APPRAISING AL-MASLAHAH AL- MURSALAH AS A SOURCE OF ISLAMIC LAW IN JUDICIAL PROCEEDINGS UNDER THE MALIKI LAW

CHAPTER ONE GENERAL INTRODUCTION

                        Background of the study

Al-Maslahah al-Mursalah is a method employed by the jurists and Islamic scholars in dealing with new issue (al-waqi‟ah) not sanctioned by Allah or His Apostle on its face value,  while at  the sametime not indicating that such an issue is unacceptable in the context of the Shari‟ah¹

Al-Maslahah al-Mursalah as a legal concept is also known as al- istislah, that is, public interest  or social welfare, which has been decided upon so as to serve the public interest or social welfare of the Muslim Ummah²

As an important principle of the Shari‟ah, al-Maslahah al-Mursalah is capable of legitimizing new developments thoughts and institutions, the adoption of which is designed to promote the public interest and the welfare of the Muslim Ummah by securing for them some advantages and averting injury from them.³

The Maqasid is the plural form of maqsid which means the (intentds or purposes of al-Shari‟a) which is to ensure the well being of Mankind, In other words, Maqsid comes to promote public interest and social welfare of the Muslim community by providing anything beneficial to them, keeping them in a good state of affairs, and protecting them against any harmful or injurious situation or event.⁴ The public interest and welfare of mankind is endless and flexible, same changes with the change of time and environment, a particular state of affairs may be considered to be the best interest of the public in one community, and harmful or injurious in another community. Also a particular state of affairs may serve the public interest and social welfare in one time and be harmful or injurious in another time within the same community. ⁵

The concept of al-Maslahah al-Mursalah is recognized and regarded as a source of Islamic law by the Muslim jurists such as Maliki School beca use it intends to further enforce the Maqasid al- Shari‟a in eradicating injustice and making life comfortable and smooth for mankind. ⁶

The courts of law may be faced with new issues on which there is  no  specific sanction by Allah or His Apostle (S.A.W) on their face value, but, never the less, they require judicial pronouncement sanctioning them, hence the need for Shari‟a Court Judges to understand this concept very well and apply same accordingly, therefore the court should not be striking out cases or matters for the simple reason that such matters have not been covered by a specific  Nass.

This research also intends to discuss the relevance of al-Maslahah al-Mursalah in judicial adjudication under the Maliki School of law. It is needless to say that the limit of this research does not give room for the comprehensive discussion on the generality of the sources of Islamic law and as such, this research focuses on al-Maslahah al-Mursalah as a source of Islamic  law  and its relevance in judicial proceedings under the Maliki School of law.

                        Statement of the Proble m

Some Shari‟a Court judges in Nigeria restrict themselves to application of specific texts while determining cases that are brought before them. Sometimes cases that are not sanctioned by a specific text are brought to them and, instead of determining those cases based on public interest (al-Maslahah) they claim to be “Muqallidun” (i.e followers, not elligble to practice independent reseoning) and refuse to determine those cases in line with Maslahah.

Some judges also apply texts strictly while determining cases before them without considering  the Maslahah behind such application on a particular person in a particular time or circumstance. The judges who understand the concept of the Maslahah Mursalah sometimes find it difficult to apply same if the matter boarders on Ta‟azir punishment because there is no legislation to that effect, and the position of law in Nigeria is clear in this respect, that a person can only be punished if the offence he has committed is contained in a written statute and the  punishment  also contained thereat. The legislators in the Sharia State also do not consider al-Maslahah al- Mursalah while making their laws.

                        Aim and Objectives of the Research