QUAID-E-AZAM LAW COLLEGE LAHORE

LLB-I
ISLAMIC JURISPRUDENCE
Prof. Amna B. Malik

CUSTOM SOURCE OF SHARIAH

1. INTRODCUTION
And follow the religion of Ibrahim; the same in faith as he was
not from Mushrikin (Al imran: 95)

2. INTERPRETATION OF THE TERM

Following are the literal and legal meanings:
a) Literal Meaning:
A traditional practice of the people.
b) Legal Meaning:
Habitual practice or course of action that characteristically is
repeated in like circumstances.
Blacks Law Dictionarys
3. QURANIC REFERENCE
There is however, no direct authority to act upon custom and usage in
the Holy Quran but there is an indirect authority for recognition of usage. According
to Hidayah, As Allah has enjoined that the husband should either retain the wife
according to well recognized custom or release her with grace or the Qazi will
release her on his behalf.
Customs relating to women, marriage and divorce have been ordained in
Quran with a slight change according to essence of Islam in Surah Baqrah Verse no:
233.

4. ORIGIN OF CUSTOM
Most of these customs can be traced back to Abrahamic traditions in Pre-
Islamic Arabian society.

5. ATTITUDE OF ISLAM TOWARDS CUSTOM

The attitude of Islam towards custom has not been absolutely
abrogative. Though not as valued theoretically as a source of Shariah as in Western
Jurisprudence. Practically it forms most important part of shariah than any other
secondary source of Islamic law. The prevalent practices of the time, when Islam
appeared, Fourteen years ago, where closer to the spirit of Islam were adopted with
very few modulations.

6. STATUS OF CUSTOM IN SHARIAH

Custom ---part of sharia
In Sharia the principle approved custom which afterwards became the part of
Sharia explicit their specific adoption HIDAYAH

7. CUSTOMMIDWAY SOURCE OF SHARIAH

Custom is regarded as midway source of Shariah. Custom is what Shariah
considers to be good and not what human reason or prevalent practices regard to be
good. If some human practices are approved by the Shariah, they are acceptable to the
law. The process of approval prior to acceptance is necessary.
Equal status as that of Ijma
Custom holds the same rank as that of ijma in the absence of Quran
and Sunnah HIDAYAH

8. STATUS OF PRE-ISLAMIC CUSTOMS

The customs that prevailed amongst the Arabs before the advent of
Islam in their territory form an integral part of the history of Islamic Legal System.
The customs tacitly followed implied acquired the consent of the Prophet (pbuh); and
therefore became a part of the religion.

A- ADOPTED
Islam did not altogether abrogate the legal system prevalent in pre-
Islamic days. Those customs which were not contrary to the Quran and Hadith were
retained and the cases were decided in the light of these customs having the force of
law.
The fact is, the ground work of the Muhamadon legal system, like that of
other legal systems, is to be found in the customs and usages of the people among
whom it grew and developed.
(Abdul Rahim The Principles of Muahmmadon Jurisprudence pg.1)
a) Related to family laws
Dower
Khula
Iddat
Adoption of children
Mutta marriage
Right of woman to prove the legitimacy of child
Polygamy (restricted to 4)
b) Related to criminal law
Amputation (punishment for theft)
Whipping (zina)
Stoning
Mode of proof on oath
Retaliation (qisas)
c) Related to business
Sale (2:275) Allah has permitted sale but prohibited riba
d) Related to international affairs
Treaties for peace
Ambassadors
e) Relating to judicial matters
Arbitration

B- ABROGATED
Practices were rejected by the Prophet (p.b.u.h) as they were not in
consonance with the provisions of Quran. Each practice was subjected to the norms of
the Shariah by the Prophet himself, and was either accepted or rejected.
C- AMENDED
Nikkah
 Inheritance

9. COMPARISON BETWEEN ISLAMIC & WESTERN CONCEPT OF

CUSTOM AS A SOURCE OF LAW:
In Western Jurisprudence, custom has been regarded as a legal source of law.
The earlier Mujtahids make only passing reference to custom, and they have neither
considered it as a source of law. In modern times, under the influence of Western
Jurisprudence, some writers have given more importance to custom as a source of
law.

10. CONCLUSION:

Sources of Shariah

Primary Midway Secondary

Custom