Interface of Science and Jurisprudence: Dissonant Gazes at the Body In Modern Muslim Ethics more

Interface of Science and Jurisprudence: Dissonant Gazes at the Body in Modern Muslim Ethics Ebrahim Moosa Chapter 13 In the classical and post-classical periods the discipline of Islamic jurisprudence was relatively in tune with the scientific discourses of the day. Jurists (fuqahab) who were not averse to the “foreign sciences” (cilm al-awabil) ably demonstrated in their legal judgments that they were familiar with scientific disciplines of the day such as astronomy, anatomy, alchemy, physics, mathematics, and geometry. The practitioners, namely the jurists, of the sciences of jurisprudence (usul al-fiqh), and the science of positive law (fiqh), accepted the working assumptions adopted in the field of science as a reality and there were rarely any major misfits between the two. On the occasion when there was tension it was often resolved in a creative and amicable manner. Most jurists of the classical period, for instance, insisted that in determining the lunar calendar, sighting the crescent with the naked eye was preferable in keeping with the report of the Prophet. A minority of jurists however declared astronomical calculations to be sufficient and a more accurate determination of the calendar.1 Thus, the position of the Shafici school of law, while advocating the view in favor of naked eye sighting, also allows those who know astronomy to follow the certainty of their observations achieved by empirical means. Hence, people who hold such knowledge can actually proceed with the rituals associated with the lunar calendar that was determined by scientific calculations. While it is not my purpose to exhaust the examples of the interface between science and jurisprudence in the classical period and later, from the single example provided one can 330 God, Life, and the Cosmos infer that there was some semblance of epistemic coherence between jurisprudence and science. In the modern period this epistemic coherence between Muslim jurisprudence and science is no longer evident. Several factors can be attributed for this breakdown. Among them is the fact that since the 18th century, Western scientific advances raced ahead, especially in the 20th century, while science education in traditional Muslim institutions was still focused on Euclidean geometry and pre-modern science. In the 20th century science was gradually removed from the syllabi of those institutions where Muslim jurists were trained. So it is not surprising to see an Indian Muslim author of a traditional bent comment, in 1907, that the claim made by science that all life originated from ether and motion was a claim contrary to religion. Although the writer Muhibb ul-Haqq cAzimabadi was no doubt combating a version of evolution, he was not in principle hostile to science.2 He actually believed that true science would be in harmony with religion. “Science seeks causes and religion seeks truths”, he commented.3 In addition to the peculiar perception of scientific processes, cAzimabadi and others also viewed science in the same light that medieval Muslims viewed Greek philosophy, called falsafa qadima. Just as Muslims developed an analogous dialectical theology (cilm alkalam) to that of Hellenism, there is an expectation that modern Muslims have to develop something analogous to modern science. In other words the defenders of Islam in the early 20th century had the unenviable task of refuting modern science based on empirical positivism with abstract logic and pre-modern philosophy. Long before the modern period already, the epistemological estrangement between science and the religious sciences, especially law and theology, took place in Muslim societies. The exploration of the causes for this will have to be pursued elsewhere. Suffice it to say that the inherited sciences of religion in Islam and the modern natural sciences share very little in common in epistemological terms and hence the possibility of dialogue is limited. When Islamic law is forced into confronting issues of a scientific nature the conversation is marked Interface of Science and Jurisprudence 331 by the radical differences in assumptions, forms of reasoning, and perceptions made by each “language”: the language of science and the language of religious law. This chapter looks at the way contemporary Islamic law looks at the human body in the context of modern biotechnology. The earliest debates in Muslim jurisprudence relating to the human body in the modern period emerged in the context of autopsies or post-mortem investigations. At first many Muslim scholars and jurists objected to such invasive surgery of the corpse. Disfiguring a corpse was seen as violating the dignity of the dead and thus objectionable in religious terms. However, as the social benefits of autopsies became more evident and necessary to modern life, where autopsy results can for instance assist in apprehending a criminal and determine the cause of death, the initial resistance to such medical practices gave way to permission. Today, there will be very few Muslim jurists who would oppose autopsies on legal grounds. On this one issue, over a matter of time modern Muslim jurisprudence and medical science began to find a common epistemic vocabulary. With the possibility of more advanced forms of medical technology becoming more readily available such as organ transplantation surgery, Muslim jurists are faced with the prospect of having to deal with issues of greater scientific, ethical, and legal complexity and sophistication. With the advent of transplant surgery and brain-stem death, the earlier controversy about invasive surgery to a corpse in the case of autopsies pale in significance. These issues now involve complex ethical questions about the donation and reception of organs to living persons, but with it also comes the prospect of new definitions of death. In short, scenarios that may once have been in the realm of science fiction are increasingly becoming part of our existential reality. In addition, organ donation procedures have also developed in complexity. In the past, organs such as corneas were taken from cadavers. Now with advanced technology, organs are harvested from human bodies that visibly appear to have some form of life, albeit by means of life-support apparatuses, but are medically 332 God, Life, and the Cosmos considered to be brain dead. These changed scientific perceptions completely undermine the inherited perceptions, understandings, and definitions of “life” and “death” to which Islamic jurisprudence and ethics had been accustomed. In order to explore some aspects of contemporary Muslim thinking on bioethics and the body, I will analyze a few legal opinions issued by contemporary Muslim jurists on organ transplantation and brain death. By doing a close reading of these opinions, I hope to present the different kinds of legal and religious logic that these statements reflect. The opinions are no doubt diverse and sometimes diametrically opposed to each other. This chapter does not claim to exhaust the analysis of legal arguments employed by the jurists. The discussions of legal arguments are minimal where possible in order to demonstrate the interface of science and law and the nature of the conversation that takes place. Some of the issues that are explored include questions such as: What do these rulings on bio-medical issues tell us about the kind of scientific gaze from which modern Muslim jurists approach these very complex issues? What informs the gaze of the jurists? Do the presumptions of pre-modern Islamic law inform that gaze? If that is true, then how do jurists in the modern period mediate that pre-modern gaze in their thinking and rulings? Do these legal narratives reflect existing narratives about the body in Muslim thought? How do these statements of normativity reflect different representations of the Muslim “self”? What kind of preliminary conclusions can we draw about how the body is imagined in modern Islamic discourse? In the late 1960s and late 1970s two opinions were issued on the topic of organ transplantation in two different parts of the Muslim world. These opinions were issued by what some would call “mainstream” Muslim authorities. For the purposes of this chapter I Interface of Science and Jurisprudence 333 will use the term “traditional” Muslim thinkers as it is more appropriate. The first fatwa to be analyzed in this paper was issued by jurists in Pakistan, most of whom were affiliated with the Deoband school.4 In the Pakistani context, the fatwa on organ transplantation was preceded by a juridical consultation by the Research Council on Contemporary Issues headed by Mufti Muhammad Shafic and Mawlana Yusuf Binnawri. A fatwa is a non-binding legal opinion issued by a mufti (jurisconsult) in reply to a question. The fatwa was endorsed by six senior members of the Research Council in 1969 while the main signatory was Mufti Muhammad Shafic, a reputable and highly regarded scholar-jurist in Deobandi circles in the Indo-Pak subcontinent.5 The second opinion on organ transplantation was in the form of a fatwa, issued by the Dar al-Iftab, in Egypt. The Dar al-Iftab is an autonomous body that falls under the Ministry of Religious Endowments (Awqaf) and Religious Affairs in Egypt. The mufti, has regularly been a scholar whose credentials were acceptable to the alAzhar University, one of the oldest Islamic universities in the world. The Egyptian fatwa, was issued by Shaykh Jad al-Haqq cAli Jad alHaqq, in his capacity as mufti of Egypt in 1979.6 He later became the rector of the famous al-Azhar University. The discussion on brain death was undertaken by the Academy of Islamic Jurisprudence (AIJ). The AIJ is a specialist committee of the Organization of Islamic Conference, a pan-Islamic body. In 1986 the jurists serving on the AIJ held a special consultation on brain death. What is of interest is how the various positions held by the jurists were justified. Their arguments disclose the manner in which issues such as the body and death are imagined within modern Muslim jurisprudence. In this sense it adds to our exploration of the manner in which religion and science have an encounter of some sort. 334 God, Life, and the Cosmos Pakistan Opinion The Pakistani jurists declared organ transplantation to be prohibited (haram) in terms of Islamic law. This ruling has not been repealed by any subsequent decision in the Pakistan context. Two subsequent consultations of experts and religious scholars in India, in 1989, and another in Pakistan in 1995, have raised questions about the status of the earlier fatwa. The 1995 consultation in Pakistan could not get the ulema to agree on a ruling that permitted organ transplantation, although some individual scholars thought it was permissible. Interestingly, the 1989 Islamic Fiqh Academy of India issued a ruling that under extreme circumstances and life-threatening conditions a Muslim may receive an organ, and only live-donor donation of organs, such as kidneys, are permitted – since a person can survive on a single kidney.7 To return to the Pakistan fatwa, the argument rested on the reasoning that organ transplantation transgressed the absolute inviolability of human dignity (karam wa hurma). Further, the scholars applied the legal maxim that repelling harm (darar) took precedence over the acquisition of any potential benefit.8 In arriving at their decision, the Pakistani jurists took cognizance of several arguments within Islamic law. Their key arguments hinged around several issues: 1. Considerations of legal philosophy and principles. 2. The prohibition on consuming expressly prohibited substances as a remedy and their use under extreme circumstances of need. 3. The irreducible inalienability and dignity of the human body from being expendable. The Pakistani ruling also integrated issues of law with considerations of moral philosophy and metaphysics. At the outset the ruling assumes that organ transplantation is highly problematic in so far as it violates the dignity of the human being. However, it does briefly consider transplantation as a remedy. Hence the next step is to Interface of Science and Jurisprudence 335 test the validity and permissibility of the remedy in terms of the criteria of Islamic law (fiqh). The ruling then creates two categories of needs or necessity: (1) Primary necessity (daruri); and (2) a secondary necessity (haji). A primary necessity is one where a person is confronted with a life-threatening danger where such danger is declared with certainty by qualified medical experts. In such serious contexts there is a wellknown legal maxim stating that “necessity lifts prohibition” (al-darura tubihu bl-mahdhurat). A secondary necessity is a non-emergency condition (ghayr idhtirari). For the treatment of a secondary necessity, the remedy should not violate an explicit prohibition found in the Qurban such as wine, carrion, pork, and blood. If the remedy for a secondary necessity violated a source and authority lesser than the Qurban, the ruling deemed such violation tolerable. Neither does the ruling see any curative value in prohibited substances following a prophetic report that states, “Allah has not provided a remedy in those things that are prohibited to you”.9 Prohibited substances can only be used as medication if it passes a three-point test: (1) that the remedy only be applicable to cases where there is a life-threatening danger; (2) the danger to life must be known with certainty and be an “actual” danger and not a potential or suspected threat; (3) a medical practitioner should conclusively establish the curative value of the use of the prohibited substance. After taking into account the social reality, the need for treatment as well as the legal arguments developed within Islamic jurisprudence, the ruling concludes that organ transplantation is not permissible (na jabiz). The reason it supports this decision is that, while it admits that there are beneficial aspects to organ transplantation, there are also elements of unforeseen harm (darar) to the religious, individual, and social dimensions of human existence.10 In ignoring the harmful aspects of transplantation humanity can be exposed to unforeseen perils, the ruling argued.11 The imperative to repel harm prior to the acquisition of benefits is scrupulously adhered to in this ruling.12 According to the Pakistani jurists, human bodies are a “trust” 336 God, Life, and the Cosmos (amana) from God and as such human beings do not have the unfettered discretion to the use of their bodies. Not even consent to donate one’s organs is permissible. The ruling emphasizes that transplantation would indiscriminately open up the ethical floodgates that could lead to the slippery slope of large-scale abuse and the sale of human organs. A specific fear was that the rich would exploit the poor in order to purchase their organs. On the grounds of the violation of human dignity and the imperative to avoid harm, the impurity of severed organs, and the prohibition of consuming human flesh, the ruling by way of argumentum a fortiori (bi daraja awla) deemed organ transplantation prohibited. The ruling in fact proposed that alternative medical practices such as prosthesis, artificial substitutes described as “plastic surgery”, and reconstructive prosthetic devices be explored as remedies to transplantation.13 Egyptian Opinion The centerpiece of the Egyptian fatwa is that the issue of organ transplantation does not have any precedent in law and thus is a matter open to juristic discretion (ijtihad) ab initio. Any decision would have to take into consideration policy concerns about what course of action best considered the “dominant public interest” (ricaya masalih al-rajiha) or common good.14 The approach of this fatwa is that in the absence of any prohibition the doctrine of “original permissibility” (ibaha asliyya) applied to transplantation. Drawing on opinions from the Hanafi, Shafici, and Maliki schools, the fatwa argues that organs severed from a body are not defiled and advances the view that a believer’s body cannot be permanently defiled whether living or dead.15 Faced with a life-threatening danger it was even permissible to eat human flesh. By means of interpretation the fatwa managed to resolve some of the issues that concerned the authors of the Pakistani ruling. One such issue was a report (hadith) of the Prophet stating that breaking the bones of the dead was like breaking [the bones] of the living.16 The Interface of Science and Jurisprudence 337 meaning of the report, the fatwa explained, was to stress the dignity attached to a corpse and that this report could not have prophesied against organ transplantation. The report in question, the fatwa explained, stemmed from the Prophet’s reproach to a gravedigger who tried to force a corpse into a narrow grave by breaking the bones. Disapproval of such undignified behavior toward the dead was the context for such a report. The Pakistan ruling cited the same report in support of its argument against transplantation, without providing an interpretative framework for the report. The fatwa also explored several analogous precedents that may in some sense resemble elements of organ transplantation. The ruling cited the permissibility of a procedure akin to cesarean-section to remove a full-term viable fetus from the womb of a mother who died in labor. It also argued that past jurists allowed a valuable to be retrieved from the belly of a dead person by way of invasive surgery. Given the permissibility of invasive surgery to dead bodies and the purity of severed organs, the fatwa established grounds of comparison with organ transplantation. From these remote precedents the author of the Egyptian fatwa extrapolates a very useful principle that cogently supports the philosophy behind transplantation: Securing the dignity of the living and their life/lives is preferable to securing the dignity of the dead.17 Enumerating the various analogues to procedures remotely resembling elements of transplantation the fatwa argued that by way of argumentum a fortiori there was an even greater reason to approve the permissibility of organ transplantation. The relevant part of the fatwa read: It is permissible to cut the abdomen of a person and remove an organ or part of it, in order to transplant it to another living body, given the physician’s view based on dominant probability that the recipient (donee) will benefit from the donated organ. [This follows] the jurists’ consideration of the preponderant public interest, that ‘necessity lifts prohibition’ and that a ‘greater harm can be offset by a lesser harm’ and these are authoritative 338 God, Life, and the Cosmos [principles] derived from the noble Qurban and the sublime Sunna (tradition of the Prophet).18 From the evidence provided it appears that the fatwa only sanctioned cadaver donations or live kidney donations. The Egyptian fatwa did not address the crucial issue of brain-stem death. Besides cadaver and donor organs used in transplantation, the bulk of the organs harvested for transplantation purposes nowadays involve brainstem death. In fact, the fatwa is explicit that no organ can be removed unless death is determined and specifies the application of the conventional cardiopulmonary test for death: fixed gaze of the eyes; limpness of the feet; bending of the nose; sunken temples; and the turgidity of the skin. If there is breathing, heart, and pulse function then these should be accepted as signs of life. Academy of Islamic Jurisprudence (AIJ)of the OIC Two diametrically opposed positions were extensively debated by the AIJ, after which it adopted brain death as an acceptable definition of death in terms of Islamic criteria. The details of the legal arguments have been discussed in detail elsewhere.19 Muhammad Nacim Yasin, a Jordanian jurist, made a submission to the Academy’s consultation advocating that brain death is permissible in Islam. Other scholars with approximately similar arguments supported him. His argument was that since there were no textual ordinances (nusus, singular nass) offering explicit guidance on this issue, it was a matter that fell in the domain of juristic discretion (ijtihad). In the case of the inception of life, there were textual sources that clearly stated such beginnings. However, in the case of death there was no definitive directive from revealed text. Jurists thus employed customary criteria to determine the instant of death. Yasin is unequivocal in his stating that the issue of brain death is to be primarily determined by medical specialists. Scholars of religion and jurists should work in collaboration with Interface of Science and Jurisprudence 339 medical specialists in order to provide ethical guidelines for such complex practices. Yasin’s view is that human life ends in the reverse process with which it begins. If life begins with the entry of the soul then it ends with the exit of the soul. While we cannot be certain about the operations of the soul, reasonableness and dominant probability provide us with a working certainty on these matters. Muslim scholars had written extensively on issues of the soul. From this we know that in some of its functions the soul is dependent on the body as long as the body is capable of supporting the activities of the soul. Once the body fails to serve as a locus for the soul it departs. Yasin argues further to show that especially in criminology, Muslim jurists made certain assumptions about the instant of death in order to determine the cause of death. These juristic-cum-scientific assumptions were effective in instances where several assailants in a serial fashion perpetrate the crime of murder. In scrutinizing the forensic evidence, Muslim jurists had to make certain determinations about which assailant caused the death and which one only aggravated the injury. Yasin’s point is to show that already in pre-modern Muslim jurisprudence there were juridicoscientific techniques to determine the cause of unnatural forms of death as to when the “instant of death” was, in order to apportion culpability in criminal cases. In all these rulings the jurists were satisfied in making their findings on the grounds of dominant probability (zann) and not on certainty (yaqin). With these discussions Yasin makes two points that will be helpful in his argument favoring brain-death. There is precedent in Muslim jurisprudence that considers death to occur in various stages and that in such cases certainty was not a criteria, rather the probability of evidence was sufficient. The soul’s absence or presence is related to brain function, the seat of human personality. So he is convinced that with the end of brain function, the soul is no longer present and hence death has effectively set in. Signs of pulse, heart beat, and kidney functions sustained by life-support systems are no indicators that the human being is alive. Ashqar, another jurist supporting Yasin’s position states 340 God, Life, and the Cosmos that Islamic law treats a severely injured person on the verge of death, as symbolically dead. Such a person on the verge of death is not included among the legitimate heirs in the event that his father, mother, or child predeceases him or her since the law does not consider him or her among the living heirs in such a near-death condition. Tawfiq al-Wabi makes a detailed submission opposing brain death. Wabi argues from a range of sources, mainly from the Qurban, to demonstrate that when the revealed sources speak of death, they primarily speak of the death of the body. Thus to argue that death is tantamount to the death of the brain would go against his reading of the sources. While he is fully aware of the interdependence of the body and soul, he is critical of the view that reduces the definition of life and death to the presence and absence of the soul. Citing the juristtheologian Fakhr al-Din al-Razi (d. 606/1209), Wabi states that the human body is a composite of several organs and not a single organ. He argues that in the Qurbanic account the prophet Abraham dismembers animals and then returns them to life, to argue that even radical dismemberment or deterioration of a body is not described as death in the revealed sources. In another account the Qurban describes the legendary Seven Sleepers of Ephesus (People of the Cave, Ashab alKahf) to have a death-like sleep, but they were never declared dead. Furthermore, he argues that Muslim jurists never made the mind (caql) and sense perception (ihsas) to be the sole criteria for evidence of life in a body. Both features are not fully evident in infants and yet we do not declare infants dead, he argues. The status quo definition of death by cardiopulmonary indicators provides certainty in the determination of death and thus Wabi argues that the current conventions of determining death should continue to apply. In the end, the AIJ resolved to accept brain death as an acceptable criterion for death. Interface of Science and Jurisprudence 341 Interface Between Jurisprudence and Science It is fascinating to see how pre-modern notions of law, body, and science are employed in a conversation with phenomena of a radically different and utterly modern provenance, such as organ transplantation and brain death, in the discourses of contemporary Muslim jurists. Most notable is that hardly any of the jurists take on board the language of modern human biology and science from which transplant surgery is derived. The primary reference point is the body of law available in the juristic tradition. Only in the AIJ consultation did medical professionals make submissions to the committee to explain what actually took place in terms of brain death. However, there was little evidence in the deliberations of the AIJ that indicated that they took serious notice of the modern scientific bio-medical technology presented to them. It appears that once the jurists grasped what the practice of transplantation surgery or brain-death involved, they translated the concepts into the framework of legal reasoning with which they were most familiar. There is no attempt to align or create coherence between the two different epistemologies, namely that of science and that of Islamic jurisprudence. Jurists on both sides of the opinion, for and against these modern bio-medical innovations, translate these modern concepts and practices into the language of Islamic law. Thus there is also an endless translation taking place within the juridical process. The Pakistani and Egyptians all try to translate the modern practice of transplant surgery into the nearest available and analogous legal ruling for which precedent exists within Islamic law. Surely such a method does indeed allow for the continuity of an intellectual tradition, even if at the expense of bowdlerizing the tradition. In the process the logic of the law is expanded and made sufficiently elastic in order to seemingly solve even the most complex and challenging bio-ethical issues. In extending the law and classifying acts as either permissible or prohibited, the jurists clearly succeed in bestowing a certain legitimacy or illegitimacy to practices such as brain death and organ 342 God, Life, and the Cosmos transplantation. With it comes a semblance of authority and authenticity that they lend to the practices. In fact for many Muslim jurists this ability of Islamic law to solve is a sign of it being “divinely enriched” and comprehensive in its principles.20 The Egyptian lawyer Audah argues that a divinely inspired law has some of the following features: That the principles of legislation as well as the text of [the] provisions must be of such elasticity and universality that they would embrace all the requirements of human society regardless of the lapse of time, societal evolution, and the multiplicity and diversification of human needs. That these principles and texts must be so perfect and comprehensive that they would not fall short in matching the standard of the society at any point in time. In truth, the above logical requirements are inherent in Islamic jurisprudence, and its principles and provisions are universal and elastic to the extreme, and are absolutely far-reaching and perfect.21 Audah’s viewpoint is not an aberration or idiosyncratic opinion. It is pervasive among large sectors of the contemporary Muslim legal community, namely that the perfection of Islamic jurisprudence lies in the elasticity and perfection of its principles. Audah makes the description of a complex and diverse juridical into an a priori statement. Little distinction is made between the rhetoric of ideals and the intellectual rigor that was invested over centuries to create and sustain this juridical tradition. From the issues discussed above we observed how contemporary Muslim jurists mediated their authority via the texts of the legal tradition and in the process either legitimated or de-legitimated social practices. It goes without saying that the existential conditions of the jurists are undoubtedly also part of the mediation process and thus it is not as simple as saying that they become the vestibules for transmitting pre-modern law into modernity. The very condition of modernity itself modernizes the law in one form or another, be it a Interface of Science and Jurisprudence 343 thoroughgoing modernization or minimal modernization. And, perhaps it is through this process and almost indirectly that the tradition of Islamic jurisprudence finds some coherence with the modern episteme, albeit in an unsystematic and non-programmatic manner. One cannot ignore the fact that traditional Muslim jurists live in modern contexts, experience it, and are required to pass a value judgement on the technologies of modernity such as bio-technology and advanced forms of medical surgery. While modernity undoubtedly infuses itself into traditional sites, there is overwhelming evidence that the language and social imagery of the pre-modern legal discourse is alive and well in the modern era. But whether this language performs the same function it played in pre-modern societies or it is transformed by the new context, is moot and needs to be explored elsewhere. The question that arises is whether the jurists and the medical practitioners, as well as patients, share a common set of meanings as to what is meant by “death”, “life”, “harm”, “body”, “human dignity”, and “healing”. My provisional response would be that there is dissonance between the perspectives of the jurists on the one hand, and the practitioners and patients on the other hand; but there is also some overlap otherwise there would be utter mis-communication. These perspectives are generated by different and divergent forms of educational training, cultivation of worldviews, and the respective scientific and moral gazes with which these diverse linguistic communities view realities. Thus, each constituency would also have a different language that represents a slightly different worldview, even if they belonged to the same faith community. One would also often find that different languages co-exist within the same person. A Muslim patient or physician may fully comprehend the scientific aspects of brain death or organ transplantation but may feel ambivalent in engaging in such practices due to their religious convictions. Patients in need of a kidney or cornea have refused transplantation on the basis that their religion prohibited such practices. Others, in turn, would have no such compunctions or would 344 God, Life, and the Cosmos be convinced by an alternative religious argument that sanctions such practices. Returning to the language of the law in the context of modern medicine and the rulings discussed above, one could ask the question whether there is any meaningful dialogue taking place between the language of Islamic law and the practices and philosophy of modern science. From the summarized descriptions of the legal arguments above, one cannot ignore the instrumentalist nature of the discussion in this juridical-scientific encounter. Those jurists who favor organ transplantation (Egyptian fatwa) and those members of the AIJ who approved of brain death, start with the premise that juristic discretion (ijtihad) is required in this matter because of an absence of legal precedent. Even they, nevertheless, feel compelled to find some kind of rationale to bolster their argument by finding analogous precedents in pre-modern practices of Islamic law. So we have surgical delivery of a viable fetus, the purity of severed organs, and the consideration of public benefits that secure the permissibility of organ transplantation in Egypt. There is no detailed discussion of the ethics of transplantation, who decides how organs are donated and transplanted, the sale of organs, the consent of the patient, the ethics of costly transplantation, and high-tech medicine in poor countries lacking in basic health-care facilities. To be fair the Pakistani jurists did raise some of these issues such as the sale of organs. In permitting brain death, the AIJ jurists ruled that since there was no binding precedent in such matters it was an open question. What remained was to make an argument as to the relation between body and soul and to identify the locus of the soul. Once it could be argued that the locus of the soul is the brain and that consciousness is an indicator of brain function, brain death can easily be justified. Those jurists who opposed brain death and organ transplantation used the same texts and sources as their fellow jurists but arrived at an opposing and differing position. Their emphasis was on the social imagery of the body as inviolable in its dignity. This was bolstered by subsidiary legal arguments about the impurity of severed organs in the Interface of Science and Jurisprudence 345 case of organ transplantation. In the case of brain death, the opposition was grounded in a demand for a more holistic account of death and opposed the reductionist view that identified death solely with brain function and the absence of consciousness. The oddity of these analogical formulae will not be lost to more perceptive observers of Islamic law. There is a world of a difference between the surgical recovery of a valuable from the belly of a deceased, or the delivery of a fetus from the womb of a dead mother, and the prospect of donating organs or limbs and having these transplanted onto another human body. The resemblance if any, is tenuous. It is possible that the analogues are meant to serve as persuasive value, rather than adding to any serious formulation of the law. Neither is the legitimating argument of public benefit a persuasive one when there is hardly any exploration as to what contribution organ transplantation makes to society. The instrumentalist approach does not take into cognizance contemporary debates about a whole range of issues that impact on some of these scientific developments. If Islamic law is to be viewed as a tradition-in-the-making, contrary to Audah’s a priori perception of law, then there ought to be some point in which the traditional juristic theories begin to update themselves in order to come to terms with some of the assumptions of the contemporary world; otherwise, Islamic law will remain a bastion of resistance to social change and modernity while its rulings will find very little reception among its followers. Updating the tradition of Islamic law does not necessarily mean the slavish adoption of a specific pattern and model of modernity. We now know that there are multiple modernities and alternative modernities to the hegemonic western model. The very general principles of Islamic law based on the analogical model have their own limitations, arguments that were already well rehearsed in the medieval legal debates. For this reason, Muslim legal theorists devised additional theories in order to deal with new contingencies, not imagined by the founding fathers of the law. Changing conditions accelerated the use of doctrines such as public interest (maslaha) and legal preference 346 God, Life, and the Cosmos (istihsan) with increasing frequency in later generations. Istihsan is the legal technique where dead-end analogy is overlooked and a more workable and practical analogue is employed to end the logjam in legal logic contrary to the established rules. However, a discussion of how exactly Muslim legal theory updates itself and enters into a conversation with the modern episteme would take us way beyond the scope of this discussion. What this section attempts to highlight is the non-conversation that takes place between scientific discourses and religious discourses in Muslim ethics and legal practices. Bodily Cosmology The divergent approaches that the legal arguments (fiqh) yield, forces one to look at broader narratives about the body that may subtly and sub-consciously lay beneath the various juristic gazes of the body. Given that the juristic tradition is intimately tied to the established and diverse Muslim intellectual tradition, it may well be worth exploring what kind of approaches history had bequeathed to posterity on the question of the body. The relationship between the corporeal body and the incorporeal soul or spirit, is one debate that had preoccupied Muslim thinkers from the earliest times. A brief look at the views of the philosopher Ibn Sina (d.1037) and Abu Hamid al-Ghazali (d. 1111) may help us to see if our contemporary perceptions of the body resonate with some of the ideas of an earlier period. Ibn Sina has argued that the soul comes into existence whenever it deems a body fit to be used. “The body which thus comes into being is the kingdom and instrument of the soul”, he says.22 But the body is not the formal or final cause of the soul.23 Rather, the body and the temperaments are accidental or accessory causes to the soul. Thus, as an effect of an accessory cause (the soul) can and does survive the accessory causes.24 The body is not informed with the “form” of the soul, nor is the soul imprinted into the composite parts of the body. After evaluating several arguments, Ibn Sina concludes that “all the Interface of Science and Jurisprudence 347 forms of attachment between the body and the soul have proved to be false and it only remains that the soul in its being, has no relationship with the body but is related with other principles which are not subject to change or corruption.25 From this it follows that the soul is incorruptible and does not die with the body. The soul, according to Ibn Sina, is individuated by the fact of its creation. Even when disembodied it retains its consciousness and the individuality of its history.26 However, Ibn Sina’s naturalism has been the subject of critique. Especially his hylomorphism, in allocating all definiteness and definition to the formal aspect of reality as well as the corresponding assignment of mere passivity and inertness of all matter, makes him play right into the hands of Ghazali. For Ghazali damaged Ibn Sina’s argument of naturalism by showing that all movement or action requires a will in order to initiate such action. Ghazali brings home the point that even the elements of temperament (hot, cold, wet, dry) are inert and not self-sufficient as causes and require something else to activate them into life. In order to explain the miracle of life the philosophers employ the term “formal principles” while the theologians call these angels, and relate these to a realm of spirit and ultimately to God. While Ibn Sina and Ghazali would both agree that the soul is what makes possible the activities of life, growth, reproduction, sensitivity, and motility of animals, as well as the consciousness and rationality of human beings, there remains a difference between the two with respect to matter. The human body is constitutive of matter. It is here that the qualitative difference takes place between the two viewpoints. For Ibn Sina the body is part of a naturalism and enjoys the motions of natural causality. Ghazali, while not denying causality, actually assimilates natural causality to the work of some spiritual principle of divine causation. This divine spark, or this mere theistic “touch” that Ghazali brings to matter, in some way generates a continuity of some of the spiritual substance of the soul and the body (matter), but the two are not identical. While there is a difference 348 God, Life, and the Cosmos between the soul and body in Ghazali’s view, there is an ontological continuity too, a continuity that the philosophers fail to acknowledge. Ghazali is a useful source and informs us how jurists and religious thinkers in the past may have imagined the body-soul relationship. He raises this issue almost parenthetically in the Deliverance (Munqidh) when discussing those philosophers whom he describes as naturalists. They are empiricists who have a deep interest in botany and anatomy, with a special interest in animal anatomy.27 Ghazali is well disposed toward them in so far as their research discloses to them and others the wonders of God’s creation and His unique wisdom as Creator and the perfection of his creation. However, he has some reservations about their overemphasis on the powers that animals possess. The philosophers, he says, believe that the equilibrium of the mizaj, meaning temperament or organism, has a decisive influence on the powers and capacity of animals. They take this point to such extremes in believing that the faculty of thinking is also dependent on animal powers. In his own words Ghazali says: Yet these philosophers, immersed in their investigations of nature, take the view that the equilibrium of the mizaj (temperament/ constitution/ organism) has a profound effect on the existence (qiwam) of the powers of a being. Thus they thought that the human rational faculty is dependent on its constitution (mizaj). So that as the mizaj (constitution) is corrupted, intellect is also corrupted and ceases to exist. Thus when something ceases to exist then it is unthinkable in their opinion that the non-existent should return to existence.28 Although Ghazali’s explicit purpose is to refute the conclusions of this special breed of naturalist philosophers (not Ibn Sina in this matter) for rejecting the immortality of the soul, this statement also discloses something about the relationship of the body and the soul. The point that Ghazali makes is that one should not view the continued existence of the soul, exclusively in terms of its relationship to matter, namely the body. He wishes to refute the crass materialism of the Interface of Science and Jurisprudence 349 naturalists who argue that the soul dies with the death of the body. Although we do make a practical distinction between rationality and body, we must acknowledge that human consciousness or human rationality is just as much a sign of human existence, as a living body indicates life. Ghazali describes the body as the mount, on which the soul rides and strives to gain proximity to God.29 Without the means, i.e. the body, the soul cannot attain its destination. Thus the means (body) is extremely critical to the realization of the ends, namely the perfection of the soul. Even if a distinction is allowed between body and soul, then for Ghazali in the words of Watt, “the body is just as much the man as the soul”.30 Watt explains this to be the monistic or Semitic view of body-soul continuity. Muslim philosophers on the other hand, like Ibn Sina held the dualistic or Greek view according to which humans also consist of the soul and the body; the crucial difference being that to the dualists the body is only the soul’s temporary garment. Ibn Sina and others believed that the body was dispensable and only valorized the soul. Thus, it was relatively easy for them to conclude that the afterlife will not necessarily be a bodily resurrection.31 The philosophers, especially Ibn Sina, argued that the souls in the afterlife would imagine the pleasures and the torments of that realm through the instrumentation of some kind of celestial body.32 Contrary to this view, Ghazali and some Muslim theologians wished to retain the integrity of both body and spirit, instead of making one dependent on the other; thus both the soul and the body are valorized. In the hands of Ghazali the valorization of the body even becomes a symbol in doctrinal matters. Thus Ghazali insists that resurrection will be bodily, in other words corporeal. Prior to him, Ashcari catechism had made belief in bodily resurrection an important plank of its doctrinal formulation. Ghazali championed the same argument against the Muslim philosophers. What we should not lose sight of is how the social imagery of the body surreptitiously makes its way into the doctrinal formulations involving the body. 350 God, Life, and the Cosmos Reading the Legal Opinions Now that we have some sense of the way in which Muslim thinkers analyzed the body, it may highlight the futility of the situation in trying to configure why jurists, employing the same texts and arguments, arrive at different conclusions. There may surely be interpretative differences in jurisprudence itself that may account for such variations in the law, but one can probe further by asking what causes such interpretative differences. It is eminently possible that the monistic and dualist narratives of the body-soul relationship may still be prevalent in the discursive practices of Muslim thinkers and societies. One can easily see a naturalist hand at work in the account of the pro brain death writers in the AIJ opinion, who valorized the consciousness and the place of the soul in their analysis. In the Egyptian fatwa the body is considered dispensable especially if it serves a higher purpose of benefitting fellow human beings. Very little attention is given to the sacred status of the body. In the Pakistan ruling the jurists were extremely reverential towards the body, treating it as sacrosanct, as the soul itself. In fact the Pakistan jurists were not at all unmindful of the relationship between body and spirit and considered the body as much as being human with or without the soul. To continue with my attempt to provide some explanatory matrix for these different versions of Islamic law, we have to return to the function of law in Muslim society. Most definitions of the subject of positive law (fiqh) would describe law as that body of knowledge that informs us of the shariba values. In other words, it is about the application of the values derived from both revealed sources, such as the Qurban and the prophetic tradition, as well as from the socially constructed sources such as consensus and analogy, on which there is general agreement. (There are also a number of controversial sources or instruments of deriving rules from the sources.) In short, positive law provides the rules for good social order and moral conduct. With the assistance of Ghazali we discover that already in the 11th and 12th centuries, sensitive thinkers like him recognized that law performed Interface of Science and Jurisprudence 351 poorly if it was only meant to perform as the external regulator of human conduct. In his own discontent with the jurists of his society, Ghazali in addition to excoriating the legal practitioners of his day, also made us aware that law has to play an additional function. Failing to fulfill this purpose renders law into a mere performance without realizing its desired effects. In his Criterion for Action Ghazali postulates another meaning for fiqh, which literally means “discernment”. He proposes a novel purpose (or not often mentioned one) for the discursive sciences such as fiqh. The purpose of fiqh is to find a reliable manner by way of intellectual exertion (ijtihad) in order to discern the state of the spirit.33 Law does not only have positivistic concerns, but is also ultimately concerned with the state of the soul. It is here that Ghazali provides us with another meaning of faqih, namely the “discerner”. He urges the reader to consider becoming a “discerner of the spirit” (faqih al-nafs) and understand the condition of the soul. To become an expert in understanding the inner realities of the soul and its well being is just as important as understanding the positive law. Discerning the needs of the soul requires practice and application until one develops a habit of understanding the phenomena of the spirit or the law in such a manner that it becomes spontaneous and a part of one’s identity.34 In my reconstruction of Ghazali’s insights one could venture to say that he is urging us to understand the ritual function of the law. The word “ritual” is not meant in the common sense usage in which people dismiss practices as rituals because they are habitual and uncontemplated activities. Nor do I use the term in the functionalist sense in which rituals create societal unity and balance in order to retain the status quo. From Ghazali’s insights, I derive the sense that he believes that the practice of positive law, the ritual of law for that matter, produces a sense of the self, and a sense of self-identity. Ritual action through the law is not an expression of the sacred nor is it a response to the sacred. Rather, the ritual of law conveys a sacrality on a thing or a person. For Ghazali fiqh per se performs its ritual function once it is conceived as fiqh al-nafs, an inner discernment, where the 352 God, Life, and the Cosmos ritual action consists of a series of transactions concerning the self and other, true and false, justice and injustice. In other words, rituals truly performed begin to make a difference between various ethical and aesthetic registers of the practitioner. With the rise of legal positivism, certain interpretations of modern Islamic law too had adopted the positivist framework that undermined the Ghazalian sense of ritual. Johansen has carefully shown that modern 20th century Arab jurists have adapted the legal reasoning of fiqh into a positivist model along the lines of codification and modern national legal systems. In the process, says Johansen, the liturgical acts, the ethical content of those norms which cannot be applied by courts but which address the conscience of the individual believers, their forum internum, in short the religious dimension of the fiqh, has hardly been considered an object of legal reconstruction and would need a completely different approach.35 Johansen’s concerns echoes my reconstruction of Ghazali’s notion of “discernment of the self” as the ritual or liturgical function of the law. In fact one could actually argue that Ghazali develops techniques for ascetizing ritual law. His Ihyab is possibly the most eloquent testimony of such a herculean effort. In the context of the rulings on organ transplantation and brain death examined above, one could argue that the law performs different ritual functions in each context, within the community of jurists and their respective lay communities. The law for that matter reflects and represents different kinds of Muslim “self” (selves) in their peculiar and unique contexts. In other words, the law is also an index of the Muslim self. The variations and differences in the law – legal practices are not so much occasioned by a difference in the interpretation of texts, although that cannot be ruled out – is more discretely produced by the differentiation that law as ritual asserts through the subjects of the law. Interface of Science and Jurisprudence 353 Conclusion In the foregoing I have attempted to show that contemporary Muslim legal practices in the realm of bioethics employ premodern epistemes to address issues emanating from a totally different epistemological perspective. I am skeptical whether there is a dialogue between scientific practices and the juridical legitimation or prohibition of such practices as evidenced in the examples of organ transplantation and brain death. I argue that instrumentalist reasoning does the trick in providing a semblance of engagement. However I have tried to show that the different positions towards the body adopted by contemporary jurists may in greater or lesser measure resonate with broader narratives of bodily cosmologies prevalent in different periods of Islamic history. I tried to identify two such approaches, those of the dualists and the monists. In trying to explain why there are different and variant positions in the law, I employed a Ghazalian insight to make the case that law also has a ritual and liturgical/religious function. The ritual function of law is to differentiate and individuate different subjects. The effect of differentiation also affects those who authorize the law, since they are also simultaneously the subjects of the law. Notwithstanding my attempt to explain the function of the law, I still believe that there is merit in considering the possible scenarios in which Muslim legal theory can be updated and reconstructed so that Muslim legal thought can meaningfully engage with relevant contemporary issues. Notes 1 2 See Ebrahim Moosa, “Shaykh Ahmad Shakir and the adoption of a scientificallybased lunar calendar”, Islamic Law and Society, 5:1, (1998): 57-89. Sayyid Muhibb ul-Haqq cAzimabadi, “Ahle Sayins and Sayins”, in Dacwat al-Haqq (Patna: Matbaca Sayyidi, 1907)14-18, 27-31. 354 3 4 God, Life, and the Cosmos 5 6 7 8 9 10 11 12 13 Ibid., 31. Deoband is a seminary founded in India in the second half of the 19th century, near Saharanpur in Uttar Pradesh. It has since developed into a major school of thought on the Indian sub-continent as well as internationally. Colleges and seminaries affiliated to this school mark the landscape of the subcontinent and other regions of the world. See Barbara D. Metcalf, Islamic Revival in British India: Deoband, 18601900 (Princeton: Princeton University Press, 1982). Muhammad Shafic, Tanshit al-Adhhan fi al-Tarqic bi Acdab al-Insan [Exercising the Mind in Matters [related] to the Joining of Human Organs: In Other Words, Combining Organs] hereafter referred to as Tanshit (Karachi: Dar al-Ishaat, 1972, 2nd edition). Jad al-Haqq cAli Jad al-Haqq, al-Fatawa al-Islamiyya min Dar al-Iftab al-Misriyya, hereafter referred to as Fatawa, fatwa no. 1323 titled: “Transferring Organs from one Person to Another” (Cairo: al-Majlis al-Acla li al-Shubun al-Islamiyya, 1403/1983), 10:3702-3715. Aham Fiqhi Faysle (New Delhi: Islamic Fiqh Academy, 1999), 13. Al-Imam Zayn Ibn Nujaym, al-Ashbah wa al-Nazacir (Karachi: H.M. Sacid Company, n.d), 45. Tanshit, 22. Tanshit, 30. Ibid. Further arguments reinforce the ruling of prohibition. According to the Hanafi school of law organs severed from a body are viewed as defiled (najasa). This is the position of only a section of the Hanafi school but the ruling does not inform us about the status of this view. Furthermore, the ruling argues that past Muslim jurists of the Hanafi school also prohibited one from eating ones own flesh in lifethreatening circumstances while conceding that other law schools deemed such acts permissible, see Tanshit, 14 and 20. Another related issue discussed at some length in the ruling was the question of blood transfusion. This discussion is relevant in so far that it gives us an idea of the underlying scientific gaze of traditional Muslim scholars. The authors of the Pakistan ruling were aware of the anomaly of permitting blood transfusion. One will recall that they followed the Hanafi view that severed organs were defiled and accordingly blood too would be prohibited. The consumption of blood is explicitly prohibited in the Qurban (Q 2:173). Yet blood transfusion is permitted to remedy cases of an “emergency” or “primary” (daruri) type need or necessity. Clearly if there was any analogue for organ transplantation, then blood transfusion could be viewed as a precedent. The legal argument for blood transfusion was constructed on pragmatic grounds. Blood, the jurists argued, was easily transferred and did not involve elaborate surgery nor did it violate human dignity. The analogy for blood transfusion was the use of female breast milk. Past jurists permitted the use of human breast milk for medicinal purposes. Blood transfusion is thus permissible Interface of Science and Jurisprudence 355 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 because it was a choice between the lesser of two competing harms and that necessity had lifted the statutory prohibition on the use of blood. One of the unstated reasons the Pakistani jurists found it easier to permit blood transfusion was that blood was a regenerative tissue, whereas certain organs may not be regenerative. In the context of blood transfusion they also raised a very interesting issue of a psycho-legal and moral nature. The violation of sharica rules had both material and spiritual consequences. There are thus concerns over that the spiritual condition of the donor can be transmitted to the recipient via organs and blood. Non-Muslims, as well as Muslims who are deemed sinful (fasiq) and profligate (fajir) could transmit their negative spiritual conditions to the recipient, see Tanshit, 28. The blood of such persons carry “spiritually impure effects (atharat-e khabitha)” and will have an effect on the moral character of the donee. This view is consistent with established positions within Islamic ethics that a sinful wet-nurse, for instance, could transmit her negative moral and spiritual character to the suckling whom she is breast feeding. Fatawa, 10:3705. Fatawa, 10:3708. Fatawa, 10:3707. Fatawa, 10:3705. Fatawa, 10:3712-13. See Ebrahim Moosa, “Languages of Change in Islamic Law: Redefining Death in Modernity”, Islamic Studies, 38:2 (Autumn 1999); it deals with the opinion of the Academy in great detail. Abdul Qader Audah, Islam Between Ignorant Followers and Incapable Scholars (n.p.: International Islamic Federation of Student Organisations, n.d), 85. Ibid., 27. Ibn Sina, Avicennas Psychology: An English Translation of Kitab al-Najat, Book II, Chapter IV, trans. & commentary by Fazlur Rahman (London: Oxford University Press, 1952), 57. Ibn Sina, Najat, 59. Ibn Sina, Najat, 59 and Fazlur Rahman, Commentary, 107. Ibn Sina, Najat, 61. Len Goodman, Avicenna (London: Routledge, 1993), 128. Ghazali, “al-Munqidh min al-Dalal” in Majmuca Rasabil al-Imam al-Ghazali, Ahmad Shams al-Din (ed.), (Beirut: Dar al-Kutub al-cIlmiyyah, 1409/1988), 35. Ghazali, “Munqidh”, 36. Ghazali, Ihyab cUlum al-Din, Adab al-Mutacallim wabl-cIlm, 5 vols (Cairo: Mubassa alHalabi, 1387/1968), 1:78. W.M. Watt, Muslim Intellectual (Edinburgh: Edinburgh University Press, 1963), 61. Ghazali, Incoherence of the Philosophers (Tahafut al-Falasifa), trans Michael Marmura (Provo, Utah: Brigham Young University Press, 1997), 225. 356 32 33 34 35 God, Life, and the Cosmos Arthur J. Arberry, Avicenna on Theology (London: Jouhn Murray, 1951), 74. Ghazali, Mizan al-cAmal, Sulayman Dunya (ed.), (Cairo: Dar al-Macarif, n.d), 224. Ghazali, Mizan, 253. Baber Johansen, Contingency in a Sacred Law (Leiden: E.J. Brill, 1999), 59.