General Principles of Islamic Law & Their Practical Applications for Medicine
  • Tue, 02/12/2008
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A general principle of Islamic Law is a universal legal ruling or proposition from which the particular legal rulings are derived. They are the general axioms that govern numerous specific legal rulings.

These general axioms do not address specific individuals or specific cases. Rather, they apply generally to the Islamic rulings that concern the actions of legally accountable entities.

Islamic Law is defined by numerous general principles. However, there are five major axioms that are extremely broad in their application and that all Islamic scholars agree upon, regardless of their schools of thought. They are the edifice upon which Islamic Law is built. These are the principles that we will be discussing in this article, and we will explore their relevance to laws governing the medical field.

The First Principle: Matters are to be considered in light of their objectives

The ruling that applies to a certain action depends on the intent behind that action. Whatever a human being does has legal consequences that stem from that person's purpose for carrying out that action.

There is evidence for this principle in the Prophet's statement: “Actions are but by intentions, and a man will have only what he intended. So whoever emigrated for Allah and His Messenger, then his emigration was for Allah and His Messenger. And whoever emigrated to attain some worldly benefit or get married, then his emigration is for what he undertook it to achieve.” [Sahîh al-Bukhârî (1) and Sahîh Muslim (1907)]

Application of this principle:

1. The patient's consent for the doctor to carry out a medical procedure can be established b any means that indicates the patient's agreement. This is because whatever clearly communicates the patient's will and intent has the same legal status as a verbal consent.

Ibn Taymiyah writes in Majmû` al-Fatâwâ (29/20):
What is customarily understood as permission – in general matters of consent or transfer of ownership or appointing an agent – is the same as a verbal permission. Granting consent and empowering an agent to act on one's behalf are matters which can be affirmed by word or by action. Also, knowledge of the rightful person's agreement is equivalent to that person's expression of agreement.
There is evidence for a gesture counting as consent for a medical procedure in Sahîh al-Bukhârî (5712) and Sahîh Muslim (2213) where `A'ishah relates:
We orally administered medicine to the Prophet (peace be upon him) and he made a gesture showing that he did not want it. We said: "This is just a patient's normal dislike for medicine."

When he came to, he said: "Didn't I forbid you to give me that medicine? All of you now will have to taste it."
This hadîth illustrates how a clear gesture is equal to a verbal statement in these matters.

2. The doctor's occupation is to help the patient recover from illness. This is why, in the event of unintentional malpractice on the part of the doctor, the compensation is pecuniary. However, in the event that a doctor intentionally seeks to injure the patient or cause the patient's death, then the doctor is treated like any other criminal and is subject to criminal proceedings and to the judicial retribution mentioned in the verse: " O ye who believe! the law of retribution is prescribed to you in cases of murder." [Sûrah al-Baqarah: 178]

The Mâlikî jurist al-Dasûqî writes in the legal commentary (3/295):
The person who is ignorant of medicine is not subject to retribution, because he did not have the intent to cause harm. He sought or at least hoped to help cure the patient. In the event that he had a malicious intent, he would be legally subject to the law of retribution.
3. Islamic Law permits a doctor to conduct an operation upon the body of the patient only to prevent harm or provide the patient with some lawful benefit. Otherwise, it is not permissible for the doctor to act upon the patient's body in any way. The human body is Allah's property and no one can interfere with the property of another in a manner that the owner does not permit. Examples of unlawful surgery would be a sex-change operation or cosmetic surgery to help a criminal avoid detection.

The Second Principle: Harm should be removed

The Prophet (peace be upon him) said: “There must neither be harm nor the imposition of harm.” [Sunan al-Daraqutnî (3/77), al-Mustadrak (2/57), and Sunan al-Bayhaqî (6/69)]

This means that no one should initiate harm against someone else, since causing harm is an injustice and is therefore forbidden. It also means that no one has the right to inflict harm upon someone else in order to alleviate harm that is affecting them. Whenever harm is encountered, it should be removed.

Application of this principle:

1. It is permitted to transplant an organ from a living volunteer donor to a person who has a dire need for it in order to save that person's life or restore that person's life to a semblance of normality. This is in order to remove harm. However, this is conditional upon it not causing inordinate harm to the volunteer donor by putting the donor's life in a compromised state. This is because harm is not to be removed through the causing of harm.

3. In the event that one spouse contracts a contagious disease (AIDS, for instance) it is the duty of that spouse to inform the other. They must cooperate in taking whatever preventative measures are necessary to prevent the disease from being passed on. Likewise, the wife has the right to demand a divorce in the event her husband contracts such a disease. This is to protect her from harm. By contrast, the woman's right to take care of her children is upheld, even if she contracts a disease like AIDS, since such a disease is not transmitted through care giving.

The Third Principle: Customary usage is the determining factor

Norms and customs are recognized as a determining factor in deciding matters related to social transactions. Legal rulings are applied according to what customary usage dictates in the absence of any textual evidence to the contrary.

Allah says: "And their maintenance and their clothing must be borne by the father according to custom." [Sûrah al-Baqarah: 233]

Among the evidence for the recognition of custom in Islamic Law is the following hadith related from `A'ishah in Sahîh al-Bukhârî (2211) and Sahîh Muslim (1714):
Hind, the mother of Mu`âwiyah, said to the Prophet (peace be upon him): “Abû Sufyân (Hind's husband) is a tight-fisted man. Is there anything wrong if I take money from him secretly?”

The Prophet (peace be upon him) said: “Take for yourself and your children to suffice your needs according to what is customary.”
Ibn Hajar al-`Asqalânî, in his commentary on Sahîh al-Bukhârî, observes: “He referred her to customary usage in a matter that was not precisely defined in Islamic Law.” [Fath al-Bârî (4/407)]

Application of this principle:

1. If a doctor carries out his practice according to the theoretical and practical principles of medicine as is customarily accepted by medical specialists and patient dies or suffers injury, then the doctor bears no financial liability.

2. The patient's consent to undergo treatment does not include medical treatments that are not customarily understood by such consent. Therefore, if the patient's general consent to undergo treatment is not generally understood to include major surgery, then the patient's consent for the surgery must be taken separately, as dictated by custom.

The Fourth Principle: The presence of difficulty requires that allowances be made to facilitate matters

When putting certain legal rulings into practice brings about serious difficulties for the people in their person's or their wealth, then Islamic Law makes concessions.

Allah says: " Allah intends for you ease and does not intend for you hardship." [Sûrah al-Baqarah: 185]

Allah also says: "Allah has placed no difficulty upon you in religion." [Sûrah al-Hajj: 78]

Application of this principle:

1. Islam encourages having children to strengthen the community. However, if this brings about hardship for the couple, they have the right to use birth control to regulate when they have children and how many they have, according to their particular needs. The determination of this matter is left to their own discretion.

2. Exposing one's body to a member of the opposite sex is unlawful. However, if there is a medical need to expose a part of the body to doctor for treatment, then this is allowed to alleviate the hardship that patient would otherwise face. The guiding principle here is that matters should be taken only as far necessary.

3. The sale of blood is unlawful in Islam. This is because the Qur'ân prohibits blood, and it is forbidden to sell something that is unlawful. Nevertheless, if a patient needs blood and there is no way to ensure its availability except by paying for it, then it is permitted to pay for it, and the sin is only upon the one who receives the money.

The Fifth Principle: That which is established with certainty is not removed by doubt

Essentially, this principle means that anything which is established with certainty requires absolutely certain evidence to indicate that it is no longer the case. Doubts are not sufficient to render it null.

The Prophet (peace be upon him) said: “If one of you feels something in his stomach that makes him wonder if anything had passed from him, he should not leave the mosque until he either hears or smells something.” [Sahîh Muslim (362)]

Al-Nawawî makes the following observation in his commentary on Sahîh Muslim (4/49):
This hadîth sets forth a principle of Islam and a major axiom of Islamic Law, which is that things are legally assumed to remain as they are unless and until it is established with certainty that they are otherwise. Extraneous doubts are of no consequence.
Application of this principle:

1. It is unlawful to declare someone dead (actual death which brings about legal consequences) merely by a doctor's statement that the patient is brain-dead. It is necessary to establish death without an ambiguity. He heart must stop beating, breathing must cease, and the other typical signs of certain death must be observed. This is because the default assumption about a living person is that he or she is still alive, so the contrary must be established with absolute certainly.

At the same time, it is permissible to take the patient off of life support if all brain function has ceased and a panel of specialists determined that there is no chance for it to resume.

2. A person who has completely developed male or female sexual organs cannot undergo a sex-change. In the event that the person has anatomical attributes of both genders, then the dominant gender will be adopted and the patient may undergo surgery and/or hormone therapy in order to remove the gender ambiguity.