Islamic Law and Culture, 1600-1840

By Haim Gerber | Go to book overview

CHAPTER SIX
ʿURF (CUSTOM)—THE PRACTICAL SECULARIZATION
OF ISLAMIC LAW

An important measure of innovative legal activity entered Islamic law via the gate of ʿurf or local custom.1 Thus many of al-Ramlī's fatwas point to the important role of ʿurf. A very simple example relates to a discussion on the nature of a salary (waẓīfa) from a waqf. The questioner asks whether the sum referred to as salary is equal to the value of the coins at the time of the creation of the endowment or at an earlier, classical time. Al-Ramlī reasoned that in the absence of proof to the contrary, the reference is to the time of the erection of the endowment, since, according to a famous and probably early legal maxim which he often cites, “whatever is dictated by custom (ʿurf) is as if dictated by law.”2 Another example is a case in which al-Ramlī was asked about presents and services that people in a certain place were in the habit of donating to their future brides, such as hairdresser money (māshiṭa), money for dyeing the hair with henna, or money for whitening their copper vessels—if all this is customary in an area, does the practice become obligatory on any future groom? Al-Ramlī responded in the affirmative, again giving the justification that custom is as valid as law.3 In another case the mufti was asked about the custom of giving people presents at certain celebrations and on their return from the ḥajj. Is it possible to expect a legally enforceable reciprocity of such presents in the future? Again, the mufti answers in the affirmative, citing the

____________________
1
For the role of ʿurf in Islamic law see Gideon Libson, “On the Development of Custom as a Source of Law in Islamic Law, ” Islamic Law and Society 4 (1997): 131–55; Baber Johansen, “Coutumes locales et coutumes universelles en droit musulman Hanefite, ” Annales Islamologiques 27 (1993): 29–35. For an example of ʿurf in practice see A. Layish, Divorce in the Libyan Family (New York: New York University Press, 1991).
2
Al-Ramlī, I, 162: al-maʿrūf ʿurfan kaʿl-mashrūṭ sharṭan. Cf. Libson, “On the Development of Custom, ” 153; Another version, al-maʿrūf ʿurfan kaʿl-mashrūṭ sharʿan, is cited by Johansen, 'Coutumes,' 30.
3
Al-Ramlī, I, 30. Cf. ibid., 111.

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