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CHAPTER TWO:

"#da and "Urf in !anaf" and Sh#fi$" Fiqh

2.1: Introduction In this chapter, I have briefly traced the position of custom, or $urf, in

the Islamic legal tradition from it’s inception through the mid-seventh/

thirteenth century. Throughout this period, the use of custom went through

two important stages of legal development. The first stage was the absorption

of pre-Islamic customs of Arabs, Persians, and others into the shar%"a (i"tib!r

al-"urf). The second stage was the formal establishment of custom as one of

the five major principles of jurisprudence, with its related conditions,

restrictions, sub-principles and guidelines (al-taq"%d al-fiqh%).

In the first stage, use of custom in adjudication was ad-hoc,

inconsistent and difficult for fuqah!$ to contain and control. In order to

remedy this problem, fuqaha developed a comprehensive system for the use of

custom as represented by the principle al-"!da mu'akkama. This attempt to

set boundaries and guidelines for the use of custom, while necessary and

useful, could not be completely successful because custom, by definition,

changes from place to place and age to age.

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2.1.1: Background “The hidden pitfall in historiography is disregarding the fact that

conditions of nations and people change with the change of the ages and the

passage of time”41. If avoiding this pitfall was important for the historian, it

was absolutely indispensable for the practitioner of law, be he the q!,% or the

muft%. In fact, al-Qar#f" (d. 684/1285)42 acuses those who fail to do so with

breaking legal consensus and of ignorance of the essence of the faith43. He

poses a tough legal question which tackles head-on the issue of ijtih!d and

taql%d facing the muqallid in the post-formative period of Islamic legal

history. Al-Qar#f" says,

What is the correct assessment of legal determinations which occurred in M#lik’s, al-Sh#fi$"’s, and others’ schools whose foundations were the customs were in place at the time the scholars reached these rulings? If these customs change and come to mean the opposite of what they had meant, then are the fatw#s that were recorded in the books moot (tubtal)? and [a new] fatw# to be issued according to the requirements of the new customs? Or will we say, ‘We are muqallid(n and it is not for us to issue a [new] legal opinion (shar") because we are not qualified to perform ijtih!d and thus must rule according to what is in the books that have been passed down from the mujtahids?’

41 Ibn Khald%n, al-Muqaddimah; An Introduction to History. Tr. Franz Rosenthal, Ed. N.J. Dawood, (Princeton; Princeton University Press, 1967. 42 Shah#b al-D"n al-Qar#f", Ab% ‘l-$Abb#s A)mad b. Idr"s al-*anh#j", a foremost scholar of the M#liki madhhab whose important work, Kit!b Anw!r al-Bur(q f% Anw!$ al-Fur(q is the most influencial fur(q work af all madh!hib. 43 See al-Qar#f" in A)mad Fahm" Abu Sinna. al-"#da wa ‘l-"urf f% ra$y al-fuqah!(. (Cairo: Ma'ba$at al-Azhar, 1947), 105.

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The correct answer is that continuing to [issue rulings whose basis] was custom despite the changes to that custom runs contrary to legal consensus and is ignorance of the [essence] of faith. Indeed everything in shar%"a that originates in custom, their 'ukm changes according to changes in custom to suit the new custom”

So, for al-Qar#f" and others, a cornerstone of fulfilling the obligations

of q!,% or muft% is to recognize cases whose legal determinations were reached

using custom as their foundations. Once they have done so, they must also be

aware of the customs of the current time and reach new legal determinations

that correspond to the new custom. It is noteworthy that this mid-seventh/

thirteenth century scholar reminds his peers of their duty and responsibility to

engage with their school’s major scholars and their nearly-sacred written

tradition, arguing that not doing so threatens people with the hardship and

burden of laws which suit another time, place and set of circumstances. A

muqallid not only should but indeed must engage confidently and vibrantly

with his masters’ rulings to deal justly in matters that rest on custom. When

custom is at the heart of a case, it is essential to re-examine it in every time,

locale, and circumstance and issue a ruling which accommodates the changes

to that custom.

Throughout this chapter, we will trace the concept of custom through

Islamic legal tradition and establish the way it has been the touchstone of legal

leniency, accommodation, and responsiveness to people’s changing needs

throughout history. After establishing basic terms, definitions, and concepts,

we will present the development of "urf as a legal foundation from the earliest

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days of the Prophet’s adjudication to its culmination as an essential legal

principle in the sixth/twelfth century and beyond.

The field of al-qaw!"id al-fiqhiyya was developed by Islamic legal

scholars to bring about the overall objectives (maq!sid) of shar%"a, one of

which is to regulate interactions and transactions between people in a way that

preserves their various interests in accordance with the law of the Creator.

Among the most important factors which affect people’s relationship to their

own legal systems is the extent to which that law is aware of the changing

circumstances and customary practices which underpin many of their day to

day transactions. So, a legal system which strives to protect people’s interests

must give customary practice actual legal weight and consequence in

adjudication, despite the difficulty of adapting that system consistently and

functionally to fit changes in custom.

Islamic legal scholars were aware of this need and as a result, included

custom among the five central principles of law, upon which cases can be

built upon44. Books of fatw! and fur(" contain many examples of customary

practice that determines how a case is adjudicated. From these various cases

in nearly every section of the law, post-formative scholars collected the legal

determinations of these cases and grouped them under the general principle of

al-"ada mu'akkama, which means that custom is made the judge in certain

legal disputes.

44 We have seen these on p 28 above.

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However, as we know, custom is not a constant across time or place.

All legal systems have struggled to fit custom into its system without

jeopardizing its ability to be structured and consistent. The same tension

existed clearly in the process of al-taq"%d al-fiqh%: as soon as one commits to

al-"!da mu'akkama, he simultaneously recognizes that customs change and

new circumstances require new legal determinations. In essence, custom,

with its ever changing nature, undercuts the task of al-taq"%d al-fiqh% whose

purpose is to set down, once and for all, a reference handbook of legal

determinations according to the principles of the law.

Despite this challenge, post-formative legal theorists and practitioners

of all schools of law reached a consensus that custom was to be among the

central principles of Islamic law. In this chapter, we will examine this

principle in detail to understand its meaning, limitations, applications, debates,

and overall significance in Islamic law. By the end of this chapter, we will

have reached two important conclusions: (a) that Islamic Law, its theorists,

and practitioners agreed upon, were aware of, and adjudicated on the basis of

custom in many areas of Islamic law from its inception and throughout its

development, albeit differently from madhhad to madhhab and (b) that the

q!"ida al-"!da mu'akkama, when properly understood and utilized, insures

the ability of Islamic Law to adapt to people’s changing circumstances and

customs and in this way help fulfill an obligation of shar%"!: protecting

people’s various interests over time and changing circumstances.

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In the previous chapter, we concluded that al-qaw!"id al-fiqhiyya are

one mechanism whereby fuqah!$ organized and conceptually systematized the

fur(" cases which had been treated previously within their schools of law. The

purpose of organizing the fur(" was not just academic: instead, it was

important for the muft% and the q!,% to be well informed of their schools

positions on various cases in order to respond appropriately to new legal

situations occurring in their time.

2.2. Definitions of "#da and "Urf: Lexical and Technical45

2.2.1: Linguistic Definition of "#da

According to Ibn Man-%r, al-"!da is defined as al-daydan, which

means continuing to do a thing time and again46. ‘Daydan h!tha ‘l-rajul 'usn

ul-khuluq’, or that man’s nature or way is to be well mannered ('usn al-

khuluq). The plural of "!da is "!d!t and "aw!$id.

45 Much of my discussion of the definitions of al-"urf and al-"!da comes from Ahmad Ab% Sinna’s authoritative study on the subject, al-"Urf wa ‘l-"!da f% ra$y al-fuqah!$. (Cairo: Ma'ba$at al-Azhar, 1947). 46 See Ab% Sinna, al-"Urf, 7: “al-da’b wa ‘l-istimr!r "ala ‘l-shay$”. Ibn Manz%r is Mu)ammad b. Makram b. $Al" b. A)mad b. Ab" ‘l-Q#sim b. !ibqa b. Man-%r al-An,#r" al-Ruwayfa$" al-Ifr"q" al-Mi,r", Jam#l al-D"n Ab% ‘l-Fa&l. He was grammarian, poet, writer, and a linguist who was well-aquainted with many fields of science. He was born in Cairo (or Tripoli, there is a discrepancy) in 630/1232 and later became q!,% of Tripoli. He returned to Egypt where he died in 711/1311. Among his most important works is Lis!n al-"Arab, the dictionary to which Ab% Sinna is referring in this discussion. See $Umar R. Ka))#l#, Mu"jam al-Mu$allif%n: tar!jum mu&annif% al-kutub al-"arabiyya. (Bayr%t: Mu(assasat al-Ris#la, 1993/1414) Mu"jam, 3:731.

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2.2.2: Technical Definition of "#da

According to Ibn Am"r !#j in his Shar' al-Ta'r%r, "!da is a thing

which is repeated without any logical or reasonable connection47. He says,

“al-"!da al-$amr al-mutakarrir alladhi ya'duth min ghayri "il!qatan

"aqliyya”48. Again, let us examine the definition fragment by fragment. “al-

(amr” refers to a matter as opposed to a command and in this context may

refer to a qawl (spoken word) or a fi"l (an action) as we have seen above.

“Al-mutakarrir” is the first qayd in defining "!da. It means the

occurrence of a thing time and again and logically, and negates any action

which occurs once49. Another qayd in defining "!da is “alladh% yahduth min

ghayri "il!qatan "aqliyy!” which excludes from "!da that which occurs as a

result of a conscious logical or reasonable determination to do so and excludes

from it that which occurs on a cause and effect basis through "alaniya, or

making a thing publicly known.

2.2.3: Lexical Definition of "Urf:

The term "urf in its actual lexical linguistic contains several related

concepts. Ibn Man-%r defines "urf in five related sense, each of which

represents a literal ('aq%q%) meaning as opposed to a symbolic (maj!z%) one.

47 Mu)ammad b. M.b. M. b. !asan b. $Al" b. Sulaym#n b. $Amr b. M. al-!alab" was a !anaf" faq%h, u&(l%, and mufassir. He was born in !alab in 870/1422 where he lived. He died there in 879/1474. Among his works is al-Taqr%r wa ‘l-ta'b%r f% shar' al-ta'r%r li Ibn Hamm!m. See, Ka))#l#, Mu"jam, 3:677. 48 See Ibn Am"r !#j in Ab% Sinna, al-"Urf, 7-8. 49 A notable exception is a woman’s menstruation which is considered an established $#da from the first occurrence. In this instance, the majority of scholars of the Sh#fi$", M#lik" and !anbal" schools (al-jumh%r) accept "!da as being established from its occurrence once. !anaf"s, however, require it to occur at least twice before it can be considered a "!da.

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First, the "urf of a thing is the top of it. The visualizations he provides

are "urf al-jabal (a mountain’s summit) and "urf ul-d%k (a rooster’s crown).

Second, "urf is al-j(d, or the act of giving a thing. Third, "urf or "irf means

patience or forbearance (as in al-"irf fi-‘l m(&%b!t, or forbearance in times of

trial). Fourth, "urf is an acknowledgement or statement (as in lahu "alayya

$alfan "urfan, or I acknowledge that I owe him 1,000 [din#rs]). Fifth, "urf is

used to mean succession (as in +!ra al-qat! "urfan "urfa, or the birds flew one

after the other; in succession)50.

2.2.4: Technical Definition of "Urf

We will focus on the lexical understanding of the term "urf in order to

elucidate the concept or "urf within a legal context. Ibn Man-%r’s fifth

meaning of "urf discussed above, or the occurrence of a thing time and again

in succession to each other approximates most precisely the specific

understanding of "urf as we know it in the legal sense, or, the custom of a

people, or an action which they repeat customarily.

It is al-Ghaz#l" (d.505/1111)51 who provides us with the legal

understanding of "urf as he defines it in al-Musta&f!. There he explains "urf as

50 See Abu Sinna, al-"Urf, 7. 51 He is Mu)ammad b. M. b. M. b. M. al-.%," al-Sh#fi$", Ab% !#mid. He was among the most important and outstanding theologian, scholar of law and *uf" of Islamic history. He was born in .#bar#n in 450/1058 one of the two areas of .%, in Khora,#n. Among his teachers were Im#m al-!aramayn al-Juwayn" but he traveled extensively to receive knowledge at the hands of his time’s most well-respected scholars. He taught at the Niz#miyya in Baghdad and in Nishap%r, but preferred a life of ascetic worhip, research and writing. He died in the same town where he was born, .abar#n, in 505/1111. Among his most important works are I'y!$ "ul(m al-d%n, al-Waj%z f% fur(" al-Sh!fi"iyya and al-Musta&f! f% u&(l al-fiqh. See Ka))#la. 3:671.

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follows, “al-"urf huwa ma-‘istaqarr! fi ’l-nuf(s min jihat al-"uq(l wa

talaqqa+uh! ‘l-+ib!" ul-sal%ma bi ‘l-qub(l (t!bi"an li ’l-shar"). "Urf is that

which is established in people through reason and which is accepted by means

of proper behavior52. How is it that "urf becomes “established in people”, or yastaqirr fi ‘l-

nuf(s? This occurs from widespread and repeated usage or action resulting

from a tendency and desire to do it.

Let us examine al-Ghaz#l"’s definition section by section. First, ‘m!’is

a general term which includes either action or a spoken word. The generality

of ‘m!’ is qualified by ‘istaqarra al-nuf(s’ which serves to exclude anything

which occurs rarely or anything which people did not regularly do (yukhrij

"anh! al-"urf ma 'a&ala bi-tar%q al-nudra wa lam ya"t!duhu ‘l-n!sa fa innah(

lam ya"t!du "urfan). Also, ‘m!’ can refer to the actions of one or many. But

once it is qualified by ‘istaqarra al-n!s’ it is no longer valid to apply it to the

actions of one. That action would then become a "!da, or a personal custom.

Furthermore, ‘min jihat al-"uq(l’53, is another qualifier to the

definition which prevents ‘ma-‘istaqarra al-nuf(s’ from being so general as to

include shahaw!t54 and evil things. It limits people’s istiqr!r to actions which

are deemed wholesome and good and which correspond to shar".

52 Abu Sinna, al-"Urf, 8. 53 Abu Sinna, al-"Urf, 8-9: i.e. allat% tudrik( 'usn al-ashya$i wa qub'ih! min jihat al-shar". 54 ibid: i.e. people’s own desires and whims.

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"Urf, then, cannot be established upon a single incident, such as the

deterioration of Arabic due to intermixing with non-Arabic speakers55. Nor

can it be established due to amr ittif!q%, like the taf!$ul of a people on the

basis of signs. These are considered "urf f!sid, or invalid customary practices,

because they directly oppose the dictates of shar".

Another qualification to the definition of "urf aims to exclude any

actions or practices which society rejects, applying $urf instead to those

actions which are accepted and practiced by those of good character56.

So, "urf in our current legal context is an amalgam of several linguistic

senses which culminate in the following definition. $Urf is any practice which

does not contravene the law and which becomes established in people by

means of their reason and which is accepted and practiced repeatedly by

people of good character.

2.3: Sources of Authority for "!da: Qur*!n, +ad'th, Ijm!"

2.3.1: "Urf in the Qur(#n

For Muslims, the Qur$!n is the ultimate authority which imparts the

guidance of the Creator to facilitate many aspects of life. In many instances in

the Qur$!n, the Lawgiver has provided mankind with an important moral or

ethical directive but has left them to carry out that directive according to their

own customary understanding of it. Far from being rigid or removed from

55 ibid, ‘fas!d al-alsinatu‘l-nashi$a "an ikh+il!t al-a"!jim bi ‘l-"arab’ 56 ibid, ‘talaqqa+ahu al-+ib!" al-sal%ma bi’l-qab(l’

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people’s realities, the Qur$!n acknowledges and accommodates people’s

changing customary practices as a legal factor to be considered in mediating

disputes.

The most frequently used reference from the Qur$!n to uphold "urf in

mediating disputes in S(rat al-A"r!f, verse 199, which says, “Hold to

forgiveness, command what is right; but turn away from the ignorant57.

Although most discussions of "urf begin to justify its use on the basis of this

verse, I don’t believe that this is the most powerful testament to the legitimate

legal position of custom in the Qur$!n. In fact, this verse uses the term $urf in

the sense of what is known to be correct or proper, much as the term al-ma"r(f

is used in many places throughout the book.

Other cases in the Qur$!n lay stronger foundations for consideration of

custom in legal affairs. Two examples, the expiation for breaking an oath and

the appropriate amount of nafaqa due to a spouse and child, will show that the

point of God’s laws is not to bog people down in mundane details which may

not be applicable through the ages, but to impart a timeless lesson or moral

imperative to the believer to be executed in a suitable manner under all

circumstances.

57 See Y%suf $Al"’s, The Holy Qur$!n, 464 and note 1170 on said page. This verse clearly comes in the context of man’s inclination to reject the supreme divinity of God by attributing power to other deities of their own making. God is addressing Mu)ammad and implores him to bring the message to people but also keep in mind that man’s nature is weak, according to Mu)ammad Asad’s Meaning of the Holy Qur$!n. In his translation of this sura (which he renders the faculty of discernment), Asad suggests a slightly different meaning: for ‘khudh al-"afw’, he says, “make due allowance for man’s nature”, p.234. So, for him. "urf in this context is equated with man’s nature (or that to which he naturally inclines). The vast majority of translations and interpretations of this verse yield the same interesting conclusion: i$mur bi ‘l-"urf = command what is right, enjoin the doing of what is right and not what is customary.

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The first example, that of expiation for breaking an oath, makes this

point well. The verse establishes guidelines for fair and equitable dealings in

matters of marriage and divorce, and the verse reads as follows:

God will not take you to task for oaths which you may have uttered without thought. But He will take you to task for oaths which you have sworn in earnest. Thus, the breaking of an oath must be atoned for by feeding ten needy persons with more or less the same food as you are wont to give to your own families, or by clothing them, or by freeing a human being from bondage; and he who has not the wherewithal shall fast for three days. This shall be the atonement for your oaths whenever you have sworn and broken them. But be mindful of your oaths! Thus God makes clear unto you His messages, so that you might have cause to be grateful58.

Here, the context is atoning for the sin of breaking an oath. In such a

situation, the Lawgiver provides four acceptable options: to feed ten needy

persons, to clothe them, to free a slave from bondage, or to fast for three days.

In the first option, a person is instructed to feed ten needy people with more or

less (in both kind and amount) the food as you provide your own families.

What is important here is that a certain moral lesson be taught: that

taking an oath necessitates fulfilling its obligation. So, here, God prescribes

the essential part of the atonement (feeding ten needy people) and leaves the

details (what to feed them, how much to feed them) to people to work out

within the guidelines He has established. Since the kind and amount of food

people eat varies widely from class to class, place to place and throughout the

ages, it is left vague so that people may fulfill its obligations with ease and

comfort based on their own circumstances be they economic or social. So the

same rule is applicable to a King as it is to a merchant: each knows their own 58 See M. Asad, The Message of the Qur$!n, 161-2. Emphasis added.

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average meal, both type and amount, and on that basis can feed the ten needy

persons. In this way, what people view as customary meals, amounts, and

kinds of foods are in fact the pereminant legal determinant. So, this example

lends weight to "urf that the previous verse from S%rat al-A$r#f does not.

The second matter to which the Qur$!n leaves the details to customary

discretion is in the maintenance, or nafaqa, of mothers and their infants. The

verse is as follows:

And the (divorced) mothers may nurse their children for two whole years, if they wish to complete the period of nursing; and it is incumbent upon him who has begotten the child to provide in a fair manner for their sustenance and clothing. No human being shall be burdened with more than he is well able to bear: neither shall a mother be made to suffer because of her child…59

This verse is the basis upon which maintenance, alimony, and support

are based in the Qur$!n. The moral imperative or ethical lesson is that a

spouse must support and provide for his family. The operative phrase in this

verse is ‘bi’l-ma"r(f’, meaning in a fair manner or in the commonly practiced

way prevalent in society, places the how of implementation on people. Had

the Creator established certain quantifiable norms or minimum level of

maintenance, this would have created undo burden on the poor and allowed

the wealthy to get away with an insufficient amount of maintenance. Instead,

a flexible, reasonable rule was established to ensure the rights and best interest

59 M. Asad, The Message of the Qur$!n, 51. 2:233 part of which reads, “wa ‘l-w!lid!tu yur,i"na awl!dahunna 'awlayni k!milayni li man ar!da ann yutimma ‘l-rid!"a wa "al! ‘l-mawl(di lah( rizquhunna wa kiswatuhunna bi’l-ma"r(fi l! tukallafu nafsun illa wus"ah! l! tu,!rra w!lidatum bi waladih!…(al-aya). Emphasis added

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of the mother and child while at once only demanding of the husband what is

within his means and within society’s limits60.

From these examples, we see that Qur(#nic evidence for the use of

custom in legal matters, while present and sufficient, cannot be considered

powerful or overwhelming. According to the Lawgiver, custom is a way of

making His will easy and natural to implement for all people throughout

history. In His subtle but effective way, God is embuing people’s custom and

practice with significant legal weight. He is setting a precedent-that al-$#da

mu)akkama- which will not be overlooked by legal experts in the centuries to

come. In fact they would later come to expound further on it and elaborate

upon it, making it one of the five major principles of law.

2.3.2: "Urf in the Sunna

Second in authority only to the Qur(#n, 'ad%th (pl. a'ad%th) is a major

source, or a&l, for Islamic law. In his role as the highest legal authority of his

60 Another verse in the Qur$!n reflects the Creator’s intimate knowledge of and consideration of the customs of the Arab recipients of His book. In this example, the context is establishing certain times throughout the day whereupon the Prophet could request privacy from even his most intimate family members. The verse is as follows: “O ye who believe! Let those whom your right hands possess, and the children among you who have not come of age ask your permission (before they come to your presence), on three occasions: before the morning prayer; the while ye doff your clothes for the noonday heat; and after the late-night prayer: These are your three times of undress: outside those times it is not wrong of you or for them to move about attending to each other; This does Allah make clear the Signs to you for Allah is full of knowledge and wisdom. In this example, God is prescribing a proper mode of behavior on the basis of the needs and established customs of people living in the Arabian dessert: a need to disrobe in order to find relief from the oppressive heat. That people retired unclothed during the noonday heat is understood by God to be an established custom. So the verse does not prescribe a new custom, but rather suggests that in light of the established one, it would be advisable to allow people privacy at that particular time.

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community, the Prophet Mu)ammad often relied upon custom as a source for

adjudication61. The 'ad%th collections abound with examples of "urf which

jurists and scholars have put forward to bolster authority for the use of custom

in fiqh. I will present several a'ad%th which demonstrate some ways in which

the Prophet and his early companions used "urf in the legal conflicts that faced

them.

In the Prophet’s sunna, many 'ad%ths have been used to support the

use of customary practice. An important one was related by $+(isha about

Hind bint $Utba, the wife of Ab% Sufy#n. In this 'ad%th, Hind complains to

the prophet about her husband’s stinginess in spending on his family. She

relates that Ab% Sufy#n did not provide sufficiently [financially] for her and

her child and that she often covered their expenses only through the money

she takes from him without his knowledge. The Prophet’s response was that

she should take what she needs for herself and her child “bi’l-ma"r(f”62. In

other words, the Prophet encourages her to take what is customarily

considered enough to maintain her and her son and not to exceed that.

61 It is interesting to note that, in many instances, the customs he upheld were pre-Islamic. This, however, is exactly in keeping with the larger mission of Islam which has always upheld previous legal systems and customs which did not contravene its teachings. Those customs, habits, beliefs and practices which did not contradict those of Islam were often embraced and given prominence. 62 Shab"r, Mu)ammad $Uthm#n. al-Qaw!"id al-kulliyya wa’l-,aw!i+ al-fiqhiyya fi’l-shar%"a al-Isl!miyya.($Amm#n: Dar al-Furq#n, 2000), 235. See also, $Alw#n, Ism#$"l b. !assan b. Mu)ammad. al-Qaw!"id al-fiqhiyya al-khams al-kubr! wa ‘l-qaw!"id al-mundarajah ta'tah!. (Saudi Arabia: D#r Ibn al-Jawz", 2000), 455.

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The second 'ad%th in this context is one related by Ibn $Umar in the

Sunan of Ab% D#w%d63. The Prophet Mu)ammad says, “[The standard in]

weights shall be the weights of the people of Macca and [the standards in]

measures shall be the measures of the people of Mad"na”64. The Maccans, on

one hand, were traders whose livelihood centered on establishing correct

weights for accurate business transactions. The Medinans, on the other hand,

were farmers and dealt mostly with measures (of grain, etc.). This 'ad%th

aims to show that when there is a discrepancy between two people regarding

the weight or measure of something, they must use the customary weights and

measures of their own locale to determine the correct weight/measure.

In other words, if X promised Y 20 pounds of grain and delivered 19.5

pounds, Y could bring forth litigation requiring X to deliver the remaining .5

pounds. The first step taken by the q#&" would be to establish the normal

means by which grain is weighed in their town. Once that is done, and if

those scales corroborate Y’s story (that ! pound is missing), then X must

deliver it. The evidence for this ruling is this 'ad%th, which has at the heart of

it, that custom is the arbiter in many kinds of conflict.

63 $Abdullah Ibn $Umar al-Kha''#b (d. 73/693) was one of the most prominent personalities of the first generation of Muslims, and one of the authorities most frequently quoted for 'ad%th. See “Abd Allah b. $Umar b. al-Kha''#b’ in EI2 (1:53-4). Abu D#w%d Sulaym#n b. al-Ash$ath al-Sijist#n" was a traditionist born in 202/817. He traveled widely in pursuit of his studied and gained a high reputation for his knowledge and piety. He settled in Basr# and his primary work, Kit!b al-Sunan, is one of the six canonical sunn" collections of 'ad%th. He died in 275/889. 64 al-Nadw", al-Qaw!"id, 297, “al-waznu waznu ahli macca wa’l-miky!lu miky!lu ahli ‘l-mad%na”.

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Another 'ad%th, this one narrated by Mu)ayyasa, conveys the

Prophet’s natural inclination to customary practice in adjudication in the

absence of a Qur$!nic indicator. In this situation, one of al-Bar#( ibn $+zib’s

camels entered another man’s farm ('!$i+) and ruined it (afsadathu).

Consequently, the Prophet stated that people are responsible for their

farmlands during the day and shepherds are responsible for their livestock at

night, and that shepherds are liable for the damage their livestock cause at

night65.

These examples from 'ad%th demonstrate that customary practice was

used, acknowledged, embraced and subsumed in the earliest period of Islamic

jurisprudence, that of prophetic adjudication, which long preceded the formal

establishment of shar%"a.

2.4: Categories of "Urf

"Urf Qawl% and "Urf "Amal% 66

65 al-$Al#(" (d. 761/1359) considers this 'ad%th to be the strongest authority for the use of custom in a'k!m shar"iyya. See Shab"r, al-Qaw!"id, 236. As we shall see later, if the custom of a land is the opposite of this, then that custom is the legal arbiter although it seems to go against the 'adi%th. It does not, however, since the 'ad%th simply creates a rule on the basis of an existing custom. It does not seek to impose a way of doing things but simply to uphold people’s customs and make them legally consequential in adjudication. Al-$Al#(" is Ab% Sa$"d Khal"l b. Kaykald" b.$Abd All#h al-$Al#(" al-Dimashq" al-Sh#fi$" (*al#h al-D"n), a prominant Sh#fi$" scholar of 'ad%th, fiqh and u&(l. He was born in Dimashq in 694/1294) and learned 'ad%th there, in Egypt, and in the !ij#z. He also issued fatw!s and wrote many books, the most important of which are Mukhta&ar j!mi" al-u&(l li-a'!d%th al-ras(l li-Ibn al-Ath%r in 'ad%th, Tahdh%b al-u&(l, al-Ashb!h wa ‘l-na)!$ir f% fur(" al-fiqh al-Sh!fi"%, and al-Majm(" al-mudhbib f% shar' qaw!"id al-madhhab. Al-$Al#(" died in Jerusalem in Mu)arram of 761/1359. See Ka))#l#, Mu"j!m (1957), 4:126. 66 It is important to distinguish between "urf qawl% and maj!z. Both represent a connotation that is different from a word or expressions meaning. However, in the case of "urf qawl% there is abandonment of the original linguistic meaning of a word.

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"Urf can be categorized into customs of speech ("urf qawl%) and

customs of practice ("urf "amal%). Al-"urf al-qawl% denotes a word or phrase

which through people’s usage has come to mean something other than its

lecixal meaning. Furthermore, this meaning which has become understood

through people’s usage itself becomes the actual, functional meaning of the

word or phrase such that if it were stated on its own it connotes this meaning

without needing any further clarification or explanation67.

2.4.1: Al-"Urf ul-Qawl%: Customary Statements

Al-"urf al-qawl% can give a word or phrase either part of its lexical

meaning (ba", al-madl(l) or a senses other than that meaning completely

(ghayr al-madl(l)68. An example of "urf qawl% by which only part of the

meaning is intended is the use of the term ‘dirham’. The dirham had been the

common currency used throughout much of the Islamic world but its value

differed from region to region69. So, when two people doing business in

Saudi Arabia refer to the price in dirhams, they mean only their dirham, not

the Syrian dirham, for example. The same applies to the dollar, for example.

People doing business in Canada will refer to the price in terms of dollars, by

which they mean specifically Canadian dollars and not US dollars, although

‘dollar’ connotes both. Customary usage informs which part of the meaning

67 See Ab% Sinna, al-"Urf, 18, ‘al-"urf al-qawl% huwa al-laf)u ‘l-muttafaqu "al! $an yur!da minh( ghayra tam!mi madl(lihi bi'ayth( $idha $u+liqa $insarafa $ilayh% min ghayri qar%na’ 68 Abu Sinna, al-"Urf, 18, ln 3. 69 See Encyclopedia of Islam, “Dirham” EI2, (II:319-320)

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is intended in each specific context without any explicit clarification.

There are two kinds of "urf qawl% where the intention is something

other than what the words connote: al-"!m al-mu+laq and al-murakkab. The

first, al-"!m al-mu+laq, where what is intended is one particular member of a

larger group although you are stating the group70. The most common example

is when a man requests of a religious official that he wed him to a woman, or

“zawwijun% imra$atin”. Here, the groom does not mean any random woman,

but the particular free woman whom he has selected-- and who we presume

has agreed-- out of the larger category of both free and slave women. We

know what he means through our familiarity with the "urf qawl% of our society.

Al-muraqqab, the second kind of "urf qawl% , is one in which the

desired meaning is something other than what the terms mean71. This is most

common in aym!n, or oaths. For example, if Tom declares that John not set

foot in Tom’s house, we understand from his words that Tom does not want

John to enter his house regardless of whether or not he comes on a wheelchair,

or is forklifted from above and dropped in. In other words, anyone who hears

Tom’s declaration understands automatically that Tom’s main focus is not the

method by which John enters, but that he not be present in the home. We

know this through "urf qawl% $alladh% $ar!da bih% ghayr al-madl(l72.

70 Ab% Sinna, al-"Urf, 18, “ir!dat far,in mu"ayyanin min al-mu+laq ba"da $an k!na d!llan "al! far,in sh!$i"”. 71 ibid, “ir!dat ma"nan !khar li ‘l-madl(l bi ghayri ma"n!hu ‘l-$a&l%”. 72 Abu Sinna, al-"Urf, 18-19. “hun! ‘l-murakkab al-mur!du bih% ghayr% a&lihi. Two more examples are to swear "al! ‘l-m!sh% $il! bayt All!h” (what is meant is pilgrimage, not the

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2.4.2: Al-"Urf ul-"Amal%: Customary Practice

Al-"urf al-"amal% consists of the customs of practice, or actions that are

understood through the customary practices that govern them73. Some

customary practices are generally common to the wider population as a whole

since everyone uses them whereas others are particular to a certain segment of

the population (such as the practice of certain guilds, or craftsmen, or

merchants).

Whereas before shar", people knew the details of these transactions as

a matter of "urf, after tashr%", they were made more explicit to render the

contract valid. So, whereas the "urf "amal% of a town may have been to

commission the making of an urn without pre-determining its cost or how

long it would take (because this is known by custom) a valid contract of shar"%

sale necessitates the declaration of those details.

Al-"Urf al-"#m, al-Kh!&& and al-Shar"%74

physical act of walking) and “'urrimat "alaykum ummah!tikum”, etc (their mothers in themselves are not 'ar!m, but wa+$ , or intercourse, with them is. 73 ibid, 19, “m! jar! "alayhi ‘l-"amal siw!$a k!na dh!lika "!mman (ka isti&n!" al-$aw!n% wa dukh(l al-'amm!m min ghayri ta"y%ni ujratin wal! zamanin) aw kh!ssan bi baladin (ka kawni r!s al-m!l li-ahl al-bawad% huwa al-an"!m) aw bi-millatin (ka ja"l al-"%d al-usb("% li’l-muslim%n yawm al-jum"!”. 74 These categorizations take into consideration the source of the "urf. For example, the source of al-"urf al-shar"% is the sh!r". Note also that this third category, shar"%, is in fact a particular kind of $urf kh!&& but was designated separately out of deference for its source. Consequently, our discussion will discuss "urf "!m and "urf kh!&& while considering "urf shar"% a kind of "urf kh!&&.

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2.4.3: Al-"Urf al- "#m: General "Urf

Ibn $+bid"n (d. 1307/1889) defines al-"urf al-"!m as practices which

are customarily practiced by the majority of the people of the [Islamic] lands,

be they in old times or in the present75. For example, according to al-"urf al-

"!m, when we say “+allaqtu imra$at%”, everyone understands ‘+allaqa’ to mean

divorce, and not other meanings of the term. Or also, if al-"urf al-"!m of a

town is to return the packaging of a gift to its giver, then that is what is

customarily done without explicit request or statement.

2.4.4: Al-"Urf al-Kh!&&: Specific "Urf

Al-"urf al-kh!&&, or specific custom, is custom that is not practiced by

all of the people of a town, but only by some of them76. For example, in $Ir#q,

it was their "urf kh!&& to call a horse a d!bah, whereas the term usually meant

beast of burdern, especially an ass. Also, in Balkh and Khawarism, it was

their "urf kh!&& that a tailor would take a third of the cloth and supplies as

payment for his work77 Furthermore, in al-Q#hira, one of their specific

customs was to include the external staircase in the contract of sale of a

home78. Finally, fiqh% terminology, or al-i&til!'!t al-fiqhiyya, as well as the

75 Ab% Sinna, al-"Urf, 19, “m! ta"!malah( "!mmat ahl al-bil!d [al-isl!miyya] siw!$un ak!na qad%man aw 'ad%than”, taken from Ibn $+bid"n’s -!shiya. “Qad%man” here refers to the period of the Prophet’s ris!la and ijtih!d. “-ad%than” refers to the age of taql%d. Ibn $Abid"n is A)mad b. $Abd al-Ghan" b. $Umar who is known as Ibn $+bid"n al-Dimashq". He was a !anaf" jurist born in Dimashq in 1239/1824. He was muft% over many small neighboring towns then became appointed muft% of Dimashq. He died in 1307/1889. See Ka))#l#, Mu"jam, 1:172. 76 ibid, 19,“Huw! m! lam yata"!malahu ahl al-bil!di j!mi"an bal ta"amala bih% ba",uhum (ka ta"!muli ahl baladin aw 'irfatin aw d%nin "al! shay$in mu"ayyan)”. 77 ibid, 20, “daf" al-ghazl il"! ‘l-'!$ik li yansujah( bi ‘l-thulth”. 78 ibid, 20, “dukh(l al-salam al-munfa&il f% bay" al-d(r”.

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jargon of each science or trade, or i&til!'!t al-"ul(m wa ‘l-&in!"!t, also fall

under the category of al-"urf al-kh!&&, or customary practice which applies

only to certain segments of the population or in certain lands to the exclusion

of others.

2.4.5: Al-"Urf al-Shar"%

Al-"urf al-shar"% is a subset of al-"urf al-kh!&& and means a word or

statement used by shar$ intending by it a specific and particular meaning79.

Some examples are &al!h and 'ajj both of which had existed before Isl#m and

meant supplication and visiting a holy site, respectively. After Isl#m, their

connotations were rendered specific (kh#,,, or shar$") and made to mean

prayer as the Prophet demonstrated and pilgrimage to the holy cites of Mecca

and Madina with its attendant rites and rituals.

One important difference between al-"urf al-shar"% and the others (al-

"urf al-"!m and the rest of al-"urf al-kh!&) is the source. It is All#h’s

commandment to pray (iq!mat al-&al!h) and perform the pilgrimage ('ajj al-

bayt) as explained in the Qur(#n that gives &al!h and 'ajj, their new, specific,

legal meaning. The source of the other "urf, on the other hand, is human:

people’s usage and customs are the source of al-"urf al-"!m and non-shar"% "urf

kh!&&.

2.5: Linguistic Categorizations of al-"Urf al-Qawl'

Al-"urf al-qawl%, or customary speech, neccessarily has a relationship

to language. The nature of that relationship is the focus of this categorization.

79 Ab% Sinna, al-$Urf, 20, “huwa ‘l-laf) allahd% ista"malahu ‘l-shar" mur%dan minh( ma"nan kh!&&an”.

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The linguistic understanding of "urf can either confirm the linguistic meaning

of a term or phrase (al-"urf muqarririn li’l-lugha) or it can oppose it (al-"urf

q!din "al! ’l-lugha). For example, if one swears not to purchase ‘banafsaj’80,

and it is al-"urf al-qawl% of his land that this implies its pigment (or dah#n) he

would break his oath by buying its leaves. However, within the !anbal"

madhhab, there is a khil!f, or legal difference of opinion, on this matter: in

some lands where !anaf"s predominate, the term ‘banafsaj’ refers to the

pigment whereas in others, it implies the leaves.

So the same action can be both permissible and not permissible on the

basis of al-"urf al-qawl% al-kh!&& depending on what is linguistically meant

since the meaning of language is a function of society’s relationship to

language.

2.6: Summary

From this brief overview of custom as a source of law in fiqh, we see

that it was authorized by the textual evidence (both Qur$!n and 'ad%th) and

used by fuqah!$ of all four madh!hib in many situations. However, its

application was not consistent or structured in a comprehensive theoretical

structure and, therefore, posed a complex problem of consistency for legal

scholars. M.H. Kamal" encapsulates the essence of the situation of custom in

Islamic Law as follows,

As is the case with any legal source, there are certain conditions and restrictions which must be considered before custom can be invoked in a legal matter. The first condition to use customary practices is that there cannot be an authoritative text which gives guidelines on the matter at hand.

80 identify and explain the leaf/ dahan issue.

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The upshot of this whole debate over the authoritativeness of "urf seems to be that notwithstanding the significant role that it has played in the development of the shar%"a, "urf is not an independent proof in its own right. The reluctance of the "ulam!$ in recognizing "urf as a proof has been partly due to the circumstantial character of the principle, in that it is changeable upon changes of condition time and place. This would mean that the rules of fiqh that have at one time been formulated in the light of the prevailing custom would be liable to change when the same custom is no longer prevalent. The differential fat!wa that the later $ulam!$ of different schools have occasionally given in opposition to those of their predecessors on the same issue are reflective of the change of custom on which the fatw! was founded in the first place. In addition, since custom is basically unstable it is often difficult to ascertain its precise terms. These terms may not be self-evident, and the frequent absence of written records and documents might add to the difficulty of verification. The issue has perhaps become even more difficult in modern times. Owing to a variety of new factors, modern societies have experienced a disintegration of their traditional patterns of social organization. The accelerated pace of social change in modern times is likely to further undermine the stability of social customs and organizations. The increased mobility of the individual in terms of socio-economic status, massive urbanization and the unprecedented shift of populations to major urban centers, and so forth, tend to interfere with the stability and continuity of "urf81.

Looking ahead, in the next two chapters, we will examine how fuqah!$

took this problem on and began the process of establishing a theoretical

approach to customary usage in Islamic law. Chapter Three and Four are an

overview of how scattered applications of customary practice throughout the

first five centuries of Islamic jurisprudence began to crystallize into a theory

of the usage of custom as a central dominant principle, al-"!da mu'akkama, in

fiqh.

81 Please see Mohammad Hashem Kamal", Principles of Islamic Jurisprudence. (Cambridge: Islamic Texts Society, 1991) Revised Edition, 292-3.

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