Islamic Law as Customary Law: A Brief Analysis of the Two Systems of Law
Islamic Law as Customary Law: A Brief Analysis of the Two Systems of Law
By
Jimoh Mokanreola Bamigbola, SAU (Part V Student of Department of Common Law, Faculty of Law, University of Ilorin and the Attorney General of Students’ Union Unilorin (2015/2016).
Introduction
There are various arguments as to whether or not Islamic Law is customary law. One may say that the fact that called for these arguments is that some indigenous societies have adopted Islamic law as their legal system and their way of life. However in my view, to determine whether A is B, one must look deep into the characters of A and B. This shall be done in this paper in respect of Islamic Law and Customary Law.
What Is Customary Law?
Customary law has received various definitions from different scholars, jurists and many authors. But for the purpose of this paper, the definitions given by the apex court shall be explored. In the case of Kharie Zaidan V. Fatimah Khalil Mohseen (1973) All NLR 740
“…a system of law, not being the common law(of England), and not being law enacted by a competent legislature in Nigeria, but which enforceable and binding within Nigeria as between the parties subject to its sway”
This means that customary law does not include the rules of common law as obtained in England and not that of the law-making bodies in Nigeria but evolving from custom of the people of Nigeria seen as binding and enforceable among the people. From this definition given by the apex court, one wonders why the British colonials have to impose the test of validity on our customary law despite the fact that it does not include their laws.
Also in Oyewunmi Ajagungbade III V. Ogunsesan (1990) NWLR (Pt.137)182, the Supreme Court, per Obaseki JSC defined customary law as:
“ the organic law or living law of indigenous people of Nigeria regulating their lives and transactions. It is organic in that it is not static. It is regulatory in that it controls the lives and transaction of the community subject to it. It is said that custom is a mirror of the culture of the people. I would say that customary law goes further and import justice to the lives of all those subject to it.
For centuries it has regulated virtually all kinds of relationships and, notwithstanding the abrasive influence of the received law and local legislation, it still serves the needs of the ordinary citizens especially in the areas of personal law. Its earlier application in the field of criminal law has been abolished by S. 36 (12) of the 1999 Constitution of Federal Republic of Nigeria.
CHARACTERISTICS OF CUSTOMARY LAW
1. It must have been in existence from time immemorial. A customary law, must be in existence at the relevant time, it is alleged, claimed or sought to be relied on as a binding custom. Where a custom does not exist at a given material time, then it is dead and cannot have force of law as a customary law. In Lewis V. Bankole (1908) 1 N .L. R. 81, Speed Ag. CJ said that before native law and custom can be enforceable it must be an existing native law and custom, and not that of by gone days.
2. It is flexible. Customary law is flexible. It is dynamic and changes with the times, it changes with the society that observes it. In Balogun V. Oshodi (1929) 10 NLR 50 it was held that native law and custom are living things and may change.
3. It must enjoy general application among the people. In Ugo V. Obiekwe (1989) NWLR (Pt.99) 566 it was held that a custom must enjoy general application among the people as a binding custom. The given community must therefore not only regard the practice as a custom but it must also enjoy universal application among its members. For instance, the payment of bride price is a custom that enjoys general application among the people of Nigeria.
4. It must be accepted as a binding custom. For a custom to be valid the community must accept it as custom. Bairamian FJ, in Owoniyi V. Omotosho (1961) 1 All NLR 304, said that a custom is a mirror of accepted usage.
5. Customary law is largely unwritten. Customary law is largely unwritten because it is not compiled, codified and not legislated in the form of statute law. In Alfa V. Arepo (1963) WNLR 95, it was held that the unwritten nature of customary law is due to the fact that custom has been established from the ancient days.
THE VALIDITY TEST FOR CUSTOMARY LAW
The validity test of customary law was introduced by the British government during colonization. This means that from time immemorial before the advent of colonialism, there was nothing like subjecting the rules of customary law to any validity test.
The introduction of validity test in Nigeria started with the enacted of the Supreme Court Ordinance of 1900. The ordinance under S.14 provides that the Supreme Court can only enforce customary laws that are not repugnant to natural justice, equity and good conscience.
This same provision, but reference to Lagos state High Court and the inclusion of incompatibility test, is also contained in S.27(1) of the Lagos State High Court Law. Additionally S.18 (3) of Evidence Act 2011 provides that a custom shall not be enforced if it is contrary to public policy and not in accordance with natural justice, equity and good conscience.
On the whole, the validity test of the customary law in Nigeria can be summarized as follow:
i. Repugnancy test
This test states to the effect that for a customary law to be enforced as valid by any court of law, it must not be repugnant to natural justice, equity and good conscience. Any custom discovered to unjust, unfair and unconscionable will be rejected and invalidated by a court of law as was held in Edet V. Essien (1932) 1 NLR 47.
ii. Incompatibility test
This test is to the effect that any customary law that is inconsistent with any written law in force or any law in existence will not be enforced or will be invalidated. In Rotibi V. Savage (1944) 17 NLR 77 it was held that the phrase “any law” under S.16 of the Protectorate Court Ordinance 1933 means the local enactment and does not include English law.
iii. Public policy test
According to Prof. Adaramola in his book Jurisprudence, he believes that public policy should mean “general social goals and societal morality or the objectives which one reasonably or unreasonably believes the society ought to pursue. Where the custom or native laws of a particular society is not in line with what is obtainable in the public at large, such customary law will be said to be void as was held in Alake V. Pratt (1955) 15 WACA 20
Applicability test
Most of the books on customary law has made an express mention of this test. Prof Adaramola opined that the purport of this criteria that a customary law must not only be admissible in law but also be relevant to the present case. This means that it must be established that the customary law applies to the case at hand and its existence must be proved. S. 16 (1)–(12), S.70 and S.73 of Evidence Act 2011 provides for the modes of proving the existence of customary law.
What is Islamic Law?
Islamic law is one of the great legal systems in the modern world, regulating the life of those subject to it, precisely the Muslims. The phrase “Islamic law” is used interchangeably with the phrase sharia’ah law. The word shari’ah literally means ‘the way to the watering place’. Islam is usually described as a way of life. Islamic law is a complete, self sufficient and self regulating legal system. The application of Islamic law is limited to northern Nigeria only. The Islamic law applicable in northern Nigeria is that of the Maliki School. The Maliki School has been the dominant school in the north since around the thirteenth century. Although the constitution does not refer to any school, the Sharia Court of Appeal laws of the states in northern Nigeria give legal endorsement to the Maliki School. Courts have held that where there are divergent opinions within the school, the majority (mashur) opinion is applicable. However, this does not preclude English courts from enforcing any other school of Islamic law that is binding between non-Nigerian parties.
Fiqh, the science of Islamic is divided into two, usul (the roots of foundation of legal science), and furu, (the branches of legal science). Usul focuses on the methodology of law, its sources, and scope while furu is the study of substantive branches of law
Characteristics of Islamic law
1. It is a divine law. Islamic law is the law that shapes the community.
2. Islamic law does not change with time. It is not dynamic because it is given by the divine being and His pronouncements cannot be change in order to accommodate rising circumstances.
3. Islamic law is rigid.
4. Islamic law is a written law. Most principles of Islamic law are found in the Holy Quran and hadith. These sources of Islamic law are typically written.
Difference between Islamic Law and Customary Law
The difference between Islamic law and customary law can be best known by juxtaposing between their features.
I. In Owonyin V. Omotosho(Supra), it was held that customary law is a mirror of accepted usage. This means that the validity of a customary law depends on its acceptance by the community. On the other hand the validity of Islamic law does not depend on its acceptance by the community.
II. The origin of customary law is the community while the origin of Islamic law is divine.
III. customary law changes with the society while Islamic law does not change with the society.
IV. A particular customary law is indigenous to the people of Africa while Islamic law is not an indigenous phenomenon in Africa talk less of Nigeria.
V. Customary law is an unwritten law while Islamic law is written.
Conclusion
It is evidence from the above explanation of customary law and Islamic that the two systems of law are different from each other and are in no way related. The classification of Islamic law as customary law is like the mixture of water and fire. Such classification is like the problematic amalgamation of various tribes that form Nigeria today. In Alkamawa v. Bello (1998) 8 NWLR (Pt.561)173, it was held that Islamic Law is not Customary Law but a separate and distinct legal system. It is my humble submission that Islamic law is not customary law.
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