Islamic Law and International Law

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).

Conclusion

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.

Islamic Law States and Peaceful Resolution of Territorial Disputes

This chapter examines Islamic law states’ decisions to use international conflict management venues in the context of territorial disputes (1945–2012). The dissonance between Islamic law and international law is particularly apparent in the context of territorial claims, because Islamic notions of land ownership and territorial sovereignty are religious in nature. Not all ILS approach international conflict management in the same way. Secular—or rather shared—legal features, such as the presence of a secular court system and constitutional mentions of peaceful resolution of disputes, have the power to attract such ILS to legal approaches—arbitration and adjudication. In contrast, mediation and conciliation are most appealing to those ILS whose legal systems are deeply infused with traditional Islamic precepts. Such states are morally committed to these procedures. In an important way, there is a synergy between norms of traditional Islamic dispute resolution and international non-binding third-party mechanisms.

Introduction

How do Islamic law states prefer to resolve their international disputes? Is it possible to identify general patterns that apply to all these states? Why are only some Islamic law states open to using international courts in attempting to solve their interstate disputes? A common Western attitude toward Islam has often served to create the assumption of a massive dichotomy between the Islamic legal tradition and international law across the entire Islamic milieu, projecting a continuing divergence between the two legal systems. Chapter 1 discusses the importance of understanding the Islamic milieu’s preferences with respect to international conflict management venues. It presents a short version of the Islamic theory of peaceful resolution (fully presented later in chapter 4) and discusses the broader significance of the project, locating it within the broader scholarly literature of interstate dispute resolution.

Islamic Law States and the International Court of Justice

This chapter focuses on the main judicial organ of the United Nations, the International Court of Justice (ICJ), and its relation to the Islamic milieu. It examines the Islamic milieu’s views of the Court’s compulsory and compromissory jurisdictions. The Court has been constructed according to the secular Western legal logic, and its jurisprudence rarely refers to the Islamic legal tradition. The chapter presents an analysis of the ICJ’s jurisprudence—judgments and advisory opinions—and the position of Islamic law-based arguments in the Court. Empirical analyses show that the Islamic milieu does not project a uniform attitude toward the ICJ. Depending on their domestic legal systems, some ILS are likely to accept the jurisdiction of the Court and some shy away from international adjudication. In particular, the presence of a secular court system and constitutional mentions of peaceful resolution of disputes promote a favorable attitude toward the ICJ among its Islamic audience.

International Law, Islamic Law, and Islamic Law States

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.

Legal Schools and Regions

This chapter examines whether geographic location and Islamic schools of jurisprudence matter in how the Islamic milieu views international conflict management methods. The scholarly literature has been treading behind in pondering whether the regional particularities of the Middle East, Asia/Oceania, and Africa or the doctrines of specific Islamic schools of jurisprudence contribute to how the Islamic milieu perceives international conflict management. The empirical analyses (1945–2012) demonstrate that while subscribing to a specific school of Islamic jurisprudence has no bearing on ILS’ preferences with respect to international conflict management, regional differences seem to matter considerably in this regard. While the rise of nation-states has substantially weakened the position of Islamic legal schools on the axis of authority, regional customs and long-standing traditions continue to play a key role in these societies. The Middle Eastern states are more likely than other ILS to attempt mediation and conciliation in territorial disputes.

A Theory of Islamic Peaceful Resolution of Disputes

The theory of Islamic Peaceful Resolution of Disputes discusses four distinct legal features that define Islamic law states’ most preferred form of social interaction: a unique logic of Islamic justice, nonconfrontational dispute settlement (sulh), collective embeddedness of the third party, and incorporation of Islamic religious principles into the resolution process. The chapter describes characteristics of negotiations, international non-binding (conciliation, mediation) and binding methods (arbitration, adjudication). Islamic law states engage in forum shopping because of uncertainty associated with dispute resolution. Their preferences toward international resolution methods are not constant across space and time, but depend on the balance between Islamic law and secular law in their domestic legal systems. ILS whose legal systems are deeply infused with tenets of Islamic law embrace international settlement venues that resemble traditional Islamic law: conciliation and mediation. States whose domestic legal systems embrace secular features are drawn to binding resolution methods: arbitration and adjudication.