Bridging Legal Modernity and Tradition: Alternative Dispute Resolution in Muslim Contexts
Abstract
From the outset, a non-adversarial approach to dispute resolution has been favoured in Muslim tradition – drawing inspiration from the Quran and the example of the Prophet Muhammad. While the Shari‘a was to crystallise into fiqh – positive law set forth by various schools of law – principles of equity have remained vital in dispensing justice to disputants. Equity is at the heart of modern alternative dispute resolution (ADR), a response to the limits of the civil justice system in dealing with the all the cases that come through it. This lecture argues that ADR can serve to bridge legal modernity in diverse Muslim contexts, balancing the need to deliver not only formal remedies but also perceived justice.
Historically, the advent of European colonialism imposed new laws on areas with Muslim populations, giving rise to new strands of Islamic law such as the Droit Musulman in Algeria and Anglo-Muhammadan law in India. Colonialism led to a truncation of the fiqh and a rupture in the historic memory with regard to law in Muslim societies. Decolonisation saw the emergence of new needs and the development of constitutions and codes in Muslim countries, based on Western colonial models and Western laws, with the incorporation of inherited principles and practices wherever possible.
One response to that state of affairs was the rise of the phenomenon of ‘Islamisation’ of laws in some Muslim countries in the 1970s, notably in the fields of personal and commercial laws. The trend has since taken more complex forms, often stirred with economic and cultural as well as political nationalism. As a result, the positive laws of such countries or their interpretation have at times come into conflict with western legal norms and those of international conventions designed to protect the human rights of the individual.
ADR today offers the prospect of revisiting some of the essential principles that underlie Muslim teachings and jurisprudence on the protection of religion (din), personhood (nafs), offspring (nasl), property (maal) and reason (‘aql). Thus tradition can serve not as an oppositional force but a resource in bridging the needs of contemporary legal systems and notions of justice, as expressed in the plurality of customs and values of the Muslim communities.
Author
Dr Amyn Sajoo
Amyn B. Sajoo is a Scholar-in-Residence at Simon Fraser University’s Centre for Comparative Muslim Studies in Vancouver, Canada. A specialist in international human rights, civil society and public ethics, Dr Sajoo was educated at King's College London and McGill University, Montreal. He has taught at the University of British Columbia, McGill, Simon Fraser University and The Institute of Ismaili Studies, and was a 2005 Visiting Fellow at Cambridge University.
Dr Sajoo earlier served as a human rights advisor with the Canadian department of Justice in Ottawa. He also served as a Canada-ASEAN Fellow at the Institute of Southeast Asian Studies in Singapore, where his fieldwork in Indonesia and Malaysia culminated in the monograph Pluralism in Old Societies and New States (1994). He subsequently led a comparative civil society seminar project at the IIS, and was editor of the ensuing volume, Civil Society in the Muslim World: Contemporary Perspectives (2002).
As the chief editor of the IIS’ Muslim Heritage Series, Dr Sajoo launched A Companion to the Muslim World in 2009, which was followed by A Companion to Muslim Ethics in 2010 and A Companion to Muslim Cultures in 2011. His work on plural modernities resulted in the edited volume Muslim Modernities: Expressions of the Civil Imagination in 2008. Dr Sajoo is the author of Muslim Ethics: Emerging Vistas (2004), and has contributed extensively to scholarly journals and anthologies, as well as to the newsmedia on both sides of the Atlantic - including the Guardian, the Globe & Mail, the Times Higher Education Supplement, and the Canadian Broadcasting Corporation.
The latest volume in the Muslim Heritage Series, published in 2018 is The Shari‘a: History, Ethics and Law
