Role of Customs in Islamic Law: Sources, Inheritance, Marriage, and Jurisprudential Evolution

The Role of Customs in Islamic Law

Custom is that which is established in a woman’s mind by virtue of logic and the sound mind accepts it. Customs are also practices which are being practiced by the society from time immemorial and it is accepted within the norms of the society. Customs might be different for not only different religions, but for different communities, areas, generations, and even for different families.

Definition and Nature of Customs

• Customs are long-established practices accepted by a society.
• They vary by religion, community, geography, and family traditions.
• Each community or religion has specific requisites for a valid custom.
• For instance, the requisites for a valid custom in the U.K. differ greatly from those in India.

There are also some specified requisites of a certain customs, and they were different for different communities, religions. Other than these, there are also some grounds or criteria on which a custom can be abrogated — for example, a family custom is capable of being destroyed by disuse.

Influence of Prophet and Pre-Islamic Customs

The sayings of the Prophet were the main source of law in Islam, which are mainly written in the Quran and also in the form of the Ahadis. There is no doubt that the pre-Islamic customs formed the basis of Islamic Law.

The Prophet accepted some of the prevalent customs but, in some cases, denounced others and introduced new laws — either written in the Quran as the decision of God or mentioned in the Ahadis, the sayings of the Prophet. After the death of the Prophet, his companions also denounced customs which were not in accordance with the teachings of Islam.

Customs in Modern Interpretation

Traditionally, Muslim jurists did not give customs much importance, preferring orthodox laws. However, as time passed, this view changed — particularly in India — due to various decisions delivered by Indian courts.

In other regions, however, customs continue to be given limited preference within the framework of Islamic law.

Summary Table of Customs and Their Role

Sources of Islamic Law

The Islamic law has many different types of sources. The Quran is the primary source, and its decision is final in all cases. However, these sources are strictly hierarchical.

The Quran

The Quran represents the Will of God, communicated through the Prophet by the Angel Gabriel from the original text reserved in the seventh heaven. The Quran, as it exists in its present form, was revised during the time of Usman (13 A.H.).

The Quran does not specifically deal with any particular subject as such. Many parts of it contain theological and moral reflections, with special emphasis on the unity of God and condemnation of idolatry. Therefore, the Quran is not a definite legal code, but in all matters it addresses, it remains the primary and final authority.

There is not much difference in the interpretation of the Quran between Shias and Sunnis. The Sunnis generally confine themselves to traditional interpretation, while the Shias also adopt allegorical interpretation.

Ahadis and Sunna

The Ahadis and the Sunna are next in importance to the Quran in matters of Islamic law.

Collection of Ahadis

The Ahadis were, at various times, subject to forgery by different individuals — sometimes for personal gain, sometimes for political reasons. Nevertheless, many authentic sources of the Ahadis exist. Some of the authoritative collections include:

• Muwatta of Mallik Ibn Abbas
• Musnad of Hanbal
• Sahi Bukhari
• Sahi Muslim

There are also other collections of Ahadis, but the four mentioned above are considered the most important.

Among the Shias, there are notable books such as Tahzib-ul-Akham by Abu Jafar, and a collection of four books collectively called Kutab-i-arbaa. The latter holds greater importance in India.

Sunna

The Sunnas are also considered a secondary source of law, alongside the Ahadis. The Prophet’s approval or disapproval was inferred from his conduct, which was therefore regarded as an important and binding authority upon the common people.

Special reference is made to the “companions” — individuals who had close and frequent contact with the Prophet. When the Prophet’s own conduct or practices were not available, people studied the customs and practices of these companions.

Ijmaa (Consensus)

The third source is the Ijmaa, which ideally refers to the consensus of opinion among the first four Caliphs, the Mujtahids, or the jurists. As time passed, numerous new problems arose that could not be solved using the Quran or the Hadis. Hence, jurists developed a new method of resolution — general consensus among scholars of a particular age. This is what is meant by Ijmaa.

The Sunnis regard the Ijmaa as highly important, but since the first three Caliphs were rejected by the Shias, the latter do not attach much importance to Ijmaa.

Qiyas (Analogy or Reasoning)

Muslim jurists, unable to resolve several issues even through Ijmaa, resorted to a new method — using reason to arrive at discretionary judgments, provided these conformed to the Quran or the dictates of the Prophet. A tradition in the Mishkat shows that the Prophet himself recognized private judgment.

The law was mainly deduced from three sources:

Thus, Qiyas (reasoning by analogy) was ranked below all three mentioned sources. The recognition of Qiyas marked the introduction of reason into Islamic jurisprudence. This method is somewhat similar to the Jewish systems of Halakhic Exegesis and Hermeneutics.

While the Shias give secondary importance to Qiyas, the Sunnis provide greater scope for its application.

Custom as a Source of Law

Custom is that which is established in a woman’s mind by virtue of logic and the sound mind accepts it. In Islamic law, however, customs (adat) are not a recognized source of law, although they are an important source of law. Nevertheless, some jurists such as the Hanafis and the Malikis referred to customs as a source of law and even took steps towards recognizing them.

Even the Prophet recognized the force of customary law. His companions, however, denied some customs on the ground that they were not according to the ideals of Islamic faith. Customs are now regarded as a legitimate source of law, but they are considered inferior in position hierarchically after the Quran, Hadith, and Ijma. However, they were considered superior to Qiyas.

Requisites for Validity of Custom

There were certain requisites for the validity of a custom, failing which the practice was not considered a valid custom.

• The custom must be ancient and continuous.
• It should not be opposed to public policy.
• It must be certain and reasonable.
• It should not contradict established law.

Customs Regarding Inheritance

The customs regarding inheritance varied across different areas, tribes, families, and communities. In some instances, even Muslim families followed customs of different religions.

Example: Custom in Colonial Nigeria

In Colonial Nigeria, there was a custom that if a next-door neighbor died, the neighbor had a right of pre-emption (shufa) if the heirs decided to sell the property. In one case, the heirs offered to sell the property to the neighbor, but she refused on price terms, so it was sold to another person. When the neighbor later sued based on the right of pre-emption, the judge recognized the custom but held that it did not apply here, since the neighbor had already refused the initial offer.

Customs in the Pre-Islamic Era

In the pre-Islamic era, property could be inherited only through a patrilineal system. In nomadic societies, inheritance followed the custom that “patronage belongs to the eldest.” Women were not considered recipients of property.

However, the Quran changed this by establishing that property must also be given to women. The Quran emphasized equitable distribution and reinforced family bonds between husband, wife, and children. It also included relatives who were previously excluded under customary law, thereby improving women’s status and strengthening social unity.

Evolution of Islamic Inheritance Customs

Over time, the Islamic customs of inheritance that gave preference to males have significantly evolved. From the Quranic era to 19th-century Europe, family endowment customs in Islamic law were sometimes viewed as obstacles to social progress.

Eventually, these customs changed to include previously deprived members such as wives and daughters. Hence, while customary law itself did not directly drive social progress, Islamic law evolved by deviating from orthodox customs to support socio-economic development.

Important Cases on Customary Inheritance

Case: Jammya v. Diwan

In this Indian case, a family custom excluded women from inheriting property. The court held that such a custom was contrary to socio-economic development and the security and status of women, thus ruling against it.

Case: Abdul Hussein v. Bibi Sona Dero

In this case, the plaintiff claimed property based on a family custom that denied inheritance to married women. The court upheld the custom since it had been prevalent in the family for a long time. Therefore, custom was given preference over Islamic law.

Case: Parandhamayya v. Navaratna Sikhmani

This case involved a custom known as illatom in the Kamma community of Andhra Pradesh, India. Under this custom, a son-in-law was allowed a share of property and was affiliated with the family. The court held that this custom was valid, having been practiced for over 40 years, and thus it was preferred over Islamic inheritance laws.

Summary

Marriage

Marriage customs were different in various different areas and they were quite prevalent during the ancient times. They might differ even from village to village, according to the circumstances some ceremonies might be shortened or some events might be more emphasized. The customs however in this case have greatly influenced the religious law (hukum).

The Structure of Muslim Marriage

The Muslim Marriage comprises of two parts: Nikah (the marriage contract) and the other are the marriage ceremonies (adat or customs). The ceremonies are generally performed after the nikah. In the Nikah the offer is made by the wife’s wali and is accepted by the groom. The sadaaq or the mehr is offered by the groom to the wife’s wali. This is one of the important features in Islamic marriages.

They have been known to be in practice from the pre-historic times in places like Egypt, Rome etc. The documentary evidence of the Greek papyri from Byzantine Egypt attests to the growing importance of gifts coming from the groom. Sometimes in marriages there were also transfer of property in the bride’s name.

Sadaaq (Mehr) and Its Role

The saddaq was divided into an advance and deferred part. This deferred part would be paid generally during divorce or death of husband to guarantee their economic security.

• Wives could use the deferred saddaq as a deterrent against unilateral actions by their husbands, such as unilateral divorce or taking multiple wives.
• As a result, the mut’a, a compensation gift paid to divorcees by their ex-husbands, became obsolete.
• The mut’a was an obligatory alimony payment during the first century of Islamic rule, later supplanted by the deferred portion of the saddaq.

Thus we see sadaaq had a very important role as they could be directly related to the status of women in the society and their control in the society. But this led to certain controversies because the Muslim jurists did not accept the deferred saddaq on the ground that its time was non-specified. And thus the legal contracts which were written from then on, the deferred part of the saddaq was always specified to be given within a specified time.

Now this marriage contracts also had a depiction of the social status of the people. In earlier Egypt there was a custom of writing contracts in different materials. Those who were rich wrote them in leather or silk, and the commoners did the same in papyrus or paper. Thus I see that customs which were prevalent were adapted and modified accordingly when they were circumscribed within the legal aspect.

Customs After Marriage

There also a custom after the wedding ceremony, when the wife is pregnant, her mother sends a letter to the mother of the husband first, informing her. Then the latter along with some women of her community go and visit the bride after sometime, with a gift known as seulimph, which mainly consists of cradle, jewellery and some money. This custom is still followed in Holland among the Archnese.

This custom thus plays an important role in maintaining relations between the two families. The money paid to the bride is essentially from the mother, males have nothing to do with this. This implies that women have some economic independency and can earn money.

Customs After Childbirth

There is also another custom after the delivery of the child, the wife’s father invites many important persons to his house. There he formally separates the couple into a new household, specifying the amount whether in kind or cash, which he gives to the new household. This custom thus provides support to the newly married couple to get a start with their life. It also evades troubles which a wife may have with her mother-in-law, as they live separately.

Thus I see that the courts were in favor of customs which were in according to general sense of law and equity, if such a condition was not fulfilled but the custom was to be taken into the legal aspect then it was modified.

Conclusion

After having done an extensive research on the customs and their role in Islamic Personal Law, I have come to conclusions that the role of different customs is different. Customs have been always given less priority by the Muslim jurists. However some criteria were given for a practice to be recognized as a custom, which were followed quite ardently.

Some customs have made it to becoming the law while others have been modified according to the changing circumstances. There are also some customs which affect the society and its structure. For example:

• The laws of inheritance have been modified to include women – thus they work for the socio-economic upliftment of the women, but before when they were totally on patrilineal basis they totally deprived women of their due share.
• The case of sadaaq (deferred part), which is paid after the death of the husband or at time of divorce, also helps the wife maintain herself economically.

Also there are some customs which help in maintaining social relations correctly. Like as we have seen the case of seulimph, it helps in maintaining relations between the two families correctly. The separation of the newly married couple from the household also creates a sense of freedom for the couple; there are less chances of the wife having problems with her mother-in-law etc.

Bibliography

Books Referred:

1. Ali Ameer, II : 25
2. Ali, Hamid, Custom and Law in Anglo-Muslim Jurisprudence, pp. 33–34 (1938).
3. Encyclopedia Britannica, Vol. 2, p. 898.
4. Islamic Law and Society, Vol. 7, No. 1, pp. 1–36 at 31 (2000).
5. Lammens : 68.
6. Mitteis, L., Grundziuge und Chrestomathie der Papyruskunde, Leipzig, Vol. I, pp. 225–226 (1912).
7. Morley’s Digest, Introduction p. ccxxxvii.
8. Peters, Ruud and Reinhart, Kevin A., Law, Custom and Statutes in the Muslim World, p. 19.
9. Rahim, Abdur, Muhammadan Jurisprudence, p. 55.
10. Sinnah, Abu, Al-‘Urf wa’l Adah, p. 23.
11. Verma, B.R., Commentaries on Muhammadan Law, p. 8.
12. Wilson, Muhammadan Law, p. 5.

Articles Referred:

1. Jain, M.P., Jaipur Law Journal, “Custom as a Source of Law”, pp. 97–130 at 104.
2. Jayewardene, Chandra, “Achehnese Marriage Customs”, Indonesia, Vol. 23 (Apr. 1977), pp. 157–173 at 171.
3. Encyclopedia Britannica, Vol. 2, p. 898.
4. Wilson, Muhammadan Law, p. 5.
5. Supra note 4.
6. Verma, B.R., Commentaries on Muhammadan Law, p. 8. Ahadis are mainly the cases which have been dealt and decided by the Prophet first-hand and Sunnas are the practices of the Prophet. These were the main foundations of law for the first Caliphs who were companions or relations to the Prophet.
7. Supra note 4 at 7.
8. Supra note 6, at 9. Among them, the Sahi Bukhari and Sahi Muslim are of great importance and are called Jamais. Also, the above-mentioned collections are considered among the Sunnis.
9. Ameer Ali, II : 25, where “Sunna, i.e., traditions” is used. They were mainly the conduct and practice of the Prophet. Sometimes it is also referred to pre-Arabic customs approved by the Prophet.
10. Lammens : 68.
11. Hamid Ali, Custom and Law in Anglo-Muslim Jurisprudence, pp. 33–34 (1938).
12. Morley’s Digest, Introduction p. ccxxxvii.
13. Abu Sinnah, Al-‘Urf wa’l Adah, p. 23.
14. Abdur Rahim, Muhammadan Jurisprudence, pp. 55, 136, 137 (1958). “First, it must be generally prevalent in the country; second, it must not be a merely local usage… confined to a particular period and cannot affect the custom in another age.”
15. Alhaji Ila Alkamawa v Alhaji Hassan Bello and Alhaji Malami Yar, [1998] 6 SCNJ 127.
16. Ruud Peters and Kevin A. Reinhart, Law, Custom and Statutes in the Muslim World, p. 19. The Qur’an treats inheritance in detail (Q. 4:8, 4:11–12, 176).
17. Supra note 16, at 19–20. Discussion on compulsory inheritance shares and division rules.
18. Jammya v Diwan (1901) I.L.R 23 All. 20.
19. Abdul Hussein v Bibi Sona Dero (1917) 45 I.A. 10: “If the custom were well established in one particular family… it might be independent in each case.”
20. Parandhamayya v Navaratna Sikhmani, A.I.R (1949) Mad 825.
21. Mitteis, L., Grundziuge und Chrestomathie der Papyruskunde, Leipzig, Vol. I, pp. 225–226 (1912).
22. Goody, J. and Tambiah, S.J., Bridewealth and Dowry (London: Cambridge University Press, 1973); Comaroff, J.L., The Meaning of Marriage Payments (London: Academic Press, 1980).
23. Islamic Law and Society, Vol. 7, No. 1, pp. 1–36 at 31 (2000).
24. Supra note 17, at 33.
25. Y. Ragib, “Un contrat de mariage sur soie d’Égypte fatimide”, Annales islamologiques, 16 (1980), 31–37; G. Levi della Vida, “A Marriage Contract on Parchment from Fatimid Egypt”, Eretz Israel, L. A. Mayer Memorial Volume (1964), 64–69.
26. Chandra Jayawardena, “Achehnese Marriage Customs”, Indonesia, Vol. 23 (Apr. 1977), pp. 157–173 at 171.
27. M.P. Jain, Jaipur Law Journal, “Custom as a Source of Law”, pp. 97–130 at 104.
28. Abu Sinnah, Al-‘Urf wa’l Adah, p. 23.
29. Soorendranath v Heeramonee, (1868) 12 M.I.A. 81 at 91.

Written By: Arman Das – National Law University, Orissa