The place of custom in Islamic law

The relationship between law and custom has been one of the enduring questions that jurists in different legal cultures had to contend with. Not only has custom often been recognized as one of the main sources of law, but it has also shaped the definition of law itself. ¹ In the Western legal tradition, discussions over the customary foundations of law, or the pre-law phase, can be traced to the distinction in Greek and Roman sources between written and unwritten origins of the law, where the latter were usually associated with the notion of custom. Subsequently, custom continued to play an important role in European legal history, both in the civil law tradition and to a greater extent in the common law tradition. ² Similar discussions on the role of custom in legal systems can also be found in other legal traditions such as those of India, China and Africa. ³ In order to determine the exact legal status of custom, these discussions often address important questions such as its relationship with other sources, as well as requisite conditions for legal validation or recognition of certain customs. Central to these discussions is the fundamental difference between mere habit of a particular group in a particular culture and a binding custom, as well as the necessary conditions required for the transformation of the former into the latter. ⁴ Ultimately, despite modern misgivings about custom and its role in the rational process of law making, some legal philosophers argue that custom remains the most important source for solving practical problems since ‘moral principles, written laws, legal doctrines and philosophical writing are all articulations of pre-existing customs’. ⁵ In the Islamic legal tradition, the relationship between Shariʿah and custom is quite distinctive due to several epistemological and hermeneutical considerations. On the one hand, the divine textual foundations of Shariʿah imply a fixed legal structure, but its claim to continued universal validity not only necessitated adaptation of preceding conventions but also require ongoing accommodation of changing customs, on the other. Questions pertaining to the place and function of custom in Islamic law are not limited to the classical tradition, reflecting the primacy of Shariʿah as the main source of legal norms within a Muslim polity, but they remain as important and relevant in the modern period also, although in a completely changed legal landscape. The development of the concept of custom in the Islamic legal tradition illustrates juristic engagement with the important notions of continuity and change, and is, therefore, important for understanding the process of Islamic legal construction. The task 287of adapting and accommodating common customs illustrates one of the main tensions that jurists, both past and present, have to grapple with; namely, the need to enhance the flexibility of law without compromising its distinctive character and normative foundations. This chapter seeks to highlight the role of custom in Islamic legal discourses during the pre-modern period and also to explore later developments in the modern context.