Prof. Mohamad Irfan Al Khatib
Professor of Civil Law – Ahmed bin Mohammed
Military College – Doha – Qatar

Abstract:

The research presents an original academic study that sheds light on the determinants of the source role of judicial jurisprudence in civil law, within the French and Arab schools, accredited as an expression of the latter on both Egyptian, Syrian and Lebanese law. In order to clarify the nature and specificity of these determinants in the four different legal systems, especially the role they played in limiting or activating the role of the judiciary in creating the legal text within it. Hoping to provide an Arab contribution that helps achieve a greater understanding of these determinants in the French and Arabic schools. This is according to a comparative critical analytical approach, presented in the first section, of legal determinants of a constitutional nature. On the second, it deals with its counterparts of a legislative nature, with a positive and religious dimension.
The research has proven that these determinants, in their constitutional and legislative concepts, insofar as the beginning of the innovative aspect of the judicial work in crystallizing the legal base was measured, as it was later an effective factor in promoting and consolidating this innovative aspect. The research also showed the religious privacy of these determinants in the Egyptian and Syrian law, which limited, to the extent of obstruction, the positive and creative role of the civil judge in them. Accordingly, the research confirmed the necessity for the legislator in the four countries to acknowledge that these determinants were never restrictions on the source role of judicial jurisprudence, but rather frameworks that work diligence within their scope, which holds jurisprudence and the judiciary a legal responsibility based on clarifying the limits of the difference between these two facts, with the aim of advancing the legislator to truly acknowledge that this new understanding of the nature of these determinants and their successors of the innovative role of judicial work is not a shift in these frameworks as much as it is a re-understanding of them and their structure. The research also confirmed that the Egyptian and Syrian legislators should be more in harmony with themselves and with the legal system in which they work, by reviewing the legal base sources and clarifying the legal position on the religious privacy that marked these sources, and moving from the broken gray to a clearer level by this innovative role of its religious rather than positivist origin.
A move, as simple as uttering it, as difficult to carry forward …
Keywords: jurisprudence. judge’s innovative role. principle of separation of powers. principles of natural law. justice rules.

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