2. DEFINITION
• Literally - something which is known
• Juristic –
I. Recurring practices which are
acceptable to people of sound nature.
II. The collective practice of a large
number of people
2
3. • Another term synonyms with ‘urf is ‘adah
but they have to be distinguished:
• ‘Adah means repetition or recurrent
practice of individuals or a group of
individuals. ‘Adah refers to the habits of
individuals.
• Most jurists consider ‘urf and ‘adah to
mean the same.
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4. HUJJIYYAH
• The ‘ulama have generally accepted ‘urf
as a valid criterion for purpose of
interpreting al-Quran.
–E.g. “Let those who possess pay by
their means.” -al-Talaq (65):7.
• 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.
4
5. –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
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6. • Based on legal maxims:
• ‘Custom is the basis of judgement‘
– ﻤﺤﻜﻤﺓﺍﻟﻌﺎﺪﺓ
• It is based on the hadith:
– ﺤﺴﻦﺍﻟﻟﻪﻋﻧﺪﻔﻬﻮﺤﺴﻧﺎﺍﻟﻤﺴﻟﻤﻮﻦﺮﺁﮦﻤﺎ
– ‘what the Muslims deem to be good is
good in the eyes of Allah’
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7. • ‘What is proven by ‘urf is like that which is
proven by a shar’i proof”
• ‘What is determined by custom is
tantamount to a contractual stipulation
– ﺸﺭﻁﺎﻜﺎﻟﻤﺸﺭﻮﻁﻋﺭﻔﺎﺍﻟﻤﻌﺭﻮﻒ
» When someone rents a car, he should use
it according to what is customary and
familiar, a condition that is presumed to
apply even if not stated in the contract.
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8. • Based on the practices of the
Prophet and the companions
–The Prophet said to the wife of Abu
sufyan, “Take from the property of
Abu Sufyan what is adequate for
you and your child in a normal
manner.”
• The basis of the legal decision was
clearly custom.
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9. Significance of custom
• As a basis of reference for juristic
views and ijtihad.
–Example: Imam Syafi’e laid the
foundations of his school in Iraq but
then when he went to Egypt, he
changed some of his earlier views
owing to the different customs in
the Egyptian society
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10. Background of Custom
• Customs which were prevalent during the
lifetime of the Prophet and were not
expressly overruled by him become part of
Sunnah taqririyyah.
• Islam has retained some of the Arab
customary practices with some reforms
such as the payment of blood money, bay
as-salam, mortgage and kafa’ah in
marriage, principle of ‘asabah in
inheritance.
10
11. • For the post-Islamic custom of the
Arabian society, Imam Malik has gone
far as to equate ‘amal ahl madinah
with ijma’
• The practices constitutes a source of
law in the absence of an explicit ruling
in the Quran and Sunnah.
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12. Conditions of valid 'urf
• Must represent a common and
recurrent phenomenon
–The practice of a few individuals or
limited number of people is not
authoritative
12
13. –Art. 14 of the Majallatul Ahkam
al-’Adliyyah provides that:
• ‘Effect is only given to custom which
is of regular occurrence’
• Custom must also be dominant i.e
that it is observed in all or most of
the cases to which it can apply.
13
14. • Must be in existence at the time a
transaction is concluded
–Example in contracts and
commercial transaction
• Relevant to the interpretation of
document
14
15. • Must not contravene clear
stipulation of an agreement
–As-Suyuti “ The accepted custom is
similar to the stipulated agreement.”
–The general rule is that the contractual
agreement prevail over custom and
recourse to custom is only valid in the
absence of an agreement.
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16. • Example:
–Custom : payment of dower by
stages
–Agreement in contract : whole
• In this case, agreement in the
contract prevails over the custom
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17. • Must not violate nass that is the
definitive principles of the law
–the opposition of custom to the nass
may either be absolute or partial.
–In case of absolute opposition, the
custom must be set aside.
–In case of partial, the custom is allowed
to act as a limiting factor on the text.
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18. • Example of absolute opposition:
–Customary practice that excluding
women from inheritance
–Welcoming guest by serving
intoxicating liquour
–The practice of usury
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19. • Examples of partial opposition:
–Practice of bay al-salam. The
Prophet in hadis prohibited the sale
of non-existing objects but he
permitted salam
19
20. –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
contract.
–The hadith quoted: “the Prophet
forbade sale coupled with a
condition.”
20
21. • However, the majority of Hanafi
and Maliki jurists have validated
conditions which are accepted by
the people at large and which
represent standard custom.
• How about ‘jual janji’?
21
22. • Jual janji is a customary security
transaction whereby a land owner
transfers his property to a creditor
for a loan on condition that, if the
loan is repaid within a stipulated
time, the property will be
retransferred to the vendor for the
same price. 22
23. • If the condition is not met, then the
jual janji (conditional sale)
arrangement is transformed into jual
putus (outright sale).
• The loan is considered part of the
price of the land, and in former years
was normally not commensurate with
the actual value of the property
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25. Verbal (qauli)
• Consists of general agreement of
the people on the usage and
meaning of words deployed for
purposes other than their literal
meaning.
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26. • 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.
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29. • The word ‘ulama’”
–Literally means those who are
knowledgeable in religion – many
–Customarily refers to any person
who are religious and
knowledgeable in religion one or
many
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30. • 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.
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31. • Lahm ()ﺍﻟﻟﺤﻢ = in the Quran it
refers also to fish but customarily
it refers to meat other than fish.
• Daabah ()ﺍﻟﺪﺍﺒﺔ – in Quran it refers
to all creatures including human
being. Customarily it refers to four
legged animals.
31
32. • 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.
32
33. • 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 33
34. –If he just set his foot in the house
without entering it then he will not
be liable for kaffarah.
34
35. –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?
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36. Actual (fi'li)
• Consists of commonly recurrent practices
which are accepted by the people.
–Eg: give and take sale (bay’ al-ta’ati) –
concluded without utterance of offer and
acceptance
–In case of dower
–Harta sepencarian
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37. –In case of betrothal ceremony
• Berpantun
• Sarung cincin – exchange of ring
• Exchange of gifts (Barang2 hantaran)
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38. • Verbal and actual custom are
further divided into two types –
general and special (al-’urf al-’am
and al-’urf al-khas)
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39. General 'Urf
• Prevails everywhere on which the
people agree regardless of the
passage of time.
–Example is bay’ al-ta’ati
–Fee imposed on entry to public
baths or parking space or public
toilet etc.
39
40. Special 'Urf
• Prevails in particular locality,
profession or trade – eg: KL stock
exchange
• Hanafi said that this kind of ‘urf
does not qualify the general
provisions of the nass. It will be
ignored when it contradicts the
nass. 40
41. • ‘urf is also categorised as sahih
(valid or approved) and fasid
(disapproved).
41
42. Relationship between urf and
sunnah, ijma' and ijtihad
• Urf and Sunnah
–General rule is ‘urf must not violate
nass including sunnah but if the
conflict between ‘urf and nass is not
absolute then custom is allowed to
act as limiting factor on the text.
–Examples – bay’ istisna’ and salam
42
43. –“The Prophet prohibited the sale of
non-existing objects but he
permitted salam.”
–The hadis is general in that it
applies to all varieties of sale in
which the object of sale is not
present at the time of contract.
43
44. –Salam was exceptionally permitted
as it was deemed to be of benefit to
the people.
–The rule applies the same to istisna’
but since istisna’ was commonly
practiced among all people of all
ages, the fuqaha’ have validated it
on grounds of general custom.
44
45. –Consequently the custom
concerning istisna’ is allowed to
operate as a limiting factor on the
textual ruling of the hadis in that the
hadis is qualified by the custom
concerning istisna’.
45
46. • ‘Urf and Ijma’
–They are similar but different.
–(i) ‘urf materialises by the
agreement of all or the dominant
majority of the people and its
existence is not affected by
disagreement of a few individuals
46
47. –Ijma’ requires the consensus of all
mujtahidun of the period or the
generation in which it materialises.
–(ii) ‘Urf does not depend on
agreement of mujtahidun but must
be accepted by the majority of
people including mujtahidun
47
48. –For ijma’ only mujtahidun can
decide on juridical matters not the
laymen
–(iii) the rules of ‘urf are changeable
and a custom may in course of time
give way to another custom or may
simply disappear with a change of
circumstances but not ijma’
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49. –Ijma’, once concluded precludes
fresh ijtihad on the same issue and
is not open to abrogation or
amendments.
–(iv) ‘Urf requires an element of
continuity – if it exists over a period
of time
–Ijma’ come into existence whenever
the mujtahidun reach unanimous
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