Impact Of Custom On The Rules Of The Mejelle

Abstract

This study examines the theoretical and practical dimensions of the rules related to customary law (ʿurf) in the Mecelle-i Ahkâm-ı Adliyye, which served as a codified summary of Islamic jurisprudence during the Ottoman Empire’s modernization period. The Mecelle incorporates not only classical Islamic legal principles but also acknowledges established customs and traditions (ʿurf and ʿāda) as legitimate sources of law. Particularly, Article 39—“Custom is an arbitrator”—is one of the foundational legal maxims that reflects the normative authority granted to custom within the legal framework. In this context, the study analyzes the legal status of custom in Islamic jurisprudence, its conditions for validity, its limitations, and its interaction with textual sources (nass). In addition, other provisions in the Mecelle that rely on customary practices are categorized and examined in detail. The study further questions whether custom in this codification is merely an auxiliary source or a primary legal proof (dalīl) in its own right. By doing so, the article aims to reveal the extent to which custom attained normative legal value in the Mecelle, and how it was integrated into the Ottoman legal system. Ultimately, this research highlights the flexible and adaptive nature of Islamic law in response to evolving social structures.