PURPOSES (MAQASID) AND PRINCIPLES (QAWAID) IN MEDICAL PRACTICE, LEADERSHIP, AND MANAGEMENT ETHICS

Presentation at the Malaysian Army Medical Department Program on Comprehensive Leadership in Medical Management for an Ibadat Friendly Hospital on 07 August 2019; by Professor Omar Hasan Kasule Sr. MB ChB (MUK), MPH (Harvard), DrPH (Harvard) King Fahad Medical City, Ministry of Health, Saudi Arabia

SMALL and BIG BOX THINKING: no escape from boxes

• Creativity and innovation in practice, leadership, and management require thinking outside the traditional and familiar small box
• Go out of the small box and operate within an enclosing larger box with a bigger and more powerful vision of maqasid and qawaid
• Asian societies that have experienced renaissance went outside the smaller box of imported science, technology, and management skills and operated within a larger box that also integrated their centuries-old wisdom, values, and philosophy.

CONCEPT OF MEDICAL ETHICS:

• The concept of medical ethics is a misnomer from a strict Islamic perspective. The correct term should be medical jurisprudence because ethics is not an independent discipline but is part of the law (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 LAW (FIQH):

• In the first period (0 to circa 1370H) it was derived directly from the Qur’an and sunnah.
• 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 the 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 - 1

• Maqasid al shariat is 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, maqasid duniyawi. 

EVOLUTION OF MAQASID AL SHARI’AT - 2

• Each purpose has dual aspects: securing a benefit, tahsil, and preservation with prevention of harm, ibqa. The term ri'ayat 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. 

EVOLUTION OF MAQASID AL SHARI’AT - 3

• 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

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 was 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

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

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)

CASE SCENARIO #1

• A 90-year old man fully conscious man with advanced-stage cancer metastasized all over the body. For the past 6 months, he has been in the intensive care unit of a private hospital on artificial life support, artificial feeding, and renal dialysis with no visible improvement. 

• The family has used up all savings and sold the house to pay the ICU costs and are not sure about further sources of funds

• The hospital manager is disturbed because he has turned away a case of an unconscious young neurologist involved in a car accident.

CASE SCENARIO #2

• A hospital manager disciplined a cardiologist by deducting one day’s salary because he arrived 1 hour late for his afternoon scheduled cardiac outpatient follow-up clinic.  

• The cardiologist had spent the morning at a community health education program on the prevention of heart disease. Community members were very interested and kept asking more questions beyond the scheduled time.

CASE SCENARIO #3

• A hospital manager of a private hospital was perplexed about what to do about credible reports from outside the hospital that his senior surgeon was involved in serious social misbehavior.

• The consultant surgeon had worked in the hospital for 10 years with no negative reports about him from patients and staff. He was not mentioned in any of the morbidity and mortality reports.