الاستحسان الأصولي وأثره في نظرية الظروف الطارئة: نماذج تطبيقية

Mohamed Khaled  Mansour; Heba Mohamed Khaled  Mansour

doi:10.35516/law.v50i2.1256

Authors

Mohamed Khaled Mansour Department of Jurisprudence and its Foundations, College of Sharia and Islamic Studies, Kuwait University, Kuwait https://orcid.org/0000-0002-7511-370X
Heba Mohamed Khaled Mansour Researcher in Jurisprudence and Foundational Studies, Amman, Jordan. https://orcid.org/0000-0003-3866-7911

DOI:

https://doi.org/10.35516/law.v50i2.1256

Keywords:

Juristic discretion, theory, circumstances, emergency

Abstract

Objectives: This study aims to link the theory of emergency circumstances and juristic discretion, and the link between the jurisprudential topics and foundations. The study also aims to clarify the effect of juristic discretion and its status in the theory of emergency circumstances, and its effect on situations of pandemics, the excuse theory and the change value of the currency.

Methods: The study explored the meaning of juristic discretion and the theory of emergency circumstances, and the precise description of the pillars of juristic discretion and the theory of emergency circumstances to determine its effect on the theory in question. The research followed the analytical method to analyze texts of juristic discretion and link them to the theory under investigation. The research followed the deductive approach to conclude such an effect on theoretical applications.

Results: The research found that juristic discretion in the theory of emergency circumstances is the use of the exception approach to avoid some of the effects that result from the emergency circumstances in contractual obligations in order to achieve justice and remove injustice and objection from the contracting parties, according to the theory of necessity in Islamic jurisprudence. This result applies to all applications of the theory.

Conclusions: The theory of emergency circumstances is generally a kind of juristic discretion and an exception to the rule that contracts are abiding and must be fulfilled; juristic discretion is based on several aspects, it is based on justice and the removal of objection and harm.

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