Legitimacy and Methods of Judicial Review in Islamic Law and Libyan Positive Law

Abstract

One who observes Islamic law in its entirety will not understand the legitimacy of an action unless he understands its legislative basis. The same can be said for positive law. Therefore, one who looks into the law of a given matter must have the capability to visualize it. This is what motivates us to study the root of the issue of the principle of criminalization to litigation and sentencing and enforcement in order to clarify the wisdom underlying the legitimacy of judicial review. Herein lies the research problem. This study aims to present a clear view about the basis and methods of judicial review in Islamic law and Libyan positive law, as well as explaining the entities responsible for judicial review in Islamic law and Libyan positive law. This study employed the inductive approach and the analytical descriptive method. Every issue related to the study was scrutinized and compiled from various references of Islamic law and Libyan positive law to form the basis of the study. The data were analyzed to sufficiently answer the research problem. The study found important conclusions and recommendations, among them: the legitimacy of judicial review in Islamic law and positive law comes back to the fundamental reasons prohibiting crime. The constitutional basis of judicial review is the constitutional recognition of the right to litigation and legal recourse, as well as the implementation of the two-level litigation principle. This is the approach taken by the Libyan Constitutional Declaration.