1.0 INTRODUCTION TO SHARI’AT
CHANGING USAGES OF THE TERM 'SHARI'AT'
The term shari’at in Arabic means a way, a road, or
a guide. At the beginning it conveyed the meaning of both ‘aqiidat which
is internal and actions that are external manifestations of ‘aqiidat. The
actions include physical acts of worship, ‘ibaadaat; civil transactions,
mu’amalaat madaniyyat; financial transactions, mu’amalaat maaliyyat; judicial matters, mu’amalaat qadhaiyyat,
and matters of political organization, siyaasat. With time the term came to be
used to refer only to the actions excluding ‘aqiidat. With the passage of
more time and increasing secularization, the term shari’at became confined
to the civil transactions of marriage, munakahaat; divorce, talaaq; and inheritance, mawariith. Even the narrow area in which shari’at has retreated after marginalization by secular laws in now threatened
with complete extinction. Our discussion of maqasid al shari’at is an attempt
to revive and bring to life the concept of shari’at as a comprehensive guideline
for society. We shall use the term Law with a capital ‘L’ to refer to the Law of Allah which is the shari’at and this distinguish if from the law of humans which is spelt with a lower case ‘l’.
1.2 THE LAW AS THE BASIS OF MUSLIM SOCIETY AND CULTURE
Islamic Law is
the basis for Islamic culture, civilization, and societal institutions. Islamic Law is complete and comprehensive. It serves
the best interests of humans. It can accommodate new challenges and can grow. Islamic Law is a viable system that has not
been given its due role in shaping Muslim societies because it has been marginalized. The Law is revealed and cannot be derived
from rational reasoning alone however most legal rulings can be understood logically.
APPLICABILITY OF THE SHARI’AT
Islam and its
Law are suitable for all places and all times due to its conformity to basic human nature, satisfaction of human interests,
ease of application, and flexibility. There is in-built flexibility of the fixed part and adaptive flexibility of the variable
part. Modernism defined as scientism, rationalism, and empiricism is not an intellectual challenge to the shari’at
because the shari’at sciences of fiqh
and usul al fiqh are very rational, evidence-based, and systematic. They employ
logic and reason in most of their conclusions.
2.0 INTRODUCTION TO MAQASID al SHARI’AT
OF MAQASID AL SHARI’AT
The Law was revealed
to fulfill specific underlying purposes, maqasid, and for the benefit and in the
interests of humans. Without the Law humans cannot use their reasoning to discover their true interests and establish the
equilibrium between evils, mafasid, and benefits, masalih, since these are relative and not absolute. The maqasid are permanent, consistent, derived form the texts, nass, by induction and are therefore definitive. They ensure that the Law is unchanged or violated. They deal
with whole and not the parts. The maqasid are permanent and are unchangeable. They
define clear objectives for the community and allow it to grow as a living balanced organism. The economic system must follow
the priorities of the maqasid to ensure a just, moral, and happy society.
ROLE OF MAQASID AL AHSRI’AT
to 14th centuries witnessed relatively little change in the ummah in the physical sense and problems that
arose could be resolved by direct reference to the texts, nass, or by analogy to
previous textual rulings, qiyaas. However in the 15th century, technological
changes have created new and complex problems that require a bird's eye view for solution. It is the maqasid that can provide this bird's eye view and thus lead to appropriate solutions.
5 PRIMARY PURPOSES OF THE LAW GIVER, maqasid al shariu ibtida'an
The 5 necessities,
al dharuuraat al khamsat, that are generally referred to as maqasid al shari’at arranged here in order of importance are: protection of religion, hifdh al ddiin; protection of life, hifdh al nafs; protection of the
mind or the intellect, hifdh al 'aql; protection of progeny, hifdh al nasl; and protection of property, hifdh al maal.
Protection of ddiin, hifdh al ddiin, is ‘aqidat and ibadat
in addition to other aspects of the Law that ensure freedom of belief and worship.
Protection of life, hifdh al nafs, is protection of the body from harm and involves activities of daily
living, ‘aadaat al hayaat, like eating; civil or financial transactions,
mu’amalaat; and criminal justice to ensure protection of life. It could take the forms of quarantines
and isolation in epidemics, and liability for medical negligence.
Protection of progency, hifdh
al nasl, is assured by marriage, child-birth within the marital bond, and proper child upbringing.
Protection of the mind, hifdh al ‘aq,l is assured by normal psychosocial relations as well as
prohibition of alcohol and drugs.
wealth, hifdh al mal, is assured
by property rights and prohibition of stealing and embezzlement.
3.0 MAQASID AL SHARI’AT IN MEDICINE
diin is essentially involves ‘ibaadat
in the wide sense that every human endeavor is a form of ‘ibaadat. Thus medical
treatment makes a direct contribution to ‘ibaadat by protecting and promoting
good health so that the worshipper will have the energy to undertake all the responsibilities of ‘ibaadat. The principal forms of physical ‘ibaadat are
the 4 pillars of Islam: prayer, salat; fasting, siyaam; pilgrimage, hajj, and jihad. A sick or a weak body can perform
none of them properly. Balanced mental health is necessary for understanding ‘aqiidat
and avoiding false ideas that violate ‘aqiidat. Thus medical treatment of
mental disorders thus contributes to ‘ibadat.
OF LIFE, hifdh al nafs
The primary purpose
of medicine is to fulfill the second purpose of the shari’at, the preservation
of life, hifdh al nafs. Medicine cannot prevent or postpone death since such matters
are in the hands of Allah alone. It however tries to maintain as high a quality of life until the appointed time of death
arrives. Medicine contributes to the preservation and continuation of life by making sure that the nutritional functions are
well maintained. Medical knowledge is used in the prevention of disease that impairs human health. Disease treatment and rehabilitation
lead to better quality health.
OF PROGENY, hifdh al nasl
to the fulfillment of this function by making sure that children are cared for well so that they grow into healthy adults
who can bear children. Treatment of infertility ensures successful child bearing. The care for the pregnant woman, perinatal
medicine, and pediatric medicine all ensure that children are born and grow healthy. Intra-partum care, infant and child care
ensure survival of healthy children.
OF THE MIND, hifdh al ‘aql
plays a very important role in protection of the mind. Treatment of physical illnesses removes stress that affects the mental
state. Treatment of neuroses and psychoses restores intellectual and emotional functions. Medical treatment of alcohol and
drug abuse prevents deterioration of the intellect.
OF WEALTH, hifdh al mal
The wealth of any community depends on the productive activities of its healthy citizens. Medicine
contributes to wealth generation by prevention of disease, promotion of health, and treatment of any diseases and their sequelae.
Communities with general poor health are less productive than a healthy vibrant community. The principles of protection of
life and protection of wealth may conflict in cases of terminal illness. Care for the terminally ill consumes a lot of resources
that could have been used to treat other persons with treatable conditions. The question may be posed whether the effort to
protect life is worth the cost. The issue of opportunity cost and equitable resource distribution also arises.
4.0 PRINCIPLES OF THE SHARI’AT
4.1 PURPOSE OF THE PRINCIPLES
The principles of the shari’at, qawa’id al shari’at, are used to clarify the practical application of the maqasid al shari’at.
PRINCIPLE OF INTENTION, qa’idat al qasd
of intention comprises several sub principles. The sub principle that each action is judged by the intention behind it calls
upon the physician to consult his inner conscience and make sure that his actions, seen or not seen, are based on good intentions.
The sub principle that what matters is the intention and not the letter of the law rejects the wrong use of data to justify
wrong or immoral actions. The sub principle that means are judged with the same criteria as the intentions implies that no
useful medical purpose should be achieved by using immoral methods.
THE PRINCIPLE OF CERTAINTY, qaidat al yaqeen
does cannot reach the legal standard of absolute certainty, yaqeen. Treatment decisions
are best on a balance of probabilities. Each diagnosis is treated as a working diagnosis that is changed and refined as new
information emerges. This provides for stability and a situation of quasi-certainty without which practical procedures will
be taken reluctantly and inefficiently. Existing assertions should continue in force until there is compelling evidence to
change them. Established medical procedures and protocols are treated as customs or precedents. What has been accepted as
customary over a long time is not considered harmful unless there is evidence to the contrary. All medical procedures are
considered permissible unless there is evidence to prove their prohibition. Exceptions to this rule are conditions related
to the sexual and reproductive functions. All matters related to the sexual function are presumed forbidden unless there is
evidence to prove permissibility.
PRINCIPLE OF INJURY, qaidat al dharar
is justified on the basic principle is that injury, if it occurs, should be relieved. An injury should not be relieved by
a medical procedure that leads to an injury of the same magnitude as a side effect. In a situation in which the proposed medical
intervention has side effects, we follow the principle that prevention of a harm has priority over pursuit of a benefit of
equal worth. If the benefit has far more importance and worth than the harm, then the pursuit of the benefit has priority.
Physicians sometimes are confronted with medical interventions that are double edged; they have both prohibited and permitted
effects. The guidance of the Law is that the prohibited has priority of recognition over the permitted if the two occur together
and a choice has to be made. If confronted with 2 medical situations both of which are harmful and there is no way but to
choose one of them, the lesser harm is committed. A lesser harm is committed in order to prevent a bigger harm. In the same
way medical interventions that in the public interest have priority over consideration of the individual interest. The individual
may have to sustain a harm in order to protect public interest. In the course of combating communicable diseases, the state
cannot infringe the rights of the public unless there is a public benefit to be achieved. In many situations, the line between
benefit and injury is so fine that salat al istikharat is needed to reach a solution
since no empirical methods can be used.
OF HARDSHIP, qaidat al mashaqqat
that would otherwise be prohibited actions are permitted under the principle of hardship if there is a necessity. Necessity
legalizes the prohibited. In the medical setting a hardship is defined as any condition that will seriously impair physical
and mental health if not relieved promptly. Hardship mitigates easing of the shari’at
rules and obligations. Committing the otherwise prohibited action should not extend beyond the limits needed to preserve the
Purpose of the Law that is the basis for the legalization. Necessity however does not permanently abrogate the patient’s
rights that must be restored or recompensed in due course; necessity only legalizes temporary violation of rights. The temporary
legalization of prohibited medical action ends with the end of the necessity that justified it in the first place. This can
be stated in al alternative way if the obstacle ends, enforcement of the prohibited resumes. It is illegal to get out of a
difficulty by delegating to someone else to undertake a harmful act.
PRINCIPLE OF CUSTOM or PRECEDENT, qaidat al urf
The standard of
medical care is defined by custom. The basic principle is that custom or precedent has legal force. What is considered customary
is what is uniform, widespread, and predominant and not rare. The customary must also be old and not a recent phenomenon to
give chance for a medical consensus to be formed.