Arbitration
(taḥkīm)

Naseer Ahmad and Muzaffar Iqbal

The process by which parties to a dispute agree to settle their dispute through arbiter(s) and abide by the decision of the arbiter(s). In legal terminology, arbitration (taḥkīm) is distinguished from the settlement of a dispute by an official judge (qāḍī) whose decision (ḥukm) is implemented by state authority (see below and Judgment).

The Qurʾān mentions arbitration in four contexts: (i) willing acceptance of Prophetic arbitration being a condition of true belief (Q 4:65); (ii) Prophetic arbitration confirming the punishment for adultery in the Torah  (Q 5:41-45); (iii) marital disputes (4:35); and (iv) determining the expiation necessary for killing game during pilgrimage (Q 5:95). The word “arbiter” (ḥakam, from the root ḥ-k-m) appears three times in the Qurʾān, referring once (Q 6:114) to Allah and twice (Q 4:35) to humans.

Definitions and Usage

The primary meaning of the root ḥ-k-m is “to restrain,” its predominant usage being in the context of judgment (ḥukm); for true judgment “restrains” from iniquity (ẓulm) (Ibn Fāris, Maqāyīs; Rāghib, Mufradāt). The one who passes judgment is called the ḥākim, for he prevents the oppressor from oppression (Azharī, Tahdhīb). Other meanings of the root include wisdom (ḥikma), justice (ʿadl), knowledge (ʿilm), forbearance (ḥilm), and understanding (fiqh). The Prophet Yaḥyā son of Zakariyyā, upon them both peace, was granted wisdom (ḥukm) while he was yet a child (Q 19:12). Al-Ḥakam is one of the Names of Allah Most High (see Beautiful Names of Allah); He is the Wisest of Judges (aḥkam al-ḥākimīn) (Q 95:8).

Legally, arbitration comprises appointment of a mutually acceptable arbiter by the disputing parties, with the expressed agreement to accept the verdict given by the arbiter as well as full acceptance of that role by the arbiter (Ibn Nujaym, al-Baḥr al-rāʾiq 7:24). The legal validity of arbitration is well-established in the Qurʾān, Prophetic practice (Sunna), and scholarly consensus (ijmāʿ) (Samarqandī, Baḥr; Qurṭubī, Tafsīr, sub Q 4:35). Only the early sect of the Khawārij denied the validity of arbitration by their interpretation of Q 6:114 (Shall I seek a judge other than Allah, when He it is Who has sent down this Book unto you, clearly spelling out the truth…?) and Q 40:12 (Judgment belongs to Allah alone, the Exalted, the Great). They proclaimed the slogan “No judgment but that of Allah!” (Lā ḥukma illā li-Llāh), to which ʿAlī b. Abī Ṭālib (13bh-40/609-660), Allah be well-pleased with him, replied: “A true statement (kalimat ḥaqq), but used for falsehood (urīda bi-hā l-bāṭil)” (ʿAbd al-Razzāq, Tafsīrsub Q 40:12; al-Suyūṭī, al-Iklīl p. 121; Ibn Nujaym, al-Baḥr al-rāʾiq 7:24). Al-Nawawī (631-676/1234-1277) cites the precedent of the Prophet appointing Saʿd b. Muʿādh (d. 5/627) arbiter in the case of Banū Qurayẓa (cf. Muslim, Jihād, jawāz qitāl man naqaḍ al-ʿahd…) as proof for the validity of arbitration (Nawawī, Sharḥ Muslim 12:92).

Jurists differentiate between arbitration and a judgment (al-qaḍāʾ) passed by a state-appointed judge (qāḍī), for which the consent of the disputing parties is not a condition for the judgment to take effect. The legal schools differ on the scope of matters subject to discretionary arbitration, but generally exclude matters for which the Qurʾān and the Sunna provide specific legal punishments (ḥudūd, taʿzīr). These exclusions include matters related to blood money (see also Retaliation), slander (qadhf), and others which fall under the “Boundaries of Allah” (ḥudūd Allah) and so require a judge appointed by the ruler or state (Ibn al-ʿArabī, Aḥkām 2:125; al-Nawawī, al-Majmūʿ 20:127; al-Kharshī, Sharḥ Mukhtaṣar Khalīl 1:145; Ibn Qudāma, al-Kāfī 4:224; Ibn Qudāma, Sharḥ al-kabīr 11:393).


Acceptance of Prophetic Arbitration as a Condition of True Belief

Q 4:65 makes the willing acceptance of the Prophet’s arbitration a condition of true faith: But no, by your Sustainer, they are not true believers until they make you arbiter (yuḥakkimūka) in what they dispute among themselves, and then do not find the least vexation in their hearts on what you decide (qaḍayta), and accept it in complete submission. Exegetes, based on reports from Companions or Successors, offer as the “occasion of revelation” of this verse that it was revealed (cf. Tafsīrs of Ibn Kathīr, Ṭabarī, Samʿānī; Ibn ʿAtiyya, Muḥarrar):

Generally concerning those hypocrites who would seek a diviner (kāhin) (see Soothsayer) to settle their disputes, according to the opinion of the Successors Mujāhid b. Jabr (21-104/642-722) and ʿAṭāʾ b. Abī Rabāḥ (27-114/647-732);

specifically concerning a Jewish leader and a hypocrite: the former had sought to bring their dispute to the Prophet, upon him blessings and peace, because he knew that it would be settled justly, while the hypocrite preferred to take it to a pagan diviner (kāhin);

concerning Ḥāṭib b. Abī Baltaʿ, one of the Anṣār, in his dispute over irrigation with the Prophet’s cousin al-Zubayr b. al-ʿAwwām, according to ʿAbd Allāh b. al-Zubayr, ʿUrwa b. al-Zubayr, and other Companions; and

concerning a complainant who, displeased at a verdict passed by the Prophet, sought another judgment from ʿUmar b. al-Khaṭṭāb—but Ibn Kathīr points out weaknesses in this report.

Ibn Ḥajar (773-852/1371-1449) says that these different occasions are not mutually exclusive, as a verse may be relevant to more than one event (Fatḥ al-bārī 5:38) and as the second explanation can be understood as a specific instance of the first.

The third of these four occasions is reported by al-Zubayr himself, who related that he and one of the Anṣār disputed concerning the use of water passing through Ḥarra (a locality near Madina), water to which al-Zubayr had right of access but which they both used to irrigate their crops (see Agriculture). They took the dispute to the Prophet, upon him peace and blessings, who told al-Zubayr, “Use the water and then let it go to your neighbor”—that is, the Prophet spoke as an arbiter, with generous consideration for both parties. Upon this, the Anṣārī became vexed, for he deemed he had exclusive right to that water, and he exclaimed to the Prophet, “This [judgment] is so because he (al-Zubayr) is your paternal cousin!” At this, the color of the Prophet’s face changed, and he said to al-Zubayr, “Irrigate your land and then hold the water until it reaches the dam”—meaning, do not let it reach the other’s land, speaking as a judge and affirming al-Zubayr’s exclusive right to the water. Al-Zubayr would later observe, “It is my considered opinion (wa-Llāh mā aḥsibu) that this verse (Q 4:65) was revealed about this very matter” (Bukhārī, Ṣulḥ, idhā ashār al-imām bil-ṣulḥ fa-abā, ḥakama ʿalayhi bil-ḥukm al-bayyin). Al-Ṭabarī considers the case of the Jewish leader and the hypocrite to be the primary context of the verse and its relevance to the irrigation dispute secondary (Ṭabarī, Tafsīr, sub Q 4:65). Ibn ʿAṭiyya (d. 546/ca.1151) prefers al-Zubayr’s context on the basis of al-Zubayr’s own statement that the verse was revealed concerning his dispute (Muḥarrar).

Even though the Qurʾān uses the word “arbitration” (yuḥakkimūka) rather than judgment, the Prophet’s final decision in this case has the nature of a ruler’s binding judgment (qaḍāʾ), not that of arbitration (taḥkīm); as indicated by the chapter heading under which al-Bukhārī (d. 256/870) listed al-Zubayr’s report, which states that the ruler (al-imām) should give a legal ruling if counseled reconciliation (ṣulḥ) fails. Concerning this Qurʾānic usage in Q 4:65, Abū al-Suʿūd (898-982/1492-1574) says, “Even though the Prophet, upon him blessings and peace, was a ruler (ḥākim) by the command of Allah, glorified be He, [the word] ‘arbitration’ (taḥkīm) is used here to emphasize that quite apart from his position as ruler, it befitted them more to make the Prophet their arbiter (ḥakam) and be content with his verdicts (bi-ḥukmih), just as one is content with the verdict of a judge” (Irshād).


Prophetic Arbitration Confirming a Rabbinical Judgment on Adultery

According to exegetical and hadith sources, mention of arbitration in Q 5:41-45 was occasioned by the Prophetic confirmation of a rabbinical punishment for adultery (see Adultery and Fornication): O Messenger, be not grieved by those who vie one with another in disbelief—of such as say with their mouths: “We believe,” but their hearts believe not; and of the Jews those [eager] listeners for the sake of falsehood, listeners on behalf of other folk who come not unto you; changing words from their context and saying: If this [judgment] is given you, receive it; but if it is not given you, then beware! [Grieve not for them, for] he whom Allah wills into temptation [to sin], you will avail him naught against Allah. They are the ones whose hearts Allah does not want to cleanse. Theirs shall be ignominy in the world, and in the Hereafter an awful doom. Listeners for the sake of falsehood! Greedy for illicit gain! If, then, they have recourse to you [Muḥammad] judge between them or disclaim jurisdiction (fa-ḥkum baynahum aw aʿriḍ ʿanhum). If you disclaim jurisdiction, then they cannot harm you at all. But if you judge (ḥakamta), judge (fa-ḥkum) between them with equity. Truly Allah loves the equitable. And how is it they make you an arbiter (yuḥakkimūnaka), while they have the Torah, containing the judgment (ḥukm) of Allah? Yet in spite of that they then turn their backs; and they are not believers. Verily, We sent down the Torah containing guidance and light. The Prophets, who had submitted, judged by it (yaḥkumu bihā) for the Jews, and so did the rabbis and scribes as they were charged to preserve the Book of Allah; and they were witnesses to it (i.e., its truth). So do not fear people, but fear Me, and do not barter away My signs for a paltry gain. Whoever does not judge (lam yaḥkum) by what Allah has sent down—it is they who are faithless. And in it We prescribed for them: a life for a life; an eye for an eye; a nose for a nose; an ear for an ear; and a tooth for a tooth; and retribution for wounds. But whosoever remits it out of charity, that shall be an expiation for him. Whoever does not judge (lam yaḥkum) by what Allah has sent down—it is they who are the wrongdoers (Q 5:41-45).

Certain Jews of Madina had requested the Prophet, upon him blessings and peace, to arbitrate for them in a case of adultery, whether to test the Prophet or in the hope that he would sanction their practice of issuing the lighter sentence of lashing instead of the Torah’s express punishment of lapidation (rajm) (cf. Tafsīrs of Ṭabarī, Qurṭubī, Ibn Kathīr; Ibn Ḥajar, Fatḥ al-bārī 12:168)—or, according to Abū al-ʿAbbās Aḥmad al-Qurṭubī (578-656/1182-1258), because they believed the Prophet to have been sent with ease (compared to the strictness of their Law) and they would then be able to use his lighter sentence as an excuse before Allah, saying, “one of Your Prophets decided this” (Mufhim 5:109).

The Prophet asked them, “What do you find in the Torah about the stoning (rajm) of adulterers?” They said, “We [rather] blacken their faces and lash them.” He said, “Do you not find stoning to death in the Torah?” They replied, “We do not find anything in it.” ʿAbd Allāh b. Salām, who was present there, said to them, “You have lied! Bring here the Torah and recite it if you are truthful.” They brought and opened the Torah scrolls, but one of them laid his hand over the verse of rajm and read the verses preceding and following it. ʿAbd Allāh b. Salām told him, “Lift your hand.” When he lifted his hand, the verse ordaining stoning was found there (see Tampering). They said, “Muḥammad has told the truth; the Torah has the verse of rajm.” The Prophet then gave the order to stone the adulterers to death. (…)” (Bukhārī, Ḥudūd, aḥkām ahl al-dhimma wa iḥṣānihim; Muslim, Ḥudūd, rajm al-Yahūd ahl al-dhimma fī-l-zinā).


In Marital Disputes

Arbitration is enjoined in Q 4:35: If you fear a split between the two of them, then appoint an arbiter from his relatives and an arbiter from her relatives (fa-bʿathū ḥakaman min ahlihi wa ḥakaman min ahlihā). If they desire reconcilement, Allah shall reconcile them. Indeed Allah is All-Knowing, All-Aware. Jurists explicate various details such as whether it is obligatory or merely meritorious for disputing spouses to pursue arbitration before divorce (al-Nawawī, Rawḍat al-ṭālibīn 7:371); who is responsible for electing arbiters (cf. Tafsīrs of Ṭabarī and Qurṭubī); and necessary characteristics of arbiters (al-Bājī, al-Muntaqā sharḥ Muwaṭṭaʾ 4:113). Furthermore, they explain that blood relatives (q.v.) are the best arbiters in such cases, both because of their vested love and concern and the impartiality stemming from their appointment by each disputing party (Zamakhsharī, Kashshāf; Jaṣṣāṣ, Aḥkām al-Qurʾān) (see Marriage and Divorce). 


Determining the Expiation for Unlawful Hunting

Arbitration determines the expiation for hunting game while on pilgrimage (q.v.), as in Q 5:95: O you who believe, kill no game while you are in the state of pilgrimage (antum ḥurum). And whoever of you kills it intentionally, its expiation (jazāʾ) is cattle equivalent to what he has killed, with two persons of probity giving their judgment thereon (yaḥkumu bihi), to be brought to the Kaʿba, or atonement (kaffāra) by feeding the needy, or its equivalent in fasting. [This is] in order that he taste the full gravity of his deed. Allah has forgiven what is already past; but should anyone do it again, Allah shall inflict His retribution on him; for Allah is All-Mighty, Vengeful. Al-Jaṣṣāṣ (305-370/918-981) explains that it is necessary to appoint two just arbiters for each case, because game differs in size and kind and it is the duty of the arbiters to determine the exact equivalent of the killed game (Aḥkām al-Qurʾān). Muḥammad b. al-Ḥasan al-Shaybānī opines that arbiters have the right to decide which of the three modes of atonement the pilgrim at fault should undertake, whereas al-Rāzī (543-606/1148-1209) quotes the opinion of Imam al-Shāfiʿī (150-204/767-820) that in cases where precedent judgments of the Companions exist they must be followed, “because they witnessed the descent of the Qurʾān and were present at the time of its explication” (Tafsīr).


Bibliography

ʿAbd al-Razzāq. Tafsīr.

Abū al-Suʿūd. Irshād.

Azharī. Tahdhīb.

al-Bājī, Abū al-Walīd Sulaymān b. Khalaf. al-Muntaqā sharḥ Muwaṭṭaʾ. 7 vols. 2nd ed. Cairo: Dār al-Kitāb al-Islāmī, n.d.

Bukhārī. Saḥīḥ.

Farāhīdī. ʿAyn.

Ibn al-ʿArabī. Aḥkām.

Ibn ʿAṭiyya. Muḥarrar.

Ibn Fāris. Maqāyīs.

Ibn Ḥajar. Fatḥ al-bārī.

Ibn Kathīr. Tafsīr.

Ibn Nujaym, Zayn al-Dīn b. Ibrāhīm b. Muḥammad. al-Baḥr al-rāʾiq sharḥ Kanz al-daqāʾiq. With Takmilat al-Baḥr al-rāʾiq by Muḥammad b. Ḥusayn al-Ṭūrī and Minḥat al-khāliq by Ibn ʿĀbidīn. 8 vols. 2nd ed. Beirut: Dār al-Kitāb al-Islāmī, n.d.

Ibn Qudāma al-Maqdisī, Muwaffaq al-Dīn ʿAbd Allāh b. Aḥmad. al-Kafī fī fiqh al-Imām Aḥmad. 4 vols. Beirut: Dār al-Kutub al-ʿIlimiyya, 1414/1994.

Ibn Qudāma al-Jamāʿīlī al-Maqdisī, Shams al-Dīn ʿAbd al-Raḥmān b. Muḥammad b. Aḥmad. Sharḥ al-kabīr ʿalā matn al-Muqniʿ. Ed. Muḥammad Rashīd Riḍā. Beirut: Dār al-Kitāb al-ʿArabī lil-Nashr wal-Tawzīʿ, n.d.

Jaṣṣāṣ. Aḥkām al-Qurʾān.

al-Kharshī, Abū ʿAbd Allāh Muḥammad b. ʿAbd Allāh. Sharḥ Mukhtaṣar Khalīl. 8 vols. Beirut: Dār al-Fikr lil-Ṭibāʿa, n.d.

Muslim. Saḥīḥ.

al-Nawawī, Muḥyī al-Dīn Yaḥyā b. Sharaf. al-Majmūʿ sharḥ al-Muhadhdhab. With the supplements of al-Subkī and al-Muṭīʿī. 20 vols. Beirut: Dār al-Fikr, n.d.

al-Nawawī, Abū Zakariyyā Yaḥyā b. Sharaf. Rawḍat al-ṭālibīn wa ʿumdat al-muftī. Ed. Zahīr al-Shāwīsh. 12 vols. Beirut: al-Maktab al-Islāmī, 1412/1991.

Nawawī. Sharḥ Muslim.

al-Qurṭubī, Abū al-ʿAbbās Aḥmad b. ʿUmar b. Ibrāhīm. al-Mufhim limā ashkala min talkhīṣ kitāb Muslim. Ed. Muḥyī al-Dīn Dīb Mastaw, Yūsuf ʿAlī Budaywī, Aḥmad Muḥammad al-Sayyid, and Maḥmūd Ibrāhīm Buzāl. Damascus: Dār Ibn Kathīr; Beirut: Dār al-Kalim al-Ṭayyib, 1417/1996.

Qurṭubī. Tafsīr.

Rāghib. Mufradāt.

Rāzī. Tafsīr.

Samʿānī. Tafsīr.

Samarqandī. Baḥr.

al-Suyūṭī, Jalāl al-Dīn ʿAbd al-Raḥmān b. Abī Bakr. al-Iklīl fī istinbāṭ al-Tanzīl. Ed. Sayf al-Dīn ʿAbd al-Qādir al-Kātib. Beirut: Dār al-Kutub al-ʿIlmiyya, 1401/1981.

Ṭabarī. Tafsīr.

al-Zamakhsharī, Jār Allah Abū al-Qāsim Maḥmūd b. ʿUmar. Asās al-balāgha. Ed. Muḥammad Bāsil ʿAyyūn al-Sūd. 2 vols. Beirut: Beirut: Dār al-Kutub al-ʿIlmiyya, 1419/1998.

Zamakhsharī. Kashshāf.


See also

© 2020 CIS. All Rights Reserved