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Presentation at Tirana, Albania on 23 - 24
October 2015, by Professor Omar Hasan Kasule Sr. MB ChB (MUK), MPH
(Harvard), DrPH (Harvard) Chairman of the Ethics Committee King Fahad Medical
City
Concept of
Medical Ethics:
·
The concept of
medical ethics is misnomer from a strict Islamic perspective. The correct term
should be medical jurisprudence because ethics is not an independent discipline
but is part of fiqh.
·
Islamic Law is
comprehensive encompassing positive law and morality.
·
The modern
discipline of medical ethics arose in the European civilization as a necessity
to deal with issues of a moral nature that the existing secularized laws could
not handle because they lacked a moral dimension whose source is religion.
Stages of
Evolution of Medical Fiqh:
·
In the first
period (0 to circa 1370H) it was derived directly from the Qur’an and sunnat.
·
In the second
period (1370-1420) rulings on the many novel problems arising from drastic
changes in medical technology were derived from secondary sources of the Law
either transmitted (such as analogy, qiyaas, or scholarly consensus, ijma)
or rational (such as istishaab, istihsaan, and istirsaal).
·
In the modern
period, The failure of the tools of qiyaas to deal with many new
problems led to the modern era (1420H onwards) characterized by use of the
Theory of Purposes of the Law, maqasid al shari’at, to derive robust and
consistent rulings. Ijtihad maqasidi is becoming popular and will be
more popular in the foreseeable future.
Evolution of Maqasid
Al Shari’at:
·
Maqasid al
shariat are like legal theory with the difference that they are developed
from text whereas normal legal theory is developed from actual court cases.
·
Al Juwayni (d.
478H), in his book al Burhan proposed extensions to the methodology of qiyaas
and also proposed general principles, qawaid.
·
AlGhazali (d.
505H) developed and systematized al Juwayni's ideas, proposed broad principles
of maslahat, and introduced the term maqasid al shariat. He
divided the maqasid into religious, maqasid diini, and earthly, mawasid
duniyawi.
·
Each purpose
has dual aspects: securing a benefit, tahsil, and preservation with
prevention of harm, ibqa. The term ri'atyat al maqasid covers
both tahsil and ibqa. Ibqa as mentioned above has both
preservation and promotion.
·
Ghazzali
divided the maqasid into three parts: necessities, dharurat;
needs, hajiyat; and tawasu'u & taysiir. The third part has
come to be known as embellishments, tahsinat. Some authors included maqasid
al shariat under the general theme of ashbaah wa al nadhair.
·
The new theory
of maqasid al shariat opened the way for further development of the
flexible part of the Law and excited the interest of many jurists, the most
famous being the Andalusian Maliki scholar Abu Ishaq al Shatibi.
·
Most of al Shatibi's
work was an elaboration of the ideas proposed by Ghazzali. The new theory did
not however lead to major practical changes because by that time the Islamic
state was in decline and the flexible part of the law was in the hands of the
political leaders and not the jurists.
·
A lot of books
have been published on the maqasid in the past 20 years and include.
Example of Maqasid Book Covers
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The 5 Maqasid
1:
·
Protection of
diin (hifdh al ddiin)
·
Protection of
life (hiffh al nafs)
·
Protection of
lineage (hifdh al nasl)
·
Protection of
the mind (hifdh al ‘aql)
·
Protection of
wealth (hifdh al maal).
The 5 Maqasid
2:
·
Hifdh al nafs is
the most commonly used in medicine.
·
Hifdh al nasl is
invoked in reproductive matters (obstetrics and gynecology) as well as pediatrics.
·
Hifdh al ‘aql is
invoked in psychiatry.
·
Hifdh al maal is
invoked in health services administration in controlling medical care expenses.
Evolution of Qawa’id
Al Fiqh - 1
·
Qawaid al fiqh are
legal axioms or legal codes.
·
This Qur'an and
sunnat are comprehensive in the sense of providing general principles, qawa’id,
that can be applied to specific situations.
·
These
principles are either stated in the nass or are derived by inductive
reasoning.
·
If we can
derive these principles from the primary sources we can make the process of
decision making easier even for the non-specialist.
Evolution of Qawa’id
Al Fiqh - 2: The First Generation
·
Qawaid existed
and were used from the first generation. They were found in the concise but
comprehensive sayings, jawamiu al kalim, of the prophet; sayings of the
companions, athaar al sahabat, and the sayings of the followers, aqwaal
al tabiin.
·
Qawaid
were also found scattered in the earliest books of fiqh such as Kitaab al
Kharaaj by Abu Yusuf Ya'aqub Ibn Ibrahim (d. 182H), Kitaab al Asl by Imaam
Muhammad bin al Hasan al Shaybani (d. 189H), al Kitaab al Umm by Imaam al
Shafie (d. 204H).
·
Imaam Ahmad Ibn
Hanbal also wrote some qawaid.
Evolution
of Qawa’id Al Fiqh - 3: The Stage of Documentation
·
Qawaid were
scattered in the books of al Juwayni (d. 478H), Ibn Rushd the grandfather (d.
520H), al Nawawi (d. 676H), al Qarafi (d. 784H), Ibn Taymiyat (d. 728H), and
Ibn al Qayyim (d. 751H).
·
The following
authors collected and published qawa’id in dedicated books: Imaam Abu
Tahir al Dabaas al Hanafi in the 4th century (d. ), Imaam al Karakhi (d. 340H), al Dabuusi
(d. 430H), al Subki (d. 771H), al Zarkashi (d. 794H), al Suyuti (d. 911H), Ibn
Nujaim (d. 970H).
Example of Qawa‘id Book Covers
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Evolution of Qawa’id
Al Fiqh - 4: The Stage of Establishment and Coordination
·
The Majallat
was published in 1285-1293H. The Majallat stated 99 basic qawa’id
and expanded their applications to a total of 1790 qawa’id covering a
wide array of issues in commercial transactions in the Hanafi School of Law.
·
The Majallat
is considered an effort in the controversial area of codifying the shari’at.
Many commentaries and translations were made of the Majallat.
·
Unfortunately
this effort was not continued to its fruition in other areas of the Law because
of the decline of the Ottoman state and its eventual overthrow by the European
colonial powers who then went on to impose their legal codes on Muslim
countries and marginalized the shari’at.
Example of Majallat Book Covers
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The 5 Main Qawaid
1:
·
There are 5
basic qawa’id also called al kulliyaat al khamasat. Many
sub-principles can be derived from these.
·
The first principle
is that of intention, qa’idat al qasd that states that an action is
judged according to its underlying intention, qaidat al qasd, al umuur bi maqasidiha (Majallat
article No 2).
·
The second
principle is that of certainty, qa’idat yaqiin that states that
certainty cannot be voided by a doubt, al yaqeen la yazuul bi al shakk (Majallat
article No. 4). This principle is the basis for evidence-based knowledge and
action.
The
5 Main Qawaid 2:
·
The third
principle is the principle of hardship, qa’idat al mashaqqat,
states that difficulty calls forth ease, mashaqqat tajlibu al tayseer (Majallat
article No 17), and necessity makes the otherwise prohibited
permissible, al dharuraat tubiihu al mahdhuuraat (Majallat
article No 21).
·
The fourth
principle is that of injury or harm, qa’idat al dharar, is the most
commonly invoked in medicine and defines the delicate balance between benefit, maslahat,
and harm, mafsadat.
·
The fifth
principle is that custom has the force of law, al ‘aadat muhakkamat.
Qa’idat Al
Dharar: Sub Principles 1:
·
La dharar wa la
dhiraar (Majallat article No 19).
·
Al dharar
yuzaal (Majallat article No 20).
·
Al dharar la
yuzaal bimithilihi (Majallat article No 25).
·
Yatahammalu al
dharar al khaas li dafi al dharar al aam (Majallat
article No. 26).
Qa’idat Al
Dharar: Sub Principles 2:
·
Yukhtaar ahwan
al dharrain (Majallat article No. 29)
·
Al daharar al
ashadd yuzaalu bi al daharar al akahaff (Majallat article No 27)
·
Idha taradha
mufsidataan ruu’iya a’adhamuhuma dhararn bi irtikaab akhafyhuma (Majallat
article No 28)
·
Dariu al
mafaasid awal min jalbi al manafiu (Majallat
article No. 30
·
Ma haruma
fi’iluhu haruma talabuhu (Majallat article No. 35)