The Rule of Preference and its Applications in the Saudi Regulations; Law of Criminal Procedures as a Model

Abstract

While researching general rules and multiple measurements, the idea of balancing between general rules and sub-rules emerged, and the idea of exception consequently emerged followed by the rule of preference with its fundamental restrictions that the theorist or the judge uses in their quest to address newly developing issues. During the process of facing these emerging issues, the idea of formulating Sharia-based regulations also emerge. At the forefront of those regulations is the existing legislation in the Kingdom of Saudi Arabia. Based on the desire to track the substantive and formal types of exceptions in the Saudi system, the rule of preference in Islamic jurisprudence and its application in the Saudi law of criminal procedures was selected for research. The research aims at: 1. Proving the relationship between the regulations in the Kingdom and Islamic law. 2. highlighting the substantive and formal exceptions in the Saudi law of criminal procedures 3. Developing a research that will be a reference in this field 4. Opening the door for more research on the fundamental approach of regulations in the Kingdom The components of the research are the introduction which will be concerned with introducing the terminology in the title, namely the rule of preference and the law of criminal procedures in the Kingdom. The first theme: preference grounded in the legal text The second theme: preference grounded in interest The third theme: preference guided by necessity The fourth theme: preference guided by convention The application will be limited to the system of criminal procedures in the Kingdom of Saudi Arabia, and the researchers will not deviate unless there is a methodology-based need. Some of the research findings are: 1. The number of examples that I presented in the first three research themes was thirty-one, and I was unable to find a similar number for the last theme due to the lack of examples. 2. Preference grounded in legal text had a lot of illustrative examples because the Saudi law is keen on the rights of people. A lot of restrictions and exceptions were traced which aim at achieving justice. This follows a rule that says “No crime and punishment without reference to a legal text”. 3. The research found that the fundamental rule, when applied to the legal rule, gives the law-maker and the judge the ability to avoid formulation errors and, therefore, the ruling is perfectly issued with few gaps. 5. Convention has weak connection to criminal laws in all legislations, given that the law-maker ensures that all procedures are stipulated in order to prevent errors that are likely to happen.