QAWAID FIQHIYYAH

ISF 2102

DR. YUSUFF JELILI AMUDA 0176249376 0149650762

yusuffyja@iium.edu.my akorede4@yahoo.com

Analysis of the Maxim: al- adah muhakkamah (Custom is authoritative) Introduction Customary usage is recognized in Islamic law as an authority on which judgment can be based. The recourse to custom dates back to the epoch of the Prophet and was later exploited by the Companions and others. There are many cases reported in which rulings in Islamic law are based on the customs of the people. Malik Ibn Anas considered the `urf of the people of Madinah (`amal ahal al-Madinah) as the source of Islamic law whenever there was a dispute in law making..

Though, Malik view on `aml ahal al-madinah suggests that `amal ahal al-Madinah is not only `urf of people of the Madinah but a practical exercise of what the Prophet left behind which no one should go against it. But the fact of the matter is that while Madinan's scholars enjoyed originality by receiving knowledge directly from the Prophet and his companions, there are many issues that were based on the ijtihad (personal reasons) of people of Madinah. In addition, al-Shafi`i had no option than to change his opinion in Egypt, contrary to his view in Iraq, because of the disparity in the customs and circumstances met in Egypt. Undoubtedly, `adah/`urf is considered as an authority in all legal systems

Definition and Interpretation of the Maxim alAdah Muhakkamab Adah (Practice) or `urf (custom), are used synonymously and interchangeably in Islamic jurisprudence. Adah is derived from the Arabic letters ayn, waw, and dal which means "return". It also denotes the custom, manner, and habit that people constantly return to, time after time. It is defined as "practices that have been penetrated deep among people by recurrence and are acceptable to people of sound nature, " or as "a repeated matter which has no connection with reason".

`Urf on the other hand is said to be synonymous of `adah as they resemble each other in definition and concept. `Urf is a noun form derived from the verb `arafa, which means to know. It is technically defined as "what is established in life from reason and acceptable by sound natural disposition. "al-Zarqa jnr. in his effort to distinguish between `adah and `urf,, describes `urf as "the behaviour of a group of people in their saying and doings. From this, `urf can be viewed as lesser in scope than `adah because it is a custom of a group, although, for `adah it could be a custom of individuals, such as the custom of menstruation in women, or in groups of people, such as the terms used in a large set of people. So it can be said that all `urf is `adah, but not all `adah is `urf.

As expressed above, the use of adah and "urf is controversial. However, one can categorically say that they are often used interchangeably. Ibn Abidin, (d. 1252 AH), remarks that habit is derived from frequency and recurrence because it happens frequently and in succession. This then becomes well known and becomes a well-established practice in souls and minds. It is received without any connection and factual evidence as a customary fact. Adah and `urf imply the same meaning despite their conceptual dissimilarity. It is also important to state that for `urf to be accepted and applied in Islam, it should be of sound nature as not all custom, especially in the modern age, can be accommodated in Islam.

Giving custom a legal ruling in Islam is inevitable due to the nature of its law. Islamic laws that deal with universal mankind and the norms of ethnicity vary considerably, however. This is an inevitable consequence of custom being intuitively rooted in Peoples lives, and in their daily activities and utterances. Thus, judges need to have recourse to the customs of people before giving any conclusive verdict in any case of litigation.

Hujiyah (Legality) of the Use of (al-Adah) Custom in Islamic Law Many Islamic jurists recognize adah and `urf as supportive sources of Islamic law. The justification for the legality of adah is traced in the texts, although there is nothing in these texts that stands as direct justified evidence for the purpose. However, there are derivative statements that form inferences for the recognition of custom. There are various sections in the Qur'an and the Hadith of the Prophet in which the use of custom could be inferred. In the Qur'an 7, verse 199, for example, God enjoins four things as `urf (literally translated as good). According to Ibn 'Arabi (d. 543/1148), the meanings of `urf in this verse indicate what it is meant in this context.

There are four interpretations given to the meaning of `urf in the verse 1-it is synonymous of ma'ruf, kindness; 2-it means there is no god except God; 3-anything known to be part of religion 4-anything that is good, not rejected by people and endorsed by Shariah. A l-Qurtubi further explains the relevance of the word in question saying, " `urf, ma'ruf and marfah is anything that is good and is approved of by reason and acceptable by mankind. Al-Zarqa Jnr. maintains that the word 'urf in this verse forms the proof for the legality of 'urf in this context, because the customary practice of people is normally a good practice and reasonable accepted.

In Qur'an 4, verse 19 the word ma'ruf, as an objective noun of `urf, is used to indicate the authority of custom and culture in the Islamic legal framework. Ibn Kathir, (d. 774) in his commentary on this verse also canvasses that maruf (here is a custom of any good character that is reasonable and satisfactory to the soul. Regarding this verse, al Nadwi also observes that God enjoins both couples to live together and give each other their due rights based on their custom and culture. Such interpretations, therefore, certainly change according to different nations and different people.

In many traditions of the Prophet, there are instances of giving customs authority and arbitration. The adjudication of custom can be found in the case of Barra Ibn Azib who came to the Prophet and asked about a camel entering the garden of a man and destroying it. The Prophet said: "The safety of the property is to be borne by the owner of the property in the day and the safety of the animal is to be borne by the owner of the animal in the night. " In another version he said: ".... And the owner of the animal must be responsible for what their animals destroy in the night.

From these two narrations, the jurists adjudicate that if animals destroy property in the day there is no liability on their owner, but if property is destroyed during the night, the owner will bear the liability. This is because the existing custom of that time was that the owners of animals used to leave their animals to look for food during the day. However, acting contrary to that norm will lead to an imposition of compensation on the perpetrator. Remarking on the effect of this hadith, Ibn-Najjar says: "This is the cogent and best ever proof of considering adah in Islamic rules.

Undoubtedly, Islam gives room for custom, whenever there is no explicit text, or even where there is a text, but there is no precise limit to the application of that text, or if there is divergent interpretation of it in the language. This is evident in the advice given to a woman by the Prophet when she asked him about the inconsistency of her menstruation. The Prophet referred her to the custom of her contemporary female companions and with what she was used to before the inconsistency. Another hadith directive that has attracted controversy regarding its authenticity is the hadith in which it is reported that the Prophet said: "What the Muslims deem to be good is good in the sight of God. Scholars have disputed the authenticity of the hadith. For example, some say that it is mawquf, (the hadith that the chain stops at the companion and is not attributed to the Prophet).

However, al-Amid-1 and al-Suyuti claim the hadith to be muttasil, (attributed to the Prophet). Whether it is mawgiif or muttasil, the implication of the hadith confirms the authority of adah and `urf in Islamic law. The Companions of the Prophet were trusted and deemed to be rightly guided ones, so for them to invoke what contradicts the text undermines their status. It is also narrated by Aisha that Hind, the daughter of 'Utbah, wife of Abu Sufyan, came to report her husband for being a miser. The Prophet advised her to take what was enough to maintain herself and her son according to `urf.

There are many ways in which customs can be admitted as authority in Islamic law. Among others these are: 1-"Giving judgments on issues where explicit evidence cannot be found in the primary source of the Shariah, as what is established by the virtue of custom is akin to that established by text. 2-" Specifying the meaning of text or exerting a restriction on the absolute nass (text). " 3-Establishing legal rules and conditions regarding people's daily interactions, and 4-utilising presumptive indications in settling disputes among people on certain matters that are pre-dominated by `urf.

Some related maxims of custom and its effect. 1-Istimal al-nas hujjah yaghib al-amal biha (People's practice is authoritative and should be reckoned with). Generally, custom and the practices of people have to be given consideration in any matter that is not detailed, or if its verdict is based on the `urf and adah of the people who use it. In regulating the extent of the application of `urf in Islamic law, jurists have unanimously agreed that if custom contradicts the explicit nass (text of the Qur'an and hadith), then that customary rule should be discarded. Thus, custom is of no use when there is a factual text.

However, the relevance of the above maxim is to widen the authority of enforcing custom in Islamic law. If a custom does not contradict a text, then it is enforceable. Of course, the maxim also includes all kinds of `urf, be they general, individual, practical or verbal custom. The Islamic jurists unanimously agree that if a custom is general it means that it is not restricted to a particular set of people, place or time. An example of this is in the contract of manufacturing, (istisna`). This type of contract contradicts the general principle of Islamic contracts, but it is allowed because it is a custom known to the people since the first epoch of Islam. Contrary to the general practice of `urf and adah, there is disagreement among scholars on the effect of an individual adah `urfiyyah - the practice which is known to a particular region, or to a set of experts

The majority of Islamic jurists, including Hanafites and Shafi`ites, do not consider individual custom as specifying general principle. Individual `urf therefore, has no effect in identifying the meaning of a text or of the general principles of Islamic law. This is because if the individual `urf of one particular region is considered to be specific to the text, the other individual custom would be undermined. However ,it can be asserted that if the individual custom has to be given effect in specifying a text, the use of it should be restricted to the people involved, and it will not become a binding rule on the other region where there is another custom in place.

al- adah aw al- `urf amali (Practical Custom): (a) al-maruf `urfan ka al-mashrut shartan. (What is known by the virtue of custom is as a stipulated condition). al-ta yin bi al-urf ka al-ta yin bi al-nas (What is stipulated by the virtue of `urf is as what is stipulated by the text) Custom can also be practical, that is, it can be a physical action. The two maxims above consider the effect of such `urf on people's activities. Thus, they consider `urf as a measure to determine the conditions that bind a human's 'activities and engagements with other people of the same custom, even if those conditions are not stipulated at the time of the engagements

For example, if a visitor eats his host's food, he should not be charged with theft, if it is customarily known that a visitor has been given the right to utilize his host's property without permission. It is also the case that the `urf of some regions stipulate that a dowry is divided or suspended until a specific time known to them. This stands as a condition, even if it is not expressed as such during a marriage engagement. Thus, if one of the inhabitants of that region conducted a marriage without the full dowry being paid, his marriage should not be invalidated, and any affair between the couple will not be deemed as adultery. However, the Hanafites consider practical or physical customs to be specifying texts if the custom is a general custom, as opposed to the majority who do not endorse `urf to be specifying texts, unless that `urf is verbal.

Having explained the practical custom, the opposite of it is verbal or expressed custom. The 'urf qawli is a conventional term used by a group of people for a specific meaning, which when it is used is intuitively understood among the people who use it without any linguistic indication. In other words, the verbal custom is a custom that is used in lieu of the original language, while often the original word and real meaning has become obsolete and derelict

There are four types of haqiqah; lughawiyyat (linguistic) shari`iyyah, (legal), `urfiyyah `ammah (general custom), and `urfiyyah khasah, (particular/individual custom). The first maxim indicates that if there is a contradiction between the language in use and the `urf, then preference will be given to the indicative customary meaning. An apt example is the use of dirham and dinar today as opposed to its use in former days. Moreover, the language that constitutes defamation can be considered as `urf qawli. Thus, if the language in use is regarded as defamation in one norm, and as otherwise in another norm, the outcome will be affected by where it is considered to be offensive. Thus, someone can be charged for insulting if he uses language that is deemed to be offensive in one place, though it may not be deemed offensive in another.

However, the second maxim considers the effect of what is written, compared to what is expressed. As the verbal `urf is considered to be effective in giving legal verdicts, it is also important to consider what is written for those, as many people find it difficult to express their thoughts clearly in the legal system. Before a written document can be legally tenable it should be clearly understood, and the handwriting of the presenter should be known. Thus, if someone wrote a statement deemed to be insulting and offensive, even if such person is dumb, his writing can be admitted as evidence of committing an offensive statement. As such, his written document is tenable as evidence in legal procedure.

Another sign representing expression is the recognized sign of a dumb person and this stands as a clear statement, verbally expressed. To recognize this sign is one of the ways of establishing justice in human activities. This is because custom - as in the way a dumb person expresses his thoughts - is recognized and thus a legal effect is attached to it. This sign is considered in confession, witness, contracts, swearing, defamation, apostasy, and so on.

However, the sign of a dumb person is not given status in a case that involves the absolute rights of God. This is because of the doubt attached to it and because of the maxim that says, "al-hudud tudra' bi al-shubhat" (a fixed punishment should be averted by means of doubt). If a dumb person commits a crime that involved the absolute right of God, he should not be punished, and if he claims or witnesses that someone else committed the crime that constitutes hadd, then, as such, hadd would not be executed because of the averting of hudud in the face of shubhat.

Maxims stand as Conditions binding the Enforcement of Custom It has already been stated that an acceptable custom has to be reasonably endorsed by people of good and sound behaviour, but there are other conditions that have to be met before custom can be authoritative and acceptable as a supportive source of Islamic law. Thus, the sub-maxims below stand as conditional maxims regulating the enforcement of custom. (a) Inna al-Adah tuhkam fima la Dabit lahu Sharan (Adah is enforced where there is no Legal Detail) (b) Innama tu`tabar al-`Adah idha ittaradat aw ghalabat (Effect is only given to Adah that is Regularly Occurring and Universally Prevailing) (c) AI-Ibrah li al-Gbalib al-Shaii la al-Nadir (Effect is only given to a Prevailing Wide spreading Custom, not a Rare One) (d) La `Ibrah li al-`urf al-tari'(No effect for an Emergent Custom)

The four maxims above include some of the conditions to be considered before custom can be authoritatively enforced. The four maxims as conditional criteria of the enforcement of custom can be divided into two parts: One: custom and texts. Two: the nature of acceptable custom. Regarding the former, the ostensible and uncontroversial condition set for the legality of adah and `urf is that there should not be contradiction between it and the explicit texts. However, there are many ways in which `adah and `urf can contradict texts or what is established through texts. First, when `adah contradicts a text in any form, such as in the `adah regarding nudity in some parts of the world; the engaging in usury in most of the banks of the world; the legalization of manufacturing and drinking alcohol; the legality of prostitution in some countries of the world.

All of these adat and a`araf are vehemently prohibited in Islamic countries so that if anyone engages in any of the above customs in a region where Islamic law is being practised, he shall be deemed to have committed a sinful act, punishable under Islamic law. Second, when adah or `urf contradicts a text in some way, such as a general text and the ruling derived from it through means of analogy. In this case, if `urf is general it can be considered against the text as `urf `amm that explain the general text. Third, when there is a text that has a ruling based on `adah and `urf. There are some scholars who opine that such a text can be left for `urf, if the `urf has changed, although others opine that it cannot be changed. Fourth, when urf contradicts issues that have been established by ijtihad of Islamic scholars, that verdict would then be changed according to the change in the custom

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