One of the important reasons why the use of the term “Islamic law” as the English counterpart for sharīʿa is problematic has to do with the conceptualization of the relationship between law and ethics in Islam. In the modern period, the term “law” is often understood as positive, secular, or man-made law, which is developed within the social and political context of the nation state. This understanding often presumes that a significant distance between law and morality should be maintained. Although this issue has fueled an extensive jurisprudential debate in the modern period, and despite the considerable critique that legal positivism has occasionally been subjected to, it is considered one of the most important contributions of Western legal theory and practice.[1] Within sharīʿa, on the other hand, there has never been a hard and fast division between the realm of law or legal rules proper and that of morality, as Muslim jurists used to underscore the moral objectives behind the sharīʿa -based rules. In this regard, important differences are often highlighted to distinguish sharīʿa from modern law, which have to do with a range of historical as well as methodological considerations such as epistemology as well as scope. For example, while sharīʿa is believed to be of divine origin, state law, by definition, is presumed to be man-made. Moreover, while the scope of sharīʿa is much more comprehensive, since it covers purely religious or devotional dimensions, positive law is restricted to interpersonal interactions. This fluid and dynamic relationship between law and morality under sharīʿa can explain its ongoing relevance and potency in the modern period, long after it has either been relegated or significantly curtailed as a legal system in most Muslim-majority countries. Although it has ceased to function as the unchallenged source of official law, its appeal at the moral level has not diminished and this moral dimension may have even become more marked.
One of the important areas that reveal this moral dimension of sharīʿa is bioethics, which is the term used to refer to moral deliberations in medical research, healthcare, and biomedical technologies. While some researchers use bioethics as the modern equivalent of the classical discipline of medical ethics, others use it more broadly to cover other ecological and environmental concerns as well. The term itself emerged in the second half of the 20th century as an interdisciplinary field that draws on the findings of researchers across the natural sciences, humanities, and social sciences. Despite its relatively recent history, bioethics has generated a great deal of interest at the academic level and has also inspired different methodological approaches. While mainstream bioethics champions philosophical orientations and is often described as secular, other approaches to bioethics emphasize the role of religion or seek to analyze bioethical issues from the perspective of particular religious traditions such as Judaism, Catholicism, or Islam.[2] Considering the historical relationship between law and morality in sharīʿa and also the comprehensive scope of the Islamic legal corpus, bioethical discussions within the Muslim context often depend on Islamic juristic formulations as the most important resource for deliberations on the various bioethical issues such as the beginning of human life, organ donation and transplantation, and end of life concerns.[3] The dominance of this legal frame in Islamic bioethics is sometimes criticized by researchers who argue in favor of, for example, a greater role for: ethics beyond purely legalistic confines; empirical research by the social scientists; other perspectives, especially by different stakeholders and also in light of modern feminist scholarship.[4] These points are important and the past few decades have witnessed the emergence of an interdisciplinary Islamic discourse consisting of a diverse body of scholarship that utilizes a wide range of methodological approaches.[5]
This post focuses on the role of Islamic juristic formulations and how they continue to shape bioethical discussions within the Muslim context, mainly due to what I mentioned above about the historical role that sharīʿa played in the development of the Islamic legal system and also the implied ethical dimensions of Islamic legal rules. One of the important sources that are used consistently in bioethical discussions has been the fatwā literature and this is mainly due to the fact that most bioethical issues are new and unprecedented.[6] In most cases, fatwās on new bioethical issues utilize classical legal methods such as analogical reasoning or extrapolation from an exact or a close precedent, as is the case with discussions on organ donation or sex reassignment surgeries, which are usually placed within classical juristic discussions on the permissibility of cutting open the belly of a deceased person or on rules pertaining to the hermaphrodite or an intersex person.[7] More frequently, however, appeal is made to universal or specific legal canons (such as those related to harm, utility, or necessity).[8]
The establishment of juristic councils has represented a new development in the practice of Iftāʾ in the modern period. These councils include ones that operate within national settings as well as others that are transnational, especially the ones affiliated with major Islamic organizations such as the Organization of Islamic Cooperation and the Muslim World League.[9] Traditionally, fatwās have usually been issued individually by prominent and competent jurists, often conveying their own independent legal reasoning (ijtihād). These juristic councils have given rise to new forms of collective fatwās, representing a new mode of ijtihād. The main reason for the establishment of these councils has been the need to bring together jurists and specialists in different fields to weigh in on new and emerging issues, particularly in technical fields such as medicine. This in turn has raised questions about the extent to which this form of deliberation corresponds to the traditional practice of iftāʾ, and also the exact role of these different contributors. Moreover, they have also raised questions about the interface between law and science within sharīʿa.[10] Close analysis of these deliberations reveals that (Muslim) scientists are usually conscious of the boundaries they have to maintain and that they themselves admit their role in these deliberations as technical subject-matter experts. Ultimately, normative evaluations and conclusions are made exclusively by the jurists. This division of labor between the jurists and technical experts suggests that in these collective deliberations, the jurists assume a gatekeeping role, which may be compared to the role of judges in the pre-modern Islamic tradition or in the common law system.[11] In comparison, however, the role that the jurists assume in these deliberations is more advisory as compared to the official legal role of the pre-modern Muslim judge or the common law judge. Through this role, the jurists do not only sanction or legitimate new scientific procedures and applications, but they also delineate the necessary rules, conditions, and stipulations that should govern their implementation.[12] In the following two posts, I will elaborate more on this issue in light of two examples. The first is the evaluation of DNA evidence for paternity verification and the second is the legal status of surrogacy arrangements under Islamic law. The posts will give an overview of the broad lines of arguments, with a particular focus on the main sources/formulations that have shaped contemporary discussions on these issues.
Notes:
[1] See Luca Siliquini-Cinelli, ed., Legal Positivism in a Global and Transnational Age (Springer, 2019), 2.
[2] See Albert R. Jonsen, The Birth of Bioethics (Oxford: Oxford University Press, 1998); Robert M. Veatch and Laura K. Guidry-Grimes, The Basics of Bioethics, 4th ed. (New York: Routledge, 2020).
[3] Ayman Shabana, “Islamic law and Bioethics,” in Routledge Handbook of Islamic Law, ed. Khaled Abou El Fadl, Ahmad Atif Ahmad, and Said Fares Hassan (New York: Routledge, 2019), 112-124 and “Bioethics in Islamic Thought,” Religion Compass 8:11 (2014), 337-346.
[4] See, for example, Abdulaziz Sachedina, Islamic Biomedical Ethics (Oxford: Oxford University Press, 2009); Sherine Hamdy, Our Bodies Belong to God: Organ Transplants, Islam, and the Struggle for Human Dignity in Egypt (Berkley: University of California Press, 2012); Zahra Ayubi, Gendered Morality: Classical Islamic Ethics of the Self, Family, and Society (New York: Columbia University Press, 2019).
[5] Jonathan E. Brockopp and Thomas Eich, eds. Muslim Medical Ethics: From Theory to Practice (Columbia, SC: University of South Carolina Press, 2008).
[6] For more on the fatwā as a legal genre, see Muhammed Khalid Masud, Brinkley Messick, and David Powers, Islamic Legal Interpretation: Muftis and Their Fatwas (Cambridge, MA: Harvard University Press, 1996).
[7] On the permissibility of cutting open the belly of a deceased woman to extract a living baby or to extract a valuable item that a deceased person swallowed, see Ibn Qudāmah, al-Mughnī, 15 vols. (Riyadh: Dār ʿĀlam al-Kutub, 1997), 3: 497-99. For classical discussions on the intersex, see Ibn Qudāmah, al-Mughnī, 9:108-10. See also Sachedina, Islamic Biomedical Ethics, 173-194; Jakob Skovgaard-Petersen, Defining Islam for the Egyptian State: Muftis and Fatwas of the Dār al-Iftā (Leiden: Brill, 1997), 319-34. For more examples and how fatwās play an important role in related discussions, see Vardit Rispler-Chaim, Islamic Medical Ethics in the Twentieth Century (Leiden: Brill, 1993).
[8] In the genre of legal canons, reference is often made to five main or universal principles: matters are judged on the basis of intention; certainty cannot be overruled by doubt; difficulty begets ease; harm shall be removed; and custom should be considered. While these principles are often reiterated, several jurists point out that the exact number cannot be specified. Moreover, in addition to these general legal canons, the jurists often highlight several other (subject) specific legal canons. See, for example, al-Suyūṭī, al-Ashbāh wa al-Naẓāʾir fī Qawāʿid wa Furūʿ al-Shāfiʿiyyah (Cairo: Dār al-Salām, 2004), 61-64; and al-Zarkashī, al-Manthūr fī al-Qawāʿid, 3 vols. (Kuwait: Wizārat al-Awqāf al-Shuʾūn al-Islāmiyyah, 2012).
[9] See, Mohammed Ghaly, ed., Islamic Ethics and the Genome Question (Leiden: Brill, 2019).
[10] See, for example, Justin Stearns, “The Legal Status of Science in the Muslim World in the Early Modern Period: An Initial Consideration of Fatwās from Three Maghribī Sources,” in The Islamic Scholarly Tradition: Studies in History, Law, and Thought in Honor of Professor Michael Allan Cook (Leiden: Brill, 2011), 265-90.
[11] See, for example, David E. Bernstein and Jeffrey D. Jackson, “The Daubert Trilogy in the States,” Jurimetrics 44:3 (2004), 351-66.
[12] See Ayman Shabana, “Interface between Islamic Law and Science: Legal Construction of Science in Light of Islamic Bioethical Discourses on Genetic and Reproductive Technologies,” in Islam and Biomedicine, ed. Afifi al-Akiti and Aasim Padela (Springer, forthcoming).
Suggested Bluebook citation: Ayman Shabana, Islamic Law, (Bio)ethics, and Ethical Gatekeeping of Science, Islamic Law Blog (June 24, 2021), https://islamiclaw.blog/2021/06/24/islamic-law-bioethics-and-ethical-gatekeeping-of-science/)
(Suggested Chicago citation: Ayman Shabana, “Islamic Law, (Bio)ethics, and Ethical Gatekeeping of Science,” Islamic Law Blog, June 24, 2021, https://islamiclaw.blog/2021/06/24/islamic-law-bioethics-and-ethical-gatekeeping-of-science/)