2019
DOI: 10.1163/15685195-00264p03
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Filling Gaps in Legislation: The Use of Fiqh by Contemporary Courts in Morocco, Egypt, and Indonesia

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 o… Show more

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Cited by 6 publications
(6 citation statements)
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“…According to Shehada, an important feature of the Gazan shariʿa courts is orality, which renders it impossible to accumulate case law. This stands in contrast to several Muslim-majority countries where rule formulation and interpretation are constrained through the precedents of supreme jurisdiction, formal or informal digests of quotations, and templates in a manner that has little to do with the classical method, which prohibited judicial precedent (Dupret et al 2019).…”
Section: Muslim Family Law In Action and In Contextmentioning
confidence: 89%
See 1 more Smart Citation
“…According to Shehada, an important feature of the Gazan shariʿa courts is orality, which renders it impossible to accumulate case law. This stands in contrast to several Muslim-majority countries where rule formulation and interpretation are constrained through the precedents of supreme jurisdiction, formal or informal digests of quotations, and templates in a manner that has little to do with the classical method, which prohibited judicial precedent (Dupret et al 2019).…”
Section: Muslim Family Law In Action and In Contextmentioning
confidence: 89%
“…French-style hierarchical courts were introduced to ensure that judges applied the codified laws consistently. These courts were staffed by judges trained in Western-style law schools (Dupret et al 2019;Wood 2016). In a recent major adjustment to the Egyptian court system, in effect since 2004, family courts have been established to deal with all personal status issues.…”
Section: Codifying Family Relationsmentioning
confidence: 99%
“…Reforms in the fi eld of Muslim personal status have proceeded gradually and in a piecemeal manner. As further testimony to the hybrid nature of Muslim family law, Article 3 of Law no 1 of 2000 refers judges to the predominant opinion of the Hanafi school where there are silences in the law (Dupret et al 2019). Hence, old versions of law coexist with modern law codes in a manner which brings into relief the hybrid nature of Muslim family law.…”
Section: The Role Of Religion In Egyptian Personal Status Lawmentioning
confidence: 99%
“…The same applies in the context of Egypt, where the scholarly literature tends to posit that fi qh, as found in the classical legal manuals, continues to be applied in domains where the statutory codes are silent. This assumption, however, underestimates the fundamental changes brought about by the importation of a civil law model and its infl uence on the inner dynamics of legal reasoning as well as the social and intellectual diversity in contemporary Muslim societies (Dupret et al 2019). In the following section, I explore the judicial mobilisation of human rights NGOs in the fi eld of personal status law.…”
Section: A the Role Of Technologymentioning
confidence: 99%
“…French-style hierarchical courts were introduced to ensure that judges applied the codified laws consistently. These courts were staffed by judges trained in Western-style law schools (Dupret et al 2019). This tendency to valorise the nuclear family has been further consolidated by the creation of specialised state-run family courts tasked with adjudicating family issues 3 and a family insurance fund run by Bank Nasr 4 in 2004.…”
Section: Egyptian Personal Status Lawmentioning
confidence: 99%