Contributions of ʿUrf (Custom) to Politics and Political Structure with a View to Shia Jurisprudence (From the Perspective of Shia Jurists)

Document Type : Original Article

Authors

1 Department of Political Science, Faculty of Law, Theology, and Political Science, Science and Research Branch, Islamic Azad University, Tehran

2 Department of Political Science, Faculty of Law, Theology, and Political Science, Science and Research Branch, Islamic Azad University, Tehran, Iran

3 Department of Political Science, Qom Branch, Islamic Azad University, Qom, Iran.

10.22081/jips.2025.72385.1083

Abstract

Custom or customary practice (ʿurf) is an important phenomenon in Shiite jurisprudence, which became more intertwined with its discourse after the dominance of the Usuli scholars over the Akhbari tradition. The main objective of this study is to provide a comprehensive and independent summary of innovative customary practices and
their significant roles in the political realm and the political structure, approached from a jurisprudential and novel perspective with operational attention to them. This leads to the resolution of one of the crucial issues in political jurisprudence. Strengthening the primary (or authentic) role of custom, both theoretically and practically, in the face of its neglect in various political and structural domains is among the key and practical goals. Notably, although, since the recent century, Shiite jurisprudence has developed new terms such as "sīra" (tradition) and "bināʾ al-ʿuqalāʾ" (the established practice of the rational), and as a result, there is relative efficiency of custom in the realms of jurisprudence and ijtihad, the use of custom—especially in the context of political issues and political jurisprudence—has remained scattered. Therefore, the question raised in this research is related to the customary innovations in politics and its structure from a jurisprudential-theoretical approach. What is the role of custom from the perspective of Islamic jurisprudence and Shia jurists in politics and its related structure? What are its innovative aspects from a jurisprudential viewpoint? This is considered a key research question, and providing a substantiated answer to it, while considering the political and social processes of each era and their role in shaping the theoretical foundations of multiple jurists, will yield important results. In the present work, through a descriptive-analytical method and a jurisprudential approach, we will elucidate the innovative aspects of custom. Accordingly, by considering factors such as revisiting the theoretical framework of jurists and adopting their principles in the political and social events of their time—particularly focusing on the political-social conditions of the Constitutional Revolution and its aftermath—and analyzing their views and opinions when faced with the events and incidents surrounding them, important results regarding the establishment and innovations of custom in politics have been extracted. As a result, aspects such as: the practical application of the principle of "repelling the more corrupt with the less corrupt" (dafʿ al-afsad bi-l-fāsid) in politics based on custom, the establishment of a political system based on general elections and majority rule, the non-separation of religion and politics with an emphasis on custom, the development of laws and customary institutions (such as the consultative assembly and the executive branch) during the Constitutional period, the theoretical attention to enjoining good, forbidding evil, and advice to the Muslim community, theorizing the council and customary consultation in political jurisprudence, and the expansion of the "zone of legal lacuna" (minṭaqat al-farāgh al-sharʿī) to allow for the operation of customary reason after the Constitutional period and in the present era, are among the most significant establishments and innovations of custom in politics and political jurisprudence. These were considered within the intellectual and theoretical framework of some of the jurists of the Constitutional period, such as Ayatollah Nāʾīnī, and some other contemporary jurists. The conclusion drawn from this is that in Shia jurisprudence, custom has had significant innovations in the realm of politics from the Constitutional period onward. Although in some cases, these innovations were based on desperate necessity (iḍṭirār) and the principle of "repelling the more corrupt with the less corrupt," in the view of some contemporary jurists, legitimacy and originality have been granted to them in areas like allegiance, elections, the formation of government, enjoining good, etc. This innovative approach has introduced a new and practical transformation regarding custom in the political realm.

Keywords

Main Subjects

References

The Holy Quran.
Alidoust, A. (2009). Fiqh and custom. Tehran: Publications of the Research Institute of Islamic Culture and Thought. [In Persian]
Amid, H. (1979). Amid Dictionary (17th ed.). Tehran: Amir Kabir Publications. [In Persian]
Arfa, S. K. (2007). Tarjumh-yi Rāvan-i Nahj al-Balāgha. Tehran: Fayḍ Kāshānī Publications. [In Persian]
Asefi, M. M. (2006). Theoretical Foundations of Islamic Governance (M. S. Sepehri, Ttrans.). Tehran: The World Forum for Proximity of Islamic Schools of Thought Press. [In Persian]
Bahadori Jahromi, A., & Shabanpour, R. (2013). The role of custom in Islamic law-making. Studies in Islamic Governmental Law, 2(3), pp. 159–187. [In Persian]
Beheshti, A. (2007). Political thought of Naʾini (Vol. 8). Qom: Boostan-e Ketab Institute. [In Persian]
Fayadh, M. A. (1990). Muḥāḍarāt fī Uṣūl al-Fiqh (Vol. 1; 3rd ed.). Qom: Dar al-Hadi Publications. [In Arabic]
Hashemi Shahroudi, M. (1985). Buḥūth fī ʿIlm al-Uṣūl (Vol. 4). Qom: Al-Majmaʿ
al-ʿIlmi li-l-Shahid al-Sadr. [In Arabic]
Hashemi Shahroudi, S. M. (2013). Culture of jurisprudence in accordance with the doctrine of the Ahl al-Bayt (Vol. 5). Qom: Encyclopedia Institute of Islamic Jurisprudence. [In Persian]
Hashemi, A., & Mehrazar, H. (2014). Sheikh Fazlullah Nouri and his fundamental opposition to constitutionalism. Zharfāpazhūh, 1(1), pp. 155–177. [In Persian]
Ibn Fāris (1985). Muʿjam Maqāyīs al-Lugha (Vol. 4). ʿA. M. Hārūn (ed.). Qom: Maktabat al-Kalām al-Islāmī. [In Arabic]
Ibn Manẓūr, Muḥammad ibn Mukarram. (1988). Lisān al-ʿArab. Beirut: Dār Iḥyāʾ
al-Turāth al-ʿArabī. [In Arabic]
Izedehi, S. S. (2010). Supervising the Power in Political Jurisprudence. Qom: Research Institute for Islamic Culture and Thought. [In Persian]
Jafari Langarudi, M. (2013). Legal terminology (5th ed.). Tehran: Ganj Danesh Publications. [In Persian]
Javadi Amoli, A. (2004). The guardianship of the jurist: The rule of jurisprudence and justice. Qom: Esra Publications. [In Persian]
Khomeini, S. R. A. (1990). Ṣaḥīfa-yi Nūr. Tehran: Islamic Revolution Cultural Documents Organization. [In Persian]
Khomeini, S.R.A. (2006). Al-Rasāʾil (Vol. 2). Ismailian Institute. [In Arabic]
Kulaynī, M. (1981). Al-Uṣūl min al-Kāfi (Vol. 1). Dar al-Taʿāruf; Dar al-Ṣaʿb. [In Arabic]
Majlisī, M. B. (1983). Biḥār al-Anwār (Vol. 72). Beirut: Dar al-Ihyaʾ al-Turath
al-ʿArabi. [In Arabic]
Makarem Shirazi, N. (2007). Encyclopedia of comparative jurisprudence (Vol. 1). Qom: Imam Ali ibn Abi Talib School Publications. [In Arabic]
Malekzadeh, M. (2011). Religious foundations of the Constitution of the Islamic Republic of Iran. Tehran: Islamic Revolution Document Center Publications. [In Persian]
Mir-Ali, M. A. (2012). The role of councils in the system of religious democracy. Qom: Imam Khomeini Education and Research Institute Publications. [In Persian]
Miri, S. J. (2019). Distinction between the secular and the customary. Tehran: Naqd-e Farhang Publications. [In Persian]
Mohammadi, A. (2002). Foundations of Islamic legal inference. (26th ed.). Tehran: University of Tehran Press. [In Persian]
Mohammadi, A. (2006). Foundations of Islamic legal inference. (26th ed.). Tehran: University of Tehran Press. [In Persian]
Movasaghi, A. (2006). Modernization and reforms in Iran: From theory to practice. Tehran: Ghoomes Publications. [In Persian]
Nāʾīnī, M. H. (1982). Tanbīh al-Umma wa-Tanzīh al-Milla (Vol. 9). Tehran: Sharekat-haye Enteshar Publications. [In Persian]
Nojoumian, H. (1969). The field of comparative law in legal systems. N. p.: Jafari Bookstore. [In Persian]
Norouzi, M. J. (2014). Critique and evaluation of the customary approach in the Islamic Republic of Iran. Qom: Islamic Sciences and Culture Academy. [In Persian]
Pashasaleh, A. (1994). Concise Saleh Dictionary of Legal, Political, and Economic Terms. Tehran: University of Tehran Press. [In Persian]
Pourfard, M. (2005). Religious democracy. Qom: Islamic Sciences and Culture Academy. [In Persian]
Rafi, H., & Abbaszadeh Marzbali, M. (2015). Allamah Mohammad Hossein Na'ini and the defense of constitutional government. Political Studies, 8(29),
pp. 75–100. [In Persian]
Rāghib al-Iṣfahānī, H. (1972). Al-Mufradāt fī Gharīb al-Qurʾān (N. Marashli, Ed.). N.p.: Al-Taqaddum al-Arabi Press. [In Arabic]
Saadi, M. J. (2016). The role of custom in deriving religious rulings. Tehran: Sabz Rayan Gostaresh Publications. [In Persian]
Sadr, M. B. (1978). Lamḥat al-Faqīh (Al-Tamhīdiyya). Tehran: Jihad al-Bina. [In Arabic]
Sadr, M. B. (1989). Durūṣ fī ʿIlm al-Uṣūl (Vol. 1). Qom: Islamic Publishing Institute. [In Arabic]
Sadr, M. B. (n.d.). Al-Islam yaqūd al-ḥayāt. Tehran: Ministry of Culture and Islamic Guidance. [In Arabic]
Ṣadūq, M. (1992). Man lā-yaḥḍuruh al-faqīh. (A.A. Ghaffari, Ed.). Qom: Islamic Publishing Office affiliated with the Society of Seminary Teachers of Qom.
[In Arabic]
Sajjadi, A. (2008). Foundations of political parties in Islamic political thought. Tehran: Boostan-e Ketab Institute. [In Persian]
Salehi Najafabadi, N. A. (1984). The guardianship of the jurist: The government of the righteous (Vol. 6). Tehran: Rasa Cultural Institute. [In Persian]
Vasei, S. S. (2000). Fiqh and custom. Qabsat, no. 15-16. [In Persian]
Zarei, B., & Varaei, S. J. (2020). Jurisprudential foundations of the constitutional revolution in the political thought of Ayatollah Na'ini. Governance Jurisprudence, 9, pp. 7–29. [In Persian]
Zuḥaylī, W. (1997). Al-‘Urf wa-l-ʿāda. Damascus: Dar al-Maktabi Publications. [In Arabic]
 
 
Journal of Islamic Political Studies
Volume 7, Issue 1
January 2025
Pages 121-144

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