Law And Ethics in the Islamic Normative Tradition
The Encyclopedia of Islamic Bioethics, Oxford University Online
by Khaled Abou El Fadl
There is a wide range of jurisprudential and ethical prescriptions, under the broad rubric of Sharīʿah that apply to ever expanding issues raised by the field of bioethics. The Sharīʿah consists of ethical and legal normative duties and obligations binding to each Muslim individually and to Muslims collectively. The Islamic classical legal tradition addressed a set of heightened or more demanding mandates that applies to medical doctors and healers. Among these core ethical and jurisprudential demands is the obligation to do no harm, to preserve life, to remove suffering, and so on. In the modern age these core normative prescriptions are often considered in balance with what jurists consider to be the natural order of things, or creation as God intended. But as bioengineering and similar technologies continue to advance at a very fast rate, Muslim scholars are forced to grapple with ever more challenging questions of law and ethics that are not convincingly addressed through traditional methodologies of deductive reasoning.
Sharīʿah as Islamic Law and Ethics
Sharīʿah is a broad and all-encompassing concept that refers to ethics and law in Islam. In the linguistic practices of theologians, ethicists, and jurists in the Islamic tradition, the broad meaning of Sharīʿah is the way or path to well-being or goodness, the life source for well-being and thriving existence, the fountain or source of nourishment, and the natural and innate ways and order created by God. In the legal context, Sharīʿah is the eternal, immutable, and unchanging law, or the Way of truth and justice as per the Divine Will or as it exists in the mind of God. The subjective human effort to understand and interpret the Divine Will is known as fiqh (literally, understanding or comprehension). According to Muslim jurists, the moral purpose of Sharīʿah is to promote the well-being and welfare of human beings (tahqiq masalih al-ʿibad). God, by definition, is beyond harm or benefit and hence, the very purpose of all laws is to promote the good of human beings. Moreover, human beings are under an individual and collective duty to enjoin the good and resist evil (al-ʿamr biʾl-maʿruf wa al-nahy ʿan al-munkar). This normative obligation is at the core of all ethical and legal duties. In the Islamic legal tradition, it is often asserted that Sharīʿah seeks to protect and promote five fundamental values: (1) life; (2) intellect; (3) reputation or dignity; (4) lineage or family; and (5) property.
Sharīʿah and Bioethics in Modern Usage
Because of the normative framework described above, Muslim scholars were able to negotiate many of the issues raised by modern bioethics from within the parameters of their own tradition. Technological advances that preserved or protected life or alleviated human suffering were usually recognized as consistent with Islamic law and ethics. According to an oral tradition (ḥadīth) attributed to the Prophet Muhammad, God has not created a disease without creating its cure, and therefore, Muslim scholars argued, it is entirely consistent with the purposes of God that human beings apply their intellects to discover the means for preserving and protecting life. Bukhari, for example, spends one chapter on Kitāb al-Tibb (chapter on medicine). The first ḥadīth is precisely on this (see al-Bukhari, n.d., p. 1441, ḥadīth 5678). Various institutions, such as The Islamic Council for Fiqh in Mecca (al-Majmaʿ al-Fiqhi al-Islami) of the Muslim World League, The Islamic Fiqh Council in Jiddah (Majmaʿ al-Fiqh al-Islami) of the Organization of the Islamic Conference, the IslamicOrganization for Medical Sciences in Kuwait (al-Munazzamah al-Islamiyyah liʾl-ʿUlum al-Tibbiyyah), and Dar al-Iftaʾ al-Misriyyah (the Egyptian Department for Issuing Fatwas), have dealt with a wide range of biomedical issues since the 1970s. Typically, these institutions emphasize the purposes of Sharīʿah in sustaining and promoting human life before concluding that the particular medical advancement under consideration is consistent with Islamic law and ethics. Other than the furtherance of life, contemporary Muslim authorities emphasize that under Sharīʿah, whatever serves the public interest (al-maslahah al-ʿammah) should be adopted, and whatever leads to evil should be avoided (darʾ al-mafasid wa sadd al-dharaʾiʿ). Moreover, one of the most often cited concepts is the ethico-legal precept that suffering must be alleviated and harm removed (rafʿ al-haraj wa dafʿ al-darar). Therefore, any medical advancement that minimizes harm to people or lessens their suffering is, in principle, consistent with Islamic law and ethics.
Although contemporary Muslim discourses anchor themselves in normative standards and objectives that are well-founded in the Islamic tradition, the Muslim engagement with the field of bioethics has been driven by Western medical advancements and interests. As a result, contemporary Muslim discourses have been described as reactive and consequentialist. For the most part, what is meant is that contemporary Muslim scholars cite precedents or vague concepts from the Islamic tradition before making beginning- or end-of-life decisions, or determinations affecting quality of life without relying on a systematic ethical theory. In reality, the mechanics of Muslim determinations tend to rely on citing narratives from the Qurʾān and sunnah (the practices and teachings of the Prophet) before deducting a ruling that is often morally ambivalent. So, for instance, when asked by the Egyptian Medical Syndicate in 1988 whether sex reassignment operations are lawful, Shaykh Tantawi (d. 2010), the mufti of Egypt at the time, responded as follows:
"This is an answer to the Syndicate's letter number 483 of May 14, 1988, asking for the opinion of religion on the matter of a student of medicine at the al-Azhar university, who has been subjected to a surgical operation (removing his male organs) in order to turn him into a girl."
We find that ʿUsama ibn Sharik tells: “A bedouin came to the Prophet and said, ‘O, Messenger of God, can you cure?’ And He said, ‘Yes, for God did not send a disease without sending a cure for it, knowing it from His knowledge…’” This [ḥadīth] is told by Ahmad [ibn Ḥanbal]. There is another version: “Some bedouins said, ‘O, Messenger of God, can you cure?’ And He said, ‘Yes. God's servants can cure themselves, for God never gave a disease without providing a cure or a medicine for it, except for one disease.’ They asked, ‘O, Prophet of God, what disease is that?’ He said, ‘old age.’” This version is related by Ibn Maja Abu Da'ud, at-Tirmidhi, and others [Muntaqi l-Akhbar wa Sharhuhu nayl al-Awtar, v. 8, p. 200, and Fath al-Bari bi Sharh Sahih al-Bukhari, by al-ʿAsqalani , v. 9, p. 273, in the chapter on those who imitate women].
As for the condemnation of those who by word and deed resemble women, it must be confined to one who does it deliberately, while one who is like this out of a natural disposition must be ordered to abandon it, even if this can only be achieved step by step. Should he then not comply, but persist [in his manners], the blame shall include him, as well—especially if he displays any pleasure in doing so.
The person who is by nature a hermaphrodite [mukhannath khalqi] is not to be blamed. This is based on [the consideration that] if he is not capable of abandoning the female, swinging his hips in walking and speaking in a feminine way, after having been subjected to treatment against it, [he is at least willing to accept that] it is still possible for him to abandon it, if only gradually. But if he gives up the cure with no good excuse, then he deserves blame. At-Tabari took it as an example that the Prophet (God bless him and grant him salvation) did not forbid the hermaphrodite from entering the women's quarters until he heard him giving a description of the woman in great detail. Then he prohibited it. This proves that no blame is on the hermaphrodite for simply being created that way. That being so, the rulings derived from these and other noble hadiths on treatment grant permission to perform an operation changing a man into a woman, or vice versa, as long as a reliable doctor concludes that there are innate causes in the body itself, indicating a buried [matmura] female nature, or a covered [maghmura] male nature, because the operation will disclose these buried or covered organs, thereby curing a corporal disease which cannot be removed, except by this operation. This is also dealt with in a hadith about cutting a vein, which is related through Jabir: “The Messenger of God sent a physician to Abu ibn Kaʿb. The physician cut a vein and burned it.” This hadith is related by Ahmad [ibn Ḥanbal] and Muslim. What supports this view is what al-Qastallani and al-ʿAsqalani say in their commentaries on it: “This means that it is incumbent upon the hermaphrodite to remove the symptoms of femininity.” And this is further sustained by the author of Fath al-Bari who says “…having given him treatment in order to abandon it…” This is a clear proof that the duty prescribed for the hermaphrodite can take the form of a treatment. The operation is such a treatment, perhaps even the best treatment. This operation cannot be granted at the mere wish to change sex with no clear and convincing corporal motives. In that case it would fall under that noble Hadith which al-Bukhari relates through Anas: “The Messenger of God cursed the hermaphrodites among the men and the over-masculine women, saying ‘expel them from their houses’, whereupon the Prophet himself (God bless him and grant him salvation) expelled one, and ʿUmar expelled another one.” This Hadith is related by Ahmad and al-Bukhari.
To sum up: It is permissible to perform the operation in order to reveal what was hidden of male or female organs. Indeed, it is obligatory to do so on the grounds that it must be considered a treatment, when a trustworthy doctor advises it. It is, however, not permissible to do it at the mere wish to change sex from woman to man, or vice versa. Praise be to He who created, who is mighty and guiding. From what has been said the answer to what was in the question will be known. Praise be to God the most High
The response given in this fatwā (non-binding legal opinion) is sufficiently ambiguous that it continues to be cited by opposite sides of the debate on the controversial topic of sex change operations. According to Ṭanṭāwī, what is clear is that straightforward corrective surgery is permissible and a surgical intervention is justified if it is treatment, but if it is not treatment, then it should not be allowed. But this only begs the question of who ultimately decides whether a surgical intervention constitutes treatment and what criteria are used to define treatment. More critically, the fatwā is morally ambivalent because, for one, it simultaneously indicates that hermaphroditism (al-khuntha) is a condition deserving treatment, but also that hermaphrodites are to be cursed and expelled from homes. Moreover, one is left wondering whether certain values such as the happiness, mercy, fulfillment, or integrity of the person seeking the surgical intervention are relevant to the determination and if not, why not? The mufti only states that surgical interventions should not be undertaken per the whimsies of individuals, but it does not purport to address cases of psychological need or harm.
Some commentators have argued that the moral ambivalence characteristic of much modern Muslim writing toward many bioethical issues is the product of the determinative nature of the Islamic tradition itself. In other words, according to this view, the Islamic interpretive tradition itself strongly restricts the ability of Muslims to negotiate the ethics of biomedical decisions, and by its very terms, dictates particular moral attitudes. However, I think that the moral attitudes of contemporary Muslim interpreters are shaped by sociocultural anxieties about the impact of modernity to a far greater extent than a determinate body that can be called the Islamic tradition. For instance, on the issue of sexual reassignments, the mufti could have conceded a far greater role to the subjectivities and autonomy of the individual. Contrast, for example, the fatwā quoted above to the position of classical Ḥanbalī scholars as to whether a hermaphrodite may marry a man or woman. According to early Ḥanbalī authorities, whether a hermaphrodite marries a man or woman depends entirely on the self-identity and subjective feelings of the individual.
"Al-Khiraqi [d. 334] said that it depends on what he himself says; if he says that he is a man and is naturally sexually attracted to women, then he may marry a woman; if he says that he is a woman and is naturally sexually attracted to men, then she may marry a man, because this is something that we cannot know except on the basis of what the individual says. It is not a claim that affects the rights of another person, so he is to be taken at his word, just as a woman is to be taken at her word with regard to menses and ʿiddah (waiting period). He may find that he is naturally attracted to one gender or the other; the way that Allah has created living beings is that the male is usually attracted to the female and vice versa. This sexual orientation is a matter that is very private and may not be known to others. As it may be difficult for us (in the case of ambiguity) to see any clear external signs, reference should be made to his hidden feelings and what he himself says about them" (Ibn Qudamah, 1968, 7:208).
The fact is that the Ṭanṭāwī’s fatwā is symptomatic of many Muslim discourses that tend to decide challenging questions raised in modernity by proclaiming on the permissibility or impermissibility of certain actions without addressing the pressing ethical issues involved. Declaratory statements about the permissibility or impermissibility of particular biomedical advancements very often do make assumptions as to Islamic authenticity or as to the legitimacy of particular institutions in the classical tradition. It is undeniable that major Muslim institutions make assumptions about the historical and moral character of the Islamic classical tradition without adequately analyzing the ethical implications raised by what are truly novel questions confronting all of humanity. The reality is that there are biomedical issues raised today that are without a pertinent or directly applicable precedent in the classical Islamic tradition. But even when there are relevant precedents found in the classical tradition, it is important to realize that there are fundamental shifts in the epistemological consciousness of human beings, a fact that mandates that many biomedical issues be revisited and rethought on the basis of the ethical parameters of Islam.
The Classical Heritage
Classical Islamic precedents that may be considered directly relevant to biomedical issues are too numerous to deal with here. For example, a great deal of legal precedents treat the issue of coitus interruptus as a means of birth control, which is considered lawful by a clear majority of the classical jurists. Another main issue is that of abortion, especially in the first trimester of the pregnancy. Many Ḥanafī jurists permitted abortions in the first 120 days because of the premodern belief that the soul does not enter the body until that time. The clear majority of Sunnī and Shīʿī jurists prohibited abortion from the moment of conception because of the value of life, which should be protected and invested with legal protection and rights from the moment it is conceived. The only exception recognized by most classical jurists was when an abortion is necessary to save the mother’s life or to avoid serious injury to the mother. Moreover, one finds discussions in the classical tradition on female genital mutilation, which is for the most part rejected as harmful to the body, and discussions on the illegality of castrations in order to create the class of slaves known as the castrata. Although the practice was widespread in creating male slave servants capable of entering and living in the harem without impediment, Muslim jurists often treated the practice as injurious and sinful. These and others constituted a body of jurisprudential practices in the classical age that often responded to actual sociological and cultural demands within their time and age. Whether and to what extent the jurists behind these determinations incorporated or relied on ethical or moral visions varied greatly from one jurist to another and from one place and time period to another. But taken collectively, these determinations do not set out the ethical and moral normative standards in Islam. The function of jurists was to resolve actual conflicts and disputes presented to them and not necessarily to act as moral philosophers or ethicists.
It is quite likely that if one is to locate the ethical laws of medicine in Islamic civilization, they will be found in the actual practice of Muslim physicians who dominated the world of medical progress in the Mediterranean for centuries. By the ninth century the works of Greek physician and philosopher Galen of Pergamon had been translated into Arabic and became the basis for the Galeno-Islamicmedical tradition. Muslim physicians such as Avicenna (Ibn Sīnā) built upon and greatly developed the ideas of Galen, and their works continued to dominate the field of medicine until the seventeenth century and beyond. But what is most striking about the numerous texts generated by classical Muslim scholars throughout the medieval period is the extent to which they paid attention to a holistic approach to treatment. The physician and patient worked together to bring the patient in harmony within himself and with his environment. And it is this harmonious approach that sought to bring the patient into a state of balance and well-being that is a very good indicator and indeed guide to Islamic biomedical ethics.
Islamic Law and Ethics and the Six Principles of Care
A system of morality based on the collective traditions of Islamic law and ethics would have to be based on principles that would uphold the critical values of the Islamic faith and resonate with Islam’s outlook on Divinity and creation. These principles would effectively seek to ensure that the researcher or doctor has done his or her due diligence before God, while upholding the rights of God and people. Especially in the field of bioethics what is mandated is no less than that the researcher or doctor act in a godly manner. Moreover, the patient must be sufficiently informed as to be able to make decisions that discharge his or her responsibilities before God.
A fair reading of Islamic law and ethics would mandate six normative principles, each of which is an obligation that is consistent with and in furtherance of Godliness as opposed to godlessness. These six principles can be summarized as follows: (1) an obligation not to cause harm (la darar wa la dirar); (2) an obligation to strive for a condition of contentment and tranquility in pursuit of happiness (tahqiq mīzān al-saʾādah); (3) an obligation to be fair and just toward all concerned including other patients in need (tahqiq al-ʿadl wa al-qist); (4) an obligation to be merciful and compassionate, and to strive for mercy and compassion toward all concerned (tahqiq al-rahmah wa al-tarahum); (5) an obligation to be beneficent in dealing with patients and all others (iqamat al-iḥṣān); and (6) an obligation to uphold the integrity of one’s self and all others so that each person can take full responsibility before God for all the decisions made and relied upon (tahqiq al-qiwamah ʿala al-nafs wa sidq al-damir) (for a general introduction see Abou El Fadl, 2005 and 2014; and Sachedina, 2009).
“Islam” connotes the dual meanings of submission to God and also the finding of peace in God. To go through the enlightenment of finding peace in God does not necessarily mean the annihilation of the self into God, but it does mean gaining the wisdom to understand the balance between the self, the other, and God. It also necessarily means to exist in harmony with the self, creation, and the Maker. In Sharīʿah discourses, God is recognized as having rights (ḥuqūq Allah), but so do human beings (known as ḥuqūq al-nas or al-ʿibād). Finding peace in God means comprehending the just balance of rights and struggling to preserve this balance by giving each right its due. In struggling to submit to the Almighty, a Muslim struggles for liberation from and against falling captive to godlessness—a condition marked by ignorance, anxiety, alienation, and fears. Godliness is not just a conviction or belief; it is a practice and a state of being. And this state, which is quintessentially interconnected with beauty—with the attributes of divinity such as love, mercy, justice, tranquility, humility, and peace—is in direct antipathy to egoism which in turn is associated with the ailments suffered in a state of godlessness such as hate, cruelty, inequity, arrogance, anxiety, and fear. In the language of the Qurʾān, as well as in the teachings of the Prophetic sunnah, Godliness is not a status or entitlement; it is a state of being in which a person emanates Godliness not just in his or her ethical beliefs and conduct, but in the very spirit and aura that emanates from and enfolds such a person (Hilmi, 1986, pp. 172–173; Abou El Fadl, 2014, p. 368). On the other hand, when human beings embrace their egoism and arrogance and turn away from God’s path and grace, they dwell in the misery brought about by their own weaknesses, insecurities, and imbalances. In classical Islamic theology, the state of being embodying Godliness is known as iḥṣān—a being beautified by divinity and its goodness. The closer human beings come toward the ideal of Godliness or iḥṣān the more they can experience true happiness. The more they drift away from themselves and descend into and settle for godlessness, the more elusive and misguided their quest for happiness will be.
The moral and legal obligation to alleviate or end suffering and hardship helps in understanding the importance of happiness and personal fulfillment in the Islamic outlook. However, the alleviation of suffering and hardship is not the same as the achievement of happiness. Even if the most faithful try their utmost to end hardship, suffering, and misery, this does not amount to the realization of happiness. Although God is self-sufficient, and is described as the Giver, happiness is not realized through simple practice, obedience, or some other formalistic or legalistic dynamic (Qurʾān 22:37; 64:16). An effective beginning to understanding the Islamic outlook is to ponder the Prophet Muhammad’s refrain: “Whoever succeeds in knowing himself will come to know his Lord” (Suyuti, 1997; Ibn ʿArab, n.d.). One of the consistent themes in the very large literary corpus dealing with the issue of saʾādah or happiness is an inextricable link drawn between knowledge and enlightenment and happiness. The more a believer knows about himself, other people and cultures, and the world, the more such a believer will be capable of understanding the balance (mīzān), which is necessary for striving for justice with the self and others (qist). Indeed, the struggle to learn—and to achieve self-knowledge and knowledge of the other—is labeled by the Prophet as the highest and most challenging form of jihad (Renard, 1988). The Qurʾān describes those who succeed in understanding the balance and in achieving enlightenment as existing in a true state of happiness. They are in a state of harmony and peace with themselves, creation, and God. This is a state of blissful tranquility, equilibrium, and ultimately peace.
It is important to emphasize the Islamic outlook toward Godliness, as opposed to godlessness, and its relationship to creation and happiness because this helps in setting the proper context for the six principles. For instance, the obligation to lift suffering and hardship is not limited to the context of doctors treating patients but to the entire field of bioethics. This obligation would apply equally to all living things including creation itself. Therefore, bioengineering that leads to the suffering of animals or livestock in order to make them more productive or financially more lucrative would be very dubious from an Islamic perspective. In Islamic law and ethics, the rights owed to creation or nature implicate the rights of God as well as the rights of people. One cannot indulge in waste or in the needless destruction of nature without infringing upon the rights of God and risking descending into the graceless state of godlessness. When it comes to human beings, the ethical obligation is not fulfilled by simply refraining from inflicting harm or suffering but to an affirmative duty to act to further the well-being and satisfaction and contentment of individuals, when such a duty is owed, or in all cases, of the collectivity of human beings. This does mean that the pursuit of knowledge and the removal of obstacles to learning and awareness, such as the search for cures or means for avoiding disease, is an ethical duty that brings people closer to Godliness. The use of biological knowledge to threaten humanity with destruction or to manufacture weapons of destruction is behavior consistent with a state of ugliness or godlessness.
It is true that Islam, like all systems of faith, can be used to make pain more bearable or to mitigate the harshness of suffering. And indeed, Islamic theology does place a heavy emphasis on patience and perseverance before hardships, and on not giving in to despair or despondency (al-ṣabr ʿala al-nawaʾib wa al-shadaʾid). Resisting hopelessness and enduring through life’s trials and tribulations are moral virtues and a sign of a strong faith. However, patience or forbearance when confronted with trials and tribulations is an ethical obligation upon the person afflicted. Unlike the obligation to lift harm or aid in achieving happiness, it is not an affirmative obligation that implicates the rights of God or human beings. Moreover, in Islamic terms, endurance is necessary to fulfill one’s obligation toward maintaining one’s own integrity and moral well-being, but there remains the further or additional ethical obligations to not harm oneself and to pursue a higher state of vitality and enlightenment or happiness.
The obligation to maintain one’s own integrity as a human being is essential to each person’s individual autonomy as an agent who is fully responsible and accountable. In Islamic theology, responsibility and accountability before God is individual as each person is held responsible for their own moral agency, with no human being or institution having the power of absolution or intercession. Each person is expected to reflect, ponder, learn, and act and then face the consequences of their conduct before God. This means that one is free to make the right or wrong choice, including the right not to believe or to choose the path of godlessness instead of Godliness. Compulsion, duress, and obfuscation to perpetuate a state of ignorance are all considered objectionable and repulsive because they compromise the autonomy of the moral agent. The import of individual moral agency is quite profound because it includes a duty to stay well informed so as to be able to make the most ethically upright decisions about one’s own care. But it also means that there is an affirmative duty to disclose all relevant information that would enable a person to make a decision consistent with her or his own integrity. Moreover, according to Islamic ethics and law, any act that compromises the integrity of the mind and its ability to realize its potential as a moral agent would be unethical. The intellect is sacrosanct because it is the very basis for the Divine covenant between God and human beings. It cannot be diluted or weakened by alcohol, drugs, or other intoxicants, and it can never be forgotten that an individual is ultimately responsible for his or her decisions. This, however, carries a corollary ethical duty upon caregivers to fully disclose all relevant information so that patients can make a fully informed decision about their own care. Integrity of moral agency also means that whether one wants to donate his or her organs to help others, in most cases, should be a personal decision left to the individual’s conscience before God. In fact, in cases of real need, there might be an ethical obligation derived from the duties of mercy and beneficence toward others to donate blood or organs.
The duty of mercy or compassion (raḥmah) and beneficence (iḥṣān) is so central and firmly established in Islamic theology and law that they hardly need to be justified or explained. It is worth noting that in contemporary Islam, the full normative implications of these two ethical duties are not sufficiently explored or vetted. According to the Qurʾān and sunnah, mercy is the cornerstone of true justice and balance in life. The Qurʾān asserts that the Prophet Muhammad, and in fact the Qurʾān itself, was sent but as a mercy for humankind (7:52; 17:82; 21:107). The Qurʾān also persistently emphasizes the ethical quality of mercy as a core attribute of God and as a fundamental and basic pursuit of Islam (12:111). The Qurʾān informs human beings that God has decreed and mandated mercy even upon Himself, and therefore, is bound to extend it to human beings. In the Qurʾānic discourse, mercy and peace are inextricably linked—peace is a Divine mercy, and mercy is the bliss of peace. To comprehend and internalize God’s mercy is to be in a blissful state of peace. This is at the very essence of the state of Divine beautification and of being filled with the goodness of the Divine, and having this quality manifest outwardly in everything a person does is known as iḥṣān. Taʿaruf (knowing the other) and taʾaluf (amicability between people) is a great gift of Divine mercy that leads to the grace of enjoying peace. But knowledge of the other is not possible without the grace of iḥṣān, which calls upon people to approach one another, not just with mercy and sympathy, but with empathy and compassion. The two ethical duties of mercy or compassion and beneficence mandate that the suffering of others not be approached with arms-length detachment, and that healing the suffering of others not be approached as a form of granting charity. Raḥmah and iḥṣānare quintessential attributes of Godliness—and the very antithesis of godlessness—such that the basic moral obligation of justice is contingent upon their fulfillment. This is why in Islamic law and ethics, mercy or compassion and beneficence are personal moral duties upon each individual, and also collective duties upon society in its entirety. A society in which people suffer treatable illnesses without aid or recourse, or where animals suffer because of genetic interference, or even because of neglect and lack of care, cannot be just societies. Because of the theological emphasis on these ethical values, in the classical period, Muslims established the first charitable trusts (pl. awqāf; sing. waqf) in world history dedicated to the care of animals (Abou El Fadl, 2014, p. 96, and 2006, p. 329; Foltz, 2006, pp. 1–6; Stilt, 20016). Unfortunately, these ethical values and their role in establishing a just society have lost much of their authoritativeness in modern Muslim societies.
The principle of justice always mandates that a decision maker look beyond the confines of his or her personal preferences and interests to weigh in the interests and rights of others as well as the rights of God. Islamic law and ethics resolutely determine what the demands of justice mandate when it comes to unequivocal matters involving the preservation of life, such as abortions that are not medically necessary for the life or health of the mother, or suicide. However, other than clear-cut questions of death and life, justice requires that all rights, whether of human beings or God, be weighed and balanced with care and deliberation. On most issues, after weighing the balance of rights, a person will have to decide in accordance with his or her conscience. Nevertheless, there is an important point of caution. The Qurʾān instructs Muslims to discuss and deliberate as a means of confronting and solving problems (known as the obligation of shūrā or consultation) (3:159; 42:38). For these deliberations to be genuine and meaningful, a measure of humility and self-awareness is imperative. Justice itself mandates that those directly affected by a biomedical decision be included in the consultative process for this process to be meaningful and considerate. After the completion of the consultative process, who gets to make the final decision and whether such a person is bound to follow the consensus or majority opinion depends on many factors. For example, the decision to terminate life support to a patient who is clinically brain dead is too serious a matter to be left in the hands of a single person, such as a spouse. The mandates of mercy, compassion, and beneficence, leave alone justice, would seem to counsel that a decision like the termination of life support should be a consensus-building process where no loved one is left to feel betrayed or let down by others.
Whether one is dealing with beginning- or end-of-life questions, or alternatively, issues of health and suffering, Islamic law and ethics will not yield non-negotiative and determinative results on all matters. When it comes to the preservation of life, the Sharīʿah provides clear lines of demarcation mandating that human life be rescued, preserved, and honored, except in very specific and narrow circumstances. Nevertheless, modern medicine has raised numerous issues that go well beyond the question of the preservation of life—questions that were never anticipated or addressed by the classical forefathers of Islamic law and ethics. On these kinds of issues, it is erroneous to pretend that the solutions can be obtained deductively from the Qurʾān and sunnah and that every problem has a clear-cut ethical resolution. For the rather wide range of difficult cases that modern sciences pose to Muslim scholars, it is important to realize that Islamic law and ethics do not create determinative and unchanging responses. On these kinds of issues Islamic law and ethics set the proper boundaries and parameters in which a negotiated solution is to take place. By definition, negotiated solutions will mean differences of opinion and a plurality of judgments. As long as practitioners deliberate upon the duties not to cause or perpetuate harm, to pursue happiness, to seek justice, to deal in mercy, achieve beneficence, and honor the integrity of human beings, then at the very minimum, they have discharged their obligations toward God and acted in a Godly manner. According to the Qurʾān, what matters in the eyes of the Lord is the sincerity of the effort and not necessarily the results.
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