Evidence of considering custom in Islamic legislation and criminal legal systems on land and at sea


  • Hussein Ali Dikman Shamran Al-Saadi
  • Adel Sarikhani


Custom, Legal Systems, Legislation, Criminal Law, Islamic Sharia


Custom, or tradition, refers to the incorporation of individuals in a society into a specific rule and their continuous adherence to it, as well as their sense of obligation to respect it in their lives. It is a concept that denotes the traditions, values, and behaviors passed down through generations in specific communities. It forms an essential part of a society's culture and collective identity, as it defines acceptable and appropriate behavior and guides the actions and developments of community members In the maritime legal system, custom does not necessarily mean long-established practices; rather, it is associated with concepts and has an influence on the decisions and actions of the society. It may be applied openly or implicitly. Understanding custom in this system helps us comprehend the challenges facing the community. On the other hand, in the common law system (such as Rome), custom refers to the actions of individuals that have become a method not contrary to an individual's will and can potentially generate law or understanding of legal provisions through societal interaction. Custom plays a significant role in legislation and legal systems. It helps address legal gaps and contributes to how they are changed and individually applied. It guides legislation and influences the legislative process. Custom, traditions, and social values can influence the laws formulated by considering the presence of custom within legal frameworks. Different legal systems give varying priority to custom and legislation, and the extent of custom's influence varies. In Eastern legal systems like English law (common law), custom can be an important source of legislation, and it still has an impact on modern English law. In Roman law, which is considered a significant source for determining rules and legal provisions due to the prevalence of traditions and customs in Rome, and in French law (written law), custom can be applied in limited cases.Custom is the primary source of law in the Latin-Roman French legal system. Its importance is increasing in the Anglo-Saxon legal system. Eastern legal systems like Iraqi and Egyptian law adhere to the principle of "No crime or punishment except as provided by law," giving custom a crucial role in legal branches. Custom plays a vital role in determining and applying legal rules and principles. For instance, admiralty law highlights the role of custom in shaping and determining the practices and regulations governing maritime affairs. In criminal law, custom helps define crimes, guide punishments, and understand intent and circumstances.