(CONSIDERATIONS OF PUBLIC INTEREST)
• Literal : benefit or interest – unrestricted public interest in the sense of not having been regulated by the Lawgiver & no textual authority can be found on its validity or otherwise. - Al Ghazali : - consists of considerations which secure a benefit or prevent a harm but are, in the meantime, harmonious with the objectives (maqasid) of the Shariah.
• Technical : a consideration which is proper & harmonious (wasf munasib mula’im) to the objectives of the Lawgiver, it secures a benefit or prevents a harm, & the Syariah provides no indication as to its validity or otherwise. • E.g . : Decision to issue currency , to establish prisons, & to impose tax (kharaj) on agricultural lands in the conquered territories despite the fact that no textual authority can be found in its favour.
• derives its validity fr the norm that the basic purpose of legislation in Islam is to secure the welfare of the ppl by promoting their benefits or by protecting them against harm.
• The word “maslahah” – can neither be enumerated nor predicted in advance as they chg according to time & circumstance.
• Majority of uelama : MM is a proper ground for legislation – when the maslahah is identified & the mujtahid does not find an explicit ruling in the nass, he must act in its pursuit by taking the necessary steps to secure it. – therefore it is justified by saying that God’s purpose in revealing the Syariah is to promote man’s welfare & to prevent corruption in the earth.
• The concept of MM does not apply to the rulings of the Prophet : When there is a Prophetic ruling in favour of a maslahah, it becomes part of the established law, hence no longer a MM. – from a historical vantage, the notion of MM originates in the practice of the Companions. This is not to say that the Prophet has not ruled in favour of maslahah, but merely to point out that as a principle of...