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Saudi Arabia

By:
Nabil Saleh
Source:
The [Oxford] Encyclopedia of Islam and Law What is This? An English-language legal reference for scholars of Islamic studies and Western engaged readers presenting the history and development of Islamic Law.

Saudi Arabia

At the end the eighteenth century the regions that today makes up the Kingdom of Saudi Arabia were not under unified control. The Ottomans controlled the Western coastal area known as the Hijaz, location of the holy cities of Mecca and Medina. One eastern area, called Dirʿiyyat Nejd, was ruled by a figure named Muḥammad ibn Saʿūd. At this time most Arabians followed the Shāfiʿī school of law, although in the Ottoman cities of the Hijaz Ḥanafī law dominated the legal diversity of Mecca and Medina. In the Nejd, however, a charismatic religious preacher named Muḥammad ibn ʿAbd al-Wahhāb (d. 1792) was calling for a return to the pure, original Islam as taught by Aḥmad ibn Ḥanbal (d. 855).

The history of modern Saudi Arabia began when Ibn Saʿūd allied himself with Ibn ʿAbd al-Wahhāb and set out to conquer large parts of the Arabian Peninsula in the name of what would become known, mostly by detractors, as the Wahhābī movement. Over the next hundred years the House of Saud established nominal control over much of Arabia. After many decades during which the fortunes of the Saudi/Wahhābī alliance rose and fell twice, in the early twentieth century the current and most successful dispensation of the state emerged. In 1912 the House of Saud, led by the dynamic Abdulaziz Ibn Saud (ʿAbd al-ʿAzīz ibn Saʿūd), established the Ikhwān, a militia movement to mobilize nomadic tribes behind the Wahhābī/Ḥanbalī creed, use them as powerful shock troops, and then settle them in an established state. In 1924–1925 the House of Saud finally realized their goal of conquering the Hijaz, and began to centralize control.

King ʿAbd al-ʿAzīz faced some resistance as he built a state structure in a country with strong tribal traditions and deep religious and regional divisions. As early as 1928 the Ikhwān began to agitate against the modernization of the region and protested the king’s cooperation with non-Muslim powers as well as his unwillingness to continue to expand the Wahhābī revivalist mission into British-controlled Iraq. The Ikhwān were defeated by King Abdulaziz in 1929, allowing for freer reforms. These were accelerated after oil was discovered in the Eastern Provinces of the kingdom and oil production ramped up in the 1930s. Thereafter, Saudi rulers grappled with the opportunities and challenges of vast new wealth.

Proclamation of the State of Saudi Arabia/Reforms and Troubles

In 1932 King ʿAbd al-ʿAzīz formally proclaimed the establishment of the new Kingdom of Saudi Arabia. In keeping with Wahhābī/Ḥanbalī ideology, the Qurʾān and sunnah were declared to be the state’s “constitution.” The legal and educational systems were also structured in accordance with Wahhābī/Ḥanbalī understandings of Islamic law and theology.

More important still, the Saudi government recognized that the king had the power to supplement and even, in some cases, replace the rules of fiqh with statutory rules that promoted the welfare of the kingdom and its subjects. It was understood that these statutes, styled as “regulations” (anẓimah), must not contradict rules clearly announced in scripture. Nonetheless, they might be inconsistent with rules that scholars had derived by analogy from them. The state thus developed, alongside its Sharīʿah judiciary, institutions that could develop and enforce statutory regulations.

In accordance with the Islamic principle of consultation (shūrā) the king created successive consultative councils and eventually established a Council of Ministers in 1953. In 1958 this advisory Council of Ministers was developed into a formal decision-making body with legislative, executive, and administrative functions.

The Evolving Structure of the Modern Saudi State

In December 1932, following the proclamation of the Kingdom of Saudi Arabia, the king issued Niẓām Majlis al-Wukalāʾ (Regulation of the Council of Delegates). The council contained multiple delegates: one each for foreign affairs, financial affairs, and the Consultative Council. The Council of Delegates functioned for two decades until the creation of the Council of Ministers in 1953. From that period on new government regulations were promulgated under the formal appellation of “Regulations.” The rules governing commerce, business organizations, agency, banking, etc., were all styled as regulations rather than law, which can only be created by God. Some of these regulations were controversial among religious conservatives. The kingdom, however, never wavered in trying to cautiously modernize its economy and society in a way that the kings considered to be consistent with Ḥanbalī law and Islamic values.

King ʿAbd al-ʿAzīz announced the establishment of the Council of Ministers in 1953 with wide authority on foreign and domestic affairs. He died a month later and it was left to his son Saʿūd to preside over the first session of Council of Ministers. King Saʿūd’s reign saw a financial and monetary crisis brought on by unwise economic policies and much squandering of the country’s newly found wealth. During the crisis the reigning family stepped in, and Crown Prince Fayṣal was given full authority to establish the kingdom’s policies in all respects. This led to great changes.

Fayṣal reorganized the Council of Ministers into a formal decision-making body with legislative, executive, and administrative functions. In November 1964 Fayṣal formally deposed his brother, King Saʿūd, and initiated changes. In 1972 Saudi Arabia began to take control of Aramco (originally the Arabian American Oil Company), which produces all of Saudi Arabia’s oil. By 1974 Saudi Arabia had increased its ownership share to 60 percent, and in 1980 it took full control of Aramco. Saudi Aramco today has the largest crude oil reserves in the world and the largest daily oil production.

In the wake of the kingdom’s need to call on American protection against Saddam Hussein in 1990–1991, the Saudi government moved to create more institutions of democratic government. On 1 March 1992 King Fahd issued a new statute on the Basic System of Governance, a document that plays the role of a constitution. The statute is divided into nine chapters which comprise eighty-three articles altogether. Article 1 leaves no doubt about the identity, nature, and adherence of the kingdom, which is described as a sovereign Arab Islamic State whose religion is Islam and whose constitution is the Qurʾān and the sunnah. Article 7 of the statute stipulates that the government in the Kingdom of Saudi Arabia derives its authority from the Qurʾān and the sunnah of the Prophet, which are the ultimate sources of reference for the constitution and the laws of the state.

In terms of structure, article 44 says that the authorities of the state consist of the judicial authority, the executive authority, and the regulatory authority and that the king is the ultimate arbiter for these authorities. Article 46 provides that “the Judiciary is an independent Authority. The decisions of judges shall not be subject to any authority other than the authority of the Islamic Shariah.” This does not mean, however, that the state is to be governed by fiqh as interpreted by judges. It confirmed that there was room for the king to make statutes so long as these are consistent with Sharīʿah principles. Article 68 establishes the Majlis al-Shūrah council, leaving details of its formation, powers, and selection of members to laws to be determined later. As there is no legislature in Saudi Arabia, new laws (regulations) originate from the Council of Ministers or Majlis al-Shūrah. The king can also issue royal decrees immediately enforceable without consultation with or proposition by either the Council of Ministers or the Majlis al-Shūrah. In 2005 the kingdom held its first Municipal Councils elections.

The Development of the Saudi Judiciary

Prior to King ʿAbd al-ʿAzīz’s conquest of the Hijaz in 1925, the Saudi/Wahhābī heartland had a simple judicial system consisting of Sharīʿah courts in the major towns. Judges were appointed by the ruler from among the ranks of the ʿulamāʾ. The Hijaz, by contrast, had been part of the cosmopolitan and more complex administrative world of the Ottoman Empire. After conquest of the region, King ʿAbd al-ʿAzīz promulgated an elaborate judicial system that resembled the Ottoman Niẓāmī courts of the empire’s Tanzimat reform period but applied it only in the Hijaz. In 1957 this judicial system was established throughout the kingdom (with some modifications discussed below).

Since then the evolution of the Saudi judiciary has featured an ongoing tension between the government’s efforts to regularize the activity of judges and the judges’ insistence on their standing as mujtahids, or independent and qualified interpreters of Sharīʿah law. In 1928 the Judicial Board that King ʿAbd al-ʿAzīz created in the Hijaz issued a resolution proclaiming that it was mandatory for courts in the province to rely on the rulings and fatwās of Ḥanbalī law in all transactions. The Judicial Board established a hierarchy of scholarly texts that the courts were to use when deciding questions of Ḥanbalī law and also designated certain Ḥanbalī treatises as authoritative on questions that had previously been adjudicated according to the Ottoman Ḥanafī or Shāfiʿī law. Importantly, however, if the Ḥanbalī ruling in a case involving transactions or non-doctrinal disputes would result in hardship and transgression of general welfare, and the Ḥanbalī ruling in question was not based on explicit evidence from the Qurʾān or reliable ḥadīths, the Judicial Board allows judges to take a ruling from one of the other Islamic schools of law.

Despite the Wahhābī/Ḥanbalī commitments of the kingdom’s powerful Nejdi Ulama, however, they rejected this strict Ḥanbalī line. This aspect of the judicial system was not implemented in the rest of the kingdom. The Wahhābī/Ḥanbalī school emphasized the undesirability of taqlīd (strict adherence to a school of law) for judges, since it considered being a mujtahid to be a requirement for any judge. Moreover, the Nejdi Ulama did not approve of the appeals court tier built into the new judiciary. It was long-established precedent in Sharīʿah law, based originally on a ruling by the caliph ʿUmar ibn al-Khaṭṭāb, that one judge’s best judgment could not be overruled by that of another judge. Eventually, the king reconciled this tension by allowing cases to be heard on appeal only if the first judge had made a serious mistake in a matter of fact or the ruling contradicted the clear tenets of the Qurʾān, the Prophet’s sunnah, or consensus (ijmāʿ).

In 1970 the Saudi government established the Ministry of Justice in an effort to further systematize and centralize a more uniform judicial system. This also had the result of splitting the judiciary, whose judges are still required to hold degrees in Sharīʿah law, from the rest of the kingdom’s religious establishment, which is headed by Council of Senior Ulama (Hayʾat kibār al-ʿulamāʾ). The Ministry of Justice, however, serves more of an administrative role than a substantive one in guiding adjudication. Since the 2000s the Ministry has published collections of cases as potential precedents for judges to follow. But efforts to restrict judges to ruling only by the Ḥanbalī school of law have repeatedly run aground amid judges’ protest.

The ministry does have the capacity to constrain judges through administrative restrictions, justified under the ruler’s Sharīʿah right of judicial restriction (takhṣīṣ al-qaḍāʾ). These have been rare, however, with examples including a rule against judges notarizing home mortgages (since interest is prohibited) and a rule fixing compensatory payment for injuries (diyah) in cash values as opposed to the classical medium of camels.

The Contemporary Judiciary

Today the judicial power in Saudi Arabia is divided among multiple institutions: a) Sharīʿah courts; b) Dīwān al-Maẓālim (Board of Grievances); and c) a number of juridical committees.

Sharīʿah Courts: These come under the Ministry of Justice and comprise three primary divisions: first instance, appeal, and the Supreme Court. The Supreme Court ensures that the lower courts (first instance and appeal) have properly applied Sharīʿah principles, reviews the orders issued by the king to make sure they are in conformity with the Sharīʿah, provides legal opinions for the king, and reviews sentences involving death or amputation. The Sharīʿah Courts of First Instance are the trial courts, and their judgments can be appealed to the Courts of Appeal and ultimately to the Supreme Court. Most types of cases can be heard on appeal after a ruling by a Court of First Instance. These include, for criminal cases, crimes involving punishments exceeding forty lashes or ten years in prison; and, for civil cases, situations in which damages exceed a certain amount. Reversals upon appeal are rare, however, and tend to occur in ḥudūd punishments cases of execution or amputation. In such cases, the Court of Appeal might overturn a guilty verdict because it has identified some doubt (shubuhāt) overlooked by the judge in the first instance.

Courts of First Instance are divided into two tiers. Mustaʿjalah (summary) courts deal with non-capital or non-severe corporal crimes as well as civil suits with limited potential damages and Greater Sharīʿah courts in the major cities, which hear more serious cases. Civil cases are heard by one judge and criminal cases by three.

Although Saudi judges insist on their right to act as independent interpreters of the Sharīʿah, in Sharīʿah courts they are generally expected to rule according to Ḥanbalī law. The 1928 resolution identified as primary references two treatises by al-Bahūtī (d. 1641), the Sharḥ Muntahā al-Irādāt and the Kashf al-Qināʿ ʿan Matn al-Iqnāʿ. In case of a discrepancy between the two works, the former prevails; when neither of the two treatises provides the answer to any given problem, judges then revert to the explanatory commentaries produced on the mainstay Ḥanbalī works of the Zād al-mustaqniʿ and the Dalīl al-ṭālib of Mūsā al-Ḥajāwī and Marʿī b. Yūsuf respectively. If an answer still cannot be obtained, then other Ḥanbalī law books of minor importance may be consulted and decisions issued according to the prevailing opinion contained therein. The voluminous works of Ibn Qudāmah (d. 1220) have proven useful in finding legal solutions to modern legal realities.

Alongside these Ḥanbalī treatises, judges can, in theory, turn to derivative legal sources directly. These include Maṣlaḥah mursalah (unspecified expediencies), Istiḥsān (equity), Sadd al-ẓarāʾiʿ (blocking the means), and Istiṣḥāb (deduction by presumption of continuity). As noted already, however, when a Ḥanbalī rule was deduced from such derivative sources or any source of law other than Qurʾān and confirmed ḥadīth, and when application of that rule is likely to lead to hardship and transgression of general interest, judges can choose a rule drawn from one of the other Islamic schools of law.

Although the classical Islamic legal rules of evidence tend to be very formalistic privileging witness testimony over written records, Saudi Sharīʿah judges have maintained a flexible approach. Ibn Qayyim al-Jawazīyah (d. 1351), a disciple of the Wahhābī/Ḥanbalī paragon Ibn Taymīyah (d. 1328), penned a treatise entitled Ṭuruq al-ḥukmiyyah (Paths for Arriving at Rulings) that upholds the most pragmatic and equitable position toward evidence in the Sharīʿah tradition. The book is regularly relied upon by Saudi judges.

Although the plaintiff and defendant in the Sharīʿah courts can choose others to act as their agents (wakīl), lawyers are discouraged in Sharīʿah courts. Judges consider their presence unhelpful for the two parties coming to a negotiated settlement (ṣulḥ), always the favorite outcome of the judges.

Dīwān al-Maẓālim (Board of Grievances): This comes under direct authority of the king and is located in the capital city of Riyadh. At first its primary jurisdiction covered the following: administrative conflicts, claims from private parties for compensation from the administration, and requests for the execution of foreign judgments and foreign arbitration awards. The jurisdiction of the Board of Grievances was further extended by the decision of the Council of Ministers number 241 of H.26/10/1407 (1987), which transferred to the board the competence of the Department of the Settlement of Commercial Disputes. In case the same case is filed with the Board of Grievances and with any other apparently competent authority, and in case one of them did not desist or in case both of them did desist from looking into the case, the matter is referred to a committee set up to decide on this particular issue of competence.

Juridical Committees: These have been established alongside the Sharīʿah courts and Board of Grievances, and some of them are standalone committees established by the government. The committees are staffed by a mixture of members who are graduates of religious universities and secular ones, whereas the members of the Sharīʿah courts and the lawyers who plead before them must have a degree in Sharīʿah law. The juridical committees handle disputes that the government deems inappropriate for resolution by a Sharīʿah court or by the Board of Grievances.

These are often disputes involving a foreign party. For example, in the mid-1980s Saudi debtors who had taken loans from foreign banks appeared before the Sharīʿah courts arguing that, notwithstanding their signed agreement to pay interest, they could not be forced to honor those provisions because Islam does not permit interest. These debtors further asked that the Sharīʿah courts appoint experts to review their accounts with the banks and to recharacterize all prior payments of interest as payment of principal. The Sharīʿah courts were expected to be sympathetic to this claim. Fearing a precedent that could rock the financial system of the kingdom, however, the government established a special committee called the Committee for Settlement of Banking Disputes. It was given responsibility to mediate between banks and customers. Other ad hoc committees include the Commercial Papers Committee, the Agencies Conciliation Committee, and the Committee for Labor Disputes.

[See also IBN ʿABD AL-WAHHāB, MUḥAMMAD.]

Bibliography

  • Ballantyne, W. M. Commercial Law in the Arab Middle East: the Gulf States, London: Lloyds of London Press, 1986.
  • Ballantyne, W. M. Legal Development in Arabia. London: Graham and Trotman, 1980.
  • Coulson Noel J. Commercial Law in the Gulf States. London: Graham and Trotman, 1984.
  • Saled A. Nabil, and Ajaj Ahmad. Unlawful Gain and Legitimate Profit in Islamic Law. London: Graham and Trotman, 1992.
  • Vogel, Frank. Islamic Law and Legal System. Leiden, Netherlands: Brill, 2000.
  • Warde, Ibrahim. Islamic Finance in the Global Economy. Edinburgh: Edinburgh University Press, 2000.
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