SBSM 1353

PRINCIPLES OF ISLAMIC JURISPRUDENCE (USUL FIQH)

TOPIC: ‘URF

THE NAME OF THE LECTURER:

MADAM SYARIPAH NAZIRAH BINTI SYED AGER

STUDENT NAME AND MATRIX NO:

NUR SYAHADA BT MAHAT (1832054)

SEMESTER SESSION:

SEMESTER 2 SESSION I 2022/2023

BACHELOR OF ISLAMIC FINANCE (BANKING) (HONS)

FACULTY MANAGEMENT AND MUAMALAH

 TABLE OF CONTENTS

NO CONTENT PAGES

1.
Table Of Content 2

2. 1.0 Introduction of ‘Urf 3

3. 2.0 Introduction secondary in Islamic law 4

4. 3.0 Definition of ‘Urf 5

5. The basis of ;Urf 6

6. Classification of ‘Urf 8

6.1 The Verbal (Qawli) and Practical ‘Urf

6.2 The General (‘Amm) and Particular (Khass) ‘Urf

6.3 The Valis (Sahih) and Invalid (Fasid) ‘Urf

7.
Conditions of Valid ‘Urf 10

8. Types of ‘Urf 12

8.1 Uruf Qawli (Usage)

8.2 Uruf Fi’li (Practice)

9. Conclusion 14

10. References 15

2
INTRODUCTION OF ‘URF

One of the important characteristics of Islamic Law is that some of its rulings can

change according to the changes of circumstances. For example, place, time, custom and the

behaviour of people. This is why it is possible for this law to be practised at any time and

place. However, there are some laws, which are fixed and cannot be changed. These are held

to be unchangeable because they are immutable and suitable to be implemented in all

situations.

‘Urf has played a significant role in the formation of Islamic Law. There are many

cases that indicate the change of law when the ‘urf of people has changed. For instance,

Imam Malik b. Anas, the founder of Maliki school, has considered the practice of al-Madinah

people (‘amal ahl al-Madinah) as a source of Islamic Law. This indicates the importance of

the ‘urf of al-Madinah people to him. Similarly, Al-Shafi’i has made ijtihad on many issues

that arose when he was in Iraq, but when he moved to Egypt he changed some of his earlier

opinions because of the different circumstances and customs in Egypt. Indeed, the Quran has

also considered some of the urf of the early Arab community as a legal basis in its law. For

example, the doctrine of qisas, which was practised in the early community, has been

approved by the Quran, albeit with some modification in terms of evidence and amicable

settlement.

As for the origin 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, which transfers and

implants it in the lives of people. Normally, these customs will be inherited by the next

generation until there come other customs that can overrule the earlier ones.1

1
Mohamad Akram Laldin (2006) Introduction to Shariah and Islamic Jurisprudence
(Malaysia)

3
INTRODUCTION SECONDARY SOURCES IN ISLAMIC LAW

There are two main sources of Islamic law that are commonly referred to by people,

namely the primary sources including the Qur'an and Sunnah and the secondary sources

which are Ijma, Qiyas, Ijtihad and Urf. First of all, the primary source is the Quran which is

one of the primary sources of Islamic law. It includes many commandments, rules for the

behaviour or relations of individuals in the society. The words of the Quran are final and

cannot be changed. The second one, sunnah. Sunnah is also equally important as

Quran where in terms of literal meaning, sunnah means a clear path. Sunnah refers to all that

is narrated from the Prophet, including his actions, sayings and whatever he has tacitly

approved which are not revelations of the Quran.

Next, the secondary sources are ijma means the consensus among Islamic jurists on

matters within the limits of Quran and Sunnah. Muslim jurists provide many verses of the

Quran that legitimize Ijma as a source of legislation. To illustrate, the institution of khilafat is

established on the basis of Ijma among the Islamic jurists. Second, qiyas is also one of the

secondary sources. It means to conclude general principles from the Quran and Sunnah to

generalise the Verses or Hadith. For instance, from wine, the jurists concluded that all thing

causing unconsciousness are prohibited by Islam. While Ijtihad is the interpretation of

principles and provisions of Quran and hadith by faqih or imam. We can find four imams who

formed different schools of thought by interpreting the Quran and Sunnah by study and

research. One school of thought believes that Ijtihad ended with the four pious caliphs while

others believe that it has not ended. Lastly, urf is the common practice among the Muslims as

their common habit. Another term synonym with urf is ‘adah’ means repetition or recurrent

practice of individuals or a group of individuals. and God on one hand and among the

individuals themselves.2
2
Koay Xian Lit (2019/2020) Introduction to Islamic Law (Universiti Utara Malaysia)

4
DEFINITION OF ‘URF

Urf is a noun of ayn, ra, fa, which literally means to know. As a conventional term,

various definitions of urf have been given by the Muslim jurists. Khallaf defines urf as,

“What is established and practised by people from their sayings and doings, or not doing. The

other definition is propounded by Badran who defines urf as “What is established and

common in a group of people (jumhur) from their savings and doings, and is consistently

repeated until it influences them and is therefore accepted by their reason”. He further quoted

that not all that is established and common can be considered as urf, but it is that which is

established and common to the people with wise reason and sound behaviour. Al-Zarqa has

defined urf as “The behaviour of a group of people in their sayings or doings”.

The above definitions indicate that in order for ‘urf to constitute a valid basis for legal

decision it must be the consistent practice of a group of people. Accordingly, the practice of

an individual is not ‘urf but it rather is a personal habit (adah fardhiyyah). Urf must also be

acceptable and reasonable. Hence, the practices that are devoid of benefits or involve

disadvantages are not considered as legal urf. The above definitions also indicate that there

are two main categories of urf. The first one is the doings of the group of people (urf amali)

and the second is the sayings of the group of people (urf lafzi).3

3
Mohammad Akram Laldin (2006) Introduction to Shariah and Islamic Jurisprudence
(Malaysia)

5
THE BASIS OF ‘URF

The majority of the scholars (jumhur) recognised urf as a supportive source of the

Shari’ah and they have quoted several proofs in order to support their view. Among the

proofs are the verse from Quran usually quoted in support of urf is “Keep to forgiveness,

enjoin ‘urf and turn away from the ignorant”. (Al-A’raf: 199) Many mufassirun suggested

that the meaning of urf in this verse is synonymous to ma’ruf which means anything that is

good. Mustafa al-Zarqa, in discussing the proof of uruf, maintains that the word urf in this

verse can be taken as a proof of urf through its literal meaning which is “the good deed which

is acceptable” albeit the meaning of the word urf here is different from its meaning as a

technical term in usul al-fiqh. He further argued that it could be a proof of urf (as a technical

term) in the sense that the customary practice of people, whether in their doings or their

transactions, is normally the practice that is good to them and acceptable by reason.

Among the familiar proofs that are quoted by the scholars as indirect evidence in

support of urf is the following saying of the prominent companion, Abd Allah b. Mas’ud said

“What the muslims deem to be good is good in the sight of Allah ''. Some of the scholars

have suggested this saying to be a direct hadith from the Prophet Himself. However, it is

more likely, as al-Suyuti mentioned in al-Ashbah wa al-Nazair, to be the saying of Abd Allah

b. Mas’ud. The proof that can be deduced from this quotation is that uruf, if not against

Islamic teachings, is normally considered as good practice to the Muslims and acceptable by

people and reason. Therefore, such a practice is accepted by Allah. So, it can be regarded as a

source of law in Islam.

The other hadith frequently quoted is the following hadith reported by Aishah r.a. She

said “Hind, the daughter of Utbah, wife of Abu Sufyan, came to Allah’s messenger and said

“Abu Sufyan is a miserly person. He does not give adequate maintenance for me and my

6
children but I am constrained to take from his wealth some part of it without his knowledge.

Is there any sin for me?”. Thereupon Allah’s messenger said “Take from his property what is

customary (ma’ruf) which may suffice you and your children. Ibn Hajar al-Asqalani, the

famous commentator on sunnah, comments on this hadith by saying that al-ma’ruf in this

hadith means the amount that is known to be enough by ‘adah. He further held that this hadith

too indicates that urf should be relied upon in matters where the Shara’ does not give the

exact details.

In addition to the above evidence, earlier and more contemporary scholars of Islamic

Law have agreed that urf is an important source in Islamic Law. They have not objected to

the role of urf in solving the problems that arise in Islamic Law. This is obvious in the past

and present literature of fiqh in which urf has been utilised by the jurists to solve many

problems of fiqh.4

4
Mohammad Akram Laldin (2006) Introduction to Shariah and Islamic Jurisprudence
(Malaysia)

7
CLASSIFICATION OF ‘URF

Islamic jurists have developed a classification of the different types of urf and have

divided them into various types. The classifications are the verbal (Qawli) and practical

(Amali) urf. The verbal urf consists of the general agreement of the people on the usage and

meaning of words for purposes other than their literal meanings. For example, verbal urf is

the usage of certain words among certain groups of people such as the usage of the word

‘doctor’. In a university setting this title normally refers to a person who holds the PhD

degree but to the lay person this word normally refers to a medical practitioner.

As for the practical urf, it consists of commonly recurrent practices of the people in

daily life and in civil transactions. Recurrent practices in normal daily life means the private

practices in life which have nothing to do with other people, such as eating, sleeping,

cultivating and other such matters. The recurrent practices in civil transactions refer to the

practices that are meant to avoid causes for legal disputes. This would normally involve two

contracting practices which are sales, rents, marriages and other similar contracts. For

example, of practical uruf which occurs in normal daily life is the people taking vacations

like the New Year Day. So, taking vacation on this day is considered as an urf for a certain

group of people and can be used by such a group every year. An example for practical urf that

involves transactions is the sale of offering and accepting. Similarly, customary rules

regarding the payment of dower in marriage may require a certain amount to be paid at the

time of contract and the rest at a later date.

Next, the general (‘Amm) and particular (Khass) urf. Urf, whether verbal or in

practice, is divided into two types which are general (al-‘urf al-‘amm) and particular (al-‘urf

al-khass). The general urf is the common custom which is prevalent everywhere among all

people in a matter regardless of the passage of time. An example of this is the contract of

8
istisna in many matters such as clothing, furniture. This type of contract is a necessity and is

commonly practised everywhere. The example for this type of urf is such as the practices

among the traders in wholesale trading which allow the payment of goods to be deferred to a

certain period of time which is not practiced in retail transactions. The usage of certain terms

among a certain group of people also can be included in this type of urf such as the usage of

the word ‘doctor’ as mentioned earlier.

Lastly, the valid (Sahih) and invalid (Fasid) urf. Finally, custom is once again divided

into valid (al-‘urf al-sahih) and invalid custom (al-‘urf al-fasid). The valid custom is the urf

that is practised by the people, which does not contravene the Shari’ah and deny the interest

of people and at the same time does not bring corruption. On the other hand, the invalid

custom is the custom that is practised by the people but there is evidence to show that it is

against the principles of Shari’ah or it denies the interest of people or it brings corruption. An

example of this type of urf is the practice of usury in transactions. Although it is common

among many people, it clearly contradicts the clear text of the Quran and sunnah. Therefore,

such transactions are invalid and must be avoided.5

5
Mohammad Akram Laldin (2006) Introduction to Shariah and Islamic Jurisprudence
(Malaysia)

9
CONDITION OF URUF

Muslim scholars have laid down the condition that must be fulfilled in a customary

practice in order to consider it was valid urf. Urf in order to be authoritative, must fulfil the

following requirements which is first urf must represent a common and recurrent

phenomenon. This means that the urf must be practised by the people commonly and

frequently in their daily life. In addition, the practices, which are commonly mentioned in the

book of fiqh, but practised by the people, cannot be the basis of a legal decision. An example

is that if a sale is concluded in a city where two or three currencies are commonly accepted

and the contract in question does not specify any, the one that is the more dominant and

common will be deemed applicable.

Second, custom in order to be authoritative, must also be dominant in the sense that it

is observed in all or most of the cases to which it can apply. If it is observed in some cases but

not in others, it is not authoritative. Similarly, if there are two different customary practices

practised by some people and not by some others, and the amount of both are equal, it cannot

be the basis of judicial decisions.

Third, the custom must be in existence at the time the transaction is concluded. This

means in order for urf to be considered as a basis of judicial decisions, the practice must be

prevalent at the time the transaction is concluded and not in extinct customary practice. This

condition is particularly relevant to the interpretation of documents or sayings, which are to

be understood in the light of the custom that prevailed at the time they were written or

uttered. As an example, if a person said that he intends to make a bequest (wasiyyah) of part

of his property to an ‘alim (scholar), and the customary meaning of this word at that time

refers to those who are experts in religious matter, part of his inheritance must be given to

those who are experts in religious matters, albeit, the same word might be used, customarily,

10
for people who are expert in any field and not necessarily to the expert in the religious matter.

Similarly in al-‘urf al-fi’li the customary practice considered is the practice that exists at the

time when the transaction was concluded. An example is that the determination of the date of

a transaction is considered according to the practice of the place, whether the Hijri (Islamic

calendar) date is used, or the Christian one. If the Christian calendar is used when the

transaction is concluded, that be referred to, although, after that it can be changed to the Hijri

calendar.

Fourth, the custom must not contravene the clear stipulation of an agreement. A

custom can only be applied if there is no contractual agreement made in a particular

transaction. This is because a custom is only an equivalent of an implied condition. It will not

be valid if it is contrary to an explicit condition. The general rule is that contractual

agreements prevail over customs. Should there arise a conflict between them, it will normally

be determined in the favour of the former. An example is that the costs of formal registration

in the sale of a real property are customarily payable by the purchaser. But if there is a

stipulation in the contract that specifically requires the vendor to bear these costs, then the

custom would be of no avail and the purchaser would not be required to pay these costs.

Finally, the custom must not be in conflict with the Quran or sunnah (nass). The

opposition of custom to the nass may be absolute or partial. In cases of absolute conflict, the

custom will have no effect because texts override customs. Examples of such conflict are the

practices of usury (riba). Although they are widely practised, they have no legal validity,

because they contradict explicit text. However, if the conflict between the custom and the text

is not absolute, where customs oppose only certain aspects of the text, then the custom is

allowed to act as a limiting factor on the text. 6

6
Mohammad Akram Laldin (2006) Introduction to Shariah and Islamic Jurisprudence
(Malaysia)

11
TYPE OF ‘URF

The word urf is usually associated with the word ma’ruf (good) in the texts. In this

sense, it is what the Shari’ah considers to be good, and not what human reason or the

prevalent practices consider to be good. If some of these practices are approved by the

Shari’ah, then they are acceptable to the law. The process of approval, prior to acceptance, is

necessary. There are different ways of classifying urf and each classification is intended to

bring out its nature. Uruf is divided, first into urf qawli (usage) and urf fi’li (practice).

Urf qawli or usage may be analysed into the following types. First, the meaning of

terms during the period of the Prophet (peace be on him). This is the usage that was prevalent

during the time of the Prophet. The meaning assigned to words at that period is used to

understand the true intention of the Lawgiver. Second, technical terms of the law or urf

shar’i. The jurists usually employ the term urf shar’I to denote the technical sense that a term

may have acquired in Islamic law. This technical meaning is usually different from the literal

meaning in which the term is used. Thus, the word “solat” means any type of prayer or

supplication, but in the technical sense it means the entire form of the prayer that has been

transmitted from the Prophet (peace be on him). The word riba literally means excess and in

general usage it means “interest” in the sense of sud in Urdu, but in the technical sense it has

a much wider and comprehensive meaning assigned to it by the Quran and the Sunnah. For

legal purposes, it is the urf shar’I that has to be followed.

Third, usage in a local area for the purpose of transactions. It is obvious that people

using languages other than Arabic, undertake their transactions in their own language. Islamic

law will recognise the meaning in such usage, but only if it conforms with the forms

prescribed by the law, that is if such use of words achieves the same purpose as the one

prescribed. If it does not, the law will declare it fasid. In other words, such usage has to be

12
measured against the permitted rules before it can become permissible. It will not be

recognised automatically. It is obvious that none of the above meanings can be called a

source of law in the sense that we understand custom to be a source in Western Law.

Next, urf fi’li (practice) is of three types which is the practices prevalent during the

period of the Prophet (peace be on him). These practices were either approved by the Prophet

(peace be on him), either expressly or tacitly or they were rejected. As such they became part

of the Sunnah. The source of the law here was not custom, but the Sunnah, even though

customs and practices did provide the raw material. Each practice was subjected to the norms

of the Shari’ah by the Prophet himself, and was either accepted or rejected.

Other than that, practices during the later periods. These practises were faced by the

jurists like new instances or cases and each one of them was subjected to scrutiny by the

jurists. The jurists either justified these practices in the light of the principles of Islamic law

or rejected them in the light of the same principles. No practice could automatically be

approved just because it was a long-standing custom.

Lastly, urf as a change in circumstances with the passage of times. This third type has

been emphasised by Ibn Abidin in his writings. The method discussed by him implies that

when circumstances change over time, there is a need to re-examine some of the rulings

issued by the jurists and to alter them according to the circumstances if necessary. Thus, the

later jurists permitted wages for the teachings of the Quran when the earlier jurists had not

allowed this. Imam Abu Hanifah had disallowed the contract of muzara’ah (sharecropping),

but his two disciples later changed the rule on the basis of the change in circumstances and

the need of the people and permitted this contract.7

7
Imran A.K Nyazee (2016) Islamic Legal Maxims (Pakistan)

13
CONCLUSION

'Urf and custom are still taken into account in giving fatwas and considerations in

order to preserve interests or problems, because part of the form of human problems is to

acknowledge something that has been their custom for many years and passed down from

generation to generation. These habits and practices are social behaviours that are difficult to

abandon. Therefore, the recognition is not absolute but is bound by conditions, not

contradicting the Islamic law. In other words, 'urf is one of the most important sources of law,

its strength is proved by the arguments of al-Quran, al-Sunnah and consensus, 'urf cannot be

used absolutely, in fact there are certain conditions that must be present. Making it a source of

law and indeed it cannot be disputed that 'urf has also acted as one of the Shariah laws

established for the benefit of all human beings and rejecting any evil that befalls them.8

8
Faculty of Islamic Studies (2009) Jurisprudence 2 (UKM Bangi, Selangor, Malaysia)

14
REFERENCES

1. Dr. Mohamad Akram Laldin (2008). Introduction to Shari’ah and Islamic Jurisprudence

(2nd edition). CERT Publications Sdn. Bhd. (612565-0) 277, Jalan Bandar II, Metro

Melawati, 53100 Kuala Lumpur, Malaysia.

2. Imran A.K Nyazee (2016). Islamic Legal Maxims. Center for Excellence in Research,

Head Office: No,103 Street 2, PTV Colony, Shahpur, Islamabad, Pakistan 44000.

3. Koay Xian Lit (2019/2020). Primary sources and Secondary Sources of Islamic Law.

https://www.studocu.com/en-us/document/universiti-utara-malaysia/introduction-to-islam

ic-law/primary-sources-and-secondary-sources-of-islamic-law/6154430

15