تأثير الشريعة الإسلامية على القانون المدني القطري: دراسة مقارنة

Abstract

Commentaries on Comparative Law classify law into three types: Roman, Common or Anglo-Saxon, and Islamic Shari'a. In spite of the fact that Qatari civil law, as well as the majority of Arab legislation, appear to fall within the Roman family, research into the details of these systems reveals the opposite. The importance of this research lies in the fact that it shows the extent of the influence of Islamic Shari'a on Qatari civil law. The problem of conducting this research lies in revealing the extent of the influence of Islamic Shari'a on Qatari civil law, what needs to be done in view of this, and its influence on the legislator and the judge within the context of the applicable legal provisions. This study follows the method of the comparative analytical study of Qatari legal texts and a number of laws from Arab countries, both those contained in constitutions and those contained in civil codes. The study looks at this influence through the text of the permanent constitution of Qatar, which stipulates that Islamic Shari'a is a main source of legislation, and the extent of the influence of this constitutional text on civil law, both texts previously in force and those subsequently in force. Similarly, the fact that civil law refers to Islamic Shari'a as a source of legislation requires the judge to refer to it in the absence of a legal text. This text is subjected to an analytical study in which it is compared to similar Arab texts. The study reaches a number of conclusions and recommendations focusing on how to implement the constitutional text and recommends that Article One of the civil law relating to the enumeration of the sources to which the judge must refer, to be reformulated in light of the analysis of this article. This should be done especially as regards the customary ordering of these sources, the effectiveness of referring to rules of justice, the need to distinguish between Islamic Shari'a and Islamic Fiqh, the call for the door of ijtihad to be reopened in Islamic Fiqh while listing the principles which must be observed and the need for Islamic Fiqh to follow specific principles. The study concludes with some general reflections and detailed provisions drawn from Islamic Shari'a and spelled out in Qatari civil law, which show the extent to which Qatari civil law has been influenced by Islamic Shari'a.