An anlaysis of the origins, extent, and nature of the legal concept of prescription in civil matters under Saudi Arabian hanbali law with reference to the effects of sharia and positive law

Abstract

In Islamic Sharia law, prescription has been more commonly referred to as murūr al-zamān [the lapse of time]. It has been claimed that the abstract principle of the lapse of time only has the effect of barring a claim and that is not capable of creating and extinguishing the right itself. In the context of Islamic law, this concept of prescription is often ascribed only to the Hanafi and Maliki schools of Sharia law, and it has been claimed that such principle has not been recognized by the Hanbali School. Based on that, my reading shows that, under Saudi jurisdiction (which is principally based on uncodified Hanbali Sharia law), this hypothesis is a key problem as in practice there are many secondary Saudi laws in place applying prescription rules to bar civil actions. Thus, by arguing that such principle has not been recognized by Sharia law as applied in Saudi Arabia, the legality of such provisions would be in question, given the fact that all Saudi enacted laws must conform with Islamic law. Moreover, my analysis argues that in studies of Saudi Hanbali law, prescription has neither been discussed widely nor given serious independent consideration. In the context of Saudi and Hanbali law, issues of prescription have not only been marginalized and minimized, but also inaccuracies and mis-readings are often found in related academic literature. Drawing on findings across various disciplines, including studies of classical and modern Islamic law, as well as legal studies on Saudi and Arab laws, this study presents new readings of the issues of the existence and origins of the legal concept of civil prescription from the perspectives of the Saudi-Hanbali School of law. Moreover, it presents the first comprehensive survey of the extent of implementation of the rules of prescription in the Saudi civil regulations over the last eight decades. Finally, from both theory and practice aspects, the thesis attempts to conclude with a critical analysis of the single ‘negative’ perspective of prescription in both Islamic and Saudi law.