The Princeton Encyclopedia of Islamic Political Thought

arbitration

Arbitration, as a privatized system of justice, was virtually the only form of justice known to the pre-Islamic Arabs. Confirmed by the Qur’an, it continued to be recognized as a valid means of dispute resolution after the advent of Islam. The Prophet Muhammad’s position at Medina was modeled at least in part on that of the pre-Islamic arbiter appointed to settle intertribal disputes. For Sunnis, arbitration was available even if a government-appointed judge was available to hear the dispute. For the Twelver Shi‘is, arbitration could take place only if an imam was present. Upon the occurrence of his occultation (ghayba), arbitration was no longer possible.

The best-known incident involving arbitration in Islamic history occurred during the Battle of Siffin (657), when Mu‘awiya sought to escape defeat at the hands of ‘Ali b. Abi Talib by suggesting that the two warring parties submit their differences to binding arbitration for resolution. According to most reports, Mu‘awiya appointed ‘Amr b. al-‘As as his arbitrator, while ‘Ali appointed Abu Musa al-Ash‘ari. The two arbitrators were charged with resolving the dispute between the two parties in accordance with the teachings of the Qur’an. Traditional accounts of the arbitration present a picture of a cunning ‘Amr b. al-‘As, who was able to take advantage of the less sophisticated Ash‘ari to enhance substantially the prestige of Mu‘awiya at the expense of ‘Ali, even if the result of the arbitration was inconclusive. Perhaps because of the inconclusive nature of this early attempt to use arbitration to resolve political disputes within the Muslim community, it appears that later generations of Muslim rulers never again attempted to resolve political disputes using arbitration. According to Qalqashandi, later Muslim dynasts looked at the arbitration between ‘Ali and Mu‘awiya as providing the model for peace treaties between rival Muslim rulers. It was the practice of later Muslim rulers, in connection with the assumption of solemn obligations toward their political rivals, to secure their obligations by oaths of divorce, manumission, and other penalties against the ruler in the event he violated his undertaking. One such example is the succession of Amin and Ma’mun to the caliphate of their father, Harun al-Rashid. The terms of the succession agreement were enforceable by oaths of divorce, manumission, and even excommunication.

While all four surviving schools of Sunni law recognized arbitration as valid, they differed regarding the scope of an arbitrator’s jurisdiction and the legal effect of an arbitrator’s judgment. For the Hanafis, the Shafi‘is, and the Malikis, the authority of an arbitrator in principle derived from the will of the private persons who had appointed him. Accordingly, the arbitrator’s jurisdiction was generally limited to matters amenable to the private resolution of the disputing parties, in other words, disputes involving claims of money. For the same reason, the parties of the dispute could withdraw from the arbitration at any time prior to the arbitrator’s judgment.

The Hanafis, however, did not recognize the finality of an arbitrator’s judgment: if the enforcing court disagreed with the outcome, it could reverse the arbitrator’s verdict. For the Malikis, Shafi‘is, and Hanbalis, in contrast, an arbitrator’s verdict—assuming it was otherwise legal—had the same force as a judgment issued by a state-appointed judge and consequently could not be reversed simply because the judge would have applied a different rule. Malikis, de facto, and Hanbalis, de jure, in contrast to the Hanafis and Shafi‘is, were willing to give arbitrators powers that exceeded the powers of the parties to the dispute. According to the Hanbalis, an arbitrator could hear all legal claims, including cases involving marriage, divorce, and canonical punishments (ḥudūd). While Malikis held that an arbitrator had no original jurisdiction to hear such claims, should an arbitrator exceed his jurisdiction and rule on those cases, his rulings would be enforced to the extent that they were substantively correct. If the arbitrator attempted to enforce such rulings, however, he could be criminally liable for exceeding his jurisdiction.

As a general rule, an arbitrator needed to have the same qualifications as a judge, but, as in the case of the arbitrator who exceeded his jurisdiction, the Malikis were willing to enforce the judgment of female arbitrators, arbitrators who were slaves, or arbitrators who were hostile to one of the disputing parties, on the condition in each case that the decision was substantively correct, even if in principle only free males who were neutral could serve as arbitrators. These relaxed procedural and jurisdictional principles were no doubt a reflection of the fact that the parties themselves chose the arbitrator, in contrast to the judge, whose jurisdiction was not subject to the parties’ consent.