Consideration of 'Urf in the Judgments of the Khulafa' al Rashidun and the Early Fuqaha'
Urf (custom) and ‘adah (tradition) are very ancient and important sources of Islamic law. As the pre-Islamic Arabs had no written documents or script, their social systems were regulated by custom and tradition. According to the available historical accounts, the khulafa’ al rashidun retained many pre-Islamic social customs and traditions and also adopted and established some useful nonindigenous customs. Such borrowing was quite acceptable in their eyes, for the Prophet himself had acknowledged the validity of some pre-Islamic customs that were compatible with the letter and spirit of the revelation.
At the time of the Prophet, the Arabian peninsula was the home of many different customs and traditions. The Arabs were mainly idol worshippers, and this outlook was reflected in their customs. However, they had also retained a portion of the legacy of Ibrahim: ceremonies related to the Ka’bah and circumcision. These ceremonies provided the basis for the establishment of social traditions.
Many pre-Islamic customs were still practiced during the period of the khulafd’ al rashidun. For instance, grain (i.e., wheat, barley) continued to be regarded as kayli (measured by capacity) and gold and silver were considered wazni (measured by weight). The same custom and, usage were followed in commercial transactions made by the Prophet his four immediate successors. The fuqaha’ later based many of the rules concerning zakah (poor due), sadaqah (charity), and kaffarah (expiation) on the customary practice of measurement by these five individuals. In addition, all types of pre-Islamic commercial transactions (buyu’) that did not violate any Islamic principle were kept. For example, Bukhari states that bay’ al salam (futures) was practiced in Madinah before the hijrah and throughout the Rashidun period. While ‘Umar ibn al Khattab did not allow this practice when it came to selling fruits that had not yet appeared on trees, ‘Ali ibn Abi Talib is reported to have personally engaged in this practice. For example, he sold his camel, ‘Usayfir, with twenty other camels on the understanding that he would be paid after a certain period fixed by both parties. ‘Abd Allah ibn ‘Umar is also reported to have used this procedure when dealing with animals. Qadi Zadah relates, on the authority of ‘Abd Allah ibn Abi ‘Awfa, that bay’ al salam was practiced during the time of the Prophet, Abu Bakr, and ‘Umar as regards the selling of wheat, barley, dates, and raisins. These were allowed on the basis of ‘urf, despite the fact that the fuqaha’ differ on the details and the different types of transactions. The only specifically forbidden customary transactions were those involving usury or risk (gharar) for either party.
Abu Bakr and ‘Umar also practiced the pre-Islamic customs of hiring and renting. Waki’ mentions that the latter hired a horse on the condition that one of his friends would also ride. When the owner’s horse was injured, he demanded that ‘Umar pay compensation. ‘Umar asked him to nominate an arbitrator (hakim) to settle the dispute in accordance with the common pre-Islamic practice. Although a hakim had no authority, to implement the decision, both parties were morally bound to accept it. The owner nominated Shurayh, a suggestion which ‘Umar accepted. And, when the verdict went against ‘Umar, he complied and paid the amount requested.
The historical records show that when the Prophet and Abu Bakr migrated to Madinah, they hired a person to guide them. During the time of ‘Umar, ijarah (hiring) was very common. People used to hire homes, lands, and animals for travelling as well as skilled people to manufacture their necessities. ‘Umar ibn ‘Abd al ‘Aziz, according to Abu ‘Ubayd, employed Yazid ibn Abi Malik al Dimashqi and al Harith ibn Yamjud al Ash’ari to teach the people, of rural areas. ‘Umar employed thirty teachers of the Qur’an in Madinah and fixed their monthly salary. Thus we find a gradual development from custom to legal institution. The fuqaha’ discussed the rules and regulations related to hiring and then outlined its lawful and unlawful forms.
The customary practice of setting up a limited partnership (mudarabah) was also considered legal. Imam al Shafi’i relates that ‘Umar and ‘Ali preferred to invest the wealth of orphans in such an undertaking, as they viewed it as a good management technique. This might be why al Nakha’i recommends that the guardians of orphans invest their wards’ wealth in either a mudarabah undertaking or in some other profitable business. ‘Uthman ibn ‘Affan, an experienced trader, made a mudarabah agreement with ‘Abd Allah ibn ‘Ali, and ‘Abd Allah ibn Mas’ud is reported to have made one with Zayd ibn Khulaydah. The fuqaha’ soon developed this traditional practice into a legally defined institution with the necessary terms and conditions for its different branches.
Imam Malik narrates some of ‘Umar’s ‘urf-based judgments. One example is the payment of blood money, which continued to be based on the prevailing custom. He made a distinction between people who used gold and those who used silver. Those who used gold had to pay a fine of approximately one thousand dinars (a dinar was a gold coin), while those who used silver had to pay approximately twelve thousand dirhams (a dirham was a silver coin). These coins, mentioned quite often in both fiqhi and early hadith literature, were in circulation in the urban areas and were probably minted in such neighboring countries as Persia. According to Malik, the Syrians and Egyptians used gold in their commercial transactions, while the Iraqis used silver. Such usage might have been influenced by the traditions of the Persian and Byzantine empires.
Malik also elaborates on the payment of blood money. He says that payment is to be made in the currency used by the people. For those who still deal in a cashless economy, namely those in the rural areas, payment is to be taken from their real wealth: their camels. Al Shaybani relates that ‘Umar laid down the following payments: one hundred camels for those whose wealth was in camels (ahl al ibil), ten thousand dirhams for those who used silver (ahl al waraq), one thousand dinars for those who used gold (ahl al dhahab), two thousand one-year-old sheep for those whose wealth was in sheep (ahl al sha’), two hundred cows for those whose wealth was in cows (ahl al baqar), and two hundred dresses for those whose wealth was in clothing (ahl al hullah).
Under the Prophet and Abu Bakr, blood money was paid only in the form of camels, as that was the existing custom. At the time of ‘Umar, however, urbanized people had started to participate in a monetary economy. Observing this change, ‘Umar amended the blood-money payment rule to fit the new conditions. Recognizing the validity of the traditional way for those who were still conducting their business affairs on a monetary basis, he allowed the traditional method of payment to continue.
Abu Hanifah says that ‘Umar initially determined the currency in which the payment was to be made on the source of a person’s wealth. But after he established the diwan system and prescribed stipends for the people from the bayt al mal (treasury), he ruled that such payments would thereafter be payable only in dirhams, dinars, and camels. It appears that the reason for this change was that these three items had by that time emerged as the real wealth of the people.
The Hanafi and Maliki fuqaha’ might have taken the idea of using custom as a guiding principle for legislation along with the understanding that when the prevailing custom changes, the rules must also change. If the particular custom does not change, it remains decisive.
We also have evidence that the khulafa’ al rashidun accepted useful practices and customs from outside of their own communities. An example of this is the implementation of the ‘ushur and the diwan system”. Most sources agree that ‘Umar introduced the system of kharaj , for before his rule there was no kharaj in the classical fiqhi sense of land tax. This was a custom borrowed from the Persians and the Romans. Tabataba’i says that after its introduction and adoption, it generally followed the Sassanid practice, especially in the eastern provinces. Morony says that the Sassanid financial bureaus, diwan al kharaj and diwan al nafaqat, were maintained in Iraq after that area’s incorporation into the Muslim realm. Abu ‘Ubayd relates that the khulafa’ al rashidun allowed the inhabitants of these conquered lands to live in their own territories and to conduct their affairs according to their own faith and traditions.
Another pre-Islamic custom sanctioned by the early Muslim rulers was that of qasamah. This penalty was paid by the male members of the tribe in the case of murder. Under ‘Umar and his new diwan system, the blood money was to be paid by the people sharing in the diwan in which the murderer had been registered.
‘Ushur, a traditional tax levied on merchants in non-Islamic lands, was implemented by ‘Umar after he was informed of its usage in other lands by Abu Musa al Ash’ari. The merchants of Manbij wanted to market their merchandise in Islamic lands and so asked ‘Umar for permission on the ground that they would pay ‘ushur. ‘Umar consulted the Companions, and they agreed to accept the proposal and recommended that ‘Umar implement this tax throughout the empire. ‘Umar allowed the merchants of Manbij to market their wares and appointed Ziyad ibn Hudayr al Asadi as tax collector in Iraq and Syria.
Diwans (public registries) were also established according to the Persian tradition. Al Mawardi states that once when ‘Umar received a large, amount of sadaqah from Bahrain, he consulted the Companions on how it should be managed. One Companion, Hurmuzan the Persian in one report, was familiar with the Persian diwan system and explained it to ‘Umar. Khalid ibn al Walid, who was also at this meeting, related what he had seen in Syria, where apparently the Byzantine rulers had their own diwan system. ‘Umar approved these proposals and established the diwan system in Madinah.
Abu Hilal al ‘Askari (d. 295 AH) mentions another pre-Islamic custom that survived due to its usefulness to the people: the lighting of a fire at Muzdalifah, the ceremonial station east of Makkah, during the rites of pilgrimage. The object of this tradition, according to al Qalqashandi, was to direct the pilgrims from ‘Arafah to Muzdalifah. This custom was maintained by the khulafa’ al rashidun and their successors for a long time. The custom of lighting a fire at Muzdalifah was not important from a strict legal point of view; what was important was that it exemplified the significance of taking care of the public interest even in the observance of purely religious obligations.
Similarly, the seasonal markets held by the Arabs during the pilgrimage were also maintained during the early Islamic period. Some Companions had stopped trading in these traditional markets because of their association with pre-Islamic customs. But such a precaution was made unnecessary by the revelation of the verse, “It is not an offense for you to seek the bounty of your Lord (by trading),” which made it clear that there was nothing wrong with engaging in trade and the seasonal markets during the Hajj . The trade carried out at the markets of ‘Ukaz, Majannah, and Dhu al Majaz had tremendous economic significance and was a major means of increasing the people’s prosperity. As Islam encourages trade and the sale of merchandise, there was therefore no reason to forbid this useful pre-Islamic custom.
Views of the Fuqaha’
The fuqaha’ fully understood the need to reconcile the space-time requirements of the Shari’ah. They developed elaborate methods of ijtihad that provided a great deal of flexibility within Islam’s normative framework. As a result, ijtihad acted as a mechanism for engendering continuous progress and development in all spheres of life. This practice arose in order to cope with existing realities and due, to Islam’s emphasis on development and progress and opposition to inertia and stagnation.
The fuqaha’ defined ‘urf as a recurring practice that has been established among the people and is acceptable to those of sound nature (al tabiah al salimah) and used it as a guiding principle in their deliberations. These customary principles were seen as secondary, as opposed to primary, sources of law that could be applied only when the primary sources had nothing to say about the issue in question. Several others were also used as synonyms: ‘adah, ta’amul , and ‘amal. .
The fuqaha’ laid down several conditions that had to be met if the ‘urf in question was to be acceptable:
a) It must not contradict and violate any nass (text). For example, usury or the drinking of wine, even if found throughout a given society, can never be legally valid. The fuqaha’ do not consider such ‘urf when they are formulating the rules;
b) It should exist at the time of contract or commercial transaction. If it came later, it cannot be considered; and
c) It should be general and universal instead of belonging to a particular locality or people (‘urf al khass). This last condition is subject to dispute, for Abu Yusuf and some Hanafi fuqaha’ regarded it as authoritative.
The Hanafi and Maliki fuqaha’ understood the social and political significance of ‘urf and thus stressed it more than the other schools. They applied the doctrines of istihsan and al masalih al mursalah to accommodate pre-existing jahili customs that were in accordance with Islamic principles. While discussing the principles of ‘urf and ‘adah, al ‘Amidi specifically refers to the Hanafi doctrine of istihsan. For example, in the case of using public bathhouses, there is no discussion or formal mention of the exact amount of water to be used, the period of time, or how the payment is to be made, for, according to the Hanafi jurists, all of these are known to the patrons. As this is the case, there is no need for qiyas (analogy) or to spell out such rules before entering the facility.
Abu Hanifah is reported to have said that ‘urf determines and interprets the actual meanings of terms commonly used in a society. However, custom has no legal effect if it is contradicted by a nass. The taking of an oath is based on this principle, for ‘urf, not the original or the literal meanings, determines the meaning of the words used when taking an oath. For example, if a person swears that he/she will not drink water and then drinks nabidh (dates or raisins left in a waterskin long enough to produce sweetened water), he/she has not broken his/her oath, because, according to ‘urf, the word “water” is never applied to nabidh . Another example is seen in the case of business partners. The travel-related expenditures of an active partner (mudarib) when he/she travels for business purposes are determined, in the absence of a signed contract, according to the prevailing custom.
Fiqh literature is full of examples where custom has served as a source of law. Its decisive role is particularly apparent in chapters dealing with sales, representation and agency, marriage, divorce, oath-taking, and sharecropping contracts. In the words of Schacht, custom is recognized as a restrictive element in dispositions and contracts and as a principle in interpreting declarations. He cites contracts related to manufacture and the hiring of the services of a wet nurse as being valid insofar as they are customary. The same is true in the case of determining what items are suitable for waqf donations. Such donations usually involved immovable property, but movable property (i.e., books) was also accepted if it was in line with the prevailing custom. Abu Hanifah would give up qiyas only in preference for ‘urf. For instance, if a person bought a camel-load of firewood, the merchant is responsible, by custom, for transporting it to the buyer’s home. Qiyas would allow this only on the condition that it had been specifically mentioned in the purchase contract. If such were not the custom, qiyas would be required.
Similarly, al Shaybani considers custom to be a source of law, particularly in the realm of international law. Some of his assertions became very popular and were widely adopted by the fuqaha’. For example: “‘urf is decisive:” “evidence from custom is like that from nass“; “what is known by ‘urf is like the condition laid by the nass“; “a general statement may be specified by the evidence of custom”; “the usage is decisive when there is no contrary statement in the text”; and “the usage is valid to particularize a general rule.” Ibn ‘Abidin, perhaps the first Hanafi jurist to deal specifically and exclusively with this subject, repeats these maxims in his Nashr al ‘Arf fi Bina’ Ba’d al Ahkam ‘ala al ‘Urf, in which he deals with most of the fiqhi issues based on ‘urf and ‘adah. Ibn Nujaym, another Hanafi faqih, also discussed ‘urf at length, but he followed al Suyuti in both style and methodology.
The Maliki jurists also accept custom and usage as sources of decisive authority. This is reflected in such Maliki treatises as al Muwatta’, al Mudawwanah, and Fath al ‘Ali- al Malik (a collection of Maliki fatawa compiled by Muhammad Ahmad ‘Ulaysh [d. 1299 AH]). The early Maliki scholars did not pay a great deal of attention to the admission and discussion of the legal role of custom and usage. Those in North Africa applied ‘amal in a broad sense; they included the ‘urf and ‘adah of all nations and areas. According to Coulson, the concept of ‘amal developed from the center of Qayrawan and was consistently applied in practice by the qadi.
All of the major legal schools take local custom into consideration. The Maliki school, however, emphasizes the practice of the people of Madinah and say that it is such a strong source that it takes precedence over a hadith that has been transmitted by a single person. In other words, it has the same force as ijma’. According to Hasan’s analysis of Malik’s concept of ‘amal, Malik refers to three types of agreed-upon practices:
a) The practice of the people of Madinah. Malik allows musaqat (a sharecropping contract over the lease of a plantation, limited to one crop period) because the people of Madinah practiced it;
b) The practice of the scholars of Madinah. Malik regards fasting for six days during Shawwal as an innovation, because the scholars of Madinah (ahl al ‘ilm wa alfiqh) did not observe these fast days; and
c) The practice of political authorities. Malik, for example, says, “and what is agreed upon by the authorities in the past and present is that taking oath will begin from the plaintiffs.
‘Abd Allah, who has studied Malik’s concept of ‘amal, states that Malik opined that the customs of any nation are to be given due consideration in formulating legislation. However, the ‘amal of the people of Madinah is unique and not like the customs of other people or countries, for Malik uses it as the most authoritative legal argument in his legal theory. Al Fasi suggested that Malik looked upon the ‘amal of the people of Madinah as a sure criterion to follow when trying to reconcile differences in opinion among the fuqaha’. This hypothesis is supported by ‘Abd Allah in his analysis of Malik’s terminology in al Muwatta’. There are also certain differences between ‘urf and Malik’s doctrine of ‘amal. For example, ‘urf does not command any spiritual authority, while ‘amal embodies spiritual authority. Malik also sees it as a nass.
Traces of the Maliki doctrine of ‘amal are found in the early history of Islam. Al Tabari states that the people differed on the issue of who should succeed ‘Uthman after his assassination. A group of the Companions said that they would wait, observe what the people of Madinah did, and then follow them. ‘Ali is also reported to have said that the matter belonged to the people of Madinah. Waki’ mentions that Ibn Hazm (d. c. 120 AH) was a qadi in Madinah at a time when someone who had been designated amir mentioned his difficulty in making decisions when the jurists themselves held different opinions on a specific issue. Ibn Hazm advised him to issue his decision based on the practice of the people of Madinah, if it were available on that particular issue, because their ‘amal is sound and valid.
However, such later fuqaha’ as al Shatibi and Ibn Farhun explicitly mention this specific ‘amal as an effective force in the formation of law. Al Shatibi (d. 790 AH) divides the custom and usage of the people into two categories. The first class consists of those which are either approved by the Shari’ah, a nass, or other shar’i evidence. They are discussed as rules of the Shari’ah, not as customs. Their acceptability depends upon how well they conform to the Shari’ah. For example, covering one’s private parts is affirmed by the Shari’ah as a good and proper practice. This practice is not susceptible to change, regardless of prevailing custom, which might be quite different, or location. The second category is made up of those prevailing traditions that are neither confirmed nor rejected by the Shari’ah and are therefore mubah (permissible). These are taken into consideration during the process of reaching a judgment, but they are not binding. For example, al Shatibi discusses a practice that was prevalent during his time and in his area: covering one’s head. He relates that this is a custom of well mannered people in eastern countries, for leaving one’s head uncovered was seen by the inhabitants as against manly virtue (muru’ah). But at the same time, the inhabitants of North Africa thought the opposite, i.e., that leaving one’s head uncovered is not viewed as detrimental to a person’s proper conduct.
Al Shatibi also upholds a close relation between the doctrines of maslahah and ‘urf on one hand and maintains their integration with the other sources of law on the other. He further maintains that preserving the public interest is inherent in the general objectives of the Shari’ah. The preservation of the five necessities (religion, self, family, property, and intellect) is based on this doctrine. Customs and traditions which help to achieve the community’s common welfare are included in masalih, and they play an important role in fulfilling the purposes of the Shari’ah.
Ibn Farhun, a Maliki jurist and contemporary of al Shatibi, also discusses several rulings in which ‘urf is decisive. He states that if a jurist has to choose between the literal meaning of a word or how it is used in the society, the latter meaning must take precedence. In commercial transactions, we find jurists taking customary laws and practices into consideration. For example, if the currency to be used in a commercial dealing is not specified when the contract is made, it will be determined by custom-the currency in use in the market. However, if there are several currencies in circulation, the currency that is most commonly used and accepted by the traders shall be deemed as the proper one to use.
Whenever ‘urf is changed, the legal effect is also liable to change. The cases of marriage, divorce, will, oath-taking, and dealings in which customary practice is significant have received due legal consideration. Ibn Farhun explains another dimension of the significance of ‘urf. If a mufti, for example, goes to a country where different traditions and customs are established, he should not give any legal opinion unless he is well aware of the customs and conventions of the country.
Imam al Shafi’i does not discuss ‘urf and ‘adah as legal sources or as authentic legal arguments in al Risalah or in al Umm. However, there is evidence that he accepted ‘urf as a valid argument. On the matter of theft, for example, he lists hirz (normal safe-keeping or protection) as an essential condition for the implementation of the requisite punishment. The exact definition of hirz, however, may be decided by ‘urf. He mentions the example of a case of goods left lying in an open place. To determine whether or not it enjoyed sufficient hirz, one would have to determine if the owner habitually left it in that same place and whether he regarded it as protected. If so, the condition of hirz would be fulfilled. He also says that the jarin (the place in which dates or grain are kept) is regarded as protected, while a fence around a garden or a field is not, because people accepted the former as being protected and the latter as being unprotected. According to al Shafi’i, this was the custom in his time. This ‘urf had to be considered when a case of stealing from these places was brought before a judge. It also appears from the discussion of al Ramli that ‘urf and ‘adah help to determine hirz.
Al Mawardi (d. 450 AH), who may be thought of as an early Shafi’i jurist, discusses usul al fiqh in the context of practical judgment. He maintains that both reason and ‘urf must be used when making decisions and settling matters. All legal systems, he says, follow this procedure. Al Khatib al Baghdadi, another Shafi’i jurist, insisted that the muftis and qadis must be aware of the people’s customs and traditions. He maintained that without this knowledge, they would be unable to understand the cases in the proper perspective and would therefore run the very real risk of making inappropriate legal rulings. Al Juwayni (d. 478 AH) points out the significance of customs and traditions by saying that ijma’ is proved by uninterrupted ‘urf. As was shown earlier in this paper, al Shafi’i and the Shafi’i fuqaha’ accepted the authority of ijma’. Al Ghazali confines his discussion to lexicography, in which he divides words into two categories: those spoken and understood in a literal sense, and those used in a customary sense. He does not explain the role of ‘urf and ‘adah in forming legal rules.
Al Suyuti (d. 911 AH) is perhaps the first Shafi’i jurist to acknowledge the momentous impact of ‘urf and ‘adah on social life. He discusses them theoretically as sources of law and mentions their practical application to legal issues. He refers to the fiqhi maxims discussed by the qadi Husayn ibn Muhammad (d. 462 AH), upon which, he claims, the Shafi’i school of fiqh is based. According to al Suyuti, the fourth principle-usage is decisive-is derived from a saying attribute to the Prophet: “Whatever the Muslims see as good is good with Allah.” Under the heading of this maxim, he discusses ‘urf and ‘adah at length and affirms that there are countless legal issues which have been or can be solved by referring to these two sources.
He shares the opinion, mentioned above, that the customary meaning of a word has priority over the literal meaning, even if it contradicts the Shari’ah. For example, if a person swears that he/she will not eat meat, he/she would not break his/her oath if he/she were to eat fish, because people are not accustomed to applying the word lahm (meat) to fish. This is despite the fact that the Qur’an considers fish to fall under this category: “It is He Who has subjected to you the sea, so that you may eat fresh lahm from it.” Another example concerns the usage of a word, the Shari’ah in a specific sense, which would make the literal meaning irrelevant. For example, if a person swears that he/she will not perform salah (prayer), his/her oath would not be broken by uttering some words of prayer or supplication, but only by performing the ritual standing, bowing, prostrating, and sitting as prescribed by the Shari’ah, for this is how the people understand salah.
The customary meaning is also given precedence in social transactions, for ‘urf, according to al Baghawi, is decisive in such cases. If there are particular conditions in a given society associated with social transactions, these must be considered even if they are not mentioned in the contract. This is also true of local customs, for ‘urf is decisive. He says that whatever the Shari’ah states as being general and not limited or restricted in meaning, the prevailing ‘urf may fix the limits. To make his point, he cites the above-mentioned example of hirz.
In his discussion, al Suyuti refers to many prominent fuqaha’ who took ‘urf and ‘adah into consideration while formulating their legal rulings: Qadi al Husayn (d. 462 AH), al Subki (d. 771 AH), al Shaykh Abu Zayd, al Baghawi (d. 516 AH), Ibn al Salah (d. 642 AH), al, Isnawi (d. 772 AH), and al Rafi’i (d. 623 AH).
We do not have any clear and definite opinion from Ibn Hanbal on ‘urf. Generally speaking, the early fuqaha’ discussed only those sources that have religious significance or are sanctioned by the religious sources. However, he recognized the principles of istihsan and al masalih al mursalah, as we discussed in “Early Fuqaha’ on the Development of Ijtihad.” Both of these principles cover ‘urf and ‘adah.
Abu Dawud’s (d. 275 AH) work, Masa’il al Imam Ahmad, comprises the legal opinions of Ibn Hanbal. In it, he discusses several issues in which ‘urf and ‘adah were considered. For example, when Ibn Hanbal was asked about hoarding (hukrah), he answered that it can only be applied to what people use as food, the exact definition of which was left up to the local inhabitants. Therefore, hoarding can be defined differently in every society. Abu Dawud also related Ibn Hanbal’s views on many other fiqhi issues concerning commercial transactions without referring to either nass or ijma’. Obviously, in those cases he could not neglect the ‘urf, he accommodated it by considering the interest of the people.
Ibn Qudamah (d. 620 AH), the most prominent Hanbali jurist, describes both his opinion and that of Ibn Hanbal in al Mughni. He mentions that Ibn Hanbal accepted a weak report if he found that it corresponded to local custom. Ibn Qudamah himself recognizes ‘urf and ‘adah as sources and refers to them in many fiqhi rulings.
Ibn Taymiyah and Ibn al Qayyim accept ‘urf and ‘adah in both theory and practice. Ibn Taymiyah divides names of things into three categories:
a) ‘Urf shar’i, by which he means such Islamic practices as iman, salah, zakah, kufr, and nifaq. The meanings of these terms are determined and explained exclusively by the Shari’ah;
b) Names having literal meanings but which are generally known and understood within the contexts of custom and usage. According to Ibn Taymiyah, the Shari’ah does not confine the meanings of such words within certain limits; and
c) Words possessing only a literal meaning.
Another example of taking custom into consideration occurs when he discusses travelling. As one is allowed to shorten his/her prayers while travelling, the definition of “travelling”‘ must be determined. Such a definition is provided by the prevailing ‘urf of the people, as there is no limit indicated in the Shari’ah. For example, a postman walks a great deal but is not regarded as a traveller. The same is true of people who commute to work. The people of Makkah, on the other hand, were considered to be travellers when they went to spend the night at Mina and ‘Arafah during the Hajj. They could therefore shorten their prayers. Other examples in which custom is applicable within a legal ruling is seen in the case of the kaffarah (expiation) for breaking one’s oath. Here, one must feed ten poor people with the average food that he/she provides to his/her family. What is “average food” depends upon the local custom.
Ibn al Qayyim illustrates some cases in which customary evidence can be taken into consideration. He further states that the consideration of ‘urf in some cases is an obligation (wajib). According to him, it is effective and decisive in more than one hundred issues.
It is clear that the ShaWah is the major norm which regulates the conduct and governs all aspects of Muslim individuals and their societies. Its basic sources are the Qur’an and the Sunnah, while ‘urf, ‘adah, and all other methods of ijtihad are secondary (i.e., nonindependent, derivative) sources. Rulings based on these secondary sources are allowed, provided that they are in accordance with Islamic principles and norms.
The khulafa’ al rashidun made use of local customs and practices whenever it was possible to do so. The fuqaha` continued to follow this practice and provided legal and rational grounds for its acceptance. The wisdom of the early Muslims in recognizing and accommodating useful customs from the surrounding civilizations is evident. It is also in accord with a prophetic hadith: “Wisdom is the lost property of the faithful who deserve it most wherever it may he found,” a saying that encouraged Muslim scholars to accept useful knowledge and the other good things of life which were consistent with the Shari’ah.
Muhammad Y. Faruqi