Public Interest

Maslahah al-Mursalah

‫المرسلة مصلحة‬

Assoc. Prof Dr. Muhammad Yusuf Saleem

Case Study Room
5th October 2018

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 Contents • Definition, Justification, Conditions
• Application of Maslahah
• Maslahah, Qiyas and Istihsan

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International Centre for Education in Islamic Finance (INCEIF) (Company No.718736-K)
 Definition, Justification, Conditions

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International Centre for Education in Islamic Finance (INCEIF) (Company No.718736-K)
 Definition, Justification, Conditions

• Maslahah al-Mursalah (‫لمرسلة مصلحة‬GG‫)ا‬

• Maslaha literally means benefit and Mursalah means set lose from the text
• Maslahah al-Mursalah literally, means undefined or unrestricted public interest
• An issue of public interest on which there exist no text on its permissibility or otherwise
• Technically, Maslahah al-Mursalah refers to a consideration which is proper and harmonious
with the objectives of Shari’ah and which secures a benefit or prevents a harm
• According to Imam Malik Maslahah is one of the sources of Shariah and can provide a basis
for a ruling
• A method to make rules which are
– Harmonious with Shariah
– Secures public interest or benefit to the people
• To serves a public Maslahah
• Provided no textual evidence is found on its permissibility or prohibition

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 Definition, Justification, Conditions

• The benefits (Masalih/‫لح‬GG‫ )مصا‬and harms (Mafasid) are numerous

– They can neither be enumerated nor predicted
– They change from time to time and from a place to a place
• The ways and means to achieve these benefits are also numerous
• These measures may also differ from time to time
• Preventing a Mafsadah is also a Maslahah

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 Definition, Justification, Conditions

• To Imam al-Ghazali, Maslahah refers to any measure that secures benefit or

prevents a harm, but which are simultaneously harmonious with the objectives of
Shariah
– The protection of the five fundamental values
– Any measure which secures these values falls within the scope of Maslahah
– Any measure which violates them is evil/harm (Mafsadah)
• Maslahah al-Mursalah and Siyasah Shar’iyyah
• According to Ibn Qayyim "‫رعية‬GG‫ياسة ش‬GG‫ "س‬comprises all measures that bring people
closer to beneficence (‫صالح‬G‫ )ا‬and move them away from corruption (‫ساد‬GGG‫ )ف‬even if no
authority is found for them in Quran and the Sunnah of the Prophet (pbAbuh)

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 Definition, Justification, Conditions

Conditions
A maslahah should be
1. Rational and related to practical issues (‫لعملية‬GG‫ ا‬G‫حكام‬G‫ ) أ‬and not to matters of faith
(‫)عقائد‬
2. Harmonious with the spirit of Shariah and not in conflict with it
3. Essential or necessary ( related to the protection of five fundamental values) and
not concerning decorative or luxuries (Tahsiniyyat)
4. Genuine (‫ )حقيقية‬and not imaginative based on a mere suspicion of plausibility
– Relate to the protection of the five essential values
5. General- protect the public interest and not the interest of a particular person or
group of persons
6. Prevent or remove harm from the people

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2017 | A member of AACSB A member of
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 Application of Maslahah

© INCEIF 2017 | A member of AACSB

International Centre for Education in Islamic Finance (INCEIF) (Company No.718736-K)
 Application of Maslahah

• Cases/Examples of Masalih
• An example of Maslahah in Surah Yusuf
• Maslahah Mursalah could also be used to introduce policies that would stabilize the
prices of essential commodities and inflation
– The debate on price determination (Tas’ier)
• Examples of rulings made by the companions on the basis of Maslahah al-Mursalah
– Issuing currency
– Approving the building of prisons
– Umar (r.a.) held his officials accountable for the wealth they had accumulated
in abuse of public office and expropriated such wealth (Anti-corruption
agencies)
– Leaving the conquered land with the people of Iraq and imposing Kharaj on
them

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 Application of Maslahah

• Cases/Examples of Masalih
• An act which is initially mandub could be made wajib
– Official documentation of marriages, real properties, vehicles, etc.
• To prevent harm (‫ )مفسدة‬which is the prevalence of perjury in the proof of these claims
– Compulsory Ibra
• SAC Resolution
• Mubah could be made wajib
• Mubah could be restricted (taqayyid al-mubah)
– The requirement to take license/permission in order to do permissible acts
• Ihya al-mawat
• Taking deposits by licensed institutions
• Driving licenses
• Marrying a second wife
– Making permissible things/acts difficult
• Restrictions on buying second or third houses to avoid speculation
– The acts remains mubah but the persons performing them must fulfil some conditions
• Haram can never be made mubah on the basis of Maslahah

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 Application of Maslahah

• Cases/Examples of Masalih
• Provision of third party guarantee for capital and/or profit in a wadiáh/qardh deposit
transaction
– Depositors’ insurance Scheme
• Regulatory requirement that a Takaful operator should provide a qardh to the
Participant Fund in case of deficit
• Provision of Hibah to depositors
• Financier of Last Resort
• Fixing the prices of essential commodities in certain situations
• Imposing capital control
• Pegging of currencies

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 Application of Maslahah

• Cases/Examples of Masalih
• Maslahah is also more relevant to macro-economic and policy issues
• Monetary policy and exchange rate
– Control inflation and stabilize prices
– Encourage investments and job creation
– Import and export policies
• An evaluation of free trade agreements
• Taxing imported goods
• Fiscal policy
– Imposing taxes besides zakat
• Measures that prevent market distortion
– Anti Monopoly measures
• Measures that increase market efficiency
• Minimum wage policy
• Creation and protection of jobs and economy
• A regulatory framework for financial institutions
– Does short selling increase market efficiency?
• Pooling resources/funds for a greater common good/public interest
– Banks, cooperatives, Sukuk, crowd-funding

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2017 | A member of AACSB A member of
International Centre for Education in Islamic Finance (INCEIF) (Company No.718736-K)
 Maslahah, Qiyas and Istihsan

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International Centre for Education in Islamic Finance (INCEIF) (Company No.718736-K)
 Maslahah, Qiyas and Istihsan

• Maslahah is a measure that is taken by the government and is not like an

analogy (Qiyas) that is made by an individual jurist
– The maslahah based decision has to be approved by jurists
• In Maslaha the overriding principle is the consideration of public interest
while in analogy the overriding principle is the similarity of the effective
cause (‘illah)
• The effective cause would remain the same for all ages to come while the
notion of public interest, the ways for the acquisition of public interest, and
the methods for the prevention of public harm would change from time to
time and place to place
• Maslahah and Istihsan
• Istihsan is based on Qiyas while Maslahah stans on its own

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2017 | A member of AACSB A member of
International Centre for Education in Islamic Finance (INCEIF) (Company No.718736-K)
 Thank you

Muhammad Yusuf saleem

Assoc. Prof. Dr.

Tel: +603 7651 4161

Email: [email protected]

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