UTILIZATION

AGREED UPONAGREED UPON

AL-QUR’AN

AL-SUNNAH

DISAGREED UPONDISAGREED UPON

AL-IJMA’

AL-QIYAS

AL-ISTIHSANAL-’URFAMAL AHL AL-MADINAHMASALIH MURSALAH

AL-ISTISHABSAD DHARAI’

SADD AL-DHARAI’سد الذرائع

SADD AL-DHARAI’ THE MEANING

THE CLASSIFICATION

THE BASIS

THE MEANING OF SADD AL-DHARAI’

Literal MeaningSadd means blocking. Dharai’ means the ways of obtaining a certain end. It also means method or medium towards something. According to the term, dhariah is the medium towards other things either to practise or not to practise.

Technical Meaning Blocking the means to an expected end which is likely to materialise if such a means is not blocked.

Al-Qarafi:“Closing down the means of evil in order to prevent it”

THE MEANING OF SADD AL-DHARAI’ There are two factors in judging : firstly maqasid which is something

that shapes the importance (masalih) and disadvantage (mafasid). Secondly : Wasail which is referred to the method to reach the maqasid.

The ruling for the method is the same ruling of the purpose and objective. For example, Jumaat prayer is compulsory, therefore to go to the mosque to perform solat al-jumaat and to stop transaction activities during the prayer time is then compulsory.

Fornication is prohibited, therefore, hermitage with non mahram in an isolated place is also prohibited because it could lead to the fornication which is haram.

CLASSIFICATIONS OF SADD AL-DHARAI’

Four categories of Sadd al-Dharai’:

a. Dharai’ which definitely leads to evil

b. Dharai’ which is most likely to lead to evil and is rarely, if ever, expected to lead to a benefit.

c. Dharai’ which frequently leads to evil but there is no certainty (that it will frequently leads to evil), nor even a prevailing probability that this will always be the case.

d. Dharai’ which is rarely expected to lead to evil and is most likely to lead to a benefit.

DHARAI’

DEFINITELY leads to evil

MOST LIKELY leads to evil

& RARELY leads expected to lead to a benefit

FREQUENTLYleads to evil

but w/out certainty

RARELY expected to lead

to evil and is MOST LIKELY to lead to a benefit

TYPE Aa. The building of structure at hill slope which is proven to be unsafe for the construction of any buildings.

b. Digging a deep pit on a public path which is not lit at night. Anyone who passes the path is most likely to fall in the pit.

TYPE BExample:a. Selling of weapons at the time of warb. Selling grapes to a wine makerc. Free mixing between the opposite sexd. Marrying with the intention of divorce so as to enable her to re marry her previous husband

Al-Shatibi: “This type of Dharai’ is forbidden especially to Maliki and Hanbali”

TYPE CThe usage of credit card for those who are certain of not being able to repay the credited amount taken at the due dateThe scholars differed in this matter:a. The Malikites and Hanbalites held the opinion that the means which is likely to lead to harm is haram and must be hindered. b. Abu Hanifah and Shafi’i ruled that unless it definitely leads to evil, the basic legality of the action must be held to prevail

TYPE DExample:

The usage of current equipment such as computers, internet, television, telecommunication equipments.

The scholars are generally in agreement on the appreciation of this type of Dharai’.

THE BASIS OF SADD AL-DHARAI’

ه عدوا بغير علم..." وا الل ه فيسب ذين يدعون من دون الل وا ال "وال تسب)108(األنعام:

“And do not abuse those whom they call upon besides Allah, lest exceeding the limits they should abuse Allah out of ignorance”

The prohibition of the practice of monopoly (al-Ihtikar)

The practice of al-ihtikar is forbidden as it will lead to difficulties among people particularly if it is practice in order to raise the price of essentials goods.

XGOOD YHARAM

HARAM

MASLAHAH AL-MURSALAHالمصلحة المرسلة

THE MEANING OF MASLAHAH Literal Meaning

Maslahah : benefit or interest

Technical Meaning

Maslahah Mursalah is unrestricted public interest in the sense of not having been regulated by the Legislator and when no textual authority can be found on its validity or otherwise

MASLAHAH AL-MURSALAH The Meaning of Maslahah

The Classification of Maslahah

Conditions for the Validity of Maslahah

The Basis of Maslahah Mursalah

THE MEANING OF MASLAHAH (Cont’d)

Al-Ghazali, Muhammad ibn Muhammad

“The consideration which secures a benefit or prevents harm but –in the meantime- is harmonious with the aim and objective of the Shariah”

Any measure which secures these value falls within the scope of maslahah and anything which contravenes them is mafsadah (evil).

Preventing mafsadah is also considered as maslahah.

THE CLASSIFICATION OF MASLAHAH The scholars have divided maslahah into three categories

a. al-Maslahah al-Mu’tabarah Accredited Maslahah

b. al-Maslahah al-MulgaInvalidated Maslahah

c. al-Maslahah al-MursalahMaslahah w/out any text neither to validate it nor to invalidate it.

AL-MASLAHAH AL-MU’TABARAH

The maslahah or the benefit which the Qur’an or al-Sunnah has expressly upheld and has enacted a law for its realization

The validity of this maslahah is absolute, thus it cannot be rejected and must be upheld.

The scholars are in agreement in promoting and protecting this type of maslahah.

Example:The verses which prohibited the consumption of liquor.The verses which prohibited killing.

AL-MASLAHAH AL-MULGA The maslahah which al-Qur’an and al-Sunnah has nullified

either clearly or by indication that could be found in Shariah.

The scholars are in agreement that legislation based on such maslahah/interest is invalid and no judicial ruling may be enacted in its favor.

ExampleThe practice of usuryAn attempt to give the son and daughter an equal share in inheritance.

An attempt to give the wife the right of divorce.

AL-MASLAHAH AL-MURSALAH The maslahah which has not been regulated by the Legislator

and there is no textual authority can be found on its validity or otherwise. In other words, al-maslahah al-mursalah is referred to a benefit or interest that includes in the objectives of the syariah, without any evidence found in the nass either to considered or reject.

The scholars are not in agreement whether it is a valid basis for regulation of law or not.

Examplea. Codification of al-Qur’anb. Death penalty for a group of people who are involved in killing a person

C. Not allow an ill-husband who is about to die (marad al-maut) to divorce his wife in order to prevent her from getting his property.

CONDITIONS FOR THE VALIDITY OF MASLAHAH MURSALAH

The Maslahah must be genuine.(المصلحة الحقيقية)

The Maslahah must be general.(المصلحة الكلية)

The Maslahah must not be in conflict with al-Qur’an, al-Hadith or al-Ij’ma’.

GENUINE MASLAHAHThe maslahah must be genuine as opposed to imaginary

maslahah (maslahah wahmiyyah)

There must be a sensible probability that the benefits of legislating a rule in the pursuance of maslahah outweighs the harms that might accrue from it.

Example of an imaginary maslahah To abolish the husband's right of Talaq by vesting it entirely in a court of law

GENERAL MASLAHAH Maslahah must prevents harm or secures benefit to the

people as a whole and not to a particular person or group of persons.

This indicates that legislating a rule on ground of maslahah must consider a benefit to the largest possible number of people.

This is because the whole concept of maslahah is meant to secure the welfare of the people at large.

THE BASIS OF MASLAHAH MURSALAH Al-Qur’an explain that Allah did not intent to burden mankind

through the different injunctions revealed to them:

"....وما جعل عليكم في الدين من حرج ..."“…He has not laid upon you in religion any hardship…”

[al-Hajj: 75]

ه بكم اليسر وال يريد بكم العسر . يريد الل“…Allah intends for you ease, and He does not want to make

things difficult for you...” [Al-Baqarah: 185]

THE BASIS OF MASLAHAH MURSALAH (CONT’D)

The consideration of the public interest will definitely lead to lifting hardship and burden on mankind.

There are many instances in the history of Islamic law and the views of scholars that indicate the usage of this source as the important tool in deducing the rulings of Fiqh. Denying the usage of such source will lead to the passiveness of Shariah and this will lead to inability of resolving and suggesting appropriate solution to many contemporary issues facing the ummah.