The importance of custom (‘urf) in Islamic legal tradition

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By Adis Duderija

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.

The concept of ‘urf in the Qur’an is symbiotically linked to the concept of the good (Ma’ruf). And some exegetes argued that ‘urf can serve as source of not only legal but also moral normativity. The legal dimension of the concept of ‘urf in the Qur’an is usually traced back to 7:199 Muslim scholars have developed three main interpretations of the word ‘urf in this verse. i.) the most common one which means “what is good and commendable.” It this sense ‘urf refers to all the values and actions which are deemed praiseworthy and good by Shari’a; ii.)  “What is known and accepted as a good common practice”; iii.) “What is known to be important and necessary.

The word Ma’ruf   in the Qur’an has the meaning of goodness, kindness, benevolence as well as a recognized norm or an ethical value used to interpret divine injunctions.  Importantly, reference to ‘urf in the Qur’an is often employed in its implicit meaning. This is because the nature of the Qur’anic injunctions that have legal implications, most of which are generalist in nature. Hence, Qur’an   assumes that these injunctions will be interpreted /understood in the light of prevalent customary and commonly recognized practices and values.

The concept of ‘urf also permeates the Hadith literature and the approach taken by the Prophet to it is in complete accordance with the attitude of the Qur’an explained above In terms of the relationship between the sunna of the Prophet (in his role as a carrier and communicator of revelation) and pre-Islamic customs, we can speak about three types of sunna; affirmative, reformative, and prohibitive. First category involves the pre-Islamic customs that were approved and transported into the Islamic system with slight or no modification. The adoption of these customs could have been negotiated through express commands or tacit approval of the Prophet. As a general rule, all the pre-Islamic customs that did not contradict any of the tenets of Shari’ah were automatically approved and allowed to continue.  Hence, custom in its affirmative and reformative kind was integrated into Islamic law by identifying it with Sunna or later with Ijma. Importantly before the body of Hadit was canonized in the 11th century Hijri, there was in fact no need to accept custom as a formal source of law, for custom could still become part of Sunna by finding expression in Hadīt̲h̲.

The concept of custom was present in and has   entered the Islamic legal tradition   through a number of other legal mechanisms including Qiyas, Istadlal, Istisān, DarūraTakhsis, as well as in form of legal maxims and in the context of discussions surrounding the Maqasid al Shari’a approaches to Islamic law and legal theory.  The concept of ‘urfwith its pre-Qur’anic origins, like other concepts such as Ma’ruf, Ihsan, Munkar, or sunna itself, was evaluated and filtered   by the emerging Qur’an-Sunna worldview as well as the subsequently developed legal tradition in order to separate those customary practices and values which were considered to be in line with this new worldview from those which were not as understood by those who were in charge of formulating the Islamic tradition.  This process of separation however, was subjective and based upon a particular understanding of and interpretation of the Qur’an and Sunna. Importantly, many of the customs that the classical jurists did approve were based on medieval societal values, ways of life and views of what it means to be a male or female (including male and female sexuality) that have found expression in concepts such as male sexual jealousy and honour, men absolute guardianship over women and women as embodiments of   socio-moral chaos to name but a few.

These ‘urf based assumptions that have been incorporated into classical Islamic law must be reevaluated on the basis of a new interpretation of Qur’an and Sunna guided by  contemporary societal values and ethics that reflect the nature of contemporary societies  and which are divorced from their medieval understandings.

In summary, for the purposes of our present article, it is important to highlight that not everything that was incorporated into Islamic law was completely new to the seventh century Arabian environment. Some of the existing customs were approved and continued while others were condemned and discontinued. This was an attitude that guided the jurists’ efforts to implement Islamic law across the different socio-historical contexts. However, what the jurists considered to be acceptable customs and what were not were based upon jurists’ own interpretation of the Qur’an and Sunna (or adherence to a particular Madhhab-based Qur’an-Sunna hermeneutic) and certain values and theories regarding for example what it means to be a male or a female. These efforts of jurists might (or might not) have made sense in their own socio—historical contexts. But to continue to uncritically apply them to our contemporary contexts is in many cases not warranted. Hence the question of ‘urf in Islamic law must be constantly evaluated on the basis of  the existing social reality and social change to which Islamic law must respond on the basis of  what is considered to be fair and just in the contemporary context.

Source: http://newageislam.com/islamic-society/d/66314

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