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Philosophy and Fundamentals of Sharī’ah for Islamic Finance
SHA0011

a. Imām al-Haramayn
The Malikis in general and Imām al-Haramayn accepted maṣlaḥah
mursalah as an independent source of law.

AI-Qarafi went further by claiming: “We use it and the truth is
that it is generally accepted among the schools. He further alleged
that in fact all Schools of Islamic Legal Thought have either consciously
or unconsciously applied it.

Imām al-Ghazāli puts a condition that for a maṣlaḥah mursalah
to be accepted, it shall have the features of necessity (ḍarūriyyah),
explicit (qada’iyyah) and general (kulliyyah).

b. Ẓāhiri and Shāfi’ī
Some jurists including that of the Ẓāhiri, Shāfi’ī, Māliki like Ibn Hajib
and al-Āmidi rejected Maṣlaḥah Mursalah as an independent
source of law.

c. Imām al-Shātibi
Imām al-Shātibi opined that the purpose of this verse is to abolish
or eliminate any barrier dividing humanity in order to be blessed
with Allāh’s mercy.

Condition for the Application of Maṣlaḥah Mursalah

a. Must not be in conflict with definitive proof of the Qur’ān and Sunnah.

b. Must be genuine. A mere conjecture of maṣlaḥah is insufficient.

c. Must be general in the sense of securing benefit and removing
harms to the people as a whole and not to a particular person
or a group of person.

3. Customary Practice (‘Urf)
The term ‘urf, meaning “to know”, refers to the customs and practices of
a given society. Although this was not formally included in Islamic law, the
Sharī’ah recognizes customs that prevailed at the time of Prophet SAW
but were not abrogated by the Qur’ān and Sunnah.

‘Urf and ‘ādah are largely synonymous and the majority of the jurists
have used them interchangeably.

The jurists, especially Ḥanafīs and Mālikis, have considered ‘urf as one
of the sources of Sharī’ah.

Condition of ‘Urf
a. It must represent a common and recurrent phenomenon.

b. It must be in existence at the time a contract is executed.

c. It must not contravene the clear stipulation of an agreement.