Principle of Uruf

ISLAMIC LEGAL MAXIMS THE PRINCIPLES OF CUSTOMS MAHYUDDIN KHALID  emkay@salam.uitm.edu.my

CONTENT  INTRODUCTIONINTRODUCTION  APPLICATIONAPPLICATION  INFLUENCE OF „URUF IN ISLAMIC JURISPRUDENCE INFLUENCE  CONDITIONS OF VALID „URUF  CLASSIFICATION OF „URUFCLASSIFICATION  ROLES OF „URUF EVIDENCES  EVIDENCES RELATED  RELATED MAXIMS MAXIMS 2

THE MAXIMSINTRODUCTIONAPPLICATION INFLUENCECLASSIFICATION Custom is EVIDENCES authoritative (Art 36) RELATED MAXIMS 3

INTRODUCTION  Custom plays an important role in the developmentINTRODUCTION of Islamic law.APPLICATION  One of the feature of Islamic law is that some of its ruling can change according to the changes of INFLUENCE circumstances, i.e. place, time, custom and the behavior of people.CLASSIFICATION  This is why it is possible for this law to be practiced at any time and place. EVIDENCES  However, there are some laws, which were fixed RELATED and cannot be changed. These are held to be MAXIMS immutable and suitable to be implemented at all times. 4

DEFINITION  Literally:INTRODUCTION  To knowAPPLICATION  Technically:  Recurring practices which are acceptable to people of INFLUENCE sound nature  Some practice which are practiced by some people or aCLASSIFICATION society and they become accustomed to doing it EVIDENCES RELATED MAXIMS 5

DEFINITION  Various definitions of „urf have been given byINTRODUCTION Muslim jurists. According to:  Khallaf : What is established and practiced by peopleAPPLICATION from their sayings and doings, or not doing.  Badran : What is established and common in a group of INFLUENCE people (jumhur) from their sayings and doings, and is consistently repeated until it influences them and isCLASSIFICATION therefore accepted by their reason. He further noted that not all that is established and common can be EVIDENCES considered as „urf, but it is that which is established and common to the people with wise reason and sound RELATED MAXIMS behaviour.  Zarqa‟ : The behaviour of a group of people in their sayings or doings 6

MEANING  The definitions indicate that in order for „urf to beINTRODUCTION valid (as a hukm) it must be consistent with the practice of a group of people. Accordingly theAPPLICATION practice of an individual is not an „urf but a INFLUENCE personal habit („adah fardiyyah).  Uruf = adah: known recurring practicesCLASSIFICATION (words/action)acceptable by people of sound nature/mind. EVIDENCES  Custom plays an important role in the growth of RELATED Islamic law. Although, it is not recognized as a MAXIMS major source of the law, but it can be relied upon in matters where the Shara‟ did not give the exact details. 7

AUTHORITY OF ‘URUF  „Adah/custom have the authority & canINTRODUCTION  specify a general matter (takhsis al-‟amm) or;  restrict an unrestricted matter (taqyid al-mutlaq).APPLICATION  Example: INFLUENCE  If a contract does not specify whether the delivery of the goods is the responsibility of the purchaser or retailer,CLASSIFICATION the prevailing custom (normal practice) should be depended upon to specify & clarify the matter which is EVIDENCES not cited in the contract. RELATED MAXIMS 8

AUTHORITY OF ‘URUF  Therefore, if there arises any dispute among theINTRODUCTION people in a particular transaction, the normal practice in that particular transaction should be theAPPLICATION arbitrator to resolve the dispute. INFLUENCE  However, if the custom contradicts a stipulated agreement between the parties involved, it (custom)CLASSIFICATION is nullified.  The agreement should prevail & not the practice EVIDENCES because the statement or condition which is agreed RELATED on in the contract has greater authority over the MAXIMS customary practice of the people. 9

THE INFLUENCE OF CUSTOM IN ISLAMIC JURISPRUDENCE  Before Islam, the traditions and customs were theINTRODUCTION basis of the Arab‟s life, including their religion, morality trade and transactions.APPLICATION  With the rise of Islam, custom was diminished in INFLUENCE importance.  „Uruf or adat is considered as having impact in theCLASSIFICATION formation of Islamic law. EVIDENCES RELATED MAXIMS 10

THE INFLUENCE OF CUSTOM IN ISLAMIC JURISPRUDENCE 1. A number of texts, particularly of the traditionsINTRODUCTION were based upon custom and usages.  Example: the principle of blood money or diyah - isAPPLICATION based upon customs. 2. The part of the sunnah based upon the tacit INFLUENCE approval of the Prophet comprises many of the Arab customsCLASSIFICATION  Example: the Prophet was silent in a number of commendable customs based upon the Prophet‟s EVIDENCES Sunnah. 3. The customary of citizen of Madinah was regarded RELATED MAXIMS as a sufficient concencus of opinion  Example: Maliki school of thought accepted practice of Madinah people in the absence of an explicit text. 11

THE INFLUENCE OF CUSTOM IN ISLAMIC JURISPRUDENCE  According to Imam Malik the customary conduct ofINTRODUCTION the citizens of medinah (amal ahli madinah) is accepted as source of law in the absence of anAPPLICATION explicit text. The conducts of the citizens of medinah INFLUENCE was in most cases based upon customs and usages which had prevailed in that city.CLASSIFICATION  When the Arabs in their conquest were introduced to customs unknown to them which were not in EVIDENCES conflict with any nass of shariah , such customs accepted in the shariah by means of consensus of RELATED MAXIMS jurists.  Example: Istihsan (Juristic Preference). 12

CLASSIFICATION OF ‘URF  The Verbal (Qawli) and Practical ( „Amali) „Urf.INTRODUCTION  The General („Amm) and Particular (Khass) „Urf.APPLICATION  The Valid(Sahih) and Invalid (Fasid) „Urf. INFLUENCECLASSIFICATION EVIDENCES RELATED MAXIMS 13

VERBAL (QAWLI) & PRACTICAL ( ‘AMALI) ‘URFINTRODUCTION Verbal „Urf Practical „Urf • Consists of the general • Consists of commonlyAPPLICATION agreement of the people on recurrent practices of the the usage and meaning of people in daily life INFLUENCE words for purposes other • Example: Taking vacations than their literal meaning. on certain days and civil • Example: The word solah – transactions like bay‟ al-CLASSIFICATION literally means al-du‟a or ta‟ati etc. request. However it has EVIDENCES been used in the Quran to describe the obligatory RELATED prayers of Muslims, and this MAXIMS second usage eventually become predominant. E.g walad, lahma etc 14

GENERAL (‘AMM) & PARTICULAR (KHASS) ‘URFINTRODUCTION General „Urf Particular „Urf • Common custom which is • „Urf which is prevalent inAPPLICATION prevalent everywhere a particular locality, among all people profession or trade. INFLUENCE regardless of time. • This type of „urf is • Example: The contract of accepted by the people in a istisna‟ (the order for the particular place and not inCLASSIFICATION manufacture of goods at all places. an agreed price) which is a • Example: Malaysians enter EVIDENCES necessity and is commonly homes leaving shoues practiced everywhere. outside their homes but RELATED • Or the word nazar is Jordanians don‟t. MAXIMS known generally for something compulsory or wajib) to do. 15

VALID(SAHIH) AND INVALID (FASID) ‘URFINTRODUCTION Valid „Urf Invalid „UrfAPPLICATION • „Urf which does not • Aainst the principle of contradict the Shari‟ah or Shari‟ah or it denies the INFLUENCE deny the interest of interest of people or it people and at the same brings corruptions. time does not bring • Example: The practice ofCLASSIFICATION corruption. usury or riba in transactions. Although it EVIDENCES is common among many people it is against RELATED Shari‟ah therefore such MAXIMS transactions are invalid and must be avoided. 16

CONDITIONS OF VALID ‘URF 1. Reasonable and acceptable to the people with wiseINTRODUCTION reason and sound behavior, 2. Common and frequent recurrence - it must be practicedAPPLICATION by people commonly and frequently regardless of location. INFLUENCE 3. The custom must be in existence at the time of the transaction, not an extinct customary practice or a laterCLASSIFICATION custom.  Example: the price of an item accords to the present currency known by both parties even if it not mentioned. EVIDENCES 4. Does not contradict the text (whether nass Quran or RELATED sunah, agreed contract) MAXIMS  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 17

EVIDENCES  QURANINTRODUCTION  “Keep to forgiveness, enjoin urf and turn away from the ignorant” (al-A‟raf :199)APPLICATION  Many mufassirun suggested that the meaning of „urf in this verse is synonymous to ma‟ruf which means INFLUENCE anything that is good. Therefore the custom of people shall be considered in making legal judgment.CLASSIFICATION  Al-Quran also has considered some of the „urf of the early Arab community as a legal basis in its law. For EVIDENCES instance the principle of diyat, which was practiced in the early community, has been approved by the Quran. RELATED MAXIMS 18

EVIDENCES  HADITHINTRODUCTION  Reported by „Aishah r.a: “Hind, the daughter of „Utbah, wife of Abu Sufyan, came to Allah‟s Messenger andAPPLICATION said “Abu Sufyan is a miserly person. He does not give adequate maintenance for me and my children, but if I INFLUENCE take from his wealth (some part of it), without his knowledge. Is there any sin for me?” thereupon,CLASSIFICATION Prophet (SAW) said, “take from his property what is customary which may suffice you and your children”. EVIDENCES  Some commentators of Sunnah suggested that this hadith indicates the important role of custom and it RELATED MAXIMS should be relied upon in matters where Shara‟ did not give exact details. 19

EVIDENCES  Saying of „Abdullah b. Mas‟ud: “what the MuslimsINTRODUCTION deem to be good is good in the sight of Allah”.APPLICATION  The proof that can be deducted from this quotation is that custom, if not against Islamic teachings, is INFLUENCE normally considered as good practice to the Muslims and acceptable by people and reason.CLASSIFICATION  Therefore, such practice is accepted by Allah. So, it can be regarded as a source of law in Islam. EVIDENCES RELATED MAXIMS 20

ROLES OF ‘URUF  Referring to the above sources,INTRODUCTION  earlier and more recent scholars of Islamic law have agreed that custom is an important source of Islamic law.APPLICATION  They have not objected to the role of custom in solving the problem that arise in Islamic law. INFLUENCE  Imam Malik bin Anas for instance has considered the practice of Madinah people („amal ahl al-Madinah) as a source ofCLASSIFICATION Islamic law.  Similarly, Al-Syafii has made many ijtihad on issues that arose when he was in Iraq, but when he moved to Egypt he EVIDENCES changed some of his earlier opinions because of the different circumstances and customs in Egypt. RELATED MAXIMS  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. 21

RELATED MAXIMS INTRODUCTION  It cannot be denied that with a change of times theAPPLICATION requirements of the law changes (Art 39)  Example: INFLUENCE  It is permitted in our time to shut the door of the mosque, when it is not prayer time to avoid theftCLASSIFICATION  Offer and acceptance in electronic based contract (ATM, internet banking etc) EVIDENCES RELATED MAXIMS 22

RELATED MAXIMSINTRODUCTION   A thing known by common usage is like a stipulation,APPLICATION which has been made (Art 43)  Meaning: INFLUENCE  The custom must be accepted by people or society  Example:CLASSIFICATION  In manufacture of cloth, as a custom,ncustimer will give cloth and size of body to tailor. Subsequently, tailor will EVIDENCES make clothes to customer without give any item RELATED MAXIMS 23

RELATED MAXIMS INTRODUCTION  A thing known amongst merchants is a though fixedAPPLICATION by a stipulation between them (Art 44)  Example: INFLUENCE  If a merchant sold a commodity to a purchaser without agreement as to the time or a manner of payment and itCLASSIFICATION was customary for merchant to obtain the price by weekly installment then the contract of sale should be EVIDENCES interpreted according to particular customs RELATED MAXIMS 24

RELATED MAXIMSINTRODUCTION   A matter establish by custom is like a matterAPPLICATION established by a legal text (Art 45)  Example: INFLUENCE  A contract of sale using local currenciesCLASSIFICATION EVIDENCES RELATED MAXIMS 25

RELATED MAXIMS INTRODUCTION  Effect is only given to custom where it is regularAPPLICATION occurrence or when universally prevalent  Meaning: INFLUENCE  Custom is regular happen as well as not against by shariah. Activity that have been detemined in the QuranCLASSIFICATION or hadith cant be called customs like solat, hajj, fasting etc.  Customs is easy to accept in people and recurring EVIDENCES practices by people  Example: RELATED MAXIMS  Read Yaseen on Friday night 26

APPLICATION  The practice of people of certain places to divide dowryINTRODUCTION in marriage contract into two type. The first is the dowry paid when the contract is concluded and second is theAPPLICATION dowry paid at a later period of time  The custom that involves transactions is the sale of INFLUENCE offering and accepting or bay al-ta‟ati, which is normally concluded without the utterance of offer and acceptanceCLASSIFICATION  The customary images of certain words among certain group of people such as the usage of the word “doctor”. EVIDENCES In universities normally this title refers to a person who RELATED hold a Ph.D degree but among a common person this MAXIMS word normally refers to a medical practitioner 27

END OF CHAPTERINTRODUCTIONAPPLICATION INFLUENCECLASSIFICATION EVIDENCES RELATED MAXIMS 28

Principle of Uruf

by Mahyuddin Khalid

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