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Volume :1 Issue : 4 1975      Add To Cart                                                                    Download

THE FUTURE OF LEGISLATING FROM ISLAMIC FIQH

Auther : Mohammed Farouk Al-Nabhan

 
 
         The author believes that Islamic ideology is the main bond which ties the Gulf countries together, and the basis of these societies.  He thus cares for the foundation of a new law based on Islam with the hope that the new social and economic realities which the Gulf countries are witnessing today will facilitate the achievement of this law.
        
        The author studies the case of the Kuwaiti constitution, and then moves on to study the means of enriching and renewing Islamic Fiqh to be the source of laws in Moslem countries.
        
         The Kuwaiti constitution states Kuwait is a Moslem Arab country and is proud of belonging to the Moslem family.  Its second article states: “Islam is the religion of the state and Islamic Shari’a is a main source of Legislation”. The constitution did not state that Shari’a is “the” main source of legislation, which enables the legislator to use other sources on condition that they do no contradict with Shari’a.  The legislator must heavily rely on Shari’a and can use other sources only in two cases: if the area concerned was not handled by Shari’a, like aviation laws; and whereby the legislator has to legislate for the newly arising needs of people.
 
         Kuwaiti laws are of three types: a) those taken completely from Shari’a like personal affairs law, b) those taken originally from Shari’a but which were modified like the civil law, c) those taken from sources other than Shari’a like the penal code, commercial law, labor law, etc...
        
         The author, then, discusses the law of personal affairs.  He says that no such law has been passed yet in Kuwait (such a law would be submitted to the Kuwaiti Parliament soon) and Kuwaiti courts today apply the regulations of Imam Malek to personal affairs.  However, these regulations are not collected in one book, and locating them demands great efforts and a long time.  Moreover, there might be more than one opinion or saying quoted from the Imam concerning the same problem, and this confuses the Judge. That is why the Ministry of Justice has sought to pass a law of personal affairs which takes into consideration:
 
1.  Imam Malek’s regulations, as long as they coincide with people’s traditions, taking
only one opinion regarding each problem.
2.  Resorting to the other three Imams’ regulations: Abu Hanifa, Shafi’i and Ahmad bin 
Hanbel.
3.  To abide by the four Imams’ regulations in all cases, and not to trespass them
except rarely and when such a trespass serves public interests.
        
         In the case of civil law, Kuwait also does have on of her own and still follows the Ottoman journal of civil law “Judicial Regulations”.  However, the Kuwaiti legislator has cancelled many of the Journal’s regulations and introduced many regulations in the field of commercial law which are not taken from the Shari’a.  This has led to an overlap oppose the dependence on the “Judicial Regulations Journal” as a civil law in the Arab and Moslem countries, because it makes Islamic legislation seen very rigid and thus sustains the mistakes of the committee which has published the Journal.
 
         The author also believes that the Gulf countries would soon face two alternatives: Islam or secularism.  Since secularism is officially and popularly rejected, the Gulf States should hurry to reform Islamic conceptions which were mixed with traditions taken from the dark ages of Islam.
 
         The author suggests that Islamic Fiqh is not merely the rules written in various law textbooks, but the rules which were extracted from Islam and which could be extracted today and in the future.
 
         The rules of Islamic Fiqh are not limited or restricted since they represent the interpretations of the “ulama”.  The texts of the Qoran and the Sunna are fixed and final.  Therefore, new laws could be extracted from them in accordance with the spirit of the age.  The author then mentions the rules which must be observed in understanding fixed texts:

  a)     Understanding the text in terms of collective interests.

  b)    Understanding them in terms of contemporary developments.

  c)     Associating the text with the spirit and aim of the text.

         The author ends his article by calling for the establishment of a “scientific council for legal research”, which extracts new laws from the Shari’a, and which would represent an Islamic reform movement of conceptions, laws and customs.

 

 

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