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Al Qawaaid Al Fiqhiyyah

Al-Qawaa'id al-Fiqhiyyah: The major comprehensive legal maxims

2013 Spring Session (March 31 to June 2 2013)

Class taught by Shaikh Jamaal Zarabozo


2013-03-31 Class Notes


Review of previous quarters


Qaeda (legal maxim) is a short profound statement which captures a general principle which applies to many branches of fiqh. This field developed by looking back at the fiqh and what generalities existed in the fiqh. With respect to qawaid, there are some qawaid which are so general that they are almost universal as far as fiqh is concerned. Then there are qawaid which are so specific that these qawaid are specific to just one branch or part of a branch of fiqh. There are 5 major qawaid which are very general (all 5 are traceable to Imam Shafi however المروروذي al Merurrudi (d. 462H) first wrote them down):


1)  الأمور بمقاصدها (the matters are according to the goals behind them)

2) اليقين لا يزول بالشك (certainty is not removed by doubt)

3) الضرر يزال (harm is to be removed)

4) المشقة تجلب التيسير  (hardship gets facility or ease)

5) العادة محكمة (custom is to be enforced)

6) أعمال الكلام أولى من إهماله (both Usooli and Fiqhi) Words are to be given meanings over putting it aside.


Usooli qaeda's are more related to derivation of law, and fiqhi qaeda's are more related to the practice.


Sixth Qai’dah: Generally people don’t say things unless they intend something by it. Example: if someone says to the donkey and his wife: one of you is divorced. We could say that he means his donkey, but the sixth principle would suggest that it applies to his wife.


العادة محكمة

Custom or Urf is to be enforced


The fifth principle is “the custom is to be enforced” and it is the topic of this quarter. The custom is also called ‘al Urf’. The author Baha Hussain has written a book on each qaedah. This qaedah has been written about in the fiqh and the law (qanoon). The difference between fiqh and qanoon is that fiqh is the religious law and qanoon is the secular law.


From the point of view of Islamic history, Ibn Abidin (d 1252 H) a hanafi scholar who wrote the first book (a small treatise actually on the question of Urf). This was not too long ago and now there are lots of people who have written about it recently.


Among the madhabs, the Malikis give this the most emphasis, then the Hanafis then a big gap, then the Shafi’is then the Hanbalis.


There are some shuroot (conditions) upon which we accept this qaeda. The sunnah can be looked at as the Urf of Prophet (pbuh). So there can be conflict all the time between the Urf of Prophet (pbuh) and the Urf of the people. Was the mission of the Prophet (SAWS) not to give the people to give a new custom which is pleasing to Allah (swt)?


We know for sure that Prophet (pbuh) did one of three things regarding Urf. 1) He (pbuh) approved of it, 2) He (pbuh) reformed it and 3) He (pbuh) brought something new. For example regarding the marriage the famous hadith of Aisha (ra) where Jahiliyyah had 4 types of marriage and he removed the 3 out of them and on the one Prophet (pbuh) kept it was kept with reformation based on Islam.


We all know that situation changes overtime and some changes take place where new situation requires that custom be kept in mind. For example, at some point if a husband provides one garment for summer and one for winter then once in hanafi fiqh this was sufficient. Today can we say these two garments per year enough for husband to fulfil his duty of providing for the wife? This one garment in winter and summer is not based on text of Quran or Hadith but it is based on the Urf at one point in a land where it was considered enough for husband to provide these two garments. So one of the goals we have is to find out what is acceptable Urf and what is not acceptable Urf based on the Shariah. If we have time, inshaAllah we will do case study of a Somali Island called Lamu and their customs regarding marriage and child birth.


But this principle of related to the Urf can be abused similar to Maqasid al Shariah; e.g. after colonial times in occupied Muslim countries, in many case that in some of the countries they gave a lot of weight to their customs -- Abdurrazaq Al-Sanhuri -- when he wrote the civil code of Egypt, he put ‘urf before the Shari’ah. Because of that, some other countries didn’t accept it.


He said: First comes the law from the state, then comes ‘urf, then comes the Shari’ah.


Hence it is open to abuse. They want to argue that ‘urf takes precedence over the Shari’ah, and that it becomes a competitor to the Shari’ah. Especially those Muslim in the last 150 years who were strongly influenced by the orientalists. They started to look at religion based on the Darwinian theory of evolution and other colonial views and they started to look at all of Shariah as something based on Urf rather than Shariah being based on Quran and Sunnah. This view is being held by some circles even today and as a result it is quite a controversial topic today.


The Shari’ah neither condones nor condemns customs. The Shariah has some things that are fixed and others that are flexible. Those things that are fixed, and others that are flexible. Example: mahr. The condition of paying the mahr will not change, but the amount/nature of the mahr is open. If ‘urf changes that’s OK, but the principles of mahr can not change.


Example: if there is a custom where the husband receives the payments instead of the wife. Here the Shariah will not accept it.


Footnote: The word in the qaeda is Al Aada and not Urf. Shaykh Jamaal thinks that Urf is a better word but we can live with Al Aada for now.


The root meaning of the word Urf something which built upon clear and easy to see, something which is built upon what comes after one another (as in Surah al Mursilat describing Angels coming one after another) third meaning is something that leads to comfort or tranquility.


Example: http://quran.com/77/1

وَالْمُرْسَلَاتِ عُرْفًا

Sahih International: By those [winds or Angels] sent forth in gusts [one after another]


Urf is also used in the Qur’an where it also has the meaning of something that known, good, commendable or wholesome (including the variant ma’ruf).



كُنتُمْ خَيْرَ أُمَّةٍ أُخْرِجَتْ لِلنَّاسِ تَأْمُرُونَ بِالْمَعْرُوفِ وَتَنْهَوْنَ عَنِ الْمُنكَرِ وَتُؤْمِنُونَ بِاللَّهِ ۗ وَلَوْ آمَنَ أَهْلُ الْكِتَابِ لَكَانَ خَيْرًا لَّهُم ۚ مِّنْهُمُ الْمُؤْمِنُونَ وَأَكْثَرُهُمُ الْفَاسِقُونَ

Sahih International

You are the best nation produced [as an example] for mankind. You enjoin what is right and forbid what is wrong and believe in Allah . If only the People of the Scripture had believed, it would have been better for them. Among them are believers, but most of them are defiantly disobedient.


The technical term is also closely related to linguistic meaning -- something well-known, established and seen, something acceptable, nobody objects to it. So all of the root meanings fall into the technical meanings.


Scholars have given different technical definitions, many of them close to one another: the things that are acceptable to the individual’s mind and which he naturally accepts. Others restrict it to be “what good people naturally accept.” Perhaps that shouldn’t be in the definition. Because there can be ‘urf in the time of jahiliyyah. We know there is some ‘urf that some people actually accept.


The definition usually given for عادة our scholars “a continuous practice whose repetition can not be explained rationally.” Maybe a better definition is a “habit”. Another difference is that ‘aadah also includes personal habits.


Some scholars say ‘aadah and ‘urf mean the same thing; but for this particular qa’edah, the meaning is also closer to ‘aadah.


One more convincing reason to use the word ‘aadah, is the other reason to include natural phenomena; e.g. menarche varies from culture to culture. We would say something like the ‘aadah in the USA is for women to reach menarche at the age of twelve.


2013-04-07 Class Notes


We are discussing the qaeda, the custom is to be enforced. We are discussing the words urf and al aadah.


Comparison of Al Aadah and Urf


Al Aadah includes personal habits or idiosyncrasies that are not included in Urf. Al Aadah also includes natural phenomenon. One of the reasons why the scholars discuss Al Aadah is because of the miracles. This discussion migrated from the field of aqeedah to the field of usool al fiqh.


There are some scholars say al aadah is related to actions and urf is related to natural events. This is mentioned in some books but does not have any strong evidence for it.


What is the difference between a repeated act and a custom? The custom is more of an established action for a society while repeated action is not necessarily a custom since it is not established.


What is the difference between ‘urf and sunnah?


The Sunnah of the Prophet (SAWS) is that there is revelation behind it (the Qur’an says: he taught them the book and the hikmah -- and the hikmah is understood to be Sunnah). Sunnah has priority over ‘urf.


And the Prophet (SAWS) either accepted the ‘urf, modified the ‘urf or rejected the ‘urf of the time.


Footnote: Some early orientalists attacked Islam and said that sunnah is nothing but established urf of the people. These orientalists include Goldhizer, etc., and their position has been refuted by Muslim Ulema thoroughly.


هُوَ الَّذِي بَعَثَ فِي الْأُمِّيِّينَ رَسُولًا مِّنْهُمْ يَتْلُو عَلَيْهِمْ آيَاتِهِ وَيُزَكِّيهِمْ وَيُعَلِّمُهُمُ الْكِتَابَ وَالْحِكْمَةَ وَإِن كَانُوا مِن قَبْلُ لَفِي ضَلَالٍ مُّبِينٍ

Sahih International

It is He who has sent among the unlettered a Messenger from themselves reciting to them His verses and purifying them and teaching them the Book and wisdom - although they were before in clear error -


The word Hikmah in the above verse establishes the legislative power of sunnah.


Comparison of Ijmaa and Urf


Ijmaa is the consensus, one  meaning is unanimity or it could mean opinion of vast number of scholars. So you have to be careful of the correct meaning of ijmaa. Here it means the unanimity of the scholars (not the followers or masses), here the scholars mean those whom the followers are bound to follow (regardless of whether the masses follow them or not in practice, but the masses are bound to follow them). The weight of a commoner does not play any role in ijmaa.


Urf is ranked below ijma. Ijmaa is considered Qatai (definitive) and one is not allowed to go against it.


Shaikh gave an example of the aqd of the wedding contract, if for example the urf is to say I do, then it could mean that the aqd has taken place.


Comparison of Actions of the people of Madinah and Urf


What about the Urf as Amal Ahlul Madinah?


Is action of Ahlul Madinah important and the answer is yes for the Maliki fiqh. They accepted the Urf of the people of the Madinah. Imam Malik is born roughly around 80 A.H so he was born 70 years after the death of the Prophet (pbuh) and he live up to 150 Hijri in Madinah so he considered many practices of the people of the Madinah as ’living sunnah’. The Ulema did not agree upon this principle of the Urf of Ahlul Madinah. Many scholars disagreed with him, in particular Al-Layth ibn Sa’d. Al-Layth who is the student of Imam Malik himself.


Footnote: What about the urf of Ahl ul Kufah? The Kufah was created as a military town out of scratch so should it be given weight since it was founded by the sahabah? Perhaps, but most scholars don’t.


For example, do you think the practice of khayar al majlis can change in Madinah between different generations. Ibn Taymiyyah has a small book on the correctness of the customs of Ahl ul Madinah, and he brings the example of Adhan which he thinks that had not changed by the time of Imam Malik.


Others have pointed out that even in Madinah lots of new places had moved in and the Sahabah commented on how many changes had taken place at the time of their death.


What is the relationship with ‘urf? The actions of the people of Madinah are an ‘urf.


We will visit this topic later, but now we will study the basis for this qaeedah, how is this qaeedah derived?



Concept of Maroof


The concept of Urf is related to the Ma’roof. In (7:199) we see Allah (swt) saying:


خُذِ الْعَفْوَ وَأْمُرْ بِالْعُرْفِ وَأَعْرِضْ عَنِ الْجَاهِلِينَ


Some of the translations of the word urf in the above verse


Sahih International: Take what is given freely, enjoin what is good, and turn away from the ignorant.


Yusuf Ali: Hold to forgiveness; command what is right; But turn away from the ignorant.


Ahmad Ali: enjoin what is justice


Daryabadi: enjoin ??


Maududi: enjoin equity


Pickhtall: Keep to forgiveness (O Muhammad), and enjoin kindness, and turn away from the ignorant.


Muhsin Khan

Show forgiveness, enjoin what is good, and turn away from the foolish (i.e. don't punish them).


It is being used to imply something that is good or virtuous.


Different meanings of Urf in books of tafseer


The books of tafseer give us a clue about how these translations came about. There are three or four meanings of urf


Meaning #1: Something that is good and commendable. Here good is restricted to something that is commanded by the shariah


Meaning #2 (based on linguistic meaning): This is close to the lexical meaning of Urf, i.e. what is known and accepted as a good common practice.


Meaning #3: Meaning is what is known to be important and necessary.


Best things that are good are the ones recommended by the shariah. If the shariah does not order them, then they fall out of the realm of good.


Understanding of Urf from the Quran


Quran uses Maroof to describe urf. The examples from the Quran make it clear that the concept of urf is something to be followed and understood based on the situation of society.


Evidence #1 for Urf from the Qur’an Surah Baqarah verse 233


http://quran.com/2/233


ۚ وَعَلَى الْمَوْلُودِ لَهُ رِزْقُهُنَّ وَكِسْوَتُهُنَّ بِالْمَعْرُوفِ ۚ لَا تُكَلَّفُ نَفْسٌ إِلَّا وُسْعَهَا ۚ لَا تُضَارَّ وَالِدَةٌ بِوَلَدِهَا وَلَا مَوْلُودٌ لَّهُ بِوَلَدِهِ ۚ وَعَلَى الْوَارِثِ مِثْلُ ذَٰلِكَ ۗ فَإِنْ أَرَادَا فِصَالًا عَن تَرَاضٍ مِّنْهُمَا وَتَشَاوُرٍ فَلَا جُنَاحَ عَلَيْهِمَا ۗ وَإِنْ أَرَدتُّمْ أَن تَسْتَرْضِعُوا أَوْلَادَكُمْ فَلَا جُنَاحَ عَلَيْكُمْ إِذَا سَلَّمْتُم مَّا آتَيْتُم بِالْمَعْرُوفِ ۗ وَاتَّقُوا اللَّهَ وَاعْلَمُوا أَنَّ اللَّهَ بِمَا تَعْمَلُونَ بَصِيرٌ

Sahih International

Mothers may breastfeed their children two complete years for whoever wishes to complete the nursing [period]. Upon the father is the mothers' provision and their clothing according to what is acceptable. No person is charged with more than his capacity. No mother should be harmed through her child, and no father through his child. And upon the [father's] heir is [a duty] like that [of the father]. And if they both desire weaning through mutual consent from both of them and consultation, there is no blame upon either of them. And if you wish to have your children nursed by a substitute, there is no blame upon you as long as you give payment according to what is acceptable. And fear Allah and know that Allah is Seeing of what you do.


Father is obliged to provide for the upkeep of the child bil maroof. What is the understanding of bil maroof? It is something that is good and commendable.


In the Muslim society, the sunnah must come first, but that is not the only necessary thing that is good and commendable. The way that is good and commendable changes over time. So bil maroof starts with what is mentioned in the Quran and changes according to the norms of the society. And this is the reason why we turn to bil maroof in the sunnah.


Evidence #2 for Urf from the Qur’an Surah Al Maeda verse 89


Allah swt uses bil maroof in similar sense, so does this evidence sufficient for the establishment of the qaeeda? Yes.


There is another concept in the Quran, where Allah swt refers to the common practice of the people in Surah Maeda verse 89.


لَا يُؤَاخِذُكُمُ اللَّهُ بِاللَّغْوِ فِي أَيْمَانِكُمْ وَلَٰكِن يُؤَاخِذُكُم بِمَا عَقَّدتُّمُ الْأَيْمَانَ ۖ فَكَفَّارَتُهُ إِطْعَامُ عَشَرَةِ مَسَاكِينَ مِنْ أَوْسَطِ مَا تُطْعِمُونَ أَهْلِيكُمْ أَوْ كِسْوَتُهُمْ أَوْ تَحْرِيرُ رَقَبَةٍ ۖ فَمَن لَّمْ يَجِدْ فَصِيَامُ ثَلَاثَةِ أَيَّامٍ ۚ ذَٰلِكَ كَفَّارَةُ أَيْمَانِكُمْ إِذَا حَلَفْتُمْ ۚ وَاحْفَظُوا أَيْمَانَكُمْ ۚ كَذَٰلِكَ يُبَيِّنُ اللَّهُ لَكُمْ آيَاتِهِ لَعَلَّكُمْ تَشْكُرُونَ

Sahih International

Allah will not impose blame upon you for what is meaningless in your oaths, but He will impose blame upon you for [breaking] what you intended of oaths. So its expiation is the feeding of ten needy people from the average of that which you feed your [own] families or clothing them or the freeing of a slave. But whoever cannot find [or afford it] - then a fast of three days [is required]. That is the expiation for oaths when you have sworn. But guard your oaths. Thus does Allah make clear to you His verses that you may be grateful.


In this verse, Allah swt is speaking about breaking of oaths. But if you break your oath, then the expiation is to feed 10 poor people and then says from what you feed a normal meal for your family.  


This verse tells us to turn to urf. It does not say that you have to give a specific quantity of dates, but it asks us to consider how we feed our family and use that as a benchmark when feeding 10 poor people.


Evidence #3 for Urf  from the Qur’an (Al Araf: 31)


Do not be extravagant or israaf. What is the meaning of extravagance?


يَا بَنِي آدَمَ خُذُوا زِينَتَكُمْ عِندَ كُلِّ مَسْجِدٍ وَكُلُوا وَاشْرَبُوا وَلَا تُسْرِفُوا ۚ إِنَّهُ لَا يُحِبُّ الْمُسْرِفِينَ

Sahih International

O children of Adam, take your adornment at every masjid, and eat and drink, but be not excessive. Indeed, He likes not those who commit excess.


Israaf is not what is beyond the necessary. Israaf has two levels to it: One is based on custom and the second is going beyond one’s means (this is at the personal level i.e. what one can afford). So one may not be living a very fancy life but still they are living beyond their means.


Maybe evidence #4 for Urf  from the Qur’an (Al Rad verse 38)


Al Alaiee (Shafie scholar) has written a book on qawaa'id al fiqhiyyah, he points to Surah al Rad verse 38 as the evidence for urf.


وَلَقَدْ أَرْسَلْنَا رُسُلًا مِّن قَبْلِكَ وَجَعَلْنَا لَهُمْ أَزْوَاجًا وَذُرِّيَّةً ۚ وَمَا كَانَ لِرَسُولٍ أَن يَأْتِيَ بِآيَةٍ إِلَّا بِإِذْنِ اللَّهِ ۗ لِكُلِّ أَجَلٍ كِتَابٌ

Sahih International

And We have already sent messengers before you and assigned to them wives and descendants. And it was not for a messenger to come with a sign except by permission of Allah . For every term is a decree.


What is the context of this verse?

According to Al Alaiee, some of the disbelievers were questioning whether the messengers can be humans. According to the scholar, this ayah answers that messengers before were not Angels but humans who had wives and children. So Al Alaiee’s point in using this verse for the Urf is not clear. Alhamdulilah, we have a lot of other evidence which clarifies the position of the Urf.  


Is this an example of a clever scholar who comes to a conclusion? It would seem so.


We now move to the evidence from the Sunnah for the qaedah.


Evidence #5 Misquoted Hadith: “Statement that is sometimes heard”


Sometimes the “statement that is sometimes heard” is quoted as a hadith, but the statement that “If the Muslims see something as good, then it is good with Allah, and if they see something as bad, then it is bad with Allah.” But it seems to be a statement of Abdullah bin Mas’ood, not a hadith.


If you take the statement as a whole, it becomes clear that the phrase here of “Al-Muslimoon” it might well be referring the sahaabah. What makes this is a confident interpretation is what the statement continues with. It says: “... Allah looked into the heart of Muhammad and found his heart to be the best of all human beings... and chose him because of his good heart over all other human beings ...   And then he looked at the hearts of the those after Muhammad and found the heart of the sahabah to have the best hearts....”


He says that Allah swt chose people with the best hearts and the people with the best hearts see what is good....


The hadith then continues ....... and ends with the statement quoted above.


Footnote: Is it permissible to abridge a hadith? It is permissible as long as abridgment doesn’t distort the meaning.


Conclusion about this evidence. This is quoted as evidence but it is not relevant since it is not the statement of the Prophet.


Footnote: Please ignore it, if you are confused about the above narration. It has been mentioned because some people bring it up with this topic and it is irrelevant since it applies only to Sahabah and not all the Muslims. Secondly it is only statement of a Sahabi and not a hadith as many people believe.


Evidence #6 Hadith of rebuilding the Kaabah


How is this hadith of not rebuilding the kaabah because the followers of Islam were new, is used as evidence for Urf?


http://www.sunnah.com/nasai/24#283


It was narrated from Aishah that the Messenger of Allah said:

"Don't you see that when your people (re)built the Kabah, they did not build it on all the foundations laid by Ibrahim, peace be upon him?" I said: "O Messenger of Allah, why do you not rebuild it on the foundation of Ihrahim, peace be upon him?" He said: "Were it not for the fact that your people have recently left disbelief (I would have done so)." Abdullah bin Umar said: "Aishah heard this from the Messenger of Allah, for I see that he would not touch the two corners facing Al-Hijr because the House not built on the foundations of Ihrahim, peace be upon him?" (Sahih)


أَخْبَرَنَا مُحَمَّدُ بْنُ سَلَمَةَ، وَالْحَارِثُ بْنُ مِسْكِينٍ، قِرَاءَةً عَلَيْهِ وَأَنَا أَسْمَعُ، عَنِ ابْنِ الْقَاسِمِ، قَالَ حَدَّثَنِي مَالِكٌ، عَنِ ابْنِ شِهَابٍ، عَنْ سَالِمِ بْنِ عَبْدِ اللَّهِ، أَنَّ عَبْدَ اللَّهِ بْنَ مُحَمَّدِ بْنِ أَبِي بَكْرٍ الصِّدِّيقِ، أَخْبَرَ عَبْدَ اللَّهِ بْنَ عُمَرَ، عَنْ عَائِشَةَ، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم قَالَ ‏"‏ أَلَمْ تَرَىْ أَنَّ قَوْمَكِ حِينَ بَنَوُا الْكَعْبَةَ اقْتَصَرُوا عَنْ قَوَاعِدِ إِبْرَاهِيمَ عَلَيْهِ السَّلاَمُ ‏"‏ ‏.‏ فَقُلْتُ يَا رَسُولَ اللَّهِ أَلاَ تَرُدُّهَا عَلَى قَوَاعِدِ إِبْرَاهِيمَ عَلَيْهِ السَّلاَمُ قَالَ ‏"‏ لَوْلاَ حِدْثَانُ قَوْمِكِ بِالْكُفْرِ ‏"‏ ‏.‏ فَقَالَ عَبْدُ اللَّهِ بْنُ عُمَرَ لَئِنْ كَانَتْ عَائِشَةُ سَمِعَتْ هَذَا مِنْ رَسُولِ اللَّهِ صلى الله عليه وسلم مَا أُرَى تَرْكَ اسْتِلاَمِ الرُّكْنَيْنِ اللَّذَيْنِ يَلِيَانِ الْحِجْرَ إِلاَّ أَنَّ الْبَيْتَ لَمْ يُتَمَّمْ عَلَى قَوَاعِدِ إِبْرَاهِيمَ عَلَيْهِ السَّلاَمُ ‏.‏


Al Baji said that Prophet (pbuh) showed sensitivities to the customs of the people provided it does not break the commands of the Shariah. Since it was not necessary to rebuild the Kaba so Prophet (pbuh) gave weight to the feelings/Urf of the people of Makkah.


We will discuss the tacit approval by the Prophet as another evidence later on. There are more evidences from the Sunnah which we will discuss it next time, Insha-allah.



2013-04-14 Class Notes


Evidences for Urf as a basis for Shariah ruling


Hadith: Prophet was approached by Hind wife of Abu Sufyan. She complained that Abu Sufyan was very stingy and not supporting her and his child properly. She asked the Prophet whether it would be okay for her to take money from her husband without his permission. The Prophet replied take as much as needed by the urf.


Narrated 'Aisha: Hind bint 'Utba came and said, "O Allah's Messenger! Abu Sufyan is a miser, so is it sinful of me to feed our children from his property?" Allah's Messenger said, "No, except if you take for your needs what is just and reasonable. "  (Bukhari Book #64, Hadith #272)


Here the Prophet is saying that she may take what is proper by the urf (common practice). When Bukhari collected this hadith, he put it under the category of urf.


Scholars talk about actions, statement, and taqreer of the Prophet. Taqreer means tacit approval. Because if there was something against the shariah, then it would be the responsibility of the Prophet to object to the infractions against the shariah.


Evidence that Prophet forbade Salam transactions that were allowed by the Urf of the people of Madinah


Suppose if you own a fruit orchard with some fruits on it. Now if you want to sell the produce in advance, there are prohibitions on selling based on an estimate of how large is your produce, because there is gharar involved with such a transaction which is prohibited by the Shariah. So Prophet (pbuh) forbade not to make such sales when the fruit is not ripe. It is starts to ripen then one can make such sale. So here a custom in Madinah was restricted by Prophet (pbuh).


Similarly Salam transactions are prohibited in the Shariah. A Salam transaction is a sale based on advanced payment and here there is some gharar. This was also Urf of people of Madinah. This Salam was not forbidden by Prophet (pbuh) but restricted it by requiring the measure, the weight and .......... .  


Either the weight or volume or type of the goods have to be restricted because you are promising the handover of goods sometime in the future, the shariah wants to remove as much risk due to vague estimates.


Evidences about Urf practices allowed or prohibited by the Prophet based on its relationship to the Shariah


Sometimes Prophet (pbuh) amplified and emphasized the Urf that people have like generosity of the Arabs. Some he (pbuh) accepted, some he (pbuh) modified and some were rejected completely (like jahiliyyah marriages, and ribawi contracts). The lineage was restricted to the bed on which child is born rather than qiyafa (i.e. looking at child’s feet and figuring out the lineage and the word of the expert was considered the final word).


There were some customs that will be accepted by the Shariah, some are rejected by the Shariah, and some that need to be altered but not completely rejected by the Shariah.


Categorization of Adaat (Habits)


The famous scholar Shatabi has divided Urf into different categories.


Category #1: Adaat (habits) that are either shariah related

As an example, a custom that is shariah related is that related to the awrah. Here the rulings of Shariah will be above the Urf.


Category #2: Al Adaat Ghayr al Shariah, where Shariah does not say anything about.

Here the need for food, length of menses etc are some examples. Al Adaat that are not related to the shariah are known as natural. This is broken into two subcategories....


Category #2-1 The custom which do not change from culture to culture


Category #2-2 The custom which change over time and from culture to culture.

For example modes of transportation, etc.



Categorization of Urf


Scholars also divide urf or customs further into different categories.


Category #1: Al Urf al Qawli (Customs of the people related to their speech)

In some people’s usage of the language, the word might have a more general meaning but their understanding is much more restrictive.


For example Al Daaba is any animal who crawls on the earth however in the dialect of the Quraysh it means domesticated animals (horses, cattle).


Another example, the meaning of Walad is son or daughter but today in many usages it is used with respect to son. One implication is that if in Quran it uses the word Walad for the purposes of inheritance of wealth then Walad mean both son and daughter and will not be confined only to sons.  


If someone makes an oath and says that I will sell you all of my daaba, what does he mean? Only the domesticated animals or all of the creatures that he owns. Here the urf meaning would take precedence over the linguistic meaning.


Category #2: Al Urf al Amali (Customs of the people related to their practices)


An example of al urf al amali is how contracts are concluded today. Today the handshaking is not enough but the signature is what is important. On the buying part, today the Ijab and Qabool is not done explicitly. Today you put stuff on the counter and they scan items and one’s quietness is considered approval.


Suppose I show you the car in MCA parking lot and I buy the car for some amount and delivery is next day. The next morning I come to get the car and tires are removed. From Urf we know that seller cannot do this since tires are understood to be sold with the car. Similarly regarding the college degrees and the understanding who is fit for what job is based on Urf.


Urf of selling a house in Malaysia or in the US would be different. Here in the US you sell the house bereft of any furniture, but keep the fridge, oven, sink etc. In Malaysia the house would be bare bones, etc.


Category #3: Al Urf al Aam (Customs that are widespread)


These are Urf which are universal or general what everybody does and everybody knows. These are Urf according to some scholars is what is established in the Muslim Ummah since the time of Prophet (pbuh) however this is a bit strange definition, since it is too restricted of a definition.


Some scholars talk about bilaad al Islamiyah (whether it has to be an Islamic community), but that is not required from the fiqh perspective.


Some of the earlier examples of urf al amali could be understood as urf al aam, such as urf related to selling cars or houses.


If something is not widespread then it becomes problem. In some culture when you say I want to buy this flower, then it means you want perfume made out of this flower while in other cultures it can mean the flower.


Category #4: Al Urf al Khaas (Customs that are more specific)


These urf are more specific to a category of a group of people with certain professions or community. Engineers might have certain habits related to the work they do, or economists have some peculiarities. Here the urf is restricted to a small community only.


But when a housing contractor deals with his suppliers, he can sue them based on the urf of that group, but he cannot use the understanding with the public or the masses.



Category #5: Urf al Sahih (Urf that does not contradict any principles of the Shariah)


Another categorization of Urf is known as Urf al Sahih. Any Urf which does not contradict any principles of Shariah even if there is nothing specific about it in Shariah.


For example, the traffic lights today are considered Urf al Sahih since there is nothing that contradicts the shariah. But if you do not obey the traffic lights, then you could commit harm and kill somebody, and you would be held responsible for violating the traffic lights. Since this is good from the Maslaha point of view in Shariah then we are going to call this Urf al Sahih and hence the Qaedah ‘Al aadat ul Muhakamma’ is applied here.


Category #6: Urf al Faasid (Urf that contradicts any principles of the Shariah)


Opposite to this category is Urf al Faasid (Urf that is considered contradicting the Shariah. Hanafi add a third one which is Urf al Batil (i.e. invalid completely). While Urf al Fasid to Hanafi is something which stands wrong but can be corrected by changing something which will make it Urf al Sahih. The non-Hanafi consider both Urf al Batil and Urf al Faasid of Hanafi as Urf al Faasid. Anything which breaks the rules of Shariah which includes use of bikini in public beaches (which is also going in the Muslim world today, unfortunately).


Any urf that is from this category has no weight in the Shariah and should be removed.



Urf and its relationship to various Madhabs


In every madhab, there is a use of the word Urf. In some madhabs it is not used in the legal sense but in many madhabs it became legal term much later.



Urf and Sunnah


Abu Yusuf, a student of Abu Hanifa, disagrees with his teacher and majority of the scholars in the following example. The reasoning that he uses is very interesting. It is a practice that existed during the time of the Prophet and he argues that this practice was specific to the Urf of the people during that time. This is a very tricky issue.


Suppose there is a practice of the people of Madinah. The prophet approved this practice either directly or indirectly. Let us say he makes a statement about the practice and approves of it. Now does this practice get elevated from just an urf to become a sunnah of the Prophet?


In general urf can change but urf does not change. The question we have to ask is whether the statement of the Prophet approves of the practice or does it raise it to the level of sunnah. Alhamdulillah there are not that many statements of the Prophet that fall into this category, there are only handful of these cases.


An example is that we have certain ribawi items which is gold, silver etc. which can only be traded hand to hand and on the spot. The restrictions on hand to hand transactions was restricted to a smaller subset of commodities. The Dhahiris say that these restricted set of commodities remain and do not change. Abu Yusuf said that this set can change over period of time since the original set was determined by Urf.


Abu Yusuf says that we stick to the sunnah of the Prophet to the original set of restricted commodities, we should stick to them and only deal with hand to hand transactions for them. However he says that if one of the commodities from that set is no longer an important commodity such as let us say silver, then it can fall off from this set and then it can be treated like transactions of camels. But this could be a problematic approach.


This is one of the most difficult aspects of dealing with urf which occurred during the lifetime of the Prophet, because it could be the Sunnah of the Prophet. However our scholars dealt with this issue and clarified to us what is the Sunnah and what is the urf of the people, so we do not have to be too much concerned by it.


2013-04-21 Class Notes


Just a reminder that we are discussing the Qaedah, that urf must be enforced. When many scholars discuss any Qawa’id they look for two things, the Arkaan and Shuroot of the Qaedah


Arkaan - Fundamental Element of the Qaeda


They are the Fundamental elements of the legal ruling.


It is an essential component -- the act cannot exist without it. Example a marriage is invalid if it fails to meet this component. For example, in any contract, the arkaan are offers and acceptance.


Shuroot - Preconditions of the Qaeda


Aada should not contradict Quran and Sunnah. So how does this apply in the case of this qa’edah?


Classroom discussion about the differences between Shuroot and Arkaan, when does something fall into one category versus  the other?


Answer [Footnote: What’s the difference between a condition and essential component? There are differences of opinion. E.g. are witnesses a shart or a rukn in marriage?

Are there differences between Rukn and Shart? Yes. If a rukn didn’t take place then it is as if it didn’t happen. But if a shart is missing, then it depends what they do.]


Arkaan of this Qa’edah


#1 The urf must be a practice regularly performed by a group of people.


#2 The urf must be binding.


So if it is a personal practice of an individual, then it is not considered to be an urf.


Shuroot of the Qa’edah


#1 It must be consistently or uniformly applied. It is implemented every time, or almost every time.


#2 It must be known to people at a certain time. E.g. there may be in the books of fiqh some practices that were common in their time, but not currently common.


#3 Also in some cases, there might be two varying customs. E.g. In some cultures the expectation is that  wife lives with husband in her own dwelling that is not shared by anybody else (in-laws or other wives), in some other cultures the expectation is that she lives with the husband’s family. This is known as ‘urf mushtarak. عرف مشترك.


Example of Shuroot


Most of the fiqh books discuss this problem. In many cultures before marriage father gives jewellery to the daughter. In some culture this jewellery is loan from father to daughter and in some cultures it is gift and in some cultures in some villages it is loan and in others it is gift. So in case of a dispute between daughter and the father (whether it was gift or loan) how is the issue to be reconciled? This is case of ‘urf mushtarak and the judge will decide which aspect is to be applied.


Urf is expected to change as the culture changes, it evolves.....


Universality


What does it mean for it to be universal? One opinion amongst the hanafis that it has to be known and applied in all of the Islamic lands. Does universal mean:


“Universal”

a) All Muslim lands

b) All of a land


“Particular” or khass

c) certain subsets


The Hanafi view is that a) is correct so that they can use it for تخصيص النصوص -- particularizing the texts of the Qur’an and Sunnah.


Example: the word طعام usually means food, but in the hijaaz it mean wheat/barley. So then can we particularize the Quran/Sunnah in this case? The Hanafi opinion is no, but most scholars disagree not with this for takhsees of this principle, but with the fact that this is a requirement for all applications of this rule.


In order to make takhsees for the text, it has to be amm (general).


What happens if the urf is khass, specific to camel traders, etc?

The Hanafis have problem with urf that is khass. The Shafies say that it can be applied where the conditions apply.


Hanafis and Shafies both accept the concept of urf, with the minor differences discussed above.


This concludes the discussion of the conditions related to the nature of the Qaedah, whether it is aam or khass, etc.


Conditions for application of the Qaedah


#1 The urf can be overruled by any explicit specification of the parties involved.


The urf is a daleel (evidence), but it is not a strong evidence. If somebody has an explicit evidence, then it overrides the urf.  


For example, if the wife stipulates in the marriage contract that she wants to stay in her own residence not shared by any of the in-laws or other members of the family. Then this explicit contract overrules the urf of the marriage contract.


#2 It must have existed at the time of any specific action/deed.


Let us say that the expectations of new couples living changed over period of time, earlier it was in a joint household but now it is separate housing. Can a woman who was married 40 years ago with the urf of joint household, but now the urf has changed, can she demand a separate household?


This condition says that you cannot apply urf retroactively.


The convention in the industry changes over a period of time, for the electrical systems or other systems, you cannot retroactively say that the contractor should update the wiring based on today’s standards.


#3 The ‘urf must be related to something in which the ‘urf has some authority.


The urf cannot be in the matters of ‘ibaadaat or ‘aqeedah or ghaib, since urf has no authority in such matters.


#4 The ‘urf can not contradict anything stronger than it.


If we have a text from Quran and Sunnah, then the urf cannot override it. We know that urf can be baatil (falsehood). The urf of the Western culture is to wear a bikini at the beach or even more extremes, can you say this urf has any basis? No, this urf is corrupt and invalid, since it contradicts Quran and Sunnah.


When an urf contradicts Quran and Sunnah, there are different ways in which it contradicts Quran and Sunnah.


Urf and Quran/ Sunnah might be mutually exclusive, in this case we submit to the Quran and Sunnah, and ignore the urf.


Can Urf be used to make takhsees (particularization) of the Quran and Sunnah?


Suppose Urf only partially contradicts the Quran and Sunnah. It contradicts only in some specified areas, what should you do then? Can you make takhsees of the general text of the Quran or Sunnah based on the urf?


In general it is not allowed to sell something that you do not possess. When the Prophet migrated to Madinah, he found out that the people of Madinah used to deal in Baya al Salaam (forward contracts). The Prophet allowed these types of contracts but placed restrictions on it, such as the weight, quantity, time of the forward contract has to be specified.


In general is gharar (risk) haraam? But we know that every business transaction has some amount of risk involved, excess risk is forbidden by the shariah.


When you go to the Public baths you pay for its usage, but there are no restrictions on the amount of time, amount of water, number of towels, etc. Is this type of gharar by the owners of the business acceptable?


Similar gharar exists in all you can eat buffet for the owner of the business. The amount of food consumed by an individual varies, there are different upper bounds of consumption.


So should these types of gharar that are allowed by the urf be allowed?


2013-04-28 Class Notes


We are discussing the conditions for the application of the Urf. And we will continue with this topic.


Can ‘urf contradict a stronger source?


There are two forms of contradiction: the urf and what the Quran & Sunnah say; but the second is one where it is more complicated. So Oktoberfest even though it is Urf of the people of Germany would not be allowed, since it clearly contradicts the prohibition of alcohol.


Urf cannot contradict a stronger text, it is not by itself a source of law. However scholars divided the issue into different topics, if you have a general text, you can particularize it by Urf.


Will Hanafis accept the takshees (particularization) of text by Urf?


Sh Jamaal asked the above question, because of the way Hanafis approach the understanding of the general text in a different manner compared to all of the other madhabs. This is an important question to ask in order to understand the topic of takhsees by Urf.


Consider the statement, “In general, Muslims must pray five times a day.”  Or consider the statement, “My students are good students”, what is the truth value of this statement? Does it mean every single student is a good student?


يَا أَيُّهَا الَّذِينَ آمَنُوا كُتِبَ عَلَيْكُمُ الصِّيَامُ كَمَا كُتِبَ عَلَى الَّذِينَ مِن قَبْلِكُمْ لَعَلَّكُمْ تَتَّقُونَ

Sahih International (2:183)

O you who have believed, decreed upon you is fasting as it was decreed upon those before you that you may become righteous -


This ayah above is general (even though the very next ayah starts to give the exceptions).


When you make a general statement, it means that the statement applies to every member of the set. But in speech, the general statement does not apply to every member of the set, there can be many exceptions. There are subsets that are/can be exceptions to the general statement.


The Malikis, Hanbalis, and Shafi'is say that a general statement is dhanni. They realize that the general statement is open to exceptions or particularization.


The Hanafis say that statements are Qat’ee -- that a statement is definitive. One major implication for the Hanafi position is that if you are going to particularize a general statement, then you need a Qat’ee evidence to support it. This is different to other three schools, who would accept for a Thannee evidence to provide a particularization.


Hence, unless you consider the ‘urf to be definitive, then it can not particularize the ruling in the Hanafi madhab.


Categorization of Urf


The scholars divide the Urf into two categories: Urf al Qawli (عرف القولي or Urf of statement) and Urf al ‘Amali (العرف العملي) in order to help us understand its implications with respect to the understanding of the text of Quran and Sunnah.


Urf al Qawli (عرف القولي or Urf of statement)


What was the understanding of the word at the time of the revelation of text. Since a word can have many different perspectives such as the Shariah, Conventional, and Lexical perspectives (Haqeeqa).


There are things now as Shari’ah views (الحقيقة الشرعيّة)


For example, the word Salaat in language means du’a. But in Shariah the meaning of the word salat is actions from Sunnah of Prophet (pbuh) from takbeer to the salam at the end of the prayers. So here the word Salat is what we call is the Al Haqiqa al Shariah.


However, a second form is by convention -- الحقيقة العرفيّة. An example of this is the “ad dhaba”. In general it means anything that crawls. But by convention, it means a domesticated animal.


And the final meaning of a word is it’s lexical meaning -- الحقيقة اللغويّة.


So when you analyze the text of the Quran and Sunnah, what understanding of the word would you use?


The Hanafis have a tendency to emphasize Haqeeqa al Lughuwiyyah over other meanings of the word. This is strange, and it occurred later in the Hanafi school. As an example when they discuss the rukuh and sujood they emphasize the lexical meaning as compared to other meanings of the word so if you tell them that one has to have pause or tranquility in bowing down or prostration then they will say that it is not in the Lughwi meaning so it is not important.


Scenario: Urf from the time of the revelation


Footnote: In fiqh we are concerned with both with what the text says and what is the common speech.


يَا أَيُّهَا الَّذِينَ آمَنُوا لَا تَقْرَبُوا الصَّلَاةَ وَأَنتُمْ سُكَارَىٰ حَتَّىٰ تَعْلَمُوا مَا تَقُولُونَ وَلَا جُنُبًا إِلَّا عَابِرِي سَبِيلٍ حَتَّىٰ تَغْتَسِلُوا ۚ وَإِن كُنتُم مَّرْضَىٰ أَوْ عَلَىٰ سَفَرٍ أَوْ جَاءَ أَحَدٌ مِّنكُم مِّنَ الْغَائِطِ أَوْ لَامَسْتُمُ النِّسَاءَ فَلَمْ تَجِدُوا مَاءً فَتَيَمَّمُوا صَعِيدًا طَيِّبًا فَامْسَحُوا بِوُجُوهِكُمْ وَأَيْدِيكُمْ ۗ إِنَّ اللَّهَ كَانَ عَفُوًّا غَفُورًا


Sahih International (4:43)

O you who have believed, do not approach prayer while you are intoxicated until you know what you are saying or in a state of janabah, except those passing through [a place of prayer], until you have washed [your whole body]. And if you are ill or on a journey or one of you comes from the place of relieving himself or you have contacted women and find no water, then seek clean earth and wipe over your faces and your hands [with it]. Indeed, Allah is ever Pardoning and Forgiving.


So the word Al Ghaa’it in the time of Prophet (pbuh) meant anything that came out of the body part (so even worms if they were in stomach and came out of the body then it was considered Al Ghaa’it linguistically, but not in the ‘urfi sense). After the revelation it started to mean the relieving of the self.


So this scenario is not problematic, since the urf existed at the time of the revelation.


Scenario: What happens if the Urf came after the revelation?


Suppose somebody made an oath to Allah swt that he will not eat meat? Suppose this person ate fish after making the oath. Did he break his oath?


Discussion about the various understandings or perspectives of the word “Lahm”, what does it mean?


وَهُوَ الَّذِي سَخَّرَ الْبَحْرَ لِتَأْكُلُوا مِنْهُ لَحْمًا طَرِيًّا وَتَسْتَخْرِجُوا مِنْهُ حِلْيَةً تَلْبَسُونَهَا وَتَرَى الْفُلْكَ مَوَاخِرَ فِيهِ وَلِتَبْتَغُوا مِن فَضْلِهِ وَلَعَلَّكُمْ تَشْكُرُونَ

Sahih International

And it is He who subjected the sea for you to eat from it tender meat and to extract from it ornaments which you wear. And you see the ships plowing through it, and [He subjected it] that you may seek of His bounty; and perhaps you will be grateful.


This is an example of where the Urf came later than the revelation and the Urf is defining the practice of the people. So nowadays lahm would mean red meat.


Suppose you made an oath that you would not sit on a firash. And suppose you sat on the ground, did you break your oath?


Allah swt created earth as a place of rest. Because some super dhahiri could say that by sitting on the ground, you broke your oath.


The important point is that the Urf defines the understanding of the words and it could occur after the revelation. And the scholars say that Urf could specify the practice of the word.


Footnote: Those who say that text can be restricted by Urf al Qawli are Hanafis, Malikis, and some of the Mutazilites. The Shafi’is still have questions about it and still do not accept it.


Urf al ‘Amali (العرف العملي)


This is the culture of the people or a practice of the people.


‘Urf amali is accepted by the majority of the Hanafis as well as the Malikis, as well as Ahmad Zarqa. And those who say it is not allowed are the majority of the Shafi’is and the Hanbalis, as well as Al-Qarafi from the Maliki school.


Example of application of Urf al ‘Amali about breastfeeding based on Urf al ‘Amali



وَالْوَالِدَاتُ يُرْضِعْنَ أَوْلَادَهُنَّ حَوْلَيْنِ كَامِلَيْنِ ۖ


[2:233] Mothers may breastfeed their children two complete years for whoever wishes to complete the nursing [period].


According to Imam Malik this verse applies to those who have the culture of the breast-feeding their own kids. It does not apply to those women who do not have the culture of breast-feeding. So question for Imam Malik is that is this the Urf which started after Prophet (pbuh)?


Discussion about the culture of breast-feeding over the ages and during different cultures. If you take this verse to mean breast-feeding as understood during the time of the Prophet, then it becomes an obligation for you to do so, however if you understand it as a cultural practice then you are free to follow it as defined by the culture, known as Urf al Amali or culture of the people.


Example of takhsees of hadith based on Urf al ‘Amali


Hadith of the Prophet (SAWS): The burden of proof is on the plaintiff, and the defendant can make an oath to be freed.


This is to be restricted by ‘urf ‘amali. Example: someone lives in house for 20 years, and is dealing with it like an owner. After 20 years, someone claims evidence that this house belongs to him. Then this person’s evidence will not be accepted since there is the question of why he hid this evidence for so long.


So here we are particularizing the hadith and saying that this specific set of cases are excluded from application of the above hadith.


Discussion of squatters who take over the possession of a property.


Example of takhsees of hadith about giving equal gifts to your children


Hadith: Prophet says “Have fear of Allah and be just to your children and give them gifts that are equal”


A hadith closer in wording is below and is narrated An-Nu'man ibn Bashir:

The Prophet (pbuh) said: Act equally between your children; Act equally between your sons.


حَدَّثَنَا سُلَيْمَانُ بْنُ حَرْبٍ، حَدَّثَنَا حَمَّادٌ، عَنْ حَاجِبِ بْنِ الْمُفَضَّلِ بْنِ الْمُهَلَّبِ، عَنْ أَبِيهِ، قَالَ سَمِعْتُ النُّعْمَانَ بْنَ بَشِيرٍ، يَقُولُ قَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم ‏ "‏ اعْدِلُوا بَيْنَ أَوْلاَدِكُمْ اعْدِلُوا بَيْنَ أَبْنَائِكُمْ ‏"‏ ‏.‏


Edit: Graded Sahih by Al-Albani http://www.sunnah.com/abudawud/24#129


Hanafis believe that it is permissible to give one of one’s children’s needs, study of knowledge, maturity etc. They say that not all children might be at the same level of wealth or some of your children might not be pious etc


So would you restrict the meaning of this hadith based on the above evidence of the Hanafis?


There is another hadith that says that it should be equal (it doesn’t just say ‘adl’).


Is this a problematic takhsees or is it valid?


2013-05-05 Class Notes


Sources of ‘Urf


We are discussing takhsees of hadith by urf. However we have not yet discussed the source of the urf, since some of the customs and practices might be rooted in different sources.


Where do some of these customs come from?


Source #1: Matters related to natural occurrences


And then after we discuss the sources, we can determine whether takhsees by urf makes sense or not. Some of the sources are from nature or forced upon people.


The age of bulugh or puberty changes due to the environmental conditions, sometimes due to what we eat or medicines that we ingest, and the trend is that some of the aspects of puberty are arising earlier and some are not.


So these are no brainers and it will determine how we understand the various texts related to such matters.


Source #2: Matters that are related to need


But there are other customs related to need (حاجات). The way we take possession of things or how we pay for things is different compared to what was there before and these urf are related to hajjat or need. And should we use these as guidelines for making takhsees.


However since in the matters of transaction, they were not how they were conducted during the time of the Prophet, so there might be need but we have to be extremely careful.


Also this goes over into umoom al balwa (عموم البوة). It has become so difficult to do cash transactions for monthly charges such as your utility bills, you have to go out of your way to complete this transaction.


So if someone were to make a ruling on the basis of that, then maybe they would have some basis.


Source #3: Matters that are determined by royal or government decree


Sometimes customs are based on customs (e.g. government decree) -- some of them have maslahah (societal benefit) behind them such as adherence to traffic laws and regulations.


Here the source of the urf is from the government and that is the reason why we are following them, and this obedience is conditional to the obedience to Allah swt and the Prophet.


Examples of unacceptable urf by government decree


But sometimes this can go awry as shown by the following example. In 362 Hijri the Fatimid Shi’ah ruler of Egypt, they started celebrating the Birthday of the Prophet (SAWS). Clearly this type of ‘urf is clearly unacceptable, so we cannot make takhsees based on such urf. Some of the other bid’ahs also come from Egypt (e.g. birth of Hussein or Sayyidah Zainab).


Change of calendar from Shamsi (Islamic solar calendar) to Miladi, is this acceptable takhsees?


The farmers always used a different calendar for their farming needs but recently, governments have switched to a Western miladi based calendar. So this is another example of urf by government decree.


So you can see that within the source of govt decree we discussed example such as traffic laws that should be followed to the celebration of the birthday of the Prophet which is not acceptable to matters that need to be studied in depth in order to determine whether they are acceptable or not such as the decree of western calendar.


Source #4: Imitation of others including the role of our forefathers


Footnote: Taking technology is by default acceptable as long as it does not cause harm.


The most dangerous aspect of this kind of custom or practice and which Allah swt shows is blameworthy is when the custom goes against the decree of Allah swt.


Quran Surah ... :    We have never sent a warner to the people, except the people who said that we will follow our forefathers.


There are acceptable examples of following the customs of our forefathers, but is it acceptable to have variation in different areas? Yes it is possible.


An example is the allowable gharar or risk about the public bathhouses, customers would pay a fixed amount without restricting on how much water is consumed. So this type of gharar is allowable based upon takhsees based or urf.


Other examples: Rental agreements have different arrangements in different places such as  month-to-month or yearly payments in advance, types of amenities included in the rental agreement, etc etc. All of these different aspects are dictated by the norms of the society.


You can argue that paying annual payment might be too much gharar, but if that is the urf of the place and people don’t have issues with it and if there is nothing clearly against such a practice from the Quran and Sunnah, then these types of gharar are allowed.


Urf that contradicts ijtihaad


There are a number of different cases might be involved:


1. Ijtihaad that is based on clearly deriving something from the Qur’an and Sunnah and based on that that the act is haram, then in that case, the ijtihaad takes precedence over the ‘urf. Example: man getting payment on marriage, even if that is the ‘urf, then it doesn’t matter.


2. If an ijtihaad is made on the basis of ‘urf and then that ijtihaad contradicts the ‘urf of another place or time, then in that case, the ‘urf is going to take precedence over the ‘urf or ijtihaad.


The topic about ijtihaad based on urf is the something that Al-Qarafi wrote in his book “Al-Ihkaam fee tamyeez al al-ahkaam” (الإحكام في تمييز الأحكام), and it discusses the proper methodology for distinguishing fatwaas from judgements. It is a very interesting book. Sherman Jackson’s phd thesis is about this book.


Rulings based upon Urf should be updated as the Urf evolves


Al-Qarafi says that anybody who makes a ruling based on custom, and if those customs have changed, then he is going against the consensus and exhibiting ignorance. This principle which is well established, and it guides us on how to update rulings which are based on urf. The modernists are very happy to quote this principle.


Ibn Al Qayyim says in his book, I’laam al-muwaqqieen an rabb il aalameen (إعلام الموقعين عن رب العالمين)  about this topic. In a section of the book says it is a very important question in fiqh and those who misunderstand it have gone astray. If someone gives a fatwa for the people based on the needs of the people based on the books against the actions of the people has made a great mistake. He says the harm of a doctor who treats all his patients the same way regardless of their situation.


Examples of rulings based upon ijtihaad of Urf


As an example of acceptable ijtihaad based on urf, the level of nafaqah or financial support provided by the husband to his wife, is clearly based on the urf. As urf changes the level of support changes.


How about the definition of adalah for giving witnesses, should that change based on the urf? What would be our criteria for taking evidence from witnesses, should it change due to time?


Allah swt says in the Quran that witnesses should be adalah or just. How would we define the basis for a just witness?


Imam Ahmad said that if a person does not pray Witr regularly, then his witness is deemed deficient because he does not have the right amount of ‘adaalah. You can find similar statements from that period.


The question that we are asking, how do we determine a person’s ‘adaalah, now it might be a person who prays regularly in the masjid or sometimes prays in the masjid. So this definition of the adalah changes over period of time.


Conditions of ‘Adaalah


So most scholars say that the quality of ‘adaalah as being beyond being a Muslim and doesn’t give us any reason for us to doubt him:


1) His deen must be in good shape. He must avoid haram, doesn’t commit major sins, he doesn’t repeatedly do haraam things.

2) He must be of good character and unwilling to do inappropriate things in public. E.g. fuqaha of the east used to think that someone who doesn’t cover their head as unacceptable, but in Andalus, it was the opposite.


Footnote: Libyans used to get their Friday Khutbahs from Egypt, some of the khutbahs would have references to the local people for example to avoid visiting somebody’s garden, so these would of course not make sense to the Libyan audience.


Homework: Think about how the times for the salaat are established (eg for the athan).


2013-05-12 Class Notes


We are discussing the conditions when urf contradicts text, we mentioned different conditions.


Urf that contradicts Qiyas (Analogy)


What happens if urf contradicts analogy or qiyas? So what if you have a case where qiyas gives one opinion but ‘urf gives some contradictory opinion?


Example where Urf does not contradict qiyas: Intoxicants are haraam


Text tells us that khamr is haraam. And we determine that the illa for this ruling is that it is illegal due to intoxicant nature. By qiyas we determine that any intoxicant is haraam. And now we are in Kerala where toddy a fermented coconut drink is consumed. So should urf take precedence and allow toddy to be consumed? In this case, because it is clear what the ‘illah is, then we can say coconut totty is haram, even if it the ‘urf.


Example where Urf contradicts qiyas: Rulings about animal excrements


First of all are the excrements pure? There are some madhabs that consider chicken manure to be impure. The excrements of pigeon are there some opinion about it? In this case the urf contradicts qiyas.


Some madhabs argue that pigeon manure is pure based on the reasoning that in the past the pigeon manure was never cleared off from the premises of the haram sharif. And hence they consider it to be not impure. We can see other madhabs that do not give weight to this contradiction that animal manure is pure.


Conclusion:

Urf cannot override takhsees, ijtihaad and qiyas. So what is left for Urf to override?


Flexibility of Sharia


The shari’ah does not always give us fixed and defined matters, but in many cases the shari’ah has left the determination of such things to the time and place.


Examples of flexibility of Sharia:


Example #1: Menstrual Blood Contamination


How much amount of Menstrual blood contamination is allowed by the Shariah? What is a small amount to be overlooked from menstrual blood? Answers to this question is based on the urf of the society, we have to answer the following questions about the social conditions of the community


This differs based on the society -- the ability to wash, the types of the garments, amount of clothes they possessed, etc. In many books of fiqh -- a small amount of blood is to be overlooked with respect to salaat.


Based on the narration of Aa’ishah where she said: we used to have one garment and sometimes menstrual blood would be on it -- cleaning with saliva and then scratching it off.


This sets the principle that a portion can be overlooked -- this is going to be determined by ‘urf as there is no text telling us how much.


So what is the basis or principle of the ruling, is it that you tried to remove it and it is still left, or is it the number of clean garments in your possession?


Does Urf determine how many steps you take to get rid of impurity? Or is it the amount of impurity is overlooked and not the steps or how many clothes in your possession?


According to Sh Jamaal the Urf determines how many steps you take to get rid of impurity and not the amount of impurity.


Footnote: Do washing machines always get rid of impurities? Is this still true?


So you should try to get rid of the impurity based on the Urf of the society and not the amount of negligible impurity allowed that is determined by the Urf of the society.


Edit: In our society we possess many clothes and have access to water very easily barring any other special circumstances. If you are at work then this is a special circumstance since you do not have access to clean clothes?????


Example #2: When is your prayer considered invalid if you make “too many movements”


In prayers, if you make too many movements then your salaat is considered invalid. In Shafi madhab it is restricted to three extra movements, in some other madhabs say it is based on Urf. So the first question is what do they mean by Urf?


In some societies if you move little bit, they considered it to be valid. But if you move too much then it is considered invalid. You should always mention the semblance of being in Salaat and avoid unnecessary movements.


We are not considering actions that you are forced to do, in response to sneezing during Salaat. The Prophet did not make more than three extra movements during his salaah.


Footnote: The worse thing is that a thought comes to your mind and you want to remember it later, are you allowed to make a note of it, during the salaah? This example was from ibn Uthaymeen and he said yes.


Are people from some culture more fidgety than people from some other cultures? For example, people from Malaysia as compared to some other cultures (E.g. the USA).


Classroom discussion:

Maybe my level of Imaan is more directly related to how many unnecessary movements I make in the salaah. I have a hard time distinguishing between what is necessary movement and what is unnecessary movement, such as burps etc.


The basic ruling is that you should not move too much and if you move too much then your salaat is invalid. So ask yourself the question, that if you ever are in the case where


Example #3: Zakaat on excess Jewelry based on Urf  


One of the opinions is that a woman is allowed to have as much jewelry as is customary and if she wears more than customary then she has to pay zakaat on it.


There are other opinions that are on the two extremes, one says that there is no zakaat at all on jewelry and the other bookend is that you have to pay zakaat on all of your jewelry.


We are discussing the middle opinion that you pay zakaat on what is considered excess jewelry above what is considered normal by the Urf of the society that you reside in.


Example #4: What staple items are to be considered zakaat-able for Zakat ul Fitr


According to some scholars, it is to be restricted to items mentioned in the hadith, which includes dates, raisins, wheat, barley and aqat. Other scholars say it is to be given is the staple foods of the area, and those will change based on the ‘urf.


Stronger opinion is that it depends on ‘urf.


Example #5: Distance for traveling based on language and ‘Urf


In each madhab, they have come up with specific distances for traveling stated in miles. However, one of the well-known opinions is that it depends on language and ‘urf. Eg. if the person went out and someone were to ask them where were you that day and he would say “I was traveling” then it is traveling.


Now it is much easier for us to travel and this is the reason for this opinion. This is ibn Taymiyyah’s view, even though the modes of transportation during his time and the time of the Prophet remained the same.


The important point is that there is none of this that is based on the Quran & Sunnah that is explicitly defines what is considered to be travel. Most of the rulings are based on the conditions derived from the example of the Prophet. Hence all of their efforts are based on derivations. That is why it can fall under the category of something that is determined by ‘urf.


Example #6: Conditions for being able to go to hajj


Consider the specifications for when hajj becomes obligatory upon you would include visas. Means to get there might also change.


Do we walk as much as the earlier people used to walk? There are now quotas for different countries. So there is Urf involved in determining the conditions for being able to go to Hajj.


Example #7: Buying and selling


Conditions for completing a transaction is based on Urf. What is to be included in the sale is also based on the Urf. For example, if somebody sells you a car and when you take possession of it, you find out the seller has stripped out tyres and other essential parts of the car, then you are free to consider it to be invalid sale.


Or return policy for goods. Somebody commits fraud when returning an item that was purchased. What constitutes fraud also seems to be based on time and place.


Conclusions


So even if ‘urf is removed because it can’t override Qur’an/Sunnah, it can’t do takhsees or or override qiyas. Even so, it is still very worthwhile and useful in many different contexts, because the Shariah is deliberately broad.


Q&A

None of the examples that show how urf contradicts qiyas, prove that it does indeed does so. There are shortcomings in those examples and we concluded that indeed urf does not override qiyas.


2013-05-19 Class Notes


We are discussing the extent to which Urf plays a role in different parts of fiqh, but we are barely touching the tip of the iceberg. There is a book by .... which goes in detailed discussion about the role of Urf in different parts of fiqh. We will continue this discussion by studying some examples.


What parts of marriage are affected by ‘urf?


Classroom discussion about some of the aspects of marriage that are touched by Urf are as follows:


#1 Nafaqah: The amount of financial support paid by the husband to his wife.

#2 The actual wordings of the acceptance of the offer of marriage (Some madhabs such as Shafi mandate that the offer and acceptance has to be in Arabic???)


#3 Mahr - The quantity of mahr is determined by Urf. If there are some issues about the quantity of Mahr between the two parties, and the wife complains about it, then the ruling is based entirely on the women who are similar to her social ranking etc. Footnote: I wouldn’t want to be the judge who has to determine the social equivalent of the woman etc


#4 The Walimah -- what constitutes israaf for the walimah; and the minimum of what should be presented at the walimah. It could be as less as one date or it could be a sheep, as we know from the narrations from the various sahabah. The case of one date was for a sahabah who was very poor. If you could afford more and it is not a hardship, but you offer just one date, have you committed a sin? If you fulfill an act even if it is not waajib, you should fulfill it in a very good manner.


#5 Kafa’ah: Woman has the right to be married to a suitable husband. If her wali gets her married to a husband that is not suitable, then she has the right to not enforce this. If you are from a noble family that is religious and virtuous and if the woman is forced to marry a husband who is not from a family that is religious and has good manners, she has the right to cancel the marriage contract. How do we determine the qualifications of a husband? In the US, we have no concept of nobility as such, we use other factors such as financial qualifications. If the woman is deceived into marriage about the financial standing of the husband, then she has the right to get out of the marriage contract. However since this is from one of the rights of the woman, she can choose to marry somebody who is financially less well off than her family.


Urf matters related to theft


1 A Saariq has to met certain criteria before the hadd punishment is applied to him.


The thief must have stolen from something that is protected in a proper way. If somebody had left out their luxury car with the engine idling and the cars in the car in a public place, the person who stole it, is still a thief but does not meet the criteria of the hadd punishment.


The urf determines how nowadays the valuables items are protected and hidden


Urf matters related to payment to the teachers of the Quran and Sunnah


Have teachers of the Quran and Sunnah always received payments for their services? The Hanafi school is very strict, it says you cannot receive payment for obligatory acts of the deen, such as the Imam, delivering the Friday Khutbah, etc.


The later Hanafis do offer payments to these services. They changed their opinion. Here the urf changed completely over time. Earlier the imam and teachers would receive stipend from the government, and there were others who had independent sources of income, would offer these services for free. Over time, there were not enough voluntary services, so there was a need for individuals to take care of these services. And this led the Hanafis to change their view completely and they say it is permissible.


This is the majority opinion to pay for these services.


Urf matters related to the prayer times


Do we consider the needs of the people in determining the time for Adhaan at the masjid? How did the earlier people determined the time for the adhaan?


Nowadays we pre-calculate the timings of the prayer in advance and most people accept it, earlier urf was to determine it by looking for the signs in the sky or some other natural observance such as flow of the river etc.


Urf related opinions of Imam Abu Hanifah


Imam Abu Hanifah had two students, Abu Yusuf and Muhammad Al-Shaibani would change opinions after Abu Hanifah’s passing. But they would say “If Abu Hanifah is alive today, he would have said what we are seeing.”


Urf related opinions of Imam Shafiee


Imam Shafiee as an independent scholar when he was in Baghdad and in Egypt. His madhab from Baghdad is known as the old madhab (المذهب القديم) of Imam Shafiee and his opinions in Egypt is known as the new madhab (المذهب الجدبد), he changed his opinion on many matters related to the Urf.


The opinions that changed were related to marriage, because the social conditions were different in Egypt as compared to the social conditions in Baghdad.


He also changed his usooli opinions as well. There are two editions of Al-Risaalah, one from the Egyptian period and one from the the Iraqi period. Imam Shafi’is primary book -- kitaab al-umm -- from the Egyptian period.


Since we have the two editions of most of his works, we can compare them and find out which of his opinions have changed.


Mufti should be aware of the Urf of his people


Mufti has to be aware of the urf of the people. If he is not aware of the urf, then he is ignorant of his deen, ... he is misguided and he is misguiding others ...... This is the statement of Qarafi.


During the 80s and 90s, many people in the United States were upset for getting fatwas from overseas. To what extent was this correct and to what extent was it not correct? What would be the dividing line for determining that the overseas fatwa are not properly guided?


If the matters are related to the Quran and Sunnah, then the overseas fatwa is correct. However if they are related to issues living in the US, then the person offering the fatwa must be very careful and he should not comment.


Often the problem is that the rulings based on ‘urf become the pattern and people copy it based on taqleed, and this can lead to numerous problems.


The faqih definitely has to know the Urf.


Should a daee be familiar with the urf of the people he is calling to Islam?


Let us say you are residing in Santa Clara, and should you know the urf of the people of Santa Clara to invite them to Islam?


He has to be aware of the sensitivities of the people. For example, the Prophet did not rebuild the Kaabah on the foundation of Ibrahim, why? He took into consideration the sensitivities of the Quraysh who were new to Islam and in order to not offend their feelings.


He should be aware of how to talk to people. If you came to a community of Christians and started offering daawah in the manner of Ahmad Deedat who was very adversarial to the Christians. However his way of teaching Islam might be appropriate to his society where Islam was under attack from the proselytizers of Christianity to ignorant muslims.


What role does Urf play in the life of a mufassir?


The mufassir has to be careful of the analogies and examples used in order to convey the teachings of the Quran and Sunnah.


The mufassir has to be aware of the urf of the people in order to convey the message properly to the people.


The role of the mufassir has to convey the meaning of the Quran and Sunnah, it cannot be an abstract meaning, it has to be done in the context of the understanding of the people.


The ultimate goal is to implement the Quran and Sunnah in our life, and the mufassir helps us to understand the meaning of the Quran and Sunnah.



2013-05-26 Class Notes


We’re drawing towards the end of our discussion of the qaaidah, “custom is to be enforced.”  One of the five major qawaaid that our scholars speak about.


Today, inshaAllah we will discuss how other qawaaid and corollaries are related to this qaaidah.


A ruling that is changed due to changing circumstances (if the urf or situation changes) - this is the next qaaidah we will discuss.


But first, we will talk about qawaaid that are related to this.


Corollary Qaedahs related to “custom is to be enforced”


One of the related qawaaid is that everything for which the Shariah has stated in an unrestricted manner and also for which there is no restriction in the language as well, then its understanding and practice will be understood through ‘urf.


Corollary Qaedah #1: Rulings related to travel


The classic example that we discussed earlier is traveling.  We know that traveling has a lot of rules related to it and is a proxy for a lot of hardship and difficulty associated for it.  However, there is no Shariah specification or shariah limits to what the definition is for travel or what are the parameters/limitations/aspect specific to traveling.  The various madahaab draw conclusions based on a variety of ahadith. in reality, the shariah has talked about travel in a very broad sense and has not defined its parameters.  The definition or application of travel will be based on language or ‘urf, but since the language doesn’t define travel, it will be defined/outlined by ‘urf.  What we consider traveling these days may be different from earlier days. From Santa Clara to Palo Alto is not travel for us today but 12 miles back in the days could have been a lot more.


Again, the shariah refers to and mentions travel but provides no specific parameters.


Sometimes there can be some individual differences and sometimes an individual himself might go a particular distance on two occasions for different reasons, intentions or via different means, in one case he might consider it traveling and in another he might not consider it traveling.


Typically, a qaaidah’s maxim is supposed to be succinct and concise but that’s not always the case.


There are a number of qawaaid that are basically, in essence, repeating the meaning of “custom is to be enforced.”


Corollary Qaedah #2: Rulings related to the practice and customs of the people


There’s a qaaidah that says, “what is established as ‘urf, is to be treated in the same way that’s established through shariah evidence.”


Similarly, using slightly different wording, “the practice of the people is a hujjah and it’s obligatory to act accordingly.”


Another qaaidah says, “the fatwa must be according to the customs of the people.”


All of these qawaid are basically saying the same thing we have been discussing this quarter.


Corollary Qaedah #3: Dhawaabit related to business dealings that are well known and established


There are additional statements that could be considered dhawaabit and not qawaaid.

“What is well known and what is established among businessmen and traders is the same as something they actually stipulate.”  If something is common practice, it doesn’t have to be stipulated in a contract.

ex. if you sold a house nowadays, it’s assumed that the foundation is included.  You don’t buy or sell a home without its foundation.


Would you consider this a qaaidah or dhaabit?  This is a dhaabit as it’s addressing business transactions specifically. (Edit: Qaeedah are more general they apply to many different situations, whereas dhaabit are specific to one issue or area, such as the business transactions in this example.)


Corollary Qaedah #4: Literal permission plays the same role as Urf


Another qaaidah, similar to specifying the common ‘urf, is “what is permissible by ‘urf takes the same place as what is given literal permission for.”  For example, if you have an apple tree and this tree grows over into your neighbor’s yard.  Even if the land is tilted or if part of the tree is over the neighbor’s fence, if there are apples that fall from the tree over this boundary, who owns these apples?  The neighbor or the tree owner?


Let’s assume that it should belong to the owner of the tree because he’s the one who planted it.  however the ‘urf may be if these land in the neighbor’s property, he or she can use it and benefit from it.  This ‘urf would be the same as if the tree owner comes to the neighbor and establishes an agreement with the neighbor saying that the apples falling in the neighbor’s property can be kept (this would be a literal agreement).


Is this a qaaidah or dhaabit?  It would be a qaaidah.


Corollary Qaedah #5: Specifying something by ‘urf is same as specifying something by text


Another statement is “specifying something by ‘urf is like specifying something by text.”  There is a number of qawaaid in this category as well.


There are some qawaaid that talk about some of the conditions on the original qaaidah.


Corollary Qaedah #6: If there is a clear text, then it is an unconsidered ‘urf


For example, every ‘urf for which there is a text in contradiction to it, then this ‘urf would be considered as an unacceptable ‘urf or not considered to be ‘urf.  Obviously when we say that the ‘urf is to be applied, there are some conditions to it.  One of those said conditions is that the ‘urf cannot contradict the shariah.


When you speak about the ‘urf of the people during jahilliyaah, the Prophet saas approved some of their ‘urf.  These approved parts take on the meaning of sunnah.  Those urf that he disapproved of are rejected and not part of the sunnah.


Corollary Qaedah #7: A clearly stated prohibition takes precedence over the ‘urf


Among the other conditions and concerns related to ‘urf is another qaaidah that says, “the clear prohibition or the clearly stated prohibition, this overrules an ‘urf permission.”


Basically what you have is that ‘urf in general will be applied unless for example we have a business agreement and as part of that there are certain urf components to that and we specifically say that we are not going to follow these urf practices.  


Suppose someone has private property like a garden.  The custom of his land is that other kids happen to be in your garden and are hungry, they happen to pick some fruit.  In that urf, that wouldn’t be a problem.  however, if he put up a sign that said “no picking fruit in this garden,” then this clear prohibition is going to overrule the urf permission.  This is within his rights and it’s his property.  The urf may expect him to act differently but it is his right and he might have some reasons for it.


There are a number of qawaid -- if you are in a business transaction, what you explicitly stipulate, then that takes precedence over ‘urf and that is within your rights. For example, if as part of a marriage contract, and the general pattern is that you move in with the husband’s family, but if she puts a condition in the contract, that takes precedence over ‘urf.


There are also other qawaaid that explains urf.


Explanatory Principle Qaedah: ‘Urf is only for the common case


Urf is only something that is widespread or continually used or is the dominant practice


Another qaa’idah says, “that consideration will be given to that which is widespread and not that which is rare or unusual or an exception.”  Not of the shariah laws are based on exceptions, special circumstances or something that is rare.


There are many thousands of qawaaid that we know of.  Some of these are derivatives, corollaries or further explanations of a higher-level qaaidah.  We’ve also mentioned why some of these are called qawaid al kubrah as there are many others derived from or based on these main qawaaid.


None of these corollary qawaaid that we’ve mentioned should come as a surprise.


Q: Could there be a new qaaidah put forth today?

A: The qawaaid are “discovered” so to speak by looking at the fiqh and seeing how fiqh rules relate to one another.  It’s possible that you could find a relation between fiqh rules that were not observed before, especially when it comes to fiqh. For more general principles, that would be less likely (or more difficult).



لا ينكر تغير الأحكام بتغير الأزمان

Qaedah: Changes in rulings due to changed circumstances should not be objected to


What this qaaidah is saying is that if, due to change in time, we should not reject a change in ruling that is based on a change in time.  Ibn Qayyim says this more strongly; he extends it by saying a change in time, place, circumstances, intention or custom may lead to a change in ruling and this change should not be objected to.


This qaedah is the superset of the qaedah that we are discussing. We said earlier that if the customs change, then the ruling changes. Now we are discussing it more formally. Ibn Qayyim states this qaedah more explicitly and allows for changes of rulings based on changing circumstances.


النسخ Abrogation and its relationship to changes in Shariah rulings


In the time of the Prophet saas, we had the concept of abrogation.  How would you define that?  It’s when a later source overrides an earlier source.  How would you describe override?  In the use of the early Muslim scholars, abrogation sometimes meant particularization.  However, this usage stopped a long time ago.


A particularization of a text can also be considered a type of abrogation (or a partial abrogation).


In modern times, it means complete removal of a prior ruling by a later ruling. Example: Alcohol was permitted, but then it was prohibited. Or the Prophet (SAWS) prohibited people from visiting the graves, and now I permit it.


Can we say that the shariah rulings are subject to change?


If there is abrogation in the shariah, then that means the shariah rulings can change or be substituted.


Quotation from .... some laws were changed  due to maslaha, circumstances, place and time ... What do you think about this statement? In the next paragraph, it says that the practice of abrogation began during the time of the Prophet and it stopped after his death. (Footnote: There is no doubt that abrogation stopped with the death of the Prophet.)


A change in ruling is definitely different from abrogation.  Once the Prophet (saws) passed away, there is no further abrogation.  


This qaaidah accepts that the fact that rulings can change.  This flexibility is critical as this shariah has been revealed for mankind until the day of judgment, so it must have some built-in flexibility within limits.  This qaaidah is referring to that flexibility.


As it’s written, the first time it appeared is during the latter part of the Ottoman stages.  They compiled this work  of principles guiding the shariah, which has been translated into English as Majalla.  This is qaaidah #39.  However, just because it wasn’t explicitly written out as a qaaidah in earlier years doesn’t mean that it didn’t exist at least in spirit or concept.


Opinions of scholars about لا ينكر تغير الأحكام بتغير الأزمان


Qaraafi says that if a law is meant to change and if you don't allow it to change and keep it fixed, then you are attacking the shariah, if you don't understand this flexibility, then you don't understand the shariah.


Qaraafi and other scholars did not explicitly mention this qaeedah about changes in rulings based on changing circumstances should not be objected, but they wrote about it.


A number of Ph. D. dissertations have been written about it too. There are very good and positive reasons, why this qaedah is getting attention, similarly there are negative reasons for its popularity among thesis and other scholars.


This qaedah could be used by modernists or other factions to further their cause. You have to avoid both sides of the extremes, ignoring this qaedah is one extreme and abuse is the other extreme.


There are some scholars who don't accept this qaedah, or some don't accept it the way it is stated in the title of this section ( لا ينكر تغير الأحكام بتغير الأزمان ) . Some of them will insert the word ijtihaad after the word ahkaam (الاحكام الاجتهادية).


The rulings that are based on ijtihaad could be wrong, they could also be related to the circumstance of the scholar making the ruling, based on this the ruling is subject to change.


Other scholars say the specification “on those ahkaam based on ‘urf and maslahah”. Ijtihaad that follows directly from the Quran and Sunnah is not going to change, but those that are based on urf and maslahah are subject to change, when the urf and maslahah changes.


Some scholars rejected this qaedah about rulings changes due to change in circumstances. Other scholars accept this qaedah but have a difficult time accepting the the examples mentioned in the qaedah.


One of the more controversial scenarios is that a change in the ruling if the illa (legal cause) is no longer being met. Can you change the ruling if the illa is not being met, we will discuss it later. For example, what should be the ruling about non-alcoholic wine?


We assumed that we would discuss changes in the urf and the changes in the ruling based upon it, however there might be changes in the ruling due to illa or legal cause being absent, we will discuss this next week.


The reason for this qaedah being written with the phrase La Yunkir is that many times people are doing taqleed based on ijtihad which was meant only for a certain time and place. So such people can start objecting to someone if someone does not follow the ijtihad of that time and place.


The reason why some scholars object to it, is because of the word ahkaam in the qaedah. Here ahkaam does not mean ahkaam al shariah but ahkaam derived from the ijtihad.


If the Urf changes, then the ahkaam changes.


In earlier books of fiqh, when you were buying a house that has many rooms, if you inspected just one room then that would be sufficient. Since in early days all of the rooms were uniform, but now the styles of houses have changed, there are different usages of the rooms and you no longer are restricted to inspecting just one room of the house.


Many scholars understand the ruling as applying in situations where fasaad has spread through the community. We will discuss this ruling with an example from Somalia next week?????


Q: Was riding a camel part of the Sunnah so we should do that too?

A: No, that’s not included in the definition of Sunnah.


2013-06-02 Class Notes


Edit: This is the last class for the quarter.


Qaedah: Changes in rulings due to changed circumstances should not be objected to


After finishing the discussion of “custom to be enforced”, we discussed related corollary qaedahs. And then we moved on to a very important related qaedah, which is Changes in rulings due to changed circumstances should not be objected to  لا ينكر تغير الأحكام بتغير الأزمان


Ibn Qayyim when he discussed this qaedah in the chapter heading, “Arabic heading over here .... changing of the fatwa and its differing due to change in era, timings, place, intention and customs”.


When ibn Qayyim discussed it he discussed much more than the time and place. This shows that the Shariah has the flexibility which are able to accommodate for the changing time and place.


Discussion of fixed ahkaam - those that are not subject to chanage


However we can also conclude that there are some ahkaam that are never subject to change. What ahkaam are those?


Classroom discussion: Ahkaam that have clear ruling and clear purpose. Cases where the ruling is supra rational such as those related to salah. In salah you have to cover your awrah, is there any exception to it? Yes you could pray without covering your awrah if the Fajr prayer time is about to expire. So here we showed an example of supra-rational, there might be exception, which are related to necessity.


Can we say that other than necessity, the laws of ibaadah are not subject to change? Yes it is true as a general principle.


Urf is not the only reason why a law can change, and the qaedah we are studying is more general than the one related to Urf.


Some fixed laws may slightly allow for a change when they are subject to Urf


Even fixed laws that are subject to change when the urf changes, such as defining a thief, which is defined as stealing something which is safely guarded, and the definition of safely guarded changed from the time of the Prophet to today.


Laws related to akhlaq and aqeedah are not subject to change


Are laws related to moral character subject to change? Is definition of moral character subject to change?


Can somebody make a statement of kufr under duress? Yes, these are exceptional circumstances. So can we say that the definition of moral character does not change, but what is understood of cleanliness etc change.


Footnote: As the scholars say that the matters of Aqeedah and matters of Akhlaq do not change from one Prophet to the other Prophet. For example, one Prophet will say that lying is forbidden and then another Prophet will not come and say that the lying is not forbidden.


Technology and knowledge related changes


missed discussion about technology related changes...


The change in knowledge will also change some laws. For example people did something and then with increase in knowledge it is found that it is harmful then the people may stop doing it.



Laws changed due to change in level of religiousness


Fasaad Al-Akhlaaq -- the level of religiousness of the people decrease, so you have to change with the time.


Example of Fasaad Al Akhlaq - Laws related to finding lost camels


If you see a lost camel, what should you do? How do you apply this hadith about the lost camel. The hadith says that if the lost camel has source of water and vegetation, then leave it, eventually it will find its owner.


http://www.sunnah.com/urn/1268220


It was narrated from Zaid bin Khalid that the Prophet () was asked about a lost camel:

He turned red, and he said: “What does it have to do with you? It has its feet and its water supply, it can go and drink water and eat from the trees until its owner finds it.” And he was asked about lost sheep, and he said: “Take it, for it will be for you or for your brother or for the wolf.” And he was asked about lost property and he said: “Remember the features of its leather bag and strap, and announce it for one year, then if someone claims it, describing it to you with those features (give it to him), otherwise incorporate it into your own wealth.” (Sahih)


حَدَّثَنَا إِسْحَاقُ بْنُ إِسْمَاعِيلَ بْنِ الْعَلاَءِ الأَيْلِيُّ، حَدَّثَنَا سُفْيَانُ بْنُ عُيَيْنَةَ، عَنْ يَحْيَى بْنِ سَعِيدٍ، عَنْ رَبِيعَةَ بْنِ أَبِي عَبْدِ الرَّحْمَنِ، عَنْ يَزِيدَ، مَوْلَى الْمُنْبَعِثِ عَنْ زَيْدِ بْنِ خَالِدٍ الْجُهَنِيِّ، فَلَقِيتُ رَبِيعَةَ فَسَأَلْتُهُ فَقَالَ حَدَّثَنِي يَزِيدُ، عَنْ زَيْدِ بْنِ خَالِدٍ الْجُهَنِيِّ، عَنِ النَّبِيِّ صلى الله عليه وسلم قَالَ سُئِلَ عَنْ ضَالَّةِ الإِبِلِ فَغَضِبَ وَاحْمَرَّتْ وَجْنَتَاهُ وَقَالَ ‏"‏ مَالَكَ وَلَهَا مَعَهَا الْحِذَاءُ وَالسِّقَاءُ تَرِدُ الْمَاءَ وَتَأْكُلُ الشَّجَرَ حَتَّى يَلْقَاهَا رَبُّهَا ‏"‏ ‏.‏ وَسُئِلَ عَنْ ضَالَّةِ الْغَنَمِ فَقَالَ ‏"‏ خُذْهَا فَإِنَّمَا هِيَ لَكَ أَوْ لأَخِيكَ أَوْ لِلذِّئْبِ ‏"‏ ‏.‏ وَسُئِلَ عَنِ اللُّقَطَةِ فَقَالَ ‏"‏ اعْرِفْ عِفَاصَهَا وَوِكَاءَهَا وَعَرِّفْهَا سَنَةً فَإِنِ اعْتُرِفَتْ وَإِلاَّ فَاخْلِطْهَا بِمَالِكَ ‏"‏ ‏.‏


At the time of Uthman, this was changed, because people could steal the camel. The trustworthiness of the people had changed, the moral quality of the people had changed. So now you should take possession of the camel and announce it to the community, since there are less trustworthy people who might steal it.


Example of Fasaad al Buluwa: Changing law related to traveling with one’s spouse


If your company relocates you, then does the wife have to relocate with the husband? Does the husband have to take permission of his wife?


Ibn Abideen describes that a man could travel with his wife to any place and there was no issue with it at all, but now the fatwa has changed due to the fasaad (corruption) of the time, now he cannot travel with her unless he gets her explicit permission and approval.


By the time of ibn Abideen, the man would take his wife away from her city where she had support, in order to harm her. Since this had become prevalent in the society, the man could not take his wife away from the city without her explicit permission.


This is an example of fasaad al Buluwa. These are not related to necessity, but since it is affecting the entire society, the laws had to change.


Laws changing due to change in intention of the doer


Ibn Abidin says that law may change due to the intention. For example, if you did something for Riyaa then law can change. Someone is living in Dar ul Kufr but he is there for the Dawah but he is not there for the economic reasons.


Can a person who is sexually defiled make duaa and mention Allah’s name? What if the duaa is a verse of the Quran. Can he make the duaa? He can if his intention is to make duaa and not recite the Quran.


Similarly it is forbidden to recite the quran in Rukuh and Sujood however, if someone has the intention of the making dua then he can make one of the duaa in the Quran.



Laws changing due to change in illa of the original ruling


Example: Ruling related to washing hands after waking up


The Prophet (SAWS) sometimes instructed us to do things, but the purpose or the goal behind it, no longer seems to be there.


When you get up from sleep then Prophet (pbuh) has said that we should not put our hand in the water container or vessel.

http://www.sunnah.com/muslim/2#109


Abu Huraira said:

When anyone amongst you wakes up from sleep, he must not put his hand in the utensil till he has washed it three times, for he does not know where his hand was during the night.


وَحَدَّثَنَا نَصْرُ بْنُ عَلِيٍّ الْجَهْضَمِيُّ، وَحَامِدُ بْنُ عُمَرَ الْبَكْرَاوِيُّ، قَالاَ حَدَّثَنَا بِشْرُ بْنُ الْمُفَضَّلِ، عَنْ خَالِدٍ، عَنْ عَبْدِ اللَّهِ بْنِ شَقِيقٍ، عَنْ أَبِي هُرَيْرَةَ، أَنَّ النَّبِيَّ صلى الله عليه وسلم قَالَ ‏ "‏ إِذَا اسْتَيْقَظَ أَحَدُكُمْ مِنْ نَوْمِهِ فَلاَ يَغْمِسْ يَدَهُ فِي الإِنَاءِ حَتَّى يَغْسِلَهَا ثَلاَثًا فَإِنَّهُ لاَ يَدْرِي أَيْنَ بَاتَتْ يَدُهُ ‏"‏ ‏.‏


Now a days we have faucets, so do we apply this hadith. Back then the vessels could have a harmful animal come in overnight. However for this hadith illa is not entirely clear. However we still do not know where the hand goes and spends during the night. So this part is still true, so we still apply this hadith. So many scholars say in books of fiqh that it is due to the impurities that existed at that time. Many scholars consider this act to be mustahab (recommended) in the first place.


Example: Ruling related to women attending Eid prayers


In many Muslim countries the women do not go for Salat al Eid, which is against the hadith of the Prophet (pbuh). During the time of the prophet all of the women attended Eid prayers, so what changed in the circumstances of the nation to change the rulings about Eid prayers.


What was the illa of the statement of the Prophet about attending Eid prayers? It was related to the small size of the Muslim community during the time of the Prophet and in order to show the non Muslims that a large number of people attending the Eid prayers to show the strength of the community. This is an educated guess about the illa.


Here we are discussing laws changing due to change in the illa. Many times the illa is derived and it is matter of ijtihad and it is nowhere to be found in the text. In most of the narrations it is just said that so they can join in the Baraka of that day. Sh. Jamaal has not seen anywhere that the illa is explicitly mentioned to be the show of strength. So it looks like this illa is derived. When the illa is derived one has to be very careful since one may be losing very good Ahkam to do due to a mistaken ijtihad on illa.


Suppose the Eid becomes a fashion show and sometimes women do not properly cover themselves. Should the ruling change for going to the Eid prayers?


Let’s assume that we are in some sort of a semi-Muslim state and imam can give the order to stop them. What if women’s behavior is also not proper. Then can the imam stop them? Sh. Jamaal thinks imam should allow and figure ways to correct their morals and behavior so they will start to come to prayers with modest dress and good moral behavior.


Footnote: There are many fasaad related to women attending Prophet’s birthday celebration in Egypt.


Laws changing due to changes in the ruling


Example: Writing down the hadith of the Prophet


Didn’t the prophet prohibit one time somebody writing down. Later the ruling changed and it was allowed to write down the hadith of the Prophet.


Laws changing due to necessity


During the time of Umar (ra), a desperate woman without access to food and water during a travel was forced to perform zeena by a person who would only offer her food and water if she performed zeena. The woman came and mentioned her zeena to Umar and Ali. And the ruling of the zeena punishment was not applied to her due to the laws of necessity.


Conclusion


Any custom which is not according to Quran and Sunnah is not enforced. Any custom which is according to the Quran and Sunnah can be enforced. Any other situation has to be studied and judgement should be made according to the Quran and Sunnah.


Discussion about some special Urf related to Swahili coast of Somalia


There is a custom related to childbirth among the Sunni people of Lamu in Somalia. Some customs are milla and some are deeni. There are some customs that pre-date Islam.


The culture is that the first thing that the child should hear is Adhaan. This is the reason why the people do not like to have childbirth in hospitals since they do not want the newborn child to hear doctors and nurses after they are born.


They also have a practice known as tahneeq. A person chews dates and puts it into the gum of the baby. This was from the practice of the Prophet.


After tahneeq, they give the child subeeni which is a thing that is bitter. It signifies that there is sweetness and bitterness in the life. Are they adding to the sunnah by adding subeeni to the tahneeq.


After the seventh day, the child is shown the sun. The baby is taken out of the house to see the sun and they take the baby to see around the house. Then they tell the baby that we have shown you the house and what belongs to you, so that you cannot be greedy.


Here if you follow practices that are not sound, then you might be subject to blind following and one may fall into false beliefs which Islam came to uproot.


Footnote: A student mentioned that there is a practice called Banan Bihi, where you give the child to person whom you would like to have close to its character.


Finally in order to ensure that the child are not subject to djinn and shayateen, they make sure that the children and the pregnant women are restricted to remain indoors.


They are burn essence and the rubbish of the mosque in order to drive the shayateen away. This is bidaa since we do not follow any of the unseen unless there is evidence from the Quran and Sunnah.


They also put amulets on the baby to drive away the evil eye. They crack their knuckles three times to drive away the shayateen.


So some of their practices are clearly bidaa such as burning rubbish and essence, cracking knuckles, putting amulets.


Some of their practices are borderline bidaa such as showing the sun, giving the child subeeni, etc


Should we say that since this is the Urf of the people and that Urf has to be enforced. This shows that Urf is difficult to understand properly and to be enforced. We have to consciously keep away from superstitious behaviors.



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