The Implicit Role of Custom ('URF) in the Islamic Juriprudence of Saudi Arabia and Iran, A Comparative Legal Study of Mu'amalat (Marriage and Divorce Rules)

Abstract

This research is an analysis of the connection between Islamic law (sharī‘a) and custom (‘urf); it proposes to identify how personal and social issues are treated within contemporary Saudi and Iranian legal approaches. The primary objective is to emphasise the interaction between custom and textual authority, and to develop an analytical framework of shar‘ī rules: namely, those that pertain to social relations in general and marital issues in particular. The study compares approaches adopted by Saudi-Ḥanbalī and Iranian-Ja‘farī scholars towards the shar‘ī status of ‘urf in three particular categories; the methodological perspective (classic and contemporary), the shar‘ī opinions of scholars (fatwā) and the court verdicts of judges (aḥkām). The research illustrates the ways in which scholars achieve different implementations in their sharī‘a systems through the application of direct or indirect ‘urf. This research also examines the extent to which the shar‘ī regulations have been altered or sustained through the prioritisation of the legal concept of ‘urf. The attitude of ‘ulamā’ (religious scholars) towards the application of ‘urf demonstrates that both the classical Ḥanbalī and Ja‘farī schools have approved the validity of ‘urf in the shar‘ī area. This applies both to direct usage of ‘urf and manipulations of its utility by rational explanations or secondary legal principles. This research compares the diversity of legal opinions and court verdicts between the two countries. It places a particular emphasis upon the usage of ‘urf, whether in the form of a shar‘ī principle with semi-independent status or the form of a subsidiary source that is dependent upon various shar‘ī principles. The last two sections link the diversity of legal implementations with the indigenous customs of both Saudi Arabia and Iran – this in turn justifies the complexity and discrepancy of fatwās and aḥkām in cases pertaining to personal issues. Considering ‘urf as a legal device alongside various legal principles allows the two states to frame their political strategies in religiously acceptable terminology. It specifically provides insight into the creation of national religious identities through the exercise of state authority. The ambiguity which arises from the transformation of theory into practice plausibly helps to explain discrepancies in the legal systems of the two states and this lends further evidence with which to answer the question of whether or not there is an absence of legal methodology in Saudi Arabia and Iran. However, this thesis attempts to demonstrate that the legal use of ‘urf in the two contexts avoids the simple explanation that divergence between the two systems is due to a lack of methodology. It is hoped that the analysis of the legal concept of ‘urf within the contemporary Saudi and Iranian legal systems will stimulate further research on the role of ‘urf. The current study points towards the need for further research which should deepen our understanding of the ways in which judges, authorised within particular legal systems, have sought to utilise local customs within their sharī‘a-based courts.