Customary Law in Hallaq's *A History of Islamic Legal Theories* — Epoche C2
Introduction: the book, its date, and the claim under test Wael Hallaq's A History of Islamic Legal Theories: An Introduction to Sunnī uṣūl al-fiqh was published by Cambridge University Press in 1997, and it is a history of a single genre: uṣūl al-fiqh , the discipline that theorises the sources of the law and the procedures by which rulings are derived from them. A correction is due at the outset, because an earlier version of this essay dated the book to 2001. The 1997 date is right; 2001 is the date of a different Hallaq monograph, Authority, Continuity, and Change in Islamic Law , and the two books do different work. The conflation is not trivial for the present argument, since — as will emerge — the question this essay asks is answered largely by the 2001 book and hardly at all by the 1997 one. The question is where customary practice acquires normative force in Sunni law. The Arabic terms are ʿurf , the settled usage of a community, and ʿāda , habitual practice, used almost interchangeably in the juristic literature. Neither appears in the canonical list of the sources from which the law is derived, which comprises the Qurʾān, the Sunna of the Prophet, ijmāʿ or the consensus of the qualified scholars of a generation, and qiyās , analogical extension from a textual case to an untexted one on the basis of a shared operative cause. Yet Islamic law is manifestly full of rulings that vary with locality and period. The thesis defended here is that this apparent contradiction dissolves once one sees that custom does not enter as a source of obligation at all, but as a determinant of what obligations already established are about — and that this is a mechanism precise enough to be traced, not a vague appeal to flexibility. Two things the earlier version of this essay got wrong Before that argument can be built, two claims in the earlier text have to be withdrawn, because both are load-bearing and neither survives inspection. The first is the framing. The earlier version opened by reporting a common academic interpretation on which Hallaq restricts the normative authority of the sharīʿa to the rationalist methodologies of the early schools, and of Abū Ḥanīfa (d. 767) in particular. No scholar holds this. It is not a reading of Hallaq that anyone has advanced, and setting it up as the position to be overturned makes the essay a refutation of nothing. There is a real controversy in which Hallaq is a principal, and it is worth substituting the genuine article. Joseph Schacht's An Introduction to Islamic Law (1964) codified for a generation of Western scholars the view that by roughly the beginning of the tenth century the qualified jurists had come to a tacit agreement that no one thereafter possessed the competence for independent legal reasoning: the gate of ijtihād had closed, and what followed was taqlīd , the transmission of received doctrine. On this picture Islamic law after the formative period is a fixed corpus, and the gap between its doctrine and the practice of Muslim societies is filled by extra-legal custom and ruler's edict — law and life running on separate tracks. Hallaq's article 'Was the Gate of Ijtihad Closed?' (1984) argued that the closure never happened: the sources record continuous discussion of the qualifications for ijtihād , jurists claiming the rank and being credited with it in every century, and no consensus to the contrary. That is the dispute this essay is actually intervening in, and the position it defends is Hallaq's. The second withdrawal concerns evidence. The earlier version reported that Hallaq describes ʿurf as a 'secondary indicator' or a 'material cause' of legal rulings, with both phrases in quotation marks. Neither phrase can be located in A History of Islamic Legal Theories , and quotation marks around a formulation one cannot find are worse than no citation, because they invite a reader to check something that is not there. They are withdrawn. What can be said about the book, and what should have been said, is stated in the next section. Why a book on uṣūl al-fiqh has little to say about custom, and why that is not a defect The honest finding is that A History of Islamic Legal Theories is the wrong place to look for a doctrine of customary law, and the reason is a matter of genre rather than of Hallaq's judgement. Uṣūl al-fiqh is a second-order discipline. It asks how the indicants of the divine law yield rulings: how the imperative form in a Qurʾānic verse is to be construed, when a general term has been particularised, what conditions a transmitted report must satisfy to be probative, what makes an analogy sound. It does not ask what a sale is in Damascus. That belongs to furūʿ , the substantive law, and to the ancillary genres that grew up around it — the collections of legal maxims, and the shurūṭ literature of model contract formularies drafted for notaries. A history of the theory of the sources will therefore mention custom in passing, as Hallaq does, and will not thematise it. Faulting the book for this is like faulting a treatise on rules of evidence for saying little about the price of grain. So the essay's original thesis — that Hallaq acknowledges the legitimacy of customary law and channels it through ijtihād — has to be relocated to survive. It survives in the 2001 book, which is precisely a study of how the doctrine of a school of law changes while presenting itself as continuous, and in the substantive and maxim literature, which is where the jurists themselves put the question. The remainder of this essay reconstructs the route on that basis. Istiḥsān and istiṣlāḥ: what they license, and what they do not The earlier version identified two juristic procedures as the openings through which custom enters: istiḥsān , juristic preference, associated with the Hanafis, and istiṣlāḥ , the consideration of unattested benefit, associated with the Malikis. The identification is half right, and the half that is wrong is instructive. Istiḥsān