Temporal Fixity & Flexibility in Legal Rulings

(n.b. The content for this article comes from a short class on legal maxims, presented in 2014. It provides more information than the earlier article on the abuse of customs.)

Rulings can change in response to changes in customs, habits, and the context in which a ruling is applied. This can even happen with some issues where consensus has formed around a ruling determined by maṣlaḥah and the maṣlaḥah changes. Customs, habits, and contexts change through time. And those changes play a role in determining rulings.

The role of custom and habit is important today with all its massive and continual changes in customs and habits. Thanks to globalism, many Muslim societies are being influenced by the customs and habits of non-Muslim societies. Also, many people today argue that certain rulings must change today since the custom and habit of today is not the same as the custom and habit of the time of the Prophet ﷺ. (Some even say that linguistic meanings are a form of customs and habits, so rulings will change as language does.) 

So how far does this go? First, we need to talk about customs and habits as legal sources of law.

Customs & Habits as Legal Sources

Customs and habits (ʿurf & ʿādah) are often significant when determining legal rulings. Some scholars define a custom (ʿurf) as

what people have become accustomed to using and put into practice, including all actions, and phrases which they use to mean something that does not comply with its linguistic meaning and is not obvious to those who hear it [e.g. idioms, technical terms].

Scholars divide customs into two rough categories with respect to their legal status: 

  • valid – that which people have become accustomed to and do not render the prohibited lawful nor the lawful prohibited 
  • invalid – that which people have become accustomed to and do render the prohibited lawful or the lawful prohibited. 

Examples of valid customs: 

  • dividing a woman’s dowry into a portion given upon marriage and a portion deferred until death or divorce 
  • whether the word “meat” includes fish 

Examples of invalid customs: 

  • not praying during celebrations and festivals (e.g., not praying during the days of Eid) 
  • engaging in transactions which involve interest 
  • giving a dowry to the husband instead of the wife 

Notes: 

  • whereas consensus (ijmāʿ) depends upon agreement of scholars, customs depend upon agreement of the masses, giving weight to specialists and non-specialists
  • most examples of customs fall under the general heading of unrestricted interests (al-maṣāliḥ al-mursalah), i.e. the things we deem good that the Sacred Law neither confirms nor denies. 
  • jurists observe that “everything which the Sacred Law has mentioned in absolute terms without any specific guidelines in the Sacred Law or language, is determined through custom” – such as what determines the finalizing of an agreement and taking possession of one’s [new] property, and the requirements for claiming abandoned lands. 

Conditions for its Validity

Certain conditions must be met in order for a custom to be considered valid and legally significant. These conditions include:

  1. The custom must be totally or overwhelmingly consistent
  2. The custom must be common in all Muslim lands
  3. The custom cannot conflict with legal evidence
  4. The custom an act is based upon existed before the act’s initiation and remains throughout the entire duration of the act
  5. The custom is considered binding in that people are sure to act according to its implications
  6. The custom is not contraindicated by another action or statement

Customs which meet all of those conditions are significant and can then play a role in determining rulings and in settling disputes in court.

So now we get back to our legal maxims…

“It is not denied that rulings change with the change of time”
«لا ينكر تغير الأحكام بتغير الأزمان»

The overall aims of the Sacred Law include obtaining welfare, warding off harms, and establishing justice. Because of this, legal rulings have a strong connection to the temporal context in which a ruling is carried out and available means. Many rulings were well-designed to accomplish their purpose in a specific time that, after a generation or two, no longer accomplish their purpose or even lead to the opposite. This is why scholars of one generation give fatwas on many issues that differ from fatwas issued by scholars of an earlier generation. And they do this knowing that if places were reversed, each would give the opinion of the other. 

The foundational rulings that the Sacred Law came to establish through the Quran and ḥadīth are not open to changing with changing times. Rather, these rulings are intended for the betterment of all times and generations. However, the means for carrying out these rulings and the manner in which they are applied can change over time. 

Example of things that cannot change:

  • the impermissibility of oppression being impermissible
  • the impermissibility of fornication, ribā, drinking wine, theft 
  • the obligation of consent in transactions 
  • the obligation of removing crime and protecting rights 

The rulings that are open to change include those that are based on legal customs and habits, or upon interests (maṣāliḥ). And when there is a change in the customs, habits, or the context of these rulings, it becomes necessary to re-evaluate the rulings to ensure that they are still suitable for their time. When these rulings cease to be suitable for obtaining their intended purpose, the rulings must change or else they will be pointless and harmful. 

Examples of rulings that can change: 

  • It now being permissible to take wages for performing religious duties, such as leading prayers, the Friday sermon, teaching Quran, etc. 
  • Lowering the conditions for bearing testimony 
  • Recording ḥadīth 
  • The Companions (may Allah be pleased with them) prohibiting fixing prices (tasʿīr), which the Seven Fuqahāʾ of Medina later permitted
  • The Companions (may Allah be pleased with them) permitted spouses, children, and parents to testify for one another; later scholars did not permit this since it would lead to rights getting lost

In reality, the legal rulings that change through the change of time are all built upon the same legal basis: delivering rights, obtaining interests, and mitigating harm. The change in rulings is nothing other than a change in the means and manners for arriving at the goals of the Sacred Law. In most cases, the Sacred Law does not specify those means and manners, leaving them for each age to choose what is most conducive for producing the desired results. 

Rulings which are based upon explicit univocal texts (naṣṣ, as defined in uṣūl al-fiqh) do not change over time since an explicit univocal text is stronger than custom, as it is not conceivable that an explicit univocal text would itself be based upon a mistake or misguidance. This is in contrast to custom and habit, which can be based upon a mistake or misguidance, such as it becoming common for people to engage in invalid transactions or other unlawful transactions.

And Allah knows best.

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