Custom in Islamic Law and Legal Theory

The Development of the Concepts of `Urf and `Adah in the Islamic Legal Tradition

By: Ayman Shabana

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Hardcover | 15 November 2010 | Edition Number 1

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262 Pages

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21.59 x 13.97 x 1.6

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This book explores the relationship between custom and Islamic law and seeks to uncover the role of custom in the construction of legal rulings. On a deeper level, however, it deals with the perennial problem of change and continuity in the Islamic legal tradition (or any tradition for that matter). It is argued that custom (urf and adah) was one of the important tools that the jurists used to accommodate change and to adjust the rulings of shari`ah to the ever changing conditions in particular social and historical contexts. The book presents a diachronic study of the development of the concept of custom (and the different terms that have been associated with it) in the Islamic legal tradition.

Industry Reviews

"Shabana's work is an immensely important contribution to the study of the Islamic legal tradition. It provides a sound basis for more explorative examinations of custom as a source of Shar ah, particularly its potential to contribute to the progressive reform of Shar ah." - Waheeda Amien, University of Cape Town

"This book will be very useful to students and specialists in Islamic law who need to understand the historical development of the custom, its relationships with other significant legal theological concepts and institutions, and its status in different genres such as the qawa'id and maqasid. This focus makes technical discussion in technical terms inevitable. However, the book's general and comprehensive outlook should also interest non-specialists. In addition, it should pave the way for new and more specific studies on 'urf. Finally, the role of the 'urf and 'ada in the evolution of Islamic law in the modern period, is also highly important, and we need more studies in this field by serious and competent scholars like Shabana." - Ismail Cebeci, Oxford Centre for Islamic Studies, Journal of Islamic Studies

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Non-Fiction Law International Law Public International Law Treaties & Other Sources of International Law Customary Law Miscellaneous Items Religion & Beliefs Islam Jurisprudence & General Issues Systems of Law Islamic Law

Jurisprudence & Philosophy of Law

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Published: 19th January 2011

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Series Editor's Preface	p. xi
Acknowledgments	p. xiii
Note on Transliteration and Translation of Arabic Words	p. xv
Introduction	p. 1
Custom in the Islamic Legal Tradition: Past and Present	p. 1
Custom and Religion	p. 2
Custom and the Problem of Definition	p. 4
The Purpose of the Study	p. 5
The Thesis	p. 10
The Scope of the Study	p. 11
The Method	p. 12
Custom and the Major Debates in the Field of Islamic Studies
Custom and Islamic Law in Modern Scholarship	p. 17
The Beginnings and the Emergence of a Dominant Paradigm	p. 18
Ethnographic Studies	p. 19
Literary Textual Studies	p. 23
Qadi Justice and Max Weber's Influence	p. 28
Reactions to the Dominant Paradigm	p. 30
Revisions and Paradigm Shifts	p. 31
Studies Devoted to 'Urf	p. 32
Normative Juristic Approach	p. 38
Concluding Remarks	p. 42
Beginning and Early History
Normative Foundations of the Concept of Custom in the Islamic Legal Tradition	p. 45
The Definition of 'Urf	p. 49
Textual Foundations of 'Urf in the Qur'an	p. 50
'Urf in the Sunnah of the Prophet	p. 52
From 'adah to 'Urf: Theological Foundations of the Concept of Custom as reflected in the Debate over Causality	p. 59
The Mu'tazili and the Ash'ari Schools on Causality	p. 60
Al-Ghazali and Ibn Rushd between Occasionalism and Determinism	p. 64
Al-Juwayni and the Link between the Theological 'adah and the Juristic 'adah?	p. 68
Custom between the Theoretical School and the Applied School	p. 71
The Beginnings and the Origins	p. 71
The Works of Jurisprudence (Usul): The Early Structure of the Sources	p. 73
The Theoretical Approach (Tariqat al-Mutakallimin)	p. 76
Conventional Signification (al-dalalah al-'urfiyyah)	p. 77
Particularization of the General (Takhsis al-'amm)	p. 78
'Urf and the Verification of Reports (Tawatur and Ijma)'	p. 79
'Urf, Ijtihad, Istifta'	p. 84
Al-Juwayni's Theory of 'Urf and the Discourse on Political Contingencies	p. 85
The Applied Approach (Tariqat al-Fuqaha')	p. 87
The Debate on Juristic Preference (Istihsan)	p. 89
Development and Expansion
The Expansion of Legal Theory	p. 95
Custom in Mainstream Legal Theory and Emerging Legal Genres	p. 95
Custom within the Four Sources: 'Urf and Qiyas	p. 96
Beyond the Four Sources: 'Urf and Istidlal	p. 100
The Scope of the Sources: 'Urf and Takhsis	p. 105
Conclusion	p. 110
Custom and Legal Maxims: al-Qawa'id al-Fiqhiyyah	p. 111
The Development of the Genre	p. 111
'Urf and the Criteria for the Evaluation of Benefits	p. 114
Types of Indicators	p. 115
Scattered Implications of 'Urf in Substantive Law	p. 116
Customary Permission and Customary Condition	p. 117
Jurisprudential Maxims and Substantive Maxims	p. 119
Legal Maxims and the Deep Structure	p. 121
The Five Cardinal Maxims	p. 123
Custom and the Objectives of Shari'ah: Maqasid al-Shari'ah	p. 125
Maqasid in Legal Theory	p. 126
Custom in al-Shatibi's Theory of Objectives	p. 128
The Objectives of Shari'ah	p. 130
The Ultimate Objective: Achieving People's Benefits	p. 130
The Subsidiary Objectives	p. 135
Classifications of Customs	p. 138
Custom as a Category	p. 139
Custom as a Measure	p. 141
Custom, Legal Application, and the Construction of Reality	p. 147
Custom and Ijtihad	p. 149
Custom and Legal Application between Fatwa and Hukm	p. 149
Custom and Judges' Verdicts	p. 153
Custom, Jurisconsults' Opinions, and Legal Change	p. 160
Conclusion	p. 167
Notes	p. 173
Bibliography	p. 227
Index	p. 241
Table of Contents provided by Ingram. All Rights Reserved.

Custom in Islamic Law and Legal Theory

The Development of the Concepts of `Urf and `Adah in the Islamic Legal Tradition

At a Glance

Hardcover

Industry Reviews

Shipping

How to return your order

Defective items

You Can Find This Book In

Other Editions and Formats

Paperback

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