14. ‘URF (CUSTOM)
As a noun derived from its Arabic root ‘arafa (to know), ‘urf literally means ‘that which is known’. In its primary sense, it is the known as opposed to the unknown, the familiar and customary as opposed to the unfamiliar and strange. `Urf and ‘adah are largely synonymous, and the majority of ulema have used them as such. Some observers have, however, distinguished the two, holding that `adah means repetition or recurrent practice, and can be used with regard to both individuals and groups. We refer, for example, to the habits of individuals as their personal `adah. But `urf is not used in this capacity: we do not refer to the personal habits of individuals as their `urf. It is the collective practice of a large number of people that is normally denoted by `urf. The habits of a few or even a substantial minority within a group do not constitute ‘urf.
‘Urf is defined as ‘recurring practices which are acceptable to people of sound nature.’ This definition is clear on the point that custom, in order to constitute a valid basis for legal decisions, must be sound and reasonable. Hence recurring practices among some people in which there is no benefit or which partake in prejudice and corruption are excluded from the definition of ‘urf. `Urf and its derivative, ma’ruf, occur in the Qur’an, and it is the latter of the two which occurs more frequently. Ma’ruf, which literally means ‘known’ is, in its Qur’anic usage, is equated with good, while its opposite, the munkar, or ‘strange’, is equated with evil. It is mainly in this sense that ‘urf and ma’ruf seem to have been used in the Qur’an. The commentators have generally interpreted ma’ruf in the Qur’an as denoting faith in God and His Messenger, and adherence to God’s injunctions. Thus the standard commentary on the Qur’anic phrase ta’muruna bi al-ma’ruf wa tanhawna ‘an al-munkar (Al-Imran, 3:110) given by the exegesis is that ‘you enjoin belief in God and in His Messenger and enforce His laws, and you forbid disbelief and indulgence in the haram.’ The same interpretation is given to the term ‘ ‘urf ‘ in the text which occurs in sura al-A’raf (7:199): `Keep to forgiveness, enjoin `urf [wa’mur bi’l-`urf] and turn away from the ignorant.’ According to the exegetes, `urf ‘in this context means fear of God and the observance of His commands and prohibitions. But occasionally, ma’ruf in the Qur’an occurs in the sense of good conduct, kindness and justice, especially when the term is applied to a particular situation. It is only when `urf or ma`ruf is ordered generally without reference to a particular matter, situation or problem that it carries the meaning of adhering to God’s injunctions. The reason for the position taken by the exegetes becomes apparent if one bears in mind Islam’s perspective on good and evil (husn wa-qubh) which are, in principle, determined by divine revelation. Hence when God ordered the promotion of ma’ruf, He could not have meant the good which reason or custom decrees to be such, but what He enjoins. This would also explain why `urf in the sense of custom is not given prominence in the legal theory of the usul al-fiqh, although it carries some authority, as we shall presently explain.
Custom which does not contravene the principles of Shari’ah is valid and authoritative; it must be observed and upheld by a court of law. According to a legal maxim which is recorded by the Shafi’i jurist al-Suyuti, in his well-known work, al-Ashbah wa al-Nazai’r, ‘What is proven by ‘urf is like that which is proven by a shar’i proof.’ This legal maxim is also recorded by the Hanafi jurist al-Sarakhsi, and was subsequently adopted in the Ottoman Majallah which provides that custom, whether general or specific, is enforceable and constitutes a basis of judicial decisions. The ulema have generally accepted ‘urf as a valid criterion for purposes of interpreting the Qur’an. To give an example, the Qur’anic commentators have referred to `urf ‘in determining the precise amount of maintenance that a husband must provide for his wife. This is the subject of sura al-Talaq (65:7) which provides: `Let those who possess means pay according to their means.’ In this ayah, the Qur’an does not specify the exact amount of maintenance, which is to be determined by reference to custom. Similarly, in regard to the maintenance of children, the Qur’an only specifies that this is the duty of the father, but leaves the quantum of maintenance to be determined by reference to custom (bi’l-ma`ruf) (al-Baqarah, 2:233). The Shari’ah has, in principle, accredited approved custom as a valid ground in the determination of its rules relating to halal and haram. This is in turn reflected in the practice of the fuqaha’, who have adopted ‘urf, whether general or specific, as a valid criterion in the determination of the ahkam of Shari’ah. The rules of fiqh which are based in juristic opinion (ra’y) or in speculative analogy and ijtihad have often been formulated in the light of prevailing custom; it is therefore, permissible to depart from them if the custom on which they were founded changes in the course of time. The ijtihad rules of fiqh are, for the most part, changeable with changes of time and circumstance. To deny social change due recognition in the determination of the rules of fiqh would amount to exposing the people to hardship, which the Shari’ah forbids. Sometimes even the same mujtahid has changed his previous ijtihad with a view to bringing it into harmony with the prevailing custom. It is well -known, for example, that Imam al-Shafi`i laid the foundations of his school in Iraq, but that when he went to Egypt, he changed some of his earlier views owing to the different customs he encountered in Egyptian society.
Customs which were prevalent during the lifetime of the Prophet and were not expressly overruled by him are held to have received his tacit approval and become part of what is known as Sunnah taqririyyah. Pre-Islamic Arabian custom which was thus approved by the Prophet was later upheld by the Companions, who often referred to it through statements such as ‘we used to do such-and-such while the Prophet was alive. Islam has thus retained many pre-Islamic Arabian customs while it has at the same time overruled the oppressive and corrupt practices of that society. Islam also attempted to amend and regulate some of the Arab customary laws with a view to bringing them into line with the principles of the Shari’ah. The reverse of this is also true in the sense that pre-Islamic customs of Arabia influenced the Shari’ah in its formative stages of development. Even in the area of the verbal and actual Sunnah, there are instances where Arabian custom has been upheld and incorporated within the Sunnah of the Prophet An example of this is the rulings of the Sunnah concerning the liability of the kinsmen of an offender (i.e. the `aqilah) for the payment of blood money, or diyah. Similarly, the Sunnah which regulates certain transactions such as mortgage (rahn), advance sale (salam) and the requirement of equality (kafa’ah) in marriage have their roots in the pre-Islamic custom of the Arabs. There are also vestiges of pre-Islamic custom in the area of inheritance, such as the significance that the rules of inheritance attach to the male line of relationship, known as the `asabah. As for the post-Islamic custom of Arabian society, Imam Malik has gone so far as to equate the amal ahl al-Madinah, that is the customary practice of the people of Madinah, with ijma`. This type of ‘amal ( lit.’ practice’) constitutes a source of law in the absence of an explicit ruling in the Qur’an and Sunnah. Custom has also found its way into the Shari’ah through juristic preference (istihsan) and considerations of public interest (maslahah). And of course, ijma itself has to a large extent served as a vehicle of assimilating customary rules which were in harmony with the Shari’ah, or were based in necessity (darurah), into the general body of the Shari’ah.
Conditions of Valid `Urf
In addition to being reasonable and acceptable to people of sound nature, `urf, in order to be authoritative, must fulfill the following requirements.
1. `Urf must represent a common and recurrent phenomenon. The practice of a few individuals or of a limited number of people within a large community will not be authoritative, nor would a usage of this nature be upheld as the basis of a judicial decision in Shari’ah courts. The substance of this condition is incorporated in the Majallah al-Ahkam al-`Adliyyah where it is provided that `effect is only given to custom which is of regular occurrence’ (Art. 14). To give an example, when a person buys a house or a car, the question as to what is to be included in either of these is largely determined by custom, if this is not otherwise specified in the terms of the agreement. More specifically, one would need to refer to the common practice among estate agents or car dealers respectively. But if no custom could be established as such, or there are disparate practices of various sorts, no custom could be said to exist and no judicial order may be based on it. Custom, in order to be upheld, must not only be consistent but also dominant in the sense that it is observed in all or most of the cases to which it can apply. If it is observed only in some cases but not in others, it is not authoritative. Similarly, if there are two distinct customary practices on one and the same matter, the one which is dominant is to be upheld. If, for example, a sale is concluded in a city where two or three currencies are commonly accepted and the contract in question does not specify any, the one which is the more dominant and common will be deemed to apply.
2. Custom must also be in existence at the time a transaction is concluded. In contracts and commercial transactions, effect is given only to customs which are prevalent at the time the transaction is concluded, and not to customs of subsequent origin. This condition is particularly relevant to the interpretation of documents, which are to be understood in the light of the custom that prevailed at the time they were written. Consequently, a rule of custom which is prevalent at the time the interpretation is attempted will not be relevant if it only became prevalent after the document was concluded. For it is generally assumed that documents which are not self-evident and require clarification can only convey concepts that were common at the time they were written.
3. Customs must not contravene the clear stipulation of an agreement. The general rule is that contractual agreements prevail over custom, and recourse to custom is only valid in the absence of an agreement. Since contractual agreements are stronger than custom, should there arise a conflict between them it will normally be determined in favour of the former. If for example the prevailing custom in regard to the provision of dower (mahr) in marriage requires the payment of one-half at the time of the conclusion of the contract and the remainder at a later date, but the contract clearly stipulates the prompt payment of the whole of the dower, the rule of custom would be of no account in the face of this stipulation. For custom is only to be invoked when no clear text can be found to determine the terms of a particular dispute; and whenever a clear text is in existence, recourse to custom will be out of the question. To give another example: the costs of formal registration in the sale of real property are customarily payable by the purchaser. But if there is a stipulation in the contract that specifically requires the vendor to bear those costs, then the custom will be of no account and the purchaser will not be required to pay the costs of registration.
4. Lastly, custom must not violate the nass, that is, the definitive principle of the law. The opposition of custom to nass may either be absolute or partial. If it is the former, there is no doubt that custom must be set aside. Examples of such conflicts are encountered in the bedouin practice of disinheriting the female heirs, or the practice of usury (riba) and wine-drinking. The fact that these are widely practiced is of no consequence, as in each case there is a prohibitory nass, or a command which always takes priority, and no concession or allowance is made for the practice in question. But if the conflict between custom and text is not absolute in that the custom opposes only certain aspects of the text, then custom is allowed to act as a limiting factor on the text. The contract of istisna`, that is, the order for the manufacture of goods at an agreed price, may serve as an example here. According to a Hadith, ‘the Prophet prohibited the sale of non-existing objects but he permitted salam (i.e. advance sale in which the price is determined but delivery postponed).
This Hadith is general in that it applies to all varieties of sale in which the object of sale is not present at the time of contract. Salam was exceptionally permitted as it was deemed to be of benefit to the people. The general prohibition in this Hadith would equally apply to istisna’ as in this case too the object of sale is non-existent at the time of contract. But since istisna’ was commonly practiced among people of all ages, the fuqaha have validated it on grounds of general custom. The conflict between istisna’ and the ruling of the Hadith is not absolute, because the Hadith has explicitly validated salam. If realisation of benefit to the people was the main ground of the concession that has been granted in respect of salam, then istisna` presents a similar case. Consequently the custom concerning istisna` is allowed to operate as a limiting factor on the textual ruling of the Hadith in that the Hadith is qualified by the custom concerning istisna’.
Another example where a general text is qualified by custom is when a person is appointed to act as agent (wakil) for another in respect of concluding a particular contract such as sale or marriage. The agent’s power to conclude the contract, although not limited by the terms of his appointment, is nevertheless qualified by the prevalent custom. In the matter of sale, for example, the expected price which represents the fair market price would be upheld, and the currency of the locality would be accepted in exchange.
According to a Hadith, the Prophet is said to have forbidden conditional sale, that is, sale with conditions that may not be in agreement with the nature of this contract. An example of this would be when A sells his car to B for 10,000 dollars on condition that B sells his house to A for 50,000 dollars. The Hadith quotes to this effect provides that the Prophet ‘forbade sale coupled with a condition’.
However, the majority of Hanafi and Maliki jurists have validated conditions which are accepted by the people at large and which represent standard custom. Here again the general prohibition is retained, but only conditions that are adopted by `urf are upheld; the general terms of the Hadith are, in other words, qualified by custom.
It would be useful in this connection to distinguish ‘urf from ijma’ , for they have much in common with one another, which is why they are sometimes confused. But despite their similarities, there are substantial differences between `urf and ijma` which may be summarised as follows:
1. `Urf materialises by the agreement of all, or the dominant majority of, the people and its existence is not affected by the exception or disagreement of a few individuals. Ijma` on the other hand requires, for its conclusion, the consensus of all the mujtahidun of the period or the generation in which it materialises. Disagreement and dissension has no place in ijma`, and any level of disagreement among the mujtahidun invalidates ijma`.
2. Custom does not depend on the agreement of the mujtahidun, but must be accepted by the majority of the people, including the mujtahidun. The laymen have, on the other hand, no say in ijma’ on juridical matters, which require the participation only of the learned members of the community.
3.The rules of `urf are changeable, and a custom may in course of time give way to another custom or may simply disappear with a change of circumstances. But this is not the case with ijma`. Once an ijma is concluded, it precludes fresh ijtihad on the same issue and is not open to abrogation or amendments. `Urf on the other hand leaves open the possibility of fresh ijtihad, and a ruling of ijtihad which is founded in ‘urf may be changed even if the `urf in which it originates does not.
4. Lastly, `urf requires an element of continuity in that it can only materialise if it exists over a period of time. Ijma` can, on the other hand, come into existence whenever the mujtahidun reach a unanimous agreement which, in principle, requires no continuity for its conclusion.
Types of Custom
Custom is initially divided into two types, namely verbal (qawli) and actual (fi’li). Verbal `urf consists of the general agreement of the people on the usage and meaning of words deployed for purposes other than their literal meaning. As a result of such agreement, the customary meaning tends to become dominant and the original or literal meaning is reduced to the status of an exception. There are many examples in the Qur’an and Sunnah of words which have been used for a meaning other than their literal one, which were as a result commonly accepted by popular usage. Words such as salah, zakah and hajj have been used in the Qur’an for purposes other than their literal meanings, and this usage eventually became dominant to the extent that the literal meaning of these words was consigned to obscurity. The verbal custom concerning the use of these words thus originated in the Qur’an and was subsequently accepted by popular custom. We also find instances of divergences between the literal and the customary meanings of words in the Qur’an where the literal meaning is applied regardless of the customary meaning. The word walad, for example, is used in the Qur’an in its literal sense, that is offspring’ whether a son or daughter’ (note sura al-Nisa’, 4:11), but in its popular usage walad is used for sons only. Another example is lahm, that is, meat, which in its Qur’anic usage includes fish, but in its customary usage is applied only to meat other than fish. Whenever words of this nature, that is, words which have acquired a different meaning in customary usage, occur in contracts, oaths and commercial transactions, their customary meaning will prevail. For example, when a person takes an oath that he will never ‘set foot’ at so-and-so’s house, what is meant by this expression is the customary meaning, namely, actually entering the house. In this sense, the person will have broken the oath if he enters the house while never ‘setting foot’, such as by entering the house while mounted. But if he only technically sets his foot in the house without entering it, he will not be liable to expiation (kaffarah) for breaking his oath. For this would not amount to what is customarily meant by ‘setting foot in the house.
Actual `urf consists of commonly recurrent practices which are accepted by the people. An example of actual ‘urf is the give-and-take sale, or bay’ al-ta’ati, which is normally concluded without utterances of offer and acceptance. Similarly, customary rules regarding the payment of dower in marriage may require a certain amount to be paid at the time of contract and the rest at a later date. The validity of this type of custom is endorsed by the legal maxim which reads: ‘What is accepted by ‘urf is tantamount to a stipulated agreement (al-ma’ruf `urfan ka’l-mashrut shartan).’ Consequently, actual `urf is to be upheld and applied in the absence of an agreement to the contrary.
`Urf, whether actual or verbal, is once again divided into the two types of general and special: al-urf al-`amm and al-‘urf al-khass respectively. A general `urf is one which is prevalent everywhere and on which the people agree regardless of the passage of time. A typical example of this is bay al-ta’ati to which reference has already been made. Similarly, the customary practice of charging a fixed price for entry to public baths is another example of general ‘urf, which is anomalous to the strict requirements of sale (as it entails consuming an unknown quantity of water) but the people have accepted it and it is therefore valid. It will be further noted that in their formulation of the doctrine of istihsan, the Hanafi jurists have validated departure from a ruling of qiyas in favour of general ‘urf. This has already been elaborated in the separate chapter on istihsan.
“Special custom” is ‘urf which is prevalent in a particular locality, profession or trade. By its very nature, it is not a requirement of this type of ‘urf that it be accepted by people everywhere. According to the preferred view of the Hanafi school, special ‘urf does not qualify the general provisions of the nass, although some Hanafi jurists have held otherwise. Consequently, this type of ‘urf is entirely ignored when it is found to be in conflict with the nass. The general rule to be stated here is that the ahkam of Shari’ah pertaining to the authority of ‘urf only contemplate the provisions of general ‘urf. A ruling of qiyas, especially qiyas whose effective cause is not expressly stated in the nass, that is, qiyas ghayr mansus al-‘illah, may be abandoned in favour of a general `urf, but will prevail if it conflicts with special ‘urf. A number of prominent ulema have, however, given the fatwa that special ‘urf should command the same authority as general ‘urf in this respect. The reason why general ‘urf is given priority over qiyas is that the former is indicative of the people’s need, whose disregard may amount to an imposition of hardship on them. Some Hanafi jurists like Ibn al-Humam have taught that ‘urf in this situation commands an authority equivalent to that of ijma’, and that as such it must be given priority over qiyas. It is perhaps relevant here to add that Abu Hanifah’s disciple, al-Shaybani, validated the sale of honeybees and silkworms as this was commonly practiced during his time despite the analogical ruling that Abu Hanifah had given against it on the grounds that they did not amount to a valuable commodity (mal). Furthermore, the ulema have recorded the view that since ‘urf is given priority over qiyas despite the fact that qiyas originates in the nusus of the Qur’an and Sunnah, it will a fortiori be preferred over considerations of public interest (maslahah) which are not rooted in the nusus. Having said this, however, it would seem that cases of conflict between general ‘urf and maslahah would be rather rare. For ‘urf by definition must be sound and reasonable, considerations which tend to bring ‘urfclose to maslahah. For after all, ‘urf and maslahah each in their respective capacities serve as a means for the realisation of public welfare and the prevention of hardship to people.
And lastly, from the viewpoint of its conformity or otherwise with the Shari’ah, custom is once again divided into the two types of approved or valid custom (al-`urf al-sahih) and disapproved custom (al-‘urf al-fasid). As is indicated in the terms of these expressions, the approved ‘urf is one which is observed by the people at large without there being any indication in the Shari’ah that it contravenes any of its principles. The disapproved custom is also practiced by the people but there is evidence to show that it is repugnant to the principles of Shari’ah. We have already referred to the bedouin practice of disinheriting female relatives, and the prevalence of riba, which although commonly practiced are both in clear violation of the Shari’ah, and such represent examples of al-’urf al-fasid.
Proof (Hujjiyyah) of `Urf
Although the ulema have attempted to locate textual authority for ‘urf in the Qur’an, their attempt has not been free of difficulties. To begin with, reference is usually made to the Qur’anic text in sura al-Hajj (22:78) which provides: `God has not laid upon you any hardship in religion.’ This is obviously not a direct authority on the subject, but it is argued that ignoring the prevailing `urf which does not conflict with the nusus of Shari’ah is likely to lead to adhering hardship on the people, which must be avoided. The next ayah which is quoted in support of `urf occurs in sura al-A’raf (7:199), but although this has a direct reference to `urf, difficulties have been encountered in identifying it as its main authority. This ayah, to which a reference has already been made, enjoins the Prophet to “keep to forgiveness, and enjoin `urf, and turn away from the ignorant’. According to the Maliki jurist Shihab al-Din al-Qarafi, this ayah is explicit and provides a clear authority for `urf. According to this view `urf ‘is clearly upheld in the Quran as proof of Shari’ah and an integral part of it. The generality of ulema, however, maintains the view that the reference to `urf in this ayah is to the literal meaning of the word, that is, to the familiar and good, and not to custom as such. But then it is added: bearing in mind that approved custom is normally upheld by people of sound nature and intellect, the Qur’anic concept of ‘urf comes close to the technical meaning of this word. The literal or the Qur’anic meaning of ‘urf, in other words, corroborates its technical meaning and the two usages of the word are in essential harmony with one another. The commentators, however, further add that since the word ‘urf in this ayah can mean many things, including `profession of the faith’, `that which the people consider good’, and of course `that which is familiar and known’, as well as `urf in the sense of custom, it cannot be quoted as textual authority for custom as such. Among the indirect evidence in support of ‘urf the ulema have also quoted the following saying of the prominent Companion, `Abd Allah b. Mas’ud, that ‘what the Muslims deem to be good is good in the sight of God’.
Although many scholars have considered this to be a Hadith from the Prophet, it is more likely, as al-Shatibi points out, to be a saying of ‘Abd Allah b. Mas’ud. The critics have, however, suggested that this saying/Hadith refers to the approval of `al-muslimun’, that is, all the Muslims, whereas `urf varies from place to place, and the approval of all Muslims in its favour cannot be taken for granted. In response to this, it has been further suggested that `muslimun’ in this context only denotes those among them who possess sound intellect and judgement, and not necessarily every individual member of the Muslim community.
The upshot of this whole debate over the authoritativeness of ‘urf seems to be that notwithstanding the significant role that it has played in the development of the Shari’ah, it is not an independent proof in its own right. The reluctance of the ulema in recognising ‘urf as a proof has been partly due to the circumstantial character of the principle, in that it is changeable upon changes of conditions of time and place. This would mean that the rules of fiqh which have at one time been formulated in the light of the prevailing custom would be liable to change when the same custom is no longer prevalent. The differential fatwas that the later ulema of different schools have occasionally given in opposition to those of their predecessors on the same issues are reflective of the change of custom on which the fatwa was founded in the first place. In addition, since custom is basically unstable it is often difficult to ascertain its precise terms. These terms may not be self-evident, and the frequent absence of written records and documents might ass to the difficulty of verification.
Another factor which merits attention in this context is the development of statutory legislation as an instrument of government in modern times. The attempt to codify the law into self-contained statutes has to some extent reduced the need to rely on social custom as the basis of decision-making. But even so, it would be far from accurate to say that custom has ceased to play an important role both as a source of law and a basis of judicial decision-making. This is perhaps evident from the general reference to custom as a supplementary source of law in the civil codes of many Islamic countries of today. The typical style of reference to custom in such statutes appears to be that custom is authoritative in the absence of a provision in the statute concerning a particular dispute.
The fuqaha of the later ages (muta’akhkhirun) are on record as having changed the rulings of the earlier jurists which were based in custom owing to subsequent changes in the custom itself. The examples which are given below will show that the jurists have on the whole accepted ‘urf not only as a valid basis of ijtihad but also as the key indicator of the need for legal reform:
1. Under the rules of fiqh, a man who causes harm to another by giving him false information is not responsible for the damage he has caused. The rule of fiqh that applies to such cases is that the mubashir, that is, the one who acted directly, is responsible for the losses. However, owing to the spread of dishonesty and corruption, the later fuquha’ have validated a departure from this rule in favour of holding the false reporter responsible for the losses caused.
2. According to Imam Abu Hanifah, when the qadi personally trusts the reliability of a witness who testifies before him, there is no need for recourse to cross-examination or tazkiyah. This ruling is based on the Hadith which provides that ‘Muslims are `udul [i.e. upright and trustworthy] in relationship to one another’.
Abu Hanifah’s ruling was obviously deemed appropriate for the time in which it was formulated. But experience in later times aroused concern over dishonesty and lying by witnesses. It was consequently considered necessary to take precautions so as to prevent perjury, and the ulema reached the opinion that tazkiyah should be applied as a standard practice to all witnesses. Abu Hanifah’s disciples are reported to have given a fatwa in favour of making tazkiyah a regular judicial practice. Consequently Tazkiyah was held to be a condition for admitting the testimony of witnesses, and a ruling was formulated to the effect that no testimony without tazkiyah may constitute the basis of a court decision.
3. According to the accepted rule of the Hanafi school, which is attributed to Abu Hanifah himself, no- one was allowed to charge any fees for teaching the Qur’an, or the principles of the faith. Teaching these subjects was held to be a form of worship (‘ibadah) and no reward for it was to be expected from anyone other than God. But subsequent experience showed that some people were reluctant to teach the Qur’an, and an incentive by way of remuneration was considered necessary in order to encourage the teaching of Islam. Consequently the fuqaha’ gave a fatwa in favour of charging fees for teaching the Quran.
4. Among the rules of fiqh which have tended to change with the change of custom, there is one concerning the determination of the age by which a missing person (mafqud) is to be declared dead. According to the generally accepted view, the missing person must not be declared dead until he reaches the age at which his contemporaries would normally be expected to die. Consequently the jurists of the Hanafi-school have variously determined this age at seventy, ninety and one hundred, and their respective rulings have taken into consideration the changes of experience and conditions that prevailed at the time the new rulings were formulated.
5. And lastly, in the area of transactions, the concept of al-ghabn al-fahish, that is, radical discrepancy between the market price of a commodity and the actual price charged to the customer, is determined with reference to `urf. To ascertain what margin of discrepancy in a particular transaction amounts to al-ghabn al-fahish is determined by reference to the practice among tradesmen and people who are engaged in similar transactions. Since these practices are liable to change, the changes are in turn reflected in the determination of what might amount to al-ghabn al-fahish.
by M. H. Kamali.
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