MIsan Journal of Comparative Legal Studies

The pastoral function of punishment A comparative study

Saeed Kadhim Jasim — 2026-02-10

The conclusion of the research concluded that the caring function of punishment was limited to some punishments، and within the scope of custodial punishments، it was concentrated in the circle of custodial punishments with a relatively reasonable duration. This long punishment would exhaust the entire prisoner and make his will irreparable، so psychological despair would settle deep in his feelings and take him as a source. It is very difficult to confront it with available and possible rehabilitation methods. In addition، the nature of some of the criminal acts dealt with by the Iraqi penal legislator in the effective Iraqi Penal Code was characterized by their lack of criminal seriousness and that they are considered criminal acts that can be directed to administrative disciplinary responsibility. It is sufficient to monitor an administrative penalty for it، which requires removing it from the circle of punitive criminalization and introducing it into the circle of administrative criminalization in order to facilitate the course of criminal justice and reduce the phenomenon of punitive inflation، and to ensure that the punishment only faces those criminal acts that non-punitive means are unable to confront and combat

The decline of the role of will in the Contract for the transportation of goods (A comparative analytical legal study)

Ahmed Abdul Salam Kazem — 2026-02-10

The legislator intervenes in how contracts are organized, and this organization is focused on the person of the contracting party. The contracting party is not free to choose whom he wants to contract with; rather, he must contract with the person appointed by the public authority, such as those who exercise a legal or de facto monopoly. Most jurisprudence believes that the carrier's liability is contractual. However, does this view hold up against the legislator's approach to establishing rules regulating the transport contract with the aim of achieving a fair balance between the obligations of the two parties to the transport contract and prioritizing the legal relationship over the contractual relationship, based on the belief in the state's duty to protect the weaker party in the contractual relationship and to oversee legal relationships?

Hence, some jurisprudence believes that the carrier's liability in a contract for the transport of goods is tortious liability based on the concept of damage. However, this argument cannot be relied upon because the carrier's obligation to guarantee safety arose due to the conclusion of the transport contract, making it impossible to apply it independently of it, especially since the current Iraqi Transport Law has defined the time frame. Hence, some jurisprudence considers that the carrier’s liability in a contract for the carriage of goods is a tortious liability based on the concept of damage. However, this statement cannot be relied upon because the carrier’s obligation to guarantee safety arose due to the conclusion of the contract for carriage, so it is impossible to apply it independently of it, especially since the current Iraqi transport law has specified time range, in addition to the fact that there is no justification for considering the carrier’s liability a tortious liability even if it is based on his fraud or gross error, because compensation for damage according to the general rules in the cases of fraud and gross error includes what was expected or unexpected, as it is not limited to the expected damage only, and thus does not necessarily entail a change in the nature of the contractual liability to become a tortious liability.

It is evident from the above that the carrier’s liability is presumed, as contractual error is established even if the carrier’s failure to fulfil his obligation arises from an external cause. However, the existence of the external cause severs the causal relationship between the error and the damage, so liability is not established

The Responsibility of Social Media Platforms to Protect Consumers ( A Comparative Legal Study)

Roua’a Ali Atiyah — 2026-02-10

The issue of the responsibility of social media platforms to protect consumers is one of the important and modern topics that are gaining increasing importance in light of the tremendous development of technology and the spread of the use of digital platforms around the world and with the increasing dependence of individuals and companies on social media platforms for shopping, marketing and daily interaction purposes Legal challenges arise related to protecting consumers from violations or what is published on social media platforms, such as manipulation of information, violation of privacy, unfair commercial exploitation, and many other things such as the spread of false information that leads to suicide or murder, These platforms have become a state within a state, and the lack of legal regulation represents the biggest challenge to the government as a result of the damage that occurs as a result of the news and falsification of facts that are circulated on social media platforms through them, and thus leads to the emergence of legal responsibility on social media platforms and applications. In light of this, the research discusses the challenges facing the application of current legislation, including cross-border digital platforms and the difficulty of monitoring compliance with laws in real time, as well as the issues of digital privacy, illegal use of personal data and electronic fraud as one of the most prominent risks to consumers. The research also depends on the study and analysis of the legal framework that regulates the responsibility of social media platforms to protect consumers, by comparing various international laws and legislations such as Iraqi laws, Arab and American laws, and the laws of the Emirates, Jordan and Egypt to identify similarities and differences in these legislations and to determine their effectiveness in protecting consumers in the digital space

Compensation of the Fetus for Reflected Damage (A Comparative Study)

Hussam Hadi Mullah — 2026-02-10

This study addresses the issue of whether a fetus is entitled to compensation for reflexive (or consequential) harm—namely, harm that materializes after birth in the form of either moral damage (such as grief resulting from the loss of a parent) or material damage (such as the loss of a financial provider). The findings indicate that comparative legal systems do not explicitly recognize this right; however, it may be justified based on general legal principles, and a significant body of legal scholarship supports the notion.From a jurisprudential standpoint, the French Court of Cassation has upheld the fetus’s right to such compensation, while Egyptian jurisprudence remains divided on the matter. In Iraq, although rulings are rare, a number of decisions have affirmed the fetus’s right to compensation for reflexive harm. Similar rulings have also been observed in the courts of other Arab countries.Accordingly, the study recommends amending relevant Iraqi legislation to allow compensation for reflexive harm suffered by the fetus and urges the Iraqi judiciary to adopt a consistent and settled position that affirms this right

The Limits and Safeguards of Disciplinary Liability of the Public Employee between Iraq and Egypt – A Comparative Study

Ayat Abdulrasool Shakir — 2026-02-10

This study examines the legal system governing disciplinary liability of public employees in both Iraq and Egypt with a particular focus on the guarantees provided to ensure fairness and prevent arbitrary sanctions. In Iraq the framework of disciplinary responsibility is defined through specific legal provisions that determine the types of violations and identify the competent authorities empowered to impose disciplinary sanctions. Alongside this framework, the law establishes guarantees for the employee under investigation, including the right of defense, access to the case file and the ability to challenge disciplinary decisions before judicial bodies.

Similarly the Egyptian legal system regulates disciplinary liability through a set of legislative provisions that classify violations and specify the authorities competent to impose penalties. At the same time it ensures fundamental guarantees for public employees most notably the right of defense, the principle of impartiality during disciplinary proceedings, and the right to appeal before the State Council. By comparing both systems, the study highlights the convergence and divergence between Iraq and Egypt in balancing administrative authority with the rights of public officials

The Limits of Using Technological Development in Administrative Activities in Iraq: A Comparative Study

Khalid Kazem Ouda — 2026-02-10

his research aims to analyze the legal, regulatory, technical, human, and cybersecurity limitations facing public administration in Iraq when employing technological advancements in administrative work, amid the growing shift toward digital government. The study examines the Iraqi legislative framework—particularly the Electronic Signature and Electronic Transactions Law No. 78 of 2012—highlighting the legislative gaps concerning data protection, the legal validity of electronic documents, and institutional integration between government entities. It also evaluates the technical and operational infrastructure, the limitations of existing digital systems, and the weak interoperability between governmental databases, and how these issues affect service quality, transparency, and continuity. The research further addresses human resources and institutional culture, focusing on the challenges faced by public employees in acquiring digital competencies due to the absence of mandatory national training pathways. The study also explores the cybersecurity environment in Iraq, emphasizing the absence of a unified national cybersecurity law and the risks this poses to governmental data and citizen rights. Comparative analysis with leading Arab legislative experiences—such as those of the UAE, Saudi Arabia, Morocco, Egypt, and Jordan—was conducted to extract applicable best practices. The research concludes that effective digital transformation in Iraq requires comprehensive legal and institutional reform that integrates legislation, technology, human capabilities, and cybersecurity into a unified and coherent framework

Role of the Constitutional Judiciary in Guarantee the Independence of Higher Press and Media Bodies (A Comparative Study)

Maha Bahjat Younis — 2026-02-10

Judicial oversight of the independence of the Supreme Councils for the Press and Media in Arab countries is of great importance in the contemporary political and legal context. These councils are vital bodies that contribute to regulating media work and ensuring its independence, which often makes them the focus of attention of constitutional courts.

Some Supreme Councils for the Press and Media suffer from weak legal or organizational structures, making them vulnerable to domination by executive or legislative authorities. This is where the importance of constitutional courts as a guarantor of independence becomes apparent. They can serve as a final bulwark protecting the councils from any attempts to undermine their role or influence their decisions. By issuing constitutional rulings obligating all authorities to respect the independence of these councils, constitutional courts foster an environment conducive to press and media freedom

The Role of Income Tax in Financing the Public Budget in Iraq and Algeria: A Comparative Study

Wissam Dries Fateen — 2026-02-10

The tax system is considered one of the principal instruments adopted by states to achieve fiscal balance and to direct resources toward financing public expenditures. Income tax, in particular, acquires exceptional importance as it represents a direct reflection of the state’s capacity to mobilize its domestic resources, independently of the fluctuations of rent-based revenues.

This research aims to examine the role of income tax in financing the public budget in Iraq and Algeria, through an analysis of the legal and financial frameworks governing this tax, and by comparing its impact in enhancing public revenues and reducing reliance on oil-derived income. The study also addresses the similarities and differences between the Iraqi and Algerian experiences in the field of tax policy, while highlighting the challenges facing the activation of income tax as a financing tool, and assessing its implications for tax justice and economic stability.

The findings reveal that weak legislative and executive structures, in addition to tax evasion, constitute the most significant obstacles to strengthening the role of income tax in both countries. This necessitates

Towards Improving Legislative Formulation in the Parliamentary SystemA Comparative Study)

Yasir Taha Yaseen — 2026-02-10

Legislation undergoes several stages, the first of which is addressing a subject for the purpose of organizing it. This is followed by a stage of identifying and defining the needs and interests of society concerning this subject. Finally, the last stage involves transforming the outcomes of the identification process into legal texts and rules. In this type of legal drafting, it is essential that the words used are interconnected in their meanings, and that terms and formulations indicating obligation or prohibition are employed, to ensure that the intent of the text is clear and unequivocal, free from doubt and ambiguity.

Legislative drafting is a specialized art that has its own principles, rules, and style, which can only be practiced by a person who is knowledgeable in legislative drafting. Therefore, it requires the presence of a concerned and specialized body that utilizes the rules of legal drafting in preparing projects, alongside supporting bodies with the legislative institution.

The Iraqi legislation generally suffers from several gaps and issues; therefore, it requires the efforts of the legislative authority to organize the laws, restructure them, unify what needs to be unified, align what is contradictory, and clarify what is ambiguous. This necessitates the cooperation of the leadership of the legislative authority, parliamentary committees, and the parliamentary legislation department, in collaboration with the specialized bodies for codification, compilation, and review

The crime of forging academic certificates in light of the criminal policy of the Iraqi legislator (A comparative study)

Khalid Hussein Ali — 2026-02-10

The subject of this study revolves around knowing the position of the Iraqi criminal legislator and his role in dealing with the illegal use of higher academic degrees. Through this study, the researcher aimed to determine the reality of this role and the impact of his attempts to limit this phenomenon, and to what extent the Iraqi legislator agreed to providing a criminal cover for academic certificates, despite the increase in bodies granting fake certificates without there being the possibility of knowing their number or how they work. What caught my attention is that the Iraqi legislator did not clarify what is considered within the concept of academic certificates and what is considered otherwise in Article (288) of the Code . A. Iraqi, Therefore, it was necessary to draw the dividing line between academic certificates and other documents according to the legal conditions that are similar to them, despite the presence of many gaps and shortcomings in the legal texts that provide criminal protection for certificates in Iraqi law. Therefore, we work through our study to fill these gaps and avoid this. By proposing legal texts that are better than they are now

The scope of the civil judge's authority in assessing the validity of written evidence (a comparative study)

Zaman Fawzi Gatea — 2026-02-10

Judicial proof aims to protect rights and ensure that their owners enjoy them. The theory of proof is one of the most important theories applied in courts, as it is not permissible to claim a right without proving it, otherwise it becomes null and void and thus devoid of any value. Among the tools of proof established by the legislature are written evidence, whether formal or ordinary. The role of the judge in proof varies. Regarding the legal rule, the judge is responsible for proving its existence, while the burden of proving facts falls on the litigants. Evidence varies in its legal value. Some evidence is sufficient on its own to prove the disputed right, as the legislature has given it full evidential weight. There is evidence that is not sufficient on its own to prove the fact, as the legislature has not given it full evidential weight. This is due to the failure to provide the evidence in a timely manner, rendering it incomplete and unreliable in issuing a ruling. This has led the legislature to grant the judge a positive role in the case. Through this research, we will examine the scope of the judge's discretionary power in assessing the validity of written evidence

Units of the federal state and the extent of their jurisdiction to conclude international agreements (acomparative study)

Qasim Fahd Khnyab — 2026-02-10

The research touched on the procedures followed in the conclusion of international agreements of the federal states, which start with; negotiation and signing procedures, and then ratification, and then the final form of the agreement, which represents the final and the implementation of the enforcement by the federal authority under international agreements and constitutional provisions, and to be the agreement is legally valid in accordance with rules of international law. Also, under the federal state, the situation varies with the federal government and the government and is federal units, Federal and civil agreements have a certain level of responsibility and functions, the state and the federal state are sovereigns alone, according to the rules of international rule of law, to the effect that the federal state has the right to; regulate its internal and external affairs and relations, as it enjoys a legal personality. International, and it has the right to and to practice legal measures of an international nature, but when the federal units are interfering with the practice of some international points due to the development of international relations, here the trend has changed, and the international units are genuinely involved in the practice of international relations, which where; the competence of the federal authority, and this intervention has arisen as a question about the legal basis for the competence of; federal units in concluding international agreements, especially if the person who exercises the conclusion of international agreements shall have the international legal personality, while international conventions are the way to international legislation, law and law to find the legal rules are binding, the federal state or federal units must respect its concluding in international conventions that it conducts with other countries, and that the result of the research is to reach the legal basis of federal units in the conclusion of international conventions based on the federal constitution. To conclude these agreements, as these units do not exercise their own independent competence in the conclusions of international conventions, they must obtain ratification by the federal Authority and the prior approval of the

Legislative treatment of parental disobedience in comparative criminal legislation

Maitham Falih Hussein — 2026-02-10

The position of penal legislation has not been consistent in its stance on protecting parents from harmful actions and words committed by their children. Between relying solely on general substantive rules in criminalizing assault against persons and considering it an aggravating circumstance if the victim is a relative of the perpetrator, and legislative intervention to protect elderly or disabled persons from criminal assault, the Iraqi criminal legislator has charted a clear course by criminalizing acts of filial impiety. This was due to the issuance of the Penal Code Amendment Law No. (10) of 2024, which was based primarily on amending Article (384) of the Penal Code. Hence this study came to identify the crime of disobedience to parents. Hence, this study came to identify the crime of disobedience to parents, and to explain its definition, elements, and punishments by comparing it with the position of comparative laws, taking the analytical and comparative approaches as a means to arrive at the most important results and proposals. This is in order to strengthen legislative intervention in order to provide effective criminal protection for the interests of parents from the risks of assault on them by direct relatives within the family