At the present time, freedom of expression represents a right that is cherished globally and an entitlement that is upheld by the Universal Declaration of Human Rights. With a view, mainly upheld in the West, of the Sharia as a legal system that restrains freedom of expression, the main purpose of this article is to explore and introduce the true position of the Sharia on freedom of expression in such a way that shows whether or not it has principles that may set the basis for the exercise of this right, and, if proved to have these principles, define the extent to which the Sharia allows/qualifies the scope of freedom of expression.
There is no precise or inclusive definition of freedom of expression. Some have attempted to define it as individuals' right to express what they have in mind regardless of whether or not this expression brings about legal effects. This definition has an unqualified scope, for it does not take into account the legal limits that should regulate freedom of expression, including the content, time, place and manner. According to another opinion, which takes into consideration the legal effects, freedom of expression means one's liberty to express thoughts, principles and beliefs in the manner one deems appropriate within the confines of law. In line with the previous definition, other jurists are of the opinion that freedom of expression is a set of principles that must not contradict other social values, in the sense that any kind of freedom is bound by the principle of avoidance harm or inconveniences to the others and non-violation of the public order and moralities.
Freedom of expression includes freedom of the press and the liberty to communicate ideas in all forms including books, pictures, signs and other means of communication, with the purpose being to inform, to persuade, to convince others, to reveal the truth or to eliminate doubt. Freedom of expression is also correlated to social freedoms, which include, inter alia, the formation of parties and civil society institutions, the freedom of the press and the media, whether in audio, visual, or digital forms, and the freedom to access the information needed for expression of opinion.
Western commentators have generally held that there is no recognition in Islam of the concept of right or liberty, including the right to freedom of expression that is inherent to the human self. Thus, according to Schacht, the Islamic law is a system of duties, consisting of ritual, legal and moral obligations, all of which are sanctioned by the authority of the same divine command. Hamilton Gibb also commented that the Islamic theory of Government gives the citizen as such no place or function except as a taxpayer and submissive subject."
The Sharia has principles that may be used as evidence in support of freedom of expression. These principles include Ḥisbah (commanding good and forbidding evil), Naṣi̅ḥah (sincere advice), Shu̅rah (consultation), Ijtihad (personal reasoning) and Ḥurryat Al-Mu‘a̅raḍah (freedom to criticize public officials), respectively. Based on these principles, it is found that the right to freedom of expression is well-established by the Sharia. However, these principles are not left loose or unregulated, but instead are bound by and dependent on certain regulations and limitations that guarantee non-departure from the intended objectives of freedom of expression under the Sharia.
The Sharia excludes certain forms of from the scope of freedom expression due to their offensive nature and inappropriate content. It is found that violations of speech under the Sharia are subsumed under two categories: the first category of violations of freedom of expression includes forms of expression that are merely morally condemned, i.e., they are not penalized by any specific legal penalty, and thus are not justiciable. These include lying, backbiting, tale-bearing, etc. In addition to these, there are other varieties of speech that are penalized as criminal offences. These include slanderous accusation (Qadhf), blasphemy, insult etc. It is concluded that the prohibition of the first category serves moral objectives represented in safeguarding the moral integrity of individuals, and is directed at the conscience of the believers who must abide by these enjoins. On the other hand, the prohibition of the second category serves the objective of the non-violation of people's rights as well as the preservation of social order.
All in all, it is concluded that the Sharia has a principles that guarantee freedom of expression within a regulated scope. Nonetheless, this relatively restricted scope serves better moral and social objectives, with a view of the preservation of individuals' dignity, maintenance of public order and avoidance of harm. In addition, the Sharia imposes obliging restrictions of moral import, such as the prohibition of lying, backbiting, tale-bearing, etc. that any statutory law would fail to enforce.