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Sunday, 4 December 2011

The Place of Urf (Custom) in Islamic Law

The International Council for the OIC Fiqh Academy, in its 5th session, held in Kuwait from 1-6 Jumada al-Ula, 1409 AH (corresponding to 10-15 December, 1988) having reviewed the research presented by the members and experts on the topic of customary practice, and having listen to the deliberations about it, resolved the following:
1.      Urf (custom) is something that people have become used to and which they practise [as a matter of course]. It applies to statements and acts and also to abstentions from action. A given custom may or may not be recognized by the Shariah.
2.      If a customary practice is specific to a particular group within a society, it is taken into consideration in judgments that affect those who practice it. If it is general, then it is applicable to everyone.
3.      For a customary practice to be recognized by the Shariah, it must fulfil the following conditions:
a.       It should not violate the Shariah. If a customary practice violates a divine text or any Shariah principle, it is regarded as invalid.
b.      The customary practice should be constant or predominant.
c.       The customary practice should be in existence at the time the transaction is contracted.
d.      The two contracting parties must not have agreed to a condition contrary to the customary practice. If they have agreed to the contrary, then the customary practice is not recognized.
4.      It is not befitting for a Muslim jurist, be he a mufti or a judge, to adhere only to what is reported in the jurists' books without considering the shifting nature of customs.

Allah knows best.
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