Between Islamic and Secular Law

Front matter

sui generis

,AMIC AND N

Between Islamic and Secular Law Regulating Organ Transplantation in the Middle East and North Africa

Contents

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IX

Table of Contents

Contents. (us Asc oett A A been gere nda VII Table of Contents... 5 ox e or eR eb atte IX Bibliography «eor pel et o We e XV GloSSaEy «inet en rs tet te eta t rate tiat XXXV Y A en teste td 1 Introduction... oo tee tete e n AND EDI 1 L- Background... ooa ete rb uec iile Bd 1 Pare, nete doe f e ot ttd 7 Islamic. L3W« 2st ons Ea pap tM XC uo depu po MC Ht ue uar d 7 L- Introdüctiom: eR roe tenete ee tpe ene ea 7 2. Schism Between Sunni and Shia 0.0.0.0... 9 3. Schools FLAW xoa te eee 9

4. Usul al-fiqh or Dogma ofthe Legal Sources and Methods of Legal Deduction cinco 10 ü- :QUEIOlWus tb a e ER e ba! hte A 12 b Sunnaofthe Prophet ooo 12 Ct DO se O O debo ote era setas 14 d. Oasis E A ee eb i beds 14 A et eee Road 14 a Istihsàn, DaruüraandlIstislàh ooo 16 d. SaddübEdüarat..-. s. s tts 18

III. Islamic Law Before European Encounter ccoo 18

Part I

Introduction I. Background

For centuries, territories with Muslim rulers were governed according to law derived from Islamic sources by legal scholars usingthe methods of Islamic legaljurisprudence. Law was enacted and enforced by either a judge or a state official. Thislegal system changed fundamentally after the 18th century with the growing influence of Europe. States governed by Muslim rulers were confronted with European culture, including European legal systems, laws, and codes, mainly through colonialization. In most legal fields, such as criminal, commercial, and administrative law, the existing laws and rules derived from Islamiclaw were abolished and replaced with European or European-inspired statutes and codes. Laws in the field of personal status law, family law, and succession lawthat were not abolished are still considered to be derived from classical Islamic law, which developed between the 5th and 11th centuries. When describing the legal systems and laws of today's Muslim-majority statesinthe Middle Eastern and North African (MENA) region, scholarship on Islamic law has identified two categories of laws: one derived from Islamic law, which includes contemporary personal status laws, and the other derived from non-Islamic law of primarily European origin, referring to all other legal fields. Followingthis widely received and reproduced notion, biomedical laws suchas organ transplantation laws would be placedin the latter category with noconnection to Islamiclaw. The literature finds that the laws on organ transplantation in Muslim-majority states generally follow internationally set legal standards because of structural, technological dependence on the West. This dependence has drawn in the values and mentalities conveyed through biomedicaltechnology, resultingin the homologation and assimilation of health principles, regulations, and codes.1 This observation corresponds with the systematics of modern law in the Islamic world: everything that has not been regulated by classical Islamic law, including all areas that are novel and therefore lack exact precedents, such as organ and tissue transplantation, can and

1 See Dariusch Atighetchi, Islamic Bioethics: Problems and Perspectives (Dordrecht: Springer, 2009), 23.

2 PartI areregulated by the legislative authority in place. The states legislate according to their procedures and based on their fundamental legal sources.

Biomedical laws are genuinely a novel field oflaw, made necessary by unprecedented developments and advances in the sciences and technology in the 20th century. This cross-sectional field combines various legal branches of private and public law while influencing and being influenced by political, ethical, and religious debates and discourses on the relation between human life and technology. Biomedicine is a field of research and clinical practice concerning all life processes with the aim of preserving life, treating illnesses and diseases, and alleviating suffering. As muchas these technologies have enhanced humanlife, they have also raised serious ethical questions. Should something that is technically feasible also be implemented in reality? Where do the boundaries lie when using technology to manipulate human bodies and lives?

To provide authoritative guidelines on addressing these questions, states worldwide have begun to legislate this field. Muslim-majority states are no exception to this trend. Biomedical research and practice have spread all over the world since the modern medical paradigm achieved global predominance. This work’s focus is on organ transplantation. The scientific and technical advances that laid the ground for successful organ transplantations began in the early 1900s. The history of transplantation medicine is young, and the developments leading to the establishment of organ and tissue transplantation as a standard form of treatment have been rapid and outstanding. Many attempts were made to transplant solid organs before the first successful transplant was performed in 1954 inthe USA with a kidney donation between twin brothers. In the 1960s, the first liver, lung, and heart transplants were performed with organs from deceased donors. Several breakthroughs in vital areas, such as the development of immunosuppressants, techniques of vascular anastomosis, effective preservation of donated organs, and temporary maintenance of recipients with dialysis and cardiopulmonary bypass, were critical for advancing this form of treatment beyond experimental status. The legal acceptance of the concept ofbrain death in many countries and changes in social attitudes should not be underestimated in this success story.

With these rapid medical advances, ever more patients needing transplants are also available for treatment. It is often observed that organ transplantation has become a victim ofits own success: The number of donor organs available for transplants has not kept pace with the number of organs needed, leading to a worldwide shortage of organs. The WHO estimates that less than 10% of the global demand can be met.? This concern has been an essential

2 WHO, “WHO Task Force on Donation and Transplantation of Human Organs and Tissues,".

Introduction 3 driver for states to regulate the handling of organs. Donation, procurement, andtransplantation of human organs involve various ethical issues. Who owns thebody, and does a person haveunlimited rights over the disposition oftheir body? When is a human being considered dead? Can one derive monetary gain from selling part of one's body? Assuming that a person has the authority to dispose oftheir body and therefore donate their organs, various subsequent questions arise, such asin which form consent mustbe given, whether consent can be assumed, and what the role of family and relatives is. Additionally, the crucial question oforgan allocation must be addressed, such asthe criteria for ensuring just allocation.3

Beauchamp and Childress have provided a way of approaching these ethicalissues by introducing four bioethical principles, which have proven to be hugely influential within the medical profession and in the development of medical laws.4 The four principles are those of autonomy, non-maleficence, beneficence, and justice. These principles are considered by many as the standard theoretical framework from which to approach a bioethical issue and to reach a solution suitable for the specific case.

Simultaneously, legal discourse in Muslim-majority states on biomedical issues is conducted against the background of Islam. The Islamic legal tradition based on the Quran, perceived as the literal Word of God, is the sharia, the divine law, and the most critical legal interpretations developed over centuries in classical jurisprudence play an essential role in bioethical discourse. Believers needingarule of conduct frequently ask scholars or experts of Islamic law to issue a juridical opinion, called a fatwa, to explain the prescriptionsin the sources that indicate how to handle a specific conundrum. These fatwas are produced by private legal and state-appointed scholars andare technically nonbinding. Nonetheless, the influence ofthese opinions on legislation must beconsidered because they have a broad reach in various societies and even enjoy popularity, especially with the rise of mass media.5

Muslim believers have turned to religious scholars to understand the shariaonorgan andtissue transplantation. The questions that these scholars deal with on organ transplantation and donation are whether an organ should be removed froma living or dead person, whether a body part from the dead

3 See Andrea Büchler, “Regulating the Sacred: Organ Donation and Transplantation: Autonomy and Integrity ofthe Person or Social Responsibility ofthe Body?,” Straus Institute Working Paper 1 (2012).

4 Tom Beauchamp and James F. Childress, Principles of Biomedical Ethics, 8th ed. (Oxford: Oxford University Press, 2019).

5 Morgan Clarke, Islam and New Kinship: Reproductive Technology and the Shariah in Lebanon (New York: Berghahn, 2009), 67.

4 PartI defilesthe body ofthe living, and at what moment death occurs. Working from the general ethical concepts of Islam, most religious scholars have decided thatIslamiclaw permits organ transplantation. The religious-legal opinions range from positions that declare all forms of donation to be prohibited by the religious-legal tenet that the human body belongs to God to positions that claim allforms of donation to be permissible. These positions also refer to religious law, specifically to a surainthe Quran that says ‘ifanyone saved a life, it would be as if he saved the life ofthe whole people’ (Quran [5:32]).6

II. Research Question

Acertainambivalence is found in the literature on the various categories of laws in today’s Muslim-majority states. Novel legal areas suchas organ transplantation are categorized as laws that do not have any connection to Islamic law since they have not been regulated by classical Islamic law. In contrast, organ transplantation is inherently connected to Islamic law because Islam considers itself to encompass all aspects of life. Islamic legal scholars consider this subject from an Islamic legal perspective by giving rulings on the permissibility of this practice.

This ambivalence raises the question of whether the notion that novel laws have no connection to Islamic law can be upheld. And ifnot, what would be the consequences for the theory that two distinct categories of laws exist, one based on religious law and one with no connection to religious law? Would this mean that there are no distinct categories of laws in states of the MENA region as claimed in scholarship or that there is a third category of law?

The questions that will lead the following research are these: Which legal principles and concepts form the basis of organ transplantation laws in the MENA-region? Are these principles and concepts of Islamic legal origin, or are they derived from international legal documents? What role does the Islamic legal tradition play in shaping and developing these laws? Whatis the influence of international legal instruments and other international bioethical and legal discourses in the formation of organ transplantation laws?

III. Aim and Relevance

All Muslim-majority states ofthe MENA region have regulations on organ transplantation. The selection ofstates followed three rationalities. Seeing that such

6 The Quran translations in this work are mine, made with the aid of Abdullah Yusuf Ali, The Meaning of the Holy Qur'an, 11th ed. (Beltsville: Amana Publications, 2011).

Introduction 5 delineations are inherently arbitrary, the author decided to follow the established practice, which considers the MENA region as its own historio-sociological entity. The second reason is the shared cultural background of MENA states making comparison feasible and meaningful. The third reason lies in the capabilities ofthe author who feels that such an analysis would be difficult without recourse to primary sources in their original language. This in turn limits the scope of the analysis to Arabic and Persian and thus to the MENA region.

This research specifically examines organ transplantation laws. Using organ transplantation laws, the research aims to show that some legal fields in MENA states fall outside the two categories described in the literature. This finding would mean that a strict dichotomy between Islamic and non-Islamic laws, as claimed in scholarship, does not exist and that there are laws comprising legal elements from different legal traditions.

In Muslim-majority states, the belief endures that the law should be in accordance with sharia. Successful political movements in MENA states, the neo-revivalist and Islamist movements, have popularized this belief. For Islamists, authoritative Islamic law is rooted in the early period of Islam, and Muslims today should act by the law of the early Muslims. Therefore, Islamists reject the secularization of today’s societies and states and call for a ‘return to sharia’ and a renewed commitment to Islam as the basis of society, politics, and law. This conception has led to divisions in various societies because Islamists believe Islamic and non-Islamic values are antagonistic and incompatible, leading to a clash of values.’ The findings of this research can contribute to overcoming and diffusing the widespread notion ofa ‘return to sharia’.

IV. Course of Research

The thesis consists of three parts. The first part introduces the foundations of Islam and Islamic jurisprudence and law. After the introduction, the literature characterizing Islamic law before and after the European encounter is presented, including a critique ofthe characterization prevalent in the literature.

The second part of the thesis introduces organ transplantation from a medicalandhistorical perspective. Furthermore, general and specific bioethical principles are detailed. Special attention is paid to the WHO Guiding Principles on Human Cell, Tissue and Organ Donation as an international legal instrumentto understand which elements are considered necessary for ethical

7 See Ira M. Lapidus, “Islamic Revival and Modernity: The Contemporary Movements and the Historical Paradigms,” Journal of the Economic and Social History of the Orient 40, no. 4 (1997).

6 PartI regulation of organ transplantation. Following the WHO Guiding Principles introduction, organ transplantation is evaluated from an Islamic perspective. The general Islamic legal tradition on medicine and ethics is introduced. Further, the fatwas establishing the legal and ethical handling of organ transplantationissues are analysed and depicted. Islamic legal opinionis presented from secondary literature, because access to primary literature proved to be difficult when performing research from outside the Islamic world.

The third part examines the organ transplantation laws of the following Muslim-majority states of the MENA region: Saudi Arabia, Kuwait, United Arab Emirates, Qatar, Bahrain, Oman, Yemen, Jordan, Syria, Iraq, Lebanon, Iran, Egypt, Libya, Tunisia, Algeria, and Morocco. Each state’s legislation is then assessed in light of Islamic legal rulings expressed in fatwas and the WHO Guiding Principles, representing the international legal standard in organ transplantation regulation. Finally, the results of the research are presented in the conclusions.