Arbitration by Tribal Customs in Disputes
Machine translationRead the Arabic original
Fatwa No. ( 18542 )
Q: We are in a tribal society whose members have grown up with customs and traditions
they use to judge their problems, whether the dispute is over farms, residential land, marital issues, or brawls that occur among them. They have rules preserved in the minds of the tribe’s elders, to whom they resort and by whom they argue that this is reconciliation between the parties, and that the claims and responses of the litigants in the presence of those they call judges are, as they say, a necessary arrangement in the case of reconciliation. They may rule by an oath in cases of denial, saying: “The judge rules by an oath in cases of denial.” They see no harm in their method, nor in pressuring those who refuse to pay the amount ruled against them, saying: “All of this is intended to put an end to the problem.” Is this approach and this means they adopt considered a lawful reconciliation, and do they receive a reward for it? If not, please clarify the characteristics of reconcilers among people in the correct lawful manner, so that we may be clear about the matter. Knowing that some of those who judge in such problems may fast on Mondays and Thursdays of every month, and think that if there is a sin, it is minor, and that seeking forgiveness from Allah the Exalted is sufficient. Also, it is a custom of those tribes to strongly disapprove of taking problems to the official authorities, which leads them to stand as one hand against the one who files a complaint against another, and that the right is his regardless of the one who filed the complaint. If they
consider him to have wasted his right by filing the complaint with the authorities, they do not testify with him and do not allow him to attend their gatherings, such as weddings and other occasions held by the tribe. Likewise, if he is exposed to an incident of the times, they do not stand with him. For example, if he is run over by a person and a blood money (diyah) is ruled against him, they do not help him with it until he returns to the tribe, then hands over a sword or a sum of money, then withdraws his complaint from the official authorities, then resorts to the tribal sheikhs and elders. They rule against him in advance with a harsh judgment regarding the complaint, whether he is the wrongdoer or the one against whom the error lies. Then they rule against him in the complaint and look into the problem after taking the tribe’s right. If they find that he was in a council and did not shake hands with someone, they rule against him with 1,000 riyals, and sometimes more. If he said to him, for example, the word “O thief,” they rule against him with 5,000 riyals. And so they look into the problems of the tribe’s individuals and rule over them with the judgment of their first fathers and grandfathers. Is there any advice for those people, especially those who consider this work to be reconciliation between people and avoiding problems among them, and say: “That is from the gathering of sins, and from what the five daily prayers and others expiate?” We ask your Eminence to clarify the answer in this problem.
A: It is obligatory to refer disputes and conflicts to the
Shari'ah courts, and to abandon ruling by tribal customs and pre-Islamic traditions; due to the saying of Allah the Exalted:[Al-Ma'idah 5:49] , and His saying, Glorified and Exalted is He: [Al-Ma'idah 5:50] , and His saying, Exalted is He: [An-Nisa 4:59] . As for reconciliation between people and settling disputes among them, this is a good and required matter, but the prescribed reconciliation is that which does not involve contravening the pure Shari'ah, nor compelling the one who refuses, and is accepted by both parties without coercion or imposing a specific punishment, and results in the resolution of the dispute and the removal of hostility. All of this falls under His saying, Exalted is He: , and His saying, Exalted is He: [Al-Anfal 8:1] , and His saying, Mighty and Majestic: [An-Nisa 4:114]
And success is from Allah, and may Allah send prayers and blessings upon our Prophet Muhammad, his family, and his Companions.
Q: We are in a tribal society whose members have grown up with customs and traditions
they use to judge their problems, whether the dispute is over farms, residential land, marital issues, or brawls that occur among them. They have rules preserved in the minds of the tribe’s elders, to whom they resort and by whom they argue that this is reconciliation between the parties, and that the claims and responses of the litigants in the presence of those they call judges are, as they say, a necessary arrangement in the case of reconciliation. They may rule by an oath in cases of denial, saying: “The judge rules by an oath in cases of denial.” They see no harm in their method, nor in pressuring those who refuse to pay the amount ruled against them, saying: “All of this is intended to put an end to the problem.” Is this approach and this means they adopt considered a lawful reconciliation, and do they receive a reward for it? If not, please clarify the characteristics of reconcilers among people in the correct lawful manner, so that we may be clear about the matter. Knowing that some of those who judge in such problems may fast on Mondays and Thursdays of every month, and think that if there is a sin, it is minor, and that seeking forgiveness from Allah the Exalted is sufficient. Also, it is a custom of those tribes to strongly disapprove of taking problems to the official authorities, which leads them to stand as one hand against the one who files a complaint against another, and that the right is his regardless of the one who filed the complaint. If they
consider him to have wasted his right by filing the complaint with the authorities, they do not testify with him and do not allow him to attend their gatherings, such as weddings and other occasions held by the tribe. Likewise, if he is exposed to an incident of the times, they do not stand with him. For example, if he is run over by a person and a blood money (diyah) is ruled against him, they do not help him with it until he returns to the tribe, then hands over a sword or a sum of money, then withdraws his complaint from the official authorities, then resorts to the tribal sheikhs and elders. They rule against him in advance with a harsh judgment regarding the complaint, whether he is the wrongdoer or the one against whom the error lies. Then they rule against him in the complaint and look into the problem after taking the tribe’s right. If they find that he was in a council and did not shake hands with someone, they rule against him with 1,000 riyals, and sometimes more. If he said to him, for example, the word “O thief,” they rule against him with 5,000 riyals. And so they look into the problems of the tribe’s individuals and rule over them with the judgment of their first fathers and grandfathers. Is there any advice for those people, especially those who consider this work to be reconciliation between people and avoiding problems among them, and say: “That is from the gathering of sins, and from what the five daily prayers and others expiate?” We ask your Eminence to clarify the answer in this problem.
A: It is obligatory to refer disputes and conflicts to the
Shari'ah courts, and to abandon ruling by tribal customs and pre-Islamic traditions; due to the saying of Allah the Exalted:
And judge, [O Muhammad], between them by what Allah has revealed and do not follow their inclinations
وَأَنِ احْكُمْ بَيْنَهُمْ بِمَا أَنْـزَلَ اللَّهُ وَلاَ تَتَّبِعْ أَهْوَاءَهُمْThen 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 يُوقِنُونَAnd 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 تَأْوِيلاAnd settlement is better
وَالصُّلْحُ خَيْرٌSo fear Allah and amend that which is between you
فَاتَّقُوا اللَّهَ وَأَصْلِحُوا ذَاتَ بَيْنِكُمْNo good is there in much of their private conversation, except for those who enjoin charity or that which is right or conciliation between people
لاَ خَيْرَ فِي كَثِيرٍ مِنْ نَجْوَاهُمْ إِلا مَنْ أَمَرَ بِصَدَقَةٍ أَوْ مَعْرُوفٍ أَوْ إِصْلاحٍ بَيْنَ النَّاسِAnd success is from Allah, and may Allah send prayers and blessings upon our Prophet Muhammad, his family, and his Companions.
Source
www.alifta.gov.sa
The Arabic text is copied verbatim from the original source, without any edits.