Leonid Syukiyaynen

Fikh as Source of Contemporary Law in Arab Countries

2019. No. 4. P. 222–245 [issue contents]
Genuine nature of Islamic Law as an independent legal system manifests itself clearlyin its sources. During many centuries the Islamic legal doctrine (Fiqh) was playing thisrole which was replaced by legislation only in 19th century. But till now Fiqh is one ofthe sources of law in Arab countries. The continuing islamization of their legal systemsincludes 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 byconstitutions of many Arab states. Together with it ordinary legal acts often stress thattheir contents is also derived from Fiqh. Such feature mainly concerns personal statusrelations based in majority of Arab countries on legislation derived from views of Islamiclegal doctrine. At the same time this doctrine is playing the role of official (judicial) sourceof contemporary law in the mentioned countries. For instance, in Saudi Arabia Fiqh is stillthe prevailing source of law compared with statutory acts. In other countries the doctrinestatus as a judicial source of law is fixed officially. It refers not only to private law butcriminal legislation as well. Many legal norms could not be realized without applying Fiqhprovisions. In some Arab countries interpretation of legal norms includes appealing toSharia. 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, itsprinciples or different schools of Fiqh as subsidiary source. This covers not only personalstatus legislation which is based totally on Islamic provisions but also civil codes ofsome 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 asubsidiary source of law. In Sudan there is a unique situation because in this countrySharia and Fiqh are fixed as subsidiary source of law for entire legal system excludingcriminal legislation.
For citation: Syukiyainen L.R. (2019) Fikh as Source of Contemporary Law in Arab Countries. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 4, pp. 222–245 (in Russian) DOI: 10.17323/2072-8166.2019.4.222.245
Citation: Syukiyaynen L. (2019) Fikkh — istochnik sovremennogo prava v arabskikh stranakh [Fikh as Source of Contemporary Law in Arab Countries]. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 4, pp. 222-245 (in Russian)
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