Islam, mental health and law: a general overview
Abstract
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.
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.
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
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 .
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
Mental health in the Islamic world
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
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
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
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 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
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
-
1.
The Aḥkām of Qur’an (Koran), which is divided into 114 Suwar (chapters) and consists of about 6236Ᾱyāt (verses).
-
2.
Hadith, which is the record of Muhammad’s life.
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
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
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
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
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