Note: The first specialized seminar “Jurisprudence of Cyberspace and Social Networks” was held virtually on 15 December 2020, with speeches by Hujjat al-Islam wal-Muslimeen Abdulhossein Khosropanah, Vice President of Humanities and Arts at Islamic Azad University and faculty member of the Research Institute of Culture and Islamic Thought; Jamshid Masoumi, faculty member of the Faculty of Theology at Islamic Azad University; Hassan Ali Moazzenzadegan, faculty member of the Faculty of Law and Political Sciences at Allameh Tabataba’i University; and two other professors. What you are reading is IQNA’s report of the speeches by Abdulhossein Khosropanah on “Jurisprudence of Cyberspace and the Wise Ijtihad Model,” Jamshid Masoumi on “Limits of Freedom of Expression in Cyberspace,” and Hassan Ali Moazzenzadegan on “Electronic Testimony from the Perspective of Penal Jurisprudence.”
Hujjat al-Islam Abdulhossein Khosropanah: The wise ijtihad model has three strategies. With the first type of ijtihad, the description of the ideal human is addressed; with the second type, the description of the realized human; and with the third type of ijtihad, changing the realized human to the ideal human is discussed. Since the term “human” is indicative, in this discussion, the instance becomes cyberspace. That is, cyberspace has a current state; describing cyberspace in its current state helps us recognize it as a subject, and then it is time for its jurisprudence, whether obligational or situational, to address it.
Why do we need an image of ideal cyberspace?
To describe the realized cyberspace, an image of ideal cyberspace is also necessary, because we want to say how the existing cyberspace reaches the ideal. The task of cyberspace jurisprudence is change and expressing dos and don’ts. Cyberspace jurisprudence can be considered from several angles; sometimes when we discuss cyberspace jurisprudence, we mean expressing the religious rulings on activities that take place within cyberspace; rulings such as bribery in cyberspace, virtual thefts, enjoining good and forbidding evil in cyberspace, or divorce in this space.
In truth, discussions that exist in the real world do not exist in cyberspace, and this is one type of perspective, and the jurist, based on the rules and evidence available, can express discussions related to worship, transactions, policies, judicial rulings, etc., in cyberspace. This is one type of discussion in cyberspace jurisprudence, and numerous articles have also been written in this field.
A Governance Perspective on Cyberspace Jurisprudence
But sometimes we want to address this jurisprudence on a larger scale; that is, to have a governance perspective on cyberspace jurisprudence and enter the issue in terms of governance in cyberspace. That is, to see what our governance jurisprudence is in cyberspace. This is done with the third type of ijtihad, because in this ijtihad, we have explained that three operations take place: one is expressing strategic rulings, two expressing behavioral rulings, and three expressing structural rulings. In virtual governance jurisprudence, the behavioral, strategic, and structural rulings of cyberspace must be expressed.
Before discovering these rulings through evidence, the issue is that we must understand cyberspace, and recognizing cyberspace is done with the second type of ijtihad. The governance jurisprudence of cyberspace, which expresses behavioral, strategic, and structural rulings, is also done with the third type of ijtihad, but describing cyberspace as it is now is done with the second type of ijtihad. We must also have an ideal cyberspace, so that when we want governance jurisprudence to have the ideal space, we know what it is, which is done with the first type of ijtihad.
Each of these strategies has its own methodology; for example, in the methodology of the first type of ijtihad strategy, we speak of a method called the network interpretation method. In this interpretation method, a governance system is obtained from the Quran and hadiths. In the Quran, we have words like “hukm,” which establishes a connection between hukm, prophethood, and the book. This hukm has a connection with the book and a connection with prophethood, and this hukm connects with comprehensive rulings, which include individual and social, expressing divine limits, placed in two contexts: taghut and wilayah. In wilayah, obedience to God, the Messenger, and those in authority is raised, and in taghut, obedience to other than God is raised.
The network interpretation method in the first type of ijtihad expresses an ideal governance, and when we want to mention the dos and don’ts of cyberspace so that cyberspace changes from the current state to the ideal, it must be measured based on the network obtained from governance in the Quran in the first type of ijtihad. But if we want to recognize cyberspace in the current state, it is recognizable in strategy with the systemic method. There are three dominant paradigms in describing the current state: explanatory, interpretive, and critical. In the explanatory paradigm, they examine the causes and factors governing the realized human, but in the interpretive paradigm, they study the motivations and internal causes and factors of humans to interpret meaning. In the explanatory, causation is done, and in interpretation, meaning interpretation is done.
We say the realized phenomenon must be recognized with the systemic method. That is, we should not see it one-dimensionally and only see the achievements of cyberspace and also see its foundations. We must also observe its internal components, and if the system and system that forms this space is seen, we can reach a comprehensive recognition with the systemic method. In this case, if we want to recognize cyberspace, today we face four categories of modern sciences: cognitive sciences, nanotechnology, biotechnology, and information and communications. These information and communication sciences are formed based on an ontological, anthropological, and epistemological foundation.
In practice, what is available to people today is provided through social networks, where 60 percent of people aged twelve and above in the world are members of one of the social networks, and these networks and cyberspace provide free access, have high speed, and high participation, and even eliminate something called privacy, and have no restrictions relative to the civil laws of nation-states. Of course, it has positive and negative achievements; for example, it has facilitated life affairs, but it also has negative effects, including the spread of false news, etc.
The Systemic Method and Comprehensive Recognition of Cyberspace
If we use this systemic method, we obtain a comprehensive systemic recognition of cyberspace, identify its components, foundations, and achievements, and when the jurist gains a comprehensive recognition of the existing cyberspace and obtains an image of ideal governance, he says how cyberspace governance jurisprudence is achieved.
This is where I believe a series of jurisprudential rules must be used to obtain cyberspace governance jurisprudence, in the domains of strategic, behavioral, and structural rulings. In this sense, I say a native and wise cyberspace must be built, and this is possible. I consider it a wrong statement to say that social networks are this way, and we face this reality, and we must also operate, just as the enemy operates, and there is no choice but this. Today, governance is a principle that flows in the cyberspace and social networks of the world.
Hujjat al-Islam Jamshid Masoumi: My doctoral dissertation was on censorship, where the government can intervene and create restrictions and not allow the publication of some books, articles, or newspapers. In this regard, we also prepared a book titled Freedom of Expression and Its Foundations, and for a while, our mind was engaged with freedom of expression, and we wanted to obtain a clear image of the discussion of freedom of expression and its foundations and reach restrictions in the dissertation; that is, where we can create disruption and prevent this expression from reaching others.
Freedom and Its Difficult Definition
The first point is that the issue of freedom is one of the complex epistemological issues that philosophers, psychologists, ethicists, usulis, and theologians have failed to solve. According to Martyr Motahhari, this is one of the difficult topics with strange complexities. When we refer to foreign thinkers, they are also divided into two groups; one group says defining freedom is impossible and it is not a concrete thing to interpret. It may be understood, but everyone understands it from their own perspective.
Those who have said defining freedom is possible are also divided into two groups; some have defined freedom absolutely, meaning without any condition. For example, they have said freedom is the absence of prohibition and prevention, or they have said freedom is the absence of obstacles in the path of realizing human desires. But some have defined freedom conditionally, meaning they have brought a condition for it, which is noteworthy. For example, they have said freedom is obedience to reason and respect for the law. Our imagination is that freedom means being unbound and the absence of obstacles in the path of human desires, but these, realizing that if freedom is defined this way, it leads to licentiousness and creates many problems and negates itself, defined it with a condition. If freedom is defined absolutely, it negates itself, and for this reason, it is a complex discussion.
Restriction Is Inherent in Freedom
If I say I am free and do whatever I want, and others behave this way, we face problems; that is, whatever we want to do, we enter the privacy of others; hence, absolute freedom inherently blocks freedom and hinders each other’s performance; therefore, freedom must have boundaries, and saying the limits of freedom should not offend anyone. These restrictions are inherent in the definition of freedom, and freedom without limits and conditions is not freedom at all and negates itself and leads to a kind of licentiousness.
Some consider submission and surrender of individuals to a law and divine Sharia as freedom. That is, you choose a Sharia and submit, and this is freedom; because they have thought that if a law does not govern a society, the first victim of that lawlessness and unbound society is freedom itself. To preserve freedom, it must enter a law, system, and Sharia that defines limits to preserve freedom. Some also have a clearer definition: every human can pursue their own interest in the desired manner, which is freedom, provided that it does not harm the interests of others.
We have other definitions. For example, Spinoza says the free person is one who lives only according to reason, and reason must clarify templates and boundaries for human behaviors, or Kant says independence in anything except the moral law is freedom, and if this law is not accepted, freedom is not freedom. Martyr Motahhari says freedom comes from nature. Humans have capacities that are in the process of growth. When these capacities are defined in the system of the universe and God has placed these capacities in the system of creation, you can realize where obstacles should not be created. Humans are full of feelings; hence, Martyr Motahhari says no obstacle should be placed in the path of human growth, and this is the meaning of freedom.
Reasons for the Importance of Freedom of Expression
Among these freedoms, we have freedom of expression, which is a subcategory of public freedoms and says anyone can express their thoughts, and no one prevents them from doing so, which is freedom of expression. If we give all humans this permission to express their feelings, for example, if they have hatred, to manifest it, nothing will remain stable; hence, one of the very sensitive freedoms is freedom of expression, because we need freedom of expression for human education as well. Even in belief education of humans, we are severely in need of freedom of expression, and as Martyr Motahhari says, for example, there should be a chair for Marxism in the Faculty of Theology at the University of Tehran. We say why should it be this way? They say for the growth of our own beliefs, because when we are not faced with questions and doubts and see the space calm, we do not grow. Our professors have told us statements from the predecessors, and we also quote them, and many of these have no relation to society and are not responses to doubts, but if a space is created where various thoughts are raised, conditions change.
But the discussion of cyberspace and the limits of freedom of expression can be raised from angles; one is to have a value discussion and say that according to religious teachings, we have no right to enter people’s privacy. Cyberspace has been a very strange and influential space and has become pervasive, and if not managed, it will disrupt all our values uncontrollably, but if managed, it can help the growth of societies and messages are transmitted quickly. We can say in the future that these tools will be in the hands of the truth-seeking current of history.
Active Approach to Combating the Spread of Evil
So when we raise the value discussion, the limits of freedom of expression have three domains; one is the discussion of privacy, where we have a series of restrictions. One is public domain and societal security, and things that harm the entire society, and we have no right to transmit all our information. We have red lines that if crossed, create crisis. Another domain is the domain of religion. We can raise religion as part of the public domain, but due to sensitivities about religion, we must differentiate this domain.
Also in cyberspace, today we must discuss and see if we can create restrictions at all? The answer is negative. We cannot be very hopeful that we can have restrictions on expression in the field of practice. Here, instead of a passive position, we must have an active position. Others raise their thoughts, and we must also say our words and expand values and the known and limit the unknown; that is, by developing the known, eliminate ugliness.
Dr. Hassan Ali Moazzenzadegan: Testimony, whether electronic or not, is raised under the discussion of evidence of claim, whether criminal, civil, commercial, etc. However, the topic of testimony in criminal matters is of greater importance, because in criminal matters, collecting evidence and documents and such is not possible, and usually the crimes that must be proven in court are through the testimony or witness of witnesses that must be raised; therefore, witnesses are the eyes and ears of the justice system, and this topic must be well addressed in criminal and civil procedure.
Given this topic, in all our laws from before the revolution to today, the discussion of testimony in criminal matters has been one of the important topics. In this topic, due to the importance in criminal evidence, the legislator has expressed testimony discussions both in the Islamic Penal Code and in articles of the Criminal Procedure Code. First, I must provide a definition of testimony that is raised in law and jurisprudence and refer to witness testimony, then refer to electronic testimony and its place in our laws and jurisprudence, which is the locus of discussion.
What Is Testimony and Its Conditions?
Testimony, in the meaning raised in jurisprudential books and stated in the Islamic Penal Code, is informing by a person other than the parties to the dispute about the occurrence or non-occurrence of a crime before the judicial authority. Of course, since our discussion is criminal, we raise this condition of occurrence or non-occurrence of crime. This definition is taken from custom and is also accepted by the Lawgiver, that testimony is informing about an event that has occurred, which in our discussion is a crime, and one person testifies and presents their information before the judicial authority. Witness testimony also has conditions, some of which relate to the witness and some to the content of the testimony. The legislator, using jurisprudential texts in Article 177 of the Procedure, has discussed witness testimony and referred to justice, reason, faith (being Shiite), maturity, purity of birth, not having interest in the dispute, not having enmity, not being engaged in begging, and not being a vagrant as conditions, but three important conditions are maturity, reason, and justice that must be verified, and regarding purity of birth, the principle is legitimate birth.
But testimony is valid if it has conditions. The witness who testifies must have certainty and conviction, which jurists do not mean 100 percent certainty, and technically, assurance is sufficient, which is also called ordinary knowledge, and this is correct because we may not achieve 100 percent certainty about any topic. Of course, its validity is contingent on not being contrary to the valid knowledge of the judge, because famous jurists have accepted the judge’s knowledge as the most important evidence of proving the claim, and its validity is established.
So one of these conditions is the certainty, conviction, and ordinary knowledge of the witness, and in Article 183, the legislator has pointed to this that testimony must be based on certainty and conviction in such a way that it is based on sensory and conventional matters. Regarding sensory matters, meaning seeing and hearing, we must also say that it is taken from hadiths, but here jurists differ, and some say through rumor or non-presential knowledge, seeing or hearing is also valid, and the judge must gain assurance. Also, testimony must be verbal or written. In the law, it is also stated that it must be without ambiguity and clear.
In some crimes, multiplicity of witnesses is also necessary; for example, in adultery, four just witnesses must be present, and the content of these witnesses’ testimony must be the same and have no discrepancy in testimony. Another condition that our jurists have stated and the law has also stipulated is the presence of the witness before the judge, and in the definition, it was also stated that testimony is informing before the judge. This is a discussion that is debated in electronic testimony, and first, the law must be explained, then we reach the jurists’ discussions.
What Does Article 186 Say About Testimony?
Article 186 is about the discussion of presence, which is one of the conditions of testimony, and the witness must present their testimony before the judge. The meaning of presence that we have understood and seen so far is physical presence. But sometimes we have problems for physical presence, and the witness has an excuse and cannot have physical presence. For example, they are traveling, sick, or there are problems that make presence impossible, which is the locus of discussion here as to what should be done. Especially if the topic is urgent and the judge must decide urgently to complete the evidence.
The legislator has divided testimony into non-physical and physical. Physical is what has existed from the past, and what is in the words of early jurists, such as Sheikh Tusi, Shahid Awwal in Lum‘ah, etc., is this type of testimony. Even later jurists who have written and have books, such as Tahrir al-Wasilah by the late Imam, their discussion is physical presence, and none have raised non-physical presence. The Iranian legislator, based on a series of developments in our time and needs that have arisen, has divided testimony into electronic and non-electronic and in Article 186 of the law points to this that if the witness’s presence is excused, the testimony in written form, live audio-visual or recorded, with verification of conditions and correctness of attribution, is valid.
This is a new discussion that we hear testimony electronically and have it audio-visually or recorded visually; that is, sometimes the witness has both image and voice broadcast, which is live audio-visual. The legislator has foreseen this in Article 186. Of course, considering the conditions of the witness and the content of the testimony that was explained.
What Are the Criteria for Excuse in Testimony?
To understand what excuse is and what criterion and meaning it has, the legislator has raised these criteria in Article 214 of the Islamic Penal Code. Including that whenever there is fear of danger to life or reputation or financial harm to the witness or informant or their families, but hearing their statements is necessary, the investigator, to protect the witness and informant, takes the following measures; lack of physical confrontation between the witness and informant with the complainant and accused. What relates to our discussion is hearing the statements of the witness or informant outside the prosecution or court with remote communication means, and its example can be the COVID-19 disease and the need for social distancing.
From a jurisprudential perspective, what is the criterion is presence, which can be physical or online and real-time. Of course, provided that the conditions of witnesses and testimony exist. Presence in jurists’ discussion is customary and not a presence that the Lawgiver has defined as physical presence before the judge, but electronic presence can also be fully considered and accepted by the Lawgiver. We can place this category in the vacuum area and say it is among the permissible and does not contradict the standards, and in times like COVID, it is among the necessities, and we can use it, and there is no obstacle to realizing electronic testimony.