PRINCIPLES OF ISLAMIC LAW (SHARIAA) Reference to Shariaa came in two places in the Egyptian Legislations

PRINCIPLES OF ISLAMIC LAW.doc

PRINCIPLES OF ISLAMIC LAW (SHARIAA)

Reference to Shariaa came in two places in the Egyptian Legislations

Article (2) of the Constitution                                     Article (1) of the Civil Law

                                                                                                                        

This article refers to the fact that                                    this article refers to the rule that

Islamic Shariaa is the basic source                                 states; the judge shall apply in  

Of Legislations                                                               Judgment according to                                                                                                    

                                                                                       Legislations then customs

                                                                                       Then   Principles of Islamic

                                                                                       Law then finally according to      

                                                                                       Natural Law and rules of equity

                                                                                                      

                                                                                                      

Here Shariaa is a principle formal                                     here the Civil law is addressing

Source for Legislation. The Legislator                               Judges setting to them guide 

Takes it into consideration when he                                  lines as to their work as judges.

Is legislating new law or amending                                    here Shariaa is a secondary

Existing ones.                                                                   Formal source that comes after

You see that the constitution here is                                  legislations and customs but before 

Addressing the legislator.                                                  Natural Law & Rules of Equity.

You can also see that this article

Although states that Principles of

Islamic law (Shariaa) is a basic source,

Yet in application the legislator does

Not have to follow it literally. Ex:  

The theft penalty.  

                                                                                                       

                                                                                                     

Regarding the above mentioned legal rules, you can see that Shariaa is always a Formal source of legislations, however according to the constitution it is a principle formal source, while according to the civil law it is a secondary formal source.

According to the constitution it is the basic formal source for the legislator when he is enacting any type of laws and for all kinds of relations in the society (there are commercial and civil matters in the society and there are the personal family matters).

According to the commercial and civil matters Shariaa is not treated as a basic principle formal source, but it is treated as a secondary formal source, because these matters are usually governed and ruled by the positive law (legislations) enacted by the legislator who is only human and usually these laws are adopted from the French law.

While in the personal family matters Shariaa is always treated as a principle formal source for legislation and for application by the judges. In the family matters the legislator has completely adopted the rules of Islamic Law to govern these issues and the judge applies only the rules of Shariaa that was set down by the legislator as regulating rules for the family matters in the society.

So, you have to differentiate between Shariaa as a basic formal source for legislation as set down in article (2) of the Egyptian Constitution and shariaa as a secondary formal source according to article (1) of the Civil law.

Also you have to differentiate between applying shariaa on civil and commercial matters and applying it on family matters.

The coming diagram may simplify the vision.

According to article one of the Civil law:

The sources of judgment for the judge are consequently as follows,

Legislations à

                         à   Principle formal sources  à   Commercial and Civil matters.

Customs       à

                                          

Principles of Islamic Law à  Secondary formal source à  Commercial and

  (Shariaa)                                                                                    Civil matters

                                          à   Principle formal source   à   Family matters.

Natural Law & Rules of Equity  à  the final source that the judge can consider if he did

                                                           Not find anything to apply in the above sources.