Islamic Law

Jurists of modern, Positive Law take customary practice as one of the most important sources of law, taking from much of their Common Law and setting much of it down in statutory form in order to remove any ambiguity as to what is considered legitimate customary practice and what is not. Likewise, Islamic Law reaffirmed a good number of the rights and practices that were known to the Arabs before Islam. It also modified or prohibited a good number of those practices and came with completely new injunctions as well. In this way, it completely regulated the rights and obligations of people in their societal lives on the basis of their needs and interests, always tending toward the best method and solution. The Divine Law, in its civil injunctions, seeks only to provide for the best interests of the people and to preserve their rights; thus, it reaffirms those aspects of customary practice that are in harmony with this objective and with its methods and principles.

The majority of scholars use a statement related from `Abd Allah b. Mas`ûd – one of the greatest jurists from among the Companions of the Messenger (peace be upon him) – as a proof for the status of customary practice in Islamic Law: “Whatever the Muslims see as good is seen by Allah as good.”

The efforts of the Islamic jurists are in agreement with respect to recognizing customary practice, even though they differ greatly in the extent to which they use it. The jurists – especially those of the Hanafî school of thought – have given customary practice considerable weight in establishing and limiting the rights of people in the domain of legal transactions and other aspects of social behavior.

The Hanafî jurists considered customary practice an important principle and a great source of legislation for establishing rights and obligations wherever it does not contradict the sacred texts. Customary practice to them is a valid proof for establishing binding legislation wherever any other proof is not present. It can even take precedence over juristic analogy, because applying an injunction based on analogy in conflict with custom might be cause undue hardship. In this case, the Hanafî concept of juristic discretion comes into play, which allows for the circumvention of analogous reasoning in some instances.

If, on the other hand, customary practice violates a sacred text commanding some other form of behavior, then the custom is rejected. This includes practices such as consuming usury and the custom of imbibing alcoholic beverages on certain occasions. Practices such as these are rejected outright because they are clearly prohibited by the sacred texts.