Abstract
Urf, or customary practice, represents an essential secondary source of Islamic law that allows jurists to contextualize and apply Shariah in accordance with societal norms. This paper explores the concept of Urf, its scriptural basis in the Qur’an and Sunnah, its use in Islamic jurisprudence, and the conditions under which it is validated. Emphasis is placed on practical examples, such as Bayʿ al-Salām, to demonstrate the integration of customary practice with legal principles.
Introduction
Islamic jurisprudence (Fiqh) derives its primary legal authority from the Qur’an and Sunnah. However, the dynamic nature of human society necessitates recognition of customs that are widely accepted and practiced. ʿUrf (عرف) refers to such customary practices, defined as the prevalent habits or norms of a society that are familiar and recognized by its members. Classical jurists have recognized ʿUrf as a source of law in areas where explicit textual guidance is absent, provided it does not contradict the Shariah.
Definition and Concept of ʿUrf
Linguistically, ʿUrf stems from the Arabic root ʿ-r-f, meaning “to know” or “to recognize.” Technically in Fiqh, ʿUrf refers to customary practices that carry social recognition and can influence legal rulings. Imam Al-Qarafi defines it as:
“That which is prevalent among people and is known as custom.”
ʿUrf serves as a mechanism for jurists to adapt Islamic law to social realities without contravening divine injunctions, ensuring Shariah remains relevant across cultures and time periods.
Scriptural Basis of ʿUrf
Qur’anic Evidence
Several Qur’anic verses indicate the recognition of customary practices in social life:
- Surah Al-Baqarah 2:233 – Regarding breastfeeding:
“Mothers may breastfeed their children two complete years for whoever wishes to complete the nursing. Upon the father is their provision and clothing according to what is acceptable (maʿrūf).”
- The term “maʿrūf” (known, customary, or good) indicates what is socially recognized or customary.
- Scholars argue that this shows customary practice can guide obligations in social and contractual matters.
- Surah Al-Baqarah 2:229 – Regarding divorce and waiting periods (ʿIddah):
“Divorce is twice. Then either retain [the wife] in a customary manner (maʿrūf) or release her with kindness.”
- Here again, “maʿrūf” implies that the treatment should follow customary norms of fairness and decency, showing the law incorporates societal practices.
- Surah An-Nisa 4:58 – Justice and social norms:
“Allah commands you to render trusts to whom they are due and when you judge between people to judge with justice. Excellent is that which Allah instructs you. Indeed, Allah is ever Hearing and Seeing.”
- Scholars interpret this as allowing customary measures of fairness in judgments, especially where Shariah is silent.
Surah An-Nisa 4:19 – Living in accordance with customs:
“And live with them in a good and proper manner according to the custom.”
Sunnah Evidence
The Prophet Muhammad (peace be upon him) allowed Bayʿ al-Salām (forward sale) in Madinah, and his allowance was based on customary practice and necessity, with specific conditions to ensure fairness and avoid exploitation. This is an important example of how ʿUrf and social practices influence Islamic contracts. Let’s go through it carefully.
قَدِمَ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ الْمَدِينَةَ وَالنَّاسُ يُسْلِفُونَ فِي الثَّمَرِ الْعَامَ وَالْعَامَيْنِ، أَوْ قَالَ: عَامَيْنِ أَوْ ثَلَاثَةً، شَكَّ إِسْمَاعِيلُ، فَقَالَ:” مَنْ سَلَّفَ فِي تَمْرٍ، فَلْيُسْلِفْ فِي كَيْلٍ مَعْلُومٍ وَوَزْنٍ مَعْلُومٍ”.
“The Messenger of Allah (peace be upon him) arrived in Madinah while people were giving advance payment (credit sales) for dates for the coming year or two, or he said: for two or three years. Isma’il (the narrator) expressed doubt and said: ‘Whoever gives an advance for dates should do so for a specified measure and a known weight.’”
(Sahih al-Bukhari: H#2239, Sahih Muslim: H#4119)
- Forward sales in Madinah (Bayʿ al-Salām) were allowed, demonstrating flexibility and adaptation to societal needs.
Significance
- This is a classic example of ʿUrf influencing Fiqh:
- The Prophet (peace be upon him) recognized the customary economic practice of forward sales in Madinah.
- He legalized it with conditions to align it with Shariah principles.
- Scholars cite this as an example of Maslahah (public interest) guiding the application of law.
Scholarly Commentary
Imam Ali ibn Sulayman al-Mardawi al-Hanbali said:
أَن الْعَادة محكمَة، أَي: مَعْمُول بهَا شرعا
“That custom is authoritative, meaning: it is recognized and applied legally in Shariah.”
(Al-Tahbeer: vol.8, p. 3851)
He said further:
Allah Almighty says: “Take forgiveness and enjoin what is right (al-ʿurf)” [Al-A‘raf 7:199].
Ibn al-Sam‘ani said: “What is meant is that which people know and recognize among themselves.”
Ibn ʿAtiyya said: “Its meaning is: everything that the people naturally recognize and which is not rejected by the Shariah.”
Ibn Zafar in Al-Yanbu‘ said: “ʿUrf is that which the intelligent recognize as good and which the Shariah has approved.”
(Al-Tahbeer: vol.8, p. 3852)
He goes further:
“And everything in which the word al-maʿrūf is repeatedly mentioned in the Qur’an, such as: ‘And live with them in a good and proper manner in accordance with custom’ [An-Nisa 4:19], refers to what people mutually recognize as proper behavior.
Among these is also Allah’s statement: ‘O you who have believed, let those whom your right hands possess ask your permission…’ [An-Nur 24:58]. The command to seek permission at the times when it was customary to relieve oneself and remove garments shows that the legal ruling was based on what people were accustomed to.”
(Al-Tahbeer: vol.8, p. 3853)
Al-Mardawi continues:
The translation of the passage is:
“Among them is the saying of the Prophet (peace be upon him):
‘Whoever does an action that is not commanded by us, it is rejected.’ Reported by Muslim with this wording. This indicates that what Muslims commonly practice is taken into consideration, either from the perspective of Shariah or from the perspective of established custom, as reflected in his statement: ‘not commanded by us.’
Among them is also the hadith:
‘The measure (mikyāl) is according to the people of Madinah, and the weight (wazn) is according to the people of Makkah,’ reported by Abu Dawood and An-Nasa’i, and its chain of narration is authentic.
This is because the people of Madinah, being an agricultural society, had their customary measures recognized in determining volume (mikyāl), while the people of Makkah, being traders, had their customary weights recognized. The meaning is that such customs are taken into account for matters regulated by Shariah, such as the calculation of zakat, the measure of blood-money (diyah), zakat al-fitr, expiations (kaffarat), forward sales (salam), riba (usury), and other similar matters.”
This passage illustrates how custom (ʿUrf) is integrated into legal rulings, especially in quantifiable matters, when it aligns with Shariah principles.
(Al-Tahbeer: vol.8, p. 3853)
Imam Al-Mardawi concludes:
The translation of the passage is:
“Every action has a regulator upon which its legal ruling is based, and some actions have no regulator in Shariah or in language—for example: reviving dead land, protective measures against theft, eating from a friend’s house, and acts such as receiving, depositing, giving, gifting, or taking by force, as well as proper conduct in cohabitation, and the usufruct of a leased property.
Among these also is resorting to custom (ʿUrf) in specifying an object, an act, or a measure, which the wording of a text relies upon. Examples include expressions in oaths, endowments (awqaf), wills, reports, delegations, the specification of dinars, dirhams, sa‘, madd, wusq, qillah, or awqiyah, and the general mention of money, following the prevalent understanding. Similarly, the validity of transactions is based on what people commonly recognize as a sale. This is a frequent principle that cannot be fully enumerated.”
(Al-Tahbeer: vol.8, p. 3857)
This passage emphasizes that custom (ʿUrf) and common understanding serve as implicit regulators in Shariah for actions and measures, especially where explicit textual definitions are absent.
Conditions for Validating ʿUrf
For ʿUrf to be considered valid in Islamic law, it must meet certain conditions:
- Consistency with Shariah
- The custom must not contradict an explicit ruling in the Qur’an or Sunnah.
- Example: A society may have a custom of marriage practices; it is valid only if it doesn’t violate Islamic marriage conditions.
- Widespread and Established
- It must be commonly recognized and practiced by a group of people. A rare or isolated habit does not count as ʿUrf.
- Rationality and Public Benefit (Maslahah)
- The custom should be reasonable and socially beneficial. Practices that are harmful or oppressive are invalid, even if widespread.
- Not Contrary to Public Interest (Maqasid al-Shariah)
- Customs that undermine justice, morality, or human welfare cannot be used as a basis for legal rulings.
In short:
- ʿUrf is the recognized custom of a community.
- As a source of law, it helps jurists apply Shariah practically to real-life situations.
- Validity of ʿUrf depends on: consistency with Shariah, being widespread, rational, beneficial, and not harmful.
In Sunni Islamic jurisprudence, all four major schools—Hanafi, Maliki, Shafi‘i, and Hanbali—recognize ʿUrf (custom) as a valid source of law, particularly in cases where there is no explicit textual injunction in the Qur’an or Sunnah.
1. Hanafi School
- The Hanafi jurists give significant weight to ʿUrf, often using it to determine contractual practices, market transactions, and measures.
- Principle: Al-ʿAdah muhakkamah ma lam takun muḍaddah bil-Shari’ah — custom is authoritative unless explicitly opposed by Shariah.
2. Maliki School
- Malikis also incorporate ʿUrf, especially in matters of social and commercial transactions.
- The practice of the people of Madinah is particularly emphasized as a model of ʿUrf, since the Malikis value the local traditions established during the Prophet’s residence there.
3. Shafi‘i School
- Shafi‘i jurists accept ʿUrf to clarify ambiguous texts or facilitate social dealings, provided it does not contradict explicit Shariah provisions.
- Custom is often used in matters of measurement, trade, and daily conduct.
4. Hanbali School
- Hanbalis recognize ʿUrf primarily in commercial transactions, contracts, and customary obligations, ensuring that societal practices are legally respected if they align with Shariah principles.
Key Points Across All Schools
- ʿUrf is valid only when it does not contradict the Qur’an, Sunnah, or consensus (Ijma‘).
- It is most commonly applied in:
- Trade and commercial practices
- Measurement and weights
- Marriage and social customs
- Contracts and obligations
- It facilitates practicality and social recognition in the application of Islamic law.
In short:
All four Sunni schools agree to consider ʿUrf as a secondary source of law when explicit textual guidance is absent, emphasizing customary practice as a legitimate basis for rulings within the framework of Shariah.
Application of ʿUrf in Fiqh
1. Business Transactions
- Customary trade practices, such as issuing receipts or bargaining, are legally recognized if consistent with Shariah.
- Bayʿ al-Salām: Forward sale of goods was permitted in Madinah with conditions:
- Full payment upfront
- Clearly specified quantity and quality
- Defined delivery time
- Restricted to measurable goods
This exemplifies how ʿUrf validates socially necessary practices while aligning them with Shariah principles.
2. Social Norms and Contracts
- Marriage customs, gift-giving, or local measures of weight and currency may be considered valid under ʿUrf if they do not violate Islamic requirements.
3. Interpretation of Ambiguous Texts
- When Qur’anic or Hadith terms are general, ʿUrf assists in clarifying meanings in contemporary or local contexts.
Conclusion
ʿUrf serves as a critical tool in Islamic jurisprudence, bridging the gap between divine law and societal practice. Its scriptural basis in the Qur’an and Sunnah, coupled with conditions for its validity, ensures that customs can inform legal rulings without violating Islamic principles. Cases like Bayʿ al-Salām in Madinah illustrate how the Prophet Muhammad (PBUH) integrated local practice into the legal framework, emphasizing the balance between social needs and divine guidance.
References
- Al-Qarafi, Al-Furuq, Cairo: Dar al-Fikr, 1990.
- Ibn Qudamah, Al-Mughni, Beirut: Dar al-Kutub al-‘Ilmiyya, 1997.
- Al-Shafi‘i, Al-Risala, Cairo: Dar al-Ma‘arif, 1972.
- Ibn ‘Abbas, Hadith on trade practices, Sahih al-Bukhari.
- Qur’an, Surah Al-Baqarah 2:233, 2:229; Surah An-Nisa 4:58.
- Jabir ibn Abdullah, narration on Bayʿ al-Salām, Sunan Abu Dawood.
- Ali ibn Sulayman al-Mardawi, Al-Tamheed, Riyadh: Maktabah al-Rasheed, 1421 AH
