Arbitration in Islamic Law for the Treatment of Civil and Criminal Cases: An Analytical Overview

Abstract

Introduction: This is because Islam is not just a religion, it is away of life. Din-the Arabic word for religion, encompasses, theology, scripture, politics, morality, law, justice, and all other aspects of life relating to the thoughts or actions of men...it is not that religion dominates the life of a faithful Muslim, but that religion...is his life.[1] The Shari'ah regulates all aspects of life, ethical and social, and to encompass criminal as well as civil jurisdiction. Every act of believers must conform to Islamic law and observe ethical standards derived from Islamic principles[2]. Dispute settlement is one of the fundamental affairs of the Muslim as he was ordained to do so peacefully and this was declared as best way of resolving problems among them.  Arbitration and amicable settlement (sulh) have a long history within Arab and Islamic societies and have their roots in pre-Islamic Arabia. Sulh is the preferred result and process in any form of dispute resolution.  Further, arbitration is favored to adjudication in Islamic jurisprudence. In tribal and Islamic cultures, the overarching objectives in conflict settlement are collectivity.[3] Sulh or reconciliation is becoming an alternative problem solver in many cases lately. It is a mutual agreement between the conflicting parties so that the dispute is solved amicably. Many people assume that sulh is only applicable in civil cases. Nevertheless, in Islamic law sulh is also applicable in criminal cases particularly in homicide and bodily injury cases.

[1] D.S. Roberts, Islam: A Westerner’s Guide From Business and the Law to Social Customs and Family Life

London: Hamlyn, 1981), pp. 67-68.

[2] Islamic Banking in Theory and Practice by Mervyn K Lewis, Monash Business Review Volume 3 Issue 1 – April. (2007), Pp. 1-16.

[3] Sulh : A Crucial Part of Islamic Arbitration by Aseel Al-Ramahi, LSE Law, Society and Economy Working Papers 12/2008 London School of Economics and Political Science Law Department, www.lse.ac.uk/collections/law/wps/wps.htm,http://ssrn.com/abstract=1153659