All praise is due to Allah, the Lord of the worlds, and peace and blessings be upon the Master of the first and the last, Muhammad, and upon his family and companions, and those who follow them in righteousness, walking in their straight path.
And after: Based on the Order of His Majesty the King, may Allah grant him success, to consider the matter by the Council of Senior Scholars regarding the permissibility of documenting the preferred opinions of the jurists to obligate the judges to act accordingly. Before delving into the core of the research and determining what is the truth that is testified by the principles of Sharia and upon which the Predecessors, may Allah have mercy on them, acted, we say:
First: It is undoubtedly clear to every knowledgeable person that the Imam of the Muslims, may Allah grant him success and establish him upon the truth and support him with it, had no goal in this matter except for goodness and a keen desire to bring about benefits and increase them, and to avert evils and reduce them. When it reached him, may Allah protect him, that some judges were issuing judgments that drew attention and called for investigation due to the issuance of rulings that some people might think are contradictory, even though their cases are similar, and in reality, they are not, as it may lead to accusations against the judges of following whims, or to charge them with shortcomings in applying the rulings of Sharia on the cases brought before them. This might be due to the lack of a book with a single opinion that judges could rule by and from which people could learn the rulings of transactions; so they could reconcile them with their actions when undertaking any work, so that they do not fall into what exposes them to judgment against them when a legal dispute arises. This may also lead some people to evade bringing their cases to the Sharia courts in the Kingdom and to take them to courts in foreign countries. For this reason, and out of His Majesty the King's concern, may Allah grant him success, for the preservation of Sharia and the continuity of its rulings among the people, he ordered, may Allah protect him, to present the subject of the aforementioned documentation to the Council of Senior Scholars; to clarify the ruling of Sharia on its permissibility or otherwise.
Second: It is good to mention something of the blessings that Allah has bestowed upon this country as a way of speaking of the blessing of Allah that has enveloped us. We say: It is not hidden from anyone knowledgeable what our country was like before the establishment of this blessed state, with chaos and disorder, rampant thievery, escalating fear, and entrenched division, until Allah prepared the descendant of the house of glory and nobility, King Abdulaziz, may Allah have mercy on him, who gathered its scattered parts, united its divided ranks, and built its entity on the foundation of the methodology of the righteous predecessors, which he inherited from his noble ancestors, the protectors of the Salafi call and the builders of its fortresses in this land. This call is the one that was advocated by Sheikh al-Islam Muhammad ibn Abdul Wahhab, may Allah have mercy on him, so security was established in the lands of the peninsula after it had been lost, justice spread among the people, and they felt secure for themselves and their wealth. They connected with the outside world widely, and the state of the country became known to all other nations, and its people have been dealing with them for a long time, and the country has been in continuous progress, and all praise is due to Allah. Its adherence to the methodology of the judiciary as it was during the time of the righteous predecessors, may Allah have mercy on them, and the understanding of its judicial system among all the civilized nations of the earth has not harmed it. Security became so well-known that it became a model and a source of wonder for every writer, despite the vastness of the country and the lack of education among the majority of its people. This is only by the grace of Allah, and then by the adherence of this state to the Sharia of Islam and its following the path of the predecessors of the nation who spread Islam, governed the people with justice, and ruled them by Sharia, delegating to their judges the authority to rule based on what they understood from the Book of Allah, the Exalted, and the Sunnah of His Messenger, peace be upon him, and what the scholars derived from it. Thus, their conditions improved, and their affairs became upright, and the latter part of this nation will not be rectified except by what rectified its first part. The integrity of the judiciary in our country has become well-known, and all praise is due to Allah, as well as its justice, simplicity, alignment with human nature, and its adherence to the true interests, until it became known to both supporters and opponents. In light of this great blessing that Allah has bestowed upon us by adhering to it when most have abandoned it, we can only thank Him, the Most High, and ask Him to keep us steadfast on the truth we are upon and grant us assistance and success.
Third: The Council considered the matter and found that the motives for reform are present, and that there must be a solution to the problem and a remedy for what is feared from its consequences. However, the majority of the Council believes: that it is not permissible to document the rulings in the proposed manner to obligate the judges to rule accordingly; because it is not a path to reform, nor does it solve the problem, nor does it eliminate the disagreement in rulings, or the suspicions of some people regarding the judges as long as there is a ruling in place. The accusation against the judge in his ruling has not been spared from anyone, even the best of creation, peace be upon him, for some people said to him: Be just, for you have not been just, and in another narration: This is a division that was not intended for the sake of Allah.
Nevertheless, the intended documentation leads to undesirable consequences for several reasons:
1. Obliging judges to rule according to what is chosen for them, which is called the preferred opinion by those who chose it, necessitates that the judge rules contrary to what he believes, even in some matters, which is not permissible and contradicts what was practiced during the time of the Prophet, peace be upon him, and his rightly guided successors, and after them the righteous predecessors. This causes a deviation from their path. This idea has previously been found during the Abbasid Caliphate, and Abu Ja'far al-Mansur presented it to Imam Malik, may Allah be pleased with him, who rejected it and clarified its invalidity. It is a rejected idea among the predecessors, and there is no good in anything that was considered during the time of the predecessors as innovations.
2. Obliging judges to rule according to what is claimed to be the preferred opinion restricts them and separates them in their judgments from the Book and the Sunnah and from the Islamic jurisprudential heritage, and it disables this wealth, which is the best heritage we inherited from the righteous predecessors. It also constitutes a clear violation of what is indicated by the Book of Allah, the Exalted, regarding the necessity of referring to the Book and the Sunnah in matters of disagreement in rulings. Not referring to them in case of disagreement contradicts faith in Allah, the Exalted. He said: (And if you disagree in anything, refer it to Allah and the Messenger if you believe in Allah and the Last Day).
3. The obligation to document leads to the same result that those who preceded us in this experience from the later Islamic countries reached. They tried this codification and obliged judges to work with it, but it did not bring them any good, nor did it reduce the differences among judges in rulings. Rather, it led them to rule by positive laws in matters other than family matters and some penalties; thus, to close the door to corruption, to maintain adherence to the Sharia of Allah, and to keep the banner of our Islamic nation visible. We must think of another path for reform that is free from dire consequences.
4. Creating a book that includes a single opinion that is preferred in the view of those who chose it, with unified numbers and a series of articles, cannot eliminate disagreement and establish consensus in rulings in all cases due to the differences among judges in their perceptions and in understanding the scientific materials, and the extent to which they apply to the cases brought before them, as well as the differing circumstances of the cases and the signs surrounding them. People have disagreed over the meanings of some legal texts from the Book and the Sunnah, despite their clarity and obviousness, and the knowledge of their sources is not like the knowledge of those who choose the preferred opinion intended.
5. Civil courts in countries that rule by positive laws have documented their laws in the form of unified articles with numbered series, yet the rulings of their judges have differed, and contradictions and errors have occurred in some of them. Some rulings have been appealed, and they were overturned in appellate courts. Thus, that organization and obligation did not prevent errors and contradictions, nor accusations against judges, and the overturning of rulings as long as judges differ in thoughts and understandings, foresight, and the ability to apply rulings to cases and facts.
6. It is not suitable to eliminate the negative effects that resulted from obliging judges to rule according to what is documented for them by giving them the right to raise what contradicts their beliefs to their reference, as this leads to reliance, the deferral of cases, evasion of responsibility, hindrance of transactions, and their accumulation, and opens the door to fraud to evade some cases for some reason. There is no shortage of those who want to find in the opposing views to what is documented what supports their opinion, as preference is a relative matter that is disputed, and every opinion has its direction.
7. Reality shows that the knowledge of the litigants regarding what the judge refers to in detail is not necessary, nor is it a condition for the acceptance of the judge's ruling or its enforcement, neither from the perspective of Sharia nor from the perspective of law. The Prophet, peace be upon him, and his companions used to judge among people in disputes, and jurisprudence was not documented, and many of the disputants did not memorize the entire Quran or much of the Sunnah. They only knew in general that the judge would rule in the cases brought to him based on what he understood from the Book and the Sunnah. Likewise, in countries that rule by positive laws, the vast majority do not know what the judges refer to from the laws; therefore, they hire attorneys to plead for them in their cases. Thus, documenting rulings in the proposed manner to align litigants' actions with them is not necessary. Nevertheless, the legal rulings are documented, and whoever wants them can access and know them. Even with this knowledge, one cannot be assured that the judge will not disagree with him in understanding and applying them to his case, whether he refers to Sharia or to positive law; because if the rulings were documented, they would not mention all the details of the cases, but each judge would strive to apply the text to the case brought before him.
In what has been mentioned above and other negative effects that arise from obliging judges to rule according to what is chosen for them, it is necessary to seek another way to address the situation and solve the problem, which is as follows:
1. Preparing judges, caring for them, scientifically qualifying them, and practically training them in judicial work, even through study and training courses for those who need it among those in active service.
2. Reducing courts and concentrating them in cities and regional capitals, and it suffices to appoint educated individuals in villages to manage the affairs of mosques, marriage contracts, preaching and guidance, writing documents, and receiving the delegations of judges, and so on. This is facilitated by the ease of transportation today and the existence of facilities in cities where strangers can rest and benefit, even if they stay for days. This makes it easier for judges in cities to meet to study and digest cases, prevents litigation in trivial matters, and encourages reconciliation among people, which is more beneficial than prolonging disputes until the cases are resolved.
3. Choosing judges wisely, considering their strength in knowledge, soundness of mind, patience, foresight, honesty, and integrity, and distancing them from any suspicion, among other qualities that should be present in a judge. This will facilitate the selection process by limiting the concentration of courts in cities, as previously mentioned.
4. Forming a committee of scholars to discuss important judicial issues that may be ambiguous in judgment for some judges, to clarify the ruling with evidence and illustrate its application with examples, especially in cases that have occurred in our time. This is not to obligate judges to what the research concludes, but to assist them in performing their duties, and to serve as a model for them in studying cases and solving their problems, and being precise in applying rulings in them. Thus, the gap of disagreement will narrow, and the desired interest will be achieved. As for the elevation of the root of disagreement, there is no way to it, even if the scientific reference for judges were unified by choosing a single opinion and obligating judges to rule accordingly; for the reasons previously stated. Nevertheless, the government, may Allah grant it success, has made commendable efforts, establishing courts of cassation to study the rulings issued by the courts and guide judges in what they see as shortcomings, and has established a higher judicial authority to scrutinize the rulings that cause disagreement among judges and the cassation authorities, all of which is out of the concern of the ruler, may Allah grant him success, for the integrity of the conscience, the comfort of the people, and the delivery of rights to their owners.
5. Disagreement in rulings has existed during the time of the rightly guided caliphs and the righteous predecessors, even from the same judge in two similar cases, where he saw in the second what he did not see in the first, and he ruled accordingly, without overturning his previous ruling. This did not prompt any thought of such proposed documentation, nor obliging judges to rule by a single opinion, as they were more concerned than us with preserving the religion and its reputation and the reputation of Muslims as much as they could. This disagreement should not be a source of suspicion and accusation against the judge. The principle for anyone chosen for the judiciary is that he should be knowledgeable and trustworthy at the level of responsibility.
6. From the above, it is clear that the remedy for the problem lies outside the aforementioned documentation, which does not guarantee its consequences, and its results are uncertain, leading to the separation of people from the sources of their Sharia and the jurisprudential wealth of their ancestors, as previously stated. Therefore, it is necessary to follow the correct path with safe outcomes, which has been the foundation of the Islamic nation and its conditions in its past centuries.
We ask Allah to preserve our nation’s religion, complete for us the blessing of security and stability, support the Imam of the Muslims, guide him, assist him with righteous counsel, and prolong his life in good deeds. Indeed, He is All-Hearing, Responsive. And peace and blessings be upon our Prophet Muhammad, his family, and his companions.