The Mutual Relationship Between Custom (Urf) and Shari‘ah: A Research Review in the Light of Islamic Jurisprudence

Abstract

This paper looks at the reciprocal association among custom (ʿUrf) and Sharīʿah with respect to Islamic jurisprudence. In Islamic jurisprudence, ʿUrf is known as the generally accepted practices and tradition that are dominant in a society whereas Sharīah means the divine law which was given to the prophet Muhammad ﷺ by way of the Qurayas and the Sunni of the prophet Muhammad ﷺ. The paper has brought out the significance of custom as a secondary principle, which Islamic jurists have always appreciated in interpreting and applying Islamic law. Introducing social practices into the reasoning of law, jurists made sure that the Islamic law was adaptable and effective to the evolving situations still being able to keep the main principles of its application. The study examines the linguistic and juristic meaning of ʿUrf and explains its difference with other similar terms like habit (ʿĀdah). It addresses as well the major tenets of Sharīah, its origins, and maxims of law that govern the Islamic jurisprudence. They particularly focus on the status of ʿUrf in the four major Sunni schools of law- Ḥanafī, Mālikı, Shiafi, and Ḥanbalili- and how each of the schools integrates customary practices in the law decisions. The paper also classifies various kind of custom, such as general and specific custom, verbal and practical custom and valid (sa ḥih) and invalid (fasid) customs. The article also determines the circumstances in which custom may be regarded as a legally binding authority, where it should not be in conflict with the direct texts of both the Quran and Sunnah, it should be practiced generally and it should be present when the legal transaction occurred. In addition, the study examines how custom was applied in real life situations in trade, financial transactions, marriage and family issues. In conclusion the paper comes to the conclusion that although custom plays an important role in supporting the implementation of the Islamic law in various societies; it is still subject to Sharíʿah. In a case of tension between the customary and Godly law, Sharīʿah prevails. Such a balancing relationship guarantees the flexibility and sincerity of the Islamic jurisprudence when it relates to the modern issues of the society.

Keywords: Custom (ʿUrf), Sharīʿah, Islamic Jurisprudence (Fiqh), Legal Maxims, Islamic Legal Theory, Customary Law, Social Practices, Islamic Law, Fiqh Schools, Contemporary Islamic Issues.