Prof. Youssef Obeidat
Professor of Civil Law
Dean of the Faculty of Law
Yarmouk University, Jordan

Abstract:

This study deals with the issue of the discretionary power of the judiciary in applying the provisions of the Jordanian Court of Cassation in the issue of the decisive oath. The Supreme Court is a court of law that monitors the proper application of the law by the subject courts, and it is not a court of facts. The purpose of its establishment was to unify the legal application in the state, and through carrying out this task it does not create legal texts to be applied by the lower courts. But the practical application and reality point out that the court put itself in the position of the legislator when it set the legal rule that it applies to the dispute presented before it, when there is no text that governs the issue, or when there is a general text, or even when it deviates from the existing text in some cases. What the dealing individuals require is respect and ensuring that they obtain their rights and respect for their legitimate hopes and expectations based on the codified texts of the laws.
Legal security and judicial security require the unification of the judicial rulings issued, and the non-violation of the legal texts in force, as has already occurred in the case of the court’s making the opponent understand that he has the right to direct the decisive oath to his opponent. The study concluded by presenting a recommendation to the legislator to follow in the footsteps of the rulings of the Court of Cassation, and to stipulate that the decisive oath may be directed as a precaution. It also stipulates that it may not be directed to prove what contradicts what is written.

Keywords: supreme court, legal security, jurisprudence, decisive oath, legal security.

Read Full PDF Text (Arabic)