Seeking judgment in disputes from tribal traditions
Q: We are tribes inhabiting
and its suburbs. We have neighboring tribes.
We are judged by traditions and tribal laws in disputes and disagreements.
Some of the members of the tribe and I fear that we are thereby judging by other than that revealed by Allah. We want to renounce them and to break away with the tribe if they are to insist upon what they do. However, we reconsidered the matter and found that such traditions and laws imply apparently interests, settling of disputes, protection from harm, prevention of bloodshed and guarding of rights. And Allah knows best. We fear to renounce and change them without knowledge and to be thereby acting against the interests of the tribe. Therefore, we decided to point out these traditions and laws to Your Eminence, so that if they violate the rulings of the sanctified Shari`ah (Islamic law), we will In sha’a-Allah (if Allah wills) give them up and warn people against them. If they are useful and do not contradict the Shari`ah, we hope you could point out this to us and refer to what contradicts the Shari`ah so that we can change them, given that the tribe do not refer to the Shari`ah Courts of the government not out of objection (Part No. 1; Page No. 392) to the Shari`ah ruling, but on account of the following reasons:1. The Bedouins find difficulty in filing cases with the courts and government authorities due to the bureaucratic measures one has to go through that may take months or years.2. Fearing harsh Ta`zir (discretionary punishment) sentences such as long prison sentences.3. Some disputing parties may be skillful in procrastination, trickery and making use of legal loopholes so that the case may be adjourned for long terms or years; on the other hand, the Bedouins decide and settle their cases in a short period.An outline of the tribal traditions and laws: When a dispute or a problem arises between two parties, the wronged party or his guardian demands from the wrongdoer or his guardian the Khatimah (indemnity) so the wrongdoer or his guardian pay a sum of money or a valuable thing to be maintained with the wronged party until the case is settled and each gets their right. The wronged party or their guardian makes a commitment not to take an action of revenge or complain to the government, until the case is settled. This commitment may be intended for warding off Fitnah (sedition) as in case a fight or quarrel breaks out between the tribe members, in which case a peacemaker takes the commitment from each party. This is considered a truce (Part No. 1; Page No. 393) to suspend fight. Accordingly, each party that makes this commitment is responsible for preventing their tribe, even by force, from taking an aggressive action against the other party. Any attack that takes place after making the commitment brings shame on the committed person. In this way, the Fitnah comes to an end until the seniors of each tribe gather to debate and settle the issue.Settlement of dispute: The wronged party bears the costs incurred for deciding the issue; then the wrongdoer is to pay the costs if he is proved guilty. Two judges or more are to be elected to decide the issue; they are not informed of the Shari`ah or scholars; but they are known for their discretion, wisdom, honesty and wit. You should bear in mind that no scholars or seekers of knowledge of the members of the tribe can engage or take part in solving such questions. Then the claimant and the defendant rub their beards as a sign of being committed to implement the sentence and not to object to it, except in one case, i.e., when one is sure that the ruling is not fair, in which case, he is to oppose the ruling and pay a sum of money for the judge as a compensation. Then the case is to be brought before other judges who may not be of the same tribe. They review the ruling, if they agree upon it, he is to implement it and is to get another ruling for appealing against the sentence. If the ruling of the judges is really unfair, another one is to be issued and the judges get nothing. The claimant presents his case and the defendant responds, then the judges consider whether the case does not necessitate (Part No. 1; Page No. 394) anything, so they throw out the case. If it necessitates a ruling, they see whether there is a precedent case and then they make the same ruling of the precedent. If there is no precedent, they make a ruling according to their discretion. (They agree that if a similar case takes place, they will make the same ruling). This is called Asiyah. It should be noted that there are rulings that are agreed upon and have this Asiyah, and when they are found to be contradictory with the Shari`ah, the judges give them up.Some of the rulings:1. If it is an assault and battery charge, the wronged party is to get Arsh (indemnity paid for inflicting certain wounds).2. The burden of proof is upon the claimant and the taking of an oath is upon the one who denies (the allegation).3. If it is a charge of curse or insult, the judges rule that a sum of money is to be given to the wronged party or a sum of money and Malfa (A sheep served at the home of the wronged party in his honor). It never comes to one's mind that the sheep is slaughtered as a sacrifice for other than Allah. It may occur that the wrongdoer produces this Malfa for the one he wronged out of respect, without a trial, but of his own free will, in order to appease the wronged one.4. The sentence is to be doubled, if the wrongdoer is a neighbor, kin (Part No. 1; Page No. 395) or a companion by one's side.We hope Your Eminence could enlighten us on this matter by a written Fatwa, so that we can point it out to the seniors and shaykhs of our tribe. May Allah make it beneficial! May Allah reward you with the best!
You should seek the judgment of Allah (Exalted be He) with regard to everything, on account of his Saying:
(And) if you differ in anything amongst yourselves, refer it to Allâh and His Messenger (صلى الله عليه وسلم), if you believe in Allâh and in the Last Day. That is better and more suitable for final determination,
and His saying (Glorified be He),
But no, by your Lord, they can have no Faith, until they make you (O Muhammad صلى الله عليه وسلم) judge in all disputes between them, and find in themselves no resistance against your decisions, and accept (them) with full submission,
Do they then seek the judgement of (the days of) Ignorance? And who is better in judgement than Allâh for a people who have firm Faith.
It is not permissible to judge according to the tribal traditions and the like; for this entails seeking judgment with other than that revealed by Allah. You should bring your cases before the judges of the Shari`ah Courts.May Allah grant us success. May peace and blessings be upon our Prophet Muhammad, his family, and Companions.