Abstract
In this chapter, I analyze the (pseudo)constitutional model of Saudi Arabia, which I consider to be a separate and distinct model in respect of the aforementioned ones. Here, I discuss the interaction between sharı̄ʿa and a Western-derived legal system based on the instrument or the royal decree as an administrative act, therefore, in the virtual absence of the Western notion of “law”. The Saudi model’s peculiarity mainly relies on its direct reference to sharı̄ʿa, without the mediation of a constitutional clause founding its applicability according to certain rules, as in the case of Egypt. On the contrary, here the Basic Law refers to sharı̄ʿa in a declaratory way, considering it as a preexisting reality that does not need further legal recognition by the State, with relevant implications.
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Notes
- 1.
Vogel, Frank E. Vogel, Islamic Law and Legal System. Studies of Saudi Arabia, Brill, Leiden-Boston-Köln 2000, p. xiv.
- 2.
On the historical and ideological background of Wahhābīsm, see the monographic essay of Hamid Algar, Wahhabism. A Critical Essay, Oneonta, New York 2002, especially pp. 1–70. See also Natana J. Delong-Bas, Wahhabi Islam. From Revival and Reform to Global Jihad, Oxford University Press, Oxford 2004, pp. 7–92.
- 3.
On the origin of the royal dynasty and for a comprehensive history of Saudi Arabia, see Madawi al-Rasheed [2002], A History of Saudi Arabia, Cambridge University Press, Cambridge 2003.
- 4.
Ibid., pp. 25 ff.
- 5.
Ibid., pp. 46 ff.
- 6.
Ibid., pp. 71 ff.
- 7.
The 1926 constitution defined Ḥijāz as a “monarchical, constitutional and Muslim State” (art. 2). According to the text, the “entire administration of the Kingdom of the Ḥijāz is in the hands of His Majesty” (art. 5). The only restraint the charter poses to the monarchical absolutism is in this case the sharīʿa itself, which bounds the King (art. 5). The 1926 Ḥijāz charter is a first constitutional attempt, however outlining an absolute monarchy in which the sovereign is vested with virtually every power, and where the legal restraint is not represented by the constitution, but by the sharīʿa, however without an identification between the two as in the 1992 Saudi basic law. For the complete text, see Amos Jenkins Peaslee (ed.), Constitutions of Nations, vol. III, Martinus Nijhoff, The Hague 1956, pp. 266 ff.
- 8.
For a brief analysis of the Saudi legal system, with particular reference to its Islamic dimension, see Chibli Mallat, Introduction to Middle Eastern Law, Oxford University Press, Oxford-New York 2007, pp. 160 ff. Mallat describes the country as a State “on the other side of the spectrum of explicit Islamic constitutionalism”, which “have systematically rejected the principles of representative elections” (ibid., p. 160).
- 9.
I will come back to this point later on in the course of this chapter.
- 10.
On the historical and political context in which the Basic Law was adopted, see Joshua Teitelbaum, Saudi Arabia, in Middle East Contemporary Survey, vol. XVI, ed. Ami Ayalon, Westview Press, Boulder-San Francisco-Oxford 1992, pp. 668–670.
- 11.
Basic Law of Governance, art. 1. Adopted with Royal Order n. A/91, 27 shaʿbān 1412H (March 1st, 1992), published in Umm al-Qura Gazette n. 3397, 2 Ramaḍān 1412H (March 5, 1992). As in the Somali case, the English acronym PBUH is once again referred to the phrase “peace be upon him”, accompanying Muḥammad’s name. The English excerpts come from the official translation provided by the Saudi embassy in Washington (https://www.saudiembassy.net/basic-law-governance). However, the Arabic terms have been transliterated and italicized according to the general rules followed in this work.
- 12.
Liebesny highlights this point observing that “royal decrees have been enacted which for all intents and purposes have the force of law”, but since sharīʿa “does not give legislative power to the ruler, legislation is Saudi Arabia has the character of administrative regulations which are permissible under sharīʿa law” (Herbert J. Liebesny, The Law of the Near and Middle East. Readings, Cases, and Materials, State University of New York Press, Albany 1975, p. 107). Abiad observes that the absence of any real legislative body in Saudi Arabia is explained by the fact that the idea of legislation is inconsistent with sharīʿa (Nisrine Abiad, Sharia, Muslim States and International Human Rights Treaty Obligations. A Comparative Study, British Institute of International and Comparative Law, London 2008, p. 108).
- 13.
These observations do not stand without consequences, provided that, as concretely happens, a sharīʿa court can refuse to apply royal decrees in cases under its jurisdiction when considering that the matters coming to relevance are already covered by sharīʿa-derived rules. Cf. Cyndi Banks, James Baker, Comparative, International, and Global Justice. Perspectives from Criminology and Criminal Justice, SAGE Publications, Thousand Oaks-London 2016, p. 49.
- 14.
As previously mentioned, the Omani charter of 2006 is officially nominated Basic Law as well. However, the formulation of the text leads to the conclusion of defining it as a de facto constitution in spite of its nomen juris. While the Omani charter can be substantially equated to a constitution in every sense, defining a model sharing the constitutional approach analyzed in the previous chapter, the Saudi Basic Law and its relationship with the idea of constitutionalism is far more complex, as it will be shown in detail.
- 15.
The question of the subjective nature of the roots as interpreted by this maḏhab is rather complex, and providing a concise but correct synthesis is quite difficult. For the purpose of this work, it is however possible to say that subordinately to Qurʼān and sunnah, the school admits the idea of consensus, although limitedly to Muḥammad’s companions (ṣaḥābah), while referring as extrema ratio to their individual opinions. Referring to consensus of the Muslim community is generally not permitted. On the same ground, analogy was generally disregarded by Aḥmad ibn Ḥanbal (780–855), founder of the school, although later recovered in some cases by other exponents of it. On the Ḥanbalī school and its understanding of the roots of fiqh, see Irshad Abdal-Haqq, “Islamic Law: An Overview of Its Origin and Elements”, in Understanding Islamic Law. From Classical to Contemporary, eds. Hisham M. Ramadan, Altamira Press, Lanham-New York-Toronto-Oxford 2006, pp. 28–29. With special regard to Saudi Arabia, Wahhābīsm and its usage of Ḥanbalī methodologies and fiqh, see Muhammad Al-Atawneh, Wahhābī Islam Facing the Challenges of Modernity. Dār al-Iftā in the Modern Saudi State, Brill, Leiden-Boston 2010, pp. 14–16, 75–77.
- 16.
The mention of sharīʿa considered as the constitution of the Saudi State on the basis of the Basic Law can also be found in Frank E. Vogel, “Saudi Arabia. Public, Civil, and Individual Shariʿa in Law and Politics”, in Shariʻa Politics. Islamic Law and Society in the Modern World, ed. Robert W. Hefner, Indiana University Press, Bloomington-Indianapolis 2011, pp. 55–56. The author also focuses of the peculiar conception of sharīʿa in Wahhābīsm, with its tensions and its paradoxes.
- 17.
“The Qur’an is the dustur (constitution), not necessarily in the contemporary legal and political sense, in Islam that is the source of rights and duties for a Muslim to be authentically understood in the spirit of moderation. Placing the Qur’an as the ‘constitution’ or foundation stone of Islam, al-Ghazali grants it a position of precedence in the methodology employed to interpret the Shari’ah’s sources” (Mohammed Moussa, Politics of the Islamic Tradition. The Thought of Muhammad al-Ghazali, Routledge, London-New York 2016, p. 103).
- 18.
As Crone observes, the Islamic sharīʿa “was, or rather included, a constitution in the broadest sense of the word: a set of rules that allocated functions, powers, and duties among the various agencies and offices of government and defined the relationship between them and the public […] But a constitution in this sense of the word is simply a frame of government or political order: a set of rules which organize, but do not restrain, the exercise of power. In order for the rules to yield constitutional government they have to include restraints, normally identified as a bill of rights and institutional devices for securing their observance. The Sharīʿa does not include a bill of rights, let alone of rights perceived as common to all mankind, but it could still be said to guarantee personal freedoms for Muslims and people under their protection, and to seek to restrain arbitrary power” (Patricia Crone, God’s Rule. Government and Islam, Columbia University Press, New York 2004, p. 281).
- 19.
“The Holy Koran is the Constitution of the Socialist People’s Libyan Arab Jamahiriya”. Declaration on the Establishment of the Authority of the People, 1977, art. 2. Moreover, the preamble of the declaration describes the Qurʼān as “the everlasting source for guidance and as the ordinance of society”. Formally changing the name of the Libyan State, the declaration establishes the Socialist People’s Libyan Arab Jamahiriya. This last word (Jamāhīrīyah) is a neologism that could be translated as “people’s rule” or “State of the masses”, and came to mean the official political doctrine of the State as shaped by colonel Muʿammar al-Qadhdhāfī. The ideological pillars of the Jamāhīrīyah, as expressed in Qadhdhāfī’s Green Book, were a combination of socialism, Arabism, democracy and Islam. In particular, the Jamāhīrīyah was conceived as a direct democracy without political parties, where the Arab and Islamic identity played an important role. On this point, see Amal Obeidi, Political Culture in Libya, Curzon, Richmond 2001, pp. 141 ff.
- 20.
“The Koran was and will continue to be our constitution […] I take an oath before Allah and before you all that regardless of the actual text [of the constitution] […] Allah willing the text will truly reflect [Sharia], as will be agreed upon by the Egyptian people, by the Islamic scholars, and by legal and constitutional experts” (cit. in Antonio Perra, “Between Expectations and Reality: the Arab Spring in Egypt”, in Hemispheres, vol. XXIX, n. 2, 2014, p. 16). About the Qurʼān being Egypt’s constitution in Morsi’s thought, consider also the already mentioned excerpt in May Darwich, “The Ontological (In)security of Similarity: Wahhabism versus Islamism in Saudi Foreign Policy”, in Foreign Policy Analysis, vol. XII, n. 3, July 2016, p. 482.
- 21.
The term maqāṣid al-sharīʿa denotes the objectives of the shari’a, which as mentioned involves all the life of the believer. The majority of classical authors agree in recognizes among these objectives the protection of religion, life, intellect, procreation and property, while other authors include happiness and justice as well. For an essential analysis on this point, see Jasser Auda, Maqāṣid Al-Sharīʿa. A Beginner’s Guide, The International Institute of Islamic Thought, London-Washington 2008, especially pp. 1–16.
- 22.
Knut S. Vikør, Between God and the Sultan. A History of Islamic Law, Oxford University Press, Oxford 2005, p. 280.
- 23.
In a comparative way, Mahler highlights this point, however equating the function of sharīʿa to the one of a Western constitution, a point that is not sharable for the above exposed reasons: “Saudi Arabia cannot be said to have a true constitution. Saudi Arabia has no constitution per se. Sharia, the sacred law of Islam, is the fundamental law in the kingdom and functions similarly to a constitution in the Western sense” (Gregory S. Mahler, Constitutionalism and Palestinian Constitutional Development, Palestinian Academic Society for the Study of International Affairs, Jerusalem 1996, p. 85). The impossibility for the kingdom of adopting a constitution was explicitly expressed by members of the royal house as well. For instance, prince Abd Allāh bin ʿAbd al-ʿAzīz, future king of Saudi Arabia, responded in 1982 to prince Talal bin ʿAbd al-ʿAzīz, who argued that Saudi Arabia had no constitution protecting rights and liberties, by stating: “Saudi Arabia has a constitution inspired by God and not drawn up by man. I do not believe there is any Arab who believes that the Koran contains a single loophole which would permit an injustice to be done. All laws and regulations in Saudi Arabia are inspired by the Koran and Saudi Arabia is proud to have such a constitution” (cit. in Joseph A. Kechichian, Succession in Saudi Arabia, Palgrave Macmillan, New York 2001, pp. 2–3). Curiously, this is true for the kingdom of Saudi Arabia, but not for the former kingdom of Ḥijāz with its 1926 constitution.
- 24.
In this sense, Abiad, Sharia, Muslim States and International Human Rights Treaty Obligations, cit., p. 47; Joseph E. Lowry, “Law”, in The Cambridge Companion to Modern Arab Culture, ed. Dwight F. Reynolds, Cambridge University Press, Cambridge 2015, p. 92; Arskal Salim, Challenging the Secular State. The Islamization of Law in Modern Indonesia, University of Hawai’i Press, Honolulu 2008, pp. 79–80.
- 25.
Basic Law, 1992, art. 7. The original Arabic terms implied for “(basic) law” and “laws” is once again niẓām, with the already mentioned implications regarding its relationship with the Western idea of law and with sharīʿa.
- 26.
Vogel highlights this point stating that “Saudi Arabia stands apart from all other Muslim countries, since it consciously preserves the basic features of a constitutional system that prevailed in most of the Muslim world for the last thousand years […] This system survives in modern Saudi Arabia—in fact, with greater force and consistency than in most historical systems. (The country’s basic law of government, issued in 1992, acknowledges the system explicitly.) The fiqh realm, administered by scholars, encompasses the bulk of the law of the land. The general civil and criminal law is uncodified by the state; cases are adjudicated by judges, themselves scholars, applying their own understanding of shariʿa” (Vogel, Saudi Arabia. Public, Civil, and Individual Shariʿa, cit., pp. 56–58).
- 27.
Basic Law, 1992, art. 17.
- 28.
Basic Law, 1992, art. 21.
- 29.
On this point, cf. Christoph Wilcke, “Saudi Arabia”, in Encyclopedia of Human Rights, vol. IV, ed. David P Forsythe, Oxford University Press, Oxford 2009, especially pp. 396–398. With regard to this, Emon notes that in the Saudi case “the scope of human rights protection will significantly depend on how one understands the scope and contents of Sharīʿa” (Anver M. Emon, Religious Pluralism and Islamic Law. Dhimmis and Others in the Empire of Law, Oxford University Press, Oxford 2012, p. 233).
- 30.
Basic Law, 1992, art. 26.
- 31.
On the power of the king of making rules and regulations, Vogel again observes that the conditions are almost the reverse with respect to sharīʿa, in that “law is not divinely indicated at all, but man-made (albeit under a divine delegation), and it is written, public, and intended for general application” (Vogel, Saudi Arabia. Public, Civil, and Individual Shariʿa, cit., p. 58). The author ascribes this lawmaking power to the non-juridical field of siyāsa (political governance).
- 32.
To be noted that this dichotomy was also present in the 1926 constitution of the kingdom of Ḥijāz, where it was explicitly affirmed that the regulations issued by the political power (al-ahkām) had to be in line with the Qurʼān, the sunnah and with the conducts of the salaf (art. 6).
- 33.
In this regard, some authors speak about applying sharīʿa in a “non-codified” form (Vogel, Saudi Arabia. Public, Civil, and Individual Shariʿa, cit., p. 56; Rudolph Peters, Crime and Punishment in Islamic Law. Theory and Practice from the Sixteenth to the Twenty-First Century, Cambridge University Press, Cambridge 2005, p. 148; Dorthe Bramsen [2010], “Divine Law and Human Understanding—The Idea of Shariʿa in Saudi Arabia”, in Shari‘a As Discourse. Legal Traditions and the Encounter with Europe, eds. Jørgen S. Nielsen, Lisbet Christoffersen, Routledge, London-New York 2016, p. 161). While this is undoubtedly true, I prefer to speak about a direct and non-mediate applicability of sharīʿa, given that, as already explained, a codified version of sharīʿa would result in its complete denaturation, and could instead be called national legislation inspired by Islamic principles.
- 34.
Basic Law, 1992, art. 23. The word da’wah refers to the action of calling others to Islam, considered to be a moral duty for Muslim believers, a concept directly mentioned in the Qur’an (XLI, 33; XVI, 125).
- 35.
On the Wahhābī reforms and the movement’s relationship with Saudi Arabia, see Alexander Knysh, Islam in Historical Perspective, Routledge. London-New York 2017, pp. 392–395. On Wahhābīsm and its legal view, see Muhammad Al-Atawneh, Wahhābī Islam Facing the Challenges of Modernity. Dār al-Iftā in the Modern Saudi State, Brill, Leiden-Boston 2010, pp. 55–82. In the history of Islam, Wahhābīsm is a rather recent movement, and on its restorationist view in legal issues Algar observes: “From the point of view of Wahhabism itself, it might, of course, be argued that precisely this lack of historical precedent is a virtue, the whole purpose of Wahhabism being to dismantle the complex and intricate structures of law, theology and mysticism, not to mention religious practice, that had grown up since the completion of the Qur’anic revelation, and to find a way back directly to the twin sources of Islam, to the Qur’an and the Sunna” (Algar, Wahhabism. A Critical Essay, cit., p. 10). As Vogel puts it, the Wahhābīs “strove to regain the pure practice of the salaf, the pious forebears, and shake off the cultural accretions of intervening centuries. They were not content with pious wishes or memories of an idealized past but insisted on making Islam a living reality. They sought this by means of a rigorous legalist approach to the revealed scriptures, the material texts of the revelation through the Prophet Muḥammad. Their religiosity is uniquely founded on purist, even puritanical, adherence to Islamic law” (Vogel, Islamic Law and Legal System, cit., p. xvi).
- 36.
On this point, see Hunt Janin, André Kahlmeyer, Islamic Law. The Sharia from Muhammad’s Time to the Present, McFarland & Company, Jefferson-London 2007, p. 158; Nabil Mouline, The Clerics of Islam. Religious Authority and Political Power in Saudi Arabia, Yale University Press, New Haven 2014, p. 12. According to Vogel, “Western law and legal conception have never invaded the essential core of the Saudi legal system. Saudi Arabia never experienced the western colonization that in virtually every other Muslim country drastically transformed the legal system” (Vogel, Islamic Law and Legal System, cit., p. xiv). In particular, Vogel correctly highlights the continuity of the application of sharīʿa in the legal systems of Saudi territories, which knew no ban imposed by foreign powers as in the case of colonized countries.
- 37.
Cf. Clive Leatherdale [1983], Britain and Saudi Arabia, 1925–1939. The Imperial Oasis, Frank Cass, Abingdon-New York 2005, p. 77.
- 38.
On Saudi criminal law, see Peters, Crime and Punishment in Islamic Law, cit., pp. 148–152. Peters considers Saudi Arabia as the country in which Islamic criminal rules are applied the most today, followed by Yemen and Qatar, however with a greater degree of “codification” into national legislation.
- 39.
Basic Law, 1992, art. 38.
- 40.
Basic Law, 1992, art. 38. While the official translation generally mentions the impossibility of imposing sanctions ex post facto, the original Arabic is more explicit in stating that this point—as unavoidable—regards only statutory provisions, and not sharīʿa which is necessarily not enacted. From this point of view, the translation of this article provided by W.I.P.O. appears to be more appropriate (“Punishment shall be carried out on a personal basis. There shall be no crime or punishment except on the basis of a sharīʿa or a statutory provision, and there shall be no punishment except for deeds subsequent to the effectiveness of a statutory provision”).
- 41.
In the Islamic legal tradition, qiṣāṣ refers to the Mosaic law, applicable to the cases of personal injuries and homicide. According to this doctrine, the victim or the family could alternatively ask for a proportionate retaliation on the offender, pardon him or her, or ask for a monetary compensation (diya, so-called blood money). The ḥudūd penalties, etymologically recalling the idea of the “boundaries”, represent the boundaries set for by Allāh for mankind in his revelation. The ḥudūd are prescribed only for determined offences, such as apostasy, illicit sexual intercourse (zināʾ), false accusation of zināʾ, highway robbery, theft and drinking alcohol. They come along with a determined punishment, which is therefore not discretional. However, based the strict procedural requisites for their enforcement their implementation was considered very rare. In modern legal systems, the ḥudūd are almost completely replaced by national legislation, sometimes inspired by Muslim principles, however excluding their direct applicability. Saudi Arabia is the most outstanding exception to this. Lastly, taz’ir is a residual category comprehending acts not included in the previous two groups, for which the qāḍī can apply a discretional punishment. On punishment and criminal offences is Islam, see Peters, Crime and Punishment in Islamic Law, cit.; Hashim Kamali, Crime and Punishment in Islamic Law. A Fresh Interpretation, Oxford University Press, New York 2019. For an analysis on the contemporary scenario, see Muhammad al-Madni Busaq, Perspectives on Modern Criminal Policy & Islamic Sharia, trans. Zubair Ahmad, Naif Arab University for Security Sciences, Riyadh 2005.
- 42.
From this point of view, it is necessary to bear in mind that “one of the rationales of the punishment in Islamic law is to cleanse the Muslim offender by imposing the appropriate punishment”, at such an extent that it can be considered as “a spiritual salvation method” (Hisham M. Ramadan, “On Islamic Punishment”, in Understanding Islamic Law. From Classical to Contemporary, ed. Hisham M. Ramadan, AltaMira Press, Lanham-New York-Toronto-Oxford 2006, p. 43). Moreover, according to Peters, in an effectively Islamic context punishments have a “vertical dimension”, “in that they relate to reward and punishment in the Hereafter” (Peters, Crime and Punishment, cit., p. 30).
- 43.
For an overview of Saudi criminal justice, considered as the epitome of the most traditional Islamic system today, with a specific mention of the 2007 reforms, see Obi N. I. Ebbe, Jonathan Odo, “The Islamic Criminal Justice System”, in Comparative and International Criminal Justice Systems. Policing, Judiciary, and Corrections, ed. Obi N. I. Ebbe, CRC Press, Boca Raton-London-New York 2013, pp. 222–223.
- 44.
When analyzing Islamic criminal systems today, Peters correctly observes that in countries such as Yemen, Qatar and most of all Saudi Arabia, the most recent progress of Westernization—and modernization—passes through the administrative reforms of the courts, and not of the substantive provisions, which remain almost unaltered (Peters, Crime and Punishment in Islamic Law, cit., p. 143).
- 45.
This point is properly highlighted by Bramsen, who observes that a Saudi judge should perform ijtihād and “strive for the divine truth in every case that confronts him, both concerning the law and the judgment, without being bound by past opinions. There is no rule of precedent, stare decisis, in Islamic law as interpreted by the Saudis” (Bramsen, Divine Law and Human Understanding, cit., p. 161).
- 46.
On the Commission, see Anthony H. Cordesman, Saudi Arabia. National Security in a Troubled Region, Praeger Security International, Santa Barbara-Denver-Oxford 2009, pp. 286–289.
- 47.
I do not mention here the social contract theory, evidently alien to the Saudi political discourse. This theory is indeed inherent to an internal dimension of State, that is to say to the way in which the State thinks of itself as a community established by virtue of a shared act of belief. The interior conception of power in Saudi Arabia will be analyzed in the following subparagraph.
- 48.
On this discrepancy between the universalist claim of Islam and the institutionalization of the Saudi State, cf. James Piscatori, Amin Saikal, Islam Beyond Borders. The Umma in World Politics, Cambridge University Press, Cambridge 2019, pp. 85–117.
- 49.
I will examine this point in detail in the following chapter.
- 50.
On this episode, and more in general on the confrontation between the Saudi royal family and the Ikhwān, see Joseph Kostiner, The Making of Saudi Arabia, 1916–1936. From Chieftaincy to Monarchical State, Oxford University Press, Oxford 1993, pp. 117–140; James Brian McNabb, A Military History of the Modern Middle East, Praeger, Santa Barbara-Denver 2017, pp. 81–83; Michael Crawford, “Religion and Religious Movements in the Gulf, 1700–1971”, in The Emergence of the Gulf States. Studies in Modern History, ed. John E. Peterson, Bloomsbury Academic, London-New York 2016, p. 65.
- 51.
“Consolidation of the national unity is a duty. The State shall forbid all activities that may lead to division, disorder and partition”. Basic Law, 1992, art. 12.
- 52.
As Piscatori and Saikal observe, the asserted claim to a sort of universalistic guardianship of the ummah, as well as the representativeness of a universally pure form of religious observance, is considered to be incoherent with the historical and political evolution of the kingdom. Cf. Piscatori, Saikal, Islam Beyond Borders, cit., pp. 85–117.
- 53.
This discrepancy, evident in the case of Saudi Arabia because of a direct and immediate effect assigned to sharīʿa, is mentioned by Boroujerdi with regard to Iran as well (Mehrzad Boroujerdi, “Iran”, in The Middle East, ed. Ellen Lust, SAGE, Thousand Oaks 2017, p. 482). In consideration of the Iranian legal system, in which sharīʿa is not given an immediate validity comparable to the extent in which it is applied in the Saudi model, this position is not entirely sharable with regard Iran, but it is with regard to Saudi Arabia.
- 54.
Basic Law, 1992, art. 6.
- 55.
In the Islamic tradition, such a conception of the bond between the rulers and the people are not simply derived from the universalistic view of Islam and sharīʿa, but mirrors the nomadistic and tribal context in which Islam first grew and flourished, a context characterized by the preeminence of the belonging to determined clans and families, With regard to Europe, Weiner asserts that the process of Christianization of the Anglo-Saxon tribes marked the passage from the idea of kinship to the idea of kingship, thus from the rule of the clan to the rule of the law. Cf. Mark S. Weiner, The Rule of the Clan. What an Ancient Form of Social Organization Reveals About the Future of Individual Freedom, Ferrar, Straus and Giroux, New York 2013, pp. 135–146. The author analyzes early Islamic society as well, where the advent of Muḥammad and the Islamization of the Peninsula brought about a similar passage from kinship to kingship, by virtue of the overcoming of the bond of blood (ibid., pp. 147–170). This is certainly true, but is also to be observed that some tribal elements survived, and were in some way absorbed into the new universalistic Muslim community. An example is constituted by the importance given to Muḥammad’s tribe, and this peculiar conception of the bayʿah.
- 56.
Podeh observes that the procedures of nominating a Saudi king resemble indeed those of selecting ancient caliph. Moreover, the personal element of fidelity in the oath of allegiance pledged to the kings is highlighted by the very history of the monarchy and of its sovereigns. Cf. Elie Podeh, The Politics of National Celebrations in the Arab Middle East, Cambridge University Press, Cambridge 2011, pp. 264–271. As is evident, with the oath sworn to a king the people enter into an individual relationship with the ruler, and this, coherently with the Islamic personified conception of power, implies serious responsibilities. The bayʿah, indeed, can be denied as well as conceded, and can be also revoked should the ruler violate its duties. On this last point, see Michael Herb, All in the Family. Absolutism, Revolution, and Democracy in Middle Eastern Monarchies, State University of New York Press, Albany 1999, pp. 36–37.
- 57.
To be noted that the bayʿah given to a caliph was modeled after pre-Islamic rituals of power that characterized tribal Arabia. Cf. M. A. Muqtedar Khan, “Islamic Governance and Democracy”, in Islam and Democratization in Asia, ed. Shi** Hua, Cambria Press, Amherst 2009, pp. 22–25.
- 58.
Basic Law, 1992, art. 8.
- 59.
Historically, the principle of shūrā dates back to the appointment of the third caliph, ʿUthmān, by a committee established by the second caliph ʻUmar (cf. Wilferd Madelung [1997], The Succession to Muḥammad. A Study of the Early Caliphate, Cambridge University Press, Cambridge 2001, pp. 57–77). Since then, the idea of consultation acquired a central importance in Islam, with special reference to the appointment of rulers. On this concept in general, see Roswitha Badry, “Consultation” (voice), in The Princeton Encyclopedia of Islamic Political Thought, ed. Gerhard Bowering, Princeton University Press, Princeton 2016, pp. 116–117.
- 60.
Some authors argue that the principle of shūrā can actually be held as an example to prove the democratic nature of Islam at the time of its origins, therefore drawing a parallelism between ancient Islamic societies and contemporary liberal democracies. While the idea of shūrā undoubtedly represents a concept in which the opinion of the community is valorized in decision-making processes, the philosophical perspective in which it has been conceived prevents from drawing an effective parallelism with the Western idea of democracy, whose historical development followed a different path and presupposes different sociological and juridical conceptions. On the fundamental differences between the two ideals, see Abdelwahab El-Affendi, “Democracy and Its (Muslim) Critics: An Islamic Alternative to Democracy?”, in Islamic Democratic Discourse. Theory, Debates, and Philosophical Perspectives, ed. M. A. Muqtedar Khan, Lexington Books, Lanham 2006, p. 233. For an overview of the doctrinal debate of the relationship between shūrā and democracy, see Badry, Consultation, cit., pp. 116–117. As this latter author puts it, it is however to be observed that often “theories of an Islamic democracy have offered reformulations of Western perceptions in an Islamic idiom rather than a real alternative” (ibid., p. 117).
- 61.
Basic Law, 1992, art. 24. While ḥajj is one of the five pillars of Islam and according to sharīʿa its performance is mandatory for every Muslim at least once in a lifetime, the other two pilgrimages, ʿumrah to Mecca and the visit to the Prophet’s Mosque (ziyārah), are not considered mandatory although recommended by the majority of Sunnī jurists.
- 62.
Basic Law, 1992, art. 33.
- 63.
Basic Law, 1992, art. 34. The defense of “the creed” is put together with the defense of society and homeland as in the previous article, and once again precedes them.
- 64.
Basic Law, 1992, art. 23.
- 65.
“Let there arise out of you a band of people inviting to all that is good, enjoining what is right, and forbidding what is wrong: they are the ones to attain felicity” (Qurʼān, III, 104, trans. Abdullah Yusuf Ali [1934], The Meaning of the Holy Qurʾān, Amana Publications, Beltsville 2004, p. 154). “Ye are the best of peoples, evolved for mankind, enjoining what is right, forbidding what is wrong, and believing in Allah. If only the People of the Book had faith, it were best for them: among them are some who have faith, but most of them are transgressors” (III, 110, p. 155). “The believers, men and women, are protectors, one of another: they enjoin what is just, and forbid what is evil: they observe regular prayers, practice regular charity, and obey Allah and His Messenger. On them will Allah pour His mercy: for Allah is Exalted in power, Wise” (IX, 71, p. 459). “Those that turn (to Allah) in repentance; that serve Him, and praise Him; that wander in devotion to the Cause of Allah; that bow down and prostrate themselves in prayer; that enjoin good and forbid evil; and observes the limits set by Allah—(these do rejoice). So proclaim the glad tidings to the Believers” (IX, 112, p. 471). “O my son” Establish regular prayer, enjoin what is just, and forbid what is wrong; and bear with patient constancy whate’er betide thee; for this is firmness (of purpose) in (the conduct of) affairs”. “(They are) those who, if We establish them in the land, establish regular prayer and give regular charity, enjoin the right and forbid wrong: with Allah rests the end (and decision) of (all) affairs” (XXII, 41, p. 833). (XXXI, 17, p. 1038). According to Ali’s explanation, the ultimate establishment of a universal community of the believers, uniquely tied by bonds of faith, implies “(1) Faith, (2) doing right, being an example to others to do right, and having the power to see that the right prevails, (3) eschewing wrong, being an example to other to eschew wrong, and having the power to see that wrong and injustice are defeated. Islam therefore lives, not for itself, but for mankind” (p. 155, note 434).
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For this function intended as a fundamental task of the political power, see Crone, God’s rule, cit., pp. 300–303. In classical Islam, al-Māwardī dedicates a section of his most notable and already mentioned work to this principle (see al-Māwardī [XI c.], Al-Aḥkām as-Sulṭaniyyah. The laws of Islamic governance, trans. Asadullah Yate, Ta-Ha Publishers, London 1996, pp. 337–362).
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In the Saudi context, the already mentioned Commission for the Promotion of Virtue and the Prevention of Vice (hay’ah) is specifically responsible for the ḥisbah.
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Ramaioli, F.L. (2024). The Saudi Model and Sharīʿa as Constitution. In: Shari'a and the Constitution in Contemporary Legal Models. Global Issues. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-37836-2_4
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