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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