Hatem al-Haj - Academia.edu (original) (raw)

Papers by Hatem al-Haj

There are many interfaces between fiqh (Islamic jurisprudence) and medicine. After all, the subje... more There are many interfaces between fiqh (Islamic jurisprudence) and medicine. After all, the subject-matter of medicine is the human body, which is tasked with religious duties. The rulings of those duties are the subject matter of fiqh. Fiqh also regulates all human activities of moral value, including the practice of medicine.
Change in the medical field happened quite slowly until the early part of the 20th century, when the pace of advancement began to accelerate until medicine reached its current state of development. Our early scholars of fiqh – may Allah have mercy upon them – did not have access to the medical knowledge that we now have. Many fiqhi rulings rely on the proper knowledge of certain ontological facts, about many of which the physicians of their times differed. These include, for instance, determining the shortest and longest duration of menstruation and pregnancy, the status of intersex persons (hermaphrodites), and the various portals of entry into the “hollow interior” or cavity of the body (jawf), are all legally consequential matters that are largely reliant on medical expertise rather than on decisive scriptural proofs.
Thankfully, much of current medical knowledge and practice is based on experiment and certainty, not on doubt and conjecture. Thus, it is vital to revise any traditional fiqhi positions that had been influenced by outdated medical knowledge. Indeed, such critical but respectful revision is crucial to exonerate the Sharia (Islamic law) without impugning the tradition . Sunni Muslims do not ignore mental axioms (universally accepted propositions) and neither do they ignore the empirical evidence perceptible by the senses. In fact, scholars of all orientations, including textualists and rationalists, reinterpret the apparent implications of the text when such realities contradict the apparent or primary interpretation; they use axioms as well as empirical evidence in judging the authenticity of transmitted reports. Additionally, the fatwa (edict by a scholar) – but not the ḥukm (Allah’s ruling) – may change from time to time and from place to place according to certain guidelines known to those who are well grounded in such knowledge. That is, not by the mere change of time and place, but rather because they are vehicles for the circumstantial variables that would result in the change of a fatwa. For instance, the establishment of paternity through DNA testing should now take precedence over qiyâfah (physiognomy).
One of the issues being revisited is the ruling of abortion based on our better understanding of embryogenesis. It must be remembered, however, that the ‘illah (ratio legis/juris or legal basis) of the emphatic prohibition of abortion in late term pregnancy is dependent not only on embryogenesis, but on the transcendent or metaphysical event of “ensoulment.” Here is a brief discussion of this issue in light of up to date medical knowledge. I begin with the rulings on abortion found in the tradition, according to each of the four major Sunni schools of Islamic thought (madhâhib, sg. madh-hab).

In our times, there is an undeniable crisis in many parts of the Muslim world. There are wars, re... more In our times, there is an undeniable crisis in many parts of the Muslim world. There are wars, revolutions, and insurgencies, impacting millions of children and making them parentless and homeless. I am honored to take part in this conference organized by the International Institute of Islamic Thought (IIIT) and the Fiqh Council of North America (FCNA), in response to this crisis, with the objective of finding Sharia-compliant solutions to alleviate the suffering of those children by affording them compassionate surrogate families who will foster their healthy development. I will be mainly addressing the issues that pertain to nasab (lineage) and raḍâ'ah (breastfeeding). Islam places a great deal of importance in the care of children. In fact, the jurists have listed the preservation of progeny as one of the primary objectives of the Sharia. The Sharia, therefore, is keen to confirm the filiality of every newborn, and it allots several admissible proofs for that. As for orphans who were deprived of one or both of their parents, Islam has made the obligation of caring for them binding on the Muslim community collectively. It has promised a great reward for those who provide physical care for them and treat them with compassion. However, the prohibition of tabanni (translated as 'adoption') seems to have resulted, in our times, in many Muslim families hesitating to take in orphans and raise them as their own children, mainly due to matters related to mingling between them and their own children when they grow to maturity. Also, the uncertainty about the permissibility of going through the legal process of adoption bars many Muslim families from being able to bring orphans into their households. I will try to shed some light on the issue of lineage and its establishment in Islam and the differences between tabanni which involves the concealment of nasab, and which was unanimously prohibited by the scholars, and some current forms of legal adoption in non-Muslim-majority countries like the United States. I will also address the extension of the bond of kinship through breastfeeding: while it does not only apply to orphans, I will show how it serves a great purpose for them in particular. The goal of this paper is to explore ways to facilitate caring for orphans by conservative Muslim families. Nasab Linguistically, nasab (lineage) has several meanings. The various meanings all share its common root, which is the relationship between one thing and another, as stated by Ibn Fâris. Perhaps the meaning most relevant to us is 'filial bond.' As for the technical definition, the jurists did not busy themselves with it as its meaning was clear, and sufficed with mentioning its causes. Some contemporaries have defined it as:

Are non-Muslims addressed by the detailed rulings of Sharia (furūʿ)? And is it permissible to ass... more Are non-Muslims addressed by the detailed rulings of Sharia (furūʿ)? And is it permissible to assist them in committing sins?
This is a significant issue in Islamic jurisprudence that warrants thorough investigation, especially for those who frequently interact with non-Muslims, such as Muslim minorities living outside Muslim-majority countries. There are six opinions on this matter:
1. Non-Muslims are addressed by the furūʿ of Sharia.
2. Non-Muslims are not addressed by the furūʿ of Sharia.
3. Non-Muslims are addressed, but it pertains to punishment in the Hereafter, not a demand of conformity in this world.
4. Non-Muslims are addressed by prohibitions but not by commands.
5. Non-Muslims are addressed only by commands, not by prohibitions.
6. Apostates are addressed, but not original non-believers.
The question posed is complex, and although there's a separation between its components, it's clear that those who believe non-Muslims are addressed by the furūʿ of Sharia would find it more restrictive for Muslims to engage in transactions that may aid non-Muslims in sinning. For better clarity, we can identify three main directions in the answer:
1. Yes, non-Muslims are addressed by the furūʿ of Sharia, and it is not permissible to assist them in sin.
This is the majority opinion among the Mālikī, Shāfiʿī, Ḥanbalī, and some Ḥanafī scholars.
2. No, non-Muslims are not addressed by the furūʿ of Sharia. This group allows Muslims much of what their opponents consider aiding in sin, as long as the Muslim isn't directly involved in the prohibited act.
This is the position of the majority of Ḥanafī scholars. Some Mālikī, Shāfiʿī, and Ḥanbalī scholars also lean towards this in their discussions of legal principles, but they rarely apply it to certain rulings.
3. Yes, non-Muslims are addressed by the furūʿ of Sharia, but it pertains to punishment in the Hereafter, not a demand of conformity in this world. The difference between this group and the other groups regarding the addressing is subtle. Those in the first group in favor of the addressing don't demand that non-Muslims observe religious rituals. However, this third group emphasizes the lack of demand of conformity and strike a balance between the two previous groups, allowing Muslims some of what the second group permits and prohibiting some of it.
This view was held by Imam Taqiyy al-Dīn Ibn Taymiyyah and was endorsed by a group of scholars.

The issue of a Muslim treating a non-Muslim is not new, and vice versa. The field of medicine is ... more The issue of a Muslim treating a non-Muslim is not new, and vice versa. The field of medicine is a shared human endeavor that should not be limited by religious, ethnic, or other boundaries. Muslims and non-Muslims have always treated each other. However, in Muslim countries, it was more common for non-Muslims to treat Muslims. Hence, we don't find detailed discussions by scholars on the rules of a Muslim treating non-Muslims. One reason for this might also be that illness leads to easing of some rules and that many scholars permit using forbidden medicines or most of them when there are no alternatives. Surgical practices in their time were not as they are now. Moreover, many of our jurists do not consider the religion of the patient to be consequential in what is permissible for the doctor to practice, because they consider non-Muslims to be addressed by the detailed practical rulings of Sharia (furūʿ).
In our current era, there are many Muslim doctors in non-Muslim countries treating non-Muslims. The United States is one of the countries where this phenomenon is most apparent. Furthermore, there have emerged, in our time, types of surgeries and medical treatments that were previously unknown.
I was asked to write a paper on the ruling regarding a Muslim doctor prescribing forbidden medicines and treatments to non-Muslims to present at the annual conference of the Assembly of Muslim Jurists of America, and I obliged.
I believe the considerations for this ruling can be summarized as follows: Are non-Muslims bound by the detailed practical rulings of Sharia (furūʿ)? Is it permissible to assist them in sin? What are the guidelines for such assistance and the means to evil to be blocked? Does the abode wherein the act transpires influence these rulings? And do necessity, widespread hardship, and difficulty in avoidance play a role? I have divided the paper into six sections: an introduction and five topics. Here are the titles:
1. What are the forbidden medicines and treatments, and what is the nature of their prohibition?
2. Are non-Muslims bound by the detailed rulings of Sharia law, and is it permissible to assist them in sin?
3. Does the abode wherein the act transpires influence the rulings?
4. Do necessity, widespread hardship, and difficulty in avoidance play a role?
5. What are the rulings in different applications?
I have opted to faithfully present the utterances of esteemed scholars in their original text, laying it at the reader's fingertips. For it is possible that the bearer of knowledge may convey it to one with greater understanding.
Allah is the one to be implored for granting us sincerity and guidance!

كل بني آدم خطاء. هذا قضاء الله على خلقه. لكن الأخطاء تتفاوت تفاوتًا عظيمًا في حجمها وآثارها، فهنا... more كل بني آدم خطاء. هذا قضاء الله على خلقه. لكن الأخطاء تتفاوت تفاوتًا عظيمًا في حجمها وآثارها، فهناك جرائم تزلزل المجتمع حتى إن كانت من مجهولين، وأحيانًا يحصل نفس القدر من الزلزلة عند وقوع ذوي الهيئات، لا سيما المعروفين بالعلم والصلاح، فيما هو أدنى من ذلك، فإن اجتمع الأمران: عظم الخطيئة ومكانة المخطئ في ظنون الناس، فإن الفاجعة تكون أعظم والخطب يكون أجل. ويبلغ الخطب ذروته عندما يكون الدين نفسه وسيلة يتوسل بها حملته إلى انتهاك الحرمات.
هذا، وإن رقة الدين في هذه الأزمنة وشدة الفتن قد تؤديان إلى المزيد من هذه الفواجع، مع ما سهلته وسائل التواصل الحديثة من سرعة انتشار أخبارها، فإذا بالخطيئة التي وقعت في أقاصي الأرض تلف أخبارها المعمورة بين غمضة عين وانتباهتها. يضاف إلى ذلك ما يعانيه المسلمون عمومًا من ضعف في المؤسسات التي يعول عليها في الحد من هذه المخاطر وحسن التعامل معها عند وقوعها والحد من آثارها المدمرة. وأخيرًا، فإن الأقليات المسلمة تواجه صعوبة أخرى، وهي عدم وجود قضاء شرعي والشك المبرر أحيانًا وغير المبرر غالبًا في نزاهة جهات التحقيق وعدالة القضاء الوضعي.
أناقش هنا حالة افتراضية لأسوأ خبر قد يصلك عن طريق وسائل التواصل عن تحرش معلم وقور أو داعية مشهور بطفلة أو طفل أو الاعتداء الجنسي عليهما.
وهذه هي الأسئلة التي نحتاج الإجابة عنها بهذا الصدد:
1. ما هي أهمية حفظ القلب واللسان؟
2. ما هي أهمية ستر غير المجاهر ومن لا يضر إلا نفسه؟
3. ما هي أهمية التبين وما هي درجاته؟
4. متى تحل الغيبة ومتى يحل التشهير؟ ومن المسؤول عن التشهير كعقوبة عند غياب القضاء الشرعي؟
5. ما هو القسط في توزيع المسؤولية بين المجتمع المسلم والمؤسسات والأفراد؟
6. ما هي سبل الوقاية من هذه الخطوب والحد من آثارها عند وقوعها؟
7. كيف تسلم أنت وكيف يسلم لك قلبك وظنك بالناس عمومًا والصالحين من عباد الله خصوصًا؟

The Muslim's Stance Toward Ethical Crises and Scandals Alhamdulillah. In this article, I addres... more The Muslim's Stance Toward Ethical Crises and Scandals

Alhamdulillah.

In this article, I addressed the following concerns:

1. The Importance of Guarding the Heart and the Tongue
2. The Importance of Concealing the Sins of Those Who Do Not Publicize Their Actions and Harm Only Themselves
3. The Importance of Verification and Its Levels
4. When Is Backbiting (ghībah) and Public Exposure (tashhīr) Permissible, and Who Is Responsible for It?
5. Distribution of Responsibility among the parties involved in the scandal
6. What Are the Means of Preventing These Crises and Minimizing Their Impact When They Occur?
7. How can you ensure your own safety and guard your heart and assumptions about people in general, especially the righteous servants of Allah?

The Muslim's Stance Toward Ethical Crises and Scandals Alhamdulillah. In this article, I addres... more The Muslim's Stance Toward Ethical Crises and Scandals

Alhamdulillah.

In this article, I addressed the following concerns: