MMaauurreerr SScchhooooll ooff LLaaww:: IInnddiiaannaa UUnniivveerrssiittyy DDiiggiittaall RReeppoossiittoorryy @@ MMaauurreerr LLaaww Theses and Dissertations Student Scholarship 8-2015 TToorrtt RReeffoorrmm iinn SSaauuddii AArraabbiiaa:: OObbssttaacclleess aanndd SSoolluuttiioonnss Othman Talbi Indiana University Maurer School of Law, [email protected] Follow this and additional works at: https://www.repository.law.indiana.edu/etd Part of the Comparative and Foreign Law Commons, and the Torts Commons RReeccoommmmeennddeedd CCiittaattiioonn Talbi, Othman, "Tort Reform in Saudi Arabia: Obstacles and Solutions" (2015). Theses and Dissertations. 20. https://www.repository.law.indiana.edu/etd/20 This Dissertation is brought to you for free and open access by the Student Scholarship at Digital Repository @ Maurer Law. It has been accepted for inclusion in Theses and Dissertations by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact [email protected]. Tort Reform in Saudi Arabia: Obstacles and Solutions Othman Talbi Submitted to the faculty of Indiana University Maurer School of Law In partial fulfillment of the requirements for the degree Doctor of Juridical Science 2015 1 Copyright © 2015 Othman Talbi 2 3 Abstract TORT REFORM IN SAUDI ARABIA: OBSTACLES and SOLUTIONS Othman Talbi Saudi Law is based on the broad guidelines of Sharia. This means that religion forms the basis of all Saudi law. Thus, because of the absence of a statutory law in Saudi Torts Law, Sharia’ principles take the place of the statutes. Consequently, when deciding tort cases judges need to consider these principles by interpreting them, and then apply them to each case individually. Furthermore, due to economic improvement and industrialization in Saudi Arabia, the nature and type of legal issues have changed. Therefore, complex cases have emerged for which it is very important to produce a reform resolving new issues. Moreover, Saudi Arabia is still a tribal society in many ways. Although these issues are critical problems for the Saudi torts system, there is a conspicuous lack of academic research addressing the topic. This dissertation will propose a comprehensive plan for tort reform. In this dissertation a classification of Sharia principles that are relevant to torts system will be proposed in such a way as to make them easily accessible to judges in Saudi courts, and widely applicable to modern cases. The overall goal of this effort would be to produce a tort system equivalent of the Restatement of Torts. As well as, the dissertation will examine Saudi legal experts’ reaction regarding the proposed restatement as a tort reform. 4 Table of Contents CHAPTER 1: STATEMENT OF THE PROBLEM: THE SAUDI TORT SYSTEM 9 A. Torts in Saudi Arabia — The Importance of the Topic. 9 B. Tort System in Saudi Arabia. 10 C. Obstacles within the Saudi Tort System. 11 D. Potential Solution. 13 E. The Study Strategy. 15 CHAPTER 2: THEORETICAL FRAMEWORK 17 A. Illustration of Sharia. 17 1. Primary and Supplementary Sources of Sharia. 18 2. The Four Interpretive Schools of Thought in Sharia. 19 B. Elements of Tort Law in Sharia. 21 1. Wrong Doing as an Element of Torts. 23 a. An Act as an Element of Torts. 23 b. An Utterance as an Act of Wrongdoing. 25 c. Causation as an Element of Torts. 25 d. Harm as an Element of Torts. 28 2. Religious Principles in Lieu of Statutes within Framework of Sharia. 29 C. Main Principles of Torts in Sharia. 30 1. Tort Principles from the Holy Quran. 31 2. Tort Principles from Sunnah. 32 3. General Principles of Torts. 32 D. Obstacles to Improving the Saudi Tort System. 33 E. Potential Solutions. 33 1. Establishment of an Official Publication. 33 2. Obstacles to the Establishment of an Official Publication. 34 a. Scope and Breadth of the Publication. 34 b. Opposition from Ultra-Conservative Legal Experts. 34 5 3. Publishing Judicial Opinions to Improve Transparency. 36 CHAPTER 3: METHODOLOGY 39 A. The Aim of the Study. 39 B. Research Method. 40 C. Participants. 40 D. Interviewing and Procedures. 42 E. Questionnaire. 43 CHAPTER 4: DISCRETION WITHIN THE SAUDI TORTS SYSTEM 47 A. Discretion as an Obstacle in the Tort System. 48 B. The Absence of Written Law within the Saudi Torts System. 48 C. Four Schools of Thought when Deciding Cases in Saudi Courts. 52 D. Variation in Interpretation among Judges for the same Sharia Principle. 55 E. Variations between Judgments for Cases with Same Fact Patterns. 61 1. First Group – Complete Agreement. 61 2. Second Group – Complete Agreement – Variation among Schools. 63 3. Third Group – Complete Agreement – Variation among Judges. 64 4. Fourth Group – Disagreement – No Variation. 65 F. Participant Views Regarding Primary Issues within Tort System. 65 CHAPTER 5: RELIGIOUS AND CULTURAL ISSUES WITHIN THE SAUDI TORT SYSTEM 67 A. Cultural Bias towards Compensation in Tort. 68 B. Cultural Bias against Compensation in Torts. 76 C. Overall Conclusions about Bias against Compensation in Torts. 77 CHAPTER 6: THE PROPOSED SOLUTION AND PARTICIPANTS’ REACTIONS 79 A. The Proposal Description. 80 B. Participants’ Reactions Regarding Proposal. 82 1. Group One – Complete Agreement. 84 2. Group Two – Agreement but Concerns about Opposing Views. 86 3. Group Three – Agreement but Concerns about Implementation. 88 6 4. Final Group – Agreement but Concerns about Potential Issues. 91 C. Applicability of Restatement. 92 1. First Group – Ministry of Justice. 96 2. Second Group – Highest Court. 96 3. Third Group – Leading Judges of Different Courts. 97 D. Development of the Restatement. 97 E. Compensation as Main Issue within Saudi Torts System. 102 CHAPTER 7: CONCLUSION 113 A. Overall View. 113 B. Limitations of the Study. 115 C. Future Research. 116 1. Participant Number 1. 123 2. Participant Number 2. 128 3. Participant Number 3. 132 4. Participant Number 4. 137 5. Participant Number 5. 144 6. Participant Number 6. 147 7. Participant Number 7. 152 8. Participant Number 8. 155 11. Participant Number 11. 161 12. Participant Number 12. 166 13. Participant Number 13. 172 14. Participant Number 14. 176 15. Participant Number 15. 180 16. Participant Number 16. 184 17. Participant Number 17, Group of 3 officers. 1, 2, 3. 189 7 Chapter 1: Statement of the Problem: The Saudi Tort System A. Torts in Saudi Arabia — The Importance of the Topic. Saudi Arabia has undergone tremendous modernization in the past few decades, becoming an important player in the global economy. This process necessitates finding a place for traditional religious and cultural values in a modern society. Although great strides have been made in this direction already, Saudi Arabia’s system of civil law remains underdeveloped and is largely ignored by the average Saudi who prefers instead to rely on traditional tribal methods of conflict resolution. Unfortunately, these methods are not a substitute for a modern system of tort law, because they do not properly transfer liability to the perpetrator of the harm and instead allow negligent tortfeasors to externalize the cost of their dangerous activities. In fact, as a Muslim society Saudis generally believe that Sharia is completely perfect, meaning that it has the ability to resolve all present cases and the flexibility to accommodate any contemporary or future issues.1 However, due to economic improvement and industrialization in Saudi Arabia, the nature and type of legal issues have changed involving workplace injuries, car accidents, and insurance claims against 1 Muslims consider Sharia to be the basis of relationships among people within a society, as well as the relationship between Muslims and ALLAH “God.” 9