دور القاضي في تحديد مبادئ الشريعة الإسلامية الأكثر ملائمة لنصوص القانون المدني “دراسة مقارنة”

Rp-The role of the judge in determining the principles of Islamic law most appropriate to the texts of civil law (a comparative study).pdf

Abstract
The legislator gives the civil judge, in order to decide on the case before him, an important role in determining the legal basis for resolving the dispute in order to implement its effect through which the dispute presented to him is resolved, but the civil judge may face a state of emptiness in the law or the silence of the law, which is intended to be a deficiency in the legislation, which is The absence of a ruling dealing with the dispute presented to the judge. The deficiency in the law is the failure to include in the legal text what is needed in terms of detailed or partial provisions. In both cases, the judge is obligated by law to refer to other sources in the law. Continuous developments in economic or social life.
Among these sources are (the principles of Islamic law that are most appropriate to the texts of civil law) because the civil law falls under the range of laws that adhere to the provisions of Islamic law in its rules and texts, but this text is related to the reference to the principles of Islamic law that are more appropriate to civil law than others. For criticism, whether in terms of legal drafting or an objective defect, the words were vague and required to clarify the ambiguous text and correct its shortcomings and strengthen its weaknesses by interpreting them and clarifying what is meant by them. Focus has been placed on the phrase (principles of Islamic law that are most appropriate to the texts of civil law) that appear in Article (1/2) Of the Iraqi civil law in force, the fact that the law did not explain what is meant by it and clarify its provisions and control over them, which resulted in a disagreement in their understanding,
The study also focused on clarifying the compatibility between the principles of Islamic law and civil law. In addition, some terms that are close to the aforementioned words were studied and the confusion between them was lifted. The vacancy of the text is theoretical and practical aspects that deserve reflection and consideration.
From the foregoing, we imagine the research problem as the ambiguity surrounding the process of determining the principles of Islamic law that are most appropriate to the texts of civil law and its lack of interpretation as a legal and judicial phenomenon.