The Fundamentals Principles of the Science of Maqāšid: The Second Principle: Istišlāħ (Seeking Benefit)

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Ahmed Raissouni

This principle is a direct extension and a completion of the first, ta‘līl. We have established that the Sharī‘ah is based on rationales and that these, whether they be general or related to specific rulings, are centred around bringing benefit to God’s servants in both their religious and worldly affairs. From this comes the scholarly saying: ‘Maqāšid al-sharī‘ah is only concerned with bringing about benefit and averting harm’. Hence, where the concept of ta‘līl ends the concept of istišlāħ begins.

Based on this, we can say that ta‘līl and istišlāħ together form the most fundamental principle of the Sharī‘ah and its related sciences of maqāšid, ušūl al-fiqh, and fiqh.[1]

Scholars define istišlāħ as seeking goodness and benefit and taking the necessary steps to attain and maintain them. Included in this is averting harm, whether existing or anticipated, as this is itself a form of preserving benefit and of istišlāħ.

Istišlāħ is expressed through a number of branches, the most important of which are the following overarching three:

  • Divine istišlāħ in matters relating to creation and legislation;
  • Istišlāħ in relation to understanding and implementing the texts of the Sharī‘ah;
  • Istišlāħ in matters where no text exists.

These three branches will be explained in the coming three sections.

Section 1: Istišlāħ Instigated by God

What this means is that God, glory be to Him, facilitates for His servants both goodness and benefit and the means of achieving them, and He commands them to do what is beneficial for them. I.e. He seeks their benefit or He seeks for them what benefits them.

Clearly, this type of istišlāħ includes both God’s actions and rulings (i.e. creation and legislation). On this basis the Mu‘tazili principle of šalāħ and ašlaħ was developed, which holds that God is obliged to do what is best for his servants. Qāđī ‘Abd al-Jabbār al-Hamadhānī states:

“Section on the definition of kindness (luŧf) as meaning goodness, benefit, and seeking benefit… with this meaning we describe the Everlasting God, Most High, as seeking the benefit of those He obligates with different forms of kindness and other qualities.”[2]

Our disagreement with the Mu‘tazilah on this issue is not on the principle of istišlāħ in God’s actions and rulings, but only on the issue of it being obligatory.[3] As for divine istišlāħ in and of itself, this is something which is agreed upon and accepted. For this reason we find the Shafi‘ī jurist Abū Bakr al-Shāshī, al-Qaffāl al-Kabīr – who preceded Qāđī ‘Abd al-Jabbār – using this term and others derived from it with this exact meaning. Examples of this are his statements:

“The rulings of the Sharī‘ah are connected in their meanings to a God who is worshipped, a king, powerful, wise, who seeks the benefit of his servants for as long as they remain in the abode of trial, and for as long as it remains.”[4]

“God, Most High, has taught his servants that He only made them worship Him in order to benefit them by the rulings of the Sharī‘ah.”

“The Lawgiver seeks the benefit [of creation] and is wise.”[5]

We also find this meaning widely used by Imam al-Ħaramayn al-Juwaynī.[6]

Manifestations of Divine Istišlāħ

One self-evident truth, which everyone must believe, is that God’s seeking to benefit his creation shows itself in everything and cannot be enumerated: {If you tried to count God’s blessings, you could never take them all in: He is truly most forgiving and most merciful} [16:18]. Likewise, all benefit that humanity enjoys is from God, Most High: {Whatever good things you possess come from God, and when hardship afflicts you, it is to Him alone you cry out for help} [16:53]; {[People], do you not see how God has made what is in the heavens and on the earth useful to you, and has lavished His blessings on you both outwardly and inwardly?} [31:20]. Even the innovations and inventions, the organisations and civilisations produced by human endeavours are entirely the result of abilities and means granted to them by God, Most High.

Many verses of the Holy Qur’an point out how great God’s favour is to His servants and how abundant His kindness to them, among them:

{We have honoured the children of Adam and carried them by land and sea; We have provided good sustenance for them and favoured them specially above many of those We have created.} [17:70].

{Have you not considered how God has made everything on the earth of service to you? Those ships sail the sea at His command? That He keeps the heavens from falling down on the earth without His permission? God is most compassionate and most merciful to mankind.} [22:65].

{It is He who made the night a garment for you, and sleep a rest, and made the day like a resurrection. It is He who sends the winds as heralds of good news before His Mercy. We send down pure water from the sky, so that we can revive a dead land with it, and We give it as a drink to many animals and people We have created.} [25:47-49].

{Let man consider the food he eats! We pour down abundant water and cause the soil to split open. We make grain grow, and vines, fresh vegetation, olive trees, date palms, luscious gardens, fruits, and fodder: all for you and your livestock to enjoy.} [80:24-32].

Also, right at the beginning of the Qur’an, among its very first words, we read: “Praise belongs to God, Lordof all Worlds.” The word Rabb (Lord) embodies all the meanings of nurturing, caring for, showing kindness, providing for, and seeking benefit. God, Most High, is the Lord of all worlds with all of these meanings.

On this point, I thought it would be useful to quote some passages written by Fakhr al-Dīn al-Rāzī in his tafsīr about the significance of “Rabb al-‘Ālamīn (Lord of all the Worlds)” and the manifestations of this lordship. He (r) states:

“Know that God’s nurturing differs from that shown by others, and this can be seen in a number of ways:

  1. As we have mentioned, God, Most High, nurtures his servants not for His own benefit but for their benefit, whereas others nurture for their own benefit and not for the benefit of others.
  2. When others nurture, their assets and their wealth decrease in relation to the degree of nurturing they show. God, Most High, however, is above suffering any decrease or harm, as He states: {there is not a thing whose storehouses are not with us. We send it down only according to a well-defined measure.} [15:21].
  3. Anyone else who gives charity becomes angry and withholds when a poor person implores them, but God is the opposite, as the Prophet (s) said: ‘God loves those who implore Him in prayer.’
  4. Anyone else who gives charity does not give unless they are asked. As for God, Most High, He gives even before being asked. Do you not see that he nurtured you when you were a foetus in your mother’s womb, and when you were ignorant and without intellect, unable to ask Him? He protected you and showered favours upon you even though you did not ask Him, and you had neither intellect nor guidance.
  5. For anyone else who gives charity, their charity stops due to poverty, absence, and death, but God’s charity never stops.
  6. For anyone else who gives charity, their charity is reserved for one group of people to the exclusion of all others and cannot be given to all. As for God, Most High, His nurturing and charity reaches all, as He states: {My mercy encompasses all things.} [7:156]. So it is clear that He, Most High, is Lord of all the Worlds, who gives to all of creation, and for this reason He said about Himself: {Praise belongs to God, Lordof all the Worlds.}”[7]

He then says:

“The means of God’s nurturing His servants are infinite, for example:

  1. When one drop of sperm falls from the loins of the father into the womb of the mother, see how it first becomes a clot, then a morsel of flesh, and then different parts develop from it, such as the bones, the cartilage, the ligaments, the tendons, the veins, and the arteries. These then join with each other. Then in each of these there arises a specific type of power; the power of sight arises in the eye, hearing in the ear, and speech in the tongue. So glory be to Him who made people hear by means of bone, and see by means of tissue, and speak by means of flesh. Know, that the subject of human anatomy is well-known. All of this demonstrates how God, Most High, nurtures His servant.
  2. When a single seed falls into the ground and the moistness of the earth reaches it, it swells and splits, not from its edges, but only from the top and the bottom. This is despite the fact that it swells from all sides. From the top split comes the upper part of the tree, and from the bottom split the part that tunnels into the earth: the roots of the tree. As for the upper part, having ascended, it develops a trunk, from which separate many branches. On these branches appear first flowers and then fruits, which develop different parts, some more dense, some more delicate, these being the peel, then the core, then the oil. As for the part of the tree that is buried, it consists of the roots, reaching to their extremities, which are as fine as congealed liquid. Yet despite their incredible delicateness, they bury down into the hard, coarse earth. God has also instilled in them a force of attraction, which attracts to them the tiny elements from the soil. And the wisdom behind all of this organisation is to fulfil the individual’s needs for food, oil, fruit, drink, and medicine. As God, Most High, says: {We pour down abundant water and cause the soil to split open. We make grain grow, and vines, fresh vegetation, olive trees, date palms, luscious gardens, fruits, and fodder: all for you and your livestock to enjoy.} [80:25-32].
  3. God also caused the stars and celestial bodies to be means for His servants to attain their interests. He created the night to be a source of rest and tranquillity, and He created the day to be a source of livelihood and motion: {It is He who made the sun a shining radiance and the moon a light, determining phases for it so that you might know the number of years and how to calculate time. God did not create all these without a true purpose.} [10:5]. {It is He who made the stars, so that they can guide you when land and sea are dark.} [6:97]. {Did We not make the earth smooth, and make the mountains to keep it stable? Did We not create you in pairs, give you sleep for rest, the night as a cover, and the day for your livelihood? Did We not build seven strong [heavens] above you, and make a blazing lamp?} [78:6-13]. Know, that if you ponder the amazing characteristics of the minerals, plants, and animals, and the traces of God’s wisdom in the creation of human beings, your intellect will conclude that God’s means of nurturing are many, and the evidence of His mercy is patently obvious. It is then that you will grasp one drop from the ocean of secrets that is contained in God’s saying: {Praise belongs to God, Lordof all Worlds.}”[8]

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In the same way that istišlāħ is present in the creation of things, it also exists in God’s injunctions and laws. The human being is the one creature to benefit from all the different forms of istišlāħ: those relating to their creation, their intellect, and the legislation they are given. Al-Rāghib al-Isfahānī states:

“God, Glory be to Him, has guided everything that he has created to that which benefits it, as He indicated when He, Most High, said: {He gave everything its form, then gave it guidance.} [20:50]. However, the guidance He gave to inanimate objects is only in terms of their subjugation…and the guidance He gave to animals, for the actions they undertake, is in terms of their subjugation and also inspiration…and the guidance He gave to the angels is in terms of their subjugation and inspiration, and also the power of comprehension and the necessary branches of knowledge that He gave them. As for human beings, the guidance He gave them encompasses all of these and in addition the ability to think…”[9]

Despite all this care and guidance and all these blessings, some people see this life as being nothing but hardship, high prices, tribulation, and suffering. These people, when in their best state, seek God’s mercy solely in the next life.

Others are aware of, and appreciate the blessings and the good things God has bestowed on His servants in this world, but they think He has imposed on them a tax in exchange for these. This tax is the burdensome religious duties, which are like afflictions alongside the blessings. Otherwise, it is as if they have to perform the acts of worship and obedience to God as a price for the blessings and good He gives.

Yet others have a better outlook than this, that God, Most High, supplied us with blessings, good things, and faculties in this world for us to use and thereby secure worldly happiness, and then imposed on us the religious obligations for us to follow and bear, thereby gaining happiness in the next life.

The reality, however, is that God, Most High, sent the religion down to us to honour and ennoble us, so that we worship Him and do not disbelieve in Him, so that we thank Him and are not disobedient or heedless. Likewise, He sent His law down to us, so that we can find happiness both in this world and the next, or rather, so that we can find happiness in this world before we find it in the next. His kindness, blessings, and seeking our benefit through the religion and through the obligations He has imposed are no less of a source of benefit and joy than the good things and the worldly blessings we find in ourselves and around us. The Sharī‘ah protects for us, in this world, our dignity, honour, intellect, morals, lives, wealth, mental and physical health, and the rest of our internal and external interests, those we are aware of and those we are not. After this comes the recompense given in the next life. God, Most High, states: {To whoever, male or female, does good deeds and has faith, We shall give a good life and reward them according to the best of their actions.} [16:97].

As for the effort, sacrifice, and patience required to fulfil some of the religious obligations, firstly, this is comparable to the effort, sacrifice, and patience required to obtain, maintain, and use the good things of this worldly life. In fact, it is much less demanding than what everyone confronts in their daily life, whether they be Muslim or non-Muslim, religious or not, wealthy or poor. Secondly, this is a form of test; indeed this worldly life is entirely a test, both the good and the bad. In reality, these are steps for the purpose of gaining happiness, seeking benefit, and rising higher in status: {for those of you who choose to go ahead and those who lag behind.} [74:37]

We have mentioned, in the chapter on Ta‘līl, some of God’s wisdom and kindness present in His Sharī‘ah and legal rulings, and examples of the same are spread throughout all of the chapters of this book.

Section 2: Istišlāħ in Understanding and Applying the Texts

By this title I mean: keeping in mind the concept of ‘benefit’ when trying to understand and apply the legal texts. This is what I have previously termed ‘Tafsīr Mašlaħī’.[10] It is based on the principle that the Sharī‘ah and all of its laws are only there to bring about benefit and avert harm from God’s servants in their religious and worldly matters. The Sharī‘ah does not overlook any benefit nor do cause any harm, except in the minds of those who are short-sighted. ‘Izz al-Dīn ibn ‘Abd al-Salām states:

“The Sharī‘ah is entirely of benefit. It either wards off harm or brings about benefit. So if you hear God saying: {O you who believe}, ponder the advice He gives after this call, and you will only find some good that He is urging you to do, some evil He is restraining you from, or a combination of the two.”[11]

God’s seeking benefit is constant and without doubt. It continues uninterrupted and never fails, neither in His creation nor His legislation. This is what God intends and loves for His servants. Given all the above, we must bear it in mind when seeking to understand the legal texts and determine and implement their requirements in specific circumstances. In this way the texts can be in harmony with, and achieve their aims, and not vice versa.

This istišlāħ in explaining the legal texts is neither belying them, nor imposing one’s own views on them, nor annulling them. Rather, it is merely understanding them well and thinking positively about them, as well as employing and pursuing what we know of their objectives. From a methodological perspective, it is a form of combining between general principles and specific rulings, and allowing one to impact the other.

So, for example, when dealing with legal texts that allow for a number of possible interpretations and applications, they must be understood and implemented according to whichever possibility best brings about benefit and avoids harm, because this is, without doubt, their reality.

Likewise, when we find a legal text whose apparent meaning and corollary leads to a superior, established benefit being missed, or leads to a definite harm or clear injustice, this is a problem which should not be disregarded or accepted. Rather, we should stop and search for a solution and ponder the issue carefully. If we find an alternate meaning for the text which avoids this, we should accept and adopt it, given that it is more in keeping with the law and its objectives. If we need to specify or limit the meaning of the text, we can then do so in accordance with the established rules for this (takhšīš al-‘āmm and taqyīd al-muŧlaq).

The result of this, in the words of Ibn al-Qayyim, is:

“Every issue that deviates from justice towards injustice, from mercy towards its opposite, from benefit towards harm, and from wisdom towards futility, is not from the Sharī‘ah, even if it is deemed to be so through interpretation.”[12]

Prior to him, Ibn Qudāmah al-Maqdisī stated:

“The Sharī‘ah does not prohibit things that bring benefit and contain no harm, rather it legitimises them.”[13]

Al-Shihāb al-Qarāfī, likewise, states:

“That which is not at all harmful is not prohibited, and close investigation of the Sharī‘ah proves this.”[14]

Throughout the ages, the majority of jurists have engaged with the Islamic legal texts in a manner that achieves harmony and agreement with the concept of bringing about permitted benefits and averting prohibited harms. After the Prophet (s) himself, the pioneer and leader of this methodology is, without doubt, ‘Umar ibn al-Khaŧŧāb, and his judgements are famous in this regard.

One example concerns the harsh warnings connected with the tax known as maks[15] and its like, such as the ħadīth: “The one who collects the maks will not enter Paradise.” Similarly, in the ħadīth of the woman who was stoned for committing adultery, the Prophet (s) said about her: “By the One in whose hand is my soul, she has repented so sincerely that even the one who collects the maks would be forgiven if he repented in this way.”

When understanding and applying these ħadīths, some jurists consider the system of customs duties used today to be the same as the forbidden maks. They therefore consider customs officers to be the same as those that collect the maks, mentioned in the Prophetic ħadīths. Some extend things even further and consider all taxes to be like the forbidden maks.

Then there are those consider the forbidden taxes only to be ones taken unjustly and by force and which go to people of power and influence for them to spend improperly. As for border taxes known today as customs duties, imposed by the legitimate authority on goods and wealth, if these are taken according to a just system, given to the treasury, and used for the public benefit, and if there is no injustice, favouritism, or stealing involved, then these cannot possibly constitute what the Sharī‘ah has prohibited, whilst threatening those who collect it. The same can be said for taxes generally.

There is no doubt that this second view is the correct interpretation, which conforms with the objectives of the Sharī‘ah and the public benefit. Of course, if customs officers or any of their superiors take from people for themselves or inflate the taxes unjustly and wrongfully, they are definitely included amongst those who collect the maks that have been threatened. The same is true for policemen or other tax officers who do likewise.

This is the understanding that takes into account istišlāħ and maqāšid when considering the legal texts and their rulings.

Another example relates to the ruling on a group of people who jointly murder someone. Since the time of the Companions jurists have discussed this issue, aware that the Qur’an specifies {a life for a life} [5:45], i.e. the appropriate punishment is for one person to be killed in response to the killing of a single person. As a result, some scholars considered that the principle of qišāš (retribution) should not be applied in such cases due to the inability to respond in kind, and a whole group should not be killed on account of a single person. Rather, they should be chastised in some other way.

Ibn al-‘Arabī states:

“Fifth Issue: Aħmad ibn Ħanbal said: ‘A group should not be killed on account of one person because God, Most High, stated: {a life for a life} [5:45].’ We would say, however, that this is a general statement that should be specified according to the wisdom behind it. God, glory be to Him, only ordered the murderer’s execution [as a deterrent,] to prevent people being killed. If enemies knew that [if they killed] as a group, qišāš would not be applied, they would kill their enemy as a group. Hence, our judgement is that qišāš must be applied against them to prevent enemies [from acting in this way] and to stop this disease.”[16]

Here he allowed consideration of benefit and the intent of the Lawgiver to explain the verse. So while its wording is considered to be specific to cases of individual murder, when a single individual kills another and is then executed by way of qišāš, its intent also covers cases when a group of people murder an individual. They would all then be executed in order to achieve the general benefit of preserving life.

Other texts that scholars deal with on the basis of istišlāħ are those prohibiting, and threatening those that partake in backbiting and slander. Despite the explicit prohibition, the great scholar Ibn Daqīq al-‘Īd states:

“If avoiding slander results in a harm being done to others, or doing it brings about a benefit, the lack of which would cause harm, it is not prohibited. Likewise, if backbiting is done for advice or to prevent some harm, it is not prohibited. If one person hears from another something that will cause harm to someone, which if it were reported to them they would take precautions against, it is compulsory to mention it to them.”[17]

Al-Mulā al-Harawī al-Qārī likewise states:

“This [prohibition] is in the event that there is no benefit. However, if it is necessary, such as if someone is told that a person wants to eradicate him, his family, or his wealth, then there is no prohibition. In fact, it may be obligatory.”[18]

In this way we see that an understanding of the texts based on istišlāħ can transform an action from being prohibited, as the literal and general meaning would require, to being permitted or even compulsory, if necessitated by legitimate benefit.

A further example is found in the Qur’anic verses and ħadīths that encourage forgiveness and pardoning others. It is the nature of these noble texts that they cause the aggressive oppressor to feel ashamed, repent, and change their aggressive behaviour. There are people, however, for whom forgiveness and pardoning only increases their tyranny. Regarding these, al-Qarāfī states:

“Some oppressors increase their tyranny if they perceive forgiveness, and they are only deterred if people openly curse them. So let your forgiveness of them be between you and God, Most High, and do not show it to them. Rather, show them that which will correct them and benefit them.”[19]

This argument about understanding and acting upon the Qur’an and Ħadīth is more worthy of being stated regarding qiyās (analogical reasoning). An assured benefit limits qiyās and is even given precedence over it, if the two are in opposition. For this reason, scholars of the Ħanafī and Mālikī schools of law adopted the principle of istiħsān istišlāħī (applying juristic discretion in favour of what brings about benefit), making it one of their legal methods when performing ijtihād. They state: “Istiħsān involves leaving qiyās and adopting that which is more suitable for people.”[20]

Section 3: Istišlāħ when there is no Text

What is meant by istišlāħ here is the meaning used by legal theorists, which is: resorting to mašlaħah (benefit) and using it as a legitimate proof for laws when there is no specific text or defined ruling. This use of the term became common after al-Ghazālī employed it in his work al-Mustašfā, although his teacher Imam al-Ħaramayn also used it with this meaning.

It has also become widely held that Imam al-Ghazālī rejected the legitimacy of this type of istišlāħ, firstly considering it an imaginary proof[21], before ultimately declaring that:

Istišlāħ is not a fifth source of law in and of itself.[22] In fact, whoever gives rulings based on mašlaħah has himself legislated.”[23]

The reality, however, is that al-Ghazāli only rejects the legitimacy of that mašlaħah which has no basis in the law and which is not in harmony with his legislative approach. He states:

“Every mašlaħah not linked to the preservation of an objective understood from the Qur’an, the Ḥadīth, or ijmā‘ (consensus), being instead some peculiar mašlaħah that is not in accord with the methods of the Sharī‘ah, is false and disregarded. And anyone who performs it has acted as a legislator, just as anyone who performs istiħsān has legislated.”

As for a mašlaħah mursalah (a benefit for which no ruling has been given) which is in harmony with the law and its objectives, he settles the question of its legitimacy by stating:

“Every mašlaħah linked to the preservation of a legal objective, known from the Qur’an, the Ḥadīth, or ijmā‘, is not extraneous to these sources, although it is not called qiyās but mašlaħah mursalah. Qiyās is a specific source, and the fact that these concepts are intended is not known simply by one piece of evidence but by a countless number from the Qur’an, the Ḥadīth, circumstantial evidence, and the distinction brought about by their particular indicators. Therefore it is called mašlaħah mursalah. So if we interpret mašlaħah to mean preserving the intent of the law, there is no justification for not accepting it; rather, we must definitively state that it is a proof.”

He also states:

“Every concept in conformity with the ruling, seen continuously in the rules of the Sharī‘ah, and which is not opposed by another established source that has precedence over it – whether the Qur’an, Ḥadīth, or ijmā‘ – is to be followed, even if no specific source affirms it.”

In any case, istišlāħ with the meaning of acting according to mašlaħah mursalah has become widely known and understood, having passed the stage of theoretical contention and having become an undisputed basis of law. Hence there is no need for me to establish its acceptability or list the evidence for it. Rather, I will simply offer a number of practical examples of this kind of jurisprudence.[24]

  • I will start with the example given by Abū Ħāmid al-Ghazālī based on which his rejection of istišlāħ became famous,[25] to see how deeply the concept of istišlāħ is embedded in this scholar’s thinking. The example relates to someone who comes into possession of money not belonging to him yet they are unable to find out who its owner is. What should they do with it? After listing a number of opinions about the issue, al-Ghazālī, may God have mercy on him, states:

“Given that there is no hope of finding the owner, this money can either be lost or go to a good cause. And there is no doubt that spending it in a good manner is better than throwing it in the sea. If we throw it in the sea, both we and the owner are losers and no benefit comes from it. But if we give it to a poor person who then supplicates for the owner, the owner receives the blessing of that supplication and the need of the poor person is fulfilled. That the owner should unwittingly be rewarded for charitable giving should not be denied, since we find in a sound ħadīth that the one who sows seeds is unwittingly rewarded for whatever of its fruits or crops are used by people or birds.

As for the view that we can only give in charity that which is good, this is when we are seeking reward for ourselves. In this case, however, we are not seeking reward, but a way out from a wrong that has occurred. We are caught between losing the money or giving charity, and we prefer that the money go to charity than be lost.

The statement: ‘we should not wish for others what we do not wish for ourselves’ is true, but the money is forbidden for us because we do not need it, whereas it is permissible for a poor person due to evidence from the Sharī‘ah. If mašlaħah requires that something be made permissible, it must be allowed. And if it is allowed, then we have sanctioned for the poor person something permissible. We would add that, if the person who finds it is poor, he can use the money for himself and his family. With regard to using it for his wife and children, this is obvious, since they do not stop being poor simply because they are members of his family or his dependents; in fact, they are more worthy of his charity. As for the poor man himself, he has the right to take what he needs from the money since he is also poor; it is permissible for him to give it to a poor person, and the same is true if he himself is the poor person.”[26]

  • Scholars have differed about the appropriate punishment for the one who spies on the Muslims for their enemies. Some say he should be killed, whether that person is a Muslim, a dhimmī (non-Muslim citizen), or someone covered by a peace treaty. In explaining this view, Ibn al-‘Arabī states: “This is the correct view due to the harm caused to the Muslims and due to that person’s striving to spread corruption on the earth.”[27]

    However, as long as the defining factor on this issue is consideration of benefit and the harm ensuing from spying, it may be more appropriate that the punishment varies according to the situation and in proportion to the severity of the spying and the harm caused in each case.

It is clear that istišlāħ for issues where there is no text is forever becoming more broadly applied and important as a result of the growth of events and circumstances for which no legislation exists. In addition benefits and harms have emerged that were formerly unknown and that are extremely serious in the lives of individuals, states, and societies. In these cases, istišlāħ through consideration of the objectives of the Sharī‘ah remains the reference point for deriving judgements in according with the magnitude and importance of these issues.

As the ability to think, measure, and evaluate based on mašlaħah weakened or vanished for many Muslim jurists, over time this became a major disaster for Islam and the Muslims. They ignored what brought great benefit and fell silent about what caused immense harm.

Hence, according to some, societal obligations (furūđ kifāyah) are almost entirely limited to offering the funeral prayer and saving a drowning person. As for universalising education and developing it in all fields and at all levels, or spreading Islam and Islamic culture in every land and in all languages, or defending people’s rights and preventing wrongdoing, or preserving people’s freedom and dignity – first and foremost of the scholars themselves –, or achieving competence or pre-eminence in different industries, or protecting and growing the public wealth, or preserving independence and dominance in all fields, or basing governance and politics on legitimacy and consultation…the voices of all but a few scholars fall low or silent.

It is then that you find them accepting the political despotism and financial corruption of those who rule, with some even acting in the same manner themselves.

As for offering legal opinions on social interactions and emerging events, rarely do we find them judging on the basis of benefit and harm, these being alluded to only to support an argument or to giving a nice effect. Verbal inferences, weak narrations, unauthenticated reports, and contrived analogies, on the other hand, are constantly used.

The great scholar Muħammad al-Ŧāhir ibn ‘Āshūr offers a word of advice and warning on this subject. Having clarified at length the different types of benefits (mašāliħ) and their various categories, he states:

“This is all there is to be said about legally recognised mašāliħ, and it is extremely useful to go into this much detail, so that those pursuing this science can learn that, when different methodologies are in conflict, observing mašāliħ is the most flexible method that the jurist can adopt for guiding the affairs of the community in times of uncertainty. Furthermore, if the jurist does not follow this clear methodology, they have hindered Islam from being a universal, lasting religion and they cannot be sure that they are not following a more dangerous path, unless God wishes to guide them.”[28]

One of the impacts of this disappearing attention to mašlaħah was that Muslim rulers avoided the solutions offered by Islamic jurisprudence to the problems of the Muslims and the needs of their nations, as it was no longer comprehensive nor adequate. Instead they began to rule according to their own individual opinions and autocratic inclinations, before subsequently yielding to the systems, laws, politics, and solutions dictated to them by the more advanced, invading nations.

The judge and jurist Muħammad al-Murīr states:

“Opposing this movement (i.e. towards modernisation) stood certain inflexible jurists, armed solely with the sacred texts and rejecting any intermingling of these texts with rational thought. The result was that they blocked this path and opened on the Sharī‘ah a door to great evil, providing arrogant rulers and despotic kings with an opportunity to legislate oppressive laws that have nothing to do with the justice of Islam. If those jurists had properly understood the spirit of the Sharī‘ah and explained it to the kings and rulers in a way that their minds could comprehend, they would have yielded to it willingly and their hearts would have embraced piety. Instead they clung to the wording and ignored the message, and the system became defective and the structure weak.[29]

In a similar vein, Ibn al-Qayyim states:

“This is an issue on which many err and go astray; a place of hardship; a difficult battleground. Some are remiss, annul the stipulated punishments, neglect people’s rights, and encourage immoral people to spread corruption. They restrict the Sharī‘ah so that it does not establish the rights of God’s servants and is not self-sufficient. They close off legitimate ways of knowing and implementing the truth, despite it being known for certain, both by them and by others, that it is the truth, which conforms to reality. This they do due to their belief that it contradicts the principles of the Sharī‘ah. By the Eternal God, it does not contradict with what the Prophet (s) brought, even if it contradicts with what they, through their own reasoning, understand of it. What leads them to this is a deficiency in their understanding of the Sharī‘ah, a deficiency in their understanding of reality and in their ability to relate one to the other. When those in authority see this, and see that people’s affairs can only be set right through the adoption of something additional to what this group’s understanding of the Sharī‘ah offers, they innovate by their policies great harm and corruption, things becomes dire and beyond comprehension, and those scholars who know the realities of the Sharī‘ah are unable to rescue people from such perils.

Others, opposed to this group, go too far, making permissible that which contradicts the laws of God and His Messenger. Both these groups are shown to be wrong by their lack of knowledge of the message that God sent with His Messenger and revealed in His book.

God, Most High, sent His messengers and revealed His books so that people could establish justice; the same justice with which the heavens and the earth were established. Therefore, whenever justice reveals itself and its characteristics are seen, in whichever way this happens, then that is the law of God and His religion. God is more knowing, wise, and just than to specify the means of achieving justice and its characteristics and signs, only then to deny that which demonstrates justice and shows its characteristics and signs more clearly. God would not exclude it from the means of achieving justice and would not judge against it whenever the characteristics of justice exist and their requirements are met. Indeed, God, Most High, has shown to us, by the different means of achieving justice He has legislated, that His intent is that justice be established between His servants and that His servants uphold justice. Therefore, any means that can bring about justice, then that is part of the religion and not contrary to it.”[30]


[1] We will show below how our third principle, the ‘principle of paying regard to the consequences’ is simply an aspect of istišlāħ.

[2] ‘Abd al-Jabbār al-Hamadhānī, Al-Mughnī fī Abwāb al-Tawħīd wa-l-‘Adl, vol. 13, p. 20.

[3] The belief in istišlāħ being obligatory for God is attributed to the Mu‘tazilah and is something for which Ahl al-Sunnah in general criticised them. However, I am not concerned here with this issue as it does not affect the topic of our study.

[4] Abū Bakr al-Shāshī,  Maħāsin al-Sharī‘ah, op. cit. p. 18.

[5] Ibid, p. 34.

[6] See examples of this in my book Min A‘lām al-Fikr al-Maqāšidī. Rabat: Manshūrāt al-Zaman, 1999, p. 21.

[7] Fakhr al-Dīn al-Rāzī, Mafātīħ al-Ghayb or al-Tafsīr al-Kabīr. 3rd ed. Beirut: Dār Iħyā’ al-Turāth al-‘Arabī,1420 AH, vol. 1, p. 199.

[8] Ibid, vol. 1, p. 200.

[9] Al-Rāghib al-Isfahānī, Tafšīl al-Nash’atayn wa Taħšīl al-Sa‘ādatayn, published under the supervision of Sheikh Tāhir al-Jazā’irī, (Beirut, 1319), p. 53.

[10] See: Nażariyyat al-Maqāšid ‘ind al-Imām al-Shāŧibī, op. cit. p. 291 ff. For more information, look at a useful chapter written by Dr Mušŧafā Qurŧāħ under the title of ‘al-Nażar al-Mašlaħī fī Dalālat al-Nušūš’ in his book al-Nażar al-Mašlaħī ‘ind al-Ušūliyyīn, Rawāfid Series No. 47, (Kuwait: Ministry of Awqaf and Islamic Affairs, 1432/2011).

[11] Ibn ‘Abd al-Salām, Qawā’id al-Aħkām, op. cit. vol. 1, p. 12.

[12] Ibn al-Qayyim, A‘lām al-Muwaqqi‘īn, op. cit. vol. 3, p. 11.

[13] Ibn Qudāmah, al-Mughnī, (Cairo: Maktabat al-Qāhirah, 1388/1968) , vol. 4, pp. 240-1.

[14] Al-Qarāfī, al-Furūq, op. cit. vol. 4, p. 122.

[15] The maks is a tax taken from merchants and traders on the road, at border points, and in markets. It is also called al-‘ushūr (the tenths) because those collecting the maks would take one dirham out of every ten or its equivalent.

[16] Ibn al-‘Arabī, Aħkām al-Qur’ān, op. cit. vol. 2, p. 130.

[17] Ibn Daqīq al-‘Īd, Iħkām al-Aħkām Sharħ ‘Umdat al-Aħkām. Published by: Maŧba‘at al-Sunnah al-Muħammadiyyah, n.d., vol. 1, p. 106.

[18] Al-Mulā al-Harawī al-Qārī, Mirqāt al-Mafātīħ Sharħ Mishkāt al-Mašābīħ, 1st edition, (Beirut: Dār al-Fikr, 1422/2002), vol. 8, p. 3148.

[19] Al-Qarāfī, al-Furūq, op. cit. vol. 4, pp. 293-4.

[20] Al-Sarakhsī, al-Mabsūŧ, Chapter on Istiħsān, vol. 10, p. 145.

[21] Abū Ḥāmid al-Ghazālī, al-Mustašfā min ‘Ilm al-Ušūl, 1st edition, (Beirut: Mu’assasat al-Risālah, 1417/1997), vol. 1, p. 414.

[22] I.e. additional to the four agreed upon sources of law, these being: the Qur’an, the Hadīth, ijmā‘ (consensus), and qiyās.

[23] Al-Ghazālī, Al-Mustašfā, op. cit. vol. 1, p. 431.

[24] Al-Shāŧibī mentions ten issues in which the Companions and others judged according to mašlaħah mursalah. See: al-I‘tišām, ed. Hishām ibn Ismā‘il al-Šīnī (Saudi Arabic: Dār ibn al-Jawzī li-l-Nashr wa-l-Tawzī‘), 1st edition, 1429/2008, vol. 3, pp. 12-35.

[25] As I have just stated, this is not something that I myself accept, and this example with prove my contention.

[26] Abū Ħāmid al-Ghazālī, Iħyā’ ‘Ulūm al-Dīn. Beirut: Dār al-Ma‘rifah, n.d., vol. 2, pp. 131-2.

[27] Ibn al-‘Arabī, Aħkām al-Qur’ān, op. cit. vol. 4, p. 225.

[28] Ibn ‘Āshūr, Maqāšid, op. cit.  pp. 443-244.

[29] Muħammad al-Murīr al-Tiŧwānī, al-Abħāth al-Sāmiyyah fī al-Maħākim al-Islāmiyyah. Rabat: Mu’assasat Dār al-Ħadīth al-Ħasaniyyah, 1432/2011, vol. 1, p. 238.

[30] Ibn al-Qayyim al-Jawziyyah, al-Ŧuruq al-Ħukmiyyah. Maktabat Dār al-Bayān, p. 14.

Source note:
This article is part of the book; The Fundamental Rules of the Science on Sharīʿah Objectives, translated into English and will be published soon by the Foundation; 
Ahmed Raissouni, The objectives of the Law; the Fundamentals Principles of the Science of Maqāšid, Al-Furqān Islamic Heritage Foundation, London, UK.

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