On the Development of Custom as a Source of Law in Islamic Law:

Abstract

Abstract Although classical Islamic legal theory did not recognize custom as a source of law, Muslim jurists — in particular, the ḥanafīs — discussed the status of custom already in the pre-classical period. Custom was incorporated into Islamic law in a variety of ways: by including certain practices in the category of sunna or ijmāʾ; by appealing to judicial preference (istiḥsān) and to secondary sources of law, such as fatwās; and by using legal fictions (ḥiyal). Because these methods were not always adequate to deal with the questions that specific practices presented to the jurists, there was an increasing tendency among later ḥanafī jurists to recogize custom as a source of law.

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