Applications of Jurists as Regards
Condition of Estate And Valuation
To Sale of Man And Human Organs
Jurists unanimously agree upon impermissibility and invalidity of selling a free person. They do not consider man as “money” on the basis of the authentic Hadith by the prophet:
“Allah, the Mighty, the Majestic said: I will be an opponent to three persons on the Day of Judgement: One who makes a covenant in My Name, but he proves treacherous, One who sells a free person (as a slave) and eats the price, and one who employs a labourer and gets the full work done by him but does not pay him his wages” (12).
Denying “Estate” in the free person, for them, is not attributed to non-benefit, as the benefit of man are numerous and their exchange in hiring is permissible as it is known. However, this denial is ascribed to other implications to which jurists referred in their classifications as follows:
(A) Some of them ascribe the reason to the honour by Allah, that is given to man. He, Highly Exalted & Glorified, says
AND ASSUREDLY WE HAVE HONOURED THE CHILDREN OF ADAM.(13)
His honouring comes through the peculiar characteristic of mind which is cause of enjoined duties, and because for man, all other creatures were harnessed at his disposal (14).
Considering man as “money” to be owned and circulated contradicts with such honouring as it arouses the feeling of abuse and humiliation. Ibn Abdeen, says (Man is lawfully honoured even if he is an infidel; being the subject of a contract, and abusing him therewith and attaching him to the inanimate is humiliation to him, and that is impermissible) (15).
Such honouring never departs from man neither willingly nor forcibly. It only departs from man on the single occasion of disbelief; if hostility against Islam and falling captive are combined together in him, then his honouring is denied by permission of the Lawmaker, and he becomes “money” to be sold and purchased (16).
(B) Other jurists hold the view that the reason behind this is the inadmissibility that a free man becomes part of the property of another, because he is, as being the worth more entitled to “his self” than anyone else and his inclusion in the property of others wastes away his right (17). It is not to be said, by way of answer, that he owns himself, so he can waive his soul, because it is inconceivable that the one who concludes a contract is the subject of the contract, and that the seller is the sold object at the same time, whereas sale of man by another is not also lawfully conceived, because man is not entitled to sell what he does not own, and a free man is not included in the property of anyone (18).
(C) A third group holds the opinion that the reason is that considering man as “money” contradicts with his lawfully established inalienable freedom, because such consideration renders him liable to sale and ownership the matter which conflicts with his right to freedom and holds him back from having a free hand in what Allah has made permissible to him (19).
As far as Human Organs are concerned, Jurists unanimously agree that they are not money qua money, nor should they be subject to sale. Jurists do not disagree except on human milk. The multitude of Jurists permit its sale, whereas scholars of Hanafite school deem it impermissible.
The reason behind their disagreement is not attributed to difference in opinion as regards the principle upon which they unanimously agree, but to the difference in justifying this principle as follows:
1) Hanafite Jurists hold the view that the reason for impermissibility of selling human organs is attributed to the honouring particularly conferred by Allah upon man. They look upon each organ of man as the “his self”. For them, honouring includes man and each part of him. This honouring keeps going all over his body with no exception for any part, sale of which is invalid and impermissible, even if benefit from any organ in any aspect whatsoever is possible.
Among the things which they stipulate the invalidity and impermissibility of selling thereof are human hair, bones, skin and woman’s milk if obtained by milking. Al-Merghinani says: It is impermissible to sell nor benefit from man’s hair, because man is honoured and not abused. So it is not permitted that any of his parts be humiliated or abused…) (20).
2) The multitude of Jurists hold the view that the reason behind the impermissibility of selling human organs is that if they are cut off and separated from man’s body, they become of no benefit, or impossibly useful in a way permitted by the Sharia. They cannot be looked upon as “money”, as already mentioned; that the thing is not to be considered as “money” unless it involves real benefit permitted by the Sharia in conditions of no dire necessity.
I do not find among such jurists someone who gives reasons for the impermissibility of sale of human organs in contradiction with the principle of honouring man.
Therefore, when they find a part of man, which is of benefit if cut off from him in any permissible form, they approve the permissibility of its sale, in contrast with the Hanifite school in respect of the woman’s milk when obtained by milking.
The sale of a woman’s milk is also permissible by the Malikite, Shafiite and Hanbalite schools which holds a widespread view and accepted argument that it is pure and of benefit. The Lawmaker made it permissible to drink it in the absence of need. So it can be deemed “money” subject to sale and fulfilling the two elements of “Estate”: real benefit and lawful permissibility of such benefit (21).
Ibn Qudamah expresses this trend in a way that serves well here. He said: “As for the sale of women’s milk, Ahmad says I “dislike this”, and our fellow jurists differ as regards its permissibility. The words of Al Kharqi denote its permissibility as he argues that “Everything is of benefit”. This is the opinion of Al-Shafii’. Another group of our fellow jurists holds the view that its sale is impermissible, and this is the attitude of the Hanifite school… as it is a fluid coming forth from a woman, and it is impermissible to sell, exactly like the sweat, and because it is part of a human being all other parts then Ibn Qudama says:
“The first opinion is more correct, because milk is pure and of benefit so its sale is permissible, like that of the ewe, and because it is permissible to receive a compensation for it as the case is with the wet-nurse so it is of benefit. But the case differs with the sweat because it is of no benefit. That is why the sweat of the ewe is not sold but its milk is… the impermissibility to sell a free man is simply because he is not owned and it is also impermissible to sell the organ cut from him because it is of no benefit) (22).