Idea’s Hub: Prof Jonathan AC Brown on “How Much Does Islamic Law Change When Customs Change?”

How Much Does Islamic Law Change When Customs Change?

By Prof Jonathan Brown

Not long ago one of my students approached me asking my opinion on a small text that had been circulating on social media, particularly amongst advocates of Progressive Islam. The snippet of text was fascinating, since it touched on a major question of Islamic law and legal reform, namely the competing authority of the original proof texts (nass, plural nusus) of Quran and Hadiths (sayings of the Prophet Muhammad) on one hand, and the authority of changing custom (‘urf) and convention (‘ada, the two terms are often used interchangeably) on the other. I offer this short analysis not to discuss the merits of Progressive Islam but only to assess the provenance of the text and explore both what its author intended and how Muslim jurists have received it.

The snippet claimed to be a quote of Qadi Abu Yusuf (d. 798), one of the three founding scholars of the Hanafi school of Islamic law. Here I will paste a screen grab of the snippet from the Facebook post of a very vocal advocate of Progressive Islam, since this scholar translated the section well:

This text appears in a commentary by the Ottoman judge and legal scholar Ali Haydar (d. 1935) on the nineteenth-century Ottoman civil law code known as the Majalla (Turkish, Mecelle), promulgated by the Ottoman sultan between 1870-1875. The text appears as part of Haydar’s discussion of one of the five main maxims of Islamic law, ‘Convention is a probative source of law (al-‘ada muhakkima).’ This means that local customs are determinative on matters left undetermined by scripture or the strong stances of schools of law (ex. how much dowry should a groom pay his bride? What constitutes reasonable care for an item left for someone to guard? How do we interpret the clauses of a contract, and what sorts of conditions are acceptable to set in a contract?). As the Majalle, Ali Haydar and indeed countless previous Muslim scholars all stress, this maxim does not mean that custom can justify disobeying or abandoning a proof text (nass) from the Quran or the Hadiths. Because Muslims believe that these texts come from the infallible sources of God and the Prophet, they cannot be based on falsehood. Custom, meanwhile, is a human product and therefore enjoys no such guarantee. As affirmed by generations of scholars from the Hanafi school of law, the school of Abu Yusuf, the Majalle, Ali Haydar and the Ottoman state overall, “the strong cannot be left in order to act according to the weak.” But how then should we understand Ali Haydar’s provocative quote from Abu Yusuf. It seems to contradict this very assertion.

On its face, the Abu Yusuf quote seems incredibly consequential. Abu Yusuf was not a minor figure. He was the senior disciple of Imam Abu Hanifa, is seen as one of the founders of the Hanafi school of law and was the first chief judge of the Abbasid caliphate. In this quote, he seems to be saying that, in the case of ruling derived from the Quran or the Hadith of the Prophet, if that Quranic verse or Hadith was based in the customs of Arabia at the time, then that ruling needs to be adjusted based on the characteristic of custom and convention today. We can easily imagine some examples: Arabia was a patriarchy in which men dominated public life and the distribution of resources; the Quran states that a son should receive twice the share of inheritance that his sister receives; since the Quran’s inheritance ruling is based on a patriarchal culture, and modern Western culture today advocates gender equality, then the customary basis of the Quranic ruling needs to be abandoned and the ruling altered to meet the custom of our time. Similarly, the Prophet instructs Asma’, daughter of Abu Bakr, that a mature woman should cover her whole body except her hands and her face around unrelated men; since the Prophet’s ruling is rooted in the notion of appropriate dress in his particular time and place, it must be altered to fit its appropriate basis in our time and place, namely our modern notions of modest dress.

Indeed, the more I thought about it, the more Abu Yusuf’s quote seemed to offer an eighth-century mandate for the approach advocated by the late Islamic modernist Fazlur Rahman (d. 1988), whose theory of the ‘double movement’ had Muslims today looking at the details of a Quranic injunction, identifying the moral rule behind it, then figuring out how to apply that moral rule in our own, modern context. In effect, one should look at the spirit, not the letter, of law because the letter was fixed in a distant time and place.

This interpretation of Abu Yusuf’s alleged statement, however, raises one major problem: it is difficult to determine where it would not apply. Almost every ruling in the Quran and the Prophet’s precedent is based in some way in the culture of the Prophet’s environment. The opposite of custom and convention would seem to be something originating totally with God and with no clear worldly connection, like the details and mechanics of Muslim worship (‘ibadat). But these are also quite often bound up in culture and convention. Fasting, notions of ritual purity and the idea of certain foods being impure were all deeply ingrained in the Near East and Arabia of the seventh century. But they are totally foreign to twenty-first century Western Europeans and Americans, whose Christianity was founded on a rejection of Jewish dietary laws (“It is not what goes into the mouth that defiles a person,” says Jesus in Matthew 15:11) and who have no notion of ritual purity being essential for prayer. Should we conclude that the Quranic rulings on ritual purity and prohibiting pork are based in the custom of the Prophet’s culture, and therefore that the rulings based in those proof texts should be abandoned in favor of reliance on our own custom?

There is an even bigger problem with Abu Yusuf’s quote, namely that he did not actually say it. I have searched all the databases I know of, but I have not been able to find this exact quotation from Abu Yusuf anywhere but Ali Haydar’s commentary. Abu Yusuf did say something similar, but his actual statement is much less clear and categorical than what appears to be no more than Ali Haydar’s creative paraphrasing. In the discussion of whether certain commodities can be traded by weight or by volume, which is intimately connected to the potential taboo of Riba (interest bearing transactions), Abu Yusuf said, “what is considered in all [such] things is custom, in contrast with what is specified by proof text.”[i]

In order to understand Abu Yusuf’s statement here one must look at both the specific question he was addressing and the larger issue of the authority of revealed texts versus custom. First, the larger issue. The question of how much authority was really vested in the temporal and cultural surroundings of the Prophet has always been salient in Islamic thought. On the one hand, Muslim scholars always recognized that many aspects of how the Prophet and his companions lived were totally incidental and had no binding normative claim on other Muslims. Thus we find it stated in early Sunni theological texts that ‘There is no problem with praying in trousers.’[ii] This seems like an inane tenet to find in a summary theological text, but it was extremely important. It drew a line delimiting the normative power of Arab custom on non-Arab Muslims. Arab clothing was not part of Islam. The Arabs did not wear or know of trousers during the time of the Prophet, but the Muslims discovered them soon after the Prophet’s death when the Muslim armies conquered the lands of the trousers-wearing Persians.

On the other hand, the Quran was phrased in the language and idiom of the Hejaz in the seventh century, so it was impossible to read the text without taking that context into consideration. Moreover, sometimes the Prophet forbade something because of its meaning in his society. This then raised the question: If the social significance of such a thing changes, does the ruling on it change too? To a great extent, this depended on how explicit the reason behind a ruling was. The Prophet condemned Muslims letting their robes extend down below their ankles. But he also showed why he did this in his rebuking those who drag their clothing in the dust to show how wealthy they are (since they have spare clothing).[iii] The Prophet forbade Muslim men from wearing gold and silk (though he exempted cloth that was a silk blend or that only had a stripe of silk on it), presumably but not explicitly because this was a sign of conspicuous consumption.[iv] In the case of wearing long clothing the Prophet made the cause for his ruling clear, and he exempted people whose clothing kept going below their ankles because of how their body was shaped or because of how they walked. Because modern Western trousers generally extend below the ankles but in doing so do not indicate any display of wealth, most Muslim scholars today see no problem with adopting this custom of dress. Because the Prophet did not qualify his prohibition on silk with a clear cause, however, Muslim scholars have upheld the prohibition on silk even in times and places where wearing silk is not seen as a clear sign of wealth (most ties available in stores today in the West are made of silk, for example). Because of the link to display, however, custom has managed to create adjustments around the edges of this ruling. Muslim scholars have generally allowed men to use silk in their clothing for such purposes as insulation if such uses become customary. Silk ties are often justified under the license for the silk stripe allowed by the Prophet.

Specifically, it is in the context of what the Prophet’s affirmation does to local custom that Abu Yusuf’s quote must be understood. The Quran and the Prophet forbade usury. In fact, until the late nineteenth century, Muslim scholars were in agreement that this prohibition included all interest-bearing transactions, not just ones with exploitative interest rates. The details of this prohibition come from Hadiths prohibiting two things. First, two parties exchanging like commodities could only do so in the same amount. Party A could not trade 1 pound of dates to Party B for 2 pounds of dates. Second, one could generally not delay payment (the Prophet made exceptions for this, however, which are the basis for much of Islamic finance). What relation do these two practices have to interest or usury? It seems that, in pre-Islamic Arabia, a poor person desperate for food would offer almost anything to feed his family. He might offer a seller 10 pounds of dates, paid whenever he could get them, for just 1 pound of dates right away. In this way, the poor would become horribly indebted to the rich. In the Prophet’s commands that commodities only be traded in like amounts, he specified what form of measurement should be used. In one Hadith he explains “gold for gold, silver for silver, by weight. Wheat and barely, mady by mady (a mady being a certain dry volume measure).”[v]

The question arose amongst Hanafi jurists: What if people started trading gold or silver by volume instead of by weight, or if they started trading grain by weight instead of by volume? The fear in this was that Party A, desperate for money right then and there to buy some necessity, might accept 10 coins made of only 10% gold in exchange for paying the ‘lender’ 10 coins made of 90% gold later on. Since the volume of the coins was the same (coins of the same size being, in effect, a measure of volume, not weight), this could become a means of allowing exploitative usury. This is where Abu Yusuf’s quote fits. Abu Yusuf was stating that, in such a situation, one should adjust the legal ruling to meet the change in custom. The Prophet had been trying to forbid interest-bearing transactions. Because gold was exchanged by weight according to the custom of his time, his prohibition used that language. If the custom changes, so must the units of measurement so that interest does not suddenly become allowed.

Almost all Hanafi scholars vehemently disagreed with Abu Yusuf’s statement, but this was not because they wanted to leave open some backdoor to usury. Rather, it was because they considered it impermissible to indulge a change in the weight/volume conventions to begin with. Muslims could not just switch from measuring gold by weight to volume and say this was custom. The Hanafi jurist Sarakhsi (d. circa 1096) explains that the Prophet’s affirmation (taqrir) of these means of measuring had the effect of making that custom into a revealed command (nass). The Prophet was, in effect, commanding Muslims to measure certain commodities by weight and others by volume. This custom had become prophetically codified and was no longer subject to change.[vi] Critiquing Abu Yusuf’s comment became standard in Hanafi books of law, and the Ottoman scholar Birgili (d. 1573) reminds his readers that Abu Yusuf’s opinion was ‘weak’ and could be taken in the face of the weight of opposing opinions.[vii] One scholar who actually embraced Abu Yusuf’s position was the influential Damascus jurist Ibn Abidin (d. 1836), who wrote an entire treatise on custom in law because of the confusion surrounding Abu Yusuf’s statement. Ibn Abidin appreciated that, since coins had for many centuries been the means by which precious metals were counted or measured in exchange, Abu Yusuf’s principle actually “closed off a great door for usury.” Although the main purpose of states minting coins and stamping them with their imprimatur was to assure people using them that their weight and purity was standardized, in theory Abu Yusuf’s rule would provide a solution in case such standards broke down.[viii]

Conclusion

At first, Abu Yusuf’s quote seems like a clear mandate for changing the rulings of Islamic law, even if those rulings come from scriptural sources, if the rulings in those scriptural sources were determined by local custom at the time of the Prophet. Since Islamic modernists like Fazlur Rahman understand the Quranic revelation and the Prophet’s teachings to be almost entirely bound up in that custom, this would mean that a revered classical Muslim scholar was advocating a revolutionary reform in Islamic law. Upon examination, however, the quote attributed to Abu Yusuf was a murky modern paraphrase. His original statement dealt specifically with conventions of measurement and the specific rules prohibiting usury. Even in that specific context, traditional Muslim scholars criticized Abu Yusuf for his position, and those who embraced his stance did so because it would provide a backup if Muslim had engaged in an impermissible indulgence in favoring local custom over Shariah injunction.

Jonathan AC Brown is the Alwaleed bin Talal Chair of Islamic Civilization in the School of Foreign Service at Georgetown University, and he is the Director of the Alwaleed bin Talal Center for Muslim Christian Understanding. He received his BA in History from Georgetown University in 2000 and his doctorate in Near Eastern Languages and Civilizations from the University of Chicago in 2006. Dr. Brown has studied and conducted research in Egypt, Syria, Turkey, Morocco, Saudi Arabia, Yemen, South Africa, India, Indonesia and Iran. His book publications include The Canonization of al-Bukhari and Muslim: The Formation and Function of the Sunni Hadith Canon (Brill, 2007), Hadith: Muhammad’s Legacy in the Medieval and Modern World (Oneworld, 2009), Muhammad: A Very Short Introduction (Oxford University Press, 2011) and Misquoting Muhammad: The Challenges and Choices of Interpreting the Prophet’s Legacy (Oneworld, 2014), which was named one of the top books on religion for 2014 by the Independent. He has published articles in the fields of Hadith, Islamic law, Salafism, Sufism, Arabic lexical theory and Pre-Islamic poetry and is the editor in chief of the Oxford Encyclopedia of Islam and Law. Dr. Brown’s current research interests include Islamic legal reform and a translation of Sahih al-Bukhari with commentary.

References:

[i] al-muʿtabar fī jamīʿ al-ashyā’ al-ʿurf ʿalā khilāf al-manṣūṣ ʿalayhi: al-Sarakhsī, al-Mabsuṭ (Beirut: Dār al-Maʿrifa, 1978), 12:142.

[ii] Al-Barbahārī, Sharḥ al-sunna (Beirut: Dār al-Ṣumayʿī, 2000), 72.

[iii] Ṣaḥīḥ al-Bukhārī: kitāb al-libās, bāb mā asfal min al-kaʿbayn fa-huwa fī al-nār, bāb man jarra thawbahu min al-khuyalā’.

[iv] Sunan of Abū Dāwūd: kitāb al-libās, bāb fī al-ḥarīr li’l-nisā’; bāb al-rukhṣa fī al-ʿalam wa khayṭ al-ḥarīr.

[v] Sunan al-Nasā’ī: kitāb al-buyūʿ, bāb bayʿ al-shaʿīr bi’l- shaʿīr.

[vi] Al-Sarakhsī, ibid.

[vii] These included the opinions of Abū Ḥanīfa and al-Shaybānī; Muḥammad b. ʿAlī Birkilī, al-Ṭarīqa al-Muḥammadiyya (Istanbul: Āsetāne, [n.d.]), 213.

[viii] Ibn ʿĀbidīn, “Nashr al-ʿurf fī banā’ baʿḍ al-aḥkām ʿalā al-ʿurf,” in Majmūʿat Rasā’il Ibn ʿĀbidīn (Damascus: [Muḥammad Ḥāshim al-Kutubī], [1907], 2:118.