JEAIL > Volume 3(1); 2010 > Notes & Comments
Research Paper
Published online: May 30, 2010
DOI: http://dx.doi.org/10.14330/jeail.2010.3.1.06

Considering Custom in the Making of Siyar (Islamic International Law)

Md (Muhammad) Anowar Zahid & Rohimi B. Shapiee
Universiti Kebangssan Malaysia
Faculty of Law, National University of Malaysia, UKM Bangi 43600, Selangor, Darul Ehsan, Malaysia.
Corresponding Author: dr.anowar.zahid@gmail.com; rohimi_s@hotmail.com

ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract

Custom is a source of Islamic law in general and Siyar (Islamic international law) in particular. Islamic jurists have set out the elements and conditions of customs for general jurisprudential purpose. However, no one has, to the authors' knowledge, formulated them from Siyar perspective. This paper is an attempt to fill this gap by tracing two important elements of an international custom, namely frequent and dominant general practice of States, and acceptance of that practice as law. These two will constitute a valid custom provided they fulfill certain conditions, most importantly that the custom must not conflict with Shari'ah or the spirit of Shari'ah.

Keywords : Custom, Islamic jurisprudence, Siyar, International Custom, opinio juris

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