Arab Laws Research Articles

Returning the Defect in Islamic Jurisprudence and Jordanian Civil Law: A Comparative Study

This study aims to clarify the rule regarding the decrease in value due to the fault in the price of the sale, the instances in which it is permissible to review, and when it is not. The study also discusses the conditions for reviewing when the contract cancellation is impossible, the extent to which the defective party can return, and how to calculate it. In addition, it compares the Jordanian civil law with other Arab laws influenced by it and following its path. The study relied on two methodologies: the deductive method and comparative method, reaching several results and some recommendations. The most important findings are that Jordanian law has several contradictions when regulating the rules of defect options. Accordingly, the study recommends the Jordanian legislator to resolve the contradiction between Article (198) and Paragraph 1 of Article (513) either by removing one of the two articles, with Article (198) being the most likely to be removed, or by limiting Article (198) by adding the phrase "in case of impossibility" of cancellation, to become: "In case of impossibility of canceling the contract due to a defect, the contract holder may retain the contracted item and return the decrease value". The Jordanian legislator is urged to remove the contradiction between Article (197) and Article (515) by doing away with Article (515) and relying solely on Article (197).

Utilizing Digital Reading Material to Enhance Legal Document Composition for Arabic Law Students

Purpose: This study aims to investigate the effectiveness of utilizing interactive e-books in improving the legal document composition skills of Arabic-speaking law students. Proficiency in legal document composition is a vital skill for aspiring legal professionals, yet it often presents a formidable challenge for students.
 
 Methodology/design/approach: Employing a quasi-experimental approach, this research assesses the impact of interactive e-books as a tool for enhancing writing skills, with a specific focus on Arabic-speaking students from the Faculty of Law at Mansoura University, Egypt during the academic year 2021-2022. The participants were divided into two groups: a control group consisting of 20 students and an experimental group comprising 20 students.
 
 Results and Discussion: The study's findings indicate that the group exposed to the experimental treatment, which involved the use of interactive e-books, outperformed the control group in enhancing their legal document composition skills. The interactive features embedded within the e-books, including immediate feedback and progress monitoring, proved highly effective in bolstering the participants' legal document composition abilities. Statistical analysis revealed a noteworthy difference between the two groups, with the experimental group demonstrating superior performance at a significance level of 0.05.
 
 Implications: These results have significant implications for both law students aiming to improve their legal document composition skills and curriculum designers seeking to enhance the educational experience in legal document composition.

An Evaluation of The Theory of Abuse of Rights: Between Sharia and Civil Law a Comparative and Analytical Study

Purpose: This research aims to show how Egyptian and Qatari legislators codify the “abuse of rights” theory and compare it with Islamic law. This is done to correct the defects and deficiencies in the Egyptian and Qatari legal texts. Although the Arab laws are considered among the first laws that adopted this theory, they did not establish private regulation for this theory in their legal rules. Instead, they copied French civil law, which created a conflict between Islamic jurisprudential rules and the legal texts. Methodology: This Article has been written using two methodologies to find answers to the fundamental questions raised by this Article. The first methodology analyzes the legal texts that regulate the theory of Abuse of Rights in Egyptian and Qatari laws. In contrast, the second one is based on comparing the legal texts with Islamic jurisprudential rules. Findings: In the end, we concluded that the theory of “abuse of rights” was stipulated in the Egyptian and Qatari Civil Codes, and judicial rulings established the application of this theory. However, Article (5) of the Egyptian Civil Code and Article (63) of the Qatari Civil Code do not involve this theory. On the other hand, the general texts in Mecelle have organized this theory better and more accurately. Originality: The originality of this Article lies in the fact that it analyzed the position of the Egyptian and Qatari legal texts and commented on the judicial provisions issued by the Egyptian and Qatari courts of Cassation and the Arab courts, and the opinions of civil law jurists related to “abuse of the right.” Moreover, it criticized these texts and highlighted aspects of their deficiencies in comparison with the jurisprudential rules extracted from Islamic law.

PREVENTIVE MEASURES FOR THE TWO MARRIED FROM DISEASES AND THEIR IMPACT ON THE MARRIAGE CONTRACT

The scope of this research is determined in the issues of preventive measures against diseases that the spouses must follow before concluding marriage. We look at the medical examination and its impact on the marriage contract, as well as the impact of diseases that affect the married in Iraqi law, UAE law, Syrian law, Algerian law and Qatari law in the solutions contained in these laws to these issues.
 We have taken the method of comparison as a methodology in our research by clarifying the meaning of medical examination in language, terminology and law and clarified the definition of mental illness and infectious diseases and then clarified the legal nature of the medical examination before marriage as well as the statement of issues involved in the concept of mental and infectious diseases and their content in Iraq, Algeria, the Emirates, Syria and the country.
 We have dealt with the subject of the research by dividing it into two chapters with the introduction and conclusion as follows: The first chapter- we dealt with everything related to medical examination from a legal point of view, while we dealt with in the second chapter- the statement of mental illness and infectious diseases and a statement of the position of Arab laws and legislations thereof.

Tacit Choice of Law Applicable to International Commercial Contracts: The Hague Principles and Arab Laws Compared

Abstract This article deals with the law tacitly chosen by the parties to govern their international commercial contracts. It shows the method by which The 2015 Hague Principles on Choice of Law in International Commercial Contracts and Arab laws refer to tacit choice, whether directly or indirectly. In addition, it tackles the level of strictness in tests for tacit choice and its criteria under both The Hague Principles and Arab laws. It concludes that, in order to achieve more predictability and legal certainty, the Legislatures in Arab states should reform the legal provisions on choice of law applicable to the contract with foreign element(s) according to the best practice followed by The Hague Principles in this regard.

КОДЕКС АМАЛЬФИ (TABULA AMALFITANA): ПУБЛИЧНО-ПРАВОВЫЕ ПОЛОЖЕНИЯ ЧАСТНО-ПРАВОВОГО ПРОИСХОЖДЕНИЯ

Introduction: many modern legal institutions were originated and developed significantly in the law of the Italian city-states in the medieval period, which makes it important to study individual sources of medieval Italian law. Purpose: to introduce into scientific discourse the historical and legal doctrine of the Amalfi Code, which is a documentary monument of the 11th century. Objectives: to translate the available text of this document from the lingua franca; to describe the historical background of its creation; to establish the relationship between custom and statutory law in the legal practices of medieval Italy (through the example of the city of Amalfi); to perform institutional analysis of the text; to determine the relationship of private law and public law provisions; to assess the influence of the Amalfi Code’s legacy on the modern Russian legal framework. Methods: the universal dialectical-materialistic method of scientific cognition; deterministic, logical, and historical methods (the last one as formulated by the ancient historian Thucydides, involving the study of the prerequisites, economic and socio-geographical background, driving forces, subsequent influence of historical events). Results: the paper introduces the Amalfi Code into scientific legal discourse; the content of its text is explained in the context of historical events preceding, accompanying, and following the creation of this legal act. Its corresponding connections with Roman law, Arabic law, legal customs, and the medieval practice of law enforcement are studied. The legal institutions that were formalized in the document are analyzed through the prism of a symbiosis of the provisions of private and public law. From the perspective of ideas about the spiral process of social evolution, this phenomenon is currently manifested in the design of the national anti-corruption policy model in Russia: one of the most effective countermeasures aimed against such a criminal law phenomenon as corruption is appropriation of civil servants’ assets burdened with a defect in declaring that is performed under civil law (see subitem 8 of Item 2 of Article 235 of the Civil Code of the Russian Federation). The paper provides an analysis of the views of medieval jurists on the institution of financial insolvency/bankruptcy as a type of highly qualified fraud; parallels with this phenomenon in the modern Russian legal space are drawn. Conclusion: the study of the Amalfi Code made it possible to identify trends and patterns in the evolution of the legal system of the medieval thalassocratic city-states and to extrapolate them to modern legal realities.

Transferring the Moral Rights of Translation to the Heirs between International Conventions and Arab Laws "A Comparative Study"

This study clarifies the issue of transferring the moral rights of translation to the heirs in the international conventions for the protection of literary and artistic property and Arab laws countries for the protection of copyright and neighboring rights in a comparative, balanced way, and this came through the inventory and statement of the moral translation rights mentioned in international conventions and the laws of Arab countries, And to determine the mechanism of their transfer to the heirs, and to put forward recommendations that contribute to repairing the gap in what international conventions and Arab laws have limited in regulating the issue of the transfer of this type of rights to the heirs after the death of the translator.

Adjustments and Additions in Construction Contracts’ Agreements An Originating Jurisprudential Study

This paper discussed adjustments and additions to construction contracts’ agreements under the Islamic jurisprudence, and it aimed at discovering their reality, importance, causes, conditions, types, modes, impacts, and the related rulings. The researcher followed the inductive analytical deductive method, and the most significant findings reached include that adjustments are of great significance in modern contract agreements, and the ruling of compensation in adjustments vary according to the mode involved. It was recommended that jurisprudential research and study is carried out on the adjustments in model agreements contracts and the Arab laws, and the practical judicial applications, and paying more attention to the conditions that are peculiar to contract agreements, and the evolving issues therein.

Legal protection for women from domestic violence, a comparative study

The study aims to define the legal protection that women enjoy from domestic violence and international and Arab laws, including Iraqi laws in their various branches that dealt with the issue of violence against women. Results The shortcomings of those laws, and this is due to the fact that these laws did not provide the necessary protection for women, as well as the passage of a long period of time on them, especially in Iraq. International and legal protection in the Arab countries and Iraq? The study recommended the need to make the necessary amendments to the laws commensurate with the existing development in order to protect women from violence in all its forms, especially domestic violence.

Division Of Joint Property Between Spouses In Islamic Jurisprudence And The Laws Of Some Arab Countries

In some Arab and Islamic countries, a financial system is held and applied between the couple. This system, known as the joint financial system between a couple, is applied in some Arab and Islamic countries. The couple during marriage life often acquire a lot of money. As a result of the husband's work only outside the house and wife’s is a homemaker, or as a result of the wife’s work only outside the house. and it happens that the spouses agree and share, the money resulting from their work and this matter may be based on an agreement between them to share the common funds and there may not be an agreement between them, and with the absence of the concept of financial participation between the spouses, the problem arises in the case of financial participation between them Without specifying the share of each party, and the problem also arises in the case of joint participation between spouses and without agreement, The main objective of this paper is to define the concept of the joint property system and to clarify the Fiqh and legal rulings concerning the joint finance whether or not there is an Existing Agreement, for this the researcher relied on the analytical approach with reference to the sources and scientific references, and the paper concluded with results, including: that participation is a set of rules agreed upon between spouses, which regulate the ownership of joint wealth between couple and the share of both spouses from it, and its ruling In jurisprudence, some jurists have permitted the spouses to share in what they earn from money and others forbid it. As for the position of the laws, they differed among themselves in terms of determining the type of joint money and the obligation of the spouses to participate or not, and in the case of their agreement without specifying their share, the judge is free to estimate, with the help of the expert’s opinion to determine The share of each of them, and in the event of disagreement, some Arab laws stipulate referring to the general rules of evidence.

The Arabic Root and the Peculiarities of Its Language Categorization (Structure and Inflection)

This article discusses the peculiarities of the Arabic root, its phonemic structure, and morphological categorization. The pure appearance of the Arabic root in language categorization allows you to separate the onomatopoeic feature of inflectional structure and phonetic rules of the Arabic language by which the root is categorized. This phenomenon of meaningful consonant phonemes in the Arabic roots makes the theory of onomatopoeia practicable not just only in Arabic but also in other Semitic languages. Moreover, the first consonant of an Arabic root usually contains the word's primary, essential meaning, and the second and third lookup. Also, in this work, it is noted that the grammar of the Arabic language has many features aimed at preserving the “purity” of the language and ensuring its continuity. It means that Arabic grammar is working as a trusted keeper of Arabic; therefore, the rules of this phenomenon are well prepared by old Arab grammarians. The Arabic root can show very useful organized peculiarities making Arabic so easy to understand and makes the Arabic words formed systematically. The article reveals “the Arabic law of language self-defense” and its basic rules, such as the principle of progressive language categorization.

Taboo Words as a Component of Invective Vocabulary and Their Determining in Arabic against the Background of Russian and English Languages

The paper is devoted to understanding of the taboo phenomenon in language as a component of invective vocabulary on the example of Arabic, English and Russian languages, and also to study of the borders of this phenomenon and methods of its determination. In his study of conceptual features of forbidden words the author of the article refers to the works of K. Allen and K. Burridge, as well as M. Ljung. In addition to the theoretical works of linguists, the author analyzes the existing practice of implementing linguistic prohibitions in Russian, English, which affects such areas as legislation and media. Especially valuable material that was analyzed, was studies of English-speaking media regulators and major broadcasting companies. The main purpose of these surveys was to identify the list of words that audience considered unacceptable on the air, i.e. taboo. As for Arab law, there is no separation of vocabulary on permissible and unacceptable, as well as there is no obvious border and in Arabic language standards or usage. However, this does not mean the lack of prohibited words and the author clearly demonstrates the presence of taboos on examples from Arab media. In addition, the article discusses the works of Arab linguists M. A. Khatyab and N. Ya. Kanbar, dedicated to taboo vocabulary. Nevertheless, the problem of reliable determination and identification of language taboos has not been solved yet, and the author of the paper proposes a relevant criterion to determine the taboo words on the basis of the approaches existing in modern linguistics.

Citing Testimony in Proceedings (its Terms, Validity, and Impact on Sentence of the Court)

Allegation of testimony has always been one of the reasons in the legal system for proving litigation. However, in countries where there is no need to make the witness to provide allegation of testimony on the one hand and considering the fact that the original principle is the innocence of the denier, testimony has largely lost its performance as a proof. Under the circumstances considered, allegation of testimony is accepted by the Muslims and its persuation as a great sin. Contrary to Islamic jurisprudence, the Iranian law does not accept the allegation of testimony; however, Western and Arab laws in accordance with Islamic jurisprudence consider testimony refusal as a crime and consider punishments for it.

Impact of Provocation Doctrine in the Crimes of Honor between Retention and Annulment: A Comparative Study of Arab Criminal Legislation

In this research, as a comparative study, we dealt with the excuse of provocation related to the issue of femicide against the background of so-called honor crimes, and the extent to which the perpetrator benefited from the valid or mitigating excuse. After identifying the meaning of “honor crimes,” we monitored the conditions for applying this excuse, the scope of its personal and objective application, and the punishment in Arab positive laws. We have also treated the recent legislative trends represented in the abolition of this excuse in some Arab laws and stated that it is an important step toward fairness for women, but it is not sufficient and requires other steps, so there is no limit to the adoption of a clear legislative plan with goals aimed at reaching radical remedies and decisive solutions that do not accept cutting or acting with ill-considered reactions, and in line with the provisions of Islamic law and relevant international agreements.

Dépeçage of contract in choice of law: Hague Principles and Arab laws compared

This paper discusses the extent to which the parties may use their freedom to choose the law governing their contract under the Hague Principles on Choice of Law in International Commercial Contracts and Arab laws, namely whether they can make a partial or multiple choice of laws. While this question is straightforwardly answered in the affirmative by the Hague Principles, it is debatable under (most) Arab laws. After discussion of the definition of dépeçage of contract, this paper presents the provisions of dépeçage of contract under comparative and international law, including the Hague Principles, and then under Arab laws. It concludes that Arab conflict of laws rules concerning contract should be reformed according to the best practices embodied in this regard by the Hague Principles.

Legal Features of the Provisions of Unjust Enrichment in Jordanian Civil Law and Comparative Law

Abstract Unjust enrichment is considered one source of obligations, which stands in contrast to harmful acts as another source of obligation in the Jordanian Civil Code (JCC). The Unjust Enrichment Rule has developed historically from Roman law, through Islamic jurisprudence, then French law and jurisprudence to modern laws, such as that in Egypt influenced by French law. All these laws have recognised the Unjust Enrichment Rule as an independent source of obligation. Although the JCC was influenced by Islamic jurisprudence, Arab laws, such as the Egyptian Civil Code, and foreign-influenced Arab laws, its features distinguish it from other laws, either in terms of naming the source or the details related to its legal provisions. JCC’s special features need to be highlighted, defined and evaluated for comparison with other laws, i.e., proving beneficial when enacting a new JCC or defining it as unique rather than a copy of other precedent Arab laws.

Место сунны в исламе: кораноцентризм vs хадисоцентризм

The paper aims to reveal the meaning of sunnah in Islam. Relevance of the problem is conditioned by the fact that sunnah is a subject of growing criticism on the part of the Quranists. The article considers history of Quranism; special attention is paid to Rashad Khalifa’s views. It is shown that the existing criticism of certain hadiths, regarded as falsifications or outdated norms of the medieval Arabic law (adat), is well grounded. The authors claim that Quranism, even though it contains some reformative ideas, threatens foundations of classical Islam. The following conclusions are justified: Quranism holds the Quran to be the only source of the Islamic law and faith. This doctrine is based entirely on R. Khalifa’s discovery of the Quran mathematical structure. However, the authors argue that this discovery does not diminish value of the non-Quranic norms contained in hadiths. Scientific originality of the research is conditioned by the fact that the authors provide a critical analysis of Rashad Khalifa’s doctrine for the first time in the Russian Islamic studies. It is proved that some hadiths take their origin from the medieval Arabic law.

إثبات تصرفات المریض مرض الموت فی الفقه الإسلامی (دراسة مقارنة)

شرعت أدلة الإثبات لحماية الحقوق بصفة عامة، لأن الحق يتجرد من قوته إذا لم يقم الدليل على ثبوته، وإثبات مرض الموت من أکثر الموضوعات القانونية تطبيقا وأکثرها حيوية، فالوارث أو الدائن هو الذي يتضرر غالبا من تصرفات المريض مرض الموت، لذلک فان المکلف بإثبات المرض هو الوارث أو صاحب المصلحة الذي يدعي حصول التصرف في مرض الموت ويطلب عدم نفاذه لأنه مدع. فمرض الموت واقعة مادية يجوز إثباتها بجميع طرق الاثبات، ومنها البينة والقرائن والشهادات الطبية الدالة على حالة المريض في أواخر حياته، وکذلک بشهادات الشهود حول وضعية المريض في أيامه الاخيرة التي أعقبها الموت، ويقع عبء الاثبات طبقا للقواعد العامة في الإثبات على المدعي وعلى الورثة أو الدائنين أو من له مصلحة في الطعن فلهؤلاء أن يطعنوا بالتصرف بصدوره في مرض الموت 0فوجب تسليط الضوء على إثبات مرض الموت في الفقه الإسلامي، وفي ظل القوانين العربية کالقانون الأردني، والقانون المصري، وغيرها من التشريعات العربية الأخرى. Evidence of evidence has been legislated to protect rights in general, because the right is stripped of its power if evidence is not established to prove it and proving death disease is one of the most applicable and most vital legal issues. The heir or creditor is the one who is often harmed by the behavior of the patient, the disease of death, so the person charged with proving the disease is the heir or the stakeholder who claims that the disposal of the death sickness took place and requests that it not be enforced because he is a claimant. Death illness is a material event that may be proven by all means of proof, including evidence, presumptions, and medical certificates indicating the patient’s condition at the end of his life, as well as the testimonies of witnesses about the patient’s condition in his last days followed by death. Or whoever has an interest in the appeal, then these have to challenge the behavior of his chest in the disease of death, so it is necessary to highlight the proof of the disease of death in Islamic jurisprudence, and under Arab laws such as the Jordanian law, the Egyptian law, and other Arab legislation.

The Arab Law Quarterly at 35: Paths Forward

The Arab Law Quarterly at 35: Paths Forward

Implications of Compulsory Car Accident Insurance Comparative Study

Compulsory civil liability insurance on car accidents is one of the most important topics, which aims to achieve traffic safety and reduce car accidents. Today, car accidents constitute a great danger to human life as they cause different types of physical and moral damages. This study, however, attempts to highlight the effectiveness of compulsory insurance in providing legal protection for damages resulting from car accidents. Such protection can be achieved through the process of creating legal mechanism to enable injured people to refer to insurance companies. It is quite apparent that nobody can deny the importance of insurance and its influence on people’s lives. Insurance companies nowadays have become an essential cornerstone in the economy of any country. An insurance contract has legal consequences on the parties, which leads to corresponding obligations. These parties are committed to comply with these obligations otherwise, any violation will be treated as per the prescribed legal sanctions. In conclusion, any research or study on the compulsory insurance system whether in the Emirati law or in Islamic Sharia is highly recommended as part of the attempts to solve and rectify any legal and legitimate problems in this system. An essential objective of the Islamic Sharia is to achieve all fair interests of people. Arab and international legislation consider car insurance compulsory with some exceptions in order to compensate all those affected by a car accident. Arab and other foreign laws as well as the legitimate ones have differed in their choices of car insurance basis. Many legislations in the field of compulsory insurance have limited the right of compensation to body damage. Some other legislations have covered damages of property. Most legislations have not specified the amount of compensation that the insurer is obliged to pay in case of injury, death, or property damages. companies.