Legislative Choices of the Iraqi Legislator Regarding Marriage Provisions and Their Deviation from the Majority Opinion of Jurists

Abstract

Marriage is one of the most significant topics regulated by Islamic jurisprudence. Differences among jurists regarding the interpretation of religious texts and methods of legal reasoning have led to a multiplicity of jurisprudential opinions concerning many marriage-related rulings. This has afforded legislators in Islamic countries the opportunity to select from among these opinions when codifying personal status laws, thereby serving the public interest and addressing societal needs. The Iraqi legislator adopted this approach when enacting the Personal Status Law No. 188 of 1959 (as amended); regarding certain marriage provisions, the legislator adopted legislative choices that diverged from the consensus of the majority of jurists, basing these decisions on jurisprudential and legislative considerations aimed at regulating and stabilizing family relations.

This research aims to elucidate the jurisprudential and legislative foundations underpinning the Iraqi legislator's choices, analyze key legislative applications where the legislator deviated from the majority juristic opinion on marriage rulings, and assess the extent to which these choices align with Islamic jurisprudence and the legislative policy of the Iraqi Personal Status Law. The study employs a descriptive method to present jurisprudential opinions and legal texts, an analytical method to examine the legislative choices, and a comparative method to highlight points of agreement and divergence between the position of the majority of jurists and that of the Iraqi legislator.

The nature of the research necessitated its division into two sections. The first section is dedicated to outlining the jurisprudential and legislative framework of the Iraqi legislator's choices regarding marriage rulings; this is addressed through two subsections: the first examines the jurisprudential basis for these choices, while the second addresses the legislative basis upon which the Iraqi legislator relied in adopting them. The second section is dedicated to examining the legislative applications of the Iraqi legislator's choices regarding marriage provisions that diverge from the views of the majority of jurists. This is addressed through two subsections: the first examines the Iraqi legislator's departure from the majority view regarding the essential elements and conditions of the marriage contract, while the second addresses divergences concerning specific marriage-related rulings. The study concludes with a summary of key findings and recommendations.