Political Science

One of the widely, of not universally recognized rights of human beings is the right to privacy. This right is accepted by several nations and communities at different levels and with varied interpretation (Beitz). In todays society, both governments and private corporations and organizations maintain huge databases of information concerning the live and habits of private citizens. This has raised great concern with regards to the citizens human rights (Goss).

Scientific and technological advances have also enabled governments to eavesdrop on the citizens communications and monitor their activities with the results of such monitoring being presented to the courts as evidence (Kasper).

In the presence of these factors, the varying interpretations of the human right to privacy according to different ideologies and systems of belief and the question of legality and ethical justification of the governments attempts at monitoring their citizens lives assumes a great importance.

Like many other nations, the classical Islamic nation too has its own conceptions of an individuals right to privacy,Researchers have noted some similarities between classical Islamic thought and modern Western thought on the issue of the right to privacy. Eli Alshech argues that the rationale for Islamic laws includes from the outset, the desire to create a private sphere free from outside interference for the individual (Alshech).

It must be made clear that in my research for this topic, I have not come across the mention of  any classical texts of Islamic law that explicitly mentions the right to privacy of an individual, the sources that do so, are all modern works, however a number of them have cited classical texts of Islamic law that speak on the various rights and duties of a Muslim regarding their fellow Muslims and several of these rights concern issues that are included in the modern understanding of the right to privacy.

Of these issues, the foremost is the right to be free of unwarranted suspicion and investigation from government agencies. Several nations have tried to impose restrictions upon the extent of the monitoring a government can legally perform. In the United States, for example, law enforcement official that feel the need to eavesdrop on the communications of a citizen must first give justification for this and obtain the consent of a federal judge before performing this invasion of privacy (Stinchcombe).

The trespassing of private property by law enforcement officials is also a cause for concern. There are also legal requirements in place to restrict law enforcement officials from entering a persons private residence or any private property without consent of the owner or searching an individuals car or clothing or to searching inside their homes for contraband substances or weapons (Stinchcombe).
In addition to governments direct monitoring of the citizens activities another great concern, often expressed in the mass media are governmental attempts to get citizens to spy upon one another. This is often portrayed as one of the characteristics of fascist or communistic societies like East Germany where it is said that neighbors, relatives, even husbands and wives and parents and siblings were recruited to spy upon each other.

All these concerns are reflected in Islamic Scriptures and classical works on Islamic Law.

The Prohibition on Unwarranted Suspicion and Spying
In the Quran it is said
O ye who believe Shun much suspicion for lo some suspicion is a crime. And spy not, neither backbite one another. Would one of you love to eat the flesh of his dead brother  Ye abhor that (so abhor the other) And keep your duty (to Allah). Lo Allah is Relenting, Merciful.(The Quran 4912)

This Quranic verse enjoins believers to assume innocence and good faith in other people and to avoid suspecting them of evil intention and wrongdoing. Abu Bakr al-Jassas said in his exegesis that this verse forbids the Muslims from being suspicious about a persons hidden sins if they do no public acts of wrongdoing and enjoins them to hide the sins of people who are not obvious and insistent upon their sins (ibn Masud).

The word Tajassus in Quran, that has been translated as spying carries connotations of curiosity, spying, nosing around or being a busybody. This word is vast in meaning and can encompass both social gossiping and rumor mongering and governmental intrusion upon the privacy of individuals (ibn Masud).

Prohibitions of Tajassus often occur within the context of encouragement of virtue and prohibition of vice, a moral duty for all Muslims. Scholarly treatises on the issue of such reformative or missionary work call for the exercise of extreme caution while conducting this activity, lest the right to privacy of individuals be violated (ibn Masud).

People appointed as religious police (Hisba) or private citizens intending to enjoin the good and forbid evil are warned they must only speak to someone about those of their faults which are apparent and obvious and not engage in spying. Al-Ghazali says in his Ihya that it is not allowed for the religious police to engage in spying in the matters of the person who hides his faults inside his home and closes his door (Karim).

Hisba officials are enjoined to break only those forbidden musical instruments that they find in display out in the open (Shiloah).

In Ibn al-Jawzis Talbis al-Iblis (The Devils Deception) one of the actions of the unwise preacher (who has been deceived by the devil into doing evil when he intends good) is listed as breaking down the door behind which people gather to commit sinful acts (al-Bakri).

Ibn al-Jawzi says that it is not correct for a one who wishes to forbid evil to stand outside houses trying to hear if someone is listening to unlawful musical instruments or to sniff around and see if the smell of alcohol is coming from within a house (al-Bakri).

The prohibition on being unnecessarily suspicious of people and of spying on them has been reinforced through warnings of divine wrath and punishment upon the person that engages in such actions. In a narration, those that search for the faults of others have been warned that in punishment for this act their own faults would be made public by God (Azami).

The prohibition of unnecessary suspicion and spying is not restricted to private citizens alone, narration exist which explicitly forbid rulers and governors from engaging in suspicion as well. In a narration of the Prophet in Sunan Abu Dawud, it is said that the ruler who engages in suspicion and seeks to make imputations upon people corrupts them (ibn Masud).

When governmental spying is prohibited or severely restricted, a second question arises. What if the government breaks the prohibition and engages in unlawful spying and while engaged in this unlawful campaign of intrusion upon private matters of individuals, the government comes across important evidence incriminating a citizen in an unlawful act, what is the government to do then

This question has been answered in various ways by Muslim jurists, the admissibility or inadmissibility of information received through spying has been a source of controversy in Islamic legal opinions for many centuries. However the general rule adopted by at least one school classical Islamic (Sunni) scholars, the Malikiyah is that such evidence may not be presented into court and may not be considered by a judge as constituting proof against the accused (Hasani).

The Forbiddance of Entering the Private Place of a Person without Permission
The primary scriptures of Islam have several clear injunctions on the subject of the forbiddance of entering a persons home without permission. It is said in the Quran

O ye who believe Enter not houses other than your own without first announcing your presence and invoking peace upon the folk thereof. That is better for you, that ye may be heedful.

And if ye find no-one therein, still enter not until permission hath been given. And if it be said unto you Go away again, then go away, for it is purer for you. Allah knoweth what ye do.  (The Quran 2428)
The command to ask for permission before entering is not restricted to those living in separate houses, rather it is a general command encompassing all private places of a person. A succeeding verse in the same chapter enjoins the believers to forbid their slaves and even their children, who would generally go around all parts of the house unrestricted, from entering their private quarters without permission at three times during the day before the pre-dawn prayer, in the afternoon and after the the night prayer (The Quran 2458). The obvious reason for this command is to prevent intrusion upon the privacy of couple that wish to engage in conjugal relations in these three times.

There also exists a wealth of narrations in the corpus of Hadith literature from the Prophet and the members of the early Muslim community on the subject of the necessity of asking for permission before entering another persons house.

Narrations in Sahih al-Bukhari enjoin a person wishing to enter into private area to ask for permission to enter at most three times. If they receive no reply from those inside the private area, it is incumbent upon them to turn back and not keep standing at the door (Saroha).

The narrations on this topic are numerous, as we can see from some of the sub-chapter titles in Adab al-Mufrad (Miscellaneous Manners) of al-Bukhari on the topic of asking permission before entering a private space, these include Chapter on Asking Permission from Ones Mother, Chapter on Asking Permission from Ones Father, Chapter on Asking Permission from Ones Father and Ones Son, Chapter on Asking Permission from Ones Sister, Chapter on Asking Permission from Ones Brother (Azami).

Due to the severity with which the act of intruding upon someone was considered a crime, some of the members of the early Islamic community were extremely cautious in this regard. Ibn Umar, for example, one of the companions of the Prophet and the son of the second Caliph, would ask the owner of a market stall permission to stand in the shade of his stall (Azami).

The order regarding not entering a private space without permission is not just considered a social nicety but is an important part of the Islamic society with far reaching legal consequences. The police and the governmental officials are also enjoined to refrain from entering someones private space without their permission. In this regard one of the famous narrations from the early Islamic community which serves as precedent for the members of the orthodox Sunni schools of law involves Umar ibn al-Khattab the second Caliph of Islam.

According to this narration  the Caliph Umar ibn al-Khattab once suspected wrongdoing inside a house, climbed the walls of the house and witnessed immoral behavior going on inside. The owner of the house, upon seeing the Caliph, addressed him saying Oh Commander of the Faithful, if I have disobeyed God once, you have disobeyed him three times Umar ibn al-Khattab asked the man for explanation, and he replied with the Quranic verse that prohibits spying (The Quran 4912), the Quranic verse which directs believers to enter houses by their doors (The Quran 2185) and the verse which requires believers to ask permission of the owner of a house before entering it (The Quran 2427). The Caliph accordingly did not punish the man, but went away exhorting the man to repent from his evil action (Sedgwick).

This incident has been cited as evidence in books of Islamic jurisprudence, not only of the duty of a governmental official to ask for permission before entering the private residence of an individual but also been cited as evidence regarding the invalidity of using evidence obtained through spying (Hasani).

The prohibition against spying and against entering a persons private space has had far reaching implications in the political and social realms. It has allowed religious and social movements, unpopular with the government of the time to survive in the private sphere despite facing prosecution in the public sphere, for example the Sufi orders have survived in the Hijaz region of Saudi Arabia despite official condemnation, by shifting their gatherings from Mosques to private residences (Sedgwick).

The Prevention of Glancing Inside Anthers Private Space without Permission
Muslim tradition views the home as a sanctified and sacrosanct space. The Arabic words for house are also used in a symbolic sense for Mosques and the Holy Mosque in Mecca (Marcus). The houses position as a sacrosanct place demands that it should be free from the prying eyes of unwanted people (Celik).

Traditional Muslim homes and neighborhoods are designed to ensure visual privacy especially for the womens quarters (Abu-Lughod).The insides of homes are constructed in such a way that often mens areas are visible from womens areas but the womens areas are not visible from the mens areas (Abu-Lughod).

In traditional Islamic cities the use of cul-de-sacs cut-off from the main roads to create semi-private areas and sharp turns at the entrances of houses further impede visual access to the inside of homes. In addition official building regulations often required that the doors of houses on opposite sides of the streets should not face each other (Abu-Lughod).

These regulations find there source in the scriptures of Islam where glancing inside another persons private space without permission is forbidden.

In al-Bukharis Adab al-Mufrad there are several narrations where the believers have been enjoined to refrain from casting glances and peeking through the open doors and windows of other peoples houses. Some of these narrations declare that there is no sin upon a person that if the person being spied upon, throws something at the one who is spying and it hits an eye of that person, blinding them (Azami).

The Prohibition Against Eavesdropping on the Private Conversations of People
Islamic laws forbid a Muslim from trying to hear the private conversation of two people. According to Islamic belief, a person who tries to listen in on other peoples conversation which they do not wish to share with them, shall be punished in the afterlife with having molten lead poured in his ears (al-Alwani  DeLorenzo).

The right to privacy extends to written communications as well. Islamic rules forbid people from reading the letters of others. The act of one who takes a peek inside the personal letter of his fellow Muslim is likened to taking a peek into hellfire (ibn Masud).

Encouragement of Hiding the Secrets Weaknesses of a Fellow Muslim
One of the important issues in protecting the privacy of another person from an Islamic perspective is to not reveal those facts about that person, that one might have inadvertently gained knowledge of, that they would wish to keep secret.

In Islam the act of keeping unseemly facts about other Muslims a secret and thus preserving their honor, is seen as an act of great virtue. According to a narration the one who keeps the private sins of another Muslims a secret, God will keep his failings a secret in this world and after-world (Azami). According to another narration the heavenly reward for keeping the sins of a Muslim secret is equal to the reward of one who saves the life of an infant girl child buried at birth (a common form of infanticide in pre-Islamic Middle-East that is severely condemned in Islamic scriptures) (Azami).

The opposite act i.e. broadcasting a fellow Muslims private sins, spreading rumors and backbiting is condemned in the most explicit and severe terms. People who promulgate the sins of their fellow Muslims are warned of the punishment of Hellfire.

As we have seen previously, back-biting another Muslim is condemned in the Quran and likened to eating the dead flesh of a Muslim brother.

In a narration from the Prophet, the Muslims have been warned against trying to humiliate their fellow Muslims by recalling their past wrongdoings which they have now repented from. According to the narration, the doer of this action shall face divine punishment in the form that they shall not die till they have committed the same crime or sin with which they taunted their fellow believer (Saroha).

Conclusion
Islamic law and belief contain a number of provisions to protect the right of privacy of an individual. Sometimes these rights are enforced through legal order and at other times through warnings or promises regarding the after-life.

Islamic scriptures forbid people from spying upon one another. A governments intrusion in the private affairs of the citizens is restricted in Islam. A widely followed school of Islamic law declares that the evidence against someone obtained through spying may not be brought as evidence in an Islamic court.
In Islamic law a persons home is sacrosanct. Other people may not enter a persons home without their permission this extends to the government officials as well. Books of Islamic law forbid government officials from entering a private residence without first greeting the inhabitants of the building, declaring who they are and seeking permission to enter into the house.

The issue of peeping toms or people who like to peek inside other peoples homes are another aspect of the right to privacy. In Islamic law the action of someone that glances inside open windows and doorways into a persons house is regarded as an especially reprehensible action deserving of punishment. Islamic law on the subject of peeping toms mention that the person that intrudes in the privacy of an individual by glancing inside his doorway or window deserves no recompense if the owner of the house pokes out his eyes.

Islamic rules forbid Muslims from trying to listen in on a private conversation between two people. Letters and written communications of an individual also form part of the sacrosanct private aspects of a persons life. Islamic rules forbid people from glancing inside the letter of another individual..Islamic rules also prevent people from digging old embarrassing details about peoples past in order to humiliate them with it and from making public the personal sins that they commit in secret.