Today custom (‘urf)1 is recognized as a source of Islamic law, especially by the Hanafi
School of law.2 It is defined as “recurring practices that are acceptable to people of sound nature.” 3 It took a long time for a custom to receive the recognition.4 First, a custom entered into the corpus of Islamic law as Sunnah (sayings, doings and approvals of the Prophet Muhammad). For example, the following rules have their roots in pre- Islamic customs: diyah (blood money payable by the relatives of a killer to the successors of the killed); salam transactions (advance payment for future goods); rahn (mortgage); Page 125 kafa’ ah (equality requirement in marriage); and ‘asabah (inheritance attached to the male line of inheritors).5 Second, the custom came into use as a material in building Islamic law by jurists in the period from late 9th to 12th centuries.6 Through frequent and consistent use over a long period of time the custom assumed the status of a legal source alongside the fundamental sources, which are the Qur’ an, Sunnah, Ijma’(consensus of jurists) and Qiyas (analogical deduction).7 To quote the Hanafi jurist, Ibn Nujaym(d.970/1563):
Know that the consideration of custom and usage reappears frequently in law in many cases, so much that they [viz., the jurists] have transformed it into a legal source, and they said in the usul literature, in the chapter of abandonment of literal meaning: the literal meaning is abandoned on the basis of an indicator found in inferential methods of inquiry and in customs.8
Ibn Nujaym’ s observation later received a State law status by setting forth principles relating to custom in The Mejelle (The Ottoman Civil Law). For example, “Custom is of force,” 9“Under the guidance of custom the true meaning is abandoned,” 10“Custom is only given effect to, when it is continuous or preponderant,” 11“A thing known by common usage like a stipulation which has been made,”
However, all customs do not have the legal force; only “qualified”customs have.
Qualified customs are those which satisfy the particular criteria set by jurists. A modern jurist Sobhi Mahmassani laid down the following criteria:14
Acceptability: A custom must be “acceptable to people of sound nature,”meaning “it must be reasonable, and compatible with good sense and public sentiment.”
Frequency: A custom must be a frequent and recurrent practice in common. In other words, the custom to be effective must be consistent and dominant. This means that with regard to a particular matter, for example a real estate sale, the usual practices of most of the people involved in this business will be given legal weight. If, for example, in real estate business more than one currency is accepted as a means of payment, the currency that is more usually used by most of the people in that business shall be accepted in absence of any written stipulation in this regard.15
Prevalence: It is important to see when the custom has come in prevalence. To receive effect in Shari’ ah it must be in force at the time of or before the transactions. Customs developing afterwards are of no avail in relation to the transactions. Thus, for example, a customary rule will not be relevant to the interpretation of a commercial deed if that custom was not in practice at the time of its conclusion, rather developed later and became relevant at the time of interpretation because “it is generally assumed that documents which are not self-evident and require clarification can only convey concepts that were common at the time they were written.” 16
Subordination to written stipulation: When there is a contract and particular conditions of it are not clearly stated, customary practices will fill the gaps of unwritten conditions. If, however, there are written stipulations, but customs contradict them, the former will take precedence over the latter. For example, it is a local custom to pay half of the dower money at the time of marriage and the rest at some subsequent time. The contract of marriage contains in writing that the full amount would be paid at the time of conclusion of marriage. This written condition shall replace the custom.
Compatibility with Shari’ ah: This is the prime condition for the acceptability of custom as a source of law. This may be termed as the religious condition and the rest mentioned above as the secular conditions. Customs that satisfy the secular requirements shall not be accepted in the domain of Islamic law if they are incompatible with the established legal sources (which include the Qur’ an, Sunnah, and ijma)17 or the spirit of Shari’ ah.
In Siyar18 or Islamic international law, custom is one of the important sources. A modern jurist Muhammad Hamidullah defined Siyar as follows: “[T]hat part of the law and custom of the land (a Muslim State) and treaty obligations which Muslim de facto or de jure state observes in its dealings with other de facto or de jure states (Muslim or non- Muslim).” 19 In this definition, Hamidullah has included three principal sources of Siyar, which are law, custom and treaty, along with some additional sources at another place.20 By ‘law’he meant Fiqh, i.e. Islamic law emanating from the Qur’ an, Sunnah and developed, on the basis of the Qur’ an and Sunnah, by Ijma and Qiyas.21 Second, custom and usage that developed in international transactions may become a part of Siyar provided that certain requirements are met.22 Finally, treaties are conclusions of Muslim or non-Muslim States. Hamidullah has not, however, laid down requirements or criteria for customs which will qualify as law.
Therefore, this paper is an endeavour to fill this gap. In the first place, this paper will examine the custom requirements set by Mahmassani, which are enumerated above, in order to determine if the requirements may apply to Siyar or if there should be any additional requirement(s) in view of Siyar’ s reciprocal nature.23 Second, after identifyingPage 128the custom requirements for the Siyar purpose, this paper will make an attempt to define the custome requirements in further detail.
In this section, the custom criteria under Islamic jurisprudence would be evaluated to see if they are adequate for the purpose of building Siyar. The jurisprudential criteria which are mentioned in above may be capsulized thus- a custom must be a frequent and dominant practice, which is reasonable, sensible and Shari’ ah friendly. The custom must be in practice at or before the time of a transaction in relation to which the custom is called upon to apply. Plus the custom must not be in conflict with any written stipulation such as a contract. For the purpose of Siyar, those criteria may be restated as follows:
(a) a custom must be reasonable and sensible in the judgment of the Islamic State;
(b) it must be frequently and dominantly practiced in interstate relations in general;
(c) it must be in force at or before the time of an international transaction in relation to which its relevance is in question;
(d) it does not contradict an interstate agreement or treaty provisions; and
(e) finally and most importantly, after fulfilling the above conditions, it must not be in conflict with Shari’ ah or spirit of Shari’ ah.
The above criteria may be classified into two categories: elements of a custom, and conditions for its application. Elements are the ingredients which make a custom together. Of all the above criteria, criterion (b) which is the frequent and dominant interstate practice is an element of an international custom. The other elements are the conditions which must be fulfilled before the custom is accepted as a rule by an Islamic State. The mere presence of a practice between two or more States will not make it a customary rule for any other State(s) unless the latter accepts it as binding upon itself subject to the fulfillment of all the conditions, most importantly friendliness with Shari’ ah. Thus, there must be an initiation of a practice followed by acceptance, thereby turning the practice into law. As such, there are two main elements of a custom to have the force of law under Siyar:
(a) Frequent and dominant state practice at the international plane, and
(b) Acceptance of that practice as law
As noticed earlier, the element of acceptance of custom as law by an Islamic State is absent from Mahmassani’ s formulation of custom requirements. The reason is probably that Mahmassani formulated those requirements from municipal law perspective and hence did not feel necessity of including it. Within a State jurisdiction, the court of law may apply a custom of the majority people, which fulfills the necessary conditions, to settle a dispute between parties who may not be the actual participants in custom creation. Their consent to its creation is of no count. This is not the case with Siyar or international law, however, in which States are sovereign subjects. The salient feature of States’ sovereign character is that they retain the right to independently accept or reject any international obligation. There is no super State above the others to legally impose anything on the other states.24 Here lies the significance of the requirement of acceptance of a custom as law in addition to its initiation: the reciprocity aspect of Siyar.25
In this connection it may be noted that the two elements (frequent and dominant practices and acceptance) are similar to elements of international custom of (general)...