Document Type : Original Research Paper

Authors

• Atieh Moghadamfar ¹
• Maryam seifmar ²

¹ Assistant Professor, Islamic Jurisprudence and Law, Faculty of refah, Tehran, Iran.

² Master's degree, Department of Jurisprudence and Islamic Law. Faculty of refah. , Tehran, Iran.

Abstract

Expanded Abstract

BACKGROUND AND OBJECTIVES: The rapid expansion of cyberspace has given rise to unprecedented digital threats that fundamentally challenge traditional civil liability frameworks rooted in tangible interactions. Incidents such as large-scale data breaches, destructive ransomware attacks, and sophisticated cyber intrusions have become pervasive, with some causing losses of hundreds of millions of dollars, underscoring the urgent need to redefine liability and compensation in the digital age. While existing research has explored cyber law, insurance, and liability separately, a critical gap remains: the absence of a systematic analysis of how the Imamiyyah jurisprudential system, specifically its doctrine of “Causes of Liability” (Mawājib al-Ḍamān), can form an indigenous foundation for civil liability and cyber insurance. This study aims to fill this gap by proposing a jurisprudentially-grounded model for a “New Civil Liability” in cyberspace, examining the extent to which Mawājib al-Ḍamān rules provide the necessary Sharia-compliant basis for determining liability and compensation for cyber harms, and how they can be integrated with cyber insurance.


METHODS:
This research employs a descriptive-analytical and comparative approach, systematically interpreting the foundational principles of Imamiyyah liability rules Itlāf (direct causation of loss), Tasabbub (indirect causation through negligence), Ḍamān al-Yad (liability through unauthorized possession), Ghurūr (deception), and Lā Ḍarar (prohibition of harm) and applying them to contemporary cyber incidents and insurance mechanisms. Data collection was carried out through extensive library research encompassing primary Imamiyyah jurisprudential sources spanning a study period from 1600 to 2025, from foundational 17th-century works to the most recent scholarly contributions in 2025. The analytical procedure proceeded through four interconnected stages employing deductive reasoning and systematic content analysis: first, jurisprudential analysis establishing the property status (māliyyah) of digital assets as a precondition for liability and insurance; second, identification and classification of major cyber threats and assessment of their insurability; third, direct application of each of the five core rules of Mawājib al-Ḍamān to concrete cyber harm scenarios; and fourth, jurisprudential analysis of cyber insurance grounded in the theories of naql al-dhimma (transfer of obligation) and Ḍamān al-Yad

FINDINGS: The study yields four principal findings demonstrating the inherent adaptability of Imamiyyah jurisprudence. First, digital assets including software, databases, and electronic records satisfy the flexible jurisprudential criterion of māliyyah (property qualification) due to their demonstrable economic value, market exchangeability, and rational desirability, rendering them valid subjects for insurance contracts and liability rules. Second, core liability rules are directly applicable to cyber harms: Itlāf covers data destruction and deprivation of access, as in ransomware encryption; Tasabbub addresses negligence in cybersecurity, holding service providers liable when their omissions enable attacks; Ḍamān al-Yad governs unauthorized access, copying, or dissemination of data as wrongful dominion over another's property; and Ghurūr provides a two-sided foundation for utmost good faith in cyber insurance, obligating full disclosure by the insured and prohibiting misleading representations by the insurer. Third, the overarching principle of Lā Ḍarar furnishes a broad basis for liability extending beyond material losses to immaterial harms including privacy violations, reputational injury, and disruption of critical services. Fourth, cyber insurance is reconceptualized as an institutionalized mechanism of naql al-dhimma, operationalizing the jurisprudential duty to compensate loss and providing solid Sharia-based legitimacy for cyber insurance as permissible risk transfer.

CONCLUSION: This research articulates a coherent model for a “New Civil Liability” regime in cyberspace firmly rooted in Imamiyyah jurisprudence. It demonstrates that the classical system of Mawājib al-Ḍamān, through dynamic interpretation (ijtihād), offers a precise, flexible, and comprehensive framework for attributing responsibility and ensuring compensation in the digital realm. The model provides three interrelated contributions: a vital indigenous doctrinal basis for legislators drafting cyber liability laws; a reasoned analytical tool for the judiciary in adjudicating cyber disputes; and a practical template for designing Sharia-compliant cyber insurance products. By establishing this jurisprudential foundation, the research contributes to national cyber risk management strategies and facilitates the emergence of a legitimate, efficient, and equitable cyber insurance market in Iran. The findings underscore the enduring relevance and adaptive capacity of Imamiyyah legal heritage in addressing the most pressing challenges of the digital era, bridging the gap between classical Islamic legal scholarship and contemporary governance needs. This research constitutes a foundational and necessary step intended to catalyse further studies employing Islamic jurisprudence in the formation of just and effective legal systems that are capable of responding to emerging technological developments.

Keywords

• Causes of Liability (Mawājib al-Ḍamān)
• New Civil Liability
• Cyber Insurance
• Cyberspace
• Imamiyyah Jurisprudence

Main Subjects

• Insurance rights