Saudi Arabia is overwhelmingly Islamic and has always been ruled under the Shari‘a, or Islamic law. The sheer existence of an additional legal system in Saudi Arabia, besides the Islamic Shari‘a, is regarded as an offense against the Islamic character or modernity of the country and its judicial system. Islamic law is supreme in Saudi Arabia, and the idea of the divine right of kings, used to justify absolute monarchies in Christian Europe, would be considered heresy. As divine law, it is immutable and unchangeable. As constitutional law it cannot be amended. All litigation in the Kingdom must be conducted in accordance with the Shari‘a.
The Saudi Legal System
The official legal system in Saudi Arabia is the Shari‘a, or Islamic law. In 1926, King ‘Abd al-‘Aziz ibn Saud in the process of unifying the country issued an order to unify the judicial system as well, basing it on the Hanbali School of law. He also prohibited the application of tribal customary law. Shari‘a law was now applicable among the whole population, nomad as well as urban, and its most important message was to command virtue and prevent vice, or in other words, to protect the prophetic tradition and to avoid any innovations.
The Shari‘a code of behavior is much broader than simply Western legal codes of right and wrong or cultural norms of good and bad. In general, there are five categories of describing human behavior, not just the two of good and bad. On the positive side are two categories; wajib, acts that are obligatory, and mandub, acts that are recommended and bring reward from God but are not mandatory. On the negative are: haram, acts that are prohibited, and makruh, acts that are reprehensible but not prohibited.
It is the middle category, mubah, however, that has provided the latitude for the Saudi legal system to address legal issues that have arisen as a result of rapid modernization. Mubah refers to those acts that are not specifically mentioned in the sources of the law and on which it is indifferent. They cover areas of modern financial, commercial and labor issues that in the West are subject to statuary laws such as commercial and labor contracts. In theory they are not legislated but promulgated in decrees, which are not part of the Shari‘a itself but must be consistent with it. In addition, special administrative tribunals have been created to adjudicate labor and commercial disputes.
The official view of the country and its judicial institutions is one of a country that strictly follows the guidelines of Islamic Law, Shari‘a. The necessity of supplementary regulations, which provide answer to legal questions not covered by the usul al-fiqh (the origins or fundamentals of the law), is unquestioned considering the country’s position in the global economy and diverse population. Thus, it is argued that on an informal level a multitude of legal forms and expressions exists which are recognizable through distinct types of judicial organization: a religious based, a state law based on Western legal principles, and customary tribal law. They are sometimes confrontational, and at other times complementary to each other, but can also overlap and merge in specific areas. Those three legal systems are Shari‘a, state jurisdiction in areas not covered by Shari‘a (marsum, nizam), and the customary law of tribal groups (‘urf).
In theory, all cases should have been solved according to Shari‘a law; however, it appears that, at times, Shari‘a is supplemented with legal measures from other sources, here economic regulations and customary procedures related to the tribes. Non-religious regulations enacted by the government, however, have tended to play a more important role in the wake of the country’s modernization. According to the basic law of governance, Royal decrees are issued to supplement the legislation in those matters where Shari‘a is insufficient, particularly in the fields of finance, economy, and administration. With modern legal reforms, marsum and nizam became the common names for most laws and regulations, provided that they complied with Shari‘a norms.
Customary Law of the Tribes
In Saudi Arabia no official laws or regulations were issued that refer exclusively to the Bedouin tribes. In civil and criminal cases that are dealt with in Shari‘a courts, the principles of Islamic law are applied, usually in accordance with the norms of the Hanbali school. However, in rural areas, tribal law still holds a strong position among the settled, semi-settled, and nomadic populations.
As in other countries, official laws in Saudi Arabia are decreed from the top (i.e. from the King and his legislation). However, other regulations developed from the bottom (i.e. from customs, traditions, and practices of the local community). Whereas law that is issued from above needs the support of a powerful centralized institution, law that arises from customs needs broad public acceptance. ‘Urf commands this kind of general support and respect.
Customary law earns recognition from individuals who see the advantages of behaving according to the expectations of other members of the group to which they belong. Therefore, it does not need a powerful force to maintain law and order, because it is based on mutual understanding and acceptance.
Interchange is the fundamental principle upon which the recognition and enforcement of customary law is based. To profit from its benefits, one has to follow certain rules. Voluntary acceptance and participation in the enforcement becomes effective only when the individual sees the benefits. For example, the protection of the individual and his kinship group as well as collective property serves as an incentive for individuals to adhere to customary law. Punishment and retaliation constitute the necessary frame, which is further shaped by deterrence and reconciliation.
Law and legal situations are often connected with questions of political hegemony, where governments might form a relationship with other legal systems. In the case of Islamic states, this relationship can be based on the acceptance of local customary practices, their incorporation into the existing legal system, or the denial and ignoring of customary law. The often-cited complaint against customary law — that it is a byproduct of colonial rule — does not count in Saudi Arabia because most of the country never experienced direct colonial rule. The rulers of Saudi Arabia did not use customary law to combat indigenous religious law; on the contrary, they used religious justifications to combat customary law. Unlike other Middle Eastern countries with smaller tribal populations, Saudi Arabia sought to combat customary law, rather than integrate selected positive elements. Furthermore, traditional elites were bound not by allowing them to practice their law, but by a meticulous system of patronage and marital relations between the ruling class and its subjects.
The customary law of the Bedouins and other tribal groups is called ‘urf. The Arabic word translates “what is commonly known and accepted” and describes the judicial process based on legal narratives and analogies among tribal groups. Tribal groups, formally nomadic Bedouins, maintain adherence to this code of rules dating back to pre-Islamic times. It should also be noted that the terms Bedouin and tribal nowadays no longer refers to a certain lifestyle but to the acceptance of a special code of social values. Islamic law to a degree is based on customary norms as they were practiced in Arabia during the pre-Islamic time. The Prophet Muhammad, and later other legal scholars, legitimized the usage of those customs that did not contradict Shari‘a and incorporated them in the large body of Islamic law.
Among important aspects of tribal law that are inconsistent with Shari‘a are property law (tribal territories, or dirah), personal law (collective responsibility, marriage regulations), inheritance (women’s share), criminal law (murder, honor crimes), and conducting raids. While ‘urf stands for the nomadic, orally transmitted, and secular world of pastoral Bedouin tribes, Shari‘a is the agent for settled communities and states with their agricultural bases economy and divine, written codex.
Tribe and state, just like nomads and settlers, live in symbiotic dependency. If the state is powerful it can extend central authority into tribal territory and enforce Shari‘a. However, if the state is weak, tribal customs become widely accepted even among settled communities and their mostly tribal members. Another, more subjective aspect depicts this dichotomy. While adherence to Islamic law is a question of faith and believing in the revelation of the Prophet Muhammad, the adherence to customary law is a matter of following age-old customs and values.
In many legal cases the codified Islamic law is preferred over the orally transmitted customary law, because no relevant rules exist in ‘urf. The tribal law transmitted over generations however is able to deal with civil as well as with criminal cases (i.e. those cases related to all members of the tribe). Often, however, judges were confronted with the issue of how to deal with a legal system that seemed incompatible with Islamic law and that could not be abolished for practical reasons. Tribal judges on the other hand have the ability to establish precedent rulings, thus merging the legislation with the judiciary. Therefore, ‘urf and Shari‘a on the local level are considered part of a common frame with the ultimate goal not to rule by the book but with the intent to settle disputes based on reconciliation between the parties.
As a core principle, the government and religious elite in Saudi Arabia tried to dissolve tribal structures. But neither Islamic law nor state law did abolish the tribal system and law completely, although certain customs were successfully banned, such as infanticide, unlimited polygamy, and the worshipping of idols. In case of revenge killing, it only succeeded partially. However, limiting freedom of movement and action lead the tribes toward arbitration rather than revenge because major elements of ‘urf (asylum, affiliation with other tribe) no longer apply.
Until today, customary law continues to be applied informally among tribal groups dealing with internal issues. The shaykh or a hereditary judge of a tribal group is called on to settle internal disputes. The basic principle of customary law is reconciliation offering reasonable compensation for the victim’s side without humiliating the other. The blood relatives of both parties play an active part in the process. What is surprising is the level of involvement of high-ranking government officials and religious authorities in tribal cases. As mentioned earlier it spans from active participation as mediators to judges ruling according to customary law.
Currently, it seems that Saudi authorities use whatever legal system best serves their purpose, making them laws of convenience rather than laws of conviction. Whichever is the alternative, it is essential to have a legal system that is harmonious with the overall social contract and embodies acceptable solutions to legal problems. Here is the meeting point of the different legal approaches: The majority of Saudis continue relying on them, sometimes unconsciously, because they have worked. And if necessary, Saudi society is pragmatic — seeking and incorporating multiple legal solutions. While over the last 30 years, political and religious elites were in a constant power struggle, tribal groups were able to gain ground on the social and judicial level.
Over the last 30 years...tribal groups were able to gain ground on the social and judicial level.