Customary Law: Its Essence, Authority, and Impact on Tribal Reconciliation: A Foundational and Applied Study

Abstract

Abstract:

This research aims to clarify the essence and authority of customary law, its relationship to habit, the key criteria for invoking it as evidence, and the connection between tribal customs related to reconciliation and customary law as a foundational legal source. To achieve this, I have gathered a set of criteria for the use of custom as evidence or for engaging in reconciliation. Additionally, the research seeks to highlight the primary risks and harms resulting from the application of corrupt tribal reconciliation practices.

I have concluded that adherence to corrupt tribal customs concerning reconciliation leads to the forfeiture of certain benefits or the occurrence of specific harms. Islamic law was established to promote welfare and prevent harm. Among the harms associated with corrupt tribal customs is the failure to safeguard people’s faith, such as when some tribes resort to corrupt customary laws, document them, and elevate them to the status of tribal doctrines, even though they contradict Islamic law. All of this constitutes submission to falsehood. Another example is aiding a murderer or an aggressor who harms others, regardless of their repentance, and compelling the entire tribe to bear the consequences of their crimes and liabilities, which harms people's faith, wealth, and lives.

Furthermore, I concluded that tribal customs are subject to change with the times and regions, and it is erroneous to impose the outdated customs of ancestors on contemporary societies. I also recommend that researchers focus on collecting and studying tribal customs across various fields of jurisprudence, such as customs related to marriage, and examining them in light of the principles of customary law, to help distinguish between valid and invalid practices.

I also propose that relevant authorities establish guidelines for tribal leaders and elders to safeguard people's "religion, wealth, and lives" by reviewing tribal reconciliation practices before they are approved. This review should be conducted by legal committees in Islamic courts to annul practices that contravene Islamic law and uphold those in alignment with it.