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Introduction

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Mathieu Tillier
p. vol 140, 13-24

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  • 1 By "State" we mean a set of institutions constituting sovereign political authority over a given te (...)

1Of all modes of conflict resolution, the judicial mode is the best documented for medieval and modern Islam. In classic Islamic law (fiqh) the Qadi’s court is set up as the preferred space for dealing with disputes, along with other State courts,1 such as the police jurisdiction (shura), the isba and the maālim (Tyan, 1960). Biographical chronicles and dictionaries make the Qadi the judge par excellence and preserved documents, such as those of aram al-Sharīf in Jerusalem for the end of the 8th/14th century, or later Ottoman court registers (sijillāt) confirm in many respects the importance of state auctions. Early, no doubt in the Umayyad era, justice was identified as an essential prerogative of power, whose legitimacy relied, in particular, on its ability to preserve a social equilibrium based on an Islamic legal order. According to periods and dynasties, the sovereign (caliph, sultan, emir, vizier) himself assumed the exercise of justice (retained justice), or delegated it to judges (ākim-s) who represented him under various titles ī, mutasib, āib al-shura. Through these institutions, the delegating authority presented itself as the main actor in the settlement of conflicts, even going so far as to make lawyers recognize its monopoly in criminal matters (Tillier, 2009: 311). Non-Muslim communities retained or developed their own judicial system, to which the dhimmīs were supposed to submit as a matter of priority in cases of dispute among themselves (Simonsohn, 2011), but whose authority Muslims tended to minimize (Edelby, 1950: 279-80).

2Individuals answerable to the law would themselves find an interest in bringing cases before state jurisdictions. The Qadi’s court, in particular, was easily accessible: in every large city – and increasingly in smaller towns – the Qadi would receive litigants at the mosque or in his home several days a week. The political authority most often recruited its judges among jurists, in an effort to cover these men with aura of competence in the eyes of the litigants. Their judgments were vested with authority and enforceable, both by the delegating authority – thus facilitating the use of coercion – and by the public nature of the mission – social pressure inciting a condemned person to fulfill his obligations. Geographic coverage and temporal continuity through the preservation of archives, made the Muslim judiciary attractive to litigants. Finally, and because it was based on a Muslim right established by a limited number of legal schools, Qadi justice offered the advantage of predictability: a litigant who knew the law could in advance estimate his chances of winning his trial.

  • 2 For a comparable distinction in the medieval West, see Débax, 2001: 144.

3The State, however, never held a monopoly on dispute resolution in Islam. Many social practices escaped the Qadi’s purview so that private actions never completely disappeared. In civil matters, alternative methods for dispute resolution continued to exist, either through adjudication (by an arbitrator) or through conciliation (possibly facilitated by a mediator) (see Philip Gulliver, quoted by Harries, 1999: 174). These alternatives are distinguished from state justice by their contractual nature: while the word of an official judge became binding as soon as it was notified by a plaintiff who could then summon a recalcitrant defendant, the arbitrator and mediator could only act by virtue of a consensual recognition of their roles by both parties (see Cadiet, 2011: 149). Such alternative modes offered different solutions to litigation. As a decision-maker, the arbitrator (akam, or muakkam), would render a verdict generally upheld as enforceable which determined which of the opponents was in his right. Conciliation, on the other hand, was a process of negotiation, concluding with an amicable agreement. The latter could be contracted by the parties alone, with or without the help of third party mediation (see Cadiet, 2011: 150). The latter did not pronounce sentence, but favored the discovery of a medium term acceptable to each party who were called upon to compromise their differences in order to end the dispute. This process of conciliation, in Muslim law, falls within the category of ul2.

4These alternative processes were mobilized in different situations. Arbitration (takīm), a judicial mode for dealing with a dispute, applied to judicial cases. The role of the arbitrator therefore resembled that of the Qadi, without, however, the categories being interchangeable. By definition, the Qadi, an official judge, should in no case be confused with an arbitrator, who owed his position to a consensus among litigants. Conciliation, on the other hand, corresponded to the treatment of more varied conflict situations which may or may not have been prone to legal treatment. Daily disputes between individuals, even between groups, could be resolved by the intervention of an institutional or private mediator, solicited by the interested parties. A conciliation process could also take place in non-legal disputes, such as personal rivalries, social competition, or in power relations and the abuse of personal power. In the history of Islam, such antagonisms are mainly visible in the context of the political elite, and several contributions to this collection study the dynamics of resolution within the framework of a court. Such conflicts in the Qadi’s court would have been considered extra-legal and the Qadi incompetent to judge these – it is not the role of the fiqh to regulate the attribution of honors and privileges. Their resolution however, is not always extrajudicial. While some conciliation procedures may appear improvised, others use a standardized framework, either by adopting codes of social interaction or by implementing formal procedures similar to a judicial resolution. By extension, conciliation may also include acts which do not correspond to mediation stricto sensu, but to an intercession (Ar. shafā'a) characterized by the intervention of a third party on behalf of a disadvantaged party in the conflict. The intercessor nevertheless approaches the mediator when the statutory authority is both judge and party, especially in situations of dissymmetrical conflicts between a hierarchical superior (who is also a judge) and his subordinate.

5The ten contributions to this thematic collection explore the functioning of arbitration and conciliation in various Maghrebian and Near Eastern contexts from the emergence of Islam to the end of the eighteenth century. While many studies, pointless to list here, offer a detailed overview of the arbitration and conciliation practices in contemporary times, it seems useful to restrict the field of investigation to earlier periods that remain relatively unexplored because of the limitations of historical sources. Indeed, alternative modes of conflict resolution, because they occupy a marginal place in the normative and institutional framework promoted by Islamic political and legal authorities, are hardly visible in the texts. Though it was theorized in a number of fiqh books, as Delfina Serrano's and my own contributions show, arbitration (takīm) appeared as a non-negligible even if inferior mode of adjudication, a mode which was hardly representative of the Islamic ideal as embodied by the Qadis. While medieval authors devoted a number of biographical works to the latter, none deals with Muslim arbitrators. In the Fihrist of bibliographer Ibn al-Nadīm (m. c. 385/995), the only book that could approach this genre concerned the arbitrators of pre-Islamic Arabia (Ibn al-Nadīm, Fihrist: 96). Although arbitration had undoubtedly permeated the daily life of Muslims, it was devalued by its association with ancient pagan customs and the dramatic events of the founding fitna of 656-657 which, despite (or perhaps because of) a failed arbitration, witnessed the disintegration of the founding umma. The historian is thus, more often than not, reduced to deducing the existence of arbitrators without being able to identify them precisely. The problem posed by conciliation is of a different order. As Aida Othman showed in her seminal work of 2005 and 2007, the ul imposed itself in Islamic representations as an ideal mode of conflict resolution. Despite this recommendation, conciliation for a long time remained among the shadows of history because of a great dispersion of references to this process in the narrative sources and documents.

6This volume of the REMMM review, does not intend to treat exhaustively a subject whose exploration remains in its early stages. The two sub-themes, which distinguish the alternatives to the judicial resolution of disputes versus conflict mediation among elites, meet to constitute a common reflection around three main axes.

Actors and procedures

7The identity of those individuals selected as arbitrators, as we have just seen, is difficult to grasp, and the articles compiled in this publication barely shed any new light on the question. Though some names relating to the very origins of Islam were found, it is mainly in a negative light, based on the records of legal practitioners, that I concluded in my own article that arbitrators were probably chosen in the 4th/10th century among a pool of lawyers familiar with legal forms, maybe those acting daily as witness-notaries. This problem of identification is partly due to the terminology used by the sources. Arbitrators were rarely labelled as such, and historians must unravel their identities based on a euphemistic vocabulary (bayna-nā fulān, an expression that Wissam Halabi-Halawi and I noticed in different contexts) or on circumstances. Careful observation makes it possible, at times, to define the contour of certain arbitral figures. Wissam Halabi-Halawi highlights the role of Emir al-Sayyid as an arbitrator in the Gharb in the 9th/15th century, not only for the followers of Druze Unitarianism, but also for other communities.

8The actors of extrajudicial mediation are better known, indeed, where conflicts are not punishable under the law. Intercessors in the court environment are identified because they were famous political figures. They were selected, it seems, based on two complementary and sometimes contradictory reasons. In the Abbasid Baghdad of the first half of the 4th/10th century, as Maaike van Berkel suggests, "mediators" (mutawassi) and intercessors close to the sovereign, but politically marginal, were often asked to assist, such as women or eunuchs who had no claim to power and did not represent a direct threat. They were less involved than others in the mass of factional solidarities, therefore their neutrality could hardly be doubted, and the effect of their action was increased. In the Mamluk era, other "marginalized" people were solicited during conflicts between Emirs: qadis, notably, were called upon not so much for their judicial powers, but, as Clément Onimus suggests, because their position outside the Emirs’ environment guaranteed their neutrality.

9The social capital of mediators and, above all, of intercessors, was a second selection criterion. In Umayyad al-Andalus, the figures studied by Omayra Herrero were selected for their jāh, that "dignity" which characterized the high-ranking people close to power. Intercessors were not chosen for their marginality but on the contrary because they belonged to groups of solidarity which allowed them to further lobby the man of power whose leniency was hoped for. Intercession thus participated in a form of blackmail, as the sovereign risked losing the support of his most important political representatives if he did not give in. It is interesting to note how this concept of jāh imposed itself in the long term; indeed, it still defines (this time with in its acception as "moral authority") the quality of certain eighteenth century figures in the Touat, studied by Ismail Warscheid.

10The examples provided by Vanessa Van Renterghem finally make it possible to highlight the crucial role played by the power in the reconciliation of religious elites whose conflicts threatened public order. In Seljuk Baghdad, the process of conciliation was not left to the sole initiative of the parties to the conflict but was strongly encouraged or even imposed by an Abbasid Caliph anxious to assert himself as the guardian of the legal and theological order.

11The ad hoc selection of these mediators and intercessors offered great latitude in terms of organization of conciliation. Clement Onimus noted the absence of any established procedure in the circles of Mamluk emirs. The process was none the less ritualized, in order to preserve the honor of each party. The purpose of conciliation was to find a solution where no one would lose face, which would have revived the dynamics of the fitna. In other cases, the interconnection between state institutions and conciliation processes made it possible, even in situations not governed by law, to offer a codified framework for transactions. Many of the cases analyzed by Vanessa Van Renterghem revealed that in Seljuk Baghdad, conciliation was orchestrated by the power around the central person of the Caliph in a structure that resembled the institution of the maālim.

12In cases of disputes regulated by law, the participants in mediation in the form of sub-judicial or extra-judicial mediation – prior to, or in parallel with any lawsuit – were often left in the shadows. In a pioneering article, Işık Tamdoğan argued that during Ottoman times, mediators were often notables instrumentalized as witnesses, allowing them subsequently to testify in court about the ṣulḥ reached (Tamdoğan, 2008: 78). Ismail Warscheid confirms this theory about the Touat, in which the Ksouri notables were all the more likely to intervene as mediators as they assumed the role of witness-notaries (shāhid) in their communities. The acts studied by Brigitte Marino dating back to Ottoman Damascus, although very allusive, also help estimate the action of scholars considered as trustworthy. But several articles highlight the importance of conciliation within the court, when the qadis refused to decide to supervise the conclusion of an amicable agreement.

Connections between modes of conflict resolution

13The second important question is the place of alternative institutions in the general system of conflict resolution and their connection with state justice. Arbitration and conciliation are interconnected legal categories, and they are mentioned in most fiqh texts, which, however, consider the institution of the qadi as the ideal embodiment of Islamic justice. Arbitration was soon assimilated to a form of lower court, whose decisions could be appealed to an official qadi (Hentati, 2007: 182-3, Tillier, 2009: 314). There are not enough sources to understand the implementation of this notion, because the narrative texts evoke arbitration only exceptionally. Nevertheless, the legal practice most ingrained in everyday life – that of legal written formulas (shurū) – supports the theory of a confluence between arbitration and official judicature. The compromissum presented by a 4th/10th century Egyptian lawyer, for whom I offer a translation, constitutes a new milestone for understanding the uses of this institution. Several contributions also revealed how the theory of arbitration could evolve depending on the historical context. With respect to the political fragmentation of al-Andalus during the Taifas period, Delfina Serrano described the insistence of the jurist al-Bājī on the inferiority of arbitrators as a defense of the judicature of a single qadi. Conversely, at the beginning of the 6th/12th century, jurist Ibn Rushd al-Jadd assimilated arbitrators to qadi delegates, which placed the arbitration process under the authority of institutional justice. The concept of takīm also allowed him to devise a way out in cases of judicial impasse because in his view the arbitrator was not bound to comply with the rigid system of legal evidence. On the other hand, arbitration by al-Sayyid, as highlighted by Wissam Halabi-Halawi, was a way for the Druze of the Gharb to develop a form of community autonomy and more generally to offer an alternative to the justice of Muslim authorities.

14The connection between conciliation and the qadis’ judicature is both more obvious and more complex. The qadi institution appeared in the Near East only in Late Antiquity, where justice did not always dare to say its name. Judgments, as enforceable decisions, were a source of fear. Jewish judges in Palestine preferred to avoid rendering decisions for fear that the wrong verdict would irreparably compromise their salvation (Sinai, 2009-2010: 363-4; Goitein, 1971: 334-5). Like some Christians in the Orient, they favored amicable settlements: litigants had to give the impression that they accepted the sentence of their own free will (Allam, 1992: 5). What’s more, transactions in this form preserved the honor of the parties in the eyes of society, as no one was officially condemned. In Islam, mediation was part of the attributions of the qadi, who was not required to render judgment, but could induce litigants to agree on a compromise (Othman, 2007: 65; Tillier, 2014: 434-7). The ambiguity of his role is still debated. “Does the qadi actually decide?” was Jacques Berque’s question about the qadis of Kairouan. Underlining the scarcity of judgments mentioned for the modern period, he wondered whether the transaction was not the main objective of judicature (Berque, 1973: 104). On the other hand, Nejmeddine Hentati noted that the Mālikite law insisted on the enforceability of the qadis’ decisions and tended to minimize their roles as mediators (Hentati, 2007: 201).

15The connection between conciliation and the adjudication, and the place of the qadi in the process, was actually contingent on the context, as highlighted by the articles in this collection. The document published by Naim Vanthieghem and myself suggests that in the Fatimid period the Muslim judge did assume the role of mediator, particularly in the absence of evidence: firm conviction not being part of the Islamic legal arsenal, there was no other choice when a trial reached an impasse. The cases studied by Brigitte Marino reveal the scope of a similar phenomenon in eighteenth century Damascus: many plaintiffs unable to produce evidence left the courtroom to negotiate with the adverse parties through private mediators, and later returned to have their agreement approved by the judge.

16Ismail Warscheid also suggested that the ṣulḥ option was preferred when public authorities could not guarantee the enforcement of sentences. In the Druze community, as studied by Wissam Halabi-Halawi, conciliation could take place at different stages of litigation: in matrimonial matters, the sāyis could suspend the enforcement of his judgment to give the parties another chance to find an amicable settlement. This case is not unique: in the first conflict studied by Vanessa Van Renterghem, the action brought before the court of the maālim at first resulted in the caliph rendering a judgment, before he offered the opposing parties the opportunity to come to an amicable agreement. Brigitte Marino’s analysis of Ottoman Damascus also shows that private conciliation could take place downstream of judicial decisions. Likewise, successive renderings of contradictory judgments could prompt opposing parties to seek amicable agreements. In the Touat in the eighteenth century, a case exposed by Ismail Warscheid suggests that in such cases the judicial authorities themselves sometimes agreed to annul their verdicts in favor of compromise.

17Mergers between mediation and court orders could not be ruled out, for amicable agreements, whether or not reached in the courtroom, could be sanctioned by the qadi: through a maḥḍar, equivalent to a legally enforceable act of thubūt, as evidenced by our Fatimid document, but also, in the cases relating to the eighteenth century examined by Ismail Warscheid, by a valid judgment (ukm). The compromise implied that one of the opposing parties renounce part of its rights; to make sure that the sacrifice would not be only temporary, or appealed to a court, it had to be made enforceable. A compromise reached with the help of a private mediator was very likely to be brought before a judge: as Ismail Warscheid points out, it could easily be annulled on a technicality. In fact, the question is not so much whether the qadi was deciding or not: when he could not determine a winner and a loser, his decision, even on a compromise, was enforceable.

18Hence the qadi - as well as the judge of the maālim, whether the caliph or his representative, - was responsible for both adjudications and conciliations. Depending on the cases and circumstances, he declared a compromise enforceable or, on the contrary, he annulled it; more rarely, a judge might reverse his decision in favor of a settlement transaction. A wide range of possible combinations of these two modes of conflict resolution made the system flexible and offered considerable room for maneuver to both justice and litigants.

Fig. 1 – The main modes of conflict resolution and their possible outcomes

Agrandir

Litigant strategies

19The mode of resolution was primarily left to the choice of the parties in conflict, who opted either for an official channel (qadi court, maālim ...) or an alternative option (arbitration, conciliation); When an institution with power of adjudication was seized (qadi or arbitrator), the move towards a process of conciliation also required the judge’s approval. Thus the ability of litigants to choose a method relying on judicial strategies: why choose one path rather than another?

20A famous arbitration case between Caliph al-Manūr (r. 136-158 / 754-775) and his wife Umm Mūsā al-imyariyya suggests that this type of ruling was a way to circumvent the law applied by official courts: by calling upon an Egyptian jurist, Umm Mūsā received a judgment in line with her expectations, which would not have been the case if she had complained to a qadi from Baghdad (Tillier, 2011: 222). Until the Mamelukes formally introduced judicial pluralism at the institutional level (see Nielsen, 1984, Rapoport, 2003), justice was rendered in every city according to the doctrine of the qadi in office. Forum shopping, a strategy of choosing the institution most likely to render a judgment in accordance with the litigant’s expectations was only possible where arbitration was included in the range of possible judicial solutions. Following Delfina Serrano's reasoning, such legal flexibility was perhaps reinforced by the arbitrators’ lesser adhesion to the strict principles of the fiqh, which enabled them to take into better consideration other values ​​such as common sense and general interest. One could object, however that the arbitrator's decision could always be appealed to a qadi who could annul it if it were contrary to Islamic law.

21Arbitration was of particular importance in the eyes of communities estranged from the dogma promoted by the government, such as the Shiites under Sunni rule, or the Druze. According to Wissam Halabi-Halawi, al-Sayyid was called upon by a number of litigants who feared that state justice would not be able to offer satisfactory solutions. At the other end of the spectrum, another strategy could also be adopted. In Mamluk Egypt, as Clement Onimus noted, resorting to the arbitration of the Sultan was a way to involve the sovereign in quarrels between emirs and increase the balance of power by criminalizing the attitude of one of the opponents. The game was to solicit the sultan and force him to take sides.

22Conciliation also allowed opposite strategies. As Ismail Warscheid's article perfectly clarifies, the ṣulḥ was part of a scheme to soften judicial decisions. The issuing of a judgment could prove counterproductive, because by designating a winner and a loser, it could exacerbate tensions between the groups that supported each opponent. Therefore the resolution of the conflict could, paradoxically, lead to fitna, to chaos. In the Touat in the eighteenth century, not only litigants, but also jurists and qadis, tended to favor reconciliation, even in a judicial context. Several contributions (Marino, Tillier) show that such compromise was suitable to both an ideal of horizontal harmony between human beings and to a religious imperative: to renounce some of one’s rights, or stand in for others in order to reach an amicable agreement, was part of a charitable quest for the common good for the love of God.

23These social and ethical aspects of compromise should not, however, conceal its dark side. Muslim jurists, from the 2nd/8th century, denounced strategies aimed at using ṣulḥ as instruments for the circumvention of the law, as Delfina Serrano's and my papers reveal. The fear of the oath could indeed be exploited to force an innocent into an agreement which penalized him (Tillier and Vanthieghem). On the other hand, intercession was rarely altruistic: it was a favor, as Clément Onimus explains, which called for a counter-gift in return. Under the Mamelukes, when a third party accepted to intercede on one’s behalf, it was assumed the party receiving the favor would become a client to the intercessor.

24The results of these alternative modes of conflict resolution remain to be assessed. Intercessions involving people in power were arbitrary: they depended in large part on the position of the intercessors and/or the power of the groups who stood behind them. Maaike van Berkel and Omayra Herrero reported several failures in the 4th/10th century, both in Baghdad and al-Andalus. Although the ancient arbitration tradition was firmer, the Muslims in the first centuries feared arbitrary excesses, and they only managed to control it and make the outcome predictable by applying the rules of the fiqh. The ṣulḥ, by definition, required the agreement of the parties and appeared as the best means of restoring harmony. It should be emphasized, as Clement Onimus noted, that peace is often only temporary and that an amicable agreement, whether sanctioned by public authorities or not, may represent only one step in the conflict. Brigitte Marino confirms this by showing how in Ottoman Damascus, the ṣulḥ itself could be denounced in court. Moreover, as Dominique Barthélemy wrote about the medieval West, “compromises do not mean equity, they more often consecrate power relations” (Barthélemy, 2001: 19), a theory confirmed by Vanessa Van Renterghem’s contribution about the Seljuk period. Whether it was the outcome of a legal dispute or a political conflict, the ṣulḥ usually concealed a winner and a loser. But at least "no one lost face or their stakes" (Barthélemy, 2001: 13). Conciliation was above all a formal framework, designed to safeguard the honor of the parties and, by offering the appearance of harmony, to preserve the social bond.

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Bibliographie

IBN AL-NADĪM, Kitāb al-Fihrist, éd. Gustav Flügel, Leipzig, Verlag von F.C.W. Vogel, 1871, 2 volumes.

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Notes

1 By "State" we mean a set of institutions constituting sovereign political authority over a given territory. This definition makes it possible to speak of an Islamic state from the second half of the seventh century. Cf. Crone, 2004: 4; Donner, 1986: 283-96.

2 For a comparable distinction in the medieval West, see Débax, 2001: 144.

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Mathieu Tillier, « Introduction », Revue des mondes musulmans et de la Méditerranée [En ligne], 140 | décembre 2016, mis en ligne le 01 décembre 2017, consulté le 25 juin 2018. URL : http://journals.openedition.org/remmm/10034

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Mathieu Tillier

Université Paris-Sorbonne/Umr 8167 Orient et Méditerranée

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