LEGAL PHILOSOPHIES AND FREEDOM:

THE LEGAL SYSTEMS OF THE UNITED STATES, ISRAEL, AND SAUDI ARABIA

Matt White

December 14, 2015

Liberty University PPOG 640 – Middle East Laws and Policy

            Based on national reputation and repute for civil liberties, vast differences seemingly separate the American, Israeli, and Saudi legal systems. However, several similarities exist. All three judicial systems are hierarchically structured. All three utilize specialty courts with experts adjudicating in a specialized jurisdiction. All three judiciaries are each independent branches of their respective governments. Despite any similarities, national political philosophy creates the primary distinctions between legal systems. The main gear of the American and Israeli legal systems is the preservation of civil liberties and basic freedoms, and in Israel, the judicial preservation of the Jewish and democratic nature of the state. In contrast, the Saudi system of Shari’a law legally confines citizens to the official Saudi version of Islam, at the expense of religious minorities whose religion is not Saudi law. Exterior superficial aspects of a judicial system do not dictate the nature of a legal system. Rather, the fundamental philosophical backbone of the state and of the people drives the true nature of a legal system, either preserving or suppressing freedom, liberty and fair justice.

Major Foundational Ideas and Documents

The American, Israeli, and Saudi legal systems operate under either a constitution, basic law, or both as the major foundational documents. The United States Constitution, crafted by the Constitutional Convention in Philadelphia in 1787, is the highest law in the land. The Convention was specifically formed to revise the weak Articles of Confederation, but ended up scrapping the original foundational document in place of the stronger system of federalism under the Constitution. The Convention had no further legislative purpose. The Declaration of the Establishment of the State of Israel called for the formation of an Elected Constituent Assembly tasked with creating an Israeli constitution no later than October 1, 1948.[1] However, no constitution was ever created. Starting in 1958, the Knesset, Israel’s parliament, began to formulate a set of Basic Laws, defining government structure and basic operations, as well as stating civil liberties consistent with the “values of the State of Israel as a Jewish and democratic state.”[2] In 1995, the Supreme Court of Israel gave the Basic Laws functional constitutional status in the absence of an official constitution.[3]

The Saudi Arabian legal system is guided by a set of Basic Laws, which were enacted in 1992. Article 1 of the Basic Law declares that the Saudi Constitution is Shari’a, or legal principles extracted from the religious teachings of the Qur’an and Sunnah.[4] The fundamental documents governing the Saudi legal system are the religious text fundamental to all of Islam, in Allah’s revealed words to the prophet Muhammad, and the collection of hadith writings in the Sunnah, which are the actions and saying of Muhammad as recorded by his followers and companions. Saudi Basic Law dictates that “The regime derives its power from the Holy Qur’an and the Prophet’s Sunnah, which rule over this and all other state laws.”[5] However, the Saudi monarchy is more than just a narrow theocracy, illustrated by the structure and operations of practical government as well as the administrative principles and basic rights detailed in the law.  

The American and Israeli legal systems both evolved from the British system of common law imported by the colonial governments. At the most foundational level, the British legal system has its roots in the Magna Carta. Many of the specific clauses in the Magna Carta are irrelevant to modern society, but many principles still reverberate throughout the American and Israeli legal systems. The Magna Carta proclaimed “No free man shall be seized or imprisoned, or stripped of his rights or possessions…except by the lawful judgment of his equals or by the law of the land…To no one will we…deny or delay right or justice.”[6] Compare this with the Fourth Amendment’s protection against unreasonable search and seizure, the Sixth Amendment’s guarantee of the right to a speedy trial and the Sixth and Seventh Amendment’s protection of a trial by jury. Likewise, the Israeli Basic Law: Human Dignity and Liberty states, “2) There shall be no violation of the life, body or dignity of any person as such. 3) There shall be no violation of the property of a person,” and outside of the limitation clause, “5) There shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise.”[7] In contrast with the United States, the Israeli system does not employ juries.[8]

Many of these same fundamental principles found in the Magna Carta, U.S. Constitution, and Israeli Basic Law are found in the Basic Law of Saudi Arabia. Article 18 states, “The State shall guarantee the freedom and inviolability of private property,” and Article 37 states, “Houses…shall not be entered without the permission of their owners, not shall they be searched except in cases specified by law.” Ex post facto convictions are banned per Article 38.[9] The enumeration of these rights in the Saudi Basic Law gives credence to the fact that these are universal human rights, not solely claimed by subjects under British common law. However, Shari’a is the proclaimed foundational basis for these rights, developed independent of the Magna Carta. Article 26 states, “The State shall protect human rights in accordance with Islamic Shari’a.”[10]

Moral and Philosophical Bases

The United States and Israel both inherited the British system of common law. Common law systems of government are characterized by the use of judicial precedent to guide case rulings. In the United States, holdings or stare decisis from previous court decisions serve as binding precedent. The United States Supreme Court is bound by its own judicial precedent. However, per Israeli Basic Law: The Judiciary, all lower courts are bound by legal precedent set by the Supreme Court, but the Supreme Court is not bound to follow its own precedent.[11] Israeli justices employ the use of dicta, opinions on a case or other legal principles distinct from the holding, to create binding precedent on the lower courts. These dicta are highly regarded by the lower courts as binding law. By allowing legal opinions to become legal precedent, the Israeli Supreme Court wields a tremendous amount of power.[12]

British jurist William Blackstone is arguably the most influential common law authority. Blackstone is noted for his 1753 Commentaries on the Laws of England, a comprehensive legal manual describing British common law and its moral and philosophical bases. According to Blackstone, the basic form of all law is the natural law that God has ingrained into mankind. Man’s reasoning is an extension of natural law. God “laid down certain immutable laws of human nature…and gave him also the faculty of reason to discover the purport of those laws.”[13] By allowing previous court rulings to serve as legally binding precedent, common law does not credit arbitrary decisions as a source of law. Rather, mankind’s reasoning, wisdom, and rational faculties can only be within the strict unwritten boundaries of natural law.[14] [15]

Natural law philosophy was pervasive throughout the founding of the American and Israeli legal systems. Two months after George Mason asserted in the Virginia Declaration of Rights that “all men are by nature equally free and independent and have certain inherent rights,”[16] fellow Virginian Thomas Jefferson declared the self-evident truths that based on the “Laws of Nature” that “all men are created equal, that they are endowed by their Creator”[17] with the unalienable rights of “life, liberty, and the pursuit of happiness.” Likewise, the Israeli Declaration of Establishment proclaimed “This right is the natural right of the Jewish people to be masters of their own fate, like all other nations, in their own sovereign state.”[18]

While natural law in the American and Israeli legal systems is loosely based on Judeo-Christian values, the philosophical and moral basis of the Saudi Shari’a legal system is entirely religious. The term Islam is an Arabic word meaning “submission.” A Muslim is therefore one who submits to the will of Allah.[19] To Muslims, their religion provides a comprehensive way of life. Guidelines for living a life submitted to the will of Allah can be found in the Shari’a, in the Qur’an as the holy book is the direct word of Allah, and in the Sunnah, as Muhammad lived a life within Allah’s will, and should therefore be emulated.[20] Per Articles 33 and 34 of Saudi Basic Law, it is the legal the duty of every citizen to “defend the Islamic faith,” which is also the primary purpose of the military.[21] Specifically, the Saudi monarchy embraces Sunni Wahhabism as the state religion, despite the presence of a significant Shi’a minority in the east, as well as other Sunni sects.[22]

Despite glaring differences, the Saudi Shari’a legal system and common law share the use of reason as a philosophical aspect. Sunni religious (mufti) and legal scholars (qadis), collectively known as the ulama, use the fiqh process of Islamic jurisprudence, consisting of ijtihad (mental reasoning) and ijma (consensus), to interpret the principles in the Qur’an and Sunnah and to apply them towards legal principles and case rulings.[23] Unlike common law, Shari’a case holdings do not form binding precedent, although qadis frequently consult past fatwas issued by muftis, a stated religious opinion on a matter, in deciding a case. 

Structure and Separation

            The American federal court system is hierarchical. The Supreme Court is the highest court in the land. Below that are U.S. Courts of Appeals presiding over twelve regional circuits, with a nation 13^th appellate court with jurisdiction over specific cases such as patent law. Regions are further divided into 94 district courts.[24] Federal courts preside over constitutional cases and those involving national issues such as federal laws and treaties. State courts oversee state law, criminal, tort, and family law cases.[25]

Israel is not a federalist system, unlike the United States, as local regions and districts have no sovereign authority beyond the national level.[26]  The Israeli Supreme Court is the highest court in the land. The 2000 Administrative Courts Law transferred significant responsibility to lower courts, however the Supreme Court is still inundated with thousands of cases per year.[27] Unlike the Supreme Court of the United States, with all nine justices presiding over cases, the Israeli court, comprised of fifteen justices, usually sits is panels of three, sometimes more, but always with an odd number.[28] In addition, the Israeli legal system contains a number of religious courts. Orthodox Jewish courts have jurisdiction over marriage and divorce for Israeli Jews. For non-Jewish citizens, Israel has a pluralistic religious courts system, with Shari’a courts for Muslims, Christian courts for ten recognized denominations, and Druze courts for similar matters of marriage, divorce, and personal status.[29]

The principle of separation of powers is central to the American federal system, with the three separate but coequal branches of government checking and balancing the other branches. Per Article III Section 1 of the United States Constitution, judicial power is vested in the Supreme Court and any lower federal courts created by Congress. Per Article I Section 1, legislative authority is solely vested in Congress. The concept of separation of powers was notably articulated in the philosophy of Montesquieu. “Again, there be no liberty, if the judiciary power be not separated from the legislative and executive.”[30] Such sentiments are echoed throughout the Federalist Papers, particularly Madison’s Federalist 47.[31] In the Israeli parliamentary system, the executive and legislative branches are intertwined, as ministers are also members of the Knesset, though the judiciary is a separate branch. The American Supreme Court maintains the established power of judicial review, ruling on the constitutionality of legislation and executive actions. The Israeli Court is arguably more activist, with broader and more frequently exercised powers of judicial review over the Knesset and administrative agencies, as well as over the military during wartime.[32] Extrajudicial statements frequently influence legislation.[33]

Like the United States and Israel, the Saudi Supreme Court is the highest court, and operates as an independent branch. Saudi Basic Law, Article 46 states “The judicial authority is an independent power. In discharging their duties, the judges bow to no other authority than that of Islamic Shari’a.”[34] Below the Supreme Court are various provincial appellate courts or Courts of Cassation,[35] and First Instance courts holding jurisdiction over criminal, civil cases, and personal status cases.[36] As part of a 2007 judicial restructuring, independent commercial courts were created, staffed by technical experts in economic affairs, in order to unburden the religious courts.[37] The Board of Grievances is the highest court of appeal for the commercial courts.[38] The king’s Council of Ministers oversees the Saudi bureaucracy. The Majlis, the Saudi legislative branch, plays a minimal role in creating legislation, as only Allah has the power to create Islamic Shari’a law. Primarily, the Majlis simply takes royal decrees and turns them into formal statutes and administrative codes.[39] Similar to the U.S. president’s role in the American judiciary, Saudi Basic Law dictates that the king is responsible for the implementation of judicial verdicts, and that the king is responsible for the appointment of judges in consultation with the Supreme Judicial Council (Articles 50 and 52).[40] However, privileges unseen in the United States and Israel, members of the Saudi royal family have judicial immunity.[41]

Effectiveness and Efficiency

Common measures of effectiveness and efficiency exist between the American, Israeli, and Saudi legal systems. However, court efficiency does not deterministically breed freedom and civil liberties. A detailed quantitative cross study of the effectiveness and efficiency of national legal systems is outside the scope of this analysis, however, studies generally adhere to similar criteria, including the independence of the judiciary.[42] The hierarchical judiciaries of the United States, Israel, and Saudi Arabia can be efficient. While all three nations employ a general First Instance-Appellate Court-Supreme Court structure, the American federal courts have the added advantage of state courts, which limit the burden of federal courts to federal cases. However, inefficiencies can arise if the line is blurred between state and federal jurisdiction. Specialized courts, such as the religious courts in Israel, the commercial courts in Saudi Arabia, and specialized state courts in the United States can foster effectiveness and efficiency. Caseload is a measure of efficiency. The United States Supreme Court receives around 7,000 writs of certiorari per year, but only hears 80-150.[43] Very few cases are heard at first instance, while around two-thirds are appeals from federal courts, and the rest are appeals from state courts.[44] In comparison, the Israeli Supreme Court commonly serves as the court of first instance. The court received over 10,000 cases per year from 2000-2006,[45] and in 2010, closed over 4,700 cases.[46] Speedy trials are a hallmark of an efficient court, but if justice is too swift, the cost can be fairness and liberty. If a large number of cases are overturned in appellate courts, the process may be highly inefficient, but a fair hearing may be more fully ensured.

With each Israeli justice writing lengthy opinions in dicta, determining legal precedent can be a daunting task, creating inconsistencies and inefficiencies. The process is more efficient in the United States, as precedent is more strictly held to case holdings. The argument can be made that with strict adherence to Shari’a, with powers of interpretation reserved to official religious and judicial scholars, the Saudi Islamic legal system is most efficient in this regard.

Conduciveness to Freedom and Liberty, and Impact on Lives of Citizens

Despite any superficial similarities to the American and Israeli legal systems, the Saudi legal system, based on Wahhabism, is not conducive to freedom. Wahhabism is a sect of Sunni Islam founded by Muhammad ibn Abdul Wahhab in the 18^th century.[47] With an emphasis on purifying Islam from corrupting influences, Wahhab focused on the concepts of tawhid, or the oneness of God,[48] and most strongly condemned shirk, or polytheism. Wahhab taught the doctrine of Takfir, the concept that fellow Muslims were capable of being infidels, primarily through the common Muslim practice of erecting and visiting shrines, and venerating Muslim saints, which he viewed as polytheistic practices. By accusing Muslims that did not follow his puritanical vision as being “polytheists,” Wahhab justified violence against the Muslim infidels. Wahhab condemned relationships with Christians and Jews and called them sorcerers, but was the harshest against non-Wahhabi Muslims.[49]

The Saudi legal system does not easily accommodate non-Wahhabis. Though Shi’a Muslims comprise 10-15 percent of the population, there are no Shi’a members on the Council of Senior Religious Scholars. In 2014, only six of the 150-member legislative Consultative Council were Shi’i.[50] Shi’i do not have full control over their own mosques. Conversion from Islam is punishable by death. Blasphemy is theoretically a capital crime, even though death is rarely enforced.[51] Saudi Islamic law is not conducive to religious freedom for non-Muslims. Christian worship is highly suppressed, even in private homes. Adherence to Islam is required for citizenship. In courts, the testimony of a woman only counts as half that of a man, and testimonies of non-Muslims may be thrown out.[52]

The Israeli legal system accommodates freedom and liberty within the basic values of the state. Israeli religious courts, including Shari’a courts, have limited jurisdiction that only cover personal status issues, and separate religious courts accommodate multiple religions. As Gelpe noted, before the Basic Law: Human Dignity and Liberty was enacted, Israeli judges used rational judgment to ensure laws conformed within the basic Israeli values of freedom, freedom of religion, association, occupation, and gender and racial equality, among other general principles.[53]   Though some view the Israeli Supreme Court as activist or overreaching, many view a strong court as the main defender of minority rights against the potentially repressive rule of the majority. Conversely, some opposed to the creation of an official state constitution view one would grant too much protection to the Arab minority, potentially at the expense of national security.[54] Without a constitution, the guardianship of civil rights for the law-abiding population is in the hands of the courts.

Unlike in Israel, without a formal constitution, or Saudi Arabia, which constitutionally upholds Sunni-Wahhabi Islam as ultimate law, freedom of religion in the United States is carved into stone in the First Amendment alongside the protection of other civil liberties. Constitutional freedom of religion can be delineated into two clauses, the disestablishment clause, “Congress shall make no law respecting an establishment of religion,” and the free exercise clause, “…or prohibiting the free exercise thereof…”[55] Israeli religious courts and state law heavily influenced by Jewish law would not fit under the American disestablishment clause. However, recent societal trends in the United States have been towards interpreting the free exercise clause to mean freedom from religion. Banning prayer in school and banning nativity scenes and the Ten Commandments in government buildings are quaint issues of past decades, compared with institutions forced to cater to same-sex marriage and to provide medical services in contradiction to religious beliefs. In this regard, the argument can be made that the freedom of religious worship is best protected by the Israeli legal system, even without a formal constitution.

Conclusion

            Many similarities exist between the American, Israeli, and Saudi legal systems. All three systems consist of a similar structural hierarchy. Similar rights protected by Saudi Basic Law, Israeli Basic Law, and the U.S. Constitution date back to concepts found in the Magna Carta and Shari’a. British common law systems found in Israel and the United States nor Islamic Law of Saudi Arabia rely on codified statutes. However, despite any similarities of legal systems, a profound gap separates the freedom and civil liberties enjoyed in the United States and Israel and the absence of civil and minority religious rights in Saudi Arabia, showing that superficial similarities in legal systems are nondeterministic in fomenting liberty. The main driver for protecting liberty is the fundamental philosophical foundation of the regime reflected in national culture.  The overarching foundation and structure of the Saudi legal system is Sunni-Wahhabi Shari’a. Sunni males may enjoy many basic civil rights in Saudi Arabia, but only within the strict bounds of the official Saudi version of Islamic Shari’a. Religious minorities enjoy no civil rights under Saudi law, as their religion is not Saudi law. Israel prides itself as a “Jewish and democratic state.” Jewish law, tradition and culture are reflected in Israeli state law. However, democracy and civil liberty are key Israeli basic values, and as such, full religious freedoms are granted to non-Jewish Israeli citizens. Both the United States and Israel were founded under the principle of the natural laws of self-rule and individual sovereignty. The freedom of religion, free speech, and freedom of assembly are not granted by the United States Constitution or any other document. Rather, natural law dictates that these rights are owned by the populace and are not the government’s property to bestow. The United States Constitution and Israeli Basic Law simply swear not to confiscate these natural rights.

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