Some Hermeneutical Reflections on Interactions of Islamic Sharia^[i] and Cyberspace in Iran
By Dr Hassan Rezaei

From the moment the Ottoman Empire, the last Muslim Empire, adopted the Mecelle-i Ahkam-ý Adliye[ii] under the influence of the Code Napoleon of 1807 until now, Islamic Sharia has addressed principles, concepts and institutions of modern law, particularly human rights, without any open, inclusive or trustful reconciliation. A history of conflicting legal dualism among Muslim countries starts with the Majallah, which are on the one hand attached to traditional perceptions of Sharia and on the other forced to adopt modern model of codes of law. Despite a long period of encounter with the law of the modern world, considering the actual dilemmas of Sharia in most Muslim countries, one can still firmly claim that Sharia, particularly its criminal and family justice rulings, may be regarded as the harshest system of law facing modernity in comparison with other traditional legal systems throughout the world.

While the world community is deeply concerned about Islamic Sharia, especially after the events of 11 September disclosed its acute crisis, it seems that progressive Muslims within the Muslim world who witness the actual problems of established Sharia in their own communities are also losing their patience for Sharia to be transformed into a modern system of law based on human rights in the near future. What makes this transition more urgent is not the aftermath of New York events, but instead the last decade of the twentieth century and the aftermath of merging information in post-industrial societies with their postmodern philosophies and literature. The more the modern world enters the age of information and communication, the more Muslim societies find that the timely transition from the current Sharia is inevitable. Owing to rapid developments in information and communication technologies (ICT) and their prevalence across the world, many Muslim societies have access to these technologies, especially the World Wide Web. Along with this increase in the access of many Muslims to the Internet, calls have arisen for instant resolution of the dilemma of Sharia and modernity. Currently, many strong online voices from all over the world (including most of the western strategic studies centers) are calling for emergency, short-run transformation in Islamic Sharia.

As ICT technologies expand within the Muslim societies and the Internet in particular gains increasingly more validity among middle-class Muslims, we can see more reflection on the how the kernel of these societies (i.e., Islamic Sharia) is represented in Cyberspace, and about the impacts of the information society and its main component, the Internet, on the development of Sharia in the future. By considering the existing features of online Sharia with a Shia reading of it in the Iranian context, this article seeks to show that with the expansion of Cyberspace among the masses, people become conscious about the historicity of Sharia rulings, and that one can expect a revolution in Shia Islam through this public consciousness. Without depicting any utopian, emancipatory account of the information revolution, I want to argue that the “open” networks that are increasing rapidly among Iranians, when added to the historical discourses of rationalism and justice in Shia and the very young and well-educated majority of the Iranian population (40 millions under 30 years old), will create an historical openness in the closed space of existing understandings of Sharia.

Two main assumptions ground this argument.  First, a peaceful transition of Iranian society to an open, democratic one is only possible through a paradigm shift in Sharia. In other words, a sustainable, authentic democracy is not foreseeable in Iran without the advent of a rights-based legal system evoked from Sharia traditions. In order to avoid being labeled as a foreign or alien plan, this goal must be pursued by means of a serious criticism from inside Muslim society. As Iran’s century-long experience shows, modernist or secular discourses that see no role for Sharia discourse in the public sphere of Muslim societies cannot further the institutionalization of democracy and tolerance in societies with such strong roots in tradition. Secondly, there is currently an understanding of Islamic Sharia developed by various social, non-violent members of Iranian society, in particular women and youth, which can pave the way for the peaceful advent of a right-based legal system which is compatible with the emerging postmodern information society.

When all Sharia judgments become available online, then the free flow of information and knowledge will electronically deconstruct existing Sharia-subjectivism whether the autocratic, hard-line clerics like it or not. The mechanism for this deconstructive process, for which Iranians made three revolutions during the last century, is the emergence of a cyber, democratic public sphere in which a paradigm shift in assumptions and preconceptions of classical power-based Sharia will take place. This time the Internet revolution will be matched by a revolution in Islamic Sharia because a soft, open and transparent Cyberspace will break the hegemony of Sharia institutions and their hard rules over individuals. The new Sharia that will show itself primarily in Cyberspace and which feeds from it will be a system of rights, including the rights of both human beings and nature; its discourse is not power, but freedom.

The Iranian Internet, through alliance building and community networking,[iii] not only develops ways to foster individual enlightenment, but only facilitates ways to develop a higher social awareness. In the young Iranian cyberspace we can easily hear the voices of future, the aspirations of a new generation born after the revolution to live in an open, free and happy society and to enjoy their God-given rights. Interestingly, these voices are largely stressing nonviolence. The more Iranian cyberspace grows, the more Sharia discourse becomes public and intersubjective and reaches out to the broader world. The emergent Iranian right-based readings of Sharia in cyberspace contain new promises and aspirations, not only for the Iranian people, but also for the entire Muslim world and even for the world community.

In conclusion, the absence of power, in a Foucaultian sense, is necessary for a new paradigm of Sharia to be. In other words, the context of the Being of the new Sharia is an interactive, dialogic and intersubjective one which evolves constantly. It is freed from any discourse of power. Hence, it is inevitably through the discourse of freedom that Sharia justice will be legitimated, renewed, universalized and, of course, resonated to the only Self there is in the entire universe.  It will do this by transcending the letter of the canonical scriptures and the ego of fundamentalists. This Sharia is secular (not secularist) because it is rooted in Being that does not suffer a dualism of matter and spirit.[iv] It is revealed. It is always present and open towards the future because it crosses in time and space. It is in our nearness and comprehensibility because it is in dialogue with us; here, hierarchy has no place. It discloses itself constantly. We do not need to make it. It is simply in-the-world-with-us. It is our Existential. It discloses itself in our Sites. We are all in the Site of its disclosedness.

To give a schema of this paradigm shift in Sharia discourse, in the following table I compare some significant preconceptions of the two paradigms as they relate to criminal justice.