Urf as a source of Islamic Law

CustomIs

authoritative

Custom plays an important role in the development of Islamic law.

One of the feature of Islamic law is that some of its ruling can change according to the changes of circumstances, i.e.place, time,custom and the behavior of people.

This is why it is possible for this law to be practiced at any time and place.

However, there are some laws, which were fixed and cannot be changed. These are held to be immutable and suitable to be implemented at all times.

DefinitionLiterally:To knowTechnically:Recurring practices which are

acceptable to the people of sound nature.

Some practices which are practiced by some people or a society and they become accustomed to doing it.

Technical DefinitionVarious definitions of urf have been given by

Muslim jurists. According to: Khallaf: What is established and practiced by

people from their sayings and doings,or not doing.

Badran: What is established and common in a group of people (jumhur) from their sayings and doings, and is consistently repeated until it influences them and is therefore accepted by their reason. He further noted that not all that is established and common can be considered as„ urf, but it is that which is established and common to the people with wise reason and sound behaviour.

Zarqa’:The behaviour of a group of people in their sayings or doings.

These definitions indicate that in order for urf to be valid (as a hukm) it must be consistent with the practice of a group of people. Accordingly the practice of an individual is not considered as an urf, but a personal habit (adah fardiyyah).

Uruf= adah:known recurring practices (words/action) acceptable by people of sound nature/mind.

Custom plays an important role in the growth of Islamic law. Although, it is not recognized as a major source of the law, but it can be relied upon in matters where the Shara‟ did not give the exact details.

„Adah/custom have the authority and therefore may;

specify a general matter (takhsisal-‟amm)or;

restrict an unrestricted matter (taqyidal-mutlaq).

Example:If a contract does not specify whether the

delivery of the goods is the responsibility of the purchaser or retailer, the prevailing custom(normal practice) should be depended upon to specify and clarify the matter which is not stated in the contract.

Therefore, if there arises any dispute among the people in a particular transaction, the normal practice in that particular transaction should be the arbitrator to resolve the dispute.

However,if the custom contradicts a stipulated agreement between the parties involved, it(custom)is nullified.

The agreement should prevail & not the practice because the statement or condition which is agreed on in the contract has greater authority over the customary practice of the people.

THE INFLUENCE OF CUSTOM IN ISLAMIC JURISPRUDENCE

Before Islam, the traditions and customs were the basis of the Arab’s life, including their religion, morality trade and transactions.

With the rise of Islam, some customs were abolished, and some of them remained.

Urf or adat is considered as having impact

in the formation of Islamic law.

1.A number of texts, particularly of the traditions were based upon custom and usages.

Example:the principle of blood money or diyah-is based upon customs.

2.The part of the sunnah based upon the tacit approval of the Prophet comprises many of the Arab customs .

Example: the Prophet was silent in a number of commendable customs based upon the Prophet‟s Sunnah.

3.The customary of citizen of Madinah was regarded as a sufficient concensus of opinion.

Example:Maliki school of thought accepted practice of Madinah people in the absence of an explicit text.

According to Imam Malik the customary conduct of the citizens of medinah(amal ahli madinah)is accepted as source of law in the absence of an explicit text.

The conducts of the citizens of medinah was in most cases based uponc ustoms and usages which had prevailed in that city.

When the Arabs in their conquest were introduced to customs unknown to them which were not inconflict with any nass of shariah, such customs accepted in the shariah by means of consensus of jurists.

Example:Istihsan(JuristicPreference) like

the contract of istisna’.

CLASSIFICATION OF ‘URF

The Verbal (Qawli) and Practical (Amali) Urf.

The General (Amm) and Particular (Khass) Urf.

The Valid (Sahih) and Invalid (Fasid)„Urf.

Verbal ‘UrfConsists of the general agreement of the

people on the usage and meaning of words for purposes other than their literal meaning.

Example:The word solah–literally means al-du‟a or request. However it has been used in the Quran to describe the obligatory prayers of Muslims, and this second usage eventually become predominant.

Practical Urf

Consists of commonly recurrent practices of the people in daily life

Example: Taking vacations on certain days (like travelers of Arab, or Europe in a particular time in the year). and easy transactions like bay al-ta’aati (buying or selling something that cheap. The price as such Rm2 or Rm3, like buying fried banana- goreng pisang and etc), which is accepted and valid as a form buying and selling something.

General UrfCommon custom which is prevalent every

where among all people regardless of time.

Example:Taking public bath, in relation to payment made and the amount of water consumed. This kind of contract is valid, which is a necessity and is commonly practiced and accepted every where.

Or the word nazar is known generally for something compulsory) to do by a Muslim, when we promised something to Allah, because it is not an ordinary promise.

Particular UrfUrf which is prevalent in a particular

locality, profession or trade.

This type of „urf is accepted by the people in a particular place and not in all places.

Example: Muslim in Malaysians enter homes leaving shoes out side their homes, but Jordanians are not.

Valid UrfUrf which does not contradict the Shari’ah or

deny the interest of people and at the same time does not bring corruption.

Invalid UrfAgainst the principle of Shari‟ah or it denies

the interest of people or it brings corruptions.Example:The practice of usury or riba in

transactions. Although it is common among many people, it is against Shari‟ah, therefore, such transactions are invalid and must be avoided.

CONDITIONS OF VALID ‘URF

1.Reasonable and acceptable to the people with wise reason and sound behavior.

2.Common and frequent recurrence-it must

be practiced by people commonly and frequently regardless of location.

3.The custom must be in existence at the time of the transaction,not an extinct (passed) customary practice or a later (not yet occur) custom.

Example:the price of an item accords to the present currency known by both parties even if it not mentioned in the contract.

4.Does not contradict the text(whether nass Quran or sunah, agreed contract)

Example:the practice of riba in transaction-although it is widely practiced, it has no legal validity.

Example:a person cannot breach an agreed contract, as stipulated in the contract.

EVIDENCESQURAN“Keep to forgiveness,enjoin urf and turn

away from the ignorant”(al-A‟raf:199)Many mufassirun suggested that the

meaning of urf in this verse is synonymous to ma‟ruf which means anything that is good.Therefore, the custom of people shall be considered in making legal judgment.

Al-Quran also has considered some of the urf of the early Arab community as a legal basis in its law. For instance, the principle of diyat,which was practiced in the early community,has been approved by the Quran.

Evidence

( مرفوع عن (حديث هشام حدثني : قال ، عن أبي ،رسول : عائشة يا قالت ، عتبة بنت هند أن ،

وليس ! ، شحيح رجل سفيان أبا إن اللهمنه أخذت ما إال ، وولدي يكفيني ما يعطينيوولدك : " يكفيك ما خذي قال ، يعلم ال وهو

. " بالمعروف

Evidence HADITHReported by Aishahr.a:“Hind,the daughter

of Utbah,wife of Abu Sufyan, came to Allah Messenger and said Abu Sufyan is a miserly person. He does not give adequate maintenance for me and my children, but if I take from his wealth(some part of it),with out his knowledge. Is there any sin for me?”there upon,Prophet (SAW) said,“take from his property what is customary which may suffice you and your children”.

Some commentators of Sunnah (muhaddithun) suggested that this hadith indicates the important role of custom and it should be relied upon in matters where Shara’ did not provide exact details.

Saying of Abdullah b.Mas‟ud:“what the Muslims deem to be good. Is good in the sight of Allah”.

The proof that can be deducted from this quotation is that custom,if not against Islamic teachings, is normally considered as good practice to the Muslims and acceptable by people and reason.

Therefore, such practice is accepted by Allah. So, it can be regarded as a source of law in Islam.

ROLES OF ‘URUFReferring to the above sources,earlier and more recent scholars of Islamic

law have agreed that custom is an important source of Islamic law.

They have not objected to the role of custom in solving the problem that arise in Islamic law.

Imam Malik bin Anas for instance has considered the practice of Madinah people (amalahlal-Madinah) as a source of Islamic law.

Similarly,Al-Syafie has made many ijtihads on issues that arose when he was in Iraq, but when he moved to Egypt he changed some of his earlier opinions because of the different circumstances and customs in Egypt (old and new opinion of Shafie).

This is obvious in the past and present literature of fiqh in which custom has been utilized by the jurists to solve many issues of fiqh.

RELATED MAXIMS

األزمان بتغير األحكام تغير ينكر الIt can not be denied that with a change of

times the requirements of the law.

Example:It is permitted in our time to shut the door of the mosque,when it is not

prayer time to avoid theft.

Offer and acceptance in electronic based contract (ATM,internet banking and etc)

شرطا كالمشروط عرفا المعروفA thing known by common usage is like a

stipulation, which has been made.Meaning:The custom must be accepted by people or

society Example: In manufacture of cloth, as a

custom, customer will give cloth and size of body to tailor.

Subsequently, a tailor will make clothes to customer without giving any remaining items back to the costumer.

بينهم كالمشروط التجار بين المعروف A thing known amongst merchants is as

though fixed by a stipulation between them (Art44)

Example:If a merchant sold a commodity to a

purchaser without agreement as to the time or a manner of payment and it was customary for merchant to obtain the price by weekly installment then the contract of sale should be interpreted according to particular customs.

بالنص كالتعيين بالعرف التعيينA matter established by custom is like a

matter established by a legal text

Example:A contract of sale using local currencies.

Therefore, any dispute over currency payment, must be referred to the type of currency used in that place of transaction,

unless it is stipulated otherwise.

RELATED MAXIMSغلبت أو اضطردت إذا العادة تعتبر انما

Effect is only given to custom where it is regular occurrence or when universally prevalent.

Meaning:Custom is regular happen as well as not

against by shariah. Activity that have been determined in the Quran or hadith can’t be called customs like solat,hajj,fasting and etc.

Customs is easy to accept in the society and recurring practices by people.

Example: Read Yaseen on Friday night Reciting Doa after the solat

Reminder: Some Muslims consider these kind of activities as Bid’ah. For some Muslims,

these are among the good customs, as the bid’ah itself according to them is divided into Bid’ah Hasanah and Bid’ah Dalalah

The practice of people of certain places to divide dowry in marriage contract into two types.

The first is the dowry paid when the contract is concluded, and second is the dowry paid at a later period of time.

The custom that involves transactions is the sale of offering and accepting or bayal-ta’ati, which is normally concluded without the utterance of offer and acceptance.

The customary images of certain words among certain group of people such as the usage of the word “doctor”.

In universities normally this title refers to a person who holds a Ph.D degree, but among a common people, this word normally refers to a medical practitioner.

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