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

Social Research, Fall, 2003 by Mohsen Kadivar

This incident in early Islamic history is indicative of people's freedom at the time and also clearly portrays the sanctity of the private sphere. Committing a sin in the private sphere is not the government's concern. If there is a consequence to sin (failure to repent), it also belongs to another domain--that between God and the sinner. It does not belong to this world, and it is not within the authority of the ruler. In summary, one can claim that Islam recognizes the sphere of private life. Private information and the affairs of the individual are left to the individual's recognizance, and no one, not even the government, has the authority to inquire or investigate anyone's private domain. Furthermore, in the case of having been privy to such information, no one has the right to disseminate another's private information. Probing for personal opinion is prohibited. If someone has committed a sin in his or her private domain, there is no need to confess it before anyone, or to any authority, including a judge or the government; the preference is to repent and keep it unpublicized. In the Sharia, intruding into a person's private domain, searching and probing into it, and disseminating such information is itself a sin, and in addition to worldly penalties, it is subject to divine punishment (see, for example, Najafi, n.d.: 660). Therefore, the rights of the individual in his or her private sphere are guaranteed to a higher degree in an Islamic society than in a secular one.

5. Freedom of Action in Private Sphere

One of the principal attributes of the private domain is the right to free choice; the individual is free to make any arrangements in his or her private sphere, and no one else is entitled to set priorities for him or her in that space. The prophet in a famous tradition clearly stated: "People have control over their property" (Majlesi, 1363, Vol. 2: 272; Aameli, n.d.: 381). No one can intrude on another individual's property without the owner's consent. Jurists have derived a jurisprudential principle from this tradition, known as "the principle of sovereignty," which implies that whoever controls a piece of property is recognized as its rightful owner (Montazeri, 1408-1411, Vol. 1: 495). Another principle, in support of private life in the Islamic culture, is the "principle of lack of vilaya (guardianship)" (Montazeri, 1408-1411, Vol. 1: 27). No one has the right to oversee and set priorities for others, unless having credible religious appointment by the divine. The result of these two principles is individual freedom in private life, within the framework of Sharia. On this basis, selecting an occupation, spouse, name, form of living, and clothing are the components of private life. Adhering to the Islamic criteria, people are completely free in the private domain.

The individual, in his or her private space--which we call home--is on his own, and away from the public eye. There, he or she would be free to act, even though it may be a sin. There is only one condition to this freedom, which is that it cannot harm anyone else. That is all. But as soon as the individual enters the public domain, there are limitations that are imposed on him or her by the law, in any society. Individuals in the public domain are limited with regard to clothing, sexual behavior, and certain forms of social conduct that may vary from one culture to another. In an Islamic society--one in which the principal rulings of Islam underlie the penal code--specific limitations in the public domain are imposed on individuals. This can be compared to limitations imposed in other cultures, including those in the West. These limitations, which can be grouped into such categories as clothing, sexual relations, eating, and drinking, along with economic and even religious relationships, show the private sphere in Islamic culture to be smaller than the norm in the contemporary world, and accordingly show the Islamic public domain to be further stretched than that prevalent elsewhere in the world. In the context of religion, to overstep these boundaries is to commit a sin, and in a society whose laws are based on Sharia, committing a sin in the public domain is a crime, and subject to punishment. What is required to be observed in the public domain is the outer manifestations of religious conduct, be it in performing trade or in performing religious rituals. It is evident that the essence of religion cannot be evaluated, except by the individual conscience and by God. Therefore, even in the public domain, the intent and the essence of an act is not enforceable, and only the outer or visible layer of the acts must comply with legal requirements. Since religious edicts encompass all aspects of human life, and the obligatory rulings separate a considerable number of actions into either necessary to carry out or necessary to abstain from, leaving the necessaries and committing the forbidden acts that would on the surface reflect negatively in the public domain have been prohibited. "Commanding good and prohibiting evil" (al-amr bi al-Ma'ruf wa al-nahy 'an al-munkar) is one of the most important Islamic necessities, without which one cannot sufficiently resolve the public-private debate in Islam. In other words, individual freedom in the public domain becomes limited by this necessity; therefore, we need describe the scope of its effect and the sphere of its influence.