does not require otherwise.'
own view.]
[37. Mahmassani, Falsafah al-Tashri`, p. 117. This author also quotes Shaykh Mustafa al-Ghalayini in support of his
Differences between Istislah, Analogy, and Istihsan
In his effort to determine the shar`i ruling on a particular issue, the jurist must refer to the Qur'an, the
Sunnah and ijma'. In the absence of any ruling in these sources, he must attempt qiyas by identifying a
common 'illah between a ruling of the text and the issue for which a solution is wanting. However, if
the solution arrived at through qiyas leads to hardship or unfair results, he may depart from it in favour
of an alternative analogy in which the 'illah, although less obvious, is conducive to obtaining a
preferable solution. The alternative analogy is a preferable qiyas, or istihsan. In the event, however, that
no analogy can be applied, the jurist may resort to maslahah mursalah and formulate a ruling which, in
his opinion, serves a useful purpose or prevents a harm that may otherwise ensue.
35.]
It thus appears that maslahah mursalah and qiyas have a feature in common in that both are applicable
to cases on which there is no clear ruling available in the nusus or ijma'. They also resemble one
another in the sense that the benefit that is secured by recourse to them is based on a probability, or
zann, either in the form of a 'illah in the case of qiyas, or of a rational consideration which secures a
benefit in the case of maslahah mursalah. However, qiyas and maslahah differ from one another in
certain respects. The benefit which is secured by qiyas is founded on an indication from the Lawgiver,
and a specific 'illah is identified to justify the analogy to the nass. But the benefit which is sought
through maslahah mursalah has no specific basis in the established law, whether in favour or against.
Maslahah mursalah in other words stands on its own justification, whereas qiyas is the extension of a
ruling which already exists.
[38. Cf. Sabuni, Madkhal, pp.134-
This explanation would also serve to clarify the main difference between maslahah and istihsan. A
ruling which is based on maslahah mursalah is original in the sense that it does not follow, or represent
a departure from, an existing precedent. As for istihsan, it only applies to cases on which there is a
precedent available (usually in the form of qiyas), but istihsan seeks a departure from it in favour of an
alternative ruling. This alternative may take the form of a hidden analogy (qiyas khafi), or of an
exception to a ruling of the existing law, each representing a variation of istihsan.
217; Sabuni, Madkhal, p.135.]
The Polemics over Maslahah
[39. Cf. Badran, Usul, pp. 216-
Principles of Islamic Jurisprudence ~
Kamali 243
The main point in the argument advanced by the opponents of istislah is that the Shari'ah takes full
cognizance of all the masalih; it is all-inclusive and there is no maslahah outside the Shari'ah itself.
This is the view of the Zahiris and some Shafi'is like al-Amidi, and the Maliki jurist Ibn al-Hajib, who
do not recognise maslahah as a proof in its own right. They maintain that the masalih are all
exclusively contained in the nusus. When the Shari'ah is totally silent on a matter, it is a sure sign that
the maslahah in question is no more than a specious maslahah (maslahah wahmiyyah) which is not a
valid ground for legislation.
[40. Khallaf, `Ilm, p.88; Badran, Usul, p. 213.]
The Hanafis and most Shafi'is have on the other hand adopted a relatively more flexible stance,
maintaining that the masalih are either validated in the explicit nusus, or indicated in the rationale
('illah) of a given text, or even in the general objectives of the Lawgiver. Only in the presence of a
textual indication can maslahah constitute a valid ground for legislation. The identification of the
causes (`ilal) and objectives, according to this view, entails the kind of enquiry into the 'illah that would
be required in qiyas. The main difference between this view and that of the Zahiris is that it validates
maslahah on the basis of the rationale and the objective of the Shari'ah even in the absence of a specific
nass. Both these views are founded in the argument that if maslahah is not guided by the values upheld
in the nusus there is a danger of confusing maslahah with arbitrary desires, which might lead to
corruption and mafsadah. Experience has shown that this has frequently occurred at the behest of rulers
and governors who have justified their personal wishes in the name of maslahah. The way to avoid this
is indicated in the Qur'an, in sura al-Qiyamah (75:36) where we read: 'Does man think that he has been
left without guidance?' The maslahah must therefore be guided by the values that the Lawgiver has
upheld. Hence there is no maslahah unless it is corroborated by an indication in the Shari'ah.
Usul, pp. 221,224; Khallaf, `Ilm, p. 88; Badran, Usul, p. 213.]
While commenting on istihsan, Imam Ghazali writes: `We
know that the masalih must always follow the shar'i indications; istihsan is not guided by such
indications and therefore amounts to no more than a whimsical opinion". As for maslahah mursalah, alGhazali
maintains that when it is not approved by the Lawgiver, it is like istihsan.
Principles of Islamic Jurisprudence ~ Kamali 244
[41. Abu Zahrah,
[42. Ghazali, Mustasfa, I,138.]
Al-Ghazali recognises the `accredited' maslahah, that is, when the maslahah is indicated in the nass. He
also approves of maslahah mursalah when it is based in definite necessity, that is, maslahah
daruriyyah. In the absence of a definite necessity, al-Ghazali maintains that maslahah is not valid.
Consequently, al-Ghazali does not approve of the remaining two classes of the masalih, namely the
complementary (hajiyyat), and the embellishments (tahsiniyyat).
[43. Ghazali, Mustasfa, I, 139-140.]
By making the
stipulation that the maslahah, in order to be valid, must be founded in definite necessity, however, alGhazali
is no longer speaking of maslahah
mursalah,
but of necessity (darurah),
which is a different
matter
altogether and governed by a different set of rules.
[44. Cf. Badran, Usul, p. 211.]
It thus appears that this
view only validates the type of maslahah which is referred to as maslahah mu'tabarah.
The opponents of istislah further add that to accept istislah as an independent proof of Shari`ah would
lead to disparity, even chaos, in the ahkam. The halal and haram would be held to be applicable in some place or to some persons and not to others. This would not only violate the permanent and
timeless validity of the Shari'ah but would open the door to corruption.
[45. Khallaf, 'Ilm, p.88.]
As already stated, the Hanafis and the Shafi`is do not accept istislah as an independent proof. Al-Shafi'i
approves of maslahah only within the general scope of qiyas; whereas Abu Hanifah validates it as a
variety of istihsan. This would explain why the Shafi`is and the Hanafis are both silent on the
conditions of maslahah, as they treat the subject under qiyas and istihsan respectively. They have
explained their position as follows: should there be an authority for maslahah in the nusus, that is, if
maslahah is one of the accredited masalih, then it will automatically fall within the scope of qiyas. In
the event where no such authority could be found in the nusus, it is maslahah mulgha and is of no
account. But it would be incorrect to say that there is a category of maslahah beyond the scope of the
nass and analogy to the nass. To maintain that maslahah mursalah is a proof would amount to saying
that the nusus of the Qur'an and the Sunnah are incomplete.
Badran, Usul, p. 213.]
[46. Abu Zahrah, Usul, p. 222; Mustafa Zayd, Maslahah, p. 61;
The opponents of istislah have further argued that the Lawgiver has validated certain masalih and
overruled others. In between there remain, the maslahah mursalah which belongs to neither. It is
therefore equally open to the possibility of being regarded as valid (mu'tabarah) or invalid (mulgha).
Since there is no certainty as to their validity, no legislation may be based on it, for law must be
founded in certainty, not doubt.
In response to this, it is argued that the Lawgiver has proscribed certain masalih not because there is no
benefit in them but mainly because of their conflict with other and superior masalih, or because they
lead to greater evil. None of these considerations would apply to maslahah mursalah, for the benefit in
it outweighs its possible harm. It should be borne in mind that the masalih which the Lawgiver has
expressly overruled (i.e. masalih mulgha) are few compared to those which are upheld. When we have
a case of masalih mursalah on which no clear authority may be found in the sources, and they appear to
be beneficial, they are more likely to belong to the part which is more extensive and preponderant
(kathir al-ghalib), not to that which is limited and rare (qalil al-nadir).
[47. Badran, Usul, p. 214.]
The Zahiris do not admit speculative evidence of any kind as a proof of Shari`ah. They have invalidated
even qiyas, let alone maslahah, on the grounds that qiyas partakes in speculation. The rules of Shari'ah
must be founded in certainty, and this is only true of the clear injunctions of the Qur'an, Sunnah and
ijma'. Anything other than these is mere speculation, which should be renounced.
As for the reports that the Companions issued fatwas on the basis of their own ra'y which might have
partaken in maslahah, Ibn Hazm is categorical in saying that 'these reports do not bind anyone'.
Hazm, Ihkam, VI, 40.]
Thus it would follow that the Zahiris do not accept maslahah mursalah, which they
consider to be founded in personal opinion (ra'y).
[50. Cf. Mustafa Zayd, Maslahah, p. 62.]
[48. Ibn Hazm, Ihkam, V, 55-56.]
Principles of Islamic Jurisprudence ~ Kamali 245
[49. Ibn The Malikis and the Hanbalis have, on the other hand, held that maslahah mursalah is authoritative and
that all that is needed to validate action upon it is to fulfill the conditions which ensure its propriety.
When these conditions are met, maslahah becomes an integral part of the objectives of the Lawgiver
even in the absence of a particular nass. Ahmad b. Hanbal and his disciples are known to have based
many of their fatwas on maslahah, which they have upheld as a proof of Shari'ah and an instrument of
protecting the faith, securing justice, and preventing mafsadah. They have thus validated the death
penalty for spies whose activity violates the maslahah of the Muslim community. The Hanbalis have
also validated, on grounds of maslahah, the death penalty for propagators of heresy when protecting the
maslahah of the community requires this. But in all this, the Hanbalis, like the Malikis, insist that the
necessary conditions of maslahah must be fulfilled. Maslahah must pursue the valid objectives of the
Shari'ah and the dictates of sound intellect, acting upon which fulfils a useful purpose, or serves to
prevent harm to the people.
[51. Cf. Mustafa Zayd, Maslahah, p. 60.]
Some of the more far-reaching instances of
maslahah in the Maliki doctrine may be summarised as follows:
1. Imam Malik validated the pledging of bay`ah (oath of allegiance) to the mafdul, that is the
lesser of the two qualified candidates for the office of the Imam, so as to prevent disorder and
chaos afflicting the life of the community.
[52. Shatibi, I'tisam, II, 303.]
2.
3. When the Public Treasury (bayt al-mal) runs out of funds, the Imam may levy additional taxes
on the wealthy so as to meet the urgent needs of the government without which injustice and
sedition (fitnah) may become rampant.
[53. Shatibi, I'tisam, II, 295.]
4.
5. In the event where all the means of earning a lawful living are made inaccessible to a Muslim,
6.
7.
he is in a situation where he cannot escape to another place, and the only way for him to earn a
living is to engage in unlawful occupations; he may do so but only to the extent that is
necessary.
Conclusion
[54. Shatibi, I'tisam, II, 300.]
Despite their different approaches to maslahah, the leading ulema of the four Sunni schools are in
agreement, in principle, that all genuine masalih which do not conflict with the objectives (maqasid) of
the Lawgiver must be upheld. This is the conclusion that both Khallaf and Abu Zahrah have drawn
from their investigations.
[55. Abu Zahrah, Usul, p. 224; Khallaf, `Ilm, p.85.]
The Shafi'i and Hanafi approach to maslahah
is essentially the same as that of the Maliki and Hanbali schools, with the only difference being that the
Principles of Islamic Jurisprudence ~
Kamali 246 former have attempted to establish a common ground between maslahah and the qiyas witch has an
identifiable `illah. Some Maliki jurists, including Shihab al-Din al-Qarafi have observed that all the
jurists are essentially in agreement over the concept and validity of maslahah mursalah. They only
differ on points of procedure: while some would adopt it directly, others would do so by bringing the
maslahah within the purview of qiyas.
[56. Qarafi, Furuq, II, 188; Abu Zahrah, Usul, p. 225.]
But Imam Malik's concept of
maslahah is the most far-reaching of the four Sunni schools. Since maslahah must always be
harmonious with the objectives of the Lawgiver, it is a norm by itself. Maslahah mursalah as such
specifies the general (`Amm) of the Qur'an, just as the `Amm of the Qur'an may be specified by qiyas. In
the event of conflict between a genuine maslahah and a solitary Hadith, the former takes priority over
the latter.
[57. Abu Zahrah, Usul, p. 225.]
The changing conditions of life never cease to generate new interests. If legislation were to be confined
to the values which the Lawgiver has expressly decreed, the Shari'ah would inevitably fall short of
meeting the masalih of the community. To close the door of maslahah would be tantamount to
enforcing stagnation and unnecessary restriction on the capacity of the Shari'ah to accommodate social
change. 'Abd al-Wahhab Khallaf is right in his assessment that any claim to the effect that the nusus of
the Shari'ah are all-inclusive and cater for all eventualities is simply not true. The same author goes on
to say: 'There is no doubt that some of the masalih have neither been upheld nor indicated by the
Shari'ah in specific terms.'
[58. Khallaf, `Ilm, p. 88.]
As for the concern that the opponents of maslahah mursalah have expressed that validating this
doctrine would enable arbitrary and self-seeking interests to find their way under the banner of
maslahah, they only need to be reminded that a careful observance of the conditions that are attached to
maslahah will ensure that only the genuine interests of the people which are in harmony with the
objectives of the Shari'ah would qualify. This concern is admittedly valid, but one which cannot be
confined to maslahah alone. Arbitrariness and the pursuit of self-seeking interests have never been
totally eliminated in any society, under any legal system. It is a permanent threat which must be
carefully checked and minimized to the extent that this is possible. But this very purpose will be
defeated if legislation on grounds of istislah were to be denied validity. To combat the evil of an
arbitrary indulgence which waves the banner of maslahah would surely have greater prospects of
success if the mujtahid and the Imam were to be able to enact the necessary legislation on grounds of
preventing harm to society. Consequently the argument that the opponents of maslahah have advanced
would appear to be specious and self-defeating.
Principles of Islamic Jurisprudence ~
Kamali 247
Chapter Fourteen: 'Urf (Custom)
As a noun derived from its Arabic root 'arafa (to know), 'urf literally means 'that which is known'. In its
primary sense, it is the known as opposed to the unknown, the familiar and customary as opposed to the
unfamiliar and strange. `Urf and 'adah are largely synonymous, and the majority of ulema have used
them as such. Some observers have, however, distinguished the two, holding that `adah means
repetition or recurrent practice, and can be used with regard to both individuals and groups. We refer,
for example, to the habits of individuals as their personal `adah. But `urf is not used in this capacity: we
do not refer to the personal habits of individuals as their `urf. It is the collective practice of a large
number of people that is normally denoted by `urf. The habits of a few or even a substantial minority
within a group do not constitute 'urf.
[1. Badran, Usul, p. 224; Ziadeh, ' 'Urf and Law ', p. 60; Isma'il, Adillah, p. 389.]
'Urf is defined as 'recurring practices which are acceptable to people of sound nature.' This definition is
clear on the point that custom, in order to constitute a valid basis for legal decisions, must be sound and
reasonable. Hence recurring practices among some people in which there is no benefit or which partake
in prejudice and corruption are excluded from the definition of 'urf.
Isma'il, Adillah, p. 388; Badran, Usul, p. 224.]
[2. Mahmassani, Falsafah (Ziadeh's trans.), p. 132;
`Urf and its derivative, ma'ruf, occur in the Qur'an, and it is the latter of
the two which occurs more frequently. Ma'ruf, which literally means 'known' is, in its Qur'anic usage, is
equated with good, while its opposite, the munkar, or 'strange', is equated with evil. It is mainly in this
sense that 'urf and ma'ruf seem to have been used in the Qur'an. The commentators have generally
interpreted ma'ruf in the Qur'an as denoting faith in God and His Messenger, and adherence to God's
injunctions. Thus the standard commentary on the Qur'anic phrase ta'muruna bi al-ma'ruf wa tanhawna
'an al-munkar (Al-Imran, 3:110) given by the exegetes is that 'you enjoin belief in God and in His
Messenger and enforce His laws, and you forbid disbelief and indulgence in the haram.'
1323-29), IV, 30; Ziadeh, ' 'Urf and Law ', pp. 60-61; Isma'il, Adillah, p. 401.]
The same interpretation is given to the term ' 'urf ' in
the text which occurs in sura al-A'raf (7:199): `Keep to forgiveness, enjoin `urf [wa'mur bi'l-`urf] and
turn away from the ignorant.' According to the exegetes, `urf in this context means fear of God and the
observance of His commands and prohibitions. But occasionally, ma'ruf in the Qur'an occurs in the
sense of good conduct, kindness and justice, especially when the term is applied to a particular
situation. It is only when `urf or ma`ruf is ordered generally without reference to a particular matter,
situation or problem that it carries the meaning of adhering to God's injunctions. The reason for the
position taken by the exegetes becomes apparent if one bears in mind Islam's perspective on good and
evil (husn wa-qubh) which are, in principle, determined by divine revelation. Hence when God ordered
the promotion of ma'ruf, He could not have meant the good which reason or custom decrees to be such,
but what He enjoins.
[4. Cf. Ziadeh,' 'Urf and Law', p. 62.]
Principles of Islamic Jurisprudence ~ Kamali 248
[3. Tabari, Tafsir, (Bulaq
This would also explain why `urf in the sense of custom is not given prominence in the legal theory of the usul al-fiqh, although it carries some authority, as we
shall presently explain.
Custom which does not contravene the principles of Shari'ah is valid and authoritative; it must be
observed and upheld by a court of law. According to a legal maxim which is recorded by the Shafi'i
jurist al-Suyuti, in his well-known work, al-Ashbah wa al-Nazai'r, 'What is proven by 'urf is like that
which is proven by a shar'i proof.' This legal maxim is also recorded by the Hanafi jurist al-Sarakhsi,
and was subsequently adopted in the Ottoman Majallah which provides that custom, whether general or
specific, is enforceable and constitutes a basis of judicial decisions.
Usul, p. 216; Mahmassani, Falsafah, p. 132.]
[5. The Mejelle (Tyser's trans.) (Art. 36); Abu Zahrah,
The ulema have generally accepted 'urf as a valid criterion for purposes of
interpreting the Qur'an. To give an example, the Qur'anic commentators have referred to `urf in
determining the precise amount of maintenance that a husband must provide for his wife. This is the
subject of sura al-Talaq (65:7) which provides: `Let those who possess means pay according to their
means.' In this ayah, the Qur'an does not specify the exact amount of maintenance, which is to be
determined by reference to custom. Similarly, in regard to the maintenance of children, the Qur'an only
specifies that this is the duty of the father, but leaves the quantum of maintenance to be determined by
reference to custom (bi'l-ma`ruf) (al-Baqarah, 2:233). The Shari'ah has, in principle, accredited
approved custom as a valid ground in the determination of its rules relating to halal and haram. This is
in turn reflected in the practice of the fuqaha', who have adopted 'urf, whether general or specific, as a
valid criterion in the determination of the ahkam of Shari'ah.
[6. Sabuni, Madkhal, p. 138; Isma'il, Adillah, p. 403.]
The
rules of fiqh which are based in juristic opinion (ra'y) or in speculative analogy and ijtihad have often
been formulated in the light of prevailing custom; it is therefore, permissible to depart from them if the
custom on which they were founded changes in the course of time. The ijtihad rules of fiqh are, for the
most part, changeable with changes of time and circumstance. To deny social change due recognition in
the determination of the rules of fiqh would amount to exposing the people to hardship, which the
Shari'ah forbids. Sometimes even the same mujtahid has changed his previous ijtihad with a view to
bringing it into harmony with the prevailing custom. It is well -known, for example, that Imam alShafi`i
laid the foundations of his school in Iraq, but that when he went to Egypt, he changed some of
his
earlier views owing to the different customs he encountered in Egyptian society.
Aghnides, Muhammedan Theories, p. 82.]
Customs which were prevalent during the lifetime of the Prophet and were not expressly overruled by
him are held to have received his tacit approval and become part of what is known as Sunnah
taqririyyah. Pre-Islamic Arabian custom which was thus approved by the Prophet was later upheld by
the Companions, who often referred to it through statements such as 'we used to do such-and-such
while the Prophet was alive'.
[8. Ziadeh,' 'Urf and Law ', p. 62; Abdul Rahim, Jurisprudence, p. 137; Mahmassani, Falsafah, p. 132.]
Islam
has thus retained many pre-Islamic Arabian customs while it has at the same time overruled the
oppressive and corrupt practices of that society. Islam also attempted to amend and regulate some of the
Arab customary laws with a view to bringing them into line with the principles of the Shari'ah. The
Principles of Islamic Jurisprudence ~ Kamali 249
[7. Abu Zahrah, Usul, p. 217; reverse of this is also true in the sense that pre-Islamic customs of Arabia influenced the Shari'ah in its
formative stages of development. Even in the area of the verbal and actual Sunnah, there are instances
where Arabian custom has been upheld and incorporated within the Sunnah of the Prophet An example
of this is the rulings of the Sunnah concerning the liability of the kinsmen of an offender (i.e. the
`aqilah) for the payment of blood money, or diyah. Similarly, the Sunnah which regulates certain
transactions such as mortgage (rahn), advance sale (salam) and the requirement of equality (kafa'ah) in
marriage have their roots in the pre-Islamic custom of the Arabs. There are also vestiges of pre-Islamic
custom in the area of inheritance, such as the significance that the rules of inheritance attach to the male
line of relationship, known as the `asabah. As for the post-Islamic custom of Arabian society, Imam
Malik has gone so far as to equate the amal ahl al-Madinah, that is the customary practice of the people
of Madinah, with ijma`. This type of 'amal ( lit.' practice') constitutes a source of law in the absence of
an explicit ruling in the Qur'an and Sunnah. Custom has also found its way into the Shari'ah through
juristic preference (istihsan) and considerations of public interest (maslahah). And of course, ijma`
itself has to a large extent served as a vehicle of assimilating customary rules which were in harmony
with the Shari'ah, or were based in necessity (darurah), into the general body of the Shari'ah.
Falsafah, p. 132; Sabuni, Madkhal, p. 143; Badran, Usul, p. 242.]
Conditions of Valid `Urf
In addition to being reasonable and acceptable to people of sound nature, `urf, in order to be
authoritative, must fulfill the following requirements.
1) `Urf must represent a common and recurrent phenomenon. The practice of a few individuals or of a
limited number of people within a large community will not be authoritative, nor would a usage of this
nature be upheld as the basis of a judicial decision in Shari'ah courts. The substance of this condition is
incorporated in the Majallah al-Ahkam al-`Adliyyah where it is provided that `effect is only given to
custom which is of regular occurrence' (Art. 14). To give an example, when a person buys a house or a
car, the question as to what is to be included in either of these is largely determined by custom, if this is
not otherwise specified in the terms of the agreement. More specifically, one would need to refer to the
common practice among estate agents or car dealers respectively. But if no custom could be established
as such, or there are disparate practices of various sorts, no custom could be said to exist and no judicial
order may be based on it. Custom, in order to be upheld, must not only be consistent but also dominant
in the sense that it is observed in all or most of the cases to which it can apply. If it is observed only in
some cases but not in others, it is not authoritative. Similarly, if there are two distinct customary
practices on one and the same matter, the one which is dominant is to be upheld. If, for example, a sale
is concluded in a city where two or three currencies are commonly accepted and the contract in question
Principles of Islamic Jurisprudence ~ Kamali 250
[9. Mahmassani, does not specify any, the one which is the more dominant and common will be deemed to apply.
Mahmassani, Falsafah, pp. 133-134; Sabuni, Madkhal, pp. 139-140; Isma'il, Adillah, pp. 398-399.]
2) Custom must also be in existence at the time a transaction is concluded. In contracts and commercial
transactions, effect is given only to customs which are prevalent at the time the transaction is
concluded, and not to customs of subsequent origin. This condition is particularly relevant to the
interpretation of documents, which are to be understood in the light of the custom that prevailed at the
time they were written. Consequently, a rule of custom which is prevalent at the time the interpretation
is attempted will not be relevant if it only became prevalent after the document was concluded. For it is
generally assumed that documents which are not self-evident and require clarification can only convey
concepts that were common at the time they were written.
[11. Mahmassani, Falsafah, p.134; Sabuni, Madkhal, p. 143.]
3) Custom must not contravene the clear stipulation of an agreement. The general rule is that
contractual agreements prevail over custom, and recourse to custom is only valid in the absence of an
agreement. Since contractual agreements are stronger than custom, should there arise a conflict between
them it will normally be determined in favour, of the former. If for example the prevailing custom in
regard to the provision of dower (mahr) in marriage requires the payment of one-half at the time of the
conclusion of the contract and the remainder at a later date, but the contract clearly stipulates the
prompt payment of the whole of the dower, the rule of custom would be of no account in the face of this
stipulation. For custom is only to be invoked when no clear text can be found to determine the terms of
a particular dispute; and whenever a clear text is in existence, recourse to custom will be out of the
question. To give another example: the costs of formal registration in the sale of real property are
customarily payable by the purchaser. But if there is a stipulation in the contract that specifically
requires the vendor to bear those costs, then the custom will be of no account and the purchaser will not
be required to pay the costs of registration.
[12. Isma'il, Adillah, p. 400.]
4) Lastly, custom must not violate the nass, that is, the definitive principle of the law. The opposition of
custom to nass may either be absolute or partial. If it is the former, there is no doubt that custom must
be set aside. Examples of such conflicts are encountered in the bedouin practice of disinheriting the
female heirs, or the practice of usury (riba) and wine-drinking. The fact that these are widely practiced
is of no consequence, as in each case there is a prohibitory nass, or a command which always takes
priority, and no concession or allowance is made for the practice in question. But if the conflict between
custom and text is not absolute in that the custom opposes only certain aspects of the text, then custom
is allowed to act as a limiting factor on the text. The contract of istisna`, that is, the order for the
manufacture of goods at an agreed price, may serve as an example here. According to a Hadith, 'the
Prophet prohibited the sale of non-existing objects but he permitted salam (i.e. advance sale in which
the price is determined but delivery postponed)'.
[13. Bukhari, Sahih, III, 44 (Kitab al-Salam, Hadith nos. 1-3); Badran, Usul, p. 121.]
Principles of Islamic Jurisprudence ~ Kamali 251
[10.This Hadith is general in that it applies to all varieties of sale in which the object of sale is not present at
the time of contract. Salam was exceptionally permitted as it was deemed to be of benefit to the people.
The general prohibition in this Hadith would equally apply to istisna' as in this case too the object of
sale is non-existent at the time of contract. But since istisna' was commonly practiced among people of
all ages, the fuqaha have validated it on grounds of general custom. The conflict between istisna' and
the ruling of the Hadith is not absolute, because the Hadith has explicitly validated salam. If realisation
of benefit to the people was the main ground of the concession that has been granted in respect of
salam, then istisna` presents a similar case. Consequently the custom concerning istisna` is allowed to
operate as a limiting factor on the textual ruling of the Hadith in that the Hadith is qualified by the
custom concerning istisna'.
Another example where a general text is qualified by custom is when a person is appointed to act as
agent (wakil) for another in respect of concluding a particular contract such as sale or marriage. The
agent's power to conclude the contract, although not limited by the terms of his appointment, is
nevertheless qualified by the prevalent custom. In the matter of sale, for example, the expected price
which represents the fair market price would be upheld, and the currency of the locality would be
accepted in exchange.
According to a Hadith, the Prophet is said to have forbidden conditional sale, that is, sale with
conditions that may not be in agreement with the nature of this contract. An example of this would be
when A sells his car to B for 10,000 dollars on condition that B sells his house to A for 50,000 dollars.
The Hadith quoted to this effect provides that the Prophet 'forbade sale coupled with a condition'.
However, the majority of Hanafi and Maliki jurists have validated conditions which are accepted by the
people at large and which represent standard custom. Here again the general prohibition is retained, but
only conditions that are adopted by `urf are upheld; the general terms of the Hadith are, in other words,
qualified by custom.
[14. Shawkani, Irshad, p. 161; Abu Zahrah, Usul, p. 217; Badran, Usul, p. 230.]
It would be useful in this connection to distinguish 'urf from ijma' , for they have much in common with
one another, which is why they are sometimes confused. But despite their similarities, there are
substantial differences between `urf and ijma` which may be summarised as follows:
1) `Urf materialises by the agreement of all, or the dominant majority of, the people and its existence is
not affected by the exception or disagreement of a few individuals. Ijma` on the other hand requires, for
its conclusion, the consensus of all the mujtahidun of the period or the generation in which it
materialises. Disagreement and dissension has no place in ijma`, and any level of disagreement among
the mujtahidun invalidates ijma`.
Principles of Islamic Jurisprudence ~
Kamali 252
2) Custom does not depend on the agreement of the mujtahidun, but must be accepted by the majority
of the people, including the mujtahidun. The laymen have, on the other hand, no say in ijma' on
juridical matters, which require the participation only of the learned members of the community.
3) The rules of `urf are changeable, and a custom may in course of time give way to another custom or
may simply disappear with a change of circumstances. But this is not the case with ijma`. Once an ijma'
is concluded, it precludes fresh ijtihad on the same issue and is not open to abrogation or amendments.
`Urf on the other hand leaves open the possibility of fresh ijtihad, and a ruling of ijtihad which is
founded in 'urf may be changed even if the `urf in which it originates does not.
4) Lastly, `urf requires an element of continuity in that it can only materialise if it exists over a period
of time. Ijma` can, on the other hand, come into existence whenever the mujtahidun reach a unanimous
agreement which, in principle, requires no continuity for its conclusion.
Types of Custom
[15. Badran, Usul, p. 225; Isma'il, Adillah, p. 291.]
Custom is initially divided into two types, namely verbal (qawli) and actual (fi'li). Verbal `urf consists
of the general agreement of the people on the usage and meaning of words deployed for purposes other
than their literal meaning. As a result of such agreement, the customary meaning tends to become
dominant and the original or literal meaning is reduced to the status of an exception. There are many
examples in the Qur'an and Sunnah of words which have been used for a meaning other than their literal
one, which were as a result commonly accepted by popular usage. Words such as salah, zakah and hajj
have been used in the Qur'an for purposes other than their literal meanings, and this usage eventually
became dominant to the extent that the literal meaning of these words was consigned to obscurity. The
verbal custom concerning the use of these words thus originated in the Qur'an and was subsequently
accepted by popular custom. We also find instances of divergences between the literal and the
customary meanings of words in the Qur'an where the literal meaning is applied regardless of the
customary meaning. The word walad, for example, is used in the Qur'an in its literal sense, that is
`offspring' whether a son or daughter (note sura al-Nisa', 4:11), but in its popular usage walad is used
for sons only. Another example is lahm, that is, meat, which in its Qur'anic usage includes fish, but in
its customary usage is applied only to meat other than fish. Whenever words of this nature, that is,
words which have acquired a different meaning in customary usage, occur in contracts, oaths and
commercial transactions, their customary meaning will prevail. For example, when a person takes an
oath that he will never 'set foot' at so-and-so's house, what is meant by this expression is the customary
meaning, namely, actually entering the house. In this sense, the person will have broken the oath if he
enters the house while never 'setting foot', such as by entering the house while mounted. But if he only
Principles of Islamic Jurisprudence ~
Kamali 253
technically sets his foot in the house without entering it, he will not be liable to expiation (kaffarah) for
breaking his oath.
[16. Isma'il, Adillah, pp. 392-393; Sabuni, Madkhal, p. 137; Badran, Usul, p. 226.]
For this would not amount to
what is customarily meant by 'setting foot in the house.
Actual `urf consists of commonly recurrent practices which are accepted by the people. An example of
actual 'urf is the give-and-take sale, or bay' al-ta'ati, which is normally concluded without utterances of
offer and acceptance. Similarly, customary rules regarding the payment of dower in marriage may
require a certain amount to be paid at the time of contract and the rest at a later date. The validity of this
type of custom is endorsed by the legal maxim which reads: 'What is accepted by 'urf is tantamount to a
stipulated agreement (al-ma'ruf `urfan ka'l-mashrut shartan).' Consequently, actual `urf is to be upheld
and applied in the absence of an agreement to the contrary.
`Urf, whether actual or verbal, is once again divided into the two types of general and special: al-urf al`amm
and
al-'urf
al-khass respectively.
A general `urf
is one which is prevalent everywhere and on
which
the people agree regardless of the passage of time. A typical example of this is bay
al-ta'ati to
which
reference has already been made. Similarly, the customary practice of charging a fixed price for
entry
to public baths is another example of general 'urf,
which is anomalous to the strict requirements of
sale
(as it entails consuming an unknown quantity of water) but the people have accepted it and it is
therefore
valid. It will be further noted that in their formulation of the doctrine of istihsan,
the Hanafi
jurists
have validated departure from a ruling of qiyas
in favour of general 'urf.
This has already been
elaborated
in the separate chapter on istihsan.
Theories, p. 81.]
[17. Abu Zahrah, Usul, p. 217; Sabuni, Madkhal, p. 138; Aghnides, Muhammedan
"Special custom" is 'urf which is prevalent in a particular locality, profession or trade. By its very
nature, it is not a requirement of this type of 'urf that it be accepted by people everywhere. According to
the preferred view of the Hanafi school, special 'urf does not qualify the general provisions of the nass,
although some Hanafi jurists have held otherwise. Consequently, this type of 'urf is entirely ignored
when it is found to be in conflict with the nass. The general rule to be stated here is that the ahkam of
Shari'ah pertaining to the authority of 'urf only contemplate the provisions of general 'urf. A ruling of
qiyas, especially qiyas whose effective cause is not expressly stated in the nass, that is, qiyas ghayr
mansus al-'illah, may be abandoned in favour of a general `urf, but will prevail if it conflicts with
special 'urf. A number of prominent ulema have, however, given the fatwa that special 'urf should
command the same authority as general 'urf in this respect. The reason why general 'urf is given priority
over qiyas is that the former is indicative of the people's need, whose disregard may amount to an
imposition of hardship on them. Some Hanafi jurists like Ibn al-Humam have taught that 'urf in this
situation commands an authority equivalent to that of ijma', and that as such it must be given priority
over qiyas. It is perhaps relevant here to add that Abu Hanifah's disciple, al-Shaybani, validated the sale
of honeybees and silkworms as this was commonly practiced during his time despite the analogical
ruling that Abu Hanifah had given against it on the grounds that they did not amount to a valuable
Principles of Islamic Jurisprudence ~
Kamali 254
commodity (mal). Furthermore, the ulema have recorded the view that since 'urf is given priority over
qiyas despite the fact that qiyas originates in the nusus of the Qur'an and Sunnah, it will a fortiori be
preferred over considerations of public interest (maslahah) which are not rooted in the nusus. Having
said this, however, it would seem that cases of conflict between general 'urf and maslahah would be
rather rare. For 'urf by definition must be sound and reasonable, considerations which tend to bring 'urf
close to maslahah. For after all, 'urf and maslahah each in their respective capacities serve as a means
for the realisation of public welfare and the prevention of hardship to people.
And lastly, from the viewpoint of its conformity or otherwise with the Shari'ah, custom is once again
divided into the two types of approved or valid custom (al-`urf al-sahih) and disapproved custom (al'urf
al-fasid).
As is indicated in the terms of these expressions, the approved 'urf
is
one which is
observed
by the people at large without there being any indication in the Shari'ah
that it contravenes
any
of its principles. The disapproved custom is also practiced by the people but there is evidence to
show
that it a repugnant to the principles of Shari'ah.
We have already referred to the bedouin practice
of
disinheriting female relatives, and the prevalence of riba,
which although commonly practiced are
both
in clear violation of the Shari'ah,
and as such represent examples of al-'urf
al-fasid.
231; Isma'il, Adillah, p. 393.]
Proof (Hujjiyyah) of `Urf
Although the ulema have attempted to locate textual authority for 'urf in the Qur'an, their attempt has
not been free of difficulties. To begin with, reference is usually made to the Qur'anic text in sura al-Hajj
(22:78) which provides: `God has not laid upon you any hardship in religion.' This is obviously not a
direct authority on the subject, but it is argued that ignoring the prevailing `urf which does not conflict
with the nusus of Shari'ah is likely to lead to adhering hardship on the people, which must be avoided.
The next ayah which is quoted in support of `urf occurs in sura al-A'raf (7:199), but although this has a
direct reference to `urf, difficulties have been encountered in identifying it as its main authority. This
ayah, to which a reference has already been made, enjoins the Prophet to 'keep to forgiveness, and
enjoin `urf, and turn away from the ignorant'. According to the Maliki jurist Shihab al-Din al-Qarafi,
this ayah is explicit and provides a clear authority for `urf. According to this view `urf is clearly upheld
in the Qur'an as a proof of Shari'ah and an integral part of it.
226.]
Principles of Islamic Jurisprudence ~ Kamali 255
[18. Badran, Usul, p.
[19. Qarafi, Furuq, II, 85; Sabuni, Madkhal, p. 143; Badran, Usul, p.
The generality of ulema, however, maintain the view that the reference to `urf in this ayah is to the
literal meaning of the word, that is, to the familiar and good, and not to custom as such. But then it is
added: bearing in mind that approved custom is normally upheld by people of sound nature and
intellect, the Qur'anic concept of 'urf comes close to the technical meaning of this word. The literal or
the Qur'anic meaning of 'urf, in other words, corroborates its technical meaning and the two usages of the word are in essential harmony with one another. The commentators, however, further add that since
the word 'urf in this ayah can mean many things, including `profession of the faith', `that which the
people consider good', and of course `that which is familiar and known', as well as `urf in the sense of
custom, it cannot be quoted as textual authority for custom as such.
Ziadeh,' 'Urf and Law', pp.61-62.]
[20. Tabari, Tafsir, IV, 30; Isma'il, Adillah, pp. 401-402;
Among the indirect evidence in support of 'urf the ulema have also quoted the
following saying of the prominent Companion, `Abd Allah b. Mas'ud, that 'what the Muslims deem to
be good is good in the sight of God'.
Although many scholars have considered this to be a Hadith from the Prophet, it is more likely, as alShatibi
points out, to be a saying of `Abd Allah b. Mas`ud.
[21. Shatibi, I'tisam, II, 319. Mahmassani (Falsafah, p. 77) has also
reached the conclusion that this is the saying of `Abd Allah b. Mas'ud. But Amidi (Ihkam, I. 214) has quoted it as a Hadith.]
The critics have,
however, suggested that this saying/Hadith refers to the approval of `al-muslimun', that is, all the
Muslims, whereas `urf varies from place to place, and the approval of all Muslims in its favour cannot
be taken for granted. In response to this, it has been further suggested that `muslimun' in this context
only denotes those among them who possess sound intellect and judgement, and not necessarily every
individual member of the Muslim community.
[22. Cf. Isma'il, Adillah, p.402.]
The upshot of this whole debate over the authoritativeness of 'urf seems to be that notwithstanding the
significant role that it has played in the development of the Shari'ah, it is not an independent proof in its
own right. The reluctance of the ulema in recognising 'urf as a proof has been partly due to the
circumstantial character of the principle, in that it is changeable upon changes of conditions of time and
place. This would mean that the rules of fiqh which have at one time been formulated in the light of the
prevailing custom would be liable to change when the same custom is no longer prevalent. The
differential fatwas that the later ulema of different schools have occasionally given in opposition to
those of their predecessors on the same issues are reflective of the change of custom on which the fatwa
was founded in the first place. In addition, since custom is basically unstable it is often difficult to
ascertain its precise terms. These terms may not be self-evident, and the frequent absence of written
records and documents might ass to the difficulty of verification.
[23. Cf. Badran, Usul, p. 233.]
Another factor which merits attention in this context is the development of statutory legislation as an
instrument of government in modern times. The attempt to codify the law into self-contained statutes
has to some extent reduced the need to rely on social custom as the basis of decision-making. But even
so, it would be far from accurate to say that custom has ceased to play an important role both as a
source of law and a basis of judicial decision-making. This is perhaps evident from the general
reference to custom as a supplementary source of law in the civil codes of many Islamic countries of
today. The typical style of reference to custom in such statutes appears to be that custom is authoritative
in the absence of a provision in the statute concerning a particular dispute.
Principles of Islamic Jurisprudence ~
Kamali 256
The fuqaha of the later ages (muta'akhkhirun) are on record as having changed the rulings of the earlier
jurists which were based in custom owing to subsequent changes in the custom itself. The examples
which are given below will show that the jurists have on the whole accepted 'urf not only as a valid
basis of ijtihad but also as the key indicator of the need for legal reform:
1) Under the rules of fiqh, a man who causes harm to another by giving him false information is not
responsible for the damage he has caused. The rule of fiqh that applies to such cases is that the
mubashir, that is, the one who acted directly, is responsible for the losses. However owing to the spread
of dishonesty and corruption, the later fuquha' have validated a departure from this rule in favour of
holding the false reporter responsible for the losses caused.
[24. Abu Zahrah, Usul, p.218.]
2) According to Imam Abu Hanifah, when the qadi personally trusts the reliability of a witness who
testifies before him, there is no need for recourse to cross-examination or tazkiyah. This ruling is based
on the Hadith which provides that 'Muslims are `udul [i.e. upright and trustworthy] in relationship to
one another'.
Abu Hanifah's ruling was obviously deemed appropriate for the time in which it was formulated. But
experience in later times aroused concern over dishonesty and lying by witnesses. It was consequently
considered necessary to take precautions so as to prevent perjury, and the ulema reached the opinion
that tazkiyah should be applied as a standard practice to all witnesses. Abu Hanifah's disciples are
reported to have given a fatwa in favour of making tazkiyah a regular judicial practice. Consequently
tazkiyah was held to be a condition for admitting the testimony of witnesses, and a ruling was
formulated to the effect that no testimony without tazkiyah may constitute the basis of a court
decision.
[25. Bayhaqi, al-Sunan al-Kubra, X, 155-56. Abu Zahrah, Usul, p. 219; Sabuni, Madkhal, pp.144-45]
3) According to the accepted rule of the Hanafi school, which is attributed to Abu Hanifah himself, noone
was allowed to charge any fees for teaching the Qur'an, or the principles of the faith. For teaching
these
subjects was held to be a form of worship ('ibadah)
and no reward for it was to be expected from
anyone
other than God. But subsequent experience showed that some people were reluctant to teach the
Qur'an,
and an incentive by way of remuneration was considered necessary in order to encourage the
teaching
of Islam. Consequently the fuqaha'
gave
a
fatwa in
favour of charging fees for teaching the
Qur'an.
[26. Abu Zahrah, Usul, p. 219.]
4) Among the rules of fiqh which have tended to 'change with the change of custom, there is one
concerning the determination of the age by which a missing person (mafqud) is to be declared dead.
According to the generally accepted view, the missing person must not be declared dead until he
reaches the age at which his contemporaries would normally be expected to die. Consequently the
jurists of the Hanafi-school have variously determined this age at seventy, ninety and one hundred, and
Principles of Islamic Jurisprudence ~
Kamali 257
their respective rulings have taken into consideration the changes of experience and conditions that
prevailed at the time the new rulings were formulated.
[27. Sabuni, Madkhal, p.145.]
5) And lastly, in the area of transactions, the concept of al-ghabn al-fahish, that is, radical discrepancy
between the market price of a commodity and the actual price charged to the customer, is determined
with reference to `urf. To ascertain what margin of discrepancy in a particular transaction amounts to
al-ghabn al-fahish is determined by reference to the practice among tradesmen and people who are
engaged in similar transactions. Since these practices are liable to change, the changes are in turn
reflected in the determination of what might amount to al-ghabn al-fahish.
[27. Sabuni, Madkhal, p.145.]
Principles of Islamic Jurisprudence ~
Kamali 258
Chapter Fifteen: Istishab (Presumption of Continuity)
Literally, Istishab means 'escorting' or `companionship'. Technically, istishab denotes a rational proof
which may be employed in the absence of other indications; specifically, those facts, or rules of law and
reason, whose existence or non-existence had been proven in the past, and which are presumed to
remain so for lack of evidence to establish any change. The technical meaning of istishab relates to its
literal meaning in the sense that the past `accompanies' the present without any interruption or change.
Shawkani, Irshad, p. 237; Amidi, Ihkam, IV, 127; Ibn al-Qayyim, I'lam, I, 294.]
Istishab is validated by the Shafi'i school, the
Hanbalis, the Zahiris and the Shi'ah Imamiyyah, but the Hanafis, the Malikis and the mutakallimun,
including Abu al-Husayn al-Basri do not consider it a proof in its own right. The opponents of istishab
are of the view that establishing the existence of a fact in the past is no proof of as continued existence.
The continued existence of the original state is still in need of proof in the same way as the claim which
seeks to establish that the original condition has changed.
Falsafah (Ziadeh's trans.) p.95.]
[2. Shawkani, Irshad, p. 237; Abu Zahrah, Usul, p. 234; Mahmassani,
For the Shafi`is and the Hanbalis, istishab denotes 'continuation of that which is proven and the
negation of that which had not existed'. Istishab, in other words, presumes the continuation of both the
positive and the negative until the contrary is established by evidence. In its positive sense, istishab
requires, for example, that once a contract of sale (or of marriage for that matter), is concluded, it is
presumed to remain in force until there is a change. Thus the ownership of the purchaser, and the
marital status of the spouses, arc presumed to continue until a transfer of ownership, or dissolution of
marriage, can be established by evidence. Since both of these contracts are permanently valid under the
Shari'ah and do not admit of any time limits it is reasonable to presume their continuity until there is
evidence to the contrary. A mere possibility that the property in question might have been sold, or that
the marriage might have been dissolved, is not enough to rebut the presumption of istishab.
I'lam, I, 294; Badran, Usul, p. 218; Abu Zahrah, Usul, p. 234.]
However, if the law only validates a contract on a temporary
basis, such as lease and hire (ijarah), then istishab cannot presume its continuity on a permanent basis.
The contract will continue to operate within the specified period and terminate when the period expires.
Istishab also presumes the continuation of the negative. For example, A purchases a hunting dog from
B with the proviso that it has been trained to hunt, but then A claims that the dog is untrained. A's claim
will be acceptable under istishab unless there is evidence to the contrary. For istishab maintains the
natural state of things, which in the case of animals is the absence of training.
[4. Badran, Usul, p. 218.]
Presumption of continuity under istishab is different from the continued validity of a rule of law in a
particular case. The false accuser, for example, may never be admitted as a witness, a rule which is laid
Principles of Islamic Jurisprudence ~ Kamali 259
[3. Ibn al-Qayyim,
[1.
own view.]
[37. Mahmassani, Falsafah al-Tashri`, p. 117. This author also quotes Shaykh Mustafa al-Ghalayini in support of his
Differences between Istislah, Analogy, and Istihsan
In his effort to determine the shar`i ruling on a particular issue, the jurist must refer to the Qur'an, the
Sunnah and ijma'. In the absence of any ruling in these sources, he must attempt qiyas by identifying a
common 'illah between a ruling of the text and the issue for which a solution is wanting. However, if
the solution arrived at through qiyas leads to hardship or unfair results, he may depart from it in favour
of an alternative analogy in which the 'illah, although less obvious, is conducive to obtaining a
preferable solution. The alternative analogy is a preferable qiyas, or istihsan. In the event, however, that
no analogy can be applied, the jurist may resort to maslahah mursalah and formulate a ruling which, in
his opinion, serves a useful purpose or prevents a harm that may otherwise ensue.
35.]
It thus appears that maslahah mursalah and qiyas have a feature in common in that both are applicable
to cases on which there is no clear ruling available in the nusus or ijma'. They also resemble one
another in the sense that the benefit that is secured by recourse to them is based on a probability, or
zann, either in the form of a 'illah in the case of qiyas, or of a rational consideration which secures a
benefit in the case of maslahah mursalah. However, qiyas and maslahah differ from one another in
certain respects. The benefit which is secured by qiyas is founded on an indication from the Lawgiver,
and a specific 'illah is identified to justify the analogy to the nass. But the benefit which is sought
through maslahah mursalah has no specific basis in the established law, whether in favour or against.
Maslahah mursalah in other words stands on its own justification, whereas qiyas is the extension of a
ruling which already exists.
[38. Cf. Sabuni, Madkhal, pp.134-
This explanation would also serve to clarify the main difference between maslahah and istihsan. A
ruling which is based on maslahah mursalah is original in the sense that it does not follow, or represent
a departure from, an existing precedent. As for istihsan, it only applies to cases on which there is a
precedent available (usually in the form of qiyas), but istihsan seeks a departure from it in favour of an
alternative ruling. This alternative may take the form of a hidden analogy (qiyas khafi), or of an
exception to a ruling of the existing law, each representing a variation of istihsan.
217; Sabuni, Madkhal, p.135.]
The Polemics over Maslahah
[39. Cf. Badran, Usul, pp. 216-
Principles of Islamic Jurisprudence ~
Kamali 243
The main point in the argument advanced by the opponents of istislah is that the Shari'ah takes full
cognizance of all the masalih; it is all-inclusive and there is no maslahah outside the Shari'ah itself.
This is the view of the Zahiris and some Shafi'is like al-Amidi, and the Maliki jurist Ibn al-Hajib, who
do not recognise maslahah as a proof in its own right. They maintain that the masalih are all
exclusively contained in the nusus. When the Shari'ah is totally silent on a matter, it is a sure sign that
the maslahah in question is no more than a specious maslahah (maslahah wahmiyyah) which is not a
valid ground for legislation.
[40. Khallaf, `Ilm, p.88; Badran, Usul, p. 213.]
The Hanafis and most Shafi'is have on the other hand adopted a relatively more flexible stance,
maintaining that the masalih are either validated in the explicit nusus, or indicated in the rationale
('illah) of a given text, or even in the general objectives of the Lawgiver. Only in the presence of a
textual indication can maslahah constitute a valid ground for legislation. The identification of the
causes (`ilal) and objectives, according to this view, entails the kind of enquiry into the 'illah that would
be required in qiyas. The main difference between this view and that of the Zahiris is that it validates
maslahah on the basis of the rationale and the objective of the Shari'ah even in the absence of a specific
nass. Both these views are founded in the argument that if maslahah is not guided by the values upheld
in the nusus there is a danger of confusing maslahah with arbitrary desires, which might lead to
corruption and mafsadah. Experience has shown that this has frequently occurred at the behest of rulers
and governors who have justified their personal wishes in the name of maslahah. The way to avoid this
is indicated in the Qur'an, in sura al-Qiyamah (75:36) where we read: 'Does man think that he has been
left without guidance?' The maslahah must therefore be guided by the values that the Lawgiver has
upheld. Hence there is no maslahah unless it is corroborated by an indication in the Shari'ah.
Usul, pp. 221,224; Khallaf, `Ilm, p. 88; Badran, Usul, p. 213.]
While commenting on istihsan, Imam Ghazali writes: `We
know that the masalih must always follow the shar'i indications; istihsan is not guided by such
indications and therefore amounts to no more than a whimsical opinion". As for maslahah mursalah, alGhazali
maintains that when it is not approved by the Lawgiver, it is like istihsan.
Principles of Islamic Jurisprudence ~ Kamali 244
[41. Abu Zahrah,
[42. Ghazali, Mustasfa, I,138.]
Al-Ghazali recognises the `accredited' maslahah, that is, when the maslahah is indicated in the nass. He
also approves of maslahah mursalah when it is based in definite necessity, that is, maslahah
daruriyyah. In the absence of a definite necessity, al-Ghazali maintains that maslahah is not valid.
Consequently, al-Ghazali does not approve of the remaining two classes of the masalih, namely the
complementary (hajiyyat), and the embellishments (tahsiniyyat).
[43. Ghazali, Mustasfa, I, 139-140.]
By making the
stipulation that the maslahah, in order to be valid, must be founded in definite necessity, however, alGhazali
is no longer speaking of maslahah
mursalah,
but of necessity (darurah),
which is a different
matter
altogether and governed by a different set of rules.
[44. Cf. Badran, Usul, p. 211.]
It thus appears that this
view only validates the type of maslahah which is referred to as maslahah mu'tabarah.
The opponents of istislah further add that to accept istislah as an independent proof of Shari`ah would
lead to disparity, even chaos, in the ahkam. The halal and haram would be held to be applicable in some place or to some persons and not to others. This would not only violate the permanent and
timeless validity of the Shari'ah but would open the door to corruption.
[45. Khallaf, 'Ilm, p.88.]
As already stated, the Hanafis and the Shafi`is do not accept istislah as an independent proof. Al-Shafi'i
approves of maslahah only within the general scope of qiyas; whereas Abu Hanifah validates it as a
variety of istihsan. This would explain why the Shafi`is and the Hanafis are both silent on the
conditions of maslahah, as they treat the subject under qiyas and istihsan respectively. They have
explained their position as follows: should there be an authority for maslahah in the nusus, that is, if
maslahah is one of the accredited masalih, then it will automatically fall within the scope of qiyas. In
the event where no such authority could be found in the nusus, it is maslahah mulgha and is of no
account. But it would be incorrect to say that there is a category of maslahah beyond the scope of the
nass and analogy to the nass. To maintain that maslahah mursalah is a proof would amount to saying
that the nusus of the Qur'an and the Sunnah are incomplete.
Badran, Usul, p. 213.]
[46. Abu Zahrah, Usul, p. 222; Mustafa Zayd, Maslahah, p. 61;
The opponents of istislah have further argued that the Lawgiver has validated certain masalih and
overruled others. In between there remain, the maslahah mursalah which belongs to neither. It is
therefore equally open to the possibility of being regarded as valid (mu'tabarah) or invalid (mulgha).
Since there is no certainty as to their validity, no legislation may be based on it, for law must be
founded in certainty, not doubt.
In response to this, it is argued that the Lawgiver has proscribed certain masalih not because there is no
benefit in them but mainly because of their conflict with other and superior masalih, or because they
lead to greater evil. None of these considerations would apply to maslahah mursalah, for the benefit in
it outweighs its possible harm. It should be borne in mind that the masalih which the Lawgiver has
expressly overruled (i.e. masalih mulgha) are few compared to those which are upheld. When we have
a case of masalih mursalah on which no clear authority may be found in the sources, and they appear to
be beneficial, they are more likely to belong to the part which is more extensive and preponderant
(kathir al-ghalib), not to that which is limited and rare (qalil al-nadir).
[47. Badran, Usul, p. 214.]
The Zahiris do not admit speculative evidence of any kind as a proof of Shari`ah. They have invalidated
even qiyas, let alone maslahah, on the grounds that qiyas partakes in speculation. The rules of Shari'ah
must be founded in certainty, and this is only true of the clear injunctions of the Qur'an, Sunnah and
ijma'. Anything other than these is mere speculation, which should be renounced.
As for the reports that the Companions issued fatwas on the basis of their own ra'y which might have
partaken in maslahah, Ibn Hazm is categorical in saying that 'these reports do not bind anyone'.
Hazm, Ihkam, VI, 40.]
Thus it would follow that the Zahiris do not accept maslahah mursalah, which they
consider to be founded in personal opinion (ra'y).
[50. Cf. Mustafa Zayd, Maslahah, p. 62.]
[48. Ibn Hazm, Ihkam, V, 55-56.]
Principles of Islamic Jurisprudence ~ Kamali 245
[49. Ibn The Malikis and the Hanbalis have, on the other hand, held that maslahah mursalah is authoritative and
that all that is needed to validate action upon it is to fulfill the conditions which ensure its propriety.
When these conditions are met, maslahah becomes an integral part of the objectives of the Lawgiver
even in the absence of a particular nass. Ahmad b. Hanbal and his disciples are known to have based
many of their fatwas on maslahah, which they have upheld as a proof of Shari'ah and an instrument of
protecting the faith, securing justice, and preventing mafsadah. They have thus validated the death
penalty for spies whose activity violates the maslahah of the Muslim community. The Hanbalis have
also validated, on grounds of maslahah, the death penalty for propagators of heresy when protecting the
maslahah of the community requires this. But in all this, the Hanbalis, like the Malikis, insist that the
necessary conditions of maslahah must be fulfilled. Maslahah must pursue the valid objectives of the
Shari'ah and the dictates of sound intellect, acting upon which fulfils a useful purpose, or serves to
prevent harm to the people.
[51. Cf. Mustafa Zayd, Maslahah, p. 60.]
Some of the more far-reaching instances of
maslahah in the Maliki doctrine may be summarised as follows:
1. Imam Malik validated the pledging of bay`ah (oath of allegiance) to the mafdul, that is the
lesser of the two qualified candidates for the office of the Imam, so as to prevent disorder and
chaos afflicting the life of the community.
[52. Shatibi, I'tisam, II, 303.]
2.
3. When the Public Treasury (bayt al-mal) runs out of funds, the Imam may levy additional taxes
on the wealthy so as to meet the urgent needs of the government without which injustice and
sedition (fitnah) may become rampant.
[53. Shatibi, I'tisam, II, 295.]
4.
5. In the event where all the means of earning a lawful living are made inaccessible to a Muslim,
6.
7.
he is in a situation where he cannot escape to another place, and the only way for him to earn a
living is to engage in unlawful occupations; he may do so but only to the extent that is
necessary.
Conclusion
[54. Shatibi, I'tisam, II, 300.]
Despite their different approaches to maslahah, the leading ulema of the four Sunni schools are in
agreement, in principle, that all genuine masalih which do not conflict with the objectives (maqasid) of
the Lawgiver must be upheld. This is the conclusion that both Khallaf and Abu Zahrah have drawn
from their investigations.
[55. Abu Zahrah, Usul, p. 224; Khallaf, `Ilm, p.85.]
The Shafi'i and Hanafi approach to maslahah
is essentially the same as that of the Maliki and Hanbali schools, with the only difference being that the
Principles of Islamic Jurisprudence ~
Kamali 246 former have attempted to establish a common ground between maslahah and the qiyas witch has an
identifiable `illah. Some Maliki jurists, including Shihab al-Din al-Qarafi have observed that all the
jurists are essentially in agreement over the concept and validity of maslahah mursalah. They only
differ on points of procedure: while some would adopt it directly, others would do so by bringing the
maslahah within the purview of qiyas.
[56. Qarafi, Furuq, II, 188; Abu Zahrah, Usul, p. 225.]
But Imam Malik's concept of
maslahah is the most far-reaching of the four Sunni schools. Since maslahah must always be
harmonious with the objectives of the Lawgiver, it is a norm by itself. Maslahah mursalah as such
specifies the general (`Amm) of the Qur'an, just as the `Amm of the Qur'an may be specified by qiyas. In
the event of conflict between a genuine maslahah and a solitary Hadith, the former takes priority over
the latter.
[57. Abu Zahrah, Usul, p. 225.]
The changing conditions of life never cease to generate new interests. If legislation were to be confined
to the values which the Lawgiver has expressly decreed, the Shari'ah would inevitably fall short of
meeting the masalih of the community. To close the door of maslahah would be tantamount to
enforcing stagnation and unnecessary restriction on the capacity of the Shari'ah to accommodate social
change. 'Abd al-Wahhab Khallaf is right in his assessment that any claim to the effect that the nusus of
the Shari'ah are all-inclusive and cater for all eventualities is simply not true. The same author goes on
to say: 'There is no doubt that some of the masalih have neither been upheld nor indicated by the
Shari'ah in specific terms.'
[58. Khallaf, `Ilm, p. 88.]
As for the concern that the opponents of maslahah mursalah have expressed that validating this
doctrine would enable arbitrary and self-seeking interests to find their way under the banner of
maslahah, they only need to be reminded that a careful observance of the conditions that are attached to
maslahah will ensure that only the genuine interests of the people which are in harmony with the
objectives of the Shari'ah would qualify. This concern is admittedly valid, but one which cannot be
confined to maslahah alone. Arbitrariness and the pursuit of self-seeking interests have never been
totally eliminated in any society, under any legal system. It is a permanent threat which must be
carefully checked and minimized to the extent that this is possible. But this very purpose will be
defeated if legislation on grounds of istislah were to be denied validity. To combat the evil of an
arbitrary indulgence which waves the banner of maslahah would surely have greater prospects of
success if the mujtahid and the Imam were to be able to enact the necessary legislation on grounds of
preventing harm to society. Consequently the argument that the opponents of maslahah have advanced
would appear to be specious and self-defeating.
Principles of Islamic Jurisprudence ~
Kamali 247
Chapter Fourteen: 'Urf (Custom)
As a noun derived from its Arabic root 'arafa (to know), 'urf literally means 'that which is known'. In its
primary sense, it is the known as opposed to the unknown, the familiar and customary as opposed to the
unfamiliar and strange. `Urf and 'adah are largely synonymous, and the majority of ulema have used
them as such. Some observers have, however, distinguished the two, holding that `adah means
repetition or recurrent practice, and can be used with regard to both individuals and groups. We refer,
for example, to the habits of individuals as their personal `adah. But `urf is not used in this capacity: we
do not refer to the personal habits of individuals as their `urf. It is the collective practice of a large
number of people that is normally denoted by `urf. The habits of a few or even a substantial minority
within a group do not constitute 'urf.
[1. Badran, Usul, p. 224; Ziadeh, ' 'Urf and Law ', p. 60; Isma'il, Adillah, p. 389.]
'Urf is defined as 'recurring practices which are acceptable to people of sound nature.' This definition is
clear on the point that custom, in order to constitute a valid basis for legal decisions, must be sound and
reasonable. Hence recurring practices among some people in which there is no benefit or which partake
in prejudice and corruption are excluded from the definition of 'urf.
Isma'il, Adillah, p. 388; Badran, Usul, p. 224.]
[2. Mahmassani, Falsafah (Ziadeh's trans.), p. 132;
`Urf and its derivative, ma'ruf, occur in the Qur'an, and it is the latter of
the two which occurs more frequently. Ma'ruf, which literally means 'known' is, in its Qur'anic usage, is
equated with good, while its opposite, the munkar, or 'strange', is equated with evil. It is mainly in this
sense that 'urf and ma'ruf seem to have been used in the Qur'an. The commentators have generally
interpreted ma'ruf in the Qur'an as denoting faith in God and His Messenger, and adherence to God's
injunctions. Thus the standard commentary on the Qur'anic phrase ta'muruna bi al-ma'ruf wa tanhawna
'an al-munkar (Al-Imran, 3:110) given by the exegetes is that 'you enjoin belief in God and in His
Messenger and enforce His laws, and you forbid disbelief and indulgence in the haram.'
1323-29), IV, 30; Ziadeh, ' 'Urf and Law ', pp. 60-61; Isma'il, Adillah, p. 401.]
The same interpretation is given to the term ' 'urf ' in
the text which occurs in sura al-A'raf (7:199): `Keep to forgiveness, enjoin `urf [wa'mur bi'l-`urf] and
turn away from the ignorant.' According to the exegetes, `urf in this context means fear of God and the
observance of His commands and prohibitions. But occasionally, ma'ruf in the Qur'an occurs in the
sense of good conduct, kindness and justice, especially when the term is applied to a particular
situation. It is only when `urf or ma`ruf is ordered generally without reference to a particular matter,
situation or problem that it carries the meaning of adhering to God's injunctions. The reason for the
position taken by the exegetes becomes apparent if one bears in mind Islam's perspective on good and
evil (husn wa-qubh) which are, in principle, determined by divine revelation. Hence when God ordered
the promotion of ma'ruf, He could not have meant the good which reason or custom decrees to be such,
but what He enjoins.
[4. Cf. Ziadeh,' 'Urf and Law', p. 62.]
Principles of Islamic Jurisprudence ~ Kamali 248
[3. Tabari, Tafsir, (Bulaq
This would also explain why `urf in the sense of custom is not given prominence in the legal theory of the usul al-fiqh, although it carries some authority, as we
shall presently explain.
Custom which does not contravene the principles of Shari'ah is valid and authoritative; it must be
observed and upheld by a court of law. According to a legal maxim which is recorded by the Shafi'i
jurist al-Suyuti, in his well-known work, al-Ashbah wa al-Nazai'r, 'What is proven by 'urf is like that
which is proven by a shar'i proof.' This legal maxim is also recorded by the Hanafi jurist al-Sarakhsi,
and was subsequently adopted in the Ottoman Majallah which provides that custom, whether general or
specific, is enforceable and constitutes a basis of judicial decisions.
Usul, p. 216; Mahmassani, Falsafah, p. 132.]
[5. The Mejelle (Tyser's trans.) (Art. 36); Abu Zahrah,
The ulema have generally accepted 'urf as a valid criterion for purposes of
interpreting the Qur'an. To give an example, the Qur'anic commentators have referred to `urf in
determining the precise amount of maintenance that a husband must provide for his wife. This is the
subject of sura al-Talaq (65:7) which provides: `Let those who possess means pay according to their
means.' In this ayah, the Qur'an does not specify the exact amount of maintenance, which is to be
determined by reference to custom. Similarly, in regard to the maintenance of children, the Qur'an only
specifies that this is the duty of the father, but leaves the quantum of maintenance to be determined by
reference to custom (bi'l-ma`ruf) (al-Baqarah, 2:233). The Shari'ah has, in principle, accredited
approved custom as a valid ground in the determination of its rules relating to halal and haram. This is
in turn reflected in the practice of the fuqaha', who have adopted 'urf, whether general or specific, as a
valid criterion in the determination of the ahkam of Shari'ah.
[6. Sabuni, Madkhal, p. 138; Isma'il, Adillah, p. 403.]
The
rules of fiqh which are based in juristic opinion (ra'y) or in speculative analogy and ijtihad have often
been formulated in the light of prevailing custom; it is therefore, permissible to depart from them if the
custom on which they were founded changes in the course of time. The ijtihad rules of fiqh are, for the
most part, changeable with changes of time and circumstance. To deny social change due recognition in
the determination of the rules of fiqh would amount to exposing the people to hardship, which the
Shari'ah forbids. Sometimes even the same mujtahid has changed his previous ijtihad with a view to
bringing it into harmony with the prevailing custom. It is well -known, for example, that Imam alShafi`i
laid the foundations of his school in Iraq, but that when he went to Egypt, he changed some of
his
earlier views owing to the different customs he encountered in Egyptian society.
Aghnides, Muhammedan Theories, p. 82.]
Customs which were prevalent during the lifetime of the Prophet and were not expressly overruled by
him are held to have received his tacit approval and become part of what is known as Sunnah
taqririyyah. Pre-Islamic Arabian custom which was thus approved by the Prophet was later upheld by
the Companions, who often referred to it through statements such as 'we used to do such-and-such
while the Prophet was alive'.
[8. Ziadeh,' 'Urf and Law ', p. 62; Abdul Rahim, Jurisprudence, p. 137; Mahmassani, Falsafah, p. 132.]
Islam
has thus retained many pre-Islamic Arabian customs while it has at the same time overruled the
oppressive and corrupt practices of that society. Islam also attempted to amend and regulate some of the
Arab customary laws with a view to bringing them into line with the principles of the Shari'ah. The
Principles of Islamic Jurisprudence ~ Kamali 249
[7. Abu Zahrah, Usul, p. 217; reverse of this is also true in the sense that pre-Islamic customs of Arabia influenced the Shari'ah in its
formative stages of development. Even in the area of the verbal and actual Sunnah, there are instances
where Arabian custom has been upheld and incorporated within the Sunnah of the Prophet An example
of this is the rulings of the Sunnah concerning the liability of the kinsmen of an offender (i.e. the
`aqilah) for the payment of blood money, or diyah. Similarly, the Sunnah which regulates certain
transactions such as mortgage (rahn), advance sale (salam) and the requirement of equality (kafa'ah) in
marriage have their roots in the pre-Islamic custom of the Arabs. There are also vestiges of pre-Islamic
custom in the area of inheritance, such as the significance that the rules of inheritance attach to the male
line of relationship, known as the `asabah. As for the post-Islamic custom of Arabian society, Imam
Malik has gone so far as to equate the amal ahl al-Madinah, that is the customary practice of the people
of Madinah, with ijma`. This type of 'amal ( lit.' practice') constitutes a source of law in the absence of
an explicit ruling in the Qur'an and Sunnah. Custom has also found its way into the Shari'ah through
juristic preference (istihsan) and considerations of public interest (maslahah). And of course, ijma`
itself has to a large extent served as a vehicle of assimilating customary rules which were in harmony
with the Shari'ah, or were based in necessity (darurah), into the general body of the Shari'ah.
Falsafah, p. 132; Sabuni, Madkhal, p. 143; Badran, Usul, p. 242.]
Conditions of Valid `Urf
In addition to being reasonable and acceptable to people of sound nature, `urf, in order to be
authoritative, must fulfill the following requirements.
1) `Urf must represent a common and recurrent phenomenon. The practice of a few individuals or of a
limited number of people within a large community will not be authoritative, nor would a usage of this
nature be upheld as the basis of a judicial decision in Shari'ah courts. The substance of this condition is
incorporated in the Majallah al-Ahkam al-`Adliyyah where it is provided that `effect is only given to
custom which is of regular occurrence' (Art. 14). To give an example, when a person buys a house or a
car, the question as to what is to be included in either of these is largely determined by custom, if this is
not otherwise specified in the terms of the agreement. More specifically, one would need to refer to the
common practice among estate agents or car dealers respectively. But if no custom could be established
as such, or there are disparate practices of various sorts, no custom could be said to exist and no judicial
order may be based on it. Custom, in order to be upheld, must not only be consistent but also dominant
in the sense that it is observed in all or most of the cases to which it can apply. If it is observed only in
some cases but not in others, it is not authoritative. Similarly, if there are two distinct customary
practices on one and the same matter, the one which is dominant is to be upheld. If, for example, a sale
is concluded in a city where two or three currencies are commonly accepted and the contract in question
Principles of Islamic Jurisprudence ~ Kamali 250
[9. Mahmassani, does not specify any, the one which is the more dominant and common will be deemed to apply.
Mahmassani, Falsafah, pp. 133-134; Sabuni, Madkhal, pp. 139-140; Isma'il, Adillah, pp. 398-399.]
2) Custom must also be in existence at the time a transaction is concluded. In contracts and commercial
transactions, effect is given only to customs which are prevalent at the time the transaction is
concluded, and not to customs of subsequent origin. This condition is particularly relevant to the
interpretation of documents, which are to be understood in the light of the custom that prevailed at the
time they were written. Consequently, a rule of custom which is prevalent at the time the interpretation
is attempted will not be relevant if it only became prevalent after the document was concluded. For it is
generally assumed that documents which are not self-evident and require clarification can only convey
concepts that were common at the time they were written.
[11. Mahmassani, Falsafah, p.134; Sabuni, Madkhal, p. 143.]
3) Custom must not contravene the clear stipulation of an agreement. The general rule is that
contractual agreements prevail over custom, and recourse to custom is only valid in the absence of an
agreement. Since contractual agreements are stronger than custom, should there arise a conflict between
them it will normally be determined in favour, of the former. If for example the prevailing custom in
regard to the provision of dower (mahr) in marriage requires the payment of one-half at the time of the
conclusion of the contract and the remainder at a later date, but the contract clearly stipulates the
prompt payment of the whole of the dower, the rule of custom would be of no account in the face of this
stipulation. For custom is only to be invoked when no clear text can be found to determine the terms of
a particular dispute; and whenever a clear text is in existence, recourse to custom will be out of the
question. To give another example: the costs of formal registration in the sale of real property are
customarily payable by the purchaser. But if there is a stipulation in the contract that specifically
requires the vendor to bear those costs, then the custom will be of no account and the purchaser will not
be required to pay the costs of registration.
[12. Isma'il, Adillah, p. 400.]
4) Lastly, custom must not violate the nass, that is, the definitive principle of the law. The opposition of
custom to nass may either be absolute or partial. If it is the former, there is no doubt that custom must
be set aside. Examples of such conflicts are encountered in the bedouin practice of disinheriting the
female heirs, or the practice of usury (riba) and wine-drinking. The fact that these are widely practiced
is of no consequence, as in each case there is a prohibitory nass, or a command which always takes
priority, and no concession or allowance is made for the practice in question. But if the conflict between
custom and text is not absolute in that the custom opposes only certain aspects of the text, then custom
is allowed to act as a limiting factor on the text. The contract of istisna`, that is, the order for the
manufacture of goods at an agreed price, may serve as an example here. According to a Hadith, 'the
Prophet prohibited the sale of non-existing objects but he permitted salam (i.e. advance sale in which
the price is determined but delivery postponed)'.
[13. Bukhari, Sahih, III, 44 (Kitab al-Salam, Hadith nos. 1-3); Badran, Usul, p. 121.]
Principles of Islamic Jurisprudence ~ Kamali 251
[10.This Hadith is general in that it applies to all varieties of sale in which the object of sale is not present at
the time of contract. Salam was exceptionally permitted as it was deemed to be of benefit to the people.
The general prohibition in this Hadith would equally apply to istisna' as in this case too the object of
sale is non-existent at the time of contract. But since istisna' was commonly practiced among people of
all ages, the fuqaha have validated it on grounds of general custom. The conflict between istisna' and
the ruling of the Hadith is not absolute, because the Hadith has explicitly validated salam. If realisation
of benefit to the people was the main ground of the concession that has been granted in respect of
salam, then istisna` presents a similar case. Consequently the custom concerning istisna` is allowed to
operate as a limiting factor on the textual ruling of the Hadith in that the Hadith is qualified by the
custom concerning istisna'.
Another example where a general text is qualified by custom is when a person is appointed to act as
agent (wakil) for another in respect of concluding a particular contract such as sale or marriage. The
agent's power to conclude the contract, although not limited by the terms of his appointment, is
nevertheless qualified by the prevalent custom. In the matter of sale, for example, the expected price
which represents the fair market price would be upheld, and the currency of the locality would be
accepted in exchange.
According to a Hadith, the Prophet is said to have forbidden conditional sale, that is, sale with
conditions that may not be in agreement with the nature of this contract. An example of this would be
when A sells his car to B for 10,000 dollars on condition that B sells his house to A for 50,000 dollars.
The Hadith quoted to this effect provides that the Prophet 'forbade sale coupled with a condition'.
However, the majority of Hanafi and Maliki jurists have validated conditions which are accepted by the
people at large and which represent standard custom. Here again the general prohibition is retained, but
only conditions that are adopted by `urf are upheld; the general terms of the Hadith are, in other words,
qualified by custom.
[14. Shawkani, Irshad, p. 161; Abu Zahrah, Usul, p. 217; Badran, Usul, p. 230.]
It would be useful in this connection to distinguish 'urf from ijma' , for they have much in common with
one another, which is why they are sometimes confused. But despite their similarities, there are
substantial differences between `urf and ijma` which may be summarised as follows:
1) `Urf materialises by the agreement of all, or the dominant majority of, the people and its existence is
not affected by the exception or disagreement of a few individuals. Ijma` on the other hand requires, for
its conclusion, the consensus of all the mujtahidun of the period or the generation in which it
materialises. Disagreement and dissension has no place in ijma`, and any level of disagreement among
the mujtahidun invalidates ijma`.
Principles of Islamic Jurisprudence ~
Kamali 252
2) Custom does not depend on the agreement of the mujtahidun, but must be accepted by the majority
of the people, including the mujtahidun. The laymen have, on the other hand, no say in ijma' on
juridical matters, which require the participation only of the learned members of the community.
3) The rules of `urf are changeable, and a custom may in course of time give way to another custom or
may simply disappear with a change of circumstances. But this is not the case with ijma`. Once an ijma'
is concluded, it precludes fresh ijtihad on the same issue and is not open to abrogation or amendments.
`Urf on the other hand leaves open the possibility of fresh ijtihad, and a ruling of ijtihad which is
founded in 'urf may be changed even if the `urf in which it originates does not.
4) Lastly, `urf requires an element of continuity in that it can only materialise if it exists over a period
of time. Ijma` can, on the other hand, come into existence whenever the mujtahidun reach a unanimous
agreement which, in principle, requires no continuity for its conclusion.
Types of Custom
[15. Badran, Usul, p. 225; Isma'il, Adillah, p. 291.]
Custom is initially divided into two types, namely verbal (qawli) and actual (fi'li). Verbal `urf consists
of the general agreement of the people on the usage and meaning of words deployed for purposes other
than their literal meaning. As a result of such agreement, the customary meaning tends to become
dominant and the original or literal meaning is reduced to the status of an exception. There are many
examples in the Qur'an and Sunnah of words which have been used for a meaning other than their literal
one, which were as a result commonly accepted by popular usage. Words such as salah, zakah and hajj
have been used in the Qur'an for purposes other than their literal meanings, and this usage eventually
became dominant to the extent that the literal meaning of these words was consigned to obscurity. The
verbal custom concerning the use of these words thus originated in the Qur'an and was subsequently
accepted by popular custom. We also find instances of divergences between the literal and the
customary meanings of words in the Qur'an where the literal meaning is applied regardless of the
customary meaning. The word walad, for example, is used in the Qur'an in its literal sense, that is
`offspring' whether a son or daughter (note sura al-Nisa', 4:11), but in its popular usage walad is used
for sons only. Another example is lahm, that is, meat, which in its Qur'anic usage includes fish, but in
its customary usage is applied only to meat other than fish. Whenever words of this nature, that is,
words which have acquired a different meaning in customary usage, occur in contracts, oaths and
commercial transactions, their customary meaning will prevail. For example, when a person takes an
oath that he will never 'set foot' at so-and-so's house, what is meant by this expression is the customary
meaning, namely, actually entering the house. In this sense, the person will have broken the oath if he
enters the house while never 'setting foot', such as by entering the house while mounted. But if he only
Principles of Islamic Jurisprudence ~
Kamali 253
technically sets his foot in the house without entering it, he will not be liable to expiation (kaffarah) for
breaking his oath.
[16. Isma'il, Adillah, pp. 392-393; Sabuni, Madkhal, p. 137; Badran, Usul, p. 226.]
For this would not amount to
what is customarily meant by 'setting foot in the house.
Actual `urf consists of commonly recurrent practices which are accepted by the people. An example of
actual 'urf is the give-and-take sale, or bay' al-ta'ati, which is normally concluded without utterances of
offer and acceptance. Similarly, customary rules regarding the payment of dower in marriage may
require a certain amount to be paid at the time of contract and the rest at a later date. The validity of this
type of custom is endorsed by the legal maxim which reads: 'What is accepted by 'urf is tantamount to a
stipulated agreement (al-ma'ruf `urfan ka'l-mashrut shartan).' Consequently, actual `urf is to be upheld
and applied in the absence of an agreement to the contrary.
`Urf, whether actual or verbal, is once again divided into the two types of general and special: al-urf al`amm
and
al-'urf
al-khass respectively.
A general `urf
is one which is prevalent everywhere and on
which
the people agree regardless of the passage of time. A typical example of this is bay
al-ta'ati to
which
reference has already been made. Similarly, the customary practice of charging a fixed price for
entry
to public baths is another example of general 'urf,
which is anomalous to the strict requirements of
sale
(as it entails consuming an unknown quantity of water) but the people have accepted it and it is
therefore
valid. It will be further noted that in their formulation of the doctrine of istihsan,
the Hanafi
jurists
have validated departure from a ruling of qiyas
in favour of general 'urf.
This has already been
elaborated
in the separate chapter on istihsan.
Theories, p. 81.]
[17. Abu Zahrah, Usul, p. 217; Sabuni, Madkhal, p. 138; Aghnides, Muhammedan
"Special custom" is 'urf which is prevalent in a particular locality, profession or trade. By its very
nature, it is not a requirement of this type of 'urf that it be accepted by people everywhere. According to
the preferred view of the Hanafi school, special 'urf does not qualify the general provisions of the nass,
although some Hanafi jurists have held otherwise. Consequently, this type of 'urf is entirely ignored
when it is found to be in conflict with the nass. The general rule to be stated here is that the ahkam of
Shari'ah pertaining to the authority of 'urf only contemplate the provisions of general 'urf. A ruling of
qiyas, especially qiyas whose effective cause is not expressly stated in the nass, that is, qiyas ghayr
mansus al-'illah, may be abandoned in favour of a general `urf, but will prevail if it conflicts with
special 'urf. A number of prominent ulema have, however, given the fatwa that special 'urf should
command the same authority as general 'urf in this respect. The reason why general 'urf is given priority
over qiyas is that the former is indicative of the people's need, whose disregard may amount to an
imposition of hardship on them. Some Hanafi jurists like Ibn al-Humam have taught that 'urf in this
situation commands an authority equivalent to that of ijma', and that as such it must be given priority
over qiyas. It is perhaps relevant here to add that Abu Hanifah's disciple, al-Shaybani, validated the sale
of honeybees and silkworms as this was commonly practiced during his time despite the analogical
ruling that Abu Hanifah had given against it on the grounds that they did not amount to a valuable
Principles of Islamic Jurisprudence ~
Kamali 254
commodity (mal). Furthermore, the ulema have recorded the view that since 'urf is given priority over
qiyas despite the fact that qiyas originates in the nusus of the Qur'an and Sunnah, it will a fortiori be
preferred over considerations of public interest (maslahah) which are not rooted in the nusus. Having
said this, however, it would seem that cases of conflict between general 'urf and maslahah would be
rather rare. For 'urf by definition must be sound and reasonable, considerations which tend to bring 'urf
close to maslahah. For after all, 'urf and maslahah each in their respective capacities serve as a means
for the realisation of public welfare and the prevention of hardship to people.
And lastly, from the viewpoint of its conformity or otherwise with the Shari'ah, custom is once again
divided into the two types of approved or valid custom (al-`urf al-sahih) and disapproved custom (al'urf
al-fasid).
As is indicated in the terms of these expressions, the approved 'urf
is
one which is
observed
by the people at large without there being any indication in the Shari'ah
that it contravenes
any
of its principles. The disapproved custom is also practiced by the people but there is evidence to
show
that it a repugnant to the principles of Shari'ah.
We have already referred to the bedouin practice
of
disinheriting female relatives, and the prevalence of riba,
which although commonly practiced are
both
in clear violation of the Shari'ah,
and as such represent examples of al-'urf
al-fasid.
231; Isma'il, Adillah, p. 393.]
Proof (Hujjiyyah) of `Urf
Although the ulema have attempted to locate textual authority for 'urf in the Qur'an, their attempt has
not been free of difficulties. To begin with, reference is usually made to the Qur'anic text in sura al-Hajj
(22:78) which provides: `God has not laid upon you any hardship in religion.' This is obviously not a
direct authority on the subject, but it is argued that ignoring the prevailing `urf which does not conflict
with the nusus of Shari'ah is likely to lead to adhering hardship on the people, which must be avoided.
The next ayah which is quoted in support of `urf occurs in sura al-A'raf (7:199), but although this has a
direct reference to `urf, difficulties have been encountered in identifying it as its main authority. This
ayah, to which a reference has already been made, enjoins the Prophet to 'keep to forgiveness, and
enjoin `urf, and turn away from the ignorant'. According to the Maliki jurist Shihab al-Din al-Qarafi,
this ayah is explicit and provides a clear authority for `urf. According to this view `urf is clearly upheld
in the Qur'an as a proof of Shari'ah and an integral part of it.
226.]
Principles of Islamic Jurisprudence ~ Kamali 255
[18. Badran, Usul, p.
[19. Qarafi, Furuq, II, 85; Sabuni, Madkhal, p. 143; Badran, Usul, p.
The generality of ulema, however, maintain the view that the reference to `urf in this ayah is to the
literal meaning of the word, that is, to the familiar and good, and not to custom as such. But then it is
added: bearing in mind that approved custom is normally upheld by people of sound nature and
intellect, the Qur'anic concept of 'urf comes close to the technical meaning of this word. The literal or
the Qur'anic meaning of 'urf, in other words, corroborates its technical meaning and the two usages of the word are in essential harmony with one another. The commentators, however, further add that since
the word 'urf in this ayah can mean many things, including `profession of the faith', `that which the
people consider good', and of course `that which is familiar and known', as well as `urf in the sense of
custom, it cannot be quoted as textual authority for custom as such.
Ziadeh,' 'Urf and Law', pp.61-62.]
[20. Tabari, Tafsir, IV, 30; Isma'il, Adillah, pp. 401-402;
Among the indirect evidence in support of 'urf the ulema have also quoted the
following saying of the prominent Companion, `Abd Allah b. Mas'ud, that 'what the Muslims deem to
be good is good in the sight of God'.
Although many scholars have considered this to be a Hadith from the Prophet, it is more likely, as alShatibi
points out, to be a saying of `Abd Allah b. Mas`ud.
[21. Shatibi, I'tisam, II, 319. Mahmassani (Falsafah, p. 77) has also
reached the conclusion that this is the saying of `Abd Allah b. Mas'ud. But Amidi (Ihkam, I. 214) has quoted it as a Hadith.]
The critics have,
however, suggested that this saying/Hadith refers to the approval of `al-muslimun', that is, all the
Muslims, whereas `urf varies from place to place, and the approval of all Muslims in its favour cannot
be taken for granted. In response to this, it has been further suggested that `muslimun' in this context
only denotes those among them who possess sound intellect and judgement, and not necessarily every
individual member of the Muslim community.
[22. Cf. Isma'il, Adillah, p.402.]
The upshot of this whole debate over the authoritativeness of 'urf seems to be that notwithstanding the
significant role that it has played in the development of the Shari'ah, it is not an independent proof in its
own right. The reluctance of the ulema in recognising 'urf as a proof has been partly due to the
circumstantial character of the principle, in that it is changeable upon changes of conditions of time and
place. This would mean that the rules of fiqh which have at one time been formulated in the light of the
prevailing custom would be liable to change when the same custom is no longer prevalent. The
differential fatwas that the later ulema of different schools have occasionally given in opposition to
those of their predecessors on the same issues are reflective of the change of custom on which the fatwa
was founded in the first place. In addition, since custom is basically unstable it is often difficult to
ascertain its precise terms. These terms may not be self-evident, and the frequent absence of written
records and documents might ass to the difficulty of verification.
[23. Cf. Badran, Usul, p. 233.]
Another factor which merits attention in this context is the development of statutory legislation as an
instrument of government in modern times. The attempt to codify the law into self-contained statutes
has to some extent reduced the need to rely on social custom as the basis of decision-making. But even
so, it would be far from accurate to say that custom has ceased to play an important role both as a
source of law and a basis of judicial decision-making. This is perhaps evident from the general
reference to custom as a supplementary source of law in the civil codes of many Islamic countries of
today. The typical style of reference to custom in such statutes appears to be that custom is authoritative
in the absence of a provision in the statute concerning a particular dispute.
Principles of Islamic Jurisprudence ~
Kamali 256
The fuqaha of the later ages (muta'akhkhirun) are on record as having changed the rulings of the earlier
jurists which were based in custom owing to subsequent changes in the custom itself. The examples
which are given below will show that the jurists have on the whole accepted 'urf not only as a valid
basis of ijtihad but also as the key indicator of the need for legal reform:
1) Under the rules of fiqh, a man who causes harm to another by giving him false information is not
responsible for the damage he has caused. The rule of fiqh that applies to such cases is that the
mubashir, that is, the one who acted directly, is responsible for the losses. However owing to the spread
of dishonesty and corruption, the later fuquha' have validated a departure from this rule in favour of
holding the false reporter responsible for the losses caused.
[24. Abu Zahrah, Usul, p.218.]
2) According to Imam Abu Hanifah, when the qadi personally trusts the reliability of a witness who
testifies before him, there is no need for recourse to cross-examination or tazkiyah. This ruling is based
on the Hadith which provides that 'Muslims are `udul [i.e. upright and trustworthy] in relationship to
one another'.
Abu Hanifah's ruling was obviously deemed appropriate for the time in which it was formulated. But
experience in later times aroused concern over dishonesty and lying by witnesses. It was consequently
considered necessary to take precautions so as to prevent perjury, and the ulema reached the opinion
that tazkiyah should be applied as a standard practice to all witnesses. Abu Hanifah's disciples are
reported to have given a fatwa in favour of making tazkiyah a regular judicial practice. Consequently
tazkiyah was held to be a condition for admitting the testimony of witnesses, and a ruling was
formulated to the effect that no testimony without tazkiyah may constitute the basis of a court
decision.
[25. Bayhaqi, al-Sunan al-Kubra, X, 155-56. Abu Zahrah, Usul, p. 219; Sabuni, Madkhal, pp.144-45]
3) According to the accepted rule of the Hanafi school, which is attributed to Abu Hanifah himself, noone
was allowed to charge any fees for teaching the Qur'an, or the principles of the faith. For teaching
these
subjects was held to be a form of worship ('ibadah)
and no reward for it was to be expected from
anyone
other than God. But subsequent experience showed that some people were reluctant to teach the
Qur'an,
and an incentive by way of remuneration was considered necessary in order to encourage the
teaching
of Islam. Consequently the fuqaha'
gave
a
fatwa in
favour of charging fees for teaching the
Qur'an.
[26. Abu Zahrah, Usul, p. 219.]
4) Among the rules of fiqh which have tended to 'change with the change of custom, there is one
concerning the determination of the age by which a missing person (mafqud) is to be declared dead.
According to the generally accepted view, the missing person must not be declared dead until he
reaches the age at which his contemporaries would normally be expected to die. Consequently the
jurists of the Hanafi-school have variously determined this age at seventy, ninety and one hundred, and
Principles of Islamic Jurisprudence ~
Kamali 257
their respective rulings have taken into consideration the changes of experience and conditions that
prevailed at the time the new rulings were formulated.
[27. Sabuni, Madkhal, p.145.]
5) And lastly, in the area of transactions, the concept of al-ghabn al-fahish, that is, radical discrepancy
between the market price of a commodity and the actual price charged to the customer, is determined
with reference to `urf. To ascertain what margin of discrepancy in a particular transaction amounts to
al-ghabn al-fahish is determined by reference to the practice among tradesmen and people who are
engaged in similar transactions. Since these practices are liable to change, the changes are in turn
reflected in the determination of what might amount to al-ghabn al-fahish.
[27. Sabuni, Madkhal, p.145.]
Principles of Islamic Jurisprudence ~
Kamali 258
Chapter Fifteen: Istishab (Presumption of Continuity)
Literally, Istishab means 'escorting' or `companionship'. Technically, istishab denotes a rational proof
which may be employed in the absence of other indications; specifically, those facts, or rules of law and
reason, whose existence or non-existence had been proven in the past, and which are presumed to
remain so for lack of evidence to establish any change. The technical meaning of istishab relates to its
literal meaning in the sense that the past `accompanies' the present without any interruption or change.
Shawkani, Irshad, p. 237; Amidi, Ihkam, IV, 127; Ibn al-Qayyim, I'lam, I, 294.]
Istishab is validated by the Shafi'i school, the
Hanbalis, the Zahiris and the Shi'ah Imamiyyah, but the Hanafis, the Malikis and the mutakallimun,
including Abu al-Husayn al-Basri do not consider it a proof in its own right. The opponents of istishab
are of the view that establishing the existence of a fact in the past is no proof of as continued existence.
The continued existence of the original state is still in need of proof in the same way as the claim which
seeks to establish that the original condition has changed.
Falsafah (Ziadeh's trans.) p.95.]
[2. Shawkani, Irshad, p. 237; Abu Zahrah, Usul, p. 234; Mahmassani,
For the Shafi`is and the Hanbalis, istishab denotes 'continuation of that which is proven and the
negation of that which had not existed'. Istishab, in other words, presumes the continuation of both the
positive and the negative until the contrary is established by evidence. In its positive sense, istishab
requires, for example, that once a contract of sale (or of marriage for that matter), is concluded, it is
presumed to remain in force until there is a change. Thus the ownership of the purchaser, and the
marital status of the spouses, arc presumed to continue until a transfer of ownership, or dissolution of
marriage, can be established by evidence. Since both of these contracts are permanently valid under the
Shari'ah and do not admit of any time limits it is reasonable to presume their continuity until there is
evidence to the contrary. A mere possibility that the property in question might have been sold, or that
the marriage might have been dissolved, is not enough to rebut the presumption of istishab.
I'lam, I, 294; Badran, Usul, p. 218; Abu Zahrah, Usul, p. 234.]
However, if the law only validates a contract on a temporary
basis, such as lease and hire (ijarah), then istishab cannot presume its continuity on a permanent basis.
The contract will continue to operate within the specified period and terminate when the period expires.
Istishab also presumes the continuation of the negative. For example, A purchases a hunting dog from
B with the proviso that it has been trained to hunt, but then A claims that the dog is untrained. A's claim
will be acceptable under istishab unless there is evidence to the contrary. For istishab maintains the
natural state of things, which in the case of animals is the absence of training.
[4. Badran, Usul, p. 218.]
Presumption of continuity under istishab is different from the continued validity of a rule of law in a
particular case. The false accuser, for example, may never be admitted as a witness, a rule which is laid
Principles of Islamic Jurisprudence ~ Kamali 259
[3. Ibn al-Qayyim,
[1.
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