The Principles of “Nonmaleficence” and “Beneficence” in Islamic Context

1

Mohammad Syifa Amin Widigdo

Indiana University, Bloomington, IN

[email protected]

The Principles of “Nonmaleficence” and “Beneficence” in Islamic Context

(An Analysis of Moral Reasoning and its Principles in Islamic Biomedical Ethics)

A contribution of Islamic perspectives to bioethics is limited. This is mainly because of

the dearth of serious engagement of contemporary scholars of Islam in this field. Although some

scholars of Islam have already dealt with the issues of medical ethics for centuries,1 they usually

discussed them under the umbrella of Islamic law, which is in fact remote from contemporary

bioethical discourses. The Islamic world therefore has limited to say to modern bioethical

debates. Moreover, Muslim physicians who are well trained in bioethical disciplines lack

knowledge in Islamic studies. In turn, they are unable to introduce a kind of Islamic moral

reasoning to the realm of bioethics.

However, there are Muslim physicians and a few scholars of Islam who attempt to

engage in contemporary biomedical discourse. Among them are Fazlur Rahman, Vardit Rispler-

Chaim, and Farhat Moazam. Fazlur Rahman elaborates the historical and philosophical aspects

of Islamic medical tradition in his work, Health and Medicine in the Islamic Tradition (1987).

Vardit Rispler-Chaim analyses a wide range of Islamic scholars’ legal rulings on medical-

controversial topics in his book, Islamic Medical Ethics in the Twentieth Century (1993).

Unfortunately, none of them is well informed or trained in the bioethics; therefore, dialogue

between their works and Western bioethical discourses is lacking.

1 In the middle Ages, ther are several authors who wrote on Islamic medical ethics ranging from al-Ruhāwī, al-

Ṭabarī, al-Majūsī, Ibn Riḍwān al-Baghdādī, to Ibn Abī Uṣaybi‘a. See Vardit Rispler-Chaim, Islamic Medical Ethics

In the Twentieth Century, (Leiden-New York-Koln: E.J. Brill, 1993), 2.

2

Farhat Moazam, a Muslim scholar-physician and well trained in Western bioethics, is

well-poised to initiate a dialogue between Islamic scholarship and modern bioethics.

Nevertheless, her work Bioethics and Organ Transplantation in a Muslim Society (2006) does

not elaborate a sophisticated Islamic moral reasoning which actually corresponds with the

principles of modern bioethics. As a result, the Western medical ethical tradition is still foreign

to Islamic biomedical ethics while Islamic moral reasoning is also unknown in modern Western

bioethics.

The question arises whether Islamic moral reasoning is compatible with the existing

Western bioethical principles. If it is, how does it correspond with such contemporary bioethical

principles and deal with certain bioethical issues? If it is not, then what is the peculiarity of the

Islamic reasoning compared to the Western bioethics? This paper will be devoted to an

exploration of these questions. In fact, I believe that the principles of “no harm and no distress”

(lā ḍarara wa lā ḍirār) and “promoting public interest or common good” (maṣlaḥa) to some

extent correspond to certain principles of modern bioethics, especially nonmaleficence and

beneficence -- although there are some aspects which make the former principles different from

the later.

Moral Reasoning

Before examining the compatibility of Islamic moral reasoning with its Western

counterpart, it is necessary to elucidate briefly a general picture of moral reasoning in Islamic

tradition. There are two major religious sciences (al-ʻulūm al-naqlīya) that contribute to the

development of the ethical discussion; theology (kalām) and jurisprudence (fiqh). These religious

sciences discuss ethical issues mainly on the basis of religious texts, Qur’an and Hadith (the

Prophetic tradition). Rational sciences (a-ʻulūm al-ʻaqlīya) such as philosophy and Sufism which

3

develop ethical theories as well are deemed less Islamic by ḥadīth scholars and legal minded-

scholar because of their extraneous influences and connections with Greek, Indian, or Persian

thought.2 Therefore, the term “Islamic” here is used to refer to a kind of moral reasoning which

is based on the Qur’an and the Sunna. In this regard, theology and jurisprudence are deemed

more Islamic than other rational sciences by Muslim theologians (mutakallimūn) and jusrists

(fuqahā’).

Muslim theologians and jurists divide value of human actions into five categories: (a).

obligatory (wājib), (b) prohibited (mahẓūr), (c) recommended (mandūb), (d) reprehensible

(makrūh), and (e) permissible (mubāḥ). Obligatory means God has commanded as a matter of

necessity in such a way that its omission is a sin deserving of punishment and its commission is

praiseworthy and deserving of reward. Prohibition means God has prohibited it in such a way

that its perpetration will be punished. Recommended denotes an intermediate moral value;

whoever performs it will be rewarded, but whoever omits it will not be punished. Reprehensible

is the action omission of which is rewarded whereas its commission is left unpunished. Finally,

permissible is not an object of reward and punishment at all.3 However, Muslims disagree about

whether reason or sacred texts determine the values of human actions. The rationalist camps of

Islamic theology maintain that reason is a kind of revelation which enables a person to

differentiate the good from the bad. In fact, the sacred text can only be understood by means of

reason. Many Muslims are apt to believe that reason is able to determine value for responsible

agents. The traditionalist camps perceive that reason is inferior in comparison with the sacred

text (revelation). They reject the idea that reason is a sort of revelation. The only source that can

2 Majid Fakhry, Ethical Theories in Islam, (Leiden-NewYork-Koln: E.J. Brill, 1994), 1-8.

3 Ibid, 48-49.

4

determine whether human actions are praiseworthy or blameworthy is the revelation, the sacred

text.

In the case of matters in which the sacred text is silent, such as controversial issues in

bioethics, both camps may have different opinions. The first camp would say that human reason

could assess whether, for example, organ transplantation or genetic modification is allowed or

not, whereas the second camp would seek more literal arguments from the revelation to judge

ethical status of those practices. Nevertheless, none of them develop logical principles regarding

how the status of human actions can be assessed. In other words, the rationalists do not suggest

adequate ethical measures by which we know good and bad in an objective way. Similarly, the

traditionalists do not provide a reliable method of interpretation by which revelation can be used

for assessing human acts. They rely too much on jadal (dialectical disputation)4 and analogy

(qiyās)5 as common theologians’ means in order to reach certain conclusions. The jadal and the

qiyās of Muslim theologians in fact do not render ethical principles by which human practical

decisions can be derived.

Muslim theologians usually carry out speculative reasoning and theological debates in

order to establish and assess ethical status of certain beliefs or theological tenets. This program

operates in the realm of human cognition, not in the realm of human practices. Muslim jurists

(fuqahā’), however, employ series of legal principles to determine ethical and legal status of

human daily practices. In spite of their notable differences, both camps actually use qiyās as the

4 Jadal literally means “debate” or “disputation”. It is usually used in the forms of questions and answers in the aims

of defeating the opponent of the debates.

5 Qiyās in theology (kalām) is speculative reasoning by analogy. It indicates the syllogistic procedure which consists

in induction from the known to the unknown (qiyās al-ghā’ib ʻala al-shāhid).

5

main mode of reasoning in their works, and they assess value of human beliefs or practices based

on those five categories; obligation, prohibition, recommendation, reprehension, and permission.

The jurists in fact move further into discussions of practical morality by issuing legal-religious

recommendations (tawṣiya) and rulings (fatwā). Interestingly, these religious recommendations

and rulings are not produced merely by referring to the Qur’an and the Prophetic Tradition

(Hadith), but also through applying certain sophisticated legal-moral reasoning and principles.

Especially in the case when a judgment from the Qur’an and the Tradition is metaphorical,

ambiguous, or even absent, Islamic jurists employ legal-moral logical methods to determine

whether certain cases are considered obligatory, prohibited, recommended, reprehended, or

permitted. Among the most popular juristic moral reasoning are: qiyās (judicial analogy),

istiḥsān (legal preference in the aims of promoting common good), and istiṣlāḥ (legal discretion

based on public interest).

In Islamic law, qiyās is a sort of deductive reasoning that is centered on the principle of

analogy. In the case of matters in which the judicial judgment of texts (revelation) is absent,

Islamic jurists seek an analogous case, a precedent, in which revelation has a clear verdict. The

analogy in the realm of Islamic law, according to Nabil Shehaby (1982), has two forms. First, the

analogy that is based on maʽnā (reason) is shared by two cases. God or Prophet may prohibit or

allow something for a maʽnā, a reason. If we find the same ma‘nā in another case that is not

treated in the legal sources, the judicial judgment covering the first can be extended and applied

to the second.6 For example, there is no explicit legal judgment made by revelation regarding the

use of marijuana. The text only says that khamr (a kind of wine) is prohibited because it renders

6 Nabil Shehaby, “ Illa and Qiyās in Early Islamic Legal Theory,” Journal of the American Oriental Society 102.1

(1982), 33.

6

intoxication. In other words, the reason (maʽnā) for the prohibition is intoxication. The legal

judgment of the khamr can be applied and extended to marijuana based on the maʽnā (reason)

that both have a similar effect, i.e. intoxication. Thus, if drinking a wine is prohibited, consuming

marijuana is also forbidden because both of them cause intoxication. Second is the analogy that

is based on resemblances (ashbāh).7 This is employed when the case that is not treated in the

authoritative legal sources resembles other cases that are treated by either the Qur’an or the

Hadith. In this situation, the case under examination acquires the judicial judgment of the case

that is the most similar to it.8 For example, there is no definite legal ruling from Qur’an or Hadith

on the issue of renting an orchard (along with the trees and unripe fruits on the orchard). The

existing legal ruling addresses the case of renting a land, which is permitted, and the case of

purchasing unripe fruits, which is prohibited based on a sound hadith. For an Islamic jurist like

Ibn Taymīya, the rent of the orchard has some aspects of resemblance with the rent of land and

with the purchase of unripe fruits. The orchard rental is similar to the land rental in a sense that

both have an element of land and the tenant himself is responsible for caring the crop in each of

them. The rent of the orchard has also a resemblance to purchasing (or selling) the unripe fruits

since there are trees along with their unripe fruits on the orchard. Ibn Taymīya’s view, the

resemblance of renting the orchard to renting land is stronger than the resemblance to the

7 Muḥammad b. Idrīs al-Shāfiʻī, Al-Risāla, edited by Abd ar-Raḥmān Mahdīy, (Egypt: Shirka Maktaba wa Maṭbaʻa

Musṭafā al-Bānī al-Ḥalbī wa Awlāduh, 1940), 479.

8 Ibid, 33.

7

purchase of unripe fruits. Therefore, the legal ruling of renting the orchard is permissible just like

the ruling of the land rental, and not following the ruling of unripe fruits purchase.9

Another kind of legal-moral reasoning is istiḥsān. This reasoning is actually a kind of

qiyās, but in broader sense. This reasoning allows formulating a decision that sidesteps a

precedent judgment established by qiyās in order to meet “the objectives of the Revelation,”

which are primarily to protect people’s integrity and belongings while making their lives easier.10

This methodology is founded upon an important principle derived from the directive of

“circumventing hardship” stated in the Qur’an: “God intends facility for you, and He does not

want to put you in hardship” (2: 185). This directive is also further reinforced by the hadith that

states: “The best of your law is that which brings ease to the people.”11

Practically speaking,

when scriptural sources say nothing about a particular issue, istiḥsān takes into account the social

and human context without denying the necessary relation to a scriptural text. Customary

practices (al-ʻurf), avoiding hardship, and necessity (ḍarūra), and even public interest (maṣlaḥa)

are in turn regarded as sources of legal judgment besides the necessary adherence to the

teachings of the established religious texts.12

Islamic jurists can choose one of those legal

considerations based on their preference in issuing certain religious rulings. In a sense, this

9 Robert Gleave and Eugenia Kermeli (ed.), Islamic Law: Theory and Practice, (New York: I.B. Tauris, 2001), 127-

128.

10 Tariq Ramadan, Radical Reform: Islamic Ethics and Liberation, (New York: Oxford University Press, 2009), 56.

11 Abdul Aziz Sachedina, No Harm, No Harassment: Major Principles of Health Care Ethics in Islam, in Handbook

of Bioethics and Religion , edited by David E. Guinn, (New York: Oxford University Press, 2006), 275.

12 Muhammad Hashim Kamali, Principles of Islamic Jurisprudence, (Cambridge: Islamic Text Society, 1991), 253.

8

method is much more inductive compared to qiyās by virtue of considering human customs and

habits among sources of the Islamic law.

The other widely used judicial-moral reasoning is istiṣlāḥ. Literally, it means seeking a

common good or public interest (maṣlaḥa). Compared the above legal reasoning, istiṣlāḥ is much

more linked with the context than to the text. Therefore, when the text does not provide an

explicit legal opinion on certain cases, the main consideration for issuing religious legal opinions

is “what is the good for the public”. However, what are the things that are called as “the good for

the public”? In al-Mustaṣfā min ʻIlm al-Uṣūl, Imam al-Ghazālī (d. 1111) writes:

“In essential significance, al-maṣlaḥa is a term to denote something useful (manfaʻa) or

warding off something harmful (maḍarra). But this is not what we mean, because seeking what

is useful and preventing harm are objectives sought by creation, and the good in the creation of

mankind consists in achieving those objectives (maqāṣid). What we mean by maṣlaḥa is

preserving the objective of the divine law (sharʻ) that consists in five essentials: preserving

religion (dīn), life (nafs), reason (ʻaql), progeny (nasl), and property (amwāl). What ensures the

preservation of those five principles is maṣlaḥa (translated as: common good, public interest);

what goes against their preservation is mafsada (harm), and preventing it is maṣlaḥa”.13

In other words, what is considered “public interest” or “the good for the people”

(maṣlaḥa) here is the preservation of the objectives of the divine law (maqasid as-sharià) which

are: preserving religion (dīn), life (nafs), reason (ʻaql), progeny (nasl), and property (amwāl).

The other Islamic scholars14

, however, add the necessary protection of human dignity (ʻirḍ) into

13

Ramadan, Radical Reform , 62.

14 Among them are Shihāb ad-Dīn al Qarrāfī (d. 1285), Najm al-Dīn at-Ṭūfī (d. 1386), Taj ad-Dīn b. as-Subkī (d.

1369), and sometimes Abū Isḥāq as-Shāṭibī (d. 1388).

9

those objectives of sharīʻa. These objectives are in fact extracted by Islamic jurists through the

process of reflective discretion on all sayings stated by God and the dynamics of human

experiences in certain socio-cultural contexts. For Islamic legal scholars, the intent of God in His

commands and prohibitions is clear, that is: “to promote good and to benefit human beings and

to protect them from evil, from harm, and from subsequent suffering”.15

In sum, there are three widely legal-moral logics that are harnessed by Islamic jurists

before they come up with certain moral principles and religious legal rulings (fatwā): analogy

(qiyās), legal preference (istiḥsān), and promoting common good or public interests (istiṣlāḥ). In

this regard, it is true that the result of these legal-moral logics is usually expressed under the five

categories; whether obligatory, prohibited, recommended, reprehended, or permitted. However,

in addition to the legal rulings, Islamic jurists also formulate and derive moral principles from

those legal-moral logics. These moral principles in fact operate as guidance for Islamic jurists in

issuing religious legal recommendations and opinions. Among those principles that result from

qiyās reasoning one finds: (a) “one needs certainty” and (b) “action depends upon intention”.

Others stem from Istiḥsān: (c) “necessity makes lawful that which is prohibited, as long as it

does not lead to any detriment”, (d) “hardship necessitates relief”, and (e) “custom determines

course of action”. The rest of the principles are derived from istiṣlāḥ method are: (f) where it is

inevitable, the lesser of the two harms should be done”, (g) no harm shall be inflicted or

reciprocated”, (h) “No harm, no harassment”, (i) “harm must be rejected”, (j) “preventing or

removing harm has priority over promoting good”.

Based on the above principles, Islamic jurists are expected to respond to the situations

that arise in medical practices or other cases in which the scriptural sources are silent. The

15

Tariq Ramadan, Radical Reform , 67.

10

following discussion indeed will assess and to some extent compare the compatibility of those

Islamic legal moral principles with modern bioethical principles. This comparison is warranted

because Islamic bioethics actually is “an extension of Sharīʻa”16

which generates certain moral

and legal principles. My purpose here is not merely to search for Islamic equivalents of Western

bioethical principles because those principles have their own context; Western-American values

of individualism, empirical science, and often principle-based ethics. Instead, beyond what has

been done by Abdul Aziz Sachedina (2006) 17

, I want to make a strong case for analogous

principles within Muslim culture that are operative within Muslim social-cultural contexts in

assessing moral problems in Islamic biomedical ethics. In this regard, among the four principles

that are widely used in Western biomedical ethics18, I will use the principle of “non-

maleficenece” and “beneficence” but will exclude “the respect for autonomy” and “justice” for

the purpose of comparison. By so doing, the comparison is expected to render a mutual dialogue

between the two traditions. In my discussion, I will not impose one set of ideals to another and

vise versa, so a mutual respect between the two traditions can prevail.

Nonmaleficence =“Lā Ḍarar”?

“Above all, do no harm (Primim non nocere).”19

This is a maxim that was inherited from

Hippocratic medical tradition which is associated with the principle of nonmaleficence. “Not

16

Yeldham, “Islamic Medical Ethics and the Straight Path of God”, 214.

17 Sachedina, No Harm, No Harassment, 267.

18 The Western medical principles which were introduced by Tom L. Beauchamp and James F. Childress consist

four rules: the respect for autonomy, non-maleficence, beneficence, and justice. See Tom L. Beauchamp and James

F. Childress, Principles of Biomedical Ethics (6th

ed.), (New York: Oxford University Press, 2009), 99-287

19 Beauchamp and Childress, Principles of Biomedical Ethics, 149.

11

inflicting harm” in fact is a basic ethical principle shared by Western and Islamic medical culture

regardless some distinctive aspects in each of them. In modern medical tradition, Beauchamp

and Childress call the idea of “not inflicting evil or harm” the principle of nonmaleficence.20

However, the concept of “harm” is actually a contested notion, whether it refers to

physical or includes non-physical harms as well. Although mental harms and setbacks of one’s

interests are taken into consideration, the concept of “harm” in Beauchamp’s and Childress’s

book emphasizes more on bodily harms, ranging from physical pain, disability, suffering, to

death. They particularly designate the concept of “harm” to a notion of “intending, causing, and

permitting death or the risk of death.”21

One example that renders “harm” in this regard is

negligence, which is defined as an intentional or unintentional failure of due care that imposes

risks of harm.22

The principle of nonmaleficence in modern medical tradition becomes a very important

principle since it can override other principles, especially principle of beneficence, in some

circumstances. 23

One principle may also override another principle in some specific situations

based on prima facie rules. In Islamic contexts, although Islamic physicians in medieval period

were already familiar with Hippocratic Oath and other works,24

the idea of “do no harm” in

Islamic bioethics is much more inspired by Islamic jurists rather than their counterparts,

20

Ibid.

21 Ibid, 152-153.

22 Ibid, 154-155.

23 Ibid, 150.

24 Franz Rosenthal, An Ancient Commentary on the Hippocratic Oath, an article in Science and Medicine in Islam,

Great Britain: Voriorum, 1990), 52-87.

12

especially philosophers or physicians. Islamic legal scholars base the principle of “do no harm”

on Prophetic tradition which states, “Lā Ḍarar Wa Lā Dirār fil-Islām (In Islam, there shall be no

harm inflicted nor reciprocated).”25

Based on this saying, they set Islamic biomedical ethics on

the principle called “No Harm, No Harassment.”26

For a practical reason, however, I use the term

“Lā Ḍarar ” to refer to the idea of such “no harm shall be inflicted or reciprocated”27

and its

derivative principles. In other words, what is called nonmaleficence in Western medical tradition

is Lā Ḍarar in Islamic contexts.

The principle of Lā Ḍarar in Islamic bioethics is very important, just like its Western

counterpart. According to Abdul Aziz Sachedina, in almost 90 percent of cases confronting

health care providers in the Muslim world, the issue of inflicting or reciprocating harm is at the

heart of the ethical deliberations.28

In comparison to the principle of promoting common good or

public interest, obligation of avoiding harm has a higher priority. There is an Islamic moral

principle says: “Removing harm has priority over promoting good (Dar’u al-mafāsid muqaddam

ʻalā jalbi al-masalih)”. This principle indeed resembles the tenet of secular bioethics which also

states “obligations of nonmaleficence are more stringent than obligations of beneficence, even if

the best utilitarian outcome would be obtained by acting beneficently.”29

25

Sachedina, No Harm, No Harassment, 275.

26 Ibid, 280-286.

27 In Arabic world, there are many derivative and synonymous terms which are used for signifying the idea of harm,

such as: madarra, ḍarar, usr, mafsada, or mafāsid. In the discussion of medical ethics, these terms can be used

interchangeably.



13

However, what does “harm” mean to Muslim legal scholars? The majority of Muslim

jurists might argue that God is the one who can determine something harmful. Nevertheless, if

revelation or the Prophetic tradition does not provide a clear evidence of the parameters of harm

in certain cases, the jurists come up with various opinions. The result of the ruling depends on

the arguments that Islamic legal scholars use. When the jurists employ qiyās reasoning, they will

try to find a similar case which is already treated by revelation or the Prophetic tradition. For

example, causing harm to a human body is prohibited based on the Prophetic tradition that says,

“Breaking the bone of the dead is equal to breaking a bone of a living person”.30

According to

qiyās (analogy) argument, the legal judgment of inflicting harm to the body can be applied to the

question of organ donation. If the former is forbidden, the latter is proscribed as well. The ruling

based on a mere qiyās, however, can be complemented, or even ruled out by other kind of

arguments which use a broader perspective.

If the perspective of istiḥsān is used, the definition of “inflicting harm” will also consider

what is called al-ʻurf (custom or situation). For the proponents of istiḥsān, the custom is

considered a reliable source in determining the parameters of harm. Custom also establishes

whether harm to oneself or to another party has been done in a given situation. If custom regards

as harmful something for which revelation offers no specific evidence against, the harm in that

context is determined “by the situation.” 31

In this regard, the definition of harm might vary

depending on particular circumstances and contexts. For instance, in the case of organ donation,

Islamic scholars seem to agree that “inflicting harm to the body” (taking an organ from the

30

This Prophetic tradition narrated by Abu Daud. See Abul Fadl Mohsin Ibrahim, “The Shariàh View Point on

Organ Transplantation”, Journal of the Centre for Islamic Research 9, (1989-01-01), 79.


14

donor) is permissible under certain circumstances in order to avoid the greater harm (i.e. death of

the recipient). They cite the principle which states, “Where it is inevitable, the lesser of the two

harms should be done” or “necessity makes lawful that which is prohibited, as long as it does not

lead to any detriment.” However, if the act of organ donation is highly suspected to cause death

to the donor, then such act is forbidden (haram). In this light, the definition of “harm” is defined

not only by the physician, the family, and other involved parties, but also by the availability of a

safe and reliable medical technology.

Another possibility to define harm is through istiṣlāḥ moral reasoning. By means of

istiṣlāḥ, “harm” is perceived as a failure to protect the primary objectives of religion: preserving

religion (dīn), life (nafs), reason (ʻaql), progeny (nasl), and property (amwāl), and some add

“human dignity” (ʻirḍ). Al-Ghazaly (d. 1111) points out that the ability to preserve those primary

objectives renders an action maṣlaḥa (common good, benefit) whereas inability to protect them

is considered as mafsada (a source of harm).32

Thus, whoever violates someone’s religion, life,

intellect, progeny, property, or honor is regarded as inflicting harm. In fact, according to Muslim

thinkers, the necessity to safeguard these essentials of religion is felt across traditions among the

followers of other religions too.33

Again, in the case of organ transplantation, letting someone die

because of not receiving a kidney donation from the donor is deemed inflicting harm, and hence

forbidden (mahẓūr). The moral status of seeking a kidney donation for the one who is in need

therefore is not only permissible (mubāḥ), but also obligatory (wājib).

The definition of “inflicting harm,” based on the qiyās, istiḥsān, and istiṣlāḥ

methodological reasoning, actually signifies not only the necessity of not rendering harm to

32

Ramadan, Radical Reform , 62.


15

physical body and psychological welfare, but also to spiritual well-being. On the one hand, one is

supposed to make a good relationship with fellow human beings by protecting what is viewed as

the essentials of human needs. On the other hand, he/she should also preserve the God-human

relationship through complying with the messages of revelation and the Prophetic tradition.

Although an obligation to “not inflict harm” intentionally has been closely associated in

Muslim social ethics with the obligation to promote common good (maṣlaḥa), I disagree with

Abdul Aziz Sachedina and those who conceive that the principle of nonmaleficence and

beneficence in Islamic context can be summarized in one principle, istiṣlāḥ (promoting good,

maṣlaḥa).34

In the context of istiṣlāḥ, for example, ‘inflicting harm’ would be perceived in light

of a failure to fulfill human essential needs or a failure to meet the objective of the divine law

(Sharīʻa). The fulfillment of the essential needs and the objectives of Shariʻa is considered

‘good.’

This idea of “not inflicting harm” also exists in qiyās and istiḥsān just like istiṣlāḥ moral

reasoning although each has its own definition of what “harm” means. Qiyās perceives harm or

evil as “violating against the teachings of revelation and the Prophetic tradition.” The “good” for

qiyās is an adherence to such divine teachings. Istiḥsān would perceive “harm” as “rendering

hardship and disregarding wisdom of human custom” and the “good” in this context would be

what renders easiness and respecting customary wisdom.

Beneficence = “Maṣlaḥa”?

Besides preventing the occurrence of harm, moral decision making must also seek to

attain certain benefits. In the modern Western medical tradition, this notion is represented in the

34

Sachedina, No Harm, No Harassment, 285.

16

principle of beneficence. According to Beauchamp and Childress, the term “beneficence”

connotes acts of mercy, kindness, and charity and includes the notion of altruism, love, and

humanity as well. In a specific context of modern bioethical discourse, the principle of

beneficence is defined as “a statement of moral obligation to act for the benefit of others”.35

The

action is in fact usually performed by an individual to give benefit to another individual based on

either a spirit of altruism or a moral obligation. The act of beneficence which is motivated by

altruism or an extreme generosity is regarded an ideal or general beneficence, whereas the one

which is motivated by mere moral obligation is called obligatory of specific beneficence. The

prevalent practice of the principle of beneficence, however, is the beneficence which is tied to

certain moral obligations because the ideal is viewed as “too high standard”.36

Besides positive

beneficence which requires agents to provide benefits to others, there is also aspect of utility in

the principle of beneficence. Utility requires that agents balance the benefits, risks, and costs to

produce the best overall results.37

The analogous principle that exists in Islamic contexts is the concept of maṣlaḥa.

Literally, maṣlaḥa means “benefit” or “interest”. It is also synonymous with istiṣlāḥ because the

two terms have a same language root, namely ṣalaḥa, promoting good. Terminologically

speaking, the maṣlaḥa can be defined as “a principle of reasoning to derive new rulings or as

method of suspending earlier rulings out of consideration for the interest and welfare of the

community”.38

It is quite clear from this definition that the notion “beneficence” in the Western

35

Beauchamp and Childress, Principles of Biomedical Ethics, 197.

36 Ibid, 201.

37 Ibid, 197.


17

tradition resembles the idea of maṣlaḥa of Islam in terms of the importance of giving benefit for

others. The motive of giving benefit is also quite similar. In the principle of maṣlaḥa, although

an extreme generosity (ikhlaṣ) sometimes becomes the motive of giving benefit to others, the

primary motive underlining such action is still a moral obligation. There are many terms used to

depict such obligations such as sacrifice (qurbānī), duty (farḍ), love (maḥabba), and necessity

(majbūrī).39

Nevertheless, there is a salient peculiarity in each notion regarding the recipients of

the intended benefit. In the principle of maṣlaḥa, the recipient of benefit seems to be more

general than in the principle of beneficence, in the sense that the maṣlaḥa requires securing

benefit to the people as a whole and not particular person or groups of person.40

For example,

donating a kidney to a family member in Pakistan is deemed “a sacrifice (qurbānī)” which aims

to secure not only the life of the recipient but also the survival of the family.41

That is why the

maṣlaḥa is usually translated as public interest or common good as opposed to the notion of an

individual interest.

In this respect, Islamic scholars conceptualize three types of maṣlaḥa (public interest) by

means of which the degrees of its urgency can be recognized. The first is called the essentials

(ḍarūrīyāt) which consist of six essential values that should be promoted: protection of religion,

life, intellect, lineage, property, and human dignity.42

These must not only be promoted but also

39

Farhat Moazam, Bioethics and Organ Transplantation in Muslim Society: A Study in Culture, Ethnography, and

Religion, (Bloomington: Indiana University Press, 2006), 218.

40 Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, (Cambridge: Islamic Text Society, 1991), 274.

41 Moazam, Bioethics and Organ Transplantation in Muslim Society , 218.

42 Hamza Yusuf Hanson, Principles of Islamic Bioethics, in Caring for Muslim Patients (Edited by Aziz Sheikh and

Abdul Rashid Gatrad), (Oxford-New York: Radcliffe Publishing, 2008), 47.

18

protected from any real or unexpected threat that undermines their safety. Many of the religious

obligations and prohibitions are in fact aimed to preserve these essentials. For instance,

prohibition of forcing religion to others is to protect religion itself, or the prohibition of

intoxicants is to preserve sanity and intellect. These essentials furthermore become the very basic

criteria of the fulfillment of the maṣlaḥa. Any moral decision that meets such criteria will be

considered promoting public interest whereas that which does not meet them will be viewed as

inflicting harm, mafsada. In practice, there might be a conflict between those essentials. The way

that Islamic jurists deal with such a conflict is to employ the judicial principle which states:

“where it is inevitable, the lesser of the two harms should be done”. In the case of organ

transplantation, for instance, taking a kidney from one’s body is “harm” because violating the

sanctity of human body (human dignity). Not undergoing organ transplantation for a kidney-

failure patient is also “harm” because disease threatens his life. Based on the above mentioned

principle, the lesser harm (taking kidney from human living or dead body) should be done in

order to avoid the greater harm (the death of the patient).

The second kind of maṣlaḥa is labeled as the complementary (ḥājjīyāt) which functions

as a supplement to the above essential values and also refers to interests whose neglect leads to

hardship in the life of the community (although not to its collapse).43

In the classical Islamic law,

this complementary public interest might refer to applying concessions (rukhṣa) to a sick person

or traveler in performing religious rituals. Sick persons are granted dispensation; for example, in

the forms of permissibility of not doing fasting during Ramadan (a month in which Muslims is

obliged to fast). Similarly, the enjoyment of foods, beverages, traveling, and other mundane

activities are encouraged as far as they are complementary to the main objectives of protecting

43

Kamali, Principles of Islamic Jurisprudence, 272.

19

life and intellect. A legal Islamic principle in this regard says: “The origin (asl) of a thing is

permissible, unless there is a text (from Quran, Sunna or scholarly consensus) that prohibits it.”

In the context of biomedical ethics, whatever is considered as supporting a means to embody the

primary public interest would be the complementary, such as: providing adequate medical

equipments and laboratories in the hospital, providing good medical professionals, equipping

nurses and physicians with bioethical values, or implementing vaccination program and health

education. These complementary maṣlaḥa might embrace what Beauchamp and Childress calls

“concerted social actions of beneficence” in secular bioethics. 44

The third type of maṣlaḥa is termed as embellishments (taḥsīnīyāt). Mohammad Hashim

Kamali defines this maṣlaḥa as “interests whose realization leads to improvement and attainment

of that which is desirable.”45

If Beauchamp and Childress have an ideal type of beneficence, the

tahsīnīyāt can be viewed in that way. It is an ideal because the fulfillment of the embellishments

makes a certain moral action more perfect. Indeed, some Islamic scholars like Imām as-Shātibī

name this type of maṣlaḥa “noble virtues”.

Although these virtues might be not qualified as “the essentials,” their goal is to improve

the quality of life, to make the essentials easily accessible to average member of society, and

even to embellish the noble virtues in order to render them more desirable.46

The prevalent

example cited in the classical Islamic law is ranging from personal cleanliness during performing

prayer, avoiding extravagance in consumption, to moderation in the enforcement of penalties. In

the realm of biomedical ethics, the tahsīnīyāt can be extended to the availability of physicians

44

Kamali, Principles of Islamic Jurisprudence, 205

45 Kamali, Principles of Islamic Jurisprudence, 272.


20

and medical professionals who are aware of cultural or religious diversity, free-cost treatment for

the poor, or a good environment that support a healthy life, and so forth.

Harm and Benefit: When Principles Are in Conflict.

In addition, when the two principles are in conflict, secular bioethics harnesses the

method of balancing to determine a justifiable action. The principle(s) that has more weight or

strength in its (their) ethical value takes precedence over the less strong principles. This idea of

balancing is frequently associated with principles or norms as “prima facie binding,” 47

in which

a certain principle or norm should be fulfilled unless there is a conflict with an equal or stronger

principle or norm. For example, James F. Childress writes, “The principle of nonmaleficence

(not inflicting harm) takes precedence over the principle beneficence (producing benefit) when

the two come in conflict.”48

In the spirit of balancing method, the principle of nonmaleficence

can be overridden by the principle of beneficence when they are in conflict because the latter

principle is deemed more stringent and having more weight than the former. This line of

argument is different from the idea of specification which concerns with the scope and range in

terms of the application of principles to particular cases. The method of (weighting and)

balancing focuses more on the weight or strength of certain ethical principles or norms when

they are in conflict.

There is a way of resolving two conflicting judicial rules in the Islamic tradition which is

analogous to one method of secular bioethics. Nevertheless, the Islamic method is much more

inspired by religious text (Quran) which states: “They ask thee concerning wine and gambling.

47

James F. Childress, Moral Norms in Practical Ethical Reflection, in Lisa Sowle Cahill and James F. Childress

(ed.), Christian Ethics: Problems and Prospects, (Ohio: The Pilgrim Press, 1996), 210.

48 Ibid, 211.

21

Say: ‘In them, there is great sin (harm), and some profit (benefit), for men; but the sin (harm) is

greater than the profit (benefit).’ They ask thee how much they are to spend; Say: ‘What is

beyond your needs.’ Thus doth Allah Make clear to you His Signs: In order that ye may

consider.”49

The above-mentioned verse clearly addresses the issue of weighing and balancing

between a possible harm and benefit in the case of drinking wine and gambling. On the basis of

this reasoning, Islamic jurists conceptualize Islamic legal maxims anticipating the conflict either

between two interests, between preventing harm and gaining benefits, between two harms, or

between prohibition and permission in a specific circumstance.

First, when two interests conflict with each other, Islamic jurists rely on the following

judicial rule: “When two interests conflict, let the one which will bring greater benefit take

precedent”. Second, if the conflict is between avoiding harm and gaining benefit, the judicial rule

says, “Removing harm has priority over promoting good (benefit)”. Third, when there are two

unavoidable harms, the Islamic jurists have a judicial principle which states, “Where it is

inevitable, the lesser of the two harms should be done”. Fourth, if a general moral judgment

stipulates the prohibition of certain actions, there are circumstances that can override such

prohibition. In this light, the judicial tradition formulates a principle, “Necessity renders the

prohibited permissible”

The practical operation of those principles might be clearer when they are used to analyze

a specific case, such as organ transplantation. Basically, the human body in Islam is viewed as a

sacred, trustee (amāna) of God, and a part of human dignity. In the case of a cadaver organ, for

example, there are two possible interests; (a) protecting human dignity through preventing

49

Quran Surah al-Baqarah, 2: 219.

22

mutilation of the dead body and (b) saving life of the recipient of the organ. If medical

assessments assure that the organ transplantation can save the recipient from death, then taking

organ from the cadaver is lawful (mubāḥ) because the benefit of saving life is considered greater

than protecting the cadaver’s dignity. In this regard, the judicial rule “let the one which will bring

greater benefit take precedent” prevails.

However, if the donor is a living person and the act of organ donation threatens his life,

the transplantation of the organ in this case is prohibited (ḥarām) because the benefit of the organ

donation (saving the recipient’s life) can not outweigh the possibility of inflicting harm to the

donor (i.e. the death of the donor). In this light, the judicial rule “preventing harm has priority

over promoting good (benefit)” is applied. However, if the act of organ donation does not

threaten the life of the donor, the judicial ruling will be different. In the case of kidney donation,

for example, the lesser harm in the form of taking kidney from a live donor should be done in

order to avoid the more serious harm, i.e. the death of the recipient. In this case, the legal

principle “the lesser of the two harms should be done” is relevant.

Based on the above examples, it can be said that among legal arguments the question of

organ donation is framed by the need “to gain a greater benefit” and “to avoid a greater harm”.

Another condition that makes the organ donation permissible, even obligatory (wājib) —whether

cadaver donation or live donation—is the condition of necessity (ḍarūra). It happens when the

organ transplantation is the only means to save a patient’s life, whereas seemingly there is no one

willing to donate such organ. Islamic jurists (fuqahā’) would probably stipulate that the organ

donation in this situation is social obligation (farḍ kifāya).50

This means that the Muslim society

50

Abul Fadl Mohsin Ebrahim, “The Sharīʻa View Point on Organ Transplantation”. Journal of the Centre for

Islamic Research 9, (1989), 80.

23

will be blameworthy and sinful for the death of a person awaiting an organ transplant. Equally,

once an organ has been provided for transplant, society is discharged from its duty.51

Conclusion

Based on the above discussion, we can conclude that there are some general

commonalities between the principles of modern biomedical ethics and Islamic legal moral

reasoning and its principles. Both of them have a deep concern with three ethical issues in

bioethics; the principle of not inflicting harm, the rules of finding the best interest, and the ways

of weighing-balancing or specifying when there is a conflict among moral principles. Indeed, the

principle of nonmaleficence can be equated with the concept of “Lā Ḍarar (No harm)” and the

principle of beneficence can be associated with theory of maṣlaḥa (public interest). On the basis

of such commonalities, I believe that Islamic legal-moral reasoning and its principles are

compatible with modern bioethics. These commonalities could become not only a basis of a

further dialogue between two cultures, but also an enrichment of biomedical insights for both

medical traditions.

There are of course some differences between these two traditions. The principle of

nonmaleficence in the tradition of secular bioethics associates the term “harm” with obligations

and rules of not inflicting harm to others in a broad sense. “Not inflicting harm” includes some

specific obligations and rules, such as “do not kill,” “do not cause pain or suffering,” “do not

incapacitate,” “do not cause offense,” and “do not deprive others of the goods of life.”52

In the

Muslim tradition, however, the term “harm” is not always understood in terms of obligations and

rules. The notion of “harm” is contextual depending on what kind of reasoning that one

51

Yeldham, “Islamic Medical Ethics and the Straight Path of God”, 221.


24

harnesses. The term “harm” in istiṣlāḥ context is inextricably associated with the failure of

fulfilling the six human essential needs or the objective of Sharia (i.e. protection of religion, life,

intellect, lineage, property, and human dignity). In the context of istiḥsān, the term “harm” refers

to anything that renders hardship. In the qiyās context, the term “harm” denotes the violation

against the teachings of Qur’an and Hadith (due to, for example, fallacies in using qiyās).

In the same vein, the idea of “benefit” in the principle of beneficence and the concept of

‘benefit’ in Muslim legal tradition have different nuances. The term “benefit” in the secular

sense is a result of either altruistic actions or moral obligations. The act of giving benefit to

others on the spirit of altruism or generosity is called ideal/general beneficence; and, the act of

giving benefit to others based on moral obligations is called obligatory or specific beneficence.

The notion of “benefit” in Muslim legal tradition may also be out of actions that are based on

altruism or moral obligations. However, these altruistic or obligatory actions are not necessarily

performed in terms of giving a benefit to other fellow human beings; but also they are performed

in order to please God through an adherence to textual instructions in Qur’an and Hadith. The

adherence to textual evidences in the Qur’an and Hadith in fact takes precedence over promoting

a foreseeable communal or social benefit.

Those differences, however, do not prevent a possible further conversation between the

two traditions. On the one side, Western modern bioethics could have a perspective of the

possibility of promoting good outside the individualistic world view by referring to the notion of

maṣlaḥa (promoting public interest) or understanding “benefit” in a religious-deontologist sense

(i.e. an adherence to textual instructions). On the other side, Islamic legal-moral tradition ranging

from qiyās, istiḥsān, istiṣlāḥ, Lā Ḍarar , and maṣlaḥa, could learn from the secular bioethics how

to deal with more contemporary sophisticated bioethical issues which they never met before.

25

Bibliography

Adib, Salim M., Sami H. Kawas, and Theresa A. Hajjar, “End of Life Issues As Perceived By

Lebanese Judges”. Developing World Bioethics 3, non 1 (2003): 10-26.

Beauchamp, Tom L. and James F. Childress, Principles of Biomedical Ethics, 6th

ed. New York:

Oxford University Press, 2009.

Bernand, M.; Troupeau, G. " Ḳiyās." Encyclopaedia of Islam, Second Edition. Edited by: P.

Bearman , Th. Bianquis , C.E. Bosworth , E. van Donzel and W.P. Heinrichs. Brill, 2008.

Brill Online. INDIANA UNIVERSITY BLOOMINGTON. 03 December 2008

http://www.brillonline.nl/subscriber/entry?entry=islam_COM-0527.

Brockopp, Jonathan E. and Thomas Eich (ed.). Muslim Medical Ethics: From Theory to

Practice. South California: The South California Press, 2008.

David E. Guinn (ed.), Handbook of Bioethics and Religion. New York: Oxford University Press,

2006.

Dorff, Elliot N. Matters of Life and Dead: Jewish Approach to Modern Medical Ethics.

Philadelphia: The Jewish Publication Society, 2003

Ebrahim, Abul Fadl Mohsin, “The Sharīʻa View Point on Organ Transplantation”. Journal of the

Centre for Islamic Research 9, (1989).

Emon, Anver M. “Natural Law and Natural Rights in Islamic Law”. Journal of Law and Religion

20, no. 2 (2004-2005): 351-395.

Fakhry, Majid. Ethical Theories in Islam. Leiden-NewYork-Koln: E.J. Brill, 1994. Gleave, Robert and Kermeli, Eugenia (ed.). Islamic Law: Theory and Practice. New York: I.B. Tauris,

2001.

Hamdy, Sherine. “Rethinking Islamic Legal Ethics in Egypt’s Organ Transplant Debate”, in “A

Critical Approach To The Current Understanding of Islamic Scholars on Using Cadaver

Organs Without Prior Permission” by Sahin Aksoy. Bioethics 15, no. 5/6 (2001): 461-464.

Hanson ,Hamza Yusuf, Principles of Islamic Bioethics, in Caring for Muslim Patients. Edited by

Aziz Sheikh and Abdul Rashid Gatrad. Oxford-New York: Radcliffe Publishing, 2008.

Hooker, Barry. “Fatwā in Malaysia 1960-1985: Third Memorial Lecture”. Arab Law Quarterly 8,

no. 2 (1993): 93-105.

Hussain, Arif Abdul. “Ensoulment and the Prohibition of Abortion in Islam”. Islam and

Christian-Muslim Relations 16, no. 3 (July 2005): 239-250.

Kamali, Mohammad Hashim, Principles of Islamic Jurisprudence. Cambridge: Islamic Text

Society, 1991.

Kyriakides-Yeldham, Anthony. “Islamic Medical Ethics and the Straight Path of God”. Islam

and Christian-Muslim Realations 16, no. 3 (July 2005): 213-225.

Levey, Martin (ed. and trans.), Medical Ethics of Medieval Islam with Special Reference to Al-

Ruhawi’s “Practical Ethics of the Physican. Philadelphia: APS, 1967, 1-100.

Moazam, Farhat. Bioethics and Organ Transplantation in Muslim Society: A Study in Culture,

Ethnography, and Religion. Bloomington: Indiana University Press, 2006.

Moazam, Farhat. “Patients, and Physicians in Medical Decision Making: A Pakistani

Perspective”. The Hasting Center Report 30, no. 6 (Nov-Dec 2000): 28-37.

Omran, Abdel Rahim. Family Planning in The Legacy of Islam. London and New York:

Rouletdge, 1994.

Omar, Mohamed Abdel-Khalek. “Reasoning in Islamic Law”. Arab Law Quarterly 13, no. 1

(1998): 23-60

http://www.brillonline.nl/subscriber/entry?entry=islam_COM-0527

26

Rahman, Fazlur. Health and Medicine in the Islamic Tradition. New York: The Crossroad

Publishing Company, 1987.

Ramadan, Tariq. Radical Reform: Islamic Ethics and Liberation. New York: Oxford University

Press, 2009.

Rispler-Chaim, Vardit. Islamic Medical Ethics In the Twentieth Century. Leiden-New York-

Koln: E.J. Brill, 1993.

Rosenthal, Franz, Science and Medicine in Islam: A Collection of Essays. Great Britain:

Variorum, 1914.

Sachedina, Abdul Aziz, No Harm, No Harassment”: Major Principles of Health Care Ethics in

Islam, in Handbook of Bioethics and Religion. Edited By David E. Guinn. New York:

Oxford University Press, 2006.

Sachedina, Abdul Aziz. Defining Pedagogical Parameters of Islamic Bioethics, in Muslim

Medical Ethics: From Theory to Practice. Edited by Jonathan E. Brockopp and Thomas

Eich, South California: The South California Press, 2008).

Sachedina, Zulie, “Islam, Procreation, and Law”. International Family Planning Perspective 16,

no. 3 (Sep., 1990): 107-111. Al-Shāfiʻī, Muḥammad b. Idrīs. Al-Risāla. Abd ar-Raḥmān Mahdīy (ed.). Egypt: Shirka Maktaba wa

Maṭbaʻa Musṭafā al-Bānī al-Ḥalbī wa Awlāduh, 1940. Shehaby, Nabil. “ Ìlla and Qiyās in Early Islamic Legal Theory”. Journal of the American

Oriental Society 102. 1 (1982).

Vasalou, Sophia. “Subject and Body in Basran Mu`tazilism, or: Mu`tazilite Kalam and The Fear

of Triviality”. Arabic Sciences and Philosophy 17 (2007): 267-298.

Yaseen, Mohammad Naeem. “ The Rulings for the Donation of Human Organs in the Light of

Sharià Rules and Medical Facts”. Arab Law Quarterly l5, no. 1 (Feb. 1990): 49-87.

The Principles of “Nonmaleficence” and “Beneficence” in Islamic Context

Documents