SHA 3348 – 05 Qawaid al-Fiqhiyyah

Hujjiyyah
`Urf ( ‫) الُعْر ُف‬Custom )
Definition
 Derived from its Arabic root 'arafa (to know)  Al-Ma‘rû f ( ‫ ) الَم ْع روُف‬is a general  ‘Urf has two forms:  The qa’idah means that practices
 Literally - something which is known  I. Lawful ‘Urf does not contradict of people, be they actions or
name including worshipping
 Juristically – Nuss, incurs more probable sayings – general or specific, of a
Allâ h, dealing with people in a
i. Recurring practices which are acceptable to Mafsadah (a source of harm or certain group of people, can have
reasonable manner, and
people of sound nature. ruin, or a reason of corruption or authority in the absence of specific
commands and prohibitions of
ii. The collective practice of a large number of evil) or ignores permitted nusus, or, in case of the presence of
Sharî‘ah.
people  Al-’Urf is considered one of the Maslahah. People, for example, are the nusus, it can specify a general
 Another term synonyms with ‘urf is ‘adah but used to fixing prices, dealing with nass or restrict an unrestricted one.
Adillah Shar‘iyyah
they have to be distinguished: different currencies, defining
 ‘Adah means repetition or recurrent practice of expressions and words employed
 Islamic legal theory granted
individuals or a group of individuals. ‘Adah refers in contracts.
custom a formal status,
to the habits of individuals.  II. Unlawful ‘Urf, on the contrary,
recognizing it as a legal principle
 Most jurists consider ‘urf and ‘adah to mean the challenges the Nuss, invites to
of Shari’ah and a valid basis of
same. more probable Mafsadah or closes
judicial decision.
 Qawa’id manuals opted to employ the term ‘adah the eyes to permitted Maslahah.
when expressing the qa’idah under research. Many people, for example, are
 the concept of ‘urf is tied to the Quranic concept used to devouring Ribâ
of ma’ruf.
 Ma’ruf commonly means known, understood,
recognized, acknowledged and accepted.
 In Arabic, such habit or custom which widely
accepted and respected is known as ma’ruf.
 Indicating the significance of Al-’Urf concerning
passing Ahkâ m, the words “Al-’Urf” and “Al-
Ma‘rû f” are repeated in the Noble Qur’â n about
37 times.
 Ma’ruf in the Qura[nic usage is equated with good.
 Both ‘urf and ma’ruf are interpreted as adherence
to Allah's injunctions.
 Example:
• "ta’muruna bi-l-ma’rufi wa tanhawna ‘an al-
munkar" means: you enjoin belief in God and in
His Messenger and enforce His laws, and you
forbid disbelief and indulgence in the haram.
• The Quran says: "khudhi-l-’afwa wa-mur bi-l
‘urfi wa- ‘arid ‘ani-l-jahilin" which means: keep
to forgiveness, enjoin urf (fear of God and
theobservance of His commands and
prohibitions) and turn away from the ignorant.
(surah al-Araf :199) 1
 SHA 3348 – 05 Qawaid al-Fiqhiyyah
 The ‘ulama have generally accepted ‘urf as a
valid criterion for purpose of interpreting al-
Quran.
 Indicating the significance of Al-’Urf
concerning passing Ahkâ m, the words “Al-’Urf”
and “Al-Ma‘rû f” are repeated in the Noble
Qur’â n about 37 times.
 Examples:
• al-Talaq (65):7 - “Let those who possess
pay by their means.”
• 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.
• 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
Hujjiyyah
 Based on the practices of the Prophet and  Based on legal maxims:
the companions ‘Custom is the basis of
 Al-Bukhri narrated in his al-Jami al-sahih on judgement‘
the authority of {Aishah, wife of the Propet ‫ﻤﺤﻜﻤﺓ ﺍﻟﻌﺎﺪﺓ‬
(PBUH) that:
‘‘Hind, mother of Muawiyah, said to Allah’s  It is based on the hadith:
Messenger, “Abu Sufyan (her husband) is a
miser. Am I allowed to take from his money
‫ﺤﺴﻦ ﺍﻟﻟﻪ ﻋﻧﺪ ﻔﻬﻮ ﺤﺴﻧﺎ ﺍﻟﻤﺴﻟﻤﻮﻦ‬
secretly?" The Prophet (PBUH) said to her, ‫ﺮﺁﮦ ﻤﺎ‬
“You and your sons may take what is  “what the Muslims deem to be
sufficient reasonably and fairly”. or good is good in the eyes of Allah”
• The phrase ‘what is sufficient reasonably
and fairly’ “bil- ma’ruf” is a derivative of  “What is proven by ‘urf is like that
the term (‘urf). which is proven by a shar’i proof”
• Accordingly, a wife whose husband is a  ‘What is determined by custom is
miser can take from his money without his tantamount to a contractual
knowledge for the maintenance of herself stipulation”
and their children in accordance to what ‫ﺸﺭﻁﺎ ﻜﺎﻟﻤﺸﺭﻮﻁ ﻋﺭﻔﺎ ﺍﻟﻤﻌﺭﻮﻒ‬
people in her social class spend for their
maintenance.  Example:
• The basis of the legal decision was clearly • When someone rents a car, he
custom. should use it according to what is
customary and familiar, a
condition that is presumed to
apply even if not stated in the
contract.
2

 Hanafi
 Muhammad ibn al-Hasan
Shaybani, the disciple of Abu Hanifah,
mentioned in his al-Siyar al-Kabir in
this regard that “ ‘urf is decisive ” and
that “evidence derived from custom is
like that inferred from a nass”.
 In addition, ‘urf is also assimilated
within the concept of istihsan; one of
the sources of the law in the Hanafi
school.
SHA 3411 – 07 `Urf ‫( عرف‬Custom )
Conditions of valid 'urf
 Maliki  Must not contravene clear  ‘Must not violate nass that is the
 ‘urf is widely recognized from the stipulation of an agreement definitive principles of the law
al- very outset.
 The concept of ‘amal ahl al-  As-Suyuti “The accepted custom is  the opposition of custom to the nass
Madinah, referring mainly to the similar to the stipulated agreement.” may either be absolute or partial.
customary practice of the people of  The general rule is that the contractual  In case of absolute opposition, the
Medina who lived before the time of agreement prevail over custom and custom must be set aside.
Malik up to the time of the Prophet recourse to custom is only valid in the  Example of absolute opposition:
(PBUH), can be considered to be absence of an agreement. • Customary practice that excluding
sufficient proof for the argument for  Example: women from inheritance
the recognition of ‘urf and its • Custom : payment of dower by stages • Welcoming guest by serving
position in the Maliki school of law. • Agreement in contract : whole intoxicating liquor
 Become an exclusive Maliki source of • In this case, agreement in the contract • The practice of usury
law. prevails over the custom
 The consideration of ‘urf is also  In case of partial opposition, the
included within al-maslahah al- custom is allowed to act as a limiting
mursalah (public interest), another factor on the text.
source for the Maliki school of law.  Examples of partial opposition:
• Practice of bay al-salam. The
Prophet in hadis prohibited the sale
of non-existing objects but he
permitted salam
• 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
 How about ‘jual janji’? contract.
 Jual janji is a customary security transaction whereby a land owner transfers his property • The hadith quoted: “the Prophet
to a creditor for a loan on condition that, if the loan is repaid within a stipulated time, the forbade sale coupled with a
property will be retransferred to the vendor for the same price. condition.”
 If the condition is not met, then the jual janji (conditional sale) arrangement is • However, the majority of Hanafi
transformed into jual putus (outright sale). and Maliki jurists have validated
 The loan is considered part of the price of the land, and in former years was normally not conditions which are accepted by
commensurate with the actual value of the property the people at large and which
represent standard custom.
3
 SHA 3411 – 07 `Urf ‫( عرف‬Custom )

Conditions of valid 'urf

 Must represent a common and  ‘Must be in existence at the time a  Must not contravene clear  ‘Must not violate nass that is the
recurrent phenomenon. transaction is concluded stipulation of an agreement definitive principles of the law

 The practice of a few individuals or  Example in contracts and commercial  As-Suyuti “The accepted custom is  the opposition of custom to the nass
limited number of people is not transaction similar to the stipulated agreement.” may either be absolute or partial.
authoritative.  Relevant to the interpretation of  The general rule is that the contractual  In case of absolute opposition, the
 Art. 14 of the Majallatul Ahkam document. agreement prevail over custom and custom must be set aside.
al-’Adliyyah provides that:  recourse to custom is only valid in the  Example of absolute opposition:
• ‘Effect is only given to custom which absence of an agreement. • Customary practice that excluding
is of regular occurrence’  Example: women from inheritance
• Custom must also be dominant i.e • Custom : payment of dower by stages • Welcoming guest by serving
that it is observed in all or most of the • Agreement in contract : whole intoxicating liquor
cases to which it can apply. • In this case, agreement in the contract • The practice of usury
prevails over the custom
 In case of partial opposition, the
custom is allowed to act as a limiting
factor on the text.
 Examples of partial opposition:
• Practice of bay al-salam. The
Prophet in hadis prohibited the sale
of non-existing objects but he
permitted salam
• 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
 How about ‘jual janji’? contract.
 Jual janji is a customary security transaction whereby a land owner transfers his property • The hadith quoted: “the Prophet
to a creditor for a loan on condition that, if the loan is repaid within a stipulated time, the forbade sale coupled with a
property will be retransferred to the vendor for the same price. condition.”
 If the condition is not met, then the jual janji (conditional sale) arrangement is • However, the majority of Hanafi
transformed into jual putus (outright sale). and Maliki jurists have validated
 The loan is considered part of the price of the land, and in former years was normally not conditions which are accepted by
commensurate with the actual value of the property the people at large and which
represent standard custom.

4
 SHA 3411 – 07 `Urf ‫( عرف‬Custom )

Types of Custom

Verbal (qawli) Action (Fi’li)

 Consists of general agreement of the
people on the usage and meaning of
words deployed for purposes other
than their literal meaning.
 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.
 Examples:
• Solah
• Zakah customary meaning
• Hajj
 “Kepala mayat?”
• Fixed share allocated to surviving
spouse.
 The word ‘ulama’”
• Literally means those who are
knowledgeable in religion – many
• Customarily refers to any person who
is religious and knowledgeable in
religion one or many
 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.
 Lahm (‫ ) ﺍﻟﻟﺤﻢ‬in the Quran it refers
also to fish but customarily it refers
to meat other than fish.
 Daabah ( ‫ ) ﺍﻟﺪﺍﺒﺔ‬in Quran it refers
to all creatures including human
being. Customarily it refers to four
legged animals.
 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.
 the Quranic usage of the word
walad is offspring, i.e. both sons and
daughters; yet people use it to refer
to the male offspring exclusively.
 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
house
• If he just set his foot in the house
without entering it then he will not
be liable for kaffarah
 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?
 ‘Consists of commonly recurrent practices which are accepted by the
people.
 Examples:
• give and take sale (bay’ al-ta’ati) – concluded without utterance of
offer and acceptance
• In case of dower
• Harta sepencarian
• In case of betrothal ceremony
 Berpantun
 Sarung cincin – exchange of ring
 Exchange of gifts (Barang2 hantaran)
Verbal and actual custom
are further divided into two types:
General and special
General `Urf Special `Urf
(al-’urf al-’am) (al-’urf al-khas)
 Prevails everywhere on which the  Prevails in particular locality,
people agree regardless of the passage profession or trade – eg: KL stock
of time. exchange
 Example is bay’ al-ta’ati  Hanafi said that this kind of ‘urf
 Fee imposed on entry to public baths does not qualify the general
or parking space or public toilet etc. provisions of the nass. It will be
ignored when it contradicts the nass.
 ‘urf is also categorised as sahih (valid
or approved) and fasid
(disapproved).