Accessible Requires Authentication Published by De Gruyter October 19, 2019

The Islamic and Western Cultures and Values of Privacy

Sattam Eid Almutairi

Abstract

The paper provides valuable accounts of the general concepts underlying privacy law in both cultures, and great detail about the impact of criminal procedure and evidence rules on privacy in reality rather than legal theory. It is, in this sense, a “realist” approach to privacy, particularly but not exclusively in relation to sexual activity. The distinction which the article draws between the frameworks within which privacy is conceived broadly, self-determination and limited government in the USA, protection of one’s persona in Europe, and reputation in Islamic law. However, the paper argues that Western and Islamic traditions share many of the same concepts about the tests to be applied when deciding how far an intrusion on privacy is justified and value many of the same interests in doing so. At the same time, it will highlight those areas where they differ which are not ones of crucial importance when deciding, for example, what are the proper limits on mass surveillance. Indirectly, this shows that even though there may be stark differences between the cultures on some points, there is enough agreement on some aspects of privacy to make comparisons in relation to issues such as mass surveillance.

Acknowledgements

The author would like to sincerely thank John O’Dowd, an academic in UCD School of Law, for his incredibly detailed and thoughtful feedback that has immensely improved the quality of this work as well as his insightful and considerate comments from which this paper benefitted greatly.

References

Ahmadi, S. 2011–2013. “Islam and Homosexuality: Religious Dogma, Colonial Rule, and The Quest for Belonging.” Journal of Civil Rights and Economic Development 26: 537. Search in Google Scholar

Al-Dughmi, M. 1985. Spying and Its Rulings in Islamic Shari’a, 131. Cairo: Dar Al Salam. Search in Google Scholar

al-Ghazālī, A. 2005. Ihya'ul ulumuddin, 801–802. Beirut: Dar Ibn Hazm. Search in Google Scholar

Al-hameem, A. 2004. Respect the Private Life and Privacy in Shari’a Law and Comparative Law, 87. Amman: Dar Ammar. Search in Google Scholar

Alshech, E. 2004. “‘Do Not Enter Houses Other than Your Own’: The Evolution of the Notion of a Private Domestic Sphere in Early Sunni Islamic Thought.” Islamic Law and Society 11 (3): 291, 327. Search in Google Scholar

Alshech, E. 2007. “Out of Sight and Therefore Out of Mind: Early Sunni Islamic Modesty Regulations and the Creation of Spheres of Privacy.” Journal of Near Eastern Studies 66 (31): 278. http://www.jstor.org/stable/10.1086/524180. Accessed 16 November 2016. Search in Google Scholar

Alwani, T. 1995. “The Rights of the Accused in Islam.” Arab Law Quarterly 10 (1, 3): 14–15. Search in Google Scholar

Badawy, T. 2009. “Toward a Contemporary View of Islamic Criminal Procedures: A focus on the Testimony of Witnesses.” Arab Law Quarterly 23 (3): 269, 291–92. Search in Google Scholar

Beitz, C. 2011. The Idea of Human Rights, 112. Oxford: OUP. Search in Google Scholar

Brownsword, R. 2014. “Human Dignity from a Legal Perspective.” In The Cambridge Handbook of Human Dignity, edited by M. Duwell, and others, 17. Cambridge: CUP. Search in Google Scholar

Delany, H., and E. Carolan. 2008. The Right to Privacy: A Doctrinal and Comparative Analysis, 8. Dublin: Thomson Round Hall. Search in Google Scholar

Donnelly, J. 2013. Universal Human Rights in Theory and Practice, 3rd ed., 123. Ithaca: Cornell University Press. Search in Google Scholar

Duwell, M. 2014. “Human Dignity: Concepts, Discussion, Philosophical Perspectives.” In The Cambridge Handbook of Human Dignity, edited by M. Duwell, and others, 24. Cambridge: CUP. Search in Google Scholar

El-Awa, M. 2003. “Confession and Other Methods of Evidence in Islamic Procedural Jurisprudence.” In Criminal Justice in Islam, edited by M. Abdel Haleem, A. Omer, and K. Daniels, 121. London: Tauris. Search in Google Scholar

El Guindi, F. 1999. Veil: Modesty, Privacy and Resistance, 82. Oxford: Berg. Search in Google Scholar

Feldman, D. 1999. “Human Dignity as a Legal Value.” Public Law Part I: 682, 698. Search in Google Scholar

Gilsenan, M. 1983. Recognizing Islam: Religion and Society in the Modern Arab World, 179. New York: Pantheon. Search in Google Scholar

Grimley, M. 2009. “Law, Morality and Secularisation: The Church of England and The Wolfenden Report, 1954–1967.” The Journal of Ecclesiastical History 60: 727. Search in Google Scholar

Hill, T. 2014. “Kantian Perspectives on The Rational Basis of Human Dignity.” In The Cambridge Handbook of Human Dignity, edited by M. Duwell, and others, 22. Cambridge: CUP. Search in Google Scholar

Hussein, G. 2003. “Basic Guarantees in Islamic Criminal Justice System.” In Criminal Justice in Islam, edited by M. Abdel Haleem, A. Omer, and K. Daniels, 37–38. London: Tauris. Search in Google Scholar

Ibrahim, S., and N. Mehemeed. 2003. “Basic Principles of Criminal Procedure under Islamic Shari’a.” In Criminal Justice in Islam, edited by M. Abdel Haleem, A. Omer, and K. Daniels, 19. London: I.B Tauris. Search in Google Scholar

Kadivar, M. 2003. “An Introduction to the Public and Private Debate in Islam.” Social Research 70: 659, 663. Search in Google Scholar

Kamali, M. 2008. The Right to Life, Security, Privacy and Ownership in Islam, 159. Cambridge: The Islamic Texts Society. Search in Google Scholar

Kersten, S. 2014. “Kantian Dignity: a Critique.” In The Cambridge Handbook of Human Dignity, edited by M. Duwell, and others, 222–25. Cambridge: CUP. Search in Google Scholar

Khleif, P. 1998–1999. “‘There goes the Neighborhood!’ Sexuality and Society in the Seventeenth Century Kayseri.” The Arab Studies Journal 6/7: 128. Search in Google Scholar

Marcus, A. 1986. “Privacy in Eighteenth-Century Aleppo: The Limits of Cultural Ideals.” International Journal of Middle East Studies 18(2): 165.10.1017/S0020743800029779 Search in Google Scholar

Maroth, M. 2014. “Human Dignity in Islamic World.” In The Cambridge Handbook of Human Dignity, edited by M. Duwell, and others, 155. Cambridge: CUP. Search in Google Scholar

Mayer, A. 2014. “The Islamic World and The Alternative Declarations of Human Rights.” In The Cambridge Handbook of Human Dignity, edited by M. Duwell, and others, 409. Cambridge: CUP. Search in Google Scholar

O’Dowd, T. 1995. “Dignity and Personhood in Irish Constitutional Law.” In Justice and Legal Theory in Ireland, edited by G. Quinn, A. Ingram, and S. Livingstone, 177. Dublin: Oak Tree. Search in Google Scholar

Omer, A. 2003. “Generalities on Criminal Procedure Under Islamic Shari’a.” In Criminal Justice in Islam, edited by M. Abdel Haleem, A. Omer, and K. Daniels, 8. London: Tauris. Search in Google Scholar

Rössler, B. 2005. The Value of Privacy, 17. D Glasgow tr, Cambridge: Polity Press. Search in Google Scholar

Saifee, S. 2003. “Penumbras, Privacy, And The Death of Morals-Based Legislation: Comparing U.S. Constitutional Law with The Inherent Right of Privacy in Islamic Jurisprudence.” Fordham International Law Journal 27: 414. Search in Google Scholar

Sensen, O. 2011. “Human Dignity in Historical Perspective: The Contemporary and Traditional Paradigms.” EJPT 10(1): 76–68. Search in Google Scholar

Solove, D. 2006. “A Taxonomy of Privacy.” University of Pennsylvania Law Review 154: 477, 488. Search in Google Scholar

Thomson, J. 1975. “The Right to Privacy.” Philosophy and Public Affairs 4: 295. http://links.jstor.org/sici?sici.. Accessed 12 November 2016. Search in Google Scholar

Stilt, K. 2011. Islamic Law in Action: Authority, Discretion and Everyday Experiences in Mamluk Egypt, 97. Oxford: OUP. Search in Google Scholar

Waldron, J. 2012. Dignity, Rank, and Rights, 25–26. Oxford: OUP. Search in Google Scholar

Warren, S., and L. Brandeis. 1890. “The Right to Privacy.” Harvard Law Review 4: 193.10.2307/1321160 Search in Google Scholar

Westin, A. 1967. Privacy and Freedom, 31–32. New York: Atheneum Press. Search in Google Scholar

Whitman, J. 2004. “The Two Western Cultures of Privacy: Dignity Versus Liberty.” Yale Law Journal 113: 1154. Search in Google Scholar

Published Online: 2019-10-19
Published in Print: 2019-10-25

© 2019 Walter de Gruyter GmbH, Berlin/Boston