Reference to Sharia Law in the Codification of Islamic Family Law: the Example of Malaysia

Malaysia gained independence in 1957, the Federal Constitution was declared in 1963. According to the Constitution, the religion of the Federation is Islam. The country, which has carried out various legalization activities since its establishment, enacts separate laws for Muslims and non- Muslims in certain areas of law. In this regard, the Malaysian Islamic Family Law Act was prepared for Muslim citizens in 1984. Although this Law regulates some issues related to family law in depth, it contains more superficial provisions on some other issues by referring to 'Hukum Syara', which we can describe as 'Sharia law'. References to Sharia law are criticized by some views in Malay doctrine. In this study, legal provisions referring to sharia law were examined, considering Malay doctrine and legal practice. For this, respectively; The phrases 'Hukum Syara' and 'Recognized Madhabs' in the text of the law were evaluated. Subsequently, the provisions of the Law on the determined subjects and the opinions in Islamic legal works were examined. The inferences obtained from the study are essentially as follows: Firstly, although the title of the Law says, 'Islamic law', it is noteworthy that the phrase 'Hukum Syara' is preferred in cases where sharia law will be referred to in the text. In our opinion, while the phrase Islamic Law expresses the purpose of legalization, the places where the phrase Hukum Syara is used indicates a more comprehensive set of rules. Secondly, it is understood that the expression 'Recognized Madhabs' refers to the recognized,respected sects (Shafi'i, Hanafi, Maliki, Hanbali) in the context of the Law. The reasons why the legislator occasionally refers to Hukum Syara can be discussed under four main headings. The first of these is the effort of the legislator to reconcile customary and traditional practices with Sharia law; secondly, the aim to ensure legal flexibility and dynamism and to expand the discretion of the practitioner; The third is to avoid repetition in matters regulated in fixed texts and in detail, and the fourth is that the dualist legal structure of the country requires resorting to sharia law.