Urf
Template:Short description Template:Other uses Template:Italic title Template:Usul al-Fiqh
Template:Transliteration (Template:Langx) is an Arabic Islamic term referring to the custom, or 'knowledge', of a given society. It can also be translated as customary law.<ref>Template:Cite encyclopedia</ref> To be recognized in an Islamic society, Template:Transliteration must in principle be compatible with Sharia,<ref name="H. Patrick Glenn 2007, pg. 201">H. Patrick Glenn, Legal Traditions of the World. Oxford University Press, 2007, pg. 201.</ref> but in practice tensions sometimes exist between the representatives of Template:Transliteration and those of Sharia.<ref name=brandt>Template:Cite book</ref> When applied, it can lead to the deprecation or inoperability of a certain aspect of fiqh (Islamic jurisprudence).<ref name="H. Patrick Glenn 2007, pg. 201" />
Template:Transliteration is a source of Islamic legal rulings where there are no explicit primary texts of the Qur'an and Sunnah specifying the ruling, making it a form of customary law. Template:Transliteration can also specify something generally established in the primary texts.
Overview
- Terminology
The term Template:Transliteration, meaning "to know", refers to the customs and practices of a given society.
- History
Template:Transliteration was first recognized by Abu Yusuf (d. 182/798), an early leader of the Ḥanafī school, though it was considered part of the Template:Transliteration, i.e genuine and not a formal source. Later al-Sarakhsī (d. 483/1090) opposed it, holding that custom cannot prevail over a written text.<ref name="UrfEI" />
- Scriptural basis
The "maxim" that custom is an authoritative source for Islamic law "appears in the Quran and Hadith." One hadith narrated by Ibn Mas'ud stated 'Whatever the Muslim saw as good is [considered] good by God, and whatever the Muslim saw as evil is evil according to God.'" <ref name="IL&E-92">Template:Cite book</ref>
Relationship to Sharia
Although this was not formally included in Islamic law,<ref name="UrfEI">"Urf", Encyclopaedia of Islam</ref> the Sharia recognizes customs that prevailed at the time of Muhammad but were not abrogated by the Qur'an or the Sunnah (called "Divine Silence"). Practices later innovated are also justified, since Islamic tradition says what the people, in general, consider good is also considered as such by Allah (see God in Islam). According to some sources, Template:Transliteration holds as much authority as Template:Transliteration (consensus), and more than Template:Transliteration (legal reasoning by analogy). Template:Transliteration is the Islamic equivalent of "common law".<ref name="Urf">Hasan (2004), p. 169-71</ref>
In the application of Template:Transliteration, custom that is accepted into law should be commonly prevalent in the region, not merely in an isolated locality. If it is in absolute opposition to Islamic texts, custom is disregarded. However, if it is in opposition to Template:Transliteration, custom is given preference. Jurists also tend to, with caution, give precedence to custom over doctoral opinions of highly esteemed scholars.<ref name="Urf" />
In some countries such as Egypt, marriage in the Template:Transliteration way refers to a form of common law marriage that does not involve obtaining official papers issued by the state (Template:Lang Template:Transliteration). The validity of that type of marriage is still under debate, and women may have fewer rights than under an officially-registered marriage.<ref>Egypt: Customary marriage refworld.org</ref>
In parts of Yemen where Template:Transliteration plays a significant role (related to the continuing influence of tribal lineages in the country), it often coexists with Sharia. However, Template:Transliteration is promoted by the tribal sheikhs, whereas Sharia judges are either qāḍīs or sādah. Due to this different sociopolitical basis, the actual relationship between both legal phenomena varies from tribe to tribe. They can be seen as fully compatible or as two competing systems.<ref name=brandt/> Historically, the Zaydi Imams of Yemen often entered in conflict with local jurisdictions. In some cases they struck an agreement to separate the two jurisdictions by applying Sharia to "personal status matters" and Template:Transliteration to tribal matters.<ref>Template:Cite book</ref>
See also
References
Bibliography
- Template:Cite book
- Libson, G.; Stewart, F.H. "ʿUrf." Encyclopaedia of Islam. Edited by: P. Bearman, Th. Bianquis, C.E. Bosworth, E. van Donzel and W.P. Heinrichs. Brill, 2008. Brill Online. 10 April 2008