Arbitration in Islam
By Ayatullah 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. |