Common Law and its Role in the Derivation of Canonical Rules

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Abstract
Many of the legal principles, rules of jurisprudence and religious decrees are based on the appearance of verses and hadiths and one of the most appropriate references for judging appearance is common law. Reasons underlying necessary religious rules, forbidding evil acts, the right application of Quranic verses and hadiths all rest on common law. An investigation of Islamic jurisprudence literature reveals that sunnite scholars point to common law using the terms urf and aadat. These terms has also been current in Shiite jurisprudence literature up until two centuries ago. Then, terms become current. Shiite scholars have usually used the terms Sireh Oqala and Targheh Oqala (ways of the wise) to refer to to this practice. This article mentions the conditions for the validity of common law and common-law practices. The Shiite and the Sunnite do not agree on common law as a final proof. Sunnite scholars, particularly the Hanafi’s, consider common law the final proof and widely depend on it. There are three points of view among Shiite scholars: some believe that common law is essential and does not need the approval of the tegislator some believe that there is no difference between the decrees of the common law and those of the reason and some others believe that the validity of the common law depends on the approval of the legislator. This article attempts to show the influence the common law has on Islamic jurisprudence and Iranian legal system.

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Journal of Studies in Islamic Law & Jurisprudence
Volume 1, Issue 1 - Serial Number 1
February 2010
Pages 45-73

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