In the Islamic juristic tradition, the relationship between sharīʿa and custom raised important methodological questions, ranging from: the nature and number of sources, formulation of rulings, guidelines for the understanding and interpretation of the scriptural texts, and implementation and application of legal rules particularly in novel cases requiring independent reasoning. In general, most of the questions surrounding custom boil down to two main concerns. The first pertains to the order and hierarchy of legal sources and the degree to which custom can serve as an independent source, especially in cases involving conflict with revelatory sources. The second has to do with the balance that the Islamic legal system had to maintain between the implications of its normative standards, on the one hand, and the practical needs and demands for change, on the other. Eventually, discussions concerning the role of custom in the derivation of legal rules permeated the entire Islamic legal corpus and can be traced in the various legal genres. Within these pre-modern discourses, custom featured frequently in connection with numerous legal themes, but it was always assigned a subsidiary or secondary status relative to the foundational scriptural sources.[1]
In the modern period, the Islamic legal system has undergone radical transformations that resulted in important structural and substantive developments. Two main events were behind these significant changes: the collapse of the caliphate regime and the rise of the nation state; and the legal reform movement.[2] Within this new political and social reality, custom emerged as a full-fledged and independent legal source, and even as a competitor to sharīʿa itself. This is best illustrated by the discussions that surrounded the various civil codes in the newly emerging Muslim-majority nation states, especially in the Arab region. As much as these codes show important common features, they also reveal the particular social, political, and historical factors that influenced each one of them. What is important to note here is that custom emerged as an important component of these debates, in light of the controversies concerning the sources of these codes. For example, the extended discussions that accompanied the draft of the Egyptian civil code of 1949 capture not only the main attitudes on this newly enhanced status of custom as an independent legal source, but also the legal hybridity of the modern Egyptian legal system.[3] The fact that the new civil code listed custom as a source of legislation before sharīʿa and after positive legislation stirred a heated debate on the framing of these sources, which seemed to compromise the normative status of sharīʿa in favor of the two preceding sources. The proceedings of the draft civil code reveal the multiple discussions that surrounded the different phases through which this draft code passed and how the first article indicating the sources of the code was the subject of extended debates and how it was revised multiple times.[4] To begin with, the preliminary draft did not list sharīʿa as one of the main sources but it was included only among the optional resources that the judge may consult in the absence of clear indications in the listed sources. According to this draft, the first source was legislation, which was then followed by custom. When these two sources are silent, the judge should follow “the principles of natural law and the rules of justice.” One passage is then added to explain that in the process of applying these principles and rules, the judge may seek guidance from established rules in judicial precedents as well as in the field of jurisprudence, whether in Egypt or elsewhere. Finally, the judge could also pursue guidance from the principles of the Islamic sharīʿa.[5] Due to the critical remarks that were received during the revision phase concerning the place of sharīʿa among these sources, which was perceived as rather secondary or complementary, the lead author of the code, the prominent Egyptian legal scholar ʿAbd al-Razzāq al-Sanhūrī proposed to list sharīʿa as a formal source and to place it immediately after custom, before the principles of natural law and the rules of justice.[6]
When the draft code was submitted to the Egyptian Senate, al-Sanhūrī tried to explain and justify the logic behind the ordering of these sources. Al-Sanhūrī’s answers, however, did not seem to quell the concerns of his critics and although the code was eventually adopted, the listing of custom as the second source of the civil code remained quite controversial as it signified, at least in the opinions of the critics of the code, a privileged status of custom, presumably at the expense of sharīʿa. For al-Sanhūrī, the new code represented an important step towards the gradual decolonization of the Egyptian legal system but also towards the modernization of both the Egyptian law and classical Islamic rules as well.[7] As for the listing of custom as the second source, the proceedings show that the drafters aimed to ensure a degree of stability during the transition from the earlier code to the new one. Custom was meant to enable the legal system to preserve established rules and precedents from legal practice during the earlier period since the implementation of modern legal codes in the 19th century.[8] On the other hand, critics of al-Sanhūrī and the new civil code complained that the code should have given a more prominent role to sharīʿa and the committee charged with the task of developing the code should have consulted with Islamic law specialists.[9] These critics were not limited to those who commented on the draft during the Senate deliberations but they also included religious scholars, especially Islamic law specialists and practitioners affiliated with the Sharīʿa Courts existing at that time. Some of them even compiled independent works to compare Islamic and modern positive legislations with a view to prove the precedence and superiority of sharīʿa.[10] The impression that the Egyptian civil code compromised the status of sharīʿa was in part supported by certain comments by al-Sanhūrī himself who is reported to have admitted that the Iraqi code, which he also developed along with several other Arab codes, was closer to sharīʿa.[11]
This discussion on the enhanced status of custom in the new civil codes within the nation state context has in many ways influenced treatments of custom in Islamic law in general, which often now include a comparative dimension with positive legislations.[12] On the other hand, this discussion reflects the ongoing controversy between the proponents of a fully Islamic or sharīʿa-based system and the advocates of a modern (secular) legal system – which, in turn, is part of the larger debate on the role of Islam/sharīʿa in the public sphere. Other parts include discussions on topics such as political and constitutional reform, civil liberties, and human rights.
Notes:
[1] Ayman Shabana, Custom in Islamic Law and Legal Theory: The Development of the Concepts of ʿUrf and ʿĀdah in the Islamic Legal Tradition (New York: Palgrave, 2010). See also other posts by Yossef Rapoport on customary law here.
[2] Wael Hallaq, Sharīʿa: Theory, Practice, Transformations (Cambridge: Cambridge University Press, 2009), 357-70.
[3] Mohammed Fadel, “Judicial Institutions, the Legitimacy of Islamic State Law and Democratic Transition in Egypt: Can a Shift toward a Common Law Model of Adjudication improve the Prospects of a Successful Democratic Transition?,” International Journal of Constitutional Law, 11, no. 3 (July 2013): 648.
[4] These proceedings consist of seven volumes that include: the explanatory memo of the preliminary draft; minutes of the committee that reviewed the preliminary draft; the explanatory memo of the final draft; report by the legislative committee in the House of Representatives; minutes of the meetings of the House of Representatives; minutes of the meetings of the Civil Code Committee in the Senate; report by the Civil Code Committee in the Senate; and minutes of the meetings of the Senate. See Wizārat al-ʿAdl, al-Qānūn al-Madanī: Majmūʿat al-Aʿmāl al-Taḥḍīriyya (Cairo: Maṭbaʿat Dār al-Kitāb al-ʿArabī, 1950?), 1:12. See also on the history of this code, ʿAbd al-Razzāq al-Sanhūrī, al-Wasīṭ fī Sharḥ al-Qānūn al-Madanī (Cairo: Dar al-Shurūq, 2010), 1:21-30.
[5] Wizārat al-ʿAdl, al-Qānūn al-Madanī: Majmūʿat al-Aʿmāl al-Taḥḍīriyya, 1:183.
[6] Ibid., 1:190.
[7] In his commentary on the civil code, al-Sanhūrī noted that the inclusion of sharīʿa as one of the main sources in this code represented a major development. He expressed hope that it would lead to further developments in favor of sharīʿa in the future, see al-Sanhūrī, al-Wasīṭ, 1:48.
[8] For example, this is indicated in the explanatory memo while enumerating the three sources used for the development of the new code (comparative law, Egyptian law and judicial precedents, and Islamic sharīʿa), and also in the report by the Civil Law Committee in the Senate, see Wizārat al-ʿAdl, al-Qānūn al-Madanī: Majmūʿat al-Aʿmāl al-Taḥḍīriyya, 1:15; 1:119-20. See also al-Sanhūrī, al-Wasīṭ, 1:37.
[9] Wizārat al-ʿAdl, al-Qānūn al-Madanī: Majmūʿat al-Aʿmāl al-Taḥḍīriyya, 1: 82, 92, 101, 159.
[10] See, for example, Sayyid ʿAbd Allāh ʿAlī Ḥusayn, al-Muqāranāt al-Tashrīʿiyya bayn al-Qawānīn al-Waḍʿiyya al-Madaniyya wa-al-Tashrīʿ al-Islāmī: Muqārana bayn Fiqh al-Qānūn al-Faransī wa-Madhhab al-Imām Mālik ibn Anas Raḍiya Allāh ʿAnh, eds. Muḥāmmad Aḥmad Sarrāj, ʿAlī Jumʿa Muḥammad, and Aḥmad Jābir Badrān, 4 vols. (Cairo: Dār al-Salām lil-Ṭibāʿa wa-al-Nashr wa-al-Tawzīʿ wa-al-Tarjama, 2001). See also Leonard Wood, Islamic Legal Revival: Reception of European Law and Transformations in Islamic Legal Thought in Egypt, 1875-1952 (Oxford: Oxford University Press, 2016), 70-71.
[11] Amr Shalakany,“Between Identity and Redistribution: Sanhuri, Genealogy and the Will to Islamise,” Islamic Law and Society 8, no. 2 (2001): 243. For additional information on al-Sanhūrī and his role in the development of Arab civil codes, see Enid Hill, “Al-Sanhuri and Islamic Law: The Place and Significance of Islamic Law in the Life and Work of ‘Abd al-Razzaq Ahmad al-Sanhuri Egyptian Jurist and Scholar 1895-1971,” Arab Law Quarterly 3, no. 1 (1988): 33-64 and Part II in Arab Law Quarterly 3, no. 2 (1988): 182-214. See also Guy Bechor, The Sanhuri Code, and the Emergence of Modern Arab Civil Law (1932 to 1949) (Leiden: Brill, 2007).
[12]Ayman Shabana, “Custom and Modern Constructions of Sharīʿa: Transnational Juristic Discussions on the Status of ʿUrf,” Journal of Islamic Ethics 3, no. 1-2 (2019): 30-63.
Suggested Bluebook citation: Ayman Shabana, Sharī’a, Custom, and Modern Legal Reform, Islamic Law Blog (June 4, 2021), https://islamiclaw.blog/2021/06/04/shari%CA%BFa-custom-and-modern-legal-reform/)
(Suggested Chicago citation: Ayman Shabana, “Sharī’a, Custom, and Modern Legal Reform,” Islamic Law Blog, June 4, 2021, https://islamiclaw.blog/2021/06/04/shari%CA%BFa-custom-and-modern-legal-reform/)