International Law, Islamic Law, and Islamic Law States

2019 ◽  
pp. 25-85
Author(s):  
Emilia Justyna Powell
Keyword(s):  
Conflict Management ◽  
International Law ◽  
International Conflict ◽  
Islamic Law ◽  
Legal Systems ◽  
Clear Cut ◽  
Religious Law ◽  
Islamic Jurisprudence ◽  
The Relationship ◽  
Internal Variation

This chapter explains concepts fundamental to this book: international law, Islamic law, Islamic international law, sharia, and the category of Islamic law states (ILS). The ILS category offers an efficient and clear-cut conceptual vehicle for mapping out the balance between religious law and secular law, and how this balance translates into ILS’ preferences with respect to international conflict management venues. The chapter explains how the ILS category differs from other seemingly parallel concepts or definitions present in the scholarship, such as “Islamic states,” or “Muslim states.” It discusses the characteristics and internal variation within the ILS category across different countries and different schools of Islamic jurisprudence. This chapter also presents an analysis of ILS’ domestic legal systems, elaborating on Islamic constitutionalism, and the relationship between religious norms and secular norms in constitutions and sub-constitutional legal systems. Some features analyzed include holy oath, supremacy clause, and sharia education.

Conclusion

2019 ◽  
pp. 272-292
Author(s):  
Emilia Justyna Powell
Keyword(s):  
Conflict Management ◽  
International Law ◽  
Political Science ◽  
Dispute Resolution ◽  
International Conflict ◽  
Islamic Education ◽  
Science Literature ◽  
Legal Systems ◽  
Legal Tradition ◽  
International Dispute

This chapter summarizes the main arguments and the main empirical findings, stressing the timeliness of insights gained through this inquiry. It situates this research in the broader international law and political science literature, discussing the implications for policymakers. However disconcerting the dissonance between the Islamic legal tradition and international law may appear, there are more similarities between these two legal systems than the policy world and the scholarship take into account. The chapter discusses the importance of Islamic education in shaping states’ preferences vis-à-vis international conflict management. The inherent diversity of the Islamic milieu cannot be overlooked. International dispute resolution is what states make of it and it is up to them to define these mechanisms. In an important way, international law constitutes a broad enough framework to grant ILS space to tailor conflict management venues to their own needs and preferences, as dictated by their domestic legal systems.

Legal Systems and Variance in the Design of Commitments to the International Court of Justice

2009 ◽  
Vol 26 (2) ◽  
pp. 164-190 ◽  
Author(s):  
Sara McLaughlin Mitchell ◽  
Emilia Justyna Powell
Keyword(s):  
International Law ◽  
Islamic Law ◽  
Common Law ◽  
Civil Law ◽  
Legal Systems ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Bilateral Treaties ◽  
The Relationship

This paper explores the relationship between domestic legal systems and the design of commitments to the International Court of Justice (ICJ). Empirical analyses demonstrate that civil law states are more willing to recognize the compulsory and compromissory jurisdiction of the World Court than common law or Islamic law states. Common law states place the highest number of reservations on their optional clause declarations, with the majority of those restrictions relating to specific areas of international law. Civil law states typically embed compromissory clauses in multilateral treaties, while common and Islamic law states prefer recognition of the ICJ's jurisdiction through bilateral treaties.

scholarly journals GUGAT CERAI: MEMBEBASKAN PREMPUAN DARI PENDERITAAN

QAWWAM ◽  
2019 ◽  
Vol 13 (2) ◽  
pp. 101-122
Author(s):  
Nurmala Fahriyanti
Keyword(s):  
Life Cycle ◽  
Social Development ◽  
Islamic Law ◽  
Human Life ◽  
Daily Basis ◽  
State Law ◽  
Legal Systems ◽  
Religious Law ◽  
The Family

In Mataram West Nusa Tenggara, people is lives are regulated on daily basis by religious law, traditional (adat) law and state law. To understand these complex cultural and religious processes as they affect women in particular, I will examine the issue of divorce, also known as sue divorce. This tipe of divorce is socially-sanctioned. I will focus my examination in Mataram, an city of Lombok West Nusa Tenggara. In Lombok society marriage constitutes an important part of the life cycle.  Someone is not considered an adult until marriage.  Marriage is not only united two individual, but also united two families. However this dream canot be realized over the long term.  If family problems arise and  there are no suitable solutions, people may choose to divorce. For instance, if a wife unable to fulfill her obligations as a wife, her husband can divorce her by verbal means alone, according to any of the three existing legal systems (religious customary or state law). By contrast, if her husband unable to fulfill her obligations as a husband his wife can divorce him in only one way by making an application to Islamic Court to do divorce. In marriage available successful couple builds the family that sakinah, mawaddah and warahmah. But then available also that unsuccessful and end with separate or divorce. Separate constitutes a thing that often happens deep good human life divorce the initiating from the husband and also divorce the initiating from the wife, that its cause islamic law puts attention that adequately significant to that thing. It can appear if understand about islamic law, undoubtedly will find both of previous thing and its terminological  islamic law. There is no divorce without started by marriage. But upon that aim not attained, therefore divorce constitutes last way out that must been sailed through. Divorce can't be done but there is grounds which corrected by religion, adat and state law. In islamic law, that divorce grounds experience developing according to social development. Basically islamic law establishes that divorce reason which is wrangle which really culminates and jeopardize the so called soul safety with “ syiqaq ”. Intention is if worried a couple its happening dispute (dispute not only means wrangle among husband or wife can also distinctive principle and opinion) therefore delegate a someone of its husband family and a someone of wife family. And if both of wife and husband will goodness and they can make resolution and look for the solution, but if there are suitable solution wife or husband can do divorce.

scholarly journals MEMILIH PASANGAN BAGI ANAK PEREMPUAN: KAJIAN FIQIH & HAM

2016 ◽  
Vol 14 (1) ◽  
Author(s):  
Masthuriyah Sa’dan
Keyword(s):  
Human Rights ◽  
International Law ◽  
Islamic Law ◽  
Reproductive Rights ◽  
Muslim Women ◽  
World Conference ◽  
Islamic Jurisprudence ◽  
The World ◽  
Muslim Men ◽  
The Right

In Islamic jurisprudence (fiqh), the right to choose a partner for a woman is set by families. This then becomes the spotlight of many circles who argue that fiqh is discriminatory against women. Muslim men have the right to decide with whom to marry. In contrary, Muslim women do not have such a right. Women right is taken over by parents in the name of Islamic law. In the World Conference on Population and Women in Cairo-Egypt in 1994, however, women were proclaimed to have their own reproductive rights that must be protected and maintained. One form of the demands of the reproductive rights is the right of women to determine their own life partner. This paper wants to examine the right to choose a husband for women from the perspective of Islamic law and international law on human rights. Keywords: the right to choose, women, Islamic law, human rights.

Emergency, War and International Law – Another Perspective

2001 ◽  
Vol 70 (1-2) ◽  
pp. 29-63 ◽  
Author(s):  
◽  
Keyword(s):  
International Law ◽  
Point Of View ◽  
Theoretical Point ◽  
Clear Cut ◽  
Internal Armed Conflict ◽  
Theoretical Perspectives ◽  
State Behaviour ◽  
Emergency Responses ◽  
The Relationship ◽  
State Experience

AbstractThis article evaluates a spectrum of emergency responses by states. We are interested in exploring the variety of contexts in which states respond to internal and external crisis, and the manner in which international law contextualises and responds to the use of extreme measures by states. While international lawyers have become attuned to the prerogatives of states in derogating from their international human rights treaty obligations, we contend that this constitutes only one aspect of state emergency responses. We explore the extent to which states resort to extra-ordinary measures in multiple ways. In particular, we explore the relationship between war and emergency, from a theoretical point of view. Both classic inter-state conflicts are examined, as are the multiple situations of internal armed conflict, that frequently escape precise legal definition under international law. We take the view that international law has taken a limited and unrepresentative view of the scope and breadth of the emergency phenomena in state practice. From this general position some general observations follow. First, we identify the tendency of legal scholars to assert that clear dichotomies exist between normal and extreme conditions, when such clear-cut distinctions are not present. From this, we argue that `war' and `emergency', are not unique and entirely distinct phenomena. In short, we submit that emergency and its associated practices is a far more wide-spread and pervasive aspect of state experience and action than has generally been accepted by legal scholars and political thinkers. The consequence of this rethinking is a need to redefine the resort to the extraordinary in our perception of state behaviour and to modify our theoretical perspectives accordingly.

Islamic Law as a Comparable Model in Comparative Legal Research

2014 ◽  
Vol 3 (2) ◽  
pp. 186-202
Author(s):  
Hamid Harasani
Keyword(s):  
Islamic Law ◽  
Legal Systems ◽  
Legal Transplant ◽  
Legal Studies ◽  
Legal Method ◽  
Religious Law ◽  
The Subject ◽  
First World ◽  
Being Religious ◽  
Comparable Model

Increasingly, Islamic law has become the subject of comparative legal study. Further, in the applied sense, comparative legal studies’ greatest value lies in understanding our own legal systems, as well as benefiting from other legal systems by importing what we lack from them. Unlike secular legal systems, Islamic law, being religious in nature and having eschatological connotations, requires reworking the comparative legal method to take account of that. When it comes to religious laws, hermeneutics play a key role, as a religious legal system will only be receptive to foreign norms if such norms earn their place internally, following hermeneutic justification. Cultural and religious pride, as well as intellectual impartiality, decrees that a legal solution should not be preferable just because it comes from the First World. This paper will therefore formulate a methodology for comparative legal studies where religious law is one of the comparative models and there are potential suggestions of legal transplant.

scholarly journals Reconciliation between the Islamic Human Rights and International Law: Prospects and Complications

2019 ◽  
Vol 6 (4) ◽  
pp. 609
Author(s):  
Siamak Karamzadeh ◽  
Massoud Alizadeh
Keyword(s):  
Human Rights ◽  
International Law ◽  
Islamic Law ◽  
International Human Rights Law ◽  
International Human Rights ◽  
Historical Aspect ◽  
Historical Fact ◽  
International Human ◽  
Human Rights Norms ◽  
The Relationship

The relationship between International Human Rights and Islamic Law has been always an arguable debate at the international level. This issue can be considered by jurists in two aspects. First, from National Law perspective, especially in the countries in which the law, to some extent is affected by Islamic rules. Second, by view of International Law to see that to what extent, there would be compatibility or likely contradiction between human rights norms and Islamic Law.Considering the historical aspect of the issue, this article is suggesting that although from the outset, International Law tried to separate religion from policy, but this historical fact would not prevent theoretical conciliation between religion and Human Rights rules. The review of the content of International Human Rights Law reveals that the rules in the systems in most part are compatible. However, in some cases the incompatibility between these two group pf rules is observed. The existence of different basis under Islamic Law and International Law makes the least difference unavoidable. The constant dialogue between Islamic scholars and publicists can decrease this difference in future.

scholarly journals The Incorporation of Public International Law into Municipal Law and Regional Law against the Background of the Dichotomy between Monism and Dualism

2017 ◽  
Vol 17 (4) ◽  
pp. 1496
Author(s):  
Gerrit Ferreira ◽  
Anel Ferreira-Snyman
Keyword(s):  
International Law ◽  
South African ◽  
Constitutional Court ◽  
Legal Systems ◽  
Practical Application ◽  
Public International Law ◽  
Court Of Justice ◽  
European Court ◽  
Municipal Law ◽  
The Relationship

Monism and dualism represent two different approaches towards the relationship between public international law and municipal law. While the former views public international law and municipal law as a single legal system, the latter regards these two areas of law as separate and distinct legal systems that exist alongside each other. However, not all legal systems are clearly either monist or dualist. The dichotomy between monism and dualism no longer only concerns the relationship between public international law and municipal law, but also increasingly affects the relationship between public international law and regional law. This contribution discusses the application of the monist and dualist approaches by the South African Constitutional Court in the Glenister case and the European Court of Justice in the Kadi and Hungary cases in order to illustrate the practical application of the dichotomy between monism and dualism in a municipal system and on a regional level.

scholarly journals Correlation of International and Domestic Law: Procedural and Legal Problems

2021 ◽  
Vol 3 (3) ◽  
pp. 189-205
Author(s):  
Alexandr D. Magdenko ◽  
◽  
Alexandr Yu. Tomilov
Keyword(s):  
Public Relations ◽  
International Law ◽  
Civil Procedure ◽  
Constitutional Court ◽  
Legal Systems ◽  
Public And Private ◽  
Main Research ◽  
The Impact ◽  
The Relationship ◽  
Domestic Law

Introduction. Despite the multiplicity of works on the relationship between international and domestic law, this problem remains relevant, since due to changes in public relations, the understanding of the functioning of the rules of law changes. This concerns the problem of the influence of international law on the process of changes in civil procedure legislation. This issue also complicates the active phenomena of the globalisation of public relations, and the requirement of unification of legal relations, both in the public and private legal spheres. National communities have an interest in this. At the same time, the processes of borrowing and unification under the influence of international law in the civil procedure sphere have their own distinctive feature. They always give priority to national legal systems, which does not exclude, (due to the intensive convergence of different communities), the manifestation of elements of borrowing from the norms of international law. Theoretical BasIs. Methods. The main research methods are comparative legal and historical. The study analyses the relationship between international and national law in the framework of civil procedure relations, taking into account the effect of globalisation. Results. An analysis of the current nature of the relationship between international and domestic law allows us to conclude that the globalisation processes contribute to the convergence of these two legal systems. The modern interpretation of the Constitution in the light of the legal positions of the Constitutional Court marked a departure from the traditional Russian dualistic understanding of the problem of the relationship between international and domestic law in the direction of moderate monism. Discussion and Conclusion. The analysis of the impact of globalisation processes on the mechanism of implementation of international law in the field of civil procedure legislation is carried out. The obtained results and conclusions allow us to determine the features and nature of the current relationship between international law and national law in the framework of civil procedure relations.

scholarly journals The Contact Point of Customary Law and Islamic Law (Legal History Perspective)

2018 ◽  
Vol 5 (2) ◽  
pp. 51-59
Author(s):  
Rachmi Sulistyarini ◽  
A. Rachmad Budiono ◽  
Bambang Winarno ◽  
Imam Koeswahyono
Keyword(s):  
Islamic Law ◽  
Contact Point ◽  
Seventh Century ◽  
Customary Law ◽  
Inheritance Law ◽  
Legal Traditions ◽  
The People ◽  
Special Character ◽  
Religious Law ◽  
The Relationship

The period before various legal traditions encounter to Indonesia, the people living in these islands has owned rules that contain the value of values as the original law. The term of original law is also known as the name of "chthonic" law, and is used as the customary law of the community of Indonesia, or the archipelago known at that time. The customary law tradition is very different from other legal traditions; this system has a special character that is very different from the character of other legal traditions. Furthermore, around the seventh century of AD, the influence of religion encounter as well; the first is Hinduism, then the religion of Islam brought by traders from Arabia and India. The term known as custom, with its unwritten form and religious element as the definition proposed by Soepomo (1996), is indeed identical with the term given by experts in the colonial period such as: “Godsdientige Wetten, Volks instelingen En Gebruiken" (Regulation of Religious Ordinance, People's Institution and Customs), "Godsdientige Wetten, Instelingen En Gebruiken (Religious Regulations, Institutions, and Customs), Met Hunne Godsdiensten en Gewoonten Samenhangen de Rechts Regelen" (Rules of law relating to Religion and religion customs habits), in addition there are also called the Islamic Law or Mohameden Law. It shows that at that time Customary Law is equalized as religious law. The point of contact  between the two can also be identified from the theories that develop at that time as in the theory of Receptio in Complexu (Salmon Keyzer and van Den Berg); Receptie Theory (Scouck Hurgronye); Theory of Receptio a Contrario (Ha zairin). The relationship between customary law and Islamic law is widely found in the field of family law that is the issue of marriage law and inheritance law. After Independence, legislation products related to Islamic law include Law no 1 of 1974, Law no 50 of 2009, Law no 21 of 2008 regarding Islamic Banking.Int. J. Soc. Sc. Manage. Vol. 5, Issue-2: 51-59

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