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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.