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Lecture by Professor Omar Hasan Kasule Sr. for Year 1 Semester 1 Med PPSD session on 27th August 2008
SOURCES OF THE LAW
Sources of criminal and civil laws are from specific legislation or statutes or common law (opinions made by court judges in the past).
The sources of Islamic Law are the Qur’an, hadith (the sayings of the Prophet Muhammad), consensus of jurists or legal scholars, and analogy to previous laws. The Law can also be derived from ‘aadat (customs or precedents), and consideration of what is the public interest.
PURPOSES OF THE LAW
The Law must protect, preserve, and promote the following 5 purposes: morality, life, progeny, intellect, and resources. These purposes are permanent and are unchangeable.
Preservation of morality is prohibition of all what is evil and immoral.
Preservation of life is protection of the body from harm and is the main field of medical practice.
Preservation of progeny is assured by proper ante-natal and post-natal medical care.
Preservation of the intellect is assured by prohibition of alcohol and drugs as well as psychiatric treatment for those with mental disorders.
Preservation of resources is assured by property rights and prohibition of stealing and embezzlement.
PRINCIPLES OF THE LAW
Five major principles are unanimously recognized as the pillars of the law: Intention, certainty, injury, difficulty; and custom or precedent.
The principle of intention states that each action is judged by the intention behind it. What matters is the intention and not the letter of the Law. Means are judged with the same criteria as the intentions. If the intention is wrong the means is also wrong.
The principle of certainty states that a certainty cannot be changed by doubt. Existing assertions continue until there is compelling evidence changes them. All acts are permissible unless there is evidence to the contrary.
The principle of injury states that injury should be relieved or prevented as much as is possible but cannot be relieved an injury of the same degree. Prevention of an injury takes precedence over pursuit of a benefit of equal worth. The lesser of two actions of equal harm harms is selected. A lesser harm is committed in order to prevent a bigger one. An individual could sustain harm in the public interest.
The principle of hardship states that difficulty calls forth ease and mitigates easing of rules and obligations. Humans are not obliged beyond their capacity. Necessity legalizes the prohibited.
The principle of custom/precedent states that custom or precedent is a legal ruling and is a source of law unless contradicted specifically by text.