Dirasat: Shari'a and Law Sciences

Cyber-Attacks in Accordance with International Humanitarian Law

Mohammad Hasan Daraji, Omar Saleh AL-Okour — Fri, 15 Mar 2024 00:00:00 +0100

Objectives: This study aims to demonstrate the applicability of the rules of international humanitarian law to cyber-attacks, as international humanitarian law aims to regulate the exceptional right to use force to resolve disputes, as such use of force is internationally prohibited under the UN Charter.

Methods: Two approaches were employed in this research. The first is a descriptive-analytical approach, which starts from the description of the phenomenon under question, the legal approach that is taught in political and international system institutions, and the relationship between them. The second is a historical approach, which traces the historical events surrounding the emergence of the term ‘cyber-attacks’.

Results: There are two different approaches regarding the issue of the subordination or non-subordination of cyber-attacks to the provisions of international law, the most likely approach is that cyber-attacks are subject to the provisions of international law. This approach is encouraged so as to avoid falling into the problem of evasion of international responsibility which could then lead to committing more massacres against civilians as a result of the use of cyber-attacks as a weapon.

Conclusions: The study recommends the necessity of adapting the rules of international humanitarian law to align with the unique nature of cyber attacks and applying them as weapons and methods of warfare in armed conflicts. Efforts should continue to amend these legal rules to achieve explicit international legal regulation for cyber attacks.

Adherence of Public Officials to the Disclosure of Conflict of Interest While Performing Their Job Responsibilities: A Comparative Study between French and Jordanian Law

Hadeel Tayseer Mahmoud Al-Zu’bi — Fri, 15 Mar 2024 00:00:00 +0100

Objectives: This study aims to analyze the legal framework regarding the duty of public officials to disclose conflicts of interest and draw lessons from the French experience. It identifies legislative gaps in Jordanian laws concerning the duties of public officials, the nature of conflicts of interest, and the mechanisms for disclosure during and after service.

Methods: This study utilized a descriptive, analytical, and comparative approach. It presented relevant legal texts defining the responsibilities of public officials, clarified the nature of conflicts of interest and their cases, analyzed and interpreted their content, and compared them with French law.

Results: The prevalence of conflicts of interest can be attributed to the lack of awareness among public officials due to the omission of a mechanism for mandatory disclosure and effective methods to confront these conflicts in Jordanian legislation. Furthermore, administrative control over public officials has not been adequately activated.

Conclusions: Legislative frameworks, both preventive and precautionary, are necessary to regulate the disclosure of conflicts of interest in public service. The study recommends adopting the French approach by establishing an independent administrative authority dedicated to public transparency. This authority would declare and publish employees' interests, prevent conflicts of interest, disclose, and mitigate their cases, and enhance transparency between citizens and the administration.

Commentary on Syrian Administrative Court Decision No. 351/2019

Tareeq Shawkt Saeed, Youssef Shabat, Khaled Al-Mohammed — Fri, 15 Mar 2024 00:00:00 +0100

Objectives: This study aims to comment on Syrian Administrative Court Decision No. 351/2019, identifying its strengths and weaknesses regarding the issues raised by the decision and assessing its compatibility with jurisprudential and judicial reasoning.

Methods: The study adopted an inductive approach after reviewing several relevant judicial decisions related to the decision under consideration.

Results: The study concludes that the inherent jurisdiction to determine the scope of sovereign acts rests with the judiciary. It emphasizes the need to consider these acts as exceptions to the general rule, which entails the judiciary's competence to review all administrative disputes. Additionally, the study finds that administrative discretionary power addresses specific elements in the decision and cannot exist without judicial restrictions or supervision. Furthermore, administrative acts delegated to specialized technical committees and their outcomes play a significant role in making the final decision.

Conclusions: The study highlights the necessity of keeping pace with judicial developments in sovereign acts and the freedom of discretion enjoyed by the administration. It recommends implementing clear error review to subject all discretionary actions to judicial scrutiny.

The Multi-Tiered Dispute Resolution Clause and its Applications in Jordan

Jalal Alqhaiwi , Ihab Rayyan, Tariq Alhasan — Fri, 15 Mar 2024 00:00:00 +0100

Objectives: The aim of this study is to clarify the concept of multi-tiered Dispute Resolution Clause and explain its application and enforceability. This type of clause is particularly useful in resolving engineering disputes, and thus it is incorporated in a wide number of construction contracts including the FIDIC Red Book contract which is used in the projects of the Jordanian Ministry of Public Works and Housing.

Methods: The study uses comparative analysis to examine the relevant legal texts used in the study in the light of Arab and international jurisprudence as well as judicial decisions.

Results: The study reveals that what is stipulated in the multi-tiered Dispute Resolution Clause will be enforced on the parties according to the principle of party autonomy. Following the step-by-step procedure that the clause contains leads to the settlement of disputes outside of court. The study also shows that Jordanian legislators must add an item to Article (109) of the Code of Civil Procedure, responding to the will of the parties to settle disputes through an out-of-court proceeding rather than through litigation, even without an arbitration clause.

Conclusions: The multi-tiered Dispute settlement clause is binding and the parties must follow its mandatory steps in the same order contained therein, even if it does not contain an arbitration clause. For this reason, applying the clause must be raised by the parties before negotiating the case.

The Right of States to Remain within International Law and Its Impact on the Conditions of Jihad Al-Talab (Defensive Jihad) According to Ancient and Contemporary Jurisprudential Schools: A Comparative Study

Abdallah I Zaid Alkilani, Hamad Almazrouai — Fri, 15 Mar 2024 00:00:00 +0100

Objectives: This research aims to explore jihad al-talab (defensive jihad), its ruling, manifestations, and contemporary application within the context of the state's right to exist.

Methods: The research employs three approaches: inductive, descriptive, and comparative. It analyzes religious texts on defensive jihad and international laws concerning the right to exist. The study clarifies meanings, explains purposes, and explores means to achieve defensive jihad's objectives, considering contemporary jurisprudence.

Results: Defensive jihad serves to promote the call to Allah and deter enemies. It is obligatory and involves well-equipped regular armies for homeland defense with deterrent power. Muslim states should also utilize soft power to uphold Islamic law's sovereignty and serve the call to Allah. In the contemporary era, it is achieved through positive international relations, agreements ensuring freedom of religious expression, and maintaining sufficient strength for deterrence.

Conclusions: The maqasid (objectives) approach confirms that defensive jihad does not infringe upon states' right to exist. Its ruling should be understood in light of protecting freedom of religion and respecting agreements. War is not the sole means to achieve state policies; soft tools like preaching, education, and cultural institutions should be activated according to Islamic law's objectives. International agreements regulating freedom of worship and conscience can be utilized.

Islamic Microfinance as a Mechanism for Financing Small and Medium Enterprises in Jordan: An Analytical Evaluation Study of Al-Namothajiah for Islamic Microfinance Company

Maysa’a Munir Milhem — Fri, 15 Mar 2024 00:00:00 +0100

Objectives: This study aimed to assess the contribution of Islamic microfinance institutions in Jordan to financing small and medium enterprises and identify key challenges faced by these institutions. Additionally, it sought to evaluate the experience of Al-Namothajiah for Islamic Microfinance in financing small and medium enterprises from 2017 to 2022.

Methods: The study employed a descriptive analytical approach to examine Islamic microfinance institutions and small and medium enterprises in Jordan. It utilized a case study method to investigate Al-Namothajiah for Islamic Microfinance.

Results: The study revealed that small, medium, and micro enterprises comprised around 99.5% of all operating enterprises in the Kingdom. Microfinance played a significant role in financing these projects, offering various products such as my business, my home, my startup, my farm, and my workshop. Al-Namothajiah for Islamic Microfinance provided substantial financing, reaching 1,783,373 dinars for business projects and 846,388 dinars for home projects in 2018. Challenges faced by Islamic microfinance institutions included limited financing options, high costs, inadequate education and training for staff, credit risks, limited market access, competition, and digital transformation.

Conclusions: To enhance the capacity of Islamic microfinance in Jordan for financing small and medium enterprises, it is crucial to train and develop human resources within these institutions, activate diverse Islamic financing methods, strengthen financial resources, and support the establishment of Islamic institutions that mitigate project financing risks using Islamic formulas. The study recommends expanding the presence of Islamic microfinance institutions in Jordan and diversifying and enhancing Sharia-compliant products to meet customer demands.

The Situation of Islamic Education in the North Caucasus from the Emergence of Islam in the Region to the End of the Nineteenth Century

Anzor Mubin Safarbi Shkhanukov, Ahmad Muhammad Husein Addaghashi — Fri, 15 Mar 2024 00:00:00 +0100

Objectives: The study aims to provide a brief overview of the history of Islamic education in the North Caucasus, starting from the early centuries of Islam's emergence into the region until the end of the Caucasus War. It highlights the principles of Islamic education and reveals the conditions of teachers, students, administration, and educational institutions.

Methods: The nature of the current study necessitated the use of a historical approach to gather information and verify its accuracy according to the rules followed in historical studies. Various scientific sources such as books, research papers, journals, and others were relied upon.

Results: The study concludes that an integrated Islamic educational system was established in the North Caucasus, based on the circumstances and nature of the period, consisting of offices and schools. It also demonstrates that the North Caucasus region participated in the commitment to Islamic principles in its educational system. The educational system was characterized by certain features dictated by the circumstances.

Conclusions: The study recommends that those involved in the Islamic education sector in the North Caucasus build upon the positive aspects of the Islamic educational experience in the mentioned period and address any shortcomings and weaknesses. It encourages the integration of traditional and contemporary aspects within the significant developments in the field of education.

Smart Contracts and Related Collection Terms

Sumaia Ali Mohammad Al-Omari — Fri, 15 Mar 2024 00:00:00 +0100

Objectives: The research aims to highlight the most important “financial receipts” provisions in smart contracts through block chain technology. To that end, the study investigated this topic through three claims: first; smart contracts, second; the relationship between smart contracts and block chain, and the third is the provisions of financial receipt within smart contracts.

Methods: the Research adopted the descriptive approach through describing smart contracts in terms of their nature and relation to block chain technology, and the inductive approach by tracing this technology from the specialized research, the analytical approach has also been used to analyze the contractual processes in which they take place and the way they are received to reach appropriate legal provisions

Results: The study found that any financial receipt made in smart contracts is a bylaw receipt that takes the provision of a bank entry, and that the price of a valuator's financial receipt through digital signatures adopted by the WTO World Trade Organization as a means of recording property. The study also found that, unlike contracts conducted through public networks, smart contracts conducted through private networks were those that met legitimate conditions.

Conclusions: The study recommends benefiting from experiences of countries that have adopted these contracts in their modern system, thus helping to avoid many of the problems they face.

Sharia Policy in the Crime of Extortion: A Jurisprudential Study

Huda Yousef Ali Ghidan — Fri, 15 Mar 2024 00:00:00 +0100

Objectives: This study emphasizes the importance of Sharia policy in addressing contemporary fiqh issues and explores the jurisprudential developments related to punitive measures for the crime of extortion. It examines the characteristics of extortion, its synonymous terms, and the evidence that prohibits it.

Methods: Using an inductive approach, the study examines Sharia texts from the Quran and Sunnah, highlighting the Sharia methodology for preserving the five necessities. Additionally, an analytical methodology is employed to study the Sharia texts, deriving general principles regarding extortion to maintain societal security.

Results: The study concludes that Islamic law is capable of addressing contemporary jurisprudential issues. Sharia policy empowers governing authorities to determine appropriate punishments for extortion in line with Sharia principles and justice. It applies specific jurisprudential principles, such as the ruler's discretion based on public interest, blocking means, the adaptability of rulings over time, and the principle of avoiding harm. Although the term "extortion" is not found in early juristic works, synonymous terms like threat, coercion, invasion of privacy, and spying exist. Extortion is characterized as a soft crime that transcends borders, is executed swiftly, and is sometimes challenging to prove.

Conclusions: extortion lacks a predetermined punishment, allowing rulers to decide penalties that serve societal interests. Preserving human life and prohibiting aggression are crucial objectives of Islamic law, making extortion impermissible. The study recommends stricter punitive measures for extortion due to its general threat to society and the need to establish appropriate penalties.

Interpretation of the Verse of Compulsion from Surat Al-Nahl: An Analytical Study

Ibtihaj Radi Abdul Rahman — Fri, 15 Mar 2024 00:00:00 +0100

Objectives: This research explores the ruling of uttering words of apostatsy and the relevant factors, such as willingness, coercion, dispensation, and obligation. It also investigates what actions are considered permissible when coercion is involved with examples of this in our contemporary reality.

Methods: The study uses inductive and analytical approaches to examine a verse from Surat al-Nahl, which is referred to here as “the verse of forced opostasy” that is pertinent to the topic of the current study. The deductive approach was also used to present the relevant statements of Fuqaha (jurists), highlighting the most suitable and appropriate in dealing with legally competent, obligated Muslims.

Results: According to the study, Muslims may face difficult situations that prompt them to say or do things that do not rise to the level of disbelief or to act out of character. In Palestine, Iraq, and elsewhere, people are tortured in prisons and detention centers or threatened with death at military checkpoints. Thus, if forced to comply with an adversary's demands, one must evaluate the situation and decide.

Conclusions: The "forced apostasy verse" is relevant to modern times since Muslims can be coerced into saying or doing things that contradict their faith, such as being threatened to be crucified or bending the knee to a cross. In such cases and to avoid death, Muslims may condone acts of disbelief, such as the desecration of the Quran.

Divorce under Coercion in the Maliki Jurisprudence Compared to the Jordanian and Kuwaiti Personal Status Law

Bassam Mohammad Omar — Fri, 15 Mar 2024 00:00:00 +0100

Objectives: This research aims to clarify the Malikis' rule on forced divorce, how they define the term "coercion," the evidence they used to come to their conclusion, the jurists (Fuqaha) who agreed with them, and those who disagreed with them. It also sought to identify aspects and ways not deemed coercion by Malikis by drawing parallels to the forced divorce provisions included in the personal status statutes of Jordan and Kuwait. The paper went on to detail actual cases heard by Sharia courts that involved coerced divorce.

Methods: The comparative, the inductive, and the analytical method were used. The comparative method involved analyzing the various jurists ' positions on divorce at the time of coercion. As part of the inductive method, a jurist's opinions on divorce under coercion were examined. To gather evidence relevant to the current topic, the analytical method involved analyzing the texts of relevant jurists.

Results: The Malikis believe that a forced divorce has no bearing, and that the wife is not then divorced. Divorce does not occur under Maliki law if one party has been forced to swear an oath under coercion or threatened with death or the death of one's children. Blasphemy and defamation, conversely, are not considered coercion and can lead to a divorce. The findings also showed that Personal Status Law of Jordan and Kuwait does not recognize divorce under coercion, appealing to most jurists' views.

Conclusions: The forced divorce according to the Malikis does not take place and has no effect.

The Degree of Evaluation of the Effect of Means of Social Media on Islamic Da'wah from the Perspective of Students of the School of Shari'ah in the University of Jordan, Jordan

Ibrahim Mohammad Khalid Borqan — Fri, 15 Mar 2024 00:00:00 +0100

Objectives: The study examined how social media affects Da'wah and identified the associated barriers from the perspective of Sharia students at the University of Jordan.

Methods: 286 male and female students from Sharia Faculty participated in this descriptive survey. The questionnaire's validity and reliability were duly verified before using it to collect data for the study. The study consisted of two parts. The first component examined University of Jordan Sharia students' views on social media's impact on Da'wah. The second component examined how survey participants saw Da'wah difficulties on social media. Statistical means and standard deviations were used to compare items based on the Likert scale.

Results: Both components of the questionnaire received "high" scores. Based on the questionnaire results, it is evident that the study community comprehends the significance of Da'wah on social media, along with the associated obstacles that arise when utilizing these platforms for Islamic Da'wah. The study found notable statistical variances based on gender in the first component, with females having a slight advantage. This was statistically significant at a level of 0.05. However, there were no significant differences at the level of 0.05 for gender and specialization variables in the second component.

Conclusions: The study suggests addressing the most pressing challenges in promoting beliefs on social media platforms, as the risk of unqualified Da’wah answers on social media and their cognitive and social effects. Monitor and enforce accurate and relevant religious discourse targeting women on social media.