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Paper presented at a workshop for physicians held at Kampung Baru Medical Center in Kuala Lumpur by Professor Omar Hasan Kasule MB ChB (MUK), MPH (Harvard), DrPH (Harvard) Professor of Epidemiology and Islamic Medicine Universiti Brunei Darussalam EM
1.0 INTRODUCTION TO SHARI’AT
1.1 THE CHANGING USAGES OF THE TERM ‘SHARI’AT’
The term shari’at in Arabic means a way, a road, or a guide. At the beginning it conveyed the meaning of both ‘aqiidat which is internal and actions that are external manifestations of ‘aqiidat. The actions include physical acts of worship, ‘ibaadaat; civil transactions, mu’amalaat madaniyyat; financial transactions, mu’amalaat maaliyyat; judicial matters, mu’amalaat qadhaiyyat, and matters of political organization, siyaasat. With time the term came to be used to refer only to the actions excluding ‘aqiidat. With the passage of more time and increasing secularization, the term shari’at became confined to the civil transactions of marriage, munakahaat; divorce, talaaq; and inheritance, mawariith. Even the narrow area in which shari’at has retreated after marginalization by secular laws in now threatened with complete extinction. Our discussion of maqasid al shari’at is an attempt to revive and bring to life the concept of shari’at as a comprehensive guideline for society. We shall use the term Law with a capital ‘L’ to refer to the Law of Allah which is the shari’at and this distinguish if from the law of humans which is spelt with a lower case ‘l’.
1.2 THE LAW AS THE BASIS OF MUSLIM SOCIETY AND CULTURE
Islamic Law is the basis for Islamic culture, civilization, and societal institutions. Islamic Law is complete and comprehensive. It serves the best interests of humans. It can accommodate new challenges and can grow. Islamic Law is a viable system that has not been given its due role in shaping Muslim societies because it has been marginalized. The Law is revealed and cannot be derived from rational reasoning alone however most legal rulings can be understood logically.
1.3 UNIVERSAL APPLICABILITY OF THE SHARI’AT
Islam and its Law are suitable for all places and all times due to its conformity to basic human nature, satisfaction of human interests, ease of application, and flexibility. There is in-built flexibility of the fixed part and adaptive flexibility of the variable part. Modernism defined as scientism, rationalism, and empiricism is not an intellectual challenge to the shari’at because the shari’at sciences of fiqh and usul al fiqh are very rational, evidence-based, and systematic. They employ logic and reason in most of their conclusions.
2.0 INTRODUCTION TO MAQASID al SHARI’AT
2.1 NATURE OF MAQASID AL SHARI’AT
The Law was revealed to fulfill specific underlying purposes, maqasid, and for the benefit and in the interests of humans. Without the Law humans cannot use their reasoning to discover their true interests and establish the equilibrium between evils, mafasid, and benefits, masalih, since these are relative and not absolute. The maqasid are permanent, consistent, derived form the texts, nass, by induction and are therefore definitive. They ensure that the Law is unchanged or violated. They deal with whole and not the parts. The maqasid are permanent and are unchangeable. They define clear objectives for the community and allow it to grow as a living balanced organism. The economic system must follow the priorities of the maqasid to ensure a just, moral, and happy society.
2.2 CONTEMPORARY ROLE OF MAQASID AL AHSRI’AT
The 1st to 14th centuries witnessed relatively little change in the ummah in the physical sense and problems that arose could be resolved by direct reference to the texts, nass, or by analogy to previous textual rulings, qiyaas. However in the 15th century, technological changes have created new and complex problems that require a bird's eye view for solution. It is the maqasid that can provide this bird's eye view and thus lead to appropriate solutions.
2.3 The 5 PRIMARY PURPOSES OF THE LAW GIVER, maqasid al shariu ibtida'an
The 5 necessities, al dharuuraat al khamsat, that are generally referred to as maqasid al shari’at arranged here in order of importance are: protection of religion, hifdh al ddiin; protection of life, hifdh al nafs; protection of the mind or the intellect, hifdh al 'aql; protection of progeny, hifdh al nasl; and protection of property, hifdh al maal.
Protection of ddiin, hifdh al ddiin, is ‘aqidat and ibadat in addition to other aspects of the Law that ensure freedom of belief and worship.
Protection of life, hifdh al nafs, is protection of the body from harm and involves activities of daily living, ‘aadaat al hayaat, like eating; civil or financial transactions, mu’amalaat; and criminal justice to ensure protection of life. It could take the forms of quarantines and isolation in epidemics, and liability for medical negligence.
Protection of progency, hifdh al nasl, is assured by marriage, child-birth within the marital bond, and proper child upbringing.
Protection of the mind, hifdh al ‘aq,l is assured by normal psychosocial relations as well as prohibition of alcohol and drugs.
Protection of wealth, hifdh al mal, is assured by property rights and prohibition of stealing and embezzlement.
3.0 MAQASID AL SHARI’AT IN MEDICINE
3.1 PROTECTION OF DDIIN
Protection of diin is essentially involves ‘ibaadat in the wide sense that every human endeavor is a form of ‘ibaadat. Thus medical treatment makes a direct contribution to ‘ibaadat by protecting and promoting good health so that the worshipper will have the energy to undertake all the responsibilities of ‘ibaadat. The principal forms of physical ‘ibaadat are the 4 pillars of Islam: prayer, salat; fasting, siyaam; pilgrimage, hajj, and jihad. A sick or a weak body can perform none of them properly. Balanced mental health is necessary for understanding ‘aqiidat and avoiding false ideas that violate ‘aqiidat. Thus medical treatment of mental disorders thus contributes to ‘ibadat.
3.2 PROTECTION OF LIFE, hifdh al nafs
The primary purpose of medicine is to fulfill the second purpose of the shari’at, 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 the nutritional functions are well maintained. Medical knowledge is used in the prevention of disease that impairs human health. Disease treatment and rehabilitation lead to better quality health.
3.3 PROTECTION OF PROGENY, hifdh al nasl
Medicine contributes to the fulfillment of this 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, perinatal 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.
3.4 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.
3.5 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 a healthy vibrant community. 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. The question may be posed whether the effort to protect life is worth the cost. The issue of opportunity cost and equitable resource distribution also arises.
4.0 PRINCIPLES OF THE SHARI’AT IN MEDICINE
4.1 PURPOSE OF THE PRINCIPLES
The principles of the shari’at, qawa’id al shari’at, are used to clarify the practical application of the maqasid al shari’at.
4.2 THE PRINCIPLE OF INTENTION, qa’idat al qasd
The Principle of intention comprises several sub principles. The sub principle that 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 that 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 that means are judged with the same criteria as the intentions implies that no useful medical purpose should be achieved by using immoral methods.
4.3 THE PRINCIPLE OF CERTAINTY, qaidat al yaqeen
Medical diagnosis does cannot reach the legal standard of absolute certainty, yaqeen. Treatment decisions are best on a balance of probabilities. 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. Existing assertions should continue in force until there is compelling evidence to change them. Established medical procedures and protocols are treated as customs or precedents. What has been accepted as customary over a long time is not considered harmful unless there is evidence to the contrary. All medical procedures are considered permissible unless there is evidence to prove their prohibition. Exceptions to this rule are conditions related to the sexual and reproductive functions. All matters related to the sexual function are presumed forbidden unless there is evidence to prove permissibility.
4.4 THE PRINCIPLE OF INJURY, qaidat 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 a harm has priority over pursuit of a benefit of equal worth. If the benefit has far more importance and worth than the harm, 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 harmful and there is no way but to choose one of them, the lesser harm is committed. A lesser harm is committed in order to prevent a bigger harm. In the same way medical interventions that in the public interest have priority over consideration of the individual interest. The individual may have to sustain a harm in order to protect public interest. In the course of combating communicable diseases, the state cannot infringe the rights of the public unless there is a public benefit to be achieved. In many situations, the line between benefit and injury is so fine that salat al istikharat is needed to reach a solution since no empirical methods can be used.
4.5 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. Necessity legalizes the prohibited. In the medical setting a hardship is defined as any condition that will seriously impair physical and mental health if not relieved promptly. Hardship mitigates easing of the shari’at rules and obligations. 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. Necessity however does not permanently abrogate the patient’s rights that must be restored or recompensed in due course; necessity only legalizes temporary violation of rights. The temporary legalization of prohibited medical action ends with the end of the necessity that justified it in the first place. This can be stated in al alternative way if the obstacle ends, enforcement of the prohibited resumes. It is illegal to get out of a difficulty by delegating to someone else to undertake a harmful act.
4.6 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.