Modern scholars regularly assert that Islamic law contains privacy protections similar to those of the FourthAmendment to the U.S. Constitution. Two Quranic verses in particular - one that commands Muslims not to enter homes without permission, and one that commands them not to 'spy' - are held up, along with reports from the Traditions (Sunna) that repeat and embellish on these commands, as establishing rules that forbid warrantless searches and seizures by state actors and require the exclusion of evidence obtained in violation of these rules. This Article tests these assertions by: (1) presenting rules and doctrines Muslim jurists of premodern and modern times have articulated on the basis of the pertinent texts; (2) discussing the evidence, or the lack thereof, in the historical record that such rules operated in criminal practice in the premodern Arab-Ottoman Muslim world; and (3) comparing the apparent theories and policies of Islam’s pertinent provisions with those of the Fourth Amendment. The Article concludes that authority for Fourth-Amendment-like protections certainly exists in Islamic law, but assertions that such protections do so exist, or have ever been routinely practiced before the modern period, are unsupported by the doctrinal and historical records. There is, in the end, no obstacle to articulating search and seizure protections in Islamic law that meet modern notions of criminal due process; in this is the possibility of common ground between those who seek a greater role for Islamic law in today’s Muslim world and those who seek a lesser one.
Georgetown Journal of International Law, Vol. 40, Issue 3 (2009), pp. 703-806