Definition • Literally means to know • Technically: “What is common or

customary among the people and to which they have habituated, whether it is a
word or deed which is not contrary to the Qur’an and Sunnah” The different of
custom with usage (‘adat), and ijma’ • ‘Urf differs from usage, since usage can be
from individual and a group of people. • Usage from individual is a personal
practice (‘adah fardiyyah) and from a group of people is a collective practice
(‘adah jama’iyyah). But ‘urf is only a collective practice. • It also differs from
ijma’, as ijma’ is specifically the making of mutahid while ‘urf is the making of
community at large either mujtahid or public. Classification of ‘urf 1.Verbal and
Practical ‘Urf - Verbal ‘urf is the meanings of the words usually intended by
people when they speak those word absolutely. e.g. If a man swears that “he will
not put his leg at someone house” , he will not break the oath if he go to that
house then stand outside it and just extend his leg inside it. -Practical ‘urf is the
actions and dispositions to which the people are accustomed and with which they
are familiar. e.g. -Sale by give and take in respect of some goods. -Amount of
dowry. Classification of ‘urf continue… 2. General and specific ‘urf -General
‘urf is the common custom, which is prevalent everywhere among all people in a
matter, regardless of the passage of time. e.g. Contract of manufacturing, sale by
give and take. -Specific ‘urf is prevalent in particular locality, profession and
trade. Classification of ‘urf continue… 3) Valid and Invalid ‘Urf • Valid ‘urf:
The custom which does not contravene the Shari’ah. It does not prohibit what is
lawful, allow what is unlawful and nullify the obligation. • Invalid ‘urf is
contrary to the Shari’ah i.e. allowing what is unlawful, prohibiting what is
lawful. Custom as a source of Islamic law and its proof • Majority of Muslim
jurists consider a valid custom as one of secondary sources of Islamic law. • The
justification of ‘urf as a source is that if the practice of the people with regard to
their transaction and disposition is not considered, they will suffer hardship and
difficulty and by approving what has been practiced by them, will brings them
benefit and removes hardship from them. • The removal of hardship is a type of
maslahah. Continue… • Therefore, there were many practices of Arab before
Islam have been recognized by Shari’ah such as mortgage, contract of rent,
imposition of paying diyah (compensation) on the family of murderer,
consideration of equality (kafa’ah)in marriage contract etc. • The Shari’ah only
nullifies the custom which is not procured benefit to the people such as
infanticide, gambling, usury, preventing a woman from inheritance etc. • Thus
custom has a close relation with maslahah and its position as a source of law is
the same position of maslahah. Conditions of ‘urf • It should be continuous. • The
custom that will refer to in any transaction should exist at the time of concluding
such transaction. • The parties should not agree on anything which runs counter
to the custom. If the parties clearly make an agreement against the custom, their
agreement will be considered and not the customary practice. • It should not
contravene a text of the Qur’an and Sunnah. Effect of changing of custom on law
• The law which is relied on custom will certainly change with the changing of
custom. • Therefore we found that the jurists of the same school of law have
different legal opinion regarding any issue where its ruling is based on custom.
Effect continue… E.g. 1) Recommendation of witness. • According to Imam Abu
Hanifah, a witness, before he/she can be called in, is no need to be recommended
in a case other than hudud and qisas punishment. But later his disciples
Muhammad and Abu Yusof assert that all witness in any case need to be
recommended. 2) Sale of bees and silkworm. • Abu Hanifah view that it is not
permissible to sell bees and silkworm since they are not considered as property.
However, later on his disciple Muhammad allow such transaction as the people
at that time were trading with such flies. 'Urf or Customary law is one of the
most important supporting sources in Islamic law. This can be seen through
many legal rulings (ahkam) in Islamic law, which was based on 'urf in which
most of these ahkam will change according to the change of circumstances, place
and time. As for basis of 'urf or custom, it is the product of the nature of the
people and their culture, it grows in strength and popularity by means of
imitation that transfers and implants it in the lives of people. Normally these 'urf
or customs will be inherited by generations until the come of other customs that
can overrule the earlier ones. Therefore, this study proposed and explained the
'urf and its application in Islamic law, particularly under the differences among
'urf, 'adah, and ijma' (consensus of jurists). Moreover, the classifications of 'urf
were well analysis in the concept of Shari'ah. The proof of 'urf was explained
critically while the legal maxims under 'urf and rules that govern the
applicability of 'urf under Islamic law were also discussed and it ended with well
conclusion. Urf
1. 1. URF(CUSTOM)
2. 2. DEFINITION• Literally - something which is known• Juristic –I. Recurring practices which
areacceptable to people of sound nature.II. The collective practice of a largenumber of
people2
3. 3. • Another term synonyms with ‘urf is ‘adahbut they have to be distinguished:• ‘Adah means
repetition or recurrentpractice of individuals or a group ofindividuals. ‘Adah refers to the
habits ofindividuals.• Most jurists consider ‘urf and ‘adah tomean the same.3
4. 4. HUJJIYYAH• The ‘ulama have generally accepted ‘urfas a valid criterion for purpose
ofinterpreting al-Quran.–E.g. “Let those who possess pay bytheir means.” -al-Talaq (65):7.•
In this ayah, the Quran does not specify theexact amount of maintenance of children,but it
leaves the quantum to be determinedby custom.4
5. 5. –Amount of mahr–Amount of compensation or mutaah–Period of menstruation/post natal–
Sale and purchase agreement such aswhat to include in buying a house or acar–Payment of
deposit5
6. 6. • Based on legal maxims:• ‘Custom is the basis of judgement‘– ‫ •ﺍﻟﻌﺎﺪﺓﻤﺤﻜﻤﺓ‬It is based on the
hadith:– ‫‘ –ﻤﺎﮦﺮﺁﺍﻟﻤﺴﻟﻤﻮﻦﺤﺴﻧﺎﻔﻬﻮﻋﻧﺪﺍﻟﻟﻪﺤﺴﻦ‬what the Muslims deem to be good isgood in the eyes of
Allah’6
7. 7. • ‘What is proven by ‘urf is like that which isproven by a shar’i proof”• ‘What is determined
by custom istantamount to a contractual stipulation– ‫ »ﺍﻟﻤﻌﺭﻮﻒﻋﺭﻔﺎﻜﺎﻟﻤﺸﺭﻮﻁﺸﺭﻁﺎ‬When someone
rents a car, he should useit according to what is customary andfamiliar, a condition that is
presumed toapply even if not stated in the contract.7
8. 8. • Based on the practices of theProphet and the companions–The Prophet said to the wife
of Abusufyan, “Take from the property ofAbu Sufyan what is adequate foryou and your child
in a normalmanner.”• The basis of the legal decision wasclearly custom.8
9. 9. Significance of custom• As a basis of reference for juristicviews and ijtihad.–Example:
Imam Syafi’e laid thefoundations of his school in Iraq butthen when he went to Egypt,
hechanged some of his earlier viewsowing to the different customs inthe Egyptian society9
10. 10. Background of Custom• Customs which were prevalent during thelifetime of the Prophet
and were notexpressly overruled by him become part ofSunnah taqririyyah.• Islam has
retained some of the Arabcustomary practices with some reformssuch as the payment of
blood money, bayas-salam, mortgage and kafa’ah inmarriage, principle of ‘asabah
ininheritance.10
11. 11. • For the post-Islamic custom of theArabian society, Imam Malik has gonefar as to
equate ‘amal ahl madinahwith ijma’• The practices constitutes a source oflaw in the absence
of an explicit rulingin the Quran and Sunnah.11
12. 12. Conditions of valid urf• Must represent a common andrecurrent phenomenon–The
practice of a few individuals orlimited number of people is notauthoritative12
13. 13. –Art. 14 of the Majallatul Ahkamal-’Adliyyah provides that:• ‘Effect is only given to custom
whichis of regular occurrence’• Custom must also be dominant i.ethat it is observed in all or
most ofthe cases to which it can apply.13
14. 14. • Must be in existence at the time atransaction is concluded–Example in contracts
andcommercial transaction• Relevant to the interpretation ofdocument14
15. 15. • Must not contravene clearstipulation of an agreement–As-Suyuti “ The accepted
custom issimilar to the stipulated agreement.”–The general rule is that the
contractualagreement prevail over custom andrecourse to custom is only valid in theabsence
of an agreement.15
16. 16. • Example:–Custom : payment of dower bystages–Agreement in contract : whole• In this
case, agreement in thecontract prevails over the custom16
17. 17. • Must not violate nass that is thedefinitive principles of the law–the opposition of custom
to the nassmay either be absolute or partial.–In case of absolute opposition, thecustom must
be set aside.–In case of partial, the custom is allowedto act as a limiting factor on the text.17
18. 18. • Example of absolute opposition:–Customary practice that excludingwomen from
inheritance–Welcoming guest by servingintoxicating liquour–The practice of usury18
19. 19. • Examples of partial opposition:–Practice of bay al-salam. TheProphet in hadis
prohibited the saleof non-existing objects but hepermitted salam19
20. 20. –The Prophet is said to haveforbidden conditional sale, that issale with conditions that
may not bein agreement with the nature of thecontract.–The hadith quoted: “the
Prophetforbade sale coupled with acondition.”20
21. 21. • However, the majority of Hanafiand Maliki jurists have validatedconditions which are
accepted bythe people at large and whichrepresent standard custom.• How about ‘jual
janji’?21
22. 22. • Jual janji is a customary securitytransaction whereby a land ownertransfers his property
to a creditorfor a loan on condition that, if theloan is repaid within a stipulatedtime, the
property will beretransferred to the vendor for thesame price. 22
23. 23. • If the condition is not met, then thejual janji (conditional sale)arrangement is
transformed into jualputus (outright sale).• The loan is considered part of theprice of the land,
and in former yearswas normally not commensurate withthe actual value of the property23
24. 24. Types of custom24Verbal(qauli)Actual(fi’li)
25. 25. Verbal (qauli)• Consists of general agreement ofthe people on the usage andmeaning of
words deployed forpurposes other than their literalmeaning.25
26. 26. • In other words, by popular usagea word is used to denote meaningthat is different from
its literalmeaning.• The customary meaning to theword become dominant over theliteral
meaning.26
27. 27. Examples• Solah• Zakah customarymeaning• Hajj27
28. 28. • “Kepala mayat?”–Fixed share allocated to survivingspouse28
29. 29. • The word ‘ulama’”–Literally means those who areknowledgeable in religion – many–
Customarily refers to any personwho are religious andknowledgeable in religion one
ormany29
30. 30. • The word ‘air tuak’–In some states in Malaysia it refersto a kind of drink from coconut
butin some other parts of Malaysia itrefers to intoxicated drink.30
31. 31. • Lahm (‫ = )ﺍﻟﻟﺤﻢ‬in the Quran itrefers also to fish but customarilyit refers to meat other than
fish.• Daabah (‫ – )ﺍﻟﺪﺍﺒﺔ‬in Quran it refersto all creatures including humanbeing. Customarily it
refers to fourlegged animals.31
32. 32. • Thus if some said “Wallahi I willnot eat meat (lahm)” then one dayhe ate fish – he will
not be liablefor kaffarah because the wordlahm does not include fish.32
33. 33. • Customary meaning prevails overliteral meaning in cases ofcontracts, oaths and
commercialtransactions–‘A’ takes an oath that he will neverset foot in so and so’s house.–
Customary meaning = entering thehouse 33
34. 34. –If he just set his foot in the housewithout entering it then he will notbe liable for
kaffarah.34
35. 35. –A husband says to his wife “wallahi! I will never ‘touch’ youagain”• What if he later had
physical contactwith her such as touching her hand?• Will he be liable to pay kaffarah?•
What ‘touch’ means literally andcustomarily?35
36. 36. Actual (fili)• Consists of commonly recurrent practiceswhich are accepted by the people.–
Eg: give and take sale (bay’ al-ta’ati) –concluded without utterance of offer andacceptance–
In case of dower–Harta sepencarian36
37. 37. –In case of betrothal ceremony• Berpantun• Sarung cincin – exchange of ring• Exchange
of gifts (Barang2 hantaran)37
38. 38. • Verbal and actual custom arefurther divided into two types –general and special (al-’urf
al-’amand al-’urf al-khas)38
39. 39. General Urf• Prevails everywhere on which thepeople agree regardless of thepassage of
time.–Example is bay’ al-ta’ati–Fee imposed on entry to publicbaths or parking space or
publictoilet etc.39
40. 40. Special Urf• Prevails in particular locality,profession or trade – eg: KL stockexchange•
Hanafi said that this kind of ‘urfdoes not qualify the generalprovisions of the nass. It will
beignored when it contradicts thenass. 40
41. 41. • ‘urf is also categorised as sahih(valid or approved) and fasid(disapproved).41
42. 42. Relationship between urf andsunnah, ijma and ijtihad• Urf and Sunnah–General rule is
‘urf must not violatenass including sunnah but if theconflict between ‘urf and nass is
notabsolute then custom is allowed toact as limiting factor on the text.–Examples – bay’
istisna’ and salam42
43. 43. –“The Prophet prohibited the sale ofnon-existing objects but hepermitted salam.”–The
hadis is general in that itapplies to all varieties of sale inwhich the object of sale is notpresent
at the time of contract.43
44. 44. –Salam was exceptionally permittedas it was deemed to be of benefit tothe people.–The
rule applies the same to istisna’but since istisna’ was commonlypracticed among all people
of allages, the fuqaha’ have validated iton grounds of general custom.44
45. 45. –Consequently the customconcerning istisna’ is allowed tooperate as a limiting factor on
thetextual ruling of the hadis in that thehadis is qualified by the customconcerning istisna’.45
46. 46. • ‘Urf and Ijma’–They are similar but different.–(i) ‘urf materialises by theagreement of all
or the dominantmajority of the people and itsexistence is not affected bydisagreement of a
few individuals46
47. 47. –Ijma’ requires the consensus of allmujtahidun of the period or thegeneration in which it
materialises.–(ii) ‘Urf does not depend onagreement of mujtahidun but mustbe accepted by
the majority ofpeople including mujtahidun47
48. 48. –For ijma’ only mujtahidun candecide on juridical matters not thelaymen–(iii) the rules of
‘urf are changeableand a custom may in course of timegive way to another custom or
maysimply disappear with a change ofcircumstances but not ijma’48
49. 49. –Ijma’, once concluded precludesfresh ijtihad on the same issue andis not open to
abrogation oramendments.–(iv) ‘Urf requires an element ofcontinuity – if it exists over a
periodof time–Ijma’ come into existence wheneverthe mujtahidun reach unanimous49