What is Missing in Libyan Civil law and Islamic Jurisprudence A comparative Study

Abstract

The comparative study aimed to identify the status and provisions of missing person and absent person in both Libyan Civil Code as well as Islamic jurisprudence, which constitutes the main source of modern private law in Libya, along with some references to other national legislations. Opinions and views of Islamic and civil law jurists, relevant private laws as well as courts' rulings were all taken into account.

The study was divided into four parts, each comprised of two sections. Part 1 scrutinized thoroughly the concepts of "missing person" and "absent person", where the first section discussed the various definitions of "missing person" and "absent person" in both civil law and military law, while the second one addressed the different types of absence and missing.

Part 2 discussed the period that is legally required to rule that a missing person has been dead. The first section laid out the views adopted by Maliki and Ibadi, the main two Sunni schools of law in Libya, while the second one discussed contemporary reasoning and thoughts regarding the sit tight dated for reappearance/death of missing person.

Part 3 discussed criteria related to the legal status of missing/absent person. The first section dealt with criteria related to missing/absence cases where demise is more likely than existence, while the second one dealt with criteria related to missing/absence cases where existence is more likely than demise.

Finally, Part 4 laid out some matters and measures that must be adopted in order to link missing individuals with civil responsibility when it comes to natural disasters (e.g. Derna floods). The study tackled the limits of discretionary power in case of absence of legal provisions as well as the subsequent effects