Arbitration
in Islam
(By Ayat.
Muhammed
Beheshti)
From time to
time
differences
arise on
various
questions
between the
people living
together.
Historical and
personal
experience
shows that no
society has
ever existed,
between the
individuals or
the social
organizations
of which there
have never
been any
differences.
Such
differences
have always
existed in all
societies from
the primitive
and
semi-barbaric
to the most
advanced and
civilized.
Usually the
differences
and clash of
interests
arise between
two
individuals,
two
organizations,
two classes or
two nations,
in one of the
two ways.
In many cases
the difference
is due to
wrong
thinking,
wrong behavior
and unjust
conduct of one
or both the
parties. In
more or less
every society
there are
individuals or
groups which
axe not
spiritually
and morally
mature enough
to be fair in
all cases and
not to violate
the rights of
others. Such
people, if
their personal
interest
demands, do
not show any
consideration
for the rights
of others.
Their human
sentiments are
not strong
enough to
control their
selfishness
and greed.
They neither
possess noble
moral
character nor
are they
interested in
seeking the
pleasure of
Allah. They do
not fear the
consequences
of their
misconduct in
this world or
in the next.
There is no
doubt that
lack or
weakness of
faith is the
most common
and the most
effective
cause of the
differences.
Anyhow, this
cause is not
peculiar to
individuals.
The same thing
is true of
classes and
nations. We
often find in
social life
that two
faithful and
pious persons
differ on a
certain point.
Here the
difference is
not due to
their unjust
behavior but
is due to the
difference in
determining
what is right.
In such cases
both the
parties,
according to
their light
believe that
they are
right, and
each thinks
that the other
party is
either
involved in
selfishness or
is mistaken.
Anyway, a
pious man
defends
himself and
what he
believes to be
his right with
zeal and
enthusiasm,
but is never
prepared to do
a thing which
he regards
unjust and
wrong.
It is a
social duty to
settle the
differences
Any
differences
which may
arise between
individuals or
social
organizations
should be
settled as
early as
possible, for
their
continuance,
whether they
are due to any
willful
transgression
or mere
misunderstanding,
always adds to
the conflict
between the
parties
concerned and
culminates in
ugly events or
at least
perpetuates
some sort of
hostility and
malice between
them. Anyway,
to make effort
to settle the
differences is
a social duty.
The Qur'an
urges the
Muslims to try
to adjust any
disputes which
may arise
between them.
"Have
fear o f Allah
and resolve
your
differences"
. (Surah al-Anfal,
8:1) .
In tradition
also much
importance has
been given to
this question.
The holy
Prophet is
reported to
have said:
"To
settle the
differences is
more
meritorious
than prayers
and
fasting".
Various
ways of
settling
differences
People usually
adopt one of
the following
methods to
settle their
disputes:
(1) Personal
force: Use of
personal force
is one of the
oldest methods
of settling a
dispute. When
a person is
unable to
settle a
quarrel
amicably, he
at once jumps
to fight
either
individually
or with the
help of his
friends and
supporters.
This is called
the law of the
jungle,
according to
which the
stronger is
always right.
(2) Shouting,
abusing and
vilification:
Some times the
two parties
involved in a
quarrel do not
have the power
or courage to
stand up to
each other and
to fight a
battle. They
instead of
fighting in
the field
resort to
another kind
of battle,
viz. the
verbal battle.
Either face to
face or behind
the back they
shout at each
other, abuse
each other and
vilify each
other, till
one party is
reduced to
submission.
Normally the
more
evil-tongued
and
foul-mouthed
comes out
victorious in
these verbal
battles.
Evidently this
solution is of
the same
category as
the first. It
is even worse,
because it
shows the
cowardice and
faintheartedness
of the parties
concerned.
Socially also
it is more
harmful. The
Qur'an totally
disapproves
vilification,
except in
cases where a
wrong is done
to someone,
and he does
not find
anyone to do
justice to
him. In this
case the only
reaction which
he can show is
to raise an
outcry and
expose the
aggressor.
"Allah
does not like
shouting o f
evil words
unless a man
bas been
wronged. Allah
is All-Hearer,
All-Knowing".
(Surah al-Nisa,
4:147).
(3) Passage of
time: Where
the disputing
parties are
not in a
position even
to make an
outcry, they
leave the
matter to the
factor of time
in the hope
that with the
passage of the
time fairness
of their
position will
be established
and their
right will be
restored. This
is mostly the
solution of
the weak,
though it is
sometimes
adopted by the
discreet and
cunning among
the strong
also. Anyhow,
it is a
solution which
seldom leads
to the desired
result. More
often than not
it causes the
right and the
claimant both
to be buried
in the debris
of history.
Sometimes the
passage of
time merely
means to give
greater
opportunity to
the termites
of dispute to
eat up
whatever
social link
exists between
the disputants
and turn them
into absolute
enemies of
each other.
(4)
Arbitration:
When, with the
social
development of
human life man
reached a
stage where he
could
understand
social affairs
better and
could be
benefited by
his past
experience to
make a better
future, ground
was prepared
for submitting
the dispute to
an arbiter for
his judgment
instead of
using physical
force,
vilification
or leaving the
matter to the
passage of
time. Did
arbitration in
the beginning
have the form
of intervention
by the head of
the family or
the chief of
the tribe? Did
it then take
the form of
settlement of
disputes by
the priest
etc. and
lastly did it
develop into
the present
form? Did the
weak first use
this solution
to protect
themselves
against the
dishonest
contrivances
of the strong?
Or did the
strong feel
that they
could achieve
their objects
more easily
with the help
of a judge
hand-picked by
them? Or was
it the mental
growth which
persuaded
society to
devise such a
means of
settling
disputes as
might be
accept able to
all? Or is it
an invention
of the
intellectuals
to solve a
problem faced
by society? Or
is it a remedy
suggested to
society or its
social leaders
by their love
for justice
and defense of
the oppressed?
Or has it some
other origin?
To study the
origin and
development of
arbitration
the reader may
refer to the
books and
articles
written
specially on
this subject.
For the
present it is
enough to say
that there can
be two real
motives of
referring a
dispute to an
arbiter: (1)
Natural
instinct of
man to defend
himself and
his rights, an
instinct which
is shared by
other living
beings also;
(2) Love of
the virtue of
justice and a
desire of
mitigating
social
hardships.
Administration
of Justice in
Islam
In the social
system of
Islam utmost
importance has
been given to
arbitration,
to an arbiter
and to their
role in the
security of
society.
Islam
considers it
to be a part
of faith to
refer a
dispute to a
competent
arbiter. A
person who has
a legal
dispute should
try to settle
it by
negotiation,
and if a
result is not
obtained this
way, he should
refer it to an
arbiter,
competent in
accordance
with Islamic
standards.
Whatever
judgment is
given by the
arbiter,
should be
accepted
unconditionally.
In this
respect the
Qur'an says:
"By your
Lord! (the
fact is) that
they will not
be true
believers
until they
make you judge
in what is in
dispute
between them
and then do
not find in
themselves any
dislike o f
what you
decide, and
submit (to
your judge
ment) without
reservation
". (Surah
al-Nisa,
4:65).
In an Islamic
society the
judicial and
executive
systems should
be at the
service of
those whose
rights have
been violated.
"Allah
does not favor
a society with
virtuousness
and purity in
which there is
no arrangement
for defending
the rights of
the weak
against the
strong".
(Mustadrak,
vol. 2).
Who is fit to
hold the
position of an
arbiter?
Soundness of
arbitration
mostly depends
on the fitness
of the
arbiter. The
Commander of
the Faithful,
Imam Ali wrote
to Malik al
Ashtar as
under:
"Select,
as your chief
judge from the
people, one
who is by far
the best among
them - one who
is not
obsessed with
domestic
worries, one
who cannot be
intimidated,
one who does
not err too
often, one who
does not turn
back from the
right path
once he finds
it, one who is
not
self-centered
or avaricious,
one who will
not decide
before knowing
the full
facts, one who
will weigh
with care
every
attendant
doubt and
pronounce a
clear verdict.
after taking
everything
into full
consideration,
one who will
not grow
restive over
the arguments
of advocates
and who will
examine with
patience every
new disclosure
of fact and
who will be
strictly
impartial in
his decision,
one whom
flattery
cannot
mislead, one
who does not
exult over his
position. But
such people
are
scarce".
Heavy
responsibilities
of a judge
A judge must
realize that
in reality he
is a refuge
for the people
against every
injustice and
excess. If he
does not feel
that he is
competent to
hold this
position, he
must not
accept it.
Otherwise he
will be a
source of
trouble to himself
as well as to
others.
Addressing
Justice
Shurayh, Imam
Ali (P) said:
"Shurayh!
you are
occupying a
seat which
should be
occupied by a
Prophet or his
nominee.
Otherwise it
is a seat of a
wretched
man". (Wasail
al-Shi’ah,
vol. 18 p. 7).
Imam Ja'far
ibn Muhammad
al Sadiq (P)
is reported to
have said:
"Avoid
being a judge,
for judgeship
is a position
which should
be held only
by a person
who knows how
to administer
justice and
whose
judgments are
impartial.
Such a person
can only be
either a
prophet or his
nominee
". (Wasail
al-Shi’ah,
vol. 18, p.
7).
Adherence
to the Divine
law
A judge must
pronounce his
judgment in
accordance
with the
Divine law
which covers
all aspects of
justice.
Anyone who
pronounces
judgment in
accordance
with any other
law not
conforming to
the Divine law
and based on
personal or
class
interests, is
a deviator and
a sinner.
"Those
who do not
judge in
accordance
with what
Allah has
revealed are
wicked
indeed".
(Surah al-Maidah,
5:47).
Imam Muhammad
al Baqir (P)
is reported to
have said:
"There
are two kinds
of judgment:
Divine and
pagan. He who
deviates from
the Divine
judgment,
automatically
pronounces the
pagan one.
Anyone who
pronounces a
judgment
contrary to
what Allah has
commanded, is
an unbeliever,
though his
judgment be in
a case
involving two
dirhams
only". (Wasail
al-Shi’ah
vol. 18 p.
18).
Behavior
towards
litigants
Behavior of a
judge towards
the litigants
should in
every respect
be the same,
even in the
way he
addresses them
and looks at
them.
"It is
your duty to
give the same
treatment to
both the
parties of a
case even in
the matter of
looking at
them. You
should not
look at one
party longer
than at the
other". (Nahj
al-Balaghah)
Independence
and Immunity
of judiciary
In the social
system of
Islam whenever
a heavy duty
or duties are
placed on the
shoulders of
anyone, he is
allowed to
have certain
privileges
also. The same
general rule
applies to the
judges also.
As a judge has
to undertake
heavy duties,
his position
is quite
strong. In
Islamic
society the
independence
of a judge is
truly
respected.
Even the head
of Muslim
society should
show full
respect to the
independence
of judiciary.
Those who have
to forego
their unlawful
gains
consequent
upon the just
judgment of a
judge should
not be allowed
to think that
they could
shake the
confidence of
the head of
society in a
judge or could
damage the
prestige of
the judiciary.
"Protect
the position
of a judge so
that others,
specially
those who are
closer to you,
may not be
tempted to
disturb him.
Let him be
satisfied that
nobody can
hatch an
intrigue
against him.
Be very
careful in
this respect,
for this
religion was
previously in
the hands of
the wicked who
used it for
self-aggrandizement".
(Nahj al-Balaghah).
The judge also
has a
reciprocal
duty. He is
strictly forbidden
to accept any
gift from the
litigants.
"Rufa'ah!
Avoid every
temptation;
suppress base
desires; do
not be
dejected and
be careful not
to accept any
bribe".
(Epistle of
Imam Ali (P)
addressed to
Rufa'ah, his
judge in Ahwaz).
Administration
of justice
based on such
a strong
foundation can
provide best
solution to
the disputes
of the members
of a nation
and can be a
source of
strength for
their social
ties.
Relations
of the Muslims
with Others
We know that
the Muslim
ummah has come
into existence
on the basis
of a
particular
system of
doctrines and
actions, and
its
continuance
depends on the
preservation
of its
ideology and
the stability
of its social
set up.
Evidently the
individuals
and nations
not
subscribing to
Islamic
ideology,
being beyond
its doctrinal
pale, cannot
be considered
to be members
of the Muslim
ummah. They
are aliens,
but the degree
of their
alienation
will be judged
by these two
considerations:
(1) How far
they share the
ideology of
Islam?
(2) To what
extent they
are hostile to
the Muslims?
As regards (1)
above
(a) Islam
believes that
the whole
world and all
its phenomena.
depend on an
absolute truth
which
transcends
matter, viz.
Allah. The
whole world,
including man
has been
created and is
being
maintained by
Him.
(b) From the
Islamic point
of view man,
in order to
know the true
nature of the
world and to
become aware
of his own
relation with
Allah, should
turn to
revelation,
which is a
great source
of knowledge.
As such,
belief in the
Prophets and
their
invisible
contact with
Allah is a
part of
Islamic
Cosmology.
(c) Next to
the belief in
Allah and
revelation
there is a
question of
doing good
deeds, which
include all
individual and
collective
efforts for
human welfare
and
development.
Islam has a
close relation
with all other
systems which
are also based
on these three
principles.
But it has no
relations with
the
materialistic
and
polytheistic
ideologies and
systems.
On this basis,
Islam will
have
especially
close
relations with
a system which
believes in
the Unity of
Allah in its
true Islamic
sense. If a
system also
believes in
true Divine
revelation, in
the Prophets
and- the
Divine
Scriptures,
Islam's
relation with
it will
naturally be
deeper. The
Qur'an has
repeatedly
referred to
this natural
affinity
between
various Divine
systems. It
considers
their origin
and their
basic
principles to
be common and
coherent. Of
course, this
does not mean
the
endorsement of
the present
beliefs of the
followers of
these
religions or
of the
contents of
their existing
religious
books. This is
only a
recognition of
the Divine
origin of
these
religions. The
Qur'an draws
the attention
of the
followers of
these
religions to
their
deviations and
wants to
reform them.
(2) The
hostility
which others
show to Islam
has several
degrees:
(a) Sometimes
they oppose
the Muslims
formally. They
either
actually
launch an
attack against
the land of
the Muslims,
their life and
property or
their
religion, or
at least have
an intention
to do so. In
this case they
will be
regarded as
invaders and
aggressors. It
is but logical
that the life,
property and
the land of an
invading enemy
is not to be
respected, and
so long as he
is at war,
friendly
contact or
co-operation
with him is
not allowed.
This is the
case in which
the question
of jihad,
defense and
their relevant
rules arises.
(b) A nation
which has no
intention to
attack and
betray the
Muslim ummah
or a Muslim
country and is
not intriguing
against them,
will not be
considered to
be an
aggressor: If
it enters into
a peace treaty
with the
Muslims or a
pact of
non-aggression
and reciprocal
respect of the
borders and
the rights of
each other,
such agreement
will be
respected,
whether it is
concluded
direct between
the Muslims
and a
non-Muslim
country or
both of them
join a common
world covenant
resulting in
an undertaking
of mutual
respect and
preservation
of the borders
of others. In
this case the
non-Muslim
country or
nation will be
in peaceful
treaty
relations with
the Muslims
and the
agreement
concluded with
it will be
respected so
long as it
does not
visibly or
invisibly
violate it by
hatching an
intrigue or
launching an
aggression. If
it is found to
be intriguing
against the
Muslims it
will, of
course, be
regarded as an
enemy.
In history we
find that
wherever the
interest of
the Muslim
ummah
demanded, the
holy Prophet
concluded a
treaty of
peace and
non-aggression
even with the
polytheists.
We see that in
the sixth year
of the Hijri
era he signed
a treaty with
the
polytheists of
Mecca. He
respected it
and
scrupulously
implemented
every clause
of it, till
the enemy
himself
practically
abrogated it.
It was only
then that the
Prophet
decided to
take action
against the
enemy for
being guilty
of violating
the treaty.
Thus the way
was prepared
for the
conquest of
Mecca, which
was conquered
in 8 A.H. We
find that
during the
madinite
period of his
life the holy
Prophet
concluded a
number of
treaties and
pacts.
(c) The third
class consists
of those
non-Muslims
who live under
the protection
of the Muslim
government.
They are
called zimmi
and their
life, property
and even
religious
rites are
respected,
provided they
abide by their
covenant and
pay the
capitation
tax. They can
live
peacefully
along with the
Muslims and
enjoy all
human rights.
With this
brief
explanation of
the relations
of the Muslims
with the
non-Muslims we
can understand
all the basic
teachings of
Islam having a
bearing on the
foreign policy
of Muslim
society.
In this
connection one
of the most
important
questions is
that of jihad.
The importance
which Islam
attaches to it
has
unfortunately
given a weapon
in the hands
of the
opponents of
this Divine
system to
project the
valuable
teachings of
Islam in a
distorted form
and to launch
an attack
against the
Qur'an and
Islam by
declaring in
their writings
and speeches
that Islam is
a religion of
sword. In our
opinion the
best way to
enable you to
understand the
correctness or
otherwise of
this assertion
is to acquaint
you further
with the
salient
features of
jihad in
Islam.
