TOPIC 13 & 14

PRINCIPLE OF CUSTOM
PRINCIPLE OF CUSTOM
Meaning
Sources
Functions
Conditions for a valid
‘urf
 THE MAXIM

‫العادة المحكمة‬
“Custom is a basis of judgement”
 Introduction
 This is the fifth of the five leading Islamic legal maxims
where it affirms the significant position of custom in
Islamic law as an authorisation for some Shariah rulings.
It is widely applied, particularly in muamalat.

 Whenever a norm (adah) is established in a society, it

will become one of life necessitites.

 According to psychologists, repeating a certain action for

many times will make the nervous system and body parts
so familiar with it that performing it becomes necessary.
Our scholar said: Taking away people’s habit from them
will result in great difficulty.
 Introduction
 It is relevant because customs and the standard practices
of one people may differ from those of another people,
and even the customs of a particular people could change
over time.

 Thus, rules that take custom into consideration are

subject to change as the basis for the ruling changes.

 Such changes accomodate people’s need and help in

realizing the maslahah, which may differ from one time
and place to another.
 Introduction
 It should be noted that Islam recognizes customs as a
valid basis for legal reasoning as long as certain
conditions are completely met and the dictates of the
sacred texts are not violated.
 Meaning
 ‘Adah is a noun derived from the verb
‘aada/ya’uudu, which means ‘to return, to come
back. Adah is used to denote custom because a
custom is a practice that keeps coming back; i.e.
the people who practice it keep repeating it.
 A related term is ‘urf, a noun derived from the
verb ‘arafa/ya’rifu; ‘to know, recognize’.
 It also means custom because custom is a
standard practice that is widely or universally
recognized as fitting and proper in a given
society;
 Meaning
 Adah is more general than ‘urf because ‘urf is used
exclusively for the custom of an entire society or group
whereas adah is used both social custom and the personal
habit of an individual.

 Muhakkamah is the passive participle of the verb

hakkama/yuhakkimu: ‘to choose someone or something
as an arbitrator.

 It’s use in this maxim connotes the status of custom as a

reference for resolution of disputes.
 Meaning
 The overall meaning of the maxim is that a
dispute may be resolved by reference to custom,
whether general or specific, in the absence of a
specific Shariah provision as long as it does not
conflict with a text from the Quran and Sunnah.
 Sources
 Al-Quran
1. ‫ُخ ِذ اْلَع ْفَو َو ْأُم ْر ِباْلُع ْر ِف َو َأْع ِرْض َع ِن اْلَج اِهِلين‬

“Be tolerant and enjoin what is right (‘urf); pay no

intention to foolish people. (al-A’raf (9):199)

 The angle of argument from this verse is that the ‘urf

refers to those customs of the Arabs of that era that
were not opposed by Shariah texts.
 Sources
2. ‫ُيِتَّم‬ ‫َو ٱۡل َو ٲِلَد ٲُت ُيۡر ِض ۡع َن َأۡو َلٰـ َد ُهَّن َح ۡو َلۡي ِن َك اِم َلۡي ۖ‌ِن ِلَم ۡن َأَر اَد َأن‬
‌ۚ‫ٱلَّر َض اَع ۚ‌َة َو َع َلى ٱۡل َم ۡو ُلود َلُه ۥِر ۡز ُقُهَّن َو ِكۡس َو ُتُہَّن ِبٱۡل َم ۡع ُروِف‬
‫اَل ُتَك َّلُف َنۡف ٌس ِإاَّل ُو ۡس َعَها‬

“Mothers suckle their children for two whole years, if

they wish to complete term, and the father shall bear the
cost of their food and clothing in a fair manner. No one
should be burdened with more than they can bear.” (al-
Baqarah (2):233).
 Sources
- This verse defines the maintenance due to the
mother of a newborn child who is breastfeeding it. The
wording “in a fair manner” is a translation of bi al-ma’ruf.
Ma’ruf is derived from the same root as ‘urf and shares
with it the connotation of recognized and approved
behaviour.

- This means that, the amount of maintenance is to

be determined by custom, which clearly indicates that
custom is recognized by the Shariah.
 Sources
 Al- Hadith
1- ‫ يا رسول هللا ِإن أبا‬:‫عن عائشة َأن هند بنت ُع تبة قالت‬
‫ وليس يعطيني ما يكفيني وولدي إال ما‬،‫سفيان َر جٌل َش ِح يٌح‬
‫ ُخ ِذ ي ما يكفيكِ وولدِك‬: ‫َأَخ ذُت منُه وهو ال يعلم فقال‬
‫بالمعُروف‬

Aisyah related tht Hind bint ‘utbah said, “O Messenger of

Allah! Abu Sufyan is a miser and does not give me that is
sufficient for me and my children. Can I take of his
property without his kowledge?” The Prophet PBUH said,
“Take what is sufficient for you and your children, and the
amount should be reasonable (ma’ruf).
 Sources
2. Ibn Abbas reported that when Prophet Muhammad
arrived in Madinah, he found people used to pay in
advance the price for dates to be delivered within two or
three years. He said, “ ‫ ووزن‬،‫من أسلف في شيء ففي كيل معلوم‬
‫( معلوم إلى أجٍل معلوم‬Whoever pays in advance for later
delivery should pay it for a specified volume or specified
weight with a specified delivery date).

In this case, Allah’s Messenger PBUH approved the

customary practice of the people, but he corrected it by
adding parameters to prevent disputes arising from it.
 Sources
3. The statement of the companion, Abdullah Ibn Mas’ud:
‫ وما رأوا سيئا فهو‬،‫ما رأى المسلمون حسنا فهو عند هللا حسن‬
‫عند هللا سيٌئ‬
“ What the Muslims consider good is good in the sight of
Allah, and what the Muslim consider bad is bad in the sigh
of Allah.

- The four imams, Abu Hanifah, Malik, al-Shafi’e and

Ahmad all recognized the authority of custom in
determining certain Shariah rulings.
 Functions of ‘Urf
 Although the maxim is worded generally, the intent is more
specific; i.e. The purview of custom in providing parameters
for laws not entirely determined by the texts keeping laws up
to date as times change.

 The maxim functions in the following areas.

1. Interpreting unrestricted text texts (al-nusus mutlaqah) when
the linguistic meaning is not precisely determined. Al- Suyuti
quoted scholars as saying:
،‫ وال في اللغة‬،‫ وال ضابَط لُه فيه‬،‫إن كلَّ ما ورد بهِ الَش رُع مطلقا‬
‫ُيرَج ع فيه إلى العرف‬
“anything mentioned in a Shariah (text) without qualifications,
when there are no parameters for it in the Shariah or the
(Arabic)language, should be referred to custom.
 Functions of ‘Urf
2. Establishing Shariah rulings for issues that are not
explicitly mentioned in the Shariah texts.

 In fact, the Quran and Sunnah tend to provide general

rules and laws concerning all things. They do not cover all
details for all things, including their future
manifestations.

 Custom is one of the sources to be referred to for

establishing the Shariah rulings related to such matters.
 Functions of ‘Urf
 Mudharabah for example, jurists hold that this kind of
contract is not derived from any specific authentic legal
text. It is legimated by the Shariah simply because it was
widely practiced before Islam and the Companions of the
Prophet PBUH practiced it without objections being
raised to it.
 Functions of ‘Urf
3. Amending Shariah rulings that are based on
people’s standard practice. Whenever the custom
changes, the Shariah ruling should change
accordingly. Al-Qarafi stated that that,
“ To keep applying the Shariah rulings derived
from customs after the customs have changed
conflicts with consensus and is (a manifestation
of ) ignorance of the religion. In fact, any aspect of
the Shariah that follows customs change, to the
extent dictated by the evolving custom.”
 Categories of Custom
 Islamic jurists have developed and classified the
‘urf into three main categories that every
category consists of different types of ‘urf i.e.
according to general and particular, verbal and
practical, and lastly the validity of ‘urf (Shariah
based) i.e. valid and invalid ‘urf.
 1. The General Types of ‘Urf
 ‘Urf can be classified based on its generality of usage and
this can be divided into two categories i.e. general and
specific ‘urf.
A- The general ‘urf
• General ‘urf means things that majority of the people
around the globe practice it as ‘urf without ignoring the
distinguish in terms of places and time.
• This ‘urf widely spread among people all over the world.
• An example of this ‘urf is related to the needs (hajiyyat),
whereby almost people are in need for the certain things
for their life like clothing, shelters and etc. Therefore, the
services like istisna’ is become needed to fulfill the need
of the people all around the globe.
 1. The General Types of ‘Urf
• Indeed, istisna’ is a sale contract of non-existent items but
it was permitted because people knew of it and practiced
it before. This practice is just like al-salam, is an
exceptional case thus cannot be used as a basis for qiyas.
• The generality in this case can be time-related or place
related.
• Customs that are general in terms of time are the ones
that are widely spread throughout the years since during
the Prophet’s companions until today and also the ones
that are widely spread during a certain era.
• Likewise, customs that are general in terms of place are
the ones that are widely spread in all the places or being
practicesd in the whole country or most of it.
 1. The General Types of ‘Urf
B- The specific ‘urf
•Specific ‘urf refers to the ‘urf that is prevalent practiced by
the among group of people or in certain places.
•This specific ‘urf can affect the law and binding to the
people within the particular circumstances therein.
•Among the examples is dividing dowry into two categories
which are lump sum during the concluding the nikah and by
deferred payment to the bride.
•The custom among traders on what is considered as a
defect.
•The custom among traders of some countries in allowing
the price of a subject matter to be paid in instalments or
specific number of instalments.
 2. The Types of ‘Urf Based on Verbal and Practical
A- Verbal ‘urf is the common speech among the people that
comes into mutually agreed on the usage of its meaning of
words for the specific purposes instead of the exact
meaning of the literal word.
•another name for this type of ‘urf that is actual custom (al-
haqiqat al-‘urfiyyah) whereby the regularities of the usage
of word for certain meanings led it becomes ‘urf and
therefore there is no need to interpret it via minds or any
kinds of interpretations methods to analyze the meaning of
the word.
•Hence, the common practiced verb becomes more popular
than the original meaning of the word and make the exact
meaning becomes more obscured and usefulness for people
due to the irregular usage of the exact word in daily life.
2. The Types of ‘Urf Based on Verbal and Practical
• Al-Qarafi has discussed that actual custom prevails that
the literal meaning of the word when there is a
dissension on certain issues (al-‘urf yuqaddam ‘ala al
lughah ‘inda al ta’arud).

• Among the examples are as follows;

 If someone was asked to buy an animal or ‘dabbah’ -
and it is well known to them that the term ‘animal’ or
‘dabbah’ specifically refers to donkey, then the agent
cannot go and buy a horse or a mule, on the
presumption that ‘animal’ refers to animal that stands
on four legs.
2. The Types of ‘Urf Based on Verbal and Practical
 If a person was asked in Saudi Arabia to buy a car for five
thousands riyals with no furhter specifications on the
currency, then the agent has to buy using Saudi Riyals
because it is customary that Riyals refer to Saudi Riyals
in Saudi. Thus, the agent cannot buy using Qatari riyals,
for instance.
 In Kelantan, the word riyal is used to mean Ringgit, thus
simillar to the above case, the agent cannot buy using
Saudi Riyals.
 2. The Types of ‘Urf Based on Verbal and Practical
B. Practical ‘urf means the recurrent practices that are
common and rational to the people whether in their daily
life or in civil transactions
•For the recurrent practices that are common in daily life
encompass routine actions like eating, drinking, clothing
and etc. All of these practices only related to the individual
people without interfering others’ manners and rights.
•Otherwise, for the civil transactions, it will affect others
whereby wrongdoing in certain actions or rules may lead to
the legal disputes and this commonly related to the
contracts that are binding to the people such as in the
commercial transactions, inheritance and marriage.
 2. The Types of ‘Urf Based on Verbal and Practical
• The famous example has been laid down by the Islamic
jurists in the juristic writing of fiqh is related to the
transactions is the sale of offering and acceptance (bay
al-taati) that conclude the sale transaction without any
utterance of offer and acceptance among the contracting
parties. Furthermore, the case of inheritance whereby
‘harta sepencarian’ can be one of the part to get the
money from the process of inheritance.
 3. Valid and Invalid ‘Urf.
‘Urf is once again classified into what has been allowable or
prohibited according to Shariah point of view. Thus, this
category has been segregated into two sub category which
are valid ‘urf (al-‘urf al-sahih) and invalid (al-urf al-fasid)
‘urf.

A- Valid ‘urf is the ‘urf that is in agreement and compliance

with the Shariah principles
•Valid ‘urf is when the ‘urf preserves the human interest
and subsequently do not contribute to absolute harm to the
people.
•The case like provide present during engagement day and
giving dowry in cash or staggered.
 3. Valid and Invalid ‘Urf.
B- Invalid customs means ‘urf that contravenes to the
Shariah principles in which changing what is permitted by
the Lawgiver as halal to haram and vice versa
•This practice of ‘urf can lead to the corruption and hazard
to the humankind.
•The cases of permitting usury (riba) in activities of
commercial transactions among group of people in many
countries are the best example for this invalid ‘urf since it is
absolutely against the divine law (al-Quran)
•the layman that participate in the gambling such as casinos
or hen fighting and what happens nowadays in reality show
like ‘one in a millionaire’ that have characteristics of
gambling
 The Conditions for A Valid ‘Urf
1.Do not contravene to the divine texts
•‘urf has authoritativeness in the principles of Islamic law is
when the established ‘urf does not in clash with the texts of
Quran and Sunnah (naas) or ijma’.

•This ‘urf does not have any affect to influence any rulings
since the texts are the most powerful.

•For instance, ‘urf of taking alcoholic beverages and wine

that widespread among people nowadays is not acceptable
in Islam since it clearly contravenes to the absolute texts.
 The Conditions for A Valid ‘Urf
2. Prevalence to the mass people
• ‘Urf must be prevalent to mass people (Jami’) or practiced
by majority or large number of people or majority (al-
ghalabah) without any indifferences among each of them.

•Two legal maxims in which stated in the Majelle in article

41 and 42 that sounds “ customs is only given effect to,
when it is continuous or preponderant” and “ that is
esteemed preponderant which is commonly known and not
that which rarely happens” .
 The Conditions for A Valid ‘Urf
• ‘Urf of a few people could be recognized as a law as long
as it confines with the locality and at the same time it is
being authoritative principle only for the time it prevails
and territorial as to void this law give bad implications
to other countries that the ‘urf is not associated with.

3. In present in the stipulated time

• The ‘urf must be presence during the stipulated time
when it is in need and this similar means that the ‘urf is
already established before ,and then it smoothly
continue to prolong until the current times, whereas
the ‘urf that indicates based on the future is not
acceptable in consideration of dispensing rules
 The Conditions for A Valid ‘Urf
4. Do not contravene to the stipulated agreement

•The ‘urf must not contradict with the stipulation of agreement

in which it is not workable when there is stated specific
condition in the stipulated agreement whereby the ‘urf only
drives its function equivalence to an implied conditions and
this means that the ‘urf is only valid in the absence of explicit
conditions in the agreement.
 The Conditions for A Valid ‘Urf
• For instance, based on ‘urf, dowry will be giving in two
times whereby that is one time during the conclusion of
contract and the another one is latter than the former.
However, if there is stipulated agreement stated that the
money must be paid in cash during the conclusion of
agreement, therefore the rule of customs is not
functioning at all and the conditions is overrule the
customs.
 The Conditions for A Valid ‘Urf

# In a nutshell, the ‘urf can be a legally subsidiary

of Islamic law when it fulfills some
requirements needed. And this conditions can
be a filter as to ensure the process of dispensing
and formation hukm in Islamic law is tallied
with interest of the people.
 Application of the Maxim In Fiqh
• A person sold a good to another in Malaysia for deferred
payment of a thousand without specifying the currency.
On the settlement date, the buyer makes payment of one
thousand Malaysian Ringgits, but the seller insists that
he meant USD1000. In this case, the seller’s claim is
rejected because the custom of Malaysia is to pay in
ringgits, not dollars.
 Application of the Maxim In Fiqh
• The penalty for theft is applicable only if the stolen item
is taken from a place of safekeeping (hirz). What is
considered a place of safekeeping varies from one place
and time to another, and the hirz of one commodity may
vary from that of another. For example, modern money
is most often in an electronic form. A hacker can steal a
very large amount of money from a bank or
corporation’s computer without ever physically
entering the premises where the computer is located. In
this sace, the computer with its firewall is considered
the hirz of the electronic money.
 Application of the Maxim In
Fiqh
• The rights and duties of husbands and wives are
partialy determined by custom. For example, the
amount of household maintenance that a husband is
required to spend for his wife is determined by time,
place, social class, etc.

• Traditional way of offer and acceptance vs modern way

of offer and acceptance.
 Application of the Maxim In
Fiqh

•What people consider as the price (thaman) of

something is regarded as money. Imam Malik said,
“If the public were to accept leather as a medium of
exchange) and turn it into minted money, I would
detest (not allow) its sale for god and silver for
deferred payment. What he meant by that is that
the leather would no longer be treated as a normal
commodity; rather, the rules of money would apply
to it based on the prevalent practice.
Continued in the next
class
‫‪Branches of Custom’s Principle‬‬

‫‪‬‬ ‫المعروف عرفا كالمشروط شرطا‬

‫‪‬‬ ‫التعيين بالعرف كالتعيين بالنص‬
‫‪‬‬ ‫ال ينكر تغُّير األحكام بتغيُر األزمان‬
‫‪‬‬ ‫‪Applications‬‬
 ‫المعروف عرفا كالمشروط شرطا‬
A matter recognized by custom is like a contractual
stipulation
 Explanation
• The word ‘al-ma’ruf’ in this context refers to the well
known standard practice among people in their
transactions.

• The word ‘al-mashrut’ means something stipulated by one

or both contracting parties in their contractual agreement
to make the contract enforceable.

• The general meaning of the maxim is that any practice

that is prevalent and well recognized among the people in
transactions does not need to be specified or mentioned
in the contractual agreement; rather, such an action is
treated like a stipulated condition in the contract.
 Explanation
• For instance, it is understood in a given time and
place that the buyer of real estate bears the
expenses of transferring the title, he cannot
object to being billed for that by claiming that it
was not explicitly mentioned in the sale
agreement.
 Application of the maxim in
fiqh
• A father send his son to a craftsman to teach him a skill.
At the end of the month, a dispute arises between the
father and the craftsman; each demands remuneration
from the other. The craftsman requires the father to pay
him a fee in return for teaching his son while the father
asks for a fee in consideration of his son’s labor. This
case should be settled by referring to prevalent custom.
The one whose claim is backed by custom is entitled to
the fee.
 Application of the maxim in
fiqh
• A sale must have an offer and acceptance to be
valid. Some jurists stipulate that the offer and
acceptance must be verbal. Most jurists,
however, approved the validity of a sale by
physical exchange; the buyer puts the good he
wants down in front of the seller and hands him
the payment; the seller accepts the payment and
hands the good back to the buyer without a
word being exchanged between them. Similar to
the practice of the offer and acceptance in the
modern time that may be by fax, email, or any
other means that conveys that meaning.
 Application of the maxim in Islamic Finance
• The manager of an endownment fund (nazir al-waqf) is
entitled to get the fair remuneration (ujrat al-mithl) even
though the endower (waqif) did not stipulate any fee for him.
This is because it is well known that a manager cannot be
expected to take the responsibility for managing the waqf
property without any fee.

• The current practice of wadi’ah based saving accounts is that

Islamic banks may give hibah to the depositors at their
discretion to attract more clients to deposit their money in
Islamic banks. However, if this discretionary act becomes a
customary practice among Islamic banks, it is tantamount to a
contractual stipulation in the wadiah contract.
 Application of the maxim in
fiqh
• It is prohibited to sell something that one does
not posses. The classical fiqh view on possession
is that it should be physical posession. However,
if market custom accepts constructive
posession, the buyer can resell the commodity if
he has taken constructive possession of it.
 ‫التعيين بالعرف كالتعيين بالنص‬
“ A matter specified by custom is like a matter
specified by the divine text”
 Meaning
• Al-nass refers to the text of the Quran and
Sunnah of the Prophet, and as term of usul al-
fiqh refers to the word that denotes the divine
text whilst no other word denotes the meaning.
• This maxim means that, a ruling that is derived
from valid custom and collective practices of the
people would be the same as the ruling that is
derived from the explicit divine text. Hence, if
people have accepted a certain practice as a
customary practice in their trasactions (even if
it is done implicitly) then that practice binds the
transacting parties as a condition.
 Applications
• If someone is asked to purchase a piece of meat, bread,
or a dress then this wakalah contract is binding if the
agent buys a piece of meat or bread that people
normally buy/eat, or a dress that people normally
buy/wear. However, if the agent buys a type that people
do not usually buy then the agency contract is not
binding on the principal.

• The alimony that needs to be paid by a husband is up to

the amount which is customary in that society;
depending on the couple’s financial situation.
 Applications

• The power of attorney to sell in general shall be

considered as a sale with customary price.
Custom requires that the trustee keeps the trust
in a safe and secure place which is typical for the
trust item, even if one rents a shop in a garment
market it shall not be used for a blacksmith or
any job that requires utilisation of fire and so
on; instead the occupation of the lessess should
follow customary practices in the market.
End of This Principle