الأصول الفكرية للقانون المدني العراقي ومقتضيات المنطق القانوني

Abstract

If

we trace the historical roots of the Iraqi Civil Code and how it was drafted and who contributed to its drafting, we find that most of the content of its articles goes back either to Hanafi thought through considering the Majallat al-Ahkam al-Adliya as one of its sources. This Majalla took the jurisprudential rules from the book (al-Ashbah wa al-Naza’ir) by Ibn Nujaym al-Misri, and what is in the Majalla in general is taken from the books of Zahir al-Riwayah in the Hanafi school of thought. Consequently, it was influenced by the bearers of this thought, such as al-Shaibani, Abu Yusuf..., and the foundations and jurisprudence of this thought go back to opinion and analogy., or to French thought through its influence on Egyptian civil law, which was influenced by French civil law. Consequently, it was influenced and its content by the bearers of this thought, such as al-Sanhuri and Lambert. The foundations of this legal thought go back to French customs and Roman law egal logic rejects this at the level of content and formulation. As for the first level, with regard to Hanafi thought, legal logic requires that the law be a product of the social environment and therefore must be in accordance with the prevailing social fabric. Hanafi jurisprudence is not familiar to most Iraqi society, and legal logic requires a comparative study between the various schools of thought and the selection of the most appropriate school of thought that is compatible with the prevailing social fabric. As for French thought, Iraqi society is not familiar with it in its entirety or in detail. There is no doubt that Islamic legal thought is deeper, loftier and more appropriate than what is mentioned in the thought that goes back to the culture of Western peoples, especially the French.As for the level of formulation, the legislator imported it from Western laws such as the French-Italian project and the Swiss legislation... and legal logic requires that both the content and the formulation be from the same environment and within the framework of the culture of the social fabric that is to be regulated, and not be distorted and patched up in its substance and formulation from here and there.The research was divided in its structure and scientific plan into two sections: the first on the intellectual origins of Iraqi civil law (Hanafi and French), and the second on the requirements of legal logic (content and formulation). For this purpose, the researcher used 38 scientific sources in his research.