1 Introduction
Codified law is not the only way judges can be restricted in their legal reasoning. Common law systems, for instance, rely more on legal precedents than on codified law. Usually, legal precedents are defined by high-ranking courts and enforced by the appeal court system.
In premodern Islamic law, both legal precedent and appeal courts played a minor role. Much more important were the schools: they structured legal reasoning and education. However, as we have seen in Chapter 3, premodern Ê¿ulamÄʾ agreed that a judge has to be a mujtahid, which theoretically allowed him to choose between the schoolsâ opinions. Yet, in some situations, premodern scholars feared the resulting inconsistency in the courtsâ adjudication. Overshadowed by the debate on ijtihÄd and largely ignored by Western scholarship, they developed the idea of a prevailing practice of the court (mÄ jarÄ Ê¿alayhi al-Ê¿amal, or mÄ jarÄ bihi al-Ê¿amal) as a mechanism to ensure the consistency of court decisions.
This chapter explores how Saudi Ê¿ulamÄʾ revitalized the concept of the prevailing practice and reinterpreted the position of judicial review in Islamic jurisprudence in order to unify court decisions in the absence of a binding codified law. It shows how the reference to the premodern notion that judges should jointly follow a specific opinion in Islamic jurisprudence allowed them to establish a system that resembled the concept of legal precedent in common law systems.
The question of legal precedent and judicial appeal has implications far beyond the technicalities of procedural law but determines how political power is established. Appeal courts can facilitate the hierarchical control of centralizing regimes and can thereby ensure political loyalty, which is especially important for Islamic political and religious institutions with their traditionally weak hierarchy.1 Understanding how law is unified through appeal courts and legal precedents can thus tell us a lot about the relationship between power, authority, and the law in Saudi Arabia and how it changed through codification.
2 The Institutionalization of the Prevailing Practice
2.1 The Conceptâs Origins and Its Development
2.1.1 The Two Meanings of the Prevailing Practice in Premodern Jurisprudence
Saudi Ê¿ulamÄʾ referred to premodern jurists when developing their understanding of the prevailing practice. In Islamic jurisprudence, the concept of the prevailing practice is mostly associated exclusively with the MÄlikÄ« School.2 The underlying idea, however, is more or less recognized in all schools of Islamic jurisprudence.3 Whereas the MÄlikÄ«s discussed the concept explicitly, it is less visible in other schools, which use various names to describe the same idea.4 The ḤanafÄ«s, for example, called it, among other things, âwhat we chooseâ (bihi naʾkhudh) or simply âthe practiceâ (al-Ê¿amal5 ).6 Yet, it is important to note that the jurists did not always carefully distinguish between the prevailing practice at court and the prevailing opinions in their fatwas.
The concept of a prevailing practice is employed in two different but interconnected ways: the first is the institutionalized departure from the predominant (rÄjiḥ) view in the school. Especially scholars in the MÄlikÄ« tradition held that a judge should under certain circumstances follow the prevailing practice in his area or at his court, even if it is based on a weak (á¸aÊ¿Ä«f) opinion.7 Thereby, the scholars wanted to adjust the law to particular local developments, for instance, a spreading disease or a war. To establish a new prevailing practice, the leading scholars of a specific area had to come together and choose a minority opinion that would be more suitable to the circumstances. Once the said situation ended, the judges had to return to the predominant view in the school.
This understanding of the prevailing practice is also recognized in the other schools. There too, the predominant opinion could be abandoned for more general considerations. For example, when discussing whether a woman could file a lawsuit against her absent husband, the sixteenth-century Ḥanafī jurist Ibn Nujaym (d. 1563) wrote,
According to the school, her evidence is not considered because [this would] be a trial against an absentee. According to Zufar,8 the evidence is heard â¦, [and] this is what is practiced. It is one of the six questions in which Zufarâs opinion is followed because of the needs of the people [li-ḥÄjat al-nÄs].9
Likewise, the ḤanafÄ« scholar al-Ḥaá¹£kafÄ« (d. 1677) stated that, in contrast to the common opinion in the ḤanafÄ« school, an alleged thief could be tortured. He wrote that âthis is what suits the people, and what is practiced since in theft there is only in the rarest occasions a witness testimony.â10 In a similar way, the fifteenth-century ḤanbalÄ« scholar al-MardÄwÄ« (d. 1480) argued for the permissibility of selling copies of the Quran, contrary to the opinion of Aḥmad bin Ḥanbal and leading ḤanbalÄ« scholars like Ibn QudÄma: âThis is what is practiced (Ê¿alayhi al-Ê¿amal), and nothing else suits the people (lÄ yasaÊ¿u al-nÄs ghayruhu).â11
The concept is also used in a different sense, which was of more importance for Saudi scholars: some premodern Ê¿ulamÄʾ also called the usually applied rules at a given time and place in history the prevailing practice. This understanding seemed to have been particularly common among ḤanbalÄ« scholars. Ibn Mufliḥ (d. 1362), for instance, referred to the notion of the prevailing practice when he stated that in the limited partnership agreement (sharikat al-Ê¿inÄn),12 the partners do not have to give each other explicit permission (idhn á¹£arīḥ) to dispose of each otherâs property: âThis is the practice (al-maÊ¿mÅ«l Ê¿alayhi) among my companions.â13
2.1.2 The Saudi Juristsâ Use of the Prevailing Practice
In the early twentieth century, Saudi scholars extended the conceptâs scope in order to unify the judgesâ ijtihÄd, which was increasingly decoupled from the ḤanbalÄ« tradition.14 Whereas premodern scholars only sporadically referred to the prevailing practice on a matter, Saudi jurists applied the concept more broadly. Muḥammad bin IbrÄhÄ«m Äl al-Shaykh (d. 1969) emphasized that âno [judge] should decide [yuftÄ«] differently from the usually used opinion [mÄ Ê¿alayhi al-fatwÄ] in all courts throughout the kingdomâ.15 Although low-ranking judges were not bound to a single madhhab, Muḥammad bin IbrÄhÄ«m obliged them to follow the prevailing opinion in the Saudi legal discourse.
On one occasion, for example, Muḥammad bin IbrÄhÄ«m was asked whether three á¹alÄq uttered at the same time should be counted as one or three á¹alÄq utterances, a classical problem in Islamic jurisprudence. He replied that, contrary to Ibn Taymiyyaâs popular opinion, the practice in Saudi courts was to count each utterance as a separate á¹alÄq.16 In a later letter, Muḥammad bin IbrÄhÄ«m criticized a judge at the court in Mecca who claimed that the three á¹alÄq should be counted as one. There was no need for the judge, Muḥammad bin IbrÄhÄ«m wrote, to deviate from the prevailing view in the kingdom.17 In yet another letter, he demanded that a judge should follow what is usually practiced at his court (mÄ Ê¿alayhi al-Ê¿amal), when he determines the compensation for injuries (arÅ«sh al-jirÄḥÄt).18 In doing so, Muḥammad bin IbrÄhÄ«m acted, as we will see in more detail, as an appeal instance, similar to supreme courts in contemporary legal systems. Thus, it must be assumed that the letters had a significant impact on court practice at the time. However, Muḥammad bin IbrÄhÄ«m did not develop a comprehensive theory of the prevailing practice. This is probably a result of his education in ḤanbalÄ« jurisprudence, whose proponents largely neglected to theorize the concept.19
Today, the prevailing practice has become the main guideline for ijtihÄd in most questions. In his commentary on the Saudi procedural code, Ibn Khunayn wrote,
The practice in the courts of the kingdom [is]: it is used what Quran and Sunna state. However, in disputed questions of ijtihÄd, the prevailing practice (maÊ¿mÅ«l bihi) is chosen by the court, then the dominant (mashhÅ«r) view in the ḤanbalÄ« school.20
The maÊ¿mÅ«l bihi thus became the main point of reference for the judgesâ application of Islamic law, while the ḤanbalÄ« school merely served as fallback option whenever the prevailing practice cannot be determined.
2.2 Prevailing Practice and Legal Precedent
2.2.1 The Differences between the Prevailing Practice and Legal Precedent
Important questions remain: Who defines the prevailing practice? And how is it developing? When asked what constitutes the maÊ¿mÅ«l bihi, Ibn Khunayn explained that the term would just be another way to refer to judicial precedents (sawÄbiq qaá¸Äʾiyya). The recognition of precedent in the form of the maÊ¿mÅ«l bihi was similar to the concept of legal precedent in Anglo-American legal systems. He emphasized that the concept of the maÊ¿mÅ«l bihi was not borrowed from other legal systems but derived from the Islamic tradition.21
However, in detail, Ibn Khunayn saw considerable differences between the way the two concepts worked:22 for him, judicial precedent represents every court decision on a legal question that has not yet been decided on by any court nor addressed by the Ê¿ulamÄʾ.23 In other words, whenever contemporary or premodern Islamic jurists have addressed an issue, a court decision on that issue, even the first one, could not be considered a legal precedent. Thus, Ibn Khunaynâs understanding of what constitutes a legal precedent is much broader than in the Anglo-American tradition, where only court decisions, not jurisprudential writings, can constitute precedents. Likewise, he defines the prevailing practice as rulings that are not only established by the courts but also by Ê¿ulamÄʾ outside the judiciary.24
Ibn Khunayn held that one of the main differences between the two concepts in the context of Islamic law is that only court decisions form a legal precedent, whereas the Islamic legal discourse as a whole defines the prevailing practice. Legal precedents in Islamic law, he argued, are not binding, whereas the judges have to respect the prevailing practice.
Likewise, Muḥammad bin IbrÄhÄ«m maintained that judges are bound to the prevailing practice as a whole, not to individual previous court judgements by the same or another court. In one of his letters, he emphasized that a decision could not be based on another courtâs judgement.25 Nonetheless, in another letter, he stressed that earlier court decisions should not be ignored since they constitute an essential source for the judges. He wrote,
The [importance of] knowledge of earlier court judgements: it is to build upon them and to be enlightened by them. For the most part, the preceding [sÄbiq] is preferable to the subsequent [lÄḥiq].26
2.2.2 The Prevailing Practice as the Sum of Past Court Decisions
Despite these differences, the maÊ¿mÅ«l bihi is still mostly associated with past court decisions in the contemporary Saudi legal discourse. Appeal court judge Ḥamd al-Khuá¸ayrÄ«, for instance, the author of a handbook on Saudi court practice, explained that the maÊ¿mÅ«l bihi could be determined by looking at the higher courtsâ decisions. The appeal system produces a constant stream of new judgements, most notably of the appeal courtsâ decisions, that are circulated among the judges and become de-facto binding for them.27
Other jurists have greater difficulties defining the concept of maÊ¿mÅ«l bihi. Ê¿Abd AllÄh al-Ê¿AsaylÄn, a judge at the General Court in Riyadh, for example, stated that in his everyday practice, the maÊ¿mÅ«l bi-hi was formed informally. Al-Ê¿AsaylÄn compared this with the training under a particular shaykh: a student listening to his teacher repeatedly absorbs the teacherâs opinions and often refrains from questioning them. The same happens, al-Ê¿AsaylÄn explained, in his interaction with the appeal court. If the appeal court judges are dissatisfied with his judgments, they note their criticism in the file and refer the case back to him. Through reading the appeal court judgesâ feedback on his verdicts, he absorbs their opinions and slowly adjusts his practice accordingly.28 For al-Ê¿AsaylÄn, the development of the maÊ¿mÅ«l bihi is thus a subconscious process through which his understanding of the correct opinion is shaped.
It is difficult to assess at what point the idea of the maÊ¿mÅ«l bihi became fully recognized in the Saudi judiciary. During Frank Vogelâs research in the 1980s, his interview partners did not mention the maÊ¿mÅ«l bihi.29 On the other hand, the senior appeal court judges I spoke with claimed that the concept of the maÊ¿mÅ«l bihi was already present when they joined the judiciary.
The importance of the concept certainly increased when court decisions started to become publicly available. Although the published decisions were never binding for the judges, they slowly influenced the workings of the legal system. For instance, the head of a law firm in Riyadh, which mostly focuses on family and criminal law, stressed the importance of the compilations of court judgements as one of the most crucial resources in his daily work. Like lawyers in other legal systems, he now regularly used case-law to build his argument. When he tried to refer to case law before the court decisions were officially published, he had to rely on his personal contacts with other lawyers, which was only possible to a limited extent.30
Others, like the former appeal court judge Muḥammad al-FÄyiz, claimed that the publication of case-law had not influenced the way Saudi judges decide. Al-FÄyiz argued that court decisions are only one of the many sources that judges use in their decision-making process.31 Until today, Saudi judges rarely base their decisions explicitly on published court judgements. However, it is very likely that the published court judgements have made it easier to grasp the maÊ¿mÅ«l bihi and thus strengthened the concept of the prevailing practice.
2.3 The Formalization of the Prevailing Practice
2.3.1 The Prevailing Practice in the 1975 Code of the Judiciary
From the 1970s onwards, the kingâs codes (anáºima) slowly incorporated the prevailing practice. In doing so, they combined the fiqh concept with Anglo- American understandings of legal precedent. As a result, the differences between a system of legal precedents and the Ê¿ulamÄʾâs conceptualization of the prevailing practice gradually blurred. It was the 1975 Code of the Judiciary (NiáºÄm al-Qaá¸Äʾ) that first introduced the idea of a prevailing practice into statutory law. It obliges the chambers of the appeal court to follow their own precedents, unless the courtsâ general assembly allows them to decide otherwise. Article 14 of the code stipulated,
If one of the chambers of the court deviates from its former ijtihÄd or the former ijtihÄd of another chamber of the court while reviewing a case, the case is brought to the General Assembly [al-Hayʾa al-Ê¿Ämma] of the appeal court [Maḥkamat al-TamyÄ«z].32
Furthermore, the code gave the Higher Judicial Council the power to formulate general principles (mabÄdiʾ Ê¿Ämma), whenever the minister of justice considered this necessary.33 Moreover, the code specified that a research unit should be established in the Ministry of Justice, whose task would be to collect legal principles that were established by decisions of the appeal court and the Higher Judicial Council.34 The members of the research unit should check whether these principles would still be just, considering the changing living circumstances in the kingdom, and then send them to the Higher Judicial Council.35 At the time, these new mechanisms had little practical importance, and for more than forty years, no such principles were published.
2.3.2 The 2007 Reform of the Code of the Judiciary
In 2007, a new Code of the Judiciary was issued that extended the binding force of legal precedents. Now, the code did not refer to ijtihÄd but used the more general term âprinciplesâ (mabÄdiʾ), an expression that is rarely used in the writings of the Ê¿ulamÄʾ. The High Court (Maḥkama Ê¿UlyÄ), which was established in 2000, defined a legal principle as,
The general procedural or substantive rule which the High Court has established, and which is observed in the handling of cases and the issuing of verdicts and decisions.36
The new code revised the old Article 14, extended it, and adapted it to the new terminology. It now states,
If one of the High Courtâs chambers â in a case that it is reviewing â deviates from a legal principle [mabdaʾ] to which the chamber or another chamber at the same court has referred in an earlier case, or if one of the appeal courtâs chambers deviates from a principle, which was established by a chamber of the High Court, the issue is brought to the High Courtâs president, who refers it to the High Courtâs general assembly [al-Hayʾa al-Ê¿Ämma] to decide.37
At first sight, both the old and the new versions of Article 14 seem to install a system of legal precedent. However, despite the explicit regulations of Article 14, legal precedents are still not considered binding.38 Ê¿Abd al-Ê¿AzÄ«z al-Dughayther, a lawyer who regularly publishes on legal theory, wrote in a 2007 article in the Ministry of Justiceâs law journal that Saudi courts still followed Muḥammad bin IbrÄhÄ«mâs fatwas on this issue. Therefore, a decision could not be appealed on the grounds that it deviates from a legal precedent.39 As we will see when we turn to case-law in Chapters 6 and 7, this is still true, as Saudi appeal courts rarely revoke judgements based explicitly on a legal precedent.
Ibn Khunayn argued that also the new regulation in Article 14 expresses the concept of the prevailing practice. For him, the High Court is the administrator of the prevailing practice. The court, Ibn Khunayn maintained, does not only decide the case, but its judgements summarize the practice of the lower courts and condense it into abstract principles. Through this process, the prevailing practice becomes formally binding for the judges, with the High Court becoming the administrator of the prevailing practice.40
2.3.3 The 2018 Publishing of the âLegal Principlesâ
In January 2018, the research unit at the Ministry of Justice published a compilation of 2,323 âlegal principles and decisionsâ (mabÄdiʾ wa-qarÄrÄt).41 The unit extracted the grounds for the decisions from all judgements of the higher judicial institutions in the kingdom since the year 1971 and condensed them into principles, which mostly consist of only one short sentence. Arranged by numbers, the compilation of principles resembles a modern law code.
A few months before the principles were published, the minister of justice at the time, WalÄ«d al-SamaÊ¿ÄnÄ«, emphasized in a TV interview that the legal principles were not binding for the judges.42 Manṣūr al-ḤaydarÄ«, who at the time was the head of the Ministryâs research unit, held that at least the decisions of the High Court were binding, whereas other judgements would merely serve as guidance for the judges.43 This is surprising since Article 14 of the Code of the Judiciary does not make such a distinction. In the introduction of the compilation, al-ḤaydarÄ« wrote that the principles could, in fact, be called the prevailing practice (mÄ jarÄ Ê¿alayhi al-Ê¿amal) in Saudi courts.44
2.4 Legal Flexibility
2.4.1 Exceptions from the Prevailing Practice in Premodern Jurisprudence
The Ê¿ulamÄʾâs respect for normative pluralism is also reflected in their understanding of the prevailing practice. If a judge concludes that the prevailing practice is not suitable for the case in question, he is allowed to exceptionally follow another opinion. This individual departure from the prevailing practice should not be confused with the institutionalized application of a minority opinion discussed earlier.
Since medieval times, the Ê¿ulamÄʾ have debated whether judges could be allowed to depart from the practice in exceptional cases. This debate occurred under the more general question of whether a scholar could depart from the preponderant opinion (Ê¿udÅ«l Ê¿alÄ al-qawl al-rÄjiḥ), although some jurists explicitly distinguished between iftÄʾ and qaá¸Äʾ in their discussion.45 In the Saudi legal discourse, a clear distinction between iftÄʾ and qaá¸Äʾ is often missing and ideas and concepts discussed under the question of iftÄʾ are used in debates on the judiciary.
Some scholars completely rejected the idea of a departure from the preponderant opinion, most prominently the MÄlikÄ«s al-ShÄá¹ibÄ« (d. 1388) and al-MÄzirÄ« (d. 1141). Others argued that not everyone had the right to deviate from the preponderant opinion. The MÄlikÄ« uṣūl al-fiqh scholar al-ShinqÄ«á¹Ä« (d. 1817), for instance, maintained that only a layperson could deviate from the preponderant opinion when necessary, but not a mufti or a judge.46 Al-QarÄfÄ« (d. 1285), one of the great MÄlikÄ« scholars of MamlÅ«k Egypt, held that only a muqallid, and not a mujtahid, could deviate from the preponderant opinion. This, al-QarÄfÄ« argued, provided the muqallid with more legal flexibility.47
The majority of scholars, however, allowed a judge or a mufti to depart from the preponderant opinion or practice when necessary.48 The ShÄfiÊ¿Ä« jurist al-SubkÄ« (d. 1355), for example, stated,
It is permissible that the mufti chooses a rejected opinion [qawl marjūḥ] when he seeks religious benefit [maṣlaḥa dīniyya].49
Ibn Taymiyya, too, argued in one of his fatwas as follows:
To do something rejected [marjūḥ] can be preferable [arjaḥ] to achieve the preponderant benefit [maá¹£laḥa rÄjiḥa]. Similarly, to depart from the preponderant [rÄjiḥ] [opinion] can sometimes be preferable for the preponderant benefit.50
However, the jurists firmly emphasized that judges should only depart from the preponderant opinion in exceptional cases. Ibn al-Qayyim even considered the unnecessary use of a marjūḥ opinion âa most grievous sinâ (akbar al-kabÄʾir).51
Saudi Ê¿ulamÄʾ agree with the majority of their predecessors. Muḥammad bin IbrÄhÄ«m, for instance, referred to Ibn Taymiyyaâs fatwa and commented,
If there is a need, it is possible to use the marjūḥ opinion considering the benefit [maá¹£laḥa]. Generally, this is not used in all cases, but necessity must be proportionally [al-á¸arÅ«ra tuqaddar bi-qadarihÄ52 ].53
2.4.2 The Possibility to Diverge from the Prevailing Practice in the Saudi Judiciary
Today, the idea of diverging from the prevailing practice is well established in the Saudi judiciary. For example, Ibn Khunayn wrote in his commentary on the procedural code,
Exceptionally, it is allowed to turn to the non-mashhūr if the established requirements are met in this case and if the judge states the grounds.54
The departure from the prevailing practice is not just a theoretical possibility: in their decisions, judges occasionally follow other opinions when they find that the prevailing practice would lead to unjust results. However, the judges are required to do it consciously and transparently. Muḥammad bin IbrÄhÄ«m demanded the judges explicitly substantiate their reasons for deviating from the prevailing practice.55
Ê¿Äá¹£im bin Ê¿Abd AllÄh al-MutawwaÊ¿, a former Saudi judge and the author of a book on the subject, claimed that the departure from the prevailing practice is most visible in the decisions of the kingdomâs highest courts, which frequently follow other opinions.56 Most of the published decisions in which the High Court departs from the prevailing practice deal with criminal law.57 In 2000, the Higher Judicial Council even went so far as to establish the departure from the prevailing practice as a legal principle:
If the Council decides on a legal issue that it has decided on before and [now] holds that the [former] opinion is not appropriate to apply in this [case], then it is not bound to follow the former [decision].58
However, the judges must remain within the discursive boundaries of Islamic jurisprudence and as the Higher Judicial Council emphasized, every departure from the prevailing practice must be based on the Islamic revelation.59 Ibn Khunayn went one step further and even demanded that the marjūḥ opinion in the particular case should be more in line with the revelation than the prevailing opinion.60 Hence, the chosen marjūḥ opinion has, in any case, to be acknowledged as a legitimate minority opinion in Islamic jurisprudence.61
Until now, we have seen how Saudi jurists developed a new understanding of the prevailing practice that differs from earlier conceptualizations. A similar development can be witnessed when we look at the juristsâ views on appeal courts, which, besides the prevailing practice, are the most essential institution that establishes legal security in the kingdom.
3 The Extension of the Appeal Court System
3.1 Judicial Review in Premodern Islamic Jurisprudence
According to a well-known principle (qÄÊ¿ida) of Islamic jurisprudence, an ijtihÄd cannot be abrogated by any later ijtihÄd (al-ijtihÄd la yanquá¸u bi-mithlihi), whether by the same person or by another. This general principle has led some Western scholars of Islam to conclude that Islamic law prohibits judicial review.62
However, Islamic scholars also refer to accounts of the Prophet and Ê¿Umar bin al-Khaá¹á¹Äb, which express a more liberal stance towards judicial review. In his famous letter to AbÅ« MÅ«sÄ al-AshÊ¿arÄ«, Ê¿Umar allowed judges to review their former decisions, because he held that reviewing a decision is better than insisting on the wrong opinion.63 Moreover, the Prophet himself apparently revoked a judgement by Ê¿AlÄ« bin AbÄ« ṬÄlib.64
The Ê¿ulamÄʾ disagreed on whether and to what extent judicial review should be permitted in an Islamic legal system. The majority of Ê¿ulamÄʾ agreed that as long as the judgeâs ijtihÄd is valid, it cannot be touched. From their perspective, judicial review is only possible when the judgeâs ijtihÄd is invalid.65 Yet, if the judgeâs legal reasoning does not contradict the Quran and the Sunna and respects the consensus of the jurists (ijmÄÊ¿) on the issue in question, his ijtihÄd can only lose its validity when it was derived through an incorrect process.66 This would be the case when, for example, the judge was unfit or made major procedural mistakes, like issuing a verdict although no lawsuit was filed.67 On the other side, scholars from the today largely extinct áºÄhirÄ« school, and most importantly their founder DÄwÅ«d al-áºÄhirÄ« (d. 909), argued that a judgeâs verdict can be overturned by another judge, whenever he thinks that the decision is incorrect.68
Again, the limitation of judicial review roots in the Ê¿ulamÄʾâs acceptance of normative pluralism. The jurists argued that since nobody except God knows the correct ruling, it is impossible for others to assess whether a decision is wrong as long as the correct procedure of ijtihÄd is followed. Hence, provided the judge operates inside the discursive structures of Islamic jurisprudence and follows due process, his decision has to be respected.
3.2 Contemporary Saudi Views on Judicial Appeal
Contemporary Ê¿ulamÄʾ still debate to what extent judicial review can be in accordance with Islamic law. Muḥammad al-ZuḥaylÄ«, for instance, a Syrian jurist with close ties to Saudi Arabia, argued that Islamic law does not allow for second-instance courts. However, he only referred to appeal courts that deal with the facts of the case. Courts that review the mere application of the law, Muḥammad al-ZuḥaylÄ« held, are in accordance with Islamic law, as they assist the ruler in supervising the judiciary.69 FÄdÄ« ShaÊ¿Ä«shaÊ¿, an assistant professor at Qaṣīm University, maintained that appeal courts could be installed as long as they operate within the boundaries set by the Ê¿ulamÄʾ.70
The vast majority of Saudi jurists today consider judicial appeal a natural part of the Saudi legal system. Ibn Khunayn did not even see any difference between the conception of judicial appeal in premodern Islamic law and the appeal court structure in Saudi Arabia today.71 When asked about the aforementioned principle that an ijtihÄd cannot be revoked by any later ijtihÄd, Ibn Khunayn acknowledged the limited ways to withdraw an ijtihÄd. However, at the same time, he explained that all other accounts in the tradition equally show that judicial appeal is possible.72
For other jurists, the principle of the ijtihÄdâs firmness does not stay in the way of judicial appeal at all. SalmÄn al-MuhaynÄ«, a former judge at the General Court in Riyadh, argued that the first instance judgeâs decision together with the decision of the appeal court form one single ijtihÄd. The principle of the limited revocation of ijtihÄd only applies after the appeal court has finalized its decision. Hence, the concept of judicial appeal in Islamic law, he claimed, resembles the concept of res iudicata in Western legal systems.73
The Council of Senior Scholars also considered appeal courts to be in line with Islamic legal doctrine. In their decision on the permissibility of codification, the Councilâs members even called for the establishment of more appeal courts. Appeal courts, the Councilâs members argued, could point the lower-ranking judges to the shortcomings of their judgements. Furthermore, more appeal courts would help to end discrepancies between the first instance judgesâ decisions.74
3.3 The Development of Judicial Review in Saudi Arabia
3.3.1 Judicial Review in the Early Twentieth Century
It was mainly the resistance of an older generation of NajdÄ« scholars that long prevented Saudi Arabia from establishing an extensive appeal court system comparable to other countries in the region.75 After recapturing the ḤijÄz, King Ê¿Abd al-Ê¿AzÄ«z installed a supervising court (Maḥkamat al-MurÄqaba al-Qaá¸Äʾiyya) in 1927, which had the power to overturn the general courtsâ judgements.76 However, a judge could, at least in theory, defend his opinion if he provided textual evidence (dalÄ«l) for his view.77
Whereas Ê¿ulamÄʾ in the ḤijÄz were familiar with appeal courts from Ottoman times, in central Arabia, and especially in the Najd, local scholars refused to implement the kingâs judicial reforms.78 Since no appeal courts existed, the only way for the parties to appeal a judgement was to turn to the local governor, who, according to siyÄsa sharÊ¿iyya, supervised the judges and make them aware of potential flaws in their decisions.79
3.3.2 The Role of Muḥammad bin IbrÄhÄ«m Äl al-Shaykh
At the same time, an alternative system of judicial review slowly developed. Informal ways of appeal were already known in medieval Islamic legal systems. David Powers, for example, showed how in the Marinid dynasty of medieval Northern Africa, the chief judge of the capital city reviewed judgements issued by local and provincial judges.80
Similarly, respected NajdÄ« scholars long served as informal appeal courts, most importantly, Muḥammad bin IbrÄhÄ«m Äl al-Shaykh. His student Muḥammad bin Ê¿Abd al-RaḥmÄn al-QÄsim wrote that Muḥammad bin IbrÄhÄ«m âappealed judgements that needed reviewing and that he reviewed what was assigned to him by the rulers (wulÄt al-umÅ«r)â.81 In 1953, King SaÊ¿Å«d nominated Muḥammad bin IbrÄhÄ«m Grand Mufti of Saudi Arabia, thereby making him the primary authority for the judges in the Najd.82 Two years later, he was appointed to supervise the courts in the central and eastern provinces of the kingdom as well,83 whereas in the ḤijÄz and other areas in western Arabia, another member of the Äl al-Shaykh family, Ê¿Abd AllÄh bin Ḥasan,84 oversaw the courts.85 When Ê¿Abd AllÄh bin Ḥasan died in 1958, Muḥammad bin IbrÄhÄ«m also became responsible for the courts in western Saudi Arabia.86 Eventually, he was appointed âhead of the judiciaryâ (raʾīs al-qaá¸Äʾ), an honorary title that is still used when Saudi jurists refer to him today.
Muḥammad bin IbrÄhÄ«mâs powers exceeded that of an appeal court today. In addition to supervizing the courts, he was, among other things, also responsible for the appointment of schoolteachers and imÄms and controlled the Committee for the Promotion of Virtue (Hayʾat al-Amr bi-l-MaÊ¿rÅ«f), a government institution that enforced the Ê¿ulamÄʾâs understanding of Islamic morality in the public sphere.87
Al-QÄsimâs collection of Muḥammad bin IbrÄhÄ«mâs letters and fatwas allows insights into his work as an informal appeal court. Accordingly, Muḥammad bin IbrÄhÄ«m was regularly contacted by judges, court presidents, high-ranking government officials, and even the Royal Court (DÄ«wÄn al-MalikÄ«) to review court judgements or policy decisions on their accordance with Islamic law.88 Most cases were sent to him by government officials like the mayor of Riyadh. Following the doctrine of siyÄsa sharÊ¿iyya, the officials considered themselves the guarantors of the judiciary.
Muḥammad bin IbrÄhÄ«m not only reviewed court decisions but also advised the courts on general questions of Islamic jurisprudence. For example, in one case, the president of the court in AbhÄ asked Muḥammad bin IbrÄhÄ«m to provide him with legal opinions (kalÄm al-Ê¿ulamÄʾ) on how to deal with the withdrawal of a confession of illicit sexual intercourse (zinÄ).89 Furthermore, Muḥammad bin IbrÄhÄ«m was also contacted by individual judges and asked about the correct ruling in their cases. One judge from Riyadh, for instance, asked him about the validity of a will (waṣīya) that benefited only his sonsâ male children but not his daughtersâ sons.90
The style of many of his letters resembled that of Saudi appeal court judgements today, since, like present-day Saudi appeal courts, Muḥammad bin IbrÄhÄ«m was very careful with his recommendations and corrections.91
3.3.3 The Formalization of Judicial Review
From the 1960s on, the Saudi government, step by step, formalised the appeal system. Muḥammad bin IbrÄhÄ«m supported the kingâs judicial reforms. In a letter from 1958, he wrote that the planned reforms were not only in accordance with Islamic law but even required from an Islamic standpoint since they would protect the peopleâs rights.92
Soon, committees of scholars were established in the Najd to oversee the courts; however, they were not competent to overturn judgements, but whenever the committee and the first instance judge disagreed, Muḥammad bin IbrÄhÄ«m could review the case.93 For instance, in 1963, Muḥammad bin IbrÄhÄ«m decided on the punishment for two individuals accused of insulting each other, which was disputed between the supervizing committee and the first instance judge.94
In 1966, the first government guidelines were issued that regulated the ways court judgements could be revoked.95 Subsequently, the Higher Judicial Council and the Ministry of Justice were established, and Muḥammad bin IbrÄhÄ«m became their president.96 In 1969, Muḥammad bin IbrÄhÄ«m got sick, fell into a coma, and died after long suffering.97 Until today, no subsequent Islamic jurist has reached a comparable level of influence in the Saudi judiciary.
3.3.4 The Development of the Appeal Court System
In the subsequent decades, the appeal court system was gradually extended. In 1975, the Code of the Judiciary (NiáºÄm al-Qaá¸Äʾ), which addressed the structure of the Saudi court system, installed an appeal court (at the time called Maḥkama TamyÄ«z) that had jurisdiction over the whole kingdom. There is no evidence that scholars from the Najd refused the new courtâs authority. One of the reasons for the juristsâ support was certainly Muḥammad bin IbrÄhÄ«mâs efforts to legitimize judicial reforms among leading Ê¿ulamÄʾ.
The prime task of the appeal court was not to revoke judgements but to enter into a dialogue with the first-instance judges. The review was limited to questions of the application of the law; questions of fact were left to the first-instance judges. The appeal court should suggest a different view or, in case of procedural errors, ask the first-instance judges to correct them. The parties themselves, however, did not come into direct contact with the appeal court judges.
In severe criminal cases, the parties could appeal a judgment on a question of fact.98 This was limited to cases in which the first instance court decided to punish the defendant with death (qatl), cutting hands (qaá¹Ê¿ al-yad), or stoning (rajm). Saudi jurists emphasized that, due to the severe consequences for the defendant, not one judge alone could decide such cases, but a group of judges should give their opinion.
In 2000, a new Code of Civil Procedure (NiáºÄm al-MurÄfaÊ¿Ät al-SharÊ¿iyya) was introduced. Although the code mostly dealt with procedural issues, it also stipulated that the appeal court could only revoke a judgement after having debated the issue with the first instance judge.99 Article 187 of the 2000 Code of Civil Procedure specifies,
If the appeal court has remarks regarding the decision, it has to work out a statement and send it to the [first instance] judge. If he disagrees with the appeal courtâs recommendations, he has to answer and state his view after he has noted this in the court records. If, however, he agrees with them, then he has to inform the parties, listen to their response, register this in the court records, and judge accordingly. This judgement can be appealed if it contains alterations to the previous judgement.
The 1975 Code of the Judiciary initially installed only one appeal court for the whole kingdom. In 2008, the appeal court system was substantially extended by a new Code of the Judiciary. Subsequently, appeal courts were installed in the kingdomâs major cities.
3.3.5 The Judicial Review of Facts
The 2008 code gave appeal courts the power to also address the facts of a case.100 Today, the appeal courts have the competence to hear witness testimonies and consider new evidence. Article 17 of the 2008 Code of the Judiciary stipulates,
The appeal courts review decisions of the first instance courts that are open to appeal. They decide after hearing the parties according to the Code of Civil Procedure and the Code of Criminal Procedure [NiáºÄm al-IjrÄʾÄt al-JizÄʾiyya].
In severe criminal cases, a third level of judicial appeal was introduced. The High Court was now allowed to review de novo the appeal courtâs judgements that involved corporal punishments.101
In 2013, the appeal process for civil cases was again significantly changed by a new Code of Civil Procedure. Article 190 of the code specified that the right to appeal depends on the partiesâ presence at the court sessions.102 However, according to the published court judgements and interviews with judges, the appeal process still takes place without direct contact with the parties. Upon appeal, the case is forwarded directly to the appeal court, where it is considered by a minimum of three judges. The judges write short comments, which are sent to the first instance judge as a hardcopy or electronically. In difficult cases, the appeal court judges discuss the case with each other.103 Generally, the appeal court judges still only decide on questions of law, leaving out questions of fact. The new court structure, however, was implemented only gradually. In 2018, courtrooms for the trials were just about to be constructed.
Despite the extension of the appeal courts, judges still respect normative pluralism in their decision-making process and are very cautious about criticizing decisions of the first-instance courts, especially when it comes to questions of law. According to the published appeal court decisions, the judges never commented on questions of fact and hardly on questions of law. In none of the published cases that I have read did the appeal court render a new judgement. The appeal court judges only recommend that a different opinion should be followed. Technically, they can also refer the case back to another first-instance judge, which does not seem to happen regularly.
It remains to be seen whether the lenient attitude of the Ê¿ulamÄʾ, who largely support the current appeal system, will remain once the new court structure is implemented and appeal courts are allowed to review decisions de novo. One of the appeal court judges expressed his scepticism towards those changes. Although he held that judicial appeal was allowed in general, the judge was still unsure whether the introduction of an appeal court that dealt with questions of fact was in accordance with Islamic law.
4 Conclusion
The prevailing practice and the extension of the appeal courts both centralized control over the law. Although the individual judges retained their room for individual ijtihÄd in issues not covered by prevailing practice, their independence decreased. It was the judges at the higher courts who increasingly determined what opinion should be followed in many matters, a result of a long-standing process towards legal unification and centralization that began in the early twentieth century. Typically, literature on Islamic law associates standardization with the introduction of new forms of text, such as legal handbooks (mukhtaá¹£ar) or codified law. However, the developments in Saudi Arabia highlight the crucial role that the organization of the judicial system plays in shaping Islamic legal doctrine.
The interplay between the juristsâ reinterpretation of the prevalent practice and the expansion of the appellate court system fulfilled some of the functions of codification. It provided some form of legal stability while not requiring judges to adhere to a single school of Islamic jurisprudence or written code. In fact, the prevalent practice could be seen as a form of proto-codification.
The developments in Saudi Arabia also demonstrate the caution that must be exercized when drawing conclusions based solely on theoretical writings on ijtihÄd. While the ideal of Saudi jurists is unrestricted ijtihÄd, they recognize that a functional legal system requires at least a certain level of legal certainty.
Martin Shapiro, âIslam and Appeal,â California Law Review 68, no. 2 (1980): 350; David Powers convincingly showed that Martin Shapiro, who is not a scholar of Islamic law by training, was to some extent misinformed by older scholarship on judicial review in Islamic law and thus exaggerated its limitations. Although many of his claims have lost their validity, his main argument regarding the political power of appeal mechanisms, I think, remains convincing. See David Powers, âOn Judicial Review in Islamic Law,â Law & Society Review 25, no. 2 (1992).
See, for example, Ê¿Abd al-Ê¿AzÄ«z bin SaÊ¿d al-Dughayther, âḤujjiyyat al-sawÄbiq al-qaá¸Äʾiyya,â Majallat al-Ê¿Adl 34 (1428/2007): 184.
Ê¿Äá¹£im bin Ê¿Abd AllÄh al-MutawwaÊ¿, Al-Ê¿UdÅ«l Ê¿alÄ al-qawl al-rÄjiḥ fÄ« al-futyÄ wa-l-qaá¸Äʾ (Riyadh: DÄr al-MaymÄn, 1439/2018), 424.
Ibid., 387.
This should not be confused with the practice of the people of Medina (Ê¿amal ahl al-Madina), which is considered a source of the law in the MÄlikÄ« school.
Al-MutawwaÊ¿, Al-Ê¿UdÅ«l Ê¿alÄ al-qawl al-rÄjiḥ, 403.
Schacht, Introduction to Islamic Law, 62.
Most likely, Ibn Nujaym was referring to Zufar bin al-Hudhayl (d. 774), a student of Abū Ḥanīfa and one of the most prominent early Ḥanafī scholars.
Ibn Nujaym Al-Baḥr al-rÄʾiq sharḥ kanz al-daqÄʾiq (Beirut: DÄr al-Kutub al-Ê¿Ilmiyya, 1434/2013), 4:334.
Cited in Ibn Ê¿ÄbidÄ«n, Radd al-muḥtÄr, 6:146.
Ibn Mufliḥ, al-MardÄwÄ«, and al-BaÊ¿lÄ«, KitÄb al-FurÅ«Ê¿, 6:136.
In a sharikat al-Ê¿inÄn, the partners agree to share their capital in order to generate profit. In contrast to the sharikat al-mufÄwada, the other important form of limited partnership in Islamic law, the partnersâ assets in a sharikat al-Ê¿inÄn can be unequal and the partners can freely agree on the distribution of responsibilities and the partnershipsâ profits. While all schools accept the general idea of a sharikat al-Ê¿inÄn, they considerably differ on important details. See Norbert Oberauer, Islamisches Wirtschafts- und Vertragsrecht: Eine Einführung (Ergon: Würzburg, 2017), 201â6.
Ibn Mufliḥ, al-MardÄwÄ«, and al-BaÊ¿lÄ«, KitÄb al-FurÅ«Ê¿, 7:106.
The relationship between the contemporary Saudi understanding and premodern ideas of the prevailing practice is complicated. Ibn Khunayn, for instance, considered the concept of the prevailing practice a natural part of the Ḥanbalī tradition. Interview with Ibn Khunayn in his home in Riyadh, 24 April 2018.
Al-QÄsim, FatÄwÄ wa-rasÄʾil, 11:30.
Ibid.
Ibid., 37.
Ibid., 413.
Al-MutawwaÊ¿, Al-Ê¿UdÅ«l Ê¿alÄ al-qawl al-rÄjiḥ, 424.
Ê¿Abd AllÄh bin Muḥammad Äl Khunayn, Al-KÄshif fÄ« sharḥ niáºÄm al-murÄfaÊ¿Ät al-sharÊ¿iyya al-saÊ¿Å«dÄ« (Riyadh: DÄr Ibn Farḥūn, 1433/2012), 1:15.
Interview with Ibn Khunayn in his home in Riyadh, 24 April 2018.
It was only when I asked more detailed questions in a second meeting that Ibn Khunayn told me that he had used the equation of the maÊ¿mÅ«l bihi with judicial precedent to introduce me to the topic. He then referred me to an article on legal precedent that he had written a couple of years before for a conference at the ImÄm University in Riyadh.
Ê¿Abd AllÄh bin Muḥammad Äl Khunayn, âWorking paper for the conference âal-SawÄbiq al-Qaá¸Äʾiyya wa-l-IÊ¿timÄd Ê¿alayha fÄ« al-Qaá¸Äʾâ [Legal precedents and the reliance on them in the judiciary] at the ImÄm Muḥammad bin SaÊ¿Å«d Islamic University in Riyadh on the 20.11.1434/25.9.2013â (1434/2013), 5.
Ibn Khunaynâs concept of the prevailing practice encompasses the two understandings in the Islamic legal tradition that we discussed earlier. Firstly, the systematic and institutional application of a generally refused (marjūḥ) minority opinion and secondly, the unified application of what at the time is considered the preponderant (rÄjiḥ) view. See Ibid., 12â13.
Al-QÄsim, FatÄwÄ wa-rasÄʾil, 7:277.
Ibid., 333.
Interview with Ḥamd al-Khuá¸ayrÄ« in his office at the Riyadh Court of Appeal, 25 July 2018.
Interview with Ê¿Abd AllÄh al-Ê¿AsaylÄn in a hotel in Riyadh, 23 July 2018.
Personal conversation with Frank Vogel at a conference in Tampere, Finland, 7 June 2018.
Interview with Manṣūr al-Dhufayrī in his law firm in Riyadh, 13 May 2018.
Written correspondence with Muḥammad bin Ê¿Abd al-Ê¿AzÄ«z al-FÄyiz, 27 September 2017.
Article 14 of the 1395/1975 Code of the Judiciary.
Article 8 Nr. 1 of the 1395/1975 Code of the Judiciary; The code is printed in 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).
Article 89 of the 1395/1975 Code of the Judiciary.
Article 89 h) of the 1395/1975 Code of the Judiciary.
Markaz al-Buḥūth, Al-MabÄdiʾ wa-l-qarÄrÄt al-á¹£Ädira min al-Hayʾa al-Qaá¸Äʾiyya al-Ê¿UlyÄ wa-l-Hayʾa al-DÄʾima wa-l-Ê¿Ämma bi-Majlis al-Qaá¸Äʾ al-Ê¿ÄlÄ wa-l-Maḥkama al-Ê¿UlyÄ min Ê¿Äm 1391 ilÄ Ê¿Äm 1437 (Riyadh: Markaz al-Buḥūth, 1438/2017), 33 (Principle 1).
Article 14 of the 1428/2007 Code of the Judiciary.
Generally, Saudi scholars rarely refer to Article 14. Ê¿Äá¹£im al-MutawwaÊ¿ is a notable exception. He sees Article 14 as proof that the prevailing practice, in the way earlier scholars understood it, is recognized by the Code of the Judiciary. Al-MutawwaÊ¿, Al-Ê¿UdÅ«l Ê¿alÄ al-qawl al-rÄjiḥ, 421.
Al-Dughayther, âḤujjiyyat al-sawÄbiq al-qaá¸Äʾiyya,â Majallat al-Ê¿Adl 34, 196.
Äl Khunayn, âWorking Paper,â 15.
Markaz al-Buḥūth, Al-MabÄdiʾ wa-l-qarÄrÄt al-á¹£Ädira min al-Hayʾa al-Qaá¸Äʾiyya al-Ê¿UlyÄ wa-l-Hayʾa al-DÄʾima wa-l-Ê¿Ämma bi-Majlis al-Qaá¸Äʾ al-Ê¿ÄlÄ wa-l-Maḥkama al-Ê¿UlyÄ min Ê¿Äm 1391 ilÄ Ê¿Äm 1437 (Riyadh: Markaz al-Buḥūth, 1438/2017).
The video was sent to me by the former judge and lawyer SalmÄn al-MuhaynÄ«.
Interview with Manṣūr al-Ḥaydarī in the Ministry of Justice in Riyadh, 8 May 2018.
Markaz al-Buḥūth, Al-MabÄdiʾ wa-l-qarÄrÄt, 14.
See al-MutawwaÊ¿, Al-Ê¿UdÅ«l Ê¿alÄ al-qawl al-rÄjiḥ, 435.
Al-ShinqÄ«á¹Ä«, Nashr al-bunÅ«d Ê¿alÄ marÄqÄ« al-saÊ¿Å«d (UAE: á¹¢undÅ«q IḥyÄʾ al-TurÄth al-IslÄmÄ«, n.d.), 2:276.
Al-QarÄfÄ«, Al-IḥkÄm fÄ« tamyÄ«z al-fatÄwÄ Ê¿an al-aḥkÄm (Beirut: DÄr al-BashÄʾir al-IslÄmiyya, 1416/1995), 92. However, the majority of the jurists seem to hold that only a mujtahid and not a muqallid could deviate from the preponderance opinion.
See Äl Khunayn, Tawṣīf al-aqá¸iya, 1:395â97.
The quote is printed in ibid., 401.
Ibn Taymiyya, MajmÅ«Ê¿at al-fatÄwÄ, 34:198.
Ibn al-Qayyim, IÊ¿lÄm al-muwaqqiÊ¿Ä«n, 835.
Muḥammad bin IbrÄhÄ«m is referring to a well-known principle of Islamic jurisprudence (qÄÊ¿ida fiqhiyya). For a comprehensive explanation of the principle, see Luqman Zakariyah, Legal Maxims in Islamic Criminal Law: Theory and Applications (Leiden: Brill, 2015), 151.
Al-QÄsim, FatÄwÄ wa-rasÄʾil, 11:272.
Ê¿Abd AllÄh bin Muḥammad Äl Khunayn, Al-KÄshif fÄ« sharḥ niáºÄm al-murÄfaÊ¿Ät al-sharÊ¿iyya al-saÊ¿Å«dÄ« (Riyadh: DÄr Ibn Farḥūn, 1433/2012), 1:15.
Al-QÄsim, FatÄwÄ wa-rasÄʾil, 2:16.
Al-MutawwaÊ¿, Al-Ê¿UdÅ«l Ê¿alÄ al-qawl al-rÄjiḥ, 640.
These decisions of the High Court are listed in ibid., 149.
Markaz al-Buḥūth, Al-MabÄdiʾ wa-l-qarÄrÄt, 486 (Principle 1923).
Ibid., 485 (Principle 1918).
Äl Khunayn, Tawṣīf al-aqá¸iya, 1:403â4.
Al-MutawwaÊ¿, Al-Ê¿UdÅ«l Ê¿alÄ al-qawl al-rÄjiḥ, 144.
For an overview of the scholarship on judicial appeal in Islamic law, see Powers, âOn Judicial Review,â 316.
Ibn al-Qayyim, IÊ¿lÄm al-muwaqqiÊ¿Ä«n, 69â70.
ShaÊ¿Ä«shaÊ¿, Al-TanáºÄ«m al-qaá¸Äʾī al-jadÄ«d, 430.
Some scholars even argued that judicial appeal is not allowed, even if the judgeâs mistake is apparent. See ibid., 432.
See Muḥammad bin Muá¹£á¹afÄ al-ZuḥaylÄ«, Al-QawÄÊ¿id al-fiqhiyya wa-taá¹biqÄtuhu fÄ« al-madhÄhib al-arbaÊ¿a (Damascus: DÄr al-Fikr, 1427/2006), 394.
ShaÊ¿Ä«shaÊ¿, Al-TanáºÄ«m al-qaá¸Äʾī al-jadÄ«d, 434.
Cited in ibid., 432.
Al-ZuḥaylÄ«, Al-TanáºÄ«m al-qaá¸Äʾī, 99.
ShaÊ¿Ä«shaÊ¿, Al-TanáºÄ«m al-qaá¸Äʾī al-jadÄ«d, 434â35.
Ê¿Abd AllÄh bin Muḥammad Äl Khunayn, Al-KÄshif fÄ« sharḥ niáºÄm al-murÄfaÊ¿Ät al-sharÊ¿iyya al-saÊ¿Å«dÄ« (Riyadh: DÄr Ibn Farḥūn, 1433/2012), 2:191.
Interview with Ibn Khunayn in his home in Riyadh, 24 April 2018.
Interview with SalmÄn al-MuhaynÄ« in his law firm in Riyadh, 15 May 2018.
Al-AmÄna al-Ê¿Ämma li-Hayʾat KibÄr al-Ê¿UlamÄʾ, AbḥÄth hayʾat kibÄr al-Ê¿ulamÄʾ, 3:238.
For an overview of the Saudi judiciary at the beginning of the twentieth century see Steinberg, Religion und Staat, 343â95.
Äl Khunayn, Al-KÄshif, 2:192.
Saudi judges long refused to state the grounds for their verdicts. By 2019, the Ministry of Justice still urged judges to make their legal reasoning more transparent.
Ê¿Abd al-Malik bin Aḥmad Äl al-Shaykh, Taá¹awwur idÄrat al-qaá¸Äʾ fÄ« al-Mamlaka al-Ê¿Arabiyya al-SaÊ¿Å«diyya (Riyadh: N.p, 1431/2010), 54.
Ibid., 64. Based on the writings of Harry St. John Philby, Guido Steinberg argued that the review of court decisions was even the prime task of the local rulers at that time. Steinberg, Religion und Staat, 356.
Powers, âOn Judicial Review.â
Al-QÄsim, FatÄwÄ wa-rasÄʾil, 1:19â20.
Äl al-Shaykh, Taá¹awwur idÄrat al-qaá¸Äʾ, 66.
Al-QÄsim, FatÄwÄ wa-rasÄʾil, 1:20.
For information on Ê¿Abd AllÄh bin Ḥasan, see Commins, Wahhabi Mission, 93.
Äl al-Shaykh, Taá¹awwur idÄrat al-qaá¸Äʾ, 66.
Al-QÄsim, FatÄwÄ wa-rasÄʾil, 1:20.
The Committee was commonly known as the Saudi âreligious police.â Äl al-Shaykh, Taá¹awwur idÄrat al-qaá¸Äʾ, 67â68.
One letter, for example, is addressed to Crown Prince Fayá¹£al, who later became one of the most important kings in Saudi history. The crown prince had asked the shaykh whether it was allowed to execute a person accused of producing alcohol. See Al-QÄsim, FatÄwÄ wa-rasÄʾil, 12:69â70.
Ibid., 12:51.
Ibid., 9:228â29. In general, testators are expected to treat their children and grandchildren (awlÄd) equally. However, for Saudi jurists, this often does not include grandchildren from the daughterâs side (awlÄd al-banÄt).
In his published letters, I did not come across any evidence that Muḥammad bin IbrÄhÄ«m annulled decisions by first instance courts.
Al-QÄsim, FatÄwÄ wa-rasÄʾil, 12:380. See also Äl al-Shaykh, Taá¹awwur idÄrat al-qaá¸Äʾ, 96.
Al-QÄsim, FatÄwÄ wa-rasÄʾil, 1:20.
Ibid., 12:60â61.
Äl Khunayn, Al-KÄshif, 2:192.
Äl al-Shaykh, Taá¹awwur idÄrat al-qaá¸Äʾ, 68â70.
Al-QÄsim reports that his coma continued until 1978, but this is most likely due to a mix-up of dates. See Al-QÄsim, FatÄwÄ wa-rasÄʾil, 1:23.
Criminal judgements of the appeal courts could be revoked by the Higher Judicial Council. See Ê¿AlÄ« bin Ramaá¸Än BarakÄt, Al-WasÄ«á¹ fÄ« sharḥ niáºÄm al-qaá¸Äʾ al-saÊ¿Å«dÄ« al-jadÄ«d (Riyadh: Maktabat al-QÄnÅ«n wa-l-Iqtiá¹£Äd, 1433/2012), 73.
Before the new Code of Civil Procedure was issued in 2000, court procedure was mainly regulated by the 1936 Procedural Code (NiáºÄm al-MurÄfaÊ¿Ät), which was only amended once, in 1953, and therefore did not address the workings of the appeal court. See Äl Khunayn, Al-KÄshif, 1:5.
According to Article 185/2 of the Code of Civil procedure, the Higher Judicial Council can decide that some legal questions are not open for appeal. However, I have not come across any such limitations.
Article 11 of the 1428/2007 Code of the Judiciary. In general, the role of the High Court is difficult to grasp. The 1428/2007 Code of the Judiciary extended its competences immensely. Now, at least in theory, all judgements that are potentially in conflict with Islamic law or the anáºima can be appealed a second time. Yet, I have never encountered published judgements in which the High Court was involved.
If, however, the appealing party failed to appear at court, a sixty-day period was granted in which the party could demand the resumption of the appellate procedure.
Judge al-Khuá¸ayrÄ« and Judge JÄr AllÄh, both judges at the Riyadh Court of Appeal, showed me in detail how they work on files that they receive from the first instance courts.