Islamic law and legal system: studies of Saudi Arabia

425 Pages·2000·21.7 MB·English

by  Frank E. Vogel

ISLAMIC LAW AND LEGAL SYSTEM
STUDIES
IN ISLAMIC LAW
AND SOCIETY
EDITED BY
RUUD PETERS AND BERNARD WEISS
VOLUME 8
ISLAMIC LAW
AND
LEGAL SYSTEM
Studies of Saudi Arabia
BY
FRANK E. VOGEL

BRILL
LEIDEN • BOSTON • KOLN
2000
This book is printed on acid-free paper.
Library of Congress Cataloging-in-Publication Data
Vogel, Frank E.
Islamic law and legal system : studies of Saudi Arabia / by Frank E. Vogel.
p. cm. — (Studies in Islamic law and society, ISSN 1384—1130; v. 8)
Includes bibliographical references and index.
ISBN 9004110623 (cloth : alk. paper)
1. Islamic law. 2. Islamic Law—Saudi Arabia. I. Title. II. Series.
KBP469.V64 2000
340.5'9'09538—dc21 00-021522
CIP
Die Deutsche Bibliothek - CIP-Einheitsaufhahme
Vogel, Frank E. :
Islamic law and legal system : studies of Saudi Arabia / by
Frank E. Vogel. - Leiden ; Boston ; Koln : Brill, 2000
(Studies in Islamic law and society ; Vol. 8)
ISBN 90-04-11062-3
Chapter One of this book includes the substance of "The Complementarity of Ifia.' and
Qada': Three Saudi Fatwas on Divorce." in Islamic Interpretation: Muftis and their Fatwas. Ed.
M. Khalid Masud, Brinkley Messick, and David Powers (Cambridge: Harvard University
Press, 1996), 262-269. Reprinted by Permission of Harvard University Press.
ISSN 1384-1130
ISBN 90 04 110623
© Copyright 2000 by Koninklyke Brill NV, Leiden, The Netherlands
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PRINTED IN THE NETHERLANDS
CONTENTS
Acknowledgments vii
Map x
Introduction xi
PART ONE
THE LAW OF THE RELIGIOUS-LEGAL SCHOLARS
Chapter One Ijtihad as Law 3
Chapter Two Ijtihad as Law: Doctrines for Theory
and Practice 33
Chapter Three Scope for Qadf Ijtihad: The Saudi System
of Appeals 83
Chapter Four Ijtihad in the Saudi Courts 118
PART TWO
THE RELIGIOUS-LEGAL SCHOLARS
AND THE KING'S LAW
Chapter Five King's Law as Complement and
Com petitor to Fiqh 169
Chapter Six King and Scholars in Cooperation:
The Case of Capital Crimes 222
Chapter Seven King and Scholars in Competition:
Adjudication 279
Chapter Eight King and Scholars in Competition:
Legislation 309
Conclusion 363
Appendix A: Table of Major Interviews and Court Observations 367
Appendix B: Table of Hudud Penalty Occurrences 370
Glossary of Arabic Terms 371
Bibliography 375
Index 393
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ACKNOWLEDGMENTS
This book draws on nearly five years of research in the Kingdom
of Saudi Arabia and on nearly ten years of preparation in various
stages. During these many years I have incurred debts to literally
hundreds of people. I can name only a few of them here, but wish
to thank them all.
Proceeding chronologically, my research began with support from
two fellowships, the first from the American Research Center in
Egypt, giving me a preparatory year in Cairo researching the appli-
cation of Islamic law in modern states and gaining spoken Arabic;
and the second a Fulbright-Hays grant for a year of research in
Riyadh on the Saudi Islamic court system. To secure the Fulbright,
I needed a Saudi visa, kindly arranged by H.E. Shaykh Ahmed Zaki
Yamani, alumnus of Harvard Law School and then Minister of Petro-
leum and Mineral Resources. I also needed an official invitation to
do research, which came in the form of a letter from then Minis-
ter of Justice Shaykh Ibrahim bin Muhammad Al al-Shaykh, this
too arranged by Shaykh Yamani. Shaykh Ibrahim's letter granted
me the opportunity, unprecedented for a Westerner, to attend ses-
sions of Saudi sharf'a courts. For many months I sat in the courts
of two most impressive judges, Shaykh Sulayman al-Muhanna and
Shaykh Ahmad al-'Um arl. To get answers to doctrinal questions aris-
ing from my court observations, I approached the then rector of the
Imam Muhammad bin Sa'ud Islamic University in Riyadh, H.E. Dr.
Abdullah al-Turkl, who arranged for informal tutorials with excep-
tional scholars of the University, particularly the late Dr. cAbd al-
Al cAtwa and Dr. Zayn al-'Abidln al-Rikabl. Both scholars showed
great patience and wisdom in guiding the foreign novice into the
profundities of Islamic jurisprudence. To learn more about the struc-
ture of the court system I visited the Ministry of Justice, and was
graciously received by three deputy ministers, Dr. Bakr Abu Zayd,
Dr. Sacud Al Durayb, and Dr. Hamad al-Faryan. To ask about the
larger legal system I sought out other ministers and high officials of
the government, above all H.E. Dr. Motleb al-Nafissah, holder of
the S.J.D. degree from Harvard Law School and then president
of the Bureau of Experts of the Council of Ministers. I also gained
viii ACKNOWLEDGMENTS
much from research at the excellent library of the Institute of Pub-
lic Administration, given access by the then Director Dr. Mohammed
al-Tawail.
After my Fulbright fellowship ended, I extended my stay in the
kingdom two further years on a fellowship from my first and con-
stant benefactor Shaykh Yamani. Thereafter I arranged to stay in
Riyadh another year and a half, working part-time as an attorney
while researching the commercial law of the kingdom. During these
years I attended further courts. Most importandy, I was a frequent
visitor to the highest judicial body of the kingdom, the Supreme
Judicial Council. There I learned much from two extraordinary
figures of piety, authority, and learning Shaykh Salih al-Lahaydan
and the late Shaykh Salih al-Ghusun. I also spent weeks at the Com-
mittees for Settlement of Commercial Disputes in Riyadh and in
Jedda, receiving much help from judges Shaykh Sulayman al-Musa
and Hon. Muhammad Qarub. I several times interviewed the then
President of the Board of Grievances H.E. Dr. Muhammad Ibn
Jubayr, a scholar who has held many high positions.
After completing my research in Saudi Arabia in 1987, I returned
to Harvard University, invited to teach Islamic law at Harvard Law
School by Dean James Vorenberg at the instance of Prof. Arthur
von Mehren. Benefiting from summer support and research leaves
from Harvard Law School, and from the constant encouragement
of the new Dean Robert Clark, I completed in 1993 a doctoral dis-
sertation based on my research. My dissertation advisers, Wolfhart
Heinrichs, Muhsin Mahdi, and Arthur von Mehren, and other faculty,

particularly William A. Graham, contributed many comments improv-
ing the work. I also benefited from suggestions of Law School col-
leagues who heard parts of the research presented at faculty workshops.
After submission as a dissertation the manuscript lay fallow for
several years. At that time I visited Saudi Arabia only sporadically
and for short periods. During one of these trips I interviewed judges
of the Board of Grievances to learn more about the Board's newly
acquired jurisdiction over commercial cases, and requested copies of
decisions of the Board to study, which were generously supplied.
Also in these years I kept in touch with many Saudi friends and
former students, of the latter particularly Saud Al-Ammari of the
Ministry of Petroleum, Abdulrahman Al-Hussayen of the Royal Cab-
inet, and Ayoub Al-Jarbou of the Institute of Public Administration.
Finally, thanks to two terms of research leave from the Law School,
ACKNOWLEDGMENTS IX
funded through the Custodian of the Two Holy Mosques Chair in
Islamic Legal Studies endowed in 1993 by the Kingdom of Saudi
Arabia, I found time to revise the dissertation for publication. Par-
ticularly valuable suggestions for the revision came from Prof. Charles
Donahue of Harvard Law School. I also benefited from comments
by Profs. Dale Eickelman of Dartmouth College, Baber Johansen of
the Ecole des Hautes Etudes en Sciences Sociales, Ruud Peters of
the University of Amsterdam, and Bernard Weiss of the University
of Utah. (It goes without saying that none of these kind readers
bears any responsibility for my errors.) A number of research assis-
tants helped me at various stages of the effort, notably Edward Copps,
Kristin Stilt, Will Vogel, and Basim Salih Zaki. Hundreds of Har-
vard Law School students listened while I worked out the ideas of
the book, and debated them with me in class and outside it. Peri
Bearman, Matthew Seccombe, and Margaret Sevcenko performed
superb edits at various stages. Trudy Kamperveen of Brill has been
patient and diligent in seeing the book through publication.
Finally, I have the privilege of thanking those who have made by
far the greatest and most selfless contribution to the book, my fam-
ily Melanie, Will, and Lara, who have been with me through all the
years in Egypt and Saudi Arabia as well as Cambridge. Their con-
stant joyfulness (despite the brooding presence of the ever-unfinished
book) alone made my efforts possible. With utmost love and grati-
tude I dedicate the book to them.