scholarly journals De-Historicizing (Mainstream) Ottoman Historiography on Tanzimat and Tahdith: Jus Gentium and Pax Britannica ViolateOsmanli Sovereignty in Arabia

Histories ◽  
2021 ◽  
Vol 1 (4) ◽  
pp. 218-255
Author(s):  
Khaled Al-Kassimi
Keyword(s):  
International Law ◽  
Cultural Difference ◽  
A Priori ◽  
Legal Reasoning ◽  
Philosophical Theology ◽  
Age Of Reason ◽  
Self Image ◽  
Regulatory Measures ◽  
Secular Humanist ◽  
19Th And 20Th Century

The (secular-humanist) philosophical theology governing (positivist) disciplines such as International Law and International Relations precludes a priori any communicative examination of how the exclusion of Arab-Ottoman jurisprudence is necessary for the ontological coherence of jurisprudent concepts such as society and sovereignty, together with teleological narratives constellating the “Age of Reason” such as modernity and civilization. The exercise of sovereignty by the British Crown—in 19th and 20th century Arabia—consisted of (positivist) legal doctrines comprising “scientific processes” denying Ottoman legal sovereignty, thereby proceeding to “order” societies situated in Dar al-Islam and “detach” Ottoman-Arab subjects from their Ummah. This “rational exercise” of power by the British Crown—mythologizing an unbridgeable epistemological gap between a Latin-European subject as civic and an objectified Ottoman-Arab as despotic—legalized (regulatory) measures referencing ethno/sect-centric paradigms which not only “deported” Ottoman-Arab ijtihad (Eng. legal reasoning and exegetic hermeneutics) from the realm of “international law”, but also rationalized geographic demarcations and demographic alterations across Ottoman-Arab vilayets. Both inter-related disciplines, therefore, affirm an “exclusionary self-image” when dealing with “foreign epistemologies” by transforming “cultural difference” into “legal difference”, thus suing that it is in the protection of jus gentium that “recognized sovereigns” exercise redeeming measures on “Turks”, “Moors”, or “Arabs”. It is precisely the knowledge lost ensuing from such irreflexive “positivist image” that this legal-historical research seeks to deconstruct by moving beyond a myopic analysis claiming Ottoman-Arab ‘Umran (Eng. civilization) as homme malade (i.e., sick man); or that the Caliphate attempted but failed to become reasonable during the 18th and 19th century because it adhered to Arab-Islamic philosophical theology. Therefore, this research commits to deconstructing “mainstream” Ottoman historiography claiming that tanzimat (Eng. reorganization) and tahdith (Eng. modernization) were simply “degenerative periods” affirming the temporal “backwardness” of Ottoman civilization and/or the innate incapacity of its epistemology in furnishing a (modern) civil society.

scholarly journals The Legal Principles of Bethlehem & Operation Timber Sycamore: The “Islamist Winter” Pre-Emptively Targets “Arab Life” by Hiring “Arab Barbarians”

Laws ◽  
2021 ◽  
Vol 10 (3) ◽  
pp. 69
Author(s):  
Khaled Al-Kassimi
Keyword(s):  
International Relations ◽  
International Law ◽  
Philosophical Theology ◽  
Sovereign Power ◽  
Ontological Security ◽  
Legal Principles ◽  
Arab Muslim ◽  
Epistemic Violence ◽  
Cultural Experiences ◽  
Secular Humanist

The following legal-historical research is critical of “Islamist” narratives and their desacralized reverberations claiming that Arab-Muslim receptivity to terror is axiomatic to “cultural experiences” figuring subjects conforming to Arab-Islamic philosophical theology. The critique is founded on deconstructing—while adopting a Third World Approach to International Law (TWAIL)—the (im)moral consequences resulting from such rhetoric interpreting the Arab uprising of 2011 from the early days as certainly metamorphosing into an “Islamist Winter”. This secular-humanist hypostasis reminded critics that International Law and International Relations continues to assert that Latin-European philosophical theology furnishes the exclusive temporal coordinates required to attain “modernity” as telos of history and “civil society” as ethos of governance. In addition, the research highlights that such culturalist assertation—separating between law and morality—tolerates secular logic decriminalizing acts patently violating International Law since essentializing Arab-Muslims as temporally positioned “outside law” provides liberal-secular modernity ontological security. Put differently, “culture talk” affirms that since a secular-humanist imaginary of historical evolution stipulates that it is “inevitable” and “natural” that any “non-secular” Arab protests will unavoidably lead to lawlessness, it therefore becomes imperative to suspiciously approach the “Islamist” narrative of 2011 thus deconstructing the formulation of juridical doctrines (i.e., Bethlehem Legal Principles) decriminalizing acts arising from a principle of pre-emption “moralizing” demographic and geographic alterations (i.e., Operation Timber Sycamore) across Arabia. The research concludes that jus gentium continues to be characterized by a temporal inclusive exclusion with its redemptive ramifications—authorized by sovereign power—catalyzing “epistemic violence” resulting in en-masse exodus and slayed bodies across Arabia.

scholarly journals Illogicality and Roman Law

1972 ◽  
Vol 7 (1) ◽  
pp. 14-24 ◽  
Author(s):  
Alan Watson
Keyword(s):  
South Africa ◽  
International Law ◽  
Western Europe ◽  
Outer Space ◽  
Roman Law ◽  
Modern World ◽  
Legal Systems ◽  
The Moon ◽  
Age Of Reason ◽  
The Law

It is a commonplace that Rome's greatest contribution to the modern world is its law. Whether this is strictly true or not, Roman law is certainly the basis of the law of Western Europe (with the exception of England and Scandinavia), of much of Africa including South Africa, Ethiopia and in general the former colonies of countries in continental Europe, of Quebec and Louisiana, of Japan and Ceylon and so on. Perhaps even more important for the future is that International law is very largely modelled, by analogy, on Roman law. Just think of the perfectly serious arguments of a few years ago as to whether outer space (including the moon and planets) were res nullius or res communes and whether they were, or were not, susceptible of acquisition by occupatio. This persistence of Roman law has had undesirable consequences. First, Roman law as an academic subject has got into the hands of lawyers whose love of technicalities has frightened off classical scholars who tend not to use the legal sources. Secondly, scholars of antiquity, since Roman law is left well alone, have also been reluctant to look at other ancient legal systems. So have lawyers since these other systems have no ‘practical” value. Thirdly, following upon these but worse still, the usefulness of Roman law for later ages, coupled with its enforced isolation from other systems of antiquity, has often led to an exaggerated respect for it, and to its being regarded as well-nigh perfect, immutable, fit for all people. Many in “the Age of Reason” were ready to regard Roman law as “the Law of Reason”.

Foreign act of state and empire

2020 ◽  
Vol 71 (2) ◽  
pp. 135-155
Author(s):  
Courtney Grafton
Keyword(s):  
Seventeenth Century ◽  
International Law ◽  
British Empire ◽  
Legal Reasoning ◽  
Public International Law ◽  
Sovereign Equality ◽  
English Law ◽  
The Relationship

The judicial restraint limb of the foreign act of state doctrine is presented as a time-worn doctrine dating back to the seventeenth century. Its legitimacy is indelibly wedded to its historical roots. This article demonstrates that this view is misguided. It shows that the cases which are said to form the foundation of the judicial restraint limb primarily concern the Crown in the context of the British Empire and are of dubious legal reasoning, resulting in a concept trammelled by the irrelevant and the obfuscating. It has also unnecessarily complicated important questions relating to the relationship between English law and public international law. This article suggests that the judicial restraint limb of the foreign act of state doctrine ought to be understood on the basis of the principle of the sovereign equality of states and conceptualised accordingly.

Normative propositions of the International Tribunal for the Law of the Sea

2021 ◽  
Vol 11 (3) ◽  
pp. 3-18
Author(s):  
Roman Kolodkin
Keyword(s):  
International Law ◽  
Legal Reasoning ◽  
Law Of The Sea ◽  
International Tribunal ◽  
Legal Norms ◽  
Judicial Decisions ◽  
The Law ◽  
Obiter Dictum ◽  
International Law Commission ◽  
Advisory Opinions

Normative propositions of the international courts, including these of the International Tribunal for the Law of the Sea, are considered in the paper as provisions in the judicial decisions and advisory opinions, spelling out, formulating or describing international law norms, prescriptions, prohibitions or authorizations, which are applicable, in the court’s view, in the case at hand and the similar cases. Such a proposition is considered to be a description of a legal norm, its spelling out by a court, but not a norm or its source. In contrast with legal norms, judicial normative propositions are descriptive, not prescriptive; they may be true or wrong. Normative propositions are not transformed into norms solely by their repetition in judicial decisions. The author considers not only ITLOS decisions but also the Tribunal’s and its Seabed disputes chamber advisory opinions containing normative propositions to be subsidiary means for the determination of the rules of law under article 38(1(d)) of the International Court of Justice Statute. The legal reasoning of the Tribunal’s decision, not its operative provisions, usually features normative propositions. While strictly speaking, the decision addresses the parties of the dispute, normative propositions in the reasoning are in fact enacted by the Tribunal urbi et orbi aiming at all relevant actors, ITLOS including. They bear upon substantive and procedural issues, rights and obligations of relevant actors; they may also define legal notions. The Tribunal provides them as part of its reasoning or as obiter dictum. It is those provisions of the Tribunal’s decisions that are of particular importance for international law through detailing treaty- and verbalizing customary rules. However, the States that have the final and decisive say confirming or non-confirming the content and binding nature of the rules spelt out or described by the Tribunal in its normative propositions. Meanwhile, States are not in a hurry to publicly react to the judicial normative propositions, particularly to those of ITLOS, though they refer to them in pleadings or when commenting on the International Law Commission drafts. At times, States concerned argue that international judicial decisions are not binding for third parties. While the States are predominantly silent, ITLOS reiterates, develops and consolidates normative propositions, and they begin to be perceived as law. The paper also points to the possibility of the Tribunal’s normative propositions being not correct and to the role of the judges’ dissenting and separate opinions in identifying such propositions.

scholarly journals The Interaction between International and Domestic Legal Orders: Framing the Debate according to the Post-Modern Condition of International Law

2018 ◽  
Vol 19 (1) ◽  
pp. 1-20
Author(s):  
Arthur Roberto Capella Giannattasio
Keyword(s):  
International Law ◽  
Common Law ◽  
A Priori ◽  
A Posteriori ◽  
Legal Analysis ◽  
Critical Approach ◽  
The Third ◽  
International Authority ◽  
Domestic Law ◽  
Modern Condition

The interaction between international and domestic legal systems underwent a deep structural change. By means of a literature review concerned with a critical approach of International Law, this Article presents three perspectives: Modern, Imperial Post-Modern, and Deconstructive Post-Modern. Traditional international law scholarship emphasizes the first and the second trends, while this Article presents the third. While the first frames these interactions on the monism-dualism debate, the second establishes an international law prevailing unconditionally over domestic law, international human rights. The third criticizes whether it is still proper to search for ana priorisolution for this interaction. By rejecting global governance and the truly common law as alternatives to imperial post-modern international law, this Article emphasizes that legal analysis should identify, stimulate and reinforce thea posterioricustomary normative spontaneity of multitude. This Article argues that a serious post-modern international law should be guided by a radical political drive of law, foster a deconstructive interaction of different—spatial, temporal or thematic—representations of law and reject traditional hierarchical solutions and any kind of previous, single and exclusive—national or international—authority between any legal order.

Normative Hierarchy in International Law

2006 ◽  
Vol 100 (2) ◽  
pp. 291-323 ◽  
Author(s):  
Dinah Shelton
Keyword(s):  
International Law ◽  
Legal Reasoning ◽  
Legal Systems ◽  
Legal Norms ◽  
Equal Status ◽  
Administrative Regulation ◽  
Moral Rules ◽  
Administrative Rules ◽  
Fundamental Values ◽  
Unwritten Law

Systems of law usually establish a hierarchy of norms based on the particular source from which the norms derive. In national legal systems, it is commonplace for the fundamental values of society to be given constitutional status and afforded precedence in the event of a conflict with norms enacted by legislation or adopted by administrative regulation; administrative rules themselves must conform to legislative mandates, while written law usually takes precedence over unwritten law and legal norms prevail over nonlegal (political or moral) rules. Norms of equal status must be balanced and reconciled to the extent possible. The mode of legal reasoning applied in practice is thus naturally hierarchical, establishing relationships and order between normative statements and levels of authority.

The Completeness of International Law and Hamlet's Dilemma

1999 ◽  
Vol 68 (3) ◽  
pp. 225-247 ◽  
Author(s):  
◽  
Keyword(s):  
International Law ◽  
Nuclear Weapons ◽  
A Priori ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Public International Law ◽  
Current State ◽  
Court Of Justice ◽  
International Court ◽  
Self Defence

AbstractThe aim of this paper is to examine whether the possibility of a genuine non liquet is ruled out by a so-called ‘closing rule’underlying public international law. The answer to this question largely determines the relevance of the debate on the legality and legitimacy of the pronouncement of a non liquet by an international court. This debate was recently provoked by the Advisory Opinion of the International Court of Justice on the Legality of the Threat and Use of Nuclear Weapons. In this opinion, the Court held that it could not definitively conclude whether the threat or use of nuclear weapons was contrary to international law in an extreme circumstance of self-defence in which the survival of a state is at stake. Nevertheless, some authors have argued that, since international law contains a closing rule stating that the absence of a prohibition is equivalent to the existence of a permission (or vice versa), the Court had in fact decided the legality of nuclear weapons. By virtue of this closing rule, the pronouncement of a non liquet would be impossible. In our analysis, we have taken issue with this view and claim that there are no a priori reasons for the acceptance of a closing rule underlying international law. It is possible indeed that a legal system is simply indifferent towards a certain type of conduct. Moreover, even if a closing rule would be assumed, this rule would be of no help in determining the legality or illegality of the threat and use of nuclear weapons, since the Court asserted that the current state of international law and the facts at its disposal were insufficient to enable it to reach a definitive conclusion. Nothing follows from this assertion, except the assurance that international law cannot definitively settle the question of the legality of the threat or use of nuclear weapons: to be permitted or not to be permitted, that is still the question. Hamlet's dilemma precisely.

REFLECTIONS OF CUSTOMARY INTERNATIONAL LAW: THE AUTHORITY OF CODIFICATION CONVENTIONS AND ILC DRAFT ARTICLES IN INTERNATIONAL LAW

2014 ◽  
Vol 63 (3) ◽  
pp. 535-567 ◽  
Author(s):  
Fernando Lusa Bordin
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
International Organizations ◽  
Legal Reasoning ◽  
Customary International Law ◽  
Progressive Development ◽  
State Practice ◽  
Political Ideal ◽  
International Law Commission ◽  
International Rule

AbstractCodification conventions and draft articles completed by the International Law Commission are often—and increasingly—invoked by courts, tribunals, governments and international organizations as ‘reflections of customary international law’. This article discusses the factors explaining the authority that these ‘non-legislative codifications’ have come to enjoy in international legal reasoning. Moving beyond the traditional explanations of codification conventions as evidence of State practice and ILC draft articles as the teaching of publicists, it considers how, against the backdrop of the uncertainty of customary international law, institutional factors (relating to authorship, representation and procedure) and textual factors (including prescriptive form and the absence of a distinction between ‘codification’ and ‘progressive development’) converge to convey the image that the resulting texts constitute the most authoritative restatement of the existing law. It then assesses this phenomenon in light of the political ideal of the international rule of law. While non-legislative codifications contribute to enhancing the clarity, consistency and congruence of international law, the fact that they may portray novel rules as reflecting existing law inevitably raises legality concerns.

The Authority of Vattel II

1914 ◽  
Vol 8 (3) ◽  
pp. 375-392 ◽  
Author(s):  
Charles G. Fenwick
Keyword(s):  
International Law ◽  
A Priori ◽  
International Community ◽  
Fundamental Rights ◽  
Good Faith ◽  
Diplomatic Relations ◽  
Moral Conduct ◽  
Concrete Application ◽  
Intrinsic Character ◽  
Technical Rules

In a previous paper the attempt was made to state Vattel's system of municipal and international jurisprudence, and to show in a general way the authority attributed to his treatise on international law. It remains for us to consider the technical rules of international law proposed by Vattel and thus to lay the basis for a critical estimate of the position to which his treatise is entitled among the classics of international law.The rules of conduct which nations have voluntarily adopted for themselves, and which therefore constitute the law between them, may be divided, with regard to their intrinsic character, into two general classes: first, rules which define certain principles of moral conduct or which embody the recognition of certain fundamental rights of states, and secondly, rules which define the concrete application of principles to the practical relations of states. Chief of the rules defining principles of moral conduct is the rule of good faith between nations, which in its many applications pervades the whole field of international law. This rule of good faith is not merely an a priori conception deduced from the analogy between sovereign states as members of an international community and private persons as members of society; it is a rule of positive international law, accepted by nations as properly controlling their conduct, and appealed to by them in their diplomatic relations.

Environmental Principles Across Jurisdictions

2019 ◽  
pp. 650-677
Author(s):  
Eloise Scotford
Keyword(s):  
International Law ◽  
New South ◽  
Environmental Law ◽  
Legal Reasoning ◽  
The European Union ◽  
General Phenomenon ◽  
Public International Law ◽  
South Wales ◽  
Legal Innovation ◽  
Legal Thinking

This chapter examines environmental principles as a general phenomenon in environmental law, with particular emphasis on how they can connect, catalyse, and inspire legal thinking in relation to environmental problems across jurisdictions. It first considers three ways in which environmental principles are developing as legal connectors across legal orders without constituting formal and universal norms of public international law: connection through soft law instruments, connection through judicial dialogue, and connection through legal scholarship. It then explores how environmental principles act as catalysts for legal innovation, offering a basis for new legal reasoning concerning environmental protection, using examples from four jurisdictions: the European Union, India, Brazil, and New South Wales (Australia). It suggests that legal innovations concerning environmental principles are not identical; therefore, the legal functions performed by environmental principles across jurisdictions cannot be understood in simple terms.

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