"And Amicable Settlement Is Best": Sulh and Dispute Resolution in Islamic Law

Abstract

AbstractThe attention accorded to the institution of qadā' 'judgeship' and the adjudicative functions of the qādi has obscured another important method for resolving disputes in Islamic law, namely sulh 'amicable settlement'. While many studies on dispute resolution in Muslim societies have portrayed sulh mainly as a manifestation of customary practice within informal settings, a study of the legal sources reveals that it is not extra-judicial but is rather an integral aspect of an Islamic justice system.Citing authoritative traditions on the potentially disruptive effects of adjudication, jurists instructed disputants and qādis alike to first consider conciliation to solve conflicts. A qādi might opt for sulh in lieu of proceeding to trial, either steering disputants towards settlement on their own, with the assistance of mediators, or mediate the case himself. At the same time, jurists were also concerned with ascertaining the parameters within which sulh should operate, especially when they might offend the rules against ribā (usury) and gharar (uncertainty, deception, or unreasonable risk). The legal debates on sulh during the formative period of Islamic law show how jurists struggled to balance competing ethical and religious ideals: those of conciliation and compromise with those of truth and justice. In some situations, the individual's right to his full legal entitlements should be upheld, and sulh should not be given precedence over the formal, truth-seeking procedures of adjudication.