200204P - MEDICAL ETHICS AND THE LAW: A COMPLEX EVOLVING RELATIONSHIP

Prepared for presentation by Prof. Dr. Omar Hasan Kasule, Sr. Chairperson, Human and Medical Ethics Committee, King Fahad Medical City, Riyadh, Saudi Arabia.

Abstract 

This paper will use actual case studies to illustrate the differences between Islamic and western perspectives of the relation between ethics and law.

In Islam legality is perfectly equal to morality (ethics). What is legal (halal) is also ethical and what is illegal (haram) is unethical. This is because Islamic law is comprehensive comprising both positive law and morality. Secularization marginalized the faith-based moral dimension in western law because this dimension was suspected of being a proxy for religion since most moral judgments have a religious origin. A new western discipline of medical ethics with specific theories and principles arose to handle issues of morality not covered by the positive law; no such discipline was necessary for the Islamic perspective because ethics was already part of the law. However, in the past few decades, the western perspective has converged towards the Islamic one as ethical issues such as abortion and artificial life support are covered by-laws passed by western legislatures. However, there are serious differences in the two perspectives in the formulation and implementation of legal provisions dealing with ethical issues. Islamic legal rulings called fatwa are used to resolve specific ethical dilemmas presented to the jurist generally outside courts of law. Western legal acts passed by the legislature are used to settle ethical controversies in or outside courts of law.

Islamic law is more flexible by stating guiding principles leaving it to the jurist to issue legal rulings (fatwa)  for specific cases based on a specific consultation; with the result that different rulings may be issued for the same case depending on temporospatial variations. There are some generic fatwas and some of these fatwas are gazetted by the government but are rarely used in court proceedings because the resolution of ethical dilemmas is generally consensual. Fatwas are obeyed by the parties involved because of their religious basis. To maintain flexibility, there is marked resistance to the canonization of these fatwas to resemble western legal acts.  The nearest to canonization, the publication of majallat al-Ahkaam al-Adliyya that listed legal axioms or principles (qawa’id al-Fiqhiyyah) with application to commercial transactions. Similar work on medical applications is still waiting to be written.

Western legal acts on ethical issues are used to resolve issues not easily resolved by ethical principles. They are very not detailed with specific provisions to enable court judges to rule on specific cases. This detailed legislation is needed for ease of application in adversarial court proceedings in which each side defends its stand. This approach assures uniformity in court judgments but is not suitable for specific temporospatial or personal/family circumstances that are involved in ethical issues. This leads to a lot of arguments in the courts to apply the legal articles to specific cases with their complications. The legal acts and court judgments based on them do not have the moral authority of the fatwa and disputes may persist for a long time.

Biography

Prof. Dr. Kasule is a physician holding a doctorate in epidemiology from Harvard University, Boston, USA. His doctoral research was on the Epidemiology of Childhood Epstein-Barr Virus Infection in Relation to the Risk of Burkitt’s Lymphoma and Malarial Infection. He had the experience of cancer epidemiology research at the Harvard Daba Farber cancer Institute and moved to Virginia where he was a principal investigator of an NIH national sickle cell screening project. Since 1995 he held appointments as a professor at faculties of medicine in Malaysia, Brunei, and Saudi Arabia. He held the appointment of Deputy Dean for research at the International University of Malaysia 1995-2005 and was overseeing the research and ethics committees. He was on the research committee of the University of Brunei from 2005 - 2009. He is currently the chairman of the Ethics Committee and the Institutional Review Board (IRB) of King Fahad Medical City in Riyadh. He founded and was the first editor of the International Medical Journal.

Over the past 18 years, he has been teaching and presenting conference papers on clinical ethics and research ethics worldwide. He has published on ethics in journals and on his own websites.