1 Introduction
The Saudi judiciary is commonly described as one of the strongholds of WahhÄbÄ« Islam â a reform movement that was started by the eighteenth- century NajdÄ« preacher Muḥammad bin Ê¿Abd al-WahhÄb (d. 1792). Ibn Ê¿Abd al-WahhÄb called for the return to tawḥīd, the belief in the absolute singularity of God. He and his followers forbade the worshipping of Sufi graves and other practices that they considered forbidden innovations (bidÊ¿a, sing. bidaÊ¿) in the Islamic creed. The strict focus on tawḥīd served as the blueprint for Ibn Ê¿Abd al-WahhÄbâs idea of a perfect Islamic community. Around the year 1744, he famously made a deal with Muḥammad bin SaÊ¿Å«d (d. 1765), the chieftain of the small town of DarÊ¿iya in the center of the Najd, in order to establish a state that would bring the people of the Arabian Peninsula back to tawḥīd. This was the beginning of the institutionalization of what has since been known as âWahhÄbism.â
At the time of Ibn Ê¿Abd al-WahhÄb, the center of the Arabian Peninsula was forgotten by the big empires. Strategically of minor importance, it was left by the Ottomans to several local rulers who regularly engaged in feuds with each other.1 With the support of Ibn Ê¿Abd al-WahhÄbâs followers, Muḥammad bin SaÊ¿Å«dâs military and political influence rose. Eventually, his son Ê¿Abd al-Ê¿AzÄ«z bin Muḥammad for the first time unified the Najd under one reign. The kingdom flourished until Muḥammad bin SaÊ¿Å«dâs grandson, SaÊ¿Å«d bin Ê¿Abd al-Ê¿AzÄ«z conquered the ḤijÄz. The Ottoman rulers realized the threat that the Saudi emirate and its WahhÄbÄ« allies presented to the Ottoman sultanâs claim to protect the two holiest cities in Islam, Mecca and Medina. Ottoman troops attacked the Saudi emirate and eventually conquered the Najd. In 1818, the first Saudi state was defeated.2
What initially was a bond between a local ruler and an unconventional preacher had by that time already become a pact between two families that shapes Saudi Arabia until today. Although he had many disciples, Ibn Ê¿Abd al-WahhÄb preferred that his children and grandchildren carry on his legacy and gave them the best possible education.3 Over the next decades and centuries, his descendants held key positions in the kingdom and functioned as advisers and judges. They adopted the patronym Äl al-Shaykh, the âhouse of the shaykh.â When the second Saudi kingdom was founded, after the withdrawal of Ottoman troops from the Najd in 1824, it was the scholars from the house of the shaykh who legitimized the rule of King TurkÄ« bin Ê¿Abd AllÄh. When King Ê¿Abd al-Ê¿AzÄ«z finally unified the Arabian Peninsula again in 1932 and declared the third Saudi kingdom, scholars from Ibn Ê¿Abd al-WahhÄbâs family were once again in leading state positions.
Until today, the bond between the two families is very visible, especially in the legal system. For example, the current Grand Mufti Ê¿Abd al-Ê¿AzÄ«z bin Ê¿Abd AllÄh is a direct descendent of Ibn Ê¿Abd al-WahhÄb. However, whereas in the past, the scholarly discourse was dominated by members of the al-Shaykh family, the Saudi scholarly establishment today consists of members of many different NajdÄ« families. Nabil Mouline called this the democratization of the Saudi Arabian clerical corps.4 However, scholars from outside the Najd, especially from the ḤijÄz, remain underrepresented.5
This chapter explores how the WahhÄbÄ« tradition has developed in Saudi Arabia and how its key beliefs have redefined the authority and role of the schools of Islamic jurisprudence. We will put a special focus on how the WahhÄbÄ« and SalafÄ« roots of the Saudi judiciary are reflected in the way legal reasoning is understood and how this relates to the juristsâ understanding of pluralism in Islamic law.
2 WahhÄbism and Salafism
2.1 What Is WahhÄbism?
2.1.1 The Controversy Surrounding the Term WahhÄbism
Ibn Ê¿Abd al-WahhÄb never used the term WahhÄbism (wahhÄbiyya) to describe his movement. It is and was mostly a foreign appellation that was historically used by opponents of the movement. Later, the term continued to be used in a pejorative way. Muḥammad bin Ê¿Abd al-Laá¹Ä«f (d. 1921), one of the most prominent members of the al-Shaykh family at his time, complained that, for him, the problem with the term WahhÄbism did not lie in the association with Ibn Ê¿Abd al-WahhÄb, but in the fact that the term implied that the movement followed another authority than the Quran and the Sunna.6 This line of thought is still very present. The Saudi-based Syrian scholar á¹¢Äliḥ al-Munajjid, one of the most influential Muslim voices today, argued that since the movement would clearly not constitute a new madhhab, only ignorant people would use the term WahhÄbism.7
The movementâs adherents call themselves by different names that reflect their focus on tawḥīd. Most importantly, they use the term al-muwaḥḥidÅ«n, which can be translated as âmonotheistsâ.8 However, since all Muslims understand themselves as monotheists, the term al-muwaḥḥidÅ«n did not prove to be distinguishable. As a result, the movementâs followers increasingly accepted being called WahhÄbÄ«s by others.9 When Ibn BÄz (d. 1999) was asked about the term, he stated that, for him, WahhÄbism was, in fact, an honourable and acceptable description because it was the name of the people who call for tawḥīd.10 á¹¢Äliḥ al-FawzÄn even replied in a fatwa that it would be an honour to be called a WahhÄbÄ« since WahhÄbism was not more than the legitimate quest for tawḥīd.11 Nevertheless, even though some scholars accept being called WahhÄbÄ«s, Saudi Ê¿ulamÄʾ usually do not refer to themselves as WahhÄbÄ«s, and many still consider the term a misnomer.12
The controversy about the term WahhÄbism is reflected in the way Saudi kings referred to the movement. In 1929, King Ê¿Abd al-Ê¿AzÄ«z forbade the use of the name and replaced it, mostly for political reasons, with the then still less contentious term âSalafism.â13 By that time, the movement had gotten a bad image. Since the late nineteenth century, Ottoman propaganda and Western travellers had increasingly become aware of the movement and depicted them as bloodthirsty, ignorant, and fanatical Bedouins.14
Until today, Saudi leaders refrain from using the term WahhÄbism when they talk about law and religion in Saudi Arabia. In his famous interview with TIME magazine in 2018, Crown Prince Muhammad bin Salman said that there was no such thing as WahhÄbism in Saudi Arabia and stated that he would âneed someone to explain to me what are the teachings of WahhÄbism.â Instead of describing a particular set of beliefs, Muhammad bin Salman argued that the term was first used by extremists to legitimize themselves by creating a link to Saudi Arabia, and second by Iran, which claimed that Saudi Arabia had invented a different school of Sunni Islam. Muhammad bin Salman insisted in the interview that Saudi Arabia encourages and includes all schools of Islam, the four major schools of Sunni Islam and the various schools of Shia Islam.15 However, from an academic perspective, the teachings of Saudi Ê¿ulamÄʾ, as it will be shown presently, are undoubtedly influenced by the thought of Ibn Ê¿Abd al-WahhÄb and his followers.
2.1.2 The Teachings of Ibn Ê¿Abd al-WahhÄb
The Prophet Muḥammad had once said that Islam began as something strange and would become strange again.16 Ibn Ê¿Abd al-WahhÄb was convinced that it was in his times, the late 1700s, that Islam had, due to deviations from the Prophetâs original teachings, again turned into something strange.17 He saw himself as one of the ârenewersâ (mujaddidÅ«n, sing. mujaddid) of Islam, who according to a Prophetic hadith, appear at the turn of every century.18
Ibn Ê¿Abd al-WahhÄb is often described more as an activist than an intellectual. Although he was from a scholarly family, his writings are widely considered to lack originality. For instance, Nabil Mouline argued that Ibn Ê¿Abd al-WahhÄb did not change ḤanbalÄ« doctrine but only aimed to impose orthopraxy.19 Mouline claimed that â[h]is writings are a near systematic reprise of the classic ḤanbalÄ« corpus, his main contribution being to render this generally very elitist production accessible to a larger public.â20 Samira Haj criticized this common depiction of Ibn Ê¿Abd al-WahhÄb as a simple transmitter of ḤanbalÄ« thought as an oversimplification. She suggested that his originality lies not in the fact that he âinventedâ new ideas but in the way he referred to ideas that were already present in the Islamic tradition. Haj pointed out that Ibn Ê¿Abd al-WahhÄb did not just randomly pick quotes from medieval texts but that his thinking was expressed in the way he put together these ideas.21
In fact, Ibn Ê¿Abd al-WahhÄbâs theological and legal opinions differ in many aspects from traditional ḤanbalÄ« thought. For example, he was quick to declare others, even prominent Muslims, to be unbelievers whenever they did not follow his understanding of tawḥīd.22 Mainstream ḤanbalÄ«s, on the contrary, were very careful in doing so. Moreover, his stance against Sufi practices contradicted traditional ḤanbalÄ« doctrine, which was more tolerant.23 These deviations from traditional Ḥanbalism led to fierce disputes between him and other NajdÄ« and ḤijÄzÄ« Ê¿ulamÄʾ, among them many ḤanbalÄ«s.
David Commins called the association with the supposedly strict ḤanbalÄ« school âone of the myths about the WahhÄbÄ« tradition.â24 He pointed out that the most distinctive aspect of WahhÄbÄ« thought is that for Ibn Ê¿Abd al-WahhÄb, the mere claim of practising tawḥīd is not sufficient. The true Muslim, Ibn Ê¿Abd al-WahhÄb demanded, has to refute any object of worship other than God.25 From the WahhÄbÄ« perspective, whoever turns to holy men or saints for help or sacrifices animals for anybody other than God is an idolater (mushrik) and thus an unbeliever (kÄfir). Consequently, Ibn Ê¿Abd al-WahhÄbâs main aim was to fight popular practices that he considered idolatry (shirk), most importantly, the worshipping of tombs of saints.
Violence was a legitimate way for him to reach his goals. He justified the destruction of popular Sufi shrines, legitimized attacks on Muslims he considered idolaters, and had prisoners of war executed when they refused to adopt his understanding of Islam. One of the most problematic practices, in his opinion, was the prayer at the Prophetâs tomb, which he considered a violation of tawḥīd. Until today, scholars in Ibn Ê¿Abd al-WahhÄbâs tradition, like á¹¢Äliḥ al-Ê¿Uá¹£aymÄ«, a professor at Riyadhâs ImÄm University, call for the destruction of the tomb. In 2005, al-Ê¿Uá¹£aymÄ« prompted the Saudi authorities to demolish the tombâs dome. However, the jurists are aware that the tombâs destruction is refused by many Muslims, especially outside of Saudi Arabia. Therefore, the king, al-Ê¿Uá¹£aymÄ« wrote, should wait for a good opportunity to destroy the tomb in order to avoid unrest (fitna) among the Islamic community.26
2.1.3 The Difference between Law and Creed in Ibn Ê¿Abd al-WahhÄbâs Thought
When assessing Ibn Ê¿Abd al-WahhÄbâs teachings, we have to differentiate between his creed (Ê¿aqÄ«da) and his approach to jurisprudence (fiqh). Whereas the ḤanbalÄ« tradition remained important for Ibn Ê¿Abd al-WahhÄbâs understanding of creed, he held that the individual believer was free to follow the school of his choice in jurisprudence.27
But Ibn Ê¿Abd al-WahhÄbâs strict understanding of tawḥīd also has implications for the law.28 For him, idolatry not only has negative implications for the relationship between an individual and God but for the whole Islamic community. He considered law to be one of the foundations of the Islamic community and looked at it through the lens of his understanding of tawḥīd. As a result of the unconditional submission to God, all human-created aspects and categories of the law lose their authority.29
Accordingly, Ibn Ê¿Abd al-WahhÄb was suspicious of fiqh and its methodology, whereas he emphasized the role of the revelation. This scepticism resulted in a profound critique of the religious establishment of his times. He accused them of blindly following (taqlÄ«d) established opinions in jurisprudence. Ibn Ê¿Abd al-WahhÄb complained that the jurists took medieval legal opinions for granted and did not review whether they were actually in line with the Islamic revelation.30 The scholars should again engage in the study of Quran and Sunna and re-evaluate their teachings. At the same time, he was cautious in his call for independent legal reasoning (ijtihÄd) and never explicitly referred to himself as a mujtahid, a scholar capable of independent legal reasoning.31
Even though many NajdÄ« scholars refused his call, Ibn Ê¿Abd al-WahhÄbâs bond with the Saudi rulers helped him to spread his message. By the nineteenth century, his reformist movement dominated the religious and legal life in the Najd. With the Saudi conquest of the ḤijÄz in the 1920s, his followers encountered another intellectual movement in Islam, which surprisingly shared many of their key beliefs: modernist Salafism.
2.2 What Is Salafism?
2.2.1 The Two Forms of Salafism
Like WahhÄbism, Salafism (salafiyya) is a contentious term. Firstly, as Henri Lauzière pointed out, it describes not only one movement but very different understandings of Islam.32 Lauzière even argued that the question âWhat is Salafism?â could not be answered due to the conceptâs controversial nature, both in the primary and the secondary literature.33 Secondly, like WahhÄbism, the term Salafism is mostly a foreign appellation, which is refused by the majority of the people who are called Salafists. Thirdly, due to the rise of SalafÄ« jihadism, the term is increasingly linked with violence and terrorism.
Today, two main movements are commonly described as SalafÄ« in Western literature: modernist Salafism and purist Salafism. Even though both movements are very different in their goals and beliefs, they share a focus on the first three generations of Muslims, the salaf (often translated as the âpious predecessorsâ), which traditionally play an essential role in the Islamic tradition. According to a well-known account, the Prophet said that the best people were those of his and the two following generations.34
2.2.2 Modernist Salafism
The SalafÄ« movement started at the end of the nineteenth century, when Islamic scholars and activists, mostly from Egypt, engaged in a reinterpretation of the Islamic tradition. This movement is today known as the first salafiyya, or modernist Salafism. It is mostly associated with three scholars: JamÄl al-DÄ«n al-AfghÄnÄ« (d. 1897), Muḥammad Ê¿Abduh (d. 1905), and RashÄ«d Riá¸Ä (d. 1935). These Muslim intellectuals wanted to leave behind the rigid system of norms that Islam had, in their opinion, become and to renew Islam by thinking again like the salaf. For Ê¿Abduh, the salaf were not only the first three generations of Muslims, as it was commonly understood, but he used the term more broadly to describe the timeframe in which the fundamentals of Muslim thought were established. In his view, this period ended with the death of al-GhazÄlÄ« in 1111.35
The modernists questioned the authority of traditional Sunni teachings, which they considered backward and antiquated. Islamic teachings should be revived and brought in line with modernity,36 which made some of their ideas radical at the time. In his famous book The Liberation of the Woman (TaḥrÄ«r al-marʾa), QÄsim AmÄ«n, a companion of Muḥammad Ê¿Abduh, even argued that the veil was not mandatory for women but a non-Islamic custom that was adopted by Islam and framed religiously.37 Further, a strong sense of anticolonialism fueled the movementâs desire to modernize Islam. Throughout the nineteenth century, European influence had risen in the Arab world, and secular ideas and laws spread in the region. The modernist SalafÄ«s hoped that a reform of Islam could help to overcome the European domination of the region and restore the leading role of the Islamic community. To achieve the desired renewal, modernist SalafÄ«s called to end the blind imitation (taqlÄ«d) of established opinions in law and creed and advocated for a new interpretation (ijtihÄd) of the sources of Islam. Their goal was a more rational religion. However, from the perspective of the orthodoxy, this meant moving away from the revelation.
Even though Ê¿Abduh and his circle spoke of a revival of the salaf, they did not adopt the label salafiyya themselves.38 For centuries, to follow the salaf was a common and favourable description for an Islamic scholar. However, this did not evoke adherence to a particular movement in Islam. Lauzière pointed out that Salafism as a conceptual construct was created after Ê¿Abduhâs death in the early twentieth century by Western orientalists like Louis Massignon (d. 1962). Later, Islamic scholars absorbed the orientalistsâ concept and used it in their writings.39
From the 1920s onwards, many of the modernist SalafÄ«s began to follow a more literalist approach to Islam. Most prominently, RashÄ«d Riá¸Ä, one of Ê¿Abduhâs closest companions, turned away from the speculative theology of Ê¿Abduh and started to sympathize with the WahhÄbÄ«s. In his writings, he tried to rehabilitate the WahhÄbÄ« movementâs adherents who, as we have seen, had a reputation for being religious fanatics. When the Ottoman caliphate ended in 1924, Riá¸Ä and others looked for new Islamic leadership and found it in the Saudi king Ê¿Abd al-Ê¿AzÄ«z. Riá¸Ä established close connections to the WahhÄbÄ« establishment in the kingdom, and many of his students started to teach at universities in the ḤijÄz and engaged in fierce debates with WahhÄbÄ« scholars.40
Although, at first glance, the WahhÄbÄ« tradition and modernist Salafism depart from different presumptions, their views are often surprisingly similar. For example, both reject superstitious beliefs, albeit for other reasons. Whereas the WahhÄbÄ«s regard superstitious beliefs as a violation of tawḥīd, modernist SalafÄ«s dismiss them as irrational and primitive. Riá¸Äâs students, many of whom followed their teacherâs literalist understanding of Islam, differed from the WahhÄbÄ«s not so much in their creed but more in their approach to modernity.41 Scholars from the Najd had a notorious reputation for their scepticism towards modern science. In the 1920s, many WahhÄbÄ«s still held that the earth was flat, and in 1966, Ibn BÄz famously claimed that the sun orbited the earth, contrary to established scientific evidence.42
2.2.3 Purist Salafism
The interaction between modernist SalafÄ«s and traditional WahhÄbÄ«s led to a movement that is commonly described as the second salafiyya, or purist Salafism. It is important to note that in this context, my use of âpurismâ does not imply a normative claim but refers to these SalafÄ«sâ typical preoccupation with the unadulteratedness of Islamic teachings and practices.43 From the 1970s on, purist Salafism almost entirely superseded modernist Salafism, and many of its concepts and ideas became part of mainstream Islam.44 Both forms of Salafism share the idea that Islam must be reformed by focusing on the model of the Prophet and his early followers. However, in contrast to modernist reformers, purists not only want to use the first generations as a model for reform but aim to imitate them in any way possible. Instead of just rehabilitating their way of thinking, the salaf should become role models for every aspect of life.
Because of its focus on religious purity, purist Salafism does not seem to differ much from the WahhÄbÄ« tradition at first sight. This similarity has led scholars to question the originality of purist Salafism.45 However, many famous twentieth-century SalafÄ«s substantially disagreed with the more traditional WahhÄbÄ« doctrine. A good example is Muḥammad NÄá¹£ir al-DÄ«n al-AlbÄnÄ« (d. 1999), one of the most prominent purist SalafÄ«s. Originally from a working-class family in Damascus, al-AlbÄnÄ« soon became known for his strict emphasis on the Prophetic tradition. He developed a new methodology for the analysis of ḥadÄ«th transmission by focusing on the transmitterâs reliability. In 1961, Ibn BÄz invited him to Saudi Arabia, where al-AlbÄnÄ« taught at the University of Medina. Once in Saudi Arabia, his controversial views clashed with the NajdÄ« establishment. This was not surprising since al-AlbÄnÄ« had declared the miḥrÄb a forbidden innovation and claimed that Muslims could pray in a mosque with their shoes on.46 When he published a book in which he argued against the veiling of womenâs faces, he had to leave Saudi Arabia.47 However, despite his disputes with the WahhÄbÄ« establishment, al-AlbÄnÄ« gained a large following in Saudi Arabia. He and his followers were critical of the religious aristocracy of the NajdÄ« WahhÄbÄ«s, who had built their own networks and developed their own tradition and canon of literature. Despite the opposition of part of the religious establishment, al-AlbÄnÄ«âs opinions became prominent, and today he is considered a respectable scholar in Saudi Arabia and is regularly cited in legal literature.
The views of Saudi jurists today resemble more purist Salafism than traditional WahhÄbism. Their approach to Islamic law reflects the influence that modernist Salafism had on WahhÄbÄ« thought throughout the second half of the twentieth century, as most Saudi scholars have moved away from antimodern WahhÄbÄ« ideas. The vast majority today, as we will see in the next chapters, embrace modern technology and, to some extent, accept new social developments. Even though today purist Salafism is still associated with Saudi Arabia, its mission to spread a purist understanding of Islam outside the kingdom has been successful. Purist groups are now on the rise globally. This was especially visible in Egypt when the purist SalafÄ« Ḥizb al-NÅ«r (The Party of Light) became Egyptâs second most popular political party after the revolution of February 2011.48
We have seen that the goal of purist Salafism is a revitalization of Islam by strictly following the model of the Prophet Muḥammad. Next, we will look in more detail at how this has influenced the ways in which Islamic law is conceptualized.
3 Law in WahhÄbÄ« and SalafÄ« Thought
3.1 School Coherency
Modernist SalafÄ«s were not so much interested in the technicalities of Islamic jurisprudence but concerned with the overall reformulation of the foundations of Islam. Even though many modernist SalafÄ«s were trained Islamic scholars, they were not jurists in the narrow sense of the word. Ê¿Abduh, for example, was criticized for using the terms qÄnÅ«n (usually understood as positive law) and sharÄ«Ê¿a interchangeably.49 Even though at first sight, this seems to be a terminological question with little practical relevance, the use of the terms, as we have seen in the last chapter, has implications for the way the relationship between Islamic and positive law is understood.
Since the focus of purist Salafism is on the correct following of Islamic law, even minor questions of Islamic jurisprudence are given great importance. As a result, purist Salafīs focus much more on fiqh and ḥadīth than modernist Salafīs. The purists not only put a stronger emphasis on the law but also have a distinct understanding of fiqh. This is reflected in their approach to the schools of Islamic jurisprudence.50
Purist SalafÄ«s claim to only follow the practices of the salaf.51 Muslims should not cling to any of the legal schools but build their reasoning directly on the primary sources. Purist SalafÄ«s like Ibn BÄz argue that since the madhÄhib and their institutionalization of dissent were created after the first generations of Muslims, they are generally not binding.52
Contemporary SalafÄ« scholars usually distinguish between the âschool of the salafâ (madhhab al-salaf) and the âmethod of the salafâ (manhaj al-salaf).53 They prefer to speak of Salafism as a method (manhaj), since the notion of a school would imply that they follow a specific group or sect of Islam and not the pure teachings of the Quran and the Sunna. By calling Salafism a method, they thus prevent being accused of violating their own strict understanding of tawḥīd.
The purist SalafÄ« approach to the madhÄhib has its roots in the ḤanbalÄ« tradition. Like premodern ḤanbalÄ« scholars, contemporary SalafÄ«s are traditionally much more interested in ḥadÄ«th studies than in judicial reasoning.54 Aḥmad bin Ḥanbal, the schoolâs founder, considered himself more a ḥadÄ«th scholar than a jurist and explicitly disapproved the institutionalization of the schools.55 He even tried to avoid his views becoming authoritative by not allowing his students to write down his legal opinions.56 Many scholars in his tradition nevertheless developed a madhhab thinking comparable to that prevailing in other schools. For jurists like Ibn QudÄma57 (d. 1223), the opinions of earlier scholars became an essential point of reference.
The Saudi scholarsâ opposition against the madhÄhib stems from another line of tradition in the ḤanbalÄ« school, most prominently from the thought of Ibn Taymiyya. Like Ibn Ḥanbal, Ibn Taymiyya was critical of clinging to a single school. In one of his fatwas, he stated:
If a man follows AbÅ« ḤanÄ«fa, MÄlik, ShÄfiÊ¿Ä«, or Aḥmad [bin Ḥanbal], and thinks that in some questions, another school would be preferable and follows it, [then] this might be better. This does not infringe on his religion, nor his integrity [Ê¿adÄla], without question. It is even the most proper [way]. This is more affectionate towards God and His Prophet than to take the side of someone specific other than the Prophet.58
Even though the scepticism towards the schools predates modernity, it was in the wake of modernity that the critique of the legal schools became more popular, not only among Ibn Ê¿Abd al-WahhÄb and his followers in the Najd. One of the most famous voices against the legal schools was the Yemeni reformer al-ShawkÄnÄ« (d. 1834), who advanced the idea that no madhhab should be followed in the Arab world.59
Even though Salafīs deny their binding authority, the schools continue to play an important practical role in Salafī jurisprudence, in particular as a tool to structure legal reasoning. Saʿd al-Shithrī, for example, contended that although the schools were not binding for the individual believer, they did offer a vehicle for education and the systematization of knowledge.60
In their legal reasoning on a specific issue, Saudi jurists almost always refer to all four schools. Usually, they present the established opinions in the schools before weighing (tarjīḥ) them by analyzing the presented arguments and the textual references to the revelation.
Another popular claim of SalafÄ« scholars is that they would look beyond the four major schools of law. However, in fact, the only other school that is regularly referred to in SalafÄ« jurisprudence is the almost extinct áºÄhirÄ« school. For example, TaqÄ« al-DÄ«n al-HilÄlÄ« (d. 1987), an influential student of RashÄ«d Riá¸Ä, admired the áºÄhirÄ« school for its devotion to a literalist approach and its refusal of taqlÄ«d.61
The influence of Ibn Ḥazm, the most prominent áºÄhirÄ« today, is very visible in the Saudi legal discourse. Even though he is rarely cited in court decisions, Saudi scholars often think of him and the áºÄhirÄ«s as the fifth school of jurisprudence. One example of this is the debate on the maximum length of pregnancy. Whereas premodern scholars of all four major schools held that women could be pregnant for two or four years or even longer, Ibn Ḥazm criticized the jurists for relying on unreliable reports about prolonged pregnancies and maintained that the maximum length of pregnancy was one year.62 Although this still exceeds the actual average length of pregnancy, many Saudi jurists today refer to Ibn Ḥazm in order to bring their legal reasoning in line with modern science.63
3.2 The Acceptance of Normative Pluralism
The SalafÄ« critique of the schoolsâ binding authority breaks with traditional understandings of authority in Islamic jurisprudence. Without the limitation to the established schools, diverse opinions can stand side by side. This leads to what I call the normative pluralism in SalafÄ« jurisprudence: a multitude of equally recognized but possibly contradicting legal opinions. Normative pluralism should not be confused with legal pluralism. Whereas legal pluralism describes the parallel existence of several normative systems,64 normative pluralism refers to a variety of accepted norms that can be found in a single normative system.
The roots of the juristsâ acceptance of normative pluralism lie in the foundations of Islamic jurisprudence. According to a popular narration, the Prophet Muḥammad said that the disagreement (ikhtilÄf) in his community was a mercy of God.65 Finally, the respect for normative pluralism also derives from the fundamental Islamic principle that no human should stand between the believer and God.66
Regarding law and legal reasoning, this entails two important aspects: Firstly, human legal reasoning cannot be absolute. âThe respect for normative pluralism (ikhtilÄf),â as Baber Johansen pointed out, âis possible only because the fiqh scholars conceive an ontological difference between the knowledge as revealed by God in Koranic texts, the Prophetâs praxis, or the communityâs consensus on the one hand, and the knowledge which human beings acquire through their own reasoning.â67 Human reasoning can thus never reach the level of âtrueâ knowledge, which is restricted to God, whereas the Islamic communityâs consensus (ijmÄÊ¿) is located somewhere between human and Godly knowledge. Although the consensus stems from human efforts, it has been raised to the level of âtrueâ knowledge, since the Prophet, among other things, declared that his followers would never agree on the wrong.68 As a result, all legal reasoning is necessarily subjective.69
Secondly, the immediacy between the believer and God hinders the development of an Islamic clergy that, similar to the Catholic Church, could elaborate binding interpretations for all Muslims based only on its structural religious authority. The idea that all human action and reasoning is contingent thus forms the basis of Islamic jurisprudence and the institution of the schools.70 Some Islamic scholars have even argued that contradicting legal opinions should not only be respected, provided that they are derived through the methods of Islamic jurisprudence, but that every legal question has many equally correct answers. If God had wanted the jurists to be united, they claimed, he would have sent them clear textual evidence.71
Although the normative pluralism of Islamic legal thinking is acknowledged by Western scholars of Islamic law, purist SalafÄ«s or WahhÄbÄ«s are often excluded. For example, in an influential article on the SalafÄ« movement, Quintan Wiktorowicz claimed that by focusing on the strict following of the Quran and the Sunna, SalafÄ«s âeliminate the biases of human subjectivity and self-interest, thereby allowing them to identify the singular truth of Godâs commands.â Consequently, he asserted that, âfrom this perspective, there is only one legitimate religious interpretation; Islamic pluralism does not exist.â72 Wiktorowicz concluded that, in practice, purist SalafÄ« jurisprudence does nothing more than to ânarrowly rel[y] on the Quran and authentic (sound or verifiable) hadiths.â73
While Wiktorowiczâ assessment might be accurate for SalafÄ« creed, where there is, as we have seen, less space for pluralism, it is less convincing when it comes to the law. Legal reasoning in Saudi Arabia, which he considered the origin and promotor of SalafÄ« beliefs and jurisprudence,74 is much more complex. In fact, the Saudi scholarsâ dismissal of school coherency makes them much more open to normative pluralism in law than is widely imagined. The general acceptance of plural legal opinions not only exists in practice, as we will see in the upcoming chapters, it is also openly admitted by Saudi Ê¿ulamÄʾ.
Ibn BÄz acknowledged the advantages of normative pluralism in one of his fatwas. When asked about the soundness of the Prophetâs account that pluralism was a mercy of God, he replied:
This is not true, it is not a word of the Prophet, but it is from some of the second generation of Muslims [tÄbiÊ¿Å«n]. The Prophet did not say this. Some of the tÄbiÊ¿Å«n said: I saw the companions [aṣḥÄb] of the Prophet disagree, only for Godâs mercy. This means: The mujtahid looks into it and considers the textual evidence [dalÄ«l]. In the pluralism [ikhtilÄf] of the scholars [Ê¿ulamÄʾ] lie benefits [maá¹£Äliḥ] for the Muslims, even though consent is preferable and better. In consent lies mercy and blessing, as God says: âThey will not cease to differ, except whom your Lord has given mercyâ [HÅ«d 118â19]. Mercy is within unity. However, if there is a question on which there is disagreement between the scholars, the jurist has to look into the textual evidence [dalÄ«l] and has to undertake ijtihÄd by weighing between [the opinions] that are based on the evidence. He must not be lenient in this matter and not careless, but look into the evidence of the sharÄ«Ê¿a, and what he considers preponderant is what should be worked with, no matter if there are two, three, or four opinions on this question, he studies the textual evidence in the verses [of the Quran] and the accounts [of the Prophet] with open eyes. He stays away from personal affection [hawa] and fanaticism [taÊ¿aṣṣub].75
Here, Ibn BÄz presented the ideal type of SalafÄ« legal reasoning, whereby normative pluralism is considered necessary and beneficial. At first, all opinions should be considered, no matter from which school they originate. The work of the jurist now lies in verifying the opinions that are presented by the schools. Wiktorowicz was right when he argued that SalafÄ« jurisprudence was particularly strongly connected to the revelation. However, this does not mean that the acceptance of normative pluralism inherent in Islamic law is abolished. Instead, it serves as a map for the jurist in his search for the opinion that he finds is most in accordance with the primary sources. Normative pluralism thus lies at the heart of the SalafÄ« concept of law; it is the starting point for the juristâs ijtihÄd.
4 The Debate on IjtihÄd
4.1 What Is IjtihÄd?
Whilst ijtihÄd is understood, both in Western scholarship and in Islamic legal writings, very broadly as the juristâs effort to find a solution to a particular legal question,76 its nature remains one of the most controversial topics in Islamic jurisprudence. To better understand what the term means in the Saudi context, we have to keep in mind that ijtihÄd refers to two different levels of legal interpretation: the âbasicâ level and the âparticularâ level.77 The basic level consists of debates over fundamental concepts of Islamic jurisprudence, whereas the particular level comprises discussions on specific rulings inside each school. Since it is often unclear to which level of ijtihÄd an author is referring, the unreflected use of the term has, as Montgomery Watt pointed out, led to many misunderstandings.78
At the center of the controversy surrounding ijtihÄd lies the idea of the closing of the âgate to ijtihÄdâ (bÄb al-ijtihÄd).79 Western scholars, most famously Joseph Schacht, forwarded the idea that Islamic jurists around the ninth century started to feel that all essential questions in Islam had been answered by their predecessors and concluded that all that was left for them to do was the mere application and interpretation of the established doctrine.80 This was the time when the gate of ijtihÄd was supposedly closed and the age of taqlÄ«d (commonly translated as âimitationâ) began, in which the existing corpus of jurisprudence was supposed to be accepted and replicated.81
The underlying assumption of this narrative is that Islamic law became static and thus unavailable for new interpretations, a notion that was, as we have seen, very present among modernist Islamic scholars in the late nineteenth century. The idea that there was no innovation in Islamic law after a certain time period has, among other things, its roots in the epistemology of premodern Islamic law. As Bernhard Weiss pointed out, premodern Muslim jurists never considered themselves to be inventing rules. Instead, their exercise of premodern ijtihÄd meant articulating what had already been decided by God but remained concealed to humans.82
But the closure of the gate of ijtihÄd was largely a myth: Wael Hallaq showed that ijtihÄd was prevalent in Islamic legal theory as well as in the juristsâ practice throughout time and was considered a crucial element of Islamic law.83 However, even though Hallaq was the first to emphasize that the closure of the gate of ijtihÄd was more theory than actual practice, earlier writers were also aware of this. Schacht himself, for example, stated that later Islamic jurists were in practice not less creative than their predecessors.84
Premodern jurists supporting taqlÄ«d were often reacting to practical demands. Sherman Jackson showed that some jurists viewed taqlÄ«d positively as a tool to stabilize the schoolsâ inner coherence, which helped secure their authority.85 Similarly, Muhammad Fadel suggested seeing taqlÄ«d as a way to standardize Islamic law. He argued that taqlÄ«d is âbest understood as an expression of the desire for regular and predictable legal outcomes,â86 similar to European notions of the rule of law.
With the advent of modernity and the influence of new epistemologies on Islamic scholars, the prevailing understanding of ijtihÄd changed. Aria Nakissa argued that premodern Islamic jurisprudence was based on a linguistic conception of knowledge and should, therefore, âmore accurately [be] understood as being similar to language.â87 According to Nakissa, premodern Muslim jurists held that âjust as there is no progress or creativity in grammar, there is none in law.â88 Premodern Islamic education, Nakissa asserted, combined the teaching of law with that of language. Both areas, the Ê¿ulamÄʾ believed, involved the mastery of a specific corpus of rules. An Islamic scholarâs proficiency was not judged according to his production of original works but his mastery of the already established rules. However, this is not to say that Muslim jurists did not acknowledge that the law was developing. When circumstances changed or new legal questions arose, they used the established methodology of Islamic jurisprudence to develop an answer.89 Yet, for them, the task of a jurist was not to change the doctrine.
Beginning in the nineteenth century, the foundations of legal training changed. Natural science, with its strong belief in progress, introduced the idea that legal knowledge could be advanced.90 This meant that legal reasoning was not anymore about adopting established rulings to changing circumstances but about the introduction of new concepts. A successful jurist now formulated new ideas based on his original thinking. Nakissa concluded that this change of epistemes led to the conception in Western oriental literature and modernist Islamic writings that premodern Islamic law lacked dynamism and innovation.91
At this time, ijtihÄd became associated with law reform. Muslim reformers used established terms like ijtihÄd to frame their efforts within the tradition of Islamic jurisprudence. The South Asian intellectual and politician Muhammad Iqbal (d. 1938), for instance, understood ijtihÄd as a thoroughgoing rethinking of the corpus of Islamic jurisprudence.92 IjtihÄd was now not anymore restricted to technical legal questions but signified the fundamental re-evaluation of Islam, most notably in the fields of education, authority, and the state.
Today, this notion of ijtihÄd is still very present among Muslim reformers. However, at the same time, the term continues to have many different meanings. While many associate ijtihÄd with Islamic reform, it is also used as a legal technical term, both in contemporary Islamic jurisprudence and positive law. In most Arab countries, the word is also used to describe the secular courtsâ legal reasoning. For instance, decisions of the Syrian High Court (Maḥkamat al-Naqá¸) are usually called ijtihÄdÄt.93 Furthermore, ijtihÄd is today not anymore limited to Islamic scholars. In Egypt, the constitutional court explicitly granted the legislator the right to undertake ijtihÄd in disputed questions of Islamic jurisprudence.94
4.2 IjtihÄd in the Saudi Context
When Saudi scholars write or speak about ijtihÄd, their understanding of the term resembles Nakissaâs description of premodern Islamic jurisprudence. While Saudi jurists acknowledge that the law has to be adapted to modern circumstances, they avoid giving the impression that they create new rulings. This is coherent with the SalafÄ« idea that any kind of innovation (bidaÊ¿â) in Islam should be rejected.
For Ibn Khunayn, for instance, ijtihÄd is not more than the simple application of Islamic legal methodology through the scholarâs legal reasoning. Consequently, in his view, it is and was possible at any time to undertake ijtihÄd.95 However, whereas other scholars held that the scope to undertake ijtihÄd narrowed over the centuries, Ibn Khunayn argued that ijtihÄd was, in fact, much easier today. In early Islam, the Quran and the Sunna were not yet wholly compiled, and the basic methodology of Islamic jurisprudence was not yet developed. Thus, the deduction of rules from the sources, Ibn Khunayn claimed, was much more complicated than today.96 He quoted the medieval ḤanbalÄ« scholar Ibn ḤamdÄn (d. 1296), who wrote that already in his times, in the thirteenth century, ijtihÄd had become much easier to master than in earlier periods due to the availability of literature.97
Since the corpus of Islamic jurisprudence and its sources can be easily accessed today, Ibn Khunayn demanded that judges and scholars should undertake ijtihÄd in their work and not rely on taqlÄ«d. Most importantly, Ibn Khunayn called upon the Ê¿ulamÄʾ to address new legal questions (nawÄzil) that are raised by modern life. Although this resembles the modernistsâ call to bring Islamic law in line with modernity, Ibn Khunayn did not question the established methodology of Islamic jurisprudence but wanted to adapt the law by using the traditional corpus of Islamic jurisprudence. Especially in the context of new legal questions, Ibn Khunayn emphasised that ijtihÄd could also be undertaken collectively by a group of scholars (ijtihÄd jamÄÊ¿Ä«).98
Ibn Khunaynâs approach is a good example of contemporary Saudi legal methodology. Contrary to the extreme social conservatism that dominated the WahhÄbÄ« tradition, Ibn Khunayn is generally open to new technical and social developments, provided they are in line with the basic tenets of Islamic law. On the other hand, he emphasized the importance of premodern Islamic legal methodology and its strict adherence. For him, the revitalization of Islamic law through ijtihÄd signifies the correct application of the established teachings, which, in his view, have been neglected for a long time. When we later turn to Saudi case law, we will see that even though the judges follow a grammar-like application of the law similar to Ibn Khunayn, their critical attitude towards the schools leads to surprising results that often resemble the opinions of modernist scholars.
4.3 Who Is a Mujtahid?
Despite their scepticism towards taqlÄ«d, Saudi scholars do not allow everyone to undertake ijtihÄd. Due to the importance of legal methodology, they restrict the right to ijtihÄd to people formally trained in Islamic jurisprudence. For instance, SaÊ¿d al-ShithrÄ« contended that it was forbidden for people not trained in the principles of Islamic jurisprudence (uṣūl al-fiqh) to give a ruling, even if they present the textual evidence in the revelation (dalÄ«l) for their decision.99 Al-ShithrÄ« followed a very narrow understanding of ijtihÄd. For example, whereas most scholars hold that the determination of the qibla before prayer by a lay Muslim would already constitute a form of ijtihÄd, al-ShithrÄ« did not consider this an ijtihÄd. He maintained that only a ruling that was given by trained Ê¿ulamÄʾ who have reached the level of a mujtahid could be considered an ijtihÄd, such as, for example, the determination of the qibla by a trained scholar.100
The question of who is a mujtahid, namely a jurist who is allowed to undertake ijtihÄd, was intensively debated by premodern Islamic scholars. The majority opinion in Islamic jurisprudence, including in the ḤanbalÄ« school, requires a judge to be a mujtahid in all fields of the law.101 As we have seen, the SalafÄ« tradition gives particular importance to ijtihÄd, and it is thus not surprising that Saudi scholars, too, generally require a judge to be a mujtahid.
However, to be called or to call oneself a mujtahid implies that one is in the line of the great scholars of Islam, a claim that could be seen as presumptuous. This difficulty is nicely illustrated by a statement made by Ibn Khunayn during an interview in August 2018. After we had talked for over an hour about more detailed aspects of Islamic law, I asked him whether he would allow a personal question. âPlease, go onâ, he replied. âAre you a mujtahid?,â I asked. Ibn Khunayn laughed and said no. âNot even within the school?â He smiled and said, âMaybe within the school, maybe.â102 This did not come as a surprise to me since during an earlier meeting, Ibn Khunayn had already made fun of a first-instance judge who did not want to accept the appeal courtsâ comments on his judgements because he claimed to be a mujtahid.103 Although Ibn Khunaynâs statement could be dismissed as false modesty, his comments show that the office of a judge does not automatically mean that someone is recognised as a mujtahid.
The question of how to appoint judges if there are no or only a few scholars available that are widely considered mujtahids was already debated by premodern jurists. In order to come up with a pragmatic solution, some Ê¿ulamÄʾ argued that exceptions from the general rule could be made under certain circumstances. For instance, the sixteenth-century ḤanbalÄ« jurist al-ḤajjÄwÄ« (d. 1560) stated,
There are ten requirements for judgeship: [a judge] has to be mature, sane, and male, free, [â¦], a mujtahid, if only in the school of his ImÄm, in case of necessity, picked [according to his] eloquence and care, or a muqallid [a scholar only able to undertake taqlÄ«d].104
In Saudi Arabia, jurists have developed a similar solution for the scarcity of mujtahids. Muḥammad al-ZuḥaylÄ«, a renowned Syrian scholar with links to Saudi Arabia, wrote in 1982 that although the premodern scholars considered the capability to undertake ijtihÄd a requirement to become a judge, the Saudi king would only be obliged to appoint the best available person as a judge. Al-ZuḥaylÄ« traced this opinion back to Aḥmad bin Ḥanbal.105 In 2009, Ê¿Abd al-Ê¿AzÄ«z al-MashÊ¿al, a professor at the ImÄm University in Riyadh, argued in a similar fashion that a non-mujtahid could work as a judge in case no mujtahid is available.106 He referred to the ḤanbalÄ« jurist Ibn Mufliḥ (d. 1362), who stated that from his perspective, the Ê¿ulamÄʾ agreed on this compromise.107
To cope with the scarcity of mujtahids, the majority of premodern scholars accepted that a judge is only a mujtahid in some areas of the law or in one of the schools.108 The schools developed sophisticated hierarchies of jurists, with several ranks between a mujtahid who is not restricted to any school (mujtahid muá¹laq) and a muqallid. These hierarchies are supposed to regulate the limits of a scholarâs competences.109 While the details vary from school to school, the general idea is that a jurist can be a mujtahid in only one of the schools if he studied the schoolsâ authoritative scholars, learnt their rulings, and mastered their way of legal reasoning.110 Alternatively, a scholar can be a mujtahid only, for example, in inheritance law, provided that he has extensively studied that area, but would remain a muqallid in all other areas of the law.
This division of mujtahids allows Saudi scholars to uphold the requirement that a judge should be a mujtahid, at least to some degree. SaÊ¿d al-ShithrÄ« held that this division of ijtihÄd was necessary today because of the high degree of specialization in contemporary Islamic jurisprudence.111 Due to the complexity of todayâs life, jurists could no longer have in-depth knowledge of all areas of the law.
Ultimately, the question of whether a judge must be a mujtahid muá¹laq, a mujtahid in only one school, or not a mujtahid at all, is largely symbolic.112 The Saudi king simply has to appoint the most qualified person as judge, whether he is recognised as a mujtahid or not. Although most of Saudi jurists do not consider themselves to be mujtahids, we will see in the course of the next chapters that Saudi judges of all levels of experience and knowledge undertake ijtihÄd, even beyond school boundaries.
5 The Saudi Judiciary and the Ḥanbalī School
5.1 The Role of the Schools in Early Twentieth-Century Saudi Arabia
Although Ibn Ê¿Abd al-WahhÄb rejected their binding authority, he did not completely refuse the four major schools of law.113 Later NajdÄ« scholars were even less critical of the schools, and some openly followed ḤanbalÄ« law. In 1926, Ibn Bulayhid, one of the most influential NajdÄ« scholars of his times, wrote that although people in the Najd were SalafÄ« in creed, they followed ḤanbalÄ« law.114 The predominance of ḤanbalÄ« law can also be seen in the education of NajdÄ« scholars. The former Grand Mufti Muḥammad bin IbrÄhÄ«m (d. 1969), for example, was educated in Islamic law by primarily studying al-ḤajjÄwÄ«âs áºÄd al-mustaqniÊ¿, an abridgement of the classical ḤanbalÄ« compendium Al-MuqniÊ¿ by Ibn QudÄma.115 From the early twentieth century onwards, the Saudi judiciary gradually opened itself to other schools of law. In 1927, King Ê¿ Abd al-Ê¿AzÄ«z proclaimed,
The sharīʿa court is not limited to a particular school of law but decides according to what the court endorses from any of the schools. There is no difference between one school and the other.116
Seven years later, in 1934, the king issued a similar statement:
We are not limited to one school. When we find strong textual evidence (dalÄ«l) in one of the four schools, we refer to it and stick to it. However, if we do not find strong proof, we use the opinion of ImÄm Aḥmad.117
In 1937, King Ê¿Abd al-Ê¿AzÄ«z wrote in the spirit of Ibn Ê¿Abd al-WahhÄb that he was not against the schools as such but only against following a single school of jurisprudence.118
In practice, however, the Saudi judiciary still had to follow the ḤanbalÄ« opinion in most questions. On 10 September 1928, the Highest Judicial Authority (al-Hayʾa al-Qaá¸Äʾiyya) circulated their decision that âthe judiciary must apply the followed opinion (al-muftÄ bihi) in the school of ImÄm Aḥmad bin Ḥanbal, considering the ease of consulting the schoolâs books.â119 However, if âthe judges find that the application [of the ḤanbalÄ« opinion] is inconvenient (mashaqqa) and contradicts the public interest (maá¹£laḥat al-Ê¿umÅ«m), it is looked at the remaining schools [and considered] what suits the interests (maá¹£laḥa).â
The decree by the Highest Judicial Authority listed two books by the seventeenth-century scholar Manṣūr al-BahÅ«tÄ« (d. 1641),120 which judges had to use to determine the correct ḤanbalÄ« opinion. Both books by al-BahÅ«tÄ« are commentaries on handbooks (mukhtaá¹£arÄt, sing. mukhtaá¹£ar) of ḤanbalÄ« doctrine, the first on al-Futūḥīâs (d. 1564) MuntahÄ al-irÄdÄt, and the second on al-ḤajjÄwÄ«âs (d. 1560) Al-IqnÄÊ¿. The decree further stipulated that if the two books disagree, the judge has to follow the opinion found in al-BahÅ«tÄ«âs commentary of the MuntahÄ. In case the judge did not have access to any of the two books, he could also use another commentary by al-ḤajjÄwÄ« (áºÄd al-mustaqniÊ¿) as well as the today lesser-known DalÄ«l al-á¹Älib by al-KarmÄ« (d. 1624).121 Only if the judge could not find a ruling on the issue in the mentioned ḤanbalÄ« books was he allowed to turn to books from other schools. However, the availability of books at the time must have limited the extensive use of any non-ḤanbalÄ« opinions, since even ḤanbalÄ« books were scarce, especially in the Najd. It is reported that before 1926, even Ibn QudÄmaâs Al-MughnÄ«, one of the most authoritative books in the ḤanbalÄ« school, could not be found as a complete copy in the whole Najd.122
The decree thus not only bound the judges in most questions to the ḤanbalÄ« school but even to certain books inside the school. In 2012, Ḥasan bin Muḥammad Safar, a lecturer in siyÄsa sharÊ¿iyya from Jeddah, argued that the decree was intended as an alternative to codification, an issue that, as we will see in Chapter 7, was debated at that time.123 What is rather certain is that the decree did not constitute a significant rupture in the courtsâ workings, as the majority of judges seemed to have accepted the decision. This is illustrated by later decisions of appeal courts that revoked court decisions on the grounds that they had been issued contrary to the mainstream opinion in the ḤanbalÄ« school.124
In 1936, the Saudi-Lebanese diplomate FuʾÄd Ḥamza (d. 1951) observed that judges used, in addition to the two commentaries by al-BahÅ«tÄ«, four other books in their everyday practice: the IqnÄÊ¿ by al-HajjÄwÄ«, the MuntahÄ al-irÄdÄt by al-Futūḥī (which both form the basis of al-BahÅ«tÄ«âs commentaries mentioned in the 1928 decree), the MughnÄ« by Ibn QudÄma and the Sharḥ al-kabÄ«r by Ibn QudÄmaâs nephew, Ê¿Abd al-RaḥmÄn bin QudÄma (d. 1283).125
5.2 Are Judges Still Bound to the Ḥanbalī School?
Whether and, if so, to what extent the 1928 decree still applies, and Saudi judges are bound to the ḤanbalÄ« school is still debated among Saudi scholars. In 2000, members of the Council of Senior Scholars mentioned a case that supposedly occurred in 1967 in Riyadh. According to the Councilâs members, the Riyadh Court of Appeal (at the time called Hayʾat al-TamyÄ«z) overruled a decision for being contrary to ḤanbalÄ« doctrine, and Muḥammad bin IbrÄhÄ«m, at the time Grand Mufti, apparently backed this decision with a fatwa.126 In another case, to which the Councilâs members referred, the appeal court argued that the first instance judge was a muqallid and, therefore, a verdict issued by him that deviates from his school could be overruled.127
The common understanding in the Saudi judiciary today is that the judges gradually moved away from the ḤanbalÄ« School in the decades after the 1928 decree.128 Muḥammad bin IbrÄhÄ«m al-SaÊ¿Ä«dÄ«, a professor at the Umm al-QurÄ University in Mecca, argued that the judges felt the need to adapt the law to the economic and social changes in Saudi Arabia and saw themselves as obliged to undertake ijtihÄd outside the ḤanbalÄ« school whenever they felt capable of doing so.129 Similarly, Ḥamd al-Khuá¸ayrÄ«, a well-known judge at the Riyadh Court of Appeal and author of a book on Saudi court practice, claimed that the inclusion of non-ḤanbalÄ« opinions was a natural and necessary process in order to adapt the law to the changing needs and demands of the Saudi people.130 For others, the opening towards other schools is a result of the SalafÄ« understanding of Islamic law. Qays Äl MubÄrak, for instance, a member of the Council of Senior Scholars, held that judges departed from ḤanbalÄ« teachings whenever they found that it contradicted the textual evidence in the revelation or saw a benefit in following another school in a particular legal question.131
Due to the scarcity of historical sources, the reasons for the inclusion of non-ḤanbalÄ« teachings are difficult to assess. However, as we will see in the coming chapters, the application of non-ḤanbalÄ« opinions in Saudi court practice is a reality today. Yet, at the same time, late Ḥanbalism still plays an important role in the everyday work of Saudi judges. This is reflected in the judgesâ use of fiqh books and manuals.
5.3 The Judgesâ Use of ḤanbalÄ« Literature
The books of the ḤanbalÄ« school still remain important in Saudi court practice, especially those mentioned by FuʾÄd Ḥamza in 1936. To give an example, al-BahÅ«tÄ« was still the most cited scholar in the law of sales (bayÊ¿a), according to the published court judgements of the hijrÄ« year 1434 (2012/2013). Thirty-one percent of all references to fiqh literature were made to his books KashshÄf al-qinÄÊ¿, Al-RawḠal-murbiÊ¿ and Sharḥ al-muntahÄ. Twenty percent were references to books by Ibn QudÄma, and fourteen percent to books by Ibn Taymiyya and his student Ibn al-Qayyim. The rise of the influence of Ibn Taymiyya and Ibn al-Qayyim in Saudi court practice thus seems to be one of the most significant changes that occurred between the 1930s and 2010s.
The published court judgements from the hijrÄ« year 1435 (2013/2014) paint a similar picture. According to a list made by the collectionâs editors, al-BahÅ«tÄ«âs KashshÄf al-qinÄÊ¿ and Ibn QudÄmaâs Al-MughnÄ« were by far the most used books. Even though they mostly consulted ḤanbalÄ« books, the judges additionally referred to a huge variety of books from all madhÄhib in their judgements. In the 1,153 published court decision, Saudi judges referred to sixty-three different fiqh books, of which the large majority were written by premodern jurists. Only nine books (14%) by nineteenth- and twentieth-century jurists were cited, most of them written by NajdÄ« scholars. Thirty-two books (52%) were premodern works from the ḤanbalÄ« tradition, twelve books (19%) stem from the MÄlikÄ« school, five books (8%) from the ShÄfiÊ¿Ä« school, and only three books (5%) were written by ḤanafÄ« jurists. One judge (2%) cited Ibn Ḥazm, the most famous proponent of the áºÄhirÄ« school. The popularity of MÄlikÄ« books is surprising, especially compared to the limited use of works by nineteenth- and twentieth-century scholars.132
In their everyday practice, Saudi judges very rarely consult many books to find the proper ruling for every single case. The huge workload, I heard from Saudi judges, made extensive research in every case impossible. Furthermore, as we will see in more detail in Chapter 5, the judges have agreed among themselves to apply the same ruling in many disputed questions in Islamic jurisprudence.
When I visited Saudi courts in the summer of 2018, it was surprising how few books could be seen, especially in the appeal court judgesâ offices. Appeal court judge Ḥamd al-Khuá¸ayrÄ«, for example, only had a copy of the first compilation of Saudi court judgements and an old edition of Ibn QudÄmaâs Al-MughnÄ« in his office.133 Al-Khuá¸ayrÄ«âs colleague Muḥammad JÄr AllÄh explained that he did not use any legal books in his daily practice at court.134 On an average day, there was simply no time to consult them. Thus, the judgesâ everyday work is, to some extent, detached from the detailed debates in Islamic jurisprudence. In difficult cases, however, JÄr AllÄh said that he took the files home and conducted research in his private library.135 Many lawyers work similarly. For example, one lawyer from Riyadh explained that there was no need for extensive use of fiqh books in his daily practice. However, in difficult questions, he consulted the published court decisions and sometimes also premodern fiqh books.136
None of the published decisions cited Ibn Ê¿Abd al-WahhÄbâs writings, which is not surprising, given that explicit references to Ibn Ê¿Abd al-WahhÄb in the Saudi legal discourse are rare. If scholars make a reference to Ibn Ê¿Abd al-WahhÄb, it is in preambles or introductions to books or fatwa collections. For instance, on a rare occasion, the Council of Senior Scholars mentioned Ibn Ê¿Abd al-WahhÄb in the introduction to their influential decision on codification, but they only briefly referred to his call for tawḥīd and did not further engage with his ideas.137
6 Conclusion
Acceptance of pluralism in Islamic law might be one of the last things that come to mind when one thinks about contemporary Salafism. Yet, normative pluralism and the critique of the schoolsâ authority is one of the main aspects in which the SalafÄ«sâ strict focus on the revelation and their refusal of any interference between humans and God is reflected in the law. When deciding on a legal question, the ideal SalafÄ« scholar considers all opinions in the schools and, through his ijtihÄd, determines the correct one for the individual case.
In practice, however, Saudi judges are more pragmatic. Although they consult books from all madhÄhib in some challenging legal questions, in most judgments, the judges only refer to a handful of classic ḤanbalÄ« books.138 Nevertheless, legal flexibility remains one of the fundamental concerns of Saudi scholars and judges when they think about the law.
For an overview of the situation in the Najd before Ibn Ê¿Abd al-WahhÄb, see David Commins, The Wahhabi Mission and Saudi Arabia (London: I.B. Tauris, 2006), 7â10.
Ibid., 37.
Mouline, Clerics of Islam, 69.
Ibid., 171.
According to Nabil Mouline, seventy-three percent of the Council of Senior Scholarsâ members between 1971 and 2010 were of NajdÄ« origin. Mouline, Clerics of Islam, 181.
Ê¿Abd al-RaḥmÄn bin Muḥammad bin QÄsim, Al-Durar al-saniyya fÄ« al-ajwiba al-najdiyya (N.p, 1417/1996), 1:566.
Al-Munajjidâs fatwa page islamqa.info is constantly ranked as one of the most visited websites on Islam worldwide. The fatwa can be accessed through the website, see bit.ly/2uBDTsS [last access: 28 January 2020].
Ê¿Abd AllÄh bin á¹¢Äliḥ al-Ê¿UthaymÄ«n, Al-Shaykh Muḥammad bin Ê¿Abd al-WahhÄb: ḤayÄtuhu wa-fikruhu (Riyadh: DÄr al-Ê¿UlÅ«m, 1406/1986), 103.
Mouline, Clerics of Islam, 9.
An audio recording of the fatwa can be found on binbaz.org.sa, bit.ly/2RDOJYh [last access: 29 January 2020].
An audio recording of the fatwa can be found on YouTube, www.youtube.com/watch?time_continue=10&v=u2MeW1CN1A4&feature=emb_title [last access: 29 January 2023].
Ê¿Abd AllÄh bin Muḥammad al-Ê¿Abd al-Laá¹Ä«f, DaÊ¿ÄwÄ al-munÄwiʾīn li-daÊ¿wat al-shaykh Muḥammad bin Ê¿Abd al-WahhÄb: Ê¿ArḠwa-naqḠ(Riyadh: DÄr Ṭayba li-l-Nashr wa-l-TawzÄ«Ê¿, 1409/1989), 76.
Mouline, Clerics of Islam, 9, 111.
Ibid., 107.
The interview can be found on TIME magazineâs website, time.com/5228006/mohammed -bin-salman-interview-transcript-full [last access: 30 January 2023].
Al-TirmidhÄ«, JÄmiÊ¿ al-TirmidhÄ« (Riyadh: Bayt al-AfkÄr al-Dawliyya, 1424/2003), 426 (Nr. 2629).
Commins, Wahhabi Mission, 16.
AbÅ« DÄwÅ«d, Sunan AbÄ« DÄwÅ«d (Damascus: DÄr al-RisÄla al-Ê¿Älamiyya, 1430/2009), 6:349 (Nr. 4291).
Mouline, Clerics of Islam, 62.
Ibid., 67.
Haj, âReordering Islamic Orthodoxy,â 340.
Ibn Ê¿Abd al-WahhÄb even declared his own brother SulaymÄn an unbeliever, because he was critical of Ibn Ê¿Abd al-WahhÄbâs teachings, Commins, Wahhabi Mission, 22.
For example, one of Ibn Ê¿Abd al-WahhÄbâs earliest critics, the ḤanbalÄ« scholar al-ṬandatÄwÄ«, was a member of a Sufi á¹arÄ«qa, see Samer Traboulsi, âAn Early Refutation of Muḥammad ibn Ê¿Abd al-WahhÄbâs Reformist Views,â Die Welt des Islams 42, no. 3 (2002), 380.
Commins, Wahhabi Mission, 12.
Ibid., 7â10.
á¹¢Äliḥ Al-Ê¿Uá¹£aymÄ«, BidaÊ¿ al-qubÅ«r: AnwÄÊ¿uha wa-aḥkÄmuha (Riyadh: DÄr al-Faá¸Ä«la, 1426/ 2005), 253; Today, the question whether the tomb of the Prophet should be destroyed is discussed in the context of siyÄsa sharÊ¿iyya. See, for example, Al-Ê¿UtaybÄ«, MaqÄlÄt fÄ« al-siyÄsa al-sharÊ¿iyya, 81â83.
Mouline, Clerics of Islam, 65.
Haj, âReordering Islamic Orthodoxy,â 339.
Ibid., 343.
Ibid., 340.
Guido Steinberg, Religion und Staat in Saudi-Arabien: Die wahhabitischen Gelehrten 1902â1953 (Würzburg: Egon Verlag, 2002), 313.
See Lauzière, Making of Salafism, 2.
Ibid., 14.
Al-BukhÄrÄ«, á¹¢aḥīḥ al-BukhÄrÄ« (Damascus: DÄr Ibn KathÄ«r, 1423/2002), 1601 (Nr. 6428).
Albert Hourani, Arabic Thought in the Liberal Age, 1798â1939 (Cambridge: Cambridge University Press, 1983), 230.
I understand modernity as the set of technologies and modes of organization that originated in eighteenth- and nineteenth-century Europe.
QÄsim AmÄ«n, TaḥrÄ«r al-marʾa (Cairo: Muʾassasat al-ḤindÄwÄ«, 2016), 39.
Frank Griffel, âWhat Do We Mean by âSalafÄ«â? Connecting Muḥammad Ê¿Abduh with Egyptâs NÅ«r Party in Islamâs Contemporary Intellectual History,â Die Welt des Islams 55, no. 2 (2015), 202.
Henri Lauzière, âThe Construction of Salafiyya: Reconsidering Salafism from the Perspective of Conceptual History,â International Journal of Middle East Studies 42, no. 3 (2010), 370, 380â81.
Lauzière, Making of Salafism, 60â94.
Ibid., 80.
Ê¿Abd al-Ê¿AzÄ«z bin Ê¿Abd AllÄh bin BÄz, Al-Adilla al-naqliyya wa-l-ḥissiyya Ê¿alÄ imkÄn al-á¹£uÊ¿Å«d ilÄ al-kawÄkib wa-Ê¿alÄ jarayÄn al-shams wa-l-qamr wa-sukÅ«n al-arḠ(Riyadh: Maktabat al-RiyÄḠal-ḤadÄ«tha, 1982).
See Lauzière, Making of Salafism, 4â6.
Ibid., 25.
Nabile Mouline, for example, described contemporary Saudi scholars as Ḥanbali- WahhÄbis, see Mouline, Clerics of Islam, 10.
Stephane Lacroix, âAl-Albaniâs Revolutionary Approach to Hadith,â ISIM Review 21 (2008): 6.
Ibid., 7.
See Griffel, âWhat Do We Mean by âSalafÄ«â?â, 186â220.
Leonard Wood, Islamic Legal Revival: Reception of European Law and Transformations in Islamic Legal Thought in Egypt, 1875â1952 (Oxford: Oxford University Press, 2016), 60.
The rejection of the schools is one of the main criticisms that traditional scholars have made against SalafÄ« Ê¿ulamÄʾ. The Syrian scholar Muḥammad SaÊ¿Ä«d Ramaá¸Än al-BÅ«á¹Ä«, for example, wrote a book, in which he called the rejection of the schools (al-lÄmadhhabiya) the most dangerous innovation that threatens Islamic law today. See Muḥammad SaÊ¿Ä«d Ramaá¸Än al-BÅ«á¹Ä«, Al-LÄmadhhabiyya: Akhá¹ar bidÊ¿a tuhaddidu al-sharÄ«Ê¿a al-islÄmiyya (Damascus: DÄr al-FÄrÄbÄ«, 1426/2005).
Lauzière, Making of Salafism, 8.
Recorded fatwa of Ibn BÄz. Available on binbaz.org.sa, bit.ly/3alNft9 [last access: 17 January 2023].
Lauzière, Making of Salafism, 225â26.
Griffel, âWhat Do We Mean by âSalafÄ«â?,â 208.
Christopher Melchert, Ahmad ibn Hanbal (Oxford: Oneworld Publications, 2006), 79.
Christopher Melchert, The Formation of the Sunni Schools of Law, 9thâ10th Centuries C.E. (Leiden: Brill, 1997), 14.
Here, and throughout the book, I am referring to Muwaffaq al-DÄ«n bin QudÄma al-MaqdisÄ«, who is commonly known simply as Ibn QudÄma. There are, however, other great ḤanbalÄ« scholars stemming from the QudÄma lineage, including Ibn QudÄmaâs nephew Ê¿Abd al-RaḥmÄn bin QudÄma (d. 1283).
Ibn Taymiyya, MajmÅ«Ê¿at al-fatÄwÄ, 22:248.
Griffel, âWhat Do We Mean by âSalafÄ«â?,â 205.
Saʿd al-Shithrī emphasized this in a TV interview, which is available on YouTube, www.youtube.com/watch?v=P-TP5To7pbs, min 3 [last access: 29 January 2023].
Lauzière, Making of Salafism, 158.
Ibn Ḥazm, Al-MuḥallÄ bi-l-athÄr (Beirut: DÄr al-Kutub al-Ê¿Ilmiyya, 1425/2003), 10:133. For the debate on the maximum length of pregnancy see Dominik Krell, âSaudi Arabia,â in Filiation and the Protection of Parentless Children: Towards a Social Definition of the Family in Muslim Jurisdictions, ed. Nadjma Yassari, Lena-Maria Möller, and Marie-Claude Najm (The Hague: T.M.C. Asser, 2019), 304â308.
We will discuss the debate on the maximum length of pregnancy in more detail in Chapter 7.
See John Griffiths, âWhat is Legal Pluralism?â Journal of Legal Pluralism 24 (1986): 2.
Today, some scholars question the authenticity of this ḥadÄ«th. Al-AlbÄnÄ«, for example, noted that whenever scholars in the past attempted to link the ḥadÄ«th to a reliable chain of transmitters (isnÄd), they were unable to do so. Muḥammad NÄá¹£ir al-DÄ«n al-AlbÄnÄ«, Silsilat al-aḥÄdÄ«th al-á¸aÊ¿Ä«fa wa-al-mawduÊ¿a (Riyadh: Maktabat al-MaÊ¿Ärif, 1412/1992), 1:141.
Wael Hallaq, SharÄ«Ê¿a: Theory, Practice, Transformations (Cambridge: Cambridge University Press, 2009), 78â83.
Baber Johansen, Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh (Leiden: Brill, 1999), 65â66.
Ibn MÄjah, Sunan Ibn MÄjah (Cairo: DÄr IḥyÄʾ al-Kutub al-Ê¿Arabiyya, n.d.), 2:1303 (Nr. 3950). For an overview of the concept of consensus in Islamic law see Mairaj Syed, IjmÄÊ¿, in The Oxford Handbook of Islamic Law, ed. Anver Emon and Ahmed Rumee (Oxford: Oxford University Press, 2018), 271â98.
See Norbert Oberauer, âWahrheitssuche und âMut zur Hölleâ: Zum Problem juristischen Entscheidens im Islam,â in Religion und Entscheiden: Historische und kulturwissenschaftliche Perspektiven, ed. Wolfram Drews, Ulrich Pfister, and Martina Wagner-Egelhaaf (Baden-Baden: Ergon, 2018), 151.
See also Johansen, Contingency, 65â66.
Khaled Abou El Fadl, Speaking in Godâs Name: Islamic Law, Authority, and Women (London: Oneworld Publications, 2001), 306.
Quintan Wiktorowicz, âAnatomy of the Salafi Movement,â Studies in Conflict & Terrorism 29 (2006): 207.
Ibid., 209.
Ibid., 221.
A transcript of the audio recording of the fatwa can be found on binbaz.org.sa, bit.ly /2yRBHyY [last access: 21 April 2023].
See for example Ê¿Abd AllÄh bin Muḥammad Äl Khunayn, Tawṣīf al-aqá¸iya fÄ« al-sharÄ«Ê¿a al-islÄmiyya (Riyadh: DÄr Ibn al-Farḥūn, 1434/2014), 1:353.
This division was introduced by Montgomery Watt. See Montgomery Watt, âThe Closing of the Door of iǧtihÄd,â Orientalia Hispanica 1 (1974): 678.
Ibid., 678.
For a more detailed discussion of the different perspectives on the closure of the gate of ijtihÄd see Shaista Ali-Karamali and Fiona Dunne, âThe Ijtihad Controversy,â Arab Law Quarterly 9, no. 3 (1994).
Joseph Schacht, An Introduction to Islamic Law (Oxford: Clarendon, 1982), 70â71. Others date the assumed closure of the gate of ijtihÄd to the fourteenth century. See Count Léon Ostrorog, The Angora Reform: Three Lectures Delivered at the Centenary Celebrations of University College (London: University of London Press, 1927), 31.
Schacht, Introduction to Islamic Law, 71.
Weiss, âInterpretation in Islamic Law,â 200. Like Schacht and later Hallaq, Weiss concluded that the gate of ijtihÄd was never fully closed despite the juristsâ reluctancy to engage in ijtihÄd.
Wael Hallaq, âWas the Gate of Ijtihad Closed?,â International Journal of Middle East Studies 16, no. 1 (1984): 4.
Schacht, Introduction to Islamic Law, 73.
Sherman Jackson, Islamic Law and the State: The Constitutional Jurisprudence of ShihÄb al-DÄ«n al-QarÄfÄ« (Leiden: Brill, 1996), 227.
Mohammad Fadel, âThe Social Logic of TaqlÄ«d and the Rise of the Mukhtaá¹£ar,â Islamic Law and Society 3, no. 2 (1996), 197.
Aria Nakissa, âAn Epistemic Shift in Islamic Law: Educational Reform at al-Azhar and DÄr al-Ê¿UlÅ«m,â Islamic Law and Society 21 (2014), 246.
Ibid., 212.
Ibid., 223.
Ibid., 213.
Ibid., 244.
Muhammad Qasim Zaman, âEvolving Conceptions of IjtihÄd in Modern South Asia,â Islamic Studies 49, no. 1 (2010): 15.
See for example MaḥmÅ«d ZakÄ« Shams, IjtihÄdÄt al-hayʾa al-Ê¿Ämma li-maḥkamat al-naqḠ(Damascus: Maá¹baÊ¿at al-DÄwÅ«dÄ«, 2008).
Kilian Bälz, âThe Secular Reconstruction of Islamic Law: The Egyptian Supreme Constitutional Court and the âBattle over the Veilâ in State-Run Schools,â in Legal Pluralism in the Arab World, ed. Baudouin Dupret, Maurits Berger, and Laila al-Zwaini (The Hague: Kluwer Law International, 1999), 237.
Äl Khunayn, Tawṣīf al-aqá¸iya, 1:361.
Ibid.
However, the jurists of his times, Ibn ḤamdÄn complained, neglected their responsibilities and had âlittle ambition and languid desireâ for ijtihÄd, since they had become âsatisfied with imitation (taqlÄ«d), had no need for substantiated labor, [and] were running away from [their] burden,â see Ibn ḤamdÄn, á¹¢ifat al-fatwÄ wa-l-muftÄ« wa-l-mustaftÄ« (Damascus: Al-Maktab al-IslÄmÄ«, 1380/1960), 17.
Äl Khunayn, Tawṣīf al-aqá¸iya, 1:362.
See SaÊ¿d bin NÄá¹£ir al-ShithrÄ«, Sharḥ al-waraqÄt fÄ« uṣūl al-fiqh (Riyadh: DÄr KunÅ«z IshbÄ«liyÄ, 1425/2004), 185.
Al-ShithrÄ« emphasized this in the second episode of his lecture series Manhaj al-ijtihÄd wa-l-taqlÄ«d. The lecture series is available on YouTube, see www.youtube.com/watch?v=-vQHLeKV4oo&t=192s, min 3 [last access: 21 April 2023].
Ê¿Abd al-Ê¿AzÄ«z bin Ê¿Abd al-RaḥmÄn al-MashÊ¿al, âShará¹ al-ijtihÄd fÄ« man yalÄ« al-qaá¸Äʾ,â Majallat al-Ê¿Adl 34 (1430/2009): 114.
Interview with Ibn Khunayn in his house in Riyadh, 1.8.2018.
Interview with Ibn Khunayn in his house in Riyadh, 24.4.2018.
Al-ḤajjÄwÄ«, Al-iqnÄÊ¿ (Beirut: DÄr al-MaÊ¿rifa, n.d.), 4:398.
Muḥammad bin Muá¹£á¹afÄ al-ZuḥaylÄ«, Al-TanáºÄ«m al-qaá¸Äʾī fÄ« fiqh al-islÄmÄ« wa-taá¹bÄ«quhu fÄ« al-Mamlaka al-Ê¿Arabiyya al-SaÊ¿Å«diyya (Damascus: DÄr al-Fikr, 1402/1982), 60.
Al-MashÊ¿al, âShará¹ al-ijtihÄd,â 126.
Ibn Mufliḥ, al-MardÄwÄ«, and al-BaÊ¿lÄ«, KitÄb al-FurÅ«Ê¿ wa-maÊ¿hu taṣḥīḥ al-furÅ«Ê¿ wa-ḥÄshiyyat Ibn Qaldas (Beirut: Muʾassasat al-RisÄla, 1424/2003), 11:104â6.
The majority of ḤanafÄ« scholars, however, did not require the judge to be a mujtahid, provided that he can consult a mujtahid if needed. See al-MashÊ¿al, âShará¹ al-ijtihÄd,â 114â15.
See Mohammad Fadel, âThe Social Logic of TaqlÄ«d and the Rise of the Mukhtaá¹£ar,â Islamic Law and Society 3, no. 2 (1996): 200.
For more details, see Norman Calderâs analysis of al-Nawawiâs Typology of Muftis. Norman Calder, âAl-NawawÄ«âs Typology of MuftÄ«s and Its Significance for a General Theory of Islamic Law,â Islamic Law and Society 3, no. 2 (1996): 145.
Second episode of al-ShithrÄ«âs lecture series Manhaj al-ijtihÄd wa-l-taqlÄ«d. The lecture series is available on YouTube, see www.youtube.com/watch?v=-vQHLeKV4oo&t=192s, min 7 [last access: 29 October 2022].
Historians of Islamic Law have made similar observations in premodern jurisprudence. Muhammad Fadel argues that the primary function of the hierarchy of jurists was the regulation of communication to a non-legal audience. See Fadel, âSocial Logic of TaqlÄ«d,â 200.
Commins, Wahhabi Mission, 20.
Lauzière, Making of Salafism, 93.
Additionally, he was tutored by three local NajdÄ« scholars and studied the creed of Ibn Ê¿Abd al-WahhÄb with his uncle Ê¿Abd AllÄh bin Ê¿Abd al-Laá¹Ä«f Äl al-Shaykh. See Muḥammad bin Ê¿Abd al-RaḥmÄn al-QÄsim, ed., FatÄwÄ wa-rasÄʾil samÄḥat al-shaykh Muḥammad bin IbrÄhÄ«m bin Ê¿Abd al-Laá¹Ä«f Äl al-Shaykh (Mecca: Maá¹baÊ¿at al-ḤukÅ«ma bi-Makka Mukarrama, 1399/1979), 1:10.
The proclamation is printed in Muḥammad bin BarrÄk al-FawzÄn, Al-TanáºÄ«m al-qaá¸Äʾī al-jadÄ«d fÄ« al-Mamlaka al-Ê¿Arabiyya al-SaÊ¿Å«diyya (Riyadh: Maktabat al-QÄnÅ«n al-Iqtiá¹£Äd, 1431/2010), 58.
Printed in Ibid., 58.
Ê¿Abd al-RaḥmÄn bin Muḥammad Ibn QÄsim, Al-Durar al-saniyya fÄ« al-ajwiba al-najdiyya (N.p, 1417/1996), 14:401â2.
The decree is printed in Al-FawzÄn, Al-tanáºÄ«m al-qaá¸Äʾī, 62â64.
Little is known about al-BahÅ«tÄ«, except that he was one of the last great representatives of the ḤanbalÄ« school in Egypt. Henri Laoust described al-BahÅ«tÄ«âs works as âdevoid of any great originality on the part of the author.â However, his works remain among the most cited books in Saudi jurisprudential writings. See the article âal-BahÅ«tÄ«â in the Encyclopedia of Islam, Second Edition. Available online: dx.doi.org/10.1163/1573-3912_islam_SIM_1079 [last access: 24 June 2022].
At the time of the decree, however, the DalÄ«l al-á¹Älib was discussed and used in education. See Steinberg, Religion und Staat, 113.
Ibid., 320.
See, for example, Ḥasan bin Muḥammad Safar, âTaqnÄ«n aḥkÄm al-sharÄ«Ê¿a fÄ« al-tajruba al-islÄmiyya,â Majallat al-Qaá¸Äʾiyya 3 (1433/2012): 106.
Muḥammad bin IbrÄhÄ«m al-SaÊ¿Ä«dÄ«, âIshkÄliyat al-taqnÄ«n wa-l-tadwÄ«n,â in Al-NiáºÄm al-Ê¿adl fÄ« al-SaÊ¿Å«diyya, ed. Muḥammad bin SaÊ¿Å«d al-Bashr and Manṣūr bin Ê¿Abd al-RaḥmÄn al-ḤaydarÄ« (Riyadh: Markaz al-Fikr al-Ê¿ÄlamÄ«, 1436/2010), 300.
FuʾÄd Ḥamza, Al-BilÄd al-Ê¿arabiyya al-saÊ¿Å«diyya (Riyadh: Maktabat al-Naá¹£r al-ḤadÄ«tha, 1355/1968), 197.
Al-AmÄna al-Ê¿Ämma li-Hayʾat KibÄr al-Ê¿UlamÄʾ (ed.), AbḥÄth Hayʾat KibÄr al-Ê¿UlamÄʾ (Riyadh: Hayʾat KibÄr al-Ê¿UlamÄʾ, 1434/2013), 3:248.
Ibid., 249.
See also Vogel, Saudi Business Law, 78.
Al-SaÊ¿Ä«dÄ«, âIshkÄliyat al-taqnÄ«n wa-l-tadwÄ«n,â 301.
Interview with Ḥamd al-Khuá¸ayrÄ« in his office at the Appeal Court in Riyadh, 25 July 2018.
Qays bin Muḥammad Äl MubÄrak, âAl-Madhhab al-qaá¸Äʾī fÄ« al-SaÊ¿Å«diyya,â in Al-NiáºÄm al-Ê¿adl fÄ« al-SaÊ¿Å«diyya, ed. Muḥammad bin SaÊ¿Å«d al-Bashr and Manṣūr bin Ê¿Abd al-RaḥmÄn al-ḤaydarÄ« (Riyadh: Markaz al-Fikr al-Ê¿ÄlamÄ«, 1436/2010), 284.
Nevertheless, as we will see in Chapters 6 and 7, the reliance on premodern books does not mean that contemporary views in Islamic jurisprudence have no influence on Saudi court practice.
Visit of the Riyadh Court of Appeal, 25 July 2018.
Appeal court judges usually do not quote fiqh literature in their comments on the first instance judgesâ decisions.
Interview with Muḥammad JÄr AllÄh in his office at the Riyadh Court of Appeal, 31 July 2018.
Interview with Manṣūr al-DhufayrÄ« at his law firmâs offices, 13 May 2018.
Al-AmÄna al-Ê¿Ämma li-Hayʾat KibÄr al-Ê¿UlamÄʾ (ed.) AbḥÄth Hayʾat KibÄr al-Ê¿UlamÄʾ, 3:232.
This gap is well illustrated by a conversation that I had with five lawyers of a mid-sized law firm in Riyadh. All of them were very familiar with Islamic family law, were confident in their work, and represented clients at the local court. After I had asked some more detailed questions on Islamic family law, I became interested in the way the young lawyers use legal literature. They insisted that fiqh books only played a minor role in their daily practice. However, the most senior of them explained that in some rare cases she consulted Ibn QudÄmaâs Al-MughnÄ«. I wanted to know more about her use of books and asked what role the fatwas of Muḥammad bin IbrÄhÄ«m played in their work. She hesitated and looked at her colleagues, who started to debate who the shaykh was. It became evident that the young lawyers had heard the name, but never actually read his works. Then, the senior lawyer turned to me with a smile and said, âof course we use the books of Muḥammad bin IbrÄhÄ«m!â.