''Istislah'' (

Arabic Arabic (, , or , ) is a Central Semitic languages, Central Semitic language of the Afroasiatic languages, Afroasiatic language family spoken primarily in the Arab world. The International Organization for Standardization (ISO) assigns lang ...

: استصلاح, ) is a method employed by Islamic jurists to solve problems that find no clear answer in sacred religious texts. It is related to the term مصلحة ''

Maslaha ''Maslaha'' or ''maslahah'' (, ) is a concept in Sharia (Islamic divine law) regarded as a basis of law.I. Doi, Abdul Rahman. (1995). "Mașlahah". In John L. Esposito. ''The Oxford Encyclopedia of the Modern Islamic World''. Oxford: Oxford Univer ...

'', or "public interest" (both words being derived from the same

triconsonantal root The roots of verbs and most nouns in the Semitic languages are characterized as a sequence of consonants or " radicals" (hence the term consonantal root). Such abstract consonantal roots are used in the formation of actual words by adding the vowel ...

, "ṣ-l-ḥ"). Extratextual pragmatic considerations are commonly accepted in

Islamic jurisprudence ''Fiqh'' (; ) is the term for Islamic jurisprudence.Fiqh
Encyclopædia Britannica ''Fiqh'' is of ...

concerning areas where the ''

Qur'an The Quran, also romanized Qur'an or Koran, is the central religious text of Islam, believed by Muslims to be a revelation directly from God ('' Allāh''). It is organized in 114 chapters (, ) which consist of individual verses ('). Besides ...

'' and the practices of the earliest Muslim generations (''

Salaf Salaf (, "ancestors" or "predecessors"), also often referred to with the honorific expression of al-salaf al-ṣāliḥ (, "the pious predecessors"), are often taken to be the first three generations of Muslims. This comprises companions of the ...

'') provide no specific guidance. ''Istislah'' bears some similarities to the

natural law Natural law (, ) is a Philosophy, philosophical and legal theory that posits the existence of a set of inherent laws derived from nature and universal moral principles, which are discoverable through reason. In ethics, natural law theory asserts ...

tradition in the

West West is one of the four cardinal directions or points of the compass. It is the opposite direction from east and is the direction in which the Sun sets on the Earth. Etymology The word "west" is a Germanic word passed into some Romance langu ...

, as exemplified by

Thomas Aquinas Thomas Aquinas ( ; ; – 7 March 1274) was an Italian Dominican Order, Dominican friar and Catholic priest, priest, the foremost Scholasticism, Scholastic thinker, as well as one of the most influential philosophers and theologians in the W ...

. 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 Al-Ghazali ( – 19 December 1111), archaically Latinized as Algazelus, was a Shafi'i Sunni Muslim scholar and polymath. He is known as one of the most prominent and influential jurisconsults, legal theoreticians, muftis, philosophers, the ...

abstracted these "basic goods" from the five legal precepts in the ''

'' and ''

Sunnah is the body of traditions and practices of the Islamic prophet Muhammad that constitute a model for Muslims to follow. The sunnah is what all the Muslims of Muhammad's time supposedly saw, followed, and passed on to the next generations. Diff ...

''—religion, life, reason, lineage (or offspring), and property. In this classical formulation, ''istislah'' differs from

utilitarianism In ethical philosophy, utilitarianism is a family of normative ethical theories that prescribe actions that maximize happiness and well-being for the affected individuals. In other words, utilitarian ideas encourage actions that lead to the ...

—"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 to deontologicalism. The legal concepts of ''Istislah'' and ''

'' attained significant attention in the works of the 20th century Sunni jurist Muḥammad Rashīd Riḍā (d. 1354 A.H/ 1935 C.E), who considered the "''no harm no retribution''" ''

hadith Hadith is the Arabic word for a 'report' or an 'account f an event and refers to the Islamic oral tradition of anecdotes containing the purported words, actions, and the silent approvals of the Islamic prophet Muhammad or his immediate circle ...

'' to be an important textual principle. Citing the Andalusian

Malikite The Maliki school or Malikism is one of the four major schools of Islamic jurisprudence within Sunni Islam. It was founded by Malik ibn Anas () in the 8th century. In contrast to the Ahl al-Hadith and Ahl al-Ra'y schools of thought, the Malik ...

jurist Al-Shatibi (d. 790 A.H/ 1388 C.E), Rida elaborated ''Maslaha'' as a "basic principle" in legal derivation and distinguished affairs into issues of '' 'Ibadat'' (rituals) and '' Mu'amalat'' (transactions). The former consists of absolute, unchanging rules; while rules regarding issues of ''Mu'amalat'' may vary with time since Revelation is not absolute in all of them. However, unlike the expansive scope of ''Mu'amalat'' by Al-Shatibi; Rida divided ''Mu'amalat'' issues into two types: i) those that are moral norms and ii) those which are morally irrelevant. The former are similar to the '''Ibadat'' rules which were Revealed by God who defined moral norms and hence, fixed. Those who break these rules are sinful transgressors. The latter category of issues, can be solved through the process of ''

Qiyas Qiyas (, , ) is the process of deductive analogy in which the teachings of the hadith are compared and contrasted with those of the Quran in Islamic jurisprudence, in order to apply a known injunction ('' nass'') to a new circumstance and cre ...

''. In the contemporary era, some

human rights Human rights are universally recognized Morality, moral principles or Social norm, norms that establish standards of human behavior and are often protected by both Municipal law, national and international laws. These rights are considered ...

are considered "Islamic" using the methods of ''Istislah'' and ''Maslaha''. In

Egypt Egypt ( , ), officially the Arab Republic of Egypt, is a country spanning the Northeast Africa, northeast corner of Africa and Western Asia, southwest corner of Asia via the Sinai Peninsula. It is bordered by the Mediterranean Sea to northe ...

, this approach has been backed by the Supreme Constitutional Court, which has ratified equitable measures benefiting women even where these seemingly conflict with principles of classical ''

Shari'ah Sharia, Sharī'ah, Shari'a, or Shariah () is a body of religious law that forms a part of the Islamic tradition based on scriptures of Islam, particularly the Qur'an and hadith. In Islamic terminology ''sharīʿah'' refers to immutable, intan ...

''.

References

{{Reflist Sharia legal terminology

See also

References