Copyright Mohd Zulkifli Muhammad 1 AFS2023 USUL FIQH/ISLAMIC JURISPRUDENCE URF (CUSTOM) 5/16/2015
Copyright Mohd Zulkifli Muhammad 2 Contents Introduction Conditions of Valid ‘Urf Types of ‘Urf / Custom: 5/16/2015
Copyright Mohd Zulkifli Muhammad 3 Introduction As a noun derived from its Arabic root 'arafa (to know), 'urf literally means 'that which is known'. In its primary sense, it is the known as opposed to the unknown, the familiar and customary as opposed to the unfamiliar and strange. `Urf and 'adah are largely synonymous, and the majority of ulema have used them as such. 5/16/2015
Copyright Mohd Zulkifli Muhammad 4 Introduction 'Urf is defined as 'recurring practices which are acceptable to people of sound nature.' This definition is clear on the point that custom, in order to constitute a valid basis for legal decisions, must be sound and reasonable. Hence recurring practices among some people in which there is no benefit or which partake in prejudice and corruption are excluded from the definition of 'urf. 5/16/2015
Copyright Mohd Zulkifli Muhammad 5 Conditions of Valid ‘Urf 1) `Urf must represent a common and recurrent phenomenon. The practice of a few individuals or of a limited number of people within a large community will not be authoritative, nor would a usage of this nature be upheld as the basis of a judicial decision in Shari'ah courts. Example: when a person buys a house or a car. 5/16/2015
Copyright Mohd Zulkifli Muhammad 6 Conditions of Valid ‘Urf 2) Custom must also be in existence at the time a transaction is concluded. In contracts and 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. 5/16/2015
Copyright Mohd Zulkifli Muhammad 7 Conditions of Valid ‘Urf 3) Custom must not contravene the clear stipulation of an agreement. The general rule is that contractual agreements prevail over custom, and recourse to custom is only valid in the absence of an agreement. 5/16/2015
Copyright Mohd Zulkifli Muhammad 8 Conditions of Valid ‘Urf 4) Custom must not violate the nass, that is, the definitive principle of the law. The opposition of custom to nass may either be absolute or partial. If it is the former, there is no doubt that custom must be set aside. 5/16/2015
Copyright Mohd Zulkifli Muhammad 9 Conditions of Valid ‘Urf Examples: the practice of usury (riba). Another example: the Prophet is said to have forbidden conditional sale, that is, sale with conditions that may not be in agreement with the nature of this contract. 5/16/2015
Copyright Mohd Zulkifli Muhammad 10 Types of ‘Urf / Custom: 1) Verbal ‘Urf (Qawli): consists of the general agreement of the people on the usage and meaning of words deployed for purposes other than their literal meaning. 5/16/2015
Copyright Mohd Zulkifli Muhammad 11 Types of ‘Urf / Custom: As a result of such agreement, the customary meaning tends to become dominant and the original or literal meaning is reduced to the status of an exception. Example: the word Zakat. 5/16/2015
Copyright Mohd Zulkifli Muhammad 12 Types of ‘Urf / Custom: 2) Actual `urf (fi’li): consists of commonly recurrent practices which are accepted by the people. An example of actual 'urf is the give-and-take sale, or bay' al- ta'ati, which is normally concluded without utterances of offer and acceptance. 5/16/2015
Copyright Mohd Zulkifli Muhammad 13 Types of ‘Urf / Custom: *`Urf, whether actual or verbal, is once again divided into the two types of general and special: al-urf al-`amm and al-'urf al-khass respectively. 5/16/2015
Copyright Mohd Zulkifli Muhammad 14 Types of ‘Urf / Custom: 1) General ‘Urf (al-urf al-`amm): is one which is prevalent everywhere and on which the people agree regardless of the passage of time. Example: bay al- ta'ati and the customary practice of charging a fixed price for entry to public baths. 5/16/2015
Copyright Mohd Zulkifli Muhammad 15 Types of ‘Urf / Custom: 2) Special ‘Urf (al-'urf al-khass): is prevalent in a particular locality, profession or trade. By its very nature, it is not a requirement of this type of 'urf that it be accepted by people everywhere. 5/16/2015
Copyright Mohd Zulkifli Muhammad 16 WALLAHU ’ALAM THANK YOU VERY MUCH FOR YOUR ATTENTION 5/16/2015