حجية المصلحة المرسلة بين المالكية والشافعية :دراسة مقارنة

Abstract

The research aims to investigate the legal authority of maṣlaḥah mursalah in the perspective of the Maliki and Shafiʻi Schools. It focuses on comparing their views and to seek a definitive understanding of them. The concept of maṣlaḥah mursalah has attracted a great deal of controversy as both schools had insurmountable misinterpretation of maṣlaḥah mursalah among themselves. They differed on a number of issues regarding maṣlaḥah mursalah, especially on matters relating to its legal authority and the scope of its applications. This is due to frequent lack of rigor in the manifestation of opinions and also the lack of accuracy in defining the area of dispute. The study employs three methods to examine the different aspects of the subject. The methods consist of induction, analysis and comparison. The study reveals that the Maliki School employs two types of maṣlaḥah mursalah: near (qarībah) and distant (ba‘idah), which means that they accept the levels of near and distant maṣlaḥah mursalah. However, they do not accept the type of maṣlaḥah mursalah known as gharib (anomalous) as there is no relevant precedent in which the Shariʻah has recognized it. This is similar to the notion of the Shafiʻi School. This is based on detaied study that defined the meaning of the term “near maṣlaḥah mursalah” in this school is the same as “congruous (mula’imah) maṣlaḥah mursalah”, that incorporates the degrees of near (qaribah) and distant (ba‘idah) as understood by Malik. In addition, more in-depth study has defined the meaning of the term “distant maṣlaḥah mursalah” according to the Shafiʻis is the same as “anomalous maṣlaḥah mursalah” as understood by the Mālikīs. This indicates that the two schools agree on the theoretical level. As for application, the schools differ in opinions of how frequent or infrequent the use of this class of evidence, as is well known from the fiqh books of the two schools.