Evidence for the consideration of custom

Document Type : Original Article

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Faculty of Law-Sorman, University of Sabratha, Libya.

Abstract

Although classical Islamic legal theory did not recognize custom as a source of law, in particular, they discussed the status of custom already in the pre-classical period. Custom has been incorporated into Islamic law in a number of ways: by including certain practices in the category of Sunnah or consensus. By resorting to judicial preference and secondary sources of law, such as fatwas; using legal fantasies. As these methods were not always appropriate to deal with the questions posed by particular practices to jurists, there was subsequently a growing tendency to recognize custom as a source of law.

Custom in Islamic jurisprudence is based on rulings if there is no text or consensus. The rulings based on it change according to its change, and the origin of its connotation is not just because it is a well-known matter, but rather what is reported from it of interest. At that time, we do not see the meaning of the requirement that it be general and comprehensive, because the interest is acted upon, whether it is general in all countries or in a specific country. That is why it was said in the rules that the custom is a public or private court.

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