Is Conventional ADR Alien to Islamic Law?

Alternative Dispute Resolution (ADR) is not a new concept which was introduced in the last century. But rather it is a rejuvenation of the conservative methods of dispute resolution which was inherent in the previous societies. The main objective of this paper is to prove that conventional ADR is not alien to Islamic law, but the modern ADR is specie of the Islamic ADR.

Introduction

During the last 20 years the world has observed the emergence of alternative dispute resolution or ADR as an alternative access to justice. The toolkit of ADR consist negotiation, mediation, conciliation, arbitration, ombudsman, expert determination and many other secondary and hybrid processes which has been formulated in time. The evolution of ADR was the result of the dissatisfaction of the traditional litigation method and judicial system which created vast number of negative effects globally. Today, ADR has become EDR- Effective Dispute Resolution and people praise it due to its ability to provide solutions by using different tools, rather than using one tool to fit all needs. From solving civil cases now it is advancing to unravel the mysterious criminal cases. Therefore, without any hesitation or regret we could say that in future decades ADR would be the dominated method of solving disputes in the world.

ADR processes are not newly created, but the truth is that it has been rediscovered again. It is a well known fact that people of early civilizations, like Muslims, Chinese and Hindus has been using the ADR processes to settle their disputes and it is today that once again the human civilization realized the merits of these processes and decided to adopt them again.

More than 1400 years ago ADR methods has been used by Muslims to settle their differences amicably and the methods of ADR has been mentioned in the sources of Islamic law and these methods has been encouraged to use. This is because Islam is a religion which adores peace rather than fighting and loves compromise rather than confrontation.

This paper will analyze ADR in Islamic law and will try to explain each of the ADR method in the light of Islamic sources, i.e. Quran, Sunnah, Ijma’; to prove that conventional ADR is not alien to Islamic law.

ADR PROCESSES IN ISLAMIC LAW

Islamic law contains the following ADR processes;

i) Sulh (Negotiation, mediation/conciliation, compromise of action);

ii) Tahkim (Arbitration);

iii) Med-Arb (A combination of Sulh and Tahkim);

iv) Muhtasib (Ombudsman);

v) Informal justice by the Wali al Mazalim or Chancellor;

vi) Fatwa of muftis (expert determination);

Each of these methods would be analyzed seperately.

Sulh (Negotiation, mediation/conciliation, compromise of action)

Sulh literally means “to cut off a dispute” or “to finish a dispute” with the help of a neutral third party or directly. Arbitration is governed by different regulations; therefore arbitration does not come under Sulh.

Sulh include negotiation, mediation or conciliation and also compromise of action, which in other legal systems is not included in the definition of ADR.

The origin of Sulh is found from the following two verses of holy Qur’an;

The believers are but a single Brotherhood: So make peace and reconciliation between your two (contending) brothers: And fear Allah that ye may receive Mercy [1] .

If two parties among the Believers fall into a quarrel make ye peace between them: but if one of them transgresses beyond bounds against the other then fight ye (all) against the one that transgresses until it complies with the command of Allah; but if it complies then make peace between them with justice and be fair: for Allah loves those who are fair (and just) [2] .

These verses put lot of stress on the importance of amicable settlements of disagreements on just and fair manner and guarantee heavenly blessing to those who do so. There is another verse in the holy Qur’an which legalize undue concealment, which is otherwise disapproved, being disregarded by Allah for the sake of reconciliation. In Qur’an Allah says;

In most of their secret talks there is no good: but if one exhorts to a deed of charity or justice or conciliation between men (secrecy is permissible): to him who does this seeking the good pleasure of Allah We shall soon give a reward of the highest (value) [3] .

Other than this, prophet (SAW) also encouraged sulh. The following are the traditions of him supporting Sulh.

It is Narrated byUm Kulthum bint Uqba that she heard Allah’s Apostle saying, “He who makes peace between the people by inventing good information or saying good things, is not a liar. [4] ”

The above mentioned hadith clearly reveals the extent in which Islam favours reconciliation. In another hadith prophet also mentioned the reward waiting for those who make sulh between people. It is reported in Sahih al Bukhari that Abu Hurariah narrated that Allah’s Apostle said: ‘There is a sadaqah to be given for every joint of the human body and for every day on which the sun rises there is a reward for the sadaqah for the one who establishes Sulh and justice among the people. [5] ’

The prophet also upheld the cause of sulh even when certain derogatory remarks were made against him. It is narrated by Al Bara bin Azib that When Allah’s Apostle concluded a peace treaty with the people of Hudaibiya, Ali bin Abu Talib wrote the document and he mentioned in it, “Muhammad, Allah’s Apostle.” The pagans said, “Don’t write: ‘Muhammad, Allah’s Apostle’, for if you were an apostle we would not fight with you.” Allah’s Apostle asked Ali to rub it out, but Ali said, “I will not be the person to rub it out.” Allah’s Apostle rubbed it out and made peace with them on the condition that the Prophet and his companions would enter Mecca and stay there for three days, and that they would enter with their weapons in cases. [6]

There are also instances where prophet (SAW) tried to mediate between two parties to achieve peace. It is narrated by Sahl bin Sad that once the people of Quba fought with each other till they threw stones on each other. When Allah’s Apostle was informed about it, he said, “Let us go to bring about reconciliation between them.” [7]

It is narrated by Aisha that once Allah’s Apostle heard the loud voices of some opponents quarreling at the door. One of them was appealing to the other to deduct his debt and asking him to be lenient but the other was saying, “By Allah I will not do so.” Allah’s Apostle went out to them and said, “Who is the one who was swearing by Allah that he would not do a favor?” That man said, “I am that person, O Allah’s Apostle! I will give my opponent whatever he wishes.” [8]

The companions of the prophet (SAW) also encouraged sulh. For example in the famous letter written by Umar bin al Khattab to Abu Musa al Asharion the latter’s appointment as a judge contained several principles relating to sulh:

All types of compromise and conciliation are permissible except those which makes haram anything which is halal and a halal is haram.

In the above letter, the part relating to haram and halal in compromise is based on a hadith of the prophet: It is narrated by Aisha that Allah’s Apostle said, “If somebody innovates something which is not in harmony with the principles of our religion, that thing is rejected.” [9]

The only limitation in Islamic law regarding sulh is that no compromise could be made relating to the things involved in the right of Allah.

Tahkim (Arbitration)

The validity of arbitration has been recognised by the four sources of Sharia; the Quran; Sunnah (the acts and sayings of the Prophet Mohamed (peace be upon him)); Ijma’ (consensus of opinion) and Qiyas (reasoning by analogy).

The holy Quran provides for arbitration on several occasions. The Quran says: “If you fear a breach between them (the man and his wife), appoint (two) arbitrators, one from his family and the other from her’s; if they both wish for peace, Allâh will cause their reconciliation. Indeed Allâh is Ever All Knower, Well Acquainted with all things”[4: 35]. The other verse of the Quran that in support of arbitration is as follows: “But no, by your Lord, they can have no Faith, until they make you (O Muhammad SAW) judge in all disputes between them, and find in themselves no resistance against your decisions, and accept (them) with full submission”.

Prophet Mohamed (peace be upon him) also recognized and practiced arbitration. He appointed arbitrators and accepted their decisions. He also acted as arbitrators in several occasions to resolve disputes arising between individuals and tribes. He acted as an arbitrator in the dispute between several Arab tribes regarding which of them will have the honor of lifting and placing the Black Stone after rebuilding the Kaaba. He put the Black Stone in his outer garment and judged that every tribe chooses a representative and that all the representatives carry the garment together to the place of the Stone. He also chose arbitration to settle the dispute between himself and Bani Anbar.

The leading case where arbitration used by the companions of the Prophet (peace be up on him) is the famous political case between the Caliph “Ali Bin Abi Taleb” (the fourth rightly guided Caliph) and “Muawya Bin Abi Sofian” (the governor of Assham which is Syria, Lebanon, Palestine and Jordan). Muawya had refused to recognised Ali Bin Abi Taleb ‘s right to the Caliphate. The dispute led to a civil war between the two parties. During the fighting, Muawya Bin Abi Sofian demanded the settlement of their dispute through arbitration. Ali Bin Abi Taleb accepted that and each party appointed his arbitrator. The two arbitrators were to decide who would be the Caliph. The two arbitrators were nominated in the arbitration agreement document and drafted arbitration agreement specifying the dispute. The procedure, duration of the arbitration, place of arbitration and the applicable law were fixed in the arbitration document.

However, there was a debate between classical Muslim jurists over the concept of arbitration. This division of opinion between Islamic Law scholars over the concept of arbitration mainly because resort to arbitration by “Caliph Ali Ben Abi Taleb” in his dispute with “Muawya Bin Abi Sofian” (the governor of Syria), was opposed by the Khawarege (the people who opposed the resort to arbitration by Ali Bin Abi Taleb). On the other hand, it has to be mentioned that Western Law systems (English Law and different European Laws) had the same controversy accompanied the evolution of arbitration [10] .

According to one view, arbitration is a form of conciliation, close to ‘amiable composition’, which is not binding on the parties. Those favoring this view hold that the arbitrator’s decision is neither binding nor final, unless it is accepted by the parties. Thus arbitration dose not have any jurisdictional nature, but close to conciliation. Proponents of this view supported their view by the following verse form the Quran 4:35.

The second view is that Sharia knew arbitration in its modern sense. This view is based on the following verse from the Quran:

“Verily! Allâh commands that you should render back the trusts to those, to whom they are due; and that when you judge between men, you judge with justice”[4:58]

To them if one is authorized to judge, one is authorized to make judgments with a binding decision.

It should be noted that one of the elements that participated in the confusion and misunderstanding as to the difference between arbitration and conciliation in Islam between some scholars, is that Islamic Law used the word “HAKAM” to describe different meanings. [11] The word refers in its strict sense to a person who is ‘authorized’ in a specific mission. Accordingly, the word can be used in its broad sense to refer to an authorized person to dispose of rights, to settle differences between the disputants by suggesting settlement or helping them to reach it, or by issuing a binding decision to settle their dispute. The agreement of the parties determines the type of the authorization in each case. As a result of the differences between scholars in understanding the meaning of the word in its terminological sense in Islamic Law, some writers thought that Islamic Law knew only two types of arbitrations, arbitration that leads to binding decisions, and arbitration leads to non-binding decisions. The careful and thorough study proves that Islamic law knew the difference between conciliation [12] (that ends with a non binding decision) and arbitration that leads to binding decisions. Conciliation is permitted under Islamic Law in civil, commercial, family and other matters as long as they do not permit acts against God’s commands or the matter settled by conciliation falls in the ambit of rights of God, i.e., crimes and their sanctions.

Arbitration under the Four Major Islamic Schools

Although arbitration is recognized by all sources of Sharia, it did not receive close attention in the doctrinal writings of the four major Islamic Schools. This might be attributed to the fact that Islamic Judiciary was sufficient and developed enough to provide suitable solutions to all types of problems which arose from the social life of that time. Although arbitration is recognized by the four major Islamic Schools as a substitute for the ordinary courts, every School insists on a certain theme on this subject. This part of this paper tries to focus briefly on what each School holds as to arbitration.

 The Hanafi School

The scholars of this school emphasize the contractual nature of arbitration and hold that arbitration is legally close to agencies and conciliation. They hold that an arbitrator acts as an agent on behalf of a disputant who had appointed him. The Hanfi School stresses the close connection between arbitration and conciliation. Thus, to them an arbitral award which closer to conciliation than to a court judgment, is of lesser force than a court judgment. Nevertheless, under this school the disputing party cannot be relived from being obligated to abide by the award because the agreement to resort to arbitration binds the parties like any other contract.

 The Shafi School

According to the Shafi School arbitration is a legal practice, whether or not there is a judge in the place where the dispute has arisen. [13] However, according to this school, the position of arbitrators is inferior to that of judges since arbitrators under this School are liable to be revoked up to the time of the issuance of the award.

 The Hanbali School

Under the Hanbali School, a decision made by the arbitrator has the same binding nature as a court’s judgement. Thus the award made by an arbitrator (who must have the same qualifications as a judge) is imposed upon both of the parties who chose him [14] .

 The Maliki School

The Malikis have a great trust in arbitration that they accept that one of the parties can be chosen as an arbitrator by the other disputing party. This is explained by the fact that one relies upon the conscience of the other party. Unlike the other three schools, this School stresses that an arbitrator cannot be revoked after the commencement of the arbitration proceedings.

The Main Features of Arbitration under Islamic Law

In order to understand the concept of arbitration under Islamic Law, the main features of arbitration should be considered.

 The Arbitration Agreement

According to the authorities of all Schools of Islamic Law the arbitration agreement is the principal basis for conferring upon the arbitrators the power to issue binding decisions. The use of arbitration as a method for the settlement of dispute under Islamic Law depends upon the full and valid consent of the parties.

Whether the arbitration agreement should be in writing or oral is not discussed by any school in Sharia. However, in the leading case between the Caliph “Ali Bin Abi Taleb” (the fourth rightly guided Caliph) and “Muawya Bin Abi Sofian”, the two parties agreed to appoint two arbitrators in written deed which stated the names of the arbitrators, the time limit for making the award, the applicable law and the place of issue of the award [15] . In this dispute the parties used arbitration to settle their dispute, but the arbitration clause was not effective. The question which may arise in this respect is whether arbitration clause, which refers future disputes to arbitration, is valid under Islamic Sharia. The doctrinal writings of the four Sharia Schools deal with the use of arbitration in existing disputes. Therefore, the doctrinal writings of the scholars of the Sharia Schools are silent about arbitration clauses, which refer future dispute to arbitration. This issue has been a subject of controversy among some classical scholars of Sharia. Whatever the case is, ignorance of Sharia in early times does not mean that arbitration clauses are prohibited. According to the principle of freedom of contracts under Islamic Sharia, parties are free to include any clause in their contract as long as it dose not permit acts against God’s commands, such as the incorporation of ‘interest’ (Riba) clauses. Arbitration clauses were ignored by the early Muslim scholars because of the fact that the commercial conditions at that time did not require the use of such clauses. It has to born in mind that the answers given by Islamic Law to arbitration problems have been given before the commercial and economic evolution had reached today’s stage. However, they are not unalterable and do not constitute an exception to the universal rule that ‘the law must change over the times’. Indeed, Sharia is not static and rigid and it is only bound by the Quran, Sunnah, Ijma’ and Qiyas (analogy). Arbitration clauses are necessary to the contract, especially in international contracts and they are beneficial to both parties as they enable the justice to be done more quickly. Furthermore, since arbitration clauses are not contrary to public policy; (namely do not permit acts against God’s commands), they should be considered valid under Sharia.

A division of opinion between the authorities of Sharia prevails over whether the consent of the parties t go to arbitration would be required only at the time of the agreement or should the consent continue until the issuance of the award by the arbitrator(s). Some classical Muslim jurists question the binding force of arbitration agreement [16] . To them, arbitration agreements are revocable options rather than contractual undertakings. This idea was incorporated in Article 1848 of Al-Majala which consisted codifications of rules of arbitration to be applied in the Ottoman Empire.

This view has been challenged by contemporary Muslim scholars. According to them, this view is, obsolete, superficial and ill-founded [17] . The modern trend in Islamic law is to consider the arbitration agreement binding upon the parties once it has been entered into. Parties would also be bound by the decision of the arbitrator(s). Authorities on the subject proved that this view is the direct application of the general principles in Islamic Law. It is the direct application of the Quran when it states “…and fulfil every agreement, for every engagement…” [18] This meaning was stressed by the Prophet Mohamed in a famous Saying; he said, “Believers should honour their engagements…”. It may be concluded that the view that receives mostly full approval and application in the legal profession is that arbitration agreements are binding and no party is permitted to withdraw from any agreement he concluded with others by his own free and valid will.

Finally, as to the formalities of arbitration procedures relating to the place of arbitration as appointment of arbitrators the Koran is silent. Accordingly, they are within the discretionary powers of the parties.

 Arbitrators

Once the disputing parties have agreed to resolve their dispute by arbitration, they should reach an agreement on the appointment of the arbitrator(s). The parties may specify the arbitrator(s) by name or they may define the arbitrator(s) by certain position without specifying the name. If the parties agree on arbitration but did not appoint the arbitrator(s), the arbitration may not take place. The four schools of Islamic Sharia are silent on the possibility of appointing arbitrators by a third party. However, there is nothing under the Sharia prohibits the appointment of the arbitrator(s) by a third party. Thus it is left to the entire freedom of the contracting parties to decide whether they want the appointment to be made by a third party or not.

According to the four Islamic Law Schools, there are no restrictions on the number of arbitrators. The matter is left to the parties to arbitration agreement to appoint one or more arbitrators and the number may be odd or even. However, if each party appoint an arbitrator, and the two arbitrators authorized to appoint a third arbitrator, the majority rule may be applied if the parties give their consent to that.

As an arbitrator is deemed under the four Sharia Schools to exercise a judicial function, he must have the same qualifications as a judge. This qualification can be summarized as follows.

The arbitrator must posse the foregoing qualifications continuously from the date of the commencement of the arbitration until the rendering the award.

As to the revocability of arbitrators by one of the parties, the Maliki School prohibits revocation after the procedure has started. The Shafi and Hanafi schools permit the revocation of arbitrators at any time before rendering the award. However, the view that receives mostly full approval and appreciation in the legal profession is the view of the Maliki School, which provides that the appointment of an arbitrator is irrevocable after the commencement of the procedure except by mutual agreement of the disputing parties. This view seems to be the most appropriate because it meets the requirements of international business community.

 The Applicable Law

In disputes where one party is a non-Muslim, choosing a non-Islamic legal system is recognized by the Maliki, Shafi and Hanbali Schools as valid. Furthermore, several Muslim countries became parties to the New York Convention and by doing so, they approve the delocalization of arbitration agreements.[31] However, recourse to a non-Islamic legal system is valid as long as the rules to be applied on the contract do not violate express provisions of Quran or Sunnah.

 Arbitrability According to Islamic Law

According to the four Schools of Islamic Sharia arbitration is not authorized in maters relating to the “Rights of God”.The said area is quit large, covering criminal law as well as patrimonial rights. The Qur’an also excludes certain subjects such as guardianship on orphans, which must obligatorily be referred to courts of law. This area resembles the area of public policy in modern laws. Apart from the subjects excluded above, any other dispute should be just as cable of being resolved by arbitration as by a national court. Accordingly, disputes arising out of commercial transactions are arbitrable.

 The Arbitral Award and its Enforcement

According to the Maliki, Hanbali, Hanafi and the majority of the “Shafi’is” [19] an arbitral award is as enforceable as a judge’s judgement. However, the intervention of a judge is necessary, as the arbitrator has no authority with respect to enforcement of arbitral awards. The Maliki, Hanafi, Hanbali and the majority of Shafi’is stress that the judge who has been required to enforce an arbitral award, cannot deny the enforcement simply because it dose not conform to his opinion. Thus according to Sharia Law an arbitral award has a jurisdictional character and it is binding and enforceable. Moreover, a judge when enforcing an arbitral award is not authorized to review the merits of the disputes or the arbitrator’s reasoning. The judge’s duty is limited to examining some formal matters, such as the existence of a valid arbitration agreement and whether the award deals with the disputes subject matter. However, a judge may set aside an arbitral award if it is inconsistent with Shari’s public policy or if the award contains a flagrant error or injustice. It should be noted that the judge’s power to set a side an arbitral award on the latter grounds is not a second level of jurisdiction but a form of supervision over the award.

As to the enforcement of foreign arbitral awards, the attitude of Sharia is dependant on the bilateral and international conventions to which the party states are committed. Moreover, the Muslim judge may set aside a foreign award or refuse enforcement if the award violates the general spirit of Sharia and/or its sources.

Med-Arb (A combination of Sulh and Tahkim)

Verse 35 of Surah al Nisa of the Quran mentions conciliation along with arbitration:

If ye fear a breach between them twain appoint (two) arbiters one from his family and the other from hers; if they wish for peace Allah will cause their reconciliation: for Allah hath full knowledge and is acquainted with all things.

From the above mentioned verse it is clear that the job of the arbitrator is first to mediate and then if it fails only he should start arbitrating. Article 1851 of the Majalle also says this.

This proves that in Islam med-Arb is also recognized and used.

Muhtasib (Ombudsman)

Muhtasib is a municipal officer responsible for public morals and regulation of markets whose job is equivalent to the job of an ombudsman. The Muhtasib was certainly in charge of weights and measures, but he was also in charge of standards generally – even standards of public behavior. He was, moreover, backed by a body of inspectors who were empowered to make regular checks on all the shops in the city, and to arrest offenders. We know a good deal about the precise functions of the Muhtasib from a series of handbooks outlining the duties of the office, which have survived mostly from Islamic Spain and which cover several centuries.

The basis of Muhtasib is found in the Quran:

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. [20]

Ye are the best of peoples evolved for mankind enjoining what is right forbidding what is wrong and believing in Allah. If only the People of the Book had faith it were best for them; among them are some who have faith but most of them are perverted transgressors. [21]

They believe in Allah and the Last Day; they enjoin what is right and forbid what is wrong; and they (hasten in emulation) in (all) good works; they are in the ranks of the righteous. [22]

The believers men and women are protectors one of another: they enjoin what is just and forbid what is evil: they observe regular prayers practice regular charity and obey Allah and His apostle. On them will Allah pour His mercy: for Allah is Exalted in power Wise. [23]

“O my son! establish regular prayer enjoin what is just and forbid what is wrong: and bear with patient constancy whatever betide thee; for this is firmness (of purpose) in (the conduct of) affairs. [24]

Furthermore Prophet himself appointed Sa’aad ibn al Aas Ibn Umayyah as muhtasib of Mecca and Umar Ibn al Khattab as that of Medina. According to Imam Mawadi the basic job of muhtasib is to investigate the complaints regarding weight and measure, adulteration in the substance sold or the price for an item sold and non-payment of debt even while possessing the ability to repay it.

One of the most interesting of the Muhtasib’s areas of responsibility was public health, a matter in many ways more important and harder to control than the relatively simple question of ensuring fair weights. He and his inspectors, therefore, fought a continuing battle to keep the streets clean – at least in the more important parts of the town – and to regulate dumping. And that was only part of the job. Because the importance of clean food and drink in the prevention of disease was recognized by Muslim science, the ordinances governing food and drink were severe and the Muhtasib, enforced them strictly. All slaughtering had to be carried out in public slaughterhouses; to prevent the people being cheated; goat’s flesh was kept separate from mutton and marked yellow with saffron, the tails being left on the carcasses until the last moment to help identification.

The Muhtasib also inspected public eating houses. He could order pots and pans to be re-tinned or replaced; all vessels and their contents had to be kept covered against flies and insects. (In Iran, the house fly had been suspected as a spreader of disease as early as 1000 B.C., and there were strict injunctions even then against flies touching food and drink.) Water was sold to passersby using little jars, and it was strictly forbidden to d