When a woman who had been raped was sentenced to imprisonment and strokes of the lash in Saudi Arabia in November, the Saudi leadership found itself confronted with a wave of criticism. But how realistic are demands for reform? The Islam scholar Guido Steinberg examines the Saudi legal system
In mid-November 2007, a court in the Saudi Arabian city of Qatif doubled the punishment imposed on a woman who had illegally been alone in a car with a man who was unrelated to her. Her sentence was raised from ninety to 200 strokes of the lash and she was given an additional six months in prison. Her lawyer had already appealed against the original sentence.
His reason was that in the incident, which took place in 2006, the woman (now twenty) and her companion had been the victims of a multiple rape by seven men who had already been sentenced to terms of imprisonment of between five and seven years.
To a certain extent, the "girl of Qatif", as she is now known throughout Saudi Arabia, was lucky. Several Saudi Arabian legal scholars are of the opinion that she should have been sentenced to death for fornication (zina). The case was attracted public interest throughout the world, and lent force to calls for a reform of the Saudi Arabian justice system.
Priority for religious law
Indeed the case follows the standard legal opinions in Saudi Arabia. Women may not be together with men who are not related to them. And adultery is punished by the death penalty (at least for the woman involved).
Religious law as defined by religious scholars (ulama) has general validity in Saudi Arabia. The scholar-judges in the religious courts, known mostly in the West as Sharia courts, claim general jurisdiction. Although in fact an area where secular law applies has emerged, that makes no difference to the principle that religious law has priority.
This distinguishes the Saudi Arabian legal and justice systems fundamentally from those of other Arab countries, where the constitution usually includes a clause under which Sharia is defined as one or even the source of legal opinion, but where this verbal concession has little influence on a largely secular legal system.
Alliance of rulers and scholars
The strong position of religious scholars in Saudi Arabian justice goes back to the alliance between the ruling family and the scholars. In 1744/5, the religious reformer Muhammad Ibn Abdalwahhab (1703 – 1792) forged an alliance with the then ruler Muhammad Ibn Saud (died 1765), and that alliance was the basis of the Saudi Arabian state.
The Wahhabiya, as the Abdalwahhab's reform movement is usually known, is a radical purist movement which only recognises as Muslim those who follow its rules of behaviour in detail and accept without question its theological views. They believe that the Koran and the Sunna offer a detailed, accurate picture of an idealised early history of the "pious ancestors" (as-salaf as-salih), the first Muslims in Mecca and Medina; and they try unquestioningly to put God's word literally into action.
This includes, according to Wahhabi principles, the five-times-daily prayer in the mosque, the ban on music, tobacco and silk clothing, as well as the exclusion of women as far as possible from public life. It was part of the agreement between the founders of the Saudi Arabian state that the scholars would have control, not only over the narrow religious and religio-political spheres, but also over education and justice, and that they would oversee public morality.
Until well into the twentieth century, the scholars largely succeeded in defending their privileges against attempts by the Saudi state to extend the areas under its control.
Under these conditions, the traditional Saudi Arabian justice system was largely decentralised. A judge educated in religious law would decide all the cases brought in a particular place. In practical terms the judge was under the control of the leading Wahhabi scholars in Riyadh.
Non-religious legal institutions
Only in the course of the increasing centralisation and modernisation of the state in the twentieth century was a strong justice system with a clear hierarchy created. Bench courts, appeal structures and majority verdicts were introduced. Scholars were tied into an increasingly bureaucratic justice system, which was controlled centrally by their leading representatives in Riyadh.
This strong centralisation reflected the interests of the Saudi rulers whose influence on the Saudi Arabian justice system has traditionally been strong.
In addition, in the course of the twentieth century, the Saudi ruling family established a parallel secular justice sector, which for the first time was not controlled by the scholars. If the Saudi state wanted to guarantee the functioning of trade in the province of Hijaz, which includes the cities of Mecca, Medina and especially Jeddah and which it conquered in 1925, it had to take over the accepted procedures. Already in 1926, a council of trade was founded in Jeddah – a tribunal with legal authority which had existed in the Ottoman period.
Five years later, there followed a trade law and in the following decades the Saudi rulers introduced a large number of non-religious legal institutions. This was necessary in the first place because the legal system was extended by the promulgation of regulations. Although these regulations were called decrees, not laws, since according to the Wahhabi view, only God can give laws, in practical terms, they were a compromise between Wahhabi ideology and the need to develop new laws.
At least in theory, these regulations or decrees were not to be contrary to Sharia.
Strict pursuance of legal principles
In the field of religious law in Saudi Arabia, it is still the Hanbali school of jurisprudence which dominates, as it did 250 years ago. It is the smallest of the four Sunni schools of canon law and has its traditional strongholds in Central Arabia, Damascus, Baghdad and Nablus. However, it was always a major aim of the Wahhabis to avoid the independent determination of the law by the scholars (ijtihad), in favour of the strict pursuance of the legal principles of a particular school of law (taqlid).
Instead of making use the widely-adopted Hanbali legal compendia, the judges were to base their rulings ideally on the Koran and the Sunna, which make up the totality of the traditions (hadith) about the statements and acts of the Prophet Mohammed. In this, Abdalwahhad and his followers were conforming to the views of the founder of the Hanbaliya, Ahmad b. Hanbal (780/1 – 855), who himself was more a scholar of the Hadith than of the law, and who never intended to found a legal school.
In reality however, the judges in Saudi Arabia have always been and continue to be guided almost entirely by the opinions of the major Hanbali legal compendia.
In practice, it was only the leading scholars of the kingdom who had the privilege of asserting an independent process of determining law. Based in Riyadh, they tried to assert centralised control over the Saudi Arabian legal process in a way which was supportive of the interests of the state.
Codification of the law
The Saudi state nevertheless made efforts to extent its control further by trying to codify Hanbali law. A proposal to this effect by Ibn Saud (1901 – 1953) failed as a result of the resistance of the Wahhabi scholars. In many other areas, the scholars were forced to bow to the will of the Saudi rulers, and they exhibited in the course of the twentieth century considerable pragmatism.
A codification however would have restricted the principle of the right to free decision on the basis of the Koran and the Sunna. The scholars made it clear that they considered this to be a fundamental principle of Wahhabi reform, and they were thus able to assert their point of view successfully.
Legal opinion in Saudi Arabia continues to be consistently based on religious law interpreted according to Hanbali principles – and in matters of public morality, this takes a particularly strict view. Had "the girl of Qatif" been convicted of illegal sexual intercourse (zina), she would have even run the risk of the death sentence. Fornication (among women) is a crime which is mentioned in the Koran (hadd, plu. hudud), and which can be punished by death. But the court dismissed the charge of fornication.
Reform of justice and law
The calls for reforms in the justice and legal systems in Saudi Arabia may seem understandable against such a background. But such calls are unrealistic, since justice and law in today's Saudi Arabia are only reformable to a very limited degree. In October 2007, the government indeed announced wide ranging reforms, which however will above all intensify state control, and ensure legal security in the business sector.
The reforms will affect the secular legal area and the organisation of religious justice. The content of the religious legal area will not be touched. A reform of justice and law in Saudi Arabia which would make cases such as that of "the girl of Qatif" impossible would require a massive restriction in the power of the religious scholars. That would only be possible if the justice system were to be largely secularised and the areas in which Islamic law were applied were reduced to a minimum.
But on account of the alliance between the rulers and the scholars in Saudi Arabia, this is impossible. As long as the legitimacy of the Saudi Arabian state is based on the alliance between the rulers and the scholars, the role of religious law will continue to be a major one.
© Qantara.de 2007
Translated from the German by Michael Lawton
Guido Steinberg studied history, Islamic studies and politics at the Universities of Cologne, Bonn, Damascus and at the Free University of Berlin. Between 2002 and 2005 he worked in the German Chancellery, and is now with the German Institute for International and Security Affairs in Berlin.