‘URF (CUSTOM)

DEFINITION
• Literal : - to know, which is known.
– It is the known as opposed to the
unknown, the familiar and customary
as opposed to the unfamiliar and
strange.
– a collective practice by a large number
of people that is normally referred to
as ‘urf.

• Syarie/Technical : recurring practices

that are acceptable to the people of
sound nature.
 PROOF (HUJJIYAH) OF ‘URF
• (Surah Al Hajj : 78)
“God has not laid upon you a hardship in religion”.
– it is argued that ignoring the prevailing ‘urf which does not conflict with the
nass of syariah is likely to lead to inflicting hardship on the ppl which must be
avoided.

• (Surah Al A’raf : 199)

“keep to forgiveness & enjoin ‘urf & turn away from the ignorant.”

• (Hadeeth)
– narrated by Abdullah b. Mas’ud :
“What the Muslim deems to be good is good in the sight of God.”

• (Logic)
- due to the development of statutory legislation as an instrument of
government in modern times,‘urf became a supplementary source of law in the civil
codes of many Islamic countries of today. It has become authoritative in the absence of
a provision in the statute concerning a particular dispute.
 CONDITIONS OF VALID ‘URF

 It must represent a common and recurrent

phenomenon.
 It must be dominant in the sense that it is
observed in all or most of the cases to which it
can apply.
 It must be established at the time a legislation
or transaction is concluded.
 It must not contravene the clear stipulation of an
agreement.
 It must not violate the AQ or Sunnah.
 Firstly, urf must represent a common and recurrent
phenomenon. The practice of a few individual or
limited numbers of people within a large community
will not be authoritative. Urf can only be applicable
if the custom is of regular occurrence. For example,
in online shopping, when the seller does not display
the price of the item, it means that the price of the
item is subject to negotiation. Therefore, it has been
a common practice via online shopping that the
buyer must request for the price in a private
conversation.
 Second, urf must 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 only in
some cases, it is not authoritative. If there is 2
practicing custom, the one which is dominant
is to be applied. For example, if there is a
dispute regarding the use of currency in a
country which accepts 2-3 currencies, the
case will be settled in the light of the
dominant usage, that is, more widely used
currency.
Third, urf must be established at the time of legislation or deals.
In commercial transactions, effect is given only to customs,
which are prevalent at the time the transaction is concluded, and
not to customs of subsequent origin. To arrive at the implication
of sharī‘a texts, it is imperative that their connotation must be
understood according to the literal meanings and usage of the
(relevant) time. It is the same that is intended by the lawgiver.
For example, a phrase ibn al-sabīl occurs in the Holy Book.
Arabs would, in society, use the phrase for a wayfarer. Now
some words and phrases in texts are not understood the way
they were understood fourteen hundred years ago in Arabia.
Nowadays ibn al-sabīl is a boy whose parents are known. To
interpret the texts, the modern usage will not be taken into
account, rather the texts will continue to be used in the sense
they were understood when they came into existence.
Because of the new usage of later times, the words (of the divine
texts) will not change their meanings. Other wise legal texts will
have no meanings assigned to them.
Forth, it 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.
The general rule is that contractual agreements prevail
over custom and recourse to custom is only valid in the
absence of an agreement, since contractual agreements
are stronger than custom. For example, the dowry which is
divided into 2 parts, one of which is paid at the time of the
marriage and the other of which is delayed until late. If a
case arises in which it has been stipulated the dowry must
be paid at once, thus the custom of such dividing dowry
cannot be applicable. Another example, if a business deal
is concluded and payment is made in cash, but both the
parties agree on installments, this contract will be sound,
and the usage will not be taken into account. In similar
manner, if a custom in a region dictates that the expenses
of registry are on the buyer, but both the parties agree
that they will be on the seller, the contract will take effect,
and the common practice will not affect it.
 Fifthcondition for the validity of legal
customs is that they are reliable only when
they do not disagree with sharī‘a texts.
 The customs that violate the principles of the
Quran and Sunnah are not valid. For example,
the practice of usury and prostitution.
 JUSTIFICATIONS OF ‘URF
 Jurists accepted ‘urf as an important and valid criterion for purposes of
interpreting the unclear text of either the Quran or Sunnah

Eg: AQ commentators have referred to ‘urf in determining the precise amount of

maintenance that the husband must provide for his wife :

(Surah Talaq: 7) : “Let those who possess means pay according to their
means.”
• this verse didn’t specify the exact amount of maintenance, which is then
determined through ‘urf.

(Surah Al Baqarah : 233) : “The mothers shall give suck to their children
for two whole years, (that is) for those (parents) who desire to complete the term of
suckling, but the father of the child shall bear the cost of the mother's food and
clothing on a reasonable basis. No person shall have a burden laid on him greater
than he can bear. No mother shall be treated unfairly on account of her child, nor
father on account of his child. And on the (father's) heir is incumbent the like of that
(which was incumbent on the father). If they both decide on weaning, by mutual
consent, and after due consultation, there is no sin on them. And if you decide on a
foster suckling mother for your children, there is no sin on you, provided you pay
(the mother) what you agreed (to give her) on a reasonable basis. And fear Allâh
and know that Allâh is All-Seen of what you do.”

– it is about the maintenance of children by the father which is also

determined by ‘urf.
 “Urf is used in the determination of Shariah legal rulings. The
rule which is based on juristic opinion has often been formulated
in the light of the prevailing custom; therefore it is permissible to
depart from them if the custom on which they were founded
changes in course of time. For example, the contract of istisna’ or
online shopping. In a hadith of PM – “PM prohibited the sale of the
non-existing object but allows salam (an advance sale in which
price is determined but the delivery of an item is postponed).”
Thus, in current times, online shopping is permissible

 ‘Third, urf is accepted during the Prophet’s lifetime since the

urf of Arabs is not overruled by PM. However, it has received
tacit approval (Sunnah Taqriri) from PM. Islam accepted to amend
and regulate some of the Arab customary laws to bring them in
line with the principles of the Shariah. For example, the
requirement of equality (kafa’ah) in marriage has its roots in the
pre-Islamic customs of the Arabs. It is recommended for Muslims
to choose of spouse based on 4 requirements which are religion,
lineage, property, and beauty. However, the most important
characteristic is the religion.
“We used to do so and so while the Prophet was alive”.
Eg : advance sale(bai’ salam), mortgage (rahn).
TYPES OF ‘URF

1. ‘Urf Qawli (Verbal)

2. ‘Urf Fi’li (Actual)
3. ‘Urf ‘Amm (General)
4. ‘Urf Khass (Particular)
5. ‘Urf Sahih (Valid)
6. ‘Urf Fasid (Invalid)
There are various types of urf that has been widely
applicable and not applicable towards the Muslim
community:

First, is the urf Qawli (verbal) which consists of general

agreement of the people on the usage and meaning of
words positioned for purposes other than their literal
meaning. In other words, by popular usage, a word is used
to denote meaning that is different from its literal
meaning. The customary meaning to the word becomes
dominant over the literal meaning. For example, word
solat carries a literal meaning of Du’a which means prayer
or request. However, in the Quran it is to describe the
obligatory ritual prayers of the Muslims. This second
usage eventually became dominant on as far as the literal
meaning of this word is reduced to obscurity. Other
example, Lahm in the Quran refers also to fish but
customarily it refers to meat other than fish.
 Second, is the urf fi’li (practical) which
consists of commonly recurrent practices of the
people in daily life and in civil transactions. This
would normally involve two contracting parties
such as in sale or marriages contracts. For
example 1, in a give and take sale (bay’ al-ta’ati)
it is normally concluded without utterance of
offer and acceptance. For example 2, in practice
of people in certain places, they take on the
New Year day. Therefore, taking vacations on this
day is considered as urf for a certain group of
people and can be used by such a group every
year.
 Third, is the urf al-amm (general) which
consists of the common custom that is prevalent
everywhere among all people in a matter
regardless of the passage of time. For example,
in a give and take sale (bay’ al-ta’ati) it is
normally concluded without utterance of offer
and acceptance. Other example, Malaysians
enter homes taking off shoes outside their
homes but not to Westerners.
Fourth, is urf al-Khass (special) which is prevalent
in a particular locality, profession, or trade. This type
of urf is accepted by the people in a particular place
and not in all places. For example, the practices
among the traders in wholesale trading which allow
the payment of goods to be delayed to a certain
period, which is not practiced in retail transactions.

Fifth, is the urf sahih (valid) that is practiced by

the people, which does not contravene and does not
deny the interest of people and it does not bring
corruption. For example, Daabah in the Quran refers
to all creatures including human beings. Customarily
it refers to four-legged animals.
 Lastly, urf fasid (invalid) that is practiced by
the people but there is evidence to show that is
against the principles of Shariah it denies the
interest of people or it brings corruption. For
example, is the practice of usury in transactions
(paying interest to the customer). Although it is
common among many people, it contradicts
the text of the Qur’an and Sunnah. Therefore,
such transactions are invalid and must be
avoided.