Urf and Custom as Legal Foundations: A Comparative Analysis of Islamic and Western Jurisprudence

الملخص

This study, titled “Urf and Custom as Legal Foundations: A Comparative Study of Islamic and Western Jurisprudence,” investigates the pivotal role of custom and usage in shaping legal systems. The study examines the conceptual foundations, classifications, and legal implications of ‘Urf (custom) and ‘Ādat (habit) within Islamic jurisprudence, juxtaposing them with their Western legal tradition counterparts. This comparative analysis is crucial for understanding how social norms and practices influence the development and application of legal rulings. It sheds light on the adaptability and dynamism inherent in Islamic and Western legal frameworks, emphasizing the role of community consensus in establishing justice and equity. The study employs a qualitative approach, utilizing primary sources from the Qur'an, Sunnah, and classical Islamic jurists such as Imam Abu Yusuf, Imam al-Sarakhsī, Ibn ‘Ābidīn and Abū Zuhrā’Misri, alongside Western legal theorists like Salmond and Coke. The research categorizes ‘Urf and ‘Ādat based on their soundness, usage, and generality, and examines their conditions for acceptability. Comparative analysis highlights the similarities and differences between the two traditions. The findings reveal that both Islamic and Western legal systems recognize the significance of custom and usage in shaping legal norms. Islamic jurisprudence accepts ‘Urf and ‘Ādat as valid sources of law, provided they align with divine teachings. Similarly, Western jurisprudence acknowledges custom's role in legal development, contingent on justice and public welfare. This study underscores the universality of human experiences and the enduring relevance of custom in legal practice.