The following are some notes (the audio is at the bottom of this post) from my lecture on ‘Urf/عرف (customary and cultural practices that wish to have legal consideration and or application, but from which there is no precedent in the Qur’an, Sunnah, and no definite dalil is offered), what scholars term as local custom, and its consideration into the decision-making process of not only Muslim jurists (which is what Dr. Adil Qawtah’s book deals with) but also for everyday Muslims. During the 2012 Ella Collins Winter Retreat, the audience fielded a number of really great questions. What was underpinning many of these questions (my guess this yearning may even be unbeknownst to the questioner themselves) was a need to see if and to what extent could accommodations be made for local cultures and customs, to some extent or another.
The text that I used is by Dr. Adil bin ‘Abd al-Qadir Qawtah of King Abdul Aziz University in Saudi Arabia entitled “The Effects of Local Custom Along with Its Modern Applications in Understanding [Islamic] Financial Transactions”/أثر العرف وتطبيقاته المعاصرة في فقه المعاملات المالية. As I explained during the lecture, while my topic is not actually on financial transactions, one will often find in books that the introduction is the most critical part to read. Aside from telling you what the author’s aims and objectives are, in doing so, they frequently give concise and beneficial explanations of heady and difficult concepts. In Dr. Qawtah’s introduction, he defines a number of important fiqh points as it relates to local cultures and customs (hereafter referred to as ‘Urf: see definition above) and in the general sense of usul al-fiqh. I felt such a short and concise primer may prove beneficial in introduction Muslims to the mechanics of how Muslim thought (a.k.a., usul) works. I also hoped it would demonstrate that when American Muslim scholars delve into the very same tradition, texts and sources, and extrapolate from them new meanings for a new context, they will see that this endeavor is not a betrayal of Islam or its intellectual history, but in fact a bold and daring attempt to uphold it. Below are a few takeaways from the Introduction:
أهمية ” العرف ” وحاجة الفقيه إلى اعتباره
Under the heading of “The Importance of ” ‘Urf ” and the Necessity of the Jurist in Considering It”:
يمكن تقسيم أنحاء أهمية العرف وحاجة الفقيه إلى لحظها وإدراكها إلى الإنحاء الأربعة التالية
One can classify the importance of ‘Urf as well as the jurist’s need to consider its application into how it is perceived and recognized, into the following four parts:
- حاجة الفقيه إلى العرف في فهم نصوص الشريعة نفسها/The obligation upon the jurist towards ‘Urf to comprehend the texts of al-Shari’ah in and of itself.
- حاجة الفقيه إلى العرف حال تعامله مع المدونات و الكتب الفقهية/The obligation upon the jurist towards ‘Urf to be competent with the canon of legal rulings and books of jurisprudence in case the circumstance has been previously dealt with in.
- حاجة الفقيه إلى العرف لفهم الواقع وتحقيق المناط وتنزيل الأحكام على الحوادث/The obligation upon the jurist towards ‘Urf to comprehend the situation at hand, to ascertain the objective of the rule (i.e., the point upon which the hukm/ruling is formed from*), and, to phrase it metaphorically, ‘pull the case books off the shelves’ in order to adequately address real circumstances.
- حاجة الفقيه إلى العرف لمعرفة الناس/The obligation upon the jurist towards ‘Urf to have an intimate understanding of the people in question.1
ومن معرفة الواقع – المحكوم فيه والمسؤول عنه – الذ يشترط القاضي والمفتي – معرفة الناس: معرفة أحوالهم وأعرافهم وعوائدهم وأنواع تصرفاتهم و سنن معايشهم وطرائق سلوكهم الاجتماعي: من نكاح وعشرة وطلاق
“And regarding having an intimate understanding of circumstance: this relates to the what will receive the judgment as well as its responsible party – which both judge and jurist will then stipulate – is precisely having intimate knowledge of people: their various conditions, customs, habits, modes of conduct, lifestyles, way in which their societies developed, including but not exclusive to: how they marry, form companionship, and divorce.”2
* To illustrate this, the word “manat/مناط” means a frame of reference or reference-point . In the context of usul al-fiqh, it is evoked in matters pertaining to the permissibility of a particular substance or situation. To help illustrate this point, take wine for example. There is total agreement that it is impermissible because of its intoxicating nature. This feature of wine would be known as al-manat in usul. Now, tahqiq al-manat means that when a jurist deals with making a legal ruling/fatwa pertaining to a new kind of drink that is not wine, he is obliged/حاجة الفقيه إلى to make sure that al-manat is fulfilled (the almost literal meaning of “tahqiq”), or this new drink is intoxicating before giving a fatwa. That is to say, the act of making sure (tahqiq) that the new drinks are as intoxicating as wine is the meaning of tahqiq al-manat.
The reason I wanted to do my class on ‘Urf was because we had touched on this during a session on Saturday in which we posed the following scenario: a person wishes to become Muslim but they own a house dog. Most opinions in the Four Schools limit owning animals to outside the home as work dogs. However, there is an opinion in the Maliki school in which a dispensation was given to domesticated dogs versus wild dogs. What the paneled had offered up was in summary: should we debar a person from entering Islam, or at the very least, make it difficult for them, if they happen to own a dog to which they are heavily and emotionally attached, knowing there is a dispensation for this? Or shall we take the harshest and least lenient ruling as means of demonstrating “superior piety”. What Shaykh Abdul Nasir Jangda noted was that while this situation may warrant the taking of an easier way, it should not be mistaken as carte blanche (I love you Imam Suhaib!) to simply “let the dogs out!”. In essence, we should look for ways in which to accommodate circumstance yet be wary of crafting opinions that are at their heart, nothing other than letting people follow their passions blindly.
But perhaps most important here, Dr. Qawtah reminds us of the following:
وذلك أن الفقيه لا يجتهد في فراغ
“The jurist does not operate in a vacuum.”
And God knows best.
I would also encourage reading Dr. ‘Umar Faruq ‘Abd-Allah’s Islam and the Cultural Imperative.