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.
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
And for Charles
Dla moich córeczek, Scarlett Sophii i Saski Emilii
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
LIST OF FIGURES
2.1 Map of Islamic law states 51
2.2 Muslim population in ILS and non-ILS 51
2.3 Sharia/Islam in ILS’ constitutions 63
2.4 Sharia/Islam in ILS’ constitutions, relative counts, 1945–2012 64
2.5 Holy oath in ILS’ constitutions, 1945–2012 66
2.6 Muslim head of state requirement in ILS’ constitutions, 1945–2012 67
2.7 Supremacy of sharia in ILS’ constitutions, 1945–2012 68
2.8 Islam/sharia education in ILS’ constitutions, 1945–2012 70
2.9 Customary law in ILS’ constitutions, 1945–2012 71
2.10 Rule of law in ILS’ constitutions, 1945–2012 73
2.11 Supreme Courts in ILS’ constitutions, 1945–2012 74
2.12 ILS with secular courts, 1945–2012 75
2.13 Women in the judiciary, 1945–2012 76
2.14 Peaceful resolution of disputes in ILS’ constitutions, 1945–2012 77
2.15 Education in ILS’ constitutions, 1945–2012 78
5.1 Settlement attempts during the Bahrain-Qatar dispute 175
5.2 ILS’ attempts at peaceful resolution: ILS and non-ILS addressee, 1945–2012 182
6.1 Islamic law at the International Court of Justice, 1945–2014: jurisprudence 213
6.2 Islamic law at the International Court of Justice, 1945–2014: summary 213
7.1 Islamic schools of jurisprudence: map 243
LIST OF TABLES
2.1 Presence of Islamic Law and Secular Law/Shared Features in ILS, 2012 80
5.1a ILS’ Peaceful Resolution Proposals in Territorial Disputes, 1945–2012 168
5.1b Non-ILS’ Peaceful Resolution Proposals in Territorial Disputes, 1945–2012 169
5.2 Peaceful Resolution Attempts by ILS, 1945–2012 172
5.3a ILS’ Attempts at Arbitration and Adjudication, 1945–2012 181
5.3b Non-ILS’ Attempts at Arbitration and Adjudication, 1945–2012 181
5.4 Descriptive Statistics: Islamic Law and Secular/Shared Legal Features 184
5.5 Multinomial Logistic Regression: Peaceful Resolution of ILS Territorial Disputes 190
5.6 Substantive Effects: Peaceful Resolution of ILS Territorial Disputes 191
5.7 ILS and Non-ILS: Peaceful Resolution of Territorial Disputes 200
6.1 ILS Cases at the International Court of Justice, 1945–2014 209
6.2 Islamic Law at the International Court of Justice, 1945–2014: Details 215
6.3 ILS’ Commitments to the International Court of Justice, 1945–2012 219
6.4 Descriptive Statistics: Islamic Law and Secular/Shared Legal Features 221
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-A zem, 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
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.
1 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 chapter 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 chapter 2 for more discussion of the relationship between sharia and secular law and governance).
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.
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.
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—f undamentally 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.
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 A s Otto (2010b, 27) notes, “the modalities of incorporation” differ substantially across time and space in the Islamic milieu.
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
24 See Roberts 2017.
25 Abou El Fadl 2003a, 179.
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.
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 chapter 7.
31 A s 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.
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
34 See Hefner 2016; Hussin 2016.
35 See Hefner 2016.
36 Abou El Fadl 2003a, 201.
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).
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.
38 Bilder 1981.
39 See Powell 2013a, 2016; Powell and Wiegand 2010 and 2014; and Wiegand and Powell 2011.
40 Mitchell and Powell 2007 and 2011; Powell 2018b.
