CUSTOM AS A SOURCE OF LAW IN ISLAM

Author(s): Tahir Mahmood

Source: Journal of the Indian Law Institute , JANUARY-JUNE 1965, Vol. 7, No. 1/2
(JANUARY-JUNE 1965), pp. 102-106
Published by: Indian Law Institute

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 CUSTOM AS A SOURCE OF LAW IN ISLAM

Islamic jurisprudence is fundamentally based on the divine c

of law. The immutable commands of Allah form the basis of all rules
of lawful conduct in Muslim legal theory. Accordingly, the sources of
Islamic law have been confined by its doctors to the scripture (Koran),
the traditions (sunna), the juristic consensus ( ijma ), and the analogy
(qiyas). Custom has never been rated by them as a formal or indepen-
dent source of law. But consideration has always been shown to the
force of general usage, insofar as it did not contravene the basic
tenets of Islam. It has rather been regarded meritorious not to let the
textual laws come into conflict with the actual practice. Muslim lawyers
have, therefore, based many of their rules, sometimes with acknowledg-
ment, on the prevailing usage of their age. And in a limited way,
custom has found also formal recognition with certain jurists, although
under many restrictions.
We may begin with the law-giver's own outlook about the validity
of general usage. Islam was not supposed to bring with it an altogether
novel code of law. The Prophet did not, therefore, abrogate the whole
of the pre-Islamic customary law of Arabia. In Macdonald's words,
he "did not draw up any Twelve Tables or Ten Commandments or
codes or digests - the conception of an exhaustive code being foreign to
his thought."1 No innovations were introduced by him in the customary
laws so long as they were reasonable and not opposed to his funda-
mental principles.2 This policy was given formal recognition in a
famous tradition : " Virtues of the pre-Islamic period are to be retained in
Islam"* The concept of sunnat-ut-taqreer 4 bears testimony to the fact
that the Prophet left intact many reasonable customs obtaining in his
time. Various branches of Muslim law are replete with the instances
where the legal rules have been based by the Prophet himself on the
contemporary customs. Thus, about the Muslim law of partnership,
the author of the Hedaya tells us that the transaction is lawful "because
the Prophet found the people practising it and confirmed it therein."5
Schacht has discovered that the Prophet had accepted a major portion
of the commercial customs of Mecca and the customary agricultural law

1. Macdonald, Development of Muslim Theology , Jurisprudence , and Constitutional

Theory 89 (1903).
2. Shah Waliullah, HujjatuV lah-i-V Baligha 123 (1946).
3. Quoted from 3 Imam Ahmed, Musnad 425 (Urdu ed.).
4. One of the well-known classes of traditions, denoting something done in
the presence of the Prophet and not disapproved by him.
5. 5 Marghinani, Hedaya 377 (Hamilton trans. 1870) [emphasis added].

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 1965] CUSTOM IN ISLAM 103

of Madina.6 Another instance is found in the field of intestate succes-

sion. The new rules of inheritance were only superimposed upon the
prevailing customary rules, which were not totally abrogated.7
After the Prophet's demise the policy of retaining reasonable
customs was continued by the caliphs. They often incorporated in their
legal systems, not only the Arab usages, but also certain customary laws
of those countries which were absorbed in the then Muslim empire.
Thus, Umar, the second caliph, accepted in toto the Persian customs
relating to revenue and land tenure.8
When, in course of time, Islamic jurisprudence was developed on a
scientific basis, and came to be ascertained mainly through the founders
of the schools, custom could not be recognized iņ theory as an indepen-
dent source of law. Legal rules were generally based upon the accepted
quadruple pillars of legislation. However, in the domain of inter-
pretation of laws, a section of jurists recognized the efficacy of custom.
The Imam Abu Hanifa included custom among the various bases of his
principle of juristic equity ( istihsan ).9 His disciple, Qadi Abu Yusuf,
is reported to have said that custom had been the primary consideration
in this rule of Hanafi jurisprudence.10 The Imam Shaibani, another
celebrated jurist of the Hanafi school, laid down certain rules of inter-
pretation showing the jurisprudential worth of custom. Three of these
maxims run as follows :

(1) Evidence of custom is like that of the texts.11

(2) Usage is decisive when not prescribed otherwise in the texts.12
(3) What is general in theory can be particularized on the
strength of custom.13
The first of these maxims shows that, in the Hanafi school, law could be
based on custom where the texts were found silent or indifferent. And
the third maxim settles the rule that custom could delimit the appli-
cation of a general rule of law so as to oust its application from
particular objects.
Custom found a similar recognition in the Maliki School. The
Imam Malik included it among the various bases of his doctrine of public
interest ( masalihul mursala).u Moreover, he regarded the customary

6. Schacht, " Islamic Law," in Encyclopaedia of Social Sciences 345 (Hasting

cd. 1937).
7. Rights of the customary heirs were left intact, and only the quantum taken
by them was diminished in favour of the newly created Koranic heirs.
8. Hamidullah, Muslim Conduct of State 34 (1957).
9. Abdur Rahim, Muhammadan Jurisprudence 26 (191 1).
10. Quoted from 5 Ibn Humam, FathuH Qadeer 283 (1336 H).
11. 1 Shaibani, Seyaru 'l Kabir 194.
12. Id. at 198.
13. 2 Shaibani, id. at 296.
14. Fitzgerald, Nature and Sources of the Sharia-Law in the Middle East 109
(1954).

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 104 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 7 ; 102

conduct of the people of Madina as sufficient consensus of opin

to be a source of law in the absence of an explicit text.15 His follow
the Imam Shatebi, held that local usage not opposed to the spiri
Islam could guide the application of law and could form the basis o
local variations in the rules dealing with non-religious matters.16
As the Imam Shafei rejected the principles of public interest an
juristic equity, custom could find no recognition in the Shafei sch
in its begininng. But the Imam Ghezali, a well-known jurist of
school, later on advocated a similar principle called "search for
better " (istislah). Having based on the said principle, Ghezali l
down his famous maxim : "What is customary is as if stipulated."17
The Hanbali school did not recognize in theory any legal val
of custom. But its founder, the Imam Ahmed Hanbal, admitted
that he had based many of his rules on the customs of the people of
Hejaz.18 And a later jurist of his school, the Imam Tufi, listed general
usage (urf) in his scheme of the nineteen sources of law.19
The role allowed to custom by the aforesaid doctors of Islamic
jurisprudence was later on more explicitly stated by many of their
followers. Thus, the author of the Hedaya described custom as the
"arbiter of analogy," and held that it had the rank of juristic consensus
in the absence of an express text.20 Ibn Khallaf has written that
custom not opposed to the texts should be attended to with care by the
interpreters of law.21 And Allama Jassas, while commenting on the
word maroof in his exegesis of the Koran , found in it the ground for
the validity of interpretation of law, based on custom.22
The later lawyers, however, qualified the role of custom with many
negative as well as positive conditions. First, the concept of legal
custom was confined to those practices which were predominantly
followed in a particular country. The English law requires a custom to
be confined to a limited locality. But the Muslim lawyers required just
the reverse. Thus, Ibn Abedin held that effect was to be given to
custom only where it was of regular occurrence or when universally
prevailing Secondly, reasonableness was considered to be an essential
condition embedded in the very concept of custom. And lastly, custom
was said to be void ab initio if it contravened any express text of the
Koran or the sunna. 24

15. Mahmasani, Philosophy of Jurisprudence in Islam 132 (1946).

16. Imam Shatebi, Muwafaqat 113 (1942).
17. Quoted from 1 Amir Ali, Personal Laws of the Mohammadans 151 (4th ed.
1912).
18. 3 Ibn Hanbal, Musnad 118, 125 (Urdu ed.).
19. Al-Masalah fi Tashri al-Islami (1936).
20. 6 Marghinani, Hedaya 177-78 (1870).
21. Ibn Khallaf, Masadir al-Tashri al-Islami 124 (1948).
22. 3 Allama Jassas, Ahkam-ul-Koran 38 (1347 H).
23. Ibn Abedin, Al-Ashbah Wa al-Nazair 37 (1946).
24. 4 Ghezali, Kitab-ul-Istisqa 297.

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1965] CUSTOM IN ISLAM 105

Within the juristic frontiers

employed by the Muslim lawye
It often formed the real substr
ing such contribution of custom
Abedin said, "Many decisions a
has been taken as an establish
of custom is in fact based on
legal authority was same as th
method.26 The differences am
partly based on the change of u
to time. Some specific instance
rules on the basis of a change i
right of redemption ; and the per
tial evidence in a criminal inves
Thus the legal theory of Islam
custom as an independent or f
the sunni Islam28 accepted the a
juristic standards, for the purp
legal rules dealing with worl
contribution of custom in the
growth was, however, the in
rightly held that the authority
law has been vested by Muslim
( mujtahid ).29 No custom, wha
fore, became law in any judicial
or recognized. Thus, custom c
the option of the jurist. But
opponent of law, as it did have
of custom in Islamic law seems
given to local usage by Austin in
However, many legal matters
decided in each country accordi
in regard to compensation for civ
mother, etc., the Koran enjoi
25. Ibn Abedin, op . cit . supra note 2
26. Abdur Rahim, op. cit. supra not
27. Ibn Abedin, NashruH Urf folio
28. Zaidi, Ismaili and the Jafri sch
have given any formal recognition
source of law. See Fyzee, Shei Legal T
29. Santillana, " Law and Society "
30. Under Hindu legal system cu
textual laws of the dharmashastras
Council in the case of Collector of Mad
31. Consistent with his doctrine of
not to be taken as a command with
Allen, Law in the Making 87.

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106 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 7 : 102

followed.32 In the law of wakf the rules for succession to the office
mutawalli are to be deduced from the local usage, if the settlor has n
provided for it.33 In the domain of family law also custom has
decisive position in certain matters. For instance, in establishing the
equality in calling and profession among the spouses, custom is treate
as the guide.34 The rules regarding the articles given to wife by her
husband as part of her maintenance, are also governed by the loc
custom.35

In recent years, while Muslim law has been partially codified in

some countries, the rules regarding the legal validity of custom have
been given legislative recognition. Thus, the Majalla, the Ottoman Code
of law, took over the Hanafi maxims pertaining to the validity of local
usage. It laid down the rule that "custom is authoritative and can be
invoked as a ground to be a legal precept."36 Two other similar maxims
found in the Majalla are :
(1) "Public usage is conclusive and action must be taken in
accordance therewith."

(2) "A matter sanctioned by custom is as if stipulated in a contract."38

The Syrian Code of 1953 gave similar expression to some of the said
rules and recognized the decisive position of custom in certain
rated cases.39

The views of the old doctors of Muslim jurisprudence as given

expression to in the maxims of Shaibani, Shatebi, Ghezali and Tufi,40
and as adopted in the aforesaid codes of Islamic law, make it clear that
a legal custom can form an extraneous source of Muslim law in two
ways. First, in the application of the secular rules of law, it may form
the basis of local variations. And secondly, where the texts are silent
and also no authentic rule has been deduced therefrom, custom can be
passed into a binding rule of law.
Tahir Mahmood*

32. 2 Allama Jassas, Ahkam-ul-Koran 404.

33. 1 Baillie, Digest of Moohammadan Law 562 (1879).
34. 2 Ibn Abedin, Durr-ul-Mukhtar 348; Abdur Rahman, Institutes of Mussulman
Law 39 (1907).
35. Minhaj-ut-Talibeen 64 (Howard trans. 1940).
36. Article 36.
37. Article 37.
38. Article 43.
39. Syrian Code, 1953, §§ 39, 40, 45.
40. Hanafi, Maliki, Shafei and Hanbali schools respectively.
* LL.M., Lecturer in Law, Muslim University, Aligarh.

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