compares ethical theories and ethical principles of the Islamic and the European traditions. Islam has one unifying theory
of ethics represented by the theory of Purposes of the Law, maqasid al shari’at.
There is no comparable single European theory. Several theories derived from different resources are used and they do not
lead to consistent results in specific cases. The Islamic ethical principles are based on the Principles of the Law, maqasid al shari’at. The 4 European ethical principles (autonomy, beneficence, nonmalefacence, and justice)
can all be derived from only one of the 5 Islamic medical ethical principles which is the principle of injury, qa’idat al dharar. The other 4 principles are: intention, qasd; certainty, yaqiin; hardship, mashaqqat; and precedent, ‘aadat. We can therefore conclude that
Islamic perspective in ethics is wider than the European one.
TO LAW and ETHICS
between law and ethics: Islam vs European
Medicine and law are closely intertwined because medicine has a big impact on human behavior.
Human behavior also has an impact on health and medical care. Law basically deals with regulating human behavior. The two
disciplines therefore have inevitably to meet. New medical technologies are giving rise to many new legal problems not considered
ethics can be considered one and the same thing or can be viewed as separate. In Islamic Law ethics is included within the
Law. This is because Islamic Law is comprehensive and is a combination of moral and positive laws. Strictly speaking we should
not talk about ethics when we use Islamic law because ethical issues are encompassed within the law.
European law is in essence a denial of moral considerations in law because morality is associated with ‘religion’.
Law and ethics therefore can be viewed as separate disciplines in the European tradition. In the European secular perspective
the law has only positive laws and has to exclude ethics that are based on moral considerations that are essentially religious
in nature. This is however an oversimplification of a complex matter because in practice European secular law cannot avoid
moral issues completely. Application of the secularized law in medicine showed its deficiencies because issues arose whose
solution required moral considerations and could not be handled by the secular positive laws. This inevitably led to the birth
of the field of medical ethics. Actual practice in the past 30 years has seen integration of medical ethics into the secular
laws as legislation is enacted on ethico-moral issues such as euthanasia, cloning, test-tube babies etc.
National legislatures have enacted many laws addressing ethical concerns. Health-related
legislation has grown tremendously. It now covers the following: medical malpractice, termination of treatment, privacy, abortion,
and transplantation. It also covers Public health issues such as drug addiction, alcohol addiction, tobacco, and the environment
Medical association and professional bodies have also introduced their own ethical codes. The
international codes were: The Declaration of Geneva, The International Code of Medical Ethics, The Declaration of Tokyo, The
Declaration of Oslo, and The Declaration of Helsinki.
legal process: Islam vs European
major difference between the European and Islamic Legal processes is that the former is adversarial with the assumption that
truth and justice will be established when the two litigants each tries to defend their positions before a judge. The Islamic
legal process is focused more on solving problems and reaching reconciliation and consensus.
1.3 Medical jurisprudence: Islamic vs European
The concept of medical jurisprudence, fiqh tibbi,
has a wider application in the Islamic tradition that the European one. This generally reflects the fact that Islamic Law
is wider than European law. Islamic Law covers personal hygiene, acts of physical worship, civil transactions, financial transactions,
and judicial transactions. Islamic medical jurisprudence will therefore deal with all aspects of these branches of the law
that interface with medicine. Medical jurisprudence (also called medical law or legal medicine) in the European tradition
excludes generally private matters of the individual’s hygiene and acts of worship.
In both the Islamic and the European traditions, legal medicine can be defined as use of
medicine for requirements of justice. It is also called forensic pathology, legal medicine, or medical jurisprudence. Legal
medicine is a type of applied law in the area of medicine.
1.4 Medical Ethics: as Historical Background
have been part of medicine from the beginning. Some statements in the Hippocratic oath deal with professional medical ethics.
Ibn Sina wrote about ethics.
with ethics in the past was not as intensive as it is at the moment. It was assumed that physicians would be ethical and moral
in their work and this was true to a large extent because religiosity was a leading characteristic of life in the past.
the last quarter of the 20th century ethical considerations became a major concern for two reasons. The first reason
is that developments in medical technology gave rise to problems such as life-support, in-vitro fertilization and others that
had moral dimensions. The second reason was the increase in moral violations by medical practitioners. The medical profession
found itself in a dilemma because moral values were not part of the secular medical curriculum.
gradually encroached civil life starting with the European renaissance. By the 20th century, all aspects of European
life including medicine had become secularized. The practical manifestation of this secularization was the marginalization
of religious and moral values and confining them to the private arena of individual belief and practice.
problems that required moral solutions arose, the medical profession and society at large were not ready to face the challenges.
The positive secular laws that existed were deficient in resolving moral problems. It became necessary to develop secular
medical ethics as a new discipline to deal with the challenges. This explains why ethics as a separate discipline is new in
did not face a similar dilemma because they kept their divine Law, shari’at,
intact. Islamic Law, unlike European secular law, is based on a complete system of morality and can therefore handle all moral
problems that arise in medicine from a legal perspective. It also is very flexible being adaptable to many new and novel situations.
Strictly speaking Muslims do not need to talk of ethics as a separate discipline because it is already included in their Law.
2.0 MEDICAL ETHICS: A EUROPEAN PERSPECTIVE
is defined as various ways of understanding and examining the moral life. The approach to a moral problem in medicine is determined
by the background culture, philosophy of life and worldview.
are three European approaches to ethical analysis: normative, practical, and non-normative ethics. The normative is what ought
to be done. Practical ethics is what most people do. It seeks to find practical solutions to actual problems without necessarily
indulging in theoretical considerations. Non-normative ethics tries to establish factually what the actual situation is. Non-normative
ethics is a description of what is going on.
view of morality is very different from that of Islam. Europeans have a problem dealing consistently with moral issues after
removing religion from public life over the past 4 centuries of secularism. Morality to them is communal consensus about what
is right and what is wrong (Beauchamp & Childress 1994). Since community opinions and practices change with time, morality
and moral values change. This contracts with the Islamic tradition in which some moral values are absolute and unchangeable
with changes of time and place. Islamic Law however also recognizes that some practices can change to adjust to changing circumstances
of time and place.
are many examples of ethical values based on community consensus. Codes of professional conduct are a consensus reached within
each profession. Government policies and guidelines also convey moral consensus reached within the political process. Court
rulings and precedents also lay down moral values. Ethical guidelines can be developed while reasoning through ethical dilemmas
(a situation in which there is good evidence for two opposing points of view). Ethical guidelines can also be developed while
dealing with practical dilemmas for example when personal interest is in conflict with professional obligations or moral principles.
theory provides a framework within which moral reasoning and judgment can be undertaken. Moral judgment is basically reaching
a consensus about what is right or wrong.
is no one coherent European theory of ethics because of the historical background. Judeo-Christian concepts were Europeanized
when the Roman Empire opted for Christianity and the system of moral values developed in Europe became a compromise between the pre-Christian
Greco-roman religion on one hand and the Judeo-Christian religion on the other hand. The reformation and renaissance witnessed
the marginalization of the Christian church and a partial return to Greco-roman ideas and practices. Materialism and empiricism
developed with industrialization creating a complex mosaic of moral and philosophical concepts in Europe.
In these circumstances it became difficult to define one coherent ethical theory. There are at least 6 ethical theories that
can be recognized in the European tradition.
to the utilitarian consequence-based theory, an act is judged as good or bad according to the balance of its good and
bad consequences. Utilitarianism means attaining the greatest positive with the least negative. This theory has a problem
in that it can permit acts that are clearly immoral on the basis of utility.
theory is based on Kantian philosophy. Immanuel Kant (1724-1804 N) argued that morality was based on pure reasoning. He
rejected tradition, intuition, conscience, or emotions as sources of moral judgment. A morally valid reason justifies action.
Acts are based on moral obligations. The problem with the Kantian theory is that it has no solution for conflicting obligations
because it considers moral rules as absolute.
The rights-based theory is based on respect for human
rights of property, life, liberty, and expression. The individual is considered to have a private area in which he is master
of his own destiny. Rights may be absolute or relative. A positive right is one that has to be provided to the individual.
A negative right is one that assures prevention of or protection from harm. There is a complex inter-relation between rights
and obligations. Individual rights may conflict with communal rights. The problem of the rights-based theory is that emphasis
on individual rights creates an adversarial atmosphere.
to the community-based theory, ethical judgments are controlled by community values that include considerations of
the common good, social goals, and tradition. This theory repudiates the rights-based theory that is based on individualism.
The problem with this theory is that it is difficult to reach a consensus on what constitutes a community value in today’s
complex and diverse society.
theory gives emphasis to family relations and the special physician-patient relation. For example a moral judgment may
be based on the consideration that nothing should be done to disrupt the normal functioning of the family unit. The problem
of this theory is that it is difficult to deal with and analyze emotional and psychological factors that are involved in relationships.
theory is practical decision-making on each case as it arises. It does have fixed philosophical prior assumptions.
ethical theory must be clear, coherent, complete, comprehensive, simple, practicable, and able to explain and justify. None
of these 6 theories has all these characteristics. None of the above-mentioned theories can on its own explain all ethical
or moral dilemmas. In practice more than one theory may have to be combined to solve a specific ethical issue. On the other
hand the theory of the purposes of the Law, maqasid al shari’at, is the sole
integrated theory of Islamic medical ethics. It enables robust and consistent ethical reasoning.
2.5 European ethical principles
principles are axioms that simplify ethical reasoning. They have to be specific. In practice one principle may have to be
balanced against another one. In some cases one principle may override another
consider the Hippocratic oath as the starting point of ethical reasoning. This is supplemented by views of European philosophers
and thinkers to develop ethical theories that are in turn used to solve practical problems. European ethical guidelines do
not have explicit purposes such as are enunciated in the Islamic theory of purposes of the Law, maqasid al shari’at.
This is because there is no coherent theory of law or theory of ethics in the European tradition.
are 4 basic European ethical principles according to Beauchamp and Childress (1994). The Principle of Autonomy is the power
of the patient to decide on medical procedures. The Principle of Non-malefacence is avoiding causation of harm. The Principle
of Beneficence is the providing benefits and balancing them against risks and costs. The principle of justice is distribution
of benefits, costs, and risks fairly.
ethical principles are basically the 5 principles of the Law: the principle of intention, qa’idat
al qasd; the principle of certainty, qa’idat al yaqeen; the principle
of injury, qa’idat al dharar; the principle of hardship, qa’idat al mashaqqat; and the principle of custom, qa’idat
al ‘aadat. It can be shown that all the 4 European ethical principles can be subsumed under one Islamic principle,
the principle of injury.
and ethics in Islam are absolute and are of divine origin. Human consensus not deriving from divine legislation cannot be
a source of binding ethical guidelines. All what humans do it to apply the legal and moral teachings of Islam to practical
law and practice are very deficient when dealing with ethical issues. The law does not always and consistently follow morality.
In Islam the Law is the expression and practical manifestation of morality. European law does not have to permit all morally
acceptable practices neither does it automatically ban all immoral activities. This contrasts sharply with Islam that automatically
bans all immoral actions as haram and automatically permits all what is moral or
is not specifically defined as haram.
stability and change
values are constant but practical applications may vary with varying circumstances. The basic moral and legal principles are
broad enough to encompass the needs of all times and places. The detailed applications change with the growth of science and
technology. The Islamic approach to ethics is a mixture of the fixed absolute and the variable. There are fixed principles
that set the parameters beyond which it is absolutely immoral to operate. Within these parameters, consensus can be reached
on specific moral issues. The consensus may be in the form of a custom, ‘aadat,
which in Islamic Law has legal force. Islam holds that ethics cannot be divorced from morality. Ethics can also not be divorced
from Law. Islamic Law is a compendium of ethics, morality, and legal rules. The purposes of the law and its principles are
therefore the basis of ethics. Islam holds that the human mind, unless corrupted by shaitan,
is capable to working out rationally what is right and what is wrong for most problems of life. There are however a few gray
areas for which moral reasoning needs to be guided by wahy to reach correct conclusions.
are two basic models of moral justification: deduction and induction. Deduction is a top-down approach popular among Hanafi
jurists in which a general principle is applied to to specific cases. Induction is a bottom-up approach in which each case
is considered on its own merits. Induction relies a lot on analogy, qiyaas, Inductive
processes involving many cases can lead to a generalization that is considered an ethical theory.
AND MEDICAL ETHICS
considers medical ethics the same as ethics in other areas of life. There is no special code for physicians. What we call
medical ethics is restating general ethical principles using medical terminology and with medical applications. The medical
ethical codes can be derived from the basic law but the detailed applications require further intellectual effort, ijtihad,
by physicians. Discussion of ethics brings into focus conflicts between rights and obligations. Rights may be positive or negative. Rights are correlated to obligations. Rights of one person may conflict with those
of another one thus creating a moral dilemma. A human is free to enjoy his or her rights to the maximum as long as
that enjoyment causes no harm to some one else, la yajuuz li sahib haqq al yasta’amila haqqahu fima yadhurru ghayrahu.
as it may sound, some ethical problems are solved by avoiding them. This is part of the Islamic teaching of avoiding doubtful
thinks and being modest or restrained. The prophet taught us to leave what causes us doubts to what does not cause such doubt,
da’ ma yuribuuka ila ma la yuriibuka. Restraint, hayaa, is part of iman, al hayaa min al iman. Haya is the morality of Islam, khulq al Islam al hayaa. Hayaa is always good, al hayaa khayr kulluhu. Hayaa is a decoration, al hayaa ziinat.
F. MAQASID AL SHARI’AT, THE ISLAMIC ETHICAL THEORY
theory of Islam is found in the 5 purposes of the Law, maqasid al shari’at. The five purposes are preservation
of ddiin, life, progeny, intellect, and wealth. Any medical action must fulfill one of the above purposes if it is to be considered
G. ISLAMIC ETHICAL PRINCIPLES
basic ethical principles of Islam relevant to medical practice are derived from the 5 principles of the Law are: intention,
qasd; certainty, yaqeen; harm, dharar