A Comparative Study Of Urf As A Source Of Islamic Law And Custom As A Source Of Western Law

Abstract

Generally knowing 'urf, it is the combination of the culture and the habits of the people, which grows in popularity and strength with continuous imitation. This later implants and transfers in the lives of the people. 'Urf is usually inherited generations after generation until the origin of other customs that dominate the previous one. In Islamic Law 'Urf is one of the most essential supporting sources that are visible in Islamic Law in a form of some legal rulings (ahkam). According to the variation in place, time, and circumstances, many of these ahkam changes. On the other hand, the custom is simply the usage and practice of different communities. This article is an attempt to answer, whether these customs are legally approved, can custom be law, even before it is recognized by precedent or authoritative legislation? What are the elements of custom by considering it as a source of law? Thus, this study explained and proposed 'urf and its application in Islamic law, particularly with the comparison of custom (as a source of Western Law). Furthermore, as a concept of Shari'ah, the classification of 'urf and custom were well analysed in this study. The validity of 'urf was clarified in-depth in this article while the legal maxims that shows the applicability of 'urf under Islamic law were also mentioned and it also ended with a reasonable conclusion.