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Maṣlaḥah

MALAAH

MALAAH is the Arabic term for the Islamic concept of public interest or general welfare of the community of Muslims. Consideration for the public interest (istilā ) is held by Muslim legal scholars to be ancillary to the four canonical sources of Islamic law, namely the Qurʾān; the sunnah, or normative behavior of the Prophet; ijmāʿ, or the historical consensus of the community; and qiyās, analogical extension of accepted law or judgment. Although these sources are meant to provide guidelines for all eventualities, there have always been instances that seem to require abandoning either the specific ordinances of the Qurʾān and sunnah or the results of analogical reasoning, because of the overriding nature of the public interest.

In positive or applied law, considerations of malaah in social and economic matters have usually led to the inclusion of pre-Islamic or non-Islamic local laws and customs in regional local practice. Historically, the concept of malaah has been associated more often with Mālikī school than with the other Sunnī schools of law. This is largely due to the attention the Mālikī scholars of Morocco have given it in their recognition of the validity of local practice (ʿamal ), even though they thereby allow institutions that strict Mālikī theory would reject. But the association of malaah with the Mālikīyah should not be overemphasized; all Sunnī schools of law have contributed to its development and utilization.

The early and medieval Muslim scholars who wrote on malaah defined it in various ways. Some approached it purely from a practical point of view; others considered it a problem of the philosophy of law and discussed its moral and ethical aspects. They all indicated, however, that the investigation of malaah involved concern for the spirit rather than the letter of the law. Focusing on this feature of malaah, a few twentieth-century Muslim reformers have put forward the idea of redefining malaah in terms of the needs of contemporary society and then using istilāh as a vehicle for modernizing and revitalizing Islamic law. Thus far, at least, their efforts have not been successful.

Bibliography

Aghnides, Nicolas P. Muhammadan Theories of Finance. New York, 1916. Very useful and detailed introduction to the sources of Islamic law.

Kerr, Malcolm H. Islamic Reform: The Political and Legal Theories of Muhammed Abduh and Rashid Rida. Berkeley, 1966. Discusses the history of malaah and some modern attempts to utilize it for Islamic reform.

Schacht, Joseph. An Introduction to Islamic Law. Oxford, 1964. The authoritative general introduction, with a very valuable bibliography.

Susan A. Spectorsky (1987)

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