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Using Islamic Law

for Alternative Dispute Resolution: Is Sharia Sufficient?

 

STUDENT PAPER

By Abdul Wahid

SKEMA Business School

Paris, France

 



ABSTRACT

The importance of adequate mitigation of disputes between two opposing parties is hugely important in any circumstance, and in particular in business. With more than 1.6 billion followers and a steep history, the Islamic faith has a long-held tradition of resolving disputes without formal court proceedings. The goal of this paper was to explore whether or not the principles of Dispute Resolution advocated by Islam was sufficient when comparing to those found in Western Law.

Comparing the Islamic principles and processes of Dispute Resolution against a baseline from English Common Law, and using a MADM Dominance Analysis, the two legal systems were judged on how they suggest disputes can and should be resolved. It was found that Sharia Law is more than adequate in its instructions on how to resolve a number of disputes. It was clear that Sharia law is not at odds with Western legal principles but can be modernized to further improve.

Keywords: Disputes, Dispute Resolution Methods, Sharia, Alternative Dispute Resolution, Mediation & Arbitration Guidelines, Resolution Benefits

INTRODUCTION

The nature of all businesses is the desire to build capital & gain prosperity, and therefore any such obstacle to achieving this is strongly undesirable. It can be suggested that the key to attaining this success lies in the smooth relationships between all parties.  Nonetheless, within any realm of life, especially within the business world, disputes and claims arise, and inevitably they result in great losses, both in terms of time and, more importantly, lead to unnecessary costs.

Traditionally the approach to resolving disputes between any parties who are in disagreement has been to proceed to litigation. However, as this formal process itself can unarguably be time-consuming and costly, alternative approaches have been explored and developed.

Alternative Dispute Resolution (ADR) is a broad term referring to any method of resolving disputes outside of litigation. Typically, ADR processes involve mediation, arbitration and conciliation. Its origins, especially the concept of arbitration, goes back to the great Ancient Greek philosophers Plato and Aristotle, and references to arbitration in issues relating to commerce can also be found in biblical passages. Whilst ADR has been used for centuries, it has gained a steadily increasing popularity throughout the 20th century as an alternative to the litigation process and now is often the mandatory pre-cursor to seeking formal action in the courts.

While ADR has observed somewhat of a renaissance as an alternative access to justice, ADR’s underlying processes have formed the principals of dispute resolution for many early civilizations’ societies, one of which is the Islamic civilization.

Sharia, or Islamic law, is the religious law that forms part of the Islamic faith. Deriving from the main principles of teachings of Islam, particularly the Holy Qur’an and Hadith (sayings and teachings of the Prophet Muhammad), sharia “produces criminal and civil law, religious mandates and personal codes of conducts” for which society can be governed.

Step 1 – Problem Definition

In the 1400-year existence of Islam, Muslims have consistently focused on reaching consensus between disputing parties; the overriding premise has been that compromise has always been preferred over confrontation.

With its long history of using ADR-type methods to come to amicable solutions to their differences, this paper will explore whether or not the principles, practices and processes that underpin Dispute Resolution in Sharia match up to those we use in the 21st century. Additionally, considering that the duration these methods have been used, it is vital to explore whether or not anything can be gleaned from them to further improve the ADR processes we implement in the West today.

In a world, where the tide of Islamophobia continues to rise, and one where people are increasingly, and unknowingly, becoming ever more afraid of Sharia and ultimately Islam and Muslims, the intent of this paper is to bridge the gap and see if, and how, we can learn from its principles to improve our very own methods of Dispute Resolution.

More…

To read entire paper, click here

 

Editor’s note: Student papers are authored by graduate or undergraduate students based on coursework at accredited universities or training programs.  This paper was prepared as a deliverable for the course “International Contract Management” facilitated by Dr Paul D. Giammalvo of PT Mitratata Citragraha, Jakarta, Indonesia as an Adjunct Professor under contract to SKEMA Business School for the program Master of Science in Project and Programme Management and Business Development.  http://www.skema.edu/programmes/masters-of-science. For more information on this global program (Lille and Paris in France; Belo Horizonte in Brazil), contact Dr Paul Gardiner, Global Programme Director [email protected].

How to cite this paper: Wahid, A. (2018). Using Islamic Law for Alternative Dispute Resolution: Is Sharia Sufficient? PM World Journal, Vol. VII, Issue XII (December).  Available online at https://pmworldjournal.net/wp-content/uploads/2018/12/pmwj77-Dec2018-Wahid-sharia-law-for-alternative-dispute-resolution.pdf



About the Author


Abdul Wahid

Paris, France

 

 

Abdul Wahid graduated from the MSc Project and Programme Management & Business Development student at SKEMA Business School with a 3.9 GPA including receiving a grade of 90% for his Thesis on Social Mobility. Prior to this he graduated from Birkbeck, University of London in 2013, and holds a BSc (Hons) in Psychology.

He currently is employed at France’s largest bank in a role as Relationship Manager; prior to this he worked in the Financial Services and Insurance sector, at two of the largest financial institutions, The Royal Bank of Scotland Group and Lloyds Banking Group in his home country of the United Kingdom. He now resides in Paris, France and can be contacted at [email protected].