دور العرف في سد الفراغ التشريعي : بحث مقارن بالشريعة الإسلامية

Abstract EN

The custom plays an important role in two occasions first : when there is a shortage in the legation then the custom completes it (complementary to the legislation) .

this is in countries which deam the custom as an official (source of low like Iraq and Egypt second : when the legislation is implemented , here the custom clarities the requirements of this implementation here, custom is (assistant to the legislation) Then the question is : what is the basis of the power of custom that gives custom the characteristic of law ? in the answer of this question, we find four Direction : some refers to (the consent of society) another raters to the (social necessities) A third direction find the basis of the power in the (judicial application) and fourthly is the (consent of the legislator).

Our study is comparative on between the legal jurisprudence and the Islamic jurisprudence the study concluded that custom should not be deamed as an indebendant , and creatire source of the legal rule, however, it can be rettered to, for the proper application of legislation.

custom is closer to the interpretation sources rather than official sources of law .