Paternal Filiation in Muslim-Majority Environments: A Comparative Look at the Interpretive Practice of Positive Islamic Law in Indonesia, Egypt, and Morocco
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2023
- handle: 10670/1.63lzsx
- halshs: halshs-04371065
- doi: 10.1163/22124810-20230002
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info:eu-repo/semantics/altIdentifier/doi/10.1163/22124810-20230002
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Mots-clés
Indonesia Egypt Morocco Muslim-majority societies paternal filiation (nasab) Islamic law state law court casesSujets proches
Civil law (Islamic law) Law, Islamic Law in the Qurʼan Sharia (Islamic law) Law, Arab Qurʼan--LawCiter ce document
Baudouin Dupret et al., « Paternal Filiation in Muslim-Majority Environments: A Comparative Look at the Interpretive Practice of Positive Islamic Law in Indonesia, Egypt, and Morocco », HAL-SHS : droit et gestion, ID : 10.1163/22124810-20230002
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In most Muslim-majority countries, Islamic normativity underwent a process of “positivization” completely altering the sense which is made of these norms and the ways through which they are obtained. This article aims to deepen our understanding of this phenomenon through a comparative examination of an issue addressed in classical fiqh , partly legislated in modern statutes and codes, sensitive to the progress of scientific evidentiary methods, and largely at judges’ discretion. It proceeds, for each of the three countries under study (Indonesia, Egypt, and Morocco), to describe the situation, starting with the legal system, family law, and the question of paternal filiation ( ithbât al-nasab , in Arabic), then paying attention to the “trajectory” of a recent case, from first-instance decisions to final rulings. In conclusion, it focuses on the room that the combination of fiqh principles and contemporary legal sources and thinking opens for creative analogy, radically innovative interpretation, and polycentric tensions between various jurisdictions.