In Search of Harmony: the Alternative Dispute Resolution

In Search of Harmony: The Alternative Dispute Resolution

Traditions of Talmudic, Islamic, and Chinese Law

Introduction

Contentious, costly, and slow, the viability of litigation as a dispute resolution tool wanes with each passing year. In its place, prospective litigants increasingly demand cheaper and more efficient meansof resolving their disputes. Alternative dispute resolution (“ADR”)techniques, like mediation and arbitration, often provide parties with the added freedom and flexibility to achieve creative, win-win solutions in a timely fashion.

These favorable characteristics have generated a growing interest in ADR among American legal scholars. One avenue of particular interest, is the use of ADR in different legal traditions. Though there is a commonmisperception that ADRis a novel western idea, many eastern legal systems have employed similar techniques for centuries.[1] In such systems, the use of ADRfrequentlystems from deeply held religious, ethical, and philosophical values. In light of their experience, such systems offer valuable perspectives on the virtues of ADR, and its ideal role inthe resolution of everyday disputes. The following discussion examinesthree legal systems with longstanding ADR traditions – the Islamic, Talmudic, and Chinese.[2]

The discussion begins with a general introduction to the Islamic legal system in Part I. Part II describes the dispute resolution techniques of the system and explorestheir roots in the Qur’an. Next, Part III provides a general introduction to the Talmudic legal system. Part IV describes the techniques employed in the Jewish tradition, while reconciling the concept of ADR with the divine nature of Talmudic law. Part V then offers a general introduction to the Chinese legal system. Part VIdescribes the dispute resolution techniques of the Chinese system, and examines their grounding in Confucian ethics and philosophy. Finally, Part VIIdraws parallels between the systems, while offering some closing remarks on the adaptability of ADR methods across cultures.

I. The Islamic Legal System

For almost fourteen-hundred years, Muslims have looked to Islamic law to bring order and structure to their lives.[3] Emphasizing divine principles, the law seeks to instill Islamic society with a deep sense of moral responsibility and justice.[4] The Islamic legal system extends to all aspects of life.[5] Not limited to the typical legal-illegal dichotomy, it categorizes the full panoply of human behavior amongst five categories – obligatory, commendable, permissible, reprehensible, and forbidden.[6] Islamic law is a text-rich tradition, defined by its sources.

The Qur’an is the revealed scripture, and founding document, of Islam.[7] According to the Islamic faith, the Qur’an “is the uncreated word of God, believed to have been revealed word for word in the Arabic language through [the] prophet, Muhammad.”[8] Incorporating over six thousand verses, the Qur’an sets forth the most fundamental principles of Islamic law.[9] These principles generally come in two forms, known as ibadat and mu’amalat, respectively.[10] Covering matters like prayer, fasting, and pilgrimage, ibadat principles address an individual’s responsibilities to God; while mu’amalat principles govern matters of human interaction like marriage, divorce, inheritance, and theft.[11]

The oral tradition, or Sunnah, is next in the hierarchy of Islamic legal sources.[12] The Sunnah expands upon the principles set forth in the Qur’an, by passing on the teachings of the Prophet Mohammad as demonstrated by his words and conduct throughout his lifetime.[13] “[T]he content of the Sunnah is found in hadith… statements which have been passed on or transmitted in a continuous and reliable chain of communication, from the prophet himself, to present adherents.”[14] Each hadith statement incorporates two parts: a normative rule and its chain of origin.[15] The chain of origin establishes the reliability of the rule by documenting its links to prior authoritative sources.[16] The hadith statements include a wealth of material, including Qur’anic stories, proverbs, anecdotes, history, and even guidance on the most minute details of daily life.[17]

Over time, the collective efforts of Islamic legal scholars has generated consensus on many issues. Such consensus represents another source of Islamic law, known as Ijma.[18] Akin to prior precedent in the common law tradition, Ijma represents settled law with binding authority.[19] Thus, when deciding a dispute, an Islamic jurist, or kadi, must investigate whether the issue in question is settled by Ijma.[20] If the matter is conclusively resolved by Ijma, the kadi must adhere to the established rule.[21] As a practical matter, however, the existence of divergent schools of Islamic legal thought complicates the notion of legal consensus.[22] The four major schools – the Hanafi, Shafi, Hanbali, and Maliki – may each have their own version of consensus, given their differing views on the authoritative weight of certain passages in the Qur’an or hadith statements in the Sunnah.[23]

The final major source of Islamic law is analogical reasoning, known as Qiyas.[24] Qiyas offers a means of extending the Qur’an, the Sunnah, and the Ijma to novel matters not explicitly covered in their texts.[25] As an accepted authoritative source, Qiyas must be distinguished from independent legal reasoning and problem solving, known as Ijtihad – a controversial issue among the different schools of Islamic legal thought.[26]

In the Islamic legal system, disputes are resolved in accordance with the principles set forth in these sources. As in other legal systems, this process may sometimes manifest itself in the form of formal litigation. In the Islamic tradition, however, such an approach represents the exception rather than the rule. Instead, for the reasons discussed in Part II, the Islamic legal system embodies a distinct preference for alternative methods of dispute resolution, like mediation and reconciliation – reflected in the traditional Islamic concept of sulh.

II. The ADR Tradition of Islamic Law

Throughout its history, the Islamic legal system has emphasized the importance of sulh, which embodies the western “concepts of compromise, settlement, reconciliation, and agreement.”[27] Focused on ascertaining the truth and dispensing justice with minimal procedural distractions, the Islamic tradition has always preferred sulh over formal litigation.[28]

A. The Workings of Sulh

The preference for sulh among Islamic legal systems is often a reflection of larger social and cultural perceptions of conflict generally. In most Middle Eastern countries, for example, the notion of conflict typically carries a highly negative connotation.[29] Viewed as “disruptive” and “dangerous” to social cohesion, conflict represents something to be avoided.[30] This creates strong incentives to minimize all forms of conflict, even those that might be considered “constructive” in other cultures. Understandably, this mindset makes formal litigation an unpopular dispute resolution mechanism, given its inherent adversarial elements.

Instead, sulh represents the preferred method of conflict resolution in the Islamic legal system.[31] For example, in the Saudi Arabian legal system over ninety-nine percent of civil disputes end in some form of sulh.[32] The most common form of sulh involves mediation and conciliation;[33] facilitated by either a kadi or prominent member of the community.[34] During the process, the facilitator assists the parties as they attempt to reach a voluntary settlement. The facilitator can suggest various settlement proposals, but cannot force a final agreement on the parties.[35] Once the parties ultimately reach a settlement, however, it acts with the same force as a binding judgment.[36] Having effectively surrendered all rights to claims on the matter, subsequent attempts by either party to initiate a related suit will be summarily rejected by an Islamic court.[37] Thus, in many respects, the process outwardly appears no different than western-style mediations.

Upon closer examination, however, the actual method of accomplishing sulh is quite distinct. The most noticeable difference is that a facilitator generally plays a far more proactive role during a sulh negotiation. Rather than act as a mere neutral observer, the facilitator delves deep into the actual substance of the conflict, openly evaluates the arguments of both sides, and actively takes part in negotiating a solution.[38] In many instances, the facilitator must accomplish this without any initial face-to-face interaction among the parties, which raises the risk of embarrassing a party or antagonizing the situation.[39]

A sulh negotiation also differs with respect to its overall focus. In other legal systems, mediators emphasize shared-interests and cooperative problem solving in an attempt to “separate the people from the problem.”[40] Sulh negotiations, however, take the exact opposite tack. Instead, they prioritize any relational issues, viewing the repair of damaged relationships (whether personal or commercial) as pivotal to the restoration of “harmony and solidarity” among the parties.[41]

Though sulh is available to resolve all manner of civil disputes, its use is most prevalent in the domestic arena. The relationship-based focus of sulh makes it particularly attractive to parties seeking to resolve domestic conflicts.[42] In fact, sulh generallyserves as the primary vehicle for resolving marital disputes, especially given the unfavorable standing of divorce in Islamic law.[43] Sulh negotiations in the marital context can be slightly different from other negotiations, however. In such instances, members of the extended family often serve as facilitators in the dispute. This practice is expressly sanctioned in a Qur’anic passage that reads:

If ye fear breach between them twain, appoint two arbiters, one from his family, and the other from hers; if they wish for peace, Allah will cause their reconciliation….[44]

In large part, the rationale for this approach stems from Islamic views of family and its importance.[45] Because marriage is often viewed as the union of two families rather than two people, marital disputes represent a shared problem that both families must cooperate to resolve.[46] Thus, the use of family facilitators is not perceived as an attempt to gain an unfair advantage, but rather a method of resolving the dispute while reinforcing the importance of Islamic family life.

B. Sulh Represents the “Best of Judgments”

In the Islamic legal system, the law represents the divine will of God. Perfect and infallible, the law embodies absolute truth and justice. In similar religious based legal systems, such asTalmudic law discussed in Parts III andIV infra, this quality has sparked vigorous debate over the propriety of employing ADR. The Islamic legal tradition, however, has never questioned the propriety of settling conflict through ADR mechanisms. The principal reason for this difference is that the Qur’an, unlike the Written Torah, expressly promotes the use of such mechanisms – collectively referred to as sulh. In one passage, for example, the Qur’an declares:

The Believers are but a single Brotherhood: So make peace and reconciliation between your two contending brothers….[47]

One of many such passages,[48] this demonstrates the preference for sulh over more adversarial forms of adjudication in Islamic law. Further examination of Islamic legal texts, reveals that this preference stems from both the virtues of sulh itself, and the perceived shortcomings of litigation. One hadith statement, for example, suggests that the Prophet Muhammad was quite skeptical of judicial proceedings, given the potential persuasiveness of self-interested parties and the inherent fallibility of human judges. Addressing two quarrelling neighbors, the Prophet warned:

I am only a human being and litigants with cases of disputes come to me, and maybe one of them presents his case eloquently in a more convincing and impressive way than the other, and I give my verdict in his favor thinking he is truthful. So if I give a Muslim’s right to another by mistake, then that property is a piece of fire, which is up to him to take it or leave it.[49]

This hadith statement manifests an obvious concern over the prospect of judicial error resulting from the deceptive tactics of self-interested litigants. Indeed, such skepticism of litigation is found throughout the Islamic legal system. This is especially true regarding the use of attorneys, known as wakils. Islamic legal systems generally disfavor the use of professional advocates like the ones found in western legal systems.[50] In many instances, a wakil may only appear as the agent or proxy for an absent party; not as their advocate.[51] The rationale underlying this prohibition, is that professional attorneys “use dilatory tactics, add complexity to straightforward matters, distract the parties from their ‘moral obligations,’ and ‘subvert the moral mission of the trial’ court.”[52] In place of attorneys, such systems entrust greater responsibility to the kadis presiding over disputes.[53] The belief is that kadis can best ascertain the truth when the parties represent themselves, and at the same time, remain available to guide and protect either party during the process.[54] Perhaps the greater benefit, however, is that the arrangement grants a kadi significant power and discretion to promote the use of sulh. “For example, if a kadi believes that a settlement or compromise would yield a just outcome, he will aim – sometimes even forcefully – to persuade the parties before him to come to an agreement and settle their disputes amicably.”[55] Thus, in many respects, the Islamic legal system embodies a noticeable slant towards the attainment of sulh. At least in part, the preference stems from the fact that sulh forces the parties to resolve the their own disputes, and thus, avoids the concerns of judicial error that are inherent in litigation.[56]

The Islamic preference for sulh is more than a mere indictment of litigation, however. Indeed, sulh is commonly referred to as “the best of judgments” because of its own inherent virtues.[57] As indicated by the Qur’anic passage at the beginning of this section, Muslims appear to have a fundamental obligation to foster peace and solidarity with the greater Islamic community.[58] Sulh plays a vital role in fulfilling this obligation, because it avoids the strive and ill-feelings that often accompany winner-take-all litigation.[59] Thus, the principal “purpose of sulh is to end conflict and hostility among believers so that they may conduct their relationships in peace and amity.”[60]

III. The Talmudic Legal System

For almost four thousand years,members of the Jewish faith have relied on Talmudic law to preserve their heritage and define their collective identity as a people.[61] Even when forced into exile, and scattered across the globe during the Diaspora, the Jewish people remained united by this shared system of law and morality.[62] The system touches nearly every aspect of daily life, covering matters as pedestrian ashygiene, food preparation, and prayer;and as lofty as ethics, philosophy, and law.[63]

According to the Jewish faith, God revealed the law to Moses at Mount Sinai.[64] Today, “the law is represented, from start to finish, as a seamless, cogent, and harmonious statement of God’s will, … located in the Torah.”[65] Lying at the heart of this text-rich tradition, the Torah is set forth in the first five books of the Hebrew Bible – Genesis, Exodus, Leviticus, Numbers, and Deuteronomy.[66]

Despite its privileged position as the ultimate authority in the Talmudic legal system,the “Written Torah”does not represent an all-inclusive statement of divine law.[67] Instead, it imparts the most fundamental principles of Judaism, leaving further interpretation and explanation to a line of enlightened scholars with roots as far back as Moses himself.[68] Passed down orally from generation to generation, these teachings came to be known as the “Oral Torah,” and shared equal status with their written counterpart.[69]

For centuries, Jewish scholars studied and taught the Oral Torah in its original verbal format.[70] The onset of the Diaspora, however, raised the risk that the tradition might be lost as both time and distanceworked to sever the links between the Jewish people and their past.[71] In response, Jewish scholars embarked on an ambitious mission to reduce the Oral Torah to writing, so that its teachings could be preserved and studied in perpetuity. Over a century later, the Mishnah stood as the product of this effort.[72] The Mishnah represents a systematic code of law, divided into sixty-two tractates, which together provide an authoritative explanation of the Jewishoral tradition.[73]

In turn, two hundred years of debate and interpretationof the Mishnah, led to the creation of the Talmud.[74] Including both commentary on the Mishnah and the text of the Mishnah itself, the Talmudis “a sustained, systematic amplification and analysis of passages of the Mishnahand other teachings….”[75] Today, the Talmudserves as the primary resourcefor individuals seeking to consult Talmudic law. Full of internal debate and discourse, the commentaries state the basic rules of the Talmudic legal system and explain their application to the everyday affairs of Jewish life.[76] The system extends even further than the Talmud, offering additional guidance in the form of legislation, scholarly restatementsand codifications, andthe written advice (responsa) of renowned rabbis asked important legal questions.[77]