The Holy Prophet (peace be upon him) is reported to have declared:

“If we appoint anybody on a job and pay him his subsistence and he then takes anything in addition to it, this isembezzlement”.

What constitutes the level of subsistence is a point that needs to be decided on the basis of custom and usage. Another Hadith that seems to be more specific than the above is reported by Abu Ubayd which is conveyed in the following words:

“Whosever gets an office in our administration he may marry if he is unmarried; he may get a house if he does not possess it; he may have a riding animal if he does not own any; he keep a servant if he does not have one. But if anybody hoards wealth and rears a flock of camels (with government funds) Allah shall make him rise up as theone who misappropriates or cheats us.”

It will be noticed that the Hadith does not provide for food, clothing, medical facility and education. The probable reasons seem to be that:

(i) Salary system as adopted later was not introduced by the Prophet (peace be upon him). Officials were often required to voluntarily perform government jobs. They were paid some sort of honorarium if the government had resources.

(ii) Education and medical facility had not yet been made available in an organized form nor was anything charged for it if it was provided in any form.

(iii) The two Hadiths can complement each other with the interpretation that the former Hadith provides for subsistence or for current or consumption expenditure while the latter Hadith lays down the extent of allowing for capital expenditure.

In all the above cases what comes out is that the nature of. payment depended upon custom and usage.

The most important jobs that could be assigned to an official were Jihad and collection of Zakat and Jizya which called for journey to remote places and hence the necessity of a personal riding animal and an attendant. This would not necessitate providing any such facility in the case of one who performs desk

work as is quite common these days. Thus in all such matters it is the custom and usage that has a bearing on interpreting the application of the principles of the Sharia. The rule is that * “Custom is a source of judicial decisions: custom whether general or private is to be taken as a judicial decision to establish a rule of law”.

But the conditions that qualify custom and usage to have a decisive force are:

(1) The custom and usage should not be in defiance of the injunctions of the Sharia. The practice of charging interest on loan has a universal usage, but it is prohibited and cannot be recognized.

The practice of share-cropping on the basis of fixed produce for the land-owner may be prevalent at many places but since it has been categorically prohibited by the Sharia, it cannot be cited as an evidence in support.

Raffle and prizes on Bonds involve qimar and interest and cannot be recognized.

The condition of non-refundment of earnest money in the event of repudiation of a contract or of the non-acceptance of a tender is against the spirit of the Sharia.

The practice of forcing a borrower to work at sub-standard wage by virtue of his indebtedness is also exploitative and hence prohibited.

Parents taking possession of dower money (mahr) of the daughter without passing it on to her which is still prevalent at quite a few places is also not acceptable according to the Sharia.

The practice of paying fixed amounts by way of bribe to officials are not permissible notwithstanding that custom and usage support them.

(2) * “The custom which is most widely prevalent and operative is to be relied upon”.

Foodgrain that was traded in the early Islamic period was measured in terms of mudd and sa’. But it is now universally weighed, but not measured. Thus all calculations whether for trading or for purposes of payment of ‘Ushr or Sadaqa or atonement (kaffara) will be made in terms of the prevalent units of weight.

Bimetallic standard has now been universally replaced by paper currency and should be validly subjected to all Sharia injunctions regarding receipt, payments, calculation of Zakat on wealth, repayment of loan, etc., in the same manner as when the bimetallic standard was prevalent.

It seldom happens that some parents present to their daughters returnable gifts. But the regular custom is to provide dowry for good. In case of any dispute on the point of ownership it is the , predominant custom that will be made a precedent.

Subject to the conditions laid down above the main rule “Custom is a source of judicial decisions" shall be made applicable. Thus ** "what is a matter of common practice has the same effect as an express condition.”

In case a person authorizes another to sell something on his behalf without laying down conditions as to sale price and unit of currency, the agent will be treated to be bound by conventional rules of charging a reasonable price and prevalent currency.

An attorney would be expected to rent his principal's house, machinery or workshop on the terms and conditions customarily prevalent in the market.

An owner can sell the fruits of his trees when they mature but cannot compel the purchaser to collect them before these are customarily usable.

(3) * “Credence is to be given to that which is publicly and generally operative, and not to what is rare (or little seen).

A contractor is expected to erect the premises of a standard which is customarily acceptable.

In none of the above cases the detail understood by common usage would need to be mentioned. Another rule supplementing the above lays down: * “Custom has force to make void a fact”.

It would be pertinent to clarify at this stage that general prevalence and universality do not necessarily involve the entire population, in regard to all the customs and usages. Different groups may have their customs and usages that unconcerned people are not supposed to know. For example, merchants may have their customs which all of them respect and follow. As a result ** “Matter of common practice amongst merchants has the same effect as express conditions between them.

This will not, however, bind non-merchants to follow the custom, nor allow them to make any claim on that ground.

Gestures, signals and code words in the stock exchange/commodity exchange may amount to a contract among brokers, but this may not be an effective mode of contract for others.

Sale by auction may have different techniques at different places, and those techniques might be given the force of law.

It is this rule that allows a government to take into account contemporary standards to determine the cost of living and subsistence level, to define the cost of production and to lay down exemption limit for taxation and fix salaries and wages.