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Unformatted text preview: verbal, is once again divided into the two types of general and special: al-urf al`amm and al-'urf al-khass respectively. A general `urf is one which is prevalent everywhere and on which the people agree regardless of the passage of time. A typical example of this is bay al-ta'ati to which reference has already been made. Similarly, the customary practice of charging a fixed price for entry to public baths is another example of general 'urf, which is anomalous to the strict requirements of sale (as it entails consuming an unknown quantity of water) but the people have accepted it and it is therefore valid. It will be further noted that in their formulation of the doctrine of istihsan, the Hanafi jurists have validated departure from a ruling of qiyas in favour of general 'urf. This has already been elaborated in the separate chapter on istihsan. Theories, p. 81.] [17. Abu Zahrah, Usul, p. 217; Sabuni, Madkhal, p. 138; Aghnides, Muhammedan "Special custom" is 'urf which is prevalent in a particular locality, profession or trade. By its very nature, it is not a requirement of this type of 'urf that it be accepted by people everywhere. According to the preferred view of the Hanafi school, special 'urf does not qualify the general provisions of the nass, although some Hanafi jurists have held otherwise. Consequently, this type of 'urf is entirely ignored when it is found to be in conflict with the nass. The general rule to be stated here is that the ahkam of Shari'ah pertaining to the authority of 'urf only contemplate the provisions of general 'urf. A ruling of qiyas, especially qiyas whose effective cause is not expressly stated in the nass, that is, qiyas ghayr mansus al-'illah, may be abandoned in favour of a general `urf, but will prevail if it conflicts with special 'urf. A number of prominent ulema have, however, given the fatwa that special 'urf should command the same authority as general 'urf in this respect. The reason why general 'urf is given priority over qiyas is that the former is indicative of the people's need, whose disregard may amount to an imposition of hardship on them. Some Hanafi jurists like Ibn al-Humam have taught that 'urf in this situation commands an authority equivalent to that of ijma', and that as such it must be given priority over qiyas. It is perhaps relevant here to add that Abu Hanifah's disciple, al-Shaybani, validated the sale of honeybees and silkworms as this was commonly practiced during his time despite the analogical ruling that Abu Hanifah had given against it on the grounds that they did not amount to a valuable Principles of Islamic Jurisprudence ~ Kamali 254 commodity (mal). Furthermore, the ulema have recorded the view that since 'urf is given priority over qiyas despite the fact that qiyas originates in the nusus of the Qur'an and Sunnah, it will a fortiori be preferred over considerations of public interest (maslahah) which are not rooted in the nusus. Having said this, however, it would seem that cases of...
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- Spring '13