Despite Muhammad bin Salman’s reformist politics, Islamic jurists (ʿulamāʾ) continue to shape political and social life in Saudi Arabia. At the heart of this lies the legal system, which remains a stronghold of the religious establishment. While the vast majority of Muslim countries have adopted either a civil law or common law system, Saudi Arabia claims to maintain an Islamic legal system. This extends beyond simply applying Islamic law as a set of norms but encompasses a comprehensive Islamic understanding of the entire legal system.
Over the past two decades, the Saudi judiciary has experienced its most significant transformation in history: Islamic law has been partly codified, the court system has been expanded, and digital technology has been introduced to the courts. The aim of these reforms is to make the judiciary more efficient, professional, and transparent. While the recent reforms have increased the government’s influence on Islamic law, the ʿulamāʾ continue to maintain their control of the legal system.
In this book, I provide an in-depth exploration of the workings of the Saudi legal system in order to offer a better understanding of these developments. I use the perspective of the judiciary’s main protagonists, the ʿulamāʾ, to explore how Islamic law is understood and applied in Saudi Arabia today. I address two main questions: First, what is the jurists’ understanding of an Islamic legal system? And second, how is this understanding reflected in the Saudi legal system, its laws, its institutions, and the courts’ practice? The book focuses on family and criminal law, the most controversial areas of Islamic law in Saudi Arabia today, and covers the developments from the 1980s up to the codification of Islamic family law in 2022.
The jurists’ discursive interaction with the Islamic legal tradition is a promising starting point for exploring the Saudi legal system because it is how the jurists understand the law themselves. From the perspective of Saudi ʿulamāʾ, there is no “Saudi law” (qānūn Saʿūdī), despite the recent codifications. Instead, the jurists see themselves as part of a global effort to understand the divine rulings, which are not restricted or connected to one nation-state. This is reflected in their writings: even though Saudi scholars and judges publish extensively today, only very few books explicitly mention Saudi Arabia in their titles. Whereas some scholars add a short chapter that discusses their topic in the context of the Saudi legal system, most books and articles only refer to supranational Islamic law.
There is also another advantage of such an approach. By situating the Saudi legal discourse in the Islamic tradition, it is possible to overcome some of the binary oppositions that underlie many descriptions of the Saudi legal system: “modern” versus “archaic,” “normal” versus “exceptional,” “progressive” versus “traditional,” and “liberal” versus “conservative.”
1 Islamic Law as a Discursive Tradition
The understanding of Islamic law as a discursive tradition is informed by Talal Asad’s work. Although Asad’s approach has been fruitfully employed by anthropologists, sociologists, and historians of Islam, it has so far found little resonance among scholars of Islamic law. Asad argued that inquiries of Islam “should begin, as Muslims do, from the concept of a discursive tradition that includes and relates itself to the founding texts of the Quran and the Hadith.”1 By using the notion of a discursive tradition, Asad criticised scholarly understandings of Islam as a fixed set of rules and beliefs. Instead, Asad’s approach puts the focus on the intellectual and applied practices of Islam.
His understanding of Islam was animated by a rethinking of the idea of tradition in the social sciences. From the 1980s onwards, Alasdair MacIntyre and others forwarded the idea that a tradition should not be seen as a set of timeless doctrinal or cultural givens, as it is commonly understood, but as a manifestation of the historicity of human practices and institutions.2 Inspired by MacIntyre’s approach, Asad defined a discursive tradition as follows:
A tradition consists essentially of discourses that seek to instruct practitioners regarding the correct form and purpose of a given practice that, precisely because it is established, has a history. These discourses relate conceptually to a past (when the practice was instituted, and from which the knowledge of its point and proper performance has been transmitted) and a future (how the point of that practice can best be secured in the short or long term, or why it should be modified or abandoned), through a present (how it is linked to other practices, institutions, and social conditions). An Islamic discursive tradition is simply a tradition of Muslim discourse that addresses itself to conceptions of the Islamic past and future, with reference to a particular Islamic practice in the present. Clearly, not everything Muslims say and do belongs to an Islamic discursive tradition. Nor is an Islamic tradition in this sense necessarily imitative of what was done in the past.3
The notion of Islam as a discursive tradition comprises both doctrine and practice. Asad highlighted that both are interconnected since it is doctrine that authorises certain practices as Islamic. Doctrine, on the other hand, is not fixed but constantly negotiated. “The Islamic discursive tradition,” Ovamir Anjum noted, “is characterised by its own rationality or styles of reasoning – couched in its texts, history, and institutions.”4 Hence, understanding Islamic law as a discursive tradition shifts the lens from a mere description of the Saudi jurists’ doctrine to their use of Islamic jurisprudence, which forms the basis for their conceptions of the law.
Furthermore, the notion of Islam as a discursive tradition allows us to escape the dichotomy between “classical” and “modern” Islamic law that is still popular among scholars of Islam.5 Asad reminds us that legal arguments, even if they are derived from a distant past, are always part of the tradition’s present. The styles of reasoning, of course, differ over time.
Similarly, there cannot be a misinterpretation of the legal tradition from this perspective, nor can a tradition be inauthentic, since such an understanding would imply a fixed Islamic doctrine that is transmitted unchanged through time.6 Like other traditions, Islam is continuously developing and always changing. Asad wrote:
Talking of tradition (‘Islamic tradition’) as though it was the passing on of an unchanging substance in homogeneous time oversimplifies the problem of time’s definition, experience, and event. Questions about the internal temporal structure of tradition are obscured if we represent it as the inheritance of an unchanging cultural substance from the past – as though ‘past’ and ‘present’ were places in a linear path down which that object was conveyed to the ‘future’.7
To understand law, law-making, or legal interpretation as a tradition is not per se a new approach.8 For instance, Niklas Luhmann noted that “law never has to ‘begin’.”9 Every legal act, Luhmann claimed, could “join traditions as they are found.”10 In an influential article, Martin Krygier criticised that Western legal theorists would mostly understand law as a time-free instrument of regulation and would thereby ignore the role of references to the past made in judicial reasoning.11 Instead, Krygier demanded, legal theorists should acknowledge law’s traditionality and analyse the reasons why specific rules and practices have developed.12 According to Krygier, the past plays a role in every legal argument, either explicitly or through the jurists’ education, and hence, the tradition would always be inescapable. Every examination of the law, Krygier argued, should thus acknowledge law’s traditionality.13
Understanding Islamic law as a discursive tradition does not mean simply adding the jurists’ use of the past to the analysis but placing the jurists’ connection of legal ideas through time in the center of the scholarly inquiry.14 In the Saudi legal discourse, the way in which the jurists use the Sunni schools of Islamic jurisprudence (madhāhib, sing. madhhab) defines their legal reasoning. The madhāhib, most importantly the Ḥanbalī, the Mālikī, the Shāfiʿī, and the Ḥanafī schools, represent the established scholarship on Islamic law that forms the traditional understanding of fiqh.15 Although the Quran and the Sunna constitute the starting point for every legal argument, legal reasoning in Saudi Arabia mainly consists of the evaluation of the schools’ opinions on a specific issue. Most, but not all, legal reasoning takes place through the process of weighing (tarjīḥ) between already established opinions.
Samira Haj pointed out that Islamic jurists do not merely repeat the past but seek “rational coherence by making reference to a set of texts, procedures, arguments and practices.”16 Like in any other tradition, the past in the Islamic legal tradition is not univocal. It consists of various voices that have been filtered through the transmission of knowledge or might even have been invented. Saudi jurists, as we will see throughout the book, accept pluralism as a natural element of Islamic law, through which they navigate. Pluralism enables them to adapt their doctrine to social, political, and technological developments.
At the heart of Asad’s conception of Islam as a discursive tradition lies the idea of orthodoxy. For him, orthodoxy is not a particular set of beliefs, as it is commonly understood, but “the relationship between power and truth.”17 It is power, Asad argued, through which the “correct” Islamic understanding is established.18 Hence, orthodoxy in the Saudi legal discourse is represented by those in power, namely leading scholars, influential judges, lawyers, and the Ministry of Justice as representatives of the Saudi king. However, political power alone is not sufficient in order to represent orthodoxy in the legal discourse. Every tradition provides its participants with a language through which they have to address the past. Only by using this language are participants admitted to the discourse. In the case of the Saudi legal discourse, this language consists most notably of the established methods of Islamic jurisprudence, the mastery of legal Arabic, and, more generally, the specific habitus of a trained Islamic jurist.
The focus of this book lies on Saudi orthodoxy, and thus on those in power – a distinct group of people, mostly influential scholars and judges – and explores their use of the legal discourse’s language. This means that the book cannot represent the marginalized since those who either are not in power or cannot express their ideas through the discourse’s complex language are not visible in the legal discourse. This includes Shia scholars, who are until now not represented in the legal system,19 but also leads to an underrepresentation of female voices.
The Saudi legal discourse is still male-dominated. Although women are today admitted as lawyers, their opinions are still not considered authoritative. Of course, this does not mean that women do not utter legal opinions or demand legal reforms. Their struggle to be heard, however, is beyond the scope of this book.
2 The Legal Discourse’s Main Actors
The Islamic jurists, the ʿulamāʾ, form the backbone of the Saudi legal system.20 Although most ʿulamāʾ publicly wear the same outfit – unlike other Saudis, they usually do not wear the traditional ʿaqāl – they are a diverse group and only share one common feature: their education in Islamic jurisprudence. Saudi ʿulamāʾ today have different ethnic and social backgrounds, although most jurists come from Central Arabia, especially from the Najd region. Whereas some ʿulamāʾ additionally hold degrees from foreign universities, others are deeply rooted in the Saudi tradition of Islamic jurisprudence.
For Western scholars, it is easy to idealise and exoticise the ʿulamāʾ. Until today, they describe themselves as the heirs of the Prophet and the guardians of faith. The Prophet supposedly said that “the scholar is superior to the regular believer like the full moon is superior to the rest of the planets.”21 Yet, the role of many ʿulamāʾ in the Saudi legal system is not always that glamorous. Like jurists in other countries, they work to maintain a functioning legal system that answers the complex demands of modern life. The everyday routine at Saudi courts, the president of the General Court in Riyadh, Nāyif bin Aḥmad al-Ḥamd, complained, would often be disconnected from the leading scholars’ idealist description. “We have come to a different place,” new judges would say when they arrived at his court after their training at the Higher Judicial Institute (al-Maʿhad al-ʿĀlī li-l-Qaḍāʾ). At court, al-Ḥamd reminded other ʿulamāʾ at a conference, people would show their emotions, cry, shout, lie, and cheat, an aspect that would be absent from the elitist legal debates.22
Even though it has become more difficult for Islamic scholars to express their opinions due to the increasingly imposed restrictions on freedom of speech, there is still considerable divergence of opinions in the legal discourse. One could say that there is a general rule: If an opinion is accepted in the Islamic tradition, it is generally safe to discuss it. Roughly speaking, the Saudi legal discourse consists of four different ideal types (in the Weberian sense): independent scholars, judges, lawyers, and jurists associated with the Ministry of Justice.
An independent scholar is a jurist who does not practice the law and is, therefore, relatively independent from the constraints of daily life in the Saudi judiciary.23 A good example of an independent scholar is ʿAbd Allāh bin Muḥammad Āl Khunayn, who is arguably the leading Saudi jurist specialized in the Islamic judiciary (qaḍāʾ) today. Nevertheless, not only scholars who specialize in the legal system influence the way the law is understood in the Saudi legal system. Saʿd bin Nāṣir al-Shithrī, for example, another eminent contemporary Saudi scholar, specializes in Islamic legal theory (uṣūl al-fiqh) but also writes about issues that directly concern the Saudi judiciary.
To some extent, the role of most independent scholars resembles that of law professors in Western legal systems. Ibn Khunayn, for example, trains judges at the Higher Judicial Institute, and al-Shithrī teaches Islamic jurisprudence at several Saudi universities. In addition to their teaching appointments, independent scholars usually lecture in mosques, appear in television programs, answer fatwa requests, and publish books. Typically, independent scholars are members of influential families from the central region of Saudi Arabia, the Najd. The Khunayn family, for example, originates from the small town of Dilam south of Riyadh. Saʿd al-Shithrī’s family has its roots in the Aflāj region, also in the southern Najd, and belongs to the powerful al-Qaḥtānī tribe.24 Other respected scholarly families come from the Qaṣīm area in the northern Najd.
Typically, the fathers and grandfathers of influential contemporary scholars have already been part of the scholarly establishment. Saʿd al-Shithrī’s father, for example, Nāṣir bin ʿAbd al-ʿAzīz, was a trained Islamic jurist and powerful adviser to Saudi kings, most notably to King Khālid.25 ʿAbd Allāh bin Muḥammad bin Khunayn is related to Rashīd bin Ṣāliḥ bin Khunayn, a famous scholar as well an adviser at the king’s court. It is important to note that scholarly families should not be reduced to their religious representatives. Today, members of these families work in various sectors not at all related to Islam. Turkī Āl al-Shaykh, for example, a member of the most influential scholarly family, the al-Shaykhs, is a renowned sponsor of Saudi football, who was in 2016 appointed as the head of the controversial General Authority for Entertainment (al-Hayʾa al-ʿĀmma li-l-Tarfīh).26
Many independent scholars had worked in the judiciary before they focused on writing and teaching. For example, the former Grand Mufti Ibn Bāz served for twelve years as a judge in al-Kharj, a smaller city south of Riyadh.27 Likewise, Ibn Khunayn had a long career in the judiciary. Before dedicating himself purely to writing and teaching, he served as a judge at the Riyadh Court of Appeal.28
Like other famous independent scholars, Ibn Khunayn and Saʿd al-Shithrī are members of the Council of Senior Scholars (Hayʾat Kibār al-ʿUlamāʾ), which is beside the Grand Mufti (Muftī al-ʿAmm), the kingdom’s highest religious authority. The Council consists of a varying number of famous scholars, whom the king appoints, and is headed by the Grand Mufti.29 Although the Council is funded by the Saudi king, it has in the past regularly disagreed with the king’s plans and policies. In the context of the Saudi judiciary, one of the major issues in which the Council refused the king’s policy was the question of codification.30
Like the Council, the Grand Mufti is a powerful institution. In practice, his authority largely depends on his charisma. Whereas the first two Grand Muftis, Muḥammad bin Ibrāhīm Āl al-Shaykh (d. 1969) and ʿAbd al-ʿAzīz bin ʿAbd Allāh bin Bāz (d. 1999), both were charismatic figures who are still regularly cited in Saudi legal writings, the current Grand Mufti, ʿAbd al-ʿAzīz bin ʿAbd Allāh Āl al-Shaykh, is less visible.31 Besides the Grand Mufti and the Council of Senior Scholars, the Permanent Committee for Scholarly Research and Counselling (al-Lajna al-Dāʾima li-l-Buḥūth al-ʿIlmiyya wa-l-Iftāʾ) is the third main religious body in the kingdom. It consists of a small number of the Council’s most respected scholars – for example, Ibn Khunayn is a former member – who prepare research papers for the Council’s discussions and issue fatwas. Like the Council, the Permanent Committee is headed by the Grand Mufti and currently consists of only six members.
The second group of main actors in the legal discourse are the judges. Like most independent scholars, the ideal-typical Saudi judge comes from a respectable family, ideally from the Najd. He – women are still not admitted to judgeship – will have successfully studied Islamic jurisprudence and then transferred to the Higher Judicial Institute at Riyadh’s Imām University. The judges typically earn a master’s degree in Islamic jurisprudence, and some judges then join the Institute’s PhD program. Non-Saudis are not admitted as judges, but foreign degrees in Islamic jurisprudence are recognized. Due to an extension of the court system in recent years, the Saudi government has appointed a large number of recent graduates as judges.
Generally, judges show their adherence to the group of the ʿulamāʾ by not wearing the traditional ʿaqāl. Even though they share a similar education, the judges, as we will see in the coming chapters, differ in their views considerably. Some Saudi judges additionally follow a career as preachers. For example, one judge from Dammam publishes on questions of family law and the Islamic judiciary and also holds public lectures in mosques, where he talks about questions of daily life and explains the Quran. The strong connection between ʿulamāʾ in different fields of religious life is very present, and some ʿulamāʾ even move between judicial and religious positions. For instance, Ṣāliḥ bin ʿAbd Allāh bin Ḥumayd served as head of the Higher Judicial Council (al-Majlis al-Aʿlā li-l-Qaḍāʾ) before he became imām at the Great Mosque in Mecca (al-Masjid al-Ḥarām).32
Thirdly, lawyers play an increasingly important role in the Saudi legal discourse. They are a relatively new phenomenon in Saudi Arabia. Although premodern scholars already allowed that parties are represented in court, Saudi Arabia did not have a formal framework that regulates the work of professional lawyers until 2002.33 Today, lawyers form a heterogeneous group, including former judges, trained Islamic scholars, and jurists without any background in Islamic jurisprudence, although a formal degree in law is required.34 Some identify as ʿulamāʾ by not wearing the traditional ʿaqāl, whereas others choose traditional Saudi dress or even wear Western-style clothes. Saudi universities have in the last decades started to offer degree programs in law, which focus on the codes issued by the king. The students take courses in civil and common law methodology, arbitration, international private law, and similar topics.35
In recent years, the number of female lawyers has been rising. Today, they are a natural part of the Saudi legal system and are increasingly respected by the judges. Since women are not admitted to the Higher Judicial Institute, many are educated in the king’s codes and only took one or two classes in Islamic jurisprudence. Even though lawyers publish less than judges or independent scholars, they are very present in the legal discourse on the internet, where they comment on recent developments and share documents and legal literature. Some lawyers have become well known on social media and have thousands of followers.
Likewise, the Ministry of Justice, the fourth key actor in the Saudi legal discourse, is very active on the internet. Jurists with strong ties to the Ministry tend to be more reform-oriented than other actors in the legal discourse. Even though all Ministers of Justice until now were trained Islamic jurists, employees seem to have different backgrounds, depending on their work.
Beginning in the mid-2000s, the Ministry of Justice aimed to increase the transparency of the Saudi judiciary. One of the Ministry’s primary goals is to establish a “culture of justice” (thaqāfa ʿadliyya). Manṣūr al-Ḥaydarī, an associate of the Ministry and former head of the Ministry’s “Research Center” (Markaz al-Buḥūth), wrote that a culture of justice in Saudi Arabia would mean that every person knows about his or her rights and how to claim them in court.36
One result of the program to increase transparency is the publication of court judgements and other literature. As part of the establishment of a “culture of justice,” the Ministry also aims to educate the judges on the “misinterpretations” (tafsīr bi-shakl khāṭiʾ) of the king’s codes (anẓima).37 De facto, this means a higher control of judges and other legal actors by the Ministry. Additionally, the Ministry promotes alternatives to adjudication before the sharīʿa courts, most importantly, arbitration (taḥkīm) and mediation (waṣāṭa).
3 Sources and Methodology
Brinkley Messick recently pointed out that to approach Islamic law as a discursive tradition, and thereby to focus on the discursive interaction with legal texts, gives an “explicit mandate for textual inquiries.”38 This is especially true for Saudi jurists, who most importantly express their ideas through writing. The ʿulamāʾ traditionally preferred to transmit knowledge through personal interaction. Accordingly, Saudi scholars long refrained from publishing extensively. As a result, even thirty years ago, only a few books by Saudi scholars were available.39
This has changed fundamentally: like their European counterparts, Saudi jurists today communicate their ideas through writing articles and books. Several journals publish articles on Islamic law, PhD graduates upload their theses on the internet, students collect the fatwas of their older teachers, and the number of books written by Saudi jurists and scholars increases every year.
In the mid-2010s, court judgements became for the first time in Saudi history available in huge dimensions, which allowed for a detailed analysis of Saudi court practice. As part of their plan to establish a “culture of justice,” the Ministry in 2007 published the first of three compilations (mudawwanāt) of cases from different fields, in particular criminal and private law. This step was remarkable since Saudi judges had long been very critical of releasing any information on their decision-making. Frank Vogel reported from his fieldwork in Saudi Arabia in the 1980s that he faced considerable resistance when trying to obtain case law. Vogel wrote that the large majority of his visits to the Supreme Judicial Council, the predecessor of the Higher Judicial Council, “produced only glasses of tea with court staff; a prized few of them led to quarter-hour oral or written exchanges of questions and answers.”40 Whereas the first three compilations merely allowed for a glimpse into the workings of the legal system, the Research Center at the Ministry of Justice in 2015 released the first substantial collection of court decisions (Majmūʿat al-aḥkām al-qaḍāʾiyya), in thirty volumes.41 The collection includes selected decisions from the year 1434/2012–13 of courts from all over the kingdom. Subsequently, in 2017, the Research Center published another massive collection of 1,154 court decisions from the year 1435/2013–14.42 It is expected that more decisions will be released in the coming years. In total, several thousand decisions have been published so far.
Another important source is premodern legal writings: since Saudi ʿulamāʾ frequently refer to premodern authors, many quotes and translations of premodern legal writings can be found throughout this book. All translations are based on popular editions of the manuscripts. The question of the historical authenticity of premodern writings is beyond the scope of this book. I trusted the editors to use a plausible version of the manuscript and edit it correctly. To supplement my reading of legal literature, I conducted personal interviews with many leading Saudi scholars, judges, lawyers, and government officials in the course of three visits to the kingdom in 2018 and 2019. Additionally, I visited several Saudi courts in Riyadh.
I got to know most of my informants through my reading of Saudi legal literature. Once in Saudi Arabia, I either contacted potential interview partners directly by e-mail or managed to get in touch through friends, other jurists, or the always supportive King Faisal Center for Research and Islamic Studies. Whereas some interviews took place in a very formal context, others were more casual. It proved to be a good strategy to ask questions based on books that I had read. Due to the very detailed questions that were tailored to the individual interview partner, I decided not to structure the interviews.
Throughout the text, I refer to only some of the interviews that I conducted in the course of the research. This has two reasons: Firstly, many interviews or meetings informed my general understanding of the legal discourse and assured me that a particular idea is prevailing among most jurists but did not bring up new information. Secondly, many interviews addressed very detailed and technical questions that are not relevant to the topics addressed in this book but helped me understand the way the system works more generally. Occasionally, I only refer to the interview partner’s position in the judiciary to keep them anonymous. I was able to visit the appeal court, the family court, and the general court in Riyadh several times. The visits gave me a better understanding of the procedural and structural reforms in the Saudi judiciary during the last decades. The courts’ employees and judges explained the courts’ procedures to me, and I was able to attend court sessions. However, these insights were only supplementary to my reading of Saudi legal literature and the interviews, and I will only sporadically refer to them.
The third main source for the book is videos and audio recordings. Over the course of more than five years, I watched hundreds of hours of recorded lectures, conferences, fatwa sessions, and TV interviews. These insights into the Saudi legal discourse proved to be especially helpful. Whereas an interview is limited to information that the interviewee wants to share with an outsider and the impression that he wants to give about the legal discourse, the massive amount of recorded material available allowed me to observe the communication between the legal discourse’s participants without interfering. Moreover, the recordings helped me to understand the jurists’ writings better. Saudi ʿulamāʾ often publish recordings of their lectures, in which they explain their writings in more detail. Whereas the scholars use the highly technical language of Islamic jurisprudence in their books, they often explain how their writings should be understood in their lectures and give examples for difficult concepts in order to make them more approachable. Furthermore, many lawyers upload videos on YouTube, in which they explain Saudi procedural law to students and the general public.
On Twitter and other social media, Saudi lawyers and judges discuss current topics and share literature and photos of court documents and judgements. For years, I followed many of the debates to identify the key developments and debates in the Saudi judiciary.
4 Outline of Chapters
The book starts by discussing the legal system’s theoretical foundations and subsequently analyzes how they are reflected in the Saudi judicial institutions and the application of Islamic law in court.
Chapter 1 locates the Saudi judiciary in the overall structure of the Saudi state. It demonstrates how siyāsa sharʿiyya, a state doctrine that links the ruler’s legitimacy to his commitment to apply and enforce Islamic law, obliges him to uphold an Islamic judiciary. The right to interpret Islamic law, on the other hand, remains in the hand of the Islamic jurists and thereby allows them to control the legal system.
Chapter 2 explores the roots of the Saudi jurists’ understanding of Islamic law. It shows that contemporary Saudi Islamic jurists, contrary to what is commonly assumed, do not feel bound to a single school of Islamic jurisprudence. The Saudi jurists’ critique of the established schools of law, the chapter demonstrates, can be traced back to the reformist agenda of Ibn ʿAbd al-Wahhāb (d. 1792) and to nineteenth-century modernist scholars from Egypt.
Chapter 3 investigates the jurists’ resistance to the codification of Islamic law. Whereas many observers see the debate on codification mostly as a power struggle between the Islamic jurists and the king, the chapter takes the jurists’ perspective and explores the reasons for their longstanding refusal of codified Islamic law. It shows that the main reason for the jurists’ refusal is not the transformation of Islamic law into state law but their fear that a binding codification would deprive Islamic law of its flexibility and normative plurality, which would lead to unjust court decisions.
Chapter 4 analyzes how Saudi jurists have extended the scope of the premodern idea of the prevailing practice (mā jarā ʿalayhi al-ʿamal) of the courts into a de facto system of judicial precedent and, contrary to the prevalent opinion in classical doctrine, have allowed for the introduction of a hierarchical court system. The chapter argues that the prevailing practice, which is enforced by the appellate courts, constituted a form of proto-codification that stabilized the legal system and acted as a counterweight for the judges’ emphasis on ijtihād.
Chapter 5 shows how the jurists’ understanding of Islamic law was reflected in Saudi court practice prior to codification. By using the example of child custody, the chapter demonstrates how Saudi judges related to the tradition of Islamic jurisprudence in their judgements, how they moved away from dominant doctrines in Islamic jurisprudence and thereby adapted custody law to the changing social and technological circumstances in twenty-first-century Saudi Arabia.
Chapter 6 uses two case studies to explore how Saudi Islamic jurists initiated legal reforms in the middle of the twentieth century and how they unfold today. The first case study analyses the ways through which leading Saudi Islamic jurists have expanded the scope of the severe Quranic punishment of ḥirāba, usually understood as highway robbery, to also include drug trafficking. This eventually led to the introduction of harsh penalties for drug trafficking in the Code against Drugs and Mind-affecting Substances (Niẓām Mukāfaḥat al-Mukhadirāt wa-l-Muʾathirāt al-ʿAqliyya). The second case study traces the jurists’ reinterpretation of women’s unilateral khulʿ divorce from the primary sources of Islamic law to contemporary court practice. By gradually allowing women to divorce against the will of their husbands, Saudi Islamic jurists have diverged from the consensus of the four major schools of jurisprudence.
Chapter 7 analyzes the codification of Islamic family and inheritance law in 2022. It shows that the law of personal status (Niẓām al-Aḥwāl al-Shakhṣiyya) deviates in several key aspects from Ḥanbalī teachings. These deviations, as the chapter demonstrates, are not the result of state reform but the codification of the prevailing practice of the courts. By pointing to the continuities between the codification and the Islamic jurists’ writings, the chapter challenges common understandings among scholars of Islam, who describe the codification of Islamic law as a turning point in Islamic history.
Talal Asad, “The Idea of an Anthropology of Islam,” Qui Parle 17, no. 2 (2009): 20.
See, for instance, Jerome Schneewind, “MacIntyre and the Indispensability of Tradition,” Philosophy and Phenomological Research 51, no. 1 (1991): 165–68.
Asad, “Idea of an Anthropology,” 20.
Ovamir Anjum, “Islam as a Discursive Tradition: Talal Asad and His Interlocutors,” Comparative Studies of South Asia, Africa and the Middle East 27, no. 3 (2007): 662.
See Asad, “Idea of an Anthropology,” 21.
Anjum, “Islam as a Discursive Tradition,” 671.
Talal Asad, Formations of the Secular (Stanford: Stanford University Press, 2003), 222.
Nor is it a new approach to describe other human practices as traditions. Social theorists like Edward Shils have published extensively on the concept of tradition. See for an overview of Shils’ ideas Struan Jacobs, “Edward Shils’ Theory of Tradition,” Philosophy of the Social Sciences 37, no. 2 (2007): 139–62.
Niklas Luhmann, Law as a Social System (Oxford: Oxford University Press, 2004), 153.
Ibid.
Martin Krygier, “Law as Tradition,” Law and Philosophy 5, no. 2 (1986), 239.
Ibid., 243.
Ibid., 255.
As Krygier pointed out, legal theorists rarely make new discoveries about the law, but “focus attention on what was already familiar, frequently so familiar as to escape notice altogether.” See Ibid., 238.
See for more information on the schools of Islamic jurisprudence Wael Hallaq, An Introduction to Islamic Law (Cambridge: Cambridge University Press, 2009) 31–37.
Samira Haj, “Reordering Islamic Orthodoxy: Muḥammad ibn ʿAbdul Wahhāb,” The Muslim World 92, no. 3/4 (2002): 336.
Asad, “Idea of an Anthropology,” 22.
See also Saba Mahmood, Politics of Piety: The Islamic Revival and the Feminist Subject (Princeton: Princeton University Press, 2005), 116.
Anjum, “Islam as a Discursive Tradition,” 671.
Whereas in the context of the Saudi judiciary, ʿulamāʾ refers to Islamic scholars, the term is used in other contexts to describe scholars more generally.
Abū Dāwūd, Sunan Abī Dāwūd (Damascus: Dār al-Risāla al-ʿĀlamiyya, 1430/2009), 5:485 (No. 3641).
Lecture by Nāyif bin Aḥmad al-Ḥamd at the conference “Intiqāl Ḥaqq al-Ḥaḍāna fī Ḍawʾ Mutaghayyirāt al-ʿAṣr” (Transferring the Right to Custody in the Light of the Changes of the Century) at the Imām Muḥammad bin Saʿūd Islamic University in Riyadh on the 23.10.1433/10.9.2012. A recording of the conference is available on YouTube, www.youtube.com/watch?v=K8HOgry1j–s, min 31 [last access: 30 June 2020].
The ideal type of a Saudi independent scholar today to some degree resembles Wael Hallaq’s concept of the author-jurist in premodern Islamic law. Hallaq distinguished between author-jurists, who compiled law manuals and theoretical treatises, and judges and muftis, who applied the law based on the author-jurists’ writings. See Hallaq, “Introduction to Islamic Law,” 11.
Muḥammad bin Nāṣir Al-Shithrī, Āl al-Shithrī: ʿUlamāʾuhum wa-tārīkhuhum (Riyadh: Dār al-Ḥabīb, 1430/2009), 63.
Ibid., 10.
See www.english.alarabiya.net/en/life-style/entertainment/2018/12/27/Turki-al-Sheikh-new-Chairman-of-the-General-Authority-for-Entertainment [last access: 30 June 2022].
ʿAbd al-ʿAzīz bin ʿAbd Allāh Ibn Bāz, Majmūʿ fatāwā wa-maqālāt mutanawwiʿa (Riyadh: Dār al-Qāsim, 1420/1999), 1:10.
Ibn Khunayn spoke about his experiences in the judiciary in a lecture at the Saudi Association of the Judiciary (al-Jamaʿiyya al-ʿIlmiyya al-Qaḍāʾiyya). The recorded lecture can be found on YouTube, www.youtube.com/watch?v=Wa1PTeitSrQ [last access: 26 May 2022].
See Muhammad Al-Atawneh, Wahhabi Islam Facing the Challenges of Modernity: Dār al-Iftā in the Modern Saudi State (Leiden: Brill, 2010), 18.
In chapter 4, we will discuss the Council’s decision and its main arguments in detail.
I have never seen ʿAbd al-ʿAzīz bin ʿAbd Allāh Āl al-Shaykh cited in any court judgements or legal writings. Frank Vogel shares this observation. See Frank Vogel, Saudi Business Law in Practice: Laws and Regulations as Applied in the Courts and Judicial Committees of Saudi Arabia (Oxford: Hart, 2019), 94.
See Ibn Ḥumayd’s website, www.ibnhomaid.af.org.sa [last access: 21 March 2023].
These were introduced by the 1422/2002 Code of Lawyering (Niẓām al-Muḥāmā).
Lawyers are required to register with the government and must hold a degree either in Islamic law or in the king’s laws. See Article 3 of the Code of Lawyering.
I was able to get an impression of the courses through many conversations with lawyers and a talk I gave at the law faculty of the Prince Sultan University in Riyadh in October 2019.
Manṣūr bin ʿAbd al-Raḥmān Al-Ḥaydarī, “Al-taṭwīr fī al-jānib al-ijrāʾī,” in Al-niẓām al-ʿadl fī al-Saʿūdiyya, ed. Markaz al-Fikr al-ʿĀlamī ʿan al-Saʿūdiyya (Riyadh: Markaz al-Fikr al-ʿĀlamī ʿan al-Saʿūdiyya, 1436/2015), 222.
Ibid., 223.
Brinkley Messick, Sharīʿa Scripts: A Historical Anthropology (New York: Columbia University Press, 2018), 35.
For example, during Frank Vogel’s fieldwork in the 1980s, only a few books by Saudi scholars existed, and Saudi scholars were reserved towards foreign researchers. Personal conversation with Frank Vogel at a conference in Tampere, Finland, June 7, 2018.
Frank Vogel, Islamic Law and Legal System: Studies of Saudi Arabia (Leiden: Brill, 2000), 98.
Markaz al-Buḥūth, Majmūʿat al-aḥkām al-qaḍāʾiyya li-ʿām 1434 (Riyadh: Markaz al-Buḥūth, 1436/2015).
Markaz al-Buḥūth, Majmūʿat al-aḥkām al-qaḍāʾiyya li-ʿām 1435 (Riyadh: Markaz al-Buḥūth, 1438/2017).