Privacy Rulings Based on Islamic Sources (Book)
Privacy Rulings Based on Islamic Sources (احکام حریم خصوصی بر اساس منابع اسلامی) is a book written by Mohammad Soroush Mahallati in the field of social jurisprudence (*Fiqh al-Ijtima'i*). According to the author, Islam respects privacy and has established specific rules and restrictions for its preservation (such as the prohibition of spying (*Tajassus*), the necessity of having a favorable opinion (*Husn al-Zann*), and the principle of validity (*Asalah al-Sihhah*)). He explains numerous rulings that indicate the inviolability of the home and the restriction on entry, looking, and eavesdropping, and he criticizes the viewpoints that condition this inviolability. Furthermore, he considers the prohibition of spreading indecency (*Isha'ah al-Fahsha'*) as a jurisprudential rule that forbids the disclosure of any hidden reality damaging to one's reputation, and he considers its exceptions (such as testifying or the public shaming (*Tashhir*) of a criminal) to be very limited.
| Privacy Rulings Based on Islamic Sources (Book) | |
|---|---|
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| Book Information | |
| Author | Mohammad Soroush Mahallati |
| Subject | Social Jurisprudence |
| Style | Analytical |
| Language | Persian |
| Publication Information | |
| Publisher | SAMT / Research Institute of Hawzah and University |
- Abstract
In another section of the book, Soroush Mahallati addresses the behavior of the government. In his view, the primary principle (*Asl Awwali*) is based on the prohibition of violating privacy, and government intervention is acceptable only with a judicial warrant, precise religious criteria, and legal oversight. He deems the laws of the Islamic Republic insufficient in this regard and emphasizes the precedence of the people's rights over the interests of the government. Soroush considers the broad interpretation of "waging war against God and society" (*Muharabah*) in Iranian law to be contrary to jurisprudence, and he points out the restrictions on security entry into the privacy of citizens. Even in the selection of officials, he permits investigation only to the extent of verifying competence, not through unconventional methods.
Introduction to the Book
Privacy Rulings Based on Islamic Sources is a book in the field of social jurisprudence. This book was published by the Research Institute of Hawzah and University and SAMT Publications in 2015 (1394 SH) in 222 pages. The author of the book, Mohammad Soroush Mahallati (born 1961 (1340 SH)), is a teacher of jurisprudence (*Fiqh*) and principles of jurisprudence (*Usul al-Fiqh*) in the Islamic Seminary of Qom, and a researcher in the science of jurisprudence, especially political jurisprudence. The books The State and the Implementation of Sharia and Foundations of Privacy Based on Islamic Sources are among the other works of the author in the field of contemporary jurisprudence.
Structure of the Book
The book begins with a table of contents and an introduction by the author and ends with a list of sources and indexes. The discussions of the book are organized into two main sections and appendices. In the first section (where most jurisprudential discussions are raised), the rulings on privacy are examined in the form of nine discourses. In the first section, the author demonstrates that Islam, by emphasizing the inviolability of privacy, has established specific rules and restrictions to preserve it and considers the violation of this privacy a sin.
In the second section, issues related to the government's entry into the privacy of citizens are examined in four discourses. In this section, the author mostly engages in the pathology of the government's behavior toward citizens and uses jurisprudential discussions and arguments less frequently. In this section, he delineates the boundary between individual rights and government authority, and accepts government intervention in the privacy of individuals only in limited cases and by observing religious and legal principles.
In the appendices section, which comprises a significant volume of the book (pp. 151-202), the aforementioned rulings in the first and second sections are applied to the viewpoint of Imam Khomeini, the fatwas of contemporary jurists, and the laws of the Islamic Republic of Iran.
Privacy Rulings
Favorable Opinion as a Deterrent Factor from Invading Others' Privacy
According to Soroush Mahallati, the issue of invading privacy is one of the common subjects of ethics and jurisprudence that is rooted in negative opinion (*Su' al-Zann*) (pp. 8-9). He differentiates between negative opinion and good trust (*Husn al-I'timad*), warns against trusting individuals based merely on a favorable opinion (*Husn al-Zann*), and critiques the viewpoint of some researchers who have considered negative opinion permissible in certain cases (pp. 13-16). The author criticizes the viewpoint of Mulla Ahmad Naraqi, who limited the scope of favorable opinion in jurisprudence to a "just and reliable believer" (*Mu'min 'Adl Thiqah*), and believes that, based on the principle of validity (*Asalah al-Sihhah*), if a person has some lapses, one cannot investigate his other faults, and the lack of complete trust in individuals does not mean the permissibility of having a negative opinion toward them (pp. 17-20). Soroush Mahallati believes that favorable opinion is a deterrent factor against spying (*Tajassus*), which forms the basis of the principle of validity in jurisprudence; the principle of validity means that in addition to avoiding pessimism about others, their suspicious actions should not be deemed a sin, although this does not mean that all good consequences should be attached to the person's action (pp. 20-24).
Rulings Indicating the Inviolability of the Home
The author considers the prohibition of spying to be an indisputable ruling among jurists and deems incorrect the viewpoint of those jurists who have restricted the prohibition of spying to investigating faults, considering it to encompass inquiry into any hidden matter (pp. 28-29). He proceeds to examine various jurisprudential rulings that indicate the inviolability of individuals' living places:
- Restriction on entry: Entering others' homes without asking permission is forbidden (*Haram*), and the reason for this ruling is not the prevention of a potential sin (such as seeing the women of the house) (p. 32).
- Necessity of observing parents' privacy: In Verse 58 of Surah al-Nur, the privacy of parents is recognized as a right, and its reason is not the possibility of them being unclothed (pp. 34-35).
- Restriction on the method of entry: In Verse 189 of Surah al-Baqarah, God has emphasized observing the inviolability of the home, prohibiting entering it through unconventional means by an authoritative decree (*Hukm Mawlawi*). In Soroush's belief, the use of eavesdropping devices and hidden cameras is equivalent to entering the home and falls under the ruling of the verse (pp. 36-38).
- Restriction on looking: All Islamic sects agree on the prohibition of looking into others' homes. In Shia jurisprudence, it is also stated that the homeowner can defend his privacy against individuals who look into his premises without permission with the intention of removing the nuisance, even if the defense results in blinding the person (pp. 40-41). Some jurists have considered the permissibility of blinding specific to the case where preventing the nuisance is not possible through easier methods. For this restriction, they have cited the diversion of evidence (*Insiraf al-Adillah*), the abandonment by jurists (*I'rad al-Fuqaha'*), and the application of the criterion of defense in this case. The author does not accept any of these arguments and responds to them (pp. 42-47). He proceeds to examine the conditions of the subject of the ruling and concludes that the narrations do not include looking into an empty house, and the look that constitutes a nuisance is looking at the people of the house, even if the people of the house are men and covered (pp. 49-50). He also believes that this look can be generalized to indirect looking and looking with a camera or other tools, but the ruling of looking cannot be applied to eavesdropping (pp. 51-52).
- Restriction on the boundary (*Harim*): The home has a boundary, and the possibility of utilization and access to it must exist. In the model of Islamic architecture, emphasis is placed on houses not overlooking one another (pp. 52-54).
Soroush Mahallati concludes by pointing out that the aforementioned rulings for the inviolability of the home also include other exclusive places (such as a garden), but do not encompass public places (p. 54).
Prohibition of Spreading Indecency as a Jurisprudential Rule
The author introduces keeping secrets (*Razdari*) as an ethical and jurisprudential concept that plays an effective role in protecting privacy. Some jurists have restricted the necessity of keeping others' secrets to the secrets of Muslims, not considering it to include the secrets of others, but the author doubts the correctness of this understanding (pp. 56-60). Soroush Mahallati clarifies the prohibition of spreading indecency (*Isha'ah al-Fahsha'*) and proposes two possibilities regarding its meaning: 1. Broadcasting the news of a sin, 2. Expanding the sin. Relying on the viewpoint of the general exegetes, jurists, and lexicographers, he accepts the first meaning and believes that based on this meaning, no one has the right to recount the hidden realities of others' lives, the disclosure of which would damage their reputation. Based on narrations and the rational understanding of human beings regarding disclosures, which they consider the cause of darkening human relations, he treats the prohibition of spreading indecency as a rule (pp. 63-67).
Exception of Testifying from the Rule of the Prohibition of Spreading Indecency
Jurists consider revealing a secret permissible when testifying in court; rather, they deem it obligatory if two conditions are met: 1. Not testifying leads to the violation of a right and injustice; 2. He had previously been requested to bear witness. Late jurists have rejected voluntary testimony (*Shahadah Tabarru'i*) regarding the rights of people (*Haqq al-Nas*), but they disagree on accepting it regarding the rights of God (*Haqq Allah*) (pp. 61-62). In another section of the book, the author examines their disagreement in more detail. Some jurists, citing the establishment of religion, the revival of Sharia, and the forbidding of wrong (*Nahy 'an al-Munkar*), consider offering testimony obligatory, but the author deems their argument incomplete and criticizes it. Conversely, some jurists believe that in this issue, the evidence for the obligation to preserve a believer's honor conflicts (*Ta'arud*) with the interest of executing physical punishments (*Hudud*), and for this reason, one refers to the principle of permissibility (*Asl al-Ibahah*). However, the author considers this issue an instance of the category of overlapping duties (*Tazahum*) (not conflict), and assuming a conflict, due to the connection of this issue with people's honor (*'Ird*), he bases the primary principle on its prohibition (pp. 69-73).
Soroush proceeds to a brief examination of the evidence for the validity of testimony. By examining the verses related to testimony for fornication (such as Verse 15 of Surah al-Nisa) and the narrations in this section, he concludes that the verses and narrations are not in the position of stating the ruling on testimony in terms of obligation or permissibility, nor in terms of the need for the ruler's demand or volunteering; therefore, in cases of doubt regarding the permissibility of testimony, one must adhere to the rule of the prohibition of uncovering a believer's faults, except in cases where, according to the discernment of the Islamic ruler and based on the opinion of experts, social consequences would follow, in which presumption the government can request testimony from knowledgeable individuals. According to the author, it is inferred from jurisprudential rulings that for sins occurring in private and secretly, the principle is based on non-proof and non-execution of punishment (pp. 73-79).
Exception of the Punishment of Public Shaming from the Rule of the Prohibition of Spreading Indecency
In Shia jurisprudence, it is permitted to introduce criminal individuals to the public in four cases: 1. Sexual mediation (pimping), 2. Financial fraudsters, 3. False accusation of unchastity (*Qadhf*), 4. False testimony. According to the author, only the last case is explicitly stated in narrations (*Mansus*), and jurists do not hold a uniform view on the other three cases. Nevertheless, he believes that even if the four cases are accepted, public shaming (*Tashhir*) in these instances does not mean exceptions to privacy; rather, public shaming is a response to crimes that occur in the public sphere. Furthermore, in the author's belief, the purpose of the public execution of physical punishments (*Hudud*) is to deter the occurrence of a crime, not to dishonor the criminal. Hence, he does not consider the media exposure of the accused, let alone criminals—except in specific cases carried out with a judicial warrant—to be religiously permissible (pp. 79-83).
Cases of Permissibility of Spying and Its Restriction to Overt Behaviors
Soroush Mahallati has examined several jurisprudential issues that might somehow be interpreted as permitting entry into individuals' privacy, issues such as the condition of justice (*'Adalah*) in matters like leading congregational prayers (*Imamah al-Jama'ah*), judging, and giving testimony in court. According to him, although jurists consider investigation and examination necessary to verify justice, the permissibility of searching is restricted to overt behaviors and normal communications and does not encompass a person's hidden matters; as in some narrations, investigating individuals with apparent righteousness (*Zahir al-Salah*) is forbidden. He believes that the rule of the prohibition of spying governs all rulings, and jurists have not violated it in any personal matters (pp. 83-89).
The Violator of Privacy Becoming a Transgressor and the Necessity of Discretionary Punishment
According to the author, a person who has violated the privacy of others is a transgressor (*Fasiq*) and deserves discretionary punishment (*Ta'zir*). The reputation of an accused whose privacy has been violated must be restored, and the damages inflicted on him (whether material or moral) must be compensated. The testimony of the person spying is not accepted in court, because due to the prohibition of spying, he is a transgressor, and in an Islamic court, only the testimony of a just person (*'Adil*) is accepted. If a government agent wishes to enter a person's private space without presenting a judicial warrant, the individual can defend his privacy (pp. 89-96).
Necessity of Observing the Privacy of Non-Muslim Citizens
According to the author, the regulations of the Islamic state are equal for all citizens, whether Muslim or non-Muslim, and are not restricted to the followers of a specific religion (p. 100). In his view, the general rulings of Islam are also common among all, hence observing the security of his home and his privacy is necessary. Although some jurists apply certain ethical rulings of Islam, such as the prohibition of backbiting (*Ghibah*), cursing (*Sabb*), and negative opinion (*Su' al-Zann*), only to Muslims, Soroush Mahallati, following jurists like Mirza Na'ini, considers these rulings as common ones. Regarding rulings specific to Muslims (such as the prohibition of drinking alcohol), he believes that even if followers of other religions are obligated to these secondary principles (*Furu'*), they are only forbidden from openly committing sins, but they are not required to observe it in private or in their public ceremonies (pp. 100-103).
The Government's Entry into the Privacy of Citizens
In examining the issue of the obligation to preserve the political system, after analyzing various scenarios, Soroush Mahallati does not consider jurisprudence (*Fiqh*) to be the final authority for determining its rulings due to the flexibility of its issues; because jurisprudence explains fixed rulings. However, in a general statement, he believes that the political system is a prerequisite (*Muqaddamah*) for preserving Islam and the rights of the people; therefore, except in cases where trustworthy experts deem a specific action necessary for preserving the system and permit its execution based on the rule of overlapping duties (*Tazahum*), Islamic values (the primary objective or *Dhi al-Muqaddamah*) should not be sacrificed for the system (the prerequisite) (pp. 105-108). According to the author, although in all legal and political schools, the interest and security of society take precedence over the rights of individuals, identifying its instances is outside the scope of the legislator and at the discretion of the executors, and to prevent abuses, government intervention is restricted by law, and civil institutions can oversee the performance of the state.
The Primary Principle is the Prohibition of Violating Privacy and the Possibility of Violating it Only with a Judicial Warrant
In the issue of privacy violation, he establishes the primary principle (*Asl Awwali*) on the prohibition of violating privacy, unless there is an authorization and a convincing reason. Moreover, the violation of privacy is only possible if the violator possesses a judicial warrant for their action. The author has mentioned conditions for the issuer of the judicial warrant: 1. Precise knowledge of religious criteria and legal regulations, 2. Moral rectitude and faith-based commitment, 3. Independence of opinion. He considers the transparency of judicial criteria a necessary matter and enumerates principles for it (pp. 109-112).
Precedence of the People over the Government in the Security of the Political System
In this work, the arbitrary entry of judicial officers into individuals' privacy is forbidden, and the laws of the Islamic Republic of Iran in this regard are deemed vague and insufficient; therefore, certain shortcomings and problems in this area have been examined, matters such as the diversity and multiplicity of officers and their extensive authorities, the lack of clarity regarding the scope of evident crimes, and ambiguity in legal authorizations (pp. 113-121). The author believes that the security approach of the Islamic state has indicators that provide restrictions for observing privacy, but the axis of security in the Islamic political system is the people, not the government. Relying on narrations and historical documents, he has analyzed these indicators (pp. 121-124).
Unacceptability of the Interpretation Provided for Waging War (Muharabah) in Iranian Law from a Jurisprudential Perspective
In the author's view, entry into privacy from a security perspective is permissible, but conditioned upon a precise and unambiguous definition of security crimes and their scope. Among security crimes, he explains two crimes: waging war (*Muharabah*) and subversion. According to Soroush Mahallati, *Muharabah* in jurisprudence applies only to drawing a weapon on people to frighten them and for the purpose of corruption in society, while in Iran's positive laws, a broader interpretation is provided for it which is unacceptable from a jurisprudential perspective. He also divides the opponents of the Islamic system into five categories and, from a jurisprudential viewpoint, considers only one group as an instance of the crime of subversion: "Those who seek subversion and system change through non-peaceful methods and resorting to weapons." Citing legal articles, he has analyzed this subject (pp. 124-133).
Necessity of Observing Humane Criteria Even in Crisis Situations
Although in crisis and emergency situations, the observance of normal criteria is set aside to a limited extent, the author considers determining the crisis situations and observing humane criteria (such as the prohibition of torture) necessary. Soroush, relying on laws and the opinion of jurists (*Huluqdanan*), explains instances such as the decision-making authority in crisis situations and the importance of observing the rights of those accused of security crimes (including the presence of a jury and public hearing of charges according to certain principles of the Constitution, including Article 168) (pp. 133-140).
Prohibition of Using Unconventional Methods for Selecting Officials
Soroush Mahallati, in the issue of selecting government officials, relying on Imam Ali's (a) governmental epistle to Malik al-Ashtar, considers relying merely on a favorable opinion toward individuals undesirable, and deems the verification of the necessary conditions for government service necessary, even if it entails backbiting or spying. However, he limits the scope of exception to the prohibition of backbiting and spying both in terms of the radius of the spying and the method of the spying; such that, on the one hand, inquiry is permitted only in the area of verifying those exact competencies and necessary conditions (not personal matters), and on the other hand, unconventional methods (such as using wiretaps or installing hidden cameras) should not be used for this purpose (pp. 142-145).