APPRAISING Al-MASLAHAH AL- MURSALAH AS A SOURCE OF ISLAMIC LAW IN JUDICIAL PROCEEDINGS UNDER THE MALIKI LAW

APPRAISING Al-MASLAHAH AL- MURSALAH AS A SOURCE OF ISLAMIC LAW IN JUDICIAL PROCEEDINGS UNDER THE MALIKI LAW

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ABSTRACT

Al Maslahah al mursala is a Maslahah which is neither acknowledged nor rejected by the Law Giver. It is called (Mursalah) that is absolute or free from any restriction because it is not qualified or based on a specific Nass. al-Maslahah al-Mursalah can also be any benefit which can be inferred from the five purposes of Islamic Law, but they are neither directly acknowledged nor rejected by the Law Giver al-Maslah al-Mursalah is one of the sources of Islamic law recognized and applied by the Maliki School of law, Some Muslim jurists do not recognize al-Maslah al-Mursalah as a source of Islamic law that is why it is categorized as one of the disputed source of Islamic law. The Maliki school is the leading jurists in terms of the application of al-Maslah al-Mursalah, .This research work examines al-Maslah al-Mursalah as a source of Islamic law, position of al-Maslah al-Mursalah in Nigerian Legal System, Extent of powers of the Shari‟ah court judges to practice Ijtihad while applying al-Maslah al-Mursalah and practical examples of the application of al-Maslah al-Mursalah in judicial proceedings was discussed in this research, it was observed that the Sahabah , the Tabi‟un and their followers applied al-Maslahah al-Mursalah in most of their Fatawa and adjudication due to its importance in dealing with new issues that might have come during their time, though they did not give it the nomenclature “al-Maslah al-Mursalah” but a careful look at what they did clearly shows that their verdicts were based on the concept known today as al-Maslahah al-Mursalah..It was also observed that the suspension of hadd punishment for theft by caliph Umar due to femine based on Maslaha gives rise to the development of somany principles of Islamic law such as Aldharurat tabihu It was recommended that the present Ulama should imitate the Sahabah , the Tabi‟un and their followers in basing their fatawa on matters that are not specifically sanctioned or covered by a specific Nass by applying the Al-Maslahah al-Mursalah It is also recommended that the judges should use Maslaha Murdala to develop ptinciple of Islamiclaw that will take care of the emergine issues that are brought before them. .

CHAPTER ONE

GENERAL INTRODUCTION

1.1       Background of the study

Al-Maslahah al-Mursalah is a method employed by the jurists and Islamic scholars in dealing

with new issue (al-waqi‟ah) not sanctioned by Allah or His Apostle on its fa


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