The Specialities of Judiciary in Iraqi Law and Islamic Jurisprudence

Abstract

Jurisdiction rules are the legal rules that determine the jurisdiction of state courts to hear a particular case, and the jurisdiction of any of the different courts within a single state.The expansion of daily life and the complexity of legal, social, economic, administrative and political relations necessitated the distribution of judicial adjudication powers in various disputes between several jurisdictions, each of which is specialized in a specific type of disputes. There are administrative, civil, and criminal courts, each of which is divided into several sections. The nature of facilitating the process of litigation and the acquisition of rights ... And then there are more than one grade for the courts of one type, what is issued by the Court of First Instance of the decisions are subject to the control and scrutiny of the Court of Second Instance, and the latter decision is subject to the supervision of the Court of Third Instance (which is the Court of First Instance). We have in Iraq, called the Court of Cassation in some countries).This multiplicity of degrees in the courts is required by justice and requires the need for judicial decisions to be a high degree of impartiality, a judge who knows that his decision is subject to scrutiny from a higher point of view will strive to be a fair, correct and accurate.This diversity in the courts, and the multiplicity of degrees, must determine the jurisdiction of each type of courts, and the powers of each degree, which is addressed in the subject of jurisdiction.In disputes where the parties are collectively of the same nationality, there is no problem in determining the law applicable to the subject matter of the dispute and the court competent to hear it. The problem lies in the dispute in which a foreign party is involved, because in this case it is necessary to first consider the court of any State whose jurisdiction is to be dealt with in this type of dispute. After determining the State whose courts are considering the dispute, the nature of the dispute is considered functionally: are disputes subject to the jurisdiction of the judiciary or are there sovereign aspects that affect the interests of the supreme State and prevent the courts from considering them? Once it is established that the dispute is subject to the courts of a particular state, and does not affect its sovereignty, then it is considered to determine the nature of the dispute to designate the competent court in terms of quality and value, which is called substantive jurisdiction, and determine the court of a place or territory of the state to be decided, which is called By spatial competence.Since international and domestic jurisdiction is at the heart of the Iraqi Civil Procedure Law, the Code of Procedure in force No. 84 of 1969 did not include any reference to the rules of jurisdiction that were scattered between more than one law, especially the Iraqi Civil Code No. 40 of 1951, and the Status Code. This is one of the legislative flaws suffered by the Iraqi legislation, in addition to a number of other shortcomings in this research tried to put them under scrutiny and give the most successful solutions, especially since the rules of competence in the Iraqi legislation has not been previously discussed independently A suggestive framework D to jurisdiction from A to J. Moreover, in Islamic jurisprudence, there is an unprecedented wealth of jurisprudence on the subject of jurisdiction, but it is scattered in the stomachs of mothers of jurisprudential books and distributed on the most possible jurisprudential door. The book of Islamic jurisprudence and evidence of Sheikh Dr. Wahba Al-Zuhaili, but in a very brief in the eighth part of the book.This research is an earlier step on the road to discuss the rules of competence in Iraqi legislation and Islamic jurisprudence more deeply and accurately, to highlight the greatness of Islamic thought and is trying to date the best legislation to reach them.This research will try a simple in this field.God grants success