Introduction
It can perhaps be said that among the researchers and professors of Fiqh of Media, Hujjat al-Islam wa al-Muslimin Ali Nahavandi has exerted the most effort and diligence. The authorship of more than ten books and several articles, years of teaching advanced kharij lessons on the Fiqh of Media alongside numerous lectures at universities, ten years as the director of IRIB for Khorasan Province, and several years as the director of the Islamic Research Center for Media have made him one of the most important experts in the Fiqh of Media. In this note, which is derived from his lecture in the twelfth session of the training course on Fiqh of Media, Communications, and Cyberspace at Baqir al-Olum University, he analyzes the methodological differences between the Fiqh of Media and other jurisprudential domains. He considers the most important imperative for the Fiqh of Media, relative to traditional jurisprudences, to be the necessity of shifting from a subject-centric to a system-centric approach. The full text of this note, which he has provided to Contemporary Jurisprudence, follows:
In the traditional view, Fiqh is subject-centric. In the traditional view, Ijtihad has fundamentally been defined as “kashf al-hukm ‘an madrakihi” (discovering the ruling from its source), and the ruling (hukm) has been considered a Shar’i validation related to the actions of individuals. The actions of individuals naturally made the approach a micro-level, subject-centric one. But we must change our approach from Micro-Fiqh to Macro-Fiqh. In the apparatus of Macro-Fiqh, a ruling is defined as: “a validation issued by the Lawgiver to regulate human life.” Here, systems of life are at issue, such as communication systems, under which media is defined. Fiqh, in this approach, is a mechanism that grants legitimacy to systems.
The innovator of this approach in the contemporary era is Shahid al-Sadr (may he rest in peace), who proposed the thematic-interrogative method in dealing with subjects. In subsequent steps, others developed this and added new tools and elements such as Maqasid al-Shari’ah (the objectives of the Shari’ah) and so on. Shahid al-Sadr presented general outlines, and we must follow these same lines. These general outlines are frameworks that the Shari’ah has established for the system of human life and must be subjected to jurisprudential discussion.
In my opinion, for specialized jurisprudences, we do not need an independent Principles of Fiqh for the apparatus of Ijtihad; rather, we must evolve this same Jawahiri method of Ijtihad. One of the areas of evolution is the evolution from being subject-centric to system-centric.
Among the domains in need of methodological evolution is subject-matter identification. The goal of Micro-Fiqh is the deduction of a ruling based on primary titles and the external subject. Conventional Fiqh mainly analyzes the subject based on primary titles and also considers the investigation of the external reality of the subject to be outside the domain of jurisprudence, and does not apply it to external instances. It also primarily refers the delimitation of subjects—in non-Shar’i subjects—to common custom (‘urf). However, in specialized Fiqh—such as Fiqh of Media—we must examine the subjects of rulings and their instances, and apply the titles of subjects to external instances, then arrive at a network of issues, and in addition, create a matrix of the system related to that subject—for example, the media system—with other systems, and then proceed to deduce the ruling. The deduction of rulings for these subjects must be done by examining the social, security, political, international, and other consequences, and without this examination, the implementation of that ruling may have improper consequences. Therefore, these various dimensions cannot be referred to custom; rather, they require the expert opinion of specialists. Subjects in newly-arisen issues—such as media—are in some cases excluded from the generalities and universals of the proofs for primary titles by way of particularization (takhsis) and in some cases by way of specialization (takhassus); that is, a portion of these must fundamentally be examined under secondary titles or through a governmental ruling.
Subject-matter identification in specialized Fiqh has a three-sided model in which common custom and expert opinion are two of its sides, and each must be considered in its proper place. The precedent for the involvement of custom in jurisprudence dates back to the periods of community-building by the Sunnis, and the Shi’a were influenced by the Sunnis in this regard. We must, based on the school of the Ahl al-Bayt (peace be upon them), ascertain the correct place of custom in jurisprudence.
For example, in Micro-Fiqh, we consider the subject of caricature under the category of drawing and illustration. We then measure this title against general principles and establish the ruling of non-prohibition for the act of caricature itself. However, in the Macro-Fiqh approach, the subject of the jurist’s investigation into the issue of caricature is not illustration at all, because caricature is an independent issue separate from drawing and has different functions. This artwork must be examined from the aspects of harming a believer, backbiting, satire, and so on. The very foundation of caricature was based on the function of satire, not illustration or artistic work.
Another example is sculpture-making. In Micro-Fiqh, some have prohibited it from the aspect of being an idol, and some have prohibited it absolutely and in itself. But today we are faced with a phenomenon called volumeless sculptures, which use light and water to create the illusion of volume for the audience. Also, miniatures, dolls, and so on are modified forms of living beings. Do these fall under the title of sculpture-making? Based on the conventional methodology, these can be placed under the generalities and universals of sculpture-making; but in Macro-Fiqh, one must first identify the dimensions of the subject in the realm of reality.
Of course, the fact that subject-matter identification is one of the duties of the jurisprudential apparatus and that the delimitation of subjects cannot be solely referred to custom is not exclusive to Macro-Fiqh and has precedents in conventional Fiqh as well. For example, ghina’ (singing) is a subject that cannot be delimited by referring to custom; rather, it has complexities that require expert work. Therefore, Mirza-ye Qomi and others have independent treatises on this matter.
Regarding media, we must also pay attention to this point: technology, irrespective of its content, has dimensions, the most important of which is the media dimension. Fundamentally, the goal of the secular person is to lead humanity into a media world. Media, in the thought of the modern secular person, is the intermediary between man and the world (just as in religious perception, for example, we consider angels as intermediaries of grace between God and man), and the goal of this movement is the media world; that is, the immersion of man in media sensations, a media outlook, and so on. Without considering this dimension, one cannot engage in the identification of rulings for subjects.
When we want to address the Fiqh of Media, we must recognize the diverse functions of media and issue rulings in accordance with these functions. The tools of media are technologies that must be subjected to jurisprudential review independent of their content. The breakdown of media into content-oriented titles like lying, backbiting, mockery, and so on is, in reality, “Fiqh in Media,” not “Fiqh of Media.” Modern technology has taken shape under the atmosphere of secularism and has a decidedly secular orientation. For instance, it is not the case that the internet is at my will’s disposal and acts as I will it to. Therefore, before entering the Fiqh of Media, the philosophy of technology must be discussed. It is after understanding the technical space of media and then the interaction of its technological dimension with educational, pedagogical, and other systems that one can seek to discover its ruling. In specialized Fiqh, the specialized subject should not be reduced to the level of a platform; rather, it must be understood with its own backing and context, although the realm of technique and platform must also be organized under the supervision and guidance of Fiqh.
Therefore, the analysis of subjects and the understanding of the conditions of time and place in something like “Fiqh of Media” require specialized expert opinions and interaction with various cultural, security, economic, and other institutions. However, it is the jurist who has oversight over this entire process and issues the final ruling with his jurisprudence. The jurist must be in such a way that he is not deceived by the secular orientation of specialized sciences and expert opinions and can ultimately arrive at a legitimate and Shar’i-authoritative opinion.