Usurpation Between Sharia and Law: An Analytical Study

Abstract

This research seeks to study usurpation as an aggressive behavior prohibited in Islamic law and criminalized in positive legislation. It analyzes its concept, pillars, and legal and jurisprudential implications, while highlighting the similarities and differences between Islamic jurisprudence and Iraqi civil law. A comparative analytical approach was adopted, combining textual study of the jurisprudential heritage with an examination of legal texts and judicial decisions.

 The study examines usurpation in terms of its linguistic and technical definition, tracing the evolution of the concept across the four schools of jurisprudence. In jurisprudence, usurpation is considered the unlawful, public, and aggressive seizure of another's property. Some schools of jurisprudence include non-material benefits and rights, such as freedom and sovereignty. Iraqi law, however, merely provides provisions for usurpation without a comprehensive definition, resulting in shortcomings in addressing some emerging forms of usurpation. The researcher used Yemeni law as a more advanced legislative model to define usurpation legally.

The research focuses on clarifying the three pillars of usurpation: the usurper, the usurped, and the usurped from, from both the jurisprudential and legal perspectives. It also provides a detailed analysis of the conditions of each pillar and the resulting guarantees and restitution of the property or its equivalent, depending on the nature of the property and the position of the usurped. The research also addresses the overlap between usurpation and other similar acts, such as looting, theft, banditry, aggression, destruction, and seizure, highlighting the subtle differences between them in terms of the means and the legal or Sharia ruling.