First: (Al-`Urf or) the Custom.
The Literal Meaning of (Al-`Urf) or the Custom:
Al-`Urf (the custom) and Al-M`aruf (the known) have the same root meaning. Al-`Urf (the custom) is antonym of the word Nukr (strange or unknown). Thus, Al-`Urf (custom) is every good thing that is recognized by a pure mind and that becomes acceptable to a pure instinct or the heart feels satisfaction with it. (1)
Al-`Urf (the Custom) in Islamic Terminology:
Al-`Urf or custom includes everything that is firmly established in the instincts of the mankind through fair justification of the mind and was accepted by pure intellects. (2)
Therefore, Al-`Urf or the custom includes every repeated practice whether word or deed that is acceptable to the mind and satisfactory to a pure and fair intellect. In addition, Al-`Urf or custom must be admired by a fair mind that must be pure and sound and not polluted with wrong inclination or lust.
Furthermore, some scholars defined that Al-`Urf or the custom is the habit of a community in word or deed. (3)
Therefore, this definition is broader than the first, as it includes both: what has been favored by the minds and what has been approved by the lustful inclinations.
Custom and Habit:
Some scholars conclude that custom and habit are of the same meaning, because, they both give the same sense.
However, some scholars view that Al-`Urf or custom is specific with something favored by all people or people of a particular country, whilst, Al-`A'dat or habit usually refers to everything that has been adopted and approved by some people, whether it was specified with an individual alone, or it is common among all people of his country or community.
So, Al-`Urf or custom would be based on the habit of a group of people, while Al-`A'dat or habit may refer to an individual only and a group of people as well. (4)
But most of the scholars use it interchangeably.
Evidences for the Authoritative Aspect of Al-`Urf or the Custom:
The Glorious Qur'an and blessed Sunnah denote the importance of Al-`Urf or custom that has been regarded as a significant principle by Islamic Shari`ah.
Those evidences include the following:
1- The Glorious Qur'an says about the expiation of an oath: "So its expiation is the feeding of ten needy people from the average of that which you feed your [own] families or clothing them or the freeing of a slave." (5)
Shaykh Al-Islam ibn Taymiyyah said: "Allah (Glory be to Him) ordered to feed the poor from the average of that which people feed their families. Scholars have disputed on the quantity of food, whether it would be measured and fixed by the Islamic Shari`ah or by the custom prevailed in the community. But the preferred and favored opinion in this subject is that the quantity would be fixed according to the custom. (6)
2- Also Allah the Almighty says about the rights of spouses towards each other: "And due to the wives is similar to what is expected of them, (Bil-Ma`aruf) according to what is reasonable." (7) And Allah (Glory be to Him) says: "And live with them (Bil-Ma`aruf) in kindness." (8)
It is clear from the above-mentioned verses that Allah (Glory be to Him) has recommended to refer to the custom of the people in the measurement of expenses and living with them in kindness according to what is known and established between people.
3- Allah (Glory be to Him) says about what is lawful for the guardian to take from the wealth of an orphan: "And whoever (amongst guardians) is rich, he should take no wages, but if he is poor, let him have for himself (Bil-Ma`aruf) what is just and reasonable (according to his labor)." (9)
Allah (Glory be to Him) permitted the guardian if he is poor to eat from the wealth of the orphan, and recommended to refer to the custom of the people in measuring the amount that is permissible for him.
The verses in this sense in the Glorious Qur'an are many, but what has been mentioned here is enough to explain the opinion.
4- Furthermore, there are some evidences in the blessed Sunnah, as the Prophet Muhammad (may the peace and the blessings of Allah be upon him) said to Hind the daughter of `Utbah (10) who complained of the lack of expanses given by her husband Abu Sufyan (11): "Take (Bil-Ma`aruf) reasonably what is sufficient for you and your children." (12)
The phrase (Bil-Ma`aruf) here means the amount that is regarded as sufficient according to the prevailed custom. (13) *
Thus, it has become clear that Al-`Urf or the custom is the authority in defining the amount of expenses that husband must give to his wife. This is the opinion of the majority of scholars. Therefore, the expense may be different depending on the conditions of the country, time, the state of the couple and their traditions. (14)
It is evident from the above-mentioned explanations that Al-`Urf or the custom has been regarded in Islamic Shari`ah as an authority in applying the absolute rulings.
In this context, Shaykh Al-Islam Ibn Taymiyyah says: "The words that have been mentioned in the Book of Allah or in the blessed Sunnah of His Messenger(may the peace and the blessings of Allah be upon him) that contained some provisions, such words can be defined by Arabic language; like; Ash-Sams (the sun) and Al-Qamar (the moon). While, some of those words are defined and understood through the Shari`ah itself, like; Al-Mu'min (the believer), Al-Kafir (the disbeliever) and Al-Munafiq (the hypocrite), but the words that could not be defined neither, through the Arabic language nor through Shari`ah, then they should be defined and understood according to Al-`Urf or the custom." (15)
The decision of Shaykh Al-Islam in this subject represents the opinion of the majority of scholars, even some scholars, like; Al-Qurafi (16) and Ibn Al-Qayyim have criticized the jurists who do not value the customs.
Ibn Al-Qayyim says in this regard: "Who issue Islamic ruling for the people, basing their opinions only on the traditions reported in books, without taking into consideration the difference of their manners, norms, habits, periods, conditions and circumstances, such scholars go astray and make astray." (17)
One of the manifestations of the importance given by the scholars to (Al-`Urf or the custom in the light of Islamic texts is that they have established a principle for the usages of customs that are referred by the judges and the people of fatwa (jurists) and others. The principle says "The custom is a unanimous authority" that is supported by a lot of evidences and proofs. In addition to that, Muslim scholars have mentioned a number of issues and subjects in Islamic jurisprudence, that have been judged in the light of this principle. (18)
Thus, it has become crystal-clear that Islamic Shari`ah values the norms and customs of the people regarding the application of absolute rulings that could not be included in one comprehensive definition. Such principles can be applied depending on the circumstances, conditions, norms and customs of the people. Through this method, the problems would be solved and the benefits would be achieved.
(1) Ibn Manzur , Lsan Al-Arab (9/239).
(2) Ahmad Abu Sanah, The Custom and Habit in the Opinion of the Jurists (Arabic), p. 8, Al-Azhar Press, 1947 A.D. But the definition has been quoted from Al-Mustasfa by Al-Ghazali.
(3) Mustafa Az-Zarqa', Al-Madkhal Al-Fiqhi Al-`A'mm (1/131), Dar Al-Fikr, edition 10th, the year 1387 A.H.
(4) Mustafa Az-Zarqa', Al-Madkhal Al-Fiqhi Al-`A'mm (1/131), Dar Al-Fikr, edition 10th, the year 1387 A.H.
(5) Surah Al-Ma'idah:89.
(6) Ibn Taymiyyah, Majmu`a Al- Fataawa (26/114).
(7) Surah Al-Baqarah: 228.
(8) Surah An-Nisa': 19.
(9) Surah An-Nisa': 6.
(10) Hind Al-Qurashiyyah, the daughter of `Utbah ibn Rabi`ah, mother of Mu`a'wiyah ibn Abu Sufyan, who accepted Islam on the day of victory on Makkah by Muslims and died in the reign of `Usman (may Allah be pleased with him). See: Al-Isabah (4/409).
(11) He is Sakhr ibn Rajab ibn Umayya ibn `Abd-e- Shams ibn `Abd –e- Manaf Al-Umawi, who accepted Islam during the year of victory on Makkah and died in 32 A.H. or after that. See: Al-Isabah (2/172).
(12) Agreed upon between Al-Bukhari and Muslim. See: Ibn Al-Hajar, Fat'h Al-Bari (9/507) and An-Nawawi, a commentary on Sahih Muslim (4/340).
(13) Ibn Al-Hajar, Fat'h Al-Bari (9/509).
(14) Ibn Taymiyyah, Majmu`a Al- Fataawa (34/83).
(15) Ibn Taymiyyah, Majmu`a Al- Fataawa (29/15-16).
(16) Ahmad ibn Idris ibn `Abdur-Rahman As-Sanhaji, the Egyptian and Al-Maliki, who died in 684 A.H. See: Al-I`alam (1/94), also see his book Al-Furuq, (1/176-177) Dar Al-Ma`arifah, Beirut.
(17) I`alam Al-Muwaqqi`in (3/89), Dar Al-Fikr, Beirut, edition 1st 1374A.H.
(18) As-Suyuti, Al-Ashbah Wan-Naza'ir, edition 1st, 1399A.H. p. 89, Dar Al-Kutub Al-`Ilmiyyah, Beirut, and ibn Nujaym, Al-Ashbah Wan-Naza'ir, p. 93, Dar Al-Kutub Al-`Ilmiyyah, Beirut,1400 A.H..