CONTRACTS' CONFLICT RULES IN ARAB PRIVATE INTERNATIONAL LAW: A COMPARATIVE STUDY ON PRINCIPLES OF ISLAMIC AND CIVIL LEGAL SYSTEMS.

摘要

This dissertation seeks to introduce the principles of Arab private international law relating to contracts. As the Arab world is divided between two systems of law--the newly adopted civil law system and the traditional Islamic law system--principles of both systems will be discussed. The legal systems of both Egypt and Kuwait will be used as examples of civil law systems, with Saudi Arabia serving as an example of a traditional Islamic law system. This, however, should not be understood to mean that the operative legal system is purely an Islamic or civil law system. Islamic law still plays a role in Egypt and an even greater role in Kuwait. In Saudi Arabia a number of statutes, finding their historical source in Civil law, have been enacted, such as the law of labor and the law of negotiable instruments. This mixture of Islamic and Civil law elements occurs, more or less, in other Arab countries as well.; From the beginning of this century until the 1960's, there occurred a wholesale importation of Western positive ideas into Egypt, then throughout most of the Arab world. Ideas and principles of Private International Law were among them. Along with this Westernization, Arab scholars with a Western orientation took the position that Islamic law teachings do not recognize the principles of Private International Law, especially those relating to the law of conflicts, because Islamic law is a divine law which is not intended to be contrasted with any secular legal system. Inspired by the desire to protect Islamic law from any alien concepts, some Muslim scholars supported this idea. Therefore, another purpose of this study is to prove that this is not stricto sensu true. Through an intensive review of ancient Islamic legal writings with a view to reading them in the context of modern life, I discovered that Islamic law teachings did recognize the problems of what is now known as Private International Law, and they did introduce solutions which can be adapted to meet the needs of modern legal problems. The idea that Islamic law did not deal with conflict of laws is true if only the fundamental principles and conclusive rules revealed in the divine sources of Islamic law, i.e., Quran and Sunnah, are considered. This should be understood to mean what is now called "public policy," which exists in any system of law.; Since the Islamic law teaching and principles in the subject will be explored for first time, it has been thought that an introductory chapter containing the general principles and method of formulation of that law is necessary. As a matter of contrast, definition of the present Arab private international law, under Civil law system, will precede.; General conflict rules pertaining to contracts, exceptions to these rules, and practices of commercial life and their treatment in the courts, are the subjects of the second, third, and fourth chapters respectively.; The fifth chapter contains personal thoughts and suggestions concerning Arab private international law in general and contracts in particular.; The purpose of the sixth chapter is to relate the conclusions of the study. A model draft of a conflicts law will be propounded to include the conclusions and ideas that I think might be acceptable in a country which wants to maintain an Islamic legal system, and, at the same time, wishes to meet the legal needs of modern life.; Throughout the study, an analytic comparative method has been followed to explore the subject. A close analysis and comparison have been conducted of theoretical, statutory, and judicial trends. A comparison of the principles of civil law system with Islamic legal principles has been utilized where necessary.