The Authority of Judges under Shariah: Perspectives on Recent Legal Reforms in Saudi Arabia
The Authority of Judges under Shariah:
Perspectives on Recent Legal Reforms in Saudi Arabia
Mohammad Bashayreh
Abstract: In the legal system of Saudi Arabia, legal rules are derived from Islamic law (fiqh), which is sourced from Shariah. By virtue of the methodology of inferring Shariah rulings, there is a multiplicity of fiqh. According to Islamic jurisprudence, judges determine the legal rules by applying their legal method. The authority of judges to determine the content of Shariah, i.e., to pronounce what the law is, has augmented their independence from the government to create legal rules through judicial precedent. This explains the stance against codification that has persisted in the Saudi legal system until recently. However, this has inevitably led to inconsistency in judgments. Current legal reforms in Saudi Arabia favour consistency of court decisions through mandating courts to apply statute law. This bears on constitutional principles of the relationship between State authorities in Islamic law, especially when codified rules come from different schools of Islamic law regardless of the one followed by the competent judge. This article seeks to demonstrate that the current legal reforms in Saudi Arabia culminate in an evolutionary process, but are not a revolution in Islamic law. To demonstrate that, this article examines the relevant Islamic jurisprudence from the works of early Muslim jurists. It identifies the legal rules pertaining to the court system and distinguishes those rules that are subject to reconsideration with time (referred to as the ‘context-dependent rules’ in this article) and those that are strictly prescribed by Shariah and not susceptible to change (referred to as the ‘time-transcending rules’ in this article).

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