In 2007 and 2009
Saudi King Abdullah capped a decade of legal and judicial reforms in his
country by reorganizing the judiciary and ordering that Saudi Arabia follow the
step that virtually all other states in the region did long ago by codifying
its laws -- committing to paper a comprehensive compendium of the operative
laws in the kingdom. Since that date, however, his order has been neither
challenged nor implemented. Why is codification of law seen as such a dramatic
step in Saudi Arabia? And why does the king seem incapable of making it happen?
Saudi kings devoted considerable attention in the first decade of the 21st century to remaking the judicial order. Initial steps taken were new procedure laws with new decrees insisting (with uncertain effectiveness) that courts follow prescribed rules in their operation -- and making the courts, always ambivalent about the role of lawyers, friendlier to the legal profession. In the most recent moves, besides ordering codification, the king consolidated all sorts of quasi-judicial bodies that littered the legal framework of the kingdom, wrenched adjudication functions away from the Supreme Judicial Council (handing them to a newly created Supreme Court), and relieved the country's highest-ranking judge, a pillar of the old order, from his office at the head of the system. The king's steps were sufficiently dramatic -- and the identity of the Saudi state so deeply enmeshed in claims to be fully Islamic, especially in its legal structure -- that longtime Saudi legal scholar Frank E. Vogel, in "Saudi Arabia: Public, Civil, and Individual Shari`a in Law and Politics," termed them "not a shot but a barrage across the bow of his partners in rule, the conservative religious establishment" and "clearly seismic events within the world of Saudi shari`a politics."
Saudi Arabia is a difficult place to understand, and its legal system is especially unusual -- not so much because it is opaque but much more because it is sui generis. When the country has structures similar to those of neighboring countries, it uses a different word -- what "administrative courts" are called or even the word used for "law." And just as confusing is that on those occasions when the same word or term is used, the similarity in language masks deep differences in structure and meaning. (For instance, most Arab states have a body called a "Supreme Judicial Council" to oversee judicial affairs and administer the judicial sector -- and often to subordinate the judiciary to the executive branch. In Saudi Arabia, a body by the same name served often to resist executive pressure and not only to oversee judicial affairs but until quite recently served as a supreme appellate court.)
The sorts of political experiences other Arab countries passed through -- imperialism, ambitious state building, socialism, and liberalization -- did not affect Saudi Arabia so deeply. Most other Arab legal systems are roughly homologous, so that a Moroccan lawyer could find his or her way around a Syrian legal dispute with relatively little difficulty. With a few exceptions the legal orders of Arab states are essentially civil law systems that would be more familiar to a lawyer trained in current-day Paris or Rome than one trained in a medieval madrasa. In most Arab states, Islamic legal influence is strong in some areas (in marriage, divorce, and inheritance most especially), but judges rule largely on the basis of legislated texts and codes, and court systems are structured like (and courtrooms even have a similar physical appearance to) those on the European continent. Institutions associated more directly with Islamic law -- such as courts that operated primarily on the basis of shari`a or schools that taught Islamic jurisprudence -- were generally initially left alone by centralizing states that built their own courts, issued their own laws, and built their own schools alongside the older, more Islamically-inclined structures. Gradually the sphere of the older Islamic structures was restricted until there was little fuss when the state finally took them over, sometimes folding their work into the state courts, codifying the remaining areas of law so that judges ruled on legislated texts rather than their understanding of Islamic law, and regulating curricula.
In Saudi Arabia, by contrast, shari`a courts still have general jurisdiction. Judges rule on the basis of their understanding of the relevant rules in the Islamic legal tradition. While there are many tomes on Islamic jurisprudence, there is no place where rules are written in any authoritative or binding form. Instead the individual judge uses years of training to master the jurisprudence developed from the text of the Quran, and the practices of the prophet and the early community, to apply that understanding to the case at hand.
The king does make some rules, of course, to administer the affairs of the community -- as even very conservative Islamic legal authorities acknowledge is his duty. But the Saudis studiously avoid words used elsewhere in the Arab world for law, qanun, since it suggests that human words rather than divine ones lay at the basis of the legal order. Instead the word nizam (system) refers to the most wide ranging royal commands. There are also a range of lesser decrees and ordinances. None of these rules may contravene the shari`a and judges simply disregard them if they think that they do. Universities that teach Islamic law have often simply ignored the state-issued laws rather than include them in a religiously-dominated curriculum. Sometimes Islamic legal scholars refer to areas covered by such edicts as those that are beneath the dignity of the shari`a.
In large areas of law where the state wishes to have a bit more control than the decentralized and autonomous shari`a based system allows, Saudi kings have used their undisputed authority to structure the judiciary to form a number of bodies that oversee specific sorts of problems. The most significant is an administrative law structure given the rather non-legal name diwan al-mazalim (often translated as Board of Grievances). Other quasi-judicial tribunals have been formed over the years for labor or investment disputes.
Most modern states are, above all, law-making machines. That is how they mobilize and allocate resources; make and enforce decisions; and render behavior, transactions, and even speech obligatory, permissible, or forbidden. Making law is a critical attribute of sovereignty. And that is precisely the concern in Saudi Arabia, a polity that takes divine sovereignty quite seriously. Law is to be made in accordance with God's will.
So why is codification of laws -- merely writing down what the laws are -- seen as a repugnant steps by many (though not all) of the kingdom's most powerful religious scholars? The opposition shows some signs of waning, but it has still been sufficient to prevent any practical steps toward codification.
First, there is a basic problem with the term "codification" of the shari`a itself -- the term used (taqnin al-shari`a) might quite literally be translated as "rendering God's law into man-made legislation," an almost sacrilegious concept. Some codification advocates have therefore preferred the term tadwin, which has the same denotation without the etymological baggage.
However, far more than vocabulary is at issue. Saudi religious scholars note that previous generations of Muslim legal experts saw no need for codification and see no reason for the change. But even more, they look quite disapprovingly at what the codification has meant in neighboring states -- it has generally been European (often French) law that has been brought in by centralizing states interested in systematizing their legal systems. In some cases, European law was introduced directly and other times indirectly through its Egyptian offshoot (Egypt did not convert over to an adapted civil law system until the 19th century).
Advocates of codification protest that despite what transpired in other countries, in Saudi Arabia it need not imply Europeanization. Codes could be written in the basis of Islamic jurisprudence. There have been some attempts by Islamic legal scholars (and occasionally by governments in the Muslim world) to write down shari`a-based rules in the form of comprehensive law codes, though their impact in general has not been great.
The most influential religious scholars in Saudi Arabia would object even to such an attempt to codify Islamic legal principles. It is not so much writing them down that would bother them; it is obliging the individual judge to follow those texts. The binding nature of codes, not their written nature, provokes the strongest objections. The reasons are closely connected with their view of what a judge is and how the Islamic legal tradition sustains itself over the generations.
In the shari`a courts of Saudi Arabia, judges rule on the basis of their own training and knowledge of jurisprudence. Religious scholars feel they should not be bound by whatever rulers have decreed to be the authoritative version of that tradition. While judges might look to various sources for guidance, no one person has final authority. Each judge should have direct and unmediated access to the sources of law and the full range of jurisprudential debates rather than to have them redacted and imposed by a person or committee, no matter how powerful or learned.
Of course, judges are not set free to rule as they wish armed only with a copy of the Quran. They emerge after being trained in a jurisprudential tradition over a millennium old. A civil law lawyer masters codes and legislated texts. A common law lawyer studies court decisions in order to understand how various legal principles and texts are applied in practice. For a classical Islamic legal training, the key texts are, of course, the Quran and those that describe the practice of the prophet and the early community. Also important is the scholarly finding of law (the fatwa) as a means for guiding application of legal principles. No legislator's edicts can trump the will of the Almighty. No fallible court trapped in the circumstances of a particular case can bind its successors. It is jurisprudential scholarship, not legislative texts or judicial precedents, that transmits legal norms across the generations. This explains not only the reluctance of Saudi judges to follow codes but also the lackadaisical manner in which judgments are published -- in a system in which court precedent plays no formal role, there is less of an impetus to have the texts of judgments available to parties other than those directly involved.
Judges are educated in this body of Islamic legal scholarship -- though again, they are not told which rule they must apply in a particular case or how it is to be applied. Early in its history, the Islamic legal tradition developed into schools of law within which followers were trained. The Wahhabi tradition, it should be noted, for all its international reputation for rigidity, is actually less deferential to past authority than other approaches and more insistent that the individual judge be set free to rule in accordance with his own understanding of the appropriate application of legal norms.
Judges I have met elsewhere in the Arab world have a very strong sense that they represent impartial justice and, in a very real sense, the authority of the state. They often deeply resent having that authority bent to the will of the executive branch (though they recognize that often happens). In Saudi Arabia, judges see themselves as acting in accordance with the will of an even higher authority.
No Saudi king would ever question these ideas in theory -- but several have chafed at the results. In a sense, the argument is less about what Islamic law is than about who can speak in its name. In most other Arab states Islamic law, to the extent that it is operative, becomes so after being recognized and often codified by political authorities. There are a few areas of uncodified law in a few countries, but those islands have become quite rare. Yet they are the norm in Saudi Arabia.
Saudi kings would not make so ambitious a claim as to be able to speak for Islamic law, but they have striven intermittently to have scholars sit down and agree on what it is -- and to record their agreement in written form of a code to guide the work of courts. But they have still failed.
Two decades ago, the Hay'at Kubar al-`Ulama (Body of Senior Religious Scholars) finally reported its response to a longstanding request from the king for an opinion on codification. By a narrow majority they rejected the idea. The arguments' reasons in responses of hay'at kubar al `ulama are reported very carefully in Muhammad Bin `Abd Allah Bin Muhammad al-Marzuqi, Sultat Wali al-Amr fi Taqayyud Sultat al-Qadi. But rather than take no for a permanent answer, King Abdullah pressed again and finally ordered codification to begin in 2007.
In Saudi Arabia, rulers have been willing to cede the main work of drafting to religious scholars; it is not necessarily ambitious centralization that they are after. Instead, three sets of concern seem to have motivated the push for codification. First, litigants are often pushed outside of the courts to resolve their disputes, where they have a greater degree of knowledge about the governing law. Alternatives -- such as arbitration or resorting to foreign courts -- vary according to the nature of the dispute.
Second, the Saudi state has been driven to create a series of ad hoc structures to govern areas where it has a more definite set of rules it wants to see implemented. But those quasi-judicial bodies do not have the full prestige, status, and autonomy of a court. They are bodies often staffed by people with administrative rather than judicial backgrounds. In some areas it is even possible that those involved in adjudication could be officials of the body that is involved in a dispute.
Finally, the Saudi state has had to live with uncertainty, as have potential litigants. It is not clear which of its non-shari`a based laws will be regarded as legitimate and enforced by which judges.
These concerns have grown in recent years as Saudi Arabia has become far more connected to international commerce and finance -- and its ambitions in this regard seem currently unbounded. While there is a lively Islamic financial sector, for instance, much banking must take place outside the framework of the regular court system and has to make do with international mechanisms as well as a dispute resolution body attached to the Saudi Arabian Monetary Authority. To engage in international trade and financial transactions in a country where it is not clear what contracts and rules the courts will enforce is less than ideal.
Therein lies King Abdullah's decisiveness. His order to begin preparing codes was still respectful of the judiciary -- laws would be drawn from Islamic jurisprudence and Islamic legal scholars would likely oversee the process. Many scholars are convinced that the king is right, noting that most judges are probably not sufficiently knowledgeable to develop interpretations of Islamic law entirely on their own. Codification might thus be a way of enforcing shari`a-based rules rather than avoiding them. It might even bring back under their jurisdiction matters that had been transferred to quasi-judicial bodies.
But nothing definitive has happened. In a recent visit to Riyadh I asked a top legal official very supportive of codification whether a committee has been formed or any work has been done. He said he knew of nothing (and likely would be in a position to know). In a recent public event, an official from the Ministry of Justice was pressed about a personal status code developed jointly by Gulf Cooperation Council states (so their laws would be harmonious in that area). He said his ministry would do whatever it was told but that the matter was in the hands of religious scholars who are supposed to be studying it. But if they are doing so, it is a silent process.
The sweeping processes of political change unleashed elsewhere in the region may actually have taken the wind out of the sails of current Saudi Arabian judicial reform efforts. Like many promises made in the past -- for a consultative assembly, for instance -- codification will probably happen, but it may take decades more.
Nathan J. Brown is a professor of political science and international affairs at George Washington University and nonresident senior associate at the Carnegie Endowment for International Peace.