Dr. Daoud Salman bin Issa
Assistant Professor of Comparative
Jurisprudence and Islamic Studies
Kuwait International Law School (KILAW)

Dr. Dr. Lafi Mohammed Al-Raqib

Assistant Professor
Faculty of Education
Kuwait University

Abstract:

This paper investigates the concept of arbitrary rules and its historical development as a theory. Furthermore, it discusses how time and place had changed some concepts that confer rights to certain individuals other than the rest of society. Particularly, in this context, arbitrariness is viewed as a right, although it may end up harming others in the process. Also, this paper explores the relationship associated with the abovementioned theory as well as other theories namely, the theory of infringement from several perspectives in terms of profit and benefit. It further investigates the reason that some contemporary legal and sharia scholars still maintain their connection to arbitrariness. All this is to achieve the requirements for participation in the Eighth Annual International Conference of Kuwait International Law School: The Historical Roots of Legal Theories and Codes.
However, the purpose of this paper is to find out the solutions that can eliminate the arbitrariness issues in Sharia rules and regulations of Sharia. In this respect, it highlights a variety of arbitrariness forms that have been divided by scholars as per causation and directness. Therefore, this paper aims to show the greatness of Islamic jurisprudence that is still relevant for every time and place. Moreover, although arbitrariness has been generally determined by the rules of Sharia, sometimes it prevents rights by mere conjecture, and this is what must be highlighted and reconsidered to know the reality of arbitrariness and the concept of arbitrariness theory. In general, this paper includes an introduction, three parts, and a conclusion. The first part investigates the development and history of the concept and theory of arbitrariness. The second part discusses the intention of the legislator in terms of rights and the arbitrariness inflicted by them, including profit and benefit, in both Sharia and law. The third part highlights arbitrariness forms and the extent to which the infringement mentioned by the jurists comprehended by them. In doing so, this paper answers many questions, but most importantly are the following questions: How arbitrariness theory can be applied in reality, and why this theory was separated from the infringement theory, and thus in turn, is it singled out by contemporary scholars?
In this paper, the researcher uses the comparative approach and the critical analysis approach. The researcher concluded that the concept of arbitrariness theory has been developed over time in a manner consistent with justice and in a way protecting others from harm. Due to such development, some issues related to arbitrariness are still unexamined. In this respect, it is claimed that infringement, in terms of concept and forms, may be associated with all forms of arbitrariness. This leads to a conclusion that contemporary scholars have considered arbitrariness as a theory to be in line with law, and then to be modified in accordance with Islamic Sharia. But this leads to the application of the following rule: ““Whatever can’t be gained in its entirety should not be discarded entirely.” Consequently, this issue should not be determined by the western law that contradicts our Sharia rules.

Keywords: infringement, arbitrariness, right, directness, causation, intent of legislator.

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