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MERCY KILLING IN ISLAM: MORAL AND LEGAL I S S UE S Sayed Sikander Shah (haneef) in this article, he argues that a medical doctor can escape worldly punishment if he acts with the consent of the patient's legal guardian.
MERCY KILLING IN ISLAM: MORAL AND LEGAL I S S UE S Sayed Sikander Shah (haneef) in this article, he argues that a medical doctor can escape worldly punishment if he acts with the consent of the patient's legal guardian.
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MERCY KILLING IN ISLAM: MORAL AND LEGAL I S S UE S Sayed Sikander Shah (haneef) in this article, he argues that a medical doctor can escape worldly punishment if he acts with the consent of the patient's legal guardian.
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Bevieved vovI|s) Souvce AvaI Lav QuavlevI, VoI. 11, No. 2 |1996), pp. 105-115 FuIIisIed I BRILL SlaIIe UBL http://www.jstor.org/stable/3381592 . Accessed 09/01/2012 0958 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org. BRILL is collaborating with JSTOR to digitize, preserve and extend access to Arab Law Quarterly. http://www.jstor.org MERCY KILLING IN ISLAM: MORAL AND LEGAL I S S UE S Sayed Sikander Shah (Haneef) INTRODUCTION Modem scientific advancements in ehe fleld of medicine have changed che tradiiional situation where an ill person would be declared clinically dead. Undoubtedly, Islam strongly conriemns the ending of a human life on the grounds of mercy and human sympathy. The issue which concemsus here, however, is how does Islam view the stopping of a drug or life-support system when a person who, because of brain (lamage, is totally paralysed and shows no sign of life except that his heart is beating or his breathing is sustained by life-saving apparatus. To the best of my knowledge, to date, there is no juristic verdict (Al-Fatwa) on the point. I consider at, aldough it is not viewed as a permissible (Al-Mubah) act, the medical doctor can escape worldly punishment (Al-Ucqubah), if he acts with the express consent of the patient's legal guardian (legal heirs in dis case). I intend that this article should encourage Muslim scholars to come up with a more conclusive legal opinion on this issue. Mercy killing (Qatl Al-Marhama#), according to its dictionary meaning, refers to the killing of a person who suffers from irrecoverable illness or when his sickness is terribly painfiul.l Broadly speaking, it covers all folnls of killing, of an elderly person, a terribly disfigured baby, and a person in a permanent coma. Historically, this form of aggression on human life has its prececient even among some priiive tribes, where elderly people who were no longer socially or economically useful were made to climb a tree and hold tightly to its branches. Then some strong man would shake e tree vigorously; if e person was able to hold on, dey were allowed to live, otherwise they were put to death. On other occasions someone niight be taken to a desert and left to desiny.2 However, wich 1 The word mercy killing or Qatl Al-Marah is synonymous wid t:he English terminology "euthanasia". It is a compound word; Qatl mesuns kilig and Marhamah is derived fFom the word ra4 and rZhms wbidh means to have mercy upon someone have compassion, and be merciXl. See Mohammed Ibn Mukrim Ibn Maniir, Lisan Al-/rab, V.12, Dar-Sadir, 1982, p. 230; Miltn J. Cowan, A Dictonary of Modern Written Arabic, Beirut, 1974, p. 331; see also Abdul-Wab HEwmad, Dirasat Mu'anrnaqah Fil-Fiqh Al-gina'i Al-Muqaran', Matbu'at Jami'at->Kuwait, 1983, pp. 301-308. 2 This was not only practised by ie ancient tribes but esren some philosophers like Plato and Bacon supported the nodon that all due consideration should be given to e healthy secdon of soaety, but the aflflicted strata, especially if their ailment proves to be incurable, should be allowed to comfortably die. See .HAwmad suprs, n. 1, p. 314. 105 106 ARAB LAW QUARTERLY the establishment of welfare homes and chantable bodies these practices became outmoded. Advzcements in the field of medical science though, and the occurrence of new illnesses mean that it is not only where the elderly are concemed where such problems can occur, but they can also concem the very young, such as terribly ill or disfigured infants in utero, or those whose heart beat is sustained by life-saving apparatus, or those sufferiIlg from AIDS or cancer. To further complicate the issue great concem has been expressed irl instances where simple illness might be declared irrecoverable by those interested ill the dissection of vital organs for transplalltation, who feel they can evade any legal consequences by clsiming a mercy killing.3 This form of attack on human life has already been decriminalised4 in some secularist societies, alld its legalisation has become the subject of debate in others. It is usually carried out either by close relatives against their most loved and dear ones5 or by doctors,6 and they go unpunished by claiming that it was not male fide, i.e. the motive was good. To address the issue from an Islamic perspeciive involves serious moral and legal questions, such as what is the Islamic view of mankind, how does Islam view such issues of compassion and sympathy, its view on diseases even if they are incurable, and the ultate quesiion, what is its legal standpoint on the issue? These issues mnll now be addressed. THE ISLAMIC VIEW OF A HUMAN BEING Islam regards human beings with the greatest of respect, and Allah (s.w.t.) has made a human being to be the noblest among his creatures,7 and has created him with the object of carrying out His viceregency on earth.8 Thus He has declared his life to be absolutely inviolable. It is of no matter if that life is of an aged, or ailing, or completely abnormal human being. This is very clearly expressed in the Qur'anic verse: "It is not lawful to take away a human life except with due process of law,"9 and the Prophet's (p.b.u.h.), hadith where he is reported to have declared: 3 hwmad, p. 319. 4 What I marl by decrimir.nlisaton is that in many instances individuals, especially the spouse, commit this against their partner merdy because they are partially paralysed or are suffering from some other severe disease such as cancer. When he is charged, he simply contends, "I did it out of sympathy", andisacquitted. Seeforcascs,Hawmad, supra, n. l,pp.305 313. 5 For instance, in 1949 a female student by the name of Paigat Carol Ann Elled his father who was suffering from cancer and vvas acquitted. See H. awmad, supra, n. 1, p. 306. 6 For instance, Dr Mair an Fnglish medical doctor in 1975 said, " a lot of medical practitioners are resorting to euthanasia surreptitiously but now we taLsc about it loudly", see .Hiwmad, supra, n. 1, p. 313. 7 Al-Qur'an, 17:70. 8 Al-Qur'an, 2:30; 38:26. 107 M E R C Y K I L L I N G I N I S L A M "It is lmlawful (haram) to violate the sancuty of anoier's life that Allah ts.w.t.) has declared it to be inviolable''.l Commeniing on the above Qur'anic provision, the leading authorities hold that no human life can be destroyed except as provided by tShe ShanXa. It is agreed that based on the authorities from the Qur'anic provisions and the Prophetic traditions there are five irlstances where a person's life can be rightfdlly endecl; namely, for promiscuity (Al-Zina), Apostasy (Riddah), Hirrabah (Highway Robbery), inten- tional killing of a human being (culpable homicide) and rebellion (Al-Baghz).ll Thus, to kill an ill person on the grolmds of mercy or sympathy is not among the list of instances where it can be considered a lawfbl ao, dchus it must be considered unlawful ab initio (Haram). Moreover, Islam views the act of helping an ill person to die not as a sympatheiic act but as an act which smounts to an act of utter cruelty. Similarly, Islam's view on illness and misfortune rests Ox1 disiincKy different premises. THE IStAMIC VIEW ON AILMENTS AND ITS CONCEPT OF SYMPATHY If the seciar mind finds it absurd to maintain and preserve the life of a suffering person and its notion of morality dictates that such person should comfortably be put to deai mstead of bemg left to linger on in agony and pain, Islamic faii and morality, which measures every hwnan affair with the yardsiick of right and wrong, as dictated by divine sanction, sets out different guidelines on the issue. First, according to the Islamic world riew, illnesses and infirmities in life are facts of life that must be met with patience, and such adversities, or misfortune of any type, ought to be regarded as challenges to be faced with fortitude. Therefore, such an afflicted person is directed to regard his sufferings as a test from Allah (s.w.t.) and should exercise patience (Al-Sabr). This is very clearly stated in the Qur'an where Allah (s.w.t.) states that He tests the believers with calamines,l2 and yet in anoffier place He dedares paiience in che face of adversities as a real act of righteousness.l3 Moreover, the Qur'an in order to encourage a figheng spirit in believers who are faced with adversity narrates the story of Prophet Job (Ayyub) (p.b.u.h.), who was 9 Al-Qur'an, 178:33; 6:151. 10 Muslim Abu Al-Husain Muslim Ibn Al- .jjaj, Al-3tatnf Al-Sahih Al-Muslim, V.5, Beirut, Dfir al- Ifiq Al-Jadid^, 1985, pp. 107-108; Mohammed Ibn Isma'il al-Bukhari, .9. i Al-Bukhfiri, Y.8, Beirut, Dr Al-Fir, 1981, p. 148. 11 The offence of armed robbery, rebellion and intentional homicide are puriishabIe with death by virtue of both the Qur'anic text and the hadith, mrhile the =e of adultery and apostasy are putiished on the authority from the Sunnah: see Al-Qur'an, 5:36; 49:9; 2:178; and for the ,hadith see .. *h Al-Bukhfiri, supra, n. 10, V.4, p. 36. See also Mohammed, Ibn Ahmed S-Qurtubi, Al-amG Li-ahkiim Al-Qur'an, V.7, Cairo, Dar Al-Kadb Al-U'rb^, 1967, p. 133, Syed Mahmiid Al-Aliisi, Ruh Al-Masani, V.8 Beirut I.hya Al-Turath Al-Arabi, 1985) pp. 5s55. 12 Al-Qur'an, 2:153. I3 Al-QlIr'an, 2:176. 108 ARAB LAW QUARTERLY afflicted wii the most devastating skin disease, and other misfortune, iIl terms of the loss of property and his most dear and near member of his family, but he was sfll grateful to his Lord where Allah (s.w.t.), described him as, "How excellent in our service he was'',l4 and "a veritable picture of patience for commemoraiion, for all who have llnslelstasl(ling".l5 Among the scholars, Ibn Kathir says that according to an authentic hadith, Prophet Job (Ayyub) was suffering from a chronic skin ailment for 18 years, and his ailmerlt was so horrible that all deserted him except his fait and obedient wife. At times she used to work as a labourer and feed her husband, and at stages she was refused employment on account of her being the spouse of Ayyiib (p.b.u.h.) and was made to sell his Pigtail (dafiah) on two occasions to provide a loaf of bread for her ailing husband.l6 This narrative of the Qur'sn cons a lot of wisdom for the serious mind, from among which two aspects are relevant for our discussion on naercy and sympathy as envisioned by Islam: (1) Man has to exercise utmost patience in the face of adversities in life, no matter how horrible iey may be; (2) The Islamic notion of mercy demands that services be rendered to a long- suffering, ill person. Secondly, the Snnsh of the Prophet (p.b.u.h.) declares that illness and rulamities are blessillgs in disguise. This is evident from his consolement of a patient: "Have no fear, the ailment will prove purifying you from sin if Allah wills it so".l7 This hadith in itself not only enhances one's belief and confidence for his salvation in the hereafter, it also has a great psychological effect in relieving the pam suffered by the ill person. Thirdly, the Islsmic religion not only makes it incumbent upon the person who is related to the patient to take care of him, but it strongly urges believers at large to pay service and spiritually support him by visiting him, and this is what mercy means in ffie Islamic world view. For instance, to render service to one's parents is made next to serving Allah (s.w.t.). This is by virtue of the Qur'anic verse (Al-Isra: 2>24) and many traditions from the Prophet (p.b.u.h.).l8 Again the Qur'an makes if obligatory to extend an helping hand and to fairly 14 Al-Qur'an, 38:4144. 15 Al_Qur'sn) 21 :83-84. 16 I'mad Al-Din Isma'il Ibn Kadir, Qisas al-Anbiya, ed., Al-Syed Hamili, Cairo, Al-Malctab A1- Thaqafi, 1989, pp. 25S262; see also Al-Qbi, supra, n. 11, V.ll, pp. 323-327 and V.15, pp. 20S 216. 17 Yaha Ibn Sharaf Imam Al-Nawawi, Riad Al-Siilihin, eds. Abd. Aziz Ribah and Ahmed Yusuf al- Daqaq, Riad, abah Ak-Dar Al-Islam, 1991, p. 302. 18 See for de .haCth in rcspect of one's dutg to his parents, Mohammed Ibn Yazid Ibn Majah, S2zan Ibn MajaJz, V.2, ed., Mohnmmed Fu'ad Abdul Baqi, Beirut, al-Malrtabah Al-I'lmiyyah, n.d., pp. 1206 1209. 109 MERCY KILLING IN I SLAM treat other blood relations, the neighbours, and humanity at large,l9 even if such assistance affects one's economy and financial standing. For instance, the Qur'an obliges a wealthy person to financially assist the needy and the poor.20 This is undertaken in the form of paying the obligatory poor-due (Al-Zakat), tithe (Al-Ushr), and other forms of benevolent acts of charity (Al- Sadaqat). The Sllnnah also, amongst many other things, declares it a sinner who holds back the sustenance of ie one's whose living depend on him.2l Finally, an ill person is recommended to seek medical treatment through lawful means, and never to resort to medications which facilitate death. For instance, the Prophet (p.b.u.h.) is reported to have said: "Allah (s.w.t.) descends diseases and for each ailment He facilitates cure, therefore you should seek treatment",22 and according to another report, "but never seek a cure from a malignant and hariul substance like poison".23 Al-Shawkani, commenting on the word Khabith as used in this hadith and whose translation is noxious and malignant, holds that this implies that any kind of injurious substance should be regarded as Khabith and must not be prescribed as medicine to heal the ailment.24 In a nutshell, Islnrn never approves the ending of someone's life just on account of him becog ill, handicapped, mentally retarded, or paralysed. Instead, it strongly urges the afflicted person to exercise patience, and strongly exhorts his relatives and the community at large to help relieve his sufferings. What follows derefore is that Islamic law never condones such a killing and regards it as a cre. This brings us on to the Islamic standpoint on the issue. CRIMINAL LIABILITY Islam not only declares human life to be absolutely sanctified, but it also provides incentive for its protection, and safeguards it by comparing the saving of one person's life to saving the whole human race in terms of the greatness of its reward.25 Thus, to violate it is a serious crutne and to preserve it is the best form of righteous conduct in the eyes of the Sharz'a. Therefore, to kill someone deliberately by act or omission because he is suffering from an unbearable pain*ll illness or injury, or because he is too old and has lost all usefulrless and prays for deai, or his illIless is declared incurable, smounts to 19 Al-Qur'fin, 4:36. There are also hadith on the point, see al-Nawawi, supra, n. 17, pp. 125-144. 20 Al-Qur'an, 51:19. 21 This iS narrated by Ibn A'mru, see Al-Nawawi, supra, n. 17, p. 128. 22 It is narrated by Abi Dardi, and is authentic, see Mobmmed Ibn Ali Al-Shawkini, Nail Al-AwEir- Sharh Muntav Al-AkhZar, V.9, Riisat Oedarat Al-Rishuth Al-'Ilmiyah Wal-Ifta, Saudi Arabia, n.d., p. 93. 23 It is narrated by Abi Hurairah, see ibid. 24 Ibid. 25 AS-Qur'an. 110 ARAB LAW QUARTERLY culpable homicide and is plJnishable by Qisas26 unless pardoned by the next of kin of the victim. If such killing occurs unintentionally, he has to pay compensation (Al-Diyah)27 to the relatives of the deceased. Additionally, he would be deprived of any benefit from inheritance, or testamentary disposition if any was made in his favour by the victim.28 He is also required to perform Al-Kaffarah29 (expiation) for the sin that he has committed. Nevertheless, an accused indicted for this offence which is usually committed intentionally but with the motive of alleged genuine sympathy, among other things, may put up the following defences: good motive; consent; and duress. Good motive It is a basic characteristic of the doctrine of crirninal accountability in Islam that the motive (Al-Ba'itu) or (dafi') which implies or instigates a person to intend the commission of a wrongfill act is irrelevant. As Abdul Qader Awdag says to the effect: The Shari'ah from the outset has drawn a clear distinciion between intenrling to commit a wrong and the moiive which impels the criminsl to do such wrong. Thus it does not attach any significance to motive in deterrnining the guilt of the accused or its ensuing penalty. It is immaterial whether a killing is committed by a noble motive such as for vengeance and protection of one's dignity or it is committed with a base motive of killirlg for the sake of steaig.30 One may argue that in the Qur'an we read about the killing of a youth by Khidr, who killed him with the intention of preventing his rebellion against his parents. If it is the case then why is the motive not taken mto account in removing the liability of the accused from this crime?31 26 Qisas is the original pllnishment for deliberate homicide and it can be compounded or remitted for diyah. Its authonty is by ve of the Qur'anic Ayah, 2:178. 27 DiyAh designates the amount of compensation given to the heirs of the victim for wilhl killing if forgiven, and as original penalty for killing by mistake or negligence. The authority for this is by virtue of the Qur'anic verse (Al-Nisa: 92). As to its amount, according to the most accepted view, if it is a wilfill killing, it is 100 camelsX 40 of which are pregnant, or its equivalent price in money, or according to the juridical opinion of scholars in Egypt the equal price of 1,000 dinar which is equivalent to 4,250 grams of gold plus one third of the sarne. But in the case of unintentional killing it is only 100 camels or 1,000 dins-. This is by e of the .hadith on the point and the opinion of Muslim scholars. See for the hadith, SiiJa Ibn Al-Ash'ath Abi Dfiiid, Sunan Ah' Dail, V.3, Darul-pikr, n.d., p. 189; and for the weight of dinar, Wizarat-e-Awqfif e Misr, Al-Fatawa Al-Islaniyyah, 1985, p. 3394; and for the opinion of Muslim jurists, Abdullfih Ibn Ahmad Ibn Qlgtlarnsh Al-muwaffiq, Al-Mughni, V.12, Niro n.d., pp. 919. 28 This is by e of .hadith, see, Mohnmmed Ibn Yazid Ibn Majah, Sunan Ibn Majah, V.2, supra, n. 18, n.d., pp. 383 84; see also A'la'uddin Ibn Masu'ud Al-Kasini, BadA'tY al-Sana'i Fi Tarrib Al-Shfira's7, V.10, Cairo, Matba'ah A1 Imam, n.d., p. 4858. 29 Al-K^ffarah according to the preferred new by the junst constitutes performance of ie ntual act of fasiing for two months successively, see for details, A'li Ibn Mohaned Al-Miwardi, Al-Sun al- Kubra ed. Mahmfid Masterji, V.16, Beirut, Dar Al-Fikr, 1994, pp. 316-319. 30 Abdul-Qadir A'wdah, Al- Tashir' Al-gina' Al-Islami, V. 1, Beirut, Dar Al-Katib Al-Arabi, n.d., p. 411. 31 Al-Qur'ax., 18:6982. MERCY KILLING IN ISLAM lll This will not hold good because the incident in question belonged to a category of mysterious conduct which was specially gifted by Allah (s.w.t.) to Khidr. It is held that it was nothing but a special implementation of Allah's command, because the verse 65 of Al-Kahf states that KBidr was given a special kind of knowledge from God.32 Therefore, the defence of good motive does not absolve the culprit from criminal liability on the issue. Consent of the victim or his guardian Here the culprit, if he is a relative, contends that the deceased either orally or in writing authorised him that in the event of his becoming too old or irrecoverably ill, to assist his death in a peacefill manner and by the least painfill means, or, in the case of a medical doctor, he may contend that he has stopped providing medical services to his patient when it becomes clearly apparent that he cannot be cured, where such has been done with the express consent from the relatives or by virtue of the will (Wasfyyah) of the deceased himself. Mercy killing in the aforesaid situations involves two distinct issues: (1) It occurs when a person in charge of caring for an ill or elderly person puts such life to death or refuses to attend the person longer; (2) It occurs when a medical officer stops the alministration of drugs or of some injection to a person whose illuess in all probability is irlcurabIe. In the first case, it is generally held that consent of the deceased does not exculpate the offender from the liability, since human life is of the nature of a thmg upon which man has no alienable right.33 That is why suicide is a grave sinful act and prohibited in Islam,34 therefore if someone is prohibited from ending his own life at his own instance, his consent to allow another to do the same is null and void.35 However, there is some discussion among Muslim jurists on the issue when chey address the right of pardon by the relatives of the victim in advance. In the case of consent by the victim the fuqaha (jurists) advance the following views. Al-Sarakhsi, representing the Hanafi view, holds, "pardon by ie vicrtim after receiving the injuries from ie ensuing result is void on the principle of juridical 32 Ahmed Muwafi, Min Al-Fiqh al-gina'i Al-Mugaran Bain Al-Shari'ah Wal-Qanz, Cairo, A.M. Al-A'la Lil-Shu'un Al-Islami, 1965, pp. 22>223. 33 In de Qur'an there are several verses which clearly state that man has no proprietary right over his own life, see Al-Qur'an, 2:258; 3:156; 23:81; 57:2. 34 Suicide is explicitly prohibited by tbe Al-Qur'an, Al-Niea (4):29. 35 A similar lriew has been expressed by Abu Zahrah and Jalaluddin Amri, see Mohammed Ahmed Abu Zahrah, Al-anmah, Dar al-Fikr Al-Arabi, 1973, p. 536; Jallfi-luddin Amri, "Suicide or temiination of life", translated by S.A.H. Rizeri, in Islamic and Comparative Law Quarterly, V.7, 1987, p. 142. 112 ARAB LAT QUARTERLY deduciion (Al-Qios).36 The reason is that it is the rigl:lt of the heirs to pardon or demand Qisas afeer the vicum's deai. Therefore, the viciim's pardon ill advance has the force of nullificaiion of a right which has not become due and thus void. However, on the principle of junstic preference (Al-Istiksan)37 it is valid because the legal heirs are entocled to pardon by way of sllccession from che vi.38 What iis statement means is that Hies view tixe pardon by the vici before his dead as consent (Al-IdXm), which in turn is a 4agaiing ground for dropping Qisas. It is furier contenrlesl that sud consent is a sufficient grollnd to consiinlte doubt which is the remover of Qxwas plxnishment as a principle in criminkal law. As to wheier diyah is due or not, however, Haes are divided. Al-Dassuqi, representing the Maliki stand, says, "if a person before diconon of a deadly blow says to another, I exonerate you from liability if you kill me, it has no validity, since he has exempted ie accused before such right is due to him".39 But according to a famous opinion of the school dWyah would be due.40 Al-Sharbini of the Shafi'e school holds, "on this issue there are two opzions within our school; the blood of the vi is hadar (with no recompense) because it is his right and he pardoned it. Qisas is dropped because of doubt created by oche victim's consent but diyah is due".41 Al-Bahuti of t}le Hanbali school says, C'if arl injured person pardons his assailant from the consequent death resulting from dat injury, the offender is not under any liability whatsoever, because the vi has rightfully forgiven him aSer its effectilre cause was present at his body".42 From the above statements by representative jurists from che four Sunni schools, it is clear at some, like the Mais and Hanafies (analogically), uphold the view that man has no alienable right over his life, t}us his pardon made m advance (Al-Afw ma tagaddam) does not exonerate the culprit from liability. Others like Hanabilah and some Shafi'es hold the contrary view, while the majonty take a middle-course approach on the golden rule, that when dere is difficulty in applymg the Sharha ruling on a point involving Qisas cases, the doubt would emerge and the oripal penalty is dropped and an altemaiive penalty becomes due. It must be remembered though that we made a reference to the opinion by 36 Al-Qias is the applicsiion of a Sharifa ruling on a new problem because the latter has the same eSective cause as the former. Sce Mahammed A.hsed Abu 7>hr76, Usul Al-Fiqh, Dar Al-Fikr A1- Arabi, n.d., p. 227. 37 Al-Isthsan is a jstic prefercnce in departalre Som a Sharha ruling to another ruling because the latter is stronger m jus6ficaiion. See id., p. 262. 38 Abu Bakz Mohmed Ibn Abi Ashal Al-Sarakhsi, Al-Mabd4, V.26, Beirut, Dar Al-ma'ripah, 1986, p. 153. 39 Shams Al-Din MAnmnaed A'rafEh Al-Dassiqiv .Sshiyah Al-Dassi iA' Sharh Al-Kabir, V.4, Dar Al-Ihya Al-Kutub Al-Arabi, n.d., p. 240. 40 AwdS, op. at., V.2, p. 84. 41 Mohammed Al-Khai.ib Al-Sharb, Al-Mughni Al-Muhtaj, V.4, Dar Al-Fikr, n.d., p. 50; see also Ya.hya Ibn Sharaf Imam Al-Nawawi, MinhAj Al-T.alibin Wa 'Umdzih Al-Masftin, Dar Ihya al-Kutub Al-Arabiyyah, n.d., p. 114; Mohammh Ibn Idns Iniam Al-Shifi'i, Al-Unpn, V.6, n.p., n.d., pp. 77-78. 42 Min Ibn Yiinus Al-B;ihAi, Kashshaf Al-!2ina' A'lA Matn Al-Iqra', V.5, Dar Al-Fikz, 1982, p. 546; see silso, Ibn QX#1amsh, op. cit., V.12, pp. 589 90. 113 MERCY RILLING IN ISLAM Musl jurists on the issue, and it is essential to note that the issue at hand is inherently distinct to the situation as addressed by the great jurists. They were addressing a situadon where a victim after receisting the injury due to certain considerations such as, perhaps, the offender happens to be a blood relaiive, forgives him, or maybe because he happens to be the only bread er for xche family. In this situaton, to save him from the death penalty is of great importatlce for the welfare of the surviving members of de bereaved family. But here we are dealing with an issue where there is a serious clash between the most fMdamental principle of Islam, the right to life, which is among dle most basic of the objectives of de Shan'a to preserve, the duly of the relaiives and the medical profession, to extend it and improve its quality, and the fact chat Allah (s.w.t.) is ie master of man's life. It is also to be noted that m Islam man's right to life cannot be claimed negatively, i.e. the right to die. This is very clear from e prohibiiion of suicide in Islam by virtue of the Qur'an (al-Nisa:29), and the Sllrosh of the Prophet, which contains tht report of two incidents where two companions on separate occasions received serious mfuries thich were so painfill that they lost foriitude and killed chemselves. The Prophet (p.b.u.h.) remarked that Allah (s.w.t.) in respect of the act by one of them says, ';My servant hastened himself to me and so I made paradise unlawful for him",43 and in respect of another who was a great warrior, the Prophet (p.b.u.h) himself declared, C'despite the great feat displayed by this person that smgle act by him wiped away all his services in the cause of Allah and doomed him tO hell".44 Therefore, these textual authorities are quite explicit on the issue and no force of other juristic reasonirlg can overrule them. Thus the position is iat man is not master of his own life, hence his consent is of no consequence. Indeed, the view taken by the Maliki jurists is preferred orl the ground of its confomuty with the basic statemerlt about human life. The issue now is whether if such consent is given by the relative to a ffiird party or to a medical practitioner, would at be valid, since e Qur'an (A1- Baqarah:178) has already provided them w;* ie auiority to opt either for 52isas or demand dWyah instead or completely forego their right granlitously. On iis issue also chere are two opinions by the jurists. It is held chat it is not valid on the basis of analogy (Al-Oias) since the right of pardon presupposes the death of the deceased, while orl junstic preference it is valid merely because the effective cause of death of the deceased (the inillry) is present at dat time. This posiison is basically expressed by two noted Hanafi jurists: Al-Sarakhsi45 and A1- Kasani.46 It contains both the rigidity and flexibility but in both cases it is a rery instructive statement of the law. If de view of invalidity is upheld, then it prevents evil-doers and culprits from 43 See Al-Tirmidhi, Sunan Al-Tinmdhi, V.2, Beirut Al-Makt:abah Al-Islaniiyyah, pp. 26>261. 44 Al-Bukhan, op. at., V.5 p. 169. 45 Al-Sarakhsi, op. cgt., p. 154. 46 Al-Kasani, ap. cit.) p. 4650. 114 ARAB LAW QUARTERLY abusing their position by ending the life of the ill, elderly, or even a healthy person's life by putting their consent into writing in order to achieve relief from the trouble of caring for them, or to gain access to their estate and wealth by way of inheritance, and that is why Islam disentitles the killer from the right to inherit from his victim if he is related to him. The opinion of validity of such consent, on the other hand, provides a soluiion to the problem of the most difficult and genU1ne cases of those wholly-paralysed ill persons: persons whose life-span is only prolonged by life-saving devices, such as respirators, paremakers, and other sophisticated apparatus, and it is agreed by all the medical specialists that such a person's state of illness is caused either because of brain-death or irreversible coma. But it should be remembered that even in these cases the plea of consent must be restrictively allowed, in order to prevent its abuse. (1) The absence of a heart beat and absence of breathing should not be a ground for declaring a person irrecoverable, but only when a person has lost all function of his body47 and has been like this for such a time as would be normal for a person to recover. (2) Such an ill person should not be put to death by the administering of some lethal injection, but only by the removal of life-saving apparatus, or by the stopping of a drug, i.e. it should not be done by a positive act but by omission (bil-Tark) only. (3) Once this requirement is met the consent would be operational and all other conditions48 of pardoning (Al-Afw) from Qisas come into effect. It can be upon diyah or gratuitous provided all the legal heirs are unanimous. However, it should be noted that even then the medical doctor has to perform Al-Kaffarah (expiation), since he can escape legal liability because of permission but not the sin of causing the loss of life, whose destruction is prohibited. Duress (Al-Ikrfih) The culprit who happens to be the spouse or other (closely) related person to the deceased may contend that he killed the victim because he was under great pressure and mental distress due to a long period of attendiIlg the patient, or in legal terminology that he did it under incorporeal duress (Al-Ikrah al-Ma'naunD.49 It is agreed by che majority of Muslim jurists that in the crime of killing, duress, even if it amounts to a physical threat to one's own life and limb (Al-I*rah), does 47 Todlay with the enormous advPances in medical science it is possible to sustain the funcdon of both hean and lungs even where there is a total loss of brain actinty; therefore these factors must be taken into account when liability for mercy killing is at issue. 48 See for details, Ibn Qlrlesmsh, op. cit., V.ll, pp. 58S590. 49 Duress (Al-Ikrah) is of two types: compelling duress (Al-Ikrah Mulji') and non-compelling duress (Al-Ikrah Al-Nafi.s). According to Al-Saraldsi and Bazdawi, any form of threat which is not material or physical is called Al- Ikrah Al-Adkibi or Ma'nzn. For instance, to threaten someone to do some act by imprisoning his spouse amounts to Al-Ikrah al-Ma'nau)i, see Abu Zahrah, op. cit., p. 512. MERCY KILLING IN ISLAM 115 not exonerate such a person from liability.50 Mental distress alone, where there is physical threat (Al-Ikrah al-Adabz) has no significance on the issue. Indeed, mercy killing is a serious crime, and no one is allowed to resort to it under any pretext. It is pllnishable in the same way as a crime of deliberate homicide. No plea of mercy, duress, or consent can justify or remove its * - crimlnallty. However, the challenge of the tremendous advancements in the field of medical science, whereby a person who is in a state of permanent coma, and his heart-beat or breathing can be sustained for so long, finds its answer in the opinion which maintains that the liability of removing such device is mitigated by the consent of the legal heirs. Nevertheless, it still remains to be a subject of dispute because: to prolong a person's breathing is analogous to sustaining his life math food or drink; and the rejection of the view by the Hanbalis and Shafi'e to the legality of the consent on the ground of their non-acceptability of IstiAsan. 50 The Malikis, H^nbalis and Shafies except the hnafies do not exclude the offender from liability even if he has committed it under the threat of death. See Ibn Qll<1atTlth, op. cit., V. 11, pp. 451-56; Al- Kasani, op. cit., p. 4630; al-Dassiiqi, op. cit., p. 244; Ibrahim Ibn Ali Al-Shirazi, Al-Muhadhffiib, V.2, Dar Al-Fikr, n.d., p. 77.