The Sources of Legislation in the Saudi Civil Transactions Law and in the Egyptian Civil Code

The sources of legislation are known under the term "sources of law", by which are meant the formal sources of law. These are the sources from which a judge draws the rule for the dispute before him, without passing beyond them to others, since the judge is bound by the command of his legislator and does not depart from it.

Article 1 of the Civil Transactions Law, issued in the Kingdom of Saudi Arabia by Royal Decree M/191 of 29-11-1444 AH, sets out those sources: the provisions of the applicable law apply to all matters they cover in their wording or in their tenor; where no provision can be applied, the general rules set out in the concluding provisions apply; and where no such rule can be applied, the provisions drawn from Islamic law most suited to the applicable law apply.

It follows from this text that the Saudi legislator has ordered the sources of legislation in the Civil Transactions Law so that they begin with the provisions of the applicable law itself, followed by the general rules set out in its concluding provisions, and end with the provisions drawn from Islamic law most suited to the applicable law. These sources are ordered exhaustively, from the highest to the lowest, as regards the judge's obligation to apply them to the dispute before him.

The provisions of these sources may be set out in detail as follows:

One: the Civil Transactions Law.

It is the body of substantive legal rules governing private relations between individuals and those in their position, save what falls within another branch of private law. The Civil Transactions Law is the general law governing the relations and bonds of private law: it is their origin and foundation, and recourse must therefore be had to it in every case or question not governed by any other branch of private law.

The provisions of the applicable law are the primary source of legislation. Its provisions govern the matters it regulates expressly or by implication, which the legislator expressed by providing that the provisions of the applicable law apply to all matters they cover in their wording or in their tenor.

Several considerations prompted the codification of the provisions of civil transactions in a single comprehensive code, among them holding judges and litigants to a single body of statutory provisions and rules.

The rulings of the courts, their principles and their decisions have affirmed that judges must comply with the provisions of the statutes the legislator issues.The Supreme Judicial Council, sitting as its Permanent Panel, laid down that the judiciary is an authority, and that instructions issued by the sovereign which do not conflict with the Sharia must be adhered to. (692/5), (22/11/1423). A judge may accordingly not depart from what the Civil Transactions Law lays down save where no provision can be applied. Where there is no statutory provision he can apply to the matter before him, he passes to the next source: the general rules set out in the concluding provisions of the applicable law.

Two: the general rules set out in the concluding provisions of the applicable law.

These concluding provisions appear in Article 720 of the applicable law, the penultimate article, and comprise forty-one legal maxims. A judge may not depart from these general rules save where there is no provision applicable to the matter before him, as Article 1 of the Civil Transactions Law provides. He may then resort to the wide field the applicable law lays down: the provisions drawn from Islamic law most suited to the applicable law.

Three: the provisions drawn from Islamic law most suited to the applicable law.

In this the legislator follows the approach laid down in the Basic Law of Governance, of giving effect before the courts to the provisions of Islamic law according to what the Book and the Sunna indicate. Article 7 of the Basic Law of Governance provides that governance in the Kingdom of Saudi Arabia draws its authority from the Book of God and the Sunna of His Messenger, which are sovereign over this Law and over all the statutes of the state. Islamic law is thus the source of the Basic Law and of the remaining statutes. Article 48 further provides that the courts apply to the cases before them the provisions of Islamic law, according to what the Book and the Sunna indicate, together with such statutes as the sovereign issues that do not conflict with the Book and the Sunna.

The rulings of the courts have taken up this rule of giving effect to the provisions of Islamic law where no statutory provision governs the question. Among these is the holding of the Supreme Judicial Council, sitting as its Permanent Panel, that where a right cannot be given to its holder save by joining retaliation to compensation in a case where retaliation is wholly impracticable, that is permissible, there being nothing in the law of God to prevent it — indeed the principles of the Sharia require it. (78/3), (4/1/1407). The breadth this affords litigants and judges is plain, as is its application of the provisions of God's law in matters the statute does not address.

In ordering the sources of the applicable law, the Saudi legislator has followed the approach of the civil codifier in the Arab Republic of Egypt in giving priority in application to the statute. The Egyptian civil codifier, however, gave priority to custom over the provisions of Islamic law, ordering the remaining sources in descending order as follows: custom, then Islamic law, then natural law, then equity. Article 1 of the Egyptian Civil Code provides that legislative texts govern all matters they cover in their wording or in their tenor; where no legislative text can be applied, the judge decides according to custom; failing that, according to Islamic law; and failing that, according to natural law and the rules of equity.

The general rule in both bodies of legislation is that a judge may not pass over a source he is directed to follow in favour of another — as by passing over the provisions of the applicable law directly to the rules of the Sharia without passing through the general rules set out at the end of the applicable law — or his judgment is vitiated by error in applying the applicable law. This obligation finds its echo before the Egyptian Court of Cassation, which has held that where an appellant has relied on the existence of a customary rule and furnished the trial court with evidence of it, and failing that, no blame attaches to the court if it applies the principles of Islamic law directly where the legislation contains no rule capable of application.

It is not enough, for legislation to be set aside, that it cannot be applied to the dispute in its wording — that is, in its express terms: it must equally be inapplicable in its tenor and its import. The judge must therefore search out the import of the text and what its terms contain, pursuing this with the aid of the methods of interpretation and by returning to its historical sources and its preparatory works, so as to dispel any obscurity attending it. Where he finds nothing applicable, he passes to the source next in order. Where he falls short in that inquiry and sets the legislation aside, his judgment is contrary to law.

Finally, a survey of the provisions of the applicable law leads us to an important legal source laid down in the comparative civil codes, such as the Egyptian Civil Code: custom. Custom is not expressly provided for in Article 1 of the applicable law, but it is provided for in the general rules set out in its concluding provisions, in the maxim that what is known by custom is as though stipulated as a condition. From this it may be understood that custom may be regarded as a second source of legislation, following the provisions of the applicable law applicable, being one of the legal maxims set out in the concluding provisions of the applicable law.

Custom is a practice settled in a community which has consented to be bound by it in its dealings. It has two elements, one material and the other moral. The moral is that it be a settled practice; the material is that it carry the character of obligation. Once custom meets both elements in this way, it becomes a legal rule like the legislated rule, equal to it in every respect when the judge comes to apply it to a dispute in the absence of a legislative text governing it. Custom is thus a subsidiary formal source, to which resort may be had only where there is no statutory provision governing the dispute.