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 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.

Introduction

“…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).…”

“…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.…”

Reflections on Law, Religion, and Technology: Legal Mobilisation in the Area of Egyptian Paternity Law

“…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.…”

“…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.…”

With the Best of Intentions

“…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.…”