The Principle of al-Masalih al-Mursala (Considerations of Public Interest)
The great majority of scholars of ethics incline to the view that the governing measure of all that is good and evil in any action is the benefit or harm which stems from it. If the action contains some advantage and does not cause harm to anyone, then it is good and performing it is an undoubted virtue. If it is an action which contains benefit for some people and harm for others, there is a conflict and clash between benefit and harm. In this case the good lies in abandoning a slight harm to obtain a greater benefit, or in abandoning a temporary benefit for a lasting benefit, or in abandoning an uncertain benefit to obtain a definite one.
Islamic fiqh in its entirety is based on the best interests of the community. That which contains benefit is desired and there is evidence for that, and that which is harmful is prohibited and there are numerous proofs for that as well. This is a confirmed principle which is agreed upon by the fuqaha' of the Muslims. None of them have ever alleged that the Islamic Shari'a brought anything which is not in people's best interests and none of them have ever said that there is anything harmful in any law or judgement within the Shari'a which has been legislated for the Muslims. Although there is no disagreement on its basis, there may be on its application.
Some think that the Shari'a contains the explication of everything which entails people's welfare, and so complete welfare can be found in its texts and that which cannot be taken by text can have a text applied to it by analogy, and the mujtahid cannot discover welfare when there is no testimony to it in the Shari'a. Ash-Shafi'i was the standard-bearer of that opinion. That is why he launched an all-scale attack on whoever considered that there was a benefit which had no testimony from the Lawgiver through 'istihsan'. The basis of that opinion is not to neglect welfare. Rather its basis is that Allah did not leave man in vain and appoint a benefit in existence to which the Lawgiver did not testify. Contained within this precept is that Allah Almighty would not leave a man to his own devices. That is what Allah denied in His ayats when He says, "Does man reckon he will be left to go on unimpeded?" (75:36)
In that ash-Shafi'i was close to Hanafi fiqh, but the Hanafis extend the area of application of texts more than ash-Shafi'i and accept some matters in which would analogy impair people's welfare and employ the istihsan which Abu Hanifa used
frequently. Istihsan without a text or hidden analogy is making use of welfare.
As for the schools of Malik and Ibn Hanbal, they both consider welfare as an independent principle in fiqh and state that the texts of the Lawgiver in their judgements only bring what is benefit, even if there is no text to define it, and if something is not known by text, its goal is known by the general texts of the Shari'a, like the words of the Prophet, "No harm and no causing injury," and the words of the Almighty "We have not placed on you any constraint in the deen."
According to these two schools, the faqih is able to judge that every action which contains benefit and has harm in it or has more utility than harm is desired without requiring a specific text on that type of benefit. Every matter which contains harm and no benefit or whose sin is greater than its utility is forbidden without requiring a specific text.
Some Hanbalis and Malikis go further and make the Qur'anic and Prophetic texts specific to welfare when the subject of these texts is human behaviour and not acts of worship. At-Tufi al-Hanbali was extreme in adopting that type of fiqh and said that when regard for benefit leads to opposition of a judgement which is agreed or a text of the Book and Sunna, then the regard of the benefit must be advanced.
There is no doubt that proceeding in this course which the fuqaha' of the Malikis and Hanbalis followed makes the Islamic Shari'a rich and productive in fulfilling the needs of people in every age and in every place. We prefer not go too far as at-Tufi did, or, to be more precise, we will not find a definite benefit which definitely opposes a legal text or a matter on which the fuqaha' of the Muslims agree. If we disagree with at-Tufi in anything, we disagree with him in supposing that there is a benefit which the human intellect is certain exists in a matter while the texts contain that which prevents its being observed or that the scholars would agree on its opposite.
There is no doubt that the Maliki school, and the Hanbali school as well, follow the direction that judgement by the commands of the deen, morality and laws is directed to the happiness of people and that utility or benefit is a governing criterion for all that is commanded or prohibited in the deen, as it is for the philosophers who state that it is the criterion of virtue and vice in morality, and justice and injustice in law.
When a philosopher in the last century wanted to declare that the criterion of morality is utility, he found that it was necessary to define it and to clarify its limits and to divest it of distorting ideas which people understand to be connected to it. He said: "But it is a preliminary condition of rational acceptance or rejection that the [utilitarian] formula should be correctly understood. I believe that the very imperfect notion ordinarily formed of its meaning, is the chief obstacle which impedes its reception; and that could it be cleared, even from only the grosser misconceptions, the questions would be greatly simplified, and a large proportion of its difficulties removed. Before, therefore, I attempt to enter into the philosophical grounds which can be given for assenting to the utilitarian standard, I shall off some illustrations of the doctrine itself; with the view of showing more clearly what it is, distinguishing it from what it is not, and disposing of such of the practical objections to it as either originate in, or are closely connected with, mistaken interpretations of its meaning." (Utilitarianism p. 255, John Stuart Mill)
Since poor understanding of the term utility is what provoked many objections and criticism, so ambiguity about what is meant by benefit in the case of some of the fuqaha' of the Muslims is what provoked their objections to considering it as a legal root on which to rely, let alone being the governing criterion, and that reliance on it in recognising the principle of all that exists of the events of the human race is something necessary so that the judgement may be in accordance with the aims and goals of Islam in social transactions.
We found those who object to deduction by benefit alone, whether it is unarticulated or in conflict with analogy, stating that it is making judgement in the deen by partiality. We find that al-Ghazali claiming that the istihsan of the Malikis is invalid: "We know absolutely that the consensus of the community is that the scholar cannot judge by his whim and penchant without examining the evidence of proofs, and istihsan without looking into the evidence of the Shari'a is judgement by pure whim." (Al-Mustasfa, pt. 1, p. 275)
He says about al-masalih al-mursala: "If the Shari'a does not testify, it is like istihsan." (p. 264)
Al-Ghazali thought that only using benefit which has no testimony from the Lawgiver in a text or several indications was judging by whim. Al-Juwayni also objected to using benefits without searching for testimony and said that it is allowing the people to judge according to their whims and they avoid what they are averse to and that judgements would then differ with different individuals.
From this you see that the attack on considering benefit in Islamic fiqh as a governing criterion for command and prohibition is based on the claim that it adopts the judgement of whim without a precise rule, and so the judgements of the Shari'a would be subject to and differ by different individuals, environments and conditions.
It is strange that since the school of utility developed in Greek philosophy after Socrates, it has been subjected to this very attack, rather in even harsher terms. Many of those with great intelligence among the philosophers say: "To suppose that life has (as they express it) no higher end than pleasure - no better and nobler object of desire and pursuit - they designate as utterly mean and grovelling; as a doctrine worthy only of swine, that the judgment that life has no finer goal other than utility or pleasure, to whom the followers of Epicurus were, at a very early period, contemptuously likened... When thus attacked, the Epicurians have always answered, that it is not they, but their accusers, who represent human nature in a degrading light; since the accusation supposes human beings to be capable of no pleasures except those of which swine are capable. ... Human beings have faculties more elevated than the animal appetites, and when once made conscious of them, do not regard anything as happiness which does not include their gratification." (Mill, op cit., pp. 257-258)
This without a doubt is directed at the area which ash-Shafi'i, al-Ghazali and the al-Juwayni attacked, considering benefit as an independent legal evidence without textual support. When there are no texts on the subject, then they attack benefit since it is judgment by inclination or mere compatibility and aversion.
But the school of utility attacked in European countries after they embraced Christianity was from an aspect by which the school of benefit is not attacked in Islam: it is that adopting benefit or utility may be contrary to the principle of asceticism to which Christian religiosity calls. That is why European writers who supported the principle of utility tried to harmonise asceticism and utility. These sorts of answers are not found in Islamic fiqh among those who support benefit as a basis for commands and prohibitions and their opponents because asceticism for its own sake is not part of Islam. Asceticism in Islam is a positive action for the benefit of others, even if it is by foregoing personal happiness, because mortification of the flesh to purify the soul is not part of Islam. Rather it is strengthening the body so that the soul can undertake the duty.
Now we will proceed to clarify what is meant by benefit. Muslim fuqaha' state that Muslim responsibilities fall into two categories. The first is acts of worship, which is the system of the connection between man and his Lord, and they affirm that the basis in this category is devotion. So the texts about it are not causal in their whole, or to be more precise, a person cannot find in acts of worship the motives and ends for which they exist and on which their likes could be based. Someone does not impose on himself an act of worship which the Lawgiver did not impose whatever the logic. In addition to this prohibition, it is obligatory for the Muslims to believe that these responsibilities in worship are for the benefit of man, even if he cannot legislate the like of them by wisdom, benefit, or motives. He must stop at what the texts state and what they indicate and what it connected to them without adding to them.
As for the second category of responsibilities, which are connected to the social transactions of the human race with one another. This is what the usage of the fuqaha' terms 'customs'. The basis in that category is turning to the reasons and motives for which the judgements were legislated by the agreement of the fuqaha'. Responsibility in these matters is for the sake of forming a virtuous Islamic polity based on justice and virtue.
Ash-Shatibi affirmed that principle in al-Muwafaqat. It is any attention given to customs is for one of three reasons.
"1. If we investigate, we find that the Lawgiver intended the welfare of people. In customary judgements you may see something forbidden in one case in which there is no benefit, and then permitted when there is benefit, as dirham for dirham on credit is forbidden in the sale but permitted in the loan. Selling fresh dates for dry is forbidden when it is simple risk and usury without benefit, but permitted when there is predominant benefit in it. The Almighty says, "There is life for you in retaliation, people of intelligence," (2:179) and He says, "Do not swallow up one another's property by false means." (2:188) In hadith, "The judge does not give judgement while he is angry." The Prophet, may Allah bless him and grant him peace, said, "No harm and no causing injury." He also said, "The killer does not inherit," and he forbade the sale with uncertainty. He also said, "Every intoxicant is unlawful." The Almighty says, "Shaytan wants to stir up enmity and hatred between you by means of wine and gambling, and to debar you from the remembrance of Allah and from the prayer" (5:91) and other countless judgements and texts. All of which indicate, indeed explicitly state that the consideration of welfare is a basis for permission and prohibition, and that permission is a mobile one.
2. The Lawgiver was flexible in clarifying causes and wisdoms in the rules of social relations between people and customary matters between them. Most of the causes are logically connected to welfare. We understand from that that the Lawgiver meant for people to follow the reasons in them, not to merely stop with the texts – which is not the case with acts of worship. Worship is only established by a text.
3. Addressing the causal factors, which are benefits, exists at times when there are no Messengers, i.e. so that their welfare can exist and their livelihoods will be in in order. The Shari'a comes to perfect good character and customs. This is why the Shari'a confirms a group of judgements which occurred in the Jahiliyya, like blood money, the group oath, the commenda and the like of that which were praised among the the people of the Jahiliyya and whatever good customs and noble character which intellects accept: and they are many." (al-Muwaqafat, pt. 2., p. 213)
So the manifest principle governing the legality of customs and traditions in the eyes of the Shari'a is whether or not they are beneficial in real terms. But what is the criterion used in the Shari'a to ascertain whether or not a particular matter contains benefit? To discover that we have to ascertain exactly what it is that makes a particular action permitted or forbidden.
What, then, is the nature of the benefit which makes an action acceptable in the eyes the Islamic Shari'a? It is that which coincides with its goals, and the goal of the Islamic Shari'a is to preserve the five things whose preservation is agreed to be obligatory: life, sanity, property, progeny and honour. All religions agree on the obligation to preserve these things and have that point in common. All rational people concur that society is based on protecting and preserving these things.
Scholars of usul divide preservation of action into three grades and base restitution on the basis of their order: necessities, needs and recommendations.
1. Necessities are those things which are necessary for the establishment of the welfare of the deen and this world, and when they are lacking, the benefits of the deen are not in order resulting in disorder and loss of life. The preservation of these necessities is by establishing them, making their rules firm, and by averting disorder, actual or probable. This is why foods, drinks, clothes, behaviour and their organisation is permitted. They are those things which society must have if it is to function. This is why such crimes are fought with retaliation, blood money, ensuring the value of property, the cutting off of hands, flogging, and other things which are intended to avert actual and likely disorder. So the basis of necessities is to establish those five matters.
2. As for needs, they are connected to what is less than those five, but their absence entails constriction. Thus needs are prescribed for expansion and to remove the constriction which usually results in distress and hardship. When needs are not cared for, people experience distress and hardship. This is like permitting hunting and enjoying good things which a man can dispense with, albeit with constriction, but when they are allowed there is expansion.
3. As for recommendations, their omission does not lead to constriction, but they are part of good character and good customs. So then they consist of adopting what is proper and avoiding what is not proper of dishonourable things which superior intellects disdain, like manners in eating and drinking, and being free of prodigality and niggardliness, and so forth. We do not want to go into detail about that.
What is noticeable is that in most cases benefits are not free of evils accompanying them, and evils are not lacking some benefit connected to them. Benefits are connected to harms and harms are not lacking in some utility. Ash-Shatibi explained that established reality in by the fact that benefits are intermixed with responsibilities and hardships are connected to them, or before or after them: like eating, drinking, clothes, dwellings, riding, marriage, etc. These matters are only obtained by toil and fatigue. Similarly evils of this world are not pure evil in existence since there is no evil conceivable in normal custom but that it is often accompanied, preceded, or followed by kindness, gentleness, and obtaining pleasures. That is because this world was set up as a mixture of the two matters. Whoever seeks to purify one of them from the other will not be able to do so, and the experience of that is a truthful witness. That is because this abode is the abode of testing, as the Almighty says, "We test you with both good and evil as a trial," (21:35) and as He says, "He who created death and life to test which of you is best in action." (67:2)
This is what is self-evident in existence. Ibn al-Qayyim divided things into five categories according to logical hypothesis without looking at its realisation in existence.The first category is that which is pure benefit; the second is what is predominantly benefit; the third is what is pure harm; the fourth is what is mostly harm; and the fifth is that in which harm and utility are equal.
He mentioned this categorisation in respect of logical hypothesis. As for everyday reality, the theorists argue about the existence of three categories while they all agree on the existence of the other two: what is predominantly benefit and what is predominantly harm. As for the rest of the five, which are pure benefit, pure harm, and that in which they are equal, they are the subject of dispute.
Some scholars say that neither pure benefit nor pure harm exist. Ibn al-Qayyim reported that they say: "Benefit is bliss and pleasure and what leads to them, and evil is punishment and pain and what leads to them. Everything must be accompanied by endurance of a type of pain. Even if there is pleasure and happiness in it, some detriment occurs, but since this is overshadowed by benefit, it is not noticed and the benefit is not nullified because of it so that that which is predominantly abundant good should be abandoned for the sake of a small overshadowed evil. It is like that with the evil which is forbidden. A man does it because he desires and wants it, and this is an immediate benefit. When he is forbidden it and leaves it, he lacks its benefit and immediate pleasure and its harm is greater than its benefit and indeed, its benefit overcome by its harm as the Almighty says about wine and gambling, "Say, 'There is great wrong in both of them and also certain benefits for mankind. But the wrong in them is greater than the benefit.'" (2:219) So even though usury, injustice, and drinking wine are evil and harmful, they contain use and pleasure for the one who does them. This is why he prefers them and chooses them. Otherwise, if he had experienced their harm from every aspect, he would not do them at all. The most intelligent person is the one who leaves them the most because of their predominant harm in the end, even if there is pleasure and a little enjoyment in it in respect to its harm.
This is the argument which Ibn al-Qayyim presented for those who do not think that existence contains anything completely beneficial or anything completely evil. As for those who affirm that in existence, they said that it is confirmed that there are things in existence which are good without any evil in them and others which are evil without any good in them: the good Prophets and the pure angels are good without any evil in them, and Iblis the Accursed and his helpers are evil with no good in them. There are individuals who are are completely good and so there are actions which must be purely good, and some of which are purely evil. Allah described magic as harmful and not beneficial where He says, "They have learned what will harm them and will not benefit them." (2:102) So it is a judgement that it is pure evil and we cannot deny the judgement of Allah Almighty.
Ibn al-Qayyim separates the opponents when he says: "The conclusion is that if what is meant by pure benefit is that it is pure in itself and not mixed with any harm, then there is no doubt that it exists. If what is meant is that the benefit is not mixed with hardship or injury in its path and means to it, not in itself, it does not exist since benefits and good things, pleasures and perfections are all only obtained by a portion of hardship, and one does not reach them except through toil. Intelligent people of every nation agree that bliss is not obtained by bliss and that the one who prefers rest lacks rest, and that it is according to enduring terrors and bearing hardships that there is joy and pleasure. There is no joy for someone who has no sorrow. There is no pleasure for the one who has no patience, no bliss for someone with no misery, and no rest for the one with no fatigue. When someone is a little tired, he has long rest. When he endures the difficulty of steadfastness for a time, that leads him to eternal life. All that the people of eternal bliss are in is steadfastness for a time. Allah is the One who is asked for help. There is no strength except by Allah.
Whenever souls are nobler and aspiration is higher, then the fatigue of the body is greater and the share of rest is less." (op. cit.)
We find that in his presentation which Ibn al-Qayyim considers to be a conclusion of this dispute, he states certain things:
1. That some benefits are pure, but hardship may occur in endurance in obtaining them. So what is desired is pure benefit but the means to it has pain.
2. He stated that the greatest hardship is with pure benefit since its pure good is commensurate with the effort of acquisition, expending of effort and great endurance.
3. He ends with the fact that when souls are noble and aspiration is higher, then the effort of the body is greater and rest is less and the personal utility of the doer is spiritual and the physical use is later and not immediate.
The second question on which there is a dispute is the existence of something in which the benefit and harm, or its use and corruption, or its good or evil, are equal. Some people affirm its existence and some deny it. Ibn al-Qayyim - and we along with him - state that this category has no existence in this world even if logic stipulates a portion for it. When benefit and harm, and use and corruption, pleasure and pain, are opposite one another, one of them must dominate the other, and so the judgement goes to the predominant.
To sum up, the Lawgiver only gave permission for that which is benefit and he only forbade what is harmful. It is within the capacity of the human intellect to perceive the most outstanding benefit in things of this world and to recognise them and to obtain them by the command of the Lawgiver, even if there is no explicit text on them because general commands and analysis of judgements indicate that the Shari'a is directed in its universal and partial rulings to obtaining benefit and repelling harm.
As for what is connected to the relationship of a person with his Lord, it is not easy to recognise the outstanding benefits in it, even if the intellect can perceive some of its wisdoms in the whole. That is why he can discern the benefits of the world, even if there is no specific text, but he cannot legislate an act of worship without a text. Furthermore that is innovation in the deen and every innovation is misguidance and every misguidance is in the Fire, as the hadith clearly states.
Muslim fuqaha' criticise connect appetites to benefits or whim to uses. Is whim or appetite considered to be inseparable from the considered benefit legally or are benefits distinct from whim and appetites?
The Muslim fuqaha' argued about when benefits conflict, and the benefit of one people is harm to others, or the benefit is for one part of the community and harm for another part. Muslim fuqaha' discussed these two matters as did moralists in relation to utilitarianism.
They stated in relation to the first matter, the connection of desires to benefits, that it is not established that they are inseparable. Desires and pure appetites are not discerned in the benefits which are considered and settled in the Shari'a. What is considered in benefits is that which will establish this world as a bridge to the Next, i.e. what will make the life of this world one of virtue and mutual help, not of mutual severance and discord.
There are four pieces of evidence to establish that what is meant by benefits is not what is inseparable from desire or simple appetite.
The first of this is that Shari'a came to prevent people from simply following their passions because Allah Almighty says, "If the truth were to follow their whims and desires, the heavens and the earth and everyone in them would have been brought to ruin." (23:71) It has not come for the following of appetites, but it has come to strengthen resolve and the formation of perfect character; the benefits by which society is firmly established are strong foundations
Second is the agreement of intelligent people from earliest times that benefit is that by which life is supported and on which society is based, and that the preservation of it can be mixed with pains or pleasures. Moreover, that which one considers the goal which might be encircled by disliked things may not actually be where man's passion lies. That has been noticed by intelligent people in every nation past and present. This indicates that the passion does not enter into the calculation of benefit.
The third is that utilities and harms are usually relative and not real.They are relative since they are utilities or harms in one case rather than another, and in relation to one person rather than another or one time rather than another. For instance, eating and drinking are clearly beneficial for man when he needs to eat and when what is eaten is delicious and wholesome, not disliked or bitter, and does not produce harm immediately or later, and the aspect of obtaining it is not connected with harm, immediately or later, nor is harm connected to someone else because of it, immediately or later. These matters are rarely joined together, and thus many benefits are harmful for someone, or harmful in one time or state and not harmful in another state.
The fourth is that desires vary regarding the same thing since the fulfilment of the desire of one may harm someone else since he has a different desire. So the result of the difference in many cases is that the observance of the Shari'a will prevent benefits which take desire into account because their rules are not fixed except by observing the benefits free from desires.
This is the first matter and so we move to the second matter, which is what the Shari'a demands when there is a conflict of benefits and a conflict of evils so that as choosing some benefits entails ignoring the benefit of others, or averting some evils entails evil for others. Muslim fuqaha' say that what is preferred is the one which procures the most and most necessary benefits and that which averts the most harm and injury. The clearest statements about that can be found in al-Muwafaqat of ash-Shatibi, Miftah Dar as-Sa'ada by Ibn al-Qayyim, and the Risala of at-Tufi.
Ibn al-Qayyim says, "When you reflect on the laws of the Deen of Allah which He set up between His servants, you will find that they do not fail to procure pure or predominant benefits commensurate with possibility. If there is a conflict, then the most important of them is favoured, even if the least is lost. Similarly, when does not fail to stop specific or predominant evils according to possibility and there is a conflict, then the most harmful of them is stopped by enduring the least of them. It is on this basis that the Wisest of the judges set up the laws of His Deen which indicate Him and attest to the perfection of His knowledge and wisdom, and His kindness to His slaves and goodness to them. This sentence leaves no doubt for someone who has a taste of the Shari'a and has been nurtured by it and has drunk from the purity of its basin." (Miftah Dar as-Sa'ada, p. 350)
At-Tufi said: "If they are multiple so that there are two or more benefits in the place, and it is possible to obtain all of them, that is done. If it is not possible, then what is possible is obtained. If it is impossible to more than one benefit and the benefits vary in importance, then the most important is taken." (p. 768)
You see from this that Muslim fuqaha' state that the desired benefit or utility from the Lawgiver is that whose use is for the greatest possible number with the strongest possibility, and that the harm which is repelled is harm for the greatest number with the strongest possibility, and that things in that are relative and comparative.
Benefit and Texts
We have already explained how the Islamic Shari'a is based on benefits and that the most evident of benefits in dealings between people can be identified while the most evident utility in acts of worship cannot be completely grasped. We quoted scholars who studied this topic who noted that the the legality of ideas of dealings which the responsible person perceived can be discerned, but acts of worship are not like that. We clarified the rules which regulate the desired benefits and which are the intended causes in the legality of Islamic dealings.
We indicated that there scholars differ about considering benefit as an independent principle. Now we want to give some details on this subject. Benefits which do not have a specific text which testifies that its category is considered is termed al-masalih al-mursala, and whether or not it is is a legal principle is debated among the fuqaha'. Al-Qarafi claimed that all the fuqaha' use it and consider it evidence in partial decisions, even if most of them deny that it is a principle in universals. He says on that:
"The unarticulated benefit is explicitly denied by others, but in the case of secondary rulings we find that they use the generality of benefit as cause; and in differences and comprehensive manners, even if they do not accept that it is considered. They rely on mere appropriateness and this is the unarticulated benefit." (Tanqih, p. 200)
Whether or not that claim is sound, it is confirmed that the consideration of benefits for which there is no specific text to be considered is a view about which scholars disagree. The statements of scholars regarding it are fall into four categories:
1. The Shafi'ites and those who adopt their method. They do not use masalih mursala when there is no testimony from the Lawgiver because they only use texts and applying analogy based on them. If we follow al-Qarafi, we say that it is rare for them to use benefit without analogy.
2. The Hanafis and those like them who use istihsan with analogy. Istihsan is part of what they say and it is not lacking in reliance on general benefits, and in fact, we would say that they use benefits in their deduction more than the Shaf'Ôites, even if the actual amount is little in itself since they do not reckon these benefits to be one of their principles since they rarely rely purely on it.
3. Those who go to extreme in adopting benefits so that they put benefit before the text in people's dealings and believe that it makes it specific. Indeed, they believe that it make consensus specific, i.e. that when the scholars agree on something by a text and find it is opposed to benefit in some aspects, they advance consideration of the benefit, and also consider that a specification. At-Tufi took that position.
4. Those who are balanced. They have the soundest insight and consider unarticulated benefits in things in which there is no unequivocal text: they are most of the Malikis. We will speak about the opinions of these last two categories.
Those who say that benefit is an independent principle which is used when there is no text agree that when an actual or likely benefit exists, then it is desirable. The dispute is when there is both benefit and the text (unequivocal in its isnad and evidence) and there is a conflict between them. At-Tufi prescribed that the conflict be examined and he advanced benefit before that text. The Malikis, and those who follow their method among the Hanbalis other than at-Tufi, postulate that benefit is established when this text exists. It is not possible for there to be a confirmed or predominant benefit when an unequivocal text clashes with it. It is misguided thought, an impulse of passion, appetite, or preferring a non-essential state which is not abiding, or an immediate utility which will soon vanish or in fact, a utility whose existence is doubtful. It is unsustainable when there is definitive a text which has come from the wise Lawgiver and has been. When the judgment is established by a probable text - either in isnad or evidence – it is reported from Malik how what is probable is specified by analogy if its evidence is closely connected and it is based on an unequivocal basis. He also considers benefit to be of that type. If its probability is established by an unequivocal means, then we have two conflicting principles before us: one of them is probable in its isnad or evidence, and the other unequivocal in its motives and confirmation. In this case the unequivocal is advanced over the probable. If the text is a single tradition, this weakens it, because when it differs from a confirmed predominant benefit, it opposes the sum of firm legal testimonies to seeking benefits and repelling harms.
Malik employed benefit in transactions and considered it to be independent evidence which did not rely on anything else. When benefit existed, he took it, whether it had specific testimony from the Shari'a for consideration or not. This is what the fuqaha' call 'al-masalih al-mursala.' Malik used it. When it clashed with probable texts and there was a conflict between them, he preferred to adopt it and make the text specific or to weaken its isnad if it was general. If there was no contrary text, he took it. He followed that through in a profound manner in his understanding of the beneficial ideas. Then he paid attention to the intention of the Lawgiver, which he did not leave and he did not oppose any of its principles so that scholars might find many aspects of his procedure offensive, claiming that he had loosened the rope and opened the door of legislation. How unlikely! How far from that he was! He is the one who was pleased in his fiqh to follow so that some people imagined the he merely imitated those before him. He had insight into the deen of Allah. (al-I'tisam, pt. 2, p. 311)
In taking masalih mursala as an independent legal principle, Malik was a follower and not an innovator. He found the Companions of the Messenger of Allah, may Allah bless him and grant him peace, doing various things after his death which had not been done while he was alive.
They collected the Noble QurÕan into a bound book – something which had not been done during the lifetime of the Messenger – because of the inherent benefit in it, dictated by the fear that the QurÕan might be forgotten through the death of those who had memorised it. When 'Umar, may Allah be pleased with him, saw many of the memorisers of the QurÕan fall in the Ridda War, he feared that the QurÕan might be lost through their deaths and so he suggested to Abu Bakr that it should be collected together into a book. The Companions agreed to that and were pleased with it.
The Companions of the Messenger agreed after his death that the hadd for wine-drinking should be 80 lashes in view of the principle of masalih mursala, since they observed that one of the consequences of intoxication was the slander of chaste women
The Rightly-guided Khalifs agreed to make artisans responsible for any goods of other people they were working on, even though the basic position is that is the things in oneÕs possession are a trust (under Islamic law trustees are not responsible for unintentional damage to goods in their keeping). They did so because it was found that if they were not made liable for them they would make light of guarding other peopleÕs goods and property. So in this case public interest demanded that artisans should be made liable.
'Umar ibn al-Khattab, may Allah be pleased with him, used to confiscate half of the wealth of governors who combined their personal wealth with government assets and then used their position as governor to make a profit on it. The benefit involved in that ruling was that he thought it that would reform the governors and keep them from exploiting the office of governorship for their own ends.
It is also reported of 'Umar ibn al-Khattab that he poured away milk which had been diluted with water, as a punishment for cheating. That was for the general benefit in order that people might be protected from being cheated.
It is also transmitted that 'Umar ibn al-Khattab had a group of people executed for the murder of one person when they all participated in the murder, because public interest demanded that even though no text existed to support it. The benefit in this lies in the fact that it would otherwise become possible to shed inviolable blood with impunity, resulting in a loophole in the principle of retaliation. People would use assistance and partnership as a means to commit murder since it would be known that no retaliation would be demanded. If it is said that this is an innovative matter by which other parties than the killer are executed even when they were not all actually involved in the act of killing, the argument refuting this is that the killing group is a collective and so collective execution is the same as executing an individual, since killing is ascribed to the collective in the same way as it is ascribed to an individual. Therefore, individuals who join together with the aim of killing are considered as a single person. Public interest demands this since it involves the prevention of bloodshed and the protection of society.
Malik found all these things and a great fund of other legal judgements which had been left the fuqaha' of the Companions, may Allah be pleased with them. Since he followed their methods and adhered to their path it was impossible that he should stray from the aim and goal of the Lawgiver. His fatwas were given with the object of ensuring benefit in all matters, both public and private.
Part of his attention to benefit in general matters was allowing homage to the less excellent when there exists someone who is more entitled to the khalifate than him, because invalidating that would lead to disorder, not establishing the benefits of people in the world, and chaos for a short time in which injustices are are committed which are not committed over a period of years.
Part of it is when the treasury is empty or there the army has needs and there is not enough to cover it. The Imam can impose on the rich what he thinks will be adequate immediately so there is money in the treasury or there is enough. He should impose this tax at times of receiving revenue and the harvest so that that will not lead to alienating hearts. The aspect of benefit is that if the just leader does not do that, his might will be hollow and dwellings will become subject to sedition and subject to being occupied by attackers. It might be said that instead of imposing this tax, the leader can borrow for the treasury. Ash-Shatibi replied to that: "Borrowing occurs in times of crisis when the treasury is expecting revenue. If nothing is expected and the prospects of income are weak so that it is not adequate, then the judgement of the tax must be carried out."
Part of that if that if the haram is widespread in the land or in part of the land and it is difficult to move and the means of honest earnings are blocked and their is need for increase in order to stay alive, when they cannot alter the situation and it is impossible to move to a land where the Shari'a is in force and it is is easy to earn lawfully, then individuals can with reluctance accept some of these foul earnings out of dire necessity and need such that if they did not take it, they would be in constriction and greater hardship. So they are like the one who is compelled when he fears death if he does not eat from what is unlawful, like carrion and pork. They can take beyond bare necessity to satisfy need since if they confined themselves to bare necessity, earnings and actions would be worthless and people would remain suffering that until they perish. That would entail the ruin of the deen.
But they should not exceed need for wealth and comfort. That is considered taking pleasure in evil and not considered remedying a rare unusual state in the legal system of Islam: the predominance of the haram in one of the lands of the Muslims.
We see from this how Malik proceeded in his legal derivation on the basis of dealing with the affairs of the Community by that which entails its good and welfare, and so that its affairs are easy, and not trouble, constriction, distress or hardship.
Those who study the Maliki school and know the means of deduction in it will notice that Malik's deduction of the use of masalih mursalacontains indications of matters which are tantamount to limitations on its empowerment. They are:
1. Harmony between the benefit which is adopted and the aims of the Shari'a on the whole inasmuch as it does not negate any of its principles or any of its definitive evidence.
2. It is intelligible in itself. Logical relationships occur which are presented to people of intelligence who accept them.
3. Making use of it removes a inherent constriction in the deen. If the logical benefit were not taken in its place, people would be in distress. Allah Almighty says: "We did not place any constraint on you in the deen."
These limitations without a doubt prevent those who would give it free rein so that the affairs of people would proceed according to appetites and desires. Malik did not vary from a definitive text except for pressing necessity. If necessity arises, then it is permitted to omit some binding obligations in the state of choice. That is established by unequivocal texts.
Islamic fiqh takes benefits into consideration and that is noticed in all its judgments. However, the between its fuqaha' is in considering it as an independent source to be relied on in derivation without being derived from another source in the form of a text or action of the Prophet. All agree that benefit is taken into consideration in this case since it is one of the types of analogy, even if the resemblance which produces the analogy is not effected. Malik and Ibn Hanbal said that it is used. As for the Hanafis and ShafiÔis, the Hanafis use it in what they call istihsan because on the whole, it is only subject to the principle of custom, empowered benefit, or necessity. That without a doubt is subject to the idea of procuring benefit and repelling harm and removing distress and hardship. The one who consults the principles of the Hanafi school will find much in it which is based on benefits.
Such the position of benefit in Islamic fiqh, which is the first aim of its laws in the transactions between people. Attention is paid to it in its immediate and further aims. Fuqaha' agree that it is considered and they agree that it is used. Their disagreement is not in the affirmation of its principle, but in the amount of their reliance on intellect alone in perceiving it without the help of a text. Some people went to excess in trusting in the judgements of the intellect particular to benefits so that they made the judgement of the intellect that a certain matter contains benefit stand contrary to the unequivocal text and specify it, and have it specify unequivocal consensus when it is established. Others went to excess and stopped at the texts and only acknowledge benefits by means of them, and they suspect the intellects in their perception of them. There is no doubt that this hesitation in perceiving the benefits in worldly matters is not acceptable. The Messenger of Allah, may Allah bless him and grant him peace, said, "You know better the affairs of your world."
The Imam of the Abode of the Hijra followed the Straight Path and did not allow the judgements of the intellect to exceed their role in benefits and overstep their place. He did not let them clash with unequivocal texts and judgements reached by consensus. He did not confine the intellect and forbid it to perceive benefits except by means of texts. His method was direct and balanced in that without negligence or excess. So the school was productive and rich with ideas without exceeding proper bounds or going beyond moderation and balance. It contains treatments for people's ills and a flexibility which allows it to encompass the customs of people and their circumstances in different manners and environments, without innovation or going outside the Shari'a. He did not abandon imitation and following. Allah Almighty is the One who inspires to what is correct.