The Role of Considering Private Law as “Constructive” in Solving Its Challenges

The notion that law is a realm of constructive case is considered one of the most fundamental aspects in understanding and addressing legal issues. Despite the high use of this proposition in the legal literature, its dimensions and effects are often ignored. The present article, employing a descriptive and analytical method, seeks to answer the question: What are the effects of the constructive nature of private law, and how can it help address some of the challenges ahead? Constructive and conventional matters, such as those encountered in private law, are assumptions that are constructed and validated to address the needs arising from social life. Ownership, marriage, tortious liability, agency, legal guardianship, etc. are all among these matters. Constructive matters are subject to the will of the “muʿtabir” (someone who grants validity and creates); in other words, their formation, persistence, and survival depend on it. These matters are revocable and change according to societies and perspectives. Accordingly, if the needs that give rise to the formation of validity change and a new interest arises, constructive matters are subject to change. The author’s hypothesis is that many challenges have arisen in private law due to the neglect of the characteristics of constructive matters. This important issue has several reasons; among them are the inappropriate application of certain rules of real matters to constructive matters, disregarding the revocability characteristic of constructive matters, and failing to acknowledge the role of logical and consistent usages as “muʿtabir” (someone who grants validity and creates) in this domain. Research indicates that this approach has the potential to fundamentally resolve many challenges we face in private law without conflicting with Islamic law.