ISLAMIC BIOETHICS:
Analysis of "Nonmaleficence" and "Beneficence" Principle in the Islamic Context
Oleh: Mohammad Syifa Amin Widigdo
ABSTRAK
Peranan Perspektif Islam pada bidang etika biomedis sangatlah sedikit. Namun demikian untuk mendiskusikannya ada 2 arus utama dalam Islam yang bisa memberikan kontribusi pengembangan bioetika, yakni teologi dan fiqh. Tulisan ini menjelaskan bahwa ada beberapa kesamaan umum antara prinsip-prinsip etika biomedis modern dan penalaran moral Islam hukum dan prinsip-prinsipnya. Keduanya memiliki keprihatinan mendalam dengan tiga isu-isu etis dalam bioetika; prinsip tidak menimbulkan kerugian, serta berbagai prinsip-prinsip moral lainnya. Tentu saja ada beberapa perbedaan pandangan. Mengenai perspektifnya, terutama didasarkan kepada falsafahnya. Namun perbedaan itu tidak mencegah kemungkinan pembicaraan lebih lanjut antara kedua tradisi. Di sisi satu sisi bioetika modern dapat memiliki perspektif kemungkinan mempromosikan dengan baik di luar pandangan dunia individualistis, dengan mengacu pada konsep maslahah. Di sisi lain, tradisi hukum-moral Islam mulai dari qiyas, istihsan, istislah, la darar, dan maslahah, bisa belajar dari bioetika sekuler cara menangani isu-isu kontemporer etika biomedi secara lebih canggih.
Kata Kunci: Etika Biomedis, Islam, Fiqh, kemaslahatan ummat.
Preface
A contribution of Islamic perspectives in the realm of bioethics is limited. This is mainly rendered by the dearth of serious engagement of contemporary scholars of Islam in this field. Although some scholars of Islam have already dealt with the issues of medical ethics for centuries,[1] they usually discussed them in the umbrella of Islamic law, which is in fact remote from contemporary bioethical discourses. The Islamic world therefore has limited access to modern bioethical debates. Moreover, Muslim physicians who are well trained in bioethical disciplines lack knowledge in Islamic studies. In turn, they are unable to introduce a kind of Islamic moral reasoning in the realm of bioethics.
However, there are Muslim physicians and a few scholars of Islam who attempt to engage in contemporary biomedical discourse. Among them are Fazlur Rahman, Vardit Rispler-Chaim, and Farhat Moazam. Fazlur Rahman elaborates the historical and philosophical aspects of Islamic medical tradition in his work, Health and Medicine in the Islamic Tradition (1987). Meanwhile, Vardit Rispler-Chaim analyses a wide range of Islamic scholars' legal rulings on medical-controversial topics in his book, Islamic Medical Ethics in the Twentieth Century (1993). Unfortunately, none of them is well informed or trained in the bioethical discipline; therefore, the dialogue between their works and Western bioethical discourses is absent.
Farhat Moazam, a Muslim scholar-physician and well trained in Western bioethics, actually has a good chance to initiate a mutual dialogue between Islamic scholarship and modern bioethics. Nevertheless, her work Bioethics and Organ Transplantation in a Muslim Society (2006) does not elaborate a delicate Islamic moral reasoning which actually corresponds with the principles of modern bioethics. As a result, the Western medical ethical tradition is still foreign to Islamic biomedical ethics while Islamic moral reasoning is also unknown in the realm of modern Western bioethics.
Moral Reasoning
Before examining a compatibility of Islamic moral reasoning with its Western counterpart, it is necessary to elucidate briefly a general picture of moral reasoning in Islamic tradition. There are two major religious sciences (`ulum naqliyya) that contribute to the development of the ethical discussion; theology (kalam) and jurisprudence (fiqh). These religious sciences discuss ethical issues mainly on the basis of religious texts, Qur'an and Hadith (the Prophetic tradition). As for rational sciences (`ulum al-`aqliyya) such as philosophy and Sufism which develop ethical theories as well, they are deemed less Islamic because of their extraneous influences and connections with Greek, Indian, or Persian thoughts.[2] Therefore, the term "Islamic" here is used to refer to a kind of moral reasoning which is based on the Qur'an and the Sunnah (or Hadith). In this regard, theology and jurisprudence are deemed more Islamic than other rational sciences.
Islamic theologians (mutakallimun) divide value of human actions into five categories: (a). obligatory (wajib), (b) prohibited (mahzur), (c) recommended (mandub), (d) reprehensible (makruh), and (e) permissible (mubah). Obligatory means God has commanded as a matter of necessity in such a way that its omission is a sin deserving of punishment and its commission is praiseworthy deserving of reward. Prohibition means God has prohibited in such a way that its perpetration will be punished. Recommended denotes an intermediate moral value; whoever performs it will be rewarded, but whoever omits it will not be punished. Meanwhile, the reprehensible is the action which its omission is rewarded whereas its perpetration is left unpunished. Finally, the permissible is not an object of reward and punishment at all.[3] However, Muslims disagree about whether reason or sacred text determines the values of human actions. The rationalist camps of Islamic theology maintain that reason is a kind of revelation which enables a person to differentiate the good from the bad. In fact, the sacred text can only be understood by means of reason. Many Muslims are apt to believe that reason is able to determine value of responsible agents. The traditionalist camps conversely perceive that reason is inferior in front of the sacred text (revelation). They reject the idea that reason is a sort of revelation. The only source which can determine whether human actions are praiseworthy or blameworthy is the revelation, the sacred text.
In the case of matters in which revelation (sacred text) is silent, such as controversial issues in bioethics, both camps may have different opinions. The first camp would say that human reason could assess whether organ transplantation or genetic modification is allowed or not, whereas the second camp would seek more literal arguments from the revelation to judge ethical status of those practices. Nevertheless, none of them develop certain logical principles regarding how the status of human actions can be assessed. In other words, the rationalists do not suggest adequate ethical measures by which we know good and bad in an objective way. Similarly, the traditionalists do not provide a reliable method of interpretation by which revelation can be used for assessing human acts. They are too much using jadal (back forth debate)[4] and analogy (qiyas)[5] as common theologians' means in order to reach certain conclusions. The jadal and the qiyas of Islamic theologians in fact do not render ethical principles by which human practical conducts can derived.
Unlike Islamic theologians who concern themselves with speculative reasoning and theological debates, Islamic jurists (fuqaha') deal with matters related to human daily practices. In some aspects, they share with those theologians, especially in using qiyas as judicial reasoning by analogy[6] and assessing value of human practices based on those five categories; obligatory, prohibited, recommended, reprehended, and permitted. The jurists in fact move further to the discussion of practical morality by issuing legal-religious recommendations (tawsiya) and rulings (fatwa). Interestingly, these religious recommendations and rulings are not produced merely by referring to the Qur'an and the Prophetic Tradition (Hadith), but also through applying certain sophisticated legal-moral reasoning and principles. Especially in the case when a judgment from the Qur'an and the Tradition is metaphorical, ambiguous, or even absent, Islamic jurists employ legal-moral logical methods to determine whether certain cases are considered obligatory, prohibited, recommended, reprehended, or permitted. Among the most popular juristic moral reasoning are: qiyas (judicial analogy), istihsan (legal preference in the aims of promoting common good), and istislah (legal discretion based on public interest).
In Islamic law, qiyas is a sort of deductive reasoning which is centered on the principle of analogy. In the case of the matters in which the judicial judgment of text (revelation) is absent, Islamic jurists seek an analogous case, a precedent, in which revelation has a clear verdict. The analogy in the realm of Islamic law, according to Nabil Shehaby (1982), has two forms. First, the analogy that is based on ma`na (reason) shared by two cases. God or Prophet may prohibit or allow something for a ma`na, a reason. If we find the same ma`na in another case that is not treated in the legal sources, the judicial judgment covering the first can be extended and applied to the second.[7] For example, there is no explicit legal judgment made by revelation regarding using marijuana. The text only says that khamr (a kind of wine) is prohibited because it renders intoxication. In other words, the reason (ma`na) for the prohibition is intoxication. The legal judgment of the khamr can be applied and extended to marijuana based on the ma`na (reason) that both have a similar effect, i.e. intoxication. Thus, if drinking a wine is prohibited, consuming marijuana is also forbidden because both of them cause intoxication. Second is the analogy that is based on resemblances (asbah). This is employed when the case that is not treated in the authoritative legal sources resembles other cases that are treated by either the Qur'an or the Hadith. In this situation, the case under examination acquires the judicial judgment of the case that is the most similar to it.[8]
Another kind of legal-moral reasoning is istihsan. This reasoning is actually a kind of qiyas, but in broader sense. This reasoning allows formulating a decision that sidesteps a precedent judgment established by qiyas in order to meet "the objectives of the Revelation", which are primarily to protect people's integrity and belongings while making their lives easier.[9] It is plausible due to the fact that this methodology is actually founded upon an important principle derived from the directive of "circumventing hardship" stated in the Qur'an: "God intends facility for you, and He does not want to put you in hardship" (2: 185). This directive is also further reinforced by the tradition (Hadith) that states: "The best of your law is that which brings ease to the people."[10] Practically speaking, when scriptural sources say nothing about a particular issue, istihsan takes into account the social and human context without denying the necessary relation to the scriptural text. Customary practices (al-`urf), avoiding hardship, and necessity (darurah), and even public interest (maslahah) are in turn regarded as sources of legal judgment besides the necessary adherence to the teachings of the established religious texts.[11] Islamic jurists can choose one of those legal considerations based on their preference in issuing certain religious rulings. In a sense this method is much more inductive compared to qiyas by virtue of considering human customs and habits among sources of the Islamic law.
The other widely used judicial-moral reasoning is istislah. Literally, it means seeking a common good or public interest (maslahah). Compared the above legal reasoning, istislah is much more linked with the context rather than the text. Therefore, when the text does not provide an explicit legal opinion on certain cases, the main consideration for issuing religious legal opinions is "what is the good for the public". However, what are the things that are called as "the good for the public"? In Mustasfa min Ilm al-Usul, Imam al-Ghazali (d. 1111) writes:
"In essential significance, al-maslahah is a term that seeking something useful (manfa`ah) or warding off something harmful (madarrah). But this is not what we mean, because seeking what is useful and preventing harm are objectives sought by creation, and the good in the creation of mankind consists in achieving those objectives (maqasid). What we mean by maslahah is preserving the objective of the divine law (shar') that consists in five order things: preserving religion (din), life (nafs), reason (`aql), progeny (nasl), and property (amwal). What ensures the preservation of those five principles is maslahah (translated as: common good, public interest); what goes against their preservation is mafsadah (harm), and preventing it is maslahah".[12]
In other words, what is considered "public interest" or "the good for the people" (maslahah) here is the preservation of the objectives of the divine law (maqasid as-shari`a) which are: preserving religion (din), life (nafs), reason (`aql), progeny (nasl), and property (amwal). The other Islamic scholars[13], however, add the necessary protection of human dignity (`ird) into those objectives of shari`ah. These objectives are in fact extracted by Islamic jurists through process of reflective discretion on all sayings stated by the Lawgiver and the dynamics of human experiences in certain socio-cultural contexts. For Islamic legal scholars, the intent of the Lawgiver in commands and prohibitions is clear, that is: "to promote good and to benefit human beings and to protect them from evil, from harm, and from subsequent suffering".[14]
In sum, there are three widely legal-moral logics which are harnessed by Islamic jurists before they come up with certain moral principles and religious legal rulings (fatwa): analogy (qiyas), legal preference (istihsan), and promoting common good or public interests (istislah). In this regard, it is true that the result of these legal-moral logics is usually expressed under the five categories; whether obligatory, prohibited, recommended, reprehended, or permitted. However, in addition to the legal rulings, Islamic jurists also formulate and derive moral principles from those legal-moral logics. These moral principles in fact operate as guidance for Islamic jurists in issuing religious legal recommendations and opinions. Among those principles that result from qiyas reasoning one finds: (a) "one needs certainty" and (b) "action depends upon intention". Others stem from Istihsan: (c) "necessity makes lawful that which is prohibited, as long as it does not lead to any detriment", (d) "hardship necessitates relief", and (e) "custom determines course of action". The rest of the principles are derived from Istislah method, they are: (f) where it is inevitable, the lesser of the two harms should be done", (g) no harm shall be inflicted or reciprocated", (h) "No harm, no harassment", (i) "harm must be rejected", (j) "preventing or removing harm has priority over promoting good".
Based on the above principles, Islamic jurists are expected to respond to the situations that arise in medical practices or other cases in which the scriptural source is silent. The following discussion indeed will assess and to some extent compare the compatibility of those Islamic legal moral principles with modern bioethical principles. This comparison is fair because Islamic bioethics actually is "an extension of Shari`a"[15] (Islamic law) which render certain moral and legal principles. My purpose here is not merely to search for Islamic equivalents of Western bioethical principles because those principles have their own context; Western-American values of individualism, empirical science, and mainly principle-based ethics. Instead, beyond what has done by Abdul Aziz Sachedina (2006) [16], I want to make a strong case for analogous principles within Muslim culture that is operative within the Muslim social-cultural context in assessing moral problems in Islamic biomedical ethics. In this regard, among the four modern bioethical principles[17], I will use the principle of "non-maleficenece" and "beneficence" and exclude "the respect for autonomy" and "justice" for the purpose of comparison. By so doing, the comparison is expected to render a mutual dialogue between the two traditions. One tradition is supposedly not imposing its ideals to another and vise versa, so a mutual respect between the two traditions can prevail.
Non-Maleficence ="La Darar"?
"Above all, do no harm (Primim non nocere)."[18] It is a maxim that inherited from Hippocratic medical tradition which is associated with the principle of nonmaleficence. "Not inflicting harm" in fact is the core ethics shared by Western and Islamic medical culture regardless some distinctive aspects in each of them. In modern medical tradition, Beauchamp and Childress call the idea of obligation "not inflicting evil or harm" as principle of nonmaleficence.[19] It seems that nonmaleficence in modern medical tradition becomes the important principle compared to others since it can override others based on prima facie rules.[20] In Islamic context, although Islamic physicians in medieval period were already familiar with Hippocratic Oath and works,[21] the idea of "do no harm" in Islamic bioethics is much more inspired by Islamic jurists rather than their counterparts, especially philosophers or physicians. Islamic legal scholars base the principle of "do no harm" on Prophetic tradition which states, "La Darar Wa Laa Dirar fil Islam (In Islam, there shall be no harm inflicted nor reciprocated)."[22] Based on this saying, they set Islamic biomedical ethics on the principle called "No Harm, No Harassment."[23] For a practical reason, however, I use the term "La Darar" to refer to the idea of such "no harm shall be inflicted or reciprocated"[24] and its derivative principles. In other words, what is called non-maleficence in Western medical tradition is La Darar in Islamic context.
The principle of La Darar in Islamic bioethics is very important, just like its Western counterpart. According to Abdul Aziz Sachedina, in almost 90 percent of cases confronting health care providers in the Muslim world, the issue of inflicting or reciprocating harm is at the heart of the ethical deliberations.[25] In comparison to the principle of promoting common good or public interest, obligation of avoiding harm has a higher priority. There is an Islamic moral principle says: "Removing harm has priority over promoting good (Dar' al-mafasid muqaddam `ala jalbi al-masalih)". This principle indeed resembles the tenet of secular bioethics which also states "obligations of non-maleficence are more stringent than obligations of beneficence, even if the best utilitarian outcome would be obtained by acting beneficently."[26]
However, what does "harm" mean to the Islamic legal scholars? The majority of Islamic jurists might argue that God is the one who can determine something harmful. Nevertheless, if revelation or the Prophetic tradition does not provide a clear evidence of the parameters of harm in certain cases, the jurists come up with various opinions. The result of the ruling depends on the arguments that Islamic legal scholars use. When the jurists employ qiyas reasoning, they will try to find a similar case which is already treated by revelation or the Prophetic tradition. For example, causing harm to a human body is prohibited based on the Prophetic tradition that says, "Breaking the bone of the dead is equal to breaking a bone of a living person".[27] According to qiyas (analogy) argument, the legal judgment of inflicting harm to the body can be applied to the question of organ donation. If the former is forbidden, so the latter is proscribed as well. The ruling based on a mere qiyas, however, can be complemented, or even ruled out by other kind of arguments which use a broader perspective.
If perspective of istihsan is used, the definition of "inflicting harm" will also consider what is called al-`urf (custom or situation). For the proponents of istihsan, the custom is considered a reliable source in determining the parameters of harm. Custom also establishes whether harm to oneself or to another party has been done in a given situation. If custom regards as harmful something for which revelation offers no specific evidence against, the harm in that context is determined "by the situation." [28] In this regard, the definition of harm might vary depend on particular circumstances and contexts. For instance, in the case of organ donation, Islamic scholars seem to agree that "inflicting harm to the body" (taking an organ from the donor) is permissible under certain circumstances in order to avoid the greater harm (i.e. death of the recipient). They cite the principle which states" "where it is inevitable, the lesser of the two harms should be done" or "necessity makes lawful that which is prohibited, as long as it does not lead to any detriment". However, if the act of organ donation is highly suspected to cause death to the donor, then such act is forbidden (haram). In this light, the definition of "harm" is defined not only by the physician, the family, and other involved parties, but also by the availability of a safe and reliable medical technology.
Another possibility to define harm is through istislah moral reasoning. By means of istislah, "harm" is perceived as a failure to protect the primary objectives of religion: preserving religion (din), life (nafs), reason (`aql), progeny (nasl), and property (amwal), and some add "human dignity" (`ird). Al-Ghazaly (d. 1111) points out that the ability to preserve those primary objectives renders maslahah (common good, benefit) whereas inability to protect them is considered as mafsadah (a source of harm).[29] Thus, whoever violates to someone's religion, life, intellect, progeny, property, or honor is regarded as inflicting harm. In fact, according to Muslim thinkers, the necessity to safeguard these essentials of religion is felt across traditions among the followers of other religions too.[30] Again, in the case of organ transplantation, letting someone die because of not receiving a kidney donation from the donor is deemed inflicting harm, and hence forbidden (mahzur). The moral status of seeking a kidney donation for the one who is in need therefore is not only permissible (mubah), but also obligatory (wajib).
The definition of "inflicting harm" based on the qiyas, istihsan, and istislah methodological reasoning actually signifies not only the necessity of not rendering harm to physical body and psychological state, but also to spiritual well-being. On the one hand, one is supposed to make a good relationship with fellow human beings by protecting what is viewed as the essentials of human needs. On the other hand, he/she should also preserve the God-human relationship through complying with the messages of revelation and the Prophetic tradition.
Although an obligation not to inflict harm intentionally has been closely associated in Muslim social ethics with the obligation to promote common good (maslahah), I disagree with Abdul Aziz Sachedina and those who conceive that the principle of nonmaleficence and beneficence in Islamic context can be summarized in one principle, istislah (promoting good, maslahah).[31] It is due to the fact that "inflicting harm" is a shared principle whether someone uses qiyas, istihsan, or istislah moral reasoning. Qiyas perceives harm or evil as violating against the teachings of revelation and the Prophetic tradition, whereas istishsan conceives it as rendering hardship and disregarding wisdom of human custom, while istislah views it as a failure of fulfilling the human essential needs or the objective of the divine law (Shari`ah). Promoting common good, in fact, is not only related to prevent harm or evil in all forms mentioned above, but mainly related to fulfilling human essentials (al-daruriyyat), complementary (al-hajiyyat), and embellishments (al-tahsiniyyat).
Beneficence = "Maslahah"?
Besides preventing the occurrence of harm, another consideration of moral decision making is the attainment of certain benefit. In modern medical tradition, this notion is represented in the principle of beneficence. According to Beauchamp and Childress, the term "beneficence" connotes acts of mercy, kindness, and charity and includes the notion of altruism, love, and humanity as well. In a specific context of modern bioethical discourse, the principle of beneficence is defined as "a statement of moral obligation to act for the benefit of others".[32] The action is in fact usually performed by an individual to give benefit to another individual based on either a spirit of altruism or a moral obligation. The act of beneficence which is spirited by altruism or an extreme generosity is regarded an ideal or general beneficence, whereas the one which is motivated by mere moral obligation is called obligatory of specific beneficence. The prevalent practice of the principle of beneficence however is the beneficence which is tied by certain moral obligation because the ideal one is viewed as "too high standard".[33] Besides positive beneficence which requires agents to provide benefits to others, there is also aspect of utility in the principle of beneficence. The utility one requires that agents balance the benefits, risks, and costs to produce the best overall results.[34]
The analogous principle which exists in Islamic context is the concept of maslahah. Literally, maslahah means "benefit" or "interest". It is also synonymous with istislah because the two terms have a same language root, namely salaha, promoting good. Terminologically speaking, the maslahah can be defined as "a principle of reasoning to derive new rulings or as method of suspending earlier rulings out of consideration for the interest and welfare of the community".[35] It is quite clear from this definition that the notion "beneficence" of the Western resembles the idea of maslahah of Islam in terms of the importance of giving benefit for others. The motive of giving benefit is also quite similar. In the principle of maslahah, although an extreme generosity (ikhlash) sometimes becomes the motive of giving benefit to others, the primary motive underlining such action is still a moral obligation. There are many terms used to depict such obligation such as sacrifice (qurbani), duty (fard), love (mahabbah), and necessity (majburi).[36] Nevertheless, there is a salient peculiarity in each notion regarding the recipients of the intended benefit. In the principle of maslahah, the recipient of benefit seems to be more general than in the principle of beneficence, in the sense that the maslahah requires securing benefit to the people as a whole and not particular person or groups of person.[37] For example, donating a kidney to a family member in Pakistan is deemed "a sacrifice (qurbani)" which aims to secure not only the life of the recipient but also the survival of the family.[38] That is why the maslahah is usually translated as public interest or common good as opposed to the notion of an individual interest.
However, the croterion of addressing the public interest sometimes is nullified by the divine law for which they are called "disaccredited maslahah (maslahah mulghah). There are also public interests which are in agreement with the divine law for which then called "accredited maslahah (al-maslahah al-mu`tabarah)". The discussion of public interests (maslahah) in this paper nevertheless is not related to the two interests mentioned earlier. Rather, the maslahah to which I am referreing has no direct reference and validation from the divine law. This kind of public interest is known as "unrestricted maslahah (maslahah mursalah).[39] Therefore when the term maslahah is used in this work, it mainly refers to the unrestricted public interests (maslahah murasalah).
In this respect, Islamic scholars conceptualize three types of maslahah (public interest) by which the degrees of its urgency can be recognized. The first is called the essentials (daruriyyat) which consist of six essential values that should be promoted: protection of religion, life, intellect, lineage, property, and human dignity.[40] This must not only be promoted but also protected against any real or unexpected threat which undermines their safety. Many of the religious obligations and prohibitions are in fact aimed to preserve these essentials. For instance, prohibition of forcing religion to others is to protect religion itself or the prohibition of intoxicants is to preserve sanity and intellect. These essentials furthermore become the very basic criteria of the fulfillment of the maslahah. Any moral decision making which meets such criteria will be considered promoting public interest whereas which does not meet them will be viewed as inflicting harm, mafsadah. In the practice, there might be a conflict between among those essentials. The way that Islamic jurists deal with such conflict is to employ the judicial principle which states: "where it is inevitable, the lesser of the two harms should be done". In the case of organ transplantation, for instance, taking a kidney from one's body is "harm" because violating the sanctity of human body (human dignity). Not undergoing organ transplantation for a kidney-failure patient is also "harm" because threatens his life. Based on the mentioned principle, the lesser harm (taking kidney from human living or dead body) should be done in order to avoid the greater harm (the death of the patient).
The second kind of maslahah is labeled as the complementary (hajiyyat) which functions as a supplementary to the above essential values and also refers to interests whose neglect leads to hardship in the life of the community although not to its collapse.[41] In the classical Islamic law, this complementary public interest might refer to applying concessions (rukhsah) to a sick person or traveler in performing religious rituals. Sick persons are granted dispensation; for example, in the forms of permissibility of not doing fasting during Ramadan (a month in which Muslims is obliged to fast). Similarly, the enjoyment of foods, beverages, traveling, and other mundane activities are encouraged as far as they are complementary to the main objectives of protecting life and intellect. There is a legal Islamic principle in this regard says: "The origin (asl) of thing is permissible, unless there is a text [from Quran, Sunna or scholarly consensus] that prohibits it." In the context of biomedical ethics, whatever considered as supporting means to embody the primary public interest would be the complementary, such as: providing adequate medical equipments and laboratories in the hospital, providing good medical professionals, equipping nurses and physicians with bioethical values, or implementing vaccination program and health education. These complementary maslahah might embrace what Beauchamp and Childress calls "concerted social actions of beneficence" in secular bioethics. [42]
The third type of maslahah is termed as the embellishments (tahsiniyyat). Mohammad Hashim Kamali defines this maslahah as "interests whose realization leads to improvement and attainment of that which is desirable."[43] If Beauchamp and Childress have an ideal type of beneficence, the tahsiniyyat can be viewed in that way. It is an ideal because the fulfillment of the embellishments makes a certain moral action becoming more perfect. Indeed, some Islamic scholars like Imam as-Shatibi name this type of maslahah "noble virtues". Although these virtues might be not qualified as "the essentials", their goal is to improve quality of life, to make them easily accessible to average member of society, and even to embellish the noble virtues in order to render them more desirable.[44] The prevalent example cited in the classical Islamic law is ranging from personal cleanliness during performing prayer, avoiding extravagance in consumption, to moderation in the enforcement of penalties. In the realm of biomedical ethics, the tahsiniyyat can be extended to the availability of physicians and medical professionals who are aware of cultural or religious diversity, free-cost treatment for the poor, or a good environment that support a healthy life, and so forth.
Harm Vs Benefit
In addition, when the two principles are in conflict, secular bioethics harnesses the method of specifying and weighing-balancing to determine a justifiable action. Similarly, there is a way of resolving two conflicting judicial rules as well in the Islamic tradition which is analogous to one method of secular bioethics. Nevertheless, the Islamic method is much more inspired by religious text (Quran) which states: "They ask thee concerning wine and gambling. Say: "In them, there is great sin (harm), and some profit (benefit), for men; but the sin (harm) is greater than the profit (benefit)." They ask thee how much they are to spend; Say: "What is beyond your needs." Thus doth Allah Make clear to you His Signs: In order that ye may consider."[45]
The above mentioned verse clearly addresses the issue of weighing and balancing between a possible harm and benefit in the case of drinking wine and gambling. On the basis of this reasoning, Islamic jurists conceptualize Islamic legal rules anticipating the conflict either between two interests, between avoiding harm and gaining benefits, between two harms, or between prohibition and permission in a specific circumstance.
First, when there are two interests conflicting each other, Islamic jurists rely on the following judicial rule: "When two interests conflict, let the one which will bring greater benefit take precedent". Second, if the conflict is between avoiding harm and gaining benefit, the judicial rule says, "Removing harm has priority over promoting good (benefit)". Third, when there are two unavoidable harms, the Islamic jurists have a judicial principle which states, "Where it is inevitable, the lesser of the two harms should be done". Fourth, if a general moral judgment stipulates the prohibition of certain actions, there are circumstances which can override such prohibition. In this light, the judicial tradition formulates a principle, "Necessity renders the prohibited permissible".
The practical operation of those principles might be clearer when they are used to analyze a specific case, such as organ transplantation. Basically, the human body in Islam is viewed as a sacred, trustee (amanah) of God, and a part of human dignity. In the case of cadaver organ, for example, there are two possible interests; (a) protecting human dignity through preventing mutilation of the dead body and (b) saving life of the recipient of the organ. If medical assessments assure that the organ transplantation can save the recipient from death, then taking organ from the cadaver is lawful (mubah) because the benefit of saving life is considered greater than protecting the cadaver's dignity. In this regard, the judicial rule "let the one which will bring greater benefit take precedent" prevails.
However, if the donor is a living person and the act of organ donation threatens his life, the transplantation of the organ in this case is prohibited (haram) because the benefit of the organ donation (saving the recipient's life) can not outweigh the possibility of inflicting harm to the donor (i.e. the death of the donor). In this light, the judicial rule "harm has priority over promoting good (benefit)" is applied. However, if the act of organ donation does not threaten the life of the donor, the judicial ruling will be different. In the case of kidney donation, for example, the lesser harm in the form of taking kidney from the donor should be done in order to avoid the more serious harm, i.e. the death of the recipient. In this case, the legal principle "the lesser of the two harms should be done" is relevant.
Based on the above examples, it can be said that among legal arguments of the permissibility of organ donation are "to gain a greater benefit" and "to avoid a greater harm". Another condition which makes the organ donation permissible, even obligatory (wajib) is the condition of necessity (darurah). It happens when the organ transplantation is the only means to save a patient's life, whereas seemingly there is no one willing to donate such organ. Islamic jurists (fuqaha) would probably stipulate that the organ donation in this situation is social obligation (fard kifayah).[46] It means that the Muslim society will be blameworthy and sinful for the death of a person awaiting an organ transplant. Equally, once an organ has been provided for transplant, society is discharged from its duty.[47]
Conclusion
Based on the above discussion, we can conclude that there are some general commonalities between the principles of modern biomedical ethics and Islamic legal moral reasoning and its principles. Both of them have a deep concern with three ethical issues in bioethics; the principle of not inflicting harm, the rules of finding the best interest, and the ways of weighing-balancing or specifying when there is a conflict among moral principles. Indeed, the principle of nonmaleficence can be equated with the concept of "La Darar (No harm)" and the principle of beneficence can be associated with theory of maslahah (public interest). On the basis of such commonalities, I believe that Islamic legal-moral reasoning and its principles are compatible with modern bioethics. These commonalities could become not only a basis of a further dialogue between two cultures, but also an enrichment of biomedical insights for both medical traditions.
There are of course some differences in the world view and the details of those concerns. Those differences however do not prevent a possible further conversation between the two traditions. On the one side the modern bioethics could have a perspective of the possibility of promoting good outside the individualistic world view by referring to the notion of maslahah (promoting public interest). On the other side, Islamic legal-moral tradition ranging from qiyas, istihsan, istislah, la darar, and maslahah, could learn from the secular bioethics how to deal with more contemporary sophisticated bioethical issues which they never met before.
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[1] In the middle Ages, ther are several authors who wrote on Islamic medical ethics ranging from al-Ruhawi, al-Tabari, al-Majusi, Ibn Ridwan al-Baghdadi, to Ibn Abi Usayba. See Vardit Rispler-Chaim, Islamic Medical Ethics In the Twentieth Century, (Leiden-New York-Koln: E.J. Brill, 1993), 2.
[2] Majid Fakhry, Ethical Theories in Islam, (Leiden-NewYork-Koln: E.J. Brill, 1994), 1-8.
[3] Ibid, 48-49.
[4] Jadal literally means "debate" or "disputation". It is usually used in the forms of questions and answers in the aims of defeating the opponent of the debates.
[5] Qiyas in theology (kalam) is speculative reasoning by analogy. It indicates the syllogistic procedure which consists in induction from the known to the unknown (qiyas al-gha'ib `ala as-shahid).
[6] Bernand, M.; Troupeau, G. " Ḳiyās." Encyclopaedia of Islam, Second Edition. Edited by: P. Bearman , Th. Bianquis , C.E. Bosworth , E. van Donzel and W.P. Heinrichs. Brill, 2008. Brill Online. INDIANA UNIVERSITY BLOOMINGTON. 03 December 2008 <http://www.brillonline.nl/subscriber/entry?entry=islam_COM-0527>
[7] Nabil Shehaby, "`Illa and Qiyas in Early Islamic Legal Theory", Journal of the American Oriental Society 102.1 (1982), 33.
[8] Ibid, 33.
[9] Tariq Ramadan, Radical Reform: Islamic Ethics and Liberation, (New York: Oxford University Press, 2009), 56.
[10] Abdul Aziz Sachedina, No Harm, No Harassment": Major Principles of Health Care Ethics in Islam, in Handbook of Bioethics and Religion , edited by David E. Guinn, (New York: Oxford University Press, 2006), 275.
[11] Muhammad Hashim Kamali, Principles of Islamic Jurisprudence, (Cambridge: Islamic Text Society, 1991), 253.
[12] Tariq Ramadan, Ibid, 62.
[13] Among them are Shihab ad-Din al Qarafi (d. 1285), Najm al-Din at-Tufi (d. 1386), Taj ad-Din ibn as-Subki (d. 1369), and sometimes Abu Ishaq as-Shatibi (d. 1388).
[14] Tariq Ramadan, 67.
[15] A.K. Yeldham, "Islamic Medical Ethics and the Straight Path of God", Islam and Christian-Muslim Relations 16, no. 3 (July 2005), 214.
[16] Abdul Aziz Sachedina, 267.
[17] The Western medical principles which were introduced by Tom L. Beauchamp and James F. Childress consist four rules: the respect for autonomy, non-maleficence, beneficence, and justice. See Tom L. Beauchamp and James F. Childress, Principles of Biomedical Ethics (6th), (New York: Oxford University Press, 2009), 99-287
[18] Tom L. Beauchamp and James F. Childress, 149.
[19] Ibid
[20] Ibid, 150.
[21] Franz Rosenthal, An Ancient Commentary on the Hippocratic Oath, an article in Science and Medicine in Islam, Grreat Britain: Voriorum, 1990), 52-87.
[22] Abdul Aziz Sachedina, 275.
[23] Ibid, 280-286.
[24] In Arabic world, there are many derivative and synonymous terms which are used for signifying the idea of harm, such as: madarrah, darar, `usr, mafsadah, or mafasid. In the discussion of medical ethics, these terms can be used interchangeably.
[25] Abdul Aziz Sachedina, 286.
[26] Tom L. Beauchamp and James F. Childress, 150.
[27] This Prophetic tradition narrated by Abu Daud. See Abul Fadl Mohsin Ibrahim, "The Shari`ah View Point on Organ Transplantation", Journal of the Centre for Islamic Research 9, (1989-01-01), 79.
[28] Abdul Aziz Sachedina, 282.
[29] Tariq Ramadan, 62.
[30] Abdul Aziz Sachedina, 278.
[31] Abdul Aziz Sachedina, 285.
[32] Tom L. Beauchamp and James F. Childress, 197.
[33] Ibid, 201.
[34] Tom L. Beauchamp and James F. Childress, 197.
[35] Abdul Aziz Sachedina, 276.
[36] Farhat Moazam, Bioethics and Organ Transplantation in Muslim Society: A Study in Culture, Ethnography, and Religion, (Bloomington: Indiana University Press, 2006), 218.
[37] Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, (Cambridge: Islamic Text Society, 1991), 274.
[38] Farhat Moazam, 218.
[39]Mohammad Hashim Kamali, 272-273.
[40] Hamza Yusuf Hanson, Principles of Islamic Bioethics, in Caring for Muslim Patients (Edited by Aziz Sheikh and Abdul Rashid Gatrad), (Oxford-New York: Radcliffe Publishing, 2008), 47.
[41] Muhammad Hashim Kamali, 272.
[42] Tom L. Beauchamp and James F. Childress, 205
[43] Mohammad Hashim Kamali, 272.
[44] Abdul Aziz Sachedina, 279.
[45] Quran Surah al-Baqarah, 2: 219.
[46] Abul Fadl Mohsin Ebrahim, 80.
[47] A.K. Yeldham, 221.
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