Note: Dr. Abdolmajid Moghbeli, in addition to his scholarly activities in the fields of humanities and Islamic sciences, is also considered an active figure in cyberspace. This enables him to have both theoretical and practical familiarity with cyberspace. The former editor-in-chief of Hamshahri Kheradnameh discussed the jurisprudential dimensions of overseeing the enforcement of laws and policies regarding cyberspace. He identified one of the most significant challenges in this regard as the presence of qualitative and ambiguous concepts in laws, which leads to arbitrary enforcement of these laws. He also pointed to solutions for making these terms transparent and quantifiable. The full text of the exclusive interview by Contemporary Jurisprudence with the faculty member of the Research Institute for Humanities and Cultural Studies is presented for your consideration:

Contemporary Jurisprudence: Does Islamic jurisprudence offer specific recommendations or propositions regarding the oversight of the enforcement of laws and policies in cyberspace?

Moghbeli: This question is very broad and encompasses various aspects. In response, I can say that yes, the discipline of Islamic jurisprudence provides principles and recommendations governing the oversight of law enforcement.

For example, from the perspective of Shiite jurisprudence, safeguarding individuals’ privacy and protecting their secrets is a fundamental principle and a cornerstone of any oversight-based conduct, which also applies in cyberspace. Therefore, from a jurisprudential perspective, unauthorized intrusion into individuals’ lives is unacceptable and not endorsed by our jurists. To elaborate further, if there are more significant interests that lend legal and jurisprudential legitimacy to such intrusion or entry into private domains, then the necessity of preserving privacy may be qualified. A hadith stating that if someone looks into another’s home without permission, their blood is forfeit, in a sense, underscores the importance of privacy and the protection of individuals’ rights.

From this perspective, we can say that oversight of law enforcement, provided it is bound by the condition of being just, is acceptable. However, if this oversight leads to the unjust violation of individuals’ rights and privacy and is characterized by oppression, it is by no means acceptable.

At the same time, another principle to consider is the responsibility of the government. The government’s responsibility is tied to safeguarding the public interest of society. Therefore, oversight of cyberspace aimed at protecting public interests, in a manner that does not unjustly violate privacy, is desirable.

It must be acknowledged, however, that adhering to these conditions is a difficult and complex task. Consequently, this matter is a challenging and significant issue that has rarely been the subject of detailed study or analytical scrutiny.

Contemporary Jurisprudence: What are the most important jurisprudential issues concerning the oversight of the enforcement of laws and policies?

Moghbeli: Cyberspace, as one of the most critical domains of human activity in our era, is highly challenging in the present age. Due to this complexity, it is associated with jurisprudential questions, discussions, and issues that naturally require precise examination and alignment with Islamic principles. In a sense, the enforcement of laws and policies in this domain, due to the complexity and diversity of topics, as well as the novel and emerging nature of many issues, has created a complicated situation from the perspective of jurisprudential engagement and scholarly approaches, making the task particularly challenging.

Several issues can be raised here. One is determining the boundaries of what is permissible (halal) and forbidden (haram) in cyberspace. Specifically, identifying where the lines of halal and haram are drawn in this space and what is permissible or forbidden is a significant matter. These boundaries are sometimes clear and evident, but at other times, they are complex and unclear—such as the ruling on using others’ personal information or disseminating content that involves slandering another person. Additionally, the issue of freedom of expression in cyberspace and its demarcation from forbidden acts such as insult, gossip, and so forth is another concern.

Resolving these issues is a prerequisite for discussing the oversight of law enforcement. The issues I have mentioned have not yet been seriously and thoroughly discussed in the discipline of Islamic jurisprudence. Until the jurisprudential stance on these matters is clarified, it is not possible to address legislation or the requirements for overseeing law enforcement. For instance, until the jurisprudential position on intellectual property is clarified, it is not possible to take a specific stance on content copying or consider it a form of theft.

Another point that needs to be discussed regarding the oversight of law enforcement is the scope of responsibility of the Islamic government and its supervisory institutions. What is the role of the government and supervisory institutions in enforcing laws and policies in cyberspace? How can this oversight avoid creating conflicts between domestic and international laws in the realm of cyberspace? In cases of conflict between national and international laws, which takes precedence?

Contemporary Jurisprudence: In the realm of overseeing the enforcement of laws and policies, can one act based on maslahat (public interest), or must one act solely based on the law?

Moghbeli: This is a critical, important, and sensitive question. In the domain of governance and cyberspace law, we must distinguish between two levels: one is acting based on the law, and the other is maslahat within the framework of the law. As we know, the principle in a legal system and governance structure is to act in accordance with the law. That is, the enforcement of laws, because it leads to the establishment of order and, subsequently, justice, takes precedence over everything else. Naturally, this enforcement of laws ensures transparency, accountability, and the realization of a just society.

On the other hand, since maslahat is not explicitly stated in the law, if the law’s enforcer relies on maslahat, this leads to the arbitrary application of the law and, consequently, the violation of citizens’ rights. However, the issue is not that simple. We can speak of maslahat within the framework of the law. In some legal cases, provisions have been made to systematically consider maslahat in relation to public affairs. In the context of cyberspace, which is the subject of our discussion, the authority of institutions such as the Supreme Cyberspace Council, the Supreme National Security Council, certain judicial and executive bodies, and the Expediency Discernment Council are all aimed at systematically incorporating maslahat into laws. However, as I mentioned, this authority or legal capacity must not lead to the creation of a lawless society or one with an unstable legal framework. The solution is to codify maslahat into law.

In other words, acting based on maslahat without legal backing, which itself is rooted in Islamic and jurisprudential principles, lacks legal and jurisprudential legitimacy. However, if maslahat is considered within the framework of the law and competent legal institutions, based on the principle of the law’s priority in a guided and systematic manner, it can even lead to greater flexibility, capability, and efficiency in the legal system.

Contemporary Jurisprudence: Do qualitative and non-quantitative terms such as maslahat (public interest), adalat (justice), hosn-e ejra (proper execution), and the like lead to arbitrary methods of oversight? What solutions exist for quantifying these terms, and which institution (jurisprudential or non-jurisprudential) should undertake this task?

Moghbeli: This question stems from the previous one and, in a sense, seeks to expand and elaborate on it. The question points to an important and critical issue. This challenge is significant in the realm of discussions related to governance, public law, constitutional law, and especially in areas concerning cyberspace, where we face rapid transformations.

In response to the question, “Do qualitative terms lead to arbitrary enforcement?” it must be said: Yes, we cannot deny this potential. Terms such as maslahat and hosn-e ejra lack clear and definitive meanings and are considered open and multilayered discourses. This very nature increases the possibility of their subjective interpretation and constitutes a pervasive challenge in the legal system.

Now, what should be done to address this issue, and how can qualitative terms be transformed into quantitative concepts? My approach here is to show a degree of empathy with the questioner. Otherwise, if I were to pose the question myself, I would not base my approach on this quasi-positivist understanding, as I am not entirely in favor of quantification and objectification.

However, if we proceed with empathy, developing indicators or indexing and establishing measurable criteria can bring us closer to quantification and objectification. For example, instead of hosn-e ejra, we could use indicators such as the rate of achieving program objectives, user satisfaction in cyberspace, complaint response rates, process transparency, and similar matters. In my view, however, this does not lead to quantification but rather to precision and verification. Or, for instance, if we use the important concept of adalat (justice), we could make it measurable by specifying that we mean distributive justice, equal opportunity, non-discrimination, justice in access to the internet, justice in access to information, or justice in protecting resources under the personal jurisdiction of users in the internet domain.

Another solution is to enhance transparency in procedures and processes, which can be achieved through mechanisms, processes, and approaches such as drafting executive and operational guidelines.

Transparency can also be institutionalized through methods such as establishing feedback systems, creating monitoring and evaluation systems for cyberspace-related situations, and, in effect, analyzing data and assessing the performance of implementing institutions.

Another solution is oversight by independent institutions. Requiring supervisory bodies such as the National Cyberspace Center, the Administrative Justice Court, and the General Inspection Organization to report on their interpretations of justice and other qualitative concepts is another approach.

It seems that, in this regard, the assistance of academic institutions and research centers to lawmakers is highly important. These centers must provide the necessary scholarly framework for drafting laws and make it available to legislative bodies, particularly the parliament.