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Paper delivered at a half-day seminar on Issues in Medical Ethics: an Islamic Perspective held at al Islam Specialist Hospital Kuala Lumpur on 19th July 2009 by Professor Omar Hasan Kasule Sr MB ChB (MUK), MPH (Harvard), DrPH (Harvard) Professor King Fahad Medical College Riyadh, Professor of Epidemiology and Islamic Medicine University of Brunei and Visiting Professor of Epidemiology University of Malaya. EM: omarkasule@yahoo.com and WEB: http://omarkasule.tripod.com
1.0 INTRODUCTION
A distinct Islamic formulation of medical ethics has become necessary because the current European formulation has limitations if examined from an Islamic perspective.
2.0 THE RISE OF SECULAR ETHICS
Concern with ethics in the past was not as intensive as it is at the moment. It was assumed that physicians would be ethical and moral in their work and this was true to a large extent because religiosity was a leading characteristic of life in the past. Towards the last quarter of the 20th century ethical considerations became a major concern for two reasons. The first reason is that developments in medical technology gave rise to problems such as life-support, in-vitro fertilization and others that had moral dimensions. The second reason was the increase in moral violations by medical practitioners.
The medical profession found itself in a dilemma because moral values were not part of the secular medical curriculum. Secularism gradually encroached civil life starting in the 16th century renaissance. By the 20th century, all aspects of European life including medicine had become secularized. The practical manifestation of this secularization was the marginalization of religious and moral values and confining them to the private arena of individual’s belief. When medical problems that required moral solutions arose, the medical profession and society at large were not ready to face the challenges. The positive secular laws that existed were deficient in resolving moral problems. It became necessary to develop secular medical ethics as a new discipline to deal with the challenges.
Muslims did not face a similar dilemma because they kept their divine Law, shari’at, intact. Islamic Law, unlike European secular law, is based on a complete system of morality and can therefore handle all moral problems that arise in medicine from a legal perspective. It also is very flexible being adaptable to many new and novel situations. Strictly speaking Muslims do not need to talk of ethics as a separate discipline because it is already included in their Law.
3.0 EUROPEAN ETHICAL THEORIES
According to Beauchamp and Childress (1994) there are eight ethical theories. None of them can on its own explain all ethical or moral dilemmas. A good ethical theory must be clear, coherent, complete, comprehensive, simple, practicable, and able to explain and justify. None of these 8 theories has all these characteristics. In practice more than one theory may have to be combined to solve a specific ethical issue.
According to the utilitarian consequence-based theory, an act is judged as good or bad according to the balance of its good and bad consequences. Utilitarianism means attaining the greatest positive with the least negative. This theory has a problem in that it can permit acts that are clearly immoral on the basis of utility.
The obligation-based theory is based on Kantian philosophy. Immanuel Kant (1724-1804) argued that morality was based on pure reasoning. He rejected tradition, intuition, conscience, or emotions as sources of moral judgment. A morally valid reason justifies action. Acts are based on moral obligations. The problem with the Kantian theory is that it has no solution for conflicting obligations because it considers moral rules as absolute.
The rights-based theory is based on respect for human rights of property, life, liberty, and expression. The individual is considered to have a private area in which he is master of his own destiny. Rights may be absolute or relative. A positive right is one that has to be provided to the individual. A negative right is one that assures prevention of or protection from harm. There is a complex inter-relation between rights and obligations. Individual rights may conflict with communal rights. The problem of the rights-based theory is that emphasis on individual rights creates an adversarial atmosphere.
According to the community-based theory, ethical judgments are controlled by community values that include considerations of the common good, social goals, and tradition. This theory repudiates the rights-based theory that is based on individualism. The problem with this theory is that it is difficult to reach a consensus on what constitutes a community value in today’s complex and diverse society.
The relation-based theory gives emphasis to family relations and the special physician-patient relation. For example a moral judgment may be based on the consideration that nothing should be done to disrupt the normal functioning of the family unit. The problem of this theory is that it is difficult to deal with and analyze emotional and psychological factors that are involved in relationships.
The case-based theory is practical decision-making on each case as it arises. It does have fixed philosophical prior assumptions.
4.0 CHARACTERISTICS OF ISLAMIC BIOETHICS
Divine source
Morality and ethics in Islam are absolute and are of divine origin. Human consensus not deriving from divine legislation cannot be a source of binding ethical guidelines. All what humans do it to apply the legal and moral teachings of Islam to practical situations.
Law and morality
European law and practice are very deficient when dealing with ethical issues. The law does not always and consistently follow morality. In Islam the law is the expression and practical manifestation of morality. European law does not have to permit all morally acceptable practices neither does it automatically ban all immoral activities. This contrasts sharply with Islam that automatically bans all immoral actions as haram and automatically permits all what is moral or is not specifically defined as haram.
Law and ethics: an Islamic view-point
Islamic Law is comprehensive and is a combination of moral and positive laws. Secularized European law is in essence a denial of moral considerations in law because morality is associated with ‘religion’. However application of the secularized law in medicine showed its deficiencies because issues arose whose solution required moral considerations. This inevitably led to the birth of the field of medical ethics. Strictly speaking we should not talk about ethics when we use Islamic law because ethical issues are encompassed within the law.
Ethics: stability and change
The issue of whether ethics are constant or not is irrelevant. The basic moral and legal principles are broad enough to encompass the needs of all times and places. The detailed applications change with the growth of science and technology. The Islamic approach to ethics is a mixture of the fixed absolute and the variable. There are fixed principles that set the parameters beyond which it is absolutely immoral to operate. Within these parameters, consensus can be reached on specific moral issues. The consensus may be in the form of a custom, ‘aadat, which in Islamic Law has legal force. Islam holds that ethics cannot be divorced from morality. Ethics can also not be divorced from Law. Islamic Law is a compendium of ethics, morality, and legal rules. The purposes of the law and its principles are therefore the basis of ethics. Islam holds that the human mind, unless corrupted by shaitan, is capable to working out rationally what is right and what is wrong for most problems of life. There are however a few gray areas for which moral reasoning needs to be guided by wahy to reach correct conclusions.
There are two basic models of moral justification: deduction and induction. Deduction is a top-down approach popular among Hanafi jurists in which a general principle is applied to to specific cases. Induction is a bottom-up approach in which each case is considered on its own merits. Induction relies a lot on analogy, qiyaas, Inductive processes involving many cases can lead to a generalization that is considered an ethical theory.
The Islamic legal process
A major difference between the European and Islamic Legal processes is that the former is adversarial with the assumption that truth and justice will be established when the two litigants each tries to defend their positions before a judge. The Islamic legal process is focused more on solving problems and reaching reconciliation.