A Comparative Analysis of Modern Customary International Law and Islamic Urf (custom)

Abstract

Custom, as a critical expression of people's value, plays an important role in the history and growth of nations and in their social and legal systems. It is thus an important source of law in various civilizations. It is an important source of law under international law and Islamic law.  And, as a source of law under the two systems, its importance reflects the decentralized nature of the international system and the potential dynamism in the Islamic law.  Under international law, it is a primary source and a secondary source under Islamic law.  In response to challenges under both legal systems, it is capable of modification.  However, under Islamic law such modification has to conform to the fundamental Grundnorm. This fundamental law is a priori transcendental and immutable.  The grundnorm of the modern international law on the other hand, is secular in nature and capable of change at any point in time.  This article is driven by a notion that modern international law can hold the allegiance of the world at large only by establishing its claim to continuing acceptance as a synthesis of the legal thought of widely varying traditions and cultures including Islamic law.  It is therefore an attempt to answer hypothesis: to what extent is there a possibility of communality and convergence of value in the concept of custom under the two legal systems? An attempt will be made to examine some points in this regard by an interpretive methodology within relevant theoretical framework.

Keywords: Custom, Usage, Opinio Juris, Treaties, Jus Cogens, 'Urf, 'Adah, 'Ijma, and, Siyar