A triangle of pluralist norms at play : an analytical study of the debates of the Constituent Assembly, the Constitution of Kuwait and judgments of the Kuwait Constitutional Court

In 1962 Kuwait issued the first and only constitution of the state. Since then, a continuous debate has emerged between scholars, intellectuals, and even ordinary people regarding the position of each legal norm within the state. In particular, the debate revolves around the question of whether the various norms all possess equal legal status, or whether one norm has priority over the others. In this ongoing debate, the focus is almost always on the status of Shari’a. Therefore, an unresolved issue of pressing concern needs to be addressed: exactly what is the legal status of Shari’a within the Constitution of Kuwait? To answer this question, this thesis begins by examining the evolution of the legal norms during Kuwait’s history, from its foundation right up until the enactment of the current constitution. Second, it examines the legal status of the different norms in the state, especially Shari’a, through close scrutiny of the Constituent Assembly’s deliberations. Third, it investigates how the deliberations on the various legal norms that occurred in the Constituent Assembly were ultimately reflected in the Constitution of Kuwait, and whether the members of the Constituent Assembly achieved their aims and objectives in relation to their vision for those norms. Then it analyses the Kuwait Constitutional Court’s cases, with particular emphasis on Shari’a cases, since the status of Shari’a emerges from the early chapters as the only legal norm that is still surrounded by much uncertainty. Within this structure, the research employs the concept of legal pluralism as the main tool of analysis. Legal pluralism theory focuses on the relationship between different legal norms and how they coexist and overlap or conflict with one another. As such, the researcher decided that legal pluralism is the most appropriate theory to serve the research’s aims and objectives. The main finding to emerge from this thesis is that Shari’a as a legal norm is considered to be an overriding source in the legal system of Kuwait, even though the current situation in Kuwait does not seem to fully reflect that outcome. Recommendations for law reform, which are needed to ensure a more accurate reflection of both the Constitutional drafters’ intentions and the will of the Kuwaiti people, are included in the final chapter