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Michael Bohlander

Abstract

This paper will argue that data collection and (ab-)use these days are endemic and occur in a widespread and systematic manner and more often than not based on the policy of governments or – increasingly – of big multinational it companies and networks such as Google, Facebook etc. It will posit that they affect mainly civilians on a grand scale, whether for discriminatory reasons or simply indiscriminately, and have the potential for seriously violating some fundamental human rights, namely the rights to privacy and as a knock-on effect, the rights to freedom of speech and freedom of belief. The practice of such wholesale data gathering has thus all the hallmarks for being a contender to a new category of crime against humanity (cah). Traditionally, cah and other international crimes have been focussing either on, firstly, distinct violations of certain rules applicable to the conduct of armed hostilities, or, secondly, on physical or mental harm or damage, i.e. violations of the body, the mind or of property in the wider sense, as the basis for criminal liability, even if the means used to bring about such consequences are situated in cyber space, i.e. through cyber warfare. Most often, those two categories overlap to a large extent but not necessarily, since some of the rules of warfare are intended to provide for a degree of control over the conduct of military actions purely in the interest of allowing for the chance of a resumption of peaceful relations between the parties after a conflict has ended, and hence of maintaining a minimum standard of humane conditions during such conflicts, if that can be said to be a realistic option at all. The protection of the symbols of the Red Cross and Red Crescent is one example. However, with the rapid development of information technology and its virtually unchecked use for unilateral or multilateral intelligence gathering purposes by many governments and major corporations, a new victim may finally have appeared on the scene, namely the above-mentioned bundle of fundamental political rights, the free exercise of which is a non-negotiable and crucial component of the democratic process. In other words, the violation of these rights may no longer be a mere tool in order to violate the traditional target rights related to physical and mental well-being, but represent a violation of a distinct new target right in and of itself.

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Michael Bohlander

The conversation between Islamic and secular scholars of law has been going on for a long time. Publications in European languages are flooding the market on almost any conceivable topic related to Islam. Yet, there is still little evidence of a proper dialogue, but merely of an exchange of monologues. Both sides are wary of engaging in open-ended discussion. For the Muslims, the divine origins of their religion, and consequently their attitude to the foundations of law-making, would seem non-negotiable; any addition based on secular thinking is likely to be viewed as forbidden innovation and watering-down of Islam and, in extreme cases, as an attack on the very identity of Islam. The secularists will consider some core Muslim teachings as being in breach of the fundamental freedoms for which people in the ‘West’ have fought for generations and with great sacrifice. This article advocates the use of the maqāṣid al-shari‛ah as a tool for advancing the debate.

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Of Higher Intentions and Lower Expectations

A Report about a Failed Survey Project on Using Maqāṣid Al-Shari’ah as a Means of Comparative Governance Research

Michael Bohlander

The author had planned to work on a monograph related to the potential of using the maqāṣid in Islamic jurisprudence, uncoupled from their religious foundations, as a tool for the conversation with secular law and legal thinking, which by and large has shed its own religious roots and proceeded to an ethics-driven approach based on public policy or interest, and/or systemic logical coherence. The premise of the research project was that lawyers largely think the same thoughts and that they use different building blocks to construct rather similar-looking houses. The main instrument of the research was a survey questionnaire with a series of case-based scenarios sent to a number of Islamic scholars to provide the answers to the scenarios from the Shari’ah perspective. The survey failed in its entirety, so the research turned into an attempt to find the reasons for the failure. This paper will set out reflections on why it went wrong.

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Michael Bohlander