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.