Ninevah Journal for Legal Studies

Research Idea: The idea of the research starts from the study of \\"the general requirement\\" as one of the investigations of the semantics of fundamentalist words, and to explain its applied impact on jurisprudential and legal rulings.
Objective: The research aims to protect the marital bond and the stability of the family by addressing the phenomenon of divorce resulting from coercion and achieving the purposes of Islamic Sharia.
Methodology: The research followed the inductive, analytical, and comparative approach to review the opinions of fundamentalists, jurists and the position of Arab laws.
Results: The research concluded that the fundamental difference in the general statement of the requirement directly contributes to the formulation of the jurisprudential and legal ruling that prevents the imposition of forced divorce due to lack of will and consent.
Conclusion: The research concluded that the sound fundamentalist foundation of the texts protects societal rights and keeps sacred family relations away from the circle of coercion and discord, and that linking the principles of jurisprudence to the contemporary legislative reality contributes to finding scientific and practical solutions to the worsening family problems, and confirms the flexibility of the Sharia and its ability to protect the individual and society from the negative effects of coercive actions under threat..

Research Idea: This study highlights kafā'ah (Competence) in the marriage contract as a fundamental safeguard for protecting the wife's rights and promoting family stability. It examines its role in reducing marital disputes, enhancing harmony between spouses, and safeguarding the wife's legitimate rights, particularly in cases of ʿaḍl (unjust prevention of marriage by a guardian) or when she exercises her right to choose her spouse.
Objective: The study aims to clarify the concept and characteristics of kafā'ah in light of contemporary social changes, determine its juristic and legal nature, and examine whether it constitutes a condition for the validity of the marriage contract, a condition for its binding effect, or neither. It also seeks to identify the party entitled to object to the absence of kafā'ah or to request annulment of the marriage contract.
Methodology: The research adopts a comparative analytical approach by examining the opinions of the five major schools of Islamic jurisprudence and comparing them with the provisions of the Iraqi Personal Status Law No. (188) of 1959 and the Code of Sharīʿah Provisions on Personal Status Matters According to Jaʿfarī Shiʿi Jurisprudence. It further analyzes the juristic and legal issues related to kafā'ah in marriage.
Findings: The study found a broad juristic consensus on the importance of kafā'ah in the husband, while revealing significant differences regarding its constituent characteristics, their number, and its legal characterization. Jurists differed as to whether kafā'ah is a condition for the validity of the marriage contract, a condition for its binding effect, or not a condition at all. They also disagreed regarding the person entitled to object to the absence of kafā'ah.
Conclusion: The study concludes that the concept of kafā'ah is influenced by social changes as well as differences in time and place. Consequently, its constituent characteristics should be reconsidered in a manner that fulfills the objectives of Islamic law (Maqāṣid al-Sharīʿah) while preserving family stability. The study further recommends adopting a legal framework that balances the protection of the wife's rights with respect for her freedom to choose her life partner.

Research Idea: This research examines the legal regulation of visual pollution under Iraqi legislation and assesses the adequacy of the existing legal rules in addressing and combating this phenomenon.
Objective: The study sheds light on the risks and harmful effects of visual pollution by clarifying its concept and legal dimensions, as well as examining the general legal provisions governing visual pollution in accordance with the traditional rules of civil liability and other relevant Iraqi legislation.
Findings: The study uncovered legislative shortcomings in addressing the phenomenon of visual pollution, particularly with regard to determining legal liability, proving environmental harm, and assessing compensation. It also demonstrated a lack of public awareness of the risks associated with visual pollution, as well as practical difficulties in identifying the polluter and ensuring the protection of the rights of affected parties.
Conclusion: The research concludes that effectively combating visual pollution requires a more comprehensive and efficient legal framework capable of clearly defining legal responsibilities and strengthening oversight mechanisms over its causes. It further emphasizes the necessity of adopting appropriate legal mechanisms to address the damages resulting from visual pollution and to ensure adequate compensation for affected parties.

Research Idea: This research examines the concept of “compensation for existential harm” (préjudice existentiel) as one of the emerging concepts within the framework of civil liability. This concept reflects a significant shift in the understanding of harm, extending beyond traditional material and moral damage to encompass a deeper impairment of the very essence of human existence and an individual\'s way of life.
Objective: The research aims to investigate the extent to which existential harm may be recognized as an independent compensable category under the provisions of the Iraqi Civil Code No. 40 of 1951. It also seeks to compare the Iraqi legal position with developments in French civil law, particularly following the 2016 reforms, in order to identify the similarities and differences in the legal treatment of existential harm.
Methodology: The study adopts a comparative analytical approach. Relevant legal texts were examined and critically analyzed, alongside doctrinal opinions and judicial decisions, with particular emphasis on the jurisprudence of the French Court of Cassation. The study also draws upon recent developments in the classification of damages, including the Dintilhac Nomenclature, in order to provide a comprehensive assessment of the subject matter.
Findings: The study demonstrates that existential harm constitutes an advanced manifestation of non-material damage; however, it possesses distinctive characteristics arising from its enduring impact on an individual\'s life and ability to enjoy his or her existence. The findings further reveal that, despite its flexibility, the Iraqi Civil Code No. 40 of 1951 does not readily accommodate this concept through broad judicial interpretation. By contrast, French legal experience has played a more significant role in establishing and consolidating the concept in both legal doctrine and judicial practice.
Conclusion: The research concludes that the fundamental challenge in addressing existential harm lies not in its recognition as a compensable form of damage, but rather in the development of precise criteria for assessing compensation. Such criteria should strike an appropriate balance between the requirements of justice and the principle of legal certainty, thereby ensuring the effective and equitable application of this concept within the sphere of civil liability.

Research Idea: The infringement of Internet users’ data gives rise to two forms of liability: civil liability and criminal liability. However, the scope of this research is limited to civil liability, through examining its concept, scope, and the legal effects resulting from such infringement.
Objective: This research aims to clarify the meaning of infringement of Internet users’ data and its various forms, to emphasize the inviolability of such data and the prohibition of any form of infringement thereof, and to identify the legal consequences resulting from such infringement.
Methodology: This research adopts the analytical method in examining the provisions of the Iraqi Civil Code, as well as other relevant Iraqi legislative texts wherever applicable, in addition to the opinions of legal scholars and judicial decisions, and the legal provisions of other countries, in order to identify the extent of legislative shortcomings and to benefit from the approaches adopted by other legal systems in this regard.
Results: The research reveals that the infringement of Internet users’ data entails both civil and criminal liability, in the absence of a precise legal definition. It further concludes that the basis of civil liability lies in the rules of the general theory of obligations, given that the Iraqi legislator has not included specific provisions in the Civil Code nor enacted a special law regulating such liability.
Conclusion: The research confirms that the infringement of Internet users’ data gives rise to liability requiring legal sanction, particularly civil liability. It also emphasizes the importance of legislative intervention by the Iraqi legislator, either by incorporating specific provisions into the Iraqi Civil Code or by enacting special legislation regulating the liability arising from such infringements.

This research aims to analyze the mechanisms of civil protection afforded to persons with disabilities against exploitation in legal transactions. It provides a comparative analytical study between Iraqi national legislation—specifically the Iraqi Civil Code No. 40 of 1951 (as amended) and the Law on the Care of Minors No. 78 of 1980 (as amended)—and the modern rights-based philosophy enshrined in the Law on the Rights of Persons with Disabilities and Special Needs No. 11 of 2024, as well as the UN Convention on the Rights of Persons with Disabilities (CRPD) 2006.
The research problem centers on how to harmonize the traditional (Guardianship system) based on legal interdiction in the Law on the Care of Minors, with the modern (Support and Empowerment system) based on individual autonomy and the preservation of will under the Law on the Rights of Persons with Disabilities and Special Needs No. 11 of 2024 and the international convention. The study presumes that addressing exploitation requires a rights-based judicial interpretation that balances contractual stability with the protection of consent, while activating civil liability and compensation as deterrent and reparative tools to ensure effective on-ground protection

Research Idea: Joint stock companies are the main pillar of the stock market, as the success of the market depends on their compliance with the laws and instructions for trading, trading, disclosure and depository operations. The importance of the Securities Commission\'s supervision in controlling the activities of these companies, reducing irregularities and enhancing market efficiency is highlighted.
Objective: To explain the role of the Securities Commission in supervising joint stock companies, and the effects of this supervision in protecting investors, enhancing market confidence, and achieving stability and transparency in financial transactions.
Methodology: The researcher adopted the analytical method by studying the legal texts regulating the work of the Securities Commission and Joint Stock Companies, with a comparison in some areas of capital market control.
Results: The study showed that the Iraqi legislator distributed the supervisory jurisdiction between the Securities Commission and the Securities Market, and it was also found that the supervision has direct effects, such as the suspension of trading or the delisting of securities, and indirect effects represented in attracting investors and developing the market, as well as the possibility of arranging civil or criminal liability when committing violations.
Conclusion: The supervision of the Securities Commission represents a fundamental guarantee for the safety of the capital market and the protection of its traders, and contributes to enhancing transparency and trust, developing the performance of shareholding companies, and achieving stability in the market.

Research Idea: The research deals with the scent brand as one of the invisible brands that emerged as a result of the recent development in the field of intellectual property and marketing, which is perceived through senses other than sight. It has become an innovative way to differentiate goods and services to build the brand identity of products.
Objective: The research aims to clarify the concept and importance of the scent trademark, determine its registrability and legal protection, and analyze the position of Iraqi legislation and comparative legislation, especially the United States, the European Union, and the United Arab Emirates, on its recognition and regulation.
Methodology: The research adopted the comparative analytical approach by studying the legal texts regulating trademarks, analyzing jurisprudential opinions and judicial rulings related to the trademark of fragrance while comparing the positions of different legislations regarding their protection.
Results: The research found that the scent trademark has gained increasing importance as an effective means of distinguishing goods and services and their impact on consumers\' decision-making, and it was also found that the Iraqi legislator adopts a broad concept of trademark that allows the inclusion of invisible trademarks, including the smell mark, when it is able to distinguish it.
Conclusion: The research concluded that the scent trademark has the status of a new brand and its regulation and protection by the legislator has become obligatory through the vision of analyzing the reality of Iraqi legislation by understanding the texts and rulings of the jurisdictions of the countries that regulate and protect it.

Research Idea: This study examines the legal criteria adopted by Iraqi law to determine international domicile, whether for a natural person (via their place of residence and center of activities) or a legal entity (via its center of administration or place of business). It also discusses the practical challenges associated with continuous mobility, liquidation, and merger scenarios, in addition to the elected domicile and the modern challenges posed by the shift toward a \"digital domicile,\" along with the consequent difficulties in establishing judicial jurisdiction.
Objective: The research aims to assess the adequacy and practical viability of these legal criteria by comparing them with Arab and international legislations. Ultimately, it seeks to provide a scientific vision for developing the Iraqi legal framework and enhancing legal certainty for individuals and corporate entities. Furthermore, it endeavors to identify the shortcomings within the current legislative framework and propose remedies based on comparative experiences and the provisions of international conventions, ensuring that Iraqi legislation harmonizes with the contemporary legal environment.
Methodology: The study adopts an analytical approach to examine the relevant Iraqi legal provisions, alongside a comparative approach to review Arab and international legislations as well as international treaties, aiming to provide a comprehensive evaluation of the prevailing legal standards.
Results: The findings reveal that Iraqi legislation relies on traditional criteria that are incapable of keeping pace with modern transformations. This inadequacy undermines the precision of establishing jurisdiction and leads to a conflict of laws, particularly concerning corporations and elected domicile, which is compounded by a complete absence of regulatory frameworks for digital domicile.
Conclusion: The research concludes that legislative reform is imperative. Such reform should leverage the standards of the Hague Conventions to unify legal rules and modernize the Iraqi legal system, thereby ensuring alignment with global judicial trends and minimizing international legal disputes.

Research Idea: This study addresses one of the intricate issues within comparative constitutional and administrative law, namely the fundamental transformation in judicial policy and constitutional philosophy regarding the theory of sovereign acts. Traditionally, this theory constituted a shielded domain immune from legality review under the principle of separation of powers. The issue has become particularly evident in light of recent judicial developments during the period (2024–2025), as French administrative courts have begun to restrict this traditional immunity. This raises a fundamental question about the continued legitimacy of exempting sovereign acts from judicial oversight in the context of the growing demands of the rule of law.
Objective: The research aims to trace the judicial shift of French administrative courts towards limiting the immunity granted to sovereign acts, by extending judicial review in cases of exceptional circumstances and in the field of international relations, as well as recognizing the financial liability of the state for damages resulting from such acts. Furthermore, the study seeks to examine the Egyptian and Iraqi experiences as models of curtailing sovereign acts through constitutional entrenchment and the absolute prohibition of shielding administrative acts and decisions from judicial review.
Methodology: The study adopts a descriptive approach by analyzing relevant comparative constitutional and legislative texts, while drawing upon judicial precedents and doctrinal opinions in France, Egypt, and Iraq. It also employs a comparative method to contrast the positions of legislation, judiciary, and doctrine across the three systems.
Results: French administrative courts have established a principle that sovereign acts are no longer an absolute prerogative of authority, but are subject to judicial review whenever they affect individuals’ legal status or violate international humanitarian obligations. This represents a qualitative shift in the standard of review applied to such acts.
Conclusion: The theory of sovereign acts is undergoing profound transformation; it no longer represents an absolute immunity halting judicial oversight, but rather a constitutional obligation inherently subject to judicial review whenever individuals’ legal rights or international humanitarian commitments are at stake. The constitutional entrenchment of the prohibition against shielding administrative acts and decisions, as exemplified in the Egyptian and Iraqi experiences, constitutes the most effective means of ensuring the rule of law and protecting rights from escaping judicial scrutiny. This necessitates a reconsideration of the criteria distinguishing sovereign acts from other administrative acts, based on clear constitutional and substantive standards.

Research Objective: This study aims to elucidate the legal framework of electronic delegation in public administration as one of the most prominent outcomes of digital transformation, and to determine its impact on the legitimacy of administrative decisions. The research problem lies in the legislative and technical gap between traditional delegation rules—based on the personal exercise of authority—and digital authentication mechanisms that rely on encryption keys and algorithms.
Methodology: The study adopts a comparative analytical approach between the Iraqi Electronic Signature Law No. (78) of 2012 and the legal frameworks in Egypt and France, with a focus on the issue of "machine delegation" and the distinction between constrained and generative artificial intelligence.
Findings: The study concludes that electronic delegation, although it does not alter the substantive rules of delegation, has redefined the "element of competence" to become a combination of legal authority and technical capability. It further establishes that the security of the "digital identity" constitutes the cornerstone of decision legitimacy, and that any breach thereof results in an "electronic usurpation of authority," necessitating a shift in the role of the administrative judge from document-based oversight to auditing digital logs and programmatic data.

The binding of interpretation in the jurisprudence of the European Court of Human Rights has gained increasing importance given the pivotal role the Court plays through its dynamic interpretations of the European Convention and its role in harmonizing standards within the European system. In this context, this research provides a comprehensive analysis of the nature of the interpretative impact of judicial rulings, the limits of their binding nature, and the legal and philosophical foundations upon which they are based. It distinguishes this principle from traditional concepts such as res judicata and addresses the challenges to its application amidst tensions between national sovereignty and international obligations, as well as cultural differences. This concept has sparked debate in legal scholarship and state practice regarding the nature and limits of its binding nature, particularly in the absence of an explicit provision in the Convention defining these parameters. The research concludes that this principle has become a key feature of the structural developments and consolidation within the European human rights system. It represents a dynamic and evolving mechanism for ensuring the harmonization of standards. While its binding nature is undeniable, the specifics of this binding nature remain a subject of extensive legal and scholarly debate, reflecting the inherent complexity of the relationship between international and national law.

Research Idea: Water security is a key pillar for regional stability and sustainable development, especially in shared water basins such as the Tigris and Euphrates, which face legal, political, and environmental complexities, in light of the inadequacy of legal frameworks regulating shared waters.
Objective: It aims to clarify the concept of water security sustainability and analyze its obstacles in the Tigris and Euphrates basins, by studying legal, political, economic, and environmental challenges, assessing the adequacy of legal frameworks, and proposing mechanisms to enhance cooperation and equitable use of water. Research Methodology: The descriptive-analytical approach was adopted through the study of relevant legal concepts, the analysis of international and bilateral agreements, the positions of riparian states and the applications of international watercourse law.
Results: The absence of a binding agreement, the difference in legal positions, the impact of conflicts and climate change, and the inadequacy of legal frameworks in achieving balance between the riparian countries. Conclusion: Traditional approaches are no longer enough, which calls for the adoption of modern legal mechanisms based on equity, no-harm and cooperation to ensure sustainable water security

Research Idea: The successful implementation of laws, by considering and responding to the needs of society, does not occur in a vacuum. Rather, it is the fruit and result of adopting a sound legislative policy built upon scientific theoretical foundations that constitute the basis for its success. Our research is based on an analysis of the reality of legislative policy in Iraq, highlighting its shortcomings and its role in reforming laws.
Objective: The research aims to clarify the nature of legislative policy by defining it and distinguishing it from other concepts, as well as outlining the foundations of its construction and the reality of its implementation in Iraq.
Methodology: We adopted a theoretical and analytical approach.
Results: The most important foundations for building an effective legislative policy are adherence to the principle of constitutional legitimacy justice and equality, clarity and transparency in legislative drafting, and consideration of the priority of legislation and international agreements in the enactment of laws.
Conclusion: The Iraqi reality has witnessed the absence of a sound legislative policy in the legislation enacted since 2005. The principle of integration and consistency among laws has been lost, and many important laws have disappeared from the legislative arena. All this legal deterioration requires reform.

Research Idea: This study examines the impact of alternative criminal sanctions as a modern model of criminal punishment, focusing on their capacity to achieve deterrence while contributing to the reduction of the financial burdens and economic costs borne by the State.
Objective: The study aims to clarify the concept, nature, and legal characteristics of alternative sanctions, identify their legal foundations, and assess their effectiveness in achieving deterrence and rehabilitation, as well as their role in reducing financial costs.
Methodology: The research adopts a descriptive-analytical approach by examining the legal nature of alternative sanctions and analyzing their legal provisions in order to derive accurate and scientifically grounded findings.
Findings: The evolution of the philosophy of criminalization and punishment has led to the adoption of modern criminal policies that seek more effective alternatives to traditional sanctions. Such alternatives are intended to achieve the objectives of deterrence and rehabilitation while responding to contemporary social and economic developments. Consequently, alternative sanctions have emerged as one of the most significant trends in modern criminal justice policy.
Conclusion: Alternative sanctions represent a contemporary model of criminal punishment that replaces certain custodial penalties with measures such as community service, fines, and electronic monitoring. These sanctions contribute to balancing the protection of society with respect for human rights, mitigating the adverse effects of short-term imprisonment, reducing financial and administrative burdens, and enhancing the overall efficiency of criminal justice policy.

This commentary examines the legislative drafting of Article (146/1) of the Iraqi Civil Code, arguing that the Iraqi legislator conflated the concepts of the enforceability and binding force of contracts despite their difference in legal nature and effect, thereby undermining the technical and legal precision of the provision. The commentary further explains that an enforceable contract may be either binding or non-binding, as exemplified by agency and deposit contracts, and that such conflation adversely affects the theoretical structure of contract theory and the terminological accuracy of legal texts. The commentary concludes by proposing an amendment to the wording of the provision in a manner consistent with the principle of the binding force of contracts and the juristic classification of contracts under Iraqi civil law.