A Ground for Ruling the Texts Never Named

Al masalih al mursala, unrestricted public interests, names a source of law used when neither a specific text nor an established analogy addresses a case directly, but a ruling can still be reached by appeal to the general aims the shari'a is understood to protect: life, religion, lineage, intellect and property. Mohammad Hashim Kamali's textbook on Islamic jurisprudence identifies the doctrine as most closely associated with the Maliki school, tracing its roots to positions attributed to Malik ibn Anas himself and its later systematic development, centuries afterward, in al Shatibi's theory of the maqasid, the higher objectives of the law. The doctrine differs from istihsan in its reasoning even where the two overlap in effect: istihsan sets aside one specific analogy in favor of a stronger consideration in a particular case, while istislah, the exercise of masalih mursala, reasons more broadly from the law's overall purposes toward a new ruling with no directly competing analogy to displace. Wael Hallaq's study of shari'a notes that both doctrines drew the same suspicion from jurists who worried that either one, loosely applied, could let a jurist's own sense of what serves the community stand in for what the revealed texts actually say.