Juristic discourses on medical issues

Considering the comprehensive scope of the Islamic legal corpus, which includes ethical- legal assessment of the acts undertaken by legally competent individuals pertaining to all aspects of their lives, one would expect to find juristic discussions on a wide range of ques­tions that fall under the scope of medical ethics or bioethics.

Analogies were often made between medicine and shar. While the former aims to ensure the well-being of the body, the latter aims to ensure the spiritual well-being of the believer both in this life and in the hereafter.⁹ Arabic terms for illness and healing occur in the Qur'an both in the physical as well as spiritual senses and the Qur'an itself is referred to as a source of heal­ing (Q. 26:80; 17:82). Similarly the Prophetic Sunnah includes numerous references to med­ical issues to the extent that standard collections of hadith reports include chapters dedicated to medicine (al-tibb) as well as endorsement of specific therapeutic practices (taddwi). These scriptural references came to form the substance of a sizeable body of literature known as Pro­phetic medicine (al-tibb al-nabawt), which also reflects pre-Islamic Arabian healing practices.¹⁰ Together with this Prophetic medical tradition, another philosophical medical tradition devel­oped after the classical Greek tradition.

Examples of juristic discourses on medical issues include the debate on legal liability in medical practice and the extent to which a medical practitioner (e.g. physician, veterinarian, circumciser, or cupping specialist) would be held accountable for injuries resulting from med­ication errors. The discussion revolves around a report attributed to the Prophet in which he notes: ‘whoever practices medicine without being known as a competent practitioner shall be held accountable for any injury that he may cause’.¹¹ Medical practice is pursued on the as­sumption that it is undertaken for the ultimate purpose of achieving the benefit of the patient. It may entail invasive procedures which, in the process, could potentially compromise the sanctity (hurma) of the human body and consequently violate its inherent dignity (karama). The question that the jurists debated, therefore, was the extent to which these two consid­erations could be reconciled: achieving the patient’s benefit without compromising human dignity or the sanctity of the human body.

Jurists of the various schools developed guidelines to govern and regulate liability for medical errors as well as underlying grounds for applicable penalties. Following the Pro­phetic report cited above, the majority of jurists argued that a competent physician should not be liable for injuries resulting from medical errors but they disagreed on the grounds for such ruling.¹² For example, the Hanafis held that absence of liability is predicated on the fact that medical practice is a social necessity which is indispensable for the well-being of society. Holding physicians responsible for inadvertent errors may eventually discourage people from pursuing this profession, which in turn would constitute a greater harm at the collective level. At a deeper level, this social necessity is recognized by Shari'ah and it forms the basis for the Lawgiver’s permission for medical professionals to practise medicine and, if necessary, violate the original dignity of the human body in order to achieve a higher benefit.

The Shafi'is and Hanbalis agree with the Hanafis that negation of liability is predicated on the consent of the patient and/or his family but they add also the intent of the medical prac­titioner. They argue that the practitioner’s conduct should be driven by the intent to benefit the patient not to harm him. Investigation of such intent is subject to relevant professional standards known among the experienced practitioners. The Malikis argue that negation of liability is based primarily on the ruler’s permission for the practitioner to practise the profes­sion; and secondarily on the permission of the patient for the practitioner to examine him.¹⁴ The combination of these two types ofpermission exonerates the medical practitioner as long as his conduct is governed by the established standards of the profession. More particularly, established professional standards would determine the extent to which a given injury is a result of a common inadvertent error or an uncommon excessive jahish) one. While the former may be tolerated as a type of acceptable professional error, the latter should be subject to criminal investigation.

Another example ofjuristic discourses on medical issues is the debate on the permissibility of pursuing medical treatment. The juristic debate revolves around the effort to reconcile scriptural references, which seem to point in different directions. While some Prophetic re­ports, including those recording Prophetic precedents, indicate the permissibility and even necessity of seeking medical treatment, others emphasize the importance of trusting God and putting one’s faith in His ability to heal diseases without any intervening causes. For example, reports advocating the pursuit of medical treatment include: ‘God did not send a disease except that He sent along with it a suitable cure’.¹⁵ On the other hand, other reports advocating total reliance on God may imply avoidance of medical treatment.¹⁶ In light of these references, five main juristic views were developed concerning the question of medi­cal treatment: recommendation, obligation, permissibility, permissibility with preference for avoiding medical treatment, and impermissibility.

The first view, recommendation of medical treatment, is adopted by the majority of Shafi'is and some Hanbalis on the basis of several Prophetic reports indicating the importance of seeking medical treatment and also on the basis of actual precedents showing the Prophet’s use of medical treatment. In support of this view the Hanbali jurist Ibn al-Qayyim argues that seeking medical treatment confirms the connection between causes and their ensuing effects, which does not necessarily conflict with putting one’s faith in God. Belief in Divine omnipotence calls for respecting, rather than neglecting, the causes that God tied to certain effects.¹⁷ The second view, obligation of medical treatment, is adopted by some Hanafis and some Hanbalis, especially if the efficacy of treatment could be ascertained. In this case, ac­cording to this view, neglecting medical treatment amounts to intentionally harming or even killing oneself, which is explicitly prohibited in the Qur’an. The third view is adopted by the majority of Hanafis, the Malikis, and some Hanbalis. According to this view, seeking med­ical treatment is permissible as long as one believes that healing can only be caused by God. The fourth view is adopted by the majority of Hanbalis and some Shafi'is. According to this view, seeking medical treatment is permissible but avoiding it may be preferable because such attitude demonstrates one’s faith in God’s healing power.¹⁸ The fifth attitude advocating the impermissibility of medical treatment is attributed to some mystics, who argue that seeking medical treatment conflicts with one’s faith in God and His healing power.¹⁹

The bulk of available evidence and careful examination of the scattered reports on this is­sue seem to endorse the attitude in favour of pursuing medical treatment. This attitude seems to be compatible with the spirit of the Shari'ah and its ultimate objectives, which include preservation of life. Various enactments such as those pertaining to personal hygiene, reli­gious concessions due to illness, and general legal maxims on removal of harm also support this attitude.²⁰ The question of the legal status of medical treatment has been one of the most important questions for Islamic medical ethics. Not only does it reveal early engagement of Muslim jurists with this issue but it continues to be relevant for the assessment of various bioethical questions in the modern period ranging from the permissibility of organ donation to boundaries of withdrawing or withholding medical treatment in end-of-life situations. It also reveals the larger theological underpinnings of certain legal discussions pertaining to medical issues such as the religious significance of illness, the causal connection between treatment and cure, and also the connection between illness and belief in destiny.²¹

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