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Paper presented at a Symposium on Protection of the ‘Aql held at the Kulliyah of Medicine International Islamic University Kuantan by Dr Omar Hasan Kasule Sr MB ChB (MUK), MPH (Harvard), DrPH (Harvard) Professor of Epidemiology and Islamic Medicine Universiti Brunei Darussalam and Visiting Professor of Epidemiology Universiti Malaya
ABSTRACT
The paper starts by distinguishing the general concept of ‘aql as intellect from the specific legal definition of ‘aql as legal competence or legal capacity. The two concepts are closely related and are both subsumed under the purpose of protecting and preserving human intellect, hifdh al ‘aql, that is the third of the 5 Purposes of the Law, maqasid al shari’at al khamsat. ‘Aql is protected by prohibition of intoxicants, khamr, because they impair or destroy intellectual function. ‘Aql is preserved by good mental hygiene which consists of preventing and treating mental disorders. A subsequent paper will discuss the promotion of ‘aql by correct knowledge and guarantee of the integrity of ‘aql by correct ‘aqidat.
1.0 GENERAL CHARACTERIZATION OF ‘AQL AS INTELLECT
1.1 Conceptual Definition of ‘aql as intellect
‘Aql is a human faculty that enables humans to interpret sensory information from the environment to gain new knowledge, to think and formulate ideas, to distinguish the right and moral from the wrong and evil, and to control voluntary human behavior. Aql is a distinguishing characteristic of humans that separates them from animals. It also distinguishes believers from non-believers and determines grades among believers. ‘Aql is a concept whose anatomical basis is not fully understood. The Qur’an has used 5 concepts that can be understood to refer to the seat of intellect: naasiyat, lubb, qalb, nafs, and fuad. ‘Aql has a spiritual component. In the present state of human knowledge we are not yet able to define ‘aql in terms of neurophysiology.
1.2 ‘Aql as a basis for human behavior
Most human physiological functions are under autonomic, reflex, and endocrine control. Cortical influences manifesting the functioning of the human intellect can over-ride some of these autonomic functions. The human cortex is also able to initiate voluntary activities on its own without any physiological triggers. It is human intellect as manifested in cortical function that makes humans responsible and accountable for their actions. Animals on the other hand do not have this ability. Human intellect enables humans to distinguish moral from immoral behaviour and to make judgements of right and wrong much of the time but there are some moral issues beyond human intellect that require guidance from revelation, wahy.
1.4 Disorders of the intellect, shudhuudh ‘aqli
Human intellect is so important that its disorders have serious consequences. The Qur’an has mentioned many disorders of the intellect: kufr, shirk, jaahiliyyat, jahal, jidaal, shakk, dhann, and wahm. Denying the Creator, kufr, can only occur if the denier suspends his intellect, ta'atwill aql al kafir[1], since it is based on a false premise that the universe created itself. Shirk is intellectual failure to see that the harmonious and co-ordinated universe could not have more than one Creator and arises due to blind following of forefathers, taqlid al aaba[2]. Moral ignorance, jaahiliyyat, is ‘intellectual blindness’ to moral choices that can be understood empirically. Cognitive ignorance, jahl, due to deficient factual information can be cured by using the intellect to get the necessary knowledge. The Qur’an severely condemned intellectual failures manifesting as sterile argumentations, jidaal, that are misuse of human intellect for no useful purpose; doubt, shakk, that is doubting existing facts without evidence leading to instability of ideas, unclear thinking, no conclusions, and deficient action; Illusions, wahm, that is the creation of illusionary facts and self-delusion; and conjecture, dhann, that is a fixed suspicion not based on any facts.
2.0 SPECIFIC CHARACTERIZATION OF ‘AQL AS LEGAL RESPONSIBILITY
2.1 Distinction between ‘aql as intellect and ‘aql as legal responsibility
The jurists basing on the Qur’an and sunnat have developed a more specific definition of the term ‘aql to mean legal responsibility and accountability. Legal responsibility cannot exist without intellect and those who lose their intellectual competence are no longer legally responsible.
2.2 Legal competence, ahliyyat, in the legally responsible person, mukallaf
A person with full legal competence, mukallaf, has full rights in decisions and actions regarding his person and property. He also has full responsibility for his actions of commission or omission. Validity of obligation, sihat al taklif, is based on intellectual competence, aql, which is the ability to understand the obligation. Intellectual competence comes under the doctrine of legal competence, ahliyat. Ahliyyat is the ability to acquire and exercise rights and obligations (capacity for acquisition of rights is technically called ahliyat al wujuub) and accepting and performing obligations (capacity for execution of obligations is technically called ahliyyat al adaa). Ahliyyat al wujuub is attained by being a human and starts from conception. Ahliyyat al adaa is attained by being an adult human (one who has reached the age of age of majority or puberty). Both forms of ahliyyat can be complete, ahliyyat kaamilat, or deficient, ahliyyat naaqisat, according to age as well as other factors. The variation of ahliyyat by age is shown in the table below:
Period of Life | Rights (ahliyat al wujuub) | Obligations (ahliyat al adaa |
Fetal Period | Limited/partial/defective | None |
Birth to age of discrimination | Complete | None |
Age of discrimination to puberty | Complete | Limited/partial/defective |
Post-puberty | Complete | Complete |
Other factors that lead to deficiency of ahliyyat are classified into two categories: natural factors, mawani’u samawiyyat, and acquired factors, mawani’u muktasabat. The former are involuntary whereas the latter can be under voluntary human control. The natural factors are: minority, sighar; insanity, junuun; idiocy, ittat; forgetfulness, nisyaan; sleep, nawm, loss of consciousness, ighma; severe illness, maradh al mawt; and death, mawt. The acquired factors are: ignorance, jahl; error, khat'a; jest, hazal; folly, safah; intoxication, sakr; coercion, ikraah; menstruation, haidh; and travel, safar. Deficiency of ahliyyat affects obligations more than rights. In situations of legal incompetence, legal authority is given to a guardian, wali, to make and carry out decisions regarding the person, nafs, or wealth, maal.
2.3 Dependence of legal competence on intellectual competence
Puberty, buluugh, is a mark of adulthood and legal obligation. Puberty is a proxy indicator for intellectual maturity. It was chosen as the legal definition of maturity because there is no other easily determined and unanimous criterion. In most cases buloogh corresponds with intellectual maturity. There are however variations. Some children attain intellectual maturity before buloogh. There are also adults who have already attained buloogh but are not intellectually mature.
3.0 PROTECTION OF ‘AQL BY PROHIBITING INTOXICANTS
3.1 Definition of intoxicant
The term khamr refers to an intoxicant. Khamr is defined in the Law as any substance that causes intoxication, al khamr ma khaamar al ‘aql, or anything that causes clouding of the mind, kullu muskirin khamr[3]. Khamr is the key to other evils and sins, al kahmr miftaah al shuruur[4]. Khamr is likened to worshipping idols[5]. Iman temporarily disappears from a person at the moment of taking an intoxicant[6]. The salat of an intoxicated person is not accepted[7]. Khamr is not a cure but is a disease[8]. Spread of khamr is one of the signs of impending last day, al kahmr min ashraat al sa'at[9].
3.2 Impact of intoxicants on ‘aql
Intoxicants change or impair the intellect, the distinguishing feature of human life. With an impaired intellect and loss of control a human becomes an animal. Intoxicants being generally addictive compulsively prevent a person from following the dictates of his or her intellect. Intoxicants taken voluntarily have no legal impact on ahliyyat al adaa. Thus a person is legally liable for any actions of commission or omission committed under the influence intoxicants.
3.2 Prohibition of intoxicants, tahriim al khamr
Every intoxicant is prohibited, kullu muskir haraam[10]. What intoxicates in large amounts is prohibited even if taken in small amounts, ma askara kathiruhu fa qaliluhu haram. Addiction, besides nullifying the purpose of hifdh al ‘aql, leads to poor health, psychiatric complications, crime, and violation of diin all of which are haraam. The principle of the Law is that what leads to haram is haram, ma adda ila haraam fahuwa haraam. The Law has provided methods of dealing with intoxicant use. The person is involved is advised to repent and stop[11]. Selling, manufacture, transportation, and serving intoxicants are prohibited[12] [13]. Even sale of raw materials out of which khamr is made is prohibited by the Law[14]. The following are the common forms of khamr encountered in modern society.
3.3 Alcohol
The term alcohol is used to refer to beverages containing ethyl alcohol (ethanol) CH3CH2OH. Alcoholic beverages are described as wines, beers, and spirits. The immediate effect of ethanol is mental incompetence. Ethanol is a central nervous system depressant. It has no stimulatory effects. What appears as stimulation at lower levels of intoxication is due to depression of inhibitory centers. At higher levels alcohol causes loss of consciousness that may progress to come. Chronic ethanol intake leads to various syndromes involving neural damage. Werwenicke’s disease manifests as clouding of consciousness. The Korsakoff syndrome is characterized by memory loss and confabulation.
3.4 Nicotine
Nicotine and related alkaloids found in the tobacco plant, nicotiana tobacum, have narcotic effects and are addictive. Tobacco leaves are smoked or chewed.
3.5 Opiates
The group of opiates consists of opium, morphine, heroin, codeine, and other related substances. They relieve pain (analgesia), produce stupor or sleep (narcosis), and cause elation (euphoria). They have both depressive and stimulatory effects on the central nervous system. Tolerance and hence addiction to opiates develops rapidly.
3.6 Hallucinogenic drugs
Hallucinogens are described as psychotomimetic (mimic symptoms of psychotic disorders), psychotogenic (produce psychotic effects unlike naturally-occurring psychotic disease), and psychedelic (expand consciousness by increasing the individual’s awareness of surroundings). Psychedelic drugs stimulate the central nervous system and produce a wide variety of subjective effects including visual hallucinosis, mood and personality changes. Physiological tolerance to psychedelic drugs develops quickly.
3.7 Sedative hypnotics
Sedative hypnotics include barbiturates, bromide, chloral hydrate, and paraldehyde. Barbiturates act on the cerebral centers to inhibit inhibitory actions leading to talkativeness and social interaction. Prolonged use may lead to habituation and psychological dependence. Addicts have blackouts, irrationality, emotional imbalance, mood swings, and psychosis.
3.8 Stimulants
Stimulants include amphetamine and cocaine. Amphetamines are used to relieve depression and fatigue but are associated with habituation, dependency, and physiological tolerance without leading to addiction. Cocaine is derived from leaves of the coca plant (Erythroxylon coca). It stimulates the nervous system, causes mental confusion and convulsions. Chronic use leads to personality disturbance, hallucinosis, and psychosis.
3.9 Tranquillizers
Tranquillizers include reserpine, phenothiazines, and marijuana. Marijuana or marihuana, from the plant Cannabis Sativa, causes euphoria, visual disturbances, changes in judgment, visual hallucination, anxiety, depression, mood changes, paranoia, and psychosis.
3.10 Other intoxicants
The general understanding of an intoxicant is a substance that when ingested results in impairment of intellectual function. There are however many other phenomena that lead to intellectual impairment but are not substances that are ingested. These are generally addictive behaviors that the Law prohibited. They prevent a human from acting according to the dictates of the intellect because of the irresistible compulsive force of the addiction. Examples are gambling, pervert sexual acts, erotic music, and some forms of sports. These should by right be included under the category of intoxicants, khamr.
4.0 PRESERVATION OF ‘AQL BY MENTAL TREATMENT
4.1 Definition of mental disorders
There is no simple definition of mental disorder since the distinction between pathology and idiosyncrasy is very fine. Psychiatric disorders manifest as delusions, hallucinosis, paranoia, affective disorders, anxiety neurosis, obsessive-compulsive disorders, somatoform disorders, personality disorders, and psycho-sexual disorders. Psychiatry deals with diagnosis, treatment, and prevention of mental disorders. It uses drug therapy, psychotherapy, and surgery.
4.2 Impact of mental disorders on ‘aql
Mental disorders are disorders of the ‘aql and are associated with intellectual incompetence and therefore affect ahliyyat al wujuub and ahliyyat al adaa. The impact on ahliyyat al wujuub is minor being confined to restriction of enjoyment of rights and not abolition of those rights. The restrictions are imposed in the interests of the patient himself who if left to deal with his property and other rights is likely to cause damage because of impaired intellect. The impact on ahliyyat al adaa is more important because mental disorders resulting in loss of intellectual incompetence excuse the person from many legal obligations. Actions of commission or omission in situations of intellectual incompetence do not carry any legal obligations.
4.7 Treatment of mental disorders
Mental hygiene involves maintaining mental balance by living a stress-free life and treating neurotic or psychotic disorders. Medical treatment plays a very important role in protection of the mind. Treatment of physical illnesses removes stress that affects the mental state. Treatment of neuroses and psychoses restores intellectual and emotional functions. Medical treatment of alcohol and drug abuse prevents deterioration of the intellect. Other approaches in mental hygiene are correcting the ‘aqiidat, acts of ‘ibadat, and dua.
Correct ‘aqidat, gives correct understanding of life’s events. Correct ‘aqidat gives the potential victim a reality bigger than himself and his problem. The problem suddenly becomes miniscule compared to the big expansive cosmos. Correct ‘aqidat also gives hope, raja, in the mercy and help of Allah. It also teaches the potential victim the value of tawakkul, reliance on Allah. It teaches renouncing the material possessions of the earth, zuhd, which prevents anxiety or depression about material losses.
‘Ibadat disciplines and strengthens the worshipper. Acts of worship help maintain balance, mizan, and equilibrium, i’itidaal. Salat leads to calmness, sakiinat. Zakat involving giving away some of our wealth in charity cures us of the disease of covetousness, shuhhu. Dhikr and tafakkur (meditation) lead to mental and spiritual equilibrium. Meditation controls papanca (Buddhist term for monkey mind jumping from idea to idea eventually causing anxiety).
[1] Qur’an 7:179, 10:42-43, 13:19
[2] Qur’an 2:170, 7:28, 7:70-71, 7:173, 10:78, 11:62, 11:87, 11:109, 12:40, 14:10, 21:52-54, 23:24, 26:72-77, 28:36, 31:21, 34:43, 38:5-7, 43:22-24)
[3] Bukhari K64 B60
[4] Ibn Majah K30 B1
[5] Ahmad 1:272
[6] Bukhari K74 B1
[7] Nisai K51 B43
[8] Muslim K36 H12
[9] Bukhari K3 B21
[10] Bukhari K64 B60
[11] Nisai K51 B45
[12] Bukhari K34 B24
[13] Abudaud K25 B2
[14] Nisai K51 B51, 52