Friday, March 28, 2014

Understanding the Role of Custom (‘Urf) In Islamic Law

By Adis Duderija, New Age Islam
28 March, 2014
The importance of custom (‘urf) in Islamic legal tradition is well recognized because of its direct connection with the critical issue of social change. Importantly, custom-based considerations permeate the various stages of the legal process and the role of custom is crucial for the interpretation of the textual sources, determination of their signification, and their scope of application.
Given the above, this article aims to provide a succinct discussion on what is the place of custom (’urf) -based considerations in Islamic legal thought, how do they affect the process of interpretation of the Qur’an and Sunna and  what was the approach taken by the Qur’an and Sunna in relation to the status of pre-Islamic customs?  
From the outset it is important o recognize that the emerging Qurʾānic worldview during the revelationary period was not completely divorced from its pre-Qurʾānic one. Although the Qurʾān is to be considered an independent ethico-religious and linguistic entity with its own worldview, it did not claim a complete worldview break with pre-Qurʾānic Arabia. Over the revelationary period of some two decades, the Qurʾān and Sunna( a concept present in the pre-Qur’anic Arabia as discussed here) either rejected, modified, condoned and/or  accepted the socio-cultural values and moral of Arabian tribal communionism of pre-Qurʾānic Arabia in accordance with the budding Qurʾānic ontological and ethico-religious value system. Hence, a study of the development of custom as an abstract tool in Islamic legal theory reveals that it originated in the two primary sources of the Qur'an and the Sunna of the Prophet.
Custom in classical Islamic law was considered as a source as long as it was viewed not to conflict with a higher source of the law (e.g. Qur’an and Sunna). Within this framework it was the specific legal context that would ultimately be determinative with respect to the admissible types of proofs or legal sources, which may, at times, be custom itself.
Before I examine the concept of ‘urf in the Qur’an and Sunna in more detail a brief definition of the term is in order. Etymologically, the word 'urf is derived from the root of the verb that means "to know” The word ‘urf is commonly used to mean two things: "what is known" as opposed to "what is unknown" and "what is good, wholesome or commendable.” Linguistically, 'urf refers to any common practice, whether good or bad. Juristically, it refers exclusively to the common practice which has been established as good by the testimony of reason and which has become acceptable to people's disposition.

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