By Mohammad Hashim Kamali
18 August 2016
1. Dispute Settlement through Conciliation (Sulh, also Islah)
In this method, individual parties agree to settle a dispute among themselves without the involvement of a third party. The linguistic meaning of ‘Sulh’ is to end a dispute through conciliation and agreement reached via a variety of tools, including negotiation, mediation, reconciliation, and amicable settlement through compromise. However, from the legal viewpoint Sulh is a contract which needs to be ratified by the expressed agreement and consent of disputing parties who are, in principle, attempting to end the dispute between them. Without wishing to enter into details, Muslim jurists have elaborated on the juristic consequences of the contract of Sulh, adding a number of other contract varieties that may be integrated therein, depending on whether the terms of Sulh involve exchange of values, waivers, affirmation or denials of statements, and so forth. The Qur’anic authority for Sulh is provided in the following passage:
In most of their secret talks, there is no good, but if one enjoins an act of charity or justice, or conciliation between people (Islah Bayn Al-Naas)[then secrecy is permissible], and those who do this earn God’s pleasure and the highest reward. (Q al-Nisa’, 4:114)
Ibn Rushd al-Qurtubi (d.1126CE) comments that this verse is a general(‘am) statement on conciliation and applies to all disputes pertaining to life, property and honour – indeed, to any claim or disagreement that gives rise to a dispute among people.64
Elsewhere the Qur’an speaks of conflicts that may arise between two Muslim groups. In these cases, an attempt must to be made to reconcile them (Fa-Slihu Baynahuma). But, if any such attempt fails due to, for example, one party’s aggression and lawlessness, then the aggressors should be fought until they cease aggression. If they cease aggression then “make peace between them with justice– Fa-Slihu Banahuma Bi’l-‘Adl.” The verse then continues: “the Believers are but a single Brotherhood. So make peace between your two [contending] brothers.” (al-Hujurat, 49:9).
In a separate passage relating to disagreement and discord between spouses, the Qur’an enjoins them to settle their differences amicably, for “conciliation (al-sulh) is best” (al-Nisa’, 4:128). The text therefore not only permits Sulh, but recommends it as the best way to resolve matrimonial conflicts. This is said without any qualification, as priority is given to unqualified reconciliation, rather than one contingent on justice. In other places the text usually espouses peace with justice, especially when conflict has led to military confrontation and violence.
A question has arisen about whether a one-sided and unjust peace should be rejected and abandoned, or whether it is still permissible. Two responses have been given to this question. First, it has been noted that the Qur’an has praised peace-making absolutely. As such, we do not necessarily need to look at the fairness aspect of an agreement, as Sulh is not always an issue of legality and rectitude, but of putting an end to hostility and violence. To support this view, proponents point to the Hadith in which the Prophet says “Peace among Muslims is permissible - Al-Sulh Ja’iz Bayn Al-Muslimin.” Turning to the second view, this refers to some of the qualifications that the Qur’an itself (and also some Hadith) have recorded – namely, the stipulation that Sulh may not turn what is Halal into what is Haram, and vice versa. For example, in a Hadith narrated by Abu
Hurairah, the Prophet said: “Making a settlement between Muslims is permitted, except that which permits what is prohibited or prohibits what is permitted.”65 Juristic discussion records further details on this but draws the conclusion that permissibility of peace generally is the preferred position.66 Scholars of Hadith and Fiqh have further held that the substance of these provisions applies to Muslims and non-Muslims alike, unless the position has been specified otherwise.
That all this is mentioned as occurring ‘between Muslims’ merely reflects the fact that they are the ones most likely to adhere to Shariah judgments. Certainly, Islamic law recognises several types of settlement based on the relationship of the parties involved, and each type is treated individually. These include settlements between a Muslim state and a non-Muslim state; between the head of state (Imam), rebels and renegades; between husband and wife; and between parties to a financial dispute etc., which we do not propose to elaborate on here.67
Sulh is also a private dispute settlement method, appropriate for disputes in which the parties concerned agree upon a solution without involving any courtroom proceedings. The parties may also agree to refer the matter to a community appointed judge, who may enjoy broad support. In this respect, Sulh may be suitable for Muslim minority groups living in non-Muslim majority countries, who may find themselves operating within multiple laws and judicial systems, especially in personal law matters, such as family and inheritance disputes. The parties may consequently agree voluntarily to resort to a private Sulh settlement method.68 But Sulh may also be suggested by the court: the judge may ask the parties to negotiate and reach a settlement through mutual agreement between themselves, thus avoiding adversarial court litigation. On this note, the second caliph, ‘Umar ibn al-Khattab, is quoted as having said: “refer the litigants to attempt conciliation (Sulh) between them, for court adjudication often leaves the parties with unsettled resentment.”69
2. Arbitration (Tahkim)
Tahkim is voluntary arbitration in which disputing parties appoint an arbitrator to resolve their dispute. The linguistic and juridical meanings of Tahkim are almost concurrent - to designate someone as an arbitrator/judge when deciding on a given matter. The difference between arbitration and courtroom proceedings, however, is that, in the former, the parties themselves select the arbitrator and voluntarily accept to obey his or her decision. The parties may also stipulate conditions to their agreement - for instance, regarding time limits, the place of arbitration, or that a certain learned person or body be consulted/involved etc.70
Arbitration is a lesser form of dispute resolution, inasmuch as it is undertaken pursuant to private authority, whereas adjudication by the court of law partakes in the exercise of public authority.71
All the leading schools of Islamic law uphold the validity of arbitration, although most tend to preclude crimes and punishments and the decisive injunctions of Shariah, such as the prescribed penalties (Hudud) and just retaliation (Qisas). The Hanbali School has, however, removed all such limits and offers the widest scope for arbitration, holding that it applies to all disputes and litigations that can be adjudicated before the court of justice, including financial matters, matrimonial disputes, crimes and penalties, Hudud and qisas.72
Arbitration must fulfill the following conditions: 1) The arbitrator is a competent person. For the Hanafi School, this means that he/she is qualified to be a judge. The Shafi’i, Maliki and Hanbali schools, however, do not specify this as a requirement. In the context of this condition, it is further stated that, if both parties are Muslim, the arbitrator should also be a Muslim, but a non-Muslim may be appointed as arbitrator if both or one of the parties to the disputes is non-
Muslim; 2) There is a real conflict to be resolved; 3) The parties agree to accept the result of the arbitration. In the event that the local court or qadi appoints the arbitrator/s, however, the parties’ advance consent to the outcome of arbitration is not necessary. The Hanafi school also validates arbitration even if the parties’ consent is given only after the arbitrators’ decision is announced; 4) That the arbitrator is not related to one of the parties such that it would be prohibited for one to be witness for the other (like parent and spouse).73
Textual authority for arbitration is provided by both the Qur'an and Sunnah.
In the Qur’an, God Most High says with reference to matrimonial discords: “And if you fear a breach between them [the spouses] appoint an arbitrator from his folk and an arbitrator from her folk. If they both desire reconciliation” (al-Nisa’,
4:35). In a subsequent verse in the same chapter, it is provided with reference to the Prophet that: “They can have no (real) faith until they make [you] the arbitrator/judge (Yuhakkimuka) in all disputes between them, and then submit willingly to thy decisions” (4:65). The Prophet has also approved of arbitration; on at least three occasions the Prophet was informed of arbitration attempts by his
Companions, Sa’d bin Mu’adh, al-A’war bin Bashamah, and Aba Shurayh Hani’ bin Yazid, and was reportedly pleased when he heard that the parties concerned in each case had accepted the outcome of the process.74
3. Amnesty (‘Afwa)
Amnesty and forgiveness are the means in Islamic theology and law – as also in most other world traditions – of relieving someone from punishment, blame, civil liability or religious penalty. It is also a recognised means of overcoming conflict and paving the way for peace. Whereas Christianity primarily conceives of forgiveness as a moral and religious imperative, Islam adds a legal dimension: it affirms it as a noble course of action, as a social good, and a means of peace- making. For instance, Islamic conflict resolution in the context of homicide and bodily injury assigns a role for granting forgiveness to either the victim of the crime or his/her family. The Qur’an and Hadith consistently hold out forgiveness as the preferred option.
Being the subject of over 30 verses in the Holy Book, forgiveness (‘Afwa) plays a role in ending legal disputes. While speaking of just retaliation (Qisas) as a right of the crime victim and his/her family, the Qur’an follows on to declare that “if the family of the slain grants forgiveness, he may be compensated with handsome gratitude in a decent manner” (2:178). The text then warns that, after granting forgiveness, there must be no vengeance or aggression; everyone must make sure that the conflict comes to an end.75
The Qur’an often praises those who take a forgiving attitude, speaking of ‘Afwa as a manifestation of Ihsan (beauty, beneficence-al-Baqarah, 2:178).God also speaks of His love for those who forgive without vindictiveness, especially when they are overwhelmed with the urge for revenge (Aal-‘Imran, 3:134).
The recompense of an injury is an injury the like it, but whoever forgives and makes reconciliation, his reward is with God; and God loves not those who do wrong. (al-Shura, 42:40)
But (remember) one who endures with fortitude and forgives that indeed is the most distinctive of all deeds. (Q 42:43)
Hold to forgiveness, enjoin kindness, and turn away from the ignorant. (al-A’raf, 7:199).
Pardoning is especially meritorious for someone who can avenge but chooses to exonerate and forgive. Yet Islam also puts a high premium on justice demanding sternness, especially from a leader or judge. Justice and amnesty often moderate and temper one another but can also conflict. To quote the Qur’an:
God commands justice (al-‘adl) and the doing of good (al-ihsan) and generosity to one’s kindred, and He forbids indecency, wrongdoing and oppression. (al-Nahl, 16:90)
In this verse, justice is enjoined side-by-side with ihsan, which seems to imply that it is not always a measure-for-measure justice that is desired; justice should be tempered, whenever appropriate, by ihsan, which in this context subsumes amnesty and forgiveness. Punishing the wrongdoer is the normal course enjoined bytheShariah,butamnestymaybepreferableattimes.Amnestyandforgiveness can play a vital role in post-conflict situations, such as those that now obtain in Iraq,Afghanistan,Libyaandmanyotherpost-ArabSpringscenarios.Thepriority in post-conflict situations may to be to bring peace and facilitate an environment in which people can leave the torments of the past behind in the hope of building a stable future. Certainly, normal rules of law may be difficult to apply due to difficulties in evidence and proof and other factors – hence the special relevance of forgiveness.
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