The role of judical jurisprudence in deriving judgments (A coparative study)

Abstract

When the judge lacks the legislative text applicable to the incident in question, and backup sources such as custom and the principles of Islamic Sharia did not help him in deriving the judicial ruling, then he would be facing a state of legal void, and he could not refrain from ruling or count as denying justice according to Article 30 of the Iraqi Code of Procedures Article 122 of the Egyptian Penal Code and Article 4 of the French Civil Code. In this case, the judge will take a discretionary role in order to reach the judicial ruling of the pending case, he will lay down the legal basis for the case before him and the ruling will be deduced from it to adjudicate it, and in order not to The fact that this jurisprudence was based personally has been restricted by the legislator, that this is in light of the rules of justice, meaning that if the judge faces a legal vacuum, then he returns to the essence of the law and plays a role similar to that of the legislator when setting the legislative rule, and in addition to this the judge is inspired by this diligent work The principles and ideals of natural law, the judge’s will, and indeed the human will, are unable independently to reach the fullness of the law without being guided by a direction that he takes towards justice and indicating it.But after the judge deduced the verdict in the pending case with this ijtihad, if a case similar to that was presented to him or other judges, which was the subject of the first ijtihad, some of them applied the same first ruling and some of them succeeded him, then the Court of Cassation or Cassation consolidated the rulings issued by the lower courts And, as a result of this, there is a judicial trend. Is this trend considered a legal rule? The disagreement has occurred in that, there is a trend that states that the judiciary cannot establish the legal rule in the event of a legal void but rather merely sets judicial solutions that do not live up to the characteristics of the legal rules, and they have their arguments as to what they went to, and they opposed them in another direction so they went that the judiciary is different from The work of the individual judge creates the legal rules that are general, abstract, and obligatory, and they have their arguments that support what they went to, and we see that despite the great legal value of the judicial principles, they do not reach the legal legal norms.The research responds to the problem of whether the jurisprudence creates the legal basis for extraction in the case of the legislative and legal void.We divided it into two requirements. In the first we dealt with deduction in the light of the rules of justice. In the second we exposed the role of the judiciary in establishing the legal rule. We made the first demand in two branches. In the first we dealt with the idea of justice and in the second the idea of natural law. We made the second demand in two branches. The denial of establishing the judiciary for the legal base, and we discussed in the second section the trend in favor of establishing the judiciary for the legal base.