Some of the Mujtahideen consider the ‘Urf to be a Daleel from among the Adillah Ash-Shar’iyah and take a lot of the Ahkaam Ash-Shar’iyah from it. They do that based upon the following speech of Allah Ta’Aalaa to prove its legitimacy as an evidence:

They also cited a number of Masaa’il (issues) and Ahkaam that the ‘Urf was made a Daleel Shar’iy for.

The invalidity of their opinion is summarised in the following points:

1 – The Aayah that they have used as evidence for the Hujjiyah (validity) of the ‘Urf has no relationship to it. That is because the Aayah is Makkiyah and from Soorah Al-A’araaf. The norms and customs of the people were Jaahil and contrary to Islaam. The Amru Bil-‘Urf mentioned in the Aayah means ordering what is Jameel (beautiful and good) from amongst the actions in the case where the ‘Urf is the Hasan (good) action and the Hasan is that which the Shar’a has designated as being Hasan. The Hasan does not represent that which existed in terms of the actions of Jaahiliyah like burying the daughters alive, Ribaa, Zinaa or drinking alcohol for example. Consequently, Allah (swt) is requesting the Messenger (saw) to command them with the good action that the Shar’a has demanded from them like the worship of Allah, being kind to the parents and feeding the poor etc.

2 – As for the Hadeeth that they used as proof and evidence to support the ‘Urf being a Daleel Shar’iy which is:

This is a Qawl (speech) attributed to ‘Abdullah Ibn Mas’ood (ra) and is not a Hadeeth. Consequently, it cannot be used as a proof and additionally it has no relationship to the ‘Urf because the text states: ‘What the Muslims have seen…’ and not what they have become accustomed to and made habitual amongst themselves.

3 – As for the actions that the Messenger of Allah (saw) approved of which were from the customs and norms like the Mudaarabah partnership, Al-Istisnaa’ (ordering the manufacture of a thing) or some of the types of trade, then acting by them is considered to be acting in accordance to the Daleel Ash-Shar’iy. That is because it represents the Iqraar (approval and consent) of the Messenger (saw) whilst it does not represent acting in accordance to the ‘Urf or ‘Aadah (norm). That is because the Sunnah At-Taqreeriyah (approval and consent) is a Daleel Shar’iy.

4 – In regards to what the Fuqahaa considered to represent a Hukm Shar’iy based upon the ‘Urf Al-Qawliy (speech custom) then some of this relates to the Istilaah (terminological convention) and some of it is related to the measuring or evaluating of things (Taqdeer):

A – As for what relates to the Istilaah (terminology) then there is no doubt in respect to its consideration amongst those who made the terminology and this is not related to providing the Hukm (judgment) upon things or matters but rather it relates to providing and designating specific names for meanings.

An example of this is what the people of language have become accustomed to in respect to utilising the name ‘Daabbah’ for the non-human animals although in its original linguistic provision it had covered everything that moved upon the earth including the human. This therefore represents what is called a Haqeeqah Lughawiyah ‘Urfiyah (A customary linguistic reality) which is taken into consideration in respect to applying the Ahkaam Ash-Shar’iyah.

Consequently, if a man was to swear an oath that he would not give water to a Daabbah he would not have broken this oath if he was to provide water to a human being. That is because the Istilaah Al-Urfiy (Customary terminological convention) has excluded the human from the Lafzh (wording) ‘Ad-Daabbah’. We will examine this subject in detail Inshaa Allah in the second part of this book which deals with and examines the subject of the Arabic language.

B – As for the Taqdeer (evaluating and measuring) then this matter returns to the people of expertise whether it relates to Nafaqah (spending) or the Mahr Al-Mithl (dowry of like) or Ajr ul-Mithl (wage of like) or other than these.

The consideration of the Taqdeer (evaluation) comes only from the Shar’a and it does not come from the ‘Urf. That is because Shar’iyah texts have come making the evaluation (Taqdeer) of that belong to the Ma’roof (what is known) amongst the people whilst these texts did not come for the ‘Urf to pass judgment in everything or every matter. So when Allah (swt) said:

What is meant by Ma’roof here is that matter which is known to be accustomed to in relation to the reality of the wife; is she from amongst those who is served by others or is she the one who serves her husband. So it relates to whether this woman, in accordance to her reality present within the married home, is a Sayyidah (mistress) who is served or from those who serve her husband. So the same rights that are obligatory to others like her are obliged in respect to her. Therefore, if she is a Sayyidah who is served, the husband (if capable) will bring a servant to serve her and if she was not like that and was capable of serving her husband, the husband is not obliged to bring in a servant. And when Allah (swt) said:

The Ma’roof here means that the provision of their sustenance and clothing is required to be in accordance to those women who are similar to her. The evaluation of these matters would fall to the people of expertise who are aware of the amount of Nafaqah (spending) that is required or necessary for a particular woman. Each is evaluated in accordance to the level of their living in the society and the family that they live amongst.

The Istilaah (terminology) and Taqdeer (evaluation) are therefore necessary in order to realise the Manaat (reality) of the Hukm. They are required to make clear the reality of the thing, matter or action that is intended to pass judgment upon. They do not as such represent a source for the Daleel of the Hukm.

So whoever took the Istilaah and the Taqdeer to be used to explain and evaluate the meanings and matters during the process of investigating and realising the Manaat of the Hukm, then there is no issue with that. Indeed, they are both necessary for every Mujtahid in relation to deducing the Ahkaam Ash-Shar’iyah.

5 – As for the ‘Urf Al-‘Amaliy (action based custom), which are the repeated actions, then they must submit to and be subservient to the Shar’a. That is because it is decisive and definite that it is obligatory for the Muslim to make his actions proceed in accordance to and be regulated by the commands of Allah Ta’Aalaa and what He has forbidden, whether they have been repeated or not been repeated.

Consequently, it is obligatory for the customs and norms to be ruled over by the Shar’a whilst it is impermissible for the ‘Urf to be considered to represent a Daleel Shar’iy.

6 – The origin of the Adillah is the Wahi represented in the Kitaab and the Sunnah and these two represent the two main or fundamental evidences. In addition, that which has been proven by these two to be a Daleel Shar’iy, like the Ijmaa’ and the Qiyaas, are considered to be a Daleel Shar’iy. In contrast, that which is not proven by these two to be a Daleel Shar’iy is not a Daleel Shar’iy.

And the ‘Urf has not been deduced from a Shar’iy text and the texts from the Qur’aan or the Sunnah have not guided to its Hujjiyah (validity as a proof and source of evidence). It is therefore not a Qaa’idah Shar’iyah and not a Daleel Shar’iy Ijmaaliy (source of evidence like the Kitaab, Sunnah, Ijmaa’ and Qiyaas).