By Guy Burak [Muḥammad al-Timurtāshī] said in Minaḥ al-Ghaffār: “the sijill is the document (ḥujja) where the verdict (ḥukm) of the judge [is written].” But this is in their custom (ʿurfihim, i.e. al-Timurtāshī and his circle). In our custom (ʿurfinā, presumably the custom endorsed by the Ottoman learned hierarchy and affiliates), it is a large … Continue reading Terminological Tensions
By Yossef Rapoport The burying of the hatchets was part of the diplomatic culture among the Iroquois Five Nations of northeastern North America. In negotiating with outsiders, they refer to burying hatchets in a deep hole, over which they planted a tree to symbolize peace. This localized Iroquois custom was encountered by European settlers in … Continue reading Bury the Hatchet, Bedouin Style
By Yossef Rapoport In his introduction to his influential and widely-cited survey on tribal law in the Arab world, Frank Stewart posits that weak pre-modern Muslim states were unable to extinguish the customary laws of the Bedouin, and even allowed these customary laws to take hold in village communities. Following Schacht, Stewart leads us to … Continue reading On the Disinheritance of Women
By Yossef Rapoport Was custom a valid source of law for Muslim jurists? The straightforward, formal answer is no, as customary practice is not one of the classical four sources. But the historically-grounded answer, based on recent extensive scholarship, is that the Islamic legal tradition developed several mechanisms to grant approval to customary practices, even … Continue reading Whose Custom is it?
By Yossef Rapoport Recent scholarship on Islamic law tends to accord a positive value to custom. In Wael Hallaq’s compelling narrative, custom and customary law were the medium by which the universal principles of the Sharīʿa were localized and translated into the social order: "Having evolved over the millennia, and adapting to every political, dynastic and … Continue reading Problematizing Custom and Customary Laws