Twenty-Five Years of Civil Law System in Kuwait

Abstract

The year 1961 was a landmark in the history of Kuwait. In that year, Kuwait achieved full independence, accepted democracy as a form of government, and, last but not least, chose a French-based civil law system. It was a daring choice, because Kuwait at that time had no experience of a modern legal system. What it then had, was, in the main, tradiiional Islamic courts staffed by Shariahwducated judges who administered e Mejelleh (which is the Ottoman compilation of the code of obligations) and other uncodified S&nah law. But with the advent of full mdependence and the accelerating economic resurgence, Kuwait felt the need for a modern system of codified law and chose the civil law system, and turned to Egypt for assistance. Egypt, which had extensive expenence in civil law) furnished Kuwait with a complete machinery of justice, from appeal court judges, public prosecutors and legal advisers) down to legal clerks and summons seners. Above all) Kuwait obtained the services of the eniinent jurist Dr Abdi Razzak Al-Sanhuri) the Jeremy Bentham of Egypt, who had previously drafted laws and consiituiions for several Arab countries. It is not the purpose of this paper to analyse the various laws that Kuwait had adopted) but simply to describe briefly the manner and fonn in which Kuwait adopted what essentially was an alien legal system and integrated it into its social fabric and body politic. Apart from the Constituiion, the most important piece of legislation which Dr Sanhuri drafted was the Law of Commerce, which laid the foundation of commercial activities in Kuwait until it was superseded 20 years later by the new commercial code. Its title as the Law of Commerce was an intended misnomer, since it also incorporated a substantial part of the civil code. In drafting it, Dr Sanhuri borrowed a great deal from the commercial laws of the other Arab countries, which he also helped to draft. For mstance, the seciion on the law of obligaiions came principally from the Iraqi civil code, which itself was a blend of Shah and French legal principles. Dr Sanhuri explained that he preferred the Iraqi law to the Egypiian law of obligaiions, because it was, in his opinion, more akin to the Kuwaiii local environment. The section of the code which deals with agenciesn commission agents, brokers and securities came from the Syrian commercial code) whereas the seciion on bankruptcies came from Egypt. Further laws dealing with other commercial matters were also drafted and enacted. The most significant of these were the law of land registraion, the law regulamg liabiliiies arising from unlawful acts (the law of torts)) the law of commercial companies, and the labour law in the pnvate sector. However) two important aspects Of Kuwaiti law remained unchanged and were unaffected by modern legislations.