4. INTRODUCTION
Custom plays an important role in the development
INTRODUCTION
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.
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5. DEFINITION
Literally:
INTRODUCTION
To know
APPLICATION Technically:
Recurring practices which are acceptable to people of
INFLUENCE sound nature
Some practice which are practiced by some people or a
CLASSIFICATION society and they become accustomed to doing it
EVIDENCES
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MAXIMS
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6. DEFINITION
Various definitions of „urf have been given by
INTRODUCTION
Muslim jurists. According to:
Khallaf : What is established and practiced by people
APPLICATION
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 is
CLASSIFICATION
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
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MAXIMS behaviour.
Zarqa‟ : The behaviour of a group of people in their
sayings or doings
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7. MEANING
The definitions indicate that in order for „urf to be
INTRODUCTION
valid (as a hukm) it must be consistent with the
practice of a group of people. Accordingly the
APPLICATION
practice of an individual is not an „urf but a
INFLUENCE
personal habit („adah fardiyyah).
Uruf = adah: known recurring practices
CLASSIFICATION (words/action)acceptable by people of sound
nature/mind.
EVIDENCES
Custom plays an important role in the growth of
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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.
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8. AUTHORITY OF ‘URUF
„Adah/custom have the authority & can
INTRODUCTION
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.
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MAXIMS
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9. AUTHORITY OF ‘URUF
Therefore, if there arises any dispute among the
INTRODUCTION
people in a particular transaction, the normal
practice in that particular transaction should be the
APPLICATION
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.
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10. THE INFLUENCE OF CUSTOM IN ISLAMIC JURISPRUDENCE
Before Islam, the traditions and customs were the
INTRODUCTION
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 the
CLASSIFICATION formation of Islamic law.
EVIDENCES
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MAXIMS
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11. THE INFLUENCE OF CUSTOM IN ISLAMIC JURISPRUDENCE
1. A number of texts, particularly of the traditions
INTRODUCTION were based upon custom and usages.
Example: the principle of blood money or diyah - is
APPLICATION based upon customs.
2. The part of the sunnah based upon the tacit
INFLUENCE approval of the Prophet comprises many of the
Arab customs
CLASSIFICATION 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.
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12. THE INFLUENCE OF CUSTOM IN ISLAMIC JURISPRUDENCE
According to Imam Malik the customary conduct of
INTRODUCTION
the citizens of medinah (amal ahli madinah) is
accepted as source of law in the absence of an
APPLICATION
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
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MAXIMS jurists.
Example: Istihsan (Juristic Preference).
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13. 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.
INFLUENCE
CLASSIFICATION
EVIDENCES
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MAXIMS
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14. VERBAL (QAWLI) & PRACTICAL ( ‘AMALI) ‘URF
INTRODUCTION Verbal „Urf Practical „Urf
• Consists of the general • Consists of commonly
APPLICATION 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
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prayers of Muslims, and this
MAXIMS second usage eventually
become predominant. E.g
walad, lahma etc
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15. GENERAL (‘AMM) & PARTICULAR (KHASS) ‘URF
INTRODUCTION
General „Urf Particular „Urf
• Common custom which is • „Urf which is prevalent in
APPLICATION 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 in
CLASSIFICATION
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.
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16. VALID(SAHIH) AND INVALID (FASID) ‘URF
INTRODUCTION
Valid „Urf Invalid „Urf
APPLICATION • „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 of
CLASSIFICATION
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.
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17. CONDITIONS OF VALID ‘URF
1. Reasonable and acceptable to the people with wise
INTRODUCTION reason and sound behavior,
2. Common and frequent recurrence - it must be practiced
APPLICATION 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 later
CLASSIFICATION
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
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18. EVIDENCES
QURAN
INTRODUCTION
“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
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19. EVIDENCES
HADITH
INTRODUCTION
Reported by „Aishah r.a: “Hind, the daughter of „Utbah,
wife of Abu Sufyan, came to Allah‟s Messenger and
APPLICATION
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.
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20. EVIDENCES
Saying of „Abdullah b. Mas‟ud: “what the Muslims
INTRODUCTION
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
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MAXIMS
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21. 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 of
CLASSIFICATION 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.
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22. RELATED MAXIMS
INTRODUCTION
It cannot be denied that with a change of times the
APPLICATION 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 theft
CLASSIFICATION Offer and acceptance in electronic based contract (ATM,
internet banking etc)
EVIDENCES
RELATED
MAXIMS
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23. RELATED MAXIMS
INTRODUCTION
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
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24. RELATED MAXIMS
INTRODUCTION
A thing known amongst merchants is a though fixed
APPLICATION 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 it
CLASSIFICATION 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
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25. RELATED MAXIMS
INTRODUCTION
A matter establish by custom is like a matter
APPLICATION established by a legal text (Art 45)
Example:
INFLUENCE A contract of sale using local currencies
CLASSIFICATION
EVIDENCES
RELATED
MAXIMS
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26. RELATED MAXIMS
INTRODUCTION
Effect is only given to custom where it is regular
APPLICATION 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 Quran
CLASSIFICATION 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
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27. APPLICATION
The practice of people of certain places to divide dowry
INTRODUCTION
in marriage contract into two type. The first is the dowry
paid when the contract is concluded and second is the
APPLICATION 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 acceptance
CLASSIFICATION
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
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