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131102P - UNDERSTANDING AND APPLYING MAQASID AND QAWA’ID IN MEDICAL PRACTICE

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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’


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. 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. 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. 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 di 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 Law was revealed to fulfill 5 fundamental purposes: protection, promotion, and preservation of 1. Life, hifdh al diin 2.Life, hifdh al nafs 3.Progeny, hifdh al nasl, 4.Intellect, hifdh al ‘aql and 5.Wealth, hifdh al maal. These 5 purposes find direct application in medicine as explained below:

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.

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 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. 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 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 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.

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.