Urf as a Source of Sharia: A Special Study of the Prophetic Era (A Critical Analysis of the Thoughts of Renowned Orientalist Wael Hallaq)

عرف بحیثیت مصدرِ شرع: عہدِ نبوی ﷺ کا خصوصی مطالعہ (معروف مستشرق وائل حلاق کے افکار کا تنقیدی جائزہ)

Abstract

The term ʿUrf refers to the customs, traditions, and practices prevalent in a society that are generally recognized and are not contrary to any Sharīʿah principle. The orientalist Wael Hallaq, while considering the formation and evolution of Islamic law as a historical and human process, views the role of ʿUrf within the same framework. According to him, the role of ʿUrf in the formation of law during the Prophetic era was part of a gradual and evolutionary process, which was later systematized by the jurists. To analyse Hallaq's perspective, it is essential to conduct a scholarly examination of the actual status of ʿUrf during the Prophetic era and its legal implications. This study will help determine the Sharīʿah status of ʿUrf in that period, its application, and its role in Islamic rulings. It will clarify the extent to which ʿUrf was acknowledged as a source of law in the Prophetic era and the instances where it was disregarded. The fundamental question in our critique of Wael Hallaq’s thought is whether ʿUrf was merely an evolutionary element in Islamic law or whether its status as a legal source was subordinate to divine revelation (Waḥy). Answering this question will elucidate that Hallaq perceives Islamic law as a human-constructed system and interprets the role of ʿUrf accordingly. However, in reality, Islamic law is divine law, and the acceptance or rejection of ʿUrf is also subject to divine revelation. This paper endeavours to clarify that in the Prophetic era, ʿUrf functioned as an auxiliary element, entirely subordinate to Sharīʿah rulings. Furthermore, it asserts that the role of ʿUrf in the formation of Islamic law was secondary and was considered valid only within the framework of divine revelation’s established principles.