Validity of Customs and Practices in Shariah

Various customs, rituals, traditions and practices prevalent among people of a certain region or period play a very important role in their day today life. Technically they form a category in the Islamic Jurisprudence called as 'Urf. Some of them would be found very close to the Shariah whereas some others would be considered as contrary to it. And, there might be some others, which the Shariah neither endorses nor it denies to. Therefore, a categorical understanding regarding these customs and practices is required in every age to make it clear what relation they hold vis-à-vis the Islamic Law. Theologians assembled in the Eight Fiqh Seminar of the IFA have discussed on the relevant issues and reached to the following conclusions.

The reality of custom and its various forms are as under:

4.1 Literally 'Urf means a commonly known matter. In the terminology of Shariah by 'Urf are meant such sayings and acts, which are prevalent in a given society and people act in accordance thereof.

4.2 Aadat, in lexicon, means the occurrence of something.
Terminologically it covers such things, which, without any rational relationship, occur so repeatedly that observance of the same becomes as common as of something natural.

4.3 There are no substantial difference between 'Urf and 'Aadat. Both are the same in their intent and import, though different in their applications.

4.4 The difference between 'Urf and Ijma (Consensus) is that 'Urf emerges out of the conduct of people in general whereas Ijma (Consensus) is unanimity of opinion of Mujtahideen (Interpreters) on a given issue.

4.5 'Urf is of two kinds: spoken 'Urf and 'Urf by deeds. When some word or combination of some words begin to have a particular meaning among a people and, when spoken, every one starts taking them to mean the same without necessarily any rational or logical connection, it is termed as a spoken Custom ('Urf-e-Qauli). The way in which a people normally and usually act is 'Urf-e-'Amali (Practice).

4.6 Shariah acknowledges the 'Urf-e-Qauli and 'Urf-e-'Amali, both. If something gains currency among majority of Muslim population of the world it would be 'Urf-e-'Aam (Common Custom). If it becomes prevalent in a particular city, province or township or limitedly among a particular group of persons, it will be 'Urf-e-Khas i.e. Particular Custom.

4.7 Every such 'Urf or Custom which runs contrary to any specific injunction of Shariah, or its spirit or any accepted objective of Shariah, will be invalid, e.g. giving of Jahez (dowry) at the time of marriage as has become customary, or demanding money and other valuable items from the bride's people by the bride- groom, depriving girls from inheritance, utilising the usufruct of the property taken in mortgage, etc.

In Shariah, there are following four conditions for and 'Urf being acceptable.

4.8 It should be either total or shared by a large number of people, i.e. either entire person in a given society be its adherent or an overwhelming majority of them.

4.9 It should already have been in existence prior to the occurrence of a particular incident and be in vogue at the time of its occurrence.

4.10 There should be no specific understanding between the parties to a deal running contrary to the 'Urf.

4.11 Acting according to the 'Urf should not entail contravention of any clear injunction of the Shariah or violation of a clear principle laid down by Shariah.

The distinction between Shariah and Custom could be understood from the following statements:

4.12 If a commonly in vogue 'Urf is at variance with a general Nus (Plural Nusus i.e. Injunctions of Shariah) in such a manner that acting according to 'Urf may not entail the giving up of the a categorical injunction (Nus) altogether but only particularises the general Nus, in that case it is permissible to particularise the Nus in its application for the purpose of acting according to the 'Urf.

4.13 In case a commonly in vogue Custom is in conflict with the Nus so much so that acting on 'Urf entails the giving up of the Nus altogether, then the 'Urf will not be acceptable and shall not be acted upon.

4.14 Those Nusus in respect of which it is conclusively established that those are based on some 'Urf, the injuctions flowing from such a Nus may be altered with the change in the 'Urf. However, it is emphasised that to decide whether a Nus is based on 'Urf is an extremely delicate job warranting extreme caution. Renowned and celebrated Islamic scholars who are quite God-fearing and cautious in their approach can only give an authentic finding in the matter collectively.

4.15 If a Common Custom ('Urf-e-'Aam) is in conflict with something based on Qiyas (analogy), 'Urf will take precedence and Qiyas will not be acted upon against 'Urf.

4.16 In case where a Particular Custom 'Urf-e-Khas is in vogue in a very limited area, then Qiyas (analogy) cannot be given up because of such and 'Urf.

4.17 If and 'Urf -e-Khas is prevalent in a very large area, then it would be acceptable to give up Qiyas against it.

4.18 If any 'Urf is in conflict with the fundamental objectives of Shariah, then such an 'Urf will have no value and will be ignored.

Change in Custom changes injunctions, as shown here:

4.19 Those issues of Zahir Riwayat, which stand proved on the strength of clear Nusus (Qur'an and Sunnah), will not be given up because of any 'Urf. However, the issues emanating from the same can be given up against an 'Urf.

4.20 If an opinion expressed in one school of Fiqh (Islamic Jurisprudence) be contrary to an 'Urf while there is another opinion in any other school of Fiqh which is in consonance with the general conditions governing the validity of an 'Urf, adopting that other opinion will not tantamount to (going out of the parameters of Shariah), rather acting on the 'Urf is recommended.

4.21 Those verdicts, which are based not on Nusus (Categorical Sources, that is the Qur'an and Sunnah) but only on 'Urf and practice, will be modified in consonance with newly emerged 'Urf in case the 'Urf changes.