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Customary Practices as Exigencies in Islamic Law

Between a Source of Law and a Legal Maxim

In: Oriens
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  • 1 McGill University
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Abstract

I offer a corrective to Libson’s view that customs made their way into Islamic law in the formative period only through the ḥadīth and ijmāʿ genres. I argue that custom was incorporated into the law through the legal methodologies of Abū Ḥanīfa and Mālik. Due to the success of al-Shāfiʿī’s thesis, later jurists justified custom on grounds of necessity and exigency of the times rather than elevating it to the level of the four-source theory of Islamic law. Essential to this process of valorization of custom was a legal maxim developed by al-Juwaynī in the classical period.

Abstract

I offer a corrective to Libson’s view that customs made their way into Islamic law in the formative period only through the ḥadīth and ijmāʿ genres. I argue that custom was incorporated into the law through the legal methodologies of Abū Ḥanīfa and Mālik. Due to the success of al-Shāfiʿī’s thesis, later jurists justified custom on grounds of necessity and exigency of the times rather than elevating it to the level of the four-source theory of Islamic law. Essential to this process of valorization of custom was a legal maxim developed by al-Juwaynī in the classical period.

1 Introduction

In order to understand the role of custom in the ecology of Islamic law, I first briefly discuss legal pluralism since customary laws and practices are sometimes in tension with state law representing a typical case of legal pluralism. There is no consensus on the meaning of “legal pluralism,” a concept coined in the 1970s as a reaction against the idea that the law is exclusively the prerogative of the state or “legal centralism.”1 According to Griffiths, there are two types of legal pluralism. “Strong legal pluralism” exists when there are multiple sources of law, developed by private social groups and uncontrolled by the state. “Weak legal pluralism” exists when the state designates legal rules for different sectors of the population, such as when the state permits tribunals for religious or ethnic minorities.2 Brian Tamanaha rejects the very notion of legal pluralism, calling into question the legal pluralists’ insistence that the state does not have a monopoly on law, which in his estimation leads to the conclusion that all forms of social control are law.3 Despite Tamanaha’s critique, the term legal pluralism has been widely used as a conceptual framework over the past forty years.4

In the context of Sunni Islamic law, one can speak of three types of legal pluralism: (1) “Sunni juristic pluralism,” that is, the existence of multiple legal rules that are considered equally normative in the discourse of Muslim jurists. (2) “Sharia and state law pluralism,” refers to the tension between the jurisdiction of Sharia and that of state courts and laws, such as Mamluk complaint courts (maẓālim) and Ottoman state law (qānūn) in the premodern period. The distinction made by Muslim jurists between Sharia and state law is rooted in the assumption that the latter derives its direct authority from the state, rather than from Muslim jurists. Sharia and state law were the two main components of the legal apparatus of premodern Muslim states. (3) “Sharia and customary law pluralism,” refers to the tension between customary tribunals and laws, and Sharia jurisdiction. It is under the third type of legal pluralism that custom can compete with state law, which for premodern Muslim polities was the mix of Islamic law and qānūn.

Much has been written about the first two types of legal pluralism, but the third type has received much less attention from the perspective of legal theory. Most of the work on the competition between Islamic law and customary law is restricted to anthropological studies that did not rely on tomes of legal theory. This line of research shows that despite the modern state’s restriction of the third type of legal pluralism, it has not succeeded in completely uprooting it. In Stewart’s introduction to a theme issue on customary law in Islamic Law and Society, he argues that part of the reason for the continued reliance on customary law in many Muslim societies is the ineffectiveness of the state, due to corruption, red tape, and weak government.5 One can add to that the long periods of adjudication and the cost of lawyering.

Premodern Sharia courts were not expensive due to the absence of legal hierarchies for the review of judicial decisions. This made premodern Sharia courts an attractive option for dispute resolution not only owing to their speed and low cost, but also because their decisions were usually implemented by state authorities. However, the premodern state did not have the resources or technologies of control and transportation of the modern state, and therefore one can assume that at least in rural areas that are far from the control of the state, people sought customary forums of adjudication. This is confirmed by discussions in premodern juristic discourse and court records of reconciliation councils, arbitration, and other non-Sharia customary mechanisms of dispute resolution. However, in premodern juristic discourse and in court records alike the discussion of arbitration is often brief and focused only on the areas of law where arbitration or mediation outside of the scope of Sharia are allowed. Such discussions do not examine the specific customs or bodies of law and procedure that are followed in these contexts. For this reason, we know very little about such customary forums of dispute resolution in the premodern period.

What we know more about is the process of valorization (or lack thereof) of certain customary practices in Islamic legal theory for incorporation into Islamic law. This is the main objective of Islamic legal scholars who discussed “custom” (ʿurf and ʿāda) to sift through theoretical approaches to dealing with the tension between Islamic law, which is supposed to be stable, and customary practices, which change over time and from one locality to another. This discussion has often been restricted to the role customs (broadly defined, whether or not they form “customary law”) interacted with Islamic law. An important concern of these discussions, which is particularly common among purist jurists, is whether certain customs represent forbidden “innovation” (bidʿa).6

Most premodern Muslim jurists used two terms usually interchangeably to refer to “custom” namely ʿurf and ʿāda. Yet there was sometimes a distinction made, albeit not recognized by most jurists, that ʿurf is collective (custom), whereas ʿāda is individual (habit). This is clear in al-Suyūṭī’s (d. 911/1505) reference to a person giving a friend gifts as a habit before the latter was appointed as judge. The question is whether this newly appointed judge can continue to accept these gifts despite the appointment. This example represents the exception to the general assumption of synonymy between the two terms.7 The term ʿamal was a much more complex term that was used in the early Mālikī school especially in Mālik’s Muwaṭṭaʾ to refer to social praxis in his time, which may have as its provenance Prophetic reports, scholarly and judicial practices, or pre-Islamic customary practices. They thus contained elements of both social and judicial customs in the early period. The term would be used in the later Mālikī school to refer primarily to judicial practice.8

Conceptually, the issues discussed under the category of “custom” in its various forms include: (1) linguistic custom and its role in hermeneutics (henceforth, linguistic convention); (2) custom of premodern judges (henceforth, judicial custom); and (3) custom of the people or the ancestors, which includes social custom and customary laws applied outside of the courts in premodern Islamic polities (henceforth, social custom). Following premodern juristic discourse, both types 2 and 3 may be further divided into “general” (ʿāmm), usually referring to customs that are operative in larger regions and applying to the general population, and “specific” or “particular” (khāṣṣ), which refers to customs pertaining to a small region like a city or a sub-section of society such as merchants.

Scholarly consensus was often produced by local praxis, regardless of the latter’s provenance, but the opposite was not always the case. Wymann-Graf rightly observes that Medinese consensus is not co-extensive with local praxis, as has been the scholarly assumption. He goes on to say:

Every instance of Medinese consensus belonged to Medinese praxis, but not every aspect of Medinese praxis enjoyed the consensus of all prominent Medinese legal scholars. Rulings that did not enjoy consensus sometimes seem to have been instituted into local praxis because they fell under the jurisdiction of the city’s judiciary or other types of executive authority. In some cases, no given practice predominated, with the result that Medinese praxis was ‘mixed.’9

Put differently, scholarly consensus was the result of Medinese ʿamal, which includes social practices and judicial practices often imposed by the state. Although one should not assume that scholarly consensus and judicial custom were co-extensive, there must have been a great overlap except in limited circumstances in which the state and judicial authorities sought to inscribe judicial norms that are contrary to scholarly consensus for reasons of expediency.

Judicial customs are distinct from social custom in that, even if they have clear customary law provenance, judicial customs are often social customs that have been valorized by judges (that is, the state) to be incorporated in the law through the state judiciary. Being valorized by judges does not necessarily mean that they are not opposed by some jurists and therefore one finds situations in which judicial customs were in tension with the laws of many author-jurists despite being implemented in the courts.10 The cash waqf is a case in point.11 Many judicial customs, albeit certainly not all, originate from social customs.

The first type of custom (i.e. linguistic convention) is only legal inasmuch as it affects the interpretation of the sources of law, but it does not directly initiate legal rules. God, for instance, considers fish to be “meat” based on Qurʾanic linguistic convention. Later linguistic convention does not consider fish to be “meat.” If someone swears an oath not to eat “meat,” she or he is not liable for expiation if they eat fish because the linguistic convention of the person making the oath rather than God’s linguistic convention is determinative of intent. This is based on the assumption that language is not static. When they discussed the role of linguistic convention, Islamic legal theoreticians were not concerned with the introduction of new legal rules as would be the case with new legal customs, but rather with legal interpretation.12

The second type of custom is the custom of judges, which may or may not be in tension with the custom of jurists who write legal manuals and are, at least in their capacities as author-jurists, less encumbered by the practicalities of adjudication. While Sunni legal pluralism allows for multiplicity, legal practice by its very nature must limit this multiplicity in line with conceptions of social welfare, hence the occasional tensions between judicial practice and the rules of author-jurists. Premodern Muslim jurists used several expressions to refer to legal opinions that were practiced in courts and legal responsa: “this is what is used in the courts and in fatwa-giving” (ʿalayhi al-qaḍāʾ and bihi al-fatwā). These judicial practices were sometimes based on weak legal opinions and at other times, they faced stiff opposition from some jurists. The third type of custom is that of society itself. When social customs were valorized by jurists, they were considered part of Islamic law regardless of their provenance, whether Prophetic or not as in the case of Medinese ʿamal.

In this essay, I focus on judicial custom (type 2) and social custom (type 3). They can be further divided into: (1) customs that are not in competition or tension with Islamic law and are usually only used to fill lacunae; and (2) customs that are in tension with the law (both the sources of law and the ijtihād of jurists), which are in turn further divided into customs that are in tension with the clear textual sources and ones that are in tension with rules subject to ijtihād. The first type of customs that filled lacunae was not controversial. Most jurists also allowed customs to overrule ijtihādic views or to privilege one view over another in cases of juristic disagreement. It was customs in tension with the sources of law that posed a challenge to legal theory.

In our discussion of legal pluralism, it is also important to briefly discuss concepts such as “arbitration” (taḥkīm) and “reconciliation” (ṣulḥ). These terms are related to social custom in that arbiters and mediators may rely in their decisions on local customary laws. In fact, this type of customary law is still widely practiced in modern Muslim nations today and is sometimes in tension with state law. One can fairly assume that similar customary laws must have co-existed with Islamic law in premodern Muslim polities. Unfortunately, jurists did not elaborate on the social sources of arbitration and mediation rules, as already noted. The discussion of arbitration and mediation was always about whether they are permissible and in what types of cases. Most jurists agreed that they are permissible in all legal transactions except for “prescribed punishments” (ḥudūd) and “retaliation” (qiṣāṣ), while others restricted the prohibition to ḥudūd.13

The practice of arbitration and mediation is attested by the court records of early modern Egypt where scribes often mentioned ṣulḥ arrangements made outside of the court, most likely following customary practices that were not based on Islamic law. Premodern juristic discourse sometimes shows concern among jurists about the competition between customary laws and Islamic law. In one instance, Ibn Humām (d. 861/1457) cited the view that the laity should not be told about their arbitration/mediation options in fatwas, lest they abandon the Ḥanafī school and resort to mediation and arbitration instead to settle their disputes.14

Modern historians have written about the role customs have played in the construction of Islamic law.15 In his discussion of the role custom played in the formation of Islamic and Jewish law, Libson argues that customs made their way into Islamic law in the formative period through the ḥadīth and ijmāʿ genres. With the stabilization of the ḥadīth and ijmāʿ genres, custom made its way into Islamic law through istiḥsān and maṣlaḥa.16 Istiḥsān was the term often used in the eighth and ninth centuries to refer to public interest,17 which itself was informed by customary practices. Shabana rejects Libson’s claims primarily on grounds of his skepticism of the authenticity of the ḥadīth literature.18

This essay offers a longue durée view of custom and takes a closer look at the conceptual matrix of custom in the early texts of Islamic law. My objective is to examine the ways in which these concepts developed in the classical and post-classical periods to justify customary practices after the stabilization of the genres of ḥadīth and ijmāʿ (on my periodization, see the next section). I offer a corrective to Libson’s thesis by arguing that custom was incorporated into the law during the formative period through the legal methodologies of Abū Ḥanīfa and Mālik. I argue that the contestation over custom existed in Islamic law throughout its history. The early opposition of al-Shāfiʿī and the convergence among the legal theories of the four Sunni schools in the classical period led to a generally negative view of social and judicial customs that contradicted the sources of law. This was not the case under the early methodology of the “rationalists” (ahl al-raʾy).

Given this negative view of custom due to al-Shāfiʿī’s successful critique of istiḥsān and ʿamal, how did jurists accommodate judicial and social customs in the post-classical period? This was a particularly pressing task given the rapid and dynamic socio-economic changes of the post-classical period, especially under the Mamluk Sultanate and the Ottoman Empire. I argue that due to the success of al-Shāfiʿī’s thesis and the later stabilization of the ḥadīth and consensus genres, jurists often justified custom on grounds of necessity and exigency of the times rather than elevating it to the level of the four-source theory of Islamic law that stabilized after al-Shāfiʿī’s time.19 While Libson has already argued that ḍarūra was utilized in the post-classical period to accommodate customary practices, he did not elaborate on the ways in which this process took shape. I do that by examining the evolution of a legal maxim developed by al-Juwaynī in the classical period, which would prove essential to Sunni thinking on custom in the post-classical period. Faced with the high bar required for ḍarūra in the classical formulation of “public welfare” (maṣlaḥa), best articulated by al-Ghazālī, post-classical jurists resorted to a redefinition of ḍarūra, whereby a mere social “need” (ḥāja) based on widespread practice (that is, custom) sufficed to trump some of the textual sources in the valorization of customary practices.

2 Custom in the Pre-Classical Period (8th–11th Centuries)

Customs are tied to terms such as consensus (ijmāʿ), the notion that the Muslim community cannot agree on an error. Consensus represents, as Libson argues, the “outcome of custom.”20 Consensus has the added historical reality that most issues of consensus, as one would expect, were fixed in the pre-classical period of Islamic law. In other words, earlier customs of Muslim societies were structurally privileged over later customs under the concept of consensus. Certainly an important difference between “custom” (ʿurf, ʿāda) and consensus is that the latter contains a closer connection to the textual sources since it was assumed that many of the early practices of the community originated with the Prophet’s example and traditions (the same is true for Mālik’s concept of ʿamal, which contains both customary and Prophetic practices). This explains the high status accorded to consensus as a source of law, compared to custom’s less stable status in legal theory. Other terms such as “considered opinion” (raʾy) and “juristic preference” (istiḥsān) were often utilized in the formative period to refer to the accommodation of customary practices in the law.

Following Chafik Chehata’s periodization, Libson divides Islamic law into: pre-classical (until the end of 9th century); classical (10th to 12th centuries), and post-classical (12th century on) periods.21 My periodization varies only slightly by extending the classical period until the end of the 12th century due to important institutional changes that happened in that period.22 Libson argues that in the pre-classical period, there were no references to custom. He then argues that despite the fact that custom was not considered a source of law in the classical period, it was referenced as much by Muslim jurists as it was by their Jewish counterparts. In the pre-classical period, according to Libson, jurists identified custom with Sunna and consensus (ijmāʿ) to grant customary practices the force of law while maintaining a connection to the textual sources.23

In the pre-classical period, there was no need to grant custom an independent legal status because customs could still be incorporated into the law through the ḥadīth and ijmāʿ genres. This would cease to be the case once the ḥadīth literature was canonized. The same was true for ijmāʿ until it was compiled and stabilized as a genre. Another argument advanced by Libson about the absence of a theorization of custom in the formative period is the absence of the term ʿurf.24 Shabana counters that the absence of the term from the early sources of Islamic law does not necessarily mean that jurists did not have a methodology with respect to customary practices.25 I take Shabana’s critique further by examining the ways in which terms associated with custom were used in the early texts of Islamic law.

Libson therefore makes two important claims: (1) custom was not theorized in the earliest texts of Islamic law; and (2) customary practices made their way into the law through the ḥadīth literature and consensus. Shabana rejects both claims when he criticizes Libson’s assumption that the ḥadīth literature was fabricated and that the early sources are generally suspect. While Shabana’s critique is valid, Libson’s argument regarding the role of the ḥadīth literature and consensus as gateways for custom still stands, if we assume (as many premodern Muslims did) that at least some of the ḥadīth literature reflects later Muslim concerns and practices, rather than the Prophetic example. Even the ḥadīths that are indeed part of the Prophet’s legacy may have been inspired by customary practices contemporaneous with the Prophet. The Prophet, for instance, valorized many pre-Islamic customary practices rendering them part of Islamic law.26

As for Libson’s first claim, the sources attest to both the utilization of certain terms consistently to refer to customary practices in the early sources of Islamic law and the clear contestation over custom as part of the larger debate between the traditionalists and rationalists. It is true that the term ʿurf does not appear in Mālik’s Muwaṭṭaʾ, but the term maʿrūf appears in contexts similar to later uses of ʿurf. Mālik used maʿrūf in two senses: (1) the lay, non-technical sense of knowledge of a specific thing such as knowing the item that one is buying; and (2) in the sense of custom, that is, the areas of the law where the textual sources are silent and where social custom (widely known practice) or indeed Prophetic practice fills in the gaps.27 In this sense, maʿrūf refers to both the Prophetic example and the customary practices of early Muslims. In one instance, Mālik used it to refer to a rule that is established based on Prophetic practice.28 The reason for people’s wide knowledge of this practice is therefore its Prophetic provenance.

In other examples, the term maʿrūf clearly refers to social rather than scholarly practice. One example is a report in which the Prophet said that a slave is entitled to her or his food and clothing “according to what is customary” (bi-l-maʿrūf). Certainly one could translate maʿrūf as “reasonable,” which is a trait of a valid custom, but the source of this reasonableness seems to be that it is “widely known.” Otherwise, that reasonableness would be individually based, making it difficult for a judge to determine whether an owner violated the law by mistreating their slaves. In other words, the law stipulated that a slave owner is responsible for feeding and clothing her or his slave, but it was silent on the amount of food or the type of clothing, a matter left to customary practices in different regions.29 This is social custom (our second type of custom), which was often used to fill lacunae in the law. In Mālik’s use of maʿrūf, I have found no examples of social customs that were in tension with the four sources of law. In fact, both terms were sometimes used synonymously by Mālik. In one instance in al-Muwaṭṭaʾ, he referred to the lack of an “established custom or practiced rule” (laysa li-hādhā ʿindanā ḥadd maʿrūf wa-lā amr maʿmūl bihi fīhi) for the option to rescind a sale before the parties have departed the location of the transaction (khiyār al-majlis).30

I did find one instance of ʿāda in the Muwaṭṭaʾ, where it was used to refer to an individual habit, that is, a habit established by two parties in their previous commercial transactions. Mālik used the term ʿamal in both technical and non-technical senses. The non-technical sense simply meant “practice” which was not restricted to the customary practices of Medina. The term was also used by Mālik close to a hundred times based on our searches to refer to the practice of the people of Medina. The term ʿamal in its technical sense, as Dutton cogently explains, includes the practice of the Prophet and the ijtihād of later authorities. In this sense, ʿamal is larger than custom for only some of its constitutive elements may have originated from judicial or social customs.31 It contains the practice of the Prophet as well as the considered opinions and practices of the early generations of Muslims. Some of these elements can claim a Prophetic pedigree while others retained the customary and judicial practices of the early generations of Muslims.32 Wymann-Graf is in agreement with Dutton that ʿamal consisted of both the Prophetic legacy as well as the later raʾy of jurists.33 Considered opinion (raʾy), according to Wymann-Graf, was an important component of ʿamal and was formed on the basis of utilitarian or pragmatic reasoning under the categories of “discretion” (istiḥsān) and “public welfare” (maṣlaḥa).34

It is precisely due to Mālik’s incorporation in the concept of ʿamal of non-Prophetic practices that had no direct divine inspiration that al-Shāfiʿī (among others) was very critical of his methodology, which included non-Prophetic elements that could not be clearly linked to the Prophet himself.35 This entanglement of customs explains Mālik’s incorporation of both “social practice” (ʿamal al-nās) and “juristic practice” (ʿamal ahl al-ʿilm) under his all-encompassing concept of ʿamal.36 Mālik also sometimes used ʿamal to refer to pre-Islamic customs such as certain forms of sale, which he justified on grounds of their customary practice among the “ancients” (ʿamal al-māḍīn).37

Generally, ʿamal and maʿrūf in their technical sense for Mālik referred to the general practice of both community and legal authorities. The term’s usage corresponded to types 1 and 2 of custom, that is, judicial and social customs, in addition to the practice of the Prophet himself. The custom of the people, even when based on non-Prophetic practice, was considered normative so long as it was associated with the early generations of Muslims. The very notion of custom, as expressed in the terms maʿrūf and ʿamal, did not distinguish between the textual sources and custom. In fact, the two terms were synonymous. They both referred to the practice of the community whether it originated with the Prophet or with later generations. In this sense, custom’s indistinguishable entanglement with Prophetic practice meant that there was no conceivable way in which practice qua social, scholarly, or judicial custom could be in tension with the textual sources. However, there were limited instances in which Mālik was aware of a ḥadīth that contradicts ʿamal. In this case, his methodology privileged ʿamal based on his trust in the Muslim community’s preservation of the memory of the Prophet through concurrent transmission, which he assumed inhered in ʿamal as opposed to ḥadīth.38 Al-Shāfiʿī’s successful critique of this entanglement would create a problem for legal theory with which later theoreticians would have to grapple.39

Like Mālik’s use, al-Shāfiʿī used the term maʿrūf in two senses: specific knowledge of, say, an item of sale, or customary practices that are “known” from the ancestors.40 In line with his methodology, the term maʿrūf however did not entangle the Prophet’s practices with those of later Muslims. In fact, maʿrūf was used mostly to refer to areas of lacunae in the law where customary practices did not conflict with the textual sources. He used “known to the Arabs” (maʿrūf ʿinda al-ʿarab),41 “known to the laity” (maʿrūf ʿinda al-ʿāmma) to refer to widely known practice or custom,42 “known to scholars” (maʿrūf ʿinda ahl al-ʿilm) to refer to linguistic convention.43 He also used the verb to refer to what constituted poverty in social custom, which according to him was, “what people knew” (mā ʿarafa al-nās) to represent poverty.44

Al-Shāfiʿī also used the term ʿāda in the same way it was used by Mālik to refer to individual habit,45 but he also used it to refer to the custom of a large group or city, such as the custom of the Migrants and Supporters (wa-mina al-muhājirīn wa-l-anṣār ʿalayhi ʿādatan).46 Like Mālik, al-Shāfiʿī used the term ʿamal (and its derivative maʿmūl) not only in its non-technical sense of someone’s behavior or practice but also in the sense of communal customary practice. In one instance, he referred to: “the Sunna of the Prophet with respect to the funerary prayer as well as the practice of the community to our day” (wa-sunnat rasūl allāh (pbuh) fi l-mawtā wa-l-amr al-maʿmūl bihi ilā al-yawm).47

Al-Shāfiʿī challenged Mālik’s approach to ʿamal, arguing that in times of tension, the Sunna should prevail. One sees this tension between custom and the Sunna in al-Shāfiʿī’s discussion of the salam contract (sale of an unknown item). This is a sale of a non-existent property, which contains elements of speculation and interest.48 Al-Shāfiʿī mentioned a Prophetic report narrated through Ibn ʿAbbās in which he said that when the Prophet came to Medina, he found people using salam contracts for one or two years. He told them, “Those who enter into salam contracts, should do so with a known quantity and a known time-frame.” Al-Shāfiʿī then tried to reconcile this ḥadīth with another in which the Prophet had prohibited the sale of a property that one does not have. As Shabana’s argument goes, the terms ʿurf and ʿāda were not used by al-Shāfiʿī, yet there was an awareness that custom played a role in the Prophet’s legal rulings and in the classical jurists’ understanding of lawmaking.49

If the report permitting salam contracts is a later creation (as ḥadīth skeptics would assume), then a local custom was in tension with a Prophetic report, prompting jurists to create another report to validate the customary practice. This is not what al-Shāfiʿī had in mind since he assumed the validity of the Prophetic report, and therefore the report served to provide sanction for custom. If we accept al-Shāfiʿī’s assumption that the report is most probably authentic, then the Prophet’s earlier report was in tension with existing customary practices, prompting the Prophet to explain what type of contract is valid.

Whether the report in al-Shāfiʿī’s discussion about the salam contract is an authentic ḥadīth or a later fabrication only changes the time at which certain local customs were challenged, valorized, or modified, either by the Prophet himself or by later jurists. Either way, this example suggests that the project of the traditionalists was by its very nature opposed to customs that were in tension or contradiction with the textual sources, since the Prophet’s report was invoked to valorize and adjudicate on which customs to be accepted and which to be rejected. This understanding is consistent with al-Shāfiʿī’s legal methodology, according to which the only unproblematic type of social custom is that which filled legal lacunae without challenging the textual sources. The later utilization of custom to overrule analogical reasoning or to elevate social need to a necessity as we shall see below, is something that was consistent with the legal methodologies of both Abū Ḥanīfa and Mālik but rejected by al-Shāfiʿī. I am therefore in agreement with Wymann-Graf that Mālik’s classification as a traditionalist is inaccurate. His legal methodology exhibited more rationalist traits than has been acknowledged by many historians.50

Another term that is intimately linked to custom is istiḥsān, with many premodern jurists explicitly discussing this term as part of their discussion of custom. Istiḥsān is a form of legal reasoning that leads to the abandonment of analogy, a process informed by social factors, such as the welfare of the community (what would later be known as maṣlaḥa, itself very intimately connected with the concept of custom). The link between istiḥsān, which was often based on welfare assumptions, and custom can be sensed in a report transmitted by Abū Yūsuf, according to which ʿAbd Allāh b. ʿAbbās said, “This [view] is what is known, good, and beautiful” (dhālika al-maʿrūf al-ḥasan al-jamīl).51 Following Abu Zahra, Wymann-Graf argues that there is a strong link between customs and public welfare (maṣlaḥa). Mālik considered sound local customs to be manifestations of maṣlaḥa. The same is true for later Mālikīs as al-Shāṭibī makes a similar argument tying customary practices to utility and necessity.52 This link between custom and public welfare was also assumed by later jurists who spoke about the fact that stamping out wide practice (that is, custom) constitutes hardship as we shall see below.

An important early text that discussed istiḥsān is al-Shaybānī’s (189/805) al-Aṣl. Al-Shaybānī’s early form of istiḥsān, which must have resembled Abū Ḥanīfa’s, referred to the abandonment of analogical reasoning in favor of a custom or another welfare-based desired legal result. Based on tens of examples I have examined in al-Aṣl, such an abandonment was not based on a legal proof such as a ḥadīth or a different ratio legis for a new analogy.53 In one instance, al-Shaybānī argued that he abandoned analogical reasoning in favor of istiḥsān on grounds of people’s practice (ʿamal li-l-nās or amr al-nās wa-fiʿlihim).54 In another instance, al-Shaybānī clearly abandoned analogical reasoning for the welfare of foundlings, even though he did not in this case explicitly use the term istiḥsān but instead indicated “we abandon analogical reasoning” (nadaʿ al-qiyās), which in his legal writing implied istiḥsān. He argued that if someone acknowledged a “foundling” (laqīṭ) as his child but could not produce evidence, he would not be linked by analogy to someone who finds an object or an animal, where evidence is necessary. He abandoned analogical reasoning in this case so that the child would have access to paternity.55 In another instance, he abandoned analogical reasoning in favor of istiḥsān for the financial welfare of the foundling, where analogical reasoning would have denied the foundling a gift (hiba).56 In yet another example, he abandoned analogical reasoning in favor of istiḥsān due to linguistic convention (kalām al-nās).57

In al-Shaybānī usage, istiḥsān was a catchall term that included considerations of welfare, under which customary practices were subsumed since the abolition of widespread customs ran contrary to such welfare, as well as linguistic convention. He used the term to refer to his own reasoning as well as to the istiḥsān of Abū Ḥanīfa and Abū Yūsuf for instance.58 Al-Shaybānī also used maʿrūf and ʿamal in both technical and non-technical senses in the same way that Mālik used them, without assigning a higher status to the practice of Medina.59

Another source from which we can gain an understanding of what istiḥsān meant to eighth and early ninth century jurists is to be found in al-Shāfiʿī’s critique of istiḥsān. He was opposed to customs that were in tension with the sources. The dichotomy al-Shāfiʿī created between ʿilm, which inheres in the textual sources and in ijtihād (restricted to analogical reasoning in his typology), and istiḥsān makes his position abundantly clear. In his view, istiḥsān was a general term that included juristic preferences based on idiosyncrasies and customary practices that were not supported by the textual sources.60 Al-Shāfiʿī’s critique of istiḥsān in al-Umm was in part driven by a concern about the multiplicity of legal rulings based on subjective and localized practices. He thus contended that if istiḥsān were permitted, each scholar would rightfully rule according to his own reasoning, leading to multiple contradictory rules.61

The Ḥanbalī school’s historical opposition to raʾy was in part a rejection of customs that were in tension with the textual sources. There was an awareness that customary practices and the following of one’s whims are the main reasons behind legal pluralism. It was therefore understandable that part of the project of some early Ḥanbalīs was to challenge juristic opinions perceived to be contradictory to the Sunna. An early opponent of juristic differences such as the Ḥanbalī al-Barbahārī (d. 329/940–1) was unequivocal in his rejection of innovations and even analogical reasoning.62 When he discussed economic activities such as buying and selling, he asserted that they were permissible so long as they followed the Qurʾan and the Sunna of the Prophet, without change, injustice, or inequity. Otherwise, anything that contradicted the Qurʾan and Sunna should be rejected.63

Abū Bakr al-Jaṣṣāṣ (d. 370/980) did not use the term ʿurf in its technical sense. Instead, he used the term ʿamal al-nās to refer to customary practices. This suggests that the theory of custom had not stabilized until around the eleventh century when the term seems to have appeared in juristic discourse, sometime between al-Jaṣṣāṣ and al-Sarakhsī (d. 490/1096). In fact, al-Jaṣṣāṣ discussed linguistic convention extensively without referring to this phenomenon with its later term “linguistic convention” (ʿurf lughawī).64 In another discussion, he used the term “people’s custom” (ʿādat al-nās) such as selling by weights.65 Here, the term was used in a way similar to its later use and to the use of ʿurf in classical legal theory.

According to al-Jaṣṣāṣ, people’s practice was not by itself a source of normativity without the force of consensus. He thus pointed out that the bath (ḥammām) transaction was permissible even though it involved “excessive risk” (gharar) since the length of the stay and the amount of water used were not specified in the transaction. This case was an exception to analogical reasoning on the grounds of people’s practice, which was valorized through consensus. In this sense, al-Jaṣṣāṣ only allowed changes based on people’s practice to be grounded in the textual sources or consensus. Al-Jaṣṣāṣ framed this discussion of custom under the category of istiḥsān, arguing that istiḥsān’s abandonment of analogical reasoning had to be supported by the textual sources or consensus, rather than mere customary practice or welfare considerations. This was part of a process that we may call the “textualization of istiḥsān.”

The success of al-Shāfiʿī’s critique of istiḥsān, as evidenced by the defensive responses of even later Ḥanafīs and new definitions of the term that emerged in the late pre-classical and classical periods such as: “the abandonment of textual proof in favor of a stronger one,”66 meant that customs in tension with the sources were often cast aside by jurists or at least there was significant pressure on them to do so. In a word, it was increasingly difficult for customary practices to be justified through the rationalist concept of istiḥsān on its own due to the “great synthesis” between the rationalist and traditionalist modes of law making.67 What about new customs that were not approved through Prophetic reports or consensus as they emerged after the first century of the Hijra? This would be the concern of the jurists of the classical period.

To sum up our discussion so far, while Libson argued that in the formative period, there was no need to grant custom an independent legal status because customary practices could still be incorporated into the law through the ḥadīth and ijmāʿ genres,68 I have argued that customs’ entry into Islamic law was not restricted to these genres. Customary practices made their way into the law through Mālik’s concept of ʿamal and maʿrūf, as well as Abū Ḥanīfa’s istiḥsān, as evidenced by al-Shaybānī’s use of istiḥsān and al-Shāfiʿī’s attack on both methods. What happened in the classical period was a process of further evolution and a recasting of istiḥsān, rather than a break ushered in merely by the stabilization of the ḥadīth and ijmāʿ genres. This evolution was informed by the great synthesis between rationalist and traditionalist methodologies, where istiḥsān was reclaimed, textualized, and defended while giving primacy to the ḥadith literature.

Had the classical jurists’ newly recast and textualized istiḥsān been presented to al-Shāfiʿī in its new form, he would not have needed to refute it. In the Shāfiʿī school, where the eponym had famously written a strong refutation of istiḥsān, classical jurists had to negotiate the needs for evolving social and judicial customs to remain pertinent to law making with the eponym’s famous position. The challenge that classical and post-classical jurists faced was how to address change in social and judicial customs while accepting the dominant traditionalist thesis of the centrality of ḥadīth and the four-source theory. The textualization of istiḥsān made it necessary that classical legal theorists find alternative mechanisms to allow customary practices that were in tension with the law to inform legal change.

3 Custom in the Classical Period (11th–13th Centuries)

Mālik’s and al-Shāfiʿī’s utilization of ʿamal, maʿrūf, and ʿāda in a similar fashion both in technical and non-technical senses to refer to customary practices would change in the classical period when the terms ʿurf and ʿāda were used in a consistent technical sense. The verbal noun construction would enable jurists to draw a clearer line between the non-technical senses of these words (e.g., personal knowledge of an object of sale) and the technical sense of customary practice. We see the term ʿurf for instance in the work of the Ḥanafī jurist al-Sarakhsī.69

With the convergence of classical legal theory in the four Sunni schools closer to the middle of the continuum between the rationalists and traditionalists, a phenomenon that has already been observed by Islamic legal historians, later Ḥanbalīs abandoned the strict legal theory of the early traditionalists. Both sides of the debate moved closer to the middle of the continuum.70 Thus, the legal theory of someone like Ibn ʿAqīl (d. 513/1119) was a far cry from the early traditionalists, as he, for instance, accepted analogical reasoning as a source of law. He provided many definitions of istiḥsān including “abandoning analogical reasoning in favor of stronger evidence.” Another definition, which seems to be closer to the early methodology of the early rationalists, can be deduced from a report that he attributed to the Successor, Iyās b. Muʿāwiyya, who said, “Exercise analogical reasoning in cases so long as people are good but if they are corrupt, exercise istiḥsān” (qīsū al-qaḍāyā mā ṣalaḥa al-nās fa-in fasadū fa-istaḥsinū).71 This early report sounds strikingly similar to the concept of “corruption of the time” (fasād al-zamān) which would be used later in the Ḥanafī school to justify conceding some ground to customs that are in tension with the law simply because they are widely practiced and therefore their removal would entail hardship (more on this below). Ibn ʿAqīl’s position on istiḥsān was similar to al-Shāfiʿī’s position, which he summarized as follows: if abandoning analogical reasoning in favor of istiḥsān was based on proof, then it is permitted, but it is not permitted if there was no proof to support the abandonment of analogical reasoning. By his time, istiḥsān had already lost much of its negative baggage, as evidenced by reports that he cited according to which Ibn Ḥanbal and al-Shāfiʿī themselves exercised istiḥsān.72

While istiḥsān was being reclaimed by Sunnis (not just Ḥanafīs) starting in the late ninth and tenth centuries as part of the great convergence of the Sunni schools along the rationalist-traditionalist continuum, ʿamal would go beyond the customs of Medina to incorporate the customs of Muslims in the classical period of Islamic law. The Mālikī Abū al-Walīd al-Bājī (d. 474/1081) cited ʿamal regularly in his work to refer not only to the early practice of Medina in a way similar to Mālik’s usage, but also to the opinions of jurists and practices of judges in later generations. At other times, he used it to refer to the practice of his own time and place among Mālikīs in North Africa and Andalusia. The term was often used not in contradiction to the textual sources but rather on questions of ijtihād as many of the examples he cited suggest. In fact, the common way in which al-Bājī used the term was in the context of juristic disagreement, where he would present two opposing positions and inform the reader of which one was used in practice, a fact that would give preponderance to one position over another. These choices were often informed by local practices and public interest.73

From a social perspective, given the stabilization of the ḥadīth and consensus genres, social changes that ultimately led to different customs could only be accommodated through a tweak to legal theory. In the same way, as Libson explains, economic and legal considerations left their imprint on geonic customs,74 Islamic law was influenced by the customs of Muslim societies and courts. Jurists accommodated certain customs brought about by the radical socio-economic changes that took place between the thirteenth and eighteenth centuries under the Mamluk Sultanate and Ottoman Empire even when they were in tension or contradiction with Islamic law.75 How was this achieved given al-Shāfiʿī’s attack on istiḥsān and ʿamal, the main doors for the valorization of customary practices in early legal theory? The answer to this question lies in a very important legal theoretical move made by al-Juwaynī in the classical period, which would be picked up by Sunni jurists from the four schools and magnified, perhaps beyond al-Juwaynī’s own intention. This move would continue to be used throughout the post-classical period and even in contemporary “minority jurisprudence” (fiqh al-aqalliyāt) to allow Muslim minorities living in the West today, for instance, to take insurance despite the general prohibition of gharar in Islamic law.76

Al-Juwaynī (d. 478/1085) was one of the earliest Sunni legal theorists who developed the theory of maṣlaḥa, whereby certain forms of “necessity” (ḍarūra) could overrule the textual sources. Needless to say, a certain maṣlaḥa-based methodology was already in use during the formative period.77 Al-Juwaynī’s “public welfare” (maṣlaḥa) methodology involved different levels of intensity and accommodation, with the categories of “necessity” (ḍarūra) and “need” (ḥāja) being the highest levels whose accommodation was necessary to achieve maṣlaḥa. The most important move that al-Juwaynī made that would prove essential to the accommodation of customs in tension or contradiction with Islamic law and its sources is the legal maxim that “general need is treated in the same way as individual (or specific) necessity” (al-ḥāja al-ʿāmma tanzil manzilat al-ḍarūra al-khāṣṣa). General needs include, for instance, the need for all people to buy and sell, which is also presented by jurists as a custom. This communal and general practice, even though it did not constitute a matter of life and death, was treated in the same way according to al-Juwaynī as an “individual necessity” affecting one person. One example of individual necessity (ḍarūra khāṣṣa) is a person who must eat carrion to save her or his life owing to the absence of permissible food options. This individual necessity only affects a person’s life.

Al-Juwaynī, whose operating premise was that widely practiced customs constituted a social need, elevated social customs that people agreed were essential to their social organization to the level of necessity. These needs could therefore modify Islamic legal rules in cases of contradiction.78 It was also an assumption of many premodern jurists including al-Juwaynī that the hardship involved in trying to remove widely practiced customs is considered so severe that the law itself may be changed to accommodate such social customs on grounds of maṣlaḥa. An important assumption underpinning al-Juwaynī’s approach to maṣlaḥa is that the Muslim community was in moral decline, where certain questionable and problematic customary practices dominated and therefore a certain accommodation was required to achieve public welfare. Again, one can see an early version of the concept of “corruption of the time” (fasād al-zamān) in al-Juwaynī’s discussion of ḥāja, where he argued that at a time when the forbidden (in the form of customs) dominates which, in his estimation, was the reality of his own time, people are allowed to take from the forbidden what they needed.79 Recall the example cited above by Ibn ʿAqīl. In other words, widespread corruption itself validates some of these “corrupt customs” because despite being somehow impure, removing these widely practiced norms would constitute hardship. The link between need/necessity and custom can be sensed in Islamic juristic discourse both of the premodern and modern periods.

Not all rules were on the same level in terms of the ability of “necessity” and “general need” to overrule them on grounds of maṣlaḥa. According to al-Juwaynī, unlike eating carrion, he considered murder and fornication to be so heinous that their prohibition may not be overruled by necessity. Say someone were to threaten another person that if she does not kill a third person, she would be killed herself. The one under duress must abstain from murder since necessity cannot be invoked in such a case as an argument to justify unlawful killing.80 Regardless of the scope of al-Juwaynī’s theory and the types of customs it valorized under the concept of “general needs,” later jurists understood his theory to allow all sorts of customary practices that are in tension or contradiction with the rules of jurists. However, his own student, al-Ghazālī did not share this view.

While al-Juwaynī opened up a space for customary practices to modify the law through the concept of “general need,” al-Ghazālī’s (d. 505/1111) typology of ḍarūra did not contain such license. There is a clear line between the “necessities” (ḍarūriyyāt) and “needs” (ḥājiyyāt) in his tripartite typology of maṣlaḥa, with the third level being “improvements” (taḥsīniyyāt).81 Customary practices that were in tension with the law did not have a way within al-Ghazālī’s typology to overrule the textual sources. Al-Ghazālī agreed with al-Juwaynī on the impermissibility of killing a Muslim unlawfully in cases of necessity. One famous example he cited was the case of Muslims who lay siege to a non-Muslim town where there are innocent Muslim prisoners. If the Muslims abstain from attacking lest they kill the Muslim prisoners as collateral damage, the unbelievers would get reinforcements and kill all the Muslims in the abode of Islam (la-qatalū kāfat al-Muslimīn wa-ghalabū ʿalā dār al-Islām). In order for Muslims to legitimately attack and incur the collateral damage of the prisoners, two things have to obtain: (1) certainty of the non-Muslims’ ability to receive reinforcements and attack the Muslims; (2) that the non-Muslims would kill all Muslims (“all Muslims” here may mean all Muslim combatants, who could repel the attack on the abode of Islam, rather than all Muslims). Needless to say, this hypothetical case is highly stylized and unlikely to ever obtain in reality since it is unimaginable by al-Ghazālī’s time that all Muslims (or all Muslim combatants) in the abode of Islam would be annihilated owing to such a military decision.82

What clarifies the hypothetical nature of this example is another more likely example similar to the trolley problem, according to which a ship would sink unless one person is thrown into the sea to save the rest. Al-Ghazālī did not allow maṣlaḥa to justify the unjust killing for two reasons: (1) there is no certainty that killing one person would save the rest; and more importantly, (2) the expected damage should the ship sink is limited to those on the ship not to all Muslims. In other words, if all Muslims on the ship die, the abode of Islam would still exist.83 In line with al-Shāfiʿī’s methodology, al-Ghazālī refuted the Ḥanafī utilization of istiḥsān. He concluded his discussion of istiḥsān and maṣlaḥa by saying that neither of them is a fifth source of law, reiterating al-Shāfiʿī’s famous phrase “those who exercise istiḥsān, appoint themselves as legislators” (man istaḥsana fa-qad sharraʿa). Showing the utilitarian link between istiṣlāḥ and istiḥsān, he added a form similar to al-Shāfiʿī’s, “those who exercise istiṣlāh (a variant of maṣlaḥa), appoint themselves as legislators” (man istaṣlaḥa fa-qad sharraʿa). He set the bar for what constituted ḍarūra so high that under his theory, it was unlikely that a widespread social practice would overrule the four sources.84

The positions of al-Juwaynī and al-Ghazālī would continue to compete with one another throughout the post-classical period. In some cases, custom and istiḥsān would be prohibited by scholars in line with al-Shāfiʿī’s approach but then necessity or even need would be invoked instead to justify customary practices due to the corruption of the time.

4 The Post-Classical Matrix of Custom (13th–20th Centuries)

In the post-classical period, juristic discourses in the four Sunni schools suggest that the main reason for accommodating custom was to relieve hardship since stamping out a wide customary practice represented harm to society. Custom made its way into the law in the classical period through the concepts of istiḥsān and maṣlaḥa, even in the Shāfiʿī school, where the eponym of the school rejected non-textual sources such as istiḥsān.85 Accommodating practices in tension with the law represented maṣlaḥa and customary practices were justified through the levels of “necessity” (ḍarūra) and “need” (ḥāja). Other related terms that used the same idea include “widespread affliction” (ʿumūm al-balwā) and “corruption of the times” (fasād al-zamān).86

In the post-classical period, we see some discursive changes from the position of al-Shāfiʿī. One of the definitions of istiḥsān that al-Āmidī (d. 631/1233) attributed to some legal theorists is the abandonment of analogical reasoning in favor of the textual sources or ʿāda. In this sense, ʿāda is given a similar status to the textual sources. According to al-Āmidī, the disagreement over istiḥsān was terminological and if what the supporters of istiḥsān meant was abandoning a ruling due to a “proof” (dalīl), such as ʿāda in the sense of what the “religious and political authorities” (ahl al-ḥall wa-l-ʿaqd) agreed upon, then istiḥsān was acceptable. However, he rejected the ʿāda of the laity, which in his estimation did not permit the abandonment of a source of law (dalīl sharʿī).87 In other words, departures from the textual sources and analogical reasoning were permitted so long as the judicial and political authorities valorized them.88

A similar example of customs that were valorized by the judicial authorities, rather than the laity, was mentioned by al-Nawawī (d. 676/1277), when he discussed the sale of an item that was not yet owned. One type of such a sale known as salam was excepted from the general Prophetic prohibition of selling an item that one does not own on the grounds of maṣlaḥa.89 Although Muslim jurists assumed that this valorization of certain customs took place during the Prophet’s lifetime, many post-classical jurists used this example to justify the later valorization of specific customs in the post-Prophetic period. Others objected to such practices, assuming that only the Prophet and the Companions were capable of such valorization since their behavior was normative.

Social and judicial customs in tension with the sources continued to face opposition from many jurists of the four schools, shifting their focus on accommodating such practices on the grounds of necessity. This meant that the high bar established by al-Ghazālī for what constituted necessity had to be lowered in order to accommodate social and judicial customs in tension with the sources of law. It was al-Juwaynī’s elevation of need to necessity on the grounds of changing times and corruption of the time that was utilized by later jurists to open a door for custom to modify the law. A radical iteration of this move can be seen in the work of the Ḥanbalī jurist Najm al-Dīn al-Ṭūfī (d. 716/1316), who considered “customs” (ʿādāt) to be the tenth source of the law, out of a total of 19 sources. According to him, there is an intimate relationship between custom and maṣlaḥa. It is ʿurf that determines what constitutes maṣlaḥa in a given community. Again, the connection between what is “customarily done” and what is “good” for society is emphasized. We only know what is good for a given society through what is customarily considered as such. He cited examples in which the text was overruled in favor of custom (ʿāda) on grounds of maṣlaḥa.90

In his justification of maṣlaḥa, al-Ṭūfī engaged the debate between the Muʿtazilīs and traditionalists over whether God is obliged to do what is best for His creation (riʿāyat al-maṣlaḥa), as part of the contestation over God’s justice. The traditionalists rejected any obligation whereas the Muʿtazilīs argued that He has an obligation toward His creation to care for its welfare. Al-Ṭūfī’s position was that since God bound Himself to it, this is an obligation that comes from God rather than one that is forced upon Him (wājiba minhu lā ʿalayhi).91 Elevating maṣlaḥa to the level of obligation from God helped him make the argument that human welfare is itself a source of law, superior to ijmāʿ and the textual sources. Al-Ṭūfī’s concept of maṣlaḥa was a general sense of public welfare that could trump the textual sources and consensus without needing a high bar of life and death as al-Ghazālī’s theory entailed. It was the obligation to remove any “harm” (ḍarar) or accrue benefit. It is telling that al-Ṭūfī ignored al-Ghazālī’s high bar for when maṣlaḥa was allowed to trump the textual sources, instead treating it as a primary source of law. According to al-Ṭūfī, the determination of custom and social welfare relates to transactions, rather than rituals. Unlike “transactions” (muʿāmalāt), change of “rituals” (ʿibādāt) falls not under custom and its concomitant social welfare but rather under “innovation” (bidʿa). In transactions, maṣlaḥa prevails over the textual sources and consensus, whereas the textual sources and consensus prevail in matters of rituals.92

A less radical approach that tied custom to maṣlaḥa comes from the Mālikī school. Abū Iṣḥāq al-Shāṭibī (d. 790/1388) discussed al-Ghazālī’s five “necessities” (religion, life, progeny, property, and mind).93 Al-Shāṭibī’s approach was different from al-Ṭūfī’s in that the former restricted the types of benefits to those intended by the Legislator which can be discovered inductively from the sources, whereas al-Ṭūfī’s approach gives more agency to society to determine what constitutes maṣlaḥa.94 Al-Shāṭibī argued that the two reasons why a forbidden act may be permitted are for necessity (ḍarūra) and need (ḥāja), citing the ḥammām transaction as an example. He mentioned a debate among jurists over whether “hardship” (ḥaraj or mashaqqa), which was based on “need,” should be allowed to modify the law. One view was that hardship should play a role in legal change, while the other opposed such a role on the ground that hardship itself is part and parcel of the duties of religious obligation (taklīf).95

According to al-Shāṭibī, there is no clear measure by which one can gauge “hardship” (mashaqqa). It is socially situated and is therefore tied to custom as it varies from one society to another.96 Al-Shāṭibī’s position on picking and choosing less stringent rules from among the different Sunni schools, which was itself often driven by customary practices, was similar. He was fully aware that some jurists “made claims of necessity and need” in order to allow people to take advantage of “licenses” (rukhaṣ), when in fact there was no such necessity. He lamented that such invocations of “necessity” were often false and could lead to the destruction of the madhhab (the Mālikī school) and all the other schools for that matter.97

Al-Shāṭibī cited the Mālikī jurist, Abū Bakr Ibn al-ʿArabī (d. 543/1148), as saying: “If hardship (ḥaraj) is common among the people, it should be removed, but if it is individual/specific (khāṣṣ), we do not pay attention to it, though it is important to Shāfiʿī legal theorists.” According to al-Shāṭibī, departure from what is customary (muʿtād) by definition signifies hardship. Without such a departure, hardship does not obtain.98 Since the objective of the Sharia is the welfare of people, he continued, it is necessary for customs (ʿawāʾid) to be considered part of Sharia because abandoning custom is a cause of hardship.99 It was the jurists’ job to sort out customary practices that are acceptable on grounds of maṣlaḥa from unacceptable innovations (bidʿa).100 In fact, al-Shāṭibī cited a view among some legal theorists that consideration of maṣlaḥa is not specific to Islam. It is a universal tendency that had existed in all religious traditions (fī kulli milla).101 In addition to the theory of maṣlaḥa, the term ʿamal retained a high status as a source of custom in the Mālikī school.102

To sum up, in al-Shāṭibī’s theory of maṣlaḥa, customs were divided into those that the Lawgiver had approved or disapproved and those over which the Sharia is silent, with the latter being a category of rules based on non-contradiction with the law and whose function was to fill lacunae unaddressed by the Sharia, including, for instance, manners of eating, drinking, and dressing. This type of custom was uncontroversial.103 The former may be in tension with the law, but it can modify it in order to preserve the objectives of the Lawgiver in cases of necessity and need, with the latter often referring to customs whose abolition would constitute hardship. While there was consensus on the ability of necessity to overrule the law, there was disagreement over whether hardship could be used as an argument to modify the law through the abandonment of the textual sources and analogical reasoning.

When al-Zarkashī (d. 794/1392) addressed social customs under what he called things that “people are accustomed to without opposition” (iṭbaq al-nās min ghayri nakīr), he drew a distinction between customs that took place during the Prophet’s life or during the Companion and Successor generations, and customs that took place after them. According to him, the customs of the Prophet, Companions and Successors were the foundations of consensus, whereas in later generations, many innovations (bidʿa) were introduced and therefore such customs were not normative.104

Despite al-Zarkashī’s opposition to allowing customs to trump the textual sources, he cited Ibn al-Munayyir (d. 683/1284) as pointing out the impossibility of al-Ghazālī’s example, which we mentioned above. According to Ibn al-Munayyir, al-Ghazālī’s example violated both ʿāda, since we can never be certain of future events (with respect to the siege example), and the textual sources since God said that the Umma would never be uprooted. Al-Zarkashī also cited an example of maṣlaḥa in which al-Shāfiʿī said that if an animal whose blood does not flow falls into a small amount of water, it rendered the water impure. This is the result of analogical reasoning. Another view attributed to al-Shāfiʿī considered the water to be pure, which al-Zarkashī explained was based on what is more beneficial to people.105 Without supporting one of the two positions attributed to al-Shāfiʿī, al-Zarkashī may be read as subtly casting doubt on the position that public welfare (and therefore customary practices) can never overrule one of the sources of law since he presented it as a disputed issue within the school. However, al-Zarkashī’s final verdict was that a Muslim should follow the textual sources and abandon custom.106

Al-Zarkashī, however, created another site for custom to modify the law in times of contradiction through “legal maxims” (al-qawāʿid al-fiqhiyya). He cited al-Juwaynī as saying that the general need is treated as an individual necessity. He went further by arguing that the individual/specific need (which relates to a subsection of society or an individual) is also treated as a necessity in allowing the forbidden.107 In other words, although he opposed istiḥsān, an avenue through which custom could make its way into the law, he allowed custom through (general need) and even individual utility. This position is similar to his view on “pragmatic eclecticism,” (“picking and choosing less stringent juristic views” itself a judicial custom in the Mamluk and Ottoman periods) where he considered it permissible only in times of need or necessity.108

Similar to al-Zarkashī, Tāj al-Dīn al-Subkī (d. 771/1370) presented the classical definitions of istiḥsān: “proof that the mujtahid knows but cannot express,” “abandoning analogical reasoning in favor of stronger analogy,” and “abandoning proof in favor of custom (ʿāda).” Al-Subkī’s commentator, Jalāl al-Dīn al-Maḥallī (d. 864/1459), explained that abandoning proof in favor of ʿāda is done to achieve maṣlaḥa. He gave the classical example of paying for a visit to the bath (ḥammām) even though this goes against the prohibition of transactions involving “excessive risk” (gharar) since the length of the stay and the amount of water used are not specified in the transaction. This proof was abandoned in favor of customary practice, which allowed this risk. Even though customary practice represented the source of this change to the general prohibition of gharar, it was the Prophet who approved this exception since it was practiced during his life and therefore this new rule does not in fact contradict the textual sources. This suggests that only customary practices valorized in the Prophetic moment through ḥadīth and consensus were allowed to modify the textual sources, but the same may not be true for later customs. Both Tāj al-Dīn al-Subkī and al-Maḥallī agreed that later customs that had not been valorized by ḥadīth or consensus could not trump the sources of law. They did not make exceptions for analogical reasoning or for general commands (as many later Ḥanafīs did), both citing al-Shāfiʿī’s famous rebuke that equates istiḥsān with appointing oneself in the place of the Lawgiver.109

The invocation of ḍarūra to justify the valorization of customary practices in tension with the law would reappear clearly in the Ashbāh of the Shāfiʿī al-Suyūṭī (d. 911/1505). He argued that: “When “need” (ḥāja) is general, it is treated like “necessity (ḍarūra).”110 Given the assumption that the abolition of a widespread custom represents hardship, this legal maxim justified allowing customs to modify the sources through the door of “need” which is treated as a necessity. Hardship was used in the post-classical period to justify all sorts of controversial practices. In one instance, Taqī al-Dīn al-Subkī (d. 756/1355) even used the term ḍarūra in a way that departed completely from the life and death sense devised by al-Juwaynī and al-Ghazālī by saying that picking and choosing legal opinions based on their utility was allowed with matters of necessity, but this necessity is described as “a tiring necessity” (ḍarūra arhaqathu), suggesting that the term had been demoted below al-Ghazālī’s high bar for necessities to a mere hardship. This hardship was sometimes general, representing custom in the proper sense, but at other times it was a personal hardship, which jurists described as (specific/individual need) “ḥāja khāṣṣa.”111

By the post-classical period, according to Libson, Ḥanafī jurists such as Ibn Nujaym al-Miṣrī (d. 970/1563) had transformed custom into an independent source of law. Libson’s judgement was based on a quote by Ibn Nujaym to that effect. According to Ibn Nujaym, legal theorists have made custom into a source of law. Only “general custom” (ʿurf ʿāmm), which is common to all localities, rather than “specific custom” (ʿurf khāṣṣ), such as the custom of a city or a group of people, leads to the abandonment of analogical reasoning.112 In fact, the Ḥanafī school took al-Juwaynī’s maxim the furthest as suggested by Ibn Nujaym’s iteration of the maxim, which gave both general and specific/individual need the power of necessity.113

This trend would continue into the nineteenth century. In the Shāfiʿī school, in his commentary on Tāj al-Dīn al-Subkī and Jalāl al-Dīn al-Maḥallī, al-ʿAṭṭār (d. 1250/1835) made a link between ʿāda and necessity (ḍarūra) by pointing to the legal maxim that necessities permit the impermissible. Without engaging al-Ghazālī’s high bar for what constitutes necessity, he told the reader that the role of custom in changing the law pertained to the question of necessity and that this issue was subject to disagreement. He then cited al-Badakhshī as saying that al-Shāfiʿī “exaggerated” in his rejection of istiḥsān.114

In line with Ibn Nujaym’s approach, Ibn ʿĀbidīn (d. 1252/1836) cited al-Zaylaʿī’s view that did not allow “widespread affliction” (ʿumūm al-balwā) to overrule the textual sources and drew a distinction between ʿurf that contradicts a textual source in its entirety and one that only contradicts it in part. An example of the former is a custom that permits the consumption of alcohol, which was prohibited by a textual source. This type of custom is not permitted to contradict the textual sources. The other type is ʿurf that contradicts a general textual source only in some of its elements. In this case, if the ʿurf is general it can qualify or particularize the general textual source. One example is the “manufacturing” (istiṣnāʿ) contract, which is allowed on grounds of ʿurf as an exception to the general prohibition of not selling what one does not own, a prohibition that is based on a ḥadīth. If general ʿurf contradicts analogical reasoning, it can overrule it such as the abandonment of analogical reasoning in the ḥammām transaction, making it an exception to the general prohibition of gharar. According to Ibn Nujaym and Ibn ʿĀbidīn, only general ʿurf can overrule the general textual sources and analogical reasoning. This is the view of the majority of jurists, though they added that there was a minority that allowed specific ʿurf to have the same force.115

Moving beyond contradiction with the textual sources, Ibn ʿĀbidīn argued that ʿurf could change many of the laws based on ijtihād. That is, views over which there is disagreement among jurists. In this case, ʿurf modifies ijtihād whether it was a general or a specific custom. He linked ʿurf to ḍarūra by suggesting that if something is widely practiced, prohibiting it would constitute hardship. This is the easiest type of contradiction where the mujtahids themselves would have had different views if there was a “new custom” (ʿurf muḥdath) to the contrary. One example is Abū Ḥanīfa’s view that it is not permitted to receive payments for teaching the Qurʾan. The subsequent custom was to pay for such services, which jurists permitted in order to encourage the teaching of the Qurʾan. Another example of changing ʿurf is preventing women from praying in the mosque during the communal prayer, which was permitted during the Prophet’s time, yet later prohibited due to the “corruption of the times” (fasād al-zamān) and “necessity” (ḍarūra). In his discourse, custom, maṣlaḥa and ḍarūra were interlinked in a manner that is very different from al-Ghazālī’s conception of ḍarūra.116 This Ḥanafī tradition would continue into the modern period and would be drawn upon by the nineteenth-century drafters of the Ottoman Islamic legal code known as al-Majalla.117

5 The Modern Egyptian Distinction between ʿUrf and ʿĀda

As we have seen above, most premodern jurists did not make a distinction between ʿurf and ʿāda. For instance, the influential nineteenth-century Ḥanafī jurist Ibn ʿĀbidīn treated them as synonyms.118 How then did Egyptian lawyers in the modern period devise the distinction common in modern law books in Arabic? With the influence of French jurisprudence, the two terms were transposed on the French legal discussion of coutume and habitude, where the community’s sense of the binding nature or lack thereof of a common practice creates the distinction. According to Jean Carbonnier, coutume refers to practices that are repeated and constituted by habits (habitude). Coutume has material qualities such as continuity over time and generality, as well as psychological qualities. That is, coutume is considered binding by the people, whereas habitude lacks the sense of communal obligation.119 This French distinction between coutume and habitude was transposed into modern Egyptian jurisprudence, where for instance in the first year of Cairo University’s law school, students are taught this distinction with coutume being translated as ʿurf and habitude as ʿāda.120

6 Conclusion

In this essay, I have sought to contribute to the debate over the evolution of the theory of custom in the earliest Islamic legal texts. By offering a conceptual map of some early legal texts such as al-Muwaṭṭaʾ, al-Risāla, al-Umm, and al-Aṣl, I have argued that the role of custom was disputed in the earliest texts of Islamic law. The approaches of Abū Ḥanīfa, Mālik, al-Shaybānī and al-Shāfiʿī varied significantly on the question of custom and its relationship to the textual sources. In Abū Ḥanīfa’s practice of istiḥsān as well as Mālik’s reliance on the ʿamal of Medina, social and judicial customs were essential sources of law. In Mālik’s methodology, customary practices were so entangled with the sources of law that it was not possible to see a tension with the divine command. It was a time when society, its scholars, and the divine were not clearly demarcated to allow for a perception of tension between the social and divine, between the sources of law and society.

Through his critique of both istiḥsān and ʿamal, al-Shāfiʿī insisted on disentangling this knot to separate the social from the divine, the pure from the corruptible. This does not mean that al-Shāfiʿī’s methodology ignored custom in law making. It rather means that custom was only allowed to play a role so long as there was no contradiction with the four sources of law. Al-Shāfiʿī’s intervention was only sustainable while the ḥadīth literature was still in flux, assuming that some of the ḥadīth literature represented local customs without falling into the trap of complete skepticism about the provenance of this genre. With the stabilization of the ḥadīth literature and the Sunni schools’ convergence around different iterations of the four-source theory (Qurʾān, ḥadīth, consensus, analogical reasoning), social and judicial customs had to contend with a new reality.

Later Shāfiʿīs had to negotiate the legacy of their eponym. They rejected istiḥsān, but some made minor modifications to al-Shāfiʿī’s position, even arguing that he “exaggerated” in his rejection of istiḥsān. However, there was a theoretical convergence of sorts among the four Sunni schools in the way they sought to offer justifications for social and judicial customs in tension with the sources of law by relying on necessity and social welfare. We see this move in al-Juwaynī and other later Shāfiʿīs such as al-Suyūṭī’s work on “legal maxims” (qawāʿid fiqhiyya) in which he argued that widespread practice should be elevated to the level of necessity. We also see it in the Ḥanafī school’s concept of “widespread affliction” (ʿumūm al-balwā), in al-Ṭūfī’s utilization of maṣlaḥa, in al-Shāṭibī’s theory of maṣlaḥa, and in the post-formative Mālikī concept of ʿamal. To be sure, al-Ṭūfī’s concept of maṣlaḥa is not representative of the larger Ḥanbalī tradition and therefore more work needs to be conducted to expand my findings and to understand the ways in which post-classical jurists dealt with social change without challenging the sources of law head-on.

My findings offer nuance to Libson’s assumption that, functionally, customs were justified through the ḥadīth genre and consensus. I argue, instead, that the use of custom in law making was an essential part of the legal methodology of some of the jurists of the formative period. I also elaborate on Libson’s claim that necessity played an important role in accommodating customs in the post-classical period by exploring a hitherto understudied legal maxim that I traced back as early as al-Juwaynī. This legal maxim, which elevated social needs to the level of necessity, opened the door wide for customary practices to modify the law. Premodern jurists often equated these widely practiced social needs (ḥāja ʿāmma) with custom in their discussions.

The legal maxim “necessities permit the forbidden” (al-ḍarūrāt tubīḥ al-maḥẓūrāt) continued to be invoked in the four Sunni schools but elevating “need” to the level of “necessity” was widely accepted in both the Shāfiʿī and Ḥanafī schools. In the larger Mālikī and Ḥanbalī schools, this move seems to have received less attention, except in the works of mavericks such as al-Ṭūfī and to a lesser degree al-Shāṭibī.

My findings also offer a counter argument to Hallaq’s critique of the codification of Islamic law in the modern period where, as he argues, ḍarūra was used as a legal theory. Hallaq presents this modern development as a relapse of Islamic law and a sign of modern incoherence to be contrasted with the sophistication of premodern uṣūl al-fiqh.121 I hope to have shown that ḍarura has always been utilized in Islamic law to avoid the rigidity of the successful four-source theory of law, which had a lasting impact on Sunni juristic discourse in the post-formative period. Many aspects of the rationalist legal methodologies of Abū Ḥanīfa and Mālik continued throughout Islamic legal history, albeit under new categories.

In the modern period, al-Juwaynī’s move is routinely invoked to justify modern discourses and contingencies. The European Council for Fatwa and Research (ECFR) relied on the premodern legal maxim that elevates need to necessity in a fatwa permitting the gharar inherent in modern insurance transactions citing al-Juwaynī’s maxim: “the general need is treated as an individual necessity.”122 Insurance contracts in this sense represent a new custom in Muslim societies (even where Muslims are a minority), which are justified through the same mechanism of public welfare inherent in the concepts of necessity and need. In line with the dominant post-classical approach to custom, contemporary Muslim jurists have not attempted to endow custom with independent legislative power, relying instead on exigency. They have also continued to assume that the valorization of custom lies with the jurists, rather than with society.

*

Ahmed Fekry Ibrahim, Assistant Professor of Islamic law at McGill University. Special thanks to my research assistants, Ahmad Munir and Omar Edaibat for their research help. I also thank the Social Sciences and Humanities Research Council of Canada (SSHRC) for providing me with the funding necessary to complete this project. I am grateful to the anonymous reviewers and to Asad Ahmed for their helpful comments.

1

John Griffiths, “What Is Legal Pluralism?,” The Journal of Legal Pluralism and Unofficial Law 24 (1986): 1; Brian Z. Tamanaha, “The Folly of the ‘Social Scientific’ Concept of Legal Pluralism,” Journal of Law and Society 20:2 (1993): 192–217; Ido Shahar, “Legal Pluralism,” The Oxford Encyclopedia of Islam and Law (Oxford, England: Oxford Islamic Studies Online, March 18, 2017), http://www.oxfordislamicstudies.com; Brian Z. Tamanaha, Caroline Mary Sage, and Michael J.V. Woolcock, Legal Pluralism and Development: Scholars and Practitioners in Dialogue (Cambridge; New York: Cambridge University Press, 2012).

2

Gordon R. Woodman, “Legal Pluralism and the Search for Justice,” Journal of African Law 40:2 (1996): 156–59; Griffiths, “What Is Legal Pluralism?”; Murielle Paradelle, “Legal Pluralism and Public International Law: An Analysis Based on the Interntational Convention on the Rights of the Child,” in Legal Pluralism in the Arab World, ed. Baudouin Dupret, Maurits Berger, and Laila Al-Zwaini (The Hague; Boston: Kluwer Law International, 1999), 97–112; Ido Shahar, “Legal Pluralism and the Study of Shariʿa Courts,” Islamic Law and Society 15:1 (2008): 112–41; Gordon R. Woodman, “The Idea of Legal Pluralism,” in Legal Pluralism in the Arab World, ed. Baudouin Dupret, Maurits Berger, and Laila Al-Zwaini (The Hague; Boston: Kluwer Law International, 1999), 3–19; Shahar, “Legal Pluralism and the Study of Shariʿa Courts”; Shahar, “Legal Pluralism.”

3

According to Tamanaha, without the state the term “law” loses its meaning as it becomes synonymous with “normative order,” which may include moral and political norms, customs, habits, and rules of etiquette. Instead, he proposes to use alternative terms such as normative pluralism or rule system pluralism. Tamanaha, “The Folly of the ‘Social Scientific’ Concept of Legal Pluralism,” Journal of Law and Society 20:2 (1993): 192–217.

4

On legal pluralism and the relationship between jurists and the state in Islam, see Sherman A. Jackson, “Legal Pluralism between Islam and the Nation-State: Romantic Medievalism or Pragmatic Modernity?,” Fordham International Law Journal. 30:1 (2006): 158–76.

5

For examples of studies dealing with customary law in the modern period, see, for instance, R.B. Serjeant, Customary and Shariʾah Law in Arabian Society (Hampshire: Variorum, 1991); Aharon Layish, Sharīʾa and Custom in Libyan Tribal Society: An Annotated Translation of Decisions from the Sharīʾa Courts of Adjābiya and Kufra (Leiden: Brill, 2005); Aharon Layish, “Interplay between Tribal and Sharʿī Law: A Case of Tibbāwī Blood Money in the Sharīa Court of Kufra,” Islamic Law and Society 13:1 (2006): 63–75; Frank H. Stewart, “Introduction,” Islamic Law and Society 13:1 (2006): 1–5; Nurit Tsafrir, “Arab Customary Law in Israel: Sulha Agreements and Israeli Courts,” Islamic Law and Society 13:1 (2006): 76–98; Barbara Drieskens, “A Cairene Way of Reconciling,” Islamic Law and Society 13:1 (2006): 99–122; Hans Christian Korsholm Nielsen, “State and Customary Law in Upper Egypt,” Islamic Law and Society 13:1 (2006): 123–51.

6

Following in the footsteps of many purists, the well-known Ottoman purist, Birgivī, dedicated a section of his al-Ṭarīqa al-Muḥammadiyya to the question of “innovation” (bidʿa). This concept intersects with some examples of “specific custom” (ʿurf khāṣṣ), which often refers to geography such as a city and less frequently to a smaller social grouping. This specific custom may represent a bad innovation that must be discarded. There is a process of valorization of social practice to determine its scope, a fact that has an impact on its applicability and its harmony with the textual sources. If the practice falls short of valorization, it qualifies as forbidden bidʿa category. According to Birgivī, forbidden innovation relates to rituals (ʿibādāt) and beliefs (iʿtiqādāt), but innovation in habits (ʿāda) is permitted, so long as it does not contradict the sources. Muḥammad Birgivī, Al-Ṭarīqa Al-Muḥammadiyya wa-l-Sīra Al-Aḥmadiyya, ed. Muḥammad al-Nadawī (Damascus: Dār al-Qalam, 2011), 51–56.

7

Ayman Shabana, Custom in Islamic Law and Legal Theory: The Development of the Concepts of ʿurf and ʿādah in the Islamic Legal Tradition, Palgrave Series in Islamic Theology, Law, and History (New York, N.Y: Palgrave Macmillan, 2010), 1–5; Jalāl al-Dīn al-Suyūṭī, Al-Ashbāh wa-l-Naẓāʾir Fī Qawāʿid Wa-Furūʿ Fiqh Al-Shāfiʿiyya (Beirut: Dār al-Kutub al-ʿIlmiyya, 1983), 90.

8

According to al-Wansharīsī (d. 914/1509), for instance, ʿamal referred to the practice of his times in North Africa and Andalusia “our land” (bi-baladinā). See Shabana, Custom in Islamic Law and Legal Theory, 156–57; Aḥmad b. Yaḥyā al-Wansharīsī, Al-Miʿyār Al-Muʿrib wa-l-Jāmiʿ Al-Mughrib ʿan Fatāwā Ahl Ifrīqiyā wa-l-Andalus wa-l-Maghrib, ed. Muḥammad Ḥajjī, 1st ed. (Rabat: Wizārat al-Awqāf wa-l-Shuʾūn al-Islāmiyya li-l-Mamlaka al-Maghribiyya, 1981), 6:512; Abū al-Qāsim Ibn Juzzī al-Ghirnāṭī, Taqrīb Al-Wuṣūl Ilā ʿIlm Al-Uṣūl, ed. Muḥammad al-Mukhtār al-Shinqīṭī, 2nd ed. (Medina: NP, 2002), 399–420.

9

Ibid., 5.

10

Hallaq uses the term “author-jurist” to refer to authors of juristic discourse, the framers of the law. I use “author-jurists” and “jurists” interchangeably to mean those who articulated the law, in contradistinction to judges, who by the thirteenth century were required to follow the discourse of jurists in their court adjudication. This distinction is important because it was the legal manuals penned by jurists, rather than the precedent of judges, that constituted the normative doctrine of Islamic law. Unlike Hallaq, however, I include jurisconsults (muftis), who authored non-binding legal opinions known as fatwas, under this category. These functional categories often intersected and overlapped since many jurists functioned as author-jurists and judges simultaneously. On author-jurists, see further Wael B. Hallaq, Authority, Continuity, and Change in Islamic Law (Cambridge, UK: Cambridge University Press, 2001), 166–235.

11

Miriam Hoexter, “Qāḍī, Muftī and Ruler: Their Roles in the Development of Islamic Law,” in Law, Custom, and Statute in the Muslim World, ed. Ron Shaham (Leiden: Brill, 2006), 67–85.

12

Zayn al-Dīn Ibn Nujaym, Al-Ashbāh wa-l-Naẓāʾir, ed. Muḥammad Muṭīʿ al-Ḥāfiẓ (Damascus: Dār al-Fikr, 1999), 82–83.

13

In Western legal traditions such as the common law, there is an important difference between mediation and arbitration. The result of mediation is not binding on the parties involved, whereas the result of arbitration is binding on them. The term taḥkīm refers to both mediation and arbitration. Another term that is used for reaching settlements outside of the scope of Islamic law is “reconciliation” (ṣulḥ), which is achieved by parties to a legal conflict (often without mediation, although it can be accompanied by mediation). Kamāl al-Dīn Ibn al-Humām and Burhān al-Dīn Al-Marghinānī, Sharḥ Fatḥ Al-Qadīr (Beirut: Dār al-Kutub al-ʿIlmiyya, 2003), 7:298.

14

Some jurists were concerned that the laity may choose to resolve their disputes through ṣulḥ, rather than relying on Islamic law. The Egyptian Ḥanafī jurist Ibn al-Humām (d. 861/1457) attributed a view to Shams al-Aʾimma al-Ḥalawānī (d. 448/1056) and Abū ʿAlī al-Nasafī (d. 487/1094) that it should be known to jurists that all areas of law except for qiṣāṣ and ḥudūd may be subject to arbitration/mediation, but this information should not be made public in fatwas lest ignorant people should take advantage of it, leading to the destruction of the Ḥanafī madhhab. No such concern about competition between arbiters and qāḍīs could have conceivably existed under the early system of Islamic law of the first two centuries before the professionalization of the judiciary. Ibid.

15

For a study on custom in the Mālikī school, see ʿUmar ʿAbd al-Karīm al-Jaydī, Al-ʿUrf wa-l-ʿAmal fi l-Madhhab Al-Mālikī Wa-Mafhūmuhumā Ladā ʿUlamāʾ Al-Maghrib (Rabat: Maṭbaʿat Fuḍāla, 1982), 167–94.

16

Gideon Libson, Jewish and Islamic Law: A Comparative Study of Custom during the Geonic Period (Cambridge, Mass.; London: Harvard University Press, 2003), 69–77.

17

Felicitas Opwis, “Maṣlaḥa in Contemporary Islamic Legal Theory,” Islamic Law and Society 12:2 (2005): 187, n. 19; On maṣlaḥa, see further Felicitas Opwis, Maṣlaḥa and the Purpose of the Law: Islamic Discourse on Legal Change from the 4th/10th to 8th/14th Century (Leiden; Boston: Brill, 2010).

18

Shabana, Custom in Islamic Law and Legal Theory, 33.

19

For a critique of the thesis that al-Shāfiʿī created the four-source theory in his Risāla, see Joseph E. Lowry, “Does Shāfiʿī Have a Theory of ‘Four Sources’ of Law?,” in Studies in Islamic Legal Theory, ed. Bernard G. Weiss (Leiden; Boston: Brill, 2002), 23–50; Joseph E. Lowry, Early Islamic Legal Theory the Risāla of Muḥammad Ibn Idrīs Al-Shāfiʿī (Leiden; Boston: Brill, 2007).

20

Libson, Jewish and Islamic Law, 68–79.

21

Libson, Jewish and Islamic Law, 250–51, n. 12.

22

On these institutional changes, see further Ahmed Fekry Ibrahim, “Rethinking the Taqlīd Hegemony: An Institutional, Longue-Durée Approach,” Journal of the American Oriental Society 136:4 (2016): 801–16.

23

Libson, Jewish and Islamic Law, 69–71.

24

Libson, Jewish and Islamic Law, 69–71.

25

Shabana, Custom in Islamic Law and Legal Theory, 33.

26

Shabana, Custom in Islamic Law and Legal Theory, 33.

27

Mālik b. Anas, Al-Muwaṭṭaʾ Riwāyat Yaḥyā b. Yaḥyā Al-Laythī, ed. Kulāl Ḥasan ʿAlī (Damascus: Muʾassasat al-Risāla, 2013), 350, 353, 442, 511, 528, 586.

28

Ibid., 353.

29

Ibid., 746.

30

Mālik b. Anas, Al-Muwaṭṭaʾ Riwāyat Yaḥyā b. Yaḥyā Al-Laythī, 511.

31

On Mālik’s concept of ʿamal, see Yasin Dutton, The Origins of Islamic Law: The Qurʾan, the Muwaṭṭaʾ and Madinan ʿAmal (Surrey, England: Curzon, 1999).

32

Ibid., 192.

33

Dutton, The Origins of Islamic Law, 32–52; Wymann-landgraf, Mālik and Medina, 192–98.

34

Ibid., 15, at n. 36, 143–44, 163.

35

Mālik used ʿamal in a technical sense to refer to the practice of Medina tens of times based on our search. For some examples, see Ibid., 125, 349, 467, 511, 539, 560, 569; On al-Shāfiʿī’s critique, see Ahmed El Shamsy, “Rethinking Taqlīd in the Early Shāfiʿī School,” Journal of the American Oriental Society 128:1 (2008).

36

Mālik b. Anas, Al-Muwaṭṭaʾ Riwāyat Yaḥyā b. Yaḥyā Al-Laythī, 500, 602.

37

Ibid., 509.

38

Dutton, The Origins of Islamic Law, 48.

39

It is largely due to the ambiguity of Mālik’s concept of ʿamal and its incorporation of different modes of lawmaking in one category that Abū Yūsuf, al-Shaybānī, and al-Shāfiʿī launched a sustained attack against it. See Ibid., 198–210.

40

Muḥammad b. Idrīs al-Shāfiʿī, Al-Umm, ed. Rifʿat Fawzī ʿAbd al-Muṭṭalib (Manṣūra: Dār al-Wafāʾ, 2001), 4: 463.

41

Ibid., 3: 464.

42

Ibid., 4:188.

43

Ibid., 3: 502.

44

Ibid., 3:231.

45

Ibid., 4:75, 152.

46

Ibid., 8: 661.

47

Ibid., 2: 625.

48

On salam contracts, see further Mahmoud El-Gamal, Islamic Finance: Law, Economics, and Practice (Cambridge [UK]; New York: Cambridge University Press, 2006), 81–90.

49

Shabana, Custom in Islamic Law and Legal Theory, 55; Muḥammad b. Idrīs al-Shāfiʿ ī, Al-Risāla, ed. Aḥmad Muḥammad Shākir (Beirut: Dār al-Kutub al-ʿIlmiyya, 1940), 337–42.

50

Wymann-landgraf, Mālik and Medina, 8–16.

51

Yaʿqūb b. Ibrāhīm al-Anṣārī Abū Yūsuf, Ikhtilāf Abī Ḥanīfa Wa Ibn Abī Laylā, ed. Riḍwān Muḥammad Riḍwān (Hayderabad: Maṭbaʿat al-Wafāʾ, 1938), 33.

52

Wymann-landgraf, Mālik and Medina, 137–38.

53

Muḥammad b. al-Ḥasan al-Shaybānī, Al-Aṣl, ed. Mehmet Boynukalın (Beirut: Dār Ibn Ḥazm, 2012), 2: 526; 3: 435, 445; 4: 34, 125; 5: 50, 543; 6: 205; 7: 337; 8: 390, 182; 9: 168, 306.

54

Ibid., 3: 445; 4: 125.

55

Ibid., 5:243; On the requirements for successfully claiming ownership of animals found in public spaces, see Ibn al-Humām and al-Marghinānī, Sharḥ Fatḥ Al-Qadīr, 6:121.

56

al-Shaybānī, Al-Aṣl, 9: 306.

57

Ibid., 10: 226.

58

Ibid., 8:390; 9: 168.

59

Ibid., 3: 438; 4: 11, 180, 486; 5: 141, 543, 8: 205, 12: 69.

60

al-Shāfiʿ ī, Al-Risāla, 503–12; Shabana, Custom in Islamic Law and Legal Theory, 199.

61

al-Shāfiʿ ī, Al-Umm, 9:75–76.

62

Abū Muḥammad al-Ḥasan b. ʿAlī b. Khalaf al-Barbahārī, Sharḥ Al-Sunna, ed. ʿAbd al-Raḥmān b. Aḥmad al-Jumayzī, 1st ed. (Riyadh: Dār al-Minhāj, 2005), 39–40, 92.

63

Ibid., 89.

64

Ahmad Ibn ʿAlī Jaṣṣāṣ, Al-Fuṣūl fi l-Uṣūl, ed. ʿUjayl Jāsim al-Nishmī (Kuwait: Wizārat al-Awqāf wa-l-Shuʾūn al-Islāmiyya, 1994), 4:107–115, at 111.

65

Ibid., 4:183.

66

Ibid., 224–48; Ḥasan ʿAṭṭār, Ḥāshiyat Al-ʿAṭṭār ʿalā Sharḥ Al-Jalāl Al-Maḥallī ʿalā Jamʿ Al-Jawāmiʿ (Beirut: Dār al-Kutub al-ʿIlmiyya, n.d.), 2:394–396; Abū al-Wafāʾ Ibn ʿAqīl, Al-Wāḍiḥ Fī Uṣūl Al-Fiqh, ed. ʿAbd al-Allāh b. ʿAbd al-Muḥsin al-Turkī, vol. 5 (Beirut: Muʾassasat al-Risāla, 1999), 2:101–102.

67

Jaṣṣāṣ, Al-Fuṣūl fi l-Uṣūl, 4: 247–248. Hallaq uses the term “great synthesis” in his evaluation of the formative period. See further Wael B. Hallaq, Sharīʿa: Theory, Practice, Transformations (Cambridge, UK; New York: Cambridge University Press, 2009), 56–60.

68

Libson, Jewish and Islamic Law, 69–77.

69

Shams al-Dīn al-Sarakhsī, Al-Mabsūṭ (Beirut: Dār al-Maʿrifa, 1993), 16: 62; Libson, Jewish and Islamic Law, 69–74, 251.

70

On this convergence see, for instance, Christopher Melchert, The Formation of the Sunnī Schools of Law, 9th–10th Centuries C.E. (Leiden; Boston: Brill, 1997), 48–147; Hallaq, Sharīʿa, 56–60.

71

Ibn ʿAqīl, Al-Wāḍiḥ Fī Uṣūl Al-Fiqh, 5:2:100–106, quotation at 103.

72

Ibid., 5:2:104–106.

73

Shabana rightly argues that the term ʿamal developed over time to refer both to later generations of Mālikīs but also to the choice of an opinion to follow in practice from among the competing views of the Mālikī school. Abū al-Walīd al-Bājī, Fuṣūl Al-Aḥkām Wa-Bayān Mā Maḍā ʿalayhi Al-ʿAmal ʿinda Al-Fuqahāʾ wa-l-Ḥukkām, ed. Muḥammad Abū al-Ajfān (Riyadh: Dār Ibn Ḥazm, 2002), 125–39; Shabana, Custom in Islamic Law and Legal Theory, 156.

74

Libson, Jewish and Islamic Law, 38–69.

75

Ottoman jurists endowed certain judicial practices (such as the practice of cash endowments) with the power of law, even though they contradicted established juristic discourse, by arguing that they represented “custom.” See Hoexter, “Qāḍī, Muftī and Ruler: Their Roles in the Development of Islamic Law,” 67–85; Social practice was often invoked to justify pragmatic eclecticism, despite strong opposition from jurists prior to the 13th century. Certain child custody contracts became judicial custom despite strong opposition from the majority of jurists from the Sunni schools. See further Ahmed Fekry Ibrahim, Pragmatism in Islamic Law: A Social and Intellectual History (Syracuse: Syracuse University Press, 2015).

76

European Council for Fatwa and Research, “The Concluding Statement of the Tenth Session of the European Council for Fatwa and Research: January 22–26, 2003,” European Council for Fatwa and Research, accessed June 25, 2017, https://www.e-cfr.org/%D8%A7%D9%84%D8%A8%D9%8A%D8%A7%D9%86-%D8%A7%D9%84%D8%AE%D8%AA%D8%A7%D9%85%D9%89-10-2/.

77

Al-Shaybānī, Al-Aṣl, 2: 225.

78

Abū al-Maʿālī ʿAbd al-Malik al-Juwaynī, Al-Burhān Fī Uṣūl Al-Fiqh, ed. ʿAbd al-ʿAẓīm al-Dīb (Doha, 1978), 2:907–964, at 931, 941–942; Abū al-Maʿālī ʿAbd al-Malik al-Juwaynī, Ghiyāth Al-Umam Fī Iltiyāth Al-Ẓulam, ed. Muṣṭafā Ḥilmī and Fuʾād ʿAbd al-Munʿim (Cairo: Dār al-Daʿwa, n.d.), 344–50.

79

al-Juwaynī, Ghiyāth Al-Umam Fī Iltiyāth Al-Ẓulam, 342–45.

80

al-Juwaynī, Al-Burhān Fī Uṣūl Al-Fiqh, 2:907–964, at 931, 941–942.

81

Abū Ḥāmid al-Ghazālī, Al-Mustaṣfā Min ʿIlm Al-Uṣūl, ed. Ḥamza b. Zuhayr Ḥāfiẓ (Medina: Sharikat al-Madīna al-Munawwara li-l-Ṭibāʿa, 1992), 2:481–99.

82

Ibid., 2:467–515.

83

Ibid.

84

Ibid.

85

In his definition of istiḥsān in the Mālikī school, al-Shāṭibī equated it with the theory of maṣlaḥa, arguing that istiḥsān is the abandonment of analogical reasoning in favor of relieving hardship. He cited the Mālikī jurist, Ibn al-ʿArabī, as saying that istiḥsān is the abandonment of a proof in favor of “custom” (ʿurf), maṣlaḥa, or consensus. Abū Isḥāq Ibrāhīm b. Mūsā al-Shāṭibī, Al-Muwāfaqāt (Riyadh: Dār Ibn ʿAffān, 1997), 5: 193–196.

86

Muḥammad Amīn Ibn ʿĀbidīn, Majmūʿat Rasāʾil Ibn ʿĀbidīn (Beirut: Dār al-Kutub al-ʿIlmiyya, 2014), 114–47.

87

ʿAlī b. Muḥammad Al-Āmidī, Al-Iḥkām Fī Uṣūl Al-Aḥkām, ed. ʿAbd al-Razzāq ʿAfīfī (Riyadh: Dār al-Ṣumayʿī, 2003), 4:192–197.

88

Following al-Ghazālī, al-Āmidī considered “unattested benefit” (maṣlaḥa mursala) not to be a valid source of law except when the benefit is certain and general. See Ibid., 4:196.

89

Muḥyī al-Dīn Abū Zakariyyā al-Nawawī, Rawḍat Al-Ṭālibīn, ed. Zuhayr al-Shāwīsh (Beirut: Maktab al-Islāmī, 1991), 3:511–512.

90

Najm al-Dīn al-Ṭūfī, Risāla Fī Riʿāyat Al-Maṣlaḥa, ed. Aḥmad ʿAbd al-Raḥīm al-Sāʾiḥ (Cairo: Al-Dār al-Miṣriyya al-Lubnāniyya, n.d.), 15–41.

91

Ibid., 28–29.

92

Ibid., 15–48.

93

al-Shāṭibī, Al-Muwāfaqāt, 1: 30–35, 219.

94

Ibid., 1: 30–35; 2:15–44.

95

Ibid., 1: 287–291.

96

Ibid., 1: 484–488.

97

Ibid., 5: 99–102.

98

Ibid., 2: 266–267, 273–275, quote at 273.

99

Ibid., 2: 494–495.

100

Ayman Shabana, “ʿUrf and ʿAdah within the Framework of Al-Shatibi’s Legal Methodology,” UCLA Journal of Islamic and Near Eastern Law. 6:1 (2006): 90.

101

Al-Shāṭibī, Al-Muwāfaqāt, 3: 365.

102

According to al-Wansharīsī (d. 914/1509), for instance, ʿamal referred to the practice of his times in North Africa and Andalusia “our land” (bibaladinā). See Shabana, Custom in Islamic Law and Legal Theory, 156–57; Aḥmad b. Yaḥyā al-Wansharīsī, Al-Miʿyār Al-Muʿrib wa-l-Jāmiʿ Al-Mughrib ʿan Fatāwā Ahl Ifrīqiyā wa-l-Andalus wa-l-Maghrib, ed. Muḥammad Ḥajjī, 1st ed. (Rabat: Wizārat al-Awqāf wa-l-Shuʾūn al-Islāmiyya li-l-Mamlaka al-Maghribiyya, 1981), 6:512; Abū al-Qāsim Ibn Juzzī al-Ghirnāṭī, Taqrīb Al-Wuṣūl Ilā ʿIlm Al-Uṣūl, ed. Muḥammad al-Mukhtār al-Shinqīṭī, 2nd ed. (Medina: NP, 2002), 399–420.

103

Shabana, “ʿUrf and ʿAdah within the Framework of al-Shatibi’s Legal Methodology,” 92–95.

104

Badr al-Dīn Muḥammad al-Zarkashī, Al-Baḥr Al-Muḥīṭ Fī Uṣūl Al-Fiqh, ed. ʿAbd al-Qādir al-ʿĀfī and ʿUmar Sulaymān al-Ashqar, 2nd ed. (Kuwait: Wizārat al-Awqāf wa-l-Shuʾūn al-Islāmiyya, 1992), 6:50–51.

105

Ibid., 6:80–81.

106

Ibid., 6:89–90.

107

In tracing the evolution of this legal maxim, we have examined over 40 works of legal maxims and legal theory in the four Sunni schools. Due to the limited number of works dedicated to legal maxims and the late development of this genre, this sample is representative of the genre. In order to trace this legal maxim, we followed two methodologies. We ran searches in al-Shamila and also examined the index of these works to locate their discussions of the necessity legal maxim. On this legal maxim in the Shāfiʿī school, see Badr al-Dīn Muḥammad al-Zarkashī, Al-Manthūr fī l-Qawāʿid, ed. Taysīr Fāʾiq Aḥmad Maḥmūd and ʿAbd al-Sattār Abū Ghudda (Kuwait: Wizārat al-Awqāf wa-l-Shuʾūn al-Islāmiyya, 1982), 2:24–25.

108

Ahmed Fekry Ibrahim, “Al-Shaʿrānī’s Response to Legal Purism: A Theory of Legal Pluralism,” Islamic Law and Society 20:1–2 (2013): 124.

109

ʿAṭṭār, Ḥāshiyat Al-ʿAṭṭār ʿalā Sharḥ Al-Jalāl Al-Maḥallī ʿalā Jamʿ Al-Jawāmiʿ, 2:394–396.

110

Al-Suyūṭī, Al-Ashbāh wa-l-Naẓāʾir Fī Qawāʿid Wa-Furūʿ Fiqh Al-Shāfiʿiyya, 88–90.

111

One practice that was often justified in the post-classical period by reference to ḥāja or ḍarūra is picking and choosing less stringent juristic opinions from muftis and also in the choice of one of the four Sunni schools. Ibrahim, Pragmatism in Islamic Law, 91–93.

112

Libson, Jewish and Islamic Law, 71–76; Shabana, Custom in Islamic Law and Legal Theory, 111–13; Ibn Nujaym, Al-Ashbāh wa-l-Naẓāʾir, 79–89.

113

Ibn Nujaym, Al-Ashbāh wa-l-Naẓāʾir, 78.

114

ʿAṭṭār, Ḥāshiyat Al-ʿAṭṭār ʿalā Sharḥ Al-Jalāl Al-Maḥallī ʿalā Jamʿ Al-Jawāmiʿ, 2:394–396.

115

Ibn ʿĀbidīn, Majmūʿat Rasāʾil Ibn ʿĀbidīn, 114–16.

116

Ibn ʿĀbidīn, Majmūʿat Rasāʾil Ibn ʿĀbidīn, 125–32.

117

Libson, Jewish and Islamic Law, 71–76; Shabana, Custom in Islamic Law and Legal Theory, 111–13.

118

Ibn ʿĀbidīn, Majmūʿat Rasāʾil Ibn ʿĀbidīn, 114–47.

119

Jean Carbonnier, Droit Civil (Paris: Presses Universitaires de France, 2004), 1:16–18; 1:244–251; 1:312; 2:2110; Jean Domat and Luther Stearns Cushing, The Civil Law in Its Natural Order (Boston: Little, 1850), 57; Catherine Puigelier, “Les Temps des Lois,” in Science, éthique et droit, ed. Nicole Le Douarin and Catherine Puigelier (Paris: Odile Jacob, 2007), 111.

120

There is awareness that this is not a distinction based on Islamic law. Fāris, for instance, rightly points out that the distinction does not exist in premodern Islamic law and that it is purely based on French law. See Muḥammad al-Sayyid Fāris, Al-Madkhal li-l-ʿUlūm Al-Qānūniyya: Naẓariyyat Al-Qānūn (Cairo: Markaz Kulliyyat al-Ḥuqūq Jāmiʿat al-Qāhira, 2014), 156–72.

121

Wael B. Hallaq, A History of Islamic Legal Theories: An Introduction to Sunnī Uṣūl al-Fiqh (Cambridge: Cambridge University Press, 1997), 214–55.

122

European Council for Fatwa and Research, “The Concluding Statement of the Tenth Session of the European Council for Fatwa and Research: January 22–26, 2003.”

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