ʿUrf
ʿUrf ( Arabic عرف In Arab tribal society and in Islamic legal theory, ` ` that which is generally recognized '' denotes unwritten customary law that cannot be traced back to the Koran or the norms of the Prophet Mohammed , or to the consensus or judgment of Islamic scholars .
Quran and early interpretations
The term ʿUrf already occurs in the Koran. So it says in sura 7 : 199: "Exercise forbearance, command the ʿurf and turn away from the foolish." The term is derived from the same Arabic word root as the expression al-maʿrūf ('the right, the recognized') in the Koranic phrase: Command the right and forbid the reprehensible .
From the above Koranic statement it was deduced in Islamic legal theory that ʿUrf has a normative and authoritative character, but the differentiation from other legal sources was not always very clear. Abū Yūsuf (d. 798), for example, did not regard ʿUrf as a separate legal source, but as part of the Sunnah , which, in his opinion, encompassed not only the legal practice of the prophet, but also general legal usage. There were also overlaps with the Idschmāʿ ("consensus"), but the demarcation was made in such a way that Idschmāʿ should only represent the consensus of legal experts, while ʿUrf is the common behavior of the general public.
Upgrade to your own legal source
ʿUrf played an important role early on in sales law. Here the principle applied : "What is established by ʿUrf is like that which is established by a contractual clause" ( aṯ-ṯābit bi-l-ʿurf ka-ṯ-ṯābit bi-š-šarṭ ). The Hanafi scholar az-Zāhidī (d. 1260) attached much greater importance to the ʿUrf later . In his legal work Qunyat al-Munya he took the view that the Mufti and Qadi were not allowed to judge solely according to the general view of Madhhab , but that they should always take the Urf into account. The Hanafi scholar Ibn Nujaim (d. 1563) said that the ʿUrf should also be used as a basis for judging oaths ( aimān ). Ibn Nujaim was also the first scholar to describe the upgrading of the Urf to an independent legal source. So he said in his legal work al-Ašbāh wa-n-naẓāʾir : “Know that in fiqh one falls back on habit ( ʿāda ) and custom ( ʿurf ) for so many problems that one has made it a legal source ( aṣl ). "
Hanafi scholars dealt most intensively with the Urf. They divided it into different subspecies by 1. differentiating between language usage ( ʿurf qaulī ) and commercial usage ( ʿurf ʿamalī ); 2. between general custom ( ʿurf ʿāmm ) and special custom ( ʿurf ḫāṣṣ ), i.e. a custom that was local, social or otherwise limited, and 3. between healthy custom ( ʿurf ṣaḥīḥ ) and bad custom ( ʿurf fāsid ). They considered any custom that contradicted the four other sources of law to be a bad practice. It should not be allowed to be used as an argumentative basis in law. There were differences of opinion regarding the position of the special custom. However, some scholars judged that it had to be taken into account and that general legal rules could be specified.
The upgrading of the ʿUrf as a source of law made it possible in the early modern period in the Hanafi areas to adapt Islamic norms to social realities and initiated a process of "practical secularization of Islamic law". This process came to an end with the publication of the Ottoman Mecelle , which contained ten legal maxims on the zumUrf in its introduction . One of these maxims reads: “Determination by ʿUrf is to be judged like a determination by sacred textual evidence ” ( At-Taʿyīn bi-l-ʿurf ka-t-taʿyīn bi-n-naṣṣ ).
Meaning in the present
Even today, many Muslim scholars argue with ʿUrf, but there are different views regarding its place in the overall system of legal sources, which are also related to different Madhhab traditions. Because of the great role of the ʿurf in Islamic law, knowledge of the prevailing customs and traditions is regarded as a prerequisite for practicing ijtihād .
literature
- Haim Gerber: Islamic Law and Culture 1600-1840. Suffering u. a. 1999. pp. 105-116.
- Thomas Gerholm, Hadia Mubarak: Art. "ʿUrf" in John L. Esposito (ed.): The Oxford Encyclopedia of the Islamic World. 6 Vols. Oxford 2009. Vol. 5, pp. 491-495.
- Wael Hallaq : "A Prelude to Ottoman Reform: Ibn 'Abidîn on Custom and Legal Change," in I. Gershoni et al. (eds.): Histories of the Modern Middle East: New Directions. Lynne Rienner, Boulder & London, 2002. pp. 37-61.
- Baber Johansen: "Coutumes locales et coutumes universelles: aux sources des règles juridiques en droit musulman hanéfite" in Annales islamologique 27 (1993) 29-35. Reprinted in B. Johansen: Contingency in a Sacred Law. Legal and Ethical Norms in the Muslim Fiqh . Suffering u. a. 1999. pp. 163-171.
- Birgit Krawietz: Hierarchy of Legal Sources in Traditional Sunni Islam . Berlin 2002. pp. 291-313.
- Gideon Libson, "On the Development of Custom as a Source of Law" in Islamic Law and Society 4 (1997) 131-155.
- Gideon Libson: Art. "ʿUrf 1. The status of custom in Islamic law" in The Encyclopaedia of Islam. New Edition Vol. X, pp. 887b-888b.
- Sebastian Maisel: The customary law of the Bedouins: the importance of Urf in the legal concepts of tribal groups in the north of the Arabian Peninsula . Lang, Frankfurt am Main, 2006.
- FH Stewart: Art. "ʿUrf 2. Arab customary law" in The Encyclopaedia of Islam. New Edition Vol. X, pp. 888b-892a.
- Christoph Werner: "'Urf or customary law in Iran: sources, practice and terminology", in Michael Kemper and Maurus Reinkowski (eds.): Legal pluralism in the Islamic world . De Gruyter, Berlin, 2005. pp. 153-175.
Individual evidence
- ↑ Cf. Krawietz 296f.
- ↑ Cit. Libson: "ʿUrf 1. The status of custom in Islamic law" in EI² Vol. X, p. 888a.
- ↑ See Hallaq: "A Prelude to Ottoman Reform". 2002, p. 46.
- ↑ Cf. Ibn Nuǧaim: al-Ašbāh wa-n-naẓāʾir . Ed. Muhammad Muṭīʿ al-Ḥāfiẓ. Dār al-Fikr, Damascus, 1983. pp. 107f.
- ↑ Cit. Libson: "ʿUrf 1. The status of custom in Islamic law" in EI² Vol. X, p. 888a.
- ↑ See Krawietz 294-302.
- ↑ See Johansen 199, 165 and Krawitz 298.
- ↑ See Gerber 105
- ↑ See Krawietz 311.
- ↑ See Krawietz 307f.
- ↑ See Krawietz 311.