The increasing role of modern genetic technology in the determination of genealogical relationships has revolutionized established legal rules on genealogy, both religious and secular, and has shifted the relevance of related discussions beyond specialized legal circles into the wider domain of bioethics. Bioethics is a broad term that is used not only to cover medical ethics in the traditional sense but also ethics in the life sciences in general and the impact of modern biomedical technology on moral decision‐making in particular. It is also used broadly to refer to ethical questioning involving the human body, the environment, and issues related to sustainability (Reich ; ). Islamic bioethics would, therefore, denote systematic analysis of bioethical problems in light of Islamic normative values and principles. Given the large scope of Islamic law, which ranges from ritual purity to different types of civil and criminal regulations, Islamic (bio)ethical reasoning would often involve an element of Islamic legal prescription. This, in turn, reveals the limitation of any analysis of Islamic law as a purely legal system in the strict positivist sense (Hallaq , 256).

Bioethical problems signify some of the important challenges in applied ethics that confront the inherited Islamic ethico‐legal tradition and test the efficacy of its methodological tools in the wake of new scientific knowledge and advanced biomedical technology (Moosa and Mian , 2:773–74). This article illustrates this point by exploring the impact of DNA testing on Islamic paternity regulations and the extent to which these regulations can remain intact in the wake of this technology. Prior to the discovery of blood group tests and DNA technology, a clear distinction between biological and legal paternity was not possible. In settling paternity disputes, legal systems had to rely on traditional methods such as resemblance of physical features and duration of pregnancy in the absence of a decisive extralegal method. Marriage was the most important factor in paternity disputes and it was given priority over any other competing factor. With modern medical testing this is no longer the case and in order to ensure accuracy, legal systems seek to incorporate these new scientific methods (Albrecht and Schultheiss , 31–37).

Islamic regulations for paternity establishment and negation are rooted in religiously binding textual foundations. The legal definition of paternity under Islamic law is anchored in formal rules governing and regulating licit sexual relationship. Islamic law, therefore, treats paternity as a consequence of such relationship, not as a separate or an independent issue. Paternity in Islam, however, is not exclusively a legal issue but it is also an ethical one because it is linked to a certain moral vision of family, sexual conduct, and social order. But if, in the modern period, DNA testing enables verification of genetic connections, can the legal rules governing the definition of paternity change accordingly? And, can Islamic legal rules that regulate paternity be separated from the other ethical dimensions of paternity?

This article investigates the extent to which the implications of the biomedical and genetic technology on Islamic paternity regulations can be evaluated in light of the bioethical principle of nonmaleficence and the Islamic principle of no harm. More particularly, it examines the extent to which Islamic reservations on the use of DNA testing for paternity verification can be explained in light of the harm‐prevention principles, and the extent to which application of these two principles can yield similar results. Several recent studies have pointed out the similarities between the bioethical principle of nonmaleficence and the Islamic principle of no harm. These studies, however, recognize that determination of what constitutes harm and also ways of resolving conflicts between competing principles require a degree of specificity that can only be had in the context of concrete examples (Sachedina , 266; Sajoo , 13). They deplore ad hoc, vague, and intuitive employment or invocation of concepts such as beneficence or maleficence in the investigation of modern bioethical issues (Moosa , 463).

I argue that the outcome of the application of these principles depends on the moral presuppositions undergirding each of them. While the principle of nonmaleficence aims to achieve the maximum balance of benefit for all concerned, the principle of no harm is subject to several qualifications that stem from Islamic legal and moral instructions. I illustrate this point by two examples: paternity of children born outside of marriage and the right of a putative biological father to challenge the presumed paternity of a legal father. In general, Islamic law does not recognize paternity in these two cases. The article investigates the legal and ethical justification behind denial of legal paternity in these two cases and compares these examples with the paternity of the foundling and children of unknown paternity. These examples reveal the importance of the paternity‐specific principles in Islamic law, which give priority to licit sexual relation over any other consideration, including certainty of biological connection, which DNA technology can achieve. Due to the strong textual foundations that support the principle of licit sexual relation, it has been counted among the fundamental objectives of sharī‘ah that aim to safeguard religion, life, intellect, wealth, progeny, and honor. Moreover, its religious underpinnings place it within the category of divine rights, which gives it higher priority within the Islamic typology and hierarchy of rights. The principle of licit sexual relation has two dimensions: right‐granting and right‐denying. Although it preserves sanctity of marriage and confirms de facto marital paternity, it bars recognition of extramarital paternity and denies third parties any rights to make paternity claims that undermine or diminish the claim of the rightful owner of the firāsh (conjugal bed) in a licit sexual relationship. One main question that the article investigates is the extent to which the right‐denying dimension of the licit sexual relation principle constitutes ethical or legal harm.

These examples show that in the Islamic ethico‐legal tradition the definition of harm and its boundaries is a function of both: (1) identification of legal and religious rights and the extent to which these rights are violated; and (2) balancing and reconciling perceived harm against both specific principles in relation to a given issue and also the overarching objectives of sharī‘ah. Balancing stands for “the process of finding reasons to support beliefs about which moral norms should prevail” (Beauchamp and Childress , 20). In the Islamic ethico‐legal tradition the process of balancing adheres to the hierarchy of legal and moral principles inherent in the Islamic normative system, which places it within what Beauchamp and Childress call particular morality (Beauchamp and Childress , 5). Although the Islamic particular morality is mostly in agreement with what they call common morality, the process of specification and particularization of common ethical principles according to Islamic moral commitments can bring the distinction into sharper focus. Highlighting the ethical particularities of the Islamic law of paternity is not meant to advocate a view of cultural relativity but rather meant to emphasize the need for deeper appreciation of the rooted foundations of paternity regulations in the Islamic tradition. Moreover, these particularities should not undermine the common elements that Islamic bioethical discussions share with other religious and secular systems (Sing ).

The article is divided into three main sections. The first focuses on the legal dimensions of paternity by providing an overview of paternity regulations under Islamic law, with a special focus on the relationship between marriage and paternity. This section focuses particularly on the juristic foundations of what I refer to here as the “licit sex principle” rather than on the rules and regulations that govern paternity per se (Shabana ; ). This is meant to highlight the importance of this principle and to explain how paternity became dependent on it. The second section focuses on the ethical dimension of paternity by discussing its relationship to both the Islamic typology of rights and the objectives of sharī‘ah. The third section focuses on the bioethical dimension of paternity by exploring the extent to which the licit sex principle and its right‐denying dimensions involve harm, especially after the discovery of DNA technology.

Paternity Regulations under Islamic Law

The main reference concerning paternity in the Qur’ān is in 33:5: “Call them after their fathers.” Most of the commentators link this verse to the story of Zayd ibn (son of) Ḥārithah (d. 8/629). Zayd was the Prophet's adopted son, who used to be called Zayd ibn Muḥammad. The Prophet is instructed to change the name of Zayd to bear the name of his original father, Ḥārithah (Ṭabarī , 19:12; Ibn al‐Athīr n.d., 2:350–53). The word in the verse is ābā’ihim (their fathers) but the verse does not specify the type of father: biological or legal. Drawing this distinction in a premodern setting might seem anachronistic but the context clearly makes the distinction between an adoptive father and a natural one, where the latter is understood as the recognized blood father. Several Prophetic traditions make it clear that the term father in Islamic law refers to the legal father not the biological one. This does not necessarily mean that the distinction between legal and biological paternity has always been drawn. In most cases the legal father is also the biological father but such a distinction is made only in cases of disputed or contested paternity (Ibrāhīm and Ibrāhīm , 629). The most important prophetic reference on this issue is a report that recounts an actual paternity dispute in which the Prophet confirmed the precedence of legal paternity over biological paternity. In this report the Prophet laid down the principle that would govern paternity issues and that would define accepted paternity as legal paternity, al‐walad lil‐firāsh (the child belongs to the [owner of the conjugal] bed) (Ibn Anas n.d., 2:181; Ibn Ḥajar , 12:38; Ibn al‐Mundhir , 9:449; Nawawī , 10:30).

Ethical Dimension of Paternity

In this section, I explore the ethical dimensions of paternity through its connection with the two notions of legal rights and objectives of sharī‘ah. It is in the juristic discussions over these two concepts that one can trace the nexus between the ideal law of sharī‘ah (as embodied in the textual foundations) and the actual constructed law of fiqh (as developed by the jurists in legal manuals or in the form of fatwas). Both these notions bespeak of the moral elements that inspire the legal process in the Islamic tradition and that highlight the ethical underpinnings of Islamic law.

The juristic classification of legal rights depends on several considerations such as their nature, consequences, or implications (Mawsū‘ah , 18:13). In general, legal rights are divided into four main categories: pure rights of God; pure rights of man; mixed rights of God and man with a greater share for God; and mixed rights of God and man with a greater share for man. Pure rights of God denote the right of obedience that humans owe to God. They include explicit divine commands, devotional deeds, and rules pertaining to public affairs. They are attributed to God due to their important significance and also because no one can nullify or obliterate them. Pure rights of man refer to private entitlements especially those involving financial rights over which one has full legal discretion. The mixed rights with a greater share for God refer to rules governing legal institutions such as false accusation (qadhf ) for which a guilty individual deserves the stipulated punishment (ḥadd). While the victim has the right to redress harm inflicted on him/her, the punishment is meant also to preserve public morality. The last type, mixed rights with a greater share for man, refers to the example of retaliation (qīṣāṣ ), where the next of kin have the right to either implement the punishment or forgive the perpetrator (Bukhārī , 4:194; Ibn ‘Abd al‐Salām , 1:219–20; Mawsū‘ah , 18:15–19; Qarāfī , 1:269–70; Shāṭibī , 2:271–73).

Paternity claims involve different types of rights: rights of God, which refer to the sharī‘ah‐based regulations stipulating, among other things, who one can and cannot marry within the immediate and extended family, which is decided on the basis of one's lineage (Shalabī , 131–32); rights of the mother, which refer to confirmation of innocence and removal of any doubt concerning integrity and moral character; rights of the father, which refer to exercise of authority over his child and development of parental connection between both parents and the child; and finally rights of the child to enjoy full legal status in society and to be entitled to all types of legal and financial rights (Abū Zayd , 302–03; Hilālī , 297; Mawsū‘ah , 40:233–34; ‘Uthmān , 314–16). The multiplicity of rights that paternity involves in Islam stems from its association with the various ethico‐legal rules governing issues such as marriage, child custody and support, and inheritance.

Apart from its strong connection to the notion of rights in Islam, paternity also occupies a central position within the structure of the higher objectives of sharī‘ah. The foregoing discussion on the justification of legal rules (ta‘līl al‐aḥkām) underscores the teleological aspect of the Islamic legal process. Law should not be arbitrary and the pursuit of the rational and ethical underpinnings of textual evidence is meant to protect the law against arbitrariness. In his investigation of the relationship between Islamic law and ethics, Fazlur Rahman notes that the search for and verification of the operative cause (‘illah) in legal analogy is meant to ensure the realization of the ethical values that the law aims to achieve (Rahman , 9). The idea of the higher objectives of sharī‘ah (maqāsid) seeks to uncover the ultimate ends of sharī‘ah and therefore can be seen as an extension of the search for operative causes for individual legal rules to the entire legal system. In other words, it seeks to approximate and fulfill the ideal law (sharī‘ah) that actual law (fiqh) should emulate and embody. Investigating the roots and history of maqāsid as a separate legal genre falls beyond the scope of the present study but what is of main concern here is to point out the prominent attention that paternity received in the various treatments of maqāsid throughout the course of the Islamic legal tradition. This attention is again due to the fact that paternity has always been connected with marriage (and the licit sex principle), which has always been considered the ideal channel for family formation and social structure. According to al‐Ghazālī, for example, one of the primary objectives of marriage is preservation of progeny (ibqā’ al‐nasl ) (Ghazālī n.d., 2:32; Ghazālī , 270). The standard juristic classification of the sharī‘ah objectives comprises three main levels: necessities, needs, and embellishments. By the time maqāsid developed into a distinct legal genre, which is usually traced back to the celebrated work of Abū Ishāq al‐Shāṭibī (d. 790/1388), protection of paternity was articulated as one of the five necessary values that the law aims to preserve after the other four values of religion, life, intellect, and wealth (Shāṭibī , 2:150–51). Various terms have been associated with paternity as one of the necessary values of sharī‘ah such as nasl (progeny), nasab (paternity), and ‘irḍ (honor). In effect, this reflects the various connotations that the term paternity holds in the Islamic ethico‐legal tradition. The association between paternity and these multilayered concepts may reflect the place and status of different right/claim‐holders in a paternity relationship: nasl refers to the rights of the child; nasab refers to the child‐parent relationship; and ‘irḍ refers to the rights of the mother.

From the time of Shāṭibī onwards, juristic engagements of maqāsid have always emphasized the nexus between marriage and paternity. For example, in one of the important contemporary treatments of maqāsid, the famous Tunisian jurist Muḥammad al‐Ṭāhir Bin ‘Āshūr singled out family regulations and their objectives as one of the most important domains that distinguish the sharī‘ah‐based interpersonal transactions (mu‘āmalāt) system. According to Bin ‘Āshūr, the Islamic family structure consists of three main bonds: marriage (nikāḥ), kinship (qarābah), and affinity (muṣāharah). The Islamic legal system governs and regulates both the formation and, when necessary, the dissolution of these three bonds (Bin ‘Āshūr , 151). As far as paternity is concerned, one of the main objectives of these regulations is to ensure certainty of lineage through the institution of marriage as the main, if not the only, legitimate method for procreation. Apart from being a basic human pursuit, Bin ‘Āshūr notes that certainty of lineage is more conducive to healthy and intimate relationships within the nucleus and extended family structures. It promotes instinctive affection and dutifulness among family members and adds an air of sanctity that distinguishes the closest and most intimate types of human relationships (Bin ‘Āshūr , 155–59). Bin ‘Āshūr, however, distinguishes between preservation of progeny as a necessary objective of sharī‘ah to ensure continuity of the human species and existence on earth on the one hand, and protection of paternity and certainty of lineage on the other. He notes that the classical jurists condensed these two distinct objectives into one value and placed it within the necessary values under the rubrics of preservation of progeny or paternity. He argues that while protection of progeny can be justified as a necessary value since it aims to preserve the existence of the human species, protection of paternity, although extremely important, should be classified among the needs but not the necessities. Bin ‘Āshūr's distinction between progeny and paternity does not suggest that the latter is not important, but rather that in the larger scheme of the ultimate objectives the former should occupy a higher order since it deals with the continued existence of the human species (Bin ‘Āshūr , 79–80).

Bioethical Dimensions of Paternity: DNA Testing and Harm Evaluation

Certain or near certain knowledge of genetic ties can create competing or conflicting paternity claims between legal and biological paternity. If we exclude purely religious or specific arguments, a harm‐based argument can be made by a legal father against a biological father in support of sanctity of marriage. In return, an argument by a biological father can be made in support of true genetic connection. In this section, I explore the extent to which denial of paternity constitutes legal or ethical harm. More particularly, I explore the extent to which a harm‐based argument can be made by appeal to or against the Islamic paternity regulations. Since the determination of paternity has become mostly dependent on modern genetic testing, I refer to bioethical discussions over the concepts of harm and nonmaleficence and examine how much these discussions are relevant to paternity issues. In general, bioethics is concerned with harm‐related questions and criteria for the assessment of harm‐based judgments. Such harm may be immediate or direct, as experienced or suffered by patients; indirect or potential, as experienced by unborn children; or it may include long‐term social harm that results from certain biomedical practices or procedures such as prenatal selection or genetic testing (Beauchamp and Childress , 152; Schoene‐Seifert , 2:1033. In bioethics literature the concept of nonmaleficence is often conjoined with the concept of beneficence. The term utility is sometimes used to refer to this composite principle, which in essence signifies maximization of benefit over harm or the choice of “the most favorable balance of good over bad for all concerned” (Vaughn , 11). According to William Frankena, the duties of beneficence include four elements: not to inflict harm; to prevent harm; to remove harm; and to promote good. Beauchamp and Childress single out the first element under nonmaleficence and keep the other three under beneficence on the basis of a distinction between negative duties of omission and positive duties of commission (Schoene‐Seifert , 2:1035). The principle of nonmaleficence, which is particularly common in biomedical ethics, is explained and measured by the notions of harm and injury. Harm may involve violation of someone's rights (the equivalent of wronging) or simply defeating someone's interests (Beauchamp and Childress , 152). Conceptual questions about the definition and scope of harm include the eligibility of a right or interest holder and whether this includes unborn children and incompetent persons. They also include whether harm is defined subjectively or whether there are objective criteria to determine what constitutes harm. One of the clear examples that illustrate different attitudes toward the conceptualization of harm is assisted suicide. While it can be construed as an expression of respect for personal autonomy regarding one's own sense of what a good life should be, it can be scrutinized through a set of professional and communitarian standards.

Despite the central role that the notion of harm plays in biomedical ethics, it has been noted that it remains “a vague and contested concept that in and of itself does not provide much moral guidance. What counts as harm varies greatly, as do the scope and relative importance of the prescriptions not to inflict, to prevent, or to prove harm” (Schoene‐Seifert , 2:1033). In biomedical ethics, the determination of harm is governed by the standard of due care in the sense of “taking sufficient and appropriate care to avoid causing harm, as the circumstances demand of a reasonable and prudent person” (Beauchamp and Childress , 153). Failure to uphold this standard constitutes negligence, which defines legal and professional liability.

The Arabic term for harm is ḍarr or ḍarar, which covers any act that results in loss, diminution, or aggression against someone's protected rights or interests. It is the opposite of beneficence or naf‘ (Ibn Manẓūr , 9:32). In legal terms, protected rights or interests exclude legal sanctions or punishments (Mawsū‘ah , 28:179). In the Islamic tradition, the principle of no harm is rooted in several textual foundations in the Qur’ān and the Sunnah of the Prophet, which contain many references to terms denoting the concept of harm and their derivatives (‘Abd al‐Bāqī , 515–16). The most famous textual foundation for the principle of no harm as it developed in the Islamic legal and ethical discourses is traced to this Prophetic report: “No harm shall be inflicted or reciprocated (lā ḍarara wa‐lā ḍirār)” (Ibn Anas n.d., 2:184). The principle of no harm is counted among what Muslim jurists call the five cardinal or universal maxims that arguably govern most of the substantive rules in Islamic jurisprudence (Heinrichs ; Shabana , 111–24). The other four are: deeds are judged by the agent's intent; certainty cannot be trumped by uncertainty; difficulty necessitates ease; and common custom is to be consulted in the construction of legal rulings. The exact number of these legal maxims is subject to debate. While some jurists tend to limit the number to five, others condense them into a single maxim—according to al‐Suyūṭī (d. 911/1505), this would be the principle of no harm (Ibn Nujaym n.d., 93; Suyūṭī , 62)—while others list up to two hundred legal maxims. Legal maxims are divided into general maxims, such as the five cardinal ones, and specific maxims, which address certain topics or issues. The latter are also sometimes called ḍābiṭ (pl. ḍawābiṭ) (Nadwī , 46). The interpretation of the no harm principle is governed and regulated by several other legal maxims that determine its definition, range, scope, and applicability in different cases and contexts (Shaykh ; Maḥmūd , 621–25).

In paternity cases, the definition of harm can be determined by the violation of relevant rights especially God's rights, which are connected with what I referred to here as the licit sex principle. As shown above, this principle is rooted in several textual references governing a wide range of important institutions such as marriage, stipulated punishment for illicit sex, and inheritance. Given the centrality of this principle for paternity regulations, its violation would amount to irremediable harm, which would translate into denial of legal paternity. This includes claims that challenge or conflict with established marital paternity. Infringement of any other principle may constitute remediable harm, which may create at least a rebuttable paternity claim. The general principle in paternity cases then becomes: any paternity claim that does not conflict with the licit sex principle is, prima facie, admissible. The licit sex principle is not limited to fully valid marital relationships but, as far as paternity is concerned, it also includes imperfect or questionable types of marriage such as: irregular or deficient marriage (nikāḥ fāsīd); paternity of children born as a result of doubtful intercourse (wat’ al‐shubhah) (Mawsū‘ah , 25:340); children of unknown paternity; and also, according to some jurists, biological paternity that does not conflict with the licit sex principle (i.e., if the mother is unmarried). This lenient attitude reflects a tendency in the juristic tradition to give priority to establishment of paternity as much as possible so long as the licit sex principle is not violated, at least entirely (Mawsū‘ah , 40:246).

This emphasis in Islamic law on marriage for the establishment of legal paternity can also be found in other legal systems. For example, in the common law system, paternity disputes used to be settled in accordance with an irrebuttable marital presumption, which dates back to the early 1700s (Glennon , 17). The presumption provides that: “If a husband, not physically incapable, was within the four seas of England during the period of gestation, the court would not listen to evidence casting doubt on his paternity” (Anderlik and Rothstein , 222). The marital presumption was further strengthened by some procedural methods prohibiting spouses from testifying to nonaccess, known as the Lord Mansfield Rule (Martin et al. , 8). These tight legal regulations in favor of the marital foundation of paternity were meant to ensure social stability and certainty in family relationships. However, over the past few decades several social, economic and scientific factors have contributed to the erosion of the marital presumption. Chief among these factors are: rapid increase in nonmarital births; antipoverty regulations targeting biological fathers to provide financial support for their biological children; increased media interest in family disputes; and the discovery of DNA testing (Anderlik and Rothstein , 216; Singer , 249).

Although DNA testing was meant to facilitate paternity establishment, it has also been used increasingly to disestablish legal paternity and consequently has resulted in the disruption of many existing paternity relationships (Singer , 253). To counter the inadvertent consequences of the weakening of the marital presumption, some researchers argue for reinvigorating it on the grounds that parenthood involves social and psychological dimensions that transcend mere parent‐child biological connection. Parenthood is held to be “a legal and social construct, not a biological fact” (Singer , 266). For example, the term “rearing parent” is suggested to underscore the importance of interaction, companionship, and shared experience beyond mere biological relationship (Kaebnick , 53–54). Similarly the term “dual parent” is suggested to incorporate multiple and competing parentage claims arising from either adoption arrangements, assisted reproduction, or concurrent legal and biological paternity claims (Singer , 269). The social construction of paternity is also precipitated by modern reproductive technologies, which, in turn, have challenged the long‐established model of traditional family and forced researchers to revisit classical definitions of parentage. Ironically, modern genetic and reproductive technologies seem to be moving in two different directions (Anderlik and Rothstein , 232). While DNA testing emphasizes true genetic connections, reproductive technologies such as IVF and surrogacy arrangements emphasize multiple parenting.

Islamic Bioethics between Islamic Law and Ethics

Islamic bioethics is a type of applied ethics, which denotes the implementation of ethical reasoning for the resolution of real or practical problems (Moosa and Mian , 2:769). Throughout the Islamic intellectual tradition, applied ethics was pursued under different rubrics ranging from fiqh (substantive law) on the one hand to akhlāq (ethics) or ādāb (rules of proper conduct) on the other (Jābirī ; Sajoo , 7). Although one can trace the development of the distinct discourses that these different domains of applied ethics generated (ethico‐legal and ethico‐moral), there has often been a great deal of overlap between these two discourses especially when akhlāq or ādāb are qualified as distinctly Islamic. The term fiqh literally means “understanding” and technically it means the proper understanding of the divine norms embodied in sharī‘ah. As the science of Islamic substantive law, it denotes knowledge of the sharī‘ah‐based practical rules that are derived from the Islamic foundational sources, the Qur’ān and the Sunnah of the Prophet (al‐‘ilm bil‐aḥkām al‐shar‘iyyah al‐‘amaliyyah al‐mustamaddah min adillatihā al‐tafṣīliyyah) (Zarkashī 1:15). The scope of these rules covers a wide range of issues from purely devotional deeds (‘ibadāt) to contractual and interpersonal deeds that would fall under different types of modern legal classifications such public and private law (mu‘āmalāt). Islamic legal theory (uṣūl al‐fiqh) stipulates the guiding principles that govern the process of legal construction of real practical questions, especially in light of the five main categories of prohibition, reprehension, neutrality, commendation, and obligation. Accordingly, any action by a legally competent individual (mukallaf ) would fall under one of these five qualifications (Shāfi‘ī n.d., 20; Zarkashī , 1:129). Fiqh, therefore, does not simply stand for positive legal rules (in the modern positive sense) but the rules that it generates are infused with Islamic moral values as denoted by these five main qualifications.

Both law and ethics inform, shape, and regulate human obligations and the way they relate to each other has a long history in major philosophical and religious traditions. Delineating the exact relationship between law and morality requires clear definitions of both terms because they are not always considered mutually exclusive (Berman, Greiner, and Saliba , 16; Hallaq ; Van Der Burg , 58). In the Islamic intellectual tradition, moral reasoning has significantly influenced legal theory and practice as is clearly illustrated by the extensive discussions on the definition of good and evil in juristic discussions. One important concept that helps illustrate the relationship between law and morality is the concept of harm. Both ethics and law purport to prevent, eliminate, and redress harm. While the former achieves this mostly at the internal level through intentions and motives, the latter at the external level through actual procedures and power of enforcement. But the relationship between law and ethics is neither linear nor straightforward. The very notion of harm is antithetical to both ethics and law but arguably an ethical or legal action may result, at least inadvertently, in harmful consequences. Ideally, the notion of law by definition presupposes a moral element that ensures that legal construction and practice does not become unethical. This was the main concern that many jurists had against the legal stratagems (ḥiyal) genre, which focuses on formal compliance with legal rules regardless of their underlying ethical objectives. On the other hand, rigid application of law, can lead to injustice and that is why the jurists distinguish between the letter and spirit of law through notions such as equity (istiḥsān) and higher objectives of the law (maqāsid) to ensure that law does not involve injustice or harm (ḍarar).

From a modern perspective, and bearing in mind the difference between voluntary moral precepts and enforceable positive legal rules, one notices that the Islamic ethico‐legal rules of  fiqh share many of the features of these two distinct domains, which explains the difficulty of mapping the ethico‐legal rules of fiqh in the modern period. For example, there are several important distinctions between positive legal rules and moral precepts (Amīn , 129). The first has to deal with the nature of these two distinct domains. While legal rules are not immutable (they can change depending on socioeconomic or political circumstances), moral precepts, on the other hand, are generally considered fixed and immutable. The ethico‐legal rules of fiqh fall somewhere in between these two endpoints. While Muslim jurists often emphasize that the legal rules of fiqh may change, they reason that such change is meant to serve the ethical dimensions of these rules. So, while the legal component of fiqh rules may not be immutable, the ethical component, usually tied to the ultimate objectives of sharī‘ah, remains immutable. ‘

Another distinction between legal and moral rules is the scope of their applicability, authority and enforcement. While legal rules apply mostly to basic duties and necessities in order to ensure the proper functioning of social life such as preservation of people's life and property, moral rules go beyond the scope of basic duties to include all aspects of life in an effort to achieve ideal or near‐ideal existence. As far as the scope of authority, legal rules govern only external concrete actions, but moral rules, additionally, concern and evaluate the motives behind these external actions. Finally, positive legal rules are administered and enforced through the mechanism of the state and its different branches but the enforcement of moral rules is channeled through individual conscience and sense of self‐regulation. When we turn to the scope and applicability of the ethico‐legal rules of fiqh, we notice that they are inspired by the multilayered system of sharī‘ah objectives that includes in addition to the fundamental necessities (ḍarūriyyāt) also basic needs (ḥajiyyāt) and embellishments (taḥsīniyyāt). Although the legal rules of fiqh deal formally with external actions, similar to positive legal rules, the religious component of these rules addresses the internal processes inspiring these actions, hence the added emphasis on the role of intentions especially in devotional deeds. The religio‐moral dimension of fiqh rules contemplates in addition to worldly rewards and punishments, otherworldly ones as well. The metaphysical dimension of the afterlife provides justification for a major component of the ethico‐legal rules of fiqh, especially those addressing devotional deeds and stipulated punishments (ḥudūd). In the premodern Islamic legal universe these ethico‐legal rules used to serve primarily as legal but also as religio‐moral rules. In the modern period and following the displacement of sharī‘ah from the domain of public life, most of the ethico‐legal rules of fiqh were relegated to the private domain of personal faith, with the exception of personal status and family law in most Muslim‐majority nation states.

This confluence of legal and ethical dimensions, which is a major feature of the Islamic legal system, is clearly illustrated in the Islamic law of paternity and is further heightened after the introduction of DNA testing. Paternity regulations fall under the domain of family law, which remains the only foothold of sharī‘ah in most Muslim‐majority nation states. This means that the adjudication of paternity disputes has to contend with both the legal and ethical concerns of Islamic law. The fundamental question that the DNA technology poses to the Islamic legal system is whether paternity will continue to be treated as an ethico‐legal issue (tied to certain family and social values) or will become a purely legal one (detached from such values). Review of contemporary Muslim legal thinking and practice reveals that in the presence of an established marital relationship, legal paternity is attributed to the husband and legal father unless he formally initiates paternity negation procedures through li‘ān. If the woman is not married, modern scholars are divided, following a similar disagreement among premodern jurists on the possibility of recognizing biological paternity outside marriage. Ultimately the definition of legal or ethical harm in paternity cases under Islamic law remains tied to the licit sex principle and the extent to which it is upheld or violated.

Acknowledgments

This article grew out of a presentation at the conference on “Islamic Bioethics: The Interplay of Islam and the West” that was held in Doha, Qatar, June 24–25, 2012. This conference was part of the project “Islamic Medical and Scientific Ethics (IMSE),” funded by the Qatar National Research Fund (QNRF) and organized by the Library of the School of Foreign Service in Qatar (SFSQ), Georgetown University in cooperation with the Bioethics Research Library, Georgetown University, Washington, DC. This publication was made possible by NPRP Grant #[08‐793‐6‐017] and NPRP Grant # [5‐1390‐6‐043] from the Qatar National Research Fund (a member of Qatar Foundation). It has also been supported by the Qatar Foundation Research Excellence Award. The statements made herein are solely the responsibility of the author.