Custom As a Source of Law In Islam

Introducation

If some preactice has been commonly adopted and has remained unvaried for a long period, then such practice assumes the force of law. And such practice is called custom. According to Muslim scholars, custom is not a regular source of law but some how or other it affected the Islamic Law. It is also know as “Urf” or “taamul” or “adapt”. Custom makes a midway between primary and secondary source of law and is an important source of Muslim Law.

Meaning of Custom

(i)  Literal Meaning

Literaliy it means, Urf, Taamul, Adat

(ii) Legal Meaning

Custom means a practice that by its common adoption and long unvarying habit has come to have the force of law.

Definition

Custom means those principles of right and truth, which have been admitted by the society for a long period and which have been followed willingly without any force.

Importance of Custom

According to SIR ABDUR RAHIM, “The groundwork of Muhammadan Legal System, like that of the other systems is to be found in custom and usages of the people among” whom it grew and developed.

Custom as a source of Law

All the four Sunni Schools include custom as a Source of Law. Case Law: Mad.Ismau Vs ShesMukh

Held:  “Custom has the same authority as that of Ijma and analogy in the absence of an express text.”

Conditions for a Valid Custom

Following are the conditions for the valid custom;

(i) It must be Immemorial;

(ii) It must be Reasonable;

(iii) It must be continuous;

(iv) It must be territorial;

(v) It must be Certain;

(vi) It must be General or Universal;

(vii) It should not oppose Islamic Sharia;

Pre-Islamic Customs

Introducation

In pre-Islamic period, darkness and ignorance prevailed over the entire Arabic region. The Arabic society was based on those customs and usages, which were, in fact, mirror of darkness and ignorance. In Arab Society the constitutional was tribal in nature. The Chief of certain tribe was all in all in his personality m, and was sovereign for his tribe. Every type (kind) of disputes were settled by him. There was a saw of “Might is right” and “Tit for tat”. The Arabs were so ignorant that they used to follow such customs and usages, which deteriorated their society. Following are the customs which were absolutely wrong and hateful.

(i) Divorce

At first, in Arab society tere was customs after having divorce, every woman was free to marry again with any person of here own will and was no restricted by iddat etc.

(ii) Marriage 

At first, there was a tradition that one man could marry with many women’s at one time and also marry with some women temporarily. There was not any law prevailing ofr marriage. So when a person is getting marrying he gets a lot of dower  from the parents of the Girl. That is why the people killed their daughter immediately after her birth.

(iii) Law of Justice

At first in the Arab society, there was a Law of Jungle not the law of human beings. Every person who have superior cast and creed and rich used to look down upon the people belonging to inferior casts.

(iii) Dower

At first, there was a tradition of giving dower to their daughter when they were getting married. Due to passage of time, it was becomes a tradition to giving dower at the time of marriage of their daughters. And no one accepts other’s daughter or other’s wife without having a lot dower. It was not only a traditon but infact a restrictions, So this is the reason that parents killed their daughters after their birth.

(iv) Adoption

At first, in Arab there was a custom to adopt the children by the rich people. The Arab’s behavior with the adopted children was very good and they love them and take care of them like their own son. But, they only adopt male children not female.

(v) Rape 

Before Islam, rape was very common among the Arabs. Although tere were punishments kike stoning to death against commission of rape, yet such punishments were awarded only those adulteres, who there poor. 

(vi) Burying of Daughters Alive

Before Islam, the Arabs were so ignorant that they felt no shame to bury their daughters alive. The reason was that they did not consider their daughters as blessing of God, but they, in fact, considered their daughters as burden.

(vii) Prostitution

Prostitution was very common among the Arabs before Islam. Prositution was present in different forms. For example, a woman could have sexual relations with a number of men during her life.

(viii) Sale 

At first, in Arab Society, there was a barter system. People get food against camel or cloth or camels against food or cloth etc., they made blunders while weighting their goods.

(ix) Dower

At first, there was a tradition of giving dower to their daughter when they were getting married. Due to passage of time, it was becomes a tradition to giving dower at the time of marriage of their daughters. And no one accepts other’s daughter or other’s wife without having a lot dower. It was not only a traditon but infact a restrictions, So this is the reason that parents killed their daughters after their birth.

Conclusion

Hence for final analysis, we can say that, Custom is a course of action that characteristically is repeated in like circumstances. The status of pre-Islamic custom is so hideous that it becomes essential of Allah subhana-o-Tallah to sent his Last Prophet Muhammad (SAW) on Earth  and teach them what  Allah says , and show them the light and preach them how to live with peace. Prophet (SAW) , in his last khutba-e-hajatul wida said, “ O people! Verily you Allah is one sand you father is one. He created Adam with clay. There is no superiority for an Arab over a non-Arab or for white over the black or for the black or for the black over the whihte except tauheed. Verily, the noblest among you is he who is the most pious”.

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