On the Development of Custom as a Source of Law in Islamic Law: Al-rujūʿu ilā al-ʿurfi aḥadu

al-qawāʿidi al-khamsi allatī yatabannā ʿalayhā al-fiqhu

Author(s): Gideon Libson
Source: Islamic Law and Society, Vol. 4, No. 2 (1997), pp. 131-155
Published by: BRILL
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ON THE DEVELOPMENTOF CUSTOMAS A SOURCEOF LAW
IN ISLAMICLAW:
ild
Al-ruji'u al-'urfiahadu al-qawd'idial-khamsiallat yatabannd
'alayhdal-fiqhu*
GIDEONLIBSON
(TheHebrewUniversity,
Jerusalem)

Abstract
AlthoughclassicalIslamiclegal theorydid not recognizecustomas a sourceof
law, Muslimjurists-in particular,the Hanafis-discussed the statusof custom
alreadyin the pre-classicalperiod.Customwas incorporated into Islamiclaw in a
varietyof ways:by includingcertainpracticesin the categoryof sunnaor ijmd';by
appealingto judicialpreference(istihsan)andto secondarysourcesof law, suchas
fatwds;andby usinglegal fictions(hiyal). Becausethesemethodswerenot always
adequateto deal with the questionsthatspecificpracticespresentedto thejurists,
therewas an increasingtendencyamonglaterHanafijuriststo recogizecustomas a
sourceof law.

1. TheStatusof Custom

A LEGALSYSTEMIS NOTA RIGIDENTITY,but rather fluctuates and

evolves with changing circumstances and times. One may say that to
the extent that law influences and shapes society, it is itself influenced
by and adapts to social practice. This understanding of the nature and
function of law was common among Muslim jurists, as reflected in the
following statement by the fifth/eleventh-centuy scholar al-Sam'ani:
...Fiqh is an ongoing science continuingwith the passage of centuries
and changingwith the change of circumstancesand conditionsof men,
withoutend or interruption.1
* I. Goldziher, The Zahiris-Their Doctrine and Their History (Leiden, 1971),
188, attributesthis quoteto Ahmadb. Muhammad al-Qastallani(d. 923/1517),in
the name of Qadi al-Husayn,probablyal-Marwazial-Shafi'i (d. 462/1070);
Goldziherpresumablywas referringto al-Qastallani's Irshadal-SdarfiSharhal-
Bukhari,althoughI havebeenunableto locatethe citationin the standardeditions
detaileddiscussionof
of this text.In this essay, I do not presenta comprehensive,
customin Islamiclaw, butonly outlinethe majorstagesin its development. I hope
to dealwith customin Islamiclaw in greaterlengthin a futurepublication.I wish
to expressmy appreciationto David Powersfor his generousassistancein the
preparation of this essay, to HaggaiBen Shammai,who was alwaysavailablefor
consultation; andto BaberJohansen,AharonLayishandthe anonymousreaderfor
theirhelpfulcomments.
1 As cited
by G. Makdisi, Religion, Law and Learning in Classical Islam

? Brill, Leiden, 1997 IslamicLawandSociety4,2

132 GIDEONLIBSON

One factor that provides an impetus for change is the emergence of

customs-social, economic and other practices that develop among
people at the "grass roots" level and force the normative system to
adapt itself, whether by admitting these customary practices into the
legal framework or by rejecting them as unworthy of incorporation.
Almost every legal system finds it necessary to deal with customs
extraneous to its normative framework, whether archaic customs that
predate the development of the system itself or new customs that
emerge after its consolidation. This process is particularly difficult in a
system of religious law. Whereas Jewish law solved the problem by
recognizing custom (Hebrew: minhag) as a formal source of law and
as a basis for the creation of new legal norms,2 Islamic law chose not
to grant formal status to custom,3 which it called 'urfor 'ada,4 despite

(Aldershot, 1991), II, 36. See also W. Hallaq, Law and Legal Theory in Classical
and Medieval Islam (Aldershot, 1994), XII 197.
2 On custom in Jewish Law see M. Elon, Jewish Law. History, Sources,
Principles (Philadelphia& Jerusalem, 1994), vol. II, 880-944; and Gideon Libson,
Geonic Customand its Relationship to Islamic Law (forthcoming).
3 Muslim
jurists since the sixteenth century have written extensively on the
subject, as have moder scholars. Most worthy of mention among Muslim jurists
are Zayn al-'Abidin Ibn Nujaym (d. 970/1563), AI-Ashbdh wa'l-Nazt'ir (Cairo,
1378/1968), who devotes a chapter to custom; and a similarly entitled work by
Abui al-Fadl al-Suyiti al-Khudayri (d. 911/1505), Al-Ashbdh wa'l-Nazd'ir fi
Qawd'id wa-Furu' al-Shafi'iyah (Cairo, 1242/1826). See also Muhammad Amin
Ibn 'Abidin (d. 1252/1836), "Al-'Urf," in Majmi'at Rasd'il Ibn 'Abidin (Beirut,
1978). Of the modem scholars, we mention the comprehensive work of Ahmad
Fahmi Abf Sinnah, Al-'Urf wa'l-'ddah fi Ra'yi'l-Fuqahd' (Cairo, 1947); Sayyid
Salih 'Awad, Athar al-'Urffi'l-Tashrr al-lsldml (Cairo [1981]); Samir 'Aliyah,
Qadd' wa'l-'Urffi'l-lsldm: dirdsah muqdrinah (Beirut, 1986); and 'Abdul-'Aziz
Khayyat, Nazariyyat al-'Urf (Amman, 1977). On custom in the Miliki school, see
'Umar b. 'Abd al-Karim Jidi, Al-'Urf wa'l-'Amal fi'l-Madhhab al-Mciliki wa-
mafhumuhumdladd 'ulamd' al-Maghrib (Rabat, 1982); on the Maliki attitude to
custom, see R. Brunschvig, "Polmiques m6di6vales autour du rite de Malik," in
Etudes d'lslamologie (Paris, 1976), 65-101, esp. 97-100. On custom in the Hanafi
school, see B. Johansen,"Coutumeslocales et coutumes universelles aux sources de
juridiques en droit MusulmanHanafite,"Annales Islamologiques, xxvii (1993), 29-
35. Many recent introductionsto thefiqh literaturedevote a chapterto custom. See,
for example, Shawqi 'Abdu al-Sahi, Al-Madhkal li-Dirdsat al-Fiqh al-Islami
(Cairo, 1410/1989), 290-97; Mustafa Ahmad Zarqa',Al-Madkhalal-Fiqhi al-'Amm,
3 vols. (n.p., 1967), II, 733 ff.; M. H. Kamali, Principles of Islamic Jurisprudence
(Cambridge, 1991), 283-96. See also F. M. Nabban, Abhdth Isldmiyya (Beirut,
1986), 110-18; Subhi Mahmasani, Falsafat al-Tashrr' f al-lsldm, transl. F. J.
Ziadeh (Leiden, 1961), 130-36; M. Othman, "'Urf as a Source of Islamic Law,"
Islamic Studies, xx (1981), 343-55. Cf., in addition, N. Coulson, "Muslim Custom
and Case-Law," in Die Welt des Islams, vi (1959), 13-24; J. Schacht, An Intro-
duction to Islamic Law (Oxford 1964), 62 and see also bibliography, 234; F.J.
Ziadeh, "'Urf and Law in Islam," in The World of Islam. Studies in Honour of P.
K. Hitti (London, 1960), 60-68; B. S. Hakim, "The Role of 'Urf in Shaping the
Traditional Islamic City," in Islam and Public Law, ed. C. Mallat (London, 1993),
141-55, esp. notes on p. 142; essays by A. K. Reinhart, M. Gaborieau and H.
 THE DEVELOPMENTOF CUSTOM AS A SOURCE 133

the historical links between the two legal systems at the level of both
sources of law and positive law. I shall be concernedin this essay with
the questionof the treatmentof customin Islamiclaw.5
The following accountof the changing status of custom in Islamic
law focuses primarilyon the Hanafi school, the closest in time and
place to the BabylonianGeonim,the heads of the Jewish academiesin
Iraq from the seventh to eleventh centuries C.E.6 Hanafi doctrine
grantscustom a more prominentplace than the doctrine of the other
three Sunni law schools, which also resortedto custom, but to a far
more limited extent. One finds almost no referencesto custom in the
works of al-Shafi'i, althoughsuch referencesappearfrequentlyin later
Shafi'i doctrinallawbooks.7The Malikisrarelyreferto custom,perhaps
Touati in Annales Islamologiques, xxvii (1993) (in addition to Johansen's contribu-
tion to that volume, cited above). The entry on 'Urf in the first edition of Encyclo-
paedia of Islam is short and does not reflect the importanceof the subject and the
challenge it presentedto the classical jurists.
4 I am inclined to the view that Hanafi jurists, at least in the pre-classical and
classical periods (on this periodization, see below), did not distinguish between
these two terms, using both in the same sense. 'Ali b. Muhammadal-Jurjani,Kitdb
al-Ta'rifdt (Beirut, 1978), 104, offers the following definition: 'Al-'urfumd 'staqar-
rat al-nufiis bi-shahddati al-'uqiil wa-talaqqathd al-tabd'i' bi-qubil wa-huwa
hujjatun aydan lakinnahu asra' ild al-fahm wa-kadhd al-'dda wa-hiya md
'stamarra al-nas 'aid hukmial-'uqul wa-'ddu ilayhi marratan ba'd ukhrd;see the
discussion in Abi Sinnah,Al-'Urf wa'l-'Adah, 13; 'Abdul-'Aziz Khayyat, Nazariy-
yat al-'Urf (Amman, 1977), 26-31. Cp. B. Johansen, "Casuistry:Between Legal
Concept and Social Praxis," Islamic Law and Society, ii (1995), 135-56, esp. 152,
where the authordefines 'dda as "normativecustom" and 'urf as "social practice."
See also idem, The Islamic Law of Land Tax and Rent (New York, 1988), 54,
where the author translates 'urfun zdhirun as "recognized custom" and ta'dmul
(also used in Hanafi sources to denote a custom, see below) as "business practice."
See furtherHallaq, Law and Legal Theory, III 343, according to whom al-Ghazali
defines 'urf [= the normative behavior and practices of Muslims], as a component
of 'dda, which is God's "custom" in running the world (that is, natural law); cf.
ibid., VIII 443, citing a similar definition in the name of 'Abd al-Jabbar (d.
415/1025) in his Mughni.
5 On the
relationship between these two legal systems in connection with
custom, see my forthcomingbook mentionedin note 2 above.
6 On the Babylonian Geonim and the Geonic period, see G. Libson, "Halakhah
and Law in the Period of the Geonim," in An Introduction to the History and
Sources of Jewish Law, ed. N.S. Hecht, B.S. Jackson, S.M. Passamaneck, D.
Piattelli, and A.M. Rabello (Oxford: ClarendonPress, 1996), pp. 197-242.
7 See, for example, Muhammadb. Idris al-Shafi'i (d. 204/820), Kitdb al-Umm
(Cairo, 1961), vol. 3, 33, 81, who rejects the possibility of using custom in relation
to interest (because it was forbiddenby the Prophet);cf. ibid., 23, 95; and similarly
idem, Kitdb al-Risdla fi Usuilal-Fiqh, ed. Ahmad Muhammad Shakir (n.p., n.d.),
525, 526). See also idem, Umm, vol. 3, 34, 37 for recognition of custom in relation
to responsibility for damages; ibid., 42 in relation to the cultivation of wasteland;
ibid., vol. 7, 114, in connection with salam; ibid., 146, in connection with con-
tracts and torts. See al-Shafi'i's statement (ibid., vol. 3, 37) that some of his
associates favored allowing people to adhere to custom. Later Shafi'i doctrine was
somewhat more cognizant of custom: see, for example, Abu Ishaq IbrWhim b. 'Ali
134 GIDEONLIBSON

because Miliki law was founded on the praxis of Medina and most
Medinese customs were grantedthe statusof sunna, therebyobviating
the need to appeal to custom. Traces of a similarphenomenonmay be
detectedin the Hanafi literature.8And I found no referencesto custom
in the legal literatureof the Hanbalischool duringthe pre-classicaland
classical periods.9
Classical Islamic law recognizesfour principalsources:the Qur'an,
sunna (tradition),qiyCs(analogy) and ijmd' (consensus).The first two
are literarysources of differinglegal status. The Qur'an,the recordof
the revelationsreceived by Muhammadbetween 610 and 632 C.E., is
said to have enjoyed the prestigeof a writtensource alreadyduringthe
Prophet's lifetime. The sunna consists of oral traditionsthat subse-
quentlywere committedto writing and compiled in collections during
the ninth century-with the work of Bukhari(d. 265/870), Muslim (d.
261/875), Abu Da'ud (d. 275/888) and others, and the tenth centuries,
with the work of jurists such as Ibn Khuzayma (d. 311/923), Ibn
Hibban (d. 354/965) and al-Daraqutni(d. 385/995); a few collections
date to the firsthalf of the eleventhcentury(e.g., the Sunanal-Kubraof
al-Bayhaqi [d. 458/1066]). The thirdand fourth sources are technical

b. Yisuf al-Shirazi (475/1083), Kitdb al-Tanblhft al-Fiqh 'ali Madhhab al-lmdm

al-Shdfi'i(Cairo,1951), vol. 1, 35, 304, 308, 340, 342, 350, 352, 361, 366, 396,
398, 424, 447; vol. 2, 161, 256. See also referencesto al-Mawardi below.
8 For the customsof Madina,see, for example,Malikb. Anas (d. 179/795),
Al-Muwatta',ed. Fu'ad'Abdal-Baqi(Cairo,1951),636, 653, 661, 667, 670, 704.
On customas a supplementary sourcefor a contract,see ibid., 681, 691-92, 696,
698, 701; Sahnin b. Sa'id b. Habibal-Tanikhi(d. 240/854),Al-Mudawwanaal-
Kubra(Beirut,1966),vol. 2, 196, 197;vol. 3, 2, 126, 131, etc. See also the inter-
esting discussionof customby the Malikijuristal-Qarafi(684/1285)in his Kitab
al-lhkdm fi tamyiz al-fatdwd 'an al-ahkdm wa-tasarrufdt al-qddi wa'l-Imdm (1st
ed., Cairo, 1938), pp. 67-68, and see also p. 16. The distinctstatusof customin
the Miliki schoolrequiresa specialdiscussionthatis beyondthe scopeof thepres-
ent essay. On customin the M3likischoolsee, for the moment,Jidi,Al-'Urfwa'l-
'Amal, and Brunschvig,"Pol6miquesm6di6vales,"97-100; see also the sources
cited by N. Calder,Studies in Early MuslimJurisprudence(Oxford, 1993), 53, 183,
198. On 'amal in the pre-classicalperiodand its relationshipto hadlth, see N.
Coulson,"Doctrineand Practicein IslamicLaw: One Aspect of the Problem,"
Bulletin of the School of Oriental and African Studies, xviii (1956), 211-26, esp.
225; J. Schacht, The Origins of MuhammadanJurisprudence (Oxford, 1950), 62.
'AbdAllah'UmarFariq,"Milik'sConceptof "Amal'in theLightof MalikiLegal
Theory,"Ph.D. dissertation,The Universityof Chicago,1978. On the practiceof
the courtsin thisschoolandits attitudeto customin NorthAfricain a laterperiod,
see H. Toledano, Judicial Practice and Family Law in Morocco (Colorado, 1981),
10-47,esp. 17 n. 28.
9 I consultedthe followingtwo Hanbalilegal texts: 'Umarb. al-Husaynal-
Khiraqi, Mukhtasaral-Khiraqi 'aid madhhab al-lmdm Ahmad b. Hanbal (Damas-
cus, 1964);and Muwaffaqal-DinIbn Qudama(d. 619/1223),al-Mughni(Cairo,
1367/1947).
 THE DEVELOPMENTOF CUSTOMAS A SOURCE 135

legal tools: qiyas is similar to Jewish methods of halakhic exegesis and

hermeneutics, while ijmd' allows a legal ruling to be confirmed or
establishedon the basis of a consensus of legal scholarsor, according
to some, of the entireMuslimworld.
Customis not one of the recognizedsourcesof law in Islam. At first
sight one might suggest a simple explanation for this phenomenon.
Custom reflects human behavior, while Muslim jurists conceived of
their legal system as superhuman,revealed once and for all by God;
hence any human interventionin the legal process, particularlyfor
purposesof revision,is ipsofacto illegitimate.
This explanationis inadequate.The refusal of Islamic law to grant
custom status as a formal source is surprisingon three counts. First,
custom plays a vital role in almost every legal system as a source for
the development of legal practice, a bridge between legal theory and
practice,as illustrated,e.g., by the versatilityof minhagin Jewish law.
How could jurists mitigate the tension between theory and practice
withoutappealingto custom?Even the wide use of legal fiction (hlla) in
Islamic law could not fill the legal gap created by the rejection of
custom as a formal source of law and solve the problems that prac-
tice-particularly economicpractice-posed for thejurist.10Second,the

10 On the use of
legal stratagems to harmonize practice with theory, particu-
larly in the area of economics, see Coulson, "Muslim Custom and Case-Law," 17.
On the use of deeds and legal formularies (shurut) for the same purpose, see W.
Hallaq, "Model Shurat Works and the Dialectic of Doctrine and Practice,"Islamic
Law and Society, ii (1995), 109. The legitimate use of legal fictions in Islamic law
and its considerable currency had some influence on a similar tendency in Jewish
law duringthe Geonic period;I shall discuss this in detail elsewhere. Otherways to
address the need for adjustmentsand changes within the legal system included (1)
introducingnew interpretationsof the literary sources, using ijtihdd; and (2) wrest-
ling with new problems brought about by social developments by means of iftd',
with a heavy reliance on the technique of qiyds. Hanafi jurists attempted to use
these techniques to incorporateinnovationsinto the legal literaturewithout explicit-
ly using any term denoting "custom."Closely related to this approachwas the use
of legal casuistry. See R. Brunschvig, "Considerationssociologiques sur le droit
Musulman ancien," Studia Islamica, iii (1955), 61-73; Hallaq, in Law and Legal
Theory, XII 181-83; idem, "FromFatwds to Furu': Growth and Change in Islamic
Substantive Law," Islamic Law and Society, iii (1995), 27-65, esp. 65. On the
introduction of new principles and concepts in legal literature as means of inter-
preting sharra and adapting it to social needs, see Johansen,Islamic Law of Land
Tax, 124-25; idem, "Coutumeslocales et coutumes universelles," esp. 32. On the
use of casuistry to legitimize various commercial practices see idem, "Casuistry,"
150-51; on the relationship between the theory of casuistry and custom see ibid.,
152, 155 ("In many cases casuistry is not an abstract thought and speculation but
an adjustmentof the law to practices of importantsocial and professional groups"),
and cf. the summary ibid., 156. On bridging the gap between theory and practice
through legal rulings, see Hallaq, "From Fatwds to Furt'," 50. Whereas Jewish
law developed judicial rules for determiningthe law (kelalei pesika) in the case of
136 GIDEONLIBSON

practice of the Muslim community was an influential factor in shaping

legal norms and contributed to the development of Islamic law. That
this was the case may be discerned from references in the classical
literature to "popular custom" (amr al-nis) and to practice as a final
authority. It is surprising, therefore, that this phenomenon found no
expression in normative terms by legal recognition of 'urf.ll Third,
assuming, as held by some scholars, that Roman law exerted an influ-
ence on Islamic law12 and, further, that Jewish and Islamic law had a
mutual influence upon one another, one is struck by the great difference
between Roman and Jewish law-both of which explicitly recognize
custom as a source of law, and Islamic law, which does not.13
Although custom, in theory, is not recognized as a source of law, in
practice Muslim jurists-in particular Hanafis and even more so
Malikis-refer to it with great frequency. This discrepancy between
theory and practice caused difficulties, echoes of which can be detected
in the classical literature. Thus, there is evidence of controversy among
Muslim jurists on the status of custom, and some jurists even attempted
to accord custom a formal standing as a source of law. The view that
prevailed in this controversy, at least in the pre-classical period, that is,
prior to the end of the ninth century, was the refusal to recognize
custom as a formal source.14 From the early classical period until

differences of opinion between two authorities,such techniqueswere not sufficiently

sophisticated in Islamic law in the classical period. None of the aforementioned
solutions to the problem was adequate to deal with the power of custom, and,
consequently, there was an increasing tendency in the post-classical period to view
custom as an independentsource.
11 On al-Shaybani and Sahnun see Calder, Studies, 53 n. 27; 183, 198-99. For
custom in MOliki law see Jidi, Al-'Urf wa'l-'Amal. On the use of 'amal in the
Maliki school see above, n. 8.
12 For the possible influence of Roman law on Islamic law see P. Crone,
Roman, Provincial and Islamic Law (Cambridge,1987), 1-17.
13 For the position of custom in Roman law, where it is called mos or mores,
see C. K. Allen, Law in the Making (7th ed., Cambridge, 1964), 80; H. F. Jolowicz
(ed.), Lectures on Jurisprudence (London, 1963), 197; H. F. Jolowicz & B.
Nicholas, Historical Introduction to the Study of Roman Law (Cambridge, 1972),
101; A. Schiller, "Custom in Classical Roman Law," Virginia Law Review, xxiv
(1938), 268-82, esp. 269. Note: The position ascribed to the classical jurist Julian,
as cited in Justinian's Digest, concerning the force of custom (see D. Even,
"Desuetude,"Diss., Hebrew University [Jerusalem,1976; Hebrew], 14 and 74 n. 1;
Schiller, ibid.), is reminiscent of the definition of ijma' in Islam. However, the
definitions of consensus and custom are so similar that the boundarybetween them
is sometimes vague (see below). On this observation see Even, ibid., 81; Allen,
ibid.; Jolowicz & Nicholas, ibid., 354; Lord Lloyd of Hampstead,Introduction to
Jurisprudence(London, 1972), 572.
14 See, for example, Fakhr al-Din al-Razi (d. 606/1210), Mafdtih al-Ghayb
(Teheran, n.d.), vol. 3, 361; and cf. J. Schacht, "Usul," Shorter Ecyclopaedia of
Islam (Leiden, 1953), 615.
 THEDEVELOPMENT
OFCUSTOMAS A SOURCE 137

(approximately) the sixteenth century, attempts were made to incorpor-

ate practical custom in the law without granting it formal recognition.15
This tendency, which first manifested itself in the position of Abf
Yusuf in his dispute with Abu Hanifa (see below), is explicitly referred
to in a statement attributed to Qadi al-Husayn, probably al-Marwazi
al-Shffi'i (d. 462/1070), by A1mad b. Muhammad al-Qastallni (d.
923/1517):
wa-qad qala al-Qddi Husayn: al-ruji'u ild al-'urfi ahadu al-qawd'idi
al-khamsiallatiyatabanni 'alayhi al-fiqhu.
[QadiHusaynhas stated:resortto customis one of the five foundations
on which the law (fiqh) is built]16

Similarly, a contemporary of al-Marwazi, al-Sarakhsi (d. 490/1097)-

who regarded custom as a material source-also refers to it as one of
the legal sources that should guide the judge in his decisions, in effect
acknowledging custom as a source of law at the magistrate's disposal.
Al-Sarakhsi explicitly refers to 'urf on the same level as the Qur'an,
sunna, and qiyds:
Illi idhd kdna mujtahidan... an yakana qad hawd 'ilma'l-kitbi...
wa-'ilma'l-sunnati...wa-an yakunamusibanfi'l-qiydsi'climan bi-'urfi
al-nasi.
[...butif a mujtahid(= a personwith the intellectualcapacityto form his
own judgmenton questionsconcerningthe sharra) is familiarwith the
Qur'an... and with the sunna, and if he is an expert in qiyas and
knowledgablewith regardto the customof the people...]17

15 Throughout thisessay, I use ChafikChehata'speriodization of Islamiclaw:

(1) pre-classical= untilthe end of the ninthcentury;(2) classical= the tenthto the
twelfthcenturies;(3) post-classical= fromthe twelfthcenturyon. See Ch. Chehata,
Etudesde droit musulman,2 vols. (Paris,1971),vol. 1, 18 ff. This periodization
was adoptedby Y. Meron,"TheDevelopmentof LegalThoughtin HanafiTexts,"
StudiaIslamica,xxx (1969), 79-93, and subsequentlyby Johansen,The Islamic
Lawon landTax, 1-3;see also idem,"Casuistry," 138.Thisperiodization does not
always accuratelyreflect developmentsin Islamic law; some legal institutions
developedmoreor less continuously, withouta noticeabledivisionintophases.My
theoryof the developmentof customin the classicalperiodparallelsJohansen's
accountof casuistry(which,as mentionedabove,was also usedto reconciletheory
andsocialpractice)in thecontemporary period.
16 Quotedin Goldziher,TheZdhiris,188.We havetranslated qd'idatunherein
its literalsenseof "foundation" in thiscontext,however,the sense
(or:"principle");
is almost that of a legal source, as it appearsin conjunctionwith the four
recognizedsourcesof Islamiclaw.
17 Abf BakrMuhammad b. AhmadShamsal-Dinal-Sarakhsi(d. 490/1097),
Kitab al-Mabsut (Cairo, 1324-31/1906-13),vol. 16, 62. Cf. the accountof a
mujtahid'squalificationsby Abi Husaynal-Basri(d. 436/1044),KitdbAl-Mu'ta-
madfi Usul al-Fiqh (Damascus,1964), vol. 2, 929; see Hallaq,Law and Legal
Theory,V 5.
138 GIDEONLIBSON

A study of Muslim legal literature will show that Islamic law re-
solved the tension between theory and practice by what was in essence
a defacto recognition of the role of custom. One of the most important
devices adopted was the acceptance of custom as a material source.
That is to say, Muslim jurists granted de facto recognition to certain
customs by resorting to other, "legitimate," sources of law. A particu-
larly important principle in this context is istihsdn, that is, juridical or
personal preference, which became a common means for assimilating
custom and usage, although some scholars introduced innovations into
the legal system by direct appeal to istihsan, with no reference whatever
to custom or usage.18 Another principle used for the same purpose was
darara or necessity. This principle, too, was quite common in the Mus-
lim legal literature, as in al-Sarakhsi's statement, wa'l-haraj madfa'
shar'an [it is permitted by law to reject a legal difficulty (in order to rule
leniently)].19 These principles were frequently invoked by the jurists in
their discussions of commercial law.
In addition to recognizing it as a material source, there were other
ways to integrate custom into the substance of Islamic law. These
consisted in attempts (1) to identify custom with sunna; (2) to identify it
with ijmt'; or (3) to treat it as if it were a written stipulation. The
attempt to identify custom with sunna, that is, the model behavior of
Muhammad as preserved in narrative reports or hadlth, is important
and deserves special emphasis. The idea seems natural, insofar as the
origins of sunna lie in custom and practice-mainly the practices of
Muhammad himself, so that sunna is largely a product of custom. So
long as custom could be included in the sunna, Islamic law could ac-
commodate itself to theory and there was no break in the development
of law, to which custom made a major contribution.20But certain tradi-
tions drew heavily on later customs, which legal authorities ascribed to
the time of the Prophet-indeed, sometimes attributingthe innovation in
question to the Prophet himself-in order to accord them greater legiti-
macy and to incorporate the custom into the accepted legal framework.
(Such new"sunna" played a similar role in the substantiation of legal

18 See, for example,Abf al-Hasan'Ali b. Muhammadb. Habibal-Mawardi

(d. 450/1058), Adab al-Qddl (2nd ed.; Baghdad1391/1971),vol. 1, 652, who
treatsistihsdnas an independent
source.
19 Al-Sarakhsi,Mabstt, vol. 15, 160;for detailssee Zaynal-'AbidinIbrihim
b. Nujaym(d. 970/1563),Al-Ashbdhwa'l-Nazd'ir'ala madhhabAbi Hanlfahal-
Nu'mdn(Cairo,1968),36.
20 See I. Goldziher,"ThePrinciplesof Law in Islam,"in The Historian's
Historyof the World,ed. H. S. Williams,25 vols. (London,1908), vol. 8, 294-
304, esp. 294.
 THE DEVELOPMENTOF CUSTOM AS A SOURCE 139

rules and principlesother than custom.21)Some confirmationfor this

view comes from the fact that Islamic legal texts make almost no
referenceto custom in its materialform, that is, to its associationwith
istihsdn,so long as the literaryredactionof hadithcollectionswas still
in progress.During that time, new customs and practicescould "find
refuge"in the hadith-literatureand therewas no special need to grant
them formal, independentrecognition, that is, to accept custom as a
source of law.22 In the same way, attempts were made to identify
customwith ijmda' (see below, at nts. 28 and49).
Once the sunnahad been finalized,with the completionof the major
standardcollections, beginningin the ninthcentury,it could no longer
provide a haven for custom, which began to appearas a materialfac-
tor,woven into the fabricof law throughotherlegal sources.Only then,
when the main redactionof the hadith-collectionshad come to an end,
do we begin to find the legal literaturereferringfrequentlyto customas
a materialsource, mainly by appealto the principleof judicial prefer-
ence (istihsdn), but also throughthe use of other sources of law. This
stage, too, reflects an attemptto adhereto theorywithoutrejectingthe
acceptanceof custom.23
21 One
meaning of the term sunna is "custom,"and indeed in Judeo-Arabicthe
word sunna is sometimes used in that sense. See M. Ben-Sasson, "Fragmentsfrom
Saadya's Sefer ha-Edut veha-Shetarot"(Heb.), Shenaton ha-Mishpatha-'Ivri, xi-xii
(1984-86), 221; N. Allony, "Two Responsa of R. Saadya Gaon" (Heb.), in Studies
in Medieval Philology and Literature. Collected Papers, vol. 1: Sa'adia's Works
(Jerusalem, 1986), 364; M. A. Friedman, "GovernmentInterventionin Qayrawan
in the Divorce of a Betrothed Girl: A New Fragment from a Large Collection of
Gaonic Responsa [with Notes on OtherFragments]"(Heb.), Michael, v (1978), 215-
42, esp. 229; S. D. Goitein, "Geniza Documents from the Mamluk Period [Review
of E. Ashtor, History of the Jews in Egypt and Syria under MamlukRule]" (Heb.),
Tarbiz, xli (1972), 59-81, esp. 79; J. I. Bloomberg, "Arabic Legal Terms in
Maimonides,"Dissertation, Yale University, 1980, 16.
22 The authenticityof the sunna and the concomitant problemshave been dealt
with extensively by Goldziher and Schacht, and, more recently, Juynboll, Powers
and Crone. See J. Schacht, The Origins of Muhammadan Jurisprudence, 80; I.
Goldziher, Muslim Studies (Leiden, 1971), 182; G. H. A. Juynboll, Muslim Tradi-
tion (Cambridge, 1983), 1-7; D. Powers, Studies in Qur'dnand Hadith (Berkeley-
Los Angeles-London, 1986), 1-8; P. Crone, Roman Provincial and Islamic Law
(Cambridge, 1987). On custom disguised as sunna see I. Goldziher,Introductionto
Islamic Theology and Law (Princeton, 1981), 36; P. Crone & M. Cook, Hagarism
(Cambridge, 1977), 38, and ibid. on the status of custom in general.
23 The two other ways of absorbingcustom will be considered below. In many
cases in the classical literature,however, particularlyamong the Hanafis, appeal is
made to custom independently of other principles. In connection with salam
(immediate payment for propertyto be acquiredin the future), see 'Ali b. Abi Bakr
al-Marghinani(d. 592/1196), Hiddya Sharh Biddyat al-Mubtadi, in Sharh Fath al-
Qadir 'ald al-Hiddya by Muhammadb. 'Abd al-Wahid al-Siwasi, known as Ibn
al-Humam (d. 861/1457) (Egypt, 1356/1938), vol. 6, 241; cf. A. L. Udovitch,
"Islamic Law and the Social Context of Exchange in the Medieval Middle East,"
140 GIDEONLIBSON

As time passed, Islamic law went throughvarious changes and the

status of custom was altered. The exigencies of practice made it
increasingly necessary to recognize custom as a formal source of law
and this tendencyultimatelyprevailed.By the late post-classicalperiod,
custom had become a virtually independent source in Hanafi legal
thought. Ibn Nujaym (d. 970/1563), for example, asserts that the
frequentappealto customhad madeit an independentlegal source:
History and Anthropology, i (1985), 445-65, esp. 452, and al-Sarakhsi, Mabsut,
vol. 12, 125. In connection with nasi'a (delayed payment) see al-Sarakhsi, ibid.,
vol. 22, 38; vol. 23, 45, 125. In connection with murdbaha (fixed profit sale) see
al-Sarakhsi, ibid., vol. 13, 80; al-Marghinani,ibid., vol. 6, 125; 'Ala' al-Din Abf
Bakr b. Mas'fid al-Kasani (d. 587/1191), Kitdb al-Badd'i' al-$an'i' fi Tartib al-
Shard'i' (1st ed.; Cairo, 1327-28/1909-10), vol. 5, 223, who uses the expression
'urfu al-Muslimin wa-'ddatuhum hujjatun mutlaqatun [= and the custom of the
merchantsand their usage is absolute proof]. Regardingthe authorizationof legally
ineligible persons (slaves or minors) to incur debts and guardianship, see al-
Sarakhsi, ibid., vol. 19, 46; al-Kasani, ibid., vol. 5, 136; Abf al-Hasan 'Ali b.
Muhammadb. Habib al-Mawardi(d. 450/1058), Adab al-Qd.d (2nd ed.; Baghdad,
1391/1971), 375. On court proceduresand evidence, see al-Sarakhsi, ibid., vol. 16,
101; al-Mawardi, ibid., vol. 1, 73, 79, 97, 145; vol. 2, 56, 253. On juridical
authority, see idem, ibid., vol. 1, 154; al-Mawardi, ibid., 135, writes that the
whole of jurisprudence is based on custom; see also ibid., vol. 2, 392. On the
nomination of judges belonging to Ahl al-Kitdb, see ibid., vol. 1, 631, 633. On
endowed property, see al-Sarakhsi, ibid., vol. 12, 45: al-sahlh fihi anna md jard
al-'urf bayna al-ndsi bi'l-waqffihi min al-manquldtyajdzu bi-i'tibdri al-'urf [= the
correct (ruling) is that anything concerning which there is a custom among people
concerning a pious foundation of movables is valid and one proceeds according to
the custom]. On oaths see ibid., vol. 8, 133: wa'l- asahhu an yaqula al-imdn
mabniyyatun 'ald al-'urfi wa'l- ddati fa-mrdta'drafa al-nasu al-hilfa bihi yakun
yaminan wa-md lam yata'raf al-hilf bihi Id yakun yaminan [= The correct (ruling)
is that one says that oaths are based on custom and usage. What people are
accustomed to swear-that is an oath, and what they are not accustomed to swear
is not an oath]. On suretyship, see ibid., vol. 19, 173; Abu Ishaq Ibrahimb. 'Ali b.
Yisuf al-Shirazi (d. 475/1083), Kitdb al-Tanbihfi al-Fiqh (Cairo, 1371/1951), vol.
1, 342. On contracts, see Muhammadb. al-Hasan al-Tusi (d. 459/1067), Kitdb al-
Khildf f al-Fiqh (Qum, [1956?]), 9; al-Kasani, ibid., vol. 5, 167. On financial
relations between husband and wife, see al-Sarakhsi, ibid., vol. 3, 105; Sahnun,
Mudawwana, vol. 2, 196. On partnership(mudaraba), see al-Kasani, ibid., vol. 6,
87-88. On custom as a factual presumption,see al-Tusi, ibid., vol. 2, 220; Abf al-
Walid Muhammad b. Ahmad b. Muhammad b. Ahmad b. Rushd al-Qurtubi al-
Andalusi (d. 595/1198), Biddyat al-Mujtahid wa-Nihdyat al-Muqtasid (Beirut,
1988), vol. 2, 264. On custom determiningthe meaning of words, see al-Mawardi,
ibid., vol. 1, 292; al-Tisi, ibid., vol. 2, 445. On custom in the determination of
quantities, boundaries etc., see al-Mawardi, ibid., vol. 2, 612. For further Hanafi
sources see Abfi al-Layth Nasr b. Muhammadb. Ahmad b. Ibrahimal-Samarqandi
(d. 382/993), Fatdwd al-Nawdzil fi Fiqh al-Hanafi (Hyderabad, 1355/1936-37),
162, 170, 198, 280; Abi al-Husayn Ahmad b. Muhammad b. Ja'far b. al-
Hamdmnial-Baghdadi al-Qudfiri(d. 428/1036), Kitdb al-Mukhtasar (4th printing,
Maydani edition, Egypt, 1961), vol. 2, 39, 102; vol. 3, 111. As custom made its
appearance in different areas, it became common in the post-classical literatureto
distinguish between interpretive customs ('urf lafzi) and practical customs ('urf
'amall); see, for example, Ibn Nujaym, Ashbdh, 37. Linguistic customs are already
mentioned in the classical sources; see, for example al-Kasani, ibid., vol. 5, 133.
 THE DEVELOPMENTOF CUSTOM AS A SOURCE 141

wa-i'lam anna i'tibdra al-'adati wa'l-'urfi24yurja'u ilayhi fi'l-fiqhi fi

masd'ila kathiratinhattdja'alu dhdlika aslan fa-qldh fi'l-usuli fi bdbi
mr tutrakubihi al-haqlqatututrakual-haqlqatubi-dakllatial-istidldli
wa'l-'dtati.
[Know thatthe considerationof customand usage reappearsfrequently
in law in many cases, so much so that they [viz., the jurists] have
transformedit into a legal source,and they said in the usul literature,in
the chapteron the abandonmentof literal meaning:the literal meaning
is abandonedon the basis of an indicatorfound in inferentialmethods
of inquiry25and in custom.]26

Perhaps the first definition of custom is attributed to al-Ghazali, in

his Al-Mustasfd min 'Ilm al-Usul: "al-'urfu md 'staqarra fi al-nuftsi
min jihati al-'uquli wa-talaqqathu al-tibd'u al-salimatu bi'l-qubili"
[Custom is that which is established in a man's mind by virtue of logic
and the sound mind accepts it].27The last stage in the process of recog-
nizing custom as a formal source is marked by the Mejelle (promul-
gated as the Ottoman Civil Code in 1877), whose authors, following
the work of sixteenth-century legal scholars (Ibn Nujaym and others),
compiled the main rulings concerning custom as they found them in ten
articles, whose combined effect was probably to finalize the altered
status of custom in Islamic law. Moder Muslim scholars, relying on
quotations from thefiqh literature, treat custom as a full-fledged source
of law, on a level with the four recognized sources, essentially
legitimizing the approach that was rejected in the classical period.
The stages in the development of custom in Islamic law may be
summarized as follows:
1. Pre-classical and classical periods: incorporation of custom in
sunna, sometimes in hadiths whose authenticity is dubious and which
reflect later developments. Some jurists attempted to identify custom
with ijma', as the boundary between the two is vague.28
2. A transitional phase, perhaps concurrent in part with the first
stage, during which traces may be detected in the doctrinal lawbooks of

24 On the terms'urfand'ada, see above,n. 4.

25 Onthe termistidldlsee
26 IbnNujaym,al-Ashbdh, Hallaq,LawandLegalTheory,III,317, 346;II 296.
93. Similarstatementsmaybe foundin the works
of Ibn'Abidinandal-Qarafi;see Abf Sinnah,Al-'Urfwa'l-'Adah,26.
27
Althoughthismaximis quotedin the legal literaturein al-Ghazali'sname,I
havenotbeenableto locatethe source.Ona historical-not dogmatic-attitudeto
the sourcesof law, see 'All b. Ahmadb. Hazm(d. 456/1065),Ibtdlal-Qiyds,cited
in Goldziher,TheZahirls,190-203,thoughhe does not mentioncustom.See Abf
Sinnah,Al-'Urfwa'l- 'Adah,23; al-Sahi,Al-Madkhal,290-97.
28 Schacht,"Usul,"615, holdsthatthe discussionof this distinctionis purely
theoretical.
142 GIDEONLIBSON

disagreement regarding the status of custom and of demands to admit it

as a formal source. These demands were rejected.
3. The classical period: a tendency to interpret custom in the light of
other legal sources, such as istihsan, with the result that custom came to
be regarded as a material source. In contrast to the situation in the first
stage, however, no attempt was made to identify custom with another
source of law; it was only made dependent on another source.
4. From the eleventh century onwards, a common tendency, particu-
larly obvious in the work of al-Sarakhsi, was to give custom the force
of a written stipulation. This idea is reflected in the principle that
anything dictated by custom is equivalent to something dictated by a
written text-a principle found in classical and post-classical legal
literature (see below). In parallel, Hanafi jurists attempted to adopt
customs as part of thefiqh literature and to incorporate them smoothly
by such legal techniques as casuistry, as found particularly in thefatwd
literature.
5. The prevalent trend in the post-classical period, mainly from the
sixteenth century onwards, was to collect all the legal rulings relating to
custom. Essentially, this meant the recognition of custom as a formal
source of law, as stated explicitly by Ibn Nujaym. The trend continues
in legal works written in the modem period, as reflected, for example,
in the Mejelle, although some authorities have questioned the altered
status of custom in the Mejelle.29

2. Custom,nass (= Qur'dn+ sunna)30and ijmn'(consensus)

As mentioned, one way to avoid formal recognition of custom was to
identify it with the Prophet's sunna or with ijmd'. Such an identification
may be found in the classical literature in a variety of contexts. Two
examples must suffice here. The first illustrates the struggle to accord
custom formal status and its relationship to written texts (nass),
referring here not to the Qur'an but to Muhammad's sunna, which was
also considered a textual source.31 With regard to the question of

29 See Y. Meron,"TheMejelleTestedby its Application,"IsraelLawReview,

v (1970),203-15;idem,"IsCustoma Sourceof Lawin Israel?"IsraelLawReview,
ix (1974), 221-39; and cf. commentsby R. Gabizon,"Abolitionof the Mejelleh:
Customas a Sourceof Law"(Heb.),Mishpatimxiv (1985),325-66,328ff.
30 The term nass has a varietyof meanings.In our context it denotes the
Qur'dn and, in particular,the sunna. See Kamali, Principles of Islamic Jurispru-
dence,93: "Nassmeansa definitivetextorrulingof theQur'anor of the Sunnah."
31 Probablyafter the compilationof the Sunan collectionshad been com-
pleted-a processthattookplacemainlyin theninthcenturybutcontinuedintothe
eleventhcentury(e.g., al-Bayhaqi).
 THEDEVELOPMENT
OFCUSTOMAS A SOURCE 143

whether it is permitted to sell by weight and measure, al-Sarakhsi

makes the following statement in his al-Mabsat:
wa'l-aslu anna ma 'urifa kawnahu mikydlan 'aid 'ahdi rasuli Allah
salld Alldhu'alayhiwa-sallamafa-huwamikydlunabadanwa-in i'tdda
al-ndsu bay'ahu waznan wa-md 'urifa kawnahumawzinan ft dhdlika
al-waqti fa-huwa mawziununabadan wa-md lam yu'lam kayfa kdna
yu'tabarufihi 'urfu al-ndsi fi kulli mawdi'in in ta'drafiufihi al-kayla
wa'l-waznajamlanfa-huwa mikydlunwa-mawzununwa-'an Abl Yasuf
anna al-mu'tabarafijamii al-ashyd'i al-'urfu li-annahu innamdkdna
mikydlanfidhdlikaal-waqtiaw mawzinanfi dhdlikaal-waqti bi'i'tibdr
al-'urfi Id bi-nassin fihi min rasul Alldhi salld Alldhu 'alayhi wa-
sallama wa-ldkinna naqulu taqriru rasal Allah salld Alldhu 'alayhi
wa-sallamaiyydhum'aid md ta'trafiihufi dhilika al-shay'i bi-manzilati
al-nassi minhufa-ld yataghayyarbi'l-'urf li-anna al-'urfa ld yu'dridu
al-nassa.
[The principle [is as follows]. Whateverwas known [to be sold] by
measure [viz., capacity] in the time of the Prophet,may God's prayer
and peace be upon him, [shall be sold] by measure forever, even if
people [subsequently] become accustomed to selling it by weight.
Whatever was known [to be sold] by weight at that time [= the
Prophet's time] [shall be sold] by weight forever. With regard to
something of which it is not known how [it used to be sold], one
considersthe custom of the people in every place. If it is customaryto
sell it by measureandweight together,it [shall be sold] by measureand
by weight. Abfi Yusuf holds thatone takes custominto considerationin
everything.For if it was [sold] by measureat that time or by weight at
that time, [that situation] was in considerationof custom and not in
considerationof a text (nass) from the Prophet, may God's blessing
and peace be uponhim. We, however,hold thatthe confirmationby the
Prophet,may God's blessing and peace be upon him, of those things,
according to thatwhich was customaryfor that thing, has the status a
text (nass = sunna) and cannot be alteredby custom, because custom
cannotprevailover a nass.32
This passage reflects an interesting difference of opinion between
Abf Yusuf, one of the first Iraqi legal scholars and a leader of the
Hanafi school, and al-Sarakhsi, an eleventh-century pillar of that
school. The bone of contention was an important principle of Islamic
legal theory: the status of custom relative to sunna. Abii Yfsuf's view
admits two interpretations. On the one hand, he may be understood as
stating that, as the source of sunna is custom, any change in custom
should automatically validate the new custom. Such a principle does

32 Al-Sarakhsi,Mabsat,vol. 12, 142;cf. al-Tfsi,Khildf,vol. 2, 26; citedfrom

Hiddya,vol. 6, 151,andsee al-Marghinani's
al-Marghinani, comment(ibid).
144 GIDEONLIBSON

not constitute an essential modification in the status of sunna, but rather

an application of the very basis of sunna: as sunna and custom are
both based on common practice, any new practice, that is, any new
custom, prevails over an earlier sunna. On this view, a text (nass =
sunna) based on custom must yield to a new custom. Abi Yusuf is
thus inclined to elevate the status of custom and grants it, in a sense,
formal recognition.33 However, one might also say that Abf Yfsuf
does not consider custom from Muhammad's time as necessarily
constituting sunna, and accordingly no contradiction may arise between
custom and sunna (= nass). In that case, the disagreement would
concentrate on the question of whether or not a custom practiced in the
Prophet's day should be considered a sunna, not on whether custom
prevails over sunna.
The first interpretation of Abu Yusuf's view of custom would seem
to be supported by his position on the validity of pre-Islamic practices,
as reported in his name by al-Baladhuri.34 Abfi Yfisuf's view was
clearly explained by al-Marghinani:
wa-'an Abi Yisuf innahu ya'tabiru al-'urfa 'ali khildfi al-mansisi
'alayhi aydan li-anna al-nassa 'ald dhdilikali-makdnial-'ddatifa-kdnat
hiya al-manzurailayhdwa-qad tabaddalat.
[On the authorityof Abi Yisuf, who also takes into considerationa
custom that contradicts an explicit textual ruling, since the explicit
textual ruling is based on it due to the status of custom, and [people]
take it into considerationand it was replaced...]35
Unlike AbufYisuf, al-Sarakhsi held that custom cannot prevail over
a written text, even if the origin of the text lay in custom or practice.
33 Providedone assumesthatthe laws basedon customarefromMuhammad's
time. See Mejelle, arts. 39, 118. As an analogy, one might say that if a new
customhas the powerto abrogatean old one, it is legitimateto modifyart. 118 of
theMejelle,whichis basedon custom,despitethe statusof theMejelleas a codex
of laws.
34 See J. Schacht,An Introductionto IslamicLaw (Oxford,1964), 19: "Abf
Yusufheldthatif thereexistsin a countryan ancient,non-ArabsunnawhichIslam
has neitherchangednorabolished,andpeoplecomplainto the caliphthatit causes
themhardship,he is not entitledto changeit; butMalikandal-Shafi'iheldthathe
maychangeit even if it be ancient,becausehe oughtto prohibit(in similarcircum-
stances)any valid sunnawhichhas been introducedby a Muslim,let alonethose
introducedby unbelievers" Similarly,AbuYusufconsiders
(Schacht'stranslation).
custom on a level with writtensources in connectionwith conjugalfinancial
obligations;see al-Sarakhsi,Mabsat, vol. 3, 105. For Abu Yisuf's attitudeto
custom,in contrastto thatof AbuHanifa,see al-Tfisi,Khildf,vol. 2, 213.
35 Hiddya,vol. 6, 157. See also the commentaries(ibid.),especiallythatof Ibn
Humam(p. 158) on the page to the text there,andIbn 'Abidin,Majma'dtRasd'il,
119. Compareanotherinstancein al-Mawardi,Adabal-Qddi,vol. 2, 207, in con-
nectionwithrightsof accessbetweentwo partnersafterthedivisionof theproperty.
 THEDEVELOPMENT
OFCUSTOMAS A SOURCE 145

According to al-Sarakhsi,Muhammad'ssanction grants a custom the

status of nass, so that anothercustom cannot change it.36This clearly
implies that the recognitionof a custom that does not conflict with a
written text presents no difficulty. The view just enunciatedmay be
derived from the views of early Hanafi scholars, such as Abi Hanifa,
al-Shaybaniand al-Quduri.It was aptly formulatedby al-Qudfri:Wa-
md lam yanussa 'alayhi fa-huwa mahmulun 'ala 'ddati al-ndsi [Any-
thing concerning which there is no [explicit written] text is treated
according to people's practice].If we have correctlyinterpretedAbu
Yusuf's view, this implies that when a custom contradictsa nass, the
lattermustprevail.
Abf Yisuf's positionwas rejectedin the classicalfiqh literaturein
favor of the opposingview: nass prevailsover custom-and it was this
latter view that colored much of the treatmentof custom by Hanafi
jurists. Al-Marghinani states: li-anna al-nassa aqwd min al-'urfi wa'l-
aqwd la yutrak bi'l-adnd [= ...because an explicit textual ruling is
strongerthan a custom and one does not abandonsomething stronger
in favor of somethingweaker].37The principleappearsseveral times in
al-Sarakhsi'sal-Mabsutin connectionwith differenttopics.38
Despite the rejectionof Abf Yusuf's view by otherHanafischolars,
al-Sarakhsi,like otherjurists,sometimesattemptsto legitimizeaccepted
practices. One means to that end was to subsume the custom in
questionunderthe headingof sunna.For example,al-Sarakhsi,dealing
with the institutionof istisnd'--immediatepaymentof a fee to a crafts-
man for an object not yet in existence at the time of payment, to be
delivered later-attempts to identify the acceptedpracticewith sunna
and ijmd':
idhd istasna'a al-rajul 'inda al-rajuli khaffaynaw qalansuwatan aw
tastan aw kawzanaw aniyyatanmin awdnl al-nuhdsfa'l-qiydsu an Id
yajuza dhdlikali-anna al-mustasna'ufihimabiun wa-huwama'dimun
wa-bay'u al-ma'dumi la yajuzu li-nahyihi salld Alldhu 'alayhi wa-
sallama 'an bay'i md laysa 'indaal-insdni thummahddhafi hukmibay'i
al-'ayn wa-law kCnamawjudanghayra mamlukinli-'dqidi lam yajuz
36 For disagreement on this subject,see also IbnNujaym,Al-Ashbah,40; Ibn
'Abidin,Majmu'dtRasa'il,116;IbnHumam,Hiddya,158.
37 Hiddya,vol. 6, 157.
38 In connectionwithabutters'rights:Mabsat,vol. 14, 136;in connectionwith
murabaha:ibid., vol. 13, 71; in connectionwith waqf:ibid., vol. 12, 45; in con-
nectionwith nakednessin the bathhouse:ibid., vol. 10, 146. It sometimesseems
that scholarspreferreda lenientinterpretation of nass in orderto bridgethe gap
betweenthe writtensourcesandcommonpractice;see, for example,ibid.,vol. 10,
147-48,in connectionwiththe buildingof bathhousesfor women-despite the fact
thatMuhammad forbadewomento go to the bathhouse; see also ibid., 155.
146 GIDEONLIBSON

bay'ahufa-ka-dhalikaidhdkdnama'dfmanbal awld wa-ldkinnanaqiul

nahnu taraknd al-qiydsa li-ta'dmuli al-ndsi fi dhdlika fa-innahum
ta'dmaluhumin ladun rasil Allah salld Allah 'alayhi wa-sallama ild
yawmindhddha min ghayri nakir munkarinwa-ta'dmulual-ndsi min
ghayri nakirinaslun min usulin kabirunli-qawlihi salld Alldh 'alayhi
wa-sallama md ra'dhu al-Muslimuna hasanan fa-huwa 'inda Allah
hasanun wa-qdla salld Alldh 'alayhi wa-sallama ld yajtami'u ummati
'ali dalala wa-huwa naziru dukhuli al-hammdmibi-ajrinfa-innahu
jd'izun li-ta'dmulial-ndsi wa-in kdna miqddrual-makathifihi wa-md
yusabbu min al-md'i majhulan wa-ka-dhdlika shurbi al-md'i min
saqqa'in bi-fals wa'l-hijdmabi-ajrinjd'izun li-ta'dmuli al-ndsi wa-in
lam yakunlahu miqddrun.
[If one personcommissionsfrom anotherpersona pair of shoes, head-
dress, washbasin,jug, or a copperbowl, on the basis of legal analogy,
this transactionis not permitted,becausethe object commissioned[from
the craftsman]is sold when it does not actually exist, and the sale of a
nonexistentobject is not permitted.Indeed, the Prophet, may God's
prayerand peace be upon him, forbadethe sale of any object thatis not
owned by the parties;and if this is the case with regardto the law for
the sale of an existing object thatis not owned by a partyto the contract
[the vendor]-its sale is forbidden-how much the more so when the
object does not exist at all. However, we hereby declare that we re-
nounce the applicationof the legal analogy,because people customarily
practicesuch [transactions],as they have been doing since the days of
the Prophet,may God's blessing and peace be uponhim, until our time,
without anyone having condemned [the practice]; and customary
practices of the people that have not been condemned constitute an
importantsource(asl), because of the words of the Prophet,may God's
blessing and peace be upon him: "Everythingthat Muslims regard as
good is good in God's eyes," and he asserted, may God's blessing and
peace be upon him, "My communitywill not agree on an error."The
matteris similarto enteringa bathhouseupon paymentof a fee, which
is permittedin considerationof people's practice,althoughthe duration
of a person's sojourn[in the bathhouse]and the quantityof water that
he will use are unknown.The same applies to a person who pays with
a coin to drinkfrom a water carrier,or pays a fee for bloodletting-
since this is people's custom,39althoughthe quantityis unknown.]40

39 We have translatedta'dmulial-nasi as
"people'scustom,"that is, in the
samesenseas 'urfand'ddah;butcp. Johansenas citedabove,n. 4.
40 Mabsut,Kitdbal-Buyu',vol. 12, 138;cf. al-Kasani,Badd'i',5:3; Udovitch,
"IslamicLaw and the Social Contextof Exchange,"455. On the same topic see
also al-Sarakhsi,ibid., vol. 15, 160. Some of the examplesare mentionedby al-
Mawardi(Adab al-Q.dl) in the categoryof istihsdn only. On istisnd', see now
NissreenHaram,"Use and Abuseof the Law: A Mufti'sResponse,"in Islamic
Legal Interpretation:Muftisand their Fatwas, ed. MuhammadKhalid Masud,
BrinkleyMessick,and David S. Powers(Cambridge:HarvardUniversityPress,
1996),72-86.
 THE DEVELOPMENTOF CUSTOM AS A SOURCE 147

The practice of istisna' contradicts an established principle of

Islamic law, which admitsonly transactionsinvolving real objects and
forbidsthe sale of an objectnot yet in existence at the time of the sale.
Al-Sarakhsi'ssimple analogyreasonsfrom an objectnot owned by the
vendor,whose sale was forbiddenby Muhammad(the asl = root of the
analogy), to an object that does not exist at all (thefar' = the conclu-
sion); accordingly,such a transactionis forbidden.However, from an
economic point of view the acceptedpracticehad to be sanctionedin
some way. Al-Sarakhsijustifies it, not by recognizingthe custom as a
source of law, but by deriving it from sunna, on the one hand, and
ijmd',on the other,tying the two sourcestogether.
Al-Sarakhsi's attemptto form a link with sunna is evident in the
passage "as they have been doing since the days of the Prophettill our
time, without anyone having condemnedthe practice;and transactions
among people that have not been condemnedconstitute an important
source." Al-Sarakhsi is appealing here to the classical definition of
sunna-which includes, among other things, everything that the
Prophetsaid, did and condonedby his silence-in orderto validatethe
custom without explicitly citing a hadlth to supportit.41This is essen-
tially a case of a sunna contradictinga legal analogy which itself is
based on a sunna. The jurist's conclusion is, therefore,that either the
sunna is not authentic,or the analogyis faulty.
The association with ijma' is implicit in the explanation that al-
Sarakhsicites in Muhammad'sname:"'Everythingthe Muslimsregard
as good is good in God's eyes,' and he asserted,'My communitywill
not agree on an error."' Thus al-Sarakhsi brings together the two
narrativereports that form the basis for ijmtd in order to justify the
customof istisnd' andrejectthe legal analogy.In so doing, he blursthe
distinctionbetween custom and consensus:if all Muslims adhereto a
certain practice, they are surely agreed upon it.42In general, there
appearsto be a connectionbetweenthe acceptanceof certainarguments
for the authenticityof a sunna,particularlythe criterionof tawatur, and
the justificationof ijmi'. The conceptof tawCtur,namely,that a haduth

41 This
may well be a genuine sunna (though unsupportedin the hadith litera-
ture); but it may also be an attempt to associate istisnra'with sunna in order to
legitimize the custom.
42 For a similar appeal to consensus of all Muslims, see Mabsut, vol. 15, 166.
In fact, this is an application of istihsdn, although al-Sarakhsi does not explicitly
say so. On consensus and its sources in Islamic law, see G. F. Hourani,"The Basis
of Authority of Consensus in Sunnite Islam," Studia Islamica, xix (1964), 13-60;
for istihsan as a source of law, see J. Makdisi, "Legal Logic and Equity in Islamic
Law," The AmericanJournal of ComparativeLaw, xxxiii (1985), 63-92.
148 GIDEONLIBSON

supporting a sunna is transmitted by so many different channels that

forgery is out of the question, is itself dependent, in a sense, on general
agreement; it ultimately provided a rationale for the consideration of
consensus as a source of law independently of the justification of the
sunna.43
The commissioning of a craftsman to perform a given task is the
prototype of all sale contracts based on immediate payment for an
object to be provided in the future; such contracts, known as salam, are
recognized by custom.44 In parallel with istisnd' and salam, al-Sarakhsi
follows earlier generations of jurists in admitting the validity of credit,
known as nasF'a-immediate delivery of goods or services against
future payment:
wa-ldkinnanaqula al-bay'u bi'l-nasiati min san'i al-tujjdri wa-huwa
aqrabu ild tahslli maqsuidirabbi al-mali wa-huwa al-ribhufa'l-ribhu
fi'l-ghdlibi innamdyuhsalubi'l-bay'ibi'l-nas'ati dina al-bay'i bi-naqdi
wa-li-anna tasllta al-muddribi 'ald al-mdli laysa bi-maq.udi rabbi
al-mali innamd maqsiuduhutahstlu al-ribhi bi-tariqi al-tijdrati...wa-
lahu an yubdi'a li-anna al-ibdd'a min 'ddati al-tujjdriwa-yahtdjual-
muddribilayhi li-tahsilial-ribhi.
[However, we are of the opinion that sale by credit is the practice of
merchants and it is the most efficient means to achieve the goal of
the investor,which is profit. In most cases one can achieve profit only
by selling on credit and not by selling for cash. This is because the
capitalist does not intend to give the partnercontrol of the money;
rather,his sole intention is to attain a profit by means of commerce.
And one may entrusthis goods to the care of another [usually to be
sold] because this type of commercial collaborationis the custom of
merchantsand a partner5needs it in orderto make profits.]46

43 On tawdtur,see Juynboll,MuslimTradition,212 n. 206, and ibid., 7, 96-

98; Hallaq,Law and Legal Theory,IV 9-24, esp. 10. On the connectionbetween
tawdturandconsensus,see ibid.,IV 23, esp. n. 54.
44 On the salamcontract,see Johansen,"Casuistry," 149.Istisnd'is essentially
a salam contract,despitesome differences;see Schacht,Introduction,155. On the
connectionbetweenthe hadithprohibiting the sale of as yet nonexistentgoodsand
thesalamcontract,see Kamali,Principlesof IslamicJurisprudence, 287-88.
45 Arabic:muddrib,denotinga specialkind of partner;see A. L. Udovitch,
Partnershipand Profitin MedievalIslam(Princeton,1970), 35, 174-75;and see
ibid., 101, 134, for the notionof bidd'aor ibdd'.
46 Mabsat,vol. 22, 38. On profitin thesalam contractsee ibid., vol. 12, 125.
Al-Sarakhsifollows al-Shaybani,whomhe quotesat the beginningof the above
passage,in contrastto IbnAbi Layla,who forbidssellingon credit;this disagree-
mentmay be an earlysign of the controversyover the recognitionof customas a
legitimatesourceof law. See also al-Sarakhsi,ibid., vol. 12, 45: wa-bi-hddhaal-
tariqjawwazndal-istibdd'fimafihd ta'dmulli-qawlihi'alayhial-salatwa'l-saldm
mdra'ahual-Muslimanhasanana-huwa'indaAllahhasanun[Andin thisway we
have also confirmedthe sale of goods,insofaras thatis commonpractice,because
 THEDEVELOPMENT
OFCUSTOMAS A SOURCE 149

Al-Sarakhsi similarly identifies custom and ijmd' in other areas of

law. He does so, for example, in connection with the custom of
endowing movables as waqf (whereas, strictly speaking, Islamic law
recognizes endowment of landed property only) and the institution of
istibdda'.47
Al-Kasani appeals to consensus in order to justify the custom of
murdbaha:
wa-'urfual-Musliminwa-'ddatuhumhujjatunmutlaqatunqdla al-nabi
'alayhi al-saldt wa'l-salam md ra'dhual-Muslimiunahasananfa-huwa
'indaAllah hasanun...mrdra'cihual-Muslimlinaqabihanfa-huwa 'inda
Allah qablhun...wa'l-ta'wilufihidha al-bdbi'ali al-'ddati....
[The custom of the Muslims and their usages constitute an absolute
proof. For the Prophet, may prayer and peace be upon him, said,
"Everythingthat the Muslims regardas good is good in God's eyes...
and everythingthat the Muslims regardas reprehensibleis reprehen-
sible in God's eyes... The explanation in this chapter is according to
custom.]48
The Shi'i al-Tusi (d. 459/1067), a close contemporary of al-Sarakh-
si, also relies on ijmdc to substantiate a custom dating to Muhammad's
time. The context is the question of whether bread may be lent and, if
so, under what conditions:
wa-aydan huwa ijmd'fa-inna al-nasa yastaqridiinamin 'ahd al-nabi
salld Alldh 'alayhiwa-sallamaild yawmind[hddha] min ghayr tandkur
baynahumfa-mankhdlafakhdlafaal-ijmd'.
[Moreover,this is a generally agreed thing, for people have lent bread
since the time of the Prophet,may God bless him and granthim peace,
withoutany one of them deploring[the usage]. Thus,whoever dissents,
dissentsfrom the consensus.]49
This line of reasoning was ultimately adopted by the classical and
post-classical jurists,50 and is indeed invoked at the beginning of Ibn

he-prayer andpeacebe uponhim-said, "Everything thatthe Muslimsregardas

good is good."].
47 Al-Sarakhsi,Mabsit, vol. 15, 171. Latecommentaries explainal-Sarakhsi's
approachas relating here to a specific custom that conflicts with a general
principle,for whichreasonthe custommustprevail.See in this contextalso ibid.,
vol. 15, 85, and examplesibid., 86, 88, 90, 93, 99, 102. See also ibid., vol. 19,
46 andal-Marghinani, Hiddya,vol. 6, 78, 85. Foristibdd'see n. 45 above.
48 Al-Kasani,Badd'i',vol. 5, 223.
49 Khildf,vol. 2, 77, and see also commentators on al-Marghinani (Hiddya,
vol. 6, 85, 157, 244, 245) who state that custom prevails over qiyds as it is
equivalentto ijmd'.Forexample,the commentary to Hiddya,vol. 6, 157 reads:li-
anna al-'urfabi-manzilatal-ijmd'i'inda 'adamal-nass [...insofaras customhas
thestatusof ijma'wheneverthereis no explicittextualrule].
50 See, for example,Sayf al-DinAbi al-Husayn'Ali b. Abi 'All Muhammad
150 GIDEONLIBSON

Nujaym's and al-Suyuti's treatises.51Ibn Nujaym points out that the

argumentwas necessary because neither Qur'annor hadlth contains
any hint of custom as a sourceof law.52

3. Customas a MaterialSource
i) Istihsan (judicialor personalpreference)versusqiyas (analogy)
We have seen how some scholars attemptedto identify custom with
sunna or ijmd', and thereby to reject qiyds. The standardmethod of
legitimizing customs in the classical period, however, was to derive
them from otherprinciples,mainly istihsan,thatis, to treatcustom as a
materialsource,withoutdirectlyrecognizingit as aformal source.
Legal analogy, as a recognizedsource of law operatingthroughthe
rules of qiyds, is generallyconsideredto overrulecustom.Nevertheless,
Muslim jurists considerthe principleof istihsdn or judicial preference
as a sufficientreasonto rejectqiyas,with the resultthatqiyds gave way
not to custom but to istihsdn. However, the power of istihsdn was
somewhat limited. On the one hand, this reflects the weak position of
custom, which remained unrecognized as an independent source,
constitutingonly a materialsource. On the otherhand, the rejectionof
qiyds by istihsacnimplies a certainweakness of qiyds which, like cus-
tom, is of humanoriginand does not derivefrom divine revelation.The
idea that custom overrulesqiyds is stated explicitly by al-Muqaddasi
(d. ca. 946 C.E.), who writes: lammi kdna al-ta'drufu 'indand muq-
qadaman 'ald l-qiydsi [insofaras custom takes precedenceover legal
analogy].53
The adoptionof custom throughistihsdn is particularlycommon in
the works of al-Sarakhsi,who was probablyfollowing in the footsteps

al-Amidi (d. 631/1233), Al-Ihkamfi Usul al-Ahkdm(Beirut, 1984), vol. 4, 212-13.

51 See Ibn Nujaym, al-Ashbdh, 37; al-Suyuti, al-Ashbdh, 63.
52 Most
probably,however,the hadlthson whichconsensusis basedare also
dubious(see, for example,Hourani,ibid.; Abu Sinnah,Al-'Urf wa'l-'Adah,25).
This supportsthe thesisthatthe attemptto identifycustomandijma'is also late.
53 Muhammadb. Ahmad al-Muqaddasi,Ahsan al-Taqdsimfi Ma'rifatal-
Aqdlem(Leiden,1967),272 (citedby Goldziher,Zihirls, 181);see also al-Mawar-
di, Adab al-Qddi, vol. 1, 612. It is perhapsnot uninterestingthat R. Abraham
Maimon(Maimonides'son),perhapsthefirstJewishscholarto comparecustomto
othersourcesof law, does so in languagesimilarto that of the Muslimjurists,
althoughhis conclusionsare different:"Thosecustoms(Heb.minhagot)thatthe
Sages, of blessed memory,commandus to obey and forbid us to oppose are
customsfor whichthereis proofneitherin Scripturenorby analogythatimpliesthe
opposite..."(AbrahambenMoshebenMaimon,SeferHa-Maspik Le'OvdeyHashem
[Kitdb Kifayat al-'Abidin, ed. N. Dana, Ramat-Gan 1989], 72; and see also ibid.,
177-78).
 THE DEVELOPMENTOF CUSTOM AS A SOURCE 151

of earlier Hanafi scholars. We have already noted this tendency in our

previous example--"we renounce the application of the legal analogy,
because people customarily practice such [transactions]"-though al-
Sarakhsi does not explicitly refer to istihsin. Elsewhere in al-Mabsut,
however, he writes, citing al-Shaybani:
al-istihsdnu tarkual-qiydsi wa'l-akhdhubi-md huwa awfaqu li'l-ndsi
wa-qila al-istihsdnu talabu al-suhiulafl-ahkamifimd yubtal fihi al-
kh.ssu wa'l-'dmmuwa-qilaal-akhdhubi'l-sa'atiwa'ibtighd'ual-da'ati.
[Istihsdn is the renunciationof analogy and the adoption of what is
more fitting for people. Some say: istihsdn seeks to introduce more
lenience in laws in connection with difficulties encountered by the
individualand the generalpublic (viz., everyone).54Some say: it is to
give wide latitudeand to solicit comfort].55
Al-Sarakhsi's use of istihsin as a method of admitting customs is
so common that he sometimes refers to custom as a form of istihsdn:
wa-li'l-istihsdni wajhayn (ahaduhumd) al-'urfu [istihsdn has two
aspects, one of them being custom].56

54 The terms khdass(particular)and 'dmm

(general) are used here in the sense of
the individual and the public; no reference is intended to special groups (elites) vs.
society in general. See El, new ed., s.v. al-Khassa wa'l-'Amma; cf. B. Lewis, The
Political Language of Islam (Chicago, 1988), 67.
55 Mabsat, vol. 10, 145; and cf. ibid., vol. 15, 90: al-qiyds yutrak bi'l-'urf
[analogy is abandoned in favor of custom], or: al-haraj madfu' shar'an [it is
permitted to reject a legal difficulty in order to rule leniently]. For a slightly
different definition of istihsan, see Ibn Rushd, Biddya, vol. 2, 185: wa-ma'nd al-
istihsdnfi akthar al-ahwdli huwa al-iltifat ild al-maslahati wa'l-'adli [the meaning
of istihsdn in most cases is allowance for utility and justice], and cf. ibid., 278.
Cf. also al-Mawardi,Adab al-Qadi, vol. 1, 652: "wa-qad 'amalu'l-muslimunbihi
istihsanan fa-dalla 'ali an al-istihsdn hujja wa-in l yaqtarin bi-hujja" [The
Muslims have already practiced it as istihsan, and this shows that istihsdn is a
proof although it is not based on a proof-text] (that it, it is not an independent
source), and cf. ibid., 657. According to Johansen ("Coutumeslocales et coutumes
universelles," 32), istihsan representsa normative dimension of a general practice,
a dominant custom in all countries ('urf zdhir fi jamt al-bulddn). In the present
essay I have not discussed Johansen's important distinction between a general
custom ('urf 'Cmm) and a local one ('urfkhd.s; see ibid., 31); this distinction is not
common in the pre-classical and classical literature.
56 Mabsut, vol. 15, 142; or cf. ibid., 171: wa-ldkinnahu istihsdnu li'l-'urfi [but
istihsan is considered custom]. For other cases cited by al-Sarakhsi in which
istihsdn prevails over qiyds, see in connection with suretyship, ibid., vol. 19, 176:
fa'l-mdl Idzimunlahu 'indan& istihsdnan...wa'l-istihsdnwajhayn...wa'l-thdnlanna
hddha muta'drafunfimd bayna al-ndsi fa-inna raghbat al-nds fi al-kafala bi'l-nafs
akthar minhu bi'l-kafdla bi'l-mdl [We consider the debt in force, because of the
public good... Public good has two aspects... The second is that this (suretyship) is
accepted among people, for the people's desire for suretyshipfor a person [that is,
for the appearanceof a debtorin court] is greaterthan theirdesire for suretyshipfor
a debt]; and see also ibid., 173, 174, 177. See also Udovitch, "Islamic Law and
the Social Context of Exchange," 457; G. Libson, "Suretyship for Person in
152 GIDEONLIBSON

In sum, it appears that by relying on istihsdn as a kind of legal

source, Muslim jurists granted custom de facto recognition as a ma-
terial source of law, without recognizing it formally, thereby narrowing
the gap between legal theory, which rejected custom, and practice,
which sanctioned its use.57

4. Custom and Dispositive Law

Another approach that enabled Muslim jurists to absorb new customs
was to recognize them in the framework of dispositive law, that is, to
recognize custom by virtue of the agreement and stipulation of the
parties. Custom is appealed to here in a rather different way: previously
we discussed the position of custom as a source of law in relation to
other sources, mainly qiyds; here custom fills a legal void or establishes
a legal norm. One expression of this approach is the formula,
frequently cited in the Hanafi legal literature, al-ma'lumu bi'l-'urfi ka'l-

Samuel b. Hofni's Book of Suretyship, Maimonides and the Parallel Muslim

Literature"(Heb.), Shenaton ha-Mishpat ha-'Ivri, xiii (1987), 121-84, 173 ff. In
connection with the distribution of property between a man and his wife see
Mabsut, vol. 5, 214: wa-ammd Abu Yusuf rahimahu Allah ta'ald yaqulu al-qiyds
an yakun al-kull li'l-zawj li-anna al-mar'ata ma'a md fi yadihd fi yad al-zawj illd
anna al-zdhir annahd Id tuzaffu ild bayt zawjihd illd ma'a jihdz mithlihd fa-fi
miqddrjihdz mithlihdyutrak al-qiyds li'l-'urfi al-zdhirl [But Abf Yuisuf-may God
have mercy upon him-is of the opinion that, according to legal analogy, every-
thing belongs to the husband, insofar as the wife, together with everything in her
possession, are in the husband's possession; but the manifest (custom) is that the
wife comes to her husband's home with only the "fair" trousseau, and as to the
suitable worth of the trousseau,one renounces analogy in favor of manifest custom
...] (al-Sarakhsi frequently uses the expression 'urf zdhir, as he does here, in the
sense of an accepted custom; see ibid., vol. 5, 213; vol. 14, 139; vol. 13, 80). Cf.
also al-Kasani, Badd'i', vol. 2, 309.
57 On istihsdn see J. Makdisi, "Legal Logic," 63 ff., who tries to show that
istihsdn is not equivalent to equity, which, as an independentsource, overrides the
legal sources of the law, in particular qiyds; rather, it is rooted in other legal
sources, such as hidden analogy, which, in that connection, takes priority over
apparent analogy. For a discussion see B. Weiss, "Interpretationin Islamic Law:
The Theory of Ijtihdd,"The American Journal of Comparative Law, xxvi (1978),
202, who cites a view "that istihsdn, far from being an expression of personal
preference, was nothing more than the repudiationof one rule based on analogy in
favor of the adoption of another based on a more subtle-but ultimately more
plausible-analogy." This runs counter to Tyan, who considers istihsdn an
independent source. Makdisi's approach is closer to that of Schacht and Chehata,
who regarded istihsan as subordinateto the other sources of law. See also W. B.
Hallaq, "Consideration on the Function and Character of Sunni Legal Theory,"
Journal of the American Oriental Society, civ/4 (1984), 679-89, esp. 681 ff.; R.
Paret, "Istihsanand Istislah,"Shorter Encyclopaedia of Islam, ed. H. A. R. Gibb &
J. H. Kramers(Leiden & London, 1961), 184-87, and Encyclopaedia of Islam, 2nd.
ed. (Leiden, 1978), vol. IV, 255-59; Johansen,Islamic Law of Land Tax, 31-32 and
notes, 54-55.
 THEDEVELOPMENT
OFCUSTOMAS A SOURCE 153

ma'lumibi'l-sharti [Whatis known by virtueof custom is like what is

known by virtue of an agreedcondition].58Othercommon versions of
this saying include: al-thdbitu bi'l-'urfi ka'l-thdbiti bi'l-sharti [What is
establishedby virtue of custom is like what is establishedby virtue of
an agreed condition]; al-ma'lumu bi'l-'urf ka'l-mashruti bi'l-nassi
[Whatis known by virtueof custom is like what is stipulatedby virtue
of a legally clear text];59al-thdbitu bi'l-'urfi ka'l-thdbiti bi-dalilin shar'i
[Whatis establishedby virtue of custom is like what is establishedby
legal evidence];60al-ma'ruf ka'l-mashrut[thatwhich is customaryis
like thatwhich is stipulated].61
This principleis invokedin relationto the rightsand dutiesof parties
to contractsin a broadvarietyof areas:loans, hire, power of attorney,
suretyship,damages,service, etc. For example, al-Sarakhsideclaresin
connectionwith hire:
wa'l-marji'ufi dhalika ild al-'urfi fi kulli mawdi'in wa-huwa aslun
kablrunfial-ijdratifa-innamd yakunmin al-tawdbi' ghayra mashrutin
fi'l-'aqd yu'tabarufihial-'urffi kullbaldatin.
[The determinationof this matterfollows custom in all places, and that
is a majorprinciplein regardto hire, so thatwhateveris not stipulated
explicitlyin the contractis treatedin accordancewith the customin each
city.]62
The principle is cited not only by Hanafi scholars, but also by the
Sh&fi'ial-Mawardi (d. 450/1058),63 the Mliki Ibn Rushd (d. 594/1198)
and the Shi'i al-Tisi (d. 459/1067).64 Thus, for example, Ibn Rushd
reports the principle in Malik's name: wa-kana Mdlikun ja'ala l-'urfa

58 Al-Sarakhsi, Mabsut, vol. 15, 90.

59 Ibid., vol. 15, 130, i71.
60 Ibid., vol. 13, 14. See also ibid., vol. 15: 121, 125, 129, 132, 141-42, 147,
157, 160, 164, 167, 169-74, 177, 180-81, 183;vol. 3, 105; vol. 16: 27-29, 41-42,
48-49, 52-58; vol. 19, 40. Another,similar version is: al-ma'ruf 'urfan ka'l-
mashriutshar'an[whatis knownthroughcustomis like whatis stipulatedby law];
see Johansen,"Coutumes localeset coutumesuniverselles,"30.
61 Al-Marghinani,Hiddya, vol. 6, 136; and see also ibid., 134, 135, 181.
Similarstatementsmaybe foundin worksof otherHanafiauthorsandof represen-
tativesof otherlegal schools,for example:Ibrahimb. 'Ali b. Yfisufal-Shirazi(d.
fi Fiqh Madhhabal-lmdm al-Shdfi'i (Egypt, 1959), vol.
476/1083), AI-Muhadhdhab
1, 304; IbnRushd,Biddya,vol. 2, 331;al-Mawardi,Adabal-QdEl,vol. 2, 180;see
also the discussionin Ibn Nujaym,al-Ashbdh,39; andcf. Abf Yisuf as cited by
al-Sarakhsi, ibid., vol. 3, 105: thabitan bi-i'tibdr al-'adati ka'l-thabiti bi'l-nass
of custom,andthatis as if establishedin a clear
[...is establishedin consideration
text.
62 Mabsat, vol. 15, 121.
63 Adab al-Qdli, vol. 2, 180.
64 Khildf,vol. 2, 36; see also ibid., 164, 203, 326, 407.
154 GIDEONLIBSON

filh bi-manzilati al-sharti [Milik regardedcustom in this matter as

having a statussimilarto thatof an agreedcondition].65
Customhas the power to determinethe rightsand duties of contract-
ing partiesnot only when the partiesthemselveshave so stipulated,but
also as a supplementarysource in situations in which no conditions
have been stipulated.This is aptly stated by Ibn Rushd:fa-kdna al-
mushtarl dakhala 'alI hddha al-sharti bi'l-'dati wa-in lam yadkhul
bi'l-nutqi [the purchaserbecomes subject to an agreed condition by
virtue of custom, even if this is not explicitly stipulated].66This rule is
expressed in Article 44 of the Mejelle, which states, "Whatis known
amongmerchantsis as if stipulatedamongthem."67
The frequency with which the principle was applied in different
areas,by scholarsof differentschools, testifies to the power of custom,
despite its nonrecognitionas a source of law in the classical literature.
Article 45 of the Mejelle ("Whateveris dictated by custom is as if
dictatedby Scripture")is essentiallya restatementof this principle.

5. TheChangingPerceptionof Customin Post-ClassicalLiterature

We saw in the first section of this essay that, at the beginning of the
classical period, some jurists favoredrecognizingthe official statusof
custom. However, these attemptswere rebuffedby the mainstreamof
legal scholars who, fearing a clash with legal theory, sought-and
found-alternative ways to integrate custom into the fabric of their
legal system. That they did so despite their refusal to recognize it in
formal terms was an outcome of constraints imposed by practice,
particularlyin the economic sphere.Thanksto these various devices,
custom moved from the peripheryof legal theoryto become a focus of
legal attentionin the post-classicalperiodof Islamic law. The way was
thus preparedfor the compositionof special chapterson custom in the
legal literature,beginning in the early sixteenth century, such as Ibn
Nujaym's Al-Ashbdhwa'l-Nazd'ir,al-Suyt.i's similarly entitledwork
and, in particular,a chapterin a legal treatiseby the nineteenth-century
Hanafi scholarIbn 'Abidin(d. 1252/1836). Althoughno directties can
be found between this development and the views of the classical
advocates of recognizing custom as a source of law, there is no doubt
that the classical jurists, in additionto theirfrequentappeal to istihsin

65 Ibn Rushd,
Biddya, vol. 2, 331; and cf. ibid., 214 and especially 188; ibid.,
313-14.
66 Ibn Rushd, Bidaya, vol. 2, 188.
67 The
Medjelle of OttomanCivil Law, transl.W.E. Grigsby (London, 1895).
 THEDEVELOPMENT
OFCUSTOMAS A SOURCE 155

as a justification of custom, created a climate that was suitable for the

later evolution of the concept as a formal source. We are not concerned
here merely with a literary phenomenon, but with an expression of a
gradual change in the status of custom. The large number and
frequency of rulings on the subject altered the relative weight of custom
and paved the way for its recognition in formal terms.
The formal status of custom, rejected in the classical literature,
reemerged in post-classical and moder periods. This development
reached its peak in the introductory articles of the Mejelle, several of
which, devoted to custom, were culled from early and late fiqh
literature; the consolidation of these articles in a single act of legislation
reflects the evolution of custom in Islamic law from a material source
toward recognition as a formal source. It must be emphasized that the
Mejelle was not a code of religious law but the product of secular
legislation; this constitutes a change in the basic norm of the recognition
of custom, and consequently this "proof' of the formal status of custom
in Islamic law should be treated with some reservation. Nevertheless, it
was the trail that had been blazed, so to speak, by post-classical jurists
that enabled the authors of the Mejelle to treat custom as a legal source,
as they indeed seem to have done.68
Our account of the development of custom in Islamic law indicates
that custom is occasionally disguised as sunna or ijmd', or even as an
ordinary ruling in the fiqh literature, whereas Jewish law recognized
custom as a source of law-and indeed relied upon it frequently during
the Geonic period. In fact, the two legal systems attained the same goal
through different means and they represent two different aspects of the
same phenomenon. Further comparison of the use made of custom as a
source of law in the Islamic and Jewish legal systems may enlighten us
not only about the background which inspired the development and
expansion of custom by the Geonim, but also about the evolution of
custom within Islamic law, and hence about the development of Islamic
law itself. That, however, is beyond the scope of the present effort.

68 Johansen's
argumentthatgeneralcustom('urf'mm) mayserveas a source
of universallyvalid legal norms(see his "Coutumeslocales et coutumesuniver-
selles," 34, 35), is essentiallyequivalentto my conclusionhere that customulti-
matelybecamea formalsourceof Islamiclaw. I disagreewith Coulson("Muslim
Customand Case-Law,"15), who assertsthat custom,"as a legal principleof
subsidiaryand supplementary value,"operatedonly "withinthe frameworkof the
fourmainsources";but furtheron (ibid., 19) Coulsonconcedesthat"on nonebut
thehighesttheoreticalplanecanit be definedthatcustomis an importantsourceof
law in theworldof Islam"(emphasisadded).