The Theory of Arbitrariness in the Use of the Right in Islamic Jurisprudence and Civil Law A Comparative Analytical Study in the Light of Modern Legislative Controls

Abstract

This research deals with the study of the theory of arbitrariness in the use of right in Islamic jurisprudence and comparative civil law, as one of the most important modern theories that has readjusted the concept of right from being an absolute authority to being a social function restricted by objective controls.

The study started from the analysis of the historical and jurisprudential roots of the theory, and then dealt with the forms of arbitrariness and its criteria, passing through the judge's authority to estimate its existence and limits, and ending with the legal implications of it in jurisprudence and civil law.

The research relied on the comparative analytical approach in the study of jurisprudential and legal texts, with the aim of highlighting the aspects of agreement and difference between Islamic jurisprudence and civil law in dealing with forms of abuse of rights.

The research concluded that Islamic jurisprudence has provided an advanced conception of the idea of restricting the right through its general rules, while modern civil law has developed normative tools to control the exercise of rights through judicial intervention and expanding the concept of the social function of the right.

The research also concluded that the theory of arbitrariness represents an effective legal tool to achieve equilibrium justice between the parties to the legal relationship, provided that its application is controlled by objective criteria that prevent unjustified expansion of the judge's discretion.