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Presentation
by Professor Omar Hasan Kasule MB ChB (MUK), MPH (Harvard), DrPH (Harvard)
Faculty of Medicine King Fahad Medical City, Riyadh.
SUMMARY 1
·
The paper
presents results of a research project that consists of retrieval of medical fatwas
from the website, summarizing/paraphrasing them in English using medical
terminology, and assessing their conformity to maqasid al shariat and qawaid
al fiqh as well as the necessities of empirical medical practice.
·
The motivation
of the research was to assess the viability of using maqasid and qawaid
as guidelines to the medical professional in reaching robust conclusions
about complicated ethico-legal issues that arise in practice.
SUMMARY 2
·
An assessment
was made whether the conclusions reached by the Fiqh Academy in a period
of 25 years could have been derived from the maqasid and qawaid.
·
The conclusion
was that a series of axioms based on maqasid and qawa’id can be
used as a reference by practitioners to form quick opinions on practical
ethical issues. Ijtihad maqasidi
is becoming popular and will be more popular in the foreseeable future. The
paper recommends that a book of qawa’id for medical application be developed as a
parallel to majallat al ahkaam al
adliyyat in the commercial area.
THE INTERNATIONAL ISLAMIC FIQH ACADEMY (IIFA) 1
·
IIFA is an
organ of the Organization of Islamic Cooperation (OIC) founded according to a
decision of a meeting of the OIC held in Makkah 25-28 January 1981.
·
IIFA members
are fuqaha, ulama, thinkers in various fields of knowledge
including fiqh, culture, science, and economics and from different parts of the
world.
·
IIFA studies
problems of contemporary life through ijtihad to reach solutions deriving from
the Islamic heritage and open to developments of Islamic thought.
THE INTERNATIONAL ISLAMIC FIQH ACADEMY (IIFA) 1
·
The first
meeting of IIFA was 7-9 June 1983. IIFA holds a session every year in a
different Muslim capital and discusses issues raised. These issues vary from
year to year and cover all fields including medicine.
·
The first
meeting was held in 1983 and the 21st meeting in 1435H.
·
IIFA recognized
the importance of maqasid al shari’at in its resolution No (18/5) 167
dated 9-14 July 2007 (see Table No 1) and defined their role in the methodology
of its work.
·
There is
evidence in the various decisions taken over the past quarter century of using maqasid
and qawa’id but not systematically or uniformly.
METHODS OF THE RESEARCH 1
·
Decisions of
the Academy were retrieved from its website www.fiqhacademy.org.sa. They were
translated with liberal paraphrasing and rearrangement by the author to make
them easy to read in English. The preambles to the decisions and unnecessary
details were eliminated. The background research papers on which these
decisions were based were not included in the analysis.
·
The decisions
were tabulated showing which qai’dat or maqsad applied to each.
Where relevant the number of the qa’idat in the majallat was
provided.
METHODS OF THE RESEARCH 2
·
An explanation
was made how in the author’s view that qa’idat or maqsad
explained the decision.
·
An overall
assessment was made on each decision in terms of its consistency with his
understanding of maqasid al shariát, applicable qawa'id al fiqh,
and medical practice.
·
The source of maqasid
al shariat by the classical book of Abu Ishaq al Shatibi, al muwafaqqat
fi usul al shari’at. The source of qawa’id was the majallat al
ahkaam al adliyyat.
PHYSICIAN LIABILITY 1:
·
Making the
physician liable for malpractice errors protects life (hifdh al nafs) and
prevents harm (dharar).
·
The harm to the
patient may be physical such as wrong medication or psychological such as
disclosing confidential medical information
·
Physician
malpractice may be intended or may be due to lack of knowledge or skill
·
Physician liability
arises if there is a contract with the patient with the exception of emergency
situations
·
Malpractice may
be an error of commission or an error of omission.
PHYSICIAN LIABILITY 2:
·
The physician
in direct contact with the patient, al mubashir, is liable although
another physician contributed to the error according to the principle, Idha
ijatam al mubashir wa al mutasabbib yudhaafu al hukm ila al mubaashir (Majallat
article No. 90).
·
Yudhaafu al
fi’ilu lia al faa’ili la al aamir ma lam yakun mujbiran
(Majallat article No. 89)
CONSENT 1:
·
The patient has
his best interests at heart and has to decide on medical procedures to protect
life (hifdh al nafs) and prevent harm (dharar).
·
If the patient
is not competent the next of kin is the best placed to protect the interests of
the patient as the legal guardian (wakiil) (Majallat article No.
1449).
·
If there is no
next of kin the government authority assumes the duty of legal guardian. In the
present of the next of kin the government cannot make decisions because private
guardianship (wilayat khaasat) is stronger than public guardianship (wilaayat
‘aamat) (Majallat article No. 59).
·
The government
can order treatment and other measures to contain an epidemic without
individual consent because public interest (maslahat ‘aamat). There must
be a real benefit associated with this intervention, Al tasarruf fi al
ra’yat manuutu bi al maslahat (Majallat article No 58).
CONSENT 2:
·
Treatment can
be given without consent in a life-saving emergency because of necessity since
necessities make the forbidden permissible (al dharurat tubiihu al
mahdhuuraat ) (Majallat article No 21).
·
Consent for
research has more consideration than consent for treatment because the benefit
is not assured and the risks are unknown.
·
Consent for
vulnerable research subjects like prisoners and the destitute may not be valid
if coercion is involved even if indirectly.
·
Consent can be
written or verbal al kitaab ka al khitaab (Majallat article No
69).
·
Silence does
not imply consent (la yunsab li saakitin qawl) (Majallat article
No. 67).
CLINICAL PRACTICE
·
Rulings on
treatment are based on the benefit-risk ratio which reflects the balance of
protecting life (hifdh al nafs) and preventing harm (dharar).
·
Treatment is
obligatory (wajib) or recommended (manduub) if non-treatment will
lead to body injury or impairment. It is offensive (makruh) if side
effects of the treatment are worse than the disease.
·
In conditions
of necessity in the absence of a female physician, a male can treat a female
because necessity makes the prohibited permissible (Majallat article No
21). The exposure of nakedness should not be more than the minimum necessary
because al dharuraat tuqaddar bi qadariha (Majallat article No
22)
·
Presence of a
chaperone prevents harm of transgression or suspicion
SAUM FOR THE PATIENT
·
Permissibility
of a wide range of medications and surgical procedures in Ramadhan is based on
the principle of certainty (yaqiin) that they do not introduce
nutritious material into the alimentary canal (aljawf).
·
If treatment
can wait it is better to postpone it to the night since there is no dharurat
to break the saum.
ACQUIRED IMMUNODEFICIENCY DISEASE SYNDROME (AIDS)
·
Measures are
taken to prevent spread of infection to the spouse to others.
·
Spouses can
separate to prevent spread of infection because hifdh al nafs is higher
in consideration than hifdh al nasl.
·
Patients need
not be isolated because there is no yaqiin that the infection can spread
through casual contact.
·
Deliberate
spread of the infection violates hifdh al nafs and is a punishable crime.
·
Pregnancy is
not terminated if the mother is infected for hifdh al nafs of the fetus.
·
An infected
mother can nurse her baby because there is no yaqiin of infection
through the milk.
·
AIDS is
considered a terminal illness because there is no yaqiin evidence of
recovery from it.
REPRODUCTION ETHICS 1
·
Public laws
restricting the couple’s reproductive choices are not permissible because it
contacts the purpose of hifdh al nasl.
·
Permanent
sterilization of men and women is not permissible because it contracts the
purpose of hifdh al nasl but it can be permissible for a legal
necessity, dharurat.
·
Temporary
contraception is permissible with methods that do not cause harm (dharar)
or destruction of life (hifdh al nafs) and with mutual agreement of the
two spouses.
REPRODUCTION ETHICS 2
·
Non-permissibility
of in vivo and in vitro fertilization involving sperm or ovum donation or use
of a surrogate uterus because of contravening the purpose of lineage (hifdh
al nasl or hifdh al nasab).
·
No extra ova
should be fertilized in IVF procedures to avoid their destruction that is
against the purpose of hifdh al nafs.
·
Extra
fertilized ova should not be implanted in a strange woman because that
contradicts the purpose of hifdh al nasl.
END OF LIFE ETHICS
·
The definition
of terminal illness (maradh al mawt) is according to ‘urf
involving physician assessment, treatment availability, and the nature of the
disease.
·
Definition of
legal death depends on urf and the yaqiin of non-reversible
cardio-respiratory arrest or non-reversible brain death.
·
Permissibility
of withdrawing life support in case of yaqiin of death as defined above.
·
It is better
not to start artificial life support in futile cases because it is a difficult
decision to withdraw it later according to the principle.
·
Al baqau ashalu
min al ibtida (Majallat article No 56) OR yughtafar fi al baqaau ma la
yughtafar fi al ibtida (Majallat article No 55).
TRANSPLANTATION 1
·
Transplantation
is permissible if there is yaqiin of benefit (maslaha) for the
recipient and minimal risk (dharar) for the recipient and living donor.
·
Permissibility
of transplanting organs, tissues, and cells from animals, dead humans,
naturally aborted fetuses because of maslaha for the recipient and no dharar
for living humans.
·
Non
permissibility of transplanting from living fetuses, unencephalic living
infants, or terminally ill fetuses because it contradicts hifdh al nafs.
TRANSPLANTATION 2
·
Trade in
transplant organs is non permissible will result in harm (dharar) for
the poor and weak in society.
·
Non
permissibility of transplanting ovaries and testes because it contradicts hifdh
al nasal / hifdh al nasab. Transplantation of other reproductive
organs in allowed under necessity daharurat because they do not carry
hereditary characteristics.
HEREDITY AND GENETICS
·
Human cloning
is non permissible because it violates hifdh al nasl. Cloning of organs
and tissues is allowed under necessity dharurat.
·
Cloning is
permissible in plants, animals, and microorganisms if there is benefit (maslaha)
and no harm (mafsadat).
PRINCIPLES OF BIOMEDICAL RESEARCH
·
Respect for
autonomy of the research subject to consent (hifdh al nafs) and prevent
harm (dharar).
·
Benefit (maslahat)
·
Ihsan
·
Justice
CONCLUSIONS AND RECOMMENDATIONS
·
Maqasid and
qawaid cannot be used when there is nass, la massagh li
alijtihad fi mawrid al nass (Majallat article 14).
·
Maqasid and
qawa’id are not daliil but are a guide to systematic thinking.
·
A book of
principles in medicine similar to majallat in the commercial area is
needed.
·
Systematic
analysis of all medical procedures existing and anticipated instead of waiting
for a problem to arise and a fatwa is asked.
TABLE 1: DECISION NO (18/5) 167 DATED 9-14 JULY 2007 ON MAQASID AL
SHARI’AT AND THEIR ROLE IN DERIVATION OF LEGAL RULINGS
1.
Maqasidf al
shari’at are general meanings and wisdoms as well as objectives that the
lawgiver aimed at fulfilling in legislation to assure benefits on earth and in
the hereafter.
2.
The roles of maqasid
in ijtihad are: (a) comprehensive view of the legal texts and
rulings (b) Maqasid al shariat
are considered the murajih that must be differences among
scholars (c) tabassur of consequences of actions of mukallifiin
and to apply shariat rulings on them.
3.
Maqasid al
shari’at in their different levels are the basic and suitable context for
human rights.
4.
Maqasid al
shari’at are important in in ijtihad.
5.
Correct use of maqasid
does not yu’attil the dalaalat al nussus al shar’iyat and correct
ijma.
6.
It is
importance to study the different
dimensions of maqasid al shari’at in the social, economic, educational,
political fields etc.
7.
Iistihdhaar
maqasid al shariat has an impact in sadiid understanding of the shariat
discourse.
8.
Use of
maqasid al shari’at is important in applying shariat rulings on the
realities, novelties of contemporary financial transactions in order to assure tamayuz
in formulating Islamic products and their independence from traditional
formulations.
NOTE