Islamic Law and International Law: Peaceful Resolution of Disputes 0190064633, 9780190064631

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Islamic Law and International Law

Islamic Law and International Law Peaceful Resolution of Disputes

EMILIA JUST YNA POWELL

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1 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America. © Oxford University Press 2020 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. CIP data is on file at the Library of Congress ISBN 978–​0–​19–​006463–​1 1 3 5 7 9 8 6 4 2 Printed by Integrated Books International, United States of America

Dla moich córeczek, Scarlett Sophii i Saski Emilii And for Charles

 

CONTENTS

List of Figures  ix List of Tables  xi Acknowledgments  xiii

1. Introduction  1 2. International Law, Islamic Law, and Islamic Law States  25 3. Islamic Law and International Law: Similarities and Differences  86 4. A Theory of Islamic Peaceful Resolution of Disputes  125 5. Islamic Law States and Peaceful Resolution of Territorial Disputes  164 6. Islamic Law States and the International Court of Justice  202 7. Legal Schools and Regions  239 8. Conclusion  272 References  293 Index  311

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LIST OF FIGURES



2.1 2.2 2.3 2.4 2.5 2.6



2.7 2.8 2.9 2.10 2.11 2.12 2.13 2.14 2.15 5.1 5.2

6.1 6.2 7.1

Map of Islamic law states  51 Muslim population in ILS and non-​ILS  51 Sharia/​Islam in ILS’ constitutions  63 Sharia/​Islam in ILS’ constitutions, relative counts, 1945–​2012  64 Holy oath in ILS’ constitutions, 1945–​2012  66 Muslim head of state requirement in ILS’ constitutions, 1945–​2012  67 Supremacy of sharia in ILS’ constitutions, 1945–​2012  68 Islam/​sharia education in ILS’ constitutions, 1945–​2012  70 Customary law in ILS’ constitutions, 1945–​2012  71 Rule of law in ILS’ constitutions, 1945–​2012  73 Supreme Courts in ILS’ constitutions, 1945–​2012  74 ILS with secular courts, 1945–​2012  75 Women in the judiciary, 1945–​2012  76 Peaceful resolution of disputes in ILS’ constitutions, 1945–​2012  77 Education in ILS’ constitutions, 1945–​2012  78 Settlement attempts during the Bahrain-​Qatar dispute  175 ILS’ attempts at peaceful resolution: ILS and non-​ILS addressee, 1945–​2012  182 Islamic law at the International Court of Justice, 1945–​2014: jurisprudence  213 Islamic law at the International Court of Justice, 1945–​2014: summary  213 Islamic schools of jurisprudence: map  243

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L I S T O F   TA B L E S

2.1 5.1a 5.1b

5.2 5.3a 5.3b 5.4

5.5 5.6 5.7 6.1 6.2 6.3 6.4 6.5 6.6 6.7

Presence of Islamic Law and Secular Law/​Shared Features in ILS, 2012  80 ILS’ Peaceful Resolution Proposals in Territorial Disputes, 1945–​2012  168 Non-​ILS’ Peaceful Resolution Proposals in Territorial Disputes, 1945–​2012  169 Peaceful Resolution Attempts by ILS, 1945–​2012  172 ILS’ Attempts at Arbitration and Adjudication, 1945–​2012  181 Non-​ILS’ Attempts at Arbitration and Adjudication, 1945–​2012  181 Descriptive Statistics: Islamic Law and Secular/​Shared Legal Features  184 Multinomial Logistic Regression: Peaceful Resolution of ILS Territorial Disputes  190 Substantive Effects: Peaceful Resolution of ILS Territorial Disputes  191 ILS and Non-​ILS: Peaceful Resolution of Territorial Disputes  200 ILS Cases at the International Court of Justice, 1945–2014  209 Islamic Law at the International Court of Justice, 1945–2014: Details  215 ILS’ Commitments to the International Court of Justice, 1945–​2012  219 Descriptive Statistics: Islamic Law and Secular/​Shared Legal Features  221 Logistic Regression: ICJ Compulsory Jurisdiction, 1945–​2012  223 Negative Binomial Regression: ICJ Compromissory Jurisdiction, 1945–2002  225 Logistic Regression: ICJ Compulsory Jurisdiction, All States, 1945–​2012  234 xi

 

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List of Table s

Negative Binomial Regression: ICJ Compromissory Jurisdiction, All States, 1945–2002  235 7.1 Islamic Schools of Jurisprudence: Distribution  244 7.2 ISL: Regional Distribution  250 7.3 Multinomial Logistic Regression: Peaceful Resolution of ILS’ Territorial Disputes, 1945–​2012, Islamic Schools of Jurisprudence  257 7.4 Substantive Effects: Peaceful Resolution of ILS’ Territorial Disputes, 1945–​2012, Islamic Schools of Jurisprudence  259 7.5 Negative Binomial Regression: ICJ Compromissory Jurisdiction, 1945–2002, Islamic Schools of Jurisprudence  261 7.6 Number of ILS Compromissory Treaties by Madhhab, 1945–2002  263 7.7 Multinomial Logistic Regression: Peaceful Resolution of ILS Territorial Disputes, 1945–​2012, Regions  265 7.8 Substantive Effects: Peaceful Resolution of ILS’ Territorial Disputes, 1945–​2012, Regions  266 7.9 Negative Binomial Regression: ICJ Compromissory Jurisdiction, 1945–2002, Regions  268 7.10 Number of ILS’ Compromissory Treaties by Region, 1945–2002  270

 

ACKNOWLEDGMENTS

I have been thinking about the relationship between the Islamic legal tradition and international law for some time. Many conversations with colleagues, friends, family members, policymakers, and practitioners of Islamic law have deeply influenced my views of the way that the Islamic legal tradition operates. I am in particular most grateful to Charlotte Ku, John Vasquez, Imam Ibrahim Amin, Tom Ginsburg, Daniel Philpott, Krista E. Wiegand, Judge Awn Shawkat Al-​Khasawneh, Elihu Lauterpacht, Adnan Amkhan Bayno, Omar Naas, Talal Al-​Azem, Mohammed Al Qasimi, Omar Rifai, Nawaf Alyaseen, Aida Othman, Hans Corell, Michael Feener, Bob Hefner, Bishop Matthew Hassan Kukah, and Radwan Ziadeh. I  am pleased to gratefully acknowledge Julia Oksasoglu and Robert O’Brien for committing much time and effort to this project as my research assistants. While at Notre Dame, Rob and Julia worked tirelessly to make this project a reality. I also thank Justine Uy, Benedikt Graf, Ilana Rothkopf, and Steven McDowell for excellent research assistance. Les Harris has provided me with invaluable insights into this project and helped me to express my ideas clearly. I am also grateful to David McBride at Oxford University Press for the excellent editorial guidance. Several institutions and organizations have supported this project, including Institute for Scholarship in the Liberal Arts, Kroc Institute for International Peace Studies, Kellogg Institute for International Studies, and Nanovic Institute for European Studies, all at the University of Notre Dame; Oxford Centre for Islamic Studies; and iCourts, the Danish National Research Foundation’s Centre of Excellence for International Courts at the University of Copenhagen. Finally, and above all, this project would not be possible without the continuous support from my family. My husband Charles Wesley Powell has tirelessly supported me throughout this research project. He took care of our two daughters, Scarlett Sophia and Saskia Emilia, when I was conducting research all around the world, often for long periods of time. Thank you for believing in xiii

 

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me, my abilities, and my ideas. My father, Jerzy Szymański traveled with me to the Middle East several times to assist me with conducting in-​depth interviews with policymakers and scholars of the Islamic legal tradition. My mom Elżbieta Milan-​Szymańska’s unceasing enthusiasm for my research and life in general continues to inspire me. My grandmother Zofia Milan has always taught me to learn from others and be open to what others have to say. My dear Parents, thank you, dziękuję, for enthusiastically supporting me all the way through my legal education in Poland. Thank you, dziękuję, for showing me how to learn and how to appreciate knowledge. After all, it is my love for legal traditions that inspired me to appreciate the Islamic legal tradition. My family has taught me to see the world in a certain way, one that has shaped my perception of international law and the Islamic legal tradition. Several of my previous publications laid the groundwork for the theory and empirical analyses in this book. Some parts of ­chapters 4, 5, and 6 were originally developed in Emilia Justyna Powell, “Islamic Law States and Peaceful Resolution of Territorial Disputes,” International Organization, 69, no. 4 (2015): 777–​807; and Emilia Justyna Powell, “Islamic Law States and the International Court of Justice,” Journal of Peace Research, 50, no. 2 (2013): 203–​217.

 

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Introduction

The Importance of Understanding Islamic Law in the Context of International Disputes There are twenty-​nine Islamic law states (ILS) in the world today, and they constitute not only a substantial portion of the United Nations’ membership, but a significant voice in today’s international relations.1 The total Muslim population in these countries is over 900 million. Moreover, almost 700 million Muslims live in the non-​Islamic parts of the world, coming to a total of over 1.6 billion, or nearly a quarter of the earth’s total population.2 To some extent, each adherent to the Muslim faith is ethically, morally, doctrinally, or politically committed to sharia.3 Islamic law constitutes an important part of the domestic legal systems in many of the ILS, displacing secular law in state governance.4 ILS have been and still are engaged in many interstate disputes. A great deal about the Islamic milieu is well known and there has been an upsurge in scholarly interest 1 In this book, I define an Islamic law state as a state with an identifiable substantial segment of its legal system that is charged with obligatory implementation of Islamic law in personal, civil, commercial, or criminal law, and where Muslims constitute at least 50 percent of the population. This definition does not depend solely on the religious preferences of citizens, but rather fundamentally relies on the characteristics of the official legal system upheld by the state. I elaborate extensively on this definition, its constitutive parts, and potential objections that others may have with regard to the ILS category in the Islamic Law States subsection of ­chapter 2. 2 Pew Research Center, Religion & Public Life, April 2, 2015, available at http://​www.pewforum. org/​2015/​04/​02/​religious-​projections-​2010-​2050/​. 3 I am keenly aware that sharia cannot be reduced to a system of laws. In c­ hapter 2, I present the various definitions and meanings of sharia—​as offered by the scholarship. I also elaborate on sharia’s characteristics, constitutive elements, and the relationship between sharia, secular institutions, and Islamic law. In addition, I describe the concept of a domestic legal system and a legal tradition. 4 Hirschl 2010. My book acknowledges a strong debt to Islamic studies, Islamic law, and comparative law scholarly literatures, all of which tackle and map out important aspects of sharia and, more broadly, the Islamic legal tradition (see c­ hapter 2 for more discussion of the relationship between sharia and secular law and governance). Islamic Law and International Law: Peaceful Resolution of Disputes. Emilia Justyna Powell, Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/ 9780190064631 .001.0001

 

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in Islam.5 Yet, what is much less well understood—​especially in the empirical sense—​is how these states view international law and international peaceful resolution venues. Do Islamic law states avoid international courts? Is the Islamic legal tradition ab initio incompatible with international law? More specifically, how can we frame, understand, and define the relationship between the Islamic milieu and international law in the context of peaceful resolution of disputes?6 Historical patterns seem, at first, unhelpful in providing any solid answers in this regard, delivering perhaps little more than underdeveloped spotty hints. In fact, analytically, there seems to be no one easily identifiable attitude shared by all ILS toward the various methods of international conflict management: adjudication, arbitration, mediation, and negotiations. In other words, there is no consistency in how the Islamic milieu tries to solve its contentions. Some disputes over highly salient issues eventually end up at arbitration tribunals or international courts. This was the case in the Pakistan-​India disputes over the Rann of Kutch and Kashmir,7 as well as the Bahrain-​Qatar dispute over the Hawar Islands.8 Apparently, the perceived clash between the Islamic legal tradition and international law does not stop some ILS from submitting their salient feuds to international courts that adjudicate according to Western-​based international law. Yet, other ILS, such as Saudi Arabia, seem to avoid international courts even for interstate disputes of relatively low salience, preferring instead bilateral negotiations and mediation. During a 2013 meeting with the president of the International Court of Justice (ICJ), Saudi Prince Bandar bin Salman bin Mohammed mentioned training courses in Islamic law intended for judges inside and outside the Kingdom offered by the Saudi Custodian of the Two Holy Mosques, should the Court be interested.9 This interaction is a definite indication of Saudi apprehension toward any international court, whose judges either do not understand or choose to pay no attention to sharia. Can we empirically articulate the relationship between ILS and international conflict management venues? Why do some ILS seem friendly toward international courts and others avoid them? Is it possible to identify general patterns that 5 For discussion about conceptualizing Islam, see, among others, Ahmed 2016; Asad 2009; Aydin 2017; Hodgson 1974; Voll 1994. 6 In this book, I will be using the term “Islamic milieu” as a stand-​in for the category of Islamic law states. I purposefully avoid the term “Muslim world,” recognizing its shortcomings and its simplistic and misleading nature (see Aydin 2017). 7 The Indo-​Pakistan Western Boundary Case Tribunal (Award February 19, 1968). 8 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), International Court of Justice Judgment of March 16, 2001. The dispute concerned several other territories including the island of Janan/​Hadd Janan, the shoals of Fasht ad Dibal and Qit’at Jaradah, as well as Zubarah—​a townsite on the northwest coast of Qatar (see Schulte 2004). 9 Taha 2013.

 

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apply to all these states? Interestingly, most Western scholarship does not recognize any variance within the Islamic milieu. Rather, a not uncommon attitude to Islam has often served to create the presentiment of a vast dichotomy between the Islamic legal tradition and international law across the entire Islamic milieu.10 All ILS are not only frequently considered simply Islamic, but also Islamic in the same way, to the same degree. Sharia carries a distinctive understanding of what governance is, where it comes from, and how it should be: according to Muslims, it is God’s perfect will for humanity. Despite its historical connection to the Christian legal thought, modern international law, by contrast, is secular and strives to offer legal solutions that are considered just and optimal within a rational, secularist framework.11 In the literature, blanket claims are made about the attitudes of all ILS toward international law. As an illustration, some argue that the Islamic milieu or some of its constitutive parts—​like the Middle East—​ have emerged as “the underclass of the international system, wherein law is utilized in an instrumental manner.”12 Whereas the West is portrayed as the main supporter of international law, ILS are from time to time depicted as a threat to secularism and legal reason. Western governments, universities, and political and social movements project their own understandings of sharia, as if there is no diversity within the Islamic milieu.13 All ILS are oft perceived as being ipso facto unfriendly toward international law, and, specifically, toward international courts. This expectation of antipathy continues to surface in the scholarly literature on international disputes. Why would any ILS consult international law? The international community—​both scholars and policymakers—​seems surprised any time ILS decide to use international courts or arbitration tribunals in an effort to solve an interstate contention. Indeed, such attempts are at times met with cynical skepticism. Islamic law has been criticized as being irrational and cryptic. Its deeply religious nature is routinely interpreted as being opposed to secular international law. But, as Awn Shawkat Al-​Khasawneh, former vice

10 See, for example, Westbrook 1992–​1993. 11 Frick and Müller 2013. In this book, I recognize that juxtaposing Islamic law and secular law constitutes inherently an oversimplification. There are important aspects of Islamic law that are ipso facto secular (i.e., do not entail much, if any, reference to religious texts or doctrines). For instance, nafaqa, or the husband’s obligation to maintain (support) his wife and children during wedlock and for a period after the dissolution of a marriage (alimony), has arguably a purely secular nature. There are many studies that specifically focus on the process of secularization and the definition of religion as a separate aspect of modern societies and its relation to secular institutions of state governance (see Agrama 2012; Asad 2003; Hussin 2016; Lapidus 1996). I elaborate on the relationship between the secular law and religious law in ­chapters 2 and 3. 12 Allain 2004, xv. 13 For an interesting discussion of this topic, see Bassiouni 2014, 2015.

 

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president of the ICJ and former prime minister of Jordan once told me, “So contrary to the perception, Arabs have been going to the International Court of Justice in various forms.”14 In fact, there actually are a number of international adjudication cases involving states of the Islamic milieu, which is more than can be said for some non-​Islamic states such as China, Russia, Argentina, or Poland. This book introduces variance into the Islamic milieu, because the Islamic legal system does not operate in a binary manner: Islamic or non-​Islamic. Each domestic legal system in the ILS amalgamates secular law with religious law in a different way, and this reality—​I argue—​fundamentally shapes these states’ views of international conflict management.15 Whether Islamic law is compatible with international law and whether this relationship is constant for every one of the ILS is an open question. This book tackles it. Sharia continues to be an authoritative symbol in many ILS. Religious laws and practices are intertwined in state governance, customary law, and other aspects of human life.16 Sharia is woven together with purely secular laws. Islamic non-​state actors, governments, political parties, and scholarly and intellectual leaders—​despite weighty differences among them regarding the interpretation of sharia—​agree that sharia provides a rich legal, anthropological, and cultural background in the Islamic milieu. In fact, the strength of Islam appears to be on the rise. The powerful voice of sharia is particularly apparent in the wake of the recent events of the Arab Spring, when several countries in the Islamic milieu experienced a wave of political protests and turmoil, contesting the overlapping roles of religion, religious authority, and the state.17 As Hallaq argues, “One of the fundamental features of the so-​called modern Islamic resurgence is the call to restore the Sharia, the religious law of Islam.”18 However, providing an authoritative symbol is not the same as being incorporated into a state’s official legal system. Law has the power to formally structure, shape, and dictate a state’s domestic relations. Law has the power to legitimately set the stage for a state’s international behavior. Law is an organizing principle for state governance; a structure that can be remarkably resilient in the face of inside and outside pressures. Law can be a state’s credible commitment to act in a certain way. Law is powerful. Sharia, however interpreted, if 14 Author interview with Judge Awn Shawkat Al-​Khasawneh, conducted in Amman, Jordan, February 20, 2015. 15 See Agrama 2012; Asad 2003; Hussin 2016; Lapidus 1996 for excellent discussions of the relationship between the secular and the religious in the Islamic milieu. 16 Shakman Hurd (2015, 7) proposes that religion, in general, “cannot be singled out from these other aspects of human experience, and yet also cannot simply be identified with these either.” 17 In this context, it is important to emphasize that political Islam as a concept or a movement does not constitute just a simple protest against modern ways of governance with hopes of bringing back the traditional ways of sharia. 18 Hallaq 2005, 1.

 

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implemented as official law, has a different status than sharia as a symbol.19 This book studies this power of domestic law in the context of ILS. Peacefully resolving disputes constitutes an important goal for the international community. In this regard, there is an increasing need for the non-​Islamic states to cooperate with ILS on a wide multitude of issues stretching from trade to questions of conflict and peace. For these intercultural dialogues to be successful, a much deeper understanding of Islamic law—​including its variance and development—​is absolutely crucial. As Bassiouni writes, “For Muslim and non-​Muslim states and individuals to address their contemporary public law obligations and challenges, states must understand Islam’s theological and legal doctrinal evolution.”20 One cannot explain ILS’ behavior without at least a basic comprehension of how secular laws and religious laws amalgamate within domestic legal systems of these states.21 I argue that it is the balance of secular laws with religious laws in the context of ILS that can explain their preferences for international conflict management methods. Of course, one may argue that in all legal systems—​domestic and international—​religion and law are somehow connected, albeit in a very subtle way. In one way or another, religion and moral considerations find a way to trickle into the legal system, at least via providing some foundational values. However, in much of the world, religion or religious principles at best motivate certain laws, principles, legal language, or the state’s vision of the legal system.22 That is certainly true for international law. International law has evolved from its religious origins to a largely secular legal system. In contrast, the connection between religion and law is hardly subtle in traditional sharia: law is centered on religion, religious texts, and doctrines. Governments across the Islamic milieu deal differently with this reality by allowing various ways of amalgamating secular laws with religious laws, and this, I argue, has important consequences for ILS’ attitudes toward international conflict management.23

19 There is a vast debate in the scholarly literature that addresses the issue of whether any aspects of sharia can be included in state governance (see “Broader Significance of This Project” section that follows for more discussion). 20 Bassiouni 2014, 25. 21 The secular-​religious dichotomy is problematic in conceptualizing Islam (see Agrama 2012; Ahmed 2016; Asad 2003; Aydin 2017; Hussin 2016; Lapidus 1996; Siddique 1981). I elaborate on this point in ­chapters 2, 3, and 4. 22 There is an extensive literature on the historical interaction between political and religious authority in the Islamic milieu (see Eickleman and Piscatori 1996). As Shakman Hurd (2015, 6) notes, “religion is too unstable a category to be treated as an isolable entity, whether the objective is to attempt to separate religion from law and politics or design a political response to ‘it.’ ” 23 As Otto (2010b, 27) notes, “the modalities of incorporation” differ substantially across time and space in the Islamic milieu.

 

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This book proposes that important insights are lost when we look at ILS’ international behavior as detached from their domestic legal systems. Searching beneath materialistic considerations such as power and strategy ensures that other factors do not fall by the wayside. To this end, this work focuses on discovering the key areas of conflict and convergence between Islamic law and international law within the context of each of the ILS, both historically, over time, and geographically, across the Islamic milieu. I identify institutional features of Islamic law that facilitate the ILS’ openness to international law and international courts. It should be stressed at the outset that this work is principally about international law and how it is perceived via the lens of the Islamic legal tradition. The intent of the book is a constructive one. I make the case that the Islamic legal tradition is not ab initio, across the board, in fundamental contradiction with international law. Too often, the scholarship and the policy world have created an artificial division between these two legal systems. Quite the opposite is in fact true: these two inherently dynamic and ever-​evolving legal systems share more similarities than they are given credit for by the policy world and by many scholars. This key point, which carries crucial policy ramifications, might be rather surprising news to some. This research has indispensable implications for scholars and practitioners of international law, judges of international courts, and people working for nongovernmental organizations that promote peaceful conflict management. At the most rudimentary level, this book underlines how important it is to incorporate non-​Western—​in the context of this book, Islamic—​understandings of law and justice and modes of legal thinking into international resolution venues. International law is indeed inherently a comparative enterprise, whereby different legal cultures and traditions see international law differently. The need of expanding international law’s “plurality,” that is, of accepting how various legal traditions interpret international law, has the potential to bring about a more justifiable and legitimate global order.24 The world encompasses countries that espouse divergent understandings of what law is and how it is to be executed on the domestic as well as international arena. International law’s authority can expand if the law itself and its interpretation and practice are increasingly informed by domestic legal systems. The Islamic legal tradition is up to the challenge. In the words of Abou El Fadl, “the Islamic tradition is rich and complex enough to offer flexible paradigms that could be utilized to address the challenges posed to Islam by the modern age.”25 Several of my interviewees described sharia or Islam in a similar way. According to Nawaf Alyaseen, “Islamic sharia rules are very flexible and there is a very large space



See Roberts 2017. Abou El Fadl 2003a, 179.

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to move. It gives us general rules with general meaning: we should be honest, we should be fair, we should not take other people’s property or harm them. In other words, it gives us some details but not in all issues.”26 Omar Naas stated that “Islam is a way of life. It is not just rules ‘do this, do not do this.’ No. You can do anything if it is good for the people.”27 States within the Islamic milieu, like other states, are to an important extent subject to social mechanisms that promote compliance with widely accepted norms of behavior. ILS largely conform to Western-​inspired, classical international law. These are the rules of the game. ILS strategize; they also mimic certain practices of non-​ILS to maximize their participation in global politics.28 At times, ILS may use Islamic law in a strategic way to protect state institutions from criticism. The point is that international rules constitute the existing community standards, and ILS must—​to an extent—​abide by rules of international law. It is thus not the case that ILS are so peculiar as to be immune from all the other streams of influence that shape the actions of states. Yet the standards set forth in international law, as well as considerations of power and strategy, are not always able to override Islamic norms and values that are deeply embedded in ILS. International law’s power of persuasion has limits in the Islamic milieu. Simply put, ILS are less motivated than other states to indiscriminately accept the legitimacy of international law across the board. In a way, certain concepts stemming from the Islamic legal tradition continue to be salient in ILS’ global dealings.29 ILS exist in a world with two normative frameworks: that of international law and that of Islamic law. These states are to an important extent unique in their embeddedness in an additional normative system, that of the Islamic legal tradition, and this is what this book is about.

A Theory of Islamic Peaceful Resolution of Disputes How ILS view international conflict management methods is at the core of this study. This book introduces nuance into any blanket claim about the relationship between the Islamic milieu and international law and its institutions. This relationship is context specific: it hinges fundamentally on the domestic legal 26 Author interview with Dr.  Nawaf Alyaseen, a Kuwaiti legal practitioner, Future Law Firm; Legal Consultants, Arbitrators and Mediators, Kuwait City, Kuwait, December 13, 2017. 27 Author interview with Omar Naas, member of Libya’s Constitutional Drafting Assembly, Kuwait City, Kuwait, December 11, 2017. 28 See Goodman and Jinks 2013. 29 See Fadel 2010 for more discussion.

 

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system of each of the ILS. Different international conflict management methods appeal to different ILS, depending on each one’s domestic legal system. I argue that the answer to the “sharia-​international law nexus puzzle” lies in the diversity of how secular laws and religious laws fuse in domestic legal systems across the Islamic milieu. In other words, all ILS are not Islamic to the same degree or in the same way. Traditional Islam itself dictates a uniform attitude toward international law. What varies is the extent to which Islamic law is commingled with secular institutions within a domestic legal system. In an important way, the Islamic law/​secular law balance as articulated in a domestic legal system provides an institutional space that interacts with international law and its institutions.

The Diversity Each of the ILS embraces a unique relationship between secular laws and religious laws in its governance.30 Some states officially rely on, incorporate, and implement Islamic law—​however interpreted—​to a much higher degree than others.31 As noted earlier, sharia provides a powerful symbol in some of these states and gets implemented in a fragment of the domestic legal system, while in other states, the principles of sharia regulate extensive parts of domestic law, playing a formative role in most of state governance.32 For instance, Saudi Arabia claims to follow the ancient sharia in its purest form. The Saudi 1992 Basic Law of Governance declares that “Almighty God’s Book, The Holy Qur’an, and the Sunna” are its constitution.33 In Iran, the Guardian Council consisting of Muslim jurists is the most powerful body in the country, and it has the power

30 There is also a considerable doctrinal difference within the ILS category, and the Islamic schools of jurisprudence constitute an important part of the legal landscape within the Islamic legal tradition. The Shii schools include Jafari, Ismailis, and Zaidis, and the Sunni schools are Hanafi, Maliki, Shafii, and Hanbali (see Hallaq 2005). There is also the school of law adhered to by the followers of the Ibadi sect. The strand of Ibadi Islam predates the Shia and Sunni sects, but has a limited reach in the Islamic milieu. Various ILS represent different schools of jurisprudence. For instance, Saudi Arabia embraces the Sunni Hanbali school, Oman the Ibadi, Iran the Jafari, Morocco the Maliki, and Malaysia the Shafii. I consider the doctrinal divergence within the ILS category in c­ hapter 7. 31 As an illustration, as of 2012, the constitutions of Indonesia, Algeria, and Morocco do not even mention Islamic law, while those of Iraq, Iran, and Egypt all do. I  address this variation in much greater detail in ­chapter  2. For an interesting review of the relation between state and religion in Islamic societies, see Lapidus 1996. Lapidus argues that “there is a notable differentiation of state and religious institutions in Islamic societies” (p. 4). For more insights into the concept of the secular, see Agrama 2012; Ahmed 2016; Asad 2003; Aydin 2017; and Shakman Hurd 2015. 32 The feasibility of including principles of sharia as a part or the basis of modern-​day state institutions is debated among laymen, policymakers, and scholars alike. For more discussion, see Ahmed 2016; Hallaq 2013; and Platteau 2017. I address this issue in ­chapters 2 and 3. 33 The Basic Law of Governance of the Kingdom of Saudi Arabia, March 1, 1992.

 

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to approve or veto bills passed by the legislature on the grounds of consistency or inconsistency with Islamic principles. At the other end of the spectrum is Malaysia, where the provinces determine how much Islamic law gets incorporated into official local laws. Thus there is not one Islamic law, but many “Islamic laws”—​depending on how it is interpreted and amalgamated into a particular domestic legal system within the ILS. Sharia has remade and reconfigured itself over time as well as throughout the Islamic milieu. My view of Islamic law as a living legal system, one that can be—​to an extent—​incorporated into modern structures of state governance, sets this book apart from a view of Islamic law as an unchanging legal tradition, one that has been calcified in sacred texts and traditions.34 I believe that in order to appreciate and understand the modern-​day Islamic legal tradition, it is crucial to perceive it in the context of contemporary societies and their lived experiences. The effects of colonization and the rise of nation-​states were in many ways shattering for the tradition of Islamic law. Nevertheless, elements of Islamic law appear in modern structures of state governance and thus continue to play an influential role in shaping and reflecting the preferences and behavior of modern states, societies, and communities. Islamic law—​however interpreted—​provides the lens through which ILS see international dispute settlement. I recognize that sharia is much more than a system of laws. This book attempts to measure the presence of Islamic law in officially recognized state law; these efforts should not be taken as equating sharia merely with a system of laws. Most importantly, I fully recognize that sharia of the past is different from sharia of the present. I  conceptualize the Islamic legal tradition as an ongoing, constantly evolving entity. This continuous evolution is reflected in the domestic legal system of ILS on the constitutional as well as sub-​constitutional levels. Thus, in trying to understand what sharia is—​or perhaps what it is not—​it is vital not only to examine Islam’s foundational sources and pre-​modern jurisprudence, but also to make allowance for change. Put differently, the contemporary study of Islam’s foundational sources should be cognizant of the various societal milieus and practices that have historically developed in various places that the Islamic legal tradition is lived.35 There exists one Islamic legal tradition, but it gets expressed quite differently across states of the Islamic milieu. The ways in which Muslims understand Islamic law, Islamic justice, morality, and ethics have always been diverse. As Abou El Fadl writes, “there is considerable flexibility and variation in how Shari’ah is implemented from one culture to the next, from one country to the next—​indeed, from one generation to the next.”36 Societal

See Hefner 2016; Hussin 2016. See Hefner 2016. 36 Abou El Fadl 2003a, 201. 34 35

 

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engagements with Islam’s textual sources and jurisprudence are to a significant degree reflected in ILS’ domestic legal systems. Collectively, these engagements reflect what the Islamic legal tradition is now. The ILS category, fundamentally embracing this view as it does, allows me to step away from an idealized understanding of how text works, and instead provides a useful comparative space to articulate the considerable degree of legal and institutional divergence across all these states.37 I rely on the ILS category, recognizing the imperfect relationship between the societal belief and practice of sharia and the written letter of the law but maintaining that a greater investment in Islamic law’s presence in a country’s legal system is a signal of a commitment to a specific identity. Although this project deals with Islamic law, it is first and foremost a study on the workings of modern international law in the area of peaceful resolution of disputes. Taking the diversity of Islamic law into consideration, this project tackles the following research questions: Does the balance between secular law and Islamic law in ILS’ domestic laws influence these states’ preferences toward specific peaceful resolution venues? What factors can explain that some ILS choose resolution methods that heavily rely on international law, such as international courts and arbitration tribunals? Why, on the other hand, are some ILS drawn to non-​binding third-​party methods, such as mediation or conciliation? In a more policy-​oriented way, I consider whether we should pay sustained attention to the differences between Islamic law and international law as having the power to pull the Islamic milieu away from international law and its institutions, or whether these differences can be mitigated. The main claim of the book is that in many instances Islamic law points in one direction and Western-​based, secularized international law points in another direction. Yet this conflict is partially softened by the reality that Islamic law itself has elements fundamentally compatible with international law.

The Argument in Short There is a variety of conflict management mechanisms available to states, and all states, ILS and non-​ILS, are uncertain when choosing a forum to resolve their disputes. In hopes of reducing uncertainty, states look for clues that help them form expectations about the settlement outcome. Uncertainty peaks when a dispute is delegated to a third party, especially to an international court or an arbitration tribunal. Whereas non-​legal resolution options do not have to rely on international law, adjudication and arbitration produce binding decisions based

37 Hamoudi (2010b) discusses the presence of sharia in modern ILS’ governance, emphasizing legal “selectivity of state processes in giving voice to shari‛a” (p. 300).

 

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on law. But in no case can a state be absolutely certain about such a decision.38 Law is subject to interpretation, and many factors complicate the parties’ ability to forecast the court’s or the tribunal’s legal reasoning. Judges who sit on international courts often come from different legal backgrounds, and litigants cannot be sure which set of principles will provide the basis for the judgment. It is also unclear if a domestic legal system or systems will guide the court in interpreting general principles of international law. All states encounter these hurdles.39 Faced with uncertainty and at the same time driven to win cases, states engage in strategic behavior when seeking out a resolution venue. States forum shop. The goal is to carefully select a forum that will not only yield the most-​preferred outcome for a disputant, but also reduce uneasiness associated with the resolution process itself. The domestic legal system provides a state with clues about what international resolution forum to choose. Similarity between a disputant’s domestic legal system and a forum’s institutional design increases predictability of an outcome.40 The Western-​based legal design of international settlement venues elevates ILS’ uncertainty associated with settling disputes. For the most part, ILS have not participated in the creation of international law and its institutions. Thus, these states had no chance to embed elements of Islamic law into international conflict management venues. Consequently, issues of uncertainty play a role in how ILS choose among available forums. There is no automatic international equivalent for sharia-​based domestic conflict management. The Islamic legal tradition embraces a specific approach to conflict management, a distinct logic of social interaction in dispute resolution. This logic fundamentally shapes the Islamic milieu’s venue choices in the international arena. Sharia-​led social interaction—​in the domestic or international sphere—​is characterized by four distinct features:  a unique logic of justice, nonconfrontational dispute settlement, collective embeddedness of the third party, and incorporation of Islamic principles in the resolution process. In place of Western formal approaches to conflict resolution, traditional Islamic law uses reconciliation, apology, and constructive dialogue between disputants. Islamic jurisprudence teaches that amicable informal settlement without resort to formal venues such as courts constitutes a righteous and morally superior method of seeking justice.41 This traditional Islamic logic of conflict management delimits venue options for ILS, at the same time heightening the degree of uncertainty they face in dispute settlement.

Bilder 1981. See Powell 2013a, 2016; Powell and Wiegand 2010 and 2014; and Wiegand and Powell 2011. 40 Mitchell and Powell 2007 and 2011; Powell 2018b. 41 Othman 2007. 38 39

 

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But the presence of sharia-​inspired features of conflict management on the international level is not equally important to all ILS. I theorize that ILS whose domestic legal systems are highly infused with a version of sharia will most firmly adhere to Islamic law–​inspired elements in the international arena. This expectation holds for substantive law as well as procedural law. International non-​binding third-​party venues such as mediation and conciliation are procedurally similar to sharia-​based dispute resolution. Via these methods, Islamic law can potentially constitute the basis for settlement if so desired by the parties. Thus, ILS most committed to the Islamic legal tradition domestically are naturally attracted to mediation and conciliation.42 This subset of ILS can fulfill its preferences regarding the nature of social interaction by engaging in a brotherly solution approach to settlement and by incorporating principles of sharia in dispute resolution.43 International legal mechanisms, courts and arbitration tribunals, are unlikely to bring to bear these expectations of ILS about how dispute settlement should be carried out. These legal means of settling disputes yield binding decisions and are firmly anchored in international law that is largely based on the Western legal logic. For ILS whose domestic legal systems incorporate strong secular laws, by contrast, these legal mechanisms constitute acceptable settlement venues. Secular laws embedded in these ILS’ domestic laws form a natural bridge with international courts and arbitration tribunals. The central point is this: there are no general patterns that define the Islamic milieu’s choices of international conflict management venues. Different ILS are attracted to different international forums. The balance between Islamic laws and secular laws within ILS’ domestic legal systems predisposes some of these states to specific international conflict management venues.

Broader Significance of the Project To my knowledge, this is the first book in the English language to investigate empirically whether similarities and differences between Islamic and international law matter in shaping ILS’ attitudes toward international conflict management venues. In the international relations scholarship, there is a daunting lack of empirical studies focusing specifically on the Islamic milieu’s view of conflict management venues. There are important works in the law and Islamic studies literatures, but most describe Islamic law in the context of its origins, historical 42 I am keenly aware that a heightened presence of Islamic principles in a state’s constitution or its sub-​constitutional legal system does not automatically indicate compliance with sharia across all aspects of governance. See ­chapter 4 for more discussion of this important issue. 43 See Powell 2015 and 2016.

 

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development, substantive as well as procedural rules, and specific countries.44 Furthermore, traditionally, much of this literature has been primarily descriptive, providing insights into the theory and practice of sharia in the domestic and international realms. While the law literature—​both comparative and international—​has produced scholarship that is rich, enlightening, and theoretically innovative, as well as useful in explaining the details of Islamic law by going beyond the analysis of contracts, obligations, and constitutional and criminal law, it has not engaged in much systematic empirical analysis.45 In a way, empirical study of these states’ international relations is usually considered to fall outside of the law’s purview. Granted, there are several pivotal works that tackle Islamic international law, and hence address the issue of international relations, international peaceful resolution of disputes, international treaties, Islamic maritime law, humanitarian law, and so on. Again, however, the approach taken is, in a majority of cases, descriptive and normative, providing a wealth of description of the dynamics and spirit of Islamic law.46 Intensive case studies on individual ILS abound. What is missing are the questions of how and why. The theme of this book is how the variance in Islamic law’s presence in ILS’ domestic legal systems affects these states’ views of international conflict management venues. Thus, this book is not purely about law—​international law or Islamic law—​in a constricted, narrow sense. I am interested in law as a vehicle and as an expression for ILS’ preferences. The international law scholarship has also been prolific in producing literature on peaceful settlement of international disputes in general and on specific international settlement venues, including the ICJ; its predecessor, the Permanent Court of International Justice (PCIJ); the World Trade Organization dispute settlement; and international mediation.47 Most writings on the structure and practice of these institutions are similar in nature and provide detailed accounts and explanations of procedural rules and, where appropriate, the substance of international law. Yet, there is a gap between the general international dispute settlement literature and the scholarship on Islamic law. To be sure, there is a fair amount of work that addresses the Islam–​international law nexus in the context

44 Hallaq 2005, 2009b; Mallat 2007; Otto 2010a; Sadeghi 2013; Schacht 1964; Vikør 2005; Weiss 2006. Additionally, there are illuminating works in the comparative constitutional law literature that in detail analyze and ponder constitutional politics, history, and legal structures present in the Islamic milieu. See Brown 2002; Feldman 2008; and Hirschl 2010. 45 Mallat (2007) chooses to use the term “Middle Eastern Law.” 46 See Baderin 2008; Bsoul 2008; Foda 1957; Frick and Müller 2013; Hashmi 2002a, 2002b; Kelsay 2007; Weeramantry 1988; Yazbeck Haddad and Freyer Stowasser 2004. 47 Aljaghoub 2006; Brown 1997; Collier and Lowe 1999; Klein 2014; Merrills 2017; Shaffer and Meléndez-​Ortiz 2014; Spiermann 2005.

 

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of international courts and other venues for peaceful settlement.48 Again, although informative, most of these studies descriptively tackle the relation between specific rules of Islamic law and international law, without taking up the question of the underlying logic, mechanisms, causal explanation, and empirical investigation. I should like to emphasize that there are a handful of studies attempting to quantify certain aspects of Islamic law in the context of peaceful resolution of disputes, such as quantifying sharia’s presence in the jurisprudence of the ICJ.49 Yet, much more empirical work, especially of a quantitative nature, has been done in other substantive areas of international law, primarily with regard to human rights law and constitutional law.50 The issue of ILS’ views of international conflict management venues has largely remained uncharted by empirical investigation. In fact, very few books within the Western international relations scholarship mention Islamic international law, let  alone acknowledge it as a factor important to the Muslim world. Additionally, as Glenn posits, “Everybody outside of islam has heard bits and pieces of islamic law. They are usually rather spectacular bits and pieces, viewed from another tradition.”51 This observation is certainly true for Islamic law as a whole, but even more so for Islamic international law. As a result, and with the descriptive/​normative approach leading the discourse, a gap has opened between the scholarly portrayal of Islamic law and its application in the international arena.52 Furthermore, no study takes into consideration important differences that exist within the Islamic legal family, such as the balance between religious laws and secular laws in each of the ILS. The Islamic legal system does not operate in a binary manner: Islamic or non-​Islamic. It is, therefore, problematic to capture the presence of sharia in domestic laws via a dichotomous variable. A depiction of any legal system in a categorical way certainly has its merits, but such an approach breaks down specifically in the case of ILS. Numerous legal details and nuances beg attention if one is to paint a complete picture of how Islamic law operates in the domestic context of each of the ILS. One cannot attempt to understand ILS’ preferences toward international conflict management without

48 Brower and Sharpe 2003; Cravens 1998; Khaliq 2013. 49 Most notably, see Lombardi 2007. 50 Ahmed and Ginsburg 2014; Kalanges 2012. For an excellent data collection on constitutions, see the Comparative Constitutions Project [website], at http://​comparativeconstitutionsproject. org/​. 51 Glenn 2014, 190. 52 See, however, Hassner (2007) who reminds us that the knowledge of Islamic legal thought is important in formulating policies and political doctrines with regard to the Muslim milieu (see also Hassner 2016, 2009).

 

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taking a deep plunge into the many applications of sharia in the specific local settings of each of the ILS. Modern discussions regarding the specific character of Islamic law prompt questions about the nexus of religious law and secular law. The more we comprehend and appreciate this practical variation, the better we are able to examine the relationship between ILS and international law, especially in the context of conflict management. To reflect on these issues in an empirical way, the research presented here is based on original data on the characteristics of the legal structures in thirty Islamic law states (1945–​2012). These characteristics, or variables, capture the degree of interconnectivity between religious and secular law. To my knowledge, this is the first dataset that contains this important information and goes beyond coding constitutional features.53 The legal system as a whole—​including constitutions and what lies beyond constitutions—​ may either constrain or sustain sharia’s de facto role. It is the amalgamation of constitutions and laws of lower status that fundamentally defines a domestic legal system in ILS. My data capture not only the cross-​sectional variation within the ILS category, but also patterns of change over time.54 Most importantly, my effort to describe Islamic law in a quantitative way allows me to link features of sharia to specific international conflict management venues. Data on ILS’ domestic legal systems required coding information from 172 constitutions and major constitutional amendments. Quantification of Islamic law’s presence beyond constitutions was far more challenging and required an in-​depth examination of legal practices and institutions across space and time in thirty ILS. Undoubtedly, there are limits to the information that such data can provide.55 But these data reveal some interesting patterns that slip through the cracks of a purely qualitative case-​studies approach. As Simmons notes, “To quantify is hardly to trivialize; rather, it is an effort to document the pervasiveness and seriousness of practices under examination.”56 However, rather than relying solely on abstract knowledge and statistical data, my theoretical argument, as well as empirical implications of the book, are embedded in in-​depth qualitative interviews with Islamic law scholars and practitioners of international law, including judges of the ICJ, States’ Legal Counsels in the ICJ and international arbitration tribunals, the Legal Advisor of the United Nations, and several policymakers and religious leaders performing various functions in ILS and non-​ILS. These interviews greatly enrich the qualitative aspect of the book 53 See, for example, Ahmed and Ginsburg 2014; Ahmed and Gouda 2015. 54 See Varol 2016 for an excellent discussion of patterns of change in constitutions over time. See also Elkins, Ginsburg, and Melton 2009. 55 See ­chapter 8 for an in-​depth discussion of this issue. 56 Simmons 2009, 11.

 

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and allow me to examine causal factors and mechanisms shaping ILS’ attitudes toward international conflict management venues. In-​depth conversations with people who practice or write about Islamic law and international law are the backbone of my theory. This is also true for the book’s empirical chapters—­​ ­chapters 5, 6, and 7—​where references to these conversations make the theory and statistical results less abstract. Insights from interviews allow me to observe the broader influences of sharia on the Islamic milieu’s view of international law, beyond specific cases, issues, and disputes. References to real disputes involving ILS are the a priori mainstay of this book. I  believe that the nexus of Islamic law and international law must be explored scientifically in a dynamic way, one that presents both these legal systems as uniquely rich and vibrant, and as dynamic systems that have changed over time and will continue to evolve. To this end, the incorporation of both quantitative and qualitative methods of scientific inquiry provides a means to understand the strategic interaction between domestic and international legal institutions. Such a multi-​method approach is ideal since “social science research should be both general and specific: it should tell us something about classes of events as well as about specific events at particular places.”57 I am able to test hypotheses flowing from my theoretical expectations in a rigorous scientific manner, applying statistical techniques to large datasets, at the same time controlling for a host of confounding factors. The qualitative in-​depth interviews, by contrast, allow me to see the general statistical patterns in the context of specific ILS and specific social environments.58 My hope is that by using quantitative data alongside qualitative examples of causal factors, I will encourage at least some audiences to take this book’s findings into consideration when writing about the Islamic milieu’s attitudes toward international law. This book fills the lacunae of the literature by, first of all, going beyond historical and normative description and moving toward developing a generalizable theory. In building my argument, I draw on an amalgamation of my own primary research: novel data on ILS’ domestic legal systems and qualitative interviews, as well as secondary sources spanning various scholarly disciplines: political science, international law, comparative law, and Islamic studies literatures. More specifically, within political science, I build upon the international relations scholarship that illuminates the role of domestic institutions in affecting the design/​effectiveness of international settlement venues59 and the literature on institutional

57 King, Keohnane, and Verba 1994, 43. 58 See Shaffer and Ginsburg 2012, 3–​4. 59 Alter 2014; Alter and Helfer 2017; Helfer, Alter, and Guerzovich 2009; Mitchell and Powell 2011.

 

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design.60 My book also advances international relations and international law literatures that elaborate on how international law works in different contexts and different substantive issue areas.61 Because I  embrace the empirical approach to international and comparative law, this research furthers the “empirical turn in international legal scholarship” in the effort to scientifically assess the nexus between ILS and conflict management venues.62 Rather than bemoaning the theoretical discrepancies between international and Islamic law, I investigate causal factors and ask whether and under what conditions specific ILS use international peaceful resolution venues. I introduce a theory that constitutes a theoretical leap forward in the study of the Islamic milieu. The theory is broad enough to explain ILS’ views of all conflict management venues, including bilateral negotiations and non-​binding as well as binding third-​party methods. It offers new lines of sight into ILS’ specific preferences for nonconfrontational dispute settlement that diverge from the Western-​based espousal of litigation. Our knowledge of the Islamic milieu is increased as a result of thinking differently about the ILS category and disaggregating it across space and time. My goal is not, however, to present a grand meta-​theory, but a midrange theory about conditions under which international law “has effects in different contexts, aiming to explain variation.”63 My context, of course, is the ILS category. In doing so, I believe that in developing such a theory, one cannot separate law from political considerations, especially when trying to inquire into the reasons standing behind countries’ actions in the international arena. Thus, throughout the book, I weave together insights from academic scholarship as well as the policy world to illuminate theoretical as well as more practical dimensions of interstate conflict management. This research as a whole is in no way a conclusive statement on this topic. Though my theory captures important aspects of the behavior of ILS, many dynamics remain unexplored. Indeed, the intricate relationship between law, religion, and politics in the Islamic milieu—​ and its effect on these states’ international behavior—​requires further theoretical development. Furthermore, no contribution is without shortcomings and limitations. More data on Islamic domestic legal institutions would perhaps support more comprehensive empirical models of ILS’ preferences. The theory and statistical results could be further enriched by additional interviews. Nonetheless, I believe this study constitutes a meaningful primary step to understanding the Islamic milieu’s view of international conflict management. 60 Abbott and Snidal 1998; Goldstein et al. 2001; Koremenos 2016; Koremenos, Lipson, and Snidal 2001. 61 Diehl and Ku 2010; Huth, Croco, and Appel 2013; Simmons 2009. 62 Shaffer and Ginsburg 2012. 63 Shaffer and Ginsburg 2012, 1.

 

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What This Book Is and Is Not Meant to Be It is crucial to be clear about what this book is not meant to provide or to be. This book is situated in the political science and international law literatures. Most importantly, my intention is not to say all that is important about the Islamic legal tradition or international law, nor to engage with every argument presented recently in the international law, international relations, comparative constitutional law, and Islamic studies disciplines. This book does not aspire to be a textbook on Islamic law. Neither is this book meant to be a detailed historical account of changes in Islamic law or Islamic jurisprudence. There are many scholarly works devoted to the Islamic logic of lawmaking, jurisprudence, and methodology.64 I purposefully avoid focusing on specific contentious issues or concepts that might come under fire across these disciplines. The number of examples is virtually limitless, including definitions of the terms “sharia,” “Islam,” “Islamic,” “Islamic law,” and “secularism,” the division between secular law and religious law, and the core question of how meaningful it is to talk about Islamic law’s presence in modern state governance.65 In each of the scholarly disciplines that contribute to this book’s genuinely interdisciplinary content, these topics are contested. I deeply acknowledge a strong debt to the literature that addresses these seminal matters, and thus, throughout the book I  refer to the existing contentions, while leaving to other scholars the arduous task of providing or questioning definitions. The precise focus of this study is the Islamic milieu’s preferences with respect to international conflict management venues. Thus, the workings of international law and how it juxtaposes against the workings of Islamic law remain at the core of this study. I examine “law on the books” in various ILS and translate it to “law in action” in the international arena. Hence my goal is to empirically tackle specific scientific objectives as expressed in my overarching research questions. My main goal in writing this book is to challenge some long-​standing assumptions about the relationship between international law and the Islamic legal tradition. Again, let me stress that this work is principally about international law—​and how it is perceived through the lens of the Islamic legal tradition, especially in the context of peaceful resolution of disputes. In practical terms, I  hope to assist the international law community—​both scholars and policymakers—​in acquiring an understanding of how the various countries within the Islamic milieu interpret and view international law and its dispute

64 Throughout this book, I refer to major works on Islamic law. 65 I elaborate at length on this important issue in c­ hapter 2, particularly in the context of my discussion of the category of Islamic law states.

 

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resolution venues. Thus I assess the potential of a fruitful, constructive interaction between the Islamic legal tradition and the international legal tradition. In an effort to provide a theoretically based and empirically sound assessment of this relationship, I in no way intend to make a major contribution to the study of Islamic law. Yet, because of the focus of this book, there is no alternative but to share with the reader some important details about the Islamic legal tradition. Consequently, I identify key characteristics of the Islamic legal tradition, based mainly on extensive secondary research and in-​depth interviews with Islamic scholars and policymakers. As a social scientist, I believe that I have gathered enough data of sufficient quality to draw empirically based conclusions to inform the reader how different ILS behave with respect to international dispute resolution venues. Because of the inherent richness, uniqueness, and internal diversity of the Islamic legal tradition, it is absolutely indispensable to delve into some of the many particularities—​both substantive and procedural—​of Islamic law. This necessitates a careful, detail-​oriented presentation of my argument, which may be somewhat challenging for readers with a background in international law who are unfamiliar with the Islamic legal tradition. For readers with a background in Islamic studies, it is important to keep in mind that this book does not fit squarely in the Islamic-​studies literature. Notwithstanding its contributions to this literature, this study is intended to add insights principally to the scholarship on international law, in particular the emerging study of comparative international law.66 Indeed, understanding how different countries and—​more broadly—​different domestic legal traditions interpret and conceive of international law is a scholarly effort worth pursuing. After all, in so many ways, international law is understood via the lens of those who use it. In the context of this book, the Islamic legal tradition provides the lens. My research does not directly engage the primary sources of Islam. Instead, my methodology is truly interdisciplinary and combines the use of secondary sources, quantitative analysis, and in-​depth qualitative interviews to confirm and contextualize my theory and findings. Taken together, my original research, conversations, interviews, and a comprehensive variety of secondary literatures enlighten and alter each other. Particularistic perspectives, lacunas, and misperceptions are abated by continuous dialogue between these different methods of scientific inquiry. It has been my most important goal to go beyond the biases of the authors I cite—​a challenging goal—​particularly because of the contested topic of this book. I want to present the principles of Islamic law in neutral, impartial terms, terms that will be simple enough to readers unfamiliar with Islamic law but at the same time solid enough to those who specialize in



Roberts 2017; and Roberts et al. 2018.

66

 

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the study of Islamic law. For these reasons, I have decided to minimize the use of Arabic terms, fully recognizing the challenges that come with translation of Arabic-​derived  words. The inspiration for this project came out of conversations with practitioners, scholars of Islamic law, and international policymakers. These conversations repeatedly revealed to me the degree to which Islamic law is misinterpreted by the international community. For every Muslim I  spoke with, it was essential that Islamic law be understood on the international level. All of my Muslim interviewees saw Islam as a positive, deeply meaningful force in their own personal life and believed that Islam can carry the meaning of justice into the international level. Yet, each person acknowledged an immediate problem:  the resounding difference between what Islam is at its core and how it is perceived by the international community, especially in the context of dispute resolution. It is this conundrum that prompted me to write this book. Consequently, this project is meant to speak mainly to political scientists and to the international-​ law scholarly and policy communities.

Road Map for the Book The theme of this study is how the changeability of Islamic law’s presence in ILS’ domestic legal systems affects their views of international conflict management venues. In ­chapter 2, I explain concepts fundamental to this study: international law, Islamic law, and the category of ILS. I present international law and Islamic law as dynamic systems that have changed over time and will continue to evolve. I point to several key limitations of canonical categorizations of the Islamic milieu that arguably have held the scholarship back in efforts to investigate the relationship between Islamic law and international conflict management. The ILS category provides, of course, only one among several theoretical as well as empirical templates that enable us to understand this relationship. But I argue that 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 toward international conflict management venues. In ­chapter 3, I explore in considerable detail differences and similarities between the Islamic legal tradition and international law. I talk about the historical interaction between these legal traditions and about the academic conversations on this topic. There are certainly deep divisions in the literature. Some scholars portray Islamic law as fundamentally incompatible with classical international law, while others dismiss existing differences. Mapping the specific characteristics of Islamic law and international law offers a glimpse of the contrasting

 

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paradigms, spirit, and operation of law. I also briefly trace the development of both Islamic law and international law as legal systems. In essence, ­chapter  3 undertakes a comparative exercise in search of legal areas where the Islamic legal tradition and international law coexist without conflict, and legal areas where these two systems diverge. Such discussion of legal traits inherently rests on heavy description of laws and customs. This chapter identifies three points of convergence: law of scholars, custom, and rule of law; as well as three points of departure: the relation between law and religion, sources of law, and religious features in the courtroom. In an important way, the comparative analysis of ­chapter 3 enables me to lay the groundwork for the theory, which I present in ­chapter 4. It is the matrix between procedural and substantive laws in international law and Islamic law that provides the environment in which ILS settle their international disputes. In ­chapter 4, I develop the theoretical argument that guides the remainder of the book. I focus on how and why a domestic legal system reflects the way that a society regulates and grapples with dispute resolution. Each legal system advances a different solution to the problem of inter-​societal and intra-​societal conflict settlement. To that end, Islamic law, as amalgamated into the state law for each of the ILS, shapes these states’ contemporary dealings. In an important way, the domestic balance of Islamic law and secular law expressed in each domestic legal system of ILS gets translated into their preferences with respect to international conflict management venues. My discussion centers on four distinct legal features that define the most preferred form of social interaction for ILS: a unique logic of justice, nonconfrontational dispute settlement, collective embeddedness of the third party, and incorporation of Islamic religious principles into the resolution process. Ultimately, I argue that however appealing international courts and arbitration mechanisms may seem, these venues may face pushback from ILS whose domestic laws are most infused with tenets of Islamic law. Such states gravitate toward the third-​party non-​binding methods such as mediation or conciliation, both of which resemble traditional Islamic law. By contrast, ILS whose domestic legal systems feature important secular characteristics are more accepting of international legal mechanisms. The inherent nature of my research questions requires drawing knowledge from the legal and political science scholarship. As a political scientist, I am naturally concerned with behavior patterns of ILS. Behavior reflects preferences. Thus, the next three chapters incorporate a series of statistical analyses to test the arguments about the Islamic milieu’s preferences with respect to international dispute settlement. Taken together, c­ hapters 5, 6, and 7 demonstrate that the key to understanding why some ILS may use international legal mechanisms lies in the similarities, and not so much in the differences, between Islamic law and international law. Despite the fact that these legal systems are frequently depicted

 

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as diametrically opposed, they are in reality largely compatible. Although the purpose of the book is to delve into the world of Islamic law to determine if there is a systematic way to predict behavior in the face of an international dispute, the book’s empirical chapters offer points of comparison with state behavior more broadly, including that of non–​Islamic law states. This allows the reader not only to understand the preferences and behavior of ILS, but to place the findings in the broader context of institutionalized modes of dispute settlement. In ­chapter 5, I examine ILS’ decisions to use specific mechanisms for conflict management in the context of territorial disputes. Perhaps the most intriguing finding is that similarities between Islamic law and international law matter more than the differences. However, the empirical patterns support the idea that not all ILS approach international conflict management in the exact same way. Indeed, secular legal features, if embedded into the domestic legal system of some ILS—​ in particular, the presence of secular court systems—​have the power to attract these 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 Islamic law. In an important way, there is a synergy between norms of traditional Islamic dispute resolution and international non-​binding third-​party mechanisms. Chapter 6 focuses on the main judicial organ of the United Nations, the ICJ, and its relation to the Islamic milieu. The Court has been constructed largely according to the secular, Western legal logic, and thus Islamic law or customs are not embedded into this international adjudicator. The ICJ as an international adjudicator constitutes a particularly interesting case for the study of the Islamic law–​international law nexus. I ponder whether specific configurations of Islamic law and secular law within the domestic legal systems of some ILS can encourage these states to recognize the ICJ’s jurisdiction. Similar to what I discover in ­chapter 5, ­chapter 6 demonstrates that points of convergence between the legal system of given ILS and international law—​secular legal features planted inside these ILS—​can exponentially increase the discovery of shared legal principles, thereby minimizing discrepancies between these two legal systems. 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. By contrast, some features of Islamic law, if embedded into ILS’ domestic legal systems, can discourage these states from turning to the Court for adjudication. In particular, such seems to be the effect of sharia-​based education and constitutionally endorsed religious requirements placed on ILS’ state leaders. Chapters 5 and 6 show that it is impossible to understand ILS’ preferences with respect to international peaceful settlement without taking into consideration ILS within-​group diversity. Depending on the secular law/​Islamic law nexus, different ILS are attracted to different international

 

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forums, and these differences are washed out by empirical models that try to measure Islamic legal tradition by a single dichotomous indicator. For instance, I demonstrate in ­chapter 6 that the ILS category as a group is, speaking in statistical terms, just as likely as non-​ILS to accept the compulsory jurisdiction of the ICJ. Chapter  7 extends the analyses presented in c­ hapters  5 and 6 by focusing on the Islamic schools of jurisprudence and geographic location. I  ask:  Do Islamic schools of jurisprudence matter in how the Islamic milieu views international conflict management methods? In no other legal system is there such a diversity of opinion between different schools of law and individual scholars. Second: Are there regional variations that may be important in this context? 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 jurisprudential schools, contribute to how the Islamic milieu perceives international conflict management. Thus, much of my discussion in ­chapter 7 is investigative and exploratory in nature. I find that while subscribing to a specific school of Islamic jurisprudence has no bearing on ILS’ preferences with respect to international conflict management, regions 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. I conclude the book by summarizing the main arguments as well as the main empirical findings, stressing the timeliness of insights gained through this inquiry. I situate the importance of this research in the broader international law and political science literatures, discussing the implications for policymakers. Ultimately, I argue that however disconcerting the dissonance between Islamic law and international law may seem to be, there are more similarities between these two legal systems than the policy world, as well as the scholarly circles, account for. Both these legal systems are dynamically evolving and this evolution has the potential to bring about a much more fruitful conversation between them. We at the outset of the twenty-​first century seem to be at a loss to sharply define what Islamic law is, and what might be the most adequate strategies for understanding how it relates to international law in the context of conflict management. This book demonstrates that the inherent diversity of the ILS category should prompt theoretical reflections about how the varieties of Islamic law–​ secular law nexus plot onto these states’ international behavior. 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. The issue of how receptive Islamic law states are to international law and its forums for the

 

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peaceful settlement of disputes is of great importance for the future of international law. The question of receptivity is crucial for institutions, such as the International Court of Justice, specifically created to resolve interstate disputes. The relationship between the Islamic milieu and the Court—​the main UN judicial organ—​provides a test for the universality of a major mode of dispute settlement. International law, including its formalized institutions, continues to develop and adjust to the requirements of the contemporary international community. If international law is to be regarded as an effective tool for upholding global peace, structural biases embedded in peaceful resolution forums must be mitigated. Effectiveness entails going beyond the power of symbolic authority and legitimacy, and fostering true agreement and compliance. International law and the Islamic legal tradition as dynamic and evolving legal traditions both have transformative potential that if realized can bring about a more peaceful world.

 

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International Law, Islamic Law, and Islamic Law States

This book deals with how the presence of Islamic law in the domestic legal systems of Islamic law states (ILS) affects these states’ views of international venues for dispute resolution. In the introduction, I touched on several core concepts. It is perhaps easy to rhetorically refer to international law, Islamic law, or states where Islam plays a key societal role. But what constitutes these categories? My goal is to select concepts that will not mislead the reader. As Hodgson notes, “Terms are the units by which one constructs one’s propositions.”1 This chapter first elaborates on the definition of international law, Islamic law, and Islamic international law (siyar). I then devote considerable attention to the category of ILS, providing its definition and explaining its characteristics and internal variation. In an important way, the ILS category provides a conceptual vehicle that empirically encapsulates this variance. The ILS category also embodies my belief that in order to comprehend the functioning of the contemporary Islamic legal tradition, it is crucial to perceive it in the context of current societies and their lived experiences.2 The Islamic legal tradition should be understood and debated with a keen consideration for its implementation in the social and political world. The reality is that how much Islamic law is infused into a state’s official legal system varies enormously across space and time. For example, the legal systems of Nigeria or Lebanon, two relatively secularized countries, are fundamentally different from that of Saudi Arabia or Iran, where specific interpretations of Islamic law hold a prominent place in the law. The discussion centers on how the focal point of ILS category—​law—​is distinguished from other like concepts used in the scholarly literature.



Hodgson 1974, 1: 45. See Hefner 2016.

1 2

Islamic Law and International Law: Peaceful Resolution of Disputes. Emilia Justyna Powell, Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/ 9780190064631 .001.0001

 

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International Law To begin, I need to emphasize that this book centers upon public international law, the law that governs relations primarily between states.3 With time, other entities were granted the status of subjects of international law—​including international organizations, national liberation movements, sui generis entities, insurgents, and individuals—​expanding international law’s volume, substantive content, and reach beyond the traditional sovereign states. Seagle describes international law as the “greatest of the empires to be conquered for the reign of law.”4 Chinkin and Kaldor add that “International law can be described as a language through which states conduct their relations with other states and indeed with civil society, including through institutions. It creates expectations as to behaviour and thus a predictability in international affairs.”5 Contemporary public international law covers a vast array of issues such as territorial sovereignty, the environment, trade, human rights, criminal law, and a myriad of other evolving areas. In the future, international law is likely to cover additional aspects of state, group, and individual interactions. Private international law is different in that it regulates private transactions, dealings, and disputes between legal subjects that involve foreign elements. It becomes applicable when private parties, such as individuals, companies, and nongovernmental organizations (NGOs) of different countries, interact with one another. As such, private international law answers the questions of the application of foreign law to a particular legal situation and the role of foreign jurisdictions.6 This book focuses on a specific part of public international law—​peaceful resolution of international disputes—​and conceptualizes how Islamic law and international law interact in this area. It is a cliché to say that proper conflict management is critical to global peace. What is more, as Merrills writes, “The peaceful settlement of international disputes is the most critical issue of our time. Although human rights, the environment, and economic and financial issues, among other matters, present challenges which must be addressed if our planet is to have a future, the problems which these subjects pose are always going to generate an abundance of international disputes.”7 The principle of peaceful settlement of international disputes, as outlined in the United Nations

3 The term “international law” was first used by Jeremy Bentham. Cassese (2005, 71–​72) lists states and insurgents as “traditional subjects” of international law, and international organizations, individuals, and national liberation movements as “new subjects.” 4 Seagle 1946, 349. 5 Chinkin and Kaldor 2017, 24. 6 See Shaw 2003; and von Glahn and Taulbee 2013. 7 Merrills 2017, 328.

 



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Charter, constitutes the backbone of interstate relations and its main objective is to outlaw self-​help and reliance on force in the event of a disagreement between states.8 The UN Charter talks about several methods of amicable settlement, including “a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their [states’] own choice.”9 These methods rest profoundly on states’ consent, and the disputing parties are at liberty to pick any method or any settlement venue. Thus states do not have to use international courts or arbitration tribunals to solve their contentions, but can resort to negotiations and retain control over the dispute. Often a third party is asked to help in a non-​ adjudicative way as a mediator, conciliator, or a good officer.10 These non-​legal third-​party alternatives may or may not incorporate international law in the process of settlement. Arbitration and adjudication constitute the most formal, binding third-​party methods. Both entail binding decisions rendered in accordance with international law, with disputants agreeing in advance to accept the award or judgment. These two methods generate an expectation on the part of the international community that the disputants will abide by the third-​party’s ruling.11 Some contentions between states deal with questions of law; they are thus legal disputes. A  legal dispute can be defined as “a disagreement on a question of law or fact, a conflict, a clash of legal views or of interests.”12 The docket of the International Court of Justice (ICJ) provides many examples of legal disputes: disputes over territory, maritime zones, questions of diplomatic immunity, and so on. Only legal disagreements fall in the jurisdiction of international courts.13 The majority of international treaties stipulate that in the event of a disagreement over treaty provisions, the parties are to seek peaceful settlement. Often, the parties may choose from a range of methods, and international courts are usually designated as the final option. However, states’ quibbles are not always legal in nature, but in some cases deal with political issues. Also, legal disputes themselves take place in a much larger, political context. In such 8 See Collier and Lowe 1999. 9 UN Charter, chapter VI, Article 33. 10 Via good offices, a third party induces the disputing states to negotiate a settlement. A commission of inquiry is to ascertain the facts under contention. During conciliation, a third party considers all elements of the dispute and formally submits suggestions for a settlement. In mediation, the third party has a very active role in the communication process. Chapter 4 further discusses features of each dispute resolution method. 11 Simmons 1999. See Powell and Wiegand 2014. 12 ICJ website, http://​www.icj-​cij.org. 13 Such legal disputes are “capable of solution by the application of judicial processes, and susceptible of a decision upon the basis of law” (Collier and Lowe 1999, 14).

 

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instances, in order for the case to reach the ICJ, it has to be “depoliticised.”14 In essence, the political and the legal aspects of the case must be separated by either the Court or the parties.15 Within the ILS category, both types of disputes, legal and non-​legal, are a mainstay of this book. International law constitutes a dynamic and ever-​evolving legal system. Its genesis, as well as subsequent development, stems from a belief that there exists a universal moral and legal order that should be followed not only in the context of within-​polity dynamics, but also in the context of between-​ polity dynamics. From very early times, when people started to organize themselves into tribes and groups, there was a body of norms—​more or less loosely defined—​that pertained to affairs between these tribes or groups. Rudimentary norms of inter-​group trade, diplomacy, and conflict emerged in various communities and across different parts of the globe. These elementary rules were inevitable, given the coexistence of distinct collectivities. Bit by bit, unwritten norms and expectations of behavior were systematized, compartmentalized, and elaborated upon by scholars of international law. Nowadays, international law, in its various forms and formulas, regulates the behavior of states and other actors who have been granted the status of subjects of international law. In its present form and despite its enormous development, international law “is not a unified, manufactured system, imposed upon the world of international or inter-​communal relations.”16 To a large extent, it continues to grow organically, responding to the needs of the community in which it operates, the community of states. At times, the law’s growth spurts are minuscule. At other times, usually in response to a pressing need, they are notable and quite radical. One important development, going back to antiquity, was the emergence of jus gentium—​in Roman law, the law governing relationships between Roman citizens and foreigners, and well as relationships between foreigners. Roman legal scholars introduced the idea that there are two types of laws:  one that each polity creates to regulate inter-​polity relations, jus civile, and another type that is fundamentally based on ideals of justice that are observed by all polities, jus gentium.17 The Latin term “jus gentium” translates to “law of nations,” but as used by the Romans it covered relations within a specific polity

14 Merrills 2017, 165. 15 The ICJ addressed the issue of political and legal disputes in the United States Diplomatic and Consular Staff in Tehran case by stating “legal disputes between sovereign States by their very nature are likely to occur in political contexts and often form only one element in a wider and long-​standing political dispute between the States concerned” ([1980] ICJ Rep. p. 3, at p. 20). 16 Lowe 2007, 8. 17 Von Glahn and Taulbee 2013, 25.

 



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and did not fundamentally rest on the assumption that there exists a community of states.18 Thus, it is important to keep in mind that the main purpose of these rules was domestic, not international in the sense that we understand the term “international” today. The Middle Ages constituted an essential period in the progression of international law, issuing ultimately in a vaguely defined set of norms understood as deriving from natural law. Many actors claimed to possess the authority to govern the legal space that is currently occupied by rules of interstate interactions. In the Western milieu, the pope, and several orders prominent within Christendom, asserted privileges over norms governing relations between collectivities such as municipalities and states. During these times, there was no universal legal order that would apply to all polities and all institutions. Instead, Christendom and the Islamic milieu saw their relations as being governed by some sort of supranational rules. In Christendom, the pope, as the head of the Catholic Church, claimed to have the right to hold authority over a broad spectrum of international relations. Since then, the position of religiously grounded laws and rules of behavior has changed. Over time, ideas about international law became increasingly based on reason and scientific evidence. International jurists saw international law as a separate body of legal norms that is capable of changing to reflect the conditions of the international system.19 As Bull writes, “In identifying the sources of the rules by which states are bound, theorists of international society in the eighteenth and nineteenth centuries turned away from natural law and toward positive international law; more generally, they took as their guide not abstract theories about what states should do, but the body of custom and treaty law that was accumulating as to what they did do.”20 This evolution has important repercussions for the relationship between the Islamic legal tradition and international law—​an issue which I  address in much greater detail in ­chapter 3. International law has since antiquity experienced massive changes. Globalization accounts for fundamental adjustments in the way that international law operates within domestic jurisdictions. There is no reason to believe that international law as a legal tradition will not continue to evolve, because states use it as a means to deal with issues they face. As Goodman and Jinks write, “There are clearly good reasons to think that like-​minded states, at times, coordinate their response to common problems through international law.”21 Every

18 Nussbaum 1954, 9; see also Diehl and Ku 2010, 8. See also Armstrong, Farrell, and Lambert (2012, 47) for an interesting discussion of the meaning of the phrase “ius gentium” as used by the Romans. 19 See Diehl and Ku 2010; O’Connell 2008. 20 Bull 1977, 34. 21 Goodman and Jinks 2013, 1.

 

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era has a different set of common problems. Historically, international law has grown from a handful of rules and customs to a legal system with immense scope and reach. This expansion has been occurring not only via increased legalization of additional areas of substantive law. Modern international law has increased in scope to govern not only the behavior of states, but also individuals, international organizations, and other groups such as national liberation movements, insurgents, and sui generis entities.22 The increased variety of international actors has acquired international legal personality, further increasing the reach of international law. What is more, all these diverse actors have a different set of international rights and obligations. Roberts and Sivakumaran address this point directly in their discussion of the ongoing evolution of international law: “The concept of subjecthood under international law has widened to include a variety of nonstate entities, such as individuals (particularly under international human rights, investment, and criminal law) and international organizations (such as the United Nations). The concept has also become more differentiated; there is now widespread recognition that different subjects may possess different rights, obligations, and enforcement capabilities.”23 The way that international law gets expressed has also changed. In an important way, once clear-​cut distinctions between the different forms of expression of international law have become blurred. When actors more frequently resort to soft law, this challenges the functioning of international law as a legal system based on a traditional set of legal sources including treaties, custom, general principles of law, and so on. As Chinkin argues, “international order cannot be viewed on a simple linear scale progressing from non-​law at one extreme to jus cogens at the other, but rather as a continuum in which there is a constant complex interlocking between jus cogens and non-​law or soft law.”24 International relations cannot be predicted in a perfect way; it is therefore difficult to forecast precisely what the future holds for the development of international law. Modern international law continues to evolve over time, expanding its legal authority over a number of substantive issue areas. Procedure in international institutions changes too. Changes in international law, additional detail in its rules, and growth in the law’s jurisdiction stem from changes in the international system. The world faces different challenges. Law responds to these challenges. As Shaw writes, “law reflects the conditions and cultural traditions of the society within which it operates. The community evolves a certain specific set of values—​social, economic and political—​and this stamps its mark on the legal framework which orders life in that environment. Similarly, international

See Cassese 2005; and Shaw 2003 for detailed discussions of subjects of international law. Roberts and Sivakumaran 2012, 112. 24 Chinkin 1989, 865. 22 23

 



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law is a product of its environment.”25 In this context, it is crucial to recognize that norms of international law operate “at different levels of the legal system (international, national, subnational, and private).”26 Thus, the evolution of international law does not take place merely at the global level, but has a multilayered character. It reaches deeply into domestic legal systems and into civil societies. NGOs and international organizations (IOs) have assumed key roles in campaigning for support and effectiveness of international treaties, soft law, and so on.27 In modern times, states sign agreements not only with each other, but also with armed groups, liberation movements, and state-​like entities. The ever-​expanding web of legal/​normative layers that cumulatively constitute what international law is today elevates states’ uncertainty. States are no longer the sole actors endowed with the ability to create international law. Nowadays, civil society, sub-​state actors, individuals, NGOs, and IOs have unprecedented influence in this process. What is more, though states directly create a substantial bulk of international law, various actors will likely matter more in the process of drafting, implementing, and complying with international standards of behavior. Consequently, to a large extent, the practice of international law—​execution of its rules, their effectiveness, and determinants of compliance—​might arguably partially fall outside states’ control. Not all states are likely to welcome these changes, however gradual or minuscule. Chinkin and Kaldor argue that “states are . . . likely to jealously preserve their control over law-​making and also to resist the legitimacy that allowing even a small role to non-​state actors in this regard might invoke.”28 Since the ability to influence the development of international law continues to partially shift away from states, considerations of power are likely to become less important in the lawmaking process. Instead, ideas connected to human well-​being, human rights, peace, dialogue, and development have increased potential to contribute to the evolution of international law. Legalization and institutionalization will surely be more significant in some areas than in others. Specific parts of international law are likely to be reorganized to better address the changing needs of the international community. Technological capacities change, the human ability to explore and exploit seas, oceans, and outer space increases. Non-​state actors and international organizations have an increased role to play in international relations. Indeed, the growth in number, scope, bureaucracy, and structural design of international organizations as well as regional organization is striking. Institutional rules of

Shaw 2003, 42. Diehl and Ku 2010, 152. 27 More generally, see Block-​Lieb and Halliday 2017. 28 Chinkin and Kaldor 2017, 559. 25 26

 

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operation of these organizations have become steadily more detailed and complicated, pushing further the development of international administrative law.29 International organizations provide forums for states to generate international law. The process of lawmaking has also become much more complicated and legalized. For instance, before an international treaty is actually able to bind states, its content is carefully analyzed, scrutinized, and, more often than not, changed multiple times. Recognized structures and channels operating within international organizations or regional forums shape multilateral treaty-​making processes. In modern times, it also seems that international courts and, more generally, formalized venues for dispute settlement are the backbone of the international system. Arguments about international rule of law and the importance of curbing state sovereignty are a mainstay of modern discussion about international law. Issues that historically fell under the jurisdiction of domestic courts now fall under the jurisdiction of international courts. As Alter writes, “The result is a judicialization of international relations and diminishing government control over how international legal agreements are understood domestically and internationally.”30 My analysis as well as the existing literature suggests that, as strategic actors, states—​ILS and non-​ILS—​will continue to forum shop.31 States’ choices will drive the development of some settlement venues, and stall the evolution of other venues. Cumulatively, all these new realities contribute to the change in the overall character of international law, in particular in the way that it functions. These new realities determine what international law is and how it should be understood and studied. As Diehl and Ku write, a system that once heavily relied on states is now “more diffuse in the powers it allocates to actors, and there has been a quantum increase in the forums and institutions that support it.”32 There is also much more interaction and dialogue between different areas of international law. Rules within one substantive focus influence rules in other areas. Cassese writes that “the gradual interpenetration and cross-​fertilization of previously somewhat compartmentalized areas of international law is a significant development: it shows that at least at the normative level the international community is becoming more integrated and—​what is even more important—​that such values as human rights and the need to promote development are increasingly

29 See Abbott 2015. 30 Alter 2014, 5. 31 See Powell and Wiegand 2014; Powell 2016. For the broad discussion of the role that forum shopping plays in international law, see Koskenniemi and Leino 2002; Shany 2003. 32 Diehl and Ku 2010, 42. These authors introduce a conceptual framework to understand the evolution of international law, focusing on its dual character: the operating system and the normative system.

 



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permeating various sectors of international law that previously seemed impervious to them.”33

Islamic Law In the comparative law literature, technical designations for groups of countries that share substantial legal affinity have been families of law, as coined by David in the early 1960s.34 More recently, the concept of legal traditions propagated by Glenn has enjoyed significant traction in contemporary study of comparative law. In fact, Glenn seems to have swept the scholarly field in its effort to provide an adequate term for legal constellations.35 While calibrating appropriate phrases to describe legal systems, traditions, or families is an effort worth pursuing, this is not the central theme of this study. I choose to employ the designation “Islamic law” to describe the religious law of Islam, with all the cultural attributes associated with societies that practice the Muslim faith.36 I do so recognizing that the scholarship widely diverges on what the terms “Islam” and “Islamic” mean and that it is not possible to draw a harsh dividing line between religious aspects of these terms and the features of the culture or society deeply linked to the religion.37 While debating the various senses of these words is quite useful and desirable, this is not the purpose of this book. In a way, my notion of Islamic law pertains to the entirety of the legal and cultural tradition of Islam.38 To that extent, I share the vision of Islamic law that was expressed to me by one of my interviewees, Imam Ibrahim Amin, who stated that “looking at Islamic law via secular lenses does not work well. There is a risk of imposing the general perspective of secular law on Islamic law. I would rather call it the moral code,

33 Cassese 2005, 45. 34 David 1964. 35 See Glenn 2014. 36 See Hallaq 2005. For a discussion of Middle Eastern law, see Mallat 2007. 37 The scholarship offers several ways of understanding the term “Islamic.” For instance, Hodgson (1974, 1: 59) argues that the term “Islamic” should be restricted to “ ‘of or pertaining to’ Islam in the proper, the religious, sense.” Hodgson has introduced the term “Islamicate” as referring “not directly to the religion, Islam, itself, but to the social and cultural complex historically associated with Islam and the Muslims, both among Muslims themselves and even when found among non-​Muslims.” See also Ahmed 2016; Asad 2009; Aydin 2017; Voll 1994. 38 Dupret (2007, 82) proposes that in terms of Islamic law, it is useful to examine “how people, in their many settings, orient themselves to something they call ‘Islamic law’ and how they refer personal-​status questions to the Islamic-​law model.” To Dupret, therefore, it is important to focus on what people actually do when they refer to Islamic law.

 

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[the] Islamic moral code as such.”39 This book attempts to measure the presence of Islamic law in officially recognized state law. But my efforts should not be misunderstood as equating sharia merely with a system of laws.40 I fully recognize the differences between sharia of the past and sharia of the present. Yet, I believe that in itself the Islamic legal tradition is an ongoing, constantly evolving entity. Thus, in trying to understand what sharia is—​or perhaps what it is not—​it is important to consider not only traditions, texts, and principles that derive from traditional sources of Islamic law, but also to leave room for the possibility of change. In other words, the contemporary study of Islam’s foundational sources should be informed by societal context and localized practice to grasp the intricate nature of the Islamic legal tradition. This legal tradition, notwithstanding its fuzzy edges, grows and develops in particular contexts on the basis of texts, jurisprudence, and legal principles. I  also acknowledge that conceptualizing sharia has been and still is very difficult. As Abou El Fadl writes, “the challenge in conceptualizing Shari’a is that, for a myriad of reasons, all conceptualizations are highly contested—​from the highly prejudicial approaches found in so many Islamophobic discourses, including the anti-​Shari’a legislations proposed in the United States, to the highly fluid, normatively transcendent, and complex ways that we witness in the age of revolutions in the Arab world.”41 Sharia is, according to Islamic faith, the expression of God’s will for humans, and it is the most perfect, infallible, just, and perpetual system of laws.42 Bassiouni writes that “the term sharī‘a refers to that which Allah ordained in the Qur’ān.”43 Yet, as Quraishi-​Landes explains, “The core principle of Islamic jurisprudence is that sharia, God’s Law, cannot be known with certainty.”44 Initially, the term “sharia” denoted the place from which one descends to water. Over time, it developed to mean the law that regulated water and eventually covered all issue areas that were considered crucial to human existence.45 The meaning of the sharia is, to this day, reflective of its origins: it is to be a comprehensive 39 Author interview with Imam Ibrahim Amin, Oxford Centre for Islamic Studies, Oxford, UK, May 16, 2016. 40 For an interesting discussion of the relationship between Islamic law and sharia, see Bassiouni 2014. He writes (p. 13) that “the sharī‘a and Islamic law are distinct from one another. The latter is complementary to the sharī‘a, which is the primary source, or aṣl (uṣūl, plural).” 41 Abou El Fadl 2012, 809. 42 See Khadduri 1956, 359. 43 Bassiouni 2014, 39. 44 Quraishi-​Landes 2015, 554. 45 Mallat 2007, 32. Interestingly, as Janin and Kahlmeyer (2007, 28)  note, the word “sharia” appears relatively rarely in the sunna and the Quran itself. In the Quran, the most important reference to sharia occurs in Sura 45, verse 18: “Then We set thee on a clear path concerning the Affair; so follow it, and follow not the vain desires of those who do not know.” In this passage, the path denotes a code of conduct and religion, the correct laws, a way divinely appointed.

 



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guide to all aspects of life, a means that will direct each Muslim to the favors and blessings from God.46 Through this historical development, sharia became a sweeping concept, closely intertwined with the various aspects of Islamic society. While the origins of sharia and debates over its meaning are important issues, I leave this task to scholars of Islamic law and comparative law. In doing so, however, I recognize that there are many definitions of sharia, some more encompassing than others. Most if not all scholars agree that law has always been central to sharia.47 In fact, according to Gibb, “The master science of the Muslim world was Law.”48 Mallat similarly argues that “intellectual primacy in Islam finds in law its dominant discipline as the chief exponent of religion and social values and institutions.”49 In fact, there is not much human activity that falls outside the legal realm. As Glenn notes, “So there is life outside of law, but not much, and those parts of the Koran recognized as other than law do not have much to do with (legal or moral) notions of obligation.”50 To repeat, sharia cannot by any means be reduced to a system of laws. Abou El Fadl writes that “Shar’ or Shari’a in itself does not necessarily denote a positive set of Divine commandments with which human beings must comply. However, it does refer to normatively transcendent and evaluative criteria for the good and for goodness.”51 Sharia has legal as well as non-​legal dimensions. According to An-​Na‘im, “The scope or subject matter of Shari’ah is much broader than ‘legal’ subject matter, ranging from ritual religious practices, ethical principles, and social relations to positive legal rules.”52 An-​Na‘im’s description is important, because one should not narrowly equate sharia only with law. It is what lies beyond law that constitutes a crucial building block of sharia and fundamentally shapes the structure and the spirit of Islam. Weiss conceives of sharia in a similar way, suggesting that it “includes norms beyond those that constitute law in the strict sense,” and “it is incorrect to equate Shari’a and law simpliciter as is often done.”53 To that extent, issues important to human existence such as fasting, pilgrimage, marriage, contractual obligations, war, and so on play a vital role in sharia.54 Sharia brings together a diverse set of rules, principles, morality, 46 See Hamoudi (2008), who argues that contemporary Islamic rules have evolved from classical times, and have been largely shaped by “social, cultural, and economic forces” (p. 424). 47 Hallaq 2005; Weeramantry 1988, 9; Weiss 2006. 48 Gibb 1970, 7. 49 Mallat 2007, 7. 50 Glenn 2014, 198. Interestingly, only a small proportion of Quranic verses constitute purely legal prescriptions. 51 Abou El Fadl 2012, 808–​809. 52 An-​Na‘im 2004, 163 53 Weiss 2006, 8. 54 Hallaq (2005, 209) defines sharia as “Islamic law, including legal doctrine and the judiciary.”

 

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and social norms. As Al-​Azmeh has observed, “Islamic law is not a code. This is why the frequently heard call for its ‘application’ is meaningless, most particularly when calls are made for the application of sharī’a—​this last term does not designate law, but is a general term designating good order, much like nomos or dharma.”55 In general, the concept of sharia has a long scholarly genealogy, shaped in part by its relation to the Western understanding of what law is and how it should be formed.56 Mallat writes that sharia denotes “Islamic law as a whole.”57 Glenn’s definition is very similar: “the totality of islamic law.”58 Finally, Hallaq proposes that “the Sharī‛a consists of the hermeneutical, conceptual, theoretical, practical, educational, and institutional system that we have come to call Islamic law.”59 The intricate nature of sharia runs beyond the relationship between its legal and non-​legal subparts, and profoundly rests on competing, often contradictory, interpretations of the Quran and sunna. Within Islam there are several narratives about what it means to believe in God and follow his precepts. These competing understandings of law have formed fiqh—​Islamic jurisprudence—​an important part of sharia.60 In fact, because the science of jurisprudence involves a human element, there is an intricate relationship between the concept of sharia and the concept of fiqh. Abou El Fadl writes that “all schools of thought accept this differentiation between Shari’a as more divine and fiqh as the result of human comprehension, apprehension, and understanding. And furthermore, they accept the distinction between Shari’a, fiqh, and ahkam (the positive commandments that result from the process of understanding and analyzing transcendental values).”61 With this important distinction in mind, Abou El Fadl defines Islamic law as “the fallible and imperfect attempt by human beings over centuries to 55 Al-​Azmeh 1993, 12. 56 The interactions between sharia and the West—​engendered via colonialism and modern state governance—​have raised important questions about sharia’s nature. Much research about sharia was done by nineteenth-​century European academics for the purpose of effective colonial governance (see Otto 2010b). 57 Mallat 2007, 32. Mallat also points to the fact that there are three different words for “law” in the Islamic legal system: fiqh (jurisprudence), qanun (codes, statutes), and sharia. 58 Glenn 2014, 183. Glenn underscores an important commonality between Islamic law and chthonic law: both of these legal traditions embrace the “notion of a way of life” in the context of law. Interestingly, according to Rosen (2000, 93), “The shari’a is not just a body of substantive laws but a number of procedures which derive and reciprocate legitimacy from being shared with modes of thought that cross-​cut numerous domains of social life.” 59 Hallaq 2013, 51. 60 Glenn 2014, 183. For a comprehensive discussion of fiqh, see Kamali 2003. For an interesting explanation of how fiqh works, see Fadel 2016; Quraishi-​Landes 2015; and Abou El Fadl 2001. 61 Abou El Fadl 2012, 810.

 



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explore right and wrong, and to discern what is good for human beings.”62 The concept of fiqh itself, it should be observed, is twofold:  “Jurisprudence in an Islamic context refers on the one hand to the corpus of laws or legal rulings and knowledge of the law, both termed faqīh.”63 In this context, Fuller points out that “there is no one Shari’a but rather many different, even contesting ways to build a legal structure in accordance with God’s vision for mankind. A  single Sharia doesn’t exist. It is not a book that one can purchase. It is formed, shaped, and interpreted by humans’ differing understanding of what the Qur’an and the Prophet’s life and experience means.”64 It seems that in the current era, sharia has become an even more disjointed and convoluted concept, as different actors promote their own versions of Islamic law.65 As Vikør adequately put it, “There is no such thing as a, that is one, Islamic law, a text that clearly and unequivocally establishes all the rules of a Muslim’s behaviour.”66 There is an intricate, unbreakable relationship between sharia and fiqh:  “The shari‛a, imposed on humankind by God’s revelation and embodied in the foundational texts of the Qur’an and hadith, is explained and elaborated by the interpretive activity of jurists. Since this is the only access to the law in practice, shari‛a and fiqh often overlap in usage, though the former retains the connotation of the divine (the law as God wills it) and the latter retains the connotation of the human (the law as an approximation of God’s will as determined by jurists).”67 Bassiouni writes that “in Islam, theology controls the law and theological doctrine controls legal

62 Abou El Fadl 2012, 809. See also Abou El Fadl 2003b. 63 Bowering (ed.) 2013, 288. 64 Fuller 2003, 57. Otto (2010b, 25–​26) offers an interesting categorization of sharia. The divine, abstract sharia denotes “God’s plan for mankind and as such contains the rules for good order and human behaviour that should guide his religious community.” Second, the classical sharia denotes, according to Otto, the rules and principles as constructed by the fiqh-​scholars. Third, historically transferred sharia encompasses the entire body of interpretations and considerations over time of the law. Finally, the contemporary sharia “refers to the whole body of principles, rules, cases, and interpretations that are actually in use at present throughout the Muslim world.” 65 Shakman Hurd (2015, 9–​10) argues that in an effort to study the relationship between religion and governance, one needs to distinguish between expert religion, official religion, and lived religion. In the context of Islam, the lived Islam would denote the religious practices of the Muslim citizenry in their everyday lives. In contrast, the official Islam is a set of beliefs presented by political as well as religious leaders. It is, therefore, the official Islam that appears in the official legal systems and state institutions of ILS. The expert religion is religion created or pieced together by religious experts who present, analyze, and systematize knowledge about a religion via academic and public-​policy scholarship, university centers, and the like. 66 Vikør 2005, 1. 67 Bowering (ed.) 2013, 288. See also Hussin (2016) for an excellent discussion of the meaning of Islamic law.

 

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doctrine.”68 In some respect, Islamic schools of jurisprudence introduce variation to Islamic law unlike any other legal tradition. I continue this theme in my discussion of the ILS category, as well as in c­ hapter 7, where I delve more deeply into the issue whether Islamic legal schools impact ILS’ preferences toward international conflict management. The legal and cultural aspects of the Islamic legal tradition are crucial to this book, yet my core focus is on the relation between secular laws and religious laws across time and space within the ILS category. I argue that it is the specific configuration of these laws that has important consequences for these countries’ choices of international peaceful resolution venues.69 Thus, in furtherance of the goals of this project, I understand Islamic law—​or, speaking more broadly, the Islamic legal tradition—​in terms of its legal attributes, the positive law. In doing so, I recognize that culture informs law and that positive rules reflect complex socioeconomic patterns and unwritten traditions. Law is to a large extent mediated by and reflective of a broader societal culture. Positive law is only a fraction of a legal tradition—​it takes place in a much wider context.70 The link between law, culture, and society is especially pervasive in the context of the Islamic milieu. In fact, most scholars recognize and accept that the term “Islamic,” used in any substantive context such as art, history, or law, denotes not only the religion of Islam, but also “the larger culture in which Islam was the dominant—​but not sole—​religion practiced.”71 As Hodgson writes, “Islam, rather more than Christianity, tended to call forth a total social pattern in the name of religion itself.”72 In a way, in the context of Islamic law, it is perhaps more fitting to employ the term “Islamic legal tradition” since, as defined by Glenn, the notion of a “tradition” captures the system of norms and established ways that govern human interactions—​both positive law as well as customs.73 These normative overlapping conventions capture the differentiation within the ILS category. 68 Bassiouni 2014, 25. See also Fadel 2016. 69 In this context, it is important to recognize that any scholarly evaluation or description of Islamic law must take into consideration the evolution over time of the Islamic legal tradition. As Hamoudi (2008) argues, Islamic law as practiced in modern times can be understood as “the product of mediation among competing influences in Muslim society” (p. 469). First, Muslims are trying to resist the prevailing political as well as economic framework with the hope of fashioning “a separate Muslim polity with its own ethical and cultural norms” (p. 469). Second, Muslims acknowledge “the necessity of engaging the global community on a variety of levels” with hopes of improving the political and economic status of the Muslim community (p. 425). 70 Glenn 2014. 71 Blair and Bloom 2003, 153. See also Hodgson (1974), who introduced the term “Islamicate” to denote the secular (i.e., nonreligious) aspects of Islamic civilization and governance. See also Aydin 2017; and Voll 1994. 72 Hodgson 1974, 1: 89. 73 Glenn 2014.

 



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Bowen writes that “it is sharî’a that Muslims have in mind when they say that nothing in the world is outside Islam.”74 The point is that Islamic law does not consist of a fixed and sharply defined set of rules.75 I am keenly aware that there is more to sharia than legal prescriptions, and my intent is to conceptualize the term “Islamic law” in a way that captures the legal culture of ILS across the different countries as well as across different points in time. The hope is that the legal system reflects this legal culture, or morality, even if imperfectly. It is my belief that the legal system reflects how societies understand and apply Islamic legal tradition in their lived experiences.76 This book, therefore, does not rest on a purely textual understanding of the Islamic legal tradition. Instead, my goal is to empirically capture how the Islamic legal tradition is understood, debated, and implemented in the social world influenced by politics, culture, and economics. My work takes this “messiness” into consideration and it echoes studies in anthropology and legal studies that point to the embeddedness of law and legal systems in a wider societal culture.77 What is more, from an empirical point of view, it is simply feasible to measure positive law, as it clearly manifests itself in ILS’ constitutions, laws of lower status, and institutions. Most importantly, the focus on concrete, positive law allows me to draw direct comparisons between specific rules of international law and Islamic law in the context of peaceful dispute resolution. The words of Bassiouni capture well the nature of sharia: The state of the sharī‘a’s scope, meaning, content, and application can at best be described as a tree with many branches. The fact that this tree has grown over fourteen hundred years explains the strength of the trunk, and also the diversity of the branches. While the trunk remains unchanged, the branches are constantly expanding in different directions, assuming new shapes and sizes. In time, some of these branches fall from the tree or wither away, while others grow stronger, taller, wider, or even move out in different directions. To see the tree as a whole is a challenging undertaking, for it depends on one’s vantage point.78

74 Bowen 2003, 14. 75 See Hussin (2016) for an in-​depth analysis of how Islamic law is a site for the articulation of the relationship between the state and the society. For Hussin, Islamic law is “a modern construction, inextricable from the state and its history, and therefore inextricable from colonialism and the influence of local elites” (p. 14). 76 See Hefner 2016. 77 Bowen 2003, Merry 2000. 78 Bassiouni 2014, 83–​84.

 

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Islamic International Law Islamic international law, siyar, is a part of Islamic law.79 Bassiouni addresses this point directly:  “International law, from the perspective of Muslim jurists, was simply another topic within the Islamic legal system, a fact that gives Islamic international law a monist character: it applied as part of an Islamic State’s domestic legal order, whether or not non-​Muslim States accepted it as binding.”80 Scholars looked for principles of Islamic international law in Islam’s textual sources, and when that was not possible, used analogical reasoning or relied on customary norms or established practices. Unfortunately, as a body of rules and norms, Islamic international law has received considerably less scholarly attention than other substantive areas of Islamic law.81 Modern Muslim jurists have not formulated a coherent body of contemporary Islamic international law, and such efforts, according to some, are unlikely.82 Instead, “Muslim jurists focus their attention on whether the particular undertakings of Muslim States are consistent with their understanding of Islamic law.”83 Islamic international law regulates behavior of states representing the Islamic legal tradition and individuals in the international arena.84 From a historical perspective, siyar is somewhat analogous to jus gentium—​in Roman law, the law governing relationships between Roman citizens and foreigners and well as relationships between foreigners. Siyar covers a variety of substantive issues including treaty obligations, maritime exploration, and protection of diplomatic agents. However, what distinguishes its precepts from classical international law is that siyar, like any branch of Islamic law, “has always carried with it the added weight of religious sanction.”85 Siyar is partially planted in spirituality and divine authority. There are several 79 Siyar developed early owing to pragmatic considerations. Law was needed to deal with non-​Muslim states and with religious minority populations residing within Islamic collectivities (Afsaruddin 2013b, 45). Shortly after the death of Muhammad, scholars devoted considerable time and effort to amass comprehensive manuals addressing the conduct of Muslim collectivities toward outsiders. See also Al Ghunaimi 1968; al-​Zuhili 2005; Bassiouni 2014, 2015; Fadel 2010; and Hamidullah 2012. 80 Bassiouni 2014, 158. 81 See Bassiouni 2014, 2015. 82 Fadel 2010. 83 Fadel 2010, par. 58. 84 Khadduri (1984, 164) writes that siyar is “the law governing the conduct of the Islamic State with other communities.” According to Bsoul (2008, 7), “siyar is the body of laws that concerns relations between Muslims and non-​Muslims in times of peace and war, although the classical literature mostly deals with their relations within the confines of dār-​al-​Islām.” Several other scholars describe siyar as a set of rules governing Muslims’ relations with other individuals and collectivities (see Bsoul 2008,  9–​10). 85 Bsoul 2008, 12.

 



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extensive treatises on Islamic international law. Despite the fact that there was relatively little room for any interstate laws in the Middle Ages, Muhammad ibn al-​Hasan al-​Shaybani, a prominent Islamic jurist of the Hanafi school, wrote the Kitab al-​Siyar al-​Kabir, or Introduction to the Law of Nations, at the end of the eighth century, long before the systematization and codification of international law in Europe by Grotius and other prominent Western writers.86 A much more modern interpretation of siyar is provided by Hamidullah, who proposes that Islamic international law is “that Part of the law and custom of the land and treaty obligations which a Muslim de facto or de jure State observes in its dealings with other de facto or de jure States.”87 Al Ghunaimi adds that while “a large element in Muslim international law is increasingly conventional,” it is also crucial to take into consideration “the usul, sources of the Shari’ah, for primary evidence of the Muslim law of nations.”88 Going beyond the more positivist definition of Hamidullah, Al Ghunaimi defines Muslim international law as “the sum total of rules and practices which Islam ordains or tolerates in international relations.”89 To Fadel, “Islamic rules of international law are best understood as providing legal baselines that were to regulate the conduct of the emerging Islamic State in the absence of treaty commitments with non-​Muslims, while at the same time enabling that state to enter into peaceful relations with non-​Muslims.”90 Just as Muslims are to follow the principles of sharia, so too are Islamic tribes, nations, and states.91 All power in the domestic and international realms comes from God; He is the legal, ethical, and moral basis for all laws. The Islamic legal tradition interacts with ILS’ international politics in a nuanced way. There is a unique notion of justice, Islamic justice, that permeates sharia. Obedience and submission to God lie at the heart of this justice. This justice embraces an inimitable legal logic of sacredness of revelation.92 Importantly, Islamic law does not constitute an attempt to discover the rules as practiced by states, because the

86 Hugo Grotius’s On the Law of War and Peace was published in 1625. Kitab al-​Siyar al-​Kabir has been subject to numerous scholarly treatises, commentaries, and expositions, such as Sharh al-​Siyar al-​Kabir, written in the eleventh century by Muhammad ibn Ahmad al-​Sarakhsi. 87 Hamidullah 2012, 3. See also al-​Zuhili 2005. 88 Al Ghunaimi 1968, 95. 89 Al Ghunaimi 1968, 96. 90 Fadel 2010, par. 57. 91 Author interview with Mohammed Al-​ Qasimi, College of Law, United Arab Emirates University, Al-​Ain, November 2013. It is important to note that at times the impact of classical Islamic legal thought on policymaking in the modern time is indirect (see Hassner 2007; Reese, Ruby, and Pape 2017). 92 As Khadduri (1984, 164) explains, “The scale of justice applied by the Islamic state in its relations with other states was based not necessarily on reciprocity or mutual consent, but was a self-​ imposed scale defined and determined in accordance with the Islamic public order.”

 

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existing practice may not be in conformity with God’s will.93 Naturally, the introduction of the concepts of nation-​state and state sovereignty necessitated that Islamic international law and jurists—​who derive the rules of the law—​adapt to the new realities. Consequently, the normativity and justification of states’ actions are evaluated via the broad lenses of Islamic ethics, morality, and justice. Islamic law has for centuries coexisted alongside Western international law. The ongoing interaction has revealed some important doctrinal differences as well as points of convergence that influence ILS’ preferences toward international conflict management strategies.94 I tackle this issue in a descriptive way in c­ hapter 3 and more theoretically in ­chapter 4.

The Category of Islamic Law States It is difficult, if not impossible, to designate the boundaries of what it means to say that a law is based on precepts of sharia.95 Thus, a more adequate and more palpable way to define an Islamic law state is a state with an identifiable substantial segment of its legal system that is charged with obligatory implementation of Islamic law, and where Muslims constitute at least 50 percent of the population.96 This definition does not hinge solely on the religious preferences of ILS’ citizenry, but rather centers on whether a country officially, directly, and in an obligatory way attempts to apply Islamic law as a substantial part of personal, civil, commercial, or criminal law. I introduce this categorization for empirical reasons, recognizing the contested nature of its name as well its constitutive parts.97 Unlike many studies of Islamic law, Islamic civilization, and so on, my 93 Bsoul 2008, 12. 94 Several interesting studies tackle the impact of the Islamic faith on behavior of states and non-​state actors (see Carter 2011; Hassner 2009, 2016; Reese, Ruby and Pape 2017; Toft and Zhukov 2015). 95 Bowen (2003, 15) makes this point in the context of Indonesia by stating that “ ‘Sharîā’ can serve as an all-​purpose term.” He follows with an example from Indonesia when, in July 2000, the governor of the Aceh province announced that the government would oversee and usher in the application of sharia in the province; government officials were unsure about what this would entail. 96 I thank Robert O’Brien for helping me sharpen this definition. 97 Hallaq (2013, 49) rejects the notion of “Islamic state” and writes that “Islamic governance (that which stands parallel to what we call ‘state’ today) rests on moral, legal, political, social, and metaphysical foundations that are dramatically different from those sustaining the modern state. It is the Community (Umma) that displaces the nation of the modern state.” To him the structures of the modern state are simply not compatible with “even the basic requirements of Islamic governance” (p. 156). Also, An-​Na‘im (2008, 280) argues that “in the present modern context, the idea of an Islamic state is inherently inconsistent with the premise of constitutionalism and is not viable in practice. No state can successfully operate on the totality of what Muslims accept as Shari‘a principles.” A much more theoretical treatment of this issue appears in Quraishi-​Landes (2015, 553),

 



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emphasis here is on states’ preferences with respect to international mechanisms for conflict resolution.98 This focus necessitates a systematic analysis of states’ behavior at the level of international institutions. Therefore, I do not concentrate on the normative issue of whether Islamic laws as integrated in state governance are the genuine sharia or whether it is even feasible for a state to enshrine principles of traditional Islamic law.99 Neither am I seeking to delve into elaborate discussion of the terms “Islam” and “Islamic,” leaving this arduous task to other scholars.100 While this study acknowledges a strong debt to the scholarship that addresses these important questions, I  believe that there is an added empirical benefit in not giving up the term “Islamic law states” altogether. In his study of Islam, Ahmed writes, “Any act of conceptualizing any object is necessarily an attempt to identify a general theory or rule to which all phenomena affiliated with that object somehow cohere as a category for meaningful analysis—​whether we locate that general rule in idea, practice, substance, relation, or process.”101 While this book’s goal is not to ponder all the prevalent conceptualizations and definitions of Islamic law, I believe that the ILS category provides a useful linking nomenclature between the Islamic legal tradition and international law by giving a flexible comparative space. The ILS category offers a framework to capture Islamic law as a single legal tradition while recognizing multiple local variations in specific countries at specific times. In other words, the ILS category constitutes a useful construct for systematizing this diversity in terms of the Islamic law–​secular law nexus, and then, in turn, the relation of these multiple nexuses to international conflict management.102 It allows me to empirically investigate that which links which presents “a structure for Islamic constitutionalism that is inspired by pre-​modern Islamic jurisprudence and Muslim history, yet designed for contemporary realities.” See also Hamoudi (2010a) which tackles the relation between sharia and the concept of state in the context of his critique of Feldman (2008). See also Fadel 2009. 98 Hallaq 2009a, 2013; Hodgson 1974. See also Ahmed 2016; Asad 2009; Aydin 2017; Hefner 2016. 99 See, for instance, Platteau 2017. It is also crucial to recognize that historically in the Islamic milieu there was a disconnect between the locus of legal authority and the state per se. As Hussin (2016, 24) adequately put it, “the assumption that the character of a Muslim state is determined by its ability to deliver Islamic law, and that Muslims themselves generally should look to the state for Islamic legal goods, is relatively recent and entirely modern.” 100 The literature in Islamic studies has faced a great challenge in providing a coherent conceptualization of these terms. For instance, Ahmed (2016, 5) emphasizes the importance of understanding and conceptualizing Islam as a “historical and human phenomenon.” See also Hodgson (1974) for a much earlier scholarly treatment of these notions. See earlier note 37 for Hodgson’s treatment of the terms “Islam” and “Islamicate.” 101 Ahmed 2016, 6. 102 This study builds on scientific efforts to systematize the diversity within the Islamic milieu, such as the “Sharia and national law” project directed by Otto (see Otto 2007, 2010a).

 

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all the ILS together, while allowing for variance and complexity on the state level. Hopefully throughout this book it becomes apparent that Islamic law is quite different from what law is in Western legal traditions. The Islamic legal tradition has a remarkably fluid yet resilient structure that recognizes overlapping roles of custom, law, religion, and morals. To reiterate a point I made earlier, in no way does the ILS category suggest that sharia is to be reduced merely to a system of laws.

Other Classifications The ILS category differs from other seemingly parallel concepts or definitions, such as Islamic states, Arab states, or Muslim states, all of which highlight a particular defining characteristic of “Islam-​ness.”103 There is little, if any, consensus on the exact meaning, connotation, and boundaries of these categories. All of them draw on a subset of features along cultural, religious, political, or linguistic lines, and there is considerable overlap between them. The concept of a Muslim state is most frequently understood to describe states where Muslims constitute the majority of the population. According to Berger, there are about fifty states meeting this criterion.104 Otto uses a slightly more precise yardstick, defining a Muslim country as a “country of which at least 55% of the populace is Muslim.”105 This definition stresses the composition of the population rather than sharia’s influence on domestic law—​the central focus of this book. Many countries can be subsumed into the Muslim state classification—​those that base their domestic laws on Islamic principles, such as Saudi Arabia or Iran, and those in which the domestic legal system has distanced itself from traditional Islamic law. For instance, although fitting in the Muslim states category, Turkey, despite its overwhelmingly Muslim population, cannot be classified as one of the ILS as defined in this book because its official legal system is secular.106 Indeed,

103 For an excellent discussion of “Muslim state” and “Islamic law,” see Hussin (2016). 104 Berger 2008, 119. 105 Otto 2010b, 28. Fish (2011, 18) defines a Muslim country as a country which “must be at least 55 percent Muslim according to the ARDA as well as a preponderance of other available sources.” ARDA is the Association of Religion Data Archives. 106 The Turkish Civil Code of 1926 was a clear effort at departure from traditional Islamic law. Although it does not entirely adopt a single European model of codification, it does move away relatively abruptly from fundamental Islamic institutions, procedures, and practices. The civil law approach also dominates Turkey’s judicial structure, which is composed of “multiple supreme courts” (Varol, Pellegrina, and Garoupa 2017, 192). According to Wing and Varol (2006, 3), “the Turkish version of secularism is arguably the strictest version of secularism implemented by any nation.” More generally, the scholarship recognizes that a presence of a secular legal system constitutes an indispensable element of a secular regime/​polity (see Wing and Varol 2006).

 



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notwithstanding Turkey’s Ottoman past, this country’s constitution and its legal system embrace a secular approach to governance. Alternatively, the term “Muslim state” has been used in the context of countries where Islam and Islamic law play a significant role in society, culture, or even politics.107 To remedy the fuzziness of the Muslim states category, some scholars use the more precise term of “Muslim majority states.”108 In some scholarly writings, one comes across the term “Islamic state”—​a highly contested phrase which usually refers to a state with a particularly religious population.109 Yet, even when the majority of the population adheres to Islam, what makes a country Islamic? Is it the character of the domestic legal system? Or perhaps it is the depth of the population’s religiosity, which is inherently difficult to grasp or measure. As Berger suggests, “labelling a state ‘Islamic’ therefore depends on various factors, and is mostly in the eye of the beholder.”110 Expanding its scope and meaning, the term “Islamic state” has been used in the scholarship to denote countries with distinctively Islamic governments.111 Feldman, for example, describes an Islamic state in a historical sense as one where “a Muslim ruler governed according to God’s law, expressed through principles and rules of the shari’a that were expounded by scholars.”112 It is the reliance on Islamic law, as expressed in state structures, that, according to Feldman, characterizes an Islamic state. Indeed, at times the domestic role of sharia in some ILS is formally echoed in the constitution; a few countries officially describe themselves as Islamic, declare Islam the religion of the state, or recognize sharia as an integral part of state law.113 But such official declarations may not accurately reflect the actual presence of sharia in a state’s domestic legal system beyond a constitution. Furthermore, there is a substantial variance in the relationship between religious and secular law across ILS that may officially self-​categorize themselves as Islamic. The Islamic Republic of Pakistan has been the official 107 See Baderin 2008, xiv. According to Hussin (2016, 14), the main feature of present-​day Muslim states “is the role played by Islamic law that is represented in the national legal system largely by Islamic family law, or personal status law.” 108 See, for example, Emon 2012a. 109 For an interesting discussion of the concept of dawla in the context of Muslim polities, see Al-​ Barghouti 2008. It is important to note that when used in the medieval period, “dawla” referred to a dynasty rather than a state as we understand it today. 110 Berger 2008, 110. 111 See Berger 2008. 112 Feldman 2008, 2. 113 For example, the Islamic Republic of Mauritania, Islamic Republic of Afghanistan, Islamic Republic of Pakistan, and Islamic Republic of Iran. Saudi Arabia’s Basic Law of Governance declares in Article 1 that “the Kingdom of Saudi Arabia is a sovereign Arab Islamic State. Its religion is Islam. Its constitution is Almighty God’s Book, The Holy Qur’an, and the Sunna (Traditions) of the Prophet (PBUH).”

 

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name of Pakistan since its 1956 constitution, but sharia’s place in the Pakistani legal system is quite different from that of Saudi Arabia, whose 1992 Basic Law of Governance declares the Kingdom a fully sovereign Arab Islamic State. The category of Arab states as used, for example, by Burgis places emphasis on ethnic and linguistic features of the Arab people.114 This classification can be arguably more sharply defined in a political sense by the membership in the Arab League.115 Arab states are definitely a central part of the ILS category, but there are important non-​Arab countries where sharia’s creeds trickle into constitutions and laws of lower status. Domestic legal systems of non-​Arab ILS included in my study—​Afghanistan, Bangladesh, Brunei, Gambia, Indonesia, Malaysia, Nigeria, Iran, Maldives, and Pakistan—​have all historically experienced legal influences of Islam. Thus, these non-​Arab ILS are an integral part of my categorization and provide unique insights into the relationship between domestically anchored precepts of Islamic law and international law. For example, in Indonesia, religious, sharia-​based courts constitute an important part of the legal landscape and are among the busiest courts in the country, covering primarily Muslims’ marriage, inheritance, wills, and sharia economy issues.116 The Province of Aceh in particular has pushed for an increased sharia presence in its official laws via regional regulations, qanun, which contain Islamic attire requirement, family laws, and sharia-​inspired criminal laws.117 The situation is similar in Malaysia, where Islamic law is administered mainly on the level of individual provinces, covering Muslims’ personal matters like marriage, inheritance or children custody rights, some criminal matters, and religious revenue. In fact, according to the Malaysian Constitution, the states and territories have the right to decide which interpretation of Islamic law to follow.118 Malaysian sharia courts play a key role in the society.119 The Taliban rule in Afghanistan, which continued from the mid-​1990s to 2001, consolidated this country’s Islamic identity. The 2004 constitution stipulates that in situations where there are no constitutional provisions and no other laws regarding a case,

114 Burgis 2009a. 115 Arab League members include Algeria, Bahrain, Comoros, Djibouti, Egypt, Iraq, Jordan, Kuwait, Lebanon, Libya, Mauritania, Morocco, Oman, Palestine, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, the United Arab Emirates, and Yemen. See the League of Arab States website, http://​www.lasportal.org/​. 116 Sharia law is handled by the Court of Religion. In 2006, this court expanded its jurisdiction to cover sharia economy (see Otto 2010c). 117 Otto 2010c. 118 Shuaib 2012. 119 The 1988 Constitutional amendment significantly restricted the jurisdictional scope of the Malaysian civil courts in the context of sharia courts’ rulings. To be more precise, sharia courts’ prerogatives were extended, especially in the area of personal law (Harding 2010).

 



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the courts shall seek the justice in the spirit of the Hanafi jurisprudence.120 Sharia has a strong influence on many aspects of the domestic legal system, including the civil law and the criminal law. Courts base their decisions on a mix of customary, sharia, and secular law.121 Consequently, it is evident that an in-​depth study of sharia’s presence in legal systems must include states such as these. Finally, some studies focus on the Middle East, understood as the geographical area stretching from Morocco to Afghanistan.122 However, opinions regarding the exact boundaries of the Middle East vary. Mallat, for example, uses this term to denote “the area extending from Morocco and Mauritania on the Atlantic, to Afghanistan and Pakistan in Asia, including the twenty-​two Arab countries which are formally members of the Arab League in Asia and Africa, in addition to Palestine-​Israel, Turkey, and Iran.”123 Afghanistan and Pakistan are considered by some scholars to be outside the Middle East, owing to their strong geographical, historical, and cultural ties with South Asia. While some define the Middle East based solely on geographical factors, others prefer instead to stress the role of the Muslim religion, which propelled Arab expansion and settlement.124 When the average person speaks of the Middle East today, the implied meaning behind the term is often the Arab world, which includes the majority, but usually not the entirety, of the Middle East’s territory.125 Again, the Middle East classification excludes key ILS located outside of this geographical region. Although states of the Middle East have been entangled in several interstate disputes providing a wealth of information on conflict management, inclusion of non–​Middle Eastern ILS allows me to examine compelling cases that capture the intricacy of the Islamic law–​international law relationship.

The Focus on Law The central reliance on domestic legal features and not exclusively on other characteristics of a society or its governance is particularly crucial in the context of this book’s focus: consonance and dissonance between Islamic law and

120 2004 Constitution of Afghanistan, Article 130. 121 Yassari and Saboory, 2010. 122 Allain 2004, 4. Allain notes that even with regard to the Middle East category, scholars have differing opinions as to which countries should or should not be included. For example, there is considerable disagreement whether Turkey, Iran, Algeria, and Morocco should be considered part of this classification. 123 Mallat 2007, 129 124 Allain 2004. 125 See Keddie (1973) for an in-​depth discussion of the Middle East category.

 

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international laws.126 My theory draws a direct link between laws within states and laws regulating interactions between states. Aforementioned categories such as Arab states, Islamic states, and Muslim states lack conceptual precision for the purpose of this project and are empirically noisier, rendering themselves unhelpful for theory-​generating purposes. Geographic location, membership in the Arab League, religiosity of the population, or the language spoken—​by themselves—​may not have much to do with the substance of domestic laws. It is the relationship between domestic laws and international laws that raises the issue of normative compatibility. The ILS category offers a degree of analytical clarity and allows me to address the intricate connection between secular laws and religious laws within the ILS, and how these specific domestic legal configurations shape ILS’ preferences with respect to international conflict management venues. It is domestic law, I argue, that opens and closes paths to international law, much more so than other features of state governance or a society. The demographic element of the ILS category—​at least 50 percent of the population is Muslim—​measures the scope of sharia’s application. In an important way, it captures the actual extent of Islamic law’s reach, because in most cases, the non-​Muslim part of the population is not bound by sharia. All ILS share legal affinity, that of sharia, which is too important to be brushed aside on account of doctrinal, cultural, linguistic, or geographical differences among these countries. While many such differences are indeed real, the unifying force of Islamic law is one to be reckoned with. The law’s religious nature binds all ILS together.127 As Schacht wrote, “the central feature that makes Islamic religious law what it is, that guarantees its unity in all its diversity, is the assessing of all human acts and relationships, including those which we call legal, from the point of view of the concepts obligatory/​recommended/​indifferent/​reprehensible/​forbidden.”128 This book embraces the diversity of the ILS category while simultaneously emphasizing the coalescing effect of the Islamic legal tradition. The ILS category centers on Islamic law and its obligatory application, not on Islamic religion. But, since Islamic religion is strongly interconnected with Islamic law, a few words about religion are warranted. Religious, cultural, and moral factors are sometimes considered to be separate from the domains of 126 It is also crucial to acknowledge empirical efforts at capturing a general relationship between religion and states. For instance, Fox (2015) presents a comprehensive RAS2 dataset designed to code government religion policy. This dataset is constructed to “convert actions taken by governments into variables suitable for quantitative analysis” (p. 9). It spans the 1990–​2008 time frame for 177 states. Most importantly, Fox’s data goes beyond laws and codes “policies, laws, and actions equally” (p. 11). Consequently, the RAS2 dataset has been constructed with a relatively broad scope in mind. See my empirical chapters for more discussion. 127 For an interesting categorization of the Arab Middle Eastern states, see Elsaman 2011. 128 Schacht 1964, 200.

 



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international relations and international law. According to some, attempting to understand states’ actions via religion-​based arguments is not meaningful since religion does not factor into calculations of a self-​interested rational actor.129 Religion complicates the way that we see the world and may simply “disrupt the notions of efficient causality favored by many political scientists.”130 The ILS category remedies such concerns: it allows religious tenets to be captured in law—​a tangible concept.131 Although I present and examine key characteristics of Islam, I do so via the filter of concrete legal institutions.132 The balance of religious laws and secular laws defines each of the ILS’ domestic legal systems. Domestic legal systems, in turn, explain ILS’ preferences and thus, international outcomes. As with any category imposed on a collectivity of states, there are considerable gray areas at the edges of ILS. It is a human construct. Laws move across borders and domestic legal systems change over time. Any distinctions are in some sense subjective, perhaps even arbitrary, and are themselves the artifact of state governance.133 These weaknesses notwithstanding, I hope that presenting a 129 See Shakman Hurd 2015 for an excellent review of the literature on the role of religion in the study of international relations. Numerous recent studies are bringing religion, religious motivations, and religious actors back into the study of interstate violence, international history, constitutionalism, and conflict management (Ahmed and Ginsburg 2014; Fox 2015; Hassner 2009, 2016; Philpott 2007, 2012; Price 1999; Toft, Philpott, and Shah 2011). 130 Shakman Hurd 2015, 28. 131 Focus on law in the context of the ILS category is crucial because it is law, as dictated by the modern nation-​state, that has the power to give a voice to elements of Islamic law—​however interpreted—​in official governance. The result, as Hamoudi (2010b, 294) asserts, is a “broad phenomenon of legal selectivity that effectively recognizes the primacy of the state to determine when God’s Law shall be used, and when it shall be cast aside for a favored alternative, more often than not a legal transplant from Europe.” 132 I do so, however, keeping in mind that often it is difficult to discover the exact boundaries between religion and law, especially in the context of customary norms (see Appleby 2000). See also Fox (2015) for an excellent empirical effort at coding government religion policy. 133 There are certainly states not included in my ILS category that attempt to implement aspects of sharia in their laws but, at the same time, these efforts do not impact a substantial segment of the legal systems (the benchmark for the ILS category). Alternatively, the population of these states fails to reach the 50 percent benchmark. For example, in Ghana, sharia courts have jurisdiction over Muslims in matters of personal status, but sharia is regarded only as a variation of customary law (Essien 1994). Ghana’s 1992 Constitution speaks directly about customary law as consisting of “the rules of law, which by custom are applicable to particular communities in Ghana” (­chapter 4, Article 11[3]‌). Kenya’s 1969 Constitution dispatches matters of personal status, marriage, divorce, and inheritance to Kadhi courts in cases in which all the parties profess the Muslim religion. Although there is a movement to introduce an appeals process to the Kadhi court system, at present the cases flow into the Kenyan High Court. Moreover, the Kadhi courts exist and operate “under the close supervision of the secular state” (Hirsch 2010, 314). Similarly, in Zanzibar (a part of Tanzania) Kadhi courts constitute an important part of the judicial system holding jurisdiction over Muslim personal status issues, marriage, divorce, and inheritance in cases where the parties are Muslim. The Kadhi courts were established by a sub-​constitutional law, the Kadhi Courts Act of 1985. However, Kadhi courts

 

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more sharply delineated ILS category will encourage the scholarship to move beyond the usual classifications employed to describe countries where sharia plays a societal role. In a way, the ILS category is a new conceptualization that reflects these states’ rich legal diversity. There are myriad crucial topics awaiting scientific exploration in the context of linkage between sharia and international law.

Islamic Law States: Examples The ILS category includes states where the overwhelming majority of the legal system is charged with obligatory implementation of sharia, as well as states that limit the direct, obligatory influence of sharia to a part of their official laws, such as personal law or criminal law. The ILS category also includes some states that delegate decisions about sharia’s presence in governance to the state’s administrative subunits, such as Indonesia, Malaysia, and Nigeria. Figure 2.1 offers a geographical display of all ILS, and Figure 2.2 provides a listing of ILS’ Muslim population (raw numbers and percentages). For the purpose of comparison, Figure 2.2 includes India and Turkey, two non-​ILS with large Muslim populations. When speaking about the Middle East, ICJ judge Awn Shawkat Al-​ Khasawneh noted: “The common history, the challenge of the West, the ambivalent national and sub-​national identities and the subsequent and closely-​related religious revival all attest to a broad cultural homogeneity notwithstanding a mosaic-​like diversity.”134 This statement captures the heart of the ILS category: unity in diversity. Ahmed goes further in proposing that “in relation to Islam, we are actually talking not so much about conceptualizing unity in the face of diversity, but rather about conceptualizing unity in the face of outright contradiction.”135 In making a choice to examine ILS, I have singled out a specific group of states that share enough common features to provide a coherent sample. In all ILS, there is an identifiable segment of the legal system that is charged with obligatory implementation of Islamic law. In all ILS, Muslims constitute at least 50  percent of the population, a benchmark which ensures that sharia’s reach is indeed significant. Comparatively speaking, the Islamic legal tradition is more diverse than other legal traditions because the balance between religious laws and secular laws is subject to frequent renegotiation.136 In the words of Otto, “The position do not exist in Tanzania’s mainland (Makaramba 2010). There are also several non-​ILS that apply sharia on an obligatory basis, such as Uganda, Philippines, and Ethiopia. Yet, these states do not have a Muslim majority population. Thus, the actual scope of sharia’s de jure obligatory reach is limited. 134 Al-​Khasawneh  2014. 135 Ahmed 2016, 72. 136 It is also important to recognize that how Islamic law operates is largely determined by the local context. As Hussin (2016) argues, variations in the legal language and legal institutions can be largely traced to local particulars, and local responses to state power and colonial pressures.

 

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4 2

3

Figure 2.1.  Map of Islamic law states. Note: (1) Bahrain, (2) The Maldives, (3) The Comoros, (4) Yemen Arab Republic (1962–​1990).  The Yemen Arab Republic (YAR) was a state from 1962 to 1990 in the northwestern part of what is now Yemen. During this time period, YAR constitutes an integral part of the Islamic Law States category, as defined here, and it is featured in my data. In 1990 YAR united with the People’s Democratic Republic of Yemen, forming the Republic of Yemen. A version of this figure has appeared in my earlier publication (Powell 2016 and 2018a). 

100,000,000

50,000,000

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ILS 96

Non13

90

90

50 99

100

99 99 99 99 99

99 99 87 61

99 97 97 76 100 77 99 54 90 99 98 70 100 52

India Turkey

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Indonesia Pakistan Bangladesh Egypt Nigeria Iran Algeria Morocco Iraq Sudan Afghanistan Saudi Arabia Yemen Syria Malaysia Tunisa Jordan Libya UAE Mauritania Kuwait Oman Lebanon Gambia Qatar Comoros Bahrain Maldives Brunei

200,000,000

Figure 2.2.  Muslim population in ILS and non-​ILS. Note: Data as of 2010, Pew Research Center (http://​www.pewforum.org/​2011/​01/​27/​table-​muslim-​population-​by-​country/​). The population of the Yemen Arab Republic in 1990 was estimated about 7.2 million (almost 100 percent Muslim); data from CIA World Factbook, 1990. A version of this figure has appeared in my earlier publication (Powell 2016 and 2018a). 

 

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of sharia within national law can be regarded as the outcome of political and bureaucratic competition, clashes and compromise, an outcome that differs in each country.”137 This process introduces variation across time and space in the ILS category.138 In a way, every ILS is a site of well-​established, diverse competing claims about what law is and how an official legal system ought to be. From a historical perspective, the gradual weakening of traditional Islamic law was largely caused by the emergence of a Western-​educated legal elite, which integrated easily into the newly emerging official legal structures.139 Over time, Islamic jurists largely withdrew from creating law, and the political authorities took it upon themselves to regulate areas where sharia was silent. Extensive codification of the Ottoman Empire is a primary example of this mechanism.140 In most ILS, sharia found its anchor in personal status laws. In contrast, penal law, commercial law, and torts became the regulatory terrain for secular law.141 The ILS category is a spectrum. On one end are states like Saudi Arabia, whose rulers have historically relied on the powerful Wahhabi scholars. When in 1975 King Khalid began his reign, he famously stated that “Islamic law is and will remain our standard, our source of inspiration, and our goal.”142 Each monarch holds the title of the Custodian of the Two Holy Mosques, in reference to the Grand Mosque in Mecca and the Prophet Muhammad’s Mosque in Medina, where he is buried. Though the Saudi 1992 Basic Law of Governance provides a rudimentary constitution-​like framework, King Fahd bin Abdulaziz Al Saud chose the name “Basic Law of Governance” to signal

137 Otto 2007, 149. 138 As Emon (2015, 200) argues, law “is about balancing competing interests of people who have a lot to lose depending on how the law takes shape.” In the context of ILS, this process of “balancing” is reflected in the way that tenets of the Islamic legal tradition inform state governance alongside secular laws. 139 Simultaneously, technical secularized schools were created as an alternative to existing madrasas—​schools and colleges for Islamic instruction. 140 In the Ottoman Empire in the nineteenth century, most important Tanzimat (Ottoman codes and decrees) dealt with issues of constitutional law, real property law, and commercial transactions (Mallat 2007, 121). For a review of the role of religion in the Ottoman Empire and, later, the Republic of Turkey, see, for instance, Wing and Varol 2006. 141 Mallat 2007, 121. For example, the 1804 Code of Napoleon had a long-​lasting influence on the laws of several ILS, most notably Egypt and Kuwait. Interestingly, most efforts at systematic codification of Muslim personal law took place in the late 1990s and early 2000s. For example, until 1997, Kuwait was the only ILS in the Arab Gulf to have a code addressing Muslim personal status law (Kuwait Law of Personal Status No. 51/​1984). For a more detailed discussion, see ­chapter 3, the section on partial codification. 142 Andersen, Seibert, and Wagner, 2009, 143.

 



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that only the Quran as the manifestation of God’s will can be considered the Kingdom’s constitution.143 This view is explicitly reiterated in the Law. Islamic courts have expansive jurisdiction.144 Family and personal laws are not codified, and all cases dealing with marriage, divorce, children, and inheritance are part of the sharia courts’ jurisdiction.145 As Fox (2015) reminds us, the Saudi government “controls all mosques, including private mosques. All imams of these mosques are approved by the government and are employees of the Ministry of Islamic Affairs.”146 Iran’s domestic legal system features a similar entrenchment of sharia principles. During the 1960s and 1970s, the Iranian Shah Mohammad Reza Pahlavi implemented the so-​called White Revolution. Islamic laws were replaced by secular laws in an attempt to Westernize the country. Under the rule of Ayatollah Khomeini, precepts of sharia—​as interpreted by the state—​became the backbone of all laws. By way of illustration, the 1979 constitution mentioned sharia/​ Islam 89 times; the 1989 amended version 209 times. The concept of religious guardianship, velāyat-​e faqīh, constitutes a fundamental basis of the Iranian government, including the judiciary, the legislature, and executive branches. The Guardian Council, consisting of Muslim theologians and jurists, is the most powerful body in Iran and has been endowed with the power to approve or veto all bills passed by the Iranian legislature on the grounds of consistency or inconsistency with Islamic principles.147 It is a “de facto constitutional court.”148 According to the constitution, the chief of the Supreme Court and the prosecutor general “must both be just Mujtahids,” authoritative interpreters of Islamic law.149

143 Article 8 of the 1992 Basic Law of Governance states that “the rule in the Kingdom of Saudi Arabia is based in fairness (justice), consultancy (consultative) and equality, in conformity with the precepts of the Islamic Shari’a” 144 According to the law, these courts “shall apply to cases before them provisions of Shari’ah laws, in accordance with the Qur’an and Sunnah of the Prophet” (Law of Procedure before Shari’ah Courts, Article 1, Royal Decree No. M/​21, 20 Jumada I, 1421 [August 19, 2000]). Sharia directly governs the requirements for judicial appointments, as stipulated in the 1975 Law of the Judiciary, Article 37. I discuss in detail these requirements in c­ hapter 3, which focuses on the similarities and differences between Islamic law and international law. 145 Van Eijk 2010. 146 Fox 2015, 45–​46. 147 This inherently religious body can also block certain candidates from running in legislative or presidential elections. 148 Hirschl 2010, 37. 149 Article 162. Interestingly, the 1979 Iranian Constitution (with amendments through 1989) prohibits the judges from executing laws, such as regulations or statutes, that are in any way in conflict with “the laws or the norms of Islam, or lie outside the competence of the executive power” (Article 170).

 

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Mauritania, where about 99 percent of its population of roughly 3 million is Muslim, officially embraces its Islamic heritage. The constitution declares that Mauritania is an Islamic Republic; Islam is the official religion of the people as well as the state itself.150 There is only one court system, and it operates on the basis of sharia. Mauritania’s High Council of Islam is composed of six imams who determine whether laws are in conformity with Islam.151 Likewise, Islam is deeply ingrained into the laws of Qatar, where the sharia court system—​while based on traditional Islamic precepts—​remains under control of the government.152 Granted, Qatar as a major regional economic player richly endowed with natural gas and oil reserves has undergone a considerable economic as well as sociocultural liberalization. This process has affected important parts of the Qatari domestic legal system. These changes notwithstanding, substantial parts of the Qatari legal system are charged with implementation of sharia. The 2004 Qatari Constitution declares that “Qatar is an independent sovereign Arab State. Its religion is Islam and Shari’a law shall be a main source of its legislation.”153 The Emir is required to take a holy oath to God, in which he promises to respect sharia law.154 A similar oath is required from the Qatari Shura Council, the Ministers, and the Prime Minister. Islam’s influence also runs deep outside the constitution. Sharia courts have administered justice to the Qatari people before the establishment of a formal state-​run legal system. The Sudanese legal system is a mixture of common law inherited from its colonial past, some socialist legal principles, and Islamic law.155 Sudan bases a substantial part of its official legal system on sharia.156 Traditionally, sharia has been listed in the Sudanese Constitution as the main source of legislation.157 Article 35 of the 1998 constitution stipulated that every citizen of the country must

150 1991 Constitution of Mauritania, amended in 2012, Article 5. 151 Janin and Kahlmeyer 2007, 151–​152. 152 Qatar utilized a dual court system with sharia courts and secular adlia courts, both of which have quite an elaborate multitiered structure. For example, the sharia court system consists of the Petty Sharia Court and the Grand Sharia Court that handles appeals, but also issues fatwas. Interestingly, the 2004 Qatari Penal Code states that provisions of sharia apply only when the defendant or the plaintiff is a Muslim. 153 Article 1 of the 2003 Constitution of Qatar. The Heir and the Ruler must be a Muslim and born of a Qatari Muslim Mother (Article 9). The constitution was approved by public referendum in 2003 and ratified in 2004. 154 Qatari 2004 Constitution, Article 74. 155 Hirschl 2010, 37. 156 Köndgen 2010. 157 The 1998 Constitution listed Islamic law, consensus of the nation, the constitution, and custom as the sources of legislation (article 65). The Interim Constitution of 2005 acknowledged differences between the Northern and Southern Sudanese states, and limited the influence of sharia as a source of legislation only to the Northern states of the Sudan (article 5).

 



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“defend the country and respond to the Jihad call and national service.”158 The country’s criminal law defines and severely punishes hudud offenses—​crimes directly mentioned in the Quran as breaking the rules established by God himself—​and codifies traditional Islamic notions such as blood money and retribution. 159 The Sudanese Central Bank is based on Islamic principles, and the Zakat Chamber is responsible for collecting a traditional form of income tax for the benefit of the poor (zakat), as mentioned in the Quran. On the other end of the ILS spectrum is Indonesia. Historically, Islamic law played an important role at the local level, where district or village leaders, the penghulu, advised the people on Islamic law. In the nineteenth century, the Dutch colonial government granted jurisdiction over personal matters to religious councils that applied Islamic law alongside customary practices. When Indonesia gained independence in 1945, Islam had no special role in the country’s foundational documents. However, sharia continues to have considerable influence over personal status laws. Today, religious courts are endowed with exclusive jurisdiction over Muslims’ marriage, inheritance, wills, and sharia economy matters.160 In the late 1990s, under the presidency of Bacharuddin Jusuf Habibie, a number of laws were introduced that dealt with traditional Muslim duties, including the hajj (the Muslim pilgrimage to Mecca), almsgiving to the poor, and sharia banking. These laws did not require all citizens to adhere to sharia, but provided a state-​authorized arrangement for Muslims who wanted to fulfill their religious obligations.161 With the autonomy of Indonesian provinces expanded, several districts have enacted Islam-​based local laws.162 In particular, the province of Aceh has legally advocated the resurgence of traditional Islamic law, embracing Muslim attire requirements and family and criminal laws.163 Quite different from Saudi Arabia, where sharia—​in a version adopted by the Saudi leaders—​is the state law, or Indonesia, where the constitution does not mention Islam, most ILS find a middle ground between religious laws and secular laws. Many contemporary ILS follow the well-​established trend to limit the sharia courts’ jurisdiction to personal cases dealing with property, inheritance, 158 Interestingly, the jihad call has been removed in the 2005 constitution. 159 The Criminal Act of 1991 (article 3)  lists the following hudud offenses:  drinking alcohol, theft, apostasy, unlawful sexual intercourse, unproven accusation of unlawful sexual intercourse. 160 Religious courts continue to have busy dockets, and usually preside over more cases than Indonesia’s secular courts. 161 Salim 2003, 228. Additionally, in 1991 Islamic scholars and judges drafted the Compilation of Islamic Law with the goal of introducing uniformity in the usage and application of Islamic law. The compilation regulates mainly issues of a civil nature, specifically marriage, charitable trusts, and inheritance (Cammack and Feener 2012). 162 Parsons and Mietzner 2009. 163 For more discussion of this interesting topic, see Feener 2013, Hirschl 2010, and Otto 2010c.

 

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marriage, and divorce.164 Accordingly, civil codes remain partially faithful to sharia principles.165 At the same time, however, important parts of domestic legal systems are regulated by secular laws. For instance, Bahraini Constitutions (1973, 2002) establish sharia as a main source of law. The 1971 Judicature Law dictates that judges are to refer to sharia for matters not included in the written codes. However, like many of the Gulf states, Bahrain employs a dualistic court system where sharia courts and secular courts have separate jurisdictions. Sharia courts adjudicate on Muslims’ personal status with the exception of estates. Secular courts decide on matters of commerce and civil cases of non-​Muslims.166 Moreover, the most recent constitution introduced a Higher Judicial Council charged with oversight of all the courts. Morocco’s legal system, although based on Western principles in many respects, continues to draw on sharia in several areas. The country’s 2011 constitution underlines the “moderate Muslim religion” and “the tolerant principles, precepts and designs of Islam.”167 At the same time, the constitution forbids any constitutional revisions that would challenge the Muslim faith.168 Despite significant reforms of family law in 2004, the Moudawana—​the Moroccan family code—​harks back to Quranic creeds.169 Islam has left noticeable traces in property law, as well as criminal law and procedure.170 The domestic legal system of the United Arab Emirates balances Islamic law with secular law in an interesting way. Like many ILS located in the Gulf, the Emiratis have been quite successful in solidifying an economic order based on modern legal Western principles, simultaneously delegating sharia to other areas of law. According to the constitution, “Islam is the official religion of the 164 According to Hussin (2016, 15), in the developing colonial state, personal status law “served as a critical venue for the articulation and resolution of disputes” in the context of the varied understandings of ethnic identity, Islam, and law. 165 For example, the Hanafi Ottoman family code promulgated in 1917 still regulates familiar relationships for the Muslim population of Lebanon ( Janin and Kahlmeyer 2007, 148). 166 Kritzer 2002, 114–​115. 167 2011 Constitution of Morocco, Articles 1 and 41, respectively. 168 2011 Constitution of Morocco, Article 175. Additionally, no member of the parliament can express an opinion that would challenge either the monarchy or Islam (Article 64). 169 Buskens 2010. Similarly to the constitution, in its Preamble, the Moudawana acknowledges its conformity with “Islam’s tolerant rules and exemplary purposes.” 170 The Moroccan criminal code, although largely inspired by French law, includes articles that explicitly or implicitly draw on Islamic law. For example, it is illegal to publicly disrespect the rules of fasting during Ramadan, or attempt to convert a Muslim to another religion. Several articles also draw on the spirit of Islamic law, making “the corrupting of Islamic values with regard to family life and honour punishable” (Buskens 2010, 123). Although property and real estate laws substantially imitate French law, in reality a large percentage of land and other immovable property falls under Islamic as well as customary law, since an overwhelming portion of immovable property in Morocco (90 percent) is not registered (Buskens 2010, 124).

 



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Union,” and sharia “shall be a main source of legislation.”171 The ambiguity of this phrasing has triggered an ongoing debate among Emirati jurists. Those who embrace a more traditional view interpret this article as elevating sharia above other sources of law such as custom and written laws. Others believe sharia to be on equal footing with the remaining sources.172 Emirati federal courts apply Islamic law, federal laws, custom, and general legal principles that must not conflict with sharia.173 Several provisions of the Emirati Civil Code mention Islamic law and its spirit, especially in the context of sovereignty, marriage, inheritance, freedom of trade, and private ownership. Article 3 of the Code prohibits any laws that “conflict with the definitive provisions and fundamental principles of the Islamic Shari’ah.”174 Likewise, contemporary Kuwait balances Islamic law with secular law. The 1962 constitution stresses that sharia is a main source of legislation, Islam is the religion of the state, and the Heir Apparent must be “a legitimate son of Muslim parents.”175 At the same time, however, the constitution ensures religious freedom provided that “it does not conflict with public policy or morals.”176 In 1980, Kuwait promulgated a new civil code, which directs judges to use custom and Islamic jurisprudence in the absence of applicable written laws.177 Matters of personal status, including marriage, custody, and inheritance, are governed by Islamic law.178 Interestingly, Kuwait does not embrace the sharply delineated secular courts/​sharia courts dichotomy present in many ILS.179 Instead, Muslims’ personal status disputes are adjudicated by sections of civil courts designated for hearing such cases. In such instances, the courts rely on codified Sunni or Shii law, depending on the litigant’s beliefs. Many provisions of the Kuwaiti civil code stem from creeds of sharia and can be supported by Islamic jurisprudence.180 171 1971 Constitution of the United Arab Emirates, Article 7. 172 Al-​Muhairi  1996. 173 United Arab Emirates Federal Law No. 6/​1978, Article 8. 174 Article 3 of the United Arab Emirates Civil Code. 175 1962 Constitution of Kuwait, Articles 2 and 4. 176 1962 Constitution of Kuwait, Article 35. 177 While adjudicating, judges may be guided by the principles of sharia, but their application is not obligatory. In the process of compiling a new civil code, the Kuwaiti scholars and lawyers followed closely the Egyptian civil code of 1949. Interestingly, Kuwaiti judges consult at times Egyptian law books and treatises and may cite Egyptian courts’ decisions (Kassim 1994, 255). According to the US Embassy in Kuwait, the legal system of Kuwait “is based on Islam and is codified into an ‘Islamicized’ Napoleonic code” (US Embassy website, https://​kw.usembassy.gov/​u-​s-​citizen-​ services/​local-​resources-​of-​u-​s-​citizens/​family-​law-​kuwait/​). 178 According to the Kuwaiti Constitution, Article 18, personal inheritance matters fall under the jurisdiction of sharia. 179 Abdul Reda 1991. 180 Kassim 1994, 256. The Kuwaiti family code, enacted in 1984, is composed of 347 articles, and it is based on the Maliki school of Islamic jurisprudence. For example, furthering sharia’s precepts,

 

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Secular laws dominate in taxation, labor, and company law. Interestingly, in 2005 Kuwait introduced a law that grants women active participation in politics by exercising their right to vote and run for parliamentary seats. At the same time, however, the law provides that women candidates must comply with the provisions of sharia. Kuwait’s Constitutional Court in its 2009 judgment rules that women are not required to wear the hijab headscarf while in parliament.181

Islamic Law in the Official Legal System The fact is that sharia, in some form, version, or fashion, has been integrated into the domestic legal systems of all ILS.182 In most—​if not all—​of these societies, it is in the interest of the state to charge an identifiable segment of the legal system with obligatory implementation of sharia. This interest lies in appropriating the legitimacy of religious norms strongly embedded in the society itself.183 As Imam Ibrahim Amin noted, “The function of law, as understood conventionally, is to protect, promote, or preserve moral norms that are already subscribed to by a society. It is not a mechanism for the introduction of new moral norms. As moral norms develop, evolve, or change within a society, law follows to protect and preserve these new boundaries.”184 The state, as a political construct with policy objectives, seized this opportunity. As a result, parts of sharia were reframed and reinterpreted to further the state’s own interests.185 The process of bringing Islamic law, however interpreted, into state institutions was complicated and demanded interaction between multiple sources of authority within each of the ILS. As Hussin argues, “The connection of the Muslim state as a system of government and the Muslim state as a condition of individual and social being through law is a function of the complex interplay between the growth of state aspirations and abilities, the centrality of law in colonial administration, and the strategies of Muslim elites.”186 charging interest on money loans or for delay in payment is proscribed (Article 305 Kuwaiti 1980 Civil Code). Remarkably, however, charging interest is permitted in the case of commercial loans. 181 “Headscarf Not a Must for Female Lawmakers in Kuwait,” Gulf News, October 28, 2009. 182 In the words of Hirschl (2010, 3), some of these states as constitutional theocracies “do more than grant exclusive recognition and support to a given state religion: laws must conform to principles of religious doctrine, and no statute may be enacted that is repugnant to these principles.” 183 See Bowen 2003, 18. He writes in the context of Indonesia that “it is not that the state gives the normative force of law to Islam and adat; it is rather than the state attempts to appropriate their specific normativities to its own institutions.” See also Platteau 2017. 184 Author interview with Imam Ibrahim Amin, Oxford Centre for Islamic Studies, Oxford, UK, May 16, 2016. 185 For more discussion of this topic, see Hirschl 2010, 57. 186 Hussin 2016, 24.

 



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In the scholarship and policy circles, there is considerable disagreement about a “correct” balance of religious laws and secular laws within any of the ILS.187 Islam’s foundational sources are silent on the matter. As Asad notes, “the political ordinances of Qur’an and Sunnah  .  .  . do not lay down any specific form of state: that is to say, the shari’ah does not prescribe any definite pattern to which an Islamic state must conform, nor does it elaborate in detail a constitutional theory.”188 Thus, there is a broad range of legal arrangements present across the ILS category—​both in space and time. The birth of Islam brought an idea of a polity where sharia was firmly implanted into governance. Muhammad was a religious and a political leader, and the Quran contains numerous legal stipulations. After Muhammad’s passing, the tradition of a combined religious-​ political headship continued—​albeit imperfectly—​via the institution of a caliph.189 Shortly thereafter, however, as Lapidus notes, “most Muslim societies did not conform to this ideal, but were built around separate institutions of state and religion.”190 Muslim scholars—​as indispensable community leaders—​ interpreted and extrapolated legal rules, and thus were considered “custodians and teachers of Islam.”191 The caliphal regime concentrated on political, military, and administrative power, despite the fact that the rulers often drew on Islam to strengthen their authority.192 The balance between religious and secular laws has become an even more important issue since the Islamic milieu came into contact with the European nation-​state system.193 With time, many ILS introduced legislation that welded together Western institutions and Islamic law. The implementation of Western-​style codes entailed 187 See, for instance, An-​Na‛im (2008, 1), who argues that “in order to be a Muslim by conviction and free choice, which is the only way one can be a Muslim, I need a secular state. By a secular state I mean one that is neutral regarding religious doctrine, one that does not claim or pretend to enforce Shari‛a—​the religious law of Islam—​simply because compliance with Shari‛a cannot be coerced by fear of state institutions or faked to appease their officials.” 188 Asad 1961, 22. 189 In the Arabic language, the literal definition of “Khalifa” is “one who replaces.” It is most commonly used as term for a Muslim ruler (see Feldman 2008, 23–​24). But see also Lapidus (1975) who makes the case that in the early ninth century a clear separation occurred between the religious authority and the political authority. See also Eickelman and Piscatori (1996). 190 Lapidus 1996, 24. 191 Lapidus 1996, 10. 192 In the caliphal regime, judges applied God’s laws as expounded upon by the scholars. Scholars had for the most part a “monopoly over the exposition of the law,” but it was the state that implemented the creeds of sharia (Weiss, 2006, 16). This division between the religious and secular in the Islamic milieu created an ongoing struggle between Muslim scholars and the political leaders, the caliphs (see Lapidus 1996). 193 Halliday 2005, 88. See Quraishi-​Landes (2015) for a discussion of how colonization and the European nation-​state concept influenced domestic legal systems in the Islamic milieu. See also Hefner 2016.

 

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the partial secularization of law. During times of European colonization, sharia provided a continuous challenge for the colonizers because it offered a parallel, deeply legitimate legal system in the eyes of the people. Strongly anchored in the societal fabric, the Islamic legal tradition constituted a natural point of reference for postcolonial laws. This process is closely connected to what some scholars call a “time paradox,” whereby including premodern sharia norms into modern laws makes the past relevant for building these states’ national identities.194 According to Emon, the incorporation of traditional Islamic law into the domestic legal system is particularly important in societies “arising out of the ashes of colonialism” for the purpose of distinguishing themselves from their former colonizers.195 Consequently, in a way, ILS have been forced to navigate between secular laws and the precepts of sharia. As Hirschl argues, “More often than not, the clash between these conflicting visions results in fierce struggles over the nature of the body politic and its organizing principles.”196 In other words, the institutional structure as well as the legal structure of the state is deeply affected. The result is the intricate diversity in the ILS category. Overall, there is a well-​ established trend to limit Islamic law’s jurisdiction to personal cases dealing with property, inheritance, and marriage. Remaining legal areas are often regulated by secular law, with secular courts having jurisdiction. In a way, many ILS insulate or exempt parts of their domestic legal systems from religious precepts. State courts are usually more internally coherent, operate according to standardized procedures, and this offers consistency in application of the law. Yet Islam appears in an overwhelming majority of ILS’ constitutions. Perhaps at times these references may be cosmetic, but their overall presence is clear. In some way, the constitutional mentions of Islam and Islamic legal institutions provide means for self-​ascription. By its nature, a constitution as a supreme law of the land hovers over all other domestic laws, providing a pinnacle point for the entire domestic legal system. A  constitution brings together “everything that moves under its jurisdiction.”197 The power of a constitution cannot be overestimated. But, as the literature argues, constitutions are “social devices that structure the creation of rules,”198 providing focal points for a society.199 In the specific case of ILS, scholars have recognized that the domestic role of Islamic faith is “formally reflected in the constitutions.”200 There is an important 194 Emon 2008, 259; McClintok 1993. 195 Emon 2008, 259. 196 Hirschl 2010, 5. 197 Hirschl 2010, 72. 198 Ginsburg 2012, 4. More broadly, see Ginsburg, Elkins, and Blount 2009. 199 At the same time, I also recognize that a constitution frequently emerges as an imperfect amalgamation of many drafters’ preferences (see, generally, Ginsburg and Huq 2016). 200 Baderin 2008, xiv.

 



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assumption behind constitutionalism suggesting that a rational and careful institutional design, as expressed in a constitution, can accomplish a desirable outcome.201 It can not only reflect values present in a society, but can also generate “meaningful incentives for people (or groups) to behave in a desirable way.”202 However, constitutions are at best a first step in creating a domestic legal system. The scholarship shows that constitutional provisions may sometimes not adequately reflect societal preferences or practices, especially at times when the practical force of a constitution is compromised by an arbitrary political system.203 It is also crucial to recognize that constitutions, for a variety of reasons, may not respond in a quick manner to societal, political, cultural, or economic changes.204 Indeed, there are some provisions in any constitution that are purely aspirational statements. Any constitution provides an important backdrop—​however theoretical—​that generates legally grounded constraints on the state and expectations on the part of the citizens.205 But it is the legal system as a whole, beyond constitutions, that determines the size of the gap between legal aspirations and sheer practice.206 It is the legal system as a whole that governs public behavior. It is the legal system as a whole that dynamically changes. In the context of ILS, the domestic legal system in its entirety can either constrain or sustain sharia’s de facto role.207 The reality is that sharia’s influence 201 For an interesting analysis of how constitutional rights may translate into practical respect for these rights, see, for instance, Chilton and Versteeg 2015; Davenport 1996. See Varol (2016) for a discussion of how changes in constitutional norms often entail high implementation costs. See also Hamoudi 2014. 202 Hirschl 2010, 73. 203 Przeworski, Asadurian, and Bohlken 2012. In a similar way, Otto (2007, 2010b) argues that in order to get a fuller picture of sharia’s role in a society, one must empirically investigate the legal systems beyond constitutions. According to Otto (2007, 146), the constitutions usually mention Islam or Islamic law as “supreme or basic.” Such a “dualist basic norm” allows for “constant review of national law by sharia standards as well as a continuous review of sharia rules by constitutional standards.” Fox (2015, 204) shows that following constitutional provisions “is not the norm for significant categories of states.” More generally, see Davenport 1996; Goodliffe and Hawkins 2006; Powell and Staton 2009. 204 As Varol (2016, 905)  argues, “Constitutional provisions carry significant historical weight, and the starting point often constrains future choices. Even where the initial constitutional choice is suboptimal or anachronistic, that choice has a profound effect on current behavior.” 205 Constitutional texts, notwithstanding their weaknesses or shortcomings, constitute an important framework for the sub-​constitutional legal system. Constitutions delimit the range of acceptable laws, rules, institutions, and judicial decisions. 206 For instance, Fox (2015) finds that the influence of constitutions, while important, is somewhat limited. Indeed as he argues, “many states engage in religion policies that are at odds with the ideals expressed in their constitutions” (p. 228). 207 As Emon (2008, 260)  argues, “The scope of constitutional argument likely will be limited by the constraining power of the prevailing normative framework for institutions of law and government.”

 

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goes further than official state-​supported laws. Islamic law functions on the local level as customary law, swaying the secular law—​religious law balance toward sharia. Additionally, it is crucial to keep in mind that many ILS have historically streamlined and standardized their constitutional provisions to reflect the Western models.208 Inevitably, it is the conflation of constitutionalism, laws of lower status, and institutions that makes for the character of a domestic legal system. This book explicitly espouses this fundamental reality, and core to my argument, as well as the empirical data, is the balance of secular law and Islamic law in constitutions and beyond. The section that follows presents a series of figures that illustrate the extent to which Islamic law and secular law are present in ILS’ domestic legal systems (1945–​2012).209 Figure 2.3 looks at trends over time in constitutional mentions of sharia/​Islam during this time period, displaying the maximum, minimum, and average number of references. Despite considerable variance, modern ILS do not seem to embrace a more secularized approach to governance. Some constitutions contain limited or no religious references, such as in Lebanon from 1990 onwards, with no mentions of sharia or Islam, and likewise in Indonesia in the 1950s with no mentions of sharia or Islam. In the middle of the spectrum, Qatar’s 2004 Constitution—​ despite this country’s relatively stern legal commitment to sharia in personal laws—​contains only one reference to Islam and three to sharia. Likewise, Yemen’s Constitution as amended in 2001 refers seven times to Islam and five times to sharia. Reflecting its deeply religious character, Saudi Arabia’s 1992 Basic Law of Governance mentions Islam twenty times and sharia fourteen times.210 Iran’s 1979 Constitution with 1989 amendment is by far the most religiously entrenched, with 1 reference to sharia, but 208 references to Islam. And while ILS, just like any other states, are certainly political actors driven by power-​related concerns, they are comprised of uniquely religious societies that expect religion 208 Adaptation of streamlined constitutional provisions can also constitute an effort to send a signal of good intentions to the international community (see Versteeg 2014). 209 To be sure, there are several more general measures that gauge the relationship between religion and the state. For instance, the Religion and State (RAS) dataset (Fox 2008, 2015) codes government religion policy in 177 countries for 1990–​2008. The dataset identifies over one hundred types of state religion policies, such as official religion policy, religious support, religious restrictions, and religious discrimination (see Fox 2015, 4–​5). See also Fox (2008, 2011) for examination of the link between religion’s presence in constitutions and governments’ religion policy in practice. Grim and Finke’s (2011) data on religious freedom constitute another advanced effort at gauging state religion policy. See Sarkissian (2015) for an interesting study and measurement of regulations and restrictions on religion placed by authoritarian states. 210 Interestingly, the Basic Law of Governance is short relative to many other ILS’ constitutions (4,010 words). For comparison, Lebanon’s Constitution as amended in 1990 has 16,172 words and Jordan’s Constitution in the 2011 version has 10,457 words.

 



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ILS Constitutions: Sharia/Islam References

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Figure 2.3.  Sharia/​Islam in ILS’ constitutions.

to have a place in law.211 In this sense, ILS are different from other countries where Christianity, Buddhism, or Hinduism plays an important societal role. In none other are law and religion as deeply interconnected, not only in a theoretical and “in principle” ways, but also tangibly via a domestic legal system. Official state laws assist in the cultivation and safeguarding of religious creeds. Thus, Western models of strictly secular state governance and a potentially religious private domain do not readily apply to many ILS, because sharia—​however interpreted—​enters official legal systems.212 According to Hirschl, in such states religion “is an integral part, or even the metaphorical pillar, of the polity’s national metanarrative.”213 Figure 2.3 tells an important story. First, it seems to question the forces of globalization. ILS may be adapting standardized constitutional provisions originating from the West. Yet, at the same time, Islamic law’s presence does not diminish over time. ILS give the impression of being able to resist the trend of boilerplate legal modernization as they cultivate their own unique legal tradition. In fact, one might ponder whether these constitutional trends actually 211 As Hussin (2016, 192) explains, in the context of Muslims’ response to Western influence and colonization, personal status law, and, in particular, Islamic family law, “became widely articulated as an essential strategy for limiting European incursions into Muslim social, political, and religious life.” 212 Shakman Hurd 2008. 213 Hirschl 2010, 3.

 

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ILS Constitutions: Sharia/Islam References (Relative Counts)

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Figure 2.4.  Sharia/​Islam in ILS’ constitutions, relative counts, 1945–​2012.

signify a backlash against secularization. For example, the religious content of Nigeria’s 1999 Constitution is much higher than that of the 1989 constitution, with mentions of sharia/​Islam leaping from fifty-​five to ninety-​three, despite the fact that the constitution provides that Nigeria is a secular state and bars the government from establishing an official religion. Since 1999, the majority of Nigeria’s northern states have introduced laws that widen sharia’s reach to criminal law, strengthening the historical Muslim control in the northern region. Interestingly, the 1999 constitution is much shorter than its predecessor.214 On a smaller scale, Bahrain’s 2002 Constitution, which replaced the 1973 constitution promulgated shortly after the country’s independence, nearly doubled references to Islam from eight to thirteen and tripled references to sharia from one to three. Some ILS show little variance on constitutional religious references. For instance, none of Indonesia’s constitutions talk about sharia, and the few references to God are all phrased in a general, monotheistic way.215 It is interesting to consider whether these patterns hold when we take into account the changes in length of the constitutional texts. Figure 2.4 plots references to sharia/​Islam in ILS’ constitutions, taking into consideration changes in the

214 The 1999 constitution contains 34,698 words whereas the 1989 constitution contains 54,656 words. 215 Similarly, Jordanian constitutions vary minimally in this regard:  mentions of sharia/​Islam have increased from twelve (1946 constitution) to thirteen (2011 constitutional amendment).

 



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total length (the total word count) of these documents. These patterns indicate that accounting for the changing, usually increasing, length of ILS’ constitutions does not diminish the importance of religious references. References to sharia continue to have an important stronghold in ILS’ constitutions. Holy oaths—​oaths to God—​constitute an important element of the Islamic legal tradition. State officials of some ILS are constitutionally required to take religious oaths before assuming office.216 Such oaths indicate that policymakers are deemed accountable for their actions not only to their citizenry, but most importantly, to God. Iraq’s 1964 and 1970 Interim Constitutions, both of which were deeply ingrained with Islamic principles, required public officials to take religious oaths.217 More recently, the 2001 constitution of Comoros obliges the president and the vice-​presidents of the Union to take holy oaths before the Constitutional Court by the following formula: “I swear to Allah, the Compassionate and Merciful to faithfully and honestly fulfill the duties of my office, to act only in the public interest and in accordance with the Constitution.”218 The 2004 Qatari Constitution requires a similar vow to God from the heir apparent on his appointment.219 Religious vows are a prerequisite for the Algerian president, Syrian president, and members of the High Constitutional Court, Tunisian advisors and deputies, Jordanian president and members of the Constitutional Court, and members of the Yemeni House of Representatives.220 Figure 2.5 charts holy oaths in ILS’ constitutions. Interestingly, we see a stable increase in these references across the Islamic milieu. Several states, such as Iran, Syria, Bahrain, Lebanon, and Kuwait, have kept a holy oath provision in all their

216 Holy oaths appear in ILS’ legal systems outside of constitutions. To illustrate, the 2004 Moroccan Family Code repeats some of the holy oath provisions of the post-​independence version. For example, Article 34, regulating marital disputes over household furnishings, indicates how husbands and wives use oaths to claim items. Oaths are mentioned over twenty times in the 1987 Civil Code of the United Arab Emirates, which stipulates that an oath is a fully acceptable form of evidence to prove a right (Article 112). Oaths are mentioned in the context of property, inheritance, and admission of obligation, and the like. 217 The 1964 Interim Constitution required the president of the Republic and members of the government to take the following oath: “I swear by God the Great that I shall be faithful to my religion, homeland, and nation . . .” (Articles 42, 73). 218 Constitution of Comoros, 2001, Article 13. 219 Constitution of Qatar, Article 10, states the following: “I swear by Almighty God to respect Shari’a law, the Constitution and the law, maintain the independence of the State and safeguard its territorial integrity, defend the freedom and interests of its people, and be loyal to the State and the Emir.” 220 See, for example, Article 76 of the 1989 Algerian Constitution amended in 2008; Article 7 of the 2012 Syrian Constitution; Article 21 of the 1959 Tunisian Constitution (amended in 2008); Article 61 of the Jordanian 2011 Constitution; and Article 160 of the 1991 Yemeni Constitution (amended in 2001).

 

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ILS Constitutions with Holy Oath References

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Figure 2.5.  Holy oath in ILS’ constitutions, 1945–​2012.

subsequent constitutions. Other ILS add them with time, such as Iraq in 1964 or Jordan in 1952. Judges—​especially at the highest levels—​may be constitutionally required to take holy oaths. Such is the case with the Afghan Supreme Court judges, Sudanese Courts of Appeal and Supreme Court judges, and all of the Syrian Supreme Constitutional Court Members, who have to take the following vow to God: “I swear by the Almighty to respect the country’s Constitution and laws and to carry out my duty with impartiality and loyalty.’ ”221 As a general rule, considerably fewer of the ILS’ constitutions call for a holy oath from the judiciary. In 1950 Syria became the first ILS to include such provision in the constitution.222 As of 2012, 17 percent—​the highest percentage yet—​of all constitutions in ILS stipulate that at least a subset of the judiciary must take such an oath. Most recently, in 2011, Jordan introduced such a provision by mandating that the president and members of the Constitutional Court take an oath prior to assuming their offices.223

221 Article 119 of the 2004 Afghan Constitution; Article 195 of the Sudanese 1973 Constitution; Article 143 of the 1973 and 2000 Syrian Constitutions. 222 Several ILS had constitutional holy oath provisions with regard to nonjudicial offices. For instance, the Afghan 1931 Constitution required that a holy oath be taken by the King and the National Assembly. 223 2011 Constitution of Jordan, Article 61.

 



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ILS Constitutions with Muslim Head of State Requirement

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Figure 2.6.  Muslim head-​of-​state requirement in ILS’ constitutions, 1945–​2012.

No discussion of the relationship between Islamic law and state governance would be complete without mention of the religious requirements placed on state leaders.224 The majority of ILS require their highest executive official to be Muslim. Figure 2.6 shows patterns of this constitutional provision over time. In fact, while in 1958 only 27 percent of ILS’ constitutions included mandates for a Muslim head of state, by 2004 this number increased to 66 percent. Some ILS have introduced this requisite fairly recently, such as Qatar, whose 2004 constitution reads in Article 9: “The Emir shall, by an Emiri Order, appoint an Heir Apparent after consultation with the members of the Ruling Family and the people of wisdom (Ahal Alhal wal agd) in the State. The Heir Apparent must be a Muslim of a Qatari Muslim Mother.”225 Before 2004, the Qatari Constitution was silent on this matter, but it was a de facto requirement: apostasy is a crime in Islamic law, and it was assumed that all legitimate Qatari rulers would be Muslim since succession is hereditary.226 224 Fox’s (2015) RAS2 dataset contains several informative measures of religion’s presence in state institutions. Examples include whether some religious leaders are given diplomatic status, whether there is an official government ministry/​department dealing with religious affairs, whether certain religious officials become government officials by the virtue of their religious position, and more. 225 The Mauritanian 1961 Constitution states in Article 10 that “the President of the Republic shall be the Head of State. He shall belong to the Muslim religion.” Similar provisions are included in the Algerian 1963 Constitution (Article 39), the Tunisian 2008 Constitution (Article 38), and the Pakistani 2010 Constitution (Article 41). 226 Oman introduced this requirement in 1996. Comoros and Bahrain did so in 2001 and 2002, respectively.

 

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ILS Constitutions with Supremacy of Sharia

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Figure 2.7.  Supremacy of sharia in ILS’ constitutions, 1945–​2012.

Supremacy of sharia, if explicitly established by a constitution, constitutes a relatively strong signal of a state’s self-​ascribed commitment to a version of Islamic law. Arguably, these clauses directly set sharia as a limit or a constraint for organs of state governance.227 Figure 2.7 plots the frequency of supremacy-​of-​ sharia clauses. Some constitutions are quite explicit in setting sharia on the very top of legal hierarchy referring to it as “the” or “a” source of law, or in stating that any laws contrary to Islam are void.228 As Brown and Sherif note, such language suggests “a very different basis for the legal order” where “the shari’a itself stands prior to the positive legal order—​including, potentially and by implication, the constitution itself.”229 Bassiouni writes that in countries such as these, “the relationship between enacted laws and the sharī‘a can be analogized to secular states with a higher constitutional law.”230 According to Figure 2.7, in 2012, 38 percent of ILS mentioned supremacy of sharia in their constitution.231 For example, the

227 For more discussion, see Feldman 2008. 228 In my data, the Supremacy of Sharia variable is coded 0 if sharia is only “a” source of law. In order for this variable to be coded 1, sharia has to be the supreme source of law (i.e., no laws can be in contradiction to it). For a great discussion of the difference between these two clauses, see Ahmed and Ginsburg 2014. 229 Brown and Sherif 2004, 63. 230 Bassiouni 2014, 83. 231 Although the figure looks as though similar numbers of ILS have supremacy of sharia in their constitution in 1945 and 2012, it is important to keep in mind that values displayed are the percentages of all ILS. In 1945, 33  percent of ILS had supremacy of sharia in their constitutions (Afghanistan and Iran). In 2012, 34  percent did, but that was ten

 



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Sudanese 1998 Constitution stipulates that “Islamic law and the consensus of the nation, by referendum, Constitution and custom shall be the sources of legislation; and no legislation in contravention with these fundamentals shall be made.”232 Also, Saudi Arabia’s Basic Law of Governance declares that “the rule in the Kingdom of Saudi Arabia is based in fairness (justice), consultancy (consultative) and equality, in conformity with the precepts of the Islamic Shari’a.”233 The most recent constitution of Maldives is explicit in its references to Islamic identity. Article 10(a) declares that “the religion of the State of the Maldives is Islam. Islam shall be one of the basis of all the laws of the Maldives.” Article 10(b) states that “No law contrary to any tenet of Islam shall be enacted in the Maldives.”234 Integration of sharia’s creeds into the educational system is a definite manifestation of a state’s steadfast commitment to Islamic law and its determination to pass the Muslim faith on to future generations.235 In the context of Islamic societies, Halstead writes that education is “a vehicle for preserving, extending and transmitting a community’s or society’s cultural heritage and traditional values, but can also be a tool for social change and innovation.”236 Hallaq argues this point perhaps even more directly by stating that “the educational system and, therefore, forms of social and academic knowledge are not only intimately related to the state apparatus but are also formed and reformed by the state and its national will.”237 Figure 2.8 shows that several ILS are committed to sharia-​based education. In fact, there is a rising tendency to legitimize this form of education via constitutional provisions.238 In an important way, references to sharia-​based education constitute a key part of rational, purposeful institutional engineering on the part of the state.239

ILS:  Afghanistan, Bangladesh, Comoros, Iran, Malaysia, Maldives, Mauritania, Pakistan, Saudi Arabia, and Yemen. 232 Article 65. 233 Article 8. 234 The Maldives Constitution of 2008, Article 10(a) and (b). 235 Kazmi 2003. Moosa (2015a) writes that “all knowledge is revered, but knowledge linked to faith occupies a privileged place in the Muslim religious imaginary. When knowledge directs communities to paths of salvation, then it enjoys a particular premium” (p. 9). See also Hefner and Zaman 2007. 236 Halstead 2004, 523. 237 Hallaq 2013, 45. 238 The relationship between religious education and the commitment to secularism, or lack thereof, appears repeatedly in the scholarship (see, for instance, Wing and Varol 2006). 239 For an excellent discussion of constitutionalism, see Hirschl 2010, 72–​73.

 

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Figure 2.8.  Islam/​sharia education in ILS’ constitutions, 1945–​2012.

Historically, it was commonplace for ILS to officially base their education on the principles of sharia, as interpreted by the state. For example, Article 22 of Afghanistan’s 1931 Constitution stipulated, “In order to make sure that all educational institutions conduct their programs in accordance with Islamic principles, all educational institutions shall be monitored and inspected by the Afghanistan Islamic government.” Saudi Arabia’s 1992 Basic Law of Governance mentions Islamic education directly in Article 13: “The aim of education is to implant the Islamic Creed in the hearts of all youths.” Adherence to Islamic religious principles and the preservation of the Kingdom constitute the most important pillars of education.240 As all these figures hopefully indicate, on the aggregate level, ILS have been trapped in the escalating dynamics of opposing secular and religious forces. Reflecting these dynamics is the role of custom and tribal traditions in ILS’ domestic legal systems.241 In a crucial way, customary law has served as an anchor for traditional Islamic values and Islamic culture, repeatedly offering a competing adjudicative framework to state law. Figure 2.9 provides a sense of customary law’s presence in ILS’ constitutions over the past six decades. In short, references to custom and tribal law abound. For instance, Article 158 of 240 Ghubash 2007, 329. Other ILS that have over the years included Islam/​sharia–​education references into their constitutions include Algeria, Iran, and Pakistan. 241 For an interesting analysis of how state law interacts with tribal customs in the context of the southern part of Iraq, see Hamoudi, Al-​Sharaa, and Al-​Dahhan (2015).

 

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60% 50% 40% 30% 20% 10% 0% 1945 1947 1949 1951 1953 1955 1957 1959 1961 1963 1965 1967 1969 1971 1973 1975 1977 1979 1981 1983 1985 1987 1989 1991 1993 1995 1997 1999 2001 2003 2005 2007 2009 2011

ILS Constitutions with Customary Law References



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Figure 2.9.  Customary law in ILS’ constitutions, 1945–​2012.

Syria’s 1950 Constitution declares: “A special law shall be issued taking into consideration the tribal traditions among nomadic tribes and specifying tribes that shall come within its provisions until such time as their settlement is achieved.” In the 1973 Sudanese Constitution, Islamic law and custom are to be the “main sources of legislation.”242 Also, the 1996 Gambian Constitution stipulates that “Customary law so far as concerns members of the communities to which it applies” is an inherent part of the domestic legal system.243 The Indonesian 1950 provisional Constitution identifies customary norms as a source of legal obligations specifying that “everyone in the territory of the State owes obedience to the law, including the unwritten law.”244 Tribal customary law is of great importance in Jordan, where the state law is often deemed an unacceptable basis for resolution of intertribal disputes.245 To sum up, the importance of custom and tribal traditions cannot be underestimated. These norms themselves truthfully mirror the actual workings and values of the local communities. In a conceptual way, it is custom as well as tribal norms that capture the more fluid and the more embracing understanding of Islamic law as a living legal tradition that draws on the cultural and sociological makeup of a society.246 242 Article 9. 243 Article 7 of Gambia’s 1996 Constitution. 244 Article 32 of Indonesia’s Provisional Constitution, 1950. 245 Furr and Al-​Serhan 2008. 246 See Hefner 2016. For an in-​depth discussion of how custom and Islamic law became competing sources of law in Malaysia, see Hussin 2016.

 

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Secular Law in Official Legal System (Shared Features) It is challenging if not impossible to apprehend both the presence and the influence of Islamic law in ILS’ domestic legal systems without acknowledging the fundamental reality that in the twentieth century, governance in many of these states became gradually infused with secular law.247 It is certainly the case that the triumph of the nation-​state as a secular paradigm transformed the way that traditional sharia operated within the framework of state governance. What is more, it is the idea of the nation-​state that limited sharia’s potential ability to challenge state authority.248 This section focuses on six legal features shared by Islamic law and secular legal systems. Four of these features pertain to ILS’ constitutions, and include constitutional mentions of rule of law, supreme courts, education, and peaceful resolution of disputes. The remaining two shared features measure legal structures outside constitutions: existence of a secular court system, and women’s presence in the judiciary. As the empirical chapters demonstrate, these shared features—​ here designated as secular law—​if embedded in ILS’ domestic legal systems attract these states to legal mechanisms of international conflict management, adjudication, and arbitration. Figure 2.10 shows that the twentieth century saw an explosion in rule-​of-​ law references in ILS constitutions.249 These provisions are seen as generating legitimacy for state governance in the domestic as well as the international realm. For example, Nigeria’s 1989 Constitution states that “the State shall protect and defend the liberty of the individual, enforce the rule of law and ensure the efficient functioning of government services.”250 Appealing to a more general notion of rule of law, the Sudanese 1973 Constitution stipulates

247 See, for instance, Agrama 2012; Ahmed 2016; An-​Na‛im 2008; and Quraishi-​Landes 2015. See Fox 2015; and Philpott 2009 for excellent discussions of the terms “secular,” “secularization,” and “secularism.” 248 It is important always to keep in mind the caveat that a clear juxtaposition of Islamic law as a religious law against secular law constitutes inherently a critical oversimplification, because some aspects of Islamic law are from a practical standpoint ipso facto secular—​that is, they entail few, if any, references to religious texts or doctrines; for instance, nafaqa, or the husband’s obligation to maintain, or financially support, his wife and children during wedlock and for a period after the dissolution of a marriage (alimony). Additionally, quite a few secular institutions or legal principles—​perhaps counterintuitively to the popular Western view—​have been historically at the core of the Islamic legal tradition or Islamic societies (see Lapidus 1975, 1996). Thus, in applying the term “secular” to these features, my goal is to emphasize their shared presence in the West as well as in the Islamic milieu. See also Agrama 2012. 249 The graph jumps to its peak in 2005 when Iraq and Sudan added rule of law to their constitutions, causing 62 percent of ILS to include rule-​of-​law mentions. 250 Nigerian 1989 Constitution, Article 16.

 



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ILS Constitutions with Rule of Law References

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Figure 2.10.  Rule of law in ILS’ constitutions, 1945–​2012.

that “the State is subject to the Rule of Law and the Supremacy of the Rule of Law shall be the basis of Government.”251 Sudan’s 2005 Constitution appeals to rule of law in the context of decentralization and unity of the country by stating, “the unity of Sudan is based on the free will of its people, supremacy of the rule of law, decentralized democratic governance, accountability, equality, respect and justice.”252 Remarkably, several constitutions in ILS do not contain any rule-​of-​law provisions.253 In some cases, these provisions turn up in more recent constitutional acts despite their absence in earlier versions, with the Qatari 2004 Constitution and Indonesia’s 2002 Constitution being the primary examples.254 The institution of a supreme court and the idea of judicial review more generally are inherent in Western legal traditions. Appeal to a higher judicial institution was largely absent in traditional Islamic law—​an issue that I explore in c­ hapter 3. Yet the spread of fundamentalist interpretations of sharia has been halted, to a large extent, by jurisprudential activism of contemporary supreme courts operating within ILS.255 These courts tend to share a proclivity toward modernization and progressivism. Perhaps counterintuitively, Figure 2.11 provides a 251 1973 Constitution of Sudan, Art. 59. 252 2005 Constitution of Sudan, Article 4A. 253 Examples include constitutions of Bahrain (1973, 2002), or United Arab Emirates (1971, 1996, 2004). 254 The Qatari 2004 Constitution mentions the rule of law in Article 129: “The supremacy of law is the base of rule in the State.” The Indonesian 2002 Constitution’s Article 1 states, “The State of Indonesia shall be a state based on the rule of law.” 255 Hirschl 2010.

 

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Figure 2.11.  Supreme Courts in ILS’ constitutions, 1945–​2012.

sense of how prevalent supreme courts have been in ILS’ constitutions over the past six decades, some fluctuation notwithstanding. Of course, there are valid arguments that these higher courts do not automatically improve the quality of ILS’ domestic legal systems, nor spread secularism. Indeed, supreme courts or councils of higher justice can be tools for the ruling elite, and thus embrace a politicized, top-​imposed interpretation of sharia. But even if these institutions do not usher in a new era of secularization, their constitutional presence, as well as their widespread tendency to rely on a moderate interpretation of Islamic law, suggests that supreme courts are more often than not genuine guardians of secularism.256 People’s ability to litigate cases in secular venues offers a vital point of connection between any of the ILS’ legal reality and international law. Secular courts constitute a channel through which secular laws get enforced. Their presence can exponentially increase secular law’s de facto well-​being. This is not a trivial mechanism. In some ILS, religious courts function side-​by-​side with a secular court system. On the other end of spectrum is, for example, Libya, where the 1973 Act on the Unification of the Courts explicitly reestablished the unitary

256 See Hirschl 2010. Bahrain, Bangladesh, Kuwait, UAE, and Yemen are all examples of ILS whose constitutions refer to a supreme court. Neither of the Qatari Constitutions mentions such provisions.

 



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95% 90% ILS with Secular Courts

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Figure 2.12.  ILS with secular courts, 1945–​2012.

system functioning earlier in its history. In Yemen, the constitution promotes independence of the judiciary and introduces a commercial court system with separate jurisdiction.257 Either way, the point is that secular law fares considerably better within ILS when secular courts are present to reinforce it. In an overwhelming majority of ILS, secular courts constitute an important part of the legal landscape (Figure 2.12).258 A further telling indicator of secular law’s welfare is the position of women in the judiciary. While typically not addressed in ILS constitutions, women’s admissibility to serve as judges provides interesting insights into the reality of the legal landscape beyond constitutions.259 In this context it is essential to emphasize the shared rather than purely secular or Western nature of this characteristic. Perhaps counterintuitively to what has been assumed in the West, presence

257 Hirschl 2010, 36. The 1991 Yemeni Constitution (amended in 2001) stipulates that “judges are independent and not subject to any authority, except the law. No other body may interfere in any way in the affairs and procedures of justice” (Article 149). 258 Fox’s (2015) RAS2 dataset measures presence of religious courts that have jurisdiction over family/​inheritance matters as well as other matters (see pp. 83–​84). 259 Interestingly, no ILS constitution in my data explicitly addresses the issue of women qadi. However, there are more general references to gender in the context of prohibition of discrimination. For an excellent empirical effort at measuring female testimony in government courts, see Fox (2015). Fox’s RAS2 dataset also captures other restrictions on women such as the ability to travel abroad, to work outside home, and so on.

 

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Women in the Judiciary: Secular Courts and Qadi Courts

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Figure 2.13.  Women in the judiciary, 1945–​2012.

of women in the judiciary has not been atypical in the Islamic milieu.260 In the words of one of my interviewees: Islamic law does not prohibit women becoming a judge. This is a subject on which there are some differences even among Muslim scholars, who are not of one opinion. This is because there is no text in the Quran and there is no text in the sunna—​the sayings of the Prophet—​which would state that women should not become a judge. So, there is no definite rule and that is why most Islamic states now appoint women judges. In the United Arab Emirates, we have female judges, and they are graduates of this school. Our students.261 Figure 2.13 plots women’s presence in the judiciary, including secular courts and religious (qadi) courts. These patterns capture the law on the books—​ whether women within any of the ILS’ jurisdictions are legally allowed to serve in the judicial ranks. As a general rule, women have been more readily admitted into secular courts, and only more recently several ILS have opened qadi positions for females. 260 See Fadel (1995), who shows that in the premodern period, Islamic jurists often held a favorable view of the position of women in the courtroom. For instance, several male jurists, including conservative jurists such as Ibn Qayyim al-​Jawziyya and Ibn Taymiyya, considered a woman’s testimony to be equal to that of a man. 261 Author interview with Mohammed Al-​Qasimi, College of Law, United Arab Emirates University, Al-​Ain, November 2013.

 



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ILS Constitutions with Peaceful Resolution of Dispute References

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Figure 2.14.  Peaceful resolution of disputes in ILS’ constitutions, 1945–​2012.

These trends provide in a way an interesting departure from previous figures. Over time, laws in ILS have become more accommodating in their inclusion of women in the judiciary. Although in some ILS, women’s presence in public offices fails to reach standards of equality, modern legal reforms and gender policies in several ILS have empowered women as active participants within the judicial system.262 In some states, such as Syria, women may be appointed only to secular courts that hear criminal and civil matters. At the same time, judicial positions in personal-​ status courts or special courts that apply religious law are reserved for men only.263 More generally, despite some dissimilarities, Islamic law and international law are committed to peaceful resolution of disputes. As outlined in the UN Charter, peaceful dispute settlement is a bedrock of interstate relations.264 ILS constitutions increasingly, although sparsely (28  percent), contain provisions reflecting this normative commitment. Historically, such provisions were an exception in the Islamic milieu.265 Notably, however, their presence in ILS’ constitutions provides a bridge between Islamic law and international law (see Figure 2.14). For instance, Gambia’s 1996 Constitution with amendments through 2004 specifies that Gambia as a state shall endeavor to foster “respect 262 Sait and Lim 2006, 130. Interestingly, in Malaysia in 2016, for the first time in the country’s history, two women were appointed judges of Malaysia’s Islamic Shariah High Court. 263 Cardinal 2010. 264 Merrills 2017. 265 The first of the ILS to include peaceful resolution of disputes in its constitution was Indonesia in 1950. Indonesia was one of ten ILS in existence at the time. Article 122 of the 1950 constitution stipulates, “the Government shall endeavour to solve peacefully all disputes with other Powers.”

 

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Figure 2.15.  Education in ILS’ constitutions, 1945–​2012.

for international law, treaty obligations and the settlement of international disputes by peaceful means.”266 Perhaps the most elaborate constitutional reference of this kind is that of the Afghan 1980 Constitution, which declared that “the Democratic Republic of Afghanistan will make efforts on the basis of good intentions and the principle of peaceful co-​existence to help resolve justly and peacefully all the existing unsettled problems among neighboring countries in the region.”267 Finally, Figure 2.15 charts ILS’ constitutional mentions of education. Perhaps not surprisingly, the overwhelming majority of constitutions include such references to education, and the overall percentage has increased over time, rising from 83 percent in the 1950s to 97 percent in 2008, mirroring the general trend in the West to include the right to education in constitutions.268 This maximum holds until 2011 when Egypt removed education references in its interim constitution, leaving 93 percent of ILS constitutions mentioning education.269 Education is often mentioned in constitutional preambles as the expression of the state’s self-​declared commitment to grant all children the right to education. Similar language surrounds such mentions in the actual substantive body of a 266 Article 219. 267 Article 13. 268 Gauri 2004. My decision to measure the constitutional mentions of education—​writ large—​ is also guided by empirical considerations, as will become apparent in c­ hapters 5, 6, and 7. 269 Egypt’s 2011 Interim Constitution is a very short document. Its temporary character explains the removal of any references to education. Interestingly, education is mentioned thirty times in the 2014 Egyptian Constitution.

 



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constitution. The Islamic milieu, like the West, appeals to the general idea of protecting children. The Sudanese 1998 Constitution provides an informative illustration here: “The State shall care for children and youth and protect them against exploitation and physical and spiritual neglect, and shall direct policies of education, moral care, national guidance and spiritual cleansing to grow a good generation.”270 To conclude this section, Table 2.1 provides information on the presence of Islamic law and secular/​shared features in ILS in 2012. All these characteristics appear in the empirical analyses in c­ hapters 5, 6, and 7, where I examine the intricate relationship between the Islamic milieu and international law, in the context of conflict management. It is all these legal features—​as coalesced in constitutions and laws of lower status—​that fundamentally define ILS’ domestic legal systems, and in turn shape the ILS’ preferences toward international conflict management venues.

Does Islamic Law Matter Now? Some may remain skeptical about whether and how Islamic law is relevant to ILS’ behavior.271 I do not dispute that there is usually a relatively sharp line separating religion and the state or law in the Western world. In fact, the widely adopted Western model inherently rests on the assertion that government and state are de jure and de facto “religion-​neutral.”272 Sharia is at the heart of Islam, and it has been incorporated in some form into the legal fabric of ILS.273 Thus, precepts of the Islamic legal tradition—​however interpreted by the government—​can operate on the individual level as well as on the state level, complicating ILS’ amenability to traditional assumptions of international relations theories.274 There 270 Article 14. 271 It is interesting to note that globally, as Fox (2015, 237) demonstrates, “religion is a real political force.” Granted, Fox’s study deals with state religion policies and this focus goes beyond the presence of religious tenets in the legal system. 272 Mallat 2007, 136. Underlying my theory is a belief that religion is hardly an easily isolable concept, and it is challenging, and in some ILS societies nearly impossible to disconnect religion from the legal system. See Shakman Hurd 2015, 29. 273 Yet, as I  note earlier, the secular-​religious dichotomy is problematic in conceptualizing Islam (see Agrama 2012; Ahmed 2016; Asad 2003; Aydin 2017; Hussin 2016; Lapidus 1996; Siddique 1981). 274 In the words of Awn Shawkat Al-​Khasawneh, “Christianity started as an opposition movement to the Roman Empire, and then it became a religion of the Empire under Constantine whereas Islam, from the very beginning, was a religion and a state. And so, this dichotomy of religion and state stemmed from the historical circumstances of the birth of Christianity” (author interview with Judge Awn Shawkat Al-​Khasawneh, former vice president of the ICJ and former prime minister of Jordan, February 18, 2015, conducted in Amman, Jordan).

 

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Table 2.1. Presence of Islamic Law and Secular Law/​Shared Features in ILS, 2012. Islamic Law Sharia/​Islam, Number of Mentions in Constitution: 0–​10

Morocco, Comoros, Gambia, Algeria, Tunisia, Libya, Sudan, Iraq, Egypt, Syria, Lebanon, Kuwait, Qatar, United Arab Emirates, Oman, Indonesia, Bangladesh

No. of Mentions: 11–​33

Mauritania, Jordan, Yemen, Bahrain, Brunei, Afghanistan

No. of Mentions: 34–​209

Iran, Saudi Arabia, Nigeria, Malaysia, Maldives, Pakistan

Holy Oath

Mauritania, Comoros, Algeria, Tunisia, Libya, Sudan, Iran, Iraq, Egypt, Syria, Lebanon, Jordan, Yemen, Kuwait, Bahrain, Qatar, United Arab Emirates, Oman, Afghanistan, Pakistan, Maldives, Malaysia, Brunei,

Muslim Head of State

Mauritania, Comoros, Morocco, Algeria, Tunisia, Iran, Syria, Jordan, Saudi Arabia, Yemen, Kuwait, Bahrain, Qatar, Oman, Afghanistan, Pakistan, Maldives, Malaysia, Brunei

Supremacy of Sharia

Mauritania, Comoros, Egypt, Iran, Iraq, Oman, Saudi Arabia, Yemen, Afghanistan, Pakistan, Maldives, Malaysia, Bangladesh

Sharia-​Based Education

Iran, Saudi Arabia, Afghanistan, Pakistan, Maldives

Customary Law

Gambia, Nigeria, Sudan, Iraq, Iran, Kuwait, Pakistan, Malaysia, Indonesia, Brunei, Bangladesh

Secular Law/​Shared Features Rule of Law

Gambia, Mauritania, Nigeria, Comoros, Morocco, Algeria, Sudan, Iran, Iraq, Syria, Lebanon, Qatar, Oman, Malaysia, Maldives, Indonesia, Bangladesh

Supreme Court

Brunei, Gambia, Mauritania, Nigeria, Comoros, Morocco, Algeria, Tunisia, Sudan, Iran, Iraq, Egypt, Syria, Lebanon, Jordan, Yemen, Kuwait, Bahrain, United Arab Emirates, Oman, Afghanistan, Pakistan, Maldives, Malaysia, Indonesia, Bangladesh



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Table 2.1. Continued Peaceful Resolution of Disputes Bangladesh, Gambia, Nigeria, Algeria, Iraq, Qatar, Afghanistan, Pakistan Secular Courts

Gambia, Nigeria, Morocco, Algeria, Tunisia, Libya, Iraq, Egypt, Syria, Lebanon, Jordan, Kuwait, Bahrain, Qatar, United Arab Emirates, Oman, Malaysia, Indonesia, Brunei, Bangladesh

Women in Judiciary

Gambia, Mauritania, Nigeria, Comoros, Morocco, Algeria, Tunisia, Libya, Iraq, Egypt, Syria, Lebanon, Jordan, Yemen, Bahrain, Qatar, United Arab Emirates, Afghanistan, Pakistan, Maldives, Malaysia, Indonesia, Brunei, Bangladesh

Education in Constitution

Gambia, Mauritania, Nigeria, Comoros, Morocco, Algeria, Tunisia, Libya, Sudan, Iran, Iraq, Syria, Lebanon, Jordan, Saudi Arabia, Yemen, Kuwait, Bahrain, Qatar, United Arab Emirates, Oman, Afghanistan, Pakistan, Maldives, Malaysia, Indonesia, Bangladesh

is a difference in how religion and state-​supported law relate to one another in Islam and in the West.275 In short, the community, the state, not only the individual, is at the center of the Islamic social order.276 This reality is central to my theory. As ­chapter 4 explains, the Islamic philosophy of reconciliation and brotherly settlement embraced by the Quran “scales up” in a direct way to the state level, providing important insights into ILS’ views of international conflict management venues. As a result, features of the Islamic legal tradition anchored in law provide an instructive lens through which to understand ILS’ actions in the international arena. Before proceeding, it is worth mentioning that I  recognize that Islamic ideals are practiced differently across the ILS category. In a way, this observation is at the core of this book. Moreover, I recognize that in some ILS there

275 It is also important to add that the West-​centered scholarship has invariably shaped the perception of predominantly Islamic societies by applying the lens of secularism. As a result, at times the presence of Islamic faith in politics or state institutions has been portrayed as intolerant or fanatical (Baker 2003, 4). 276 See Bassiouni 2014.

 

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is a real difference between the dogma of Islamic law and actual state practice. Constitutional language may not perfectly translate into a particular state’s actions. Specifically, factors other than Islamic law matter as well. Of course governments pursue power politics. Thus, all countries, ILS and non-​ILS, are guided by their material preferences as they choose among international conflict management venues. The respect for state sovereignty and national interest may challenge and at times trump consideration for Islamic norms. ILS have accepted the fact that they operate within the framework of international law and its institutions, and thus must accommodate to the fundamental norms of international law. In modern international relations, there exists a plurality of political, strategic, and legal factors that determine how any government operates. In the context of ILS, sharia constitutes only one of these manifold forces. In the words of Emon, these states “are situated in complex webs of political and legal authority operating at the local, national, and international levels.”277 While in the case of most non-​ILS, religious laws have not much, if any, power to shape international behavior, in ILS, Islamic law—​if directly fused into the domestic legal system—​can constrain governments. As Hashmi argues, the influence of Islam is particularly apparent “at the level of political discourse, which constrains policy options and pressures state elites to ‘Islamicize’ their political programs. Today, every Muslim leader must make concessions to Islamic values.”278 At the very least, tenets of sharia can create restraints that modify these states’ choices in favor of or against certain peaceful resolution venues.279 The domestic legal system is a power to be reckoned with. Hussin makes an interesting point when he argues that law is “a powerful disciplinary system for the state, but also opens the way for opposition to the state, and to contests within both state and society for resources, authority, and control over the state itself.”280 The presence of Islamic law, however interpreted, within the state structures of ILS is not merely reflective of these states’ desire to hold on to their premodern religious legacies or even cultural identities, nor of their attempt to obliterate existing rules of international law. ILS’ legal commitment to the Islamic legal tradition offers a robust alternative system of norms to international law. Islamic law can, via domestic legal institutions, inform and alter ILS’ international behavior. As the empirical chapters demonstrate, it is the reaction to the

277 Emon 2012a, 54. 278 Hashmi 2002b, 161. See also Fadel 2010. 279 Reese, Ruby and Pape (2017) advance a similar argument in the context of the relationship between the Islamic calendar and violence in Islamic societies. These authors show that the Islamic calendar functions as “a ‘structural moderator’ that constrains the full set of forces driving political violence in Islamic societies” (p. 440). 280 Hussin 2016, 28.

 



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perceived challenge to their legitimacy that explains why international courts may respond in an unsympathetic way to Islamic law. The relationship between Islamic law and international law involves intricate balancing between two separate legal domains. This balancing not only shapes ILS’ behavior, it also affects the behavior of international courts and other conflict-​management institutions. This book’s challenge, therefore, is not about linking Islamic law to ILS’ behavior outside of the real-​world, sociolegal context, but instead about exploring how the Islamic legal tradition contributes to the rich environment engendering interstate relations and peaceful resolution of disputes. This approach is particularly important, because sharia itself is not a scholarly textbook lacking practical connotations. Quite the opposite:  preexisting and emerging realities provide an important backdrop for the practice of Islamic law. It is also key to recognize that this discrepancy between the theory of the Islamic polity as a flawless sharia-​based Muslim society and the everyday practices of ILS generates a “healthy tension and functions as a mechanism of checks and balances against the strictly text-​based, relatively abstract, and reductively legalistic approach of the jurists.”281 While political considerations are important in any state-​and-​law issue, this book seeks to advance a distinctive theory that places law at the center of scholarly inquiry. It is law and legal institutions that serve as a framing device for explaining how ILS view international venues for peaceful resolution.

Islamic Law States as a Hard Case for International Law? The international system and its organizing legal framework—​international law—​ do not operate in a vacuum, but fundamentally rest on the idea that states embrace different cultures, political views, religions, and domestic legal systems. In this sense, a plurality of views is a cardinal aspect of international law. At the same time, there is an ongoing interaction and friction between states’ domestic legal systems and the global legal environment. This interaction requires, to a large degree, a level of coordination.282 Do ILS constitute a challenge to international law, more so than other states? To what extent can a purportedly global system of rules accommodate a unique and intrinsically religious legal system? Can international law and Islamic law find a common legal language, one that overlooks differences and instead homes in on similarities? As Frick and Müller have observed, “is it not the very essence of the project of international law to transcend the particularities of States, societies, ethnicities, religions, ideologies, and cultures with the aim of establishing overarching principles on the basis of which to conduct international relations?”283

Kalin 2010, 24. See Emon 2015, 208. 283 Frick and Müller 2013, 10. 281 282

 

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Furthermore, the Islamic milieu cannot be narrowed down to one unified actor that “acts” in a certain way toward Western states and Western institutions. ILS are distinct from one another—​each is unique in a multitude of ways—​so grouping them as one cohesive voice is neither empirically nor theoretically correct. At the same time, it is hardly imaginable that any one ILS could credibly claim that it has the sole right to determine the proper domestic configuration of Islamic law and secular law. The category of ILS brings together a diverse set of states where secular and religious laws have a particular way of cohabitating. The complexity and the uniqueness of ILS suggest the pressing need for a more refined and nuanced theory of Islamic peaceful dispute resolution. The notional commitment governments repeatedly make to Islamic law, in combination with the expectation of the Muslim citizens that religion should play a role in all aspects of life, including their country’s international behavior, combine to create constraints on ILS—​constraints that are not equally pronounced in non-​ILS. Many states have domestic legislation that may be in conflict with international law, but the Islamic milieu may be ipso facto more reluctant to shed conflicting domestic law that is based on precepts of Islam. What does this mean for international courts applying secular law? The interface of classic international law and Islamic law offers an intriguing illustration of how predispositions toward legal universalism and legal particularism may be accommodated. Islamic law carries a distinctive understanding of what legal order is, where it comes from, and how it should be: it is connected to God’s will for humanity. Classical international law, on the other hand, strives to be indifferent to any particular religious stance, and to offer legal solutions providing the best outcome from a rational, secularist standpoint.284 Using the language of qualitative research, as a group ILS share special characteristics that make them a hard case, or perhaps a least likely case, for international law. 285 By the same token, ILS are a hard case for the most formal international settlement venues, such as international courts in their effort to establish authority over states.286 Holding all other factors constant, international courts have more opportunity to attract litigants in instances where there are fewer attractive alternatives to litigation. Chapter 4 develops the theory of Islamic dispute resolution and explains that the Islamic legal tradition puts a premium on mediation over litigation. Therefore, certain types of ILS—​those with the most heavily Islam-​infused domestic legal systems—​are especially likely to avoid courts and choose alternative dispute settlement forums. Several ILS recognize the ICJ’s compulsory jurisdiction, and more than 50 percent are party to over a hundred

I talk extensively about the religious origins of international law in c­ hapter 3. See King, Keohane, and Verba 1994; and Seawright and Gerring 2008. 286 Powell 2016, 2018a. 284 285

 



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treaties with compromissory clauses.287 Thus, in a way, the ILS category—​while encapsulating a great deal of diversity—​reveals international law’s power and the ability of international courts to garner authority and litigate cases involving the Islamic milieu. In that sense, analyzing the workings of international settlement venues vis-​à-​vis the Islamic milieu is a meaningful way to observe how international law operates in challenging places, issues, and areas. At the same time, the behavior of the ILS category toward international conflict management venues constitutes an excellent case study of the flexibility of international institutions. ILS have learned to operate within the existing framework of international law. While the comparison between ILS and non-​ILS is not the main subject of this book, c­ hapters 5, 6, and 7 demonstrate empirically that we cannot lump all ILS into an “isolationist” camp. Quite the opposite: under some conditions, some ILS are friendly toward international law, including its most formal institutions—​the courts. This chapter highlights the uniqueness of the ILS category. The next chapter provides an analysis of legal areas, both substantive and procedural, where international law and Islamic law are at odds, and where these two legal systems coexist without conflict, or even complement each other. Delving into these domains of legal convergence and divergence allows me, in ­chapter 4, to generate a theoretical framework that compares Islamic law and international law.

287 Egypt, Gambia, Nigeria, Pakistan, and Sudan recognize the compulsory jurisdiction. Chapter 6 focuses specifically on the International Court of Justice, and explains in detail these patterns.

 

3

Islamic Law and International Law Similarities and Differences Islamic traditions and law are neither “foreign” to international law nor are they different from “Western” conceptions of law. —​Awn Shawkat Al-​Khasawneh, former vice president of the International Court of Justice1

In this chapter, I lay the groundwork for my theoretical argument about Islamic dispute resolution by describing the differences and similarities between the Islamic legal tradition and international law. In a way, this chapter constitutes a collection of arguments that relate more or less loosely to the theoretical chapter—­​­chapter 4—​and to each other, but nevertheless provide an important backdrop for the rest of the book. In a sense, in this chapter I am engaging in a comparative exercise that juxtaposes laws present in both legal systems. The focus here is a range of substantive as well as procedural laws. Any legal system, domestic or international, serves a multiplicity of purposes. Two, however, are the most important. First, a legal system provides substantive answers to questions, systematizes various human activities, and overlays categories onto certain concepts. Thus, the content of the rules matters greatly. Equally important is the second function: ordering human action—​actions of individuals and human collectivities—​into certain modes or procedures. The second purpose is particularly vital in the context of peaceful resolution of disputes, especially in legal mechanisms, such as arbitration and adjudication, where formal procedure plays a central role. Decisions of arbitration tribunals and courts simultaneously engage both modes of law: substance and procedure. Chapter 4, where I present my theory, explains that both types of rules can serve as points of convergence between sharia and classical international law. How rules are created, executed, where they come from, and how they are applied may correspond in both legal

Al-​Khasawneh 2013, 39.

1

Islamic Law and International Law: Peaceful Resolution of Disputes. Emilia Justyna Powell, Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/ 9780190064631 .001.0001

 



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systems. In general, the Islamic milieu espouses a distinct way of dispute resolution, a nonconfrontational one that stands in sharp contrast with the overwhelmingly litigious culture of the West. Only certain specific methods of international dispute resolution, namely, the third-​party non-​binding methods, such as mediation and conciliation, offer a parallel to principles promoted by Islamic law. Hence, setting the substantive differences aside, the preferred way, or procedure, of conflict management will be different in Islamic law and in some international conflict management venues. This is an important reality. Scholars argue that the authority of an institution to produce binding decisions is developed not only by the outcome, the substance of decisions, but also by the procedure employed to produce the outcome.2 Thus, as I further explain in c­ hapter 4, where points of procedural convergence do occur, these can contribute to increased legitimacy of the international legal mechanisms in the eyes of ILS. Correspondence of procedural rules can either strengthen the effects of substantive similarity between sharia and international law or provide a powerful countervailing force to any divergence in substantive law. In a more general way, legal homogeneity provides a bridge between legal systems. Legal heterogeneity, in contrast, pulls legal systems apart. The interplay of Islamic law and classical international law is an illuminating example of these processes. This chapter provides a backdrop for the theory advanced in ­chapter 4, because the matrix of procedural and substantive laws in international law and Islamic law constitutes the context in which ILS settle their interstate disputes. On the whole, the most pronounced points of divergence between sharia and international law hark back to the conception of secular versus divinely inspired law. The lesson to be drawn, though, is that legal disagreement is overshadowed by numerous points of convergence. Juxtaposing sharia’s tenets with international law reveals important similarities between these two legal systems. These similarities can provide a springboard for inter-​civilizational dialogue. Analytically, there is much to be gained through this type of comparison. Identifying analogous developments and processes at play in both legal systems is enlightening as one ponders the Islamic milieu’s views about institutionalized global justice. This chapter starts with a brief account of the historical development of international law in the Muslim milieu. I then devote attention to the conversation taking place in the scholarly literature. Some scholars believe that points of contention between sharia and classical international law prevent these legal systems from converging on any substantive or procedural point. Others enthusiastically home in on similarities while dismissing existing discrepancies. As



Hibbing and Alford 2004; Tyler 1990.

2

 

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I explain, my approach falls somewhere in the middle. Although there are several points of divergence between Islamic and international law, there also exist important analogous legal norms and principles that are at play in these two legal systems. Finally, I consider the particular differences and similarities between Islamic law and international law, and this is the bulk of the chapter. The chapter portrays both these legal traditions as dynamic and continuously evolving.

Historical Background International law has been shaped by Western legal doctrine.3 The heavy influence of the West has led some scholars to believe that rules of interstate behavior are “essentially the product of the European mind” and of “European beliefs.”4 The pronounced bearing of Western legal thinking is certainly visible across the mechanisms for peaceful management of international disputes, especially the legal mechanisms of arbitration and adjudication. International courts in particular feature traditional Western legal logic, argumentation, and juristic decision-​making. The tradition of Islam, on the other hand, has its own distinctive way of thinking about international law. How has siyar, Islamic international law, contributed to the law of nations? Has there been any flow of legal knowledge from the Islamic milieu to the West? While one cannot dispute Europe’s contributions to classical international law, it is essential to be familiar with the influences stemming from Islam.5 In the process of balancing competing interests and legal traditions—​those of the West and those of Islam—​the former largely defined the law of nations. One of the first developments in international law dealt with state conduct during war and the treatment of civilians residing in conquered territories. In this area, as Awn Shawkat Al-​Khasawneh notes, “the contribution of Islamic law was significant—​and revolutionary—​for its time. It prohibited the killing of noncombatants, enjoined respect for houses of worship, prohibited the cutting down of trees, required proportionality in response to wrongs committed.”6 But 3 As Gaubatz and MacArthur (2001, 242) argue, the concept of a more inclusive natural law that applies to “all people in all places” could be extrapolated from the works of Gentili, Grotius, Bodin, Vitoria, and Suárez. The more exclusive, European-​centered international law dovetailed with the transition from natural to positive conceptions of international law in the eighteenth century. See also Mitchell and Powell 2011; and Roberts 2017. 4 Verzijl 1968, 435–​436. 5 Powell and Al Moussa 2019; and Weeramantry 1988. As Frick and Müller (2013, 11) argue, “there was no equality in the impact of the ‘Western’ political, cultural and religious traditions as compared to other traditions in terms of shaping the development of the discipline.” 6 Al-​Khasawneh 2013, 30.

 



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Islam’s contributions go beyond these rules to cover other areas, such as diplomatic immunity, maritime law, asylum, interstate trade, laws of treaties, enemy territory and property, and laws of safe conduct.7 Additionally, as I mentioned in ­chapter 2, the Islamic milieu has contributed many scholarly treatises on international law. In the Middle Ages, specifically at the end of the eighth century, Muhammad ibn al-​Hasan al-​Shaybani, a prominent Islamic jurist, penned an Introduction to the Law of Nations, long before the time of Grotius’s De Jure Belli ac Pacis in 1625.8 This comprehensive volume on Islamic international law addressed previously uncharted domains of interstate interactions, with a particular focus on dealings within the Islamic umma as well as dealings of the umma with the non-​Islamic countries.9 According to Badr, Islam has experienced three distinct stages in the process of relating to the rest of the world: the age of expansion, the age of interaction, and the age of coexistence.10 During the first stage, which lasted for a little over a century after the birth of Islam, the interactions between the Islamic umma and the West were fairly conflictual, and thus siyar focused more on the laws of war than peace. Classical Islamic scholars saw the world as divided into two realms: the land of Islam, dar al-​Islam, and the land of war, dar al-​harb.11 Nevertheless, during these turbulent years many treaties were concluded between Islamic and non-​Islamic entities, including the Constitution of Medina (622), which spelled out the relations between Muslims and the various clans inhabiting the area around Medina, most notably the Jews.12 It is important to note that while the Muslim community was not a state sensu stricto, as a discrete collectivity it saw a need to regulate dealings with others via legal means. Interestingly, during the age of expansion, there were important limitations on treaty duration: no agreement could exceed ten years, in harmony with a precedent set during the

7 See Bassiouni 2014; Fadel 2010; and Khalilieh 1998. 8 For an in-​depth analysis of Islam’s influence on Grotius, see Weeramantry 1988. 9 The Islamic community, or umma, constitutes a fundamental concept of Islamic international law. Of course, other areas of siyar were also developing during this time, including treaty law, diplomatic immunities, and safe conduct. 10 Badr 1982, 56. 11 See Al Ghunaimi (1968) who dismisses the distinction between the land of Islam and land of war, arguing that this dichotomy is not grounded in Islamic ethics. See also Bassiouni 2014; and Fadel 2010. 12 The treaty addressed many issues and stipulated that representatives of all leading tribes, Muslim or non-​Muslim, should participate in cases of negotiation with outsiders. God and Prophet Muhammad were endowed with final and absolute authority in all disputes arising between the tribes.

 

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Prophet Muhammad’s lifetime.13 Also, many agreements concluded during this time included religious terms and concepts.14 The beginning of the age of interaction was marked by a gradual transition from the land of Islam/​land of war dichotomy to a three-​pronged division of the world. A  new category, the land of peace, dar al-​sulh, was introduced.15 The land of peace comprised states that were not antagonistic toward Islam and entered into agreements with Islamic entities, but at the same time did not acknowledge Muslim authority over them.16 The conclusion of the age of interaction corresponds to the end of the Crusades and the expansion of the Ottoman Empire. The final stage, the age of coexistence, began roughly in the sixteenth century, according to Badr. Conflict between the Islamic domain and the rest of the world subsided, and peace became the norm for interstate relations. From this period on, treaties concluded between Islamic and non-​Muslim collectivities did not have to be confined to a fixed time limit. An excellent example of such a treaty is a military alliance entered into by Don Jaime II, James the Just, King of Aragon, and the Mamluk sultan of Syria and Egypt, al-​Ashraf Khalil, which included the following stipulation: “The amity and friendship thus established will endure forever, for the kingdoms involved have become as one. This treaty will not be terminated by the death of either party or by his replacement; its provisions will be perpetuated over the years.”17 Interestingly, several Islamic legal scholars have challenged the distinction between different divisions of the world, such as dar al-​Islam, dar al-​harb, and dar al-​sulh. For instance, al-​Zuhili writes that “this division has no textual support, for no provision is made for it either in the Qur’an or in the Hadith. It is instead a transient description of what happens when war flares up between Muslims and others. It is a narration of facts, similar to those confirmed by scholars of 13 Muhammad concluded a Treaty of Hudaybiyya with the Meccan chiefs, in which the two parties agreed to cease fighting for a limited period of ten years (Bsoul 2008, 117). 14 For example, the 630 treaty between Muhammad and the governor of Ayla, Yuhanna Ibn Ru’ba, includes the following religious language: “In the name of God, the Compassionate and merciful. This is a guarantee from God and Muhammad the prophet, the Messenger of God, to Yuhanna ibn Ru’ba and the people of Ayla, for their ships and their caravans by sea. They and all that are with them, men of Syria and the Yemen, and seamen, all have the protection of God and of Muhammad the prophet” (Guillaume 1955, 607). 15 Khadduri 1966, 154–​155. 16 Badr 1982, 57. During these times, a shift occurred in the rationale for jihad, which was now interpreted as a defensive war waged only against unbelievers who threatened the land of peace. For an excellent discussion of jihad, see Afsaruddin 2013a. 17 Badr 1982, 57–​58. During the eighteenth and nineteenth centuries, the Ottoman Empire entered into many peace agreements with the West, including the 1724 Russian-​Ottoman Treaty of Constantinople for the Partition of Persia and the 1739 Peace Treaty of Belgrade signed between the Ottoman Empire and the Habsburg Monarchy, to mention two.

 



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international law, namely that war splits the international community into two parties: belligerents, in particular the States involved in war; and nonbelligerents and neutrals, which comprise the remaining members of the international community.”18 Nowadays, Islamic law and classical international law coexist. ILS are part of the international community and have learned to operate within the existing system of global justice. International law constitutes the official legal frame for interstate dealings. It is highly developed and institutionalized. However, it functions according to principles embedded into it by the Western legal traditions. Thus, while international law may be viewed by the West as providing a legitimate, value-​neutral and benevolent framework, some ILS see it as a tool rigged in favor of the West.19 Nevertheless, many contemporary ILS undoubtedly embrace principles of the modern law of nations, are part of international organizations, and make use of international conflict management venues. In a way, ILS have been subject to the process of social influence. Sincere or not, ILS to a degree have adapted to norms and standards of behavior that prevail in the modern global system. Social pressure exerted by non-​ILS and international institutions has the power to alter the preferences and, consequently, the behavior of ILS on the international level. Yet, this “acculturation” is partially halted by the norms of Islamic law.20 It is Islamic law that provides a backdrop for ILS’ interstate dealings.21 As this chapter demonstrates, it is certainly the case that international law and Islamic law converge on many issues. But this fact does not automatically imply that classical international law invariably constitutes the sole basis for ILS’ interstate dealings. In other words, partial consonance between sharia and international law does not necessarily mean that all ILS accept international law’s authority across the board. The Islamic milieu continues to push back against the Western law of nations and challenge the decisions of international courts. But modern international law is able to garner some authority in the Islamic milieu, even when there are strong Islamic counter norms

18 Al-​Zuhili 2005, 278. See also Al Ghunaimi 1968; Bassiouni 2014; and Fadel 2010. 19 For an in-​depth discussion of the “international” nature of international law, see Roberts 2017. 20 For an excellent analysis of how social mechanisms can shape states’ behavior, see Goodman and Jinks 2013. According to these authors, acculturation “is the process by which actors adopt the beliefs and behavioral patterns of the surrounding culture, without actively assessing either the merits of those beliefs and behaviors or the material costs and benefits of conforming to them” (p. 22). 21 Many treaties, especially those concluded between ILS, mention the concept of Islamic umma and refer to the Muslim faith. For example, the 1936 treaty of alliance between Iraq and Saudi Arabia states, “In the name of Allah, the Compassionate, the Merciful! His Majesty the King of Iraq, His Majesty the King of the Kingdom of Saudi Arabia, In virtue of the Islamic bond and ethnic unity which bind them . . .” British and Foreign State Papers, 140: 620, London: Her Majesty’s Stationary Office H.M.S.O.

 

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that leave little space and role for any secular legal system. I return to this point in much greater detail in ­chapter  4. I  end this section with Badr’s sanguine thought:  “Islam can make valuable contributions to the progressive development of the law in this universal international order. Certain basic principles of Islamic international law lend themselves to consolidating and expanding the scope of international law.”22

The Literature Far too frequently, points of contention between Islamic law and international law have been either overemphasized or simply dismissed, leading to a dichotomous division of the scholarship. In a way, each of these bodies of literature has continued to advance in an effort to counteract the arguments of the other side. Some academics, both political scientists and legal scholars, underline commonalities between international and Islamic law, centering on analogous development and legal cross-​fertilization in areas such as protection of civilian population, diplomatic immunity, maritime law, and asylum.23 This view emphasizes the consensual nature of international law, as well as its ability to rise above the particularities of different societies, countries, ideologies, and religions.24 At times, however, de-​emphasizing distinctions between Islam and international law has led to unintended misunderstanding of what Islamic international justice entails. Underscoring similarities—​although potentially leading to mutual edification—​must not entail fitting legal notions unique to Islamic law into the Western understanding of what law is and how it should operate. Framing Islamic law via the modalities of Western law can paint a distorted picture. Islamic law operates on the basis of a unique logic that cannot always be charted out via universal categories offered by classical international law. There is hard evidence that certain tenets of Islamic law diverge from international law. But some have advanced the argument that Islam is simply incompatible with the law of nations, projecting a continuing divergence between the two systems.25 Additionally, it is not an overstatement that scholarship originating both in the West and in the Islamic milieu has produced a fair amount of prejudiced writing. Sharia is criticized as being outdated,

22 Badr 1982, 58. See also Fadel 2010. 23 Al-​Khasawneh 2013; Powell 2015. 24 Frick and Müller 2013. For an excellent overview of the scholarship on comparative international law, see Roberts et al. 2015. 25 Westbrook 1992–​1993.

 



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cryptic, and out of touch with modern global politics.26 Some criticize international law as being a Western construct that institutionalizes Western dominance at the expense of global justice and that, rather than being truly universal, articulates and promotes values of colonialism. This narrative tells a traditional irreconcilability story and proposes that effective dialogue between international and Islamic law constitutes, for the most part, a futile endeavor. Either Islamic law should be domesticated to international law, or vice versa. As Frick and Müller critically observe, thinkers associating themselves with these views believe that “international law is not much more than a device consolidating and stabilizing, and perhaps at times timidly taming, existing power structures and inequalities.”27 Such a stance is harmful to the international community’s efforts at settling interstate disputes in a nonbelligerent manner. Granted, there are important points of contention between Islamic and international law. At the same time, however, the “unrepairable incompatibility” narrative can have a powerful negative grip on modern international relations by simply failing to recognize deeply engrained commonalities between these legal traditions.28 It is troublesome that some scholars claim that sharia-​based law and international law constitute two separate legal domains, without much in common. For example, Harris argues that “a future in which Islam and the West do not stand on the brink of mutual annihilation is a future in which most Muslims have learned to ignore most of their canon, just as most Christians have learned to do. Such a transformation is by no means guaranteed to occur, however, given the tenets of Islam.”29 This chapter shows that Islamic law and international law are not fundamentally incompatible. To the contrary: there are many dimensions of commensurability between them—​some of which reach deep into the heart of peaceful conflict management. How, or via what mechanisms, do the points of convergence and departure affect the way that ILS approach international peaceful settlement? The next chapter is dedicated to this question. Here, my goal is to describe differences and similarities between Islamic law and international law.

26 Since the relationship between Islam and the West became a subject of scientific inquiry, several scholars have portrayed Islamic law as being diametrically different from Western law. One can come across more than a few variants of this view, starting with the troublesome wording of Max Weber, who referred to the qadi justice as being arbitrary, ad hoc, based on inordinate discretion, and administered without any reference to norms or rules (Weber 1968). See also Schacht 1964. 27 Frick and Müller 2013, 11. 28 See Al Ghunaimi 1968 for an interesting discussion of this topic. 29 Harris 2004, 110.

 

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Differences Relation between Law and Religion—​General Observations The nature of international law is perhaps best captured by Brierly’s definition:  “The Law of Nations, or International Law, may be defined as the body of rules and principles of action which are binding upon civilized states in their relations with one another.”30 If there is a common theme running through this chapter, it is the predominantly secular character of classical international law and the predominantly religious nature of Islamic law. The former—​especially in its contemporary form—​rests on the Euro-​American conceptions of law found in civil and common legal systems.31 From a historical perspective, the contexts in which Christianity and Islam materialized were fundamentally different. Christianity was birthed in a world where a strong system of rules, the Roman law, already existed. As the Christian church grew, the canon lawyers drew largely from Roman law—​at this point a comprehensive and mature legal system—​overlaying upon it the fundamentals of the Christian faith. Islam, on the other hand, had no a priori legal system to work with other than unwritten tribal customs. Thus, legal and religious precepts developed simultaneously.32 Numerous principles of international law have roots in ancient Rome, Greece, and medieval Europe, including laws regulating the acquisition of territory and delimitation of boundaries.33 Although modern international law is a secular legal system, the Catholic Church, the Catholic doctrine, canon law, and ecclesiastical law had a significant impact on its rules. As Diehl and Ku note, “To the extent that international law was part of canon law, it had little need for any separate intellectual basis or tenets.”34 Some of the main contributions of canon law deal with conclusion and observance of treaties, the just war theory, inclusion of non-​state actors in questions of international law, authority over territory, and human rights. Several key figures of the Catholic Church contributed immensely to the theory of the law of nations.35 For instance, while developing 30 Brierly 1963, 1. 31 See Mitchell and Powell 2011; Zartner 2014. For a broader discussion of the Eurocentrism of international law, see Anghie 2005; Hanqin 2012; Roberts 2017. 32 Weeramantry 1988, 30. 33 Lesaffer 2005, 26. As Roman law was codified in the famous Justinian’s Corpus Juris Civilis, it was never seen nor interpreted as Christian law. 34 Diehl and Ku 2010, 8. 35 In this context it is interesting to note that Saint Augustine drew a distinction between the City of God and the City of Man. These cities, according to Saint Augustine, had distinct jurisdictions: the first one was ruled by God and his everlasting laws, and the second one was ruled by secular authorities and secular laws. All citizens were subjects of both cities (Augustine 1998).

 



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his thoughts on the causes and conduct of war, Augustine drew largely from the Roman legal tradition while imbuing it with Christian teachings.36 Francisco de Vitoria, a sixteenth-​century canon lawyer, Dominican priest, and theologian, was another key scholar of international law. His writings, especially De Indis, included philosophical and moral arguments concerning the legality of Spain’s invasion and occupation of the New World territories, and in particular the treatment of the Amerindians.37 Vitoria relied on his legal as well as his theological background to argue for the Amerindians’ rightful sovereignty over the territory Spain had acquired. In his view, the just war doctrine should be extended beyond the Christian world. In particular, as Bain explains, Vitoria’s arguments were grounded in “the Biblical truth that all men are created in the image of God.”38 It cannot be denied, then, that international law, as it emerged and developed in the West, had deep roots in the Christian faith. According to Rosenne, “In the medieval period proper, largely under the influence of Saint Augustine and others of the Church Fathers, the undifferentiated concepts of international law and international morality were conceived as part of the discipline of theology, and in that form international law germinated within the framework of the feudal system.”39 Overall, however, the influence of religion on international law has been less direct in the Western than in the Islamic milieu: in the former, religiously rooted notions of morality have served merely as a foundation or an inspiration for specific rules. It is true that during the medieval period, the process of international lawmaking, being deeply influenced by canon law, was believed to be inspired by God and thus there was limited, if any, need to search for rational justification for norms and rules. Thus, many state practices during that period were “carried out as part of the Church’s ecclesiastical authority with little further theoretical or doctrinal justification regarded as necessary.”40 However, even in some Catholic theological writings of the period, there was an emphasis on reason and logic, on intellectual doctrine as the basis of international law. This is particularly the case in the writings of Augustine devoted to just war. For 36 But as Diehl and Ku (2010, 8) note, Augustine’s work on just war was in a sense “a turning point in moving international law from traditional religious dogma to something with a more reasoned basis.” Furthering the spirit of ecclesiastical inquiry, Augustine surmised that using force in order to preserve and support the church was honorable and righteous (O’Connell 2008, 22). 37 De Indis was written in 1537–​38 and delivered in 1539. The main form in which Vitoria’s ideas have been preserved is via students’ copies of his “relections,” or lectures given at the end of an academic year that summarized material covered so far and focused on most crucial issues. 38 Bain 2013, 592. At the same time, however, Vitoria “recognised the power to wage war as a sovereign (non-​Papal) prerogative” (Chinkin and Kaldor 2017, 67). 39 Rosenne 1999, 65. 40 Diehl and Ku 2010, 8.

 

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Augustine, there exist clear, rational standards according to which one can judge the legality of states’ behavior. These standards—​though deeply informed by the Christian understanding of justice and morality—​were external to strictly religious Church doctrine. Importantly, though Augustine deeply acknowledged and accepted the Biblical teachings on the importance of interstate peace, he also drew on the writings of Cicero, Aristotle, and other philosophers. An important shift in the approach to international law occurred with the writings of Vitoria and Suárez, the two great Spanish scholastics, who argued that the practice or behavior of states was an important consideration in the process of identifying rules of international law.41 Consequently, “the analytical framework for international law was shifting away from religious and philosophical texts to patterns in real world events. This also opened up the possibility for changes in the law over time (from practice) as opposed to immutable and divine truths as the basis for law.”42 Grotius, whose comprehensive work On the Law of War and Peace (1625) encouraged the establishment of the interstate legal order, promoted fundamental principles of the Christian teaching. Although his work contains references to diverse cultures and philosophies, Grotius’s optimistic view of people’s ability to do good was grounded in the spirit of Christianity.43 He also spoke in favor of the use of arbitration in interstate disputes by gatherings of Christian powers.44 Nonetheless, On the Law of War and Peace embraces a much more secular interpretation of natural law. As O’Connell explains, Grotius “continued the work of the Scholastics but moved farther toward a secular understanding of natural law than they had in order to avoid the swirling religious controversies of his time.”45 Grotius stressed the importance of human reason in the process of deciphering the law of nature, as well as universally binding principles of justice and morality. It is also important to add that Grotius’s presentation of international law was that of a unified, even if not fully comprehensive, system of law that is to govern all interstate relations.46 The character of Grotius’s teaching was largely shaped by his historical context, the Thirty Years’ War and the Peace of Westphalia (1648). On the Law of War and Peace was written with hopes of forming a legal system that would govern the conduct of all warring sides. In Grotius’s view, no human community can be 41 It is, however, important to note that Suárez believed that the pope held the final authority “to decide between competing claims of justice” (O’Connell 2008, 25). 42 Diehl and Ku 2010, 9. 43 O’Connell 2008, 27. Importantly, however, Grotius emphasized states’ continued practice for the affirmation of interstate law, grounding international law’s authority in consent, and fundamentally in the moral sense of rational humanity (Nussbaum 1954, 107). 44 Von Glahn and Taulbee 2013, 483. See also Chinkin and Kaldor (2017). 45 O’Connell 2008, 27. 46 See O’Connell 2008, 28.

 



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sustained without law and rules. To him, people have an inherent longing for social life, “endowed with an ample measure of goodness, altruism, and morality, and capable of acting on general principles and of learning from experience.”47 After Grotius, international law continued to evolve in a dynamic way, moving steadily away from religious texts and doctrines. In their place, reason, logic, and secular rational calculations and philosophies became the benchmark for the establishment and interpretation of international law. Scholarly writers such as Christian Wolff (1679–​1754) and Emmerich de Vattel (1714–​1767) elaborated on numerous aspects of international law. The hope of preventing future wars fought on religious grounds was a major motivation for Vattel. Interestingly, he accepted that international treaties can be concluded between peoples of different faiths: “Different people treat with each other in the quality of men, and not under the character of Christians and Mahommedans. Their common safety requires that they should be capable of treating with each other and treating with security.”48 Vattel believed that the universal community or society envisaged by theorists would not effectively constrain the freedom and sovereignty of states; diplomacy and the balance of power constitute the sole guarantors of interstate order. Vattel’s writings clearly express his belief in state sovereignty. For instance, he held that “normative decisions such as the just causes of war must be left to the private conscience of sovereigns.”49 Vattel’s writings propelled the growth of positivism. Under his influence, many scholars saw international law as an embodiment of the will of sovereigns and not what God or nature preordained. To a great extent, these intellectual developments can be clearly traced back to the Peace of Westphalia. The rise of the principle of state sovereignty meant that states wanted to stipulate their legal obligations in a more clear and precise way via written agreements.50 To a large degree, as Armstrong and colleagues argue, “the reality of Westphalia was that a decisive shift had been made toward the positivist principle that international law was what a society of sovereign states consented to.”51 Simply put, Westphalia was significant for its “secularisation of legitimacy.”52 Moral and religiously based arguments formerly used to justify state actions began to shift toward the consideration of legality. Moreover, states sought increasingly to institutionalize their cooperation across numerous issue areas, including movement on rivers, shared borders, railway and sea travel, and public health. In this period, arbitration became a relatively popular method



Lauterpacht 1946, 24. Vattel 1834, 195–​196. 49 O’Connell 2008, 37. 50 See Armstrong, Farrell, and Lambert. 2012, 61. 51 Armstrong et al. 2012, 61. 52 Chinkin and Kaldor 2017, 67. 47 48

 

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for resolving interstate conflicts. This development took place especially in the period following the Jay Treaty of 1794 between Great Britain and the United States to settle post-​war disputes. Arbitration was used after the American Civil War to resolve the Alabama claims, which dealt with the United Kingdom’s obligations arising out of its neutral state status during the war.53 The Hague Conferences of 1899 and 1907 further articulated legalized dispute settlement in the international arena, developing an elaborate code of procedures should bilateral negotiations fail. The growth of international commerce, the propensity to rely on scientific evidence across a range of human activities, the solidification of the doctrine of sovereignty, and the ever-​increasing complexity of international relations were important factors in the waning of the influence of the Catholic Church in matters of international law. Though some legal writers continued to espouse natural law theories, by the dawn of the nineteenth century, positivism had become, for the most part, the prevailing approach to international law. Even so, as O’Connell writes, “Positive sources of law in the form of treaties and customary international law existed, but general principles of international law and the foundation of international law continued to be described as based in natural law, much as Grotius had taught. Positivism alone could not supply solutions to questions once answered in natural law, including how law can bind the sovereign state.”54 As a continually evolving legal tradition, international law has always responded to major international events. The First and Second World Wars prompted the scholarship to continue to better conceptualize the workings of international law in the hope of improving its effectiveness. Hans Kelsen, a proponent of the Just War doctrine, revived many ideas earlier expressed by Augustine, Thomas Aquinas, and Grotius.55 He developed the concept of the Grundnorm, or ultimate norm that provides an underlying basis for a legal system. Hersch Lauterpacht’s writings draw deeply on Grotius’s works, arguing for a fundamental need for a moral interpretation and justification of international law.56 He wrote, “In the absence of the overriding authority of the judicial and legislative organs of the state there must assert itself—​unless anarchy or stagnation are to ensue—​the persuasive but potent authority of reason and principle derived from the fact of the necessary coexistence of a plurality of states. This explains the pertinacity, in the international sphere, of the idea of natural law as a legal source.”57 To Lauterpacht, international law binds sovereign states. 53 Merrills 2017. 54 O’Connell 2008, 39–​40. 55 Kelsen (1881–​1973) was an Austrian legal scholar. 56 Born in Austria-​ Hungary in 1897, Hersch Lauterpacht served on the United Nations International Law Commission, and as judge of the International Court of Justice. He died in 1960. 57 Lauterpacht 1946, 22–​23.

 



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Modern international law continues to develop, broadening its scope and deepening its connection to domestic legal systems. International law scholarship has been evolving in tandem with the goal of discovering the nature and role of international law. Contemporary writers push the development of international law further, providing a wealth of novel theoretical lenses and approaches to examine the functioning and effectiveness of international law. Some of these approaches are more dynamic than others; some focus on describing existing rules, others home in on the interaction of domestic laws with international laws. Some firmly hold to the positivist view, others draw on the naturalist theories of international law, still others look at international law through a policymaking lens.58 And some see international law as a comprehensive process of decision-​ making—​a view that goes beyond interpreting international law as a set of norms, laws, and rules.59 Even with these developments, it is difficult for all the cultures of the world to reach consensus on the meaning of justice, law, or morality. But the general question of the relation between religion and law in the context of international law can be considered settled. As should be clear from the preceding historical discussion, the Bible was not considered a direct and exclusive source of international law, and thus it was referred to alongside secular laws, or used as a normative support for positive rules.60 That said, Onuma makes an interesting point in arguing that “West Europeans think, see, feel and act according to modern European civilization, which is basically secular. However, albeit unconsciously, most of them also think, see, feel, and act according to Christian civilization of culture, which originates in the pre-​modern period.”61 With the pope’s authority confronted by the Protestant Reformation splintering the Catholic world, religious normative considerations were supplanted by reason, consent, practice, and written letter of the law, treaties. There is a strong connection between international law and values that underpin the very concept of international law.

58 For a review of contemporary approaches to international law, see Diehl and Ku 2010; and Koskenniemi 2001. 59 For instance, the New Haven school is a policy-​oriented view of international law that emphasizes social choices in the process of legal evolution. This theory’s main focus is on multiple processes of authoritative decisions. See Lasswell and McDougal 1992. 60 In general, law and religion are connected in some way in almost all legal systems simply because values rooted in religion find their way into law. Notwithstanding this subtle connection, there is a fundamental difference between applying secular rules—​albeit grounded in morality or faith—​and directly applying religious norms to solve a legal question. The latter process entails explicit use of religious sources in the various processes of law, such as adjudication. The two contrasting approaches to law embrace different forms of legal reasoning, with appeals to different sorts of authorities. More generally, see Bornstein and Miller 2009. 61 Onuma 2010, 101. See also Roberts 2017, for an excellent analysis of this issue.

 

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As Shaw writes, “Just as any domestic community must have a background of ideas and hopes to aim at, even if few can be or are ever attained, so the international community, too, must bear in mind its ultimate values.”62 Yet, as the International Court of Justice explains in one of its rulings, these background values are de jure separated from the law itself: It is a court of law, and can take account of moral principles only in so far as these are given a sufficient expression in legal form. Law exists, it is said, to serve a social need; but precisely for that reason it can do so only through and within the limits of its own discipline. Otherwise, it is not a legal service that would be rendered. Humanitarian considerations may constitute the inspirational basis for rules of law, just as, for instance, the preambular parts of the United Nations Charter constitute the moral and political basis for the specific legal provisions thereafter set out. Such considerations do not, however, in themselves amount to rules of law. All States are interested—​have an interest—​in such matters. But the existence of an “interest” does not of itself entail that this interest is specifically juridical in character.63 All else equal, the Islamic legal tradition rests on reasoning that is somewhat distinct from that of the Western legal systems: civil law and common law.64 In contrast to Christianity—​which as I mentioned earlier developed with a secular legal system already in place—​the creation of legal provisions and that of religious ones were often conjoined in Islam, especially at the very beginnings of Islamic polities. Hallaq describes this reality in the following way:  “the Community, the common social world, organically produced its own legal experts, persons who were qualified to fulfill a variety of legal functions that, in totality, made up the Islamic legal system.”65 It is important to add, however, that though morality and religion constituted an important basis for the building of the law’s and the state’s authority, the Muslim world has quickly introduced “the institutional differentiation of state and religion. Royal households or courts, political élites and the language and cultural style of the ruling classes were different from those of religious élites.”66 Yet, there are important religious bases to the Islamic legal tradition. This necessarily means that according to Islamic jurisprudence,

62 Shaw 2003, 12. 63 ICJ Judgment of July 18, 1966, second phase, South West Africa (Liberia v.  South Africa) case, 32. 64 Mallat 2007, xii. 65 Hallaq 2013, 52. 66 Lapidus 1996, 24.

 



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non-​Islamic legal systems hold an inferior place to sharia. Nonetheless, human reason plays a decisive role in the process of legal reasoning and elaboration.67 As Weiss explains, “Although the law is of divine provenance, the actual construction of the law is a human activity, and its results represent the law of God as humanly understood. Since the law does not descend from heaven ready-​made, it is the human understanding of the law—​the human fiqh—​that must be normative for society.”68 It is this human agency that according to An-​Na’im enables the Islamic law to “engage international law as an integral aspect of the context and experience of those societies.”69

Sources of Law The sources of international law are exhaustively enumerated in Article 38(1) of the Statute of the International Court of Justice.70 They include international conventions, treaties, international custom, general principles of law recognized by civilized nations, judicial decisions, and the teachings of the most highly qualified publicists. The first three constitute primary sources; judicial decisions and scholarly writings are subsidiary sources of international law. Whereas at first, customary norms were the usual form of expression for international law, in the modern era treaties are the canon. However, rules governing interstate relations are far from being completely written down. Granted, the international community has succeeded in generating a string of comprehensive international agreements that one may call “codification treaties,” following Cassese’s terminology.71 These treaties systematize large bodies of laws. Examples include the 1982 UN Convention on the Law of the Sea (UNCLOS), the 1961 Vienna Convention on Diplomatic Relations, the 1963 Vienna Convention on Consular Relations, and the Vienna Convention on the Law of Treaties.72 Treaties regulate not only issue areas that used to be covered by custom, but also new areas, such as environmental protection or cyberspace law, uncharted by other forms of lawmaking. In a way, because treaties have in essence become the main vehicle for international law, some scholars question the legitimacy and usefulness of custom.73 Interestingly, to this day there is no rule that would

67 See Fadel 2016 for an excellent discussion of law, nature, and the state. 68 Weiss 2006, 116. 69 An-​Na’im 2004, 164. In an important way, the human element intrinsic to legal exposition and belief in higher values is apparent in both legal systems. 70 Statute of the ICJ is available at http://​legal.un.org/​avl/​pdf/​ha/​sicj/​icj_​statute_​e.pdf. 71 Cassese 2005, 167. 72 1833 UNTS 3, 500 UNTS 95, 596 UNTS 261, 1155 UNTS 331 respectively. 73 Kelly 2000.

 

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irrefutably establish an exact point in time when an observed repeated practice becomes an international custom.74 Practically speaking, the process of isolating state practice is a daunting task, as it entails combing through a wide range of states’ actions in search of a strong enough pattern. Two major opinions exist regarding the meaning and scope of the general principles of law. According to the first, preponderant view, general principles of law refer to general principles present in domestic legal systems such as fair hearing or bona fides. The second view holds that general principles of law pertain to the principles of natural law.75 The drafters of the Statute of the Permanent Court of International Justice (PCIJ), the predecessor to the International Court of Justice, included a reference to “the general principles of law recognised by civilized nations” to circumvent the possibility that the Court might be unable to adjudicate because of a lack of applicable law.76 By including general principles as an acceptable source of international law, the PCIJ and then the ICJ could adjudicate in cases where an issue under consideration was not specifically governed by either a customary norm or a treaty. Yet, even a cursory look at the jurisprudence of both courts reveals that general principles have rarely been used as a basis for decisions. According to Cassese, the main reason for the underuse of these principles is that “in the international community a whole network of treaty rules had been established and in addition numerous customary rules had emerged, translating general principles of international law into treaty or customary rules.”77 In recent times, however, the notion of general principles of law has appeared in either statutes or practice of several international courts, including the International Criminal Court and the International Criminal Tribunal for the former Yugoslavia. This practice of gap-​filling via resorting to general principles has been criticized by some scholars as leading to “profound confusion in the jurisprudence, with different judges and courts slipping and sliding between different notions of general principles with little clarity on the hierarchy of their application.”78 To some extent, the nature of international law inhibits exhaustive written regulation. There exists no single international body endowed with the power to create international rules, nor a unified, hierarchical system of courts with the power to interpret existing laws. All these sources of international law are per se inherently secular in nature, even if indirectly or historically informed by Christian principles. General

74 I address custom as a source of international law in much greater detail in the “Custom” section that follows. 75 Shaw 2003, 93–​94. 76 See Article 38(1) of the ICJ Statute (n70). 77 Cassese 2005, 193. 78 Jain 2016, 113.

 



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principles of law can potentially provide the only space—​and a limited one at that—​for any sort of religious argument. As Khaliq explains, “By referring to ‘general principles of law recognised by civilized nations,’ the other primary source of international law, the Court can draw upon something other than inter-​state practice and in doing so it can refer to religious and other values which then feed into the Court’s development of international law.”79 In reality, however, the ICJ sparingly makes reference to any religion while exercising its adjudicative powers. Reliance on secular, religion-​neutral arguments is an organizing principle for all international decision-​makers. Thus, in all international adjudicative bodies, such as the ICJ, the ICC, and the WTO Dispute Settlement Body, “politics and morals are not, as a theoretical matter, acceptable bases for a judgment; decisions involving politics and morals are criticized.”80 Whereas a significant portion of international law emerged as a product of preexisting state practice, sharia imposes a different set of standards: standards rooted in God’s will.81 Thus, prior state practice, however well-​established, must not contradict the spirit of those perfect laws.82 Islamic law has two primary written sources, the Quran and the sunna, and two non-​textual sources, ijma, or consensus, and qiyas, or analogical reasoning.83 The last two constitute analytical, methodological tools for determining the law and can be used as a supplement in cases where the primary sources are silent.84 The Quran is, according to the Muslim faith, the book of divine revelation of God’s will, and as such is believed to be perfect in both composition and content. It is the foundation of sharia. Notwithstanding its prominence as a legal source, the Quran does not contain many legal verses. Depending on how one defines a legal maxim, or a legal topic, the Quran encompasses anywhere from eighty to five hundred legal verses.85 However one counts, it is important to keep in mind that the Quran’s primary role was not as a legal code of conduct.86 In this context, 79 Khaliq 2013, 110. 80 Picker 2008, 1097. 81 For an excellent presentation of the sources of Islamic law, see Bassiouni 2014. 82 Bsoul 2008, 25. 83 According to Weiss (2006, 122), ijma “for all practical purposes amounted to a textual source, since it had to find expression in quotable words in order to be effective, and these words had to be transmitted from generation to generation in the same manner as the words of the Qur’an and the Sunna.” However, he goes on to say that instances of ijma, or more accurately the laws on which the scholars agree, have not been compiled in a systematic, unified way (pp. 122–​123). 84 See Mallat 2007, 109; and Weeramantry 1988, 31. 85 See Bassiouni 2014; Glenn 2014; Mallat 2007, 33; Weeramantry 1988, 32–​33; Weiss 2006. 86 Similarly, introduction of a new legal system was not Muhammad’s main objective. Historically, the presence of legal injunctions increased in the latter revelations, after Muhammad’s voyage to Medina. It was in Medina that Muslim believers organized themselves in a society and the need for legal regulations increased.

 

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Bassiouni writes, “The Qur’ān contains the expressions of values, principles, and guidelines for conduct, admonitions against prohibited and wrongful conduct, and exhortations to do good and abjure evil. In that sense, it is all-​inclusive, but not as legal prescriptions and proscriptions.”87 Sunna, the second main source of law, comprises traditions, acts, and words of Muhammad.88 The word “sunna” literally means a pattern of behavior, a manner of acting, a rule of conduct. If the Quran does not speak on a given issue, sunna is to provide guidance.89 To Muslims, the life of Muhammad is a living translation of legal precepts of the Quran.90 Scholars have parsed sunna into Muhammad’s sayings, also known as hadith; his actions; and his silence. The hadith is the most important constitutive part of the sunna.91 Many of the rules regulating peaceful resolution of disputes come from hadiths, as the Prophet was not only the spiritual leader for the Muslims, but also the supreme arbitrator and judge. In fact, Muhammad presided over a multitude of contentious cases, and if a solution could not be found in the Quran itself, Muhammad, inspired by God, was the source of resolution.92 In contrast to the Quran—​whose divine nature and contents are not contested—​the main Islamic schools of jurisprudence disagree with regard to the contents and authenticity of the traditions of the Prophet and have their own compilations and books of reference.93 These

87 Bassiouni 2014, 23. 88 Modern ILS’ constitutions hardly ever refer to specific sources of Islamic law. If they do, these references are usually to the Quran. For instance, Saudi Arabia’s 1992 Basic Law of Governance in Article 1 declares that the country’s constitution is “the Holy Qur’an and the Prophet’s Sunnah (traditions).” Pakistan’s 1973 constitution mentions sunna in the preamble as well as in Article 31, which talks about the state’s responsibility to enable the Muslims of Pakistan “to order their lives in accordance with the fundamental principles and basic concepts of Islam and to provide facilities whereby they may be enabled to understand the meaning of life according to the Holy Quran and Sunnah.” 89 Quran (Sura 59, verse 7) declares, “Whatsoever the Messenger give you, take it and whatsoever he forbids, abstain from it.” Sunna also provides legal guidance as a form of a commentary on more general Quranic passages. 90 Sunna “is an ancient Arab concept, meaning an exemplary mode of conduct, and the verb sanna has the connotation of ‘setting or fashioning a mode of conduct as an example that others would follow’ ” (Hallaq 2005, 46). 91 Mallat 2007, 35. A hadith consists of two parts: the actual statement or a norm, and then a proof of the statement’s legitimacy, isnad (Glenn 2014, 184). 92 Weeramantry 1988, 35. 93 For a comprehensive list of the main Shi’a and Sunni hadith compilations, see Juynboll 2007; Mallat 2007. Muhammad’s companions and followers and their successors collected discrete traditions, recorded them, and transmitted them from generation to generation. To prove their authenticity, each record was accompanied by a chain of transmitters linking the original tradition and the chronicler. Thus, hadiths are often evaluated not according to the insight they offer, but according to their reliability (Glenn 2014, 184)

 



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disagreements demonstrate the unprecedented importance of interpretation in Islamic law. It is the divergence of views between the schools of jurisprudence that resides at the heart of sharia.94 Judicial consensus, ijma, denotes a common religious conviction among legal scholars. Mallat refers to ijma as “the decisive instance,” because it warrants the authenticity of the textual sources and ensures their accurate interpretation.95 The authority of ijma is based on the belief that a collectively reached decision is superior to that of an individual—​a view that can be traced to Muhammad, who is recorded as saying that his nation will not agree unanimously on an error. In general, the likelihood of such an error, a misinterpretation of God’s will, is much greater when an individual scholar makes a pronouncement of a legal nature than it is in the case of collective decision-​making. In instances where no agreement exists, the jurists may continue to engage in interpretation of the divine law. Consequently, the entirety of law can be divided into two separate domains: one where there is a consensus about a particular exposition of law, and one where there is disagreement. Islamic schools of jurisprudence reside in the second area.96 Islamic scholarship diverges on whether the consensus must be shared by the entire community of Muslims or by the community of scholars, in part or in whole. But the most widely accepted view is that the presence of consensus is ascertained by “an absence of known objection to the expressed opinion of a single mujtahid.”97 Despite the many obstacles in determining the actual presence of ijma, in many Islamic law textbooks judicial consensus is mentioned prior to analogical reasoning because only ijma can be “a source for irrefutably divine revelation.”98 In the event that a solution cannot be found in the three aforementioned sources, jurists are to develop a fitting legal prescription using analogical reasoning, qiyas.99 Via this juristic technique, a specific rule found in the foundational texts may be applied to another legal question or a new problem.100 The 94 See Bassiouni 2014; Fadel 2016; and Abou El Fadl 2001. 95 Mallat 2007, 109. The collective judgment can be of either a confirming or a creative nature (see Vikør 2005, 75–​88; and Zweigert and Kötz 1998). Ijma of a confirming nature is established when jurists conclude that a specific variation/​exposition of a rule is best. The creative ijma is more inventive. It rests on the notion that a consensus is by itself an indication that a rule truthfully and accurately captures God’s will. This type of consensus is a source of Islamic law, because it can generate a rule that Muslims must subsequently follow. 96 Weiss 2006, 122. 97 Weiss 2006, 122. 98 Vikør 2005, 74. 99 Approach to qiyas varies across Islamic schools of jurisprudence. For the use of aql, reason or intelligence, in place of qiyas in the Usuli Jafari madhhab, see Al-​Ṣadr 2003 (Mottahedeh translation). 100 Some scholars liken analogical reasoning to stare decisis in common law, whereby a judge is obliged to examine how previous judgments dealt with similar cases. The main difference is, however, that qiyas relies on repercussions and ramifications rather than a priori legal prescriptions. Whereas a

 

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requirement is that the set precedent and the new problem have a common operative or effective cause. For example, qiyas is applied to the injunction against drinking grape wine to create an injunction against the use of modern drugs such as cocaine.101 Scholarly engagement in qiyas entails an arduous task of separating the causal mechanism, the rationale, from the factual circumstances of a case in the Quran or Prophetic traditions. Thus, analogical reasoning relies on identifying general concepts and principles submerged in specific situational circumstances. The fundamental role of qiyas cannot be underestimated:  it provides a relatively flexible legal tool via which rules of the Quran and sunna can be extended to changing circumstances. In an essential way, qiyas has historically supplied a vehicle to bring local practices into a broadly understood structure of the law. As long as a desired outcome is achieved, local ways and local practices can fill in the missing legal spaces.102

Religious Features in the Courtroom: Religious Affiliation and Gender of Judges, Holy Oaths The theory of law may be different from the practice of law. Do tenets of sharia trickle down to the courtroom? While c­ hapter 4 addresses broader, more systemic differences in peaceful settlement as it occurs under Islamic law and international law, here I  focus on three specific issues:  religious affiliation and gender requirements of the judges, as well as holy oaths. Why would any legal

common law judge extracts detailed rules from specific cases and then applies these rules to a subsequent case, an Islamic law judge focuses on consequences of a case in a specific context. 101 Similarly, although prohibition of pornography is not explicitly mentioned in the material sources, the Quran does call on believers to embrace modesty in clothing and to resist bodily temptation and lust. Via analogical reasoning it is logically deduced that pornography is forbidden. 102 Despite the inherently religious nature of Islamic law sources, some scholars portray them as similar to sources of international law. In fact, Khadduri (1956, 359) draws a direct analogy between them when he says, “These sources are not unlike the sources of the modern law of nations. The Qur’an represents the authoritative source of law; traditions are equivalent to custom; rules and principles expressed in treaties with non-​Muslims fall in the category of agreement; and the opinions of the caliphs and jurists, based on legal deduction and analogy, may be regarded as reason.” Indeed, the human capacity to reason plays a significant role in the Islamic legal tradition, since it is thought that human reason connects humanity to God. Similarly, van Hoecke (2010, 48–​49) draws comparisons between the sunna and the codes of law found in Western Europe, arguing that just as “nineteenth-​ century civil codes were a synthesis of customary law, a long-​lasting legal scholarship and newly introduced principles,” the sunna as well may be “compared to customary law, as it is based on the customs and life of Muhammad, later on written down in authoritative texts and rearranged by legal scholarship.” Van Hoecke goes on to suggest that judicial consensus in Islamic law is similar to the Western ‘‘legal dogmatics,” wherein a scholarly discussion may generate a consensus on how a legal text is to be understood (p. 49).

 



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system—​domestic or international—​place an emphasis on the religious affiliation of the judiciary? The main theme of Western legal thought and Western international law is that a judge, while exercising judicial duties, is to engage in unbiased application of law to specific cases. The principle of church-​state separation proscribes the explicit usage of religious sources or religious argumentation in the courtroom. In the same vein, there are no provisions pertaining to religious affiliation or gender of the judiciary. Instead, what is emphasized is the moral attributes and the competence of potential candidates for judicial seats.103 For instance, according to the ICJ Statute, the Court is to be composed of “independent judges, elected regardless of their nationality from among persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are jurisconsults of recognized competence in international law.”104 The Statute further recommends that the Court’s body as a whole should represent the main forms of civilization and the main legal systems of the world.105 Similar qualifications are required from the members of the International Tribunal for the Law of the Sea (ITLOS), whose statute requires that its twenty-​one independent members be “elected from among persons enjoying the highest reputation for fairness and integrity and of recognized competence in the field of the law of the sea.” By the same token, the ITLOS talks about “the representation of the principal legal systems of the world and equitable geographical distribution.”106 Likewise, members of the Permanent Court of Arbitration (PCA) are to be persons of “known competency in questions of international law, of the highest moral reputation and disposed to accept the duties of arbitrators.”107 The World Trade Organization (WTO) clearly outlines qualification for the members of its Dispute Settlement Body as well as the Appellate Body, emphasizing independence in decision-​ making, diverse background, wide-​reaching experiences, and expertise in law.108

103 However, international courts have historically been dominated not only by Europeans, but also more specifically by European males. Female judges until very recently have not only been absent from these institutions, but have had limited influence on the development of international law and scholarship in general. More generally, see Charlesworth and Chinkin (2000). 104 Statute of the ICJ, Article 2. 105 Statute of the ICJ, Article 9. 106 Statute of ITLOS, Article 2, available at http://​www.itlos.org/​fileadmin/​itlos/​documents/​ basic_​texts/​statute_​en.pdf. 107 Permanent Court of Arbitration, available at https://​pca-​cpa.org/​en/​about/​structure/​ members-​of-​the-​court/​. 108 World Trade Organization’s Understanding on Rules and Procedures Governing the Settlement of Disputes, Articles 8(2) and 17(3). See also the World Trade Organization, available at https://​www.wto.org.

 

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In contrast, in many ILS, religion finds expression in some courtrooms. A  judge of a religious court, while making decisions, applies insights from God’s law to a particular case. Ibn Khaldun, one of the greatest Muslim historians, wrote, “The office of judge holds a place with God to which nothing else compares. It is God’s scales in which the conditions of men on earth are equalized.”109 Requirements associated with holding the office of an Islamic law judge, or qadi, have evolved over time. In the beginning, qadi performed magistrate functions, were an integral part of the state apparatus, and simply offered dispute resolution as representatives of the rulers. Judges were to be selected from free adult males, sane and sound, knowledgeable in jurisprudence, and of good moral character.110 With time, however, the office itself and qadi’s judicial tasks acquired an increasingly religious importance. At the end of the seventh century, qadis were expected to know the Quran. Judgments were directly based on the Quran, traditions of the Prophet, local custom, and, in the event of legal lacunae, judicial discretion. In the process of adjudicating difficult matters, qadis often referred to legal scholars, asking for legal opinions, thereby increasing the presence of religious argumentation in the courtroom.111 Modern-​day qadi continue to administer justice according to the Islamic legal tradition, must be devout adherents to the Muslim faith, respect religious values, and provide a model for Muslims living in their local communities. Thus, religious piety, devotion to sharia, and judicial duty must come together in the person of the qadi. By way of illustration, in Saudi Arabia, and Iran, judges must be graduates of sharia colleges or have other training in Islamic jurisprudence.112 Saudi Arabia’s Law of the Judiciary requires that a candidate for a judge “shall be fully qualified to hold position of judge in accordance with the Shari’ah provisions. He shall hold the degree of one of the Shari’ah colleges in the Kingdom of Saudi Arabia or any equivalent certificate.”113 In some ILS, qadi positions are restricted to members of specific jurisprudential schools. 109 Ibn Khaldun 1958, 149. Khaldun’s Muqaddimah (Introduction or Prolegomenon) is considered the most important compilation of Islamic history of the premodern world, covering sociology, philosophy of history, economic thought, demography, and ethnography. Khaldun wrote the Muqaddimah in 1377, and it was first published as a complete translation in the English language in 1958. 110 Khadduri (1984, 146) writes that a qadi must be “in the possession of an adequate knowledge of the Law.” 111 This practice further solidified the position of scholars in the legal practice. At times, judges were selected from among the scholars. 112 In Afghanistan, judges must hold a degree from a sharia law college or alternatively have a diploma “on Religious Studies from an officially recognized centre or equivalent” (Sial/​Masoud 2018). 113 The Law of the Judiciary (Article 37) requires that a candidate for a judge “shall not have been sentenced to a had (Qur’anic prescribed punishment) or a ta’zir (discretionary punishment) or for a crime affecting honor, or punished by disciplinary action dismissing him from a public office, even though he may have been rehabilitated.”

 



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The status of female judges remains a controversial issue in some ILS. Neither the Quran nor sunna contain specific provision that would explicitly prohibit women from serving as judges. But some of the founding jurists of the Shafii, Maliki, and Hanbali schools of jurisprudence viewed women as being disqualified from serving in a judicial capacity, on the basis of the Quranic prescription that men are protectors or maintainers of women.114 Thus, offices that require authority over men—​whether of political or adjudicatory nature—​could be, under a strict reading, restricted only to men.115 Other jurists place greater emphasis on the qualification of a judge and not the gender. Abu Hanifa, the founder of the Hanafi school, proposed that a woman can adjudicate over cases in which she fulfills requirements essential for a witness. But sharia courts may at times value a man’s testimony more highly than that of a woman, drawing on the Quranic verse, “get two witnesses, out of your own men, and if there are not two men, then a man and two women.”116 This rule may be interpreted by some as undercutting a woman’s judicial authority in sharia courts. However, women can be appointed as secular court judges, since in secular courts male and female testimony has the same worth.117 And in any case, we must avoid the sweeping assertion that all sharia courts have considered female legal testimony to be worth half of that of a man, as in practice this was not universally true.118 Perhaps the most egalitarian view is that of Jarir Al-​Tabari, a prominent Persian jurist and scholar, according to whom a woman may serve as a judge since she can also be a legal expert, a position of a higher status.119 The status of women in the judiciary is a telling example of the jurists’ power to define law. Modern day ILS’ legal systems reflect these divergent views. For instance, women have been able to hold a judicial seat in Islamic courts in Indonesia since the 1960s, and have increasingly done so since the early 1990s.120 Women have been allowed to be appointed to Islamic courts in Malaysia since

114 Quran, Sura 4, verse 34. Different interpretations use different phrases, including “protectors,” “maintainers,” “men are in charge,” “men are the managers of the affairs of women.” 115 At times, factors such as emotional temperament, inability to be a witness in sharia courts, and periodical impurity while menstruating are brought up (see Cardinal 2010). 116 Quran, Sura 2, verse 282. 117 See Cardinal 2010, 191–​192. 118 As Fadel (1995) shows, in the premodern period, male jurists frequently considered a woman’s legal testimony to be of equal value to a man’s testimony. It depended on the nature of the issue considered by the court as well as on which jurists and which madhhabs were involved. Interestingly, a more equalizing position was often taken by several conservative jurists, including Ibn Taymiyya and Ibn Qayyim al-​Jawziyya. 119 Cardinal 2010, 199. 120 Hirschl 2010; Nurlaelawati and Salim 2017.

 

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2006, and have held such positions since 2010.121 In Afghanistan, during the Taliban rule from 1996 to 2001, women were excluded from any form of public service. While the post-​Taliban Afghani legal system equalizes the position of female and male judges, in 2013, women constituted only less than 10 percent of the country’s judicial sector and less than 20 percent of lawyers.122 Such de facto discrimination is a product of the strict gender segregation engrained in the Afghan social order. There are also logistical issues such as the shortage of safe transportation and housing for women who attend law schools or attempt to complete sharia training.123 Obstacles of a social nature are deeply entrenched in several societies of ILS, whereby Muslim women rarely hold judicial seats—​ especially at higher levels—​despite domestic laws that explicitly base judicial appointments on merit. In several ILS openly inclusive laws have not yet been able to successfully counterbalance societal skepticism.124 Oaths of a religious nature are not part of the vocabulary of modern international law. Arbitration between city-​states in ancient Greece, one of the earliest instances of interstate dispute settlement, relatively quickly moved away from settlement by the Olympian gods, or a common religious body.125 The arbitration process came to rest mostly on secular logic and logical reasoning. In fact, in the process of presenting their cases before an arbitral tribunal, the disputants offered material, hard evidence such as records of previous agreements, maps, historical records, and testimony of eyewitnesses. Later on, religious oaths returned to international practice in a rather sparing manner in the medieval period, when the Catholic Church had a strong influence on global relations.126 Over time, however, as secular international adjudicators appeared, any religious pledges were removed from the courtroom.

121 Zin 2017, 162. 122 “Out of the Shadows onto the Bench: Women in Afghanistan’s Justice Sector.” International Development Law Organization, 214, 7 available at https://​www.idlo.int/​sites/​default/​files/​ IDLO_​Afghan%20Legal%20Professionals%20summary.pdf. 123 Caspani 2014. 124 In 2013, for the first time, women were appointed to Saudi Arabia’s Shura Council, which had been traditionally reserved for men only (Hamdan 2013). The Shura Council is an effort at sharia-​ recommended collective decision-​making. The 150-​member body advises the king, drafts laws, and debates major issues of interest to Saudi Arabia (see the Shura Council’s official website at http://​ www.shura.gov.sa/​w ps/​wcm/​connect/​ShuraEn/​internet/​Home). For a recent report on the status of women in Saudi Arabia, see Tran 2015. 125 Bederman 1999. 126 During these times, treaties were accompanied by religious vows. As Khaliq (2013, 106) observes, “so there would be both a religious obligation of observance as well as a moral duty of truthfulness, both of which the Catholic Church emphasized by excommunicating those who failed to comply with the treaty’s terms.”

 



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In contrast, oaths of a deeply religious nature continue to hold a privileged position in Islamic law.127 They appealed to Arabs who, as the Quran’s primary audience, were well acquainted with oaths as a method for making credible commitments. The Quran repeatedly speaks about the process of oath-​taking.128 For instance, Sura 16, verse 94 reads: “Take not your oaths as mere mutual deceit.” This verse underlines the community-​based and relational character of sharia. Every individual contributes to the Muslim society and must recognize the importance of connection to others in all aspects of life. Oaths to God as well as oaths to other believers embody this aspect of sharia’s nature.129 Most importantly, holy oaths reinforce a legal as well as a religious ethic in the courtroom. The system of oaths was not only commonly acknowledged in early Islam, but proved to be indispensable in many aspects of social life in Muslim communities, including politics, culture, and law. The Constitution of Medina, the basis of Muhammad’s authority in Medina, was an oath-​bound agreement.130 Oaths appeared repeatedly in treaties between collectivities, whereby two political leaders swore an oath to guarantee a peace treaty, to establish a relation of subjugation, or to seal a conquest of a territory. In fact, a treaty without an oath was often considered invalid, or was downgraded from a peace treaty to a confirmation of “a state of ‘nonbelligerency.’ ”131 In general, some oaths were lengthy and detailed, while others were relatively succinct, simply confirming a concrete deed or action. Usually, oaths were taken in the presence of notable witnesses, such as notaries, qadi, and, in the case of treaty oaths, notables or a caliph. Regardless of the type and subject of an oath, God was considered not just a passive recipient of a valid oath, but an active party. If a believer swears by God, he or she is in effect invoking God’s judgment or punishment if the oath is not fulfilled. A vow could also take the form of an individual’s attestation to God. Such an oath provided a widely accepted way of stating one’s obligation. The gravity of this oath rests on the fear of His retribution if such a pledge is ill-​taken. Oaths remain an essential part of religious adjudication in several ILS, especially in cases when testimonies or notarized documents of the litigating parties are contradictory. Disputants may also use a holy oath if there is a lack of hard evidence supporting their claims. In-​court oaths have no established form, and 127 Hamoudi, Al-​Sharaa, and Al-​Dahhan (2015) examine the role of oath-​taking during arbitration proceedings in Iraq’s Shi’i tribes. The authors describe that oaths of religious nature are used especially in cases when “there is no evidence in favor of a claim on the part of an injured party, nor against it” (p. 236). 128 Ibrahim 2009, 476. 129 Rosen (2000, 185) writes that the Quran and sunna put great weight on “the role of the socially constructed person as the locus of moral and religious responsibility.” 130 Mottahedeh 2001, 45. 131 Mottahedeh 2001, 60–​61.

 

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it is up to the judge to require that either one or both parties take the vow. To highlight their gravity, holy oaths used in litigation are commonly taken in the presence of two notaries at a local shrine, or a mosque. Thus, “it is not unusual for an individual to maintain a particular testimony right up to the moment of oath-​taking and then to stop, refuse the oath, and surrender the case.”132

Similarities Yes, I think we should definitely look at the similarities. —​Hans Corell, the UN’s former Under-​Secretary-​General for Legal Affairs of the United Nations133

Role of Scholars in Law Formation Scholars have played a formative role in the development of international law.134 As Article 38(1) of the ICJ Statute stipulates, “the teachings of the most highly qualified publicists of the various nations” are regarded as a subsidiary source of international law.135 Writers such as Vattel, Vitoria, Grotius, Pufendorf, and Gentili constituted supreme authorities in the sixteenth to the eighteenth centuries, and their works have shaped the substance and interpretation of states’ legal obligations.136 The incomplete nature of international law and the lack of supreme legislative as well as adjudicative institutions have necessitated the use of academic writings to articulate the rules of interstate relations. Scholars reflected upon existing state practice, analyzed the underlying reasons for legal regulation, proposed new rules, and identified weaknesses of the slowly developing system of international justice.137 In general, jurists have contributed enormously to the evolution of international law, stretching the law’s boundaries and identifying the focal points of academic discussions. In an important way, it is the international legal scholarship that spurred the development of the law among nations. As Diehl and Ku write, “International law’s historical development has been pushed along by the need to provide intellectual bases to increase the capacity for international law to meet the increasingly complicated needs of international 132 Rosen 2000, 11. 133 Author interview with Hans Corell, March 14, 2015. 134 I address the role of scholars in the development of international law earlier in this chapter. 135 ICJ Statute, available at http://​legal.un.org/​avl/​pdf/​ha/​sicj/​icj_​statute_​e.pdf. 136 Hugo Grotius’s Mare Liberum and On the Law of War and Peace; Emmerich de Vattel’s Droit des Gens; and Samuel von Pufendorf ’s The Eight Books on the Law of Nature and Nations are just a few examples of most influential scholarly works. 137 Shaw 2003, 106.

 



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life. From the viewpoint of the scholar, the increase in international activity has provided a rich body of experience to draw on for observation and analysis.”138 Modern international law continues on its path of evolution, expanding its scope and strengthening its association with domestic legal systems. The scholarship, with its emphasis on structures, limitations, key values, and processes, advances our understanding of how international law works in theory and in practice. Whether explanatory, normative, or process-​oriented, the various scholarly writings provide the means to assess the state of international law and articulate its nature. In an important way, modern writers drive the development of international law, providing a wide range of fresh theoretical lenses to study international law. Some of these approaches stress the dynamic nature of international law, some put an emphasis on what the law should be, some focus on describing existing rules. Some scholars hold to the positivist view, some revive the naturalist theories of international law, some look at international law via economic or critical lenses.139 Rational-​choice theory has furthered the scientific analysis of international law, with its move away from normativism.140 In contrast with the civil law tradition, where the legislature plays a major role in the process of law creation, and the judge-​made common law tradition, Islamic scholars are the backbone of sharia. They discover what law actually is and mold sharia into concrete rules and principles. As Hallaq writes, schools of jurisprudence, madhhabs, in essence “produced law and afforded its axis of authority.”141 Historically, scholars held a monopoly on interpreting God’s will.142 Scholarly fiqh books were comprehensive texts filled with concrete cases, specific rules applicable to everyday life, such as the correct ways of worshiping God.143 With time, some of these compendiums became more authoritative than others; some jurists, such as Abu Hanifa, Malik Ibn Anas, Al-​Shafii, and Ahmad ibn Hanbal, acquired strong positions in the society. Subsequently, their works provided the basis for the dominant schools of jurisprudence. In some instances the jurists’ position was so strong that they could juxtapose themselves against political authorities as the true guardians of sacred law.144 During the nineteenth century, 138 Diehl and Ku 2010, 15. 139 For a review of contemporary approaches to international law, see Koskenniemi 2001. 140 See, for instance, Goldsmith and Posner 2005; and Guzman 2008. 141 Hallaq 2009b, 71. 142 Feldman 2008. According to Khadduri (1984, 146), “the judges, indeed the whole community of scholars (‘ulamā’), were considered the light of the world and custodians of Religion and Law after the Prophet.” 143 Some fiqh books were more comprehensive than others, and usually consisted of two parts. The first part dealt with the law of rituals and was, because of its subject, mostly religious. The second part regulated contracts and types of transactions. See Bassiouni 2014; Fadel 2016; and Mallat 2007. 144 See, more generally, Hallaq 2009b.

 

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comprehensive reforms changed the legal system of the Ottoman Empire. Scholars’ ability to pronounce law was substantially weakened, and written legal codes—​molded in the spirit of the civil legal tradition—​were introduced.145 Corresponding to this shift in lawmaking authority was a movement to promulgate constitutional acts that incorporated Western legal thinking. These reforms fundamentally changed scholars’ authority.146 These changes notwithstanding, the strong connection between scholars and law remains a hallmark of the contemporary Islamic legal tradition.147 Albeit indirectly, jurists affected the Islamic process of adjudication. Qadi consulted scholars, particularly in the context of hard cases and questions of law. In fact, some qadi “were in the habit of asking ‘people who know’ about difficult cases they faced—​a practice highly encouraged by the Quran itself.”148 In some ways, then, jurists contributed to the way that the law was interpreted and overlaid onto real cases. As a result, there exists an important “feedback between holy law and the real world.”149 I  return to Islamic schools of jurisprudence in ­chapter 7. There, I go beyond the particulars of the secular law/​Islamic law balance within ILS domestic legal systems, and consider whether teachings of Islamic jurisprudential schools might influence ILS’ views of international mechanisms for conflict management.

Custom Custom, as evidence of a general practice accepted as law, is listed as one of the sources of international law in the ICJ Statute.150 Until the twentieth century, customary rules were the main form of public international law, covering a wide range of substantive legal space such as maritime activities or diplomatic immunity. Custom played a formative role in the development of private international law, especially principles governing conflict of laws, and international trade.151 With time, treaties became the major instrument of international law. As Diehl 145 See Fadel 2009. 146 In this context, it is important to add that within the Shia school of jurisprudence, scholars have largely kept their substantial influence in the process of determining sharia. See, for instance, Hamoudi (2010a), who in response to Feldman (2008), elaborates on Shia jurists’ position in Iraq, especially in the context of modern Iraq’s constitutionalism. 147 For an interesting explanation of how fiqh and Islamic jurisprudence work, see Abou El Fadl 2001; and Quraishi-​Landes 2015. 148 Hallaq 2005, 89. The practice of consulting legal specialists was in most regions normative and non-​obligatory. 149 Glenn 2014, 189. 150 The Statute of the International Court of Justice, Article 38.1(b). 151 Bradley and Gulati 2010.

 



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and Ku argue, “Custom was once the most common source of international law, but its lengthy developmental process led treaties to assume the primary role in positive international law.”152 Not surprisingly, states prefer treaties to custom because treaties are “more certain and result from the willing participation of contracting parties in the negotiating process.”153 There is a rich library of studies that focus on the exact scope and meaning of custom. In principle, custom is composed of two elements: an objective element, general state practice, and a subjective element, a conviction that such practice indeed reflects law. These two components coexisting together generate international customary law. As a rule, constant, habitual, and common practice can be evidenced via states’ actions and omissions, but it is uncertain how long states must engage in such practice or how widespread such behavior should be. Lowe writes, “There is no set proportion of the States in the world that must conform to a pattern of behaviour in order for it to be a ‘general practice’:  even less is there any need for every State in the world to conform. It is, however, necessary that those States whose interests are particularly affected by the rule should participate in the practice.”154 Similarly, the subjective element of custom that captures the sense of legal obligation is difficult to ascertain.155 It is easy to see why it is challenging to establish whether the psychological component of a customary rule indeed exists. Statesmen often do not explicitly declare that their actions are in line with international law or that they indeed believe a certain expectation or pattern of behavior to be the law. Despite the uncertainty surrounding custom as a source of law, these unwritten norms continue to matter in modern international law. Although more constricted than in the past, custom fills in the gaps of treaties, regulates conduct of nonparties to international agreements, and governs behavior in areas where states’ conflicting political interests impede the treaty-​creation process.156 The position and character of custom, as well as the requirements for its formation as a binding source of law, reflect the evolutionary character of international law. Whereas in the past, custom had to be based on long-​lasting practice, currently it takes considerably less time for customary law to emerge.157 In general, the concern with the passage of time in the context of customary international law centers on the establishment of authority. As Lowe writes, “It is necessary 152 Diehl and Ku 2010, 40. 153 Cassese 2005, 167. 154 Lowe 2007, 37. 155 In other words, it is difficult to know that states are indeed convinced of “conforming to what amounts to a legal obligation.” The North Sea Continental Shelf Cases, International Court of Justice, Judgment of February 20, 1969, para. 77. 156 Lepard 2010. 157 Roberts 2001.

 

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to show that a putative rule is rooted in the community, and not an ephemeral reflection of the views or aspirations of particular litigants or lawyers.”158 The ICJ has in its jurisprudence confirmed that custom is by no means obsolete as a source of states’ legal obligations.159 In fact, some scholars argue that custom is enjoying a revival in international law. While it used to be considered an emblem of international law’s conservatism and lack of progress, it has since become a vehicle of change, adapting treaty rules to the fluctuating requirements of today’s community of states.160 Generally, there is no hierarchy between custom and treaties, and either can regulate any subject matter. But a small percentage of international norms, some of which may be customary, enjoy a specific status. From these peremptory norms, called jus cogens, no derogation is allowed.161 Article 53 of the Vienna Convention provides a definition of jus cogens as a norm which is “accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”162 Judging from the jurisprudence and practice of international courts, several norms belong most firmly in this category: rules against aggression, genocide, piracy, and forceful acquisition of territory, as well as the principle of self-​determination of peoples. In addition to customs applicable to all states, there are plenty of local customary rules binding only on states of a specific geographical area. Existence of such local customs has been recognized by the ICJ in its judgments.163 In the Islamic legal tradition, urf, custom or usage, although strictly speaking not a source of law, constitutes an important cradle of legal obligations. Islamic law stipulates that everything which does not cross the limits established by God is permitted, and customary norms of behavior often fill in legal lacunae.164 The literal meaning of urf is “something that is known,” or practices of Muslims. Contrary to the Western notions of custom as residing outside the bounds of law,

158 Lowe 2007, 41. 159 Gabčikovo-​Nagymaros Project (Hungary v. Slovakia), ICJ Judgment of September 25, 1997, ICJ Rep 1997, 7; and North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), ICJ Judgment of February 20, 1969, ICJ Rep 1969, 3. 160 See Cassese 2005, 166. 161 See Aust 2014. 162 Vienna Convention on the Law of the Treaties, May 23, 1969, UNTS vol. 1155, p. 331. 163 For example, in the Asylum case the Court discussed regional customs peculiar to Latin American States with regard to granting diplomatic asylum (Colombia v. Peru, ICJ, November 20, 1950, ICJ Rep1950, 266–​289). Another example is the Right of Passage over Indian Territory case when the Court ruled that a local custom may be a source of legal obligation (Portugal v. India, ICJ Judgment of April 12, 1960, ICJ Rep 1960, 6). 164 Rosen 2000, 181.

 



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urf is seen in many ILS not as separate from sharia, but as a locally acceptable variation or usage of sharia. Thus, rather than constituting dichotomous and exclusive categories, sharia and custom overlap and fuse in meaningful ways that are acknowledged by scholars, practitioners of Islamic law, and the average Muslim person.165 As Rosen suggests, “custom and nonjudicial modes of addressing conflicts are, therefore, not regarded as separate sources of law because they serve, both legally and culturally, as residual categories for all local practice not forbidden by the Quran.”166 Historically, mostly from the Ottoman times on, local customs were considered an acceptable basis for a qadi’s decisions and thus were explicitly quoted in judgments.167 In fact, judicial reliance on local custom invigorated the qadi justice, because people had almost no hesitation bringing cases to the courtroom for resolution. Custom continues to brings local flavor to ILS’ domestic legal systems: a situation similar to international law, where there are many customs confined to particular geographical regions.168 In the majority of ILS, urf is an important part of the legal landscape, appearing in judgments and books of jurisprudence. As long as customary local practices are not explicitly prohibited by sharia, urf is used in place of, or as a supplement to, written law.169 The Majalla, the 1877 civil code of the Ottoman Empire, devoted several of its introductory articles to custom and reiterated traditional Arab legal maxims, such as “legal rules change with time” and “custom binds like a contract.”170 By way of contemporary illustration, Morocco’s family code, the Moudawana, talks about customary practices in the context of engagement,

165 Qadi played a vital role in incorporating custom into Islamic law, guided by a hadith that “whatever is considered good by the Muslims is good in the eyes of God.” Thus, qadi exercised discretion with regard to what customary law would work well in the context of a particular court case. 166 Rosen 2000, 85. 167 Vikør 2005, 210; Sonbol 2003, 234 168 See Hussin (2016) for an excellent discussion of the role of local law in Malaysia. Customary norms may vary regionally within one country. For instance, in Nigeria, “customary law is as multifarious as are Nigeria’s many ethnic groups” (Ostien and Dekker 2010, 585). 169 Historically, in many instances, unwritten customary norms constituted a stronger legal source than a written document or a contract. Such was often the case in the context of the law of the sea (Khalilieh 1998, 15). 170 Articles 39 and 43 of the Majalla, as cited in Mallat 2007. Majalla is the nineteenth-​century Islamic Civil Code that not only transformed but also reinforced traditional Islamic law. It comprised sixteen books preceded by an introduction, covering a wide range of substantive and procedural issues, including contracts, tort, and civil procedure. As a general pattern, the Majalla remained in force in several ILS until nationally tailored civil codes came into being, such as the 1949 Syrian civil code and the 1968 Kuwaiti civil code. Although the Kuwaiti civil code was not promulgated until 1980, the 1960 Law on Commercial Companies contained a significant portion of the subsequent civil code (see Huneidi 1986). In Jordan, the Majalla provided the basis for law until 1976, when the Jordanian civil code was promulgated.

 

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financial maintenance in marriage, kinship, and commitment.171 The Qatari 2004 civil code references custom nineteen times and establishes customary practices as a subsidiary source of law in the absence of statutory provisions or relevant sharia proscriptions.172 Though some may see custom as calcifying traditional laws, in more than one way it also provides an indispensable vehicle of subtle change in the Islamic legal system.173 As I mentioned in ­chapter 2, ILS’ constitutions often refer explicitly to custom and tribal traditions.174

Rule of Law While debates over the meaning of rule of law are certainly important, I leave this task to legal scholars. In doing so, however, I recognize that there are many definitions of rule of law, some more encompassing than others, some that emphasize formal aspects, and others that home in on substantive values. Conceptually, the term “rule of law” denotes a set of norms and principles closely associated with legality and broader notions of justice. It is a vehicle for establishing and systematizing authority within a collectivity. As such, the substantive contents of the rule of law remain contested across different societies and time periods. According to Dicey, rule of law comprises three basic elements: the unquestionable supremacy of law as opposed to the use of arbitrary power, equality in the eyes of the law for all citizens and government, and the privileging of the judicial process.175 The core definition of rule of law, regardless of cultural and political system, seems to suggest that law must apply to everybody in an equal way, including the sovereign. Thus, state powers cannot be exercised in an arbitrary manner. Laws must be clear and accessible.176 171 Article 5 states that an act of engagement should include “the reading of the Sura of Al Fatiha from the Holy Quran and the customary exchange of presents” (the Moroccan Family Code of February 5th, 2004); see also Articles 189 and 205. 172 Law No. 22 of 2004 Regarding Promulgating the Civil Code 22/​2004, Article 1:  “Where there is no statutory provision, the Judge shall rule according to the relevant provision of the Islamic Shariah, if any. Otherwise the Judge shall rule according to the customary practice. In the absence of such customary practices the Judge shall rule in accordance with the rules of justice.” 173 See Libson 1997. But see Ford (1995) for an extensive discussion of how the concept of custom in international law differs from that of Islamic law. Ford argues that derogation by practice, which is present in international law, is formally prohibited in Islamic law (pp. 523–​525). 174 For an interesting analysis of the interaction between state law and tribal customs, see Hamoudi et al. (2015). The authors argue, in the context of the southern part of Iraq, that inconsistency between two legal systems may not automatically lead to conflict, because “inconsistent legal systems may just as readily cooperate with one another using their disparate rules to maintain order as they might be in conflict over which rules to apply” (p. 216). 175 Dicey 1889. 176 See Chesterman (2008); Macedo 1994; and Raz (1977) for more discussion of this issue.

 



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Having briefly addressed its meaning, I now explore the rule of law’s presence in international law and Islamic law. In doing so, I also talk about the broader notion of justice, since justice is a major theme of law and legality.177 Moreover, in the Islamic legal tradition, the idea of law, or more specifically, the supremacy of law, is directly linked to justice.178 We will find that although the meaning of justice may be quite different in the two legal systems, and the source of justice, God, in Islam has no clear counterpart in international law, common to both is a fundamental pursuit of justice as a means to peaceful coexistence. Judge Rosalyn Higgins, former president of the International Court of Justice, observed that “the concept of the ‘international rule of law’ is still a work in progress.”179 It is reasonable to expect that any attempt at legalization of interstate interactions is founded on the conjecture that law is somehow objective and unbiased and improves the operation of any community.180 This law stands in contrast to states’ political preferences and power politics, which are hardly impartial.181 In general, rule of law has a broader meaning at the international level. According to Corell, “the concept of ‘rule of law among the nations’ may have a richer association; it may include also harmonious interaction of internal and international law, in which international law has supremacy.”182 States’ actions suggest that most governments care about compliance with international law, and about their reputation. It’s not an overstatement to suggest that the international community expects states to adhere to the rule of law not only in the domestic realm, but also internationally. The mandate of compliance with international law is often interpreted as an essential precondition for state existence. Fundamental principles of bona fides and pacta sunt servanda are firmly grounded in the global order.183

177 In fact, several theories of rule of law directly rely on a substantive understanding of justice, framing rule of law as an amalgam of ideals, rights, and normative principles (Dworkin 1985). 178 Brown 1997. 179 Speech by Judge Rosalyn Higgins, “The ICJ, the United Nations System, and the Rule of Law,” November 13, 2006. 180 See Hurd 2014. 181 See Koskenniemi 1990. 182 Speech by Hans Corell, Under-​Secretary-​General for Legal Affairs, the Legal Counsel of the United Nations, “Prospects for the Rule of Law among Nations,” lecture at the United Nations Vienna International Centre, February 24, 2004. 183 Bull 1977. In the context of international law, bona fides denotes good faith, or acting without deceit, and instead with honesty, fairness, and reason in all interstate relations. Pacta sunt servanda, one of the most important expressions of bona fides, means that all pacts/​promises must be kept (for more discussion, see Mitchell and Powell 2011). One of the first writers on public international law, Gentili, argued that good faith constitutes a wide ethical and legal principle that should be upheld in international relations. Drawing on the tradition of Roman law, Hugo Grotius granted bona fides a place among the universally accepted foundations of the law among nations.

 

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The UN Charter expresses its hope “to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.”184 This means that law, not power, should be the basis for resolving disputes.185 Power-​based considerations, coupled with states’ innate propensity to further their own interests and agendas, mean that international law is at times trampled upon. This in turn may suggest that international law is not always equally and indiscriminately applied to all.186 In the words of Koskenniemi, “The fight for an international Rule of Law is a fight against politics, understood as a matter of furthering subjective desires and leading into an international anarchy.”187 But, as in the context of any legal system, one has to distinguish between the principle or ideal of rule of law and the pragmatic reality. Although the domestic/​international analogy is not straightforward in this context, principles of rule of law as well as justice constitute premises of international law and courts.188 Thus, the International Court of Justice’s proper function is to administer justice through the application and interpretation of international law, which deepens international society’s legal cohesiveness.189 More generally, as Alter shows, international courts “are increasingly part of legal contestation about the meaning of international law and what government respect for the rule of law entails.”190 Like a good domestic court, an international court as an inherently legal institution is to embody the international rule of law and justice.191 According to Ratner, “The rules and structures of international law turn out to have their own morality and represent a real-​world, albeit far from ideal, incarnation of a vision of global justice.”192 Justice and the notion of supremacy of God’s law are the foundation of sharia.193 Ruthven writes, “If one could sum up in a phrase the essential difference between the two great western monotheisms, one might say that whereas Christianity is primarily the religion of love, Islam is above all the 184 UN Charter, Article 1.The Charter’s Preamble also mentions the resolve “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained.” 185 See Chesterman 2008. 186 See Simpson 2004; Goldsmith and Posner 2005. 187 Koskenniemi 1990, 5. 188 See Hurd 2017, for an interesting analysis of the rule of law in the domestic and international realms. 189 Gross 1971, 259. Beth Simmons (2009, 48) notes that the ICJ has articulated “for a global audience Western conceptions of the rule of law.” 190 Alter 2014, 28. 191 Helfer and Slaughter 1997; Powell 2013a. 192 Ratner 2015, 2. 193 See Bassiouni 2014; and Fadel 2010.

 



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religion of justice.”194 The Islamic conception of justice is absolute in nature, and it is to be pursued not only within the Muslim community, but also with the non-​Muslim world, transcending any consideration of race, religion, or gender.195 Several Quranic verses convey the message of justice:  “O ye who believe! Stand out firmly for Allah, as witnesses to fair dealing, and let not the hatred of others to you make you swerve to wrong and depart from justice. Be just: that is next to piety: and fear Allah.”196 The ongoing pursuit of justice—​as a natural responsibility of the human kind—​is a precondition of a lasting peace between individuals as well as between states.197 Since the emergence of Islamic polities, Muslims have attempted to create a society guided by God’s laws. Rule of law takes on a specific meaning in these polities. Hallaq observes that “if God is the only sovereign—​which is to say, if God is the ultimate source of moral authority—​then any system that regulates human behavior must heed the general norms and technical rules and regulations derived from and dictated by the higher moral principles. This, for Muslims past and present, is the true and ultimate meaning of the rule of law.”198 A ruler’s political powers are contractual in nature and can be understood as a form of trusteeship. Islamic jurists have extensively written about supremacy of law, arguing that all actions of the public authorities lack validity unless they are taken in accordance with the law.199 According to the Quran, judges must follow law in their decisions and no ruler can interfere in this process.200 In a way, judicial independence was the cornerstone of Islamic law.201 Judicial decisions were held in the utmost esteem, regardless of the ranking of the judge. The fact that sharia knew no formal appeal from judicial decisions substantially strengthened judicial independence. At the same time, because it was the jurists who were expounding upon law, the state

194 Ruthven 2006, 219. 195 See Bassiouni 2014. 196 Quran, Sura 5, verse 8. In 2012, 97 percent of ILS’ constitutions contained references to justice. For instance, Saudi Arabia’s 1992 Basic Law of Governance (Article 8) states that “the rule in the Kingdom of Saudi Arabia is based in fairness (justice), consultancy (consultative) and equality, in conformity with the precepts of the Islamic Shari’a.” 197 Abu-​Nimer 2010, 77. 198 Hallaq 2013, 158. 199 See Hallaq 2005. 200 Two verses of the Quran directly refer to this issue: Sura 5, verse 49, “So judge between them by that which Allah has revealed,” and verse 45, “Whoso judges not by that which Allah hath revealed, such are wrongdoers.” Initially, the judge was a person of celebrated and incomparable position, and was referred to as the ruler through law (Weeramantry 1988, 79). 201 In 2012, 93 percent of ILS’ constitutions included judicial independence, while only 59 percent mentioned rule of law.

 

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itself was “a state under the law.” 202 Thus, scholars, the state, and the people were to operate within legal limits established by God. Of course, as with any legal system, whether domestic or international, the ideal of rule of law gets compromised by political realities. As is true in the Western world, practices of ILS often depart from the tenets and ideals of sharia and bow to the demands of coercive governance.203 In the twenty-​first century, the rule of law suffers in several ILS:  judicial independence is compromised, courts are marginalized, there is a lack of systematic case reporting, and judges are strategically chosen by political leaders.204 While all legal systems, some much more than others, face challenges, rule of law’s predicament in ILS necessarily has to do with the dilemma between Islamic governance and the modern paradigm of the secular nation-​state.205 One must also take into consideration socioeconomic conditions and violent political movements, both of which frequently have a shattering effect on the quality of governance in many ILS. Islamic law, like international law, embraces the pacta sunt servanda principle.206 The Quran obliges all Muslims to keep their contractual promises by stating, “O ye who believe! Fulfill (all your) obligations.”207 Notably, many 202 Al-​Khasawneh 2014, 12; available at http://​www.barcouncil.org.uk/​media/​291167/​eighth_​ rule_​of_​law_​lecture.pdf. 203 The period of national independence after the fall of the Ottoman Empire witnessed a substantial weakening of the rule of law when the judiciary in many cases became a tool of the state. More generally, see Bassiouni 2014; and Platteau 2017. 204 Mallat (2007, 214–​215) reports that in some Arab jurisdictions, finding judicial decisions is either impossible or very hard and cumbersome. For example, decisions of the Egyptian Court of Cassation were published six years behind schedule in the 1990s. However, some ILS such as Tunisia, Iran, Morocco, Lebanon, and Jordan have a better system of case reporting, often thanks to private publishing companies. 205 Hallaq 2013. It is also important to recognize that there have been, most certainly, secular rule-​of-​law movements in several modern-​day ILS. Important examples are the 2007 Pakistani lawyers’ protests. More generally, in contemporary ILS, considerations of upholding the principle of rule of law are frequently advanced separately from Islamic law. As Hamoudi (2008) argues, sharia-​ grounded arguments are often brought up by Islamist groups as a means of pushing back against Western political or cultural values. 206 See Bassiouni 2014; and Fadel 2010. 207 Sura 5, verse 1. The Quran also mandates that Islamic collectivities, such as tribes, nations, and states, “fulfill the Covenant of Allah when you have covenanted” (Sura 16, verse 91) and avoid fighting with “those who join a group, between you and whom there is a treaty (of peace), or those who approach you with their breasts restraining from fighting you as well as fighting their own people” (Sura 4, verse 90). On a more general note, the Islamic version of pacta sunt servanda is elevated by the Quran to the level of a religious duty for all Muslim followers. This principle is to be held in utmost respect not only in the context of relations between the Muslim collectivities, but also with non-​Muslim entities. In fact, as Badr (1982, 59) rightly noted, “The duty of honoring a treaty with non-​Muslims is even given priority over the duty of mutual help among believers where the two duties are in conflict” (Sura 8, verse 72).

 



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Islamic scholars draw no distinction between domestically concluded contracts of a civil or commercial nature and agreements between states. Both forms of agreements have the same validity. Interestingly, 1963 arbitration proceedings between the Kingdom of Saudi Arabia and the Arabian-​American Oil Company (ARAMCO) declared that “Moslem Law does not distinguish between a treaty, a contract of pubic or administrative law and a contract of civil or commercial law. All these types are viewed by Moslem jurists as agreements or pacts which must be observed, since God is a witness to any contract entered into by individuals or by collectivities; under Moslem law, any valid contract is obligatory, in accordance with the principles of Islam and the Law of God, as expressed in the Quran: ‘Be faithful to your pledge to God, when you enter into a pact.’ ”208

Conclusion There are important points of contact between international law and Islamic law, points that should be clearly isolated, analyzed, and accurately labeled. Global dealings and practices of the Islamic milieu are informed and transformed through the way that the Islamic legal tradition interacts with international law. ILS as collectivities operate in the context of two normative systems that coexist side by side. In an important way, Islamic law provides lenses through which ILS conceptualize interstate relations. The idea of subjugation to an additional value system—​that of Islamic law—​looms larger as an issue for ILS than for any other countries where religion plays an important societal role. Nevertheless, in this context, it is useful to think about whether religious beliefs are truly different from other beliefs, such as beliefs in supreme, overarching values. As An-​Na’im explains, “it is not true that international law seeks to achieve order without belief, unless one limits the realm and scope of belief to doctrinal religious belief, which was never true of Muslims anyway. International law is indeed based on shared belief, such as belief in the rule of law, in liberal values of equality and justice, or at least in the desirability and possibility of peace.”209 Mohammed Al Qasimi once told me, “There is a book called Al-​Siyar Al-​Kabir, written by Shaybani. This is the counterpart of Grotius’s book On the Law of War and Peace. So this is the main source for Islamic international law. It contains very similar principles and ideas about the nature of relations between Islamic states and other states.”210 But there are also substantive and procedural areas 208 Saudi Arabia v. Arabian American Oil Company, 1963, 27 I.L.R. 117. 209 An-​Na‛im 2004, 164–​165. 210 Author interview with Professor Mohammed Al Qasimi, College of Law, United Arab Emirates University, Al-​Ain, March 2013.

 

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where Islamic law and international law diverge, insofar as they lack analogous concepts. Chapters 5, 6, and 7—​where I empirically consider ILS’ preferences toward international conflict management mechanisms—​tell an interesting story about how the dual pull of Islamic law and secular law within ILS’ domestic legal systems matters. If we are to develop a meaningful understanding of how peaceful settlement works, we must gain knowledge of differences and similarities between the Islamic legal tradition and classical international law. In the following chapter, I lay out the theory of Islamic peaceful dispute resolution, which provides a clear picture of the processes that define ILS’ preferences toward international conflict management.

 

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A Theory of Islamic Peaceful Resolution of Disputes The hadith of the Prophet and other sources teach that Muslims are brothers and constitute a brotherhood. So Muslim countries should not be hostile to each other. They should instead try to conciliate. —​Aida Othman, Malaysian law practitioner1

Any group or community has to institutionally handle conflict among its members. At the level of the international system, disagreements between states are commonplace. The means used to manage conflict—​as a simple form of social interaction—​vary across legal traditions, cultures, and time. These differences are based on how each society defines law and understands the nature of conflict, justice, and rule of law.2 A state’s domestic legal system, in turn, reflects how the society grapples with the process by which law can solve disputes. In a meaningful way, “law comes later than the moral knowledge.”3 In this context, several questions arise. Does the restoration of a relationship between the aggrieved parties matter in how disputes are settled? What is the relationship between the judge and the disputants? When are settlement decisions considered legitimate? Each legal system gives divergent answers to these questions. Approaches or paradigms of conflict resolution are sometimes deep-​seated and strongly engrained in the fabric of a state, reflecting not only its domestic legal system, but also culture and religion.4 How international law regulates and institutionalizes 1 Author interview with Dr. Aida Othman, a partner at Zaid Ibrahim & Co., Malaysia (a member of the ZICO law network of entities), August 28, 2015. Dr. Othman specializes in Islamic banking and finance, Islamic capital market instruments, and takaful products and operations. She also advises on sharia compliance and governance, including on the legal and regulatory framework for Islamic finance. 2 Cohen 2001. There is a voluminous scholarship on cultural and linguistic differences in the context of dispute resolution. See Abu-​Nimer 2010; Cohen 1997, 2001; Rehman 2011. 3 Author interview with Imam Ibrahim Amin, Oxford, UK, May 16, 2016. 4 Cohen uses the term “paradigms of conflict resolution” (2001, 26). Islamic Law and International Law: Peaceful Resolution of Disputes. Emilia Justyna Powell, Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/ 9780190064631 .001.0001

 

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dispute resolution is largely based on idiosyncratic features of Western legal traditions: common law and civil law. In particular, the Western understanding of how a conflict should be resolved and what it means to administer justice is deeply implanted into international institutions—​the issue which I addressed in ­chapter 3. This chapter introduces the theory of Islamic dispute resolution and sheds light on how the Islamic approach to conflict settlement shapes contemporary interstate dealings of ILS. Fundamental to my argument is the distinction between nonconfrontational practices of conflict management embraced by the Islamic legal tradition and the confrontational litigation culture present in the West. Careful parsing of the distinctions between Islamic and Western dispute resolution models opens up new ways of conceptualizing sharia’s presence in interstate dealings. I seek to understand how creeds of Islamic law, as embedded in ILS’ domestic legal systems, get translated into these states’ preferences toward international conflict management venues. My argument is that an interesting intersection of domestic and international law occurs when ILS make their decisions regarding what dispute resolution forums to choose. Setting political and strategic considerations aside, there is a powerful drive on the part of the Islamic milieu to settle their international disputes according to procedures embraced by sharia. Thus, I argue that the promotion of Islamic collective values and brotherly informal settlement carries over from the domestic realm to international relations of ILS.5 Importantly, however, there is no one way in which the Islamic legal tradition shapes ILS’ preferences toward international settlement venues, because the degree of Islamic law’s presence in the domestic laws of these states varies across time and space. Saudi Arabia or Mauritania, where almost the entire legal system is charged with the implementation of sharia (however interpreted), have different preferences from Lebanon and Indonesia, where only parts of state governance aspire to employ Islamic law.6 The depth of Islamic law’s amalgamation into ILS’ official legal systems shapes how much of sharia gets projected onto interstate relations. I argue that, ceteris paribus, ILS whose legal systems are deeply infused with tenets of Islamic law are likely to gravitate toward international settlement venues that resemble traditional Islamic law:  third-​party non-​binding methods, such as conciliation and mediation. In contrast, ILS whose domestic

5 As I mention at the end of this chapter, in the context of Islamic-​Arab society, it is difficult to determine to what extent collective values can be attributed to Islam itself, and to what extent to the cultural values embedded in Arab tribal societies. 6 As I mention in c­ hapters 1 and 2, there is a vibrant discussion in the literature about whether it is feasible to include “true sharia” in state institutions and laws. For more discussion, see Ahmed 2016; and Hallaq 2013.

 



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legal systems embrace secular features are more receptive to international legal mechanisms, namely, arbitration and adjudication. In other words, the design of their domestic legal systems—​in particular the balance between Islamic law and secular law—​shapes ILS’ preferences toward international conflict management mechanisms. Hence there is an important design element that links domestic and international venues for dispute resolution. The theory presented here challenges the treatment of the Islamic milieu as a homogenous category where the presence of sharia shapes states’ preferences in a uniform manner. Thus, not only do I hope to provide a description of Islamic nonconfrontational practices of conflict management, but I also hope to point to shortfalls of many of the assumptions about the Islamic milieu’s views of institutionalized means of global justice. My theory provides a conceptual toolbox that enables me to empirically reconfigure the Islamic milieu’s responses to the variety of international conflict management mechanisms. This is not to say that other factors do not shape states’ choices of settlement venues. They do indeed. For instance, power relations between disputants, strategic considerations, strength of legal claims, concerns for domestic politics, regime type, the cost and length of proceedings, as well as feasibility of future compliance factor into states’ decisions to use the various mechanisms.7 Nonetheless, congruence between domestic legal design and the legal design of international resolution venues exerts an important measure of influence on states’ choices. The process of venue selection illustrates how micro-​level processes and factors matter in shaping states’ decisions on the international arena. I  argue that in the context of international dispute resolution, it is the set of interactions between international and domestic rules that constitute “microfoundational relationships” capable of explaining states’ behavior.8 My approach is in no way meant to discount the influences of power, material gains, and other non-​law factors. I  return to this important point at the end of this chapter, arguing that ILS’ preferences partially differ from preferences of other states. It is the commitment to Islamic law that explains this partial departure. The chapter is organized as follows: I begin by describing the features of international dispute resolution methods ranging from negotiations to binding third-​ party methods. I then present my theory of Islamic peaceful resolution, which 7 See Alter 2014; Davis 2012; Goertz, Diehl, and Balas 2016; Huth, Croco, and Appel 2013; Koremenos 2016; Scott 2014. As Koremenos (2016, 222) argues, states may be drawn toward the informal resolution procedures because of their more calculable character, their “reduced cost, confidentiality, and expedited procedure.” I address these issues at length in c­ hapter 5, where I focus on ILS’ preferences toward conflict management mechanisms in the context of territorial disputes. In the context of international trade regime, Davis (2012, 6) argues that domestic politics plays a crucial role in generating “demand for adjudication as an enforcement strategy.” 8 Chaudoin, Milner, and Pang 2015, 303. See also Hedström 2005.

 

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outlines its characteristics and logic. Examples of contemporary applications of sharia in ILS’ domestic governance further shed light on how deep-​seated these traditional Islamic norms of conflict management are. ILS do not treat international law in a uniform way because some of their institutions, although permanent, offer a degree of flexibility to the states that use them. This is particularly the case for the non-​binding mechanisms, mediation and conciliation. In a way, therefore, ILS do not simply reproduce patterns established by the West, patterns entrenched in international law, but subtly transform the existing structures to suit their own preferences.

Peaceful Settlement of Disputes in International Law The proper management and resolution of international disputes is a bedrock of international law. The UN Charter, in Article 2(3), articulates it clearly by requiring states to “settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.”9 All means of peaceful settlement—​negotiations, good offices, inquiry, conciliation, mediation, arbitration, and adjudication—​are embraced by international law and organizations, giving states a multitude of options to settle their grievances. Of course, the lack of truly compulsory jurisdiction, equivalent to what is the norm in domestic courts, suggests that disputing states may never face adjudication. States tend to resist outside pressures to engage in judicial settlement, preferring less formal settlement venues.10 Nonetheless, international law’s reach is not limited to the courtroom. Law and the possibility of adjudication loom over all contentions, even those lying outside international courts’ jurisdiction.11 While law is employed primarily in arbitration and adjudication, legal arguments have a role in all resolution methods. This is an important point: if Western-​derived rules are embedded in some way in all international settlement venues, ILS have to carefully consider their settlement options. Are

9 The UN Charter website: http://​www.un.org/​en/​charter-​united-​nations/​index.html. 10 Ratner 2006, 821. The scholarship has been prolific in trying to explain why and under what conditions states use legal mechanisms. See Allee and Huth 2006; Davis 2012; Gent and Shannon 2010; Helfer and Slaughter 1997; Huth, Croco, and Appel 2013; Mitchell and Powell 2011; Posner and Yoo 2005; Powell and Wiegand 2010 and 2014. Koremenos (2016) discusses why states include specific dispute resolution provisions in their agreements. I return to this topic in ­chapter 5 in the context of territorial disputes. 11 I elaborate on the definition of a legal dispute in c­ hapter 2, under the International Law section. See also Bilder (1998) for his discussion of out-​of-​court effects.

 



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they willing to subject themselves to the jurisdiction of international courts or arbitration tribunals, or would less formal venues better satisfy their preferences? In bilateral negotiations—​a method least laden with procedural details—​ countries attempt to resolve their differences without an intermediary. It is via the simple exchange of views, dialogue, and consultation that most interstate contentions are indeed settled. The ICJ in its jurisprudence has repeatedly recognized the importance of negotiations. For instance, in the 1969 North Sea Continental Shelf cases, the Court stated that “there is no need to insist upon the fundamental character of this method of settlement.”12 During negotiations, states’ representatives present their own interpretation of facts and rules, but as Baxter notes, international norms of behavior introduce “new standards of relevance for the negotiations between the parties. Certain arguments will be ruled out.”13 In other words, international law constrains disputants’ behavior in limiting the set of acceptable arguments that can be placed on the bargaining table.14 Importantly for ILS, negotiations offer quite a bit of flexibility in terms of form, limits, and the basis for dispute resolution. ILS may simply choose not to center negotiations on issues of interpretation of international law but phrase their arguments in the context of sharia—​a point central to my theory.15 Negotiations as a dispute settlement method are frequently a de facto prerequisite to adjudication. An international court can be called upon only if a contention at hand is of a legal nature. In other words, at the heart of the contention there must be a specific question of a legal nature. Only if that is the case can international law as applied by a judgment of an international court provide a solution. Frequently, it is during negotiations that the parties can isolate a specific question of a legal nature that lies at the heart of their dispute. Alternatively, the parties may conclude that their dispute is merely of a political nature and does not, therefore, fall under the jurisdiction of an international adjudicator. As Merrills notes, “negotiations will often be needed to make the points of disagreement sufficiently concrete for reference to a court or tribunal to be possible.”16 12 North Sea Continental Shelf Cases (Federal Republic of Germany v.  Denmark; Federal Republic of Germany v. Netherlands), ICJ Judgment of February 20, 1969, ICJ Rep. 1969, 3 at 48. 13 Baxter 1980, 565. 14 As Ratner (2006, 821) put it, standards and norms of international behavior “represent a sort of fact on the ground that neither party can ignore.” 15 Nevertheless, interpretation of international law is often brought up in the context of territorial disputes, because most of them entail some form of disagreement over treaty stipulations or colonially imposed borders. For example, the many attempts at peaceful settlement during the Bahrain-​Qatar contention revolved around interpretation of agreements (see Schulte 2004, 234–​ 235). Similarly, negotiations between Afghanistan and Pakistan over their disputed border centered on interpretation of international law: in this case the validity of the 1893 Durand Treaty delineating the border and which Afghanistan claimed was signed under duress. 16 Merrills 2017, 19.

 

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Importantly, however, as stated by the ICJ, the absence of negotiations does not per se preclude an international court from exercising jurisdiction over a dispute at hand.17 This is especially so in cases where one disputant is explicitly not willing to attempt resolution via negotiations.18 Serious disputes may cause the disputants to break diplomatic relations. This decision in essence rules out bilateral talks. This was the case in the dispute between the United States and Iran following the seizure and detention of US diplomats and consular staff in Tehran. In such circumstances, an intermediary may be asked to come in with the goal of “reconciling the opposing claims and appeasing the feelings of resentment which may have arisen between the States at variance,” as the 1899 Hague Convention stipulates.19 The UN Charter lists the most common forms of non-​binding third-​party methods: inquiry, conciliation, and mediation, but states can employ other methods of their choice. Unlike the political nature of negotiations, resolutions involving third parties involve more specific procedures and rules. Good offices may greatly expedite settlement of a contention. A good officer’s task is to persuade the disputants to start communicating without actively participating in the crafting of settlement terms.20 When the contention centers on a specific question of law or a fact, inquiry can prove useful. A neutral intermediary is brought in to provide an objective evaluation of the situation and to inquire into facts and pertinent law.21 At times inquiry may evolve into quasi-​judicial proceedings. As one would expect, this transformation might occur when jurists are asked to serve as intermediaries. In such circumstances, a commission’s findings may actually put forward legal rulings, de facto turning inquiry into arbitration.22 Conciliation, in a way, is “a kind of institutionalised negotiation,” whereby the intermediary produces a proposal or a series of proposals that set out the terms 17 This general norm may not hold if a treaty or a convention obliges the disputants to negotiate, exchange views, and the like, before more formal methods are employed. Such is the case in the UN Convention on the Law of the Sea. According to Article 283(1), if a dispute over interpretation or application of the Convention arises, the parties “shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or some other peaceful means.” Yet, in its jurisprudence, the International Tribunal for the Law of the Sea has repeatedly interpreted this requirement in a relatively loose way. Also, if a dispute over land, or any other issue, arises out of a particular treaty, states may be bound to negotiate in good faith by the general norms of international law (see Merrills 2017, 19 and 24). 18 See, for instance, United States Diplomatic and Consular Staff in Tehran, ICJ Judgment [1980] ICJ Rep. 3. 19 The Hague Convention for the Pacific Settlement of International Disputes, July 29, 1899, Article 4. 20 Collier and Lowe 1999, 27. 21 Collier and Lowe 1999, 24. 22 Merrills 2017, 55.

 



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of the settlement.23 There is no final binding decision, but the commission’s proposal may play a crucial role in bringing a dispute to an end. What distinguishes conciliation from mediation is that a conciliator usually offers proposals officially and based on independent investigation. In contrast, a mediator typically suggests settlement informally and on the basis of material provided by the parties.24 Overall, conciliation is more formal in its procedure than mediation, although both methods retain a non-​litigious character, as the parties are under no obligation to accept the intermediary’s recommendations. Subsequently, in both methods disputants maintain partial control over the contention. Arbitration and adjudication, the two binding third-​party mechanisms, constitute legal means of settling disputes according to international law, with disputants agreeing in advance to accept the award (arbitration) or judgment (adjudication). Whereas adjudication entails the submission of a dispute to a permanent court whose composition is largely fixed, in arbitration the parties choose arbitrators. The development of arbitration, as a method of dispute resolution, preceded the development of adjudication. In a way, arbitration provided a springboard for the emergence of permanent adjudicators. Both methods are based on relatively formal procedures of settlement, although rules of arbitration are more flexible than those of adjudication.25 For instance, states have a high degree of flexibility in deciding the type of arbitral tribunal to be set up. Furthermore, it is in the hands of the disputants to lay out the procedure and frame the issue or issues that the arbitrators are asked to consider. Prior to the proceedings, the parties also stipulate how the tribunal is to acquire evidence, whether arbitrators can issue separate opinions, and if the final award will be published. Finally, the disputants define criteria, according to which the tribunal is to reach the decision: international law, a particular delimited set of international rules, rules of a domestic legal system, international practice, or equity.26 Procedure in international courts and arbitration tribunals is methodically regulated by comprehensive statutes and rules of procedure.27 The willingness 23 Merrills 2017, 69. 24 Merrills 2017, 26. 25 I elaborate on the ICJ’s various types of jurisdiction in detail in c­ hapter 6, which is devoted to ILS’ preferences toward the Court. 26 Merrills 2017, 100–​106. 27 See the Statute and Rules of the Court (ICJ website at http://​www.icj-​cij.org). A  similar level of formalism characterizes the International Tribunal for the Law of the Sea (ITLOS), and—​ perhaps to a lesser extent—​the Permanent Court of Arbitration (PCA), both of which operate within confines of comprehensive statutes. Proceedings in the PCA are very elaborate because there are somewhat different guidelines for proceedings for disputes between states and disputes where only one side is a state. (See the PCA website at http://​www.pca-​cpa.org.) ITLOS’s rules and procedures are meticulously spelled out in its Statute, as well as its Rules of the Tribunal (see ITLOS website, http://​www.itlos.org).

 

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and ability of any international adjudicator to depart from its procedural rules varies from court to court as well as over time. For instance, although in the past the ICJ has—​albeit rarely—​agreed to accommodate the parties’ requests for slight procedural modifications, the increase in the Court’s caseload has necessitated a firmer commitment to its procedural rules.28 A  cursory look at the ICJ’s procedure is necessary to understand why some ILS might shy away from international legal mechanisms. As the main judicial organ of the UN, the Court provides an illustrative example of formalism inherent to all international adjudicators. ICJ proceedings take place in two distinctive phases: the written proceedings and the oral proceedings. The ICJ Statute is adamant on keeping both phases in each dispute, and there is a strict dividing line between them.29 Throughout the dispute, judges do not interact much with the disputants, and the written proceedings are for the most part confidential.30 There is no confrontational, face-​ to-​face bargaining in front of the judges. During the oral stage each disputant’s legal team presents its case to the bench. It is at this stage that “push comes to shove and that cases are, almost without exception, won or lost, saved or frittered away.”31 Despite being allowed to pose inquiries to the states’ representatives, the judges hardly ever do so. After the president officially closes the hearing, the Court “withdraws to consider the judgment.”32 Judges deliberate privately, in complete secrecy, and the judgment is announced in a final public sitting.33 Throughout the proceedings, an experienced lawyer’s expertise is indispensable to successfully navigate the myriad rules and procedures of international

28 Overall, disputes between states are usually more flexible and drawn out than disputes adjudicated by a domestic court. In the words of Rosenne (2003, 91), “The litigants are sovereign States which do not easily accept outside interference in how they conduct their affairs. Speed in the conduct of the proceedings is not always appropriate and the saying ‘justice delayed is justice denied’ not always pertinent, since proceedings can be significantly affected by diplomatic developments outside the control of the Court, or even of the parties themselves, and diplomacy can have its own time-​table.” 29 The ICJ might, however, allow differences in the magnitude of pleadings in each stage (Rosenne 2003, 92). 30 Written proceedings entail officially documented written communication between each disputant and the bench. Although there are no comprehensive rules outlining the form of written pleadings submitted to the Court, the fact that they are usually published assures their appropriateness. The Rules of the Court stipulate what the pleadings should contain. 31 Gaubatz and MacArthur 2001, 249. 32 Rosenne 2003, 108. 33 The rule of absolute confidentiality in judicial deliberation is considered vital to the ICJ. In fact, in the past it was difficult to discern the votes of the individual judges unless a concurring or a dissenting opinion was issued (Rosenne 2003, 92).

 



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litigation. As Ratner notes, it is not diplomats but lawyers that are in charge of the international judicial settlement process.34 International law offers states a plurality of methods for dispute settlement, with negotiations and adjudication constituting the bipolar opposites. The non-​binding third-​party methods sit in between these two extremities. Alternate legal designs of the different venues coexist, interact, and relate to states’ domestic legal systems. After all, any form of dispute resolution is fundamentally based on consideration of norms, principles, and rules. As will become clear, the substantive and procedural intricacies of the legal methods may discourage some ILS. Law as played out in the Islamic courtroom—​or for that matter, outside of it—​has a distinctive role. Only some international conflict management mechanisms suit certain ILS.35

Uncertainty and Strategic Choices States are uncertain when they choose a forum to resolve their disputes, and they are looking for clues that will help them form expectations about the settlement procedure and the settlement outcome.36 If a dispute gets delegated to an external intermediary, which is inherent to all third-​party venues, uncertainty reaches its peak. In contrast with negotiations, additional factors come into play when a third party is asked to guide the settlement. As we move toward the legal mechanisms, the binding methods, the ambiguity of international norms becomes a real challenge, even in cases where laws and facts may appear sufficiently clear.37 All courts, domestic and international, interpret law when rendering a judgment. States face a great deal of uncertainty when funneling the dispute through the binding methods, because in no case can a contestant be confident about a court’s ruling or about an arbitral award.38 Elihu Lauterpacht, 34 Ratner 2006, 814. This is especially the case in the context of territorial disputes. Disputes over territory, perhaps more so than other disputes, resemble domestic litigation because they require an astounding amount of evidence, maps, and other documents. 35 As I demonstrate in this chapter, as well as in c­ hapter 3, the fact that Islamic law and international law diverge with regards to several substantive and procedural laws, does not necessarily imply an ongoing unsurmountable conflict between these two legal traditions. For a more general argument about the possibility of peaceful coexistence between inconsistent legal orders, see, for instance, Hamoudi, Al-​Sharaa, and Al-​Dahhan (2015). 36 Powell 2015; Powell and Wiegand 2014. See Koremenos (2016, 37–​40) for discussion of uncertainty as a concept in the institutionalist literature. Koremenos conceptualizes uncertainty as uncertainty about behavior (regarding the actions taken by others), as uncertainty about preferences (regarding “what one’s partners in the potential cooperation really want out of the deal”), and as uncertainty about the state of the world (referring to uncertainty about the outcome of cooperation). 37 Kohen 2013, 14. 38 Bilder 1981.

 

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a renowned scholar and practitioner of international law, did not hesitate to recommend as a primary rule of international adjudication, to actually avoid it.39 Something similar can be said of arbitration, which, once one passes beyond the disputants’ ability to participate in the choice of arbitrators and influence the procedure, is “like going to the Court, but a different court.” 40 States, for the most part, like to retain control over a contention. Resorting to a third-​party venue, in particular a binding venue, means giving up this control. This is a hallmark of the judicial independence that undergirds a court’s legitimacy. Application of law to a particular case is to be apolitical and unbiased. Thus, the uncertainty. Furthermore, international law contains loopholes, and some substantive areas are only partially charted by law. International adjudication is in a sense an interpretive exercise whereby judges decipher which rival norms should be applied to a case at hand:  “when seeking to overturn all but the most flagrantly illegal state actions, litigants and courts must inevitably appeal to particular interpretations of such ambiguities [ambiguities between norms].”41 At times, alternative legal justifications are drafted from domestic legal systems. As Sir Arnold McNair argued more than a half century ago, “international law has recruited and continues to recruit many of its rules and institutions from private systems of law.”42 This reality has not changed much. In reaching toward domestic legal systems, an international court engages in creative norm interpretation by deciphering “when new trends in practice, as evidenced in non-​binding declarations, codes, guidelines and other ‘soft’ materials, cross the threshold of normativity and merit recognition as law.”43 Such ongoing practices further suggest that international law cannot be taken as a comprehensive legal system without normative empty spaces. Quite the opposite: it is institutionally entangled in as well as shaped by specific domestic legal contexts.44 International adjudicators have the power and the authority to defend or push against a particular way of understanding international law. In Alter’s words, international courts “contribute to constituting understandings of international law, and thereby the preferences of actors that care about the legality of 39 Lauterpacht 2009, 485. 40 Author interview with an anonymous ICJ state advocate and international arbitrator, United Kingdom, October 2013. 41 Keohane, Moravcsik, and Slaughter 2000, 461. However, as Davis (2012) argues in the context of international trade disputes, international courts are not only interpreters of rules or dispensers of punishment, but they also play a crucial role in releasing domestic political pressures. 42 International Status of South-​West Africa Advisory Opinion, Separate Opinion by Sir Arnold McNair, ICJ Rep 1950, 128 at 148. 43 Merrills 2017, 156. Similarly, international criminal tribunals extensively recruit principles that are applicable in criminal trials from domestic jurisdictions (see Mitchell and Powell 2011). 44 For an in-​depth analysis of the “international” nature of international law, see Roberts 2017.

 



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their behavior.”45 This process increases the litigants’ uncertainty, as they cannot be sure about which domestic legal system will contribute to interpretation of international norms.46 When choosing to litigate, states hope that an international court will corroborate their own domestic interpretation of international law. Judge Abdulqawi Yusuf of the ICJ has directly referred to the link between domestic legal traditions and international law: “It is not a paradox to say that the universality of international law depends on diversity. Indeed, in the case of international law, universalization and globalization do not reduce diversity; they actually promote it. For international law, universalization means borrowing and adapting concepts and principles from different legal traditions.”47 The fact that judges sitting on international courts and arbitration panels come from different legal backgrounds and are trained in different domestic jurisdictions further amplifies states’ uncertainty. This reality stands in sharp contrast with domestic courts whose judges receive their training in the same legal tradition. In this sense, Hersch Lauterpacht’s statement that “international law is the only branch of law containing identical rules professedly administered as such by the courts of all nations” does not accurately describe international law.48 Moreover, international norms are often understood, applied, and interpreted differently in different local settings. Xue Hanqin, the Chinese judge at the ICJ, proposed that “notwithstanding its universal character, international law in practice is nonetheless not identically interpreted and applied among States.”49 These divergent interpretations shape what international law is perceived to be. Policymakers’ interpretations trickle down to domestic non-​ state actors and political, religious, and social movements, as well as the public at large. States see international law per se differently.50 Further illustrative of this process is the fact that the International Law Commission periodically engages in comparative examination of how different legal traditions and domestic jurisdictions view international law in order to gradually broaden international law’s substantive spectrum. Each legal tradition produces a unique domestic community of international law academics, with different legal training, professional skills, and experiences.51 These differences are in turn embedded in textbooks and treatises on international law. As a 45 Alter 2014, 23. 46 The lack of all-​encompassing codification has important repercussions on states’ behavior. As Shaw (2003, 66) explains, states may feel uncertain because it is not always clear “where the law is to be found and how one can tell whether a particular proposition amounts to a legal rule.” 47 Yusuf 2013, 683. 48 Lauterpacht 1929, 95. 49 Hanqin 2012, 16. 50 For in-​depth discussion of comparative international law, see Roberts et al. 2018. 51 Krisch 2018.

 

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result, distinct local, national, and regional approaches to international law are perpetuated, undermining the prospect of unified international law.52 In the process of laying out procedural rules of an international adjudicator, or participating in its day-​to-​day operations, the various actors—​be they judges, litigators, or policymakers—​bring to bear their own understandings of what international law is. Richness of domestically based interpretations can potentially obscure commonalities, further increasing uncertainty that states face when attempting international arbitration or adjudication. The literature shows that the potential costs of international dispute settlement cause states to be strategic in their venue selection.53 Internal legal design of conflict management venues matters. Before an adjudicator or a quasi-​ adjudicative forum yields a decision, facts of a particular dispute are funneled through the venue’s institutional procedures. Because of the high formalism of international binding approaches, courts and arbitration panels are, to some extent, captive to their own legal design.54 Faced with uncertainty and at the same time driven to win cases, states engage in strategic behavior when seeking out a resolution venue. States forum shop. The goal is to carefully select a forum that will not only yield the most preferred outcome for a state, but also reduce the uncertainty associated with the resolution process. Before proposing a particular conflict management venue, each disputant cautiously weights the domestic and international costs and benefits associated with all available options.55 Some scholars argue that to increase the predictability of the final settlement, states prefer to use resolution methods that resemble their domestic legal institutions simply because these methods are more familiar. In the words of Zartner-​Falstrom, “Contemporary attitudes towards the authority of existing international law can best be seen as a function of a state’s historical legal tradition and how this legal tradition shapes the legal culture and institutional structures within each state.”56 In short, states entangled in disputes use their domestic legal systems as clues about an adjudicator’s behavior and the decision-​making process itself. As a result, “similarity between a domestic legal tradition and an 52 For an excellent review of the scholarship that focuses on regional and national approaches to international law, see Roberts 2017; Roberts et al. 2018; and Verdier and Versteeg 2015. 53 See Powell and Wiegand 2010 and 2014; and Scott 2014. 54 For example, most procedural rules of the ICJ have been resistant to changes in the linguistic, strategic, and political environments of global politics. 55 It is interesting to note that, as Koremenos (2016, 22) shows, “Of the agreements with formal dispute settlement mechanisms, the overwhelming majority also explicitly encourage the informal settlement of disputes.” 56 Zartner-​Falstrom 2006, 344. For an interesting argument about how legal traditions can explain states’ preferences toward international legal norms, see Powell 2015, 2016, and 2018b; Zartner 2014.

 



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international court allows a state to better understand the intricate rules of international adjudication, allows a state to predict the outcome of the in-​court proceedings better, and causes a state to feel more comfortable with international dispute resolution.”57 Importantly, disputants are able to anticipate that a court will engage in a particular method of legal interpretation if the two sets of legal rules—​domestic and international—​align with one another. The Western-​based legal design of international settlement venues considerably increases ILS’ uncertainty when they attempt to settle their disputes. Because the Islamic milieu has, by and large, not participated in the creation of these venues, and because the overwhelming majority of international judges are trained in the West, ILS have scant, if any, opportunity to embed elements of sharia into these mechanisms.58 Judge Abdulqawi Yusuf of the ICJ addressed this issue directly by stating that “in the 19th century, European states, which happened to be the most powerful nations during that period of human history, formed themselves into a sort of club of ‘founders’ which arrogated to itself the right to admit other members to the family of nations to whom international law would be applicable.”59 Islamic influences are simply nonexistent in arbitration and adjudication, both of which have been institutionally expressed almost exclusively in values inscribed within the Western legal traditions.60 As I previously explained, departures from the standard procedure, an option potentially attractive to non-​Western states facing international adjudication, are increasingly rare.61 This fact, I argue, may be troublesome to certain ILS, which upon attempting to settle their disputes via the PCA, ITLOS, or the ICJ, must accept these institutions’ existing nonnegotiable procedures.62 The Western legal training permeates almost all aspects associated with international adjudicators. From one of my interviews with a state advocate, I received the impression that the presence of Islamic legal arguments in international courts or arbitration tribunals depends almost entirely on the personal interests of judges or arbiters who might simply be curious about sharia. In his words,

57 Mitchell and Powell 2011, 74. See also Powell and Wiegand 2010. 58 For a broad analysis of Eurocentrism of international law, see Anghie 2005; and Hanqin 2012. 59 Yusuf 2013, 684. 60 The “universalist seeds” planted in the Statute of the Permanent Court of International Justice (PCIJ) were not substantive enough to ensure full and instant participation of non-​Western legal systems (see Yusuf 2013, 685). 61 Rosenne 2003. Since arbitration and adjudication are initiated when the disputants’ aim is a binding decision according to international law, adherence to a well-​laid-​out procedure is critical. 62 In the case of the ICJ, states can limit the Court’s jurisdiction via reservations. Nevertheless, the Court’s basic procedures are nonnegotiable. I address the topic of reservations in the context of the ICJ in ­chapter 6.

 

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Lawyers like me are Western educated, but my interest in Islamic law is not because of my education but purely because of my personal interests. I have a huge library in Islamic law as if I am a geek whereas other lawyers have no idea about those things. It’s not because it’s their fault, but because they are brought up in modern legal systems. They talk about it as Islamic law provides answers since they have been brought up to accept that there is Quran as the word of Allah and hadith. They get the basics but they don’t know the details.63 I return to this point in much greater detail in the empirical chapters, especially in c­ hapter 6, devoted to the Islamic milieu’s view of the International Court of Justice. In addition to the problem of uncertainty, however, there is, in the particular case of ILS, a further factor that fundamentally shapes these states’ venue choices: the nature of social interaction in dispute resolution. To ILS, the most preferred form of social interaction in the international sphere is characterized by four distinct features: a unique logic of justice, nonconfrontational dispute settlement, collective embeddedness of the third party, and incorporation of Islamic principles in the resolution process.64 Uncertainty can be mitigated. For instance, Western lawyers can be hired as state representatives in arbitration or adjudication proceedings; their knowledge of substantive international law, as well as their familiarity with procedure in international courts, certainly attenuates ILS’ uneasiness with Western legal principles. And indeed, ILS that end up at the International Court of Justice, or any other international courts or arbitration tribunals, tend to seek legal counsel from Western lawyers with extensive international experience. Even so, I argue, the fact remains that ILS simply prefer to settle their disputes in a nonconfrontational manner owing to intrinsic cultural norms of dispute resolution. In other words, even if drawing on expertise from Western lawyers helps reduce ILS’ uncertainty, it does not change the norms of peaceful resolution that are deeply embedded in the Islamic legal tradition. The next section explores the four aforementioned characteristics of ILS’ most preferred form of social interaction. International non-​binding third-​party venues such as mediation and conciliation allow ILS to fulfill their preferences regarding the nature of social interaction. In a way, these methods enable ILS to

63 Author interview with an anonymous state advocate, conducted in Brussels, Belgium, July 4, 2014. 64 To reiterate the point I made in c­ hapter 2, I recognize the interplay of Islamic law with the broader Islamic culture in this context. In fact, as Dupret (2007, 79) adequately put it, “Interpretive theory fundamentally conceives of law in holistic terms, that is, as one of the many reverberations of a larger explaining principle: culture.”

 



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customize international law to fit their needs. International legal mechanisms, by contrast, are unlikely to bear out ILS’ expectations about how dispute settlement should be carried out. Yet, as I show in what follows, preferences of all ILS toward international peaceful resolution venues are not constant across space and time, but depend on the balance between Islamic law and secular law in the domestic legal system in an Islamic law state. As I describe in c­ hapter 2, the ILS category rests on the premise of capturing unity in the face of diversity. It is the unique amalgamation of secular law and Islamic law that generates a normative framework for each of the ILS.

Islamic Dispute Resolution One of the most powerful metaphors that you can apply when you are talking about Islam is the idea that everything is ordained by God, and, to that extent, human agency is really limited. People will always find a way of ensuring that problems are adequately resolved in a way and manner that helps the community grow. —​Bishop Matthew Hassan Kukah, Catholic Diocese of Sokoto, Nigeria65

Unique Logic of Justice As Hashmi writes, in the context of relations between states, “True peace (salam) is therefore not merely an absence of war; it is the elimination of the grounds for strife or conflict, and the resulting waste and corruption (fasad) they create. Peace, not war or violence, is God’s true purpose for humanity (2:208).”66 When asked about the significance of justice in Islamic law, the ICJ’s vice president Awn Shawkat Al-​Khasawneh told me the story, dating back to the era of classical Islam, of a man who asked his friend where he should live. The friend’s advice was to live in a city where there is a running river and a just judge. According to Judge Al-​Khasawneh, this story “really indicates the centrality of justice in the religion of Islam whereas in Christianity, the idea of love is the underlying theme.”67 Interestingly, it was the notion of justice that was at the center of Jordanian King Abdullah II’s 2006 speech at the International Court of Justice: “Indeed, for Muslims, global good citizenship—​justice and integrity in

65 Author interview with Bishop Matthew Hassan Kukah, Nigeria, conducted in Notre Dame, Indiana, October 29, 2015. 66 Hashmi 2002a, 197. 67 Author interview with Judge Awn Shawkat Al-​Khasawneh, conducted in Amman, Jordan, February 18, 2015.

 

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the dealings among people, regardless of faith, race or nationality—​is a cornerstone of a righteous life. In the Holy Quran it is written: ‘Be just—​that is closer to piety.’ ”68 The notion of justice has repeatedly come up in my conversations with Islamic law scholars. One of my interviewees, Radwan Ziadeh, suggested that “even Islam in the Quran puts justice exactly on the level of belief, which is the highest level. In Islam, if you are a nonbeliever, you are non-​Muslim. That means if you don’t impose the justice system, you are a nonbeliever, you are not Muslim. This is very close to my heart, the argument of justice in Islam and how it is important.”69 Administration of justice lies at the heart of traditional Islamic court procedure. A qadi, Islamic law judge, operates within the all-​encompassing space of Islamic law, where ethics, culture, morals, and societal harmony are intertwined. As Imam Ibrahim Amin explained to me, “In an Islamic court of law, the emphasis on moral duty, on moral uprightness, moral correctness is a fundamental part of the legal process.”70 In comparison with other legal traditions, Islamic procedural law is least formalized, and quite flexible.71 This lack of formalism manifests itself in the role of the qadi, prerogatives of the parties, and the entire court proceedings. The primary goal of the judge is to enable the aggrieved parties to negotiate their own arrangements. Thus, the disputants’ individual voices are not suppressed.72 Rosen writes that “just as in Islamic architecture, music, mathematics, and social organization, the law forms an organizing framework, not a governing force, and harmony lies in allowing such lines of individual-​centered affiliation to work themselves out by the free arrangement of units according to local circumstance.”73 In an important way, Islamic law is quite different from the Western legal traditions: it finds regularity and consistency not in the application of the same laws to similar circumstances, but in “the constancy of the mode of analysis.”74 The mode of analysis refers in this context to certain procedures deployed during a trial, such as reliance on trustworthy

68 In the same speech, the king also commented on the inherent link between domestic and international principles of peaceful resolution: “Islamic civilisation upheld the primacy of settling disputes by law, not force—​among nations as among people.” “Remarks by His Majesty King Abdullah II at the International Court of Justice, Royal Hashemite Court,” King Abdullah II Official Website, October 26, 2006. 69 Author interview with Dr. Radwan Ziadeh, founder of the Damascus Center for Human Rights Studies and a Syrian human rights activist, conducted in Notre Dame, Indiana, January 22, 2016. 70 Author interview with Imam Ibrahim Amin, Oxford Centre for Islamic Studies, Oxford, UK, May 16, 2016. 71 Mitchell and Powell 2011; Glenn 2014. 72 Hallaq 2009a, 61. 73 Rosen 2000, 33. 74 Rosen 2000, 36.

 



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witnesses as well as emphasis on morals and communal interests. Careful yet flexible stepwise progression through the trial constitutes, according to Islamic law, the only way to ensure just rulings. As a result, two qadis may reach different conclusions in similar cases because they may be dealing with very different disputants.75

Nonconfrontational Dispute Resolution A qadi is a guide in the parties’ efforts at finding common ground.76 During the court proceedings, reconciliation is given utmost priority to eradicate any source of disagreement between the Muslim brethren. According to the Islamic faith, formal adjudication may “breed hatred between parties while reconciliation brings them together.”77 The main emphasis is placed on oral evidence—​a tradition established in the beginning of the ninth century when the institution of a witness grew into established practice.78 Face-​to-​face interaction between the qadi and the parties is the bedrock of Islamic dispute resolution, an interaction which, as I noted earlier in the chapter, is almost entirely absent in the proceedings at the ICJ. As Hallaq writes, “In the Islamic system of justice no noticeable gulf existed between the court as a legal institution and the consumers of law, however economically impoverished or educationally disadvantaged the latter might be.”79 In this context, Glenn adds that in the search for truth and the revealed law, parties “are rightly seen as partners of the qadi in the law-​ finding process.”80 Accordingly, the role of lawyers is much smaller than in the

75 Achieving justice in the context of a particular case may require application of different procedures and techniques from those required in another case. 76 Historically, qadis had no specific place or a building where dispute resolution would take place. Thus there was no equivalent of a court building. Instead, qadis heard disputes in various places such as mosques, a qadi’s home, and in public places such as streets or marketplaces (Hallaq 2005, 59). 77 Iqbal 2001, 1040. 78 In fact, oral testimony became the cornerstone of Islamic law’s evidentiary system, superseding in importance written documents, which if to be used in the court often had to be validated by witness attestation (see Hallaq 2005, 61). The proceedings in a sharia court are to follow a hadith that speaks of importance of oral oaths: “Producing evidence is the obligation of the one who asserts, and the oath is the obligation of the one who denies.” According to Othman (2007, 65), this tradition stipulates that a person must prove an assertion by providing appropriate evidence—​preferably two Muslim men of good character. In contrast, to refute an assertion, “one must swear an exculpatory oath.” Rosen (2000, 73) writes that in an Islamic court, “all evidence is regarded as essentially oral in nature.” 79 Hallaq 2009a, 63. 80 Glenn 2014, 187. Bowen (2003, 210) writes that in the context of divorce cases in Indonesia, “judges do at least as much social and religious counseling as they do fact-​finding and statute-​applying.”

 

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West.81 Of course, with the influence of Western-​style litigation techniques, lawyers have become more popular in the Islamic milieu and many courts are gradually moving toward reliance on written documents and legal representation. However, attorneys are mostly used in secular courts, while in sharia courts the disputants often speak for themselves. Even in cases when lawyers are used, the qadi frequently communicates directly with the disputants, calling each party up to the judicial bench for occasional clarification or face-​to-​face interaction.82 While European and American litigation models are inherently based on a winner/​loser dichotomy as well as legalistic and rational argumentation, the Islamic concept of settlement relies on myriad extralegal values such as communal benefits, societal needs, and religion. In the West, these notions lie outside the realm of law and legality and do not fit neatly into the state’s conception of a legitimate and unbiased dispute resolution process. In a sense, the Islamic way of conflict management is more receptive to intangible outcomes, outcomes that go beyond individual rights, gains or losses, outcomes that affect the larger community.83 As Aida Othman explained to me, And if you assert a litigious culture in any way instead of going to the leader of the village and getting to sort out things for them, it just goes against the grain of the community. You will not be able to achieve this communal atmosphere: these people have weddings to organize, funerals to deal with together. Going to court cannot smooth out disagreements. You cannot have smooth operations through life when somebody goes and starts an action at the high court in the nearest town. It just does not work that way.84 Although a preference for face-​to-​face interactions at the local level is perhaps characteristic of all small communities, the avoidance of legal proceedings is much more deeply ingrained in Islam than it is in the West. Whereas the Western model of adjudication centers on determining the truth, applying the law, and allowing events to unfold accordingly, a qadi’s main goal is “to get people back into working relationships—​contentious as they may be—​rather than to solve 81 In Saudi Arabia, according to a report of the Commission on Human Rights (2003), Islamic judges consider lawyers and other interlocutors as obstruction to case settlement. At times, disputants are represented by a male family member (van Eijk 2010, 162). 82 Rosen (2000, 105) observes that in Morocco, even in cases where lawyers are present in the courtroom, it is almost impossible to restrain the disputants from contributing personal insights and arguments to the case, and “not infrequently the lawyer must effectively stand to the side while the judge and litigants go at it.” 83 See Abou El Fadl 2003a. 84 Author interview with Dr. Aida Othman, August 28 2015. See note 1.

 



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matters in a way that ignores future ties.”85 Thus, forbearance, resolution, and benevolence are at the forefront of conflict settlement.86 Accordingly, the concept of a trial as a method of finding the ultimate truth is partially absent in Islamic law. In the name of protecting the collective interests, justice may be “tainted and subverted by the imperfect nature of man.”87 An old Islamic maxim teaches al-​Sulh seyed al-​ahkam, mediation/​reconciliation is the superior rule.88 Sulh, a concept that undergirds the Islamic paradigm of dispute resolution, roughly translates to compromise of action, conciliation, or an amicable settlement.89 Informality was deeply engrained in the fabric of Arab tribal societies and certainly predates the rise of Islam. A ruler, a healer, or an influential nobleman often took on the role of intermediary in intratribal disagreements.90 From a practical standpoint, amicable settlement was necessary for tribe survival in the harsh realities of nomadic desert life: earnest settlement prevented disputes from turning into warfare. Imposition of a binding judgment could exacerbate the contention.91 The Quran embraces this philosophy of reconciliation: “The recompense for an injury is an injury equal thereto (in degree): but if a person forgives and makes reconciliation, his reward is due from God: For God loveth not those who do wrong.”92 In another place, the Quran states that “There is no blame on them if they arrange an amicable settlement between themselves, and such settlement is best.”93 Sulh was the Prophet Muhammad’s favored method of dispute resolution. In fact, Muhammad personally mediated conflicts between his close followers and between clan members. 94 Over time, Islamic jurists introduced formal classifications of the various ways one can settle a dispute. Eventually, three separate categories emerged: sulh, an informal compromise between the parties, usually with the help of an intermediary; tahkim, arbitration by a third party knowledgeable in Islamic law; and qada, adjudication by qadi based on sharia.95 Unlike sulh, an arbitrator and a qadi 85 Rosen 2000, 41. 86 See Abou El Fadl 2003a. 87 Othman 2007, 69. 88 Author interview with Judge Awn Shawkat Al-​Khasawneh, February 18, 2015. 89 Othman 2007. 90 In the process of sulh, the parties are treated as “enmeshed in webs of relationships with family and community” (Philpott 2012, 161). The Western-​based approaches treat each disputant as an independent party. 91 Black, Esmaeili, and Hosen 2013, 156. 92 Quran, Sura 42, verse 40. See Bassiouni 2014. 93 Quran, Sura 4, verse 128. 94 In sunna, there are several hadiths recording Muhammad’s partiality toward mediation, conciliation, and true compromise. 95 See Othman 2007, 68. There is a disagreement in the scholarship with regard to the meaning and substance of each of these three categories. Also, schools of Islamic jurisprudence disagree about

 

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have the power to impose their decision upon the disputants and play a more institutionalized role in the proceedings. Both tahkim and qada are based on the parties subjecting themselves to a verdict of an intermediary who is knowledgeable in Islamic law. Yet, sulh can be incorporated within the framework of adjudication. A judge, who is to embrace his role as a mediator and a conciliator, can encourage the parties to mediate before the commencement of the trial. A panoramic look at ILS’ domestic legal systems reveals that sulh and informal dispute resolution have been directly embraced in the modern Islamic milieu. Of course, recourse to these out-​of-​court procedures—​which for the most part take the form of traditional conciliation at the communal or tribal level—​varies across time, communities, and the specific circumstances of each case. These alternative venues acquire importance when official state institutions lack either the ability or the willingness to deal with a set of disputes. By way of illustration, the collapse of state institutions during the protracted Lebanese civil war (1975–​1990) generated a void that was gradually patched up by informal dispute resolution procedures and religious courts.96 However, a breakdown of state institutions is not the only nor the main reason for the existence of informal dispute resolution. Quite the opposite: even in ILS with well-​functioning and strong court systems, customary ways of resolving interpersonal contentions are an important part of the legal landscape. In fact, in many ILS the informal methods constitute the preferred way of settlement. This is especially the case in the rural areas. In a crucial way, informality embraces “the moral fellowship of the rural community” firmly engrained in the spirit of Islamic law.97 Additionally, resolving quarrels outside the courtroom is cheaper, speedier, and quite effective in furthering Islamic law’s emphasis on the reinstatement of communal harmony. Illuminating examples of informal dispute resolution include jirga and shura in Afghanistan, both of which embrace restorative informal justice and societal harmony. Shura is a local gathering or a local court broadly understood, and jirga is an ad hoc council made up of local elders and important male figures who make consultative and often final decisions about a wide range of issues.98 Similarly, in rural areas of Sudan, people frequently resort to chiefs and the elders of their communities for informal dispute resolutions. Local customs and norms are the

the extent of sulh’s role in a courtroom. Importantly, as Othman (2007, 70) writes, “sulh” has two distinct meanings: it is a method of dispute settlement (the other two categories being tahkim and qada), but it can also mean the palpable outcome of the dispute resolution process—​an agreement that stipulates the terms of the settlement.

Cohen 2001, 38. Cohen 2001, 39. 98 Yassari and Saboory 2010. 96 97

 



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basis of settlement decisions.99 Informal dispute resolution on the local level, with its focus on prevention and communal harmony, predominates within the legal landscape of Brunei. As Black suggests, “with mediation, the people of Brunei have long established culturally preferred means of settling disputes and for reducing conflict that utilize informal localized forms of negotiation and mediation. These continue to be preferred over the exported western versions of the ADR movement.”100 Likewise in Oman, reconciliation committees help the people settle their disagreements, a process that is strongly anchored in the Ibadi ideology of forgiveness, forbearance, and patience. In fact, these forums are open not only to Omani nationals or Muslims, but also to residents of all religions and all nationalities. Considered “a revival of the cultural heritage of Oman,” the reconciliation committees have greatly reduced the burden placed on Omani state courts.101 Most conflicts in Jordan’s nomadic and semi-​nomadic tribes are settled via a tribal mediation system that is based on consensus, conciliation, or, alternatively, arbitration. The process of resolution, based on restoring intertribal relationships, is administered under the guidance of respected elders and notables of the community.102 In several ILS, mediation between disputants is encouraged officially by the courts or constitutes a prerequisite for judicial proceedings.103 For instance, the Malaysian 2001 Shariah Civil Procedure obliges the disputants to first attempt resolution under the guidance of professionally trained mediators or sulh officers who conduct the sulh sessions in accordance with Quranic principles.104 Mediation, specifically sulh, is repeatedly applied in Malaysia in the context of banking and labor disputes, as well as disputes over civil and family matters. Lebanon and Tunisia, despite their less comprehensive official commitment to Islamic law, still incorporate sharia and informal third-​party procedures in familial and other types of civil disputes. Finally, in Morocco, the traditional justice system and community-​sponsored conciliation in rural areas contribute greatly to dispute resolution. The uniqueness of Islamic attitudes toward conflict

99 Because of their swiftness, these resolution forums are employed in about 80 percent of cases (Köndgen 2010). 100 Black 2001, 306. 101 Mohammad Fahmi Rajab, “Reconciliation Panels in Oman Help Cut Courts’ Burden,” Times of Oman, July 10, 2015, http://​timesofoman.com/​article/​63488/​Oman/​Government/​ Omans-​reconciliation-​committees-​resolved-​cases-​lessesn-​courts-​burden. 102 See Furr and Al-​Serhan 2008. 103 In Morocco, mediation in family courts was institutionalized in 2007. The Jordanian Mediation Law introduced in 2006 provides for mediation as an alternative to litigation. 104 See Othman 2007. Also, the Ottoman Civil Code, Majalla, stipulated that “sulh is a contract removing a dispute by consent. And it becomes a concluded contract by offer and acceptance” (Article 1531).

 

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resolution can be attributed to the Quranic tenets as well as the pre-​Islamic culture that is stamped on the Quran.

Collective Embeddedness of the Third Party As a general rule, “the preferred ‘third party’ in the Arab-​Islamic approach is an unbiased insider with ongoing connections to the major disputants as well as a strong sense of the common good and standing within the community.”105 In the Western legal culture, an intermediary is to be unbiased, neutral, and highly trained. Additionally, the secular philosophy of litigation teaches that appropriate procedures employed during the resolution process legitimize the settlement. Islam uses a different metric to determine who is an appropriate intermediary and what kind of process is considered legitimate. According to Abu-​Nimer, “the legitimacy of conflict resolution processes and third-​party intervention stems from a negotiator’s religious, social, and cultural rank. Age, gender, class, or tribal affiliation are often more important than legal training or other formal education credentials.”106 It is the position of the intermediary within the community that legitimizes the process of settlement. Historically, it was the strength of a qadi’s ties to the locals and not the ruler’s support that gave the judge authority. Such a strong bond with the community explains why some judges retained a portion of their nonjudicial functions, including taking care of the property of absentees, leading public prayers, and supervising charitable trusts.107 The qadi’s relationship to the disputants is thus fundamentally grounded in a helper/​help-​seekers formula, which sharply contrasts with Western notions of centrally administered justice.108 As Hallaq notes, “The qadi himself was typically a creature of the culture in which he adjudicated disputes.”109 Of course, with time the position of the office of a qadi has evolved to become more official and limited to local dispute resolution.

105 Irani and Funk 1998, 63. According to Qamar-​ul Huda (2010, xix), “Part of what makes Islamic peacebuilding efforts unique are the processes by which their principles are applied. For example, Islamic efforts to create peace use a religious judge (qadi) to rely upon established guidelines in Islamic law (shari’ah). The process of mediation, arbitration, and reconciliation (sulh) consists of the conflicting parties agreeing on a process of resolving a dispute with a third-​party mediator, who will ensure that all parties are satisfied by the outcomes.” 106 Abu-​Nimer 2010,  74–​75 107 Hallaq 2005, 97–​99. 108 Sonbol 2003, 241. 109 Hallaq 2009a, 61. Before the eighth century, in addition to presiding over disputes, qadis had other jobs—​oftentimes manual—​that solidified their embeddedness in the community.

 



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Islamic Principles in the Resolution Process Hallaq writes that “the Muslim court thus was not only a legal forum but also an anthropological, social, and moral site.”110 Traditional Islamic dispute resolution brings into conversation not only Quranic principles, but also historical examples and occurrences from Muhammad’s life.111 According to Imam Ibrahim Amin, “In Islam, even in a purely legal environment, moral consciousness is tremendously important.”112 Only decisions given within the limits of God’s will, as expressed in sharia, are considered beneficial to the parties. A judgment that is contrary to Islamic law “cannot change the status of the parties in the eyes of God.”113 In an important way, Islamic courts are responsible for making sure that believers follow practices enshrined in the Quran. Qadi are guardians who watch over the Islamic community so that as a whole it remains “a moral body in the eyes of God.”114 The obligation to settle disputes within parameters of the sacred law stems from teachings of the Quran: “We have revealed unto you the Book with the Truth, confirming whatever Scripture was before it. . . . So judge between them by what God had revealed, and do not follow their desires away from the Truth  .  .  . for We have made for each of you a law and a normative way to follow. If God had willed, He would have made all of you one community.”115 This passage contrasts obligations that bind Christians, Jews, and Muslims, conveying the message that it was God’s will to create three distinct communities with three distinct sets of rules.116 Each community is to be governed by its own laws. It is God’s revealed will for Muslims to judge by what was revealed to them, because there is no other being—​other than God—​that could render a better judgment in any dispute.117

ILS and International Peaceful Resolution Methods One of my interviewees, Omar Rifai, explained to me, “Through the court you are talking to an enemy. When you are talking directly, it could be a brother or a 110 Hallaq 2013, 58. 111 Abu-​Nimer 2010, 74. 112 Author interview with Imam Ibrahim Amin, Oxford Centre for Islamic Studies, Oxford, UK, May 16, 2016. 113 Glenn 2014, 188. 114 Rosen 2000, 35. 115 Quran, Sura 5, verse 48. 116 This passage can, arguably, be interpreted to include other religions as well. 117 See, for example, Quran, Sura 2, verse 213, or Sura 24, verse 48.

 

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cousin, but when you resort to the court, it means you have given up on finding a peaceful solution or a solution between friends or brothers.”118 This statement describes relations between individuals as well as collectivities—​ILS. Even though Islamic law and international law put a premium on peaceful resolution of disputes, each of these legal systems has a different conception of this process. On the individual level, people who carry on the Islamic legal tradition simply embrace unique values promoted by Islam. In the words of Bowen, “People in other societies, or in new versions of Euro-​American societies, might weigh values in different ways, for example, making autonomy and the capacity to form an idea of the good secondary to a proper understanding of God, or to the overall welfare of the community.”119 These values, as I explain in what follows, translate into ILS’ preferences. Islamic norms of dispute resolution match international non-​binding third-​party methods: mediation and conciliation. The resemblance manifests itself in logic, procedure, and goals of settlement. In a fundamental way, mediation and conciliation entail ongoing dialogue between the disputants and the intermediary. The parties themselves have a substantial freedom of action within the general framework of these mechanisms. For instance, conciliation under international law has been defined as “intervention in the settlement of an international dispute by a body having no political authority of its own, but enjoying the confidence of the parties to the dispute, with the task of investigating every aspect of the dispute and of proposing a solution which is not binding on the parties.”120 Disputants enter into this process prepared to adjust their interests to find a mutually acceptable solution. The same holds for mediation. As Goertz et al. argue, “Mediators have the freedom to offer suggestions, construct solutions, or change the payoffs (through use of selective incentives or punishments) for alternative outcomes.”121 In contrast to international legal mechanisms, arbitration and adjudication, the settlement proposal offered by a mediator or a conciliator does not take the disputants by surprise, since it flows naturally from the entire resolution process.122 Importantly, both parties can be satisfied with the resolution process because there is no clear winner and no clear loser. Such a philosophy of settlement appeals to states of the Islamic milieu. According to Alhinai, the principle of “no-​w inner-​no-​loser” is embedded deeply in Arabic or, speaking 118 Author interview with Professor Omar Rifai, Hashemite Kingdom of Jordan ambassador to Israel, Italy, Egypt, secretary-​general of the Ministry of Foreign Affairs, permanent representative to the Arab League, conducted in Amman, Jordan, February 19, 2015. 119 Bowen 2003, 263. For an excellent discussion of Islamic approaches to conflict resolution, see Abou El Fadl 2003a. 120 Cot 1972, 9. 121 Goertz, Diehl, and Balas 2016, 172. 122 Merrills 2017, 86.

 



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more broadly, Islamic culture.123 At times, especially in high-​stakes disputes, the non-​binding third-​party methods can prove useful in offering step-​by-​ step solutions, solutions that address different stages of an ongoing contention. Such flexibility is often unattainable in legal proceedings. It is also in the context of mediation and conciliation that personal qualities and reputation of an intermediary matter most.124 While an international court or an arbitral panel is bound by the confines of law, mediation and conciliation go beyond the realm of the letter of the law.125 Here, an equitable and workable solution is sought. As the Jan Mayen conciliation commission declared, “the Conciliation Commission shall not act as a court of law. Its function is to make recommendations to the two governments which in the unanimous opinion of the Commission will lead to acceptable and equitable solution of the problems involved.”126 If a dispute centers on a question of facts, employing international law may be unnecessary. In a manner reminiscent of sulh, the personal traits, authority, and prestige of an intermediary in all non-​binding third-​party methods legitimize the process and terms of settlement. For example, Algeria, a neutral state, was an ideal mediator in the dispute between Iran and Iraq over their border precisely because of the common Islamic heritage of all parties involved.127 Algeria was perceived as the unbiased insider with a considerable stake in the welfare of the Muslim umma. In a remarkable way, there exists an important point of connection between international mediation/​conciliation and the court proceedings directed by a qadi in the domestic context. In both, much emphasis is placed on the intermediary’s standing in the community. Glenn argues that in the qadi system, “there is also something reminiscent of modern case management, pre-​trial conferences, and even obligatory mediation.”128 Besides, mediation and conciliation rest on the assumption that each case is unique and may require different terms of resolution—​a premise of qadi justice.

123 Alhinai 2004, 77. 124 My argument that flexibility of the non-​binding third-​party methods appeals to ILS relates well to arguments advanced by Pelc (2016), who analyzes the role of flexibility in international law. Although Pelc’s arguments are advanced mainly in the context of international trade regime, his observation that flexibility may actually allow for stronger commitments seems to accurately describe the relation between the Islamic milieu and international venues for dispute resolution. 125 This is true with the caveat that international courts and arbitration tribunals may rule according to principles of equity if so desired by the parties. Such situations, however, are very rare. 126 Conciliation Commission on the Continental Shelf area between Iceland and Jan Mayen:  Report and recommendations to the governments of Iceland and Norway, decision of June 1981. 127 Merrills 2017, 28. 128 Glenn 2014, 188.

 

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Characteristics of international non-​binding third-​party methods, especially their informal character and the disputants’ ability to choose the third party, make them attractive to ILS. These methods, reminiscent of Islamic sulh, promote reconciliation through flexible out-​of-​court procedures and enable ILS to realize their preferences regarding the nature of social interaction. The disputants may formulate a just solution in terms that lie outside the realm of law, such as reparations or the restoration of friendly interstate relationships.129 Additionally, the Islamic community may be engaged in the resolution process via the appointment of an Islamic mediator or a conciliator. In such a case, principles of Islamic law may be employed as the basis for settlement. Whereas adjudication constitutes an intrinsic part of the Western culture reflected in international law, it takes a back seat in Islam.130 The legal mechanisms adhere closely to international law, are most formal, rely on a sharp distinction between law and religion, and are unlikely to consider Islamic law as a basis for settlement. In ­chapter 6, I demonstrate, in the context of the ICJ, that when international legalized venues refer to Islamic law, they usually face intense criticism from many international legal scholars.131 The ICJ rarely mentions or in any way considers Islamic law as a meaningful source of ILS’ international obligations. More generally, there is definite pushback against attempts to give sources other than international law or Western legal traditions any authority over interstate interactions for fear of muddying the secular/​religious divide. Thus, of all peaceful resolution venues, negotiations and non-​binding third-​party methods provide those in which Islamic principles could be incorporated. These mechanisms allow ILS to mitigate, if not altogether avoid, the sometimes unwanted influence of Westernized international law. In practice, ILS use the international non-​binding third-​party methods quite often. Mediation and conciliation frequently seem to be the forums of choice not only in the context of disputes within the Islamic milieu, but also in ILS’ disputes with non-​ILS. A prime example of the latter is the diplomatic hostages dispute between the United States and Iran. In 1979, the US embassy building in Tehran was attacked by several hundred armed revolutionaries, supporters of Ayatollah Khomeini. The aggressors declared that their hostages had committed espionage. Shortly thereafter, the Revolutionary Council and Khomeini embraced the anti-​US rhetoric. The United States adopted diplomatic and economic sanctions against Iran, and the international community issued many 129 Philpott 2012. 130 Interestingly, Sir Robert Jennings, renowned scholar and judge of the ICJ, believed that “going to court in international law should be considered, as in municipal law, as a banal routine act” (Abi-​ Saab 2013, 328). 131 For an excellent discussion, see Khaliq 2013.

 



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appeals for the release of the hostages. Yet, the hostages were not released.132 On November 29, 1979, the United States filed the case in the ICJ. Iran refused to take part in the litigation, declaring that the dispute dealt with an issue “within the national sovereignty of Iran,” and that international law constitutes a tool of the powerful West.133 The ICJ judgment issued in May 1980 declared that Iran was in violation of international law and must release the hostages, restore the premises, and make reparations to the United States. However, Iran did not release the hostages until January 1981, and the release was not in any way driven by the ICJ’s ruling on the matter, but by the Algiers Accords, a 1981 amicable resolution steered by Algeria.134 Algeria provided good offices and proved to be an effective mediator: it maintained strong trade connections with the United States, and as one of the ILS, it was able to keep Iran’s trust. Though the Algerian negotiators were Sunni and Iran’s were Shia, the fact that they were Muslim was a critical factor in Iran’s move to settle.135 Warren Christopher, who negotiated on behalf of the United States, noted that “the Algerians served an indispensable function in interpreting two widely disparate cultures and reasoning processes to each other.”136

Application of Islamic Law to Collectivities: The Individual–​Collective Leap One of my interviewees, when asked whether rules of the Quran that pertain to individuals apply also to states, answered, “Yes, because that’s based on the Quran.” 137 Indeed, while theorizing about ILS’ preferences toward international peaceful resolution venues, an important caveat warrants further discussion. How does the Islamic philosophy of sulh, brotherly settlement and reconciliation, “scale up” to the state level? Specifically, is there a theoretical link between individual-​level creeds of sharia and state-​level rules of behavior? In addressing this issue of how to conceptualize sharia’s application to ILS, I focus on three interrelated points:  sharia’s applicability to collectivities; the citizens’ expectations in ILS about sharia’s role in public life; and the nature of Islam as an evolving legal tradition.



Schulte 2004, 166. Iran’s letter to the ICJ, dated March 16, 1980. 134 Schulte 2004, 171. 135 Greenberg 1984, 278. See also Powell 2016. 136 Farber 2005, 181. 137 Author interview with Professor Omar Rifai, Amman, Jordan, February 19, 2015. 132 133

 

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Sharia’s Applicability to Collectivities In sharia, many individual-​level rules, via the process of extrapolation, apply to collectivities such as tribes, nations, and states.138 Bassiouni explains this point well: “Islam regulates on a holistic basis the interpersonal and collective conduct of humans on earth, as well as relations between individuals and God. Thus, it applies to life in this world and in the hereafter. Justice is referred to in the Qur’ān more than twenty times, and is the cornerstone of this holistic approach. It includes: interpersonal, intersocial, and interstate relations, relations between the Muslim ummah and non-​Muslim states, and internal governance of the ummah.”139 Islamic international law, siyar, and domestic law draw their authority from the same legal sources, the Quran and sunna, and there is no separation between these two legal domains.140 As Khadduri notes about siyar, “an Islamic law of nations does not exist as a separate system in the sense that modern municipal (national) law and international law, based on different sources and maintained by different sanctions, are distinct from one another.”141 Though Quranic prescriptions may speak of individuals, they teach a specific logic through which sharia may apply to collectivities. By their very nature, creeds of Islamic law govern practices that unfold amidst and are entwined in all spheres of human activity, including institutionalized governance, cooperation, and conflict.142 Theoretically as well as practically, actions of collectivities cannot be singled out from other aspects of human activity. Sharia is a comprehensive code of human existence, and as Hashmi writes, “The issues of war and peace thus fall within the purview of divine legislation for humanity.”143 Abou El Fadl explains that “the concept of a Shari’ah-​based society is further strengthened by a Qur’anic discourse that indicates that the mandate to live 138 One of the earliest Islamic treaties, the Constitution of Medina (AD 622), addressed intertribal collective peaceful resolution. This document, which spelled out relations between Muslims and other groups inhabiting the Medina area, established the Prophet Muhammad as the authority in all disputes. However, it is important to recognize that until the later nineteenth century, Islamic discourse has not focused on the concept of nation-​state, but instead on non-​state actors, such as the community, or the various modes of political and religious governance (see Scott 2010). 139 Bassiouni 2014, 22–​23. 140 See Bsoul 2008; Ford 1995; and Weeramantry 1988. Shaybani’s Introduction to the Law of Nations draws extensively on the Quran and the sunna, cites Traditions of the Prophet, and appeals to general principles and doctrines of Islam. In an important way, siyar was always an extension of Islamic jurisprudence as a whole. 141 Khadduri 1966, 6. See also Maududi 1975. 142 See, for instance, Reese, Ruby and Pape (2017, 440) who demonstrate that the Islamic calendar to some extent shapes and constrains other mechanisms driving violence in the Islamic milieu. See also Hassner (2007) who argues that traditional norms of Islamic law continue to shape temporary Muslim understanding of what is just and unjust in the context of international conflict. 143 Hashmi 2002a, 196.

 



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according to the dictates of the Divine law is not only individual, but also collective. This discourse often occurs in the context of addressing the threat of fitnah (severe tribulations) that might befall an unjust society. The Qur’an emphasizes that a society that does not abide by the commands of God, becomes ungrateful toward God, or that is overcome by large-​scale injustice, runs the risk of Divine collective punishment.”144 One of my interviewees addressed this issue directly, arguing that rules regarding peace, justice, and the resolution of disputes “should dictate relationships between human beings in general, whether individually or collectively.”145 Moreover, Islamic international law is specifically addressed to Muslim collectivities and reveals Islam’s struggles to construct a justly ordered community of states. In the words of Khadduri, siyar since its beginning “was binding on territorial groups as well as individuals.”146 This reality is directly reflected in the very meaning of the term “siyar,” plural of “sira”: “the conduct of the state in its relationship with other communities.”147 From a moral standpoint, the application of Quranic injunctions against wrongdoing of all kinds is especially important in the context of collectivities. As Hashmi argues, “When people form social units, they become all the more prone to disobey God’s laws through the obstinate persistence in wrongdoing caused by custom and social pressures.”148 Bassiouni echoes this point:  “The protection of human dignity and the pursuit of justice are entrusted to each and every Muslim, because every Muslim is deemed to be God’s trustee on earth. It is also entrusted to the collectivity, whether in the form of a Muslim state, the ummah, or a community of Muslims living in a non-​Muslim state.”149 Speaking directly about inter-​polity dispute resolution, the Quran states that “if two groups of believers come to fight one another, promote peace between them.”150 There is another, deeper aspect to this broad appeal to peace, namely, the superiority of informal dispute resolution not only in the domestic sphere, but also in the international arena. For instance, in his treatment of Islamic international law, Shaybani talks about the usefulness of

144 Abou El Fadl 2003b, 217. 145 Author interview with Mohammed Al Qasimi, College of Law, United Arab Emirates University, Al-​Ain, November 2013. 146 Khadduri 1966, 6. 147 Khadduri 1966, 39. Importantly, the Prophet Muhammad in the process of making decisions relied on the revelations he received from God including those affecting the day-​to-​day existence of Muslims, as individuals and as a community. 148 Hashmi 2002a, 197. 149 Bassiouni 2014, 101. 150 Quran, Sura 49, verse 9. For the use of Quranic verses in collective dispute resolution, see Abu-​Nimer  2003.

 

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sulh in the context of domestic disputes over ownership and marital disputes, and in the context of war.151 Granted, siyar as the appropriate conduct of Muslim rulers in interstate dealings has come under criticism as being out of date and failing to address contemporary issues. Thus, some may question whether this branch of Islamic law is the guidebook for ILS’ global dealings. While these critiques address an important issue and have merit, several caveats should be brought up. As I explained earlier, the logic and spirit of Islamic law are to guide all aspects of behavior. Thus, while siyar’s scope might indeed be narrow, the reach of the Quran and sunna does not stop at ILS’ borders. Quite the opposite: there are many ways in which creeds of sharia engage state behavior. Abou El Fadl writes, “The Qur’an was revealed over a span of about twenty-​one years, mostly in response to specific historical events. It is considered to be the fundamental source of Islamic law because Muslims believe it to be the revealed, literal word of God. Thus it carries considerable normative weight in all areas of life, including the peaceful resolution of disputes.”152 Sachedina makes a conceptual link between an individual’s beliefs and collective behavior:  “When law and faith merge in an individual’s life, they create a sense of security and integrity about the great responsibility of pursuing justice for its own sake. And when this sense of security and integrity is projected to the collective life of the community, it conduces to social harmony. Peace, then, is belief translated into action.”153 In practice, there is a multiplicity of ways and communication paths through which individual-​level arguments make their way up to the state level and supranational level. For instance, several regional organizations formed by ILS refer to Islam as a significant factor, extending the reach of sharia beyond the domestic realm. These organizations reflect “the complex character of transnational Muslim politics, which has created a rather different normative global framework with Islamic points of reference.”154 One of the objectives of the Charter of the Organisation of Islamic Conference (OIC) is to “disseminate, promote and preserve the Islamic teachings and values based on moderation and tolerance, promote Islamic culture and safeguard Islamic heritage.”155 Similarly, the Arab Charter on Human Rights aspires to further “the eternal principles of fraternity, equality and tolerance among human beings consecrated by the noble Islamic

151 Othman 2007, 71. 152 Abou El Fadl 2003a, 179. 153 Sachedina 2001, 43–​44. 154 Bowering (ed.) 2013, 258. 155 Charter of the OIC, Article 1.  914, UNTS, 111. The Organisation of Islamic Conference changed its name to the Organisation of Islamic Cooperation in 2011.

 



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religion and the other divinely-​revealed religions.156 The OIC Cairo Declaration on Human Rights in Islam contains perhaps the most extensive Islam-​related content, highlighting the “civilizing and historical role of the Islamic Ummah.” The declaration draws a direct link between fundamental rights, universal freedoms, Islam, the Revealed Books of God, and the teachings of the Prophet Muhammad.157 Notably, Islamic law repeatedly appears in ILS’ arguments advanced at international conflict management venues. For instance, in the context of territorial disputes, ILS have repeatedly used Quranic rules of land ownership to establish their sovereignty over territory. The ICJ Western Sahara Advisory Opinion and the Libya-​Chad dispute constitute the most vivid examples.158 In these cases, the disputants resorted not only to collectivity-​level Quranic verses referring to tribes, but also individual-​level rules regarding land possession.159 I address this point in much greater detail in c­ hapter 6, which takes a thorough look at the complexity of the Islamic milieu’s dealings with the ICJ.

ILS Citizens’ Expectations about Sharia’s Role in Public Life Although Islamic ideals are practiced differently by different actors in ILS, the reality is that ILS’ Muslim citizens expect religion to play a role in all aspects of life, including domestic and international politics.160 As Hallaq writes, “To say that the overwhelming majority of modern Muslims wish for the Sharī’a to return in one form or another is to state what anyone with even a cursory knowledge of

156 The Arab Charter of Human Rights was adopted by the League of Arab States on September 15, 1994, and entered into force on March 15, 2008. 157 Cairo Declaration on Human Rights in Islam, August 5, 1990, UN GAOR, World Conference on Human Rights, 4th Session, Agenda Item 5, UN Doc. A/​CONF.157/​PC/​62/​Add.18 (1993) [English translation]. 158 Western Sahara, ICJ advisory opinion of October 16 (1975), ICJ 12; Territorial Dispute (Libyan Arab Jamahiriya/​Chad), ICJ Judgment of February 3, 1994, ICJ Rep. 1994, 6. 159 Cravens 1998. 160 Emon 2012b. Yet, I agree with Hamoudi (2008) that it is important to take into consideration the evolution of Islamic law from a classical doctrine to modern times. As Hamoudi argues, Islamic law as practiced in the modern era is “largely the product of mediation among competing influences in Muslim society” (p. 469). The first force of influence is the “resistance against the dominant global economic and political order to create a separate Muslim polity with its own ethical and cultural norms” (p. 469). The second force of influence is “the need to engage the broader world, commercially and politically, in order to develop power and influence” (p. 469). It is important to note that at times the influence of classical Islamic thought on contemporary Islamic societies is indirect. As Hassner (2007, 134) writes, “common understandings of just and unjust behavior in war implicitly rest on chains of arguments, practices and institutions that can be traced to early Islamic scholars.” See also Reese, Ruby, and Pape (2017); and Toft and Zhukov (2015) for excellent analyses of the link between Islamic calendar/​holidays and violence.

 

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world affairs would readily acknowledge.”161 Similarly, Arabi argues that sharia reaches deeply into the daily behavior of an average person in Muslim societies, and provides a real framework in modern countries that incorporate Islamic law into their official governance.162 These views are echoed by Otto, who writes that “for most Muslims, Islam indeed represents a major source of public morale, virtue, rightness and self-​respect.”163 Do ILS’ policymakers simply “check at the door” their personal commitment to Islam as they act on their plenipotentiary powers? After all, who is to say to a Muslim, whether a policymaker or an average person, that her/​his religion must be considered inferior to, for instance, territorial affiliation? The same can be said of a broader commitment to the Islamic legal, cultural, and social ways of resolving disputes. In the context of war, Hassner argues that “the traditions relating to the Prophet and Islamic just war theory underlie modern Muslim conceptions of what is just and unjust in war.” 164 Further illustrating the importance of Islamic values, the wave of recent uprisings and revolutions in several ILS has been subsequently followed by an upsurge of constitutional acts, constitutional amendments, and changes in law. These new laws have increasingly integrated Islam into governance systems, demonstrating that these societies did not want to embrace political systems that would sideline Muslim faith.165 Arguably, the “secularism versus Islamism” issue has not always been the sole focus of the political debate in Islamic societies since the 1980s. Rather, the underlying discourse behind recent political movements in many ILS has centered on the question of what form of Islamic constitutionalism should be put in place to fulfill the vision of a “proper Islamic state” and who has the power to interpret what Islamic law actually is.166 But even before these recent events, majorities of ILS’ citizens, representing all societal segments, repeatedly declared that sharia should be a source of law in their countries, and voted for sharia-​oriented political parties.167 161 Hallaq 2013, x. 162 Arabi 2001. 163 Otto 2007, 139. 164 Hassner 2007, 133. 165 Ahmed and Ginsburg 2014; Lombardi 2013. 166 See Lombardi 2013. Interestingly, the popular perception in the West is that the issue of secular versus religious-​based governance constitutes the crux of the Arab Spring. For example, an article in The Economist, “The Secularists Have It” (2014), describes the outcome of Tunisia’s elections in its catchy title. Lombardi (2006, 7) makes the interesting point that “different factions have called on states to apply different theories. The result is a situation in which there is a broad desire for Islamization in the abstract, but violent disagreement about what form Islamization should take—​ disagreement that is rooted in very different ideas about how to interpret the sharī‛a.” 167 In fact, as Feldman (2008, 6) states “the ideal of the shari‘a invokes the core idea of law in terms that resonate deeply with the Islamic past.” According to Shakman Hurd (2008, 119), “Political Islam

 



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Practically speaking, Islamic law constitutes a real consideration, one with far-​ reaching implications, for ILS policymakers as they make their decisions domestically as well as at the international level.168 This is the case even if we take into consideration that some political leaders may lack an in-​depth understanding of Islam. They may also use Islamic rhetoric strategically or in an insincere way.169 But Islam’s religious teachings, however interpreted, have an impact on the preferences of many Muslims even if their countries’ leaders are not officially bound to share the same beliefs.170 Religious convictions of the people “are not suspended outside the mosque.”171 Thus, the expectation that the Islamic legal tradition transfers into the political sphere is simply supported by the rational, straightforward assumption of the majority of Muslim citizens.172 Actually, the core idea of secular governance is oft presumed objectionable to many Muslims,

is a modern language of politics that challenges, sometimes works outside of, and (occasionally) overturns fundamental assumptions about religion and politics that are embedded in the forms of Western secularism that emerged out of Latin Christendom.” 168 See Reese, Ruby, and Pape (2017) who argue that the Islamic calendar alters and constrains factors that drive political violence in Islamic societies (p. 440). See also Hassner 2007. 169 For a discussion of this issue, see Bassiouni 2014; and Platteau 2017. 170 Salmi, Adib Majul, and Tanham 1998, 79. 171 Bowering (ed.) 2013, 310. 172 For an in-​depth analysis of the differences between Muslims and non-​Muslims on the individual level, see Fish (2011). Interestingly, Fish demonstrates that Muslims are “only slightly more inclined than Christians to hold that it would be good ‘if more people with strong religious beliefs held public office’ ” (p. 61). Nevertheless, his empirical analyses show that Muslims are more likely to reject atheism in the belief that “people ‘who do not believe in God are unfit for public office’ ” (p. 61). In light of Fish’s findings, it is crucial, however, to consider several points that reconcile Fish’s arguments with my arguments, as put forth in this chapter. First, the content and deeply religious nature of Islam, in particular the all-​encompassing character of sharia, has important implications. A  Muslim and a non-​Muslim of equivalent “religiosity” may very well have divergent views with regard to the role of religion in state governance, both domestic and international. Second, Fish’s polling includes data from Muslims in non-​ILS, and at the same time excludes several key ILS with large Muslim populations, such as Afghanistan, Iran, Indonesia, and Saudi Arabia. A recent survey by the Pew Research Center (Spring 2015) reveals that in many ILS, a considerable proportion of the population believe that the teachings of the Quran should influence the laws of their country. For instance, 78 percent of Pakistanis believe that Pakistan’s laws should strictly follow the creeds of sharia, and 16 percent believe that the laws should “follow values and principles of Islam, but not strictly follow.” In Jordan, these statistics are 54 percent and 38 percent, respectively, and in Malaysia 52 percent and 17 percent. Interestingly, in Indonesia, an Islamic law state in which secular legal institutions exert a large influence, 22 percent of the population claims that laws in their country should strictly follow the Quranic teachings, and 52  percent embrace the less stringent view, arguing that the laws should follow Islam’s values and principles, but not necessarily strictly follow (see Pew Research Center [website], April 27, 2016, http://​www.pewglobal.org/​2016/​04/​27/​the-​divide-​over-​islam-​and-​national-​laws-​in-​the-​ muslim-​world/​).

 

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despite the ruling elites’ aspirations.173 In the words of Bowen, “many Muslims argue that their religious texts provide a God-​given set of political and social ideas, and do not see why they should be rejected in favor of liberal ideas. In many countries with large Muslim populations, these texts are one source of law.”174 As one of my interviewees aptly put it, “There would be those within the Muslim population who would want their country’s leader to implement monetary and fiscal policies that are also Islamic, if they understand the significance of Islamic values in those sectors. Similarly, they would also want their leaders to apply Islamic values for international relations.”175 Perhaps this analogy between the domestic and international realm should be further investigated; nevertheless it is reasonable to think that Islam and Islamic law continue to play a role “in the cultural, political and legal affairs of many Muslim states and societies.”176

Nature of Islam as an Evolving Legal Tradition The applicability of original sources of Islamic law to modern-​day human interactions, including interstate relations, stems from the inherent nature of Islam as an evolving, living, and dynamic legal tradition. As a result, as in the times of Islam’s early development, there is an ongoing dialogue between the Quranic laws and the realities of contemporary politics. In other words, the Islamic legal tradition embraces the need for conversation between new situations that call for legal regulation and God’s revelations. This process of molding the law necessitates reaching back to Islam’s original sources, sources that generate legitimacy in the eyes of Muslim populations. According to Kelsay, “Muslim arguments about war and politics in contemporary settings proceed just as they did in preceding centuries:  by asking ‘What guidance has God provided for the conduct of life?’ ‘What is the path that leads to refreshment’ corresponding to the example of the Prophet and the true nature of human beings?”177 This means that although the majority of ILS accept the reality that international law provides the “rules of the game,” and have, by necessity, taken on the political language of the nation-​state, the content of ILS’ nation-​states is deeply influenced by Islamic law. Thus, Islamic pre–​nation-​state norms are not deactivated in the context of ILS but instead provide an important backdrop for their actions. Tibi makes this point well: 173 For an interesting argument about Islamic law’s presence in the context of the modern nation-​ state, see Abou El Fadl 2012; and Quraishi-​Landes 2015. 174 Bowen 2003, 263. 175 Author interview with Dr. Aida Othman, August 28, 2015. See note 1. 176 Baderin 2008, xiv. 177 Kelsay 2007, 124.

 



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In short, Muslim states adhere to public international law but make no effort to accommodate the outmoded Islamic ethics of war and peace to the current international order. Thus, their conduct is based on outward conformity, not on a deeper “cultural accommodation”—​that is, a rethinking of Islamic tradition that would make it possible for them to accept a more universal law regulating war and peace in place of Islamic doctrine. Such a “cultural accommodation” of the religious doctrine to the changed social and historical realities would mean a reform of the role of the religious doctrine itself as the cultural underpinning of Islamic ethics of war and peace.178 Research shows that states—​to a significant degree—​build their domestic structure and institutions and design their agendas on the basis of models promoted at the global level. States mimic certain practices. International actors—​other states, international institutions, and so on—​have influence on ILS. All states, with their domestic constituencies, domestic institutions, structures, and policymakers, constitute complex actors with complex preferences. Thus, their preferences and behavior cannot be captured by oversimplified conceptions of states as merely rational, utility-​maximizing agents. Social influence—​emulation, social pressure to conform, and the like—​plays an important role. Sometimes this mimicry is sincere, sometimes it is not. This process leads to “substantial cross-​national isomorphism despite enormous differences in national resources, culture, and history.”179 ILS, like other states, to an important extent are subject to social mechanisms that promote compliance with widely accepted norms and expectations of behavior. They conform to a degree to West-​inspired international law. They mimic certain practices to maximize benefits they can draw from participating in global politics. They also, to an extent, “adopt the beliefs and behavioral patterns of the surrounding culture, without actively assessing either the merits of those beliefs and behaviors or the material costs and benefits of conforming to them.”180 The point is that international rules constitute the existing community standards, and ILS, by necessity, have to abide by these standards. These standards do not, however, completely override Islamic norms and values that are deeply embedded in ILS. International law’s power of persuasion has limits in the Islamic milieu. Because there are some key, deep-​seated differences between the Islamic legal tradition and Western-​based international law, acculturation will have a lesser impact on ILS than on non-​ILS. Simply put, ILS are

Tibi 2002, 188. Goodman and Jinks 2013, 57. 180 Goodman and Jinks 2013, 22. 178 179

 

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less motivated to indiscriminately accept the legitimacy of international law across the board. As a result, the degree of mimicry in the Islamic milieu has its limits. Tenets of the Islamic legal tradition can either confound or empower international law. In a way, certain moral concepts continue to have “moral and political salience” in the Muslim milieu in the context of interstate relations.181 Finally, it is useful to conceive the application of sharia to ILS’ actions not so much in terms of outright reliance on the Quran in policymaking, but in terms of a unique paradigm of Islamic conflict resolution. Ultimately, preferences of ILS are fundamentally shaped by the tenets of sharia, the Islamic culture, as well as the pre-​Islamic nomadic, tribal culture or tradition that is stamped on the Quran. It is the culturally and socially embedded canon of informal dispute settlement that influences how ILS conceptualize mechanisms offered by international law. What also holds true, however, is that Muslim societies are embedded in systems of local customary law that sustains these societies in legal frameworks unlike any other. For instance, the Islamic courtroom has always been largely a result of Islamic law and customary law coming together. As I described in ­chapter 3, custom is often considered to be as much of a legal language as the law sensu stricto. Hodgson argues that a “customary expectation of certain social and political forms and standards” constitutes an important extension of Islam.182 The point of muddled waters between law and non-​law is made explicit by Bowen: “The Islamic justification created by judges departs from the usual reasoning of fiqh; it weaves together general moral principles, implicit analogies, and reports of statements by the Prophet Muhammad. Social norms and religious reasoning generated a law-​like norm, which subsequently received legal justification. Here is a clear instance of the breadth of Islamic sociolegal reasoning.”183 It is as if Islamic law as implanted in state governance captures, albeit imperfectly, preexisting sentiments of society. In the words of Imam Ibrahim Amin, Law, understood in the secular sense, ought not to prescribe, revise, restrain, or contest the prevailing moral norms of society. They exist prior to the law, and law is supposed to protect them. If one wishes to obtain a change in a certain norm of society, one ought to begin from the

181 Fadel 2010, para. 4. 182 Hodgson 1974, 1:75. Hodgson also makes the interesting point that “almost any custom which he recognizes as valid is likely to be associated by an unlearnèd Muslim at least vaguely with his faith—​as happens in the case of other religions also” (p. 74). 183 Bowen 2003, 146. He makes this statement in the context of Indonesia, but it resonates well across the entire ILS category.

 



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grassroots. Only when the proposed norm becomes public will does law come in to enshrine it.184 Dupret argues a similar point in stating that “law as a social phenomenon cannot be reduced to the mere provisions of a legal code (law on the books).”185 The Islamic culture, Islamic values, and the Islamic legal tradition espouse informal ways of dispute settlement. ILS’ inclination toward non-​binding third-​party venues cannot be simply explained by rational, strategic calculations. It is much more a matter of deeply engrained preferences based on principle or even passion. As Othman explained to me: Yes, well Muslim countries I assume, let’s say they are led by Muslim leaders. Some are led by people with qualifications in Islam or Islamic law or the Qur’an. If they are such individuals then these leaders would definitely have grounding in the values in the Qur’an, in Islamic law which advocates mediation and reconciliation and peaceful means. These values have a significant place in the original sources of Islam and various treatises. They would find them familiar. It would be natural for them to resort to it. There might be, of course, other factors that would impact the judgment and style of leadership but as a general rule, I think it would be a natural thing for them to resort to.186

Importance of Other Factors Finally, it should be obvious that my focus on Islamic law is in no way to delegitimize influences of other factors such as power, strategy, or simple cost-​benefit concerns. Despite the fact that God’s message is intended to guide the behavior of all Muslim actors, individuals as well as collectivities, ILS may choose strategy over sharia’s creeds. As Abou El Fadl writes, “part of the problem with the application of Islamic laws in the contemporary age is that the state often cites the purported divine origin of these laws as a way of insulating itself from criticism. Since the state claims to act on behalf of the divine will, negotiating or reasoning with it is difficult, to say the least.”187 States, as units that interact with

184 Author interview with Imam Ibrahim Amin, Oxford Centre for Islamic Studies, Oxford, UK, May 16, 2016. 185 Dupret 2007, 84. Dupret goes perhaps a step further by focusing on people’s responses, or orientations to law as they come in contact with legal issues. 186 Author interview with Dr. Aida Othman, August 28, 2015. See note 1. 187 Abou El Fadl 2003a, 200.

 

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each other on the systemic level, pursue their interests. For most countries, these interests are demarcated in the language of power and capability. But ILS are to some extent unique in their embeddedness in an additional normative system, that of Islamic law, and this is what my theory captures.188 The normativity of international law is well established in the international system. It comes from sources external to ILS—​treaties, custom, general principles of law, judicial decisions, and the writings of qualified publicists.189 The normativity of Islamic law projects itself onto the international arena from inside ILS. In a way, there are different layers of sedimentation that have settled on the nation-​state shells of ILS.190 The Islamic legal tradition is one of these layers. In a sense, ILS form a subgroup of states within the broader framework of the international system. As Hashmi writes, “contemporary Muslim theorists—​modernists as well as fundamentalists—​agree that the Muslims are and should form a distinct multinational society within international society.”191 This reality shapes the way that ILS conduct their international dealings and negotiate agreements. In the word of Nawaf Alyaseen, “Nothing in Islamic sharia bans doing international agreements. The problem is when we come to the details of these agreements.”192 Many non-​ILS states have domestic legislation that conflicts with international law, but ILS are often more reluctant to shed conflicting domestic law that is based on sharia. Sharia’s presence in a domestic legal system gives ILS leaders sought-​after legitimacy. As Otto suggests, “Western policy-​makers should also learn to understand the governance dilemmas of Muslim governments. This means they must realise that progressive laws can also strike back at society like a boomerang; they should acknowledge the need in Muslim countries for symbols of Islamic belief, culture and national consciousness in the search for a collective identity.”193 But it is not the case that ILS are so peculiar as to be immune from all the other streams of influence that shape states’ behavior. As the following empirical c­ hapters 5, 6, and 7 make clear, the balance of Islamic and

188 In this context, it is useful to recall Reese, Ruby, and Pape’s (2017) work on the link between the Islamic calendar and political violence in Islamic societies. According to these authors, these calendars are not direct causes of political conflict (factors of economic, social, political nature, and so on). Instead, the Islamic calendar affects “the causal chain between these root causes and observed violence by enhancing or diminishing the incentives for militant groups to attack at particular moments” (p. 440). 189 These are the sources of international law, as listed in Article 38(1) of the Statute of the ICJ. I elaborate on these sources in ­chapter 3. 190 I thank Ebrahim Moosa for suggesting this interesting fact to me. 191 Hashmi 2002b, 155. 192 Author interview with Dr.  Nawaf Alyaseen, a Kuwaiti legal practitioner, Future Law Firm; Legal Consultants, Arbitrators, and Mediators, December 13, 2017. 193 Otto 2007, 153.

 



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secular law is only one stream of influence, albeit an important one. However, conceptualizing the linkages between ILS’ domestic legal systems and international conflict management mechanisms enables us to recognize patterns of these states’ behavior that otherwise would have gone unnoticed. Though this theory captures several crucial aspects of ILS’ behavior, many dynamics are still underexplored. Consequently, the complicated, ever-​evolving and mutually constitutive relationship between legal tradition, culture, politics and religion in the Islamic milieu calls for further theoretical development. Indeed, the ILS category—​with all its diversity and local consciousness—​requires more scholarly investigation. The broader point conveyed in this chapter is that ILS have preferences that differ from other states. These preferences are, in turn, projected onto international dispute resolution venues. The language of legitimacy in ILS nation-​states is not settled in the same manner as in the Western world. My theory introduces nuance into any blanket claim about ILS and international settlement venues and produces a number of hypotheses that I test in the next three chapters. The way that Islamic law and secular law amalgamate in ILS’ domestic legal systems shapes these states’ attitudes toward international law and international settlement venues. These attitudes are observable because ILS make specific choices with regard to conflict management venues when they are involved in disputes. Additionally, ILS have the opportunity to accept the jurisdiction of the International Court of Justice. Some of these states choose to recognize its adjudicatory powers, and some shy away from the Court. ILS do not all speak in the same legal language and do not project uniform norms onto the international arena.

 

5

Islamic Law States and Peaceful Resolution of Territorial Disputes

Peacefully resolving disputes over territory constitutes an important goal for the international community. Issues of territorial sovereignty continue to cause deadly friction between countries, and many of these contentions remain unresolved.1 Cases dealing with territorial delimitation make up a substantial part of the docket of the International Court of Justice. Territory is at the heart of power politics, rivalries, militarized conflicts, and wars.2 In fact, states most frequently go to war over issues of sovereignty.3 Territorial disputes are more salient than other types of international contentions because they deal with a critical element of statehood itself, one the contestation of which undermines the very existence of a state.4 Direct control over a piece of land yields important benefits for its sovereign, including tangible profits such as natural, strategic, security, agricultural, and economic resources and control over population. Territory has also intangible value associated with its historical, geographic, ethnic, reputational, and political status.5 In general, land feuds usually lead to severe consequences

1 Huth 1996; Owsiak 2013; Owsiak and Vasquez 2019; Tir and Vasquez 2012; Vasquez 2009. 2 Vasquez 1995. 3 As Goertz, Diehl, and Balas (2016, 89) demonstrate, territory has been “the most common war issue, with more than 80 percent of the cases having a territorial component.” 4 See Hensel 2001. There are several definitions of territorial disputes, some more encompassing than others. For the purpose of this book, I adopt Huth’s (1996, 19) definition: “A territorial dispute involves either a disagreement between states over where their common homeland or colonial borders should be fixed, or, more fundamentally, the dispute entails one country contesting the right of another country even to exercise sovereignty over some or all of its homeland or colonial territory.” See Goertz, Diehl, and Balas (2016) for a review of various definitions of territorial disputes. 5 Tangibility is associated with “security, survival, and wealth,” and intangibility with “culture/​ identity, equality/​justice, and other elements that do not have physical characteristics” (Goertz, Diehl, and Balas 2016, 83). As Hensel and Mitchell (2005) demonstrate, symbolic importance of territory might be more associated with states’ aptitude to use force than tangible importance. Islamic Law and International Law: Peaceful Resolution of Disputes. Emilia Justyna Powell, Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/ 9780190064631 .001.0001

 



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and are likely to involve violent force.6 The Islamic milieu has been no exception in this regard. There are several ongoing territorial disputes that involve ILS, including the Jammu-​Kashmir dispute between Pakistan and India, the dispute over water rights in the Helmand river between Iran and Afghanistan, and the Golan Heights dispute involving Syria, Lebanon, and Israel, to name a few. In this chapter,7 I explore ILS’ decisions to use specific methods of peaceful resolution offered by international law in the context of territorial disputes. While the main purpose of this chapter is to focus on the category of ILS, I offer additional points of comparison with state behavior more broadly. This allows me not only to understand ILS preferences, but to place the findings in the wider context of institutionalized modes of dispute settlement in territorial disputes. As discussed in ­chapter 1, there seems to be no regularity in how ILS attempt to solve territorial disputes. At times, the legal processes of arbitration and adjudication are employed in the context of highly salient territory, such as the Pakistan-​India disputes over the Rann of Kutch and Kashmir,8 or the Hawar Islands contention between Bahrain and Qatar.9 But a part of the Islamic milieu seems to prefer less formal dispute resolution venues, and even to avoid any form of third-​party institutionalized help altogether. Brunei, Comoros, Oman, and Yemen all fall into this category. Saudi Arabia, though offering its own services as a mediator in other ILS’ territorial disputes, avoids international formal resolution venues. For instance, during the Bahrain-​Qatar dispute, Saudi Arabia repeatedly insisted that the parties turn to the Saudi monarchy for assistance or find a solution via bilateral talks: “As the big sister to which the other Gulf states defer to various extents, Saudi Arabia does not want to see itself defending its borders at the ICJ, and would rather reach solutions by mutual consent through direct and candid negotiations.”10 In ­chapter  4, I  linked characteristics of the Islamic legal tradition to ILS’ preferences with respect to international conflict management methods. I  also noted that the Islamic law/​secular law domestic balance has a bearing on how much sharia—​however interpreted by the state—​gets projected onto 6 Territorial conflicts have been shown to undermine the pacifying effects of democratic institutions, despite the fact that the democratic peace theory has received robust empirical support (see Lektzian, Prins, and Souva 2010; Park and James 2014). For the concept of “territorial peace,” see Gibler 2012. 7 An earlier, much more rudimentary version of this chapter was published as Powell 2015. 8 The Indo-​Pakistan Western Boundary Case Tribunal (Award February 19, 1968). 9 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), ICJ Judgment of March 16, 2001, ICJ Rep 2001, 40. The dispute concerned several other territories including the island of Janan/​Hadd Janan, the shoals of Qit’at Jaradah and Fasht ad Dibal, and Zubarah, a townsite on the northwest coast of Qatar (see Schulte 2004). 10 Statement made in the context of the Bahrain-​Qatar dispute, Mideast Mirror 2000.

 

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international relations. If my theory has any purchase on ILS’ choices, then we should expect countries whose official legal systems are to a large degree infused with sharia to gravitate toward international venues that resemble traditional Islamic institutions, the non-​binding third-​party methods:  mediation, good offices, and conciliation.11 In contrast, ILS where secular laws play an important role should be more receptive to the binding third-​party methods: arbitration and adjudication. In particular, the question that I tackle in this chapter is under what configuration of domestic laws do ILS choose international courts and arbitration tribunals, a choice that signals openness to international law in general. Mediation and legal approaches are proposed and regularly convene at the request of the Islamic milieu. Of course, there is little doubt that non-​legal factors affect ILS’ preferences with respect to conflict management venues. Strategic, economic, and political circumstances loom over the conflict management process and affect ILS choices. These material considerations may also prompt ILS to use sharia-​based rhetoric in a calculated, strategic manner. Nevertheless, quantitative evidence presented here suggests that there is a considerable attraction and repulsion mechanism between domestic and international laws. Similarities attract and differences repulse. The following quantitative tests attempt to control for a variety of obvious factors that may be important—​for example, that the value of the territory may shape the disputants’ choice of conflict management venues or that international courts are less attractive to powerful states and more appealing to democracies. It is reasonable to expect that all of these factors have a direct bearing on ILS’ preferences.12 Yet, even controlling for a variety of other influences, I find that the balance between Islamic law and secular laws within each of the ILS shapes these states’ choices of international conflict management strategies. Additionally, empirical analysis of the behavior of all states—​ILS and non-​ILS—​in territorial disputes confirms the central claim of this book that the Islamic legal system does not operate in a binary manner: Islamic or non-​ Islamic. Consequently, ILS do not have a uniform attitude toward international models of dispute settlement that is somehow distinct from non-​ILS. Different ILS are attracted to specific international conflict management forums and these intra-​category dynamics get washed out by empirical models that try to measure the Islamic legal tradition with a single indicator.

11 See ­chapter 4 for a detailed description of these methods of peaceful resolution. 12 The literature, in the context of territorial dispute and beyond, has focused on several factors that arguably influence states’ decisions to use a particular method of dispute settlement. Some of these factors include strength of legal claim, considerations for domestic politics, economic interdependence, and the enforceability and cost of the legalized venues (see Alter 2014; Davis 2012; Davis and Morse 2018; Goertz, Diehl, and Balas 2016; Huth, Croco, and Appel 2013; Koremenos 2016).

 



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I begin this chapter by providing some background information about ILS’ territorial disputes and the venue choices that these countries make in the context of these disputes. I  also elaborate on Islamic notions of land ownership and sovereignty, contrasting them with classical international law. Finally, I present an empirical analysis of ILS’ attempts at peaceful settlement of territorial disputes (1945–​2012). The pattern of evidence supports the idea that not all ILS view international conflict management venues in the same way. Secular—​ or rather shared—​legal features, such as the presence of a secular court system and constitutional mentions of supreme courts and peaceful resolution of disputes, have the power to attract the Islamic milieu to formal international venues—​arbitration and adjudication. These secular institutions embedded in ILS’ domestic legal systems provide important points of connection with international formal venues. On the other hand, ILS whose legal systems are infused with traditional Islamic precepts are usually attracted to less formalized venues. However, as will become obvious in this chapter as well as the next, not all ILS with a strong presence of Islamic principles in their domestic legal systems permanently avoid international legal venues. This subgroup of the ILS category, consisting of relatively traditional societies, may under specific conditions be friendly to international adjudicators and arbitration venues.

Background Although some may anticipate that the dissimilarities between Westernized international law and the Islamic legal tradition may drive ILS away from international settlement venues, the descriptive evidence reveals some thought-​ provoking patterns. Table 5.1a charts ILS’ attempts at peaceful resolution in the context of territorial disputes in the postwar era (1945–​2012). The unit of analysis is an attempt made by a challenger or target in an Islamic law state to resolve a territorial dispute peacefully in any given dyad year.13 Attempts at peaceful settlement include calls for bilateral negotiations, for good offices, for conciliation, and for mediation by a third party, and an attempt at arbitration or adjudication by an international court or an arbitration panel.14 Importantly, data displayed here capture attempts or proposals to resolve a territorial dispute and not whether

13 The challenger state initiates the territorial claim against the target state, which maintains sovereignty or occupation of the contested piece of territory. The challenger’s main objective is to alter the status quo through a territorial exchange. The target state’s goal is to maintain the status quo. 14 I use the updated version of the Wiegand and Powell (2011) data on attempts, which include only substantive settlement attempts that deal with issues such as recognition of sovereignty, territorial concessions, and changes in ownership. See also Wiegand, Powell, and McDowell 2020.

 

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Table 5.1a. ILS’ Peaceful Resolution Proposals in Territorial Disputes, 1945–​2012a ILS: Peaceful Resolution Method

All Attempts

Challenger Attempts

Target Attempts

Bilateral Negotiations

344 (66%)

261 (66%)

135 (63%)

Non-​binding Third-​Party Methods

92 (17%)

65 (17%)

50 (23%)

90 (17%)

67 (17%)

28 (13%)

Total Attempts

526 (100%)

393 (100%)

213 (100%)

Number of Territorial Claims

46

(Good Offices, Inquiry, Conciliation, Mediation) Binding Third-​Party Methods (Arbitration, Adjudication)

Attempts where the proposing state is considered to be both challenger and target in a dispute are simultaneously tabulated as “challenger attempts” and “target attempts.” My data include eighty such attempts. Consequently, the numbers presented under “all attempts” are not a straightforward sum of the numbers of challenger and target attempts. This coding follows established coding decisions in the literature (see the Issue Correlates of War Project, Powell and Wiegand 2014). a

the parties actually used a specific venue, or whether the attempt was successful in ending a dispute. For a venue to be employed, both disputants must consent to the conflict management process in question. Their preferences have to converge to some extent. The simple frequency of actual instances of mediation, negotiations, arbitration, and so on is somewhat misleading in that the number of each country’s venue proposals is substantially higher than the number of methods actually employed. Both sides usually have diverging preferences and hence propose different options. The benefit of the data employed here is that I am able to empirically capture the dynamics of ILS targets’ and challengers’ preferences over time and thus provide a much larger number of observations compared with actual dispute settlements.15 These high numbers suggest that ILS try to use international conflict management venues throughout the life of a dispute. Measuring how states’ preferences change with time is particularly important in long-​lasting territorial disputes, as well as in instances when disputants’ domestic laws change.16 Although the purpose of the book is to delve 15 This approach is consistent with recent studies (Powell and Wiegand 2014; Wiegand, Powell, and McDowel 2020). 16 There are many substantial changes over time in the presence of Islamic law and secular law in ILS’ legal systems. Overall, Afghanistan’s constitutions have changed considerably over time, especially in terms of holy oath references. Jordan’s holy oath constitutional references have been more stable, with only one change in 1952, when a holy oath was included in the constitution. The Women

 



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Table 5.1b. Non-​ILS’ Peaceful Resolution Proposals in Territorial Disputes, 1945–​2012 Non-​ILS: Peaceful Resolution Method

All Attempts

Challenger Attempts

Target Attempts

Bilateral Negotiations

2052 (74%)

1008 (75%)

1044 (73%)

Non-​binding Third-​party Methods

378 (14%)

176 (13%)

202 (14%)

353 (13%)

166 (12%)

187 (13%)

(Good Offices, Inquiry, Conciliation, Mediation) Binding Third-​party Methods (Arbitration, Adjudication) Total Attempts

2783 (100%) 1350 (100%) 1,433 (100%)

Number of Territorial Claims

143

into the world of Islamic law in order to determine if there is any systematic way to predict behavior in the face of an international dispute, some points of comparison with state behavior more broadly are very useful. This holds especially for this chapter. Territorial disputes continue to affect international politics not only of the Islamic milieu, but also the non-​Islamic world. Consequently, it is important to place ILS’ patterns of behavior (Table 5.1a) in a broader context. Table 5.1b presents similar descriptive data for all non-​ILS during the same time period, and thus provides interesting points of comparison. During 1945–​2012, there were a total of 526 attempts by ILS at peaceful resolution, with 393 challenger attempts and 213 target attempts. Negotiations were proposed most often (344), followed by non-​binding third-​party methods (92), and binding methods (90). Overall, ILS that use third parties have no definite preference with respect to binding or non-​binding venues. However, as this chapter will demonstrate empirically, a commitment to either venue type depends on the balance of religious and secular laws within the ILS. Yet, on a group level, ILS seek third-​party–​mediated resolution more frequently than states representing Western legal traditions—​a finding that challenges the conventional wisdom. There is, therefore, no ipso facto aversion to third-​party assistance in conflict management in the Islamic milieu: 34 percent of ILS’ attempts in the postwar era have involved a third party. Moreover, in half of these cases (17 percent), ILS resorted to non-​binding third-​party methods, such as mediation and conciliation, while the other half consisted of attempts at the most in the Judiciary variable has interesting patterns: decisions to allow female judges are reversed only in extremely rare instances.

 

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legalized resolution venues—​arbitration and adjudication. By contrast, after World War II, non-​ILS have attempted third-​party methods 27 percent of the time, 14  percent being attempts at non-​binding methods and 13  percent at binding methods. Yet policymakers and scholars typically expect the Islamic milieu to avoid the formal venues of international justice. Both groups of states, ILS and non-​ILS, share an overwhelming preference for negotiating territorial disputes. This finding is hardly surprising. Negotiations are not procedurally complicated. States try to come to an amicable solution themselves, without any intermediary. As Bercovitch and Jackson note, negotiation “is essentially an approach to conflict that is symmetric, equal, and voluntary.”17 Consequently, it is via the simple exchange of views that most territorial disputes are resolved. There are many benefits to negotiations and thus states are frequently determined to solve their contentions this way. Merrills argues that “often, indeed, negotiation is the only means employed, not just because it is always the first to be tried and is often successful, but also because states may believe its advantages to be so great as to rule out the use of other methods, even in situations where the chances of a negotiated settlement are slight.”18 But a cursory look at Tables 5.1a and 5.1b reveals that it is non-​ILS countries that resort to negotiations more frequently than disputants from the Islamic milieu (74 percent versus 66 percent). It is interesting to examine the behavior of challenger states from the Islamic and non-​Islamic parts of the world. Non-​ILS’ challengers attempt non-​binding third-​party methods along with arbitration and adjudication less frequently than ILS’ challengers. However, the dynamics of ILS and non-​ILS preferences diverge most in the context of target states. While the behavior of non-​ILS targets largely reflects the overall dynamics of the non-​Islamic group of countries involved in territorial disputes, targets from the Islamic milieu tend to prefer non-​ binding third-​party venues over the binding options. To inquire into the reasons standing behind these states’ preferences, it is helpful to circle back to the Islamic legal tradition. In the event of a direct challenge regarding a territorial status quo, targets in ILS may be more likely to invoke Islamic notions of brotherly settlement. As explained in ­chapter 4, the philosophy of Islamic informal settlement is most likely to be carried out on the international level via mediation and conciliation. Moreover, via the non-​binding methods, the disputants may, if desired, appeal to legal, moral, and cultural aspects of Islamic resolution. Since bilateral negotiations and the most legalized venues—​arbitration and adjudication—​lack the formal structures that enable drawing on Islamic procedural and substantive



Bercovitch and Jackson 2009, 8. Merrills 2017, 2.

17 18

 



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principles, ILS that are targets may simply feel more comfortable with mediation and conciliation. By contrast, Islamic notions of brotherly settlement are unimportant to non-​ILS disputants in territorial contentions. Thus, non-​Islamic target states challenged with a territorial claim find no comfort in resorting to mediation or conciliation. The more formal venues of conflict management, such as an arbitral tribunal or an international court, or, alternatively, simple bilateral negotiations, are seen as valuable options. Looking at the different patterns of ILS and non-​ILS behavior in territorial disputes, two general conclusions are warranted. First, it is the Islamic milieu that seems to see more value in third-​party international settlement. This statement captures ILS’ views of the non-​binding third-​party methods—​mediation, conciliation, good offices, inquiry; as well as the binding methods—​international courts and arbitration tribunals. Second, in territorial disputes involving non-​ Islamic states, challengers and targets seem to share similar views regarding all the models of dispute settlement, institutionalized or not. This is not the case for territorial feuds involving the Islamic milieu, where a state’s position as challenger or target affects its preferences. Table 5.2 provides insights into the specifics of patterns regarding ILS:  it presents data for each of the ILS separately. First, some ILS shy away from any third-​party assistance. Bangladesh, Brunei, Comoros, Oman, and Tunisia prefer to negotiate during their territorial contentions. This tendency mirrors general patterns of dispute resolution, patterns describing the behavior of all states, not only ILS. Most states prefer to solve their contentions without outside intervention.19 But, according to Table 5.2, several ILS seem to gravitate toward third-​ party non-​binding venues. This does not mean that other venues, negotiations specifically, are not utilized, but that non-​ binding third-​ party venues are considered as a viable option. We see this pattern for Algeria, Bahrain, Egypt, Indonesia, Iraq, Jordan, Kuwait, Qatar, and Syria. Finally, several ILS propose legal mechanisms:  arbitration and adjudication. Actually, Bahrain, Malaysia, Qatar, and UAE attempt these methods at a higher rate than other methods. To other ILS, legal mechanisms—​although repeatedly employed—​are equally or just slightly less attractive options. Indonesia and Yemen provide good examples here. Moreover, non-​binding third-​party methods are proposed quite frequently by countries that embrace traditional Islamic precepts, which at first glance may be interpreted as being at odds with international law. Algeria and Syria fall into this category. Similarly, although used less frequently, legal mechanisms are commenced at the request of relatively traditional ILS, such as Pakistan or Qatar.

19 Goertz, Diehl, and Balas (2016, 178)  show that at least 50  percent of territorial claims are terminated via bilateral negotiations.

 

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Table 5.2. Peaceful Resolution Attempts by ILS, 1945–​2012 ILS

Territorial Disputes

Negotiations Non-​ binding Third-​ party Methods

Binding Methods

Afghanistan Pashtunistan (Pakistan); China-​ Afghanistan Frontier (China)

4

2

0

Algeria

Tindouf (Morocco)

2

5

0

Bahrain

Hawar Islands, Zubarah (Qatar)

1

7

8

12

0

0

2

0

0

Bangladesh Border Enclaves (India) Brunei

Limbang (Malaysia)

Comoros

Mayotte (France)

18

0

0

Egypt

Halaib Triangle (Sudan); Sudan (UK); Taba, Sinai Peninsula, et al. (Israel)

19

8

3

Indonesia

Sipadan, Ligitan (Malaysia); East Timor (Portugal); West Irian (Netherlands)

6

7

7

Iran

Abu Musa, Tunb Islands (UK, UAE); Firuze (Russia); Shatt al-​ Arab, Khuzestan (Iraq); Farsi, Al-​ Arabiyah Islands (Saudi Arabia)

27

1

1

Iraq

Shatt al-​Arab, Khuzestan (Iran); Kuwait (UK); Iraq-​Saudi Neutral Zone (Saudi Arabia); Kuwaiti Sovereignty (Kuwait)

25

6

1

Jordan

Jerusalem, Southern Negev, and DMZs (Israel); Aqaba (Saudi Arabia)

23

6

0

Kuwait

Kuwaiti Sovereignty (Iraq); Saudi-​Kuwait Neutral Zone (Saudi Arabia)

8

6

0

Libya

Chadian Border (France); Aouzou Strip (Chad)

5

2

5

Malaysia

Pulau Batuh Puteh/​Pedra Branca (Singapore); Limbang (Brunei); Southern Spratly Islands (Philippines); Sipadan, Ligitan (Indonesia)

5

1

18

 



ILS

Peacef ul R e s olution o f Ter r itor ial Di sp ute s

Territorial Disputes

Mauritania Western Sahara (Spain)

173

Negotiations Non-​ binding Third-​ party Methods

Binding Methods

1

0

1

30

9

1

Morocco

Western Sahara (Spain); Algerian Border (France); Mauritanian Independence (Mauritania); Tindouf (Algeria)

Nigeria

Bakassi Peninsula (Cameroon)

8

3

4

Oman

Eastern Buraimi (Saudi Arabia); Ras al-​Khaimah (UAE); Dhofar (Yemen); Kuria Muria Islands (Yemen PR)

15

0

0

Pakistan

Pashtunistan (Afghanistan); Trans-​Karakoram Tract (China); Jammu, Kashmir, Rann of Kutch (India)

31

3

6

Qatar

Al-​Khafous (Saudi Arabia); Hawar Islands, Zubarah (Bahrain)

5

7

11

Saudi Arabia

Al-​Khafous (Qatar); Eastern Buraimi (Oman); Buraimi, Sila, and Border Dispute (UAE); Qaruh and Umm al-​Maradim Islands (Kuwait); Buraimi and Border Regions (UK); Al-​Wadiah Beihan (Yemen PR, Yemen); Aqaba ( Jordan); Iraq-​Saudi Neutral Zone (Iraq); Farsi, al-​ Arabiyah Islands (Iran)

47

3

1

Sudan

Halaib Triangle (Egypt)

3

1

2

Syria

Golan Heights, Syria-​Israel DMZ (Israel)

10

9

0

Tunisia

Bizerte, Garet el-​Hamel, Edjele (France)

8

0

0 (continued )

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Isl amic L aw and International L aw

Table 5.2. Continued ILS

Territorial Disputes

UAE

Abu Musa, Tunb Islands (Iran); Buraimi, Sial, and Border Dispute (Saudi Arabia); Ras al-​Khaimah (Oman)

Yemen

Hanish Islands (Eritrea); Al-​Wadiah Beihan (Saudi Arabia); Dhofar (Oman)

Yemen A.R. South Yemen, Kamaran Island (Yemen PR) Total:

Negotiations Non-​ binding Third-​ party Methods

Binding Methods

12

3

16

7

2

5

10

1

0

344

92

90

Typically in the context of one dispute, disputants subsequently propose various venues. Figure 5.1 shows the dynamics of attempts at peaceful resolution during the Bahrain-​Qatar dispute. The disagreement was over five territories: the Hawar Islands, the island of Janan/​Hadd Janan, the shoals of Qit’at Jaradah and Fasht ad Dibal, and Zubarah, a townsite on the northwest coast of Qatar.20 For many decades, the conflict kept surfacing; whenever Qatar would bring up its claim to the contested Hawar Islands, Bahrain followed by restating its territorial claim to Zubarah.21 Over a span of thirty years, each state attempted a variety of methods: Qatar, the challenger, proposed non-​binding third-​party methods five times and repeatedly suggested adjudication (eleven times). Bahrain, the target, attempted negotiations once, non-​binding third-​party venues seven times, and binding venues eight times. Qatar’s decision to turn the dispute over to the ICJ in 1991 came many years after the dispute broke out. Several regional actors were displeased with Qatar’s preference for adjudication, preferring negotiations or non-​binding third-​party methods. In particular, Saudi Arabia repeatedly offered its good offices from 1976 until the Court’s judgment. The ICJ settled the contention by issuing a judgment that awarded each country part of the territory. Bahrain retained the Hawar Islands and Qit’at Jaradah, and the Court ruled that Qatar had

20 Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, ICJ Judgment of March 16, 2001, ICJ Rep. 2001, 40. 21 Schulte 2004, 234–​235. See also Powell 2016.

 

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Negotiations

2001

2000

1999

1998

1997

1996

1995

1994

1993

1992

1991

1990

1989

1988

1987

1986

1985

1984

1983

1982

1981

1980

1979

1978

1977

1976

1975

Binding Third Party

Settlement Method

Non-Binding Third Party



Year Qatar

Bahrain

Figure 5.1.  Settlement attempts during the Bahrain-​Qatar dispute.

sovereignty over Janan/​Hadd Janan, Zubarah, and the Fasht ad Dibal.22 My data capture all these attempts and thus reproduce the distinct preferences of Bahrain and Qatar in any given year, instead of coding merely the final settlement by adjudication. The patterns of Bahrain/​Qatar contention largely confirm my expectations. Conflicts involving ILS are distinctly marked by attempts at mediation, conciliation, and good offices. Even if eventually the disputants resort to more formal venues, the Islamic legal tradition’s preference for nonconfrontational modes of resolution and potential substantive disagreements between Islamic law and international law direct ILS toward the non-​binding third-​party venues.

Territory and Sovereignty in Islamic Law Territorial sovereignty is at the heart of territorial disputes. The differences between Western and Islamic notions of land ownership and sovereignty have been the subject of much discussion. In Western legal thought, which 22 In November 2017, Bahrain published a press release on the state’s official news agency stating that Bahrain has “every right to claim what was cut off forcibly from its land and to dispute the legitimacy of the Qatari rule” (“Sovereignty and Legitimate Rights: Historical Facts,” Bahrain News Agency, November 4, 2017. See also “Bahrain Re-​opens Border Dispute with Qatar,” Aljazeera News, November 5, 2017.

 

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has historically permeated international law in this respect, the doctrine of sovereignty teaches that the state sovereign is the highest source of authority within a state. In particular, the positivist legal philosophy of John Austin embraces the idea of absolute sovereignty, earlier propagated by Thomas Hobbes. John Locke saw sovereignty in a more limited way, proposing that a ruler is restricted in his powers by a social contract. It is this contract that provides the foundation for a ruler’s rights and obligations toward his people. The Lockean notion of people’s inalienable rights constrains the sovereign. In contrast, according to Islamic law, God owns the land, whereas the state is supposed to administer it in accordance with His laws. As Hallaq writes, “the Community itself neither possesses sovereignty nor does it have—​in the sense the modern state has—​an autonomous political or legal will, since the sovereign is God and God alone.”23 Territory constitutes a sacred trust for states, tribes, and individuals. The community takes precedence over the state; so does an individual who “is beholden, in the final analysis, only to God.”24 This approach to sovereignty parallels the Islamic concept of property, which contests the Western notion of absolute dominion of humans over material goods. Ultimately, ownership of all things is vested in God. Moreover, any individual owner has, to an extent, a responsibility to share with the collectivity. Islamic religious notions of partial sovereignty and land stewardship are at odds with the Western zero-​sum framework used to comprehend states’ motivations in territorial contentions. In the West, an individual or a collectivity is endowed with a certain set of rights over property. The Islamic notion of sovereignty is not absolute but conditional.25 The Quran teaches: “Say: O God, Lord of Sovereignty! Thou gavest sovereignty to whom Thou pleases. Thou exaltest whom Thou pleases and abasest whom Thou pleases. In Thy hand is all good for Thou hast power over all things.”26 This type of reasoning questions territorially based sovereignty in the domestic realm—​ the state’s sovereignty over its people; as well as in the international realm—​the state’s sovereignty in relations with other countries.27 Thus, a secular contract between a ruler and his people may constitute an insufficient basis to fully regulate a leader’s obligations. Interestingly, the idea of a social contract as the basis for a ruler’s duties, present in the West, has a corresponding although deeply modified equivalent in Islam. While Western social contracts are contracts concluded between human beings, in Islam, each person has a covenant with God. This covenant inherently rests on an unequal relationship between the parties and God

Hallaq 2013, 49. Jackson 1996, 224. 25 Khaliq 2013. 26 Quran, Sura 3, verse 26. 27 See Badr 1982, 59. 23 24

 



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who has the higher authority. The political ruler’s power is kept on trust from God. While the traditional Islamic notion of sovereignty retains a territorial dimension, it fundamentally rests on personalistic relationships:  the people are subjugated to a ruler via communal or tribal ties of allegiance and only weakly tied to particular lands.28 A person’s allegiance is not necessarily defined in territorial terms, but along religious lines.29 The Western understanding of sovereignty no doubt plays a fundamental role in the international affairs of all states, including ILS. The Islamic milieu is part of the international community, and as such it must recognize the existing system of norms. It is international law that constitutes a binding framework that outlines the legal ramifications of sovereignty. ILS cannot escape this reality.30 However, while international law may be perceived by the Western world as neutral, benevolent, and legitimate, some ILS see it as a tool of the West. Additionally, in the Islamic milieu itself, with the introduction of West-​inspired written codifications that apply within sharply delineated state borders, the personal understanding of law has lost some ground.31 Thus, citizens of Oman are bound by Oman’s domestic legal system, and when they cross the borders to the United Arab Emirates or Saudi Arabia, they become subject to these legal systems. But, as evidenced in legal arguments advanced by ILS in the context of territorial disputes, the Islamic notion of sovereignty—​including its personalistic component as well as divine sanctions—​seems to matter to these countries. It constitutes an integral part of the Islamic legal tradition, and it is, to some extent, protected by the Muslim world. According to Burgis, territoriality and confinement by boundaries is still not well established in Arab states. She argues that “numerous violations of territorial borders, external interference and non-​state actor violence all occur on a regular basis. These phenomena symbolize a shaky system that has been able to survive, thanks largely to modern tools of state repression along with substantial foreign aid.”32 As I mentioned in c­ hapter 4, although most ILS accept classical international law as the “rules of the game,” the content of nation-​states in ILS is deeply infused by Islamic law.33 But, for ILS that are seeking to settle a territorial dispute, the most vital concern is extending sovereignty over a contested piece of land—​the realization of their ultimate preferences. Thus, at times states in the Islamic milieu may choose to conceal the issue of whether Islamic law or classical international law is to take precedence, as 28 For an interesting in-​depth discussion of this issue and, more broadly, the concept of territorial boundaries in the Islamic legal tradition, see Abou El Fadl 2003b. 29 Mallat 2007, 171. 30 See ­chapter 4 for a discussion of this issue. 31 See Fadel (2009) for an excellent discussion of the role of codification in the Islamic milieu. 32 Burgis 2009a, 86–​87. 33 See, more generally, Moosa 2015b.

 

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long as a desired outcome is achieved.34 For instance, in the Bahrain/​Qatar contention, Qatar anchored its arguments in the “Arabo-​Islamic legal tradition.”35 To counter these claims, Bahrain contended that “the Qatari Memorial contains many references to the ‘Arabo-​Islamic tradition’ as something that bears upon the content of Qatar’s international obligations. As Bahrain hopes it has shown, whatever else there may be in this tradition, it does not have the effect for which Qatar contends in modifying fundamental rules of universal international law.”36 Yet, the incongruity between Islamic and Western interpretations of the principle of sovereignty surfaces in territorial contentions that make it to international arbitration and adjudication. For instance, during the ICJ’s Western Sahara advisory proceedings,37 both Morocco and Mauritania justified their claims to Western Sahara by referring to personal ties of allegiance between Saharan nomads and state-​like entities in what is now Moroccan and Mauritanian territory.38 In its argumentation, Morocco suggested that the Western Sahara peoples’ religious allegiance to the Moroccan Sultan was to be equated with territorial sovereignty. Algeria’s advocate Mohammed Bedjaoui proposed that the ICJ should consider the Islamic notion of dar-​al-​islam, the territory of Islam. In its opinion, the ICJ adhered to the territory-​based, Western notion of sovereignty by stating that allegiance to a ruler, if it is to be associated with sovereignty, “must clearly be real and manifested in acts evidencing acceptance of his political authority.”39 In his separate opinion, Spanish judge Federico De Castro unambiguously critiqued Morocco for failing to base its claims within the Western concept of sovereignty, arguing that the umma’s sense of belonging is “a tie which is not to be confused with legal or political ties.”40 Arguments anchored in the Islamic legal tradition were also brought up before the ICJ in the Libya v. Chad dispute, when Libya based its claim on legitimate religious authority exercised over the people inhabiting the Aouzou strip. Libya attempted to appeal to shared Islamic belief and personal loyalty to the Caliph. The ICJ did not accept Libya’s Islamic legal arguments. Similarly, in the Indonesia v.  Malaysia contention over Pulau Ligitan and Pulau Sipadan, Malaysia continued to place emphasis on personal rather than territorial ties—​a tactic that was in due course rejected by the ICJ.41 34 See Powell 2016, 2018a. 35 Memorial submitted by Qatar, Vol. 1, February 10, 1992, 100, para 5.09. 36 Counter Memorial submitted by Bahrain, Vol. 1, June 11, 1992, 115, para 9.1. Also cited in Khaliq 2013, 116. 37 Western Sahara, ICJ advisory opinion of October 16 (1975) ICJ Rep 1975, 12. 38 Franck 1976. 39 Western Sahara, ICJ advisory opinion of October 16 (1975) ICJ Rep 1975, 12. 40 Western Sahara, ICJ advisory opinion of October 16 (1975) ICJ Rep 1975, 12, separate opinion of Judge De Castro, 148. 41 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/​Malaysia), application for permission to intervene, ICJ Judgment of October 23, 2001, ICJ Rep 2001, 575.

 



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In the aforementioned dispute between Qatar and Bahrain over the Hawar Islands, both sides used similar personalistic arguments alongside Western-​style claims based on the principle of uti possidetis juris to justify their sovereignty rights.42 In particular, Qatar relied on the Islamic notion of communal property. The Eritrea-​ Yemen arbitration over the Hanish Islands also features interesting discussion of Islamic and Western notions of sovereignty. In its decision, the Permanent Court of Arbitration (PCA) recognized the inconsistency between tribalism and territoriality by stating that “there is the problem of the sheer anachronism of attempting to attribute to such a tribal, mountain and Muslim medieval society the modern Western concept of a sovereignty title, particularly with respect to uninhabited and barren islands used only occasionally by local, traditional fishermen.”43 Territorial disputes provide an excellent context to examine ILS’ preferences with respect to conflict management venues. The entire pool of such venues is at the disposal of the disputants over the life span of the contention: bilateral negotiations and the non-​binding, as well as the binding, third-​party methods. As noted in ­chapter 4, collectively, the formal settlement venues—​arbitration and adjudication—​base their decisions on international law and thus put a premium on the Western understanding of sovereignty, among other concepts. Moreover, these venues usually shy away from drawing on the Islamic legal tradition in the process of interpretation. I expect, therefore, that ILS where secular laws play an important role are more accepting of binding third-​party methods. Secular laws embedded in ILS’ legal systems form a natural bridge with international law and international legal mechanisms. The impact of secular laws in the Islamic milieu varies widely, but the presence of such laws acts as an important force drawing states to international courts and arbitration tribunals. The situation is quite different for ILS whose legal systems remain closely tied to the Islamic legal tradition. It is only via less formal venues that such ILS can fulfill their preferences regarding the nature of social interaction and engage in nonconfrontational dispute settlement. Therefore, I expect the following: Hypothesis 5.1:  Islamic law states whose domestic laws embrace traditional Islamic law principles are more likely than other Islamic law states to resort to non-​binding third-​party methods in attempting to settle their territorial disputes. 42 Territorial Dispute (Libyan Arab Jamahiriya/​Chad), ICJ Judgment of February 3, 1994, ICJ Rep.  1994, 6; Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v.  Bahrain), ICJ Judgment of March 16, 2001. The principle uti possidetis juris embraces the idea that the borders of newly independent states should follow their previous colonial frontiers (Cassese 2005). 43 Eritrea-​Yemen Arbitration, Award of the Arbitral Tribunal in the First Stage—​Territorial Sovereignty and Scope of the Dispute, October 9, 1998.

 

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Hypothesis 5.2: Islamic law states whose domestic laws incorporate secular/​shared principles are more likely than other Islamic law states to resort to binding third-​party methods in attempting to settle their territorial disputes. In the next chapter, I explore more fully ILS’ preferences specifically with respect to the International Court of Justice. My analysis at this stage focuses on these states’ decisions to approach the entire spectrum of international conflict management venues in the context of their territorial contentions.

Research Design To evaluate these hypotheses empirically, I  analyze data from 1945–​2012 on ILS’ attempts at peaceful resolution in territorial disputes. The unit of analysis is an attempt made by the ILS’ challenger or target state to peacefully resolve a territorial dispute in any given dyad year, as explained earlier in the context of Table 5.1a.44 ILS’ attempts at peaceful settlement include calls for bilateral negotiations, for good offices, for conciliation, and for mediation by a third party and an attempt at arbitration or adjudication by an international court or an arbitral panel. The dependent variable, the method of peaceful resolution attempted by the challenger or the target, has the following categories: (1) bilateral negotiations; (2)  non-​binding third-​party methods (inquiry, good offices, conciliation, mediation); and (3) binding third-​party methods (arbitration, adjudication). Because this project deals exclusively with ILS, I use only attempts made by challenger or target ILS, regardless of the legal system of the other disputant. By way of illustration, attempts made by both disputants in the context of the Bahrain-​Qatar contention, as well as attempts by Morocco in the Morocco-​France dispute, are included in the data. I combine arbitration and adjudication for the reason that there are too few instances of ILS’ attempting arbitration, as Table 5.3a demonstrates.45 These patterns are somewhat unexpected. Arbitration is a bit less formal than adjudication and gives countries more control over the proceedings. Yet ILS that chose the binding venues also chose the most formal venues, the courts. Table 5.3a, which deals with behavior of the Islamic milieu, is especially interesting in light of patterns presented in Table 5.3b—​behavior of non-​ILS. In 44 See note 13 for definitions of a challenger and a target. 45 Attempts at arbitration are disproportionally uncommon in comparison with the other methods (16 cases out of 526 total attempts). Multinomial logistic regression could suffer from small sample size bias if arbitration was considered as a separate category.

 



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Table 5.3a. ILS’ Attempts at Arbitration and Adjudication, 1945–​2012a ILS: Attempts at Binding All Attempts Third-​Party Methods

Challenger State Attempts

Target State Attempts

Arbitration

16 (18%)

11 (16%)

10 (36%)

Adjudication

74 (82%)

56 (84%)

18 (64%)

Total

90

67

28

Attempts where the proposing state is considered to be both challenger and target in a dispute are simultaneously tabulated as “challenger attempts” and “target attempts.” My data includes eighty such attempts. Consequently, the numbers presented under “all attempts” are not a straightforward sum of the numbers of challenger and target attempts. This coding follows established coding decisions in the literature (see the Issue Correlates of War Project, Powell and Wiegand 2014; Wiegand, Powell, and McDowell 2020). a

Table 5.3b. Non-​ILS’ Attempts at arbitration and Adjudication, 1945–​2012 Non-​ILS: Attempts at Binding Third-​Party Methods

All Attempts

Challenger State Attempts

Target State Attempts

Arbitration

108 (31%)

52 (31%)

56 (30%)

Adjudication

245 (69%)

114 (69%)

131 (70%)

Total

353

166

187

general, non-​ILS are more open than ILS to employing international arbitration as a mode for dispute settlement. At the same time, non-​Islamic disputants are less likely to attempt resolution by international courts. This observation holds not only if we look at all attempts in territorial disputes, but also when we examine the behavior of challenger states only. While challengers in ILS and non-​ILS prefer adjudication, this is truer of ILS challengers. However, the two groups of states—​ILS and non-​ILS—​differ most in the context of the behavior of target states. While the numbers tilt considerably in favor of arbitration for targets located in the Islamic milieu, the behavior of targets in non-​ILS largely reflects that of challengers in non-​ILS. It is interesting to ponder why this is the case. In general, target countries benefit most from the territorial status quo, since it is the challenger that makes a territorial claim. Thus, a target state will likely try to preserve the territorial status quo. For a target in ILS, Islamic notions of sovereignty may provide a valuable resource to help strengthen legal claims. Arbitration constitutes a considerably more flexible institutionalized mode of dispute settlement. Consequently, Islamic conceptions of territorial sovereignty are more likely to appear in deliberations of an arbitration

 

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31% 30

20

10

0

8.9%

10%

ILS Addressee Negotiations

8.6%

6.7%

Non-ILS Addressee Non-Binding Third Party Binding Third Party

Figure 5.2.  ILS’ attempts at peaceful resolution: ILS and non-​ILS addressee, 1945–​2012.

tribunal than in an international court. In ­chapter 6, I talk about the limited presence of Islamic legal arguments in the International Court of Justice. All else being equal, it is very likely that when deciding between international arbitration and adjudication, targets in ILS simply feel more comfortable and hopeful resorting to an arbitration tribunal. As a whole, Tables 5.3a and 5.3b provide valuable insights into states’ preferences with respect to institutionalized modes of dispute settlement. In order to delve further into the behavior of Islamic law states, Figure 5.2 charts ILS’ attempts at the three categories of the dependent variable, breaking down the data by the addressee of the attempt for ILS and non-​ILS. The data are split almost evenly: 53 percent of attempts were directed toward an Islamic addressee, while 46 percent toward a non-​Islamic addressee. Interestingly, we see no significant differences between the two groups.46 Perhaps the most interesting fact is that adjudication and arbitration are attempted more often in disputes between two ILS (10 percent) versus when the addressee of the attempt is from non-​ILS. However, it is worth noting that the Bahrain-​Qatar dispute was quite protracted and thus contained many attempts at the binding methods (total of nineteen), which contributes many observations to my data.

46 To further inquire into the different patterns of behavior in the context of ILS/​ILS and ILS/​ non-​ILS’ disputes, I estimated a model controlling for ILS/​non-​ILS’ addressee. See note 70 for a detailed description of results.

 



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Islamic Law States and Their Domestic Legal Systems Since a separate chapter—­​­chapter  2—​is devoted largely to the ILS category, at this stage I only focus on empirical matters associated with ILS and features of their domestic legal systems that have not yet been addressed. To capture past and contemporary features of ILS’ domestic legal systems (total of thirty states), I  gathered my own data using the following sources:  Otto (2010a); the Central Intelligence Agency (CIA) World Factbook (2010); official ILS’ constitutions; constitutional amendments, codes, statutes, and other legal documents; and news articles from Lexis-​Nexis, JSTOR, the Telegraph, and other periodicals.47 Data on ILS’ domestic legal systems required coding information from a total of 172 constitutions and major constitutional amendments. I  also conducted numerous in-​depth interviews with scholars and practitioners of Islamic law and international law as well as Islamic religious leaders.48 To test my hypotheses, I coded two sets of independent variables: the first deals with Islamic law, and the second with secular law/​shared features.49 Both of these categories correspond to ­chapter 2’s discussion of Islamic legal features and secular/​shared legal features in ILS’ domestic legal systems. Descriptive statistics for all these variables are summarized in Table 5.4. The first set includes Sharia/​Islam, Holy Oath, Muslim Head of State, Supremacy of Sharia, Sharia-​Based Education, and Customary Law. These variables capture the presence of provisions in ILS’ constitutions that indicate expressive commitment to Islamic law. To hark back to my earlier discussion, 47 It is impossible to provide an all-​inclusive list of the nearly one hundred sources I consulted to construct data on Islamic law states. Some other sources include the Asian Legal Information Institute (http://​www.asianlii.org) and NYU GlobaLex (www.nyulawglobal.org/​Globalex/​about. html). In several instances I gathered information from original Islamic law sources written in the Arabic language (texts of constitutions, international treaties, and written codifications of Islamic law) in order to minimize the Western bias potentially present in the English-​language literature and sources. Moreover, I  have extensively consulted literature originating in the Islamic scholarly community. 48 I have interviewed scholars and practitioners from traditional ILS (Iran, Nigeria, Syria), as well as more secularized states ( Jordan, Malaysia, the United Arab Emirates). 49 To test the robustness of my findings, I have estimated the models using the RAS2 dataset, specifically the Government Involvement in Religion (GIR) score and the Restrictions on Religious Minorities score (see Fox 2015). As I  explain in c­ hapter  2, the RAS2 dataset covers many indicators that are similar to my data. Yet, RAS2 covers a shorter time frame (1990–​2008), which substantially reduces the statistical power of my empirical analyses, reducing N by over 50  percent. Nevertheless, models with the two RAS2 scores uniformly confirm my overall findings that ILS whose governments are intensely involved in regulating religion are more drawn to the non-​binding PRD methods. The Restriction on Religious Minorities variable is statistically insignificant in all models.

 

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Table 5.4. Descriptive Statistics: Islamic Law and Secular/​Shared Legal Features Variable

Distribution

Mean

Std. Dev.

Minimum: 0

15.58

32.14

0.56

0.5

0.44

0.5

0.26

0.44

0.02

0.07

0.28

0.45

0.26

0.44

0.67

0.47

0.77

0.42

0.38

0.49

0.14

0.35

0.84

0.37

Islamic Law Sharia/​Islam

Maximum: 209 Holy Oath

No: 44% Yes: 56%

Muslim Head of State

No: 56% Yes: 44%

Supremacy of Sharia

No: 74% Yes: 26%

Sharia-​Based Education

Minimum: 0 Maximum: .5

Customary Law

No: 72% Yes: 28%

Secular Law/​Shared Features Rule of Law

No: 74% Yes: 26%

Supreme Court

No: 33% Yes: 67%

Secular Courts

No: 23% Yes: 77%

Women in Judiciary

No: 62% Yes: 38%

Peaceful Resolution of Disputes

No: 86% Yes: 14%

Education in Constitution

No: 16% Yes: 84%

some of these variables reflect the strong bond between Islamic law and a broader sociolegal context. In particular, the presence of custom and tribal traditions is associated not only with Islam, but also with pre-​Islamic nomadic traditions. In fact, in all regions represented in the data, Middle East, Africa, and Asia/​

 



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Oceania, local customs have constituted an important part of the legal landscape before the arrival of Islam.50 Entries for these variables in state-​years when there was no constitution are coded 0. The Sharia/​Islam count variable is designed to capture the number of times that sharia and/​or Islam are mentioned in a constitution, and ranges from 0 (Indonesia 1945–​2012) to 209 (Iran 1989–​2012). Holy oath codes whether a state’s constitution refers to a religious oath that is to be taken by public officials. As explained in c­ hapter 2, these oaths are often required from the executive, the judiciary, and the legislature. A total of 56 percent of state years in the data have such provisions. The Muslim Head of State and the Supremacy of Sharia clauses are slightly less frequent, but nonetheless appear in a considerable portion of my data points—​44  percent and 26  percent, respectively. The Sharia-​Based Education variable is constructed by dividing the number of Islamic/​sharia education constitutional mentions by the number of all constitutional education mentions (education, secular education, religious education, and so on). Therefore, this variable is a 0 to 1 scale, where higher scores indicating the relative prevalence of Islamic/​sharia education mentions in comparison with all other education references. Usually, ILS’ constitutions do not explicitly mention whether education is to be religious, secular, or based on sharia. In my data, Islamic/​sharia education mentions account for a small 2.7 percent of all state-​year constitutional mentions of education. A higher number, 7 percent specifically, refer to religious education. For example, as of 2004, the amended Pakistani Constitution mentions the word “education” eighteen times, “religious education” once, and “Islamic/​sharia” education once as well. In this context, Article 45 of Afghanistan’s 2004 Constitution constitutes an interesting example: “The state shall devise and implement a unified educational curriculum based on the tenets of the sacred religion of Islam, national culture as well as academic principles, and develop religious curricula for schools on the basis of existing Islamic sects in Afghanistan.” Similarly, the Qatari 1972 Constitution in Article 8(C) stipulates that the goal of education is “the creation of citizens who are strong in body, mind and character, believing in God, possessing good morals, proud of their Arab-​Islamic heritage.” The benefit of this particular coding of Islam-​related educational provisions is that it captures the relative relationship between such provisions and all education-​ related provisions. The Customary Law variable measures whether a constitution refers to custom, customary law, unwritten law, tribal law, or traditions. In this context, it is important to circle back to ­chapter  3 and mention that sharia’s



See the discussion of customary law in c­ hapters 2 and 3.

50

 

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embracing of customary law constitutes an important point of convergence with international law. In a way, reliance on customary law introduces a degree of procedural compatibility between the Islamic legal tradition and international law, a compatibility in how legal norms emerge and how they are applied in the decision-​making process. Importantly, international courts and arbitration panels can refer to custom as a source of law. This commensurability is potentially essential. Research demonstrates that the authority of an institution to produce binding decisions is developed not only by the substance of decisions, but also by the procedure employed to produce the outcome.51 Because customary law shapes the substance and procedure in both legal systems, ILS may see this feature of international law as attractive. The second set of variables, designed to capture secular law/​shared features of ILS’ domestic legal systems, includes Rule of Law, Supreme Court, Secular Courts, Women in Judiciary, Peaceful Resolution of Disputes, and Education in Constitution. The Rule of Law variable measures whether ILS’ constitutions contain references to the principle of rule of law, with 26 percent of all constitutional acts mentioning this notion. The Supreme Court dichotomous variable measures if a constitution refers to a supreme/​high/​cassation court. Some examples are the Superior Courts of Gambia, including the Supreme Court, mentioned in the 1997 Constitution, or the Supreme Court of Nigeria described in the 1999 Constitution of Nigeria.52 In my data, the majority of constitutions contain such provisions (67 percent). The Secular Courts variable is coded 1 if a mainstream secular court system exists during a particular state year, and 0 otherwise (if it does not exist, or it is limited to very specialized jurisdiction). Saudi Arabia provides a good example here. A definite majority of ILS in my data have a secular court system (77  percent of state years).53 The Women in Judiciary variable captures whether women are allowed to serve as judges in either sharia courts or secular courts. In 38 percent of my observations, women can serve as judges. It is crucial to keep in mind, however, that this variable reflects the historical evolution of the officially endorsed judicial requirements, the written letter of the law. But in

51 See Hibbing and Alford 2004; and Tyler 1990. 52 See Article 120 of the 1997 Constitution of the Gambia and Article 230 of the 1999 Constitution of Nigeria. 53 Oman is an interesting example of one of the ILS that did not use to have secular courts but now does. Mauritania had secular courts from 1960 until 1983, when reforms expanded sharia to apply to all jurisdictions. Religious courts have a particularly strong position in the legal systems of Comoros, Saudi Arabia, and Yemen.

 



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several ILS, despite the official legal rhetoric of gender inclusiveness, women face practical hurdles in their efforts to join the judiciary.54 The Peaceful Resolution of Disputes dichotomous variable captures whether a constitution mentions the peaceful settlement of international disputes. Interestingly, only a small minority of Islamic constitutions talk about this notion (14  percent of state years). Examples include Gambia (1997–​ 2012), Qatar (1971–​2012), and Algeria (1989–​2012). Finally, the Education in Constitution variable captures whether education provisions of any kind (secular, religious, sharia) are included in a constitution. This variable in essence controls for the effect of education inclusion in the constitution—​writ large—​w ithout reference to its content. A total of 83 percent of constitution-​ years directly mention education at least one time. Interestingly, out of all recorded constitutional mentions of education, only 11  percent are secular in nature, and the overwhelming 89  percent involve mentions of education with an Islamic or religious bent. Moreover, only 3  percent of constitution-​ years include references to secular education in isolation, without other education reference of any kind. In the remaining overwhelming majority of constitution-​years (97 percent), references to secular education either appear alongside religious or sharia education references or are absent altogether. Overall, the percentage of ILS’ constitutions that contain a reference to education has increased over time, rising from 67 percent in the late 1950s to 97 percent in the 2000s, but the nature of these references does not necessarily reflect the general tendency in the West to incorporate the right to education in constitutional texts.

Control Variables In addition to these variables of interest, I  control for specific characteristics of the disputed territory:  ethnic value, economic value, and strategic value. Research shows that salience of the contested land affects states’ choices of resolution venues.55 Disputed territory has strategic value if it is located at or near military bases, major shipping lanes, or choke points for ships. Economically valuable territory is located at or near a significant amount of natural resources, such as fishing grounds, oil, iron, copper, or diamonds. A territory has ethnic value if there are ethnic minorities living on the other side of the border. These three dichotomous variables are coded 1 if the land has a particular value for both



See ­chapter 2 for more discussion of this issue. Huth 1996.

54 55

 

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Isl amic L aw and International L aw

disputants, and 0 otherwise. Findings regarding the value of disputed territory are somewhat mixed. For example, Gent and Shannon empirically show that as the territory’s salience goes up, non-​binding third-​party resolution methods are less likely to occur.56 However, Mitchell et al. find that higher salience levels make third-​party resolution methods more likely.57 I also consider states’ military capabilities as an important factor in predicting preferences of conflict management mechanisms. The variable Capabilities accounts for the expectation in the literature that states relatively equal in power should be more likely to utilize third-​party methods.58 I employ the Correlates of War’s National Capabilities Index, dividing the larger of the two military capabilities’ scores by the sum of the two.59 A resulting score of 0.5 indicates perfect parity between the disputants. A value of 1.0 indicates asymmetry. The next control variable, Joint Democracy, captures whether the disputing states share Polity IV democracy scores in any given dyad-​year, coded 1 if both states score 6 or higher.60 This variable accounts for the influence of regime type on states’ choices of resolution venues. Some scholars propose and empirically demonstrate that democracies should be more supportive of international courts.61 Democracies’ respect for in-​court proceedings arguably carries over into the international realm. Thus, democracies are likely to engage third-​party conflict management venues because of their inherent confidence in law and legalized venues. This argument, however, may not hold in the context of ILS, as these states embrace a unique approach to dispute resolution. Democratic norms may work quite differently in societies where there are strong alternative norms favoring informal dispute resolution. Likewise, some studies put in question the general idea that democracies are naturally attracted to more formal conflict management venues.62 Next, I also measure whether a dyad has fought an armed conflict related to the dispute in the past fifty years. The Past Fight dichotomous variable is constructed using the Correlates of War data set.63 The disputants may be in greater need for third-​party assistance if their past is conflictual. The literature shows that most mediations occur in rivalries or the most hostile dyads. As the dyadic relationship shifts toward peace, mediation is not used as often.64 The Time variable is a 56 Gent and Shannon 2011. 57 Mitchell, Kadera, and Crescenzi 2008. 58 Allee and Huth 2006. 59 Singer, Bremer, and Stuckey 1972. 60 Marshall, Gurr, and Jaggers 2016. In my data, state-​level democracy scores range from 0 (Gambia 1994–​2008) to 10 (Malaysia 1957–​1968). 61 Simmons 1999. 62 See Gent and Shannon 2011; and Mitchell, Kadera, and Crescenzi 2008. 63 Jones, Bremer, and Singer 1996. 64 Goertz, Diehl, and Balas 2016, 160.

 



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straightforward measure of lapsing time as the dispute progresses. Including this variable in the model is necessary because disputant’s preferences toward specific conflict management venues may change over time, particularly as the international legal system continues to develop. Also, the broader dyadic relationship evolves over time, and disputants generally gravitate toward the legal mechanisms when other methods have failed.65 The final control variable that I employ, Treaty Commitments, accounts for the number of pacific settlement treaties—​global and regional—​of which both disputants are members in the same year. I obtained this variable from the Multilateral Treaties of Pacific Settlement Data Set—​Issue Correlates of War (ICOW) Project.66 Scholarship suggests that membership in such organizations or treaties augments a country’s support for international adjudicative institutions.67 In theory, one might expect that being part of many pacific settlement treaties signals a state’s increased embeddedness in the global promotion of peace. Such countries, unequivocally committed to conflict management, are probably more enthusiastic about using third-​party assistance.

Empirical Analysis To test my hypotheses, I estimate a multinomial logit model.68 Recall that the dependent variable, a disputant’s attempt at a settlement venue, consists of three categories: bilateral negotiations, non-​binding third-​party methods, and binding third-​party methods. The models’ estimates presented in Table 5.5 are followed by substantive effects in Table 5.6, where I set each variable at its mean or mode while varying the variable of interest.69 Binding third-​party methods constitute the base outcome. Thus the estimates in Table 5.5 are a comparison between negotiations or non-​binding third-​party methods and arbitration/​adjudication.

65 The attempt-​based structure of the data calls for such a measure of time. The Year variable captures system-​level as well as dyadic-​level changes over time. 66 Hensel 2005. 67 Shannon 2009. 68 Multinomial logit models depend on IIA (Irrelevant Alternatives Assumption). Thus, for robustness checks, I have also estimated a multinomial probit model, and the results are virtually identical. 69 It is also interesting to investigate what explains the probability for territorial disputes between Islamic law states compared with non-​Islamic dyads and mixed dyads. I conducted several additional statistical analyses using the ICOW data set (Hensel 2005). In the context of Militarized Interstate Dispute (MID) occurrence, there is no statistical difference between the three possible pairwise configurations of domestic legal systems. Yet, a dyad composed of one Islamic law state and one non-​Islamic law state is, on average, involved in smaller number of wars than non-​ILS’ dyads. This difference, although statistically significant, is miniscule.

 

Table 5.5. Multinomial Logistic Regression: Peaceful Resolution of ILS Territorial Disputesa Independent Variable

Negotiations

Standard Non-​binding Third-​ Errors party Methods

Standard Errors

Islamic Law Sharia/​Islam

−0.023*

0.014

−0.022

0.019

Holy Oath

0.619

0.861

0.443

0.871

Muslim Head of State

1.716***

0.556

1.681**

0.793

Supremacy of Sharia

−1.553*

0.836

−3.169***

0.944

Sharia-​Based Education

13.656**

6.932

16.221**

6.581

Customary Law

−0.943

1.023

−2.645*

1.396

0.621

0.698

−0.327

0.644

Supreme Court

−0.466

1.158

0.500

0.976

Secular Courts

−4.919***

1.650

−3.759*

1.945

1.367*

0.746

0.650

0.903

−1.614

1.123

−0.076

1.154

2.860

1.953

2.751

1.691

Strategic Value

−0.660

0.829

1.342

0.936

Economic Value

−0.047

1.087

−1.884*

0.965

Secular Law/​Shared Features Rule of Law

Women in Judiciary Peaceful Resolution of Disputes Education in Constitution Controls

Ethnic Value

1.867***

0.681

0.724

0.810

Capabilities

4.648*

2.618

−0.257

2.094

Joint Democracy

−0.704

0.991

0.751

1.807

Past Fight

−0.866

0.709

0.689

0.820

Global Treaty Commitments

0.356

0.453

0.335

0.595

Regional Treaty Commitments

−0.473

0.427

0.384

0.757

Time

−0.169***

0.036

−0.148***

0.035

333.567***

71.291

295.530***

67.814

Constant N Pseudo R2 Log Pseudo-​Likelihood

516 0.3586 −291.44861

Note: Binding third-​party methods are the base outcome. Cluster robust standard errors are provided, *** p