The Public and Private in Saudi Arabia: Restrictions on the Powers of Committees for Ordering the Good and Forbidding the Evil

IN this article I seek to shed light on how Islamic law controls invasions by the state into what we in the United States would call the “private sphere.” I examine two disparate bodies of law for what they may say on this topic. The first is the classical Islamic public law doctrine, particularly as stated in the still authoritative work in that field by Mawardi, a Shafi`i (d. 1058 C.E.).1 The second is comprised of the contemporary laws and practices of Saudi Arabia, a state that aspires to adhere literally to classical Islamic law among and despite the drastically changed circumstances of today. In both cases I focus on the function of the muhtasib, or the state official charged by Islamic constitutional law to carry out the Qur’anic injunction of “ordering the good and forbidding the evil” (al-amr bi-al-màruf wa-al-nahy `an al-munkar). The reasons to focus on the muhtasib are obvious: an official religious censor, a morals policeman, seems the apotheosis of state invasion of the private realm. Indeed, I focus only on the role of the muhtasib as censor of public morals, and ignore certain other more specific functions he assumed under the general head of “ordering the SOCIAL RESEARCH, Vol. 70, No. 3 (Fall 2003) The Public and Private in Saudi Arabia: Restrictions on the Powers of Committees for Ordering the Good and Forbidding the Evil FRANK E. VOGEL good,” chiefly that of inspector of weights, measures, quality, and trading practices in the markets. A few preliminaries are necessary to introduce us to some of the legal conceptions and institutions by which Islamic law is applied. These preliminaries will also reveal to us that the protections of the private sphere under Islamic law do not correspond well at all to U.S. notions—for example, sins that in the United States are considered purely a matter of individual concern, or even a human right to commit, can under Islamic law be matters of vital state concern, and even crimes deserving of prosecution and punishment. As a first preliminary, we should note that in analyzing Islamic constitutional law and practice, it is generally useful to think of the Islamic legal system as consisting of two partly overlapping legal subsystems, each with its own distinct forms of legal authority or legitimacy, legislation, and application. (This distinction is particularly useful in Saudi Arabia, where this dualism in the legal system is very prominent.) Useful labels for these two subsystems are: first, fiqh, meaning the body of law elaborated from the revealed texts of Islam by means of the function of interpretation (ijtihad) by qualified scholars (ulama); and second, siyasa, meaning the authority of the head of state or ruler to act in legal matters (including legislating) in order to achieve the public good consistently with the provisions of Sharia. Fiqh is law legislated and applied by religious-legal scholars, the ulama, largely independently from the state. It is a “jurists’ law.” Fiqh stems outward from the individual and his or her conscience. Its first concerns are the realm of what we call the “private,” governed by “private” law; that is, the laws of religious ritual, family, contract, property, and tort. Fiqh does have many provisions applying to public law, the state, and the collectivity as well, but these are also addressed to individuals, the state actors themselves. While in theory fiqh has a rule for every human act, this is often true only at the level of highly general norms; for a great many practical issues, fiqh provides no detailed rules at all. 750 SOCIAL RESEARCH Siyasa, which means literally “running things” or administration , is understood as a power that Sharia itself delegates to the ruler by which he creates and applies rules in areas not governed by fiqh in detail, and by which he establishes and regulates the means and mechanisms needed to implement or enforce both fiqh and siyasa rules. Coming from the head of state, siyasa addresses not the individual but the people or nation as a whole, and is concerned chiefly with the public sphere and with public law. In the formulation given to siyasa...