on the development of custom as a source of law in islamic

On the Development of Custom as a Source of Law in Islamic Law: Al-rujūʿu ilā al-ʿurfi aḥadual-qawāʿidi al-khamsi allatī yatabannā ʿalayhā al-fiqhuAuthor(s): Gideon LibsonSource: Islamic Law and Society, Vol. 4, No. 2 (1997), pp. 131-155Published by: BRILLStable URL: http://www.jstor.org/stable/3399492

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ON THE DEVELOPMENT OF CUSTOM AS A SOURCE OF LAW

IN ISLAMIC LAW:

Al-ruji'u ild al-'urfi ahadu al-qawd'idi al-khamsi allat yatabannd

'alayhd al-fiqhu *

GIDEON LIBSON

(The Hebrew University, Jerusalem)

Abstract

Although classical Islamic legal theory did not recognize custom as a source of law, Muslim jurists-in particular, the Hanafis-discussed the status of custom already in the pre-classical period. Custom was incorporated into Islamic law in a variety of ways: by including certain practices in the category of sunna or ijmd'; by appealing to judicial preference (istihsan) and to secondary sources of law, such as fatwds; and by using legal fictions (hiyal). Because these methods were not always adequate to deal with the questions that specific practices presented to the jurists, there was an increasing tendency among later Hanafi jurists to recogize custom as a source of law.

1. The Status of Custom

A LEGAL SYSTEM IS NOT A RIGID ENTITY, but rather fluctuates and

evolves with changing circumstances and times. One may say that to

the extent that law influences and shapes society, it is itself influenced

by and adapts to social practice. This understanding of the nature and

function of law was common among Muslim jurists, as reflected in the

following statement by the fifth/eleventh-centuy scholar al-Sam'ani:

...Fiqh is an ongoing science continuing with the passage of centuries and changing with the change of circumstances and conditions of men, without end or interruption.1

* I. Goldziher, The Zahiris-Their Doctrine and Their History (Leiden, 1971), 188, attributes this quote to Ahmad b. Muhammad al-Qastallani (d. 923/1517), in the name of Qadi al-Husayn, probably al-Marwazi al-Shafi'i (d. 462/1070); Goldziher presumably was referring to al-Qastallani's Irshad al-Sdarfi Sharh al- Bukhari, although I have been unable to locate the citation in the standard editions of this text. In this essay, I do not present a comprehensive, detailed discussion of custom in Islamic law, but only outline the major stages in its development. I hope to deal with custom in Islamic law in greater length in a future publication. I wish to express my appreciation to David Powers for his generous assistance in the

preparation of this essay, to Haggai Ben Shammai, who was always available for consultation; and to Baber Johansen, Aharon Layish and the anonymous reader for their helpful comments.

1 As cited by G. Makdisi, Religion, Law and Learning in Classical Islam

Islamic Law and Society 4,2 ? Brill, Leiden, 1997

GIDEON LIBSON

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

customs-social, economic and other practices that develop among

people at the "grass roots" level and force the normative system to

adapt itself, whether by admitting these customary practices into the

legal framework or by rejecting them as unworthy of incorporation. Almost every legal system finds it necessary to deal with customs

extraneous to its normative framework, whether archaic customs that

predate the development of the system itself or new customs that

emerge after its consolidation. This process is particularly difficult in a

system of religious law. Whereas Jewish law solved the problem by

recognizing custom (Hebrew: minhag) as a formal source of law and

as a basis for the creation of new legal norms,2 Islamic law chose not

to grant formal status to custom,3 which it called 'urfor 'ada,4 despite

(Aldershot, 1991), II, 36. See also W. Hallaq, Law and Legal Theory in Classical and Medieval Islam (Aldershot, 1994), XII 197.

2 On custom in Jewish Law see M. Elon, Jewish Law. History, Sources, Principles (Philadelphia & Jerusalem, 1994), vol. II, 880-944; and Gideon Libson, Geonic Custom and its Relationship to Islamic Law (forthcoming).

3 Muslim jurists since the sixteenth century have written extensively on the

subject, as have moder scholars. Most worthy of mention among Muslim jurists are Zayn al-'Abidin Ibn Nujaym (d. 970/1563), AI-Ashbdh wa'l-Nazt'ir (Cairo, 1378/1968), who devotes a chapter to custom; and a similarly entitled work by Abui al-Fadl al-Suyiti al-Khudayri (d. 911/1505), Al-Ashbdh wa'l-Nazd'ir fi Qawd'id wa-Furu' al-Shafi'iyah (Cairo, 1242/1826). See also Muhammad Amin Ibn 'Abidin (d. 1252/1836), "Al-'Urf," in Majmi'at Rasd'il Ibn 'Abidin (Beirut, 1978). Of the modem scholars, we mention the comprehensive work of Ahmad Fahmi Abf Sinnah, Al-'Urf wa'l-'ddah fi Ra'yi'l-Fuqahd' (Cairo, 1947); Sayyid Salih 'Awad, Athar al-'Urffi'l-Tashrr al-lsldml (Cairo [1981]); Samir 'Aliyah, Qadd' wa'l-'Urffi'l-lsldm: dirdsah muqdrinah (Beirut, 1986); and 'Abdul-'Aziz

Khayyat, Nazariyyat al-'Urf (Amman, 1977). On custom in the Miliki school, see 'Umar b. 'Abd al-Karim Jidi, Al-'Urf wa'l-'Amal fi'l-Madhhab al-Mciliki wa- mafhumuhumd ladd 'ulamd' al-Maghrib (Rabat, 1982); on the Maliki attitude to

custom, see R. Brunschvig, "Polmiques m6di6vales autour du rite de Malik," in Etudes d'lslamologie (Paris, 1976), 65-101, esp. 97-100. On custom in the Hanafi

school, see B. Johansen, "Coutumes locales et coutumes universelles aux sources de

juridiques en droit Musulman Hanafite," Annales Islamologiques, xxvii (1993), 29- 35. Many recent introductions to thefiqh literature devote a chapter to custom. See, for example, Shawqi 'Abdu al-Sahi, Al-Madhkal li-Dirdsat al-Fiqh al-Islami

(Cairo, 1410/1989), 290-97; Mustafa Ahmad Zarqa', Al-Madkhal al-Fiqhi al-'Amm, 3 vols. (n.p., 1967), II, 733 ff.; M. H. Kamali, Principles of Islamic Jurisprudence (Cambridge, 1991), 283-96. See also F. M. Nabban, Abhdth Isldmiyya (Beirut, 1986), 110-18; Subhi Mahmasani, Falsafat al-Tashrr' f al-lsldm, transl. F. J. Ziadeh (Leiden, 1961), 130-36; M. Othman, "'Urf as a Source of Islamic Law," Islamic Studies, xx (1981), 343-55. Cf., in addition, N. Coulson, "Muslim Custom and Case-Law," in Die Welt des Islams, vi (1959), 13-24; J. Schacht, An Intro- duction to Islamic Law (Oxford 1964), 62 and see also bibliography, 234; F.J. Ziadeh, "'Urf and Law in Islam," in The World of Islam. Studies in Honour of P. K. Hitti (London, 1960), 60-68; B. S. Hakim, "The Role of 'Urf in Shaping the Traditional Islamic City," in Islam and Public Law, ed. C. Mallat (London, 1993), 141-55, esp. notes on p. 142; essays by A. K. Reinhart, M. Gaborieau and H.

132

THE DEVELOPMENT OF CUSTOM AS A SOURCE

the historical links between the two legal systems at the level of both

sources of law and positive law. I shall be concerned in this essay with

the question of the treatment of custom in Islamic law.5

The following account of the changing status of custom in Islamic

law focuses primarily on the Hanafi school, the closest in time and

place to the Babylonian Geonim, the heads of the Jewish academies in

Iraq from the seventh to eleventh centuries C.E.6 Hanafi doctrine

grants custom a more prominent place than the doctrine of the other

three Sunni law schools, which also resorted to custom, but to a far

more limited extent. One finds almost no references to custom in the

works of al-Shafi'i, although such references appear frequently in later

Shafi'i doctrinal lawbooks.7 The Malikis rarely refer to custom, perhaps

Touati in Annales Islamologiques, xxvii (1993) (in addition to Johansen's contribution to that volume, cited above). The entry on 'Urf in the first edition of Encyclo- paedia of Islam is short and does not reflect the importance of the subject and the

challenge it presented to the classical jurists. 4 I am inclined to the view that Hanafi jurists, at least in the pre-classical and

classical periods (on this periodization, see below), did not distinguish between these two terms, using both in the same sense. 'Ali b. Muhammad al-Jurjani, Kitdb

al-Ta'rifdt (Beirut, 1978), 104, offers the following definition: 'Al-'urfu md 'staqar- rat al-nufiis bi-shahddati al-'uqiil wa-talaqqathd al-tabd'i' bi-qubil wa-huwa

hujjatun aydan lakinnahu asra' ild al-fahm wa-kadhd al-'dda wa-hiya md 'stamarra al-nas 'aid hukmi al-'uqul wa-'ddu ilayhi marratan ba'd ukhrd; see the discussion in Abi Sinnah, Al-'Urf wa'l-'Adah, 13; 'Abdul-'Aziz Khayyat, Nazariy- yat al-'Urf (Amman, 1977), 26-31. Cp. B. Johansen, "Casuistry: Between Legal Concept and Social Praxis," Islamic Law and Society, ii (1995), 135-56, esp. 152, where the author defines 'dda as "normative custom" and 'urf as "social practice." See also idem, The Islamic Law of Land Tax and Rent (New York, 1988), 54, where the author translates 'urfun zdhirun as "recognized custom" and ta'dmul

(also used in Hanafi sources to denote a custom, see below) as "business practice." See further Hallaq, Law and Legal Theory, III 343, according to whom al-Ghazali defines 'urf [= the normative behavior and practices of Muslims], as a component of 'dda, which is God's "custom" in running the world (that is, natural law); cf.

ibid., VIII 443, citing a similar definition in the name of 'Abd al-Jabbar (d. 415/1025) in his Mughni.

5 On the relationship between these two legal systems in connection with

custom, see my forthcoming book mentioned in note 2 above. 6 On the Babylonian Geonim and the Geonic period, see G. Libson, "Halakhah

and Law in the Period of the Geonim," in An Introduction to the History and Sources of Jewish Law, ed. N.S. Hecht, B.S. Jackson, S.M. Passamaneck, D.

Piattelli, and A.M. Rabello (Oxford: Clarendon Press, 1996), pp. 197-242. 7 See, for example, Muhammad b. Idris al-Shafi'i (d. 204/820), Kitdb al-Umm

(Cairo, 1961), vol. 3, 33, 81, who rejects the possibility of using custom in relation to interest (because it was forbidden by the Prophet); cf. ibid., 23, 95; and similarly idem, Kitdb al-Risdla fi Usuil al-Fiqh, ed. Ahmad Muhammad Shakir (n.p., n.d.), 525, 526). See also idem, Umm, vol. 3, 34, 37 for recognition of custom in relation to responsibility for damages; ibid., 42 in relation to the cultivation of wasteland; ibid., vol. 7, 114, in connection with salam; ibid., 146, in connection with con- tracts and torts. See al-Shafi'i's statement (ibid., vol. 3, 37) that some of his associates favored allowing people to adhere to custom. Later Shafi'i doctrine was somewhat more cognizant of custom: see, for example, Abu Ishaq IbrWhim b. 'Ali

133

GIDEON LIBSON

because Miliki law was founded on the praxis of Medina and most

Medinese customs were granted the status of sunna, thereby obviating the need to appeal to custom. Traces of a similar phenomenon may be

detected in the Hanafi literature.8 And I found no references to custom

in the legal literature of the Hanbali school during the pre-classical and

classical periods.9 Classical Islamic law recognizes four principal sources: the Qur'an,

sunna (tradition), qiyCs (analogy) and ijmd' (consensus). The first two

are literary sources of differing legal status. The Qur'an, the record of

the revelations received by Muhammad between 610 and 632 C.E., is

said to have enjoyed the prestige of a written source already during the

Prophet's lifetime. The sunna consists of oral traditions that subse-

quently were committed to writing and compiled in collections during the ninth century-with the work of Bukhari (d. 265/870), Muslim (d.

261/875), Abu Da'ud (d. 275/888) and others, and the tenth centuries, with the work of jurists such as Ibn Khuzayma (d. 311/923), Ibn

Hibban (d. 354/965) and al-Daraqutni (d. 385/995); a few collections

date to the first half of the eleventh century (e.g., the Sunan al-Kubra of

al-Bayhaqi [d. 458/1066]). The third and fourth sources are technical

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

al-Shdfi'i (Cairo, 1951), vol. 1, 35, 304, 308, 340, 342, 350, 352, 361, 366, 396, 398, 424, 447; vol. 2, 161, 256. See also references to al-Mawardi below.

8 For the customs of Madina, see, for example, Malik b. Anas (d. 179/795), Al-Muwatta', ed. Fu'ad 'Abd al-Baqi (Cairo, 1951), 636, 653, 661, 667, 670, 704. On custom as a supplementary source for a contract, see ibid., 681, 691-92, 696, 698, 701; Sahnin b. Sa'id b. Habib al-Tanikhi (d. 240/854), Al-Mudawwana al- Kubra (Beirut, 1966), vol. 2, 196, 197; vol. 3, 2, 126, 131, etc. See also the inter- esting discussion of custom by the Maliki jurist al-Qarafi (684/1285) in his Kitab al-lhkdm fi tamyiz al-fatdwd 'an al-ahkdm wa-tasarrufdt al-qddi wa'l-Imdm (1st ed., Cairo, 1938), pp. 67-68, and see also p. 16. The distinct status of custom in the Miliki school requires a special discussion that is beyond the scope of the present essay. On custom in the M3liki school see, for the moment, Jidi, Al-'Urf wa'l- 'Amal, and Brunschvig, "Pol6miques m6di6vales," 97-100; see also the sources cited by N. Calder, Studies in Early Muslim Jurisprudence (Oxford, 1993), 53, 183, 198. On 'amal in the pre-classical period and its relationship to hadlth, see N. Coulson, "Doctrine and Practice in Islamic Law: One Aspect of the Problem," Bulletin of the School of Oriental and African Studies, xviii (1956), 211-26, esp. 225; J. Schacht, The Origins of Muhammadan Jurisprudence (Oxford, 1950), 62. 'Abd Allah 'Umar Fariq, "Milik's Concept of "Amal' in the Light of Maliki Legal Theory," Ph.D. dissertation, The University of Chicago, 1978. On the practice of the courts in this school and its attitude to custom in North Africa in a later period, see H. Toledano, Judicial Practice and Family Law in Morocco (Colorado, 1981), 10-47, esp. 17 n. 28.

9 I consulted the following two Hanbali legal texts: 'Umar b. al-Husayn al- Khiraqi, Mukhtasar al-Khiraqi 'aid madhhab al-lmdm Ahmad b. Hanbal (Damas- cus, 1964); and Muwaffaq al-Din Ibn Qudama (d. 619/1223), al-Mughni (Cairo, 1367/1947).

134


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

hermeneutics, while ijmd' allows a legal ruling to be confirmed or

established on the basis of a consensus of legal scholars or, according to some, of the entire Muslim world.

Custom is not one of the recognized sources of law in Islam. At first

sight one might suggest a simple explanation for this phenomenon. Custom reflects human behavior, while Muslim jurists conceived of

their legal system as superhuman, revealed once and for all by God; hence any human intervention in the legal process, particularly for

purposes of revision, is ipso facto illegitimate. This explanation is inadequate. The refusal of Islamic law to grant

custom status as a formal source is surprising on three counts. First, custom plays a vital role in almost every legal system as a source for

the development of legal practice, a bridge between legal theory and

practice, as illustrated, e.g., by the versatility of minhag in Jewish law.

How could jurists mitigate the tension between theory and practice without appealing to custom? Even the wide use of legal fiction (hlla) in

Islamic law could not fill the legal gap created by the rejection of

custom as a formal source of law and solve the problems that prac-

tice-particularly economic practice-posed for the jurist.10 Second, the

10 On the use of legal stratagems to harmonize practice with theory, particularly in the area of economics, see Coulson, "Muslim Custom and Case-Law," 17. On the use of deeds and legal formularies (shurut) for the same purpose, see W.

Hallaq, "Model Shurat Works and the Dialectic of Doctrine and Practice," Islamic Law and Society, ii (1995), 109. The legitimate use of legal fictions in Islamic law and its considerable currency had some influence on a similar tendency in Jewish law during the Geonic period; I shall discuss this in detail elsewhere. Other ways to address the need for adjustments and changes within the legal system included (1) introducing new interpretations of the literary sources, using ijtihdd; and (2) wrest-

ling with new problems brought about by social developments by means of iftd', with a heavy reliance on the technique of qiyds. Hanafi jurists attempted to use these techniques to incorporate innovations into the legal literature without explicitly using any term denoting "custom." Closely related to this approach was the use of legal casuistry. See R. Brunschvig, "Considerations sociologiques sur le droit Musulman ancien," Studia Islamica, iii (1955), 61-73; Hallaq, in Law and Legal Theory, XII 181-83; idem, "From Fatwds to Furu': Growth and Change in Islamic Substantive Law," Islamic Law and Society, iii (1995), 27-65, esp. 65. On the introduction of new principles and concepts in legal literature as means of inter-

preting sharra and adapting it to social needs, see Johansen, Islamic Law of Land

Tax, 124-25; idem, "Coutumes locales et coutumes universelles," esp. 32. On the use of casuistry to legitimize various commercial practices see idem, "Casuistry," 150-51; on the relationship between the theory of casuistry and custom see ibid., 152, 155 ("In many cases casuistry is not an abstract thought and speculation but an adjustment of the law to practices of important social and professional groups"), and cf. the summary ibid., 156. On bridging the gap between theory and practice through legal rulings, see Hallaq, "From Fatwds to Furt'," 50. Whereas Jewish law developed judicial rules for determining the law (kelalei pesika) in the case of

135

GIDEON LIBSON

practice of the Muslim community was an influential factor in shaping

legal norms and contributed to the development of Islamic law. That

this was the case may be discerned from references in the classical

literature to "popular custom" (amr al-nis) and to practice as a final

authority. It is surprising, therefore, that this phenomenon found no

expression in normative terms by legal recognition of 'urf.ll Third,

assuming, as held by some scholars, that Roman law exerted an influ-

ence on Islamic law12 and, further, that Jewish and Islamic law had a

mutual influence upon one another, one is struck by the great difference

between Roman and Jewish law-both of which explicitly recognize custom as a source of law, and Islamic law, which does not.13

Although custom, in theory, is not recognized as a source of law, in

practice Muslim jurists-in particular Hanafis and even more so

Malikis-refer to it with great frequency. This discrepancy between

theory and practice caused difficulties, echoes of which can be detected

in the classical literature. Thus, there is evidence of controversy among Muslim jurists on the status of custom, and some jurists even attempted to accord custom a formal standing as a source of law. The view that

prevailed in this controversy, at least in the pre-classical period, that is,

prior to the end of the ninth century, was the refusal to recognize custom as a formal source.14 From the early classical period until

differences of opinion between two authorities, such techniques were not sufficiently sophisticated in Islamic law in the classical period. None of the aforementioned solutions to the problem was adequate to deal with the power of custom, and,

consequently, there was an increasing tendency in the post-classical period to view custom as an independent source.

11 On al-Shaybani and Sahnun see Calder, Studies, 53 n. 27; 183, 198-99. For custom in MOliki law see Jidi, Al-'Urf wa'l-'Amal. On the use of 'amal in the Maliki school see above, n. 8.

12 For the possible influence of Roman law on Islamic law see P. Crone, Roman, Provincial and Islamic Law (Cambridge, 1987), 1-17.

13 For the position of custom in Roman law, where it is called mos or mores, see C. K. Allen, Law in the Making (7th ed., Cambridge, 1964), 80; H. F. Jolowicz

(ed.), Lectures on Jurisprudence (London, 1963), 197; H. F. Jolowicz & B.

Nicholas, Historical Introduction to the Study of Roman Law (Cambridge, 1972), 101; A. Schiller, "Custom in Classical Roman Law," Virginia Law Review, xxiv

(1938), 268-82, esp. 269. Note: The position ascribed to the classical jurist Julian, as cited in Justinian's Digest, concerning the force of custom (see D. Even, "Desuetude," Diss., Hebrew University [Jerusalem, 1976; Hebrew], 14 and 74 n. 1; Schiller, ibid.), is reminiscent of the definition of ijma' in Islam. However, the definitions of consensus and custom are so similar that the boundary between them is sometimes vague (see below). On this observation see Even, ibid., 81; Allen, ibid.; Jolowicz & Nicholas, ibid., 354; Lord Lloyd of Hampstead, Introduction to

Jurisprudence (London, 1972), 572. 14 See, for example, Fakhr al-Din al-Razi (d. 606/1210), Mafdtih al-Ghayb

(Teheran, n.d.), vol. 3, 361; and cf. J. Schacht, "Usul," Shorter Ecyclopaedia of Islam (Leiden, 1953), 615.

136


(approximately) the sixteenth century, attempts were made to incorporate practical custom in the law without granting it formal recognition.15 This tendency, which first manifested itself in the position of Abf

Yusuf in his dispute with Abu Hanifa (see below), is explicitly referred

to in a statement attributed to Qadi al-Husayn, probably al-Marwazi

al-Shffi'i (d. 462/1070), by A1mad b. Muhammad al-Qastallni (d.

923/1517):

wa-qad qala al-Qddi Husayn: al-ruji'u ild al-'urfi ahadu al-qawd'idi al-khamsi allati yatabanni 'alayhi al-fiqhu.

[Qadi Husayn has stated: resort to custom is one of the five foundations on which the law (fiqh) is built]16

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

who regarded custom as a material source-also refers to it as one of

the legal sources that should guide the judge in his decisions, in effect

acknowledging custom as a source of law at the magistrate's disposal. Al-Sarakhsi explicitly refers to 'urf on the same level as the Qur'an,

sunna, and qiyds:

Illi idhd kdna mujtahidan... an yakana qad hawd 'ilma'l-kitbi... wa-'ilma'l-sunnati... wa-an yakuna musibanfi'l-qiydsi 'climan bi-'urfi al-nasi.

[...but if a mujtahid (= a person with the intellectual capacity to form his

own judgment on questions concerning the sharra) is familiar with the

Qur'an... and with the sunna, and if he is an expert in qiyas and

knowledgable with regard to the custom of the people...]17

15 Throughout this essay, I use Chafik Chehata's periodization of Islamic law: (1) pre-classical = until the end of the ninth century; (2) classical = the tenth to the twelfth centuries; (3) post-classical = from the twelfth century on. See Ch. Chehata, Etudes de droit musulman, 2 vols. (Paris, 1971), vol. 1, 18 ff. This periodization was adopted by Y. Meron, "The Development of Legal Thought in Hanafi Texts," Studia Islamica, xxx (1969), 79-93, and subsequently by Johansen, The Islamic Law on land Tax, 1-3; see also idem, "Casuistry," 138. This periodization does not

always accurately reflect developments in Islamic law; some legal institutions developed more or less continuously, without a noticeable division into phases. My theory of the development of custom in the classical period parallels Johansen's account of casuistry (which, as mentioned above, was also used to reconcile theory and social practice) in the contemporary period.

16 Quoted in Goldziher, The Zdhiris, 188. We have translated qd'idatun here in its literal sense of "foundation" (or: "principle"); in this context, however, the sense is almost that of a legal source, as it appears in conjunction with the four recognized sources of Islamic law.

17 Abf Bakr Muhammad b. Ahmad Shams al-Din al-Sarakhsi (d. 490/1097), Kitab al-Mabsut (Cairo, 1324-31/1906-13), vol. 16, 62. Cf. the account of a

mujtahid's qualifications by Abi Husayn al-Basri (d. 436/1044), Kitdb Al-Mu'ta-

madfi Usul al-Fiqh (Damascus, 1964), vol. 2, 929; see Hallaq, Law and Legal Theory, V 5.

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GIDEON LIBSON

A study of Muslim legal literature will show that Islamic law re-

solved the tension between theory and practice by what was in essence

a defacto recognition of the role of custom. One of the most important devices adopted was the acceptance of custom as a material source.

That is to say, Muslim jurists granted de facto recognition to certain

customs by resorting to other, "legitimate," sources of law. A particu-

larly important principle in this context is istihsdn, that is, juridical or

personal preference, which became a common means for assimilating custom and usage, although some scholars introduced innovations into

the legal system by direct appeal to istihsan, with no reference whatever

to custom or usage.18 Another principle used for the same purpose was

darara or necessity. This principle, too, was quite common in the Mus-

lim legal literature, as in al-Sarakhsi's statement, wa'l-haraj madfa' shar'an [it is permitted by law to reject a legal difficulty (in order to rule

leniently)].19 These principles were frequently invoked by the jurists in

their discussions of commercial law.

In addition to recognizing it as a material source, there were other

ways to integrate custom into the substance of Islamic law. These

consisted in attempts (1) to identify custom with sunna; (2) to identify it

with ijmt'; or (3) to treat it as if it were a written stipulation. The

attempt to identify custom with sunna, that is, the model behavior of

Muhammad as preserved in narrative reports or hadlth, is important and deserves special emphasis. The idea seems natural, insofar as the

origins of sunna lie in custom and practice-mainly the practices of

Muhammad himself, so that sunna is largely a product of custom. So

long as custom could be included in the sunna, Islamic law could ac-

commodate itself to theory and there was no break in the development of law, to which custom made a major contribution.20 But certain tradi-

tions drew heavily on later customs, which legal authorities ascribed to

the time of the Prophet-indeed, sometimes attributing the innovation in

question to the Prophet himself-in order to accord them greater legiti-

macy and to incorporate the custom into the accepted legal framework.

(Such new"sunna" played a similar role in the substantiation of legal

18 See, for example, Abf al-Hasan 'Ali b. Muhammad b. Habib al-Mawardi (d. 450/1058), Adab al-Qddl (2nd ed.; Baghdad 1391/1971), vol. 1, 652, who treats istihsdn as an independent source.

19 Al-Sarakhsi, Mabstt, vol. 15, 160; for details see Zayn al-'Abidin Ibrihim b. Nujaym (d. 970/1563), Al-Ashbdh wa'l-Nazd'ir 'ala madhhab Abi Hanlfah al- Nu'mdn (Cairo, 1968), 36.

20 See I. Goldziher, "The Principles of Law in Islam," in The Historian's History of the World, ed. H. S. Williams, 25 vols. (London, 1908), vol. 8, 294- 304, esp. 294.

138


rules and principles other than custom.21) Some confirmation for this

view comes from the fact that Islamic legal texts make almost no

reference to custom in its material form, that is, to its association with

istihsdn, so long as the literary redaction of hadith collections was still

in progress. During that time, new customs and practices could "find

refuge" in the hadith-literature and there was no special need to grant them formal, independent recognition, that is, to accept custom as a

source of law.22 In the same way, attempts were made to identify custom with ijmda' (see below, at nts. 28 and 49).

Once the sunna had been finalized, with the completion of the major standard collections, beginning in the ninth century, it could no longer

provide a haven for custom, which began to appear as a material fac-

tor, woven into the fabric of law through other legal sources. Only then, when the main redaction of the hadith-collections had come to an end, do we begin to find the legal literature referring frequently to custom as

a material source, mainly by appeal to the principle of judicial preference (istihsdn), but also through the use of other sources of law. This

stage, too, reflects an attempt to adhere to theory without rejecting the

acceptance of custom.23

21 One meaning of the term sunna is "custom," and indeed in Judeo-Arabic the word sunna is sometimes used in that sense. See M. Ben-Sasson, "Fragments from

Saadya's Sefer ha-Edut veha-Shetarot" (Heb.), Shenaton ha-Mishpat ha-'Ivri, xi-xii

(1984-86), 221; N. Allony, "Two Responsa of R. Saadya Gaon" (Heb.), in Studies in Medieval Philology and Literature. Collected Papers, vol. 1: Sa'adia's Works

(Jerusalem, 1986), 364; M. A. Friedman, "Government Intervention in Qayrawan in the Divorce of a Betrothed Girl: A New Fragment from a Large Collection of Gaonic Responsa [with Notes on Other Fragments]" (Heb.), Michael, v (1978), 215-

42, esp. 229; S. D. Goitein, "Geniza Documents from the Mamluk Period [Review of E. Ashtor, History of the Jews in Egypt and Syria under Mamluk Rule]" (Heb.), Tarbiz, xli (1972), 59-81, esp. 79; J. I. Bloomberg, "Arabic Legal Terms in

Maimonides," Dissertation, Yale University, 1980, 16. 22 The authenticity of the sunna and the concomitant problems have been dealt

with extensively by Goldziher and Schacht, and, more recently, Juynboll, Powers and Crone. See J. Schacht, The Origins of Muhammadan Jurisprudence, 80; I.

Goldziher, Muslim Studies (Leiden, 1971), 182; G. H. A. Juynboll, Muslim Tradi- tion (Cambridge, 1983), 1-7; D. Powers, Studies in Qur'dn and Hadith (Berkeley- Los Angeles-London, 1986), 1-8; P. Crone, Roman Provincial and Islamic Law

(Cambridge, 1987). On custom disguised as sunna see I. Goldziher, Introduction to Islamic Theology and Law (Princeton, 1981), 36; P. Crone & M. Cook, Hagarism (Cambridge, 1977), 38, and ibid. on the status of custom in general.

23 The two other ways of absorbing custom will be considered below. In many cases in the classical literature, however, particularly among the Hanafis, appeal is

made to custom independently of other principles. In connection with salam

(immediate payment for property to be acquired in the future), see 'Ali b. Abi Bakr

al-Marghinani (d. 592/1196), Hiddya Sharh Biddyat al-Mubtadi, in Sharh Fath al-

Qadir 'ald al-Hiddya by Muhammad b. 'Abd al-Wahid al-Siwasi, known as Ibn

al-Humam (d. 861/1457) (Egypt, 1356/1938), vol. 6, 241; cf. A. L. Udovitch, "Islamic Law and the Social Context of Exchange in the Medieval Middle East,"

139