Custom and Islamic Law in Modern Scholarship

Abstract

The relationship between custom and Islamic law has been one of the most contested issues in modern scholarship on the Islamic legal tradition. This subject has been closely connected with two major debates that have largely shaped the modern field of Islamic studies in Western academia, namely, the debates on the origins and nature of Islamic law. It is not the goal of this chapter to give a full account of these two debates,1 but rather to illustrate how this issue influenced the development of major positions on the continuums of these debates. Moreover, the subject of custom arises in many disciplines, such as history, law, sociology, and anthropology, though each field has its own methodologies and research strategies. Studies on Islamic law within all these disciplines, however, were heavily influenced by Orientalist scholarship2 and its reconstruction of Islamic legal history, particularly from the late nineteenth to the first half of the twentieth century.3 Generally speaking, modern Orientalist studies on the place, status, and role of custom in Islamic law fall into two main categories. The first includes philological or text-based studies, and the second includes ethnographic or field studies. While the former seeks to determine the impact of customs on the formal construction of Islamic law as documented in its written sources, the latter attempts to determine the degree of agreement or disagreement between customs and Islamic law on the one hand and Islamic law and particular social practices on the other.4 To these, another category may be added, which includes normative juristic studies by Muslim scholars who approach the issue from within the Islamic tradition, building on successive generations of Muslim jurists since the formative period. Admittedly, this classification is neither precise nor exhaustive, but it should help identify and account for most of the studies that have shaped the different discourses on this subject. Moreover, this classification does not suggest that these approaches have been completely separate or independent from each other. This chapter demonstrates that the distinctions are sometimes blurred, or at least are less clear than they initially appear.