DEVELOPMENT OF

ADR IN ISLAM

Prepared by
Dr Nora Abdul Hak
 • The attention accorded to the institution of
qada’ and the adjudicative functions of the
qadi (judge) has obscured another
important method for resolving disputes
i.e., sulh (amicable settlement).
• A study of the legal sources shows that sulh
is not extra-judicial but is rather an integral
aspect of an Islamic justice system.
• It is encouraged upon both the parties and
INTRODUCTION the judge, first to consider sulh to solve
conflicts.
• A qadi may opt for sulh instead of
proceeding to trial either encouraging the
parties to solve their problem on their own,
with the assistance of the third party or
mediate the case himself.
• In certain circumstances, sulh should not be
given precedence over formal, truth-
seeking procedures of adjudication.
 ADR IN ISLAM
• Means of ADR such as tahkim occupy a very
important place in the scheme of administration of
justice in Islam.
• Tahkim is recognised as an independent mechanism of
conflict resolution.
• There are other means of ADR in Islam such as
mediation(wasata), negotiation, expert opinion(fatwa),
pardon and ombudsmen(hisbah) etc.
• The main concern is to achieve reconciliation between
the parties and not to find who is right and who is
wrong.
 • During pre-Islamic period, there was no
formal judicial institution.
• Disputes concerning rights to property,
succession, and torts were normally
referred to wasit (third person) that was
appointed by the parties.
• This was done after negotiation between
ADR the parties failed to lead to any
DURING solution/settlement.
PRE- • There was no formal institution that
managed this practice.
ISL AMIC
PERIOD • The appointment of wasit was conducted
by way of ad hoc.
• Tahkim unlike arbitration was not an
alternative to an established judicial
system.
• Rather it was the only means of dispute
resolution if direct negotiation and
mediation failed to achieve a settlement.
 • The appointed third person did not
belong to a particular caste/tribe.
• The parties in dispute were free to
appoint any person on whom they
agreed.
• He was chosen based on his personal
qualities, for his reputation, because he
belonged to a family famous for their
competence in deciding disputes and
also for his supernatural powers –
CONT... known as kahin (soothsayers).
• The parties had to agree not only on the
choice of an arbitrator, but on the cause
of action.
• Each party had to provide a security as
a guarantee that they would abide by
his decision.
• The decision of the hakam was final
and binding on the parties e.g., ‘ukaz a
fair held periodically in Mekah.
 Discuss any case of
settlement outside
court that had been
conducted during the
GROUP time of the Prophet
DISCUSSION Muhammad s.a.w or
his companions or
during Umayyad or
Abasiyyah’s period
• Before his appointment as the
messenger of Allah, the Prophet
Muhammad used to be an arbitrator
among his community.
• They came to him for the resolution
of their disputes. DUR I NG T H E
• A good example was when the TIM E OF TH E
P R O P HET
chieftains of tribes asked him to solve
M UH A M M AD
the dispute among them concerning
the re-placing of the black stone (al-
hajar al-Aswad) of the Kacbah.
• It was solved amicably by him using
his wise decision.
 CONT...

• The Prophet Muhammad was approached by al-

Zubayr ibn al-Awwam, and a man from the Ansar
regarding a dispute over irrigation of their
neighbouring orchards.
• After listening to them, the prophet ordered al-
Zubayr to irrigate part of his land and then let the
water flow to his neighbour's plot.
• The man was dissatisfied and remarked to the
Prophet Muhammad; “do you suggest this because he
is your cousin?”
• This angered the prophet, and he reversed his view.
• Allowing al-Zubayr to water his whole plot so he has
a full right of the water.
• The Prophet was said to have
encouraged sulh and to have
mediated both public and
private disputes.
• Prophet Muhammad often acted
as an arbitrator between
individuals and tribes to settle
their disputes.
• Prophet was invited by the
people of Madinah to act as an
arbitrator in the conflict of two Examples of
large Arab tribes of al-Aus and
khazraj with three Jewish clans.
• In another case, the Prophet ADR
appointed Sa’ad bin mu’adh as
an arbitrator relating to the
actions of banu Quraizah in the
battle of al Ahzab.
• The Prophet agreed with the
tahkim of al-A’war bin
Bashamah in the case of Bani
Anbar relating to the
distribution of zakat.
 DURING KHUL AFA’ AL-RASHIDIN

• After the demise of Prophet Muhammad s.a.w in 11

Hijrah (632M) the administration under Khulafa’ al-
Rashidin begun.
• In general, there had been nothing much changed from
what the Prophet Muhammad had done.
• cUmar Ibn al-Khatab also used to act as an arbitrator
over disputes in his community.
• A famous letter written by Umar bin Khattab to Abu
Musa al-Ash’ari on latter’s appointment as a Qadi,
contains several instructions about the administration
of justice.
 CONT...

“All types of compromise and conciliation among

Muslims are permissible, except those which make
haram anything which is halal and a halal as
haram”
• When approached by the disputants, judges should
not immediately proceed with adjudication, which
almost inevitably leads to rancour and enmity
between them.
• They must first steer them towards reconciliation
and settlement of the dispute by mutual consent.
 • When Umar and Ubaiy ibn
Ka’ab quarrelled over the

DURING KHULAFA’ AL-RASHIDIN

farm of date, they appointed
zayd bin thabit as an
arbitrator to judge between
them.
• Dispute between Uthman and
Talhah was arbitrated by
Jubayr Ibn Mat’im.
• During Ali was the Caliph-
case of dispute between a
woman and her husband.
• Tahkim between Ali and
Mu’awiyyah ibn Abu
Sufyan-they agreed to submit
to tahkim their dispute
concerning the Caliphate.
Tahkim between S. Ali and Mu’awiyyah, the governor of Syria
• This tahkim was an effort to stop the civil war that happened as an impact of the
assassination of the third caliphate Othman, lasting for more than 2 years.
• The dispute was submitted to tahkim by written agreement.
• The two parties agreed to appoint 2 hakam in a written deed, which stated the names of
the arbitrators, the time limit for making the award, the applicable law and the
place of issuing the award.
• The hakam had been given full power to determine the dispute.
• The provision of the applicable law provided that the decision should be based on the
Qur’an and the Sunnah.
• The two arbitrators agreed in private that both claimants be deposed, and a new caliphate
be chosen by a general election.
• Ali’s hakam announced the decision first, however, when mu’awiyah’s hakam followed
he said that he agreed that Ali should be deposed but affirmed mu’awiyah’s claim to the
caliphate.
• The award was set aside on the grounds of violating the Qur'an and the sunnah.
 UMAYYAH(41H-132H)
AND ABBASIYYAH

• Mu’awiyyah as the first khalifah – had managed well

the administrative structures under his territories.
• Qadhi were appointed by the Governor and they
were given with absolute power to resolve the
dispute and to make the decisions and these
decisions were recorded.
• This is to ensure that any judgements imposed were
carried out accurately.
• The institution of Qada’ was separated from
government’s administration.
• There were wilayah al-mazalam and wilayah al-hisbah.
• Resolution of disputes by means of alternative was
not a popular during this period.
• This is because of the institution of qada’ was
already developed and established well.
• The main focus was therefore on the institution of
qadha’.
 CONCLUSION

• Pre Islamic period-when Islam came-

during the time of al-Khulafa’ al-
Rasyidin, sulh was practised as a means
of resolution of disputes in various
kinds of disputes such as commercial,
family, politics and governments.
• However, when the institution of qadhi
was strengthened by the Ummayyad
and Abbasiyyah’s rulers, the role of sulh
became insignificant and its scope of
practice was limited to certain areas of
disputes like family.
• Considerable attention has been
devoted to the institution of qada’.
• This is evidenced from huge works
produced by Muslim jurists throughout
the centuries on the nature and
function of the qadi.