LA CLAUSULA DE PAZ LABORAL EN EL DERECHO COMPARADO
DERECHO DE HUELGA:
There are essentially two perspectives from which to understand the KSA’s domestic laws. First, there is Shariah law, which is the law that applies to all aspects of life in Islamic society. Next, there are the codified laws, created by the legislature and consistent with Shariah law.95 These are used to regulate all activities within the Kingdom.
94 Faraj (n 34), 43.
95 As noted above, this system mirrors the conception of natural law as that part of divine law that is knowable by man, while positive law is the particularisation or application of natural law to the varying circumstances of different societies. See NHG Robinson, ‘Natural Law, Morality and the Divine Will’ (1950) 3(10) The Philosophical Quarterly 23, 23-24. Thus, the Shariah represents natural law, while legislation and other orders represent positive law. It should be noted here that debate on the link between natural law and the Shariah is ongoing, with influential Islamic scholars such as Makdisi and Crone arguing that there is no natural law tradition in Islam. Their arguments are analysed by Emon, who shows that references to nature or rational proof, where these are not based on scripture, do not provide any basis for asserting divine law in the context of Islam: Anver M Emon, ‘Natural Law and Natural Rights in Islamic Law’ (2005) 20(2) Journal of Law and Religion 351, 351- 395. See also Emon’s philosophical investigation of Islamic natural law and demonstration that where there are competing theologies of the divine, the ontological authority of reason cannot be overlooked: Anver M Evon, Islamic Natural Law Theories (Oxford University Press, 2010). As such, it is argued in this thesis that even within Islamic law, not all determinations of the divine find expression in scripture. Hence, there is good reason to associate natural law with Islamic law.
40 2.2.3.1 Shariah Law
As noted above, the KSA is governed by Shariah law,96 which is primarily based on the Quran
and Sunnah. Hence, all laws and regulations, as well as contracts (including insurance contracts) must comply with the Shariah, although there is no clear standard for determining Shariah-compliance. The Quran is the Holy Book of Islam, revealed to the Prophet Muhammad and representing the word of God. The Sunnah comprises the teachings and lessons of the Prophet Muhammad.97 The Quran provides basic rules of Islamic beliefs and
practices, and standards of human conduct. It is not a code that exhaustively covers a system of laws. Most of the verses do not deal with legal matters. Even the Sunnah is limited to the Holy Prophet’s interpretations of certain verses while acting as mediator and negotiator. As such, Shariah courts have to rely secondary sources that interpret the Quran and further interpret the Sunnah. These are referred to as fiqh.98 However, there are different types of fiqh,
and no consensus on which one takes precedence over the others. They include the ijma, representing consensus interpretations from the earliest generation of Islamic scholars; the qiyas, consisting of the reasoning of Muslim judges when applying the law, and fatwa, consisting of rulings on matters that did not exist in the Prophet’s day.99 These sources of law
must be taken into account and complied with by the legislature, judges and lawyers, when attempting to regulate or enforce activities within Islamic society. With the availability of so many sources, adjudicators have acquired significant discretion in deciding cases. This makes it difficult to predict outcomes given that judges face a number of lawful possibilities. This is problematic, especially in insurance cases. It remains uncertain how adjudicators rely on Shariah to interpret the relevant legislation such as the CICCL and the Working Rules.
What is problematic is that, taken as a whole, Shariah represents more than just a religion, It is a set of rules and provisions, governing every aspect of Muslim life.100 This approach is
intrinsic to Muslim culture and the need to comply with Shariah law is embedded in Muslim
96 Shura Council Law, Article 7. Some argue that Shariah itself is not a law, but rather the guiding principles that govern the religious, political and economic aspects of Muslim life, and to which all transactions and laws must adhere.
97 Ansary (n 1). 98 Ibid.
99 Ibid.
100 M Ayub, Understanding Islamic Finance (John Wiley & Sons Ltd, 2007), 21; Natalie Schoon, Islamic Banking and Finance (Spiramus Press, 2009), 19. Muslims believe that Islam is a ‘complete’ religion and, as such, it is appropriate for regulating society; Vogel (n 23), 3.
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society. In addition to serving as a source of guidance for individuals, its provisions empower the government to regulate society through laws that comply with Shariah principles.101 In fact,
Muslims are brought up to understand that these rights are inviolable, and that compliance is of the utmost importance,102 since Muslims believe that Islamic law is living law.The failure
to submit to it equates to contradicting God's law, thereby rendering a person a sinner. Muslims maintain that this concerns the whole of everyday life.
2.2.3.2 Saudi Statutes
Saudi adjudicators also rely on written statutes. They create standards that serve as a guide for parties, ensuring that their activities are legal, and for judiciary and executive branches to respectively decide disputes and enforce sanctions in response to non-compliance. It is interesting to note that the Saudi legislature uses the term, Nizam meaning ‘regulation’, to describe its legislative acts, as opposed to Qanun, meaning ‘law’ or ‘Act’. The rationale behind this wording is that only God can create laws and as such, the legislature or even the King should not attempt to refer to his enactments as ‘laws’.103 For the purposes of simplicity in
concept and translation, the terms ‘law’ and ‘Act’ are interchangeable with the Saudi legislature’s term, Nizam in this thesis. What is important here is that the rule or regulation is recognised as having the force the law and may be enforced by the distribution of benefits and burdens, or by the imposition of penalties.104
There are a number of legal instruments implemented in SA, including:
Royal Decrees, regulations, executive regulations, lists, codes, rules, procedures, international treaties and agreements, ministerial resolutions, ministerial decisions, circular memoranda, explanatory memoranda, documents, and resolutions which have been designated by the government as the official sources of Saudi Arabian Law.105
101 Vogel (n 23), 3.
102 MH Kabbani, ‘Understanding Islamic Law’ (Islamic Supreme Council of America, 2017) <http://www.islamicsupremecouncil.org/understanding-islam/legal-rulings/52-understanding-islamic-law.html> accessed 14 November 2019.
103 M Hanson, ‘The Influence of French Law on the Legal Development of Saudi Arabia’ (1987) Arab Law Quarterly 272, 289.
104 It follows that in this thesis, Islamic law is essentially studied as a system of positive law. The focus is on positive rules or Akhaam al-Wad. See M Fadel, ‘Islamic Law and American Law: Between Concordance and Dissonance’ (2012-2013) 57 New York Law School Law Review 231, 234. However, it is argued here that the jurisdictional rules are based on the idea that Islamic law binds everyone within a given Islamic jurisdiction, rather than every Muslim or everyone who recognises Islamic law as true. This distinction is important, because it supports the contention that Islamic law reflects natural law.
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In addition to these sources of law, the Saudi King has the legislative power to issue Royal Orders. One of the most important of these is the Basic Law of Governance.
2.3.2.1 The Basic Law of Governance
For nearly 60 years from the date of the KSA’s unification, the Saudi people lived according to Shariah law, without a written constitution.106 However, on March 1, 1992, King Fahad bin
Abdul-Aziz enacted the Basic Law of Governance to delineate the constitutional framework in the KSA.107 He viewed this as a necessary step towards regulating State authorities, managing the transfer of power between heirs, and protecting fundamental human rights.108 Before its
enactment, there was no centralised means of establishing government powers; rather, they were outlined in diverse instruments, strewn together piecemeal to empower the government to regulate society.109
The Basic Law consists of 83 Articles, grouped into nine Chapters, which focus primarily on the system of governance, including its structure and powers. Article 1 provides that the KSA is an Islamic state, with its Constitution rooted in the Quran and Sunnah.110 Article 7 further
affirms that the government is to be guided by Shariah principles, declaring that the government’s authority and the State’s administrative regulations are governed by the Quran and Sunnah.111 Furthermore, in Article 23, the Basic Law confirms that it is the State’s role to
protect the principles of Islam and uphold Shariah law.112
The contents of the Basic Law are quite similar to the constitutions of other nations, given that they establish the basic principles governing behaviour in society and the rights of the people. For example, Article 5 confirms that the KSA is a monarchy,113 while Article 8 provides that
106 R Aba-Namay, ‘The Recent Constitutional Reforms in Saudi Arabia’ (1993) 42 International Law and Comparative Law Quarterly 295, 295.
107 As noted above, although this Law is not referred to as the Kingdom’s constitution, it possesses the nature and meaning that are generally attributed to the written constitutions of countries.
108 Basic Law of Governance. 109 Aba-Namay (n 50), 295.
110 Basic Law of Governance, Article 1.
111 Ibid, Article 7. Given that the Basic Law stresses the importance of Shariah law and was written to be compliant with Shariah principles, there should be no conflict between it and the Quran and Sunnah. See F Al-Kahtani, Current Practices of Saudi Corporate Governance: A Case for Reform (Unpublished PhD Thesis, Brunel University, 2013), 14-15.
112 This is in line with the law’s demand for government in administrative jurisprudence. See E Barendt, ‘Separation of Powers and Constitutional Government’ (1995) Public Law 559, 559-619. See also P Hamburger, Is Administrative Law Lawful? (University of Chicago Press, 2014), 5-7, 12-13.
113 See ‘Saudi Arabia: The New Constitution: The Kingdom of Saudi Arabia’ (1993) 8(3) Arab Law Quarterly 258, 259.
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the government must prioritise justice, consultation, and the equality of citizens under Shariah law. Article 9 emphasises the importance of maintaining Islamic values and of the basic structure of, and need for, unity within the Saudi family. Articles 37 and 40 recognise the right to privacy in one’s home and personal communications, and Article 18 protects private property. Article 23 outlines the KSA’s economic principles, including the rights and duties of transacting parties, stressing that it is the State’s responsibility to protect human rights in accordance with Shariah laws and principles. Finally, Article 16 highlights the sacrosanct nature of public funds, and tasks the Kingdom with safeguarding them.