LAW AND ETHICS IN ISLAMIC BIOETHICS: NONMALEFICENCE IN ISLAMIC PATERNITY REGULATIONS

In Islamic law paternity is treated as a consequence of a licit sexual relationship. Since DNA testing makes a clear distinction between legal and biological paternity possible, it challenges the continued correlation between paternity and marriage. This article explores the foundations of paternity regulations in the Islamic ethico‐legal tradition, with a particular focus on what is termed here “the licit sex principle,” and investigates the extent to which a harm‐based argument can be made either by appeal to or against Islamic paternity regulations. It argues that in Islamic bioethics the definition of harm and its boundaries is a function of both: (1) identification of legal and religious rights and the extent to which these rights are violated; and (2) balancing and reconciling perceived harm against both specific principles in relation to a given issue and also the overarching objectives of Islamic law. The article is divided into three main sections addressing the Islamic legal, ethical, and bioethical dimensions of paternity.     

COLLECTIVE RELIGIO‐SCIENTIFIC DISCUSSIONS ON ISLAM AND HIV/AIDS: I. BIOMEDICAL SCIENTISTS

During the 1990s, biomedical scientists and Muslim religious scholars collaborated to construe Islamic responses for the ethical questions raised by the AIDS pandemic. This is the first of a two‐part study examining this collective legal reasoning (ijtihād jamā‘ī). The main thesis is that the role of the biomedical scientists is not limited to presenting scientific information. They engaged in the human rights discourse pertinent to people living with HIV/AIDS, gave an account of the preventive strategy adopted by the World Health Organization, and offered an (Islamic) virtue‐based preventive model. Finally, these scientists tried to draft a number of Islamic legal rulings (a?kām), usually seen in Islamic jurisprudence as the exclusive business of Muslim religious scholars. This multilayered role played by the scientists reflects intriguing developments in the Islamic religio‐ethical discourse in general and in the field of Islamic jurisprudence in particular.     

Conversion to Islam in relation to divorce in Malaysian family law

Malaysia is a multi-religious country that recognizes two types of family law based upon the Law Reform Marriage and Divorce Act 1976 and the Islamic Family Law. The former administers the marriage matters of non-Muslims, and the latter deals with Muslim family affairs. This paper aims to elucidate the matter of the conversion of a non-Muslim spouse to Islam in connection with an application to dissolve a marriage in Malaysia. When both the husband and wife have solemnized and registered their marriage under the Law Reform Marriage and Divorce Act but one of the parties subsequently converts to Islam, Section 51 of the Law Reform Marriage and Divorce Act contains a provision for the dissolution of the marriage. On the other hand, the Islamic Family Law also has certain provisions to be applied in the case of conversion. As a consequence of the conversion, neither party to the marriage continues to be bound by the same family law provision. Thus there arise several issues to be identified and clarified, such as who has the right to file the divorce petition, which court has the jurisdiction to adjudicate the petition, and whether there is any conflict of interest between the parties in the process of dissolving their marriage. This paper attempts to highlight and discuss the issue of conversion, by making a comparative study between the provisions in the Law Reform Marriage and Divorce Act and the Islamic Family Law.     

Reconstructing Hymens or Constructing Sexual Inequality? Service Provision to Islamic Young Women Coping with the Demand to be a Virgin

In Islamic culture, there is an imperative demand that women should be virgins on their wedding night. Service providers in The Netherlands are increasingly confronted by Islamic young women who find themselves in serious difficulties because they are no longer virgins, and are about to enter a forced or arranged marriage. These young women report a diversity of problems such as loneliness, social isolation, depression, despair, suicidal feelings, identity problems and serious conflicts with parents. In this article we focus attention on the circumstances that can result in these types of difficulties, and also critically consider the kinds of help that young Islamic women are given. Attention is paid to the question of whether existing forms of service provision, especially surgical reconstruction of the hymen, take sexual and other inequalities into account.     

HUMAN CLONING THROUGH THE EYES OF MUSLIM SCHOLARS: THE NEW PHENOMENON OF THE ISLAMIC INTERNATIONAL RELIGIOSCIENTIFIC INSTITUTIONS

In the wake of the February 1997 announcement that Dolly the sheep had been cloned, Muslim religious scholars together with Muslim scientists held two conferences to discuss cloning from an Islamic perspective. They were organized by two influential Islamic international religioscientific institutions: the Islamic Organization of Medical Sciences (IOMS) and the International Islamic Fiqh Academy (IIFA). Both institutions comprise a large number of prominent religious scholars and well-known scientists who participated in the discussions at the conferences. This article gives a comprehensive analysis of these conferences, the relation between science and religion as reflected in the discussions there, and the further influence of these discussions on Muslims living in the West. Modern discussions on Islamic bioethics show that formulating an Islamic perspective on these issues is not the exclusive prerogative of religious scholars. Formulating such perspectives has become a collective process in which scientists play an essential role. Such a collective approach strengthens the religious authority of Muslim scholars and makes it more influential rather than undermining it.     

Islamic law and human rights: A contribution to an ongoing debate

In this essay the author criticizes two opposite approaches to the relationship between Islam and human rights: the incriminating and the apologetic approach. They are either anachronistic in that they judge the rules of classical Islamic jurisprudence by present‐day standards, or they entirely ignore its heritage. The author attempts instead to develop a new approach whereby classical Islamic jurisprudence is analyzed in its historical context. In order to examine whether Islam recognized a notion of fundamental rights, the author first tries to establish to what extent the notion of legal equality is recognized in Islamic law. Secondly, he examines two hierarchical legal relationships, viz. that between master and slave and that between husband and wife, in order to find which basic and inalienable rights Islamic law assigns to the weaker party in these relationships. His conclusion is that classical Islamic law offers points of departure for the development of a modern theory of human rights rooted in Islamic notions.>     

NOTE ON THE VALIDITY OF THE POWER LAW

On the basis of previous experimental findings, it is argued that the power law is not based on a true (subjective) ratio scale, but on a quasi-ratio scale. Hence, and in spite of the results of the cross-modality matching, the validity of the power law, as well as the validity of models and equations in which a subjective scale is involved, is doubted. It is further indicated that the validity of Brown's law can, under special conditions, be tested by the relation between subjective variables of velocity, length and time. Finally, the relation between the power law and Luce's theorem is discussed briefly.     

Islam and Gender in the Thought of a Critical-Progressive Muslim Scholar-Activist: Ziba Mir-Hosseini

This article highlights the scholarly contribution of the Iranian-born Muslim scholar-activist Ziba Mir-Hosseini to the academic field of gender and Islam. In the first part, Mir-Hosseini's thought is positioned within the larger processes of the shifting loci of authority and normativity in contemporary Islamic discourses, particularly with reference to the emergence of what will here be termed critical-progressive Muslim scholar-activists. There follows a brief justification as to why a study of Mir-Hosseini's thought in relation to gender and Islam warrants examination. Mir-Hosseini's personal journey in the field of gender and Islam is then outlined and her major contributions to the field are noted. This is followed by a discussion of the support Mir-Hosseini finds for her ideas in the hermeneutical theories employed by reformist male Muslim scholars, and then an examination of her views on the relationship between Islamic feminism discourses and (neo-)traditional expressions of Islam. Mir-Hosseini's deconstruction of the assumptions governing classical Muslim family law and ethics that have been re-appropriated and legally enforced by some contemporary Muslim majority nation states is presented next, followed by a discussion of her proposals for the reform of Muslim family law and ethics. The final section discusses Mir Hosseini's activism with special reference to her involvement with Musawah, the global movement for equality in Muslim family law based in Kuala Lumpur, Malaysia.     

One Question,Two Answers: Rabbinic Responsa as Legal Advocacy in the Medieval Islamic World

Jewish law has long faced the problem of individual litigants seeking multiple answers to a single halakhic question in order to select what they found to be the most favorable ruling. In this article, I examine the role that forum shopping for legal opinions played in the Jewish community of the medieval Islamic world. Individuals often made recourse to multiple juristic authorities, whether those authorities were leaders serving the geonic academies of Babylonia and the land of Israel or local jurists. I discuss some of the strategies the geonim and local jurists used to reduce competition between judicial rulings and how local judges utilized the various responsa composed on their behalf by these authorities or presented to them by litigants to bolster their case before the Jewish court. In so doing, I aim to refine our understanding of the social and legal role of rabbinic responsa in the medieval Islamic world by suggesting that this literature served as expert testimony to support one side or the other in a particular case rather than as the definitive record of the court’s ruling in that case.     

ISLAM AND ENVIRONMENTAL ETHICS: TRADITION RESPONDS TO CONTEMPORARY CHALLENGES

Abstract. Mounting globed environmental challenges beg for cross-cultural discussions that highlight underlying cultural values regarding nature. This paper explores the insights of Islamic scholars as they examine the interaction of Islamic culture and the West. The Western worldview that separates religion and science, value and fact, in particular differs from Islamic tradition, which sees all facets of life and affairs as interconnected by virtue of their common source—the Creator. As traditional Islamic values have been abandoned to adopt modern Western technologies, environmental problems have intensified in the Muslim world. Islamic scholars urge a return to Islamic ideals that reflect a sacramental view of the physical universe, and they champion the revival of an Islamic science that synthesizes empirical study and symbolic cognition.     

ISLAM AND SCIENCE: CONTRADICTION OR CONCORDANCE

Abstract. Many question whether Islam and science can be compatible. In the first six hundred years of Islam, Muslims addressed all fields of knowledge available to them with unprecedented zeal and contributed immensely to the knowledge that became the precursor of the Renaissance in Europe. The Tatar invasion in the thirteenth century and the total destruction of Baghdad, the Muslim capital of knowledge and science, followed by the crusades, the ensuing hostility between East and West, and Western colonialism of Muslim countries led to a distrust of all knowledge emanating from the West. Such distrust closed the doors to ijtihad, a dynamic method in Islamic jurisprudence for addressing change, new demands, and new acquired knowledge, even though the Qur'an challenges Muslims to think, contemplate, understand, comprehend, and examine everything around them—tasks that bring humankind closer to God as they find methods to apply God's laws of justice and equity to the benefit of all humankind. Islam is the religion of yusr (ease) and not ‘usr (hardship). The creation of the world was for human benefit and use. Innovation for such beneficial use and application is a must.     

Pakistan Federal Shariat Court's Collective Ijtihād on Gender Equality,Women's Rights and the Right to Family Life

This article argues on the basis of recent case law that the judges of the Pakistan Federal Shariat Court (FSC) have asserted their right to ijtihād and have indeed engaged in collective ijtihād. While in some areas, such as freedom of religion, Islamic law has been interpreted rigidly in a non-human-rights-friendly fashion in Pakistan, in some other areas, the flexibility and pluralism of Islamic law has been used to improve gender equality, women's rights and the right to family life. By using its constitutional powers, with its collective ijtihād, the FSC has been tackling the traditionally illiberal interpretation and application of Muslim laws in these areas. Regardless of the methodology and process of this ijtihādic endeavor, the output shows that the FSC has been either modifying the traditional ijtihāds or coming up with totally new ijtihāds to answer contemporary questions faced by Islamic law. The findings of the article once again challenge the views of scholars such as Schacht, Coulson and Chehata, who have argued that, by the fourth/tenth century, the essentials of Islamic legal doctrine were already fully formulated and that the doctrine remained fixed.     

MEDICAL MANAGEMENT OF INFANT INTERSEX: THE JURIDICO‐ETHICAL DILEMMA OF CONTEMPORARY ISLAMIC LEGAL RESPONSE

Technological advances in the field of medicine and health sciences not only manipulate the normal human body and sex but also provide for surgical and hormonal management of hermaphroditism (intersexuality). Consequently, sex assignment surgery has not only become a standard care for babies born with genital abnormalities in the West but even in some Muslim states. On the positive side, it goes a long way in saving children born with abnormal genitalia from numerous legal interdictions of the pre‐sex corrective surgery. Nevertheless, the larger ethical and legal questions that medical management of genital abnormality raises to some extent have not been adequately appreciated by contemporary Muslim responses. This article, therefore, in principle argues against surgical management of intersexuality during early infancy from the Islamic legal perspective.     

Representations of Sharia in Three Global Cities: Sydney,New York and Geneva 2008–2013

Drawing on methodologies used to analyse the negative portrayals of new religious movements in the press, this article analyses the way Sharia has been reported in key newspapers in Sydney, New York and Geneva from 2008 to 2013. It differentiates between perceptions of Islamic law as practised in these global cities, as well as in other countries, and examines the different levels of perception. The article also investigates portrayals and perceptions of ‘good’ Sharia (as in Islamic banking) as opposed to ‘bad’ Sharia (as in family and criminal law). It discovers that Sydney’s newspapers are more sympathetic than those in New York and Geneva towards Sharia-compliant finances. It then argues that the move towards a more Muslim consumer market in the media is not a homogenous process among Western global cities.     

“Benevolent Patriarchy”: Palestinian Women between “Ideal” and “Reality”

In this article polygyny is used to illustrate how the ideal of benevolent patriarchy and the “good” Muslim man as the benevolent patriarch tends to create a discrepancy between the legal and the moral in Islamic legislation as well as in Islamic discourse. The study is based on fieldwork in the West Bank in 2011 when 49 Islamist and Islamic-oriented women were interviewed. The main finding of this study is that Islamist women tend to accept the Islamic gender system as the divine will, and they also accept its legal expression, Personal Status Law. However, there is a little awareness of the lack of legal consequences for men who do not behave according to the moral code, which is not explicitly but only implicitly assumed in the law.     

伊斯兰复兴思潮下的伊斯兰经济思想

20世纪上半叶,伊斯兰教复兴思潮迭起,穆斯林比以往更加明确,伊斯兰教依然是他们解决精神、政治、经济问题的行之有效的途径。20世纪中后期,伊斯兰复兴的浪潮在经济思想领域产生了两方面影响:其一,带动了伊斯兰经济思想的研究。其二,促成了伊斯兰金融体系的建立。     

IS THE DEVIL IN THE DETAILS? Tension Between Minimalism and Comprehensiveness in the Shariah

The comprehensiveness of Islamic law has been questioned seriously in the modern period by Muslim reformists like Rashīd Ri?ā. Such reformists have used as evidence Qur'anic verses and Prophetic reports that seem to state clearly that the strictures of Islamic law are few and limited and that Muslims should not extend them to all areas of life. How could the Shariah have developed as a holistic and exhaustive body of law in light of such evidence? Looking back at earlier Muslim scholars from the ninth to the eighteenth centuries, however, we see that these Qur'anic verses and Prophetic edicts were never understood in this way. They were either diffused with various hermeneutic strategies or understood as applying to debates unrelated to the comprehensiveness or minimalism of the Shariah.     

The degree of certainty in brain death: probability in clinical and Islamic legal discourse

The University of Michigan conference “Where Religion, Policy, and Bioethics Meet: An Interdisciplinary Conference on Islamic Bioethics and End-of-Life Care” in April 2011 addressed the issue of brain death as the prototype for a discourse that would reflect the emergence of Islamic bioethics as a formal field of study. In considering the issue of brain death, various Muslim legal experts have raised concerns over the lack of certainty in the scientific criteria as applied to the definition and diagnosis of brain death by the medical community. In contrast, the medical community at large has not required absolute certainty in its process, but has sought to eliminate doubt through cumulative diagnostic modalities and supportive scientific evidence. This has recently become a principal model, with increased interest in data analysis and evidence-based medicine with the intent to analyze and ultimately improve outcomes. Islamic law has also long employed a systematic methodology with the goal of eliminating doubt from rulings regarding the question of certainty. While ample criticism of the scientific criteria of brain death (Harvard criteria) by traditional legal sources now exists, an analysis of the legal process in assessing brain death, geared toward informing the clinician’s perspective on the issue, is lacking. In this article, we explore the role of certainty in the diagnostic modalities used to establish diagnoses of brain death in current medical practice. We further examine the Islamic jurisprudential approach vis-à-vis the concept of certainty (yaqīn). Finally, we contrast the two at times divergent philosophies and consider what each perspective may contribute to the global discourse on brain death, understanding that the interdependence that exists between the theological, juridical, ethical, and medical/scientific fields necessitates an open discussion and active collaboration between all parties. We hope that this article serves to continue the discourse that was successfully begun by this initial interdisciplinary endeavor at the University of Michigan.     

THE BEGINNING OF HUMAN LIFE: ISLAMIC BIOETHICAL PERSPECTIVES

Abstract. In January 1985, about 80 Muslim religious scholars and biomedical scientists gathered in a symposium held in Kuwait to discuss the broad question “When does human life begin?” This article argues that this symposium is one of the milestones in the field of contemporary Islamic bioethics and independent legal reasoning (Ijtihād). The proceedings of the symposium, however, escaped the attention of academic researchers. This article is meant to fill in this research lacuna by analyzing the proceedings of this symposium, the relevant subsequent developments, and finally the interplay of Islam and the West as a significant dimension in these discussions.