‘NECESSITY’ IN CRIMINAL AND MEDICAL JURISPRUDENCE: A COMPARISON OF COMMON LAW AND ISLAMIC LAW CONCEPTS

Abstract

The jurisprudential concept of ‘necessity,’ which had its origins in the criminal aspects of both Common Law and Islamic Law, is becoming increasingly important in medical law, especially in relation to organ transplantation, therapeutic cloning, and in vitro fertilisation techniques. Criminal aspects remain closely related to the further concept of ‘duress’ (vitiation of free will) and civil/medical aspects to that of ‘proportionality’ (that the deviation from a norm must be related to the benefit obtained). This paper attempts to examine attitudes of Common Law and Islamic Law to these issues, after some preliminary remarks as to the difficulties and dangers of generalisation. However it may be confidently affirmed that the concepts of necessity and proportionality are well embedded in both systems. Notably also, in both systems there is an abhorrence of commercial transactions involving body parts. There are divergences however - Common Law, broadly, allows any sort of transplantation, for example for cosmetic reasons, whereas as Islam regards this as essential only for the saving of life. In respect of therapeutic cloning there appears to be little divergence of views. In respect of in vitro fertilization, in all Common Law jurisdictions non-spousal sperm donors, anonymous or otherwise, are freely available, and may indeed be paid, whereas in Islam the spousal father must also be the biological father. It is a novelty of the modern world, however, that in almost all countries, even those with a majority Muslim population (like Malaysia) secular law allows freedom of choice so that involvement in these modern medical techniques devolves on personal morality.