Browsing by Department "Department of Islamic Law"

This research discusses the provisions of maritime cargo transportation in Islamic jurisprudence and their application in Yemeni maritime law. The study elucidates the nature and characteristics of maritime transport contracts, identifying the obligations imposed on the carrier and the shipper. It also delves into the provisions of the bill of lading which is the document that contains the details of the transported goods and the terms of transport, playing a crucial role in commercial exchanges. Additionally, the research addresses the liability of the maritime carrier in cases where the transported goods are damaged. The study further explores the application of Islamic legal principles related to maritime cargo transportation in Yemeni maritime law. This research aims to collect the jurisprudential rulings that address the issue of transporting goods that spread across various chapters of jurisprudence and then applying them to Yemeni maritime law. The research concludes that Islamic jurisprudence is rich with rules and provisions that regulate contractual transactions between shipowners on one hand and cargo owners on the other, encompassing various aspects of maritime transportation. These provisions are distinguished by their ability to safeguard the rights of both the carrier and the shipper by ensuring a balance and equity between their rights and obligations and avoiding the potential abuse of power by the stronger party in the maritime transport contract. Moreover, these provisions guarantee fair compensation to the injured party in cases of loss, damage, or delay of goods without stipulating exemption from liability or setting a predetermined amount. The maritime carrier's liability is established based on a presumed responsibility, from which the carrier cannot disclaim unless proving an external cause. Keywords: maritime cargo transportation, provisions of Islamic jurisprudence, goods, Yemeni maritime law.

This study deals with The Application of the legal maxim, "Custom is a Basis for Judgement" (al-'Adah Muhakkamah) in the Sultanate of Oman. Custom has been incorporated in the civil legislation of many Arab and Islamic countries. One example is the Omani Civil Transactions Law 2013 (CTL). The main question that this study addresses is to what extent the Omani CTL adheres to this maxim in terms of application and disregard. The thesis finds that Omani law has applied custom in many areas. However, it is noticed that Omani law disregarded the use of the custom in other subjects. The study aims to discuss the effect of the rule of "Custom is a Basis for Judgement" and its consideration by jurists and legalists to assess the extent of the application of this maxim in the Omani CTL. This thesis also discusses the aspects of implementing this maxim to indicate the impact of disregard. Additionally, the study has formulated and proposed solutions and suggestions to address this deficiency and disregard. The study relied on descriptive, analytical, and critical approaches to analyse articles, legal texts, and judicial rulings. It also employed the inductive method in researching and extrapolating the scattered details on the topic from various sources, references, laws, and judicial rulings. Additionally, it utilised a comparative approach with the Egyptian and Jordanian civil law. The study includes outcomes from interviewing judges and those with experience and expertise in the legislative and judicial fields. The main finding of this study includes that the Omani laws were affected by the use of the legal maxims in general and by the maxim " Custom is a Basis for Judgement " in particular. The influence has also been reflected in the Omani judicial rulings, as the judiciary has applied this maxim in its judgements. Hence, this maxim has impacted the rulings of the judiciary and the principles of the Supreme Court of Oman. The Omani legislator has applied custom in more than thirty instances, including the implementation of custom in determining the measure of arbitrariness in the use of the right, the implementation of custom in allowing conditions in contracts, and the implementation of custom concerning guaranteeing hidden defects. On the other hand, the Omani legislator did not apply the custom in over twenty instances compared to the Egyptian and Jordanian legislations, including the disregard of the rules for interpreting the contract emanating from the legal maxim following the Egyptian legislator's approach, whereas the Jordanian legislator has outlined more than twenty such rules. Additionally, custom in sharecropping has been overlooked despite its need, aligning with the Jordanian legislator and diverging from the Egyptian legislator's approach. Moreover, customs related to Aflaj (traditional irrigation systems) have been ignored, despite their prevalence and the reliance of Omani judicial rulings on them, following the Egyptian and Jordanian legislations. The study recommends some suggestions to address and reform the problem, as mentioned in the conclusion of this thesis.

This research aims to shed light on the formulation of the legal framework for free and fair election to the Shura Council in the Sultanate of Oman in a comprehensive and precise manner. This is achieved through studying the general legal jurisprudential foundations of their elections, historical trajectory, types, methods, and conditions. It also involves investigating the principles, foundations, and legal guarantees of free and fair elections, by discussing the electoral system of the Shura Council in the Sultanate of Oman by specifying the relevant committees, their levels, and jurisdictions. This study also examines the rules of electoral campaigning, electoral participation procedures, counting, and announcement of results. Additionally, it also takes into consideration the challenges faced in conducting free and fair elections for the Shura Council in the Sultanate of Oman, identifying electoral crimes, their consequences, and the requirements and possibilities for ensuring free and fair elections. The research problem lies in the need to ascertain the extent to which the legal frameworks for electing members of the Shura Council contribute to achieving the freedom and integrity of elections in the Sultanate of Oman. This research aims to identify the legal frameworks for electing members of the Shura Council and to elucidate their contribution to ensuring the freedom and integrity of elections. It also seeks to examine the electoral system employed for electing members of the Shura Council in the Sultanate of Oman from all its legal and legislative dimensions. This is done to uncover the most significant difficulties that ensure freedom and integrity in the elections of the Shura Council members in the Sultanate of Oman, and to identify the necessary requirements to warrant the achievement of freedom and integrity. This is carried out in order to formulate the legal framework for free and fair elections to the Shura Council in the Sultanate of Oman. The researcher has employed and applied the descriptive-analytical method, the inductive method, and the applied method. This research concluded with a series of findings and recommendations, the most prominent of which is highlighting the shortcomings in current legislative texts and proposing alternative provisions. Additionally, it suggests the codification of certain procedures and the introduction of specific guidelines to ensure the realisation of freedom and integrity in elections.