The Princeton Encyclopedia of Islamic Political Thought

custom

Custom served an important role as a social norm in pre-Islamic Arab society and thereafter in Muslim society, as it did in many ancient societies. Its application encompassed a wide variety of areas: economics, family, and ritual. In Islamic legal theory, formulated during the course of the eighth and ninth centuries, custom was recognized as a formal, valid source of law, as is the case in other legal systems, including Jewish and Roman law. Prominent questions concerning custom in the context of Islamic legal theory are the extent to which it conformed to the formal sources of Muslim law, the sources’ proximity to a divine origin, and the means used to prove its existence.

In the Islamic legal tradition, sources of law are graded according to their degree of certainty and the weight given to the proofs of their divine origin. On the highest level stand the Qur’an and the sunna (oral reports concerning the words and deeds of the Prophet), officially recognized sources for scriptural proof texts (naṣṣ) with the status of divine revelation. On the next level are ijmā‘ (consensus) and qiyās (legal analogy), which do not have the same status as the written sources, being of a more technical nature and connected as they are with the exegesis of the jurists, yet they are still held to reflect divine will in determining human behavior. According to this theoretical model, custom lies outside the realm of divine revelation; recognition of custom (‘urf) as an integral part of the legal system appears to contradict one of the mainstays of Islamic legal theory: the idea that law is of direct divine origin. Indeed, classical Islamic juridical theory does not recognize custom as a legal source, since it depended to a great extent on human social interaction, even though it was always ubiquitous in practice and deeply entrenched in all levels of society. Custom thus belongs to a number of supplemental sources of law or bases for legal interpretation that have been disputed and irregularly incorporated into Islamic jurisprudence, such as istiḥsān (juristic preference), istiṣlāḥ (consideration of a human interest), shar‘ man qablanā (the law of previous monotheistic religions), or istiṣḥāb al-ḥāl (presumed continuance of status quo ante). The decidedly textualist approach of Islamic jurisprudence militated against the uniform or easy acceptance of custom.

The jurists’ exclusion of custom from the theoretical hermeneutics of Islamic law nevertheless did not affect its power in actuality. Custom was held to include both general custom (‘urf ‘āmm) and local custom (‘urf khāṣṣ), as well as customary definitions of words (‘urf qawlī) and customary practices (‘urf fi‘lī). Classical theoretical objections notwithstanding, custom was recognized by many jurists as important for the interpretation of specific terms, verbal agreements, and types and stipulations of transactions in particular local or social contexts. Customary rulings became extremely widespread, striking roots in various areas of the law and thereby threatening the integrity of theory. This development was not lost on legal thinkers who attempted to bridge the gap between theory and reality, where custom was widespread. These attempts, particularly those of the Hanafi legal scholars, are reflected in the juristic literature reflecting the efforts, at least from the early Middle Ages, to grant custom some sort of official status in the scale of legal sources. Striking testimony to this appears in the criticism regarding the definition of the sunna directed at the famous early figure Abu Yusuf (d. 798–99), a disciple of Abu Hanifa, by Sarakhsi (d. 1097) in his work al-Mabsut (The extensive treatise on law). With regard to the disputed permissibility of using weights and measures in commercial transactions, Abu Yusuf thought that in every case custom must be taken into consideration on its own merits. In other words, in a statement attributed to Abu Yusuf, “One should take custom into consideration in all things. For if it was [sold] by measure at a particular time or by weight at another time, [each particular situation] was in consideration of custom and not in consideration of a scriptural proof text from the Prophet.” He thus holds that custom remains valid even when it contradicts a scriptural proof text—a position likewise affirmed by the Hanafi jurist Marghinani (d. 1192) in his work al-Hidaya (The guidance). Another testimony to the hermeneutical autonomy of custom is that of the judge Husayn al-Marwazi (d. 1070), who considered custom to be a fifth source of law along with the other four recognized legal sources. He wrote, “Resort to custom is one of the five foundations on which the law (fiqh) is built.”

In accordance with modern legal theories, two elements underlie the rejection of custom, though they are not explicitly stated anywhere in Islamic legal literature. From the legal historical perspective, scholars recognize that the existence of custom per se is not sufficient reason for its integration into and enforcement as a legal norm. From the analytical perspective, the jurists and institutions such as courts lack the authority to grant certain customs the status of validity. In classical Islamic legal theory, these two components exist alongside each other. The negation of the jurists’ authority to recognize custom is indeed consistent with Islamic legal theory, which greatly restricts juristic involvement in the development of the law, limiting their authority to the role of interpreting or implementing the written sources—particularly of those laws incorporated in the Qur’an and the sunna.

The rejection of custom on the theoretical level, notwithstanding its acceptance in reality, was dealt with in four ways. First, during the formative period of Islamic law, the possibility still existed of incorporating custom into the sunna, which was in the process of crystallization into standard collections in the ninth and tenth centuries. At times, these incorporated legal norms, including customs, reflected current developments. Second, the widespread identification of custom with consensus (ijmā‘), especially but not exclusively in Hanafi literature, at times obscured the boundary between these overlapping categories to such an extent that there was often no major difference between them. Third, custom was often seen as a dispositive condition whose legal validity was based on its acceptance by agreement of the parties involved. This view is found primarily in the literature of the Hanafi school and finds expression in the following formula and similar statements made in other contexts: “That which is known by custom is like that which is known by stipulation.” Fourth, custom was often accepted in a substantive manner but by means of principles such as maṣlaḥa (public welfare) or ḍarūra (necessity or dire need), allowing rulings to be made in accordance with custom without recognizing it as an autonomous source. The latter three types belong to a later stage in legal history; they were adopted when the method of accepting custom by means of hadith reports had effectively closed with the canonization of the sunna and its organization into standard collections.

The absorption of custom by these means, which fit harmoniously into Islamic legal theory, worked as long as they existed as real options. Once these means were closed, however—particularly once the collections of the sunna had taken shape and when, later, it was no longer possible to identify custom with ijmā‘—outstanding Hanafi legal theorists effected a dramatic hermeneutic turn with regard to custom. During the postclassical period, from the 16th century on, they came to present custom as an autonomous, formal legal source incorporated into the theoretical framework of Islamic jurisprudence (uṣūl al-fiqh). Thus, for example, Ibn Nujaym (d. 1563) admits the ubiquity of custom and its power to determine legal rules, writing, “Know that the consideration of custom and usage reappears frequently in law in many cases, so much so that the jurists have transformed it into a legal source, and they say in works devoted to jurisprudence, in the chapter on the abandonment of literal meaning: ‘The literal meaning is abandoned on the basis of an indicator found through inferential methods of inquiry and in custom.’” Here, he was in effect following Abu Yusuf, the first jurist who attempted to view custom as an autonomous source. The same view was later taken up by Ibn ‘Abidin (d. 1836), author of a brief work titled Nashr al-‘Arf fi Bina’ Ba‘d al-Ahkam ‘ala al-‘Urf (The wafting of perfume, on some legal rulings based on custom), in which he states that custom has the power to overrule a scriptural text, thus establishing custom as a formal legal source.

At the end of this process, custom assumed a place even in the 19th-century Ottoman Mecelle, which recognized it in practice as a formal source. Even though the Mecelle was not a legal source, it reflected the change that had taken place in the status of custom in Islamic law, effectively putting an end to the explicit and implicit debates that had taken place among legal scholars regarding the status of custom as a source in Islamic legal hermeneutics.