Gavin Howe
Kuwait's legal system is a mix of British common law, French civil law, Egyptian civil law, and Islamic law. The country's legal system is largely secular, with Sharia law governing only family law for Muslim residents. Kuwait's legal system is influenced by its history as a former British colony and the presence of Islamic law due to the country's Muslim population. The country's constitution, promulgated in 1962, establishes Islam as the state religion. This mix of legal traditions in Kuwait's legal system reflects the country's diverse cultural and historical influences.
| Characteristics | Values |
|---|---|
| Legal System | Mixed legal system consisting of English common law, French civil law, and Islamic sharia law |
| Constitution | Yes, promulgated in 1962 |
| Constitutional Court | Yes, rules on the conformity of laws and decrees with the constitution |
| Type of Government | Monarchical and constitutional |
| Head of State | His Highness the Amir of the State |
| Legislative Body | Kuwait National Assembly |
| Number of Assembly Members | 50 |
| Assembly Member Tenure | 4 years |
| Election Type | Free and fair |
| Authorities | Legislative, executive, and judiciary |
| Head of Authorities | The Amir |
| Power to Conclude Treaties | Yes, vested in the Amir |
| Nationality Law | Yes, from 1959 |
| National Religion | Islam |
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What You'll Learn
Kuwait's legal system is a mix of British common law, French civil law, Egyptian civil law and Islamic law
Kuwait's legal system is a blend of British common law, French civil law, Egyptian civil law, and Islamic law. The country's constitution, enacted in 1962, draws on both Western and Arab models, and provides for an independent judiciary. The legal system comprises the Civil Code, the Commercial Code, the Penal Code, and the Code of Criminal Procedure, contained in Law No. 17 of 1960.
The foundation of English common law is "legal precedent", referred to as stare decisis, meaning "to stand by things decided". In this system, court judges base their decisions largely on the rules and doctrines developed and supplemented over time by the judges of earlier English courts. Common law is often synonymous with English common law and is in force in approximately 80 countries that were formerly part of or influenced by the British Empire.
French civil law, also referred to as European continental law, is derived mainly from the Roman Corpus Juris Civilus, a collection of laws and legal interpretations compiled under the East Roman (Byzantine) Emperor Justinian I between AD 528 and 565. The major feature of civil law systems is that the laws are organised into systematic written codes. In civil law, the sources recognised as authoritative are principally legislation, especially codifications in constitutions or statutes enacted by governments, and secondarily, custom.
Sharia law, or Islamic religious law, is the main source of legislation in Kuwait, according to the country's constitution. The primary sources of sharia law are the Quran and the Sunnah, the teachings of the Prophet Muhammad. Traditional Sunni Muslims also recognise the consensus of Muhammad's companions and Islamic jurists on certain issues, called ijmas, and various forms of reasoning, including analogy by legal scholars, referred to as qiyas. Shia Muslims reject ijmas and qiyas as sources of sharia law. While sharia law governs family law for Muslim residents, non-Muslims in Kuwait have a secular family law.
Kuwait's system of government is monarchical and constitutional, with the authority transferred between members of the ruling family, the family of Mubarak Al-Sabah. The ruler of the country is the Amir, who rules through the cabinet. The Amir has the power to conclude treaties and agreements by decree, and no laws enacted by the National Assembly are valid unless signed by the Amir within one month.
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The legal system is largely secular
Kuwait's legal system is largely secular, with a mix of English common law, French civil law, and Islamic sharia law. The country's legal system is derived from the civil law system, which is based on the Roman Corpus Juris Civilus, a collection of laws and interpretations compiled under the East Roman Emperor Justinian I between AD 528 and 565. The major feature of civil law systems is that laws are systematically written and organised into codes. While Kuwait's legal system draws from various traditions, it maintains a largely secular character.
The country's Constitution, promulgated in 1962, provides the foundation for its legal system. The Constitution establishes Kuwait as a democratic amirate with a monarchical and constitutional system of government. The Amir, as the ruler of the country, wields significant power and is the head of the authorities, which include the legislative, executive, and judiciary branches. The Amir has the exclusive power to issue pardons and execute decrees, and plays a crucial role in treaty-making, concluding agreements, and referring them to the National Assembly.
While Kuwait's legal system incorporates elements of Islamic law, its application is primarily limited to family law for Muslim residents. Non-Muslims in Kuwait are governed by a secular family law. This segregation of legal codes based on religious affiliation demonstrates the secular nature of the country's legal framework.
The Kuwaiti Constitution also designates Islam as the state religion. While this recognition gives Islam an official status, the legal system maintains its secular character by not imposing Islamic laws uniformly on all citizens, regardless of their religious beliefs. This separation of religious laws for specific communities is a characteristic feature of a secular legal framework.
Additionally, the process of naturalisation and the acquisition of Kuwaiti nationality are governed by secular laws and procedures. The Nationality Law of 1959 outlines the requirements for proving Kuwaiti nationality, which include residency conditions, character requirements, and, notably, a provision for converting to Islam with a minimum period of five years before the grant of naturalisation. This legal framework, which combines residency, character, and religious considerations, reflects a secular approach to citizenship and nationality within Kuwait.
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Sharia law governs family law for Muslim residents
Kuwait's legal system is a mix of British common law, French civil law, Egyptian civil law, and Islamic law. The Constitution of Kuwait, which makes Islam the state religion, is the primary source of the country's legal system.
Sharia law, which is derived from the Quran and the Sunnah, governs family law for Muslim residents in Kuwait. Sunni and Shia Muslims have their own courts that handle family law and personal status matters in accordance with their own jurisprudence. The Sunni sect employs the Maliki or Hanbali interpretation of Islamic law, while the Shia sect uses the Jafari interpretation. The particular Islamic sect of the husband or father determines which court has jurisdiction over family law issues.
In custody issues resulting from divorce, Kuwaiti law typically favours the mother for small children. Girls usually live with their mother until they marry, while boys can choose to reside with their mother or father after reaching puberty. The Sunni and Shia sects have different approaches to child custody. Sunni law considers the best interests of the child at various ages and the religion of the mother. If the mother is Muslim, she is typically granted custody. If the mother is unfit or unable to take custody, her nearest female relative will be given custody. If there are no female relatives willing or able to take custody, the father or a male relative is usually given custody.
In Shia law, custody decisions are based on the rights of the parents. For a woman to receive custody of her children in the event of a divorce, she must be Muslim, rational, and unmarried. If the mother is unable to care for the child or dies, the father receives custody. If the father dies, custody reverts to the mother. If both parents die, the paternal grandfather is awarded custody.
It is important to note that a non-Muslim male cannot marry a Muslim female unless he converts to Islam. However, a Muslim male is permitted to marry a non-Muslim female if she follows another "book" faith, such as Judaism or Christianity.
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Non-Muslims in Kuwait have a secular family law
Kuwait's legal system is a mix of British common law, French civil law, Egyptian civil law, and Islamic law. While the country's legal system is largely based on Islam, non-Muslims in Kuwait are governed by secular family law.
Sharia law dictates that a non-Muslim may not inherit from a Muslim, and a Muslim may not inherit from a non-Muslim. Non-Muslim women who do not convert to Islam before or after their marriage cannot legally inherit from their Muslim husbands. However, a non-Muslim spouse can be provided for through a "living will" that specifically grants them property and assets. Limitations to inheritance can also be circumvented through the "sale" of assets to the wife, which must be concluded while the husband is in good health and registered.
In Kuwait, a non-Muslim male may not marry a Muslim female unless he converts to Islam. A Muslim male may marry a non-Muslim female if she is of another "book" faith, such as Judaism or Christianity.
In custody issues resulting from divorce, Kuwaiti law typically favors the mother for small children. However, American women with custody of their children are prohibited from traveling with them outside of Kuwait without their ex-husband's or the court's permission. Additionally, if an American woman with custody of her children remarries, the father of her children can have her declared unfit to raise them, resulting in custody being transferred to the Kuwaiti father's family.
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The foundation of English common law is legal precedent
Kuwait's legal system is a mix of British common law, French civil law, Egyptian civil law, and Islamic law. The country's constitution makes Islam the state religion.
English common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, which translates to "to stand by things decided". This means that courts follow precedents established by previous decisions. When resolving similar cases, courts typically align their reasoning with the precedent set in the previous decision. However, in cases with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish new precedent.
The common law, so named because it was common to all the king's courts across England, originated in the practices of the courts of the English kings following the Norman Conquest in 1066. It established a unified legal system, gradually replacing local folk courts and manorial courts.
The early development of case law in the 13th century has been traced to Bracton's "On the Laws and Customs of England". This led to the yearly compilations of court cases known as Year Books, the first of which was published in 1268, the same year that Bracton died. The Year Books serve as the principal source of knowledge regarding the developing legal doctrines, concepts, and methods from the 13th to the 16th centuries, when common law evolved into a recognisable form.
Today, approximately one-third of the world's population lives in common law jurisdictions or in mixed legal systems that integrate common law and civil law. Common law systems give significant weight to judicial precedent and the style of reasoning inherited from the English legal system.
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Frequently asked questions
Kuwait's legal system is a mix of British or English common law, French civil law, Egyptian civil law, and Islamic law.
Common law, often synonymous with English common law, is a legal system whose foundation is "legal precedent". This is referred to as stare decisis, meaning "to stand by things decided". In common-law systems, court judges base their decisions largely on the rules and doctrines developed by the judges of earlier courts.
The primary sources of Islamic law, or Sharia law, are the Quran and the Sunnah, the teachings of the Prophet Muhammad. Traditional Sunni Muslims also recognize the consensus of Muhammad's companions and Islamic jurists on certain issues, called ijmas, and various forms of reasoning, including analogy, referred to as qiyas.
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