Where analogy needs a textual case to reason from, unstated benefit needs only that a ruling serve a purpose the law as a whole is directed at and that no text forbid it. Maliki jurists developed it furthest, which gave the school room in matters the sources do not address at all. Shafii theory refuses it as an independent source, holding that a benefit not indicated by the texts cannot ground a ruling, though it admits benefits the texts do indicate. The device became important again in the nineteenth and twentieth centuries, when Sunni jurists faced questions, from paper currency to public health law, that no classical case resembled closely enough for analogy to reach. Its critics have always said the same thing about it: that a jurist who can identify the public good without a text can reach any conclusion he likes.
Facts
Status
Status Within the TraditionThe teaching of one school or lineage within the tradition 1Tradition: Sunni Standing as a Comparative CategoryA standard analytic category in the study of religion 2 Doctrinal Category Current StatusThe device became important again in the nineteenth and twentieth centuries, when Sunni jurists faced questions no classical case resembled closely enough for analogy to reach. 2 Doctrinal category (class) Attestation
Meaning in the Attesting SourceWhere analogy needs a textual case to reason from, unstated benefit needs only that a ruling serve a purpose the law as a whole is directed at and that no text forbid it. 1 Disputed
Point in DisputeWhether a jurist able to identify the public good without a text is constrained by anything at all. Mohammad Hashim Kamali's Principles of Islamic Jurisprudence (Islamic Texts Society, 2003) notes that this objection has been pressed against the device, developed furthest by Maliki jurists and refused in Shafii theory, from its first formulation to the present. 1 Origins
Held ByThe Maliki school, which developed it furthest and gained room in matters the sources do not address at all. 1 Origin of the NameArabic al-masalih al-mursala, benefits left unattached, meaning benefits the texts neither endorse nor forbid by name. 1Tradition: Arabic Position Profile
Principal CriticShafii theory, which refuses it as an independent source on the ground that a benefit the texts do not indicate cannot ground a ruling, while admitting benefits the texts do indicate. 1 Learn More
The Jurist Who Said a Text Could Be Set Aside for the Public Good
Najm al-Din al-Tufi, a Hanbali jurist writing in Damascus and Cairo in the decades around 1300, pushed unstated benefit further than any jurist before or after him found comfortable. Commenting on a single hadith, that there is to be no harm and no reciprocal harm, Tufi argued that when a clear public benefit and an explicit text pointed in different directions outside matters of ritual worship, the benefit should be given priority and the text reinterpreted or set aside. Earlier Maliki use of the device had always operated inside the texts, filling gaps the sources left open. Tufi proposed something else, a benefit standing in judgment over a text rather than working alongside it, and he said so plainly rather than disguising the claim. The treatise earned him a reputation as an outlier even within his own school, cited far more often by later critics of legal reasoning than by jurists willing to follow him, and Hanbali colleagues treated it as close to conceding that revelation could be overruled by human judgment of what is good. The claim resurfaced in the twentieth century almost unchanged, as reformist jurists searching for a wide, textually independent notion of benefit to answer modern legal questions found in Tufi a predecessor bold enough to have already made their case, several centuries before they needed it.
Connections
Attributed To
Source Maslaha (Wikipedia)
Belongs to Tradition
Hanafi jurisprudence reaches the same ground through juristic preference and custom rather than through an independent doctrine of unstated benefit.
Source Principles of Islamic JurisprudenceMohammad Hashim Kamali
Maliki jurists admit an unstated public benefit as a ground of ruling, which gives the school more room than the others in matters the sources do not address at all.
Source Principles of Islamic JurisprudenceMohammad Hashim Kamali
Critiqued By
Shafii theory does not admit an unstated benefit as an independent source, holding that a benefit the texts do not indicate cannot ground a ruling.
Source Principles of Islamic JurisprudenceMohammad Hashim Kamali
Sources
1. Principles of Islamic Jurisprudence
2. Authority, Continuity and Change in Islamic Law
Maslaha (Wikipedia)
Attributed To: Al-Ghazali, Article textQuote, Attributed To: Al-Ghazali, Article text
The concept was first clearly articulated by al-Ghazali (died 1111), who argued that maslaha was Allah's general purpose in revealing the divine law, and that its specific aims was preservation of five essentials of human well-being: religion, life, intellect, offspring, and property.
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