Maqāṣid Al-Sharī’ah and Development of Contemporary Sharia Arbitration Doctrine as an Alternative for Sharia Economic Dispute Resolution

Abstract

The settlement of muamalah disputes in the Islamic tradition has been carried out since the time of the Prophet Muhammad. Dispute settlement can be done through courts known as litigation and through shulh, fatwa, tahkîm, mazhâlim, hisbah, or what is known as non-litigation. The purpose of this study is to analyze arbitration and its relationship with resolving disputes that occur against Muslims, especially in the field of Islamic financial institutions. In line with the spread of Muslims in various parts of the world with various characteristics, this requires the existence of a dispute resolution institution. This study will also examine how the position of arbitration and its relevance to Maqāṣid Al-Sharī’ah. This study uses a qualitative method with a literature study approach. The results of this study conclude that the form of muamalah dispute resolution that occurs today is almost the same as dispute resolution during the time of the Prophet Muhammad, although the naming is different the basic principle is the same. For example, the litigation route through the judiciary and the non-litigation route through peace or alternative dispute resolution (ADR) in fiqh is called shulh and through arbitration/tahkîm. The disputing parties are allowed to choose to settle the case through the judiciary and outside the judiciary such as through shulh, peace, and arbitration in Basyarnas.