ALTERNATIVE DISPUTE RESOLUTION IN ISLAM: AN ANALYSIS

INTRODUCTION:
Understanding any religion begins with a detailed analysis of its customs and traditions, which play a
vital role in societal development and law framing. These unique customs and practices serve as major
sources of law, with their effectiveness in dispute resolution leading to their incorporation into formal
legal systems. In Islam, conflict resolution primarily relies on religious values, traditional reconciliation
rituals, and the principle of coexistence, forming the basis of Alternative Dispute Resolution (ADR).
Across societies, including Muslim communities, people often prefer extra-judicial methods like
negotiation, mediation, and arbitration over formal court processes for dispute resolution.
Historical background of ADR in Islam
Islam, for its practitioners, is more than just a religion; it encompasses a complete way of life,
incorporating religion, ethics, and a legal system. The term 'Islam' itself denotes submission to God, the
ultimate authority and sole lawgiver. The religion traces its roots back to the early 7th century when
Prophet Muhammad, a successor of Ishmael and son of Abrahim, received revelations, declaring himself
the Messenger of Allah. To guide Muslims' conduct, Prophet Muhammad revealed the Will of Allah in
Shariah.
Shariah, considered divine law, is derived from the Quran and the Sunna, with additional sources like
ijma, qiyas, and ijtihad. The Quran, containing 6,235 verses, serves as a principal reference, while the
Sunna comprises the life and actions of Prophet Muhammad documented in Hadith. Consensus (ijma),
where the Muslim community agrees, acts as a third source, while qiyas fills gaps in interpreting morality
when consensus is unattainable. Individual reasoning, or ijtihad, is also employed. Islam's two schools,
Shia and Sunni, interpret Shariah differently, contributing to diverse perspectives within the religion.
The regular courts and mechanisms for Alternative Dispute Resolution (ADR) are interlinked, with the
belief that countries following a traditional model of dispute resolution are more efficient. ADR holds
religious sanctity in Islam, originating from the Quran and embraced since the time of the Prophet. The
Quran emphasizes making peace and reconciliation between believers and settling disputes with justice.
Prophet Muhammad's preference for amicable settlement is evident in various hadiths, reflecting his
commitment to resolving conflicts in a fair and just manner. Islamic culture recognizes the value of
amicable settlement through processes like sulh (conciliation) and tahkim (arbitration), alongside the role
of courts and judges (qadi) in maintaining justice. Overall, the principles of conciliation and mediation are
emphasized in Islam, contributing to the understanding of dispute resolution within the context of the
religion.
Process of ADR in Islam
Sulh:
In Islamic jurisprudence, Sulh is the oldest form of dispute resolution, encompassing compromise,
settlement, or agreement between parties. It aims to terminate hostility among believers, promoting
peaceful coexistence within society. Sulh is like private settlements, where parties resolve disputes among
themselves without third-party interference. Its strength lies in flexibility, employing negotiation,
mediation, or conciliation. Supported by Quranic teachings and Hadith, Prophet Muhammad encouraged
settlements through Sulh, words of The Prophet “Making a settlement between Muslims is permitted,
except one which legalizes what is prohibited or prohibits what is legal”. Different types of Sulh exist in
Islam, including Permissible Sulh, Disapproved Sulh, Unfair Sulh, and Hanafi Division of Sulh, each with
specific considerations. The fundamental rule in Islamic law is that compromises should not infringe upon
Huquq Allah (divine rights), avoiding violations of Shariah provisions.
Sulh's procedural details are outlined in the Ottoman Code's Mejelle, specifically in articles 1531 to 1571.
These articles describe the Sulh process, emphasizing that any compromise should not extend to Huquq
Allah, such as hudud punishment, kaffarah, zakat, etc., ensuring compliance with Shariah provisions.
Islam recognizes Sulh as a crucial means of resolving disputes while upholding the integrity of religious
principles.
Tahkim (Arbitration):
Islamic law permits the resolution of disputes among its followers through arbitration when an amicable
solution proves elusive. Prophet Muhammad himself practiced and acknowledged arbitration, as
evidenced in the Quranic verse that advises appointing arbitrators in cases of potential conflict between
individuals. Notably, Islamic arbitration doesn't impose prior agreements or express written
authorizations, making it a flexible means of resolving private disputes.
Islamic arbitration extends beyond economic and commercial matters to encompass social, religious,
political, and private law affairs. In many Muslim nations, international arbitration based on applicable
Muslim law is exercised for cross-border disputes involving states, corporations, banks, and state
agencies. The process is not limited to specific types of disputes, but it does exclude physical punishment
or retribution. While in family law, mediation is favored over arbitration. Importantly, the consent of
parties is essential before the arbitrator issues a decision, and either party retains the right to withdraw
from arbitration before the award is pronounced. The procedure for tahkim, a specific form of arbitration,
is considered less technical, informal, cost-effective, and speedy compared to standard arbitration, with
the qualification that the dispute must have already arisen. However, future disputes cannot be subjected
to arbitration through tahkim.
Med-Arb
Med-Arb, another form of Alternative Dispute Resolution (ADR) in Islam, it derives its recognition from
Verse 35 of Surah al-Nisa. It is the combination of both mediation and arbitration. In Med-Arb, the
arbitrator first attempts mediation between parties, and if unsuccessful, proceeds to arbitration. This
process is distinct due to its dual nature, involving consensual mediation and the conclusive resolution of
arbitration. The procedure unfolds in two steps, initiating with mediation as the primary approach and
concluding with the finality provided by arbitration. Med-Arb is regarded as a distinctive feature in
Islamic ADR, offering a mixed and unique approach to dispute resolution.
Ombudsman (Muhtasib)
In Islam, the practice of the ombudsman, originating from Quranic verse 3.110, has been in existence
since the time of the Quran's revelation, making it roughly 1400 years old. The responsibility for the first
two ombudsmen in Makkah and Madinah was assigned to Umar bin Khattab and Sa’ad Umayyah by
Prophet Muhammad himself. Referred to as Muhtasib in Islam, the ombudsman's role extends to matters
of accountability (hisab), religious activities, salat-related affairs, and municipal concerns. Over time, the
institution of the ombudsman has become an integral part of the Islamic dispute resolution system, with
jurisdiction comprising the oversight of various professionals like teachers, traders, doctors, and
goldsmiths. In Pakistan, the Muhtasibs operate across all four provinces, extending their functional
network to include religious, civic, and community affairs.
Fatwa or Mufti
In certain countries, Fatwa is considered a form of Alternative Dispute Resolution (ADR), where legal
issues are resolved through religious rulings or scholarly opinions. In Islam, only qualified legal scholars,
known as muftis in Sunni schools or Ayatollahs in Shia schools, are empowered to issue fatwas. These
rulings, based on logic and reasoning (ijtihad), are advisory rather than binding. Historical instances
showcase complex situations being referred to muftis for resolution through fatwas.
Beyond fatwas, Islamic law recognizes less common ADR types: Wasita (intercession) and Wakalah
(representation). Both involve third-party intervention or agency to settle matters on behalf of principals,
as supported by Quranic verses. The flexibility of ADR methods aligns with Islamic principles of
equitable justice, providing parties discretion in resolving disputes outside formal court systems.
However, in Western countries with non-Muslim majorities, embracing ADR mechanisms based on
Shariah is unlikely. Yet, both in Muslim-majority nations and those with Muslim minorities, there is a
growing trend to resolve disputes in accordance with Islamic principles. In India, with its common law
tradition, further qualitative research is needed to comprehend the intricate legal interfaces with ADR
within the Muslim community.