“Jurisprudence of Cyberspace” Is Different from “Jurisprudence of Issues in Cyberspace”!

Note: Hujjat al-Islam wal-Muslimeen Ali Nahavandi has been teaching and researching media jurisprudence and cyberspace for more than two decades. In this conversation, he expresses the necessities of cyberspace jurisprudence and its position among jurisprudential chapters.

Please state your analysis about cyberspace.

Nahavandi: I will present a few points to you. If we want to analyze the topic of cyberspace, we must certainly have precise and deep analyses overseeing the nature of cyberspace. The world that is based on humanistic and materialistic thoughts and the modern civilization that has brought us secular thought has placed technology as an intermediary between human and the world. This civilization seeks to create a teleological technology; meaning to make the human worldview such that his goal is to reach the media world and virtual world; meaning movement from a real world toward a virtual world. This work has various reasons, some of which I may present here.

One of the important questions is why modern civilization gives importance to technology and technical movements as an intermediary between human and the world to move human toward a new world called cyberspace. Of course, the best expression from a sociological dimension is “virtual world.”

What is meant by jurisprudence of cyberspace?

Nahavandi: Naturally, when we talk about jurisprudence of cyberspace, we have three important words: jurisprudence, space, and virtual. In truth, cyberspace is a different type of virtual reality. When we talk about cyber space, it brings with it concepts of cyber citizen, cyber money, cyber culture, cyber commerce, and cyber marriages and many lifestyles and life processes.

Cyberspace or in other words virtual space is a combination of two separate concepts. Cyber has Greek roots and means control. Cybernetic is a concept meaning a control system of super technologies; control of super technologies that are based on web flow or computer and digital technology capable of guidance, control, and measurement; therefore, when we talk about cyber or this virtual space, it brings virtual world, movement toward citizen, money, culture, and virtual commerce. We must know that this word is a human organism; meaning a bond between nature, society, and technology or in other words, it establishes a bond between the world and human and technology. Based on this, cyberspace or cyber has contradiction and inconsistency with real space.

Cyberspace creates a world before us that is not merely conventional, but a world that intends to inject and dictate to us an environment constructed from invisible information (information that can take various forms); therefore, we must have a correct image of cyberspace and its components, which are based on web technology, and know where choosing this term and word leads.

One part of the phrase virtual space is the word virtual, which does not necessarily mean conventionality. Virtual is a realm that creates new opportunities and capacities and opens the paradigm of dual-worlding before us. Modern world has considered a goal for human which is the movement of human toward media and virtual world. This world’s application and function differs from the real or true world in which we live in terms of indicators, scales, and actions. We must know these and not escape from them. These are creations of a computer world. The foundation of this world is a computer world; meaning the emergence of this virtual space has roots in communication technologies. I emphasize that when we talk about virtual space, the meaning of virtuality is in truth non-physical presence.

The second concept that appears in the word virtual space is the concept of space. This concept finds meaning in comparison with the concept of place. Space in comparison with place is an abstract concept; meaning imagining it is difficult; because usually we cannot imagine something without understanding place and usually imagine beings physically. In truth, space indicates omnipresence. Place is a specific somewhere, but space gives us an image that sets aside the concept of specific place and is in a way a void. Place is two-dimensional, but when we talk about space, we follow a three-dimensional concept. Place has borders and is limitable, but space apparently is an unlimited and infinite concept. In space, there is also a release and fluidity.

With these definitions of virtual space, we are in truth discussing a technology and technique that wants to bring human closer to another space through a new technical and technology-oriented communication space. This bringing closer and this sharing is nowadays known under the title of communications.

What theories exist about communications?

Nahavandi: Extensive theories about communications have been expressed; for example, James Carey and John Fiske follow two major approaches and schools in the field of communications; American and European. In American thought, the process of message transfer is in geographical and spatial dimension; meaning in the intellectual world of Americans, when they want to define communications and depict the process of transfer and exchange of message for us, spatial dimension and transportation dimension are important to them. Based on this, they believe the distance between the message production source and the message receiver must be shortened, and for this reason, new technologies in the field of communications that shorten mechanical communication are welcomed by them; therefore, there is advanced thought in this regard that usually has roots in thoughts that follow the telecommunication dimension of this matter. The second approach is European thoughts that seek to shorten the transfer time.

When we talk about virtual space, we must know what identity and nature we are facing. We are facing a great transformation whose scope and depth are very extensive. We must be able to examine various dimensions of the obligated and duties and rulings and topics related to him in this world and new space based on this thought.

When we talk about virtual space, in truth we pay attention to the thought of modern civilization that wants to intermediate through deep technologies and establish connection. Virtual space wants to conquer the thought of today’s human based on secular thoughts and with the hegemony of media flow and perform penetration, persuasion, and convincing at the highest level. This is the first point that when we talk about virtual space, we must know what identity and nature we are facing. We are facing a great transformation whose scope and depth are very extensive. We must be able to examine various dimensions of the obligated and duties and rulings and topics related to him in this world and new space based on this thought.

Jurisprudence of cyberspace falls under jurisprudence of communications. Communications is that approach which is nowadays called jurisprudence of connection. This jurisprudence of connection is in truth that super project that today’s modern society pursues and with communication tools and platforms like media and virtual space wants to bring the two ends of message sender and message receiver closer and closer. Media jurisprudence is also called jurisprudence of announcement. Jurisprudence of announcement and jurisprudence of cyberspace which is a communication platform and technology fall under jurisprudence of interaction and jurisprudence of connection which is called jurisprudence of communications.

Virtual space does not have a geographical and physical position or specific territorial boundary, despite this, we do not consider virtual space a conventional matter; it is a prominent reality in the modern and contemporary world that human actors interact with it and advance informational transactions from this system and flow. In truth, this world parallel to the real world has created a social action and new scales that we must proceed in accordance with this reality. This relatively non-physical space has its own specific functions in economic and security and social domains and has placed new realities before us that we must face them.

The third word is “jurisprudence.” Jurisprudence is discovery of the ruling which is the religious credit attached to the acts of the obligated. Acts of worshippers in micro scale is the same that is generally raised in discussions of virtual issues; like transactions in virtual space, bitcoin, virtual money, gambling and dissemination in virtual space and privacy in virtual space. In the book Media and Communications Jurisprudence, I have addressed many of these discussions precisely.

Virtual space has created depth and scope and has struck a great technological transformation in the human biosphere. This importance is clearly seen in the coronavirus affair. Our second scale is a macro scale; meaning in the ruling that we pursue in this macro scale. We target the credit issued by the legislator for regulating human life and want this level, which differs from common jurisprudence, to be clarified. Common jurisprudence analyzes the topic based on primary titles and considers examining the external reality of the topic outside the scope of jurisprudential apparatus activity and often refers limiting the topic — in non-religious topics — to common custom; but in macro jurisprudence and in macro scale and jurisprudence that has a specialized domain — like jurisprudence of cyberspace — we must initially access a network of issues and analyze and examine it with other systems like social, economic, security, and political systems and precise topic recognition occurs. In the initial section, I spoke more about the topic and nature and identity of virtual space so that we know we cannot approach this phenomenon like other phenomena from the micro scale dimension; therefore, this level, the scale level that I mentioned, is an important scale.

Our entry into jurisprudence of cyberspace is analyzable and examinable both in micro scale and macro scale. Macro scale is very important for us and paying attention to discovering the ruling is very crucial from this dimension that in this scale the method and inference method evolves to reach correct and precise results. Jurisprudence is the knowledge of inference and discovery of divine instructions for life and the highest law for human life throughout history that we must analyze in two micro and macro scales.

In jurisprudence of cyberspace, is there a difference between jurisprudence of issues in cyberspace and jurisprudence of cyberspace?

Nahavandi: An important point is that usually a mistake occurs in jurisprudence of cyberspace. Based on this, we must distinguish between jurisprudence of issues in cyberspace and jurisprudence of cyberspace. Jurisprudence in issues of cyberspace means issues that have occurred in cyberspace like privacy in cyberspace, but jurisprudence of cyberspace is like jurisprudence in media or media jurisprudence. This same view causes separations and differences to emerge. It is here that the difference in steps we take for extracting jurisprudence of cyberspace and with common jurisprudence becomes clear.

Jurisprudence in cyberspace means examining issues that are obtained for us in cyberspace; like written and documented lying or dissemination of obscenity and gambling in cyberspace. These are issues in cyberspace that can be in any platform; for example, the issue of dissemination of obscenity in satellites or any other platform may occur. But when we talk about jurisprudence of cyberspace, it is macro scale; meaning there we basically do not discuss the details of that topic. Jurisprudence of cyberspace can be examined from two perspectives; one issues that are in cyberspace; like internet marriage, khums rulings, downloading obscene films, and ruling of computer games. I have brought many issues of this kind in the book System of Issues in Art and Media Jurisprudence in which I have also addressed cyberspace. Discussions like intellectual property and gambling issues and these things that in the view presented are micro jurisprudence and detailed jurisprudence and overseeing the same sciences and lessons we have studied. Perhaps we can extract the roots of this discussion in many books in the domain of makasib and commerce. Our important discussion is jurisprudence of cyberspace.

One of the fundamental questions is that basically is the production and establishment and promotion of cyberspace technology permissible or not according to religious criteria? Basically what ruling do virtual networks and virtual spaces have or what are the religious duties of the sovereignty toward the era of cyberspace?

Nahavandi: Clarifying these relations from a jurisprudential perspective is a very serious and fundamental issue. The reason is that the topic of cyberspace itself is an interpretable topic. It is not such that it itself is an issue. The nature of cyberspace must be clarified and then we analyze cyberspace against issues that are placed before us from the duty dimension. It is better to explain the issue in an example so that topic recognition and inference method become clear.

For example, the issue of statue that existed in our industrial domains and past industries. For what purpose was statue-making done? Nowadays we speak of visual art, but in the past it was not like this and for example they used it for making idols. Nowadays when we talk about statue, perhaps we suffice with those generalities and general discussions — like that in the early period and early Islam there were references to it in narrations — and perform examinations from this perspective. For example, discuss in this way that if the wisdom and reason for prohibiting statue is resemblance to idol and idolatry, it is forbidden from this perspective or not and refer to absolutes and generalities and such discussions. But nowadays topics have emerged that apparently this issue analytically differs essentially from the topic that was in early Islam and we cannot easily use generalities and absolutes for jurisprudential opinion. Nowadays volumeless statues and sculptures are raised; those that are formed with light and water. Basically is this topic the same as the past period’s topic that we can use those generalities and absolutes and issue ruling? It seems not.

Another example is rulings about painting. Nowadays when we pay attention to caricature in which someone’s nose is drawn large but the face is the same face, can we consider this painting the same painting just because of those previous generalities or not. What we see nowadays and what is raised in today’s art and new media does not have the capability of topical application to pull the ruling from the past and apply it. On the other hand, we cannot say this topic is detectable for common custom. Common custom in many of these cannot detect and its detection is not the criterion. These are specialized and precise domains that the public cannot detect.

My meaning is that we cannot easily apply the same rulings that we have in misguided books to virtual space and implement them. The identity, nature, and essence of this space and technical phenomenon and technology and communication space must be analyzed topically so that if one day we enter the issue of electronic commerce, we know what this electronic commerce is essentially and naturally applicable to. For example, regarding bitcoin, many said although it does not have external reality, it is still a right and a privilege; meaning even though the money that wants to be placed as price for buying a thing does not have external reality, no problem is created because it is right and privilege. This claim must be analyzed. Is this right and privilege applicable to this electronic money and this virtual space or not and examine basically can you consider the capability of displacement and increase and decrease in this domain of property and this moneyness or not.

Detecting the topic and elements of this issue is a difficult task. When I spoke with some economic dear ones and analyzed this matter, the discussion became complicated. Apparently when we wanted to jurisprudentially understand this matter normally, the topic was considered simple and easy, but when the complexities of this space were analyzed and approximated to the mind, it was understood that it is not so easily presentable with religious ruling. As many of our scholars nowadays have not made clear statements in this regard, which indicates this same complexity.

What levels does cyberspace have from the perspective of those who deal with it?

Nahavandi: Cyberspace has three levels. One level is users; the same obligated and those who use cyberspace services. Here it has its own specific discussions and issues. One level is service providers; meaning the means of these services, like operators that provide internet services. These operators can easily enter all personal spaces and private realms. These service providers are one level of the duty domain. The third and higher level which is very important is the managerial and sovereign level of this arena. That cyberspace is in the hands of what system and collection and what legal relations and legal regulations it has. We cannot overlook this.

Some enter this matter and say it is a tool and services that we can use and for example advance enjoining good and forbidding evil in this space and use it correctly. Naturally, this space can have positive functions for us; but was the orientation of the designer of this technology toward proximity and growth-giving and the rite of accepting human and ethical and Islamic culture or not. This is an analysis outside jurisprudential discussions that is very growth-giving. Some believe correct uses can be made from cyberspace and web-based, so it is permissible for human to connect and attach to this space, I wrote in an article that incidentally this topic of virtual space and web-based spaces basically does not mean common tools that we say we can make correct use from knife and wrong use. If knife is in the hand of a surgeon, he exploits it to remove a cancerous tumor, and if in the hand of an infidel Zangi, he can eliminate a believer. Virtual space is not a common tool; because a common tool does not have independence to see under what personality and reality it is exploited. Virtual space basically does not have identity independence; meaning it is not placed in the hand of human and divine will and the duty of virtual space is not yet clear and has much room for attention. Giving absolute ruling to exploiting virtual space without considering harms and dangers it has is a mistake and this should not be overlooked. For this reason, in the sovereign dimension, we have a clear opinion and believe that sovereignty must clarify its relation with this space. When the national intranet section becomes active, a series of sovereign and governmental duties emerge and certainly it is among religious duties that a healthy space is placed at the disposal of service recipients of this space so that they can have their normal works and normal life in this bed. Then we can give a definitive ruling about this space.

Giving absolute ruling to exploiting virtual space without considering harms and dangers it has is a mistake and this should not be overlooked. For this reason, in the sovereign dimension, we have a clear opinion and believe that sovereignty must clarify its relation with this space.

Sometimes they say your view toward virtual space is based on power and expressions of initial jihad and defensive in this space indicate that you consider the nature of this space as a field of confrontation and fight. They say if you speak based on human dignity and freedom and know that in this approach a space is at everyone’s disposal that he can make the best uses from it. From our perspective, it is not like this and this nature and bed in the thought and ideology of secular world and modern civilization has been formed in a way that wants to intermediate between world and human. Just as when we talk about our own ideology, we design means of grace like angels and infallible imams, peace be upon them, between human and the truth of this world and God Blessed and Exalted. Secular and humanistic thought has replaced this, meaning it has replaced technology with connection between human and nature and human and world.

They encourage this worldview whose movement is toward virtual world so that they can inject their thoughts to others in the hegemony of various media and social networks. It is in these places that we consider separation and difference and cannot speak simply. Our thought in jurisprudence of cyberspace, media jurisprudence, and other specialized jurisprudences must have roots in that ideology and worldview that I mentioned so that we can reach a correct system and based on it present our principles and mentalities and exploit from it. In this section, we must reach a series of inference rules and principles that smooth jurisprudence of cyberspace for us so that evolution occurs in the methodology of jurisprudence of cyberspace and consequently we can use more from this domain. The way to reach this importance is returning to topic recognition of cyberspace domain which is a very very precise and deep work.

Overall and in a summary, I consider jurisprudence of cyberspace under jurisprudence of communications and think that in topic recognition of cyberspace, we must analyze with more precision and delicacy. If analyses are correct, our scale in jurisprudence of cyberspace becomes a macro scale and designs duties for sovereignty and government and pulls the duty level from the level of users and micro obligated to the level of service providers and intermediary institutions and higher level meaning sovereignty and government and larger spaces. We consider virtual space to have threat and opportunity; but in our opinion, this thought is raw that this space is based on human dignity and freedom. The nature and identity of virtual space in modern world is to reach virtual world and we cannot overlook this. This space is based on power.

We need more methods, approaches, and principled rules for inference and discovery of divine instructions in macro scale and what is at our disposal does not respond to needs. In this system, much work must be done. It comes to my mind that we need these: designing the network of issues in virtual space, extracting and inferring and discovering some applicable rules in jurisprudence of cyberspace and discovering some principles governing the root of jurisprudence in macro scale. For this work, we must specify the share of reason and purposes of sharia so that it reveals sharia taste and purposes of sharia for us more so that we do not move outside these governing principles and extract regulations from it.

Now there is a simple view in jurisprudence of cyberspace in which part of makasib discussions is used. We must not suffice and content with this. We certainly must dissect the elements of these matters more. Also, our jurisprudential apparatus must become completely and comprehensively familiar with communication infrastructures and existing technologies and their functions and theories. This familiarity must occur so that we can speak in the domain of communications jurisprudence — whose sub-branch is announcement and media and cyberspace jurisprudences. We must cross these highways and bridges so that we can reach correct understanding in extracting and inferring ruling; although the work is very difficult.

If we reach this result, we see that these phenomena and topics are multilayered and must be intertwined with various economic and social and security and international systems and create a matrix for us on whose basis we form a correct inference consisting of correct understanding and direction-giving of the legislator and attribute it to the legislator. This work requires serious attention and inspection.

We consider virtual space to have threat and opportunity; but in our opinion, this thought is raw that this space is based on human dignity and freedom. The nature and identity of virtual space in modern world is to reach virtual world and we cannot overlook this. This space is based on power.

Source: Rahnameh (Quarterly of the Research Deputy of Seminaries).

The advanced jurisprudence professor of media stated: