RT Article
T1 Filling Gaps in Legislation: The Use of Fiqh by Contemporary Courts in Morocco, Egypt, and Indonesia
JF Islamic law and society
VO 26
IS 4
SP 405
OP 436
A1 Dupret, Baudouin
A1 Bouhya, Adil
A1 Lindbekk, Monika
A1 Yakin, Ayang Utriza
LA English
PB Brill
YR 2019
UL https://www.ixtheo.de/Record/1820639053
AB Abstract In most Muslim-majority countries, the legislators who drafted family law codes sought to produce a codified version of one of the many Islamic fiqh schools. Such is the case, from West to East, for Morocco, Egypt, and Indonesia. There are situations, however, in which the law remains silent. In such cases, judges must turn to fiqh in order to find appropriate provisions. It is up to judges to interpret the law and to locate the relevant rule. In this process, judges use new interpretive techniques and modes of reasoning. After addressing institutional and legal transformations in Morocco, Egypt, and Indonesia, this article focuses on the domain of family law. We examine cases that illustrate how judges seek a solution in the body of fiqh when asked to authenticate a marriage. In conclusion, we put forward an argument about how judges who are required to refer to fiqh deal with this matter within the context of positive, codified, and standardized law. We argue that the methodology and epistemology adopted by contemporary judges, the legal material on which they draw, and the means by which they refer to this material have fundamentally altered the nature of legal cognition and of law itself.
K1 law in action
K1 judicial reasoning
K1 positive law
K1 Indonesia
K1 Egypt
K1 Morocco
K1 marriage authentication
DO 10.1163/15685195-00264P03