INTRODUCTION TO MUSLIM LAW THE ORIGINS 1 THE PRESENT 7 CONCLUSION 9

INTRODUCTION TO MUSLIM LAW

THE ORIGINS 1 THE PRESENT 7 CONCLUSION 9

THE ORIGINS

Life, including aspects of daily life, in Muslim societies has always been moulded and characterised by the precepts and values of Islamic Law, i.e. by the Shari’a.

This can be defi ned as the “straight way – which Muslims must observe – revealed by God to regulate and evaluate human conduct (that is, the acts of the body, a’mal al-badan, which are carried out externally, and not the acts of the heart, a’mal al-qalb, which concern the interior) limiting, for the usefulness of man in his earthly and after-earth life, the original liberty of human actions”.

In other words, the Shari’a is the religious Law of divine origin revealed and structured in an almost omni-comprehensive system according to the defi nitions of jurists (fuqaha, ulama and muftis) from the fi rst centuries onwards.

Whilst in Western culture the law regulates only some sectors of behaviour, the infl uence of the Shari’a is far more extensive in the sphere of the private, social, political and religious life of the believer. The result is the totalising character of Islam as a life system that interweaves religion and politics, the sacred and profane, the material world and the spiritual sphere in ways that are diffi cult to understand according to Western conceptual and juridical categories. For Muslim law, each human act belongs to one of the following fi ve categories: compulsory (fard, wagib), rec- ommended (mandub, mustahabb), free (ja’iz, mubah), reprehensible or unadvised (makruh) and forbidden (haram, mahzur).

The Shari’a has a considerable capacity of adaptation to situations as they vary; a peculiarity made historically possible above all by the absence of a su- preme authority supervising orthodoxy. This fl exibility was one of the elements which contributed to the expansion of Islam over the centuries to completely different peoples and geographical regions, without destroying the local cultures but only instilling the few fundamental principles of the faith, of worship and of Muslim law. The principal truths of the faith are listed in Koran 2.177 and 4.136:

“O ye who believe! Believe in God and His Apostle, and the scripture which He hath sent to His Apostle and the scripture which He sent to those before (him).

1

Dariusch Atighetchi, Islamic Bioethics: Problems and Perspectives.

© 2007 Springer.

1

Castro F., Diritto musulmano e dei paesi musulmani, in Enciclopedia Giuridica Treccani, Roma,

Istituto Poligrafi co e Zecca di Stato, 1989, Vol. II, 1–17. Id., Diritto Musulmano, in Digesto delle

discipline privatistiche, Vol. VI, IV Edizione, Torino, UTET, 1990, 1–66.

Any who denieth God, His angels, His Books, His Apostles, and the Day of Judgment, hath gone far, far astray.”

In addition, there are the fi ve pillars of Islam: the profession of faith, the fi ve ritual daily prayers, legal alms, fasting in the month of Ramadan and the pilgrimage to Mecca.

At the basis of the Shari’a we fi nd the four “roots of the law” (usul al-fi qh) or sources, from which the principles and rules of Muslim law have been drawn.

These “roots” are the Koran, the Sunna (Tradition), igma’ (unanimous consen- sus) and qiyas (reasoning by analogy); only the fi rst three are of divine origin.

1. The Koran, the supreme source of the religion and law, is the direct and literal word of God revealed to Prophet Muhammad (d. 632) through Archangel Gabriel and not a simple text “inspired” by God as is believed for the Old and New Testaments. For Islam, Muhammad is the last and most important of a long series of Prophets bearing a divine message; in order of importance and not chronological order, Muhammad is followed by Jesus Christ (Ar. Isa) and Moses, all of whom are related with a Holy Book from which the defi ni- tion of “religions of the Book” derives, which unites the three monotheistic faiths.

In this context the Koran is the last and perfect Revelation given by

2

Koran 2.177: “but it is righteousness – to believe in God and the Last Day, and the Angels, and the Book, and the Messengers.” As in the rest of the book, the translation of the Holy Text by a Mus- lim author has been preferred, namely Yusuf Ali, A. (Amana Corporation, Maryland, 1983).

3

Apart from belonging in both cases to the group of Prophets and Envoys of God, there are ine- liminable differences in the interpretation of the fi gure of Jesus in the two religions. For Chris- tianity, Jesus is a God (hence the very term of “Christianity”), and the Son of God. For Islam, however, in the respect of monotheism, there exists exclusively one, unique and transcendent God. For Muslim apologetics, Christianity is not a pure monotheism. This criticism is directed above all at the concept of a triune God, i.e. faith in three divinities: Father, Son and Holy Spirit, which is associated with the worship of other divinities such as Virgin Mary. In two key passages, the Koran explicitly admonishes Christians against these false beliefs. Verse 4.171 says:

O People of the Book! Commit no excess in your religion: nor say of God aught but the truth. Christ Jesus the son of Mary was (no more than) an apostle of God, and His Word, which He bestowed on Mary, and a Spirit proceeding from Him: so believe in God and His apostles. Say not “Trinity”: desist: it will be better for you: for God is One God: Glory be to Him: (far Exalted is He) above having a son.

In 5.116 this criticism also includes Virgin Mary:

And behold! God will say: “O Jesus the son of Mary! Didst thou say unto men, worship me and my mother as gods in derogation of God?” He will say: “Glory to Thee! Never could I say what I had no right (to say).

Had I said such a thing, Thou wouldst indeed have known it. Thou knowest what is in my heart, though I know not what is in Thine”.

Every justifi cation of the faith and adoration of other beings outside the One God is refused.

These, like other beliefs, are said to be the work of the alterations made by the Apostles, i.e. the fi rst followers of Christ, to the original Christian message which was in line with the pure mono- theism of Abraham. The Catholic Church itself, according to Muslim tradition, is said to have deliberately confi rmed these mystifi cations.

The totalising character of Islam is personifi ed by the fi gure of Muhammad who simultaneously

embodied (contrary to Christ) the roles of political and military leader and social guide, as well

as that of the Prophet (nabi) and Envoy of God (rasul ).

God which “updates” and defi nitively “supersedes” the previous revelations altered by their respective followers, restoring the original and pure Abraha- mic monotheism. In addition, as the direct word of God that has reached us unaltered compared to its fi rst written version, dating back to the times of the third Caliph Uthman (644–656), the Koran is the perfect and inimitable monument of Arabic language and literature. For all these reasons, the Koran is a divine miracle, which explains the tremendous role it continues to play in the spiritual and social life of Muslims, perhaps to a greater extent than that of the previous Holy Books of Jews and Christians.

2. The Sunna (Tradition) is the set of rules based on the words, actions and tacit assents of the Prophet. Its importance is dictated by the Koran that re- quires the faithful to imitate the example of Muhammad. These testimonies are expressed in the ahadith (sing. hadith), i.e. the accounts or “sayings” of the Prophet, numbering some dozens of thousands, which at times are in contrast with one another and were compiled into various collections after his death,.

Their greater or lesser authenticity is attested through two criteria: the au- thority of the testimony of the transmitters forming an uninterrupted chain which reaches the person who fi rst heard the Prophet, and the examination of the content of the collection or Tradition; on these bases, the ahadith are dis- tinguished into authentic or healthy (sahih), good or acceptable (hasan) and weak (da’if). As a consequence, these accounts possess a different normative value; therefore the ahadith present in the six most authoritative collections (Bukhari, Muslim, Abu Dawud, al-Tirmidhi, al-Nasa’i, Ibn Maja), but above all in those of Bukhari (d. 870) and Muslim (d. 875) (considered sahih), act as models to be imitated by the faithful.

The Sunna represents the perfect supplement to the Koran, completing it when the latter says nothing and in- terpreting it authentically when it is ambiguous or incomplete; for example, some Koranic passages introduce prayer without establishing the ritual, or prescribe ablutions without specifying the ways to perform them and only the ahadith have the authority to fi ll this shortcoming. At the same time, many juridical rules are also based on the Sunna and not the Koran, for example the rules on the division of booty, or those for the fast, the pilgrimage, and so on.

This explains why the words of the Prophet make the second source of law of vital importance for the organisation of life in Muslim society and, indeed, from the juridical point of view, due to the variety of issues dealt with, it has become a source that is of greater importance than the Koran itself.

3. The Prophet said: “Allah has protected you from three things: . . ., that those who follow what is false should not prevail over those who follow the truth, and that you should not all agree in an error.”

In fact, igma’, or consensus

4

Santillana D., Istituzioni di diritto musulmano malichita con riguardo anche al sistema sciafi ita, Roma, Istituto per l’Oriente, 1926–1938, Vol. I, 36–37.

5

Abu Dawud, Sunan, Trials and Fierce Battles (Kitab Al-Fitan Wa Al-Malahim), Book 35, no.

4240, in www.usc.edu/dept/MSA/fundamentals/hadithsunnah/abudawud/satintro.html

of the community on issues of a ritual, legal and religious nature, when it is

“continuous and unanimous” is valid as a source of Law that is the equivalent to the Koran or a hadith refl ecting, in this case, a position inspired by God.

According to the philosopher and jurist Averroes (d. 1198) two degrees of consensus should be distinguished: (a) regarding elementary duties, the igma’

involves the consensus of all the faithful; (b) for the rules of worship and law, the legal schools generally consider the consensus of the doctors of Muslim Law suffi cient as only they are capable of “correctly understanding the law”.

In the opinion of some scholars, igma’, although defi ned as the third source in order of importance, is of decisive importance as it guarantees the authen- ticity and authority of the fi rst two sources of law.

Indeed, it is thanks to the continuous and unanimous consensus of the faithful that the Koran is recognised as the authentic word of God and the ahadith as the word of the Prophet.

4. When the fi rst three sources of divine inspiration fail to provide a clear rule of conduct in a given situation, it becomes lawful for the majority of the legal schools and within very varying limits, to have recourse to qiyas, or reason- ing by analogy. This is an instrument of logic that allows deducing, with the aid of specifi c criteria, new rules of conduct to handle unforeseen situations, taking as a starting point the prescribed rules in similar cases identifi ed in the Sacred Sources.

Muhammad himself and his Companions, in the case of necessity, used this method of logic and deduction, as attested by the words (hadith) addressed by the Prophet to Mu’adh Ibn Jabal, one of his envoys in the Yemen. The Prophet asked: “How will you judge when the occasion of deciding a case arises? He replied: I shall judge in accordance with Allah’s Book. He asked: (What will you do) if you do not fi nd any guidance in Allah’s Book? He replied: (I shall act) in accordance with the Sunnah of the Apostle of Allah (peace be upon him). He asked: (What will you do) if you do not fi nd any guidance in the Sunnah of the Apostle of Allah (peace be upon him) and in Allah’s Book? He replied: I shall do my best to form an opinion and I shall spare no effort. The Apostle of Allah (peace be upon him) then patted him on the breast and said: Praise be to Allah Who has helped the messenger of the Apostle of Allah to fi nd something which pleases the Apostle of Allah.”

There remains the fact that the method by analogy is an essential instrument,

6

Santillana, op. cit., 42–44.

7

Schacht J., Introduzione al diritto musulmano, Torino, Edizioni della Fondazione Giovanni Agnelli, 1995, 123.

8

In other terms, according to the expression of Juynboll Th.W., Manuale di diritto musulmano secondo la dottrina della scuola sciafeita, Milano, Vallardi, 1916, 32, qiyas consists of transfer- ring one precept from the root (that is, from the case expressly formulated in the Sacred Sources) to a branch (that is, to a new case not mentioned in the text).

9

Abu Dawud, Sunan, The Offi ce of the Judge, Book 24, no. 3585, in www.usc.edu/dept/MSA/fun-

damentals/hadithsunnah/abudawud/satintro.html

due to its fl exibility, for the adaptation of the classic juridical heritage to the challenges of modernity. At the same time, it is exposed to the criticism of traditionalists, according to whom there already exists in the Koran and in the ahadith everything that man needs without having to have recourse to fallacious human logic.

The fi rst three “roots” or sources of the law and religion (the Koran, Sunna and igma’) represent the only unquestioned authorities in Islam, which does not have a supreme juridical-religious authority, nor an offi cial teaching capable of guiding the faithful in all the circumstances on which the three sources are lack- ing in precise and exhaustive directives. The absence of this central authority is currently felt in particular regarding the need to rapidly provide authoritative answers valid for the whole of the Muslim world in the face of the ethical chal- lenges presented by biomedicine.

When the Law is silent or it is impossible to decide its real meaning, despite recourse to interpretation by analogy, it is possible to turn to two subsidiary rules of law, namely the criterion of utility (istislah, the principle of utility = maslaha),

used above all by Malikites and Shafi ’ites and the criterion of equity (istihsan).

The Hanafi tes in particular turn to the latter when deduction by analogy means excessively rigid or potentially dangerous positions whilst the criteria of utility and equity allow identifying the best or preferable solution.

In fact, after the death of the Envoy of God (d. 632) it was evident that a mere literal knowledge of the Koran and of the “sayings” of the Prophet was not suffi cient to orient, in practice, the conduct of the faithful due to the lack of indications on many problems, but also due to the emergence of contrasting interpretations of the existing contents and precepts. On the initiative of expert technicians (the jurists) capable of consulting the sources, the “science of canonical prescriptions” (ilm al-fi qh), or science of the law, began to develop, which has become the most important of the sciences of Islam, even greater than direct knowledge of the Koran and of the Sunna, as only their correct interpretation provides the faithful with the valid directives to follow.

During the early centuries after Muhammad, i.e. until approximately the 10th–11th centuries AD , the great jurists and their students could use the ana- logical method (qiyas) with considerable freedom in their effort to “personally”

10

Santillana, op. cit., 71. The important impact of this juridical criterion is underlined by al-Qarafi (d. 1285) when he points out that in Islam the precepts have multiplied with the passing of time:

Indeed, we see the Companions of the Prophet introducing many provisions because they had recognized their usefulness; they decided to put the Koran into writing, whilst nothing authorized them to do so in the past laws, they minted coins, built prisons and so forth. For the same reason, i.e. usefulness, the law subjected testimonial evidence to strict conditions that were not at all to be found in Tradition (hadith).

11

Juynboll, op. cit., 15.

interpret (igtihad),

explain and comment upon the “roots” of the law, conse- quently drawing on them for the principles and rules of the Shari’a. This period coincides with the “creative” phase of the Law, thanks to the work carried out by experts on the law, including the founders of the canonical juridical currents or schools of Sunni Islam which take their names: Abu Hanifa (d. 767) with the Hanafi te school; Malik Ibn Anas (d. 795) initiator of the Malikite school;

Muhammad al-Shafi ’i (d. 820) who founded the Shafi ’ite school and Ibn Han- bal (d. 855) with the Hanbalite school. These schools, which are still active, are considered the canonical schools as they share the juridical guidance of Muslim orthodoxy in Sunni Islam (which accounts for about 90% of Muslims), whilst the Shi’ites (the remaining 10%) have their own juridical schools. The presence of four canonical Sunni schools brings us to the conclusion that the different positions they sustain cannot concern essential elements such as dogmas or the principles of the faith. However, when schools agree on some specifi c point, it is stated that this is the effect of igma’ or consensus and, therefore, “compulsory doctrine” for believers. When, on the other hand, there exist differences, the rules of each school have particular importance for the followers of each school.

Today, the Hanafi te school is the most widely diffused in the Muslim world since it was imposed, as the offi cial school, in the territories of the Ottoman Empire.

The Malikite school is present today in the Maghreb, in sub-Saharan Africa and in Egypt. The Shafi ’ite school is active in the Indian subcontinent, east Africa, Egypt and Yemen. The Hanbalite school is currently dominant in Saudi Arabia.

Since the 10th–11th centuries, a decisive date in the development of Muslim law, in Sunni Islam (not in Shi’ite Islam) recourse to the effort of personal inter- pretation (igtihad) of the sources has no longer been legitimate (except formally) for at least two fundamental reasons: (a) according to the scholars of the period, the main legal problems had already been solved by previous masters; (b) it was no longer possible to acknowledge prestige and authority to any jurist similar to that granted to those masters of the past.

With the “closure of the door of igti- had” (accepted conventionally by the Sunni schools) jurists are no longer recog- nised as having the authority necessary to “base themselves directly on the Koran or on Tradition, or to depart from igma’, consensus, nor to personally apply the methods of logical deduction. All this is given to them already in the books of their school with their countless glosses and commentaries, and there is nothing else to do except follow the path already laid out.”

Therefore, the main function of the jurists, after about the 11th century, was to be limited to imitation (taqlid)

12

Santillana, op. cit., 70 specifi es the characteristics of igtihad:

Igtihad is therefore not free will, a subjective and personal opinion, but cautious will, the juridical conscience of the interpreter, refi ned and trained by intense and profound medita- tion of the law as a whole, and therefore leads to fi nding that reason of usefulness that is the informing spirit of the whole juridical body, in order to apply it to the specifi c case put to the interpreter.

13

Macdonald D.B., Idjtihad, in Encyclopédie de l’Islàm, Paris, 1971, Vol. III, 1052.

14

Pareja F.M., Islamologia, Roma, 1951, 402.

of the way previously marked out or to a “technical” interpretation of the classic provisions aimed simply at adapting them to the new concrete situations (with- out the possibility of formulating original juridical solutions); to explanation of the rules contained in law; to the task of classifying and commenting upon the codes, principles and relative previously established interpretations.

All this was accompanied by the formulation of an impressive amount of rules, norms and interpretations of differing values, defi ned from the Sources by the jurists, the only ones historically qualifi ed for this purpose, who made it problematic for the faithful to make any attempt at direct access to the Sources.

From the 11th century there thus began a long historical phase of more re- strictive juridical refl ection, lacking in the fl exibility and creativity that had char- acterised it in the early centuries, a phase of decline which lasted until 1900 when, on contact with the West, the need for an awakening of the Muslim world in all fi elds, including the juridical one, became evident. The many theories put forward to promote this reawakening include two main trends: (1) that which encourages a direct return to the Sacred Sources, interpreting them “freely” (re- maining faithful to the spirit of Islam) without remaining bound to the tradi- tional mediation of jurists with their interpretations; (2) opposed to this, we fi nd those who ask for a return to the literal application of the Shari’a as only it contains everything that is useful for guaranteeing a return to the dominance and successes of the golden age of Muslim civilisation.

THE PRESENT

What is to be done when the sources of Muslim law, with their canonical inter- pretations, drawn up before the 11th century, do not express themselves or do not express themselves clearly on new situations caused by the continuous historical and social changes over the centuries (in particular after the closure of the “door of igtihad”)? On these (very frequent) occasions, the faithful call on the doctors of Muslim law (muftis, fuqaha, ulama) who, using the analogical method (qiyas) and personal interpretation (igtihad), issue fatawa (sing. fatwa), i.e. juridical opinions with which they explain to the faithful the prescriptions contained in the Sourc- es, indicating how to behave in the case in point. Once again, we can recall that through the fatwas, the jurists should not offer new juridical solutions to prob- lems (they may be accused of departing from the Shari’a) but present “technical”

interpretations of already existing rules to model them on the new situations. In spite of this, depending on the authority and the preparation of the fi gure issuing them, the fatwa represents, at least morally, the rule of conduct to be followed for the faithful of the same juridical school. On the contrary, from the juridical point of view, the fatwa (as an opinion) is not binding for the faithful

(except possibly

15

See the fatwa by sheikh Mahmud Shaltut with the signifi cant title: La fatwa n’oblige pas [The

Fatwa does not oblige], in Borrmans M., Fatwa-s algériennes, in Scarcia Amoretti B. and Rost-

agno L. (eds.), Yad Nama, Roma, Bardi, 1991, Vol. 1, 83–107, 83 note 2.

for the faithful of the same school) and may be contradicted by the opinions of other jurists, all the more so as a jurist can modify his own opinion in space and in time.

Two “types” of mufti can be distinguished historically, the private ones (al- most all of them) who attained this function thanks to the consideration won amongst the faithful due to their juridical-religious competence “acquired freely and almost without a licence”

and muftis appointed by the State (very few individuals), for example the so-called muftis of the Republic (or similar au- thorities). Through this appointment, governments intend to obtain specifi c in- dications on the religious validity of determined positions, by a single qualifi ed interlocutor and who is in some way a representative of the community of the faithful. In Egypt, for example, the fatwas of three authorities are of particular value for the State: the Grand mufti of the Republic, Ali Gumaa; the sheikh of Al-Azhar, Muhammad S. Tantawi and the Committee of Fatwas of the Univer- sity of Al-Azhar. However, the intrinsic value of a fatwa does not change if it is issued by a private mufti or by a state mufti, as it remains a juridical opinion that can be challenged by other jurists.

Even if the authority of the mufti is now predominantly moral (it is the State that makes the laws and it is not obliged to implement the advice of jurists or even of the offi cial muftis of the State) their infl uence on society must not be un- derestimated. This infl uence is in fact due in the fi rst place to the prestige of the jurists which is spontaneously acknowledged by believers, but also to the techni- cal characteristics of the fatwa, an opinion with which a doctor of the Law pub- licly (orally or in writing) answers questions of different kinds asked by private citizens or by various institutional bodies. In the present day, this has become constant recourse to mass media, thanks to special columns in newspapers and magazines, as well as specifi c slots in radio and television programmes.

Today, to provide more adequate answers to the challenges of modernity and to problems that go beyond the traditional competences of the jurists, Muslims increasingly have recourse to the opinions provided by meetings, conferences, congresses and academies that bring together jurists and experts from various parts of the Muslim world.

1. The fi rst purpose is that of collectively examining the issues to express deci- sions-resolutions and/or recommendations (the former with a prescriptive value) which, in any case, essentially preserve the value of opinions that can be modifi ed and challenged by other juridical-religious subjects and bodies. Even if Muslim law has never known councils or assemblies of doctors to solve dubi- ous juridical or theological questions, these meetings are legally legitimised (us- ing reasoning by analogy) if it is possible to fi nd similar precedents in the life of

16

Abu-Sahlieh S.A., L’Institution du mufti et de sa Fatwa/Décision en Islam, Praxis Juridique et Religion, 1990, 7, 125–148.

17

Castro, Diritto Musulmano, in Digesto delle discipline privatistiche, art. cit., 14.

the Prophet and his Companions. In the case in question, the meetings by the Companions of Muhammad to solve the doubts of the faithful are taken as a juridical precedent.

In divergences between doctors of the law, there does not exist a superior authority that can decide; the dispute is solved only by the passing of time or by the dominant opinion which thus comes to represent the consensus of the community as a whole (igma’).

2. A second purpose of these meetings consists of the attempt to outline a clear and univocal position, the expression of the community of the faithful (the umma) and, in this case, with a strong normative value (referring to the igma’).

In fact, the problem of the effective representation of similar bodies, in the absence of a supreme authority and offi cial teaching, remains unsolvable for at least two reasons: (1) Because the largest organisations in the arena

are spon- sored and fi nanced by groups of different Muslim countries, lending themselves to the accusation of being their political-religious instrument. (2) Because the number of Muslims in the world is constantly growing (at present they number almost one and a half billion) whilst the differences within it make it increas- ingly composite and fragmented to the point that it is very diffi cult to identify common concrete and operative programmes beyond the acceptance of the prin- ciples of the faith and defence of Islam.

CONCLUSION

At the conclusion of this juridical introduction, it would appear useful to sum- marise some important items of information which we will constantly meet in subsequent chapters and which signifi cantly infl uence the course and quality of the debates on science and on the development of medical science in particular:

1. The absence of a supreme juridical-religious authority and of offi cial teaching.

2. The substantial value of “opinion” of each pronouncement expressed both by individual doctors of the Law and by meetings, academies, etc. of jurists and experts on all the new problems requiring answers that are clear as well as co- herent with the principles of Islam. Each of these positions can always be po- tentially challenged by other meetings or by other jurists. In other words, if the sacred texts do not express themselves exhaustively on a given problem, each competent Muslim, whilst expressing himself in the name of Islam, only ex- poses his own opinion and interpretation with which other Muslims may more or less agree. None of these opinions, although deeply rooted by deduction in

18

Assemblée de l’Académie de Droit Islamique, in Etudes Arabes, Dossier, 1989, 1, 76, 113–121.

19

Castro, Diritto Musulmano, in Digesto delle discipline privatistiche, art. cit., 14.

20

Starting from the three main ones: the Rabitat al’Alam al-Islami (Muslim World League – MWL)

based in Mecca; the Munazzamat al-Mu’tamar al-Islami (Organisation of the Islamic Con-

ference – OIC) based in Jeddah and the Mu’tamar al-’Alam al-Islami (World Muslim Confer-

ence – WMC) based in Karachi.

the Sacred Sources, may be considered equivalent to the eternal and unchange- able positions of Muslim law.

3. The traditional role of the Muslim doctors of the law as the sole qualifi ed interpreters of the Koran and of the Sunna is now going through a critical pe- riod. The causes for this include the increased literacy rate which leads many people to bypass the interpretative mediation of the Muslim jurists (classical and modern) to go directly to the sources, interpreting them personally. If we consider that this phenomenon involves the tens of thousands of ahadith with a different normative value (and at times contradicting one another), we can understand the reason for the proliferation of theories, opinions, and judgements that are more or less anchored to the Sacred Sources but often with a contradictory tone characterising the present-day Muslim world, in particular on the issues that we will be dealing with.

4. Today, the constitutions of Muslim states contain an article in which it is specifi ed that the Shari’a forms one of the sources or the main source of the Laws of the state. Nevertheless, the majority of these countries are governed by codes, institutions and legal systems inspired by Western systems. The at- tempt to reconcile these infl uences with the oldest institutions of the Shari’a, has been translated, more often than not, into the isolation of the latter. At the same time, the jurists mainly represent only a moral and religious author- ity against the power of the State, the only one authorised to issue laws; in addition, the various State-appointed muftis are government employees and, as such, solicited to justify, from the juridical-religious point of view, the po- litical and social programmes of the government. However, as far as bioethics is concerned, probably due to the delicacy of the subjects in question, state legislations generally give great consideration to the opinions of the most authoritative doctors of the Law.

All these preliminary remarks help explain why the different positions taken by the different countries on issues of bioethics can easily fi nd precedents which are more or less authoritative in classic juridical refl ection such as to legitimise them from the religious point of view. This is, for example, the case of popula- tion control policies and of legislations on abortion where the various positions of contemporary jurists are linked with the differentiated refl ections of the past whilst, in their turn, the state laws can refer to both.

The link of continuity that can often be identifi ed between the positions of the various states with respect to the juridical conceptions of the past represents the reason why we will have remarks on classic formulations alongside the defi - nitions of contemporary doctors of the law and the national laws. At the same time, we can note those areas in which regulation by classic juridical doctrine is shortcoming or absent (e.g. brain death criteria) giving the opportunity to present the course taken by jurists with the aim of religiously legitimising these modern criteria.

The aim of the work is to offer a fi rst attempt at a unitary refl ection on

three levels (juridical refl ection, national laws and conduct of the faithful) on

a representative part of the aspects involved in the debate on “bioethics” in

the Muslim world, taking for granted the coverage of issues that evolve and

change on a daily basis. Particular attention will be paid, out of all the Muslim

countries, to Saudi Arabia and Egypt both due to the prestige of their respec-

tive juridical-religious bodies and the important representative role played by

these two countries in the Muslim context.