The legal system of Saudi Arabia is based on Sharia, Islamic law derived from the Quran and the Sunnah (the traditions) of the Islamic prophet Muhammad. The sources of Sharia also include Islamic scholarly consensus developed after Muhammad's death. Its interpretation by judges in Saudi Arabia is influenced by the medieval texts of the literalist Hanbali school of Fiqh. Uniquely in the Muslim world, Sharia has been adopted by Saudi Arabia in an uncodified form. This, and the lack of judicial precedent, has resulted in considerable uncertainty in the scope and content of the country's laws. The government therefore announced its intention to codify Sharia in 2010, and, in 2018, a sourcebook of legal principles and precedents was published by the Saudi government. Sharia has also been supplemented by regulations issued by royal decree covering modern issues such as intellectual property and corporate law. Nevertheless, Sharia remains the primary source of law, especially in areas such as criminal, family, commercial and contract law, and the Qur'an and the Sunnah are declared to be the country's constitution. In the areas of land and energy law the extensive proprietorial rights of the Saudi state (in effect, the Saudi royal family) constitute a significant feature.
The current Saudi court system was created by King Abdul Aziz, who founded the Kingdom of Saudi Arabia in 1932, and was introduced to the country in stages between 1927 and 1960. It comprises general and summary Sharia courts, with some administrative tribunals to deal with disputes on specific modern regulations. Trials in Saudi Arabia are bench trials. Courts in Saudi Arabia observe few formalities and the country's first criminal procedure code, issued in 2001, has been largely ignored. King Abdullah, in 2007, introduced a number of significant judicial reforms, although they are yet to be fully implemented.
Criminal law punishments in Saudi Arabia include beheading, stoning, amputation and lashing. Serious criminal offences include not only internationally recognized crimes such as murder, rape, theft and robbery, but also apostasy, adultery, witchcraft and sorcery. In addition to the regular police force, Saudi Arabia has a secret police, the Mabahith, and "religious police", the Mutawa. The latter enforces Islamic social and moral norms, but their powers have greatly been restricted over the last few years. Western-based human rights organizations, such as Amnesty International and Human Rights Watch, have criticized the activities of both the Mabahith and the Mutawa, as well as a number of other aspects of human rights in Saudi Arabia. These include the number of executions, the range of offences which are subject to the death penalty, the lack of safeguards for the accused in the criminal justice system, the treatment of homosexuals, the use of torture, the lack of religious freedom, and the highly disadvantaged position of women. The Albert Shanker Institute and Freedom House have also reported that "Saudi Arabia's practices diverge from the concept of the rule of law."
History
Sharia (or Islamic law), the primary source of law in modern Saudi Arabia, was developed gradually by Muslim judges and scholars between the seventh and tenth centuries. From the time of the Abbasid Caliphate in the 8th century, the developing Sharia was accepted as the basis of law in the towns of the Muslim world, including the Arabian Peninsula, and upheld by local rulers, eclipsing urf (or pre-Islamic local customary law). In the rural areas, urf continued to be predominant for some time, and, for instance, was the main source of law among the bedouin of Nejd in central Arabia until the early 20th century.
By the 11th century, the Muslim world had developed four major Sunni schools of Islamic jurisprudence (or fiqh), each with its own interpretations of Sharia: Hanbali, Maliki, Shafi and Hanafi. In Arabia, the Hanbali school was preferred by the Wahhabi movement, founded in the 18th century. Wahhabism, a strict form of Sunni Islam, was supported by the Saudi royal family (the Al Saud) and is now dominant in Saudi Arabia. From the 18th century, the Hanbali school therefore predominated in Nejd and central Arabia, the heartland of Wahhabi Islam. In the more cosmopolitan Hejaz, in the west of the peninsula, both the Hanafi and Shafi schools were followed.
Similarly, different court systems existed. In Nejd, there was a simple system of single judges for each of the major towns. The judge was appointed by the local governor, with whom he worked closely to dispose of cases. In the Hejaz, there was a more sophisticated system, with courts comprising panels of judges. In 1925, Abdul Aziz Al Saud of Nejd conquered the Hejaz and united it with his existing territories to form the Kingdom of Saudi Arabia in 1932. In 1927, the king introduced a new court system to the Hejaz comprising general and summary courts and ordered that Hanbali fiqh should be used. However, Nejd's traditional system of judges was left in place in the face of conservative opposition from the Nejd religious establishment.
After becoming familiar with the Hejaz court system in the following decades, the religious establishment allowed its introduction to the rest of the country between 1957 and 1960. Additionally, from the 1930s, Abdul Aziz created government tribunals or "committees" to adjudicate in areas covered by royal decrees such as commercial or labor law. The system of Sharia courts and government tribunals created by Abdul Aziz largely remained in place until the 2007 judiciary reforms (see below). Until 1970, the judiciary was the responsibility of the Grand Mufti, the country's most senior religious authority. When the incumbent Grand Mufti died in 1969, however, the then king, Faisal decided not to appoint a successor and took the opportunity to transfer responsibility to the newly established Ministry of Justice.
The Shia community of the Eastern province have a separate legal tradition. Although they follow Sharia, they apply the Shia Jafari school of jurisprudence to it. In 1913, when Abdul Aziz conquered the area, he granted the Shias a separate judiciary for dealing with religious and family law cases: one judge in Qatif, and one in Al-Hasa. This remained the position, with the two judges ministering to a population of around two million, until 2005 when the number of judges was increased to seven. For all other areas of law, the Shia community are under the jurisdiction of the regular Sunni courts.
Sources of law
The primary source of law in Saudi Arabia is the Islamic Sharia. Sharia is derived from the Qur'an and the traditions of Muhammad contained in the Sunnah; ijma, or scholarly consensus on the meaning of the Qur'an and the Sunnah developed after Muhammad's death; and qiyas, or analogical reasoning applied to the principles of the Qur'an, Sunnah and ijma. Officially, Sharia, in Saudi Arabia, is generally applied in accordance with the Hanbali legal school of thought (or madhhab), which only allows qiyas when absolutely necessary. The Saudi royal family and state are proponents of the Wahhabi Islamic movement which generally follows the Hanbali school. However, opponents of Wahhabism have noted that Wahhabi beliefs, as practised in Saudi Arabia, diverge from the Hanbali school in certain respects and, even, that Wahhabism may constitute a separate school or madhhab.
Muslim countries that retain or adopt Sharia usually determine which parts of the Sharia are enforceable and codify (and thereby modernize) them. Unlike other Muslim countries, Saudi Arabia regards uncodified Sharia in its entirety as the law of the land and does not interfere with it. It is, therefore, unique not only when compared to Western systems, but also in comparison to other Muslim countries, and according to the Dutch legal scholar, Jan Michiel Otto, could be described as the closest system in the modern world to the form of Sharia adopted at the advent of Islam.
The lack of codification of Sharia leads to considerable variation in its interpretation and application. Furthermore, there is no system of judicial precedent, as Saudi judges are forbidden from engaging in taqlid (or the unquestioning adoption of the interpretation of others) and must, instead, use independent reasoning (ijtihad). Nevertheless, judges are expected to consult six medieval texts from the Hanbali school of jurisprudence before reaching a decision. The Hanbali school is noted for its literalist interpretation of the Qur'an and hadith. If the answer is not found in the six Hanbali texts, the judge may then consult the jurisprudence of the other three main Sunni schools or apply his independent judgment and legal reasoning through ijtihad.
Because the judge is empowered to disregard previous judgments (either his own or of other judges) and can apply his personal interpretation of Sharia to any particular case through ijtihad, divergent judgements arise even in apparently identical cases. There is a presumption against overturning a decision when it is based on ijtihad. This principle is crucial in two respects. Firstly, it concentrates the substance of the law in the hands of judges as, in consequence, there is a presumption that only a judge exercising ijtihad, rather than a king or a parliament, can determine God's law. Secondly, it renders a judge's decision practically immune to reversal on appeal. The role of ijtihad has led to calls for the Sharia to be codified to give clarity and remove uncertainty. As a result, in 2010, the Minister of Justice announced plans to implement a codification of Sharia law, although resistance from the religious establishment is reportedly delaying its implementation.
Royal decrees (nizam) are the other main source of law but are referred to as regulations rather than laws to indicate that they are subordinate to the Sharia. Royal decrees supplement Sharia in areas such as labor, commercial and corporate law. Additionally, other forms of regulations (lai'hah) include Royal Orders, Council of Ministers Resolutions, Ministerial Resolutions and, Ministerial Circulars, and are similarly subordinate to Sharia. Any Western commercial laws or institutions are adapted and interpreted from the standpoint of Shariah law.Coulson, Noel J. (Graham and Trotman, 1984), Commercial Law in the Gulf States: The Islamic Legal Tradition, 3
Additionally, traditional tribal law and custom remain significant. For example, judges will enforce tribal customs pertaining to marriage and divorce.
The courts and the judiciary
Court structure The Sharia court system constitutes the basic judiciary of Saudi Arabia and its judges and lawyers form part of the ulema, the country's religious leadership. There are also extra-Sharia government tribunals which handle disputes relating to specific royal decrees and since 2008, specialist courts, including the Board of Grievances and the Specialized Criminal Court. Final appeal from both Sharia courts and government tribunals is to the King and , all courts and tribunals followed Sharia rules of evidence and procedure.
The Sharia courts have general jurisdiction over most civil and criminal cases. At present, there are two types of courts of first instance: general courts and summary courts dealing with lesser cases. Cases are adjudicated by single judges, except criminal cases if the potential sentence is death, amputation or stoning when there is a panel of three judges. There are also two courts for the Shia minority in the Eastern Province dealing with family and religious matters. Appellate courts sit in Mecca and Riyadh and review decisions for compliance with Sharia. The Supreme Judicial Council of Saudi Arabia supervises the lower courts and provides legal opinions and advice to the King and reviews sentences of death, stoning, and amputation.