Reconciliation and Arbitration

1- Background

Reconciliation and Arbitration Instead of Force :

In primitive communities, the use of force was the only means for settling disputes, either those which erupted internally or those which existed between them and other communities. But by virtue of the chieftains of these communities, the use of force in settlement of domestic disputes was abandoned, and such differences were resolved only by reconciliation. The use of force was abandoned after they had seen the destruction and annihilation the wars entailed. Reconciliation was made either by excluding the offender from his community, by handing him over to the victim or his community, by retaliation from the offender alone, or by payment of damages to the victim. The two disputing parties would come to terms either with the help of a third party, or without it. But with the advancement and development of these communities, their disputes were referred to arbitration by one or more than one arbitrators who were agreed to by the two disputing parties. But this development in the primitive communities could not completely eradicate from minds the idea of restoring to force, because, at that time, there was no high authority which would force the disputants to accept reconciliation or arbitration. Any community, however, was free to reject any decision taken through arbitration and resort to force in settling its disputes. The use of force had not been completely abandoned except after the state had been formed replacing the tribe in the political field. Only then would the state impose its authority on disputants after formulating a legal system which defined the individuals' rights and another judicial system under which they would settle their differences.

Types of Reconciliation and its Impact on Ancient Laws:

A. Expulsion of Offender:

A community would expel any offender from it in a bid to ward off evil and safeguard and protect other members of the community. Dispute, in such a case, was contained, and only retribution from the culprit was needed. This system was practised by the ancient Arabs; they called it the system of expulsion. In "Asas Al Balaghah", Al-Zamakhshari said that it was the practice in such cases that the chieftain would bring the offender before the people and declare him excluded and should be rejected by all of them. The Greeks also knew this system; they called the expelled "the person denied of God's protection." Also the Saxons had followed the same system and from them it passed to the British. According to the English Law, such a man is called an "outlaw"; he could be killed at any time and his property could also be spoiled.

B. Handing Offender Over:

This is another type of reconciliation. The tribe would hand over the culprit to the victim or to his community for retaliation. Articles used in doing the harm in question would also be delivered together with the offender. The Roman Law included a number of applications of this system. The head of the family, for example, was responsible for any damage made by any member of his family or by a tamed animal he was keeping. He had to hand over the causer of damage to the victim or his people or pay a specific fine as ransom. Even the Greek Law had adopted the same system. It relieved the family of responsibility if it would deliver the offender, whether he was a person, an animal or an inorganic substance, to the victim or his community. Also the Islamic Law had applied the safe principle. It was unanimously agreed to by the Muslim jurists that if a slave had committed an offence, his master was compelled either to hand him over to the victim or to pay a ransom.

The same system has also been accepted by modern laws. According to Clause of the Egyptian Maritime Trade Law, a ship would be given by its owners to any creditors whose debts remained unpaid for any reason other than negligence on the part of the captain.

The ancient English Law had enjoined that any criminal had to cede the object with which he killed some one else.

C. Retaliation

Previously, revenge was not taken only from the offender, but from his community too, unless the community expelled the offender or handed him over the victim's people. But such communities had developed with the development of the authority of their chiefs who persuaded their peoples not to resort to fighting and to be satisfied only with punishing the offender alone. The chief of the victim's community also had to convince his people to accept the punishment inflicted on the offender and not to use force. With the passage of time, the communities became familiar with the system of punishment which superseded individual fightings.

According to the Roman Law, if someone offended someone else ,the victim was to choose either to take a certain amount of money or to do to the offender the same injury he had inflicted on him.

D. Blood-Money

With the advancement of primitive communities, the system of retribution was replaced by another system which was based on giving satisfaction to the victim or his community. The offender would either express his regret for what he had done and ask for pardon and mercy, or pay a sum of money, or a number of the slaves, or some heads of his cattle, in compensation for the damage caused to the victim, on one hand, and in an attempt to persuade the victim's community to for sake revenge and incline to peace on the other. The offender's community would help the offender by contributing to the money which was to be paid as compensation. In this case, the compensation was distributed among the members of the victim's community, but, notwithstanding, the latter's community was not compelled to accept the blood-money; instead, it would ask for revenge.

The blood-money was fixed in agreement between the two disputing parties and according to the magnitude of damage done. This kind of blood-money was called "Optional Blood-Money". When the state expanded, together with its various capabilities) it made the blood- money obligatory and outlawed personal vengeance and forced the victim to accept the blood-money. The Babylonian and Assyrian Laws made it obligatory on makers of particular offences to pay to the victim compensation which differed in value according to the social status of the victim. If someone robbed someone else of something, the thief had to pay ten-fold the value of what he had stolen if the owner of the thing was a member of the Moshkino class. If an article was stolen from any sacred temple, the thief had to pay thirty times the value of what he had stolen.

Islamic Law :

The Holy Quran has presretain more than one verse. By retaliation, the victim and his community would be content and blood was not shed. One of these verses reads as follows: "O, you who believe retaliation is prescribed for you in the matter of the slain; the free for the free, and the slave for the slave, and the female for the female" [Surat Al-Baqarah : 177.] Another verse states: "And there is life for you in retaliation. O, men of under standing, that you may guard yourselves." [Surat Al-Baqarah : 179.] In another place, the Quran says: "The sacred month for the sacred month, and retaliation is allowed in sacred things. Whoever then acts aggressively against you, inflict injury on him according to the injury he has inflicted on you and keep your duty to Allah, and know that Allah is with those who keep their duty. [Surat Al-Baqarah : 194]

Retaliation was known to the ancient Arabs and when Islam was introduced, it approved it, but with some amendments. Islam has fixed the amount to be paid as blood money in cases of homicide. The Quran says," And he who kills a believer by mistake should free a believing slave, and blood-money should be paid to his people." [Surat Al-Nisa' 92.]

2 - Reconciliation

In Positive Laws :

The acceptance by a victim of an offence does not relieve the offender from punishment. This is the essence of the positive law. In the Egyptian Criminal Law, the system of reconciliation had not been vastly applied in the ancient legislation. According to the Law, a penalty for an adulteress, who was pardoned by her husband and continued to live with him, could be dropped. In conspiracies, an accomplice in planning of a crime would be acquitted if he would inform the authorities of the remaining accomplices and help in getting them arrested. But the new Law has added some other offences to those which could be settled by reconciliation, among them were the crime of libel, desertion from the family and shefts among lineal consanguinity or between husband and wife.

A study of the positive legislator's tendency will come out with the following conclusions

1 - The legislator wanted to expand the sphere of offences which might be settled by reconciliation with the in tention of giving them the characteristic of private offences.

2 - Offences which would be settled by reconciliation had a special character. These include the offences which gravely threatened the State's security. In such cases, the State itself might have interest in reconciliation as this might lead to the arrest of most of the culprits. The State would acquit whoever helped in the arrest of offenders. Some other offences might threaten people's honour; and to protect one's honour is better than to defame him. As regards contraventions, these were so insignificant that the judicature showed no great concern about them and reconciliation here would save the judge's time as well as the State's money. Though reconciliation in these three cases seemed to be in the interest of individuals, and not of the whole community, reconciliation was in the public interest which sought keeping order and convential rules of behaviour.

Reconciliation in Islamic Law:

The Islamic Law preceded all other laws in formulating a rigorous system to deal with one of the most dangerous crimes committed against the community. These were the crimes of wilful homicide which entailed death sentences. Included in these crimes were those of beating to death, grievous hurt short of murder, or causing permanent infirmity. In such cases, reconciliation was optional, not obligatory. As a condition, the victim, if remained alive, had to give approval to the reconciliation. If he was dead, acceptance must be secured from his next of kin. The Holy Quran states "O, you who believe : retaliation is prescribed for you in the matter of the slain; the free for the free, and the slave for the slave, and the female for the female. But if remission is made to one by his aggrieved brother, persecution for blood-wit should be according to usage, and payment to him in a good manner. This is an alleviation from your Lord and a mercy. Whoever exceeds the limits after this will have a painful chastisement. And there is life for you in retaliation, O, men of understanding that you may guard yourselves." [Surat Al-Baqarah:178-179]

Crimes of involuntary manslaughter were also compounded for by agreement. The Quran explains : "And a believer would not kill a believer except by mistake; and he who kills a believer by mistake should free a believing slave, and blood-money should be paid to his people unless they remit it as alms. But if he be from a tribe hostile to you and he is a believer, the freeing of a believing slave suffices. And if he be from a tribe between whom and there is a covenant, the blood-money should be paid to his people along with the freeing of a believing slave. But he who has not the means should fast for two months successively - a penance from Allah. And Allah is ever-Knowing, Wise. [Surat Al-Nisa': 92.] The Muslim legislator had made the payment of blood money-obligatory and, as a consequence, it was the right of the victim's second of kin to get it. Blood-money was different from criminal mulct. According to the positive law, the latter is paid to the State's treasury.

It is to be noted that whenever the blood-money was agreed to, it had to be paid, either by freeing a believing slave or by payment in kind, in gold or in silver. If the murderer failed to pay the blood-money, it had to be relinquished for infeasibility In such a case, reconciliation was turned over into repentance [when the blood-money was obligatory paid, obliterating criminal punishment, there, of course, was no reconciliation, Therefore, it might have been said that in a murder by mistake, reconciliation was not to observed, but still there was scope for it if the victim's kith and kin would forego their right! This was also in Conformity with God's injunction, "…unless they remit it as alms". If peoples were allowed to remit the blood-money as alms, they would obviously be allowed to forego it,] This was in conformity with God's saying : "But he who has not the means. should fast for two months succeeively a penance from Allah. And Allah is ever-Knowing, wise".

Reconciliation must not be equalled to pardon if the offender declares penance. Pardoning the repentant offender was the right of the ruler. It was the ruler who would either grant him pardon or punish him. But reconciliation was the right of the victim, whether he was a member of the community, or the State itself. Reconciliation was warranted whether the offender expressed repentance or not.

But what is the use of reconciliation in crimes of mudrer ? What is the harm in effecting reconciliation and what are the methods which would be followed to parry any harm it may do, if there would be any such harm ?

Reconciliation has many advantages:

1-By reconciliation, a human-being's life is spared. Such a person might be highly-placed in his community. The offender might possess rare qualities which no one else would possess. These qualities might be vocational, political or military, or the like.

2- To pardon the offender by the victim is better than to put the former in jail. Imprisonment is calumnious and demoralising and it has had effects on prisoners. It might be alleged that any murderer deserves to receive capital punishment, and that to execute a murderer would not cost the State anything.

In reply, it could be stated that according to the positive law, death sentences could be commuted into hard labour sentences, which in turn are a type of imprisonment. In most cases of homicide, as prescribed by positive laws, murderers might be given only hard labour sentences. This kind of punishment is not economical as it would prevent one from doing any productive work. This penalty, moreovev, will never reform a criminal it may impel him to do more evil.

3- If the culprit is pardoned by the victim's next of kin or by the victim himself if he was still alive, the culprit would certainly feel and acknowledge the favour and benefaction the victim had had extended to him and that he has been granted life whereas he deserved to be dead. Moreover, in pardoning a criminal after having been doomed to punishment, a human touch and a spirit of tolerance would prevail. As a result, hatred in people's hearts would diminish and disappear and feud crimes, which increase in number in the Arab countries which do not usually resort to reconciliation' go on the wane. It is noticed that as a result of only one murder, a number of other lives might be lost over decades even inside one family. Had the victim or his next of kin willingly pardoned the culprit, hatred and enmity would have completely been eliminated from people's souls.

As for the disadvantages of this system, it might be alleged that the blood-money had not been paid to the victim or his next of kin, and the victim, therefore, would certainly lose his right in retaliation. In reply, we say that in crimes of intentional murder, the like, the blood-money should have been paid otherwise retaliation would become obligatory.

In cases of murder by mistake, and in similar cases, the blood-money was obligatory and when it had not paid from the offender's own purse, it had to be collectively paid, by his family or his tribe. If the money had not been paid even by the family or the tribe, it had to be taken from the State's treasury (Baitul Mal). This was the viewpoint of some jurisprudents which we fully support.

It might also be alleged that a wealthy criminal would not fear penalty since he had only to pay the blood money.This would have encouraged him to commit his crime. In our view, this sort of offender would behave otherwise. As regards cases of intentional murder, and the like, the ruler had the right to kill the murderer in retaliation even if the victim or his next of kin had pardoned the culprit. This would happen when the ruler became sure that the culprit harboured perfidy due to his becoming a habitual offender.

Pursuing of Proceedings on victim's Complaint:

According to the Egyptian Law victim has been left free to take legal action in some particular cases. These cases cannot be investigated except after a complaint submitted by him. These crimes are those of :

  1. 1 - Slander maliciously uttered to the injury of a public government servant, a person representing in any capacity the public, or a person charged with a public responsibility, all of them being done during their discharge of their duties;
  2. 2 - Adultery by the wife;
  3. 3 - Adultery by the husband;
  4. 4 - Showing indecency to a woman even in private;
  5. 5 - Undelivery of a minor to a legal guardian;
  6. 6 - Non-payment of wife's alimony, of expenses for child's nursing, or of a house rent fixed by a court's decision ;
  7. 7 - Defamation:
  8. 8 - Libel; and,
  9. 9- Defamation and libel through publicity, injuring honour or detracting of family dignity.

There are other offences that despite being referred to in the Law of Criminal Procedures yet are included in the Penal Law itself or in some other special laws. They are:

1-Theft from collateral ancestors or husbands or wives, [Annexes to this crime are crimes of swindle and of unfaith fulness in making over trusts entailing damage to husband, wife or kith and kin,] and,

2 - Outbreak by a juvenile of father's or guardian's control.

In these cases, the victim's complaint must be objective and unconditioned and the offender should be accurately named. A complaint by a victim is not entertained if it is submitted three months after he has been informed of the offence or the personality of the offender, unless it is otherwise prescribed.

Recantation of Complaint :

A victim or his representative can recant a complaint any time as long as it was still being investigated by public prosecution or court, whether this was before or after filing the case and even after passing a sentence by a court of first instance. But if a final decision is taken, a complaint cannot be recanted except in two special cases and these were clearly prescribed by the law.

They are the crimes of adultery by a wife who was par doned by her husband who willingly agreed to resume relationship with her, and of theft from husband, wife or kith and kin.

Consequences of Recantation:

1- According to law, a criminal case is completely dismissed by recantation. If the case is still in the phase of preliminary examination or deduction, the public prosecution would treat the case as closed. But if the case was still being investigated by a competent court, the defendant is to be aquitted of the charge by extinction of obligations. Recantation in such a case does not supersede the victim's right to a civil indemnity to be claimed before a civil court. But in cases of adultery, recantation supersedes any such right because such a claim in the court would make the scandal widely known.

2 - Recantation to one of the defendants is not neces sarily applicable to other defendants in a case. The crime of adultery was exempted from this condition because of its particular nature! In adultery cases, adulterer is acquitted of the crime when the adulteress is acquitted and gets involved in the case as long as she is also being involved. The case is the same with the adultress; she is acquitted with the acquittal of the adulterer husband, and is involved in the case as long as he is also being involved.

Blood-Money in Islam and Compensation in Positive Laws The principle of compensation in positive laws is undemocratic. Compensation is not fixed on an equitable basis; it is fixed according to the magnitude of damage done to the heirs of a victim. If the victim is poor, the offender would pay only a paltry compensation, but if he was highly-placed in the community, he would get significant compensation. This differentiation is wrong. It is not acceptable to the Islamic Law. According to Islam, people are equal whether they are alive or dead. When a positive law gives a poor man an insignificant compensation, the law will be doing injustice to the man, because the affliction on the poor man's heirs is certainly more grave than that on the wealthy. After a murder of a poor man, his family may suffer from hunger or be formed `to search for a new way for earning livlihood after the death of its bread-winner. Taking this into consideration , the Islamic Law equalised the blood-money especially in cases when it was paid obligatory. As regards the optional blood-money paid as retaliation, it was fixed in agreement by all parties to the offence.

Another characteristic of the blood-money as prescribed by the Islamic Law was that it was paid either in kind or in cash, in gold or in silver, This system becomes more advantageous as a result of fluctuation of prices. Had the blood-money been paid in cash and according to official rates and the purchasing power of currency diminished, the blood-money would have certainly been valueless. But if the blood-money was paid in kind or in cash, in gold or in silver, its value would not have been affected. Some European countries are following a system similar to that of Islam. There, debts, even if they are fixed, are re-paid according to gold rate. If a man had borrowed, 1.000 pounds in 1900, to be repayable, for example, in 1970, according to the present legal tender of banknotes, he would certainly suffer in-justice, because the 1.000 pounds in 1900 would equal in value about 1.000 pounds in 1970. And vice-versa. And because of this, these laws stipulated that debts are to be repaid according to gold rate.