Athar Tatawwur al-Maarif al-Tibbiyya ala Taghayyur al-Fatwa wal-Qada
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- Dar Bilal Ibn Rabah
Athar Taṭawwur al-Maʿārif al-Ṭibbiyyah ʿalā Taghayyur al-Fatwā wal-Qaḍāʾ (The Impact of the Development of Medical Knowledge on the Change of Fatwa and Judicial Rulings) is a contemporary treatise on comparative Islamic jurisprudence and bioethics written by Hatim al-Hajj . Originating as a doctoral dissertation supervised and introduced with commendation by Salah al-Sawy, the work examines how advancements in medical science influence juristic preferences (tarjīḥ) and reshape legal verdicts (fatwā) and judicial rulings (qaḍāʾ) .
Background and Scope
The author undertook the study to bridge the gap between Islamic legal rulings and modern biomedical realities, drawing upon his background in both Islamic jurisprudence and medicine . The premise of the work rests on the legal principle that issuing a ruling on an issue depends on an accurate comprehension of its factual reality (al-ḥukm ʿalā al-shayʾ farʿun ʿan taṣawwurihi) . The author clarifies that modern medical discoveries cannot overturn an explicit, authentic scriptural text (naṣṣ) or an established scholarly consensus (ijmāʿ); rather, scientific data serves as an empirical basis for re-evaluating speculative rulings, weighing divergent classical opinions, and selecting the most soundly reasoned positions .
Structure
The book is organized into an introduction, a preliminary study, four major parts, a conclusion, and seven thematic indices :
- Preliminary Study (al-Tamhīd): Outlines the intersection between Islamic jurisprudence and medicine, establishing the legitimacy and necessity of modifying legal edicts when the underlying factual circumstances or empirical data change .
- Part One (al-Bāb al-Awwal): Covers acts of worship (ʿibādāt), divided into three chapters:
- Purification (ṭahārah): Circumcision for both sexes, sun-heated water (al-māʾ al-mushammas), menstruation (ḥayḍ), and post-natal bleeding (nifās) .
- Funerals (janāʾiz): Clinical signs of death and brain death, the prohibition against violating the sanctity of the dead, autopsies, and post-mortem surgical incisions .
- Fasting (ṣiyām): Contemporary medical applications and their effect on invalidating the fast, focusing on body cavities and anatomical pathways .
- Part Two (al-Bāb al-Thānī): Addresses customary matters (ʿādāt), containing three chapters:
- Foods and drinks: Rulings on animals fed impure matter (al-jallālah), feeding carcasses to livestock, and smoking tobacco .
- Masturbation (al-istimnāʾ) .
- Medical treatment (al-tadāwī): The legal status of seeking treatment, and managing patients in persistent vegetative states .
- Part Three (al-Bāb al-Thālith): Treats civil transactions and personal status (muʿāmalāt), spanning two chapters:
- Marriage and waiting periods: Minimum and maximum durations of pregnancy, superfecundation, and waiting periods for women with irregular or suspended menses .
- Legal interdiction and estate division: Physiological signs of puberty (bulūgh) and determinations regarding intersex individuals (al-khunthā) .
- Part Four (al-Bāb al-Rābiʿ): Focuses on the judiciary and forensic medicine, divided into two chapters:
- Judicial procedure: Rules of evidence in Islamic courts, the evidential authority of forensic evidence, and DNA analysis for lineage establishment .
- Wounds, retribution (qiṣāṣ), and penalties: Execution of bodily retribution under medical supervision, embryological development, ensoulment, and abortion .
The book closes with seven indices listing Quranic verses, hadith narrations, biographical figures, terminology, bibliographic references, figures and tables, and subject topics .
Methodology and Sources
The author utilizes a descriptive and documented method when presenting medical data, relying on modern medical authorities and international scientific literature, while adopting an analytical approach in medically contested areas .
For the juristic analysis, the author employs a comparative methodology across the four recognized Sunni schools—Hanafi, Maliki, Shafi'i, and Hanbali—incorporating views from the Zahiri school and other independent jurists when relevant . Positions are verified directly from each school's authoritative classical manuals, such as al-Mabsūṭ and Badāʾiʿ al-Ṣanāʾiʿ in Hanafi jurisprudence, al-Mudawwanah and Mawāhib al-Jalīl in Maliki jurisprudence, al-Umm and al-Majmūʿ in Shafi'i jurisprudence, al-Mughnī and Kashshāf al-Qināʿ in Hanbali jurisprudence, and al-Muḥallā in Zahiri jurisprudence . Prophetic traditions and historical reports cited outside Ṣaḥīḥ al-Bukhārī and Ṣaḥīḥ Muslim are provided with source documentation and graded for authenticity .
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