narrated by Abdullahi bn Amr, Where the messenger of Allah (SAW) was asked for the meaning of just reason

Evaluating the Utility of Maslahah in Promoting Intergenerational Equity By Tijani Musa Buba Abstract Maslahah mean securing benefits and interest of the society to achieve the welfare and prosperity of such a society by removing harm or evil from the creation. It essentially seeks to preserve the fundamental objective of Islamic law. This work duels on extensive literatures and library research. It analyzes the extent to which the theory of maslahah can be applied to provide effective protection to the environment for the benefit of future generation. The findings are expected to further enrich the understanding of the maslahah theory and its equitable approach to environmental protection in Islam. This work observes that to effectively functionalize the far reaching Islamic sustainable development imperatives. Based on the maslahah concept, Muslim governments must contribute in promulgating international environmental protection laws that are Shari'ah driven and proactive and implement them as well. 1. Introduction Islam in its legislative drive places human welfare (Maslahah of the ummah) at the centre stage objective it seeks to achieve. It strives to achieve this by allowing human being to exploit environmental resources for the satisfaction of their needs within moderate standards possible, but without waste and extravagance which if allowed will result in environmental destruction. This is because environment is the medium which, provide the resources that are being harnessed for the purposes of satisfying human beings and its destruction will deprive both the present and future generations the ability to satisfy their future needs. The need to harness the environmental resources in a moderate manner and based on need, deserves serious consideration in taking decision relating to developmental activities that require the use of natural resources, so as to protect the environment from over exploitation, pollution and hazardous waste beyond the earth s carrying capacity that is being re-injected into the environment so as to conserve the environment for future generations. 1 Though Islam permits development (I mar), but it abhors mischief (fasad), that is environmental destruction. In order to strike a balance between satisfying human needs through development (I mar) and environmental protection (hifz al-biy ah) Allah (SWA) entrusted the natural resources into the custody of man so that man can develop it and satisfy his needs on one hand and protect the natural resources from pollution, destruction and waste so as not prejudice both the present and future generations on the other hand. 2 Thus irrational and unjustified use of resources is condemnable as it amounts to depletion of resources for no useful purpose. This is evident in a hadith narrated by Ahmad and al-nisa i where a bird which was killed for no useful purpose will lay its claim to Allah in the hereafter and say: Oh God! This man has killed me for no purpose and not for any benefit. 3 1 Jalili, A., The Significances of Maslahah Concept and Doctrine of Maqasid (Objectives) al-shari ah in Project Evaluation, the Journal of Mu amalat and Islamic Finance Research, Vol.3, (2006), p.2 2 Jalil, A., op. cit. p.2 3 Sunan Annisa i, No.4451; Muslim, 4816; the meaning of useful purpose can be understood from the Hadith narrated by Abdullahi bn Amr, Where the messenger of Allah (SAW) was asked for the meaning of just reason

This also calls for moderation and efficiency in resource exploitation and utilization which would aid conservation of natural resources for sustainable development. 4 Thus, just like the concept of sustainable development, Islam also requires that balance be stroked between development I mar and environmental protection (hifz al-biy ah). This is to achieve human wellbeing (maslahah) of both the present and succeeding generations. This means that in the pursuit of maslahah of the ummah some levels of moderation shall be maintained. Hence, satisfying the necessaries of life (daruriyat) or need fulfilling goods and services are usually allowed in pursuance of the fundamental objectives of the Shari ah, while amenities (hajiyat) implying goods and services that minimize hardship. On the other hand luxurious goods and services (tahsiniyat) are put under strict scrutiny against irrational exploitation of natural resources in consequence of securing them and the toxic waste that may emanate from them so that it would not overwhelm the anthropogenic carrying capacity of the environment so as to protect the environment from destruction for the benefit of future generations. 5 The need to strike a balance as stated above is otherwise known as the principle of integration in the conventional sense and has received assent in several global declarations and international instruments, but rarely does such declarations carry recognizable norms, value or mechanisms by which the principles of integration can be realized. The mechanisms proposed for striking balance between development and environmental protection is the Environmental Impact Assessment which appears to be less effective. In Islam however, there are ascertainable methods for discerning projects that are sustainable and promote the welfare of the community and those that are destructive to the environment. This is usually ascertained by assessing the impact of the proposed project on the environment prior to its execution in order to determine optimal use of environmental resources in line with the fundamental objectives of Shari ah of securing the needs of the ummah on one hand and environmental protection on the other. 6 In accordance with the concept of Maslahah Islam categorized human needs into three, namely necessaries, amenities and luxuries. It is based on this categorization, vis-à-vis the environmental impact of a project that the permissibility or otherwise of undertaking a project will be assessed. This work will discuss the concept of intergenerational duty in Islam as a glimmer for discussing the doctrine of prioritization of developmental project in accordance with the objectives of Islamic law. In doing so the work will answer such questions as to whether the present generation owe the future generation the duty of preserving the natural stock to enable them satisfy their needs. The work will then lead discussion as to whether environmental protection can be categorized as public interest issue for which private investment can be halted to protect interest of the public. The work will then discuss the concept of Maslahah, and thereafter answer such questions as to whether environmental protection forms part of the fundamental objectives of the Shari ah. The problematic areas will then be highlighted and solutions proffered thereto. 2. The Universality of the Common Good The fundamental criterion for decisions concerning developments in Islam is the realization of the greatest possible good to the creatures as a whole irrespective of their nature. The ultimate aim of the Shari'ah s is the attainment of the universal common good of the creation, for utilisation the animal species, He said you slaughter it and eat it and not cut off its head and throw it aside. See Annisa i No.4354. 4 Chapra, U. M., The Objectives Role and Instruments of Government For the Realisation of the Maqasid al- Shari ah, p. 2 5 Pramanik, A., Islam and Development Revisited with Evidence from Malaysia, Islamic Economic Studies, Vol.10, (2002), p.44 6 Jalil, A., op. cit. p.10

both to the surviving and the future generation. This reflects a conviction that the best interests of all the creatures (species nations, regions, classes, and individuals) are ultimately in harmony and not in conflict. 7 In order to attain this conviction the environment need to be utilized in a sustainable manner which will be achieved through observing moderation in resource utilization for the purpose of satisfying human needs without extravagance. This means resources are used mainly for the benefit of the Ummah under whom other creations depend for their survival. 3. The Concept and Nature of Maslahah Masalih is a plural form of maslahah. 8 The word encompasses benefits and interest which otherwise means cause or a goal that brings benefit and prosperity on one hand and removes 9 harm or evil from the creation on the other. 10 The word has been defined by Al Khawarizmi, as the preservation of the objective in Islamic law. 11 It has also been defined as the consideration which secures the benefits or prevents harms and is at the same time harmonious with the aim of Shari ah. 12 Ibn Ashur describes Maslahah as the utmost righteousness and goodness through acts which always benefits the public or individual. 13 Muslim Jurist laid down some criteria for the acceptability of Maslahah as a legislative tool as the following: (i) Maslahah must conform to the Shari ah tenets, and make religion its focal point; (ii) The nature of an act and its resultant consequences shall be the determining factor of the goodness or evil nature of an act. For the foregoing it calls for comprehensive historic scrutiny of human acts and the consequences they had for human welfare; and (iii) Scrutiny based on indebt knowledge of experts in the specific fields along Muslim jurists who shall provide the necessary religious expertise is necessary to identify a Maslahah. The combined analysis of the above definitions clearly indicates that prevention of evil is part of Maslahah. Indeed prevention of evil takes precedence over realization of benefit. Hence this form part of the Shari ah objectives, as the main concern of Maslahah is to protect the people. 14 Several verses of the Holy Qur an justify the application of Maslahah as a legislative concept. The following depicts such a connotation: (i). Allah does not wish to place any burden upon you; He only wishes to cleanse you and perfect His favor upon you so that you may be grateful. 15 (ii). Verily, this is My way, leading straight, so follow it, and do not follow (other) paths for they will scatter you about from His (great) path. Thus does He command you that you may be righteous. 16 (iii). We have not sent you but as a mercy for all creatures. 17 (iv). And He has imposed no difficulties in your religion. 18 Through the Sunnah, the numbers of evidence are as follows: 7 Llewellyn, O. A., op. cit.p.39 8 Ibid 9 Ibid 10 Ibid 11 Ibid 12 Ibid 13 Ibn Ashur (2006) R A Roni, M T al-tokhid the Application of Maslahah Concept in Information Technology Governance 3rd International Conference on Business and Economic Research ( 3rd ICBER 2012 ) Proceeding 12-13 March 2012. Bandung, Indonesia. WEBSITE: www.internationalconference.com.my p. 2457 14 R A Roni, M T., op. cit. p.2457 15 Qur an, 5:6 16 Qur an: 6:153. 17 Qur an, 21:107 18 Qur an, 22:78; R A Roni, op. cit. p.2458

(i). Whenever the Prophet (pbuh) had a choice between two alternatives, he would always choose the easier of the two, as long as it did not amount to a sin. 19 (ii). Allah loves to see His concessions (rukhsah) being observed, just as He loves to see His strict laws being observed. 20 Through these provisions, it is clearly seen that Shari ah is mercy for all creatures, including mankind. The Shari ah rules which contain obligations and duties bring benefit, prosperity and benefit to the Ummah and prevent them from harm and hardship. In addition, the provisions sanction adjustment of rules in consideration of necessity, which confirms the comprehensiveness of the Shari ah and its flexibility, which affirms its suitability for all situations, events, times and places. Thus, its true objectives and roles are to provide mercy and facility to humankind by safeguarding their best interests and protecting them from all forms of evil or harm. 21 From the Usul al-fiqh books, there are various methods to classify the Maslahah. It may be based on its legitimacy. Maslahah which is upheld and support by Quran and Sunnah is called accredited Maslahah, or maslahah mu tabarah. The opposite is called invalidated Maslahah or Maslahah Mulghah. If accredited maslahah must be upheld, invalidated Maslahah or Maslahah mulghah must be rejected. Nearest example is the legitimation of usury by people but it is illegal and nullified by Quran and the Sunnah. Hence, it is not acceptable and shall remain illegal in Islam; the practice by the people is immaterial. Another form is Maslahah mursalah. It may not be clearly stated in the Quran, or could be the Qur an or Sunnah is silent about it, but the action is acceptable due to the fact that it is still contribute to benefits to human kind and avoid harm. Example is like the traffic law. 22 Maslahah could be based on its coverage, whether it may benefits the majority or the whole Ummah, or it may only benefits individual. Example of valid public interest is the saving property from flood of unfair contracts. Another classification of Maslahah may be based on its dynamic character (subject to change or permanence). It means that the changes are due to time, people, place and custom, or are fixed over time. The meaning of changes here is if the Maslahah change, the Islamic ruling based on that particular Maslahah is also change. On the flip side, fixed Maslahah is not based on custom, but on the provisions of Qur an and Sunnah. 23 It could also be classified on its strength. Presumed Maslahah or Maslahah Zanniyah is a Maslahah identified by human intellect, prior to the reference to Shari ah for validation and acceptance. On the other hand, legitimate Maslahah or Maslahah Qat iyyah is the Maslahah that has been approved by Shari ah with clear support of the primary sources. 24 This paper will focus on the classification suggested by Al- Shatibi. He classified Maslahah based on its weight namely, essentials (darurriyat), needs (hajiyyat) and embellishment (Tahsiniyyat). 4. Al-Masalih Al-Daruriyyah (Essentials) The first level of Maslahah is that of essentials. It is defined as those activities and things that are essential to the preservation of the five foundations of individual and social life according to Islam. These are religion, life, intellectual, lineage and property. 25 These five foundations are as imperative as it is considered to be the fundamental needs of human kind and to sustain 19 ZA Al-Zabidi, (Tr) 'Translation and Commentary on Sahih al-bukhari', Al-Sharif, M. M., (ed.), (3 rd edn., Dar al-kotob Al- Ilmiyah, 2009) p.312 20 Bukhari op. cit. p.218 21 R A Roni, M T Al-Tokhid op. cit. p.2458 22 Ibid 23 Ibid 24 Ibid 25 Abdulaah Jalil 2006

harmony in the world. In otherwords, this level of Maslahah is for the proper function of religion belief and everyday affairs like the essentials of food and shelters. 26 5. Al-Masalih al-hajiyyat (Conveniences) This category supplements that of the essentials. It comprises all activities and things that are not vital to the preservation of the five foundations mentioned above, but are necessary to ease and improve the better life and to minimize the hardship. Though it may not cause a total disruption of human life, still its neglect will create unstable human life and the social order may not function well. Example of hajiyyat may refer to the permissible of deferred payment in business transaction (Istisna ). It may not be a normal attribute of sales, but having it will ease the buyer and by not practicing it may lead to hardship in trade. 27 6. Al-Masalih al-tahsiniyyat (Embellishment): The final classification refers to the interest, if they are realized, would lead to refinement and perfection of human life. Al-Ghazali defines embellishment as the element that facilitating the achievement of virtues and fine ways in manners and dealings. On the other hand, Ibn Ashur added, Thasiniyyat comprises of things that led to perfection on community s condition and social order so that it leads a peaceful life and realizes the splendor and beauty of human society in the sight of nations. Example of embellishment would be the encouragement of charity by Shari ah. This will further help those in the needs, a part of the zakkah distribution, fair dealing, gentleness and kindness in treating others. 28 The concept of Maslahah and the doctrine of Shari ah objectives are quite similar at the first glance. However, in a more detailed analysis, the two concepts are actually complementing and interdependent of each other. The Shari ah objectives doctrine is related with the protection of the human basic elements while Maslahah is the level of protection of those elements. 29 In contemporary secular planning, costs and benefits are largely measured and weighed in the language of financial profit and loss. Planning according to the objectives of Islamic law, however, must maximize total benefits or masalih, and minimize total costs or mafasid. Here the concepts of masalih and mafasid are not precisely equivalent to western ideas of benefits and costs. Actions must be evaluated in terms of their consequences with regard to all of the absolute necessities (daruriyat: religion and morality, life, reason, posterity, and property), and all social needs (hajiyat), and requirements for the perfection of ethics and honour (tahsiniyat), as these complement and preserve the absolute necessities. In this context, it is clear that Islamic law requires that the lives, sanity, and maintenance of all created beings must be taken into account, and that the posterity of all species be carefully preserved. 30 However, a more complete and accurate means of assessing effects on all creatures, outside the cost/benefit criterion has not yet been brought to limelight from the conventional perspective. Maslahah however, requires that where a development activity that involves the use and managing scarce resources such as water and arable land, the fauna and the flora are being undertaken. Environmental decision making should not be hinged on financial benefits only. While financial viability must be vigorously pursued, other social benefits must also be taken into account. This is because public need takes precedence over private interests, especially in the context of the Islamic law that "the repelling of evil takes precedence over the acquisition of benefits" which essentially subordinates pure utilitarian economic and political benefits to the 26 ibid p.2459 27 ibid 28 Ibid P. 2460 29 Ibid 30 Ibid

requirements of ethics and social justice. 31 This is especially so, that preservation of environmental balance constitutes a public benefit as the environment houses all the natural resources required for human development. Indeed environmental degradation in pursuit of developmental goals of the present generation is seems to pose serious developmental challenges to the future generations. 7. Concept of Intergenerational Duty in Islam The concept of sustainable development has triggered debate on the issue of equity in the distribution of natural resources among successive generations. This means that the present generation should maintain a balance in the exploitation and consumption of resources, in other to avoid scarcity of natural resources that are essential for development (I mar) to satisfy the needs of future generations. 32 In Islam, there is an invitation for brotherhood between generations, which lay the basis for intergenerational responsibility. 12 For example the Qur an has highlighted such an instance signifying the bond between the succeeding generations of human beings. The idea of conserving the environment for the benefit of future generation is clearly discernable from the statement of Umar (RA) when he said But not for the future generations, I would have distributed the land of the villages I conquer among the soldiers as the Prophet (SAW) did in Khaibar. 33 The bond created in the foregoing Hadith has enshrined a reciprocal duty on the present generation to preserve the medium, by which the succeeding generations can attain their needs most especially the basic life support needs. This medium is essentially housed in the environment that provides the natural stock needed to foster development. Development in this sense is not narrowed to physical development for the purpose of satisfying physical needs, also those spiritual duties imposed on human beings within the context of the fundamental objectives of Islamic law. For instance it is rudimentary to mention that for any spiritual duty to be discharged clean water which is a natural resource is necessary. It can be understood therefore that, religion which is one of the fundamental objectives of the Shari ah, is so intimately tied to the environment and cannot be conveniently discharged in an environment ridden by pollution. It behooves on the present generation to protect the environment which is the medium through which the said duty can be realized. This is the basis for putting emphasis on equity between successive generations in Islam. 34 8. Private Property Right and Public Interest One of the fundamental beliefs in Islam which no Muslim deviates away from is that Allah is the creator and ultimate owner of all things and human beings are trustees of the things that are in their possession. They are therefore under an obligation to manage them in accordance with the will of their Sustainer for the greatest good to all creatures. 35 One of the objectives for which Allah created these things is for the sustenance of his creature and welfare of human beings. In order achieve the forgoing objective Allah ordained that environmental balance should be maintained. However, human beings enjoy the rights of usufruct in the property with which they are entrusted. 36 The right of men and women to private property is established to safeguard the individual's full freedom for creative and beneficial use of property. The permissibility in 31 Llewellyn, O. A., op. cit p.39 32 Yousri, A. A. (2005). Sustainable Development: An Evaluation of Conventional and Islamic Perspectives, M. Iqbal (Ed.), Islamic Perspectives on Sustainable Development, United Kingdom: Palgrave Macmillan, pp. 22 51at p.9 33 ZA Al-Zabidi, (Tr) 'Translation and Commentary on Sahih al-bukhari', Al-Sharif, M. M., (ed.), (3 rd edn., Dar al-kotob Al- Ilmiyah, 2009) Book 39, Hadith No.527 34 Yousri, A., op cit. p.10 35 Qur'an 80:32 36 Llewellyn, O. A., Islamic Jurisprudence and Environmental, J. Planning Res. Islamic Econ., Vol. 1, No. 2, pp. 27-46 (1404/1984) p.40

Islam for an individual to privately own property seems to a means (dhariyyah) to environmental destruction. This right has however not been left unchecked as the state authority can revoke any for a clear public need or in a clear case of misuse or mistreatment. 37 The exercise of private property rights is thus circumscribed to greater needs of the community, and the individual is emphatically forbidden to use his property in ways that results in clear harm to the society or Allah's creation as a whole, according to the Islamic principles of social solidarity (takaful). 38 This also shows that the owner does not have an absolute right of disposal over his property in a manner that is inimical to the purpose for which that thing was created. The Shari'ah particularly limits his right of disposal with regard to living things. He is for instance forbidden from maltreating his animals or killing them except for justifiable purpose and should also do so using proper methods. 39 Other important limitations on private property rights concern easements, protection of women's privacy with regard to the design of buildings and placement of windows and abhor land reclamation where its results would be injurious to the public. 40 9. Maslahah and its Role in Preserving the Fundamental objectives of Shari ah Maslahah is derived it root from the word salahah which literally means good, uncorrupt, sound, right or proper state affairs. Salahah or Islah refers to a state of equilibrium where things are in a proper order and balance. It is literally defined as benefit or interest. 41 On the other hand fasad which is the opposite of islah signifies a state of disorder, or disturbance, or destruction or annihilation or waste or ruin. 42 Scholars have also used evil (sharr) and harm (darar) as synonymous with mafsadah. Maslahah is one of the juristic devices that have been used in Islamic legal theory to promote public benefit and prevent social evil or corruption, its main object is to protect and promote human wellbeing. 43 In light of the foregoing objectives rules formulated based on maslahah must take into account public interest and welfare with particular focus on achieving the fundamental objectives of the Shari ah based on tenable Islamic legal principles. 44 Imam Malik set out the following where Masalahah is to be employed: 1. It can only be employed in non-devotional matter i.e. mu amalat, where reasoning through rational thinking is in evitable. Devotional matters are strictly regulated by clear injunctions from the Qur an and Sunnah. 2. What is arrived at, which is perceived to be in the best interest of the ummah should be in harmony with the spirit and tenets of Shari ah (maqasid al- Shari ah). 3. The juristic exercise wherein the concept of maslahah is employed shall relate to daruriyyat (necessaries) and not tahsiniyyat (embellishments). 45 37 Ibid 38 Ibid 39 Ibid 40 Llewellyn, O. A., op. cit. p.42 41 Al- Allaf, M., Islamic Devine Law (Shari ah) The Objectives of the Islamic Devine Law or Maqasid Theory, p.2 42 Saleem, M. Y., Methods and Methodologies in Fiqh and Islamic Economics, p.13 43 Dasuki, A. W., Challenges of Realising Maqasid al-shari ah (Objectives of Shari ah) in Islamic Capital Market Special Forum on Equity Based Sukuk, Keynote Adress Delivered at the 3 rd USM-ISDEV International Islamic Management Conference Organised by Centre for Islamic Management Studies University of Sains Malaysia, 28-29 October, (2009), p.5; Kamali, M. H., (1999), Maqasid Al-Shari ah: The Objectives of Islamic Law, Islamic Studies, Vol.38, at pp.193-194. 44 Dasuki, A. W., op. cit., p.5 45 Mahmassani, S. R., The Philosophy of Jurisprudence in Islam, (Kuala Lmpur, Open Press, 2000), pp.87-89

Conversely, Maqasid al-shari ah has been defined by Ibn Ashur as the observed meanings and wisdoms in every Shari ah rulings or most of them, whereby their observation prove that they are not specific to a type of Shari ah rulings. 46 From the foregoing it can be understood that Shari ah legislation generally aims at attaining human welfare, advantage or benefits by promoting sustainable development to satisfy human needs and ward off of evil, injury or loss against human being. 47 Ibn Ashur argues that numerous textual proofs confirm the fact that removal of corruption (dar al-mafasid) and acquisition of benefit (jalb al-maslahah) are the basis of the fundamental objectives of Shari ah. 48 Scholars further argue that any measure that prevents a mafsadah is in line with the objectives of Shari ah even if the later does not provide any indication as to its validity or otherwise provided that, it should not turn a prohibited thing into a lawful one. 49 Maslahah is classified into the following three categories: a) Daruriyyat (Necessities): Necessities mean ardent needs. 50 It is defined as those goods and services that are essential to the preservation of the five fundamentals considered by the Shari ah as basic needs of every individual without which his ability to survive cannot be guaranteed. It also includes crucial social welfare needs of members of a community. These include the above mentioned five fundamentals Islam seeks to protect and preserve. Realizing these fundamentals is necessary for any meaningful sustainable development. 51 Therefore anything that is necessary for achieving these fundamental objectives is also necessary even if it is at the expense of the environment. It is well settled Islamic law principle that necessity permits the forbidden (addarurat tubihul mahdzurat). 52 b) Hajiyyat (amenities): This category comprises those goods and services that are vital in ameliorating untold hardship in achieving the above mentioned five fundamental objectives. The bottom line here is that achieving the objectives is not primarily anchored on the hajiyats, but as stated earlier the hajiyats ameliorate their attainment. Thus goods and services in this category promote and supplement the Necessities and their neglect leads to hardship but not to the total disruption of normal life for if lack of such goods and services will lead to disruption of normal life, then it is a necessary. c) Tahsiniyyat (luxuries): The luxuries refers to those goods and services that go beyond the limits of amenities and whose realisation leads to attainment of the kind of life which is luxurious in nature such as jewellery, innocent hobbies, politeness in behaviour and speech, Islamic etiquette in cleanliness, etc. However maqasid are further categorized into maqasid that are; primary (asliyyah) or secondary (tabi iyyah). Primary (asliyyah maqasid) are essential in nature which must be protected regardless of predilection. In such a situation some considerations like some extent of environmental damage may be overlooked. Whereas the secondary (maqasid tabi iyyah), are those that leave the mukallaf with some leverage for choices to be made. In this case 46 Jalil, A., op. cit., p.5 47 Qur an 2:107 and 10:57 48 Jalil, A., op. cit. p.22 49 Saleem, M. Y., op. cit p.13; Qur an 5:6 and 2:185 50 Dasuki, A. W., op. cit. p.23 51 These include those things that guarantee the practice of religion be they natural resources like water, clean playing ground, closes to cover the private part to mention a few or any other thing as well as those things that sustain life. So also those things that are necessary for the preservation of the intellect and development of the brain such as schools and qualified teachers and trainers as well as those things that sustain the continuity of human existence such as hospitals and midwives as well as those things that protect and preserve wealth such as security and protective homes also form part of the necessaries of life. 52 Dasuki, A. W., op. cit., p.23

environmental consideration must be taken into account in decision making. Here precaution must be taken so as not to cause irreversible harm to the environment. This makes it imperative that the impact of the activity leading to the production of the goods and services that constitute the secondary maqasid (maqasid tabi yyah) on the environment must be ascertained to determine their sustainability. 53 This is because whatever that would lead to averting harm in a society is obligatory on the authority to act on as much as averting the harm itself. 54 This position is further fortified by the Islamic legal maxim which says that averting harm takes precedence over securing benefit expressed in Arabic as daf ul madarr awla min jalbil manafi. Qardawi identifies conservation of the natural environment (hifz al-bay ah) as an extension of the objectives of Shari ah, namely the protection of life (hifz al-nafs), and he elaborates that environmental pollution, resource depletion, and disturbance of its ecological balance constitute major threats to human life and safety. 55 This indeed shows that environmental protection takes precedence over production of goods and services unless such goods and services belongs to the category of necessaries in which case both the production of such goods and services on the one hand and the environmental protection on the other amounts to averting harm. This is because if goods and services that belong to the category of necessaries are not made available, it will lead to destruction of religion, life, intellect, wealth and progeny. Conversely, none of the five fundamental objective mentioned earlier on can be realized in an environment ridden by pollution. 10. Fundamental objectives of the Shari ah Maqasid al- Shari ah means the objectives of the Islamic law. 56 The objectives of Islamic law can be seen from provisions in the Islamic law sources concerning the issue being considered, as many Shari ah texts state the rationale behind these objectives. 57 These objectives are generally discerned from the combined reading of the Islamic law texts on the subject matter under consideration. The combined reading generally aid interpretation of the texts and helps in achieving the intendment of the law giver. Indeed the depth comprehension of the objectives of the Shari ah is important for analogical reasoning and aids flexibility, definition and creativity in social policy formulation. 58 The main objective of Shari ah is to develop human being both materially and spiritually and to promote his wellbeing or maslahah, towards achieving its five fundamental objectives. 59 They are: a) Religion (Al-Din): Protection of al-din in the environmental perspective consists of preserving the environment component essential for carrying out sacred religious obligation. For instance clean water is necessary for carrying out essential religious obligation such as ablution, bath, washing dirty clothes. 60 It needs no mention that water that is polluted by industrial waste cannot be used to perform such ablution or taking bath or washing dirty 53 Kamali, M. H., (1999), Maqasid al-shari ah: The Objectives of Islamic law, available at http://www.sunniforum.com/forum/showthread.php...maqasid-al-shariah-the-objectives-of-islamic-law accessed on 23/9/2012 p.193 54 Chapra, U. M., op. cit. p.6 55 Kamali, M. H., Environmental Care in Islam: A Qur anic Perspective Paper presented at the International Conference on Environment in Islam, Organised by the Aal al-bayt Foundation for Islamic Thought, Amman, Jordan, 27-29 September 2010, p.21 56 Dasuki, A. W., op. cit., p.2 57 For example Qur an 2:179 and 5:91 58 Dasuki, A. W., op. cit., p.5 59 Ibid 60 Ibnu Rajab, A S A., Jami al-ulum wal Hikam, Commentary on Fifty Hadith, (Cairo, Dar al-fikr, N.D.) p.185, Hadith No. 25, where the Prophet (SAW) described cleanliness as half of faith. Cleanliness here mean cleaning oneself from; Janaba, menstruation, performing ablution before any act of Ibadah or being on ablution at all times.

clothes. 61 It is cardinal principle of Islamic law that an unclean person cannot perform spiritual obligations such as prayer, hajj or recitation of the Qur an and other similar religious duties. Similarly one cannot also pray in a place that is ridden by pollution as prayer requires a clean place. b) Life (Al Nafs): There are many verses in al-qur an that prohibit killing nafs. Protection of life in Islam against destruction is necessary whether such destruction is by physical means such as physical combat or through other means such as environmental pollution. It needs no mention that environmental pollution is responsible for several catastrophes that cause destruction of life and property beside the health hazard that cause loss of life and permanent disabilities which is reprehensible in Islam. c) Intellect or Mind (Al- Aql): Protection of Intellect or Mind (Al- Aql). 62 Intellect is an indispensable tool for human development as it is the engine room for ideas and conceptions. It is responsible for all innovations that help in achieving development, be it human capital development or other facets of development that promotes human welfare and social development. It is also responsible for finding solutions to human problems. Environmental pollution most often results in health hazard and cancer, that include brain cancer and other neurology diseases that cause infirmity of the mind. Pollution not only causes diseases that affect the mind but also retard educational advancement and hinder intellectual development which is essential to any sustainable development stride and constitutes one of the fundamental objectives of the Shari ah. d) Property (Al-Mal): Protection of Property (hifz all-mal) is cardinal to sustainable development and peaceable enjoyment of wealth. In consonance with Islam s notion of encouraging its followers to acquire wealth for sustainable development, it by the same talking require protection of the environment less that environmental abuse causes catastrophes that will engulf the wealth thus acquired. Thus environmental protection forms part of the prerequisites for protection of wealth. For that Islam emphasizes the importance of weighting development activities from both the material and moral angle with the aim of satisfying the needs of the present protecting the wealth of the present generation from destruction as a result of catastrophes caused by environmental abuse and also preserving the environment for the future generations to also satisfy their needs. 63 Hence destruction of wealth due to neglect, such as letting an animal die of hunger or disease, or neglecting crop to waste or letting farm land or houses to deteriorate due to prolonged neglect or through irrational exploitation of the environment, fall under loss of valuable assets (ida at al-maal) that violates the Shari ah tenets, more particularly its fundamental objective (maqsid al- Shari ah), of protection of property (hizf al-maal). 64 e) Progeny (Nasl): Protection of the progeny (hifz al-nasl) Islam regulates the relationship between men and women in order protect human progeny. For this it prohibits zina so no one's linage will be interfered with. 65 Legitimate marriage has thus been ordained, and all forms of sexual relationship outside marriage have been proscribed. Although offspring could still be born even if fail to marry and establish family leanages according to the rules of Shari a. 66 Both human being and animals form part of the environment and their protection is 61 Ibrahim, P., Basir, S. A. and Ab Rahman, Asmak, Sustainable Development: Concepts, Principles and Management from Islamic Perspective, European Journal of Social Sciences Volume 24, Number 3 (2011)p.334 62 Ibrahim, P., et. al, op. cit. p.334 63 Quran 2:188 64 Kamali, M. H., op. cit. p.23 65 Ibrahim, P., Sustainable Economic Development: Concepts, Principles and Management From Islamic Perspective, European Journal of Social Sciences, Vol.24, (2011) p.333 66 MA Al-Salami, Al-Qiyas and its Modern Application, MH Kamali, (tr.) (Eminent Scholars Lecture Series, IRTI, IDB, 1415AH) P. 94

ordained by the Shari'ah. The protection of offspring (al-nasl) includes what Allah has ordained with regard to procreation, and complete preservation of lineage all species of the environment. This include the protection of the fauna, the flora and biodiversity so as to ensure the protection and sustainability of all the species of the environment. Generally speaking while the western conception of sustainable development currently recognize the trusteeship duty of the present generation to conserve the environment in a sustainable matter for the benefit of the future generation, it fail to recognise the need to curtail unreasonable exploitation of the environment by categorizing development activities according to human needs such as the one accentuated by the maslahah concept. 67 This is because international instruments concentrated mainly on the economic dimensions of sustainable development neglecting its human dimension that requires that the needs of the global poor be satisfied amid environmental protection. The western approach to this integration effort is to by tailoring the environment aspects to fit in within the economic paradigm. 68 11. Environmental Destruction as Hindrance to Attainment of the Fundamental Objectives of Shari ah Islamic Scholars unanimously agree on the five elements as mentioned above as the fundamental objectives of Islamic law (maqasid al-shari'ah); protection of religion, life, intellect, progeny, and property. 69 The mother earth can safely be said to house the entire prerequisite for achieving the said fundamental objectives. 70 Hence for effective realization of the objectives, the environment must be protected from destruction. This is because if the environmental is not protected, the actualization of the objectives would be impracticable. 71 This is supported by the Islamic legal maxim: whatever is indispensable for the performance of an obligation is also obligatory. It would be superfluous to state that an environment that is ridden by pollution would lead to destruction of life, property, intellect, progeny and ultimately religion as earlier discussed and anything that hinders the realization of such objectives would be regarded as mafsadah which the Shari ah seeks to ward off. For example excessive pollution might lead to sterility, deformities, abortion and chronic diseases that may hinder human progression (Iysal al-nasl). Certain environmental hazards such as radiation may destroy the brain by causing brain tumor and bar effective human intellectual development which is essential to sustainable development. More common phenomenon that needs no mention is the disasters that occur most often and which is the direct result of human interference with the environment. These disasters cause destruction of lives and properties. 72 All these fundamental objectives especially protection of property may not be attained in highly polluted environment, for pollution cause catastrophes that destroy property and adversely affects the attainment of fundamental objectives of the Shari ah especially where it destroy homes and places of worship. 73 To functionalize these far reaching Islamic sustainable development imperatives, Muslim governments that also form part of the global community must contribute in promulgating international environmental protection laws that are Shari'ah driven and proactive and also implement them. 67 Mbote, P.K., and Cullet, p 68 Environmental Justice of Social Development Integrating Communities Environmental Management IECRC (International Law Research Centre) Working Paper 1996-7 http://www.iecrc.org/content/109601pdf. 69 Abu Sway op. cit., p.20 70 Ibid 71 Ibid 72 Saleem, M. Y., op. cit., p.5 73 Abu sway op. cit., p.20

12. Islamic Tenets for Sustainable Utilisation of Environmental Resources The conventional concept of sustainable development as the profitability of a development activity is most often the basis of undertaking such activity. While environmental considerations are rarely taken into account, the social component of a development activity is most often ignored. In Islam however the three categories mentioned earlier viz; Necessities (Daruriyyat), Amenities (Hajiyyat) and Luxuries (Tahsiniyyat) form the crucial basis upon which development activities are considered to be sustainable or otherwise. Necessities are generally given more weight than activities that lead to the production of amenities and luxuries. The criteria for reviewing activities that lead to production of necessaries are lower than those for the production of amenities and luxuries. The determining factors in Shari'ah is the benefits (maslahah) that accrues to the public vis-à-vis the extent of environmental destruction that is occasioned resulting from carrying out such activity. 74 This is important in distinguishing between public (maslahah ammah) and individual (maslahah khassah) interest associated with the activity. Where is a conflict arises between public and private interest as in the case where the individual will reap a huge profit, but the community will suffer a serious environmental damage for instance loss of life and properties, the individual interest give way to the public interest based on the maxim that, Individual loss (or damage) is tolerated to ward off public loss (or damage). Instances that may be readily remembered include the recent Fukushima Japan nuclear reactor accident resulting from tsunami wave as result of rise in sea levels where several people died. 75 Other environmental disasters such as the I984, methyl isocyanate gas leakage from a plant at Bhopal, India resulted in the dead of about 2000 people and others injured. In I986, an explosion at the Chernobyl nuclear reactor in Ukraine caused deaths as a result of radiation and released radioactive material that drifted as far as the United States. 76 Later that year, fire hoses used to combat a Swiss warehouse blaze eroded thirty tons of chemicals into the Rhine River, and caused serious environmental related hazards. Integrating the Maslahah into the international framework for the assessment of development activities would go a long way in mitigating the conflicts between individual (private) and public preferences and gives better protection to the environment for sustainable development. 77 The suggested framework simply integrates the best elements of both Islamic and mainstream conventional practices for optimal achievement of sustainable development and environmental protection for the benefit of the future generations. 13. Restraint against Extravagance (Al-Israf and al-tabdhir) in Resource Utilisation Another significance significant aspect of maslahah as tool for environmental protection is that only development activity that fall under the three categories of maslahah should be pursued. A development activity that does not fall within the categories mentioned above is classified into two main categories of al-israf and at-tabdhir. 1. Al-Israf: This refers to the act of spending or investing in permissible (halal) but the investment or spending is done in a wasteful manner. This include self-indulgence (al-talaf) or living in an uneven luxury. 74 Jalil, A., op. cit. p.22 75 Cleaning up of the nuclear materials as a result of the said accident is said to cost about S 20 billion, NTA on 8/11/2012 @ 9.00 pm. 76 'Developments in the Law: International Environmental Law', (1991) 104 Harvard Law Review, <http://www.jstor.org/stable/1341598> Accessed: 29/09/2011 23:44. P.1491 For example, as early as 1927, the United States and Canada had a dispute over the damage caused by a private smelting operation in British Columbia to crops in the state of Washington popularly known as the Trail Smelter Case United States v. Canada, (1938) 3 R. Int'l Arb. Awards 1911 77 ibid

2. Al-Tabdhir is defined as any disbursement or investment in unlawful (haram) or unjustifiable activities. Similarly, spending on needs that does not form part of the necessaries in the in the face of needs that belong to the necessary categories is perceived as an act of al-tabdhir. 78 This does not mean that niggardliness is permitted in Islam. 79 On the contrary developmental activities that are sustainable and foster maslahah of the ummah are encourage in Islam with the aim of satisfying the needs of the ummah and securing their wellbeing (maslahah). Thus sustainable development is that development that secures the wellbeing of the ummah within the carrying capacity of the environment and without extravagance, wastage or destruction. Where the ummah fail to utilise the available natural resources to satisfy its needs and secure its well being (maslahah), the act is considered to be an act of niggardliness (al-taqtir). Al-Taqtir is a sort of stinginess (bukhl) which is condemned by the Prophet PBUH. 80 Development activities that fall under these two categories are classified as either reprehensible (makruh) or forbidden (haram) depending on the nature of the activity from the Islamic point of view. The instances of activities that fall under these categories include forbidden activities such as riba, gambling, non-halal goods or services. 81 14. Role of Maslahah in Environmental Protection for the Benefit of Future Generations As earlier discussed, Islamic Scholars have designed an integrated process that balanced the desire to satisfy human needs and maintain environmental balance based on the concept of maslahah for the benefit of future generations. Thus development activities are classified according to their prospects for satisfying human needs as discussed above. This classification is done taking into consideration the weight attached to such needs by the Shari ah. In consequence of the above classification, human need consisting of necessaries such as food, shelter and defence are given priority over other needs. This is followed by projects that ameliorate hardship in the securing and preservation of the necessaries and this class of needs are known as the amenities. Thereafter comes the third category that is projects that improves quality of life and introduces better facilities and pleasure. 82 The incorporation of the concept of maslahah doctrine would greatly improve the conventional methods of project evaluation and make it more realistic in achieving sustainable development. The purpose of incorporating the maslahah doctrine into the concept of project evaluation is to ensure that the selected project would help in satisfying the needs of the global poor which is the underlying objectives of both the concept of maslahah and sustainable development by promoting projects that are environmental friendly and thus sustainable because it would help in achieving intergenerational equity. The maslahah doctrine allow for assessment of development activities based on the qualitative analysis. The analysis will bar any activity that involve forbidden things such as riba, gambling, non-halal goods and services such as liquor, pork etc which in no way assist in satisfying the needs of global poor, but only results in environmental destruction by dedicating scarce resources to purpose that are not beneficial to human being be they poor or 78 Qur an 17:26-27, Al-Masri, R. Y., Usul al-iqtisad al-islamiyyah, (Lebanon: Beirut, Dar al-shamiyyah 1999), p.21 gives a slightly different definition of al-israf and al-tabdhir. According to him, alisraf is spending in haram even in a small amount or spending in halal but excessive. Al-tabdhir is a situation worse than alisraf., e.g., spending in haram in a big amount. 79 Qur an 17:29 80 Jalil, A., op. cit. p.14;qur an 57: 711 81 Jalil, A., op. cit. p.14 82 Kahf, M., op. cit., p.20