ABSTRACT

The paper starts by explaining the basic sources of Islamic Law as a background for discussing fiqhi issues in medical practice, fiqh tibbi. It then introduces the theory of Purposes of the Law, maqasid al shari’at, and the principles of the Law, qawa’id al shari’at. 

1.0 SOURCES OF THE LAW, masadir al shariat

1.1 Qur’an as a primary source of law

The Qur'an is 'Allah’s words revealed to Muhammad (PBUH) in Arabic, transmitted to us in continuity, written in the mashaf, whose recitation is worship, commencing with surat al fatihat and ending with surat al nas. Verses of the Qur’an were revealed adhoc each associated with sabab al nuzuul. It was memorized and also written down immediately. Abubakar collected the written records and Othman issued one official version in the Quraishi dialect that is used all over the world.

The Qur’an is practical, rational, and miraculous. Its 3 themes are ‘aqidat, spiritual refinement, and practical guidance. Legal rulings, ayat al ahkaam, are a minority of its more than 6000 verses being distributed munakahaat 70, mu'amalat 70, jinayaat 30, iqtisaad 10 verses, qadha 13 verses, government 10 verses, and international law 25 verses. The Qur’an is comprehensive and complete but deals with issues in a generic and not specific way. Its verses are muhkamat or mutashabihat. It challenges the intellect, does not indoctrinate, and gives room for opposing views.

It is divided into 114 surats. Each surat starts with the basmalah except surat al baraa. It is divided into 30 juz’us each divided into 2 hizbs. Rub'u or thumun are subdivisions of the hizb. The Makkan verses, dealing with aqidat, are short, poetic, and powerful. Madinan verses are longer dealing with details of societal organization.

The prophet read the Qur’an in 7 different ways, The Qur’an can be recited as tartiil or as tajwid. As a source of legislation the Qur’an provides general foundations and principles. Qur'anic evidence for legal rulings is either qatui, or dhanni. The Qur'an is the primary source of law. All other recognized sources are secondary to the Qur'an and are validated by it.

1.2  Sunnat as a primary source of law

Sunnat, a subgroup of hadith and part of wahy, is defined as words, actions, and tacit agreement of the Prophet. A hadith consists of a sanad, and matn. It can be hadith nabawi or hadith qudsi. Writing of hadith started late. Hadith collections are classified as sihaah, sunan, masanid, and muwatta’at. Hadith is described as mutawatir if narrated by many, mash'hur if reported by at least 2, and aahaad if reported by only 1 sahabi. It be tashri'i if legislative or ghayr tashri' if it is not. The grades of hadith authenticity in descending order are: sahiih, jayyid, and hasan. Muttafaq ‘alayhi is reported by both Bukhari and Muslim. Musnad has a chain of narrators to the prophet. Muttasil has an unbroken chain of narrators. The sanad stops at a sahabi in mawquf and at a tabi’e in a marfu’u hadith. In mursal the tabi’e reports directly from the prophet. Munqati’u has an incomplete sanad. Dha’if lacks the attributes of the sahiih and hasan. Sunnat can affirm, explain, or elaborate the Qur'an or bring up matters not mentioned in the Qur’an. Obedience of the prophet implies following his sunnat. The sunnat comes second to the Qur'an as a source of law. The daliil of the sunnat may be definitive, qatai, or probable, dhanni. The sunnat is interpreted in the light of general principles of the Qur'an, the social situation in the prophetic era, and the Arabic language.

1.3 Secondary sources of the Law

Ijma is agreement of all mujtahids existing at one time on a particular legal ruling based on nass. It can be ijma sariih or ijma sukuuti. Qiyas is use of a ruling of one matter for another matter when the two share the same illat. Pre-Islamic laws, shara'u man qablana, were either abrogated or confirmed by the Qur’an. The word of the companion, qawl al sahabi, is a source of law under specified conditions. Custom or precedent, ‘aadat or 'urf, is a source of law if it does not contradict nass, there is ijma on it, and is in the public interest, and closes the door to evil. Istishaab is continuation of an existing ruling until there is evidence to the contrary. Istihsaan is preference for one qiyaas by a mujtahid. Istislaah is assuring a benefit or preventing a harm used in mu’amalat but not ‘ibadat. Maslahat mursalat is public interest based on ra’ay when there is no nass. Sadd al dhari'at is prohibition of an act that is otherwise mubaah because it has a high probability of leading to haram.

2.0 CLASSIFICATION OF REGAL RULINGS:  MEDICAL APPLICATIONS

2.1 Obligatory, waajib

Waajib is the most important legal ruling. The shafi’e school considers waajib the same as faradh. Individual obligations, fardh aini, cannot be delegated.  Performance of a collective obligation, fardh kifai, by any member of the community absolves the rest from sin. However only those with the necessary competence can perform the collective obligations. The rest are not obliged even if they are members of the community.

2.2 Recommended, manduub

Recommended, manduub, is also called sunnat or masnuun, nafilat, mustahabb, tatawu'u, ihsaan, fadhiilat. It is ordained without compulsion. The manduub has got the following levels of excellence: confirmed, sunnat muakkada; and not confirmed, sunnat ghayr muakkadat. The sunnat muakkadat is what the Prophet used to carry out continuously and left it only on rare occasions.

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2.3 Prohibited, haraam

Prohibited/unlawful, haraam is defined as omission of the waajib or commission of the haraam. The original position for all human acts is permission and prohibition is the exception. Thus textual evidence is required to prove prohibition but is not required to prove permission. The situation is reversed in sexual matters in which the original position is haraam and permission is the exception requiring textual evidence. Only Allah can make something haraam. Haraam is prohibited because it is impure and harmful. An act that aggravates disease is haraam. An act that leads to haraam is also haraam. An act that cures disease is waajib. A general principle is that the halaal is clear and the haraam is clear and between the two are inconclusive matters, mutashaabihaat For inconclusive matters what leads to bad or evil is makruuh and what leads to good is manduub.

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2.4 Offensive, makruuuh

Offensive/reprehensible/disaaproved, makruuh, is an act that is discouraged by the Law giver without compulsion. It is better to avoid the makruh. The makruh is an introduction to the haram and must therefore be avoided.

2.5 REWARDS AND PUNISHMENTS FOR VARIOUS ACTS

The classification of acts can best be understood from the consenquences of doing them or not doing them

3.0 EVOLUTION OF MEDICAL JURISPRUDENCE, tatawwur al fiqh al tibbi

3.1 First period

There are three stages in the evolution of fiqh tibbi. In the first period (0 to circa 1370H) it was derived directly from the Qur’an and sunnat.

3.2 The second period

In the second period (1370-1420) rulings on the many novel problems arising from drastic changes in medical technology were derived from secondary sources of the Law either transmitted (such as analogy, qiyaas, or scholarly consensus, ijma) or rational (such as istishaab, istihsaan, and istirsaal).

3.3 The modern period

The failure of the tools of qiyaas to deal with many new problems led to the modern era (1420H onwards) characterized by use of the Theory of Purposes of the Law, maqasid al shari’at, to derive robust and consistent rulings. Ijtihad maqasidi is becoming popular and will be more popular in the foreseeable future.

The theory of maqasid al shari’at is not new but many people had not heard about it because its time had not yet come. By the 5-6^th centuries of hijra the basic work on the closed part of the Law derived directly from primary sources was complete. Any further developments in the law required opening up new the flexible part of the law which necessitated discussion of the purposes of the law. It was at this time that al Ghazali and his teacher Imaam al Haramain al Juwayni introduced the ideas that underlie the concept of maqasid al shari’at. Other pioneers of the theory of maqasid al shari’at were Imaam an Haramain al Juwayni and his student Abu Hamid al Ghazzali (d. 505 H), Sheikh al Islam Ahmad Ibn Taymiyyah (d. 728H) and his student Ibn al Qayyim al Jawziyyat (d. 751H). The field of the purposes of the law witnessed little development until revived by the Abdalusian Maliki scholar Imaam Abu Ishaq al Shatibi in the 8th century AH who elaborated Ghazzali's theory. Our subsequent discussion of the purposes of the law is from al Shatibi's book al muwafaqaat fi usuul al shariat

4.0 DERIVATION OF MEDICAL ETHICS FROM THE LAW

4.1 Relation between law and ethics

Islamic Law is comprehensive being a combination of moral and positive laws. It can easily resolve ethical problems that secularized law, lacking a moral religious component, cannot solve. Many contemporary ethical issues in medicine are moral in nature and require moral guidance that can be provided only from religion. The Law is the expression and practical manifestation of morality. It automatically bans all immoral actions as haram and automatically permits all what is moral or is not specifically defined as haram. The approach to ethics is a mixture of the fixed absolute and the variable. The fixed and absolute sets parameters of what is moral. Within these parameters, consensus can be reached on specific moral issues. Ethical theories and principles are derived from the basic Law but the detailed applications require further ijtihad by physicians. Islam has a parsimonious and rigorously defined ethical theory of Islam based on the 5 purposes of the Law, maqasid al shari’at. The five purposes are preservation of ddiin, life, progeny, intellect, and wealth. Any medical action must fulfill one of the above purposes if it is to be considered ethical. Legal axioms or principles, qawa’id al shari’at, guide reasoning about specific ethico-legal issues and are listed as intention, qasd; certainty, yaqiin; injury, dharar; hardship, mashaqqat; and custom or precedent, ‘urf or ‘aadat.

4.2 The 5 Purposes of the Law in Medicine, maqasid al shari’at fi al tibb

Protection of ddiin, hifdh al ddiin, essentially involves ‘ibadat in the wide sense that every human endeavor is a form of ‘ibadat. Thus medical treatment makes a direct contribution to ‘ibadat by protecting and promoting good health so that the worshipper will have the energy to undertake all the responsibilities of ‘ibadat. A sick or a weak body cannot perform physical ‘ibadat properly. Balanced mental health is necessary for understanding ‘aqidat and avoiding false ideas that violate true ‘aqidat.

Protection of life, hifdh al nafs: The primary purpose of medicine is to fulfill the second purpose of the Law, the preservation of life, hifdh al nafs. Medicine cannot prevent or postpone death since such matters are in the hands of Allah alone. It however tries to maintain as high a quality of life until the appointed time of death arrives. Medicine contributes to the preservation and continuation of life by making sure that physiological functions are maintained. Medical knowledge is used in the prevention of disease that impairs human health. Disease treatment and rehabilitation lead to better quality health.

Protection of progeny, hifdh al nasl: Medicine contributes to the fulfillment of the progeny function by making sure that children are cared for well so that they grow into healthy adults who can bear children. Treatment of infertility ensures successful child bearing. The care for the pregnant woman, peri-natal medicine, and pediatric medicine all ensure that children are born and grow healthy. Intra-partum care, infant and child care ensure survival of healthy children.

Protection of the mind, hifdh al ‘aql: Medical treatment plays a very important role in protection of the mind. Treatment of physical illnesses removes stress that affects the mental state. Treatment of neuroses and psychoses restores intellectual and emotional functions. Medical treatment of alcohol and drug abuse prevents deterioration of the intellect.

Protection of wealth, hifdh al mal: The wealth of any community depends on the productive activities of its healthy citizens. Medicine contributes to wealth generation by prevention of disease, promotion of health, and treatment of any diseases and their sequelae. Communities with general poor health are less productive than healthy vibrant communities. The principles of protection of life and protection of wealth may conflict in cases of terminal illness. Care for the terminally ill consumes a lot of resources that could have been used to treat other persons with treatable conditions.

4.3 The 5 Principles of the Law in Medicine, qawa’id al shari’at fi al tibb

The principle of intention, qa’idat al qasd: The Principle of intention comprises several sub principles. The sub principle ‘each action is judged by the intention behind it’ calls upon the physician to consult his inner conscience and make sure that his actions, seen or not seen, are based on good intentions. The sub principle ‘what matters is the intention and not the letter of the law’ rejects the wrong use of data to justify wrong or immoral actions. The sub principle ‘means are judged with the same criteria as the intentions’ implies that no useful medical purpose should be achieved by using immoral methods.

The principle of certainty, qa’idat al yaqeen: Medical diagnosis cannot reach the legal standard of absolute certainty, yaqeen. Treatment decisions are based on a balance of probabilities. The most probable diagnosis is treated as the working while those with lower probabilities are kept in mind as alternatives. Each diagnosis is treated as a working diagnosis that is changed and refined as new information emerges. This provides for stability and a situation of quasi-certainty without which practical procedures will be taken reluctantly and inefficiently. The principle of certainty asserts that uncertainty cannot abrogate an existing certainty. Existing assertions should continue in force until there is compelling evidence to change them. All medical procedures are considered permissible unless there is evidence to prove their prohibition.

The principle of injury, qa’idat al dharar: Medical intervention is justified on the basic principle is that injury, if it occurs, should be relieved. An injury should not be relieved by a medical procedure that leads to an injury of the same magnitude as a side effect. In a situation in which the proposed medical intervention has side effects, we follow the principle that prevention of an injury has priority over pursuit of a benefit of equal worth. If the benefit has far more importance and worth than the injury, then the pursuit of the benefit has priority. Physicians sometimes are confronted with medical interventions that are double edged; they have both prohibited and permitted effects. The guidance of the Law is that the prohibited has priority of recognition over the permitted if the two occur together and a choice has to be made. If confronted with 2 medical situations both of which are injurious and there is no way but to choose one of them, the lesser injury is committed. A lesser injury is committed in order to prevent a bigger injury. In the same way medical interventions that are in the public interest have priority over consideration of individual interest. The individual may have to sustain an injury in order to protect public interest. In many situations, the line between benefit and injury is very fine.

The principle of hardship, qaidat al mashaqqat: Medical interventions that would otherwise be prohibited actions are permitted under the principle of hardship if there is a necessity. Necessities legalize the prohibited, al daruuraat tubiihu al mahdhuuraat, and mitigate easing of legal rules and obligations. In the medical setting a hardship is defined as any condition that will seriously impair physical and mental health if not relieved promptly. Committing the otherwise prohibited action should not extend beyond the limits needed to preserve the purpose of the Law that is the basis for the legalization. The temporary legalization of prohibited medical action ends with the end of the necessity that justified it in the first place.

The principle of custom or precedent, qaidat al urf: The standard of medical care is defined by custom. The basic principle is that custom or precedent has legal force. What is considered customary is what is uniform, widespread, and predominant and not rare. The customary must also be old and not a recent phenomenon to give chance for a medical consensus to be formed.