Muslim/Arab Mediation and Conflict Resolution

Understanding Sulha

Doron Pely

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781138185326
• eBook ISBN: 9781317289357
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Middle Eastern Politics
• Index: Politics & International Relations

Inter- and intra-clan conflicts in Northern Israel pit hundreds against each other in revenge cycles that take years to resolve and impact the entire community. The Sulha is a Shari'a-based traditional conflict resolution process that works independently of formal legal systems and is widely practiced to manage such conflicts in the north of Israel, as well as throughout the Muslim and Arab worlds.

The Sulha process works by effecting a gradual attitudinal transformation, from a desire for revenge to a willingness to forgive, through restoration of the victim's clan sense of honour. Muslim/Arab Mediation and Conflict Resolution examines the process of Sulha, as practiced by the Arab population of northern Israel, where it plays a central role in the maintenance of peace among Muslims, Christians, and Druze alike. It presents detailed analysis of every stage of this at times protracted process. It uses interviews with victims, perpetrators, Sulha practitioners, community leaders and lawyers, along with statistical analysis to examine how Sulha affects people's lives, how various sectors of society impact the practice, and how it coexists with Israel's formal legal system. Furthermore, it examines how Sulha compares to Western dispute resolution processes.

This book offers the first comprehensive exploration of the entire Sulha process, and is a valuable resource for students and scholars of Middle East studies, Islamic studies and conflict resolution.

1 Sulha in Muslim jurisprudence and customary justice

The speed and scope of the rise of Islam, inextricably bound with the life of its founder the Prophet Muhammad, is nothing short of remarkable by any standard. In the span of 10 years (622–32 CE), following his migration from Mecca to Medina, Muhammad consolidated an administrative, political and theological centre of control that, in the words of historian Montgomery Watt, made him

not merely undisputed ruler of Medina, Mecca and the surrounding territory, but … accepted … suzerain by many tribes throughout Arabia. Moreover, within ten years of his death, the state which he created was able to meet in battle and defeat the armies of the two great empires of the Middle East, the Byzantine and Persian, and within a short time to overrun the latter completely. A hundred years after his death the empire of his successors extended from France to India.¹

The expansion of Islam was accompanied by a parallel expansion of Islamic dispute resolution practices – Tahkim and the Sulha, intimately tied to Muhammad’s personal experience and practise in his dual role as religious and temporal leader – as ‘the basic tenet of civil justice’.² For example, the ‘Constitution of Medina’, written by Muhammad, vividly illustrates the link between the Prophet and these instruments of power when stating: ‘If any dispute or controversy likely to cause trouble should arise it must be referred to God and to Muhammad, the apostle of God’.³ This link will be elaborated later in this chapter, but it suffices to say here that Muhammad was himself a Tahkim -practicing hakam (arbitrator) – both before and after the founding of Islam – and, more importantly, that even as he practiced arbitration – the main application of Tahkim, he expressed a clear preference for Sulha because of its dominant mediation element, positioning both practices at the forefront of Muslim dispute resolution – with a preference for Sulha.⁴

Given Muhammad’s centrality in the shaping of the nascent Muslim power and the obvious centrality of jurisprudence in the life of communities of all sizes, it is reasonable to assume that an understanding of the origins and evolution of Muslim jurisprudence in general and Sulha, Islam’s most ubiquitous customary justice practice in particular, may be helped by gaining an insight into Muhammad’s personal preferences and practices in these matters.

Determining the exact origins of Islamic law is a subject of intense scholarly debate. According to historian Wael Hallaq,

Far more complex than plotting the end-point of the formative period [of Islamic law] is the determination of its beginning. It is no exaggeration to say that of all the major questions in Islamic legal history, the issues involved in studying these beginnings have proved the most challenging.⁵

Moreover, the argument extends beyond the issue of origin to the question of whether and how Islamic jurisprudence incorporated pre-Islamic customary practices as part of its evolution.⁶

It appears that, in a demonstration of the power of cultural cross-fertilization, Islam – as it evolved and expanded rapidly – absorbed pre-Islamic dispute resolution principles, tools and practices, as well as other influences, gradually creating around them a body of ‘formal’ legal codex (Shari’a)⁷ that influenced the evolution of Muslim (as opposed to pre-Islamic) customary practices, which, in turn, influenced Islamic jurisprudence.⁸

The result of these cyclic processes is that in today’s Islam, formal and customary applications of the legal process co-exist, draw on each other and often collaborate closely in an attempt to achieve efficiency in conflict resolution and provide a wide spectrum of options that cover both individual and communal disputes. In the words of Barrister Gulam Hyder: ‘In the Islamic tradition, regular courts and ADR mechanisms are essentially intertwined’.⁹ Israeli Muslim legal scholar Musa Abu Ramadan adds: ‘In Islamic jurisprudence, there is a connection between habit and law. Habit actually becomes part of law’.¹⁰ Such a cross-fertilizing, circular relationship between formal and customary law reflects both the historical development of Islam and its special place in the lives of its adherents – as both a religion and a comprehensive system of ethics, law and cultural behaviour.¹¹

The insights developed in this chapter provide the background and context needed to explain the task-specific dispute resolution stages that facilitate the practice of the Sulha, the tools that are used within these stages and their impact on the disputants.¹²

Primary sources of Muslim jurisprudence

Islam, and Islamic law by extension, not only defines and regulates relations between humans and the deity, but also contains the only acceptable (by Muslim practitioners) detailed articulation and regulations defining the relations between people and their fellow men and women, including a comprehensive code of ethics and detailed principles of social behaviour.¹³

This inclusive nature extends to Muslim dispute resolution contexts, providing communities, practitioners and disputants alike with a comprehensive set of guidelines, defining the environment and tools within which people can and should manage and resolve their disputes. Consequently, the Shari’a is not a law in the same sense that Western adjudicators perceive it, but rather a comprehensive guide to life, including a complete code of duties and obligations.¹⁴

The question of Muslim jurisprudence sources is a hotly debated issue. The ‘traditionalist’ view ascribes the evolution of Islamic law to the simple ‘linear’ chronology – Allah-Muhammad-Companions-Followers-Fiqh ¹⁵ – that is accepted by all Muslims as divine in origins.¹⁶ In the words of Islamic law scholar Noel Coulson: ‘Law, in classical Islamic theory, is the revealed will of God, a divinely ordained system, preceding and not preceded by the Muslim state, controlling and not controlled by Muslim society’. Coulson proceeds to clarify the divide between history and tradition, noting that Islamic law ‘is not considered in the light of any external criteria, or in its relationship to particular epochs or localities’ and that because of this unique, history-free perspective, ‘the traditional picture of the growth of Islamic law completely lacks the dimension of historical depth’.¹⁷

Muslim scholars recognize five sources of Muslim jurisprudence: the Qur’an, the Sunna (habitual practice), Ijma (consensus), Qiyas (analogy) and Ijtihad (independent interpretation by personal effort).¹⁸ According to this outlook, the Qur’an is the first and main source of law, with its revelations constituting the first source of the Shari’a – Islam’s legal code. Second in importance stands the Sunna, comprising what Muslims believe to be all of Muhammad’s acts and sayings, as well as acts performed by his close associates. Despite being second in hierarchy, the Sunna, in the words of Wael Hallaq, ‘contains the bulk of material from which the law is derived’.¹⁹ As will be shown, the direct connection of Muhammad to Muslim customary justice, including his personal preference for Sulha, serves to anchor the place of this institution within Muslim dispute resolution.

The Ijma is the body of collected unanimous opinion and interpretation of the Qur’an by recognized religious authorities and jurists. This is a sanctioning vehicle, used as a base for solving similar legal cases. Sulha interveners make extensive use of a similar method (in terms of its mechanics) as they search for functional (cultural) precedents as part of their deliberative process.²⁰

The Qiyas is the body of analogical deductions, comparing the Qur’an to the Hadith (sayings of the Prophet) to help apply injunctions to new circumstances. The purpose of this function is to allow Muslim judges and interveners the use of precedence (most resembling to the case in hand) in the absence of clear Qur’anic, Sunna or Ijma guidance.

The Ijtihad consists of deriving rules through intellectual effort, independent of any school of Islamic law. This source of law ceased to operate around the tenth century.²¹

The previously mentioned primary sources of Islamic law are augmented by secondary sources, such as the Taqlid (Custom/Tradition) – the practice of following instructions by religious authorities based on their opinion and without comparing the instructions to the written text in the Qur’an.

All Muslims accept two of these sources – the Qur’an and the Sunna – since they are considered products of divine revelation. With respect to the other three sources – Ijma, Qiyas and Ijtihad – the various schools of Islamic jurisprudence (explained later) exhibit diverging approaches and levels of acceptance, based primarily on their attitudes towards the need to strictly adhere to what is accepted as divinely revealed texts (Qur’an and the Sunna), without any additional (human) interpretation.

The chronology mentioned earlier leaves no historical space for ‘imported’ pre-Islamic influences, be they significant or marginal. To further reinforce the ‘divine revelation’ argument with respect to the origin of Islamic texts (including legally relevant texts), the Muslim theological argument holds that Muhammad was illiterate and therefore could not ‘copy’ from other texts. Considering that the Prophet came from a merchant background, it is unlikely that he was completely illiterate, though it is unclear what texts, if any, he was exposed to in his pre-Islamic days.²²

International law scholar Majid Khadduri sheds light on this ‘purism’ effort within Islam, writing that ‘Muslim jurists took it for granted that since Islamic law was a divinely ordained syste...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• List of figures
• List of tables
• Foreword
• Acknowledgements
• Introduction
• 1 Sulha in Muslim jurisprudence and customary justice
• 2 The theoretical foundations of Sulha
• 3 Honour, revenge and forgiveness in Sulha
• 4 Sulha: structure and characteristics
• 5 Sulha and gender
• 6 Sulha and Western ADR
• 7 Sulha and Israel’s legal system
• 8 Sulha case study
• Conclusions
• Appendices
• Bibliography
• Index