Alnoor Journal for Legal Studies

The role of the State Council emerges as an ancient institution that extends its roots to the Bureau of Legal Codification, and emerges as a safety valve in the Iraqi legal system in the areas of auditing draft legislation and ensuring its quality in terms of substantive and formal aspects and in the field of interpretation and fatwa in determining how to interpret the texts of these legislations after their entry into force if it is resorted to by the various departments, as well as the annual report submitted to the General Secretariat of the Council of Ministers that includes the lack of legislation in force or Ambiguity or cases of abuse of authority by any administrative body or exceeding those of its powers or a proposal to prepare new legislation. Since the State Council plays an important role in the field of scrutinizing draft laws in terms of formal and substantive aspects, in the sense that it arranges draft legislation received from government agencies according to the principles of correct drafting in order to ensure the unity of legislation, unify the foundations of legislative drafting, and unify legal terms and expressions that ensure the quality of legislation and achieve the desired goal, and the harmony of this legislation with the prevailing legal system in Iraq to ensure the promotion of the idea of legal security, and the protection and maintenance of public rights and freedoms.

The policy of criminalization and punishment is not an incidental or transient issue, but must be approached in a controlled manner through which to achieve the desired objectives in order to combat the phenomenon of crime on the one hand, and to maintain the success and legacy of legislation on the other, by maintaining the legal security and stability of that legislation There are many determinants upon which the origins of criminal policy in the penal legislation in general are followed in its provisions to achieve its objectives, but in the special penal legislation is characterized by its own rules make it tends to severity in the side of criminalization, by departing from a lot of force As a constraint to the general provisions of the general punitive legislation, the public considered this to be the purpose of its legislation, as well as by the punishment it had its own criminal policy in this regard, as it severely sanctioned its penalties in terms of both quantity and quality, and jumped on many general provisions in this regard the field. This makes them more influential on legal security than general punitive legislation.

Legal security is one of the most important goals that legislators aim to achieve, as it is one of the foundations for establishing a state of law and is closely linked to the extent to which states can instill trust between themselves and their citizens. Achieving the concept of legal security is the ultimate goal of legislators. The concept of legal security has become expansive and influenced by the meanings of legal values. Consequently, contemporary legislation attempts to reconcile duties and freedoms, taking into account the various fundamentals of legal security to ensure respect for rights and freedoms. Jurisprudence defines the concept of legal security as any legal system that aims to protect and ensure (without surprise) the optimal implementation of obligations and reduce doubt in the application of the law. The manifestations of legal security are evident when legislators, when enacting legal rules, adhere to a set of principles and rules that enhance trust between the legislator and their society and foster the principle of legal security. It is inconceivable that a legal system exists that does not adhere to the principles and rules of justice. Legal security is an indispensable social necessity to preserve societal security and prevent the spread of chaos. Without it, the social system as a whole collapses, and the rights of individuals and groups are lost

Legal certainty emerged as a concept in the mid-1950s when the Federal Constitutional Court in Germany adopted the idea، followed by the European Court of Human Rights، and later embraced by the French Constitutional Council. The adoption of this concept led to its development، clarification of its foundations، and specification of the effects resulting from its adoption. Stability in criminal law is a goal for legislators، as frequent amendments confuse those subject to the law and its implementers. This situation creates a demand for more punitive legislation، leading to unnecessary legislative inflation. Additionally، the confidence of those subject to the criminal text has become essential; they must understand the scope of the law، and judges should not waste time applying the text، especially with the increasing number and variety of crimes. Existing laws have failed to limit crime، achieve deterrence، or rehabilitate offenders. The stability of criminal text can only be attained through easy and smooth access to it، and legitimate trust in criminal laws can only be established through a necessity that justifies their enactment، ensuring a balance between the act (the crime) and the reaction to it (criminalization and punishment).

Judicial stability is a derivative of legal stability and security, which means the stability of the legislative text and its non-amendment and non-change because the parties to the transaction have built their legal positions and positions in the contracts based on the provisions of the legal rules. There is no retroactivity of the new law because the parties to the transaction have built those positions according to the applicable law. Just as legal stability is based on pillars, judicial stability is also based on the solutions it provides in judicial rulings and affects the extent of its stability on transactions and contracts concluded according to judicial interpretation that should have been applied to it without a new judicial interpretation on those old transactions that were made under the old interpretations

The law is the basic tool for regulating relations between members of society, and legal security is one of the important foundations on which the construction of the legal state is based - which is based on the submission of all state authorities to the rule of law - as any legal system must achieve stability and discipline in all areas, whether in relation to legal positions or material and legal actions. The clarity of these positions and their framing and protection within a legal framework enhances the legitimacy of public authority and leads to the prevalence of stability in rights by everyone (authority, administration and individuals). Security in general is an urgent necessity and a definite need for individuals and peoples. Security is the basis of life and a necessity for civilization, progress and development. It has been addressed by many international instruments, including the International Covenant on Civil and Political Rights 1966. However, this covenant addressed security according to personal aspects, i.e. the right to personal security. Also, when the concept of human security emerged alongside the concepts of human rights, the focus was on personal security and protection from threats involving violence, whether those threats were emanating from the state or the individuals themselves. However, the concept of legal security is a broader and deeper concept than being limited to personal security, as it addresses the legal rule itself.

External marriage contracts are considered one of the legal challenges for the Iraqi legislator, as the legislator tried, through the Personal Status Law, to oblige those about to marry to register their marriage contract and conclude it through the competent court. This was considered a legal condition for the validity of the contract, but that was not sufficient and the phenomenon of concluding a marriage contract outside the court continued, considering that this contract is valid from a legal standpoint on the one hand and the ineffectiveness of the legal penalty against violators on the other hand With the loss of legal security that these contracts represent, which reflects negatively on women’s rights, especially if the man denies the existence of the contract because it is not officially registered, this calls for the intervention of the Iraqi legislator to find legal solutions to confront these contracts. One of the most important of these solutions is the legislation of the law of the legal person authorized to conclude a marriage contract, because it represents the ease of concluding and registering the contract as it is considered one of the effective means to confront marriage contracts outside the judiciary

This subject of this research aims to prove that the Federal Supreme Court has a significant role in promoting, enforcing and supporting a sound democratic system of good governance, human rights and fundamental freedoms in countries. Therefore, the study will address the role of the Federal Supreme Court in developing constitutional law in Iraq, with a particular focus on the Court’s contribution to interpreting the basic concepts of the Iraqi Constitution of 2005 and the guidelines for constitutional interpretation and the thorny issue of whether the Court should adopt a mechanical and literal approach to interpreting the Constitution or adopt a liberal approach aimed at interpreting it as a living political document capable of development. Also, is there any evidence for the Federal Supreme Court to support this claim

States typically seek to attract foreign investments to establish large-scale projects that drive national economic growth. One of the key methods to encourage private foreign entities to invest and enter into long-term contracts with the state is by offering guarantees that create a suitable environment for foreign investments. Among the most significant of these guarantees is the principle of legislative stability, also known as legal stability, which obligates the state not to amend the laws governing international contracts concluded with private foreign entities or to prevent subsequent legislative amendments from applying to these contracts. The principle of legislative stability may be either voluntary or legal, and its effects vary depending on its source. A voluntary legislative stability clause subjects the contract to material rules, thereby exempting it from the authority of national laws. Conversely, legal legislative stability does not affect the legal status of the applicable law, ensures legal security, upholds the legitimate expectations of the parties, and maintains the legal nature of the applicable law. However, it is considered less encouraging for foreign investors.

The employee acts as an administrative tool in managing public facilities. Any deficiency in the employee's performance of the assigned tasks or any shortcomings in the provided services subjects him to accountability. Hence، the philosophy of granting the administration the right to assess the employee's performance and hold him accountable for his shortcomings emerged، providing it with tools to maintain administrative effectiveness. In contrast، relevant legislation ensures that the employee is granted a set of guarantees، prioritizing effectiveness over guarantees. Therefore، the necessity arose to explore the discretionary power of the administration and the extent of legal security available to the employee at the commencement of investigative procedures، whether in terms of the competent authority، referral procedures، or the consequent effects.

إن دور الحكومة المحلية في تعزيز الأمن القانوني يعد من الموضوعات المهمة لما يشكله الأمن القانوني من أهمية بالغة في استقرار البلاد، لاسيما وأن دور الدولة لم يعد مقتصراً على المهام التقليدية المحدودة كالدفاع، وإقامة العدل، وإدارة السياسة الخارجية، وإنما اتسع دورها اتساعاً كبيراً. وصارت مسئولة عن مواجهة كثير من التحديات، مما حتم على السلطة المركزية التخلي عن بعض سلطاتها للهيئات (الحكومات) المحلية، التي زادت من قناعة المختصين يوما بعد يوم بأنها تشكل الأداة الفعالة لتطوير المجتمع المحلي، لذا فان هذا البحث، سيستعرض (دور الحكومة المحلية في تعزيز الأمن القانوني)، من خلال تحليل الأدوار التي تعتمدها لضمان تعزيز الامن القانوني، ودورها في تعزيز الثقة بين المواطنين والمؤسسات، وكيفية مساهمتها في بناء مجتمع آمن ومستقر. كما سنناقش التحديات التي تواجهها الحكومات المحلية في تحقيق هذا الهدف، وسبل تعزيز فاعليتها في هذا المجال.

Contractual negotiations represent a fundamental stage in the formation of a contract, where the parties exchange information and understandings with the aim of reaching a balanced agreement that achieves the interests of both parties. Contractual negotiations are an effective means of achieving legal security, as they play a vital role in building trust and clarity between the parties, which reduces potential legal disputes. It enhances the stability of transactions and contributes to achieving a stable legal environment.

Legal security is the main pillar to achieve and build sustainable peace in post-conflict societies, especially after these societies were exposed to economic, social and environmental crises in addition to armed conflicts, as the idea of legal security emerged in this field as a means of moving from a state of chaos to a state of order and security and then sustainable peace. This research aims to shed light on the relationship between law security and sustainable peace and to show that legal security is a just and stable system that aims to prevent the occurrence of conflicts and future crises in societies, protect states, try to reach sustainable peace, achieve justice and protect human rights, as the research focuses on reviewing the difficulties and challenges facing legal security in its application in societies that have been exposed to the collapse of the security system due to conflicts and Wars, many issues have been addressed in countries that are still suffering from the collapse of legal security, including Syria and Iraq, and on the other hand, the research dealt with some successful examples that enable legal security to achieve sustainable peace, including Bosnia and Herzegovina and also Rwanda. Achieving sustainable peace through the application of legal security requires the intervention of the rule of law and the role of the international community in supporting legality to achieve transitional justice and stability of societies.

The right to equality is the basic constitutional principle on which all rights and freedoms are based at the present time, and which tops all declarations of universal rights and constitutional charters. Article 1 of the Universal Declaration of Human Rights states (All human beings are born free and equal in dignity and rights) and Article 2 thereof (Everyone is entitled to enjoy all the rights and freedoms set forth in this Declaration, without any discrimination such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, without any distinction between men and women). Legal security is one of the guarantees that ensure the protection of human rights and freedoms, including the right to equality. The right to equality is also a guarantee of the guarantees that achieve legal security and a basic pillar for its existence, like other guarantees such as the non-retroactivity of laws to the past. The relationship is strong and reciprocal between the right to equality and the principle of legal security

Legal security has become a principle of law. It is expected to prevail and include legislation, whether it is primary, ordinary, or subsidiary legislation, as it is an element of widespread trust in society. Destabilizing this principle leads to destabilization and public security, which leads to a lack of confidence among individuals or those holding legal positions in society. Through this research, we show the relationship of administrative control to legal security, how the means of control affect the legal rule, and whether the role played by organizational and individual decisions affects legal security and thus affects the stability and clarity of the legal rule. As for the concept of legality, it merely means conformity between practice and legal rules. Thus, it is merely a normalization of practice or behavior, and the study of this science leads to the development of legal systems and increasing their effectiveness because it reveals the factors that enhance their effectiveness and those that obstruct, weaken, or cancel their effect. This science, as we mentioned, studies the impact of administrative control, its means, and the obstacles on the legal system for legal security. Explaining the mechanisms of its protection in terms of the speed of the latter’s response to the former and the factors affecting that, both negatively and positively. Through our research, we have come up with several proposals, the most important of which may be assigning the task of achieving legal security to the Constitutional Court as an independent, self-contained judicial body that exercises judicial oversight over the constitutionality of laws and regulations, guarantees citizens’ rights and freedoms, and addresses the lack of clear regulatory decisions.

This research is interested in studying the realization of the sustainability of the legal security, by interpreting the contract to remove the ambiguity, vagueness, obscurity and even the contradiction surrounding the clauses of the Contract in the civil law. Therefore, the interpretation of the contract and particularly the maxims of interpreting the contract can play a considerable role in realizing the legal security in the extent of the civil law. The Iraqi civil code No. (40) of 1951 encompasses many maxims of interpreting the contract, the same is true for the French civil code, amended by the new French code of the contract, issued by the ordinance n° 2016-131 dated February 10, 2016 as to the reforms of the law of contract, general regime and proof of obligations. The English common law has also contained the rules of the construction of the contract, aimed at removing ambiguity, vagueness or obscurity surrounding the words, phrases and terms of the contract. The problematization is also embodied by a questions concerning the ascertainment of the importance of the interpretation of the contract in achieving or realizing the sustainability of the legal security within the context of the civil law, by clarifying the obscurity if the contract contains some ambiguous stipulations. Finally the researcher suggests some relevant recommendations to the Iraqi law-maker.