There are tribes that resort to customs in settling disputes among themselves
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Fatwa No. ( 20510 )
Q: We are from tribes living in Makkah al-Mukarramah and its outskirts, and other tribes live near us. We have customs and tribal rulings to which we resort in cases of disagreement and conflict . I and a group of tribe members are afraid and anxious about this, fearing that by doing so we are resorting to judgment other than what Allah has revealed. We wanted to disapprove of them and change them, and if the tribe insisted on them, we would leave their circle and boycott them. However, we reconsidered and found that, on the surface, these customs and rulings contain benefits, conflict resolution, prevention of harm, preservation of blood, and protection of rights. This is what we see on the surface... and Allah knows best. We feared that if we disapproved of them and changed them without knowledge, the benefits they contain would be lost, and it would be difficult for the tribe to return to them. So we decided to clarify to you the nature of these customs and rulings. If they contradict the rulings of the pure Shari'ah, we will, if Allah wills, cease from them and warn people against them. If we find in them what is beneficial and does not contradict the Shari'ah, we hope you will clarify that, and clarify what contradicts the Shari'ah so that it may be changed. Note that the tribe states that their not resorting to the government's Shari'ah courts is not an objection
to the ruling of the Shari'ah, but for reasons, including the following: 1- It is difficult for the Bedouins to frequently visit the courts and government offices, and routine procedures may take months or years. 2- Fear of harsh discretionary punishments, such as long imprisonment. 3- Some litigants excel in delaying, manipulating, circumventing, and exploiting loopholes in the routine, so the case continues for a long period, possibly reaching years, but the Bedouins and the tribe decide on the matter in a short time. Clarification of the nature of the tribal customs and rulings: If a dispute or problem occurs between two parties, the victim or his Shaykh (the Khatimah) asks the perpetrator or his Shaykh to pay. The perpetrator or his Shaykh (the Mu'dal) pays a sum of money or a valuable item that remains with the victim until the right is established and the case is judged and settled. The victim or his Shaykh (the 'Aani) gives a pledge and commitment not to take any retaliatory action or file a government complaint until the right is established and the case is settled. The 'Aani may be for preventing fitnah, which is in the case of a fight breaking out between individuals or tribes. At the moment of the clash, the one who wants good takes an 'Aani from the first party and an 'Aani from the second party. This is a truce and a prevention
of the incident and a cessation of fighting. That is, every owner of an 'Aani is responsible for preventing his tribe, even by force, from any aggression after the 'Aani. Any beating or aggression after the 'Aani is a mark of shame upon the owner of the 'Aani. By this, the fitnah is stopped until the elders of the two tribes gather to discuss and resolve the case. Establishing the Right: The victim bears the costs of bedding and dinner for the judgment of the case, then the perpetrator pays the costs if it is established that he is the wrongdoer. Two or more judges are nominated to judge the case; they are not scholars of Shari'ah knowledge nor students of knowledge, but are known for their intellect, experience, wisdom, trustworthiness, and acumen. Note that there are no scholars or students of knowledge among the tribe members known for intervening or participating in resolving such cases. The plaintiff and the defendant are guaranteed, and they wipe their beards, and each says: "In my face," meaning to execute the issued ruling and not oppose it, except in one case: if he is certain that the ruling is unjust. In this case, he rejects the ruling and presents a Mu'dal to the judges, then the case is referred to other judges, who may be from outside the tribe. They distinguish in the ruling. If they agree with it, he is obligated to execute the ruling and is charged with another ruling for the judges as a penalty for challenging their ruling. If the judges' ruling is actually unjust, he rules otherwise, and the judges receive nothing. The plaintiff presents his claim and the defendant responds, then the judges consider whether the claim requires
anything. If it does not, the claim is dropped. If it requires a ruling, they consider whether there is a previous similar case with a previous ruling among them, in which case they rule similarly. If there is no similar case and no previous ruling among them, they rule as they see fit (and they agree on the ruling, meaning that if such a case occurs again, they will accept the same ruling). This is called (Asiyyah). Note that there are rulings that were agreed upon and resorted to, and when it appeared that they contradicted the Shari'ah, the tribe's judges abandoned them due to their contradiction with the Shari'ah. Some of the rulings by which they judge: 1- If the case is an assault by beating, the injuries are assessed in a sum of money, and it is paid to the victim (Arsh). 2- Evidence is taken from the plaintiff, otherwise the oath is upon the one who denied. 3- If the case is insult, cursing, belittling, or humiliation, a sum of money is ruled, or a sum and a Malfi. The Malfi is: (a sheep prepared for a feast where the notables gather at the home of the victim to honor him and restore his status). It does not occur to either party that this is slaughter for other than Allah. It may happen that the wrongdoer offers a Malfi to the victim as an honor to him and without a ruling, rather from a good heart, so that the victim's heart is pleased. 4- The ruling is doubled if the victim is a neighbor, a relative, or
a companion in the side. We ask you to inform us in writing; so that we can clarify to the Shaykhs and notables of the tribe, may Allah benefit them with it. And may Allah reward you with the best reward.
A: It is obligatory to resort to the law of Allah in everything. Allah the Exalted said:[An-Nisa 4:59] , and His saying, the Exalted: [An-Nisa 4:65] , and His saying, the Exalted: [Al-Ma'idah 5:50] . It is not permissible to resort to the customs of tribes and the like; because this is resorting to judgment other than what Allah has revealed. Rather, it is obligatory for you to resort to the judges of the Shari'ah courts. And success is from Allah, and may Allah send prayers and blessings upon our Prophet Muhammad, his family, and his Companions.
Q: We are from tribes living in Makkah al-Mukarramah and its outskirts, and other tribes live near us. We have customs and tribal rulings to which we resort in cases of disagreement and conflict . I and a group of tribe members are afraid and anxious about this, fearing that by doing so we are resorting to judgment other than what Allah has revealed. We wanted to disapprove of them and change them, and if the tribe insisted on them, we would leave their circle and boycott them. However, we reconsidered and found that, on the surface, these customs and rulings contain benefits, conflict resolution, prevention of harm, preservation of blood, and protection of rights. This is what we see on the surface... and Allah knows best. We feared that if we disapproved of them and changed them without knowledge, the benefits they contain would be lost, and it would be difficult for the tribe to return to them. So we decided to clarify to you the nature of these customs and rulings. If they contradict the rulings of the pure Shari'ah, we will, if Allah wills, cease from them and warn people against them. If we find in them what is beneficial and does not contradict the Shari'ah, we hope you will clarify that, and clarify what contradicts the Shari'ah so that it may be changed. Note that the tribe states that their not resorting to the government's Shari'ah courts is not an objection
to the ruling of the Shari'ah, but for reasons, including the following: 1- It is difficult for the Bedouins to frequently visit the courts and government offices, and routine procedures may take months or years. 2- Fear of harsh discretionary punishments, such as long imprisonment. 3- Some litigants excel in delaying, manipulating, circumventing, and exploiting loopholes in the routine, so the case continues for a long period, possibly reaching years, but the Bedouins and the tribe decide on the matter in a short time. Clarification of the nature of the tribal customs and rulings: If a dispute or problem occurs between two parties, the victim or his Shaykh (the Khatimah) asks the perpetrator or his Shaykh to pay. The perpetrator or his Shaykh (the Mu'dal) pays a sum of money or a valuable item that remains with the victim until the right is established and the case is judged and settled. The victim or his Shaykh (the 'Aani) gives a pledge and commitment not to take any retaliatory action or file a government complaint until the right is established and the case is settled. The 'Aani may be for preventing fitnah, which is in the case of a fight breaking out between individuals or tribes. At the moment of the clash, the one who wants good takes an 'Aani from the first party and an 'Aani from the second party. This is a truce and a prevention
of the incident and a cessation of fighting. That is, every owner of an 'Aani is responsible for preventing his tribe, even by force, from any aggression after the 'Aani. Any beating or aggression after the 'Aani is a mark of shame upon the owner of the 'Aani. By this, the fitnah is stopped until the elders of the two tribes gather to discuss and resolve the case. Establishing the Right: The victim bears the costs of bedding and dinner for the judgment of the case, then the perpetrator pays the costs if it is established that he is the wrongdoer. Two or more judges are nominated to judge the case; they are not scholars of Shari'ah knowledge nor students of knowledge, but are known for their intellect, experience, wisdom, trustworthiness, and acumen. Note that there are no scholars or students of knowledge among the tribe members known for intervening or participating in resolving such cases. The plaintiff and the defendant are guaranteed, and they wipe their beards, and each says: "In my face," meaning to execute the issued ruling and not oppose it, except in one case: if he is certain that the ruling is unjust. In this case, he rejects the ruling and presents a Mu'dal to the judges, then the case is referred to other judges, who may be from outside the tribe. They distinguish in the ruling. If they agree with it, he is obligated to execute the ruling and is charged with another ruling for the judges as a penalty for challenging their ruling. If the judges' ruling is actually unjust, he rules otherwise, and the judges receive nothing. The plaintiff presents his claim and the defendant responds, then the judges consider whether the claim requires
anything. If it does not, the claim is dropped. If it requires a ruling, they consider whether there is a previous similar case with a previous ruling among them, in which case they rule similarly. If there is no similar case and no previous ruling among them, they rule as they see fit (and they agree on the ruling, meaning that if such a case occurs again, they will accept the same ruling). This is called (Asiyyah). Note that there are rulings that were agreed upon and resorted to, and when it appeared that they contradicted the Shari'ah, the tribe's judges abandoned them due to their contradiction with the Shari'ah. Some of the rulings by which they judge: 1- If the case is an assault by beating, the injuries are assessed in a sum of money, and it is paid to the victim (Arsh). 2- Evidence is taken from the plaintiff, otherwise the oath is upon the one who denied. 3- If the case is insult, cursing, belittling, or humiliation, a sum of money is ruled, or a sum and a Malfi. The Malfi is: (a sheep prepared for a feast where the notables gather at the home of the victim to honor him and restore his status). It does not occur to either party that this is slaughter for other than Allah. It may happen that the wrongdoer offers a Malfi to the victim as an honor to him and without a ruling, rather from a good heart, so that the victim's heart is pleased. 4- The ruling is doubled if the victim is a neighbor, a relative, or
a companion in the side. We ask you to inform us in writing; so that we can clarify to the Shaykhs and notables of the tribe, may Allah benefit them with it. And may Allah reward you with the best reward.
A: It is obligatory to resort to the law of Allah in everything. Allah the Exalted said:
And if you disagree over anything, refer it to Allah and the Messenger, if you should believe in Allah and the Last Day. That is the best [way] and best in result.
فَإِنْ تَنَازَعْتُمْ فِي شَيْءٍ فَرُدُّوهُ إِلَى اللَّهِ وَالرَّسُولِ إِنْ كُنْتُمْ تُؤْمِنُونَ بِاللَّهِ وَالْيَوْمِ الآخِرِ ذَلِكَ خَيْرٌ وَأَحْسَنُ تَأْوِيلاBut no, by your Lord, they will not [truly] believe until they make you, [O Muhammad], judge concerning that over which they dispute among themselves and then find within themselves no discomfort from what you have judged and submit in [full, willing] submission.
فَلا وَرَبِّكَ لاَ يُؤْمِنُونَ حَتَّى يُحَكِّمُوكَ فِيمَا شَجَرَ بَيْنَهُمْ ثُمَّ لاَ يَجِدُوا فِي أَنْفُسِهِمْ حَرَجًا مِمَّا قَضَيْتَ وَيُسَلِّمُوا تَسْلِيمًاThen is it the judgement of [the time of] ignorance they desire? But who is better than Allah in judgement for a people who are certain [in faith].
أَفَحُكْمَ الْجَاهِلِيَّةِ يَبْغُونَ وَمَنْ أَحْسَنُ مِنَ اللَّهِ حُكْمًا لِقَوْمٍ يُوقِنُونَ
Source
www.alifta.gov.sa
The Arabic text is copied verbatim from the original source, without any edits.