This book has investigated the Saudi jurists’ understanding of an Islamic judiciary and how this understanding is reflected in the Saudi legal system, its institutions, and the courts’ practice.
I have argued that there has been a significant shift in the understanding and application of Islamic law in the Saudi judiciary over recent decades, largely without any interference from the state. Despite the Saudi government’s claims of comprehensive reform in the legal sector, I have demonstrated that many of these initiatives, including the codification of Islamic law, are a continuation of past efforts by Islamic jurists to adapt the idea of an Islamic legal system to the changing social and economic conditions in the kingdom.
By adopting the viewpoint of the ʿulamāʾ, I have attempted to overcome commonly held dichotomies such as “exceptional” vs. “normal,” “progressive” vs. “traditional,” and “liberal” vs. “conservative,” which are frequently used to describe the Saudi judiciary. From the perspective of the ʿulamāʾ, the ideal Islamic judiciary addresses the conflicts that arise in court today through a re-evaluation of the Islamic legal tradition. Two main aspects guide the jurists’ approach to Islamic jurisprudence, the first being the influence of the Salafī tradition, which demands a critical attitude towards established opinions in fiqh. Second, the ʿulamāʾ view themselves as serving the needs of a society, which, they acknowledge, is changing with time and the introduction of new customs and technologies. As a result, contemporary Saudi jurists incorporate opinions from various schools and traditions, resulting in a distinct approach to Islamic law.
I also questioned the (still) widespread narrative that the codification of Islamic law leads to a rupture in the way Islamic law is understood. The recent codification in Saudi Arabia is not considered a break with the Islamic legal tradition by the ʿulamāʾ themselves, nor is it introducing new rulings. Instead, codification in Saudi Arabia should be viewed as the next step in a long-standing debate among Saudi jurists over standardizing Islamic law.
1 Tradition and Reform: Reinterpreting the Islamic Legal Tradition
Three main aspects result from the jurists’ re-evaluation of the Islamic legal tradition: First, Saudi ʿulamāʾ have deviated from the teachings of the Ḥanbalī school, with which they are usually associated, and in some aspects also from rulings shared by all schools of Islamic jurisprudence. This is not only visible in their daily practice at court but also in their understanding of an Islamic judiciary. Before the codification of Islamic law, Saudi judges included opinions from all schools of Islamic jurisprudence in their decisions. While the Ḥanbalī school still played an essential role – most references were made to books written by Ḥanbalī jurists – the analysis of Saudi court practice showed that the application of non-Ḥanbalī opinions was a reality. The ʿulamāʾ recognize the schools as necessary vehicles to structure legal knowledge but reject their binding authority, which in their eyes constitutes a forbidden innovation in Islam. Although the Saudi critique of the schools’ authority dates back to the eighteenth century with the teachings of Muḥammad bin ʿAbd al-Wahhāb, the widespread use of non-Hanbali opinions is a relatively recent phenomenon. The ʿulamāʾ use the possibility to deviate from the schools’ teachings to adapt Islamic law to modern life. They do not understand these changes as a break with the tradition but rather as a sign of the tradition’s vitality. However, the Salafī ideal of legal reasoning as an individual journey, in which the judge determines the correct ruling on a case-to-case basis through the interpretation of the revelation, was only partly visible in court practice even before the codification. Yet, the focus on the circumstances of the individual case remains an important ideal, which from the perspective of the ʿulamāʾ distinguishes Islamic law from contemporary Western law.
Second, the jurists’ desire to establish a functioning legal system led to the introduction of two institutions that ensured the consistent application of Islamic law in the courts: the concept of prevailing practice and an extensive appeal court system. Leading Saudi ʿulamāʾ reinterpreted the premodern idea of a prevailing practice of the courts and obliged the judges at the first instance level to follow the opinions of high-ranking scholars and judges in most legal questions. At the same time, the appeal court system was gradually expanded and guaranteed the judges’ compliance with the prevailing practice. While premodern ʿulamāʾ largely rejected the concept of judicial appeal (as it is generally understood today), appeal courts have become an integral part of the Saudi jurists’ conception of an Islamic legal system. These reforms had significant implications for the balance of power between the Saudi government and the judiciary: by appointing appeal court judges and promoting certain Islamic scholars, the Saudi government increasingly gained control over the judiciary.
Thirdly, the jurists have included codified law in their conception of an Islamic legal system. This has resulted in the general acceptance of the king’s codes (anẓima) that were meant to supplement Islamic law. However, the question of a binding codification of Islamic law was long disputed. The main reason for the jurists’ refusal of a binding codification was their fear that it would make Islamic law inflexible. Like many European legal theorists in the past, the ʿulamāʾ believed that abstract rulings could not deliver justice. Instead, the law must always be adapted to individual cases. These concerns, however, are increasingly swept away by the practical demands of twenty-first-century capitalism and a society that demands a transparent and predictable judiciary.
Hence, the Saudi judiciary is not the last surviving premodern Islamic legal system as it is often portrayed. While the ʿulamāʾ’s extensive references to premodern books suggest that they are stuck in the past, this impression is misleading. Research on premodern Islamic law can thus only insufficiently explain contemporary phenomena in the Saudi judiciary.
2 The Continuing Hegemony of Islamic Jurisprudence
Is the Saudi judiciary therefore on its way to becoming “normal”? Chibli Mallat has recently argued that the Saudi judiciary is undergoing a process of “normalisation.”1 He claims that the Saudi legal system was long an exception among legal systems in the Middle East but has now lost its uniqueness and become similar to other legal systems. Mallat is right when we look at the publication of court cases, the introduction of codified law, and the establishment of an appeal court system. However, as long as the ʿulamāʾ control the judiciary, their unique understanding of Islamic law will continue to shape the Saudi legal system, and most of the unique characteristics of Saudi legal thought will persist in the foreseeable future.
It is important to keep in mind that the codification of Islamic law does not abolish siyāsa sharʿiyya but rather represents the next step in the evolution of the doctrine, as Islamic law is still following the ʿulamāʾ’s interpretation, as illustrated by the codification of family and inheritance law in 2022. Unlike in many other Arab countries, where the introduction of codification limited the role of Islamic law to family and inheritance law, no such development is expected to take place in Saudi Arabia. Moreover, the ongoing codification of Islamic law will not diminish the dominant role Islamic jurisprudence plays in the Saudi legal system. The hegemony of Islamic jurisprudence over codified law is today already visible in the way Saudi judges approach the king’s codes, as we have seen in Chapter 6. The judges consider them texts that have to be interpreted based on Islamic jurisprudence alone. It is more than likely that judges will approach future codifications in the same way.
As discussed in Chapter 3, codification is usually connected to a certain legal epistemology. For the ʿulamāʾ, codification means something very different than for a German or British lawyer.2 Hence, as long as the ʿulamāʾ occupy their position in the legal system, the codification of Islamic law alone will not change the dominant way of legal thinking. Although there are rumors that judges who are not trained in Islamic jurisprudence may be appointed in some courts, replacing the ʿulamāʾ will be difficult. Not only are they specialists in adjudication, but they (still) play a crucial role in providing religious legitimacy to the Saudi king.
3 The Global Dimension of the Saudi Legal Discourse
As the birthplace of Islam, Saudi Arabia occupies a unique symbolic place in the Muslim world. The kingdom’s jurists have successfully used this symbolic capital to establish themselves as the guardians of Islamic orthodoxy in the contemporary world. Whereas Saudi scholars stood at the margins of the Muslim intellectual world at the beginning of the twentieth century, their ideas today dominate Islamic discourses in many countries inside and outside of the Arab world. Saudi understandings of Islamic law are increasingly becoming a reference point for Muslims all around the globe, especially for younger generations.
The support of the Saudi kings is an important factor in the jurists’ growing influence. Siyāsa sharʿiyya obliges the kings not only to follow Islamic law in their actions but also to help propagate Saudi views on sharīʿa. Financed by the king, Saudi organizations have in the last decades distributed writings by Saudi ʿulamāʾ to mosques and Islamic cultural centers worldwide. Moreover, Islamic universities in the kingdom attract thousands of international students from all over the Muslim world, who, once returned to their home countries, apply Saudi understandings of Islamic law in their teaching or judging.3
However, it was the internet that put Saudi views at the center of contemporary discourses on Islam and Islamic law. A quick search in English or Arabic on a random question of Islamic jurisprudence most likely leads to the website of a Saudi scholar. A younger generation of Saudi ʿulamāʾ, like Muḥammad bin ʿAbd al-Raḥmān al-ʿArīfī or Ṣāliḥ bin ʿAwād al-Maghāmsī, have managed to gain a massive social media following that is not anymore limited to the kingdom.4
The world will thus closely look at how and whether Saudi efforts to combine Islamic orthodoxy with twenty-first-century capitalism, the digital revolution, and other challenges of our times will succeed. The development of the Saudi judiciary will show if and how Islamic jurisprudence can survive as a living tradition.
Chibli Mallat, The Normalization of Saudi Law (Oxford: Oxford University Press, 2022).
See Dominik Krell, “Codification and the Legacy of Islamic Jurisprudence,” Oriente Moderno (forthcoming).
In early 2024, I had the chance to interview a large number of Islamic judges (cadis) in the Gambia. Many of the cadis had been educated in Saudi Arabia. Although they were not simply imitating Saudi scholars, their education in the kingdom undoubtedly influences their approach to Islamic law. This is most visible in their approach to the schools of jurisprudence. While the cadis still respect the authority of the Mālikī school, which prevails in the Gambia, they also regularly apply opinions from other schools.
In 2023, more than 19.2 million users followed al-ʿArīfī’s personal twitter account (now X), which made it the most followed Arab-speaking account on the platform. He has more followers than the Dalai Lama (in English, 19.1 million) and the pope (in English, 18.9 million) and almost as many followers as Al Jazeera (in Arabic, 19.9 million).