Alternative Dispute Resolution in Islamic Culture
By Yasmine Rugarli
It is noticeable that in contemporary society in which we live, ADR is increasingly becoming a trend for the many advantages from which parties can enjoy. However, when we think about ADR we may focus a lot on efficiency, lesser risks, cost-effective aspects, and, thus, forget that in reality for many cultures it is a practice that is deeply enshrined in dogmas. For instance, did you know that it is part of the Islamic culture for nearly two thousand years? Conversely from the Western world, which has used it only from the past few decades, the Muslim community has relied on it for centuries[1]. Therefore, an understanding of the origins of ADR practice will be given in light of the Islamic standpoint. Additionally, two main practices and foundation from Dispute resolution will be listed and analyzed.
In order to grasp the rationale of ADR usage in Islam, it is fundamental to first take a look to the culture, which is the key factor in the development of the legislation, customs and legal practice. Indeed, Islam is a religion built around peace and harmony with a strong ideology revolving around the principles of coexistence, reconciliation and acceptance[2].
The religion springs from the early 7th century in which the Prophet Muhammad was chosen as the holy messenger of Allah with the mission of revealing the Will of God, then codified in the Sharia.[3] The latter represents the divine law which then was branched in the Quran and the Sunna, both fundamental sources of teaching, encouraging the enforcement of faith morally and spiritually speaking[4].
Therefore, the guidelines of dispute resolutions in Islam can be traced to the principles rotted in the aforementioned codifications. In conjunction to an ideology of peace and harmony, the aim is to overcome disputes while maintaining coexistence[5]. This concept has been embraced in Islam and Allah says to the effect:
“The believers are but brothers, so make settlement between your brothers. And fear Allah that you may receive mercy”[6]
The following line announces:
“If two parties among the believers fall into a quarrel, make peace between them… with justice, and be fair: for Allah loves those who are fair and just”[7]
The lecture of these verses makes clear the paramount priority for Muslims to obey the will of Allah which values the settlement of disputes in an amicable manner.[8] Indeed, the conception of brotherhood makes us realize that all the perceived controversies, whatever their kind, shall be overcome to “receive [Allah’s] mercy”. The virtue of ADR practices is plainly implied in the Islamic sources contrarily to adjudication mechanisms.[9] Thus, the main process of contemporary dispute resolution will be listed and analyzed.
First, can be identified the concept of Sulh which in Quranic Arabic relates to the terms “saluha”, a verb that explains the process of restoring something.[10] In the Quran’s wording as well as in the Ottoman Code, the Prophet Muhammad strongly encourages the community to set dispute throughout Sulh[11]. Briefly, it is an old practice including negotiation, mediation or conciliation mainly for private affairs as divorces and family disputes. The multitude of Islamic sources promote the application of Sulh as well as the appointment of arbitrators:
“If you fear a breach between them (husband and wife) appoint two arbiters, one from his family and the other from hers. If they wish for peace, Allah will cause their conciliation, for Allah hath full knowledge, and is acquainted with all things”[12]
A second way that ADR is manifested is through the practice of Muhtasib, which relates to the modern figure of Ombudsman[13]. In the medieval Muslim Word, the Muḥtasibs of Cairo were the superiors of the bazaars and trade and, thus, public business was conducted in accordance with the law of Sharia. Therefore, in the sphere of dispute resolution, the Quran delivers: “let there arise out of you a band of people inviting to all that is good enjoining what is right and forbidding what is wrong; they are the ones to attain felicity”[14]. From such wording, we can picture the Muhtasib as an advocate dedicated to the public interest in the given reality.[15] Hence, during time stream such figure became part of the Islamic jurisprudence and common system of dispute resolution, more particularly in relation to religious activities or municipal affairs[16].
From this overall analysis, can be understood not only the mere pragmatic application of ADR in Islam, but, more importantly the philosophy of such practice. Indeed, if looked with curious eyes, Islam codification does recognize the existence of alleged antagonism between parties, however, more importantly, values the link of brotherhood which brings us together.
[1] Kamal Halili Hassan, Employment Dispute Resolution Mechanism from the Islamic Perspective (Arab Law Quarterly, 2006) p.181
[2] Mohamed M. Keshavjee, Sharia and Alternative Dispute Resolution: Mechanism for Legal Redress in the Muslim Community (I.B.Tauris& Co. Ltd 2013) p.57
[3] Arthur J. Gemmell, Commercial Arbitration in the Islamic Middle East,(Santa Clara Journal of International Law, 2006) p.169
[4] Muhyi al Din Abu Zakaria YaÍya al-Nawawi, TaÍrir Alfaz al-Tanbih, Dar al-Qalam, 1408H at 201, Raihanah Hj.Azhari, Sulh dalam perundangan Islam: Kajian di Jabatan Kehakiman Syariah Selangor Darul Ehsan, (Ph.D. thesis, Universitri Malaya, 2005)p. 57
[5] Johnston, Rizzo,R.“A Return from Tradition to Reform: The Sharia’s Appeals Court Rulings on Child Custody (1992-2001)” Fordham International Law Journal (2003) p.597
[6] Quran, verse 49:10
[7] Quran, verse 49:9
[8] Ann Black and JamilaHussain, Responding to the Challenge of Multiculturalism: Islamic Law Courses in Law School Curriculain Australia, (The Flinders Journal of Law Reform, 2006) p.205
[9] Ibid
[10] Muhyi al Din Abu Zakaria YaÍya al-Nawawi, TaÍrir Alfaz al-Tanbih, Dar al-Qalam, 1408H at 201, Raihanah Hj. Azhari, Sulh dalam perundangan Islam: Kajian di Jabatan Kehakiman Syariah Selangor Darul Ehsan, (Ph.D. thesis, Universitri Malaya, 2005) p.57
[11] Walid, Dialogue and the Practice of Law and Spiritual Values: Courts, Lawyering and ADR: Glipses into the Islamic Tradition, (2001) p.1035
[12] Quran, al-Nisa’: 35
[13] Buckley, The Muhtasib, Arabica 34 (1992) p.59
[14] Quran verse 3:110
[15] Syed Khalid Rashid, Peculiarities & Religious Underlining of ADR in Islamic Law (2008)
[16] Ibid