Abstract:
In the present era, with the increase in individual relations across various dimensions—financial and non-financial—disputes between them have also been increasing. The increase in disputes has caused the judiciary to face problems in adjudications, and given the high volume of cases, damages such as delay in proceedings, decrease in the speed of adjudication, and occasionally the issuance of contradictory rulings, etc., have plagued this system and ultimately resulted in the dissatisfaction of the litigants; therefore, it seems that if a private judicial system also accompanies and cooperates with the state judicial system in the investigation and settlement of disputes, it will play an effective role in eliminating the aforementioned damages. Since Islamic judgment requires an Islamic judicial system, the legitimacy of this private system must be proven; after reviewing and re-reading Islamic texts regarding judgment, especially hadiths, as well as studying the works and lectures of jurists regarding judgment, we encounter an institution under the title of arbitration, for which there are even evidences of its practice during the era of legislation; therefore, we aim to design and implement a private judicial system based on the institution of arbitration, while acknowledging that some concepts and institutions may be restructured according to time and place and utilized in a new format and shape. Therefore, based on the famous opinion of Shia jurists, arbitral judgment in the era of Occultation is permissible and acceptable, but in contrast, a group of jurists, in discussing the conditions of the arbitral judge, have pointed to the lack of objectivity of the arbitral judge in the era of Occultation, and some of them consider the assumption of the existence of an arbitral judge during the presence [of the Imam] to be impossible under certain conditions. Therefore, in this writing, by explaining the opinions and reasons for the legitimacy of the arbitral judge, how to prove the legitimacy of the private judicial system through the institution of arbitration will be investigated.
Machine summary:
In addition to this solution, if the parties to the dispute are not successful in reconciliation, a second way is opened before them so that they are not forced to refer to the judicial system; according to the famous opinion of Shia jurists, they can, by mutual agreement and in the presence of an appointed judge outside the judicial system, select a person who meets the necessary conditions and consent to his arbitration among themselves, at which point his ruling will be binding upon them; such a person is called an arbitrator (qadi al-tahkim) in jurisprudence, and jurists have mentioned the arbitrator in their works.
E - Consensus (Ijma) and Absence of Disagreement Great jurists, when explaining the reasons for proving the legitimacy of the arbitration judge, have also referred to consensus; in the book al-Khilaf, it is stated in this regard: "Whenever two people by mutual consent choose a man from the subjects and ask him to judge between them, it is permissible and -in this regard- there is no differing opinion; thus, whenever he judges, his ruling is binding and effective, and those two persons will not have any choice -regarding the non-execution of the ruling- after that" (Sheikh Tusi, 1417 AH, Vol. 6, p.
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