Defition of Customs
In the words of Sir Abdur Rahim:
"Those customs and usage of the people of Arabia, which were not expressly repealed during the life time of the Prophet (PBUH) are held to have been sanctioned by the lawgiver by his silence. Customs is spoken of as being the arbter of analogy."
Custom is called Urf, taamul and adat.
It is an important source of Law. In Islamic Law of contract , a transaction by custom is legally operative e. g. a salam contract.
Accorording to Muhammad Taqqi Amini,
The Holy Quran and Sunnah acknowledged custom as a source of Law.
According to Holy Quran :
"Hold to forgiveness command what is right: But turn away from the ignorant."
The Holy Prophet(PBUH) said:
"You know better the wordly affairs".
Kinds of Customs
There are two kinds of Cusoms:
Urf Khas pertains to a customs prevalent in a particular area, trade or profssion.
Uruf AAm is that type of custom which is prevalent generally. It does not pertain to a particular area, trade of profession.
A custom is held valid if it fulfils the following requirments:
1. It must be generally prevalent in the country at large. Clause 42 of Majallah also confirms this principle. It must not be a mere local usage.
2. An occasional practice isnot valid. A custom must be continuous.
3. "A custom may not be ancient but must be in general practice.
4. A custom prevalent in a country cannot affect the law of another country.
5. A custom has a force of law so long as it prevails. Thus the custom of one age has no force in another age.
6. Custom must not be opposite to a clear text of the holy Quran and Sunnah.
7. Custom must be reasonable. It must not be repugnant to statutory law.
Dr. Muhammad Hamidullah says
That what the Prophet (PBUH) tolerated among his companions redered it valid and lawful. The very toleration tantamounts to recognition of custom, no matter old or new, as a source of law.
The orientalists are of the view that the Muslim jurists adopted the customs of pre-Islamic Arabia and gave them the force of law. But this view is wrong. Riba (interest) was prevalent in pre-Islamic period but Islam rejected.
According to Sir Abdur Rahim:
Some customs adopted from the Hindus relating to succession and inheritance were declared as illegal being opposite to Islamic Law.
Joseph schacht rightly says:
"As a point of historical fact, custom contributed a great deal to the formation of Islamic Law."
According to prof. N. J. Coulsin:
"Within the framework of recognized usul, however, Uruf (literally "what is known") about a thing, and therefore, lossely "customs" operated as a principle of subsidiary value.
In so acting the courts were not according any intrinsic force to custom as such, but were accepting the external facts of that custom on the board ground of public necessity."
[God Gave And Forgave.....Man Get And Forget]