العرف كمصدر تشريعي وأثره في إطار الشريعة الإسلامية والقانون الوضعي

Abstract

This research aims to shed light on customs as a legislative source in both Islamic and statutory law. Customs are considered one of the legislative sources under the provisions of Islamic Sharia and statutory law, and they have an impact on both, in addition to the authority they hold as evidence. The research examines the advantages, pillars, and effects of customs. Islamic scholars have paid significant attention to customs, setting regulations for them, and considering them a legitimate source as long as they do not contradict a definitive text or legitimate evidence. Customs have also influenced secular laws and have been an important source for them. Unlike statutory law, customs in Islamic jurisprudence are subject to strict conditions, whereby the beneficial custom is approved, and the harmful one is annulled. However, secular law, which makes custom binding on individuals, may adopt both beneficial and harmful customs due to the lack of distinction between them, provided they are consistent with the law and do not contravene public order. Islamic jurisprudence requires the presence of the moral element in customs, without addressing the material element, unlike secular law which requires the presence of both material and moral elements. As a result of the variations in customs within a single country according to regions, the legal unity of customs is negated, contrary to the law. Additionally, some sections of the law do not align with customs, as is the case with penal law where there is no punishment except by text, whereas custom is considered in private, international, civil, administrative, and constitutional law. The study recommends examining examples and applications based on customary practices, since customs are not documented. It suggests that authorities responsible for issuing fatwas and judicial decisions document the prevailing and practiced customs among individuals to rely on them during judgments, fatwas, and dispute resolution.