Arab German Journal of Sharia and Law Sciences (AGJSLS)

Criminal Policy and Economics: Manifestations and Limits of Influence and Vulnerability, Business Law in Moroccan Legislation as a Model

Saadia Majidi — 2024-06-15

Economic development in the modern era has led to the emergence of crimes different from traditional crimes that affect the national economy and develop alongside the development of the economic and social life of individuals and societies. This has prompted legislators to enact legal rules regulating these matters. The Moroccan legal system related to trade and business has witnessed a radical transformation over the past decade, represented by the amendment of a set of commercial legal texts and the enactment of new ones, as classical criminal law does not accommodate this number of transformations, especially in the field of business.
This study discusses the extent to which the Moroccan legislator has succeeded in controlling business crimes at the level of concept and specificity, and at the level of criminalization and punishment, and the effectiveness of the legal texts included in the criminal law for business in framing and combating business crimes. It aims to approach this topic and suggest possible solutions to address it. It deals with business crimes looking at criminal legitimacy, privacy, and procedures for research and proof in business crimes.
The study concluded that the technical characteristics of the business field negatively affected the formulation of criminal rules and texts for business, especially with regard to the use of broad terms that carry many legal meanings. There is duplication in the texts regulating the field of business, as well as duplication in the bodies that carry out legislation, and confusion among Moroccan legislators in formulating legal texts related to the field of business due to combining the Latin and Anglo-Saxon schools.
The study recommends the need for the independence of criminal law for business, by creating special provisions within codification independent of the codification of criminal law, the need to limit the arbitrary use of authorization, and the need to reduce the intensity of criminalization in the field of business, by adopting a clear and deliberate policy to limit criminalization, limit punishment, and expand the scope of penalties while being inclusive of all the guarantees prescribed for criminal penalties.

The Obligatory Bequest (Will) in Islamic Jurisprudence Compared to Emirati Law

Iyad Ahmad Ibrahim — 2024-06-15

God has legislated the bequest (will) for us from one-third of the wealth, and it should not be for a relative who is an heir. It often happens that a person dies during the lifetime of one of his parents, leaving behind children. When a grandfather or grandmother dies, the grandchildren are withheld from the inheritance and it is divided among their uncles. The obligatory will has recently appeared in law, which has allocated these grandchildren a share of their grandfather’s money in accordance with the law. This study aims to identify the jurisprudential opinions on the issue of the obligatory will, the position of Emirati law regarding the entitlement of grandchildren withheld from the obligatory will, its amount and conditions, and the legal origin of the obligatory will in Islamic jurisprudence. The study concluded that the scholars of the zahiri school of thought were of the view that a will is obligatory, and therefore it is taken from the person’s estate if he dies and did not make a will during his life. Because it is an obligation in their view, the right to it is not forfeited by the death of the person. However, the majority of scholars held that a will is desirable and recommended, so nothing is taken from the deceased’s estate if he did not make a will during his lifetime. Emirati law based its obligation of the will on the opinion of the zahiri scholars, who say that the will is obligatory for anyone other than the heir. Emirati law allocates it to the withheld grandchildren and not the rest of the relatives, so that it is for the son’s children and the daughter’s children, and any of these children’s children. The male is allocated the equivalent of the share of two females. Based on its findings, the study recommends the need for the grandfather to make bequests to his grandchildren during his lifetime as a precaution and to avoid jurisprudential disagreement, and the need to direct people more to be careful about making bequests to their relatives who do not inherit, especially the grandchildren who are withheld from inheritance.

The Criminal Protection of the Aquatic Environment in the Context of Sustainable Development: An Analysis of Jordanian Legislation

Safaa Otani — 2024-06-15

The protection and conservation of ecosystems are of paramount importance for optimal utilization, particularly of the aquatic environment. This study aims to outline the approaches of the Jordanian criminal legislator in protecting the aquatic environment from pollution and to analyze the legal regulations for its preservation, ensuring the establishment of qualitative protective policies that prevent the depletion risks for future generations and meet Jordan's commitments to achieving sustainable development goals simultaneously. This is especially critical given the pressing water situation in Jordan.

To achieve the study's objectives, the researchers employed descriptive and analytical methodologies to address the study's issues. The first section explored the nature of the aquatic environment as a value protected by criminal law, while the second section discussed the legal framework for the criminal protection of the aquatic environment in Jordanian legislation.

The study concluded that an examination of the legislation reveals a significant concern from the Jordanian legislator in addressing violations that may occur against the aquatic environment. This is evidenced by the multiplicity of laws concerned with its protection, extending the scope of protection to include both quantitative and qualitative measures, criminalizing a wide range of actions, and adopting a broad approach in defining criminal activities. However, this multiplicity may lead to the pitfalls of overlapping applicable texts and the intermingling of their provisions. Consequently, the study recommends that related legislations on environmental protection should serve as a tool to guide the behavior of administrations, economic activities, and citizens to protect various environmental elements. Furthermore, the "Environmental Protection Law" should exclusively address criminal measures, stipulating the provisions of criminalization and punishment and organizing the rules of criminal responsibility within it, to prevent any conflict or ambiguity in the realm of criminal protection of the environment in general, and the aquatic environment in particular.

Justifications for War in Islamic Law: A Comparative Study with Contemporary International Law

Moayad Al-Soud — 2024-06-15

This study aims to identify the reasons that justify the state’s use of military force in self-defense according to Islamic Sharia, in comparison with the justifications in contemporary international law. In this study, we have adopted the inductive method by tracing the particulars related to the topic in their sources, the deductive method in extracting rulings from Sharia and legal texts, and the comparative method in comparing the rulings of Sharia with the law.

The study concluded that the justifications for war of various types in Islamic Sharia are limited to two cases: legitimate defense and the achievement of justice. This includes self-defense, repelling injustice, supporting the oppressed who are unable to defend themselves, ensuring freedom of belief, ensuring the safe delivery and dissemination of the Islamic message, cooperating with non-Muslims in fighting a common enemy, and repelling aggression against others. In contrast, international public law limits justifications to cases of legitimate defense and Security Council resolutions, and the use of military force is not justified except in the case of an armed attack. The study also concluded that offensive warfare is considered nothing more than preventive defense.

Custom as a legislative Source and its Impact within the Framework of Islamic Law and Statutory Law

Muhammad Al Hail — 2024-06-15

This research aims to shed light on customs as a legislative source in both Islamic and statutory law. Customs are considered one of the legislative sources under the provisions of Islamic Sharia and statutory law, and they have an impact on both, in addition to the authority they hold as evidence. The research examines the advantages, pillars, and effects of customs. Islamic scholars have paid significant attention to customs, setting regulations for them, and considering them a legitimate source as long as they do not contradict a definitive text or legitimate evidence. Customs have also influenced secular laws and have been an important source for them. Unlike statutory law, customs in Islamic jurisprudence are subject to strict conditions, whereby the beneficial custom is approved, and the harmful one is annulled. However, secular law, which makes custom binding on individuals, may adopt both beneficial and harmful customs due to the lack of distinction between them, provided they are consistent with the law and do not contravene public order. Islamic jurisprudence requires the presence of the moral element in customs, without addressing the material element, unlike secular law which requires the presence of both material and moral elements.

As a result of the variations in customs within a single country according to regions, the legal unity of customs is negated, contrary to the law. Additionally, some sections of the law do not align with customs, as is the case with penal law where there is no punishment except by text, whereas custom is considered in private, international, civil, administrative, and constitutional law.

The study recommends examining examples and applications based on customary practices, since customs are not documented. It suggests that authorities responsible for issuing fatwas and judicial decisions document the prevailing and practiced customs among individuals to rely on them during judgments, fatwas, and dispute resolution.

Contracts of Trusteeship in Islamic Jurisprudence: The Guarding Contract as Exemplified by the Saudi System

Nada Alkhayer — 2024-06-15

The current research addresses trust contracts in Islamic jurisprudence, focusing on guarding contracts in the Saudi legal system as a model for safeguarding rights and combating violations. The study includes an analysis of the concepts of trust contracts and guarding, highlighting the importance of different types of guarding in people's lives, whether public, private, or related to important figures. The research discusses the applications of the guarding contract within the Saudi legal system, particularly in guarding public facilities and private establishments, with an emphasis on the conditions and pillars of the contract and the responsibilities of its executors.

The research findings indicate that guarding has existed in Islamic societies since their inception, and the Saudi legal system has established conditions and instructions to regulate guarding. Based on these findings, the study recommends the necessity of enhancing the balance between responsibilities and rights in guarding contracts, and the development and improvement of related legislations and legal provisions to ensure a safe and transparent environment. Additionally, it suggests strengthening communication between security companies and private establishments to better understand clients’ needs, and encourages practical research and studies to analyze and improve the efficiency of guarding contract implementation in the Saudi context.