In accordance with the religious responsibility imposed on Muslims through the Quran and the Sunnah, having the judiciary and administration of Muslims be in accordance with Islamic law is an issue upon which Islamic scholars agree. The application of the mediation method offers the opportunity to fulfill this religious responsibility in countries not governed by Islamic law. The mediation method contributes to making Islamic law effective and is important in this respect. The scope of mediation does not cover matters that do not require a judicial ruling, such as worship. In addition, having the mediation method that is to be applied according to Islamic law also fall within a framework permitted by the legislation of the country where it will be applied is important. Otherwise, trying to apply a parallel judicial method contrary to a country’s legislation is not acceptable in terms of Islamic law as this will lead to undesirable results.  

Every Muslim needs to apply to jurisprudence based on Islamic law, whether or not they are in a country that adheres to Sharia law. A mediation method carried out in accordance with Islamic law replaces the authority of Sharia for Muslims living in countries not governed by Islamic law. According to Islamic law, mediation is mandatory for those who live in a country where Islamic law has no jurisdiction. This is because applying the jurisprudence of Islamic law is incumbent upon a Muslim. In cases where this is not possible, mediation in accordance with Islamic law is to be resorted to. Previous scholars have stated that referring to scholars is necessary in order to rule on a case in accordance with Sharia rule when an imam is not present, and this is expressed in the principle of the guardianship of the scholars.

No need exists for mediation in matters that do not require judicial ruling, such as worship, avoiding haram acts, and financial transactions where rights are clear and certain. Such provisions can be applied individually by a Muslim. Scholars disagree on the scope of mediation under Islamic law, but they agree that it is permissible with regard to financial matters and not permissible regarding public rights such as criminal law. In cases where Islamic jurisdiction is not available, the scope of arbitration is limited to the extent permitted by the laws of the country. Mediation is permissible in areas where the state allows arbitration. Meanwhile arbitration is not permissible in areas where the state does not allow it, because resorting to mediation in such areas will expose Muslims to the accusation of rebelling against the law and being separatists.

In the ninth conference session of the Islamic Fiqh Council, the council decided that arbitration is permissible for everything involving a pure human right, such as sales, marriage, and the like. This is because persons’ rights are legislated for their benefit, and they have the option if they wish to fulfill or ignore it. Thus, arbitration is permissible here. Arbitration is impermissible in everything that is rightful to God Almighty, such as punishments. Matters in which a ruling requires proving or denying a ruling with regard to non-litigants over whom the arbitrator has no jurisdiction are also not permissible for mediation, such as a curse due to the right of parentage over a child being linked to the child.

The jurisprudential differences regarding when arbitration is permissible do not have a great impact for Muslims who live outside Islamic lands because the matter ultimately depends on what the laws of their country allow regarding arbitration. This is a wide opportunity for Muslim jurists and experts to learn about everything where laws permit arbitration.

As for the person who should arbitrate in the cases of Muslims living outside the lands of Islam, the scholars’ statements agree that Muslims outside the lands of Islam must gather with their scholars and refer to them on all matters and make one of them an arbitrator. Some researchers have called this the principle of the guardianship of scholars. This principle does not mean the multiplicity of political authorities in one country. Rather, what is meant is for Muslims outside the lands of Islam to unite under their scholars. The decisions of the European Council for Fatwa and Research has stated that parties may choose one arbitrator, either a man or woman, or an arbitration panel of several individuals, and their number must be odd in number so that they can make the decision by a majority vote. The arbitrators are required to have knowledge of Sharia rulings and applicable laws and to be known for their integrity and uprightness. The European Council for Fatwa and Research has issued a list of executive procedures and legal provisions for arbitration with the aim of applying them regarding Sharia arbitration in countries not governed by Sharia law. The list includes the terms and scope of arbitration, the qualities and appointment of arbitrators, the arbitration instrument (i.e., arbitration charter party, arbitration contract), methods of ruling, procedures, and evidence in arbitration. The list also addresses issuing, communicating, and enforcing the arbitration award, as well as setting it aside, implementing the executive form of the award, and appealing an arbitration award.

Muslims living in countries not governed by Islamic law should request comprehensive provisions and laws that consider their religious characteristics from the countries in which they live and to give them the authority to resolve their problems in all areas through arbitration in compliance with Sharia law.

For countries not governed by Sharia law to have Islamic arbitration institutions that conduct sharia arbitration in Islamic cases is important. This institution includes scholars in Sharia, each of whom specializes in one of the fields in which arbitration can be conducted. These institutions should be based on specific regulations and instructions based in line with how they are governed.