Customs in secularization of Islamic Law
In general sense, custom refers to a particular sort of thing which has been practised from time immemorial. The meaning of custom is closely connected with the existence of the society. The mere existence of a society, the mere plurality of individuals give rise to customs from which no single member of the totality can completely separate himself.
According to C.K. Allen in his book Law in the Making, our 'highly developed', 'civilized' societies of the modern world are just as replete with social customs as the 'primitive' societies of the past or the 'backward' societies of today. These customs are undoubtedly more rationalized and for the most part less superstitious than once they were. But they are quite as numerous and quite as powerful.
In varying degrees, they all possess a sanction. To disregard them involves some type of penalty. It may be slight and in some cases almost ineffectual, but it always exists. Society invariably takes a revenge for the breach of any of its conventions.
Some views regarding Urf or customs within the context of Islamic Law have been expressed by Hashim Kamali in his book Principles of Islamic Jurisprudence. In the words of Hashim Kamali, the terminology Urf is defined as recurring practices that are acceptable to people of sound mind. This explanation is clear on the point that Urf or custom, in order to constitute a valid legal basis for making legal decisions, must be sound and reasonable. Hence recurring practices among some people in which there is no benefit or which lead to prejudice and corruption are excluded from the definition and domain of Urf.
In order for considering an Urf as a valid and acceptable one, another significant condition to be fulfilled is that it must have been practised from time immemorial by the majority people of the society. In other words, the thing which is practised by only a few people of the society will not be treated as a valid Urf.
Some further requirements should be satisfied for the purpose of justifying the validity of an Urf or custom.
Firstly, Urf or custom must be in existence at the time when a transaction is concluded. In case of contracts and other commercial transactions, the emphasis is put only upon the customs which are prevalent at the time when the transaction is concluded and customs of subsequent origin will not be treated with equal seriousness.
Secondly, custom must not make a contravention into the clear stipulation of an agreement. The general rule is that contractual agreement prevails over custom and recourse to custom is only valid in the absence of an agreement. As the position of contractual agreement is stronger than a custom, if any conflict or contradiction arises between the two, according to the general rule it will normally be determined in favour of the former.
Another vital aspect regarding Urf or custom is that it has made open several channels to make Islamic Law more liberal and secular and thus it is also creating a wonderful scope to perform Ijtihad and at the ultimate stage it will make the process of contextualization much speedier.
Urf makes the concept of Islamic Law broader and more liberal, going beyond all kinds of stereotypes by welcoming new ideas specific to particular areas and no matter even if there is a variation from area to area.
Moreover, another significant concept to be taken seriously into account is that Urf works as a very important means to adopt new views with the change of time and with the change of circumstance and thus it leads to the practical secularization as well as contextualization of law without changing the internal divine framework of Islamic Law and without causing any single interruption into its true meaning and sanctity.
And most significantly there is no chance to consider Urf as an alien notion as naturally, it is an inbuilt mechanism within the purview of Fiqh and because of such presence of various channels in the form of Urf or customs the matter of Fiqh has adopted some dynamic features in order to be adjusted with the changing circumstances and thus created a wonderful path to boost the evolutionary process of Islamic Law.
Laws should be flexible enough to accept changes brought about by the time. If in spite of social developments the laws remain unchanged, the people will suffer hardships, where the Sharia is built on the premise of making the life of the believer easier and as far as possible free from all sorts of hurts and harms.
A S M Wasequzzaman is an LL.M. candidate at International Islamic University Malaysia.