?
Конституционный статус шариата как источника законодательства в арабских странах
The article touches upon the analysis of provisions of constitutions of Arab countries concerning status of Sharia as source of legislation as well as practice of their interpretation by organs of constitutional control. Constitutions of practically all mentioned countries declare Islam as a religion of the state. Arab lawyers understand this principle in a different way. According to the prevailing view assertion of Sharia role in the legal system demands its constitutional recognition as source of legislation. Such a status is fixed in Arab constitutions in different forms. Some of them provide for Sharia is a main source of legislation using in original text in Arabic the term “main source” in indefinite form without “al” article. Some countries have already acquired legal practice of interpretation of these constitutional norms while solving claims on legislation which contradicts Sharia and its conformity with constitution. For example Federal Supreme court of UAE concluded that constitutional provision about Sharia as a main source of legislation is addressed to the legislature and not to the judicial bodies. That is why Sharia is to be understood as a material or historical source of law. At the same time on the basis of the given constitutional norm together with provisions of laws about judicial power the organ of constitutional control of UAE justified the possibility of direct implementation of Sharia norm as official source of law. Egypt has acquired its own experience of constitutional assertion of Sharia status. The Constitution of 1971 initially considered the principles of Sharia as a main source of legislation. But after an amendment adopted as a result of referendum held in 1980 was introduced the modified constitution provided for these principles were the leading source of legislation. The Supreme constitutional court decided that such constitutional provision was addressed to the legislature. As for contradicting Sharia laws which had been adopted before the mentioned amendment took place they are still affective and confirmative to the constitution as Sharia were not considered to be the leading source of legislation at that time. The role of Sharia as source of law has its own features in both Saudi Arabia and Libya. In general the place Sharia occupies in the legal development of contemporary Arab countries depends upon a number of factors. But its concrete role is determined mainly by legislature and first of all on constitutional level.