Public Order and Its Impact on the Conflict of Laws: A Maqasidic Jurisprudential Study Based on Saudi Regulations

Abstract

This study examines the concept of public order and its impact on conflict of laws in legal relationships involving a foreign element through a jurisprudential and maqāṣid-based analysis in light of the Saudi legal system. It establishes the conceptual framework of public order and clarifies its legal and Sharia-based nature, highlighting its connection to the objectives of Islamic law as the supreme normative framework governing its function. The study addresses public order as a fundamental limitation on the application of foreign law and analyzes the criterion for its exclusion based on the doctrine of public order by result, which relies on assessing consequences and practical effects. It further examines the jurisprudential, statutory, and judicial foundations for prioritizing public order over private rights, establishing a hierarchical rule whereby national public order derived from Islamic law prevails over private rights arising from foreign law and international considerations, within the limits of non-conflicting peremptory international norms. The study also explores the relationship between public order and the authority of judicial decisions, subjecting the recognition and enforcement of domestic and foreign judgments to public order review by the forum state. Finally, the study applies these frameworks to matters of personal status and financial and commercial transactions, concluding that public order is not an instrument of exclusion but a balancing mechanism that promotes justice, preserves legal identity, and harmonizes legal openness with the objectives of Islamic law and national particularities.