For the month of August, we are featuring one, in-depth post by our guest editor, Professor Hossein Modarressi, of Princeton University, and will resume our regular schedule of guest editor contributions in September with the start of the new academic year.
This paper aims to demonstrate how a religious worldview on the story of creation can lead to unconventional legal decisions from people who are otherwise conventional.
The story begins like this: The narrative of creation of man in the Qurʾān 2:30-39 has significant differences from the corresponding narrative in Genesis. Here is how the narrative is told in Genesis 1:26 and 2:19:
“Then God said: Let’s make man in our image, after our likeness, and let them have dominion over the fish in the sea and over the fowl of the air, and over the cattle, and over all the earth, and over every creeping thing that creepeth upon the earth.”
“And out of the ground the Lord God formed every beast of the field, and every fowl of the air, and brought them unto Adam to see what he would call them, and whatsoever Adam called every living creature, that was the name thereof.”
In the Qurʾān 2: 30-33, the story is in the form of a conversation between God and the angels:
“When your Lord said to the angels: ‘I am going to place on the earth a vicegerent,’ they said: ‘Are you placing there one who will foment corruption therein and shed blood while we sing your praise and glorify you(r name)?’ He said: ‘Surely I know what you know not.’
“And He taught Adam all the names, then He presented them to the angels and said: ‘Tell me the names of these if you are truthful.’
“They said: ‘Glory to you, we have no knowledge except what you have taught us: you are surely the all-knowing, the wise.’
“He said: ‘O Adam! Tell them their names.’ When he told them their names, the Lord said: ‘Did I not tell you that I know the secrets of heaven and earth, and that I know what you reveal and what you conceal?’”
As usual, there is a wide range of differences between the commentators of the Qurʾān on how to understand these passages. The one that the present study is based on is a Shīʿite-mystic interpretation with two essential features: (1) God’s delegation of all authority in this world to man, whom He appointed as His vicegerent or substitute (khalīfa), as is also confirmed by Qurʾān 33:72: “We offered the Trust to the heavens and earth and mountains but they refused to bear it and were afraid of it, but man took it up,” and (2) that the distinct feature of this new creature which made it qualified for such a high position was man’s ability to discover the secrets of existence and know the realities of the world. Names in this context is understood to mean the hidden realities of the world which are conventionally known to us by “concepts” and “definitions.” Man was thus taught by God and given the ability to discover the truth. Interestingly enough, the angels did not argue with God as to why they were not offered the same education so that they, too, would know the names. They obviously realized that they lacked the potential and could not receive the kind of education that man received from his God. It was man who had that potential due to a synergy of the breath of God and the body (together with the temptations it creates) along with free will.
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There are two additional traits mentioned in the Qurʾān about this new creature: God awareness and moral awareness: The first is in 7:172, the Qurʾānic version of the primordial covenant between God and humankind on the day of eternity when men were in the form of particles:
“And [remember] when your Lord took from the children of Adam, from their loins, their seed and made them bear witness against themselves: ‘Am I not your Lord?’ They said: ‘Yes, we bear witness.’ Lest you say on the day of resurrection we were unaware of this.”
The point is further confirmed by Qurʾān 30:30, where man is called upon to set his face toward the Path, “the nature on which God has created all humankind.” Muslim commentators on Qurʾān have defined this nature as the pattern of the creation of man’s mind that forms his characteristic attitude. The idea is confirmed by a statement widely quoted from the Prophet to the effect that “every newborn is born according to the Divine pattern (fitra).” This Divine pattern is further defined in the same Qurʾānic passage as “the true religion.” The Qurʾān commentators thus conclude that faith in God is an intrinsic component of the human mind and that one who does not have God in the texture of his mind may not fit the Qurʾānic definition for man.
The second trait is mentioned in a number of Qurʾānic passages, all emphasizing that at the time of creation, God inspired the soul of man with discernment of its wickedness and righteousness (Qur’ān 91:8) and that He showed man the path (Qur’ān 76:3). “Did we not guide him on the two highways?” (Qur’ān 90:10). This is of course in direct opposition to Genesis 2:16-17:
“And the Lord God commanded man saying of every tree of the garden thou mayest freely eat. But of the tree of the knowledge of good and evil,  thou shalt not eat of it.”
Modern commentators on the Qurʾān have interpreted these Qurʾānic references to indicate that moral values are objective and permanent, and that basic standards of morality are already established in every human being’s mind. The claim is that there is a built-in moral system in the world, an objective moral order that human reason can see but is free to follow or not, the same two-thousand-and-several-hundred-years-old dispute whether good was good because the gods did it or the gods did it because it was good.
As is well known, this objectivist versus relativist dispute has a long history in Islamic theology, going back to its oldest days, some twelve or thirteen centuries ago. It is very similar to Thomas Aquinas’ theory of natural law in that it speaks of a streak in the human mind, a disposition, a basic inclination that humans have, not of the laws of nature but of some moral-legal trends within the anthropological blueprint.
However, for a Muslim jurist who has to work within the framework of sacred texts, this opinion led not to the birth of a natural law theory but to a legal presumption of a much more limited scope. It was only in cases of silence of law and conflict of laws, including cases where the ruling for a certain case was uncertain due to contradictory religious reports, that intrinsic moral values were brought up as criteria to decide the suitable law or the credibility of conflicting evidence. In cases like this, a jurist would try to discredit an alternative view or piece of evidence on the basis of their incompatibility with a categorical judgment of human reason, understood to mean common sense.
Even for the Shīʿites who argued for the legal canon known as the Principle of Correlation between Reason and Revelation (Qāʿidat al-mulāzama: al-Mulāzama bayn ḥukm al-ʿaql wa-ḥukm al-sharʿ, or, Kullu mā ḥakama bih al-ʿaql, ḥakama bih al-Sharʿ), that is, that judgments of reason should match the dictates of religion, their legal theory never allowed them to use this principle as a foundation for making positive laws. They used it only as a negative basis to interpret away an opinion or religious report that did not accord with common sense, and even then, only in cases of conflict and tension, as noted above. The general stance was that the human mind had its many faults and shortcomings, which prevented it from understanding the divine purposes behind law. Had the human mind known the true wisdom behind a law, which for God probably meant what served His purpose for all of existence on a holistic rather than case-by-case basis, the human mind would have a similar judgment. To be sure, the human mind can know and discover some moral values, but not necessarily all, at least to a degree of clarity required for legislation. Besides, it was known that some religious laws and rituals were regulatory, in which case there was no right versus wrong criterion from which to choose between alternative possibilities.
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The above-mentioned theory of creation of man with its two components—God’s delegation of His authority in this planet to man and man’s ability to learn and discover mysteries of the world as God’s reason for his creation and divine delegation—has helped a number of legal decisions by the supporters of the above theory. Here are some of the main examples:
1. The most significant legal conclusion to arise from this theory is the presumption that man has the authority to change the existing system of the earth. As in some other religious traditions, tampering with God’s creation is condemned in the Qurʾān 4:119 as well as in traditional Islam. Scientific initiatives in matters such as genetically modified organisms and cloning are therefore frowned at as unwarranted tampering with the patterns of God’s creation in traditional Islam.
In Shīʿite Islam, however, the concept of tampering with God’s creation is generally understood to refer to the spiritual patterns of the creation of man, that is, his orientation toward God and good, and not the physical patterns. Shīʿite jurists who support the theory of delegation of divine authority to man allow the above-mentioned scientific initiatives in principle, that is, unless they involve a health risk or can cause other harms, whether environmental, ethical, social or the like. Human cloning, for instance, is deemed legal, on that theological/cosmological basis, by numerous opinions. The opinions to the contrary among contemporary Shīʿite jurists underline the possible side effects. They fear, for example, health risks of the type that have been suggested and recently backed by some reports in the media, undermining the institution of marriage, possible legal confusion on matters of consanguinity for prohibited degrees of marriage, inheritance, and similar matters of personal status, as well as identification problems similar to the case of natural born twins of identical genes.
Here are a few quotes from legal opinions on the topic by some leading Shīʿite jurists:
- “Not only does human cloning not violate God’s set rules; it is an exercise to attain a more in-depth understanding of the hidden rules of this world. As with any other new scientific invention, this too may cause some problems. It is a duty of human thought to find adequate solutions for those problems in order to benefit from new discoveries.”
- “Human cloning is a kind of use of Divine rules, the discovery and usage of which will uncover a part of His might.”
- “With the advancement of science, man comes to know the mysteries of the world. That is a sign of God’s majesty.”
- “The Qurʾān states that man can conquer the world. It also calls upon man to use nature. Cloning is a kind of uncovering of the mysteries and rules of nature and as such is permissible.”
2. The next conclusion is that man has full authority over his/her gender, which he/she can change if so wishes. Man is a meeting place of three elements: life, soul, and body—including gender. Life is given by God and taken by God. It is outside of man’s authority and jurisdiction. Suicide, therefore, is not allowed. Soul has already been programmed by God with awareness of Him and of values. One should never try to tamper with these human characteristics. Body is within man’s realm and authority.
Basing his argument on this same legal basis, Ayatollah Ruhollah Khomeini held that if allowed by science, sex changes, without restriction to cases of physical confusion, is in principle permissible and within one’s authority and choice. For him, its permissibility only depends on the absence of social, ethical, and legal problems, which admittedly are not easy conditions in a legal system that assigns different shares of inheritance on a gender basis. Nevertheless, for him, even repeating the experience by moving from one gender identity to the other is okay in principle and as many times as one may choose, if science can facilitate it. As far as the religious law is concerned, one has to fulfill religious responsibilities in matters like religious rituals—including the dress code according to one’s current gender status. In practical terms, this legal opinion paved the way for sex change surgeries in Iran for the past three decades.
3. It logically follows from the above argument that other, less significant tampering with God’s patterns of man’s physical creation are allowed too. These include assisted reproductive technology for in vitro fertilization, artificial insemination and embryo transfer, as well as certain cases of surrogate pregnancy and sterilization that do not run into other problems with the religious law. Human scientific discoveries, developments, and methods are ordained by God, the jurists argue, and are allowed as long as they do not violate general and specific religious, social or ethical norms.
4. Logically, it also follows—much more so—that tampering with the final product of God’s physical creation, that is, the human body, is allowed if doing so does not cause harm. That includes matters like cosmetic surgery, organ transplantation, face lifts, nose jobs, and the like. Some of these procedures, as well as less significant matters, such as tattooing, are frowned upon by other schools of Islamic law as incorrectly tampering with God’s work. They also disallow, on the strength of a few solitary religious reports, hair implants, hair transplants, and the wearing of any kind of false hair—including hair extensions, hairpieces, toupees, and wigs; some even condemn eyebrow work and plucking out other unwanted hair. These opinions reduce the Qurʾānic reference to God’s creation from the patterns of His physical or spiritual creation to the final product, that is, the human body.
5. Following the theory all the way to its logical conclusion, some Shīʿite jurists oppose any restriction imposed in the form of intellectual property rights in connection with the findings of human scientific faculty in technology and life sciences. They argue that, because discovery of the mysteries of existence was the ultimate cause of man’s creation, and the goal is acquired through the collective work of human community, generations after generations, each contributing in different ways to facilitate the advancement of human mind and knowledge, scientific findings and innovations should be treated as common property, assets that belong to the entire human community, and made available to all. Making the findings and innovations of science available to all would help current and future generations assume their responsibilities and continue to discover the never-ending mysteries of God’s might and majesty.
The emphasis here is on the common ownership of a discovery or innovation of the scientific mind: Einstein’s relativity theory for instance, access to which is held by these jurists to be a common right of all of humanity that should not be restricted or commercialized. The proposition does not deal with what is produced by putting those findings in action, whether a book, a machine, or something else, and as such does not deny the incorporeal rights over the intellectual property in the form of copyright or patent. To be sure, there were and are prominent Shīʿite jurists, chief among them Ayatollah Khomeini, who have considered intellectual property rights, whether copyright or patent, illegal. Their opinion is, however, based on a specific legal interpretation of the concept of property. The need to remove all restrictions on knowledge is at times brought up in their arguments too, but only as a secondary consideration.
* Paper presented in the Dallah Albaraka Lecture series on Islamic Law and Civilization, Yale Law School, April 7, 2015.
 All citations from the Bible in this paper are according to the Authorized King James Version.
 Qurʾānic translations are mine.
 A primitive version of this idea seems to have been responsible for the old and misunderstood theory of badā in early Shīʿite creed. According to this theory, God does not have a fixed will for what should or should not happen to man independent of what man decides and does by his own free will. God has made a variety of alternatives available to man in every single matter, each with a different but set result, and He makes his final will according to the alternatives that man chooses. God never changes His mind but makes it up in accordance with what man does. In other words, His will waits for man’s decision, the exact opposite of what the Predestinarians suggested. Two unrelated theories in Muslim theology use ideas distantly similar in tone to the above: one is the theory of acquisition (kasb) as offered by the Ashʿarī school, which suggests that when man decides to perform an act, God would grant existence to the intended act on the model of “Man proposes, God disposes” (or as in Thomas à Kempis’ original word: “Nam homo proponit, sed Deus disponit”); the other is the opinion of some Muʿtazilites who suggested that God committed Himself to honor the order of causality in this world, that is to say, when the cause is brought into existence, the effect should automatically follow.
 The corresponding episode in Qurʾān 20:120 identifies the tree as the “tree of immortality.”
 Many of those opinions are now available in the following two monographs on the topic: Ḥasan Islāmī, Shabīh-sazī-i insānī az dīdgāh-i ayīn-i Kātūlīk wa Islām (Qum: Dānishgāh-i Adyān wa Madhāhib, 1386sh/2007), and ʿAlī Muḥammadī, Shabīh-sāzī-i insān: Mulāḥaẓat-i ʿilmī, akhlāqī, ḥuqūqī wa fiqhī (Qum: Daftar-i Nashr-i Maʿārif, 1386sh/2007). See further: http://www.wikifeqh.ir/%D9%85%D8%A3%D8%AE%D8%B0%D8%B4%D9%86%D8%A7%D8%B3%DB%8C_%D8%B4%D8%A8%DB%8C%D9%87%E2%80%8C%D8%B3%D8%A7%D8%B2%DB%8C
 The opinion of Sayyid Muḥammad Ḥusayn Faḍl Allāh in ʿAlī Muḥammadī, Shabīh-sāzī-i insān, 465-66.
 The opinion of Sayyid Muḥammad Saʿīd al-Ḥakīm, ibid., 466.
 The opinion of Sayyid ʿIzz al-Dīn al-Ḥusaynī al-Zanjānī, ibid., 470-73.
 The opinion of Shaykh Muḥammad Hādī Maʿ rifat, ibid., 468-69.
 Ayatollah Khomeini, Tahrīr al-Wasīlah (Najaf, 1387/1967), 2:753.
 For further background, see Intisar Rabb, “Conscience Claims in Islamic Law: A Case Study,” in Religious Freedom and LGBT Rights: Possibilities and Challenges for Finding Common Ground, eds. William N. Eskridge, Jr. & Robin Fretwell Wilson (Cambridge: Cambridge University Press, 2018), 183–99.
 See, for instance, the fatwā of a most prominent Ḥanbalī jurist of the recent times, ʿAbd al-ʿAzīz b. ʿAbd Allāh b. Bāz (d. 1999) available at: https://binbaz.org.sa/fatwas/3694/%D8%AD%D9%83%D9%85-%D8%A7%D9%84%D9%86%D9%85%D8%B5-%D9%81%D9%8A-%D8%AD%D9%82-%D8%A7%D9%84%D9%86%D8%B3%D8%A7%D8%A1-%D9%88%D8%A7%D9%84%D8%B1%D8%AC%D8%A7%D9%84
 For a contemporary parallel, see Noam Chomsky in his comments on intellectual property rights available at: https://blog.p2pfoundation.net/noam-chomsky-on-intellectual-property/2011/12/25
“Most of the serious research and development, the hard part of it, is funded by the public. . Intellectual property rights has very little to do with individual initiative… Einstein didn’t have any intellectual property rights on relativity theory. Science and innovation [are] carried out by people that are interested in it. That’s the way science works. There’s an effort in very recent years to commercialize it, like they commercialize everything else. So you don’t do it because it’s exciting and challenging, and you want to find out something new, and you want the world to benefit from it. You do it because maybe you can make some money out of it. I mean nothing comes out of the university’s own research . . in your biology lab you can invent something. But I don’t think universities should patent it. They should be working for the public good. And that means it should be available to the public.”
Most recently, he made similar statements in favor of lifting the intellectual property restrictions that prevent sharing the COVID-19 vaccine, available at: https://truthout.org/articles/chomsky-big-pharma-cares-more-about-profiting-from-covid-than-human-survival/
“Take the current situation with vaccines. Unless vaccines go to the Global South, to the poorer countries, to Africa, to Asia, unless they get vaccines quickly, the virus is going to mutate. It’s already happening, you get more lethal strains . . A large part of it is protecting the so-called intellectual property rights of the big pharmaceutical corporations. We’ve got to make sure that they make exorbitant profits, even if we kill ourselves . . This is a malady that is deep-seated.”
There are other calls too for dispensing with intellectual property claims for the Covid vaccines because the public health demands it, see, e.g. https://www.euronews.com/2021/05/06/what-is-the-argument-against-lifting-covid-vaccine-patents:
“The world’s major vaccine-producing countries are for the first time opening the door to the suspension of intellectual property rights for COVID-19 vaccines . . The Doha Agreement provides for the temporary lifting of intellectual property in the event of a public health emergency.”
 Ayatollah Khomeini, Tahrīr al-Wasīlah, 2:752.
 There are also contemporary groups in the West who advance anti-copyright arguments in the name of freedom of knowledge as a right and as fundamental in realizing the right to education, which is an internationally recognized human right. See further the entry on criticism of copyright in Wikipedia available at: https://en.wikipedia.org/wiki/Criticism_of_copyright.
Suggested Bluebook citation: Hossein Modarressi, Theology of Delegation and Its Impact on Islamic Legal Thought, Islamic Law Blog (Aug. 12, 2021), https://islamiclaw.blog/2021/08/12/theology-of-delegation-and-its-impact-on-islamic-legal-thought/)
(Suggested Chicago citation: Hossein Modarressi, “Theology of Delegation and Its Impact on Islamic Legal Thought,” Islamic Law Blog, August 12, 2021, https://islamiclaw.blog/2021/08/12/theology-of-delegation-and-its-impact-on-islamic-legal-thought/)