What are the principles of justice that the judge should implement in case there is not text?

Abstract

This research studies the principles of justice concept as it is found in the books of Arabic and jurisprudence, as a legal, jurisprudent and philosophical term. This definition aims to introduce the importance of those principles in judicial work and the judge's obligation to employ and implement these principles to conclude fair judgments in case there is no text which organizes the objective relationship in the dispute before the court in spite there is no a clearly expressed text of these principles. The judge has to research and deduce those principles from different Islamic and legal sciences. One of the reasons that has made the study of the principles of justice difficult and complicated is that they are not written in spite of a lot of indication to them in the books of Islamic jurisprudence and the books of law and philosophy. They are studied from the aspects of importance and obligation to follow in all dealings. In justice, the judge should apply the principles of justice in case there is no legal text that organizes the legal relationship which the dispute rises from or for or to be presented to the court to decide. The legislator, in some legal texts such as the Yemeni Civil Law, Article (1), indicates that the judge is obligated to implement the principles of justice. It is noticed that those principles are unwritten in a law or in any book of jurisprudence or philosophy but they are explained for their importance or as a description of someone as a figure of justice or as one of their manifestation. Therefor we find a lot of judges ignore the principles of justice or where to find and in which book he will get. The judge may face difficulties in findings those principles because they are connected to human behavior and morals and they are derived from human identity. The judge will find the principles of justice by his study of the fundamentals of Islamic law and in the books of Islamic jurisprudence, law and philosophy, and he will link them to his moral qualities. If the judge enjoys high morals, honesty, and truthfulness, and such, it will be easier for him to understand those principles after finding them and implementing them in solving the disputes that are presented before him in the judgment session (the court). However, if he does not enjoy those qualities or some of them, he will face difficulties in defining and getting those principles and apply them because justice is linked to human traits and behavior and his morals and because the judge is a person who is selected to for the position of judgment for those good characteristics . This research studies the characteristics that the judge should enjoy as, at first, he is human, then he is a judge who works for judgment between people and decides their disputes in justice. The research also studies the principles of justice that we have reached by a study and which are written in order to be known by judges to depend on when they settle disputes in case there is no legal text that should be implemented . Therefore, this research is divided into two sections in addition to the introduction, a conclusion, and a list of references. The two sections are entitled as follows: Section one: The characteristics that should be enjoyed by the judge, as they are a manifestation of justice and morals . Section two: The principles of justice that the judge should adhere to implement to settle disputes presented to the judiciary .