The legal system of

Kuwait and the USA

 The US legal system
• Each of the states has its own constitution, legislature and court system
• Some fields of law (e.g. copyright) are domain of the federal
government; some are for the states (e.g. defamation); and for some
(e.g. advertising regulations) states and federal government have
concurrent jurisdiction
• Sources of law:
• Constitution (highest-ranking; no law may conflict with the Constitution)
• Statutes (laws passed by legislative bodies)
• Administrative regulations (e.g. by the Federal Communication Commission)
• Case law
• State law is invalid if it conflicts with federal law
 Doctrine of precedent

• Case law: law derived from previous, published decisions of appellate

courts
• courts create law (principles and rules) through rulings in cases
• Precedent: a case that other courts rely on when deciding future
cases with similar facts or issues
• e.g. New York Times v. Sullivan (376 U.S. 254) in libel cases
• Countries with legal systems based on previous court decisions
include the UK, USA, Canada (except Quebec), Australia, India,
Pakistan, South Africa, etc.
The US court system
 The Kuwaiti legal system: historical overview;
18th–19th c.
• Gulf legal systems rely on ‘catalogue of just laws’ (Majellat al-Ahkam al-Adliya)
• System developed by Ottoman Empire
• Islamic law
• British influence (1899: protectorate)
• British dominance in defense and foreign affairs (but not in internal politics)
• Four sets of courts operating in Kuwait (like elsewhere in the Gulf):
1. Courts of the ruler with general jurisdiction
• Ruler issued judgments according to custom
• Custom informed by and consistent with – but formulated largely outside of – Sharia
2. Tribal populations submit disputes to tribal leaders
3. Merchant and craftsmen courts and arbitration committees to rule in specialized disputes according to their
own customs
4. Sharia
• Especially in matters of personal status
• Only courts with a well-defined and written body of law and semblance of fixed procedure
 The Kuwaiti legal system: historical overview
(cont’d)
• 1961: independence from Britain
• Parliamentary system adopted within 5 months
• Kuwait chooses to introduce French civil law system (with
Egyptian assistance)
• Legal reform first and foremost serving state-building purposes
• Civil Law more rigid, with emphasis on legal codes, statutes, rather
than the courts/precedent
• Civil law offers a unified law code and a nation-wide hierarchy of
courts to enforce it, attractive to ambitious and centralizing state elites
• Strong Egyptian influence, for
• Egyptian codes were the only comprehensive codes available in Arabic
• Large-scale hiring of Egyptian legal personnel since pre-independence
• The British view the Egyptian codes as adequate and modern
• Abd al-Razzaq Al-Sanhuri asked to take charge of drafting codes
 The Kuwaiti legal system and Sharia law
• Mid-1970s: renewed cultural and intellectual interest in Islamic law
• Salience of idea to merge Islamic institutions and state institutions
• Article 2 of Constitution: Islam is the state religion
• Islamic legal codes (e.g. death penalty for apostasy, punishments for adultery and defamation)
• Article 2 of Kuwaiti Constitution: Sharia is a main source of legislation
• Attempts to amend it to “the” main source fail in 1973, 1975, 1981, 1984
• Problem: conflicts with statutes violating Sharia
• Solution: Islamic banking; House of Zakat; banning sale of alcohol; citizenship tied to being Muslim; family
law (Personal Status Laws, incl. marriage, divorce, custody of children, inheritance) based on Sharia
• 1990s: Need to preserve Islamic identity without disengaging Kuwait from global
development  1991 creation of Consultative Committee on the Implementation of the
Provisions of Muslim Sharia Law
• Goal: plan for “preparation of circumstances to complete the application of the law of Islam, while
considering the actual situation of the country and its interests”
• 10 recommendations (after 20 years of preparation)
 Sources of media law; the legislative
process
• Sources of law:
• Constitution
• Legislation from the National Assembly
• Amiri decrees
• International treaties
• Legislative power is held by the Amir and parliament together
• Legislative process:
1. The Amir or a member of the National Assembly proposes a bill
• If the bill is initiated by an MP and rejected, it cannot be reintroduced in the same session
2. After the bill is passed by the National Assembly, it is approved by the Amir
3. The Amir promulgates [officially announces] the law as a decree
4. The law is published in the Official Gazette (Kuwait Al-Youm)
• Kuwaiti laws are counted in sequence from the first law passed to the present number and
year
• E.g. Law No. 3 of 2006
 The Kuwaiti court system
• Civil law system: courts consider the written law first before looking at
previous judgments
• Case starts at public prosecution
• Investigation followed by decision to dismiss the case or transfer it to court
• Court of First Instance
• Handles civil and commercial matters, some criminal cases
• Judgments can be appealed
• Higher Court of Appeal
• Court of Cassation
• Reviews the judgments of the other courts and decides whether they applied
the law correctly
• Constitutional Court