The Princeton Encyclopedia of Islamic Political Thought

privacy

The conceptual dichotomy of private and public life is anchored in the Western social sciences; no exact translation of this pair of opposites exists in any of the Islamic languages. As a minimal definition, privacy in the Islamic context refers to the right to remain concealed (ḥaqq al-sitr) and protected from unwanted intrusion. The inviolability of territory is only one of several dimensions in this definition. In addition, the concept of privacy in Islamic societies relates to the highly developed notions of the inviolability (ḥurma) of the human body, regardless of location, and of the inviolability of a person’s or group’s honor (sharaf) that is derived from moral and religious integrity (‘adāla). Such rights protect a person’s privacy even when he or she enters into the public sphere of government control. The line that separated private from public in traditional Islamic societies was defined by the social and historical context, and traditions of political thought about privacy in Islam likewise differed in important respects according to the various perspectives adopted in jurisprudence (fiqh); in the ethico-theological tradition; and by those writing under the patronage of political power, the authors of chancery documents, Mirrors for Princes, chronicles, panegyric poetry, and the like.

Political Elites as Private Bodies

Privacy as defined earlier could be claimed not only by the subjects of political rule but also by those in power. Medieval Islamic governments, especially after the militarization of society in large parts of the Islamic world beginning in the tenth century, were largely disconnected from their subjects. Political elites conceived of themselves as an autonomous and extrajudicial “private” body. The men of the regime (khawāṣṣ)—namely, all those who were distinguished (khāṣṣ) by their share in the task of governing—together inhabited a self-regulatory realm of reward and punishment that was strictly separate from the public arena of the commoners (‘awāmm). The sphere of the khawāṣṣ was internally stratified according to closeness to the ruler who presided over it. Different degrees of proximity to the ruler included participation in court ceremonies and audiences, membership in the group of the ruler’s boon companions and intimate advisors, and access to the ruler’s harem (usually restricted to close relatives).

Political writers of the premodern period gave rulers the power to discipline the khawāṣṣ at their discretion; the ruler must educate (rawwaḍa) and lead (sāsa) them but at all times protect their privacy. The court secretary Ibn Hamdun (d. 1166) judged that an offense committed by a member in the private realm of the court (dhanb al-sirr) required a punishment meted out in private (‘uqūbat al-sirr). Only on the extreme occasion when the khawāṣṣ fell from grace––for example, when they had revolted against their patron—could they lose the privilege of being disciplined within the confines of the court; medieval chronicles occasionally mention the ritual ejection and public display in the city of disgraced amirs after their execution at court.

Levels of Inviolability of the Ruled

Jurists and ethical writers of Islam defended the right to concealment of the subjects, which was always precarious under the conditions of military government in medieval Islam. The Qur’an (24:27) states, “Do not enter houses other than your own unless you have asked permission and greeted the inhabitants!” There is also a general injunction not to pry and spy on people (49:12). As Eli Alshech argues in his article on the evolution of the notion of the domestic sphere, around the tenth century, Islamic legal doctrine underwent a change from a mechanical, occupancy-based notion of privacy to the interpretation of privacy as a value in itself, regardless of legal claims to rightful tenancy. Transgressions against privacy, such as acts of voyeurism, were increasingly threatened with punishment. Jurists aimed such restrictions not only at ordinary citizens but also, and perhaps primarily, at the agents of the repressive state apparatus. Medieval legal manuals detailing the duties and prerogatives of the government-appointed market inspector and censor of morals (muḥtasib) specifically stipulate that the muḥtasib is entitled to prosecute only openly visible and apparent wrongdoings (munkarāt ẓāhira). He is not allowed to spy on people in their homes or violate their property rights (ḥuqūq al-irtifāq).

Islamic law also emphasizes the right and the duty to protect the inviolability (ḥurma) of the human body. A free man’s “zone of shame” (‘awra) is defined as the area between the navel and the knees; a free woman’s is the whole body except the face and hands (and, according to others, the feet and forearms). These body parts are to be covered, but rules tend to be less strict in relation to family members. In general, among members of Muslim society, relational standing rather than the sanctity of specific places seems the key to understanding privacy in Islamic law. The jurists’ concern for the inviolability of the human body can also be seen in their broad condemnation of punitive mutilation (tamthīl; with the shari‘a punishments for theft and brigandage—namely, the amputation of hands and feet—as an exception) and in their refusal (with some post-Mongol exceptions) to allow judicial torture.

The ethos of protecting private behavior from the intrusive gaze of others, or even of keeping sins hidden and not divulging them to the public, is anchored in both the Qur’an and hadith; it is a hallmark of all later Islamic legal and ethical writings. On the other hand, discretionary state punishment based on the interest of the state (siyāsa), particularly the practice of ignominious parading (tashhīr), the medieval Muslim equivalent of the Western pillory, was often aimed directly at destroying the convicted person’s honor and reputation. Jurists of the classical period usually opposed such transgressions against people’s right of privacy, although they tended to distinguish between different levels of honorability: the less honor was at stake, the more public state punishments could be. According to the Hanafi jurist Abu Bakr b. Mas‘ud al-Kashani (d. 1189), descendants of the Prophet and the jurists must only be made to suffer a private reprimand from the judge. Noblemen (ashrāf) are to receive a reprimand from the judge in the public setting of the court. The middle classes (awsāṭ) are punished with reprimand in the judge’s court and with imprisonment. Finally, the nether classes (sifla) suffer public reprimand, imprisonment, and beating.