Examining the Conflict Between Predominant Practical Custom and the Rationales of Legal Rulings in the Tension Between Tradition and Modernity

Abstract

In traditional Imami jurisprudence, the concept of ʿurf (custom) has long been recognized under specific conditions. Although custom was not regarded as an independent source of ijtihād (independent legal reasoning), it was at least acknowledged under the scope of rational evidence by jurists and mujtahids. However, following the encounter of Muslim societies with modernity and the emergence of its social institutions—which brought profound transformations to human life—the notion of “predominant practical custom” (al-ʿurf al-ʿamalī al-ghālib) gained increasing attention, particularly in the domains of social and political affairs. Some traditional scholars completely rejected modernity, while others, often labeled as intellectuals, embraced it wholeheartedly. Beyond these extremes, certain uṣūlī jurists sought to theorize this relationship systematically. The present study undertakes an analytical examination of the methodical opinions of contemporary mujtahids within the ongoing struggle between tradition and modernity. The major positions identified include: the theory of “fixed textual rulings and changeable non-textual rulings,” the theory of “manṭaqat al-farāgh” (the domain of legislative discretion), the theory of “jurisprudence of public interest” (fiqh al-maṣlaḥa), and the idea of “permanence of devotional rulings and changeability of transactional rulings.” Among these, the first two theories adopt a minimalistic approach toward custom, whereas the latter two—developed in response to jurisprudence’s practical engagement with social and political matters—promote a maximalist approach that reinforces the role of custom. After elucidating the shortcomings of each theory, the study proposes a fifth approach grounded in the distinction between taʾsīsī (innovative) and imḍāʾī (approbative) rulings. This framework is recommended for further scholarly inquiry as a potential means to resolve the tension between certain traditional jurisprudential rulings and the predominant practical customs of the modern era.