Shia’ jurisprudence:
Morteza Agha Mohammadi
There are four sources for Shia’ to have the rulings derived from:
A. The Book (the Quran)
B. The tradition (Ahadith concerning sayings, tacitly approved and actions of the prophet and his immaculate households who are twelve divine leaders of Shia’)
C. The consensus
D. The intellect.
There are other sources suggested by Sunni Islam like “blockage of the means”, “comparison” and so on that are speculative reasons and thus rejected by Shia’. Any speculative reason which is not supported by a certain proof is not acceptable.
There is diversity of issues to be mentioned about the Shi’a jurisprudence but something to be suggested here is that there are some specific Shar’i titles which are prohibited and anything beyond them is considered permissible and the principle of exemption will be practiced about them. Thus only when those titles can be applied the case is Haram and forbidden and beyond it everything is permissible.
The majority of Sunni scholars appeal to different arguments, especially theological ones to ban cloning. There are many fatwas and official statements issued by them declaring their view about this technology. For example “the Assembly of Islamic Research” associated with Al-Azhar University, declared cloning to be forbidden and requested all governments to abandon any attempt to clone human beings.
Studying the works done by the Sunni scholars suggests the idea that the prohibition of cloning is vivid enough not to need any reasoning for it.
This is while the majority of Shia scholars consider the process of human reproductive cloning to be inherently permissible, but it might become forbidden because of other side effects like damaging the family structure, ethical problems, and social consequences. Shia scholars really differ on this issue. In brief we can categorize their views as follows:
1- Absolute permissibility: there is no specific explicit prohibition on cloning so according to the principle of permissibility it is alright to be practiced.
2- Limited permissibility: cloning is permissible in its nature, but to do it on a large scale will cause problems, therefore it can be practiced in limited numbers and not a mass production.
3- Second order prohibition: human reproductive cloning is not inherently forbidden and the principle of permissibility is applied on it, but since practicing it will result in problems and corruption, to avoid such consequences, it is prohibited in a second order.
4- First order prohibition: a few among the Shia scholars consider cloning to be forbidden in its nature. (Ghorbanee, 2010, p. 174)
We can add that there is almost a consensus among the scholars on the inherent permissibility of cloning or at least this is the view for the majority of Shia scholars. This is because prohibition needs to be proven and as long as there is no concrete proof, then the principle of permissibility is to be taken into consideration, Otherwise if something is harmful or vice, it must be mentioned by the wise lawgiver, so as long as that thing is not suggested to be forbidden by Him, we can consider it to be permissible. New discoveries are not to be found abandoned in the juridical sources unless when they are listed under prohibited titles. Therefore we are not permitted to consider them to be prohibited as the Quran reads:
وَلاَ تَقُولُواْ لِمَا تَصِفُ أَلْسِنَتُكُمُ الْكَذِبَ هَذَا حَلاَلٌ وَهَذَا حَرَامٌ لِّتَفْتَرُواْ عَلَى اللّهِ الْكَذِبَ إِنَّ الَّذِينَ يَفْتَرُونَ عَلَى اللّهِ الْكَذِبَ لاَ يُفْلِحُونَ
»And, for what your tongues describe, do not utter the lie, (saying) this is lawful and this is unlawful, in order to forge a lie against Allah; surely those who forge the lie against Allah shall not prosper«. (Al-Nahl(16):116)
the same that no one has the right to permit what abandoned by Allah SWT , no one is allowed to abandon whatever permitted by Him.
الْمُحَرِّمُ حَلالَ اللَّهِ كَالْمُسْتَحِلِّ حَرَامَ اللَّهِ
The one who forbids what Allah has permitted is like the one who permits what Allah has prohibited (Algheysarani, 2003).
This is because ascribing a ruling to Allah without any proof is considered to be illegal legislation and it does not make any difference for that decree to be of prohibition or permissibility.
Moreover, always in jurisprudence, to regard something permissible is easier than considering it forbidden because permissibility is according to the first order principles, but prohibition needs extra effort to be proven as it reads:
هُوَ الَّذي خَلَقَ لَكُم ما فِي الأَرضِ جَميعًا
»He it is Who created for you all that is on earth.« (Al-Baqarah(2):29)