Comparisons between medicine and jurisprudence, or between a physician and a jurist, are frequent in the classical Islamic sources, to the extent that it was said that “the prophets are doctors of hearts and religions,” and that “the Lawgiver is the greatest physician.”
The point of comparison here is that the physician seeks the interests of the bodies and investigates their health and innocence of diseases, while the jurist seeks the religious interests of man, and therefore there is no escaping the overlap between the two fields.
Especially since the human body is the instrument of all worship and duties, and that there is no separation between the body and the soul.
As for transmitted medicine, it means the hadiths of the Prophet that were mentioned in the chapter on medicine, which we find among the hadith blogs, such as Sahih Al-Bukhari and Muslim. Then, in the fourth century AH, it turned into a single color of modern writing under the title “Prophetic Medicine”, a medicine that contains hadiths revolving around treatment. Medicine, prevention, ruqyah, and the like.
And if there is a kind of historical clarity between the work of the physician and the jurist and the limits of each of them and what is included in them and what is not included, then the rulings of medicine and the rulings of jurisprudence are no longer that clear and differentiation in modern times, especially with the development of the field of medicine and the expansion of its effectiveness, which is something that has created problems for the The level of redefining the function of medicine and the limits of its field, and then the authority of the doctor in relation to the jurist on the one hand, and mobilizing jurisprudence to interact with the products of modern medicine and finding evaluations for them on the other hand.
This article deals with the effects that the development of medical science has had on jurisprudential thinking, and how this led to a departure from the traditional jurisprudential calamities (which are of a partial nature) to changes in the system of thinking, in major concepts, and then in scientific authority until the doctor became a mufti participating in some Sometimes, and how these developments led to the transgression of some of the classical religious rulings and positions.
The treatment of medical issues in the Islamic conception is due to two main areas.
What is called mobile medicine, and the science of jurisprudence.
As for transmitted medicine, it means the hadiths of the Prophet that were mentioned in the chapter on medicine, which we find among the hadith records such as Sahih al-Bukhari and Muslim. Then, in the fourth century AH, it turned into a single color of modern writing under the title “Prophetic Medicine”, a medicine that contains hadiths revolving around treatment. Medicine, prevention, ruqyah, and the like.
With the existence of these narrated hadiths, the scholars did not find it necessary to acknowledge that “most of medicine is due to experience,” as the hadith scholar Ibn Hajar (d. 852 AH), and some of them even decided that “the medicine transmitted in legalities is like this (i.e. experimental), and it is not from Revelation is in something, but it is something that was normal for the Arabs,” as Ibn Khaldun said (d. 808 AH). This does two things; The hadiths whose subject matter is medicine are very limited and do not rise to form what can be called “prophetic medicine”, and they are - however - outside the functions of prophecy and therefore their source is an empirical rationality.
As for the science of jurisprudence, it is hardly devoid of any chapter of its chapters of issues related to medicine, as many of the branches of jurisprudence revolve around legal concepts related to medicine today, such as the beginning of life, the end of life, signs of death, disease and illness, physical defects, lineage, provisions of treatment and medication, and others. that. However, since the science of jurists is based on arranging the branches of jurisprudence according to the chapters known in the books of jurisprudence (purity, prayer, funerals, …), we did not find a single chapter for medical issues; Because medicine is not one of the topics on which the work of the jurist and his legal terminology revolve, but medical issues come according to the folds of the chapters of jurisprudence according to the occasion.
The rule followed by jurists is that if the jurisprudential branch has an entrance in two of the chapters of jurisprudence, they mention its rulings in the nearest and first of the two chapters, according to the order followed within each sect. The book “The Rulings of the Patients” in which Ibn Taj al-Din al-Hanafi (d. 1060 AH) singled out the issues and branches of jurisprudence related to patients in order to facilitate their students, because of the fatigue and suspicion in their request from the books of jurisprudence, which is a late approach.
These jurisprudential rulings dealt - in their entirety - with aspects related to the subject of medicine (which is the human body) and not to its function (which is treatment), and here the overlap occurred between the two fields. The medicine and its source, all according to the viewpoint of the jurist and according to the legal view, not the medical view. These issues were - historically - outside the boundaries of the function of medicine, which was settled in the past on the saying that it is “preserving the health of man and repelling disease from him”, in contrast to the function of jurisprudence, which is to preserve the health of religion and take care of the rhythm of human actions in various conditions, health and disease, strength and weakness according to Murad street.
The field of the physician in classical times was of a technical or descriptive nature, as he defined the names and descriptions on which the legal rulings revolved (what kills and what does not kill from tools, the nature of disease, and the hardship that negatively affects the safety of health, ...). Hence, the physician had no input into constructing legal rulings and meanings, such as proving or denying lineage, for example. Because they are not biological issues, and that is why the branches of jurisprudence revolved around legal meanings (purity, felony, limits, lineage, permissible foods,...), and the reference remained to the doctor’s experience in determining biological names and descriptions to determine health and disease, while death and life and their signs, for example, are meanings. And legitimate names that were historically not referred to the doctor.
Rather, declaring someone insane for dropping a mandate was not a medical issue, as Michael W. Dols explained in his important study;
Judgment with madness was a social and cultural issue in Islamic civilization.
Hence, every jurist decides on the previous issues and others based on the rules of his doctrine and his inferences from the texts and medical knowledge available to him in what is not a text in it, then he arranges the legal rulings that are appropriate to them, and there was disagreement about some of the medicines that were mentioned in the hadiths of the Prophet, whether they were issued by him as a prophet Is it revealed to him (religious meanings) or based on experience and experience (ordinary things)?
But they were not quarreling over medicines and diseases for which there is no text;
Because they conceded that they are issues of the competence of medicine and based on experience.
In the eighth century AH, we found critical medical jurisprudence discussions from two sides:
The first: the comparison between the method of empirical science and the governance of revelation, as Ibn Qayyim al-Jawziyya (d. 751 AH) did, for example.
The second: the necessity for Muslims themselves to engage in medicine;
Knowledge, experience and religion, and not relying on the knowledge of other people of religions, as Ibn Al-Hajj Al-Maliki (d. 737 AH) did.
Ibn Qayyim al-Jawziyya critiqued the methodology of Hippocrates and those who followed him from among the doctors in identifying the stages of the development of the fetus, and distinguished between them and the methodology of jurisprudence based on revelation. And they are based in all of this on faculties and measurements, anatomy and an uncertain extrapolation, and their knowledge is not empirical that follows each specific case from the beginning of insemination to the end of pregnancy.
As for Ibn al-Hajj, he devoted several chapters of his book “Al-Madkhal” to talk about the intrigues of the infidel doctor, the medicine of the body and the incantation, the treatment of the Qur’an, some medicines, and the etiquette of the doctor. How should he behave “in his intention, in his worship, in his knowledge and in causing it” i.e. his livelihood, and based on this purpose, Ibn al-Hajj was concerned with criticizing the treatment of the unbeliever doctor and kahl for Muslims, which was common in his time; Because - in his opinion - neither advice nor good is expected from them, and their cheating may result in damage to souls, and because this helps them in their disbelief and glorifies their affairs, and because they do not believe in the harem of Muslims, and therefore he stressed that the Muslim must "take care of himself by relying on the The same knowledge, religion, and experience of things “to be achieved by sincerity in his outward senses of worship and obedience, and his innermost being with the correctness of belief and his devotion to God.If the intention is pure in it, it is one of the greatest acts of worship.”
But with the advent of modern times, and the tremendous developments that took place in the field of sciences, especially medicine, many catastrophes or incidents occurred that were not familiar to the previous jurists, and the contemporary jurists did not find a ruling stipulated in the books of the schools that they carry on it. Rather, we hardly find anything similar to it in The fatwas of the well-known calamities preceding modern times;
Because the calamities of modern times were the result of two great changes:
The first relates to the developments of the science of medicine itself, the expansion of its function and its limits.
The second relates to the contemporary jurist, his qualifications, and his role in the modern era.
Hence, some contemporaries, such as Sheikhs Yusuf al-Qaradawi and Wahba al-Zuhaili - may God have mercy on him - realized that change, so they talked about “two areas in which a huge change took place, upending what was familiar and decided before, and we are in dire need of ijtihad”, and these two areas are economics. and medicine.
In modern times, the nature of the science of medicine has changed, and then its limits have expanded in practice, function and scope. Medicine no longer revolves around “health and disease” in the old sense, but rather has shifted its topic to “improving the standard of life”, controlling and even controlling it, and reformulating it (genetic engineering) according to New conditions dictated by the conditions, standards and philosophy of modernity about man and life.
This has led to the rebuilding of new concepts of disease and health, and the subjection of the old jurisprudential and theological perceptions to criticism and rethinking as presented in genetics today, in order to fit with the changes taking place in the field of medicine.
Because the reality of medical practice and medical research includes many issues that are not related to the traditional concept of disease and health (such as marriage examination, plastic surgery, fetal sex control, various cases of abortion, health insurance, genetic intervention for ameliorative and non-curative purposes,…).
That is, the body (which is the subject of medicine) no longer calls for describing the “patient” in the old sense, and the expression “the subject of research” joined it to denote the people chosen to conduct medical research on them not because of their need for treatment, but because of the need for medical research for them, and medication or treatment is no longer limited to The level of the individual is within its narrow limits, as it was prevalent in classical times. Rather, it has expanded to include broader levels that are contemplated at the level of human existence and subsequent human generations and the improvement of their standard of life and physical characteristics.
It was not limited to the concepts of health and disease, but also to the change of major concepts such as man, life and death, whose applications can be realized through techniques of embryo selection (clearance), artificial insemination (laboratory fertilization), uterine rental (the transplanted uterus or embryo cutting), cloning, brain death, resuscitation and death The merciful and the treatment of man by man, such as organ donation, for example, and the questions it raises about the possibility of human fragmentation and the transfer of its parts to another human being.
On the basis of this change and expansion, the doctor has occupied a much broader role than he used to occupy in the past; The expansion of its subject and scope entailed a greater role and broader authority, which overlapped with the authority of the jurist, the fatwa, and others, especially since the new transformation takes place in the era of modernity, which is paradoxical to the times of the production of Islamic jurisprudence and its references. The authority of medicine was established in two directions; Horizontal and vertical, medicine has not only expanded its field, but its methods and tools have deepened, and it was based on accurate research that takes a long time and experiments as well, which led to impressive successes and effective results that not only enabled him to control diseases that were killing millions, but also enabled him to provide enormous potentials in controlling And engineering and development in the field of man as well. Doubting about medicine is no longer available, as it was in the time of Ibn al-Qayyim, for example, and this tremendous development took place in a non-Islamic context, which made Ibn al-Hajj’s proposal unrealistic today, in terms of relying on direct knowledge based on religion.
As for the second change that affected the calamities of modern times, it is the transformations that afflicted the contemporary jurist in terms of his qualifications and his role. The relationship between medicine and jurisprudence is no longer the same as it was in classical times. The contemporary physician has the authority to control/issue judgments, thanks to his effectiveness and influence on the human body and his worldly purposes formed on the impact of modernity, especially with the birth of a new scientific field called “Bioethics,” a field whose reference is outside the boundaries of jurisprudence and Islamic thinking in general. It goes beyond the limits of jurisprudence to morality based on non-religious references. Even the “universal” Islamic constitution and charter, one of which was issued by the Regional Office for the Eastern Mediterranean at the World Health Organization, and the other by the Islamic Organization for Medical Sciences, mimics the typical Western origin against which it is measured, and they emerged from al-fiqhi (with its five well-known rulings) to al-akhaliqi, for they are full of talk about “duties” and “obligations.”The prohibitions” are a mandate discourse related to the doctor’s actions towards the patient, the institution in which he works, the community, the profession, and colleagues. These duties and prohibitions go beyond jurisprudence and according to a different reference from the references of the jurist and the logic of his thinking, and they are duties that expand to establish the “ethical rules of biomedical research related to human aspects.” And all of this was originally within the limits of the jurisprudent’s authority, as long as it deals with human behavior and the actions of those responsible, even “the Islamic vision of some jurisprudential developments” (the calamities) that seem to be close to the jurist and from his direct competence, were not left to him, but the doctor shared it with him, as We find in issues in which the jurisprudential heritage throughout history has been based on the sayings of jurists such as the duration of pregnancy (maximum and minimum), human death, menstruation and postpartum and their duration (maximum and minimum) and so on.These duties and prohibitions go beyond the terminology of jurisprudence and according to a different reference from the references of the jurist and the logic of his thinking, and they are duties that expand to establish the “ethical rules of biomedical research related to human aspects,” and all of this was within the limits of the jurist’s authority in the original; As long as it deals with human behavior and the actions of those responsible, or even the “Islamic vision of some jurisprudential developments” (the calamities), which seem to be closely related to the jurist and from his direct competence, it was not left to him, but rather shared by the doctor, as we find in issues in which the jurisprudential heritage throughout history has been based on the sayings of the jurists as long Pregnancy (maximum and minimum), human death, menstruation and postpartum pregnancy and their duration (maximum and minimum) and so on.These duties and prohibitions go beyond the terminology of jurisprudence and according to a different reference from the references of the jurist and the logic of his thinking, and they are duties that expand to establish the “ethical rules of biomedical research related to human aspects,” and all of this was within the limits of the jurist’s authority in the original; As long as it deals with human behavior and the actions of those responsible, or even the “Islamic vision of some jurisprudential developments” (the calamities), which seem to be closely related to the jurist and from his direct competence, it was not left to him, but rather shared by the doctor, as we find in issues in which the jurisprudential heritage throughout history has been based on the sayings of the jurists as long Pregnancy (maximum and minimum), human death, menstruation and postpartum pregnancy and their duration (maximum and minimum) and so on.And all of this was originally within the limits of the authority of the jurist. As long as it deals with human behavior and the actions of those responsible, or even the “Islamic vision of some jurisprudential developments” (the calamities), which seem to be closely related to the jurist and from his direct competence, it was not left to him, but rather shared by the doctor, as we find in issues in which the jurisprudential heritage throughout history has been based on the sayings of the jurists as long Pregnancy (maximum and minimum), human death, menstruation and postpartum pregnancy and their duration (maximum and minimum) and so on.And all of this was originally within the limits of the authority of the jurist. As long as it deals with human behavior and the actions of those responsible, or even the “Islamic vision of some jurisprudential developments” (the calamities), which seem to be closely related to the jurist and from his direct competence, it was not left to him, but rather shared by the doctor, as we find in issues in which the jurisprudential heritage throughout history has been based on the sayings of the jurists as long Pregnancy (maximum and minimum), human death, menstruation and postpartum pregnancy and their duration (maximum and minimum) and so on.
These transformations outside the Islamic system and its references sometimes led to the mufti’s apprehension about these modern techniques and knowledge and the physician’s growing authority on the one hand, and to the tendency of some muftis to be strict and prohibition from multiple approaches (including the purposes of Sharia, interests and corruptions, blocking pretexts and others), and perhaps some The jurists realized the magnitude of the changes and therefore talked about “problems” and the search for “solutions,” meaning that he did not use the familiar jurisprudential expression (the calamities), which seems to be a neutral expression.
These transformations have prompted some contemporary muftis to search in 3 levels:
The first: its impact on human life and perceptions.
The second: its impact on the system of jurisprudence and its rules regulating the provisions of human behavior (actions of those responsible), including the disposal of his body.
And the third: the legitimacy of using the methods and techniques of this scientific progress in the field of medicine.
These levels reflect a revolution in the classical jurisprudential thinking, as the whole matter revolves around the patient, who was revolving in the traditional jurisprudential perception according to 4 cases mentioned by Ibn Al-Hajj, which are:
1. Relying on God and delegating to Him in the matter of his illness.
2. Compliance with the Sunnah in “using legal medicines” that was stipulated by the Prophet, peace and blessings be upon him, with the strength of belief and certainty;
"As far as the intention is, the pursuit will succeed."
3. Refer to the description of the knowledgeable doctors of the Muslims for those whose certainty is not strong, “which is predominant in our conditions.”
4. Uplifting the book of God Almighty and the prophetic remembrances contained.
These are conditions that revolve around the description of religion and disease according to the old conception, and that treatment with medicine is in a state of weak certainty in God and reliance on Him; Which means that medication does not fall within the scope of religious duties or necessary purposes, and therefore jurists - through the centuries - used to discuss the ruling on medication, and their doctrines revolved between permissible and desirable. Judge Iyad conveyed the consensus that medication is not required, but the majority of Hanbalis went to the fact that leaving medication is better. Al-Nawawi said, “If one leaves the medication as one’s trust, it is a virtue.” And medication is better for the one whose recovery is of general benefit to the Muslims.
This position on medication in the jurisprudential heritage entails the position of medicine and the doctor and the need for him and his role in society with the presence of a real disease, and it is based on the religious idea of trusting God, which was mentioned in the text, and on the idea of patience for affliction and its religious reward and expiation for sins, and in the words of the Shafi’is who They quoted Iyad al-Maliki’s saying that refers to another meaning outside that circle, which is a meaning related to medicine itself, which is the lack of definiteness of the benefit of treatment, while they made it obligatory to eat dead meat for a person who is in need and drink a morsel of wine. Certainly, the benefit of that in keeping him alive, and this means - in theory - that if the degree of knowledge of the feasibility of treatment changes, the ruling will change.
But if we look today at the expansion of the concept of the patient to include those who are not really sick and the person under medical research, and the expansion of the need for medicine and its benefits that go beyond mere medication;
It is not clear to us the extent of the great change that has occurred in medicine in modern times, and from here the International Islamic Fiqh Academy resorted to departing from the doctrinal doctrinal tradition and re-examining “medical treatment”, for example, and issuing new and foreign rulings on the sources of old jurisprudence, relying on the purpose of self-preservation on the one hand. On the other hand, different situations and persons.