Customary Law in the Arab World

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Author, Date of the post, WMO Conflict Insight, Title of the post,  ISSN: 2628-6998, https://worldmediation.org/conflict-insight 

Traditional conflict resolution methods are considered one of the oldest methods used throughout history to resolve conflicts between individuals, and in the Arab world, many of these methods are still used today in a vital way to resolve many issues and disputes. In this article, we will focus on presenting customary/tribal law in the Arab world, which is considered one of the most prominent and important means of resolving conflicts that exist today.

Keywords

Restorative Justice, Conflict Resolution, Local Conflict Resolution Methods, Tribe, Costmary Law. 

Introduction 

It is noteworthy that understanding how traditional conflict resolution methods work shall be done within its context, by understanding the spirit beyond the local norms and laws that organize the people life, the application of these methods will be more advantageous and accurate, which in result will assist in resolving conflict and build peace. In many Arab countries, traditional conflict resolution mechanisms are still connected with families, tribes, and traditions.

The Definition of Customary Law 

Customary or Tribal Law can be defined as a set of oral customs and traditions -that some tribes tried to write down- derived from precedents or religion and usually applied by tribe’s leaders Sheikh, it can be applied to a variety of disputes; in the criminal field such as theft and murder, and in the civil field such as financial and properties disputes (Bobesine, 2019; Al-Ramahi, 2008; Safa, 2007). 

In the Arab World, the idea of resolving conflicts between individuals lays in the hurt of the patriarchal system that starts with the smallest unit which is the family. The young men and women will turn towered their parents, grandparents, and an uncle to resolve disputes they have with other people. Whilst less serious disputes can be resolve at the family level such as conflicts between children and small financial cases, some other disputes need to be looked at the larger level, in cases like murder the crime will move away from the family level -according to the tribes structure-to the house, the clan, or the tribe levels depending on the seriousness of the crime (Bobesine, 2019; Al-Ramahi, 2008; Asfura-Heim, 2014)

Customary or Tribal Law contains different principles that aimed to conserve the interest of not only the individuals but also the wider community. 

Foremost, the tribes are built upon individuals coming together in one structure in order to defend themselves and their interests, subsequently, collective interest can be described as the first principle that controls the flow of the tribal law, it aims to secure the interest of all the tribe members as one unite, ergo, in some cases, the individuals’ interest can be put aside if it countered with the group interest or if it can pose a threat to the tribe. At the same time, collective interest means that the whole tribe will stand beside its members in case they needed help and any threat that falls upon any person will consider a threat towered the whole tribe (Bobesine, 2019; Asfura-Heim, 2014; Al-Dawsari, 2012).

In addition, while tribal law aimed towered resolve conflicts and strengthen the collective relations and interests, the victims also have their fair share inside the process, which can be seen through their participation and their right to compensation. Inside the tribal law, victims have a big role in the process that started from the moment the crime occurred untie it totally resolved, through participation in the negotiation stage and presenting their opinions and demands, and although the tribal law does regulate the amount and methods of the compensation that each crime deserves, the victims have a great role in determining and presenting their demands for the sake of guarantee their right in addressing and healing their pain by the offender and the community(Bobesine, 2019; Asfura-Heim, 2014).

Notwithstanding the fact that the compensation in tribal law is usually an amount of money, in many cases and for the process to achieve its goal in keeping the stability and the harmony among the tribe members, the offenders need to admit their responsibility of the crime and show their regret by apologizing to their victims and communities. As a result, this may help in pushing the victim and the community to forgive the offender and lessen the tension between the conflict parties, which may lead to prevent any escalation in violence and stop the violence and crime circle between the offender and the victims and their families, and turn the focus toward healing the victims’ pain and restoring the relationships between all the parties, in order to achieve stability among the community, protecting the community cohesion, safety, and interest (Al-Dawsari, 2012; Asfura-Heim, 2014; Steele, 2008).

The Problem facing Customary Law  

However, despite the importance that tribal law occupies in many Arab countries, there are many issues and problems that may face its application or acceptance as a means of resolving disputes under the official legal system of the state.

The most prominent problem facing it is its relationship with the official system, as it is possible to view customary law as a complementary law that can help the formal system in resolving cases and achieving justice, especially in light of the weakness of the official system in many Arab Spring countries, or will it be seen as an alternative and an obstacle to the formal justice system, hence it will blook the access to justice, which will result in excluding it from the conflict resolution mechanisms (Elmangoush, 2015). There is no single framework that can govern the relationship of formal law to customary law, and this relationship differs from one legal system to another among the Arab countries, yet many practices on the ground paint a complimentary picture of the two systems. For example, in both Iraq in Yemen, resolving the conflict between the parties, which is called the personal right through law and tribal customs, leads the official courts to rule only on the public right, and in many cases, the whole case is closed, and the tribal solution will be sufficient (Bobesine, 2019; Al-Dawsari, 2012). 

In addition to the above, the weak participation of women and youth in the process that is based on the role of tribal sheikhs in mediation and reconciliation processes is one of the most prominent problems facing tribal law, between the difference of views between the successive generations in terms of looking at norms and traditions In conflict resolution, and the growing role of women in conflict resolution processes, it is necessary to reconsider the mechanism by which tribal law can be used to resolve conflicts (Al-Dawsari, 2012; Elmangoush, 2015; Bobesine, 2019).

Without ignoring the problems that may weaken the use of tribal law as one of the practices of the restorative justice system, yet the role these practices may play, as was previously mentioned, an important role in reconciliation and justice processes through their focus on restoring the relations amongst community members, addressing the pain of victims, and rehabilitation of offenders. 

Within its limits, tribal law has different dispute resolution methods, such as Al-Sulh and Al-Musalha (reconciliation), Al-Wasata (mediation), and Al-Tahkem (arbitration). Each one can be applied independently or in combination, depending on the case and the need, overall, they all have the same objectives. Foremost among priorities, tribes through the tribal law and its dispute resolution methods, aim to achieve social stability and peace.

Conclusion 

The Tribal or Customary Law has a long history and traditions within the Arab countries. And many of these methods were used broadly among people in the light of tribes being one of the strongest units in the Arab world, and the ongoing war and conflicts among the Arab World which result in weakening the formal justice system. 

In my opinion, any of the methods used within the customary law hold the potential power and ability to help resolve many of the ongoing conflicts, build peace, and help in the reconciliation process among people, however, the main point remains in the will of the Arab states and governments in using these methods within a formal system that help in reducing the escalating of violence, resolving conflicts, and the reconciliation process.

References

Al-Ramahi, A. (2008). Sulh: A Crucial Part of Islamic Arbitration. London: London School of Economics and Political Science-Law Department.

Al-Dawsari, N. (2012). Tribal Governance and Stability in Yemen. Carnegie Endowment for International Peace.

Asfura-Heim, P. (2014). No Security Without Us”: Tribes and Tribalism in Al Anbar Province, Iraq. CNA Analysis & Solution .

Bobesine, H. (2019). Tribal Justice in a Fragile Iraq. The Century Foundation.

Safa, O. (2007). Between Sulh in and other kind of conflict resolution methods: The Work of Civil Society Organisations in Lebanon and Morocco. Berghof Research Center for Constructive Conflict Management.

Steele, D. (2008). Reconciliation Strategies in Iraq. US Institute of Peace.

Elmangoush, N. (2015). Customary Practice and Restorative Justice in Libya A Hybrid Approach. US Institute of Peace.

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