Home 
Contact 
Profile 
Videos 
Presentation
on November 2, 2013 by Professor Omar Hasan Kasule Sr. MB ChB (MUK), MPH
(Harvard), drPH (Harvard) Faculty of Medicine King Fahad Medical City Riyadh at
pre-conference dinner of the International Conference and Workshop held at
Banda Aceh, Indonesia under the theme
‘Meningkaktan Pelayan Kesehatankepadapasiensdengankaidah tauhid’
EVOLUTION OF ISLAMIC LAW 1
·
Islamic Law, shari’at,
is characterized by comprehensiveness, shumuliyyat, and flexible growth
and expansion based on continuous ijtihad. Ijtihad makes the Law
suitable for every place and every time because of evolution to adapt to new
situations.
·
The growth and
evolution of the Law are not haphazard, they depend on underlying purposes, maqasid,
and principles, qawa’id, derived directly or inductively from the Qur’an
and sunnat.
·
In the first
three centuries of Islam called the era of tabi’uun and tabiu al
tabi’uun, problems could be solved by direct reference to Qur’an and sunnat
because many people knew and understood the sources.
EVOLUTION OF ISLAMIC LAW 2
·
After that
there was a need to codify the Law in the form of the schools of fiqh (Shafei,
Hanafi, Maliki, Hanbali and others) because many people were ignorant of
the sources.
·
The
codification was based on direct textual references to Qur’an and sunnat
or by analogy, qiyaas, or by scholarly consensus,ijmaa.
·
This process of
codification was complete by the 5th century of hijra and
jurists opened a new area of ijtihad that would be based on considerations
of the higher purposes of the Law, maqasid al shari’at.
·
Ijtihadmaqasidi is
a bird’s eye-view from above looking at the whole and not the parts, juz’iyyaat.
PIONEERS OF MAQASID AL SHARI’AT 1
·
The pioneers of
maqasid were Imam al-HaramaynDhia' ul-Din
Abd al-Malik ibn Yusuf al-Juwayni al-Shafi'i
(419-478 AH) and his student Hujjat al Islam AbūḤāmidMuḥammadibnMuḥammad
al-Ghazālī (c. 1058–1111);
·
Sheikh
al Islam Taqi ad-Din Ahmad ibnTaymiyyah (1263 – 1328 CE) and his student
Muhammad ibnIbnQayyim al-Jawziyyah (691 AH–751 AH).
·
These
ideas remained unused because society remained simple with problems that could
be solved by direct reference to Qur’an and sunnat or use of qiyaas and ijma.
PIONEERS OF MAQASID AL SHARI’AT 2
·
It
was not until the 8th century of hijra that the Andalusian scholar Imam
Abu IshaqIbrahim bin Mosa bin Muhammad al-Shatibi al-Gharnati(d. 790H) systematized
them in his great book al muawafaqaat fi usul al shari’at.
·
The
concept of maqasid dis not gain wide currency until modern times when the tools
of qiyas and ijma were found inadequate to address contemporary complex
problems especially in the field of medicine.
THE
5 PURPOSES
The Law was revealed to fulfill 5 fundamental purposes: protection,
promotion, and preservation of
1.
Diin, hifdh al
diin
2.
Life, hifdh al
nafs
3.
Progeny, hifdh
al nasl,
4.
Intellect,
hifdh al ‘aql
5.
Wealth, hifdh
al maal.
PURPOSE
1: 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.
PURPOSE
2: 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.
PURPOSE
3: 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, pre-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.
PURPOSE
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.
PURPOSE
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 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.
NEED FOR PRINCIPLES 1
·
The purposes above are general principles and
guidelines. The practitioner in the field may come across problems that require
simple axioms to guide him or her to a solution.
·
Principles of the Law were developed from the Qur’an andsunnat to
play this role and they have been found very useful in medical practice.
·
The five main principles were systematized in the Othmani legal gazette
called Majallat al ahkaam al adliyyat. It listed the 5 main principles
called kulliyaat al fiqh and derived principles that reached 99. It then listed
more derived principles over 1800 with main focus on commercial transactions.
THE FIVE MAJOR PRINCIPLES ARE:
1.
The principle of intention, qa’idat al qasd
2.
The principle of certainty, qa’idat al yaqeen
3.
The principle of Harm / injury, qa’idat al dharar,
4.
The Principle of Hardship, qa’idat al mashaqqat and
5.
The Principle of custom / precedence, qa’idat al urf.
PRINCIPLE
1: 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.
PRINCIPLE
2: 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.
PRINCIPLE
3: THE PRINCIPLE OF INJURY, qa’idat al
dharar 1
·
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.
PRINCIPLE
3: THE PRINCIPLE OF INJURY, qa’idat al
dharar 2
·
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.
·
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.
PRINCIPLE
4: 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 daruuraattubiihu 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.
PRINCIPLE
5: 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.