected from any impending harm. Secondly, the principles are universal in the sense that they serve interests of the entire humankind. Third, Maslahah and Maqasid are inclusive because they include all the acts of people, regardless of whether they are related to Ibadat or Muamalat. Finally, the two principles are definitive as they have never been derived from a singular context, but from numerous contexts containing varied aspects of evidence.

The main objective of Maqasid al-Shari’ah is to enhance people’s livelihoods through safeguarding their intellectual capacity and property. On the contrary, Maslahah is only involved with availing benefits and repelling harms that may occur among the population. It is an expression relating to obtaining benefits or repelling any forms of harms that may cause injuries to people. It is greatly aimed at preserving the aims of the Sharia. In Maslahah, the underlying principle is the realization of the benefit, while the significant objective of Maqasid is to preserve social order on the community level and promote healthy progress.

Applications of Maslahah and Maqasid in Modern Law

Both Maslahah and Maqasid are widely employed in the Islamic legal context. Maqasid al-Shari’ah has objectives of promoting, as well as protecting interests of the public. Broadly, this is conducted through protecting religion, property, and descendants. Maqasid is notable due to divine ideas and moral principles upon which the Islamic legal system is based: justice, human dignity, freedom of will, generosity, chastity, help to one’s neighbor, and public interaction (Warmer 35). Thus, they represent a link between the Islamic jurisprudence and today’s concepts of human rights and community development, the “cultural” of its members and may also respond to questions of different types:

•  What methodology is best suited for reading and understanding the Scripture of Muslims in the light of today’s reality?
•  What are the Islamic notions of “freedom” and “justice”?
•  What is the relationship between modern concepts of human rights and the Islamic law?
•  What contribution can the Islamic law make to the society, morality, and culture?

Maqasid is also applied as a reference point for the general principles of the Islamic law. Consequently, Maqasid is considered as a fair picture of the whole system, including the Muslims with no knowledge of the Islamic law. Maslahah is involved in promoting rightful deeds and repelling harm. Muslim jurists argue that promoting the utility in the Sharia does not depend on human reasoning and pleasure. Maslahah maintains that goals prescribed for the Shariah by the lawgiver should not be determined using values that portray human reasons. The modern law rules against any injuries imposed on individuals pursuant to the pleasure they bring to the offender, which agrees with Maslahah. The law is so diverse that it cuts across different cultures in its application. Most elements of the law have found applications in other cultures. In this regard, the Muslim law has been applied to offer ruling on numerous cases in the Islam community. Since the law is against causing damages or injuries to the fellow population, the two principles are applied in modern law to rule in cases that bring injuries to people of the world.