Custom (urf) as a source of rulings

In the lexicon, urf is what the soul knows of good and is at ease with; it is the opposite of nukr. As a technical term it is what souls have settled upon by the testimony of reason and what natures accept ¹.

Some scholars distinguish custom (adah) from urf: custom is the practical usage, while urf in the strict sense is verbal usage ².

Verbal urf is the agreement of a people to use a word for one meaning, so that no other meaning comes to mind when it is heard ³. Practical urf is what people habitually do in their dealings, such as selling by mutual handing over and commissioning manufacture ³. Custom is divided into general and specific, sound and corrupt, and fixed and changing ^{4 5}.

Custom must be steady or prevailing ⁶; the majority of Hanafis and Shafi'is accept only general custom ⁶; and it must not contradict a textual rule ⁶. It is set aside when an explicit statement contradicts it ⁷, and it must exist when the act is made: later custom does not govern an earlier act ^{7 8}.

Where custom contradicts a text entirely, the text prevails. Where it contradicts the text in part, the majority hold that custom neither specifies nor restricts the text, while the Hanafis hold that it does ⁷.

The full treatment of custom belongs to the appendix on legal theory, and some points are given under «adah» ⁸.

The Encyclopaedia of Islam (2nd ed.) treats 'ada (custom, customary law) as a distinct subject from the sharia, the ideal Muslim law corresponding to God's will. It concerns the survival of pre-Islamic custom, which the article calls 'ada or 'urf, and not the modern reforms of Muslim law. The article notes that custom was never admitted as one of the formal sources (usul) of the law, although fiqh sometimes refers to customary usage, as when it defines an equivalent dowry or the ordinary food for the zakat al-fitr. Rulers' administrative regulations, called 'urf in Persia, kanun in Turkey and siyasa in other places, also operated beside religious jurisdiction. ⁹

Custom persisted where the religious courts ignored it or never existed. Jurists devised legal devices (hiyal) to put a prohibited act in a legally unassailable form, for example in usury, or using the waqf to disinherit women. In Java a pre-Islamic marriage arrangement was treated as a commercial partnership, and in Menangkabau (Central Sumatra) a matriarchal custom was strong although Islamic learning spread widely. The article expects custom to decline slowly, under the pressure of European colonisation and the spread of religious courts, and notes that custom is being Islamised. ¹⁰

In British India the English legal system replaced much Muslim law, and customs were given validity on grounds of equity and good conscience. Many were contrary to the sharia, and the Shariat Act of 1937 removed much of their force, though it excepted the devolution of agricultural land. Communities converted from Hinduism kept Hindu inheritance customs, the Khodjas and Memons among them, and Moplas of southern India followed the marumakkatayam law of inheritance through the sister's children. Some Punjabi and Uttar Pradesh communities excluded women from inheritance; adoption survived by custom; and pre-emption was applied in the light of customary practice. Custom usually made divorce and polygamy difficult, through the delegated right of divorce (talaq al-tafwid) and high deferred dower (mahr muajjal). With the partition of India, the article assumed custom would lose legal sanction in Pakistan, though its influence would last for generations. ¹¹