Alhassanain(p) Network for Heritage and Islamic Thought

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Islam and the Rights of Privacy Territory

Author(s):Abbass Khajeh Piri

www.alhassanain.org/english

Note:

Human rights have always been an interesting and challenging issue of every community.

In thisbook the author has done a wonderful job in dissecting the issues regarding privacy. Whether we talk about privacy on an individual level, social, territorial Oradea any other type of privacy you will find explanations and examples that will help you understandit's importance.

Miscellaneous information:

Islam and the Rights of Privacy TerritoryAbbass Khajeh Piri , Ph. D University Professor and Attorney at Law Reference: Book of Islamic Human Rights (3) Publisher:Bethat Islamic Research Centre (BIRC) Qom - Year of Publishing: 2012/First Edition ISBN: 9766009360925

All rights reserved. Reproduction of the book with written permission from the publisheris permitted .

Notice:

This versionis published on behalf of www.alhassanain.org/english

The composing errorsare not corrected .

Table of Contents

Author's Preface 8

Introduction 9

The Importance of Privacy Right 11

The Meaning of the ‘Privacy Territory’ Concept 13

A. Being private 14

B. Being secure 14

C. Having freedom 14

The Boundary between Privacy Territory and Public Area 15

A. Features of people’s private area 15

B. Characteristics of public area 15

The Necessity of Observing the Privacy 17

The Privacy Territory Domain 19

A. Society’s Customs and Culture 19

B. Society’s Economic Structure 19

C. Society’s Political Structure 20

D. Social Security and General Interests 20

E. Other Rights and Basic Freedoms 20

Instances of Privacy Territory 21

1. Bodily and Corporeal Privacy 21

2. Mental and Psychological Privacy 21

3. Physical Privacy 21

4. Communication Privacy 22

5. Information Privacy 22

6. Personality Privacy 22

7. Religious and Economic Privacy 23

8. Marriage and Family Privacy 23

9. Dignity and Prestige Privacy 24

10. Professional and economic privacy 24

The Importance of Privacy Territory in Islam 26

The Basis of Privacy Right in Islam 27

1) The Principle of human essential greatness 27

2) The Principle of no sovereignty of human beings over each other 28

3) The principle of having no permission of interference within others’ affairs 29

4) The principle of the reverence of Muslims’ blood, possessions and honor 29

5) The principle of being private of people’s personal affairs 30

6) The principle of human beings control over his affairs 30

7) Wisdom and conscience verdict 30

Note 31

The Realm of Privacy in Islam 32

1. Prohibition of investigation and inspection 32

2. Prohibition of illegal entrance to people’s privacy 34

3. Prohibition of revealing secrets and expansion of prostitution 36

4. Prohibition of fault-finding from others 37

5. Prohibition of suspicion to others 40

6. Prohibition of Gossiping about Others 42

7. Prohibition of Any Assault against People’s Reputation 44

8. Prohibition of Tale-bearing 46

9. Prohibition of Eavesdropping 47

10. Prohibition of eyes peeping 48

11. Prohibition of Cursing and Swearing 49

Notes 49

Family Privacy in Islam 51

Notes 53

Islamic Government Duty in Keeping People’s Privacy 54

Notes 55

Legal Violation of Privacy 56

A. Causing disturbance for the public rights and interests 56

B. Disturbing others’ rights 56

C. Promotion of good and prevention of evil 56

The Principle of “Promotion of Good and Prevention of Evil” and Privacy Right 59

The Difference between West and Islam’s Perspective about the Privacy Right 61

Privacy Challenges in Today World 63

References 65

Author's Preface

In the Name of God,The All-Beneficent, the All-Merciful

When invited by the esteemed IRI's cultural attaché in Moscow, in November of last year, I had the honor to travel to Russia, accompanied by the esteemed officials ofBesat Foundation, to closely examine the grounds of expansion of cultural strategies and activities in that territory, so that we could compile an executive plan based on the existing potentials and facilities. We met different top echelon religious and cultural individuals there.

During this visit, we attended a session where officials of religious and cultural affairs of Russia and Tatars tan countries were present, in which they expressed their great interest in Islamic books,texts and even textbooks in Islamic ethics and education.

There is a population of nearly 20 million Muslims in the Russian Federation and particularly in north Caucasia and lands on the Volga riverbank, as well as Muslim and non-Muslims in other countries as addressees in the former Soviet Union who speak Russian fluently. These people have a habit of reading and studying while traveling by the public transportation system.

Translation Movement Institute started its operation nearly a year ago, by translating and electronically publishing texts related to Islamic Education. Such facts caused this institute to address the Russian community and to focus the organization of its activities on them.

Having studied the human rights in Islam for a decade, I decided to write a simplified,fluent and eloquent short book.I made up my mind to translate it into Russian before publishing it. In this text,I intended to introduce and clarify the advanced principles of human rights in Islam.

As suggested by the esteemed managing director ofBesat Foundation, it was decided that the Persian text be published simultaneously with the Russian translated text.I am thankful to the Almighty and pray that I will have the pleasure to continue my endeavors in this regard.

Abbass Khajeh Piri , Ph. D

Introduction

يَا أَيُّهَا النَّاسُ إِنَّا خَلَقْنَاكُمْ مِنْ ذَكَرٍ وَأُنْثَىٰ وَجَعَلْنَاكُمْ شُعُوبًا وَقَبَائِلَ لِتَعَارَفُواۚ إِنَّ أَكْرَمَكُمْ عِنْدَ اللَّهِ أَتْقَاكُمْۚ إِنَّ اللَّهَ عَلِيمٌ خَبِيرٌ

O mankind, indeed we have created you from male and female and made you peoples and tribes that you may know one another. Indeed, the most noble of you in the sight of Allah is the most righteous of you. Indeed, Allah is Knowing and Acquainted. (Quran, 49:13)

The issue of human rights, for being an inherent one, has a history as old as human age on the earth. The subject was bornwhen mankind came into existence on the Earth. The bigger the human society and the population grew, the vaster the human rights issuewas expanded . It has always been the source of freedom-seeking and freedom-fighting movements and it remained the eternal and perpetual ideal ofmankind.

The historians have unearthed documents in their studies and researches that are indicative of the factthat mankind stressed its natural rights and basic freedom and liberty 2000 years before B.C.

The emergence of Islam in 610 A.D. was not only the milestone, but was a golden and perpetual chapter in the human history. Because of the contents of its teachings, particularly in the human rights, itwas welcomed and accepted by the oppressed people in a vast part of the globe and found many followers .

According to a well-known researcher, thinker and scholar,Abul A'la Maududi , the people in the West have the habit of attributing every good thing to themselves and try to prove that it is because of them that the world enjoys this and that blessing, while claiming that “they originated in the West.”

They also have a habit of pretending that all the bestowments and privileges are rooted in the West, whereasthe very first historical document on the human rights, MagnaCarta of Britain, The Great Charter of the Liberties of Britain was issued by John (England's king at the time) in 1215. Though the MagnaCarta itself came into existence six hundred years after the advent of Islam, this and the subsequent documents, as valid and firm evidence, prove that the West is lagging behind Islam on the issue of the human rights. Its failure to pay attention to human dignity and its delay in its fight against oppression and tyrannywhich mankind has suffered during centuries is evident here.

When you study the concepts of the human rights in the Islamicteachings you realize that it is clearly indicative of the fact that the human rights system in the Islamic law and the teachings of the Prophet (S) are much more comprehensive and more perfect than what is claimed in the West. The reason is the fundamental difference between the two legal systems of West and Islam, inviewing mankind and his material and spiritual characteristics. In the Islamic law, criteria of humans’ erudition and wisdom, humanity and spirituality, has been paid specific attention. On the contrary, West's approachto mankind is not based on spiritual and ethical factors.

On the other hand, as ethics and religion can play the role of the strongest support backing the materialization of human rights, strengthening ethical and religious values in every society will cause expansion of support for the human rights. On the contrary, ethical downfall or ignoring religious values, because of having a negative impact, leads to violation of the human rights. Thus, if laws and regulations in forceare left unsupported by the great spiritual and ideological support of the individuals in a society, the ultimate attained consequences will not be favorable. In today's world, failure of the UN's human rights organizations and the international documents (declarations) to address religion and religious beliefs has caused it to fail to develop support of the human rights. The pathetic conditions stemming from violation of the Human Rights that we witness day-to-day around the globe is the result of the above fact.

In the series ofessays which follow, we intend to briefly introduce some of the teachings of pure, true and real Islam. We try to show the legitimacy of the Islamic laws, while comparing it with the West's flamboyant, showy and loud, but empty, baseless claims, so that everyone will know how much human being owes to Islamic teachings and to law of the holy prophet.

And of God to success.

The Importance of Privacy Right

While the issue of the privacy right stands after the right of life, this issue enjoys a significant and a special place among the principal freedoms and rights of people since it is rooted in each human's identity. Hence, itis regarded as the people's personal identities; violation of or absence of this right cause tension, violence, conflicts and mental and physical pains in the people's personal and family lives and their social relations as well.

This also destroys their personal and social security, so that revealing of people's married life's secrets, as an instance of violations of people’s privacy can have irreparably destructive effects on the continuation and unification of their married lives and leads to the destruction of their married lives, causing serious and inappropriate consequences and problems for each individual family member (including wives, husbands and children) and even their relatives.

Doubtlessly, people’s rights and assets are not restricted to their materialistic possessions and assets (such as materialistic rights). They enjoy non-materialistic rights and intellectual and spiritual assets that are of more importance compared to their materialistic ones. The most important intellectual and spiritual assets of peopleare: having legal freedoms accompanying with responsibilities, the right of enjoying personal security and immunity from others’ illegal violence and transgression of their conversations, correspondences, freedoms of speech and thought, security of people’s lives, assets, reputation, dignity and personalities.

There is no doubt that observing the people’s privacyis taken as one of the most important instances of people’s intellectual and spiritual rights and supporting it is considered the guardian of human greatness and personal identity.

Today, the issue of the privacy right is centralized, in a particular way, in the subjects about human rights especially with the development of communicative technologies, expansion of communication and possibility of easier and more accessible to people’s privacy in a cyber form.This centralization of the right of having the privacy among other rights and freedoms is because of this reason that enjoying this right causes the protection of human dignity and greatness, providing individualistic independence, adjustment and expansion of friendly and constant relations among the people of all societies, creation of a constant psychological and mental security and controlling of people’s tensions and conflicts.

On the other hand, the violation of the people’s privacy (whether individual or from the government's side) causes the creation of psychological insecurity and instability in societies, and consequently inappropriate and irreparable results in the areas of individual and social lives.

Supporting of people’s privacy against the general power owners and others has a special role in flourishing of talents and guarding of other fundamental values and human rights. It brings about safeguarding of the human’s lofty position and protecting one’s greatness.

In fact, human beings experience the meaning of the right of life with all his being when he, in his personal shelter and privacy, feels secure and safeguarding about his life, possession, dignity, personality, chastity or his work or residency place. When the sacred castle of his privacy in transgressed by the illegal andobstinate entering of others or the governments, in fact his life is threatened and his belief about life and living under the sense of insecurity and instability will be lost. Therefore, some experts considered the lack of human’s privacy safety the same as taking his right of living and destruction of his humanistic foundation.

Itcan be concluded that: people’s identities are the roots and bases of their privacy and has a close relationship with their lives and their personality structures.Although privacy is a right belonging to each individual of a society member and no one can be denied of this right or be restricted about practicing their right, it should be borne in the mind that observing this right about those people having special and social position and reputation like remarkable scientific, religious, political or art figures will be of more importance and violation of their privacy causes more negative results for them and their societies.

The Meaning of the ‘Privacy Territory’ Concept

The word ‘privacy territory’ is composed of two parts of ‘territory’ and ‘private.’ The first part means restriction and ban, and the second part means personal and being independent. According to the mentioned meanings, the first and simple definition of ‘privacy territory’is: an area that due to its specialty, first, people have the right to decide about themselves independently and exclusively. Second, others do not have the permission to enter and attend there, and the owner of the territory has the right tobe secured against any kind of interference in his private life and affairs made through publicizing of his personal information or by means of physical instruments. Furthermore, he has the right to resist and stand against any unwanted presence and transgression of others in this exclusive area.

Even though there is a general and common interpretation of this term of ‘privacy territory,’ scholars during all ages till now could not present a monotonous and decisive definition for this term due to high dependency of this kind of right to the environmental culture and conditions.Instead of that, for making known the concept of this kind of right (which is one of the most tangible and applicable rights of humanity), they expressed some specifications of that (like individualistic characteristics, religious dependency, political and social opinions and ideas, individualistic and family relationships) or attempted to determine the area of ‘privacy territory’ by separating the private area from public one and based the definition of both these two areas on distinguishing aspects of them.

Based on these aspects, the personal and private area includes just those affairs related to the person’s own life and destiny and others have no detriment or benefit from them. Public area consists of the affairs of whose benefits and detriments not only the person himself, but also others have some shares.

The absence of a decisive and exact definition of ‘privacy territory’is regarded as one of the significant challenges of today's legal systems.The basic reason for disagreements on a single definition for this right is resulted from one side from different elements that have strong effects in determining the area of human privacy (like: cultural and customs, political and economic structure, faiths and society beliefs) and vary from terms and situations point of views in different societies and on the other side from different personal and social states and positions of human, originating from his characteristic complexity and putting them together in a single and simple definition is impossible.

The necessity and significance of presenting a decisive definition for the right of privacy territory is because this causes a suitable and correct recognition of this right and provides the possibility of its safeguarding and supporting against others’ illegal violation and transgression.

To define ‘privacy territory’ as a violation-proof area of each human personal life, considering paying attention to the elements and fundamentals of this right is necessary. These fundamentals are:

A. Being private

In fact, this element is the distinguishing characteristics of the private area from the public one. What is placed in the private area is solely related to the person’s destiny; however, affairs related to the public areas are common among individuals of society and do not have any specific aspect.

B. Being secure

Security and safeguarding of a person’s privacy area against others’ violation and transgressionare taken as the main fundamentals of this right. In the territory of this right, people expect that others cannot access or interfere with their zones of privacy or find command or surveillance over them except with privacy owners’ permission and satisfaction. Security in people’s privacy causes them to be able to keep their personal life's affairs safe from other’s access and violation and to prevent these personal and special data from revealing.

C. Having freedom

On the basis of this important element, people in their own private life can determine their ways of lives freely and independently within their guarded and secure privacy and away from any pressure and imposition and without any anxiety about the disclosing of their private life information decide to what extent and under what conditions others can be informed about his personal affairs or interfere with their privacy.

The result of people’s freedom in their own privacy territory is that they can independently think either at the level of ideas or practically and act accordingly.

The Boundary between Privacy Territory and Public Area

Certainly, distinguishing between the public area and privacy territory in precise form is not a simple and easy task, especially as for determining the boundary between these two areas, some elements like cultural and religious elements, especially the element of religion, has an important and effective role. In the systems based on faith and religious principles, distinguishing of these areascan be done just by paying attention to the scales originated from the religious beliefs of a society.

Special attitudes of divine and Divine religions, Islam’s religious law in particular, to people’s humanistic identity creates a particular necessity for determining people’s privacy territory. We will deal with this issue in the following chapters with full details.

Here, for determining briefly the limits of public and private areas, we describe the features of each of them:

A. Features of people’s private area

Firstly, in the private area, people have no desire that others have access to their personal affairs and desire these affairs to be hidden and away from any surveillance or presence of others.

Secondly, in thisarea people desire to decide about their own personal and private affairs independently and away from others’ guardianship and supervision except in some cases that they, themselves, are satisfied with others’ participation in their decision makings.

From the viewpoint of Islam, in the area of privacy, the person’s behavior and manner are determined by divine decrees of religious law and the Islamic government or ruler doesn’t have any special role in this area and as far as people’s behavior and manner have no external reflection of the society, government has no right to enter and interfere with in that area.

B. Characteristics of public area

Firstly, the affairs placed in this area are common among people and all individuals of a society and this area has no personal or private aspect. Even if these affairs are taking place in people’s privacy, they have the qualifications of general aspects due to their external reflections and social influences.

Secondly, in the domain of public area, some affairs will happen, because the generalizing aspects of this area have no hidden and inaccessible features, unlike people’s privacy that its feature was keeping people’s personal affairs and secrets hidden and concealed.

Thirdly, the affairs of this area are within the power scope of Islamic state and government and the government as a protector of public order, national authority and the people’s trustee can supervise theseaffairs and put them into practice and control that nothing against the public benefits will happen.

Fourthly, in this area, the principal of free stream of information is dominant and people of the society have the right tobe informed about what happens in the society. Therefore, in a public area unlike the people’s privacy, there is no restriction in informing others or prohibition of publication which is a must and necessity in people’s privacy for prevention of revealing of their personal secrets and the government responsibility is informing and utilizing of the principal of the public supervision for managing the society.

The Necessity of Observing the Privacy

In the opinion of the experts and scholars of social sciences, the need for privacy or personal privacy is rooted in the human’s disposition and nature and human by nature desires to build a privacy safe for himself by determining a specific area in order to be alone there without others presence. Thus, people in response to their dispositions’ call by determining an exclusive area and limit consider it as their own secure shelter and find peace and security in it.Some scholars are on this idea that the need of using of the right of privacy, in fact, is not exclusive to human and is a temperamental need common between human and other animals, but the degree of the need and the scope of this right in human is wider and more specialized as he enjoys of higher degrees of power of intelligence and thinking.

The sense of human need to the right of enjoying the privacy territory has a record as old as human life. A short survey in the periods of the history of human life is eloquent of this that since the beginning of human social life, he has determined to find a secure and safe shelter for him and ban others’ presence from there.

This feeling and need are not limited to a particular society or period of human life and in all societies even primitive ones where there were no developed facilities or advanced culture, people attempted to limit others’ transgressions or presence in their privacy by considering systems and regulations.

Hippocrates, who lived about three centuries before Christ, stipulated that those educated in medicine take an oath for keeping their patients' secrets confidential.

Even today, the privacy is in the center of issues related to human rights and freedoms of the mass of the human societies. Considering the issue of privacy, particularly with the advent of modernity and its effects and influences is more in demand in humanistic societies than any other time. The rapid and wonderful developments in the communicative methods and instruments such as mass media and the inclination of such media for presenting some propagandas and publicizing people’s personal life's affairs (especially social and political celebrities) to compete each other with the aim of attracting more audiences are taken as a serious threat for people’s privacy.

Society’s access to developed equipment, technologies, modern communicative and electronic instruments, makes violation and transgression of peoples’ privacy as possible even without the people’s awareness and understanding of such violation and transgression.

Accordingly, not recognizing of one’s privacy by a person is regarded as annihilation of his individuality and within suchstate he will lose his conscience and efficiency.

Every person in his privacy finds this opportunity that away from the presence, impressions of desires, thoughts and impartment of other people of the society and just by relying on his self individuality to think and to face his own self, expose his deeds and acts to the judgment of his conscience and in this way, design the path of his future and without any ostentation and pretension, take the path of his self-correction and refinement and face against difficulties and tribulations. Otherwise a person who has no privacy because of constant and continuous presence among others is deprived of his individuality and never finds the opportunity of dealing with his own individual dimension.

The Privacy Territory Domain

As mentioned before, since the dawn of human life on the earth and the feeling of the possibility of others’ presence and interference in one’s own privacy, humans began to strive for separating and determining the boundaries ofhis own life privacy and public areas. One attempted for considering the separation of these areas as certain and non-vulnerable and determined his privacy based on definite and clear scales and regulations accompanied with determining some examples.

Determining the scope of privacy is of special importance from the point of view that from one side, the possibility of complete and fully-fledged defense of this certain and valuable right is provided; and from the other side, forbids people from transgression or violation of others’ or society individual right which is resulted from not determining a right domain for people’s privacy.

It is clear that if the determining of people’s privacy domainis based on the right and sensible criteria in addition to regarding of every person’s privacy, it guarantees the others’ rights and society benefits and its acceptance from society individuals and governments causes the stability and consolidation of people’s privacy. Otherwise, the grounds for breaking of this privacy because of the contrast between the person’s benefits and others’ or society interestsmay be formed and impedes the continuation and stabilization of practicing of this certain right.

Due to the importance and sensibility of the required criteria for determining the privacy, recognition and counting of the most important elements have direct and considerable influence on determining these criteria. Some of these elements are:

A. Society’s Customs and Culture

Generally, the element of culture in every society has a close relation and direct significant impression in determining the criteria of people’s privacy. The scope of culture includes beliefs, customs, traditions, manner of life and people’s relations with each other in a society and thesemust not be neglected .

The influence of culture is so extent that even the outward and surface structure of people’s lives in a society or the style of a building's architecture can be influential and effective in determining and distinguishing of the scope of people’s privacy.

Noticing the element of culture is in fact regarding the impediments thatare observed in a society and perhaps are not existed in other societies.

B. Society’s Economic Structure

The influence of economic structure in determining the criteria related to the privacy territory is the consequence of the economic influence on personal and social relations in a society.

There is no doubt that the kind of structure and economic situation of a society has a significant and an undeniable influence on regulating of a society people’s relations with each other from one side and with the government from another side.

It should not be expected that social relations in societies based on an open economy and capitalism be identical and the same as societies with the socialistic or common economy. Having an open or closed economic system in a society influences the regularizing of these social relations.

C. Society’s Political Structure

Among influential elements in selecting a proper criterion fordetermining the area of privacy is the structure of government and society political organizations.

The formation of political structure depends on several elements suchas: general culture of the society, historical and political backgrounds of every society and people's individual and social beliefs and tradition. Establishment of a political system in a society without considering these elements will not be durable and stable.

D. Social Security and General Interests

Doubtlessly, one of the important concerns in determining people’s privacy is the influence of this issue on the subjects of social security and general interests and benefits. Because any kind of excess and immoderation in the expansion and spread privacy area can cause the possibility of misusing of this right and violation of the public rights or endangering the social security. Thus, it is necessary to lay out the criteria for determining the scope of privacy in a way that guarantees the impossibility of misusing and any society detriments, especially social security. Where the right of a person’s privacy contrasts with the individuals of a society right of having social security, the prioritymust be taken for public interests.

E. Other Rights and Basic Freedoms

Recognized and considered individual and social rights for human beings are among the most influential elements for determining criteria for the privacy limits. For instance, limits and terms of freedom of speech in a society can have a direct and special role in determining the privacy area of the society individuals, and causes the expansion or limit the people’s privacy area.

The society individuals’ right of free using and access to information also can clearly influence the people’s privacy. It is clear that the expansion of the right of using and access to information as a constant and potential danger can be regarded people’s privacy restricting elements.