The consideration of custom as a structural benchmark of legal solutions alongside shar‘ī principles elucidates the strong links between political strategies, religious institutions and legal systems. More specifically, it provides unique insight into the creation of national religious identities through the exercise of state authority. Analysis of the legal concept of custom (‘urf) within contemporary Saudi and Iranian legal systems uncovers the connection between the interpretation of religious texts and contextual atmosphere. In applying a legal anthropological method, this book considers the position of custom within Ḥanbalī and Ja‘farī jurisprudence as a legal source and compares the implementation procedure of legal systems with actual court cases from Iran and Saudi Arabia.
Irrespective of whether there is a direct reference to custom, the interpretation and use of Islamic legal principles have a relatively close connection to the surrounding contextual environment. However, the extensive use of customary norms in the absence of legal sources or during the interpretation of legal texts are occasionally in excess of the permitted legal limits. The book compares the methodologies of scholars, diversity of legal opinions (fatwās) and court verdicts (aḥkām) between the two countries by placing a particular emphasis upon the usage of custom, whether in the form of a legal principle with a semi-independent style or the form of a subsidiary source that is dependent upon various legal principles.
Table of Contents (vii)
Acknowledgments (xi)
Introduction (1)
Academic Literature and Methodology (10)
Chapter 1. The Place of Custom in Saudi Arabian and Iranian Legal Systems (23)
Introduction (23)
1. The Relationship between Religion, Culture and Custom (24)
2. The Reaction of Sharī‘a towards Culture and Custom (31)
3. The Distinction between Thaqāfa (Culture), ‘Urf (Custom) and ‘Āda (Usage) (37)
4. Conditions for the Application of ‘Urf in Jurisprudence (43)
5. Methodological Sources of Scholars for Custom (46)
6. Cultural Presumptions within the Fatwās (71)
Conclusion (78)
Chapter 2. The Legal Position of Ḥanbalī and Ja‘farī Schools towards Custom (81)
Introduction (81)
1. The Distinction between ‘Āda (Usage), Ijmā‘ (Consensus), Sīra ‘Uqalā’iyya (Rational Practice) and ‘Urf (84)
2. Legal Proof (Adilla) of ‘Urf and Its Estimation (I‘tibār) (89)
3. Types of ‘Urf in the Shar‘ī Systems (94)
4. The Condition to Apply ‘Urf in the Schools of Law (97)
5. The Legal Position of ‘Urf in the Classical Sources of Schools (101)
6. The Power of ‘Urf in Contemporary Legal Systems (110)
7. The Application of ‘Urf in the Fatwās (116)
Conclusion (127)
Chapter 3. Marriage and Divorce Regulations in Saudi Arabia (131)
Introduction (131)
1. The Connection of Contemporary Saudi Jurisprudence with the Ḥanbalī School (133)
2. Divorce Regulations of Contemporary Saudi Arabia and the Role of ‘Urf (137)
3. Case Studies of Saudi Jurisprudence (157)
Conclusion (181)
Chapter 4. Marriage and Divorce Regulations in Iran (185)
Introduction (185)
1. The Connection of Iranian Jurisprudence with the Ja‘farī School (186)
2. Divorce Regulations of Contemporary Iran and the Role of ‘Urf (192)
3. Case Studies of Iranian Jurisprudence (222)
Conclusion (246)
Conclusion (249)
Appendix (257)
Appendix A: Court Cases of Saudi Arabia (257)
Appendix B: Court Cases of Iran (264)
Glossary (275)
Bibliography (291)