The Concept Of Al-Maslaha Wa Al-Nass With Special Reference To Kitab Al-Buyu' In The Book Of Bulugh...

THE CONCEPT OF AL MA$LAHA WA AL NASS WITH SPECIAL REFERENCE TO KIMB ALBUYII' IN TIDE BOOK OF BULIIGHAL MA&4M

Ishak Suliaman

Submittedto the University of Wales in fulfilment of the for the requirements Degree of Doctor of Philosophy

University of Wales, Lampeter 2005

iABSTRACT

This study examines the concept of al-Maslalia wa al-Nass (Public Interest and Islamic legal text) with special reference to Kitdb al-Buyi (chapter on business transactions) in the book of Bulgh al Mardm. The analysis moves from the connection formed between al-Ma. lalta and al-Nass by Muslim jurists to the investigation of the practical principles of al-Maslaha as those principles apply to alBuy as encompassed in the ahddith of the Prophet s.a.w in Kitdb al-Buyuf. It is for , this reason that the book of Bulgh al-Marm has been chosen by the present researcher; Kitb al-Buyuf represents the most explicit source of aliddith on which to draw for the practical principles discussed.

To this end, six chaptershave been drawn up in three parts; that is, parts A, B and C.. Part A is entitled `The concept of al-Maslal:a wa al-Nass in Islamic Jurisprudence',and consistsof three chapters.The first deals with the definition and historical developmentof the concept of al-Maslaha wa al-Nass.The secondchapter extendsthis with the theoretical development of the concept of al-Ma. lalla wa alNass. This conceptual section closes with the third chapter, which focuses on the significance of Tdlil al Alikam for the concept of al-Mallalia wa al-Naas. Part B examinesthe authenticity of the Iladith, introducesthe book of Bulgh al-Marm and of two chapters,chapter four and chapter five. The fourth chapter discusses consists the main referencesourcesfor the book of the Uadith, while the fifth both introduces the book of Bulgh al Mardm and analysesin detail eachsuccessive section. The last part of this thesis is part C, which specifically examinesthe altdith. Part C forms the heart of the thesis, building a specific methodology within the juristic framework of the concept of al-Ma.Flalia wa al-Nall for the analysis of alBuy according to the practical principles drawn up from the 22 sub topics listed in Kitb al-Buyuf (chapter on businesstransactions)in the book of Bulgh al-Marm. The thesis concludes that if these principles of public interest are applied to all businesstransactions in accordancewith what is laid down in the a1idith of the Prophet s.a.w, then the public interest of humanity amongst Muslims will be preserved.It is for this reason, that the alidith of the Prophet s.a.w are given to humanity as a universal living source on which to draw for their. eternal well-being. Thus, it is hoped that using the juristic concept of al-Maclalia wa al-Nall as a new tool with which to analysethe altdith of the Prophet s.a.w opensthe door to further study in this field.

ii

Declaration/Statements

DECLARATION This work has not previously been acceptedin substancefor any degreeand is not being concurrentlysubmittedin candidaturefor any degree.

Signed .................................... ............... '... Date.......... .

Statement1

This thesisis the result of my own investigation,except where otherwisestated. by Other sourcesare acknowledged footnotes giving explicit references. A bibliography is appended.

5; " Signed4:: S :... g.:.. os.......... Date......

2 Statement

for I herebygive consent my thesis,if accepted be availablefor photocopying and to for inter-library loan, and for the summary to be made available to outsideorganisations.

Signed ......... T'.. Date.......

d "..'...

.........

iiiACKNOWLEDGEMENT

For the most and prime acknowledgement, expressall the praisesand thanksbe to I Allah the Almighty for His mercy and blessing in bestowing upon me of being a to seekand learn His valuableknowledgeof the Hadith of the Prophets.a.w student Islamic jurisprudence. Again, by His permission, this humble work has been and completedto be examinedand utilised for the sakeof Islamic knowledge.

My earnestappreciation belongs to my supervisor, Dr. Mawil Izzi Dien for his invaluable encouragement and commitment, untiring and smart supervision.I am indebtedto his effort in advising and assistingmy thesis presentablein the present form. His latest book of Islamic law is inspired me to completethis work during the third year of my Ph.D studies.I owe my special gratitudeto my English teachersfor

in their valuablesuggestions comments assisting correcting jargonsof my and andEnglish usage in this thesis, particularly to Carole Russell Williams, Pat Sinclair, Serena Gibbs, Greg Backer, Br. Anuar and Br. Amjad. I also owe my sincere to Dr. Helen Vella Bonavita, EFL Director of Studies,UWL, for the appreciation Carole Russell Williams for a period provision of academicwriting workshopswith of almost one year.

I am indebted to the Government of Malaysia, the Public ServicesDepartment of Malaysia, the Ministry of Education, Malaysia and the University of Malaya for awarding me the study leave for three years and assistingme with financial support during my studiesin the United Kingdom. Very special thanks and appreciationare due to numbers of scholars and colleagues,who gave their moral and academic

IV support prior to and during my studies especially, Professor Dr. Mahmood Zuhdi Abdul Majid, Professor Dr. Ab Aziz Mohd Zin, Professor Dr. Abdullah Alwi, Associate Professor Dr. Zulkifli Yusoff, Associate Professor Dr. Abdul RashidAhmad, Associate Professor Dr. Fauzi Deraman, Associate Professor Dr. Abd Karim

Ali, AssociateProfessorDr. Ali Mohammad,Br. Asmady, Br. Anuar, al-UstazAbdul Ghani Shamsuddin and membersof PUM.

Very sincerethanks are expressed Dr. FrancesKnight, Head Departmentof to TRS who endorsed my application of departmental research scholarship. The scholarshiphas been spent to cover my expenditure researchat SOAS, London and part of my trip of research to Egypt in the first year of my studies. The same commitment of appreciation goes to all the librarians who assist me in providing many related materials of my thesis, particularly those librarians from the University

of Wales, Lampeter,University of Wales, Aberystwyth,the British Library, theSchool of African and Oriental Studies (SOAS), the University of Birmingham, the University of Edinburgh, the University of Malaya, the International Islamic University, Malaysia and the National University of Malaysia.

I am indebtedmost of all to my beloved and dedicatedwife, Noorizah Ghazali

and my lovely kids; Ammar, Muadz, Luqman, Sarahand Imran, for their utmost patient,understanding continualsupportduringalmostthreeyearsof my studies. andWe have gained wonderful moment during our life of three years in a small and compact university town of Lampeter. The highest degreeof appreciation belongsto

my belovedandcaredmother,Ramlahbinti Ludin, my parents-in-law all family andmembersfor their continuous prayers and wishes for my success. For my late father,

V

Haji Sulaimanbin Ahmad, this thesisis dedicatedto him who alwaysbeing an icon of my life. To all my colleaguesin the University of Wales, Lampeter and membersof EINS at Llanybydder, I offer my sincere gratitude and deepestappreciationfor their highest spirit of Muslim brotherhood.

Again, to all of them; JazakumuLlahKhayr al Jaz'.

Finally, as the perfection and faultlessnessonly belong to Allah as the most becauselack of perfect, therefore I admit that this thesis is subject to weaknesses knowledge, outlook and experience.Thus, any comment and suggestionthat aims to improve this thesis is highly appreciated. However, to Allah s.w.t. I submit this humble work for my submissionto Him.

Ishak Suliaman Afallen, Bryn Road Lampeter,Wales, United Kingdom. October 2004

vi

TABLE OF CONTENTS Abstract Declaration/Statements AcknowledgementTable of Contents Notes on Transliteration

i ii iiivi xi

List of Abbreviations

xiii

INTRODUCTION Background Purpose,scopeand limitation of the thesis Research methodology Literature review Outline of chapters 1 3 4 5 8

PART A: THE CONCEPT OF Al MAFLAHA IN ISLAMIC JURISPRUDENCE Introduction to Part A

WA Al- NAS

11

CHAPTER 1: THE DEFINITION AND HISTORICAL DEVELOPMENT OF THE CONCEPT OF AL-MAFLAHA WA AL-NA. Y$ 1.0 Introduction 1.1 The definition of the conceptof al Maslalia wa al-Nall 1.1.1 Literal Definition 1.1.2 Technical Definition 1.2 The historical developmentof the conceptof al Ma. lalta wa al-Nag 1.2.1During the life of the Prophet s.a.w 1.2.2During the period of the Khulafil' al-Rshidin 1.2.3During the caliph Umar b. Abd. Aziz 1.2.4During the Abbasid dynasty 12 12 13 15 20 21 22 24 26

VII

1.2.4.1 The IHanafi School of law 1.2.4.2 The Mliki School of law 1.2.4.3 The Shf(i School of law 1.2.4.4 The Hanbali School of law 1.3 Summary

27 30 34 37 40

CHAPTER 2: THE THEORETICAL DEVELOPMENT OF THE CONCEPT OF AL-MASLAHA WA AL-NA$, F2.0 Introduction 41

2.1 The theory of priority of Maslaha over the legitimacy of Nasj 2.1.1 The hypothetical form 2.1.2 The connectionof MaslalaaMursala with the legitimacy of Naffs 2.1.3 alTfi's theory2.2 The theory of levels of Varriyya, Hajiyya, and Talisiniyya in

42 44 46 51

the conceptof al Maclalla wa al-Naas connectionwith 2.2.1 The Priority Levels of Darriyya; The Views of Muslim Jurists 2.3 The theory of Magd. id al-Syari a in connectionwith Nass 2.4 Summary

67 73 77 84

CHAPTER 3: THE SIGNIFICANCE OF TA`LIL AL-AHKf1M FOR THE CONCEPT OF AL-MAgLAHA WA AL-NA, F 3.0 Introduction 86 87 88 90

3.1Definition of Talil alAhkdm 3.2Theviewsof Muslimjurists On Talil alAlikm al-Syarìa3.3 The conceptof Tabbudiyyain conjunction with TaciT! Alikm al 3.4 The significance of Talil al-alzkdmin relation to the theory of al-Maslalia wa al-Nas$

9697 100

3.4.1The process TaC1T1 of al-alikmfrom theNaql of the Qur'n or theIladith3.5 Summary

Vill

PART B: THE AUTHENTICITY

OF THE HADITH AND INTRODUCTION 102

TO THE BOOK OF BULOGHAL-MARAM Introduction to Part BCHAPTER 4: THE MAIN REFERENCE

SOURCES FOR THE BOOKS

OF HADITH 4.0 Introduction 4.1 Sahib al-Bukhdri 4.2 Saliili al-Muslim 4.3 MusnadAhmad b. Ijanbal 4.4 SunanAb Dwd 4.5 Jm( Abi cIsaal-Tirmidhi 4.6 Sunanal-Nas'i 4.7 SunanIbn Mjah 4.8 Other ReferenceSources 4.8.1 Muwalld' al-Imam Malik 4.8.2 hilt al-Imam Ibn Khuzaima 4.8.3 Saliih Ibn Ilibbdn 4.8.4 Sunanal-Draqutni 4.8.5 Sunanal-Kubra al-Bayhgi 4.9 Summary 109 110 113 116 119 121 123 125 128 128 129 129 130 130 131

CHAPTER 5: TIIE INTRODUCTION TO THE BOOK OF BULUGHAL-MARiM 5.0 Introduction 5.1 The author's biography 5.2 Meaning and significance 5.3 Juristic features 5.3.1Iladith Sallie 5.3.2 Hadith Masan 5.3.3 Hadith Daif 5.4 Compilation methodology 5.4.1Numbers of Hadith 5.4.2 Arrangementof chaptersand sub-topics 132 132 134 135 136 140 144 147 148 150

ix

5.4.3 The specific terms 5.4.3.1al-Sabra 5.4.3.2al-Sitta5.4.3.3 al-Khamsa

159 160 161162

5.4.3.4al Arba"a 5.4.3.5'al-Thaltha 5.4.3.6al-Muttafaq calayh5.5 Summary

163 163 164165

PART C: ANALYSIS OF TIDE AHDITH Introduction to Part C Methodology of analysisCHAPTER 6: KITAB AL-BUYC ; APPLICATION OF AL-MALAHA OF AL BUYCc OF TIIE CONCEPT

167 168

WA AL-NA$$ TO TIDE AHDITH

6.0 Introduction 6.1 Definition and Significance of al-Buyu`c 6.2 Chapteron BusinessTransactions 6.2.1 Conditions of businesstransactionsand thosewhich are forbidden 6.2.2 al-Khiydr or Options of transaction 6.2.3 al-Rib or Usury 6.2.4 Permissionregardingthe sale of al-Àry and the sale of trees(al-Ull) and fruits (al-Thimr) 6.2.5 Paymentin advance(al-Salm), loans (al-Qarcl)

170 170 173 175 197 200

207

(al-Rahn) andpledges6.2.6 al-Taflis wa al-Hajr or Bankruptcy and seizure

210214

6.2.7al-Sully Reconciliation or6.2.8 al-Hawla wa al-IDamnor The transfer of a debt and surety 6.2.9 al-Shirka wa al-Wakla or Partnershipand agency 6.2.10 al-Igrr or Confession 6.2.11 al `riya or Loan 6.2.12 al-Ghasabor Usurpation 6.2.13 al-Shuf a or Option to buy neighbouring property

218221 224 227 228 231 233

X

6.2.14al-Qird or Equity sharingbetweeninvestor and entrepreneur 6.2.15al-Musgt (cultivating and sharingthe profit of the land) andal-Ijra (wages) 6.2.16 Iliyd' al-Mawt or Developing barren lands 6.2.17 al-Waqf or Endowment

235

238 242 246

6.2.18 al-Hiba (Gifts), al cUmra (life-tenancy), and al-Ruqba (giving property

for the recipient's life time)6.2.19 al-Lugata or Lost and found items 6.2.20 al-Far'id or Shares of inheritance 6.2.21 al-Wasdyd or Wills and testaments 6.2.22 al-Wadi a or Trust's property 6.3 Summary

248252 255 260 263 265

CONCLUSION OF THESIS Conclusion Suggestion

267 267 271

GLOSSARY OF ARABIC TERMS

272

BIBLIOGRAPHY

280

xi

NOTES ON TRANSLITERATION

This work adopt the rules of transliteration usedby Encyclopediaof Islam, with slight variationsConsonants

(hamza)(b') (ta') b t

ub

(dad)(t') (z')

a1 z

(th')c c Z GYM) (h') (kh') (dl) (dhl)(r')

thJ h kh d dhr

(ayn) (ghayn)

c gh f q k Im

u.

(fa') (af) (kf)

c1 0

(15m)(mim)

(zay)

z

(nun)

n

ui" uAc4

(sin) (shin)(*d)

s shVowels

(ww) '.q

(h')(y')

w hy

(fathale)

a i

longfatlialz

(kasra)

long kasra

i

'

((lammah)

u

long clammah

-

Tanwin

is represented an, in, un respectively. by

Transliteration involve only Arabicwords.Otherswill be written in italics. will Exceptions " The namesof well-known places, Mecca, Medina, Iraq. e.g.

xii

" "

No macron over the last i in names. Authors and titles of non-Arabic books.

X111

LIST OF ABBREVIATIONSÀwn al Macbd al-Abdi, Abi Mansur, Tahdhib cAwn al-Ma bd al-Abdi, Abi Man5r Muhammad b.Ahmad al-Azhari, Tahdhib al-Lughah

AbU Dawd, SunanAbd.A1-Razzq, al Musannaf

Ab Dawd, SunanAbd. A1-Razz5q, Ab b. Humam a1-Sanani, al-Musannaf

Abd al-Ghafar,CriticismAbd al-Khliq, Hujjiyyat Abd. al-Majid, al-Madkhal

Abd al-Ghafar, ShuaibHasan,Criticism of Iladith Among Muslims with Referenceto SunanIbn MjahAbd al-Khliq, Abd al-Ghni, Hujjiyyat al-Sunnah Abd. al-Majid Mahmd al-Matlb, al-Madkhal fl bi al-Fiqh al-Isldmi wa Ususihi wa al-Tarif Khasiihi wa Masdirihi

Ab Zahra, Uszl Ab Zahra,Ab Iianifa

Abu Zahra, Muhammad, Usiil al-Fiqh Ab Zahra Muhammad,Ab Hanifa: Haytuhu,wa Àsruh,ra 'uh, wa Fiqhuh AbU Zahra Muhammad,Mlik: Uayatuhu,wa Asruh, Ar'uh, wa Fiqhuh AbU Zahra Muhammad, al-Shf(i: Haydtuhu,wa cAsruh,Ar'uh, wa Fiqhuh Ab Zahra Muhammad,lbn Ilanbal: Haytuhu, wa Asruh,ra 'uh, wa Fiqhuh Ab Zahra Muhammad, Trikh al-Madhhib j al-Siysahwa al Àgd'id wa al-Tdrikh al-Islmiyyah al-Madhhib al-Fiqhiyyah Ab Zahw MuhammadMuhammad, al-Hadith wa al-Muliaddithfsn

Ab Zahra,Mdlik

AbU Zahra, al-Shdf(i Abn Zahra,Ibn Ilanbal

Ab Zahra, Tdrikh

Abti Zahw, al-Iladith

a mad,Musnad,'Ali, Al-Shf(i

Ahmadb. IHanbal, Musnad"Ali Abd. Karim, Al-Shf(i's Contribution to Hadith an Annotated Translation of His Work Jim alCIlm Sayf al-Din Ali b. Muhammad,Al-Illkm al-Amidi, fT Usl al Altkm

al-Amidi, Al-Ilikm

xiv

al-Amidi, GhyahcAmiri, At-Tuft a1

Sayf al-Din All b. Muhammad,Ghyah al-Amidi, al-Marmjiìlm al-KalmcAbdallah M. al-Husayn, At-Tuft's al-Amiri, Refutation of Traditional Muslim Juristic Sources Law And His View On The Priority of Regard of For Human Welfare As The Highest Legal Source Or Principle

Anderson,Islamic Law al-Ashgr,al-Shari a al-Ashgr,Nazart al-Ashgr, Trikh Atryah,Nahw Ta, fìl CUmda al-Ayni, al-&i Baalbaki,al-Mawrid al-Baghawi,Sharlc

AndersonJ.N.D., Islamic Law in the Modern World Umar Sulaiman,al-Shari a al Ilhiyya la al-Ashgr, al-Qawnin al-Wacfiyya Umar Sulaiman,NazartJ Usl al-Fiqh al-Ashgr, cUmar Sulaiman, Trikh al-Fiqh al-Islmi al-Ashgr, Atiyah Jaml al-Din, Nalcw Taf V Magsid al-Shari a Abu Muliammad Malimild b. Ahmad, al-Aynru, Umdaal-Qri bi Sharli Sahili al-Bukhri Baalbaki,Rohi, al-Mawrid AbU Mul)ammadal-Husaynibn Masd al-Baghawi, al-Farr', Sharli al-Sunna Sulaymanibn Khalaf, al Muntaq Sharp al-Bji, al-Muwall' Bakar, Mohd. Daud, Conflict of Law and the Methodology of Tarjih; A Study in Islamic Legal Theory Bakar, Mohd. Daud, TheDiscernmentof Maslaha in Islamic Legal Theory Ballantyne W.M., Note on the New Commercial Code of Bahrain al-Bagilni, Abu Bakr Muhammadb. al-Tayyib, jial-Rad àla al-Mullaida wa al-Mi! allila al-Tamhid wa al-RfIda wa al-Khawdrj wa al-MuCtazila. Ab al-Husayn Muhammadb. 'Ali b. al-Basri, al-Tayyib, al Mu'tamad fl U. l al-Fiqh al-Baydwi, Abdullah b. Muhammad al-Shirzi, Minhj al-U iil ila Ìlm al-UUl

al-Bji, al-Muntaqa Bakar, Conflict of Law

Bakar, TheDiscernment

Ballantyne,Note

al-Bagilni, al-Tamhid

a1-Ba*ri,al-Mutamad al-Baydwi,Minhj

xv

al-Bayhaqi, Sunan

Abra Bakar Ahmad b. al-Husayn, Sunan al-Bayhaqi, al-Kubr Abu Bakar Ahmad b. al-Husayn, Managib al-Bayhaqi, al-Shjri

al-Bayhaqi, Mandgib

al-Bazdwi, Usl Brockelmann,Historyal-Bukhri, Jmi` Burton, The Sources

Ali b. Muhammad, Usl al-Bazdawi al-Bazdawi, Brockelmann,Carl, History of the Islamic Peoplesal-Bukhri, Ismail b. Yahya, Jdmi' al-Sahib Burton, John, The Sources of Islamic Law, Islamic Theories of Abrogation

Dawbil al-Bti,

.

al-Bnti, - Muhammad Said Ramadan, Dawdbit alMaslalia ft al-Shari ah al-IslmryyahBuang, Ahmad Hidayat, The Prohibition of Gharar in The Islamic Law of Contracts: A Conceptual Analysis with Special Reference to the Practice of Islamic Commercial Contracts in Malaysia.

Buang, The Prohibition

Calder,Studies Cobuild, Learner Coulson,A History Coulson, Conflicts

CalderNorman, Studiesin Early Muslim Jurisprudence Collins Cobuild, Learner's Dictionary Coulson,N. J., A History of Islamic Laws Coulson, N. J., Conflicts and Tensions in Islamic Jurisprudence

Hujjatullah al-Dahlawi,al-Dardlr, al-Sharp al-Dsgi, Hshiyah

Shah Waliyullah b. Abd al-Rahim, al-Dahlawi, Huf atullahal-BlighaAb al-Barakat, Abmad b. Mut ammad, alal-Dardiir Sharli al-Kabir àla Mukhtayar Khalil Ibn Arafah, Hshiyah al-Qsugi àla alal-Dsgi, Sharli al-Kabir

Tadhkira al-Dhahabi,Doi, Shari ah al-Durayni, Nazariya

Tadhkira al-Hufz al-Dhahabi,Doi, 'Abdul al-RahmanI, Shari ah: TheIslamic Law Muhammad Fathi, Na?ariya al-Taàssufii al-Durayni, Istfml al-Haq fTal-Figh al-Islmi al-Durayni, Muhammad FattiL al-Manhy al-UUliyyah

al-Durayni, al-Manhij

xvi

al-Durayni, Khas'is

Muhammad Fatlhi, Khasd'is al-Tashri alal-Durayni, Islmi fi al-Siyasahwa al-HukmDutton, Yasin, The Origins of Islamic Law First Encyclopaedia of Islam

Dutton, The Origins Ell,

EI? English TranslationFyzee, Outlines

SecondEncyclopaediaof Islam English Translation ofBulgh al-MarmFyzee, Asaf A. A., Outlines of Muhammad Law

al-Ghazli,al-Mustas al-Ghazali,,Shif'

al-Ghazli,Abi Hmid Muhammadb. Muhammad ibn Muhammad,al MustasJa ft Ìlm Usl al-Ghazli,AbTIHmidMuhammadb. Muhammad ibn Muhammad,Shy'al-Ghalil JiMaslik al-Talil a1-IIkim,al-Mustadrak àla al-$alliayn Hallaq, Wael B., A History of Islamic Legal Theories: An Introduction to Sunni Usul al-Fiqh IIasan, Ahmad, TheEarly Developmentof Islamic JurisprudenceHassan Hussein Hamid, Na?ariya al-Mallalia Fiqh al-Islmi fT al-

al-Hkim, al-Mustadrak Hallaq, A History

Hasan,TheEarly

Hassan, Nazariya

Hassan,Studies

Hassan, Mohamed Fadzli, Studies on the Principles and Theory of Maqasid al-Sharicah in the Sunni Schools With Their Application to Malaysia Law Hilali, Muhammad Taqi al-Din, Muhammad Muhsin Khan, The Translation of The Noble Qur'an In The English Language Hitti, Philip K., History of The Arabs; From The Earliest Timesto ThePresent Hornby, A S, Oxford Advanced Learner's Dictionary of Current English Husain, Istinbl al Alzkm Min al-Nus. y

Hilali, The Translation

Hitti, History

Hornby, Oxford

Husairi, Istinbdl

Ibn al-Athir, al-NihiiyaIbn Abd al-Barr, al-Tamhid

Ibn al-Athir, al-Nihya Gharibal-Hadith ftIbn Abd al-Barr, Ab 'Umar Yusuf al-Qurtubi,

xvii

al- Tamhrd lima fi al-Muwatt' min al-Ma'dn Masnid

wa al-

Ibn Abd al-Barr, al-Intig'

Ibn Abd al-Barr, Ab Umar Yusuf al-Qurtubi, al-Intig' f Facl'il al-Thaltha al A'imma al-Fugah' Malik, al-Sh4fit i wa Ab Ilanifa

Ibn Abd al-Barr, Jam(

Jmi' al-Bayn al-ilm wa facllihi wa ma yanbaghi fi Riwayatihi wa Hamlihi Ibn Abd Salm, Qaw id Ibn Abd Saldm, Izz al-Drn, Qaw id al Alikm f Maslil: al Anm

Ibn Abd al-Barr, Ab 'Umar Yusuf al-Qurtubi,

Ibn cAshr,Magcid,

Ibn Asht r, Mag. al-Shari a al-Islamiyya yid

Ibn IIajar, Bulgh al-Mardm Ibn Hajar al-Asgalni,Ahmad b. "Ali, Bulgh al- Marm min adilla al Alikm Ibn Iiajar, Tahdhib Ibn ajar alAsgalni, Ahmad b. "Ali, Tahdhib al-Tahdhib Ibn Hajar al-Asgalni, Ahmad b. "Ali, Tagrib alTahdlb Ibn Hajar a1-Asyalni, Ahmad b. "Ali, al-I, ba fi Tamyizal-,Saliba Ibn Ijajar al-Asgalni,Ahmad b. 'Ali, Rai` al À, cr àn Qudt Micr Ibn Hajar al-Asya1ani, Ahmad b. cAli, Fats al-Bri bi Sharh $aliili al-Bukhri Ibn Hajar alCAsgalni,Ahmad b. "Ali, Anb' al-Ghumar bi Anb' al cUmr Ibn Hajar al-Asgalni,Al mad b. "Ali, al-Majma al Mua'ssas

Ibn Hajar, Tagrib

Ibn IHajar,al-ILba Ibn Hajar, Raf al-Ar Ibn Ijajar, Fatly al-Bid Ibn Hajar, Anb'

Ibn Hajar, al-Majma`

Ibn Hajar,NuzhaIbn Hajib, Hshia

Ibn Hajara1= Asgalni, Ahmadb. 'Ali, Nuzhaal-Nazar ft TawdiltNukhbaal-FikrIbn Hajib, Jamal al-DIn Ab 'Amr, Hshia al-Sharif al-Jurjnicala Mukhtacar al-Muntaha al-Ucli Ibn IHazm,Ab Muhammad 'Ali b. Al mad, al-Ihkmft Usiclal Alikm

Ibn Ham, al-Ihkm

xviii

Ibn al-Jawzi,Mandkib Ibn Kathir, al-BidyaIbn Khaldn, al-Muqaddima

Ibn al-Jawzi Abd a1-R4man b. 'Ali, Mankib al-Imm Allmad b. hlanbal Ibn Kathir, Ismail b. Kathir, al-Bidya wa al-NihizyaIbn Khaldnn al-Mugaddima

Ibn Khallikn, Wafyat

Ibn Khallikn Al mad b. Muhammad,Wafa-yat wa Anb' Abn' al-Zamn al-'AynIbn Mjah, Muhammad b. Yazid, Sunan Ibn Mjah

Ibn Majah, Sunan

Ibn Manzr, Lisdn

Ibn Manzr, Mulhammadb. Mukarram ibn 'Ali, Lisdn Àrdb al Ibn al-Najjr al-IHanbali,Muhammadb. Al mad b. Abd al-Aziz b. Ali al-Futhi al-IIanbali, Sharp alKawkib al-MunTr al Musamm bi Mukhtacar al-Talirir, Sharli al-Mukhtasar ft aw al-Mukhtabr al-Mubtakar Usl al-Fiqh Ibn Qayyim al-Jawziyyah, Shams al-Din Ab Abd Alah b. Abi Bakr, Adlm al Muwaqqfin "an Rabb al' lamin Ibn Qayyim al-Jawziyyah, Shams al-Din Ab CAbd Alah b. Abi Bakr, Sys' al-Àlil ft Mas'il al-Qacl' wa al-Qadr wa al-Hikma wa al-Talil Ibn Qayyim al-Jawziyyah, Shams al-Din Ab Abd Alah b. Abi Bakr,Zd al-Ma{ad Ibn Rushd al-Iiafid, AbU al-Walid, Muliammad b. Ahmad b. Muhammad b. Ahmad, Biddya al-Mujtahid wa Nihya al-Mugtacid Ibn Rajb, AbU al-Farj, Abd al-Rahmanb. Shihbal-Din b. Rajb, al-Qaw id fi al-Fiqh al Islmi Ibn al-$alh al-Shahrzun,Abu Amr cUthmanb. Abd Muqaddimah Ibn al-$alli ft "Nam alal-Rahman, Ijadith Ibn al-Salh al-Shahrzuri,Ab Amr Uthman b. Abd al-Rahman,,Siydnah $'alli Muslim Ibn Taymiyya, Tagi al-Din Abu alAbbs, Majm alFatw

Ibn al-Najjar, Sharp

Ibn Qayyim,A`lm

Ibn Qayyun,Syi '

Ibn QayyIm,Zd

Ibn Rushd,Bidya

Ibn Rajb, al-Qaw id Ibn al-$alh,Muqaddimah

Ibn al-Salli,iynah Ibn Taymiyya,Majm

xix

Ibn Taymiyya, Minhj

Ibn Taym yya, Tagi al-DIn Ab al-Abbas, Minhj alSunna al-Nabawiyya

CImd,Shadhara Ibn a1Ibrahim, al-Dallt,

Ibn a12Imd Abu al-Fallah Abd al-Iiayyi al-Hanbali, Shadharaal-Dhahbf Akhbr man DhahabIbrahim b. Ahmad b. Sulaiman al-Kindi, al-Dallt wa Turq al-Istinbt Ihsan Bagby Àbdul Wajid, Utility in Classical Islamic Law: The Concept of Maslalta in Usl al-Fiqh Islahi, Islamic Law, Concept and Codification

Ihsan, Utility

Islahi, Islamic Law

al-Iywni, Ta'lil

Taha Jabir Fiyad, Ta`lil al Alikm al-Shariyya wa Ikhtilf al -Ulam' fih wa Hagiqa Mawqif wa 'Athr Zalika j Hujjiya al-QiysIzzi Dien, Mawil, Islam and Environment, theory and practice

Izzi Dien, Islam

Izzi Dien, The Theory

Izzi Dien, Mawil, The Theoryand Practice of Market Law in Medieval Islam Izzi Dien, Mawil, Maclalia In Islamic Law: A Source A Concept?A Framework For Interpretation or Izzi Dien, Mawil, Islamic Law, From Historical Foundation to ContemporaryPractice 'Ali b. Muhammadb. Sharif, Kitb Tacrift al-Jurjni, Jaziri, Abd al-Rahman,Kitb al-Figh Gala al-Madhhib al Arbaàh Abd al-Malik b. "Abd AbU al-W5111 al-Juwayni, Allah b. Yusuf, al-Burhnfl U. al-Fiqh cil Abu al-Matl1i cAbd al-Mlik b. Abd al-Juwayni, Allah b. Yusuf, al-Irshd, ila Qawli` al Adilla ji Viril al-ftigd Abdullah Yahya, Min Fiqh al-Muwzana al-Kamli, bayna al-Maslili al-Shariyya al-Kamli, Abdullah Yahya, al-Sharryyaal-Islamiyya wa Fiqh al-Muwdzana al-Kamali, Abdullah Yahya,Ta'. TlFiqh al Muwzana

Izzi Dien, Maclalia

Izzi Dien, Islamic Law,

al-Jurjni, Jaziri, Kitb,

al-Juwayni,al-Burhn,

al-Juwayni,al-Irshd,

al-Kamli, Min Fiqh

al-Kamli, al-Shariyya al-Kamli, Ta'cil

xx

Kamali, Shari ah Kamali, Have We

Kamali Mohamad Hashim, Shari ah as Understoodby the ClassicalJurists Kamali MohamadHashim,Have WeNeglectedThe Shari ah-Law Doctrine of MaslahaKamali Mohamad Hashim, Principles of Islamic Jurisprudence Kamali Mohamad Hashim, Magsid al- Shari ah: The Objectives of Islamic Law

Kamali, Principles

Kamali, Maqsid

Kandahlawi,Hujja al-Khalifa, Madrasa al-Khatib, Usl al-Khatib, Trikh al-Khuli, Mcftlc

Kandahlawi, Hujja Allah al-Bligha MuhammadRashad,Madrasa al-Hadith,T Misr al-Khalifa, Muhammad Ajjj, Usl al-Ijadi-th `Namuhu al-Khatib, Mugtalhuhu wa al-Baghddl, Abu Bakar Ahmad b. 'Ali, Trikh al-Khatib Baghdd Muhammad Abd Aziz, Miftli al-Khuli, Trikh Funn al-Hadith al-Sunna wa

Macdonald,Development MacdonaldDuncan Black, Developmentof Muslim Theology,Jurisprudenceand Constitutional Theory Mahmasni,Falsafat Mal)masni,Sublii, Falsafat al-Tashrfft al-Islm

Mahmasni,al-Nazariyydt Mahmasni,Subhi, al-NaZariyyt al Àmma li al-Mjibt T wa al-Uqd, al-Shari a al Islmiyya Majid, Islamic Majid Khadduri, Islamic JurisprudenceShaffi's Risla Malik bin Anas, al-Mudawwana al-Kubra Malik, al-Muwall' Masud, Muhammad Khalid, Shatibi's Philosophy of Islamic Law Muslim b. al-Hajjj al-Nisbn, $alzilt Muslim Muslehuddin Mohammad,Islamic Jurisprudenceand the Role of Necessityand Need Sunanal-Nasd'i al-Nasal, Abmad b. Shuayb,

Malik, al-Mudawwana Malik, al-Muwatt' Masud, Shatibi ,

Muslim, Saliili Muslehuddin,Islamic

al-Nas'i, Sunan

d x,

al-Nawwi, Tahdhib

Ab ZakanyyaMulhy al-Din b. Yahya al-Nawwi, b. Sharf, Tahdhibal Asmil' wa al-Lugha Ab ZakanyyaMuhy al-Din b. Yahya al-Nawwi, Mush b. Sharf, al Minhj f Sharli Saleihal-Nawwi, Ab Zakariyya Muhy al-Din b. Yahya b. Sharf, FaItTliMuslim bi Sharli al-Nawwi

al-Nawwi, al-Minhjal-Nawwi, Sharp

Numan, Turuq

NumanJughaim, Turuq al-Kashp àn Magsid ca al-ShariNyazee, Imran Ahsan Khan, Theories of Islamic Law: The Methodology of Ijtihad

Nyazee, Theories

al-Qardwi,AI-Sunnah al-Qardawi,Al-Saliwah al-Qard4awi,TheLawful al-Qarfi, Tangili

al-Qarciwi YUsuf, Al-Sunnah Ma. darn Lil Macrifah wa al-Haclrah a1-QardwiYtisuf, Al-$altiwahal-Islmiyyah bayna al Juhd wa al-Talarrf al-Qard4awi Ysuf TheLawful and the Prohibited in Islam al-Qarfi, Shihabal-Din Ab at-"Abbasal-Sunhaji Tangilt al-Fulfil ft lkhti, r al-Majgfil f ellm al-Bahnasi, Sharli Tangih al-Ful al-'Ucl Rahimin Affandi Abdul Rahim, Islamic legal Reform In TheAdministration of Islamic Law In Malaysia: A Critical Analysis Fakhr al-Din Muhammadb. `'Umarb. al-Rzi , fI al-Iiusayn, al-Malesil Ilm Ucfil al-Fiqh S.E Rayner, The Theory of Contracts in Islamic Law al-Raysni, A1imadand Ahmad JamlBrt, Al-Ijtihd al-Nass,al-Wgi', al-Mallalia al-Raysni,Ahmad, Na?ariyyat al-Magcid Cinda al Imm al-Shlibi 5allaAllah alaih wa Sallrn Ab al-Khayr Muhammadb. Abd al-Sakhwi, al-Rabman,alJawhir wa al-DurrJi Tarjamah Shaykh al-Islam Ibn Hajar al-Sakhwi, Abu al-Khayr Muhammad b. Abd

Rahim, Islamic

al-Rzi, al-Maltil Rayner, The Theory al-Raysni,Al-Ijtihd

al-Raysni,Nazariyyat

s.a.w al-Sakhwi,al Jawdhir

a1-Sakh5wi, al-law'

xxiia1-Rahmanal-Daw' al-Lmi'

Subul al-Sanni, Schart,An IntroductionSchact, The Origins

Subul al-Salm Muhammadb. Ism11, al-Sancani, Schact,Joseph, Introduction to Islamic Law AnSchact, Joseph, Jurisprudence The Origins of Muhammadan

a1-Shfii, al-Risla al-Shfii, Ikhtilf Shlibi, Ta`1Tl al-Sht3bi, al-ftisdm al-Shatibi, al Muwfagt Shawkni,Irshad

al-Sh5fii , Muhammadb. Idas, al-Risla al-Shfii , Muhammadb. Idas, lkhtilf al-Hadith Shlibi, MuhammadMustafa, Tadlil al Alzkm al-Shtibi, Ibrahim b. MUsaal-Lakhmi, al-ftijim al-Shtibi, Ibrahim b. MUsaal-Lakhmi al-Muwfagdtjl Usl al-Shari ah Shawkiini Muhammadb. "Ali, Irshd al-Fulal i1 Taligiq al-Haq min Ìlm al-Usl Shawkni, Mu1iammadb. 'Ali, Nayl al Aw(r Sibi Mu*tafa, al-Sunnahwa MakanatuhfT al-Tashri al-IslmiSiddiqui, Muhammad Zubayr, Hadith Literature: Origins, Development and Special Features

Shawkni,Nayl Sibi,al-SunnahSiddiqui, Hadith

a1-Suyti,Tadrib

Ja11 b.,Abd al-Rahmanb. Abi Bakr a1-Suyti, al-DIn TadrTb f Sharli Tagrib al-Nawwi al-Rwi Jall al-Din b. Abd al-Raliman b. Abi Bakr al-Suyti, Shark al-Suyli Li-Sunan al-Nas'i Ja151 b. cAbd al-Rahman b. Abi Bakr, al-Suy-aj, al-Din Tabagtal-Huf a? Tabri, Abu JafarMuhammadb. Janr, Tdrikh alrusul wa al- muluk Saadal-Din Masdb. "Umar, Sharli al-Taftazni, àla al-Tawclili li Main al-Tangih fl U l al-Talwili al-Fiqh

al-Suyti, Sharp al-Suyti i, Tabagat Tabri, Trikh

al-Taftazni,Sharp

Sunan al-Tinmidhi, cUbaydi,al-Shlibi a1

b. Sunan Ab IsaMuhammad Sawrah, al-Tirmidhi, Hammdi, al-Ubaydi al-Shlibi wa Magcidal-

xxiii

Shari a

Ta`lil a1-Ungari,Wizrah, Al Maws ah

Dirsa wa Tdlil al Alikm al-Syar Fyya al-Ùngari, TatbiqWizrah al-Awgf wa al-Shu'nn al-IslmIyyah, Al Maws ah al-Fighiyyah Yaqt, Shahb al-Dn b. Abdullah al-Hamawi alRmi, Muljam al-Buldn Zamakhshan AbU al-Qasim Mahmd b. "Umar, al-Balghah Ass

Yaqt, Mu'jam

Zamakhshan, Asds

al-Zarakshi,al-Balg al-Zaylai, Nasb Zayd, Al Maclalia Zaydn,AI-Wajiz al-Zirikli, Al Adlm

Badr al-Drn Muhammadb. Abdullah, al-Zarakshi, al-Baler al-Multi( i Jamal al-Din, Nacb al-Rya li Alzdith al-Zaylaal-Hidya

Zayd, Mustafa, Al-Mallalta fi al-Tashri al-Islmi ZaydnAbd al-Karim, Al-Wajiz fl UU1 al-Fiqh al-Zirikli, Khayr al-Din, Al A`ldm, QdmsTarjim Li Ashar al-Ryl a1-ZOayli, Wahbah,Na?ariyat al-Darira al-Shariyya al- Zuhayli, Wahbah, U. al-Fiqh al-Islmi 4l al-Zubayli, Wahbah,Al-Fiqh al-Islmi wa Adillatuh

al-Zuhayli, Nazariyat a1-Zuhayli,Ucl Al-Fiqh a1-Zuhayli,

IINTRODUCTION

Background

In Islamic jurisprudence, the formation of the juristic concept of maclalaaor interest in connection with Islamic legal texts or nujs has been termed public E), maslalia mu`tabara. For al-Ghazli (d.555H11111C. the category of maslalia mu"tabara is juristically consideredthe validity and recognisedmallalia, since there is textual evidence in its favour, particularly in the Qur'an and the Sunna or the Iladith of the Prophets.a.wI. Apart from mutabara,the categoryof maclalta mursala has beenjuristically recognisedby many jurists although it has no textual divine evidencein its favour. At this stage, it can be learned that any juristic rule that formed in the category of

mursalabut hasno parallelruling andprinciplewith the objectiveof Islamic mallalla law, would therefore categorised discredited be mulghaor unrecognised, nullified andmaclalta2. This principle highlights the significance of maga$id al-shari a or the

Islamiclaw in the formationof newrulings. ultimateobjectiveof Importantly, the above discussion underlines the category of maslahathe highest level in its category of which juristically in line with the muctabaraas

Islamic law or magd. al-shari a. This is because existence id the ultimateobjectiveofof textual divine evidence or proofs from the primary sourcesof Islamic law in the category of maclalta al-mu`tabara. In line with this category, some Muslim jurists form the term al-maslaha wa al-nass as the juristic concept of public interest in

1 a1-Ghaz5li, Mustasfa, 2, 118. al v. p. 2Ibid

2which interrelated with textual, Hadith. civine the Qur'an and the evidence particularly

The notion of juristic conceptof al-nass wa al-maclalia or al-maclalia wa alnags (interchangeableterms) has been introduced concisely by Abmad al-Raysni and Abmad Jamal Banat in one of sub topics of the book entitles al-Ijtihd: al-Nass, al-Waq(, al-Maslaha3.In the introduction to the concept of al-maslalia wa al-naffs, Ahmad al-Raysu-uii claims that the current phenomenonof discussionamongMuslim jurists on the subject of al-àql (reason) in accordancewith al-nagl (transmitted), is somewhat similar to that of in connection with najc4. Furthermore, in maclaha

practice, he affirms that apart from the Qur'an, the Hadith of the Prophet s.a.w is a living sourcethat aims to preservethe public interest of the life of humanitys. It appears that Ahmad al-Raysni's arguments on the significance of the

For conceptof al-maclalca al-nass is pivotal to be furtherexamined analysed. and wathis reason,some related questionsmay arise here; on what basis the concept of al-

in is examined the light of Islamicjurisprudence? the Uadt-th If malajtawa al-nag juristic the Prophets.a.w is chosen a reference legal textsin connection of as with ofthus, is there any limitation as well as special referenceto this concept of maslalia, thesis becauseof the huge numbers and referencesfor the Vadi-th? Above all, what are the main purposesof this thesis to highlight the concept of al-maclalta wa al-nalc

to asthebasicsubject be examined?To answerto these particular questions,the next topic will discussregarding the purpose,scopeand limitation of the presentstudy.3 See al-RaysniandBrt, al-Ijtih4 p.28,49-59. 4Ihid 5Ibid

3Purpose, scope and limitation of thesis

The main-purposeof this thesis is to examinethe formation of the concept ofal-maslalta wa al-nass in the light of Islamic jurisprudence. To achieve this main

purpose,this thesiswill examinethe definition, historical andtheoretical development of the conceptof al-malalta wa al-nass.This examination aims to highlight the basic foundation upon which the formation of this concept is established in Islamic jurisprudence. Further examination will focus on the significance of taclil al-alikm for the concept of al-maclalta wa al-na..F. The purpose of this examination is to analyse the process of taflil al-ankam from the legal text of the Qur'an and the Iladith. This processaims to identify the principles of public interest'as well as the objective of Islamic law that encompassin the legal text of the Qur'n and the Hadith. At this stage,it can be learned that the concept of al-malalzawa al-nass is

juristically applicablein the analysis the divine legal texts of the Qur'an and the ofHadith. In other words, the concept of al-maslalia wa al-nalc can be applied to the subject of Qur'anic exegesis(tafsir al-Qur'an) and the analysisof the IHadith (sharp al-Hadith).

As a matter of scopeand limitation of study,this thesis will focus on the Hadith of the Prophets.a.w asa reference legal textsin the analysis the concept of of for of al-maslalta al-nafl. Sincetherearehugenumbers references. theHadith wa andthe Prophet s.a.w, a special referenceto the book of Bulgh al-Marrn is made for of the purposeof analysis.Bearing in mind that the book of Bulgh al-Marm consists of a total number of 1572 ahadith. In addition, there are 16 chaptersand 93 subtopics that enclosein that book. Based on these factual numbers,this thesis will focus only on one of the chapters of Bulgh al-Marm namely Kitb al-Buyuc or chapter on

4businesstransactions.The limitation of chapteron Kitb al-Buyu' in this thesis aims to juristically analyseits 22 sub topics as well as 176 altdith within the concept of alIt is hopedthat the chapteron Kitb al-Buy will be analysedin maslahawa al-nass. revealing the principles of public interest and their main objectivesof Islamic law of transactions. Research Methodology The study is mainly based on library research within the field of Islamic Jurisprudencein connection with the prophetic source of the Iladith s.a.w. Three basic issues will be discussed: Firstly, the concept of al-mallalla wa al-na. y. F. Secondly, the references sources for the Iladith s.a.w and the book of Bulgh alMarm. Thirdly, Kitab al-BuyY;the application of the concept of al-maclalia wa alto the aliddith of al-Buy. nac

Thebodyof the thesisis focused developing elaborating main field the on andof the study and as a library research;it will entail theoretical, historical, analytical and descriptive approaches.The Sunni Schools of law will be confined to their

concernwith the broadprinciplesof al-maclaltawa al-nag. The studywill refer tovaluable Sunnijuristic sourceswritten by manyjurists such as al-Imm al-Ghazli, alImm al-Shatibi, al-Imam Ibn Qayyim al-Jawzi, al-Imm Izzuddin Abd al-CAzizb.

Abdal-Salm othersregarding juristic conceptof maclalta its connection the and andwith Islamic legal texts, nail. For the book of Bulgh al-Marm, the methodology of compilation will be focussed on the second part of this thesis. This includes the variation numbers of al dith Sakilc, Vasan and Daìf from each chapter of Bulgh al-Mardm. Diagrams

5and tables will be drawn up to highlight the variation numbers of those types of alidith. In the part of analysis, the methodology of mulaaddithnor scholars of the Hadith will be applied to analysethe rulings that enclosein 176 aliddith of Kitb alBuy of Bulgh al Mardm. However, the analysisof rulings is boundedto rewrite the disagreementof jurists regarding the rulings of the Uadi-th.As an alternative, the agreed rulings by jurists will be highlighted in the analysis of those aliddith. This approach will be applied as methodology in the application of the concept of almaclalia wa al-nass to the analysisof those altdith. Furthermore,the methodologyof simple and,concise elaboration and analysis will also be applied to the process of talil al-ahkm that aims to examinethe principles of public interest in the alcdith of Kitb al-Buy of Bulgh al Marm. Literature Review

From juristic historical facts, the concept of maclalta has been a popular Muslim jurists since the beginning of the 7t' century A. H.6. Many, subject among

particularlyfrom the prominentSunnijurists, hadbeguntheir research the subject on In of mallalia within the frameworkof Islamicjurisprudence. the 8th centuryA.H.,Ab Ishq al-Shtibi (d. 790/1388) produced two books entitled al-Muwfagt ft

U. l al-'Abkam and al-ftildm, which discussthe classificationand the levels ofmaslalcain the light of Islamic jurisprudence. Al-Shtibi's opinion on ma. as the Flalta ultimate objective of Islamic law affirms that of al-Ghazli (d. 555/1111), as revealed in al-Mustasfamin cilm al-'UUfil and Kitb Ship-' .

6Zayd, Maslaiza, 21. alp.

6The discussionon maslalaa, in connectionwith the legal texts, has particularly been general as well as specific in the works of Hanafi jurists such as Abd alAziz Kashf al Asrdr, a commentary on 'UUid al-Bazdawy. In al-Bukhri, who wroteHanbali legal theory, Majmuc al-Fatwa by Ibn Taymiyyah and al-Mughni by Ibn

Qudmah also discuss the concept of mallaha as a legal principle in Islamic jurisprudenceand its connectionwith the Islamic primary sources. Most discussions in the preceding classical sources indicate that the Muslim life must be basedon the light of God's revelation application of maslalcaon despitea lack of specific referenceto the concept of al-maslalia wa al-nass, it is and clear that al-Qur'dn and Sunnaprioritise the application of public interest Sincethe scientific period of jtihd, (particularly from the year 132 until 350 A. H. 7) with its implication for the modem Muslim world, the theory of al-ma. Flilt al-

by thanthat of al-majlaltawa al-nafj hasbeenapproached effectively mursalarather jurists. Much research beenconducted publishedon the subjectof ma. has ylaha, andin elaborating the type of al-maslilt al-mursala. Some of these most particularly

importantcontemporary are as follows: al- Mallalta ft Tashri al-Islmiy wa works(1964) Mustafa Ab Zayd, Dwbil al-Mallalta fi al-Shari ah al-Najm al-Din al-Tfi (1966) Said Ramdn al-BUti and Na?riyat al-Malalia ft ftgh alal-Isldmiyyah

in to Islmi (1981)IIusaynHamidHassan. Most of the discussion thesebooksrelates the argumentsput forward by Najm al-Din al-Tfi who authorisesrecoursetothe presenceof a textual ruling or ym, (consensus). mallalta with or without

7 Rahim,Islarnic, 32 p.

7There has been considerable research conducted on the topic of maslalia. Attempts have been made to explore a new focus on the subject such as; `Malik's Conceptof Maslalia (The Consideration of The CommonGood): A Critical Study ofThis Method As A Means of Achieving The Goals and Purposes of Islamic Law With Special Reference To Its Application At The Shari 'ah Courts In Nothern Nigeria', (1991) written by Yushau Sodiq, `Maslahah dan Pemakaiannya Di Dalam UndangUndang Jenayah Islam', (Malay language), (1999) written by Ridzwan Ahmad and

`StudiesOn ThePrinciples And Theory of Magsid al-Shari'ah In The Sunni Schools With Special ReferenceTo Their Application To Malaysian Law', (2002) written by Mohamed Fadzli bin Haji Hassan. These contemporary studies focus on the application of public interest within the modem climate of shari a courts, Islamic criminal law and common law, suchas Malaysian Law.

Severalcritiquesof classicalstudieshavedealtwith the subjectof mallalia,Ùtility in Classical Islamic Law: The Conceptof Ma.Flalzain 'Ucl al-Figh', such as (1986) by Ihsan Bagby Àbdul Wajid. The research entitled `The Theory of AlMajlih Al-Mursalah In Islamic Law', (1990) by Juma Mikidadi Omani Mtupa was

found to be, verbatim or in toto in someparts,without acknowledgment from the book entitled,ÌslamicLegal Philosophy:A Studyof Abu Ishqal-Sh(ibi'sLife andThought', (1977) by MuhammadKaml Masìld.

A most up to date piece of research,Àl-Ijtihd: al-Nall, al-Wgf, alMaclaha', (2002) by Al mad al-Raysni, and Ahmad Jaml Brt, is classified as a broad principle in underlining the relationship between ijtfhd, nalc, wgi and maslalia. Furthermore,the latest book of Islamic law; Ìslamic Law; From Historical Foundations To Contemporary Practise, (2004) by Mawil Izzi Dien highlights the

9significanceof maslalia as à key tuner that harmonisesall sourcesof Islamic law and occupiesa central position in the formation of legal opinion and the interpretation of the legal texts'8. However, there is a vacuum in terms of detailed approach and analysisto the conceptof al-maslalta wa al-nafl and the presentwriter feels that such benefit from particular referenceto Qur'dnic evidenceor the Uadith in study would the analysis under the heading of al-maclalta wa al-nass. It is proposed that the current research entitled `The concept of al-Mallalta wa al-Nag with special reference to Kitb al-Buyu' in the book of Buliigh al-Marm', may go some way towards filling this vacuum. As far as can be ascertained,this kind of study has not been carried out previously, particularly in the field of usl al ;f iqh (Islamic jurisprudence).

Outline of chapters

This thesisproposes threepartsof focused within six relatedchapters. subject It is openedwith an introductionand closedwith a conclusionand somefurthersuggestions.

The introductionelucidates background the study,its purpose, the scope of limitation,themethodapplied,its literaturereviewandthe outlineof the chapters. and The partA consists threechapters. first chapter The the of examines definition historicaldevelopment the conceptof al-malalaa al-natl. This chapteris and of waconsidereda portal of thesis becauseits highlights the basic information regardingthe juristic conceptof al-ma. lalia wa a1-nalf.

8 Izzi Dien, Islamic Law, 69. p.

9The secondchapter of part A is classified a skeletonof this thesis becauseits highlights the theoretical developmentof the concept of al-maclalcawa al-nass. This discusses hypothetical form of the theory of maslalia over the legitimacy the chapter of nag and al-Tfi's theory. It also examinesthe views of Muslim jurists regarding the priority levels of ciarriyya and the theory of magsid al-shari a in connection with nass. The third chapterdealswith the significance of taClilal-alikdm for the concept of al-maslaha wa al-nag. It includes the process of talil al-ahkm from the legal texts of the Qur'an and the Iladith. The part B encompasses chapters.The fourth chapterhighlights the main two reference sourcesfor the books of Iladith. In this regard, there are sevenbooks of five of other reference sources for which they will be main reference sources and examinedin this chapter. The fifth chapter of part B focuseson the introduction to the book Bulgh alMarm. This chapter consists some sub topics such as the author biography,juristic featuresand compilation methodology.

The last part of thesis is part C that includesone analysischapterof the Ijadith. The sixth chapterentitlesKitb al-Buy ; the application the concept alof of 22 intendsto analyse sub ma. Flalta al-nail to the allfiith of al-Buy. This chapter watopics of chapteron businesstransactionswithin the number of the Hadith of 176. It is proved during the analysis that there are principles of public interest in the most of every single Hadith and its rulings regarding the juristic themes of business transactions.

10The conclusionhighlights an overall evaluation and analysis of the findings laid down in the previous chapters.The thesis then concludeswith some suggestions regarding further researchin the area of Islamic jurisprudence and the subject of the Hadith.

11PART A

THE CONCEPT OF Al-MASLAHA WAAl- NASS IN ISLAMIC JURISPRUDENCE

Introduction

to Part A

This part A aims to present the interesting development of al-Maslalla wa alNass through the history and theory of Islamic jurisprudence, and one of the major

discussionswill centre on the theory of priority of maslalia over the legitimacy of nass.

In order to analyse the preceding points in a juristic light, it is necessaryto in examinethe definition of the conceptal-Maclalta wa al-Nall, as expressed chapter one. In. conjunction with the defining approach, this chapter will also examine the

historicaldevelopment al-Mallaha wa al-Nall, with a view to elucidating value the ofto this conceptby Islamic jurisprudence. The theoretical developmentof the accorded lalia wa al-Nall will be debatedin chaptertwo. The core of part A concept of al-Ma.

is concerned the significance TaC1FlAitkm to the concept al-Maclaliawa of of with al in three.This will be followedby a summary al-Nags, which will be discussed chapterof the theory of al-Maclalia wa al-Nay, c.

12CHAPTER ONE

THE DEFINITION AND HISTORICAL DEVELOPMENT OF THE CONCEPT OF AL-MASLAHA WA AL-NA9

1.0 Introduction

In the first section of this chapter,the definition of the term al Maclalia wa alNass becomes a key note, important to this study in terms of introduction to the juristic discussion regarding its concept Incorporated is also a terminological discussion of the individual terms al-Maslalta and al-Nall in the light of Islamic

jurisprudence. The second section of this chapter examinesthe developmentof the of al-Maslalza wa al Nall over four eras in history, in order to evaluate the concept developmentof this conceptwithin the Sunni perspectiveof Islamic jurisprudence.

1.1 The definition of the concept of al-Maslalia wa alNafs

In order to present the definition of the term a1-Maclalta wa a1-Nash,the

definitions.The literal definition discussion be dividedinto literal' andtechnical2 willthe term al-Maclalta wa al-Nall, is comprisedof two Arabic words i. e. al Ma. Flalia of one Arabic letter, i. e. wa. The technical definition of al-Maclalia wa and al-Nall, and be referred to within the scopeof the elaboration and analysismade by al-Naas will

1 Lexically, `literal' is an to the original. b) adjective word which means, a) corresponding exactly the basic or usual meaning of a word or phrase. To comply with the term literal concerned with definition, maslalza will be given in the original meaning, which Muslim jurists' works have used lughatan is used, in Islamic jurisprudence. In many Arabic Muslim jurists' works, al-Tarif effectively which means `literal definition'.

SeeHornby,Oxford p.393. 2 The term `technicaldefinition' is in this chapterto indicate a large number of definitions made used by Muslim jurists regarding the technical terms of malajia. Many Arabic Muslim jurists' works use the term al-Tarif I. tilhan or al-Tarif Shar'an, which canbe translatedas `technicaldefinition'. SeeBaalbaki, al Mawric, p. 118

13Muslim jurists who were involved both directly and indirectly with the subject of Maslalta in conjunction with the legal text, Nass.

1.1.1 Literal Definition

In the framework of Islamic jurisprudence, many Muslim jurists have defined the word maslalaaon the basis of a literal rather than an etymological definition3. To Ab al-Husayn al-Basri (d.478/1085), maclahameans `goodness'and maclili means `good things'. He addsthat, in Islamic jurisprudence, the term al-malih al- shari a to the actions, which the individual is compelled to perform in Islamic law such refers cibda, (worship)4 Based on Zamakhshari's definition, maclalta is referred to as as ft maslili al-muslimin, which means:"he consideredthe things that were for na, -ara the good of the Muslim"5. Ibn Manzr and al-Fayruzbdidefine the word malalia as

liusnal-lil, which means: "the goodcondition".

It is thus evidentfrom the aforementioned that a sense goodis inherentin of the term masla1za that it alwaysrefers to humanlife, particularlyMuslim life. and Therefore,later Muslim jurists tend to define malajta literally as `benefit' or human ìnterest'?or ùtility's in conjunctionwith Shari a that is concerned with

3 Etymology is the study of the origin and history of words and their meaning. In etymological definition, the root of maslaha is becomes7i11: meansal-naf This is usedto indicate which and . that something,or a person,becomesgood, right and virtuous. In many Arabic dictionariessuch asAlQmsal Muli4 andMukhtr al4i, ili, the similar word maclalea al-. illi which is contrastwith the is à means',à goal' word alfarad meanscorruption and invalidity. In a rational sense, maslaha means and à causewhich is good'. For instance,a pen in the light of malalia is useful for writing. In this casea pen is a causefor the writing, which is referredto asmallalia. Seeal-Fayruzbdi, al-Qmus,v.i, p.277, al-Razi,Mukhtr,.p.448 andHornby, Oxford, p.393 4 Seeal-Ba$ri, Mu`tamad v..ii, p.888 al 5 Zamakhshari, Ass,v.ii, p.23 6 SeeIbn Maciu, Lisn, ii, 348 Op. v. p. and al-Fayruzbadi, cit., v.i, p.277. 7 SeeKamali,Principles, 267. p. 8 SeeIhsan, Utility, 10. p.

14welfare and justice as well as equity9.This definition concludesthe examination of the literal meaningof maylalia.

In the term al Maslalia wa al-Nash, wa is an Arabic letter that is called !turf catf, a letter which indicates a specific connection between two words1.One of the is yujid al jam 11,that is, to main functions of the letter wa in the Arabic language join two words together and form a relationship between them12.In this work, it is that the function of wa is to describema. presumed clalcaasbeing parallel with nasl or evenasbeing convergentwith it.

The word Naffs or Nupc generally means texts, script and provision13 In Islamic legal theory, Nas, refers to a legal text. The Qur'n has been termed a legal document 14as has the Ijadith which is the second source of Islamic law after the ,

Qur'an. As a result,both the Qur'dn andthe Uadithare classifiedasNaasand formthe primary sourcesof Islamic legal theory. Muslim jurists unanimously acceptNall

by asvalid andaccredited the legalsources Islamiclaw. It hasalsobeentermedthe of .. Quranic legislation,15ofwhich the ProphetM4ammad s.a.w was the founder;it beinginitially appliedduringthe time of MeccaandMedina.In addition,Nall is alsoknown as dalil, 'evidence' or 'proof' nd nagl16,'transmitted', terms that are common in juristic discussionon the subject of Islamic law. In summary,the literal definition of the word Nall refers to the primary sources, either the Qur'n or the Hadith

9 Bakar, The Discernment, 103. p.

lo SeeBaalbaki, Mawrig p.767. al 11 Ibid. 12al-Dakar,Mu`jam, 542. p. 13Qalahji andQanybi,Mu`jam, p.480. 14 Hallaq,A History, p.7. is Coulson,A History, 9. p. 16al-Azhri, Tahdhib, ix, 151. v. p.

15wherein are contained a dalil, a nagl, a legal text and a legal document for Islamic

law.

1.1.2 Technical Definition

As a study of maclalca is one of the main objectives of this work, it is important to examinethe definition of the term maslaha in conjunction with nass.As a starting point, al-Ghazli claims that the term maslalta itself has no single standard definition'7. This is partly due to the term itself; the meaning being sometimesvery Due to this ambiguity, clear, sometimesless so and sometimescompletely absent1s. the term has received a great deal of attention from many jurists. The views of a representative these have been chosenas sourcematerial for this work. Al-Ghazli of maintains that in general, mallalta is an expressionfor seeking manfa"a (something

indicating the removal of maciarra (something useful), whilst simultaneously harmful). Juristically, he definesmaglalzaas the preservation the magsd,an of five issues, e. the preservation i. the shari a which is concerned of objectiveof with life, intellect,lineageandproperty"19.In conjunctionwith nass,al-Ghazli religion, definesmutabaraas a type of mallalta that has textual evidencein favour of itsis therefore valid and utilisable as a legal principle for consideration, and which Moreover, Fakhr al-Din al-Rzi (d.606/1209) emphasises that ma. lalia is very giys20.

àffinity with a strongfeeling of closeto munsiband munjaba,which suggests

17 a1-Ghazli, Mustasfa, v.ii., p.72. al 18 Bakar, Op.cit.,p. 102. 19al-Ghazli,Op. cit.,, v.i, p.286-287. 20Ibid, 284 p.

16interest'21.Al-Rzi also claims that God's commandmentrevealed through the text has Therefore, he claims that God's commandment no `flla, coincideswith magla)a. ( ratio legis) and it is wrong for jurists to searchfor andjustify the ìlia behind it22. To al-Shlibi, maylalia means magsd23, likewise, al-Ghazli's point of view asserts that maylalia was the foundation of the theory magsid al-shari a24.Moreover, in that every specific injunction of the collaboration with nass, al-Shatibi maintains Qur'dn and the Sunna has a `specific' purposeor rationale or ìlia that contributes to At the achievementof `general' purpose,magsid al-shari a2S. this stagemallalia is ìlia regarding the revealing of God's commandmentto humans in the parallel with senseof malalia.

Ibn "Ashur undertakesa particularly close study of the terms al-Maglaha alQaiiyya and al-Macla)aaal-Janniyya26 which is valuable as a technical definition of

in accordance He asserts al-Majlalia al-Qaf iyya meansany that maslaha with nass.particular common good in the light of a definitive legal text, therefore no interpretation or ta'wil can be madeof it. For instance,the existenceof al-Mallalla al-

Qaf iyya on the subject of the pilgrimage which is obligatory for those who arecapable of performing it27, is made clear by the definitive nag of the Sara '1i Imr7n:9728. The senseof malalta exists'in this particular form of definitive nag and

21al-RAzi, al-Mahfl, vol.ii, p.218 22 Ibid 23al-Shtibi, Mvwfagnt, v.ii, p.25. a1. 24Hassan, Studies, 138. p.Zs al-Shlibi, Op.cit., p.322.

26SeeIbn Ashr,Magsid, 168. p. 27al-Kamdli,Min Figh,p. 12. 28The full translation of Sra Ali cImrn 97: "In it (for example),the Magm : are manifest signs; (place) of Abraham;whosoever enters it, he attains security. And flatj (pilgrimage to Mecca) to the (for one's house (Kafba) is a duty that mankind owes to Allah, those who can afford the expenses [i. conveyance, and residence);and whoever disbelieves e. deniesHajj (pilgrimageto Mecca), provision then he is a disbelievers Allah], then Allah standsnot in needof any of'Alamin (mankind,jinn and of all that exists)".

0

17is exemplified by Sara '1i Ìmrn:97, which concernsthe condition of performing that is obligatory for those Muslims who are capable of it. Here, the pilgrimage tnaslalaais absolutely definite, and there is no room for reinterpretation or ta'wil, particularly regardingthe condition of performing pilgrimage.

Notwithstanding al-Maslal:a al-Qa(iyya as a definitive nan, the term alMaslalta al-ZannTyya has been defined technically by Ibn Ashr as any particular common good achieved by non-definitive nasq and through the process of legal For reasoningon the basis of assumption,?anniyya29. example,the Ijadith, 'no judge be judging when he is angry 30is taken from authoritative sources such as should Saldh Bukhri and Faltig:Muslim and the existence of al-Maclalza al-Zanniyya is inherent in its content, which is concernedwith improper acts of judgement such as undertakenwhen angry. A secondexample of the processof legal reasoningon one the basis of assumption, is the use of dogs to guard the homes of townsfolk who 31. The point of in dangerouslocations such as Qayrawan,a town in Tunisia resided in this case is the Islamic ruling regarding the keeping,of al-Maslalla al-7anniyya dogsby al-liadar (the townspeople);an action that most Maliki jurists disapproveof. As al-SheikhAb Muhammadb. Abi Zayd had a dog in his house,he claimed that if Imam Malik himself knew how dangerous situation was, he would certainly have the lion guardinghis house32rather thanjust a dog. a

Seeal-Hilali, The Translation,p.86 29SeeIbn 'Ashur, Magsia p.168. 30Thetext the Hadth: of r' ! U i1.3 xu a2l ilaj : X111 41 J. ;j aL. LO :: p j 'tt,44 j v_: W-A UL. This Hadith narrated by Bukhri, Sahih, no: 6625 and Muslim, $aliih, no: 3241.

31SeealNad wi, al-Qawaid, p.359. 32Seeal-Kamli,Min Figh,p. 14.

18Later jurists have offered a comprehensivedefinition of the term al-Maslalza Ahmad al-Raysni defines it as the interaction betweenthe concept of wa al-Nan. al Maslalaa wa al-Nass (in Arabic; al-Tadmul al-Maslahi maà al-Nuss)33.He

that every single nusiis and its ruling is intended to fulfill the macdlili emphasises concerninghumanity in seeking something useful (manfaà) or removing something harmful (mafsid) from their lives. In order to clarify the interaction between the of ma.lalia and najc, Ahmad al-Raysni presents the following three concept methods: (a) the criteria of nassin determining the existenceof maslalca. Al-Raysni insists that belief in nasj meansbelief in its supremacyand this leads to the fundamental principles such as justice, mercy and maylih, for as Allah states; "And We have sentyou (0 Mu&iammad) but as a mercy for the " lamin (mankind, not jinn and all that exists)", 21:10734. This verse indicates directly that the ultimate aim in sending the Prophet Muhammad was an act of mercy to the `lamin, which is connectedwith the subject of maclilc.Moreover, he supportsIbn Taymiyya's view

that mostof the principlesandactivitiesin Shari a that takeplacein the light of nalc directedtowardsachieving conceptof masdl In conclusion this point, he the ilz. of areclaims that most null have basic criteria that are employed to determine the value and the types of maslai!a35. (b) the interpretation of maslalta from nusf. According to al-Raysni, the interpretation of maslalia from nu. c involves the y. analysis and study of seeking the magdlid, that is, the objective of Islamic law, by means of nusc. This methodology entails an examination of every single Islamic ruling in nusc,and its interpretation in conjunction with the conceptsof magfid and33al-Raysni, 4 p.49. al-Ijtih 34See al-I ilali, The Translation, p.441. 35al-Raysni, Op.cit., p.50-52.

19maslaha.He addsthat by using this method, the hypothesisthat èvery single Islamic is in accordance the maclajta' can be provenjuristically36 ruling with (c) the implementation of maslahathrough nuls. This method is a consequence of the preceding one, whereby following the interpretation of maslalta from nuss, the implementation of maslalta must be undertaken.It is significant to note that the basic paradigm for the implementation of is valuable in forming an analysis of the method employed by the Prophet maclaha and his companions.To simplify, the Sunna-cum-Iladith is the best example of the implementation of maclalta through nucs. Al-Raysni claims that there is much to prove how the Prophet implemented the concept of maclalia during his evidence lifetime. Therefore, the study of Sunna or Hadith, with special attention paid to the elucidation of the concept of ma.laha, is valuable in terms of the analysisof the basic in the implementation of maclaltathrough nul,c37. principle

The preceding methods proposed by Abmad al-Raysni indicate a basic

foundationfor the technicaldefinition of the term al-Maclalta wa al-Nall. These methods alsobelievedto further developthe elaboration the form of mallalta are ofis consideredto be a fundamental principle for mallalia in dealing mu`tabara, which with na..c.

In conclusion, the definition of the term al Maclalia wa al-Nall from the various aforementioned perspectives, is clarified by the following indicator which shows a framework explaining its concept This model depicts the initial parallel

natureof maslallaand nalc, which becomes convergence the point wherea legal at a36Ibid., 53-54. p. 37Ibid., 55-58. p.

20principle is formed. At this stage,firstly, the subjectof maslalta has been discussedin the subject of magdcid,villa, ijtihd and àgal. Secondly, many ways as parallel with the subject of nasshas also been discussedin many ways as parallel with the subject of the Qur'an, the Sunna, qaf iy and zanni. Meanwhile, both of these subjects i. e. maslalta and nass are also in many ways have been examined as parallel with each others.Eventually, these two subjectsbecomesa convergenceat the point, which is as maslahamutabaraor the accreditedvalidity of the legal principle in Islamic called legal theory. In order to elaborate the connection between the legal principle of maslalta muitabara and the concept of al-Maclalta wa al-Nall, thus, this section will proceedto examine how the concept of al-Ma. lalia wa al-Nall has been developed through the history of Islamic legal theory.

AI Maslaha (al-Magdlid), ('illa), (Ijtihd), CAqao PARALLEL Al-Na,g 4 (Qur'n), (Sunna), (Qaf iy), (Zanni) (mglaha mu`tabara) THE LEGAL PRINCIPLE IN ISLAMIC LEGAL THEORY

CONVERGENCE

1.2 The Historical Development of The Concept of al-Maclalia wa al-Nag

Scholars,particularly those from the Sunni school, have referred to thethe historical development of this concept. Many Muslim jurists have existenceof stated that the early development of the concept of al-Maclalta wa al-Nall commencedduring the life of the Prophet and then continued into the time of the

khulaf' al-Rshidn (Rightly GuidedCaliphs)from 11H1632C. to 40H/660C. E38. E

39SeeE1, (art. Khulafa' ), vol.iv:IRAN KiMp. 937-957

21Accordingly, the concept of ma. lajta emerged during the period of the Umayyad E Empire, particularly under the caliph of 'Umar b. Abd. Aziz (991V717C. to 101H/720C. and then continued into the beginning of the secondand up until the E)39 eighthcentury of Hyra4o.

1.2.1 During the life of the Prophet s.a.w

To many later Muslim jurists, the existenceof maslalia during the life of the Prophetconstitutespart of the form of ijtfhd, although he himself was the expounder of the Qur'dn and the living source of Islamic law41.When the Prophet neededto (particularly during the time lapse between solve a problem or answer a question Indeed during his the form of ytihd always occurred42. revelations), maslaha as lifetime, there were many events and casesthat set precedentsrelating to the subject of maslaliaand thesecould be obtained from various authenticIladith.

The processof appointmentto leadershipduring that era offers a clearIn the caseof two men who intended to the subject of ma. examplepertaining clalta43. to becomerulers of some lands, the Prophet rejected their request,saying; `By Allah, we do not appoint to this position one who asksfor it nor anyonewho is covetousfor

in Paradoxically, the caseof Ziyad b. al-Iirith who requested the same'44. authority45 to becomea leader,the Prophet agreedto appoint him as leader of the tribe of Sd .

39

al-BUti,

Dawbit p. 314-315.

40 Ibid. Studies, 41Hassan,

p.138. 41a1-Sha Op.cit.,p.14. ibi, 42al-Amidi, al-Ihkm, iii, 140 v. p. and al-ìywni, Ust, 15. p. 43al-Raystini,Op.cit.,p.55-57. 44Muslim, Sahih, Kitb in al-Ìmdra, no.:1083.

22

Ibn Qayyim does not perceive any paradoxical nature between these two cases,since they reveal the permissibility of requestingleadershipfrom the Prophet on the basisof the capability of the applicant.He addsthat the former application was for rejected as it was basedon irrelevant criteria such as over-enthusiasm leadership, Iarith to be a good whereasthe latter was accepteddue to the ability of Ziyd b. a1-}; leader for his tribe. Ibn Qayyim assertsthat the Prophet s.a.w applied the concept of maslalzain thesetwo cases.In the first, the rejection was partly due to masla,za as it removed the potential harm of over-enthusiasticleadership from the appointment, in the latter case,the acceptancewas partly due to ma. a as it relied on whereas Fla! leadership,such as those possessed Ziyd b. al-Harith 46. by seekinggood qualities of

The precedingillustrations clearly indicate that the Prophet s.a.w was the best in implementing the conceptof maslalcain the light of Islamic principle and exemplar thus, 'demonstratewhy his actions in life are also regarded as primary sources of

Islamic law. This instanceforms a precedent Islamic jurisprudence, in particularly with referenceto the development the theory of ma.lalta in conjunctionwith ofhadith-cum-sunna, both are classified as nalc. as

1.2.2 During the period of the Khulayla' al-Rshidn

Subsequentto the death of the Prophet, the Khulafa' al-Rshidn (Rightly Guided Caliphs) took over the leadership of the Muslim nation for 29 years, duringy "' 'A: iii tai 4p ie uU v v'1'w -daiJAU l'. ti as Ibn Qayyim, Za4v. iii, 668. p.

cC Qj7A

c t' 4., zu 4 cri . V`jl'C+ ii U U1 j

cri

'uc v i;j kS ur .. i?! 'f :Ilt L". i

v7c

Liy. ( ! 29 Jrr

46Ibid

23 which time the application of maslalta was increasingly effective. The main factor responsiblefor this was probably the rapid and vast expansionof Muslim territory and the multicultural nature of the Muslim world47.In order to solve many challengesand problemsduring that period, ma. as the form of ijtihd took place in conjunction Flalia with the legal principles of Islamic law. Indeed there were many casesand events in the period of KhulaJa' al-Rshidn, which exemplify the application of maslalaa.Examples of these are as follows;

The codification of the Qur'an that began in the period of Ab Bakr (1111/632C. to 13H/634C. was due to the `death reciters' of the E E) Qur'an, particularly in the war of Yamma.After Ab Bakar's death, the the Qur'an was continuedby Umar as the secondcaliph48. codification of ii. The decision to wage war against Musaylamah al-Kadhdhab and his followers who refusedto pay zakahin the period of Abu Bakr9. In the period of Umar (131V634C. to 231V644C. it was declaredthat E E), a divorce would be valid if a man three times proclaimed his wife to be divorced. Umar's justification for validating this type of pronouncement was basedon the rising social problem of men misusingthe privilegeso The decision to reversean application of liudd, prescribedpenaltiesin the caseof servantswho stole a camel in the period of Umar, as the theft was due to a year of starvation51 The introduction of a standardcopy of the Qur'an was later namedmulltaf Ùthmni in the period of Uthmn (23H/644C. to 35H/656C. E E). Introduction of the mucltaf Ùthmni was due to the differences between the people of Shamand Iraq in the recitation of the Qur'an52. In the period of "Ali (35H/656C. to 40H/660C. the introduction of the E E), for drunkenness punishment was equatedwith that of the punishmentfor gadhaf, false accusationof adultery. This was based on the premise that drunkenness might lead a personto make suchan accusation,and therefore it should merit the samepunishment"

iii.

iv.

v.

vi.

47Iassan, The Early, 15. p. 48Bukhri, SahTh, 6, 183. v. p. 49Zubayli, Figh,, ii, 764. al v. p. soIzzi Dien, Maslaha, 346. p. sl Bayhaqi, Sunan, v. viii, p.278. sZIbid, 5, 510. v. p.

53al-Shdlibi, al-ftism, p.334.

24

The abovecasesform part of the judicial processtowards the implementation of Islamic law within the concept of maclalia, which became classified as Utihd during the period of Khulafa-' al-Rdshidzn. the caseof i, ii, iii, and v in particular, In the preservationof religion was clearly the objective, whereasin the case of iv, the preservationof life for the starving who stole the camel becamethe judicial reasonfor In reversing the punishment of leuddS4. the case of vi, the preservation of intellect becamethe judicial reasonfor the punishmentof drunkenness being equivalent to the punishmentof qadhaf. As Imm al-Shatibi asserts,the preservationof religion, life, intellect, lineage and property were being offered as a basis for majlalla-cumIn magsidss. addition, later Muslim jurists concur that at the time of KhulaJa-'alRshidn, the companionstook an inherently rational and comprehensiveapproach towards the implementation of Qur'anic law and the Sunna, whereby the

circumstancesand surrounding factors were always considered as vital elements in the application of Islamic law56.

1.2.3During the time of caliph Ùmar b. Àbd. CAziz

The development the conceptof maclaltain particular,and in connection of with nail, beganduringthe period of tabfan, (followers);underthe caliph 'Umar b.Abd. Azsz(99H1717C. to 101H/720C. 57in the dynasty of Umayyad. During this E E) era, many jurists considered that the majority of applied government policy was in54 lbid, p.332. 55 Ibid, p.332. 56 Kamali, Figh, Iywni, U4l,p.21-30; al-Asygr, alp.66; al-Durayni, al Manhy, p.33; a1= Shari a,p. 14-15. s' cUmarb. Abd. Aziz b. Marwan b. al-Hakam, Abu Hafs al-Ashadjdj, fifth caliph of the Marwanid branch of the Umayyad dynasty reigned 99H171C. to 101H1720C. See El, (art. 'Umar b. Abd. E E. Aziz), vol.X: T-U,p.821

25accordance with the concept of mallalia. According to Said Ramadanal-Bti, caliph Umar b. Abd. AzIz was among tabfn who had applied the concept of maclaha or istillah through his policy. For example: i) Giving back the right of people who were treated as victims of injustice by the caliphs before him58. Al-Bild states that caliph 'Umar b. CAbd. Azsz expended most of his efforts onreturning rights to innocent people. Such a policy was not applied during the period of

the Prophets.a.w and the policy itself has no referenceto Islamic sourcessuch as the Qur'an, the Sunna and QiysS9.Caliph 'Umar b. Abd. Aziz's course of action reflects the concept of ma.lalta or istislah, which upholds the preservationof life and property in particular and it is undertakenfor those who were treated as victims of injustice by the previous caliph60.Al-Tabari quotes the following sermon given by 'Umar b. Abd. Aziz to the people in Khunasirah.It revealshis policy to be in caliph accordance with the application of maclajta61: "Whenever we learn that one of you needssomething,I try to satisfy his need to the extent that I am able. Whenever I can provide satisfactionto one of you I out of my possessions, seekto treat him as my equal and my relative, so that my life and his life are of equal value".

ii)

The codificationof Hadith, its transcriptionand the creationof itsrules of narration62.

'Umar b. Abd. From the perspective mulaaddithin(scholars Hadith)63, of of caliphAziz was a pioneer; being the first to issue definite ordersto Ab Bakar b. Haim, the caliph's governor at Medina and to other centres,to the effect that codification and

58al-Bali, 4Aiwbi;, 314-315. p. 39lbid, 315. p. 60 Ibid 61al-Tabsi, Trikh, vol. xxiv, p.99. 62al-Sibdi, p. al-Sunna, 104. 63Suhaib, Introduction, 5. An p.

26Hadith should be prepared officially64 cUmar b. Abd. Aziz written collections of informed them thus: "See whatever saying of the Holy Prophet s.a.w can be found, and write it down, for I fear the loss of knowledge and the disappearance the learned of men; and do not accept anything but the Uadith of the Holy Prophet s.a.w.; and should make knowledge public and should sit in companies,so that who doesnot know should come to know, for knowledgedoesnot disappearuntil it is concealedfrom the public"65. His policy contained fundamental reference to the preservation of religion, specifically with regard to the authentic IHadith of the Prophet s.a.w., as well as the Qur'an, as a primary source of Islamic law66.To some extent, this policy resulted from the appearance and movement of Muslim sects such as Qadria and Khawdry believed to representinvalid and non-authenticHadith as being traceableto who were In the Prophet67. order to avoid suchmisrepresentation and to securethe authentic and Iiadith, the implementation of this policy was necessary and in authoritative

At this stage,there is clear Islamic legal principle i.e. ma. accordance with ylalta .the application of maclaha as a tool of Utihd within the policy of '-Umar evidenceof b. Abd. Aziz. This may be referred to as the starting point of the developmentof the conceptof malalta in connectionwith nafl.

1.2.4During the Abbasid dynasty

After the fall of Umayyaddynastyin 1321V750C. the Abbasiddynasty E, tookE over Muslim territory for more than five hundred years, from 132H/750C. to 656H/1258C. E68. Philip K. Hitti refers to this era as `the golden prime' of the

64 Muhammad, Collection,p.33. 65Bukhari, $ahih, 1 (k.3,b.34) v. "a1-Bxi, 4 awbit,p.316. 67 Ibid 68Eli (arL cAbbasfd vol.!: A-B, 21-23 ), p.

27Abbasid, which enduredfrom 750C.E to 833C. 69 This metaphorically golden time E the growth of Islamic knowledge such as fiqh and uc1fiqh; juristic witnessed its status developmentsthat encompassed discussionof the concept of ma, clalaaand within the legal text.

To someextent, the simultaneousemergenceof the four Sunni schoolsof law offered an environmentthat was conducive to freedom of opinion and thought. Most of the Abbasid caliphs encouragedthis and the prevailing climate has contributed indirectly to the developmentof the conceptof maclal:a and its connectionwith nag.

Though the term al-Ma. lalza wa al-Na. c was not in existenceat that juncture, it is theorised that juristic discussions regarding the application of giys, Um, istihsn and mallal: a mursala, and their connection with the primary sourcesi. e. the Qur'dn and the Sunna, indeed contributed to the development of the concept of alMa. claha wa al-Nash. Therefore, the following discussion attempts to prove how the

juristic discussion methodologies thosefour Sunnischoolsof law haveinfluenced ofof the conceptof al-Maclalla wa al-Nass.

1.2.4.1 The Hanau School of law

The Ilanafi School of law or Tariga al-Hanafiyyin was named after Ab Ilanifa70,the eponym of the ancient schools of Kufa and Basra71. The Kufa school of law hasbeendepicted as rationalist or AN al-Ray' due to its flexibility of approachto69Hitti, History, 2 97. p.

70Imam Abu Iianifa's full Numan b. Thabit He was born at Kufa, Baghdadin nameis Aba Ijanifa a1 . E the year 80H/699C. and died in 150H/767C. E. Ab Zahra,Ab Hanfa, p. 15. 71E2, (art. Hanafiyya), H-IRAM, p. 162. vol.111:

28the interpretationof the text and to the application of Islamic law. Thesephenomena the existing environment; Kufa being a centre in which Arabs are consequences of non-Arab Muslims were in intimate contact. Hence, Muslim scholars at Kufa and the needto accommodate this environmentand to apply the Islamic were consciousof in accordance the primary sourcessuch as the Qur'dn and the Sunna72. principles with

In the IHanafi school of law, Qiyds and Istiltsn(juristic preference) were formulated as secondarysourcesof Islamic law and these have similar attributes to According to Hashim Karnali, Ilanaft jurists tend to define the conceptof maclaha73. Isti#sn similarly with giys that consists of a departure from giys jali (obvious to giys khafi (hidden analogy), which is closely connected with ray analogy) (reason) and analogical reasoning74. Hussein Hamid Hassan adds that 1stilisn will in only prefer the benefit of people75 accordancewith Qur'anic principles, such as alZumar,'39:18 and 55: Ànd give good tidings to those of my servantswho listen to the word and follow the best of it [ahsanahu]. Those are the ones God has guided and endowedwith understanding'.

'And follow the best [alisana]of what hasbeensentdown to you from your lord'.In conjunction with the Qur'n and the Sunna, Hanafi jurists insist that Isti{ssnin

is conformed the primary sourceof Islamic law and far removedfrom by particular, biasandthe like76. is interesting notethat Ijanafis have It the elements prejudice, to offormulated the category of al-Istillsn bil-Nag in order to link the connection

between Istihsnand nassand to revealhow Imam Ab IIanifa himself appliedthe72Ab Zahra, 165 and Coulson,A History, 50. p. p. 73Kamali,Istihsan, p.37. 74Kamali,Principles, p.254. 75Hussein, Nazariya, 587. p. 76 Ibid

29interpretationof Istiltsn from the nass.An exampleof this can be understoodfrom a Iladith relating to the subject of obligatory fasting77. According to Ab Hanifah, if an individual takes food or drink while fasting becausehe/shehas genuinely forgotten, then the fast is still valid78.Here, Abu Hanifah's judgement is in accordance with the Hadith of the Prophet, wherein he stated, `continue your fasting (in caseof eating or drinking due to forgetfulness) becauseAllah the Almighty gave you to eat and to drink'79

From the Ilanafi perspective, the juristic method applied in this case is referred to Istilisn, which gives a preferenceto the benefit of Muslims, on the basis To that it is connectedwith the primary sourceof Vadith80. someextent, this example signifies that Istilisn and Qiys have been applied as secondarysourcesin Islamic law, particularly by Hanafi jurists, in order to give benefit and preferenceto Muslims.

This notionis intertwined of with the concept maclalza81.

The precedingdiscussionrevealsthat the Hanafi school of law has formulated

the basicdevelopment the conceptof al-Mallalta wa al-Nag, althoughindirectly, ofthrough the application of Istilisn and Qiys to Islamic legal theory that aims to benefit Muslims. In conclusion, as the first established school of Islamic law, the

IIanafishavecontributed fundamental ideasto the development the conceptof the of that was to be furtheredby the Maliki schoolof al-Maslaliawa al-Nafl; a processlaw.

77Kandahlawi, Huj/a,v. 1,p.161. 78 Ibid 79 Ibid 80 Hussein, Nazarrya, 589. p. 81 Karnali,Istihsn, p.37.

301.2.4.2 The Mliki school of law

The Mliki school of law, known as Ashb al-Hadith, the `traditionalist' school and also the Medinese school of law, was centred in Medina. This remained the focal point of intellectual activity and the capital of the Islamic empire during Khulaf-' al-Rshidn until caliph "Ali b. AbT Tlib moved to the city of Kufa in Iraq82.Since Imam Mlik83 spent all his life in Medina, some 84 years, he was later known asthe Imam of Medina, Ddr al-Hyra84.

The Mliki school of law hasbeen depicted as taking a traditionalist approach, particularly with referenceto the book of al-Muwa((', the first work compiled and by Imam Malik himself. The book pertains to the subject of Islamic law in written with the Hadith (tradition of the Prophet) and the prevailing traditions and accordance It the companions85. is interesting to note the conclusion drawn by practices of Macdonald regarding the Mliki stance, which reveals that both traditional and

Accordingto Macdonald, ImamMalik's Muwalld' rationalapproaches assumed. werehad applied a rational sense decide the authentic Hadith and its conformity with the to

principleof the Qur'an andparallelwith the needs the people86. of

2 Hajar, Tahdhib,, p.6. Ibn v.x, 3 Imam Malik's full name is Malik ibn Anas ibn Malik ibn Amir ibn al-Harith ibn Uthmanal-Asbahi al-Himyari, Abu Abd Allah.The date of his birth is not known; the dates given, varying between 90 E, and 97H1708-16C. are hypotheses; which are presumablycorrect. However, it is commonlyaccepted E that he was born in 94H/712C. and died at the age of about 85 in the year 179H/796C. in Medina E andwasburied in al-Bagi. SeeIbn Hajar Op.cit., E2, (art. Malik b. Anas ), vo1. MARK-MID, p.262-263., Ibn Abd. al-Barr, VI: , al-Tamhid, i,p.84., Zakariyya,Awjaz,v.i,p. 19. v. 84a1-Zirikh,al-I'Idm, v.vi, p. 128. ssIbn Abd. al-Barr, al-Intig', p.20. 86 Macdonald,Development, 99. p.

31The main features of the Mdl ik! school of law are the recognition of thepractices of the people of Medina (Àural AN al-Madina) and al-Maslaha al-Mursala as the secondary sources of Islamic law, apart from the Qur'n, the Sunna, Qiyas, Qawl al-Sauabi (the views of the companions), al cUrf wa al-'Ada (custom), Sadd alDhard'( (prevention of presumably a bad thing), Istillib (continuance) and Istilzsan

(juristic preference)87.

According to Ajjj al-Khatib, Àmal AN al-Madina or the practise of the people of Medina becameone of the main features of Imm Mliki's legal theory88. After the Qur'dn and the IHadith as primary sources, Malik gave priority to the preferencesof the consensus the people of Medina in determining the quality of of Al-$bni claims narration and transmission of the Hadith by any given person89. that Imam Mlik's view in this regard was due to the practical heritage of the Sunna that was undertakenby the people of Medina90.To some extent, the Mliki school of law recognisedand endorsed'Amal Ah! al-Madina as one of the sourcesof Islamic

law, in accordance the principlesin the Qur'n andthe Sunna91. with

Maclaha Mursala is known to be favoured by the Ml iki school, as an independent in Islamic legal principle92. ThoughImam Malik himself did not tool defineandelaborate concept Ma. lalia Mursala,it is believedthat his disciples the of andin particularIbn Qsim,had studiedthe Muwa((' andclaimedthat the notion of

87 Ab Zahra,Ab Hanifa, p.257. 88 a1-Kha#ib, Mukhla.Far, 126. ai p. 89 Ibid 90al-$buni, Muhaclara, 195. p. 91Dutton, TheOrigins, 9-10. p. 92Ab Zahra,Mlik, 368. p.

32Maclalia Mursala was originally referred to by Imm Mlik93.Al-Shtibi claims that Maslaha Mursala is an independentIslamic legal theory in the Mliki school of law, hasneverbeen employedin contradiction with the principles in the Qur'n nor which He the Hadith94. addsthat in elaboratingMaslalta Mursala as an independentIslamic legal theory, it is always in accordancewith the ultimate objective of Islamic law. Imam Malik applied it to a number of casesin al-Muwa(t' as well as in the record of his opinions entitled al-Mudawwanaal-Kubra95.

Imam Malik applied Maclalta Mursala to many casesin Islamic legal theory, but only within the domain of transactional laws (mucmala). He abandoned its application in the area of worship (ìbdda) becausethis spheremust accord with the the Lawgiver96.According to Abn Zahra, Imam Malik has considered prescriptionsof the rational role of human intellect in transactional acts, thus, the application of Mallalia Mursala fits more obviously in mu`mala rather than ìbda, wherein the role of human intellect is very limited97.

The following case portrays the significance of Maclalta Mursala as an independenttool in Islamic legal principle. Malik's Mudawwana outlines a situation

insteadof the whereby motherwasgivenguardianship her daughter's a over marriage father,because appeared carevery little for his daughter98. Accordingto Ibn he to Rushd,Imam Malik shiftedthe responsibilityof guardianship from the fatheron thethe girl's interest. She was living with her mother due to groundsof consideration of

931bn Abd. al-Barr, al-Intig ,

94 al-Shatibi, alJJti im, v. ii, p. 132. 951bid

96 Ibicl 97Abil Zahra,Mlik, 104. p. 98Zakanyya,Awjz,v.ix.p.278.

33her parentsbeing divorced". Imam Malik perceivedthat the mother should have the privilege of guardianship in her daughters' marriage on the basis of Mallalta

Mursala, since there is no specific textual ruling to imply the necessity of male guardianshipin order to validate a marriage10.

The preceding case reveals that the Mal iki school of law has developed the concept of maslaha through the form of Maslalia Mursala. Although the concept of Ma.FlahaMursala has no connection with the existence of Islamic legal principle in the Qur'an and the Sunna, the former has always been legislated by Muslim jurists without contravening the text At this stage, the development of the concept of in connection with nass, such as the Qur'an and the Sunna, deals with the maclaha condition that the former must contain no contradictory principles with the latter in terms of validity. In, addition, it is worth noting that al-Shtibi was a leading Mliki instigated a systematictheory of the concept of mavlalta through his scholar who valuable works. A detailed discussion of this will be offered in the separatetopic

Development the Concept al-Ma.lalta wa al-Nall'. entitled`TheTheoretical of of

In conclusion, Mliki schoolof law has introducedthe form of Mallalia theMursala in which has no connection with any legal principles that source in the

Qur'n andthe Hadith.Regarding by this, somefactorshavebeendebated the Shfli school,established the third schoolof Islamic law. The subsequent as sectionwillexamine the development of the concept of al-Maglalia wa al-Nall from the Shfli perspective.

99Ibn Rushd,Bidya, ii, 9 v. p. tooJaziri,Kilb, iv, 27. v. p.

341.2.4.3The Shoi school of law

Also referred to as a traditionalist school (Ahl al-Hadith), the Sh i school of law has been depicted as containing scholastic theologians (al-Mutakallimn), those who adheredto God's text and the principles related to Divine commandmentslol Imm Shflf102was eponym of the Shfli school of law, and as Khadduri claims, the he was the first to lay down systematic legal reasoning in Islamic jurisprudence Imam Shft'i was a greatjurist who played a through his valuable work the Risla103. in Islamic jurisprudenceby resolving the conflict of approachbetween significant role the Mlikis in Hijaz and the Hanafis in Irag104 Therefore, it is presumedthat Imam Shfi i's Risla was born in response the conflict betweenboth schoolsof law and to it was actually written at the,requestof Abd. Rahmanb. Mahdi (d. 198/813),a leading traditionalist in Basra, in order to explain the legal significance of Islamic law in with the Qur'an and the Sunna'5. accordance

Accordingto Ibn IIajar alAsgalani, Imam Shffi composed treatiseon two bothbeingreferredto asal-Risla106.is believed the first Islamicjurisprudence; It that is book of al-Rislais known as the old Risla, composed Iraq; whilst the second in 107. known as the new Risla, composed Egypt Majid Khadduri claims that very in little is knownaboutthe formercompared the latter,dueto the text of the former with11 (art.al-Shari ), EZ, vol.IX: SAN-SZE,p. 133. 102 Imam Sh[]fi's full nameis Ab Àbd Allah Muhammadb. Idas a)-'Abbasb. Ùthmnb. Shfi'i b. al-Sa'ib b. Ùbaydb. Abd Yazid b. Hashim b. al-Muttalib b. Àbd Manaf b. Kusay al-Kurashi.He was born at Àsgalan,Palestine,in 1501767, year of the deathof Ab Hanifa. He died on the last day of the Rajabin the year 204IV820CE in Cairo, Egypt. SeeAbd Zahra,al- Shfici,p. 15. 13 Khadduri,Islamic,p.4.104 Ibid., p. 8.107 Ibid

105 al-RAzi,Tagdmat, p.250 See 106 Hajar, Tawr 77 Ibn p.

35having failed to reachus, thus, it is difficult to define and elaborateprecisely its scope The first section of the new Risla, is mostly concernedwith the and arguments'8. superiority of the Qur'an and the Sunna as primary sources of Islamic law. As a leading Muslim jurist of his age, Imm Shffi denoted the systematicapproach of dealing with the Qur'n and the Sunna in accordancewith Islamic jurisprudence in which h

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