ADR AND ISLAM

The bases of ADR in classical Islamic thought and theory are well known and may be found even before the advent of Islam in the practice of pre-Islamic communities in Arabia, in the text of the Qur’an, and in early (as well as contemporary) Muslim practice, inspired in part at least from these bases.

In the pre-Islamic milieu, as Toshihiko Izutsu has noted, tribal solidar­ity was a key virtue.^[378] As a result of this value and of the tribal organisation of the society, settlement of disputes through mediated means was encouraged especially within the tribe and in order to maintain the integrity of the tribal framework. Thus, conciliation and peace-making by elders, leaders and those in authority was practised through informal means,^[379] and these practices became part of the social ethic. By the time of the emergence of Islam, therefore, both the practice and the ethic of mediated settlement were known and established in the Arabian context.^[380]

With the advent of Islam, the values of mediated and amicable settlement were not just validated, but enhanced and reinforced by receiving Quranic sanction and thereby moving from being just prag­matic to participating in a richer notion of justice. The use both of amicable settlement involving mediation (sulh) and of arbitration (takhim) are noted in the Quran.

For example, the fourth chapter (sura) of the Quran, Sura An-Nisa, makes reference to the concept of sulh, saying:

And if a woman fears cruelty or desertion on her husband’s part, there is no sin on them both if they make terms of peace between themselves; and making peace (sulh) is better.

(Sura An-Nisa (4:128))

Likewise, the Quran also says:

The believers are nothing else than brothers (in the Islamic religion).

(Sura Al-Hujurat (49:10))

And:

So fear Allah and adjust (sulh) all matters of difference among you.

(Sura Al-Anfal (8:1))

Sulh therefore is presented as both a legitimate and even desirable form of settlement, and indeed the maxim that ‘amicable settlement is best’ (al-sulh khayr)^[381] or that amicable settlement is the best verdict (al-sulh sayyid al-ahkam) captures the notion that, as Ann Black et al. have put it, ‘Sulh is not only regarded as an accepted method of dispute resolution within the Islamic justice system, but for some is seen as the “ethically and religiously superior” means of settling disputes.’^[382]

So, too, the use of arbitrator and arbitration (takhim) is mentioned in the Quran. Thus, Sura An-Nisa also says:

If you fear 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 has full knowledge and is acquainted with all things.

(Sura An-Nisa (4:35))

It is important to note that, as one can see in the verse above, the arbitration was not conceived of, as it seems to be in the contemporary context, as distinct and independent from attempts at conciliation. Rather these processes could work simultaneously and in a complementary fashion. This is significant because it keeps to the fore the substantive value that the Islamic tradition gives to mediated arrangements even in the presence of other ‘ADR’ models of settlement.^[383]

The Quranic ethos of amicable settlement was complemented by early practice, including of the Prophet Muhammad himself, of mediation or mediation-cum-arbitration of disputes. Indeed, this too has a Quranic grounding from Quran 4:59, which says:

O you who believe, obey Allah and obey the Messenger and those charged in authority from amongst you.

The Prophet, as well as early leaders of the Muslim community after him, served as mediators for private and public disputes and spoke of the virtue of sulh. The limits of amicable settlement were also identified in this early period with the Caliph Umar (the second Caliph after the Prophet) and his view that amicable settlement was fine but it could not agree to make licit the illicit, or illicit the licit.^[384] It is useful to note that this practice continues today even in the context of the qadi (judges) courts. In his study of these courts in Saudi Arabia, Frank Vogel notes that ‘Saudi qadis (judges) show great skill as mediators and conciliators’ and that ‘In Saudi sharia courts, I was often told, “the great majority”, or “99 percent” of all civil cases end in reconciliation’.^[385]

Mediation, conciliation and arbitration have thus been a fundamental part - and not just a recent addition - of the pre-Islamic and Islamic systems of dispute settlement. They have been sanctioned by past and continuing practice and by the Quranic text and are thus considered virtuous parts of the ethos of the Islamic system of justice.

III.