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«Dispute Management: An Islamic Perspective Hyder Gulam1 INTRODUCTION “The recompense for an injury is an injury equal thereto (in degree): but if a ...»

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THE ARBITRATOR & MEDIATOR DECEMBER 2003

Dispute Management: An Islamic Perspective

Hyder Gulam1

INTRODUCTION

“The recompense for an injury is an injury equal thereto (in degree): but if a person

forgives and makes reconciliation, his reward is due from God: For God loveth not those

who do wrong.”2

This paper is about dispute management from an Islamic perspective. This is an area of

scholarship about which much has been written in Muslim literature. However, from the view of the West,3 this is largely an unknown entity,4 with very little academic writing in English.5 It may surprise many Western Dispute Management theorists and practitioners that Islam has had a system of dispute management in combination with formal adjudication that is nearly two thousand years old.

This paper will look at Islam and Dispute Management from both an historical and geographical overview. Although the religion of Islam is uniform across the Muslim world, there are differences due to culture in the manner in which dispute management systems are applied.6 For example, this paper will highlight dispute management as used in Malaysia, the use of ‘sulh’7 in Saudi Arabia and systems in place in Lebanon to deal with conflict. All have the same distinct similarities, such as the Kadi8, however this role is utilized differently, and has different dispute management powers in the different countries.

1 BA, BN, LLB, GDLP, Grad Dip Advanced Nursing, LLM, RN, FRCNA, Barrister and Solicitor and RAAF Legal Officer.

These thoughts are my own and do not reflect ADF policy. My thanks to Jennifer David, Alysoun Boyle and Jan MacGowan for their comments and assistance.

2 Sura XLII Shura or Consultation, Verse 40, The Holy Quran, translated and commentary by A. Yusuf Ali, 1993, Islamic Propagation Centre International, Singapore.

3 The term the ‘West’ is used as a shorthand to describe the mainly Anglo Saxon nations, including Australia, Canada, New Zealand, the United Kingdom and the United States of America. It is recognised that these nations have their own distinct dispute management systems, however in comparison to Islamic Dispute Management systems, the ‘Western’ systems have much more in common.

4 See for instance the comments by Justice Frankfurter of the United States Supreme Court, who stated the United States Supreme Court ‘is a court of review, not a tribunal unbounded by rules. We do not sit like a kadi under a tree dispensing justice according to considerations of individual expediency’, Terminiello v Chicago, 337 U.S. 1, 11 (1949) (Franfurter J., dissenting) as cited in Iqbal, Walid 2001, ‘Dialogue and the practice of Law and Spiritual Values: Courts, Lawyering and ADR: Glimpses into the Islamic Tradition’, Fordham Urban Law Journal, April, p.1035.

5 Ozcelik, Sezai 2000, ‘Nonviolent Action and Third Party Role in Islamic World’, available at http://www.geocities.com/tartarkirim/island4.html accessed 28 April 2003.

6 Boule (2001, p.6) argues that good mediation is problem solving with an awareness of cultural differences. Boulle defines ‘cultural’ in a broad sense to refer to differences based on class, gender, ethnicity, national origin, profession background, geography and the like. Boulle, Laurence 2001, Mediation – Skills and Techniques, Butterworths Australia.

7 Compromise, settlement or agreement between parties to a dispute.

8 Islamic judicial figure.

1 THE ARBITRATOR & MEDIATOR DECEMBER 2003

Modern developments and usage of Islamic Dispute Management will also be highlighted in this paper. Just as the West can learn a lot about Islam, Muslim countries can also derive a great deal from the recent development of dispute management, its practices and processes, from the West. This is very similar to the ideas about Asian (Chinese) Dispute Management systems, which are evolving from their Confucian roots due to their contact with the West.9 This paper will also attempt to posit a view on the future developments of dispute management in the Islamic system.

Buckley (1995) provides sound advice about negotiating with people from another culture: “it is advisable, indeed imperative to learn as much as possible about the mores and attitudes of that culture”10. By extension, this statement can be applied to different religions, such as Islam, where an understanding of the different legal tenets can provide a distinct advantage in negotiations, be they commercial or political.

Co-opting the arguments used by culturalists such as Professor Yuan (1996), religion is similar to culture in that it is of significance to the understanding of dispute management.

Culturalists often maintain that ignoring culture is a principal cause of breakdown of negotiations.11 Islam has a number of similarities with oriental cultures, which differ from Western cultures. Some of these similarities include the structuring of relationships, managing disputes, and the prominence of social consensus, moral persuasion, and attaining balance in human relations.12 In contrast, there is an emphasis in Western culture upon precision in documentation and the application of principles of legality that govern the structuring of relationships.13 In addition, there is a tendency to emphasise a more adversarial approach to resolving disputes, and to define personal problems and social troubles in terms of legal rights and obligations. These contrast with non-Western values, where there is a preference for ‘friendly negotiations or consultation’ as opposed to litigation.14 While outside the scope of this paper, it is recognized that what are considered Western values may have little in common with the dominant Western religion, Christianity. Behrens (2003) in his paper on ‘Church dispute mediation’ states that dispute management techniques such as mediation are not a modern phenomena, but instead a concept which permeates the Bible. Mediation has been used throughout the 2,000 years of church history. As Behrens illustrates, mediators spoke directly to the parties in dispute, as opposed to intermediaries such as lawyers. This according to Behrens, reflected the direct relationship Christians had with their Lord.15 Essentially, the proposition is that modern-day Western values, especially legal methodology, are far removed from religious values.16 Thus, the different religious based 9 Thirgood, Russell, 1999, ‘Dispute Resolution Chinese Style – The Influences’, Australasian Dispute Resolution Journal, November, pp.272.





10 Buckley, Ross P. 1995, ‘Cross-Cultural Commercial Negotiations’, Australian Dispute Resolution Journal, August, p.181.

11 Yuan, Lim Lan P. 1996, ‘Impact of Cultural Differences on Dispute Resolution, Australasian Dispute Resolution Journal, August, p.197.

12 Ibid.

13 Ibid.

14 Ibid.

15 Behrens, James 2003, ‘Church Dispute Mediation’, Australasian Dispute Resolution Journal, Vol.14, p.29.

16 This is due to the separation of the Church and State, as a result of the dispute in the Middle Ages between the Monarchs of England and the Church. See BBC: ‘History – Church and State’ at http://www.bbc.co.uk/history/state/monarchs_leaders/henryII_law01.shtml.

–  –  –

dispute management systems may have much in common due to their emphasis on morality, divine justice and spirituality.17

Dispute Management & Religion – More than Cross-Cultural Negotiations:

“One of the most important findings of cross-cultural conflict resolution research is that religion is a perennial and perhaps inevitable factor in both conflict and conflict resolution. Religion, after all, is a powerful constituent of cultural norms and values, and because it addresses the most profound existential issues of human life (e.g., freedom and inevitability, fear and faith, security and insecurity, right and wrong, sacred and profane), religion is deeply implicated in individual and social conceptions of peace.”18 The above comments by Said and Funk highlight the integral importance of religion in dispute/conflict management in many non-Western cultures. Western dispute management is exclusive, and implies that “approaches based on non-Western sources, or even religious precepts, for that matter, are dangerous or somehow invalid”.19 According to Said and Funk, the increasing importance of protracted ethnic and religious conflicts has influenced a number of theorists that the religious and cultural aspects of conflict and its resolution are paramount.20 Said and Funk define religion “as a path of ultimate transformation, comprised of interconnected systems of symbols and guidelines”21. These profile both individual and group subconscious via which social practices and interactions are instilled with significance and meaning. This framework forms the basis of individual and group identity, “providing the shared normative foundation that makes harmonious social interaction possible as well as meaningful”.22 Dispute management and conflict resolution do more than deal with material clashes of interest; Said and Funk state that it articulates “social reintegration, restoration and redemption, existential security, personal transcendence and transformation”.23 Dispute management perspectives and techniques that do not incorporate appropriate and relevant paths of ‘redemptive transformation’ are less likely to yield enduring or effective resolution.

17 In essence, ‘treating others as one would want to be treated suggests both substantive and process values informed by both "spiritual respect" and "secular justice" concerns’. Menkel-Meadows (2001) argues that reciprocity works most effectively when it encourages a position of mutual respect and real, as well as "active, listening" to the other – as per Menkel-Meadows, C. 2001, ‘Commentary: And now a word about secular humanism, spirituality, and the practice of justice and conflict resolution’, Fordham Urban Law Journal, April, p.1073.

18 Said, Abdul Aziz and Funk, Nathan C., ‘The Role of Faith in Cross-Cultural Conflict Resolution’, available at http://www.gmu.edu/academic/pcs/ASNC83PCS.htm accessed 07 May 2003 at p.1 19 Ibid.

20 Ibid.

21 Ibid. at p.2.

22 Ibid. at p.2.

23 Ibid. at p.3.

3 THE ARBITRATOR & MEDIATOR DECEMBER 2003

The following is a brief example of dispute management from both the Christian and the Jewish perspective.

Waddell and Keegan describe Christian conciliation, a dispute resolution option which is superior not only to litigation, but also to any of the other ADR methods.24 The primary reason for the effectiveness of Christian conciliation is its focus on reconciling relationships and encouraging parties to deal with the causes of their conflict. ‘Christian conciliation’ is defined as “a process for reconciling people and resolving disputes out of court in a biblical manner.”25 Parties to the conciliation are expected to be honest, keep their word, do what is merciful and just, admit their wrongs, and make restitution for any damage they have caused. Waddell and Keegan state that the most important distinction between ‘ordinary’ ADR and Christian conciliation is the pre-eminence of the Bible as a standard of conduct for both the participants and the conciliators. It is this focus on both the personal and substantive issues which often results in dramatic solutions of ‘impossible’ disputes.26 Bush in his paper on Jewish dispute management techniques based on religious values, discovered that the preference for compromise is more than simply an ethical principle in Jewish tradition,27 it is actually a legal obligation on a judge in a traditional rabbinical court.

The rabbinical court judge must strive to achieve a compromise or settlement. According to Bush, if the judge cannot, then he should judge between the two litigants in a pleasant manner, but still aspiring to encourage the disputants to compromise. If one of the litigants will stop at nothing in order to prevail, then the judge can become more firm and decide the case according to the strict law.28 In concluding this section of the paper, Menkel-Meadows (2001) states that the sacred, religious, and spiritual values that inform most of what is good about conflict resolution should not be “cabined to the church, synagogue, mosque, or zendo”.29 To achieve a just outcome with regards to dispute management and conflict resolution, it is vital that all the relevant aspects of what informs the disputants be taken into account. For those who adhere to the Muslim faith, this means taking into account what Islam has laid down as dispute management systems. The next section of this paper will address Islamic dispute management systems in order to provide the reader with a better appreciation of what may influence the Muslim party to a dispute.

24 Waddell, Glen G., and Keegan, Judith M., ‘Christian Conciliation: An Alternative to “Ordinary” ADR’, Cumberland Law Review, Vol.29, p.584.

25 Ibid, p.584.

26 Ibid, p.592.

27 Baruch Bush, Robert A. 2001, ‘Dialogue and the practice of law and spiritual values: Mediation and ADR – Insight from the Jewish tradition’, Fordham Urban Law Journal, Vol.28, April, p.1009.

28 Ibid p.1009 29 Menkel-Meadows, C. 2001, ‘Commentary: And now a word about secular humanism, spirituality, and the practice of justice and conflict resolution’, Fordham Urban Law Journal, April, p.1087.

–  –  –

Islam and Dispute Management – Overview and History:

In the reconstruction of the Ka‘ba, a serious quarrel arose over the setting of the Hajar al-Aswad – the Black Stone. Each one of the four leaders of the Quraysh that was in dispute over this issue was eager to have this honour and ensure he was not outdone by the others. There was an impasse. They could not agree. One of the leaders suggested that the first person to arrive at the Haram the next morning could be the one to place the Hajar al-Aswad. As it transpired, the Prophet (peace be upon him) was the first to arrive at the Haram. Not wishing to have the privilege all to himself, he asked each of the contesting tribes to select one leader. He then spread a sheet of cloth and put the Hajar-al-Aswad on it, asked the leaders to hold it at four ends and together raise it.



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