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Monday, January 4, 2010

SECONDARY SOURCES OF SHARIAH: ‘URUF OR CUSTOMS

ABSTRACT

‘Uruf or custom in summary is the matter on which a community of people agrees in the course of their daily life. Custom is also a common usage to refer to specific actions that are repeatedly performed by individuals and communities. Maliki fiqh and Hanafi fiqh makes use of custom and considers it a legal principle in respect of matters about which there is no definitive actions. Apparently, Maliki fiqh has an even deeper respect for ‘Urf because Malikis put public interest and general benefit as the foundation in the fiqh study to come with the decisions. Malikis even abandon analogy when customs opposes it. The Malikis claims that ‘uruf specifies the general and qualifies the unqualified. On the other hand, Hanafis claim that ‘uruf makes the general specific, qualifies the unqualified, Similar to Malikis, Hanafis are also put custom is put ahead of anology. Shafi’ites takes custom into consideration when there is no text. Because people are subject to it and do it by way of familiarity and habit, thus, the said custom is acted on when there is nothing in the custom contrary to a text or is not suggested by it. This project paper is an attempt to explain the ‘Uruf in details.                   



Objectives of the research:






  • To be able to explain the validity of ‘Uruf as one of the sources of Ahkam.
  • To be able to explain rationales behind the applications of ‘Uruf by prominent Imams from Sunni School of Laws.
  • To outlines of why certain School of Laws reject ‘Uruf as the valid sources.


    Key terms of the research

    1. Shariah  2. Fiqh  3. Usul al-Fiqh  4. ‘Uruf Qawli  5. ‘Uruf Fi’li  6. Ijtihad



            
    1.0              Introduction

    ‘Uruf literally means ‘that which is know’. Technically, ‘uruf is defined as ‘recurring practices which are acceptable to people of sound nature’. ‘Uruf or custom is a matter on which a community of people agree in the course of their daily life, a common usage of actions which is repeatedly performed by individuals and communities. It is the collective practice of a large number of people that is normally denoted as ‘uruf. ‘Uruf is not referring to personal habits of individual capacity. The habits of minority will not fall under ‘uruf category. Malikis, Hanafis and Shafi’ites make use of ‘uruf and considers it a legal principle when there is no absolute binding text (nas). Maliki fiqh put deep emphasis on the application of ‘uruf because public interest and general benefit are the foundation of Maliki fiqh in coming with legal rulings. The Malikis claims that ‘uruf specifies the general and qualifies the unqualified. Malikis even abandon analogy when customs opposes it. On the other hand, Hanafis claim that ‘uruf makes the general specific, qualifies the unqualified, Similar to Malikis, Hanafis are also put custom is put ahead of analogy. Shafi’ites takes custom into consideration when there is no text. Because people are subject to it and do it by way of familiarity and habit, thus, the said custom is acted on when there is nothing in the custom contrary to a text or is not suggested by it. In summary, in order for the ‘Uruf to constitute a valid basis for legal decision, it must be the consistent practice of a group of people.

    In order to understand how the jurists arrive to Fiqh rulings deduced from the secondary source of Shariah; ‘uruf or customs, Section 2 of this paper will provide a general overview of what is Fiqh, Shariah and Usul al-Fiqh which will be succinctly explained in order to give a better general grasp of the intended topic. Subsequently, on the Section 3, the paper will provide explanations on what are the primary sources and secondary sources of Islamic law in the Islamic jurisprudence. On Section 4, the validity of ‘Uruf as sources of Islamic rulings together with the evidences, and the opinion of selective schools which opposed to uphold ‘Uruf as one of the sources will be discussed effectively. The last section will record the conclusion from the finding of the research.


    2.0              Fiqh: The knowledge of the Islamic ruling of the conduct of the people


    Imam Abu Hanifah defined Fiqh as ‘the knowledge of what is for man’s self and what is against man’s self’ (ma’rifat al-nafs ma laha wa ma ‘alyha) and this general definition of Fiqh includes all knowledge of Islam. On the other hand, Imam Al-Ghazali confined the word Fiqh to the science of the rules of law. Literally, the term Fiqh is used to mean understanding or al-fahm. Technically, Fiqh is the name given to the whole science of jurisprudence (i.e. Islamic Jurisprudence) because it implies the exercise of intelligence in deciding point of law in the absent of a binding text (nas) of the Quran and Sunnah (the tradition of the Prophet pbuh). It is the knowledge of the Islamic ruling of the conduct of the people.

    Fiqh covers various aspects of human life. It concerns with the governing relationship between man and his Creature and man and man. One important point that should be observed about Fiqh is its flexibility. There are two kinds of Fiqh rulings according to the changeable and fixed rulings. The fixed Fiqh rulings are the rulings that are deduced from the decisive evidence from the Quran and Sunnah. This kind of rulings cannot be changed according to the change of time and place or circumstances such as rulings related to Ibadah e.g. prayer, fasting, punishment for adulterers etc. However, the implementation of such rulings can be deferred if the situation does not permit for it to be implemented or if the implementation of such rulings might result in defying the objectives of Shariah. The changeable rulings are Fiqh rulings that are deduced by the scholars from their understanding and interpretations of Holy Quran and Sunnah and from other various sources of Islamic law such as juristic preference (al-istihsan), consideration of public interest (masalih al-mursalah), presumption of continuity (al-istishab), customs (‘uruf) and others. This kind of rulings utilise the power of reasoning of the jurists in certain Fiqhi issues. Example of changeable Fiqh rulings are the rulings related to Muamalah. Rulings under this category are flexible and can be changed according to the changes of time, place and circumstances.

                2.1       The distinction between Shariah and Fiqh

    Fiqh is an important component of Shariah (Islamic doctrine of duties, a code of obligations but not limited to Islamic law). The Shariah is based on revelations in which the knowledge is only obtained from the Holy Quran or Sunnah (the tradition of the Prophet pbuh).  The Shariah is the body of revealed injunctions found both in the Quran and Sunnah and it includes the following three main components: Al-ahkam al-I’tiqadiyyah or aqidah (the sanctions relating to beliefs), Al-ahkam al-akhlaqiyyah (the sanctions relating to moral and ethics), and Al-ahkam al-‘amaliyyah (sanctions relating to the sayings and doings of the individuals and his relations with others) which is also called Fiqh. Therefore, Fiqh is a subset, a component to the respective Shariah. Unlike Shariah, in Fiqh, the power of reasoning is stressed and deductions based upon knowledge are continuously referred to with approval.

    In summary, Shariah is the whole divine law and a value as given by Allah and Fiqh is the laws, or rather opinion on laws, extracted by jurists from the sources of Islamic law. Thus, Fiqh contains human involvement which is required as juristic interpretation comes in. The terminology of ‘Islamic law’ as used by many scholars often refers to this meaning of Fiqh. However, it must be noted that the demarcation line between Shariah and Fiqh is not clearly drawn, thus the two terms are being use interchangeably.

                2.2       Fiqh and usul al-Fiqh

    Fiqh and usul al-Fiqh is two different disciplines. Fiqh is actually the result of the jurists’ interpretation from the source of law (Asl). This is where the distinctive Fiqh is takes place. It explains the methods by which the rules of Fiqh are deduced from their sources.

    The scholars of Islamic law divide the science of Fiqh into two categories which is; (i) the usul, and (ii) the furu’. The usul literally means the roots or foundations. The science of usul deals with methods by which the rules of Fiqh are deduced from their sources. Usul al-Fiqh or the origins of Islamic law, indicates by which the rules of Fiqh are deduced from their sources. On the other hand, the science of furu’ deals with particular injunctions or ahkam, which are the results of the science of usul. Therefore, Fiqh is the end product of usul al-Fiqh. The Fiqh is the furu’. Therefore, one must appreciate the clear distinction between the principles in the first division and the rules deduced from their application.

    The rules of Fiqh derived from the Quran and Sunnah and other sources which are collectively known as usul al-Fiqh. The Holy Quran and Sunnah contain very little methodology, but they provide the indications and general principles from which rules of Fiqh can be deduced. The methodology of usul al-Fiqh refers to ijtihad (methods of reasoning) such as qiyas (analogy), istihsan (juristic preference), istislah (public interest), istishab (presumption of continuity), ‘Uruf, ‘amaal ahl al-Madinah (practice of al-madinah people) and sad al-dharai (blocking means to evil). Thus, the Fiqh is the end product of usul al-Fiqh. The importance of usul al-Fiqh is irrefutable as it examines the sources of Islamic law, the methods to be used to deduce the rulings and determine the type of person who is qualified to deduce these laws. Usul al-Fiqh in this sense provides standard criteria for the correct deduction of the rules of Fiqh from the sources of Shariah. The principle objective of usul al-Fiqh is to regulate ijtihad and to guide the jurists in his effort at deducing the law from its sources. The need for this become prominent when unqualified persons attempted to carry out ijtihad which will lead to the risk of error and confusion in the development of Shariah and become source of anxiety to the ulema and ummah.


    3.0       Primary and secondary sources of Shariah

    One of the important constituents in Islamic law is the sources that were utilised in order to deduce rulings. Jurists of Islamic law have classified the sources of Islamic law into various categories including according to the origins. The classification of primary and secondary sources of law in Islamic jurisprudence is utmost important because it will determine from which the Ahkam (rules) of Allah are discovered, in which the dalil (guide) or source of Shariah will give weight. The Holy Quran and the Sunnah are the primary sources of Islamic laws. However, some other sources are agreed upon by the majority of the schools to belong within the primary sources of Islamic law are the Ijma’ (consensus) and Qiyas (analogy).

    In the Islamic legal system where hierarchy and order of priority of sources are carefully maintained, the Holy Quran enjoys the highest position as the most primary source in the Islamic Shariah from which Islamic legal rules are derived, and through which the purposes of Shariah are to be achieved. The Quran is assigned with divine functions being the words of God, to serve as a source of God-imparted knowledge and fundamental guidance for men. The Holy Quran and Sunnah are considered as the sources originated from the text of revelation which is called al-nusus and other sources based on the power of reasoning are called non-textual sources or al-ray. Majority of the jurists from majority schools are in agreement in classifying the Holy Quran, Sunnah, Ijma (consensus) and Qiyas (analogy) as the primary sources of Shariah. Indeed, no scholars have challenged the authority and advantage of these four sources over other subordinate sources.

    The second source of Islamic law is the Sunnah and there is no dispute among scholars with regards to the position of the Sunnah as the second source of Islamic law after al-Quran. The authority of Sunnah comes from the following verse whereby Allah clarified the fact that whatever originated from the Prophet (pbuh) does not come out of his own desire, but it is an inspiration from Allah. This directly indicates the role of Sunnah as the type of revelation from Allah to His prophet (pbuh);

    ‘Nor does he say (ought) of his own desire. It is no less than inspiration sent down to him’  
    (Al-Najm, 3-4)

    The third source of Islamic law is ijma’ or consensus of opinions. Unlike the Quran and the Sunnah, ijma’ does not directly partake in the divine revelation. As a principle and proof of Islamic law, ijma’ is a rational proof and it is also a binding proof. Technically, ijma’ is defined as the unanimous agreement of the mujtahidun (qualified scholars in Islamic law) of Muslim community of any period following the demise of Prophet Muhammad (pbuh). However, the modern scholar Abu Zahrah has narrowed this definition of ijma’ to confine it to Shariah (legal matters only and this has specified the role of ijma’ to be one of the sources of deducing rulings in Islam. The definition clearly specified that ijma’ can only occur after the demise of the Prophet (pbuh) as he was the highest authority of Islamic law during the particular period. Ijma’ has played a significant role in the development of Islamic law during the period of the companions and in fact, the existing body of Fiqh is the product of a long process of ijtihad and ijma’. Scholars have regulated the process of ijma’ by placing certain requirements in order for ijma’ to be valid such as ijma’ must be produced from the agreements of qualified scholars or mujtahidun who fulfil certain conditions laid down by the scholars to exercise ijtihad. Consensus will never exist unless there is a plurality of concurrent opinions. Some of the conditions that lend to the validity of ijma’ is that the agreement or consensus that must take place only among the mujtahids, that is only by those who have attained the status of ijtihad. In addition to that, the agreement must be unanimous among all of the mujtahids.

    The fourth principle source of Islamic law as agreed by scholars to be a rational tool for deducing the rulings of Fiqh is the Qiyas (analogical reasoning). Recourse to qiyas would only be done when the solution of a new case cannot be found in the Holy Quran, the Sunnah or a definite ijma’. Analogical deduction of qiyas put emphasis on the identification of a common cause between two cases. The process of identifying the effective cause of ten involves intellectual exertion on the part of the jurist.  The jurists involve in the process recourse not only to the semantics of a given text but also to his understanding of the general objectives of Islamic law.


    4.0       ‘Uruf and its components

    The other category is the secondary sources of Islamic law in which the scholars differ in utilising these sources as a basis in deducing the rulings of Islamic law. This is because some scholars considered them as a source whilst some decline to utilise them in deducing the rulings of Fiqh. The secondary sources of Shariah are the qiyas (analogy), istihsan (juristic preference), istislah (public interest), istishab (presumption of continuity), ‘uruf, ‘amaal ahl al-Madinah (practice of al-madinah people) and sad al-dharai (blocking means to evil). As mentioned above, these sources are the products ijtihad, the same method of deductions that use the same principle as of qiyas. When the mujtahid exercise his ijtihad, the material sources used during this legal reasoning are the Quran, Sunnah and ijma’. However, the rational secondary sources provide the means of extension for the law stated in these primary sources. There are a few other secondary sources of Islamic law that depend upon transmission (naql) and not on the methods of reasoning for example, the companion’s opinion (Qawl al-Sahabi). From the jurists’ perspectives, a companion is someone who saw the Prophet (pbuh) and associated with him for some time so that he could understand something of the ways of the Shariah from him. After the death of the Prophet (pbuh), it was the companions who involve in interpreting the law and developed it. They undertook the ijtihad, issued rulings, settled case and became a source of guidance.

    As mentioned above, ‘uruf can be regards as the sources in deriving Islamic rulings. Malikis, Hanafis and Shafi’ites make use of ‘uruf and considers it a legal principle when there is no absolute binding text (nas). Maliki fiqh put deep emphasis on the application of ‘uruf because public interest and general benefit are the foundation of Maliqi fiqh in coming with legal rulings. Many judgements are based on ‘Urf because in many cases it coincides with public interest and public interest is indisputably a fundamental principle in Maliki School of law. Moreover, customs necessarily entails people’s familiarity with a matter, and so any judgement based on it will receive general acceptance whereas divergence from it will be liable to cause distress, which is disliked in the judgement of Islam because Allah Almighty has not imposed any hardship on people in His religion. Allah Almighty prescribes what normal people deem proper and accustomed to, not what they dislike and hate. This is because a good custom, which is not contradict to Islamic religion and respected by people, will draws people together in a close bonding relationships. Such custom connected the people’s traditions and social transactions whereas opposition to it will destroy the cohesion and bring about disunity. However, not all ‘uruf will be uphold as the laws. The practice of individual is not an ‘Uruf so to speak. It is a personal habit. Moreover, On the contrary, the school of Zahiri and Jafaari rejects ‘Uruf as sources of Islamic rulings.

    The customs practice which devoid benefits and associate with disadvantages are not considered as legal ‘Uruf. ‘Uruf must be acceptable and reasonable. ‘Uruf which does not contravene the principle of Shariah is valid and authoritative; it must be observed and upheld by a court of law. In this case, it is what Shariah considers to be good, not what human or the prevalent practice considers being good. Thus, the process of approval prior to acceptance is necessary. Shafi’I jurists, al-Suyuti in his well-known work, al-Ashbah wa Al-Nazair, recorded a legal maxim which goes as follows; ‘What is proven by ‘Uruf is like that which is proven by a Shar’I proof’. The similar maxim is also recorded by Hanafi jurist al-Saqrakhsi, and was sunsequently adopted in the Ottoman Majallah which provides that ‘Uruf, whether general or specific, is enforceable and constitutes a basis of judicial decisions. Generally, ulema have generally accepted ‘Uruf as a valid criterion for purposes of interpreting the Quran. In addition, the rules of fiqh which are based in juristic opinion (ra’y) or in speculative analogy and ijtihad have often been formulated in the light of prevailing custom. Thus, it is therefore permissible to depart from them if the ‘Uruf on which they were founded changes in the course of time.

                4.1       Types of ‘Uruf

    In general, ‘Uruf is normally classified based on the division of usage and practice; (i) ‘Uruf qawli (usage –verbal) and, (ii) ‘Uruf  fi’li (practice-amali).

    ‘Uruf Qawli

    This type of ‘Uruf can be analysed into 3 groups. The first is; the meaning of terms during the period of the Prophet (pbuh). This is through the verbal usage during the time of Prophet (pbuh). The meanings assigned to words at that period are used to understand the true intention of Lawgiver.

    The second type of ‘Uruf Qawli is; technical terms of the law (‘Uruf Shar’i). The verbal usage is normally employed by jurists to denote the technical sense and this technical meaning is usually different from its literal meaning.

    The third type is; usage in a local area for purpose of transactions. For countries other than Arab countries, obviously the mode of communications is not in Arabic. Thus, Islamic law recognizes the meaning in such usage but only if it conforms to the forms prescribed by the law, that is, if such use of word achieves the same purpose as the one prescribed. If it is not, then, Islamic law will declare it as fasid (invalid).


                ‘Uruf Fi’li

    This type of ‘Uruf can be analysed into two groups. First is; the practice prevalent during the period of the Prophet (pbuh). These practices were either approved by the Prophet (pbuh) or rejected. As such, it becomes part of Sunnah. The source of law was no longer custom, but, a Sunnah.

    The second type of practice is; the practices during the later periods. In this case, each customs will be subjected to careful examinations by the jurists. In instance, no practice could automatically be approved just because it was a long standing custom. The jurists will justified these customs in the light of Islamic laws or rejected them in he light of the same principles.

                4.2       Conditions of valid ‘Uruf

    For ‘Uruf to be valid, in addition for being reasonable and acceptable to people of sound nature, it must fulfill the following requirements;

    1.                  Uruf must represent a common and recurrent phenomenon. This means that the ‘Uruf must be practiced by fairly large number of people and frequently in their daily life. As mentioned before, the practice by only few individuals will not be accepted as an authoritative customs. For example, when a person buys a car, the question as to what is to be included from the purchase is largely determined by customs.

    2.                  The custom must be in existence at the time the transaction is concluded. This means only the customs that is prevalent at the time of the contracts or transactions concluded will be uphold as the valid customs. This con dition is particularly relevant to the interpretation of documents, which are to be understood in the light of the custom that prevailed at the time they are written.

    3.                  The Custom must not contravene the clear stipulation of an agreement. The recourse to the custom is only valid in the absence of an agreement. This is because, naturally, contractual agreements are stronger than custom, thus, should there arise a conflict between them, the former will be uphold. For custom is only to be invoked when no clear text can be found to determine the terms of a particular dispute. For custom is only to be invoked when no clear text can be found to determine the terms of a particular dispute.

    4.                  The custom must not violate the nass, that is, the definitive principle of the law. In cases of absolute conflict, the customs will have no effect because texts override customs.


    5.0       Conclusion and finding

    In the Islamic legal system where hierarchy and order of priority of sources are carefully maintained, the Quran has enjoyed and continues to enjoy the highest position from which the Islamic laws are extracted and construed in the light of the purposes of the Shariah itself. As we can see from above, though custom may provide the raw material to be considered by the jurist, no practice or custom can automatically be accepted as law. It must be thoroughly filtered and Islamised before it can be accepted.


    References:

    Imran Ahsan Khan Nyazee (2000), Islamic Jurisprudence, Islamabad, The International Institute of Islamic Thought and Islamic Research Institute.

    Mohammad Hashim Kamali (1991), Principles of Islamic Jurisprudence, UK, Islamic Text Society of Cambridge.

    Wahba Al Zuhaili (2003), Financial transaction in Islamic jurisprudence, Beirut: Dar al-Fikr al-Mouaser, First Edition, 

    1 comment:

    1. Assalaamu'alaikum, would you permit me to copy this article.i need it, sir. Thanks,

      wassalaamu'alaikum,
      Best Regard
      Najib

      ReplyDelete