undertheorization of custom

7/31/2019 Undertheorization of Custom

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A. Zysow

Draft: Not for Citation

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Those who are at all familiar with Islamic law will know that the two most

developed disciplines in this field are legal theory (uṣūl al-fiqh ) and substantive

law (furū` al-fiqh ). I speak of disciplines rather than genres. Discussions of

problems pertinent to uṣūl al-fiqh may be found in a variety of literary genres: for

example Qur’ānic commentaries. And the same is true of substantive law. While

legal theory and substantive law are the most cultivated disciplines, there are

others, among them the field of “legal maxims or principles” (qawāìd fiqhiyya ),

currently a subject of enormous interest on the part of contemporary Muslim

jurists. Legal theory seeks to identify the sources of Islamic law and to ensure

the validity of the derivation of substantive law from these sources. The legal

principles, on the other hand, arise at least in large part from reflection on the

substantive law itself. To the extent that the history of any of these three

disciplines may be said to be known, the history of the qawāìd is the least

studied. Enough is known, however, to indicate that the literature on qawāìd

currently available was largely the product of Shafiì scholars of the Mamluk

period. The well-known work of the Ḥanafī Ibn Nujaym (d. 970/1536) bears

obvious marks of dependence on the Shāfi`īs.



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These preliminary remarks have an immediate bearing on my discussion of the

theory of custom in Islamic law. I have been guided by two questions: why is

custom so little discussed as a problem of legal theory and what justifications

were offered by Muslim jurists for such appeals to custom as they did make. As

it turns out, these questions are not unrelated, although the former, unlike the

latter, is obviously not subject to a definitive answer. The fact is that the most

developed discussions of custom in Islamic law are found in works on the

qawāìd , not on legal theory. The significance of this point, I suggest, is that the

entire subject of custom has remained under-theorized. This is particularly

noteworthy in a field like Islamic law with so strong a tradition of legal theory. No

one familiar with Jewish law or the Common Law would be surprised to find the

absence of theorizing in those legal traditions on some point or other. But

Islamic Law is different in this respect, and one would reasonably expect a

subject of the significance of custom in the law to have received more

sophisticated analysis.

Assuming the risks of speculation, I further suggest that not only the nature of the

respective disciplines of legal theory and qawāìd are pertinent here but also the

literary history of these disciplines. Legal theory, although it is not a genre, did

early on develop a distinct textual tradition with long standing debates leading to

the writing of popular textbooks with attendant commentaries and

supercommentaries. Although there was a tradition of writing commentaries on

some of the qawāìd works, the field does not seem to have passed through the



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intense debates of early uṣūl al-fiqh in which the most basis assumptions were

questioned, and in which school affiliation often played a minor part. My

suggestion is that by failing to become the object of extensive integrated

discussion in the rich literature of uṣūl al-fiqh , custom escaped the kind of

intensive scrutiny that might have led to adequate theorizing. The literature of

substantive law was unfit for this task. Appeals to custom in this literature would

by the nature of things tend to be sporadic and discrete, a fact that provided the

obvious impetus for the development of the qawāìd . But the qawāìd literature,

which did by default assume the burden of providing a rationale for custom, was

unfit for the task. The upshot is that by Islamic standards the entire topic of

custom remains under analyzed and correspondingly poorly motivated. I stress

that my measure is the high standard achieved by Muslim jurists in addressing

other matters of theory. By other measures the Muslim jurists writing on custom

have not performed so poorly. Anyone who has read the qawāìd literature on

custom will find the treatment of custom in a standard Anglo-American treatise on

jurisprudence such as Salmond to be only modestly superior. Nonetheless it

would do to bear in mind that the great American jurist Karl Llewellyn (d. 1962) in

his article “The Normative, the Legal, and the Law Jobs: The Problem of Juristic

Method” chose entirely to avoid use of the word “custom” as “too blunt and

confused to serve in careful analysis.”

Precisely how “blunt and confused” even in the most authoritative legal writings,

is the Arabic word àda , one of the words commonly rendered by custom, may be



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gauged from the fact that it covers among many other things, a woman’s

menstrual cycle; a standard and important topic in the qawāìd discussions

of ̀āda, not to speak of the universal human `āda of taking nourishment and

breathing. Any treatment of custom in Islamic law must take due note of the

problematic, largely undifferentiated terminology. Certainly customary law and

even custom or habit are too narrow to capture the scope of the Arabic `āda and

ùrf, to mention only the most widely used terms. Perhaps a more adequate

equivalent would be “way” or “manner” which at least have the virtue of

encompassing menstrual cycles (cf. Genesis 18:11: orakh kannashīm: “ after the

manner of women” KJV; ). The jurists are thus engaged in discussions of the

manner of certain things, of the way they are, things that may or may not be

constituted by voluntary actions and even within voluntary actions, may be the

action of individuals or groups. All of these fall under `āda, and ùrf exhibits

comparable ambiguities.



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A coherent discussion of custom in Islamic law can only be achieved by a careful

examination of the various functions of ùrf and `āda in the law. In this paper I

cannot hope to do no more than provide a small map of the terrain. I take as an

obvious, if not inevitable, starting point the short treatise of the Ḥanafī jurist Ibn

`Ābidīn (d. 1252/1836), Nashr al-àrf fi binā’ ba`ḍ al-aḥkām àlā’l-ùrf . Although

some preposterous claims have been made for the importance of this work, it is

rightly among the most cited works on the topic of ùrf in the secondary literature,

including modern works in Arabic. For one thing it has no apparent rival in its

field, and its author has the reputation for being the last of the great Ḥanafī

jurists. In view of the fact that this work has been analyzed by others, I will not

need to provide more than a brief summary of its contents to serve as a basis for

my own discussion. I should, however, point out for those unfamiliar with it that

in large part it consists of citations from other Ḥanafī works marshaled by Ibn

`Ābidīn to build his argument. The text, as we shall see, fully situates itself within

the Ḥanafī school.

In fact, Ibn `Ābidīn’s principal aim was to urge upon Ḥanafī muftis and qāḍīs the

need to update the Ḥanafī legal literature upon which they relied to reflect the

changed circumstances of their own day. Such updating was in fact fully

consistent with and required by the principles of their school. Ibn `Ābidīn

addresses this matter in the longer second part of his treatise. In the first part he



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discusses the relation of ùrf to the recognized sources of law: the Qur’ān, sunna,

consensus, and analogy, but is lead to treat of these questions to the extent that

Ḥanafī school doctrine, his chief concern, rests on these sources. To tackle this

topic, Ibn `Ābidīn immediately introduces a distinction between general and local

custom (ùrf `āmm and khāṣṣ ). He is less interested in another distinction that he

has already cited, that between ùrf constituted by conduct and ùrf in the sense

of a verbal convention (ùrf àmalī and ùrf qawlī ) and focuses throughout on the

former.

Ibn `Ābidīn begins by considering the effect of ùrf in the form of conduct, in

relation to a shar`ī sources, when the ùrf is entirely inconsistent with the sharì ī

norm. For example, the practice of people who engage in ribā , drink wine, wear

silk and gold and so forth. In such case the practice is to be rejected. In other

cases, however, the ùrf is merely inconsistent in part with some legal norm. For

example, the practice of entering into contracts for the manufacture of goods

(istiṣnā`) or making use of a bathhouse for payment. In both these cases there

is an apparent violation of a recognized legal norm, but the norm may still be

applied in other cases. To accommodate these cases Ibn `Ābidīn appeals to the

Ḥanafī doctrine that ùrf may specialize a general norm and entirely displace a

rule based on analogy with a recognized norm. He further recognizes, somewhat

grudgingly perhaps, that the Ḥanafī doctrine, the view of the majority, gives this

effect only to general, not local custom. Ibn `Ābidīn then argues that the Ḥanafī

sources indicate that the general ùrf in question need not be ancient, that is, it

need not be continuous from the time of the Prophet (ùrf qadīm vs. ùrf hādith ).

In the second part of his treatise Ibn `Ābidīn marshals considerable textualevidence to show that Ḥanafī law based not on the revealed sources but on the

ijtihād of the early jurists can be modified when that ijtihād was based on a

particular ̀urf familiar to the jurist. Later Ḥanafī jurists felt free to update such



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school law because they knew that the early jurists would have made the same

changes if faced with the same new circumstances. Not all the textual evidence

marshaled by Ibn `Ābidīn directly deals with ùrf in even the most extended sense,

for he introduces a discussion of the role of circumstantial evidence in the course

of his argument. Nonetheless, he more than makes his case against inflexibility

( jumūd) on the part of muftis who follow their legal texts “without regard for the

times and those living in them.” Such muftis run the risk of destroying many

vested rights and doing more harm than good.

With respect to the question of general as opposed to local ùrf , Ibn `Ābidīn offers

this summary of his results: “the doctrine of the school not to give force (i`tibār )

to local ùrf is confined to where it conflicts with the legal norms (al-naṣṣ al-

sharì ) in which case it neither displaces analogy (fa-lā yutrak bihī al-qiyās ) nor

specializes a tradition (wa-lā yukhaṣsṣ bihī al-athar ), unlike a general ùrf …but

when a local ùrf conflicts with a school norm (al-naṣṣ al-madhhabī ) transmitted

from the founder of the school it is given force, a principle followed by the authors

of the treatises, commentaries, and fatwās on the substantive law that we have

cited and others. Local ùrf includes ancient and new practices as does general

ùrf.

Ibn `Ābidīn’s references to a general ùrf acting to specialize a tradition or to

deprive an analogy of its force according to Ḥanafī doctrine direct us to legal

theory. There we find discussions of both specialization of general terms and of

how an analogy can lose its force in the face of a stronger source, that is to the

topic of istiḥsān . Even a cursory examination of these subjects will show how

superficial is Ibn `Ābidīn’s analysis, apart some of its otherwise problematicfeatures.



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The possibility of a general term in the Qur’ān or ḥadīth being specialized, that is

shown to have been used in less than its apparent full scope, was a standard

topic in legal theory. Ibn Àbidin himself makes a passing reference to al-Taḥīir

of the Ḥanafī Ibn al-Humām (d. 861/1457). There is general agreement that

this is possible when the ùrf is verbal, that is when the Qur’ān or ḥadīth uses a

word that in the Arabic of the time had come to acquire a sense other its strictly

literal one. The ùrf here is that of usage (ùrf al-isti`māl ). The notion, not an

unreasonable one, is that the Qur’ān and ḥadīth use the Arabic of their day albeit

subject to modification in some cases. It would seem that the ùrf in question

could be local provided that it was local to Prophet and those he was addressing.

Far more controversial is the possibility of specialization of a general term by ùrf

in the form of conduct. An example would be a prohibition of unequal exchanges

of the same kind of staple food (ṭa`ām ) when the only staple actually consumed

by those addressed is wheat. The discussion of the problem in the literature of

legal theory is not free from obscurity, and a number of distinct issues were

sometimes conflated or in any case not clearly formulated. The point is

commonly reported as disputed among the schools with the Ḥanafīs and Mālikīs

recognizing such specialization, the Shāfi`īs and Ḥanbalīs rejecting it. The

simplest formulation of the issue would follow the example given, where the

scope of the general term is narrowed by the practice of the community

addressed.



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But Ibn `Ābidīn clearly has in mind a practice that conflicts with the general norm.

Here an entirely different set of issues emerge on which there should be little

room for disagreement among the schools. To survive the general norm the

conflicting practice would need to have been implicitly approved by the Prophet

(taqrīr ) and thus form part of the sunna or to have been approved by

consensus. The point is not trivial but goes directly to Ibn `Abidin’s claim that

specialization can occur through a new custom. It is not at all clear what

justification can be given for this extension. The conflicting practice survives on

the standard account only because it has been somehow sanctioned by the

Prophet, although we may know this only by means of a consensus with that

effect. The consensus does not operate independently in such cases because

specialization serves to clarify the intention of the speaker and is subject to the

constraint that the clarification it provides be available by the time the norm is to

be acted upon. In our case this would be in the time of the Prophet. A new

custom, even a general one, arising centuries after the time of Prophet cannot

meet this test.

The foregoing considerations serve to explain why majority Ḥanafī doctrine limits

specialization of revealed texts to general custom. In the simple case of the

narrowing of the general norm a general custom provides evidence as to the



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basis for this limiting interpretation but only if the custom is ancient, even if in

principle an ancient local custom might be enough. When the question is that

of a custom that conflicts with a general norm, the custom must transmit the

Prophet’s approval, that is, amount to a consensus by action. Ibn `Ābidīn

appeals to a Ḥanafī interpretative principle that general custom can specialize a

general norm but uses the principle without nuance and extends it far beyond

what is warranted.

We have thus identified a central role of ùrf as interpretive. In the first

instance this role is fulfilled by a verbal convention. Here there is no controversy.

The ùrf of the speaker is determinative of his meaning, whether the speaker be

the lawgiver or an ordinary person. The question of the evidence for the

convention in question was not a matter of great concern, although it might have

led to a distinction made between the lawgiver’s speech and that of

contemporaries. The notion of ùrf in speech is firmly rooted in legal theory,

and is thus not subject to the controversy surrounding the extension of the

interpretive role of ùrf to ùrf in the form of conduct. Here there was substantial

resistance to applying ùrf as conduct to narrow the speech both of the lawgiver

and the ordinary person. Does a person who eats only lamb break his vow to eat

no meat by eating beef? Although, as mentioned, the division here is reported to

be between the Mālikīs and Ḥanafīs, who do make this extension, and the



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Shāfi`īs and Ḥanbalīs, who do not, there were prominent Mālikīs who rejected it,

notably al-Qarāfī (d. 684/1285). He argued that not only was the extension

from speech to action invalid but that upon closer scrutiny no one actually

supported this view. All alleged cases of interpretation in light of ̀ urf by conduct,

whether in the interpretation of the revealed texts or ordinary utterances as

reported in the works of the Mālikī and Ḥanafī schools, rested on a verbal ùrf .

Thus he explained the position in the Mālikī school that the tradition “when a

dogs laps from one of your vessels wash it seven times” applies only to water.

This was not because the custom of putting liquids in vessels where dogs could

reach them was limited to water in the Prophet’s time but rather because the verb

“laps” had come to acquire the meaning of lapping water. It is clear in any case

that on both doctrines theùrf is of interest only insofar as exploited by the

speaker in conveying his meaning.

In his discussion of ùrf displacing a competing analogy, Ibn Àbidin is making a

clear reference to istiḥsān . The term istiḥsān does not identify a particular

procedure but is a label for a variety of issue, and was not understood in the



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same sense of all jurists. The Ḥanafī treatment of the matter is the most

extensive. It reflects the importance of istiḥsān in Ḥanafī law and the harsh

critique to which they were subject on its account. Most simply put, istiḥsān

labels a case in which a principle of law is not extended to a particular case, the

analogy, because the extension is blocked by a stronger argument, which may in

fact be another analogy. Ùrf enters into the discussion insofar as one of the

grounds for displacing an analogy is customary practice. But the Ḥanafī theorists

mediate the appeal to ùrf by bringing in consensus as the direct basis for the

istiḥsān. For example the Ìraqi Ḥanafī al-Jaṣṣāṣ (d.370/980) in his discussion of

istiḥsān cites among other examples the contract of istiṣnā` in which the principle

that one cannot sell what he does not have is overridden. In istiṣnā` a cobbler,

for example, contracts to manufacture shoes of a certain description for a set

price. Al-Jaṣṣāṣ spells out the role of consensus in this and other cases as

follows:

The meaning of their [the Ḥanafī jurists] invoking the practice (àmal ) of the

people is that the early Muslims, the Companions and the scholars among the

Followers observed people doing such and such without any of them raising an

objection against those who did it. This amounted to their approval (ijāza ) and

sanctioning (iqrār) of it, since they are those who command what is right and

prohibit what is wrong, as God described them.

But the matter is a bit more complicated than might appear. For one thing

another the Ḥanafī theorists commonly identify necessity (ḍarūra ) as another



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ground for istiḥsān , and one is hard pressed to distinguish some of the examples

grounded in ḍarūra from those based on consensus. For example, al-Sarakhsī

(d. 483/1090) traces the validity of the contract of hire (ijāra) to the need of the

people for it. It is not clear, however, why he could not equally appeal to the

actual unbroken practice of ijāra from the time of the Prophet as he does in the

case of istiṣnā ̀. And of course, there must have been a necessity for istiṣnā` .

Appeals to ḍarūra are something of a last resort, and the association of ùrf with

ḍarūra can be found throughout the legal literature, not least in Ibn `Ābidīn’s

treatise.

The appeal to ḍarūra represents another model of how ùrf enters Islamic law,

in addition to the interpretive model already examined. But the recognition of

brute fact, while perhaps inevitable in some cases, is not particularly consistent

with the spirit of Islam. One need only recall the unacceptable response,

recorded in the Qur’ān, of the Arabian Arabs to the Prophet’s message that “we

have found our fathers doing so.” The appeal to consensus in the cases brought

under istiḥsān is problematic in another way. This is because legal theory

demands that there be a basis (mustanad) for a consensus, more particularly a

legal proof (dalil samì ). Thus the Ḥanafī commentator Àbd al-Àzīz al-Bukhārī

(d. 730/1329), addressing the objection that there is no legal proof for the

consensus on the validity of implied-in-fact sales (bay` al-murāḍat ) or the validity

of the use of a commercial bathhouse, replies that there must have been a proof

in these cases, but consensus has obviated the need to transmit it. We are

thus left unclear as to what precisely is the role of ùrf in istiḥsān.



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The heart of Ibn `Ābidīn’s treatise is his attack on inappropriate taqlīd of the

earlier jurists in their determination of the custom of their day. Such an attack

was not new. Centuries earlier al-Qarāfī launched an even more scathing and

certainly more elegant attack on the same phenomenon. He denounced such

taqīid as against consensus and as amounting to ignorance in religion ( jahāla fi’l-

dīn ). At issue here are the frequent cases in which the law of the jurists is based

on ùrf, and the argument is that what was ùrf in their day may no longer be ùrf

anywhere or at least not in other places. The principles of the school require that

in such cases contemporary jurists consult contemporary ùrf. Al-Qarāfī rejects

the objection that such an updating would require that contemporary jurists

practice ijtihād . Rather what he calls upon them to practice is proper taqlīd . He

further warns jurists against consulting solely their own intuitions in determining

what is common verbal usage. Jurists by training are too steeped in old legal

texts to make such determinations without looking at what is happening around

them.

The crucial underlying principle here is that “in what is not determined by

language or law recourse is had to ùrf .” Common examples, among many, of

the application of this principle are the determination of what amounts to

safekeeping (ḥirz ) in the law of theft, what constitutes reclamation of land, what is

allowable lapse of time between offer and acceptance, which faults in



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merchandise give the buyer the right to rescind. A version of this principle is

identified by al-Jaṣṣāṣ as a distinct sense of istiḥsān , one in which the law calls

for the jurist to resort to ijtihād and probable opinion (ghalabat al-ra’y). .

Al-Jaṣṣās already notes that the cases in which this form of istiḥsān is used are

innumerable, and he declares himself unable to see how any jurist could contest

its validity. Echoes of his language can readily be found in later texts. What we

have here is ùrf as determining a legal standard or definition.

Proof-texts from the Qur’ān and ḥadīth were sometime adduced to support

reliance on ùrf. But, while such texts might provide validation for appeals to

custom, they did not in themselves provide justification, and thus could not offer

guidance as to the limits of such appeals. Jurists commonly identify the function

of ùrf in the cases now under consideration as that of defining and determining

(tahdid, taqdir ) in instances where there is no other available standard from the

law itself or from language. But why resort to ùrf ? The answer, insofar as the

question is addressed at all, appears to invoke a further justification for the legal

recognition of ùrf . Ùrf represents what is reasonable. In his all too brief

discussion of àwāìd in his Sharḥ Tanqīḥ al-fuṣūl al-Qarāfī rebuts the charge that

reliance on custom is peculiar to the Mālikī school. It can he insists be found in

all the schools and explicitly so. As for providing a justification for this, he refers



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back to his justification for istiṣḥāb, the presumption of continuity. There he

defends reliance on istiṣḥāb as following what has likelihood in its favor (al-ṭaraf

al-rājiḥ ), giving as paradigms for this the determination of tort damages (urūsh al-

jināyāt ) and reliance on witnesses for evidence (ittibā` al-shahādāt ). Elsewhere

al-Qarāfī makes a passing reference to the alternative to recourse to custom

being “sheer arbitrariness” (taḥakkum ṣirf ). For how else but by resorting to ùrf

could one determine an entire array of questions? This justification, as

persuasive as it may be, goes only so far. It leaves open the question of where

precisely recourse to custom is required and importantly what is the justification

for not limiting recourse to custom where possible to the custom prevalent at the

time of the Prophet.

Two further functions of ùrf in Islamic law may be briefly discussed. One has

already been noted, the appeal to custom in interpreting the utterances of private

parties, conventional custom. The simplest case is where the utterance is that of

a single individual, someone making a vow or a will. More complex issues arise

when more than one person is involved, that is, in typical contracts. Nonetheless

the notion that the parties are binding themselves and the law is merely giving

effect to their intentions is difficult to counter. The question is what legal

constraints impinge upon these private acts, and this is clearly a question for

substantive law not legal theory. So too the important further step of implying

terms from common practice into such private acts can be defended as giving

effect to the intention of the parties.

Finally also part of substantive law, not legal theory, is the role to be assigned to

ùrf in the rules of evidence. Here we have the familiar problem of determiningwhich party bears the burden of proof on a given point of dispute. The principle

is that the claimant is that the defendant is the party whose allegation is



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supported by presumption (asl ) or custom (ùrf ). For it is the other party that is

making a positive allegation, unsupported until evidence is adduced. The

classical example is the determination of the claimant in a dispute between a

married couple over title to their household effects. Where the article is

customarily of the sort used by women, the wife is made the defendant on the

basis of this ùrf .

Several matters are worth mentioning that serve as further examples of the

rather undeveloped state of the doctrine of custom in Islamic law. One is the

apparently failure of the jurists to delve into the question of how the existence

custom is to be proved, whether for purposes of interpretation or determining the

burden of proof through custom. In this connection it is noteworthy that custom

is not in the usual lists of issues in which witnesses, who ordinarily must testify

on the basis of direct perception, are permitted to rely on hearsay (samā` ).

Islamic law is not particularly concerned with the source of a given ùrf nor, like

other systems of law, does it in general concern itself with whether the ùrf is

conceived of as binding by those who engage in it. Two examples illustrating the

former proposition may be of interest. One is from a fatwā of al-Ghazzālī (d.

505/1111) concerning a Jew who hires out his labor to a Muslim. The question is

what is the law with respect to the Jew not working on the Sabbath if this matter

has not been expressly dealt with. Al-Ghazzālī took the view that if the

consistent ùrf of the Jews is to rest on the Sabbath, then the Jew is exempt from

having to work on that day. Here a matter of Jewish law is treated simply as a



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question of ùrf . Another fatwā from the contemporary Yūsuf al-Qaraḍāwī

confirms this indifference to the source of the ùrf . The question is how the

Islamic law governing currency exchanges (ṣarf) , which requires that the

currencies be exchanged on the spot, is to be applied to contemporary

international currency exchanges, in which spot transactions may require forty-

eight hours for the exchange to be recorded in the ledgers of the banks and even

up to ninety-six hours when a long weekend intervenes. Al-Qaraḍāwī takes the

position that an Islamic bank may enter into such transactions without violating

the law of ṣarf. The actual time that may elapse without the transaction ceasing

to be on the spot is left to ùrf , and if the inquirer correctly represents the

prevailingùrf in international currency exchanges, Islamic law has no objection.

For good measure al-Qaraḍāwī appeals also to ḍarūra to reach the same

result. Here again the question is simply whether an ùrf exists or not, without

reference to its sources, although in this instance the appeal to ḍarūra does cast

a shadow on the matter.

In keeping with the law’s indifference to the source of the custom, it ordinarily

does not inquire into how the custom is conceived by those who engage in it. An

important exception comes from the discussions of bidà (blamable innovation).

Here it emerges that conduct otherwise laudable, the practice of prayer at a

specified time or place for example, may become a bidà if its practitioner acts

with reference to a purported sunna of the Prophet, when in fact there is no

credible evidence for such a Prophetic practice. Where, however, a person

engages in the same external conduct from spontaneous personal piety that has

led to a habit but without reference to the purported sunna, there is no bidà.

I have tried to suggest in this paper the range of issues raised by even a cursory

survey of the function of custom in Islamic law, particularly issues of legal theory



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and justification. I have no doubt that far more can be done, even within the

rudimentary framework that I have outlined. At some yet unidentified point in

Islamic legal history theorizing on custom by Muslim jurists reached a point from

which there does not appear to have been further substantial movement. The

well known treatise of Ibn `Ābidīn, far from marking a turning point in this

development, does not, as far as I can see, measurably advance it in the least,

and Ibn `Ābidīn’s indifference to the niceties of legal theory is to be deplored. For

it is difficult to see how the discussion can be further developed without extensive

rethinking of old, largely theoretical categories, including those already arising in

the extant legal literature on custom.

I would also like to take this opportunity to warn against the assumption

sometimes made that recourse to custom in Islamic law is inherently

progressive. In some instances one can readily discern that recourse to

custom may rather be a conservative feature of the system. This is the case, for

example, when the scope of revealed texts are narrowed by prevailing customs

as a matter of interpretation alone without evidence of Prophetic sanction. The

question whether custom is to be seen as conservative or progressive in other

cases is not subject to any simple answer. But the frequent coupling of `urf and

ḍarūra suggests that some elements of customary practice are far from ideal

from an Islamic point of view. Al-Qaraḍāwī’s fatwā validating the `urf of

international currency exchanges because it also appeals to ḍarūra suggests that

the delays in time characteristic of this particular ̀urf would be unlikely to find

their way into a global Islamic banking system.

undertheorization of custom

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