Consideration of ‘Uif in the Judgments of the Khulafa“ a2 Riishidu’n and the Early Fuqaha” Muhammad Y . Faruqi Consideration of ‘ U ~ by the Khulufli’ al RrZshit&in ‘Urf (custom) and ‘ a h (tradition) are very ancient and important somes of Islamic law. As the pre-Islamic Arabs had no written docu- ments or script, their social systems were regulated by custom and tra- dition. According to the available historical accounts, the WluZufi’ al nishidrin retained many pre-Islamic social customs and traditions and also adopted and established some useM nonindigenous customs. Such bor- rowing was quite acceptable in their eyes, for the Prophet himself had acknowledged the validity of some pre-Islamic customs that were com- patible 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 wor- shippets, and this outlook was reflected in their customs. However, they had also retained a pottion of the legacy of Ibriihim: 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 Wtulufi’ al rbhidin. For instance, grain (i.e., wheat, barley) con- tinued to be regarded as hyZf(meaSured by capacity) and gold and silver were considered m i (measured by weight). The same custom and usage were followed in commercial transactions made by the Prophet and his four immediate SUCC~SSOIS. Thefuqahd ’ later based many of the rules concerning zakah (poor due), suduquh (charity), and hffaruh (expiation) Muhammad Y. Faruqi is an associate professor in the Kulliyyah of Islamic Revealed Knowledge and Human Services, International Islamic University, Selangor, Malaysia. ‘A1 D a d - , Sunm, vol. 2 (Beirut: D a a1 Kutub a1 m - y a h , n.d.), 257; there is a mention of Wazz& who were rofessional weighers, see Ibid, 260, Ibn Jjanbal, Musnad, vol. 3 (Beirut: al Maktab a1 &mi, ad.), 310. Fmqk ConsideI.ation of ‘Urf 483 on the customary practice of measurement by these five individuals.2 In addition, all types of pre-Islamic commercial transactions (buy2) that did not violate any Islamic principle were kept. For example, Bukhiifi states that buy‘ ul d u r n (futures) was practiced in M a d i i before the huruh3 and thmughout the Rkhidiin period. While ‘Umar ibn a1 KhaUiib did not allow this practice when it came to selling fruits that had not yet a p pea& on tms; ‘Ali ibn Abi Tdib 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 All& ibn ‘Umar is also re- ported to have used this procedure when dealing with animals.’ Q&li Ziidah relates, on the authority of ‘Abd All& ibn Abi ‘Awfa, that bay‘ ul d u r n was practiced during the time of the Prophet, Abii Bakr, and ‘Umar as regatds the selling of wheat, barley, dates, and raisins6 These were allowed on the basis of ‘ur$ despite the fact that thefuquhd’ differ on the details and the different types of transactions? The only speci- fically forbidden customary transactions were those involving usury or risk (ghurir) for either party. Abii Bakr and ‘Umar also practiced the pre-Islamic customs of hiring and renting.* Waki’ mentions that the latter hired a horse on the con- dition that one of his friends would also ride. When the owner’s horse was injured, he demanded that ‘Umar pay compensation. ‘Umar asked *See relevant chapte~ in Ma&, al Muwma’ (Cairo: Mustafa al BSbi al Bdabi, 1370/1951) and al Mudawwanah (Baghdad: Matba‘at al Muthami, 1970); al SWi‘i, a1 Umm (Beirut: D& al Ma‘rifah, 1393/1973); al Shay- a1 J h i ‘ ; al S a - , a1 Mabslsr (Beirut: D&r al Ma‘rifah, ad.). 3BukhW, $&a, vol. 1 (Cairo: Diir wa MMbi’ al Sha’b, 1378/1959), part 3, 111; IsmSil ibn Y a y & al Muznl, a1 Mukhtasar, 90. ‘Ibn Hajar, Farl~,.vol. 5 (Cairo: M W f a al BSbi al Ualabi, 1378/1959), 338-9 (‘Umar prohibited it because there was risk, and the buyer might suffer a loss). ’A1 Sarakhsi, A1 Ma&&, vol. 12, 122; M a A1 Muwma’, vol. 2, 69 and a1 Mudawwanah. Qiidi Zi%hh, Natd’d a1 Am-r (with Ibn al Hum-), Sharh Fath al Qadk, vol. 5 (Pakistan: Maktabah W d i y a h Pakistan, 1985), 324. ’Ibn al Humiim, Sharh Fath al Qadi?, vol. 5,327; Q d i Zidah, Nola’& vol. 5,324; Ibn Hazm, A1 Muhalki, vol. 10 (Cairo: Maktabat al Jumhii~Tyah, 1387/1%7), 55-9 (article 1819). *A1 Shawkiini, Nay1 a1 AM&, vol. 6 (Beirut: D& al Jil, 1973), 35; Ibn QwEtmh, a1 MughnT, vol. 5 (Cairo: D& al M e , 1386), 397. 484 The American Journal of Islamic Social Sciences 9:4 him to nominate an arbitrator ( W m ) to settle the dispute in accordance with the common pre-Islamic practice. Although a had no authority to implement the decision, both parties were motally bound to accept it. The owner nominated Shurayb, a suggestion which 'Umar accepted. And, when the verdict went against 'Umar, he complied and paid the amount The historical records show that when the Prophet and Abii Bakr migrated to Madinah, they hired a person to guide them." During the time of 'Umar, zjbruh (hiring) was very common. People used to hire homes, lands, and animals for traveling as well as skilled people to manufacture their necessities. 'Umar ibn 'Abd a1 'Aziz, according to Abii 'Ubayd, employed Yazid ibn Abi Miilik a1 Dimashqi and al H S t h ibn Yamjud ai Ash'ari to teach the people of rural areas. 'Umar employed thirty teachem of the Qur'an in Madinah and fmed their monthly salary." Thus we find a gradual development from custom to legal institution. The fiquhti' 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 (mudiru- buh) was also considered legal. Imiim al ShZfi'i relates that ' U n d 3 and 'Ali14 preferred to invest the wealth of orphans in such an undertaking, as they viewed it as a good management technique. This might be why a1 Nakha'i recommends that the guardians of orphans invest their wards' wealth in either a muddrubah undertaking or in some other profitable business.15 'U- ibn 'Affan, an experienced trader, made a mudaru- buh agreement with 'Abd All& ibn 'Ali, and 'Abd All& ibn Mas'iid is reported to have made one with Zayd ibn Khulaydah.'6 Thefi4uhb' soon fequested? Akhbiir a1 w, vol. 2 (Beirut: ' & m al Kutub, n.d.), 189 (this event took place before Shurayb was appointed as judge). "Bukhiiri, $&$I, 11% Ibn Hajar, Fath, 349-50; al 'Am 'Windat a1 Qan; vol. 12 (Beirut: DSr fiyii' al Turith, n.d.), 8@2. "Abii 'Ubayd, a1 Amwd (Cairo: Maktabat KulliyP al Azhariyah, 1395/1975), 243-4; Ibn Hazm, al Muball& vol. 8, 195. ''Mdilc, a1 Mudawwanah, vol. 4 ("Kiuib al Ij&ah"), 402-59; al Sarakhsi, al M a h i t , vol. 15, pp. 74-184. 13Al Shiifi'i, a1 Umm, vol. 7, 108; al SarakhsT, a1 Mahsa, vol. 22,18. ' ' ~ 1 Shiifi'i, aL Umm, vol. 7,2O. "Ibid., 19. '%id., 108. Faruqk Consideration of 'Urf 485 developed this traditional practice into a legally defined id tu t ion with the necessary t e r n and conditions for its different branches." I m b E l i k nanates 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 dirfiam was a silver coin). These coins, mentioned quite often in both Pqhf and early hadith literatw,'* we= in circulation in the urban areas and we= probably minted in such neighboring countries as Persia. Ac- cording to Miilik, the Syrians and Egyptians used gold in their com- mercial transactions, while the Iraqis used silver. Such usage might have been influenced by the traditions of the PetSian and Byzantine empires. E l i k also elaborates on the payment of blood money. He says that payment is to be made in the currency used by the people. For thase who still deal in a cashless economy, namely those in the rural areas, payment is to be taken from their real wealth. their ~ame1s.l~ A1 Shaybini relates that 'Umar laid down the following payments: one h u n d d camels for those whose wealth was in camels (uhl ui ibil), ten thousand dirhams for those who used silver (uhl ul wuruq), one thousand dinars for those who used gold (uhl ul dhuhub), two thousand one-year-old sheep for those whose wealth was in sheep (uhl ul shd'), two hundred cows for those whose weath was in cows (uhl a1 buqur), and two hundred dresses for those whose wealth was in clothing (uhl ul h ~ l l a h ) . ~ Under the Prophet and Abii Bakr, blood money was paid only in the form of camels, as that was the existing custom. At the time of 'Umar, however, utbanized people had started to participate in a monetary won- omy. Observing this change, 'Umar amended the blood-money payment "Ibid., chapter "al Mudiirabah"; al Sarakhsi, al M a w , chager "al Mu~jSrabah"; "Abii D5- Sunan, vol. 2 (IjimS: M. 'Ali al Sayyid, 1388/1969), 277-8; al Ti idh i , Sunun, no. 650; Ibn Mgjah, no. 1840; al Nadi , Sunun, no. 2593; Ibn Hanbal, Musnad, vol. 1,53, 101 and vol. 2 , 9 4 180,200. Ibn Qudhah, al Mugknl: "Ma&, al Muwa#a', vol. 2, 181. *'A1 ShayW-, d&l, vol. 4, Hyderabad Dakkan: Mirat al Ma'- al ' U m - y a h , 1386/1966), 451-2. There is a variation in the reports related by Ma& and al Shayba- concern@ the amount of dirhams. MaWs report mentions twelve thousand d u b , while al S l t a y W s says ten thousand. The lauer seems to be the more accurate, because the proportional reMion between a duham and a dinar was one to ten. In the chapters on zalrah, theficq&-' sa that the nisab for zakah is twenty dinars or two hundred d u h . ~ e e ~bn ~ u m , ai"Mughn< vol. 7,760. 486 The American Journal of Islamic Social Sciences 9:4 rule to fit the new conditions. Recognizing the validity of the traditional way for those who were still conducting their business affairs on a non- monetary basis, he allowed the traditional method of payment to continue. Abii HarSfah 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 dtw& system and prescribed stipends for the people from the buyt a2 md2 (treasury), he ruled that such payments would themfter be payable only in dirhams, dinars, and camels.21 It ap- peats that the reason for this change was that these three items had by that time emerged as the real wealth of the people. The Banafi and MiiliEfuqaha-’ 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 Wtulafi’ a2 riishidfin accepted useful practices and customs from outside of their own communities. An ex- ample of this is the implementation of the ‘ushir and the &win systems. Most sowes agree that ‘Umar introduced the system of kharij,,’ for before his ruie there was no wtardj in the classical jiqh-sense of land tax. This was a custom borrowed from the Persians and the Romans.” TabataE’i says that after its introduction and adoption, it generally fol- lowed the Sassanid practice, especially in the eastern provinces. Morony says that the Sassanid financial bureaus, diwdn a2 khurdj and diwdn a2 nafuqdt, were maintained in Iraq after that area’s incorporation into the Muslim realm.= Abii ‘Ubayd relates that the khulafi’ a2 riishidin allowed the inhabitants of these conquered lands to live in their own territories and to conduct their affairs according to their own faith and Another pre-Islamic custom sanctioned by the early Muslim rulers 2’A1 Shaybhi, af A d , vol. 4, 452. “A1 Qarafi a1 Furaq, vol. 3,288; Ibn ‘,&bidin, ”Nashr a1 ‘Arf,” in MajrnG‘ Rasd’il (Lahore: Suhaiil Academy, 1396/1976), 120, 122, 125; MajaUat a1 A h k h a1 ‘AdlQah (Civil Law of the Ottoman Caliphate), article 39. ”Abii Yiisuf, a1 Khartij (Cairo: Maktabat al SalafIyah, 1976), 26, 28, 30; Abii ‘Ubayd, al Arnwd, 59-60. *‘Ibn @&ah, al KharGj (Iraq: Df al RaShTd, 1981), 8; Y&yii ibn Adam, al Kharq (Beirut: Df al Ma’iirif, 1399/1979), 7-8. He mentions that the NabtT:f were sub- jugated by the Persians, to whom they paid khardj. =H. M. T a b W i , KharZj in Islamic Law (London: 1983), 28-9; M. G. Morony, 26Abii ‘Ubayd, a1 Amwrfl, 102. Iraq c@er the Muslim Conquest (Princeton: 1984), 51-2. Faruqi: Consideration of ‘Vrf 487 was that of qasiimah.” This penalty was paid by the male membefs of the tribe in the case of murder. Under ‘Umar and his new diwin system, the blood money was to be paid by the people sharing in the diwiin in which the murderer had been registered.28 ‘Ushlzr, 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 Abii M i S al Ash‘ari.29 The merchants of Manbij wanted to market their merchandise in.Islamic lands and so asked ‘Umar for permis- sion on the ground that they would pay ‘ushzir. ‘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 ZiyHd ibn Hudayr a1 Asadi as tax collector in Iraq and Syria.30 Diwiins (public registries) were also established according to the Per- sian tradition. A1 Miiwardi states that once when ‘Umar received a large amount of suduquh from Bahmin, he consulted the Companions on how it should be managed. One Companion, Hurmuzan the Persian in one re- port, was familiar with the Persian diwiin system and explained it to ‘Umar. Khiilid ibn a1 Walid, who was also at this meeting, related what he had seen in Syria, where apparently the Byzantine rulers had their own diw&z system. ‘Umar approved these proposals and established the diwiin system in M a d i ~ h . ~ ’ Abii HilHl a1 ‘Ash15 (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 a1 Qalqa- shiindi, was to direct the pilgrims from ‘Arafah to Muzdalifah. This cus- tom was maintained by the khulufii’ ul rishidlzn and their successors for a long time?2 The custom of lighting a fire at Muzdalifah was not impor- nAl ‘Aska~T, Kitib a1 AwZil (Madlnah: 138511966), 36-7; al Sarakhsi, a1 MahsEt, vol. 26, 107-9; al ‘Am ‘Umalzh, vol. 24, 59; Ibn Hajar, Fath, vol. 15,259; al Shaw- k b i , Nayl, vol. 7, 183-5. =A1 SaralQsi, a1 M a h f , vol. 26, 110; Ibn al H W , Sharh F a ~ h al Q&?, vol. 8, 402-3. 29Abii Yiisuf, a1 KharGj, 145-6; Y&yP ibn Adam, al Kharcfj. 125-6. %Abii Yiisuf, a1 Kharrfj, 146. 3’Al MPwardi, a1 A h h (Cairo: M e a al E b i al Yalabi, n.d), 199-200. %A1 ‘Ash-, Kit& a1 Awi’ i l 28; al Qalqashiindi, Subh al A ‘shci, vol. 1 (Cairo: al M u ’ d al MiSrfyah al ‘ h a h , 138311962). 409. 488 The American Journal of Islamic Social Sciences 9:4 tant 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 pil- grimage 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 vese, “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 The trade carried out at the markets of ‘Ukiiz, Majannah, and Dhii a1 Majiiz had tremendous economic significance and was a major means of increasing the people’s prosperity. As Islam en- courages trade and the sale of merchandise, there was therefore no reason to forbid this useful pre-Islamic custom. Views of the Fuqaha“ The fuqahii’ fully understood the need to reconcile the space-time requirements of the Shari‘ah. They developed elaborate methods of ijti- had 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 fuqah-’ defied ‘urf as a recurring practice that has been established among the people and is acceptable to those of sound nature (al tabi-ah al ~ a l f m a h ) ~ ~ and used it as a guiding principle in their deli- berations. 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: ‘ddah, ta‘drn~l,~’ and ‘ama1.36 33Al Tabari, Tabi?, vol. 2, 1646; al Q w b i , Tabz?, vol. 2 (Beirut: Diir a1 Ma‘rifah, 1392/1972), 413; B u m - , Sub$, vol. 1, part 3, 82. ”Ibn Nujaym, a1 Ash6dh wa a1 Nqd’ir (Cairo: Mu’assassah a1 Halabi, 1387/1968), 93. 35Al Shiitibi, a1 Muwdfqdt, vol. 2 (Cairo: Matba‘ah M. A. Sabih, 1969-70), 211-5; a1 Suyiiti, a1 Ashbrih, (Cairo: Musafa al Bcibi al Balabi, 1378/1959), 91ff; Ibn Nu- jaym, al Ashbcih, 92-3; Ibn Farbiin, Takirat a1 Hukk&z, vol. 2 [on the margin of Ulaysh, Fafh al ‘Alial Mdfik] (Cairo: Mwtafa al BSbi al Halabi, 1378/1958), 57. Faruqi: Consideration of ‘Urf 489 Thefuqahii’ laid down several conditions that had to be met if the ‘urfin 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. Thefuqahd’ do not consider such ‘urf when they are formulating the rules;37 b) It should exist at the time of contract or commercial transaction. If it came later, it cannot be c~nsidered;~~ and c) It should be general and universal instead of belonging to a particular locality or people (‘urf a1 k h d - s ~ ) . ~ ~ This last condition is subject to dispute, for Abii Y W and some Hanafi fuqahii’ regarded it as authoritative.4’ The Hanafi and Miililafiqahd’ understood the social and political significance of ‘urfand thus stressed it more than the other schools. They applied the doctrines of ist iban and a1 ma.ydib a1 mursalah to accom- modate pre-existing @hilt customs that were in accordance with Islamic principles. While discussing the principles of ‘urfand ‘ddah, a1 ‘hi& specifically refers to the Hanafi doctrine of istihiin. 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 pattons. As this is the case, there is no need for q i y a (analogy) or to spell out such rules before entering the fa~ility.~’ Abii Hanifah is reported to have said that ‘urfdetermines and inter- prets the actual meanings of terms commonly used in a society. However, custom has no legal effect if it is contradicted by a n a . y ~ . ~ ~ The taking of an oath is based on this principle, for ‘urJ not the original or the literal meaing~;~ determines the meaning of the words used when taking an 36BukhfM, $aM, vol. 1, part 3, 103. Thefuqahd’ do not use the word ”sunnah” when they discuss ‘urfas a principle, because this term came to be used exclusively for the practice of the Prophet. ”Al Sarakhsi, a1 MabsCi, vol. 9, 17 and vol. 23, 18; Ibn ‘Abidin, Nashr al ‘Ad 115. 381bn Nujaym, a1 Ashbrfh, 1010; al Suytiti, a1 Ashbdz, 96. 39Al Suyiiti, a1 Ashhih, 92; Ibn Nujaym, a1 Ashbdh, 99. 401bn Nujaym, a1 Ashbbh, 102-3; Ibn ‘Abidin, Nashr a1 ‘Ad 116. 4’Al ‘ h i d i , al Ihkrim, vol. 4 (Cairo: Mafba’at al Ma‘aif, 133y1914), 212. “Al Sarakhsi, a1 Mahit, vol. 9, 17. 431bid., vol. 8, 135. 490 The American Jomal of Islamic Social ScienceS 9:4 oath. For example, if a pemn swears that he/she will not drink water and then drinks nubidh (dates or raisins left in a waterskin long enough to produce sweetened water), he/she has not broken his/her oath, because, according to 'urj the word ""water" is never applied to nabidh.& Another example is seen in the case of business partners. The travel-related expen- ditures of an active partner (mu&irib) 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, mamage, divorce, oath-taking, and shammpping contractsM In the words of Schacht, custom is recognized as a restrictive element in dispositions and cbntracts 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 pmperty, but movable property (i.e., books) was also accepted if it was in line with the prevailing Abii Ym-fah would give up qiy& only in preference for 'urJ: 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. Qiya would allow this only on the condition that it had been specifically mentioned in the purchase contract. If such were not the custom, q iya would be required?* Similarly, a1 Shaybiini considers custom to be a source of law, par- ticularly in the realm of international law. Some of his assertions became very popular and were widely adopted by thefuqahii'. For example: 'urf is decisive:" "evidence fmm custom is like that from n a ~ ~ " ; ""what is known by 'urfis like the condition laid by the nays"; "a general state- ment 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 %id., 186-8. 'mid., vol. 22, 62-3. *See examples in aI Sarakhsi, al Mabscr, vol. 8, 135-6; vol. 12, 142-3; vol. 17, 90 ff; VOI. 18, 190 E, VOI. 19, 39, 77,93, 100, 117, 118; V O ~ . 22, 62-3; VO~. 23, 18-36; V O ~ . 24, 30, vol. 30, 199. "Schacht, An Introduction to lslamic LQW (Oxford: Oxford University Press, 1982), 62, 126, 199. "A1 SarakbS, a1 Mabct, vol. 12, 199. Faruqk Consideration of ‘Urf 49 1 to particularize a general ~ule.’‘~~ Ibn ‘Abidin, perhaps the first Banafi jurist to deal specifically and exclusively with this subject, repeats these maxims in his Nashr a1 ‘ A r f F Bind’ Ba‘d a1 A h - m ‘ala a1 ‘Urf, in which he deals with most of thefiqhiissues based on ‘urfand ‘iidah. Ibn Nujaym, another Banafi faqzh, also discussed ‘urf at length, but he fol- lowed a1 Suyiiti in both style and methodology.5o The K l i k i jurists also accept custom and usage as somes of de- cisive authority. This is reflected in such Mdiki treatises as al Muwatta’, a1 Mudawwanah, and Fatlz a1 ‘Al ia l Mdik (a collection of Mlliki fatiiwd compiled by Mubammad Allmad ‘Ulaysh [d. 1299 AHI). The early Wliki scholars did not pay a great deal of attention to the ad- mission and discussion of the legal role of custom and usage. Those in North Africa applied ‘amal in a broad sense; they included the ‘urfand ‘adah of all nations and areas. According to Coulson, the concept of ‘amal developed from the center of Qayrawh and was consistently ap- plied in practice by the q d c 5 ’ All of the major legal schools take local custom into consideration. The Mlliki 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 ijmd‘.52 According to Basan’s analysis of Mdik’s concept of ‘amal, Miilik refers to three types of agreed-upon practices: a) The practice of the people of Madinah. K l i k allows m u d - qcit (a sharecropping contract over the lease of a plantation, limited to one crop period) because the people of Madinah practiced it; b) The pmctice of the scholars of Madinah. Mllik regards fasting for six days during Shawwll as an innovation, because the scholars of Madinah (ah1 a1 ‘ilm wa alfiqh) did not observe these fast days; and c) The practice of poli- tical authorities. K l i k , 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.ff53 49Hamidullah, ’’Muslim Conduct of State,” in a1 Shaybani, Sharh Sir& a1 KabP (Hyderabad: n.d.), vol. 1, 194-8, vol. 2, 296, vol. 4, 16, 23-5. %n ‘Abidin, Nushr a1 ‘Ad 114-47; al Suyiiti, a1 Ashbih and Ibn Nujaym, ul AshbA. s’COulson, ”Muslim Custom and Case Law,” in Z’he World of Islam, vol. 6, (1959) no. 1-2, 22. %A1 BSiji, Abii al Walid, a1 Minhuj (Park 1978), 142-3. S3Ahmad Hasan, Early Development of Islamic Jurisprudence (Islamabad: Islamic Research Institute, 1970), 167-70. 492 The American Journal of Islamic Social Sciences 9:4 ‘Abd All&, who has studied Miilik’s concept of ‘amat!, states that M l i k opined that the customs of any nation are to be given due consi- deration in formulating legi~lation.’~ However, the ‘amal of the people of M a d i d is unique and not like the customs of other people or countries, for Milik uses it as the most authoritative legal argument in his legal theory?’ A1 Fzisi suggested that Milik looked upon the ‘amal of the people of Madinah as a sue criterion to follow when trying to teconcile differences in opinion among the fuqahii’. This hypothesis is supported by ‘AM All& in his analysis of Klik‘s terminology in al Muwatta’?6 There are also certain differences between ‘urfand Milik’s doctrine of ‘amal. For example, ‘urfdoes not command any spiritual authority, while ‘amal embodies spiritual authority. MZlik also sees it as a nass. Traces of the Mdiki doctrine of ‘amal are found in the early history of Islam. A1 Tabari states that the people differed on the issue of who should succeed ‘Uthmiin after his assassination. A group of the Com- panions said that they would wait, observe what the people of Mad-3d-t did, and then follow them?7 ‘Ali is also reported to have said that the matter belonged to the people of Madinah.’* Waki’ mentions that Ibn H a m (d. c. 120 AH) was a qddfin Madinah at a time when someone who had been designated amfr mentioned his difficulty in making deci- sions when the jurists themselves held different opinions on a specific issue. Ibn U a m advised him to issue his decision based on the practice of the people of Madinah, if it were available on that particular issue, be- cause their ‘amal is sound and valid?’ However, such laterfuqahd’ as a1 Shiitibi and Ibn Fahiin explicitly mention this specific ‘amal as an effective force in the formation of law. A1 ShZtibi (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 w s , or other shar‘tevidence. 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 pri- %U. F. ‘AM Allah, ”Malik’s Concept of ‘Amal,“ Phd. diss., Univemity of Chicago, ”Ibid., 380ff. %id., 382. ”A1 TabarT, TWzU, vol. 4, 442. %bid., vd. 4, 456. 1978, 38Off. ’%a16‘, Akhbrsr a1 Q&, vol. 1, 143-4. Faruqk Consideration of ‘Urf 493 vate parts is affirmed by the Sh-‘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 SharT‘ah and are therefore mub$t (permissible). These are taken into Consideration during the process of reaching a judgment, but they are not binding. For example, a1 Shzitibi discusses a practice that was preva- lent during his time and in his am: 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 (murzi‘uh). 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 det- rimental to a person’s proper conduct.60 A1 Shiitibi also upholds a close relation between the doctrines of ma.yh6uh and ‘urfon one hand and mahtains 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 mwdlih, and they play an important role in fulfilling the purposes of the Shari‘ah.6‘ Ibn Farhiin, a Miiliki jurist and contemporary of a1 Shiitibi, also dis- cusses several rulings in which ‘urfis decisive.62 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 pre~edence.~~ In commercial transactions, we find jurists taking customary laws and practices into con- sideration. 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.64 Whenever ‘ u r f i s changed, the legal effect is also liable to change. 6oAl Sktibi, a1 Muwcrfodt, vol. 2, 209-10. ‘%id., 220-33. See also A1 Azmeh, “Islamic Legal Theory and the Appropriation of Reality,” in Islamic Law, 260-1. ‘%m F&iin, T h i r d a1 &d.kzim; on the margin of F d h al ‘ A l i a l M d i k , vol. 2, see “ E b fi al QaW bi al ‘Urf wa al ‘&ah,” 75ff. =Wid., 67. %id., 64-6. 494 The American Journal of Islamic Social Scimces 9:4 The cases of marriage, divorce, will, oath-taking, and dealings in which customary practice is significant have received due legal considerati~n.~~ Ibn Fa&h explains another dimension of the'significance of 'urf: If a mufti, for example, goes to a country where different traditions and cus- toms are established, he should not give any legal opinion unless he is well awarc of the customs and conventions of the country.66 Imiim al S M ' i does not discuss 'urfand ' d u h as legal sources or as authentic legal arguments in d Riscrlah or in a1 Umm. However, there is evidence that he accepted 'urf as a valid argument. On the matter of theft, for example, he lists bin (normal safe-keeping or protection) as an essential condition for the implementation of the requisite punishment. The exact definition of hin, however, may be decided by 'ur$ He men- tions the example of a case of goods left lying in an open place. To determine whether or not it enjoyed sufficient hin, one would have to de- termine if the owner habitually left it in that same place and whether he regarded it as protected. If so, the condition of bin would be He also says that the Jurfn (the place in which dates or grain are kept) is regarded as protected, while a fence around a gatden or a field is not, because people accepted the former as being protected and the latter as being unprotected.m According to a1 Shifi'i, this was the custom in his time.69 This 'urfhad to be considemi when a case of stealing from these places was brought before a judge. It also appears from the discussion of a1 Ramli that 'urfand 'cSdah help to determine hin. 70 A1 Miwardi (d. 450 AH), who may be thought of as an early Shifi'i jurist, discussses wCZ ulfiqh in the context of practical judgment. He maintains that both reason and 'urfmust be used when making decisions and settling matters. All legal systems, he says, follow this pro~edure.~' A1 Khatib al Baghdiidi, another Shifi'i jurist, insisted that the muftis and q&f& must be aware of the people's customs and traditions. He %id., 66-7. %id., 71. mAl SWi'i, al Umm, vol. 6, 148-9. "Ibid., 148. @A1 Ramls, Nihdyat a1 Muhrrfj, vol. 7 (Cairo: Mugtafa a1 E b i al Ijalabi, 1386/1967), 439-48. mA1 ShFtfi'i, a1 Umm, vol. 6, 5-7. 7'Al Mtiwdi, Adab al Q&f< vol. 1 (Baghdad: Mgba'at a1 k&d, 1391/1971), 135- 6. Faruqk Consideration of 'Urf 495 maintained that without this knowledge, they would be unable to under- stand the cases in the proper perspective and would themfore run the very real risk of making inappropriate legal A1 JuwayHi (d. 478 AH) points out the significance of customs and traditions by saying that ijmd' is proved by uninterrupted ' ~ r f ' ~ As was shown earlier in this paper, a1 SEfi'i and the Shiifi'ifiquha' accepted the authority of ijmd'." A1 G h a d l i confines his discussion to lexicography, in which he divides wonk 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 'cidah in forming legal rules.75 A1 SuyW (d. 91 1 AH) is perhaps the first Shiifi'i jurist to acknowl- edge the momentous impact of 'urfand 'iduh on social life. He discusses them theoretically as sources of law and mentions their practical appli- cation to legal issues. He refers to the &hi maxims discussed by the qaiwusayn ibn Muhammad (d. 462 AH), upon which, he claims, the S M ' i school of j q h is based. According to a1 Suyiiti, the fourth prin- ciple-usage is decisive-is derived from a saying attributed to the Prophet: "Whatever the Muslims see as good is good with Allah."76 Under the heading of this maxim, he discusses 'urfand 'iduh at length and affirms that there are countless legal issues which have been or can be solved by referring to these two sources.77 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 hisher oath if he/she were to eat fish, because people are not accustomed to applying the word Zuhm (meat) to fish. This is despite the fact that the Qur'an considers fish to fall under this cate- gory: "It is He Who has subjected to you the sea, so that you may eat nAl Khaib al Baghdidi, a1 Fuqih wa a1 Mutafaqqih, vol. 2 (Beirut: Diir al Da'wah a1 Sunnah, 1395/1975), 135-6. 73Al JuwaynI, GhiyLsth a1 Umam (Alexandria: DSr al Da'wah, 1402/1979), 39. "Muhammad Y. Faruqi, "Development of ljma': The Practices of the K h u f 6 ' a1 RBhidUn and the Views of the Classical Fuqahd'," American Journal of Islamic Social Sciences 9, no. 2 (Summer 1992):173-87). "Al Ghazziili, a1 Mustasfir, vol. 1 (Cairo: al Matba'ah al AmWyah, 1322), 325-6. 76Al Suyilli, a1 Ashhih wa a1 NaUf'ir, 7-100, Qai al Husayn was a l d m g Shiifi'i f q i h of the fifth century AH. "hid., 90. 496 The Americau Journal of Islamic Social Sciences 9:4 fresh labm from it."78 Another example concerns the usage of a word by the Shari'ah in a specific sem, which would make the literal meaning irrelevant. For example, if a person swears that he/she will not perform sulcsh (prayer), hisher 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 p~Z4ih.~~ The customary meaning is also given precedence in social transac- tions, for 'urf, according to a1 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 'urfis decisive." He says that whatever the Shari'ah states as being general and not limited or restricted in meaning, the prevailing 'urfmay fix the limits. To make his point, he cites the above-mentioned example of birz.'' In his discussion, a1 Suyiiti refers to many prominent fuquhd' who took 'urf and ' d u h into consideration while formulating their legal rulings: QGdi Uusayn (d. 462 a1 Shaykh Abij Zayd,8' a1 Baghawi (d. 516 a1 Isniiwi (d. 772 AH);' and a1 Riifi'i (d. 623 AH).*' We do not have any clear and definite opinion from Ibn Yanbal on ' u ~ $ Generally speaking, the earlyfuquhd' discussed only those sources that have religious significance or are sanctioned by the religious sources. a1 Subki (d. 771 Ibn a1 Sal& (d. 642 '%id., 93 (Qur'an 1614). '%id. '%id., 94. "Ibid., 95. =Ibid., 98. 831bid., 91-3. %Ibid., 91-7. "Ibid., 95. '%id., 9@9. "Ibid., 92. =Bid. 8%id., 91. Faruqk Consideration of 'Urf 497 However, he recognized the principles of istihstin and a1 m w d i h a1 mur- salah, as we discussed in "hr ly Fuqahii' on the Development of Ijti- had.'" Both of these principles cover 'urfand 'adah. Abii Diiwiid's (d. 275 AH) work, Mmd'il a1 Imdm Ahmad, comprises the legal opinions of Ibn Hanbal. In it, he discusses several issues in which 'urfand ' d b h were considered. For example, when Ibn Banbal was asked about hoarding (hubah), he answered that it can only be ap- plied 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." Abii Diiwiid also related Ibn Hanbal's views on many other fiqhf issues concerning commercial transactions without refering to either naSS or ijmci'. Obviously, in those cases he could not neglect the 'urj he accommodated it by considering the interest of the people." Ibn Qudsimah (d. 620 AH), the most prominent Banbali jurist, de- scribes both his opinion and that of Ibn Hanbal in al Mughni He men- tions that Ibn Hanbal accepted a weak report if he found that it c o m - ponded to local custom?3 Ibn Qudsimah himself recognizes 'utfand 'cidah as sources and refers to them in many fiqhf rulings?4 Ibn Taym-yah and Ibn a1 Qayyim accept 'urf and 'ddah in both theory and practice. Ibn Taym-yah divides names of things into three categories: a) 'Urfshar'i; by which he means such Islamic practices as imcin, salcih zakah, kufr, and nifdq. The meanings of these tenns are de- termined 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 Taym-yah, the Shari'ah does not confine the meanings of such words within certain limits; and c) Words possessing only a literal meaning.95 Another example of taking custom into consideration occurs when he discusses travelingY6 As one is allowed to shorten his/her prayers while Muhammad Y. Faruqi. "Early Fuqahd' on the Development of Ijtihad," Hanidard 90 Islani icus. "Abii Dawiid. Masd'il a1 Inidm Alimad, 191. %id. On the issue of hiring a skilled person for a specific job, see ibid., 206 Ibn Qudanah, a1 Mughn2; vol. 6, 485. See the issue of "khafii'ah." 93 wlbid., vol. 3, 561-2; vol. 6, 485; vol. 7, 18. "Ibn Taymiyah, Fardwd, vol. 19 (Makkah: 1399), 235. 961bid., vol. 19, 243-7. 498 The American Journal of Islamic Social Sciences 9:4 traveling, the definition of 'ftravelingn must be determined. Such a definition is provided by the prevailing 'urfof 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 traveler. The same is true of people who commuk to work. The people of Malckah, on the other hand, were considered to be travelers when they went to spend the night at Mina and 'Arafah during the hajj. They could therefore shorten their prayets, Other examples in which custom is applicable within a legal ruling is seen in the case of the hfiirah (expiation) for breaking one's oatk Here, one must feed ten poor people with the average food that he/she provides to hisher family. What is "average food" depends upon the local custom.w Ibn a1 Qayyim illustrates some cases in which customary evidence can be taken into ~onsideration.~~ He further states that the consideration of 'urfin some cases is an obligation (wdjib).99 According to him, it is effective and decisive in more than one hundred issues.'"'' Conclusion It is clear that the Sh- 'ah 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, 'cfdah, and all other methods of ijtihad are secondary (i.e., nonindependent, deriva- tive) sources. Rulings based on these secondary somces are allowed, pro- vided that they are in accordance with Islamic principles and norms. The khulafi' a1 riishidcn made use of local customs and practices whenever it was possible to do so. Thefiqahd' 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 be 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. "Ibid., vol. 19,252-3. See also Qur'an 589. =Ibn al Qayyim, af Turuq af Hukmouh, reprint (Cairo: Maktabat al Athariyah, ad.), %id., 89-9, 91, 114. '% al Qayyim, I ' h ~l Muwaqqi'in, vol. 2, 393-4; vol. 3, 3-9. 87-92.