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Legal opinions

By:
Mutaz al Khatib
Source:
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Legal opinions

The Arabic word “fatwā” means elucidation of a problematic legal issue (Ibn Fāris, 1979, 474/4; Ibn Manẓūr, 1993, 148/15). From a technical juristic perspective, the term means the act of communicating an Islamic ruling on an issue, though this ruling is not binding (al-Qarāfī, n.d., 51/1). Islamic jurisprudence is founded on the principle that for each incident there exists a divine ruling (al-Shāfiʿī, 1940, p. 20). This divine ruling is interpreted either by an authoritative individual who defines and elucidates the Islamic position (initially the Prophet and subsequently the mufti) or by an executive (represented by the judge and the caliph (al-Qarāfī, n.d., 206/1). Islamic jurisprudence emerged at the end of the first Hijrī century and eventually four Sunnī schools had dominance over Islamic legal thought, viz. Ḥanafī, Mālikī, Shāfiʿī and Hanbalī, each named after its founding figure. These doctrinal schools became known as such only after the death of the founders themselves, namely Abū Ḥanīfah (d. 767), Mālik bin Anas (d. 795), Muḥammad bin Idrīs al-Shāfiʿī (d. 819), and Aḥmad bin Ḥanbal (d. 855).

Originally, the Arabic term “muftī” designated a jurist-mujtahid (al-Juwaynī, 1996, p. 17), meaning that the mufti is the person who singularly knows the Islamic rulings as derived textually from the Qurʾān and sunnah or inferred through analogy (al-Ghazālī, 1998, p. 572). However, due to the lack of mujtahids (scholarly experts possessing the quality of ijtihād), scholars were later compelled to ascribe the legitimate status of mufti to several less qualified experts known as muqallidūn (imitators). These muftis then moved gradually from being doctrinal mujtahids who practice juristic deduction within the limits of a particular legal school, to muftis who are lower in status (Ḥallaq, 2001, pp. 112–124). Scholars customarily distinguish different categories and ranks of muftis to determine their respective influence and authority (see Ibn al-Ṣālāh, 2002, pp. 91–99). In modern times many scholars of Islamic legal studies who do not meet the traditional standards nonetheless issue legal decrees. Recent developments have led to deviation from the doctrinal imitation and to the transcendence of the hierarchical classification of muftis. The International Islamic Fiqh Academy in Jiddah serves as an illustration of this trend. It provides a list of their members as well as (external) experts who work closely with the religious scholars to address the issues in question.

Besides the term fatwā, Fiqh academies also added new terms, namely resolutions (qarārāt) and recommendations (tawṣiyāt), without clarifying how these terms differ from fatwā. However, it seems that the term “resolution” was used because of its flexibility to articulate the findings of these academies. Resolution is broader in scope than fatwā because the latter exclusively relates to the traditional five categories of rulings (al-aḥkām al-khamsah), whereas the former may address broader issues that concern the public in general. Resolutions can also address theoretical and/or hypothetical issues. Also, the term resolution was born in the context of collective ijtihād, which usually implies a higher degree of authority than the fatwā (generally issued by an individual scholar), yet still considered lower than “consensus” (ijmāʿ). On the other hand, recommendations are usually generated by an executive party; they lack obligatory status and thus can be considered even less binding that the fatwā.

The interest of muftis in the medical field is motivated by three main factors. The first factor has to do with the fact that protecting the body/soul is a major objective of Islamic law. The body encompasses joint rights between God and the human being. This, in turn, restricts the person’s freedom to dispose of the body either out of one’s own accord or by granting others rights on it. The second factor consists of the argument that the body is a medium for the performance of the acts of worship and the required commandments; therefore, it should be preserved for a blissful life in this world and in the Hereafter (Ibn ʿAbd al-Salām, 1991, 198/1; al-Shāṭibī, 1997, 32/2). The third reason is that whatever emanates from the body is subject to the rules of fiqh, and that according to Islamic law, human acts are defined in terms of five categories labeled as: required, recommended, permitted, undesirable, and forbidden. These categories apply to all human actions (Ibn ʿAbd al-Salām, 1991, 198-223/1).

Medical Provisions: From Traditional Fiqh to Fatwās of al-Nawāzil

Medical issues in the Islamic tradition relate to two main areas: scriptural narrations about medicine and fiqh. The former covers medical issues reported by ḥadīth (teachings and sayings of the Prophet). The well-known canonical collections of al-Bukhārī and Muslim, for example, include chapters covering issues related to medicine. Around the fourth Hijri century, these scattered narrations developed into a distinct genre of ḥadīth literature known as Prophetic Medicine (al-ṭibb al-nabawī) (al-Aṣfahānī, 2006, 1/169).

Islamic jurisprudence, on the other hand, relates to medicine differently. Several branches of jurisprudence revolve around concepts such as the beginning of life, the end of life, sickness, physical defects, lineage, the provision of treatment, etc. The function of the jurist is to safeguard the religion and to oversee the human condition in its various states, that is, health, sickness, strength, and weakness, according to the provisions of Islamic law. In classical times the doctor’s work consisted of identifying the conditions and properties around which the legal provisions revolved (e.g., the nature of the disease, the presence or absence of pain affecting health, etc.). But such legal matters as the signs of life and death, and the ascertainment of the mental state of a person with a view to absolving him of legal responsibility (taklīf) (Dols, 1992), among other tasks, were delegated to jurists rather than doctors.

The modern period witnessed several unprecedented developments for which jurists have struggled to find parallels or relevant teachings in the law books of their school of jurisprudence. First, modern medicine tends to revolve around “the improvement of the quality of life” rather than matters of “health and disease” (Veatch, 2012, pp. 146–147). Modern medicine often seeks to achieve the quality of life by controlling and remodeling it, in some cases through radical procedures such as genetic engineering. This is carried out in accordance with the new conditions dictated by modernity, its standards and philosophy about human beings and life. Another modern development concerns the contemporary jurist, his qualifications and role in modern times. In short, the modern doctor, with his skills, expertise, and direct impact on human well-being, transcends the parameters of traditional religious jurisprudence. This development raises contentious questions regarding religiously required and impermissible treatments.

These transformations outside the Islamic tradition and its sources of authority have led many jurists to adopt an apprehensive attitude toward modern medical techniques, as well as the knowledge and the growing authority of the doctor. Thus, many muftis have the tendency to adopt a line of intransigence and prohibition; for example, in the book al-Ḥarām fi al-Sharīʿa al-Islāmiya (The Forbidden in Islamic Law) (al-Raysūnī, 2011, pp. 253–290). Some jurists, however, have realized the magnitude of the changes, and have worked to address problems and solutions within the framework of the Islamic tradition (see al-Qaraḍawī 1996, p. 105).

These modern transformations have prompted the jurist to think beyond the context of the traditional questions. In effect this resulted in a reversal in the pattern of classical jurisprudential thought because now the legal process revolves around the patient. By contrast, in traditional Islamic jurisprudence there were four types of solutions: the entrustment of the disease to Allah’s care, the use of Prophetic medicine, reliance on the doctor’s prescription—as is predominantly the case—or the use of Qurʾānic ruqya (incantation) and prophetic dhikr (remembrance through devotion) (Ibn al-Ḥāj n.d., 115–124/4). The contemporary jurist became involved in three areas: first, the modern impact on the human being; second, the effect of modern transformations on the jurisprudential system and its rules that govern the principles of human behavior (mukallafūn); and, third, the legitimacy of the methods of this scientific progress in the field of medicine.

The Fatwā Approach in Medical Exigency (al-Nawāzil)

The jurisprudential doctrinal tradition of the Islamic legal schools has maintained its authority over the centuries, and has been able to accommodate the recent developments in accordance with the mechanisms of the school itself. However, starting around the end of the nineteenth century, the techniques of the doctrines in adapting to the developments were unable to absorb the new changes. This resulted in detachment from the single-school approach to opt for choice from within the four jurisprudential schools. Also modern personal status legislations based on the single school started subsequently to borrow from the other schools, motivated by the protection of welfare, as was the case in Syria, Tunisia, and Iraq since the mid-twentieth century (ʿAṭiyya, 2000, pp. 36–38).

In the light of these changes, key figures in the Islamic reform movement advocated the necessity of opening the door of ijtihād and abandoning imitation. Several fatwās emerged on the evolving issues in various fields by Muḥammad ʿAbdū (d. 1905), Rashīd Riḍa (d. 1935), Muṣṭafā al-Marāghī (d. 1945), ʿAbd al-Wahhāb Khallāf (d. 1956), Maḥmoud Shaltūt (d. 1963), Muḥammad Abū Zahra (d. 1974), ʿAbdul Raḥmān Tāj (d. 1975), and ʿAlī al-Khafīf (d. 1978), among others. There was a surge of fatwās issued by individuals in the subsequent decades.

These complex and conflicting developments led to the rise of the idea of collective ijtihād. Since the 1970s a number of councils have been convened in response. The most prominent of these are the Islamic Fiqh Council in Mecca, established in 1977; the International Islamic Fiqh Academy, established in Jiddah in 1984. The Islamic Organization for Medical Sciences was founded in 1984 in the context of the emerging field of biomedical ethics, especially in the wake of the first case of birth through artificial insemination (1978), which brought to the fore the ethical challenges that must be addressed from an Islamic perspective.

In the classical era jurisprudence dealt with new developments through ijtihād in one of two ways. The first was deduction or analogy modeled on parallel derived rules stipulated by the Imams of the schools; the second was inference from legal evidence in accordance with the principles of the Imam of the school regarding extrapolation (see al-Juwaynī, 1981, pp. 421–423; Ibn al-Şalāḥ, 2002, p. 100). However, the present-day changes have triggered debate among contemporary jurists, as demonstrated by the decision of some to stop issuing fatwās on several incidents. For example, Sheikh ʿAbd al-ʿAzīz bin Bāz halted fatwā issuance regarding in vitro fertilization (the Islamic Fiqh Council in Mecca, decision no. 2, 1985), and delayed taking decisions on a number of similar matters. This can be seen in several cases in the Fiqh Councils of both Mecca and Jiddah, regarding not only in vitro fertilization, but genetic fingerprinting, the determination of the sex of the fetus, and genetic engineering. The confusion is due to the magnitude of the developments that school-bound jurisprudence can no longer handle by using its traditional mechanisms. Many medical innovations are the result of a shift in the overall pattern of life, which makes modern jurisprudential ijtihād a necessity.

This contemporary ijtihād departs from the imitation (taqlīd) and its hierarchy; it also results in a detachment from the authority of the school itself whose pre-modern parameters could not embrace these major occurrences. Therefore, the Islamic Fiqh Academy in Mecca delimited its mission, which consists of “stating the legal provisions pertaining to the emerging problems and occurrences on the basis of the acknowledged sources of Islamic legislation” (Islamic Fiqh Council, 2006, p. 14). On the other hand, the International Islamic Fiqh Academy in Jiddah defined its mission as “investigating the emerging issues using an approach based on the strength of the legal evidence, and striving to achieve the recognized legal objectives” (Journal of the Islamic Fiqh Academy, 1986, p. 173). The Islamic Organization for Medical Sciences, however, strove to bring together doctors and muftis for the first time, whereby doctors became involved in the fatwā issuance process, and whose authority in reality became equivalent to co-muftis (Ghaly, 2015, pp. 286–311).

Relying on the acknowledged sources of Islamic legislation, the strength of the legal evidence, and involving doctors in issuing fatwās in bioethics reflects the expanded parameters of jurisprudential perception. This emphasis on direct evidence and the practice of ijtihād differs from one person to another and from one academy to another. For instance, the Mecca-based Academy is predominantly of the Salafī trend, even if it comprises scholars hailing from the other Sunnī schools. The Jiddah-based Academy is affiliated with the Organization of the Islamic Conference, in which all Muslim-majority countries are represented, including the Shīʿite Iran, and therefore takes a formal political aspect—because each country selects the member who represents it—as opposed to the Islamic Organization for Medical Sciences, which gathers a diverse conglomerate of doctors and jurists. The muftis and the academies did not consider elucidating their methodologies in issuing fatwās. In addition, the academies in particular include members reflecting diverse sources of influence and orientation, which has made it difficult to unify the outcomes of their thoughts into a single approach.

The Deductive or Analogical Approach

In their practice of ijtihād jurists typically use analogy as an approach to establishing a ruling about which there is no relevant text in the Qurʾān or sunnah. As a result, the process shifted from the use of analogy in dealing with texts of the Lawgiver (i.e., Qurʾān and sunnah) to the statements of the Imam of the school. If, for instance, no text could be found in the school to evaluate a given incident, nor could the matter be treated within a (more) general text of the school, the school mujtahid proceeds to infer the ruling by using analogy based on parallels of the incident in the school, which is called deduction (takhrīj). The competency of the jurist is measured by his ability to draw analogies and deductions. This approach prevailed in classical times in the context of al-nawāzil (newly arisen problemata) (Ibn Khaldūn, 1988, 568/1, and Juwayrū, 2014, p. 254). This course was predominantly followed by a large number of muftis who were keen on finding parallels to medical developments in traditional jurisprudence. Though the matter of deduction remained confined within the borders of the single school, modern developments have pushed muftis to transcend the principle of deduction founded on the single school. To illustrate the numerous instances of this approach, one could list the analogical prohibition of the permanent sterilization of women on the basis of the proscription of castration, as both processes interrupt fertility (al-Raysūnī, 2014, pp. 108–109).

The analogical approach is adopted in the legal decrees of Jād al-Ḥaq ʿAlī Jād al-Ḥaq (d. 1996), ʿAbd al-Sattār Abū Ghuddah (b. 1940), Muḥammad Naʿīm Yāsīn (b. 1943), Muhḥammad Sulaymān al-Ashqar (d. 2009), and ʿUmar Sulaymān al-Ashqar (d. 2012), among others. Jād al-Ḥaq, for instance, was the first to decree through deduction the permissibility of the transfer of human organs based on a number of considerations, notably the argument that it is permissible to incise the belly of the dead person in order to extract pilfered stuff or the fetus, and based on the fact that the human body, alive or dead, is pure in the eyes of scholars and jurists who have permitted the use of a pure human bone to mend a broken one (Jād al-Ḥaq, 1995, pp. 234–249).

The Approach of the Higher Objectives (Maqāṣid) and Legal Maxims (Qawāʿid)

Ibn ʿAshūr (2001, p, 251) defines objectives as the set of “meanings and wisdoms envisaged by the Lawgiver in all or most of the cases of legislation.” They reflect the rational perception adopted in the absence of a direct textual reference. Objectives encompass public interest, the closing of loopholes, and the application of juristic preference (istiḥsān), which is to decide upon a matter on the basis of its parallels. This process is a departure from analogy for the sake of a desirable interest based on specific evidence or necessity. The concept of objectives was part of the investigative areas of jurisprudential analogy, but it has been expanded to become a mechanism to override partial analogy itself. The basic rule in the jurisprudential tradition is that the jurist builds his judgments on deduction. Still, several of the collective and individual fatwās have gone further to build either on objectives and interests (maṣāliḥ) or on the overall jurisprudential principles in response to modern pressures and new developments.

The invocation of overall objectives and principles was initiated by reformists such as Khayr al-Dīn al-Tūnisī (d. 1890) and Muhammad ʿAbdū (d. 1905) as part of their effort to align Islamic principles with those of the West and to lay the foundations for the organizations and institutions in the modern nation-state (al-Khatib, 2007, pp. 2731). Since the 1970s, however, the urgent need to produce detailed fatwās applicable to all new developments has compelled many muftis and jurisprudential academies to follow the reformist approach. Therefore, muftis, including representatives of the Council of Senior Scholars, the Permanent Committee for Scholarly Research and Iftāʾ in the Kingdom of Saudi Arabia and the Academy of Mecca, have resorted to deduction directly on the basis of evidence. This was also the dominant trend in the case of the Jiddah-based Academy and among many individual muftis, such as Maḥmūd Shaltūt, Muṣṭafā al-Zarqā, Yūsuf al-Qaraḍāwī, and al-Mukhtār al-Salāmī, among others. This approach was also adopted by the Jiddah-based Academy in its resolutions and fatwās, which were usually released according to objectives-oriented and interest-based lines of reasoning, both in terms of permissibility and prohibition, rather than the deduction-based approach. Examples include the Academy’s prohibition of breast milk banks in order to preserve legitimate lineage, which is one of the higher objectives, and because breastfeeding is a tie of kinship (Journal of the Islamic Fiqh Academy, 19862, p. 424). The Academy also ruled on the conditional permissibility of using human organs, in implementation of the objectives of Islamic law and the accomplishment of the interest of mercy and altruism (maṣlaḥat altarāḥum wa al-īthār) (Journal of the Islamic Fiqh Academy, 1988, p. 507). This objectives-oriented approach is clearly evident in the preamble of many of the decisions of the Academy, as is the case with the issues of cloning, birth control, and the use of human organs.

Many modern muftis such as Muṣṭafā al-Zarqā (d. 1999) and Yūsuf al-Qaraḍāwī (b. 1926) do not hide their tendency toward renewal and a critical mindset. The former explained that collective ijtihād and the emergence of jurisprudential councils resulted from the modern trend of renewing jurisprudence and drawing upon it in the enactment of laws; he claims that this prompted “the new deductive approach in accordance with the fundamentals of jurisprudence and the objectives of the Sharia in relation to evolving new issues that the jurisprudential schools did not deal with in old texts.” He stretched the classical concept of deduction (takhrīj) which was limited to the text of the founder of the school and to the parallel cases. Al-Zarqā practiced this in his fatwās by permitting autopsies to learn about the different types of diseases or to learn medicine, aiming to achieve the required interests (al-Zarqā, 1957, 10). Al-Qaraḍāwī, on his part, has written about the need to undertake the new ijtihād and reconsider the jurisprudential legacy based on the criteria of the objectives of Islamic law, human interests, and the facilitation of human life. Each epoch experiences problems and new developments unknown to previous generations, and some old things may undergo changes in their nature, size, or impact. Modernity (al muʿāṣarah) requires, from al-Qaraḍāwi’s point of view, two types of ijtihād: selective (al-ijtihād al-intiqāʾī) and constructive or original (al-ijtihād al-inshāiī) (al-Qaraḍāwī, 1996, pp. 101–107). As an example of the selective ijtihād, he cites the Andalusian jurist Ibn Ḥazm who determined that the breastfeeding that creates a prohibition is only what “the baby sucks from the breast of the the suckling-mother with his mouth directly.” Hence his fatwā permitting milk banks on this basis, as it “fulfils a considered legitimate interest and responds to a necessary requirement” (al-Qaraḍāwī, 1994, 553–555/2).

Despite their adherence to the textualist Ḥanbalī school, Saudi scholars have, in many medical issues, relied on the principle of public interest or the general principles of Sharīʿah rules. Some examples of the unanimous fatwās of their Council of Senior Scholars include the permissibility of autopsies for the purpose of verification of a criminal case or epidemic diseases to “achieve several interests in the areas of security, justice and the protection of society from infectious diseases, contending that the depravity of violating the sanctity of the autopsied corpse is eclipsed by the many general public interests thus achieved.” Other examples include the fatwā of the Council of Senior Scholars permitting cornea transplants based on interest, and the fatwā of the Permanent Committee for Scholarly Research permitting complete and partial anesthesia “as entailed by the overriding interest” (al-Fawzān, 2004, pp. 425–426, p. 342, p. 209).

In Islamic jurisprudence, the use of interest (maṣlaḥa) is restrictive in the sense that it should be legally acknowledged or be a form of public interest that the Sharīʿah did not discuss. Interest in the absolute sense, however, is ruled out. Accordingly, all fatwās forbid the abortion of the fetus when it has reached 120 days, on the basis that the soul was breathed into it

"even when medical diagnosis conveys that it is deformed, unless it is stated in the report of a medical committee of trustworthy specialist doctors that the continuation of the pregnancy represents certain danger for the mother's life, in which case abortion is permitted, whether the fetus is deformed or normal, to ward off the higher of the two harms" (Islamic Fiqh Council in Mecca, Second Session, 1990).

The Problem of Overlap between the Two Approaches

Fatwā is torn between two different understandings of how people should interpret Islamic teachings. The first, as stated by Ibn Taymīyah, perceives that “whenever human beings are able to follow the texts, they should not digress from them; otherwise, they should exercise ijtihād in order to know the parallels (mentioned in jurisprudential sources). Indeed, it is rare for texts to lack what experts of texts and their legal provisions are looking for” (Ibn Taymīyah, 1995, 28/129). The second approach, however, considers it an exaggeration to claim that the old books contain answers to all questions, which is the position adopted by Muṣṭafā al-Zarqā and Yusuf al-Qaraḍāwī. This means that the proponents of the former approach will likely invoke the objectives and general principles on the condition that deduction is not possible. For proponents of the latter approach, deduction is not altogether ruled out, but it is not a condition in dealing with new developments in jurisprudential matters. Accordingly, the issues which fatwās deal with can be generally conceptualized from two main perspectives: new medical developments that are prone to be solved by connection and deduction and those that are not. This is firstly contingent on the level of training of the jurist, the degree of his knowledge of the branches of jurisprudence, and his ability to perform deduction, and secondly upon the method of the jurist and his attitude toward the jurisprudential legacy, as previously stated.

Causes of Fatwā Variation on Medical Issues

There are many differences in fatwās on medical issues which, in addition to the above-mentioned reasons for divergence in approach and in the modern concept of ijtihād, can be attributed to the following:

Conception

The example to be cited here is the opinion of Muḥammad Ṣāliḥ Ibn al-ʿUthaymīn that cloning is “the biggest corruption on earth,” and that “the minimum punishment for those who invented cloning should be to cut off their hands from opposite sides” (Zain, 2005, p. 32). There is also the example of the denial of the Permanent Committee for Scholarly Research that anyone can determine the gender of the fetus, because “fecundation is a universal order about which the assignee can do nothing but execute it with God’s will,” and that people act out of “extreme ignorance and exaggeration in their esteem of modern science” (al-Fawzān, 2004, pp. 302–303).

Fiqh-inherent diversity

The fact that two muftis adopt the same approach does not preclude divergence at times, on account of the broadness of the jurisprudential views, encompassing both the branches of jurisprudence and the legal objectives and principles. The new issue might also be similar to two or more old jurisprudential principles which any two jurists would attribute to either one or the other, thus disagreeing on the ruling, as in the case of the establishment of milk banks. The Jiddah-based Academy in 1985 forbade establishing milk banks on account of the mingling of lineages and the confusion it would lead to, applying the general rules of preserving the purity of lineage and as an attempt to close loopholes. However, the European Council for Fatwa and Research (ECFR) issued a fatwā permitting the establishment and legitimate use of those banks, and stated that no prohibition would result from the use of their milk for the feeding babies. It explained that the reasons on which the Academy had based its prohibitive judgment had changed especially in the West where these milk banks are increasing and there is special need for Muslims to use them. It also argued that, as the milk of many mothers is mixed in these banks, there can be no information about the number of feeding sessions from one individual mother, as assumed in traditional fiqh. The precise origin of the milk used for a specific child cannot be determined and this makes it similar to what pre-modern jurists stated about those who suckle from an unidentified woman in a village (Journal of the Islamic Fiqh Academy, 1986, 2p. 424; Judayʾ, 2013, pp. 115–116).

Variation in the estimation of interest

The reason for divergence may also emanate from the difference in the estimation of the interest, as in the case of cosmetic surgery for example. The Permanent Committee for Scholarly Research in Saudi Arabia and ʿAbd al-ʿAzīz bin Bāz sanctioned cosmetic surgery if it fulfills an interest and if no harm results thereof. On the other hand, Muḥammad Ṣāliḥ Ibn al-ʿUthaymīn forbade recourse to cosmetic surgery “because it involves the act of changing God’s creation” (56/17). Here, the difference also may occur between the proponents of the same approach, when, for instance, the difficulty arises from the implications of the term “interest” (maṣlaḥa) which has three levels: necessity, need, and luxuries/embellishments. The majority permits these types of operations on the basis of necessity or need. Moreover, the prohibition of such types of operation is not because they imply something inherently evil. The problem, however, lies in the classification of the degree of interest. In other words, did the mufti who used the concept of “interest” as an argument actually mean all the three levels or not? The difference is, therefore, geared to the estimation of the degree of interest and to the considerations leading to that estimation.

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