فقہ اسلامی اور مغربی قانون کانظریہ عرف و رواج ایک تحقیقی و تقابلی جائزہ (قواعدِ فقہیہ اور مغربی قواعدِ نصفت کے تناظر میں)

Islamic jurisprudence and Western law, the theory of custom, a research and comparative review (In the context of jurisprudential rules and western rules of half-life)

Abstract

Man is basically a social animal. From the very beginning of his social life, he has adopted and envisaged certain ways and means to fulfill his social needs. The evolutionary history of society from Stone Age to the modern era has undergone complex and constant changes in this respect. Religion, geography, history, economics and various other social environments have synthesized the present social customs; all the social factors have given birth to a particular local culture. A social custom has its source in the classical culture of the land and has the sanction of religion and ethical composition of the society. The religion and the civil law encourage and sanction the ways and means to fulfill the rituals and the legal life of the people. The customs survive in a particular society provided they are not contrary to the basic norms of the society. Therefore norms and ethical frame work of the society along with the religious beliefs shape and nourish the modes of customs. Having all these variables a social practice becomes recognized as classical custom. The study underhand focuses on the status and role of customs in the light of Islamic jurisprudence and the western law. Because both the Islamic jurisprudence and the western law are the force and sanction behind the customary frame work of society. Therefore we will try to evaluate and analyze the shape, form and mode of a social customs in this regard with the help of Al-Qawaid-Al-Fiqhiya and Maxims of equity.