A Comparative Study of the Legitimacy and Role of Arbitration in Dispute Resolution across the Five Islamic Schools of Jurisprudence

Abstract

Arbitration is one of the oldest mechanisms of dispute resolution and occupies an important position in Islamic jurisprudence alongside formal adjudication. It enables disputing parties to refer their conflict to a trusted third party or a panel of arbitrators and thereby resolve disputes through a consensual process. Despite the broad acceptance of arbitration in Islamic legal thought, significant differences exist among the five Islamic schools regarding the foundations of the legitimacy of the arbitrator-judge, the required qualifications of arbitrators, the scope of arbitral jurisdiction, the relationship between arbitration and formal adjudication, and the binding force of arbitral awards. This study aims to comparatively examine the legitimacy and role of arbitration in dispute resolution from the perspectives of Imami, Hanafi, Maliki, Shafi‘i, and Hanbali jurisprudence. The research adopts a descriptive-analytical method with a comparative approach and analyzes relevant jurisprudential and legal materials. The findings indicate that party consent, arbitrator competence, justice, and conformity of the award with Islamic legal principles constitute common foundations across the five schools, although the relative weight and practical application of these elements differ. Imami jurisprudence tends to conceptualize arbitration as an institution closely connected to formal adjudication and therefore places greater emphasis on the scholarly and ethical qualifications of the arbitrator. Hanafi jurisprudence gives greater significance to party consent and mutual trust, while Maliki and Hanbali jurisprudence generally adopt intermediate and mixed approaches. Shafi‘i jurisprudence also reflects diverse views concerning the extent and conditions of arbitral legitimacy. Differences further emerge regarding arbitrable disputes, the level of legal knowledge required of arbitrators, and the binding effect of arbitral decisions. Overall, arbitration is recognized across the five schools as a legitimate and effective mechanism that, when conducted within appropriate religious and legal limits, can facilitate peaceful dispute resolution, accelerate proceedings, preserve social relationships, and reduce the burden on formal courts.