�URFAND CUSTOMS AS BEING PRACTISED AMONG THE MALAY COMMUNITY

BY

MADYA OTHMAN ISHAK

HE Malay community, like other Muslim communities, has various T kinds of customary practices. Some of their customs had been established from the time of immemorial. Thus, when they accept the teachings of , they also still practise some of their customs. This is partly due to the lack of their knowledge on Islamic Law, and partly due to a considerable confusion of Islamic Law and customs, etc. The main purpose of this short article is to deal with some aspects of 'Urf and 'Adiit as being practised among the Malay community in the Peninsula of Malaysia. However, before we can see the phenomenon of Malay customs generally, it is worth to understand briefly the position of 'Urf in the Islamic legal theory.

1. The attitude of Muslim jurists to ° Urf.

Said Ramadan points to the works of jurists on the classical theory of `Ilm Usul al- (the science of the bases of ) in the following summary:

Most of the jurists are in the habit of classifyingthe sources of Islamic Law into two main categories: (1) Chief sources, which cover: a) The Qur'dn, or the Holy Book of Islam. b) The ,or the authentic Traditions of . c) The Ijmii', or the consensusof opinion. d) The Qiyds, or judgment upon juristic analogy. (2) Supplementarysources, which include: a) or the deviation, on a certain issue, from the rule of a precedent to another rule for a more relevant legal reason that requires such deviation. b) Al-Istislah, or the unprecedentedjudgement motivated by public interest to which neither the Qur'an nor the Sunnah explicitly refer. c) Al-'Urf, or the custom and the usage of a particular society,both in speechand in deeds 1. It is interesting to note that, Said Ramadan alludes to those who have classified al-'Urf as one of the supplementary sources of Islamic law. It would seem that Said Ramadan himself would not accord such authority

1 Said Ramadan, Islamic Law ; Its Scope and Equity, London, 1961,p. 23. 353

to `Urf, but he may be overlooking the importance of historical development over a wide geographical area when he is trying to define Islam somewhat narrowly in terms of its origins As we already understood that early classical Islam says nothing about the schools of law (madhiihib), etc. But, Islam respects the opinions and works of its people and gives them a high rank. For example, Islam gives a wide independence to people to reform and regulate their way of life, so long as it is not contrary to the essence of Islamic teaching. This liberty of people can be seen from the Qur'anic verse: « God changes not what is in a people, until they change what is in themselves. » (XIII: 10) 2. And there is a Tradition from the Prophet Muhammad which states: «My com- munity will never agree upon an error 3. » From this starting point, the divergent attitude of early madhiihib to 'Urf proceeds.

2. The position of 'Urf in Islamic law : .

`Urf is an word; it is a noun from the root 'a-r-f which means «to know»; thus °Urf is «that which is known.» The term of °Urf has been defined several ways, some of which R. Levy explains as follows:

'Urf (A.),defined by gurdjdni (Ta'r1fst,ed. Flügel, p. 154)4as <<[Actionor belief]in which persons persist with the concurrenceof the reasoning powers and which their natural dispositions agree to accept [as right]». It stands therefore to represent unwritten custom as opposed to established law, shar` ... though attempts have not been lackingto regard it as one of the usul. It is sometimesheld to be equivalentto case law or . This may be where civil laws are based on recognized local customs and it is a well-known fact that in many tribal and other communitiesthese are native codes of unwritten laws and traditions by which life is regulated locally 5. G. H. Bousquet, clarifies the meaning of `adah as the realities of social life which have never exactly reflected the shari 'ah [q.v.] or shar, the ideal Muslim Law corresponding to God's will and says that «the words ada and 'urf have the same meaning, but the usage varies from region to region ... » 6. The words, `urf and ma'ri7f, are clearly mentioned in the Qur'dn several

2 The Qur¸�nictranslation is from A. J. Arberry, TheKoran Interpreted, London, 1964. 3 For further details, see Ibn Hanbal, al-Musnad, Cairo, 1313H., Vol. I, p. 379. 4 See also, al-Jurj�n�Kit, �bal-Ta¸rif �t,Cairo, 1283H., p. 99. 5 R. Levy, article �Urf,in The Encyclopaediaof Islam1, Vol. IV, p. 1031. 6 G. H. Bousquet, art. ��da,in E.1.2, Vol. I, p. 170; cf. M. M. Wajih, Abd al-Haqq and G. Kadir, Kashsh�f Is�il���al-Fun�t n,printed at W. N. Lees' Prees, 1862,Vol. III, p. 994. (al-Ta��naw�).