Sjd Dissertation Proposal Abdulrahman Malki The Judicial Pre

Sjd Dissertation Proposalabdulrahman Malkithe Judicial Precedent In

The law is a set of rules and regulations that apply to all members of society to preserve and guarantee their rights. The laws are related to the application of the penalty in case of violation or disobedience. Therefore, it is very important of having a reliable sources of law that the judges can refer to in order of making the right decisions. One of the significant source of law is Judicial Precedents which is going to be the subject of this proposal dissertation.

The Judicial Precedent is a source of law where the decision has been made previously and created a law for judges to refer back as guideline in the future cases that have similar facts and circumstances. There are some countries who use the Judicial Precedent as source of law to make final decision such as, United States of America, England and South Africa. The sources of legislation in Saudi Arabia are four. First one is Quran, the holy book of God that Muslim’s first guideline. Second one is Sunnah, where prophet Muhammad's actions and sayings made an approach for Muslims. Third one is Unanimity, which is a general agreement between jurists on an Islamic case that has been controversial. Last one is Qeyas, which is similar to the precedent yet Qeyas based on Islamic rules that have been decided long time ago. However, in Saudi Arabia the Judicial precedent is not considered as a source of law or even persuasive law except in administrative courts. Most judges do not consider precedents as an important argument, even if the same circumstances are applied to current cases. This limits consistency and efficiency in judicial decision-making, often forcing judges to issue rulings based on diligence and interpretation of existing laws, which can lead to escalations to higher courts and inconsistent decisions.

If judicial precedents were considered binding, they could serve as reliable references for future cases, streamlining judicial processes and reducing the burden on judges. Recognizing precedents as a binding source could also expedite trials and foster consistency in rulings, benefiting the public and aligning with justice objectives. While the Saudi legal system is based on written laws rooted in Islamic principles, adopting a systematic approach to precedents—similar to the US—could be beneficial if implemented carefully to respect the Islamic legal framework. The research aims to explore how judicial precedents can be effectively integrated into Saudi law without conflicting with Islamic principles and the existing civil law structure.

Paper For Above instruction

Introduction

The importance of a reliable legal framework cannot be overstated in any judicial system. It ensures consistency, fairness, and efficiency in legal proceedings. In many common law countries such as the United States, judicial precedents serve as a fundamental source of law, guiding courts and judges in decision-making processes. Conversely, civil law countries like Saudi Arabia primarily rely on codified statutes derived from Islamic law, such as the Quran and Sunnah, with limited emphasis on past judicial decisions. This distinction underscores the potential benefits and challenges of integrating judicial precedents into Saudi Arabia’s legal system.

The concept of judicial precedent—stare decisis—has its roots in English law and has been adopted extensively worldwide, particularly in common law jurisdictions. It entails that past judicial decisions, especially those made by higher courts, bind lower courts and influence future rulings, thereby creating a body of case law that guides the judiciary. Countries like the UK, South Africa, and the US capitalize on this system, which promotes stability and predictability in legal decisions. In contrast, Saudi Arabia’s legal system, grounded in Islamic Shariah law, regards the Quran and Sunnah as primary sources, with judicial decisions playing a supplementary role. This traditional approach has often limited the consideration of precedents, primarily viewing them as persuasive rather than binding.

Despite this, the incorporation of judicial precedents in Saudi Arabia has been suggested as a means to modernize and streamline the judiciary. It could reduce case-to-case variability, increase judicial efficiency, and provide clearer legal guidance, especially in civil and commercial disputes. However, accommodating precedents requires careful adaptation to align with Islamic principles and cultural norms. Learning from the US legal system, which emphasizes case law and judicial reasoning, could offer valuable insights into how precedents might be operationalized in Saudi Arabia’s context.

The American legal system, characterized by its common law foundations, demonstrates how judicial precedents shape the legal landscape. Courts are bound by decisions of higher courts, and legal reasoning is documented through case law that evolves over time. This dynamic process allows the law to adapt to societal changes while maintaining consistency. For Saudi Arabia, adopting a similar approach demands a balanced strategy that respects Islamic jurisprudence and codified statutes. It involves identifying which decisions could serve as binding precedents and establishing conditions for their application.

The research considers several key questions. First, whether judicial precedents can be integrated into the Islamic-based civil law system of Saudi Arabia. Second, understanding the objections from Islamic jurists who oppose binding precedents and developing persuasive arguments to demonstrate their benefits. Third, how Saudi Arabia can learn from the US system without conflicting with its Islamic principles. Lastly, determining criteria for deciding which decisions should be recognized as binding precedents. Addressing these questions involves a comprehensive review of legal theories, comparative analysis, and empirical case studies.

Methodologically, the dissertation is structured into four chapters. The first chapter provides a historical analysis of judicial precedents in various jurisdictions, focusing on the US and Saudi Arabia, examining their origins, applications, and challenges. The second chapter discusses the advantages of precedents, especially in enhancing judicial efficiency and consistency, supported by US experience and scholarly opinions. The third chapter explores the conditions under which decisions can be regarded as binding precedents in Saudi courts, considering Islamic legal principles and existing legal frameworks. The final chapter presents a practical implementation study, analyzing civil and commercial cases to illustrate how precedents could influence judicial outcomes and improve legal certainty.

Overall, this research aims to promote the recognition of judicial precedents as a significant source of law in Saudi Arabia. It advocates for a carefully calibrated integration that respects Islamic jurisprudence while leveraging the benefits of consistent and efficient judicial decision-making. By drawing lessons from the US system, the study aspires to propose a reform model adaptable to Saudi legal culture and capable of advancing the country's judicial modernization efforts.

References

• Alabdli, S. M. (2006/2007). Summarize case law research: An applied theory study. Committee for Research and Judiciary in Saudi Arabia. doi:10.12816/001183.
• Gurnani, N. (2015, May 6). Precedents as a source of law. Retrieved from [URL]
• Moahmmed, M. N. (2013). Comparative Law and Judiciary (1st ed.). Riyadh, Saudi Arabia: King Fahad Library.
• Teacher, Law. (November 2013). Judicial precedent is a source of law. Retrieved from [URL]
• The Qur’an, the last revealed word of God, is the primary source of every Muslim’s faith and practice. It deals with all the subjects which concern human beings: wisdom, doctrine, worship, transactions, law…etc., but its basic theme is the relationship between God and His creatures.
• Additional references from scholarly articles and legal texts on judicial precedents and comparative legal systems.