Nashr al-Urf fi Bina ba'd al-Ahkam ala al-Urf
- Author died
- 1252 AH
- Editions
- T Istanbul
Nashr al-Urf fi Bina ba'd al-Ahkam ala al-Urf (Spreading the Custom Regarding the Basing of Certain Rulings upon Custom) is a legal treatise written by the Damascus-based Hanafi jurist Ibn Abidin (d. 1252 AH / 1836 CE) on the role, authority, and application of custom (al-urf) and social habit (al-adah) in Islamic jurisprudence and legal theory.
Background and Composition
Ibn Abidin authored the work as an outgrowth of his commentary on his own didactic poem on legal methodology, Uqud Rasm al-Mufti (The Collars of the Mufti's Protocol). When commenting upon the verse:
والْعُرْفُ فِي الشَّرْعِ لَهُ اعْتِبَارُ ... لِذَا عَلَيْهِ الحُكْمُ قَدْ يُدَارُ "And custom is considered in the sacred law; therefore, rulings may turn upon it."
he observed that addressing the multifaceted issues of custom thoroughly would expand his commentary beyond its intended scope. Noting that earlier scholars had not devoted a comprehensive standalone exposition to the subject, he chose to extract and expand these discussions into an independent monograph. The treatise was later published within his collected short works, Majmu'at Rasa'il Ibn Abidin.
Structure and Content
The treatise is organized into an introduction and two primary thematic chapters (abwab):
Introduction (Muqaddima)
The introduction examines the definitions, classifications, and textual foundations of custom. Ibn Abidin defines habit (adah) as a recurring phenomenon established in human dispositions and acceptable to sound nature without a strictly rational nexus. He classifies custom into:
- General custom (urf amm): Recognized across society at large.
- Specific custom (urf khas): Conventions limited to a specific group, region, or technical discipline (such as grammatical and legal terminology).
- Shar'i custom (urf shar'i): Terms whose primary linguistic definitions are superseded by sacred legal definitions, such as salah, zakah, and hajj.
He further distinguishes between verbal custom (urf qawli) and practical custom (urf amali), noting that verbal custom restricts general language by consensus, while practical custom also restricts general terms in Hanafi jurisprudence. As textual evidence for the legal validity of custom, he cites the Quranic verse خُذِ الْعَفْوَ وَأْمُرْ بِالْعُرْفِ وَأَعْرِضْ عَنِ الْجَاهِلِينَ ("Show forgiveness, enjoin what is customary and good, and turn away from the ignorant" [al-A'raf: 199]), as well as the legal maxim "Habit is an arbiter" (al-adah muhakkama), referencing the report of Abdullah ibn Mas'ud: ما رآه المسلمون حسنا فهو عند الله حسن ("Whatever the Muslims deem good is good in the sight of God").
Chapter One: Custom Conflicting with Sacred Texts
This chapter addresses cases where customary practice conflicts with scriptural texts or analogical reasoning (qiyas):
- Direct contradiction: If a custom directly contradicts an explicit prohibition across the board (such as widespread indulgence in usury, wine consumption, or men wearing silk and gold), it is an invalid custom (urf fasid) and is categorically rejected.
- Specification of general texts and overriding analogy: A prevailing general custom can specify (takhsis) general textual injunctions and set aside strict analogy, as exemplified by the validity of commissioning manufacturing contracts (istisna'), entering public baths without specifying the exact duration, and drinking from public water bearers.
- Monetary and commercial practices: Ibn Abidin analyzes the report attributed to Abu Yusuf permitting the exchange of items named in prophetic traditions (such as gold, silver, wheat, and barley) by weight or count rather than volume if custom changes. Ibn Abidin argues that Abu Yusuf did not intend to disregard prophetic text, but understood the original scriptural designation as reflecting contemporary customary usage, meaning that a shift in custom alters the governing ruling. He applies this to contemporaneous Ottoman currency, fluctuating piastre (qurush) values, and alloyed coinage in Syria and Egypt.
Chapter Two: Custom Conflicting with Foundational School Transmissions
This chapter discusses custom that diverges from the authoritative transmitted positions (zahir al-riwaya) of early Hanafi masters:
- Temporal context of legal derivation: Ibn Abidin highlights that many positions formulated by early jurists were constructed around the customs, habits, and social circumstances of their respective eras, rather than immutable scriptural proof. When circumstances shift, adhering rigidly to early rulings causes undue hardship and contradicts the overarching legal objectives of ease and preventing harm. Such discrepancies represent a "difference of era and time, not a difference of evidence and proof" (ikhtilaf 'asr wa-awan la ikhtilaf hujja wa-burhan).
- Examples of modified rulings:
- Permitting teachers of the Quran, prayer leaders (imams), and callers to prayer (mu'adhdhins) to accept wages, contrary to the foundational Hanafi stance, because state stipends had lapsed and forbidding wages would lead to the neglect of religious instruction.
- Requiring formal judicial vetting of witnesses' integrity rather than presuming apparent probity (zahir al-adala), due to the spread of untruthfulness in later times.
- Imposing financial liability on joint employees (damir al-ajir al-mushtarak) and usurpers of religious endowments or orphans' estates.
- Interpreting regional spoken oaths and customary metaphors regarding divorce (such as regional formulations of kull hill 'alayya haram).
- Adjudicating disputes using customary circumstantial evidence (qara'in al-ahwal al-urfiyya), including disputes between spouses over household items or property demarcations.
Answer updated