Shari'ah and custom in the formative period
Repeated references to Urf and ma 'rddf, in the sense of both what is commendable and what is customary within the foundational sources, inspired juristic discussions on a wide range of issues under the general theme of the relationship between Shari ah and custom.
For example, several verses in the Qur’an refer to Urf as a standard of evaluation as is the case with the proper amount of maintenance to be provided for breastfeeding mothers (2:233) as well as assessment of equitable mutual rights and duties between spouses (2:228). In addition to these direct and explicit references to ‘Urf, several other texts make implicit references to ‘Urf for the clarification of undefined categories such as average standard of living (5:89; 65:7) and the definition of moral standards expected of acceptable witnesses (65:2).9 Similarly, several Prophetic reports include references to custom as a basis for certain rules. One of the most famous examples is the case of salam, which is a type transaction in which the price is paid in advance for a commodity to be delivered at a future date. Although this type of transaction goes against a general rule prohibiting the sale of commodities that are not readily available at the time of contract, it was deemed permissible on the basis of common custom. In fact, reports indicate that the Prophet made this concession in the case of salam when he emigrated to Medina because it was a well-known transaction. The case of salam was used by later jurists in order to justify the permissibility of istisna ‘ (contract of manufacture), which involves commissioning a craftsman to produce a particular item. On the basis of textually based examples such as salam as well as other derived examples such as istisna ‘, jurists developed custom as a principle for the construction of numerous subsequent rules. Initially, these and many other similar examples were subsumed under the general theme of istihsdn, which was usually contrasted with analogical reasoning when the latter results in burdensome conclusions. A jurist may resort to istihsan in order to avoid such burdensome conclusions on the basis of another text, Ijma ‘, custom, or necessity. Although istihsan has consistently been associated with the Hanafi school, the Maliki school was also famous for its use of this doctrine.10 It is important to note here that some jurists predicate the permissibility of istisna ‘ on consensus, while others do so on the basis of general custom. This in turn reveals the close relationship between Ijma ‘ and custom in jurisprudential debates.11 The roots of this relationship go back to a particular report that is usually cited to prove the authority of these two concepts: ‘What Muslims deem good is good in the sight of God’. This report, however, is traced to its narrator, the companion 'Abdullah b. Mas'ud rather than the Prophet himself. The jurists, however, distinguish between Ijma ‘ and ‘Urf on several grounds: Ijma ‘ refers to the agreement of qualified jurists while ‘Urf refers to the agreement of people in general; Ijma ‘ is considered binding for subsequent generations, while ‘Urf is considered binding only for those who recognize it; Ijma ‘ requires considered deliberation on the issue in question, while ‘Urf emerges in society and it is adopted on the basis of its popularity and circulation; jurists cannot violate an established Ijma ‘, while parties to a contract can stipulate a condition that contradicts a common practice; a valid Ijma ‘ is one that is based on a textual source, while ‘Urf does not have to. Another related concept has been the Medinan practice (‘amal), which was formulated by Malik b. Anas and remained one of the main distinctive features of the Maliki school. For Malik, a prevalent practice in the hometown of the Prophet should be considered normative because it must be indicative of a Prophetic Sunna either explicitly or implicitly.12 It should be noted that the Medinan 'amal, which is considered normative, is the one that was established during the lifetime of the Prophet. The term, however, continued to be used within the Maliki school to refer to prevalent practices which are considered normative in general even subsequently outside of Medina. It is 'amal in this sense that is often compared to ‘Urf and even used as its synonym.13Apart from references in the foundational sources to custom (‘Urf) in the sense of common practices, particularly in the area of transactions (mu‘dmaldt), other meanings gradually emerged with the cumulative development of the normative tradition, particularly in the area of legal theory. One important example was the concept of custom (‘dda) in the sense of established and recurrent norms in the universe. It was used as a type of rational proof in several debates on issues such as religious-legal obligation (takldf). These debates were for the most part inspired by early theological debates centring around the general theme of defending revelation and religious claims on rational grounds. Early theologians often made the argument that the veracity of religious beliefs has to be proven primarily by reason because revelatory sources cannot be used to prove themselves. For example, the Ash'ari- Shafi'i theologian-jurist Imam al-Haramayn al-Juwayni (d. 478/1085) divided the sources of religious knowledge into three main types: reason, miracles and textual sources (i.e. the Qur’an, Sunna and Ijma' respectively).14 While reason establishes necessary (intuitive) knowledge, miracles prove the veracity of Prophets, and subsequently religious texts. The role of custom is evident in the fact that the veracity of miracles is dependent on their ability to break with the ordinary, the conventional and the customary.15 One of the important theological debates highlighting this use of custom in verifying the Prophets’ miracles is the debate on causality. Since the Qur’an speaks repeatedly about the God-given ability of the Prophets to break the conventional order of the universe in the form of miracles, Muslim theologians, particularly the Ash'aris, discussed the relationship between causes and effects in terms of customary association by means of which effects occur with, rather than because of, their causes.16 God can break this customary association at will, and therefore, this causal connection between causes and effects should not be seen as necessary or independent (of God’s will).
This divine cosmic custom manifested in the relationships governing the different natural objects was also extended to include the human condition as well as the human experience of the created world. Recognition of this notion of custom as a type of rational proof in juristic discourses can be explored in debates concerning verification of reports, particularly of the successive type (mutawdtir) and also on establishing the authority of consensus (Ijma j. While these two concepts are often vindicated on the basis of textual grounds, some jurists appealed to custom in order to establish their feasibility and also authority. For example, in his discussion on the types of reports, al-Juwayni distinguished three main types: reports that can be categorically trusted; reports that can be categorically rejected; and reports that cannot be either trusted or rejected categorically. The first type includes definitive reports denoting necessary knowledge and those that are conveyed through continuous successive narration (tawdtur) as supported and confirmed by established conventions and credible circumstantial evidence. A successive report is one that was conveyed by such a large number of narrators that it would be inconceivable to discredit all of them. It is this type of reports that is used to support the Prophets’ miracles as they were successively reported from one generation to the other.17 The role of custom in verifying and supporting Prophets’ miracles, therefore, is twofold. On the one hand, custom indicates the distinctive character of a miracle; namely, its ability to break conventional norms and common customs. On the other hand, custom also supports the veracity of a miracle; namely, its reliance on customarily credible reporting through succession (tawatur). The second (discredited) type includes reports that contradict what is deemed necessary knowledge, conventional norms; or established customs. For example, if a report purports to convey a major event that requires a large number of witnesses, it must be corroborated by multiple supporting reports by several narrators rather than a single isolated report. If it fails to secure such corroborative evidence, it must then be rejected due to its contradiction of common conventions. The third type includes the majority of solitary (dhdd) reports that denote speculative rather than definitive knowledge.18 In major part, the argument used to support the rational feasibility and also authority of tawad tur is also used to support the feasibility and authority of Ijma ' especially with regard to major fundamental principles rather than individual speculative rulings. But even in the case of the latter, Ijma ' would not be inconceivable. For example, in support of the feasibility of Ijma al-Juwayni put forth the argument that consensus of the jurists goes against the general tendency of reasonable individuals to disagree rather than to agree. Earlier precedents of consensus must, therefore, be based on strong credible supporting evidence. He does not even rule out the possibility that this original supporting evidence might itself over time be lost or forgotten while the resultant consensus remains intact.193