a critical appraisal of necessity (ḍarūrah) in Islamic law with reference to medical fatwas

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Ateeq, Mohammad Monawwar (2020). a critical appraisal of necessity (ḍarūrah) in Islamic law with reference to medical fatwas. University of Birmingham. Ph.D.

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Abstract

This thesis is a critical appraisal of the ethical construct of ḍarūrah (necessity) which is invoked in ethical-legal reasoning to override prohibition laws. It studies the concept of ḍarūrah and its impact on the Islamic moral ordinances considering various usages of the term in classical and modern literature. The first objective of this study is to offer critical conceptual distinctions between ḍarūrah and closely associated terms like ḥājah and ʻumūm al-balwā to identify and compare the extent to which they modify religious proscriptions with reference to the definitive objective of the Sharīʻah; protecting the human body and life from harm. The second objective is to apply these constructs to the utilisation of oral and non-oral medical treatment with various types of unlawful means like blood transfusion. For the first time in Western academia, this thesis observes the neglected research of Sunnī Barelwi scholars at the Majlis-e-Sharʻī of Mubarakpur in India in this field. It concludes that the impact scope of necessity varies based on its meaning and that in the narrowest concessionary context it permits certain oral and non-oral unlawful medical treatments rendering them compulsory/obligatory on the patient under certain conditions. The Islamic moral laws are classified according to scriptural language differences and epistemic strengths of proofs and a feature-based evaluation is offered to prohibited acts in an academically unprecedented manner. The significance of ʻumūm al-balwā as a permissive and understudied construct is also revealed filling a vital gap between the scope of ḍarūrah and ḥājah. A detailed analysis of these notions results in the formulation of a fresh comprehensive taxonomy on the moral judgement of treatment on a patient based on an analysis of medicinal efficacy, the value of physician testimony, patient experience of clinical efficacy, and the purpose of treatment considering which an ethical code is also posited for Muslim physicians. This research advances our understanding of the aspects of mutability in the Islamic law to safeguard human life, body and health with reference to the four Sunnī schools of law.

Type of Work:

Thesis (Doctorates > Ph.D.)

Award Type:

Doctorates > Ph.D.

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