For several years, the question of the primary ruling for artistic acts has been a subject of inquiry among those interested in the jurisprudence of art. It could be argued that the first person to raise this issue among contemporary scholars was Ayatollah Alidoust. The academic secretary of the National Conferences on the Jurisprudence of Art, in 2015, formally declared the primary ruling for artistic acts to be desirability (istihbāb) and has repeatedly emphasized this view since then. His statement has elicited varied responses over the years. However, Hojjat al-Islam wal-Muslemin Mohammad Kazem Haqqani-Fazl, in his exclusive commentary for the electronic journal Prohibited Concepts in the Jurisprudence of Art, has explored this issue from a different perspective. The former deputy of education at the School of the Jurisprudence of Art has sought to answer whether an artistic act can inherently bear a primary principle. The full text of the commentary by the director of the Encyclopedia of Contemporary Jurisprudence is presented below:
Introduction
In a normative discipline such as jurisprudence, the ruling for any act or event is determined by examining the sources of derivation, primarily the Quran and Sunnah. However, in some cases, arguments and derivations lead to no definitive conclusion, compelling the jurist to resort to a primary principle for the act in question. Consequently, in numerous instances within books of jurisprudential principles, scholars establish the primary principle at the outset, so that if discussions fail to yield a satisfactory result, they can revert to this foundational principle.
In the realm of the jurisprudence of art, this process is unavoidable, and jurists are compelled to determine and clarify a primary principle for the jurisprudence of art. To this end, Ayatollah Abolqasem Alidoust, a pioneer in theorizing emerging fields of jurisprudence, particularly the jurisprudence of art, has explored the primary principle in the jurisprudence of art in his article “The Jurisprudence of Art in Two Perspectives: Comprehensive and Case-Specific Instances,” concluding that the primary ruling for artistic acts is desirability. His research focuses on cases traditionally addressed in Shia jurisprudence and examined by earlier jurists. Ayatollah Alidoust acknowledges that some arts are condemned, or even prohibited, in the narrations of the Ahl al-Bayt (peace be upon them) and Shia jurisprudence. However, he concludes that this prohibition stems not from the essence of artistic acts but from their association with elements that are religiously forbidden. Thus, without considering these associated elements, an artistic act, as the creation of a novel work relying on human creativity, is not only permissible but commendable and desirable. (See: Qabasāt Journal, Issue 78, Winter 2015, pp. 41-59.)
Analytical Foundation
Disciplines such as jurisprudence, ethics, and law study human behavior from a normative perspective. These sciences set boundaries for human actions and, by defining criteria, categorize human behavior into permissible and prohibited, allowed and forbidden, commendable and reprehensible, lawful and unlawful, deserving of punishment or worthy of praise, and so forth. The criteria and standards of these sciences are established in related fields such as jurisprudential principles (and broadly, the foundations of jurisprudence), philosophy of ethics, and philosophy of law. The question now is: what approach do these sciences take toward actions?
The most critical aspect of evaluating actions is attention to the concepts applied to an act or event. To clarify, a physical movement—such as drawing a knife across someone’s throat, taking something from another’s bag, or striking someone’s face—lacks the capacity to bear a religious, ethical, or legal ruling on its own. Rather, it is the concept applied to the act that provides the basis for a ruling. These concepts can be divided into primary, secondary, or higher-level concepts. For instance, while drawing a knife across someone’s throat may be called “killing,” killing itself does not inherently carry an ethical, jurisprudential, or legal ruling. Instead, higher-level concepts, such as “intentional killing of a person who does not deserve to be killed,” provide the basis for a ruling. This concept itself is a composite of several other concepts combined in a single act. Similarly, taking an item from someone’s bag can have various forms, only some of which may constitute theft or unauthorized possession of another’s property, warranting punishment or ethical condemnation, while other forms may be commendable and praiseworthy, such as reaching into someone’s bag without permission to retrieve an urgently needed medicine for that person.
These explanations clarify that intentional and purposeful human actions are never devoid of associated concepts. In other words, no simple concept exists in purposeful human behaviors; all concepts are composite. Normative disciplines such as jurisprudence, ethics, and law always deal with composite concepts, not simple ones, such as producing sound from the throat. Rather, what is subject to a ruling is, for example, lying, which consists of uttering a statement with meaning, where the speaker intends to convey an external reality that has not occurred, and no higher expediency justifies stating this falsehood.
The Primary Principle of the Jurisprudence of Art Amid Textualism and Criterion-Based Reasoning
With this background, we now examine the concepts included in the jurisprudence of art. Art itself is a general concept encompassing other concepts such as composing poetry, playing musical instruments, singing, painting, sculpting objects or living or imaginary beings, acting, storytelling, dancing, calligraphy, and so forth. The term “art” does not appear in narrations, thus it lacks a religious or conventional religious definition, nor does it have a serious, universally agreed-upon common thread. Instead, it is a customary concept, with some of its instances, such as painting and calligraphy, universally accepted, while others, such as conceptual art (where conventional artistic forms are not necessarily used), are subject to disagreement. Moreover, it can be anticipated that new phenomena and acts will enter the realm of art in the future, differing significantly from current conventional arts. Consequently, art is a broad concept with diverse instances, and to determine the ruling for each artistic concept, that concept must be analyzed and broken down into its constituent elements.
Based on the above, the jurisprudence of art is also an abstract and constructed concept, and attempting to establish a primary principle for art without categorizing and classifying various arts will lead nowhere. It is evident that resorting to the principle of original permissibility (iṣālat al-ibāḥa) is not applicable in this discussion, as every artistic act is accompanied by various individual and social implications whose status must first be clarified.
On the other hand, in the heritage of Islamic jurisprudence and the works of prominent Shia jurists, a spectrum of opinions exists. Some have prohibited concepts such as ghinā, painting living beings, or sculpture in and of themselves, while others have argued that these acts are prohibited due to their association with other forbidden concepts. These latter jurists exhibit a more textualist inclination, in contrast to the understanding of jurists like Ayatollah Alidoust and certain authorities who, in some cases, have issued fatwas based on underlying criteria rather than strict adherence to texts, deeming, for example, sculpture permissible.
Therefore, determining a primary principle in the jurisprudence of art depends on adopting a fundamental approach, namely, defining the scope of criterion-based reasoning, textualism, and even literalism in understanding Shari‘a, at least in the context of the jurisprudence of art. Artistic works are sometimes performed solely with the body, such as pantomime, dance, and performances; sometimes with words alone, like poetry and storytelling; sometimes with both body and words, like theater; sometimes with instruments, like music; and sometimes with a combination of all these and newer phenomena, such as cinema. It is evident that each group of these acts entails distinct implications compared to others. In poetry and storytelling, the criterion for evaluation is the meaning of the words, which encompasses a broad scope; however, in ghinā, as commonly defined, no criterion other than the concept of ghinā itself can typically be identified.
Conclusion
If our method of understanding religious texts involves striving to uncover the underlying criteria within those texts, we can move beyond their apparent meanings to the supporting criteria and distinguish between the associated elements of an artistic act and its essence. By identifying the primary concept subject to the Shari‘a ruling, we can pave the way for recognizing the primary principle of that act. However, it is challenging to find a single criterion for all artistic acts and works or to define a primary principle for all types of arts.