Legal Uncertainty and the Effect of Legal Duality on the Legal System of Saudi Arabia

Abstract

The legal system of Saudi Arabia suffers from a considerable legal uncertainty in the form and content of state laws because of the duality within the legal system arising from applying both uncodified Sharia according to Hanbali school of Fiqh and laws enacted by state. This application created duality within the legal system of Saudi Arabia and led to uncertainty. Research reveals two legal systems in Saudi Arabia: one based on Hanbali School of Fiqh, and the other based on laws issued under the authority of the King, which is called Nizam (singular) and Al-Anzimah (plural). In the scope of theory and application, this study aims to explore whether the coexistence of these two legal systems led to the existence of duality and legal uncertainty in the legal system of Saudi Arabia. This study will focus on the period of formation of the legal system of Saudi Arabia since the establishment of the state. Building on this current work to the determination of the cause of the legal uncertainty, this study asks: (1) To what extent does the potential of “the existence” of legal uncertainty in Hanbali School of Fiqh affect “the existence” of legal uncertainty in Saudi legal system? and (2) whether the mechanisms by which the legal system of Saudi Arabia were formed, from the establishment period to the present, led to the dualism of the legal system? In order to track the problem of legal uncertainty in the legal system of Saudi Arabia, this study examines the existence of the legal uncertainty in uncodified Sharia based on Hanbali School of Fiqh and in the Nizam as follows: In Hanbali School of Fiqh Rules, it tracks the existence of the legal uncertainty as follows: 1. In rules from the main resources of the Hanbali School of Fiqh rules: a. The Sharia rules in the Quran, which is the first main resource of the rules of the Hanbali School of Fiqh. b. The Sharia rules in the Sunnah, which is the second main resource of the rules of the Hanbali School of Fiqh. 2. In the secondary resource of the rules of the Hanbali School of Fiqh: a. By tracking the stages of the historical development of the fiqh. b. By Tracking Ijma (consensus) and other tools as an instrument of making rules from Sharia rules. In the Nizam, it tracks the existence of duality and legal uncertainty: 1. Through the stages of the historical development of the legal system of Saudi Arabia since the establishment of the state. 2. By analyzing the mechanism of establishing the Nizam issued by the king under his authority. 3. By exploring the impact of the current modernization of the legal system of Saudi Arabia to resolve the duality and the problem of legal uncertainty. This research suggests that the duality and legal uncertainty in Saudi Arabia’s legal system are partially rooted in the use of the Hanbali School of Fiqh, and partially rooted in the use of the Nizam. Regarding the legal uncertainty, it exists for four reasons: (1) The application of the Hanbali School of Fiqh in its traditional form makes it deficient in covering many emerging issues and lacking modern features of modern legal systems; (2) the Nizam is enacted without prior check to approve that it does not contradict with the rules of Hanbali School of Fiqh; (3) the absence of a later mechanism to repeal or amend the Nizam after enactment, if it is proven that it violates the rules of Hanbali School of Fiqh; (4) the resolution of disputes arising from the application of the Nizam are resolved by committees with jurisdiction outside the framework of judicial authority. Regarding the legal duality, the absence of a prior and later check mechanisms led to making the application of the Nizam in-Sharia Court inappropriate. Meaning it made the Nizam application in Sharia court awkward. This led to the establishment of committees with jurisdiction to adjudicate dispute