Saudi-Arabien Wirtschaftshandbuch Saudi Arabia Business ... - Ghorfa

Englischen nicht law sondern regulations. Dies ist zwar
eher akademischer denn praktischer Natur, hat jedoch
zur Folge, dass diese Vorschriften auch immer Gegenstand
eines islamischen ordre public sein können.
Ab den 1960er Jahren sind zahlreiche Kodifikationen
im Bereich des Wirtschaftsrechts erfolgt, um den Anforderungen
einer modernen Gesellschaft gerecht zu
werden. Hierbei ist anzumerken, dass alle diese Kodifikationen
in Übereinstimmung zu den Grundprinzipien
islamischen Rechts stehen. Zwischen den Jahren 2000
bis 2005 wurden im Hinblick auf den Ende des Jahres
2005 erfolgten Beitritt Saudi-Arabiens zur Welthandelssorganisation
WTO verschiedene Gesetze wesentlich
überarbeitet.
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the leGAl SyStem In SAudI ArAbIA
The law of the Kingdom of Saudi Arabia is not a codified
law but Islamic law which is based on the following four
sources:
– koran,
– Sunna, i.e. the passed down sayings, actions and
sufferances of the prophet as a model for correct
conduct,
– ijma c , i.e. the consensus of the Islamic community
established by the recognised jurists and
– qiyas, i.e. the legal system developed by the Islamic
law schools based on legal analogy.
The Central Arab region follows the Hanbalitic legal
school, in Saudi Arabia marked by Mohammad Ibn
Abdul-Wahab Al-Shaikh (1703-1792), who exerted
enormous religious influence in his life in the 18th
century. He followed the teachings of Ibn Taymiyya
(728AH/1328AD) from Damascus. Other legal schools
in the Sunnite Islam are the Malicites, primarily in
Maghreb, the Hanafites in Egypt and on the Levant, and
the Shafi c iten, also in Egypt.
Saudi Arabia as a territorial state is traditionally subject
to various legal influences. On the one hand the Hijaz,
the west coast of Arabia, was influenced by the Ottoman
Empire and therefore the Mejelle (Majalat Al-Ahkam
Al-Adliyah), a codification of the contract and obligation
law that can be assigned to the Hanafite legal school
and the civil procedure law. This came into effect in the
Ottoman Empire in 1877.
rechTliche rAhMenBeDinGunGen – – underlyInG leGAl condItIonS
On the other, a codified civil law system came over from
Egypt. Here, a civil law book came into effect in 1948; this
book was primarily drafted by the famous Egyptian jurist
Abdel Razzaq As-Sanhuri. He was subsequently commissioned
to draft civil law books for a variety of states such
as e.g. Iraq (1951), Libya (1953), Kuwait (1859), Sudan
and Bahrain (1961).
However this did not happen in Saudi Arabia.
The main focus here was to unify the Kingdom and uphold
traditions, free of colonial influences. It is probable
that in 1927 King Abdul Aziz tried to codify the Islamic
law based the Hanbalitic interpretation by Ibn Taymiyyas.
However, the Hanbalitic jurists were opposed to this
and Saudi Arabian regulations dating from the years
1928 and 1930 stipulate that the judges must use the recognised
sources of the Hanbalitic legal school when deciding
on their judgement.
There was also a further attempt to codify the legal principles
of the Hanbalitic legal school. This work by Majallat
Al-Ahkam Ash-Shariya von Al-Qari was published in
1401 H (1981) in Jeddah. However, it never reached the
status of a law, but simply served the jurists as a tool when
passing judgment.
Something similar happened at the start of the 1920s
when attempts were made to give the then Kingdom of
Nejd and Hijaz a constitution, which was ultimately not
extended. Also, a Sharia civil procedure law, which was
published in the official gazette (the Um Al-Qura) in
1410 H (1992), did not actually come into effect.
The laws in Saudi Arabia are not actually laws as such
because no laws created by man may serve as laws next
to the religious law. This is apparent in the Arabic
choice of words that is only found in Saudi Arabia.
Legal stipulations are not called qanun, but nizam,
i.e. regulations and not laws. This may seem purely
academic but does have the consequence that it is
possible that these regulations can always be the object
of an Islamic ordre public.
From the 1960s onwards, numerous codifications relating
to economic law have been passed to meet the needs
of a modern society. It should be noted here that all
these codifications comply with the basic principles of
Islamic law. Between the years 2000 and 2005, important
laws were revised in preparation for Saudi Arabia’s
entry to the World Trade Organisation (WTO) at the
end of 2005.
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