How was personhood defined in Islamic normative texts since the 7th century? One approach to this question is an analysis of texts relating to the unborn. One sort of text tries to solve legal problems. One example would be the issue of abortion; another, the so-called waiting period before re-marriage (idda) after being divorced or widowed. Ideas about the unborn were expressed in such commentaries.
Such issues were addressed in historical texts with respect to the issue of proof. How and after which state of embryological development can an abortion be proven? If an idda ends through premature delivery of an unborn, how can that premature delivery, again, be proven?
In addition, the argumentation turns on discernment of what had actually happened and whether this could be proven beyond doubt. The legal consequences flowed from this prior determination. Accordingly, the fundamental question in these sorts of texts was, whether or not it was indeed an embryo which had left the uterus prematurely. If it was established that the incident under discussion had actually been a premature delivery, for example, a catalogue of legal consequences applied.
At which point of embryological development must the unborn be considered a human person according to the Shari‘a? Certainly this question governs the contemporary tendency to scrutinize the catalogue of legal consequences. But this approach can also be found in texts dating from the first six centuries of Islamic history. Today, however, one issue has gained pivotal importance in bioethical discussions about issues relating to the status of the embryo such as cloning, genetic engineering, abortion, pre-natal testing, and frozen embryos: the role of ensoulment. According to the majority of opinions, ensoulment takes place at the 120th day of pregnancy. After this date the embryo is considered to have the same status as a born human being.
However, these legal statements should not be read as an equation of ensoulment with the attainment of personhood. The historical texts indicate that the aspect of form was not only raised in discussions relating to the embryo because of pragmatic issues of proof. Rather, form was also discussed on a more theoretical level, and in this discussion it was clearly linked to the embryo acquiring a different, elevated legal status. In addition there was also a certain tradition that defined a person (in contrast to a soul) via his or her outer appearance. Josef van Ess illustrates this point in his groundbreaking work on the Islamic theology of the 8th and 9th Centuries C.E., highlighting the pre-Islamic and early Islamic usage of the term shakhs, which for most of Islamic history meant “person,” and signified a silhouette (i.e. the body of a person).
Shape & Outer Appearance
Two additional examples point to the importance of shape/outer appearance in the definition of an individual human being. Q. 17:70 reads, “We have honored the sons of Adam (…) and conferred on them special favors, above a great part of our creation” (Yusuf Ali translation). Over the centuries the exegetes asked what exactly God had given to humankind in order to elevate it over most of the rest of his creation. In commentaries written before the 4th/10th century, they answered: humans eat with both hands and this sets them apart from the rest of creation. Subsequently, commentators started to mention the soul (rūḥ).
A second example shows how the discussion about what defines a human person is linked to issues relating to embryological development. In his exegesis to Q.22:5, one of several Qur’anic passages describing embryological development, Abu Bakr Ahmad al-Jassas, a scholar from the 10th century, delves into a discussion about the legal consequences of a premature delivery. These consequences do not apply, he argues, if the miscarriage occurred in early stages of the pregnancy. The reason: “it does not have a human shape” (sura insaniya). To bolster the point he adds: “This is also attested [by the fact] that the aspect through which the human (al-insan) differs from the donkey or other animals is his existence in this particular form and shape.” The broader framework of the anthropology underlying Jassas’ statement can be gleaned from a recent contribution by Ayman Shihadeh, in which he assembles materials from Islamic normative texts roughly until the 13th century CE.
In keeping with this tradition, I would argue for a stronger consideration of the issue of form in the definition of personhood in Islamic normative texts. Such consideration would add significantly to a differentiated understanding of the anthropology expressed in these texts and the ways that such views on this question have developed throughout the course of history.