Cultture is Arbiter - Culture PDF

Preview

Summary

Culture...

Description

1

Course:

Universal Maxims in Islamic Law and Beyond (BES 3128)

Date:

March 18, 2019

Custom is Arbiter In this write-up, I discuss one of the Islamic legal maxims which say: “Customary usage is to be considered as a determining factor to extrapolate and implement Islamic legal rule”. All aspects of Muslims life are governed by Shariah i.e. Islamic law. There are two major sources of Islamic Law, and these are the Holy Qur’an and the Sunna of the Holy Prophet Muhammad, SAW. Efforts to interpret the above two sources of Law brought about “Ijtihad” i.e. interpretive effort. The activity of trying to think about and then solve legal problems and dilemmas is called “Ijtihad” Ijtihad literarily means striving. It is defined as the total expenditure of efforts by a “Mujtahid” in order to infer; with a degree of probability, the rules of Shariah from the detailed evidence in the sources. Two things need to be mentioned here; “Ijitihad” is conducted by a qualified jurist in Shariah, this is the person refers to as “Mujtahid”. The second key point is to commit time and efforts to the best of one’s ability. From this “Ijtihad” several tools emerged, and these are Qiyas i.e. analogical deduction, Hijma’u i.e. Consensus of opinion, Maslaha i.e. public interest, “Taqlid” emulating someone. “Taqlid” also means holding to a particular school of thought, ”Usoolu Fiqh” i.e. Islamic Jurisprudence, “Sadd-al-dharai' i.e. blocking harm or preventing harm and the last but not the least is Islamic maxims. The maxims of Islamic law were established after representatives of all schools of thought regarding Muslim jurisprudence came together to reach a consensus. Maxims refer to a body of abstract rules that were produced after a detailed study of the “fiqh”. In this paper, I discuss one of these Islamic legal maxims called “Customs are Arbiter”

2

Custom refers to the prevailing practices of society with respect to their choice of words and their mode of action. The principle that customary usage is the determining factor basically means that the customs of the people are recognized and acknowledged by Islamic Law as long as certain conditions are met. The most important of these conditions is that the custom in question does not violate the dictates of the sacred texts. Another condition is that the custom is indeed the prevailing practice in society and is applied in that society on a consistent basis. The third condition is that the custom must have been in effect at the time when a given activity was initially entered into without having been any clear expression on the part of the concerned parties indicating something to the contrary. Finally, the custom must be of a nature that its application can be considered binding on the parties concerned. God Almighty stated clearly in the Holy Qur’an thus: “O mankind! We created you from a single pair of a male and a female and made you into nations and tribes that you might get to know one another. Surely the noblest of you in the sight of Allah is he who is the most righteous. Allah is All-Knowledgeable, All-Aware.” Q49 verse 13. Also, in another verse of the Holy Qur’an, God says: “And among His wonders and signs is the creation of the heavens and the earth, and the diversity of your languages and colors. Surely in this are signs for those of sound knowledge.” Q30 verse 22. Since God Almighty acknowledges the fact that human beings are of various languages, tribes, and nations, it is explicitly clear that their cultures might differ as well. Every law promulgated by Allah, SWT, is not meant to bring hardship to mankind rather bring ease and tranquility. Q2 verse 185 Still talking about custom of some people, looking straight into someone eye, or an eye ball to eye ball is regarded as an essential thing in the United States in order for someone to be taken seriously whereas, in some other part of the worlds, particularly in my country Nigeria, looking eyeball to eyeball is regarded as an act of disrespect. So, a Muslim who is scheduled for an interview or talking with his or her boss in the United States will have to abide by the culture

3

of the land to get what he or she wants without being considered as rude or being disrespectful at all. Among the evidence for the recognition of custom in Islamic Law is the following hadith related by `Â'ishah: Hind, the mother of Mu’awiyah said to the Holy Prophet Muhammad, SAW, Abu Sufyan (Hind’s husband) is a tight-fisted man i.e. he is stingy. Is there anything wrong if I take from him secretly? The Prophet (SAW) said: “Take for yourself and your children to suffice your needs according to what is customary.” Sahih al-Bukhari On this basis, Islamic rulings are given throughout the ages. Whenever you find a custom in practice, you must take it into consideration, and whenever you find a custom has been abandoned, you must cease to consider it. You must not become unyielding all your life in adhering to what is recorded in the books. If someone comes to you from outside of your own region seeking a legal ruling, do not hold him to the customs of your land. Ask him about the customs of his own land and hold him to those and give your legal ruling accordingly. Do not apply the customs of your country that you find in your books. My own father almost quit this religion (Al-Islam) based on the way and manner some clerics preached during their own time. In Nigeria, particularly in Ibadan, my home town, there was a prominent group called “The Bamidele Movement in Yoruba land” according to my father; the founder of the movement, Shaykh Bamidele condemned anyone that has a tribal mark. He said having a tribal mark was tantamount to changing Allah’s creation and it was a way of Satan. He quoted the verse that says: “I will certainly mislead them and delude them with empty hopes. Also, I will order them and they will cut the ears of cattle and alter Allah’s creation.” And whoever takes Satan as a guardian instead of Allah has certainly suffered a tremendous loss.”Q4 verse 119 Just for the sake of clarity, The Yoruba tribal marks are scarifications which are specific identification and beautification marks designed on the face or body of the Yoruba people.

4

The tribal marks are part of the Yoruba culture and are usually inscribed on the body by burning or cutting of the skin during childhood. They did that to identify their children during the civil war. The word “Yugayiruuna khalqa llah” was the yardstick which Shaykh Bamidele used and he concluded that all bearer of tribal marks shall enter hellfire because according to him they alter the creation of God! May Allah, SWT, forgive the Shaykh and all of us too. Obviously, Sayyid Qutb, Sheikh Bamidele and their likes were not aware of the maxim that says Alhurfu Muhakam” custom is an arbiter.

Another thing that is worthy of mentioning is that in Islam, giving due respect and care to parents is not only a religious duty, but it is also an ethical obligation. Allah, SWT, says in the Holy Qur’an, chapter 17 verse 23: “YourLord has decreed to you that: You shall worship none but Him, and you shall be kind to your parents ; if one or both of them live to their old age in your lifetime, you shall not say to them any word of contempt nor repel them and you shall address them in kind words”. So, talking about culture, raising children in a world saturated with social media, where privacy is no longer the norm particularly in the western world, children don’t see anything wrong with yelling at or talking back to their parents. When children are told to do something, they are so accustomed to asking questions as to why they have to do such and such, whereas, in other parts of the world, particularly in my home town, Ibadan, Nigeria, children don’t have the audacity to question their parents or any elders what so ever. It all goes down to custom One of the metrics for measuring the quality of a respectful person in the Yoruba culture is the interest of the individual to express obeisance in a stretched position. This will require persons of either the male or female gender to prostrate or kneel when greeting someone thought to be older or in a high position. Whereas in the United States a mere handshake and hug are sufficed when greeting parents or anyone else. It is also worthy of note that, in the Yoruba culture

5

whenever handshake takes place it has to be the elder stretching his hands first to shake the junior ones not the other way round but in the western world it does not really matter. Taking interest in some transactions is a way of life in American soil. For instance, if anyone intends to go to college, there is every tendency that such an individual might need to secure a federal loan, whether a subsidized loan or unsubsidized. In the same vein, to own a house in America might be somehow cumbersome for a low-income earner, this might propel such individual to accept mortgage. Allah, SWT, says in the Holy Qur’an, Surah Baqara, chapter 2 verses 278 and 279: “Oh, believers! Fear Allah, and give up outstanding interest if you are true believers. And if you do not, then be warned of war (against you) from Allah and His messenger. And if you repent, then ye have your principal (without interest). Wrong not, and you shall not be wronged.” Another salient point concerning extrapolating and implementing Islamic legal rule based on custom is that one day, the Holy Prophet SAW, met some farmers deliberating about their farm produce, how to pollinate their palm tree. Prophet Muhammad, SAW, passed-by and for one reason or another, he didn’t remember to greet them. So, those farmers dispersed thinking that God and His Prophet were not in support of whatever they are trying to achieve at that point in time. In the following year, the harvest for that year was very poor. So, they narrated their ordeal to the Prophet, how they used to harvest twice in a year but that particular year, they abandoned their technique because they thought pollinating is “haraam”. So, the Holy Prophet, Muhammad, SAW, says: “Antum Aalam bi umuuri dunyaakum” i.e. “you are in the best position to determine what technique is suitable for your farm product. Your custom and way of life is very important to keep so long it does not violate any Islamic principle,...