In our ongoing study of Usool al-Fiqh (principles of Islamic Fiqh), we have systematically examined the various sources of Al-Hukm (Islamic rulings). We have covered the primary sources - the Quran, Sunnah, and Ijma (scholarly consensus) - and explored different methodologies of Ijtihad including Qiyas (analogical reasoning), Istihsan, Amal Ahlul Madina (practice of the people of Madinah), Istishab (presumption of continuity), Sadd al-Dhara'i (blocking the means), Qawl as Sahabi (statement of the companions) and Masalih Mursalah. Today, we examine another important source within Ijtihad: Urf (custom).

The Meaning of ʿUrf

Linguistically, the term ʿUrf comes from the root meaning “to know.” It refers to what is commonly recognized or acknowledged.

Technically, in the discipline of uṣūl al-fiqh, ʿUrf is defined as:

"What is common or customary among the people and to which they have habituated, whether it is a word or deed which is not contrary to the Qur'an and Sunnah”

 In other words, Urf represents the established customs, practices, and norms within a community or society, as long as they do not conflict with the teachings of the Quran and Sunnah.

Types of Urf

The fuqaha (jurists) classify Urf into two principal categories:

1. Verbal Urf (Urf Lafzi)

This refers to the meanings of words that people habitually intend when they speak them in an absolute sense.

Suppose you tell someone during a transaction, "I will give you 5000 dollars in USA." In this case, the understood custom is that the term "dollars" refers to the currency of the United States, which is the US Dollar (USD). It would not be interpreted as referring to another currency like the New Taiwan Dollar (NTD) or the Singapore Dollar (SGD). If a dispute later arose and this matter went to court, the qāḍī (judge) would likely rule that the custom and common understanding in the United States is that "dollars" means US Dollars. The qāḍī would therefore order you to pay the 5000 USD that was promised, rather than the equivalent amount in a different currency. The customary usage of the term "dollars" in this context would be considered authoritative.

2. Practical ʿUrf (ʿUrf ʿAmalī)

This refers to the actions and practices that people are accustomed to and widely recognize.

Consider a scenario where giving dowry is a common practice during a nikāḥ (Islamic marriage) ceremony. In this case, the giving of dowry is a widely accepted and recognized custom (ʿUrf) within the community. If a dispute arises where the wife claims that dowry was not given, without any evidence to support her claim, the established ʿUrf of providing dowry during the nikāḥ would still be considered, even in the absence of documentation, unless there is some alternate evidence to dispute it.

Conditions for Valid ʿUrf

Not every custom is recognized in Sharīʿah. The ʿUlamāʾ (scholars) stipulate several conditions for ʿUrf to have legal authority:

  1. Continuity: The custom should be continuous and widely recognized within the community. For example, mahr (dowry given by man).
  2. Timing: The custom should exist at the time of the transaction or agreement being made.
  3. Agreement: The parties should not agree on anything that runs counter to the established custom. If the parties clearly make an agreement against the custom, their agreement will be considered, not the customary practice. For example, utilities bill in a rented house.
  4. Alignment with Sharīʿah: The custom should not contravene any text of the Qur'an or the Sunnah. For example, interest-based business.

Urf and ʿĀdah

The terms ʿUrf and ʿĀdah are closely related but distinct:

  • ʿĀdah (usage) can be from an individual (personal practice, ʿādah fardiyyah) or from a group of people (collective practice, ʿādah jamāʿiyyah).
  • ʿUrf (custom) is only a collective practice, not an individual one.

Here, ʿĀdah is often used synonymously with ʿUrf.

A central qaidah in Shariah states:
“al-Adah Muhakkamah — Custom is authoritative.”

This means that custom is taken into account during judgement. The Ulama (scholars) will consider it while issuing fatawa, and the qadi (judge) will take it into account before giving judgement.

In some cultures and customs, the term "lunch" is strongly associated with meals that include rice as a staple component. If someone from this cultural background is asked "Did you have lunch?" and they reply "No," even though they consumed a meal of tortilla wraps and sandwiches, they would not be considered a liar. The reason is that, within their cultural understanding, "lunch" is specifically defined as a meal containing rice. The absence of rice in their midday meal means it would not be considered "lunch" by their cultural standards, even though it may be considered a lunch by the standards of other cultures. In such a case, the arbiter or qāḍī would defer to the customary definition within that society.

Evidences for Urf

The concept of Urf is recognized as a source of Islamic law by the major books of fiqh.

From the Qur’an:

وَأْمُرْ بِٱلْعُرْفِ وَأعَْرِضْ عَنِ ٱلْجَاهِلِينَ
“Enjoin what is (Urf) right, and turn away from those who act ignorantly.” (Qur’an 7:199)

Al-Qurtubi explains:

“Urf, ma'ruf and ma'rifah is anything that is good, approved of by reason, and acceptable by mankind.” (Tafsir al-Qurtubi, 7/344)

From the Sunnah:

  • Narrated Abdullah bin AzZubair: "Hold to forgiveness; command what is right (Urf)..(Qur’an 7:199)." was revealed by Allah except in connection with the character of the people. (Sahih al-Bukhari, 4643)
  • Narrated Aishah: Hind bint Utbah said, "O Allah's Messenger ﷺ Abu Sufyan is a miser and he does not give me what is sufficient for me and my children. Can I take of his property without his knowledge?" The Prophet ﷺ said, "Take what is sufficient for you and your children, and the amount should be just and reasonable (bil-Ma'ruf)." (Sahih al-Bukhari, 5364)

References:

  • Usool al-Fiqh al-Islami, Muhammad Mustafa al-Shalabi, p. 323
  • Al-Ashba wal-Nazair, al-Suyuti, p. 89
  • Al-Manthur fi al-Qawaid, al-Zarkashi, 2/356
  • Sharh Al-Qawaid al-Fiqhiyyah, Ahmad M. al-Zarqa, p. 219

From this principle arise derivative qawaid:

  • “Determining a ruling through Urf is like determining it through nass (text).” (التعیین بالعرف كالتعیین بالنص)
  • “That which is known by Urf is like that which is stipulated by condition (shart).” (المعروف عرفاً كالمشروط شرطاً)

If someone rents a shop in a street full of clothing and fashion shops, and the rental agreement does not specify the exact purpose for which the shop will be used, then the customary practice (ʿUrf) of the area would be used to determine the intended use of the rented shop. Since the surrounding shops are primarily used for clothing and fashion-related businesses, the customary practice would suggest that the rented shop should also be used for similar purposes. Therefore, if the tenant uses the rented shop for purposes such as to burn iron and engage in metalworking activities, which are not in line with the customary practice of the area, the owner can rightfully ask the tenant to vacate the premises.

Likewise, suppose a real estate broker or agent is hired to facilitate the rental of a property. It is a common and accepted practice (ʿUrf) in the local real estate market that the broker or agent takes one month's rent as their commission for the transaction. Even if this commission arrangement is not explicitly stated in the rental agreement, it would be considered as binding as if it were a stipulated condition, based on the principle mentioned above.

Conclusion

Urf, therefore, is the recognized custom of people which the Shariah accepts as a source of rulings so long as it does not contradict Qur’an or Sunnah. With this foundation in place, we now turn to the next important discussion in usul al-fiqh: the principles of Aam (general) and Khaas (specific).