The paper 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.

1.0 INTRODUCTION TO LAW and ETHICS

1.1 Relation 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 before.

Law and 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.

Secularized 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.

1.2 The legal process: Islam vs European

A 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

Ethics have been part of medicine from the beginning. Some statements in the Hippocratic oath deal with professional medical ethics. Ibn Sina wrote about ethics.

Concern 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.

Towards the last quarter of the 20^th 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.

Secularism gradually encroached civil life starting with the European renaissance. By the 20^th 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.

When medical 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 medical practice

Muslims 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

2.1 Definition of ethics

Ethics 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.

2.2 European ethical analysis

There 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.

2.3 European morality

The European 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.

There 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.

2.4 European ethical theory

An ethical 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.

There 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.

According 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.

The obligation-based 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.

According 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.

The relation-based 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.

The case-based theory is practical decision-making on each case as it arises. It does have fixed philosophical prior assumptions.

A good 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

Ethical 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

Europeans 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.

There 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.

The Islamic 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.

3.0 ISLAMIC ETHICS

3.1 Divine source

Morality 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 situations.

3.2 Law and morality

European 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.

3.3 Ethics: stability and change

Ethical 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.

There 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.

D. GENERAL AND MEDICAL ETHICS

Islam 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.

E. AVOIDING ETHICAL ISSUES

Strange 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[1]. Restraint, hayaa, is part of iman, al hayaa min al iman[2]. Haya is the morality of Islam, khulq al Islam al hayaa[3]. Hayaa is always good, al hayaa khayr kulluhu[4]. Hayaa is a decoration, al hayaa ziinat[5].

F. MAQASID AL SHARI’AT, THE ISLAMIC ETHICAL THEORY

The ethical 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 ethical.

G. ISLAMIC ETHICAL PRINCIPLES

The 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