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Author

Ali Alfaifi

Date of Award

12-2018

Author's School

School of Law

Degree Name

Doctor of Juridical Science (SJD)

Degree Type

Dissertation

Abstract

The judicial discretionary power comes to a head in problems concerning the independence of the judiciary, and the power of its decisions. Judicial discretion has been the subject of many ongoing debates to date. Proper and fair use of judicial discretion will contribute to the promotion of justice by allowing the judge or court to make an appropriate judgment in a case under its circumstances, especially in cases where the law is inadequate, ambiguous or silent. On the other hand, the abuse of judicial discretion may lead to unfair or unequal judgments for similar cases, and thus this will affect the process of justice and the reputation of the judicial system. Judicial discretion is necessary and inescapable, because the legislative authorities are unable to write laws that address all cases that come to court, since each case has its own surrounding circumstances, even if it seems similar to previous cases. Judicial discretion becomes important where judges preside over cases and focus on all the details and circumstances specific to those cases. Therefore, giving the judge some discretionary power to apply the law based on the facts and circumstances surrounding the case before him/her seems understandable, sensible and conducive to justice. Although researchers and specialists in justice emphasize the need to give the judge some discretionary power when considering cases and when making decisions, there is, however, a question that arises about the extent of this discretion. How can the judge's power be combined with the his or her judicial discretion when considering cases to ensure there are no negative effects on justice. Since judicial systems differ from state to state in terms of sources of justice, the qualification of judges, the method of their selection, etc., the studies of judicial discretionary power will be complex and important, and the solutions and proposals regarding the limits of judicial discretion in any system are of necessary different from other systems because of the distinctiveness of judicial systems in many ways. This research discusses the problem of the discretionary power given to judges under Saudi law in criminal cases and trying to find solutions to it. Beginning with a background, the researcher explores the Kingdom of Saudi Arabia and its constitution and authorities. The second chapter provides a general overview and summary of the legal system of the Kingdom of Saudi Arabia by providing a brief account of the legal status of the State from its founding to the present time. The researcher then discusses the Saudi Constitution and the Supreme Law, which is the Shari’a. This chapter includes the most important features of Shari’a and shed light on them clearly: the original sources of Shari'a, the secondary sources, Islamic schools of thought and how they originated, along with their most important assets and features. The fourth chapter presents the most important features of the Saudi judicial system, the most important stages of the Saudi judicial system from the establishment of the state to the present, especially King Abdullah's project to develop the judiciary system, the method of selecting judges, the sources used by a judge to make a decision, and other matters relating to the judicial system and the Saudi judge. The fifth Chapter discusses the Islamic Criminal law since the research seeks to restrict judicial discretionary power in criminal penalties. The sixth Chapter contains the recommendations and suggestions that will be submitted by the researcher in order to develop the Saudi judiciary and contribute to achieving more justice by restricting the judicial discretionary power in the criminal law.

Chair and Committee

Prof. Sunita Parikh, Committee Chair, Prof. Michael Koby, Prof. Peter Cramer, Prof. David Law, Former Committee Chair.

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