چکیده:
One of the ways for discovering the Islamic laws is referring to wise men custom and practice (Banae Oghala). Most of the past Islamic jurisprudents (Shariat Scientists) believe that the condition of its validity is being of that custom or its criteria in the age of the Masoom (p.). A new theory has been advanced in this article in which many of the new wise men customs will be valid in some special circumstances without needing to being in that age. The significant usage of this theory is for the finding of the Islamic foundation for many new legal systems like intellectual property law.
خلاصه ماشینی:
moc o} Introduction One of the topics that has a long-standing and prominent presence in jurisprudence is the institution of 'urf 'aam (common custom) or 'bena al-'uqala' (the established practice of rational people), to which jurists have inevitably referred in their ijtihad (independent reasoning) and continue to do so.
While 'urf enjoys a special position in the jurisprudence of the Ahl al-Sunnah (people of the tradition of the Prophet Muhammad) and is often considered an independent source and evidence alongside other sources of inference, Shi'a jurists view this institution differently, and many consider it a proof within the framework of the Sunnah (tradition) and in the form of 'taqrir al-ma'sum (peace be upon him)' (endorsement by the Infallible Imam).
B) Critique of the Arguments for the Legal Validity of Common Custom (‘Bena al-'Uqala’) as a Source for Discovering the Ruling 1) Critique and Examination of Religious Texts Indicating the Obligation of Enjoining Good: According to various Sunni interpretations, the meaning of “urf” in the aforementioned verse is “good deeds and actions,” not everything that is considered good by people.
1) The Necessity of Connecting Practice to the Time of the Imam (peace be upon him) Proponents of the first theory are divided into several groups: 1- All rational customs, whether based on innate nature and general rational principles or arising from the specific needs of each era, must have continued in some way until the time of the Lawgiver in order to be considered valid.
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