What are the literal and the technical meaning of maslahah mursalah?
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Literal meaning- Maslahah mursalah literally means public benefits or interests that are accepted legally by the Islamic law principles and financial terms under the Islamic jurisprudence. Once a benefit or interest qualifies as a maslahah mursalah, it remains unrestricted to the public interest as no policymaker or lawmaker can regulate the benefits. This Islamic principle aims at protecting humanity and issues of public interest.
Technical meaning- maslahah mursalah is also a technical Islamic terminology commonly used within Islamic laws. Maslahah mursalah technically means proper or appropriate considerations that deem harmonious for the purposes and objectives of the policymakers or lawgivers. Maslahah mursalah is an interest that Shariah encourages or nullifies, and normally aims at securing public benefits and protecting the public from harm.
When should the maslahah mursalah be upheld?
Maslahah mursalah remains unjustified in the Islamic law as it changes with circumstances and duration depending on the validation from the lawgivers, who normalize its principles. The law upholds the maslahah after a lawgiver has clearly upheld and accredited its legitimacy and authenticity; hence, receiving a new name Al-Maslahah al-Mubarak.
What are the categories of maslahah mursalah? Explain each category with an example.
According to the Muslim jurisprudence, maslahah mursalah falls under three major categories. The three broad categories of maslahah include Al-Maslahah al-Mutabarah, Maslahah Mursalah, and the Maslahah Mulgha. Al-Maslahah al-Mutabarah refers to legally accredited maslahah or benefits upheld by Shariah following the consent of the lawgivers. Maslahah Mursalah is an interest, neither legally accepted nor abolished by the Islamic laws (Shariah). Lastly, Maslahah Mulgha is a benefit or maslahah that the Shariah and lawgivers have nullified.
What are the conditions of maslahah mursalah?
Maslahah mursalah must have some conditions that the interest validation must fulfil based on explicit justification by lawgivers or accredited by the Shariah. Maslahah mursalah must be genuine in protecting the five basic Muslim values, defending the public interest, and must not violate the principles of the mass (Quran wordings). The Maslahah must be reasonable and satisfactory to the public.
Explain how maslahah mursalah can be applied in modern Islamic banking and provide examples.
Maslahah mursalah can be applicable in modern Islamic banking practices. Maslahah is very important to the public interest of the Islamic nations as it contains benefits that value humanity and human needs. Since its historical development, Islamic banking has been hinging upon the principles of promoting economic well being, justice, benevolence, freedom to all civilians, and equitable distribution of resources. In the modern financial regulations of Islamic banking, riba (interest) rarely falls under the Quran prohibitions. The riba principles normally violate several principles of the mass, and by integrating Maslahah mursalah, it will assist in improving the practices of riba.
What is the literal definition of Istihsan? And what is the role of Istihsan?
Istihsan means preferring something to be good. The concept of Istihsan practically refers to a particular ruling on a certain issue, done by the jurist without consulting the Sunnah stipulations, Ijima or even the Quran, but through individual juristic preference. In simplest terms, Istihsan refers to the juristic preference in ruling or approving particular case in an equitable manner. Quran, Sunnah, and the Ijima are the basis of Islamic jurisprudence and lawgivers seek clarification from these tools while making legal judgments. When they cannot provide any important reference, the Istihsan practice becomes essential. The Istihsan policy allows the Mujtahid (Muslim jurists or lawgivers) to practice legal mandate when the Quran and the Sunnah cannot provide any reasonable reference to a ruling on a particular case.
What are the Hanafi thoughts and considerations about Istihsan?
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The Hanafi has certain presumptions and thoughts about the existence and validity of the principle of Istihsan. Hanafi has a great adoration to the laws and policies established in the Quran and the Sunnah, and derive legal judgements from these tools. This makes the Hanafi disregard the Istihsan principle unless it has some elements falling under the nass principles. Hanafi has a great contempt against any unambiguous meaning of Istihsan derived out of the legal texts of Shariah (nasus), and only accepts definitive ruling with reference to the legal Shariah texts.
Jurists do not agree on a precise definition for Istihsan. List me any two jurists with an explanation.
Jurists do not agree unanimously with the precise meaning of the Istihsan as articulated in many of the sources of Islamic law. Dr. Hashim Kamali as a jurist disregards the literal meaning of Istihsan claiming that prior companions and their successors were not lawyers, and hence, their definitions were illogical. Al-Sarakhsi views Istihsan as ineffective way of making injunctions because it is insensible the laws.
List some quotes about Istihsan.
The Islamic law uses Istihsan as an exceptional assessment in extraordinary circumstances. Most Istihsan quotes appear when a jurist single out analogical conclusion to the rest of the options to promote the common good. In the quotes of Istihsan, Umar Bin Khattab provides reasons as to why he opposes the penalty of hand amputation, and thus contradicts the Sunnah and the Quran. Another example is the case of Dr. Hashim Kamali, who investigates a case based on an oral testimony.
What are Ra’y, Qiyas and Istihsan have in common?
Ra’y refer to personal opinions on an issue, Qiyas are analogical judgments concluded after comparing the quality of two things or opinions, while Istihsan are personal preferences on a certain issue. Qiyas, Ra’y, and Istihsan have some affiliations in Islamic laws, as they are important components in the cases that require Istihsan judgement. The three are not part of the Quran and the Sunnah judgements, but they form a great contribution to the analogical reasoning and conclusion in the Istihsan case.
What is the advantage of Qiyas and Istihsan?
The Qiyas and the Istihsan mostly work on mutual dependence, and often involve analogical reasoning in critical cases that the legal tools like the Sunnah, the Quran, and even the Ijima prove ineffective in making a case decision. Qiyas and Istihsan normally help in reinforcing equitable and just judgments through making exceptions to the common rule and making informed case decisions for the common good.
How can Qiyas be affected in Islamic banking?
Islamic banking practices can adopt the Qiyas and has become effective decision-making tools on financial matters. Since Qiyas is a secondary source, it supplements the Quran and the Sunnah, which are the primary sources of Islamic teachings. With either direct or indirect association to the common Islamic laws, they help in making critical decisions over complex matters that Sunnah and the Quran cannot manage to produce references. When issues regarding financial claims in the bank fail to reach a consensus using the stipulations of the Quran or the Sunnah simply because the presumptions have conflicting views, Qiyas can apply.
How would you solve an Islamic issue using a doctrine of istishab?
The doctrine of istishab in the technical view means assuming the presence or non-presence of facts regarding a particular case or issue that needs legal attention. The istishab supports the transfer of property ownership from one person to another or within the family members. In any case, with contradicting, unreasonable, illegitimate, or non-existent facts and no probable application of the tools of Shariah in decision-making, Istishab becomes applicable. In any case, regarding an Islamic issue, I would rather assume the continuation of the negative to the case than make irrational decisions.
What are the important legal maxims in istishab? Mention them and give examples.
Legal maxims understandable in the doctrine of istishab include the issues regarding certainty or certain belief on an issue, assumptions on generality of certain aspects, permissibility of things, and freedom from liability obligations. Certainty as a truism denotes that human beings cannot make judgments about a belief by disproving the certainty using a mere doubt. For example, when all humans regard someone to be upright and sane, this fact remains, until further proven insane.
The second maxim holds that issues regarding general will remain so, until when the generality becomes subject to certain limitations. For instance, a general ruling of Sunnah concerning kiblah remains unchanged until certain interpretations of the Quran emerges, and effected changes in this ruling. One remains free from any liability or obligations until certain facts prove otherwise. For instance, the Islamic law prohibits anyone to carry out a sixth salah in a single day. Another maxim is that a command is permissible and normally presents the unique state of things. For instance, the Hanbali of Ibaha assumes that future spouse has the freedom to agree upon their marriage contract, including agreements about monogamy.