“The Compatibility of Shariʿa and Adequate Dispute Resolution - A Methodological Approach” by Jens Kambeck ____________________________________________________________________!!!!!!!!!!!!!!!!!!Introduction In the Qurʾān, various verses prescribe a duty to act justly and seek peaceful dispute resolution. Based on these fundamental principles, particular aspects of Islamic legal theory support recent claims that common means of international conflict settlement are compatible with Shariʿa. Methods such as mediation, conciliation, and arbitration, summarily termed “Adequate Dispute Resolution” (ADR), have become the international dispute resolution procedures of choice in many fields, e.g. business law, family law, international law, and the financial sector. Procedural flexibility and the possibility for the parties to appoint a panel of arbitrators or other neutral third communication facilitation they trust gives it the potential to be enhanced and adjusted further. ADR also plays a role in dispute solving in states with little confidence in fair and independent court jurisdiction among the populace. This role could gain particular importance in countries with a Muslim majority and a constitutional prerequisite that all jurisdiction must to be based on Shariʿa. Such a legal restriction can be termed "Shariʿa-proviso." The compatibility of ADR with Shariʿa is a condition for the implementation of institutionalised dispute resolution in countries with a Shariʿa-proviso because the procedures resulting in final and binding legal decisions cannot contradict Shariʿa. The following study gives an overview of the different ADR methods and, as far as possible, religious reference in Islamic legal theory. The methodological approach chosen is legal methodology. Necessary terms are defined and subsumed with respect to the compatibility of Shariʿa with ADR. The study contributes an emic perspective to the current academic conceptualisations of Shariʿa. The constitutions of countries with a Muslim majority are analysed with regard to a Shariʿa-proviso, the self-designation of the state concerning the use of the term ”Islam”, the legal provision of a state religion and membership to the New York Convention. The text is based on a presentation given at the international conference ”Shariʿa and Globalisation - Islamic Legal Theory Reconsidered”, held at the Orient Institute in Beirut on 23-24 March 2012. !!!

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!!1. ADR as an Important Tool of Modern Dispute Resolution ”Getting to yes“ is the title of a non-fiction book on negotiation, translated into more than 20 languages. Roger Fisher and William Ury, both professors at Harvard Law School, first published their book in 1981, and it is still on Business Week´s Best Sellers list as one of the "Longest Running Best Sellers" in paperback business books in 2012. Fisher is also the dean of the Harvard Negotiation Project where a methodological approach towards principled negotiation, based on four propositions, is taught: 1.) Separate the people from the problem, 2.) Focus on interests, not positions, 3.) Invent options for mutual gain, 4.) Insist on using objective criteria. These principles are by no means new ideas, they express common sense and the idea of a fair procedure. This might be one of the reasons why the authors sold more than 2 million copies of the book worldwide. The large audience interest also demonstrates the demand for knowledge about conflict resolution. In the mid-20th century the nature of business conflicts became more complex due to highly specialised products and multinational companies as parties of business contracts. Courts, on the other hand, were facing an increasing amount of cases and more specialised knowledge was needed to understand the merits of the cases. This dilemma - an increasing amount of cases, the higher complexity of cases and the lack of capacity in courts at the same time - is often described as litigation crisis. ”Don´t make judges become experts but experts become judges” was one of the slogans which expressed the need for alternatives to court litigation. Experts in engineering and other professions should be trained in law in order to work as arbitrators in an arbitration panel rather than training legal experts in the knowledge required to understand the background of each dispute. Conflict resolution methods seeking cost-effective, fast, fair, internationally binding and enforceable decisions were needed. The UN General Assembly established the United Nations Commission on International Trade Law UNCITRAL in 1966  with the aim of promoting the 1

progressive harmonisation and unification of international trade law. UNICITRAL currently includes more than 60 member states from different legal traditions. Since its founding, it has been working on conventions and model laws, especially in the field of conflict resolution. A model law on international commercial arbitration was drafted in 1985, the UNCITRAL Arbitration Rules were drafted in 1976 and revised in 1982 and 2010, and the UNCITRAL Conciliation Rules were drafted 1980. Conciliation and arbitration became important international conflict resolution methods for business conflicts and the ICC (International Chamber of Commerce), and most of the national Chambers of Commerce offer a framework for the amicable settlement of commercial disputes with the assistance of a neutral party. The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, also known as the New York Convention, was adopted by the UN in 1958  . It requires courts of contracting states to give 2

effect to private agreements to arbitrate and to recognise and enforce

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$ UN Resolution 2205.1

$ http://www.uncitral.org/uncitral/uncitral_texts/arbitration/NYConvention.html last accessed in January 2013.2

arbitration awards made in other contracting states without the need for any further proceeding in national courts. This convention made arbitration the most attractive dispute resolution method in international commercial conflicts. Dispute resolution is a profitable market. “The aggregate amount in dispute of all cases filed directly with the DIS (German Institution on Arbitration) in 2010 amounted to approx. € 1.090 billion […] and € 1.142 billion […] including extensions of claims and counterclaims filed in 2010 in proceedings commenced in previous years.“  On an international scale, 3

the recent global financial crisis “has accelerated a rising trend in favour of the use of international arbitration, where the enforceability of awards under the New York Convention gives it a major advantage compared to litigation in national courts. Globally, governments have invested in bringing their arbitration laws up-to-date and building modern arbitration centres to capitalise on this growing market.“  Notwithstanding the current 4

economic situation, “[t]he number of cases in arbitration and mediation conducted in the International Centre for Dispute Resolution, the International Chamber of Commerce or in the London Court of International Arbitration have constantly grown over the last 5 years.“  5

ADR is flexible and its procedural framework can be adjusted exactly to the needs of each specific case. It is therefore used in all different fields of law. Mediation, for example, is a popular conflict resolution method in family law, as it aims to strengthen the communication and relationship between the parties. Arbitration is the dispute resolution method of choice for the majority of cross-border business transactions in international business law, and, excluding national jurisdiction, arbitration clauses became an essential part in business contracts over the last three decades. !2. ADR and Shariʿa Muslim Arbitration Centres Decision-making according to Shariʿa principles is offered and guaranteed by arbitration centres in both Muslim and non-Muslim countries. Many such arbitration centres work in the fields of family and business law. The London Times reported on 21 July 2009 that ”an increasing number of non-Muslims are turning to Shariʿa courts to resolve commercial disputes because they are less cumbersome and more informal than the English legal system."  By “Shariʿa Courts“ the article referred to the Muslim 6

Arbitration Centre (MAT), which was established in 2007 in London ”to provide a viable alternative for the Muslim community seeking to resolve disputes in accordance with Islamic Sacred Law and without having to resort to costly and time consuming litigation.”  According to the 7

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$ http://www.dis-arb.de/en/39/content/statistik-id51, last accessed in January 2013.3

$ CIArb Costs of International Arbitration Survey 2011, Chartered Institute of Arbitrators, available at: 4

http://www.ciarb.org/conferences/costs/2011/09/28/CIArb%20costs%20of%20Internationa l%20Arbitration%20Survey%202011.pdf, last accessed in January 2013.

$ Timothy, International Mediation: An Evolving Market, in: Contemporary Issues in International Arbitration and 5

Mediation, The Fordham Papers 2010, p 412.

$ Hamilton, Non-Muslims Turning to Shariʿa Courts to Resolve Civil Disputes, in: London Times, 21 July 2009.6

$ www.matribunal.com, last accessed in January 2013.7

procedural rules of the MAT, ”the Tribunal shall take into account the Laws of England and Wales and the recognised Schools of Islamic Sacred Law.“  8!Islamic Finance Disputes arising from conflicts in Islamic finance are often subject to ADR, namely arbitration. Arbitration centres worldwide offer the whole scope of ADR methods in commercial disputes where legal questions concerning Shariʿa are important for the decision. Special arbitration centres for Islamic finance have been established  providing arbitration rules, which 9

are specifically ”applicable for the purposes of arbitrating any commercial contract, business arrangement or transaction that is based on Shariʿa principles.“  Muslims represent about a quarter of the world´s population 10

but less than 1 per cent of global financial assets are Shariʿa compliant in an era of enhanced religious sensibilities  . The Islamic financial sector is 11

a market worth about 750 billion USD globally and growing annually by 15-20 per cent.  Standard & Poor’s has estimated that the potential 12

market for Islamic finance could be USD 4 trillion, over seven times its current size.  A rising number of Muslims live in common law and civil law 13

countries and business activities in the Islamic financial sector are not confined to countries using a Shariʿa-based legal system.  The demand 14

for Shariʿa-compliant services within a non-Shariʿa legal system creates potential conflict of law issues.  The question concerning the payment of 15

interest is often part of such conflict. There is a consent among religious and legal scholars that ribā is forbidden  , but, at the same time, they are 16

constantly dissenting about the definition of ribā.  It has been argued that 17

the term ribā only means usury, others say it must be seen as any form of interest. Similarly, the question about in which field of business a Shariʿa-compliant asset can invest (halal-investment  ) is subject to conflict 18

resolution in Islamic finance. The invalidity of contracts due to contradiction against Shariʿa would be a further potential legal conflict. The

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$ Procedural Rules MAT, No 8.2, available at http://www.matribunal.com/procedure_rules.html, last accessed in 8

January 2013.

$ For example: Kuala Lumpur Regional Centre for Arbitration, Dubai Int. Arbitration Centre, Abu Dhabi 9

Commercial Conciliation and Arbitration Centre, Int. Islamic Centre for Reconciliation and Arbitration.

$ KLRCA Arbitration Rules (Rule 1 Nr. 3, available at: http://www.klrca.org.my/userfiles/File/Islamic%202007.pdf, 10

last accessed in January 2013).

$ price waterhouse coopers, Shariʿah-compliant funds: A whole new world of investment, 2 11

(http://download.pwc.com/ie/pubs/pwc-Shariʿah-compliant-funds.pdf, last accessed in January 2013).

$ lbid, 4.12

$ Duncan McKenzie, Islamic Finance, 29/10/2008 (http://www.mondovisione.com/media-and-resources/news/ 13

Islamic-finance, last accessed in January 2013).

$ Colon, Choice of Law in Islamic Finance, 2.14

$ lbid, 2.15

$ Qurʾān verse 2: 275, 278.16

$ Sing, Progressiver Islam in Theorie und Praxis, Die interne Kritik am hegemonialen islamischen Diskurs durch 17

den „roten Scheich“ Abḍallāh al-ʿAlāyilī (1914-1996), 283.

$ for further information e.g. www.instituteofhalalinvesting.org, last accessed in January 2013.18

risk that one party will fail to fulfil its contract obligations and then declare the entire agreement as void for being invalid under Islamic law has been described as ”Shariʿa-risk“  . Difficulties can also arise when both state 19

law and Shariʿa principles govern contracts in Islamic financial transactions (mixed or dual law approach). Julian Colon argues that a reference to both Islamic and national law together need not violate the principle that there cannot be more than one law that governs a contract.  20!ADR in International Law The Permanent Court of Arbitration in The Hague has been dealing with various inter-governmental disputes  in public law over the last few years. 21

Some of the parties have been countries with a Muslim majority  and a 22

Shariʿa-proviso  . The success of such negotiations as well as 23

international encouragement will result in an increasing importance of such modes of conflict settlement. International business conflicts are increasingly solved by arbitration. Afghanistan, Egypt and Qatar, who have a Muslim majority and a Shariʿa-proviso are contracting states to international contracts enhancing international trade, like the ”New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards“ from 1958 which obliges them to enforce any arbitration award of other contracting states. !ADR in Family Law Mediation is the most common dispute resolution method in family law. The focus in mediation is to keep lines of communication open and to support and structure communication with the help of a neutral third party. The process aims to strengthen the relationship between the parties and through mediation more time can be invested in maintaining the communication than in litigation. This is of particular importance when different cultural or religious backgrounds of the parties exacerbate the conflict. To take one example, nearly 20 per cent of all people living in Germany have a migration background.  This leads to a large number of 24

binational relationships and marriages. The family court in Tempelhof-Kreuzberg in Berlin has a special department for cases with a foreign connection. Approximately 11,000 of the more than 25,000 cases per year have such a foreign connection, be it that one of the parties holds a foreign passport or the family’s centre of life is abroad.  A significant 25

number of cases involve parties of Muslim religion; judges in the Berlin family court work in close cooperation with several mosques and seek to

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$ Bälz, Shariʿa Risk?: How Islamic Finance has Transformed Islamic Contract Law, Islamic Legal Studies 19

Program, Harvard Law School 13.

$ Colon, Choice of law in Islamic Finance, 25.20

$ http://www.pca-cpa.org/showpage.asp?pag_id=1029, last accessed in January 2013.21

$ e.g. Yemen-Eritrea conflict 1998 and 1999 (Harnish islands) http://www.pca-cpa.org/showpage.asp? 22

pag_id=1160, last accessed in January 2013.

$ e.g. Art. 3 of the Constitution of Yemen.23

$ http://www.bmi.bund.de/cae/servlet/contentblob/566008/publicationFile/31710vollversion_studie_muslim_leben_ 24

deutschland_.pdf, page 90, last accessed in January 2013.

$ Disch, Islamisches Familienrecht in der Diaspora, 36.25

implement Shariʿa principles. Likewise, family courts in England, Canada, and Spain cooperate with Islamic Shariʿa councils or similar institutions. 3. Definitions !3.1. ADR ADR is a collective term for various communication strategies helping the parties in dispute to communicate and find a legal binding decision. ADR includes arbitration, conciliation, mediation, guided or principled negotiation, collaborative law, conflict resolution, dispute resolution, lawyer supported mediation, party-directed mediation, restorative, negotiation based on expert opinion and many other methods, not to mention so- called ”hybrid procedures“ which combine the different methods. Out of this inevitably partial list of commonly used terms I would like to focus in this article on three methods: mediation, conciliation and arbitration. ADR can be an abbreviation for alternative, amicable, adequate or appropriate dispute resolution. I would like to define ADR as ”adequate“ dispute resolution as it is in my opinion the most precise term and refers to the search for the most suitable dispute resolution method for the case in question. Depending on the nature of the case and sometimes also the personalities of the parties involved, different dispute resolution methods can be more or less effective. Therefore it is expedient to invest time and effort on finding the most ”adequate“ method. The term ”appropriate“ dispute resolution is used in the so called ”multiple-door court house system“  in the US where the parties are consulted in the choosing of a 26

suitable dispute resolution method for their specific case. Both terms, ”adequate“ and ”appropriate“ are similar and interchangeable but can be distinguished from ”amicable“ or ”alternative“. The term ”alternative“ dispute resolution is misleading in that it suggests that it is a different procedure to litigation in courts. Judges know that it can be attractive to encourage the parties to find a mutual agreement instead of judging according to state law and having the duty to give reasons for the judgement. Encouraging the parties to negotiate necessarily includes using procedures such as conciliation or principled negotiation which belong to the ADR toolbox. ADR methods can therefore be part of the litigation process in legal practice and do not necessarily have to be an alternative to litigation. The term "amicable“ dispute resolution indicates finding a consensus and it excludes procedures which might result in a final, binding and enforceable decision against the will of the parties, like arbitration. To come to an amicable agreement is always a preferred dispute solution as it will strengthen the relationship between the parties. The term ”ADR“ is usually used to describe a collection of conflict resolution methods which are not exclusively amicable. Adequate dispute resolution can be conducted without the intervention of a third party, such as principled negotiation where the parties agree to give their negotiation a formal structure and follow particular rules of communication behaviour in order to enhance the quality and increase the speed of the procedure. Other methods necessarily need external intervention. The third party can be one person or a group.

� / �6 21$ http://www.dccourts.gov/dccourts/superior/multi/index.jsp, last accessed in January 2013.26

!3.2. Mediation Mediation can be defined as a pure communication process where a neutral third person helps the parties in dispute to find a mutual agreement. Mediation is often used in family law where an important aim is to keep lines of communication open as there will most likely be an ongoing family and the parties should be encouraged to negotiate e.g. ”a workable way of living apart“. Professional mediators are often skilful in working with the psychological and emotional side of conflicts and the parties involved. Neutrality of this mediating third person is of highest value and a constitutive element of the process. Therefore any suggestion made by the third person on which decision should be made changes the procedure to conciliation, where these suggestions can be a desired effect of the procedure.  A mediator is always a neutral communication 27

facilitator and never suggests solutions. !3.3. Conciliation Conciliation can be a useful method where parties are seeking the advice of a third person on how to solve their dispute. This third person is usually accepted as an impartial expert with a good reputation and well-respected authority. In contrast to mediation, as part of the process the conciliator may make a suggestion as to how to proceed after hearing both sides and discussing potential solutions. In that moment the conciliator is no longer neutral and gains an interest in fostering the parties' acceptance of his suggestions. !3.4. Arbitration Arbitration is a dispute resolution method usually used in commercial or business law. The parties of the dispute appoint one or more ”arbitrators“ who do not act like advocates or legal representatives but rather as judges who the parties trust to be competent experts and decision makers. The arbitrators do not necessarily have to have a professional background in law. The arbitrators appointed by the parties form a panel of arbitrators and appoint a third, neutral arbitrator. This arbitral tribunal has similar competencies to a judge in litigation. It can conduct Oral hearings, parties can present evidence and testimony, expert opinions can be heard and as a result a final, binding and enforceable ”arbitration award“ can be issued. The reasons to appeal against an award are limited which usually makes it a fast procedure. In contrast to other non-binding ADR methods, the arbitration award can be issued against the will of the parties. Other than litigation, arbitration is very much flexible in the procedural design as a consequence of the private autonomy. Parties have the freedom to chose a business - and contract partner and they can also decide by whom, where and how a potential conflict should be solved. Therefore the arbitral tribunal can agree with the parties about the place and language of arbitration, the applicable law and other procedural specialities which allow the process to be custom tailored to the individual case to make it a very time and cost effective dispute resolution method.

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$ The so called „Frankfurter Verfahren“ where the Hessian state government negotiated with joined initiatives 27

fighting against the extension of Frankfurt airports in 1998 was falsely described as „mediation“ while conciliation would have been much more precise. (further information: Geis, „Umstritten, aber wirkungsvoll: Die Frankfurter Flughafen-Mediation“ HSFK-Report 13/2003, Hess. Stiftung für Friedens- und Konfliktforschung).

!Procedural flexibility and the fact that the parties appoint a panel of trusted judges make arbitration a potentially interesting ADR method to solve disputes not only in private law but also in public and international law. In 1998-1999, Yemen and Eritrea negotiated upon territorial sovereignty of the Hanish Islands and fishing rights at the Permanent Court of Arbitration in The Hague  . The Award resolved the dispute “on the basis of 28

international law and the long-term fraternal interests of both peoples and countries.”  Based on the positive experience, arbitration was taken into 29

consideration as an adequate method to solve land disputes in the North-South conflict in Yemen 2007-2008. !3.5. Shariʿa It is a difficult task to define the term “Shariʿa”. In the Qurʾān sura 45, verse 18 Shariʿa is used as ”way or path (to the waterhole)“ and can be interpreted as a spiritual guideline. Trying to translate Shariʿa in a legal context as ”Islamic law“ has been criticised as not being precise enough, among other issues, due to the following reasons. Matthias Rohe  argues that pacification is one of law‘s essential 30

functions, bringing peace into a situation of conflict. The immediate enforcement of a legal decision or a sanction is characteristic and it can also be done by the use of force (through the state) as an ”ultima ratio“. In Shariʿa, the distinction is made between a non-spiritual (muʿāmalāt) and a spiritual sphere (ʿibādāt) where on the one side the relationship between men is prescribed and on the other side the relationship between men and god. The Arabic technical terms used in the Qurʾān to structure and label actions in the relationship between men (muʿāmalāt) are wāǧib (provided), farḍ (duty), mubāḥ (allowed), and ḥarām (forbidden). These terms also regulate and define misbehaviour and issue the respective sanctions. Mustaḥabb, mandūb (advised) and makrūh (disapproved, condemned, disfavoured) label positive and negative behaviour in the relationship between men and god (ʿibādāt) and sanctions are foreseen only in the spiritual sphere. This different system of sanctions shows that “law“ according to the definition given above including the essential function of pacification and immediate enforcement does not apply to both spheres. Misbehaviour in the spiritual context (ʿibādāt) is not sanctioned by force here and now but will be sanctioned for the believer in his relationship with god in the religious sense of a heavenly kingdom. Therefore, the term ”law“ does not grasp the concept of Shariʿa adequately as it covers only muʿāmalāt, the non-spiritual level. Hans-Georg Ebert highlights that the Islamic religion was often one influence among possible others and formed a legal system in the specific regional context. It would be too narrow and imprecise to reduce the legal system in the various places where the majority implemented Shariʿa principles as ”Islamic law“. ”In the countries of Asia and Africa in which the Islamic religion has a presence, specific legal systems have formed on the

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$ http://www.pca-cpa.org/showpage.asp?pag_id=1160, last accessed in January 2013.28

$ Kwiatkowska, The Eritrea Yemen Arbitration: Landmark Progress In The Acquisition Of Territorial Sovereignty 29

and Equitable Maritime Boundary Delimitation, in: IBRU Boundary and Security Bulletin 2000, 66-86.

$ Rohe, Das Islamisches Recht, 9.30

basis of these countries` historical, political, social, and religious development, taking account of imposed norms and principles. […] At the same time, national legal systems reflect various local, regional, and Islamic characteristics that overlap and cannot be reduced to Islamic law, or Shariʿa.“  31

Wael Hallaq describes Shariʿa as a "complex set of social, economic, moral, educational, intellectual and cultural practices"  and 32

distiguishes between a traditional "non-state, community-based, bottom-up jural system"  and a modern Shariʿa which "had now come to be lodged 33

within the structures of the state"  . "Over the past two centuries or so, the 34

Shariʿa has been transformed from a worldly institution and culture to a textuality, namely, a body of texts that is entirely stripped of its social and sociological context – its ecological environment, so to speak. Furthermore, this textuality has been engaged in a kind of politics that its pre-modern counterpart did not know. […] This profound transformation was the outcome of the confrontation between the Shariʿa and the most significant and weighty institution that emerged out of, and at once defined, modernity, i.e., the state."  35

Countries with a Muslim majority population have implemented religious aspects in the state organisation and legal framework to significantly different degrees. It is therefore difficult to subsume the law in African, Asian and Arab countries with a Muslim majority under one technical term ”Shariʿa“ or ”Islamic law“. Hence, misunderstanding can be avoided by using more precise descriptions like Afghan, Indonesian or Nigerian law instead of summarising them under ”Islamic law“. An analysis  of 48 countries with a Muslim majority population 36

shows that only nine use the term ”Islamic“ as self-designation of the state  , 24 have ”Islam“ as the state religion and 14 anchored ”Shariʿa“ as 37

the source of law in the constitution (Shariʿa-proviso). The doctrines of different sects in Islam produced different opinions ranging from conservative to liberal and the four major schools of Islamic jurisprudence (al-Ḥanafīya, al-Mālikīya, al-Šāfiʿīya, al-Ḥanbalīya) differ in the use of techniques (e.g.ʾiǧmāʿ, qiyās and iǧtihād) interpreting those rules and principles which need further interpretation (dalīl ẓannī). It is not always obligatory for every judge to follow a certain legal school and the opinions in the schools are not always distinguishable but rather overlap in the majority of legal decisions. Nevertheless, countries with a Muslim majority can be seen in the tradition of one of the major schools of jurisprudence. Out of the 48 countries, nineteen follow al-Mālikīya, twelve al-Ḥanafīya, nine al-Šāfiʿīya, two al-Ḥanbalīya, one al-ʿIbad̄ya, one al-Jāfar̄ya and one al-Zāid̄ya traditions. This also shows the variety of different traditions

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$ Ebert in: Islam in the World today, edited by Ende, Steinbach, 192.31

$ Hallaq, Introduction to Islamic Law, 163.32

$ ibid, 169.33

$ ibid, 169.34

$ ibid, 167.35

$ The list of the countries is attached as annex to this article.36

$ not including the Sultanate of Oman and the Hashemite Kingdom of Jordan.37

within the jurisprudence which make it difficult to use one term to make clear statements. It is easier to find common ground among countries with a Muslim majority population to accept modern means of dispute resolution in their respective countries. Out of the 48 countries with a Muslim majority, 33 are members of the New York Convention and only fifteen are not contracting states to the convention. !3.6. Two Perspectives on Shariʿa Within Muslim discourse, Shariʿa designates the rules and regulations governing the lives of Muslims, derived in principal from the Qurʾān and ḥadīṯ. In this sense, the word is closely associated with fiqh which signifies the academic discussion of divine law.  One can approach the definition 38

of Shariʿa in a broad, and a narrow, but more pragmatic sense.  Broadly 39

defined, Shariʿa is all the laws of Islam including Islam’s complete religious and liturgical, ethical, and jurisprudential systems. It consists of “everything written by Muslim jurists throughout the centuries” and narrowly construed, “the Shariʿa is confined to the undoubted principles of the Qur’an, what is true and valid of the Sunna, and the consensus of the community represented by its scholars and learned men during a certain period and regarding a particular problem, provided there was such a consensus.”  40

A more pragmatic approach is to consider Shariʿa as ”a rather dynamic subject which is in a stage of constant development.“  It consists 41

of undisputed principles (e.g. the five pillars of Islam: monotheism and Mohammed's prophethood (šahāda), five daily prayers (ṣalāt), alms-giving (zakāt), fasting during ramadan (ṣaum) and pilgrimage (ḥaǧǧ) to Mecca) and a vast amount of debates among legal schools, scholars and religious movements. Throughout history many claimed to be able to provide a definition of Shariʿa or to have derived their opinion in the name of Shariʿa. Often these supposed Shariʿa-conforming opinions were the subject of political, legal and religious discourses. Even within religious movements and groups it is difficult to agree upon one definition of Shariʿa. Tariq Ramadan, grandson of the founder of the Muslim Brotherhood (al-ʾiḫwān al-muslimūn), Hassan al-Banna, described Shariʿa as one of the most disputed terms amongst the members of the Muslim Brotherhood.  42

It can be summarised that one true definition of Shariʿa cannot be found and it appears reasonable to make the “dynamic system of Shariʿa accessible by studying the legal theory and legal sources rather than individual rulings.“  43

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$ Hooker in: Encyclopedia of Islam, Volume IX, Brill 1997, 321.38

$ Rohe, Das Islamisches Recht, 9.39

$ Ahmed Zaki Yamani, Address at the New York University School of Law (Oct. 24, 1978), in George Sayen, 40

Arbitration, Conciliation, and Islamic Legal Tradition in Saudi Arabia, 211, 239.

$ Rohe, Das Islamische Recht, 6.41

$ Address of Tariq Ramadan, (April 1st 2011) at American University of Beirut.42

$ Rohe, Das Islamische Recht, 9.43

4. Sources of Law and Legal Theory, uṣūl al-fiqh Iǧtihād is described as a central term in the relationship between theory and practice in Islamic law and the ”greatest possible effort by a qualified jurist to reach a legal decision within the framework of Shariʿa“.  44

Different sources of law in Shariʿa are described in a ḥadīṯ referring to a dialogue between the Prophet Mohammed and Mu´ad ibn Gabal who was sent to Yemen as a judge or governor  . "According to what will you judge? 45

According to the Book of God, replied Mu'ad. And if you find nothing therein? According to the Sunnah of the Prophet. And if you find nothing therein? Then I will exert myself (exercise iǧtihād) to form my own judgment." Depending on the viewpoints of the different legal schools in Islam different components of the legal theory can be summarised.  46

1.) The Qurʾān; 2.) Sunna, life of the prophet and ḥadīṯ, sayings of the prophet; 3.)ʾiǧmāʿ, consensus of legally trained scholars; 4.) qiyās, analogy; 5.)ʾistiḥsān, juristic preference; 6.)ʾistiṣlāḥ, al-maṣāliḥ al-mursala, the most beneficial for the community; 7.) madḥab al-ṣaḥābī, opinion of the companions of Mohammed; 8.)´urf, customary law; 9.) sadd aḏ-ḏarāʾiʿ, blocking the means; 10.) istiṣḥāb, continuance and šarʿ man qablanā, laws revealed prior to the advent of Islam. !The following section examines these parts of legal theory according to conformity of ADR and Shariʿa. !1.) the Qurʾān!The Qurʾān is the main source of Shariʿa. This is undoubted among Islamic legal and religious scholars. Various suras can be found in Qurʾān referring to the duty to act justly and to find mutual agreements if parties are in dispute. The list of references must be inevitably partial due to the different opinions in legal schools and traditions. The two suras 4:35 and 4:128 are referring to family disputes. 4:128 provides a general duty to settle disputes by finding mutual agreements. „Sulḥ (here translated as „peace“, other translations   use the term 47

„settlement“) is the best“, this sura is often cited to emphasise the obligation to seek a balance and equilibrium between diverging opinions. 4:35 gives a procedural framework of dispute resolution which reminds of arbitration. Both parties appoint an arbitrator (ḥakaman) who is representing the parties and the families' perspective. These arbitrators are neither judges nor legal representatives in terms of advocates or lawyers. They are authorised to make a mutual decision and are expected to not merely present their parties' perspective. At the same time they belong to the family of the respective party and have special knowledge of the family background. They are trusted by the parties and finding an optimal but fair solution is entrusted to their care. !!

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$ Jokisch, Iǧtihād in Ibn Taymiyya´s fatāwā, in Gleave: Islamic Law. Theory and Practice, 119.44

$ Rohe, Das Islamische Recht, 44.45

$ Ibid, 43-74.46

$ The Qur‘an, A new Translation by Tarif Khalidi, 77.47

Within the Muslim community (49:9) and among the monotheistic religions (3:64) Qurʾān advises to seek settlement of disputes. Based on the latter, HRH Prince Ghazi bin Muhammad bin Talal of the Hashemite Kingdom of Jordan initiated the „common word initiative“ in response to Pope Benedict XVI’s lecture at the University of Regensburg on 12 September 2006.  48

Furthermore, the Qurʾān instructs the believer to always act justly (5:8, 6:152, 4:58, 16:97), respect the property of others (4:58), especially the entrusted goods from orphans (6:152) and holds out the prospect of a reward if these rules are followed (16:97). Righteous, fair and honest behaviour is demanded from anyone who acts as a judge (4:58). People are encouraged to communicate in disputes and seek settlements (4:114, 2:182 and 8:1). Furthermore, 3:104, 16:90, 7:29, 42:15, 4:68, and 57:25 emphasise the obligation to act justly. 2:188 particularly forbids bribery and 8:1 obliges people to settle differences which could lead to conflict and war. Furthermore, if adversaries are inclined towards peace, the believer has to accept the offer and give the other side the benefit of the doubt, 8:61. As a kind of general guideline sura 4:128 states in the second half: ”peace is better” or in other translations: ”settlement is the best”. ”There is to be some discussion in later fiqh works as to whether this part of the verse […] refers to conciliation in general, or to such settlements between spouses that are better for them than remaining in a state of tension or allowing a conflict to result in separation. The majority opinion considers this verse as a general exhortation towards ṣulḥ and as referring to all instances of dispute.“  From sura 42:40 it can be derived that forgiveness 49

is considered to be more noble than retaliation. The Qurʾān […] promises ”those who conquer their anger and forgive men” paradise, stipulating as one of the chief conditions of divine forgiveness man´s forgiving those who trespass against them and their striving to forget any injustice they may have suffered and to repel evil with something better.“  50

It can be summarised that the Qurʾān promotes dispute resolution, explicitly in family law, within the Muslim community and amongst the monotheistic religions and provides a procedural framework for solving disputes within the family. !2.) Sunna life of the prophet and ḥadīṯ sayings of the prophet Muslims believe that “Muhammad was God´s chosen messenger; he understood God´s intentions better than anyone else, and acted upon them in his daily life. Hence the exemplary nature of his biography, which became known in the legal literature as sunna — the second major source of law after the Quran.”  The authenticity and dignity of the specific 51

narratives which became known as ḥadīṯ are categorised as ṣaḥīḥ (sound, authentic), ḍaʿīf (weak), or mawḍūʿ (fabricated) according to the content and the chain of narrators (isnād). Sunni and Shia ḥadīṯ collections deviate

� / �12 21

$ http://www.acommonword.com, last accessed January 2013.48

$ Othman, And Ṣulḥ is the Best: Amicable Settlement and Dispute Resolution in Islamic Law, 46.49

$ Ibid, 54.50

$ Hallaq, An Introduction to Islamic Law, 16.51

due to their different opinion regarding the reliability of the narrators and transmitters. The collection of ḥadīṯ by Muhammad ibn Ismāʿīl ibn Ibrāhīm ibn al-Mughīra al-Buchārī al-Dschuʿfī (810-870 A.D.), known as Bukhari, is an accepted and authentic source among Sunni scholars. Several ḥadīṯ in his collection concern conflict resolution. (Volume 3, Book 49, Number 857) Narrated Um Kulthum bint Uqba: That she heard Allah's Apostle saying, "He who makes peace between the people by inventing good information or saying good things, is not a liar." (Volume 3, Book 49, Number 858) Narrated Sahl bin Sad: Once the people of Quba fought with each other till they threw stones on each other. When Allah's Apostle was informed about it, he said, "Let us go to bring about a reconciliation between them." (Volume 3, Book 49, Number 870) Narrated Abu Huraira: Allah's Apostle said, "There is a Sadaqa  to be given for every joint of the 52

human body; and for every day on which the sun rises there is a reward of a Sadaqa for the one who establishes justice among people.” Mulla Muhammad Baqir is an accepted collector of ḥadīṯ among Shia scholars. He highlights the importance of conflict settlement quoting the following ḥadīṯ: "Promoting peace between two persons is worth more than praying and fasting." (Bihār al-Anwār, Volume 76, 43) Various narratives from Muhammed's biography represent him as a well-respected person who was often asked to settle conflicts. One such example is the story of settling a dispute between tribes in Mekka in connection with the renovation of the mosque. The black stone al-Kaʿba had been temporarily removed to facilitate the rebuilding. The clans could not agree on which one of them should have the honour of setting it back in its place. They decided to wait for the next man to come through the gate and ask him to make the decision. It was Muhammed and he asked the elders of the clans to bring him a cloth and put al-Kaʿba in its centre. Each of the clan leaders held a corner of the cloth and they carried it to the right spot together. !3.) iǧmāʿ, consensus of legally trained scholars A decision about a legal question made by legal scholars is called ʾiǧmāʿ. There are various discourses concerning ʾiǧmāʿ. Benjamin Jokisch summarizes "there is no ʾiǧmāʿ about ʾiǧmāʿ”  . One important question is 53

who should be allowed to participate in finding a binding decision upon a legal question. Ibn Taimīya argues that such a consensus can only be made by the companions of the prophet. Shia legal scholars reject iǧmāʿ, as in their perspective the rightful caliph, Ali, was not chosen to be the first following after Mohammed's death. In this respect the consensus which led to the selection of Abu Bakr as the first caliph was wrong. Distinctions are made concerning the quality of the consensus. A definite decision is called ʾiǧmāʿ ṣarīḥ. Due to the difficulties in finding an ʾiǧmāʿ it must be seen as an exemption. An ʾiǧmāʿ sukūtī is described as a consensus which is valid as long as no objection is raised against it. The legal school of al-sāfiʾīya disagrees with this type of consensus because

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$ Sadaqa is voluntary charity and differs to Sakat, the obligatory alms giving.52

$ Jokisch, Iǧtihād in Ibn Taymiyya´s fatāwā, in Gleave: Islamic Law. Theory and Practice, 126.53

remaining silent can be a sign for respect and cannot always necessarily be considered as consent. Regarding the compatibility of ADR and Shariʿa it can be noted that there is no ʾiǧmāʿ declaring the invalidity of ADR. Neither in history nor since ADR became commonly used dispute resolution methods in countries with a Muslim majority, has objection been raised against the practice of ADR. It can be argued that this is a consensus in the absence of objection, ʾiǧmāʿ sukūtī. !4.) qiyās, analogy Various types of legal reasoning are subsumed under the term qiyās. ”The most common and prominent of these methods is analogy. As the archetype of all legal argument, qiyās is seen to consist of four elements, namely: (1) the new case requiring a legal solution [...]; (2) the original case that may be found either stated in the revealed texts or sanctioned by consensus; (3) the Ratio Legis, or the attribute common to both the new and original cases; and (4) the legal norm that is found in the original case and that, owing to the similarity between the two cases, must be transposed to the new case.‟  An analogy can be made between the 54

conduct of the family law arbitration according to sura 4:35 and arbitration in business law. The question of compatibility of arbitration with Shariʿa in a civil law case requires a legal solution, and other fields of law beside family law require an adequate dispute resolution method other than litigation; the Qurʾān provides in sura 4:35 a procedural framework for family law which is very similar to arbitration; Ratio Legis is in both cases to find a solution which takes the parties’ perspectives into account and seeks to increase the likelihood that the parties will accept a final solution because they had the chance to appoint trusted arbitrators of their choice; the concept of the procedural framework given for family law in the Qurʾān can be transported to civil law or other fields of law. On the basis of an argumentum a minora a maius (inference from smaller to bigger) it can be argued that if the Qurʾān provides a procedure in family law for settling disputes between families (4:35) and makes settling disputes a duty among groups of believers (49:9), as well as coming to a common word between monotheistic religions (3:64) it must be adequate to use dispute resolution methods in international law, as well. Based on the argumentum a minora a minus (inference from bigger to smaller) and the argumentum a fortiori (from [the] stronger [reason]) one can argue that if the Qurʾān obliges people to always act justly, one should find suitable and adequate procedures which are practical and useful to fulfil this duty in daily live. ADR methods are a fair procedural framework which allows every person involved to act justly and seek an amicable solution for disputes. One principle in Islamic law is that everything which is not forbidden must be allowed. Based on this principle one can argue that ADR is not forbidden therefore it must be allowed. !!!

� / �14 21$ Hallaq, An Introduction to Islamic Law, 23.54

5.) ʾistiḥsān, juristic preference ʾIstiḥsān is prominent in the school of al-Ḥanafīya.  It is rejected by most 55

of the other legal schools. ʾIstiḥsān is usually used to argue against qiyās. With this instrument undesired legal consequences can be avoided. To support the thesis of compatibility of ADR and Shariʿa one argument can be made with the help of ʾistiḥsān in the field of family law. If one should argue that family law is the only field of law in which the Qurʾān gives a procedural framework similar to arbitration in sura 4:35, family mediation, as another method, may exceptionally be allowed as well because this method allows the parties to even better address their perspectives and through enhancing their communication cultural or religious differences can be overcome, e.g. if non-Muslim parties are involved. Addressing parties’ perspectives and overcoming religious differences can be considered as duties derived from the Qurʾān in sura 4:35 (family law arbitration) and 3:64 (common word). !6.)ʾistiṣlāḥ, al-maṣāliḥ al-mursala, the most beneficial for the community ʾIstiṣlāḥ, al-maṣāliḥ al-mursala is recognised by most of the legal schools as a valid instrument of Islamic legal theory.  It is translated as the 56

consideration of what is most beneficial for society. Generally speaking, the use of ADR is beneficial for all parties in a dispute as the focus of these procedures is on fostering a win-win solution and to strengthen relationships. Al-Ramahi  summarises this point by 57

quoting Eliot Richardson ‘To pursue a lawsuit is to gamble on victory. To elect conciliation is to seek fairness. Victories undermine relationships. Fairness strengthens them. Those who build for the long term would do well to choose conciliation’. In international law ADR can bring parties to negotiate solutions instead of using force and going to war. The example of the successful arbitration on Harnish Islands between Eritrea and Yemen has proven that ADR can avoid armed conflict as a worst case scenario. A historical perspective shows that the history of Islam is also one of flourishing trade within Arabic countries and with countries of other religions. For example, the southern part of the Arabic peninsular established trade with Asian countries and Europe. The ṭariq al-baḥūr, the famous trade route for frankincense reached from Oman via Yemen, Saudi-Arabia further north to the harbours in Jordan and from there to destinations in Europe. Muslim traders were used to settling conflicts with business partners in different countries and of different religions. As there were no competent courts in most of the cases, ADR will have played an important role in the sense that the parties had to settle their disputes with negotiation or by appointing conciliators and arbitrators. In a more systematic and general sense as well as from a historical perspective the use of ADR is therefore the most beneficial for the community. !!!!

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$ Rohe, Das Islamische Recht, 64.55

$ Ibid, 66.56

$ Ramahi, Sulh, A Crucial Part of Islamic Arbitration, LSE Law, Society and Economy Working Papers 12/2008, 1.57

7.) madḥab al-ṣaḥābī, Opinion of the companions of Mohammed The opinion of the companions of Mohammed can be seen as one other source of law in Islamic legal theory.  In a letter by caliph ʿUmar (590-644 58

A.D.) directed to Abū Mūsā al-Ashʿarī on the conduct of a qāḍī the caliph highlighted a number of rules relating to administration of justice. Although doubts appeared about the authenticity of the document, it became of "great importance in the history of Muslim judicial institutions”   The caliph 59

states: "Ṣulḥ (conciliation) is permissible between people, except a conciliation which make what is licit forbidden or forbids what is licit.”  In 60

the second part of the letter he elaborates on the practises of judging. "Take pains to arrive at conciliation so long as judgement (qaḍāʿ) is not clear."  The first statement correlates with the legal principle that 61

everything what is not forbidden explicitly is allowed. Ṣulḥ is seen as permissible as long as it does not contradict this principle. Interestingly, the caliph encourages the finding of amicable solutions as long as the judgement is unclear, regarding the merits of the case. Hallaq describes the institution of peacemakers (muslihūn) from the time before the fifteenth century, who are elders of tribes, imams or other authoritative figures, mediating in conflicts.  "Indeed, many court cases in which the claimants´ 62

evidence was inconclusive were resolved (often at the recommendation of the judge) by such mediators during the process of litigation, and before the judge passed sentence."  63

8.) urf, customary law Urf (customary law) is accepted by most legal schools as one element of uṣūl al-fiqh (Islamic legal theory) as long as it does not contradict Shariʿa.  Based on urf nothing licit can be forbidden and vice versa. The 64

recognition of urf as a legal source is based on Qurʾān sura 7:199. Rauch points out that urf and Shariʿa are legitimised by two different concepts.  65

Shariʿa is the direct revelation of the word of God and it is valid for all Muslims, regardless of their origin or social background. Urf is legitimised by tradition and with respect to the customs of the ancestors. It is valid for the members of the tribal community. In fact, because Muslims can be tribesmen and vice versa the concept of two antagonistic systems is not expedient. More useful is a perspective of two systems which interact and whose borders cannot be clearly differentiated.  Some authors  66 67

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$ Rohe, Das Islamische Recht, 67.58

$ Serjant, The Caliph ʿUmar´s Letters to Abū Mūsā Al-Ashʿarī and Muʿāwiya, 65.59

$ Ibid, 66.60

$ Ibid, 69.61

$ Hallaq, An Introduction to Islamic Law, 58.62

$ Ibid, 59.63

$ Rohe, Das Islamische Recht, 68.64

$ Rauch, Die jemenitischen hiǧras zwischen Stamm und Staat, in: Kemper, Reinkowski, Rechtspluralismus in der 65

islamischen Welt, 67.

$ Ibid, 67.66

$ Ibid, 67.67

distinguish between customary law which does not conform with Shariʿa, al-aḥkām aṭ-ṭāgūtīya or simply ṭḥāgūt; and Shariʿa conforming elements of customary law. An example of a contradiction with Shariʿa is the exclusion of women from heritage. Procedures of conflict resolution based on customary law like sulḥ and taḥkīm al-kabili are predominantly not seen as contradictory to Shariʿa. On the contrary, the procedural design of the processes as described by Serjeant  use elements of uṣūl al-fiqh such as 68

analogy, qiyās based on the own opinion, and raʿy in cases where no precedents exist.  Nowadays the decision-makers in Yemeni conflict 69

resolution based on customary law are expected to be acknowledged in both Shariʿa and customary law and decisions are considered to be in accordance with Shariʿa.  The procedures have many similarities with 70

conciliation or arbitration, e.g. the parties appoint the panel of decision-makers and the element of social pressure on the participants in the procedure is of great importance. In various areas of Yemen more than 80 per cent of business conflicts are solved by taḥkīm al-kabili, a procedure similar to sole-arbitration. Recent scientific research  comes to the 71

conclusion that customary law will remain important in Yemen as long as the court system is not recognised by the populace as a fair and independent institution. Ṣulḥ is used in Saudi-Arabia to solve disputes within tribal communities.  72

9.) sadd aḏ-ḏarāʾiʿ blocking the means Sadd aḏ-ḏarāʾiʿ is translated as blocking the means: anything is forbidden which leads to illicit behaviour. For example, the participation in gatherings where alcohol is consumed is forbidden with recourse to sadd aḏ-ḏarāʾiʿ. The opposing opinion allows it under the aspect that, especially in mixed religious societies, consuming alcohol can be a common social behaviour and it would not be suitable to exclude Muslims from such social events and the benefits which could result from the participation per se.  73

Following this opinion, the participation of Muslims in ADR procedures can be justified, if one were to argue that ADR contradicts Shariʿa. !10.) istiṣḥāb, continuance & šarʿ man qablanā, laws revealed prior to Islam Istiṣḥāb is translated as continuance and describes the presumption that legal relationships should be continued once they are substantiated.  It is 74

based on Qurʾān sura 4:29 and 6:145. Based on istiṣḥāb one can argue that any legal relationship governed by a contract including an arbitration clause remains valid and respective conflict resolution is to be conducted, even if one were to believe that ADR contradicts Shariʿa. Istiṣḥāb is not accepted in al-Ḥanafīya legal school.

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$ Serjeant, Dawlah, Tribal Shayks, the Manṣab of the Waliyyah Saʿīdah, qasāmah, in the Faḍlī Sultanate, South 68

Arabian Federation, V 141.

$ Ibid.69

$ Research and interviews conducted by the author 2006-2008 and 2012.70

$ Corstange, Tribes and the Rule of Law in Yemen, 33.71

$ Maisel, Das Gewohnheitsrecht der Beduinen, 278.72

$ Rohe, Das Islamische Recht, 71.73

$ Ibid, 72.74

Legal content derived from the Tora (taurāt) and the Bible (inǧil) continue to be valid as long as the Qurʾān does not correct them. This continuance of pre-Islamic traditions, e.g. Roman law is referred to as šarʿman qablanā. The institution of conflict resolution outside the court was practised in Roman legal tradition. In fact, the term arbitration is derived from “arbitrari” which is translated as: to examine, to judge. “Roman law made considerable efforts to recognise a variety of extra-judicial mechanisms of dispute resolution to ensure that the controversies and differences between the disputing parties were indeed ended. Roman law used the senior and generic legal term arbitrium or arbitratus to denote a general concept of settling disputes which was substantially different from the judicial process.“  This tradition in Roman law was not changed 75

by the Qurʾān or other sources of Islamic legal tradition. Therefore it can be argued that the tradition of arbitration continues to be valid under the aspect of šarʿman qablanā. !5. Conclusion Adequate Dispute Resolution in the sense of structured procedures and guided communication has been a part of legal decision-making from the time before Islam until today. Procedures were established in different legal traditions which are comparable in their basic design. They express the need for decision-making tools that are efficient, fast, fair and flexible. Although embedded in different legal traditions, conciliation, arbitration and mediation are comparable to sulḥ and taḥkim in the Islamic tradition. There was a renaissance of ADR in the mid- 20th century. In many fields of law ADR was discovered as more beneficial for the parties than litigation and it became the instrument of choice in business and family law. ADR will play an increasingly important role in international law in the future. Based on international laws and promoted by the United Nations, ADR can be used as decision-making tool especially in regions where rule of law in general and trust in fair decision-making in national courts is weak. In many countries national arbitration laws or civil and civil procedural laws allow parties to choose ADR instead of the national jurisdiction which is sometimes burdened with distrust in its neutrality. ADR is compatible with Shariʿa. Many aspects of Islamic legal theory support this thesis. Duties to act justly, seek amicable settlement and use fair procedures can be derived from the Qurʾān and sunna. Furthermore the Qurʾān prescribes procedures of dispute settlement in family law which are similar to arbitration. Examples can be found where the Muslim prophet Mohammed acted as arbitrator or conciliator. Other instruments of Islamic legal theory, which are accepted by the legal schools of Islam to varying degrees, also support, from a more theoretical perspective, the thesis that ADR and Shariʿa are compatible. !!!!!!

� / �18 21$ Milotić: Arbitration: Competence of Roman Arbiter in Rendering the Decision, 1.75

ANNEX: Analysis of countries with a Muslim majority with respect to Shariʿa-proviso, self-designation and state religion (2012) !!!

country name of the state Shariʿa proviso islam state religion NYC1 Afghanistan Art 1: Islamic Republic Art 3 Art 2 20042 Albania - 20013 Algeria - Art 2 19894 Azerbaijan - - 20005 Bahrain Art 1 a) Independent Sovereign

Islamic Arab StateArt 2 Art 2 1988

6 Bangladesh - Art 2 a) 19927 Brunei Sultanate - Art 3 19968 Burkina Faso - - 19879 Chad - - -10

Comoros Federal Islamic Republic - - -

11 Cote d‘Ivoire - - 199112

Djibouti - - 1983

13

Egypt Art 2 Art 2 1959

14

Eretrea - - -

15

Gambia - - -

16

Guinea - - 1991

17

Indonesia - - 1981

18

Iran Islamic Republic Art 4 Art 2 2001

19

Iraq Art 2 Art 2 -

20

Jordan Hashimite Kingdom - Art 2 1979

21

Kosovo - - -

22

Kuwait Art 2 Art 2 1978

23

Kyrgyzstan - - 1996

24

Lebanon - - 1998

25

Libya - but Art 8: Shariʿa for inheritance

Art 2 -

26

Malaysia - Art 3 1985

27

Maldives Art 2: Democratic Republic based on the Principles of Islam

- but Art 10: „one of the basis of all laws“

Art 10 -

28

Mali - - -

29

Mauretania Islamic Republic - Art 5 1997

30

Morocco - Art 6 1959

31

Niger - - 1964

32

Nigeria - - 1970

33

Oman Arab Islamic Independent State Art 2 (basic law) Art 2 (basic law) 1999

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!!

34

Pakistan Islamic Republic Art 31 Art 2 2005

35

Qatar Art 1 Art 1 2002

36

Saudi-Arabia Sovereign Arab Islamic State Art 1 (basic law) Art 1 (basic law) 1994

37

Senegal - - 1994

38

Sierra Leone - - -39

Somalia Art 9 No 2 Art 9 No 1 -

40

Sudan - Art 1: religion of the majority

-

41

Syria Art 3 Nr 2 - 1959

42

Tadzhikistan - - -

43

Tunisia - Art 1 1967

44

Turkey - - 1992

45

Turkmenistan - - -

46

UAE Art 7 Art 7 2006

47

Uzbekistan - - 1996

48

Yemen Islamic Arab Republic Art 3 Art 2 -

North Cyprus and Palestine are not recognised by the UN and do not have an own constitution

country name of the state Shariʿa proviso islam state religion NYC

References:

1 Al-Ramahi, Aseel: Sulh: A Crucial Part of Islamic Arbitration, LSE Law, Society and Economy Working Papers 12/2008

2 Bälz, Kilian: Islamic Legal Studies Program, Harvard Law School, Shariʿa Risk?: How Islamic Finance has Transformed Islamic Contract Law, 2008

3 Colon, Julio C, Choice of law in Islamic Finance, Texas international Law Journal Volume 46, Number 2, 2010

4 Corstange, Daniel: Tribes and the Rule of Law in Yemen, Paper prepared for delivery at the 2008 Annual Conference of the Middle East Studies Association, Washington, D.C., 22–25 November, 2008.

5 Disch, Sarah: Islamisches Familienrecht in der Diaspora, Lizentiatsarbeit der Philosophischen Fakultät der Universität Zürich, 2010

6 Duncan McKenzie, Islamic Finance, 29/10/2008, http://www.mondovisione.com/media-and-resources/news/Islamic-finance

7 Encyclopaedia of Islamic Civilisation and Religion, edited by Ian Richard Netton, Routledge, 2010

8 Geis: „Umstritten, aber wirkungsvoll: Die Frankfurter Flughafen-Mediation“ HSFK-Report 13/2003, Hessische Stiftung für Friedens- und Konfliktforschung

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9 Hallaq, Wael: An Introduction to Islamic Law, Cambridge University Press, 200910 Hamilton, Fiona: Non-Muslims turning to Shariʿa courts to resolve civil disputes,

London Times, Published: 21 July 200911 Hooker in: Encyclopedia of Islam, Volume IX, Brill 199712 Jokisch, Benjamin: Iǧtihād in Ibn Taymiyya´s fatāwā, in: Gleave, Robert: Islamic

Law, Theory and Practice, 1997 (pages 119-137)13 Khalidi, Tarif: The Qur‘an, A new translation by T. Khalidi, Penguin Classics, London,

200814 Kwiatkowska, Barbara: The Eritrea Yemen Arbitration: Landmark Progress In The

Acquisition Of Territorial Sovereignty and Equitable Maritime Boundary Delimitation, in: IBRU Boundary and Security Bulletin, 2000

15 Maisel, Sebastian: Das Gewohnheitsrecht der Beduinen, Leipziger Beiträge zur Orientforschung Band 18, Peter Lang Verlag Frankfurt, 2006

16 Milotić, Ivan: Arbitration: Competence of Roman Arbiter in Rendering the Decision, in: Croatian Arbitration Yearbook, 1999

17 Othman, Aida “And Ṣulḥ is the best: Amicable Settlement and Dispute Resolution in Islamic Law”, Ph.D. Dissertation, Harvard University, Boston, 2005

18 Price Waterhouse Coopers: Shariʿah-Compliant funds: A whole new world of investment, 2009

19 Rauch, Christoph: Die jemenitischen hiǧras zwischen Stamm und Staat, in: Kemper, Michael, Reinkowski, Maurus: Rechtspluralismus in der islamischen Welt, De Gruyter, 2005

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Journal of Semitic Studies XXIX/1, 198422 Serjeant, R.B.: Dawlah, Tribal Shayks, the Manṣab of the Waliyyah Saʿīdah,

qasāmah, in the Faḍlī Sultanate, South Arabian Federation, in: Serjeant, Customary and Shari´ah Law in the Arabian Society, Variorum 1991

23 Sing, Manfred: Progressiver Islam in Theorie und Praxis, Die interne Kritik am hegemonialen islamischen Diskurs durch den „roten Scheich“ Abḍallāh al-ʿAlāyilī (1914-1996), Ergon Verlag, 2007

24 The Koran, Critical Concepts in Islamic Studies, Edited by Colin Turner, Volume IV, Translation and Exegesis, Routledge, 2004

25 Timothy, Martin: International Mediation: An Evolving Market, in: Contemporary Issues in International Arbitration and Mediation, The Fordham Papers, 2010

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� / �21 21