LEGAL TRANSPLANTS IN THE SAUDI ARABIAN BANKING SYSTEM:
THE EFFECTS OF WESTERN LAWS ON THE DEVELOPMENT OF THE SAUDI ARABIAN MONETARY AGENCY

Abstract

This thesis examines the principal legal transplants that established the central banking system in Saudi Arabia, beginning in 1952 with the founding of the Saudi Arabian Monetary Agency (SAMA), which involved transplanting banking and fiscal rules from the Common Law jurisdiction of the USA into a nation whose constitution is the Qur’an. Other significant developments are the Banking Control Law 1966 and the establishment of trade courts on the established Egyptian model, which was originally transplanted from the Civil legal roots of France. The contribution of legal transplants in the establishment of Saudi Arabia as an internationally recognised financial centre is examined through theoretical perspectives, starting with Alan Watson’s seminal 1974 work, extended rather than radically amended by later contributors to legal transplant theory. This study uses the PESTLE framework to analyse the functioning of legal transplants and their harmony with Islam in the evolution of the banking sectors of Saudi Arabia and other Islamic states. Malaysia and Turkey are noted as having successfully adopted Western banking institutions and their regulation, whereas Pakistan’s experience is assessed as a failure. The success of transplants in Malaysia, Turkey, and many Gulf neighbours of Saudi Arabia is ascribed to what Örücü calls ‘legal tuning’ and Teubner labels ‘autopoiesis’. Conversely, Pakistan’s retention of selective Islamic principles is seen to have created schisms when Western banking was introduced. In essence, the analysis suggests that for a legal transplant to become established and grow, it must be nurtured in its new conditions. Thus, transplanting Western laws into Islamic society requires conditions of harmonisation and support, rather than impediments to its operation. Transplants succeed if they act as ‘legal irritants’ and have the support of the legal elite. Recommendations for the future of legal transplantation in the Saudi banking sector are made in light of this analysis.