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ISLAMIC MEDICAL EDUCATION RESOURCES01

9706-CURRENT MEDICAL SERVICES: ISLAMIC PERSPECTIVE

Paper presented at the Seminar on Islamic Medicine: Concept and Operation held at the Institute of Islamic Understanding (IKIM) Kuala Lumpur 17-18 June 1997 by Prof Dr Omar Hasan Kasule, Sr. MB ChB, MPH, DrPH (Harvard) Deputy Dean for Research and Post-graduate Affairs, Kulliyah of Medicine, International Islamic University PO Box 70 Jln Sultan PJ 46700 Telephone 60 3 755 3433 fax 60 3 757 7970

Abstract

This paper starts by defining the Islamic concepts of medicine, disease, and cure of diseases. It then raises and discusses five issues related to modern medical services: (a) The purpose of medicine  is to maintain or improve the quality of life and not to prevent or postpone death (b) integration deriving from the the tauhidi  paradigm, implies practice of medicine as a total holistic approach to the human in the social, psychological, material, & spiritual dimensions and not exclusively dealing with particular diseases or organs (c) the human service dimension in the medical profession is within the context of Islamic mutual social support, takaful ijtimae. This calls for assuring accessibility to and affordability of quality health care for all people irrespective of income or place of residence (d) The Islamic approach to preventing or resolving medico-legal and medico-ethical issues arising out of modern bio-technology should use the general purposes of the law (maqasid al shariat) and the the general principles of the law (qawaid fiqhiyyat kulliyat).

 

1.0 DEFINITION OF ISLAMIC MEDICINE

Islam is a universal belief system. It therefore does not have one particular or unique system of medical treatment peculiar to it. It has values and concepts that guide medical treatment. These can be applied to several medical systems that exist and those that will be discovered in the future. Islamic Medicine does not fit the classification of ‘alternative medicine’ like homeopathy, acupuncture, or ayurdevic medical systems.

 

There is a semantic confusion between the adjectives 'Islamic' and 'Muslim'. 'Islamic'  refers to values, ideas, guiding principles, and application of the Qur'an and sunnat. 'Muslim' refers to people who self-identify as Muslims as well as their activities and institutions even though they may not follow all the teaching of Islam. Thus Islamic medicine, the ideal, is not the same as Medicine of Muslim societies, which is the actual historical or contemporary experience of Muslim societies.

 

Islamic Medicine is defined as Medicine whose basic paradigms, concepts, values, and procedures conform to or to do not contradict the Qur'an and Sunnat. It is not  specific medical procedures or therapeutic agents used at a particular place or a particular time. Islamic medicine is universal, all - embracing, flexible, and allows for growth and development of various methods of investigating and treating diseases within the frame-work described above.

 

2.0 NATURE OF DISEASE

Muslims do not look at disease always in a negative way. The following traditions indicate that there could be something positive in ill-health.

 

Narrated ‘Abdullah bin Masud: I visited Allah’s Apostle (PBUH) while he was suffering from a high fever. I touched him with my hand and said, “O Allah’s Apostle! You have a high fever.” Allah’s Apostles (PBUH) said, “Yes I have as much fever as two men have.”  I said, “Is it because you will get a double reward?”. Allah’s   Apostle (PBUH) said,  “Yes,  no  Muslim  is  afflicted  with  harm  because of  sickness  or  some  other  inconvenience,  but  that  Allah   will  remove   his  sins as  a  tree  sheds  its   leaves.”.

 

Narrated  Aisha (PBUH),  the  Wife  of  the  Prophet (PBUH) :  Allah’s   Apostle (PBUH)  said,   “No  calamity  befalls  a  Muslim  but  that  Allah  expiates  some  of  his  sins  because   of  it,  even  though  it  were  the  prick  he  receives  from  a  thorn.”

 

Narrated  Abu  Sa’id   Al-Khuduri  and  Huraira:   The  Prophet (PBUH)  said,  “No  fatigue,   nor  disease,   nor  sorrow,  nor  sadness,  nor  hurt,  nor  distress  befalls  a  Muslim,  even  if  it  were  the  prick  he  receives   from   a  thorn,    but  that  Allah  expiates   some  of  his  sins  for  that.

 

A Muslim is expected to be patient in illness and hope for cure and never give up hope or wish for death as indicated in the following tradition:

 

Narrated Anas bin Malik (ASW):  The Prophet (PBUH) said: “ None of you should wish for death because of the calamity of befalling him; but if he has to wish for death, he should say : “O Allah keep me alive as long as life is better for me and let me die if death is better for  me”.

 

3.0 CURE OF DISEASE

Muslims believe that ultimately cure of disease is from Allah. The physician makes attempts that could succeed or fail.

Narrated Aisha (A.S) Whenever Allah’s Apostle (P.B.U.H) paid a visit to a patient or a patient was brought to him, he used to invoke Allah saying, “Take a way the disease, O the Lord of the people! cure him as you are the one who cures. There is no cure but yours, a cure that leaves no disease.”

 

A Muslim has strong hope in the cure of his disease. All diseases are potentially curable with the grace of Allah. The cure may be known by some people and not by others. It may be known at a certain epoch and not another one. There must be a cure and if not known, the physicians are encouraged to search for it.

 

Narrated Abu-Huraira (A.S.W.) The Prophet ( PBUH) Said, “ There is no disease that Allah has created, except that He also has created its treatment.”

 

A Muslim believes that death is pre-ordained and that its time, ajal, is in the hands of Allah and no human can postpone or prevent it. The purpose of medicine is to improve or maintain the remaining quality of life until the pre-ordained moment of death.

 

Narrated Abu-Huraira (ASW) I heard Allah’s Apostle (PBUH) saying, “There is healing in black cumin for all disease except death.”

 

The Prophet Muhammad (PBUH) in his medical teachings emphasised the concept of preventive medicine as shown in the following traditions:

 

Narrated Sa’d: The Prophet (PBUH) said , “ If You hear of an outbreak of plague in a land, do not enter it, but if the plague breaks out in a place while you are in it, do not leave that place.”

 

Narrated Abu-Huraira (ASW) Allah’s Apostle (PBUH) said: The cattle suffering from disease should not be mixed up with healthy cattle.

 

Muslims believe that besides physical therapies in the form of medicinal products and surgery, disease can be cured by prayer as the following traditions show.

 

Narrated Aisa (R.A) : During the prophet’s (PBUH) fatal illness, he used to recite the Mu’auwidhatain (surat al-nas and surat al-falaq) and then blow his breath over his body. When his illness was aggravated, I used to recite those two surats and blow my breath over him and make him rub his body with his own hand for its blessings.”

 

Narrated Abu Saied Al-Khudri (ASW) Some of the companion of the prophet (PBUH) came across a tribe amongst the tribes of the Arabs, and that tribe did not entertain them. While they were in that state, the chief of that tribe was bitten by a snake ( or stung by a scorpion ). They said, (to the companions of the Prophet (PBUH), “Have you got any medicine with you or any body who can treat with ruqya?” The Prophet’s companions said, “ You refused to entertain us, so we will not treat (your chief ) unless you pay us for it.” so they agreed to pay them with a flock of sheep. One of them ( the prophet’s companions) started reciting surat al Fatiha and gathering his saliva  and spitting it (at the snake-bite). The patient got cured and his people presented the sheep to them, but they said” We will not take it unless we ask the prophet (PBUH) (whether it is lawful).” When they asked him , he smiled and said, “How do you know that surat al -Fatiha is a ruqya? Take it (flock of sheep) and assign a share for me.

 

Narrated Al-Aswad: I asked Aisha about treating poisonous stings ( a snake-bite or scorpion sting) with a Ruqya.  She said, The Prophet (PBUH) allowed the treatment of poisonous with ruqya.”

 

Narrated Abdul -Aziz: Thabit and I Went to Anas bin Malik Thabit said, “O Abu Hamza! Iam sick “ On that Anas said “ shall I treat you with ruqya of Allah’s Apostle(PBUH) ? Thabit said,  “yes” Anas recited  “O Allah! The lord of the people, the remover of the trouble! ( please ) cure (heal) (this patient), for you are the healer. None brings about healing but you; a healing that will leave behind no ailment.”

 

Narrated Aisha (RA) : The prophet (PBUH)  used to treat some of his wives by passing his right hand over the place of ailment and used to say,  “O Allah , the Lord  of the people! Remove the trouble and heal the patient, for You are the Healer. No healing is of any avail but yours; healing that will leave behind no ailment.

 

Narrated Aisha. (RA) Allah’s Apostle (PBUH) used to treat with ruqya saying, “ O the Lord of the people ! Remove the trouble. The cure is in Your Hands, and there is none except. You who can remove it (the disease).

 

 

4.0 PURPOSE OF MEDICINE

Muslims have several disagreements with some basic paradigms that define the objectives of European medicine. From the Muslim’s point of view, European medicine suffers from the following deficiencies: (a) it is disease-oriented and not health-oriented (b) it is very arrogant and claiming ability to cure any disease with no recognition of Allah’s involvement (c) It does not have sufficient humility to accept its many failures (d) it sets itself the unrealistic goal of preventing or postponing death regardless of the quality of life that is lived.

 

Since health is the original state and illness is the exception, medicine must be health and not disease oriented. The main responsibility of the physician is to  maintain health; cure of disease should be the exception rather than the rule. The ancient Chinese were nearer to our view of medicine and the role of the physician. They paid their physician as long as they were in good health. Payments would be suspended on falling sick. They would resume when the illness was cured.

 

The disease model predominates in European medicine. The disease model involving a biological or physical insult to the tissues is the main causal mechanism recognised and other contributors to the final causal pathway are not emphasised. The bias to the disease model explains European medicine being more curative than preventive.

 

Illness to a Muslim has its positive aspects and can be a blessing and a reason for expiation of sins. The trial of illness is a source of much good for a believer. An incident case of illness should not be looked at in isolation. When viewed in a larger context, illness or disease need not always be seen as bad. The Qur’an teaches that a human may like something that is bad for him or may hate something that is good for him. Falling ill may save a person from going where he would be hurt or where he could commit a sin. Pathophysiologically the symptoms of ill-health are useful even if people complain about them. Pain directs us to tissue injury so that corrective measures may be taken before the injury becomes more extensive. Exhaustion and collapsing may be the body’s way of forcing us to take a rest when we are over-stressed or overworked without adequate rest. Much of what manifests as disease are the body’s attempts to return to the natural or normal state.

 

The ultimate cure of illness is from Allah. The attending physician must realise that his efforts will succeed only if divine will intervenes and should therefore not be to arrogant. He should be aware that his efforts may fail or succeed. Physician arrogance and overuse of biomedical and technological interventions has sometimes led to the excesses of modern medicine in the form of side-effects (short and long-term) or iatrogenic diseases that are on the increase today.

 

Claims of European medicine to have reduced morbidity and mortality can be questioned. Mortality due to infectious diseases like tuberculosis and malaria fell dramatically in developed countries. Some infectious diseases like smallpox have been completely eradicated. However new types of morbidity have appeared. Sexually-transmitted diseases are on the increase. There is a lot of chronic fatigue and stress in industrialised society. Psychiatric morbidity (including depression, suicide, para-suicide, and substance abuse) is on the increase. Foetal wastage has actually increase with the rise in legal and illegal abortions and some forms of contraception..

 

European medicine has had a marginal contribution to the falling mortality and morbidity over the past 2 centuries. Non-medical general improvements in nutrition, environmental sanitation, and personal hygiene have been responsible for the major changes. Mortality from diseases like tuberculosis was falling many decades before discovery of effective anti-infective agents. The prevalence of debilitating infectious diseases in the third world is more related to their low socio-economic development than to lack of scientific medicine.

 

European medicine has reached or will soon reach a plateau in improving physical health at least in developed countries where infectious diseases that have plagued mankind for millenia are nearly being controlled. Any further improvements in health will not require biomedical interventions but changes in human behaviour (nutrition, exercise, stress, psychological balance, substance abuse, violence). The most effective interventions will be non-medical. Changes of human behaviour require will-power to choose and stick to healthy lifestyles while avoiding unhealthy ones as well as self-care. The medical profession may have to change its whole orientation to support and enhance the will and ability of the people to take care of maintaining their health and lead healthy life-styles. The medical profession will have to know when to stop biomedical intervention and give room to non-medical interventions. Good results will be obtained only when an equilibrium is established between the two.

 

It is a paradox that medicine will remain busy in the next few decades trying to reverse iatrogenic problems it has caused this decade. Medical exposures to irradiation and steroids 20-30 years ago are responsible for cancers of today. Tonsillectomy, once a popular procedure, is now thought to be involved in the cause of Hodgkin’s disease. Oral contraceptives cause coagulation disorders. Other similar examples abound in medicine. Health problems due to environmental pollution will increase in the following decades. It is our contention that an Islamic paradigm emphasising an integrated and balanced approach would have foreseen and prevented some of these problems.

 

From an Islamic point of view, the aim of medicine is to maintain or improve the quality of remaining life. Medicine does not have as an aim the prevention of death or prolongation of life; the ajal is in the hands of the Almighty. Life on earth has a fixed and limited span and no one has the power to extend it even for a brief moment.

 

Importance of quality of life is recognised by some physicians trained in the European tradition but lacking an integrating tauhidi paradigm, they fail to define this quality in a wholistic way. Fliender and Biefang felt that reduction of mortality was not the real need of society and not the only goal to be set in training physicians. Islam can provide them with paradigms that enable them to pull everything together.

 

The Islamic Quality of Life Index (IQLI) arises from the tauhidi integrative paradigm and is a comprehensive measure involving social, psychological, physical, spiritual, and environmental parameters. The quality of life is closely related to man’s understanding of the purpose of creation and the mission of humans on earth. Life becomes degraded, hayatan dhankan, in the absence of this understanding. The quality of life is also closely related to lifestyle. A good healthy lifestyle is associated with a higher quality of life. A bad unhealthy lifestyle is associated with a low quality of life. Lifestyle is directly related to the risk of physical and mental illness as well as the response or adjustment to that illness. Epidemiological studies if interpreted in an objective way provide sufficient data to relate ill-health to lifestyle and to quality of life.

 

A healthy lifestyle is characterised by: piety, generosity, charity, chastity, humility, trust, balance, moderation, patience, endurance, honour and dignity, integrity, moral courage, and wisdom.

 

An unhealthy lifestyle is mainly a manifestation of one of the following diseases of the heart: shirk, kufr, takabbur, ujb, hiqd, hasad, ghadhab, ghurur, hypocrisy, miserliness, and suu al dhann. These diseases sooner or later lead to either physical or psychological transgression, dhulm,  against self or others. Most human diseases can be traced to this transgression.

 

4.0 INTEGRATION & BALANCE

European medicine is characterised by narrow specialisation and fragmentation. Physicians know more and more about less and less. Speciality practice however has the great disadvantage of fragmenting patient care among several specialists such that there is no one doctor to care for the whole patient. 

 

Fragmentation is a reflection of an underlying European world-view and did not come about by accident. This world-view started with the renaissance when religion was separated from public life and science. This set in motion centripetal forces that continually separate, fragment and subdivide. The body was separated from the soul. The mind was separated from the body. Science was separated from art in medical practice. Each disease or organ was isolated and was dealt with in isolation. It is not surprising that in a context of increasing fragmentation , the concepts of ‘total health’, ‘total disease’ are not easily accepted. It is not the ‘total human’ who gets sick but his organs or tissues.

 

Many physicians in the west have recognised that fragmentation is a major problem and have set about attempting to achieve integration in medical treatment. Their limited success is due to lack of a guiding vision. Integration is not just putting two or more disciplines together. It is a fundamental philosophical attitude based on a vision and a guiding paradigm. Only Islam can provide this paradigm.

 

Criticism of the fragmented medical care is actually criticism of the underlying European non-tauhid world-view. The fundamental reason for failure of integration efforts is that the European world-view is atomistic, it is good at analysis and not synthesis. It is incapable of synthesis because it lacks an integrating paradigm like tauhid.

 

Lack of equilibrium is a secondary manifestation of lack of integration. A lot of human illness is due to lack of balance and equilibrium; for example excessive intake of some foods leads to disease just as inadequate intake leads to ill-health. The Qur’an calls for observing the equilibrium, al wasatiyyat. Lack of balance is condemned as taraf and israaf. Violating the rule of the golden middle is associated with many problems.

 

Ancient Muslim, Indian, Chinese, Greek medical systems understood the concept of equilibrium. Modern European medicine lacks the concept of equilibrium or balance. It  is replete with examples of overdoing a good thing beyond the equilibrium point and creating even bigger problems.

 

Some therapies are worse than the disease they are supposed to cure. The quality of life of terminal cancer patients is made worse by chemotherapy and radiotherapy than the original disease perhaps they could have been left to die in dignity. Pesticides were used to eradicate some parasites but they led to human disease. The best treatments of yesterday are known causes of malignancies today.

 

Tauhidi is the main paradigm in Islamic civilisation that forms a backbone of all intellectual discussion of medical education. Tauhid al rububiyyat motivates the appreciation that there is only one creator and that there is unity, harmony and useful interconnections among different forms of life and the physical environment. Tauhid al uluhiyyat motivates the appreciation that the creator has definite purposes from creation and that human life must fulfil those purposes which implies that there are certain laws that lead to a fulfilling life. Obeying those laws is associated with a healthy high-quality life-style.

 

The tauhidi paradigm implies integration and harmony of matter and soul, body and mind, parts and the whole. The physician should be trained to practise medicine as a total holistic approach to the human in the social, psychological, material, & spiritual dimensions and not an attack on particular diseases or organs.

 

The example of the early Muslim physicians is worth emulating. They were well-rounded in their education and their practice of medicine. They were also integrated in the sense that their medical practice fitted in well with other social activities. Al Qadhi Abd al Razaaq used to teach medicine and mathematics in the mosque in Bukhara until his death. Muwaffaq al Ddiin Abd al Latiif al Baghdadi taught medicine in the Azhar mosque during his stay in Egypt. Thus the context and the environment in which the teaching was carried out was integrative. It integrated medicine with the mosque and worship.

 

Al Faruqi described tauhid as the source of truth, cosmic and social order. It ensures unity of truth and therefore prevents contradictions between different disciplines of knowledge. Tauhid is a world-wide view that can guide not only medical education but also all endeavours of building a civilization. The Islamic social order is totalistic and Islam is relevant to every aspect of human endeavour.

 

The tauhidi approach to integration is putting medical knowledge, teaching and practice in a larger context to making sure it is in harmony  and is well coordinated with other related medical or non-medical phenomena. It is therefore possible to envision a very ‘integrated’  doctor who at the same time is very specialized. Such a doctor will approach the patient as a whole human  and not just as organs or tissues.

 

5.0 SERVICE

A Malaysian medical educator did, as far back as 1965, pose a question that is very pertinent even today: ‘Should medicine repair damaged health or try to change the social environmental circumstances that led to ill-health?’. The challenge is still before medical educators. Changing the social circumstances requires working on the front-line in rural or poor  urban areas.

 

The Islamic paradigm of service requires that the physician should be trained to understand medicine as a social service. The human dimension should dominate over the biomedical one. The selection of medical students, their training, and evaluation should emphasize human service and not material gain for the physician

 

The medical school can not be expected to effectively teach the spirit of serving others. The values and attitudes of self-less service for others are taught by the family and the community and are already well set by the time the student enters medical school. The school can only build on and enhance basic values that students bring with them from their homes and communities. In such circumstances, the medical school will do well to select those students who already have the vocation to serve.

 

A medical education or health care delivery system developed within an Islamic society will have no alternative but to be service-oriented. This is because of the emphasis on mutual social support, takaful ijtimae

 

Material deprivation causes social and psychological stress in addition to the physical impact of inadequate nutrition, housing and sanitation. Socially conscious physicians must be involved in programs to eradicate poverty and assure a reasonable standard of living. Muslim authors have written numerous books on practical  methods of poverty eradication.

 

The Qur’an calls upon society to look after the weak and less privileged: the widows, the poor, the wayfarer. A Muslim must love for others what he loves for himself. The concept of sadaqat includes all good things. Doing good is encouraged.

 

The distinction between a faqir and a maskin is very significant. The former is poor and is known to be poor so that aid can be extended. The latter is not known and he does not actively seek help. The social services must have the ability to seek out those in need even if they do not come to them seeking aid.

 

Islam is a very practical religion. It has a culture of action and many of its teachings are action-oriented. Islam does not only enjoin followers to serve others but has practical measures to ensure this occurs. Zakat is an obligatory payment to the poor and the needy. The obligatory fasting of Ramadhan is training and inspiration for the rich to remember the poor because they voluntarily taste hunger and fully understand the plight of the deprived. Many breaches of the law are expiated by kaffarat, normally feeding the poor.

 

6.0 MEDICO-ETHICAL AND MEDICO-LEGAL ISSUES

There is an increasing interest among Muslim physicians and fuqaha in legal and ethical issues that arise due to recent advances in medical technology. The physician is expected to give leadership to patients on ethical issues that arise out of modern biotechnology. Examples are: forced tube-feeding of the elderly, forced treatment, patient’s wish for death, birth control, artificial insemination, organ transplantation. He must be prepared not as a mufti who gives legal rulings but as a professional who understands the medical, legal, and ethical issue involved and can explain them to the patients and their families so that they can form an informed decision. In order to play this role well, the future physician must have sufficient grounding in Islamic law and other Islamic sciences

 

Muslim physicians, contemporary and ancient, did not write a lot about professional ethics in medicine because they assumed that a Muslim society is ethical and is a protection against ethical transgressions. However recent experiences in Europe and America have shown that there is so much unethical conduct and that special corrective measures are needed. Unfortunately medical curricula do not prepare the future physician to be a leader in ethics. They give information about ethics but can not make him an ethical person. Ethics can not be taught as an academic discipline. They have to be internalised so that they may inspire and guide.

 

Islam is a complete system. Its law gives guidelines to deal with medico-legal and medico-ethical issues. In most cases there is no text (nass) to refer to because the issues discussed are new. The best approach is to use the general purposes of the law (maqasid al shariat) and the general principles of the law (qawaid al fiqh). These were derived from the text of the Qur’an and sunnat but can be generalised to many situations that were not known in the past including the medico-legal issues that arise because of bio-technological advances.

 

The field of the purposes of the law witnessed little development after the 5th century AH until revived by Imaam Abu Ishaq al Shatibi in the 8th century AH. He was an original and very incisive thinker. He drew attention to the importance of an over-all instead of a partial approach. He argued that the aim of ijtihad was to discover the purpose of the lawgiver in order to reach a legal ruling (hukm shar’i). The law was revealed to fulfil specific underlying purposes that will ensure success (falah) in this world and the hereafter. The law was specifically promulgated for the interests or benefit (masaalih) of the people.

 

There are five Purposes of the Law, maqasid al sharia, arranged here in order of importance: (a) religion,diin  (b) life, nafs (c) the mind, aql (d) progeny, nasl and (e) property, maal. Maintenance of religion includes, inter alia, faith (iman), the 2 testaments (shahadatain), prayer (salat), fasting (siyaam), pilgrimage (hajj). Maintenance of life includes eating, drinking, etc. Maintenance of the mind includes avoiding doing or consuming what affects the intellect like alcohol. Maintenance of progency includes the regulations about marriage, family life, and child upbringing. The regulations about property, trade, and inheritance are for the preservation of property rights. The 5 purposes are permanent and are unchangeable (kulliyat abadiyat).

 

al Shatibi discussed various situations that guide the use of the 5 Purposes above. On earth, unlike heaven, there is no absolute benefit (maslahat) or harm (mafsadat),  the purpose of the law is therefore to choose the best equilibrium. It is not always true that benefits are permitted (halal) and harms are prohibited (haram). The law alone defines what is a benefit and what is a harm; human intellect and desires are unreliable in this exercise. Exceptions,  branches, or parts (juz’iyaat) that do not fit logically should not detract us from the wholistic (kulliyat) understanding the purposes of the law for example tayammum does not fit the description of cleaniliness that is the overall purpose of taharat but does not invalidate the purpose of taharat. Imaam al Shatibi however emphasised that the parts (juz’iyaat) must be preserved if the whole (kulliyaat) are to be maintained.

 

Five principles of the law are recognised by most scholars: Motive (qasd), certainty (yaqeen), injury (dharar), hardship (mashaqqat) and custom (aadat) .Each of the 5 Principles is a group of legal rulings or axioms that share a common derivation by analogy (qiyaas). The Principle of  Motive, qasad states that each action is judged by the intention behind it (al umuur bi maqasidiha). The Principle of  Certainty, yaqeen states that a certainty  can not be voided, changed or modified by an uncertainty (al yaqeen la yazuulu bi al shakk). The Principle of Injury, dharar states that an individual should not harm others or be harmed by others (la dharara wa la dhirar). The Principle of  Hardship , mashaqqa states that hardship mitigates easing of the sharia rules and obligations (al mashaqqa tajlibu al tayseer). The Principle of  custom, aadat states that what is customary is a legal ruling (al aadat muhkkamat).  Unless contradicted specifically by text (nass), custom or precedence is considered a source of law.

 

The following is a summary of how the general purposes of the law (maqasid al shariat) and principles of the law (qawaid al fiqh) can be employed in organ transplantation.

 

Under the PURPOSE OF MAINTAINING LIFE (hifdh al nafs) There should be no injury to the health and human dignity of both the donor and the recipient. The associated side-effects, complications, and abuses for both the recipient and the donor are treated under 2 Principles of Law: hardship (mashaqqa) and injury (dharar). Under the PRINCIPLE OF HARDSHIP: necessity and hardship legalise what would otherwise be objectionable or risky (al dharuurat tubiihu al mahdhuuraat), lowering donor risk has precedence over benefit to the recipient (dariu al mafasid muqaddamu ala jalbi al masaalih), the complications and side-effects to the recipient must be a lesser harm than the original disease (ikhtiyaar ahwan al sharrain). Under the PRINCIPLE OF INJURY: transplantation relieves an injury to the body (al dharar yuzaal) in as far as is possible (bi qadr al imkaan) but its complications and side-effects should be of lesser degree than the original injury (al dharar la yuzaal bi mithlihi). Abuse of transplantation by abducting or assassinating people for their organs could lead to complete prohibition under the principles of dominance of public over individual interest (al maslahat al aamat muqaddamat ala al maslahat al khhasat),  prevention of harm has priority over getting a benefit (dar’u al mafaasid awla min jalbi al masaalih), and pre-empting evil (dariu al mafasid).

 

The principles of custom and certainty are invoked in the definition of death and thus the earliest time for organ harvesting. Under the PRINCIPLE OF CUSTOM (al aadat),  brain-death does not fulfill the criteria of being a widespread, uniform, and predominant customary definition of death which is considered a valid custom (al aadat muhakkamat). The successes of biotechnology in transplantation and other fields introduces a strong doubt (shakk) in the irreversibility of brain-death. Under the PRINCIPLE OF CERTAINTY (yaqeen), existing customary definition of death should continue in force until there is compelling evidence otherwise (al asl baqau ma kaana ala ma kaana).

 

Selling organs could open the door to criminal commercial exploitation and may be forbidden under the purpose of maintaining life, the principle of preventing injury, the principle of closing the door to evil (sadd al dharia), and the principle of motive.  Protecting innocent people from criminal exploitation is a public interest that has priority over the health interests of the organ recipient. The PRINCIPLE OF MOTIVE (qasd) will have to be invoked to forbid transplantation altogether if it is abused and is commercialized for individual benefit because the purpose will no longer be noble but selfish. Matters are to be judged by the underlying motive and not the outward appearances (al umru bi maqasidiha)

Professor Omar Hasan Kasule June 1996