ISLAMIC LEGAL MAXIMS (CTU 694)

COSMETIC SURGERY: AN APPRAISAL FOR THE MAQASID

SYARIYYAH & QAWAID FIQHIYYAH PERSPECTIVE

GROUP MEMBERS STUDENT ID

1. HASRUL HAFIZUDDIN B HASSIM 2009469702

2. MUHAMMAD ARIFFAIZUDDIN B ROSSELAN 2009470448

3. NUR ZAINATUL FEKEHAH BT ABU BAKAR 2009227552

4. NURASYIKIN BT ABU KHORI 2009673944

5. SITI KHATIJAH BT ZAKARIA 2009449142

LECTURER: DR. FADILAH BT ABD RAHMAN

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TABLE OF CONTENT

CONTENT

PAGE

TABLE OF CONTENT

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1.0 INTRODUCTION

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2.0 DISCUSSION

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2.1 Maqasid Al-Syari‟yyah 4

2.2 Qawa‟id Fiqhiyyah

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3.0 CONCLUSION

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4.0 REFERENCES

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1.0 INTRODUCTION

Plastic surgery is the surgical speciality concerned with the treatment of structural

deformity and disfigurement. It is also involved with the enhancement of the appearance

of a person (beauty). There are two types of plastic surgery. Cosmetic surgery is

performed to reshape normal structures of the body to improve the person‟s appearance,

like facelifts (a medical operation in which the skin of a person‟s face is tightened in

order to make him or her look younger) and attempts to reverse the signs of aging, and

surgery of breasts (to increase or decrease the size of the breasts).

The second type is reconstructive surgery. It is performed on abnormal structures of the

body caused by congenital defects (defects that exist since or before birth),

developmental abnormalities, injuries (trauma), infection, tumours (a mass of cells

growing in or on a part of the body where they should not, usually causing medical

problems), or diseases. Congenital faults include abnormally turned-out lips, split lips,

twisted fingers or toes. Faults that result form illnesses include the scars left by leprosy or

other skin diseases, or scars caused by accidents and burns (Haque, 2010).

According to Singh (2010), the plastic surgery can be divided into two types. The first

type is the disease correcting local plastic surgery or also known as local surgery. This is

a kind of surgery in which an individual undergoes local plastic surgery for correcting

defects, anomalies, or improving skin texture. Local plastic surgery techniques can be

applied for possibly three different purposes. It is useful to correct by-birth anomalies, to

correct the defects that are result of some accident, and to correct the anomalies that have

developed over the years. Examples of disease correcting local plastic surgery would be

surgery for correcting jaw and teeth structure, nose structure, chin, forehead, and eyelids,

etc. Local plastic surgery is also aimed at reshaping and restructuring facial features to

improve the aesthetics. This type of local surgery leads to varying amount of changes in

the geometric distance between facial features but the overall texture and appearance may

look similar to the original face. However, any of the local plastic surgery procedures

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may be performed in conjunction with one or more such procedures and amalgamate of

such procedures may result in a fairly distinct face when compared to the original face.

The second type of surgery is the plastic surgery for reconstructing complete facial

structure or also known as global surgery. Apart from local surgery, plastic surgery can

be performed to completely change the facial structure which is known as a full face lift.

Global plastic surgery is recommended for cases where functional damage has to be

cured such as patients with fatal burns or trauma. Note that global plastic surgery is

primarily aimed at reconstructing the features to cure some functional damage rather than

to improve the aesthetics. In this type of surgery, the appearance, texture, and facial

features of an individual are reconstructed to resemble the normal human face but are

usually not the same as the original face. Furthermore, global plastic surgery may also be

used to entirely change the face appearance, skin texture, and other facial geometries

making it arduous for any face recognition system to recognize faces before and after

surgery. Therefore, it can also be misused by criminals or individuals who want to remain

elusive from law enforcement and pose a great threat to society despite all the security

mechanisms in place.

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2.0 DISCUSSION

2.1 MAQASID AL-SYARI’YYAH

Ibn Ashur defines Maqasid as the purpose, objective, principles, intent, goal and end.

Therefore, Maqasid al-syari‟yyah is the purposes and objectives behind Islamic legal

rulings. The purpose of syariah can be categorized into two purposes. The primary

purposes of the syariah are to secure the interests of man in the hereafter and the

secondary purposes of the syariah is to preserve and protect human life on this world. Al-

Maqasid is divided into three categories according to the degree of their importance, in

descending order.

First divisions are daruriyyat which are essential or necessary elements on those which

the lives of human being depend, and without which the existence of an individual or

society becomes impossible. There are five elements of daruriyyat; protection and

preservation of faith, protection and preservation of life, protection and preservation of

intellect, protection and preservation of lineage, and protection of property. Second

divisions are hajiyyat which are benefits which seeks to remove severity and hardship

that do not pose a threat to the very survival of normal order (Muhammad Hashim, 2010

). Lastly, tahsiniyyat which are refers to interests whose realization leads to improvement

and the attainement of that which is desirable.

i. Protection and preservation of faith

Cosmetic surgery which are done to change one‟s face to make it prettier as the way

he/she want it will violates the purpose of preserving the religion. We try to change

Allah creation by doing so. Below is the surah to support how Allah S.W.T has

already created human being in the best and beautiful way (Atiyeh et al., 2008). All

we need to do is accept who we are. There are others people who are unfortunates, we

should be grateful that we have no deformity.

“Indeed, We created the human being in the best stature” (At-Tin, 95:3)

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For example, plastic surgery is usually done to change some part of the body to make

it more beautiful. There is also plastic surgery to change men‟s face into woman or

even surgery to transform men into a woman. This kind of act is totally contrary to

Islamic teaching. Allah S.W.T has already stated in Al-Quran:

“And I will mislead them, and I will arouse in them (sinful) desires, and I will

command them so they will slit the ears of cattle, and I will command them so they

will change the creation of Allah. And whoever takes Satan as an ally instead of Allah

has certainly sustained a clear loss” (An-Nisa‟: 119).

Whereas, hadith that prohibits the imitation of opposite sex as below:

Sayyidina Abdullah Ibn Abbas relates, that the Messenger of Allah (Allah bless him

and give him peace) said: “Cursed those men who imitate woman and those woman

imitates men” (Sahih al-Bukhari).

ii. Protection and preservation of life

Cosmetic surgery which are done to protect someone life will fulfill the purpose of

the second elements in daruriyyat. For example, someone who has skin disease is

allowed to undergo plastic surgery to treat the disease. It is afraid, their condition will

become worst if the surgery is not done. There are many hadith which encourages and

urge Muslim to seek for the treatment for any disease.

Usamah Ibn Shuraik narrated:

“I came to the Prophet (p.b.u.h) and found him with his companions. I greeted them

and sat down. Then, some Bedouins came from various places. They asked him: “O

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Allah’s Messenger! Should we seek medical treatment for our illnesses?” He replied:

“Yes, you should six medical treatment, because Allah S.W.T, the Exalted has let no

disease exist without providing for its cure, except for one ailment, namely old age”

(Reported by Ahmad and six sunnan).

iii. Protection and preservation of lineage

If the cosmetic surgery is carried out to beautification in order to find a marriage

partner, it can fulfill the purpose of preserving the lineage. Thus, this will be the good

thing about cosmetic surgery. For example, a man has some scars from accident. This

scar might be the reason when there is no woman attracted to him and accept his

proposal. Thus, he did the cosmetic surgery to eliminate the scars. For this reason, he

is allowed to do so. Marriage is the sunnah of Rasulallah S.A.W. The prophet has

mentioned about the criteria for selecting a marriage partner, which is those who are

best in religion and character as hadith below:

“A woman may be married for four reasons: for her property, for her rank, for her

beauty, and for her religion, so marry the one who is the best in religion and

character.” (Bukhari and Muslim).

Thus, the one‟s intention to get rid of the scar for eample to get married is not fault.

However, woman especially, cannot do plastic surgery whatsoever to get men

intention or to seduce them.

iv. Protection of property

Expensive cosmetic surgery will violates the purpose of preserving the wealth or

property. Allah S.W.T does not like when Muslim spending so much money for

something that is unnecessary. For example, someone wants to do liposuction

because he/she does not like their current figure. They have the thought that the small

size and slim body is beautiful and healthy. Thus, they tend to do liposuction so that

all their fat will be removed and they will become pretty. This act is unnecessary

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actually because the important is for someone to have healthy body, no matter they

have big size body or small and slim body.

“And give the relative his right, and (also) the poor and the traveler, and do not spend

wastefully” (Al-Isra‟: 26).

“Indeed, the wasteful are the brothers of the devils, and ever has Satan been to his

Lord ungrateful” (Al-Isra‟:27).

Below are the general regulations and conditions for undergoing plastic surgery (The

International Islamic Fiqh Academy (IIFA), 2007):

1. Surgery should achieve a recognized benefit in Shari`ah, such as

restoring function, correcting a defect or returning the form to a normal

state.

2. Surgery should not result in harm exceeding the anticipated benefit,

and this matter should be decided by trustworthy specialists.

3. A qualified, specialized physician should perform the surgery; and if

not, the consequences will be his/her responsibility.

4. The surgical operation should be performed with the permission of the

patient (who has requested the surgery).

5. The specialized plastic surgeon should make the patient (who will

undergo the operation) fully aware of the risks and complications, both

expected and potential, of undergoing the operation.

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6. There is no other form of treatment that will be less harmful and

invasive for the body than surgery.

7. There should be no violation of textual evidence in Shari`ah, such as the

Prophet‟s saying (peace and blessings be upon him) in the hadith that

was narrated by `Abdullah ibn Mas`ud, “Allah has cursed women who

tattoo or have themselves tattooed, who pluck eyebrows or have them

plucked, and women who separate their front teeth for beauty, altering

what Allah has created.” (Al-Bukhari) And, the hadith that was

narrated by Ibn `Abbas, “The woman who supplies false hair and the

one who asks for it, the woman who pluck eyebrows or have them

plucked, the woman who tattoos and the one who has it done where

there is no disease to justify it have been cursed.” (Abu Dawud) In

addition there are the hadiths in which the Prophet (peace and blessings

be upon him) forbade women from imitating men, and men from

imitating women as well as the texts, which prohibit the imitation of

other non-Muslim peoples or those known for immoral and sinful

behavior.

8. The rules for seeking medical treatment should be maintained, i.e. the

rules of avoiding seclusion of a man and a woman (khulwah), the rules

concerned with exposing the parts of the body that are not meant to be

exposed to others (`awrah), except in cases of exigency or real,

compelling need.

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2.2 QAWA’ID FIQHIYYAH

DEFINITION:

Qawa‟id Fiqhiyyah is a compound word derived from two Arabic root words, Qaa‟idah and

Fiqh. In Arabic, Qaa‟idah means: the foundation upon which something is built and depends

(Khalid, 1421H) . It is also used to refer to a general rule, a principle or a maxim. Technically,

Qaa‟idah means “a collective or general ruling from which the ruling of its individual

components can be deduced.”( Mohammad Hashim kamali). Fiqh on the other hand, literally

means understanding and technically refers to “deducing rulings of Islamic law from relevant

individual specific legal texts” (Zainud Deen , 1403H).

Thus, a Qawa‟id Fiqhiyyah can be defined as “a general ruling which applies to several

individual instances in various chapters of Islamic Jurisprudence” (Abdur Rahman , 1403H).

They are “theoretical abstractions usually in the form of short epithetical statements that are

expression often in a few words of the goals and objectives of the Shariah” (13).

In this chapter, we will consider the different categories of Qawa‟id Fiqhiyyah and the criteria

used in classifying them. Secondly, we will discuss the position of these legal maxims as the

main sources of Islamic law, the Qur‟an and Sunnah and to what extend we ca reply upon then in

arriving at a ruling in Islamic law.

Since these Qawa‟id Fiqhiyyah vary concerning the level of abstraction and the scope that they

cover, some having application, whereas others might apply to a particular area of fiqh. Qawa‟id

Fiqhiyyah or the normative legal maxims and they apply to the entire range of fiqh without any

specification. The madhahib are generally in agreement over them.

In another context, these form the basis from which all other principles and maxims are derived,

that is why the scholars have “singled out about five of these to say that they grasp between then

the essence of the Shari‟ah as a whole, and the rest are simply an elaboration of these”.

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These are namely:

1. First Legal Maxim: Al-Umuru Bi Maqasidiha

(Matters Are Determined According To Intention)

2. Second Legal Maxim: Al-Mashaqqah Tajlib Al-Taisir

(Hardship Begets Facility)

3. Third Legal Maxim: Al-Yaqin La Yuzal Bi Al-Syakk

(Certainty Cannot Be Dispelled By Doubts)

4. Fourth Legal Maxim: Al-Darar Yuzal

(Damage/Injury Is Put An End To)

Application:

1) FIRST LEGAL MAXIM: AL-UMURU BI MAQASIDIHA

(MATTERS ARE DETERMINED ACCORDING TO INTENTION)

Any actions done or words expressed are judged based on one‟s intention (an-niyyah).

The effect of judgment for any particular transaction is also in accordance with the

intention underlying. Any actions done by a person with different intentions will have

different effects according to Islam. Intention is the force directed towards an action done

by a person.

It is narrated by Umar r.a that prophet (pbuh) said: Deeds are judged by intention and

every persons is judged according to his intention. Also narrated by Anas r.a. the prophet

(pbuh) said: There is no deeds to those who have no intention.

For example the cosmetic surgery that is considered necessary is that which is done when

there is a need for it, when something does not look right, when something is missing, if

there is too much or too little of something, or because something has been destroyed or

deformed. At the same time, it is regarded as “cosmetic” surgery because it results in

improved appearance.

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Any cosmetic surgery which comes under this heading of need because of the fact that

the reason for the surgery is causing harm is permissible, and is not considered to be

changing the creation of Allah.

Cosmetic surgery can be done for medical purpose and to cure the disease. It is also can

be done because of the external that are intended to eliminate disability and deforming.

This is because under intend will result in harm to a person whether material or spiritual

but it is not reach the limits of Islamic Jurisprudence darurah. The cosmetic surgery can

be done for aimed to improving the handicapped since birth such as cleft lip or disability

that come due to accident or fire such as face damaged by the fire or accident.

Anas ibn Mas'ud reported that the Prophet, peace be upon him, said: "Verily, Allah has

not let any malady occur without providing its remedy. Therefore seek medical treatment

for your illnesses.'' ( Nasa'i, Ibn Majah, and al-Hakim.) Jabir narrated that the Messenger

of Allah, peace be upon him, said: "There is a cure for every disease. Whenever an illness

is treated with its right remedy, it will, by Allah's permission, be cured." (Muslim).

Humans should not be arrogant by attributing cure to themselves and not Allah. In the

same way humans cannot refuse to take measures to cure disease claiming that Allah will

take care of it. It is true that Allah cures but in some cases that cure operates through the

agency of humans. Sometimes the measures that humans take to cure a disease may not

be sufficient on their own to alleviate the condition; it is Allah‟s divine intervention and

mercy that brings about the complete cure.

2) SECOND LEGAL MAXIM: AL-MASHAQQAH TAJLIB AL-TAISIR

(HARDSHIP BEGETS FACILITY)

In certain circumstances, any original ruling (Azimah), the implementation of

which causes hardship/harm/injury such as hardship should be removed and

replaced by easiness/leniency/tolerance (Rukhsah). When hardship arises, the

general rules can be resorted to. Hardship that surpass the normal limit and ability

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of a person and hardship accompanying implementation of the basic ibadah such

as hunger/tiredness during fasting and difficultirs during hajj as such hardship are

considered as bearable and within the ability of human beings. There are several

Quranic Verses and the Hadith of the Prophet (pbuh) which indicate that Allah

intends which are to provide facility and to lift all kind of unbearable hardship

from human beings.

“…He did not make any difficulty for you regarding the religion.” (al-Hajj: 78)

“…Allah wants ease for you and He does not want hardship for you…” (al-

Baqarah: 185)

“…Allah does not give anyone legal responsibility for anything except what is

within their capacity” (al-Baqarah: 286)

Bukhari and Muslim said that “You have not been sent like those who have been

given hardship. Rather you have been sent as those who have been given ease and

facility” and “Whenever the Messenger of Allah was given choice between two

things, he chose the easier one unless it was sin”. Besides that, al-Tabarani said

“Surely Allah introduced the din as easy, full of kindness and wide. He did not

make it narrow.”

Faults which result from illness include the scars left by leprosy or other skin

diseases, or scars caused by accidents and burns. There is no doubt that such

faults and scars cause physical and psychological pain and harm, therefore Islam

allows people afflicted with them to remove or reduce them by surgical means.

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3) FOURTH LEGAL MAXIM: AL-DARAR YUZAL

(DAMAGE/INJURY IS PUT AN END TO)

The Al-Darar Yuzal is the maxim shows that all kind of injury should be removed or

eliminated. Islam does not allow one to cause harm to others or vice versa. All necessary

measures should be taken in order to prevent any kind of damage from happening. Islam

also encourages us to take all necessary measures to remove or to lessen its destructive

implications as possible.

“And spend of your substance in the cause of Allah and make not your own hands

contribute to your destruction but do good, for Allah loves those who do good” (Al-

Baqarah: 195). One Hadith said that “Harm shall not be inflicted nor recipcated”.

Example for cosmetic surgery is to remove bulging in the breasts of a man. It is

permissible for you to undergo such an operation in order to remove this bulging on

condition that these is a high probability of success in the operation and no side effect

worse than or equal to the benefit of removing it will result.

3.0 CONCLUSION

Islam permits cosmetic surgery for the purpose of treating the disease and to save as well as to

preserve the life. However, Islam prohibits the cosmetic surgery with the intention of change the

Allah SWT creation as to boost the social status in the community. In conclusion, every Muslim

must be grateful because Allah SWT has created human in the best stature and should be thanked

for the opportunity of life in this world

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4.0 REFERENCES

Atiyeh, B.S., Mohamed Kadry, Hayek, S.N. & Ramzi, S.M., (2008). Aesthetic

Surgery and Religion: Islamic Law Perspective, Springer, 32, 1-10.

Muhammad Hashim Kamali, (2010). Al-Maqasid Al-Shari’ah The Objectives of

Islamic Law, at http://www.aml.org.uk/journal/3.1/Kamali%20-%20Maqasid.pdf.

The International Islamic Fiqh Academy (IIFA), (2007). Affiliated to the

Organization of the Islamic Conference, held its 18th session on July 9 - 14,

Putrajaya, Malaysia.

Qawa‟id at-Tafseer Jam‟an wa Dirasah, Khalid bin Uthman as-Sabt, Daar Ibn Affan,

al- Qahirah, at Taba‟atul Ulaa, 1421H.

Qawa‟id Al-Fiqh: The Legal Maxims of Islamic Law, Mohammad Hashim kamali,

The Association of Muslim Lawyers (UK)

Ashbah wan Naza’ir Zainud Deen bin Ibraheem (Ibn Nujaim), tahqeeq Muhammad

Mutee‟ al-Hafizh, Daar al-Fikr, Dimashq, at-Taba‟atul ulaa, 1403H.

Ashbah wan Naza’ir fee Qawa’id wa Furoo fiqhis Shafi’iyyah, Abdur Rahman bin

Abi Bakr as-Suyutiy, Daar al-Kutub al-„Ilmiyyah, Beirut, at-Taba‟atul Ulaa, 1403H.

Ashbah wan Naza’ir libn al-wakeel