Islam, mental health and law: a general overview
Abstract
The etymological root of the word Shari’ah can
be traced back to the harsh life in the desert and it means “pathway to
be followed” or “path to the water hole,” since the water was the basic
element and preserver of life. At the dawn of its historical course and
at its moral and ethical core, Islam introduced many interesting and
innovative beliefs concerning the
mentally ill. Islam underlines the
moral necessity for the protection and care of the vulnerable
individuals, as dictated by God himself. On the other hand, beliefs
about “possession” and stigmatization influence the peoples’ attitude
against and apprehension of mental disorders. This strange admixture is
reflected upon the status of the mental health services and
corresponding legislation found in the different countries of the
Islamic world.
Background
In Medina, he founded the first community of his followers. The
followers of Islam are called Muslims and they believe that the orders
of their religion apply in every field of their life and they represent a
complete life model.
Muslims are the majority in 56 countries, and it is estimated that they
represent the one-fifth of the world population (more than 1.2
billions) .
Legislation in the Islamic law
Shari’ah is applied in countries in the Middle East, Africa, and Asia.
Among these, Saudi Arabia applies its purest form. An interesting
phenomenon, mainly resulting from the colonization of different parts of
the globe by Western countries, is the coexistence within the same
legal ambit of both secular and Islamic law .
In the beginning, the colonizing countries showed no interest in
interfering or altering the local customary and tribal laws,
unless they
hindered their economic goals and expansionism.
But later in an effort to expand the implementation of their law on the
indigenous populations, they tried to incorporate the
customary—religious laws in a comprehensive legal system by three main
methods: “the codification of customary or religious law; the
application by state courts of unwritten customary or religious law in a
fashion analogous to the common law and the creation or recognitions of
informal or customary courts run by local leaders”.
Nigeria, a former British colony which became an independent federation
in 1960, is a typical example of such a state.
The northern part of the
country is inhabited mostly by Muslims, while in the southern part the
majority of the population is Christian. In the south, the legal system
is based on the Anglo-Saxon common law, while in the north, a dual
judicial system, consisting of both common and Islamic law, is applied.
Unfortunately, the country is devastated by clashes, fueled by
religious hatred. In Egypt, Shari’ah controls specific areas of social
life, such as marriage, inheritance, property rights, and applies to
both Muslim and non-Muslim populations. As far as other issues are
concerned, the common law is applied Dual judicial systems can be found even in EU member states. For almost
one century, in the north-east area of Greece called Thrace, the Muslim
citizens have the right to settle their legal matters, apart from the
Greek civil courts, with the help of Islamic judges, the muftis .
The mufti in Greece has a tripartite role being an Islamic legal
scholar, an Islamic judge (qâdi), and the religious leader of the Muslim
citizens
The
legislation is formed by the scripts which are called Naṣṣ, and has a
divine and not a human origin. The scripts of the Islamic law are
The length of the Suwar is uneven, with the
shortest one (Al-Kawthar) containing only three verses while the longest
(Al-Baqara) has 286 verses. The Suwar are divided into Meccan (87) or
Medinan (27), depending on the location of revelation, that is before or
after Hijra The Qur’an contains about 500 commands. Since Qur’an is the revelation
of God’s will, these commands are to be strictly followed, without any
hesitation or dispute. Some of these lines-commands have a direct and
specific meaning, while others have a vaguer context.
The
clarification
and the adaptation of the commands deriving from Qur’an and Hadith to
the contemporary social, political, and historical conditions are called
ijtihad. Ijtihad, practiced by the legal scholars of Islam, is based on
strictly defined orders which are sources of law as well The most
important of them are: (1) The Ijmā‛, which means legal consensus and
(2) The Qiyās, which means analogy.
Hadith’s
scripts, in contrast to those of the Qur’an, do not have the same
stability, uniformity, and importance. From these scripts, the most
important and highly accepted ones are called Sunnah. There are six
recognized collections of Sunnah, which were written in the ninth and
tenth century A.D, during the Sahih period
With
historical evolution, different prominent Islamic legal scholars
developed different models of interpreting and applying the divine law,
as depicted from the sacred scripts. These different approaches,
collectively constituting the Islamic jurisprudence or Fiqh, finally
evolved in the different schools or Maḏāhib of the Islamic law. In the
early years of Islam, there were many Maḏāhib, but eventually they were
consolidated to very few. The Sunnis have five Maḏāhib: (1) Mālikī, (2)
Shāfi‛I, (3) Ḥanbalī, (4) Ḥanafī, and (5) Ẓāhirī, while the Shiites have
three: (1) Ja’fari, (2) Zaydi, and (3) Ismaili
Mental health in the Islamic world
The
Islamic world, in its early years, had a pioneering approach concerning
mental health and psychiatry. The first psychiatric hospitals were
founded in Arabic countriesBaghdad 705 A.D (during the kingship of the
caliph El Waleed ibn Abdel
Malek), Cairo 800 A.D, and Damascus 1270 A.D, whereas the first
psychiatric asylum in the West Europe, the Bethlem Hospital in London,
was founded in the thirteenth century Important figures of the Arabic
medicine are Razis (860–932 A.D) and Avicennas (980–1037 A.D)
They have rich authoritative work as for example the Kitab al-Hawi and
the Al-Qanun fi al-tibb, which are multivolume medical books. They
fought off superstition, which had already dominated the Christian
world they adopted the Hippocratic organic psychiatry and they applied
psychological methods of therapy
Currently,
there are more than 50 Islamic states, and therefore, it is difficult
to simply describe the mental health services in these countries. Some
of them provide advanced therapies and they have a modern legal framework (Sudan 1998, Jordan 2002, Oman
1992), while in some others, the therapy of the psychiatric patients
includes cautery,
exorcism,
and physical violence .
Some of the Arabic countries either don’t have a specific legislation
for mental health (Yemen, Saudi Arabia, United Arab Emirates, Bahrain)
or the corresponding legal framework is out of date (Egypt 1944, Morocco
1959, Syria 1981) They do not have specialized training in forensic
psychiatry and do not possess organized forensic psychiatric serviceThe
notion that mental disorder has a daemonological or divine origin is
widespread in the Islamic world
Many times people seek help from religious therapists, who use lines
from the Qur’an as treatment. The social impact and influence of these
therapists is so important that in some countries they have are
incorporated in the national health care system
Under
the Islamic law, the therapeutic bond between a patient and a doctor is
considered sacred. According to Shari’ah, human justice cannot force a
doctor to reveal information entrusted to him/her by a patient. Some
Islamic legal scholars argue that lying into a court in order to
preserve the confidentiality of the therapeutic relationship cannot be
considered a sin In any case, in Muslim trials, only the views and the opinions of Muslim psychiatrists are accepted
Despite
the importance that the Islamic law attributes to the confidentiality
of the therapeutic bond, it is overridden in cases of suicide
attemptsSuicide is considered a very big sin, a type of homicide. In the
West,
during the middle Ages, the term that was used for referring to suicide
was “self murder”, and only recently replaced by “suicide” Muslim
religion strictly forbids it and the divine law considers suicide a very
big crime
Direct consequences of this perception are the scarce recording of
suicide attempts as such, since this could lead to the prosecution of
the patient, and also that the rates of suicide and attempted suicides
cannot be reliably estimated in Muslim countries.
Apart from suicide, other forbidden actions (similarly to Judaism and
Christianity) include homosexuality, extramarital affairs, prostitution,
and (unlike Judaism and Christianity) alcohol consumption
Forensic psychiatry and Islamic law
Mens rea & criminal responsibility
The concept of mens rea,
the guilty intention, is fully accepted in the Islamic law. There is no
crime if there is no criminal intention. The significance of the
subjective element of a criminal action (and not only of the result of
this action) gradually emerged in the Western Europe through the
“publication” of the criminal law, which reached its climax during
Charlemagne’s kingship (768–814 A.D) In terms of the criminal’s intention, the criminal actions are divided into
(1) ‛Amd, intentional, and (2) Khaṭā’, unintentional. There is also a
third category which applies only in cases of homicide: (3) the Shibh
al-‘amd that is the quasi-intentional homicide. All homicidal acts are
punishable by death. But if the victim’s family decides to accept
compensation and not to punish the murderer, then the latter is set
free, unless there is a decision on behalf of the authorities for an
additional punishment. On the contrary, if the family does not accept
the compensation, then the judicial system cannot override this
decision.
According to Shari‛ah, the lunatics (Majinum which also
means teacher, wizard or prophet) have impaired judgment and will and so
they cannot be held accountable for their actions. Insanity in the
Arabic language is called Junūn and its etymology means “hidden” or
“invisible.” This etymology derives from the belief that insanity-mental
disorder is caused by the demonic possession of the patient from
“invisible” or “hidden” spirits (jinn). In Arabic, the word “jinn” has
many meanings, like shelter, shield, screen, fetus, and madness.
According to the Islamic religion, the “jinn” is a supernatural spirit,
which can take a human or animal form and can be either good or bad
The demonological apprehension of mental disorder can be traced in many
cultural settings: the archaic English word ilfig meant “mad” but also
“affected by the elves,” thus reflecting the common belief of that time
that madness was caused by supernatural deities
Insanity
There
is tripartite classification of insanity in the Islamic law: (a)
absolute or continuous, (b) intermittent, and (c) partial. In the case
of intermittent insanity, it has to be proven that the mental disorder
was active at the time of the criminal act for the defendant to be found
not guilty by reason of insanity. Otherwise, if the disorder was in
remission and not active, the perpetrator is fully responsible for his
acts The similarity between the concepts of lucida intervalla or intermission of the Roman lawand photeinon diallimaton (“bright interims”) of the Byzantine law is obvious. As far as criminal responsibility is concerned, the Islamic
law recognizes two other categories, similar to insanity: (1) the
Dahish, which means “sudden confusion” or “perplexity” and (2) the
‛Atah, which means mental retardation or dementia
Involuntary admission
A
pivotal issue addressed in the Islamic law, lying in the interface
between law and psychiatry, is the concept of involuntary admission of
mental health patients. According to the principle of Al-Hajjer, the
state can undertake the financial management of a person’s fortune, if
he does not manage it “properly.” By extending the application of this
legal procedure, Shari‛ah accepts the necessity of involuntary
hospitalization. Τhis necessity lies on the patient’s “need for therapy”
(including patients with substance use disorders) and not on the
criterion of dangerousness .The corresponding legislation in the European Union countries is not
homogenous: some countries use the criterion of dangerousness (Austria,
Belgium, France, Luxembourg), while others use the combination of two
criteria: dangerousness and need for therapy (Denmark, Finland, Greece,
Ireland, Portugal, United Kingdom). Only three EU countries use
exclusively the criterion of the need for therapy: Italy, Spain, and
Sweden
Saturday, April 4, 2020
Islam, mental health and law: a general overview
Islam
is the dominant religion in about 56 countries around the globe, and
has more than 1.2 billion followers. Islam represents a holistic way of
life, and according to a large proportion of its followers, the Islamic
law or Shari’ah should prevail over secular law and should be
implemented as state law.
Islam
is a monotheistic religion, and its founder is the prophet Muhammad,
who was born in 570 A.D. Muhammad was a merchant who meditated in a
desolate cave near Mecca, when at the age of forty he started listening
to God’s speech (Allah), which was brought to him by Archangel Gabriel.
This kept on for 23 years, until his death in 632 A.D. Due to the fear
of political prosecution he moved from Mecca to Medina in 622 A.D. This
event (hijra) marks the beginning of the Islamic calendar, which
consists of 12 lunar months; it has 354 days and is not related to
seasons .
The
Islamic law or Shari’ah or Qānūn-e Islāmī started taking shape by Abu
Hanifah (699–767 A.D) through the need for social reorganization, which
should be based in the concept of solidarity and sympathy against the
corrupted governing of Umayyad (661–750 A.D) [. Shari’ah is an archaic
Arabic word meaning “pathway to be followed”] or “path to the water hole
The
three basic trends for explaining the mental disorder, from antiquity
till today, are(a) The Organic approach, based on biology and
pathophysiology, (b) the
Psychological which examines and analyzes the intrapsychic processes
and conflicts and (c) the Magical or Sacred which apprehends insanity
through a supernatural and divine scope. These three components in the
Islamic world are in a dynamic and ever changing balance. A balance
between prejudice and social stigmatization on one hand and intense
religious and moral commitment to support the weak on the other
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