By Shaykh Mohammed Amin Kholwadia
The following transcript is a talk by Shaykh Amin Kholwadia from the seminar titled Resuscitating Healthcare Practices with Ingenuity in the Face of a Pandemic hosted by The World Muslim Communities Council on Islamic Jurisprudence Amid Pandemic Times on May 10, 2020.
Al-salām ʿalaykum wa raḥmatullāhi wa barakātahū, Alḥamdulillah,
Bismillah al-Raḥmān al-Raḥīm, Allahumma Ṣalli ʿalā Sayyidinā wa nabiyyinā wa Mawlānā Muḥammad wa bārik wa sallim.
Jazakallah Khairan to Shaykh Rizwan and Dr. Sano, they have given very inspirational talks and hopefully we can take some of the advice that they have given us, mā shāʾ Allah. As our moderator, Chai Shaojin, has said, I want to try to engage some of the medical doctors here on this panel, so that they have something also to contribute and discuss in shāʾ Allah.
At Darul Qasim, an Islamic educational institution that I founded, alḥamdulillah, we have a medical group of 20 healthcare professionals from varied specialties, who work with us on bioethics and it is a dedicated group, mā shāʾ Allah. We do understand the urgency of Islam and Islamic Law when it comes to every issue in life, including the afterlife. I am going to talk to you straight up about this, and see if we can help each other, to understand how I think Islamic bioethics should in shāʾ Allah be implemented in this pandemic.
So I just want to say, as a preamble, that in matters of taqlīd (uncritical faith) we do not follow Abū Ḥanīfah necessarily in the furūʿ — the subsidiary conclusions, we follow Abū Ḥanīfah r only in his uṣūl (principles), and in his methodology, that is what the madhhab (School of thought) is. We still need his usūl, because we are not smart enough to go into the nuṣūṣ and create the uṣūl ourselves. The uṣūl are of two types, first are those that are acontextual that lead one to the ḥukm (ruling) in the madhhab, these consist of the Qur’ān, Sunnah, Ijmā’ (consensus), and Qiyās (legal analogy), and the second are those that are contextual. So when we use the contextual qawāʿid (legal maxims), secondary considerations, then we are able to use that for dispensing – using the medical term – dispensing a fatwāʾ, which is very different from the actual ḥukm (ruling) in the madhhab.
So, in times of need and pandemics and desperation, a Muftī is allowed to give you a fatwāʾ, where he is going to consider what Dr. Sano & Shaykh Rizwan were saying about the maqāṣid (beneficial purposes): that life is facilitated. That does not mean to say that it is the actual ḥukm rule in Islam, because the actual rule in Islam takes an ideal. What is the ideal in Islam? What is the ideal in Islam regarding pork? What is the ruling on pork? What is the ḥukm on pork? It is ḥarām (prohibited). Period.
If, God forbid, there is a situation where somebody is dying and he needs to eat a little bit of pork:
– غَيْرَ مُتَجَانِفٍ لِّإِثْمٍ ۙ فَإِنَّ اللَّهَ غَفُورٌ رَّحِيمٌ –
(al-Mā’idah (5):3)
‘Without going towards sin, then there will be no sin on him.’ But it does not change the ḥukm; the ruling on pork still remains that it is ḥarām. In this contingency, which has allowed for that one particular person to consume enough so that it saves his life. The wording of the verse, “indeed, Allah is most-forgiving and most merciful” shows that the particular person is not sinful.
((اَلْضَّرُوْرَةُ تُقَدَّرُ بِقَدَرِهَا))
(Dire Necessity is determined by it’s direness)
So there is a difference between what we believe is the ḥukm, the ideal ruling on an Islamic issue, and what is a contingency, and thus what is dispensed for a person in a particular situation.
So, we must make a distinction between the two, if we want to progress. I will try to give you an example in this pandemic. There are many doctors in the trenches, they are dealing with COVID-19 patients day after day after day. Some of them were a bit concerned that their hospital administration may ask them to shave their beard because the protective mask did not fit properly and thus there may be a certain danger if they keep their beards without having a properly fitting mask.
The way we need to address this, is to first of all rethink how we frame the question. One is what we call here a ‘reactive approach’ that “I am being asked and forced to shave my beard otherwise I cannot do my job”. That is a very reactionary approach.
The proactive approach would be to frame the question as “I am a Muslim, I want to practice the sunnah, I love the Prophet g, can you give me a suggestion as to what I should do without
“غَيْرَ مُتَجَانِفٍ لِّإِثْمٍ”
(i.e. without conceding sin).
And that is why I framed a phrase in bioethics “first do no harm” and then, with a Muslim, “first, do no sin”. No harm, no sin. They go together in the Islamic bioethics. So that (“do no harm, do no sin”) should be at the top of where you want to understand and appreciate our philosophy towards Muslims and Islamic bioethics. We have to ensure that we are in line with the maqāṣid– the objectives, but, at the same time, that we are also in line with the ʾĀkhirah (Hereafter). Because, we cannot detach the ʾĀkhirah when you talk about Islam. And that is why we have the distinction in the usul between what is context and what is content.
Islam considers contingencies as part of its legal structure. There are rukhaṣ— concessions, that Islam gives that if you are in Ramadan and if you are sick and are not able to fast, then you may not fast
وَمَن كَانَ مَرِيضًا أَوْ عَلَىٰ سَفَرٍ فَعِدَّةٌ مِّنْ أَيَّامٍ أُخَرَ
(al-Baqarah (2):184)
This is included in the body of jurisprudence. You do not need to go outside of the body of jurisprudence to get that concession or dispensation.
As new cases arise in this pandemic and – it is a very novel situation – and I agree that in this case there perhaps is not – to Dr. Sano’s point – I don’t think there is a maqīs ʿalaih (correlated narration), or precedent in Muslim history for this pandemic. I think this is a very novel situation and we must use every tool available to us to come to certain solutions. But the solution should be considered only as twofold. One is a contingency plan, that you dispense a Fatwāʾ. “In this case, it is allowed”. That is at the micro-level.
What I want to talk about today is the macro-level. What is the macro approach of the scientific community towards curing and healing? That is where I believe we, as Muslims, need independent thinking and creativity. We need to do more than just say “concede to the status quo” and then let people live their lives assuming there is no alternative and there is no ḥalāl solution. For that, confidence in Islamic knowledge and tradition is must. And so too is the belief that ḥalāl for healing are best for all people universally.
Let’s take a step back. Adhering to the philosophy of Islamic medicine requires us to ask what can the scientific community do, as Muslim scientists, physicians and healthcare professionals, to make ḥalāl available. If there is a ḥalāl solution, or if there is no immediate ḥalāl alternative, then what do we do at the philosophical level? What do we do at the epistemological level? What do we do at the state (government) level to make sure that we facilitate Muslims to dispense and consume ḥalāl? Just as it is binding on a government to develop the infrastructure for ḥalāl jobs and ḥalāl earnings, likewise it is binding on the Muslim government to develop the infrastructure where there is ḥalāl sources and means of cure and healing.
So let’s look at some applications outside of the pandemic. If we look at embryonic stem cells – is there a ḥalāl alternative, in the industry? There is possibly a ḥalāl alternative, adult stem cells. What is that? Using live stem cells from the person himself or herself, and that will make it very very ḥalāl. So now we don’t need to ask the question: are embryonic stem cells ḥalāl or not? Because that is a defeatist attitude.
If there is a vaccine that only has ḥalāl ingredients and you have another vaccine, which has ḥarām ingredients, then there is no reason why you should use the haram vaccine. It makes no Islamic sense.
Consider kidney transplantation. Why are you asking the question is organ transplantation ḥalāl, when you haven’t looked into the idea of providing a ḥalāl alternative in the first place? That comes down to the government, to the medical community and the scientific community, that they need to think creatively, beyond acquiescing to the status quo. The industry has provided us a means of cure but it does not mean that cure is the only answer. Many take a utilitarian view or approach to fiqh in these situations. But if you are taking that approach, have you also considered the negatives of transplant, such as postoperative complications, immunosuppression, organ trafficking and how do they factor into a discussion of harms and benefits.
The amazing scientific and medical talent that the Muslims have in the US and in the world is mind boggling. It is stupendous, we have doctors who run hospitals, we have, on this forum at Darul Qasim, doctors who are the cream of the crop in their profession. They don’t need to acquiesce to the status quo, they don’t need to be defeatists. They can be creative. All they need is somebody to say “Okay, I am going to fund you to find the ḥalāl alternative,” where we do not ask the question ‘Is this ḥalāl or not’? Because that question itself is defeatist at the macro level.
I am not talking about fatwāṣ today. Obviously if somebody is dying, and he wants an organ transplant, or a blood transfusion, the Muftī is not going to say “kill him”. He is not going to do that because that is contingent, that is a dispensation, it is a pill, it is a prescription, but it is not the actual ḥukm (ruling), it is not the cure.
Muslims have to go a step beyond what is available in the market, in the industry and then realize that we do have a responsibility, both as a jurist and as a medical scientist, to provide ḥalāl, from the get go. From the very beginning, we must think this way, that we are responsible for providing ḥalāl medicine and ḥalāl means of cures independent of context.
Instead, in the current environment we go in a reactionary way to the Mufti, “in this situation what can you do for me”. The Muftī, miskīn, is going to say, “my hands are tied”, you want to save your life – Dr. Sano, Shaykh Rizwan – they say that the priority is with life, the priority is not with Dīn (religion), which in these circumstances, is perhaps understandable.
But at the macro level, the science behind it, and the legal jurisprudence behind it, demands that Muslims advance and simply do not give in to the status quo. Look for instance at smoking. If there was jurisprudence/fiqh, and then the doctors got together, and they started advertising the harms of smoking in Muslim communities, that would make a tremendous impact. Imagine the reduction in the number of lung cancer patients and the number of complications you see there. That requires a community effort, that requires a different mode of thinking, that requires that you think in preventive measures, which are much better than trying to cure something after the fact.
Consider liver transplantation. Smoking is a universal problem, but alcohol is also a universal problem, and many patients that come for liver complications are based on consumption of alcohol. If you want to lead a campaign from the ‘al-amr bi ʾl-maʿrūf wa ʾl-nahy ʿan ʾl-munkar’ (inviting towards good and prohibiting evil) perspective, then we are also obligated by the Qur’an to prove the maʿrūf in not drinking, and prove the munkar in drinking alcohol. That is our responsibility as an ummah. Everybody who has a stake in this ummah should consider that they must do something; whether through advertising, education, testing, generating and analyzing data, performing utilitarian studies, whatever it takes. We have to drive the point home, that we cannot allow society to kill itself, just because somebody wants to have fun. Because if you don’t, then you face the consequences. One of the consequences of rampant alcohol consumption is the question “is liver transplantation ḥalāl?” But you see, you haven’t addressed a cause – you are addressing the consequence. The end result is that the Muftī will say “fine if that’s what you have to do, then that’s what you have to do”. But what does that mean for this society, what does that mean for the government, what does the mean for the medical community? The medical community has to come up with a safe standard of life, so that they are engaged with Muslim thinking.
We are independent, we do have an independent philosophy of healing, we have civilizational values, based on the millat (religion) of Ibrāhīm n and ummah (nation) of Muhammad g. These Islamic civilizational values are superior. In this pandemic, one of the issues that came up is, washing. Washing hands, constantly, frequently. All the Muslims I talk to, they joke, well Muslims have to wash their hands at least five times a day (for Ṣalah). Also when they use the washroom, they are washing their hands. So a Muslim is washing hands at least 10 times a day because of the universality of our hygiene, our oral hygiene, personal hygiene, the hygiene of the place where you pray. These are all the Sharīʿah of our Ṣalāḥ. These are all the prerequisites of the salah, meaning we cannot go into ʿibādah without being this clean. This has to be promoted as a civilizational value and when you come into contact with people “this is what we do, as Muslims we have always been raised to think clean, to be clean, we are hygienic”. There are so many references in the ummah of the past, you look at Muslim Spain, Turkey, other places in the world and you will see nothing except hygiene in the culture that inspired other contemporaneous civilizations.
We must appreciate that we should be on the offensive, not on the defensive, when we are promoting Muslim/Islamic bioethics. It is superior. We must share this with other people. The only way you can do that is if you think that way from the beginning. If you don’t think that way, you are never going to get there because you have already acquiesced, resigned, submitted (to use the word Islam)– you submitted to the status quo. You are saying to everybody in the world “this is the only solution we have”. I am saying, loudly and clearly, “No! That is the last resort, it is not a solution.”
Let’s look at another example, porcine heart valves – we do not need them if there is a ḥalāl alternative. Yet another example, is the drug – heparin. So I was in a Muslim country, talking about Muslim bioethics, and they could not for the life of me, see that for generations they had been using porcine heparin knowing there is a ḥalāl alternative, just because they were not thinking Muslim. That is where the ʾĀkhirah ties in with the jurisprudence. That, if there is a ḥalāl alternative to porcine heparin, then why are you dispensing this ḥarām? You do not need to. There is no jawāz in fiqh for you to do that. You have here, chicken and you have here pork. Just because the pork is available, doesn’t mean that we can overrule all our qawāʿid, all our maqāṣid, and all our rules of fiqh and say ‘no in this circumstance because there is a contingency, you are going to go with pork even though the chicken is available.’ That is ludicrous! You cannot do that!
What I am saying in principle, that at Darul Qasim, when we study Islamic bioethics, we want to make it purely Islamic, that is based on a philosophy, based on a model, on a paradigm, on a epistemology, so that we get to understand, what is the ideal ḥukm for the state, for the Muslim ummah, irrespective of contingencies. Contingencies we already accommodate by default, because those are contingencies. That is already part of law. So we don’t need to beat the drums of maqāṣid or beat the drums of legal expediency. What we need to do now, in this pandemic, and perhaps as a result of this pandemic, is come together on one platform as medical scientists, and jurists, so that we define for the ummah that there is a viable ḥalāl treatment and cure. As the Prophet informs us, that when Allah sends an illness, He sends down with it a cure.
Now it is up to Muslim scientists to go and look for the (ḥalāl) cure. They have to be proactive and use their collective intelligence. And as I said, some of the panel members here, they are also in the USA, they understand the genius that we have within Muslim scientists and physicians in this country. They are smart people, they can do this, they don’t need to think outside the box, they create a better box. They create a halal box.
Make the box bigger so you include what is ḥalāl. For now, in your dispensation, you unfortunately have to resort to haram, when you don’t find ḥalāl alternatives. So it is my sincere advice and hope that we all come together, on one platform, and try to understand, who we can be as an ummah:
كُنتُمْ خَيْرَ أُمَّةٍ أُخْرِجَتْ لِلنَّاسِ تَأْمُرُونَ بِٱلْمَعْرُوفِ وَتَنْهَوْنَ عَنِ ٱلْمُنكَرِ وَتُؤْمِنُونَ بِٱللَّهِ ۗ وَلَوْ ءَامَنَ أَهْلُ ٱلْكِتَـٰبِ لَكَانَ خَيْرًۭا لَّهُم ۚ مِّنْهُمُ ٱلْمُؤْمِنُونَ وَأَكْثَرُهُمُ ٱلْفَـٰسِقُون
(Āl ‘Imrān (3):110)
You are the best nation that has been brought out for the people; you command the maʿrūf (that which is known to be good), prohibit the munkar (that which is known to be evil), and believe in Allah. Had the People of the Book believed, it would have been better for them. Among them are belivers, [though] most of them are wicked.
The maʿrūf is ḥalāl, the munkar is ḥarām. We cannot allow people to be defeatist and reactionary and say no. No. When you go back to work today or tomorrow, you are going to dispense that ḥarām pill or perform a ḥarām procedure or whatever because you do not have a ḥalāl alternative. That is fine for the moment at the micro-level. It is not fine at the macro-level — why? Because we are burdened by Allah and we are held responsible to show the world that we have maʿrūf, and we have munkar.
We must think as an independent body of scientists, it should be totally abstract and totally independent of all other morals and paradigms and philosophies, to find ḥalāl cures. You will be surprised as to how scientists in other places in the world do come together and find a cure. If we do this, we won’t need to go to the mufti and ask him “is this ḥalāl or not?”. We should get rid of the attitude, totally, because you know modern day medicine makes my life very difficult.
Why? Because you are always promoting ḥarām in front of me. What you ask is, “is this medicine haram?” What do I say? You are going to save the life. Bismillah, save the life. You see that? But before, Muslims were careful as to how they manufactured medicines and what kind of idea and philosophy they bring to the table for healing. Allah is al-Shafīʿ. Allah is the one who heals. He is the one who cures.
We have the perfect role model of a healer in ʿĪsā. Muslim doctors and non-Muslim doctors, they cannot do what ʿĪsā did. What he did, is that he revived the dead. In the Qur’an does it not tell us
وَرَسُولًا إِلَىٰ بَنِي إِسْرَائِيلَ أَنِّي قَدْ جِئْتُكُم بِآيَةٍ مِّن رَّبِّكُمْ ۖ أَنِّي أَخْلُقُ لَكُم مِّنَ الطِّينِ كَهَيْئَةِ الطَّيْرِ فَأَنفُخُ فِيهِ فَيَكُونُ طَيْرًا بِإِذْنِ اللَّهِ ۖ وَأُبْرِئُ الْأَكْمَهَ وَالْأَبْرَصَ وَأُحْيِي الْمَوْتَىٰ بِإِذْنِ اللَّهِ ۖ وَأُنَبِّئُكُم بِمَا تَأْكُلُونَ وَمَا تَدَّخِرُونَ فِي بُيُوتِكُمْ ۚ إِنَّ فِي ذَٰلِكَ لَآيَةً لَّكُمْ إِن كُنتُم مُّؤْمِنِينَ
(Āl ‘Imrān (3):49)
And, [Allah will make him] a messenger [for] the Banū Isrā’īl [saying] that: I have surely brought to you a sign from your lord; that I fashion for [your guidance], from clay, [something] like the form of a bird; then I blow into it, and it becomes a bird by the leave of Allah. And, I cure the congenitally blind and the leper, and I revive the dead by the leave of Allah. And, I inform you of that which you consume and that which you store in your homes. Indeed, in that is a sign for you, if you are believers.
What I am saying is that the Prophets have hidāyah and are our role models and when we look into the Quran and we find this role model in ʿĪsā. If patients and patience, then you have the role model of Ayyūb. Ayyūb is the perfect role model for patients.
When you find guidance in waḥy then you must use that as an aṣl— as a foundation, as a launching pad and go with it. Bismillah. I think the more that we promote this idea I think the more confidence we will gain, and the more we will be in line with Muslim thinking – you are the best nation and the proof is in the pudding.
Courtesy of Darul Qasim
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