The effect of custom and custom in directing legal rulings and legal texts and the forms of that effect in general and in detail

Author

Ministry of Awqaf and Islamic Affairs - State of Kuwait

Abstract

Whoever closely looked into Islamic law will find that it took into account current custom and custom among people in legislation, adopted them, and referred to them in many provisions: it referred them to penance and alimony, imposed blood money on the sane, stipulated competence in marriage, and considered nervousness in guardianship and inheritance. . فقال الله سبحانه وتعالى مخاطبا صلى الله عليه وسلم  وخطابُه صلى الله عليه وسلم فيما لا يخصه خطابٌ لأمته في الحقيقة-  (خُذِ الْعَفْوَ وَأْمُرْ بِالْعُرْفِ(، قال تعالى: (فَکَفَّارَتُهُ إِطْعَامُ عَشَرَةِ مَسَاکِينَ مِنْ أَوْسَطِ مَا تُطْعِمُونَ أَهْلِيکُمْ أَوْ کِسْوَتُهُمْ أَوْ تَحْرِيرُ رَقَبَةٍ) [سورة Al-Ma’idah: 89] And the Prophet, peace and blessings of God be upon him, said to Hind, may God be pleased with her: “Take what suffices you and your son in kindness.” He referred it to the sufficiency that is known by custom when he learned about capacity from the condition of Abu Sufyan, may God be pleased with him. Custom and custom are two official and basic sources of those laws, the expansion of legislation and codification did not affect them, but rather the expansion and spread of legislation affected the position occupied by custom or custom in the law of each country. Rather, it may have exaggerated its influence at times, restricting the absolutes of Sharia and allocating its generalities, and making it a first source for the laws of some countries - it was necessary to explain the forms of that influence, which includes: The Sharia and the law, and its arrangement scientifically derived from the doctrines of the scholars of the regions and legal scholars, and this is the need that this research tries to meet. This research aims to show the impact of custom and custom in directing legal rulings and legal texts, with mentioning the most important features of that influence in general and in detail.

Keywords

Main Subjects