UTILITARIANISM THEORY AND MASLAHAH THEORY (COMPARATIVE STUDY)

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Elis Rahmahwati, Adi Sulistiyono, Burhanudin Harahap

Résumé

Law exists in every society anywhere on this earth. Primitive or modern, a society must have laws. Therefore, the existence of law is universal. Law cannot be separated from society, both have a reciprocal relationship. The purpose of law includes justice, expediency and legal certainty. Utilitarianism is a part of philosophical ethics that began to develop in the 19th century as a critique of the dominance of natural law. As an ethical theory, the theory of utilitarianism was systematically developed by Jeremy Bentham and his student, John Stuart Mill and Rudolf von Jhering. According to them, Utilitarianism is called the greatest happiness theory. In the context of Islam, there is a theory much discussed in legal affairs known as maslahah.  This topic is broadly discussed among several thinkers suc as Imam Al-Syathibi, Al Mawardi, Al Ghazali, Najamuddin Al Thufi, Ibnu Taimiyah, Al Thabathaba’i, Mustafa Zaid and Abdul Wahab Khalaf. These ushul fiqh experts define it as everything that contains benefits, uses, goodness and avoids harm, damage and mafsadah (jalb al-naf'y wa daf' al-dharar). Both utilitarianism and maslahah contain the understanding that the law is made based on or can provide benefits. The theory of utilitarianism aims to provide happiness to the majority of people, while the theory of maslahah aims to protect and maintain the five namely maintaining religion, soul, mind, lineage, and property. The theory of utilitarianism comes from Western law while the theory of maslahah comes from Islamic law. Because the theory of maslahah comes from Islamic law, it cannot be separated from the Qur'an and Sunnah.

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