By Dominik Krell
1. Introduction
It might be difficult for us to imagine how criminal offenses could be prosecuted without the technical possibilities we take for granted today. DNA and blood tests are relatively recent inventions, made possible by the advances of modern science in the nineteenth and twentieth centuries. However, the law of evidence as established by the four major Sunni schools of law (madhāhib, s. madhhab) reflects the environment in which premodern jurists lived, where technical possibilities to produce evidence were limited.
Today, Saudi Arabia is one of the very few countries that apply Islamic evidence law in criminal procedures and hence provides an interesting case study for understanding how changes in forensic technology affect the application of Islamic criminal law.
Two areas of criminal law are especially illustrative of the transformation of evidentiary standards: the consumption of alcohol and illicit sexual relations (zinā). In these areas, as I will show in this essay, the adoption of modern forensic methods has redefined the boundaries between the public and the private. It has changed Islamic criminal law by extending its scope into spaces that were traditionally beyond its reach.
2. Criminal Law in the Saudi Legal System
Saudi Arabia remains one of the few countries in the Middle East without a comprehensive criminal code. Although the Saudi government has codified most other areas of Islamic law, especially family and private law, in recent years, the codification of criminal law is still in progress. Crown Prince Muhammad bin Salman announced a comprehensive code of Islamic criminal law in 2021 but, as of late 2025, the code has yet to be published.[1]
When applying uncodified law, Saudi judges are not bound by a single school of jurisprudence, although the Ḥanbalī school remains a key reference point. Judges instead draw upon the full range of the Sunni legal tradition.[2]
In 2022, the government introduced the Code of Evidence (Niẓām al-Ithbāt), which codified the Islamic rules of evidence.[3] However, Article 1 excludes criminal law from its scope.[4] Consequently, evidentiary rules in Saudi criminal courts continue to rely on books of fiqh (Islamic law) and on the independent legal reasoning (ijtihād) of judges trained in Islamic law.
3. Evidentiary Principles in Premodern Islamic Jurisprudence
Generally speaking, Islamic criminal law recognizes three types of criminal punishments: ḥudūd punishments (s. ḥadd, punishments for transgressions against God's rights), taʿzīr (discretionary punishments for other offenses), and qiṣāṣ (retaliation in cases of injury).[5] I will focus primarily on ḥudūd and taʿzīr punishments, as these are most relevant to the debate on evidence.
In premodern Islamic jurisprudence, the jurists set the evidentiary threshold for imposing a ḥadd punishment extremely high.[6] Ḥadd crimes, which usually comprise theft (sariqa), illicit sexual intercourse (zinā), false accusation of zinā (qadhf), consumption of intoxicants (shurb khamr), brigandage (ḥirāba), and apostasy (ridda), could only be established through unambiguous proof.[7]
Within this premodern framework, confession (iqrār) and witness testimony, specifically that of adult, male, Muslim witnesses, were the gold standard.[8] The large majority of Muslim jurists regarded circumstantial evidence (qarīna) as unreliable in ḥadd offenses, particularly in matters concerning the private sphere.[9] This effectively restricted Islamic criminal law to the public domain and limited the application of ḥadd punishments to acts that visibly violated public order or morality, although exceptions can be found throughout Islamic history.[10]
4. The Role of Circumstantial and Forensic Evidence in Saudi Court Practice
Let me now turn to contemporary Saudi Arabia, where evidence is the primary concern of Saudi judges in their daily work at court, particularly in criminal cases.[11] My analysis is based on two major collections of court decisions issued by the Saudi Ministry of Justice and published in multiple volumes in 2015 and 2017. Both collections contain hundreds of decisions from the Hijrī years 1434 (2012–2013) and 1435 (2013–2014).[12]
Typically, judges begin their handling of a case by assessing the evidence presented by both the public prosecutor and the defendant to determine whether the strict conditions for ḥadd punishments have been met. In line with the principle of Islamic jurisprudence that a ḥadd punishment must be averted in cases of doubt (shubha),[13] judges generally reject the ḥadd punishment and instead impose taʿzīr, either lashes or imprisonment whenever there is the slightest uncertainty regarding the defendant's responsibility.
4.1. Alcohol Consumption and the Use of Blood Tests and Breathalysers
Muslim jurists have debated for centuries whether the mere smell of alcohol can serve as sufficient proof to impose a ḥadd punishment. The majority of premodern jurists, including those of the Ḥanbalī school, rejected this view.[14] They argued that the smell of alcohol alone could never amount to conclusive proof.[15]
Muḥammad b. Ibrāhīm Āl al-Shaykh (d. 1969), the leading authority in the Saudi judiciary in the mid-twentieth century whose opinions continue to be cited today, took a different stance. In a 1955 fatwā (legal responsum), he argued that the ḥadd punishment could be imposed solely on the basis of the smell of alcohol.[16] He justified this position both on textual grounds and in light of what he described as the prevailing moral laxity in the Kingdom. In the fatwā, he wrote:
The [appeal] court president's[17] view is more fitting and preponderant (rājiḥ) according to the evidence [in the revelation] (dalīl). Moreover, even if the president's opinion were not preponderant, applying and relying on it in practice would still be preferable, given the current situation in which ignorance predominates, souls rush into sin, and people treat those sins lightly.[18]
Later Saudi jurists continued upholding this view but made some important restrictions. In 1977, the Council of Senior Scholars (Hayʾat Kibār al-ʿUlamāʾ) issued a decision (No. 53), in which they allowed smell to serve as proof for a ḥadd punishment when accompanied by additional circumstantial evidence, such as possession of alcohol.[19] However, the Council's decision made no reference to fiqh texts. In 2003, the Council of Senior Scholars took a further step by recognizing a positive blood test as valid proof for a ḥadd punishment in another decision (No. 213).[20]
The published court decisions show that Saudi police regularly, but not always, employ blood tests, and other forms of forensic analysis to detect alcohol consumption and possession.[21] Forensic technology now significantly shapes court practice. When police reports rely only on observation or smell, judges generally impose a taʿzīr punishment, which varies.[22] However, when additional circumstantial evidence exists or when the accused confesses (often in light of the presented evidence), courts apply the ḥadd punishment of eighty lashes.[23]
4.2. Illicit Sexual Relations and Modern Forensic Evidence
Modern forensic evidence has also transformed court decisions involving illicit sexual relations (zinā).[24] According to the majority opinion in Islamic jurisprudence, the ḥadd punishment for an unmarried (ghayr muḥṣin) person is one hundred lashes, accompanied by banishment for one year if the judge considers the person a virgin (in the legal sense).[25] Technically, the ḥadd punishment for a married person is death. However, such cases seem to rarely reach Saudi courts, and I have found no published judgment in which a married person was sentenced to a ḥadd punishment for zinā.[26] For homosexual activities, the punishment in Saudi Arabia is death.[27]
The evidentiary standard for zinā in premodern Islamic law is exceptionally strict. A ḥadd punishment requires either a confession (iqrār) or the testimony of four male Muslim witnesses who have directly observed the sexual act itself, while circumstantial evidence is not admissable. Historically, this standard has made the implementation of the ḥadd punishment for zinā based on witness testimony very difficult. Ibn ʿUthaymīn (d. 2001), another famous twentieth-century Saudi scholar, claimed that the ḥadd punishment for zinā had never been proven through witnesses in Islamic history, but only through confession.[28]
Yet, as in the case of alcohol consumption, new forms of evidence production have reshaped judicial practice in Saudi Arabia. Medical examinations can now demonstrate that sexual intercourse has occurred. Chemical analyses of clothing can detect sperm traces, and DNA testing can establish biological links between individuals or between an individual and material found at a scene.[29]
Although the published court cases are written from the judges' perspective, they suggest that public prosecutors present forensic evidence to pressure the accused into confessing. Circumstantial material evidence, whether visual, biological, or digital, can narrow the scope for denial to the point where defendants appear to have little option but to confess to the alleged act.[30] In this sense, confessions have become the most significant form of proof in practice.
5. Conclusion
In premodern Islamic law, the ḥudūd punishments were constrained by the requirement of direct observation. Modern forms of evidence have blurred the boundary between the visible and the hidden by creating visibility where none previously existed. As a result, the reach of Islamic law into private life has expanded, and the line between the public and the private in Islamic legal thought has been redefined.
In Saudi Arabia, the broader consequence of this development is that ḥadd punishments, once largely symbolic, have become more enforceable in practice, while the scope of taʿzīr punishments has also widened.
Notes:
[1] Dominik Krell, Islamic Law in Saudi Arabia (Brill, 2025), Chapter 7.
[2] Krell, Islamic Law in Saudi Arabia, Chapter 2.
[3] Code of Evidence (Niẓām al-Ithbāt), Royal Decree no. M/43, 26 Ramaḍān 1443 AH (30 December 2021), Bureau of Experts at the Council of Ministers, https://laws.boe.gov.sa/BoeLaws/Laws/LawDetails/2716057c-c097-4bad-8e1e-ae1400c678d5.
[4] "The provisions of this code apply to civil and commercial acts (muʿāmalāt)," (Article 1, Code of Evidence).
[5] Silvia Tellenbach, "Islamic Criminal Law," in The Oxford Handbook of Criminal Law, ed. Markus D. Dubber and Tatjana Hörnle (Oxford University Press, 2014), 248–68, 251. Ḥadd punishment distinguished themselves in that, at the level of doctrine, they left jurists no room for judicial discretion. This means that the punishment, usually severe, could not be altered even in the presence of mitigating factors, though this rigidity was not always observed in practice.
[6] Rudolph Peters, Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-First Century (Cambridge University Press, 2006), 13.
[7] Peters, Crime and Punishment, 7. The schools of Islamic law differ in their usage of terminology.
[8] Baber Johansen, "Signs as Evidence: The Doctrine of Ibn Taymiyya (1263-1328) and Ibn Qayyim al-Jawziyya (d. 1351) on Proof," Islamic Law and Society 9, no. 2 (2002): 169.
[9] The most important exceptions were Ibn Taymiyya (d. 728/1328) and his student Ibn al-Qayyim (d. 751/1350). See more generally on this point Johansen, "Signs as Evidence."
[10] See, for instance, Marion Holmes Katz, "The Ḥadd Penalty for Zinā: Symbol or Deterrent? Texts from the Early Sixteenth Century," in The Lineaments of Islam: Studies in Honor of Fred McGraw Donner, ed. Paul M. Cobb (Brill, 2012), 351–76, 358–9.
[11] See Markaz al-Buḥūth, Majmūʿat al-aḥkām al-qaḍāʾiyya li-ʿām 1434 (Markaz al-Buḥūth, 2015) and Markaz al-Buḥūth, Majmūʿat al-aḥkām al-qaḍāʾiyya li-ʿām 1435 (Markaz al-Buḥūth, 2017).
[12] On the release of the court decisions, see Krell, Islamic Law in Saudi Arabia, 11–2.
[13] In Arabic: al-ḥudūd tudra biʾl-shubahāt. See on the principle and more generally on the important role of doubt in Islamic criminal law, Intisar Rabb, Doubt in Islamic Law: A History of Legal Maxims, Interpretation, and Islamic Criminal Law (Cambridge University Press, 2015), 5 and passim.
[14] The most important exceptions were the Mālikī jurists who considered the smell of alcohol sufficient proof. In the Ḥanbalī school, several jurists agreed with the Mālikīs, including Ibn Taymiyya and Ibn al-Qayyim. See al-Mardāwī, al-Inṣāf fī maʿrifat al-rājiḥ fī al-khilāf (n.p., 1956), 10:233. See also the discussion in Khālid b. ʿAbd al-ʿAzīz al-Jarīd, "Al-Istishmām: ḥaqīqatuhu wa-atharuhu," Majallat al-ʿAdl 61 (1435/2013–42): 111–38, 128–30.
[15] See Ibn Qudāma, al-mughnī (Dār Iḥyāʾ al-Turāth al-ʿArabiyya, 1985), 9:139.
[16] Muḥammad b. ʿAbd al-Raḥmān al-Qāsim, Fatāwā wa-rasāʾil samāḥat al-shaykh Muḥammad b. Ibrāhīm b. ʿAbd al-Laṭīf Āl al-Shaykh (Maṭbaʿat al-Ḥukūma bi-Makka Mukarrama, 1979), 12:68.
[17] In this particularly interesting case, the first-instance judge imposed a taʿzīr punishment, as he did not accept the mere presence of a smell as sufficient evidence for the ḥadd punishment. The appellate court, however, took the opposite view and applied the ḥadd punishment. Interestingly, Muḥammad b. Ibrāhīm argued that the first-instance judge's decision should be upheld, as he had followed the correct methodological steps and fulfilled the necessary conditions for delivering a valid judgment. For further discussion of how Saudi scholars, including Muḥammad b. Ibrāhīm, understand the appeals process, see Krell, Islamic Law in Saudi Arabia, Chapter 4.
[18] al-Qāsim, Fatāwā wa-rasāʾil, 12:68.
[19] The decision is printed in al-Jarīd, "Al-Istishmām," 138.
[20] Printed in al-Jarīd, "Al-Istishmām," 130.
[21] See, for instance, Mecca Criminal Court, File Nr. 3422125 (25.05.1434/6.4.2013). When blood tests are conducted, they are also used to check for other drugs the accused may have consumed. In many other cases, the authorities test liquids they find for their alcohol content and for their potential to cause intoxication.
[22] See, for instance, Najrān Criminal Court, File Nr. 3443649 (23.2.1434/6.1.2013).
[23] See, for instance, Qaṭīf Criminal Court, File Nr. 24363365 (19.11.1434/24.9.2013). Often such convictions relate to driving under the influence. However, in the majority of cases judges, do not rely on evidence when they deliver their judgments, since most defendants confess once confronted with it. Interestingly, the same procedure is applied in cases involving glue sniffing. See, for instance, Qaṭīf Criminal Court Case Nr. 3514742 (1435/2013–14).
[24] Since Saudi Arabia abolished slavery in 1965, cases of zinā in practice now concern extramarital sexual relations and homosexuality.
[25] Peters, Crime and Punishment, 34.
[26] However, according to the published decisions, married offenders have been sentenced to taʿzīr punishments. See, for instance, Aḥsāʾ General Court, Case Nr. 3524981 (1435/2013–14).
[27] This applies both to married and unmarried offenders. Markaz al-Buḥūth, Al-Mabādiʾ wa'l-qarārāt al-ṣādira min al-hay'a al-qaḍāʾiyya al-ʿulyā wa'l-hayʾa al-dāʾima wa'l-ʿāmma bi-majlis al-qaḍāʾ al-aʿlā wa'l-maḥkama al-ʿulyā min ʿām 1391 ilā ʿām 1437 (Markaz al Buḥūth, 2017), 336 (Principle 1222).
[28] Muḥammad b. Ṣāliḥ al-ʿUthaymīn, Al-Sharḥ al-mumtiʿ ʿalā zād al-mustaqniʿ (Dār Ibn al-Jawzī, 2007), 14: 274–77.
[29] Ḥamd b. ʿAbd al-ʿAzīz al-Khuḍayrī, Al-Ijrāʾāt al-qaḍāʾiyya (n.p., n.d.), 27.
[30] See, for instance, Riyadh Criminal Court, File Nr 33380550 (14.08.1433/4.7.2012). Digital conversations themselves are sometimes treated as evidence, without being explicitly interpreted as confessions. See, for instance, Khubar Criminal Court, Case Nr. 351066 (1435/2013–14).
Suggested Bluebook citation: Dominik Krell, Modern Forensic Technology and the Evolution of Islamic Criminal Law in Saudi Arabia, Islamic Law Blog (Mar. 12, 2026), https://islamiclaw.blog/2026/03/12/roundtable-modern-forensic-technology-and-the-evolution-of-islamic-criminal-law-in-saudi-arabia/.
Suggested Chicago citation: Dominik Krell, "Modern Forensic Technology and the Evolution of Islamic Criminal Law in Saudi Arabia," Islamic Law Blog, March 12, 2026, https://islamiclaw.blog/2026/03/12/roundtable-modern-forensic-technology-and-the-evolution-of-islamic-criminal-law-in-saudi-arabia/.
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