Principles of Islamic Jurisprudence by MH kamali

It is perhaps relevant here to add that abu hanifahs

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Unformatted text preview: conflict between general 'urf and maslahah would be rather rare. For 'urf by definition must be sound and reasonable, considerations which tend to bring 'urf close to maslahah. For after all, 'urf and maslahah each in their respective capacities serve as a means for the realisation of public welfare and the prevention of hardship to people. And lastly, from the viewpoint of its conformity or otherwise with the Shari'ah, custom is once again divided into the two types of approved or valid custom (al-`urf al-sahih) and disapproved custom (al'urf al-fasid). As is indicated in the terms of these expressions, the approved 'urf is one which is observed by the people at large without there being any indication in the Shari'ah that it contravenes any of its principles. The disapproved custom is also practiced by the people but there is evidence to show that it a repugnant to the principles of Shari'ah. We have already referred to the bedouin practice of disinheriting female relatives, and the prevalence of riba, which although commonly practiced are both in clear violation of the Shari'ah, and as such represent examples of al-'urf al-fasid. 231; Isma'il, Adillah, p. 393.] Proof (Hujjiyyah) of `Urf Although the ulema have attempted to locate textual authority for 'urf in the Qur'an, their attempt has not been free of difficulties. To begin with, reference is usually made to the Qur'anic text in sura al-Hajj (22:78) which provides: `God has not laid upon you any hardship in religion.' This is obviously not a direct authority on the subject, but it is argued that ignoring the prevailing `urf which does not conflict with the nusus of Shari'ah is likely to lead to adhering hardship on the people, which must be avoided. The next ayah which is quoted in support of `urf occurs in sura al-A'raf (7:199), but although this has a direct reference to `urf, difficulties have been encountered in identifying it as its main authority. This ayah, to which a reference has already been made, enjoins the Prophet to 'keep to forgiveness, and enjoin `urf, and turn away from the ignorant'. According to the Maliki jurist Shihab al-Din al-Qarafi, this ayah is explicit and provides a clear authority for `urf. According to this view `urf is clearly upheld in the Qur'an as a proof of Shari'ah and an integral part of it. 226.] Principles of Islamic Jurisprudence ~ Kamali 255 [18. Badran, Usul, p. [19. Qarafi, Furuq, II, 85; Sabuni, Madkhal, p. 143; Badran, Usul, p. The generality of ulema, however, maintain the view that the reference to `urf in this ayah is to the literal meaning of the word, that is, to the familiar and good, and not to custom as such. But then it is added: bearing in mind that approved custom is normally upheld by people of sound nature and intellect, the Qur'anic concept of 'urf comes close to the technical meaning of this word. The literal or the Qur'anic meaning of 'urf, in other words, corroborates its technical meaning and the two usages of the word are in essential harmony with on...
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