- Sharia Law and Organ Transplantation: Through the Lens of Muslim Jurists1
A common error made by non-Muslim and Muslim analysts alike is to depict Islam as monolithic and static and Sharia Law or fiqh (Muslim jurisprudence) as uniform and frozen in time. The reality is that there is great diversity in the way Muslims live their lives and a plurality of positions Muslim jurists hold on ethical and legal issues. This article begins with a brief overview of the evolution of Sharia Law and the classical usul al-fiqh (roots of jurisprudence), and the tradition of ikhtilaf (differences, disagreements) that exists within Muslim jurisprudence.2 It discusses how the latter is exemplified in juristic positions on organ transplantation and brain death which range from consensus to dissent based on particular interpretation of the Sharia. The second half of the article consists of a “case report” from Pakistan beginning with a brief narrative of events around the passage of the national Transplantation of Organs and Tissues Ordinance, 2007 in order to stem kidney commerce in the country. It describes a petition against it in the Federal Shariat Court (FSC) of Pakistan arguing that specific clauses of the Ordinance were contrary to Sharia, and discusses arguments offered by jurists and lawyers appearing on behalf of the petitioner and the respondents, the role of physicians, and the final FSC judgement dismissing the petition. This case illustrates that religious positions and rulings are not fashioned in a vacuum but shaped by interplay of perceived boundaries of authority within political and legal systems and existing societal norms.
Sharia Law and ikhtilaf al-fiqh
One of the factors that has played a crucial role in the development and moulding of Muslim ethical and legal thought is the nature of the early Muslim [End Page 316] community, and the particular historical circumstances including the varied geographical, political, and administrative backgrounds within which Islam evolved. Unlike Christianity that remained a religious community for its first three centuries, Islam was a religious-political force from its inception.3 Its rapid spread beyond the Arabian Peninsula and interface with non-Arab cultures and societies, and political schisms within the growing Muslim community itself, resulted in early challenges for Muslims in the realms of the sacred as well as the profane. Efforts in the attempt to protect the early religious ethos and guard against fragmentation of an expanding empire included the development of Sharia Law, or Islamic Law as it is sometimes referred to. Over time, Sharia Law came to be accepted as a guide for not only religious duties and rituals such as prayers and fasting but also interpersonal and worldly dealings, thus subsuming within it the legal and the ethical pertaining to all aspects of Muslim lives (Hodgson 1977). Ethics therefore became an integral part of Sharia Law with scholars of fiqh (jurisprudence), the fuqaha, becoming the locus for ethical discourse and what constitutes right and wrong acts. According to Kevin Reinhart and others, “Islamic Law is the central domain of Islamic ethical thought”, and is “not merely law but also an ethical and epistemological system” (Reinhart 1983; Hourani 1985; Sachedina 2009). Most Muslims accept that interpreting and ascertaining the “meaning” of Sharia as related to ethics and law is the domain of fuqaha (jurists) rather than of theologians and philosophers.
Sharia Law is religious by nature and considered to flow from the guidance found within a divine Sharia. Difficulties arise however in the ambiguous, and sometimes misleading, usage of connected but not identical terms such as Sharia, Sharia Law or Islamic Law, and the discipline of fiqh (from the Arabic word meaning “discernment”). The word Shara’a as it appears in the Qur’an (Sura 45: Ayah 18), and from which the term Sharia is derived, is an over-arching concept referring to God’s appointed way for Muslims to follow in life in order to gain salvation in the hereafter; it is a path that is divinely ordained and therefore immutable (Rahman 1979).4 But comprehending what God “wants” from humans and fashioning this into moral principles and legal edicts require human reasoning and discernment. Unlike Sharia therefore, Sharia Law is a...