Medical ethics from maqasid al shari'at

الملخص EN

Secularized European law denied moral considerations associated with ' religion ' and therefore failed to solve issues in modern medicine requiring moral considerations.

This led to the birth of the discipline of medical ethics that is neither law enforceable, by government nor morality enforceable by conscience.

On the other hand, Islamic Law is comprehensive and encompasses moral principles directly applicable to medicine.This paper proposes that the theory of medical ethics in Islam should be based on the 5 purposes of the Law, (maqasid al shari'at), that are also considered the 5 purposes of medicine.

The 5 purposes are preservation of religion and morality, (hifdh al ddin); preservation of life and health, (hifdh al nafs); preservation of progeny, (hifdh al nasl); preservation of intellect, (hifdh al aql); and preservation of wealth, (hifdh al maal).

Any medical action must fulfill one of the above purposes if it is to be considered ethical.

If any medical procedure violates any of the 5 purposes it is deemed unethical.

This paper proposes that the basic ethical principles of Islam relevant to medical practice be der ived from the 5 principles of the Law, (qawa'id al shari'at), that are: intention, (qasd), certainty, (yaqeen); injury, dharar: hardship, (mashaqqat), and custom or precedent, (aadat).

The (maqasid) and (qawa'id ) are used in a synergistic way.

The basic purpose of (qawa'id) is to provide robust rules for resolving situations of conflict between or among differem (maqasid).

The challenge before Muslim physicians is to liberate themselves from confusing and inconsistent European ethical theories and principles and instead to work hard to develop specific regulations for various medical interventions, (dhawaabit al tibaabat), by a renewal of (ijtihad).

This (ijtihad) will be based on primary sources of the Law (Ouran and sunnat), secondary sources of the Law based on transmission, (masaadir naqlyyat ijma and qiyaas); secondary sources of the Law based on reason, (maaqased al aqliyyat istishaab, istishan& istilaah); the purposes of the Law, (maqasid al shari'at); principles of the law, (qawa'id al fiqh); as Well as regulations of the Law, dhawaabit al fiqh.

In the early period of medical jurisprudence (0-1400 H) most issues could be resolved by direct reference to the primary sources.

In the middle period (1401 - 1420 H) issues were resolved by using (ijma, qiyaas, istishaad& istihsaan istilaah).

In the modern period (1420-) medical technology is creating so many issues whose resolution will require a broad birds eye-view approach that can only be found in the theory of (maqasid al shari'at).