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USUL FIQH : 'URF (CUSTOM)
Transcript of USUL FIQH : 'URF (CUSTOM)
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CONDITION OF VALID URF
1. Must represent a common and recurrent phenomenon
• Practice of a few individuals or a limited number of people will not be authoritative
2. Must be in existence at the time a transaction in concluded
3. In contracts and commercial transaction, must prevalent at the time the transaction is conclude, not an extinct customary practice or a later custom
4. Must not violate the clear stipulation of an agreement
5. Must not violate the nass (definitive principle of the law)
• Ex: the practice of riba in an transaction – although it is widely practiced, it has no legal validity
- ‘Keep to forgiveness, enjoins urf anfd turn away from the ignorant’ –Al A’raf: 199
- Al Quran also has considered some of the urf of the early Arab community as a legal basis in its law. For instance the principle of diyat, which was practiced in early community, has been approved by the Al Quran.
Reported by ‘Aishah r.a : “Hind, the daughter of ‘Utbah, wife of Abu Sufyan, came to Prophet s.a.w and said “Abu Sufyan is a miserly person. He does not give adequate maintenance for me and my children, but if I take from his wealth (some part of it), without his knowledge. Is there any sin for me?” thereupon, Prophet s.a.w said, “take from his property what is customary which may suffice you and your children”.
ISZAMEERA BT ISMAIL 1122472
NUR AMIRAH BT JAAFAR 1123152
NUR HAFIZAH BT MD RAZI 1127594
INTAN SHAFINAZ AZIRA BT AZIZEY 1122998
DIFFERENCES BETWEEN URF AND IJMA’
Urf in Usul defined as : "recurring practices which are acceptable to people of sound nature”
Types of Urf
Urf initially divided into Qawli (verbal) and Fili (actual).
Verbal Urf : consists of general agreement of people on the usage and meaning of words deployed for purposes other than its literal meaning.
Result- the customary meaning becomes dominant meaning and literal meaning is reduced to the status of an exception.
Eg : salah, zakah, and hajj (used in the Quran for purposes other than their literal meaning)
: lahm (meat). In its Quranic usage, it includes fish but in customary usage is applied only to meat other than fish.
Actual Urf is commonly recurrent practices accepted by the people.
Eg : give and take sale (bay al-ta’ati)
a. Al-Urf-al amm - practice of all people everywhere (however, such Urf is almost non-existent).
b. Al-Urf-al Khass - practice of a particular country or locality or some places. (the Urf which Usul most concerned)
Further types of Urf
Urf Qawli and Urf Fi'li are sub-divided into two types:
Urf has also been classified as :
Urf al Sahih (valid Urf - valid according to the Qur'an and the Sunnah)
Urf-al-Fasid (disapproved Urf, not valid according to the Qur'an and the Sunnah).
PROOF (HUJIYYAH) OF ‘URF
Sura al-A’raf (7:199) which means ‘keep to forgiveness and enjoin ‘urf, and turn away from the ignorant’.
Ulema have quoted the saying of the prominent Companion, ‘Abd Allah b. Mas’ud that ‘what the Muslims deem to be good is good in the sight of God’.
Critics ----> refers to the approval of ‘al-muslimun’, ----whereas ‘urf varies from place to place, and the approval of all Muslims in its favour cannot be taken for granted.---- ‘Muslimun’ in this context only denotes those among them who possess sound intellect and judgement, and not necessarily every individual member of the Muslim community.
Custom is basically unstable and it is often difficult to ascertain its precise terms. Some factors are;
Modern societies have experienced a disintegration of their traditional patterns of social organization
The accelerated pace of social change in modern times is likely to further undermine the stability of social customs and organisations
The increased mobility of the individual in terms of socio-economic status, massive urbanization and the unprecedented shift of populations to major urban centres
Development of statutory legislation as an instrument of government in modern times. The attempt to codify the law into self-contained statutes has to some extent reduced the need to rely on social custom as the basis of decision-making.