'URF

(CUSTOM)

DEFINITION

• Literally - something which is known• Juristic –

I. Recurring practices which are acceptable to people of sound nature.

II. The collective practice of a large number of people

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• Another term synonyms with ‘urf is ‘adah but they have to be distinguished:

• ‘Adah means repetition or recurrent practice of individuals or a group of individuals. ‘Adah refers to the habits of individuals.

• Most jurists consider ‘urf and ‘adah to mean the same.

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HUJJIYYAH

• The ‘ulama have generally accepted ‘urf as a valid criterion for purpose of interpreting al-Quran.–E.g. “Let those who possess pay by

their means.” -al-Talaq (65):7.• In this ayah, the Quran does not

specify the exact amount of maintenance of children, but it leaves the quantum to be determined by custom.

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–Amount of mahr–Amount of compensation or

mutaah–Period of menstruation/post natal–Sale and purchase agreement such

as what to include in buying a house or a car

–Payment of deposit

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• Based on legal maxims:• ‘Custom is the basis of judgement‘

– العادة محكمة

• It is based on the hadith:– ما رآہ المسلمون حسنا فهو عند الله حسن – ‘what the Muslims deem to be good is

good in the eyes of Allah’

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• ‘What is proven by ‘urf is like that which is proven by a shar’i proof”

• ‘What is determined by custom is tantamount to a contractual stipulation– المعروف عرفا كالمشروط شرطا

» When someone rents a car, he should use it according to what is customary and familiar, a condition that is presumed to apply even if not stated in the contract.

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• Based on the practices of the Prophet and the companions– The Prophet said to the wife of Abu

sufyan, “Take from the property of Abu Sufyan what is adequate for you and your child in a normal manner.”• The basis of the legal decision was

clearly custom.8

Significance of custom

• As a basis of reference for juristic views and ijtihad.–Example: Imam Syafi’e laid the

foundations of his school in Iraq but then when he went to Egypt, he changed some of his earlier views owing to the different customs in the Egyptian society

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Background of Custom

• Customs which were prevalent during the lifetime of the Prophet and were not expressly overruled by him become part of Sunnah taqririyyah.

• Islam has retained some of the Arab customary practices with some reforms such as the payment of blood money, bay as-salam, mortgage and kafa’ah in marriage, principle of ‘asabah in inheritance.

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• For the post-Islamic custom of the Arabian society, Imam Malik has gone far as to equate ‘amal ahl madinah with ijma’

• The practices constitutes a source of law in the absence of an explicit ruling in the Quran and Sunnah.

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Conditions of valid 'urf

• Must represent a common and recurrent phenomenon–The practice of a few individuals or limited number of people is not authoritative

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–Art. 14 of the Majallatul Ahkam al-’Adliyyah provides that:• ‘Effect is only given to custom

which is of regular occurrence’

• Custom must also be dominant i.e that it is observed in all or most of the cases to which it can apply.

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• Must be in existence at the time a transaction is concluded–Example in contracts and commercial transaction• Relevant to the interpretation of document

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• Must not contravene clear stipulation of an agreement– As-Suyuti “ The accepted custom is

similar to the stipulated agreement.”– The general rule is that the

contractual agreement prevail over custom and recourse to custom is only valid in the absence of an agreement.

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• Example: –Custom : payment of dower by stages

–Agreement in contract : whole • In this case, agreement in the contract prevails over the custom

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• Must not violate nass that is the definitive principles of the law– the opposition of custom to the nass

may either be absolute or partial.– In case of absolute opposition, the

custom must be set aside. – In case of partial, the custom is

allowed to act as a limiting factor on the text.

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• Example of absolute opposition:– Customary practice that

excluding women from inheritance

– Welcoming guest by serving intoxicating liquour

– The practice of usury18

• Examples of partial opposition:–Practice of bay al-salam. The Prophet in hadis prohibited the sale of non-existing objects but he permitted salam

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–The Prophet is said to have forbidden conditional sale, that is sale with conditions that may not be in agreement with the nature of the contract.

–The hadith quoted: “the Prophet forbade sale coupled with a condition.”

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• However, the majority of Hanafi and Maliki jurists have validated conditions which are accepted by the people at large and which represent standard custom.

• How about ‘jual janji’?21

• Jual janji is a customary security transaction whereby a land owner transfers his property to a creditor for a loan on condition that, if the loan is repaid within a stipulated time, the property will be retransferred to the vendor for the same price.

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• If the condition is not met, then the jual janji (conditional sale) arrangement is transformed into jual putus (outright sale).

• The loan is considered part of the price of the land, and in former years was normally not commensurate with the actual value of the property

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Types of custom

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Verbal (qauli)

Actual (fi’li)

Verbal (qauli)

• Consists of general agreement of the people on the usage and meaning of words deployed for purposes other than their literal meaning.

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• In other words, by popular usage a word is used to denote meaning that is different from its literal meaning.

• The customary meaning to the word become dominant over the literal meaning.

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Examples

• Solah• Zakah customary

meaning• Hajj

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• “Kepala mayat?”–Fixed share allocated to surviving spouse

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• The word ‘ulama’” –Literally means those who are

knowledgeable in religion – many

–Customarily refers to any person who are religious and knowledgeable in religion one or many

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• The word ‘air tuak’ –In some states in Malaysia it refers to a kind of drink from coconut but in some other parts of Malaysia it refers to intoxicated drink.

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• Lahm (اللحم) = in the Quran it refers also to fish but customarily it refers to meat other than fish.

• Daabah (الدابة) – in Quran it refers to all creatures including human being. Customarily it refers to four legged animals.

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• Thus if some said “Wallahi I will not eat meat (lahm)” then one day he ate fish – he will not be liable for kaffarah because the word lahm does not include fish.

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• Customary meaning prevails over literal meaning in cases of contracts, oaths and commercial transactions– ‘A’ takes an oath that he will never

set foot in so and so’s house.– Customary meaning = entering

the house33

–If he just set his foot in the house without entering it then he will not be liable for kaffarah.

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– A husband says to his wife “ wallahi! I will never ‘touch’ you again” • What if he later had physical

contact with her such as touching her hand?

• Will he be liable to pay kaffarah?• What ‘touch’ means literally and

customarily?35

Actual (fi'li)

• Consists of commonly recurrent practices which are accepted by the people.–Eg: give and take sale (bay’ al-

ta’ati) – concluded without utterance of offer and acceptance

– In case of dower–Harta sepencarian

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–In case of betrothal ceremony • Berpantun• Sarung cincin – exchange of ring• Exchange of gifts (Barang2 hantaran)

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• Verbal and actual custom are further divided into two types – general and special (al-’urf al-’am and al-’urf al-khas)

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General 'Urf

• Prevails everywhere on which the people agree regardless of the passage of time.–Example is bay’ al-ta’ati–Fee imposed on entry to public baths or parking space or public toilet etc.

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Special 'Urf

• Prevails in particular locality, profession or trade – eg: KL stock exchange

• Hanafi said that this kind of ‘urf does not qualify the general provisions of the nass. It will be ignored when it contradicts the nass.

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• ‘urf is also categorised as sahih (valid or approved) and fasid (disapproved).

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Relationship between urf and sunnah, ijma' and

ijtihad• Urf and Sunnah

– General rule is ‘urf must not violate nass including sunnah but if the conflict between ‘urf and nass is not absolute then custom is allowed to act as limiting factor on the text.

– Examples – bay’ istisna’ and salam

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–“The Prophet prohibited the sale of non-existing objects but he permitted salam.”

–The hadis is general in that it applies to all varieties of sale in which the object of sale is not present at the time of contract.

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– Salam was exceptionally permitted as it was deemed to be of benefit to the people.

– The rule applies the same to istisna’ but since istisna’ was commonly practiced among all people of all ages, the fuqaha’ have validated it on grounds of general custom.

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–Consequently the custom concerning istisna’ is allowed to operate as a limiting factor on the textual ruling of the hadis in that the hadis is qualified by the custom concerning istisna’.

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• ‘Urf and Ijma’–They are similar but different.–(i) ‘urf materialises by the

agreement of all or the dominant majority of the people and its existence is not affected by disagreement of a few individuals

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– Ijma’ requires the consensus of all mujtahidun of the period or the generation in which it materialises.

– (ii) ‘Urf does not depend on agreement of mujtahidun but must be accepted by the majority of people including mujtahidun

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– For ijma’ only mujtahidun can decide on juridical matters not the laymen

– (iii) the rules of ‘urf are changeable and a custom may in course of time give way to another custom or may simply disappear with a change of circumstances but not ijma’

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– Ijma’, once concluded precludes fresh ijtihad on the same issue and is not open to abrogation or amendments.

– (iv) ‘Urf requires an element of continuity – if it exists over a period of time

– Ijma’ come into existence whenever the mujtahidun reach unanimous agreement. It requires no continuity.

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