Общие принципы фикха как отражение юридических особенностей исламского права

Право. Журнал Высшей школы экономики. 2018. № 3. С. 50–80.

Syukiyaynen L.

The prevailing in Russian legal science view understands Islamic law as synonymous with Sharia which is a system of prepositions of Quran and Sunna that is the mode of life of Prophet Muhammad fixed in so called hadiths (sayings) of his fellows. Being reduced to Sharia Islamic law is approached to as complex of different social norms in which legal rules are not separated in principle from religious commands. However, an in-depth analysis enables us to conclude that on the basis of normative part of Sharia Islamic law as a legal phenomenon emerged. It was Fiqh that played a key role in this process. The Islamic thought understands Fiqh as a science dealing with Sharia rules of human behavior together with these norms themselves. Within such prescriptions there are such rules which meet juridical criteria and therefore may be recognized as norms of Islamic law in scientific meaning of the term. Fiqh was not limited by elaboration of particular and separate norms of legal character but it succeeded in formulation of detailed system of its general principles. They are the main argument for the benefit of existing of Islamic law as legal phenomenon in proper sense. The modern Islamic thought puts forward different classifications of the general principles of Fiqh. The most appropriate one is that which distinguishes a few groups of such principles devoted to concrete themes. Each of these groups has its core including a key independent principle. Most of these principles are a concentrated manifestation of legal nature of Islamic law. Their emergence is the remarkable contribution of Fiqh understood as a legal doctrine in the development of Islamic Law as well as in the world legal culture. These principles are legal by their contents and do not bear direct religious features on themselves. They determine legal nature of Islamic law which is a juridical phenomenon because of the mentioned principles and not for being based on religious revelation. That is the principles of Fiqh which let Islamic law to cooperate with other legal cultures on the basis of many joint juridical characteristics shared by them.

Keywords: исламское право, законодательство, конституция, ислам, legislation, Islam, constitution, legal doctrine, правовая доктрина, Islamic law, Sharia, фикх, Коран, шариат, Quran, принципы фикха, сунна, Sunna, Fiqh, principles of Fiqh, Majalla, source of legislation, Маджалла, источник законодательства

Publication based on the results of: Исламское право - самостоятельная правовая система (2018)