Introduction to Usul Fiqh :Uruf as a source of law

Slides from Dr Mohd. Afandi Bin Awang Hamat, IIUM,UIAM

1. Urf as a source of
Islamic Law

2. Custom
Is
authoritative

3. 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.

4. Definition
Literally:
To know
Technically:
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.

5. Technical Definition
Various 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.

6. 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.

7. 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).

8. 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.

9. 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.

10. 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.

11. 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 Prophets Sunnah.
‟

12. 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.

13. 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’.

14. CLASSIFICATION OF ‘URF
The Verbal (Qawli) and
Practical (Amali) Urf.
The General (Amm) and
Particular (Khass) Urf.
The Valid (Sahih) and
Invalid (Fasid)„Urf.

15. Verbal ‘Urf
Consists 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-dua or request. However it has been
‟
used in the Quran to describe the
obligatory prayers of Muslims, and this
second usage eventually become
predominant.

16. 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.

17. General Urf
Common 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.

18. Particular Urf
Urf 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.

19. Valid Urf
Urf which does not contradict the Shari’ah
or deny the interest of people and at the
same time does not bring corruption.
Invalid Urf
Against the principle of Shariah 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 Shariah,
‟
therefore, such transactions are invalid
and must be avoided.

20. 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.

21. 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.

22. EVIDENCES
QURAN
“Keep to forgiveness,enjoin urf and turn
away from the ignorant”(al-Araf:199)
‟
Many mufassirun suggested that the
meaning of urf in this verse is synonymous
to maruf which means anything that is
‟
good.Therefore, the custom of people shall
be considered in making legal judgment.

23. 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.

24. Evidence
( " .

25. Evidence
HADITH
Reported 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”.

26. 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.Masud:“what the
‟
Muslims deem to be good. Is good in the
sight of Allah”.

27. 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.

28. ROLES OF ‘URUF
Referring 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.

29. 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.

30. RELATED MAXIMS
It 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)

31. A 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.

32. 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.

33. A 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.

34. RELATED MAXIMS
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.

35. 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

36. 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.

37. 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.
The End