Istislah

Istislah(Arabic:استصلاح,lit. 'to deem proper') is a method employed byIslamic juriststo solve problems that find no clear answer in sacred religious texts. It is related to the term مصلحةMaslaha,or "public interest" (both words being derived from the sametriconsonantal root,"ṣ-l-ḥ" ).Extratextual pragmatic considerations are commonly accepted inIslamic jurisprudenceconcerning areas where theQur'anand the practices of the earliest Muslim generations (Salaf) provide no specific guidance.

Istislahbears some similarities to thenatural lawtradition in theWest,as exemplified byThomas 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,istislahcalls good whatever is connected to one of five "basic goods".Al-Ghazaliabstracted these "basic goods" from the five legal precepts in theQur'anandSunnah—religion, life, reason, lineage (or offspring), and property. In this classical formulation,istislahdiffers fromutilitarianism— "the greatest happiness for the greatest number of people" —because something that results in "the greatest happiness" may infringe any one of the five basic values. Rather than utilitarianism, Istislah bears closer resemblance todeontologicalism.

The legal concepts ofIstislahandMaslahaattained significant attention in the works of the 20th century Sunni juristMuḥammad Rashīd Riḍā(d. 1354 A.H/ 1935 C.E), who considered the "no harm no retribution"hadithto be an important textual principle. Citing theAndalusianMalikitejuristAl-Shatibi(d. 790 A.H/ 1388 C.E), Rida elaboratedMaslahaas a "basic principle" in legal derivation and distinguished affairs into issues of'Ibadat(rituals) andMu'amalat(transactions). The former consists of absolute, unchanging rules; while rules regarding issues ofMu'amalatmay vary with time since Revelation is not absolute in all of them. However, unlike the expansive scope ofMu'amalatby Al-Shatibi; Rida dividedMu'amalatissues into two types: i) those that are moral norms and ii) those which are morally irrelevant. The former are similar to the'Ibadatrules which were Revealed by God who defined moral norms and hence, fixed. Those who break these rules are sinfultransgressors.The latter category of issues, can be solved through the process ofQiyas.

In the contemporary era, somehuman rightsare considered "Islamic" using the methods ofIstislahandMaslaha.InEgypt,this approach has been backed by theSupreme Constitutional Court,which has ratified equitable measures benefiting women even where these seemingly conflict with principles of classicalShari'ah.

See also

• Istihsan