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Islamic Jurisprudence and the Role of Custom

A Comparative Case Study of Saudi Arabia and Iran


An analysis of the connection between Islamic law (sharīʿa) and custom (ʿurf), identifying the ways in which personal and social issues are treated within contemporary Saudi and Iranian legal approaches. Approaches adopted by Saudi-Ḥanbalī and Iranian-Jaʿfarī scholars towards the sharʿī status of ʿurf in three particular categories are examined; the methodological perspective (classic and contemporary), the sharʿī opinions of scholars (fatwā) and the court verdicts of judges (aḥkām). The interaction between custom and textual authority is emphasised, developing an analytical framework of shar‘ī rules that pertain to social relations in general and marital issues in particular.
Publisher: Gorgias Press LLC
Availability: In stock
SKU (ISBN): 978-1-4632-4351-7
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Publication Status: In Print
Publication Date: Mar 15,2022
Interior Color: Black
Trim Size: 6 x 9
Page Count: 301
Language: English
ISBN: 978-1-4632-4351-7
$120.00
Your price: $96.00

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.

 

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.

 

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ContributorBiography

Sümeyra Yakar

Dr Sümeyra Yakar specializes in Islamic law and legal anthropology. She received her Ph.D. from Exeter University (2019) and currently works at the University of Iğdır in Turkey. Her studies focuses on the relationship between theory and practice in shar‘ī legal systems, especially in contemporary Saudi Arabia and Iran. She also studies religious practices, sectarian differences, and the influence of religion on politics in the Middle East.

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)

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