al-Masalih al-Mursala - ضمن "Muhadarat al-Shanqiti
- Author died
- 1393 AH
- Editions
- Dār ‘Aṭā’āt al-‘Ilm
al-Masalih al-Mursala (Arabic: المصالح المرسلة, lit. 'Unrestricted Public Interests') is an ontological and jurisprudential treatise on legal theory (usul al-fiqh) by the Mauritanian scholar Muhammad al-Amin al-Shinqiti (1325–1393 AH / 1905–1974 CE) . The work examines the concept of al-maslaha al-mursala (public interest not explicitly affirmed or negated by a specific scriptural text), its categorization, and its validity as a source of legal derivation across the Islamic schools of jurisprudence .
Background and Context
The treatise originated as a lecture dictated by al-Shinqiti and delivered on his behalf during the cultural season at the Islamic University of Madinah in 1390 AH (1970 CE) . An account by Abd al-Muhsin al-Abbad notes that al-Shinqiti had delivered a lecture on the subject at Dar al-Hadith prior to the construction of the lecture hall at the Islamic University . The text was published as an independent tract and was later compiled alongside three of his other addresses in Muhadarat al-Shanqiti, issued under the editorial supervision of Bakr Abu Zayd .
Contents and Legal Argumentation
Al-Shinqiti opens the work by outlining the three universal interests underlying divine legislation: warding off harms (dar' al-mafasid, known as necessities or daruriyyat), securing benefits (jalb al-masalih, known as needs or hajiyyat), and adhering to noble character and best customs (embellishments and complements, or tahsiniyyat and tatmimiyyat) . He divides legal attributes (wasf) into the appropriate (munasib), the incidental (tardi), and the analogical (shabahi) .
Regarding the appropriate attribute, he distinguishes three categories based on scriptural recognition:
- An interest supported by specific textual evidence (al-mu'aththir and al-mula'im) .
- An interest discarded by specific textual evidence (al-gharib / canceled interest), such as requiring a ruler to expiate zihar exclusively through fasting rather than slave emancipation to ensure deterrence; al-Shinqiti notes that the Lawgiver canceled this consideration in favor of the weightier interest of freeing slaves .
- An interest for which no specific text exists either validating or invalidating it, which constitutes al-maslaha al-mursala (also referred to as istislah or al-mursil) .
Defense of Malik and Historical Precedents
Al-Shinqiti refutes criticisms directed against Malik ibn Anas by scholars such as Abu al-Ma'ali al-Juwayni . He rejects claims that Malik permitted executing one-third of the population to reform the remaining two-thirds or amputating limbs as discretionary punishments (ta'zirat), citing clarifications by Shihab al-Din al-Qarafi and Muhammad ibn al-Hasan al-Bannani that no such positions exist in the Maliki school . He also clarifies Malik's position on interrogating an accused person through physical pressure, explaining that it applies strictly when prior betrayal (khiyana) has been firmly established .
To establish the validity of the principle, al-Shinqiti details numerous actions of the Companions of the Prophet that were grounded in public interest without specific textual commands, including:
- Adding dots and vowel marks to the Qur'an and compiling it to protect it from alteration and loss .
- Uthman ibn Affan's burning of variant codices to unify the community, instituting a second call to prayer for Friday congregations, and demolishing structures adjoining the mosque to expand it .
- Abu Bakr al-Siddiq's nomination of Umar ibn al-Khattab as caliph, and Umar's delegation of the caliphate to a consultative council of six .
- Umar's purchase of the house of Safwan ibn Umayya in Mecca to establish a prison, his creation of military and administrative registers (tadwin al-dawawin), and his decision to leave conquered lands undivided for the benefit of future generations .
Positions of the Juristic Schools
Reviewing the stances of other jurists, al-Shinqiti quotes Taj al-Din al-Subki, Abu Hamid al-Ghazali, and al-Qarafi to show that reliance on public interest is not unique to the Maliki school, but is employed across all four madhhabs . He discusses al-Ghazali's treatment in al-Mustasfa of extreme cases—such as the problem of enemies using Muslim captives as human shields (al-tatarrus) and imposing emergency taxes on the wealthy to sustain the army—alongside the responses of later commentators .
Al-Shinqiti concludes that acting on al-masalih al-mursala does not constitute the creation of an entirely new legal system (tashri' jadid), but emphasizes that jurists must exercise extreme caution to ensure that the purported benefit is genuine, does not conflict with an equal or greater interest or harm, and does not ultimately lead to corruption .
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