فصلنامه الهیات هنر
پیاپی 10 (پاییز 1396)

What should a faqih (jurisprudent) rely on, when trying to find the jurisprudential rule of matters: name, function and/or identity? The results obtained from these three approaches are obviously different. Likewise, it is necessary to first review and look deep down into these three approaches in order to attain an awareness of the approach of Fiqh and its resources and finally to understand what position religious texts and Shi’i jurisprudence take in this regard. Consequently, we will be able to adopt the correct and complete inference method by adherence to these texts in accordance with jurisprudential rules.
Having examined the existing texts, we come across two matters which seem to have apparent inconsistency at first sight. There are some rules in religious texts which can be interpreted and looked upon from a functionalist perspective, for example: (God Almighty forbade wine not for its name but for its effects; so that which results in drunkenness is wine). On the other hand, there are some traditions from which nominalism can be interpreted. In this case, the most important obligation incumbent upon faqih is to know the correct case, that is, to know if the tradition refers to a label or a name. In Shi’i jurisprudence (fiqh), most jurisprudents apply themselves to nominalism unless, due to certain reasons, a faqih quits nominalism and turns to functionalism with respect to the dominant jurisprudence and jurisprudential principles and procedures. In this case, the issue of the relation between judgment and subject is raised in fiqh. Also, the current article on functionalism and nominalism aims to address music and ghena as one of the artistic definitions. The author presents a new approach to jurisprudential researches through defining identity, illustrating its difference with functionalism and explaining some of its jurisprudential aspects. Accordingly, due to the change in the identity of some definitions using this method, their rule also changes.
Finally, the present study focusing on the principle of nominalism in Shi’i jurisprudence (fiqh) shows that the criterion for the use of functionalism or identity is subject to Shari’ah’s explanation, the understanding of the custom, or the perception of reason.

The current article first addresses the necessity of a different look at the concept of art which has moved away from a merely decorative purpose to involve one of the necessities of today’s social life. Then, through incorporating the fiqh of art into social jurisprudence (not individual jurisprudence) considers the themes and criteria of this part of fiqh to be different from those of fiqh e Ta’abodi (associated with the intention of getting closer to Allah), illustrating that since a major part of social jurisprudence is non-Ta’abodi, the criteria of its judgment should be extracted and reviewed accordingly.
It is shown that some issues in traditions are not decisively ruled out in religion and are classified as “beyond”-mafoq- which are relevant; and ghena, music and sculpture are in the same category accordingly. In other words, ghena, and sculpture are prohibited (haram) if they are classified, and they are not prohibited (haram) by themselves. Likewise, flute, oud, mizmār and other musical instruments are forbidden (haram) if they fall into group of alat e lahv (unpermissible enjoyment and entertainment instruments), otherwise they are not prohibited.
Following the above discussion, the main goal is to expand and analyze “the method of Ijtihad in fiqh of art”. This study first presents the necessity of faqih’s view towards art as a requirement and examines the existing criteria in fiqh of art. Then, a discussion is presented on some independent or dependent subjects. Furthermore, due to several purposes, an artwork may be associated and deal with humor and wit, therefore fiqih should take these matters into consideration and issue rules accordingly.

“Adapted Comic Art” is a kind of artwork which has long enjoyed a special status among different cultures and nations and has had a significant influence on the transmission of social, political, ethical and cultural concepts to its audience, which, in its broader sense, includes caricature, humor and artistic imitation, etc. Since the common aspect of such works is their adaptation from intellectual creation of others, in the copyright system they are known as an adaptive work per se. The main problem originates from the fact that, according to the traditional copyright system, the creator of the secondary work needs to ask for permission from the creator of the original work in order to create an adaptive work; commitment to such act concerning the above-mentioned works, however, can be an important obstacle to creators of these works and have a reverse effect on the process of growth and development of such works in the society which is precisely in the opposite direction of goals and principles of the intellectual property system, that is the foundation for the development of intellectual works. Therefore, lawmakers have passed a new law in the recent decade in the rights of many advanced counties- the exclusion of such works from the need to obtain permission- and have placed these works in the category of educational and research activities as another exception to material rights of the creator in the modern copyright system. Nevertheless, the exception is neglected in the legal system of many countries such as the current law and even in the new Article of the Copyright Law of Iran. The present study attempts to first analyze and describe different aspects of this exception, examine the views of its proponents and opponents, explain the possibility of expanding it to other cases, and then clarify its status in laws of different countries such as Iran and probably International Regulations. Finally, this study seeks to propose corrective measures in this regard to the Iranian lawmakers.

One of the key challenges of the government is the negations existing between religious Do’s and Don’ts in art. In examining these negations, the jurisprudents (fuqaha) make no separation between incompatibility (tazahom) of the rules relating to fiqh of art and incompatibility of the art rights, rather they apply the rule of important and most important to all these incompatibilities. The current article aims to address the issue of incompatibilities of rights and examine if its exit mechanism is the same as the rule of important and most important. Moreover, this study attempts to present a certain jurisprudential algorithm with a definite beginning and end to exit the incompatibilities of art rights through providing a proper definition of incompatibility of art rights.

The current article examines the criterion of jurisprudential debate in dealing with art. The author addresses the above subject from three different perspectives namely “artist”, “audience” and “artwork”.
As regards the creator of the artwork, the artist’s intention is the main discussion point, approached from two aspects: “compatibility of the intention with the effect” and “incompatibility of the intention with the effect”. Accordingly, referring to some traditions and sireh of the infallibles, the former encompasses rules of preference -Istihbab- and detestability –Kirahat- (in various assumptions), while the latter covers inqiyad and tajarri (the intention of committing sin).
As regards the audience of artworks, the present study discusses the type of effect that the artwork creates and presents the conditions of permission and forbiddance of using such works. Likewise, the issue of lahv (corrupting entertainment) and absolute aesthetic pleasure is brought up when no evidence of ethical or religious impact (positive or negative) is seen.
Finally, as regards the “text of an artwork”, an examination of the permission or forbiddance of publication of artworks in accordance with incompatibility (tazahom) under different conditions and with respect to special language of art is addressed, while considering issuance of its rule specific to religious leaders and not individual mukallaf. 2

The current article addresses an interdisciplinary discussion on fiqh and aestheticism; in its general sense, it is synonymous with philosophy of art and discusses the existence of aesthetics. Aesthetics, apart from acceptance of artistic and aesthetic rules, is also associated with jurisprudential rule. One of the association of jurisprudential rule with aesthetics is the issue of preferences of Imam Jama’at in jama’at prayer, which is titled as “beauty of face” in traditions and sources of jurisprudence. The current article, through attending jurisprudence and reviewing the words of jurisprudents from the Qudama to the Muta`akhireen, examines the above issue from the viewpoint of Sadar al-Mutalehin and proves the perfection of apparent beauty from Sadra’s perspective. Moreover, this study, using Sadra’s association with the same jurisprudence in his works for perfection of beauty, provides a connection between jurisprudence and aestheticism and draws some peliminary conclusions for it in fiqh.

The attitude toward music and ghena, in Islamic Shari’a, has always been an important and controversial issue. Therefore, the current study aims to examine the ideas of two of the influential jurisprudents of Ahl al-Sunnah on this matter. Herein, the views of Abu Hamid Al-Ghazali and Ibn Taymiyya on the issue of “hearing ghena” are addressed. The final conclusion of their religious research was shown to be completely different. In Ghazali’s view, ghena is permitted (mubah) based on validity evidence which may imply various jurisprudential rules based on corruption or expedience. Ibn Taymiyya al-Hanbali, however, like many Sunni scholars, believes in hurmat (prohibition) and considers those who believe in “permission of music” as heretic. The present study tries to show that different views of these two thinkers, though they both refer to book and tradition, imply a different way of understanding and perception of religion as well as ghena.