Impact of international law on the application of Islamic law in Saudi Arabia

• Main Author: Hamzah, Dawood Adesola
• Published: SOAS, University of London 2015
• Online Access: https://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.703402

Individual sovereign states are the basic building blocks of the international legal system. Traditionally, states were considered to be absolutely sovereign in the sense that they were legislatively independent and entered into treaty relations that promoted their interests as defined by themselves. This was the basic traditional vision of international law as a noninterventionist system in the domestic law-making of individual nation-states. But the legal regime of contemporary international law has grown beyond this vision, whereby the absolute sovereignty of modern nation-states has steadily diminished and the concept of sovereignty called into question, especially in relation to domestic law-making by states. Today, international law impacts on domestic laws either directly or indirectly, and states must, while embarking on domestic law-making, be conscious of probable violations of international rules on issues that are basically domestic and under their sovereign control. This impact of international law in the domestic legal sphere of states raises significant questions on the application of Islamic law as domestic law of a modern Muslim-majority state like Saudi Arabia. Traditionally, the Shari'ah as the general value system that stands as a source of Islamic law is considered as divine in nature and thereby immutable. It is therefore often claimed that Islamic law cannot accommodate the encroachment of contemporary international law in the domestic law making of modern Muslim-majority states. Nevertheless, many modern Muslim-majority states remain part of the international legal order, while they continue to adopt domestic laws that are underpinned by Islamic law. How have they been able to sustain their domestic law-making based on Islamic law within the ambit of the encroachment of modern international law as identified above? In that context, this study examines the impact of international law on the domestic legislation of Saudi Arabia, which is a modern Muslim-majority state that has clearly declared Islamic Shari'ah as the basis of its domestic laws and governance.1 This study is important considering the constraints but also the benefits associated with the interaction between international law and the domestic laws of modern Muslim-majority states generally and how that relationship could be accurately interpreted. The main argument of the research is that modern international law, which is conceivably underpinned by western and specifically Eurocentric values, has, despite the traditional concept of sovereignty, steadily encroached upon the domestic legislation of modern nation-states generally, and in particular, Saudi Arabia, a Muslim majority state that strictly adheres to Islamic law as the basis of its domestic legislation. It is argued that while international pressure may be a factor, the inherent benefits of modern international law also play a significant role in influencing Saudi Arabia to maintain necessary equilibrium between its classical and conservative interpretation of Islamic law and relevant rules of modern international law.