Scholars and Sectarian Strife in Iraq during the Buyid Era Supporters Opponents and the Persecuted

Abstract

The rule of habitual residence is one of the most important connecting factors in private international law, as it helps to determine the place with which a person has a genuine connection, representing the material element of domicile. This criterion takes on particular importance in the absence of the criteria of domicile and nationality, as it is of equal legal weight to them, particularly in matters of legal capacity, which are often governed by personal law in many jurisdictions. Domestication is based on two fundamental elements: residence and settlement. It is a voluntary act that presupposes the existence of a legally valid intention, which means that the intention of a minor or a person lacking legal capacity is insufficient to be taken into account in the choice of domicile, just as with other voluntary acts.

The study considers that, for a person with limited legal capacity, the actual place of residence should be given priority over the legal domicile, as their domicile may differ from their actual place of residence; for example, where a minor resides in one country but is considered to have their legal domicile in another, in accordance with Iraqi legislation. The study also concluded that the legal regulation of issues concerning the place of residence remains inadequate, despite the increasing complexity of private international relations, particularly when the place of residence is adopted as a criterion for the protection of persons with limited legal capacity rather than the criteria of domicile and nationality.

The study also showed that positive or negative conflicts of laws are less likely to arise when place of residence is adopted, as multiple places of residence often lead to the application of the law of the forum as the law of the place of residence; furthermore, the absence of a place of residence for a person lacking legal capacity is almost inconceivable, even in cases of statelessness or lack of domicile