URF AND ITS APPLICATION IN ISLAMIC FINANCE

Prepared for:
Dr. Bunyamin Adewale Bello

Prepared by:
Nur Haliza Amirah bt Halemi
MMA 16SL1854
1 INTRODUCTION

1.1 Problem Statement

The Islmic financial system is the economy's financial system implemented based on
principles and values Islam.AccordingtoMohdDaud Bakar (2003), the Islmic financial
system is a system that refers to financial system run by Islmic law derived from the Quran
and the Sunnah and ijtihad scholars in interpreting and resolving economic problems which
arise from time to time.Referring to the characteristics that differentiate this Islmic financial
system with the conventional financial system. Ab.Mumin (1999) believes the Islmic
economic system is a branch of science that studies the human behavior, by its nature as
God's vicegerent in solving economic problems based on the Quran and as-Sunnah to meet
the goal of achieving the pleasure of Allah.

In al-quran and as-sunnah, there are certain legal arguments that are not stated clearly. In
order to overcome the problem, Islamic scholar have set some rules, so that ijtihad can be
done without diverting from the fundamental principles of shariah.Through this method,
scholars have suggested various methods of ijtihad which correspond to the reality of their
current situation and comply with the basic principle of sharia.

Ijtihad is the second source of Islmic law which are applicable. Ijtihad means meticulous
efforts made by a mujtahid to get and decide a practical Islmic law through the legal process
which isistinbat. Only certain issues not stated in nassfor sure only that can do ijtihad.Ijtihad
can be done in many ways and forms such as al maslahah wal mursalah, sadd zharai, al-
istishab, al-qiyas, Shari'a prophets and al-uruf.

Up to now has been a lot of studies have been made in connection with the financial ijtihad in
obvious contrast to do research in this paper will focus on the use of custom(urf) in Islmic
finance.

Generally, the law against something that will change when urf also changed or caused to
dharurah things in society. It is to prevent the emergence masyaqqah to humans. This is the
view and practice of Imam Malik, Imam Al-Shafie and Imam Abu Hanifah.
1.2 Research Questions
1. What is the mean of urf?
2. What is the function of urf in Islamic financial system

1.3 Research Objectives

The objectives to be achieved are:

1. Understand the purpose urf

2. Identify the use urf in Islamic finance and law relating to its use.

2 LITERATURE REVIEW

2.1 BACKGROUND

Old custom, usage, habits and practices were the foundation of Arab society and civilization
before the advent of Islam.Urf (custom) is a very important source of Islamic law. Many
injunction of Islamic fiqh is referring to custom.Urf is considered as a source of law making
activities from the period of the Prophet until now. During the time of khulafa ar-Rashidun,
they still retained many pre-islamic social custom and tradition and also adopted and
established some useful non indigeneos customs.

Urf comprises customs which people practise voluntarily and their unbroken practice dates
back years and even centuries. For instance, a knock on a door is deemed a token of seeking
permission, which is binding for entering a place. If somebodys home catches fire, to protect
their goods or safeguard their lives, no permission is sought. Normal practice in society
dictates that seeking permission is not needed here, because this is what sympathy and public
interest demand. Included in this usage is the matter of guests who are allowed to utilize all
the household articles which one generally utilizes; and the guests are not supposed to ask for
permission. If seeking permission was stipulated as a condition in everyday issues, people
would needlessly suffer, and the business of life would descend to chaos. The Islamic law,
therefore, recognizes the great need of the masses and regards it as a source of law, as was the
routine in olden days
2.2 REVIEW ON URF

(Al-Qurtubi, 1372H) He defines urf and maruf as branches blessed by the mind and soul
calm him.While al-quran says urf as something disliked the word of God which is "Take
what is done and enjoin good". Culture of the term also means an act or word that has
become a habit and adopted by certain groups.

(Al-Zarqa:1961, al-Zuhaili:1996 and al-Ghazali:1356) , they agreed to say that generally,

the term urf is refer to the custom in the public or the majority of a people in the word such
as (urf qawli ) or practice (urf amali).

(Ibn Manzur,1990) In this verse the Quran uses the word al-'urf with the sense of a
structured and articulated with each other. Originally this word is' urf al-faras which means
the feathers on their necks structured and articulated to each other.

(Mohamad Akram Laldin,1995) The application of urf in Islamic Finance can be traced
back as early as from the time of the Prophet (s.a.w). This could be observed through the
recognition of certain pre-Islamic practice of transaction by the Prophet, In the Jahilliyyah
period, there were various types of commercial contract practiced by the people and some of
these contracts have been approved and practiced in Islam whereas some other have been
forbidden. For instance, the contracts that were practice at that time are the contract of sale

(Yusof al-Qaradawi, 1996) In the Quran and a hadith of Rasulullah, generally there are two
forms of proof of the proposition that is broken and that is clear and the arguments Zanni.
Evidence of a clear break and this is a principle that has been set by Allah and will not suffer
any further changes to the law contained in it. While the speculative proposition, according to
al-Qaradawi again, deliberately abandoned to give flexibility to the mujtahid, to issue laws in
accordance with their current reality and continuing with the basic principles of Sharia

(Salleh, 2000: al-Jurjani, 1405) .The word of Urf originally comes from word arafa
meaning to know. It is literally defined as marifah which means as something that is right,
the usual practice, which is considered to be good and accepted by a healthy mind.

(RuqayyahTaha Jabir al-Alwani, 2004) However, for some scholars, there is a

pronouncement of al-'urf t in Surah al-Araf verse 199 described the authority of al-'urf as one
of the legal doctrine but only mean good things that are recognized by the Islamic Sharia.
(Ahmad Fahmi Abu Sunnah,2004) also quated the same definition by Ibn Abidin, from the
book of al-Mustafa fi al-fiqh written by Iman Hafiz al-Din al-Nasafi, as something that drives
people through thought which received by pure insitct. The same definition was given by
Imam al-ghazali but no such definition in the book written by al- Ghazali.

(Chiara Segrado, 2005) has written a journal about a case study on Islamic microfinance and
socially responsible investments. He mentioned that Muslim country is not same like non-
Muslim country. A significant Muslim population have tested a huge variety of economic
systems. For centuries Muslims have developed ways to integrate their religious belief with
the external economic realities of the nations they lived in. This can be seen through varying
degrees of compatibility with the empires and customs they encountered. Most things in
Islam like economic and financial issues adapts to al-urf (the custom).

(Dr.Umar Faruq Abdullah, 2006) Classical Islamic law did not speak of culture perse, since
it is a modern behavioral concept. Instead,the law focused on what we may call cultures
most tangible and important components: custom (al-urf) and usage (al-da), which all
legal schools recognizedas essential to the proper application of the law, although differing
on definitions and their measure of authority.

(Muhammad Tahir Mansoori,2013) He said that in every society customs and common
practices among the people have been given a place in legislation, and judges have recourse
to such customs if no clear law exists in such matters. Islam has also recognized such
customs, called urf, as a source of law in Shariah. Chapter five examines status and
authority of customs.in Islamic law. The author gives a number of Sharah maxims based on
urf.
Using this maxim the jurists have decided issues concerning arb n sale, penalties on various
economic offences, cash waqf, compensation for vacating occupation(badl al-khulww), and
forms of possession (qab ) in modern commercial practices. It may be stressed that not every
custom is effective in juridical decision making. It should be a common practice and widely
accepted, and it should not be contradictory to the injunctions of Sharah. If a urf is changed,
the rule based on such a urf will be modified according to the existing of urf. In this
connection, however, the authors following statement is confusing and may create
misconception: In the classical Islamic law, if two parties exchanged one mudd of wheat
with two muddof wheat, they were said to have committed rib l-fa l. But today wheat is
calculated through weight, so rib -al- fa l will take place only when, say, 5 kg is exchanged
with 8 kg (emphasis added) p. 120. Does he mean, if a person exchanges today 5 mudd
wheat with 8 mudd, there will be no rib l- fa l?Or conversely, if in old days 5 ratl wheat was
exchanged with 8 ratl, was there no rib l- fa l?? In fact the difference of quantity is
prohibited and rib l- fa l will occur whether it is done through measure, weight or estimation
so for wheat is considered as mal rib wi. It is the causation ( illah) that may be a subject of
discussion in the light of present custom of wheat being a commodity exchanged through
weigh.
(Thomas 2001)Nevertheless, Islamic scholarscan also rely on qiyas (reasoning by analogy)
to usethe rulings of one event and apply them to another,so long as one can grasp an
underlying principlewithin both events. Together, ijma and qiyas constitute two other
sources of law that are independentfrom the Sunnah and the Hadith and three
adaptivemechanisms departures from tradition becauseof local custom (urf ), public
interest (maslaha) or necessity (darurah) can also be invoked. Thus, Islamic scholars have
invoked darurah to permit Muslimsuse of conventional insurance to purchase a homein the
United States because of the unavailability of takaful (Sharia-compliant insurance involving
mutual risk).
(Syakur,2001)Urf, or custom, can be defined as recurring practices that are acceptable
topeople of sound nature. It is accepted as a basis for rulings and judgments as longas it does
not contravene or contradict Islamic values and principles. Islamic jurists have described urf
as the words and deeds acceptable to the citizens of a given region.

3 Research Methodology

The method used is qualitative method which involves the study of libraries research such as
journal articles, and books that have been published relating to (urf) custom and financial
relation with Islam.

4 Scope of Research

As stated in the objectives of the study, this paper will only discuss about the customs (urf)
and its application in Islamic finance .Others financial aspects will not be discussed in this
paper.
5 Finding and Discussion

5.1 Islamic Sharia and the Use of Urf

Islam is the continuation of divine guidance and direction.Islam continued many genuine
instructions of revealed religions.Allah the Exalted created the universe and he enforce His
law in it which is each and every item in the universe is bound to act accordingly.

Human has been granted free will, and human have the potential to do good or bad.The
choice is in human hands. For the sake of human and to show the straight path to human,
Prophet and the Messengers were raised with one and the same objective. The teaching is
same and so were their goals. The Books (al-Quran) was revealed to guide them. The author
is Allah Almighty.The Books do not contradict other books, rather they confirm one another.

With the same manner, the teaching of all the Prophet were also harmony each other.All of
them, gave the concept of Allahs Oneness, workship , all-embracing sovereignty and His
Lordship(Who created all the worlds)

Islam and others religion shared the same values such as :

1. To fight against Allhs enemies;

2. Not to vow in the name of other than Allh;
3. Not to kill an animal in the name of other than Allh;
4. To sacrifice ones life in Allhs cause;
5. To believe in the evil of homosexuality

Some example of customs in society nowadays are :

1. Whenever a currency is mentioned without any qualification, the commonly used
currency of the area is intended.
2. To whip a hired animal on account of its slow work;
3. To return a borrowed item to a child, a servant or the spouse of the owner, instead of
handing it to the lender
4. To hire the services of a lawyer, if one is unable to do a required job oneself
5. When anyone gets a home on rent, one can invite and entertain guests and friends there,
even though these issues are not part of the contract
6. If someone gets garments on rent, he is allowed by sharah to wash them, if they are
normally washed in that situation in society
7. To appoint someone as ones lawyer to conclude a business deal through him
8. Passing through a field, one can perform tayammum with its soil, and can offer prayer
without seeking the land owners permission
9. If someone learns of the expected arrival of a flood, and believes his neighbours
household items are in danger, with the master of the house not available he can raze a
wall to ground (provided the house is locked) and excavate the things. The one who razes
the wall will not be considered a criminal, because his deed is a sign of sympathy and
welfare.
10. 10. A situation emerges where a neighbours belongings are taken forcibly and
everything is gone. Then, if a resident of the locality took a step and got back some
luggage, he will not be considered responsible for the loss of the items gone.

5.2 Different Urf and Adah

Word adah is derived from the Arabic root of (al-Aadah), which means to return or to
repeat. The word refers to a habit or a continuos practice (daydan).Urf and adah are largely
synonym and majority of ulama have used them.Some of ulama differentiate them by
holding that adah means repetition or recurrent practice and can be used by both inviduals
and groups.

However, urf is not used in this capacity. Urf is not referred to the habits of individuals but
urf is the collective practice of large number of people that is normally denorted by urf. The
habits of a few or even a substantial minority in society also cannot be as urf. Only the
collective practice of a large number of people that is normally denoted by the word urf.So,
this two elements has clear the distinction between these two terms.
5.3 Different Between Urf and Ijma (Consensus of Jurists)

Urf and ijma has so much common one another which sometimes can make us
confusing.Even they look quite similar, but there are substantial differences between urf and
ijma. The summaries are as follows:

1. Urf are made by getting the agreement from all the community or the dominant majority
of the people and its existence are not affected by the exception or disagreement of a few
individuals.
On the other hands, ijma requires the agreement from all mujtahidun for the conclusion of
the periods or the generations in which it materialises.Disagreement of dissension has no
place in ijma and any level of disagreement among the mujtahidin invalidates ijma
2. Customs does not depends on the agreement of mujtahidun, but must be accepted by the
majority of the people,including the mujtahidin.
3. The rules of urf can be change at any time and custom may in course of time give away
another custom or may simply disappear with change of circumstances.
In the case of ijma, there is no amendments or abrogationcan be make once an ijma is
concluded since it was includes fresh ijtihad on the same issues.
4. Urf requires the element of continuity in that it can only materialise if it exists over a
period. On the other hand, ijma when it comes into existence is when mujtahidin reach
unanimous agreement which in principle, requires no continuity for its conclusion.

5.4 Classification of Urf

1. Urf al-Qawli ( verbal custom) and urf al-Amali ( practical custom)

Verbal urf consists of general agreement of the people on the usage and meaning of words for
purposes other than their literal meanings. The customary tends to become dominant because
of such agreement and the original or literal meaning is reduced to an exception. For example
salah.

Practical urf occurs in normal daily life in certain places like taking for a vacation on the New
Year day. Therefore taking vacation on this day is considered as urf for a certain group of
people and can be used by such a group every year.
2. Urf al-amm (general custom) and Urfal-Khass (particular custom)
Urf, whether verbal or in practice is divided into two type which is general and particular
custom.Generalurf is a custom which is prevalent everywhere among all people in a matter
regardless of the passage of time.An example for this type of urf is istisnaa in many matters
such as clothing, furniture, etc.

While, particular custom is only prevalent in a particular locality, professional of trade. This
type of urf is accepted by the people in a particular place and not in all places. The example
of this type of urf is such as the practices among the traders in wholesale trading which allow
the payment of goods to be deferred to certain period of time, which is not practiced in retail
transactions.

3. Urf al-Sahih (valid custom) and Urf al- Fasid (invalid custom)

Valid custom is the custom practiced by people, which does not contravene the shariah and
deny the interest of people and at the same time does not bring corruption. On the hand,
invalid custom is the custom that is practiced by the people but there is evidence to show that
it is against the principles of shariah or it denies the interest of people or it brings corruption.
An example for this type of urf is the practice of usury in business transaction. Although it
was common among many people, it clearly contradicts the clear text of the Quran and
Sunnah. Therefore, such transactions are invalid and must be avoided.

5.5 Condition of Valid Urf

There are some requirements that must meet to consider before to consider it as urf.
1. What is commonly practice does not have any conflict with the sacred text of al-quran
and as-sunnah such as justice, cooperation, and benovelence/welfare.
2. The custom must prevalent or prevalent. Ibn Nujamn said :
Custom is given legal consideration only when it is recurrent or prevalent. For example
gold and silver replace the fait currencies across the globe, and this is subjected to all
shariah rules that apply to gold and silver like payment, calculation of zakah on wealth,
repayment of loan and many more. But if the custom is not strongly established, being
practice by some people and not the other people, that custom has no legal effect because
 other custorus are competing or coexisting with it, so none of them can be considered a
standard
3. The custom must existent at the beginning of the action, which effectively means that it
should have proceed it and become established by the time of the action.
Al-Suyuti said that the custom by which words can be construed is a current/pre-
existing(custom) not that came later.
4. The custom has no conflict with contractual stipulation agreed to by the contracting
parties. For example, buying house.The buyer will bear the expenses of transferring the
title .But if a particular buyer and seller agree that the seller will bear those expenses,
their argument overrides the custom.

5.6 Level of Urf in Madina

First Level
The practices which exist during the lifetime ofthe Holy Prophet.

Second Level
The routine of people in Medina until the third caliphUthmanmartyrdom.

Third Level
They are two evidences dispute.Forexample, two traditions or analogies differ and Madina
residents act in accordance to one evidence. Whether or not such usage is authentic, it is a
disputed.Imam Malim, Imam al-Shafi and some followers of Imam Ahmad b. Hanbal said it
is authentic. While,Imam Abu Hanifa and some followers of Imam Ahmad did not agree.
Fourth Level
The practice of later generation of Madina according to Imam Abu Hanifa, Imam al-Shafii
and Imam Ahmad.Different with others followers, Imam Malik followers are contradict on
them but they still reliable on urf and this is the view of conformists.

5.7 The Application of Urf in General

1. Interpreting unrestricted texts when the linguistic meaning is not precisedly determine.
Al-Suyuti quoted scholar as saying :
Anything mentioned in shariah (text) without qualifications, when they are no
parameters for it in the shariah or the Arabic language should be referred custom.
2. Establishing of shariah ruling for issues that are not explicitly mentioned in the
shariahtexts.In fact, al-quran and as-sunnah tend to provide general rules and law
 concerning all things.They do not covers all details for all including their future
manifestation.
3. Amending shariah ruling that are based on people standard practice.When the customs
change, the shariah should change accordingly.

5.8 The Hukm in Urf

According to the research al-TayyibKhudari al-Sayyid, a professor of UsulFiqh at Al-Azhar

University in Egypt in his book fi al-ijtihad ma la nassafih, he said that many muslim
scholar use urf as the foundation of law like scholar among Hanfiyyah, Malikiyyah and
followed by Hanbali and other hab According to him, the major of muslim scholar are agreed
to accept urf as foundation of law even though there is different opinion among them until
urf is included in arguments debated among the jurist.

Urf is acceptable as the lefal basis for a number of reasons, among which are :

Sura al-aaraf verse 199 :

Be your promised forgiveness and enjoin what is right (al-'urfi), and turn away from the
ignorant.
The word urf in the verse, muslim jurist understood it as something good and have become
the norm of society. Based on that, the verse is understood as an order to do something that
was considered to be good so that has been a tradition in community.

5.9 The Concept of al-Urf and al-Makruf

In determining the limit of Kifaya,it is difficult because it is subjective according to the

timing and level of economic to someone. The determination of the basic highlighted in the
Quran is based on the concept of al-maruf. Al-maruf means something good, appropriate,
adequate and according to custom requirements. There are major challenges in defining the
concept of maruf and al-urf(custom) because this two concept cannot be measured or
quantified.

Ibn Abidin define urf with al-Amru ( ) which means something

that happen repetitively without any real and rational relationship. Basically, we can deduce
the meaning of maruf/uruf as a practice or the common need by a group of community at
same place and certain time. Al-Urf acts as one of the determining instrument in hukm (legal
arguments).

5.10 Urf in Kifaya Element

It is undeniable that the calculation of the adequacy of the remuneration is something that
difficult and very subjective. So far no one formula or value enough can be finalized. This is
because the remuneration will be subject to the households, food, housing, economic
conditions, constraints of time and life. However with reference to the al-kaff backup that
much has been said by the Prophet Muhammad and ancient and modern scholars, then
determining sharia compliant basic remuneration rate of sharia is becoming more clear.

Adequacy of remuneration is referred to urf economic formula which is appropriate to a

person, a family, community and country. The word maruf comes from words arafa (
)which means good practice, note, urf or keep the culture. For example, urf in Malaysia in
2010 until now have shown that the use of smart phones (with data or internet access)
exceeding 95% and a penetration rate access internet 2015 increased to 67% then, uruf
makes use of mobile phones can be categorized as basic needs. So supposedly the
remuneration for the purpose included in the count of al-Kifaya had. Car or motorcycles are
part of subsistence for the poor, simple and rich in Malaysia and it is calculated as basic
human needs. This was reinforced in the story of the prophet Khidr and Moses recounts lives
of poor people who have boats for a living. Logically in the days and even then the poor have
/use. It should then canoe on the present level of basic human needs car to work. The same
concept and situation applied in the context of people's lives today. Therefore, items hadal-
Kifaya taken into account are food, clothing, housing, utilities, transportation, health care,
school expenses, communication and modern remuneration.

5.11 Contract Pronouncement

In terms of the pillars of the contract, the existence of different views between the scholar
whether pronouncement when the transaction should be clear or not or quite simply nod from
both the buyer and seller.Imam Shafi'i believes that buyers and sellers need each other to
avoid any confusion or misunderstanding in contract, while the others denominations do not
feel pronouncement is not necessary and it is sufficient to simply signal loss in the transaction
of business.
According to Ibn Qudaamah, if the pronouncement of consent is mandatory course has
narrated many traditions. Thus, according to Ibn-Qudaamah, custom plays a role in
determining an appropriate manner.

5.12 The Existence of Goods During the Contracts

Goods must exist when making sales. But there are other traditions that show as Rasul Allah
allow buying and selling goods that do not exist, namely the booking form. Therefore, the
remaining custom items play a role whether it should exist at the time of contracts or not.
This is because sharia forbids selling of goods without confirmed the existence of the goods
but Islam still allow the sale of goods that will exist in the future such as Bay Salam. Some
jurist said it was allowed and some said it was not allowed. this is to avoid any problems that
will occur later in life such as goods received is not the same or fraud in the transaction

5.13 The Applying of Urf With Different Level of Understanding Within

Countries

It is depends on the fatwa in question. If fatwa use is not indisputable and not contradict with
al-quran and as-Sunnah, the urf can be applied. Not all fatwa can be obtain directly from al-
quran and as-sunnah, there are some fatwa need juristic discretion (ijtihad).In ijtihad more
than one opinion is acceptable and where scholars have disagreed, then different people will
follow different opinions.An example of ijtihad is the issue veiling the face of women.

But if the fatwa is contingent on cultural and customary usage (urf), the fatwa only relevant
only within the cultural contexts.Urf plays a big role in matters of Islamic law where only
general ruling is given without the details of that ruling having been precise define

Strong evidence urf recognition in Islamic law in the following hadith related by Aishah:
Hind the mother of Muawiyah, said to the Prophet (peace be upon him) : Abu Sufyan
(Hinds husband) is a tight-fisted man. Is there anything wrong if I take money from secretly
The Prophet (peace be upon him) said: Take for yourself and your children to suffice your
needs according to what is customary. [Sahh al-Bukhr].

Islamic Law is particularly sensitive in consideration in customary usage. For instance it is

prohibited for men to dress like women. Good example for this question is whether men is
allowed to wear wraparound skirt. In Malaysia, men are not wear skirt but they wear sarong.
In contrast to the situation, culture in Somalia, men there wear wraparound skirt. Therefore it
is permissible for Muslim men in those countries to wear such clothing. In other part of
Muslim world, wear a wraparound skirt is viewed exclusively as the dress of women. What
matters is how his style of dress is viewed according to the customs of the country in which
reside.

6 Conclusion

Urf is very important in determine new issue related to fiqh muamalat since it was recognised
as source of law in almost all legal systems. Urf helps a lot in resolving the matters that had
no provision in al-quran. This is because al-Quran only explains certain matters briefly but
this does not mean al-quran is defected.

Generally, the hukm to urf is change then the uruf also changed or caused to dharurah things
in society. It is to prevent the emergence masyaqqah to humans. This is the view and practice
of Imam Malik, Imam Al-Shafie and Imam Abu Hanifah.

Therefore, to understand and explain a verse of the Quran one must refer to many aspects and
related fields to gain a proper understanding and in accordance with the requirements of
Islamic law.
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