Opinion: When Haram Can Become Halal – Part II

By Dr. Wan Azhar Wan Ahmad, Senior Fellow / Director, Center for the Study of Syariah, Law and Politics, Institute of Islamic Understanding Malaysia (IKIM)

[Note: This article was published by The Star (Malaysia) on December 14, 2010. However, it was edited to the extent that I believe may distort readers’ understanding of the issue. Here is the full version of the writing].

This is a corollary, a continuation of my earlier article, “When haram can become halal,” (see HalalFocus) published by The Star on December 7. These two pieces must be read together before one can make any appropriate conclusion on the subject matter discussed.

The entire issue is extremely sensitive to Muslims and technical in nature. Thus readers are to go through the whole writing with patience and passion to the very end.

The second Islamic legal principle that complements my deliberation on istihalah last week is istihlak, or ‘extreme dilution’. Readers must be careful here so as not to confuse the two.

This concept materializes when a particular entity is entirely obliterated inside a second entity in such a manner that the former cannot be considered as part of the latter.

In our context, it refers to a situation whereby a prohibited substance is diluted in a lawful medium to the extent that none of the known properties of the prohibited substance are noticeable in the lawful medium.

When this takes place, the prohibited status of the first substance can be ignored, meaning it’s unlawfulness has no legal effect on the second medium.

To illustrate, if animals urinate in a lake, the water of this lake is still pure and lawful for drink and ablution, provided the noticeable properties of the water, i.e. its colour, smell and taste are unchanged by the urine.

Similarly if a drop of wine/blood founds its way into a glass full of clean water and becomes diluted in it, the water is still pure so long as the properties of the water remain unchanged. Here, the drop of wine/blood loses its identity. Hence the applicability of the law prohibiting intoxicant/blood ceases to exist.

This ‘extreme dilution’ principle is based on a hadith when people asked the Prophet about a well in which a carrion fell (carrion is considered impure and anything contaminated by it is equally impure). The Prophet SAW explained that if the water is more than a specified amount, then there was neither harm nor prohibition in using it. (The specified amount of water is required to ensure that the carrion will not change the properties of the water).

Another hadith supports the above. During the Prophet’s time, his companions continued to drink fruit juice until it showed signs of fermentation. They would only stop drinking the ‘juice’ if its smell or taste indicated that it had changed to wine, suggesting the presence of a considerable amount of alcohol in it.

But even before the fruit juice becomes wine, a certain amount of alcohol was already there. However, the amount of alcohol was too insignificant to affect its taste or smell. Thus the companions consciously ignored its purported prohibition.

The above shows that the mere presence of alcohol is not the determining basis for the prohibition of such a beverage containing it. This kind of beverage is declared unlawful by virtue of its intoxicating effects. A number of other hadiths affirm this.

Allow me to digress a bit. Alcohol here refers to ethyl alcohol, or ethanol, the intoxicating element in wine, beer, spirit and so on. It is produced by means of fermentation or distillation. Generally, the content of alcohol in beer is between 4 – 6%, in wine 9 – 16% and in spirit more than 20%. The fact that ethanol is added to other material to form liquor indicates that it is extremely harmful to be consumed in itself.

Khamr’ as related in the Qur’an is not this ethanol. The forbidden khamr here refers to the fermented liquor, and extended, by analogy to include any intoxicating beverages or drugs. Therefore, it is not ethanol per se that is prohibited by Islamic Law, but rather any beverages with intoxicating effect that wipes out one’s sanity.

If the mere presence of alcohol is the defining factor for prohibition, many other beverages, food items or other products containing it are to be equally declared so. Consider the following examples.

A certain amount of alcohol exist in ‘tapai’ (a delicacy made from rice or tapioca fermented with yeast), ‘tuak’ (a drink extracted from coconut tree, very popular in Kelantan), carbonated drinks and colas, or even in ‘budu’ (a sauce made from fermented salted anchovies/fish), all of which are consumed by a large portion of Muslims. But none of them is haram despite the presence of alcohol.

Let’s go back to our actual discourse. One might argue the validity of istihlak by citing the well known and authentic hadith to the effect that if a large amount of an intoxicating substance is prohibited, then a small amount of it, perhaps even a drop, is also forbidden.

My response goes as follows. The said hadith is literally applicable under normal circumstances. However, in our context here, the syari’e texts are to be interpreted wholistically by taking into consideration other relevant textual evidences as well.

Taking one particular verse from the Qur’an or one hadith in isolation of other related texts can lead to strange, irrational and contradictory rulings.

In light of the hadith referred to above, Muslim scholars have interpreted and qualified it in combination with the previous two situations (the carrion and fermented juice cases). Therefore, under special circumstances, or any situations comparable to that embodied in the two traditions, the ‘one drop’ hadith does not prevail.

As pointed out, a certain amount of alcohol is also present in tapai, tuak, colas, budu and so on. But, in reality, despite rigorous consumption, one is hardly affected by the alcohol contained in them since its amounts and concentration are so minimal and thus negligible.

Similarly, most cheeses are made with the help of milk-coagulating enzymes, such as pepsin or rennet, which can be taken from pigs or other animals. However, enzymes are catalysts, in the sense that they do not actually become part of the cheese itself. They only aid in its formation.

After the milk coagulates and the curds fall to the bottom, the remaining liquid and enzymes are drained off. While it is possible that some enzymes remain in the cheese, the concentration is minimal.

Another case of istihlak is the medicinal use of certain chemical compounds extracted by dissolving plant tissue in alcohol. The end product is virtually free of alcohol although it might contain some infinitesimal traces.

From the foregoing discussion, I would say that there is something common between istihalah and istihlak. This commonality, at least, refers to the inconsequential amount of prohibited substance in things Muslims consume or use.

All cited examples illustrating the two principles are real, pointing to the fact that the amount is too insignificant to the extent that it can only be traced by special machines or detectors, if any, with capabilities that go beyond what our naked senses may capture.

The question here, as Muslims, are we strictly supposed to go into that minutest details in ascertaining the lawfulness of things we use? Are we supposed to conduct a DNA test or employ other scientific methods to determine a 100% permissibility status of things?

Of course, every Muslim is obliged to be conscientious about what he/she does, be it the consumption of beverages/foods, nutritional supplements, medicinal, pharmaceuticals or cosmetic items.

But I am of the opinion that generally Muslims are not required to go and investigate into such a microscopic detail for every occasion of ambiguity. Until and unless convinced otherwise, I believe that the law pertaining to halal and haram is not applicable at the molecular or atomic level of things.

If we were to accept that the law is still relevant, say, at the DNA level, then we have no choice but to consider the excrement, blood and milk of cattle (the illustration for istihalah) are all haram though all of them come from the very same halal source.

For a lay Muslim, if he wants to buy a birthday cake, it is not strictly necessary for him to check whether or not the gelatin used is taken from pig or cattle, to the extent of visiting the factory manufacturing it in Canada for example, or by tracing the animal (if not pig) up to its farm in Argentina, or going to abattoirs in New Zealand to determine whether or not the animal was Islamically slaughtered.

One is also not supposed to buy a specially made device to detect the amount of prohibited substance down to its smallest measurable unit. All the steps mentioned are too troublesome for one to carry out every time one encounters such an uncertainty in any product.

It is sufficient for one to rely on what is manifest from the external noticeable features, or what the public perception say on it. In fact, in Islamic jurisprudence, most legal rulings are concluded based on what is obvious to the senses, decided so by general agreement of the community, endorsed by scholarly observation and rational arguments of majority jurists by means of preponderance probability (ghalabah al-zann), a legal principle that entails positive knowledge.

But for Muslim entrepreneurs, businessmen and other industrial players selling or producing items consumable by Muslims, it is their duty to ensure that their goods and products are safe from any noticeable prohibited substance. 

Though I am personally inclined to say that perhaps the principle of istihalah is applicable to them in certain situations, there are other legal opinions saying that if they have the knowledge, it is haram for them to ignore such a prohibited substance.

To be on the safer side, a Muslim cheese manufacturer, for instance, is not supposed to use porcine originated from pig in his products if he can look for alternative material like bovine extracted from cattle.

This fraternity of business people must enjoy their profits and commercial gains responsibly, religiously, legally.

Now, Muslims must bear this in mind. Allah the Almighty admonishes the believers not to ask questions about things which if made plain and clear to them may cause them trouble (al-Ma’idah, 5: 101).

If they do not pay heed to this, they will become like the Jews, who, when Allah straightforwardly commands them to sacrifice a female cattle, they reacted by asking silly questions making its execution even more difficult for themselves, almost calling it off (al-Baqarah, 2: 67—71).

Commenting the story, Abdullah Yusuf Ali says those Israelites were actually treating the divine command as a jest.

Taking lesson from this event, Muslims today must never imitate or seen to reprise these attitude and behaviours, ‘mocking’ religious instructions and making life troublesome unnecessarily!

The Quranic reminders aforementioned are substantiated by the hadiths of Prophet Muhammad (s.a.w.). His mission was never to inflict hardship on people, but to bring mercy to the whole creatures of the universe.

He counsels that religion is easy and always prefers an easier alternative from two or more options.  He demonstrates this, for instance, by not having long recitals during prayers and never imposed that tarawih prayers during Ramadhan must be performed 20 cycles.

Having said all the above, I am not advocating that Muslim scientists have to give up their R & D and halt inventing devices to trace prohibited substances in any products related to Muslims.

On the contrary, it is their collective responsibility (fardhu kifayah) to do so. In fact, under certain circumstances, this responsibility may change to become personal obligation (fardhu ayn) to certain individual scientist.

But, if they manage to come out with any scientific gadget, such a device is not to be first marketed to the general masses.

It is quite ridiculous for those scientists to expect that ordinary members of the public will have to dig out their pockets to buy, say, a RM10K detector and to make it available in every household for one to inspect whether or not one’s vegetables contain a certain ‘nanogram’ amount of prohibited elements traceable to pig.

What is more advisable for those scientists is to go and urge the authorities responsible for Muslim affairs or even the government to take actions to protect and enhance the interests of Muslims in all aspects of life.

In the midst of abundant obscurities pertaining to the lawfulness of thousands of products used by Muslims, and upon discoveries made through those scientific devices, those authorities and government must take measures, for example, to encourage and to financially support more Muslim industrial players to produce halal gelatin and so on in huge entities.

But, often times, on the one hand, I am annoyed with the kind of ‘religious overzealousness’ of our people. On the other, as an academician, I am equally disturbed, flabbergasted, with what I perceive as the lackadaisical attitude, lack of commitment, lack of political will and sincerity of our political leaders.

While I applaud the ongoing efforts to make Malaysia the world’s best halal hub for mankind, I just hope that the people entrusted with the amanah mean business and are really serious about it, giving utmost priority to religious considerations as their inspirations, rather than personal or organizational gains.

Last but not least, as guidelines, the right attitude for Muslims to hold includes the followings:

(i)             In cases of doubt and one fears that one may compromise one religious belief and principles in doing or consuming anything, then one may distance oneself from such a thing. This is actually the spirit of the very first hadith referred to in this article (the first part).

(ii)           Any product that contains a considerable amount of a prohibited substance, or in which the properties of a prohibited substance are noticeable, is in itself prohibited, and thus to be avoided.

(iii) If the amount of a prohibited substance is significantly inconsequential/infinitesimal to affect the noticeable properties of a thing, then the prohibition may be ignored.

In short, as a general rule, Muslims are not rigidly required to unnecessarily putting themselves into severe hardship in identifying the lawfulness of things. If one insists that such an action or process of determination is imperative on Muslims no matter what, then one would not find anything lawful on the face of this planet!

In this regard, Muhammad b. Allan al-Bakri, a traditional Shafi’i jurist, has reportedly said: “Complete certainty that something is lawful is only conceivable about rainwater falling from the sky into one’s hand” (see Dalil al-Falihin li Turuq Riyad al-Salihin).