Utility in Classical Islamic Law: the Concept of 'Maslahah' in "Usul Al-Fiqh".

Abstract

Questions concerning the nature of law and legal change are prominent subjects of legal debate both in the West and in the Muslim world. The focus in the discussion of these questions in the Muslim world is the concept of maslahah. The purpose of this dissertation is to explore the issue of maslahah in classical legal theory by analyzing the views of the major legal theorists for the four schools of thought and the Mu('c)tazilah. Maslahah literally means utility or what is good and beneficial, but technically it refers to the purposes of legal rulings and the intended utility of the Law. The fundamental question of maslahah that confronts Muslim theorists is what role do the purposes of the Law and utility play in legal reasoning. The way a theorist answers this question is pivotal in how he underst and s the nature of law and legal change. The investigation of classical legal theory shows that legal theorists can be divided into two groups: limiters of maslahah and supporters of maslahah. The limiters of maslahah restrict the consideration of utility and the purposes of the Law to the confines of strict analogy (qiyas). For them, a general maslahah cannot serve as a justification for a new legal ruling. The supporters of maslahah, however, allow a greater freedom to considerations of maslahah. In their view utility and the general purposes of the Law are legitimate bases for new rulings as long as the maslahah is derivable from the authoritative sources of the Law. The supporters of maslahah, therefore, are more open to legal change than the limiters of maslahah. This dissertation will investigate such topics as the role of maslahah in qiyas, maslahah mursalah, istihsan, and other principles of maslahah like sadd al-dharai'('c).