THE DISCRETIONARY RIGHT OF THE JUDGE TO USE A RELIGIOUS FATWA

Abstract

The law gives the trial judge the right to issue fair and appropriate rulings that are consistent with the provisions of the law when there is a case before him. This right is consistent with Article 1 of the amended Iraqi Law of Evidence No. 107 of 1979, in which the court has a role in cases not stipulated in the law. Thus, it is left to the discretion of the judge. Therefore, the judge in charge has the right to seek the assistance of a religious fatwa when there is no legal text related to the dispute presented in front of him. The first article does not oblige the judge to seek the help of a specific doctrine, especially in cases of halal and haram (permissible and forbidden according to an Islamic religious point of view) that require knowledge of Islamic jurisprudence. As for the non-Muslim cases that are difficult for the judge to comprehend their rulings due to the diversity and multiplicity of religions and sects, the judge should ask non-Muslim religious references to know the jurisprudential ruling on the dispute in order to issue an appropriate ruling on the case presented before him.