Abstract

At present, almost all the legal systems are concerned with establishing a flexible interpretive policy to make the law to resolve the everyday complex issues for the benefit of the people at large. It is, however, a matter of great concern that the higher courts in Pakistan are still following static and foreign interpretive modes like a literal rule, the golden rule, and mischief rule etc, in the presence of dynamic interpretive principles of Islam. In this context, this research aims to analyze critically, the mischief rule and to present maslahah, a vibrant Islamic interpretive principle. This article argues that the Holy Prophet (SAW), his companions and the traditional Muslim jurists had to decide the contemporary issues by the way of maṣlaḥah which led to the development of Islamic jurisprudence and resulted in the ease of the people. While interpretive rules of English common law are static and have become outdated. This research, thus, concludes that unlike mischief rule, maslaha is more flexible and favorable by Islam for resolving the present-day socio-economic issues of the people. It recommends the higher courts of Pakistan to follow the principle of maṣlaḥah during the process of interpretation. It is also acclaimed that the Renaissance of this vibrant principle of ijtihād would be a revival of the interpretive policy of the Prophet (SAW), his companions and the traditional Muslim jurists. It would also lead to the development of Islamic jurisprudence in the light of changed context.

Highlights

  • The law is considered a living phenomenon and a necessary component of every legal system which is composed of language, religion, customs, culture and legal rules of a society and aims a purposeful enterprise. 1 The instrument of law is used to regulate the conduct of the people and to resolve the socioeconomic, public and private, civil and criminal issues of the people.2JOURNAL OF ISLAMIC THOUGHT AND CIVILIZATION Volume 11 Issue 1, Spring 2021 RaziA Comparative Study of Maṣlaḥah and Mischief RuleThe process through which the continuity of a living law is ensured is called interpretation.3 This subject, has been facing daunting challenges regarding the development of such policy which ensures public interest and removes the hardship of life

  • Owing to the stagnation and harmful effects of the strict strategy of interpretation, the contemporary jurists and the judges have rejected it and are in search of a flexible interpretive policy suitable to their own culture and society.4. Keeping in view this context, this work aims to have a comparative study between the mischief rule and maslahah in the light of the interpretive policy of the higher courts of Pakistan

  • 1.To inquire into maslahah as a dynamic principle of ijtihād 2.To explore the response of the judicial interpretive system of Pakistan towards maslahah 3.To compare maslahah with mischief rule to explore the flexibility and applicability of each. 4.To draw the attention of the judiciary of Pakistan towards maslahah as a dynamic principle of ijtihād 5.To draw some conclusions and to put forward/propose some recommendations

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Summary

Introduction

The law is considered a living phenomenon and a necessary component of every legal system which is composed of language, religion, customs, culture and legal rules of a society and aims a purposeful enterprise. 1 The instrument of law is used to regulate the conduct of the people and to resolve the socioeconomic, public and private, civil and criminal issues of the people.2JOURNAL OF ISLAMIC THOUGHT AND CIVILIZATION Volume 11 Issue 1, Spring 2021 RaziA Comparative Study of Maṣlaḥah and Mischief RuleThe process through which the continuity of a living law is ensured is called interpretation. This subject, has been facing daunting challenges regarding the development of such policy which ensures public interest and removes the hardship of life. The process through which the continuity of a living law is ensured is called interpretation.3 This subject, has been facing daunting challenges regarding the development of such policy which ensures public interest and removes the hardship of life. Owing to the stagnation and harmful effects of the strict strategy of interpretation, the contemporary jurists and the judges have rejected it and are in search of a flexible interpretive policy suitable to their own culture and society.. Owing to the stagnation and harmful effects of the strict strategy of interpretation, the contemporary jurists and the judges have rejected it and are in search of a flexible interpretive policy suitable to their own culture and society.4 Keeping in view this context, this work aims to have a comparative study between the mischief rule and maslahah in the light of the interpretive policy of the higher courts of Pakistan. Some conclusions and recommendations are presented to reform the existing interpretive system of Pakistan in the light of the dynamic principle of maslahah

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