Legal Reasoning with Maslahah – Part 2

Leibniz's diagrammatic reasoning.
3. Unrestricted Maslahah (al-Mursal):
 This is a proper and harmonious attribute which is neither accredited (muctabaran) nor discredited (mulgha) and based upon this definition is not espoused by anyone. Rather, it is rejected unanimously. Any scholar who has discussed the Maslahah Mursalah based upon this meaning has rejected it. Those who permit the use of Maslahah Mursalah did not intend that it not be acceptable unrestrictedly. They only intended to state that no ruling could indicate to it as a category in itself although a ruling does indicate to its type. Therefore, maslahah mursalah according to those who espouse it is a species of the maslaha muctabarah, which does not have any specific ruling indicating to it as a category in itself.
            Fakhr al-Din al-Razi (who is a proponent of maslahah mursalah) states in his book al-Mahsul: “The suitability that is neither compatible nor has an indication from a specific source (asl) is rejected by consensus. One example is the exclusion of the killer from acquiring any inheritance which has an impediment in contrast to his intent if we were to think that there was no text for it”.[i]
Hence, the action between two contradictories (al-mucamalah bi-naqid al-maqsud) is a proper and suitable attribute according to the intellect and on the assumption that the text “the killer does not inherit” is absent, the meaning of this suitability is rejected by consensus. This confirms that the proponents of maslahah mursalah do not intend an absolute non-restriction of a source or ruling that has an indication. al-Razi also says: “a suitability that is compatible (mula’im) having no recognised source for it means that its type is considered in its type but has no source indicating to the acceptability of its category in its category and this is al-masalih al-mursalah.”[ii]
 [al-Razi’s] definition here is that al-maslahah al-mursalah is that which no accredited source attests to its category although it is suitable. He explains his words in that its type is considered within its type and brings an example stating: “the example of the effect of the type within the type is the cause of the rulings with a ruling that has no specific source indicating it such as the case with cAli (Allah be pleased with him) who fixed drinking alcohol in the place of slander established due to the outward indication of the thing (mazinnat al-shay’) being its place as an analogy with dwelling in seclusion with a woman taking the place of having sexual intercourse with her in private”.[iii]Therefore, maslahah mursalah according to those who hold it is one type of maslahah muctabarahsince the maslahah muctabarah sometimes has a known ruling attesting to it such as the attribute of intoxication that has a specific ruling as an evidence for it, which is the prohibition of intoxicants. Other times, the maslahah muctabarah may not have a specific ruling that attests to it but only a ruling or rulings that indicate its type as mentioned in the above example.
 Since al-Razi read the ruling of establishing seclusion as taking the place of sexual intercourse, a general meaning where the outward indication of the thing becomes the place of the thing, there is the process of generalisation as well as a pairing of some attribute without evidence for the generalisation. The requirement for the generalisation is the cause for calling the suitability unrestricted.
 This why the statement of al-Razi and others have come saying that maslahah mursalah is suitable and compatible without a specific source to establish or attest to it. The word ‘compatible’ (mula’im) is technical and denotes those rulings that indicate a specific attribute. This is like the attribute of hardship regarding travelling indicated by more than one ruling such as: the ruling of combining the prayers; the shortening of the prayer; the ruling of the iftar, etc. So, if an attribute is not considered discredited, it is considered accredited or compatible which is different to the attribute that only has one ruling indicating it which is called the accredited but anomalous maslaha.[iv]
This is why it is said that maslahah mursalah is said also to be compatible with the ‘Aims of the Sharicah’ (al-maqasid al-sharicah)[v] and the Maqasid al-Sharicah are those suitable and recognised attributes (al-awsaf al-munasabah al-muctabarah) that are evidenced by numerous ahkam that exceed any limit. An example is the ‘preservation of the intellect’ (hifz al-caql) which has no specific hukm to establish it but there is a hukm attesting to the attribute of intoxication (al-iskar) in addition to there being ahkam attesting to the act of thinking and reflecting in that those who think and reflect are praised and those who do not possess deep knowledge and lack real knowledge are censured, the exemption of any legal responsibility from the child and the mentally challenged (al-majnun) as well as other examples that are found that collectively indicate towards preserving the intellect. As a result of this, it is said that preservation of the intellect is one of the aims of the Sharicah even though there is neither a specific hukm nor a nass to establish it. The same is said regarding the other aims of the Sharicah.[vi] Thus, there is no such saying in the Sharicah such as: ‘The maslahah is an evidence for a hukm sharci so therefore maslahah mursalah does not mean it is an evidence for establishing either the prohibition or permissibility of actions by the fact of it including a harm or a benefit.
 We want to here now pause at some of the opinions that have been transmitted by scholars and writers which are opinions and analyses sometimes far from being accurate and so are no really transmitted reports.
The opinion of maslahah mursalah has been famously attributed to Imam Malik (Allah be pleased with him) as well as to other leading figures of the Hanafi School and the Shafici School or just to the Shafici School. Yet others have claimed that the [opinion of maslahah mursalah] is found in all four of the Madhhabs.
Dr. Muhammad Hasan Hitu says: “The evidence of reasoning with [maslahahmursal has taken a heavy blow. There have been conflicting reports about it as well as divided opinions…”[vii]
Dr. Mustafa al-Bugha has said: “The preferred opinion is that it may not be used as evidence because there is no evidence to accredit it. No one else except Imam Malik has adopted this view (Allah have mercy upon him)…”[viii]
 Dr. [Ramadan] al-Buti holds the opinion that: “Maslahah mursalah is accepted by all of the Companions, Tabicun and the four Imams…”[ix] Al-Qarafi holds to the opinion that it is accepted in all four madhhabs.[x]
 Shaykh Taqi al-Din al-Nabhani said: “Masalih mursalah is not taken as a sharci proof (hujjah sharciyyah) due to the lack of evidence indicating to it…”[xi] And he also said: “… hence it is not correct that it be taken as one of the Sharicah evidences…”[xii]
 The Qadi Abu Bakr al-Baqillani rejected [maslahah mursalah] and entirely rejected the identification of the suitability saying that it implies that the intellect can delineate what is good and what is repugnant in addition to implying the adoption of the legislation of the intellectuals as well as the wise (al-cuqala’ wa ’l-hukama’).[xiii]
 Ibn al-Hajib too rejected it saying: “masalih mursalah is masalih that has no basis from the Sharicah to recognise and establish it even though masalih is still practiced and the people accept it…” He also said: “for us there is no evidence [for it] so it must be rejected just like al-istihsan…”[xiv]
 The Hanafis have strongly rejected [maslahah mursalah] so attributing them with the opinion is impossible. The opinion of their scholars is one: �€