Islamic law and conceptualization of modern bioethics
The modern bioethical discourse that emerged and developed in the West since the second half of the 20th century in response to various socio-cultural, legal, and technical factors was able to achieve global dominance through its integration in the modern medical curriculum, which spread all over the world, including Muslim-majority countries.
This discourse is essentially secular and draws on Western philosophical sources. Apart from this dominant Western bioethical discourse, normative religious discussions emerged in Muslim-majority countries, largely coinciding with the importation of modern biomedical applications. These discussions, however, have often been perceived as reacting to the dominant Western discourse, which seems to set the agenda and define the terms of discussion.22 These Muslim discussions come in different shapes and forms ranging from direct quotations from Islam’s scriptural sources to systematic reflections in light of the various resources of the Islamic normative tradition.Considering the classical role of Islamic law in the definition of Islamic ethics, if not Islam itself, as well as the comprehensive scope of Islamic legal rules, bioethics in the Muslim context has largely consisted in ethical-legal assessment.23 The term al-fiqh tibbi is sometimes used to signify juristic deliberations on biomedical issues, which reveals the unique role of the Islamic legal framework for the formulation of bioethics in the Muslim world.24 These deliberations reveal the effort to identify related discussions in the classical legal corpus for the extrapolation of appropriate rulings (ahkdm) concerning modern bioethical questions.25 Due to the fact that most bioethical questions involve novel procedures, which lack exact precedents in the Islamic legal tradition, one of the most important sources for the study of bioethics in the Muslim world has been the fatwa literature.26 The past few decades witnessed a significant increase in the volume of fatwas dealing with bioethical issues, which has been generated in response to increasing demand for answers to queries associated with the steady evolution of modern technology and its various biomedical applications.27 In addition to these individual fatwas, another important resource has been institutional collective fatwas by national and transnational organizations. These institutional fatwas are often issued after thorough examination of the technical as well as normative dimensions of the issues in question and they reflect a growing tendency emphasizing collaboration between technical experts and religious authorities.28
This synergy has inspired a new form of collective Ijtihdd, which is distinguished from the standard (individual) form that was discussed and practised by Muslim jurists throughout the course of the Islamic legal tradition.
The emergence of the term ‘collective ijtihdd ’ (ijtihdd jamd'd) coincided with the rise and development of national and transnational juristic councils, especially during the second half of the 20th century.29 In addition to national fatwa-issuing bodies, some of the most important transnational institutions for biomedical issues have been the Islamic Fiqh Council of the Muslim World League (based in Mecca, established in 1978), the International Islamic Fiqh Academy of the Organization of Islamic Cooperation (based in Jeddah, established in 1981), and the Islamic Organization for Medical Sciences (based in Kuwait, established in 1984). The scholarly conferences and meetings that these institutions organized and the literature that was generated in the process constitutes an indispensable resource for religious-moral decisions concerning biomedical issues. This growing body of normative opinions and deliberations within the Muslim context has drawn the interest of scholars across the life sciences, humanities, and social sciences. For example, medical anthropologists observe that in the absence of binding legislation, religious-moral guidance in the form of authoritative fatwas by prominent jurists is often used to fill legislative gaps.30 The following section will explore a sample of biomedical issues that shows the role of Islamic law (particularly as constructed by these juristic institutions) in the formulation of Islamic normative rulings on some important bioethical issues.3
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