Comparison between Sharia and Customary Laws

Both Islamic Sharia Law and Amazigh customary Law in Morocco, during the French colonial period, played an important role in organizing a set of moral and legal issues. These two sources were used widely in two different regions: The first region was called Bilad al-Makhzin, and its life affairs were governed by Islamic Sharia law .The second region was called Bilad al-Siba, which was the area of the Berber tribes that were outside the loyalty of the Makhzen authorities. The latter was governed by Customary Laws in organizing aspects of its life. This article discusses some of the differences between Sharia and Customary Laws in Morocco during the colonial era in particular: women s right to inheritance, moral issues, and the goals of the two laws.e
Islamic Sharia and Amazigh Customary Laws dealt with the issue of women inheritance differently as wea find that the Islamic law granted women half of a man’s right, because in Islamic culture a man had guardianship, and he must bear responsibilities, and provided all the requirements of the family. While the woman retained her right of inheritance without anyone acting on it. As for the Amazigh Customary Law, women were completely denied inheritance, despite the important roles they played within the family and society. The justification for not enabling them to inherit in Customary Law was that the family operated as an integrated productive cell and was dominated by a kind of male domination, Furthermore, the males of the family believed that the woman’s inheritance would be transferred to her husband’s family -;- therefore, the foreign husband would decrease the family’s property through intermarriage. Accordingly, the family prevented the loss of its ownership by preventing the woman from inheriting (Guennoun, 2011, p28). In this regard, we note that Islamic Sharia law took into account women s rights to inheritance, thus ensuring family stability for them compared to Customary Law.
As for the second and clear difference between these two laws, it lies in the organizational process for a group of moral issues, such as murder, theft and adultery... Where we find that the Islamic Sharia Law dealt with the crime of murder with a kind of strictness in judgment, as it sentenced the offender by murder ´-or-the so-called "retribution", while theft was also considered immoral behavior because it offended society. Hence the penalty for the offender was severe according the Sharia Law. Thereafter, the hand of the thief should be cut off as a verdict. Concerning the condemning the adulterer in Islam, it is flogging´-or-killing, according to the type of adultery committed. Considering that the crime of adultery took on other social dimensions since it offended the honor of women, the family and society. Although these provisions were harsh against the offender, they were considered just in the legal philosophy of Sharia (El-Othmani , 2004, p261). On the other hand, we find the Amazigh Customs Law differed in the nature judgements compared to the previous law, since it dealt with all the cases we referred to previously by issuing financial penalties in the form of varying fines according to the type of moral crime committed, including the crime of murder where the verdict was against the offender with a fine called ADDIA “blood money” (Aspenion, 2007, p 51.), In addition the offender could be exiled from his/her community for seven years.
As for the essence in the philosophy of Islamic Sharia law and the customary law of the Berber tribes, it did not differ in terms of purpose. If we contemplate well the spirit and philosophy of these laws, we find that they were similar to the point of congruence in terms of purpose. They sought together to protect the rights of the individual and the group, consolidate collective awareness of the system, and bear joint responsibility in society. Therefore-;- they ensured security within society, combated chaos by pushing corruption and bringing interests into the environment governed by these laws. Ultimately, Though the two laws emanated from different backgrounds, they targeted the security and stability of the individual and society in general.
From what is said above, It is clear that the Islamic sharia and the customary laws dealt differently with certain social issues. They provided answers to certain social and individual inquiries in one way´-or-another like the cases of women inheritance and moral issues .All in all, the Customary Law is considered as part of the Islamic jurisprudence that we need dig deeper in what sa common between the two laws and serves better citizens nowadays.

References
1- Guennoun, Said (2011), The Voice of the mounts Berber War Customs, Translation: Mohamad Ouakrime, Rabat, El Maarif Al Jadida Press.
2- Robert, Aspinion (1946), Contribution to the study of Moroccan Berber customary law (Study on the customs of the Zayan tribes), 2nd edition, Casablanca.
3- El-Othmani , M’hamed (2004), El -Alwah Jazoula and Islamic legislation, a study of the customs of the Sous tribes in the light of Islamic legislation, Publications of the Ministry of Awqaf and Islamic Affairs, Casablanca, Wedebrandt, Edition 1.

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