التحكيم الشرعي في المجتمع الفلسطيني والتحكيم العشائري دراسة مقارنة في محافظة الخليل Sharia Arbitration Vs. Tribal Arbitration

Date
2011-06-08
Authors
محمد نجاتي عبد الحافظ الزعتري
Mohammed Najati Abdel-hafez Al-Zaatari
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Publisher
AL-Quds University
جامعة القدس
Abstract
This study addresses both Sharia and Customary/Tribal Arbitrations in Hebron Governorate at a time when people have completely overlooked Islamic rulings revealed by God the Almighty. The purpose of this study is to shed light on the concept of Arbitration، its resources and the legitimacy of its application and practice based on texts from the Holy Quran, the prophet’s Sunna- May God’s Peace and Prayer be Upon Him-, sayings and actions of the prophet’s companions and rulings of Islamic Jurists may God be pleased with them. The study adopts and follows the descriptive approach which includes analysis, induction and inference out of relevant texts and referral to their sources along with their documentation in accordance with the accredited scientific approach. The study indicates that arbitration is based on reconciliation and settlement of disputes among the people. This contributes to the preservation of the Sharia intentions and purposes to impede bloodshed، maintain honor and solve family feuds and grudges especially the case of arbitration between married couples at times of disagreement and disparity. The study aims to identify the extent of popularity and spread of both Sharia arbitration and tribal arbitration among the citizens of the Palestinian society. It also seeks to identify the motives and reasons why rival parties resort to it. The study, moreover, seeks to determine the relationship of both types of arbitration with some variables at a time when each party blindly favors his own opinion, strongly favors the view of his own to the extent that each party only sees what it adheres to irrespective of what others say. The study highlights the role of Sharia arbitration in bringing conflicts and differences to an end between the different rivals, and in applying justice among the members of the Palestinian society in an easy, smooth and integral manner. Also the study concluded that the concepts of both types of arbitration in terms of language، semantics and source of each along with the aspects of similarity and difference between both. Also the study concluded that the way to end differences and disputes by means of Sharia Arbitration and Tribal Arbitration in crimes of bloodshed and honor as well as family disputes. It tackles the types and sentences of murder، the different penalties on honor crimes in addition to assault on honor whether it is characterized by approval or anger. It also addresses the ruling of the coerced victim in light of both the Islamic Sharia and tribal laws. It also highlights the wrong practices that violate Islamic Sharia and are observed by some tribes and clans especially in cases of murder or honor. Most salient of which are retaliation acts، dismissal of innocent victims، assault on property by arson، plunder and imposition of inappropriate sentences on the offender in the case of rape in clear day light. Arbitration in family disputes is also tackled in light of Islamic Sharia and Tribal Arbitrations. It addresses the meaning of “Recalcitrance” and the gradual standard procedure in tackling the wife’s disobedience; moreover، the meaning of dispute and the legitimacy of arbitration between the marriage opponents and the need to appoint two arbitrators from the folks of both parties are discusses too. It also shows the wide meaning of the word “folks” since it might signify “the family” in its narrowest meanings then the clan followed by the tribe. The two arbitrators should be competent in solving differences between the husband and the wife on one side and be reliable arbitrators in separating between the couple subject to their approval on the other. The questionnaire showed its analyses and outcome the most significant outcome is the preference of Hebron governorate residents to resort to Sharia arbitration rather than to tribal arbitration in solving disputes as an expression of their commitment to commands of God’s Sharia. This is followed by the Conclusion, Results and Recommendations. and the preservation of honor is only achieved when it is made impregnable; every girl has to cherish her own honor since any unruliness and irresponsibility on her part would lead to having a deep impact on her life; let us all observe God’s commands and teachings in our girls and their families. In conclusion, the study strongly recommends that the arbitration deed and the verdict be documented in writing in the presence of witnesses so that it would be verified in accordance with the law.
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Keywords
الدراسات الاسلامية المعاصرة, Contemporary Islamic Studies
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