‘Jurisprudential And Legal Adaptation’
Written and analyzed By : Dr. Abbas AL-Salman
University of Karbala/Center for Strategic Studies
Department of Legal Studies
0ct-2024
Center for Strategic Studies/University of Karbala
Translated By.
Assistant Lecturer : Atheer Makki Al-Shammary
Atheer.m@uokerbala.edu.iq
The term ” adaptation ” is a specialized term in law, fluctuating between more than one meaning for those with general specialization and gradually increasing as we delve into the precise specialization, which makes it uniquely distinctive. Perhaps the reason for this is due to what falls under it, and in addition to that, its use is appropriate to its place. Specialists say: adaptation is determining the correct legal description of the facts, or the action to link a specific legal issue, in preparation for determining the law to which the dispute is subject. This is in relationships that include a foreign element, known as (private international relations, while the term ” adaptation ” itself is used for facts, is considered one of the challenges facing the legal professional, and is an urgent problem that imposes itself on the lawyer, judge, investigator, and even legal consulting firms in all their cases. As for the investigator, after recording the complainant’s statement, he will help the court to accurately write the facts, adjust his writing of the facts, and record them in the investigation papers according to the texts of the law, which explains to us the importance of adaptation for the investigator, as incorrect adaptation leads to an error in applying the law. While we find the qualification for the judge, when considering the dispute before him, he tries to look at the group of elements presented before him, and then he gives these facts a legal description, which applies to one of the articles of the law.
The intended adaptation in this article is the general adaptation, that is, the one that does not stop at the limit of what is related to private law, or what is meant by it in private international law, but rather we mean by adaptation in this article, the adaptation of facts in general, their concept, and their philosophy in philosophical essences in general, and it becomes more entrenched the more we say in general from the concept of adaptation, as the matter expands to the sciences and rolls down to reach the special concepts related to the science of law, perhaps we find that in the folds of the law in general in the scattered amount of jurisprudence, legislation, and judiciary, and examples of that are the decisions of the first-degree courts, or the administrative judiciary, or the higher judiciary represented by the Court of Cassation and the Court of Cassation, where their legal adaptations are characterized by accuracy, and examples of that are last year’s decision related to the transformation of the adaptation by the decision of beating leading to death in 2023, according to Article 211 of the Penal Code No. 111 of 1969 as amended.
In conclusion as they say the term “adaptations” in private law was mentioned in a special concept in the rules of private international law, and perhaps this specificity is related to Iraqi and comparative law, and specifically it was mentioned in Iraqi law in Civil Law No. 40 of 1951 as amended, specifically Article 17 of the aforementioned law, but this article was related to the attribution of facts to a law to govern them. As for the philosophy of law, we find that what is meant by adaptations is the subjective dimension in the term presented in jurisprudence, judiciary, or law, and its dimensions are found in the subjective or reciprocal philosophy, not the ideal philosophy. This subject is one of the subjective aspects of law that relates it to the origin of the emergence of law absolutely, from the philosophy of facts to the philosophy of elements, until we reach the achievement of the desired justice in society, to organize it in a manner that is consistent with the will of God.
Article link.