A. HISTORICAL BACKGROUND
Ethics have been part of medicine from the beginning. Some statements in the Hippocratic oath deal with professional medical ethics. Ibn Sina wrote about ethics. Concern with ethics in the past was not as intensive as it is at the moment. It was assumed that physicians would be ethical and moral in their work and this was true to a large extent because religiosity was a leading characteristic of life in the past. Towards the last quarter of the 20th century ethical considerations became a major concern for two reasons. The first reason is that developments in medical technology gave rise to problems such as life-support, in-vitro fertilization and others that had moral dimensions. The second reason was the increase in moral violations by medical practitioners. The medical profession found itself in a dilemma because moral values were not part of the secular medical curriculum. Secularism gradually encroached civil life Starting in the 16th century renaissance. By the 20th century, all aspects of European life including medicine had become secularized. The practical manifestation of this secularization was the marginalization of religious and moral values and confining them to the private arena of individual’s belief. When medical problems that required moral solutions arose, the medical profession and society at large were not ready to face the challenges. The positive secular laws that existed were deficient in resolving moral problems. It became necessary to develop secular medical ethics as a new discipline to deal with the challenges. Muslims did not face a similar dilemma because they kept their divine Law, shari’at, intact. Islamic Law, unlike European secular law, is based on a complete system of morality and can therefore handle all moral problems that arise in medicine from a legal perspective. It also is very flexible being adaptable to many new and novel situations. Strictly speaking Muslims do not need to talk of ethics as a separate discipline because it is already included in their Law.
B. EUROPEAN ETHICS
Ethics is defined as various ways of understanding and examining the moral life. The approach to a moral problem in medicine is determined by the background culture, philosophy of life and worldview. There are three European approaches to ethical analysis: normative or practical, and non-normative ethics. The normative is what ought to be done. Applied ethics is what most people do. It seeks to find practical solutions to actual problems without necessarily theoretical considerations. Non-normative ethics tries to establish factually what the actual situation is. Non-normative ethics is a description of what is going on. It may also be related to language, concepts, methods, and meanings.
The European view of morality is very different from that of Islam. Europeans have a problem dealing consistently with moral issues after removing religion from public life over the past 4 centuries of secularism. Morality to them is communal consensus about what is right and what is wrong Beauchamp & Childress 1994). For example codes of professional conduct are a consensus reached within each profession. Government policies and guidelines also convey moral consensus reached within the political process. Court rulings and precedents also lay down moral values. Ethical guidelines can be developed while reasoning through ethical dilemmas (a situation in which there is good evidence for two opposing points of view). Ethical guidelines can also be developed while dealing with practical dilemmas for example when personal interest is in conflict with professional obligations or moral principles.
C. ISLAMIC ETHICS
Morality and ethics in Islam are absolute and are of divine origin. Human consensus not deriving from divine legislation cannot be a source of binding ethical guidelines. All what humans do it to apply the legal and moral teachings of Islam to practical situations.
European law and practice are very deficient when dealing with ethical issues. The law does not always and consistently follow morality. In Islam the law is the expression and practical manifestation of morality. European law does not have to permit all morally acceptable practices neither does it automatically ban all immoral activities. This contracts sharply with Islam that automatically bans all immoral actions as haram and automatically permits all what is moral or is not specifically defined as haram.
The issue of whether ethics are constant or not is irrelevant. The basic moral and legal principles are broad enough to encompass the needs of all times and places. The detailed applications change with the growth of science and technology. The Islamic approach to ethics is a mixture of the fixed absolute and the variable. There are fixed principles that set the parameters beyond which it is absolutely immoral to operate. Within these parameters, consensus can be reached on specific moral issues. The consensus may be in the form of a custom, ‘aadat, which in Islamic Law has legal force. Islam holds that ethics cannot be divorced from morality. Ethics can also not be divorced from Law. Islamic Law is a compendium of ethics, morality, and legal rules. The purposes of the law and its principles are therefore the basis of ethics. Islam holds that the human mind, unless corrupted by shaitan, is capable to working out rationally what is right and what is wrong for most problems of life. There are however a few gray areas for which moral reasoning needs to be guided by wahy to reach correct conclusions.
Islam considers medical ethics the same as ethics in other areas of life. There is no special code for physicians. What we call medical ethics is restating general ethical principles using medical terminology and with medical applications. The medical ethical codes can be derived from the basic law but the detailed applications require further intellectual effort, ijtihad, by physicians. Discussion of ethics brings into focus conflicts between rights and obligations. Rights may be positive or negative. Rights are correlated to obligations. Rights of one person may conflict with those of another one thus creating a moral dilemma. A human is free to enjoy his or her rights to the maximum as long as that enjoyment causes no harm to some one else, la yajuuz li sahib haqq al yasta’amila haqqahu fima yadhurru ghayrahu (KS860).
Strange as it may sound, some ethical problems are solved by avoiding them. This is part of the Islamic teaching of avoiding doubtful thinks and being modest or restrained. The prophet taught us to leave what causes us doubts to what does not cause such doubt, da’ ma yuribuuka ila ma la yuriibuka (KS201). Restraint, hayaa, is part of iman, al hayaa min al iman (KS206). Haya is the morality of Islam, khulq al Islam al hayaa (KS206). Hayaa is always good, al hayaa khayr kulluhu (KS206). Hayaa is a decoration, al hayaa ziinat (KS206).
There are two basic models of moral justification: deduction and induction. Deduction is a top-down approach popular among Hanafi jurists in which a general principle is applied to to specific cases. Induction is a bottom-up approach in which each case is considered on its own merits. Induction relies a lot on analogy, qiyaas, Inductive processes involving many cases can lead to a generalization that is considered an ethical theory.
D. ETHICAL THEORIES
EUROPEAN ETHICAL THEORY
There is no one coherent European theory of ethics because of the historical background. Judeo-Christian concepts were Europeanized when the Roman Empire opted for Christianity and the system of moral values developed in Europe became a convenient compromise between the pagan European Greco-roman religion on one hand and the judeo-christian religion on the other hand. The reformation and renaissance witnessed the marginalization of the Christian church and a partial return to Greco-roman ideas and practices. Materialism and empiricism developed with industrialization creating a complex mosaic of moral and philosophical concepts in Europe. In these circumstances it became difficult to define one coherent ethical theory.
An ethical theory provides a framework within which moral reasoning and judgment can be undertaken. Moral judgment is basically reaching a consensus about what is right or wrong. According to Beauchamp and Childress (1994) there are eight ethical theories. None of them can on its own explain all ethical or moral dilemmas. A good ethical theory must be clear, coherent, complete, comprehensive, simple, practicable, and able to explain and justify. None of these 8 theories has all these characteristics. In practice more than one theory may have to be combined to solve a specific ethical issue.
According to the utilitarian consequence-based theory, an act is judged as good or bad according to the balance of its good and bad consequences. Utilitarianism means attaining the greatest positive with the least negative. This theory has a problem in that it can permit acts that are clearly immoral on the basis of utility.
The obligation-based theory is based on Kantian philosophy. Immanuel Kant (1724-1804) argued that morality was based on pure reasoning. He rejected tradition, intuition, conscience, or emotions as sources of moral judgment. A morally valid reason justifies action. Acts are based on moral obligations. The problem with the Kantian theory is that it has no solution for conflicting obligations because it considers moral rules as absolute.
The rights-based theory is based on respect for human rights of property, life, liberty, and expression. The individual is considered to have a private area in which he is master of his own destiny. Rights may be absolute or relative. A positive right is one that has to be provided to the individual. A negative right is one that assures prevention of or protection from harm. There is a complex inter-relation between rights and obligations. Individual rights may conflict with communal rights. The problem of the rights-based theory is that emphasis on individual rights creates an adversarial atmosphere.
According to the community-based theory, ethical judgments are controlled by community values that include considerations of the common good, social goals, and tradition. This theory repudiates the rights-based theory that is based on individualism. The problem with this theory is that it is difficult to reach a consensus on what constitutes a community value in today’s complex and diverse society.
The relation-based theory gives emphasis to family relations and the special physician-patient relation. For example a moral judgment may be based on the consideration that nothing should be done to disrupt the normal functioning of the family unit. The problem of this theory is that it is difficult to deal with and analyze emotional and psychological factors that are involved in relationships.
The case-based theory is practical decision-making on each case as it arises. It does have fixed philosophical prior assumptions.
MAQASID AL SHARI’AT, THE ISLAMIC ETHICAL THEORY
The ethical theory of Islam is found in the 5 purposes of the Law, maqasid al shari’at. The five purposes are preservation of ddiin, life, progeny, intellect, and wealth. Any medical action must fulfill one of the above purposes if it is to be considered ethical.
E. ETHICAL PRINCIPLES
EUROPEAN ETHICAL PRINCIPLES
Europeans consider the Hippocratic oath as the starting point of ethical reasoning. This is supplemented by views of European philosophers and thinkers to develop ethical theories that are in turn used to solve practical problems. Ethical principles are axioms that simplify ethical reasoning. They have to be specific. In practice one principle may have to balanced against another one. In some cases one principle may override another. European ethical guidelines do not have explicit purposes such as are enunciated in the maqasid al shari’at. There are 4 basic European ethical principles according to Beachamp and Childress (1994) and these can be shown to correspond to some of the qawai’d al shari’at. The Principle of Autonomy is the power of the patient to decide on medical procedures. The Principle of Non-maleficence is avoiding causation of harm. The Principle of Beneficence is the providing benefits and balancing them against risks and costs. The principle of justice is distribution of benefits, costs, and risks fairly. Application of the above principles requires ethical rules. All these can be found within the rules of the shari’at. The European ethical rules may be substantive, authority, and procedural rules. The substantive rules deal with veracity, confidentiality, privacy, and fidelity. The authority rules deal with surrogacy, professional authority, and rationing.
ISLAMIC ETHICAL PRINCIPLES
The basic ethical principles of Islam relevant to medical practice are derived from the 5 Principles of the Law, qawai’d al shari’at. The 5 purposes are preservation of religion & morality, hifdh al ddiin; preservation of life, hifdh al nafs; preservation of progeny, hifdh al nasl; preservation of the intellect, hifdh al ‘aql; and preservation of wealth, hifdh al maal. The 5 principles of the Law are: intention, qasd; certainty, yaqeen; harm, dharar