The Diffusion of Western Legal Concepts in Kuwait: Reflections on the State, the Legal System and Legal Education from Comparative and Historical Perspectives

Chapter 3
The Diffusion of Western Legal Concepts in Kuwait: Reflections on the State, the Legal System and Legal Education from Comparative and Historical Perspectives

Myra Williamson

Introduction

This chapter examines the diffusion of Western legal concepts in Kuwait. Before embarking on this project, a few introductory remarks are proffered regarding the chapter’s purpose and perspective.

First, it adopts a prima facie comparative law approach but it is interdisciplinary to the extent that law is always (necessarily) interdisciplinary. The borders between the study of law, politics, history, economics, geography, language, sociology, psychology, religion, philosophy, anthropology and virtually any other area of study in the humanities, are always somewhat blurred. The more one learns about the law and different legal systems, the fuzzier those borders become. That is a good thing. The law is a social construct and it can never be studied with any meaning in isolation from the contributions made by those other branches of the humanities.

Second, this is not a pure ‘comparative law’ text in the sense of comprehensively and systematically comparing two or more legal systems. A few tentative comparisons are drawn between Kuwait and New Zealand without artificially extending this comparison beyond what it can stand but this chapter does not purport to provide a comprehensive comparative analysis of the New Zealand and Kuwaiti legal systems. The purpose is to explore the diffusion of Western legal concepts in Kuwait in three specific areas.

Third, the final form of this chapter was influenced by the theme of the conference for which it was originally researched and written.¹ The author was originally motivated to focus on the concept of ‘diffusion’ as that term is understood in comparative law. With teaching and/or research experience in areas as diverse as public international law, jurisprudence, comparative law, constitutional law, company law, terrorism and international law, law and societies and legal terminology in English, one often notices connections and relationships between subject areas. In all these areas of teaching and research one may unconsciously undertake comparative legal analysis without calling it by that name. The overlaps that exist between discrete subjects of law study and comparative law have been described and discussed in the literature.² However, the author does not purport to be an expert in the field of comparative law thus the conclusions offered here will no doubt benefit from further research.

The fourth and final introductory comment is a self-admonishment: there are several dangers in utilising comparative law methodology, many of which were identified by the famous legal comparativist, Alan Watson, in his intriguing book, Legal Transplants.³ Watson wrote a chapter called ‘The Perils of Comparative Law’ which contains several warnings for budding legal comparativists including his statement that ‘comparative law is superficial’ – a peril that is usually compounded with simply getting the foreign law wrong. Watson intoned that ‘[e]rror of law is probably more common in Comparative Law than in any other branch of legal study’.⁴ Watson’s ‘third peril’ of comparative law methodology is that ‘comparative law can scarcely be systematic’.⁵ These warnings apply to the current inquiry: in selecting a few concepts for discussion, this chapter is far from a systematic and comprehensive analysis but hopefully it will provide some food for thought.

Definitions: ‘Diffusion’ of ‘Western Legal Concepts’

It is appropriate to briefly clarify two terms used in the title of this chapter. There is a body of diffusion research in various areas of the humanities. As noted by Carolan:

Diffusion research combines scholarship in areas such as sociology, anthropology, psychology, marketing and communication studies to examine the process by which ideas and innovations spread.⁶ (Emphasis added)

This chapter adopts Carolan’s interpretation of diffusion: research that looks at the process by which legal ideas and legal innovations have spread. ‘Diffusion’ is a concept that is gaining ground in comparative law circles and it is appearing frequently as a focus point for discussion.⁷ That is not to say that it is a new term but it has, arguably, been more associated with the hard sciences and the social sciences generally rather than law in particular.⁸ As for the phrase ‘Western legal concepts’, this is a little trickier to define. The phrase could be the subject of a chapter in and of itself. Here, it is used in a fairly loose way to refer to legal concepts that could be traced to Ancient Greece or Rome, but are likely to be traceable to more recent developments in either Europe or the United States. ‘The West’ is a term that is used (overused) frequently, supposedly without any need for definition or clarification. Perhaps it has lost its exact meaning over time although it seems to refer to anything belonging to Western Europe and any of the countries that trace their origins to that region, which share common values, traditions and religion. This chapter will touch on selected concepts such as the notion of the sovereign state, the separation of powers, the rule of law and common law and civil law legal traditions, which are all usually accepted as Western legal concepts. However, it is noted that arguments could be raised against such a classification. To round out this point, the author agrees with the view, expressed more elegantly by Glenn, that ‘[t]he “West”, as it is usually described, contains some of the “East”. The French expression “mixité” thus best describes the common condition of humanity’.⁹

Diffusion: ‘The West’, Kuwait and New Zealand

An analysis of the diffusion of Western legal concepts in the Kuwaiti legal system ought to begin with some background information regarding the Kuwaiti legal system. However, whilst researching Kuwaiti legal history, the author began to notice some unexpected parallels with New Zealand legal history. New Zealand has a common law legal system and was formerly a colony of Great Britain. The exact date on which New Zealand gained its full independence from Great Britain is not a simple matter to ascertain. Perhaps it could be said to have occurred in 1947 when the New Zealand Parliament adopted the Statute of Westminster Adoption Act, giving it full legislative powers. That date is not conclusive, however, as the constitutional changes that were needed to completely separate New Zealand from Great Britain occurred slowly and in stages over many years. As all students of comparative law seem destined to repeat, there are both similarities and differences between New Zealand’s path to independence and Kuwait’s. It is noted at the outset that Kuwait is a mainly civil law legal system, which was a former British protectorate – it gained independence in 1961. At the risk of falling into one of Watson’s other ‘perils’ (choosing systems for study which have no proper relationship, thereby leading to conclusions which are lacking in significance),¹⁰

there are some Western legal concepts, familiar to a New Zealand observer, which are visible in the Kuwaiti legal system and worthy of discussion.

Three main areas are discussed below: the concept of the ‘state’, the classification of Kuwait’s legal system and legal education in Kuwait. They are discussed in a particular order, moving from broad observations towards more narrowly focused ones. The objective is to identify Western legal and/or political concepts and determine to what extent the Kuwait legal system is influenced by the diffusion, dissemination, transmission and movement of those so-called Western concepts.¹¹

Diffusion of the Concept of ‘the State’

Kuwait, officially known as ‘The State of Kuwait’ or (in Arabic) ‘Dawlat al Kuwayt’, is a small state in the Middle East that has a 222-kilometre land border with the Kingdom of Saudi Arabia to the south, and a 242-kilometre land border with Iraq to the north.¹² On its eastern coast it is bordered by the waters of the Persian Gulf. As for its government, Kuwait is sometimes described as a ‘nominal constitutional monarchy’¹³ or as a ‘constitutional emirate’.¹⁴ Kuwait has some democratic features: Article 6 of the Kuwait Constitution states that ‘the system of government in Kuwait shall be democratic’. Whilst it is often lauded as the most democratic of the Gulf States it is arguably not a ‘democracy’ in the sense in which that term is usually defined in the literature since it does not satisfy all the generally accepted criteria.¹⁵ The question of whether Kuwait is or is not a genuine democracy could be discussed here (is democracy a ‘Western legal concept’ anyway?) but it entails a wider discussion, which is beyond the scope of the current chapter. Kuwait gained independence from Great Britain on 19 June 1961 in an amicable split. The Constitution of the State of Kuwait was approved and promulgated on 11 November 1962. Article 1 of the Constitution states that, ‘Kuwait is an Arab State, independent and fully sovereign’. Article 2 states that ‘The religion of the State is Islam and the Islamic Shari’a shall be a main source of legislation’. Kuwait is a Muslim country with a Sunni/Shi’a split usually estimated at approximately 70/30 respectively. It is noted that Islamic Shari’a is a main source of legislation in Kuwait but it is not the only or even the main source of legislation. The debate around that particular wording in Article 2 is interesting and is discussed elsewhere.¹⁶ Yet hidden amongst these mainly straightforward and fairly well known facts about Kuwait lies the first point to be raised in this chapter: the very existence of the ‘State of Kuwait’ as a sovereign and independent state is evidence of a profound diffusion of Western political and legal concepts.

It is contended that in Islam there is no concept of a nation state. Various writers have explored whether the concept of a ‘state’ existed in the traditional Islamic sources (the Qur’an and Sunnah) and the consensus seems to be that Islam did not provide for ‘states’ in so far as that concept is understood today.¹⁷ Islam was not a political movement – it did not seek to create political or legal entities.¹⁸ At the time that the Qur’an was revealed, there were no ‘states’ in existence and, as an aside, the concept of a state did not exist in pre-Islamic Arabia either.¹⁹ Kuwait has a long archaeological record that pre-dates Islam. The earliest traces of civilisation in what is modern-day Kuwait, can be traced back to the second millennium BCE with the colonisation of the island of Failaka (or Icarus) by the Mesopotamians and then later by the Greeks. It came under the Islamic caliphate during Arab expansions throughout the Arabian Peninsula. It seems fairly well accepted that the area was permanently settled by the Bani Khalid tribe around the seventeenth century.²⁰

It is also fairly well-accepted that the ‘sovereign state’ is a Westphalian creation, dating back to the signing of the Peace of Westpahlia in 1648. Glenn notes that nationality and statehood ‘appear historically as creations of the western enlightenment’.²¹ The notion of the state has become an enduring concept of international law and politics that now permeates and dominates the global community. The modern State of Kuwait, as with all other Muslim-majority nations, has completely embraced the Westphalian notion of the sovereign state and (almost) all that that entails. Space does not permit a detailed analysis here of the concept of the ‘Islamic state’; that substantial topic has been explored elsewhere.²² The point made here is a simple one: it is interesting that a modern ‘State of Kuwait’²³ has evolved and exists today, given that the land, which is now modern Kuwait, was once occupied by nomadic, tribal, people who fished for pearls and seaweed, and herded camels without any notion of statehood. The people of the land that later became the State of Kuwait had no interest in the concept of states, with their related requirements of borders, passports, citizenship, immigration, policing and the like. They moved freely around the land of the Arabian peninsula as members of the wider Muslim ‘umma’. Yet when one speaks to a young Kuwaiti law student today one observes that their understanding of the notion of a ‘state’ is integral to their self-identity and they consider that the concept of their state sits easily alongside their Islamic beliefs, of which they are equally and justifiably proud. They take Kuwait’s statehood for granted.²⁴ Vehicles in Kuwait are occasionally seen emblazoned with stickers that loudly and proudly state that ‘Kuwait is for Kuwaitis’²⁵ and it is clear that modern Kuwaitis identify closely with their state as it is currently defined, politically and geographically. It has been taken as a given that Kuwaitis are part of a state and there is little pause for thought about the theoretical underpinnings of the origins of the concept of the ‘state’.

First, the concept of ‘separation of powers’, which is certainly evident in the Kuwaiti Constitution, is possibly a Western concept and capable of inclusion here. The ideas of the French aristocrat Montesquieu may be ‘Western’ but whether or not they were first thought of by Montesquieu is a topic worthy of further analysis. It could be argued that it was a Muslim leader who first practiced the separation of powers in government. The second Caliph of Islam, Umar ibn Al-Khattab (may Allah be pleased with him), is sometimes cited as the first ruler in the history of the world to separate the judiciary from the executive.²⁶ If that is the case then the ‘separation of powers’ would not be evidence of a diffusion of Western legal/political concepts to Kuwait but a diffusion of an Islamic concept to the West. That claim cannot be properly investigated here and is beyond the scope of this chapter. Suffice to say that the modern understanding of the ‘separation of powers’ does exist in modern Kuwait and is now enshrined in the Kuwaiti Constitution.

The Rule of Law

Secondly, there is a substantial body of literature on the diffusion of the concept of ‘the rule of law’, which is tempting to delve into here. The ‘rule of law’ has a deep historical lineage, possibly traceable to ancient Greece but certainly evident in, and usually referenced to, the English Magna Carta/Charta of 1215.²⁷ Thus, it may seem to qualify as a ‘Western legal concept’ but on the other hand it may also be disputed that ‘the rule of law’ is originally a Western concept. There is much scholarly writing on Islamic constitutionalism, which suggests that ‘the rule of law’ concept as understood in light of the Magna Carta was already practiced in the early years of Islam by the Prophet Muhammad (peace be upon him) and by the ‘rightly-guided Caliphs’.²⁸ Notably, Islam (historically) never had cause to be troubled with rulers claiming to be divinely inspired, as in England. The Prophet Muhammad and the following four ‘rightly-guided Caliphs’ never claimed to hold their position because God had appointed them to rule. The Prophet Muhammad like the rulers who followed him, ruled in accordance with God’s law not as God’s representative on Earth. The ‘rule of law’, which is captured in the Magna Carta, was a reaction to the assertion of the ‘divine right of kings’ to rule, but the Islamic caliphs never asserted that God had appointed them to rule. Instead, they sourced their authority from the people: the bay’ah or declaration of allegiance from the people was the factor that determined the leader.²⁹ Therefore, the ‘rule of law’ in Islam began from a different place to that of its counterpart in the West. These days, things are done somewhat differently. Although the bay’ah or declaration of allegiance is still theoretically taken, the constitution of Kuwait in common with its other Gulf neighbours, severely curtails who is eligible to be the leader. In Kuwait, only the male descendants of the late Mubarak al-Sabah are eligible to hold the title of Emir.³⁰ Another aspect of the ‘rule of law’ is that all people are equally bound by the law and no one is above the law. In the author’s personal experience, that aspect of the rule of law does not effectively exist in Kuwait. For example, in a recent conversation with the customer services representative of the Al Shaya Group, which owns many of the malls in Kuwait, the author was told that although it is against the law to smoke in public places, such as malls, the management of the malls cannot stop some people from smoking because ‘some government people believe that they are above the law’.³¹ In light of the foregoing, it would be an interesting topic in its own right to discuss the extent to which the ‘rule of law’ is or is not a Western concept and, furthermore, the extent to which the rule of law exists in the modern State of Kuwait, given that the religion of the State is Islam and Shari’a is a main source of legislation.³²

These two areas – the separation of powers and the rule of law – are not explored in this chapter since they require substantial research and more space than can be afforded here. Suffice to say that comparative constitutional law provides a fruitful opportunity to discuss the diffusion of ‘Western legal concepts’ in Kuwait, yet the logical starting point would have to be to first determine what is a ‘Western’ concept. The short discussion above shows that determining what counts as a ‘Western’ concept is, itself, a difficult question.

Diffusion of Western Legal Concepts within the Kuwaiti Legal System

The second main area of analysis in this chapter relates more directly to the Kuwaiti legal system. Kuwait has an interesting and complex legal history. Kuwait’s legal system appears to be an amalgam of two legal systems. As mentioned above, Islamic Shari’a (or Islamic Law) is present in Kuwait and regulates personal status, that is, laws relating to marriage, divorce and inheritance. Sunni and Shi’a Muslims are each governed by the relevant Islamic Laws pertaining to their faith in personal areas. In all other areas, Egyptian/French-inspired codified law applies. However, it must be noted and understood that Shari’a’s influence is not limited to personal status laws alone. Kuwait boasts one of the largest and most diverse Islamic financial service industries in the world. Banking, investment, insurance and other financial services are influenced by Islamic laws, as are some tax laws.³³

Although these two sources of law (Islamic Shari’a and Egyptian/French-inspired civil law) are both present in Kuwait, scholars classify Kuwait’s legal systems differently. All comparative law scholars are familiar with the debates over classifications of legal systems. This area has historically been one of the mainstays of the discipline. Even if one finds that the topic of categorisation/taxonomies of legal families may be exhausted as an area of scholarly writing and is somewhat lacking in relevance for present-day challenges, nevertheless, it is still a good starting point to ask how a particular legal system has been classified. Vernon Valentine Palmer classifies Kuwait as a ‘[m]ixed system of civil law and Muslim law’³⁴ whereas the Central Intelligence Agency’s World Factbook describes Kuwait as a ‘mixed legal system consisting of English common law, French civil law and Islamic religious law’.³⁵ Another source classifies Kuwait as having Muslim law/civil law/customary law.³⁶ The discrepancy between these classifications might be explained by examining Kuwait’s tangled legal history.

In 1899 Kuwait and Great Britain entered into the Anglo-Kuwaiti Treaty. This treaty promised the then ruler of Kuwait, Mubarak bin Sabah al-Sabah (and his successors) protection from outside aggression and non-interference in Kuwait’s internal affairs. In return, the ruler of Kuwait was prohibited ‘from establishing diplomatic relations with any other foreign power and from alienating any part of its territories to any other foreign state or foreign national without the prior consent of the British government’.³⁷

The relationship between Kuwait and Great Britain led, in 1925, to the establishment in Kuwait of the British Jurisdiction, which was separate from, but running side-by-side with, the National Jurisdiction. In effect, there were two completely separate legal systems operating in Kuwait until its independence from Great Britain in 1961. The National Jurisdiction (which applied to approximately 250,000 people) embraced all Kuwaiti citizens, nationals of independent Arab States, nationals of Iran and citizens of British-protected states in the Persian Gulf. According to Ahmed Hijazi, a Registrar of the British Court in Kuwait in 1954, the National Jurisdiction was semi-tribal except in personal status matters, which were (and still are) governed by Islamic Law.³⁸ Interestingly, under the National Jurisdiction there were no written laws, no procedure and no defined courts. Hijazi observed as follows:

It is true that in theory the Majellah (the Ottoman Civil Code, based on Islamic Law) was the law of the land but in practice the law was the conscience of the official dispensing justice […]³⁹

The British Jurisdiction (which applied to approximately 30,000 people) embraced all other persons in the State. These ‘other persons’ consisted mainly of British subjects, citizens of all nations of the British Commonwealth, mainly Indians and Pakistanis, citizens of the United States and a few Greeks, Germans and Italian citizens who came to Kuwait with the oil boom.⁴⁰ According to Hijazi: