on the development of custom as a source of law in islamic law- gideon libson

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/3399492Accessed: 09/09/2009 13:11

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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.

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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 contracts 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

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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 subsequently 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 interesting 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).

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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 practice-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

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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 influence 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.

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(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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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 particularly 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 traditions 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.

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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 factor, 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,"

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As time passed, Islamic law went through various changes and the status of custom was altered. The exigencies of practice made it increasingly necessary to recognize custom as a formal source of law and this tendency ultimately prevailed. By the late post-classical period, custom had become a virtually independent source in Hanafi legal thought. Ibn Nujaym (d. 970/1563), for example, asserts that the frequent appeal to custom had made it an independent legal source:

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

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wa-i'lam anna i'tibdra al-'adati wa'l-'urfi24 yurja'u ilayhi fi'l-fiqhi fi masd'ila kathiratin hattd ja'alu dhdlika aslan fa-qldh fi'l-usuli fi bdbi mr tutraku bihi al-haqlqatu tutraku al-haqlqatu bi-dakllati al-istidldli wa'l-'dtati.

[Know that the consideration of custom and usage reappears frequently in law in many cases, so much so that they [viz., the jurists] have transformed it into a legal source, and they said in the usul literature, in the chapter on the abandonment of literal meaning: the literal meaning is abandoned on the basis of an indicator found in inferential methods of inquiry25 and in custom.]26

Perhaps the first definition of custom is attributed to al-Ghazali, in his Al-Mustasfd min 'Ilm al-Usul: "al-'urfu md 'staqarra fi al-nuftsi min jihati al-'uquli wa-talaqqathu al-tibd'u al-salimatu bi'l-qubili" [Custom is that which is established in a man's mind by virtue of logic and the sound mind accepts it].27 The last stage in the process of recognizing custom as a formal source is marked by the Mejelle (promul- gated as the Ottoman Civil Code in 1877), whose authors, following the work of sixteenth-century legal scholars (Ibn Nujaym and others), compiled the main rulings concerning custom as they found them in ten articles, whose combined effect was probably to finalize the altered status of custom in Islamic law. Moder Muslim scholars, relying on

quotations from thefiqh literature, treat custom as a full-fledged source of law, on a level with the four recognized sources, essentially legitimizing the approach that was rejected in the classical period.

The stages in the development of custom in Islamic law may be summarized as follows:

1. Pre-classical and classical periods: incorporation of custom in

sunna, sometimes in hadiths whose authenticity is dubious and which reflect later developments. Some jurists attempted to identify custom with ijma', as the boundary between the two is vague.28

2. A transitional phase, perhaps concurrent in part with the first

stage, during which traces may be detected in the doctrinal lawbooks of

24 On the terms 'urf and 'ada, see above, n. 4. 25 On the term istidldl see Hallaq, Law and Legal Theory, III, 317, 346; II 296. 26 Ibn Nujaym, al-Ashbdh, 93. Similar statements may be found in the works

of Ibn 'Abidin and al-Qarafi; see Abf Sinnah, Al-'Urf wa'l-'Adah, 26. 27 Although this maxim is quoted in the legal literature in al-Ghazali's name, I

have not been able to locate the source. On a historical-not dogmatic-attitude to the sources of law, see 'All b. Ahmad b. Hazm (d. 456/1065), Ibtdl al-Qiyds, cited in Goldziher, The Zahirls, 190-203, though he does not mention custom. See Abf Sinnah, Al-'Urf wa'l- 'Adah, 23; al-Sahi, Al-Madkhal, 290-97.

28 Schacht, "Usul," 615, holds that the discussion of this distinction is purely theoretical.

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disagreement regarding the status of custom and of demands to admit it as a formal source. These demands were rejected.

3. The classical period: a tendency to interpret custom in the light of other legal sources, such as istihsan, with the result that custom came to be regarded as a material source. In contrast to the situation in the first

stage, however, no attempt was made to identify custom with another source of law; it was only made dependent on another source.

4. From the eleventh century onwards, a common tendency, particularly obvious in the work of al-Sarakhsi, was to give custom the force of a written stipulation. This idea is reflected in the principle that

anything dictated by custom is equivalent to something dictated by a written text-a principle found in classical and post-classical legal literature (see below). In parallel, Hanafi jurists attempted to adopt customs as part of thefiqh literature and to incorporate them smoothly by such legal techniques as casuistry, as found particularly in thefatwd literature.

5. The prevalent trend in the post-classical period, mainly from the sixteenth century onwards, was to collect all the legal rulings relating to custom. Essentially, this meant the recognition of custom as a formal source of law, as stated explicitly by Ibn Nujaym. The trend continues in legal works written in the modem period, as reflected, for example, in the Mejelle, although some authorities have questioned the altered status of custom in the Mejelle.29

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

As mentioned, one way to avoid formal recognition of custom was to

identify it with the Prophet's sunna or with ijmd'. Such an identification

may be found in the classical literature in a variety of contexts. Two

examples must suffice here. The first illustrates the struggle to accord custom formal status and its relationship to written texts (nass), referring here not to the Qur'an but to Muhammad's sunna, which was also considered a textual source.31 With regard to the question of

29 See Y. Meron, "The Mejelle Tested by its Application," Israel Law Review, v (1970), 203-15; idem, "Is Custom a Source of Law in Israel?" Israel Law Review, ix (1974), 221-39; and cf. comments by R. Gabizon, "Abolition of the Mejelleh: Custom as a Source of Law" (Heb.), Mishpatim xiv (1985), 325-66, 328ff.

30 The term nass has a variety of meanings. In our context it denotes the Qur'dn and, in particular, the sunna. See Kamali, Principles of Islamic Jurispru- dence, 93: "Nass means a definitive text or ruling of the Qur'an or of the Sunnah."

31 Probably after the compilation of the Sunan collections had been com- pleted-a process that took place mainly in the ninth century but continued into the eleventh century (e.g., al-Bayhaqi).

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whether it is permitted to sell by weight and measure, al-Sarakhsi makes the following statement in his al-Mabsat:

wa'l-aslu anna ma 'urifa kawnahu mikydlan 'aid 'ahdi rasuli Allah salld Alldhu 'alayhi wa-sallamafa-huwa mikydlun abadan wa-in i'tdda al-ndsu bay'ahu waznan wa-md 'urifa kawnahu mawzinan ft dhdlika al-waqti fa-huwa mawziunun abadan wa-md lam yu'lam kayfa kdna yu'tabaru fihi 'urfu al-ndsi fi kulli mawdi'in in ta'drafiu fihi al-kayla wa'l-wazna jamlanfa-huwa mikydlun wa-mawzunun wa-'an Abl Yasuf anna al-mu'tabarafi jamii al-ashyd'i al-'urfu li-annahu innamd kdna mikydlanfi dhdlika al-waqti aw mawzinanfi dhdlika al-waqti bi'i'tibdr al-'urfi Id bi-nassin fihi min rasul Alldhi salld Alldhu 'alayhi wa- sallama wa-ldkinna naqulu taqriru rasal Allah salld Alldhu 'alayhi wa-sallama iyydhum 'aid md ta'trafiihufi dhilika al-shay'i bi-manzilati al-nassi minhufa-ld yataghayyar bi'l-'urf li-anna al-'urfa ld yu'dridu al-nassa.

[The principle [is as follows]. Whatever was known [to be sold] by measure [viz., capacity] in the time of the Prophet, may God's prayer and peace be upon him, [shall be sold] by measure forever, even if people [subsequently] become accustomed to selling it by weight. Whatever was known [to be sold] by weight at that time [= the Prophet's time] [shall be sold] by weight forever. With regard to something of which it is not known how [it used to be sold], one considers the custom of the people in every place. If it is customary to sell it by measure and weight together, it [shall be sold] by measure and by weight. Abfi Yusuf holds that one takes custom into consideration in everything. For if it was [sold] by measure at that time or by weight at that time, [that situation] was in consideration of custom and not in consideration of a text (nass) from the Prophet, may God's blessing and peace be upon him. We, however, hold that the confirmation by the Prophet, may God's blessing and peace be upon him, of those things, according to that which was customary for that thing, has the status a text (nass = sunna) and cannot be altered by custom, because custom cannot prevail over a nass.32

This passage reflects an interesting difference of opinion between Abf Yusuf, one of the first Iraqi legal scholars and a leader of the Hanafi school, and al-Sarakhsi, an eleventh-century pillar of that school. The bone of contention was an important principle of Islamic

legal theory: the status of custom relative to sunna. Abii Yfsuf's view admits two interpretations. On the one hand, he may be understood as

stating that, as the source of sunna is custom, any change in custom should automatically validate the new custom. Such a principle does

32 Al-Sarakhsi, Mabsat, vol. 12, 142; cf. al-Tfsi, Khildf, vol. 2, 26; cited from al-Marghinani, Hiddya, vol. 6, 151, and see al-Marghinani's comment (ibid).

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not constitute an essential modification in the status of sunna, but rather an application of the very basis of sunna: as sunna and custom are both based on common practice, any new practice, that is, any new custom, prevails over an earlier sunna. On this view, a text (nass =

sunna) based on custom must yield to a new custom. Abi Yusuf is thus inclined to elevate the status of custom and grants it, in a sense, formal recognition.33 However, one might also say that Abf Yfsuf does not consider custom from Muhammad's time as necessarily constituting sunna, and accordingly no contradiction may arise between custom and sunna (= nass). In that case, the disagreement would concentrate on the question of whether or not a custom practiced in the

Prophet's day should be considered a sunna, not on whether custom

prevails over sunna. The first interpretation of Abu Yusuf's view of custom would seem

to be supported by his position on the validity of pre-Islamic practices, as reported in his name by al-Baladhuri.34 Abfi Yfisuf's view was

clearly explained by al-Marghinani: wa-'an Abi Yisuf innahu ya'tabiru al-'urfa 'ali khildfi al-mansisi 'alayhi aydan li-anna al-nassa 'ald dhdilika li-makdni al-'ddatifa-kdnat hiya al-manzura ilayhd wa-qad tabaddalat.

[On the authority of Abi Yisuf, who also takes into consideration a custom that contradicts an explicit textual ruling, since the explicit textual ruling is based on it due to the status of custom, and [people] take it into consideration and it was replaced...]35

Unlike Abuf Yisuf, al-Sarakhsi held that custom cannot prevail over a written text, even if the origin of the text lay in custom or practice.

33 Provided one assumes that the laws based on custom are from Muhammad's time. See Mejelle, arts. 39, 118. As an analogy, one might say that if a new custom has the power to abrogate an old one, it is legitimate to modify art. 118 of the Mejelle, which is based on custom, despite the status of the Mejelle as a codex of laws.

34 See J. Schacht, An Introduction to Islamic Law (Oxford, 1964), 19: "Abf Yusuf held that if there exists in a country an ancient, non-Arab sunna which Islam has neither changed nor abolished, and people complain to the caliph that it causes them hardship, he is not entitled to change it; but Malik and al-Shafi'i held that he may change it even if it be ancient, because he ought to prohibit (in similar circumstances) any valid sunna which has been introduced by a Muslim, let alone those introduced by unbelievers" (Schacht's translation). Similarly, Abu Yusuf considers custom on a level with written sources in connection with conjugal financial obligations; see al-Sarakhsi, Mabsat, vol. 3, 105. For Abu Yisuf's attitude to custom, in contrast to that of Abu Hanifa, see al-Tfisi, Khildf, vol. 2, 213.

35 Hiddya, vol. 6, 157. See also the commentaries (ibid.), especially that of Ibn Humam (p. 158) on the page to the text there, and Ibn 'Abidin, Majma'dt Rasd'il, 119. Compare another instance in al-Mawardi, Adab al-Qddi, vol. 2, 207, in connection with rights of access between two partners after the division of the property.

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According to al-Sarakhsi, Muhammad's sanction grants a custom the status of nass, so that another custom cannot change it.36 This clearly implies that the recognition of a custom that does not conflict with a written text presents no difficulty. The view just enunciated may be derived from the views of early Hanafi scholars, such as Abi Hanifa, al-Shaybani and al-Quduri. It was aptly formulated by al-Qudfri: Wa- md lam yanussa 'alayhi fa-huwa mahmulun 'ala 'ddati al-ndsi [Any- thing concerning which there is no [explicit written] text is treated according to people's practice]. If we have correctly interpreted Abu Yusuf's view, this implies that when a custom contradicts a nass, the latter must prevail.

Abf Yisuf's position was rejected in the classicalfiqh literature in favor of the opposing view: nass prevails over custom-and it was this latter view that colored much of the treatment of custom by Hanafi jurists. Al-Marghinani states: li-anna al-nassa aqwd min al-'urfi wa'l-

aqwd la yutrak bi'l-adnd [= ...because an explicit textual ruling is

stronger than a custom and one does not abandon something stronger in favor of something weaker].37 The principle appears several times in al-Sarakhsi's al-Mabsut in connection with different topics.38

Despite the rejection of Abf Yusuf's view by other Hanafi scholars, al-Sarakhsi, like other jurists, sometimes attempts to legitimize accepted practices. One means to that end was to subsume the custom in question under the heading of sunna. For example, al-Sarakhsi, dealing with the institution of istisnd'--immediate payment of a fee to a craftsman for an object not yet in existence at the time of payment, to be delivered later-attempts to identify the accepted practice with sunna and ijmd':

idhd istasna'a al-rajul 'inda al-rajuli khaffayn aw qalansuwatan aw tastan aw kawzan aw aniyyatan min awdnl al-nuhds fa'l-qiydsu an Id yajuza dhdlika li-anna al-mustasna'ufihi mabiun wa-huwa ma'dimun wa-bay'u al-ma'dumi la yajuzu li-nahyihi salld Alldhu 'alayhi wa- sallama 'an bay'i md laysa 'inda al-insdni thumma hddhafi hukmi bay'i al-'ayn wa-law kCna mawjudan ghayra mamlukin li-'dqidi lam yajuz

36 For disagreement on this subject, see also Ibn Nujaym, Al-Ashbah, 40; Ibn 'Abidin, Majmu'dt Rasa'il, 116; Ibn Humam, Hiddya, 158.

37 Hiddya, vol. 6, 157. 38 In connection with abutters' rights: Mabsat, vol. 14, 136; in connection with

murabaha: ibid., vol. 13, 71; in connection with waqf: ibid., vol. 12, 45; in connection with nakedness in the bathhouse: ibid., vol. 10, 146. It sometimes seems that scholars preferred a lenient interpretation of nass in order to bridge the gap between the written sources and common practice; see, for example, ibid., vol. 10, 147-48, in connection with the building of bathhouses for women-despite the fact that Muhammad forbade women to go to the bathhouse; see also ibid., 155.

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bay'ahufa-ka-dhalika idhd kdna ma'dfman bal awld wa-ldkinna naqiul nahnu taraknd al-qiydsa li-ta'dmuli al-ndsi fi dhdlika fa-innahum ta'dmaluhu min ladun rasil Allah salld Allah 'alayhi wa-sallama ild yawmind hddha min ghayri nakir munkarin wa-ta'dmulu al-ndsi min ghayri nakirin aslun min usulin kabirun li-qawlihi salld Alldh 'alayhi wa-sallama md ra'dhu al-Muslimuna hasanan fa-huwa 'inda Allah hasanun wa-qdla salld Alldh 'alayhi wa-sallama ld yajtami'u ummati 'ali dalala wa-huwa naziru dukhuli al-hammdmi bi-ajrin fa-innahu jd'izun li-ta'dmuli al-ndsi wa-in kdna miqddru al-makathi fihi wa-md yusabbu min al-md'i majhulan wa-ka-dhdlika shurbi al-md'i min saqqa'in bi-fals wa'l-hijdma bi-ajrin jd'izun li-ta'dmuli al-ndsi wa-in lam yakun lahu miqddrun.

[If one person commissions from another person a pair of shoes, head- dress, washbasin, jug, or a copper bowl, on the basis of legal analogy, this transaction is not permitted, because the object commissioned [from the craftsman] is sold when it does not actually exist, and the sale of a nonexistent object is not permitted. Indeed, the Prophet, may God's prayer and peace be upon him, forbade the sale of any object that is not owned by the parties; and if this is the case with regard to the law for the sale of an existing object that is not owned by a party to the contract [the vendor]-its sale is forbidden-how much the more so when the object does not exist at all. However, we hereby declare that we renounce the application of the legal analogy, because people customarily practice such [transactions], as they have been doing since the days of the Prophet, may God's blessing and peace be upon him, until our time, without anyone having condemned [the practice]; and customary practices of the people that have not been condemned constitute an important source (asl), because of the words of the Prophet, may God's blessing and peace be upon him: "Everything that Muslims regard as good is good in God's eyes," and he asserted, may God's blessing and peace be upon him, "My community will not agree on an error." The matter is similar to entering a bathhouse upon payment of a fee, which is permitted in consideration of people's practice, although the duration of a person's sojourn [in the bathhouse] and the quantity of water that he will use are unknown. The same applies to a person who pays with a coin to drink from a water carrier, or pays a fee for bloodletting- since this is people's custom,39 although the quantity is unknown.]40

39 We have translated ta'dmuli al-nasi as "people's custom," that is, in the same sense as 'urf and 'ddah; but cp. Johansen as cited above, n. 4.

40 Mabsut, Kitdb al-Buyu', vol. 12, 138; cf. al-Kasani, Badd'i', 5:3; Udovitch, "Islamic Law and the Social Context of Exchange," 455. On the same topic see also al-Sarakhsi, ibid., vol. 15, 160. Some of the examples are mentioned by al- Mawardi (Adab al-Q.dl) in the category of istihsdn only. On istisnd', see now Nissreen Haram, "Use and Abuse of the Law: A Mufti's Response," in Islamic Legal Interpretation: Muftis and their Fatwas, ed. Muhammad Khalid Masud, Brinkley Messick, and David S. Powers (Cambridge: Harvard University Press, 1996), 72-86.

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The practice of istisna' contradicts an established principle of Islamic law, which admits only transactions involving real objects and forbids the sale of an object not yet in existence at the time of the sale. Al-Sarakhsi's simple analogy reasons from an object not owned by the vendor, whose sale was forbidden by Muhammad (the asl = root of the analogy), to an object that does not exist at all (thefar' = the conclusion); accordingly, such a transaction is forbidden. However, from an economic point of view the accepted practice had to be sanctioned in some way. Al-Sarakhsi justifies it, not by recognizing the custom as a source of law, but by deriving it from sunna, on the one hand, and ijmd', on the other, tying the two sources together.

Al-Sarakhsi's attempt to form a link with sunna is evident in the passage "as they have been doing since the days of the Prophet till our time, without anyone having condemned the practice; and transactions among people that have not been condemned constitute an important source." Al-Sarakhsi is appealing here to the classical definition of sunna-which includes, among other things, everything that the Prophet said, did and condoned by his silence-in order to validate the custom without explicitly citing a hadlth to support it.41 This is essentially a case of a sunna contradicting a legal analogy which itself is based on a sunna. The jurist's conclusion is, therefore, that either the sunna is not authentic, or the analogy is faulty.

The association with ijma' is implicit in the explanation that al- Sarakhsi cites in Muhammad's name: "'Everything the Muslims regard as good is good in God's eyes,' and he asserted, 'My community will not agree on an error."' Thus al-Sarakhsi brings together the two narrative reports that form the basis for ijmtd in order to justify the custom of istisnd' and reject the legal analogy. In so doing, he blurs the distinction between custom and consensus: if all Muslims adhere to a certain practice, they are surely agreed upon it.42 In general, there appears to be a connection between the acceptance of certain arguments for the authenticity of a sunna, particularly the criterion of tawatur, and the justification of ijmi'. The concept of tawCtur, namely, that a haduth

41 This may well be a genuine sunna (though unsupported in the hadith literature); but it may also be an attempt to associate istisnra' with sunna in order to legitimize the custom.

42 For a similar appeal to consensus of all Muslims, see Mabsut, vol. 15, 166. In fact, this is an application of istihsdn, although al-Sarakhsi does not explicitly say so. On consensus and its sources in Islamic law, see G. F. Hourani, "The Basis of Authority of Consensus in Sunnite Islam," Studia Islamica, xix (1964), 13-60; for istihsan as a source of law, see J. Makdisi, "Legal Logic and Equity in Islamic Law," The American Journal of Comparative Law, xxxiii (1985), 63-92.

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supporting a sunna is transmitted by so many different channels that

forgery is out of the question, is itself dependent, in a sense, on general agreement; it ultimately provided a rationale for the consideration of consensus as a source of law independently of the justification of the sunna.43

The commissioning of a craftsman to perform a given task is the

prototype of all sale contracts based on immediate payment for an

object to be provided in the future; such contracts, known as salam, are

recognized by custom.44 In parallel with istisnd' and salam, al-Sarakhsi follows earlier generations of jurists in admitting the validity of credit, known as nasF'a-immediate delivery of goods or services against future payment:

wa-ldkinna naqula al-bay'u bi'l-nasiati min san'i al-tujjdri wa-huwa aqrabu ild tahslli maqsuidi rabbi al-mali wa-huwa al-ribhu fa'l-ribhu fi'l-ghdlibi innamd yuhsalu bi'l-bay'i bi'l-nas'ati dina al-bay'i bi-naqdi wa-li-anna tasllta al-muddribi 'ald al-mdli laysa bi-maq.udi rabbi al-mali innamd maqsiuduhu tahstlu al-ribhi bi-tariqi al-tijdrati...wa- lahu an yubdi'a li-anna al-ibdd'a min 'ddati al-tujjdri wa-yahtdju al- muddrib ilayhi li-tahsili al-ribhi.

[However, we are of the opinion that sale by credit is the practice of merchants and it is the most efficient means to achieve the goal of the investor, which is profit. In most cases one can achieve profit only by selling on credit and not by selling for cash. This is because the capitalist does not intend to give the partner control of the money; rather, his sole intention is to attain a profit by means of commerce. And one may entrust his goods to the care of another [usually to be sold] because this type of commercial collaboration is the custom of merchants and a partner5 needs it in order to make profits.]46

43 On tawdtur, see Juynboll, Muslim Tradition, 212 n. 206, and ibid., 7, 96- 98; Hallaq, Law and Legal Theory, IV 9-24, esp. 10. On the connection between tawdtur and consensus, see ibid., IV 23, esp. n. 54.

44 On the salam contract, see Johansen, "Casuistry," 149. Istisnd' is essentially a salam contract, despite some differences; see Schacht, Introduction, 155. On the connection between the hadith prohibiting the sale of as yet nonexistent goods and the salam contract, see Kamali, Principles of Islamic Jurisprudence, 287-88.

45 Arabic: muddrib, denoting a special kind of partner; see A. L. Udovitch, Partnership and Profit in Medieval Islam (Princeton, 1970), 35, 174-75; and see ibid., 101, 134, for the notion of bidd'a or ibdd'.

46 Mabsat, vol. 22, 38. On profit in the salam contract see ibid., vol. 12, 125. Al-Sarakhsi follows al-Shaybani, whom he quotes at the beginning of the above passage, in contrast to Ibn Abi Layla, who forbids selling on credit; this disagreement may be an early sign of the controversy over the recognition of custom as a legitimate source of law. See also al-Sarakhsi, ibid., vol. 12, 45: wa-bi-hddha al- tariq jawwaznd al-istibdd' fima fihd ta'dmul li-qawlihi 'alayhi al-salat wa'l-saldm md ra'ahu al-Musliman hasanan a-huwa 'inda Allah hasanun [And in this way we have also confirmed the sale of goods, insofar as that is common practice, because

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Al-Sarakhsi similarly identifies custom and ijmd' in other areas of law. He does so, for example, in connection with the custom of

endowing movables as waqf (whereas, strictly speaking, Islamic law

recognizes endowment of landed property only) and the institution of istibdda'.47

Al-Kasani appeals to consensus in order to justify the custom of murdbaha:

wa-'urfu al-Muslimin wa-'ddatuhum hujjatun mutlaqatun qdla al-nabi 'alayhi al-saldt wa'l-salam md ra'dhu al-Muslimiuna hasananfa-huwa 'inda Allah hasanun... mrd ra'cihu al-Muslimlina qabihan fa-huwa 'inda Allah qablhun... wa'l-ta'wilufi hidha al-bdbi 'ali al-'ddati....

[The custom of the Muslims and their usages constitute an absolute proof. For the Prophet, may prayer and peace be upon him, said, "Everything that the Muslims regard as good is good in God's eyes... and everything that the Muslims regard as reprehensible is reprehensible in God's eyes... The explanation in this chapter is according to custom.]48

The Shi'i al-Tusi (d. 459/1067), a close contemporary of al-Sarakh- si, also relies on ijmdc to substantiate a custom dating to Muhammad's time. The context is the question of whether bread may be lent and, if so, under what conditions:

wa-aydan huwa ijmd' fa-inna al-nasa yastaqridiina min 'ahd al-nabi salld Alldh 'alayhi wa-sallama ild yawmind [hddha] min ghayr tandkur baynahumfa-man khdlafa khdlafa al-ijmd'.

[Moreover, this is a generally agreed thing, for people have lent bread since the time of the Prophet, may God bless him and grant him peace, without any one of them deploring [the usage]. Thus, whoever dissents, dissents from the consensus.]49

This line of reasoning was ultimately adopted by the classical and

post-classical jurists,50 and is indeed invoked at the beginning of Ibn

he-prayer and peace be upon him-said, "Everything that the Muslims regard as good is good."].

47 Al-Sarakhsi, Mabsit, vol. 15, 171. Late commentaries explain al-Sarakhsi's approach as relating here to a specific custom that conflicts with a general principle, for which reason the custom must prevail. See in this context also ibid., vol. 15, 85, and examples ibid., 86, 88, 90, 93, 99, 102. See also ibid., vol. 19, 46 and al-Marghinani, Hiddya, vol. 6, 78, 85. For istibdd' see n. 45 above.

48 Al-Kasani, Badd'i', vol. 5, 223. 49 Khildf, vol. 2, 77, and see also commentators on al-Marghinani (Hiddya,

vol. 6, 85, 157, 244, 245) who state that custom prevails over qiyds as it is equivalent to ijmd'. For example, the commentary to Hiddya, vol. 6, 157 reads: li- anna al-'urfa bi-manzilat al-ijmd'i 'inda 'adam al-nass [...insofar as custom has the status of ijma' whenever there is no explicit textual rule]. 50 See, for example, Sayf al-Din Abi al-Husayn 'Ali b. Abi 'All Muhammad

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Nujaym's and al-Suyuti's treatises.51 Ibn Nujaym points out that the argument was necessary because neither Qur'an nor hadlth contains any hint of custom as a source of law.52

3. Custom as a Material Source

i) Istihsan (judicial or personal preference) versus qiyas (analogy) We have seen how some scholars attempted to identify custom with sunna or ijmd', and thereby to reject qiyds. The standard method of legitimizing customs in the classical period, however, was to derive them from other principles, mainly istihsan, that is, to treat custom as a material source, without directly recognizing it as a formal source.

Legal analogy, as a recognized source of law operating through the rules of qiyds, is generally considered to overrule custom. Nevertheless, Muslim jurists consider the principle of istihsdn or judicial preference as a sufficient reason to rejectqiyas, with the result that qiyds gave way not to custom but to istihsdn. However, the power of istihsdn was somewhat limited. On the one hand, this reflects the weak position of custom, which remained unrecognized as an independent source, constituting only a material source. On the other hand, the rejection of qiyds by istihsacn implies a certain weakness of qiyds which, like custom, is of human origin and does not derive from divine revelation. The idea that custom overrules qiyds is stated explicitly by al-Muqaddasi (d. ca. 946 C.E.), who writes: lammi kdna al-ta'drufu 'indand muq- qadaman 'ald l-qiydsi [insofar as custom takes precedence over legal analogy].53

The adoption of custom through istihsdn is particularly common in the works of al-Sarakhsi, who was probably following in the footsteps

al-Amidi (d. 631/1233), Al-Ihkamfi Usul al-Ahkdm (Beirut, 1984), vol. 4, 212-13. 51 See Ibn Nujaym, al-Ashbdh, 37; al-Suyuti, al-Ashbdh, 63. 52 Most probably, however, the hadlths on which consensus is based are also

dubious (see, for example, Hourani, ibid.; Abu Sinnah, Al-'Urf wa'l-'Adah, 25). This supports the thesis that the attempt to identify custom and ijma' is also late.

53 Muhammad b. Ahmad al-Muqaddasi, Ahsan al-Taqdsim fi Ma'rifat al- Aqdlem (Leiden, 1967), 272 (cited by Goldziher, Zihirls, 181); see also al-Mawar- di, Adab al-Qddi, vol. 1, 612. It is perhaps not uninteresting that R. Abraham Maimon (Maimonides' son), perhaps the first Jewish scholar to compare custom to other sources of law, does so in language similar to that of the Muslim jurists, although his conclusions are different: "Those customs (Heb. minhagot) that the Sages, of blessed memory, command us to obey and forbid us to oppose are customs for which there is proof neither in Scripture nor by analogy that implies the opposite..." (Abraham ben Moshe ben Maimon, Sefer Ha-Maspik Le'Ovdey Hashem [Kitdb Kifayat al-'Abidin, ed. N. Dana, Ramat-Gan 1989], 72; and see also ibid., 177-78).

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

previous example--"we renounce the application of the legal analogy, because people customarily practice such [transactions]"-though al- Sarakhsi does not explicitly refer to istihsin. Elsewhere in al-Mabsut, however, he writes, citing al-Shaybani:

al-istihsdnu tarku al-qiydsi wa'l-akhdhu bi-md huwa awfaqu li'l-ndsi wa-qila al-istihsdnu talabu al-suhiula fl-ahkamifimd yubtal fihi al- kh.ssu wa'l-'dmmu wa-qila al-akhdhu bi'l-sa'ati wa'ibtighd'u al-da'ati.

[Istihsdn is the renunciation of analogy and the adoption of what is more fitting for people. Some say: istihsdn seeks to introduce more lenience in laws in connection with difficulties encountered by the individual and the general public (viz., everyone).54 Some say: it is to give wide latitude and to solicit comfort].55

Al-Sarakhsi's use of istihsin as a method of admitting customs is so common that he sometimes refers to custom as a form of istihsdn: wa-li'l-istihsdni wajhayn (ahaduhumd) al-'urfu [istihsdn has two

aspects, one of them being custom].56

54 The terms khdass (particular) and 'dmm (general) are used here in the sense of the individual and the public; no reference is intended to special groups (elites) vs. society in general. See El, new ed., s.v. al-Khassa wa'l-'Amma; cf. B. Lewis, The Political Language of Islam (Chicago, 1988), 67.

55 Mabsat, vol. 10, 145; and cf. ibid., vol. 15, 90: al-qiyds yutrak bi'l-'urf [analogy is abandoned in favor of custom], or: al-haraj madfu' shar'an [it is permitted to reject a legal difficulty in order to rule leniently]. For a slightly different definition of istihsan, see Ibn Rushd, Biddya, vol. 2, 185: wa-ma'nd al- istihsdn fi akthar al-ahwdli huwa al-iltifat ild al-maslahati wa'l-'adli [the meaning of istihsdn in most cases is allowance for utility and justice], and cf. ibid., 278. Cf. also al-Mawardi, Adab al-Qadi, vol. 1, 652: "wa-qad 'amalu'l-muslimun bihi istihsanan fa-dalla 'ali an al-istihsdn hujja wa-in l yaqtarin bi-hujja" [The Muslims have already practiced it as istihsan, and this shows that istihsdn is a proof although it is not based on a proof-text] (that it, it is not an independent source), and cf. ibid., 657. According to Johansen ("Coutumes locales et coutumes universelles," 32), istihsan represents a normative dimension of a general practice, a dominant custom in all countries ('urf zdhir fi jamt al-bulddn). In the present essay I have not discussed Johansen's important distinction between a general custom ('urf 'Cmm) and a local one ('urf khd.s; see ibid., 31); this distinction is not common in the pre-classical and classical literature.

56 Mabsut, vol. 15, 142; or cf. ibid., 171: wa-ldkinnahu istihsdnu li'l-'urfi [but istihsan is considered custom]. For other cases cited by al-Sarakhsi in which istihsdn prevails over qiyds, see in connection with suretyship, ibid., vol. 19, 176: fa'l-mdl Idzimun lahu 'indan& istihsdnan...wa'l-istihsdn wajhayn...wa'l-thdnl anna hddha muta'drafun fimd bayna al-ndsi fa-inna raghbat al-nds fi al-kafala bi'l-nafs akthar minhu bi'l-kafdla bi'l-mdl [We consider the debt in force, because of the public good... Public good has two aspects... The second is that this (suretyship) is accepted among people, for the people's desire for suretyship for a person [that is, for the appearance of a debtor in court] is greater than their desire for suretyship for a debt]; and see also ibid., 173, 174, 177. See also Udovitch, "Islamic Law and the Social Context of Exchange," 457; G. Libson, "Suretyship for Person in

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In sum, it appears that by relying on istihsdn as a kind of legal source, Muslim jurists granted custom de facto recognition as a material source of law, without recognizing it formally, thereby narrowing the gap between legal theory, which rejected custom, and practice, which sanctioned its use.57

4. Custom and Dispositive Law

Another approach that enabled Muslim jurists to absorb new customs was to recognize them in the framework of dispositive law, that is, to

recognize custom by virtue of the agreement and stipulation of the

parties. Custom is appealed to here in a rather different way: previously we discussed the position of custom as a source of law in relation to other sources, mainly qiyds; here custom fills a legal void or establishes a legal norm. One expression of this approach is the formula, frequently cited in the Hanafi legal literature, al-ma'lumu bi'l-'urfi ka'l-

Samuel b. Hofni's Book of Suretyship, Maimonides and the Parallel Muslim Literature" (Heb.), Shenaton ha-Mishpat ha-'Ivri, xiii (1987), 121-84, 173 ff. In connection with the distribution of property between a man and his wife see Mabsut, vol. 5, 214: wa-ammd Abu Yusuf rahimahu Allah ta'ald yaqulu al-qiyds an yakun al-kull li'l-zawj li-anna al-mar'ata ma'a md fi yadihd fi yad al-zawj illd anna al-zdhir annahd Id tuzaffu ild bayt zawjihd illd ma'a jihdz mithlihd fa-fi miqddr jihdz mithlihd yutrak al-qiyds li'l-'urfi al-zdhirl [But Abf Yuisuf-may God have mercy upon him-is of the opinion that, according to legal analogy, everything belongs to the husband, insofar as the wife, together with everything in her possession, are in the husband's possession; but the manifest (custom) is that the wife comes to her husband's home with only the "fair" trousseau, and as to the suitable worth of the trousseau, one renounces analogy in favor of manifest custom ...] (al-Sarakhsi frequently uses the expression 'urf zdhir, as he does here, in the sense of an accepted custom; see ibid., vol. 5, 213; vol. 14, 139; vol. 13, 80). Cf. also al-Kasani, Badd'i', vol. 2, 309.

57 On istihsdn see J. Makdisi, "Legal Logic," 63 ff., who tries to show that istihsdn is not equivalent to equity, which, as an independent source, overrides the legal sources of the law, in particular qiyds; rather, it is rooted in other legal sources, such as hidden analogy, which, in that connection, takes priority over apparent analogy. For a discussion see B. Weiss, "Interpretation in Islamic Law: The Theory of Ijtihdd," The American Journal of Comparative Law, xxvi (1978), 202, who cites a view "that istihsdn, far from being an expression of personal preference, was nothing more than the repudiation of one rule based on analogy in favor of the adoption of another based on a more subtle-but ultimately more plausible-analogy." This runs counter to Tyan, who considers istihsdn an independent source. Makdisi's approach is closer to that of Schacht and Chehata, who regarded istihsan as subordinate to the other sources of law. See also W. B. Hallaq, "Consideration on the Function and Character of Sunni Legal Theory," Journal of the American Oriental Society, civ/4 (1984), 679-89, esp. 681 ff.; R. Paret, "Istihsan and Istislah," Shorter Encyclopaedia of Islam, ed. H. A. R. Gibb & J. H. Kramers (Leiden & London, 1961), 184-87, and Encyclopaedia of Islam, 2nd. ed. (Leiden, 1978), vol. IV, 255-59; Johansen, Islamic Law of Land Tax, 31-32 and notes, 54-55.

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ma'lumi bi'l-sharti [What is known by virtue of custom is like what is known by virtue of an agreed condition].58 Other common versions of this saying include: al-thdbitu bi'l-'urfi ka'l-thdbiti bi'l-sharti [What is established by virtue of custom is like what is established by virtue of an agreed condition]; al-ma'lumu bi'l-'urf ka'l-mashruti bi'l-nassi [What is known by virtue of custom is like what is stipulated by virtue of a legally clear text];59 al-thdbitu bi'l-'urfi ka'l-thdbiti bi-dalilin shar'i

[What is established by virtue of custom is like what is established by legal evidence];60 al-ma'ruf ka'l-mashrut [that which is customary is like that which is stipulated].61

This principle is invoked in relation to the rights and duties of parties to contracts in a broad variety of areas: loans, hire, power of attorney, suretyship, damages, service, etc. For example, al-Sarakhsi declares in connection with hire:

wa'l-marji'u fi dhalika ild al-'urfi fi kulli mawdi'in wa-huwa aslun kablrunfi al-ijdratifa-inna md yakun min al-tawdbi' ghayra mashrutin fi'l-'aqd yu'tabarufihi al-'urffi kull baldatin.

[The determination of this matter follows custom in all places, and that is a major principle in regard to hire, so that whatever is not stipulated explicitly in the contract is treated in accordance with the custom in each city.]62

The principle is cited not only by Hanafi scholars, but also by the Sh&fi'i al-Mawardi (d. 450/1058),63 the Mliki Ibn Rushd (d. 594/1198) and the Shi'i al-Tisi (d. 459/1067).64 Thus, for example, Ibn Rushd reports the principle in Malik's name: wa-kana Mdlikun ja'ala l-'urfa

58 Al-Sarakhsi, Mabsut, vol. 15, 90. 59 Ibid., vol. 15, 130, i71. 60 Ibid., vol. 13, 14. See also ibid., vol. 15: 121, 125, 129, 132, 141-42, 147,

157, 160, 164, 167, 169-74, 177, 180-81, 183; vol. 3, 105; vol. 16: 27-29, 41-42, 48-49, 52-58; vol. 19, 40. Another, similar version is: al-ma'ruf 'urfan ka'l- mashriut shar'an [what is known through custom is like what is stipulated by law]; see Johansen, "Coutumes locales et coutumes universelles," 30.

61 Al-Marghinani, Hiddya, vol. 6, 136; and see also ibid., 134, 135, 181. Similar statements may be found in works of other Hanafi authors and of represen- tatives of other legal schools, for example: Ibrahim b. 'Ali b. Yfisuf al-Shirazi (d. 476/1083), AI-Muhadhdhab fi Fiqh Madhhab al-lmdm al-Shdfi'i (Egypt, 1959), vol. 1, 304; Ibn Rushd, Biddya, vol. 2, 331; al-Mawardi, Adab al-QdEl, vol. 2, 180; see also the discussion in Ibn Nujaym, al-Ashbdh, 39; and cf. Abf Yisuf as cited by al-Sarakhsi, ibid., vol. 3, 105: thabitan bi-i'tibdr al-'adati ka'l-thabiti bi'l-nass [...is established in consideration of custom, and that is as if established in a clear text.

62 Mabsat, vol. 15, 121. 63 Adab al-Qdli, vol. 2, 180. 64 Khildf, vol. 2, 36; see also ibid., 164, 203, 326, 407.

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filh bi-manzilati al-sharti [Milik regarded custom in this matter as having a status similar to that of an agreed condition].65

Custom has the power to determine the rights and duties of contract- ing parties not only when the parties themselves have so stipulated, but also as a supplementary source in situations in which no conditions have been stipulated. This is aptly stated by Ibn Rushd: fa-kdna al- mushtarl dakhala 'alI hddha al-sharti bi'l-'dati wa-in lam yadkhul bi'l-nutqi [the purchaser becomes subject to an agreed condition by virtue of custom, even if this is not explicitly stipulated].66 This rule is expressed in Article 44 of the Mejelle, which states, "What is known among merchants is as if stipulated among them."67

The frequency with which the principle was applied in different areas, by scholars of different schools, testifies to the power of custom, despite its nonrecognition as a source of law in the classical literature. Article 45 of the Mejelle ("Whatever is dictated by custom is as if dictated by Scripture") is essentially a restatement of this principle.

5. The Changing Perception of Custom in Post-Classical Literature

We saw in the first section of this essay that, at the beginning of the classical period, some jurists favored recognizing the official status of custom. However, these attempts were rebuffed by the mainstream of legal scholars who, fearing a clash with legal theory, sought-and found-alternative ways to integrate custom into the fabric of their legal system. That they did so despite their refusal to recognize it in formal terms was an outcome of constraints imposed by practice, particularly in the economic sphere. Thanks to these various devices, custom moved from the periphery of legal theory to become a focus of legal attention in the post-classical period of Islamic law. The way was thus prepared for the composition of special chapters on custom in the legal literature, beginning in the early sixteenth century, such as Ibn Nujaym's Al-Ashbdh wa'l-Nazd'ir, al-Suyt.i's similarly entitled work and, in particular, a chapter in a legal treatise by the nineteenth-century Hanafi scholar Ibn 'Abidin (d. 1252/1836). Although no direct ties can be found between this development and the views of the classical advocates of recognizing custom as a source of law, there is no doubt that the classical jurists, in addition to their frequent appeal to istihsin

65 Ibn Rushd, Biddya, vol. 2, 331; and cf. ibid., 214 and especially 188; ibid., 313-14.

66 Ibn Rushd, Bidaya, vol. 2, 188. 67 The Medjelle of Ottoman Civil Law, transl.W. E. Grigsby (London, 1895).

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as a justification of custom, created a climate that was suitable for the later evolution of the concept as a formal source. We are not concerned here merely with a literary phenomenon, but with an expression of a

gradual change in the status of custom. The large number and

frequency of rulings on the subject altered the relative weight of custom and paved the way for its recognition in formal terms.

The formal status of custom, rejected in the classical literature, reemerged in post-classical and moder periods. This development reached its peak in the introductory articles of the Mejelle, several of which, devoted to custom, were culled from early and late fiqh literature; the consolidation of these articles in a single act of legislation reflects the evolution of custom in Islamic law from a material source toward recognition as a formal source. It must be emphasized that the

Mejelle was not a code of religious law but the product of secular

legislation; this constitutes a change in the basic norm of the recognition of custom, and consequently this "proof' of the formal status of custom in Islamic law should be treated with some reservation. Nevertheless, it was the trail that had been blazed, so to speak, by post-classical jurists that enabled the authors of the Mejelle to treat custom as a legal source, as they indeed seem to have done.68

Our account of the development of custom in Islamic law indicates that custom is occasionally disguised as sunna or ijmd', or even as an

ordinary ruling in the fiqh literature, whereas Jewish law recognized custom as a source of law-and indeed relied upon it frequently during the Geonic period. In fact, the two legal systems attained the same goal through different means and they represent two different aspects of the same phenomenon. Further comparison of the use made of custom as a source of law in the Islamic and Jewish legal systems may enlighten us not only about the background which inspired the development and

expansion of custom by the Geonim, but also about the evolution of custom within Islamic law, and hence about the development of Islamic law itself. That, however, is beyond the scope of the present effort.

68 Johansen's argument that general custom ('urf 'mm) may serve as a source of universally valid legal norms (see his "Coutumes locales et coutumes universelles," 34, 35), is essentially equivalent to my conclusion here that custom ultimately became a formal source of Islamic law. I disagree with Coulson ("Muslim Custom and Case-Law," 15), who asserts that custom, "as a legal principle of subsidiary and supplementary value," operated only "within the framework of the four main sources"; but further on (ibid., 19) Coulson concedes that "on none but the highest theoretical plane can it be defined that custom is an important source of law in the world of Islam" (emphasis added).

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