Фикх - источник современного права в арабских странах

Право. Журнал Высшей школы экономики. 2019. № 4. С. 222–245.

Syukiyaynen L.

Genuine nature of Islamic Law as an independent legal system manifests itself clearly in its sources. During many centuries the Islamic legal doctrine (Fiqh) was playing this role which was replaced by legislation only in 19-th century. But till now Fiqh is one of the sources of law in Arab countries. The continuing islamization of their legal systems includes codification of Islamic legal doctrine which acquires the role of material (historic) source of law. This process relies on recognition of Sharia as a source of legislation by constitutions of many Arab states. Together with it ordinary legal acts often stress that their contents is also derived from Fiqh. Such feature mainly concerns personal status relations based in majority of Arab countries on legislation derived from views of Islamic legal doctrine. At the same time this doctrine is playing the role of official (judicial) source of contemporary law in the mentioned countries. For instance, in Saudi Arabia Fiqh is still the prevailing source of law compared with statutory acts. In other countries the doctrine status as a judicial source of law is fixed officially. It refers not only to private law but criminal legislation as well. Many legal norms could not be realized without applying Fiqh provisions. In some Arab countries interpretation of legal norms includes appealing to Sharia. Islamic legal doctrine is playing active role as subsidiary source of contemporary law, first of all in private branches of legislation. Such legislation recognizes Sharia, its principles or different schools of Fiqh as subsidiary source. This covers not only personal status legislation which is based totally on Islamic provisions but also civil codes of some Arab countries which are influenced not by Sharia but by European legal culture. Commercial, tax and judicial procedure acts also recognize Islamic legal doctrine as a subsidiary source of law. In Sudan there is a unique situation because in this country Sharia and Fiqh are fixed as subsidiary source of law for entire legal system excluding criminal legislation.

Keywords: исламское право, Islamic law, Sharia, фикх, шариат, Fiqh, material source of law, judicial source of law, subsidiary source of law, Islamic legal doctrine, codification of Fiqh, islamization of legal system, исламская правовая доктрина, кодификация фикха, исламизация правовой системы, материальный источник права, юридический источник права, субсидиарный источник права

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