The Legitimacy of Applying the Jurisprudential Maxim “The Appellant May Not be Harmed by His Appeal” in Islamic Law and Libyan Positive Law

Abstract

Following the major political incidents occurring in Libya in the last decade of the century and development in every aspect after the Libyan revolution in 2011, its legislations have developed, and many of them have changed. The research problem lies in the disagreements between the Libyan legislation that regulates the right to appeal by cassation and Islamic principles regulating this right. The study also discusses the significance of the procedural policy, whose shortcomings have prejudiced the guarantees of the maxim “the appellant may not be harmed by his appeal”. This study aims to highlight the concept and legitimacy of applying the maxim “the appellant may not be harmed by his appeal” in Islamic law and Libyan positive law, as well as clarifying whether this maxim may be implemented in ḥudud cases. This study employed the analytical descriptive method, combining the understanding of the legitimacy of applying jurisprudential maxim in Islamic law and Libyan positive law with the goal of producing an integrated scholarly description of “the appellant may not be harmed by his appeal”. The researcher compared the analyzed issues to show the points of agreements and differences between Islamic law and positive law and to achieve an optimal solution that corresponds to current development in legislation policy in order to apply Islamic jurisprudential maxims. The study concluded several findings, among them: it is not possible to apply the maxim “the appellant may not be harmed by his appeal” on a broader scale in Islamic law, unlike the case in positive law. This is because the cassation of a final and correct judicial judgment is not allowed in Islamic law. There is no Shariʿah barrier against the application of the maxim “the appellant may not be harmed by his appeal” in taʿzir cases, wherein the judge has the discretion to determine the sentence.