Introduction
Methodology in contemporary jurisprudence has only been a focus of attention for a few years, and it is mentioned to some extent in the writings and lessons on the subject. Regarding nascent jurisprudential fields, especially the Fiqh of Media, the question has always been whether each of these jurisprudential domains has its own specific method for solving issues, or if contemporary jurisprudence, or the science of Fiqh as a whole, employs a single method for problem-solving. Hujjat al-Islam wa al-Muslimin Mohammad Ashayeri Monfared extends the problem of methodology to all contemporary jurisprudences, though he considers it more severe in the Fiqh of Media. According to this professor and author from the Qom Seminary, to solve the issues of Fiqh of Media, we are compelled to use interdisciplinary studies; otherwise, without such studies, we will not have the ability to efficiently solve the problems of the Fiqh of Media. The detailed account of the exclusive and insightful interview of the faculty member of Al-Mustafa International University with Contemporary Jurisprudence follows:
Contemporary Jurisprudence: What is Fiqh of Media, and what are its imperatives?
Ashayeri-Monfared: When we speak of Fiqh of Media, we are in fact speaking of an annectant jurisprudence (fiqh mudaf); that is, a jurisprudence whose annex is media. We are familiar with Fiqh, but to understand media, we must have a correct and precise definition of its pillars, components, and the attributes of its pillars, so that we can design real issues and sub-branches for media. In other words, when we speak of Fiqh of Media, we do not have the right to address sub-branches that are common between media and other things. This means we cannot take the prohibition of lying (kidhb) or backbiting (ghibah) and discuss them as jurisprudential sub-branches of media. Rather, we must understand media in such a way that our method of understanding and perception of its nature shows us what the specific sub-branches are that exist in the essence of media and are particular to it. If this happens, then we can arrive at sub-branches that are exclusive to media, or if these sub-branches are also discussed in non-media contexts, like the prohibition of lying, at least some changes will occur in the sub-branches and issues that make them native to media itself.
For example, if we are familiar with the media’s power to create falsehood and can understand the techniques modern and new media use to perpetrate lies—and there are nearly ten techniques for the unreal, false, and tainted transmission of a reality in media—if we can identify those ten techniques, then we can speak of models of message transmission suspected of being false and discuss them in the Fiqh of Media in a way that is exclusive to media and does not exist in personal falsehood. The reason they say that to the extent we understand media, its nature, pillars, and tools, we can find and discuss the special issues and sub-branches of media, is that without this understanding, we cannot deduce correct and precise rulings. For example, when someone has a media outlet, it means they possess a power in that field. For instance, when one creates a media outlet on the topic of child-rearing, it implies, “I am an expert and possess power in this area.” Now, if they create this media outlet without this awareness and power, the very establishment is a form of falsehood. If my specialty is not law, but I come and create a page and channel in the field of law and give advice, this act is a form of falsehood.
If we understand media in this way, then in the Fiqh of Media, we do not speak of the exceptions to backbiting or the difference between lying and equivocation (tawriyah). In the Fiqh of Media, if we want to talk about backbiting, we must talk about the types of backbiting that can be created exclusively by media, not those that can be created without it. Discussions of this kind that are raised in the Fiqh of Media are in reality “pseudo-Fiqh of Media,” not “Fiqh of Media.”
Contemporary Jurisprudence: Is the methodology for solving contemporary issues different from the one for traditional jurisprudential matters?
Ashayeri-Monfared: Naturally, there are differences between deducing a Shar’i ruling for a newly-arisen issue versus a non-newly-arisen issue or subjects like prayer (salah) and fasting (sawm) which were invented by the Lawgiver Himself. However, before I point out this difference, I want to direct minds to a more important point, which is that the word “issue” (mas’alah) is apparently a homonym. When we say solving an issue, “issue” can have two meanings: one meaning is the conception we have in our conventional and traditional jurisprudence regarding jurisprudential sub-branches, based on which we write books like “Tawdih al-Masail,” “Jami’ al-Masail,” and “Majma’ al-Masail.” The intended meaning of “issue” in this terminology is these same conventional jurisprudential sub-branches. Its second meaning is synonymous with “problem,” and solving an issue in this sense means there is a problem that has not been solved yet and is intended to be solved. We must see whether our intention is the first or the second.
If I were to give an example from the Fiqh of Art, I would offer this. In Fiqh, we tell women that they must observe their hijab. This recommendation is not only a recommendation of Islam but even of some feminist schools of thought that insist women should not put their sexual attractions on public display, so that their female identity and authority are not lost beneath their sexual appeal. Now, a woman wants to play the role of a “bad” woman in front of the camera. On the one hand, the Shari’ah tells her she must wear a hijab always and in all situations; on the other hand, the role requires her not to wear a hijab. There is an issue here. If we consider the issue in its first meaning, its Shar’i ruling is the obligation to observe hijab. But if we consider it in the sense of a problem and a challenge, then we must have an interdisciplinary study and place some people with dramatic studies or experiences alongside the jurist, so that together they can find a solution to this problem, allowing female actors to play different roles while observing Shar’i standards.
One of the problems for which a solution was found was the issue of representing the faces of the Infallibles (AS) in cinema, where through certain methods, while the face of the Infallible (AS) was not shown, their presence was felt in the film. This is called problem-solving.
One of the important imperatives of problem-solving is conducting interdisciplinary studies. In this very issue I mentioned, a jurist and a cinema specialist must be placed alongside each other to reach a solution; it should not be that the one whose specialty is cinema decides on matters of Fiqh, nor that the one whose specialty is Fiqh decides on matters of cinema. One of the problems that exists in the country and prevents us from reaching conclusions on subjects and being able to solve issues is this very lack of interdisciplinary studies. For example: currently, in the realm of art, there is censorship in the country. However, neither I, the jurist, know what the problems of censorship are, nor does the enforcer of censorship, the Ministry of Guidance, know my concerns as a jurist, and neither of us knows the opinions of the artists. I sit alone and practice jurisprudence for myself; the censor also sits alone and writes laws for themselves, and the artist produces their artwork alone. We are all unaware of each other’s situations and concerns, whereas if we were to sit together, we could reach a common solution.
But regarding solving an issue in the first sense, the first step is to have a correct understanding of the subject. The subjects of media are not subjects that are mentioned in the sacred texts (nusus) or invented by the Shari’ah, for which one can refer to texts or dictionaries to become familiar with them. Rather, we must encounter this phenomenon; otherwise, without encountering it, we cannot grasp the essence of the issue and become precisely acquainted with it. This problem, of course, is not specific to the Fiqh of Media but also exists in other nascent jurisprudential domains. This is our most common problem in contemporary jurisprudences. For a jurist to be able to issue a fatwa on a contemporary subject, they must properly understand the essence of that subject, its accidents, and its consequences; otherwise, they cannot issue a sound, complete, and precise fatwa.
Contemporary Jurisprudence: Solving the issues of Fiqh of Media requires consideration of what imperatives?
Ashayeri-Monfared: From the explanations I have provided, it is understood automatically what imperatives the methodology for solving issues in the Fiqh of Media has. Its imperatives are these very matters I mentioned: namely, precise and comprehensive subject-matter identification and the necessity of interdisciplinary studies. Although these points exist in all annectant jurisprudences, in the Fiqh of Media, they possess unique complexities that must be taken into consideration. This is because subject-matter identification and understanding the essence of media subjects are not possible with mere general knowledge; rather, it is necessary either for the jurist to have sufficient knowledge in this field themselves or to use specialized consultants to achieve a precise understanding of the subject.