ʿUrf (Arabic:العرف) is anArabicIslamic term referring to the custom, or 'knowledge', of a given society. It can also be translated ascustomary law.[1] To be recognized in an Islamic society,ʿurf must in principle be compatible withSharia,[2] but in practice tensions sometimes exist between the representatives ofʿurf and those of Sharia.[3] When applied, it can lead to the deprecation or inoperability of a certain aspect offiqh (Islamicjurisprudence).[2]
ʿUrf is a source of Islamic legal rulings where there are no explicit primary texts of theQur'an and Sunnah specifying the ruling, making it a form ofcustomary law.ʿUrf can also specify something generally established in the primary texts.
The term'ʿurf', meaning "to know", refers to the customs and practices of a given society.
ʿUrf was first recognized byAbu Yusuf (d. 182/798), an early leader of theḤanafīschool, though it was considered part of thesunnah, i.e genuine and not a formal source. Lateral-Sarakhsī (d. 483/1090) opposed it, holding that custom cannot prevail over a written text.[4]
The idea 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.'"[5]
Although this was not formally included in Islamic law,[4] the Sharia recognizes customs that prevailed at the time ofMuhammad but were not abrogated by theQur'an or theSunnah (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 byAllah (seeGod in Islam). According to some sources,ʿurf holds as much authority as'ijma (consensus), and more thanqiyas (legal reasoning by analogy).ʿUrf is the Islamic equivalent of "common law".[6]
In the application ofʿurf, 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 toqiyas, custom is given preference.Jurists also tend to, with caution, give precedence to custom over doctoral opinions of highly esteemed scholars.[6]
In some countries such asEgypt, marriage in theʿurfi way refers to a form ofcommon law marriage that does not involve obtaining official papers issued by the state (زواج عرفيZawāj ʿUrfi). The validity of that type of marriage is still under debate, and women may have fewer rights than under an officially-registered marriage.[7]
In parts ofYemen whereʿurf plays a significant role (related to the continuinginfluence of tribal lineages in the country), it often coexists with Sharia. However,ʿurf is promoted by the tribalsheikhs, whereas Sharia judges are eitherqāḍīs orsādah. 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.[3] Historically, theZaydiImams 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" andʿurf to tribal matters.[8]
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