The Role of ‘Urf (Custom) in Islamic Law

Islamic law is primarily derived from the Qur’an and Sunnah according to the consensus of the Muslim scholars.  However, there is a difference of opinion among the scholars on how to approach issues that are not explicitly and directly mentioned in these two sources.  In other words, there is no indication from the Qur’an and Sunnah on how to approach the issue.  This opens the door for ijtihaad, for a highly qualified group of scholars, to give rulings on these issues based on principles derived from the two primary sources and to utilize secondary sources, as a form of tool, in deriving Islamic law.  The authority of these secondary sources in deriving Islamic law is disputed among the scholars.  Therefore, a scholar may reject a particular secondary source while accepting another and so on.  ‘Urf (Custom) is among these disputed secondary sources.  Mohammad Hashim Kamali defines ‘urf as “recurring practices that are acceptable to people of sound nature.”[1]  Hence, this definition will exclude “recurring practices among some people in which there is no benefit or which partake of prejudice and corruption.”[2]  One of the reasons for the scholars’ hesitancy in accepting ‘urf as a proof is because of its instability.  It can change based on time and place at any given period.  This means a ruling of Islamic law will not be constant but changing based on time and place.[3]  However, the scholars, in general, have adopted it in one form or another and have based rulings on it.

The Proof of ‘Urf

Mohammad Hashim Kamali states, “The Shari’ah has, in principle, accredited approved custom as a valid ground in the determination of its rules relating to halal and haram.”[4]  There is no explicit text in the Qur’an and Sunnah which tells us that ‘urf is allowed to be used as proof in Islamic law, however, we do have certain implications from the Prophet (pbuh) and his companions that show the permissibility of its usage.  For example, some of the companions used to practice a type of birth control popular in that period called ‘azl:

“We used to practice coitus interruptus (‘azl) during the lifetime of Allah’s Messenger (pbuh) while the Qur’an was being revealed.”[5]

This report signifies that the Prophet approved of this custom among those not wanting to have children.  For if it was wrong, Allah would have sent down a command through His Prophet prohibiting this practice in Islam.

At other times, Islam allowed a custom to be practiced but put conditions on it in order to bring “them into line with the principles of the Shari’ah.”  Slavery is an example of such a custom.  Before Islam, slaves were treated like animals and there was no compassion or value for them.  When Islam came into the picture, it allowed the custom of slavery to continue, though strongly encouraging to free them, but it put certain rules in place to regulate their treatment. For example, the Prophet Muhammad (pbuh) is reported to have said, “It is essential to feed the slave, clothe him (properly) and not burden him with work which is beyond his power.”[6]

There were also times in which Islam wanted to completely eradicate a particular custom.  In such instances, either Allah would send down a verse from the Qur’an or the Prophet (pbuh) would state a hadith prohibiting such custom.  An example of this is when Allah commanded His Messenger (pbuh) to marry the divorcee of his adopted son Zayd.  In the Arabian culture at that time, an adopted son was considered the same as a real son; hence, the father marrying his adopted son’s ex-wife was inconceivable.  However, Allah wanted to show that there is nothing wrong with this practice because they are not their blood relatives through the example of His Messenger (pbuh).  So, Allah sent down the following:

When Zayd had no longer any need for her, We married her to you in order that there not be upon the believers any discomfort concerning the wives of their adopted sons when they no longer have need of them. (Qur’an 33:37)

What all of the above shows us is that “The basic principle with regard to customs is that they are permissible, unless it is narrated in sharee’ah that they are forbidden”[7] or regulated.  And this is rightly so because in general, asking people to go against the custom, which neither constitutes oppression, corruption, lewdness, etc., is a form of hardship on them which is not one of the aims of Shari’ah as Allah stated in the Qur’an, “Allah intends for you ease and does not intend for you hardship.” (Qur’an 2:185)

Types of ‘Urf

‘Urf is divided into several categories and subcategories.

The first two categories are the general divisions which cover all other subcategories:

Approved or Valid Custom (al-‘urf al-sahih)–   “One which is observed by the people at large without there being any indication in the Shari’ah that it contravenes any of its principles.”[8]

Disapproved Custom (al-‘urf al-fasid) – “Also practiced by the people but there is evidence to show that it is repugnant to the principles of Shari’ah.”[9]

The approved custom category above is divided into two types:

Verbal (qawli) – “Consists of the general agreement of the people on the usage and meaning of words deployed for purposes other than their literal meaning.  As a result…the customary meaning tends to become dominant…the original or literal meaning is reduced to the status of an exception.”[10]  Examples of this are the words salah, zakah, hajj, etc.  They are understood based on their custom meanings and not their literal meanings.

Actual (fi’li) – “Consists of commonly recurrent practices that are accepted by the people.”[11]

The two categories above are each subdivided into two types:

General ‘Urf (al-‘urf al-‘aam) – “One which is prevalent everywhere and on which the people agree regardless of the passage of time.”[12]

Special ‘Urf (al-‘urf al-khaas) – “[It] is prevalent in a particular locality, profession or trade…it is not a requirement…that it be accepted by people everywhere.”[13]

Conditions of Valid ‘Urf

Mohammad Hashim Kamali lists four requirements for a valid form of ‘Urf from which Islamic law may be derived:[14]

1. Custom must be a common and recurrent occurrence.  It must be dominant to the point that it is upheld in most of the cases to which it applies, otherwise, it does not hold any authority. Also, the practice of a few people in a large community is not sufficient; rather, it must be a regular occurrence among the masses.
2. In contracts and commercial transactions, custom must still be in existence at the time of the conclusion of the transaction.
3. Custom must not violate a clear stipulation of an agreement. Contractual agreements take preference over custom. Latter will only be resorted to in absence of the former.
4. Custom must not go against the definitive principles (nass) of Islamic law.  If it does so, custom will be given no consideration.  In case “the custom opposes only certain aspects of the text, then custom is allowed to act as a limiting factor on the text.”[15]

 

Bibliography

Kamali, Mohammad Hashim. Principles of Islamic Jurisprudence. Cambridge: The Islamic Texts Society, 2003.