The effect of Urf (common law) on family laws in Islamic Jurisprudence

Abstract

Common law as something accepted by the rule of wisdom found in the very self of humans formed the earliest type of the legal systems of societies. In most of the legal systems of the world, common law is known as one of the most important resources and is of high significance. Most of the Islamic jurisprudents agree on the authority of common law as an independent or dependent reason or proof. In this regard, the jurisprudents have referred to reasons of the Book (Holy Quran), the Tradition (Sunna), and wisdom. Family laws are included as the most potential fields for the common law to play a significant role in updating the rules and placing them in the right path of recognizing the required components. Thus, by applying a descriptive-analytical method, the present study attempts at studying the function of common law in laws related to the family through investigating the nature, range of inclusion, and legitimacy of common law among the jurisprudents of different Islamic schools and sects as well as studying the opponents’ reasons for its documentary authority