ISLAMIC LEGAL MAXIMS

THE PRINCIPLES OF CUSTOMS

MAHYUDDIN KHALID

emkay@salam.uitm.edu.my

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INTRODUCTION APPLICATION INFLUENCE OF URUF IN ISLAMIC JURISPRUDENCE CONDITIONS OF VALID URUF CLASSIFICATION OF URUF ROLES OF URUF EVIDENCES RELATED MAXIMS

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Custom is authoritative (Art 36)

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

DEFINITION
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Literally:
To know

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Technically:
Recurring practices which are acceptable to people of sound nature Some practice which are practiced by some people or a society and they become accustomed to doing it

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

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

AUTHORITY OF URUF
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Adah/custom have the authority & can

specify a general matter (takhsis al-amm) or; restrict an unrestricted matter (taqyid al-mutlaq).

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Example:
If a contract does not specify whether the delivery of the goods is the responsibility of the purchaser or retailer, the prevailing custom (normal practice) should be depended upon to specify & clarify the matter which is not cited in the contract.

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

THE INFLUENCE OF CUSTOM IN ISLAMIC JURISPRUDENCE

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Before Islam, the traditions and customs were the basis of the Arabs life, including their religion, morality trade and transactions. With the rise of Islam, custom was diminished in importance. Uruf or adat is considered as having impact in the formation of Islamic law.

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THE INFLUENCE OF CUSTOM IN ISLAMIC JURISPRUDENCE

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1. A number of texts, particularly of the traditions were based upon custom and usages.
Example: the principle of blood money or diyah - is based upon customs.

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2. The part of the sunnah based upon the tacit approval of the Prophet comprises many of the Arab customs
Example: the Prophet was silent in a number of commendable customs based upon the Prophets Sunnah.

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3. The customary of citizen of Madinah was regarded 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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THE INFLUENCE OF CUSTOM IN ISLAMIC JURISPRUDENCE

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According to Imam Malik the customary conduct of the citizens of medinah (amal ahli madinah) is accepted as source of law in the absence of an explicit text. The conducts of the citizens of medinah was in most cases based upon customs and usages which had prevailed in that city. When the Arabs in their conquest were introduced to customs unknown to them which were not in conflict with any nass of shariah , such customs accepted in the shariah by means of consensus of jurists.
Example: Istihsan (Juristic Preference).

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CLASSIFICATION OF URF
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The Verbal (Qawli) and Practical ( Amali) Urf. The General (Amm) and Particular (Khass) Urf. The Valid(Sahih) and Invalid (Fasid) Urf.

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VERBAL (QAWLI) & PRACTICAL ( AMALI) URF

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Verbal Urf Consists of the general agreement of the people on the usage and meaning of words for purposes other than their literal meaning. Example: The word solah literally means al-dua or request. However it has been used in the Quran to describe the obligatory prayers of Muslims, and this second usage eventually become predominant. E.g walad, lahma etc

Practical Urf Consists of commonly recurrent practices of the people in daily life Example: Taking vacations on certain days and civil transactions like bay altaati etc.

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GENERAL (AMM) & PARTICULAR (KHASS) URF

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General Urf Common custom which is prevalent everywhere among all people regardless of time. Example: The contract of istisna (the order for the manufacture of goods at an agreed price) which is a necessity and is commonly practiced everywhere. Or the word nazar is known generally for something compulsory or wajib) to do.

Particular Urf Urf which is prevalent in a particular locality, profession or trade. This type of urf is accepted by the people in a particular place and not in all places. Example: Malaysians enter homes leaving shoues outside their homes but Jordanians dont.

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VALID(SAHIH) AND INVALID (FASID) URF

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Valid Urf Urf which does not contradict the Shariah or deny the interest of people and at the same time does not bring corruption.

Invalid Urf Aainst the principle of Shariah or it denies the interest of people or it brings corruptions. Example: The practice of usury or riba in transactions. Although it is common among many people it is against Shariah therefore such transactions are invalid and must be avoided.

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CONDITIONS OF VALID URF

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Reasonable and acceptable to the people with wise reason and sound behavior, Common and frequent recurrence - it must be practiced by people commonly and frequently regardless of location. The custom must be in existence at the time of the transaction, not an extinct customary practice or a later custom.
Example: the price of an item accords to the present currency known by both parties even if it not mentioned.

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Does not contradict the text (whether nass Quran or sunah, agreed contract)
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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EVIDENCES
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QURAN
Keep to forgiveness, enjoin urf and turn away from the ignorant (al-Araf :199) Many mufassirun suggested that the meaning of urf in this verse is synonymous to maruf which means anything that is good. Therefore the custom of people shall be considered in making legal judgment. Al-Quran also has considered some of the urf of the early Arab community as a legal basis in its law. For instance the principle of diyat, which was practiced in the early community, has been approved by the Quran.

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

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EVIDENCES
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Saying of Abdullah b. Masud: what the Muslims deem to be good is good in the sight of Allah. The proof that can be deducted from this quotation is that custom, if not against Islamic teachings, is normally considered as good practice to the Muslims and acceptable by people and reason. Therefore, such practice is accepted by Allah. So, it can be regarded as a source of law in Islam.

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ROLES OF URUF
Referring to the above sources,
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earlier and more recent scholars of Islamic law have agreed that custom is an important source of Islamic law. They have not objected to the role of custom in solving the problem that arise in Islamic law. Imam Malik bin Anas for instance has considered the practice of Madinah people (amal ahl al-Madinah) as a source of 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 changed some of his earlier opinions because of the different circumstances and customs in Egypt.

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

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RELATED MAXIMS
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A thing known by common usage is like a stipulation, which has been made (Art 43) Meaning:
The custom must be accepted by people or society

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Example:
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In manufacture of cloth, as a custom,ncustimer will give cloth and size of body to tailor. Subsequently, tailor will make clothes to customer without give any item

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

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RELATED MAXIMS
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A matter establish by custom is like a matter established by a legal text (Art 45) Example:
A contract of sale using local currencies

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RELATED MAXIMS
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Effect is only given to custom where it is regular occurrence or when universally prevalent Meaning:
Custom is regular happen as well as not against by shariah. Activity that have been detemined in the Quran or hadith cant be called customs like solat, hajj, fasting etc.

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Customs is easy to accept in people and recurring practices by people Example:

Read Yaseen on Friday night

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

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