Is Islamic Law a Customary Law?
By Isah Abdulwaheed
Before the advent of colonial rule in Nigeria, justice was administered through Islamic law and customary law. Islamic law was predominantly applied in the northern part of the country, while the southern regions administered justice based on their various customs and traditions. However, with colonization, the colonial masters introduced their legal system, commonly referred to as received English law. As a result, Islamic law and customary law were merged and subjected to certain validity tests. This marked the beginning of the notion that Islamic law is part of customary law.
Section 2 of the High Court Law provides that the term “Native Law and Custom” includes Islamic law. This definition was also adopted in the Native Courts Law of the Northern Region and is now found in the High Court Laws of some northern states.
The critical question that arises is whether Islamic law can fairly be equated with customary law, given the definition and characteristics of customary law.
To answer this question, it is essential to understand what customary law entails and its defining characteristics. Therefore, in addressing whether Islamic law qualifies as customary law, this work will examine the definition of customary law, its characteristics, relevant judicial and statutory authorities, and the opinions of legal scholars.
Meaning of Customary Law
To appreciate the meaning of Customary Law, it is essential to differentiate between a custom and customary law. A custom is a rule of conduct. When such rule of conduct attains a binding or obligatory character it metamorphosis into a customary law.
Niki Tobi JCA made a clear distinction between custom and customary law in the case of Ojisua v Aiyebelehin(2001)11 NWLR, according to the erudite justice of the court of appeal:
“The word “custom” may only reflect the common usage and practice of the people in a particular matter without necessarily carrying with it the force of law. In other words, a custom may exist without the element of coercion or sanction”
From the above pronouncement by the learned justice, a breach of custom does not occasion any penality to the infringer, because it is not backed by sanction, but a breach of customary law attracts the imposition of the appropriate traditional sanction.
For instance, it is a custom of the Igbos of Nigeria that a father obtains a wife for the first son.
Every father ordinarily would like to do that, but no father suffers any legal injury or sanction for failure to get a wife for his first son. Likewise, no son may successfully compel his father under such custom to get a wife for him. This is because it is a mere custom, the breach of which does not attract any sanction.
However, a breach of a rule of customary law, e.g., adultery, attracts the full weight of customary sanctions.
Therefore, customary law refers to those customs generally accepted by a particular community as binding, the breach of which is supported by customary sanction.
In Kharie Zaidan v Fatima Khalil Moshsin(1973)ALL NLR the supreme court defined customary law as “any system of law not being the common law and not being a law enacted by a competent legislature in Nigeria but which is enforceable and binding within nigeria as between the parties subject to its sway”
The supreme court gave a more comprehensive definition of customary law in the case of Bilewu Oyewumi v Amos Owoade Ogineda(1990) NWLR:
” Customary Law is the organic or living law of the indegenous people of Nigeria, regulating their lives and transactions. It is organic in that it is not static, is regulating in that it control the lives and transactions of the community subject to it”
Satutorily, a customary law is defined by the provision of section 258 of Evidence Act as “A rule which is in a particular district from long usage obtained the force of law”
Section 2 of the Ebonyi State Customary Court Law CAP. 47 Laws of Ebonyi State, 2009 , defines customary law as:
“a rule or body of customary rules regulating rights and imposing correlative duties being customary rules which obtain and are fortified by established usage and which are appropriate and applicable to any particular cause, matter, dispute, issue or question”
Characteristics of Customary Law
From the above definitions of Customary Law, several features can be inferred. However, this work will focus on the two major characteristics of Customary Law which are it; flexibility and unwritten in Nature.
Customary Laws are mostly not documented. They’re usually unwritten. In the words of Justice Ibekwe (as he then was)opined that:
“our own customary law is unwritten. It was handed down the ages, from generation to generation. Like a creed, it seems to live in the minds of people. This explains why so little was really known at the beginning about the vast body of laws which had always governed the affairs of our ancestors from time immemorial”
Secondly, Customary Law remains flexible, evolutionary and capable of adaptation to changing circumstances.
In Lewis v Bankole, Osborne CJ opined that:
One of the most striking features of West African [N]ative custom … is its flexibility; it appears to have been always subject to motives of expediency, and it shows unquestionable adaptability to altered circumstances without entirely losing its individual characteristics.”
Several instances have illustrated the flexibility of customary law. For example, Land under the customary law was totally inalienable. It belonged to either a family or community. But due to the flexibility of customary law, the concept of inalienability of land under the customary law was discarded in a favour of trasferability by way of sale.
Web J in Balogun and Scottish Nigeria Mortgage and Trust Co. Ldt. V Saka Chief Oshodi stated:
“It seems to me that [N]ative law existent during the last fifty years has recognized alienation of family land, even by a domestic, provided the permission of the family is obtained … The chief characteristic of [N]ative law is its flexibility— one incident of land tenure after another disappears as the times change—but the most important incident of tenure which has crept in and become firmly established as a rule of [N]ative law is alienation of land.”
From the above definitions and characteristics of Customary Law, it is crystal clear that Islamic law does not fit into the descriptions and definitions of Customary Law and as such it is a big mistake to categorize Islamic law as part of customary law.
Islamic law, unlike the customary law, is largely written, more rigid and uniform and based on the Islamic faith. As oppose to customary law which is man made law, derived from the customs and traditions of the people, Islamic law is divine law from Allah (SWT).
Furthermore, customary law has been described as flexible and unwritten in Nature but Islamic law has been, is being and will continue to be a written law. This is because the primary sources of Islamic law which are the Quran and Hadith of the prophet have been reduced in written for more than 1400 years. In fact, Islamic law is older than English law which came to merge Islamic law as part of customary law. English Law was introduced in Nigeria, beginning with Lagos in 1863 and extending to the rest of the country in 1900, Islamic law has been in existence for more than 1400 years.
Muslim jurists who later developed Islamic law have documented hundreds of thousands of books on several subject matters,making Islamic law a profoundly rich law. Undoubtedly, Islamic law predates common law, which only became fully developed after the enactment of the Judicature Acts of 1873-1875. Prominent Muslim jurists such as Imam Abu Hanifa (author of Al-Fiqh al-Akbar), Imam Malik ibn Anas (author of Al-Muwatta), Imam Al-Shafi’i (author of Kitab al-Umm), and Imam Ahmad ibn Hanbal (author of Musnad Ahmad ibn Hanbal) contributed immensely to Islamic jurisprudence centuries before the development of the common law tradition. Their works laid the foundation for the comprehensive legal systems of Islamic law that continue to influence legal thought today.
Some judicial authorities, satutory provisions, jurists and legal writers have admitted the fact that Islamic law is not part of the customary law.
Several decisions of the courts have unequivocally admitted that Islamic law is not part of customary law.
In the case of Usmanu V. Umaru(1992)7 NWLR, the court held that:
“descriptions and definition of customary law which means the rule of conduct as established by custom and usage is incapable of including Muslim law, since in the decision of Lewis v Bankole, customary law has been stated to be unwritten recognized as law by members of an ethnic group and it is a mirror of accepted usage, on the other hand, it is a notorious fact that Muslim law is written in the Holy Quran and the numerous books of Hadith”
Similarly, in Alkamawa v. Alhaji Hassan Bello and Another (1998) 6 SCNJ 127) Bashir Wali JSC pronounced that:
“The Islamic law is not the same as customary law as it does not belong to any particular tribe. It is a complete system of universal law, more certain and permanent and more universal than the English common law.”
Statutorily, some sections of our statues have either expressly or impliedly distinguished Islamic law from customary law.
For example, the Plateau State Customary Court of Appeal Law defines “customary law” as:
the rule of conduct which governs legal relationships as established by custom and usage and not forming part of the common law of England nor formally enacted by the Plateau State House of Assembly but includes any declaration or modification of customary law but does not include Islamic personal law”
Similarly, a rational thinker, upon examining Section 277(2) of the 1999 Constitution, which enumerates questions of Islamic personal law that a Sharia Court of Appeal could entertain on appeal, can deduce that the drafters of the Constitution did not consider Islamic law as part of customary law. The drafters were also able to enumerate questions of Islamic personal law that a Sharia Court of Appeal could adjudicate on appeal due to the certainty and uniformity inherent in Islamic law.
In contrast, Section 280 of the 1999 Constitution, which provides for the establishment of a Customary Court of Appeal, does not enumerate the matters it can entertain. The apparent reason for this omission is the uncertainty and dynamic nature of customary law, which continues to evolve over time.
Considering the views of the scholars and legal writers, A.E.W Park in his book ‘sources of Nigeria Legal System at page 65 posited that:
‘though for practical purposes, Islamic law and various tribal laws are treated alike, there are many theoretical distinctions between them’
Justice Karibi Whyte JSC (as he then was) in his book ‘The History and sources of Nigeria Criminal Law 1993 observated that:
“it is important to point out for our purposes that this equation of Muhammadan law with Customary law is demonstrably wrong and clearly misleading. It is submitted that the two systems of law are not indistinguishably similar and the fact that the Maliki school of sharia has taken local custom into consideration and consequently modified some aspect of strict Islamic law is not sufficient justification for the assertion. Admittedly, Native and custom has been statutorily defined to include Moslem law, there distinguishing features nevertheless remain”
According to Oba Abdulraheem “the colonial power classified Islamic law as a customary law. It is an arbitrary statutory classification that has no real basis in fact or law”
Conclusion:
It is clear from the aforementioned analysis that Islamic law differs from customary law in essential ways. Within the Islamic faith, Islamic law is divine, codified, and universally applicable, but customary law develops from the customs and practices of certain communities and is distinguished by its flexibility and unwritten nature. There was no solid legal or factual foundation for the colonial imposition of the attempt to categorise Islamic law as customary law. Scholarly opinions, judicial pronouncements, and statutory provisions have all unequivocally highlighted how distinct and autonomous Islamic law is. Customary law is much less comprehensive and structured than this system of law, which predates English common law and is based on the Quran, Hadith, and the writings of jurists. Therefore, equating Islamic law with customary law undermines its universal and divine origin.
References:
- 1999 Nigeria Constitution
2.Kolajo, A. A. (2001). Customary Law in Nigeria through the Cases. Ibadan: Spectrum Books Ltd.
3.Obilade, A. O. (1979). The Nigerian Legal System. Ibadan: Spectrum Books Ltd.
4.https://loyalnigerianlawyer.com/it-is-wrong-to-consider-islamic-law-as-customary-law-both-constitutionally-and-jurisprudentially/(ACCESSED ON 1 December 2024)
ABOUT THE AUTHOR:
Isah Abdulwaheed is an undergraduate student of 300l Faculty of Law, Bayero University Kano. He is an enthusiastic researcher and legal writer. He admits that his article is not foolproof and therefore, he takes full responsibility for the gaps or omission you may observe.
He can also be reached via: isahabdulwaheed534@gmail.com and 08166270263 for correction.
Photocredit: freepik.com
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