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

Thesis Type:

Abstract:

This dissertation studies the concept of sulh , i.e. peacemaking or amicable settlement, in Islamic law. Through a survey of exegetical and legal works dating from the 8th to the 13th centuries C.E., I trace its development as one of the nominate contracts of Islamic law and one of the institutionalized methods for dispute resolution alongside qadā' ‘adjudication’ and tahkīm ‘arbitration’. I also examine the role of sulh in two different settings: the Ottoman qādī courts from the 16th to the 18th centuries C.E. and the venues for dispute resolution in the American Muslim community today.

Although sulh is commanded by the primary sources of Islamic law, it is adjudication by qādī that dominated juristic attention and contemporary studies of Islamic law. Qadā' appears as the preeminent avenue for channeling disputes according to the sharī`ah whereas sulh a mechanism operative only within the informal, private settings of Muslim social life. I find that this focus on adjudication has obscured not only the significance that Islamic law accords to sulh, but the fact that its scope extends unto the context of the courtroom. The Ottoman court records illustrate that sulh had played a considerable role in the Ottoman justice system in various jurisdictions throughout the empire during the period studied.

Although they were in favor of settlements arrived at through mutual compromise, jurists were concerned to ensure that they were equitable and in harmony with other Islamic principles. Thus, they debated when judges should encourage sulh and when he should proceed to adjudicate, and scrutinized sulh contracts to ensure they did not contravene rules on ownership and transfer of property. They also created a new role for sulh as a contract: it not only functions to terminate an existing dispute, but also to avert future conflict by regulating the use of property in neighborly and communal settings. And as the American Muslims attempt to reconcile the dual legal frameworks governing their lives in the United States today, one secular and one Islamic, and explore the alternatives provided by Islamic law for dispute resolution, their legal discourse shows that the ideals of sulh continue to rank high in the eye of the Muslim individual as well as community at large.

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