The Tools of the Islamic Ethico-Legal Tradition (Usul ... · The Tools of the Islamic Ethico-Legal Tradition (Usul) Shaykh Jawad Qureshi 63. ... • Fiqh: the disciplined ... Usul

The Tools of the Islamic Ethico-Legal Tradition (Usul)

Shaykh Jawad Qureshi

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The Tools of the Islamic Ethico-Legal Tradition

Jawad Anwar Qureshi

Interfaces and Discourses:A Multidisciplinary Conference

On Islamic Theology, Law, and BiomedicineUniversity of Chicago

April, 2016

In the Name of Allah, the Most Gracious, the Most Merciful

OBJECTIVES

• understand the broad structure of Islamic ethical thinking, in conversation with Western ethics

• be exposed to various trends in Islamic ethics

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Mapping Islamic Ethics

• Islamic ethics does NOT map onto one particular discipline of Islamic thought

• There are two predominant modes of Islamic ethics1. Virtue Ethics – as it relates to (in medicine) the

physician and the patient

2. Legal Ethics (Sacred Law) – as it relates to acts of moral agents

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ISLAMIC VIRTUE ETHICSPhilosophy (falsafa)

• Four Cardinal Virtues: Wisdom & prudence, courage, temperance, justice

• Al-Kindi, al-Farabi, Ibn Miskawayh, Ibn Sina, Nasir al-Din al-Tusi, Abu Hamid al-Ghazali, Fakhr al-Din al-Razi, etc.

Islamic Terms for virtue: • Faḍīla (pl. faḍa‘il): merit or virtue• Makārim al-akhlāq: noble character traits• Adab (pl. ādāb): proper conduct; proper comportment;

right action• Adab is the central term for virtue in Islamic societies

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VIRTUE ETHICSVirtue Ethics in Medicine

• Adab relates to crafts, practices

• All practices have histories, authorities, that represent the best standards of that practice

• Islamic virtue ethics considers moral exemplars in the history of the practice

• The Proper Conduct of the Physician (Adab al-ṭabīb) by Isḥāq ibn Ruhāwī (9th century CE)

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VIRTUE ETHICSWhat is a practice?

• Alasdair MacIntyre:– “…any coherent and complex form of socially

established cooperative human activity through which goods internal to that form of activity are realized in the course of trying to achieve those standards of excellence which are appropriate to, and partially definitive of, that form of activity, with the result that human powers to achieve excellence, and human conceptions of the ends and goods involved, are systematically extended.” (After Virtue)

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VIRTUE ETHICSInternal Goods and External Goods

• External goods: extrinsic to the practice

• Internal goods: defined in terms of the practice

OR

• Internal goods: where the means and ends are defined in terms of each other

• External goods: where the means and ends are not defined in terms of each other

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VIRTUE ETHICSVirtues and Moral Exemplars

Related to Illness

• The Prophet Ibrahim (upon him be peace) –tawḥīd– … [He] who created me, and He guides me; who

gives me food and drink; and when I am ill, it is He Who cures me. (Q. al-Shu‘ara 26:78-80)

Virtue Ethics 7


Related to Illness

• The Prophet Ayub (upon him be peace) – patience– And remember Ayub, when He cried to his Lord,

“Truly the affliction (al-ḍurr) has fallen upon me, yet You remain the Most Merciful of the merciful!” So We heard him and removed the affliction that was upon him, … (Q. al-Anbiya’ 21:83-84)

– “… Truly We found him full of patience and constancy. How excellent in Our service! Ever did he turn (in repentance)!” (Q. Ṣād 38: 44)

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Related to Illness• Mary the Mother of Jesus (upon him be peace)

– Not despairing– When the pains of childbirth drove her to the trunk

of a palm-tree, she cried out in her anguish, “Would that I had died before this! Would that I had been a thing forgotten and out of sight!”

– But a voice cried to her from beneath (saying): “Despair not! for your Lord has provided a rivulet beneath you…” (Q. Maryam 19: 23-24)

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LEGAL-THEOLOGICAL ETHICS

Legal ethics (i.e. ethics pertaining to the acts of moral agents) relate to a series of Islamic disciplines.

Including:– theology (kalām)

– legal theory (uṣūl al-fiqh)

– law (fiqh)

– Sufism

Legal-Theological Ethics 10

Historical Background

• Schools of Sunni Law– Abū Ḥanīfa (d. 148/767)

– Mālik ibn Anas (d. 179/795)

– Muḥammad ibn Idrīs al-Shāfi‘ī (d. 202/820)

– Aḥmad ibn Ḥanbal (d. 241/855)

• Schools of Sunni Theology– The Mu‘tazilites

– Abū al-Ḥasan al-Ash‘arī (d. 324/966)

– Abū Manṣūr al-Māturīdī (d. 333/944)Legal-Theological Ethics 11

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Ethics at the Theological Level

• Plato’s Euthyphro dilemma– “Do the gods love what is holy (or pious) because

it is holy?

– “Or is what they love holy because they love it?”

• Re-Stated:– “Does God command the good because it is good?

– “Or is something good because God commands it?”


Ethics at the Theological Level

• Mu‘tazilite answer: good and evil can be determined by the intellect NATURAL LAW

• Ash‘arī answer: good and evil are only determined by God THEOLOGICAL VOLUNTARISM

THEOLOGICAL SUBJECTIVISM

DIVINE COMMAND


Problems from Divine Command Ethics (1)

• If the good is determined by God’s commands, how can we know what He commands?– Through revelation

• What constitutes revelation?– Shāfi‘ī: revelation is circumscribed by (1) the

Qur’ān and (2) the authenticated sunnah of the Prophet (Allah bless him and give him peace)


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Ethical-Theological Basis to Islamic Law

• Fiqh– Conventionally translated as “law”

– Lexical meaning: “deep understanding”

• Law is not produced but discovered and formulated

• Fiqh: the disciplined search for the will of God appropriate to a given a situation or act


Ethical-Theological Basis to Islamic Law

• The will of God is determined through a ḥukm(ruling, judgment, determination) appropriate to a given situation– Wājib: Necassary

– Mandūb: Recommended

– Mubāḥ: Permitted

– Makrūh: Disliked

– Ḥarām: Prohibited


Problems from Divine Command Ethics (2)

• The revealed law only deals with a limitednumber of cases? How do we extend the law?– Legal analogy (qiyās)

– Consensus (ijmā‘) of the early Muslims

– Abū Ḥanīfa: legal rulings of the Companions, juristic preference (istiḥsān)

– Mālik: the praxis of the People of Medina (‘amalahl al-medina), non-textual sources (maṣāliḥmursala)


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The Higher Objectives of the Law (maqāṣid al-sharī‘a)

• Voluntarism is mitigated by the presumption that God’s commands are purposeful

• Is there a higher objective of the Law?– The “good” of mankind (maṣlaḥa)– Abū Ḥāmid al-Ghazālī (d. 505/1111): “We mean by

maṣlaḥa preserving the purpose of the law, and the purpose of the law is fivefold: the preservation of religion, life, intellect, offspring, and wealth. Whatever entails the preservation of these five is maṣlaḥa. Whatever dispels these elements is a cause of damage whose repulsion is a maṣlaḥa.” (al-Muṣṭasfa)


Public Goods

• Essentials or Primary Needs (ḍarūrīyāt)

• General Needs (ḥājīyāt)

• Secondary Needs (taḥsīniyāt)


Five Legal Maxims

• Matters will be judged by their objectives (al-umūr bi maqāṣidiha)

• Certainty will not be overturned by doubt (al-yaqīn lā yazūlu bi al-shakk)

• Hardship shall bring alleviation (al-mashaqqatajlibu al-taysīr)

• Harm must be removed (al-ḍarar yuzālu)• Cultural usage shall have the weight of law

(al-‘urf muḥakkama)


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Summary (1)

• To study Islamic ethics one needs to drawn on a variety of disciplines within Islamic thought

• Two broad trajectories of ethics in Islam: virtue ethics and legal ethics


Summary (2)

• Virtue Ethics:– Greek virtue ethics were incorporated early into

Islamic civilization

– Islamic virtue ethics pertain largely to practices/crafts, where adab is the primary virtue to be cultivated


Summary (3)

• Sunni legal ethics:– Rooted in voluntarism– Divine commands are extended through a variety of

means, including analogy, juristic preference, the public good, etc

– God’s will is purposeful and points toward the human good

– The tension between scripture-based voluntarism and a utilitarianism that appeals to higher goods is a key challenge to contemporary Muslim ethicists


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ISLAMIC LAW AS ISLAMIC ETHICS 1

A. Kevin Reinhar t

ABSTRACT After arguing that Islamic law is more basic to Islamic ethics than is either Islamic theology or philosophy, the author analyzes three basic terms associated with law (and therefore ethics): fiqh> shar\ and sharVah. He then sets forth the four roots (usui) of legal/ethical understanding (Jiqh), describes the manner in which a judgment (hukm) is reached m any particular case, discusses the taxonomy of such judgments, and concludes with some comments on the relation within Islamic law and ethics of knowledge to action

One of the perplexities woven into Western studies of Islam is the conflation of Islam as a religious system of faith and practice, parallel in scope to Christianity, with Islam as the whole of the history and custom of Muslims, parallel in scope to India or Christendom. In an attempt to disentangle this conceptual snarl, Marshal Hodgson has introduced a helpful distinction between Islamic as "pertaining to Islam in the proper, the religious sense" and Islamicate as "the social and cultural complex historically associated with Islam and Muslims" (Hodgson, 1974:1:59).

If we accept this distinction, then it is arguable that Islamic ethics can refer only to Islamic law and legal theory. Excluded from Islamic ethics would be the cultural practices which distinguish Algerians from Pakistanis, including their behavioral norms, as well as philosophical ethics. These would fall into the domain of Islamicate ethics, and constitute an important field of study in themselves. Yet because ethics is basically a practical science that studies normative action, the purely theoretical efforts of Islamic theologians (such as Mu'tazilites and Ash'arites) to describe, for example, whether God creates and is responsible for human actions, is arguably not part of Islamic ethics either. The Islamic summons has by and large been understood by Muslims to be a call to righteous action in conformity with the guidance of Revelation. There is no doubt that if most Muslims were asked which science is decisive for the determination of right action, they would nominate the Islamic legal sciences, namely, the fig h sciences. Among the Islamicate intellectual disciplines, only Islamic law is both practical and theoretical, concerned with human action in the world, and (strictly speaking) religious. In this sense, Islamic law and legal theory must be the true locus of the discussion of Islamic ethics.2

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My purpose in proposing such distinctions is to elucidate the position of the fiqh sciences in Islamic intellectual life rather than to disparage other aspects of Islamic studies. Indeed, there is no hermetic seal between the various disciplines of Islamic thought. No Muslim scholar studied Islamic law without also being familiar with Islamic theology. No Islamic philosopher was unaware of the aims and methods of Islamic law. What is important here is to emphasize that Islamic law is the central domain of Islamic ethical thought, both for Islamic studies and for comparative religious ethical studies.

Since the legal sciences are basic to an understanding of Islamic ethics, as they are indeed to an understanding of Islamic religious life in general, how is it that the study of Islamic law has been to such an extent neglected by Islamicists?3 The answer is easily found. Islamic legal books, considered in themselves, are very difficult to read and understand. It is as if, in order to discuss twentieth century American ethics, we were forced to use only short summaries of first-year law school books, together with notes from the lectures of introductory law courses. From our knowledge of American history we might acknowledge the importance of law in twentieth century American life. But it is highly likely that legal and ethical studies of twentieth century America would, for the most part, get very perfunctory attention. To extract a detailed understanding of American legal or ethical theory from such sources would be a great deal of work for a seemingly small reward.

Moreover, Islamicists in the last century had recourse for the most part to books written after the twelfth century CE. , that is, to a time long after the basic questions had been asked and argued. These late medieval Muslim scholastics upon whom the Islamicists depended for an understanding of Islamic thought either contented themselves with a recapitulation of the broad areas of scholarly consensus or labored in gilding the mosaics and arabesques of the law. An observer unfamiliar with the grand design is in no position to appreciate subtleties of ornament or texture. In short, students of Islamics have been reading the wrong books in the wrong way, which has led to both distaste and distortion in the treatment of Islamic law. This essay, however, is an attempt to present Islamic legal thought in a manner that conveys something of its true fascination by showing that, properly understood, Islamic law is not merely law, but also an ethical and epistemological system of great subtlety and sophistication.

THREE BASIC TERMS

There are three terms usually translated as Islamic law, but often mislead-ingly so. These axefiqh, shar\ and sharVah. Fiqh, as it is used in the Qur'ân and during the first two Islamic centuries, is a verbal noun meaning understanding or discerning.4 This usage holds into the period of Abu Hanïfah

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(d. 150 A.H./767 C E . ) and the compiling of the classical collections of hadlth (reports of the Prophet's acts or sayings).5 It is important to grasp the significance of the term fiqh} especially in early usage, because it is only by a careful comprehension of this and other terms that we can come to know what Islamic law really is.

The author (Abu Hanïfah) of one of the earliest surviving Islamic creeds (The Great Understanding—al-Fiqh al-Akbaf) says that "understanding (fiqh) in religious matters (din) is better than understanding (fiqh) of scriptural sources of law ('Urn) and legal statutes (al-hudüd)" (Abu Hanïfah, 1948:5; Wensinck, 1932:104; 110-112). Fiqh therefore, means understanding, and the objects of //^-understanding are either religion (din) or sources of law and statutes (Ulm wa-1'hudüd).6 The fiqh-process is often called, elliptically, fiqh from 'ilm al-fiqh (the science of fiqh). The concept usually translated by the term Islamic law, is really a process of discerning what religious conduct is, what the sources of such knowledge are, and what the consequent statutes must be. Fiqh-law is therefore not legislated but understood, not produced but discovered and formulated. The fiqh-process is highly formal and has as its aim to understand the import of Revelation for human moral life. This process, as we shall see, is quasi-inductive; it assumes a large but limited body of data as the raw material for its process of transformation from Revela-tional account or text into moral/legal norm. More specifically, the fiqh-process is the disciplined search for the hukm (determination, assessment, ruling, judgment) that is appropriate to a given situation or act, about which more will be said later.

By contrast, the other two terms often translated as Islamic law (shar* and sharVah) refer not to the process of knowing moral law, but to the way in which that knowledge came to be knowable and in force. It is often said that sharVah originally meant a highway (e.g., Rahman, 1979:100; Gibb, 1962:64). The image conveyed is that of a highway along which to travel in order to lead the moral life.7 It is clear, however, that while lexical works did adduce this meaning, a conflation has taken place with the word sunnah (see below), which does mean path. However, in the earliest surviving Arabic dictionary (al-Khalïl, 1968:1, 293; see also The Encyclopedia of Islam, vol. 4:962) the author and his redactors offer a field of meanings which suggest a different image from that of a well-worn path of virtue. According to this source, the verbal form of the root sh-r-' means "entry into something" ("the water-bearer went into the water"), and the noun sharVah, "a place on the bank of a river where animals can enter the water." A further lexical source is the Qur'an, where the verbal occurrences have God as their subject (42:13, 21) and the nominal forms refer to something appointed by God for humankind (45:18; 5:48). The Qur'ânic (and therefore normative) image is thus of God going into the world in Revelation, and by means of His Revelation establishing an access to His realm.

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Considered from another point of view, shar( and sharVah are bounded in time by the dates of the Prophet's revelation and his death. Shar( is both the fact of divine immanence in history and the moral imperative that remains. SharVah is only that moral imperative and its specific contents. Fiqh, on the other hand, has a terminus a quo: the death of the Prophet. After that moment, which ended the direct access to God that Muhammad had provided, Muslims are enjoined to discern, according to a formal method, what the shar( implies and includes, and to act upon that knowledge.

We have discussed these basic terms at such length because it is important to understand what the enterprise is about, and because existing introductions misstate the matter. Wilfred Cantwell Smith has provided one of the very few careful studies of the sharVfiqh distinction (Smith, 1981:88-109). It is important to acknowledge one of his conclusions, namely, that the actual statutes (the law strictly speaking) are a by-product when considered in relation to their source and to their power to compel. In light of the discussion above, it can be said that the statutes or ordinances are the result of some sort of entry (shar() by God into the world in order to provide a means (sharVah) to Him. The way into that ford between the mundane and the divine is disciplined understanding (fiqh).

THE FOUR ROOTS (USÜL) OF UNDERSTANDING (AL-FIQH)

The //^-process, as it developed, was understood as a movement from the bases or roots (usui) of Revelation to specific determinations (ahkam — plural of hukm, which means judgment, assessment, determination) that constitute the actual dictates of divine law. The first and most important of these Revelational bases or roots was of course the Qur'an. For the Muslim, the Qur'än is the very Word of God, impeccably revealed through Muhammad, the most perfect medium for the transmission of God's Word. As such, discussion of legitimate action must revolve around the text and the context in which it is to be applied. There is no question and no discussion of whether the Qur'ân is significant in itself. Therefore, the foundation of the entire system of fiqh-thought is the Qur'än. The significance of the Qur'än is not only that it is the record of a particular irruption by God into the world at a particular time through a particular Messenger, although it is that also and part of its significance derives from that fact. Its significance is chiefly that the Qur'än is an unparalleled window into the moral universe. It is a source of knowledge in the way that the entire corpus of legal precedent is for the common law tradition: not so much as an index of possible rulings as a quarry in which the astute inquirer can hope to find the building blocks for a morally valid, and therefore true, system of ethics (Burton, 1977:4,111, et passim).

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For the Islamic scholar from the third century onward (from approximately 950 CE.) the Qur'än has been understood to be a collection of indicators (adillah) or revelational determiners (al-qawätV al-sam'iyyah) (al-Juwayni, n.d.:2A) which point the way to moral knowledge.8 By the disciplined use of these indicators the scholar could hope to arrive at knowledge which is morally valid, and which informs him of the assessments (ahkäm) of acts. Thus the fiqh-process consists, first of all, of a search for straightforward indicators in the Qur'än text which can be juxtaposed with a human predicament. This juxtaposition places the act in its proper moral context and informs the scholar of the act's assessment (hukm).

By the fourth Islamic century it was generally acknowledged that the reports of the Prophet's words and actions (hadith) formed the second binding source of law, that is, a second source of indicators, elaborative of and supplementary to the Qur'än. The standard six or so collections of hadlth-reports (see note 5) represent the consensus of the first four centuries as to what the Prophet did or said, subject to further criticism of the reports' transmitters. Thus there were two material sources for the //^-process, the Qur'än (the actual word of God) and the hadlth-reports of the Prophet, which, given his immaculate status, was a record of the Qur'änic norms as lived in this world.

The hadlth-reports, considered as a whole, contain the sunnah of the Prophet, which is not simply a record of Prophetic doings but of the Prophet's significant, exemplary acts, non-acts, and sayings.9 The Qur'än's integrity was guaranteed by its miraculous inimitability and plural transmission; the prophetic sunnah was vouched for by the immaculate protection ('ismah) of the Prophet, Qur'änic attestation, and plural transmission. What is noteworthy is that, except in broad outline, the sunnah was not a mere catalog of model behaviour to be emulated, but rather a collection of data which required assessment and application in an appropriate context. A life lived totally in accord with the Moral becomes a window into moral knowledge. The Prophet is thus, for the practitioner of fiqh, not really a model but a normative case, not so much a person as a principle.

There have been described so far two sources or bases (literally "roots") of .//¿^-understanding (Qur'än and hadith). Both are material roots or sources, that is, they are collections of indicators to which the scholar has recourse when asking, "What is the moral assessment of this act?" The third and fourth roots are procedural and are used both hermeneutically (to interpret Qur'än and hadith) and substantially (to augment the two material sources).

The third root, consensus (ijmä'), refers to an agreement by an authoritative body about the assessment of an act or practice. It tells us what the bearing of a Qur'än or hadith text is, since it is among other things the agreement about the application of a particular Qur'än or hadith indicator. It is also a record of agreement on an issue not covered by the two material sources

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and, as such, constitutes a material source in itself. There has been considerable discussion, never fully resolved, as to whose consensus was binding, that of the Companions of the Prophet or that of the scholars of each generation.10

The extent to which ijmff is a procedural or material source varies from school to school.11 For example the Hanbalis, who arose in a climate of theological and intellectual dissension, were the most mistrustful of ungrounded speculation by the Muslim community, and therefore most methodologically committed to the myth of the pristine early community of the Prophet and the four "rightly-guided caliphs." Most Hanbalis accepted as ijmä'only the consensus of the Companions of the Prophet because the gap between the Companions' moral quality and that of other Muslims was enough to render an agreement by the Companions and their immediate successors categorically different from that of any subsequent generation. Therefore, Ahmad ibn Hanbal and others of his school said that only the consensus (ijmä() of the Companions was a third source of moral knowledge. The record of the Companions' agreement is a source like the prophetic hadith-reports; it is the sunnah of the Companions. Consensus is not, therefore, a procedural source in this case.

This was not so for most Hanafis. They held that agreement of the scholars of an age constituted a source of knowledge for succeeding generations. As the first of the legal schools to develop, they seem to be both closer in time to the early generations and more historically egalitarian. They held that the gap between the first generation of Muslims and later ones is an accident of time, not a determinant of or reflection on moral quality. Thus when a new problem occurs, both the record of past consensus and a present-day consensus should serve, they believed, as sources of moral knowledge. "My community will never agree on an error," said the Prophet, and the Hanafis understood the "never" as being an unbounded promise.

The fourth root of jurisprudence is analogical reasoning (qiyâs). Let us suppose that after following the//^Ä-procedure we come to a certain hukm A, which is produced by consideration of the factors ρ and q. When faced with a problem B, we look first for the presence of factors similar or equivalent to ρ and q so that the ruling about Β can be made by analogy with A. In daily life it is clear that situations and cases will arise for which (especially given a closed ÄadiiA-corpus) there is no appropriate explicit text (nass) in the two closed material sources, and for which there is no consensus. Thus the qädl (judge) or muftì (jurisconsultant) extracts the motivating cause ('Mah) from a previous unambiguous hukm. Let us use a standard example. Wine made of grapes is explicitly forbidden in the Qur'än. But is whisky, for example, forbidden? If one says grape wine is forbidden because it intoxicates, then a cause ('illah) has been extracted from the explicit text (nass). Erwin Graf (1960:18) offers the following syllogistic formula:

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(1) All intoxicating drinks count as grape-wine (propositio minor); (2) All grape wine is forbidden (propositio major); (3) Therefore every intoxicating drink is forbidden (conclusio).

In this case whisky is brought into juxtaposition with wine by defining wine to include a factor that is also constitutive of whisky. It should be obvious that the choice of the significant or relevant factor, and the defense of that choice, constitutes the substance of qiyâs argument.

The legitimacy of qiyäs as a legal method contains an implicit acknowledgment of the inadequacy of the material sources. It is remarkable, however, that the fiqh system allows for response to novel circumstances only where the response is grounded in one of the closed Revelational sources. This requirement of groundedness has as its purpose the prevention of what Muslim scholars dreaded most, namely, capricious opinions (ahwä'). By grounding all of life in the relatively small body of Revelational texts, Muslim scholars insured the universalistic and transnational character of Islamic intellectual and moral life.

MAKING A DETERMINATION (HUKM)

Fiqh then is the process of bringing these four roots into conjunction with the problem at hand in such a way as to produce knowledge of a determination (hukm). As it came to be understood, knowledge of the Qur'änic dictum, "Do this," is not by itself sufficient to know the moral assessment of the act. One has to seek a context, namely, the actual context of the prescription in the text of the Qur'än, in other relevant passages in the Qur'än, in relevant hadith, or in possible community consensus (ijmä'). Only the sum of all of the relevant indicators could be considered true moral knowledge, namely, an accurate (or at least functionally accurate) understanding of God's will in the field of human activity: the shar\

What kind of knowledge is this understanding of the hukm of an act? With this question we come to one of the most interesting aspects of the theory of fiqh. Al-Juwaynï (n.d.:2A) concedes that all /^-knowledge is suppositional knowledge danni), that is, not certain knowledge. The^Ä-process is, as al-Shafi'ï makes clear (1979:497, sec. 1332; Khadduri transi., 1961:290, sec. 495), one of coming to relative certainty since absolute certainty in things hidden is the sole prerogative of God. Yet, al-Juwaynï argues (n.d.: 2A) //tf/i-knowledge includes "the certain knowledge (Ulm) of the necessity (wujüb) of acting upon the establishment of suppositional knowledge [obtained through the//g/j-process]." This means that one knows with certainty through the//^-process of the necessity of acting upon suppositional fiqh-knowledge. Certainty lies in moral action more than in knowledge, which is always an attempt to know the hidden. Knowledge can be imperfect, but ac-

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tion based upon imperfect knowledge, correctly obtained, is nevertheless righteous action.

At the end of the process described above, one comes to a hukm, a determination of some sort. Because the hukm is guaranteed by sources which are of God, it has the same imperative status as a direct command from on high.12 It is therefore true and morally valid.13

There were two fundamental perspectives on the nature of the hukm and its ontological relation to the act. It would seem that in the earliest period to which we have access there was a consensus that innately some acts were morally reprehensible or obligatory and as such could be known before or without Revelation. Revelation's purpose then was to confirm or supplement this pre-Revelational knowledge. Such a position seems justified by a number of Qur'änic appeals to non-Revelational moral knowledge.14 More scholarly supporters of the notion that moral knowledge was possible outside of Revelation defended their position by arguing that the moral quality (hukm) of the act was part of its ontological nature and was therefore discernable by (aql (usually "reason" but I believe here to be understood as innate or com-monsense knowledge). There was, nevertheless, an impulse to give primacy to the shar'as the means by which we know moral assessments (ahkäm). This movement arose in part as a result of the growing consensus that human beings need reliable knowledge to know the moral assessment of acts, knowledge which could not be obtained by (or, at least could not be grounded in) human knowing. Else, why Revelation? Yet at the same time this mistrust of the human intellect coexisted with a general mistrust of information conveyed solely through language, particularly if not corroborated by multiple transmission or some other source.15 There was indeed a general skepticism of the possibility of purely human knowledge being certain at all.16

By the fourth Islamic century, therefore, Muslim intellectuals were divided into those who held that there was, even in the absence of or before Revelation, enough knowledge to assess acts morally and those who held that acts unsanctioned or unjudged by Revelation were outside the bounds of Islam and therefore reprehensible or, at best, indifferent. Alternatively, many held that in the period after Revelation's coming all acts could be morally assessed by use of the material sources of //<jr/i-knowledge. According to them, if it appeared that no assessment was possible through the fiqh-process, it was only because of the deficiency of the scholar who was unable to define the context of the act in such a way that the appropriate indicator was evident.17

THE TAXONOMY OF THE DETERMINATION (HUKM)

The hukm may be any of three kinds: (1) a determination of judicial fact (hukm al-qädl, and sometimes hukm al-mufti), (2) a, determination of va-

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lidity (hukm wad'I), and (3) a determination of moral status (hukm taklifi). (1) A determination of judicial fact (hukm al-qädi) (a) is not disputable

and (b) does not establish a precedent. Assuming the judge (qädl) to be just and qualified, his ruling may not be reversed or disputed. His ruling is "per-formatively" true in that it settles the particular case with whatever consequences are involved. It does not, however, set a precedent for other cases. This is because the ruling may actually be in error, and therefore not "onto-logically" true (ihätatu l-häqq fl-l-^ähiri wa-l-bätin) (al-Shafi'ï, 1979:478, sec. 1328; Khadduri transi., 1961:289). Nor need the ruling be evidence of a consensus. What the judge has arrived at functions as true moral knowledge, but is not certain moral knowledge.

(2) A determination of validity (hukm wad'I) is either of two sorts, (a) It is a finding that a particular act meets the necessary conditions for that kind of act. For instance, it judges that a specific form of contract satisfies the requirements for a valid contract as laid down in Qur'än and hadith, and as such has the attributes that such valid instruments have, namely, it is both binding and effective. Or (b) a determination of validity is a finding that the object under consideration constitutes a coextensive occasion (sabab), a necessary condition (shart), or an impediment (man'). The following are classic examples of this sort of hukm wad'I. The observation that the moon has arrived at its crescent form is the "proof that the fasting month of Ramadan has begun. Such a lunar observation, therefore, is the coextensive occasion (sabab) for the beginning of the fast. Again, when it is determined that a particular act of ritual worship (saläh) has been performed with intentionally (niyyah), that ritual act is valid because intentionality is a necessary condition (shart) for such worship. Finally, the observation that a woman has menstrual blood establishes that there is no need for her to perform ritual worship since menstruation is an impediment (man') to formal worship.

Both the determination of judicial fact (1) and the determination of validity (2) have in common that they are "performative": the determination of "x" brings "y" into force. Finding a coextensive occasion (sabab) such as the crescent moon brings into force the requirement to fast. And finding that an individual did steal brings into force the penalty for theft. In another sense both kinds of determination are "indexical," that is, they point from the visible (the arrival of a crescent moon, the absence of intentionality, the presence of menstrual blood, the persuasive evidence of theft) to the invisible or the more abstract (the boundary of an Islamic month, the invalidity of worship, the acknowledgment of ritual impurity, the reality of a theft having occurred). As indices or signs, both kinds of determination are accepted conventions. They do not guarantee that the qädl 's judgment is a reflection of actual truth, for that is God's knowledge alone. Nevertheless, the qädFs determination must be acted upon. Similarly, there is no particular reason why a month begins with the sighting of the crescent moon, but it is agreed that the sighting defines the month.

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(3) The determination of moral status (hukm takllfi) involves consideration of the five-fold classification of moral acts.18 With this classification (which is found most characteristically in the Shafi'i and Hanbali schools of fiqh), Muslim scholars categorized all human behavior.19 Although this is not to say that these were the only terms used,20 it is the case that the following five categories represent the entire range of moral assessment.21

a) Required, obligatory (wäjib or fard). These are the acts which are incumbent upon every Muslim regardless of aspiration to saintliness or piety. They constitute, as it were, a minimum condition for membership in the Islamic community, and neglect of them ought to be punished both in this world and in the next (al-Qädir, 1938-40:8:111). Repudiation or denial of this need to perform them is proof of apostasy. In the classical reformulation, "it is that for the neglect of which one is punished [and most sources add] and for the doing of which one is rewarded."

b) Proscribed, taboo-like, prohibited (mafaür or haräm). These acts, like those of the required class, serve to determine one's membership in the community. Performance of certain of these acts, or declaration of the legitimacy of performing them, is proof of apostasy. These are acts (according to the classical formulation) "for the performance of which there is punishment [and most sources add] and for the avoidance of which there is reward."

c) Recommended (mandüb). Sometimes synonymous with agreeable (mustahabb) or exemplary practice (sunnah). This is one of the categories with virtue connotations in the Islamic moral system. It contains acts which are commendable but not required. "[They are acts] for the doing of which there is reward, but for the neglect of which there is no punishment."

d) Discouraged, odious (makrûh). Acts of this category ought to be avoided as a way to piety but (like recommended acts) are not definitive of one's status within the Muslim community. "[They are acts] for the doing of which there is no punishment, but for the avoidance of which there is reward."

e) Permitted (mubäh). Often functionally means indifferent. Considerable discussion occurs as to whether these acts are inside or outside the system, that is, whether there is a group of authorized but unrewarded and unpunished acts, or whether these are simply acts with no moral status, and hence no moral consequences. This is ultimately a question of the nature and boundaries of the shar'. Classically, these are "the acts for the performance or avoidance of which there is neither reward nor punishment."

These five categories represent not only the Islamic understanding of how the upright life is to be lived in the world, but an explicit rejection of the bi-polar view of moral categorization as simply good and bad. However, one group of Islamic scholars (the Mu'tazilites) did try to define the moral world in terms of good and evil (hasan and qabih) and argued that the mind instinctively divides acts into these two categories, together with a third, obligation (wujüb). That the mind does so, they argued, is proof that the ontological categories of acts are good and evil, and that these ontological assessments

81


can be known. However, this system of categorization was rejected. Nevertheless it was eventually conceded that the mind's instinctive perceptions might reflect Revelational (sharl) determinations in such a manner that good (hasari) and evil (qablh) might be acceptable, if imprecise, synonyms for the more precise five-fold terminology. But as an independent scheme of moral categorization, good and evil were repudiated. The tendency of the mind innately to form judgments was granted, even though the moral accuracy of these judgments was not. Rather the Ash'arites argued that such judgments reflected different criteria: perfection, interest, conditioned response, and so on (see al-Ghazalï, n.d.: 1:55-65).

The historical significance of the five-fold system is that it represents the compromise which was made in the first two centuries between the moral perfectionists, represented at the extreme by a group called the Kharijites, and the practical requirements of a world-wide polity that was inclusive and expansionist. To demand of Muslims that they be saints was not only impractical, but arguably contrary to an important Qur'änic distinction. "[Rather than saying] 'we have faith' (ämannä), say 'we submit' (aslamnä), for faith has not entered your hearts. Yet if you obey God and His Messenger, He will not withhold anything [of the reward of] your deeds. God is Forgiving, Merciful" (Qur'än 49:14). There is therefore a two-tiered membership in the community: those who are nominally obedient and those who are faithful, those who live between the boundaries of "must and must-not" and those who strive to do the recommended and avoid the discouraged. The five-fold system allows for this inclusive and hierarchical moral system while a bi-polar system does not.

It should be noted as well that the two levels of moral action correspond to common moral experience in that we perceive some norms to be binding and others to be objects of aspiration. While the Muslim would recognize that some moral failures are more consequential than others, he might argue that the imperative to aspire to virtue is not categorically different whether there is punishment for failure or only the absence of the commendation that belongs to the virtuous.

THE RELATION OF KNOWLEDGE TO ACTION

Thus far a sketch has been drawn of the theory of ethics that characterizes the//<7Ä-sciences, a theory that involves a particular process which produces moral knowledge. What remains is to describe the power to necessitate action inherent in that knowledge. Put another way, what remains is to describe how the human being, by virtue of being human, must respond to the moral knowledge derived from the fiqh-process.

There seem to be two classical theories of the imperative which compels

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an individual to respond to the knowledge of the moral classification of an act. Al-Sarakhsï (1952: II: 332-353) has one of the clearest descriptions of one of the two theories of the nature of obligation.22 According to al-Sarakhsï (490 A.H./1096 CE.), from the moment of birth human beings have a competence (ahliyyah) to undertake a trust from God. This competence lies in the fact that God has created man with instinctive knowledge ('aql) and with a covenant (dhimmah) which is his by virtue of being of sound mind. There are many subtleties discovered by al-Sarakhsï in his discussion of this matter, but for our purposes it is enough to know that the covenant does not come into force until one can be said to be 'äqil, that is, fully endowed with innate knowledge (faql), what we would call compos mentis. Thus, that which effects human responsiveness to moral knowledge is the presence of innate knowledge and the duty (hurmah) to act upon that knowledge so as to accomplish the terms of the covenant with God that is a feature of human nature.23

For the mature human being an obligation comes into force by reason of a coexistensive occasion (sabab) (al-Sarakhsï, 1952: II: 334 et passim). The occasion is, of course, preceded by an order to do something. But though we know the significance of the occasion by means of the communicative act (khitäb)—in this case a command — it is nevertheless the occasion that brings the duty into effect and not the command.

Thus the chain is:

(1) Creation of human beings with competence to be obligated. (2) Communicative act stipulating that a certain occasion requires a cer

tain response. (3) Judgment and knowledge; that is, the power of effective response. (4) Occasion and therefore determination (hukm) of obligation. (5) Discharge or failure to discharge the obligation.

This all seems quite abstract, and it is helpful to consider an example provided by al-Sarakhsï. In the example, the given is that the Qur'än forbids killing of other humans except in legitimate war, and similar cases. Thus all human beings are obliged not to kill their fathers. To kill one's father is the coextensive occasion for infliction of a specified punishment. Yet if a young boy kills his father, he is not liable to the statutory penalty. Why? The argument goes as follows: although (a) the coextensive occasion (sabab) for the punishment exists in the son's "resolution of his own accord" ('amdun mahdun) to kill (namely, it was not an accident and he was not compelled to do it), and although (b) the locus or agent of the obligation not to kill exists in the son (for example, it was not a goring by a bull), nevertheless (c) the effective power of response (sallähiyyah) to the obligation (ahliyyat al-adä') is vitiated because the underage son lacks the power to "accept consequences and duties" (istisfä'). Therefore (d) the son is not capable of being in the state of deliberateness (qasd) to kill his father as far as the shar' is concerned (Qur'än 2:336) and,

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as the power to discharge is lacking, the obligation to obey the stipulation is voided.

The concept of competence represents the power of moral knowledge to oblige human beings by the fact of their being human. "We are moral animals," al-Sarakhsï may be understood as saying, "and by our nature we are fit to be obligated by the knowledge that Revelation gives."

The second theory of the way knowledge necessitates action came from the Hanbali and Shafi'i schools. They preferred to stress the fact of Revelation as an event that brought morality into being. Accordingly, they discussed moral necessity not in terms of "being obligated" by a covenant that is part of our natures, but in terms of "being obliged" by the injunction (takllf) that Revelation contains.24 By contrast with the somewhat internalistic notion of competence (ahliyyah) as a boundedness arising from the fact of humanity, subject only to information as to what one is bound to do, the Shafi'i/Hanbali approach stresses the external nature of the bond to act upon moral knowledge. For the same source that tells us what we ought to do also tells us that we ought to do it. It is the event of the Qur'än that brings both the bond and the knowledge that makes that bond possible. It is the power of the Legislator, that is, God (al-Shäri'), to oblige us morally by virtue of our nature as His creation. For the Shafi'i and Hanbali it is important to realize that virtue comes about by the fact of Revelation, and by the internal knowledge which enables us to be tested. When we respond positively to the test and are obedient to the stipulations brought in the shar', then we are virtuous. There is no virtue in real terms outside the response to Revelation. The communication (khitäb) brings into being a new attribute attached to the act, which enjoins us to respond to it (al-Taftäzäni, n.d.: I, 298:19). The image is that of a morally inert humanity, transformed into moral beings by Revelation.

Yet even among the advocates of this second theory about how knowledge necessitates action, there is a notion that human capacity is involved. It is only that the emphasis is shifted. Human beings, in order to be enjoined, must have the power to be receptive: they must be fully endowed with innate knowledge, and free from compulsion.25 This innate knowledge ('aql) is the unique quality of human beings. It remains true for all schools that morality is a property uniquely and essentially human. The Hanafi model is of a bond that is in force from birth but not executable in early childhood. The alternate model is of a duty rendered the moment the order is understood. Hence, we have two theories of the relationship of human beings to moral knowledge. On the one hand, they must act because of an internal disposition which is part of their nature. On the other hand, they must act because of the external power of injunction (takllf). Both of these theories of the suasive power of knowledge depend upon the capacity of the human to know, and his having been addressed in the shar'.

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In conclusion, it may be said that Islamic law stands as a significant example of a moral and legal theory of human behaviour in which initial moral insights are systematically and self-consciously transformed into enforceable guidelines and attractive ideals for all of human life. As the intellectual realm of the moral life of a great religious civilization, the .//^-sciences deserve to command our respect and attention. The sophistication, discipline, and moral aspiration of Islamic law may also evoke our admiration.

NOTES

1. Professors Wolfhart Heinrichs and Frederick Carney and Ms. Anne Royal read an early draft of this article and made substantial suggestions. In addition, Ms. Royal lent her eye to the preparation of the manuscript. Mr. Aron Zysow has been a helpful colleague in an arcane field. Much of the merit of this paper reflects their contributions and no doubt this would have been a better work had I accepted and incorporated all of their suggestions. Any shortcomings here are therefore entirely mine.

2. A possible exception to this argument might be the case of the ethical norms taught in the context of Sufism (Islamic mysticism). For the Sufis, however, right action is seen as a preliminary to the mystical task. Moral behavior is not (to my knowledge) systematically defined and analysed. Sufism presumes the norms of fiqh while proposing to go beyond the competence oí fiqh.

3. It should be noted that the study of Islamic law has been carried out by philo-logians and comparative lawyers. Although researches of the philologians have defined and established the field of Islamic law, the comparative lawyers have influenced the field by tending to minimize its moral content. What is especially surprising, however, is that most students of Islamic religion and religious thought have been so little interested in Islamic law per se. The paucity of studies of Islamic law proper is reflected in its treatment as a synchronous set of general principles which have origins but no real development. See, for example, Schacht and Bosworth (1974:392), where law is called "the most typical manifestation of the Islamic way of life," yet is described merely as a phenomenon which "guarantees . . . unity in all its diversity" (396), as "systematic" (397), and as "analytical and analogical" (397). This sort of functionalist generalization about Islamic law by Schacht and Bosworth is to be contrasted with their presentation of Islamic theology which, despite being characterized as "never [having] been able to achieve [an importance] comparable [to law] m Islam" (392), is nonetheless presented by them as a set of problems worked out over time by specific scholars. The development of these problems in Islamic theology is described, the scholars are named and located, and their individual contributions are discussed (359-365).

4. "They said: Ό Shu'ayb: There is much of what you tell us we do not understand (nafqahu)'" (Qur'än 11:91).

5. The two most important collections of hadith are by al-Bukharï (256 A.H./ 870 CE.) and Muslim (261 A.H./875 CE.) . These are followed in importance by the collections of Abü Dá'úd (275 A.H./889 CE.) , al-Tirmidhï (279 A.H./892 CE.) , al-NasäT (303 A.H./915 CE.) , and Ibn Mäjah (273 A.H./886 CE.)

85


6. Compare the alternative wording used in another early creed, The Lesser Understanding (al-Fiqh al-Absat). For this see Wensmck (1932: 111, note 2).

7. This image is particularly appealing because of its parallel to halakha (Jewish law) and tao (the Chinese "way" that must be followed in order to live harmoniously).

8. Al-Ghazâlï (n.d.: I, 5:5) says "the roots (usui) of moral discernment (fiqh) are the indicators (adillah) [that point] to [moral] determinations (ahkäm)"

9. Bravmann (1972:155) has recently demonstrated that sunnah means actively differentiating one part of one's conduct as normative.

10. There are a number of other possibilities, but these two represent the most prominent. The concept and usage of ijmà' is discussed at length m Zysow's dissertation (n.d.: ch. 2) from which I take much of my understanding of this matter See also Hourani (1964:13-60).

11. The way in which the Qur'an and hadith are used varies, as do also ensuing judgments. By the end of the fifth century A.H./eleventh century CE., these different approaches had crystallized into four schools of thought (madhhab). These were the Hanafi (named after Abu Hanïfah), the Maliki (named after Mälik Ibn Anas), the Shafi'i (followers of Muhammad Ibn Idrïs al-Shâfi'ï) and the latest school to develop, the Hanbali (whose eponym was Ahmad Ibn Hanbal).

12. "The moral determination (hukm sharl) is the primordial (qadlm) pronouncement of God in conjunction with the acts of the morally responsible agent, by stipulation either of a specific duty (iqtidâ') or stipulation of choice (takhayyur)" according to al-Qaräfi (1973:67). "[We say] primordial to distinguish [the hukm shar'i] from the texts (nusûs) which signify the determinations. These are indeed the address of God [also], but they are not a determination unless there is a uniting of the signifier (dalli) with the 'case to which the signifier applies' (madlül). But this [bringing together] is created-in-time . . . [We say] 'stipulation of a specific duty' so as to exclude informational pronouncements (akhbàr [those portions of the Qur'än and hadith which are narrative or of no indicational significance]; and [we say] 'stipulation of choice' so as to include [those acts which are] permitted (mubäh)."

13. "What the mufti opines (ma afta bihi l-muftl) is the hukm of God (fa-huwwa hukm Mähr (ar-Râzï, n.d.: IB).

14. For example, "Lo! In the creation of the heavens and the earth and the difference of night and day . . . and the water which God sends down from the sky, thereby reviving the earth after its death . . . are signs for people who have sense (ya'qilüna)" (Qur'än, 2:164-Pickthall tr. modified). Also "When it is said to them Tollow what God has sent down,' they say rather, 'We follow that m which we found our fathers.' Even if your fathers had no sense (ya'qilüna) and had no guidance?" (Qur'än, 2:170).

15. This is an important aspect of the Muslim debate over the nature of language, whether conventional or revelational. A "natural" language has a degree of certainty and reliability that makes knowledge-from-language more certain. See Weiss (1974:33-41).

16. See al-Ghazalï (n.d.: 1:3:9-11) where the purely rational sciences are described as "something between blameless but false supposition (and some suppositions are sins) and truthful but useless knowledge" [text corrupt].

17. This debate is the topic of my Before Revelation: Muslim Sources of Moral Knowledge, a forthcoming Harvard University dissertation.

18. I am indebted for part of my analysis of these categories to Frederick Carney's article, "Some Aspects of Islamic Ethics" (1983:160-168).

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19. I shall follow the order presented in Ibn al-Häjib (n.d.: 23-28). 20. Graf (1977) counted one hundred and nine different terms of act assessment

in one chapter alone of a famous fiqh manual (al-TusFs). 21. It is noteworthy that Ansari (1972:294-298) finds that the five-fold system is

implied in texts which predate the formal development of the system. It is reasonably clear, in any case, from the terminology and grammatical forms used (passive participle) that most of the terminology of the five-fold system is extra-Qur'änic.

22. This theory goes back, however, at least to al-Shaybanï and probably precedes him, for al-Sarakhsï's analysis is a commentary upon and reorganization of al-Shaybanï's work.

23. It should be noted that al-Sarakhsï actually says that from birth one has a duty (hurmah) to be bound by moral knowledge. Upon attaining intellectual majority one acquires a second duty, namely, to discharge the terms of the covenant with God (dhimmah) because of the acquisition of effective power of discharge (sallähiyyah).

24. Injunction (takllf) is defined by al-Zarkashï (n.d.: 41B: 8-9) as "the willing by the enjomer of an act [to be performed by] the enjoined, which [act] is troublesome to [the enjoined]."

25. "The necessary condition of being enjoined (mukallaf) is that he be compos mentis ('äqil), understanding the communication (khitäb) . . . The implication of enjoining is obedience and following orders. This is not possible except by intentionality to follow orders (qasd al-imtithäl). The necessary conditions of intentionality are knowledge of the thing intended and understanding of the injunction. Every second-person address (khitäb) includes the command, 'Understand!'" (al-Ghazalï, n.d.: 1:83: 12-15).

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Divine Command Ethics in Early Islam: Al-shafi'i and the Problem of GuidanceAuthor(s): John KelsaySource: The Journal of Religious Ethics, Vol. 22, No. 1 (Spring, 1994), pp. 101-126Published by: on behalf of Journal of Religious Ethics, IncStable URL: http://www.jstor.org/stable/40017843 .

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DIVINE COMMAND ETHICS IN EARLY ISLAM

Al-Shafi'i and the Problem of Guidance

John Kelsay

ABSTRACT

Al-Shafi'i (d. 820) is clearly one of the most important figures in the early history of Islamic jurisprudence. His Risala or "Treatise" on the "principles of jurisprudence" (usul al-fiqh) is also of interest as an example of an approach to ethics that focuses on divine commands. Following a brief introduction, I offer the reader a few comments about al-Shafi'i's context. I summarize the content of the Risala and then analyze it as an example of divine command reasoning in ethics. Finally, I present some observations on the place of al-Shafi'i's theory in the history of Islamic ethics, particularly with respect to his comments on ikhtilaf, "disagreement."

Muhammad ibn Idris al-Shafi'i (d. 820) is familiar to students of Is- lam as the "founder" of the Shafi'ite "school" of law - one of the four schools traditionally recognized as legitimate within Sunni Islam. As such, al-Shafi'i's place in the early history of Islamic law is well-established. According to Ignaz Goldziher, Joseph Schacht, and others, he is, in fact, the decisive figure in the early development of the theory of usul al-fiqh, the "principles of jurisprudence" (Goldziher 1971; Schacht 1950, 1953, 1974; see also Coulson 1964, 1969, and Hodgson 1974, 1:315-58). Thus, al-ShafiTs thought may be, and usually has been, analyzed with a view toward understanding his unique contribution to Islamic legal theory.

While I will make use of the insights offered by these legal studies, the special interest of the essay will be to highlight an aspect of al- Shafi'i's work which is obscured by locating his work in the domain of jurisprudence. Through a close reading of his Risala or "Treatise," I will argue that al-Shafi'i explicates and defends a particular type of reasoning in ethics and that the systematic theory of practical justification that he develops falls within the domain that we normally describe as divine command ethics. Al-Shafi'i is, therefore, a pivotal figure not only to the history of usul al-fiqh, but also in the history of Islamic ethics. His use of divine command theory to override local

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102 Journal of Religious Ethics

practices and his distinctive resolution of the problem of guiding decision in cases not dealt with in Scripture offer an interesting case study for those who work in comparative religious ethics.

To treat Islamic legal thought in the categories of ethics is not a new idea. In an earlier JRE focus on Islam, Kevin Reinhart suggested that students of ethics might find in the texts and arguments associated with Islamic law a rich source for their interests (Reinhart 1983). He argued that careful study of legal materials would contribute more to an understanding of Islamic ethics than would the study of Islamic philosophy or theology. I do not know that we need agree with Rein- hart's rather sharp distinctions between (what he called) "Islamic" and "Islamicate" ethics, but I do think it is true that "ethics," understood in a broad sense as the study of practical justification, has no single analogue in Islam. Instead we find a variety of literary and intellectual genres within which Muslims consider questions of the shape and nature of the good life.

Among these genres, fiqh, or as people have been conditioned to say, "Islamic jurisprudence,"1 stands out as a particularly important discipline, the special interest of which is the discernment of guidance for life through the interpretation of divinely approved sources. Usul al- fiqh, the theory of the "sources of jurisprudence," is the means by which Muslims discuss the interrelations of these sources and the methods of interpretation appropriate to them. The shari'a, or Islamic law, is thus the body of judgments resulting from attention to sources authorized by God as "signs" by which men and women may come to understand the shape of a truly human life.

Attention to al-ShafTi's treatise on usul al-fiqh will indicate something of the specifics of the theory and perhaps will also grant some necessary perspective on its uses and limitations. As al-Shafi'i indicates, usul al-fiqh is crafted in the faith that God, the creator and judge of all things, provides guidance that makes for the happiness of all creatures in this life and the next. The human task is to learn to read the signs by which this guidance is given. When we do so, many things about the good life (usually, the most important things) are clear. But others are not. Thus, even a theory with clear sources, with agreed-upon rules of interpretation - even a theory that can appeal to divine commands - must in the end allow for ikhtilaf "disagreement." Al-Shafi'i's remarks on disagreement are important for the subsequent development of Islam.

1 More literally, fiqh means "comprehension"; usul al-fiqh thus indicates a theory of the sources by which human beings may comprehend the guidance of God.


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Divine Command Ethics in Early Islam 103

1. Al-Shafi'i's Context: the Problem of Guidance in Islam

In his introduction to the translation of the Risala, Majid Khadduri provides a detailed summary of the traditions concerning al-Shafi'i's life and work (Khadduri 1961, 8ff). Most of this information need not be repeated here. It is sufficient to say that the literary presentations of al-Shafi'i's life, which depict him as student and teacher in two of the most important centers of eighth-century Islamic culture (Medina and Iraq), suggest that he was uniquely qualified for the intellectual task which he undertook in his own constructive work, done in Egypt in the early part of the ninth century.

This task seems to have been the development of a systematic theory of guidance which would replace a variety of "local" versions of Islam, thus contributing to a unified (and universal) vision of Islamic life. Schacht (1950), Marshall Hodgson (1974), and others stress the connections of al-Shafi'i with the movement, common in the eighth and ninth centuries, to "Islamize" the territories which had come under Islamic rule following the death of the Prophet in 632. Schacht, in particular, argues that Islamic reasoning in matters of practice was characterized (prior to al-Shafi'i) by a conflict of local traditions. Such diversity seems to have been ill-suited to the needs of Islamic society in several ways. First, the variations among local traditions suggested a denial of that unity which the Qur'an indicates ought to be the goal of humanity under God. Second, diversity in local practice - and ultimately in definitions of legitimate authority - was problematic for an empire in which power was increasingly centralized for the sake of political and economic administration. Finally, some of the local traditions, in context, provided legitimacy for a kind of Arab exclusivity, in which status within the empire - and even within the Muslim community - was tied to Arab patrimony. Persians and others who were converting to Islam in increasing numbers understood all too well that this type of exclusivity was in conflict with the Qur'anic theme of equality and that the local traditions were thus illegitimate from an Islamic perspective.

For both religious and political reasons, pressure mounted to develop ways of thinking about the faith and practice of Muslims which would provide a universal basis for Islamic judgment and would supercede the various local traditions. The Risala of al-Shafi'i exem- plifies one response to this pressure: the development of a new proposal for usul al-fiqh, by which the authority of the Prophet and of texts reporting his words and deeds would be enhanced as a source of interpreting and extending the divine standards revealed in the Qur'an.


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2. Content of al-Risala

The Risala begins with the invocation of God: "In the name of God, the Merciful, the Compassionate . . . Praise be to God (Allah) who created the heavens and the earth, and made the darkness and the light. . ." (57).2 Al-Shafi'i declares that God is gracious and cannot be described, save through His self-revelation: "Praise be to God to whom gratitude for one of His favors cannot be paid save through another favor from Him. . . . Those who describe Him cannot attain to the ut- most of His greatness, which is as He has described Himself [in the Qur'an] and above what His creatures can attribute to Him" (57). God, the Lord of the worlds, is the judge who rewards righteousness and punishes wickedness, according to God's declaration. Most impor- tantly, though, God gives guidance "whereby no one who takes refuge in it will ever be led astray" (57). Considering the context outlined above, the reader understands that guidance (hidaya) - which for al- Shafi'i involves a type of knowledge by which one can comprehend the direction of the straight path or the truly Islamic life - is the central concern of fiqh (the "comprehension" of true guidance) and of the Mus- lim community in al-Shafi'i's time.

Al-Risala provides an outline of the ways in which God provides guidance for humanity. The primary way is al-bayan, the "clear declaration" or statement (67ff.). God, it is said, has made guidance known through various types of declarations. These types may be distin- guished according to the means of declaration. (1) There are, for example, declarations which are given in the text of the Qur'an: that prayer should be performed, that the zakat (alms-tax) should be paid, or that adultery should be avoided, along with the drinking of wine or the eating of carrion (68). (2) There are also declarations which, while established in general terms in the Qur'an, are detailed by the "tongue of His Prophet." For example, the Qur'an declares that one should pray; but statements attributed to the Prophet indicate the required number of prayers. The amount of zakat and the time of payment are similarly specified (68). Further types of declarations are (3) those "which the Apostle of God established by example or exhortation, but in regard to which there is no precisely defined rule from God (in the Qur'an)" (68). (4) Finally, there are declarations which God has commanded creatures to seek through personal reasoning (ijtihad), based on the signs God has given (68).

2 All quotations from the Risala are from the translation by Majid Khadduri published as Islamic Jurisprudence (al-Shafi'i 1961). All editorial insertions in the quoted texts, whether in parentheses or in brackets, are Khadduri's.


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It is possible to make further distinctions among types of declarations, and al-Shafi'i occasionally indicates what these might be in the text of the Risala. Nonetheless, he begins with those already mentioned, and they serve as an outline for his elaboration of a theory of the principles of jurisprudence. In sum, he has already pointed to three of the sources of jurisprudence: the Qur'an, the sunna or "exemplary practice" of the Prophet, and reasoning. He explains the precise meaning and role attached to each of these as his argument proceeds.

2.1 The appeal to exemplary practice

In the context of late eighth-century and early ninth-century Islam, al-ShafiTs outline itself is controversial because he has not mentioned the role of local traditions. Nor has he acknowledged the role of religious specialists who (again in context) develop and sustain the authority of local traditions. Pushing the reader ever so lightly in the direction of his central thesis - that is, that all local traditions must be judged by a universal standard - al-Shafi'i first argues for the necessity of religious specialists, then moves to a discussion of the sources which specialists must employ in their work.

Al-Shafi'i indicates that one should distinguish between a knowledge of divine directives which is "for the general public, and no sober and mature person should be ignorant of it," and a knowledge which "consists in the detailed duties and rules obligatory on men, concerning which there exists neither a text in the Book of God, nor regarding most of them, a sunna" (81 and 82). It is one thing to talk about divine guidance when one is speaking about matters that are well established (for example, the number of daily prayers or the obligation to fast during Ramadan); quite different are discussions of the obligations of Muslims with respect to questions of the administration of territories conquered after the Prophet's death or of treaties made with rulers of non-Muslim territories. The comprehension of basic guidance is a duty of every Muslim; the discussion of more complex issues is, however, the special province of scholars. As the scholars perform their task of inquiring concerning the guidance of God in new and complicated situations, they make it possible for the Muslim community as a whole to fulfill its mission of commanding good and for- bidding evil. The scholars' task is thus not "frivolous." It deserves the support of the community as a whole, and those persons who are not scholars are required to listen to and follow the judgments of specialists-at least, if the specialists' judgments are well-founded.

This brings us to the heart of al-Shafi'i's interest: what makes for a well-founded judgment concerning the guidance of God? The argu-


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ment for the importance of specialists ends suggestively. Al-Shafi'i notes that even the interpretation of the Qur'an, that most eloquent and clear sourcebook of divine guidance, is not an easy matter. Only those who know Arabic well (thus, specialists) are able to distinguish consistently and properly the various types of declarations God makes in the Qur'an and thus to discern the guidance of God. The meaning of some Qur'anic texts is self-evident, but others can only be understood with reference to special contexts in the Prophet's life; still others can only be interpreted if one understands that they are not to be taken explicitly (or perhaps, literally). Finally, there are Qur'anic texts that can only be understood by reference to the sunna or exemplary practice of the Prophet.

Al-ShafiTs challenge to the local traditions is now explicit. No scholar of his day would have disagreed concerning the importance of religious specialists for the Muslim community. Nor would anyone have disagreed about the need to interpret certain verses of the Qur'an in the light of the Prophet's circumstances or according to implicit meanings of words. However, the stipulation that the only form of "exemplary practice" approved as a source of guidance is the sunna of the Prophet overturns a well-established model. For sunna, according to one standard use, simply referred to a well-established practice among a group of people. Specialists working in one of the local traditions could, without difficulty, argue for a particular interpretation of a Qur'anic text on the basis of the sunna of the people of Medina or the sunna of the people of Iraq. Al-Shafi'i places limits on such appeals with his stipulation that the only sunna authorized for use in matters of guidance is the sunna of the Prophet.

Al-Shafi'i defends this view in a section on the obligation of humanity to accept the Prophet's authority. "God has placed His Apostle [in relation to] His religion, His commands and His Book - in the position made clear by Him as a distinguishing standard of His religion by im- posing the duty of obedience to him as well as prohibiting disobedience to him. He has made his merits evident by associating belief in His Apostle with belief in Him" (109). He cites several Qur'anic texts in support of this (for example, 4:169 and 24:62), to the effect that "Thus [God] prescribed that the perfect beginning of faith, to which all other things are subordinate, shall be belief in Him and then in His Apostle. For if a person believes only in Him, not in His Apostle, the name of the perfect faith will never apply to him until he believes in His Apos- tle together with Him" (110). As the Islamic declaration of faith (the shahada) puts it, "there is no God but God, and Muhammad is the messenger of God."


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In connection with al-Shafi'i's argument, it is worth noting that the use of this declaration as a test of faith is itself a practice established by the sunna of the Prophet. As al-Shafi'i has it, God has elected Muhammad to be the vehicle of revelation, not only as the deliverer of the Qur'an, but as the one who embodies the divine wisdom in his acts, words, and deeds. Those who wish to live the life of the rightly guided may be assured that Muhammad is an adequate example, since God has declared (in the Qur'an) both that He commanded the Prophet to carry out (as well as deliver) the divine commands and that He has "prevented those who attempted to lead [the Prophet] astray, and informed them that they could not hurt him at all" (118). The Prophet is thus "elevated" (ma'sum) above other creatures, in the sense of having a divine protection corresponding to the mission God gave him. By God's choice and directive, he is understood to be a kind of "derivative" authority, standing alongside the Qur'an as a source of guidance for the community. Al-Shafi'i writes:

So God imposed the obligation upon His creatures to obey His Apostle, and He instructed them that [obedience] to him is obedience to Him.

The sum-total of what He instructed them is the duty to obey Him and His Apostle, and that obedience to the Apostle is obedience to Him. He [also] instructed them that He imposed the duty on His Apostle to obey His order, Glorious be His praise [116].

2.2 Clarification without abrogation The Prophet guides humanity by his sunna. This sunna, says al-

Shafi'i, is related to the Qur'anic declaration in several ways (120ff.). First, whatever is clearly specified in the Qur'an is confirmed by the practice of Muhammad - this must be true because God ordered the Prophet to "practice what he preached" and saw to it that the Prophet did so. Secondly, any ambiguous declarations are clarified by the sunna of the Prophet. For example, the Qur'anic command to establish right worship is clarified by the Prophetic sunna specifying the five daily prayers, their times of performance, and the appropriate li- turgical form for them. Similarly, it is the sunna of Muhammad which clarifies whether a given verse in the Qur'an is "general," as with "establish right worship," or "particular," as with the declarations on in- heritance (for example, in Q. 4.). Finally, the sunna of God's messenger may establish obligations independently of the Qur'anic text. An example would be in the case, cited in al-Shafi'i's discussion of the relations between God's prohibitions and the Prophet's, in which Muhammad is said to have forbidden eating from the top of a dish. There is no Qur'anic text on such a matter, the declaration of


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the Prophet being sufficient to establish the practice ("Because God's blessing descends from the top . . .") (176-77).

Such independence does not, however, mean that the sunna of Muhammad will ever contradict the Qur'an. This is the point of al- ShafiTs discussion of the principle of naskh, "abrogation" (123ff.). This principle is enshrined in the Qur'anic text, most notably in the verses pertaining to the qibla or direction of prayer. At 2:106, the Qur'an says: "Such of our revelations as We abrogate or cause to be forgotten, We bring (in place) one better or the like thereof. Knowest thou not that God is able to do all things?" Change in directives, then, is part of the divine plan to provide guidance to believers.3

For al-Shafi'i, however, "abrogation" must be carefully delimited. To begin with, the sunna of the Prophet cannot be a legitimate source of abrogation in relation to the Qur'anic text. "God has declared that He abrogated [communications] of the Book only by means of other communications in it . . ." (123). The only abrogation of a Qur'anic verse, that is, is another Qur'anic verse. The Prophetic sunna follows from the Book, as confirmation, explication, or extension. To say otherwise would place the Prophet in an improper position, since his authority does not extend to changes in the Qur'anic text. God alone speaks therein, and the Prophet cannot change the Book of his own accord. Muhammad's authority is derivative, and thus it is appropriate for God to reserve to God's self the right to abrogate God's Speech (124).

It is also appropriate to say, however, that nothing can abrogate the sunna of the Prophet except another sunna. This is so, first of all, because the practice of the Prophet is "elevated" to the status of "rightly-guided" by God's election of him. This being the case, no other practice of human beings can supersede that of Muhammad - whether it be that of Medina, Iraq, Syria, or the Prophet's close companions and their immediate successors. Neither can the Qur'an abrogate the sunna - or perhaps it is more appropriate to say neither will the

3 As indicated in Islamic tradition, these verses were revealed in relation to strug- gles between Muhammad and certain Jewish-Arab tribes in Medina. As the Prophet struggled to secure the position of the Muslim community, and also to clarify the meaning of Islamic revelation, he first authorized his followers to pray in the direction of Jerusalem. Such a practice expressed Muhammad's understanding of the continuity between the Islamic community and earlier monotheisms. When the tribes in question refused to acknowledge such continuity, however, the Qur'an authorized prayer in the direction of the Ka'ba at Mecca, a symbol of Arab piety. In political terms, such change signified the independence of Islam, which was further developed through the notion that earlier monotheistic communities had, over time, corrupted the original message of their prophets. A close reading of Sura 2 (al-Baqarah) is instructive in these matters.


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Qur'an abrogate Muhammad's practice, since God's declaration that a previous practice is unacceptable would indicate that the Prophet, in accord with his commission, would establish a sunna to confirm the new revelation (125-28). While al-Shafi'i does not cite it here, the qibla would seem a good example of this, in that the alteration in the direction of worship is confirmed in both the Book and the sunna of Muhammad. Qur'an and sunna, God and Prophet, work in concert for al-Shafi'i. This is what he means to secure with such careful remarks on abrogation.

The affirmation of this working in concert is also the purpose of al- ShafTi's discussion of various duties. For this essay, the example of pilgrimage (al-hajj) can suffice to illustrate al-Shafi'i's reasoning (166-67). The duty of performing the pilgrimage, he says, has been imposed by God on all who can perform it - that is, on all who have the means. But what are the "means"? When is one considered to be in a position such that this act of devotion becomes a duty? "It has been related from the Prophet that the means . . . consists of the necessary provisions and transport. . ." (166).4 Thus, the sunna is invoked to clarify the "particular" in the "general" Qur'anic command. Further, the sunna specifies the way in which the pilgrimage ought to be performed; the Prophet

specified the time of Pilgrimage, how to pronounce the formula of fulfil- ling [the duty], and what is decreed . . . , and what should be avoided in the wearing of garments and the use of perfumes as well as other procedural matters ... at the [sanctuary] of 'Arafa and the [passing of the night at] Muzdalifa, and the throwing [of the stones at Mina], the shaving [of the head], the circumambulation [of the Ka'ba] and other matters [166-67].

Continuing the argument, al-Shafi'i indicates that the Prophet's sunna, already acknowledged in this case, must be acknowledged in all other cases. He repeats previous arguments meant to establish the authority of the Prophet's practice alongside the Qur'an and to support the claim that "God has not given any other . . . such power save His Apostle, and that the word and deed of every person should be in conformity with the Book of God and the sunna of His Apostle" (167). Any opinion, however expert, which can be demonstrated to contradict the sunna must be abandoned, just as would be the case if it were demonstrated to contradict the Qur'an. "For what is more obligatory on men than that they should obey the Prophet, an obligation indicat-

4 Khadduri indicates that in Kitab al-Umm al-Shafi'i defines capacity more broadly (al-Shafi'i 1961, 166 n. 55).


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ing the place in which [God] placed him in relation to His revelations, His religion and the followers of His religion?" (167).

Al-Shafi'i deals similarly with questions about marriage (173ff.)5 He begins with a judgment that would have been uncontroversial for jurists of his day: intercourse between man and woman is prohibited save in two cases: marriage (nikah) or ownership (wati', related to slavery). These "are the two ways made lawful by God" in the Qur'an (174). He then asks, what indicates the limits of the prohibition - or what conditions are necessarily characteristic of marriage, so that intercourse can become permissible (slavery evidently being clear)? This question is answered by the sunna. Four conditions are established by the Prophet: consent by the woman; the same by the man; a guardian who arranges the marriage for the woman; and witnesses. Any union failing to meet any one of these conditions is invalid because "it would not be in accordance with the sunna laid down by the Apostle for a valid marriage" (174). Other acts, such as the payment of a bride-price or dowry, are commendable, but their presence or absence does not affect the validity of the union. These rules concerning the status of marriage and the permissibility of intercourse are equally applicable "to honorable as to dishonorable women, for each one is equal to the other in all matters that are lawful and unlawful, obligatory or unobligatory, punishable, or unpunishable" (174).

Further, Qur'an and sunna specify other conditions which would make an otherwise valid marriage invalid. According to the Qur'an, marriage to a sister-in-law is prohibited, and a man may have no more than four wives at any given time. This restriction on the number of wives is reinforced by the Prophet's words. Certain alternative types of marriage are prohibited on the grounds of the Prophet's sunna alone - marriage to the aunt of one's wife, for example; or marriage to a woman during her 'idda or waiting period following divorce or the death of a spouse. Further prohibited are al-shighar, a marriage agreement between two men involving an exchange of women in their custody, and al-mut'a, "temporary" marriage, as well as marriages during the performance of the pilgrimage. Other examples could be given, but these serve to reinforce the picture al-Shafi'i wishes to give of the relations of Qur'an and sunna (174-75).

5 Perhaps this is the point at which one should note that the Risala does not stipulate the five categories of acts referred to in later fiqh: obligatory, recommended, permissible, reprehensible, forbidden. On these, see Schacht 1964; Coulson 1964. Al- Shafi'i speaks of obligations, permissions, and prohibitions, but he does not develop them systematically; he does not even mention the others. For a discussion of these categories in comparison with Western thought, see Carney 1983.


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2.3 Evaluating reports of the Prophet's practice Al-ShafiTs emphasis on the sunna of the Prophet has taken him a

long way from the local traditions. Now he must deal with an obvious problem. Local traditions rest on a shared sense of the community's past works, and the reliability of specific appeals can be assessed by reference to communal memory. The Prophetic sunna is binding on a large, diverse, and dispersed community. How can the Muslim community assure the validity of appeals to the Prophet's practice? The answer, for al-Shafi'i and for those of his peers who thought in similar ways, is that the sunna of the Prophet is known by hadith reports - narratives relating the words and deeds of Muhammad.6 A typical example, often cited by al-Shafi'i, is as follows:

. . . Sufyan [b. 'Uyayna] told us from Salim Abu al-Nadr from 'Ubayd b. Abi Rafi' from his father that the Prophet said: "Let me find no one of you reclining on his couch, who, when confronted with an order of permission or prohibition from me, says: 'I do not know [whether this is obligatory or not]; we will follow only what we find in the Book of God'" [187].

This report, of course, serves to reinforce al-Shafi'i's argument about the duty to obey the Prophet. It may also serve to indicate something about the nature of hadith reports as the source of sunna.

The hadith report cited above has, as do all others, two parts: al- main (the text) and al-isnad (the chain of transmitters). The former establishes a claim about the sunna with reference to something the Prophet said or did. The latter establishes the authenticity of the claim. In the case cited, al-Shafi'i regards the report as "sound," since the chain of transmitters is complete (that is, goes back to the Prophet without any gaps) and the people named as transmitters are all considered trustworthy witnesses.

This seems a simple enough way to establish the Prophetic sunna. Hadith criticism is not always so easy, however. For a number of reasons, the authenticity or "soundness" of particular reports may be unclear. One might, for example, come upon a hadith in which the chain of transmitters is complete, and all the witnesses are trustworthy - yet the text of the report presents the words or deeds of the Prophet in a way that appears to contradict the Qur'an. In other cases, one finds hadith that appear to contradict one another - in effect, the Prophet answering the same question in ways that cannot be reconciled. Fi- nally, one might have a report providing the only clear justification for

6 I recognize that the use of "hadith reports" is redundant, but it seems more felici- tous than the Arabic plural ahadith.


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a judgment deemed by religious specialists to be important for the Muslim community, yet its authenticity is questionable due to a la- cuna in the chain of transmitters. What does one do?

The import of these problems for al-Shafi'i's position is clear. For the sunna of the Prophet to play the role he desires, such difficulties must be resolved, or their importance minimized. Al-Shafi'i himself does not have a fully satisfactory set of responses. On the question of the hadith text that seems to contradict the Qur'an, for example, he simply insists that the report is unsound because the Prophet would never say or do anything against God's book. The example of contra- dictory hadith draws the response that there must be something missing: either one report comes at a later time, thus abrogating the other; or there is something about at least one of the texts that makes it apply only in a particular, special context. Religious specialists are charged with trying to supply the missing knowledge. Finally, the "single-person" hadith should be considered sound, because the transmission of Prophetic sunna in certain cases is too important to be bound by neat, precise rules of evidence.

In all this, al-Shafi'i seems to follow the principle that since prophetic sunna is authorized by God, all difficulties are susceptible of resolution. Whatever the wisdom of this suggestion, al-Shafi'i's insis- tence on the importance of sunna, and thus of hadith, provided the impetus for later specialists who became acknowledged experts in hadith criticism. Indeed, within a half century or so after al-Shafi'i's death in 820, there was consensus among scholars that several great collections of hadith - those compiled by al-Bukhari, Abu Dawud, Ahmad ibn Hanbal, and others - should be considered authoritative and exhaustive guides with respect to the sunna of the Prophet. Thus questions about the sources of sunna could be considered "closed" (Schacht 1950; Goldziher 1971; also Rahman 1962).

2.4 Guidance discovered by reasoning

In al-Shafi'i's theory, Qur'an and sunna are solid, text-based standards for practical judgment. As he admits, however, there are some matters for which a jurist does not have a text. What is one to do in such cases?

Prior to the work of al-Shafi'i, scholars considered judgments sound if they were reliably based on localized sunna. The discernment of such a sunna had to do with the tradition of the jurists in a given area, such as Medina or Iraq. This tradition could be spoken of as ijma', the "consensus" of the scholars of fiqh in any given area. As I argued earlier, al-Shafi'i's elevation of prophetic sunna seems to have been


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meant to counter these local tendencies, providing a uniform way of thinking about the nature of guidance and presenting a systematic opportunity which could serve all those wishing to follow the straight path.

Given this tendency toward unity, it seems only natural that al- Shafi'i's first answer to the question of how one makes judgments when there is no textual evidence should appeal to the judgments (indicated by common practice) of the Muslim community - the public "at large," not the community as represented by its scholars. "Consen- sus," in al-Shafi'i's sense, seems to be a simple acceptance of the authority of the majority of the Muslims. Such acceptance may be a matter of necessity ("we accept the decision of the public because we have to . . ."); on the other hand, it may rather be a matter of acknowl- edging the community's place in the divine provision of guidance: "we know that wherever there are sunnas of the Prophet, the public cannot be ignorant of them, although it is possible that some are, and we know that the public can neither agree on anything contrary to the sunna of the Prophet nor on an error" (286). In one sense, then, the public knows the sunna, even if it cannot always trace it via hadith reports; further, there is implied a kind of charismatic authority for the Muslim community, which prevents the community from ever agreeing on an error.7

It seems difficult to say whether al-Shafi'i's "consensus" is more a matter of resignation or of a desire to affirm the community's role in God's plan. Overall, Noel Coulson seems right when he says that al- Shafi'i's "consensus" is essentially intended to overcome the authority of localized sunna.8 On the other hand, given political developments

7 Significantly, al-Shafi'i does not cite this principle on the basis of hadith. Schacht (1950) notes that it does not appear as such until the time of the canonical collections, and then it appears in wording much like al-Shafi'i's, suggesting that it is derived from Risala or some other legal source. This provides support, of course, for Schacht's depic- tion of the notion of prophetic sunna as a "pious fiction." Later fiqh looked on ijma' in less ambiguous terms than did al-Shafi'i. For an interesting discussion of ijma', though perhaps more noteworthy for its normative than historical dimensions, see Hourani 1985, 190-226. See also Hurgronje 1957; Hurgronje's famous comment that ijma1 is the most important authority in fiqh does not seem to be true for al-Shafi'i, though it may be for the later schools.

8 Coulson writes: "Denying that the agreement of the scholars of any particular lo- cality had any authority, [al-Shafi'i] argues that there could be only one valid consensus - that of the entire Muslim community, lawyers, and lay-members alike. Obviously [al-Shafi'i] did not regard such consensus as in any way an important source of law; its scope was in fact restricted to matters which, like the performance of the daily prayer, affected each and every Muslim personally. . . . [H]e also realized that the formation or ascertainment of such an agreement had ceased to be practical once Islam had spread


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that occurred after his death, al-Shafi'i's words loom very large: "He who holds what the Muslim community holds shall be regarded as following the community, and he who holds differently shall be regarded as opposing the community he was ordered to follow. So the error comes from separation; but in the community as a whole there is no error concerning the meaning of the Qur'an, the sunna, and analogy" (287). One does not need to look very long at this statement in order to recognize certain tendencies which would later characterize ahl al- sunna wa al-jama'a, the "people of the sunna and of the community," especially vis-a-vis the Mu'tazila (those who "separated").9

Whatever the precise nature of al-Shafi'i's support for the notion of consensus (and one notes here, following Schacht [1950], that he sub- ordinates the authority of consensus to Qur'an and sunna, in contrast to rankings of later theories of jurisprudence), he evidently thinks it ranks above qiyas, a kind of analogical reasoning. For al-Shafi'i, qiyas is weaker than consensus because it is inevitably a source of disagreement (288ff.).

Qiyas is a kind of istidlal, or "reasoning from indicators" such as the texts of Qur'an and sunna. It is the only form of ijtihad ("personal reasoning") or istishan ("juristic preference") which al-Shafi'i will allow. It is of two types, the one stronger than the other (290). The first type of qiyas involves an analogy established by the clear similarity of a case to a textual precedent - as in the case of children whose father has grown too old or too weak to provide for himself. The father, says al-Shafi'i, was obligated by divine declarations indicated in Qur'an and sunna to care for the children. Now, by analogy, the children are required to care for their father, but they are not supposed to undergo

outside the boundaries of Medina. His doctrine on this point is therefore essentially negative, designed to the end of rejecting the authority of a local or limited consensus and thus eliminating the diversity of law which resulted therefrom" (Coulson 1964, 59). N.B. also al-Shafi'i's comments: "When the community spread in the lands [of Islam], nobody was able to follow its members who had been dispersed and mixed with other believers and unbelievers, pious and impious. So it was meaningless to follow the community [as a whole], because it was impossible [to do so], except for what the [entire] community regarded as lawful or unlawful [orders] and the [duty] to obey these [orders]" (287). This is, however, immediately followed by the statement that error comes from separating oneself from the community, while the community as a whole commits no error "concerning the meaning of the Qur'an, the sunna, and analogy." Schacht's comment (1950, 91) to the effect that al-Shafi'i's doctrine ofijma' remains in "an uneasy relationship" with his emphasis on prophetic sunna is to the point.

9 Al-jama'a, which means "the gathering" or "the community," may also mean "the majority." Here, the sense may be of "the consensus," since the point of devotion to the community is that agreement among the Muslims is a source of legitimation. Al-ijma' is from the same root.


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loss to themselves in doing so. Perhaps more clearly, the analogy is stretched to include the support of the retired by "him who is rich and [still] active." The method of analogy is thus the attempt to see a similarity in two cases, or an equivalence of principle Cilia), with the principle here being something like "the strong ought to care for the weak" (31O).10

Needless to say, the discernment of an underlying principle for analogical use is not an easy thing.11 Analogical deduction is a tricky form of reasoning, even in the best of circumstances. Thus, the second form ofqiyas, which involves situations where analogies may be established with several cases, is weaker and liable to yield disagreement. Al-ShafTi does not provide examples of this form, perhaps feeling it is sufficient simply to acknowledge it as a factor which weakens the authority of this source of guidance. Indeed, in one sense, the important virtue in cases like this is the continued effort in search of the right answer. That is, finally, the sense of ijtihad, which can mean "effort" as well as "personal reasoning." One may, when praying in the desert, find it difficult to discern the direction of prayer - may, in fact, be ob- jectively wrong in the judgment one makes. Nevertheless, one will be "right" in the sense that one did the best one could to fulfill the duties set forth by God. Similarly, reasoning according to the texts which are authoritative in hopes of discovering the guidance of God, one may nevertheless reach a decision which (unknown to one's conscience) is wrong; yet one will be right, in terms of sincere or conscientious effort (295-303 and 333-52). Such a benign attitude is not to be extended, of course, to cases in which one misinterprets because of laziness or lack of qualifications, or in which one ignores clear textual evidence. That is the basis both for al-Shafi'i's restriction of the use of analogical deduction to certain well-qualified jurists and for his repeated statements to the effect that all judgments must be subordinate to the texts of Qur'an and sunna: "On all matters concerning which God provided clear textual evidence in His Book or [a sunna] uttered by the Prophet's tongue, disagreement among those to whom these [texts] are known is unlawful" (333). However, in cases where the textual evidence is not clear and/or analogy must be used, al-Shafi'i says: "I do not hold that [disagreement] of this kind constitutes such strictness as that arising from textual [evidence]" (333).

10 Some translate 'ilia as "grounds" (e.g., Hourani 1971). 11 Brunschvig (1970) takes this to be the central problem of fiqh.


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3. Patterns of Reasoning in al-Risala Al-Shafi'i's version of the principles of jurisprudence stresses the

importance of texts which are repositories of the declarations of God, or extensions thereof. In that sense, the theory is suggestive of a theory of divine commands. One notes in this regard his statement that "it is not permissible to regard anything as a duty save that set forth in the Qur'an and the sunna of His Apostle," and further his use of the Qur'anic text: "When God and His Apostle have decreed a matter, it is not for a believing man or a woman to exercise a choice in a matter affecting him; whoever opposes God and His Apostle has deviated into manifest error" (33:36; cited, 112). Of course, neither of these statements is unequivocal grounds for attributing to al-Shafi'i the view that values are ultimately established by God's command. It could be, for example, that though he believes values are objective - that is, "built into" the structure of things and theoretically knowable apart from revelation - he nevertheless harbors a deep suspicion of the trustworthiness of human reason and consequently stresses the textual basis of (right) practical reasoning.

The Risala, however, does not appear to suggest such a position. Whatever al-Shafi'i might have said in connection with those verses of the Qur'an which suggest that natural reflection can lead to knowledge of God and of the good, his emphasis seems to be on "deductive reasoning" (istidlal) based on textual evidence. Indeed, without making this explicit, he seems to believe that all reasoning in matters of religion and morality is deductive - one follows the "signs" or "indicators" given in nature, history, and the self to a knowledge of the power of God and of one's responsibility before God; similarly, one follows the signs of Qur'an and sunna in determining the nature of the straight path and thus of the truly Islamic life. This would later be the explicit position of the theologian al-Ash'ari (d. 935), who would style himself a follower of al-Shafi'i. In this way, a certain knowledge of God enabling recognition of true revelation is posited as possible for human beings apart from divine commands; still, all knowledge relating to values and thus to ethics is based on the declarations of God, and, by God's choice, of the Prophet.

3.1 Obedience as the norm of practical reason

It has been argued by David Little and Sumner Twiss, among others, that divine command appeals may take several forms.12 A

12 Little and Twiss 1978; see also Quinn 1978. Little and Twiss use the language of "authoritarian" appeals to indicate what I am calling appeals to divine commands.


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definist appeal is the simplest form of divine command ethics; value is determined solely by reference to commands or statements issued by a superior (here, God) and is justified by their point of origination (in God). There are indications of such an argument in the Risala, most obviously in the notion of abrogation, whereby God may replace one set of directives with another. A portion of al-Shaf i's discussion of abrogation is instructive: referring to the Qur'anic case in which the direction of prayer was altered by God's declaration in Sura 2, he notes that God first commanded the Prophet to pray facing Jerusalem and that this was obligatory. Then the declaration was abrogated, the new directive being that he pray facing the Ka'ba, so that it "became unlawful in accordance with a textual command to turn either in the direction of Jerusalem or to any other direction than that of the Sacred House" (133). The conclusion of al-Shafi'i is that each direction "was valid in its time"; that is, as long as God declared the direction of prayer to be Jerusalem, it was so, but when God's declaration indicated the direction of worship as Mecca "it became obligatory" (134).

Similarly, there are suggestions of an appeal to "proprietary entitlement," whereby the commands of an authority are justified in view of a notion of ownership or governance. In the case of the Risala, such appeals are usually implicit, as in the use of "Lord" and other meta- phors which suggest God's ownership of and sovereignty over the creation. God made all things and rules them all, and it is God who determines their destiny. To question God's decisions does not seem to occur to al-Shafi'i: "God indeed created mankind for whatever His established knowledge desired in creating it and for whatever [its destiny] should be. There is no reversal at all of His judgment, He being swift of reckoning" (123). God distributes rewards and punishment according to God's declarations, that is, according to what has been described in God's self-revelation.

There is in this passage, however, the suggestion of a connection between God's will (God "created mankind for whatever . . . [God] desired") and God's knowledge. The passage continues: "And he revealed to them the Book that explains everything, as a guide and a mercy. In it He laid down some duties which He confirmed, and others which He abrogated, as a mercy to His people so as to lighten their burden and comfort them . . ." (123). God reveals God's plan, in conjunction with the good of God's creatures. In another passage, al- Shafi'i refers to God's clarification of God's permissions and prohibitions, "as He knows best what pertains to their felicity by avoidance of it in this world and in the hereafter" - that is, God knows those things which will make for happiness (64). There is in such passages the suggestion of an appeal to "creator's rights," in which God's authority to


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command is supported by claims of a special insight which is God's as the "inventor" of humanity and of the world in which humanity lives. Such an appeal is not entirely separable from notions of proprietary entitlement, since God the Creator is also God the Lord; there is, according to al-Shafi'i, a kind of sovereign decision about the order and purpose of the world, one which cannot be, or at least never is, ques- tioned. This decision includes the idea of the purpose of creation, of judgment and, in some sense, of human destiny. Nevertheless, the appeal to knowledge and to human welfare suggests something other than simple appeals to ownership. God, the Lord, knows the creation. God knows what makes for the happiness of creatures. Out of mercy, God reveals this knowledge to human beings via the declarations recorded in Qur'an and sunna.

The reference to welfare in connection with this appeal raises questions about the role of ends, or of teleological appeals, for al-Shafi'i. Suffice it to say that there is no indication in the Risala that human agents are encouraged to think of the possibility of a "good" apart from the "right" commanded by God. The notion of welfare is inextricably linked with the appeal to creator's rights - God "knows best," as al- Shafi'i is wont to say. Thus, from the standpoint of human beings, the focus is on obedience to the right. That the Lord of the worlds makes declarations to humanity concerning the permitted and the prohibited is a "mercy" - a kind of "divine paternalism" by which God, the Benefi- cent and Merciful One, shares the wisdom belonging to the Creator. From the standpoint of humanity, "nothing good is obtainable save by God's help," including knowledge of the straight path (65). However one formulates the premise behind it, the principal norm of practical reason for al-Shafi'i becomes "obey God's commands."

3.2 Ascertaining the content of commands

The way in which one grasps these commands is by reading and interpreting texts - or by attending to those who read and interpret them. Thus, the first category of God's commands comprises those declarations made in the Qur'an: right worship, zakat, the prohibition of adultery, and so on (68). Of course, as we have seen, not all Qur'anic verses are equally clear, so that questions arise concerning the times of prayer and its proper performance, or the amount of zakat and its time of payment. Hadith reports - which confirm, extend, but never contradict the Qur'an - thus constitute a second authority to which practical reason refers. His reliance on such textual authorities suggests a mode of reasoning akin to "direct deduction." That is, permissions and prohibitions are plainly set forth for those who know the


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texts. That which is left for humanity is to follow the declarations in the texts.

However, unfortunately (from al-ShafTi's point of view), there is not always a text which speaks clearly on questions which arise. In this case, one has two options, depending on the nature of the case. First, in the absence of any relevant text, one must follow the consensus of the Muslims. As noted, al-Shafi'i means here the entire community - not just the jurists of a particular locale. The acceptance of consensus can be a simple "majority rules" proposition or a real provision of God for the extension of guidance. In consensus, it seems there is an idea of deduction which rests not on texts but on observation - a mix, one might say, between direct and interpretive modes of apprehending the divine commands.

The second option, in cases where there is no clear text, is clearly interpretive. It is qiyas, or analogical reasoning, in which those who are qualified seek to discover a relation of principle between an authoritative text and a situation not directly covered therein. There are stronger and weaker analogies, depending on the number of prece- dents which appear to be analogous. As a source of authority in practical reasoning, however, analogical deduction creates problems. It is an invitation to disagreement and thus lacks the strength of more direct modes of deduction.

We may summarize al-Shafi'i's argument as follows:

1. God created human beings and knows the type of behavior that makes for their happiness.

2. Human beings should obey God's commands. 3. God's commands are revealed in the Qur'an. Therefore, human

beings should always follow the Qur'anic declarations. 4. God has chosen Muhammad as His Prophet and has declared in

the Qur'an that the Prophet's judgment is to be followed. There- fore, human beings should follow the sunna of Muhammad.

5. If there is no explicit guidance in the Qur'an or in those texts reporting the sunna, then one must follow the consensus of the community, which "can neither agree on anything contrary to the sunna of the Prophet nor on an error."

6. In the absence of clear texts and also of a clear consensus, one should use analogy as a kind of "reasoning from the signs," that is, from the texts which God has provided.

One might complete the picture with the doxographical profession that in adhering to these sources, in their proper order and according to the rules of interpretation, one will grasp that guidance "whereby


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no one who takes refuge in it will ever be led astray," a guidance which provides for every conceivable situation in which human agents may find themselves (57; 66). Statements 3 through 6 provide, in descend- ing order of authority, the means of ascertaining the declarations by which God makes known the straight path.

4. The Limits of al-Shafi'i's Theory At this point, it is useful to return to al-Shafi'i's comments on ikhti-

laf or "disagreement." Al-Shafi'i's purpose in Risala is the resolution of questions about guidance; his discussion of the nature and interrelations of the sources of fiqh is intended to serve that purpose. Al- Shafi'i writes in the faith that God provides guidance for every situation human beings encounter; he believes his contribution to be a complete and universal system by which human beings can discern God's guidance. The principle of obedience to divine commands, the sources by which these are known, and the rules for interpreting the sources are clear. Yet al-Shafi'i admits the possibility of disagreement in matters of fiqh.

4.1 Legitimate and illegitimate disagreement

Disagreement is to be expected not only because of human intransi- gence, but because the sources themselves are not always clear. There are two kinds of ikhtilaf, according to al-Shafi'i; one kind is prohibited, the other is not. As one might expect, he draws the line between these on the basis of a revealed text. The first he cites is 98:3: "Concerning [His] disapproval of disagreement, God said: 'Those who have been given the Book did not become disunited until there had come to them the Evidence'" (333). The second is 3:101: "And He said: 'Be not like those who became disunited and went different ways after the Evi- dences had come to them'" (334). As al-Shafi'i sees it, these verses establish a principle by which one may distinguish prohibited from permitted disagreement. Wherever "the Evidence" has appeared in the form of divinely authorized declarations, disagreement is not permitted. Where the texts bearing those declarations are unclear, however, disagreement is allowed.

Al-Shafi'i then provides several examples, but for our purposes, one will suffice. According to Qur'an 2:228, "Divorced women shall keep to themselves for three periods." The word "periods" translates aqra1 (plural ofquru*), which is the focus of unclarity for al-Shafi'i. He notes that some traditions attributed to those close to Muhammad indicate that qurue means "purity," indicating that the requirement for a divorced woman wishing to remarry is to wait for a prescribed period of


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time Cidda) equal to four months and ten days. Other traditions indicate that quru' refers strictly to the menstrual period, so that once a divorced women has menstruated three times (thus proving she is not pregnant by her former husband), she is free to remarry. Al-ShafTi describes what he takes to be the reasoning behind both positions, then gives his own rationale to support those who interpret quru' as purity. "Thus the opinion of him who holds that aqra' means [periods of] purity is closer to the meaning of the Book of God, and the language is clear as to the meanings of these words. But God knows best!" (336-37).

At this point, al-Shafi'i legitimates what we might call "juridical" disagreement. Muslims who agree on the sources through which guidance is found and on certain principles of interpretation governing the use of those sources, can nevertheless disagree in matters of practical judgment. No one knows the divine commands in every detail - at least, not according to al-ShafiTs theory. In this regard, he points the way toward a certain ecumenism in matters of judgment that became the rule in the Islamic juridical tradition. The fact that a variety of "schools" of jurisprudence (madhdhahab) would come to be accepted as legitimate illustrates al-ShafiTs notion. In principle, an ordinary Muslim may attach him/herself to one of the recognized schools and may order his/her contracts, will, and the like according to the judgments of scholars (ulamac) recognized by that school. Scholars of the Shafi'i, Maliki, Hanafi, or Hanbali schools may disagree with one another.13 They nevertheless recognize one another as participating in a common tradition of practical judgment. As Khaled Abou El Fadl points out in a companion essay in this issue, the "tradition" agreed upon by scholars of fiqh has to do with the establishment of a common set of sources and standard modes of reasoning. When it comes to particular judgments, the various schools may represent, broadly speaking, diverse approaches to ongoing problems. Even within the schools, judgments are often situation-specific.

In matters of specifics, then, al-ShafiTs theory recognizes the possibility of legitimate (or at least permissible) disagreement. He presumes, of course, agreement on major issues. The acknowledgment of limits is there - an acknowledgment that was not universally popular with al-ShafiTs contemporaries. As we read Risala on these matters, al-Shafi'i is presented in a situation of dialogue with a rival. It is obvious that the rival is uncomfortable with the notion of legitimate disagreement in matters of fiqh and would like to press al-Shafi'i

13 More recently, jurists of these four (Sunni) schools have been willing to include the Ja'fari or Twelver Shi'i madhdhab also.


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for a revision of his theory. Recall here al-ShafiTs context. If one of the purposes of usul al-fiqh is a unified theory of guidance for Mus- lims, then the possibility of legitimate disagreement is a weak point. From al-ShafiTs point of view, however, the acknowledgment of differences is a part of wisdom.

4.2 Disagreement in the political realm

On other matters, al-Shafi'i may or may not have been so wise. Po- litically, for example, his theory played a part in one of the greatest controversies of ninth-century Islam. The struggle between the Ab- basid Caliphate and the ahl al-hadith ("people of the hadith"), which reached its peak in the period of the Mihna (833-47), referred in part to the assertion (so crucial to al-ShafiTs version of usul al-fiqh) that guidance was to be found in attending to the declarations of God in the Qur'an and the sunna of the Prophet. The reverse side of al-ShafiTs thesis was that declarations or commands based on other sources could not be considered obligatory for Muslims. When Ahmad ibn Hanbal (d. 855) refused to acknowledge the authority of the Caliphal Inquisition in a matter pertaining to the nature of the Qur'an, he did so in a way perfectly consistent with al-ShafiTs thought: since neither the Qur'an itself nor the Prophet made a clear declaration on the matter, it was not proper for the Caliph to require obedience (Kelsay 1990).

The issue here is the legitimacy of political disagreement between Muslims, and the question was whether the ecumenism extended by al-Shafi'i for juridical ikhtilaf could be extended to matters of politics. Al-Shafi'i proposed to unite the Muslim community by means of agreement on the sources of jurisprudence. In terms of ninth-century Is- lam, however, one could say that one Muslim's unity was another's heresy. Faced with a Caliphal Inquisition which almost all Muslim historians agree was inappropriate, Ahmad ibn Hanbal asserted that there were limits on human authority. Even a Muslim ruler must respect the "limits set by God." No Muslim can bind the conscience of another in matters where divinely authorized texts are unclear.

When the Caliph al-Mutawakkil ended the Mihna in 847, certain aspects of al-ShafiTs theory became a part of "establishment" Islam. From one point of view, this created unity among Muslims: al- Mutawakkil's policies meant that the authority of prophetic sunna, made known through hadith reports, was now a part of the consensus of "official" Islam. Jurists whose rulings took this into account received support and backing from the Caliph.


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At the same time, this meant that jurists and groups of Muslims who did not share al-Shafi'i's views could be seen as dissenters, sepa- ratists, even heretics. For example, those who focused on the Qur'an and independent reasoning (thus downplaying the authority ot sunna, as did certain Mu'tazili thinkers) fell outside the scope of accepted Is- lamic practice. So did the various Shi'i groups, whose position could be understood as extending the notion of authoritative sunna to include the example of persons other than the Prophet. In effect, al- ShafiTs assertion of the authority of prophetic sunna served (in the hands of al-Mutawakkil and his successors) as a criterion to delineate the boundaries of legitimate Muslim discourse. So long as jurists and groups acknowledged the authority of the textually based divine command ethics expressed in al-Shafi'i's version of usul al-fiqh, their differences of opinion could be tolerated. What could not be granted equal tolerance, however, were disagreements based on a refusal to acknowledge the authority of the texts and methods of interpretation outlined by al-Shafi'i and jurists sharing his approach.

For al-Shafi'i and those following in his way, then, the divine command ethics developed in usul al-fiqh creates the boundaries within which tolerance can occur. Some matters are crucial, defining who is and who is not a Muslim; others are less crucial, because they are less clear. The delineation between these two provides a source of peace among the Muslims; it also provides an occasion for conflict. Contem- porary Muslim discourse, for example, can often be read as a debate precisely about the delineation between legitimate and illegitimate ikhtilaf. The widely commented on text known as The Neglected Duty provides a case in point.14 Is it or is it not obligatory for all Muslims to struggle for the establishment of a state ruled solely by Islamic law? Are those Muslims who attempt to administer a "mixed regime" of laws based on Islamic and non-Islamic sources apostates? Should Muslims convinced of the duty to establish a state ruled solely by Is- lamic law take it upon themselves to punish apostates through assas- sinations? What are the limits of legitimate disagreement in Muslim political discourse?

With respect to such questions, al-Shafi'i's theory, like most, exhib- its strengths and weaknesses. Even a liberal theorist would say that there are limits to freedom which, ironically, establish the possibilities

14 The Neglected Duty (1986) is a translation of al-Faridah al-Ghaiba, a text pur- porting to be the "testament" of members of the Egyptian militant group Islamic Jihad who participated in the assassination of Anwar Sadat. Johannes Jansen's introduction provides a good summary and discussion of the responses to the treatise by representa- tives of various Islamic perspectives.


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of freedom. Where and how human beings draw the borders of legitimate and illegitimate disagreement, and whether some ways of draw- ing such borders are better than others, will have to wait for another day.

4.3 Grounding a divine command ethics

There is one last type of disagreement that shows certain limits to al-ShafTi's theory. We may call it "theological" or "metaphysical." It has to do with questions about the foundations of al-Shafi'i's divine command ethics. When al-Shafi'i says, for example, that obedience to divine commands is essential because God knows the type of behavior best suited to human happiness in this world and the next, we can legitimately ask what assumptions he is making about human beings. Do divine commands tell us something we already know or something new? Granted, al-Shafi'i emphasizes divine commands or clear declarations of duty as found in authorized texts, but the Qur'an itself sometimes suggests that human beings know their duty simply by virtue of their capacity to reason. A person who is mature and of sound mind can and should be able to comprehend the basics of practical reason - or so many Muslims, including contemporaries of al-Shafi'i, have understood things. Yet the reasoning typical of divine command reasoning in ethics often carries the implication that God's will is actually the foundation of right and wrong. And what of human capacity to hear and obey? Is it given by "nature" that human beings can understand the commands of God? Or do hearing and obeying only come to those who receive a special grace?

On these questions, al-Shafi'i hardly commented. He left the work of crafting a metaphysic that would serve to ground appeals by Mus- lims to divine commands largely to others, in particular to the great theologian al-Ash'ari (d. 935). Al-Shafi'i's interest stayed closer to the ground. Perhaps this was just as well. When al-Ash'ari did venture a more complete account of the possibility and nature of divine commands in relation to human responsibility, he set off further debate about the boundaries between legitimate and illegitimate disagreement. Suppose one says, for example, that the capacity of a human being to obey God's commands rests on a divine decision to grant a power of obedience in a particular moment; and suppose one says at the same time that human beings remain responsible to obey God's commands - for even though the capacity to obey rests on God's decree, human beings are not incapacitated when it comes to obedience?

Such arguments are at the heart of al-Ash'ari's project. They address issues of coherence and justification that flow rather naturally


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from al-ShafiTs emphasis on divine commands. One does not have to think very hard, however, to know that al-Ash'ari's arguments are controversial. One can understand why al-Shafi'i lets others carry the burden of such discussion. He is content to assert the duty of humanity toward God and to wonder at the favor God grants in the provision of clear guidance. For human beings, gratitude, above all, is the appropriate attitude: "Praise be to God to whom gratitude for one of His favors cannot be paid save through another favor from Him, which necessitates for the giver of thanks for His past favors to repay it by a new favor which [in turn] makes obligatory upon him gratitude for it" (57).

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of Logic and Philosophy. Oxford: Clarendon Press. Rahman, Fazlur

1962 "Concepts Sunnah, Ijtihad, and Ijma' in the Early Period." Islamic Studies 1:5-21.

Reinhart, A. Kevin 1983 "Islamic Law as Islamic Ethics." Journal of Religious Ethics

11.2: 186-203. Schacht, Joseph

1950 The Origins ofMuhammadan Jurisprudence. Oxford: Clarendon Press.

1953 "New Sources for the History of Muhammadan Theology." Studia Islamica 1:23-42.

1964 An Introduction to Islamic Law. Oxford: Clarendon Press. 1974 "Islamic Religious Law." In The Legacy of Islam, 2nd ed., edited

by Joseph Schacht, with C. E. Bosworth, 392-403. Oxford: Clar- endon Press.

al-Shafi'i, Muhammad ibn Idris 1961 Islamic Jurisprudence: Shafi'i's "Risala." Translated, with an

introduction, notes, and appendices, by Majid Khadduri. Balti- more: Johns Hopkins Press.


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Theological & Ontological Considerations for an Islamic

Ethics of Medicine

Shaykh Amin Kholwadia

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M.A. Kholwadia © 1

Theological & Ontological Considerations for an Islamic Ethics of

Medicine

Shaykh Mohammed Amin Kholwadia

Director of Darul Qasim

Friday, April 15, 2016

Part 1

M.A. Kholwadia © 2

Islamic Doctrine

• Based on three foundational declarations

• There is only One Supreme Being and Creator (monotheism/tawheed)

• The Finality of Prophethood in the person of Muhammad

• The reality of the Last Day (of Judgment)

M.A. Kholwadia © 3

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The Doctrine of Monotheism in Islam

• God’s existence is eternal and necessary

• He has beautiful and magnificent names and attributes that are eternal

• Nothing is binding on Him (according to Sunni theology, not Mu’tazalite)

M.A. Kholwadia © 4

Two Major Theological Sects

• Sunnis and Mu’tazalite• Sunnis have three camps: Maturidi, Ash’ari, and Athari.

• Basic premise is that Revelation should not be overridden by human intellect and nothing is binding on God.

• Mu’atazlite• Basic premise is that human intellect and rationale should contextualize meaning of revelation and that Divine Justice is binding on God

M.A. Kholwadia © 5

The Doctrine of the Finality of Prophet hood in Islam

• God reveals His Word to human beings whom He appoints as messengers and prophets

• Prophets are role models for other human beings in matters of worship; moral conduct and following the Divine Law. Prophets are infallible.

• God appointed thousands of prophets –Muhammad being the last.

• The revealed word is known as Wahi (revelation). Prophets are obligated to follow Wahi in all matters that are pertinent to salvation.

M.A. Kholwadia © 6

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The Doctrine of the Last Day in Islam

• All human beings will be resurrected (physically according to the Sunnis)

• All beings will be in judged in some way or another by God Himself. God decides on everyone’s salvation

• The purpose of wahi (revelation) to prophets is to inform human beings what is necessary and pertinent to their salvation.

M.A. Kholwadia © 7

Islamic Epistemology

• Muslims believe there are four major sources of (salvational) knowledge in Islam

• The Quran (also referred to as recited Wahi)

• The Sunnah or known practice of the Prophet Muhammad (also known as non‐recited Wahi)

• Ijmaa’ or the consensus of Muslim scholars

• Qiyas or legal analogy

• Muslim theologians and jurists look into all four sources for evidence and inspiration

M.A. Kholwadia © 8

The Role of Islamic Ethics in Jurisprudence

• Two words are used to represent ethics in Arabic: Aadab (etiquettes); Akhlaaq (moral behavior),

• The former is used for formal behavior and the latter is more general. Ethics as applied to a practice were always assumed to be part of law (hukm) and not a separate concern. Muslim jurists would consider theological/ ethical/legal evidence in order to make rulings on issues.

M.A. Kholwadia © 9

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The Role of Islamic Ethics in Jurisprudence cont.

Examples• Theological evidence/reasons• Who has the prerogative to create human beings? (Based on God’s Name: The Creator)

• Can human beings facilitate unconventional ways of procreation?

• Who has the prerogative to give life and death? (Based on God’s Name: The Life Giver)

• Is there a role for human beings to participate in God’s creativity?

M.A. Kholwadia © 10

Ethical/Islamic legal evidence and reasons

• Islamic law considers human blood impure outside of the body. How does this affect the issue of blood transfusion?

• Extravagance is morally reprehensible. How does a Muslim look at cosmetic surgery?


Methods of evaluating wahi‐based evidence

• Methodologies based on Theological Differences

• The Mu’tazalite Approach

• God must act in the best interest of His creation.

• Are good and evil absolute?

• The Sunni Approach

• God acts in the best interest of His Creation

• Are good and evil conceivable by the human intellect?


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Methodologies based on Jurisprudential Differences

• The principled approach (usooli) – deontological or perhaps consequentialist (Islamic) approach.

• The basic guiding principle is whether or not a certain act carries a sin or not

• The utilitarian or necessity based approach where the main criterion is to either facilitate human life and

• Minimize pain and suffering. Sometimes promoting a better standard of living. This approach is known as the maqasid (legal objectives) based approach in contemporary Muslim jurisprudence.


Part 2


Islamic Praxis

• An overview of how Muslims incorporated their understanding of ethics in matters of health and medicine


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Following the examples of Prophets as role models

• The Prophet Ayyub (Job)

• The perfect patient

• How the Prophet Muhammad advised patients to behave

• Seeking Divine assistance for cure.

• Seeking human assistance for cure.

• Seeking validation for being sick.

• There is no cure for death!


Following the examples of Prophets as role models cont.

• Jesus• The perfect healer (Dr? )• How the Prophet Muhammad advised healers (tabeeb)

• Who can treat?• What kind of treatment can be given? (halal/haram)

• When to treat and when not to.• Types of diseases/illnesses based on diagnosis• Types of treatment


How Muslims responded to the call of the Prophet Muhammad in matters of health

and medicine

• Muslim health care practitioners based on various methodologies and philosophies


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Spiritual

• Incantations/ amulets


Psychological

• Counseling

• Therapy through meditation/music


Physical Treatment

• Treatment based on four humors

• Ibn Sina and others


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Conveniences and Facilities for patients

• Hospices and Hospitals

• Nurses and Doctors

• Medicine (Drugs?)

• Research into cures…


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The Actors and Material of Islamic Bioethics

Dr. Aasim Padela

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عليكمالسالم

PRE-CONFERENCE WORKSHOP:

AN INTRODUCTION TO ISLAMIC BIOETHICS

HOUSEKEEPING ITEMS

Registration Desk: -Name Badges

-Course Packets Readings, Information Material, Evaluation Forms

Course Evaluations Everyone fill out session evaluations and return to desk @ end of

conference (or when you leave)

Food Boxed Lunch

Healthcare System

Seminary

MuslimCommunity

Academy

Islam

American Muslim Health

Translation

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OVERARCHING GOALS FOR COURSE

Gained conceptual literacy in “Islamic” Bioethics

Equipped with tools for researching and applying Islamic moral frameworks to the practice of medicine

Who needs an Islamic bioethics?

MANY CONSUMERS Muslim patients Concordance between medical care and Islamic regulations

Muslim healthcare providers Islam does influence medical practice - an “Islamic” ethos

Religious leaders To advice clinicians and patients regarding biomedicine

Healthcare institutions Culturally-sensitive care that improves quality

Policy and Community Stakeholders Advocate for a more culturally accommodating healthcare system

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BACKGROUND

Islamic Bioethics Newly ‘birthed’ field of academic inquiry with interest

from many corners

Lack of clarity about the “Islamic”What content qualifies as Islamic (labelling activity)

implications for methods of derivation and research

Questions about scope and nature of “bioethics” Challenges related to the multi- and interdisciplinarity of

bioethics

VISION OF THE II&M

To become the leading center for study, dialogue, and education at the intersection of the Islamic tradition and biomedicine

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ANYBODY ELSE?

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REPORTING ON ISLAMIC BIOETHICS IN THE MEDICAL LITERATURE: WHERE ARE THE

EXPERTS? SHANAWANI ET AL

Papers reviewed from 1950-2005 “Islam or Muslim” & “Bioethics” 146 papers

Authors: 39 from Middle East

29 from the US

Content: Only 11 mention more than 1 ‘universal’ Islamic position

5 mention concepts/sources of Islamic law

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National Survey of American Muslim physicians

64% never or rarely consult Islamic jurists

55% never or rarely read Islamic bioethics books

79% never or rarely look to Islamic medical fiqh academy verdicts

95% of Muslim docs never assist Imams with bioethics cases

77% never or rarely seek guidance from Imams when facing a bioethics challenge

ISLAMIC BIOETHICS LITERATURE

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CURRENT STATE OF DISCOURSE

Producers of discourse:Many different disciplines engage with different

goals and expertise“Silo” problem with little cross-talk

Contestations over “Islamic” and “Bioethics”

No central repository of material

Writings often do not meet practical needs nor are scholarly robust

Who is an Islamic Bioethics Expert?

What is/are the disciplines upon which Islamic bioethics

expertise rests?

ISLAMIC BIOETHICS EXPERTS?

Knowledge RequisitesMedical Science Muslim MDs and Professional Organizations

Islamic Ethics & LawImams who counsel Muslim populaceProfessors of Islamic Studies

BioethicistsJDs, PhDs, MDs

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SocialScience

Medical Sciences

Philosophy &Bioethics

HealthPolicy

Ethics(Adab)

Moral Theology

(uṣūl al-fiqh)

IslamicLaw

(fiqh, aḥkam)

ClinicalPractice

AnIslamic

Bioethics

DiscursivePartners

Inputs

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TERMINOLOGY

Islamic Bioethics: Tied scriptural sources & bearers of tradition with 2

genres Fiqhi Literature = permissibility of therapies along an

ethico-legal gradient

Adabi Literature = inculcating of virtue-based practices

Muslim Bioethics:Sociological study of how Muslims respond to

ethical challenges with ‘Islam’ as one input

TERMINOLOGY

Muslim Bioethics:Sociological study of how Muslims respond to

ethical challenges with ‘Islam’ as one input

Applied Islamic Bioethics Research:Bridges Islamic & Muslim bioethics

methodologically

Examining the ways in which material of Islamic bioethics is understood and applied by consumers

Examining the translation of biomedical concepts into edifice of Islamic law

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LIMITATIONS OF “FATWA-HUNTING”

Method “Publication” Bias

Tool for Policy Context-driven

Ethico-legal Source subject to the inherent limitations of the constructs

Recognizing these shortcomings is necessary for avoiding misapplication & misreading

WHY THE GAPS?

Fatawa and their producersPracticalLegists use machinary of fiqh to ‘remove’ sin

Deference to ahl al-khibrah for details

ConceptualizationMay occur prior to fatwa and not written into

Or systematized after collation of juridical opinions performed Hukm al-shay far tasawurih

RESEARCH METHODOLOGY

Level 1:Encyclopedia of Islamic Bioethics

Fiqh Academies Dar al Ifta Al Misrriyah

Islamic Fiqh Academy of the Muslim World League (Jeddah)

Islamic Fiqh Academy (India)

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RESEARCH METHODOLOGY

Level 2:Review Books by Islamic legal experts

Topical reviews in Islamic Medical and Scientific Ethics Research Library at Georgetown University

Level 3: Individual fatwas or opinion pieces Qibla for the Islamic Sciences (formerly Sunnipath)

IslamQA,

RESOURCES

Extra slides

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TERMINOLOGY

What is Islam? Tradition with community Bearers of understanding

Living out practice

End-goal

What makes something “Islamic”? Sources

Signification

CORE CONCEPTS

Revelation (wahy) Matloo Qur’an

Ghayr matloo Sunnah

An “Islamic” “Bioethics” Revelatory guidance for human behavior relating to bio/med/health

that accords with the “good”/”right”

ETHICS IN ISLAM

What is right/good? Labelling authority vs. Characteristic of action

‘Ashari vs. Mu’tazali; Maturidi theology

Theological voluntar ism or Deist ic Subject iv ism God ’s commands are purposeful and general ly for the benefi t of

mankind

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END GOALS

What is the result/aim of ethical action?

ETHICS IN ISLAM

What can I do What should I do?

Islam (minimum) Ihsan (optimum)

Role of fuqaha = move community from sin

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ISLAMIC ETHICO-LEGAL DELIBERATION

Usul(sources)

•Textual- Quran & Prophetic example•Formal- Qiyas (analogy) & Ijma (consensus)•Secondary Sources- Istishab, Urf

Maqasid(objectives)

•Protection of life, religion, intellect, property, honor

•Maslaha (public interest)

Qawaid(maxims)

•Hardship calls for license•Dire necessity renders prohibited things

permissible

26

Medical Experts & Islamic Scholars Deliberatingover Brain Death: Gaps in the Applied IslamicBioethics Discoursemuwo_1342 53..72

Aasim I. Padela MD MSc1

University of Michigan School of MedicineAnn Arbor, MIHasan Shanawani MD MPHWayne State University School of MedicineDetroit, MIAhsan Arozullah MD MPHUniversity of Illinois at ChicagoChicago, IL

Abstract

The scope, methodology and tools of Islamic bioethics as a self-standing disciplineremain open to debate. Physicians, sociologists, Islamic law experts, historians,religious leaders as well as policy and health researchers have all entered the

global discussion attempting to conceptualize Islamic bioethics. Arguably, the implica-tions of Islamic bioethical discourse is most significant for healthcare practitioners andtheir patients, as patient values interact with those of healthcare providers and themedical system at large leading to ethical challenges and potential cultural conflicts.Similarly the products of the discourse are of primary import to religious leaders andImams who advise Muslim patients on religiously acceptable medical practices.However, the process and products of the current Islamic bioethical discourse containsgaps that preclude them from meeting the needs of healthcare practitioners, religiousleaders, and those they advise.

Within the medical literature, published works on Islamic bioethics authored bymedical practitioners often contain gaps such as the failure to account for theologicaldebates about the role of the intellect, ‘aql, in ethical decision making, failure to utilizesources of Islamic law, and failure to address the pluralism of opinions within the Islamic

1 Address correspondence to: Aasim I. Padela, RWJF Clinical Scholars Program, 6312 Med Sci Bldg I,1150 W Med Center Drive, University of Michigan, Ann Arbor MI 48109-5604; email: [email protected];phone: 734-647-4844.

© 2011 Hartford Seminary.Published by Blackwell Publishing Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK and 350 Main Street, Malden, MA 02148USA.

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ethicolegal framework.2 On the other hand, treatises authored by Islamic legal expertsand fatawa offered by traditional jurisconsults often lack a practical focus and neglecthealthcare policy implications. Multiple organizations have attempted to address thesegaps through a multidisciplinary approach of bringing together various experts,healthcare practitioners and traditional jurisconsults when addressing questions ofconcern to medical practitioners and Islamic scholars.

The purpose of this paper is to illustrate the necessary expertise when undertakingapplied Islamic bioethical deliberations. By outlining who (and what) should be broughtto these deliberations, future Islamic bioethics discourse should produce relevantdecisions for its consumers. Our analysis begins with defining the consumers of appliedIslamic bioethics and their needs. We then proceed to describe the state of the discourseand the various individual and organizational participants. Based on Islamic bioethicaldiscussions regarding brain death, we evaluate how well select products meet the needsof consumers and consider what additional expertise might be needed to adequatelyaddress the questions. Finally, we offer a general description of experts that must bebrought together in collaborative efforts within applied Islamic bioethics.

Background/Introduction“Islam” represents a cumulative religious tradition spanning fourteen centuries

which Muslims have adapted in diverse ways to varied times, places and contexts. TheIslamic ethical and legal traditions are defining features of Muslim societies and exertstrong influence upon Muslim behavior. As some remark, this ethico-legal framework isextremely “extensive in the sphere of private, social, political, and religious life of the[Muslim] believer. The result is the totalizing character of Islam as a life system thatinterweaves religion and politics, the sacred and profane, the material world and thespiritual sphere.”3

The values and ethics of Islam and other faith traditions are increasingly challengedto express themselves in a post-modern world. The birth of a new discipline; “Islamicbioethics,” provides a means for Islamic ethico-legal traditions to be applied in responseto social changes in health and medicine, new biomedical technologies, and under-standings of human biology that challenge previously held assumptions.

As with other ethical traditions, the field of “Islamic bioethics” is growing out of themultiple needs and interests of a diversity of people. It is a subject on which a variety ofexperts and scholars engage: medical practitioners, health and health policy researchers,social scientists, historians, Islamic studies scholars, as well as traditional jurisconsults(muftı ). Hence, each group relies on its own knowledge and expertise to addressquestions of how Islamic values interact with, and influence medical practice.

2 Shanawani H, Khalil MH. “Reporting on ‘Islamic Bioethics’ in the Medical Literature”. in MuslimMedical Ethics: From Theory to Practice, eds. Brockopp J, Eich T. (Columbia, South Carolina: Universityof South Carolina Press, 2008), 213–28.3 D. Atighetchi, Islamic bioethics : problems and perspectives ( New York: Springer, 2007), 1.

The Muslim World • Volume 101 • January 2011

54 © 2011 Hartford Seminary.

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The typical discussions in Islamic bioethics occur within “silos” with little cross-talkacross expertise areas, and seldom does the discourse reach patients, their physiciansand their religious advisors where they have practical implications. And as eachdiscipline independently examines assertions from other disciplines, they often lackostensible partners from those disciplines. Healthcare providers find that traditionalfatawa and treatises do not address the realities of their practice. Meanwhile, Islamicstudies scholars find medical professional societies’ ethics positions, and those offeredby traditional jurisconsults to lack intellectual rigor. Further, traditional jurisconsultsstruggle to adequately understand the science prompting questions of bioethics beforedrawing conclusions.

The scholars, practitioners, and consumers of Islamic bioethical discourse have anadditional challenge: the centers of discussion and deliberation on these questions havehistorically been segregated both geographically and intellectually. While the UnitedStates (US) has been the center of biomedical research and development, as well as thefocal point of transcultural bioethical questions, the center of Islamic legal scholarshiplies outside of the US. The unfortunate result is twofold: Islamic constructs of philosophyand ethics are marginalized in the general discourse of mainstream Western bioethics.Meanwhile, developments in medicine and biology, with their ethical, legal, and socialimplications, receive relatively little attention by traditional Islamic scholars. Finally,discussions of Islamic bioethics often remain in the abstract, and have little to do with thepractical challenges of Muslims living in the West.

One possible solution to these challenges is to first acknowledge the shortcomingsthat result from segregated conversations and to work towards facilitating a more robustapproach to applied Islamic bioethics through interdisciplinary dialogue. Such dialogueshould produce products that are relevant and accessible to those who rely on them toguide their convictions and normative goals.

We propose that Islamic bioethical questions should be addressed through anapplied, multidisciplinary process. We outline the objectives of applied Islamic bioethicsand the needs of its consumers. We then consider the current state of Islamic bioethicsdiscourse. Finally, we measure the selected products against our proposed objectivesand process.

The Objectives of Applied Islamic Bioethics& Its Consumers

“Applied Islamic Bioethics” as defined here is a devotional discipline that is distinct,although not entirely, from other studies of bioethics and is of primary interest to thosewho follow Islam as their chosen way of life. It is the study of religion as a source ofnormative goals for practicing Muslims. This is somewhat separate from Islam andbioethics as a subject of study, either as a “philosophical” or religious text (as in Islamicbioethics) or an empiric social science of studying Muslims (as in Muslim bioethics).Applied Islamic bioethics seeks to answer the questions asked by Muslim health care

Medical Experts & Islamic Scholars Deliberating over Brain Death

55© 2011 Hartford Seminary.

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providers, religious scholars and leaders, and lay Muslim patients with practicalimplications. More specifically, it is the challenging process of developing answers toimportant Islamic legal and bioethical questions that, Muslims believe, might have animpact on their standing before God.

With this definition in mind, applied Islamic bioethics has several aims:

1. Islamic bioethics helps to inform the healthcare behaviors of Muslim patients andproviders.4 For Muslim patients, applied Islamic bioethics is the set of values that guidehow they seek medical care and influence their acceptance of medical therapies. ForMuslim healthcare providers, applied Islamic bioethics guides the professions they seek,what therapies and procedures they provide, and how they interact with patients,hospitals, and their peers. For Imams, chaplains, and other religious leaders, appliedIslamic bioethics provides guidance when lay Muslims seek their advice onIslamically-valid courses of action in healthcare.

2. Applied Islamic bioethics is the process by which Muslim societies and the Islamictradition adapt and negotiate values within the modern context. With the advancementsof science and medical technology new ethical dilemmas have functioned as the catalystfor a renewed religious bioethical discourse. Globalization is increasingly challengingtraditional, and previously culturally isolated, communities to interact with, and strugglefor relevance within, an increasingly pluralistic environment. Further, medical scienceand technology brought from outside Muslim communities must be reconciled withreligious and cultural values within the recipient societies.

3. Finally, applied Islamic bioethics provides a framework from which Muslims and theirreligious leaders can interact with academics, policy scholars, and others whose subjectof study is Islam and Muslims, their values and law, and the Islamic tradition.

The aims and goals of applied Islamic bioethics are defined by its consumers. If a keygoal of ethics is to meet the needs of the vulnerable and those most in need, the ultimateconsumer of all bioethics is the one in the role of “patient.” However, few ethicalconstructs place the burden on patients to come in having completely thought out setsof values. More commonly, they turn to “experts” on an ad hoc basis. So who, in theservice of Muslim patients, looks for bioethical materials? There are at least fourcategories of stakeholders

1. Muslim Health Care Providers and Allied Health Professionals (doctors, pharmacists,nurses, and others) who provide medical services to patients.

2. Health Care Institutions (hospitals, clinics) and Systems (medical networks and healthinsurance providers) who care for large communities of Muslims and/or who have Islamas a central feature of their vision and mission.

3. Policy institutes, both governmental and non-governmental, and individuals who serveand/or advocate for the needs of large Muslim communities.

4. Religious leaders (Imams, chaplains and their professional organizations) who counseland advise Muslims on issues of bioethics.

4 Aasim I. Padela, Hasan Shanawani, Jane Greenlaw, Hamada Hamid, Mehmet Aktas, Nancy Chin. “Theperceived role of Islam in immigrant Muslim medical practice within the USA: an exploratory qualitativestudy,” J Med Ethics 34, no. 5 (2008): 365–9.



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These groups share an important feature in that they seek both a priori and posterioriguidance on best practice. They contain a professional morality with agreed uponstandards of conduct. This shared sense of ethics develops out of the relationshipbetween patient, professional, and regulatory bodies that are specific to that interaction.Taking physicians as an example, there exists a strong culture of professional ethics,generally defined by licensing boards, advocacy organizations like the American MedicalAssociation (AMA), and state and local regulations. Often, the institution (#2) sets, or atleast is the setting of regulation, with its own best practice guidelines. The regulators (#3)who direct best practice are themselves driven by normative goals, and finally, religiousleaders (#4) are the patient advocates voicing for patients or advising patients from theperspective of what is best for them religiously. Also, when skeptical patients questiontheir doctors, policy makers, or medical institutions, the other categories of stakeholdersmay be relied on to provide a second opinion, and an additional layer of scrutiny againstanother group.

The State of Islamic bioethical discourse: A Taxonomy ofScholars and Organizations

Having laid out the objectives and consumers of applied Islamic bioethics, we cannow outline the producers of materials under some moniker of “Islamic” or “Muslim”bioethics:

Physician and Allied Health Professionals — These individuals are on the front lineof Islamic bioethics. They care for patients in a medical culture that may be at odds withtheir religious values. Ethical challenges arise during the clinical care of patients, andoften Muslim patients seek out Muslim providers with the hope of finding ethicalguidance pertaining to medicine that is religiously informed. While this group generallyrefers to physicians, it also includes other allied health professionals such as dentists,nurses, psychologists, among others. Their pronouncements on “what is Islamic” vary ingenre, scope, and audience; some speak to patients, others to non-Muslim peers, andothers within the Muslim community.

Academicians — These are individuals in university and academic circles, who seeIslamic and/or Muslim bioethics as an object of study. Utilizing their disciplinaryexpertise they inform the construction of an Islamic bioethic. These categories are notmutually exclusive as scholars fall into more than one group. We believe there to be atleast three different sub-categories of academicians:

1. Social scientists — these scholars focus on the application and negotiation of Islamicvalues and identities in healthcare systems and within individual societies. These aregenerally anthropologists, sociologists, and scholars of policy (economics, politicalscience), scholars of race and ethnicity, and other scientists who rely on empiric dataobtained from and / or about Muslims.

2. Humanities scholars — these scholars analyze classical and modern application ofIslamic law and ethical values to medicine and medical care. They are historians, divinityor philosophy scholars, and other scholars whose discipline is not Islam per se, but use



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their scholarly tools from a particular intellectual discipline focused onto Islam and/ orMuslims as their subject.

3. Islamic studies scholars — these scholars study the devotional jurisconsults output onIslamic bioethics and attempt to synthesize a global Islamic bioethics. Their academicfocus may be Arabic or Near Eastern studies, comparative religion or philosophy, or otherareas that are outgrowths of the Islamic tradition but their venue is a non-devotionalenvironment whose intended audience may or may not include adherents of the Islamicfaith.

Devotional jurisconsults — These are individuals or groups of scholars whoseprimary concern is to serve Muslims by enabling their continued adherence to the faith.They are formally authorized muftis with advanced training in Islamic law or those withcomparable training issuing religious decrees and verdicts ( fatawa) as opposed to Imamswho cater to mosques and rely on fatawa of others. This category is not homogenous asthese scholars are variably trained through Islamic seminaries and colleges focusing ondifferent Islamic legal schools or theologies. Their service to the community is likewisewide-ranging as some may serve at mosques or be jurisconsults within communities,and others take leadership positions at the regional or national level or have formalgovernmental positions. Some also serve on global internet forums such as Sunnipath.com and Islamonline.net, where they answer legal questions and issue fatawa.

Bioethicists — this group of scholars are a diverse pool of experts comprised ofclinicians, philosophers, lawyers or social scientists. The uniting feature of this group isthat they are concerned with the practical policy and vocational implications ofbioethics. They may compare and contrast different ethical models and legal codes inorder to determine best practices. More often than not, they perform their work in agreater context of the first two categories of clinical or academic work.

In addition to individual scholars and students with interest in bioethics, there existorganizations involved in the Islamic bioethical discourse. Despite a diversity of goalsand means, they also inform an applied Islamic bioethics. A partial taxonomy is asfollows:

Professional healthcare societies — Groups of Muslim physicians and allied healthprofessionals working in pluralistic medical environments attempt to inject Islamic valuesinto their professional spheres hoping to inform their practice patterns. Organizationssuch as the Islamic Medical Associations around the globe provide a forum for discussionand promotion of position statements about medicine that are in-line with Islamic values.Some organizations, such as the National Arab-American Medical Association (NAAMA)and Association of Pakistani Physicians of North America (APPNA) may not have religionas their sole focus but share these bioethical concerns. These organizations vary, from theMuslim Physicians of Greater Detroit (MPGD) limited to one metropolitan area, to theFederation of Islamic Medical Associations (FIMA), which is world-wide in reach.

Religious institutions — These traditional seminaries, Islamic educational institu-tions or online academies serve as forums to bring together the muftı, devotionaljurisconsults, and the mustaftı, the lay person with a question about Islamic law. Internet



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forums such as Sunnipath.com serve in this capacity. In similar fashion organizationssuch as Al-Kawthar Institute and Medi-Mentor in the United Kingdom bring togetherallied health professionals and devotional jurisconsults in educational forums.

Academic Institutes — these university-based institutes create academic forums forengagement with Islamic bioethics. For example the Markfield Institute of HigherEducation offers an academic Diploma in Islamic Medical Ethics, and the Rock EthicsInstitute hosted a conference on Islamic bioethics.

Policy institutes — These non-university organizations concentrate on the policyimplications of Islamic and Muslim bioethics. For example the Institute of Social Policy &Understanding brings together medical experts and researchers in order to advocate forthe needs of, and to inform medical policy towards, Muslim patients. Some organizationstied to transnational and state governments such as the Islamic Fiqh Academy in India,and of the Organization of the Islamic Conference, inform Muslim nations, peoples andgovernments on the Islamic legal concerns pertaining to healthcare policy.

While these diverse scholars and organizations contribute to the Islamic bioethicsdiscourse, the varied approaches and objectives lead to products that may or may notmeet the needs of the consumers of applied Islamic bioethics. It is hard for clinicians andpatients to know whom to turn to for proper guidance pertaining to their concerns. The‘silos’ within which the discourse occurs presents a barrier to the dissemination ofproducts that are relevant to the consumers. Furthermore, not having sufficient diverseexpertise at the table leads to palpable shortcomings in the products. In the next sectionwe highlight examples of gaps within the discourse and its output.

The process of answering a bioethics questionThe process by which a bioethics question is answered is a subject that deserves our

attention (Figure 1).5 It is against this process that the efforts of others writing aboutIslamic bioethics can be considered. These steps are as follows:

1. Stating the issue or question. The process of applied Islamic bioethics starts in responseto a real-world or anticipated challenge or question with the ultimate goal ofacting to enhance one’s standing before God. These can range from permissibility(� �halal haram/¯ ¯ ) of simple acts, to complex policy decisions involving thousands or evenmillions of people. They can also vary in complexity of the biology or other natural andsocial sciences involved.

2. Identifying and clarifying important elements, such asa. Key terms and definitions,b. Relevant facts, such as the state of the known science, current and accepted practice,

and an attempt to identify unknown or uncertain facts that might impact thediscussion,

c. Stakeholders, primarily those identified above, although there are others as well,d. Key issues and principles, especially those from Islamic tradition

5 Based on J Swazey and S Bird, “Teaching and Learning Research Ethics,” in D Elliot and J Stern, eds,Research Ethics: A Reader (University Press of New England, 1997).



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3. Re-examination of the question in the light of the key identified elements, with thepossibility of reformulating the issue or question, or perhaps examining other questionsthat need consideration before addressing the initial one that started the process,

4. Generation of responses and solutions based on a vigorous and thorough discussion withrepresentation of relevant experts and stakeholders,

5. Consideration of the implications and practical constraints relevant to possibleresponses,

6. Establishing consensus on a proposed solution, that best reflects the values and realitiesestablished in this process,

7. Reconciliation or acknowledgement of controversies, such as the existence of equallyappropriate solutions, irreconcilable differences, and the potential to compromise wherepossible and appropriate.

Using this process as a framework and reference, we can identify and considerpitfalls in other attempts to answer ethical questions, with a goal of better anticipatingshortcomings as we attempt to build an applied Islamic bioethics.

Illustrating the gaps in Islamic bioethical discourse:Brain Death

History of Brain DeathInitially described in the 1930’s in France, the concept of brain death was

popularized in 1968 by an Ad Hoc Committee of Harvard Medical School. This group ofscholars was led by Dr. Henry Beecher, known as the father of academic anesthesiologyand renowned for his expose on the human abuses in medical experimentation. Thecommittee was charged with determining the neurological characteristics of patientsupon which sustaining life support was futile.6 The committee’s work and hence theconcept of “brain death” was, and is, not without controversy. The report did not offerconceptual clarity on whether the criteria offered a new means of diagnosing death orrather was a new definition of death, and Dr. Beecher, in subsequent interviews andlectures remained ambiguous as to whether he believed the loss of consciousness andpersonality, “higher” brain functions, should be equated with the death of an individual.7

Medical scientists and philosophers continue to debate whether whole brain criteria inother words attempting to ascertain more or less total brain failure, brain-stem criteriawhere one looks for lack of function in the brain-stem only, or higher brain criteriawhere an individual who loses function of those parts of the brain responsible forpersonality and cognition, should be the conceptual basis of brain death protocols.

6 Gary S. Belkin, “Brain Death and the Historical Understanding of Bioethics.” Journal of the History ofMedicine 58 (2003): 325–61.7 Martin S. Pernick, “Brain Death in a Cultural Context: The Reconstruction of Death, 1967–1981.” In TheDefinition of Death: Contemporary Controversies, eds. Stuart J. Youngner, Robert M. Arnold and RenieSchapiro: The Johns Hopkins University Press, 1999. 3–33.



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Nonetheless the landmark paper produced by this committee heralded the socio-culturalconstruction of a “brain dead” individual.

Various governmental and private Islamic juridical councils took up the issuesaround brain death after its establishment in the West. In 1964 Ayatollah Khomeiniallowed organ transplantation from brain dead patients in Iran, while his Sunnicounterparts took up discussion much later. This discussion took on a new zeal after the1981 United States President’s Commission crafted the Uniform Determination of DeathAct (UDDA). The UDDA attempted to standardize a legal definition of death and wasdeveloped in collaboration with the American Bar Association, the American MedicalAssociation and the National Conference of Commissioners on Uniform State Laws.8

Ultimately it adopted the whole-brain criterion signifying as dead any individual who has“irreversible cessation of all functions of the entire brain, including the brain stem.”9

Notably it also allowed death to have occurred with cardiopulmonary collapse,establishing two different criterions for legal death in the United States.10

Case #1: The Islamic Fiqh Academy of the Organization of the IslamicConference and its efforts

To address brain death through an Islamic lens the Islamic Fiqh Academy of theOrganization of the Islamic Conference (IFA-OIC) held various conferences in the 1980s.The IFA-OIC comprises of a body of Islamic legal scholars appointed to officiallyrepresent their countries (43 out of 57 OIC member states are represented), in additionto scholars from various backgrounds and fields assigned to the IFA upon therecommendation of members and experts. The institution grew out of the need to bringtogether scholars from different Islamic and scientific fields together to performcollective ıjtihad, or Islamic ethicolegal deliberation, as it was felt that on certain issuesit is no longer possible for a single Islamic scholar to have comprehensive knowledge,or sufficient mastery of all disciplines relevant to the issue at hand, to perform anaccurate assessment. The hope at the OIC-IFA is to increase unity and reduce discord anddoctrinal disputes as all orthodox (both Sunni & Shiite) schools of Islamic law andtheology are represented at the IFA.11

8 Fred Plum, “Clinical Standards and Technological Confirmatory Tests in Diagnosing Brain Death.” InThe Definition of Death: Contemporary Controversies, eds. Stuart J. Youngner, Robert M. Arnold andRenie Schapiro: The Johns Hopkins University Press, 1999. 34–65; “Defining Death: A Report on theMedical, Legal and Ethical Issues in the Determination of Death.” ed. President’s Commission for theStudy of Ethical Problems in Medicine and Biomedical and Behavioral Research, 1981.9 “Uniform Determination of Death Act”. United States: NATIONAL CONFERENCE OF COMMISSION-ERS ON UNIFORM STATE LAWS, 1981.10 Ibid.11 Al-Nasser, Lahem. “The Islamic Fiqh Academy.” In al-sharq al Awsat-

�. Saudi Research and Publishing

company, 2009; Ebrahim Moosa, “Languages of Change in Islamic Law: Redefining Death inModernity.” Islamic Studies 38, no. 3 (1999): 305–42.



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A key conclusion of the OIC-IFA was that brain death was acceptable as legal deathin the Islamic tradition.12 Further, they used the same criteria set out by the UDDA a fewyears earlier to define brain death. When clarifying their position in 1988 they ruled thatIslamic law permitted two standards for the declaration of death: 1) when all vitalfunctions of brain cease irreversibly and the brain has started to degenerate as witnessedby specialist physicians 2) when the heart and respiration stop completely andirreversibly as witnessed by physicians.13 These statements are widely cited within themedical community as support for brain death in the Muslim world. However thequestion of “brain death” as a concept, and as an acceptable criterion of death, remainscontroversial in the Muslim world and the OIC-IFA left many clinical and ethicalquestions unanswered.

Case #2: The Islamic Medical Association of North America (IMANA) andits efforts

The OIC-IFA council was not the only group of Muslims to consider the question ofbrain death. As has been the case in other faith-based traditions of bioethics, a paralleleffort to consider bioethics questions grew not from the pantheon of religious scholars,but medical ones. Specifically, the Islamic Medical Association of North America(IMANA) also tackled brain death. Founded in the 1960s, IMANA’s mission is “to providea forum and resource for Muslim physicians and other health care professionals . . . [and]to promote a greater awareness of Islamic medical ethics (emphasis added) and valuesamong Muslims and the community-at-large . . .”14 Since its inception it attempts to speakon behalf of all Muslim physicians and Muslim patients in the United States.

In 2003, the IMANA ethics committee developed a primer ultimately titled MedicalEthics: the IMANA perspective.15 There were 9 authors, including one of the writers of thispaper, who met over a period of 6 months to develop the statement which was ultimatelypublished online and in the Journal of the Islamic Medical Association ( JIMA).16

In the introduction, IMANA explains that they developed the primer (referred fromnow as the Perspective) to provide “recommendations from the guiding principles of theGlorious Qur’an, the tradition of Prophet Muhammad

�(PBUH) and opinions of past and

contemporary Muslim scholars.”17 Their offer of support for Muslim doctors came withthe expressed caveat that

12 Moosa, 1999; Abou Fadl Mohsin Ebrahim, “End of Life Issues: Making Use of Extraordinary Meansto Sustain Life.” In Geriatrics and End of Life Issues: Biomedical, Ethical and Islamic Horizons, eds.Hossam E. Fadel, Muhammed A. A. Khan and Aly A. Mishal: ( Jordan Society for Islamic MedicalSciences 2006), 49–77; Ebrahim Moosa, “Brain Death and Organ Transplantation — an IslamicOpinion.” South African Medical Journal 83 (1993): 385–86.13 Moosa, 1999.14 www.imana.org/mission.html15 “Medical Ethics: The IMANA Perspective.” ed. IMANA Ethics Committee, Lombard, IL: Islamic MedicalAssociation of North America, 2005.16 jima.imana.org17 “Medical Ethics: The IMANA Perspective” 2005.



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“The positions expressed in this perspective are only suggestions on behalf ofIMANA and are not to be considered Fatwa(s) (religious decrees) . . . the membersof ethics committee are not in a position to issue a Fatwa on any of the issues whichwe are writing on behalf of IMANA. However, from time to time, on a need basis,we do consult Muslim scholars to have their opinion.”18

IMANA developed this piece to inform physician practice. In public statements IMANAnoted that while the ethics committee included no religious scholars they had consultedsome prior to completing the Perspective. What they are not able to provide is a clearnarrative of the process by which the Perspective was developed. There is no history ofthe iterative process, no specific author attribution, and no explanation of howconclusions were drawn. The lack of this narrative leaves the reader without key toolsto consider on his own the bioethical questions considered in the primer.

The Perspective has taken an authoritative position in Muslim bioethics, as it is citedthroughout the medical literature and on medical ethics platforms such as the AmericanMedical Association’s ethics education website Virtual Mentor, and the Society ofAcademic Emergency Medicine’s ethics committee front page.19 Furthermore, Muslimphysicians across the globe have written to IMANA indicating that their work serves akey role in their bioethical decisions.

IMANA’s support in the Perspective for brain death is difficult to fully review. Theystate, “the definition of the end of human life from the Islamic point of view has beenpreviously discussed. IMANA has previously published a position paper on death,”20 andthen refer to two previous publications, from 1991 and 1996 in the Journal of the IslamicMedical Association ( JIMA), as the basis of their statement. However, JIMA is not fullyarchived in the years 1991–1996, and as it is not an indexed journal, the citations are notwidely available.

The statement offers little new insight beyond generally accepted criteria for thediagnosis of death, defining it as

“Permanent cessation of cardiopulmonary function, when diagnosed by a physi-cian or a team of physicians, is considered death. The concept of brain death isnecessitated when artificial means to maintain cardiopulmonary function areemployed. In those situations, cortical and brain stem death, as established byspecialist(s) using appropriate investigations can be used . . . It is the attendingphysician who should be responsible for making the diagnosis of death . . . Aperson is considered dead when the conditions given below are met . . . Aspecialist physician (or physicians) has determined that after standard examina-

18 Ibid.19 Patrick Guinan and Malika Haque. “Patau Syndrome and Perinatal Decision Making.” In VirtualMentor: American Medical Association, 2005; M. Y. Rady, J. L. Verheijde, and M. S. Ali. “Islam andEnd-of-Life Practices in Organ Donation for Transplantation: New Questions and Serious SocioculturalConsequences.” HEC Forum 21, no. 2 (2009): 175–205. Society of Academic Emergency Medicinehttp://www.saem.org/SAEMDNN/Default.aspx?tabid=55820 “Medical Ethics: The IMANA Perspective” 2005.



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tion, the function of the brain, including the brain stem, has come to a permanentstop, even if some other organs may continue to show spontaneous activity.”21

The Perspective does clarify previous ambiguities, notably from the IFA statement. Thequestion of “who determines death,” noted previously, was answered in the Perspective’sembrace of the key role of the doctor, and the question of uncertainty in diagnosisis at least alluded to in the more detailed standard with added language on the physiologicchanges and level of physician training needed to make a diagnosis of brain death.

What (and who) is missing from the deliberative process?We can examine how well the products of Islamic bioethical deliberation meet our

aims by asking two questions:

1. Do the products meet the needs of the stakeholders outlined above, and where and howthey fail to meet the needs of those stakeholders?

2. Do the products adequately reflect the process of answering a bioethics question, andwhere do shortcomings in any of those products reflect failures to maintain fidelity to theprocess we outlined above?

Below, we identify multiple questions, shortcomings, and needs in light of these threequestions.

Unanswered Questions and Unmet Needs with Islamicbioethical deliberations on Brain Death

Gaps in the OIC-IFA verdictThe OIC-IFA statement accepted brain death as valid in Islamic law when all vital

functions of the brain cease irreversibly and the brain has started to degenerate aswitnessed by specialist physicians. While on surface value this ruling seems clear and inpractice has been widely cited within the medical community as support for brain deathwithin Islamic law, it suffers from conceptual and clinical ambiguity giving little guidanceto Muslim physicians and religious leaders on important questions.

The OIC-IFA assessment seems to only implicitly defer to medical expertise onmatters of brain death. The medical specialists were unanimous on their support forbrain-stem criteria signifying death, yet in the verdict the OIC-IFA used the caveat of vitalfunctions of the brain having ceased.22 Hence for applied Islamic bioethics severalquestions remain. 1) What are, and who decides, as to the vital functions of the brain?A related question is: is there a conceptual basis within the Islamic tradition for braindeath? 2) Do physician-scientists have to determine the irreversibility of these vital brainfunctions as a matter of fact? Related to this question is what level of certainty ofdiagnosis is needed to stipulate brain death? 3) Similarly, is the degeneration of the brain

21 Ibid.22 Moosa, 1999.



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necessary within the brain death conception according to Islamic law? These questionsand related ones were left, and remain to this day, largely unanswered and withoutconsensus. For those looking for clear guidance on brain death, the OIC-IFA statementis lacking. We briefly examine each of these concerns below.

Vital functions of the brain vis-à-vis the definition of personhood in IslamDebates about the importance of the brain to personhood find grounding within

many of the disparate traditions of western philosophy. Greek, Roman, Enlightenmentand Judeo-Christian traditions contain debates on the importance of rationality, con-sciousness, sentience as essential characteristics that separate mankind from other life.While one could argue that a singular tradition is not present it is clear that thedevelopment of western philosophical traditions and epistemological theories placegreat importance upon the human intellect and its products. Common to Aristotle,Descartes, Locke, Hume, Kant, Sartre is that some type of cognitive function is necessaryfor personhood.23 With empiric neuroscience locating many, if not all of thesedistinguishing capacities within the brain, acceptance of brain death as a concept withinwestern societies has been met with relative ease. Today the debate largely centers onwhether whole-brain, brain stem or higher-brain formulations are most appropriate forconceptualizing and diagnosing brain death. Within Islamic traditions the Mu‘tazilite,sometimes referred to as the rationalist tradition, may be the closest to western rationalphilosophies. However this stream was all but quashed by the orthodoxy. The intellectis deemed error-prone and must be chained to revelation in the two dominant orthodoxtheological schools of Sunnı Islam, Maturidism and Ash‘arism. Further the conceptual-ization of man begins not with his relation to animals but rather with his relationship tothe Divine.

If the OIC-IFA meant for medical scientists to determine vital functions of the brain,they seem to overlook the passionate debates within the medical and philosophicalcircles around whole-brain, higher brain and brain-stem criteria. Generally, manyphilosophers find resonance with higher brain criteria by which they mean that once anindividual no longer posses the ability for cognition, perception, response to theenvironment, volition, and similar abilities they lose personhood and thus are effectively“dead.” The medical community seems to find brain-stem criteria appealing since theyhold that while cognition, perception, volition and thought are functions of the higherbrain, i.e. cortices, a functioning brain stem allows for such “higher” function; without afunctioning brain stem one cannot do the things that make us human.24 Another benefitof brain stem criteria is diagnostic simplicity, as one is not required to test for total brainfunction; rather the clinician needs only to test for brain stem responses. It seems thatwhole brain criteria grew out of an attempt to compromise between these two camps.Notably most diagnostic protocols for brain death only test for brain stem functioning

23 J. P. Lizza, “Persons and Death: What’s Metaphysically Wrong with Our Current Statutory Definitionof Death?” J Med Philos 18, no. 4 (1993): 351–74.24 Plum, 1999.



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since law leaves the realm of diagnosis to the medical community. This fact has causedsome to call whole brain death criteria a convenient fiction.25 It remains unclear whichcamp the OIC-IFA intended to side with. Evidence exists that some legal scholarsanalogized brain dead individuals to beheaded persons.26 Such an analogy is clinicallyfalse as the diagnosis of brain death does not equate to total brain failure. As one expertnotes “the current condition of a brain-dead individual is likely to be that of continuedretention of integrity and function in all organ systems, apart from the central nervoussystem. There is also likely to be persisting function in some . . . proportion of thebrain.”27 Furthermore Dr. Fred Plum, a world-renowned neurologist and world-authorityon coma states, notes “the physiological practicalities of functional brain death do notnecessarily imply the immediate simultaneous death of the organ’s many minifunctions. . . only areas critical to survival and communication are tested in most standard clinicalprotocols.”28 Hence, conceptual clarity for the determination of which are the vitalfunctions of the brain, and some attention to the probability of residual brain functionneeds to be clearly addressed by Islamic juridical councils who opine on the permissi-bility of brain death.

A possible way to provide conceptual clarity may be through delving into the richIslamic tradition. Since individual death is conceptualized through the removal of thesoul, and a Muslim must believe this as a tenet of the faith, Muslim theologians may beable to tie vital functions of the brain to vital functions of the soul. In other words,malfunction of the brain may be viewed as evidence as to the departure, or impendingdeparture, of the soul. The Islamic Organization of Medical Sciences (IOMS) conferenceson brain death laid the foundation for such deliberation by equating individuals declaredbrain dead by brain stem criteria to those with “unstable” life, al hayat-

�¯ ghayr

al-mustaqirr, thus dying but not dead.29 Yet Islamic juridical councils are not unanimousin this.

This discussion brings forth a challenge that the concept of brain death poses for theIslamic tradition. Neuroscience tells us that the brain is the locus of integration whereperception takes place and stimuli are interpreted. It also tells us that the brain is wherecommands are issued and the members of the body comply through motion. Motiveforce, perception, cognition and consciousness all are attached to brain functions. SinceIslamic metaphysics considers death when the soul leaves the body, and located manyof these similar functions (perception, motive force) within the soul, how do we

25 Singer, Peter. Rethinking Life & Death: The Collapse of Our Traditional Ethics. (New York: St. Martin’sPress, 1995) 20–35; Truog, R. D. “Is It Time to Abandon Brain Death?” Hastings Center Report 27, no.1 (1997): 29–37.26 Moosa, 1999.27 Peter McCullagh. Brain Dead, Brain Absent, Brain Donors: Human Subjects or Human Objects.(West Sussex: John Wiley & Sons Ltd, 1993), 33.28 Plum, 1999, 60.29 Haque, 2008; Birgit Krawietz, “Brain Death and Islamic Traditions: Shifting Borders of Life?” In IslamicEthics of Life: Abortion, War, and Euthanasia, ed. Jonathan E. Brockopp: University of South CarolinaPress, 2003. 195–213.



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reconcile brain death within the Islamic tradition? The OIC-IFA assessment of brain deathfails to address these other questions and it begs the question as to whether philosophersand Islamic theologians should have been given more voice.

Irreversibility of vital functions of the brainThe OIC-IFA’s stipulation of irreversibility is also problematic for medical scientists.

Since brain death generally leads to withdrawal of life support or at least limitation of care,a natural history of what is the final clinical state of brain dead individuals is wanting.While we do know that the prognosis of those who are declared brain dead is abysmal,that none will likely ever recover any semblance of consciousness, we do not know ifcertain functions of the brain may return. Given the lack of clarity around the vitalfunctions of the brain, this becomes all the more important. Some researchers note thatsome brain stem reflexes may reappear after initial absence in brain dead individuals, andwe do know that some proportion of the brain may continue to function in brain deadindividuals. Are these important discussion points within Islamic deliberation?30

While it may not be practical due to scarcity of resources to continue life supportindefinitely for individuals who are brain dead, or the return of various brain functionsmay be trivial, these are different questions that require a separate clear framework toaddress. Furthermore there have been rare reports of individuals returning to life afterbeing classified as brain dead which are dismissed by most clinicians as cases ofimproper diagnosis.31 Nonetheless, these reports speak to difficulty of diagnosing braindeath and the potential for misdiagnosis given the widespread variability in clinicalcriteria.32 Should the inaccuracies of diagnoses and variability in brain death policies beconsidered when formulating religious rulings on brain death? The OIC-IFA ruling doesnot address these issues.

Degeneration of the brainLastly, the OIC-IFA ruling requires that the brain has started to degenerate as

witnessed by specialist physicians. Again, a lack of clarity exists, leaving the clinicianwithout adequate guidance on how to proceed with diagnosing brain death. While themedical community recognizes, as a basic conceptual level, degeneration of the brain(such as in dementia or stroke), never do clinicians speak about an acute process of lossof brain cell function until the process is clearly severe and irreversible. In brain deathprotocols around the world there is no mention of verifying brain degeneration, at besta proxy where physicians measure blood flow to the brain is listed as an optionaldiagnostic test. No protocol asks one to look at cellular damage since ascertainingdegeneration of the brain would require obtaining brain tissue for visual analysis. TheAmerican Academy of Neurology continues to struggle with intermediate diagnoses,such as “persistent vegetative state,” “minimally conscious state,” and other neurologicaldiagnoses that speak to severe brain injury, but none are in general use for making

30 McCullagh, 1993.31 “Dead Man Says He Feels Pretty Good.” Herald Sun 2008.32 David M. Greer, Panayiotis N. Varelas, Shamael Haque, and Eelco F. M. Wijdicks. “Variability of BrainDeath Determination Guidelines in Leading Us Neurologic Institutions.” Neurology, 2008. 284–89.



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end-of-life decisions. It is unclear as to why the OIC-IFA considered it important to addthis caveat, and it is at best, clinically irrelevant and at worst, confusing to practicingdoctors. This confusing criterion begs the question as to whether health policy orappropriate medical expertise where given voice in the deliberation.

Gaps in the IMANA statementThe IMANA statement takes an opposite extreme to the OIC-IFA statement. They

don’t venture into conceptual issues around brain death and simply put, brain death, toIMANA, is determined when the physician says so. IMANA bypasses or answers thequestions to the OIC-IFA statement of who decides the functions of the brain; thequestion of irreversibility; and the diagnostic criteria for brain death in the same manner.To that end, the IMANA statement, which came out nearly 20 years after the OIC-IFA, fillsa needed gap by deferring to physicians.

Non-acceptance of brain death in Islamic circles abroad and the USThis simplicity of their statement is not without its shortcomings. The IMANA

statement raises new questions and potential problems that are no less important thanthose raised by the IFA-OIC statement. Unlike the OIC-IFA statement, which explicitlyallows for non-acceptance of brain death, the Perspective does not offer a dissentingopinion and seems to cite uniformity within Islamic law that brain death equated to legaldeath. There exists a long history of non-acceptance of brain-death among prominentIslamic scholars beginning with the first recorded discussion of brain death at anInternational Fiqh conference where the conference attendees declined to issue astatement citing the need for additional study, consultation and consensus building toregarding brain death, to a 1994 decision by the Majlis al-Ulama in Port Elizabeth SouthAfrica where organ procurement from brain dead individuals was judged to be akin tomurder, implicitly considering brain dead individuals as still living.33 As there exists asubstantial back-and-forth within the Muslim legal community that would ostensibly beimportant to Muslim medical practitioners and religious leaders such oversight is a failingof the Perspective.

The issue of not explicitly offering a dissenting opinion allowing for non-acceptanceof brain death is key in the context of IMANA’s stated goal to speak to the needs ofMuslims in North America. In particular, it ignores the Shiite minority denominations thathad religious leaders present at the OIC-IFA table and are implicitly allowed to not acceptbrain death through recourse to the cardiopulmonary criteria. Grand Ayatollah Sayyid Alial-Husayni al-Sistani, the grand Shi‘ite muftı of Iraq, does not accept neurological criteriafor death, noting that every cell has a soul. His opinion carries significant weight withinthe American Muslim Shiite population, numbering in the hundreds of thousands, andmost significantly for Muslims in Southeast Michigan. Southeast Michigan is significantfor being home to the largest concentration of Arabs outside of the Middle East and thelargest concentration of Shiite Muslims in the United States and they look to him for

33 Haque, 2008. Ebrahim 2005. “Organ Transplantation- Fatwas.” In Islamic Voice: Islamic Voice, 1998.



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spiritual guidance in all realms of life.34 Indeed, there are reports of Shiite Muslims who,even when presented brain death, seek all methods, including legal, to continue lifesupport on a patient who is brain dead.35

Controversies in the bioethics communityFinally, the Perspective, being much more recently written, fails to deal with new

questions raised since the earliest deliberations over brain death. Since the widespreadadoption of brain death, there have been multiple issues in practice. New science furtherbreaks down the levels of brain injury, complicating the diagnosis of brain death.Published reports suggest wide variability across medical centers in how brain death isdetermined.36 And, the linking of physiologic determinations of “partial” death for thepurposes of organ donation and recovery has led now to a new controversial method oforgan recovery, donation after cardiac determination of death (DCDD), which furthercomplicates the relationship between physiology, life support, and the definition ofdeath. These and other questions remain entirely unanswered by the source that onewould expect to be able to most effectively comment on these controversies, which arelargely medical in nature.

DiscussionWe are examining the writings on brain death with the intent of comparing them to

an asserted “gold standard” we claim exists on how to best approach a bioethicsquestion. With this in mind, we believe that to best measure the products of bioethicaldeliberation, we can and should hold them up to one or several referents:

1. We can ask if currently available products meet the aims of applied Islamic bioethicsoutlined above, and elaborate on how, if it all, the products meet those aims and wherethey fail.

2. We can see if the products meet the needs of the stakeholders outlined above, and whereand how they fail to meet the needs of those stakeholders,

3. We can see if the products adequately reflect the process of answering a bioethicsquestion, and where shortcomings in any of those products reflect failures to maintainfidelity to the process we outlined above.

First, the challenges of dealing with the question of brain death as viewed from theIslamic tradition and Muslim peoples:

1. Brain death is, at best, controversial among Sunni Scholars and not accepted fully, or atall, by several Islamic scholars and juridical councils in the Muslim world.

2. There are other denominations in Islam, with large numbers of adherents in the US, whodo not accept brain death at all.

34 Rachel Zoll, “Activists Urge Shiite Muslims to Embrace American Citizenship.” In USA Today: USAToday, 2010.35 Hasan Shanawani, “Cross-Cultural Perspectives in End-of-Life Care: What Do Our Patients Want?” InHealth Services Research Conference, Henry Ford Hospital, 2006.36 Greer, 2008.



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3. Outside of Islam, there are prominent bioethics and clinical scholars who question theuse of brain death clinically.

4. The definition of brain death is not uniform, and varies from institution to institution andover time.

5. The Islamic legal considerations surrounding the question of brain death are complexand require substantial knowledge beyond that of physicians and Islamic jurists alone.

Looking at the OIC-IFA and IMANA statements on brain death, they certainly attemptto grapple with bioethical issues that are new to the Islamic tradition. Arguably, theOIC-IFA statement does a relatively better job of dealing with the questions of its timethan the Perspective from IMANA. With regard to the second aim of applied Islamicbioethics, that of dealing with modernity, the OIC-IFA statement is clearly adequate inthat traditional scholars attempt to deliberate on new challenges to Islamic tradition,although they fail to raise important existential questions raised above. The IMANAstatement, on the other hand, makes comparatively little attempt to engage Islamictradition or law. Finally on the third aim, both statements arguably set the stage fordiscussions outside their circles, but neither set up a process to engage other intellectual,religious, academic, or professional disciplines.

Do the statements meet the needs of their stakeholders? The OIC-IFA statementcertainly speaks to the community of Muslim religious scholars in understandablelanguage. But it does not speak to doctors, medical centers, and other, non-religiouspeople with an interest in brain death. Likewise, the Perspective gives its reader few, ifany, tools to contemplate bioethical questions for his own practice. It also offers little toreligious leaders, medical centers, and policy institutes to guide discussions on how toimplement IMANA’s support of brain death. In this regard, both statements are goodstarts, but ultimately, incomplete.

Using the process outline above, both statements share similar successes andfailures. It would seem at first glance that the various statements of religious organiza-tions (OIC-IFA, IMANA) and of individuals all attempt to similarly State the issue orquestion: What, if anything, defines death to the Muslim; does God guide His servants asto how to define death? Furthermore, they make a good faith effort, within their owncircles, to identify and clarify important elements: the OIC-IFA experts do a good job ofidentifying important terms and religious principles and the IMANA statement improveson previously ambiguous statements on the pathophysiology of brain death and thenecessary qualifications of the doctors the best they can, short of bringing in additionalexpertise, to identify relevant facts. However, none of them bring in a plurality ofreligious, medical, or ethical perspectives, and none consider lay peoples and theirpossible response to pronouncements on brain death. From there, the next step in theprocess, Re-examination of the question in the light of the key identified elements, fails onits face because it cannot possibly occur without the previous step. The failure of IMANAto acknowledge the concerns of Southeast Michigan’s Shiite community and othercamps that do not recognize brain death, suggests that the consideration of implicationsand practical constraints to have been incomplete. Finally, there exists no current



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consensus on a proposed solution, or reconciliation or acknowledgement of controver-sies, our ultimate goal.

To develop an omnibus statement to guide Muslims on the question of brain death,it would be necessary to have experts familiar with the following:

1. The physiology of the brain and clinical implications of varying levels of brain death,2. The medical profession’s understanding and peer statements on brain death,3. Popular understanding and acceptance of definitions of death,4. Social scientists familiar with select communities (such as Shiite Muslims and Orthodox

Jews) who will do not accept brain death,5. The debate among Muslim legal scholars across the Muslim World,6. Islamic arguments for and against definitions of brain death,7. Policy experts who would develop “conscience clauses” and other legal and adminis-

trative methods of grappling with patients and health practitioners who do not acceptbrain death,

8. Clinical, administrative, and other people from the transplant community, who are mostlikely to interact with families of brain-dead patients and will be impacted by any changein definitions and clinical practice,

The above list of experts is evident from statements of brain death analyzed in thispaper, and the shortcomings of the various statements on brain death are brought to lightwhen measured against one another, and when considered in light of easily availablenews and information about the controversies and challenges of brain death. It is notintended to be complete, for example, a new method of “diagnosing death” for thepurposes of facilitating donation after cardiac death (DCDD) brings new controversiesto the physiology, popular understanding, and social uses of death.

In the end, the OIC-IFA and IMANA statements, when considered as glimpses intothe deliberative processes that led to their development, are valuable first steps.However, as we proceed forward with efforts to grapple with new bioethical questions,and continue to struggle with older ones, we believe the process would benefit from amore well-rounded team of experts that will provide a richer, more excogitate responseto complex bioethical and religious questions raised from medicine, biology, and health.

AcknowledgementsThis paper was presented in partial form at the 2009 Islamic Medical Association

of North America Annual Convention in Washington DC, and at the 3rd Islam andBioethics International Conference in Antalya Turkey in 2010. Dr. Padela’s time-effortand project funding was through the Robert Wood Johnson Foundation ClinicalScholars Program. We thank the tireless effort, teaching, and intellectual contentreview of Shaykh Mohamed Amin Kholwadia, resident scholar at the Dar-ul-QasimIslamic Educational Institute, Glen Ellyn, IL and all those who participated in ourbi-monthly scholastic seminars.



46

Islamic bioethics: between sacred law, livedexperiences, and state authority

Aasim I. Padela

Published online: 16 April 2013

© Springer Science+Business Media Dordrecht 2013

Abstract There is burgeoning interest in the field of “Islamic” bioethics within

public and professional circles, and both healthcare practitioners and academic

scholars deploy their respective expertise in attempts to cohere a discipline of

inquiry that addresses the needs of contemporary bioethics stakeholders while using

resources from within the Islamic ethico-legal tradition. This manuscript serves as

an introduction to the present thematic issue dedicated to Islamic bioethics. Using

the collection of papers as a guide the paper outlines several critical questions that a

comprehensive and cohesive Islamic bioethical theory must address: (i) What are

the relationships between Islamic law (Sharıʿah), moral theology (us˙ul al-Fiqh), and

Islamic bioethics? (ii) What is the relationship between an Islamic bioethics and the

lived experiences of Muslims? and (iii) What is the relationship between Islamic

bioethics and the state? This manuscript, and the papers in this special collection,

provides insight into how Islamic bioethicists and Muslim communities are

addressing some of these questions, and aims to spur further dialogue around these

overaching questions as Islamic bioethics coalesces into a true field of scholarly and

practical inquiry.

Keywords Moral theology · Muslim medical ethics · Islamic legal theory

A. I. Padela (&)

Initiative on Islam and Medicine, Program on Medicine and Religion, The University of Chicago,

5841 S. Maryland Ave., MC 5068, Chicago, IL, USA

e-mail: [email protected]

A. I. Padela

Section of Emergency Medicine, Department of Medicine, The University of Chicago, 5841 S.

Maryland Ave., MC 5068, Chicago, IL, USA

A. I. Padela

Maclean Center for Clinical Medical Ethics, The University of Chicago, 5841 S. Maryland Ave.,

MC 5068, Chicago, IL, USA

123

Theor Med Bioeth (2013) 34:65–80

DOI 10.1007/s11017-013-9249-1

47

Patients and healthcare providers embody the engagement of religion with modern

medicine on a daily basis. Patients’ salient health beliefs and health care choices are

often informed by religious values and understandings. Religion also influences the

practice patterns of healthcare professionals in both visible and unconscious ways

[1, 2]. Religion, therefore, significantly shapes both patients’ and providers’ health

related behaviors. Yet, when it comes bioethics, the physician’s obligations toward

patients are more commonly framed within a secular professional framework. The

venture toward an ethics detached from religion is a more recent phenomenon

—“bioethics began in religion,” notes the prominent ethicist Albert Jonsen [3, p.

23]. The need to speak a common ethical language across cultural and religious

differences has given rise to a secular bioethics, especially as medical education,

practice, and technology continue to globalize and societies become increasingly

diverse and morally plural. Nonetheless, since the field of bioethics is concerned

with the moral and philosophical implications of biomedicine, it stands to reason

that religious understandings and interpretations continue to provide their adherents

(both patients and providers) with resources for defining, articulating, and

evaluating the moral, philosophical, and ethical questions relevant to biomedicine.

Islam employs a number of ethical frameworks to guide the more than 1.5 billion

Muslims toward three important ends: that which is believed to be “good”; that

which God requires of them (obligations); and those actions that lead to Paradise.

Traditional Islamic ethical frameworks, however, have only recently been applied to

controversies in biomedicine in an attempt to meld together an “Islamic bioethics.”

This is in part due to the fact that Islam is both a lived tradition with its own

intellectual development, and a revealed religion from the perspective of its own

epistemological paradigm. Thus, the source-material for “Islamic” bioethical

inquiry is scattered across several disciplines (theology, moral philosophy, and

law). Further, since Muslims lack a singular religious authority charged with

distilling doctrine for the community, Islam deploys a variety of approaches to

ethics. In fact, the tradition enshrines ethical pluralism in its epistemic approach,

and as its core tenet, the tradition teaches man’s inherent fallibility and consequent

inability to wholly discern Divine will.

The present issue of the Journal of Theoretical Medicine and Bioethics provides aglimpse into the emerging field of Islamic bioethics. The papers collected herein are

products of a conference entitled, “Where Religion, Bioethics, and Policy Meet—

An Interdisciplinary Conference on Islamic Bioethics and End-of-Life Care.” The

conference was hosted by the University of Michigan on April 10–11, 2011, and

directed by me and Dr. Hasan Shanawani. It was motivated by a concern that

Islamic bioethical discourse, particularly in the United States, does not adequately

meet the needs of its ground-level consumers: Muslim health professionals, patients,

and religious leaders [4]. It is true that many stakeholders, from physician

professional organizations to Islamic juridical bodies, engage in Islamic bioethics

work, and a variety of disciplinary experts, including anthropologists and legal

scholars, speak of an Islamic bioethics. There is also burgeoning interest in the field

from all of these and other stakeholders. However, the disseminated products of

Islamic bioethical discourse often appear disconnected from the bedside realities of

medicine, and remain inconsistent in their modes of ethical analysis. These palpable

66 A. I. Padela

123 48

shortcomings stem, in part, from disciplinary experts frequently remaining

sequestered in their professional circles and rarely engaging in conversations with

multiple ground-level bioethics consumers. Our conference at the University of

Michigan, therefore, aimed to bring together Islamic scholars, religious leaders,

social scientists, health professionals, and other disciplinary experts to discuss the

Islamic ethico-legal tradition, bioethics, medical practice, and health policy in the

American context. The structure of the conference centered around a series of

panels, each representing a particular discipline or stakeholder community engaged

in Islamic bioethics work. The presenters laid out their methodological approaches

to bioethics concerns, and the conference concluded with a set of roundtable

discussions about end-of-life care.1

In the spirit of the conference, the contributors to this special issue are a diverse

set of scholars, including a professor of law (Robert Vischer), several seminary-

trained Islamic jurisconsults (e.g., M. Amin Kholwadia and Steven Furber),

physicians (e.g., Faisal Qazi, Ahsan Arozullah), bioethicists (e.g., Howard Brody),

and an anthropologist (Sherine Hamdy). Collectively, the articles introduce the

reader to some of the reasoning, methods, and debates within Islamic bioethics, and

map out contemporary contexts that frame Islamic bioethical discourse. The

collection also offers insight into several critical overarching questions that a

comprehensive and cohesive Islamic bioethical theory must address. In what

follows, I highlight some of these questions by referring to the papers in this

collection. At the outset, I would like to refer the reader to the glossary at the end of

this paper, which defines several of the Islamic ethico-legal terms used throughout

this collection.

What are the relationships between Islamic law (Sharīʿah), moral theology(uṣūl al-Fiqh), and Islamic bioethics?

Often translated as Islamic law, the Sharīʿah and its related sciences enjoy a

privileged status within the Islamic tradition as the crowning achievement of

Muslim intellectual effort. These sciences continue to be a primary focus of study

within traditional seminaries and within the academy. Indeed, Islamic law occupies

a central place in both the individual Muslim psyche and in the greater Muslim

society, and the Sharīʿah is a primary tool for Muslim engagement with modernity.

Therefore, one must rely heavily on the tools and resources of Islamic law when

attempting to judge, as a matter of “Islamic” bioethics, the appropriate ordering of

medicine and righteous conduct of patients and healthcare providers.

This becomes clearer when one understands that Islamic law has both legal and

moral content. Sharīʿah etymologically means “the way to the water” and represents

an Islamic path to salvation. In other words, a Muslim living within the bounds of

the Sharīʿah is deemed to be living in accordance with what God requires of him or

1 For more information about the conference as well as video recordings of the lectures, see https://

pmr.uchicago.edu/studies/content/where-religion-bioethics-and-policy-meet-interdisciplinary-conference

(accessed March 12, 2013). .

Islamic bioethics 67

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https://pmr.uchicago.edu/studies/content/where-religion-bioethics-and-policy-meet-interdisciplinary-conference

https://pmr.uchicago.edu/studies/content/where-religion-bioethics-and-policy-meet-interdisciplinary-conference

her. The Sharīʿah, therefore, more accurately represents both a corpus of rules

(aḥkām, sing. ḥukm) and a moral code. Accordingly, to discern the rules of the

Sharīʿah is to attempt to assess whether actions lead to salvation or to condemnation

in the hereafter. The science that serves as the fountainhead for this type of ethical

deliberation is uṣūl al-fiqh and it is the arbiter of right and wrong. Uṣūl al-fiqh both

identifies the sources of ethico-legal knowledge, and lays down discursive rules for

ethico-moral reasoning. The end product of Islamic ethical deliberation employing

the uṣūl al-fiqh methodology is fiqh, commonly translated into English as law.

Fiqh is a term widely used in modern parlance and in ethico-legal discourse, but

it is often misunderstood. With reference to the Sharīʿah and uṣūl al-fiqh, fiqh refers

to an understanding of what the divine law has to say about the merits and

obligations attached to an action. When a jurist employs the uṣūl al-fiqhmethodology, he is attempting to gain an understanding (fiqh) of the “rightness”

or “wrongness” of an action by “discovering” the rule (ḥukm) communicated by

God through the medium of the source-texts of Islam. A source of confusion for

non-specialists is that often times the terms fiqh and ḥukm are used interchangeably

to refer to an Islamic ruling, although technically the two terms are distinct.

According to the uṣūl al-fiqh methodology, the end process of coming to an

understanding, or discovering the Divine law, is arriving at a ḥukm taklīfī or a ḥukmwaḍʿī [5, 6]. Ḥukm taklīfī is a specific determination of whether there is a moral

obligation for a Muslim to perform or to avoid a particular action. This

determination is made by assessing the expected afterlife ramification—God’s

reward, punishment, or indifference—attached to an action. The second type of fiqhis ḥukm waḍʿī. A ḥukm waḍʿī imposes a cause, condition, or hindrance to a specific

action as gleaned from the source texts of Islam, in essence, by linking the merit of

every action to God’s approbation, condemnation, or indifference (as best as

humans can) through interpretation of the scriptural source texts. The Sharīʿahrepresents a moral code: it is a guide to that which is ethical.

Yet, while Islamic law has an undeniable ethical character, it does not represent

the totality of what the Islamic tradition has to say about ethical formation. For

example, the cultivation of Godly virtue (an activity that gains reward in the

hereafter) is the central concern of Islamic sciences related to spirituality, taṣawwuf.Similarly, ethical and virtuous character development is a core concern of the

Islamic science of manners and morality, ʿilm al-ahklāq. While there is room for

reasoned debate about how these somewhat esoteric sciences come together with

Islamic law in the construction of an Islamic bioethics, such a dialogue is often

precluded by experts trying to apply distinctions between the legal, ethical, and

moral, as derived from a Western philosophical perspective, to the Islamic tradition.

Such clear distinctions are not inherent to an Islamic moral universe.

Four papers in this collection provide windows into the complex methods,

constructs, and content of Islamic ethico-legal deliberation. Khalil Abdur-Rashid, a

doctoral candidate in Islamic Law at Columbia University and a seminary-trained

Imam, along with colleagues Musa Furber, a seminary trained Islamic jurisconsult,

and Taha Abdul Basser, a university-based Islamic law expert, offers a typology of

Muslim ethical decision-makers and the sources and methods used in Islamic ethical

deliberation. According to these authors, bioethics is “Islamic” only when “the

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foundation upon which it is constructed, the process which is undertaken in

progressing towards the end, and the means through which its goals are achieved are

accomplished utilizing an Islamic methodology from the sources of Islamic ethics

[read law].” This methodology, for them, is uṣūl al-fiqh, and it follows that

“Islamic” ethicists must possess training in uṣūl al-fiqh and specialize in its

application to the field of bioethics. Given this thesis, the authors provide a general

overview of sources (uṣūl) of Islamic ethics (al-fiqh) and proceed to outline three

archetypes of Islamic ethicists: (1) the jurisconsult (muftī/faqīh), (2) the professor

(mudarris), and (3) the author (muṣannif). After introducing the reader to a typology

of Islamic ethicists and the sources these ethicists use to determine whether actions

are ethical (the yardstick being reward or punishment in the hereafter), the authors

introduce the reader to the inner workings of an Islamic ethical deliberation.

Methodological techniques used by Islamic ethicists, such as differentiation (furūq),preponderization (tarjīḥ), and the consideration of public interest (maṣlaḥah) are

explained, and the authors close by outlining several methodological devices to

which an Islamic ethicist may resort when seeking to further refine his assessment.

These devices include referring to the higher objectives/aims of Islamic law

(maqāṣid) in order to “determine the overall correctness and value of the decision,”

or looking to Islamic legal principles (qawāʿid) and controls (ḍawābiṭ) since they

are “instruments to guide one’s precision and accuracy in reaching a conclusion,”

but are not overall determinants of a decision. Finally, the authors note the

increasing use of group decision making processes (ijtihād jamāʿī) in Islamic

bioethics.

Dr. Ahsan Arozullah, along with Shaykh Amin Kholwadia, a seminary trained

Islamic scholar, contribute a piece that highlights Islamic theology in bioethical

decision making. Their paper expounds on the implications the theological concept

of wilāyah (authority and governance) has for Islamic bioethics discourse. Starting

from where Abdur-Rashid et al. left off, these authors suggest that the concept of

wilāyah undergirds moral authority accorded to Islamic juridical councils employ-

ing ijtihād jamāʿī for bioethics. They note that Islamic authorities are imbued with

three different levels of wilāyah (moral, legal, political) and that each level of

authority places a commensurate set of obligations upon Muslims to act in

accordance with a particular authority’s decree.

Rooting themselves within the Maturıdı school of theology,2 the authors begin by

referencing the theological supposition that is the foundation of Sunni uṣūl al-fiqh—most prominently that of the H

˙anafı school of law3—which states that “sound

human reason may determine moral value in human actions in this world, such as

goodness in speaking the truth or evil in lying … [yet] divine revelation is the only

source from which to determine sin or reward for these actions in the afterlife.”

Accordingly, Islamic bioethical decision making is primarily concerned with “sin or

reward in the afterlife” and evaluates the worldly consequences of Islamic

2 Sunni Islam has two prominent schools of extant scholastic theology (kalām): the Maturıdı and the

Ashʿarı. Often referenced in discussion of kalām is the Muʿtalizite school which more closely relates to

Shiite Islam. Please see Sherman Jackson [7, chs. 1–4] for a concise overview.3 The extant Sunni schools of Islamic law are four and are named after their promulgators: Malikı,

H˙anafı, Shafiʿı, and H

˙anbalı. Please refer to any of a number of Islamic legal manuals for further details.


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judgments secondarily. According to the authors, actions that are rewarded in the

afterlife have a “tangible ‘benefit’ in this world,” and similarly, actions that are

sinful (punishable in the hereafter) carry with them “a tangible ‘harm’ in this

world.” They emphasize that sound human reason may determine these tangible

“benefits” and “harms,” whereas revelation is the only source of knowledge about

afterlife ramifications. Given this backdrop, these authors also comment on the

primary sources (uṣūl) of Islamic knowledge (al-fiqh) and categorize the output of

Islamic ethical deliberation about an act (ḥukm taklīfī) along a moral gradient and

with a corresponding level of obligation to perform or avoid the action. The authors

then proceed to discuss the types of wilāyah and the duty of Muslims to obey

authorities with each of these types of wilāyah. For example, they note that Muslims

living in a non-Muslim land are not bound by political wilāyah since there is no

Muslim state authority to obey, yet they are required to “follow the law of the land.”

Moving to the application of wilāyah in the realm of bioethics, the authors note a

moral obligation of Muslims to ask Islamic jurisconsults about ethical dilemmas

since only Islamic jurists have knowledge about whether an action carries sin. Such

scholars, in turn, have an academic wilāyah over the laity and a Muslim “is

accountable … for not following through on the opinion of the scholar.” Using the

case example of whether or not it is ethico-legally permissible to use porcine

insulin, the authors conclude by working through the levels of wilāyah and the

corresponding obligations of Muslims to act in accord with those who have wilāyah.Tariq Ramadan, professor of contemporary Islamic studies at the University of

Oxford, begins his piece by discussing the relationship between fiqh and uṣūl al-fiqhand from there moves to discuss other aspects of the Islamic ethico-legal tradition.

His commentary focuses on mapping out several challenges for the field of applied

Islamic ethics. He discusses first the “need to acquire a better understanding of

terminology.” For example, he notes that the term ethics has Greek origins and does

not have an exact correlate within the Islamic tradition. He proceeds to comment on

whether the Islamic ethico-legal tradition must be propounded solely by referring to

the scriptural sources or whether the context, i.e., social reality, can serve as a

normative source material. He also questions the preoccupation Muslims have with

the end-products of uṣūl al-fiqh deliberation—the rules (aḥkām singular ḥukm). Inhis view, the Maqāṣid as-Sharīʿah, the objectives or end-goals of Sharīʿah, shouldbe a parallel concern in Islamic ethical deliberation. Since the objectives of the law

are rationally derived while the rules, aḥkām, rely more heavily on textual sources,

considering both the rules and the objectives together leads one to rely equally on

reason and revelation. This harmonious “middle path” in applied Islamic ethics is

arrived at only when scholars search for ethical guidance in both the text and the

context and consider the rulings (aḥkām) as well as the objectives (maqāṣid) of theIslamic ethico-legal tradition. In the final portion of his paper, Professor Ramadan

outlines several concepts that are critical for any Islamic bioethics project. He notes

that the Islamic ethico-legal tradition leans toward a reformatory paradigm, al-iṣlāḥ,and that Islamic ethics should be focused not on adapting the moral code to meet the

needs of society but, rather, on “betterment and purification” of society. His piece

closes with a comment on Islamic authority structures. Traditionally, Islamic

scholars were considered the sole authority in matters of ethics and law. Professor

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Ramadan advocates a “shift in the center of gravity of authority” such that alongside

Islamic jurisconsults, scholars of the context, e.g., experts in fields of social and

natural sciences, are accorded authority within Islamic ethical deliberation. By

doing so, he argues that the natural and social sciences will be able to provide

normative ethical content to Islamic ethics projects.

In their manuscript, Dr. Faisal Qazi, a neurologist and ethicist, and his colleagues

point out that the end-product of Islamic ethico-legal deliberation, a ḥukm, is onlyan approximation of divine law. These authors suggest that within Islamic bioethical

debates, rulings (aḥkām) arrived at by Islamic jurisconsults are often treated as

certain knowledge and not as probabilistic assessments. Consequently, when rulings

are treated as determinate, little space is accorded for dissenting opinions or for

challenging a particular legal scholars’ ethico-legal reasoning. These authors

consider this current situation to be antithetical to the spirit of Islamic ethico-legal

discourse. They note that uṣūl al-fiqh is founded upon the fact that there may be

multiple “right” answers to any scenario. This pluralism implies that most ethico-

legal rulings are probable determinations and not conclusive assessments.

Overlooking this innate characteristic of Islamic law results in a rigid “Islamic”

bioethics.

To illustrate their thesis, the authors analyze Islamic ethico-legal deliberations

about brain death. They note that one of the arguments used by Islamic ethicists to

oppose brain death is that the medical diagnosis of brain death is not definitive.

Hence the legal principle that “certainty is not eroded by doubt” (al-yaqīn la yuzulubi ‘l-shakk) is used to buttress arguments that legal death occurs only with

cardiopulmonary collapse. The authors suggest that while Islamic ethicists are

willing to reject medical data because it is probability based, Islamic ethico-legal

judgments for or against brain death also do not reach a level of certainty. Indeed,

the uṣūl al-fiqh methodology only approximates God’s intent because it relies on the

fallible medium of human interpretation. Given that both Islamic ethicists and

scientists use methodologies that are probabilistic, the authors suggest the need for a

more humble multidisciplinary Islamic bioethics discourse in which clinicians and

Islamic legal experts work side by side to meet the needs of Islamic bioethics

consumers and acknowledge that any conclusion they put forth is only an

approximation, whether the determination is made in the realm of medical science

or in the realm of Islamic ethics.

What is the relationship between an Islamic bioethics and the lived experiencesof Muslims?

The place of lived experience as source-material for ethical norms is a widely

debated area in religious ethics. Seminary based religious studies often focus on

engaging sacred source-texts to derive a particular approach to evaluating human

behavior and social reality. Alongside a written tradition that preserved sacred texts,

religious communities often also preserved an oral tradition and authority structures

that assisted with the interpretation of the textual sources. Academic religious

studies, therefore, commonly involved exploring the ways in which religious texts


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and textual authorities evolved and developed. In the past several decades, however,

there has been a shift in the academic study of religion away from texts and the

interpreters of texts towards more detailed studies about the lives of religious

adherents. While sociological approaches to religious studies offer a new vantage

point for investigating how religious traditions provide meaning to believers on the

ground, there is considerable debate about the normative value of these experiences.

Some suggest that social science approaches redefine religious traditions as purely

social phenomena, bracketing off any truth claims that religious systems may

propagate. Others suggest that religion only exists through the interpretive medium

of human life. Therefore, examining the lives of religious adherents is central to

discerning the ideal structure of society and of human conduct advanced by a

particular religious tradition. Different religious traditions, as well as the different

religious streams within each of them, may approach these controversies in varied

ways. Hence, attempts at distilling an Islamic bioethics must tackle the thorny issue

of determining where the lived experiences of Muslims belong in a normative

framework.

In an attempt to bring clarity to the study of Islamic approaches to bioethical

challenges, I have called for a distinction between the field of Islamic bioethics and

Muslim bioethics [4, 8]. I consider Islamic bioethics to be a field anchored within

the ethico-legal traditions of Islam and concerned with the bioethical discourse

produced by the bearers of that tradition. Muslim bioethics, in my view, represents

the sociological and anthropological study of how Muslims act when encountering

medicine and biotechnological advances. In other words, the former concerns itself

with the study of texts, doctrines, and those who produce texts and doctrines, while

the latter studies the human actors that in partial and varied ways engage these texts

and doctrines while facing bioethics challenges.

Such a partition between Islamic and Muslim bioethics gives rise to questions

about the relationship between the social sciences and the Islamic ethico-legal

sciences. To date, Islamic approaches to bioethics have largely ignored these

questions, and as a result, Islamic bioethical discourse often devolves into meetings

in which social scientists and medical practitioners talk past the experts in Islamic

law, and vice versa.

To illustrate the challenge, let us consider surrogate decision making at the end-

of-life. Studies show that the majority of surrogate decision makers find making

choices about the continuation of medical intervention for their loved ones to be

highly stressful [9, 10]. Indeed, some studies find the levels of stress in these

surrogates to be analogous to levels found in people suffering from severe trauma.

This empirical fact may be interpreted as a variable that should be weighed when

considering the proper models of surrogate decision making in end of life care.

Leaving aside the fact that Islamic bioethics discourse is silent when it comes to

models of decision making, the question is how to incorporate the “truths” from

empirical social science into an Islamic bioethical approach. In the traditional uṣūlal-fiqh paradigm, such “facts” may only enter the discursive processes of ethico-

legal assessment after a thorough interrogation of the primary sources, uṣūl. If thetextual sources are silent, then facts from social science may be considered. One

manner in which this may be accomplished is through recourse to the secondary

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source of ʿurf, custom, and its related legal maxim, qāʿidaḥ, al-ʿādah al-muḥakkimaḥ, “customs inform rules.” Both the secondary source and the legal

maxim privilege social considerations and habit when the primary sources are silent.

Maqāṣidī approaches to fiqh do not directly address the issue in so far as they do not

dictate a prioritization schema for when and how social reality governs ethico-legal

deliberation. It is therefore apparent that social science data does not easily fit into a

normative Islamic ethico-legal framework.

So how does Islamic bioethics weigh social science data about patients, medical

practice, and biotechnology in setting out Islamic bioethics norms? On the one hand,

if Islamic bioethics approaches neglect lived experiences, the field would be a

disembodied intellectual exercise. On the other hand, if Islamic bioethics

approaches do not clearly demarcate the place for social science in its methodology,

confusion as to what is “Islamic” about Islamic bioethics would abound. Further, in

so far as Islam upholds Deistic subjectivism (the concept that “things” are

meritorious only because God has labeled them as such and wrong because He has

declared them to be) as a foundational principle for ethico-legal theory, caution

must be exercised to clearly mark out the entry points of social science approaches

and natural law theory into the inner workings of Islamic bioethics. Otherwise,

Islamic bioethics as a field may become a confused amalgam of clashing

epistemological frameworks that cannot set out ideals for human conduct.

Two papers in this series relate to the debate around how to consider religious

ideas in the formulation of a religious approach to bioethics. Howard Brody, a

prominent scholar of modern bioethics, and colleague Arlene Macdonald, a

religious studies expert, pen a piece that calls for an expanded definition of religion

beyond sacred texts and textual authorities, such that it encompasses religion’s

sociological influence on individual’s identities and values. They remark that for

bioethics to appropriately engage with religious beliefs, values, and identities, “it

helps to view religion as lived experience as well as a body of doctrine.” According

to these authors, the bioethics community still remains attached to “defining the

substance of religion as sacred texts, authoritative structures, and comprehensive

systems of meaning.” In doing so, they privilege a Christian and Western

conceptualization of religion that “artificially stabilizes” religious identity. The

problem they note with this view is that it leads to stereotyping religious people as

they are assumed to act in “ways pre-determined by authoritative scriptures and

institutional bodies.” Such an account of religion only provides bioethicists with

knowledge about what the religious orthodoxy ought to believe. It does not provide

insight into what is actually believed and practiced.

Brody and Macdonald suggest instead that bioethicists should look to the

developing social theory approaches to religion, in which scholars postulate that

religious knowledge may be as much somatic as it is textual, and study the practices

of ordinary religious adherents. In doing so, religious tradition becomes one of the

“multiple social and cultural inputs that construct religious persons,” and the

diversity of ways in which members of a faith community are influenced by their

religious tradition becomes recognizable. A sociological conceptualization of

religion would foster a patient centered approach to bioethical challenges that is

attuned to finding solutions based on an individual’s particular conceptualization of


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his or her religious identity. Brody and Macdonald’s proposal has implications at a

societal level and for public policy—a topic to which I shall return shortly.

Sherine Hamdy, an anthropologist, in her article, studies the reasons for the

refusal of Egyptian doctors to diagnose death by neurological criteria. Relying on

years of ethnographic study, she recounts the concerns and experiences of Egyptian

patients, religious scholars, and medical practitioners with organ transplantation and

brain death. In her view, the “lived experiences” of Egyptian patients and medical

practitioners belies a “cohesive or homogeneous” field of Islamic bioethics. She

suggests that health policy stakeholders and mass media misrepresent the debate

over Egyptian organ transplantation policy as a clash between the values of a

Western medical and bioethics community and the objectives of Islamic law.

Hamdy suggests that the narrative of a clash of civilizations serves to tap into post-

colonial fervor about upholding traditional values in the face of a corrupted and

Western modernity. Hamdy argues that the underlying concerns that the Egyptian

populace and health care workforce have about a cadaveric procurement program

are about the protection of vulnerable people, the equitable distribution of organs,

and fair access to treatment. These types of concerns are not Islamic per se, since

they are concerns shared across societies and religious traditions. And as long as the

concerns over cadaveric organ procurement programs in Egypt remain misclassified

as stemming from the Islamic ethico-legal tradition, legitimate concerns about the

vulnerabilities of marginalized patients and social justice will remain unaddressed,

thereby impeding the establishment of a properly running organ transplantation

system in Egypt.

Professor Hamdy’s manuscript adds an additional wrinkle to the conceptualiza-

tion of religion as a primary source for bioethical theory. Some of her subjects

couched their rejection of brain-death criteria and of organ transplantation in

“Islamic” terminology. They suggest that brain death cannot be equated with legal

death in Islam because, for example, “the soul is still there” or it affronts the Islamic

views on the dignity of the body. Such concerns, while shared by other religious

communities, are said to be rooted in the Islamic tradition within the Egyptian

(Muslim) context. If the bioethics community adopts a more sociological

conceptualization of religion in its engagement with Islam and Muslims, then what

is the criterion by which to distinguish genuine Islamic concerns from concerns

mislabeled as Islamic? If human actors tell us what “is” for them an “Islamic”

concern, does it not, in reality, become a concern stemming from the tradition?

Labeling a problem as one stemming from religious valuation implies that solving

the problem requires engaging religious ideas and authorities.

Health interventions to promote organ donation among Muslims illustrate this

conundrum. Surveys from across the Muslim world note that Muslim populations

are generally less likely to donate their organs and often cite religious reasons as

underlying their disinclination [11–18]. Recognizing religious interpretations as

barrier beliefs, health care stakeholders have engaged religious authorities across

the world in a conversation over the Islamic views on organ donation and

transplantation. These initiatives have led to multiple fatāwā that declare organ

donation to be permissible according to Islam [19–21]. Yet, subsequent surveys

often find that Muslim attitudes toward organ donation remain largely unchanged

74 A. I. Padela

123 56

[22]. The failure to change Muslim attitudes concerning organ donation despite

multiple widely disseminated juridical rulings is puzzling. One explanation may be

that the people who cite religious concerns as a dissuading factor are mislabeling

their concerns as religious and thus the fatāwā are ineffective in changing their

opinions. Alternatively, even though the concerns may be religious in nature, fatāwāmay be the incorrect medium through which to change health behavior [23]. This

example highlights the challenge of labeling a social phenomenon as rooted in

religion. At times, human actors may outfit their beliefs in religious garb even when

those beliefs are unrelated to religion. Alternatively, while a social value may be

described as originating from a shared set of universal values, an individual’s

motivation to act in accordance with that value may stem from the belief that their

religion upholds that value.

Religious traditions do set cultural norms and are manifest in human behaviors.

In my view, however, looking at what “is” (social reality) will only generate an

incomplete picture of what religious traditions suggest “ought” to be. Islamic

bioethics projects will have to come up with yardsticks to measure the “Islamicity”

of values and ideas as gleaned from the voices and experiences of Muslims. How to

do that remains a challenging and controversial enterprise.

What is the relationship between Islamic bioethics and the state?

The place of religion in the public square is a highly important and hotly contested

topic. In a pluralistic and diverse society such as ours, the use of religious arguments

to promote public policies and law understandably makes individuals who do not

share the same religious views feel uneasy. Even religious adherents may be

troubled by the co-opting of religion to promote a specific policy or law, since the

idea of a “neutral” public square, where debate occurs in secular terms, seems

essential to a liberal democracy. Yet, public debates on a variety of bioethical issues

invariably have religious overtones. From the controversies surrounding stem cell

research and partial-birth abortion to public debates over health care reform, faith

communities offer religious rationales for advocating one policy over another, and

religious adherents note that being forced to repackage their religiously rooted

values into secular concepts leads to disingenuousness.

Brody and Macdonald revisit the concept of a neutral public square in the works

of John Rawls and Martha Nussbaum. They trace the development of Rawls’s

political philosophy and minimalist view of religious toleration. Rawls suggested

that public laws and policies should be argued for by appeal to values that are shared

by the citizenry and not to those of specific religious traditions, as they are unlikely

to be shared by all. According to the authors, Rawls insisted that while citizens may

benefit from learning about the religious rationale of their colleagues’ opinions, “the

citizen demonstrating ideal civic virtue would restate whatever he had previously

said in religious terms, in the language of the overlapping consensus.” But the

authors suggest that we need to move beyond mere tolerance so that the public

square may be enriched by citizens discussing their religious values in debates over

policies and law. They propose that “the best route to an appreciation of religion in


12357

the public square, in a way that enhances the practice of bioethics, is to apply … [a]

concept of social reciprocity” whereby individuals explain fully how their positions

are grounded in their belief structure and religious tradition. In conclusion, these

authors harken back to their suggested reconceptualization of religion as an

embodied social reality. They argue that the fear of allowing religious arguments in

the public square stems from seeing religion as a totalizing body of doctrine. If

religion is alternatively viewed as a social force negotiated in partial and varied

ways by individuals, then there may be no need to fear absolutist and irrational

argumentation by religious adherents in the public square. Instead, a diversity of

interpretations would allow for reasoned negotiation between individuals belonging

to different religious traditions.

Moving from political theory to legislation, Robert Vischer, a professor of law,

discusses the relationship of health care and religion in the legal system. He notes

that a particular religious community’s commitments may inform the writing of law

such that all citizens are bound to that commitment. As an example, he cites the

criminalization of assisted suicide in the United States as originating from Christian

teachings that, when enshrined into law, bind both Christians and non-Christians.

Obviously, other non-Christian moral traditions, including Islam, hold the same

view on assisted suicide, but this is not the case for every tradition or for every

bioethical issue. Over the past few decades, however, “the Supreme Court has taken

a skeptical stance toward laws that limit personal liberty based solely on the

assertion of a moral claim.” This changing landscape may reflect a nod to Rawlsian

ideas about the public square and evidences an inclination towards allowing the

citizenry to live out their lives without religious communities infringing on personal

liberty. At the same time, the legal system has been trying to create a space in which

religious health care providers have the liberty to integrate their faith commitments

with their own work. This debate centers on the liberty of conscience and how far

health care institutions need to accommodate the religious commitments of

individual providers over treatments that are proscribed by their faith. The most

common examples revolve around contraceptive services and abortion, where the

law must protect the right to conscience while at the same time insuring that the

health care needs of the population are met. For Vischer, some of these tensions may

be reduced by recapturing “the notion that the dictates of conscience are defined,

articulated, and lived out in relationship with others.” This relational view of

conscience recognizes that while “conscience might be expressed and defended by

the individual … its substance and real-world implications are relational by their

very nature.” Recognizing that one’s recourse to conscience-based arguments

affects the lives of others may lead to reasoned negotiation and compromise. Thus,

like Brody and Macdonald, he calls for a public square that allows recourse to

arguments based on religious commitments. By conveying one’s “perception of

reality’s normative implications,” an individual “makes truth claims that possess

authority over” his own conduct and that of individuals who share those same

commitments. Too often, he argues, conscience arguments are portrayed as personal

or institutional hang-ups that preclude compliance with a professional standard of

care. Yet, it is also possible that by allowing individuals to express their religious

commitments, a different standard of care arises that would enrich the profession

76 A. I. Padela

123 58

and benefit the populace. Professor Vischer argues that cultivating and maintaining

the conditions necessary for freedom of conscience should be the priority for our

society and its legal system.

Professor Vischer concludes his commentary by noting that for Muslim health

care workers, exercising their freedom of conscience at the institutional level

becomes more difficult because institutional efforts to accommodate Muslims are

often seen as “equivalent to legal enshrinement of those convictions.” This is

witnessed by anti-Sharīʿah legislative initiatives, which mistake the attempt of

Muslim communities to seek recourse to their religious norms for an attempt by

Muslims to have the American legal system adopt Islamic rules of conduct. Thus

when a Muslim couple asks for a dissolution of marriage based on Islamic tenets,

they are asking the court to honor a contractual provision already agreed upon by

the couple in the marriage contract. They are not asking the court to adopt Islamic

laws of divorce. This misperception fuels a distaste for accommodating Muslims’

values in personal and professional realms and challenges the Muslim health care

provider’s recourse to conscience clauses in the health care domain.

So what does this all mean for Islamic bioethics? Some of the implications are

hinted at in the article by Arozullah and Kholwadia. In it, they discuss the concept

of wilāyah as controlling the tenor of Muslim obligations within Islamic bioethical

theory. The authors state that “Muslims living in non-Muslim lands today are

required to follow the law of the land and there is no obligation on them to gain

political or legal wilāyah.” In the context of their discussion of wilāyah, sin is only

attributed to Muslims who disobey an Islamic ethico-legal injunction or disobey a

Muslim state authority’s laws (as long as the law does not contravene an Islamic

obligation). From their discussion, it seems that there may be space within Islamic

law for Muslims living under non-Muslim rule to claim liberty of conscience when

laws conflict with religious commitments. While Muslims should follow the law of

the land within a non-Muslim state, they do not automatically sin when not obeying

the laws of a non-Muslim state actor, where there is conflict between an Islamic

injunction and the secular law. Arozullah and Kholwadia also note that there is no

obligation to gain political or legal wilāyah for Muslims living in a minority status.

If this is the case, then Muslim communities living under non-Muslim rule need not

seek to enshrine their religious commitments into law. Muslims in a non-Muslim

state may instead incline toward, to use Professor Ramadan’s terminology, an

“adaptive” ethics rather than a “transformative” paradigm for society. This type of

Muslim response has implications for the public square. Brody and Macdonald and

Vischer call for religious communities to more fully explain their religion-infused

arguments for or against a public policy or law. They argue that public discourse is

enriched by understanding where Islam comes from, yet an adaptive ethico-legal

mindset may disincentivize the Muslim community from engaging in a dialogue that

lays bare their religious values and commitments.

Further, there is a long-standing tradition within the United States of seeking the

voice of religious communities in matters of health law and bioethics. For example,

the Presidential Commission for the Study of Bioethical Issues often seeks opinions

from religious authorities when advising the President on bioethical issues arising

from advances in biomedicine and related areas of science and technology. If


12359

Islamic bioethical theory suggests that Muslims are in no obligation to seek

influence over policies and laws that reflect their ethico-legal commitments in a

non-majority state, and if the public square remains hostile to Muslims voicing

religious views, then it stands to reason that Islamic bioethics may remain an insular

field. Fleshing out what Islamic bioethics requires of Muslims in a minority status,

and whether those obligations are different in a majority status when it comes to

health policies and state laws, is critically important.

Final remarks

This special issue of Theoretical Medicine and Bioethics represents a window into

Islamic bioethical discourse. While Islamic bioethics draws upon the depth and

breadth of the Islamic ethico-legal tradition, there are many important questions to

address about the sources it draws upon before one can expound a comprehensive

Islamic bioethical theory. When seeking to develop a robust and complete

framework for Islamic bioethics, one must also be cognizant of the methods of

moral reasoning the field employs, and the points at which it departs from modern

bioethics as well as from Western ethical and political theories. The papers in this

collection provide insight into how Islamic bioethicists and Muslim communities

are addressing some of these questions, and I hope this work will spur further

dialogue around these critical questions as Islamic bioethics coalesces into a true

field of scholarly and practical inquiry.

A glossary of relevant Islamic Ethico-legal terms used in this collection

al-Akhlāqiyāt Ethics as related to human behavior or conduct

Amīr A (Muslim) political authority

Ḍarūrah Dire necessity

Fiqh Jurisprudential understanding or an ethico-legal ruling

Fatwā (pl. fatāwā) A non-binding, context specific Islamic ethico-legal assessment or ruling issued by

a trained Islamic jurist

Ghayb Unseen realm

Ḥukm (pl. aḥkām) Ruling; judgment; decree

Ḥukm taklīfī One of the two types of judgments (ḥukm) that result from using uṣūl al-fiqhmethodology. This type of ḥukm locates an action along an ethical gradient from

obligatory to perform to obligatory to refrain from, each gradient having its own

afterlife ramifications

Ijmāʿ Consensus agreement; a formal source (uṣūl) of Islamic law

Ijtihād Juristic effort or methodology used to construct a fatwa

Ijtihād jamāʿī The process of group decision making based on uṣūl al-fiqh within a council of

Islamic jurisconsults

al-ʿIllah The intention of God when He revealed a Qu’ranic rule or inspired a Prophetic

tradition stating a rule. Iṭāʿah Obedience

Ittibāʿ Following the example of (an individual)

Madhhab (pl.

madhāhīb)The ‘schools’ of Islamic law which have tradition-based legal theories

78 A. I. Padela

123 60

Table a continued

al-Maqāṣid The objectives of Islamic Sharīʿah

Maṣlaḥah Public interests or benefit. A variably interpreted source of Islamic law

Muftī/faqīh Islamic ethicist; jurisconsult

Nafs Self, sometimes used interchangeably with rūḥ

Naṣṣ Textual sources of the Islamic ethico-legal tradition, such as the Qu’ran and the

Sunnah

Qāḍī A judge who is given legal authority by an Islamic government

Qaṭʿī A term used to denote univocal texts that lead to a definitive and singular judgment

Qiyās Precedent based analogy, a formal source (uṣūl) of Islamic law

Rūḥ Soul

Sharīʿah Islamic (moral) law

ʿUlamā’ Literally “the learned.” The term refers to scholars of the Islamic tradition trained in

Islamic seminaries. A near-equivalent term or synonym is Fuqahā’ (singularFaqīh), meaning, “scholars of fiqh,” which specifically refers to Islamic scholars

of law and ethics

ʿUrf Refers to the social practice and norms of a community—a disputed source of

Islamic ethics

Uṣūl al-fiqh Islamic legal theory or moral theology; the science identifies the sources of ethico-

legal knowledge and lays down the discursive rules for moral-ethical reasoning

Walī Guardian and protector; one who is responsible for someone else

Wilāyah Authority and governance

Yaqīn Absolute certainty

Ẓannī Refers to a judgment (or proof text interpretation) that is probability based

All transliterations of Arabic terms in this special issue have been standardized according to the

romanization tables produced by the Library of Congress [24]

Acknowledgments This special collection as well as the conference Where Religion, Bioethics, andPolicy Meet: An Interdisciplinary Conference on Islamic Bioethics and End-of-Life Care was supported bythe following University of Michigan programs, centers, and institutes: the Center for Ethics and PublicLife, the Center for Middle Eastern and North African Studies, the International Institute, the IslamicStudies Program, the Office of the Vice President for Research, the Program in Society and Medicine, andthe Division of General Internal Medicine in the Department of Medicine. Additional support and fundingwas provided by the Greenwall Foundation, Darul Qasim Institute, and the Institute for Social Policy andUnderstanding. Special acknowledgements go to Drs. Rod Hayward, Dan Sulmasy, and Farr Curlin forencouragement and advice and for helping me to traverse all the barriers and hoops on the path towardsthis issue. We acknowledge the timely reviews and critical comments of the cadre of peer-reviewers whohelped to enhance the quality of the papers. My deepest gratitude to Katie Gunter for being an exceptionalresearch assistant and project coordinator. Lastly, my thanks to Brigid Adviento and Daniel Kim for theirvaried assistance with this project.

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