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Part 1: Saudi Law

I. Sharia and Statutory Law

Article 1 of the kingdom’s Basic Law of Governance (1992) elevates the Quran and the Prophet’s traditions (Sunna) to the status of an immutable constitution: Saudi Arabia’s “constitution is Almighty God’s Book, The Holy Quran, and the Sunna (Traditions) of the Prophet (PBUH).”⁶ Saudi Arabia applies the Sharia (Islamic law) as the law of the land. Sharia relies on an interpretation of the Quran and verifiable traditions and sayings of the Prophet Muhammad (d.632) to derive, directly or indirectly, normative rules governing the behavior of Muslims and, in certain instances, of non-Muslims.

Sharia is not readily available and accessible to laypeople, nor is it a codified set of rules. To understand Sharia precepts, their origins and applications, jurists and legal scholars study the Quran and the Sunna and the works of previous great scholars, often for years. Sharia scholars adopt certain methodologies (usul al-fiqh), such as linguistics and verification of true Prophetic traditions,⁷ and then study jurisprudence (fiqh), usually following a particular legal school. Sunnis generally follow one of four legal schools, named after their founding scholars, Shafi’i, Hanafi, Maliki, or Hanbali. Most Shia follow the Ja’fari or Zaidi schools of legal thought, but there are others.

Saudi Arabia’s founding ruler gave refuge and then subscribed to the reformist ideas of Muhammad Abd al-Wahhab, an 18^th-century itinerant scholar and preacher. Under Abd al-Wahhab’s influence, much of today’s Saudi Arabia came under the sway of a strict literal interpretation of the Quran and the Sunna. Although Abd al-Wahhab based his interpretations on his own understanding of original texts, his methodological approach is close to that of the Hanbali School of Jurisprudence. Hanbalis shun using derivative sources of law or scholarly consensus (ijma’) to adjudicate any given issue. Other schools of thought give ijma’ the force of legally binding opinion, which Hanbalis sometimes regard as an improper innovation attributing legislative powers to judges. The Hanbali School also does not encourage the use of precedents. Instead, Hanbali jurists prefer to employ their own original legal reasoning (ijtihad) to the Quran and Sunna to derive the appropriate ruling for the case under consideration.⁸ Saudi judges and official arbiters of public morality generally follow the Hanbali school of thought, and are frequently called “Wahhabi,” a term denoting their scholarly indebtedness to Abd al-Wahhab.

The division of respective areas of influence between the absolute rulers of the House of Sa’ud and the Wahhabi religious establishment has endured through subsequent centuries and periods of temporary demise of the Saudi state.⁹ The religious establishment in Saudi Arabia has broad influence over everyday life. Its scholars and officials write and vet textbooks used in schools. Officials in the Commission to Promote Virtue and Prevent Vice (CPVPV) lecture at social gatherings, teach the Quran in prisons and social institutions, and keep a watchful eye over the moral behavior of the general public.¹⁰ Religious officials preach in local mosques where prayer attendance is mandatory. The judiciary, too, is almost the exclusive province of the religious establishment.

Although by no means a monolithic bloc, conservative views dominate the religious establishment, advocating against greater personal freedoms, such as in women’s choice of dress, and against modernizing steps, such as codifying Sharia or facilitating women’s access to the workplace. In March 2006 Muhsin al-‘Awaji, a prominent voice among conservatives, published on his website a scathing critique of the liberalizing efforts of Minister of Labor Ghazi al-Qusaibi. In the same month, conservatives, some associated with the CPVPV, disrupted the Riyadh International Book Fair and harassed authors, particularly female authors. In November 2006 mostly young conservatives stormed the production of a theater play by a group at al-Yamama College. In March 2007 a number of religious men signed a petition against the invitation of women to the literary club of al-Ta’if.

The Saudi government does not publish an official interpretation of Sharia. In the area of criminal law, the government has not published an interpretative text carrying the force of law of the precise definitions of acts that constitute offenses, such as “disobeying the ruler.” Unlike Qatar, which also follows the Hanbali School, Saudi Arabia has no written penal code.

The task of interpreting and applying Sharia largely falls to the judiciary, composed of courts and judges, a Supreme Judicial Council, a Council of Senior Scholars, a mufti, and a Ministry of Justice. Article 48 of the Basic Law specifies, “The Courts shall apply rules of the Islamic Sharia in cases that are brought before them, according to the Holy Quran and the Sunna.”¹¹ Sharia, however, is silent on many areas in which modern life requires the application of precise legal norms. To fill this void, Saudi Arabia’s prime minister (a post held currently by the king), may issue positive, or statutory, laws—called regulations to differentiate them from God-given laws of Sharia—as long as they do not conflict with Sharia precepts. Article 48 of the Basic Law, itself one such statutory law, also obliges the courts to apply Sharia rules “according to laws which are decreed by the ruler in agreement with the Holy Quran and the Sunna.” Saudi Arabia has published hundreds of such statutory laws to regulate areas where Sharia precedents or interpretations have little bearing, such as traffic and banking laws.