Chapter 22: Custom Circumscribes Religious Rulings
Legal duties may arise in a variety of contexts but are most generally established by custom, statute (drawn up by a legislative body), or constitutional law. Whatever its source, a legal duty must be owed to the plaintiff by the named defendant in order for a civil suit to be viable.
Common law is nothing other than the common customs that have obtained force of law by being established via the implied consent and practice of illiterate people as unwritten justice - in Latin, jus non scriptum. It has not been instituted by Charter or Parliament - acts reduced to writing and record - but exists in use and practice, unrecorded and unregistered other than in the memory of the people.
A custom begins and grows to perfection when a reasonable act is found to be good, beneficial and agreeable to the nature and disposition of the people. They then use and practise it again and again until, by frequent repetition continued without interruption, it is a custom that has obtained the force of law. In the view of some people, such customary laws are peerless, for written laws made by the edicts of princes, or councils of estates, are imposed upon subjects whether or not they are fit, agreeable or convenient to the nature and disposition of the people.
By contrast, custom never becomes a law to bind people until it has been tried, tested, approved and found not to be inconvenient, for if it had been so it would no longer have been used and would have lost the virtue and force of law. Thus, common law reflects custom and precedent. Statute and deliberate design play no, or at best a minimal, role in establishing the unformulated web of rules that govern the way people deal with each other.
As in certain customary law cultures influential people or groups do have the power to change the norms of customary law, there is no significant distinction between customary law and statutory law. Even though there is no reason for one to be subordinate to the other, there is hardly anywhere in the world where a central power respects and upholds indigenous or minority religious customary laws.
Those who argue that there cannot be two legal systems within one state cite the hierarchical source of law and claim that customary laws could only be applied if they do not conflict with the statutory law of the state. Despite this, it is feasible to introduce an order - through legislation or otherwise - to respect two legal systems if the political will to do so exists.
If customary laws are not inferior to those of other legal systems, and if it is possible for legislators and courts to grant them equal value to that of other legal systems, it is not customary law that is viewed as inferior, but the culture of those from which it springs. Colonizers have historically regarded indigenous peoples and minority cultures as racially and culturally inferior.
Despite such views being scientifically false, substantial parts of the legal order created under colonialism remain in the books of law and - consciously or subconsciously - in the minds of those who apply the law.
The Prophet Muhammad (S) encouraged his followers to forsake prerevelatory Arab customs and traditions that related to adoption, usury and looting, but did not abolish their other customs and traditions. To explore the validity of Arab customs and traditions that still influence the lives of the Muslim population we need to define the word ‘Urf - custom.
‘Urf is defined as 'recurrent practices within society that are accepted by those of sound mind'. For any custom or tradition to have a valid basis in legal decisions it must have the support of sound and reasonable people within society. Practices that promote prejudice or corruption have no value and are not considered.
The Basis Of This Principle
From The Qur'an
It needs to be noted that the word ‘urf, used in Qur'an 7:1991, refers to sound and laudable behaviour and does not, in that context, convey the same sense as it does when it is employed as a technical term by jurisprudents.
The word ‘urf, as used in Qur'an 7:199, derives from a similar word from the same root, ma’ruf - as in the phrase amr bil ma’ruf - to enjoin good behaviour. If society encouraged honourable behaviour and discouraged the doing of iniquitous deeds, only moral values would be evident in society. The Qur'an refers to such recurrent practice as ‘urf.
Shari’ah attempted to amend and regulate Arab customs and bring them into line with the principles of the shari’ah. An example of this is the ruling concerning the liability - aqilah - of an offender's kinsmen to pay blood-money - diyah. In cases of manslaughter, all male relatives of an indicted person are jointly liable to indemnify the victim's family for bodily injury suffered.
Conditions For Valid ‘Urf
For ‘urf to be valid, it has to be reasonable and accepted by those of sound mind, in addition to the following:
1. A Custom Cannot Violate Any Definitive – Qat’i - Principle Of Islamic Law
For example, in some communities, females are disinherited at their father's death, a practice within Bedouin society prior to the advent of Islam. However, as this custom is in contradiction to the rules of inheritance revealed in the Qur'an, it holds no validity in Islamic law.
Nowadays, no one expects interest-free bank or building society loans to be made, despite parties to such contemporary financial instruments being of sound mind. Nonetheless, the levy and payment of interest is not acceptable in Islamic law and the Holy Qur'an considers that such transactions 'wage war against Allah and His Messenger'. In order for the economy to function, shari’ah promotes profit-sharing - mudarabah - a more equitable method to conduct such transactions.
2. Custom Cannot Contravene Any Clearly Stipulated Terms Or Conditions Of A Contract
While it is customary for the cost of formal registration of a property to be borne by the purchaser, should both parties agree that the vendor will cover that expenditure, or that the purchaser and vendor share it equally, the terms and conditions of the agreement overrule such custom.
In many traditions a bride's dowry is paid in two instalments - the first being paid immediately and the second one being deferred. In Iraq it is the custom for the deferred part of dowries to fall due after 12 or 14 years. Most wives do not claim deferred dowry payments unless they become involved in divorce proceedings.
However, if a bride should stipulate that her dowry is to be paid in full on her wedding day, her demand would overrule the customary practice of society.
3. Custom Needs To Be Approved By The Majority Of A Society
Traditional behaviour that is restricted to a select group has no effect on society at large. An example of this concerns items that are to be included in the sale of a property or motor car.
Nowadays, properties for sale list fixtures and fittings to be included in the sale. In the absence of such a list, how does one determine which items are to be included? One suggestion might be to defer to what is customarily understood by estate agents. However, shari’ah does not accept that the customs and opinions of specific trades or professions are valid as rulings for those who do not work in those trades or professions.
Oral And Practical Customs
To define the meaning of a particular term we need to refer to the customs of the society or specific groups that employ it. For example, the understanding of the term 'basic foodstuff may differ depending on what the staple diet of a community is. In one it may be rice, but in others it might be bread, pasta or potatoes.
Similarly, different communities may understand the word 'transport' to apply to a small boat, a donkey cart, a camel, a bicycle, a bus or an executive jet.
Do we understand words used in the Qur'an and Sunnah according to the context in which they are used in the Qur'an, or do we need to look up their meaning in a dictionary or lexicon? All disciplines employ their own terminologies by which their texts are understood.
When someone is charged a price over the market rate, if the overcharge is marginal, they have no legal claim for refund but, if it is considered to be far beyond what is regarded as normal, they become entitled to a refund. Understanding of what is considered to be a marginal or an extreme overcharge rests with the practical customs of the society in which the parties live.
Another example concerns the maintenance of bonds with womb relatives. We know that severance of such relations is considered in Islamic law to constitute a major sin. But for guidance on how to define what is meant by 'the maintenance of bonds', we need to refer to the customs of various societies.
In English society, picking up the telephone to say 'hello' is widely considered to fulfil this duty; on the other hand, Middle Easterners expect relatives to visit them at home and stay for a 'decent' length of time. In some communities it is important to take a bunch of flowers when visiting; in others a box of chocolates is considered to be more appropriate.
Before a custom can be approved, it must be ascertained if it was practised in the presence of the Holy Prophet (S) or error-free Imams (‘a) - If these made no objections, it is considered to have received their indirect approval. The Arabic language refers to this as Al-Sirah al-Muttasilah bi zaman al ma’sumin.
