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Introduction*
Saudi Arabia stands out in the Muslim world for its formal legal system which has continuously evolved from medieval models.[1] This is particularly evident in the criminal domain. While significant statutes have been enacted in other areas of law,[2] Saudi criminal law remains minimally codified, especially in areas of ḥudūd (paramount prescribed punishments), taʿzīr (discretionary punishments), and qiṣāṣ (criminal retributive justice).[3] This indicates that Saudi judges have consistently wielded considerable discretion in applying Islamic criminal rules and precedents, reflecting a continuation of classical sharīʿa judgeship. Taking into account the monarchy’s interest in upholding sharīʿa, an examination of recent royal edicts regarding ḥudūd provides an invaluable opportunity to analyze the jurisprudence of ḥudūd within both an authentic setting and a contemporary context.
Recent developments revolve around Royal Edict No. 56485 (2018), which abolished the precedent widely called al-ḥukm bi-l-shubha (convictions based on doubt),[4] and Royal Edict No. 25634 (2019), which abolished al-taʿzīr bi-l-jald (discretionary flogging punishments).[5] The precedent of al-ḥukm bi-l-shubha allowed judges to issue problematic convictions in cases lacking evidentiary certainty, while the precedent of al-taʿzīr bi-l-jald sanctioned corporal punishment at judicial discretion without clear, standardized guidelines. Such powerful edicts are not unusual for the assertive Saudi monarchy, where the monarch rules and reigns simultaneously.[6] However, even by Saudi standards, these edicts stand out as direct royal commands to the judiciary to change some of its established ḥudūd precedents.
These commands highlight embedded tensions in the application of ḥudūd, particularly its treatment of doubt and its boundary-setting relationship with taʿzīr offenses. Furthermore, these changes signal a deliberate shift in the Saudi legal system’s approach to the application of ḥudūd, reflecting an evolving relationship between the monarchy and the judiciary. They also raise questions about the extent to which Islamic legal principles remain flexible under monarchical authority. Given that ḥudūd are traditionally seen as divinely mandated limits, royal intervention in their application introduces a theologically sensitive layer. These edicts offer a lens through which to explore how human authority exercises agency in relation to what are understood as God’s fixed commands. As such, these edicts illuminate the broader dynamics of Islamic law’s evolution, highlighting how classical Islamic legal doctrines are being adjusted within contemporary structures of political authority and through direct involvement in judicial practice.
Considering these royal edicts’ concise, conclusive nature, I contextualize them using relevant rules and precedents applied in Saudi courts. I then analyze them in light of their proceedings and impacts, in relation to their contexts. Ultimately, this analysis is guided by two notions: First, Saudi monarchical decrees are open to public scrutiny and bound by public interest, as they are part of the res publica sphere because collective efforts are made to enact and implement them,[7] and second, monarchical decrees are interventions in contexts, not the context itself, and thus they ought to have significant impacts (presumably positive), otherwise, they would be unwarranted.[8]
An Overview of the Saudi Legal System
Two forms of rules apply in Saudi Arabia: sharīʿa rules and statutory rules. This duality of legislation is upheld across all levels, beginning with the Basic Law which states that: "Courts shall apply to cases brought before them the provisions of sharīʿa, as indicated by the Qurʾān and Sunna, as well as the statutes issued by walī al-amr [i.e., the monarch] that do not contradict the teachings of the Qurʾān and Sunna."[9] The same principle is affirmed in the Judiciary Statute,[10] Statute of Procedures Before Sharīʿa Courts,[11] Statute of Procedures Before the Board of Grievances,[12] and Statute of Criminal Procedures.[13]
These provisions guide the Saudi judiciary’s application of sharīʿa rules. Primarily, Saudi courts apply conclusive sharīʿa rulings (aḥkām qaṭʿiyya) which are provided by the conclusive texts of the original sources of sharīʿa, the Qurʾān and Sunna (nuṣūṣ/adilla qaṭʿiyya).[14] It is conventionally held that for a text to be deemed conclusive, it needs clarity and certainty in authenticity and indication (qaṭʿī al-thubūt wa-l-dalāla).[15] Texts and sources that do not satisfy the criteria are considered probable, speculative indicators of legal rulings (adilla ẓanniyya), which provide deductive, probable rulings (aḥkām ẓanniyya/ijtihādiyya).[16] The corpus of determinations and precedents that emerge as a result of the jurists’ legal reasoning (ijtihād) and their disagreement (ikhtilāf) in deducting rules from texts and other sources of sharīʿa is known as fiqh.[17] The dynamics of ijtihād and fiqh are also influenced by the time-honored structures of Islamic legal schools or guilds (pl. madhāhib; sing. madhhab), most relevant of them to Saudi courts are the four Sunnī madhāhib: Ḥanafī, Mālikī, Shāfiʿī, and Ḥanbalī.[18] It is the overwhelming feature in sharīʿa that an area of law contains both conclusive and deductive aspects. For example, in ḥudūd, there are certain conclusive rules; however, they do not represent the whole doctrine as ḥudūd jurisprudence is chiefly comprised of deductive rules derived from speculative indicators, as outlined in fiqh treatises.
The Saudi judiciary’s approach falls within these lines—conclusive texts and rulings bind the judiciary, and in areas of ijtihād, the judiciary generally gives deference to the Ḥanbalī opinion.[19] The preference of the Ḥanbalī madhhab was initially prescribed in 1928 by the Judicial Supervision Commission Resolution No. 3, which obliged judges to adjudicate cases according to the Ḥanbalī madhhab only.[20] The Commission’s rationale was that the Ḥanbalī madhhab is more accessible, and Ḥanbalī jurists are more dedicated to supporting their rulings with evidence.[21] The Commission provided a vague caveat that whenever a Ḥanbalī precedent would cause hardship (mashaqqa), other precedents may be applied after deep consideration.[22] Shortly thereafter, the judiciary’s chairmanship included the specification of the Ḥanbalī madhhab in one of Saudi Arabia’s earliest judicial statutes, the Statute of Unifying the Responsibilities of Sharīʿa Judiciary, particularly in notarial areas, such as certifying contracts, deeds, and affidavits.[23]
However, I would argue that adherence to the Ḥanbalī madhhab was not strict as there were multiple decrees instructing the judiciary to apply the madhhab of the city in certain disputes.[24] In fact, recent scholarship in Saudi Arabia has begun to focus on the judiciary’s application of other madhāhib, concluding that not only does the Saudi judiciary apply precedents from all of the four madhāhib and beyond them, but also that the judiciary tends to favor the Mālikī madhhab and Ibn Taymiyya’s (d. 728/1328) views over standard Ḥanbalī precedents.[25] From a statutory perspective, some judges argue that Resolution No. 3 has been repealed by Article 1 of the Statute of Procedures Before Sharīʿa[26] and, thus, judges are permitted to practice unrestricted ijtihād without adherence to the Ḥanbalī madhhab.[27]
With respect to the statutory rules applied in Saudi Arabia, the Fundamental Laws (al-Anẓima al-Asāsiyya) are supreme, which have significant constitutional value and comprise of the Basic Law of Governance, Ministers Council Statute, Shura Council Statute, Allegiance Council Statute, and the Statute of Provinces.[28] In turn, the ordinary laws (anẓima ʿādiyya) follow, which are the common statutes typically issued with the agreement of the executive (Ministers Council) and the legislative assembly (Shura Council) and enacted by royal decrees.[29] Finally, the regulations (lawāʾiḥ) apply, which are rules issued by cabinet ministers, either individually or collectively.[30]
Another form of Saudi statutory rules are monarchical decrees (irādāt malakiyya), which are proclamations and instructions issued by Saudi monarchs.[31] There are four types of monarchical decrees: royal decree (marsūm malakī), royal edict (amr malakī), noble edict (amr sāmī), and royal/noble directive (tawjīh malakī/sāmī). There is an existing jurisprudence that discusses the different forms and functions of these decrees;[32] however, as this article discusses royal edicts (amr malakī), it is sufficient to explain this type only. A royal edict is the fitting translation for amr malakī, often translated as "royal order/command." Saudi legal scholars regard this type of decrees as the strongest;[33] the phrase royal edict better captures its associated wide jurisdiction and distinctive power. Considering the constitutional and governmental utilization of a royal edict, it is best defined as a formal and official document issued by the monarch of Saudi Arabia in his kingship capacity (i.e., in his role as the head of state), serving as his primary instrument of governance.[34] However, while royal edicts are formally issued by the monarch, they are rarely the product of his efforts alone; heirs and advisors play a central role in shaping and implementing them. In this context, although the edicts examined in this article were issued in the name of King Salman, the influential position of Crown Prince Muhammad b. Salman should not be overlooked.[35]
The Saudi royal prerogative to enact positive laws through decrees derives from the classical doctrine of siyāsa sharʿiyya (governance per sharīʿa).[36] This doctrine emerged in classical Islamic constitutional jurisprudence when jurists recognized that rulers often needed to establish rules beyond the frameworks of fiqh and ijtihād. Nevertheless, most jurists agreed that actions undertaken under the statehood prerogative (taṣarruf bi-l-imāma) must align with sharīʿa and promote the public interest (maṣlaḥa ʿāmma), which are the key stipulations of siyāsa sharʿiyya.[37] Accordingly, under this doctrine, statutory rules are deemed legitimate and enforceable as long as they do not contravene sharīʿa and serve the public interest.
The Saudi Basic Law references the doctrine of siyāsa sharʿiyya, directly linking it to the King’s powers and duties. Article 55 states: "The monarch shall undertake the governing of the nation in accordance with siyāsa sharʿiyya and the dictates of Islam. He shall supervise the implementation of Islamic sharīʿa, the laws, the general policy of the state, and the protection and defense of the country."[38] Regarding public interest (maṣlaḥa ʿāmma), the Basic Law reflects the understanding embedded in siyāsa sharʿiyya insofar that state agents may act only when pursuing a public interest (jalb maṣlaḥa) or avoiding public harm (darʾ mafsada).[39] Article 67 specifies: "The legislative authority shall have the power to promulgate statutes and regulations conducive to the realization of public interest or the prevention of harm in state affairs, in accordance with the principles of Islamic sharīʿa."[40]
In regard to the judiciary’s relationship with the monarch, Saudi statutes emphatically proclaim judicial independence. Article 46 of the Basic Law states: "The judiciary shall be an independent authority. There shall be no power over judges in their judicial function other than the power of the Islamic sharīʿa."[41] The Basic Law also states that the courts shall have jurisdiction to adjudicate all disputes and crimes, without prejudice to the jurisdiction of the Board of Grievances over disputes between the state and private parties,[42] and the same principles are affirmed in the Statute of the Judiciary.[43] Appointments and dismissals of judges are carried out by royal edicts at the recommendation of the Supreme Judicial Council,[44] and Saudi judges do not enjoy life tenure, with the retirement age set at seventy years old.[45] In addition to reaching the retirement age, a judge’s service can be terminated by death, resignation, an early retirement request, or an inability to perform judicial duties due to poor health.[46]
Ethical and professional reasons for judicial dismissal include proven unfit performance during the trial period; multiple below-average marks (three) in adequacy reports; and disciplinary reasons, which are determined in a disciplinary trial by a committee formed by the Supreme Judicial Council.[47] All judicial administrative tasks and disciplinary actions are regulated and enforced by the Supreme Judicial Council, which also regulates circuits’ jurisdictions.[48] Courts’ administrative responsibilities and annual budgets are managed by the Ministry of Justice, and the Chairman of the Supreme Judicial Council and Minister of Justice are two separate positions often held by different individuals; however, since 2012, the Minister of Justice has acted as the Chairman of the Supreme Judicial Council. These statutory provisions theoretically establish the independence of the Saudi judiciary,[49] taking into account that the system does not perceive monarchical decrees on judicial issues as a violation of judicial independence. Monarchical decrees in the judicial domain are not discreet but are publicly announced and typically addressed directly to the judiciary through the Chairman of the Supreme Judicial Council or the Chief Justice of the Supreme Court.
Royal Edict No. 56485 (2018) on al-Ḥukm bi-l-Shubha
1. Discussion of the Precedent
Saudi statutory rules have fully adopted the principle of innocent until proven guilty, prohibiting any criminal liability without a judicial conviction following a trial, in accordance with sharīʿa provisions.[50] The Statute of Criminal Procedures stipulates that no criminal punishment shall be inflicted upon any person without a proven conviction,[51] and that judicial rulings may result in either conviction or acquittal.[52] Conviction is generally understood by Saudi lawyers to require proof beyond a reasonable doubt,[53] with the notable exception of those who uphold al-ḥukm bi-l-shubha. Moreover, Saudi statutes have incorporated exclusionary rules that bar the use of evidence obtained in violation of procedural regulations.[54] Saudi law also limits the executive authority’s power to detain individuals, setting a maximum of 180 days for criminal offenses and 12 months for terrorism-related cases, with any extension beyond these periods requiring judicial approval.[55] If these limits are violated, wrongfully detained individuals may seek compensation through the courts in standard criminal cases.[56] For terrorism-related offenses, compensation claims must first be reviewed by a specialized committee, which must render a decision within 90 days, after which the individual may then pursue legal action in court if not satisfied.[57]
These rules are statutory translations of well-known juristic maxims (qawāʿid fiqhiyya) in sharīʿa, first of which is the presumption of innocence or non-liability (al-aṣl barāʾat al-dhimma).[58] In criminal law this means that no one is required to prove their innocence, as they are presumed innocent until the judiciary rules otherwise. This maxim is rooted in one of fiqh’s universal canons (qawāʿid kulliyya), the more expansive maxim that certainty is not superseded by doubt (al-yaqīn lā yazūl bi-l-shakk), establishing the primacy of certainty in all aspects of Islamic law.[59] Hence, sharīʿa places the burden of proof on the plaintiff (as he is the one claiming to the contrary of the original presumption), while the defendant takes an oath of denial (al-bayyina ʿalā al-muddaʿī wa-l-yamīn ʿalā man ankar).[60] The original innocence presumption (al-barāʾa al-aṣliyya) is also linked to the established maxim of avoiding the imposition of ḥudūd penalties in cases of doubt or ambiguity (idraʾū al-ḥudūd bi-l-shubahāt).[61] Because innocence is presumed, doubt should favor the accused, as the opposing party has failed to satisfy the burden of proof. The maxim idraʾū al-ḥudūd bi-l-shubahāt centers on the term shubha (doubt or ambiguity). This word is key to the now-abolished Saudi precedent of al-ḥukm bi-l-shubha (conviction based on doubt).
The different madhāhib of fiqh have diverse evaluations of shubha and its corresponding impact.[62] The principal developmental accounts of shubha in fiqh by the Ḥanafī and the Shāfiʿī schools divide shubha into shubha fī al-fiʿl (legal doubt/mistake of law), shubha fī al-maḥall (factual doubt/mistake of fact), shubha fī al-ʿaqd (contractual doubt) or shubha fī al-fāʿil (mistake of law), shubha fī al-maḥall (mistake of fact), and shubha fī al-jiha/al-ṭarīq (ambiguity due to juristic difference).[63] However, the precedent of al-ḥukm bi-l-shubha concern a type of shubha that, albeit known in fiqh, is not always explicitly stated, which is shubha fī al-ithbāt/al-dalīl, doubt on evidentiary and procedural rules of proving ḥudūd.[64] Failure to meet the evidentiary burdens of ḥudūd create a measure of uncertainty about whether the criminal elements have been established,[65] and thus, shubha fī al-ithbāt is conventionally held as sufficient grounds for acquittal.[66]
The now-abolished precedent al-ḥukm bi-l-shubha, developed by the Saudi judiciary, allowed imposing criminal sanctions upon charged persons without meeting the prescribed evidence threshold. For example, a person may be charged with an offense, often a ḥudūd offense, and if the public prosecutor fails to prove the case beyond a reasonable doubt in court, this should be enough for an acquittal. However, according to Saudi precedent, some judges may consider the prosecutor’s evidence to constitute a shubha (doubt) or tuhma qawiyya (strong accusation), which the judiciary believes justifies a criminal penalty.[67] In other words, the prosecutor’s efforts would have raised enough shubha against the accused to justify a non-acquittal; however, as the court cannot impose the penalty for the charged offense, it imposes a discretionary penalty under taʿzīr. Hence, this precedent became known as al-ḥukm bi-l-shubha (ruling based on doubt), as judges used doubt—ordinarily the grounds for acquittal—as the foundation for criminal liability.
State-edited collections of judgments offer numerous examples of al-ḥukm bi-l-shubha. Cases involving alcohol and drug use illustrate how the public prosecutor may fail to prove their case, yet the defendant is still sentenced. For example, one defendant was charged with using hashish and possessing 170 amphetamine tablets intended for sale.[68] He confessed to hashish use and received 80 lashes, but he claimed the amphetamines were for his personal use only, a point the prosecutor could not refute.[69] Despite acknowledging that the prosecutor failed to prove intent to sell, the judge held that the accusation (tuhma/shubha)[70] was strong enough to impose a one-year prison sentence and 150 lashes penalty on the defendant.[71] A review of judgment collections reveals that the inability or failure to prove drug possession for trade has not deterred many courts from imposing penalties based on shubha and tuhma.[72] In another case, a man was charged with alcohol consumption based solely on a written statement from a member of the Committee for the Promotion of Virtue and Prevention of Vice,[73] who claimed that the defendant smelled of alcohol.[74] The defendant contested this throughout the investigation and trial.[75] While the judge noted that the provided evidence did not meet the threshold for a ḥudūd offense, the tuhma allowed for a sentence of 70 lashes.[76]
Similarly, the precedent of al-ḥukm bi-l-shubha had presence in the domain of sexual offenses.[77] In one instance, a male foreign national was charged with "imitating women" for allegedly wearing tight clothing and presenting a more feminine look, along with personal photos found on his phone.[78] Despite his dispute of the charges and claims of duress in his confessions,[79] the judge ruled that "shubha surrounded the defendant," resulting in a 30-lash sentence.[80] In another case, a foreign national defendant faced sexual harassment charges for allegedly asking a female customer to let him touch her hand and uncover her face.[81] He denied all claims, arguing that earlier confessions, the sole evidence, were coerced.[82] The judge recognized the lack of proof and acknowledged that the defendant had no criminal record; nevertheless, he deemed the tuhma sufficient for a one-month prison sentence and 50 lashes.[83] These cases illustrate how the Saudi judiciary came close at one point in exceeding the limits of sharīʿa by imposing penalties based on suspicion and wrongful convictions.
Judicial decisions that followed the precedent of al-ḥukm bi-l-shubha frequently cited Ibn Nujaym al-Ḥanafī (d. 970/1563) and Ibn Taymiyya, noting that the two jurists permitted imposing punishments on the basis of substantial doubt or accusation.[84] With respect to Ibn Nujaym, many judges took the following excerpt as a rationale for al-ḥukm bi-l-shubha: "Taʿzīr may be established despite shubha; thus, they [jurists] have stated: [Taʿzīr] may be proven with that which is sufficient to prove financial transactions. Further, swearing an oath or abstaining from it are considered valid proofs in its proceedings."[85]
According to settled Saudi practice before the royal abolition, a ḥudūd offense may be avoided due to shubha, albeit the same shubha is sufficient for imposing a taʿzīr penalty.[86] The flaw in this analysis is that shubha in the context of al-ḥukm bi-l-shubha pertains to proving the criminal elements of the offense, particularly in adherence to the specified evidentiary rules. Thus, if shubha prevents the establishment of the offense—whether it is ḥudūd or taʿzīr—acquittal is the proper outcome.
Ibn Nujaym’s cited position is in another context that does not support al-ḥukm bi-l-shubha. Ibn Nujaym clarified that shubha does not prevent conviction in taʿzīr offenses as it does with the avoidance of imposing ḥudūd.[87] To support his argument, he mentioned that some Ḥanafī jurists have analogized the evidentiary standards for taʿzīr to those of financial disputes, stating that shubha does not affect the proof needed for either.[88] This analogy shows that the higher evidentiary threshold of ḥudūd should not apply to taʿzīr offenses.[89] Therefore, Ibn Nujaym never suggested that a judge could base a ruling on shubha or tuhma in either ḥudūd or taʿzīr.
With regard to Ibn Taymiyya, although he did not fully distinguish between shubha and tuhma, some Saudi scholars believe that the two are connected and involved in supporting al-ḥukm bi-l-shubha. As some scholars have noted, both shubha and tuhma involve ambiguity, but in tuhma, the doubt concerns the person accused, while in shubha, it relates to the offense itself or the circumstances, including uncertainty about other actors.[90] Because tuhma raises serious doubt about whether the accused committed the offense, it can be seen as a type of shubha that falls under the maxim of ḥudūd avoidance.[91] From this standpoint, if tuhma is regarded as a type of shubha with the same effect in ḥudūd avoidance, it can likewise serve as a basis for conviction, as shubha does in the precedent of al-ḥukm bi-l-shubha.
Another aspect to this rationale is Ibn Taymiyya’s position on ahl al-tuhma (suspicious people). Ibn Taymiyya divided those charged with criminal offenses into three categories[92]:
1. Those with an honorable reputation, unlikely to have committed the offense, should not be punished until the crime is judicially proven.
2. Those with a blemished record, likely to have committed the offense (ahl al-tuhma), may be imprisoned and subjected to light punishment, as leniency could allow them to escape justice.[93]
3. Those with an unknown reputation should be detained until their status is clarified or innocence is proven.
This suggests that while Ibn Taymiyya endorsed the controversial practice of striking detainees under investigation, he did not alter the fundamental principle that a fully proven conviction is required to impose a criminal penalty. His stance specifically centered on how to handle ahl al-tuhma during the accusation phase. Ibn Qayyim al-Jawziyya (d. 751/1350), a disciple of Ibn Taymiyya, supported his teacher’s view and cited caliphal precedents, such as ʿUmar b. al-Khaṭṭāb (d. 23/644) burning a wine shop.[94] However, his examples show that those punished were proven to have committed offenses, as in the case of the wine shop as ʿUmar did not burn the shop due to hearsay or mere accusation; it was a well-known wine shop.[95]
In other contexts, however, Ibn Qayyim al-Jawziyya was explicit in opposing the imposition of punishments based on shubha. For instance, when investigating willful defaulters, he argued that they should not be imprisoned, as imprisonment constitutes a form of punishment that is only legitimate when its cause is clearly verified.[96] He framed the issue within the boundaries of ḥudūd, which should not be enforced in cases of shubha; instead, he contended, a judge should exercise restraint.[97] He further likened imprisonment to flogging, noting that both punishments are permissible only when the cause is certain.[98] In cases of shubha, he asserted, refraining from punishment aligns more closely with sharīʿa principles than imposing it based on doubt.[99] Therefore, in essence, both Ibn Taymiyya and Ibn Qayyim al-Jawziyya aimed to close loopholes in criminal proceedings related to tuhma and shubha, not to permit the utilization of doubt as a basis for criminal liability.[100]
In light of this, in al-ḥukm bi-l-shubha, judges recognized that the threshold for evidence was not satisfied but chose to sanction the accused individuals nonetheless, due to the strong doubts surrounding them or allegations made against them. Consequently, this precedent not only conflicts with Islamic criminal rules but also undermines the tenets of justice. Once an individual is charged with an offense, they are regarded as a member of ahl al-tuhma, and any evidence presented against them is considered sufficient shubha, thereby warranting punishment.
2. Analysis of Royal Edict No. 56485 (2018) on al-Ḥukm bi-l-Shubha
The edict’s timeline shows that in 2014, the Minister of Interior called for reforming the judicial precedent due to execution challenges faced by his Ministry. He sent a telegram requesting a resolution on the matter,[101] which was then forwarded to the Chairman of the Supreme Judicial Council, who referred the matter to the Supreme Court.[102] The General Assembly of the Supreme Court reviewed the matter, issuing a unanimous decision in 2015 that:
The criminal penalty that requires a proven conviction is one for which the punishment is prescribed by sharīʿa or statute. Beyond that, a proven conviction is not required, and it is sufficient to impose a punishment based on considerable evidence and indicators for issuing a discretionary punishment (taʿzīr) according to the judge’s discretion.[103]
The decision seems crafted to let judges maintain the problematic precedent while maintaining the appearance of resolving the issue. Hence, the decision was considered unsatisfactory and another telegram was sent by the Minister.[104] The Royal Court received the telegram and issued a noble edict tasking a government committee with reviewing the issue.[105] The committee was led by the Bureau of Experts at the Council of Ministers and included representatives from the Ministry of Justice, the Supreme Judicial Council, the Board of Grievances, and others deemed necessary. After review, the committee recommended that the Supreme Court revise its aforementioned decision (No. M/21, 2015).[106] The Royal Court agreed and referred the matter back to the Supreme Court,[107] which reexamined it in 2017 and decided by a majority that:
When imposing a criminal penalty for committing a prohibited act, it is necessary to state the proof of the defendant’s conviction for the offense that warrants this penalty. If the judge does not have full evidence but a credible indication arises that convinces him of the necessity to impose a discretionary punishment (taʿzīr), it is required to state the conviction of the defendant for this punishment.[108]
This second decision, like the first, seems to have failed to address the problematic precedent. As in the first decision, the Court did not discuss the juristic maxims or statutory rules that the precedent violated and assumed judges would not abuse their discretionary power, showing no concern for this in its holding. Furthermore, the Court argued in other parts of the decision that not punishing defendants without a full conviction would allow criminals to evade justice.[109] The Court’s decision was delivered to the Royal Court in 2017.[110] Subsequently, the Bureau of Experts received instructions from the Royal Court regarding the matter and issued a memorandum deeming the Court’s decision unsatisfactory,[111] leading to the issuance of the following edict[112]:
In the Name of God, the Most Gracious, the Most Merciful
No. 56485
Date: 5/11/1439 [corresp. July 18, 2018]
The Honorable Acting Chairman of the Supreme Judicial Council:
Peace be upon you, as well as the mercy of God and His blessings:
We have reviewed the letter of the Honorable Chief Justice of the Supreme Court No. 3164771, dated 22/8/1438 [May 18, 2017];
And the telegram of His Excellency the President of the Bureau of Experts at the Council of Ministers No. 1830, dated 29/5/1439 [Feb. 15, 2018];
Concerning what has been observed in some judicial rulings, where a strong accusation (tuhma) or suspicion (shubha) is directed against the defendants and a criminal penalty is imposed on them without stipulating proof of conviction for committing the [prohibited] act;
And the issuance of Resolution No. 32 by the General Assembly of the Supreme Court by majority vote, dated 14/8/1438 [May 10, 2017], on this issue;
And considering what was recommended by the attendees at the Bureau of Experts, according to memorandum No. 673, dated 29/5/1439 [Feb. 15, 2018];
And whereas Article Three of the Statute of Criminal Procedures states that no criminal penalty may be imposed on any person except after establishing their conviction for a sharīʿa or statutorily prohibited act, following a trial conducted in accordance with sharīʿa provisions;
Therefore, behold that the Supreme Judicial Council shall effectuate whatever measures it deems appropriate regarding the judges’ adherence to the aforementioned Article Three of the Statute of Criminal Procedures.
Thus, fulfill what is necessary pursuant to it.
[Signature]
Salman b. Abdulaziz Al Saud
The edict starts with a set of citations that provides a timeline for the sequence of events. It instructs the Acting Chairman of the Supreme Judicial Council—who is also the Minister of Justice—to take necessary measures to abolish al-ḥukm bi-l-shubha. It does not address the Supreme Court or seek its approval and remains unclear as to whether the Supreme Judicial Council ranks higher than the Supreme Court. The Council is an administrative body without jurisdiction over judicial rulings, while the Supreme Court reviews decisions and issues binding rulings for lower courts.[113] Judges follow the Council for administrative guidelines, but it is uncertain whether they view its resolutions on judicial precedents as fully authoritative. Despite the hierarchy, the edict suggests that the King believed the Council had the authority to instruct the Supreme Court to issue the proclaimed rules. Royal advisors may have felt it more appropriate for the monarch to address the Council, given the Supreme Court’s lack of willingness to change its position on two previous occasions.
The edict cited only Article 3 as its rationale, as the Supreme Court had deliberately overlooked it in its decisions. Article 3 of the Statute of Criminal Procedures explicitly forbids judges from imposing criminal liability without a fully proven conviction. This rule is not only legitimate and precise but also consistent with sharīʿa, leaving no room for opposition. Consequently, the edict refrained from invoking broader doctrines like siyāsa sharʿiyya or maṣlaḥa, as the statutory rule itself sufficed. The edict’s sole provision reiterates this rule and mandates judicial adherence to it, with the Supreme Judicial Council tasked with ensuring its implementation in light of the Supreme Court’s stance.
Approximately five months after the edict, the Supreme Judicial Council issued Resolution No. 40/11/4411 (2018), stating that courts cannot impose criminal penalties based on tuhma or shubha and must establish full conviction of the indicted person before determining criminal liability.[114] However, the resolution could potentially undermine the edict’s aim to protect individual rights and uphold the presumption of innocence.
First, the resolution invokes irrelevant rules like Article 158 of the Statute of Criminal Procedures, which states that courts are not bound by the offense characterization provided by the public prosecutor.[115] In other words, if the court finds the prosecutor’s classification incorrect, it has the authority to reclassify the offense, in coordination with the parties involved. While this article may raise its own concerns, it is irrelevant to the issue at hand; the edict and previous memorandums do not address the reclassification of offenses by judges. Thus, by citing this article, the resolution implicitly suggests that judges might consider reclassifying the offense to fit the available evidence, which could conflict with the edict’s goal of preventing convictions based on insufficient evidence.
Second, the resolution states that courts can base convictions on any type of proof, whether the offense is statutory or not.[116] This broad statement is problematic—while it includes a caveat for ḥudūd offenses, it overlooks the fact that courts are bound by specific evidentiary and procedural rules across all offenses, as outlined in fiqh and statutes. The statement risks misinforming judges and shifts the focus toward using all available evidence, even if its credibility is questionable. Therefore, the statement is unwarranted, as it overemphasizes using all types of evidence instead of focusing on upholding the presumption of innocence and maintaining proper evidence thresholds.
Third, the resolution fails to address the Supreme Court’s responsibility to review and remand rulings based on al-ḥukm bi-l-shubha. Instead, it tasks the General Secretary of the Council and the Judicial Inspection Administration with ensuring courts followed the stipulated rules and directed appellate courts to report judgments that violated those rules. However, the Supreme Judicial Council lacks the authority to overrule judicial decisions, as it is not a court of law. This omission overlooks the key issue: the Supreme Court’s resistance to ending al-ḥukm bi-l-shubha in two prior decisions.
These three points illustrate how the Supreme Judicial Council’s resolution could undermine the edict’s mission. However, based on personal observations and anecdotal evidence, the edict appears to have effectively abolished al-ḥukm bi-l-shubha, especially after support from the civil and legal community. Analyses of future collections of Saudi judicial rulings will determine the validity of this assessment.
Royal Edict No. 25634 (2019) on al-Taʿzīr bi-l-Jald
1. Discussion of the Precedent
Three ḥudūd offenses are punishable by flogging: illicit sexual intercourse by individuals who have never been married (100 lashes),[117] slanderous accusations of sexual impropriety (80 lashes),[118] and intoxicants consumption (either 40 or 80 lashes).[119] In addition to these prescribed punishments, jurists are in agreement that imposing flogging in taʿzīr punishments is permitted under sharīʿa.[120] However, there is no textual basis in the original sources of sharīʿa (the Qurʾān and Sunna) that obliges the state to utilize flogging in taʿzīr or prevents it from choosing not to use flogging for offenses other than ḥudūd.
There is a disagreement in fiqh concerning the extent of flogging in taʿzīr offenses. To synthesize a complex debate, juristic positions can be categorized into two major and minority groups.[121] The first minority group argued that flogging in taʿzīr should not exceed 10 lashes in any case, while the second minority contended that the number of lashes is unlimited and left to the judge’s discretion. The first majority group maintained that flogging in taʿzīr should not exceed the minimum amount specified for ḥudūd offenses, which is either 40 or 80 lashes, depending on the madhhab. In a similar yet more nuanced approach, the second majority group determined that the number of lashes for a taʿzīr offense should not surpass the fixed number established for a ḥudūd offense when both offenses fall under the same category. For example, a judge may punish illicit sexual activities between unmarried individuals, short of intercourse, as a taʿzīr offense, but the punishment cannot equal or exceed the 100 lashes prescribed for full illicit intercourse under ḥudūd, as both fall under the same category. Similarly, lashes for drug use (a taʿzīr offense) must not exceed those for wine drinking (a ḥudūd offense), as both offenses are in the same class. The literature of Islamic state governance (aḥkām sulṭāniyya) largely supports the majority positions, with influential scholars such as the Shāfiʿī jurist al-Juwaynī (d. 478/1085) extensively discussing how Mālikī jurists allowed rulers to impose harsh punishments by permitting taʿzīr penalties to exceed ḥudūd limits.[122]
The recognized Ḥanbalī references, relied upon by Saudi courts, conclude that it is not permissible to exceed 10 lashes in taʿzīr punishments, except in cases where someone consumes an intoxicant during the daytime in Ramadan or engages in intercourse with the slave woman of his wife or partner, based on some Prophetic narrations on these exceptions.[123]
The Saudi legislature has limited the scope of flogging, avoiding its broad application across criminal law. Only a few statutory provisions explicitly prescribe flogging as a punishment, with the maximum set at 50 lashes.[124] The majority of criminal statutes favor financial penalties and imprisonment. Flogging is mainly reserved for ḥudūd and uncodified taʿzīr offenses, reflecting the legislature’s intent to restrict its use. However, the judiciary has taken a different stance, embracing flogging, particularly in uncodified taʿzīr where judges have wide discretion. Closer scrutiny reveals that Saudi judges frequently went beyond the majority of jurists’ opinions as they imposed a greater number of lashes then generally supported in fiqh.
To illustrate, in Saudi courts, taʿzīr punishments often exceeded the fixed limits of ḥudūd offenses, even when both offenses fell within the same category. For example, a young, unmarried man received a sentence of four months in prison and 140 lashes for meeting a girl in a café for a romantic date and possessing a phone with "pornographic images."[125] This decision exceeded the ḥudūd mandate, which prescribes 100 lashes for fornication, as both dating and illicit sex fall under the same category of sexual offenses. If this adult had been caught fornicating in the café, he would have received no more than 100 lashes; instead, he was punished with 140 lashes, in addition to imprisonment, for a date and inappropriate pictures. The judge justified this excess by stating that the offense occurred in Medina, Islam’s second holiest city, prompting him to increase the lashes.[126] This reasoning is fundamentally flawed, as even in ḥudūd cases, judges cannot exceed the prescribed limits regardless of location. In fact, the ḥudūd mandate was established in Medina, where the number of lashes was fixed, not increased because of the city’s sanctity.
In another case, a man was charged with causing a young woman’s disappearance and engaging in prohibited seclusion (khalwa muḥarrama) after sheltering her for a day.[127] The defendant stated that the young woman approached him at the restaurant where he worked at 3:00 a.m. to use his phone to call her family.[128] When she called, no one answered.[129] Afterward, she requested a ride, which he agreed to provide.[130] He took her to a house she specified, but when no one answered the door, she asked for a place to sleep.[131] Hesitantly, he brought her to his cousin’s empty rest house, gave her a phone, and left.[132] Later that day, she contacted him for a ride to the market, which he provided.[133]
Although the prosecutor did not dispute any of these facts, he accused the defendant of being alone with the young woman and contributing to her absence from her family, seeking a discretionary penalty.[134] The defendant expressed regret, stating that he would not have helped her had he known the consequences; he insisted that he acted with good intentions, did not stay with her at the rest house, and that nothing inappropriate occurred.[135] Nonetheless, he was sentenced to 11 months in prison and 90 lashes.[136] After reviewing the ruling, the appellate court’s majority opinion observed that the punishment was excessive, especially given the absence of prior offenses by the defendant.[137] They recommended that the judge verify the defendant’s good character and reconsider the case accordingly; however, the judge reaffirmed his judgment, which the appellate court eventually upheld.[138]
The inconsistencies in lash counts for taʿzīr offenses reveal troubling discrepancies that question the fairness of the penalties imposed. Notably, there are concerning cases where much more severe actions have received less harsh penalties in comparison to previous cases. For instance, for similar offenses of child molestation, one man received 70 lashes and one month in prison,[139] and another received 180 lashes and three months’ imprisonment.[140] Viewing these cases alongside past cases highlights a sharp contrast in determining the appropriate count of lashes. Furthermore, the unusual types of taʿzīr offenses that arise in Saudi courts contributed to the troubling discrepancies within Saudi jurisprudence. For instance, a butcher received 10 lashes and 10 days in prison for repeatedly keeping his shop open during prayer times,[141] while another man was given only 10 lashes for publicly breaking his fast during Ramadan without a valid excuse.[142] While acknowledging the unique circumstances of each case discussed, these examples underscore systemic issues that extend beyond isolated judicial opinions.
In the absence of clear guidelines or sentencing tables, it became standard practice in the Saudi legal system for judges to determine the number of lashes as they saw fit. As a result, penalties of hundreds or even thousands of lashes became commonplace,[143] prompting criticism from notable clerics.[144] Moreover, albeit still unresolved, the acceptance of capital punishment for taʿzīr offenses further complicates the legal landscape.[145] Therefore, the widespread imposition of arbitrary lash sentences revealed significant inconsistencies within the judicial system, highlighting the urgent need for royal intervention to effectively address the precedent of al-taʿzīr bi-l-jald.
2. Analysis of Royal Edict No. 25634 (2019) on al-Taʿzīr bi-l-Jald
It is uncertain how the issue of al-taʿzīr bi-l-jald came to the King’s attention. It may have arisen from direct appeals by citizens reporting judicial abuses of flogging in taʿzīr offenses or through national and international human rights reports.[146] However, the channel that raised this issue to the Royal Court seems to have conveyed genuine concern, prompting the issuance of the following edict[147]:
In reference to the Royal Edict No. 25634, Dated: 20/4/1441 [corresp. Dec. 18, 2019], stipulating that the General Assembly of the Supreme Court shall issue a judicial principle that abolishes the punishment of flogging in discretionary punishments of taʿzīr, deeming other penalties as satisfactory, and imposing this principle on courts to apply it without deviation under any circumstances.
In the edict, the King instructs the Chief Justice of the Supreme Court to issue a judicial principle via the General Assembly of the Supreme Court. The Statute of the Judiciary grants the General Assembly the authority to establish judicial principles concerning judicial matters.[148] Although the statute does not explicitly outline the functions of these principles or their binding nature, conventional legal practices in Saudi Arabia regard these principles as legally binding, provided royal edicts endorse them.[149]
While the King granted the Supreme Court the authority to issue the judicial principle, the royal edict did not allow for any discretion, as the Court was directly ordered to implement the royal commands. The instructions explicitly tasked the Supreme Court to issue the principle as directed and distribute it to the lower courts. Furthermore, the royal edict lacked detailed definitions of taʿzīr offenses, suggesting that the judiciary and the Royal Court share the same understanding of the issue’s juristic terms.
The case was different regarding the edict’s lack of sufficient reasoning and rationale, which risked potential pushback and inconsistencies in application, as various courts and officials relied on their interpretations rather than a unified understanding of the edict’s intent. This ambiguity generated skepticism among members of the General Assembly of the Supreme Court, as a debate emerged within the Supreme Court regarding the King’s edict. Ultimately, the General Assembly of the Supreme Court did not reach a unanimous decision affirming the royal edict. The issued judicial principle was endorsed by a majority of nine out of thirteen judges, with four dissenting.[150] The majority opinion rested on three key arguments: (a) flogging in taʿzīr offenses carries negative implications (although these were not specified); (b) punishments for taʿzīr offenses may vary according to the context of time and place; and (c) walī al-amr (i.e., the monarch) retains the authority to determine appropriate punishments for taʿzīr offenses.[151] The resolution did not address or include the perspectives of the minority; nevertheless, the resolution was enforced and all courts suspended al-taʿzīr bi-l-jald. With regard to the flogging prescribed in statutes, while the rules remain in place, anecdotal reports suggest that they will be abrogated soon.
Concerns persist that the inconsistencies observed in al-taʿzīr bi-l-jald may occur with the extensive use of incarceration and monetary fines. In response, the government has revitalized its draft statutory guidelines for alternative sanctions, which encompass community service, home confinement, vocational training, and enrollment in treatment or therapy programs, among other measures.[152] While these guidelines are publicly available, they remain under refinement and are anticipated to be incorporated in the upcoming criminal code, which is expected to establish clear standards for determining appropriate sentences, whether they involve fines or imprisonment.
Conclusion
This analysis of Saudi royal edicts regarding the application of ḥudūd in the courts of Saudi Arabia highlights several challenges that arise when traditional approaches to ḥudūd enforcement are adapted to contemporary Muslim states. Despite the high level of sharīʿa training among Saudi judges, the edicts reveal that expertise alone does not ensure the proper, equitable, or beneficial implementation of ḥudūd. Saudi judicial collections, despite the judges’ rigorous training, exhibit significant unresolved issues that point to deeper complexities within ḥudūd jurisprudence.
This highlights a crucial point: the assumption that ḥudūd rules and precedents are so delineated and immutable that they require no external oversight is becoming increasingly untenable. While Saudi judges adhered to authentic Islamic legal methodologies, the edicts demonstrated the presence of numerous gray areas that necessitate both jurisprudential refinement and royal intervention. The monarchy’s involvement, rather than undermining judicial authority or the validity of ḥudūd rules, has shown that non-judicial oversight can help address problematic precedents and foster a more precise implementation of sharīʿa.
Moreover, the edicts underscore the limitations of relying on shubha as a protective measure against the misapplication of ḥudūd. The juristic maxim of idraʾū al-ḥudūd bi-l-shubahāt on its face is no longer a sufficient safeguard against flawed rulings. Judicial aspects of shubha remain in need of further regulation, and, as seen in cases of al-ḥukm bi-l-shubha, even this maxim can create confusion in legal standards, thereby contributing to unpredictable outcomes. Furthermore, the royal edicts prompt a reassessment of the role of ḥudūd in curbing the expansion of discretionary taʿzīr punishments. Fiqh has not fully resolved this issue, and the leeway granted to Saudi judges to adopt minority opinions has led to the expansion of taʿzīr punishments beyond the boundaries of ḥudūd penalties. Therefore, it is no longer sufficient to claim that the application of ḥudūd alone serves as a bulwark against the overreach of taʿzīr.
In conclusion, the Saudi royal edicts reflect a nuanced, evolving approach to ḥudūd jurisprudence that recognizes the need for both judicial and royal interventions to achieve a more just and balanced application of Islamic law in modern contexts. This approach may also provide a model for other Muslim-majority states facing similar challenges. The royal edicts signal an emerging recognition that applying classical methodologies and precedents may yield unexpected outcomes, which, in turn, require special treatment. Further developments in the Saudi legal system are anticipated, particularly as the government drafts its comprehensive criminal code, drawing upon expertise from diverse legal traditions. In this regard, Saudi Arabia’s experience suggests that engaging in thoughtful examination of traditional practices and their applicability to contemporary contexts can foster an authentically informed and contextually grounded application of Islamic law, offering insights that may resonate beyond the Saudi context and contribute to broader jurisprudential discussions in the Muslim world.