Istislah
Encyclopedia
Istislah is a method employed by Muslim
jurist
s to solve problems that find no clear answer in sacred religious texts. It is related to the term مصلحة Maslaha
, or "public interest" (both words being derived from the same triconsonantal root, "ṣ-l-ḥ"). Extra-textual pragmatic considerations are commonly accepted in Islamic jurisprudence
concerning areas where the Qur'an
and the practices of the earliest Muslim generations provide no specific guidance. However, appeals to Istislah or Maslaha are controversial when the goal is reforming what has been considered to be divinely-revealed law.
Istislah bears some similarities to the natural law
tradition in the West, as exemplified by Thomas Aquinas
. However, whereas natural law deems good that which is known self-evidently to be good, according as it tends towards the fulfilment of the person, istislah calls good whatever is connected to one of five "basic goods". Al-Ghazali abstracted these "basic goods" from the legal precepts in the Qu'ran and Sunnah: they are religion, life, reason, lineage and property. Some add also "honour".
Istislah, in this classical formulation, is not mere utilitarianism, which calls good whatever brings about "the greatest happiness for the greatest number." That is so because a measure bringing about the "greatest happiness" might infringe any one of the five basic values.
A more "liberal" strain of istislah has been important in the twentieth century and centres on the work of Rashid Rida
. Rida considered that the "no harm no retribution" hadith is a supreme principle of legal liberalism, before which all other principles of the Shari'ah must give way. By this method, legislation promoting negative freedoms and human rights is to be considered "Islamic". In Egypt this approach has been upheld by the Supreme Constitutional Court, which has ratified equitable measures benefiting women even where these seemingly conflict with principles of classical Shari'ah.
Muslim
A Muslim, also spelled Moslem, is an adherent of Islam, a monotheistic, Abrahamic religion based on the Quran, which Muslims consider the verbatim word of God as revealed to prophet Muhammad. "Muslim" is the Arabic term for "submitter" .Muslims believe that God is one and incomparable...
jurist
Jurist
A jurist or jurisconsult is a professional who studies, develops, applies, or otherwise deals with the law. The term is widely used in American English, but in the United Kingdom and many Commonwealth countries it has only historical and specialist usage...
s to solve problems that find no clear answer in sacred religious texts. It is related to the term مصلحة Maslaha
Maslaha
Maslaha is a concept in traditional Islamic Law. It is invoked to prohibit or permit something on the basis of whether or not it serves the public's benefit or welfare. The concept is related to that of Istislah...
, or "public interest" (both words being derived from the same triconsonantal root, "ṣ-l-ḥ"). Extra-textual pragmatic considerations are commonly accepted in Islamic jurisprudence
Fiqh
Fiqh is Islamic jurisprudence. Fiqh is an expansion of the code of conduct expounded in the Quran, often supplemented by tradition and implemented by the rulings and interpretations of Islamic jurists....
concerning areas where the Qur'an
Qur'an
The Quran , also transliterated Qur'an, Koran, Alcoran, Qur’ān, Coran, Kuran, and al-Qur’ān, is the central religious text of Islam, which Muslims consider the verbatim word of God . It is regarded widely as the finest piece of literature in the Arabic language...
and the practices of the earliest Muslim generations provide no specific guidance. However, appeals to Istislah or Maslaha are controversial when the goal is reforming what has been considered to be divinely-revealed law.
Istislah bears some similarities to the natural law
Natural law
Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...
tradition in the West, as exemplified by Thomas Aquinas
Thomas Aquinas
Thomas Aquinas, O.P. , also Thomas of Aquin or Aquino, was an Italian Dominican priest of the Catholic Church, and an immensely influential philosopher and theologian in the tradition of scholasticism, known as Doctor Angelicus, Doctor Communis, or Doctor Universalis...
. However, whereas natural law deems good that which is known self-evidently to be good, according as it tends towards the fulfilment of the person, istislah calls good whatever is connected to one of five "basic goods". Al-Ghazali abstracted these "basic goods" from the legal precepts in the Qu'ran and Sunnah: they are religion, life, reason, lineage and property. Some add also "honour".
Istislah, in this classical formulation, is not mere utilitarianism, which calls good whatever brings about "the greatest happiness for the greatest number." That is so because a measure bringing about the "greatest happiness" might infringe any one of the five basic values.
A more "liberal" strain of istislah has been important in the twentieth century and centres on the work of Rashid Rida
Rashid Rida
Muhammad Rashid Rida is said to have been "one of the most influential scholars and jurists of his generation" and the "most prominent disciple of Muhammad Abduh"...
. Rida considered that the "no harm no retribution" hadith is a supreme principle of legal liberalism, before which all other principles of the Shari'ah must give way. By this method, legislation promoting negative freedoms and human rights is to be considered "Islamic". In Egypt this approach has been upheld by the Supreme Constitutional Court, which has ratified equitable measures benefiting women even where these seemingly conflict with principles of classical Shari'ah.