چکیده:
This article is an attempt to examine the position 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 until a not so distant past, they have been the only manifestation and forum of law. To conduct a detailed examination, the author first addresses the discussion of custom in Roman, Anglo-Saxon, and Common Law international law. Subsequently, custom in law and Islamic law is discussed, and examples of instances of custom in Islamic law and the role of custom in the emergence of the diyah (blood money) system in Islam are examined. The author concludes at the end that the diyah system is not a foundational ruling of Islam, but rather Islam has endorsed it and it is part of the endorsed rulings, and custom and habit have played a significant role in its emergence. Furthermore, based on the mentioned points, it is concluded that the payment of diyah by the 'aqila (relatives) is also subject to custom.
خلاصه ماشینی:
Furthermore, it was necessary to determine the form and order of presenting legal cases and the procedures of litigation, and the performance of this task was entrusted to the priests, who were responsible for the administration of justice, and other Roman jurists, who would provide methods through the help of customs and traditions and by creating judicial precedents [Eugene Petit: 35].
Since they were more political in nature than judicial, they could not base their solutions directly on local customs or Roman law; in short, the judgments of these courts inferred many elements and materials of their rulings through the selection and combination of diverse local customs, and they also sought help from Roman law, skillfully reshaping them and absorbing them into their rulings in a completely new way, such that their decisions were regarded as acts of pure reason, and they themselves never mentioned the use of these sources in order to preserve their affairs and independence of opinion.
In this way, it is observed how in this land, courts of equity were established and expanded based on specific principles and standards that were far from local customs, [Juan J 1: 23] and the rules of equity were accepted as a supplement and corrector of Common Law, and their distinguishing feature was their application by the Chancellor's courts in the 15th and 16th centuries AD.
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