Integrated Medical Education Resources: 221028P - MAQASID AS-SHARIAH AND QAWAID AL-FIQH: THE GUIDING PRINCIPLE IN OUR MEDICAL PRACTICE

Presentation at the Convention of the Islamic Hospital Consortium (IHC), the Federation of Islamic Medical Associations (FIMA), and the Pakistan Islamic Medical Association (PIMA) on 28 October 2022. By Professor Omar Hasan Kasule Sr. MB ChB (MUK), MPH (Harvard), DrPH (Harvard) Professor of Epidemiology and Bioethics

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 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 - 1:

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.

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'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.

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 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 4^th 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)

SCENARIO - 1:

An 80-year fully conscious and competent old man with advanced incurable cancer needed palliative chemotherapy.
The family objected when the doctor wanted to obtain informed consent from the patient because that would involve disclosing the diagnosis which would make the patient very sad and depressed.
The family wanted to make the decision without informing the patient.
What should the doctor do? Provide your moral reasoning.

SCENARIO - 2:

A 30-year old woman presented with classical signs of acute appendicitis.
She consented to an operation to open the abdomen and remove the inflamed appendix.
The surgeon found a previously undiagnosed ovarian cyst and decided to remove it as well
The removal was a simple and safe procedure that would not increase the duration of the operation.
The head nurse refused because the patient had not given consent.
What should the surgeon do? Provide your moral reasoning.

SCENARIO - 3:

A 90-year old in ICU with stage 4 widely metastasized cancer and multi-organ failure was told by the doctors that there was nothing they could do to reverse the course of the disease and that they could only provide symptomatic treatment.
He asked to be discharged to die at home. His children objected saying that he needed complex nursing that they could not provide at home.
What should the healthcare workers do? Provide your moral reasoning.

SCENARIO - 4:

The thoracic surgeon wanted to carry out a de-bulking operation to decrease lung cancer mass to enable the patient breathe easier and he told the patient of the high risk of death from hemorrhage.
The patient 85-year old patient was drowsy because of medication and was suspected of suffering from dementia.
The doctor was not sure whether the patient was capable of understanding the explanations given and making serious decisions about the operation and he had no relatives nearby.
What should the doctor do? Provide your moral reasoning.

SCENARIO - 5:

A patient presented to the clinic with vague complaints in the abdomen and worries about cancer.
Physical examination and investigations revealed no pathology.
The doctor was angry with the patient for wasting clinic time when he was in good health.
As the patient was leaving he told the doctor that his uncle had died the week before of stomach cancer. The doctor did not respond.
What should the doctor have done? Provide your moral reasoning.

SCENARIO - 6:

A young man sent for pre-employment examination filled out a health questionnaire and mentioned no health problems at all.
Physical examination revealed a severely dislocated shoulder and an unhealed acromial fracture.
When asked about them he admitted that they caused him pain from time to time but that he was patient and did not care much about them.
What should the examining doctor report? Provide your moral reasoning.

SCENARIO - 7:

An 80-year old diabetic man, whose son had died last year from transfusion of mismatched blood, was admitted to the same hospital for observation after falling at home.
He insisted that no procedure be done without written approval by his physician son whom he wanted to sit by his bedside all the time.
Nurses were inconvenienced by having to get written permission for routine monitoring of vital signs and insulin injections.
The nurses refused to comply to his wishes and he refused to cooperate leading to a stand-off.
What should the doctor in charge do? Provide your moral reasoning.

SCENARIO - 8:

A young neurosurgeon planned to operate on a patient with lumbar spinal injury that had a 5-10% chance of success.
He was perplexed about taking informed consent.
If he informed the patient that the operation could go wrong and result in paraplegia with a 90% chance the patient would refuse the operation.
If the operation was not carried out there was a 95% chance of further deterioration leading to paraplegia after a few months.
What should the neurosurgeon do? Provide your moral reasoning.

SCENARIO - 9:

A 30-year old patient of multiple sclerosis had 5 years while in good health designated her husband as the decision maker.
When she lost consciousness the doctors needed a decision whether to put her on life support.
The husband who had by that remarried and lived in a separate house decided against life support because it would prolong her suffering.
Her father intervened and decided for life support because that would be in her best interests.
What should the healthcare workers do? Provide your moral reasoning.

SCENARIO - 10:

A university professor with previous episodes of transient stroke had written a directive and had it witnessed that if he lost consciousness he would not like to be resuscitated.
Years later he was brought to the hospital unconscious from head injuries sustained in a car accident.
The doctors reading his directive in his shirt pocket decided not to resuscitate him but his wife insisted that he be resuscitated.
What is the right course of action by the doctors? Provide your moral reasoning.

SCENARIO - 11:

Noticing a threefold increase in the diagnosis of late-stage colon cancer that was fatal within a year, the city council passed a resolution requiring all men and women above 40 to undergo colonoscopic screening once every 5 years, with the warning that those who refused screening would not be treated for free if they got cancer. What do you think of this? What is your moral reasoning?

SCENARIO - 12:

A mentally retarded Down syndrome youth aged 15 years had been to court several times for sexual attacks on toddlers. The judge ordered the doctors to suppress his sexual aggression by use of hormones and if that was not effective to remove his testes.

SCENARIO - 13:

A urologist with 20 years’ experience in renal transplant refused to donate one of his kidneys to his identical twin brother who had found no other matching kidney. The Saudi Council for Health Specialties started de-registration proceedings for failure to give benefit obligatory on all physicians.

SCENARIO - 14:

A new company in Riyadh advertised on TV and newspapers offering direct genetic testing services. Consumers would pay for a kit using a credit card and they would use the kit to collect a sample of blood by finger prick and send it back by mail. Results would be sent back after a week.

SCENARIO - 15:

A nurse manager has just discovered that his colleague, a surgeon, is Hive, but has kept the information secret and continued operating on patients taking infection control precautions. An emergency case requiring immediate surgery is wheeled into the emergency room at midnight and there is no other surgeon available.

SCENARIO - 16:

A 90-year-old 100% dependent on a respirator with no hope of independent life asks the doctor to disconnect the machines so that he can die in peace but the doctor refuses. He has no serious disease; he had become dependent on the respirator during a prolonged and poorly managed episode of pneumonia.

SCENARIO - 17:

In order to save life, a senior medical officer allowed surgery under unclean conditions at the site of a major natural disaster with too many patients who could not be transported to the hospital in reasonable time.