Uṣūl al fiqh (the principles of Islamic jurisprudence)

Uṣūl al fiqh is a methodology and collection of principles by which Muslim jurists deduce legal rulings from the foundational sources of Islamic law which are primarily the Qur'an and the hadith (reports about the sayings, actions and approvals of the Prophet). Further, the jurist will consider other sources, such as ijmā´ (the consensus of the Muslim scholars regarding a particular issue at a particular time, which is considered to be legally binding) and qiyās (analogical reasoning) by Sunni Muslims or ´aql (intellect) by Shiite Muslims.

The fundamental methodology, systematised by the prominent Imam al Shafi´i (d. 820 CE) some 1200 years ago, is still employed by qualified Muslim jurists in order to deduce rulings on a number of matters, including the more challenging issues brought about by the modern medical advancements of the last few decades. Many issues, such as assisted reproduction, genetic testing, euthanasia, stem cell research, cosmetic surgery and postmortem issues, to name a few, have understandably little explicit mention in the primary sources. Thus, without clear evidences or juristic precedent on such issues, jurists faced with new ethical problems have taken recourse to the maqāṣid al sharī ´a, the purposes of the law.

Maqāṣid al sharī´a (the Purposes of Islamic law)

The theory of maqāṣid al sharī´a, the purposes of Islamic law, was pioneered by Abu Hamid al Ghazali (d. 1111 CE), and later the Andalusian scholar, Abu Ishaq al Shatibi (d. 1388 CE). Agreed upon by the majority of Islamic scholars, it states that the basis of the shari´a lies in promoting five purposes: dīn (religion), nafs (life), nasl (progeny), ´aql (intellect) and māl (wealth). Numerous strands and branches of medicine are clearly deeply interwoven within all these five purposes, directly or indirectly. Thus, anything that preserves one of these five purposes is regarded as beneficial, while anything that contributes to its detriment is immoral, and preventing it is deemed good. Using the maqāṣid al sharī´a and, moreover, applying the principles of qiyās (analogical reasoning), ´urf (custom), istiḥsān (juristic preference), istiṣḥab (presumption of continuity) and maṣlaḥa mursala (considerations of public interest), specific Islamic legal rulings could be elicited on novel hitherto unprecedented issues. It is unfortunately beyond the scope of this article to discuss each of these principles in turn. However, the execution of this exercise on numerous different ethical issues, performed throughout the ages has allowed the crystallisation of the qawā´id fiqhiyya, or the Islamic legal maxims.

The five qawā´id fiqhiyya of Islamic medical ethics

The qawā´id fiqhiyya or Islamic legal maxims ‘refer to a body of abstract rules which are derived from the detailed study of fiqh (jurisprudence) itself’.6 They highlight the underlying structure and patterns of rulings, having been extrapolated from the ever-growing corpus of legal literature accumulated over centuries of Islamic scholarship. Hundreds of universal rules and subordinate rules were inductively derived from existing rulings that had been established by the application of uṣūl al fiqh on the primary sources, and out of these, there are five of particular significance to medical practice and the field of Islamic medical ethics:

1. Principle of Qaṣd (intention): Echoing the first maxim found in several Islamic books, this principle states that all affairs are judged by their intention (al umūr bi maqāṣidihā). Thus, the same act will be judged differently depending upon the intention, and this, therefore, requires a medical practitioner to assess his/her intentions before undertaking the act. Taking the example of pain relief in terminal care, the prescription of morphine with the intention of causing respiratory depression and therefore premature death is euthanasia and would be deemed impermissible. On the contrary, providing analgesia with respiratory depression as an unintended consequence would be deemed permissible, just as with the principle of double effect. Other subprinciples are also rooted in this overarching principle of intention. For example, means do not justify the ends (al waṣā´il lahā ḥukm al maqāṣid) and, therefore, immoral methods used to achieve beneficial medical purposes are deemed impermissible.

2. Principle of Yaqīn (certainty): This maxim in essence supports what we refer today as evidence-based medicine. It acknowledges that most medical decisions are relative and based on probability. Although yaqīn (certainty) is theoretically the ideal, sound medical judgement as a minimum should be based on ghalabat al ẓann (predominant conjecture), which is superior to ẓann (mild inclination) or shakk (doubt). A further subprinciple in this area is that certainty is not removed by doubt (al yaqīn la yazūlu bi al shakk). An existing established truth or known assertion is only to be modified or disregarded with compelling evidence, and cannot be removed by an uncertainty or doubt. Another sub-principle is that all medical procedures are deemed permissible unless their prohibition is certain (al aṣl fi al ashya´i al ibaḥa), although this has exceptions most notably in those procedures related to reproductive functions.

3. Principle of Ḍarar (injury): This principle states that the basic premise is that injury should be relieved (al ḍarar yuzāl), thus providing the justification for medical intervention. However, a sub-principle is that any harms of a therapy should be minimised (al ḍarar yudfa´u bi qadr al imkān). However, if they are unavoidable, then the side effects should always be less in magnitude than the benefits (al ḍarar la yuzāl bi mithlihi). In other words, the avoidance of harm has priority over the pursuit of a benefit of equal or lesser worth. Other maxims in this category also state that harm may not be removed by a similar harm, and that if two harms coincide, then a ‘lesser of two evils’ approach should be opted for to prevent greater harm. This can be applied to issues such as infectious disease, where the public interest takes priority over individual interest, and confidentiality can be superseded by a public health concern.

4. Principle of Ḍarūra (necessity): The fourth principle states that cases of necessity can render an otherwise prohibited action as permissible (al ḍarūrāt tubīhu al maḥḍūrāt). Importantly, the level of difficulty or necessity must be considered as the dispensation made for ease should be proportional. This can be applied to medical interventions, such as sterilisation which is absolutely prohibited in Islam, but which may become permissible if a potential pregnancy severely threatens a woman's life, for example due to previous caesarean operations. The limitation is that if the necessity finishes, enforcement of the default prohibition resumes (idhā zāla al māni´u, ´āda al mamnū´u).

5. Principle of ´Urf (custom): As the shari´a claims applicability over varying times and places, naturally local custom is taken into consideration, and thus custom or precedent, provided it does not contradict the shari´a, has legal force. The rule is thus by the custom (al ´āda muḥakkama). The disclaimer is that the customary practice must be the predominant and widespread practice of medical practitioners in order to be rendered valid.

Beneficence

Beneficence refers to the promotion of welfare, denoting acts of mercy, unstinting love and selfless humanity. This is the principle that has, since time immemorial, been instinctively associated with the physician in every culture. It is the central driving principle behind a number of ethical theories, such as utilitarianism, and as with the other Abrahamic faiths, it plays a fundamental role in Islam.

The concept of beneficence permeates through almost every layer of Islamic thought, from the material to the metaphysical. For instance, among the most commonly voiced attributes of God by Muslims is ‘al Raḥmān’ and ‘al Raḥīm’ both of which refer to subtly different dimensions of the concept of beneficence. This notion is also found countless times in the Qur'an. For example: ‘God commands you to uphold justice and to do good to others…’7 and ‘Do good; verily, God loves the beneficent’.8 The Prophet also encouraged people to do good works and in particular to help others. He is once reported to have said: “God is in the aide of His servant as long as His aide is in the assistance of others”.9 This hadith indicates that removing a misfortune, distress or hardship from a fellow human and fulfilling his or her need are greatly encouraged in Islam. Indeed, in the earliest known book about Islamic medical ethics, ‘Adab al ṭabīb’ or ‘Ethics of the Doctor’ written in the twelfth century, the author, al-Ruhawi recommends that ‘the physician must guard all his five senses and not use them except for a beneficial purpose and to repel harm...’.10 These evidences illustrate that the concept of beneficence is of central importance in Islam, and in particular for the physician.

Non-maleficence

Conversely related to the previous principle, non-maleficence is the concept of avoiding the risk of harm to others. Inevitably, when a physician acts, there are harmful side effects, and so this principle aims to balance the benefit with the harm, thereby acting in the best interests of the patient.

In Islam, the concept of avoiding harm is so important that there exists, as aforementioned, a dedicated legal maxim to this effect. The principle of al ḍarar yuzāl dictates that harm is to be removed and that it takes priority over an act with a comparable benefit. A further tradition states ‘In Islam, no harm shall be inflicted or reciprocated’. This is one of the most important traditions in Islamic social ethics that is ascribed directly to the Prophet and is agreed upon by jurists belonging to virtually all the different schools of thought in Islamic jurisprudence. Thus, for example, an elective abortion of a viable foetus that Islamically has a soul, in an otherwise healthy mother, is considered a reprehensible crime, equitable to murder. However, the situation is not as straightforward if the aforementioned principle of ḍarūra (necessity) is appropriately applied.

There exist in the classical jurisprudence books a number of chapters that deal with the incompetent doctor. Islam greatly emphasises the importance of ´ilm (knowledge) and obligates the seeking of knowledge upon every individual, giving great respect and honour to those who possess it: “Behold! In the creation of the heavens and the earth, and the alternation of night and day, there are indeed signs for men of understanding”.11 The Prophet is reported to have said “Whoever follows a path in the pursuit of knowledge, God will make a path to Paradise easy for him”.12 The physician is in particular encouraged to become a master of his or her field. Given that medicine is an arena in which decisions can have life-threatening consequences it is unsurprising that the Prophet gave a warning to those who would practice this art without sufficient knowledge: “Any doctor who starts the practice of medicine, and is not competent as a doctor, and he makes a mistake, then he will be held responsible”.13 Imam Ibn Qudama, a medieval Muslim jurist, explained this at length in one of his books, stating that if the doctor does not possess the necessary qualifications, knowledge and expertise, yet still chooses to practice medicine and then transgresses, he would be sinful before the eyes of God. Non-maleficence is thus a defining feature of Islamic medical ethics.

Justice

The principle of justice acts to ensure fairness and equity, aspiring to fulfil the rights of all actors in any given scenario. In the realm of healthcare ethics, Gillon has highlighted three key manifestations of this principle: distributive justice (where limited resources are distributed fairly, rights-based justice (emphasising respect for people's rights) and legal justice (respect for morally acceptable laws).14

Justice is a central principle in all realms of Islamic teaching. Muslims are instructed to be just in every sphere of life, whether spiritually, legally, politically or financially, and as such, the notion of justice has been stressed innumerable times in the Qur'an and in the sayings of the Prophet. In the Qur'an, it is said “If you judge, judge in equity between them. For God loves those who judge in equity”15 and “God commands justice and good deeds”.16 Importantly, like Kant's universal maxim whereby each person should be regarded as an end in themselves, rather than solely a means to an end, in Islam, we find that similar reminders exist to give each actor their due. Salman al Farsi, a companion of the Prophet said to his fellow companion, “O Abu ad-Dardaa, your Lord has a right over you. Your family has a right over you and your body has a right over you. Give to each its due”.12 Furthermore, each person is also to be treated equally, and no distinction is made based on culture or ethnicity. The Prophet Muhammad, in his famous last sermon said: “All mankind is from Adam and Eve, an Arab has no superiority over a non-Arab nor a non-Arab has any superiority over an Arab; also a White has no superiority over a Black nor a Black has any superiority over a White except by piety and good action”.17

Although we have seen a number of evidences elucidating the area of rights-based justice, it is worthwhile to note that the area of distributive justice is also directly addressed in the Islamic scriptures. This is unsurprising given the broader emphasis of Islam as societal faith, a religion that is best practiced in a communal environment. Distributive justice is most evident in the concept of maṣlaḥa mursala, that is, public interest or common good. This principle refers to issues about which there is no categorical judgement or reference to in the shari´a, but which are deemed permissible because of their general benefit to the community, as long as they do not go against any existing judgement. Driving the genesis of this ethical principle was the belief that the ultimate goal of the shari´a requires doing justice while preserving people's best interests. Although there is some contention with regards to its validity as an independent source for legislation,18 it is a well-established principle in orthodox Islam. The classical jurists have commented upon the parameters of what constitutes ‘best interests’: “…its meaning is protecting the purposes of Revelation. There are five purposes of Revelation for mankind: to preserve (1) their religion, (2) their lives, (3) their lineage, (4) their minds and (5) their property. Everything that promotes the preservation of these five purposes is beneficial and everything which damages them is a source of corruption”.19 Therefore, justice according to orthodox Muslim scholars is ultimately sourced in the sacred sources and revolves around the promotion of what God has decreed to be good, and also abstention of what God has prohibited.

Autonomy

The principle of autonomy refers to the acknowledgement of, and respect for, each individual having the entitlement to hold views, decide and act according to their beliefs and value systems, provided that this does not cause harm to or impinge upon the rights of others. Literally meaning ‘self-rule’ or ‘self-governance’, autonomy has been considered by many ethicists to be the most important ethical principle, which supersedes all others.20 Beauchamp and Childress use the notion ‘respect for autonomy’, indicating that an individual has the capacity for self-rule and that others should have a particular reaction to that capacity.

Islam greatly emphasises the responsibility of the individual and the protection of human rights. Given this promotion of the individual, it follows that ‘there is considerable room for personal autonomy in Islam ... The sense of personal liberty that this allowed contributed to the strength of the social system’.21 By creating man as His vicegerent on earth, God endowed humans with intellect and accountability for their actions, and honoured their status: “We have honoured the sons of Adam”.22

This sense of the importance of the individual is supported by the lack of a clergy in the Islamic tradition: each person is directly accountable for his/her actions before God without intermediary. The great emphasis placed upon the importance of ´ilm (knowledge), as discussed earlier, is essential in coming to a reasoned decision, allowing for informed consent. Just as seeking knowledge is obligated, similarly that which may cause detriment to the intellect or to one's decision-making capacity is strictly prohibited, namely alcohol and other intoxicants.

It is important to mention, however, that although the underlying essence of an individual's autonomy is something which can be said to be intrinsic to the Islamic faith, the practical outward manifestations with relation to public interest, and the ultimate view of the human being's subservience to God contrast significantly with the Western philosophical model. While individual autonomy and the pursuit of knowledge are promoted, so too are the potentially competing values of family, society and the aforementioned consideration of public interest. Indeed, the importance assigned to autonomy by liberal individualism is somewhat at odds to the belief systems and cultural practices of some faith-based communities, many of which remain entrenched in paternalistic attitudes towards healthcare provision. A Western grounded philosophy of autonomy, which emphasises individualism, personal gratification and self-actualisation, denies the role of faith in a supernatural being, and often also the greater importance of societal benefit and public interest over the rights of the individual. This overriding consideration can, in fact, be an example of autonomy contradicting beneficence, as a third party can be prevented from providing aid or intervention without the exclusive authority of the individual.23

Islam, on the other hand, does not permit man to simply behave, or indeed misbehave, as he wishes, but rather gives a holistic set of guidelines for all facets of life and an example in the life of the Prophet. This is followed by the free will to either accept or reject the divine command: ‘Let there be no compulsion in religion: the Truth stands out clear from Error’.24 The autonomy of man to choose his own path is thus still protected, and is manifestly evident in the story of the first man to be created, Adam, whose first act of free will was to disobey and eat of the forbidden fruit of paradise.

Practically, for the healthcare provider, where the Muslim is likely to want to exercise autonomy is in ensuring privacy so that, especially for females, modesty can be maintained. This might manifest in a request to be seen by a same-gender physician if available, and where possible, this should be respected. However, even this can be overridden in cases where the principle of ḍarūra (necessity) is applied, and so if a same-gender physician is not available, it becomes Islamically permissible for the Muslim patient to be treated by a physician of the opposite gender.