CLONING, IJTHIHAD AND ISLAMIC JURISPRUDENCE

By

Abdul Azeez H. M.

Cloning of animals in the recent past has paved the way for conflict of views among

various religious sections. For one section the basic notion of religious belief is that the

existence of all powerful creators who alone has the right of creation and man who are

creators of him has no authority for the creation.1 For others, even among religious

believers, cloning has to be considered as a scientific and technological advancement and

has to be continued for human progress.2 Islam, like Christian and Jewish faith, believes

that Almighty God has created everything in this world and man has been given authority

over all creatures. I shall examine below whether cloning is allowed under Islamic law as it

was not even imagined when Islam came into existence in 7th century. I would argue that

though cloning is not provided in the Qur’an, the holy text of Muslims, if it has a beneficial

interest for the human beings, by the method of Ijthihad it can be considered as acceptable

in Islamic law and if it has harmful effect for the community or even for the cloned

creature itself, it must be considered as prohibited.

What is cloning?

Cloning is “the process by which genetic material from the nucleus of an adult donor cell is

transferred to a female reproductive cell of the same species from which the original

1
Farhat Moazam, The International Congress of Medical Ethicsin Iran, 16-18 April 2008,
mehr.tums.ac.ir/.../Publishing/lecturer%20-%20latin-main%20file-%20Asli%20-%201%20day%20befor
%20congress.pdf
2
Ibid

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genetic material of the nucleus has been removed. Cell division is then stimulated by

electrical or chemical means and a new embryo is formed. This results in a new organism

that is genetically almost identical to the donor.”3 Thus it can be considered as a process of

developing new creatures by artificial method.

Cloning in other Religions: An overview

Hinduism believes that animals and human beings have souls and after the death it may get

recycled in accordance with the deeds of them in this world. Hinduism stands for non

cruelty against any creature by the fear that if Man commit cruelty then his soul, after the

death, may be recycled as animal or serpent etc. Regarding cloning Hinduism is silent. An

editorial on cloning in Hinduism Today argues that “Hinduism neither condones nor

condemns the march of science… the simple rule is this: Cause no injury to others and let

dharma—the law of good conduct and harmony with the universe and its many forces and

creatures—be the guide for all such explorations.”4 Buddhism also believes in recycling of

life and they believe cloning is one method for the recycling. 5 Christian and Jewish belief

is not similar to that of Hinduism and Buddhism in relation to cloning. In Christian and

Jewish belief, God has created the first Man Adam in his own image and has given
3
Ibid
4
Dena S. Davis, A Tale of Two Creatures: Jewish and Christian Attitudes Toward Cloning;
http://www.parkridgecenter.org/Page60.html
5
Buddhism, Cloning, and Stem Cell Research, http://atheism.about.com/b/2004/02/23/buddhism-
cloning-and-stem-cell-research.htm

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authority over everything on earth, but the control of human beings is taken by him.6 It

seems to be that the view of Christian and Jew theologically is that man has no authority to

create human beings by cloning.

Cloning under Islamic Jurisprudence

Qur’an, the revelations of God to the Muslims through Prophet Mohamed and Sunna,

deeds and sayings of Prophet Mohamed, are the primary sources of Islamic law and they

came into existence in 7th century when there was no much scientific advancement. An

issue that arises has to be resolved looking at Qur’an if it provides a solution of it and no

other source can override Quran.7 If it does not find a place in Qur’an, the issue must be

resolved referring to Sunna, if there is a solution found in.8 There could come up situations

in which these two primary sources could not settle the issues in which cases the consensus

or Ijma of scholars of Islamic principles who were with Prophet Mohamed were relied on

to determine such issues.9 These sources were prevalent in 7th and 8th century and cloning

experiments are of recent origin in the scientific world that could not have even been

thought of by the people in those centuries. In order to encounter such issues that were

unforeseen in those periods but could emerge with the time, methods of logical deduction

of Qiyas and/or Ijthihad were evolved under Islamic Jurisprudence by scholars and jurists
6
What is the Christian view of cloning, http://www.gotquestions.org/cloning-Christian.html
7
Quran 2: 1-5; See also F.E. Peters, A reader on classical Islam, Princeton University Press, New Jersey,
pp166-69
8
John Bruton, An Introduction to Hadith, Edinburg University Press, pp 17-25
9
Khadduri, Islamic Jurisprudence: Shafi’I’s Risala,(1961) pp 285-7

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in line with Quran, Sunna and Ijma. The issue of cloning experimentation for new creature

is of such a matter that was not envisaged during those periods and whether this is

acceptable in Islam can only be determined by the method of application of Qiyas or

Ijthihad.

In Quran, God has revealed only broad principles and has endowed man with the freedom

to apply them in every age in the way suited to the needs and conditions of that age. As the

time passes on, due to scientific advancement the society progresses and new inventions

coming up, there are possibilities that Qur’an, Sunna and Ijma couldn’t settle such issues

that were not envisaged during the period of Prophet Mohamed or immediately afterwards,

then it could be resolved by Qiyas or Ijthihad of deductive reasoning ‘from known

commands and prohibitions in the Qur’an and Sunna to new and changing circumstances

in which the shari’a must be applied’.10 Qiyas or analogy is a method of interpretation in

which logical reasoning on the basis of the Qura’n and Sunna is generally accepted as fully

legitimate.11 The concept of Qiyas rests in the fact that where the rule of revealed text of

Qur’an and Sunna of Prophet has attribute to other comparable situations. For the purpose

of application of Qiyas, the illa or ‘efficient cause’ is taken into consideration in order to

arrive at a comparable situation with that in primary sources.12 In other words Illa is

considered as the causal connection between the two situations as for instance, in the case
10
See, Richard C. Martin et al, Defenders Of Reason In Islam, p.15
11
See, From Macolm H.Kerr, Islamic Reform: The Political and Legal Theories fo Muhammad ‘Abduh and
Rashid Rida, (Berkeley: University of California Press, 1966). Pp 66-79
12
Id.

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of prohibition of drinking of wine, Illa is intoxication and hence any substance that makes

intoxication is considered as prohibited. The problem with Qiyas is that it always looks for

similar circumstances compatible with Quran, Sunna or Ijma that always cannot easily be

found with the one in hand. As Cloning is of very recent origin no similar situation could

be traceable in Quran, Sunna and Ijma. So the only way out to find whether cloning is

acceptable or prohibitive under Islam is by the method of Ijthihad.

Ijthihad or ‘independent reasoning’ is the method by which the principles established by

the Qur'an, Sunna, and Ijma are to be extended and applied to the solution of new problems

that have never arisen before or are not expressly regulated by them13. However, it cannot

be used to achieve a result which contradicts a rule established by any of these fundamental

sources. In order to settle new issues of social and legal nature that was difficult to solve by

the method of Qiyas, Abu Hanif, a great scholar of Islam and founder of Hanafi Fuqaha

(Hanafi School) found the doctrine of istihsan or ‘community interest’ as a justification for

the purpose of providing the liberty to exercise the Ijthihad.14 Later, Hambali fuqaha in all

cases and Maliki fuqaha in restricted cases of public benefit accepted the same doctrine.15

Generally speaking Sunni sect widely used Ijthihad and for that they claimed the support of

Hadith from prophet Mohamed and one of such Hadith is that when the Prophet sent a
13
Col. Ghulam Sarwar, Ijtihad As A Source Of Law, Hamdard Islamicus, Vol. 20 (1997) No. 1
<http://lawinislam.com/article.php?id=66>
14
Id.
15
Id.

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follower, Mu`adh-Bin-Jabal to Yemen, Prophet asked him how he would issue commands

there. Jabal replied: "In conformity with the Book"; then Prophet asked: "And if it is not to

be found in the book?"; he said "I will make use of the Sunna of the Prophet." Prophet

again asked "And if it is not to be found in the Sunna of the Prophet?"; "Ijthihad al ra'y,”

he replied.16 From this Hadith Sunni scholars underlines that Prophet consented for

independent reasoning or Ijthihad. Shafi’, founder of Shafi’ school, supported Ijthihad even

in the absence of the above Hadith, by his own interpretation that he who intends to face

the Ka’ba from a distance can use the personal initiative.17 Shi’ism generally accepted

Ijthihad for the day to day affairs in life.18 Thus, there was unanimity in the conceptual

establishment of the Ijthihad and for its application for the community interest.

A set back to the principle of Ijithihad took place by the turn of the 11th century (around

fourth century of the Hijra), when scholars like Al-Ghazzali decided that all the points in

Islam were settled and was not necessary to further use of Ijthihad any more by what is

known as ‘closing of the door of Ijthihad’.19 But this demanded the development of an

alternative, namely, takilid which determined issues by reference to accepted doctrines of

established schools.20 The rule of takilid had oppositions in so far as it did not meet the

needs of the day and Ibn Taymiyya paved the way, though not explicitly, for the reopening

16
Murtada Mutahhari, The Principle of Ijtihad in Islam, Vol X, No. 1, http://www.al-
shia.com/html/eng/books/fiqh&usool/ijtihad/ijtihad.htm
17
Peters, A Reader On Classical Islam, “Personal Initiative in the law”,at133
18
See Mutahhari, Supra note 14
19
Joseph Schacht, An Introduction to Islamic Law, ‘The Closing of The Gate of Independent Reasoning And
The Further Development of Doctrine”,(1982), at.71
20
Id.

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of the ‘door of Ijithihad’, by interpreting the Quran and the traditions of Prophet to arrive

at novel conclusions in Islamic law.21 From eighteen century onwards, reform movement

such as Salafiya started and they advocated on renovating Islam by interpreting in the light

of modern conditions.22 Muhammad Khalid Masud, Pakistani Jurist, claims, it was not the

door of Ijthihad that is closed but the door of Madhab (Schools) that was closed.23 In any

case, Ijthihad revisited (or continued) in the Islamic law giving jurists opportunity to

interpret the issues that arose in life which could only be solved by the technique of

deduction by independent reasoning of Jurists and scholars. Bernard Weiss says that what

the jurists declares is authoritative not because of him declaring it but because it has been

validly derived from the textual sources and is therefore an acceptable expression of the

Law of God.24 Thus from the above it can be inferred that today, in order to suit the

changing circumstances or new inventions, the independent scholars and jurists have

authority to deduce doctrines from the Quran, Sunna and Ijma.

Qura’fi, a great scholar of Islamic law, systematically laid down eight means of Illa or

‘efficient cause’ for analogical deductions25 and his distinction of one of such Illa, namely,

’suitability’ or munasaba becomes relevant here as it gives further explanation to Abu

21
Id.
22
Id.at.73
23
Masud, Muhammad Khalid, Iqbal’s concept of Ijthihad, (1975)
24
Bernard Weiss, Interpretation in Islamic Law: The Theory of Ijithihad, 26 AM J Com Law, 1999(1978)
25
He lists eight means to identify the illa in a legal ruling such as explicit and implicit textual indication,
suitability, General resemblance, concomitance, Elimination, Refinement; See also infra n.19

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Hanif’s doctrine of istihsan or community interest. Qura’fi’s distinction of ‘suitability’ can

be put as those:

i. that are beneficial interest to the community as recognized and permitted by

textual sources;

ii. that are specifically excluded from consideration by the textual sources

iii. that the textual sources neither endorse nor exclude the benefit but simply

ignore it.26

From both Abu Hanif and Qu’rafi it can be inferred that beneficial interest of umma or

human beings can be considered as a test to determine whether a scientific invention such

as cloning is acceptable or non acceptable in Islam.

Cloning of Animals under Islam

More or less in line with Qara’fi’s munasaba analogies, Dr. Sami al-Majid, professor at the

Islamic Law College in Riyadh puts forward the following test in order to determine the

validity of cloning of animals under Islamic principles:

i. There must be a clear benefit for humanity in cloning the animal. This benefit

could be in the way of scientific research or from medical treatments and products

derived from the process.

26
See From Macolm H.Kerr, Islamic Reform: The Political and Legal Theories of Muhammad ‘Abduh and
Rashid Rida, (Berkeley: University of California Press, 1966). Pp 66-79

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ii. Any harm to humanity that might result from cloning the animal must be

outweighed by the benefit.

iii. No unnecessary harm or suffering should occur for the cloned animal during the

course of its life as a result of its being a clone.27

The logical deduction as laid down by Qara’fi and Dr. Sami al-Majid shows that the

cloning of animal is not as such prohibited under Islam and can be carried on if it does not

result into any harm or danger to human beings or to the new creature itself.

Cloning of Human beings

The question that now arises is whether Ijthihad that is applicable in the case of animal

cloning as permissible under Islam can be used to clone human beings. The answer to this

question is not as simple as it may seem to be as in the case of animal cloning by the

application of theory of beneficial interest to the community. Quran makes it clear that

Man is created separate in a special way as it says “We created (khalaqna) man of an

extraction of clay, then we set him, a drop in a safe lodging, then We created of the drop a

clot, then We created of the clot a tissue, then We created of the tissue bones, then we

covered the bones in flesh; thereafter We produced it as another creature. So blessed be

27
See Moazam, Supra note.1

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God, the Best of creators”28 and is given authority to control over all other creatures in this

world and Allah says: “Verily, we have honored the children of Adam”.29 From these

verses of Quran there is no doubt that Quran gives special status to Man different from

other creatures. But the question is “Does it mean that cloning of human being is

prohibited under Islam?”

In this context it is necessary to know whether cloning is absolutely a new creation or it is a

transformation and there exists a major controversy over this aspect. One argument is that

it is a new creation with new life and is hence prohibited by Islam as God alone has the

authority to create human beings, where as others argue that cloning is merely taking

genetic material from one that has already been created by Allah and transferring it to

duplicate it and is not a new creation and hence it is not against Islamic tenets.30 The more

appropriate view seems to me the later one as Quran says “ (God) teacheth man which he

knew not”31 which indicate that whatever knowledge that has been given to man is given by

God and without God’s plan Man cannot fruitfully exercise his brain, skill and knowledge.

Accordingly, Man cannot give life by cloning unless Allah wills it and has been decided by

Allah to extend his power to Man to discover and hence it cannot be considered as purely a

new creation of human beings but for Allah’s mercy. My view is that the beneficial interest

28
Khaliqin: 23: 12-14; See also Supra n.1.
29
Sûrah al-Isrâ’: 70; See supra n:14
30
Islam and Human Cloning, http://www.islam101.com/science/cloning.htm
31
Al Alaq:5

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theory as applied in Islamic law of animal cloning can be applied in the case of human

cloning too. As scientists claim cloning can solve genetic disorders, fertility problems, fatal

diseases and such other issues of vital importance and serious repercussions of life, it must

be considered as beneficial interest to community. As for instance, the only child of a

parents is suffering from leukemia and that there is no remedy to save the life of the child

and that the parents cannot have another child, but by the method of cloning if the child’s

cloning can give a similar child to the parents that parent would be happy and can avoid

their depression in life and cloning can be allowed in such cases by the application of the

principle of ijthihad under Islamic law.

Conclusion

In the cloning experimentation to create or develop new creature, unlike Christian and

Jewish belief, Islamic jurisprudence can be interpreted to stand for cloning of animals and

human beings for the beneficial interest of community. At the same time Islamic law

prohibits if such experiment is harmful for both the community and the new creature.

Cloning is deduced under Islamic law as permissible by the method of Ijthihad. Since

Ijthihad is independent reasoning of single person that may tend to suggest plurality based

on independent research and interpretation of legal scholars in the community. Though

such difficulties may arise by the application of Ijthihad as it relies on individual

independent reasoning and interpretation of Quran, Sunna and Ijma, yet in order to cop up

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with the emerging situations such as cloning Ijthihad is the better way under Islamic

jurisprudence.

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