THE BASIS OF SULH



Sulh or a Compromise Settlement, is an independent system which is permissible in the Shariah. It has been ordained by the Shariah to settle and terminate mutual disputes. In Sulh, the settlement may be effected in exchange for maal (wealth which is confined to tangible assets to which the Shariah gives monetary value), or in exchange for manaafi’

(usufruct/ benefits).



If the Sulh is maal for maal, then the rules of Bay’ (Sale) will apply And the agreement will be assigned to the category of a sale inspite of it not being a sale. However, in view of the existence of the ingredients for a valid sale, the compromise in this instance (maal for maal) is given the status of a bay’ (sale). If the Compromise is related to maal in exchange for manaafi’ (benefits), then the rules of Ijaarah (Leasing) will become applicable to the agreement.



If the basis of the dispute is a Haqq (Right), it should be a right which is established and which is in the mielkiyyat (ownership) of the claimant of the right. A person cannot claim compensation for a right if he does not own the mahal (substratum) such as Haqq-e-Shuf’ah (the preamptive right of buying the adjacent property). In this case, he has no mielkiyyat (ownership) in the article of sale, viz. the building. On the otherhand, Sulh can be effected in a right if related to a mahal in which he has mielkiyyat, such as Qisaas (taking the life of a murderer) for example. In this case the heirs of the murdered person possess the mielkiyyat (ownership) of executing Qisaas in the life of the murderer. These are subtle technical Aqli Dalaail (rational arguments/proofs) of the Fuqaha which may be difficult to grasp for most people.



The purpose of citing this argument here is to convey that even in valid huqooq (rights) ordained by the Shariah itself, even the institution of Sulh (Compromise Settlement) with its characteristic of wide latitude and scope, does not admit permissibility of monetary compensation for certain rights. To a greater degree will the prohibition apply to imagined rights such as copyright which is a pure legal figment of the kuffaar economic system, the cornerstone of which is the institution of Riba

When even the institution of Sulh with its wide scope refuses to tolerate certain lawful Shar’i rights, then it is utterly ridiculous to seek justification with examples of Sulh for the Bay’ (Sale) of an imaginary right – a kaafir- spawned ‘right’ which never existed in the Shariah and for which there are no Shar’i grounds. Those who have presented the Sulh episode of Hadhrat Hasan (radhiyallahu anhu) with Hadhrat Muaawiyyah (radhiyallahu anhu) have overlooked or have failed to understand that the Haqq of Khilaafate was established for both claimants in their respective understandings. This Right is a real right ordained by the Shariah, hence the Sulh in which maal (wealth/money/tangible assets) was involved is valid.

But this Sulh was not a sale agreement which could be cited as justification for buying and selling copyright even if we have to assume that this kuffaar right is a real right. Even in the Shar’i conception of Sulh, the compromise between Hadhrat Hasan (radhiyallahu anhu) and Hadhrat Muaawiyyah (radhiyallahu anhu) is not presented as a sale agreement to which the rules of Bay’ (Sale) are applicable because the definition of Bay’ in the Shariah is “The exchange of maal for maal”, which is absent in this episode.



In terms of the concept of Sulh a mutual compromise agreement will be placed in the category of a sale, only for the purpose of the invocation of all the rules (masaail) applicable to Bay’. Since the Sulh of the two noble senior Sahaabah was not an exchange of maal for maal, it is beyond the purview of the applicability of the rules of a Sale. If the liberal Molwis who are espousing the cause of copyright and all the other ‘rights’ of Jaahiliyyah introduced by the western economic system, can understand this, their confusion on the issue of rights will be dispelled, Insha’Allah. There is absolutely no resemblance between the Sulh of Hadhrat Hasan (radhiyallahu anhu) and the copyright issue. The former is a pure case of compromise settlement, not of the Bay’ (Sale) category, while the latter has been assigned the status of a fully-fledged bay’ (trade) by its proponents, viz. the liberal Molwis.

Furthermore, as mentioned earlier, elsewhere in this treatise, the circumstances, aims, objectives and conceptions of Khilaafate and copyright are widely divergent and vastly different. It is ludicrous to argue the one on the basis of the other.