The constitutional feasibility of codifying Sharia discretion in relation to punishments in Saudi Arabia

This study intends to assess the discretionary powers and their functioning and effect within the context of the Saudi legal system; assess the current system’s credibility as a result of this practice; and lastly, attempt to analyse and propose a feasible reform process. Cognisant of the flaws and inconsistencies which emerge from the evaluation of the current system, the researcher believes that improved codification of the Saudi legal system, among other reforms, would lead to greater public confidence in, and improved support of, the functioning of the Saudi justice system in the modern age. The research is based on qualitative analyses of Islamic criminal law in the context of the Saudi legal system. An extensive study into the nature of the Constitution, types of punishments and the extent of judicial discretion will help the researcher in undertaking the study. Further, the researcher will apply Fuller’s principles of morality in law - criteria internationally excepted as being the basic measure to ensure the legality of any given legal system - to the Saudi system in an attempt to examine to what extent these principles are followed within KSA. The results of the study suggest that the Saudi legal system, particularly with regard to sentencing and punishments, does not fully comply with Fuller’s criteria of the morality of law which are reflected in international law. Rather, the scheme applied in KSA appears to suffer from ambiguities and irregularities. This analysis reveals the need for initiatives, such as the codification of law and the setting up of an official body which would be charged with reforming the current regime. Such reforms, it is contended, would improve the credibility of approaches to punishment and sentencing in KSA on both on the domestic and international stage.