Judicial Arbitration in Islamic Sharia: Its Rulings and Conditions

Abstract

This research aims to clarify the nature of judicial arbitration in Islamic law, its rulings and conditions, and the extent to which it is considered a legitimate means of resolving disputes, while explaining its evidences from the Qur’an, the Sunnah, and the consensus of the Companions. It also outlines the differences among the Islamic legal schools regarding its scope, the conditions for its binding force, and the rules governing withdrawal from it. Arbitration and judiciary share the goal of resolving disputes; however, arbitration is based on the consent of the disputing parties in choosing the arbitrator, whereas the judiciary represents a binding public authority. Linguistically, arbitration denotes prevention and separation, while in terminology it means appointing a person to judge between disputants; the judiciary, on the other hand, refers to enforcing decisions and settling conflicts. The legitimacy of arbitration is established in the Qur’an, the Sunnah, and the consensus of the Companions, and it was approved by jurists despite differences in details; the four legal schools permitted it but differed on whether the arbitrator’s decision is binding and whether the parties’ consent is required after the ruling. Jurists also permitted arbitration in financial matters and transactions but differed regarding its applicability to penal cases, retribution, marriage issues, and li‘ān, with some prohibiting and others permitting depending on the nature of the rights involved. They likewise differed on whether withdrawal from arbitration is allowed before or after the ruling, depending on the school. In conclusion, arbitration is a recognized legitimate means for resolving disputes by mutual consent, and its rulings take effect according to the conditions set by each school.