Abstract:
The present article is an attempt to examine the place of custom in international law and Islamic law, in the sense that it can be said that custom and habit are the oldest legal phenomena and from very ancient times to the not-so-distant past, it has been the only manifestation and front of law. For a detailed review, the author first deals with the discussion of custom in Rome, Anglo-Saxon and Common Law international law. In the following, he discussed custom in Islamic law and law and examined examples of custom in Islamic law and the role of custom in the emergence of the Islamic jurisprudence system. The author concludes at the endthat the Diet system is not an established decree of Islam, but Islam signed it and is part of the signed decrees, and custom and habit played a significant role in its creation. Also, according to the mentioned materials, it can be concluded that the payment of dowry on the part of Aqila is also subject to custom.
Machine summary:
"This legal system has been able to keep its legal machine alive and moving forever by signing local customs and referring the judge to them and validly recognizing reason, consensus, correction and approval, and on the other hand, Islamic law has not gone too far in the validity of custom. which is against human affairs and the principle of justice, sanctity and honor inherent in man, laws are not like physical and natural laws that follow the principle of causation, but legal laws follow the principle of end, because it considers man as a free-willed subject being who is forced is notRather, his personality depends on the fact that he is a creative and creative being, because the Qur'an has introduced him as God's successor on earth, and the secret of this succession lies only in this attribute of creativity, once again the role of custom, habit, reason, and consensus only from the old. And it prevents rights from being worn out and keeps them always changing and perfect in adapting and adapting to people's daily needs. Another thing is that the Sunnah of the Prophet has approved most of the Arab customs, because the Prophet was calm and satisfied with all the customs of the Arabs, and therefore all of them became part of the traditions of Islam.And on this basis, some scholars [Saanei: 81] consider one of the factors that cause disagreements in many scientific issues between different schools of Islamic jurisprudence, especially in cases where there was no explicit text in the Holy Book, the implementation and development of Islamic law according to the conditions and They have mentioned local customs in harmony with natural factors.