Note: Hujjat al-Islam wa al-Muslimin Mohammad Kahvand is one of the clerics who is not only familiar with modern technologies but also seriously engages in content and product production in this field. A member of the Cyberspace Steering Committee at the Center for Management of the Islamic Seminary, he has founded one of the most important computer game production companies and has been engaged in research and production in the realm of cyberspace and technology for years. We discussed with him the requirements of legislation in cyberspace. While complaining that the basis of legislation in the country is a minimalist approach to jurisprudence, whereas effective laws are those written with a maximalist approach, he noted: It should not be imagined that all violations in cyberspace must be criminalized. The full text of the exclusive interview by Contemporary Jurisprudence with this researcher and cyberspace activist is presented for your consideration:
Contemporary Jurisprudence: What dimensions and requirements does legislation regarding cyberspace have?
Kahvand: All dimensions and layers of cyberspace require laws. You must legislate and turn the law into executive regulations. The law must have enforcement guarantees or criminalization, and all actors and stakeholders must fall under it.
Contemporary Jurisprudence: Is desirable legislation in the realm of cyberspace based on accepting maximal jurisprudence, or can desirable legislation in this realm be achieved with minimalist jurisprudence as well?
Kahvand: Currently, the jurisprudence that forms the basis of our legislation is minimalist jurisprudence. We have very major flaws in the legal domain; we have gaps in a significant portion of our laws. Some parts of our laws are very old, and we have no laws at all for contemporary and new issues. In these matters, even if we have laws, it is still maximal jurisprudence that can solve our problems; otherwise, with minimalist jurisprudence that considers mere non-opposition to the sharia sufficient for the legitimacy of a law, we cannot pass efficient, precise, and enforceable laws. It is this maximal jurisprudence that, with a governmental approach, a forward-looking perspective, and the accompaniment of a vast subject identification apparatus, can issue fatwas that serve the legislative and legal system.
The same presuppositions that were raised in the realm of cyberspace governance and which I addressed in another interview in this same magazine also apply here.
Of course, one point must be noted: the sharia does not consider all sins deserving of hudud and diyah; therefore, in legislation, not all violations should be criminalized. In some places, the sacred legislator has sufficed with ethical recommendations; in others, he has given mandatory rulings without considering worldly punishments such as hudud and diyah for them; and in some cases, in addition to otherworldly punishment, worldly punishment has also been considered. This indicates that in legislation, firstly, we should not bring all violations into the law, but in some cases, suffice with ethical recommendations and allow users to reach a level of maturity where they themselves realize the incorrectness of the matter. In other cases, enacting a law does not mean necessitating criminalization according to it; rather, one can enact the law but in some cases, suffice with enacting the law and not impose criminal penalties for violators.
Contemporary Jurisprudence: Should all jurisprudential propositions regarding cyberspace be turned into corresponding laws? In other words, is the maximal conversion of jurisprudential propositions into law a desirable matter?
Kahvand: Wherever the legislator has placed hudud and diyah, it is evident that the sharia has been sensitive to it, and therefore, both legislation and criminalization must be done. But in cases where the sharia has not seriously intervened, we are not obligated to enact laws according to it; rather, we can set policies that lead us to the intent of the sharia or engage in promotional and cultural activities.
Of course, detecting these cases is very difficult; it requires a great deal of jurisprudential knowledge and precise subject identification.
Contemporary Jurisprudence: What are the challenges and harms of the involvement of jurisprudential knowledge in the realm of legislation in cyberspace? What should be done to escape these challenges and harms?
Kahvand: The most important challenge in the jurisprudence of cyberspace is the issue of subject identification. The reality is that for legislation in the realm of cyberspace, I do not recognize any challenge more important than the absence of precise and correct subject identification. We have numerous accomplished, knowledgeable, and skilled jurists in the field of jurisprudence, but this does not mean they are familiar with the subject matter. The solution to this issue is also to design a system for subject identification that is both situation-assessing and forward-looking, seeing all dimensions and layers of cyberspace, and accessible to jurists.