The Role of Custom in Canon, Jewish, and Islamic Law: Supplemented, Superseded, or Supplanted by Written Law?
16 Pages Posted: 1 Jul 2009 Last revised: 24 Oct 2011
Date Written: June 13, 2009
Abstract
Custom can be a compelling source of law and supplements, even supersedes, written, codified law in religious traditions. In this essay, I address the relationship between custom and written, codified law in three religious legal traditions: the Roman Catholic Canon Law tradition, Jewish law, and Islamic law.
In the Roman Catholic Canon Law tradition, customary law reflects the values critical to community life and while it cannot contravene divine law, customary law, if reasonable, can become law even if customs contradict written canonical norms. In Jewish law, custom (minhag) is a source of rabbinic law and can even supersede halakhah (rabbinic, codified law). While customary law supplements and can even supersede written law in the Roman Catholic Canon Law and Jewish legal traditions, in the Islamic legal tradition custom (urf) generally supplements mandatory rules and cannot contravene divine law or abrogate from the Qur’an.
Firm, written codified rules and the development and vitality of customary law both paradoxically complement but yet sometimes separate the other in the Roman Catholic Canon Law, Jewish, and Islamic legal traditions. While the relationship between written law and custom remains paradoxical, it reflects an ongoing relationship and tension between the divine instruction of law in each tradition and the arguably fallible limits of humanity’s ability to reason and apply written law as well as to apply customary rules to supplement, or even supersede, binding laws.
Suggested Citation: Suggested Citation