Common Law System in the United Arab Emirates

Introduction

When the United Arab Emirates gained independence from the United Kingdom in December 2971, it became apparent that the leaders had to come up with a legal system that would be relevant to the local population. According to Ercanbrack, by the time the country gained its independence, its legal system was fully based on the British law.¹ The authors of the country’s constitution were tasked with the responsibility of coming up with a legal system that would guide the courts and entire legal structure of the country.

However, one of the biggest challenges that the initial authors of the country’s constitution faced was whether to embrace the British legal system that was in practice at that time or to change to a more Islamic Law oriented constitution. As a country governed by Islamic rulers, it was desirable to come up with a legal system based on Shariah Law. However, the country had become used to the common law system and many experts believed that it was serving the purpose needed of a proper legal system.

The constitution that was developed was a hybrid of both Shariah Law and British Common Law. Since then, amendments have been made to the legal system of this country to align it to the changing needs. The country has witnessed massive economic developments in the recent past that has attracted foreigners from all over the world. For instance, Dubai has become a major global business hub and tourists’ destination. The government has been keen on having a legal system that can accommodate foreigners and locals alike to help promote economic development. In this paper, the researcher will focus on analyzing the legal system of the United Arab Emirates.

Discussion

UAE Legal System

The UAE’s legal system is structured in a way that allows each of its Emirates embrace the federal court system or to establish its independent judiciary.² The federal courts, especially the Supreme Court, have a national jurisdiction that allows them to try any case from any of the Emirates. However, there is state court system with jurisdiction within specific states. The flexibility of the legal system was embraced to allow the local rulers to embrace a system they consider most appropriate in governing their territory.

It was also done with the understanding that the increasing immigration in some of the Emirates created fundamental differences in the population governed by each of the rulers.³ To understand the country’s legal system, it is important to focus on the criminal law, personal status law, and social security law.

Criminal Law

The criminal justice system is a hybrid of both Shariah Law and the British legal system. The country’s penal code has some elements of Islamic Shariah in specific cases, for instance when it comes to paying of blood money. Restorative Justice has been embraced when it comes to juvenile justice system. Under this legal model, a juvenile (which is defined in the country’s constitution as a person below 18 years) cannot be sentenced to imprisonment, capital punishment, or be fined if found guilty of a criminal offence.⁴

However, they can be sentenced to a rehabilitation center, be put under supervision of a guardian, or be reprimanded by the judge. When handling commercial and civil disputes and felony offences, Shariah law can apply. For instance, although flogging has become a rare sentence in the country, one found guilty of offences such as alcohol consumption (among Muslims) or adultery may receive such a sentence as defined in Islamic Law.

According to Thompson, people found guilty of felony murder can be sentenced to death by stoning, as stated in the Islamic Law while others are sentenced to life in prison depending on the Emirate where the trial is conducted and the law applied.⁵ However, Alhosani notes that as some of the Emirates such as Dubai become increasingly cosmopolitan, the application of Shariah Law is becoming less common in the country.⁶

According to Alhosani, a number of statutes make the United Arab Emirates’ legal system divergent from that of Western countries such as the United States and United Kingdom.⁷ Abortion is classified as a criminal offence and when one is found guilty, the punishment can be a prison sentence of no more than five years or a fine not exceeding AED 9,999. Apostasy, especially abandoning Islamic faith, is a major criminal offence punishable by death.

Such a legal system is not common in Western countries and other countries that do not practice Shariah Law. Another aspect of UAE’s legal system that is divergent from that of the Western countries is on dress code, homosexuality, and display of public affection⁸. The country’s legal system has become less strict when it comes to dress code because of the diversity in some of its cities, but there are places where women are expected by law to cover their knees and shoulders, failure of which one can be sentenced to flogging.

Unlike in the United Kingdom and United States where homosexuality is legal and protected by law, in the UAE the practice is classified as a capital offence punishable by stoning to death. Public display of affection committed by foreigners is punishable by deportation, but when the offenders are Emiratis, they can be sentenced to flogging.⁹ Another unique aspect of this legal system is that during Ramadan, eating, drinking, and smoking in public between sunrise and sunset is illegal for all adults (both Muslims and non-Muslims) who are above 18 years.

Personal Status Law

When it comes to personal status law, also known as family law or matrimonial law, then Shariah principles are often applied largely in the UAE’s legal system.¹⁰ For Muslims staying in the country, matters relating to marriage, child custody, divorce, and wealth sharing, including inheritance, are strictly governed by the Shariah law. For the non-Muslims, Article 1 of the Personal Status Law allows them to make special request to a judge for their case not to be based on Islamic Law.¹¹

However, when it is determined that such requests- when granted- may go against the country’s constitution, then the case must be decided based on Islamic law. For instance, when one is seeking a divorce from a gay partner, the constitution of the country does not recognize such a marriage in the first case. When such individuals confess under oath that they have engaged in intimate relationships (people of the same gender) then the case changed into a criminal offence and both parties may be sentenced to death.

In the same spirit, when one dies, a gay partner cannot claim his property under the family law as the deceased couple. If such a person cannot prove to the court that they were in a valid business partnership with the deceased that justifies the transfer of wealth, then the wealth will be transferred to the deceased’s next of kin.

The UAE’s legal system prohibits Emirati women from marrying non-Muslims. However, they can be allowed to marry a person who has been converted into Islam. The law, which is heavily based on Shariah principles, dictates that Emirati women must get permission from a male guardian before marrying or remarrying.¹² Marrying without the permission of such a guardian is an offence that can attract varying degree of punishment. However, the law is not very clear when it comes to Emirati men marrying non-Muslims.

Brown attributes this imbalance to the cultural belief and practice where women are expected to embrace cultural practices of the husband.¹³ As such, the local culture assumes that once a woman is married to a Muslim man, he consequently becomes a Muslim. The family law in the United Arab Emirates gives men power over women when it comes to controlling family wealth and making important decision. It is only under unique circumstances, such as when a husband dies or becomes mentally impaired, will a women become empowered in a family setting.

Even in such circumstances, such women who become heads of their family are required to consult with male guardians when making important decisions. In cases where a divorce is approved by court, custody of children is often given to the father. Among the non-Muslims, one can request a judge not to apply Islamic principles and Law when deciding such cases. Both parties must agree to the use of non-Islamic principles even if both of them are non-Muslims.

Social Security Law

In the United States, Article 22 of the Universal Declaration of Human Rights defines the concept of social security as entitlement of all Americans to social security and ability to make the most of what the country has to offer without unnecessary hindrances from the government.¹⁴ In the United Arab Emirates, such laws do not exist. However, the country has statutes that define how social benefits should be made available to the members of the public.

It is a legal requirement for the government to subsidize education, healthcare, electricity, and water. The National Assistance Law also requires the government to take care of victims of natural disasters, catastrophic illnesses, or major attacks and fire outbreaks. The elderly and people living with disabilities are also entitled to social benefits to help them lead a normal life without having to depend on their friends or family members. Although it is common to find cases where family members care for their elderly parents or those living with disability, the law recognizes the role of the government in offering care when family members lack the capacity to do so. The elderly can opt to stay in homes for the elderly or receive monthly stipends and stay with their families.

Legal Influences That Have Defined UAE’s Legal System

The current legal system in the United Arab Emirates has been defined by a number of external influencers to become what it currently is today. According to Sgueo, the biggest external influencer of the country’s legal system is the British common law that was in practice until the country gained its independence in 1971.¹⁵ When the country gained its independence, the government embraced the system that was put in place by the colonial rulers, only making a number of changes to make it fit into the Islamic culture of the local population.

After gaining independence, the government initiated an ambitious plan to reform its legal system to reflect the needs and aspiration of the local population in the country. However, it is important to note that as the stakeholders try to reform the legal system in the country, they have to put into consideration a number of factors as the country have to relate with other countries regionally and internationally. As such, the current legal system of the country has been significantly influenced by international law.

Public International Law

The United Arab Emirates depend on other countries for trade and political/military relationships. To facilitate such relationships, it has become necessary for the country to embrace public international law within its legal system. The system must recognize the importance of treaties and the need to respect them once they are signed. For instance, the country is a member of the United Nations and as such, it is bound by the rules and policies set by this international body.

The United Nations has a set of policies that guide the relationship between countries and how they can interact without posing intentional and unjustified threat to other countries. Although the legal regulations set out by the UN are often considered soft law because it depends on powerful nations’ will to implement it, ignoring it may expose a country to attack by foreign powers. The architects of the country’s constitution ensured that public international law is respected within the country’s constitution. It is the responsibility of the government to ensure that the law of the land is aligned with the international law to avoid unnecessary confrontations with the international community.

Private International Law

In the modern highly globalized society where movement and communication have been simplified, it is common to find people moving from their home countries to foreign countries in search of better employment opportunities. Others travel to the foreign countries as tourists while others are businesspeople. The international community saw it necessary to come up with private international law that makes it possible for a country to avoid using its own legal system when trying a foreigner in some crimes. Private international law has had major influence in the current legal system in the United Arab Emirates.

For instance, the system dictates that a foreigner is found guilty of homosexuality the punishment will be an immediate deportation to the person’s home country. On the other hand, if an Emirati commits the same crime, such a person will be sentenced to death. The fact that the country has embraced private international law creates a situation where same crime attracts different forms of punishment depending on one’s nationality.

The Universal Declaration of Human Rights, International Human Rights Law and International Human Rights Treaties are other significant legal influences that have defined the UAE’s legal system.¹⁶ These legal concepts define the basic human rights standards that must be observed by the government. It is the responsibility of the government to ensure that these international policies are integrated into its national legal system.

Super-national Law

According to Sgueo, the interconnectedness of states sometimes makes it necessary to come up with a regional tribunal that has jurisdiction in all the member states to help in addressing regional disputes in a uniform way.¹⁷ The United Arab Emirates is a member state of a number of regional and international bodies. One example is the Gulf Corporation Council, which brings together Qatar, Oman, Kuwait, Bahrain, the United Arab Emirates, and the Kingdom of Saudi Arabia¹⁸.

Each of these countries has their own constitutions that define their unique legal system. However, the corporation has made it possible for firms in these countries to trade regionally without facing any major state sanctions. It is normal to have cases where cross-national firms have disputes in such a setting. As such, the G.C.C. countries came up with G.C.C. Commercial Arbitration Center (G.C.C.C.A.C) to help in arbitrating legal disputes among cross-national firms.

As a member of GCC, it became necessary for the government to recognize this legal body in its constitution. The country constitution recognizes this body and acknowledges that it has the jurisdiction to over commercial cases in the region, especially when handling cases of companies operating in more than one country. Other new forces continue to influence the country’s legal system as it tries to ensure that it becomes relevant in the modern globalized society.

Family of UAE’s Legal System

According to Ismail, the world’s contemporary legal systems are based on any of the four basic systems, which include common law, civil law, religious law, and statutory law.¹⁹ These four families of legal system are common in different parts of the world based on a number of factors. A country’s unique history, socio-cultural practices, and interaction with the global society define the family to which its legal system belongs.

In a report by Tucker, common law is the most widespread in the world in terms of the number of people that apply it while civil law is widespread geographically in terms of the number of countries that have embraced it.²⁰ The United Arab Emirates legal system can be classified into the family of civil system and Islamic law. According to Tucker, the classification of the UAE’s legal system into a mix of both Islamic law and civil law can be attributed to its history, cultural practices, and the current trends in the modern society where its major cities such as Dubai have become home to foreigners coming to work, conduct business, or to tour the country.²¹

Islamic Law

When the United Arab Emirates became an independent country, one of the main issues that the leaders wanted addressed was to develop a constitution that is in line with the Islamic teachings. Under the British rule, the country had relied on the British common law to define its legal system. As a country dominated by Muslims and governed by Islamic leaders keen on observing teachings of Prophet Mohammed as outlined in the holy Quran, the government sponsored a major amendment of the constitution that ensured that Islamic law is integrated into the system. Islamic law is specifically strong when it comes to family law, relationships, dress code, and socio-cultural issues.²²

Although the leaders of the country appreciate that the world is increasingly becoming a global village where people all over the world can easily interact with one another, they were committed to retaining the social and cultural practices as taught in Quran. The western culture is becoming a strong influence in the country, especially among the younger generation.

Hamid says that not all western practices are evil as per the Islamic teachings.²³ However, there are practices such as homosexuality, indecent dress code by women, and public show of affection that are strictly prohibited in the Islamic teachings. It may not be easy to stop such practices by classifying them as moral ethics, which are encouraged, but do not carry punitive measures if violated.

To ensure that the Emiratis and foreigners staying in this country avoid such practices, some aspects of Islamic law have been embraced. It means that such practices are illegal and can attract varying degree of punishment. According to Hamid, the teachings in the Quran clearly outline the position of a man and a woman within a family.²⁴ Women are expected to be subordinate to their husbands or any other male guardian.

In a world that is increasingly influenced by the western culture, women are now demanding equal treatment as men. As a way of preserving its culture and religious beliefs, Islamic law has been introduced that clearly, outline the position of women in a family setting and how they are supposed to relate with men. The law helps in eliminating unnecessary conflicts. A number of Islamic principles have been introduced into the country’s legal system to help it protect its socio-cultural practices.

Civil Law

Civil law, especially the Egyptian civil law, has become very common in the United Arab Emirates. The governments of Dubai and Abu Dhabi have taken ambitious initiatives to diversify their economy to reduce overreliance on oil and gas industry. The country has taken measures to attract foreign investors, foreign experts, and tourists to help promote diversification of the economy. However, it is known to the government that foreigners may fear investing in the country or even visiting because of the strict Islamic teachings. As such, the government considered introducing some aspects of civil law that define private relations between members of its community, especially concerning trade.

The civil law makes it possible for businesspeople to operate in a legal environment that is not overburdened by some of the strict Islamic teachings. That is why many financial institutions charge interest on their products although the practice is considered illegal under Islamic law. Such flexibility where the legal system makes it easy for the foreigners to operate in the country without fear has been critical in promoting growth the country’s economy.

Purpose of Understanding UAE’s Legal System

The United Arab Emirates is becoming an economic powerhouse in the entire Asian continent. It is an important route for major Asian companies targeting the Middle East and African market. The country is also becoming a favorite global tourists’ destination center, having built the world’s tallest building (Burj Khalifa) and the largest man-made island (Palm Island). It is very important for foreigners coming into the country as tourists, businesspersons, or workers to understand the country’s legal system.

As a country governed partly by Islamic law, the foreigners must understand what is legal or illegal within the country. They must understand that some of the freedom that exists in their home countries may not apply in this country. The knowledge about the country’s legal system is particularly important for the foreign business community.

As Mikhail notes, a firm cannot survive in an environment that is not properly regulated.²⁵ It needs a legal environment that protects it and defines how it relates with the government, customers, suppliers, creditors, debtors, and competitors among other stakeholders.

However, the law used in the United States or United Kingdom is not the same as the law used in UAE. Before making a major investment, understanding the legal system is critical to avoid any misunderstandings or legal actions. Private Citizens coming to the country, especially the honeymooners from the west also need to be careful when touring cities such as Dubai and Abu Dhabi. They have to observe specific dress codes when going to some malls or visiting religious places. They should understand that it is illegal to show affection publicly such as hugging, kissing, or pecking. They must understand that such practices may cut-short their trip as they can easily be deported back to their home country.

How UAE Can Benefit from the Comparative Study

The United Arab Emirates has one of the fastest developing economies in the MENA region. A report by Howie ranks the country’s economy as the most competitive in the region, ahead of both Qatar and Saudi Arabia, in terms of attracting foreign investment and offering a conducive environment for trade.²⁶ This may be attributed to its massive investment in infrastructure, especially in the road and rail networks, airports and seaports, hospitals, schools, entertainment, and many other social amenities.

Global tourists, especially those coming from North America and Europe, currently rank the city of Dubai as one of their most preferred destinations. It means that the government is achieving success in its effort to attract foreign investors and to transform the country’s economy from one that relies on oil and gas exportation to one that relies on service industry. Movement from one part of the country has been made easy through road, rail, water, and air transport.

Its ICT, health, and education sectors are comparatively superior to that of its regional neighbors. As Howie puts it, the world is coming to Dubai, especially after it made a successful bid for the EXPO 2020.²⁷ However, the country must be ready to receive the world. One of the ways of doing so is to ensure that there is a legal system that can accommodate a highly diversified population without jeopardizing the country’s cultural values.

According to Banakar, UAE is governed by Islamic rulers and most of the Emiratis and expatriates living in the country are Muslims.²⁸ However, the trend that has been taken to diversify the country economy has seen some cities such as Dubai become global centers where strict Islamic laws may be a potential threat to its development. The comparative study is very important for the country because it clearly outlines the dilemma that it faces as it faces as it tries to attract foreign investment and diversify the economy. The most challenging stage of attracting the world’s attention to the country has been passed successfully with massive infrastructural development. However, the next stage is posing a new threat that the government and other stakeholders had not predicted.

Majority of foreign investors and tourists coming to the country are from the west. Their culture is very different from that of the Emiratis. In fact, it was in the interest of the country’s culture that Islamic law was embraced when the foreign rulers left.

However, a time has come when the foreigners are finding their way back into the country as investors, tourists, and expatriates. Their presence in the country is vital for the economy’s growth, especially as oil reserves are expected to dry up. However, they need a legal system that can accommodate their culture and way of life. That means going back on gains made when Islamic culture was introduced. The government may need to redefine its legal system, through such comparative studies, in a way that would accommodate these foreigners, but in a way, that preserves the culture of the country.

Conclusion

The legal system of a country defines how entities relate with the government, amongst themselves, and with people. As shown in the above discussion, the legal system of a country is often defined by the cultural practices, history, and influences from local and international forces. The United Arab Emirates’ legal system is based on both the Islamic law and common law that was practiced during the British rule before the country gained independence.

A number of forces such as international law and regional policies have also influenced the current legal system. The United Arab Emirates is also becoming a highly diversified country in terms of culture because increasing immigration and growing tourism industry. Diversity in the country is creating pressure on the government to review some of the strict Islamic laws to accommodate tourists and foreign investors.

Bibliography

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Banakar R, Normativity in Legal Sociology: Methodological Reflections on Law and Regulation in Late Modernity (Springer 2015).

Brown N, Constitutions in a Nonconstitutional World: Arab Basic Laws and the Prospects for Accountable Government (State University of New York Press 2012).

Capaldo G, The Pillars of Global Law (Taylor & Francis Group 2016).

Ercanbrack J, The Transformation of Islamic Law in Global Financial Markets (Cambridge University Press 2015).

Hamid S, Islamic Exceptionalism: How the Struggle Over Islam Is Reshaping the World (St. Martin’s Press 2016).

Howie G, The Middle East Crisis Can Be Solved: The Solution Has Been Right Under Our Noses the Whole Time (West Bow Pr 2014).

Ismail M, International Investment Arbitration: Lessons from Developments in the MENA Region (Taylor & Francis Group 2013).

Mikhail A, Water on Sand: Environmental Histories of the Middle East and North Africa (Oxford University Press 2012).

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Footnotes

1. Jonathan Ercanbrack, The Transformation of Islamic Law in Global Financial Markets (Cambridge University Press 2015) 8.
2. Ibid 12.
3. Ibid 18.
4. Ibid 26.
5. Elizabeth Thompson, Justice Interrupted (Harvard University Press 2013) 34.
6. Waleed Alhosani, Anti-Money Laundering: A Comparative and Critical Analysis of the UK and UAE’s Financial Intelligence Units (Palgrave Macmillan 2016) 13.
7. Ibid 44.
8. Ibid 34.
9. Ibid 52.
10. Giuliana Capaldo, The Pillars of Global Law (Taylor & Francis Group 2016) 21.
11. Ibid 23.
12. Ibid 43.
13. Nathan Brown, Constitutions in a Nonconstitutional World: Arab Basic Laws and the Prospects for Accountable Government (State University of New York Press 2012) 18.
14. Ibid 21.
15. Gianluca Sgueo, Beyond Networks – Interlocutory Coalitions, the European and Global Legal Orders (Springer International Publishing 2016) 41.
16. Ibid 44.
17. Ibid 67.
18. Ibid 92.
19. Mohamed Ismail, International Investment Arbitration: Lessons from Developments in the MENA Region (Taylor & Francis Group 2013) 33.
20. Ernest Tucker, The Middle East in Modern World History (Routledge 2013), 51.
21. Ibid 64.
22. Ibid 34.
23. Shadi Hamid, Islamic Exceptionalism: How the Struggle Over Islam Is Reshaping the World (St. Martin’s Press 2016) 79.
24. Ibid 101.
25. Alan Mikhail, Water on Sand: Environmental Histories of the Middle East and North Africa (Oxford University Press 2012) 88.
26. Gardner Howie, The Middle East Crisis Can Be Solved: The Solution Has Been Right Under Our Noses the Whole Time (West Bow Pr 2014) 78.
27. Ibid 82.
28. Reza Banakar, Normativity in Legal Sociology: Methodological Reflections on Law and Regulation in Late Modernity (Springer 2015) 91.