Applying customary practice (ʿurf) in the Sharīʿah

Answer – and Allah is the One who grants success and help: What appears is that tribal customs are of two types: those that contradict the Sharīʿah, and those that do not. Whatever of them contradicts the Sharīʿah is an evil that it is not permissible to approve of or be pleased with; rather, it is obligatory to denounce it.
And whatever of them does not contradict (the Sharīʿah), there is no harm in it; one may enter into it and be pleased with it. This answer is a general one.
Among the permissible and good tribal customs is the making of a pact (ḥilf) between individuals of one tribe, or between a group of people with different lineages, to support one another mutually, and that they are brothers like a single body.
Such alliances existed in ancient times among the Arab tribes; Islam came and approved them. Indeed, the Prophet (May Allah bless him and his family and grant them peace) himself and those with him entered into a pact with (the tribe of) Khuzaʿah. It has come in the sīrah that a delegate from Khuzaʿah came to the Prophet (May Allah bless him and his family and grant them peace) in Madinah asking him to fulfil the pact and to grant them support, so he recited before the Prophet (May Allah bless him and his family and grant them peace):
“O Allah, I am a supplicant to Muḥammad, By the pact of his father and our ancient pact.”
So the Prophet (May Allah bless him and his family and grant them peace) answered him, saying – the meaning of which is: “May Allah not grant me victory if I do not grant you victory.”
And among the customs that may be either good or bad is al-qiṭāʿ (tribal seizure), and what I hold is that it is a good and permissible custom – but only in cases of necessity. What makes it appear good in my view, in cases of necessity, is that by it rights are extracted from the other tribe, and that it is lighter and less severe than fighting and raiding; and that they announce in the markets before the qiṭāʿ that “such-and-such tribe is being cut off in such-and-such tribe.”
What is meant by saying that such qiṭāʿ is good is when it is for the sake of extracting a right. As for when it is for other than that, it is not permissible.
If it is said: Qiṭāʿ encompasses the doer of good and the doer of evil, the innocent and the non-innocent, so how can it be good?
We say: Qiṭāʿ encompasses the tribe that contains the aggressor; and it is obligatory upon the tribe to restrain the wrongdoer from his wrongdoing and aggression and to compel him to give people justice. This is something required by Islam and required by tribal customs. If the tribe falls short in this duty and allows the aggressor to persist in his aggression, then it is a partner with him in what he has done.
On that basis, qiṭāʿ against the entire tribe does not cease to be on the side of what is good; and Allah the Exalted has said: “So whoever has assaulted you, then assault him in the same way that he has assaulted you.” [al-Baqarah:194]
If it is said: Some individuals of the tribe may have an excuse for not restraining him from aggression and not compelling him to give justice – such as weakness, or fear, or the like of that by which they are excused before Allah the Exalted – so qiṭāʿ in their regard would be injustice.
We say: Even if the individuals of the tribe are excused for what you have mentioned, they are not excused from declaring disavowal of that aggressor and expelling him from the pact and companionship, as is the established custom among the tribes. For if one of their men overpowers them and they are unable to restrain him, they disavow him and publicly declare that in the markets.
After disavowal from a person, the individuals of his tribe are not held accountable for him. If the tribe does not do that, then it is responsible for the actions of that person. Such is what the customs have decreed.
And what I hold is that they do not contradict the rulings of the Sharīʿah. For Allah the Exalted has said in His Noble Book: “And cooperate in righteousness and piety, but do not cooperate in sin and aggression. And fear Allah; indeed, Allah is severe in penalty.” [al-Māʾidah:2] And He said: “They used not to forbid one another from wrongdoing that they did. How wretched was that which they were doing.” [al-Māʾidah:79] and other verses in this regard.
All that we have mentioned is only deemed good and permissible with certain conditions:
First: That they do not make use of anything at all from the wealth of those against whom qiṭāʿ is made.
Second: That they preserve their property from loss, damage, and waste.
Third: That they return everything they have held back to those against whom qiṭāʿ is made.
Fourth: That they do not beat, wound, or kill in their qiṭāʿ.
Fifth: That justice and fairness be absent from the arena.
Sixth: That the opponent (the wrongdoer) persists in refusing to give justice, and his people persist in refusing to compel him to give justice.
Indeed, we have only adopted this opinion because of what is established from the general principles which state that dealings of Muslims should be interpreted in the light of validity as far as possible, and that the Muslim must be presumed innocent and sound as long as a good interpretation can be found for him.
Likewise, among the theoretical maxims with the scholars is that “the madhhab of the common person is the madhhab of the one whom he follows,” and doubtless it is permissible for the Imām of the Muslims to do such acts (of force) to restrain the obstinate wrongdoers.
Yes, what was obligatory is that the Sultan of the Muslims undertake to give people justice against one another, to secure the roads, to restrain the wrongdoer from his wrongdoing, and to repel corruption and the corrupters. But this Sultan has in fact disappeared entirely from many of the regions and deserts inhabited by the Yemeni tribes; and it has been established in reason that some evils are less than others. Thus qiṭāʿ is the lightest and least severe means by which the wrongdoer and the obstinate one can be restrained from his wrongdoing and obstinacy.
If it is said: There is another solution which is safer in this world and the Hereafter, namely to be patient with injustice and remain silent.
We say: The Arab tribes refuse humiliation and do not accept injustice and disgrace; they prefer death over that. It is not possible for the Arab tribes to abandon this trait by which they have been known since ancient times. Arab poets have spoken much on this, of which is:
“No one remains under an oppression intended for him,
Except two abject ones: the wild donkey of the encampment and the stake.
This one is bound by his rope to the place of trouncing,
And that one is struck, yet none feels pity for him.”
And Imām Yaḥyā ibn Zayd (Peace be upon them) said:
“O son of Zayd, did not Zayd say:
Whoever loves life will live in humiliation.”

Source: Min Thimār al-ʿIlm wa al-Ḥikmah vol.2