The foundations of civil liability for damages in employment contracts; A comparative study between Iraqi law and Islamic law

Abstract

The assessment and compensation of damages in labor disputes is a core issue in legal jurisprudence, directly impacting workers' rights and social justice. This topic intertwines legislative and jurisprudential dimensions, with special importance in Iraq where the legal system’s interaction with Islamic Sharia necessitates a precise comparative study of the two systems to define integration and divergence on damage and compensation. This research analyzes the legal and jurisprudential mechanisms for assessing and compensating damages in labor disputes, highlighting agreements and differences between Islamic Sharia and Iraqi legislation. The study’s significance is the need for an integrated methodology balancing worker rights and employer interests, offering practical solutions for legislative gaps. The research focuses on achieving effective compensatory justice by analyzing and evaluating legal and jurisprudential mechanisms for assessing and redressing harm, concentrating on Iraqi legislation’s harmony with Islamic principles and the adequacy of these mechanisms in protecting rights and achieving socioeconomic stability. The research adopts a comparative analytical method, studying relevant Iraqi legal texts and analyzing them against Islamic jurisprudential principles. It employed legal analysis, judicial precedents, and jurists’ opinions to identify similarities, differences, and evaluate the practical effectiveness of current mechanisms. The study shows both systems emphasize redressing harm and achieving compensatory justice, yet differ in assessment methodology and compensation scope. Iraqi legislation grants judges broad discretionary power based on general texts, while Islamic jurisprudence provides greater flexibility through maxims like "la darar wa la dirar." The study also revealed Iraqi law’s need for more precise objective standards, especially for moral and future damages, and to utilize jurisprudential principles to establish clear controls on judicial discretion. Findings underscored the need to enhance technical expertise and unify judicial precedents to ensure justice and equality, and stressed improving judgment enforcement and activating alternative dispute resolution like mediation and arbitration. The research concludes on the need to develop the damage assessment and compensation system in labor disputes through an integrative approach, merging legislative precision with Islamic jurisprudential flexibility. Recommendations include: unified compensation standards, enhanced technical expertise, activating mediation and arbitration, and a national labor damages fund. It also proposes updating legislation to ensure effective worker protection and balanced interests, urging more comparative studies to advance Iraq’s legal system to meet new developments and achieve desired social justice.