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 Bridging the Gap between Religious Law and Social Norms

 In its original Islamic sense the term “shar’” (religious canon) referred to the laws that had been sent down by God Almighty in the religious texts including the Qur’an and the Prophetic Traditions (ahādith). However, gradually and as the need arose for the interpretation of these texts in order to provide answers to the fresh questions that arose from time to time, a new discipline emerged among the Islamic sciences that came to be known “feqh” (Islamic jurisprudence), which was vested with the responsibility of discovering and extracting rules from the above-mentioned texts and other reliable religious sources, which then became applicable to the new enquiries. In this way, religious laws derived from the Islamic sources increased and over the centuries and as a result of the increasingly fresh legal issues that arose the scope of this discipline expanded. Keeping in view the fact that during the course of its history, Islamic jurisprudence has also always availed of social norms - more particularly in the area of economic transactions - it can, thus, be concluded that Islamic jurisprudence has at all times taken into consideration the needs of the society and the social normative laws, provided they were commensurate with the Islamic religious laws.

The point to bear in mind here is that owing to the presence of a rather strong legal system, in the course of its history, the advent of Islam was followed by fundamental reforms in the legal system of Iran. Since Islam had rapidly spread over a wide range of territories extending from Mesopotamia to Andalusia it provided Muslims, including the Iranians, with an ideal situation to get acquainted with the other cultures of the world. This marked the beginning of a relatively convergent move in the legal system alongside the religious convergence. This factor as well as the changes that had already taken place in the social structure of Iran as a result of embracing Islam such as the abolition of the class system, prompted the Iranians to discard those features of their previous legal system that they found incommensurate with their new cultural environment and instead join the mainstream of the Muslim community and accept the common Islamic legal system.

However, what needs to be borne in mind is that some normative legal features of Iran, rooted in its geographical and other environmental conditions, which were quite commensurate with the tenets of Islam were, thus, treated as valid and acceptable. As a matter of fact, another important point that also needs to be kept in mind is that a lack of consensus that exists among the various Islamic jurisprudents is the outcome of the differences of opinion among them as regards the validity of certain existing social norms. For instance, the laws pertaining to irrigation and water distribution in the Islamic territories including Iran were basically derived from the existing regional-traditional laws that had prevailed on the basis of the geographical conditions of each region. The age-old disagreement over the permissibility or non-permissibility of the sale of water is also based on the fact that in the traditional systems of irrigation, the ownership of water was a function of the ownership of land, and the sale of water was only in practice in such regions as Yazd and Khorāsān in which land and water were usually owned by different parties.

Granting recognition to such methods of transactions as the “Dah Yāzdah” (lit.: Ten-Eleven) and the “Dah Davāzdah” (lit.: Ten-Twelve), which were very common among the pre-Islamic Iranians and which were later on included in the Islamic jurisprudential system along with their Persian terms, is yet another example of the influence of the existing social norms on jurisprudential issues.

Even though drawing a distinction between religious and normative issues dates back to the times of the advent of Islam, it gradually began to spread over a long range of issues and in an organized manner during the Safavid reign. Religious issues that were mainly concerned with personal rights, and to some extent, even criminal laws were under the jurisdiction of religious scholars, while normative issues which involved the establishment of law and order as well as the administrative and financial systems of the country as well as certain aspects of criminal laws were under the direct authority of the Shāh and the people appointed by him.


* source: Pakatchi , Ahmad "Iran Entry" The Great Islamic Encyclopedia. Ed. Kazem Musavi Bojnourdi.Tehran: The Center of Great Islamic Encyclopaedia , 1989-, V.10 ,pp.623 - 624

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