160202P - THE ISLAMIC THEORY AND PRINCIPLES OF ETHICS WITHIN THE GLOBAL ETHICAL DIVERSITY

Presented via online at the Postgraduate Program organized by Prime Institute of Public Health (PIPH) held in Peshawar, Pakistan on 02 February 2016 by Professor Omar Hasan Kasule Sr.

Introduction:

• This paper presents a system of ethical theories and ethical principles developed and used in West Asia, South East Asia and other parts of the Muslim world over the past 17 years.
• A basic premise of this framework is that ethics is embraced fully within the ambit of the Law since Islamic law contains both positive law and moral law.
• Under Islamic law the legal and the moral are perfectly equivalent; every moral is legal and vice versa and every immoral is illegal and vice versa.

Methods:

• The study aimed at discovering ethical theories and ethical principles in Islamic Law to compare with generally accepted theories and principles.
• Results first presented at the Scientific Conference of the Jordanian Islamic Medical Association in Amman in 2004 and have been presented at many conferences in other countries.
• Two sources of Islamic Law were used: (a) The purposes of the Law (maqasid al shari’at) developed starting in the 5^th Islamic century as the basis for an Islamic ethical theory and (b) Principles of the Law (qawa’id al fiqh), as the basis for ethical principles.

Purposes of the Law (maqasid al shari’at) 1: early beginnings

• The Law has 5 governing higher purposes that are its legal theory; they govern all details and branches of the Law.
• Development of this legal theory can be traced to the 5^th Islamic century and the pioneers were Shaikh al Haramain al Juwayni and his student Hujjat al Islam Abu Hamid AlGhazzali. Contributions were made 2 centuries later by Shaikh al Islam Ibn Taymiyah and his student Abu Qayyim al Jawziyat.

Purposes of the Law (maqasid al shari’at) 2: later development

• The theory was formulated systematically in the form it is used today by the Spanish Andalusian scholar of the Maliki School of Law, Abu Ishaq AlShatibi in his 8^th century legal manual Almuwafaqaat fi usuul al shari’at.
• The theory was not used a lot in the past 7 centuries because the legal dilemmas that arose were simple and could be resolved by existing legal texts and precedents.
• Modern medical technology has given rise to many legal and ethical dilemmas that can be resolved only by reference directly to the legal theory.

The 5 Purposes of the Law = ethical theory

• For an act to be considered ethical, it must conform to or not violate one of the 5 major purposes of the Law.
• The advantage is that one internally consistent legal or ethical theory is applied to various situations.
• The 5 purposes aim at protecting (hifdh), preserving (ibqaa), and promoting (tatwiir) of 5 entities that among them cover all aspects of human endeavor and medical treatment.

 The 5 Purposes of the Law = ethical theory

• Morality/religion, hifdh al ddiin;
• Life and health, hifdh al nafs;
• Progeny, hifdh al nafs;
• Intellect, hifdh al ‘aq
• Resources, hifdh al maal.

 The 5 Principles of the Law (qawa’id al fiqh) 1

• The principles were developed by legal scholars from basic sources of the Law by inductive reasoning. They provide quick tools for reasoning out complex cases.
• They were formulated in a systematic way in the 19^th Gregorian century in the Turkish Ottoman Legal gazette called Majallat al Ahkaam Aladliyyat.
• These principles were detailed for commercial transactions; the challenge today it to develop them in detail for medical application.

 The 5 Principles of the Law (qawa’id al fiqh) 2

• The principles help in resolving ethical dilemmas in which the purposes may be apparently contradictory such as prolongation of life in the intensive care unit (protection of health) that is prohibitively expensive ((protection of resources).
• They also provide more detailed and specific guidelines on matters covered in general by the Purposes.
• Each of these principles has many sub-principles that cover the whole spectrum of ethical dilemmas.

The 5 Principles of the Law = Islamic ethical principles 1

• Under the principle of certainty of intention (qa’idat al qasd) actions are judged by their inner intentions and motivations and not by their external manifestations.
• Under the principle of certainty (qa’idat al yaqeen) decisions must be evidence-based.
• Under the principle of injury (qa’idat al dharar) the benefits (maslahat) of an action must out-weight its harm (mafsadat) and if the two are of equal worth the action is not taken.

The 5 Principles of the Law = Islamic ethical principles 2

• Under the principle of hardship (qa’idat al mashaqqat) legal prohibitions are temporarily set aside in order to undertake actions that will preserve life.
• Under the principle of custom (qa’idat al ‘aadat) existing consensus guidelines a standard operating principles should be followed because they have the force of Law.

The 4 ethical principles vs the Islamic ethical principles

• The 4 principles of Beaumont and Childress are subsumed under one Islamic principle of preventing injury (qa’idat al dharar).
• AUTONOMY: The patient has the right of autonomy because she/he has his best interests at heart and cannot willfully and knowingly take a harmful decision.
• BENEFICENCE / NONMALEFACENCE: Robust rules for balance of injury and benefit in cases of ethical dilemmas.
• JUSTICE: Assurance of justice prevents harm due to injustice.

 Conclusion and recommendations:

• Islamic Law has formulations comparable to international formulations that adequately cover the needs of ethical theory and principles in ethical analysis.
• Ethical analysis in Muslim countries / communities will be easier and more acceptable if approached from Islamic Law.