By Mohammad Hashim Kamali
19 August 2016
4. Counselling (Nasihah)
Counselling (Nasihah) is a Qur’anic principle that consists of giving sincere advice to another person or persons (including disputing parties) in an effort to resolve differences. It is also a recognised method within the rubric of alternative dispute resolution (ADR), especially in commercial disputes outside the courts' jurisdiction. Yet Nasihah is a broad concept that cannot be confined to any particular context. Indeed, Nasihah characterises Islam itself, as the proclamation found in a renowned Hadith attests: “religion is good advice – Al- Dinu Al-Nasihatu.”76 As a method of dispute resolution, Nasihah consists of giving constructive professional advice that guides conduct and recommends a solution toresolvedisputes.Althoughactinguponthatadviceisrecommended,itremains essentially optional.
In order for Nasihah to be acceptable and effective as a dispute resolution mechanism, certain rules need to be followed: a) Nasihah should not be given in a manner that implies accusing any of the disputing parties; b) one should not expect any of the conflicting parties to comply with a given Nasihah instantly or expect specific results; c) Nasihah should be given in its proper context, paying attention to place and time and also to the right manner of delivery; d) the counsellor should be knowledgeable in the subject matter of the dispute and be able to offer useful advice. Nasihah may be offered by community leaders, Imams or Muslim counsellors, social workers, and professional counsellors, all of whom could provide early intervention and advice in order to prevent a problem becoming larger, more damaging, or intractable.
The Islamic Nasihah differs from mainstream counselling because it is based on the embedded perception of a common belief system – Islam – shared by both the advisee(s) and the counsellor. This shared understanding should ideally create a trusting relationship between all parties, often inspiring the advisee(s) to attempt a peaceful and amicable resolution of a particular dispute.
5. Truce (al-Hudnah)
Literally, Hudnah (also known as Muwada’ah – mutual abandonment) means stillness after turbulence or excitement. Juristically, it has been variously defined by the different Islamic law schools. The Hanafi School, for example, defines Hudnah as an agreement/contract to cease fighting for a stated period, with or without financial consideration, when the Imam (head of state) deems it to be of benefit. Other schools concur, but add that Hudnah is signed only with a warring party (Shafi’i) and with non-Muslims (Hanbali).77
The legality of a truce is established by the Qur’an (al-Tawbah, 9:4; al-Anfal, 8:61; al-Ma’idah, 5:1).The truce of Hudaybiyyah, which the Prophet signed with the pagans of Mecca in the year 5A.H,also proves the validity of Hudnah. Truces may be concluded with non-Muslims (including apostates who have renounced Islam), rebels and mutineers. This is with the proviso, however, that the latter group are not entitled to any financial consideration.
For A Truce To Be Valid, It Must Meet The Following Conditions:
1) That the Imam or his deputy ratifies it. Although this is the majority (Jumhur) position, the Hanafi’s hold that Hudnah may be signed by any group of Muslims – just as a pass of safe conduct (Aman) may be signed by any Muslim citizen; 2) that the truce is for the benefit (Maslahah) of Muslims and fulfils a valid Shariah purpose; 3) that it is for a specified period. Although this condition is not agreed upon by all the schools, the majority (Maliki, Shafi’i and Hanbali) maintain that itshouldbeneitheropen-endednorpermanent.OnlytheHanafisvalidateatruce that is not time-bound; and 4) that it is not contingent on an unlawful condition that violates Shariah.78. This last condition may, however, be disregarded in the event of necessity (darurah). Hence a condition, such as payment of a financial consideration to the disbelievers, may be agreed to when necessary, but it would be deemed illicit otherwise.79
As for the consequences of a truce, it is generally agreed that a valid truce binds all Muslims, their Imam and his successors (if any). It accords safety and protection to all its counterparties, their persons and properties. Muslims are also required to be amicable and fair with the counterparties, both in word and act, and refrain from harming or humiliating them in any way, especially if they happen to be Muslims. Only when the signatories commit acts of treachery or openly violate the terms of the agreement can the Imam revoke the truce.
Whereas blasphemy (such as insulting the Prophet Muhammad) amounts to a breach of truce according to the majority, the Hanafis hold that it does not.80 The truce comes to an end either upon expiry (if time-bound) or upon its termination by the Imam.
Islamic Legal Maxims
WenowpresentaselectionofIslamiclegalmaximsrelatingtopeace,illustrating how the juristic tradition lends support to its promotion:
•Human dignity is a foundational purpose of the Shariah.
•The norm with regards to life, property and honour is inviolability.
•Avoidance of hostility is, as far as possible, an obligation.
•Everything which causes sedition/tumult is impermissible.
•Elimination of injustice is, as far as possible, an obligation.
•Elimination of harm is, as far as possible, an obligation.
•Settlement/cessation of a dispute is, as far as possible, an obligation.
•The principle of reciprocal treatment among nations is bound by considerations of moral virtue.
•The obligation of jihad partakes in the obligation of means, not of ends and purposes.
•Shariah advocates equality among people unless there be evidence to justify an exception.
•Muslims, Dhimmis and temporary residents are all equal in respect of enacted rights that protect them against harm.
•Peace among Muslims is permissible provided that it does not turn the lawful into unlawful and vice versa.
•When defence is possible by lighter means, the more difficult/heavy ones may not be attempted.
•The norm is absence of hostility.
•The norm is absence of treachery.
•Liability [for compensation] falls on the aggressor.
•Aggression does not acquire a right for the aggressor.
Conclusion and Recommendations
In this article, we have explored the many distinguishing features of peace- making in the Islamic tradition. We have seen a vision of Islam as a religion of peace and justice, with an emphasis on equitable approaches to economic and political development, a qualified affirmation of cultural and religious diversity within the larger rubric of human fraternity, peace-making through non-violence, peace through equity, peace through conciliation, and an optimistic conception of human responsibility and potential. The evidence presented lends support to the following conclusions and recommendations:
•The pathways to peace-making expounded here should be practiced, as far as possible, by Muslim individuals, communities and leaders. History shows that Muslims are strongest when they are true to their principles. Values must therefore guide conduct if the latter is to be effective. Certainly, Islam is both faith and action (‘Aqidah Wa ‘Amal); the one without the other is incomplete and inconsequential.
•Our understanding of Islam should be inclusive of its broader objectives and purposes, not constrained by the rigidities of literalism and/or divisive scholasticism. The Sunni-Shia conflict clearly stands in contrast with Islam as a religion of peace and unity.
•Good governance, social justice and the rule of law are strongly conducive to normalcy and peace. These, however, are the very areas which require the most attention in many present-day Muslim countries. Governments in Muslim countries should therefore commit themselves on these fronts, as part of key performance indices that can measure progress on a regular basis.
•Muslim individuals and communities must engage in only peaceful jihad, such as fighting illiteracy, disease, environmental degradation and other social ills. Military jihad is today the assignment of professional armies.
•In the era of globalisation, domestic peace is often inseparable from international peace. Yet, Muslim societies are most often afflicted with domestic conflicts. Peace from within must therefore be given priority over external affairs.
•Major international actors must bear greater responsibility for acting in the best interests of all and letting their policies be guided by ethical norms, not nationalist and/or protectionist interests that tend to widen inequality and poverty levels worldwide.
•The use of force as a last resort is inevitable when confronting rampant terrorism. Yet it has become patently obvious that violence breeds violence.
Negotiated political settlements informed by ethical norms and justice, and not military force, are indispensable and should be prioritised during efforts to uproot international terrorism.
•Sufismcantranscendthebarriersthatdividehumanity.Muslimcommunities and their leaders should utilise the resources of this rich tradition in order to bring their own people closer together and improve the climate of understanding between communities and nations.
*Mohammad Hashim Kamali, Founding CEO of IAIS Malaysia, graduated from Kabul University,and took his PhD in Islamic and Middle Eastern Lawat the University of London in 1969. Professor Dr M. H. Kamali served as Professor of Islamic Law and Jurisprudence at the International Islamic University Malaysia (IIUM, 1985–
2007), then Dean of the International Institute of Islamic Thought and Civilization
(ISTAC).HealsoheldVisitingProfessorshipsatMcGillUniversity’sInstituteof Islamic Studies; Capital University, Ohio; and the Wissenschaftskolleg, Berlin.A member of the Constitution Review Commission of Afghanistan (2003), he has provided expert legal consultation to the new constitutions of Iraq, the Maldives and Somalia. Eminent authority on Islamic legal studies, he has published over 170 academic articles and 35 texts, including standard textbooks at universities worldwide. He can be contacted at email@example.com.
1.Cf., Nathan C. Funk and Abdul Aziz Said, Islam and Peacemaking in the Middle East, Boulder- Colorado & London – UK: Lynne Rienner Publishers Inc., 2009, p. 130.
2.Cf., Seyyed Hossein Nasr, “Islam and the Question of Violence,” in ed., Aftab Ahmad Malik, With God on Our Side, Policies and Theologies of the War on Terrorism, Bristol, UK: Amal Press, 2005, p. 273.
3.“Al-Salam” is, moreover, one of the ninety-nine Most Excellent Names (al- asma’ al-husna) of God that occur in the Qur’an. These are descriptive of the illustrious Self of God, the way that God makes Himself known to His human servants.
4.Cf., Asna Husin, “Acehnese Women Struggle for Peace and Justice: Challenges and Opportunities,” Islam and Civilisational Renewal, Vol.6, no.3 (July 2015),
5.Cf., Mahmoud Zakzouk, On Philosophy, Culture and Peace in Islam, ed., Andreas Bsteh, published as English tr. from German, New Delhi: Vikas Publishing House, 2004, pp. 126-7.
6.Ibn Taymiyyah, “Qa’idah fi Qital al-Kuffar,” quoted in Majid Khadduri, The Islamic Law of Nations: Shaybani’s Siyar, Baltimore: The John Hopkins University Press, 1966, p. 59.
7.Ibn Qayyim al-Jawziyyah, Ahkam al-Dhimmah, 3rd ed., Subhi al-Salih, ed., Beirut: Dar al-‘Ilm li’l-Malayin, 1983, 1:17.
8.Paul Hedges, “The need for religious literacy,” Kuala Lumpur: New Strait Times, August 31, 2015, p. 29.
9.See details Andrew C Hess, “Millet,” The Encyclopedia of Modern Islamic World, Vol. 3, p. 107.
10.See for details Ibrahim Kalin, “Islam and Peace: A Survey of the Sources of Peace in the Islamic Tradition,” in ed., Qamar-ul Huda, Crescent and Dove: Peace and Conflict Resolution in Islam, Washington D.C: United States Institute of peace, 2010, p. 19.
11.Hedges, p. 29.
12.Cf. Mahmoud Zakzouk, On Philosophy, p. 115.
13.Sachiko Murata and William C. Chittick, The Vision of Islam, New York: Paragon, 1994, p. 309.
14.Cf., Ayse Kadayifci-Orellana and Meena Sharify-Funk, “Muslim Women Peacemakers and Agents of Change,” in ed Qamarul Huda, Crescent and Dove: Peace and Conflict Resolution in Islam, Washington DC: United States Institute of Peace, 2010, p. 190.
15.Cf., Major Leon “Bogo” Cornwall, “The Socio-Political and cultural Implications of Monotheism in a Conflict-Ridden world,” The Cordoba Seminar Series Papers, London: The Cordoba Foundation and Muslim Centre, February 2010,
16.Cf., Seyyid Hossein Nasr, The Heart of Islam, 2002, p. 221; & Funk and Said,
Islam and Peacemaking, p. 216.
17.Cf., Kalin, “Islam and Peace,” p. 24.
18.The term Islamicate suggested the hybrid and multifaceted nature of Islamic civilisation, as many previously non-Islamic elements were incorporated into Islamic civilisation in a relatively short period of time. See Marshall Hodgson, The Venture of Islam, Chicago: University of Chicago Press, 1974.
19.Kalin, “Islam and Peace,” p. 27.
20.See for details Funk and Said, Islam and Peacemaking, 220f.
21.See Arthur Hyman, “Jewish Philosophy in the Islamic World,” in S. H. Nasr and Oliver Leaman, eds., History of Islamic Philosophy, London: Routledge, 1996, 677; Kalin, “Islam and Peace,” pp. 27-28.
22.Cf., Kalin, “Islam and Peace,” p. 29.
23.Cf., Sachiko Murata and William C. Chittick, The Vision of Islam, New York: Paragon, 1994, p. 267.
24.Gandhi as quoted by Cornwall, “The Socio-Political and Cultural Implications
of Monotheism,” p. 10.
25.Cf. Asma Afsaruddin, “Recovering the Early Semantic Purview of Jihad and Martyrdom: Challenging Statist Military Perspectives,” in ed. Qamar-ul Huda,
Crescent and Dove, p. 43.
26.See Ibn Abi al-Dunya, al-Sabr Wa’l-Thawab ‘Alayhi, ed. Muhammad Khayr Ramadan Yusuf, Beirut: Dar Ibn Hazm, 1997, p. 85.
27.Ibn Abu al-Dunya, Sabr, p. 85
28.Ibid., p. 51.
29.See Qamar-ul Huda, ed., Crescent and Dove, Introduction, p. xix.
30.See for details, Zeki Sartoprak, “Badiuzzaman Said Nursi’s Paradigm of Islamic Nonviolence,” in Qamarul Huda, ed., Crescent and Dove: Peace and Conflict Resolution in Islam, Washington DC: United States Institute of Peace, 2010, p. 102.
31.Ibid., p. 103.
32.Badiuzzaman Said Nursi, “The Voice of Truth,” Volkan, Istanbul, March 27, 1909 as quoted in Sartoprak at “Nursi’s Paradigm,” p. 101.
33.Cf. Sartoprak, “Nursi’s Paradigm,” 100f.
34.Ibid., p. 104.
35.Ayse Kadayifci-Orellana and Meena Sharify-Funk, “Muslim Women”, p. 194.
36.Mohamed Abu-Nimr, “An Islamic Model of Conflict Resolution,” in ed., Qarar- ul Huda, Crescent and Dove, p. 77; Chandra Muzaffar, Religion Seeking Justice and Peace, Penerbit Universiti Sains Malaysia 2010, p. 77.
37.See Asma Afsaruddin, “Recovering the Early,” p. 189.
38.Muzaffar, Religion Seeking Justice, p. 78.
39.Funk and Nathan, Islam and Peacemaking, p. 185.
40.Cf., Nathan and Said, Peacemaking, p. 186.
41.All of the 24 verses of relevance to jihad can be found in Cherif Bassiouni and Amna Guellali, eds., Jihad and Its Challenges to International and Domestic Law, Hague Academic Press, The Hague, 2010, pp. 126-127.
42.Muhammad Sa’id Ramadan al-Buti, Jihad fi’l-Islam, Beirut, Dar al-Fikr 1995,
43.‘Abd al-Rahman al-Mubarakfuri, Tuhfat al-Ahwadhi bi-Sharh JamiÑ al-Tirmidhi, ed. By ‘Abd al-Rahman ‘Uthman, Cairo, Matba’at al-Marifa [n.d.] Hadith No. 1671.
44.Ibn Majjah, Sunan Ibn Majjah, Kitab al-fitan. Bab al-Amr bi’l-MaÑruf wa’l- Nahy ‘an al-munkar, Hadith No. 4011. Abu Dawud and Tirmidhi have recorded
aslightly different version of this Hadith which mentions, the word ‘Ñadl’ (justice) instead of ‘haqq’ (truth).
45.Mubarakfuri, Tuhfat al-Ahwazi, p. 250.
46.Muslim, Mukhtasar Sahih Muslim, p. 469, Hadith No. 1756.
47.A J Wensinck, Al-Mu‘djam al-Mufahras li-AlfÉÐ al-HadÊth al-NabawÊ, vol. 1, Leiden: E J Brill, 1967, p. 389.
49.‘Abd al-Razzaq, al-San’ani. Al-Musannaf, vol. 5, Beirut: DKI, nd., p. 271-272.
50.Muhammad Ibn Isa Al-Tirmidhi, Sunan al-Tirmidhi, Vol 4, hadith no: 2647, Cairo: Darul Al-Hadith, 2005, p. 454.
51.Ibn Hazm al-Zahiri, Kitab al-Fisal fi’l-Milal wa’l-Ahwa’ wa’l-Nihal, Cairo: al-
Matba’ah al-Adabiyyah, 1321/ 1942, 4:135.
52.Cf., ManzooruddinAhmad, Islamic Political System in the Modern Age (Karachi, Royal Book Company 1983) p. 185.
53.See Mohammad Hashim Kamali, Law in Afghanistan, Leiden: E.J. Brill, 1985, p.7.
54.Bassiouni, Jihad and its Challenges, p. 140.
55.Muhammad Abu Zahrah, Nazarijyat al-Harb fi’l-Islam [The Theory of War in Islam], Cairo, Dar al-Qahirah lil-Taba’ah, 1380/ 1961, pp. 24-25.
56.Cf., Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, (Cambridge, Islamic Texts Society 2003) pp. 202-228.
57.Ali A. Mazrui. ‘The Ethics of War and the Rhetoric of Politics: The West and the Rest,’ Islamic Millennium Journal (2002) p. 1.
58.Ibid., pp. 3-4. Ali Mazrui mentions in this connection many leading non- Western personalities, including Mahatma Gandhi, Albert Luthuli, Anwar Sadat, Desmond Tutu, Nelson Mandela, and Kofi Annan, whose advocacy of peace echoes the spirit of Christian teachings better than most mainstream Christian themselves (Mazrui, ibid., p. 7).
59.Q Aal-‘Imran, 3:110.
60.For details on Social Justice in Islam, see Mohammad Hashim Kamali, Freedom, Equality and Justice in Islam, Cambridge: Islamic Texts Society, 2000, 133-43.
61.Cf., AbdulHamid A. AbuSulayman, The Islamic Theory of International Relations: New Directions for Islamic Methodology and Thought, Herndon, Va: International institute of Islamic Thought, 1987, p. 20.
62.Cf., Joel Howard, “Warfare in the Qur’an” in eds., Ghazi bin Muhammad et al,
War and Peace in Islam, p. 47.
63.This wider concept of peace has gained further ground since the so-called post-Cold War Washington New Consensus, which holds that elimination of violence has become more challenging since the 1990s “without major structural international change and deeper forms of justice.” See Oliver R. Richmond, “The changing concept of peace building,” Kuala Lumpur: News Straits Times, December 29, 2015, p. 16.
64.Ibn Rushd al-Qurtubi, al-Muqaddimat al-Mumahhidat, 2:515 as quoted in Mawsu’ah Fiqhiyyah, Vol. 27:325.
65.Muhammad ibn Hibban, Sahih Ibn Hibban, Beirut: Mu’assasah al-Risalah, 1988, hadith no. 5182.
66.Cf., “Sulh,” in al-Mawsu’ah al-Fiqhiyyah, vol.27: 335-337 at p. 336.
67.Cf., Ibid., Vol.27, pp.323-357; Musa Furber, “Alternative Dispute Resolution,” Tabah Analytic Brief, No, 11, 2011: Tabah Foundation, Abu Dhabi, U.A.E., p.2. For details, Furber refers the reader to al-Sarqawi’s commentary on Zakariyya al-Ansari’s, Hashiyat al-Sharqawi ‘ala Tuhfat al-Tullab: Cairo: Mustafa al-Babi al-Halabi, 1941, 2:64.
68.Furber, “Alternative Dispute Resolution,” p. 9.
69.Quoted in al-Mawsu’ah al-Fiqhiyyah (Kuwait), “Sulh,” Vol.27, p. 327.
70.Cf., “Takhim” al-Mawsu’ah al-Fiqhiyyah, Kuwait: Wizarat al-Awqaf wa’l- Shu’un al-Islamiyyah, 10:233-34.
71.Muhammad Amin ibn ‘Abidin, Hashiyah Radd al-Mukhtar ‘al Durr al-Mukhtar, 8 vols. 3rd ed., Cairo: Maktabah Mustafa al-Babi al-Halabi, 1984, 5:428.
73. “Tahkim,” al-Mawsuah, 10:238-241.
75. See for details Mohammad Hashim Kamali, “Amnesty and Pardon in Islamic Law: with Special Reference to Post-Conflict Justice.” Islam and Civilisational Renewal, vol.6, no.4 (2015), pp. 442-467, at 447f
76. Muslim, Mukhtasar Sahih Muslim, p. 329, hadith no. 1209.
77.Wizarat al-Awqaf wa’l-Shu’un al-Islamiyyah(Kuwait), al-Mawsu’ah al- Fiqhiyyah, Vol. 42, pp. 205-231 at pp. 205-206.
78.Ibid., pp. 207-213.
79.Ibid., p. 217.
80.Ibid., p. 227.
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