The Basis of Privacy Right in Islam
A challenge that the western legal system has always encountered with about the human right has been the instability in the basis and the impossibility of determining a definite area for each recognized right of humanity. The fundamental reason for that is the lack of existing a determined of evaluating system.
In Islam, any human rights relies on evaluating regulations and principals which their recognition causes the stability of these rights and prevent of creating any challenges in applying them.
A fast review over the main bases of privacy right in the Islamic legal system expresses the depth of Islam perspective about this human obvious right:
Islamic perspective about the basis of human right (including human privacy right), unlike western materialistic and humanistic thought (which is captured by instability and not having an identity because of not considering the spiritual dimension of human being’s existence), considers the principle of human being’s essential greatness and honesty.
Islamic religious law based on the essential greatness of human beings, recognized some rights for him and one of these rights is ‘privacy territory right’ for each human being.
Human being that is meant by Islam is a character that in addition to his physical and bodily dimensions has a spiritual and divine dimension to which from the spirit of God is blown.
وَنَفَخْتُ فِيهِ مِنْ رُوحِي
When I have shaped him and ran my created soul in him fall down prostrating towards him. (Quran, 15:29)
Human being’s divine and spiritual dimension causes his distinction from other beings and grants his honesty and greatness.
The great Quran expresses human being’s superiority over other beings in this way that:
وَلَقَدْ كَرَّمْنَا بَنِي آدَمَ وَحَمَلْنَاهُمْ فِي الْبَرِّ وَالْبَحْرِ وَرَزَقْنَاهُمْ مِنَ الطَّيِّبَاتِ وَفَضَّلْنَاهُمْ عَلَىٰ كَثِيرٍ مِمَّنْ خَلَقْنَا تَفْضِيلًا
We have honored the children of Adam and carried them on both land and sea. We have provided them with good things and greatly preferred them above much of our creation. (Quran, 17:70)
Safeguarding and keeping of people’s greatness is dependent on the recognition and keeping of one’s privacy and when a person keeps others’ privacy, he in fact respects human beings’ dignity and greatness. Based on this, Islam determined strict regulations for violation and transgression of people’s privacy and regarded that a fundamental strategy in its own criminal law.
Safeguarding of people’s privacy in Islamic laws is because Islam considers human beings as the basic foundation of every construction and training and takes his dignity and privacy vital and necessary.
From the perspective of Islamic religious law absolute guardianship is exclusive to the Godly Being and just the unique God has the rule and sovereignty over all people’s lives, possession and affairs.
The Holy Quran in expressing the principle of monotheism insists on the divine absolute sovereignty:
وَهُوَ اللَّهُ لَا إِلَٰهَ إِلَّا هُوَ ۖ لَهُ الْحَمْدُ فِي الْأُولَىٰ وَالْآخِرَةِ ۖ وَلَهُ الْحُكْمُ وَإِلَيْهِ تُرْجَعُونَ
And he is Allah; there is no god except him. The praise is his in the former as in the latter. His is the judgment; to him you shall be returned. (Quran, 28:70)
Meanwhile the Holy Quran explicitly rejects any kind of sovereignty that its origin neither is nor divine:
إِنِ الْحُكْمُ إِلَّا لِلَّهِ ۚ أَمَرَ أَلَّا تَعْبُدُوا إِلَّا إِيَّاهُ ۚ ذَٰلِكَ الدِّينُ الْقَيِّمُ وَلَٰكِنَّ أَكْثَرَ النَّاسِ لَا يَعْلَمُونَ
He has commanded you to worship none except him. That is the right religion, yet most people do not know. (Quran 12:40)
Therefore, the necessity of this basic and obvious principle is that people have no sovereignty over each others’ lives, possessions and personal affairs except the case that for such sovereignty enough sensible reasons based on Islamic religious law are offered.
It is obvious that where there are doubts and ambiguities because of lack of any logical reasons or causes based on the Islamic religious law about the sovereignty over others, by referring to the general principle of human beings’ dignity, a verdict for removing of people’s sovereignty over each other must be issued as applying any illegal sovereignty of people over each other is against the principle of human being’s freedom and result in preventing him from utilizing his freedoms and natural rights and consequently is regarded transgression and cruelty to him.
In the regulations of illustrating religion of Islam, guardianship in the interdicted people and infants’ affairs named under the title of “non-litigious jurisdiction” is recognized and its basis is safeguarding their rights and observing of the public interests.
Additionally, sacred Islam religious law firstly legalized the sovereignty of Islamic governor that is the continuation of the great Prophet of Islam (S) and his pious and eligible successors in the framework and realm of Islamic religious law. Secondly, by considering special conditions for Islamic governor such as piety and his practical obligation to Islamic percepts, exerting the sovereignty puts him out of the circle of his personal interests. Thirdly, except in some cases that the public’s interests necessitate, the governor’s sovereignty is just applied in the public area and private area is kept safe from his transgression as much as possible. Fourthly, for recognition and clarification of the public interests and prevention of any kind of illegal misusing and transgression of people’s privacy, Islamic religious law presented a definite mechanism so that Islamic governor has power of sovereignty within that defined area.
Obviously, Islamic governor’s sovereignty is resulted from the Divine Absolute Sovereignty, granted to him in a determined area and till the time he has the required qualifications clearly, this sovereignty is applicable and as soon as he loses these qualifications, he will be deposed from automatically and his eligibility of sovereignty will be lost.
In Islam’s legal system, prohibition of inference within people personal and privacy is taken as one of the strategic principles and according to it firstly, all people enjoy freedom of acting in their own private affairs. Secondly, any interference of others within people’s privacy is against the general principle of not interference and only the case is legal that the privacy owner demands such interference or permits others to interfere with his privacy.
The concept of interference does not necessarily mean taking a physical action but any concealed supervision and surveillance of others, investigation or inspection in people’s affairs or revealing of their secrets or deficiencies is considered as a kind of interference or transgression of their privacy and is in contrast within the principle of interference prohibition.
An obvious instance of this principle is the freedom of having opinions on Islam. The Great Quran rejects the unwilling of accepting an idea and stated:
… قَدْ تَبَيَّنَ الرُّشْدُ مِنَ الْغَيِّ…
Righteousness is now distinct from error. (Quran, 2:256)
In the area of privacy, although Islam determined individual obligations in the path of perfections and elevation for human beings, it has no interference in what they do in their privacy. When human being takes actions to present his speeches and deeds in public as an expression of his speeches and deeds in the area of society qualify for effectiveness, he is responsible for them like apostasy that due to its social effectiveness of Islam religion law there are particular decrees and verdicts for it.
The Islamic religious law makes any violation or transgression of Muslims’ blood, possessions and honor illegal and according to this general regulation no one can transgress to others’ lives, possessions and reputations.
The Prophet of Islam (S) in a sermon expressed in Hujjat al-Wida’a’ (fare welling Hajj (pilgrimage to Mecca) among a large mass of Muslims, by emphasizing on this principle states: “O! Muslims, your blood (lives) and possessions are illegal for each other till the Doomsday.”1
The respectful Prophet of Islam (S) takes the reverence of Muslims’ blood, possessions and honor as the reverence of Kaaba and urged everyone to keep this reverence and mutual respect.
Safeguarding of the Muslims’ lives, possessions and reputations is of the very first rights of each member of Islam’s society and besides every one’s personal obligation for safeguarding of people’s privacy, Islamic government is obliged to take necessary strategies for protection of this obvious right and face transgressors and offender of people’s lives, possessions and reputations seriously.
It should be noted that the principle of people’s lives and reputations in an Islamic society is not exclusive to Muslims and all people living in the territory of Islamic government enjoys this right even non-Muslims and others have no right to transgress or offend them as long as they do not plot and conspire against Muslims.
In the eyes of Islam, a legal norm is on privacy of people’s personal affairs and being public of theses affairs necessitates proof and reasons. Therefore, investigation and questioning in affairs related to people are not accepted and legal except the cases proved by reasons are instances within a public area and is related to society and others.
The principle of human’s ruling over his own affairs is based on a narration stated from the respectful Prophet of Islam that is accepted by all Muslims unanimously that: “People have control over their own possessions.”
Although the Prophet’s statement apparently is related to the human’s control over his possessions, according to the logical principles and most importantly this principle is not exclusive to the human’s financial rights and includes all human rights such as his divine, spiritual and non-materialistic rights. According people have control over all the affairs of their rights and lives and it necessitates that they have no right to rule over others’ rights.
The Great Quran states people’s control over their destinies and lives in this way that:
…إِنَّ اللَّهَ لَا يُغَيِّرُ مَا بِقَوْمٍ حَتَّىٰ يُغَيِّرُوا مَا بِأَنْفُسِهِمْ…
Allah does not change what is in a nation unless they change what is in themselves. (Quran, 13:11)
People’s control over his affairs even includes his privacy and any illegal and without-reason control and prevalence of others’ over people’s privacy is the breach of this important base and is against the principle of human’s complete dominance over his destiny and is not allowed for anyone.
Obviously, the area of this dominance principle just includes the legal rights of human beings and those affairs that their fulfillments require corruption and its expansion or committing prohibited actions are out this principle inclusion.
Certainly, unwanted and imposed inspection and presence in people’s privacy and keeping this privacy under surveillance and investigation in people’s private affairs are of such affairs that every healthy mind and pure conscience censures and every fair and healthy human regards them sins and faults.
- 1. Sireyeh Ibn Hesham, Vol.2, P. 603