An introduction to the public and private debate in Islam - Part I: public/private: the distinction

Social Research, Fall, 2003 by Mohsen Kadivar

In contrast, in the public sphere, nothing is kept secret from or rendered by the citizens: the management, improvement, and alteration of the public sphere are the prerogative of the citizenry. The public domain is the sphere of influence for governmental authority (Dictionary of the Social Sciences, 2002: 392). This domain is jointly owned by all citizens (Ha'eri Yazdi, 1994: 95, 99-108), and as a transparent container, its contents are in everyone's plain view (unless there is agreement that matters pertaining to defense and security should be placed under the supervision of their representatives, and not everyone).

One should not inquire into private matters: prying into these matters should be forbidden, If someone happens to come across private information, further disclosure of that information is not permitted. Managing the affairs of the private domain is the exclusive right of the individual, who also has the right to determine his or her own fate. No one else has priority over an individual in his/her private domain.

Islamic jurisprudence, in accordance with the two criteria given here, fully acknowledges the sanctity of the private domain: there is ample admonition against prying into the affairs of others; preventive measures can be found that guarantee the privacy of personal information and positively support individual fights to property and promote freedom in determining one's course of life. There can be no doubt that Islamic law can fully accommodate the notion of the private domain. The debate lies at delimiting the private domain from what is regarded as public, and we should take account of a number of Islamic rulings that appear to contradict the aforementioned criteria of privacy.

2. Principles of the Private-Public Debate

Now that we have established the criteria to distinguish between private and public matters, it is necessary to further elaborate on the implications of the distinction. Doing so will help us clarify any ambiguities that may arise in cases that are shades of gray rather than black and white.

According to the standards of Sharia, the prima facie status of every issue is that of being not public. In other words, all matters are assumed to belong to the private domain, unless and until they are proved to belong to the public sphere. One may not ask questions about the affairs of other people unless proof is supplied that such issues to be questioned belong in the public domain. Subjecting citizens to search or investigation goes against the prima facie principle (Montazeri, 1411, Vol. 2: 539). Obtaining a search warrant requires legitimate proof and sufficient justification. Yet every citizen is fully entitled to make decisions with regard to himself or herself, while others interfering in matters of his or her concern would be required to present just cause. This is the principle of "excluded wilaya (guardianship)" (Ja'far, n.d.: 37; Ansari, n.d.: 45). It implies that no one has the right to interfere in the affairs of an individual without specific divine permission to do so. This is considered a basic postulate and as such does not require reasoning or proof.