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And if you fear dissension between the two, send an arbitrator from his people and an arbitrator from her people. If they both desire reconciliation, Allah will cause it between them. Indeed, Allah is ever Knowing and Acquainted [with all things]. -- Qur'an 4:35

I interpret "his/her people" as meaning "his/her family" (which seems to match some translations at Islam Awakened and this answer to my previous question). A convert, for example, may not have any Muslim family members, and I'm wondering if they can use non-Muslim family members for arbitration.

Question: Can an arbitrator for domestic disputes in Qur'an 4:35 be a non-Muslim?

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There is no verse from Qur'an or hadith that defines the criteria of the arbitrators. This was a task that scholars of jurisprudence undertook:

  • Hanafis do not require the arbitrators to be Muslims, but Malikis, Shafi'is, and Hanbalis do.
  • Hanafis and Shafi'is do not require that the arbitrators be a relation, but Malikis and Hanbalis do.

Therefore, in a case of a spouse with no Muslim family members, the spouse may appoint someone from the community that they trust to be able to conduct the roles required, as this would satisfy the majority of the opinions (included below for your reference).


Hanafi view

As per Radd al-Muhtār (Arabic: رد المحتار على الدر المختار) by Ibn Abidin, Hanafis require that the arbitrators be:

  1. Of sound mind
  2. Adult
  3. Preferably relatives
  4. Free.

Maliki view

As per al-Mudawwana (Arabic: المدونة) by Malik ibn Anas, Malikis require that the arbitrators be:

  1. Of sound mind
  2. Adult
  3. Muslim
  4. Free
  5. Relatives
  6. Male.

Shafi'i view

As per Rawdat at-Tālibīn (Arabic: روضة الطالبين وعمدة المفتين) by Al-Nawawi, Shafi'is require that the arbitrators be:

  1. Muslim
  2. Free
  3. Trustworthy (similar to the requirement of a hadith narrator, so includes sound mind, adulthood, not committing major sins, etc.)
  4. Understanding their roles as arbitrators and objectives of arbitration
  5. Relatives take priority.

Hanbali view

As per al-Mughni (Arabic: المغني) by Ibn Qudamah, Hanbalis require that the arbitrators be:

  1. Muslim
  2. Adult
  3. Of sound mind
  4. Trustworthy
  5. Relatives.

Deduction methodology

Each of these conditions were derived from verses based on interpretation by language and athar, then agreements of scholars, then jurisprudence of balance (fiqh al-muwāzana, which is based on the rule of warding off evil taking precedence over doing good). As an example, for the arbitrators being Muslim, in Zād al-Mī'ād (Arabic: زاد المعاد), Ibn al-Qayyim explains:

  1. Verses: Ibn al-Qayyim basedhis opinion on the verse of the Qur'an, the word used is hakam (Arabic: حكم), which is more of an arbiter than an arbitrator (i.e., authorized to settle the dispute with some judiciary powers, albeit limited to only the case they are called upon for, and by the phrase "if they both desire reconciliation", which means they have to endorse the final outcome and have a veto power). The conditions of judges were then used for the arbiter.
  2. Athar: Ibn al-Qayyim based his opinion on stories related in Musannaf Abdul-Raziq about 'Aqīl ibn Abi Talib and Fatima bint 'Utba (as spouses), and 'Ali ibn Abi Talib (as the Caliph), and Ibn 'Abbas, etc.
  3. Majority of opinion: Ibn al-Qayyim documented the opinions of the companions ('Ali ibn Abi Talib, 'Abdullah ibn 'Abbas, and Mu'awiyah ibn Abi Sufyan), who agreed on the criteria, then documented the differences that emerged during the two following generations.
  4. Fiqh al-Muwazana: Nothing documented by Ibn al-Qayyim, but other scholars did.

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