Dr. Abdullah Awaid Al Rashidiy
Assistant Professor of Comparative Jurisprudence
College of Sharia and Islamic Studies
University of Kuwait

Abstract:

This research discussed the topic of the discretionary authority granted to the judge and its application to contracts in Islamic Jurisprudence and the Kuwaiti civil law. The importance of the research lies in controlling the differences among the similar legal judgments and showing the role of the discretionary authority in achieving the desired justice. The research links the legal side to the jurisprudential side through showing the discretionary authority granted to the judge on the contract in the Islamic jurisprudence and the Kuwaiti civil law. The research aims at showing the essence of the discretionary authority and its controls as well as showing the applications of the discretionary authority on the contracts in the Islamic Jurisprudence and the Kuwaiti civil law.
To achieve these targets, the analytic descriptive approach was adopted in showing and analyzing the legal texts and the concepts related to the study. The research problem was represented in showing the borders of the discretionary authority granted to the judge on the contracts in Islamic Jurisprudence and Kuwaiti civil law. The research highlighted the definition of the discretionary authority for the judge and the legality of granting this authority to the judge. The research also shed the light on the discretionary authority given to the judge and its legal and Sharia controls. It referred to the importance of supervising the judges during their use of the discretionary authority and the sufficient procedures in controlling the judges’ usage of this power.
The research paper mentioned the bulk of the applications of the discretionary authority on the contracts such as the authority given to the judge in defining the performance of the contract, its validity, its dissolution, and the hindrances that prevent contract implementations. The paper reached several results including that the Kuwaiti civil law set limits to the discretionary authority to the judge and granted the judge this authority in many situations such as making the contract or not and identified the hindrances that prevent contract implementations. The research recommends intensifying comparative studies between jurisprudence and law and qualifying the legal cadres to make use of the granted discretionary authority as required.

Keywords: judicial authority, judge’s powers, limits of discretion, legal theories, Sharia controls.

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