scholarly journals Comparing Islamic and International Laws of War: Orthodoxy, “Heresy,” and Secularization in the Category of Civilians

2021 ◽  
Author(s):  
Lena Salaymeh
Keyword(s):  
Comparative Analysis ◽  
International Law ◽  
Islamic Law ◽  
Legal Reasoning ◽  
Legal Issues ◽  
Laws Of War ◽  
Legal Tradition ◽  
International Laws ◽  
Definition Of ◽  
The U.S

Abstract This Article investigates how contemporary laws of war rationalize civilian deaths. I concentrate on two specific legal constructions in warfare: the definition of civilian/combatant and the principle of distinction. (The categories of civilian and combatant should be understood as dialogically constitutive and not entirely distinct. In addition, the category of “civilian” is a modern one and premodern legal sources often do not use one term to refer to noncombatants.) I focus on two significant parties in contemporary warfare: al-Qāʿidah (aka Al-Qaeda) and the U.S. military. Al-Qāʿidah diverges from orthodox Islamic law on these two legal issues, while remaining within the Islamic legal tradition. To scrutinize the nature of this divergence, I compare al-Qāʿidah’s legal reasoning to the legal reasoning of the U.S. military. I demonstrate that the U.S. military diverges from orthodox international law in ways that parallel how al-Qāʿidah diverges from orthodox Islamic law. Specifically, both the U.S. military and al-Qāʿidah elide orthodox categories of civilians and expand the category of combatant, primarily by rendering civilians as probable combatants. Based on this comparative analysis, I argue that the legal reasoning of al-Qāʿidah (and other militant Islamist groups) is as secular as it is Islamic; I call this fusion secularislamized law.

scholarly journals Emanations of the informational state: Cyber operations and the difficulties

First Monday ◽  
2017 ◽  
Vol 22 (5) ◽  
Author(s):  
Sandra Braman
Keyword(s):  
Comparative Analysis ◽  
International Law ◽  
The State ◽  
First Century ◽  
Laws Of War ◽  
International Laws ◽  
Twenty First Century ◽  
Political Form ◽  
Over Time

>The Tallinn Manual of 2013 and its second edition, the Tallinn Manual 2.0 of 2017, are NATO-funded analyses of how existing international laws of war apply to cybersecurity and cyberwarfare. The difficulties faced by the groups of legal experts who produced these works often involve fundamental aspects of what it is to be a state altogether, challenging the survival of the state as a dominant political form altogether. These developments, in turn, provide significant challenges to the survival of the Westphalian system within which states have been defined for almost 500 years. This article thinks through the Tallinn manuals from the lens of what debates over the appropriate legal treatment of cyber operations under international law tells us about how the state is being experienced and understood in the second decade of the twenty-first century. Comparative analysis of the first and second editions of the Manual shows that just what the informational state is, what it can do, and what it should be allowed to do is becoming less clear, not more, over time.

scholarly journals Pemikiran Abdullah An-Na`Im Tentang Teori Evolusi Syari`Ah (Nasakh) Dan Relevansinya Dengan Metode Istinbath Hukum Islam

2020 ◽  
Vol 5 (1) ◽  
pp. 1
Author(s):  
Dwi Sagita Akbar ◽  
Busyro Busyro ◽  
Afifi Fauzi Abbas
Keyword(s):  
Human Rights ◽  
International Law ◽  
Islamic Law ◽  
Legal Issues ◽  
High Complexity ◽  
Classical Scholar ◽  
Contemporary Islam

<em>In order to offer a transformative discourse Abdullah Ahmad An-Na'im build a method he called with the evolution of Shari'ah (abrogated). According to him the method can respond to contemporary issues at this time. Because he assumed that abrogating is one of the principal methods and has a wide and high complexity in theology and fiqh (jurisprudence) of Islam. He tries to deconstruct abrogated method and also some methods of ijtihad that had been considered settled by the classical scholar. Abdullah Ahmad An-Na'im radically have done repeated studies against the epistimologi Islamic law as well as the mereformulasi return and customize it with the standard of human rights as well as international law as a benchmark. The method developed by Abdullah Ahmad An-Na'im, he stated three important things that need to be done to realize the abrogating. Text, values of humanity, and logic. He also overestimated human rights, so that a text (paragraph) may be enforced in accordance with human rights. In order to answer the legal issues of contemporary Islam.   </em>

Islamic Law and International Law

2019 ◽  
pp. 86-124
Author(s):  
Emilia Justyna Powell
Keyword(s):  
International Law ◽  
Analogical Reasoning ◽  
Islamic Law ◽  
Religious Affiliation ◽  
Customary Law ◽  
Legal Tradition ◽  
Legal Traditions ◽  
And Gender ◽  
Role Of Religion

This chapter explores in considerable detail differences and similarities between the Islamic legal tradition and international law. It discusses in detail the historical interaction between these legal traditions, their co-evolution, and the academic conversations on this topic. The chapter also addresses the Islamic milieu’s contributions to international law, and sources of Islamic law including the Quran, sunna, judicial consensus, and analogical reasoning. It talks about the role of religion in international law. Mapping the specific characteristics of Islamic law and international law offers a glimpse of the contrasting and similar paradigms, spirit, and operation of law. This chapter identifies three points of convergence: law of scholars, customary law, and rule of law; as well as three points of departure: relation between law and religion, sources of law, and religious features in the courtroom (religious affiliation and gender of judges, holy oaths).

10 War Powers and the War on Terrorism

2020 ◽  
Author(s):  
Bradley Curtis A
Keyword(s):  
International Law ◽  
The United States ◽  
Legal Issues ◽  
War On Terrorism ◽  
Targeted Killing ◽  
War Powers ◽  
Self Defense ◽  
Geneva Conventions ◽  
Collective Self ◽  
The U.S

This chapter considers the relevance of international law within the U.S. legal system to the United States’ initiation and conduct of war, and it also discusses a variety of international law-related issues that have arisen in connection with the “war on terrorism” following the attacks of September 11, 2001. After briefly reviewing some of the most relevant treaties relating to war and warfare, the chapter considers the Constitution’s distribution of war authority between Congress and the president, as well as the contours of the 1973 War Powers Resolution. It then discusses how international law, including the provisions in the UN Charter relating to the authority of the Security Council, as well as collective self-defense treaties, might affect the president’s war authority. The chapter also discusses legal issues relating to the placement of U.S. troops under foreign or UN command. The chapter then shifts to the “war on terrorism,” and discusses the relevance of international law, including the Geneva Conventions, to issues concerning the scope of the military’s detention authority in that conflict. International law and other issues relating to the use of military commissions to try terrorist suspects are also considered. The chapter concludes by discussing legal debates relating to coercive interrogation and targeted killing.

Future International Laws of War

1939 ◽  
Vol 33 (3) ◽  
pp. 441-451 ◽  
Author(s):  
W. L. Rodgers
Keyword(s):  
International Law ◽  
Economic Conditions ◽  
Military Force ◽  
International Agreement ◽  
Laws Of War ◽  
The Past ◽  
International Laws ◽  
The Hague ◽  
Military Strength ◽  
Made In

Undoubtedly the generally recognized rules governing the exertion of military force at any given period are the outcome of social and economic conditions as well as of the development of new modes of attack upon life and property. Yet many believe that new forms of the exertion of military strength may be restrained by international agreement made in time of peace and in the name of humanity. Although such agreements have been made in the past, such as the Hague agreements of 1899 and 1907, not all have been viable. It is doubtful if effective ways of striking down the enemy will be limited by the bare plea of “humanity”. Restraint on the exercise of belligerent force for the sole reason that the sufferings of war are great and cruel is instinctive but not logical, for war is death and injury of persons and destruction of property by which the enemy is forced to submit. As to this matter Oppenheim says in his International Law: … First is the principle that a belligerent should be justified in applying any amount and any kind of force which is necessary for the realization of the purpose of the war—namely, the overpowering of the opponent. Secondly, the principle of humanity is at work, which says that all such kinds and degrees of violence as are not necessary for the overpowering of the enemy should not be permitted to the belligerent.

Sovereignty and the Laws of War: International Consequences of Japan's 1905 Victory over Russia

2011 ◽  
Vol 29 (1) ◽  
pp. 53-97 ◽  
Author(s):  
Douglas Howland
Keyword(s):  
Nineteenth Century ◽  
International Law ◽  
Laws Of War ◽  
International Conference ◽  
International Diplomacy ◽  
International Audience ◽  
International Laws ◽  
The Hague ◽  
Global War

The Russo–Japanese War (1904–1905), recently commemorated with several international conference volumes, is identified by a majority of contributors as the first modern, global war. In making such a judgment, these scholars note its scale, its nationalism, its colonialism and geopolitical repercussions. What is surprising, however, is that no one has remarked on another significance: it was the first war in which both belligerents pledged to adhere to the international laws of war. In that regard, the Russo–Japanese War marks a culmination of the tireless international diplomacy to secure legal limitations on warfare in the nineteenth century. In 1904, both Russia and Japan justified their operations according to international law, for the benefit of an international audience who had five years earlier celebrated some progress with the signing of The Hague Conventions in 1899.

scholarly journals Human Rights, the Laws of War, and Reciprocity

2013 ◽  
Vol 6 (2) ◽  
pp. 147-171 ◽  
Author(s):  
Eric A. Posner
Keyword(s):  
Human Rights ◽  
Collective Action ◽  
International Law ◽  
Human Rights Law ◽  
Laws Of War ◽  
Human Rights Regime ◽  
Collective Action Problems ◽  
Patterns Of Behavior ◽  
Self Enforcement ◽  
The U.S

Abstract Human rights law does not appear to enjoy as high a level of compliance as the laws of war, yet is institutionalized to a greater degree. This Article argues that the reason for this difference is related to the strategic structure of international law. The laws of war are governed by a regime of reciprocity, which can produce selfenforcing patterns of behavior, whereas the human rights regime attempts to produce public goods and is thus subject to collective action problems. The more elaborate human rights institutions are designed to overcome these problems but fall prey to second-order collective action problems. The simple laws of war institutions have been successful because they can exploit the logic of reciprocity. The Article also suggests that limits on military reprisals are in tension with self-enforcement of the laws of war. The U.S. conflict with Al Qaeda is discussed.

scholarly journals THE PRONOUNCED (LITERAL) MEANING OF THE LEGISLATIVE TEXT (AL-MANṬŪQ) IN SHAFII SCHOOL OF LAW

2019 ◽  
pp. 253-265
Author(s):  
Šukrija Ramić
Keyword(s):  
Legal Status ◽  
Islamic Law ◽  
Legal Reasoning ◽  
Literal Meaning ◽  
Legal Rules ◽  
The Difference ◽  
Definition Of ◽  
The Way

This paper explores the theoretical interpretations of the pronounced meaning of the legislative text (al-manṭūq) in the Shafii school of law and the consequences of such an interpretation for the rules that the Shafiis came to through their legal reasoning (ijtihād). At the beginning of the work, the discipline of linguistics is explained in the context of the Methodology of Islamic Law (Uṣūlu-l-fiqh) as well as its significance for ijtihad, followed by the difference between the Ḥanafis and the Shafiis in the classification of textual allusions (ad-dalalāt) of legislative texts, and the linguistic and terminological definition of the concept of al-manṭūq in the Shafii school of law. Also, the classification of al-manṭūq in the Shafii school of law is presented. Providing examples, the author clarifies the significance of al-manṭūq in the Shafii school of law and the way in which the Shafiis used al-manṭūq in their argumentation in support of legal rules. Furthermore, the author presents the classification of al-manṭūq and the restriction of its meaning with respect to the mafhūm al-muwāfeqa and mafhūm al-muhālefe. Finally, the value of al-manṭūq and its legal status as well as the indications in Shariah are clarified.

scholarly journals Сведения о Шихаб ад-Дине ал-Марджани в дагестанских рукописях в контексте дискуссий об иджтихаде в первой трети ХХ в.

Islamology ◽  
2019 ◽  
Vol 9 (1-2) ◽  
pp. 95
Author(s):  
Shamil Shikhaliev
Keyword(s):  
Intellectual History ◽  
20Th Century ◽  
Islamic Law ◽  
Legal Issues ◽  
Legal Tradition ◽  
Islamic World ◽  
Arabic Script ◽  
History Of

The article is devoted to the references to the Tatar scholar Shihabaddin Mardjani in the Dagestani Arabic-script manuscripts written in the first third of the 20th century. Daghestani scholars noted the important role of Mardjani and his works in the intellectual history of Islam. For this reason, they travelled to Kazan to get an acquaintance with him and copied his works. Dagestani scholars wrote reviews on his works as well as dedicated poems to Mardjani himself. Later, the name Mardjani entered the Dagestani legal tradition in the framework of debates on taqlid and ijtihad. Along with classical Arab scholars, the name of Mardjani has been often referred in Daghestani manuscripts on the theory of Muslim Law. Althoug Dagestani Muslim jurists held different views on issues of taqlid and ijtihad, each of them interpreted the ideas of Mardjani on Islamic legal issues in his own way. Regardless of their preferences in the matters of theory of Islamic law, Dagestani scholars highly valued the authority of Mardjani as a one of the major scholars in the Islamic World.

Legal Issues in Threat Assessment and Management

2021 ◽  
pp. 84-104
Author(s):  
Molly Amman ◽  
Ronald Schouten ◽  
Rachel B. Solov
Keyword(s):  
Legal System ◽  
Common Law ◽  
Threat Assessment ◽  
Legal Issues ◽  
Legal Counsel ◽  
Legal Tradition ◽  
Legal Advice ◽  
Anglo American ◽  
Areas Of Interest ◽  
The U.S

The legal considerations for threat assessment and management practitioners are many and varied. Constitutional, statutory, regulatory, and common law considerations all play a role in the legal landscape for professionals engaged in the discipline. This chapter focuses on key legal issues that affect the practice of threat assessment and management, with an emphasis on the U.S. legal system and primary relevance to those countries that follow the Anglo-American legal tradition. While the chapter provides a broad treatment of many areas of the law, an in-depth exploration of particular areas of interest is encouraged when needed. It is not intended as legal advice, but rather as a groundwork to prepare the reader to engage with their own legal counsel in seeking guidance in their work.

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