نحو نظرة تجديدية معاصرة لتفعيل مبادئ الاجتهاد القضائي في تقنين أحكام الأسرة: الزواج أنموذجا

Abstract EN

Jurisprudence is one of the most important sources on which the judge relies to give legal solutions, especially in the event of legislative shortcomings and ambiguity or absence of texts at all.

it is well known that while the legislation is general and abstract, jurisprudence is characterized by flexibility, appropriateness, and the ability to adapt to facts.

therefore, it is necessary to reconsider the general view of the text's priority over the discretionary opinion; especiallysince jurisprudence was the main source for dealing with family disputes before issuing a particular law for it.

in this study, we will try to: present a conception that invalidates the theory of no jurisprudence with the text resource, as it is no longer keeping pace with societal transformations; and to reach the provision of jurisprudence as an explanatory source of priority, like the legal text in enlightening the judiciary and motivating the legislator to incorporates its outputs within many texts that need to be reviewed in issues related to marriage and divorce and their effects.