Custom in the legal tradition: classifications, authority and applications

Juristic discussions over the concept of custom reveal the numerous classifications that the jurists developed on the basis of different considerations. For example, with regard to its source, custom is divided into two main types: customs initiated by Shari 'ah and customs initiated by people.

Shari 'ah-based customs refer to specific meanings and usages of particular terms in the idiom of Shari 'ah such as the specific meanings of words such as prayer (salat) and fasting (sawm). When these words are used within the context of juristic discussions, they refer to their idiomatic meaning within Shari ah rather than their literal meanings indicating supplication and abstention respectively. Human customs, on the other hand, denote customs originating in people’s actions and common practices. While Shari 'ah-based customs are mainly linguistic in nature due to their articulation within the foundational sources, human customs include, in addition to linguistic conventions, also practice-based customs. This, in turn, marks one of the important binary classifications of custom on the basis of its originating cause: verbal or linguistic custom ( 'Urf qawlt) and practical custom ('Urf 'amalt or fi'fi). In general, linguists recognize custom as one of the main sources for the definition of meaning and signification of terms. For example, while the term dabba can refer to any animal, it is conventionally used to refer either to a horse or a donkey. Similarly, while the Qur’an uses the word lahm (meat) to refer to fish, its conventional usage does not include this type of meat.²⁰ The role that this linguistic dimension of custom plays in the construction of legal rules has been recognized almost unanimously as one of the main manifestations of custom in the Islamic legal tradition. Linguistic conventions are further divided into two main types: singular (e.g.

dabba and lahm) and compound (e.g. idiomatic expressions and phrases). For example, when the Qur’an speaks about prohibition of female relatives, what is meant is prohibition of marrying one’s female relatives.²¹ Practical customs, on the other hand, refer to common practices, which would include both people’s habitual practices in their private or social lives on the one hand and common practices involved in their civil transactions, on the other. Examples of the former include what people eat, how they dress, and how they communicate with each other. Similarly, many etiquettes in the area of social ethics are defined by common (expected) customs such as proper treatment of guests, neighbors and friends. Famous examples in the area of transactions that are often cited in juristic discussions involve definition of unspecified variables such as: length of stay at public bathhouses; ancillary rights associated with the sale of certain types of property; average amounts; and means of measurement.²² Both linguistic and practical customs are divided, in terms of their scope and degree of circulation, into two main types: general and specific. The former includes universal customs that are prevalent among Muslims or throughout Muslim lands. The latter includes customs that are specific to certain regions, communities or professional groups.

In addition to these main classifications of custom, further classifications were also devised on the basis of other considerations such as their compatibility with Shari 'ah and continuity. With regard to their compatibility with Shari 'ah, customs are divided into three main categories: compatible, incompatible and unstated. Compatible customs include pre-Islamic Arabian customs that were approved by the Prophet and were subsequently incorporated within the Islamic normative system, such as placing responsibility for blood money on one’s agnatic relatives. Incompatible customs include the ones that were condemned by the Prophet and were therefore rejected, such as certain types of marriage, female infanticide, drinking wine and dealing in usury.

Unstated customs include the ones that are not clearly specified in Shari 'ah and that require close analysis in light of the fundamental principles of Shari 'ah as well as its relationship to other approved and disapproved customs. Abu Is haq al-Shatibi (d. 790/1388) divides this type into two categories. The first are fixed habits ( 'dddt), which he links to basic human instincts and natural propensities such as one’s need to eat, drink and communicate. Such fixed habits are implied in the various rulings of Shari ah. The second are changing habits, which include a wide range of customs associated with particular cultural contexts (e.g. dress code), geographical conditions (e.g. age of maturity) or economic standards (e.g. type of currency).²³

Clearly these various classifications of custom bear a significant degree of overlap but they demonstrate the extent to which custom has been embedded in the wide spectrum of both legal theory and substantive law. Most significantly these classifications are often invoked within the context of discussions addressing the various applications of custom in the legal tradition. Surveys of this subject often indicate several important applications of custom, which include: its use as a subsidiary legal source; its use in the articulation and construction of general legal rules; and its use as a type of circumstantial evidence.²⁴

The perception of custom as a subsidiary legal source signifies one of the most famous roles that custom is assumed to play. This qualified designation of custom as a legal source is meant to rule out its use as an absolute or independent legal source, which would run counter to the role of Shari ah as the supreme legal source, by means of its embodiment of the divine will. In support of this view of Shari 'ah, Muslim jurists often make the argument that people develop both good and bad customs, as can be demonstrated throughout the course of human history. Within an Islamic normative system, Shari 'ah should serve as the ultimate judge to determine agreeable and disagreeable customs.

This role of custom is illustrated by numerous examples, such as istisna ', in which custom is in essence supported by another source such as juristic consensus. Subsequently, some jurists also used the original justification of consensus, such as people’s need, in order to make similar applications of custom. In other words, people resort to certain practices due to particular needs, which over time turn into common practices or customs. This approach was particularly pursued in cases of contested consensus. This original justification may also include other general considerations such as necessity, removal of hardship or harm, or original permissibility. This function of custom as a subsidiary legal source is substantiated by numerous references in legal manuals and is also captured in legal maxims such as: ‘What is established by custom is in essence established by a shard evidence’.²⁵

Another important application of custom is its role in the construction of particular rulings in light of general legal principles. Although most of the examples demonstrating this function of 'Urf relate to financial transactions (e.g. the concept of the average), many other examples are also found in the various legal sections. An illustrative example from the penal system is determination of a suitable type of discretionary punishment for a particular legal infraction. Islamic criminal law specifies three types of punishments: stipulated crimes and their punishments (hudud); retaliation (qisas); and discretionary punishments (ta'zir). Unlike the first two types, discretionary punishments are not clearly delineated. They are left to be determined by experts in light of contemporary circumstances in a manner that serves the intended goals of the penal system (e.g. deterrence).²⁶

Reference to custom as a type of circumstantial evidence represents another important usage of the concept. Such usage is meant to obviate the need to provide explicit articulation for certain presumed details.

For example, the food presented by a host to a guest involves an implicit permission to eat it even without further explicit reference. This contextual evidence is based on common customs pertaining to etiquettes of hospitality. Similarly, this usage of custom is invoked to define customary standards governing various legal rules across the wide spectrum of the Islamic legal corpus. For example, in the area of transactions it is used within the context of the sale or lease of certain types of property, either separately or in combination with other associated items.²⁷

The domain of legal implementation has been one of the important contexts illustrating the role of custom in the continued process of legal construction, as demonstrated in the fatwa and judgeship literature. To begin with, knowledge of and familiarity with custom has been one of the important qualifications of a competent mufti or judge. Moreover, it has been emphasized that custom-based rules ought to change once the underlying customs change.²⁸ Within the heritage of the various legal schools, numerous examples demonstrate how later jurists modified certain legal rules to keep up with changing socio-historical circumstances.²⁹ For example, one of the conditions for the validity of instituting a charitable endowment is that it must be done on a permanent basis (tabid), which is usually taken to apply to immovable properties. Later Hanafi jurists, however, adopted the opinion attributed to Abu Yusuf and al-Shaybani allowing the endowment of movable items, including cash waqf, on the basis of common custom.³⁰ Similarly, determination of the units of measurement for the six items subject to the prohibited usury (gold, silver, wheat, barley, dates and salt) is based on Prophetic reports indicating that while gold and silver are to be measured by weight, the other items are to be measured by volume. The majority ofjurists held, on the basis of this Prophetic report, that these units of measurement should remain indefinitely as the standard units of measurement.

Later Hanafi jurists, however, adopted the opinion of Abu Yusuf that such units of measurement should be determined on the basis of the common custom. Abu Yusuf argued that reference to weight and volume in the Prophetic report was based on the common custom in Medina at the time of the Prophet. In other words, the report merely cited these standard units and did not necessarily mean to fix them indefinitely. Accordingly, if these units were to change, due to changing circumstances, the rulings associated with them have to change as well.³¹

Eventually, in light of the above-mentioned classifications and applications, custom emerged as one of the five main legal maxims underlying and guiding the various Shari' ah- based rulings, often rendered as: custom is to be used as a basis for judgement (al-'ada muhak- kama). This principal maxim inspired a number of derivative maxims, which cover its main legal applications within the legal corpus of the various legal schools.³² The example of the Ottoman Majalla (Mecelle) and its codification of a Hanafi-based civil law demonstrates the gradual consolidation of custom within the legal maxims genre. The work opens with a list of 100 maxims governing the various rulings that it contains, out of which ten highlight the role of custom. In addition to the main maxim mentioned above, other relevant maxims include: widespread usage is authoritative and must be acknowledged; what is customarily impossible is impossible in reality; change of rules in different time periods cannot be denied; real or literal meaning of linguistic expressions can be superseded by customary indications; custom is acknowledged only if it is recurrent or prevalent; reliance should be on what is common, not what is rare; what is known by custom is equal to what is known by (contractual) stipulation; what is known among merchants is equal to explicit stipulations; and (implicit) determination by custom is equal to explicit determination.³³

Turning to the question of the authority (hujjiyya) of custom, it can be explored in two main contexts. The first investigates the textual evidence invoked to support and justify its legitimacy (as discussed above with regard to associated terms under conceptualization of custom). The second investigates its relationship to other legal sources, especially in cases of conflict. Starting with textual sources, the jurists make a distinction between a concurrent or contemporaneous custom and a subsequent one. With regard to the former, the jurists are in agreement that specific textual indications cannot be trumped by custom. The only exception made for this scenario is the case of a text whose ruling is justified by custom, as is the case with the opinion of Abu Yusuf on the criteria for the determination of measurement units. They are also in agreement on the authority of linguistic conventions to specify general textual indications. They, however, disagreed on the authority of practical customs to specify general textual indications. While the majority ofjurists argue that practical customs cannot specify the indication of general texts, the Hanafis and Malikis reportedly allowed this possibility, especially if the custom in question is a general rather than a specific one.³⁴ On the other hand, if the custom in question is subsequent to the foundational text, the jurists are in agreement that the former cannot trump the latter in cases of conflict.³⁵ Beyond the domain of textual sources, cases of conflict between custom and other types of legal sources are usually discussed under the general theme of juristic preference (istihsan), especially in light of the fact that custom is considered one of the important grounds on the basis of which an argument for juristic preference is made.

On the basis of the various scattered discussions on custom in the pre-modern legal tradition of the various legal schools, modern scholars deduced several conditions for the recognition of a given custom. Most sources emphasize that a valid custom is one that is: recurrent (muttarid) and widely circulated (ghalib); not incompatible with a clear Shari ah-based text; well established at the time of its invocation; and not contradicted by an explicit (contractual) statement. In addition to these four main conditions, some sources also indicate that a custom must be general or universal, not specific.³⁶ Disagreement on this condition is traced back to a debate among pre-modern jurists, particularly within the Hanafi and the Shafi'i schools.³⁷

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Source: Abou El Fadl Khaled, Ahmad Ahmad Atif, Hassan Said Fares (Eds.). Routledge Handbook of Islamic Law. Routledge,2019. — 466 p.. 2019

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Custom in the legal tradition: classifications, authority and applications

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