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اختلاف الفقهاء وأثره على الأحكام القضائية (دراسة تأصيلية تحليلية مقارنة)
Keywords: judiciary, jurists, law, ambiguous, secret, opinions.
PROCEEDINGS OF 8th INTERNATIONAL LEGAL ISSUES CONFERENCE
Faculty of Law / Tishk International University
Date:1-2. February 2024
Venue: Kurdistan Region- Erbil
ISBN: 979-8-9890269-1-3
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Asst. Prof. Dr. Ahmed Mohammed Siddiq
Iraq / University of Kirkuk / College of Law and Political Science
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Abstract
The difference between jurists, whether they are jurists or late or advanced Islamic jurists, is the dominant feature in the issues that are raised, and each jurist or group of them has his own opinion and evidence upon which he relies in stating his opinions and rulings on the subject raised.
Of course, the vital area of disagreement between jurists is the matters that are subject to disagreement among them, such that there is no definitive legal or Sharia text in stating the legal or Sharia ruling on the subject, and thus it may lead to the judge being faced with a jurisprudential dispute and a multiplicity of opinions when a lawsuit is filed on the subject. What happened is a dispute, so the research addresses the study of the effects of the disagreement between jurists on judicial rulings.What is the judge’s position on controversial issues regarding the subject before him?By referring to Iraqi legislation and comparative Arab legislation, such as civil laws or personal status laws, we find that these laws consider jurisprudence or Islamic law as one of the basic or explanatory sources for these laws.As in the Iraqi Civil Law No. 40 of 1951 in Article (1/Second and Third), as well as the Iraqi Personal Status Law No. 188 of 1959 in Article (1/Second and Third),Among all these legal texts, we find that the Iraqi legislator has counted jurisprudence (legal and Sharia) from the original sources by stating that the principles of Islamic law are a source of law and the judiciary as well, or the interpretation of the law and the judiciary, and the judge can resort to it in issuing judicial rulings, but the main point here is that most of the jurists do not They agree on one opinion among themselves on a specific subject, but there is a difference in the statement of the ruling according to the evidence and the conviction on which they rely in the statement of their jurisprudential opinion, so how can the judge outweigh or put forward an opinion over another opinion in the case before him?Therefore, there must be foundations and rules based on which one opinion is given weight over another.
المصار
اولا :- معاجم اللغة:-
ثانيا:- كتب الفقه الاسلامي:-
دمد سيد كيلاني، دار المعرفة، بيروت، بدون سنة طبع،
ثالثا:- الكتب القانونية
رابعا:- بحوث المنشورة في المجلات العلمية
خامسا:- القوانين