In regard of whether ‘Urf or the customs that are used to deduce Islamic legal rulings, we must see its suitability where as we know, ‘Urf is divided into two types, where it can be of the Sound Customs and also the Invalid Customs , obviously in regards of a rational development of legal rulings, we should always be based on those that are Sound Customs where Sound Customs or ‘Urf will be those customs or practices that do not go against the holy text of the Al-Quran. Sound Customs should also not be in any contradiction or go against any recommended act that the Sharī‘a deems to promote as something that is encouragable that benefits the community and a follower of Islam. However, on the other hand, the usage of ‘Urf should not be practiced while deducing Islamic Legal Rulings if the said ‘Urf is an Invalid Custom where a custom is said to be invalid if it goes against the holy text of the Al-Quran where if a certain custom is not an act that the divine law recommends, or if the custom is something that is unlawful under Islamic Law. Certain examples can be seen where a custom may reject an obligatory act or the recommendation a prohibited act. Sound Customs are always normally supported by a text in the Holy Quran where we can see from instances such as the obligatory duty of the husband to maintain the mother of the baby where it is in accordance to his financial position. It is stated in the Quran that “But he shall bear the cost of their food and clothing on equitable terms.” Thus, we can see from this deducing of an Islamic ruling based on the Holy Quran that it is fair and necessary as it does not negate the benefits of the mother while it does not also put a very harsh responsibility on the father as he is to provide as he is able to. It is customs such as these that are rational and should be implemented as an Islamic ruling where it does not encourage something that is irrational and immoral.
Since the basis of a Sound Custom is on the Holy Quran, we can safely say that it will never be wrong as the Holy Quran was created to accompany the community and act as a guide for their followers in life. Invalid Customs on the other hand, should never be used for Islamic legal rulings as it’s reasons are obvious where it is in contrast to the guidance of the Holy Quran where it may recommend an act that is not allowed in Islamic teachings and those that are not allowed in Islamic teachings are always said to be those that will deteriorate the mind, soul and body of an individual. Those acts may either affect the person directly or affect the community as a whole where we can see if there is a custom that encourages theft or killing, it is obvious that it is in contrast of Islamic teachings and if that said invalid custom is practised and deduced into a legal ruling, then we can see that havoc will happen in our community where people will be stealing things and killing people as they like and nothing will happen to them. It is said that the property of a person is his and only his as he had worked hard for it and it would be unjust if people would be able to take it from him without his permission and in the process maybe even harming that person. Killing would be even more worst where our loved ones may at any time be killed because of hatred, jealousy, or for any mere reason where our community would be a very unsafe community. People would not be able to divulge in life as they please and would be always scared of any crime happening on them. Abdul Al-Karim Zaydan defined invalid ‘Urf as “Practices among the people that opposes the divine law or legitimizes something that is prohibited, it rejects obligatory acts or makes end of something of beneficial purposes for the community or an individual.”
The usage of ‘Urf is said to be already embedded into our daily lives and thus the usage of ‘Urf as a way of deducing legal rulings is said to be acceptable in our norms. However, those customs that are practiced since olden days may not necessarily be applicable to modern days as the community and the ideology of the community is different. Such as the Holy Quran, where it was revealed gradually to suit the community at that particular time where advancements will always be made, certain customs should also change as time is changing where certain things that are acceptable in the past may not necessarily be acceptable during modern times. We can see certain suitability in regard to social matters of local usage where it has been implemented where Legal scholars had said that in the transaction of buying and selling, the saying and discussing of that said transaction is not required where we can see from the practice of people buying items from supermarkets where customers only need to visit the place and choose whatever they wish to buy and the prices are expressly stipulated and they only need to pay at the counter and leave. Also, in regard of purchasing a house, we can see that even if some details of the sales are not discussed then it is taken as the whole house is sold to the person where the kitchen, toilet and parts of the said house would be belonged to the new owner. Thus, we can see that many of the customs that are incorporate into daily transactions, procedures and certain contracts where it is said to be acceptable in our community for exam the social protocol of visiting a friend’s house where it should be known that it should be allowed for the guest to eat and drink there even if permission was not asked but it is up to the social customs to what extent that permission is allowed where questions that may arise regarding what limitations are there. As stated, not every ‘Urf is to be accepted in Islamic law and that certain conditions must be met where Legal scholars had determined. Firstly, for it to be rational for the aim of deducing legal rulings, it must be a said dominant custom. What this means is that the said custom must be the one that is relied on by many people when encountering that certain issue.
This means that it is commonly used and mostly everybody would be aware of it. An example would be in the sale of an item without the specifications of the price that it is to be sold. This issue would be easily resolved by following the market price that is known to the community at that certain time. Next, the said custom must also already been established before it is to be deduced into said certain legislation. Furthermore, it should be authentic and reliable in regard of the matter it is about to decide and it is said that if a custom is only available after the enactment of a legislation, then the custom is invalid and unreliable. There are legal scholars that have the thinking that only ‘Urf that is said to be valid is those that are in practice and many factors are to be taken into account where in comprehension of a text from the Holy Quran, the usage and habits of the followers will be taken into account. It can be seen that the sending down of verses of the Holy Quran is all beneficial and for the good of the community at that time and many scholars agree that the ‘Urf is not to be reliable because what was understood back a thousand years ago may not be applicable during our time. Thus, the saying of an ‘Urf is valid not for our ancestors nor for the future generation but it is binding only to the ones that live by it. With this, we can safely say that there are safe guards that the Islamic scholars had implemented and found out where there are exceptions towards the using of ‘Urf to deduce legal rulings where it is suitable to use ‘Urf as a way of legal ruling deduction.
On the other hand, in regards of Maslahah al Mursalah which is the considerations of public interest, it is generally said that Maslahah al Mursalah is the basis of Islamic law. Maslahah al Mursalah basically is those that benefit the public interest and is for the public benefit where those that are not recommended which is haram is to be said prohibited. Maslahah al Mursalah are those actions or deeds where they were validated after the divine revelation came to an end where in the context of the Holy Quran, there are no text that validates it or invalidates it. However, there are many legislations in the past that has been based on Maslahah al Mursalah where it included the introduction of currency, the establishment of prisons, introduction of tax and many more where it prevented the accumulation of wealth. It is said that the collection of tax which is an example of a Maslahah al Mursalah is justified where it is needed to finance the economics of the state where it is required also in the modern days where we can see that it is suitable at times. Technically, Maslahah al Mursalah means the consideration of the purpose of the law and the means of it. It is said that Maslahah is said to safeguard the purposes of Shariah which is the preservation of religion, life, reason, descendants and property which is the objectives of Shariah. Thus, Maslahah al Mursalah is not only to recommend those that are beneficial and to prevent those that are harmful but it is also used to create harmony with the objectives of the law that the law-maker had in mind.
Maslahah al Mursalah can be further divided into a few categories where each of them are to protect the five basic necessities of the Maqasid al-Shariah which is religion, life, intellect, property and progeny where these said values are always taken into account in regard of the process of creating legislations of the rulings of Islamic law. Whether it is valid for deducing Islamic legal rulings, we must first make sure that it is valid for it to be suitable for it to be implemented in modern Islamic legal rulings. Many jurists have agreed that the attainment of benefit and the avoidance of those that are harmful is enough to make a Maslahah al Mursalah valid. However, there are different opinions in some jurist where different branches of school of thoughts are not the same. Thus, the validity of Maslahah al Mursalah must be analysed carefully to confirm its authenticity then only it is suitable to play a role of legislation deduction. Islamic law is said to protect human welfare in this world and the Hereafter. Where this means that human welfare and benefits is said to be the main objective in the enactment of Islamic law. Islamic law will regulate what humans are supposed to do and those that are to be refrained from. Therefore, Maslahah al Mursalah constitutes a very important element in structuring Islamic law and plays an important role in enacting legislations. However, it is said that in regard of rituals such as prayers and fasting, then Maslahah al Mursalah is not to be applicable because in this context, the human mind is unable to realize or see the objectives of it and it is the functions of the revelation to make the followers understand the objectives of worshipping as worshipping is not the product of human mind.
On the other hand, we can see matters relating to transactions, customs and such can and will be subjected to reasoning through Maslahah al Mursalah where many of the jurists agree that it is the basis principle of all transactions more commonly known as Muamalat. It is said that there is a significant difference and why Maslahah al Mursalah cannot be applied in matters of worshipping and can be applied on those of transactions. Matters that relate to worship are those that cannot be carried out without specific evidence from the Holy Quran that states the requirement of it and the manner to carry out certain rituals or worships are specific and to be followed accordingly by what is prescribed by Allah himself. However, transactions such as sale and purchasing of something where the rules and the matter that is to be followed can be derived from rulings that is guided by Maslahah al Mursalah or the objectives of the law. Islamic law does not normally prohibit a said transaction unless it is to have the negative elements such as cheating where it is harmful and it is against the objectives of fair dealing in regard of business transactions. Certain transactions that may contain the said negative elements may be excluded however if it is for the public interest or Maslahah al Mursalah. The Maslahah al Mursalah principle is said to be one of the most important things for Muamalat, therefore, many jurist and modern-day scholars have said that in financial transactions in regard of investments, it is best that the investments be of good impact and benefits the public where as those that will only benefit a certain invidual and harm the rest of the community should not be practised because this is in contravention with the objectives of Shariah.
The role of Maslahah al Mursalah however should always fulfil the required conditions before it is able to play an important role in Islamic law where scholars of Islam had set a framework where legislations based on maslahah can be validated so that the said legislation is free from being abused or for arbitrary power or benefit for a certain people or certain group of people. The first condition is said that the Maslahah al Mursalah must be genuine in its aim to protect the rights of the people. Where it can be seen that it helps to prevent people from misunderstanding and disbelieving in Islam and it create for a more suitable and caring environment for the future generations. The objectives of protecting all the five pillars of Islam must be always achieved by the said Maslahah al Mursalah. Next, the second condition is that the Maslahah al Mursalah must be general where it must prevent harm and provide benefit for the people as a whole and not only a selected group of people or an individual. Examples can be made where it could be the consignment of land to the public and not individual ownerships, helping to protect a neighbourhood to prevent crime from happening and to maintain the law and order of the society where these actions can be seen to benefit the public at large rather than only benefiting a small group of people. The last condition is that the actions of the Maslahah al Mursalah must not be in contradiction with the principles or values that is held by the Holy Quran or Sunnah. These would be those actions that are Haram such as prostitution or pornography where certain people may state that it is for the public benefit. However, these cannot be permitted on the basis of Maslahah al Mursalah as it is against the values and principles of the Holy Quran and Sunnah. Thus, we can see that there are many conditions that will validate a Maslahah al Mursalah before it can be deduced into a legal ruling. We can see that in cases where the guidelines of the conditions of Maslahah al Mursalah are followed then it said to be suitable for modern-day rulings too.