Making Sense of Judicial Remedies in Saudi Arabia: An Insider View

• Author: Saud Alhassan Saud Abdulaziz Al Saud
• Position: KoGuan Law School Shanghai Jiao Tong University, China, Ministry of Interior Affairs, Saudi Arabia
• Pages: 127-146

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2014 e Institute for Migrant Rights Press

maKing sEnsE of JudiCial rEmEdiEs

in saudi araBia

an insidEr viEw

Saud Alhassan Saud Abdulaziz Al Saud

KoGuan Law School Shanghai Jiao Tong University, China

Ministry of Interior Aairs, Saudi Arabia

E-mail: h.r.h_saud@hotmail.com

In the United States legal system, judges have a number of remedies that they

can resort to when compared to judges in Islamic law. e reason that Islamic

law judges have less remedies could be due to the fact that remedies must satisfy

the Islamic doctrines. is is not the same case in regards to the remedies that

are provided to Judges under American Law. It is, therefore, quite imperative

that Muslims are guided by shari’a (Islamic law) in their contractual remedies.

is reliance on religious doctrines has made it quite dicult to enter into a

contractual relationship between a Muslim and a non-Muslim. However, these

contracts are executed; the non-Muslim party must be compliant to all the rem-

edies that are available if one of the parties breaches the contract.

According to this model, Muslims believe in the notion of trust between the

contracting parties. ey expect the person they are dealing with to be a trust-

worthy person who will, therefore, perform his or her contractual obligations

without breaching the contract, and without any failure. As a consequence, the

person who fails to follow the terms of the contract is deemed to have not only

breached the contract terms, but the trust of the other party as well. is is not

similar to contracts executed under American Law, whereby a person is only

held responsible for the breach of contract. In addition to that, Muslim commu-

nities may have guarantors when entering into contracts.

In this paper I comment on remedies available to judges under the Sau-

di Arabian/Islamic legal system in comparison to the American/common law

judges. rough this analysis I will prove that although the origin of the law may

dier, remedies in contractual agreements available to judges within both legal

systems are very similar with a presence of very slight dierences. is paper

aims to bridge the gap between both legal systems, and dispel the fear of being

III Indonesian Journal of International & Comparative Law 127-46 (January 2016)

128

Al Saud

bound to the rules of Islamic law in contractual agreements. To date, this may be

one of a very limited number of articles addressing this topic. is paper could

prove to be very important in providing a clear understanding of international

contractual agreements with Islamic law countries, and/or parties within Islam-

ic law countries.

Keywords: Contract Law, Islamic Legal Remedies, Comparative Law, Saudi Arabia

Legal System, Islamic Judge.

I. BACKGROUND

A. Saudi Arabia Legal System

According to conventional wisdom, the Saudi Arabian legal system is

outwardly religious in that it is based upon Islamic law.1 However, this

simplistic view is misleading.2 Actually, the legal system in Saudi Ara-

bia is a unique blend of both shari’a law (Islamic law) and western-in-

spired civil law. To be specic, the legal system in Saudi Arabia is a civil

law system inspired by both shari’a law as well as Egyptian and French

civil law. e introduction of civil law cannot be separated from “the

development of the Saudi Council of Ministers in 1958” which led to

“a massive introduction of modern laws and regulations into the Sau-

di legal system covering various areas in the elds of both public and

private law.”3 e most notable example is the 1956 Saudi Corporation

Law which is strongly emulates French company law.4 Likewise, the

area of criminal and public law in general have also borrowed from

1. See e.g., F E. V, I L  L S: S  S

A (2000) (noting that “[t]he law of Saudi Arabia is the Islamic Shari’a,

meaning divine law.”).

2. Perhaps one main reason for this confusion is due to the fact that “Saudi Ara-

bia is a close and complex country, which makes it dicult to gain access to

extensive and recent data about the legal system and the Saudi society at large.”

Esther van Eijk, Sharia and National Law in Saudi Arabia, in S I-

: F G O  S A  I 139

(Jan Michiel Otto ed., 2010).

3. Abdullah F. Ansary, A Brief Overview of the Saudi Arabian Legal System, G-

L (July 2008), http://www.nyulawglobal.org/globalex/Saudi_Arabia.html.

4. Id.