Shaykh Muhammad ibn Ibrahim mentioned those who follow tribal customs among the six most common types of “ruling by other than what Allah revealed”. He said, “This is the manner in which many of the clans, tribal leaders and Bedouins rule. They rule according to their customs that have been passed on, continuing upon the laws of Ignorance turning away and not having any desire to apply the Law of Allah and His Messenger ï·º”
The extremely popular video shared yesterday illustrates this type of jahili practice, with many people claiming that it is an example of ta’zeer, a punishment recognized by the Shari’ah applied in cases where there is no explicit punishment defined in the Qur’an and Sunnah. And they have said that, since ‘Urf is an accepted source in Fiqh, there is nothing here that contradicts the Shari’ah.
First of all, ta’zeer is not the name for any punishment that anyone chooses to impose on someone when they do not know what the Shari’ah ruling is, or if there is no ruling; the word we use for that sort of thing is “transgression”. There is no explicit punishment for someone telling me I’m an idiot, so when I punch him, it is ta’zeer? Or do you imagine it becomes ta’zeer when someone else gives me permission to punch him? Ta’zeer, for it to be ta’zeer, is a choice for a qadi within a Shari’ah framework, it is not any punishment we may decide upon in the absence of a Shari’ah framework.
The same applies to reliance on ‘Urf. If the customs of a people are such-and-such, and these do not contradict with the Shari’ah, and there is no Shari’ah ruling specific to the case at hand, the ruling on a matter can be in accordance with their custom. For example, if the standard amount of mahr in a given society is $10,000, then this is accepted as the norm, and so on. ‘Urf can be considered as an evidence in the process of deriving rulings in Shari’ah, it is not its own process for deriving rulings; “this is the way we resolve disputes, the tribal elders gather, make a decision, and it is implemented”. ‘Urf is taken as evidence within a Shari’ah framework and considered when issuing a ruling, if the absence of stronger evidences necessitates this; the process of deriving a ruling is not handed over to ‘Urf for the people to just do as they wish.
Tribal “courts” exist all over the world, among Muslims and non-Muslims; in Yemen, Pakistan, Afghanistan, India, Africa and Latin America; and they have been responsible for many atrocious crimes. “Loya Jirga” tribal councils in Pakistan can issue verdicts allowing a man to throw acid onto the face of a woman he feels offended him; the sisters of a man who is accused of immoral conduct may be ordered to be gang-raped, the children of an accused man may be abused or killed in retribution, and so on. In fact, this jahili method for reaching judgments was one of the major causes for strife and bloodshed in the pre-Islamic Arab world.
The fact that this system remains so popular, and earns so much approval among Egyptians is very disturbing, particularly when they claim to oppose the government on the basis that it “rules by other than what Allah revealed”. It seems that what they mean is, it “rules by other than what they themselves desire”.