Table of Contents
ü Introduction………………………………………………………………….Pg. 3
ü Religious Sanctity Attaching with the ADR
Processes in Islamic Law………………………………………………Pg. 3
ü The All Persuasive support that ADR finds in Islamic law…………Pg. 5
ü Settlement is embedded in Arbitration………………………………Pg. 6
ü Amiable Composition comes within the Inherent Powers of an
Arbitrator………………………………………………………………Pg. 6
ü Revocability of the Arbitration Agreement…………………………Pg. 8
ü Lots of Problems are provided by not allowing “Future”
Disputes to be Arbitrated…………………………………………….Pg. 8
ü A very Special kind of “Expert Determination” is Provided in
the form of Fatwa of Mufti………………………………………….Pg. 9
ü Muhtasib or Ombudsman is as old as Islam Itself…………………Pg. 10
ü Conclusion……………………………………………………………Pg. 12
ü Bibliography………………………………………………………….Pg. 13
Introduction
It is a familiar belief that ADR (Alternate Dispute Resolution) has emerged and originated in the West over the last few decades. But opposing to this belief, such ADR processes like Negotiation, Mediation, Arbitration, Expert Determination, Ombudsman and Med-Arab are as old as Islamic law itself, that is, almost 1400 years old. All of these have not only been mentioned in the Quran but were practiced ever since the times of the Prophet, who was a great ally of the idea of amicable settlement of disputes. Numerous historic evidences are on hand in support of this statement.
A look at ADR as a whole in Islamic law and also at various ADR processes individually brings out certain peculiar features which grant individuality to it in the Islamic system of law.
A brief discussion of each of these features is given below:
- 1. Religious Sanctity Attaching with the ADR Processes in Islamic Law
Shari’ah or Islamic law is not only law but a code of life for the Muslims surrounding
his entire life from the crib to the grave. The provisions of this law are either revealed
(Quran) or based on the Prophet’s Sunnah, (saying, doings or his tacit approvals), or
Jurist-made. The first of these two, that is, those which are based on the Quran or Sunnah are regarded as the most holy and therefore most compliance-worthy. As the ADR processes in Islamic law are based on the Quran and Sunnah, so a religious sanctity demanding indisputable compliance comes to be attached with it, conferring on it a status which is exclusive and unmatched among the legal systems of the world. Once told of the real source of a particular ADR process, a Muslim need not be influenced any further of its realistic worldly worth; he will comply, regarding it as a religious commandment.
It is clearly stated in the Quran that “this is a Book which (Allah) has revealed as a
blessing: so follow it and be righteous, that ye may receive mercy”. A Muslim again
comes across in the Quran such verses which tell him about objects and benefits of the
divine revelations. For example, Quran says: “Verily in this (Quran) is a message for
people who would (truly) worship Allah”. And describing the objective of Shari’ah,
Quran declares: “O mankind, a direction has come to you from your Lord; it is a healing
for the ailments and guidance”. About the sanctity of the Prophetic pronouncements, we have a declaration from Allah Himself in the Quran that “Nor does he (i.e., the Prophet) say of his own desire. It is no less than inspiration sent down to him”.
Sunnah of the Prophet has become a source of inspiration for every Muslim and a pillar,
second only to the Quran, on which rests faith and life of a Muslim. No wonder, a
Muslim always turns to the Quran and Sunnah for answers to his every problem. The path laid down in the Quran is to be followed by a Muslim, as commanded by Allah
in the Quran:
“Verily, this is My Way leading straight: follow it; follow not (the other) paths: they will scatter you about from His (great) Path. Thus doth He command you, that ye may be righteous”.
The Islamic literature is full of such writings based on Shari’ah, which explains to
Muslims the importance of adhering to the Quran and Sunnah. It is therefore correct to
say that to adopt and practice ADR processes is like a religious or sacred obligation for a Muslim. Once he becomes aware that these are based on the Quran and Sunnah. Today, unfortunately, a majority of Muslims are unaware of this fact.
- 2. The All Pervasive Support that ADR Finds in Islamic Law
A famous letter which the second caliph of Islam – Umar bin Khattab – wrote to Abu Musa Al-Ash’ri after appointing him as a qadi (judge) contained rules to guide him in
deciding cases. One of these rules spelled out the wide span of coverage of amicable
Settlement of disputes. The exact words of Umar are: “All types of compromise and conciliation among Muslims are permissible except those which make haram (unlawful) anything which is halal (lawful), and a halal as haram.”
This principle is directly based on the saying of the Prophet that “if somebody innovates
Something which is not in harmony with the principles of our religion, that thing is
Rejected”.
In fact the original support that the Quran gives to the peaceful settlement of disputes
forms the basis of the widespread support that the idea finds among Muslim. For example, the Quran says:
“The believers are but a single brotherhood, so make peace and reconciliation (sulh) between two (contending) brothers; and fear Allah, that ye may receive mercy”.
The Quran was here repeating the same thing it already stated in another Ayat of the same verse, which is in the following words:
“If two parties among the believers fall into a quarrel, make ye peace between them…..with justice, and be fair: for Allah loves those who are fair (and just)”.
The Prophet was so supportive of the amicable settlement of disputes that he is reported to have expressed his readiness to condone the use of an hyperbole or mis-statement if it is for the sake of sulh (peaceful settlement). The Hadith is as follows:
“Narrated Um Kulthum bint Uqba that she heard Allah’s Apostle (P.B.U.H) saying ‘He who makes peace (sulh) between the people by inventing good information or saying good things, is not a liar”.
This support is exceptional in the sense that it is not found in any other legal system, except to some extent in the present Chinese Constitution and the teachings of Confucius.
3. Settlement is Embedded in Arbitration
One of the discussions among the early Islamic jurists was regarding the meaning to be
given to arbitration. Should it be considered as an attempt at ‘conciliation’ or something
akin to ‘judicial proceeding’ where award is binding as a judgment. The Hanafis and
Shafiis favoured the first view, while the Malikis and Hanbalis favoured the later view.
During the course of centuries, a synthesis of the two views evolved the law and it stands somewhere in the middle. That is, it is a duty of the parties and the arbitrator to strive for the settlement during the entire course of arbitral proceedings, if no settlement comes through, then the award given by the arbitrator is binding, but only if ratified by a qadi (judge).
This is a very healthy attitude, because the aim of arbitration is to settle a dispute and not to fight a legal battle. A settlement is always preferable over an imposed award.
4. Amiable Composition Comes Within the Inherent Powers of an Arbitrator
Amiable composition is a principle which allows the arbitrator to take consideration his
own sense of fair play, justice and equity in making the award. Islamic law of arbitration
allows it, so also the civil law, but common law rejects the concept and compels the
arbitrator to follow the law strictly, even if it results into inequity and unfairness. The
principle in Islamic law is based on a Quranic verse which says:
“Allah doth command you
To render back your Trusts
To those who, they are due;
And when ye judge
Between man and man,
That ye judge with justice…..”
According to Abdul Hamid El Ahdab, a leading Arab authority on arbitration in Islamic
law,
“The prevailing opinion in Moslem law derived from the (above) text is that arbitrators must settle disputes according to the rules of fairness and with respect to the public order. Their position is rather close to that of the ‘amiable compositieur’ in, say, French law, who has to settle a dispute in an analogous spirit to that which the parties would have had, had they been able to agree on a compromise. However, judging fairly does not mean that the arbitrator does not have to apply the rules of Muslim law when the legal principles underlying the disputes are covered by these rules. Should no such rule exist, fairness guides the arbitrator in looking for the solution. The arbitrator must also take into account those principles in commercial matters, which (Al Ghazali in his Ihya Ulum al- Din, vol. 2, p. 79ff) has derived from the Quran and Sunnah under the
heading of ‘Good conduct in commercial matters’. These principles help the judge or the arbitrator when a (strict) direct implementation of the contractual provisions would seem unfair (due to change in economic circumstances and personal situation of each party), rendering the performance of contractual obligations unduely burdensome.
The recognition of the principle of amiable composition in the Islamic law of arbitration
nearly a thousand years ago, well before its adoption by the French law, or its recent
adoption in the UNCITRAL Model Law, due to its human nature and logical justification, is a unique feature of the Islamic law of arbitration. The arbitrator under Islamic law does not need an express written authorization from both the parties to use amiable composition, as required in the UNCITRAL Model Law.
5. Revocability of the Arbitration Agreement
Islamic jurists have not laid down any general theory of contract. Instead, they studied
individual contracts, like that of sale, mortgage, lease, etc. Any contact which relates not
to a specific contract was not given much consideration. These were left to be dealt with
by the parties as they wished, including revocation. As arbitration agreements do not fall within the scope of a specific contract, hence these are considered revocable, even
Unilaterally by a party.
Due to the inherent revocability of the arbitration agreement, either party may take the
dispute to the court for adjudication, instead of referring it to arbitration, without any fear
of stay of action. Because if the other party objects to judicial determination and insists
on arbitration, the party may revoke the arbitration agreement, making stay of action
meaning-less.
Even though the modern arbitration laws of the Arab world do not allow revocation of
the agreement without valid cause, yet it has to be admitted that the irrevocability of the
agreement is only a mixed blessing. In many cases where a party is compelled to submit itself to arbitration against its free choice, ends up creating every possible hurdle in the way of smooth conduct of arbitral proceedings and ultimately in the enforcement of the award.
6. Lot of Problems Are Avoided by Not Allowing “Future” Disputes to be Arbitrated
According to Article 1847-1850 of the Majallah Al Ahkam Al Adliyyah (Ottoman Civil
Code), which is based on the Islamic law, one of the requisites of a valid arbitration
Agreement is that the dispute to be arbitrated must have already arisen. Future disputes
cannot be arbitrated. Because of the uncertainty arising out of the contingency that a
dispute may arise or may not arise gives rise to gharar, a principle of Islamic law which
strikes down any provision which is subject to an uncertainty. This is why in Islamic law,
an arbitrator must be appointed by name. The attitude of Islamic law is: wait and see. Let the dispute arise. If parties at that given time are mutually agreeable to refer the dispute to arbitration, they may enter into an agreement, name the arbitrator and start the proceedings.
In case of future disputes, however, there may occur a very long gap between the time of entering into the agreement and the arising of the dispute. Meanwhile, either party may lose his zeal for arbitration, yet he is legally ‘forced’ into it with counter productive
consequences. This way, the prohibition imposed on the arbitration of future disputes
appears to be prudent. Sacrificing a little convenience may open up the possibility of big
gains.
7. A Very Special Kind of “Expert Determination” is Provided in the Form of Fatwa of Mufti
“Expert determination” is an ADR process in which the parties to a dispute seek the
expertise of an expert in making a neutral evaluation of the dispute and pronounce an
assessment of the relative merit of the cases of both parties. The assessment is not
binding but advisory in nature. Yet, keeping in view the knowledge of the expert and his
neutrality parties tend to accept the assessment as binding and settle their dispute
accordingly.
Fatawa given by the Muftis closely resembles with expert determination. Fatawa in
Islamic law are non-binding evaluative opinions given by a Mufti (juristconsult), regarding a specific issue affecting the whole of society (eg. birth control, etc) cloning,
transplantation of human organs, etc) or a specific individual problem affecting only two
a parties (eg. a business dispute, matrimonial problem, testamentary disposition, ect). Not everyone can act as Mufti, except those who have the same qualifications as a qadi.
Islamic history is full of cases in which thousands of problematic issues and disputes
were referred to Muftis and the answers given by them constituted a collection of
fatawas. In fact, fatawa have become an integral part of Islamic legal history, both past
and present. The earliest collection of Fatawa known as Kitab Al Nawazil was compiled
by Abu Layth al Sumaqandi, who died in 983 AD. And the latest collection is Fatawa
Abu Zahra published from Beirut in 1998. In many countries like Malaysia, there are
government constituted Fatawa Committees to give verdicts on matter of general interest for every Muslim. In still other countries like India, there are Dar ul Ifta constituted by the religious parties to give fatawa on voluntary basis. These have helped in resolving thousands of disputes among Muslims
8. Muhtasib or Ombudsman Is As Old As Islam Itself
The institution of Ombudsman has now become an integral part of the administration of
justice in many countries of the world. Ombudsman helps to take into cognizance such
public complaints against the government bureaucracy which are generally considered
outside the jurisdiction of courts.
This institution emerged in Sweden in 1809 and in England in 1967 through the
Parliamentary Commissioner Act. It is now considered as an important and integral part
of ADR.
In Islamic law, however, the institution of ombudsman in the form of Muhtasib finds a
mention in the Quran and hence is more than 1400 years old. Allah says in the Quran:
“Let there arise out of you
A band of people
Enjoining what is right
Forbidding what is wrong
And believing in Allah”.
This Quranic duty of “forbidden what is wrong” did not remain a theoretical idea. The
Prophet appointed two prominent persons as Muhtasibs: Umar bin Khattab for Madinah
and Sa’ad ibn Al A’as Umayyah for Makkah. According to the famous jurist Ibn
Taimiyyah, the Jurisdiction of the Mushtasib covered areas generally considered outside the scope of law courts.17 His duty is to keep an eye on public morals, to eliminate fraudulent practices of the traders and generally to ensure the goal health of the civil society.
“A separate department of Hisba Account taking), with full time Muhtasib, assisted by qualified staff (known as ‘Arifs and Amins) was introduced by Abbasid Caliph Abu Ja’afar al Manur in 157 AH (733 AD). The Institution of Hisba moved alongwith Muslims in the Western provinces of Spain and North Africa. Similarly the office of Muhtasib was
an important department during the rule of Fatamids, Ayyubids and Ottomans.
The institution of hisba remained in vogue during the entire Muslim period of History, though it has been termed differently in various regions. For example, in the Eastern provinces of Baghdad caliphate the officer in-charge was Muhtasib, in North Africa he was Sahib al-Suq, in Turkey, Muhtasib Aghasi and in India, Kotwal.
According to Mawardi, there are three types of complaints which a Muhtasib may
entertain:
i) Complaints concerning weights and measures;
ii) Complaints against ruination of various kinds and unjustifiable hike in prices of items sold; and
iii) Complaints against non-payment of arrears even while possessing the capability to repay it.
Conclusion:
The religious undertones of ADR and certain of its peculiarities have made it exceptional among the legal systems of the globe. Its immense coverage is difficult to be matched by any other legal system, so also the willingness of persons professing Islam to submit themselves to the idea of amicable settlement of disputes.
It is high time that the true nature of ADR shall be explained to and popularized amongst Muslims. The culture of court case imposed on Muslim societies during the colonial days must be replaced by the Islamic ways of amicable settlement of civil disputes, then progressively extend it to criminal disputes, like qisas (retaliation).
Bibliography
Quran, Surah Al An’am (6), ayat 155 [Abdullah Yusuf Ali’s translation]
Quran, Surah Al Anbiya (21), ayat 106
Quran, Surah Yunus (10), ayat 57
Quran, Surah Al Najm (53), ayat 3-4
Quran, Surah Al Amin (6), ayat 153
Sahih Al-Bukhari, vol. 3, p. 535, Eng. Tr. by Muhsin Khan (Dar Al Arabia, Beirut, n. d.)
Quran, Surah Al-Hujarat (49), ayat 10
Quran, Surah Al-Hujurat, (49), ayat 9
Quran, Surah Al Nisa (4), ayat 58
Quran, Surah Al Imran (3) ayat 104
17 Ibn Taimiyyah, Al-Hisab fi al-Islam wa Wazifat al Hukkam al-Islamiyyah (Hisbah in Islam and Duties of
Islamic Officals), (Madinah University, n. d). p. 10.
Muhammad Akram Khan, “Al-Hisba and the Islamic Law” in Ibn Taimiyyah, Public Duties in Islam,
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http://www.theminorityview.com/2011/12/adr-in-triple-talaq-rationalising.html
http://iis.ac.uk/view_person.asp?ID=17&type=auth