Recognition of the Usage of Customs in the Jurisprudence System

Subject Areas :

khatereh  shahinfard ¹ (Department of Law, shahrekord Unit, Islamic Azad University, shahrekord, Iran.)
لیلا  مهرابی راد ² (مربی گروه الهیات فقه و مبانی حقوق دانشگاه پیام نور کشور ایران)
Ali  Tavallaei ³ (Associate Professor of Islamic Law Department, Faculty of Humanities, Yazd University, Yazd, Iran)

Received: 2019-12-29 Accepted : 2023-01-23 Published : 2022-11-22

Keywords: convention, Common law, Imamieh jurisprudence, Sunnite Jurisprudence,

Abstract :

Convention is a source of subject laws so that we can consider many cases in the social order to be consequences of the common law or convention. A review of the early Islamic texts indicates that convention has been used as evidence for some minor jurisprudence rules, and the theologians of the 2nd century AH have used it in their jurisprudence system. The present article takes a historical approach to review some functions of conventions in the jurisprudence system. The main difference between Imamieh and the Sunnite is the qualification of conventions in jurisprudence. In Imamieh convention is vastly applied to recognize the subject of rules and determine their concepts, limits, and instances. Implied significations are sometimes based on conventional requirements, and convention is always considered worthwhile as a clue to delimitations and determinations required by the jurisprudence expert. Moreover, exploration of jurisprudence based on the common law which is connected to the age of Innocent Imam (PBUH) can be a tradition. It must be reminded that the essential rules of reasoning and contention are discovered or confirmed on the basis of common law or convention.Key words: convention, common law, Sunnite jurisprudence, Imamieh jurisprudence, general custom, special custom