The Functionality of Custom (‘Urf) in Bay‘ah, Elections, and Shura from the Perspective of Political Jurisprudence

Custom (‘urf) is a significant phenomenon in Shi‘i jurisprudence which, following the intellectual ascendancy of Usuli jurists over the Akhbaris, became increasingly familiar within Shi‘i legal discourse. From the past century onward, Shi‘i jurisprudence has also developed new conceptual tools, including notions such as sirat (practice) and bina’ al-‘uqala’ (the practice of rational agents). As a result, we witness the relative effectiveness of ‘urf in the fields of jurisprudence and ijtihad. Notwithstanding this development, the application of ‘urf, particularly in the domain of political issues and political jurisprudence, has remained fragmented and has generally lacked systematic theoretical and practical attention. Accordingly, the central question of this study concerns the role and status of ‘urf—from a jurisprudential and theoretical perspective—in areas such as bay‘ah (allegiance), elections, and shura (consultation). A review of the existing literature indicates that although studies have been conducted on shura, bay‘ah, political participation from Qur’anic or jurisprudential perspectives, and the position of bay‘ah and elections in the Islamic political system, a significant gap remains. This gap lies in the lack of focused attention to the status of ‘urf in bay‘ah, elections, and shura based on the principles and evidences of political jurisprudence —an issue that constitutes one of the key topics in this field. Given the importance of this subject, the present study adopts a jurisprudential and argumentative approach to examine the functionality and effectiveness of ‘urf in major political arenas such as bay‘ah, elections, and shura. With an innovative perspective—such as re-evaluating the theoretical frameworks of jurists and incorporating the evidences of political jurisprudence —the study elucidates the relationship between ‘urf and bay‘ah, elections, and shura, and highlights the essential and effective role of ‘urf in these domains. Using a descriptive–analytical method and relying on evidences such as the practice of the Infallibles in their engagement with prevailing customs at the time of bay‘ah, the right to self-determination, and the probative authority of rational practices (sirat al-‘uqala’), the study demonstrates the fundamental effectiveness of ‘urf in areas such as the establishment of political systems and their functions, grounded in bay‘ah, public elections, and adherence to majority opinion. The findings indicate that ‘urf and the people, within the Shi‘i political system, play an effective and essential role through mechanisms such as bay‘ah or elections. In the absence of explicit textual designation—such as in the case of the rule of the Infallible—‘urf constitutes one of the principal pillars of the legitimacy of religious governance.
Furthermore, based on the scope and implications of the evidences of shura—particularly the two Qur’anic verses “and their affairs are conducted through consultation among them” (Qur’an 42:38) and “and consult them in matters” (Qur’an 3:159)—the legitimacy of customary consultation in politics and political jurisprudence is established. Shura thus plays a crucial role both in the formation and continuation of governance, exerting significant influence during the stage of political stability and continuity. Accordingly, through an examination of the classifications of shura, the aforementioned evidences, and the proof of rational practice (sirat al-‘uqala’), obligatory shura is shown to apply to public affairs of society, including political matters, issues of war and peace, international treaties, and administrative and economic affairs. The importance of this concept is such that, according to some jurists and scholars, shura and consultation constitute one of the most essential mechanisms for controlling political power. Among prominent jurists who emphasize shura and customary consultation is Mohaqqiq Na’ini, who derives the obligation of consultation in all political affairs and the foundation of political matters upon collective consultation from the verses “and consult them in matters” and “their affairs are conducted through consultation among them.” Consequently, the domain of consultation is identified as “the affairs of the people,” encompassing matters related to governance implementation and political arenas.