Dirasat: Shari'a and Law Sciences

Judicial Jurisprudence Issued By Sharia Courts in the Executive Detention of the Guarantor in Financial Executive Cases

2025-04-13T12:46:58+03:00

Objectives: This study aims to collect and analyze judicial jurisprudence issued by Jordanian Sharia courts regarding the executive detention of guarantors in financial enforcement cases. It seeks to identify the legal and Sharia-based reasoning behind each ruling and highlight the judicial preferences that emerge in the absence of explicit legislative texts on the subject.

Method: The research adopts an inductive approach to analyze rulings issued by Sharia courts, focusing on both legal and Sharia-based evidence. It also employs analytical and documentary methods to systematically examine and record the relevant legal texts and precedents.

Results: The study concludes that discrepancies in judicial rulings stem from differences in legal and Sharia sources, variations in interpreting the relevant texts, and the differing methods applied in their implementation.

Conclusion: The study ends by proposing an amendment to Article (5) of the Executive Sharia Law, which defines the jurisdiction of the Head of the Sharia Enforcement Department, by adding Paragraph (C) stating: "C. The provisions of Paragraph (A) of this Article shall apply to the guarantor." It also recommends amending Article (5) of the Civil Executive Law, which defines the jurisdiction of the Head of the Civil Enforcement Department, by adding Paragraph (G) stating: "G. The provisions of Paragraph (A) of this Article shall apply to the guarantor."

The Difference between Spouses in the Expiry of the Waiting Period and Its Impact on the Jordanian Personal Status Law No. (15) of 2019

2025-05-18T13:21:37+03:00

Objectives: This study explores spousal disputes regarding the end of ʿiddah (waiting period after divorce or death), outlining the related legal rulings and juristic opinions. It examines claims by women that their ʿiddah ended—whether by menstruation, childbirth, or months—and whether the husband's agreement or denial is legally valid. It also reviews the position of Jordanian Personal Status Law and related appellate decisions.

Methods: The study adopts an inductive, analytical, and comparative approach. It traces jurisprudential issues concerning ʿiddah from the books of the Islamic legal schools, examines the relevant articles of the Jordanian Personal Status Law concerning ʿiddah and rajʿah (revocable divorce), presents case scenarios, analyzes and discusses the evidences, and weighs the different opinions according to the strength of the supporting proofs. Finally, it compares juristic views with the provisions of the Jordanian Personal Status Law.

Results: The Jordanian Personal Status Law adopts the Hanafi position regarding disputes between spouses over the end of the ʿiddah. It states that a woman may observe ʿiddah due to menstruation, pregnancy, or months. If she is observing ʿiddah by menstruation or pregnancy and claims it has ended within a possible timeframe, her claim is accepted upon taking an oath. However, if she claims that her ʿiddah has ended by the passing of months, her claim is not accepted without evidence, and the husband’s oath is accepted.

Conclusion: There is a pressing need for researchers to study jurisprudential disagreements related to marriage and divorce and their influence on legal choices in Arab and Jordanian personal status laws.

The American Orientalist R.Marston Speight and His Views on the Sunnah

2025-05-26T07:54:52+03:00

Objectives: This study aims to introduce the American orientalist Marston Speight, his writings on the subject of Hadith (Prophetic traditions), the key views he applied in analyzing Hadith texts, and his most notable claims regarding Hadith.

Methods: The study adopts an inductive approach to trace the life of Marston Speight, a descriptive method to outline his articles and research related to Hadith, and a critical-analytical method to respond to his major opinions concerning the Prophetic tradition (Sunnah).

Results: The study concluded that Marston Speight was one of the American orientalists who produced numerous writings and articles on Hadith. He followed the methodology of the American school of Orientalism, which employed missionary work in Arab countries as a means to disseminate orientalist ideas. He was also among those who claimed that the wording of Hadiths was altered, either intentionally or unintentionally, by narrators during the oral transmission period following the death of the Prophet ﷺ. In this, he applied the form criticism method, originally developed by Christian scholars for analyzing Gospel texts, to the texts of Hadith.

Conclusion: The study refuted many of the claims adopted by Marston Speight regarding the impact of oral transmission on the accuracy of Hadith narration. It also concluded that the method of form criticism he applied to Hadith texts is inappropriate, and that narrators in the first Hijri century were unlikely to have been influenced by Greek rhetoric. The study affirmed that misunderstanding the methodology of Hadith criticism contributed to misinterpretations about narrator behavior and changes in Hadith wording .

Removing the Conflict between the Theory of Abuse and the Rule of Legal Permissibility Contradicts Liability: Arbitrary Transfer of Workers - A Model: A Comparative Study

2025-06-16T14:12:35+03:00

Objectives: This study aims to identify the points of conflict between the doctrine of abuse of rights and the principle that "legal permissibility negates liability," and how to reconcile the two. It applies this to the issue of the arbitrary transfer of an employee, by clarifying the criteria for abuse in Islamic jurisprudence and Jordanian civil law, pinpointing the area of conflict, and proposing ways to eliminate it by harmonizing the two concepts.

Methods: The study uses comparative and analytical deductive methods to explore the conflict between the doctrine of abuse of rights and the principle that "legal permissibility negates liability." It compares these concepts with provisions of the Jordanian Civil Code and analyzes juristic texts to derive legal and Sharia-based rulings on the arbitrary transfer of employees.

Results: The results show that resolving the conflict between the doctrine of abuse of rights and the mentioned principle lies in restricting the principle by prohibiting serious harm to others, whether the act was carried out with the intent to harm or simply resulted in harm. Abuse of rights, in essence, represents a deviation from legal permissibility. Thus, legal permissibility becomes subject to the condition of non-abuse.

Conclusion: The Jordanian Labor Law should include a clear provision prohibiting abuse in employee transfers, granting judges the authority to award fair compensation in cases of arbitrary transfer, even if the contract grants the employer the right to transfer the employee.

The Chronology of the Revelation of the Verses of Surah Al-Baqarah

2025-07-07T08:45:59+03:00

Objectives: This study aims to establish an accurate or approximate timeline for the revelation of the verses of Surah Al-Baqarah, as such knowledge assists both the contemplator and the researcher in understanding the chronology of Qur’anic revelation. It also seeks to analyze the historical context of the surah’s revelation by examining the events that accompanied its descent in Madinah.

Methods: The research induces and traces the verses of Surah Al-Baqarah and their revelation over the entire Madinan era; examines the narrations related to the causes of revelation (asbāb al-nuzūl); and compares differences among narrations and interpretations provided by classical exegetes regarding the timing of the verses’ revelation.

Results: The study provides approximate dates for the revelation of several verses, facilitating future studies of similar nature. It demonstrates the feasibility of determining chronological groupings of the verses and distributes their revelation across the years of the Madinan period.

Conclusion: The study emphasizes the importance of continuing efforts to trace the chronological order of Qur'anic verses, as this contributes significantly to thematic exegesis and enhances the field of Qur’anic revelation studies.

Judicial Verification of the Wife's Claim in a Case of Separation Due to Discord and Conflict – An Analytical Study in Light of Article 126 of the Jordanian Personal Status Law No. (15) of 2019

2025-08-10T12:42:45+03:00

Objectives: This study aims to analyze the judicial mechanisms for verifying marital discord and to clarify the distinction between judicial verification and legal proof. It further explains the judiciary’s role in confirming the existence of discord and the safeguards that protect the wife’s rights during the proceedings.

Methods: The study adopts an analytical method through the examination of jurisprudential and legal texts in Jordan’s Personal Status Law related to discord and conflict. It also employs a descriptive method to outline the existing legislative framework in Jordan, along with a comparative method that analyzes definitions and concepts in Islamic jurisprudence compared with Jordanian legal texts.

Results: The study concludes that judicial verification relies on personal evidence, testimony (including hearsay), and circumstantial indicators. It grants the judge discretion to assess and be convinced by the evidence, giving the judge an active role in the investigation. The judge may also order additional procedures to uncover the truth.

Conclusion: Article (126) of the Jordanian Personal Status Law (2019) addresses lawsuits of discord and conflict. If the claim is filed by the wife, the judge must verify the existence of harm that justifies separation—whether through formal proof or any means that lead to the judge’s conviction. By contrast, if the husband files the claim, he is required to prove the existence of harm.

Conflict of Outweighing Factors: Theoretical Foundations and Sub-Issues

2025-07-24T08:08:51+03:00

Objectives: This study aims to present both the general and specific positions regarding the conflict of outweighing factors (marājiḥ) and to examine how scholars of uṣūl al-fiqh addressed the issue.

Methods: An inductive approach was adopted by collecting dispersed discussions of uṣūlī scholars on the conflict of outweighing factors. In addition, a descriptive, inferential–analytical approach was employed to establish a theoretical foundation for the topic and to derive related sub-issues mentioned in the literature.

Results: The process of weighing between evidences is grounded in the conjecture of jurists, and the same applies to the conflict of outweighing factors. It is difficult to assert the precedence of one factor over another in abstraction; in practice, each case requires its own evaluation. Generally, uṣūlī scholars gave little attention to this issue, as it is complex and open-ended. Only brief remarks appear in the works of al-Bāqillānī, al-Juwaynī, al-Rāzī, and al-Ṣafī al-Hindī, while al-Āmidī dedicated a treatise to it. Ḥanafī scholars also recognized its importance and allocated a chapter to it.

Conclusions: While uṣūlī scholars extensively addressed the conflict of evidences and the tools used for weighing between them, the outweighing factors themselves also conflict. Therefore, it is not possible to resolve the conflict of evidences without addressing the conflict of outweighing factors. This study provides both a theoretical foundation and a practical classification of the sub-issues raised by scholars, even though their discussions of the matter remain limited.

Legal Analysis of Using Smart Weapons in Armed Conflicts Based on the Principles of International Humanitarian Law

2025-06-12T08:40:04+03:00

Objectives: This study aims to define the concept and classifications of smart weapons as a preliminary step toward examining their legal status under the principles of International Humanitarian Law (IHL). The topic was selected due to its contemporary relevance and the evolving nature of these weapons, which continuously reshape how humans interact with armed conflicts and make decisions regarding the use of force in military operations.

Methods: The research adopts both analytical and descriptive approaches. It analyzes the core principles of IHL, assesses the nature of smart weapons in light of these principles, and examines the extent of their compliance with IHL rules. This dual approach aims to prevent violations of the law under the pretext of the weapons’ inherent nature and operating mechanisms, and to ensure that the supremacy of humanitarian principles is not undermined. The descriptive method is also used to illustrate the current and near-future state of warfare, its innovations, and the variation in outcomes based on the weapons employed.

Results: The study proposes a new criterion for classifying smart weapons and concludes that there can be no assurance that these weapons can fulfill the objectives of IHL principles. It strongly recommends the prohibition of smart weapons capable of independently conducting military operations.

Conclusion: Smart weapons encompass advanced weapons and their digital systems. The study calls for a genuine international initiative to adopt a new treaty specifically dedicated to regulating smart weapons and their operational systems, in order to address current legal gaps. It also advocates for the development of a more precise and robust mechanism of legal accountability for violations resulting from the use of smart weapons and their systems.

The Rulings on the Successive Hands of the Usurper

2025-06-16T14:16:11+03:00

Objectives: This study aims to clarify the concept of successive hands as used in Islamic jurisprudence, explain the rulings related to the successive hands stemming from the usurper’s possession, identify the legal responsibility of each of these hands, and establish the legal foundation for such responsibility in light of both Jordanian civil law and Islamic jurisprudence.

Methods: A descriptive and analytical approach was adopted by presenting the relevant provisions of the Jordanian Civil Code concerning usurpation and analyzing their conformity with the principles and rulings of Islamic jurisprudence.

Results: The Jordanian legislator does not differentiate between the various hands that succeed the usurper’s possession of property. All such hands are treated equally as hands of guarantee, regardless of whether the possession occurred in good faith and based on a lawful transaction, or in bad faith through usurpation or by taking possession from the original usurper.

Conclusion: The Jordanian legislator should take into consideration the principle of good faith in property-related transactions and distinguish between possession acquired through good faith and lawful transactions, and possession resulting from bad faith or usurpation. It is necessary to reconsider the prevailing rule that "every hand resulting from the usurper’s possession is a hand of guarantee" and instead recognize the legal disparity between different types of possession.

Crimes Committed on Metaverse Platforms and the Challenges They Pose to Criminal Law

2025-06-16T14:08:19+03:00

Objectives: This study aims to demonstrate the extent to which traditional criminal law falls short in addressing crimes committed within the metaverse. It further seeks to clarify the impact of using avatars on determining the subjective element of crime in the metaverse environment and to offer both theoretical and practical proposals for adapting criminal provisions and prosecution mechanisms to the unique nature of metaverse-related crimes.

Methods: The study adopts an analytical approach to assess the applicability of traditional legal rules to acts that threaten legally protected rights and interests when committed within the metaverse.

Results: The study arrives at several key findings, most notably: the metaverse constitutes a potential environment for novel criminal acts that may evade traditional forms of criminalization; reliance on avatars undermines the ability to establish the subjective element of a crime; a legislative gap exists that, at times, hinders the prosecution of metaverse-related crimes; and procedural challenges persist, such as difficulties in identifying users and collecting admissible evidence.

Conclusion: The study recommends amending general rules of criminalization and punishment, developing advanced technical verification mechanisms to link digital identities with real-world individuals, and establishing effective international legal cooperation to ensure that criminal legislation keeps pace with the rapidly evolving digital landscape.

The Legitimacy of the State's Punitive Authority in The Event of Its Failure to Fulfill Its Social and Economic Obligations

2025-07-28T10:31:08+03:00

Objectives: This study aims to highlight the boundary between the state’s legitimate authority to impose punishment and the loss of that legitimacy when individuals and groups suffer poverty, marginalization, lack of social justice, and unequal opportunities. When the state fails to meet its social and economic obligations, its right to punish loses both moral and legal justification.

Methods: The research relies on the deductive approach, starting from the principles governing the state’s rights over individuals and the individuals’ right to exemption from punishment when the state fails its duties. The cognitive approach was also used through observing legal realities and judicial practices.

Results: The study shows that the state prioritizes its right to punish over its duty to provide a crime-free environment. Institutions rarely connect crime motives to sentencing individualization, while the principle of legality remains paramount. As a result, punishment continues even when crimes stem from the state’s failure to fulfill its social and economic responsibilities, raising questions about its moral legitimacy.

Conclusion: The state’s right to impose penalties still enjoys absolute legitimacy, especially in justice institutions viewing the criminal system as fully coherent. This calls for the state to meet its economic and social obligations to grant moral legitimacy to its penal actions, adopt economic assistance measures to prevent institutional collapse, and balance legal principles with reality, ensuring laws are applied logically rather than rigidly.

The Legal Challenges of Determining the Applicable Law in International Electronic Contracts: A Comparative Analytical Study

2025-08-31T11:39:16+03:00

Objectives: This research aims to analyze the legal issues related to determining the applicable law in international electronic contracts, highlighting the shortcomings of traditional conflict-of-laws rules, and proposing legislative reforms that consider the unique nature of the digital environment.

Methods: The study adopts a descriptive, analytical, and comparative approach by examining relevant international and Arab legal texts, reviewing judicial precedents and scholarly opinions, and presenting practical models from cross-border e-commerce contracts.

Results: The findings show that electronic contracts are legally valid when they meet the essential elements of consent, capacity, and legality. The “characteristic performance” criterion appears to be the most appropriate for determining the applicable law when no explicit agreement exists between the parties, provided adequate consumer protection is ensured in business-to-consumer (B2C) transactions.

Conclusion: The research addresses the challenge of identifying the governing law for international electronic contracts and proposes Arab legislative reforms characterized by technological neutrality, strengthened party autonomy, enhanced consumer protection, and harmonized legal frameworks in line with the evolving digital environment.