قاعدة الأصل في العادات الحل : دراسة أصولية تطبيقية

الملخص EN

In this paper ‘customs’ precludes ritual acts.

An exploration of the details of ‘customs’ is undertaken: customs being the habits and ways of rational beings, not dependent on the divine-law commands; unlike ritual acts which can only be discovered in detail via divine communication.

The basic continuous rule regarding customary acts is of permissibility except those things God prohibits.

Among the legal and jurisprudential principles related to this is the presumption of continuity (istishab), because acting upon the maxim: ‘the basic rule concerning customs is permissibility’ is based on this notion of presumption; ‘doubt does not negate certainty’, the basic rule regarding customs is a certain immutable rule; and ‘the original status of a thing will take precedent’ and ‘the basic rule regarding ritual acts is of prohibition.’ Related to this maxim is the ‘pardoned’ rank of Islamic normative rules.

This rank is identical to the category of ibahah (legality) that the legists recognise: either the legal legality or the rational legality (otherwise known as: istishab or rational proof—dalil al-‘aql).

No scope exists for innovation in purely habitual acts—these are the acts that the Law has neither demanded nor censured—these remain lawful.

Innovation can only occur in a separate category of customs, namely, those acts that are not purely habitual, but instead are pending upon the Law-Giver demanding or censuring them.

Imitating disbelievers in customary acts can only become a religious innovation when it pertains to mimicking them in one of their particulars of their religious practice, with certain conditions that are required to be met