Custom is a matter on which a community of people agree in the course of their daily life, and common usage is an action which is repeatedly performed by individuals and communities. When a community makes a habit of doing something, it becomes its common usage. So the custom and common usage of a community share the same underlying idea even if what is understood by them differs slightly.
Maliki fiqh, like Hanafi fiqh, makes use of custom and considers it a legal principle in respect of matters about which there is no definitive text. In fact it has an even deeper respect for custom than the Hanafi school since, as we have seen, public interest and general benefit are the foundation of Maliki fiqh in coming to decisions and there is no doubt that respect for a custom which contains no harm is one of the types of benefit. It is not valid for any faqih to leave it: indeed, it is obligatory to adopt it. We find that the Malikis abandon analogy when custom opposes it. Custom makes the general specific and qualifies the unqualified, as far as the Malikis are concerned.
It appears that the Shafi’ites also takes custom into consideration when there is no text. If text dominates in its judgement because people are subject to and do it by way of familiarity and habit. Nothing can prevent them from adopting it except a prohibiting text. Where there is no prohibiting text, then it must be adopted. We find that Ibn Hajar stated that custom is acted on it when there is nothing in the custom contrary to a text.
Al-Qurtubi observed that making use of custom in this way is taken from an instance when the Prophet, may Allah bless him and grant him peace, said to the wife of Abu Sufyan, “Take from the property of Abu Sufyan what is adequate for you and your child in a normal manner.” In this hadith custom is clearly made the basis of a legal decision. This is not the case with the Shafi’ites. Ibn Hajar replies to this by saying that the Shafi’ites forbid acting by custom when it is opposed to a legal text, or is not suggested by it. This indicates that the Shafi’ites occasionally adopt custom, but with the precondition that a legal text suggests it or does not contradict it. Therefore we can divide custom in respect to the usage of the fuqaha’ into three categories:
1. Custom which is adopted by all the fuqaha’. It is the custom which is indicated by a text. In this case, it is adopted by agreement.
2. Custom which is prohibited by an unequivocal text of the Lawgiver or it is obligatory that it be overlooked as confirmed by a text. This type of custom is not respected nor adopted by consensus. It is general corruption which must be brought to an end. Silence on it is silence about commanding the correct and forbidding the incorrect and being content with sin and transgression.
3. Custom in which there is no established prohibition nor is it suggested or indicated by a text. The Malikis and Hanafis consider it an independent principle. According to the Hanafis, general custom makes the general specific, qualifies the unqualified, and custom is put ahead of analogy. The Malikis say that custom specifies the general and qualifies the unqualified since they consider custom to be one of the categories of benefit.
Custom or customary usage plays a great role in Maliki fiqh. It explains expressions since expressions are explained according to linguistic custom or usage rather than customs in actions. Ash-Shatibi says about this:
“Customs include those whose expression varies in meaning, and so the expression may change its meaning in relation to the same people, like the difference of terminology according to the usage of artisans in their crafts which differs from the usage of the majority, or in respect of the predominant usage in some ideas so that that expression which previously had a certain meaning which might have been understood as meaning something else. The judgement is assigned to what is customary in respect to its normal usage rather than an abnormal usage. This is the sense which is current often in oaths, contracts and divorce by indirect words.” (Al-Muwafaqat, pt. 2, p. 198)
As expressions are explained according to customs, so customs have an effect on contracts. When the custom in marriage is to pay the bride-price before consummation, it is considered as long as there is no text contrary to it. If there is a custom that a type of sale is by cash and not credit or the reverse, or for a known term rather than without it, that commercial custom is considered as long as there is no text contrary to it. This resembles that on which judicial decision occurs by respecting the custom of commerce in cases between them and its consideration as a confirmed legal basis in their dealings.
In al-Furuq, al-Qarafi devotes a section to clarifying of the custom in contracts which affect it. Thus if there is an non-specific contract, it is considered to involve equal shares. A contract for land includes the trees and buildings, a contract for a building includes the earth, a contract on a house which includes its doors, stairs, and shelves. A murabaha contract includes within the basis for the price the wage for sewing, embroidery and all ornament. The contract on the tree includes the earth and fruit which is pollinated, and so forth, as he said in mentioning these questions and others.
This is all based on customs. Were it not for customs, this would be purely arbitrary and selling what is unknown, and risk in the price is not permitted by agreement. So these matters are based on the customs. When the custom changes or is nullified, then these fatwas become invalid and it is unlawful to give fatwa accordingly. Reflect on that. Study the fatwas in these customs and how they are received as the legal tender of every age is studied and utility is specified from the items hired when usage is silent about them, then they are used by the custom for the intended use of them.
Customs fall into two categories: first, established customs which do not differ in times or places. They are customs derived from the natural human form, and that to which human nature calls, like eating, drinking, sleep and other things. The second category are customs which vary with different people and different lands. Ash-Shatibi mentioned that section and illustrated it, saying:
“Customs can change in it from good to ugly and the reverse, like uncovering the head. That varies in different regions. In eastern lands it is considered offensive tor those of manliness it is ugly but not in western lands. So the legal judgment varies according to that. Thus it detracts from good character in the view of the people of the east but not with the people of the west.” (al-Muwafaqat, pt. 2, p. 198)
So custom varies in many cases, because the second category is larger than the first. When judgements come in accordance with these customs and they are the basis of judgement in them, does the judgement change when they change? Is the change considered as part of the Maliki school?
Al-Qarafi was asked this question and answered it. We will quote you the question and its answer in full because it shows the extent of the effect of custom on judgements in that school and the amount of its profusion. He says about selecting fatwas and judgements:
“These judgements in the schools of ash-Shafi’i, Malik and others were subordinate to customs and the prevailing customary usage in the time when the scholars made these judgements. When those customs change, then are these fatwas which are recorded in the books of the fuqaha’ invalid and fatwas given according to what is demanded by the new customs or do we say that we are imitators and we cannot produce a law since we are not qualified for ijtihad and so we have to give fatwa according to what is transmitted from the mujtahidun?
“The answer is that to confirm the judgements which are perceived through customs when those customs have changed is contrary to consensus and is ignorance of the deen. Indeed, all that is in the Shari’a follows customs and the judgement in it changes according to the change of custom to what the new custom demands. That is not a new ijtihad on the part of the imitators so that the qualifications for ijtihad are preconditional in it. It is a rule on which scholars strive agree. We follow them in that without undertaking a new ijtihad. Do you not see that in the case of business transactions when a price is designated, they apply that to the usual form of currency? When the custom is a particular sort of money, they apply it to that. When the custom moves to another form of currency, then the custom moves to it and the first is nullified since custom has moved from it. It is like that with the application in bequests, oaths, and all the areas of fiqh which depend on customs. When the custom changes, then the judgements in those areas change. It is the same with claims when the statement taken is that of the person who claims something because it was the custom. Then the custom changed and the statement taken was no longer that of the claimant. Indeed, the case was reversed. It is not a precondition that the custom change. If we leave our land for another land whose customs are different from the land we were in, we only give fatwa by its custom rather than the custom of our land. Part of this is what is related from Malik: When a couple quarrel about the receipt of the bride-price after consummation, then the statement taken is that of the husband when the basis is lack of receipt. Qadi Isma’il said: ‘This was their custom in Madina: that a man did not go in to his wife until she had received all of the dower. Today the custom is different. So the statement taken is that of the woman with the oath because of the change of customs.
“Since this is established, I will mention in that some judgements in which what is perceived is the custom is the basis of the fatwa and the actual situation differs from that today and so it is incumbent to change the judgment according to what the new custom demands.”
After that he gives examples of the custom which makes expressions specific and explains that. He gives three examples:
1. Some of the expressions in the wadi’a (reduction): The custom demands that the two people involved in the transaction agree that the reduction is one in ten for twenty, then they mean that if the price is eleven, then its price is ten. The last expression means that it is reduced to half price. Al-Qarafi said about that: “This custom is nullified. This expression does not convey that meaning today at all. Most fuqaha’ do not understand it, let alone the common people, because it has no custom and nothing specific is understood from it in respect of language. So when this contract occurs in transactions, the contract must be invalid. It is not their custom to use it at all because over the course of our entire lives, we have not heard it except in the books of fiqh. We have not heard it in transactions. When the price is not known by custom or not by language, the contract is invalid.
2. The second example is in tawliya (resale at cost price) and murabaha (resale with specification of gain) when he says, “I have sold to you along with what it cost me,” then he said that the sale is valid. The seller has, along with the price, the wages for bleaching. embroidery, sewing, dyeing and the like of that which has a specific value. He is entitled to his share of the profit if he names a profit for every ten, and he is not entitled to what does not have a specific value unless it obliges an increase in the market for it and increases the price. He does not have a portion of the profit for the hire of transport in transporting it and the like and what has no effect in the market. He does not have profit for things like concealment, locking up, the rent for the house, and the personal expenses of the vendor. These items are not meant linguistically by his words, “what is cost me”. The sale is value by this statement if the expression demands it by custom and so the price becomes known by custom and there is no retraction then. So this price is unknown and so we do not give a fatwa of its validity and details by the books since the custom has changed.
3. He mentioned what is in the Mudawwana that when someone says to his wife, “You are unlawful to me, or devoid of obligation, or exempt,” or “I have given you to your family,” the treble divorce is obliged and the claim that he meant less than three does not help him. This is based on this expression in the customary usage to remove the bond and it is famous that its number is three.
Although this is established, you know that you will not find any people who use this earlier form in that way. Times have changed and no one says to his wife when he wants to divorce her, “You are devoid of obligation” or “I have given you to your family.” These expressions are not used to end marriage nor to designate the number of the divorce. The custom in these expressions is completely negated, When the custom is negated, only the language remains.” (Al-Ahkam fi Tamyiz al-Fatawa, p. 70)
Many judgements are based on ‘urf because in many cases it coincides with public interest and public interest is indisputably a fundamental principle in Malik’s school. Another reason is that custom necessarily entails people’s familiarity with a matter, and so any judgement based on it will receive general acceptance whereas divergence from it will be liable to cause distress, which is disliked in the judgement of Islam because Allah Almighty has not imposed any hardship on people in His deen.
Allah Almighty prescribes what normal people deem proper and are accustomed to, not what they dislike and hate. So when a custom is not a vice and is respected by people, honouring it will strengthen the bond which draws people together because it is connected to their traditions and social transactions whereas opposition to it will destroy that cohesion and bring about disunity.
This especially applies where patterns of speech are concerned, since natural lucidity demands that expressions be understood in accordance with customary usage. It is also desirable to apply custom where commercial contracts are concerned as long as there is nothing unlawful in doing so. If there is, however, it is of course obligatory to not adhere to custom.