Filling Gaps in Legislation: The Use of Fiqh in Contemporary Courts in Morocco, Egypt, and Indonesia

Abstract

In this chapter we describe the methods judges use to fill what is often called “the silences of the law,” that is, gaps in legislation, in the domain of family law in three countries: Morocco, Egypt, and Indonesia. More specifically, we explore the role and place of uncodified fiqh in contemporary legislation and adjudication in the field of personal status law. We proceed in four steps. First, we address the institutional and legal transformations affecting law, especially family law, in Morocco, Egypt, and Indonesia, focusing on what may be termed a legal revolution that made it possible to speak of law in terms of codes and to classify fiqh as a subsidiary source when legislation is silent. Second, we turn to the specific domain of family law, briefly discussing statute law, case law, and legal practice in each of the three countries. Third, on the basis of marriage authentication cases (ithbât al-zawâj, ithbât al-nikâh), we examine how, practically speaking, judges seek a solution in the body of fiqh. Finally, we develop an argument about the nature of judicial work in the management of “references to Islam” within the framework of positive, codified, and standardized law.