If you need an accessible version of this item please contact JSTOR User Support

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

Aida Othman
Arab Law Quarterly
Vol. 21, No. 1 (2007), pp. 64-90
Published by: Brill
Stable URL: http://www.jstor.org/stable/27650573
Page Count: 27
  • Download PDF
  • Cite this Item

You are not currently logged in.

Access your personal account or get JSTOR access through your library or other institution:

login

Log in to your personal account or through your institution.

If you need an accessible version of this item please contact JSTOR User Support
Preview not available

Abstract

The attention accorded to the institution of qaḍā' 'judgeship' and the adjudicative functions of the qāḍi has obscured another important method for resolving disputes in Islamic law, namely ṣulḥ 'amicable settlement'. While many studies on dispute resolution in Muslim societies have portrayed ṣulḥ mainly as 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 qāḍis alike to first consider conciliation to solve conflicts. A qāḍi might opt for ṣulḥ 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 ṣulḥ should operate, especially when they might offend the rules against ribā (usury) and gharar (uncertainty, deception, or unreasonable risk). The legal debates on ṣulḥ 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 ṣulḥ should not be given precedence over the formal, truth-seeking procedures of adjudication.

Page Thumbnails

  • Thumbnail: Page 
[64]
    [64]
  • Thumbnail: Page 
65
    65
  • Thumbnail: Page 
66
    66
  • Thumbnail: Page 
67
    67
  • Thumbnail: Page 
68
    68
  • Thumbnail: Page 
69
    69
  • Thumbnail: Page 
70
    70
  • Thumbnail: Page 
71
    71
  • Thumbnail: Page 
72
    72
  • Thumbnail: Page 
73
    73
  • Thumbnail: Page 
74
    74
  • Thumbnail: Page 
75
    75
  • Thumbnail: Page 
76
    76
  • Thumbnail: Page 
77
    77
  • Thumbnail: Page 
78
    78
  • Thumbnail: Page 
79
    79
  • Thumbnail: Page 
80
    80
  • Thumbnail: Page 
81
    81
  • Thumbnail: Page 
82
    82
  • Thumbnail: Page 
83
    83
  • Thumbnail: Page 
84
    84
  • Thumbnail: Page 
85
    85
  • Thumbnail: Page 
86
    86
  • Thumbnail: Page 
87
    87
  • Thumbnail: Page 
88
    88
  • Thumbnail: Page 
89
    89
  • Thumbnail: Page 
90
    90